Chugha and Comcare (Compensation) - [2020] AATA 2835

Chugha and Comcare (Compensation) [2020] AATA 2835 (10 August 2020)
Division:GENERAL DIVISION
File Number(s): 2018/3047
Re:Kuldip Chugha
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member Ward
Member Durkin
Member Stephan

Date:10 August 2020
Place:Adelaide

1.The Reviewable Decision of the Respondent dated 4 April 2018 is set aside.
2.It is directed that within 14 days of the date of this determination each party may apply to the Tribunal for orders in relation to costs and if not agreed, either party can apply to the Tribunal for the costs to be taxed.

...........................[Sgnd].........................................
Member A Ward
CATCHWORDS
Application to cease payments – psychiatric injury – credit in dispute – Facebook and social media – hearing via Microsoft Teams – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975
Safety Rehabilitation and Compensation Act 1988
CASES
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Davies v Nilsen [2016] VSC 557
Foong v Ghaly; Foong v McLellan [2017] NSWDC 303

SECONDARY MATERIALS
COVID-19 Special Measures Practice Direction – Freedom of Information, General and Veterans’ Appeals Divisions
REASONS FOR DECISION
Member Ward
Member Durkin
Member Stephan
10 August 2020
INTRODUCTION

The Applicant, Mr Kuldip Chugha suffered mental injury in the nature of a major depression as a result of workplace bullying and intimidation.
By determination dated 4 September 2013, the Respondent, Comcare, accepted liability for the major depressive disorder pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”).[1] The date of the injury was deemed to be 1 March 2013. The Applicant’s capacity to work as a rehabilitation officer for Comcare was adversely affected and he required extensive psychiatric treatment.
[1] Exhibit 1: T-Documents (“T”), T9/124-125.
On 14 February 2018, the Respondent made a “no present liability” determination that the Applicant was no longer entitled to compensation under ss 16 and 19 of the SRC Act.[2] This was made on the basis that the Applicant’s employment was no longer a significant contributing factor to his condition, resulting in him no longer suffering from an injury as defined in s 5B of the SRC Act (“the first decision”).
[2] T37/261-263.
On 4 April 2018, the Respondent affirmed the first decision, concluding that the Applicant may have contemporaneously had depressive symptomatology but that the 2012/2013 employment factors were no longer contributing to his accepted condition (“the reviewable decision”).[3] On 31 May 2018, the Applicant applied to the Tribunal for a review of that determination.
[3] T41/286-291.
BACKGROUND
This current review does not involve a re-hearing of the accepted claim. However, for clarity it assists to remind oneself of the original circumstances of injury. The Applicant enjoyed his work as a senior rehabilitation consultant. He told doctors that he had a problem when in about 2000 he was advised by his then supervisor that a promotion was imminent, but his supervisor was replaced by a new supervisor, Mr Ian Pope. The Applicant said that Mr Pope refused to promote him, and he took…

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 Chugha and Comcare (Compensation)

Details

AGLC: Chugha and Comcare (Compensation) [2020] AATA 2835
Case: [2020] AATA 2835
Decision Date: 10 August 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by Comcare concerning Mr. Chugha's claim for compensation. Mr. Chugha had accepted his psychiatric condition was caused by his employment, specifically due to bullying and intimidation by a supervisor between 2012 and 2013. Comcare had affirmed a previous decision that while Mr. Chugha may have experienced depressive symptoms, the employment factors were no longer contributing to his accepted condition. Mr. Chugha sought a review of this determination.

The Tribunal was required to determine whether Mr. Chugha's accepted psychiatric condition continued to be significantly contributed to by his employment, despite Comcare's assertion that the employment factors were no longer relevant. This involved assessing the weight and reliability of the medical evidence presented by both parties, particularly the differing opinions of the applicant's treating psychiatrist and the respondent's psychiatric experts.

The Tribunal considered the longitudinal therapeutic relationship between Mr. Chugha and his treating psychiatrist, Dr. Allison, who provided a diagnosis of major depressive disorder consistent with DSM-5 criteria. Dr. Allison opined that Mr. Chugha continued to suffer from the condition originating from the 2013 incidents, experiencing a loss of enjoyment of life, poor concentration, fatigue, and limited information processing capacity, rendering him unable to return to meaningful work. The Tribunal noted that negative human emotions, while impactful, do not inherently constitute a psychiatric disorder. The Tribunal also acknowledged evidence of Mr. Chugha's engagement in various activities, including extensive social media use, political involvement, and leadership roles in community organisations, which were considered in light of Dr. Allison's assessment.

The Reviewable Decision of Comcare dated 4 April 2018 was set aside. The Tribunal directed that within 14 days, either party could apply for orders regarding costs, and if costs were not agreed, either party could apply for taxation.

