Atkins and Comcare (Compensation)

Case [2018] AATA 889

Atkins and Comcare (Compensation) [2018] AATA 889 (13 April 2018)

Division:GENERAL DIVISION

File Numbers:         2016/1099, 2016/1100, 2017/7593

Re:Christine Atkins

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:13 April 2018

Place:Melbourne

The Tribunal sets aside the decision in relation to application 2016/1099 and substitutes its decision that the generalised anxiety disorder being a mental injury arising out of employment, continues to contribute to the applicant’s incapacitation attracting liability under ss 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The Tribunal affirms the decision in relation to application 2016/1100 that the contested conditions of asthma attack, cardio-pulmonary arrest and Lance Adams syndrome was not contributed to, to a significant degree, by the applicant’s employment by the Commonwealth.

The Tribunal sets aside the decision in relation to application 2017/7593 and remits the decision to the respondent Comcare for reconsideration in accordance with the reasons given in this decision.

[sgd]........................................................................

Member

WORKERS’ COMPENSATION – verbal abuse and threatened physical violence by co-worker – rejection of mediation – failure to resolve workplace matters in the applicant’s favour – development of generalised anxiety disorder – acceptance of liability – role of latter in precipitation of asthma attack leading to cardiac arrest – post arrest epilepsy – Lance Adams syndrome – major depressive disorder – total incapacity for work – permanent impairment partially attributed to generalised anxiety disorder – decisions varied

Legislation

Safety, Rehabilitation and Compensation Act 1988

Administrative Appeals Tribunal Act 1975

Cases

Adelaide Stevedoring Company Limited and Forst (1940) 64 CLR 538
Amaca Pty Ltd v Ellis (2010) 240 CLR 111
Australian Industry Development Corporation v Boyd (1990) 95 ALR 149
Comcare v Lofts and Another (2013) 217 FCR 220
Comcare v Martin (2016) 258 CLR 467
Military Rehabilitation and Compensation Commission v SRGGGG (2005) 40 AAR 337
Re Alfred Coleman Titchener and Commonwealth of Australia [1986] AATA 63
Re Wendy Anne Lloyd and Australian Telecommunications Commission [1988] AATA 97
Rodriguez v Telstra Corporation Limited (2002) 66 ALD 579
Seltsam Pty Ltd v McGuinness and Another (2000) 49 NSWLR 262
Telstra Corp Ltd v Mahon (2004) 39 AAR 484
White and Military Rehabilitation and Compensation Commission [2017] AATA 1555

Secondary Materials
Comcare Guide to the Assessments of the Degree of the Permanent Impairment
Commonwealth Administrative Review Committee, Parliamentary Paper No 144, 1971 (Kerr Committee Report)

Some 14 Medical Journal articles provided by the Respiratory Physicians

REASONS FOR DECISION

Miss E A Shanahan, Member

13 April 2018

  1. Ms Atkins has lodged applications with the Administrative Appeals Tribunal (the Tribunal) for review of three decisions made by Comcare. The third of these, application 2017/7593, was lodged on 20 December 2017 after the commencement of the hearing and at the Tribunal’s direction was joined to the earlier applications.

  2. Application 2016/1100 relates to the reviewable decision of 3 February 2016 which affirmed the determinations of:

    (a)9 October 2015 denying liability for the contested conditions of aggravation of asthma, cardiorespiratory arrest and Lance Adams syndrome;

    (b)14 October…

Continue reading Atkins and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Atkins and Comcare (Compensation) [2018] AATA 889
Case
[2018] AATA 889
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review by Ms. Atkins against a decision by Comcare that ceased liability for incapacity payments after 3 March 2015. The reviewable decision was made on the basis that any incapacity after that date was due to contested conditions, not Ms. Atkins' accepted psychological condition of generalised anxiety disorder (GAD). The contested conditions included an asthmatic attack, cardiorespiratory arrest, hypoxic brain injury, epilepsy, and Lance Adams syndrome, which were alleged to have been provoked or precipitated by a conversation related to her GAD.

