Chadha and Comcare
[2007] AATA 2018
•6 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2018
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2006/662
GENERAL ADMINISTRATIVE DIVISION ) Re KULJEET CHADHA Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member
Dr Saw-Hooi Toh, MemberDate6 December 2007
PlaceSydney
Decision 1. The reviewable decision of Comcare dated 29 May 2006, affirming a determination that the Applicant is not entitled to compensation under section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”), is set aside.
2. In substitution for the decision set aside it is decided that from 15 July 2005 Mr Chadha suffered an injury, being a disease that was contributed to in a material degree by his employment, which resulted in incapacity for work. The injury was “adjustment disorder with mixed anxiety and depression coupled with evidence of generalised anxiety disorder”. Mr Chadha is entitled to compensation pursuant to s 14 of the Act.
3. We indicate that on the material available to us, it is our opinion that the appropriate order would be that the Respondent, Comcare, pay Mr Chadha's costs pursuant to s 67(8) of the Act. The parties have seven days from the date of this decision to advise the Tribunal if they wish to argue the question. If they do not, we will make the foreshadowed order.
.......................[sgd].......................
Mrs Josephine Kelly
Presiding MemberCATCHWORDS
COMPENSATION – injury – diagnosed psychiatric condition – applicant employed by ATO – experienced panic attacks at work – claimed compensation - whether injury caused by employment –– applicant suffered from an injury - adjustment disorder, anxiety and depression – injury caused by employment with ATO – applicant entitled to compensation -decision under review set aside – costs order foreshadowed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19 and 67
Administrative Appeals Tribunal Act 1975 s 43
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Comcare v Mooi (1996) 42 ALD 495
Comcare v Sahu-Khan (2007) 156 FCR 536
Wiegand v Comcare Australia (2002) 72 ALD 795
Australian Postal Corporation v Barry [2006] FCA 1751
REASONS FOR DECISION
6 December 2007 Senior Member, Mrs Josephine Kelly
Member, Dr Saw Hooi Toh1. On 23 August 2005 Mr Kuljeet Chadha filled out a Claim for Workers' Compensation for “work-related stress – anxiety / panic attacks / depression. Psychological injury because of lack of coaching”. Mr Chadha asserts that his injury was caused by “work-pressure – due to lack of proper coaching & to do all the work on you own without any guidance or assistance from day one”. He described the action/event causing the injury as “verbal abuse, not fair go, no proper coaching for 4 months. This is my new job & coaching is part of on the job training. Overload of work because of lack of coach and coaching”. Mr Chadha’s employer is, relevantly, the Australian Taxation Office (ATO).
THE REVIEWABLE DECISION
2. Mr Chadha seeks review of the decision made by a Comcare officer on 29 May 2006 affirming the determination of 1 December 2005 that he was not entitled to compensation under section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) in respect of ‘acute reactions to stress’.
THE ISSUES
3. The issues are:
a) Whether Mr Chadha suffered an “injury” as defined in s 4(1) of the Act. The injury was put on two bases: that he suffered a diagnosed psychiatric condition, or in the alternative, that having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour: Comcare v Mooi (1996) 42 ALD 495; and
b) If Mr Chadha has suffered an injury, was the injury relevantly caused by his employment and is he is entitled to compensation pursuant to s 14 of the Act? and
c) If the answer to (b) is yes, do we have jurisdiction to make a finding that he is entitled to compensation pursuant to s 16 (medical expenses) and s 19 (for incapacity), and if so, are we in a position to do so?
4. For the reasons that follow we find that Mr Chadha suffered an injury, being a disease that was contributed to in a material degree by his employment which resulted in incapacity for work. The injury was “adjustment disorder with mixed anxiety and depression coupled with evidence of generalised anxiety disorder” as diagnosed by Dr Canaris, consultant psychiatrist. He is entitled to compensation pursuant to s 14 of the Act. We do not deal with compensation entitlements pursuant to s 16 and s 19 of the Act for the reasons given later in this decision.
LAW
5. Section 14 (1) of the Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
6. The relevant definitions of disease and injury are those in s 4(1) of the Act, that is before the amendments made by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No. 54, 2007). Section 4(1) provided:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
injury means:
(a)a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
BACKGROUND
7. Mr Chadha migrated to Australia from India in 1992. Before leaving India he had obtained a Bachelor of Commerce and a Master of Commerce degree. He specialised in tax accounting in his Master’s degree. He had worked as an accountant and an auditor.
