YVONNE PERERA and COMCARE

Case [2013] AATA 589

[2013] AATA 589

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/5624

Re

YVONNE PERERA

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal

PROFESSOR RM CREYKE, SENIOR MEMBER
Date 22 August 2013  
Place Canberra

The decision under review is affirmed

......................................[sgd]..................................

Professor RM Creyke, Senior Member

Catchwords

COMPENSATION – Commonwealth Employees – anxiety disorder – whether reasonable administrative action – whether taken in a reasonable manner in respect of employment

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 5B, 7(4), 14

Cases

Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79

Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105

Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463

Comcare v Martinez [2013] FCA 439

Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Falconer v Pedersen [1974] VR 185

Re Findlay and Comcare [2013] AATA 324

Re Georges and Telstra Corporation Ltd [2009] AATA 731

Hart v Comcare (2005) 145 FCR 29

Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25

Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42

Secondary Materials

DC Pearce, Statutory Interpretation in Australia (6th edn, 2006)

REASONS FOR DECISION

Professor RM Creyke, Senior Member

22 August 2013

  1. Ms Yvonne Perera suffered from anxiety disorder. She sought to establish the liability of Comcare to pay compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).

  2. On 15 August 2011, liability was denied, a decision upheld on review on 16 December 2011. On 20 December 2011, Ms Perera sought further review by the Tribunal.

  3. The matter was heard in Canberra on 13 and 14 May 2013, and closing submissions were made on 12 June 2013.

    Background

  4. Ms Perera, born 1957, was employed from April 2010 as an Australian Service Officer level 4 (ASO4) in the Aboriginal and Torres Strait Islander Aged Care Workforce Section of the Department of Health and Ageing (agency). She also, with permission, was involved in a private business she had run from home since 2007, making wedding cakes. Upon arrival in Australia in 1991, Ms Perera had been employed in a variety of positions, mostly of a secretarial nature, commencing in 1992. Ms Perera left the agency in June 2011.

  5. Ms Perera first worked in the agency in 2007 and became a permanent employee from 6 November 2008. She was assigned to the Office of Ageing and Medicare in the agency in April 2010.

  6. Ms Perera worked in a branch headed by a branch head, below whom was a Director, an Executive Level 2 (EL2) officer (Ms C). Reporting to her were two assistant directors (Ms W and Ms S), both EL1s. The team in which Ms Perera worked had changed, at her request, in October 2010 from Ms…

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AGLC
YVONNE PERERA and COMCARE [2013] AATA 589
Case
[2013] AATA 589
Decision Date

CaseChat Overview and Summary

The case of Yvonne Perera and Comcare was heard in the Administrative Appeals Tribunal of Australia. Ms Perera, who was employed by the Department of Health and Ageing, sought workers’ compensation for an anxiety state she claimed was caused by incidents at work. The primary dispute was whether the administrative actions taken by her managers constituted a compensable injury under the Safety, Rehabilitation and Compensation Act 1988. The Tribunal was required to determine if the actions were reasonable and if they contributed significantly to her anxiety condition.

The key legal issues were whether the actions taken by Ms Perera's managers on specific dates were administrative actions as defined by the Act and if those actions were taken in a reasonable manner. Additionally, the Tribunal had to decide whether the reasonable actions significantly contributed to Ms Perera’s anxiety state, thereby constituting a compensable injury. Both parties agreed that the injury was significantly contributed to by Ms Perera’s employment, but the crux was whether the administrative actions met the criteria for compensation.

The Tribunal concluded that the actions taken by Ms Perera's managers were indeed administrative actions, as they were specifically directed at her employment. The Tribunal also found that the manner in which these actions were carried out was reasonable, given the circumstances and the urgency of the situation. The Tribunal found that the anxiety state Ms Perera experienced was not solely due to the administrative actions, but also influenced by her own behaviour and other factors. Consequently, the Tribunal determined that the actions did not result in a compensable injury under the Act. The decision under review was affirmed, and Comcare was not liable to pay compensation for Ms Perera’s injury.

The Tribunal's decision was based on the evidence presented, including the clinical notes, medical reports, and testimonies of the involved parties. The Tribunal held that the concessions made by both parties regarding the nature of the injury and its causation were appropriate. The Tribunal was satisfied that the administrative actions were reasonable and did not constitute a compensable injury under the Act.

