Decisions for the week ending 25 May 2012
Fernandez and Telstra Corporation Limited  AATA 310 (22 May 2012)
Mr Fernandez (the Applicant) applied for a review of two Reviewable Decisions made by Telstra Corporation Limited (the Respondent). One of these Reviewable Decisions denied liability in respect of the Applicant’s claimed psychological condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
The Applicant was employed as a linesman with the Respondent for 12 years. The Applicant had a constitutional schizophrenic condition and contended that he suffered from depression as a result of the back pain that he experienced from an accepted work-related injury, as well as the Respondent’s mistreatment.
At the hearing, the Respondent contended that the Applicant did not suffer from depression, or alternatively, that it was unrelated to his employment.
Whilst the medical evidence explained that a person suffering from schizophrenia could also discretely suffer from depression, the Tribunal found that the weight of medical evidence suggested that this had not occurred in this case. The Tribunal accepted the evidence that the most likely explanation for the Applicant’s depressive symptoms was that they were a negative feature of his schizophrenia.
In light of these conclusions, the Tribunal was not satisfied that the Applicant’s depressive illness was contributed to, to a significant degree, by his employment. Accordingly, the Tribunal affirmed the Reviewable Decision concerning the Respondent’s liability for the Applicant’s depressive condition.
James and Comcare  AATA 309 (22 May 2012)
The Tribunal was convened to determine whether Comcare (the Respondent) was liable for Mr James’s (the Applicant’s) hearing loss under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). The Tribunal was required to consider whether the Applicant sustained the claimed injury in accordance with sections 4, 6 and 7 of the Act as in force prior to the 2007 amendments of the Act.
The Applicant had worked for the Department of Transport since 1990 as a truck driver, crane operator and forklift driver working around heavy machinery. In 1997, the Applicant lodged a claim for compensation for ‘deafness related to industrial noise’ claiming that he first noticed the effects of his hearing loss ‘a couple of years ago’. He did not hear back with respect to this claim and did not follow it up.
Subsequently, on 24 April 2009 the Applicant lodged another claim for compensation for binaural hearing loss, attributing his injury to constant noise exposure in the workplace. On 31 August 2009, the Respondent accepted liability for this conduction. However, on 15 September 2009, upon reconsideration, the Respondent revoked its earlier decision and denied liability for the Applicant’s condition. The Applicant lodged an application for a review of that Reviewable Decision.
The Tribunal noted that the only evidence regarding the levels of noise that the Applicant was exposed to in the workplace was based on his own subjective account. The Tribunal also noted that part of the medical evidence was based on the Applicant’s account of his working conditions which was inconsistent with his evidence at the hearing.
Ultimately, the Tribunal was not satisfied that the Applicant was exposed to noise at levels sufficient to be a cause noise-induced deafness in his employment. It followed that the Applicant's employment did not materially contribute to the claimed injury. In light of this finding, the Tribunal held that the Respondent was not liable for the Applicant’s condition and affirmed the Reviewable Decision.
Fernandez and Telstra Corporation Limited  AATA 310 (22 May 2012)
The other Reviewable Decision before the Tribunal in this matter concerned the Respondent’s liability to pay the Applicant incapacity benefits pursuant to section 19 of the Act. This Reviewable Decision refused the Applicant’s claim for incapacity benefits in relation to three injuries to his back whilst he was working as a linesman in 1996, 1998 and 2001, for which the Respondent had accepted liability.
At the hearing, the Respondent contended that any incapacity suffered by the Applicant was the result of factors unrelated to the accepted back injuries. The Respondent submitted that it was implausible that there was any link between the accepted back injuries and the Applicant’s current incapacity given that after each injury he continued to work without restriction, following short recovery periods.
The weight of the medical evidence indicated that the genesis of the Applicant’s back problems was the first injury in 1996. This injury resulted in a disc prolapse which was vulnerable to further damage. The Tribunal considered the effect that a subsequent injury which occurred in 2007 (for which liability had not been accepted) had on establishing a causal link between the compensable injuries and the Applicant’s incapacity. In this regard, the Tribunal was of the view that a finding that the 2007 injury substantially contributed to the Applicant’s incapacity was not incompatible with a finding that the original injury in 1996 had materially contributed to the incapacity.
