Anna Kucharski and Comcare

Case [2014] AATA 626

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )

)        No: 2013/4230

General Administrative Division               )

Re: Anna Kucharski
Applicant

And: Comcare
Respondent

CORRIGENDUM

TRIBUNAL:             Mr R G Kenny, Senior Member

DATE:   5 September 2014

PLACE:                  Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application and replace “Andrew” after paragraph 35 and before paragraph 36 with “Anthony”.

..........................[Sgd].........................................

Senior Member

[2014] AATA 626  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/4230

Re

Anna Kucharski

APPLICANT

And

Comcare

RESPONDENT

Decision

Tribunal

Senior Member R G Kenny
Date 2 September 2014
Place Brisbane

The Tribunal affirms the decision under review.

..........................[Sgd]..............................................

Senior Member R G Kenny

CATCHWORDS

WORKERS’ COMPENSATION - Liability accepted for major depressive disorder, single episode - Claim for permanent impairment – Condition not permanent - Decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 14, 24, 27, 28

CASES

Filla v Comcare (2001) FCA 964

Hargreaves and Telstra Corporation Limited [2013] AATA 579

Harvey v Comcare (2000) AATA 654

O'Connell and Comcare [2012] AATA 532

O’Maley v Comcare (1997) 48 ALD 300

SECONDARY MATERIALS

Guide to Assessment of Permanent Impairment (Edition 2.1)

REASONS FOR DECISION

Senior Member R G Kenny

2 September 2014

BACKGROUND

  1. In accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988


    (“the Act”), Comcare (“the respondent”), on 22 June 2012, accepted liability for


    Anna Kucharski’s (“the applicant”) “major depressive disorder, single episode” as being an injury related to her work with the Department of Defence (“the Department”). She first sought medical treatment on 22 December 2009 and this was accepted as the date of injury in accordance with s 7(4) of the Act. On 9 April 2013, the applicant lodged a claim for permanent impairment and non-economic loss under ss 24 and 27, respectively, of the Act. In a determination on 27 June 2013, the respondent rejected that claim and this was affirmed in a reviewable decision on 5 August 2013.

    LEGISLATION AND ISSUES

  2. Provisions of the Act relevant in this matter read:

    “permanent” means likely to continue indefinitely.

    24       Compensation for injuries resulting in permanent impairment

    (1)  Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

    (2)  For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

    (a)       the duration of the impairment;

    (b)       the likelihood of improvement in the employee’s condition;

    (c)  whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

    (d)       any other relevant matters.

    (3)  Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

    (4)  The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount…

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Details
AGLC
Anna Kucharski and Comcare [2014] AATA 626
Case
[2014] AATA 626
Decision Date

CaseChat Overview and Summary

In the case of Anna Kucharski and Comcare, the applicant sought compensation for permanent impairment resulting from a psychiatric condition arising from workplace bullying. The matter was heard and determined by the Administrative Appeals Tribunal (AAT). The primary legal issues were whether the applicant's psychiatric condition resulted in permanent impairment and, if so, the degree of impairment under the relevant statutory guidelines. The Tribunal had to consider various factors, including the duration of the impairment, the likelihood of improvement, the applicant's participation in rehabilitation programs, and other relevant matters.

The Tribunal found that the applicant's condition had not resulted in permanent impairment. This conclusion was based on the general psychiatric opinion that there was a favourable prognosis for the applicant, provided the employment-related stressor was resolved. The Tribunal noted the applicant's engagement in multiple rehabilitation programs and her participation in social activities, which indicated some improvement in her condition. Despite the severity of her symptoms, the Tribunal was not satisfied that the impairment was permanent. Consequently, the Tribunal did not need to determine the level of impairment under the relevant tables.

