Bromham and Comcare (Compensation) - [2017] AATA 1515

Bromham and Comcare (Compensation) [2017] AATA 1515 (20 September 2017)
Division:GENERAL DIVISION
File Number(s): 2015/1233
Re:Marjut Bromham
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Bill Stefaniak AM RFD, Senior Member
Date:20 September 2017
Place:Sydney

The reviewable decision made 3 March 2015, being the decision of Comcare that on 9 December 2014 Ms Bromham had no entitlement to compensation in respect of medical expenses or to incapacity payments in respect of an injury which occurred on 19 September 2005, is set aside.
The matter is remitted to Comcare for reconsideration of Ms Bromham’s entitlement to compensation under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act1988 (Cth) in accordance with these reasons for decision.
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 of the proceedings incurred by the Applicant.
......................................[sgd]..................................
J W Constance
Deputy President
CATCHWORDS
WORKERS COMPENSATION – hearing on remittal – entitlement to compensation for medical expenses – entitlement to incapacity payments – psychological injury – adjustment disorder with depressed mood – where there is a compensable injury – whether Applicant continued to be entitled to compensation for the cost of medical treatment obtained in relation to compensable injury – whether Applicant continued to be incapacitated from work as a result of the compensable injury – whether psychological condition had resolved – where conflicting medical evidence – decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
REASONS FOR DECISION
Deputy President J W Constance
Bill Stefaniak AM RFD, Senior Member
20 September 2017
INTRODUCTION

This matter was heard by us in April 2016. Following an appeal to the Federal Court it was remitted to the Tribunal for further hearing in accordance with the Court’s Reasons for Judgment published on 1 March 2017.
When the matter came on for further hearing we heard additional submissions by the parties. Neither party called additional evidence. As a result parts of these reasons are the same as those previously published by us.
In June 2006 Comcare accepted liability to compensate Ms Bromham under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of a psychological injury she suffered in September 2005. From then until 9 December 2014 Comcare paid compensation for medical treatment obtained in relation to the injury and for incapacity suffered as a result of the injury.
In these reasons we refer to “the compensable injury”. So that there can be no confusion, we are referring to the injury suffered by Ms Bromham in September 2005 “as a result of being moved from one workplace to another and feeling that her new role was not commensurate with her former experience and training.”[1] The move took place in…

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 Bromham and Comcare (Compensation)

Details

AGLC: Bromham and Comcare (Compensation) [2017] AATA 1515
Case: [2017] AATA 1515
Decision Date: 20 September 2017

CaseChat Overview and Summary

This matter concerned an appeal by Ms Bromham against a decision by Comcare to affirm its earlier determination that she was not entitled to compensation for medical expenses or incapacity payments from 9 December 2014 onwards. The original injury, a psychological condition described as adjustment disorder with depressed mood, arose from workplace events in August 2005. The core dispute revolved around whether Ms Bromham continued to suffer the effects of this compensable injury after the specified date, thereby entitling her to ongoing medical treatment costs and income support.

The court was required to determine two primary legal issues: firstly, whether Ms Bromham retained any entitlement to compensation for medical expenses incurred on or after 9 December 2014 in relation to her compensable injury; and secondly, whether she was entitled to incapacity payments during the same period as a result of that injury. These questions necessitated an examination of the evidence to ascertain if the psychological condition, which had been accepted as compensable, continued to manifest and impact her capacity for work and need for treatment.

