Bell and Comcare (Compensation)

Case [2021] AATA 832

Bell and Comcare (Compensation) [2021] AATA 832 (12 April 2021)

Division:GENERAL DIVISION

File Number:2019/4363          

Re:Michelle Bell  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:12 April 2021

Place:Brisbane

The Tribunal affirms the decision under review.

................[SGD].................................................

Member D Mitchell

CATCHWORD

COMPENSATION – accepted injury - major depressive disorder and panic disorder with agoraphobia – whether the Applicant continues to suffer the effects of the accepted injury – whether permanent impairment – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Australian Postal Corporation v Oudyn [2003] FCA 318

Evangeline v Department of Human Services T/A Child Support Agency [2013] FCCA 807

Lees v Comcare [1999] FCA 753

Prain v Comcare [2017] FCAFC 143

Roxas and Comcare [2012] AATA 747

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

Weatherburn and Comcare (Compensation) [2019] AATA 4196

SECONDARY MATERIALS

Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)

REASONS FOR DECISION

Member D Mitchell

12 April 2021

INTRODUCTION

  1. Ms Michelle Bell (the Applicant) is seeking review of a decision of the Respondent dated 22 May 2019.[1]

    [1]     Exhibit 1, T Documents, T1.4, pages 68-70, Reviewable Decision.

  2. The reviewable decision[2] affirmed a determination dated 29 March 2019[3] to deny compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for permanent impairment and non-economic loss in respect of the Applicant’s previously accepted claim for major depression disorder, single episode and agoraphobia with panic attacks condition (accepted injury) with a deemed date of injury of 18 December 2008.[4]

    [2]     Exhibit 1, T Documents, T1.4, pages 68-70, Reviewable Decision.

    [3]     Exhibit 1, T Documents, T1.2, pages 49-50, Determination Decision.

    [4]     Exhibit 1, T Documents, T1.4, pages 68-70, Reviewable Decision.

    BACKGROUND AND CLAIMS HISTORY

  3. The Applicant commenced employment with the Department of Human Services (the Department) in February 2007 as a Customer Services Officer within the Child Support Agency. Her role involved managing Child Support cases primarily by phone contact.[5]

    [5]     Exhibit 1, T Documents, T3, pages 82-83, Claim for Workers’ Compensation.

  4. On 28 April 2009, the Applicant lodged a claim for compensation for ‘anxiety disorder/depression’ for which she indicated she first sought medical treatment for on           17 or 18 December 2008. The Applicant claimed her injury was caused by sexual harassment by another staff member during the usual course of undertaking her duties.[6]

    [6]     Exhibit 1, T Documents, T3, pages 72-104, Claim for Workers’ Compensation.

  5. In response to the Applicant’s sexual harassment complaint a Code of Conduct Investigation Report was issued in August 2009.[7] The report concluded that four of the total eight claims made by the Applicant were substantiated.[8]

    [7]     Exhibit 1, T Documents, T30, page 359, Decision of Coker J, Evangeline v Department of Human           Services T/A Child Support Agency [2013] FCCA 807 at [12].

    [8]     Exhibit 1, T Documents, T7, pages 143-184, Code of Conduct Investigation Report.

  6. On 22 September 2009, the Respondent made a determination to refuse the Applicant’s claim…

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AGLC
Bell and Comcare (Compensation) [2021] AATA 832
Case
[2021] AATA 832
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against a reviewable decision that affirmed a determination to deny compensation under sections 24 and 27 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The compensation sought was for permanent impairment and non-economic loss arising from the Applicant's accepted conditions of major depression disorder, single episode, and agoraphobia with panic attacks, with a deemed date of injury of 18 December 2008. The Applicant had commenced employment with the Department of Human Services in 2007 and lodged her claim for compensation in April 2009, alleging her injury was caused by sexual harassment.

The legal issues before the Tribunal were whether the Applicant continued to suffer from the accepted injury for the purposes of the SRC Act, and if so, whether that injury resulted in a permanent impairment and non-economic loss. The Tribunal was required to determine if the Applicant's condition still met the definition of an injury under the SRC Act, as this was a prerequisite for assessing permanent impairment and non-economic loss under sections 24 and 27.