The Tribunal affirmed the original decision of Comcare, which declined to award compensation for permanent impairment. The Tribunal's decision was influenced by the authorities cited by both parties, which included cases such as Hargreaves and Telstra Corporation Limited, Fillav Comcare, and O'Connell v Comcare. These cases provided precedents on the interpretation of permanent impairment in similar contexts.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issues for determination are whether the impairment from the applicant’s psychiatric condition is permanent and, if so, what the associated degree of impairment is under Table 5.1 of the Guide. EVIDENCEThe applicant The applicant’s evidence[3] was that, since 1999, she has been employed by the Department within the Defence Material Organisation (“DMO”). It is not disputed that her depressive disorder resulted from bullying in the workplace by her supervisor. She was based in Sydney and has been on sick leave since September 2012. In November 2012, she returned to her home town of Brisbane where she resides with her mother and brother in the family home. She has been engaged in successive rehabilitation programs with the goal of returning to work. Her current program provider, since May 2014, is CIM Groups (“CIM”) where her case is managed by Ms Katrina Humphrys who is an Occupational Psychologist and Rehabilitation Consultant. Previously, her program providers were Konekt, from August 2010 in Sydney, and Advanced Professional Management (“APM”) from December 2013 until May 2014, in Brisbane. The applicant described the symptoms that she experiences as including constant tiredness, difficulty in sleeping, memory problems, trembling in her legs and hands, involuntary arm movements, chest pain, shallow breathing, “fogginess” in her hearing and diarrhoea. She has difficulty being outdoors in open areas and spends most of her time at home, mainly alone in her bedroom. She agreed that she walks from her home to the bus stop, even though this is in the open air, and is able to do so because she forces herself to continue. She has a good relationship with her mother and brother, but avoids face to face contact with others and telephone calls although she utilises the texting facility on her phone. She spends a lot of time each day using her computer on which she plays various games to stimulate her and on which she maintains contact with friends through Facebook. She also uses the internet to look for work and, in particular, views the Commonwealth Government Gazette and the separate websites of some Government Departments. She has no vehicle but is able to drive and uses her mother’s car from time to time. The applicant is independent in caring for herself, doing her washing and maintaining her own room. She relies on her mother for provision of her meals but she assists with washing the dishes after meals. She believes that her condition would deteriorate if she was not staying with her mother. She has overcome a hoarding compulsion which she displayed when living by herself in Sydney and which resulted in her apartment being almost completely filled with items stacked to the ceiling to the extent that it was difficult to negotiate passage from room to room, or even see the floor. Things improved for her when she moved to Brisbane. Comparing her present circumstances with those in Sydney, the applicant said that she has fewer panic attacks and none of the serious events that would cause her to “completely freak out”. Her hand-trembling has improved and she no longer has suicidal thoughts. She felt that she continued to improve until the end of 2013 but has “plateaued” since then. In describing her functioning level, she said: “I can wash myself, buy food and get on a bus. That’s all”. She did not feel “connected” and was unable to maintain a relationship, in which regard she said that had tried to engage with partners “but had no feelings.” Despite that, she had a sexual relationship in both 2013 and 2014 which lasted for three and two months, respectively.

Decision

Reasons for decision

Having regard to the factors listed in s 24(2) of the Act, I am not satisfied that the applicant’s work-related injury has resulted in permanent impairment.[13] As the Tribunal has previously stated, it is open to the applicant to apply again for compensation for permanent impairment should her circumstances change.[14] As I have found that the requirements for permanent impairment have not been met, it is unnecessary to consider the level of her impairment under the Impairment Tables. [13] In doing so, I have considered the authorities referred to by both parties. [14] See Hargreaves and Telstra Corporation Limited [2013] AATA 579 at [72].DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

In relation to the level of impairment, Mr Harding submitted that, when a proper analysis is made of the activities of daily living in the applicant’s case, the threshold level of 10% under Table 5.1 is not achieved. He submitted that the decision under review ought be affirmed. Authorities he referred to were Hargreaves and Telstra Corporation Limited[8], Fillav Comcare[9] and O’Connell v Comcare.[10][8] [2013] AATA 579[9] (2001) FCA 964.[10] [2012] AATA 532.CONSIDERATION Under s 24(1) of the Act, the respondent is to pay compensation to an employee where a compensable injury results in a permanent impairment. In so determining, regard must be had to the factors in s 24(2) of the Act viz:(a) the duration of the impairment;(b) the likelihood of improvement in the employee’s condition;(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and(d) any other relevant matters. It is common ground that the applicant has experienced symptoms of her depressive disorder since December 2009 even though she continued to work with the Department until September 2012. Since 2010, she has been engaged in three rehabilitation programs. Initially, this was with Konekt in Sydney while she was still working but improvement in her symptoms was not noted until she returned to Brisbane in November 2012, and resided in the family home with her mother and brother. From October 2013, she was engaged in a second rehabilitation program with APM in Brisbane but this was discontinued in April 2014 with the applicant “continuing to experience significant psychological symptoms” and with no employment found for her. Since then, the applicant has been undertaking a further rehabilitation program with CIM, counselling with psychologist Anna Clarkson, and treatment by Dr Calder-Potts. Dr George and Dr Klug provided opinions about the applicant’s current treatment regimen. Before referring to that, I have noted that the general thrust of psychiatric opinion is that there is a favourable prognosis for the applicant. That was the case with Dr Synott in December 2011, Dr Kovacevic in September 2013, Dr Shaikh in May 2014 and Dr Calder-Potts in July 2014. However, the common thread in those reports is that the relevant stressor was the applicant’s work with the Department and the view that the applicant’s rehabilitation will require the resolution of that employment-related problem. That was also the opinion of Dr Wilkins in December 2010. Dr Klug expressed strong negative opinions about the effectiveness of all occupational rehabilitation programs. When the particulars of the CIM program were explained to him he maintained his general criticism. The strength of his views appeared to mask the circumstances of the applicant as he saw them. He said that the kinds of social engagements undertaken by the applicant in 2013 and 2014, as given in her evidence, were no different from the details she provided to him when he saw her and which he recorded in November 2013. I do not accept his evidence in that regard. She meets up with friends she has met since returning to Brisbane, she attends functions where large numbers of people congregate, she has participated in learning and teaching groups on a regular basis, she drives her mother’s car to venues such as Movie World, she has participated in themed evenings by dressing in the style appropriate to the function, and she has had sexual relationships in both 2013 and 2014. I am satisfied that the applicant’s interest in engaging, and her ability to engage, in those kinds of activities is not consistent with the opinions expressed by Dr Klug in his reports or his evidence.