8. The job market in Australia was difficult when he arrived. He undertook a six week bridging course at TAFE. He worked as an accounts clerk for one year and then got a job as a tax consultant, which he left in 1997 when he returned to India for family reasons. His father died in 2002. While in India he worked as an accounts manager and a school bursar. He returned to Australia in 2004 and resumed a position with the same company for which he had worked previously.
9. His mother came to Australia in January 2005. He commenced work with the ATO at Parramatta as a client manager on 30 January 2005. About seven months later,, he claimed workers’ compensation for “work related stress – anxiety/panic attacks/depression”
MR CHADHA’S EVIDENCE
10. Following is a summary of Mr Chadha’s evidence which comes from various documents and his oral evidence at the hearing. His job at the ATO was debt collection. He experienced difficulties at work from April 2005. He was not comfortable with his coach, Ms Samson, whom he described as having “poor eye contact, rude and was not helpful in assisting” Mr Chadha learn “the new routines or to deal with the cases”. He said that when he tried to approach her for assistance, she would say ‘“I am busy or I don’t have time”’. He described how she spoke to him over earphones while he was speaking to real clients, which he found very embarrassing. When he asked her to stop interrupting him, she became cranky and was nasty.
11. Mr Chadha alleged that at a meeting on 14 April 2005 where he, Ms Samson, and his supervisor, Ms Nicolson, were present, Ms Samson accused him of being jealous of her because she was a woman, and of hating her. Mr Chadha’s evidence was, and various medical reports state, that he was very affected by this “verbal abuse,” as he described it. He also said that Ms Nicolson had laughed during this conversation, which he could not understand and found embarrassing. Following this meeting, Ms Samson stopped talking to him and refused to reply to his emails.
12. Mr Chadha requested that his supervisor oversee his training. However, his evidence was that, although that was agreed to, it did not occur in practice. He said that he was doing everything on his own without assistance. He was under a lot of pressure and started having panic attacks which, from his evidence, we understand involved his suffering cold sweats, shivering and tremors, feeling his heart sinking and racing, and his mind going blank.
13. He agreed that he consulted another officer on a daily basis for periods of a few minutes up to an hour. This officer was very helpful, however, he was told by that officer and his supervisor that he was to go to a coach in relation to procedures. The other officer could deal with technical questions.
14. He also conceded during cross-examination that, on 5 May 2005, he requested that he stay with the first coach, Ms Samson, and said the reason was that she had more knowledge than the second coach, Ms Corbett, who was still learning.
15. He agreed that Ms Corbett had been appointed in June 2005, and that he had no time off for depression. However, he said that he used to see Dr Mahajan about his shoulder injury which he had suffered in March, and would discuss his depression with her at the same time.
16. There were two incidents involving his second coach, Ms Corbett, which Mr Chadha asserted contributed to his psychiatric condition. The first, as best we understand it, was that he put his name on a board two days in a row seeking assistance and then it was removed without Ms Corbett coming to assist him. He apparently believed Ms Corbett had removed his name. The second was about a case he had done which he understood Ms Corbett had found was satisfactory and could be put on the computer system. When he returned to work after a day off, he found it had been rejected. He also said that she was rude and undermined him after she became his coach.
17. He said that he cried at home quite frequently before August 2005, especially on Sunday nights because he had to go to the ATO on Monday morning. He suffered cold sweating and fear of seeing his coach.
18. Mr Chadha described two “high level” panic attacks which involved him crying uncontrollably and made him want to leave the office. The first panic attack occurred “in the beginning”, and the second one in August 2005. Both occurred when he was at his work station. Both caused him to lose confidence. He was permitted to work for a maximum of 10 hours and had to do so because of the lack of assistance he received.
19. The second of the two “high level” panic attacks occurred while he was working reduced hours, four hours a day four days a week, because of his shoulder injury. Mr Chadha said that this occurred in front of his team supervisor, Ms Nicolson.
20. Mr Chadha resigned because, in his words: “you people are giving me so much pressure”. He said that he rang his wife and cried for 20 minutes. He telephoned the person who was helping him with rehabilitation for his shoulder injury who advised him not to resign. He took back his resignation and went home where he stayed for two months.
21. The first month at home was very bad. He was not able to sleep, or talk to his family, or eat anything. After a month his condition had improved. He had been told by his case manager that his supervisor would call and do something to change the team. She never called back. He sent an email to her but received no reply.