The legal issues before the Tribunal were to determine whether Comcare had correctly ceased liability for incapacity payments, and consequently, whether it was liable for the contested medical conditions. This involved assessing the causal link between Ms. Atkins' accepted psychological condition, a workplace incident involving a colleague, and the subsequent medical conditions for which Comcare denied liability. The Tribunal was also required to consider the appropriateness of ongoing psychology sessions and the liability for household aids and medication.

The Tribunal's reasoning focused on the medical evidence and its own expertise in physiological and medical matters. It acknowledged the complexity and conflicting nature of the medical reports, many of which were obtained years after the events. The Tribunal accepted that Ms. Atkins suffered from asthma, but found that prior to February 2015, her asthma attacks were infrequent and not experienced during the period of workplace anxiety. The Tribunal also noted that Ms. Atkins' memory was affected by retrograde amnesia for a specific period.

Ultimately, the Tribunal remitted the decision relating to permanent impairment due to the psychiatric condition to Comcare for reconsideration, accepting a 50:50 percentage attribution to the psychiatric Work-Related Permanent Impairment (WPI) rating. The Tribunal also found that the decision regarding the provision of psychology sessions was no longer appropriate given the continuing liability for the work-related psychiatric condition, and that any determination should be at the discretion of a treating professional. The liability for household aids and medication was made dependent on the Tribunal's decision regarding the contested medical conditions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Ms Atkins, Ms Antoinette Watson, Ms Amanda Mitchell, Ms Tamaris Damen, Ms Julie Whitehead, Mr Ross Atkins, Mr Scott Atkins, Dr Brian Dunn, Dr David Weissman, Dr Jonathan Burdon, Professor Jacques Joubert, Mr Jarrod Bull, Mr Robert Ryan, Mrs Gillian Nguyen, Associate Professor Ernest Butler, Dr Anthony Sheehan and Dr Peter Trembath all gave evidence in person. Dr Scott Chambers gave evidence by telephone.BACKGROUND TO THE APPLICATION Ms Atkins is a 59 year old single lady who completed year 12 at age 17 and then undertook a secretarial course at Stotts College over 12 months. She then became a student nurse at the Williamstown Hospital but withdrew from the nursing course after two and a half years following her mother’s sudden death. Ms Atkins had found her mother dead on the floor of their home. Following a period of grieving and some depression, Ms Atkins commenced work with a computer company (Auscom) performing data entry duties. She then worked for ten years at a pool and spa shop in Boronia. Her next job was with the Commonwealth Bank first as a teller and subsequently in debt collection. She left the bank to join the Australian Taxation Office (ATO) where she was employed in debt-collecting from businesses. When the Federal Government opened a Department of Human Services (DHS) office in Dandenong, she transferred to DHS as she lived in the Western Port Bay area and the travel distance was significantly less than that to the CBD of Melbourne, where the ATO office was sited. At DHS Ms Atkins worked in the Child Support Section, mainly collecting debts from delinquent parents who were avoiding their child support payment responsibilities to the other parent. Ms Atkins enjoyed the work and when an investigatory program known as the Search Team commenced she became part of this 14-person unit. The unit tracked parents’ income via access to the Australian Transaction Reports and Analysis Centre and also made direct contact with the parents. Ms Atkins said she enjoyed getting money for the children and in her estimate she was fast and good at my job. Her co-workers and team leaders agree with her self-assessment. Ms Atkins’ established hours of work were from 7.00am to 6.00pm three days per week. She had one day off on flex time and on Fridays she worked from 7.00am to 3.00pm. She frequently performed overtime duties on Saturdays. It appears that she worked for DHS for six and a half years, ceasing work on 24 November 2014. She was then incapacitated for work and since 25 February 2015 has been totally and irreversibly incapacitated for any work. The DHS Child Support Section workplace is a large open-plan office with pods of four workstations. The Search Team occupied four of these pods. On 9 September 2014 a co-worker, referred to as DNRB, requested the help of a senior service officer (Will Thomson) in her dealings with a parent enquiry. The problems could not be resolved immediately and DNRB became angry and inadvertently disconnected the client waiting on the telephone. She then started yelling and swearing loudly. DNRB was taken aside to an interview room by the acting team leader Gillian Nguyen to discuss the problem.