The Tribunal reasoned that for an assessment of permanent impairment and non-economic loss to be made under sections 24 and 27 of the SRC Act, it must first be satisfied that the Applicant continues to suffer from an injury as defined by the Act. The Tribunal agreed with the Respondent's contention that the Applicant's condition was a disease and that she was required to continue to meet the requirements of section 5B of the SRC Act. The Tribunal applied the principle from *Prain v Comcare* [2017] FCAFC 143, which held that for an applicant to continue to suffer an injury for the purposes of sections 24 and 27, the causative threshold must continue to be met.

Consequently, the Tribunal found that the Applicant was no longer suffering from an injury for the purposes of the SRC Act as at the date of the hearing. Therefore, the Applicant had no present entitlement to compensation for permanent impairment or non-economic loss under sections 24 and 27 of the SRC Act in relation to her accepted injury. Accordingly, the reviewable decision was affirmed, albeit for different reasons than those initially presented.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The reviewable decision[2] affirmed a determination dated 29 March 2019[3] to deny compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for permanent impairment and non-economic loss in respect of the Applicant’s previously accepted claim for major depression disorder, single episode and agoraphobia with panic attacks condition (accepted injury) with a deemed date of injury of 18 December 2008.[4] [2] Exhibit 1, T Documents, T1.4, pages 68-70, Reviewable Decision.[3] Exhibit 1, T Documents, T1.2, pages 49-50, Determination Decision.[4] Exhibit 1, T Documents, T1.4, pages 68-70, Reviewable Decision.BACKGROUND AND CLAIMS HISTORY The Applicant commenced employment with the Department of Human Services (the Department) in February 2007 as a Customer Services Officer within the Child Support Agency. Her role involved managing Child Support cases primarily by phone contact.[5][5] Exhibit 1, T Documents, T3, pages 82-83, Claim for Workers’ Compensation. On 28 April 2009, the Applicant lodged a claim for compensation for ‘anxiety disorder/depression’ for which she indicated she first sought medical treatment for on 17 or 18 December 2008. The Applicant claimed her injury was caused by sexual harassment by another staff member during the usual course of undertaking her duties.[6][6] Exhibit 1, T Documents, T3, pages 72-104, Claim for Workers’ Compensation. In response to the Applicant’s sexual harassment complaint a Code of Conduct Investigation Report was issued in August 2009.[7] The report concluded that four of the total eight claims made by the Applicant were substantiated.[8][7] Exhibit 1, T Documents, T30, page 359, Decision of Coker J, Evangeline v Department of Human Services T/A Child Support Agency [2013] FCCA 807 at [12].[8] Exhibit 1, T Documents, T7, pages 143-184, Code of Conduct Investigation Report. On 22 September 2009, the Respondent made a determination to refuse the Applicant’s claim for compensation.[9] The Applicant sought review of that determination.[10] On 10 June 2010, the Review Officer affirmed the determination to refuse the Applicant’s claim for compensation.[11][9] Exhibit 1, T Documents, T11, pages 248-254, Decision to Decline the Applicant’s Claim for Compensation.[10] Exhibit 1, T Documents, T12, pages 255-266, Reconsideration Request.[11] Exhibit 1, T Documents, T13, pages 267-273, Reviewable Decision to Affirm the Earlier Determination to Decline the Applicant’s Claim for Compensation. With the consent of the parties, the Tribunal determined on 11 November 2010 that the Respondent was liable to pay compensation to the Applicant for major depressive disorder and panic disorder with agoraphobia with a date of injury being 18 December 2008.[12][12] Exhibit 1, T Documents, T18, pages 290-291, Decision of the AAT made by consent. The Applicant resigned from her employment with the Department in November 2010.[13][13] Exhibit 1, T Documents, T1.1, page 31, Compensation Claim for Permanent Impairment and Non- Economic Loss.

