Briouzguine and Comcare (Compensation) - [2019] AATA 4197

Briouzguine and Comcare (Compensation) [2019] AATA 4197 (27 September 2019)
Division:GENERAL DIVISION
File Numbers:2017/6572; 2018/4658
Re:Oleg Briouzguine
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:27 September 2019
Place:Sydney

Application 2017/6572
The Tribunal decides that:
1)the decision under review, being the decision made by Comcare on 11 September 2017, is set aside;
2)in substitution, it is decided that Comcare is liable to pay compensation to Mr Briouzguine in accordance with these reasons in respect of injuries, being:
a)myocardial infarction which occurred on 3 October 2014;
b)aggravation of chronic post-traumatic stress disorder with associated major depressive disorder which occurred on 16 October 2014;

3)within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, Comcare shall pay the costs incurred by Mr Briouzguine in these proceedings.

Application 2018/4658
The Tribunal decides that:
1)the decision under review, being the decision made by Comcare on 15 August 2018, is affirmed.

...........................[sgd].............................................
Deputy President J W Constance
CATCHWORDS
WORKERS' COMPENSATION - application for review of decision affirming determination that Respondent not liable to compensate Applicant in respect of claimed injury - whether Applicant suffered “an injury (other than a disease)” - myocardial infarction - whether Applicant suffered "ailment" or "aggravation of such an ailment" - aggravation of chronic post-traumatic stress disorder with associated major depressive disorder - whether injury arose “out of, or in the course of,” the Applicant’s employment - whether ailment "contributed to, to a significant degree" by Applicant's employment - decision under review set aside and substituted
WORKERS' COMPENSATION - application for review of decision affirming determination that Respondent not liable to compensate Applicant for permanent impairment and non-economic loss - whether impairment “permanent” - whether Applicant has undertaken all reasonable rehabilitative treatment - decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535
Comcare v Filla [2002] FCAFC 286; (2002) 115 FCR 163
Comcare v Martin [2016] HCA 43; (2016) 258 CLR 467
Filla v Comcare Australia [2001] FCA 964; (2001) 115 FCR 144
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
REASONS FOR DECISION
Deputy President J W Constance
27 September 2019
A: INTRODUCTION

Mr Briouzguine commenced employment with the Australian Protective Service in 2002. When this Service became part of the Australian Federal Police he was transferred to the latter organisation. He remained an employee of the Australian Federal Police until he was retired on medical grounds in 2017.
On 3 October 2014, Mr Briouzguine suffered an acute myocardial infarction. He was hospitalised until 7 October 2014. Apart from two days on restricted duties, he did not return to work after this event.
Mr Briouzguine made two claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) related to the infarction – one for compensation for…

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: [2019] AATA 4197
Decision Date: 27 September 2019

CaseChat Overview and Summary

This matter concerned an application for review of decisions made by Comcare concerning Mr Briouzguine's entitlement to compensation. The primary dispute revolved around whether Mr Briouzguine had suffered a "permanent impairment" as defined by section 24 of the relevant Act, and if so, the degree of that impairment and the compensation payable. The court was required to determine if Mr Briouzguine had suffered an injury, specifically a myocardial infarction, and whether this, or an aggravation of his chronic post-traumatic stress disorder and associated major depressive disorder, constituted an "ailment" or "aggravation of such an ailment" that arose out of, or in the course of, his employment and contributed to a significant degree. A secondary issue concerned whether any identified impairment was "permanent" and if Mr Briouzguine had undertaken all reasonable rehabilitative treatment.

The court's reasoning focused on the evidence presented by medical professionals regarding Mr Briouzguine's conditions. While accepting that Mr Briouzguine had suffered a myocardial infarction on 3 October 2014, and an aggravation of his post-traumatic stress disorder and major depressive disorder on 16 October 2014, the court was not satisfied that the impairment resulting from these conditions was "permanent" within the meaning of section 24 of the Act. Expert medical opinions varied, with some suggesting permanent incapacity while others indicated improvement and potential for future work, particularly in light of a new relationship and marriage. The court ultimately found that, at the time of the decision, the threshold for permanent impairment had not been met.