Evidence

Evidence Before The Court

All of her treating doctors and the independent medical experts have assessed her as being totally incapacitated for any form of employment, now and in the future. ORAL EVIDENCEMs Christine Atkins Ms Atkins evidence has been summarised under BACKGROUND TO THE APPLICATION. In her evidence before the Tribunal she described the level of her anxiety in relation to being in the presence of DNRB and her frustrations arising from Management’s failure to take (what she considered to be), the appropriate course of action in penalising DNRB, shifting her to another area in the building or dismissing her from employment. Despite the events between late 2014 and when she gave her evidence on 13 November 2017, Ms Atkins’ memory of the workplace chain of events was excellent despite the retrograde amnesia for events from 29 December 2014 to 18 March 2015. It was apparent to the Tribunal that when she became anxious Ms Atkins developed involuntary, jerking, uncontrollable movements of all limbs. When instructed to sit back, rest and relax, these movements abated. The Tribunal had noted that in a period of approximately one hour before she took the witness box there had been no myoclonic activity. Ms Atkins was able to describe the setup of the workplace, the desks and the proximity of her desk to that of DNRB and accurately described the events of 9 September 2014. She was aware of the post-incident referral to EAP and Carfi as well as her ongoing fear that she would suffer physical violence at the hands of DNRB. She gave evidence that her post-arrest myoclonic activity varies from day to day and also described what she termed jerking movements that commenced in her early 20s and continued thereafter. Ms Atkins was able to provide details of her past employment and the fact that she was declared bankrupt, although the date remains uncertain. She having lent $30,000 to her older brother’s wife to establish a coffee lounge in Frankston and the business failed. Ms Atkins had been forced to sell her house and lost her car. She took an overdose of alcohol and tablets, was hospitalised at the Royal Melbourne Hospital and had recovered. She lived with her brother Ross and Ms Whitehead in Langwarrin until she obtained employment in a Pool and Spa shop in Boronia where she worked for 10 years. Until May 2017, Ms Atkins had been covered by her income protection insurance as part of her superannuation and she then qualified for a Newstart allowance. Eventually, she was found to be totally and permanently disabled and accessed the TPD insurance from her superannuation fund. This enabled her to pay off the mortgage on her house and the hire purchase agreement on her car. She no longer sees a psychologist because when liability for her GAD was denied, she could not afford the treatment. She described her activities as predominantly watching television, walking her dog and trying to garden, although she frequently falls. Mr Lenczner commenced cross-examination of Ms Atkins, questioning her in particular about her hay fever, which she said was strictly seasonal, and her smoking. Ms Atkins now smokes 15 cigarettes per day, but after the incident of 9 September 2014 she had increased to 20 or more per day. She was still smoking 20 per day on 25 February 2015. Her evidence was then interrupted when she suffered a tonic-clonic myoclonic seizure, previously referred to as a grand mal epileptic seizure.