22. In August 2005 a meeting was held with his general practitioner, Dr Mahajan, his supervisor, the officer overseeing his rehabilitation, and an officer from the Hurstville Branch of the ATO. It was decided that the supervisor would change his coach and provide the training he had missed while he had been away.
23. Mr Chadha returned to work on 10 October 2005.
24. He said that everything went well until May 2006 when he was transferred to another team where Ms Corbett worked. Within two days he had panic attacks again and was home for a month from 6 May to 6 June 2006. He was worried his coach might do the same things she had done before. He went to India for about a month and when he returned to work he was transferred to another team and has been fine since then.
25. Mr Chadha said that he had a very supportive family, although he did not tell his children the problem he had. He cried in front of children and the younger two asked why. During 2005 all his recreational activities stopped. He was going to and from his home and the office. He did not want to go out anywhere. He felt totally hopeless.
26. Over the last two years he has gained 20 kilograms. He is on hypertension tablets and has seen a heart specialist.
27. Before commencing at the ATO he had not cried as he did when he was there. He had been a very successful person. At the hearing he said that he was much better, although he had cried while in an interview room when remembering the incidents he had recounted. He was still on anti-depressant tablets.
28. He had been referred to a psychologist by Dr Mahajan. He said that he attended on six occasions, but when his claim was rejected he was unable to pay for the treatment. Dr Mahajan has helped him. When he was at home he saw her up to twice a week but at present he is not seeing her at all.
29. Mr Chadha said that he has taken a couple of different medications. He has been on Aropax, beginning with half a tablet and increasing his dosage until he was taking two tablets a day. He is currently taking one tablet a day. He said that he had never taken any anti-depressants before working at the ATO. However, he accepted during cross-examination that if a doctor’s notes recorded his being prescribed Zoloft in May 2004, that might be correct.
30. He also conceded during cross-examination that in 2004 he had neck and shoulder problems at work. He had successfully claimed worker’s compensation for physiotherapy from his then employer.
CONSIDERATION
31. A number of statements were before us from ATO employees who worked with Mr Chadha, including from Ms Nicolson, his supervisor, and Ms Samson and Ms Corbett, his coaches. We accept the evidence of Ms Nicolson about the training Mr Chadha received, his workload, and how he dealt with it.
32. We make the following findings on the evidence before us.
33. Mr Chadha commenced employment with 10 other new staff and all the new staff received the same training and support. After his training Mr Chadha expressed concern that he would be unable to learn to do the work required and was concerned about the availability of support. He continually expressed dissatisfaction with the help he received. He had one of the lowest work loads because of the concerns he expressed.
34. Mr Chadha lodged an incident report on 17 March 2005 relating to a neck and shoulder injury. A work station assessment was carried out.
35. Mr Chadha's difficulties with his first coach, Ms Samson, arose shortly after they began working together at the beginning of April 2005. He required a considerable amount of assistance. We accept Ms Samson's evidence that she had been surprised when she found out at the meeting on 14 April 2005 that Mr Chadha felt he could not approach her. The evidence shows that he did not seek any medical assistance following that meeting.
36. The result of the work station assessment was a recommendation for a new chair and telephone headset and the purchase of a telephone headset. The assessment was emailed to Mr Chadha on 27 April 2005. The next day Mr Chadha sent an email to Ms Nicolson stating:
I would like to resign from my position because I am not feeling comfortable. When I was told about this job after induction day, I thought I would see how I go? But now I realise this job is not for me.
37. On 29 April 2005 Mr Chadha sent another email to Ms Nicolson which was headed “THANKS TO EVRYBODY” [sic]. It expressed his thanks to her “and to all the people who were concerned about me and my family” and said that he was going to hospital with his wife on Monday morning and would be in the office between 10:30 am and 11:00 am.
38. There was no evidence that going to the hospital related to an injury or illness suffered by Mr Chadha. We infer that there had been some illness or other problem concerning another member of his family in respect of which his fellow employees had expressed concern.
39. On 26 May 2007, his supervisor advised him that he had been made permanent and praised some aspects of his performance, but said:
“However I think you need some time, patience and persistence to work things out for yourself. At times the coaches and I have been concerned about your need about the level of support you have needed in your case work and we have spoken about that and are working it out”.
40. On 27 May 2005 Mr Chadha responded to his supervisor’s advice that he had been made permanent by thanking her:
“for all the support, you gave it to me at a very crucial time of my life. You were/are my manager and as well as Coach for last two months. I don’t know how should I say thank you to you? You gave moral support when I was very upset because of my coaching and when I was in need of it. You are my manager as well as a good friend.”
