Zoumaras and Comcare (Compensation) - [2021] AATA 2668

Zoumaras and Comcare (Compensation) [2021] AATA 2668 (30 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/0740
Re:Steven Zoumaras
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:30 July 2021
Place:Adelaide

The decision under review is affirmed.
.......................[SGND]............................
Senior Member B J Illingworth
Catchwords
COMPENSATION – applicant suffers adjustment disorder - whether applicant satisfies s 5A(1)(a) or (b) of the Safety, Rehabilitation and Compensation Act 1988 – whether the applicant’s condition is excluded from being an “injury” due to operation of reasonable administrative action exclusionary provision – reasonable administrative action taken – action undertaken in a reasonable manner – decision under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Bailey and Comcare (Compensation) [2020] AATA 1244.
Comcare v Wiggins [2019] FCA 1465.
Comcare v Martin [2016] HCA 43.
Hart v Comcare (2005) 143 FCR 29.
Lim v Comcare [2019] FCAFC 104.
Martinez and Comcare [2012] AATA 795.
O’Callaghan and Comcare [2019] AATA 4378.
Sami and Telstra Corporation Limited [2012] AATA 41.
Ting and Comcare [2014] AATA 85.
Wiegand v Comcare [2002] FCA 1464.
REASONS FOR DECISION
Senior Member B J Illingworth
30 July 2021

Introduction

Mr Zoumaras (the applicant) is employed by the Australian Taxation Office (ATO) as an APS 6 Client Engagement Officer in the Tax Evasion Program Integrated Compliance division. He is currently 62 years of age.
On 22 September 2019, the applicant made an application for compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for a psychological condition, namely “adjustment disorder with features of anxiety and depression”[1]. That application was supported by a Work Capacity Certificate from Dr Gleeson dated 25 September 2019 which reported that the stated condition developed on 9 September 2019 caused by work-related stress issues[2].
[1] Exhibit A, T27, pages 90 – 94, at page 91.
[2] Exhibit A, T28, pages 95-96.
On 29 November 2019, an ATO delegate of Comcare denied liability for that condition. The delegate was satisfied that the applicant sustained the psychological condition, which was significantly contributed to by his employment with the ATO, but found that in accordance with s 5A of the SRC Act the condition arose from reasonable administrative action performed in a reasonable manner which excluded the applicant from an entitlement to compensation[3].
[3] Ibid, T44, pages 157-164.
On 23 December 2019, the applicant applied for a review of that decision[4].
[4] Ibid, T47, pages 168-169.
On 16 January 2020, an ATO review officer affirmed the decision[5].
[5] Ibid, T50, pages 175-183.
On 11 February 2020, the applicant filed an application for review of the decision of the ATO review officer[6]. Under the heading ‘Reasons for Application’ the applicant said, amongst other things, that his psychological injury arose out of his employment, and was contributed, to a significant degree by his employment (which is accepted by the respondent); but that such injury did not arise from reasonable administrative action…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zoumaras and Comcare (Compensation)

Details

AGLC: Zoumaras and Comcare (Compensation) [2021] AATA 2668
Case: [2021] AATA 2668
Decision Date: 30 July 2021

CaseChat Overview and Summary

This matter concerned an application for compensation by Mr Zoumaras against Comcare. The applicant sought compensation for an adjustment disorder with features of depression and anxiety, which he alleged arose from his employment with the Australian Taxation Office (ATO). Comcare relied on the exclusionary provision in section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), arguing that the applicant's condition arose from reasonable administrative action taken in a reasonable manner in respect of his employment. The decision was heard by B J Illingworth SM.

The primary legal issues before the court were whether the applicant had suffered an "injury" as defined by the SRC Act, and if so, whether that injury was excluded from compensation by operation of section 5A of the SRC Act. Specifically, the court had to determine if the administrative actions taken by the applicant's managers, Ms Entwistle and Mr Pennuto, constituted reasonable administrative action taken in a reasonable manner.

The court found that the applicant was an unreliable historian, perceiving events incorrectly and interpreting communications with suspicion and mistrust, which were not founded on a sound factual basis. While acknowledging the applicant's concerns regarding certain assessments in 2017, the court was satisfied that these were a consequence of his suspicion and mistrust of management, rather than unreasonable administrative action. The court was not satisfied that the applicant suffered from a psychological illness prior to commencing carers leave in April 2019, noting that his complaints to medical practitioners only commenced after receiving a referee report in September 2019. The court concluded that the applicant suffered from an adjustment disorder in consequence of receiving this referee report.

