Carney and Comcare (Compensation) [2016] AATA 36: Tribunal Finds in Favour of Claimant

Friday 26 February 2016 @ 8.49 a.m. | Industrial Law | Legal Research

A decision handed down in January 2016 by the Administrative Appeals Tribunal (AAT), has found in favour of the Claimant (Sandra Carney) for compensation for mental harm arising from a minor workplace disagreement over a workflow chart at the Australian Federal Police's (AFP) Canberra headquarters in January 2014.

Background

Ms Carney, who has a history of workplace conflict and of lodging claims against Federal workplace insurer Comcare going back 20 years, successfully appealed the insurer's refusal to pay out her claim for "adjustment disorder".

In 1998, the Claimant lodged a claim for a stress-related disorder against a previous employer, Telstra. In 2014, there was a series of incidents or events at her workplace which it was variously asserted by the parties contributed to the condition or conditions which formed the basis of her present claim.

The Incident

The incident which led to Ms Carney's latest Comcare claim began on 21 January 2014, when she declined to discuss a workflow chart in a meeting with her acting boss because she and her team had not had a chance to read the document.

Ms Carney's supervisors were unhappy about the incident and when her permanent boss returned from leave, another meeting a few days later made matters worse when she claimed she was "paraded" before her colleagues during a search for a free meeting room.

Substance of the Claim

Ms Carney claimed she "felt upset, humiliated, embarrassed and traumatised by her treatment before and during the meeting and cried all the way home".

By September 2014 she had received two adverse performance assessments and been removed, as part of a restructure, from her team leader position. After the second performance assessment, Ms Carney lodged her workers' compensation claim which Comcare refused, leading to the present AAT appeal.

The “Glass Jaw” Condition

Two medical experts were called to give evidence at the hearing and both acknowledged there to be some predisposition on Ms Carney’s part to injury arising from workplace conflict. With this “glass jaw” leading to emotional reactions to a succession of workplace incidents, there is a difficulty in attributing a particular mental condition to incidents on particular dates.

In his judgment, Deputy President Humphries said at [para 25]:

The evidence strongly suggests that Ms Carney responded emotionally, even viscerally, to incidents of workplace stress. Both experts acknowledged that she was prone to such reactions when she perceived she was subjected to bullying or unfair treatment. Prof Robertson commented that her experience of such treatment was tantamount to a narcissistic injury. She clearly has a particular susceptibility to adverse reactions in these settings – an eggshell skull, as her counsel described it – but this fact does not diminish the reality of the psychological impact this has occasioned during her working life, nor does it make those reactions any less compensable if the legal test of an ailment is satisfied.

Impact of this decision on Public Service Employers

The outcome of this decision sends a message to public sector employers that a worker's "glass jaw" will be no defence if they lodge compensation claims for psychological injuries .

Successful Comcare claimants are entitled to be paid their full salaries for their first 45 weeks off work and 75 per cent of their salary, plus medical and pharmacological expenses, until they either return to work or reach retirement age.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

'Glass jawed' public servants entitled to compo, tribunal rules – smh.com.au

Carney and Comcare (Compensation) [2016] AATA 36 (29 January 2016) 

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