Consequently, the court set aside Comcare's decision of 11 September 2017 and substituted a decision that Comcare was liable to pay compensation in respect of the myocardial infarction and the aggravation of his psychiatric conditions. However, the court affirmed Comcare's decision of 15 August 2018, which had determined that Mr Briouzguine was not entitled to compensation for permanent impairment and non-economic loss. The parties were given 14 days to apply for directions regarding costs, failing which Comcare was ordered to pay Mr Briouzguine's costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The following issues arise:(a)Has Mr Briouzguine suffered an injury or injuries which have resulted in a “permanent impairment” within the meaning of section 24 of the Act?(b)If so, what is “the degree of permanent impairment” of Mr Briouzguine?(c)What, if any, compensation is payable to Mr Briouzguine in accordance with sections 24 and 27 of the Act?D: BACKGROUND Mr Briouzguine was born in Ukraine. He is 55 years old. In 1993, Mr Briouzguine and his family migrated to Australia. Prior to coming to Australia he served in the Soviet Air Force and the Ministry of Internal Affairs as a helicopter pilot. In 1998, Mr Briouzguine was severely injured when his helicopter was shot down during service in Afghanistan. He suffered psychological and physical injuries. During his employment by the Australian Protective Service and the Australian Federal Police, Mr Briouzguine was involved in a number of incidents referred to in the following four paragraphs. In 2002, Mr Briouzguine was involved in an incident with another police officer in a hotel. He was stood down from duty for several weeks for allegedly not disclosing the incident to his employer; it was later determined that he had reported the incident as required. Without further explanation he was then told to return to work. In 2004, Mr Briouzguine was charged with using offensive language and causing malicious damage arising from an incident when he was in the company of a friend. He was stood down from his employment for approximately nine months. The malicious damage charge was later dismissed in Court. He was reprimanded and returned to work on probation. This incident caused Mr Briouzguine considerable distress as he believed that his honesty and integrity had been questioned by his employer for a second time. In November 2006, Mr Briouzguine was told by his employer that he did not have the necessary security clearance despite having worked for his employer for more than four years. He was stood down and issued with a notice terminating his employment. He suffered a panic attack and sought medical assistance at his local hospital. His blood pressure was recorded as 210/110. He contacted the Police Association and was told to seek another job as he could not fight the security clearance issue. About two days later he was called into his station by his superior officer, issued with the necessary security clearance and told to return to work. He was posted to Nauru for three months where he performed his duties without incident. In July 2009, Mr Briouzguine met with his inspector. During the meeting, the inspector spoke to Mr Briouzguine in a manner which he found derogatory and humiliating. As a result he felt very distressed and required some days away from work on sick leave. On 24 November 2009,[11] Dr Rees, Consultant Psychiatrist, reported to the Australian Federal Police in respect of Mr Briouzguine:In my opinion Mr Briouzguine has suffered from a Major Depressive Episode with features of anxiety. There is no evidence of significant vulnerability to developing this type of disorder except that he a [sic] developed significant Anxiety Disorder in 2006 after concern that he may lose his job due to security clearance issues. Since this time he does appear to report higher levels of anxiety than previously and this may have predisposed him to being more vulnerable to developing his current problems with depression and anxiety. The trigger for his current depression and anxiety appears to be related to the meeting that he had with the inspector in the Aviation Intelligence Group and relates to him seeing this as a direct attack on his credibility and feeling very humiliated by this. Other issues include probable alcohol abuse which is in remission currently.[11] Exhibit R1 at 30.

Evidence

Evidence Before The Court

I accept Mr Briouzguine’s evidence.F. EVIDENCE OF MEDICAL PROFESSIONALS Associate Professor Yiannikas, Consultant Cardiologist Associate Professor Yiannikas examined Mr Briouzguine in March 2018 at the request of his solicitors. He provided a report dated 18 April 2018[20] and gave evidence at the hearing. [20] Exhibit A2. Associate Professor Yiannikas reported, in part:Mr Briouzguine on the day of his acute myocardial infarction was very distressed and no doubt angry about the implications of his involvement in the firearm theft. This is a likely factor in the pathophysiology of his acute coronary occlusion and myocardial infarction. I suspect that he had a coronary lesion prior to the day of his myocardial infarction but in the setting of his extreme stress and anger, that he probably had a plaque rupture that occluded his right coronary artery.…… Whilst of course these events occur in such patients without any emotional trigger, I think there is sufficient data in the literature to suggest that in all probability his anger and emotional distress on the day of his myocardial infarction was an important contributor to his plaque rupture.[21][21] Exhibit A2 at 3. When he gave evidence at the hearing, Associate Professor Yiannikas confirmed the opinions expressed in his report and that, in his opinion, on the balance of probabilities the myocardial infarction began while Mr Briouzguine was at work on 3 October 2014. He explained the process as follows:·the plaque in the lining of the heart ruptures;·the rupture creates an environment of physiological events which can lead to complete blocking;·the cells in the lining of the heart become more sticky and restrict the blood flow which causes the patient to feel unwell (this may involve spasm of the heart);·the process may continue gradually until a complete thrombosis forms which causes complete occlusion. In his opinion, the experience of anger has physiological consequences and stress is more likely than physical exertion to cause plaque ruptures. Plaque rupture is a feature of a significant proportion of the events which cause a myocardial infarction.Professor O’Rourke, Cardiologist Professor O’Rourke examined Mr Briouzguine in June 2018 at the request of the solicitors for Comcare. He provided reports dated 29 June 2018[22], 16 July 2018[23] and 11 February 2019[24] and gave evidence at the hearing.[22] Exhibit R4.[23] Exhibit R5.[24] Exhibit R6. Professor O’Rourke noted that an angiography undertaken on 3 October 2014 “showed a high-grade obstruction (80%) of the mid right coronary artery”.[25] The obstruction was extracted and identified as a thrombus. In his opinion, “Mr Briouzguine sustained coronary occlusion from coronary thrombosis with evolving myocardial infarction with symptom onset at 20.30 (8.30 pm). Myocardial infarction was aborted by rapid evaluation and angioplasty with clot extraction followed by dilation and stenting of the diseased artery”.[26][25] Exhibit R4 at 6.[26] Exhibit R4 at 8.

