Aloi and Commonwealth Bank (Compensation) - [2023] AATA 14

Aloi and Commonwealth Bank (Compensation) [2023] AATA 14 (12 January 2023)
Division:GENERAL DIVISION
File Number: 2021/6184
Re:Ms Angela Aloi
APPLICANT

AndCommonwealth Bank
RESPONDENT

Decision
Tribunal:Ms A E Burke AO, Member
Date:12 January 2023
Place:Melbourne

Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
.....................[sgd]...................................................
Ms A E Burke AO, Member
Catchwords
COMPENSATION – permanent impairment – accepted condition - whether condition is permanent – whether reasonable treatment undertaken – degree of permanent impairment - whether a “need” for supervision and direction – non-economic loss score - decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Filla (2002) 115 FCR 163
Hassan Bin Tahal v Comcare [2004] FCA 680
King and Comcare [2011] AATA 500
O’Connell and Comcare [2012] AATA 532
Winter and Comcare [2014] AATA 811
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment
REASONS FOR DECISION
Ms A E Burke AO Member
12 January 2023

The Applicant, Ms Aloi, applied for a review of a decision of the Commonwealth Bank of Australian (CBA) dated 27 August 2021 which affirmed a primary determination of 19 July 2021 awarding Ms Aloi permanent impairment and non-economic loss in respect of her accepted claim condition of adjustment disorder with depressed and anxious mood under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
On 1 September 2021 Ms Aloi sought review of that decision by the General Division of the Administrative Appeals Tribunal stating:
I believe the outcome was incorrect, and that my doctor’s findings should play some part into the decision making, not just their doctor. The difference in the percentage rating is quite different, hence the reasoning behind the review.
BACKGROUND
Ms Aloi commenced working at CBA on 22 August 2005, ceasing on 13 August 2018 as a result of her workplace injury. At the date of her claim, she was employed as a savings specialist supervisor at a suburban branch. Ms Aloi is 61 years of age, has three adult children and resides with her eldest son.
On 17 September 2019 Ms Aloi submitted a Claim for Workers’ Compensation dated 10 September 2019 alleging that she had been subjected to repeated bullying and work overload at the workplace which led her to first seek medical treatment on 13 August 2018.
On 14 November 2019, CBA accepted liability for Ms Aloi’s claim pursuant to s 14 of the SRC Act in respect of “adjustment disorder with depressed and anxious mood”:
The Claim
You have claimed that you sustained a psychological injury diagnosed as adjustment disorder with depressed and anxious mood as a result of namely two customer aggression incidents and alleged bullying and harassment from your manager. You advised of a build-up of events leading to 13/08/2018 which led to you seeking medical attention from 13/08/2018. This was made by way of claim form received…

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.

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Details

Case: [2023] AATA 14
Decision Date: 12 January 2023

CaseChat Overview and Summary

Ms Aloi sought review of a decision concerning her claim for workers' compensation against Commonwealth Bank (CBA). The dispute centred on whether Ms Aloi's accepted condition, an adjustment disorder with depressed and anxious mood, had resulted in a permanent impairment and, if so, the degree of that impairment and associated non-economic loss. The matter was heard by Ms A E Burke AO, Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether Ms Aloi's accepted condition constituted a permanent impairment, the degree of any such permanent impairment, and the appropriate score for non-economic loss, all pursuant to sections 24 and 27 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). A key element of the determination involved assessing whether Ms Aloi had undertaken all reasonable rehabilitative treatment for her condition, as this was a prerequisite for establishing permanence.

The Tribunal reasoned that Ms Aloi's condition had been of significant duration and that she had undertaken all reasonable rehabilitative treatment, with little likelihood of further improvement. While CBA contended that Ms Aloi's impairment could not be considered permanent due to her reluctance to trial antidepressant medication, the Tribunal found this argument unpersuasive. It noted that CBA had previously accepted the permanence of her impairment, even when aware of her reluctance to take medication due to potential side effects. The Tribunal also observed that Dr Assad's report, cited by CBA to suggest deterioration, actually indicated a recent exacerbation, which was understandable given the circumstances of the hearing being postponed by CBA. Applying these considerations, the Tribunal determined that Ms Aloi's accepted condition had resulted in a permanent impairment of 10% and a score of 3 for suffering for non-economic loss.