The court reasoned that the Tribunal, standing in the shoes of the original decision-maker, must consider all available evidence. Crucially, the evidentiary burden rested on Comcare to demonstrate, on the balance of probabilities, that Ms Bromham no longer suffered from the effects of the compensable injury since 9 December 2014. Comcare's argument that Ms Bromham's condition had resolved or was no longer materially contributed to by the compensable injury was contested. The court found that Ms Bromham did not need to re-establish Comcare's liability for the original injury, but rather Comcare had to prove the cessation of its effects. The reviewable decision was set aside, and it was determined that compensation for medical expenses and incapacity had been payable continuously since 9 December 2014.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow the reviewable decision will be set aside. In substitution it will be decided that continuously since 9 December 2014 and at the time of this decision, compensation has been payable in respect of medical expenses and incapacity in accordance with the Act.BACKGROUND Ms Bromham was born in 1956. She commenced employment with the ACT Emergency Services Authority in 1993 as a finance and debtors officer. She was later promoted to the position of procurement officer in the Stores Department. On 10 August 2005 Ms Bromham was informed by her supervisor that management had decided that she would be moving from Stores Department to the Finance Department in another suburb of Canberra. She had not been previously advised of the impending move.[3][3] Exhibit R1 p.7. Ms Bromham started work in the Finance Department on 24 August 2005.[4][4] Exhibit R1 p.9. The facts set out in the following 23 paragraphs are agreed by the parties. We are satisfied that the matters agreed accurately reflect the evidence before us. Unless otherwise stated the paragraphs have been taken from the Applicant’s Statement of Facts, Issues and Contentions. References to documents with the pre-fix “T” are references to documents in exhibit R1. On 8 November 2005 the Applicant submitted an accident/ incident report (T7) to the ACT Emergency Services Authority. The particulars of the “incident” provided by the Applicant were “Management informed me that my position was being relocated to Curtin (Finance) after eight years. No consultation.” Particulars of “injury or disease” provided by the applicant included “Stress, depression, high blood pressure and blood sugar level.” On 6 December 2005 the Applicant submitted a workers compensation claim form (T8) to the Authority. On the form the applicant particularised her “diagnosed condition” as “Stress, blood pressure and blood sugar level”. In answering the question of part(s) of body injured the Applicant particularised “psychological system”. On or around 14 November 2005 the Authority referred the Applicant to Lisa Castles & Associates Rehabilitation and Occupational Health Consultants to enable the provision of an Initial Needs Assessment Report. In a report dated 31 January 2006 (T9) Jill Shanahan Occupational Therapist/ Rehabilitation Consultant provided a recommendation for a Return to Work Plan to be opened for the Applicant for three months. On 1 February 2006 Respondent requested provision of a report from the Applicant’s treating general practitioner Dr T. Phengsiaroun (T10). On 3 March 2006 Jill Shanahan Occupational Therapist referred the Applicant to the Calvary Private Hospital for psychological treatment (T16). In a report to the Respondent dated 10 March 2006 (T17) Dr Phengsiaroun opined that “In my opinion, there is a strong relationship between Ms Bromham’s current symptoms of anxiety/ depressive disorder and her employment as described above and is not due to pre-existing condition”.

Evidence

Evidence Before The Court

Further, Mr O’Neill agreed that crying can be a symptom of depression, although not necessarily so. He agreed that it is possible that Ms Bromham has suffered a relapse of depression, as there is “a lifetime of vulnerability”. The evidence on behalf of Ms BromhamMs Bromham’s evidence When asked as to her various medical conditions, Ms Bromham said that her right knee is “very good” but that her left knee continues to be very painful. She no longer suffers pain following an operation on her thumbs and she described the condition of her neck and spine as “good”. These conditions would not prevent her returning to her previous employment. Prior to the incident in August 2005 which caused Ms Bromham’s compensable injury there were a number of incidents in her workplace which caused her distress. The first of these incidents occurred in about 1996. However Ms Bromham continued to attend work until the incident in August 2005, which she described as “the breaking stone”. She attempted suicide in 2005 on two occasions. At the time her physical difficulties caused her some stress but were not so severe as to prevent her attending work. Ms Bromham left her home in Canberra in 2006. She referred to this decision as “running away” as she no longer felt safe. She felt “useless and could not cope anymore”. She then travelled alone in her campervan until August 2008 at which time she arrived at her son’s home in Gladstone, Queensland. During her travels she continued to take anti-depressant medication, obtaining prescriptions from various general practitioners along the way. Whilst Ms Bromham was staying with her son she helped him renovate his home. She did tiling and painting work for approximately seven hours per day for three months. Ms Bromham met Mr Newitt whilst staying in Gladstone. In December 2008 she left Gladstone accompanied by Mr Newitt, who travelled in a separate motor home. Since that time Mr Newitt has acted as Ms Bromham’s carer. At some time thereafter he was granted a carer’s pension in relation to Ms Bromham. He continues to be her carer. Having left Gladstone Ms Bromham and Mr Newitt travelled through Queensland, New South Wales, Victoria and South Australia before returning to the Australian Capital Territory. In Victoria she stayed at a friend’s home and cared for her friend’s dogs. She also visited her brother. On returning to Canberra she sold her home. She says at that time her mental condition was not improving. She continued to take Effexor, which had been prescribed to treat her depression. After selling her home Ms Bromham and Mr Newitt travelled to Taree on the north coast of New South Wales where Ms Bromham purchased the home in which they now live. Since the injury Ms Bromham has continued to consult general practitioners who have continued to prescribe Effexor. In April 2016 her general practitioner was Dr Kang. There is no evidence to suggest that this has changed. At her home in Taree, which is situated on a battle-axe block, Ms Bromham has had a high boundary fence constructed and keeps the windows locked. She does not like leaving home and spends considerable time sleeping. She is concerned that “people will judge me.” She attributes this to being humiliated by her male work-colleagues when she was employed by the Authority.

