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Performance meeting ends worker’s comp claim

July 01, 2016

Lim v Comcare [2016] FCA 709

A worker has attempted to appeal an Administrative Appeals Tribunal decision to dismiss her worker’s compensation claim. The claim had been refused on the basis that her psychiatric injury was partly caused by a poor performance review.

The Tribunal found that worker’s injury was excluded from worker’s compensation by operation of section 5A of the Safety, Rehabilitation and Compensation Act 1988. This came despite the Tribunal accepting that possible bullying and other factors may have contributed to the injury.

On appeal to the Federal Court of Australia, Justice Flick upheld the Tribunal’s decision and dismissed the worker’s appeal. Justice Flick held that the Tribunal had correctly applied s 5A of the Act, which precludes compensation for an injury that occurred as a result of “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.

The Tribunal found that a performance appraisal on the 31st January 2011 had contributed to her injury. Consequently, her compensation claim was excluded by operation of s 5A of the Act.
At the Tribunal hearing, the date of injury proved to be a key point of contention in the worker’s claim, as the exclusion in s 5A of the Act cannot apply to an administration action that occurs after the injury.

The worker alleged that she sustained the psychiatric injury between September and October 2010, after her manager directed her to respond to complaints with a template letter. The worker felt that such a course of action was wrong and may be unlawful. The worker claimed that she felt bullied because her manager refused to change her mind.

It was heard at the Tribunal that the worker told her GP that she was suffering from work related stress in December 2010 and had taken several days off work. However, she was well enough to return to work soon after and the Tribunal found this indicated she was not “then operating outside the boundaries of normal mental functioning and behaviour”. This persuaded the Tribunal that the worker was not, at that time, suffering from the psychological injury.

Instead, the Tribunal established that the worker had sustained the potentially compensable injury in the days preceding her diagnosis of “adjustment reaction with depression/anxiety” on the 18th March 2011.Taken together with evidence from the worker’s manager and her GP’s notes, the Tribunal was satisfied that the performance review materially contributed to her psychiatric injury.

The Tribunal acknowledged that the dispute surrounding the template letter might have had a greater influence on her injury, however as her injury came in part from a reasonable administrative action, she was precluded from claiming worker’s compensation for her condition.

The worker sought to appeal this decision in the Federal Court, alleging that the Tribunal had erred on several points of law.

Principally, counsel for the worker argued that the Tribunal had incorrectly sought to find a clinical diagnosis of the worker’s psychological condition, inconsistent with a recent High Court decision that held that the statutory meaning of injury did not require a clinical diagnosis. By doing so, the worker claimed that they had sidelined evidence of her mental state in September to October 2010, prior to the performance appraisal.

The worker also contended that the Tribunal had incorrectly linked the performance appraisal with her injury, by reasoning that any connection was a sufficient causal connection.

Justice Flick dismissed all points of appeal and upheld the Tribunal’s findings. Justice Flick found that “there was no express or implicit search for a clinical diagnosis by the Tribunal on the facts of the present case”. He found that the Tribunal had adequately considered the competing submissions, including evidence of her mental state in September to October 2010.

Likewise, Justice Flick affirmed the Tribunal’s rationale in connecting the performance review to the worker’s injury.

“However many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of those causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury,” Justice Flick said.

“The exclusion, clearly enough, operates where there may be multiple causes of a claimant’s injury. The exclusion is not confined to those circumstances where the reasonable administrative action was the ‘only’ cause of injury,” he said.

In dismissing the appeal, Justice Flick ordered the worker to pay the costs of Comcare.

In this case, the employer’s actions were protected by law. The employee was unable to claim worker’s compensation for an injury that came as a result of ‘reasonable administrative action’.

Employers may feel encouraged by this decision; however, they must not attempt to abuse the statutory exclusion. Taking action that falls outside the scope of ‘reasonable administrative action’ may attract a costly payday.

Before any taking action with an employee, which you feel may cause issues down the line, contact the National Retail Association on 1800 RETAIL (738 245).

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