Evidence

Evidence Before The Court

On cross-examination, the Applicant:[27] [27] Transcript, pages 10-33.·Outlined the medication she had been on since 2010.·Said that her dosage of Moclobemide was 600 milligrams however that there was a period of weaning on and off the medication where the dosage was phased in or out at 300 milligrams. She weaned off the medication when she found out she was pregnant with her children who were born in 2012 and 2014 until after she was finished breast feeding. After her second child she breast fed for 2 years so was not taking medication up until 2016-2017 at which time she weaned back onto the medication.·When asked if she was taking 600 milligrams of the medication today or yesterday, said no. Said she had not taken it for a few months as her weight got to a point where because her sleeping and eating habits were disturbed, it had increased around 30 kilograms and her doctor said her weight was at a point where she had to do something about it. Dr Alroe weaned her off the medication so that she could take a weight loss drug called Duromine which cannot be taken at the same time as an antidepressant.·Said it was fair that she was probably prescribed Duromine at some point in 2019, but no earlier than 2018.·Said, Dr Alroe retired sometime in 2019 and since then she has seen Dr Butt twice. Dr Alroe had been her treating practitioner for 10 years and since Dr Alroe has not been available Dr Butt has taken over, she would say that she is under the care of Dr Butt who is still at the same health care practice. ·Said that she did not presently consult a psychiatrist, as it is difficult to find a psychiatrist in Townsville who has not assessed her for Comcare or had some involvement along the way.·Confirmed that she filed and served a report of Ms Anderson and that the report was for the purpose of the proceedings. Ms Anderson was not treating her.·Said that she was not currently consulting a psychologist.·Said that she was not currently employed.·Said she had no recollection of being diagnosed with depression when her father died in 1999. It was a traumatic event to lose her father at 16 years of age. ·When taken to a document called “Health Status Assessment” found in the Supplementary T-Documents, confirmed that she had signed the document and that in response to the question do you or have you ever had anxiety or stress reaction or depression, the answer was entered as yes with the explanation provided as “1999, depression following death father”. She said that she does not accept that in at least 2007 she thought she had suffered from depression in 1999.·Said she does not accept that she was prescribed anti-depressant medication following her father’s death. Counsel took her to medical notes from the Healthlink Family Medical Centre, where Dr Fabio Ballestro noted “a short period of depression following her father’s death when she was put on antidepressants”. Said, she accepts that is in the report, however that she has no recollection of being officially diagnosed with depression or placed on any medication whatsoever.·Said she had been open about the fact that she had been officially diagnosed with depression and placed on antidepressants in 2007 and 2008 in relation to her marriage breakdown and that was the first time to the best of her knowledge.·Confirmed that she was married in 2004 and separated in 2007 and that in early 2007 she started seeing a psychologist for cognitive behaviour therapy in relation to panic attacks she was experiencing and that she also saw an EAP service.·Said she was diagnosed with something in the range of depression and/or anxiety and was placed on antidepressants and other medication in that period. It was good support.·Confirmed that at that time of her marriage breakdown she was looking for a second job and sought approval from the Department. She did this so that she could take over the mortgage on her house in her name only. The bank had assessed her income as not enough to service the mortgage so she had to seek a second job to place her income at a level to satisfy the bank she could service the mortgage, it was only ever a temporary step.·Confirmed she was involved in legal proceedings in relation to ongoing child custody arrangements in 2017 which was with a new partner.·Said her relationship with the father of her children commenced at the end of 2009. She had made her Comcare claim in about April. That relationship ended in April 2014. ·Confirmed that there was an ongoing dispute over custody arrangements that ended up with proceedings in the Federal Circuit Court, which resolved by consent in 2017.·Confirmed that between 2014 and 2017 she was engaged in a dispute only about the children, not financial affairs, just parenting matters.·Said she was appointed Legal Aid to assist her with the proceedings.·Confirmed that her first child was born in January 2012 and that she was therefore pregnant in 2011.·When asked if she experienced a worsening of her psychological symptoms while she was off antidepressants while pregnant, said she could not remember. When taken to a report of Dr Anand Gundabawady dated 11 February 2013 where it was written: “She reports after she became pregnant with her son she stopped with antidepressant medication. She reports she coped well without medication and said she did not have any worsening of her symptoms.” and it was put to her that she had reported this to Dr Gundabawady and asked if she accepts it was accurate, said that the whole picture had to be looked at. She ended her employment at Westpac after feeling she had to disclose her past work difficulties and Dr Alroe said she had to stop the medication and work because she was pregnant, so out of the environment where she was embarrassed because she had told her story, she agrees then absolutely that there was no worsening of her symptoms coming off her medication.·Confirmed that around 2014 she commenced a Diploma of Naturopathy. She said, she paid the money but did not end up starting it or getting into it and she forfeited the money.·Confirmed that around that time she had purchased a business as a desperate attempt to find a way to work from home. She said, she paid the money but she did not feel right proceeding with it.·Confirmed the details of a Rehab Management Step-up Capacity Program dated 5 May 2016 that set out that at that time she had sporadic engagement with friends and was going to the gym on a weekly basis.·Confirmed the details of the Rehab Management Report dated 3 June 2016 that set out that at that time she remained independent and highly competent in self-care, home maintenance and in the care of her children, she had nil incapacity with home tasks, observed or reported. Said that during that time she took care of her children’s needs however did not always take care of her own. Confirmed that she had re-engaged with shooting and the gym and was socialising on a weekly level.·In relation to the Rehab Management Report dated 17 October 2016 agreed that at that stage she had her children on a 50/50 custody arrangement and that she was socialising weekly or fortnightly, shooting and performing activities with her children, studying a dive course and was retraining.·In relation to the Rehab Management document dated 31 March 2017 agreed that she had started work at the Zoo Health Club, had been shopping regularly, completing sessions at the gym, participating in a roller derby team and engaged with BMX Training Club as a volunteer.·Confirmed this continued as at 30 April 2017 and that she had been invited on a trip with the roller derby team however did not attend.·Said that when her son started Prep she started helping in the class room and that she started to undertake a Certificate III Teacher’s Aide course. ·Said that Dr Caniato had not ever been her treating practitioner.Medical Evidence