The court affirmed the decision under review. It found that the administrative actions taken by the ATO management were reasonable and conducted in a reasonable manner, thus enlivening the exclusionary provision of the SRC Act. Consequently, the applicant's adjustment disorder did not constitute a compensable injury under the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

However, the respondent relied on the exclusionary provision contained in s 5A of the SRC Act to exclude the disease as constituting a compensable injury, on the basis that the injury arose from reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.Background The applicant provided a statement dated 9 September 2019[8]. He also provided a Statement of Facts, Issues and Contentions (SOFICs)[9] which was in the nature of a further, more detailed statement, and which was, by consent, received into evidence. Together, they provide a helpful summary of the background of this matter relied on by the applicant which I will briefly summarise.[8] Ibid, T1, pages 7-25. [9] Exhibit B. The applicant commenced employment with the ATO in 1984. He resigned in 2014 on medical grounds relating to his eyesight. The ATO introduced a scheme to recruit people with a disability, and as a result the applicant was re-employed by the ATO in March 2016. From that date the applicant’s supervisor was Ms Entwistle. The applicant first underwent a Vision Assessment in 2016 and a number of recommendations were then made including as to appropriate equipment, proximity to natural light, taking regular breaks from screen time and that he be allowed to lubricate his eyes by rewetting his contact lenses[10]. [10] Exhibit A, T3, pages 27-31 at page 31. In or about June 2016, the applicant requested permission to take purchased leave. He was permitted to request that leave because he was employed through the recruitment scheme for disabled workers, and therefore he did not have to complete the usual six-month probation period before such leave could be granted. He applied to his supervisor Ms Entwistle for eight weeks of purchased leave. She raised the application with the Director, Mr Pennuto, and after addressing some initial concern as to the reason for the purchased leave, it was granted. In September 2016 the applicant applied, unsuccessfully, for a promotion to an Executive Level 1 (EL1) which was the first of four failed applications for promotion. The second was in November 2016 when he unsuccessfully applied for the position of an EL1 Tax Leader. On 5 March 2017, the applicant suffered a pulmonary embolism and was admitted to the emergency department of the Queen Elizabeth Hospital. On 14 March 2017, he returned to work. He advised Ms Entwistle and Mr Pennuto, amongst other things, that his specialist advised he take regular breaks from sitting, and that he was going to use the stairs to increase his blood flow. He said to them that he suffered a “near death experience”. Ms Entwistle and Mr Pennuto raised concern about the applicant’s work capacity following his medical episode, and that the applicant proposed to use the stairs. The applicant said he felt discriminated against and bullied due to his health issues. In April 2017, the applicant underwent an Early Intervention Assessment which did not indicate any limitation in his work capacity[11]. In the course of that assessment the applicant raised his concerns about Ms Entwistle and Mr Pennuto’s conduct towards him. The applicant referred to ongoing issues he had with Ms Entwistle. He spoke with Ms Pagano and subsequently put his concerns in writing in an email dated 19 April 2017[12]. [11] Ibid, T6, pages 37-45.[12] Ibid, T8, pages 48-49.

Evidence

Evidence Before The Court

The applicant also referred to the fact that he applied for four EL1 promotions. The fourth position, which he applied for when he was on carers leave, gave rise to Ms Entwistle’s report. He argued that in regard to the third application, he was successful, but he was not released from his existing position. This, he submitted, supported his argument that he was appropriately qualified for the fourth EL1 position and that the reference report was not conducted in a reasonable manner. The EvidenceThe applicant With the respondent’s consent I received into evidence the applicant’s SOFICs dated 17 December 2020[23] which was 65 pages in length and was in the nature of a detailed statement of the applicant’s evidence, and summary of his witnesses including expert witnesses, and his submission with respect to those witnesses. I also received his undated ‘Employee Statement’ (the Statement) which provided a chronology of events from 26 March 2016 to 11 September 2019[24] together with attachments. The applicant said he used his contemporaneous notes to prepare the Statement.[23] Exhibit B.[24] Exhibit A, T1, pages 7-25. The Applicant confirmed that he resigned from the ATO in 2014 at which time he was an EL1. He resigned because of issues with his eyesight. His doctor then said he was going blind. He returned in March 2016 as an APS 6 Officer in an audit position. He returned under a scheme for employing people with a disability. His workstation was set up to accommodate as best as possible his special needs. Upon his return Ms Entwistle became his line manager. He had not previously worked with her. He worked both alone and in a team. His initial involvement with Ms Entwistle was positive. He applied for 8 weeks of purchase leave which was available to him because he was employed under the disability scheme. The Applicant applied for a number of EL1 positions which were unsuccessful. The applicant confirmed that he suffered a pulmonary embolism in March 2017. He was off work for about 4 to 5 days and returned after first seeing his physician Dr Cobain with whom he had been consulting since 2000. Following his return to work he told Mr Pennuto and Ms Entwistle that he would be using the stairs to help improve his blood flow. He said that they raised concern that he had trouble with his vision and had just suffered a pulmonary embolism. The applicant said he could not understand why they raised that concern. The applicant acknowledged that the managers had a duty of care to employees. He said that he had a doctor’s clearance but, nonetheless, they asked that he have an Early Intervention Assessment. The applicant said that was, at that time, “fair enough”. He took no issue with his managers requiring that assessment. He acknowledged it was an assessment to determine whether an employee was fit for work as part of an occupational health and safety obligation. However, the applicant said that he queried why they also needed another vision assessment and repeated that Ms Entwistle and Mr Pennuto raised whether he should be at work. He said they requested this be done because they misunderstood the period of time the applicant had been lubricating his eyes.