In accordance with section 43(1)(a) of the *Administrative Appeals Tribunal Act 1975*, the Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 1 September 2021 Ms Aloi sought review of that decision by the General Division of the Administrative Appeals Tribunal stating:I believe the outcome was incorrect, and that my doctor’s findings should play some part into the decision making, not just their doctor. The difference in the percentage rating is quite different, hence the reasoning behind the review.BACKGROUND Ms Aloi commenced working at CBA on 22 August 2005, ceasing on 13 August 2018 as a result of her workplace injury. At the date of her claim, she was employed as a savings specialist supervisor at a suburban branch. Ms Aloi is 61 years of age, has three adult children and resides with her eldest son. On 17 September 2019 Ms Aloi submitted a Claim for Workers’ Compensation dated 10 September 2019 alleging that she had been subjected to repeated bullying and work overload at the workplace which led her to first seek medical treatment on 13 August 2018. On 14 November 2019, CBA accepted liability for Ms Aloi’s claim pursuant to s 14 of the SRC Act in respect of “adjustment disorder with depressed and anxious mood”: The ClaimYou have claimed that you sustained a psychological injury diagnosed as adjustment disorder with depressed and anxious mood as a result of namely two customer aggression incidents and alleged bullying and harassment from your manager. You advised of a build-up of events leading to 13/08/2018 which led to you seeking medical attention from 13/08/2018. This was made by way of claim form received on 17/09/2019. You have advised that you have raised concerns about your leadership team that does not directly touch on this claim here. You are claiming medical expenses incurred in obtaining medical treatment and an incapacity for work arising from the claimed medical condition.The DecisionI have determined that your claim should be accepted and that the employer is liable to pay compensation in respect of your injury. Your entitlement to compensation will be assessed and paid in accordance with the Act.The medical. condition must have been significantly contributed to by your employment (section 58). Essentially I find in your favour that your employment was a significant contribution to the onset of your condition.In your statement dated 08/10/2019 to LS Partners you have also advised of events of workload pressures as well as a customer aggression events, namely a threatening phone call where you report this customer threatened to run his car through the branch as well as another call you were asked to make, of which Trent Morris made given your reluctance to make the call. I am satisfied that these events are employment related and have contributed to the onset of your condition.There was no evidence to support that your condition was caused by anything other than employment factors. Within the report from Dr Assad dated 04/02/2019 there was no indication of other factors or a pre-existing disposition of psychological conditions. Ms Aloi submitted a Compensation Claim for Permanent Impairment and Non-Economic Loss on 3 March 2021, in which Dr Assad assessed her as having a permanent impairment of between 20-25%. Dr Assad advised that he considered her condition would deteriorate and that all active treatment for Ms Aloi’s condition had been completed. In the non-economic loss questionnaire, Dr Assad opined in respect of Ms Aloi’s suffering:Her mental stress symptoms are wide ranging that dominate her thinking, she is rarely free of her mental stress. She has been suffering from low mood poor, concentration and motivation, sleep disturbance and lack of self-esteem

Evidence

Evidence Before The Court

The issue for determination by the Tribunal is whether Ms Aloi’s accepted claim has resulted in a permanent impairment, and if so, the degree of that permanent impairment and non-economic loss caused by it pursuant to sections 24 and 27 of the SRC Act. Evidence before the Tribunal Ms Aloi’s statement requesting a reconsideration of the primary decision, sent on 28 July 2021 states: …The reason why I'm requesting a review is the huge difference between the difference in reference to their percentage ranking. I believe that a lot of the questions asked by your examiner did not form part of my current situation and symptoms. A lot of it was focused on my childhood and family history. CBA have a lot of previous doctor's reports and examinations of prior examiners to support my diagnosis. As it clearly states on the medical reports that my injuries were sustained through the workplace, and that there are no prior mental illness. There are incidents reports that were documented through work and investigated at a higher level to support all this. All those reports were attached to my Work Cover claim.I continue to suffer from post traumatic stress disorder, anxiety and depression. My symptoms can range from:-Feelings of lack of worth Flashbacks and nightmaresNo interest in socialising, isolation Always tearful or emotional Difficulty sleeping, insomnia Lowered moodNo motivationLack of attention in appearanceLoss of interest or no longer finding pleasure in activities or hobbiesThese are just a few of what I experience constantly on a daily basis…Before I took a leave of absence, I exhausted all attempts to escalate my concerns at my workplace i.e. the bullying and the workload but the Manager (that being…), did not listen to my requests or support me in anyway, instead I was subjected to relentless bullying and work overload. It was only after I took leave of absence that I submitted a formal complaint through to the 'Speak Up Line". As a result of these incidents at work, I continue to suffer from anxiety neurosis, panic attacks and depression. This has profoundly impacted all aspects of my day-to-day life now.Before the workplace incident, I was decisive, conscientious, reliable and hard working, success oriented and self-motivated. All this showed through my continued Performance Reviews. Since the incident I struggle on a daily basis. I don't have much in the way of family support. My parents are elderly and require assistance with their living arrangements. My younger sister resides with them so she is busy with them. I only have one son that resides with me, but he works full-time. He helps with the chores, and when I require his assistance with household activities. My other son resides in Sydney, married with 2 children, and my youngest daughter moved out last year with her partner. She lives over an hour away, so I hardly see her either. I have feelings of loneliness and isolation all the time. Although my son lives with me, his work keeps him busy and on the weekends he is out with friends.