41. On 1 June 2005 Mr Chadha lodged a workers compensation claim for his shoulder and neck.
42. When it was suggested to him during cross-examination that, if he had suffered a psychiatric condition at the time, he would have claimed for that also, he said he did not know why he did not. He also agreed that, up until then, he had had interpersonal issues at work but had largely been able to work them out.
43. His evidence about his relationship with his second coach, Ms Corbett, is inconsistent with her account. Her evidence was that they chatted and got on well, and that his emotional state was fine. She was unaware of the incident where his name was taken off the board. She recalled an incident where she removed a case from the system but she was not aware that he was upset by it.
44. Mr Chadha continued to work in her area and she thought that they had a normal relationship until he went off work in August 2005.
45. As far as Ms Corbett was concerned when they were working together in May 2006 they “got on fine”.
46. She was aware that he had had difficulties with his first coach but she described how he had laughed and joked with his supervisor and the officer who answered technical questions. She said that although Mr Chadha told her that he could not approach his first coach, she saw him sitting with and asking questions of her.
47. Ms Nicolson said that Mr Chadha did not complain specifically about Ms Corbett.
48. Both Ms Samson and Ms Corbett were on leave in June and early July 2005. The evidence of other ATO officers who assisted Mr Chadha is consistent with his needing a lot of assistance and that he found the work difficult in the period from March to August 2005.
49. The first contemporaneous documentary evidence showing that Mr Chadha was complaining of stress at work are notes on a form headed "IPS", dated 4 July 2005 which record that Mr Chadha was reporting stress associated with workplace issues. We infer that IPS was the rehabilitation provider contracted by the ATO which was also helping Mr Chadha with his shoulder and neck injury.
50. Ms Nicolson was alerted to the anxiety and depression issue on 29 July 2005 by a human resources officer, Mr Burgess. Meetings were held on 3 and 16 August 2005 attended by Ms Nicolson, Mr Burgess, and Ms Luk, a rehabilitation provider, to discuss his return to work.
51. There was an email in evidence dated 10 August 2005 in which Ms Corbett criticised Mr Chadha’s notes and rejected something he had done for a second time.
52. On 11 August 2005 Mr Chadha advised his supervisor that he was going to see his doctor the next morning and would be in “around 11 am”. He submitted his resignation on 12 August 2005.. It was returned to him following intervention by his rehabilitation officer, He was referred to an Employment Assistance Program. He was off work from then until 10 October 2005 when he resumed his previous reduced hours of 4 hour a day 4 days a week.He also returned to work with a different coach whom he described during his evidence as “fantastic.”
53. On 1 September 2005 Ms Nicolson sent an email to Mr Burgess, which was also sent to Dr Synnott. It is a very comprehensive statement about Mr Chadha's work and his interaction in the workplace. In part, it states:
"In summary Kuljeet has had increasing difficulty in the workplace – performing the duties required ie specifically in making decisions and prioritising tasks and interacting with fellow team members….
Other staff, including various coaches, sometimes find it difficult to cope with Kuljeet's distressed behaviour and anger…
I feel that in Kuljeet's current emotive frame of mind it may not be safe for him to be at work nor will it be easy for other staff who deal with him. In his last weeks at work Kuljeet was teary and avoiding eye contact and conversation with other staff.
I also feel that he may not in be in a state of mind that will enable him to make decisions in relation to our business of collecting debt fairly.
54. The clinical notes and medical certificates of Dr Mahajan are important to the resolution of this case. The clinical notes from 2004 until about August 2005 comprise some handwritten notes and computer records. After August 2005 the clinical notes are only in the form of computer records. It also appears that Dr Mahajan does not keep a computer record of the content of medical certificates that she issues.
55. In any event, putting the records together as best we can, the first clinical note referring to stress at work is dated 15 July 2005 and also states
He says that they torture me indirectly
going thru severe depression.
56. Dr Mahajan prescribed antidepressant medication and referred Mr Chadha to "Vince". Other evidence establishes that was Mr Vince Herrera,who provided counselling to Mr Chadha.
57. Dr Mahajan also issued the first medical certificate referring to "work-related stress" on that day. That medical certificate also mentioned his neck and shoulder pain. It certified that Mr Chadha was unfit for work until 22 July 2005.
58. On 29 July 2005 Dr Mahajan noted "Panic attack – before starting work; does not like Vince". The note of 16 August 2005 states that “apparently things are getting worse at work. He put his resignation but his rehab officer asked him not to”. The medical certificate given on 23 August 2005 declared Mr Chadha unfit for work for two weeks. The diagnosis was Unknown Work related stress – extreme anxiety ‘ panic attacks / depression”.