Decision

Reasons for decision

As the Tribunal has found that the Applicant does not presently have an injury for the purposes of the SRC Act, it follows that she is not entitled to compensation for permanent impairment or non-economic loss pursuant to sections 24 and 27 of the SRC Act. CONCLUSION The Tribunal finds that the Applicant as at, at least the date of Hearing was no longer suffering an injury for the purposes of the SRC Act. Consequently, the Tribunal finds that the Applicant has no present entitlement to compensation for permanent impairment or non-economic loss pursuant to sections 24 and 27 of the SRC Act with relation to her accepted injury. Accordingly, albeit, for different reasons, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Respondent contended that the Tribunal ought to find that the Applicant no longer suffers from the accepted injury and seeks a decision that the reviewable decision is varied and a finding is made that:[71](a)the Applicant has no present entitlement to compensation for her accepted injury; and(b)the decision is otherwise affirmed.[71] Respondent’s Outline of Submissions handed up at Hearing, page 18, paragraph 67.CONSIDERATION The Tribunal notes that, rightly there was no dispute or argument raised in relation to the correctness of the decision to accept liability under section 14 of the SRC Act for the Applicant’s major depression disorder, single episode and agoraphobia with panic attacks condition. The jurisdiction of the Tribunal in this matter extends only as far as considering the Applicant’s entitlement to compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in relation to the accepted injury. This Tribunal is not making a decision in relation to ongoing entitlement to compensation under sections 16 or 19 of the SRC Act. The Tribunal considers that the starting point for considering whether entitlement to compensation for permanent impairment and non-economic loss exist requires the Tribunal to be satisfied that the Applicant continues to suffer from the accepted injury and that if so the condition continues to meet the definition of an injury for the purposes of the SRC Act. Only once the Tribunal is satisfied of those points is it then necessary to continue to consider whether the accepted injury results in a permanent impairment, and if so to what extent. For the purposes of the SRC Act, section 5A and 5B set out the requirements for a condition to be considered an injury. The Tribunal acknowledges that the Applicant contended that the Tribunal did not need to consider whether her condition met the tests to be considered an injury as her condition had previously been accepted. The Tribunal however disagrees with this argument on the basis that both sections 24 and 27 of the SRC Act clearly require ‘an injury to an employee’ to result in a permanent impairment. As such no such assessment can be made until consideration is given to whether an injury for the purposes of the SRC Act continues to exist. For the purpose of the SRC Act, where an injury does not continue to exist it will further be incapable of causing a permanent impairment. The Tribunal accepts the Respondent’s contentions in relation to this issue and agrees that the decision of the Federal Court in Prain v Comcare [2017] FCAFC 143 (Prain) applies, in that for the Applicant to continue to suffer an injury for the purposes of sections 24 and 27 of the SRC Act the causative threshold must continue to be met. The Respondent contended that that the Applicant’s condition was a disease and as such she was required to continue to meet the requirements of section 5B of the SRC Act in order for her condition to be considered to be an injury for the purposes of compensation being payable under sections 24 and 27 of the SRC Act.