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There was no dispute that the Applicant suffered from a psychological condition which, on the medical evidence, the Tribunal found was best characterised as “depressive disorder” which was an ailment that was contributed to, to a significant degree, by his employment. Therefore the issue before the Tribunal was whether the ailment was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment such as to exclude him from receiving compensation in accordance with s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) because it would not constitute an “injury”. The Tribunal firstly found that each of the matters raised in the Applicant’s claim were actions by management which involved staff, and that each constituted “administrative action” for the purposes of the 1988 Act. The Applicant alleged that the administrative action in relation to the three matters was unreasonable. On the factual evidence before it, the Tribunal found that the administrative action involving all three matters was reasonable and taken in a reasonable manner. Furthermore, the Tribunal was satisfied that that the administrative action in the three matters was taken in respect of the Applicant’s employment and those matters caused the depressive condition suffered by the Applicant. In view of its findings, the Tribunal was satisfied that the condition suffered by the Applicant resulted from reasonable administrative action taken in a reasonable manner in respect of his employment, so it did not come within the definition of “injury” in the 1988 Act. Although there may have been other matters that contributed to the condition, no compensation was payable in accordance with the principles espoused in Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29. The Tribunal affirmed the decision under review. Wilson and Comcare [2010] AATA 396 (28 May 2010) Canberra The Applicant submitted a claim for workers’ compensation in May 2008 for “anxiety” due to “ongoing systemic unacceptable behaviour”, stress and bullying. In November 2008, the Respondent determined that the Applicant was not entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) for “adjustment reaction with mixed emotional features” on the basis that, although the Applicant’s condition was contributed to, to a significant degree, by his employment, the condition was the result of “reasonable administrative action” and thus not an “injury” within the meaning of section 5A of the 1988 Act. In these proceedings, the parties agreed that since the Applicant had conceded that the Applicant’s condition had been contributed to, to a significant degree, by his employment, the sole issue was whether the Applicant’s condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. The Tribunal found that the relevant administrative actions included: the Applicant not receiving Additional Responsibility Pay (“ARP”) at the level he expected; the informal counselling session in September 2007; the steps taken relating to the Applicant’s Performance Agreement 2006-2007; the processes surrounding the imposition of a Performance Improvement Process (“PIP”); and the meetings relating to the PIP in November and December 2007. The principal issue was whether the examples of administrative action taken by the employer that affected the Applicant were “reasonable” for the purposes of section 5A(2) of the 1988 Act. In relation to the first administrative action, the Tribunal noted that although the Applicant complained about not receiving ARP at the expected level, and that there were delays in implementing the arrangement, when offered the opportunity to pursue the matter the Applicant chose not to do so. In the circumstances, and given the absence of evidence from the Applicant on key issues, the Tribunal was not able to be satisfied as to whether the Applicant had a legitimate grievance on this issue and made no findings accordingly. As to the second example of administrative action, the Tribunal found there was nothing “untoward” about the calling or conduct of the meeting, nor was it “irrational, absurd or ridiculous”. The action did not fall within “bullying” or “abuse of power”. Given that the Applicant’s work errors were clearly not acceptable behaviour, to arrange a meeting with the Applicant to discuss the matter and counsel him was appropriate, and to do so informally complied with the employer’s policies and principles. It followed that the Tribunal found that taking this step was lawful, and was reasonable administrative action taken in a reasonable manner. Regarding the steps taken relating to the Applicant’s Performance Agreement 2006-2007, the Tribunal considered that decisions made by management in this regard were both lawful and reasonable administrative action. In terms of the imposition of the PIP, the Tribunal held that this process was instituted in a reasonable manner. With respect to the meetings held with the Applicant in November and December 2007, the Tribunal held that the holding of the meetings and how they were conducted was not unfair and in those circumstances, the action taken was not unreasonable, nor were they taken out with a “deliberate desire to hurt, threaten or frighten someone with words or actions”. Given that the actions did not constitute bullying, they were not undertaken in an unreasonable manner. The Tribunal highlighted that whilst some of the interactions between the Applicant and his manager concerned the taking of administrative action, and on their own would not be reasonable, in the circumstances, and given that reasonable action does not have to be perfect, provided it was “tolerable and fair”, the Tribunal did not find that these issues were an unreasonable manner of undertaking various administrative actions involving the Applicant. In conclusion, the Tribunal upheld