59. There were records referring variously to work related anxiety, depression, panic attacks, no eating, cold sweats, hyperventilating, feeling like heart dropping, in September, October, and November 2005. A panic attack was noted on 1 February 2006 and then on 19 April 2006 Dr Mahajan noted “has been transferrd to the previous couch – extremely anxiety with physical symptoms”.Further notes on 24 April, 12, 19 and 31 May and 5 June 2006 refer to panic attacks and anxiety.
60. Dr Mahajan provided reports to Comcare dated 14 October 2005, and another dated 21 January 2007 at the request of the Mr Chadha’s solicitors. Dr Mahajan's diagnosis was work-related stress (anxiety, panic attacks and depression).
61. In the 14 October 2005 report Dr Mahajan said that “the anxiety-depression symptoms are definitely worsening and are now more persistent”. Despite that, she considered that Mr Chadha was fit for his pre-injury duties provided he was placed in an alternative office within the ATO. She said that Mr Chadha was willing to return to the same office provided he had a new coach, however, he feared unfriendliness, and she expected that his recovery would be impeded and that he would require ongoing counselling. His treatment was antidepressants and self-directed exercises. He was awaiting counselling.
62. In her 2007 report Dr Mahajan reported that Mr Chadha believed that Ms Corbett was very nice, but felt he knew more than she did and therefore she was not much help.
63. Mr Elliott of counsel, who appeared for the ATO, relied on the reports of two consultant psychiatrists, Dr Synnott, who saw Mr Chadha on 6 September 2005, and Dr Lewin, who saw Mr Chadha in October 2006.
64. Dr Chadha told Dr Synnott that his symptoms had settled over the three weeks he had been off work; he felt a little bit relaxed” and “generally everything is fine” except he continued to worry about work. However, he said that he wanted to go back to work. He was capable of doing the job – the problem was the workplace and his relationship with his coach.
65. Dr Synnott concluded that Mr Chadha described psychological distress but “currently does not have a psychiatric disorder – the symptoms he described are seen in the broader community and are not pathological or aberrant”. Dr Synnott considered that from a psychiatric point of view Mr Chadha was fit to return to work but referred to his perception of the workplace and strategies that might be used, and the possibility of a graduated return to work.
66. At the hearing, during concurrent evidence with Dr Lewin and Dr Canaris, Dr Synnott confirmed that when he saw Mr Chadha he was not functioning outside the bounds of normal human function. He also emphasised that Mr Chadha thought he had done a good job and that it is possible to suffer a form of distress but still function normally.
67. Mr Chadha told Dr Lewin that he had taken sick leave in May 2006 before going to India in June. Dr Lewin did not diagnose any psychiatric condition relating to the period in early 2005 or at the time he prepared his report. He did say that Mr Chadha was dispirited, disheartened and discouraged by his employment in early 2005. During concurrent evidence Dr Lewin confirmed his view that when he saw Mr Chadha he did not have a diagnosable condition, and his condition was not outside the bounds of normal human function.
68. Dr Canaris provided a report dated 16 September 2006. He diagnosed: “adjustment disorder with mixed anxiety and depression coupled with evidence of generalised anxiety disorder”. He says “it seems substantially more probable than not that your client’s workplace contributed significantly to his decompensation. Unfortunately, even though he has found some relief by dint of a transfer to a different section, the contradictions of his earlier predicament seem to have left their mark in the form of a continuing generalised anxiety disorder. This I believe remains a direct consequence of his previous workplace situation”.
69. We prefer the evidence of Dr Canaris in this case. We consider that it is supported by the contemporaneous records of Dr Mahajan, IPS and Ms Nicolson.
70. We find that from about 15 July 2005 Mr Chadha suffered from “adjustment disorder with mixed anxiety and depression coupled with evidence of generalised anxiety disorder" which was contributed to in a "material degree" by his employment, as discussed by Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536. As a consequence he was incapacitated for work at various times thereafter.
71. Dr Synnott saw Mr Chadha in September 2005, about three weeks after he went off work. He did not have the benefit of Dr Mahajan's clinical notes. Further, it seems to us that, as with his co-workers, Mr Chadha's presentation during the consultation did not convey his real condition at that time. Dr Synnott was also not aware of the symptoms that occurred after September 2005, and in particular of Mr Chadha's reaction to having to work with Ms Corbett in April/May 2006.