Decision

Reasons for decision

Subsection 19(2) provides in part:(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula [set out]:THE REVIEWABLE DECISION By the reviewable decision made 3 March 2015[10] Comcare affirmed its earlier determination[11] that on 9 December 2014 Ms Bromham had no entitlement to compensation in respect of medical expenses or to incapacity payments in respect of her injury. The determination was made on the basis that at that time Ms Bromham’s psychological condition had resolved.[10] Exhibit R1 p.303.[11] Exhibit R1 p.295THE ISSUES Section 14 of the Act provides for a determination as to whether Comcare is liable to pay compensation for a claimed injury. Section 16 sets out the circumstances in which compensation is payable for medical expenses obtained in relation to an accepted injury. This section requires Comcare to consider each expense claimed and to make a decision whether or not compensation is in fact payable. Similarly section 19 requires Comcare to decide upon the compensation payable for each claimed period of incapacity. Neither section 16 nor 19 require Comcare to revisit the original decision made under section 14 that compensation is payable in respect of the injury. The Tribunal stands in the shoes of the original decision-maker and it must take into account all of the evidence before it. The issues we must decide follow.(1) Has Ms Bromham any entitlement to compensation for medical expenses incurred at any time on or since 9 December 2014, in relation to the compensable injury?(2)Has Ms Bromham any entitlement to incapacity payments at any time on or since 9 December 2014, in relation to the compensable injury?CONSIDERATIONComcare’s argument Comcare argues that on and since 9 December 2014 Ms Bromham is not entitled to compensation for medical expenses or incapacity payments as during the whole of that time she has not suffered any effect of the compensable injury. When the matter was first argued before us it was put on behalf of Comcare that “there is insufficient evidence to establish that the compensable condition continues to contribute to Ms Bromham’s psychological condition, if she suffers from one”.[12] We do not agree that this is the correct approach to the task before us. Ms Bromham does not have to again show that Comcare is liable to compensate her in respect of the injury she suffered in 2005. Whilst neither party bears an onus of proof, there is an evidentiary burden on Comcare which must be discharged if the decision under review is to be affirmed. For this to occur we have to be satisfied on the evidence before us that, on the balance of probabilities, Ms Bromham does not suffer at present from the effects of the compensable injury and has not done so since 9 December 2014. If we cannot be so satisfied the reviewable decision must be set aside.[12] Transcript 13/04/16 p-305.

Ratio Decidendi

Legal Principle Established

The Tribunal stands in the shoes of the original decision-maker and it must take into account all of the evidence before it. The issues we must decide follow.(1) Has Ms Bromham any entitlement to compensation for medical expenses incurred at any time on or since 9 December 2014, in relation to the compensable injury?(2)Has Ms Bromham any entitlement to incapacity payments at any time on or since 9 December 2014, in relation to the compensable injury?CONSIDERATIONComcare’s argument Comcare argues that on and since 9 December 2014 Ms Bromham is not entitled to compensation for medical expenses or incapacity payments as during the whole of that time she has not suffered any effect of the compensable injury. When the matter was first argued before us it was put on behalf of Comcare that “there is insufficient evidence to establish that the compensable condition continues to contribute to Ms Bromham’s psychological condition, if she suffers from one”.[12] We do not agree that this is the correct approach to the task before us. Ms Bromham does not have to again show that Comcare is liable to compensate her in respect of the injury she suffered in 2005. Whilst neither party bears an onus of proof, there is an evidentiary burden on Comcare which must be discharged if the decision under review is to be affirmed. For this to occur we have to be satisfied on the evidence before us that, on the balance of probabilities, Ms Bromham does not suffer at present from the effects of the compensable injury and has not done so since 9 December 2014. If we cannot be so satisfied the reviewable decision must be set aside.[12] Transcript 13/04/16 p-305. The argument put on behalf of Comcare at the hearing on remittal was as follows:(a)the correct diagnosis of Ms Bromham’s condition is a “relapsing remitting major depressive condition, disorder”;[13] (b)she has been in a period of remission since 9 December 2014 and in that period has not suffered a condition outside the boundaries of normal mental functioning;[14](c)alternatively, “if she does suffer from a condition outside the boundaries of normal mental functioning behaviour, then it is no longer contributed to, to the requisite degree, that being a material contribution”.[15]The evidence in support of Comcare’s argument[13] Transcript 30/06/17 p-322.[14] Transcript 30/06/17 p-322.[15] Transcript 30/06/17 p-322.The evidence of Dr Vickery Psychiatrist and Pain Management Consultant Dr Vickery assessed Ms Bromham on 20 October 2014 at the request of Comcare. He provided reports dated 20 October 2014,[16] 31 August 2015[17] and 29 February 2016[18] and gave evidence.[16] Exhibit R1 p.280.[17] Exhibit R2.[18] Exhibit R3. In the opinion of Dr Vickery, when he assessed Ms Bromham on 29 October 2014 her psychological condition had resolved and there was no objective clinical evidence of a diagnosable DSM-IV-TR psychiatric disorder or injury. Further, Ms Bromham was not suffering from a condition outside the boundaries of normal mental functioning and behaviour and did not require psychological treatment.