Orders

Orders of the court

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Background

Background to the litigation

The matter was heard in Canberra on 13 and 14 May 2013, and closing submissions were made on 12 June 2013.Background Ms Perera, born 1957, was employed from April 2010 as an Australian Service Officer level 4 (ASO4) in the Aboriginal and Torres Strait Islander Aged Care Workforce Section of the Department of Health and Ageing (agency). She also, with permission, was involved in a private business she had run from home since 2007, making wedding cakes. Upon arrival in Australia in 1991, Ms Perera had been employed in a variety of positions, mostly of a secretarial nature, commencing in 1992. Ms Perera left the agency in June 2011. Ms Perera first worked in the agency in 2007 and became a permanent employee from 6 November 2008. She was assigned to the Office of Ageing and Medicare in the agency in April 2010. Ms Perera worked in a branch headed by a branch head, below whom was a Director, an Executive Level 2 (EL2) officer (Ms C). Reporting to her were two assistant directors (Ms W and Ms S), both EL1s. The team in which Ms Perera worked had changed, at her request, in October 2010 from Ms W’s team, to Ms S’s team. Ms Perera was working in that team with three other Australian Public Service Officers (ASOs). On 8 July 2011 Ms Perera lodged a claim for workers’ compensation for an ‘anxiety state’ the symptoms of which she said were first noticed in September 2010, and for which Ms Perera said she first sought medical treatment in November 2010.Incident 1: 6 September 2010 Ms Perera claimed her anxiety state was due to two incidents. In the first, on 6 September 2010, Ms Perera was away from her desk from about 2.00pm to 2.30pm. She said ‘I had really bad diarrhoea and I was cramping and I felt like I was going to faint, and I was perspiring cold sweat. So I stayed in the toilet, and I was afraid that if I got up I would fall and hurt myself. So I just stayed in the toilet until I felt a bit better’. Ms W had telephoned her during this time but Ms Perera had seen that it was a blocked call and did not respond. Ms Perera had not told anyone where she was going. Upon her return to her desk Ms W asked where she had been. Ms Perera responded that she had been in the toilet. Ms W, according to Ms Perera, then said ‘For 20 minutes?’ To which Ms Perera said she responded ‘Yeah, I’ve got gastro, I’m having diarrhoea’. Ms W is then said to have replied ‘No one goes to the toilet for that long’. The interchange occurred in front of other officers. According to Ms Perera all of them were listening and she said she heard laughter when Ms W expressed surprise that she had been in the toilet for that length of time. Later Ms Perera was heard talking quite loudly on the telephone discussing the incident. The office was an open plan office, separated by partitions divided into bays of either four or eight desks facing the partition on either side, and a space at the end of each block with a table for meetings. Either adjacent to or behind the person’s seat was a filing cabinet. There was a bookshelf on the other side of the desk parallel to the partition. Ms Perera said her desk was at one end of a block and Ms W’s desk was at the other end, about five to six metres apart. On this particular occasion Ms W was seated at the table and the conversation occurred when Ms Perera was returning to the table for the file updating but was still some desks away.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ms Perera’s view was that Ms C had said she had previously been in touch with HR who would be contacting Ms Perera within the week, a comment Ms C said she viewed as a threat. However, the detailed notes of Dr Wong do not corroborate this account. The Tribunal prefers the view of Ms C on this issue, given that it is likely in this novel situation that Ms C would not have sought that advice in advance of this unanticipated event, and as the other events concerning Ms Perera which had precipitated the meeting, had only occurred that day. On balance, given the provocation, Ms C’s manner of handling the meeting was not unreasonable and was tolerable and fair in the circumstances.Conclusion The Tribunal notes, in conclusion, that both meetings were instigated to discuss the arrangements for the forthcoming conference to take place within a few days. There was a degree of urgency about the correct finalisation of airline and accommodation bookings given the imminence of delegates’ departures from, in many cases, remote locations in Australia. So although the meetings became, in both instances, informal counselling sessions of Ms Perera, and accordingly would fall within the meaning of administrative action,[17] this was not their genesis. Nor did it mean that the conduct of the counselling was conducted in an unreasonable manner since what transpired at those meetings could not be anticipated and was at least in part due to Ms Perera’s own behaviour. The consequence is that the actions complained of by Ms Perera were undertaken in a reasonable manner, they were administrative actions, and any injury said to have arisen from those actions was not an ‘injury’ for the purpose of the Act.[17] Act section 5A(2)(b). The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Sections 4(1) and 5A define what is a compensable injury; section 7(4) describes what is the date of injury; and section 14 sets out when Comcare is liable to pay compensation for an injury which incapacitates for work.Consideration At the outset of the hearing, both parties agreed:·Ms Perera’s claim concerned an aggravation of an anxiety state;·the date of injury was 26 November 2010, the date on which Ms Perera first sought medical treatment for her anxiety state; and·the injury was significantly contributed to by Ms Perera’s employment (section 5B(1)). The Tribunal is required to be ‘satisfied’ that the decision is the correct or preferable decision[1] and is not bound to accept concessions made by parties.[2] In this instance, the Tribunal is satisfied, based on the clinical notes for 26 November 2010 of Dr Wong, Dr Wong’s report of 30 July 2011, the absence of any evidence to suggest an alternative cause of the injury, and the evidence of Ms Perera and other staff about the events of 6 September 2010 and 25 November 2010, that the concessions were appropriate.‘Reasonable administrative action’[1] Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 78 per Smithers J.[2] Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 at 80[1], 87[20] – [21] per French J. At the outset of the hearing, both counsel submitted that the actions taken by managers in respect of Ms Perera, particularly on 6 September 2010 and 25 November 2010, were ‘administrative actions’ and were ‘reasonable’ (section 5A(1)). As Gray J said in Commonwealth Bank of Australia v Reeve, administrative action is ‘action with respect to the employee as employee and his or her employment relationship with the employer’.[3] Rares and Tracey JJ in the majority judgment in Reeve said that ‘administrative action’ referred to ‘action…directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment’.[4][3] Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463 at [30].[4] Id at [57]. The Tribunal is satisfied that in the case of the incidents on both 6 September 2010 and 25 November 2010, the actions were taken by a manager of Ms Perera, that they related specifically to her and her employment, and were accordingly ‘administrative actions’.‘Taken in a reasonable manner’ The principal issues were whether the administrative actions identified were taken in a reasonable manner and, as conceded by Comcare, the manner in which the reasonable actions were undertaken contributed to Ms Perera’s anxiety condition to a significant degree. Ms Perera’s worker’s compensation claim described the anxiety disorder as having commenced in September 2010. As she said ‘the chain of events that led to my current injury began on 6 September when I was embarrassed by [Ms W]’. Ms Perera’s argument was that it was the cumulative impact of that event together with the events over the following two and a half months, and in particular on 25 November 2010, that led to her seeking medical treatment on 26 November 2010.