Binno and Comcare (Compensation) - [2022] AATA 19

Binno and Comcare (Compensation) [2022] AATA 19 (12 January 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2020/3337

GENERAL DIVISION )
Re: Ninos Binno
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL: Chris Puplick AM, Senior Member
DATE OF CORRIGENDUM: 28 January 2022
PLACE: Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision such that:
1.in the first sentence at paragraph 25, the first name that appears is replaced with ‘RC’ in that and every subsequent reference to that name;
2.in the first sentence at paragraph 25, the second name that appears is replaced with ‘RA’ in that and every subsequent reference to that name;

3.in the first sentence at paragraph 26, the first name that appears is replaced with ‘DC’ in that and every subsequent reference to that name;

4.in the first sentence at paragraph 27, the second name that appears is replaced with ‘NG’ in that and every subsequent reference to that name; and

5.in the quote at paragraph 29, the name that appears at paragraph (b) of that quote is replaced with ‘CA’ in that and every subsequent reference to that name.

.............................[sgd]......................................
Chris Puplick AM, Senior Member
Division:GENERAL DIVISION
File Number(s): 2020/3337
Re:Ninos Binno
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:12 January 2022
Place:Sydney

The decision under review is affirmed.
.................................[sgd].......................................
Chris Puplick AM, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – whether there are any ailments or aggravations of ailments affecting the applicant’s psychological or physical condition – whether any such ailments or aggravations of ailments have been significantly contributed to by the applicant’s employment – whether any psychological condition arose as a result of reasonable administrative action – whether injury arose out of, or in course of employment – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A and 14
CASES
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Australian Postal Corporation v Lucas (1991) 33 FCR 1010
Binno and Comcare (Compensation) [2019] AATA 237
Comcare v Mooi (1996) 42 ALD 495
Hunter Valley Developments Pty Ltd and Ors v Minister for Home Affairs and Environment (1984) 3 FCR 344
Kelson v Forward (1995) 39 ALD 303
Lim v Comcare [2016] FCA 709
Lynch and Comcare [2010] AATA 38
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
SECONDARY MATERIALS
Australian Human Rights Commission, Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (Summary Report, November 2021)
Australian Public Service Commission, APS Values and Code of Conduct in practice: and Statistical Manual of Mental Disorders, Fifth Edition (American Psychiatric Association, 2013)
Gordon de Brouwer, ‘Bullying and Harassment in the Public Sector in Australia: Practical Ways to lift Respect in Public Service Workplaces’, (Paper presented to Institute of Public Affairs):
REASONS FOR DECISION
Chris Puplick AM, Senior Member
10 January 2022

Mr Ninos Binno (the Applicant)…

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.

Continue reading Binno and Comcare (Compensation)

Details

AGLC: Binno and Comcare (Compensation) [2022] AATA 19
Case: [2022] AATA 19
Decision Date: 12 January 2022

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Binno, against a decision by Comcare to reject his claim for compensation. The applicant sought compensation for a lumbar spine condition and a psychological condition, specifically mixed anxiety and depression. Comcare had previously rejected these claims in 2017, and a subsequent reconsideration decision affirmed this rejection. The applicant failed to appeal these decisions within the prescribed time, and an application for an extension of time to appeal was refused by the Tribunal. The present proceedings therefore focused on whether any ailments or aggravations of ailments affecting the applicant's psychological or physical condition had been significantly contributed to by his employment, and whether any psychological condition arose as a result of reasonable administrative action.

The Tribunal was required to determine whether the applicant's claimed lumbar spine condition could be relitigated, given the previous final decisions. It also needed to assess the applicant's current claims for psychological injury, including whether he suffered from a recognised psychiatric condition and whether such a condition was significantly contributed to by his employment. The Tribunal also considered the legal principle that terms with a pejorative connotation, such as "bullying and harassment," should be used with care to avoid unfair damage.

The Tribunal reasoned that the applicant's claim concerning his lumbar spine condition had been finalised through previous appeal processes and could not be relitigated. The Tribunal exercised its discretion under section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) to exclude further consideration of this matter, noting that relitigating it would constitute an abuse of process. Regarding the psychological condition, the Tribunal noted that while the applicant self-reported symptoms of anxiety and depression, no formal psychiatric diagnosis had been made. Medical evidence indicated that the applicant had attended some sessions with a psychologist, but did not connect with the practitioner. Another psychologist suggested symptoms pointing to Mixed Anxiety and Depression, but the Tribunal observed that the question of whether these manifestations constituted a genuine psychiatric condition recognised by the DSM-5 remained open.