Decision

Reasons for decision

The Tribunal, having considered all the evidence before it, determines that Ms Aloi’s accepted condition has been of significant duration, that she has undertaken all reasonable rehabilitative treatment and that there is little likelihood of any improvement. The Tribunal finds Ms Aloi’s accepted condition has resulted in a permanent impairment of 10% and a score of 3 for suffering for non-economic loss.decision Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Counsel for CBA submitted that Associate Professor Khalid’s evidence that Ms Aloi is not taking any antidepressant medication indicated that she did not meet the criteria for a 4 rating as treatment was necessary to control symptoms and in the absence of treatment the score could not rise to 4 in suffering. ConsiderationPermanent Impairment In summary, CBA would be liable to pay permanent impairment compensation under the SRC Act in relation to Ms Aloi’s accepted claim if it results in a “permanent impairment”. In order to determine whether Ms Aloi has a permanent impairment, the Tribunal must have regard to whether Ms Aloi has undertaken all reasonable rehabilitative treatment for the impairment. Prior to the hearing there was no dispute between the parties that Ms Aloi’s accepted claim had resulted in a permanent impairment. At the hearing, CBA contended that Ms Aloi’s impairment could not be considered permanent as she had not undertaken all reasonable treatment. Counsel asserted that this new position was informed by Dr Assad’s medical certificate of 4 August 2022 where he opined her condition had deteriorated. Whilst the Tribunal is fully cognisant of the fact that its determination is de novo, it was still perplexed by CBA now disputing that Ms Aloi’s impairment was permanent. CBA had previously accepted Ms Aloi’s permanent impairment claim when they were fully appraised of her reluctance to trial antidepressant medication, as the following evidence clearly demonstrates:(a)Konekt Workcare report dated 17 December 2019: She has also been prescribed antidepressant medication by her treating general practitioner however she is reluctant to take medication due to the potential for side effects and dependency.(b)Dr Allan’s report, dated 4 June 2019:I regard her as potentially benefiting from the trial of an SSRI antideppresant medication but she indicates her reluctance to pursue such treatments at this time based on the information available to her about such medications.…Given how severely unwell she is and the lack of appropriate treatment. being utilised, I do not anticipate she will be able to return to any meaningful work within the next twelve months.(c)Dr Lewis’ report 12 June 2020:The psychiatric condition cannot be regarded as having stabilised until Ms Aloi has had robust trials of antidepressant medication and more sustained psychological therapy. I note that antidepressant treatment to date has been complicated by side effects.(d)Associate Professor Khalid’s report of 8 June 2021:Due to chronicity of her symptoms, I consider that her condition is permanent and the likelihood of improvement is remote unless she agrees to take antidepressant medication The Tribunal was not persuaded that CBA could assert that Dr Assad’s medical certificate of 4 August 2022 indicated that Ms Aloi’s condition had deteriorated, Dr Assad’s certificate states Ms Alois’s condition had “recently exacerbated”. It was of no surprised to the Tribunal that Ms Aloi, as a self-represented Applicant, advised her doctor that she was feeling heightened anxiety on 4 August 2022, given that was the day CBA informed the Tribunal and Ms Aloi that it was not ready to proceed to the listed hearing of 8 -11 August 2022 because of an administrative error on its part.