Cosgrove-Kaye and Comcare (Compensation)

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Cosgrove-Kaye and Comcare (Compensation) [2019] AATA 1238 (7 June 2019)

Division:                  GENERAL DIVISION

File Number(s):      2017/2186; 2017/5765; 2017/5501

Re:Somone Cosgrove-Kaye

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President John Sosso

Date:7 June 2019

Place:Canberra

The Tribunal:

(a)       sets aside the reviewable decisions 2017/2186, 2017/5501 and 2017/5765;

(b)remits these decisions to Comcare for appropriate action in accordance with this decision;

(c)allows the Applicant 28 days from the date of this decision to make any application for costs.

........................................................................

Deputy President John Sosso

Catchwords

COMPENSATION – claimed conditions of fibromyalgia and conversion disorder – whether claimed conditions an injury or disease – where Respondent decides no present liability for medical treatment and incapacity – whether Applicant’s employment contributed, to a significant degree, to the onset of the Applicant’s conditions – credibility of witnesses considered – decisions under review set aside and remitted

Legislation

Safety, Rehabilitation and Compensation Act 1988
Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007

Cases

Abrahams v Comcare [2006] FCA 1829
Australian Postal Corporation v Lucas (1991) 33 FCR 101
Canute v Comcare (2006) 226 CLR 535
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Commonwealth v Smith (1989) 12 ALD 224
Federal Broom Co. Pty. Ltd v Semlitch [1964] HCA 34
Havnen and Comcare [2010] AATA 535
Howes v Comcare [2016] FCA 1521
Keenan and Comcare [2009] AATA 884
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Lees v Comcare [1999] FCA 753
Martin v TAL Life Ltd [2015] VCC 921
McNamara and Comcare [2018] AATA 3688
Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641; 156 ALD 584
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Prain v Comcare [2017] FCAFC 143
Renouf and Comcare [2004] AATA 525
Rose and Comcare [2017] AATA 790
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
Ward v Corrimal-Baalgownie Collieries Pty Ltd (1938) 61 CLR 120
Zahr v TAL Life Limited [2014] NSWSC 358

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

REASONS FOR DECISION

Deputy President John Sosso

7 June 2019

INTRODUCTION

  1. Ms Somone Cosgrove-Kaye (“the Applicant”) seeks review of three reviewable decisions of Comcare:

    (a)2017/2186: The decision of 7 April 2017 found there was no present liability under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of fibromyalgia and conversion disorder – Exhibit 1 T270 pp. 929 – 934; and

    (b)2017/5501 and 2017/5765: On 4 September 2017 Comcare, on a reconsideration of its own motion, varied two earlier determinations (of 12 October 2016 and 1 March 2017 – Exhibit 2 ST3 p. 1329 and ST4 p. 1331). Comcare determined that there was no present entitlement to incapacity payments beyond 1 March 2017 – Exhibit 2 ST7 pp.…

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Details
Case
[2019] AATA 1238
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between Ms Cosgrove-Kaye and Comcare concerning a claim for compensation. The core of the dispute involved Comcare's decision that there was no present liability for medical treatment and incapacity related to conditions claimed by Ms Cosgrove-Kaye, specifically fibromyalgia and conversion disorder. The Tribunal was tasked with reviewing this decision.

The legal issues before the Tribunal included determining whether the claimed conditions constituted an injury or a disease under the relevant legislation. Crucially, the Tribunal had to assess whether Ms Cosgrove-Kaye's employment contributed to a significant degree to the onset of these conditions. The credibility of witnesses and the weight to be given to various medical reports, particularly those prepared after the initial reviewable decision, were also central to the determination.

Deputy President John Sosso P noted that the resolution of the reviewable decision of 7 April 2017 would resolve a subsequent decision of 4 September 2017. The Tribunal examined five medical reports prepared after the 7 April 2017 decision, including those from a clinical psychologist, psychiatrists, and a rheumatologist. The Tribunal considered the detailed report of Mr George Haralambous, a clinical and forensic psychologist, who was relied upon by Comcare. Mr Haralambous's report critiqued earlier medical and employment reports, questioning diagnoses and considering the absence of objective medical pathology in relation to reported physical pain and disability. He also considered potential non-work-related stressors, such as parenting young children, in the context of Ms Cosgrove-Kaye's personality traits. The Tribunal's reasoning involved weighing this expert evidence against other material to determine the causal link between employment and the claimed conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As Mr Clark pointed out, the resolution of the reviewable decisions of 7 April 2017 will automatically resolve the reviewable decision of 4 September 2017. Accordingly, the remainder of this determination will focus on the reviewable decision of 7 April 2017.MEDICAL REPORTS PREPARED AFTER THE REVIEWABLE DECISION OF 7 APRIL 2017Introduction The Tribunal was presented with five reports that were prepared after the reviewable decision of 7 April 2017 was delivered, namely:(a)Mr George Haralambous, Clinical and Forensic Psychologist, 1 September 2017, Exhibit 14;(b)Dr William Knox, Psychiatrist, 7 September 2017, Exhibit 12;(c)Dr Christopher Cocks, General Adult and Forensic Psychiatrist, 25 September 2017, Exhibit 13; (d)Professor David Champion, Rheumatologist, 13 November 2017, Exhibit 15; and(e)Dr Vecchio, 2 August 2018 – Exhibit 20. Each of these reports, and, in particular, that of Mr Haralambous, who was relied on by Comcare, are set out below.Mr George Haralambous – Clinical and forensic psychologistThe report of Mr Haralambous of 1 September 2017 Mr Haralambous assessed the Applicant on 3 August 2017 and provided a 43 page report dated 1 September 2017 – Exhibit 14. The assessment was of 220 minutes duration and incorporated an interview of 125 minutes, administration of the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) lasting 45 minutes, administration of the Structured Inventory of Malingered Symptomatology (SIMS) of 10 minutes, and, finally the Test of Memory Malingering (TOMM) requiring 15 minutes. There was also a break of approximately 25 minutes. The report of Mr Haralambous is extremely detailed and contains extensive references to academic research. At pages 3 – 7, he accurately sets out the history of the claim and between pages 7 and 12 sets out the Applicant’s treatment history, reported symptoms and functional abilities and relevant premorbid and personal history. Of interest is the section headed “Review of the Accompanying Documents” which is located between pages 13 and 27. In this section Mr Haralambous outlines his critique of the various medical and employment reports which are set out earlier. In some instances Mr Haralambous is critical of the diagnoses provided by some of the medical experts. With respect to the report of Dr Glaser of 27 December 2007, Mr Haralambous made the following observations – Exhibit 14 p. 15:“Dr Glaser states that Ms Cosgrove-Kaye’s condition is both a reaction to her ongoing pain and disability and also a response to psychological stressors which she experienced at the time of development of her physical problems, for example, unfavourable interactions with a new manager and having to cope with the distress of fellow staff members. However, Dr Glaser does not account for the absence of objective, identifiable medical pathology in relation to the ongoing reports of physical pain and physical disability as, for example, is indicated in the report dated 6 December 2007 of Dr Peter Stevenson, Consultant Physician, referred to above, and he does not appear to consider likely non-work related stressors which appear to have been included, but are not necessarily limited to, the stressors of parenting two very young children for an anxious and worrying individual with ‘perfectionistic personality traits’.”

Ratio Decidendi

Legal Principle Established

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