Orders

Orders of the court

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Background

Background to the litigation

On 4 April 2018, the Respondent affirmed the first decision, concluding that the Applicant may have contemporaneously had depressive symptomatology but that the 2012/2013 employment factors were no longer contributing to his accepted condition (“the reviewable decision”).[3] On 31 May 2018, the Applicant applied to the Tribunal for a review of that determination.[3] T41/286-291.BACKGROUND This current review does not involve a re-hearing of the accepted claim. However, for clarity it assists to remind oneself of the original circumstances of injury. The Applicant enjoyed his work as a senior rehabilitation consultant. He told doctors that he had a problem when in about 2000 he was advised by his then supervisor that a promotion was imminent, but his supervisor was replaced by a new supervisor, Mr Ian Pope. The Applicant said that Mr Pope refused to promote him, and he took this up with his superiors and was eventually promoted as promised. Following that event, the Applicant said that Mr Pope began to treat him “unfavourably”. He was not cordial in usual office interaction. The Applicant had an “extremely difficult” two years under Mr Pope’s management. This came to an end in about 2002 and he was mindful of an improvement in his emotional condition. However, Mr Pope became the Applicant’s supervisor again in June 2012. This caused an exacerbation of his distress due to a continuation of inappropriate behaviour which included bullying and intimidation and a feeling of discrimination against him because of his accent. All this led to a deterioration in the Applicant’s medical condition. He sought treatment for these problems from his general practitioner, Dr Catherine Mutton. Eventually he became unable to continue working due to his psychiatric condition. This was assessed by qualified psychiatrists at the time as being caused by his employment. These psychiatrists were aware that the Applicant had a prior motor vehicle accident claim, which also had a component for psychiatric injury. The Applicant was humiliated and angry at this treatment at the hands of his supervisor, and, as noted above, the Respondent accepted his claim in September 2013. Dr Richard Allison was (and is) the Applicant’s treating psychiatrist. He reported in June of 2014 that the Applicant’s ‘recurrence of depression occurred in the context of bullying in the workplace’.[4] He noted that when he made those comments the bullying had ceased, but the effect of it had not. The Applicant at that point had not recovered. The bullying remained the most significant cause of the Applicant’s ‘current episode of depression’.[5][4] T14/149.[5] Ibid. On 14 February 2018, the Respondent determined that it had no liability for medical expenses or incapacity payments. At that time, and up to the hearing of this matter, the Applicant maintained that he continued to suffer symptoms and disability and that his employment continued to contribute to the ongoing condition to a significant degree.

Evidence

Evidence Before The Court

The Tribunal also confirms that whilst many issues were raised over the course of the hearing, some matters were less relevant than others, as in the example above. In this regard we are mindful of the comments of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[11][11] [2003] FCAFC 184.CONSIDERATION OF MEDICAL EVIDENCE The case before the Tribunal represented a challenge because of the seemingly polarised views of the evidence presented by the psychiatric experts for the Respondent and the Applicant. It is salient to remind ourselves that the issue of psychiatric diagnosis is rarely simple and often requires longitudinal assessment beyond relatively brief, cross-sectional arrangements. Psychiatric opinion based on limited interview arrangements, documentation review and dependence on the experience of the assessor in medicolegal settings must stand tested against the opinion of the treating health professional which carries potentially significant weight in evidence. With regard to the need for definitive diagnosis in the psychiatric domain, it must also be borne in mind that negative human emotions do not by their nature signify a psychiatric condition. Experiences of sadness, anger, hatred, resentment etc. are normal expressions of human feelings often exercised within the interpersonal domain. Even if exerting severe or deleterious impact upon the individual’s relationships or functioning this does not demand a psychiatric disorder representing a mental illness or disease of the mind or mental incapacity. The evidence presented by the Applicant’s treating psychiatrist, Dr Allison, reflects a longstanding therapeutic relationship between doctor and patient. Dr Allison was clear in his opinion that the Applicant continues to suffer from the condition which had its origins in the 2013 incidents. Dr Allison states in the record that, as recently as November 2019, the Applicant has a formal psychiatric diagnosis of a major depressive disorder and ‘which more than amply fulfil the DSM5 diagnostic criteria for major depression’.[12][12] Exhibit 12, 5. Dr Allison elaborated that the Applicant predominantly suffers from a loss of enjoyment of life in the absence of suicidal thinking, in addition to poor concentration, energy and motivation, has persistent fatigue and that processing information from conversations is so limited that anything ‘more than eight words’[13] in length would not be registered. This remains Dr Allison’s primary opinion which thus determines the view that the Applicant’s functional capacity is extremely poor and renders him unable to engage in meaningful return to work which, were it to occur, could be a source of further deterioration in his mental state.[13] Ibid. Dr Allison was informed of the history of the Applicant’s activities in recent years, some of which he was previously unaware of. As noted previously, the evidence before the Tribunal consists of a variety of such activities; salient amongst these are the long term use of social media with frequent comments entered into Facebook reflecting the Applicant’s sharp awareness of current affairs, a longstanding interest in politics, the Applicant’s significant presence at political functions, the Applicant’s’ two year attempt at parliamentary preselection, his ongoing and current presidency of the prominent Punjabi Association of South Australia where he has been involved in assisting with the organisation of the pre-eminent annual festival, the Diwali, and his other actions such as advocating for fellow Punjabis in search of employment.

Decision

Reasons for decision

The respondents are usually very well equipped on the technology side and are sophisticated and experienced practitioners. We do not see that such a course would cause any unfair advantage for an applicant, but rather be necessary to ensure they are not disadvantaged by the exigencies of the times.DECISION The Reviewable Decision of the Respondent dated 4 April 2018 is set aside. It is directed that within 14 days of the date of this determination each party may apply to the Tribunal for orders in relation to costs and if not agreed, either party can apply to the Tribunal for the costs to be taxed.

Ratio Decidendi

Legal Principle Established

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