CCTS and Comcare (Compensation) [2023] AATA 60 (24 January 2023)
Division:GENERAL DIVISION
File Number(s): 2021/7190
Re:CCTS
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:Senior Member Dr Linda Kirk
Date:24 January 2023
Place:Sydney
The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.................................[SGD].......................................
Senior Member Dr Linda Kirk
Catchwords
WORKERS’ COMPENSATION – whether the Applicant suffered an ailment or an aggravation of an injury for the purposes of section 5A(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 resulting in disease as defined by section 5B(1)(b) of the Act – whether the Applicant’s employment contributed, to a significant degree, the aggravation of the ailment such that she has a ‘disease’ under section 5B(1) of the Safety, Rehabilitation and Compensation Act 1988 – whether employer’s conduct amounted to reasonable administrative action – whether any reasonable administrative action was taken in a reasonable manner – whether any injury is excluded for being a result of reasonable administrative action - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth)Cases
Comcare v Martin [2016] HCA 43; 339 ALR 1; 91 ALJR 29
Comcare v Martinez (No 2) [2013] FCA 439
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Kahn (2007) 156 FCR 536
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
Drenth v Comcare [2011] AATA 582
Hollis v Comcare [2017] FCA 558
Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42
Vo v Comcare [2005] AATA 773
Von Stieglitz v Comcare [2010] AATA 263REASONS FOR DECISION
Senior Member Dr Linda Kirk
24 January 2023
INTRODUCTION
CCTS (‘the Applicant’) was born in 1996.[1] She commenced employment with the Australian Border Force (‘the ABF’) in the Department of Home Affairs in October 2018.[2] From October 2019, she was employed as an APS3 Officer in Aviation Traveller, New South Wales working in airport operations at the Sydney International Terminal.[3]
[1] Exhibit R1, T25, 180.
[2] Transcript of proceedings, 9 August 2022, 5.
[3] Ibid at 45.
On 3 June 2021, the Applicant lodged a claim for workers’ compensation in respect of ‘major depression and anxiety’ which she claimed to have sustained as a result of a series of workplace incidents on 5 and 25 December 2020 and 9 January 2021.[4] The Applicant reported that she first noticed her symptoms on 5 December 2020, and first sought medical treatment on 11 January 2021.[5]
[4] Exhibit R1, T25, 7-18.
[5] Ibid at 14.
By determination dated 23 August 2021, Comcare (‘the Respondent’) denied liability under section 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (‘the SRC Act’) in respect of ‘
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- CCTS and Comcare (Compensation) [2023] AATA 60
- Case
- [2023] AATA 60
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine several key legal issues. These included establishing the diagnosis and date of onset of the applicant's condition, whether this condition constituted an "ailment" or an "aggravation" of an ailment, and if it was a "disease" under section 5B(1) of the SRC Act due to significant contribution from her employment. Crucially, the Tribunal also had to consider whether the applicant's condition, if it met the definition of "injury," was excluded by section 5A(2) of the Act because it arose from reasonable administrative action taken reasonably by the ABF.
In its reasoning, the Tribunal considered conflicting medical opinions regarding the applicant's diagnosis and the onset of her condition. While Associate Professor Damodaran diagnosed an adjustment disorder with mixed anxiety and depressed mood, with symptoms becoming clinically identifiable by January 2021, Dr. Cocks opined that the applicant suffered from Major Depressive Disorder, with symptoms indicating a pre-existing condition that was exacerbated by workplace incidents. The Tribunal gave greater weight to Dr. Cocks' opinion, noting he had considered all relevant material. However, the medical evidence remained inconclusive on the precise date of onset. The Tribunal also considered the applicant's emotional responses during meetings with her employer, finding that discussions about her mental health were not unreasonable given the nature of her work.
Ultimately, the Tribunal was not satisfied that the applicant had suffered an "injury" for the purposes of section 5A of the SRC Act for which Comcare was liable to pay compensation under section 14. Consequently, the Reviewable Decision was affirmed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The evidence is that the Applicant was upset both at the start of the meeting and during the meeting. There is evidence that the Applicant regularly became upset and teary during meetings to discuss her welfare. The point had been reached where it was necessary to have a discussion with the Applicant about the concern for her mental health. This was not unreasonable in light of the important work that takes place at the airport.[193]CONSIDERATION AND REASONS[193] Ibid, 152. What is the diagnosis and date of onset of the Applicant’s condition? Based on the evidence before it, and for the following reasons, the Tribunal finds that the Applicant suffers from Major Depressive Disorder with an unspecified date of onset. Associate Professor Damodaran diagnosed the Applicant with ‘adjustment disorder with mixed anxiety and depressed mood.’[194] He considered that the symptoms from this condition became clinically identifiable by 9 January 2021 but noted that the Applicant had ‘some emotional distress and emotional symptoms’ before this date. He reported that there was no pre-existing psychiatric condition, although the Applicant was ‘psychologically vulnerable given the understandable grief and bereavement she was going through during 2020.’ In his opinion, the Applicant’s condition ‘is not an aggravation, acceleration, or recurrence of any pre-existing condition.’ [194] Exhibit R2, R10, 288. Dr Cocks’ opinion is that the Applicant suffers from Major Depressive Disorder as her symptoms meet the DSM-5 criteria for this condition. Specifically, the Applicant ‘presents with biological and psychological symptoms characteristic of a depressive illness.’ In his view, the Applicant’s condition does not meet criteria C for Adjustment Disorder, as the criteria for another condition, Major Depressive Disorder, are met. Dr Cocks’ evidence is that the Applicant’s symptoms are not consistent with bereavement or grief which tends to be fluctuating and does not influence biological parameters such as a pervasive sleep disturbance. He found that as the symptoms the Applicant displayed are biological changes, this indicates she suffers from a depressive illness not the effects of bereavement. In reaching a finding as to the ailment which the Applicant suffers, the Tribunal has given greater weight to the opinion of Dr Cocks for reason that, unlike Associate Professor Damodaran, he received and considered all the relevant material including the summons documents. The evidence that the Applicant’s condition has persisted beyond six months is a further indication that the criteria for Adjustment Disorder are not met as criteria E provides ‘Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.’ In relation to the date of onset of the Applicant’s depressive illness, Associate Professor Damodaran’s opinion is that this condition became clinically identifiable by 9 January 2021. Whereas she had ‘some emotional distress and emotional symptoms’ before this date, she did not have a pre-existing psychiatric condition. Accordingly, the Applicant’s depressive illness ‘is not an aggravation, acceleration, or recurrence of any pre-existing condition.’ Dr Cocks’ view is that the Applicant’s condition is pre-existing as evidenced by the fact that she had a pre-existing vulnerability to the development of depression, and the evidence in the notes of the clinical psychologist (Ms Bridgford) that the Applicant noticed a general deterioration in her mental health towards the middle of 2020. In Dr Cocks’ opinion, the workplace incidents ‘contributed an exacerbation’ of the Applicant’s condition. The medical evidence is therefore inconclusive as to the date of onset of the Applicant’s condition.