Decision

Reasons for decision

I am not satisfied that the impairment suffered by Mr Briouzguine is “permanent” within the meaning of section 24 of the Act. This means that, at this time, Mr Briouzguine is not entitled to compensation under sections 24 or 27 of the Act.H. CONCLUSIONApplication 2017/6572 The decision under review, being the decision made by Comcare on 11 September 2017, will be set aside. In substitution, it will be decided that Comcare is liable to pay compensation to Mr Briouzguine in accordance with these reasons in respect of injuries, being:(1)myocardial infarction which occurred on 3 October 2014;(2)aggravation of chronic post-traumatic stress disorder with associated major depressive disorder which occurred on 16 October 2014. Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, Comcare shall pay the costs incurred by Mr Briouzguine in these proceedings.Application 2018/4658 The decision under review, being the decision made by Comcare on 15 August 2018, will be affirmed.

Ratio Decidendi

Legal Principle Established

As set out in paragraph 57 of these reasons, Dr Dinnen is of the opinion that it is unlikely that there will be any improvement in Mr Briouzguine’s condition. In his report of 9 April 2018,[51] Dr Dinnen added:I also consider him to be permanently incapacitated for any form of employment, in agreement with the psychiatric panel decision noted above.I believe he has been unfit for any form of employment since the heart attack in 2014 which triggered off and exacerbated the underlying psychiatric problems.I do not believe he would be suitable for rehabilitation or retraining. I believe he continues to be a risk. Ongoing management should also include close monitoring of any recurrence or exacerbation of any substance abuse disorder.Panel Assessment for Commonwealth Superannuation Corporation[52][51] Exhibit A4 at 8.[52] Exhibit R1 at 99. The psychiatric panel decision referred to by Dr Dinnen was carried out by Drs Chambers and Hong, Consultant Psychiatrists, in early 2017 to determine Mr Briouzguine's capacity under the Public Sector Superannuation Scheme. On 20 March 2017, the Panel reported, in part:In view of the chronicity and severity of his posttraumatic stress disorder and associated anxiety and depressive symptoms it is our opinion that he will not be able to return to work in either his previous position or any other position in accordance with the requirements of total and permanent incapacity.With regard to the likely date of incapacity for any further work from a psychiatric perspective, it is likely that he has been incapacitated from the time of his myocardial infarction in early October 2014.…In the panel’s opinion Mr Briouzguine is unlikely to ever work again in a job for which he … is reasonably qualified by education, training or experience.[53]In the Public Sector Superannuation Scheme Trust Deed, “totally and permanently incapacitated” means that, “because of a physical or mental condition, the incapacitated person is unlikely ever to work again in a job for which he/she:ois reasonably qualified by education, training or experience; orocould be so qualified after retraining.”[54][53] Exhibit R1 at 103.[54] Exhibit R1 at 100.Dr Smith On 26 July 2018, Dr Smith noted that Mr Briouzguine had not received psychiatric treatment “of a sustained nature” since he suffered the myocardial infarction in 2014.[55] He had been taking antidepressant medication and had received psychological therapy. At the same time, Dr Smith reported that Mr Briouzguine had developed a new relationship in 2015 and married in 2016.[55] See paragraph 62 of these reasons. Under the heading Adaptation/Employability Dr Smith reported:Mr Briouzguine stated that he had not engaged in any study or voluntary work. He stated that he had started to think about the work he might be able to engage in. He stated that on Thursdays he is involved in book covering as community service for seven hours.…By his own account Mr Briouzguine‘s condition had improved to some degree treatment consistent with him developing a relationship and subsequently marrying in 2016. He reported positivity and hope for the future. He is able to travel independently (for example, to this assessment) and he described some social contact with other friends. For those reasons, in my opinion, Mr Briouzguine did not present as substantially impaired as reported by Dr Dinnen.[56][56] Exhibit R7 at 7, 20.Mr Briouzguine