Decision

Reasons for decision

With respect to Application 2017/7593 it follows from the above decision of the Tribunal, that the 50:50 percentage attribution to the psychiatric WPI rating of either 25 or 30 per cent as advised by the psychiatrists, that the decision relating to permanent impairment due to the psychiatric condition is remitted to Comcare for reconsideration in accordance with these attributed percentage figures with which the Tribunal accepts as accurate. Reviewable decision 2016/1100 This decision relates to three determinations: these being the denial of liability for the contested conditions of aggravation of asthma, cardiorespiratory arrest and Lance Adams syndrome; the agreement to pay for 12 psychology sessions at one per month from 9 November 2015 to 9 November 2016; and the denial of liability for both medication and household aids. The Tribunal considers that the decision relating to the provision of psychology sessions is no longer appropriate or valid in light of the decision regarding the continuing liability for the work-related psychiatric condition. Any determination or advice as to the requirements of psychology sessions should be at the discretion of a treating psychiatrist or psychologist. The decision relating to liability for the payment of household aid and medication is dependent on the Tribunal’s decision in relation to the so-called contested medical conditions. The contested medical conditions There is a vast amount of medical evidence, expert reports, analysis and medical journal articles relating to asthma and anxiety. In several instances the opinions provided are conflicting or affected by incomplete data or medical history. The majority of the expert reports and opinions have been obtained years after the event. The contemporary medical expert evidence is limited to entries in the ICU record by the treating Neurology and Respiratory Medicine Units. The Tribunal notes that Ms Atkins was admitted to Frankston Hospital under the bed card of Dr David Langton, Head of the Respiratory Medicine Unit and was seen on several occasions by Dr Nicholas Manolitsas, both of whom are senior respiratory physicians known professionally to the Tribunal. Their opinions were not sought by either party. Examples of conflicting evidence, as documented in the submissions of both the applicant and the respondent, have impacted on the expert medical opinions. The Tribunal will not further analyse this aspect of the evidence but a major example is that arising in Dr Burdon’s report, wherein he recorded Ms Atkins past history as being one of poorly controlled, steroid dependent, unstable and severe asthma of many years duration. This was corrected in the course of his evidence before the Tribunal, as was the impact this history had on his opinion. The Tribunal accepts that Ms Atkins has asthma and that prior to 25 February 2015 had two documented episodes, one requiring hospital admission in 1989 according to Dr Trembath, and the other a dust exposure-induced attack that led to 4 hours observation in an Emergency Department in 2006. Ventolin had been prescribed by Dr Dunn in 2007 but not since. It is concluded that the asthma attacks were infrequent. None were experienced during the period of work-place induced anxiety between 9 September 2014 and 25 November 2014, the latter being the date Ms Atkins was certified unfit for work.

Ratio Decidendi

Legal Principle Established

Mr Lenczner’s final submission was that if the applicant did suffer from myoclonic hand movements many years earlier, there was no evidence to suggest that that predisposition played any relevant part in her condition following the asthma attack and cardiac arrest.TRIBUNAL’S DELIBERATIONS AND DECISIONIntroductory Comments The three applications for review that are before the Tribunal were heard over some 10 days with two other directions hearings over a four-month period. The documentation provided was voluminous, particularly that relating to application 2016/1100. Liability had been denied for the contested conditions of an asthmatic attack provoked or precipitated by a conversation referring to an aspect of Ms Atkins accepted psychological condition of GAD, leading to cardiorespiratory arrest, hypoxic brain injury, epilepsy and Lance Adams syndrome. The latter is characterised by involuntary, uncontrollable, cerebrally initiated myoclonic (jerking) movements of the limbs, initiated by limb movement. Given the complexity of the medical history and opinions, the Tribunal has provided more assistance than is the norm, in advising the parties how to navigate and interpret the medical data. The Tribunal’s expertise in this area arises from her qualifications, training and experience. This is in accord with the Kerr Committee Report of 1971 wherein at Chapter 16, paragraph 321 the committee recommended: that members should be chosen for the expertise in a particular field. The Tribunal has had more than 40 years involvement in constructing and analysing hospital records, has been involved in daily visits to ICUs in several public and private hospitals over a long period of time and has particular knowledge in cardiac and respiratory physiology, diseases and their treatment. These qualifications and this knowledge is in addition to her qualification in law. The Tribunal appreciates the lack of medical, including physiological, biochemical and bacteriological knowledge of the majority of legal practitioners. The reviewable decision of 4 February 2016 ceased liability for incapacity payments to Ms Atkins after 3 March 2015. The decision was made on the basis that the reviewing officer was satisfied that any incapacity after that date was due to the contested conditions and not the applicant’s accepted psychological condition. The diagnosis of generalised anxiety disorder (GAD) as accepted by Comcare was based at that stage on the reports of Dr Dunn, the treating general practitioner, that of Mr Perham of Optum Health and Technology and that of Mr Jones of Carfi. Ms Atkins was not seen by a clinical psychologist until after her transfer to the rehabilitation centre on 18 March 2015 and no psychiatric opinions were obtained by either party until after September 2016. Ms Atkins’ evidence was restricted by her total retrograde amnesia from 30 December 2014 to 18 March 2015. However, her recall of events from 9 September 2014 to approximately Christmas 2014 was good.