The Tribunal affirmed Comcare's decision. The claim relating to the applicant's lumbar spine condition was excluded from consideration as it had been finalised. The Tribunal did not find that the applicant had established a recognised psychiatric condition significantly contributed to by his employment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant was self-represented while Comcare was represented by Counsel and three solicitors, supervisors or instructors. The hearing was conducted over four days in order to accommodate witnesses.IMPACT OF PREVIOUS TRIBUNAL DECISION Sometime in 2016 or 2017 the Applicant lodged a claim under the Act for compensation relating to injuries involving “lumbar spondylosis” and “mixed anxiety and depression.” These claims were rejected in an initial Comcare decision of 31 August 2017 which was subsequently affirmed by a further reconsidered decision on 11 December 2017. The Applicant then had until 9 February 2018 to lodge an appeal in this Tribunal against that decision[8]. He failed to do so. Rather, he delayed until 10 January 2019 before making such an application and an accompanying application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for an extension of time to do so. The application for an extension of time was heard by me on 21 February 2019 and refused on 27 February 2019. [8] Administrative Appeals Tribunal Act 1975 (Cth) s 29(2). In doing so I had regard to the principles laid down in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[9] and held that the Applicant had provided no reasonable explanation for the delay in lodging his appeal and that, in any event, the appeal had little prospect of success.[10][9] (1984) 3 FCR 344.[10] Binno and Comcare (Compensation) [2019] AATA 237 at [29]-[30]. The refusal of the extension of time had the effect of providing a final affirmation of Comcare’s decision to refuse the application as it related to that specific condition/claim. The claim now before this Tribunal, insofar as it relates to issues concerning the Applicant’s “lumbar spine” condition appears to be exactly the same claim as was determined by Comcare in 2017. That matter is now finalised and the Comcare decision to reject liability stands. The Applicant cannot relitigate that matter now, especially in the absence of any evidence (there being none forthcoming)[11] which differs from that under consideration in 2017. Section 33 of the AAT Act empowers the Tribunal to manage its own affairs and frees it from being bound strictly by the formal rules of evidence. Paragraph 42B(1)(c) of the Act also allows for the dismissal of an application which the Tribunal considers to be an “abuse of process” of the Tribunal. The Tribunal does not deem it appropriate to exercise such power in this instance as only the claimed lumbar spine condition would constitute such an “abuse of process” if it were re-litigated.[11] T-documents at 136 and 524. Therefore, the Tribunal considers it appropriate to exercise its discretionary powers under section 33 of the AAT Act to exclude from consideration in these proceedings any further reference to the lumbar spine condition on the basis that this matter has otherwise been finalised through all available appeal processes.

Ratio Decidendi

Legal Principle Established

Terms like “bullying and harassment” are tossed about randomly in much of the material and records before the Tribunal, which takes note of the comments of Finn J in Kelson v Forward to the effect that:Words that have a pejorative connotation need to be used with particular care. Used inappropriately they can damage unfairly… [25][25] Kelson v Forward (1995) 39 ALD 303 at 314.CONSIDERATION OF CLAIM FOR PSYCHOLOGICAL CONDITION The medical evidence before the Tribunal establishes clearly that the Applicant exhibits and self-reports various forms of anxiety and depression, but no psychiatric condition has been diagnosed formally. The question of whether or not the manifestation of anxiety and depression goes beyond that experienced as part of the warp and weft of everyday life and spills over into a genuine psychiatric condition as recognised with DSM-5 terms, is always an open question. Dr Lam, who appears to have been the Applicant’s principal treating General Practitioner referred him to Ms Raquel Hara, a Registered Psychologist as part of a prepared GP Mental Health Care Plan for “treatment of anxiety”. He attended Ms Hara’s clinic on 21 July 2017, but it seems that he did not connect with Ms Hara and after an initial session did not reschedule any further appointments.[26] Nevertheless Ms Hara recorded that the Applicant reported having wrist and lower back pain allegedly associated with being bullied at work. She administered a Depression, Anxiety and Stress Scales test and diagnosed that the Applicant’s results “indicated Extremely Severe Depression, Normal Anxiety and Moderate Stress.”[27] The Applicant did not return to see Ms Hara and later informed Dr Potter that: “He has seen the most recent psychologist approximately twice in the last six months. He added the detail that the psychologist prior to the current one, ‘I didn’t like the way she was going’; ‘then requested to see a man.’”[28][26] COVID-19 Bundle at 153.[27] Ibid at 152.[28] T-documents at 281. Dr D’Silva (Clinical Psychologist) suggested that:“Mr Binno continues to report and display symptoms that point to the diagnosis of Mixed Anxiety and Depression (DSM V Diagnosis).[29]…During consultations, it has become increasing clear that Mr Binno continues to experience severe symptoms of long-term psychological illness that is considered to be of a severe nature.”[30][29] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (American Psychiatric Association, 2013) (DSM-5) at 222-226.[30] T-documents at 35-36. Among the symptoms Dr D’Silva recorded were: “symptoms of low mood, feelings of inadequacy, feelings of hopelessness, lack of motivation, lack of confidence, low self-esteem, extreme feelings of disappointment, disrupted and insufficient sleep (insomnia), constant emotional fatigue, drowsiness throughout the day, social avoidance, social anxiety, social isolation, lack of interest in pleasurable activities, low tolerance to stressors, excessive worry and anxiety, deterioration in memory, concentration difficulties, financial distress, physical limitations to daily household tasks such as cooking, cleaning, washing dishes, doing the laundry, vacuuming, grocery shopping etc.”[31][31] Ibid.

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2020/3337
GENERAL DIVISION	)