the finding that the administrative action taken in relation to the Applicant, in particular by his regional manger, were reasonable administrative actions being lawful and appropriate in the circumstances and they were not taken in an unreasonable manner. The Tribunal affirmed the decision under review. Incapacity Ezekiel and Comcare [2010] AATA 391 (26 May 2010) Sydney One of the applications brought by the Applicant concerned her claim for incapacity payments for her accepted back condition under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”). The Tribunal considered that the preponderance of medical evidence was that in 1995 the Applicant was partially incapacitated for work and was able to perform clerical duties for four hours per day for five days per week. At the time she left, she had suitable work of that kind and for those hours was available to her. The Tribunal considered, on the basis of the balance of expert medical evidence, that it was not reasonable in all of the circumstances for the Applicant to have not continued in that suitable employment. In reaching this conclusion the Tribunal was mindful of the Applicant’s stated difficulty in continuing to work, however, it did not consider that her difficulty was so great that she was unable to continue to work or that she had “no choice”, as it has been put on her behalf, but to take voluntary redundancy. The Tribunal noted that there was no direct medical evidence of marked deterioration over the last 15 years. The Tribunal accepted that advancing age would generally affect any person’s capacity to some greater or lesser extent but in the absence of any objective evidence of diminished capacity to work, or any current assessment of her current capacity to perform the type of employment she undertook in 1995, the Tribunal could not be satisfied that the work the Applicant left in 1995 was no longer suitable employment. On this basis, the Tribunal considered that the Applicant’s failure to continue to engage in suitable employment was not reasonable and that any calculation of payments under section 19 of the 1988 Act should have incorporated earnings in suitable employment of 20 hours per week. The Tribunal noted that the Applicant received a lump sum superannuation payment and thus the relevant provisions of the 1988 Act concerning the effect of such payments on the calculation of weekly incapacity payments were also applicable. To the extent that the reviewable decision in question stated that the Applicant had no current entitlement to incapacity payments, the Tribunal set aside the decision and remitted it to the Respondent with directions that the Applicant was partially incapacitated for work in that she was able to earn in suitable employment of 20 hours per week and, in respect of calculating a weekly incapacity payment, if any, she was retired from her employment and had received a lump sum benefit under a superannuation scheme. James and Comcare [2010] AATA 393 (27 May 2010) Canberra The Applicant had two accepted injuries to his left knee – a strain to the cruciate ligament and aggravation of osteoarthrosis. In February 2008, he underwent left knee replacement surgery and he claimed compensation for two periods of incapacity. The Applicant’s entitlement to incapacity during these periods was determined in the negative in two separate decisions, and this was affirmed upon reconsideration. The issue for determination was whether the Applicant was entitled to compensation for incapacity during these periods. Essentially, to be so entitled, the Tribunal noted it must have been established that the periods of incapacity resulted from an “injury” under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”). The Applicant asserted that the periods of incapacity resulted from one or more compensable injuries to his left knee. Based on the medical evidence before it, the Tribunal was reasonably satisfied, that the work-related incidents in March 2006, May 2006 and September 2007 caused minor traumas that were consistent with minor frank injuries, and those minor injuries caused the Applicant’s pseudogout symptoms to flare for a short period. It could be accepted that the injuries caused incapacity for work during those short periods, however, once the elevated symptoms diminished, the Applicant’s left knee condition returned to a state involving persistent and increasing symptoms and ongoing incapacity for work, in varying degrees. The Tribunal was reasonably satisfied that these persistent symptoms and degrees of incapacity for work were attributable to the progress of his pre-existing degenerative disease and not to the minor injuries and related elevation of symptoms in March 2006, May 2006 and September 2007. Therefore, in conclusion, the Tribunal found that the claimed periods of incapacity were not the result of an “injury” for the purposes of the 1988 Act. The Tribunal affirmed the decision under review. Permanent impairment Dean and Military Rehabilitation and Compensation Commission [2010] AATA 388 (25 May 2010) Canberra
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