Bromham and Comcare (Compensation)

Case [2016] AATA 484

Bromham and Comcare (Compensation) [2016] AATA 484 (8 July 2016)

Division

GENERAL DIVISION

File Number

2015/1233

Re

Marjut Bromham

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Senior Member W G Stefaniak AM, RFD
Date 8 July 2016
Place Sydney

1.       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.

2.       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 Act 1988 in accordance with these reasons for decision.

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

J W Constance
Deputy President

CATCHWORDS

WORKERS COMPENSATION - 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

REASONS FOR DECISION

Deputy President J W Constance
Senior Member W G Stefaniak AM, RFD

8 July 2016

INTRODUCTION

  1. 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.

  2. In March 2015 Comcare affirmed an earlier decision that on 9 December 2014 the injury had resolved and at that time no further compensation was payable.

  3. Ms Bromham has applied to the Tribunal to review this decision.  For the reasons which follow the reviewable decision will be set aside.  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

  4. 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.

  5. 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. The paragraphs have been taken from the Applicant’s Statement of Facts, Issues and Contentions unless otherwise stated. References to documents with the pre-fix “T” are references to documents in exhibit R1.

  6. On 8 November 2005 the Applicant submitted an accident/ incident report…

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Details
AGLC
Bromham and Comcare (Compensation) [2016] AATA 484
Case
[2016] AATA 484
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Bromham to the Administrative Appeals Tribunal for a review of a decision by Comcare. The dispute centred on Ms Bromham's entitlement to compensation for medical expenses and incapacity payments related to a psychological injury sustained in 2005. Comcare had determined that Ms Bromham was no longer entitled to such compensation from 9 December 2014 onwards, on the basis that her psychological condition had resolved.

The Tribunal was required to determine whether Ms Bromham continued to be entitled to compensation for medical expenses incurred and for periods of incapacity for work, on or since 9 December 2015, in relation to her compensable injury. The core legal issue was whether the effects of the compensable injury persisted to the extent that Ms Bromham required ongoing medical treatment and remained incapacitated for work.

The Tribunal found that Comcare had incorrectly placed the onus on Ms Bromham to re-establish her entitlement. Instead, the Tribunal held that an 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. The Tribunal considered conflicting medical evidence, including reports from Dr Vickery, who opined that Ms Bromham's psychological condition had resolved and was not related to her employment, and evidence from Ms Bromham herself detailing ongoing distress and an inability to cope. The Tribunal concluded that Comcare had not discharged its evidentiary burden.

The Tribunal set aside the reviewable decision and determined that compensation for medical expenses and incapacity payments has been payable to Ms Bromham continuously since 9 December 2014.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Ms Bromham has applied to the Tribunal to review this decision. For the reasons which follow the reviewable decision will be set aside. 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. 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. The paragraphs have been taken from the Applicant’s Statement of Facts, Issues and Contentions unless otherwise stated. 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”. Dr Phengsiaroun also reported that the Applicant had low back pain since 1991, exacerbated by a fall in 1999, which caused injury to breast implants, thoracic spine, shoulders and hands and chipped her tooth. He also noted a motor vehicle accident in 1999 that caused further injury to the Applicant’s back, an injury when the Applicant was ‘crushed in a filing compactus’ in 2000 and an injury in 2003 when a guillotine fell on the Applicant’s foot. Dr Phengsiaroun was also of the opinion that the Applicant’s ’anxiety/depressive disorder’ was not permanent and would improve.[1][1] Respondent’s Statement of Issues, Facts and Contentions para.3.4, Exhibit R1 p.113.

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 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 the 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 at least three 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 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. Her present general practitioner is Dr Kang. 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[6] Comcare affirmed its earlier determination[7] 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.[6] Exhibit R1 p.303.[7] Exhibit R1 9.295THE 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 14 or 16 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 2015, in relation to the compensable injury?(2)Has Ms Bromham any entitlement to incapacity payments at any time on or since 9 December 2015, in relation to the compensable injury?CONSIDERATION Comcare argues that on and since 9 December 2015 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. 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”.[8] 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 no longer suffers from the effects of the compensable injury such that she does not require medical treatment and that she is not incapacitated for work. If we cannot be so satisfied the reviewable decision must be set aside.The evidence in support of Comcare’s argument[8] Transcript 13 April 2016The evidence of Dr Vickery Psychiatrist and Pain Management Consultant

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 2015, in relation to the compensable injury?(2)Has Ms Bromham any entitlement to incapacity payments at any time on or since 9 December 2015, in relation to the compensable injury?CONSIDERATION Comcare argues that on and since 9 December 2015 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. 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”.[8] 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 no longer suffers from the effects of the compensable injury such that she does not require medical treatment and that she is not incapacitated for work. If we cannot be so satisfied the reviewable decision must be set aside.The evidence in support of Comcare’s argument[8] Transcript 13 April 2016The 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[9], 31 August 2015[10] and 29 February 2016[11] and gave evidence.[9] Exhibit R1 p.280.[10] Exhibit R2.[11] 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. When he gave evidence Dr Vickery agreed that Ms Bromham may be suffering a chronic illness dating back to 1990 but that such illness, if it exists, is not related to her employment by the Authority. In his view Ms Bromham has a vulnerability to develop major depression. However, her view that the incident at work in 2005 is a major factor in this vulnerability is a misattribution. Misattribution in these circumstances is not uncommon.The evidence of Mr O’Neill, Clinical Psychologist Mr O’Neill assessed Ms Bromham on 18 June 2015. He provided a report dated 19 June 2015[12] and gave evidence.[12] Exhibit R4