The Tribunal noted that whilst the Applicant’s current physical incapacity for employment was undoubtedly a result of a number of factors, including his unhealthy weight and lack of fitness, it was satisfied that the accepted back injuries, in particular the first, materially contributed to his incapacity.
As such, the Tribunal set aside the Reviewable Decision relating to incapacity and remitted the matter to the Respondent to determine accordingly.
Practice and procedure
Section 6A: Unintentional consequences
Exclusions and reasonable administrative action
National Australia Bank Limited v KRDV  FCA 543 (28 May 2012)
The matter before the Federal Court concerned four questions of law raised by National Australia Bank Limited (the Applicant). The issue before the Tribunal had been whether the Applicant was liable for the Respondent’s psychological condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
The appeal first considered the correct interpretation of ‘reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’ as it appears in section 5A(1) of the Act. The second question of law posed was whether the Tribunal complied with its statutory obligation under section 43(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to provide reasons for its decision including its findings on material questions of fact. The third ground of appeal was whether in the absence of any finding concerning ‘material points of difference’ in the evidence, it was open to the Tribunal to find that the administrative action was not ‘taken reasonably’. Finally, the fourth ground was whether it was open to the Tribunal to find that the Respondent’s post-restructure position was not a source of concern to her given her claims to the contrary.
By way of background, the Respondent commenced employment with one of the Applicant’s subsidiary companies in 1999 as an administrator. Following a series of promotions, the Respondent was appointed to the position of Customer Service Manager. During late 2006 and early 2007 the Respondent began to suffer from deteriorated sleep and experienced fainting incidents which led her to consult her medical practitioner. Following the Respondent’s return from a period of leave, she estimated that her workload had ‘tripled’ as a result of internal re-structuring. Subsequently, on 5 June 2008 two meetings took place which ultimately precipitated the Respondent’s claim for compensation.
The first meeting on 5 June 2008 was an ‘Active Operation Management meeting’. Such meetings were held on a weekly basis and attended by eight team leaders for the purpose of planning and forecasting the workloads of the various teams. The Respondent claimed that she was ‘picked on and singled out’ by her new manager, Brendan Daly at that meeting. The Tribunal was of the view that the first meeting did not fall within the ambit of ‘administrative action … in respect of the [Respondent's] employment’.
Immediately following the conclusion of this meeting Mr Daly asked the Respondent to meet with him privately. During this meeting, Mr Daly raised concerns about the Respondent’s attitude towards her work. The Tribunal ultimately found that this meeting involved administrative action; however, it was not taken in a reasonable manner.
In relation to the first ground of appeal, the Court noted that the issue concerning the interpretation of section 5A had been settled in the case of Reeve . The Court ultimately agreed with the Tribunal’s reasoning with respect to both meetings and therefore the first ground of appeal failed.
The second ground of review related to the Tribunal’s obligation to explain its findings on material questions of fact. Specifically, this ground was raised in relation to the way in which the Tribunal reconciled the two different versions of what had occurred in the second meeting. The Tribunal, upon hearing both the Respondent’s and Mr Daly’s version of events, found that the two accounts had enough commonalities to reveal the nature of the matters discussed and the moods of the parties. The Court was of the view that the Tribunal made its factual findings based upon matters which were common ground and it was accordingly unnecessary for it to resolve the points of difference between the conflicting versions of the witnesses.
Thirdly, the Court considered whether, in the absence of any finding concerning material points of difference in the evidence, it was open to the Tribunal to find that the administrative action was not taken reasonably. The Court was also of the view that the Tribunal made its findings on facts that were common ground in this regard. The Court considered that there was ample evidence before the Tribunal to arrive at such a conclusion and that the Tribunal’s reasoning justifies its findings. The Court therefore rejected the third ground of appeal.
Finally, the fourth ground of appeal was whether it was open for the Tribunal to find that the Respondent’s post-restructure position was not a source of concern to her. As this ground was not argued before the Court, it was considered to have been abandoned. In any event, the Court also observed that there was sufficient evidence before the Tribunal to support its finding that it was the second meeting was causative of an aggravation of the Respondent’s pre-existing condition.
In light of the fact that the Court rejected all four grounds of appeal, the appeal was dismissed with costs.
Notice provisions and time limits
Recovery of compensation
Entitlement to benefits
Aids and appliances
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