Decision

Reasons for decision

Having regard to the evidence generally and the medical reports in particular, I am satisfied that the applicant was not suffering from a psychological illness prior to the commencement of carers leave on 2 April 2019. The applicant made no complaint to his treating medical practitioners of workplace issues or that he suffered symptoms consistent with a psychological condition. The first time he did so was only after he received the referee report. Having regard to the medical evidence, I am satisfied that the applicant suffered from an adjustment disorder with features of depression and anxiety in consequence of the receipt of referee report in September 2019. ConclusionAdministrative Action The applicant was an unreliable historian. I do not find that the applicant was dishonest, but I am satisfied that he perceived events incorrectly and interpreted communications with his manager Ms Entwistle and director Mr Pennuto with suspicion and a lack of trust. I am satisfied that his suspicion and mistrust was misplaced. He was unable to accept criticism about his work. His evidence that underplayed the performance issues discussed in the February and March 2019 case callovers was an example of that failure to accept criticism. That he said Mr Pennuto told him to ignore Ms Entwistle’s email and that Mr Pennuto complimented the applicant on his performance saying his work was excellent was plainly wrong. His interpretation of events was misconceived and demonstrated his inability to accept criticism and hence provide a reliable history of past events in the workplace. Having made those findings of fact, I am reminded of the Personality Assessment Inventory and the finding by the author of the observation about the applicant’s personality and behaviour. In evidence, the applicant was defensive about his shortcomings and did not admit faults. He was critical of his managers in circumstances that were not reasonable which demonstrated mistrust and suspicion that was not founded on a sound factual basis. He recounted a perception of events that indicated his mistrust of others and in particular his managers which was not consistent with the evidence before the Tribunal. My assessment of the applicant accords with the opinions expressed in the Personality Assessment Inventory. I am satisfied that in 2017 the applicant had issues with the Early Intervention Assessment and visual assessment, but those assessments requested by management were appropriate given the applicant’s health issues at the time. His concern about undertaking those assessments, and in particular the visual assessment, were a consequence of his suspicion and mistrust of management and not a consequence of unreasonable administrative action. I am satisfied that Ms Entwistle arranged a meeting with the applicant and others to address concerns raised by the applicant and thereafter the working relationship between the applicant and his manager and director was satisfactory with no ongoing conflict between them.

Ratio Decidendi

Legal Principle Established

The respondent submitted that even if the Tribunal was satisfied that the applicant suffered a psychological condition prior to taking carers leave, the provision of the referee report was reasonable administrative action conducted in a reasonable manner which enlivened the exclusionary provision of the SRC Act and that the decision under review ought to be affirmed[75]. Further, that if the Tribunal was satisfied that the applicant did not suffer from a psychological condition prior to commencing carers leave, that for the same reason the decision under review ought to be affirmed.[75] This submission was consistent with paragraph 34 of the Respondent’s written closing submissions, which referenced Hart v Comcare (2005) FCR 29 at [21]-[23] as authority for this proposition. Considerations The applicant has a history of two workplace incidents that have caused stress and distress. Those incidents include the conflict with management as referred to in the 2010 report of Dr Fry. As observed by Dr Blakemore in his report dated 28 January 2020, past episodes of workplace stress have seemed discrete and reactive to particular circumstances, with no indication that the applicant was suffering any relevant pre-existing psychological injury aggravated or exacerbated by the workplace. The applicant referred to issues he had with the workplace and of feeling, among other things, harassed and discriminated against when he was asked to undertake certain workplace assessments after he suffered a pulmonary embolism in March 2017. He conceded in evidence that management had occupational health and safety obligations to ensure that his workplace was safe. He accepted that the Early Intervention Assessment was “fair enough” when considered in that context. However, he felt discriminated against when asked to undertake a further vision assessment. There was an exchange of emails in April 2017 between the applicant, Human Resource Officer Ms Pagano, the applicant’s manager Ms Entwistle and Ms George which deal with issues the applicant had with the Rehabilitation Assessment Summary/Recommendations, and discussions he had with Ms Entwistle and his interpretation of those discussions. Ms Entwistle also raised issues in the email exchange about not knowing the applicant’s whereabouts when he left for extended periods of absence from his workstation. The applicant complained about the manner in which Ms Entwistle spoke to him and that the conversations occurred at his workstation which he said were not appropriate. In the applicant’s email to Ms Pagano dated 26 April 2017, he reported a loss of trust and confidence in his Team Leader (Ms Entwistle), an absence of support for his condition, and it was the applicant’s objective to leave the work team if possible[76]. [76] Exhibit A, T10, page 54. However, Ms Entwistle said in evidence that when she was advised of those issues, she, the applicant and members of the people support team met. She apologised that the applicant had taken a particular view about their conversations, that they reached agreement for time recording the applicant’s absence from his workstation and, from that time, she was not aware that the applicant was stressed or distressed in the workplace.