72. Dr Lewin was at pains to emphasise that it was an attempt to "medicalise" suffering, and that it was a managerial situation which had become "medicalised". We do not accept that assessment.
73. We think it appropriate to state that we do not consider that any officer of the ATO was at fault in their dealings with Mr Chadha. Rather, Mr Chadha found his work demanding and sought a great deal of assistance. He was unhappy with those who had been designated to assist him. We find that Mr Chadha's perception of his circumstances in his workplace caused his condition. His perception does not have to have been objectively reasonable: Wiegand v Comcare Australia (2002) 72 ALD 795.
74. We accept that neither of Mr Chadha’s coaches thought he had any problem with them until they were told that was so. We also accept that Ms Corbett thought she was getting on well with Mr Chadha in 2006, however, it is clear from the clinical notes and his taking time off work, that Mr Chadha was suffering in that period because he was working in the same area as she was. Once again, his presentation to his co-worker did not reflect his inner turmoil.
75. As we accept Dr Canaris's diagnosis, it is unnecessary for us to consider the alternative submission based on Mooi.
76. The final issue is whether we should make a finding about Mr Chadha's entitlement to medical expenses and incapacity payments pursuant to ss 16 and 19 of the Act.
77. Mr Elliott submitted that if we found in Mr Chadha's favour on the s 14 issue of liability we should proceed to make findings in relation to s 16 and s 19. He said that such a course would avoid another round of litigation.
78. Mr Richards, who appeared for Mr Chadha, argued that we had no jurisdiction to make such findings. In support of his argument he relied on Australian Postal Corporation v Barry [2006] FCA 1751.
79. We do not consider that Barry is authority for the proposition that we do not have jurisdiction to address those questions. In any case, it is unnecessary to address the question of jurisdiction because we do not consider that we are in a position to make the necessary findings of fact on the evidence available to us. Contrary to Mr Elliott's submission, if we did proceed as he requested, it seems to us likely that disagreement between the parties would be assured. For example, we understood Mr Elliott to ask us to make a finding that Mr Chadha's entitlements pursuant to those sections have come to an end. That would require us to make a finding that Mr Chadha no longer suffers from the diagnosed condition. The evidence does not enable us to make a finding on that question.
80. Contrary to his submission that we had no jurisdiction to deal with the s 16 and s 19 entitlements, Mr Richards asked us to remit those matters for reconsideration in accordance with s 43 (1) (c) of the Administrative Appeals Tribunal Act 1975. However, we do not consider that that is the appropriate course, assuming we had jurisdiction to do so. The available evidence does not assist us to make useful directions or recommendations. In our opinion, the better approach is to make the finding in relation to s 14 liability, and to leave it to the parties to address the consequential entitlements pursuant to s 16 and s 19 on the basis of all the relevant evidence.
Costs
81. The parties did not address us on the question of costs. However, we indicate that on the material available to us, it is our opinion that the appropriate order would be that the Respondent, Comcare, pay Mr Chadha's costs pursuant to s 67(8) of the Act. The parties have seven days from the date of this decision to advise if they wish to argue the question. If they do not, we will make the foreshadowed order.
DECISION
82. Accordingly, we make the following decision:
1. The reviewable decision of Comcare dated 29 May 2006, affirming a determination that the Applicant is not entitled to compensation under section 14 of the Act, is set aside.
2. In substitution for the decision set aside it is decided that from 15 July 2005 Mr Chadha suffered an injury, being a disease that was contributed to in a material degree by his employment, which resulted in incapacity for work. The disease was “adjustment disorder with mixed anxiety and depression coupled with evidence of generalised anxiety disorder”. Mr Chadha is entitled to compensation pursuant to s 14 of the Act.
3. We indicate that, on the material available to us, it is our opinion that the appropriate order would be that the Respondent, Comcare, pay Mr Chadha's costs pursuant to s 67(8) of the Act. The parties have seven days from the date of this decision to advise the Tribunal if they wish to argue the question. If they do not, we will make the foreshadowed order.
I certify that the preceding 82 paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Member, Dr Saw-Hooi Toh.Signed: Steven Mulipola
Associate
Date of Hearing: 9 & 10 August 2007
Date of Decision: 6 December 2007
Counsel for Applicant: Mr D Richards
Solicitor for the Applicant: Slater & Gordon
Counsel for the Respondent: Mr G Elliott
Solicitor for the Respondent: Australian Government Solicitor
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