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 2007Cases
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 358Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
REASONS FOR DECISION
Deputy President John Sosso
7 June 2019
INTRODUCTION
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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- [2019] AATA 1238
- Decision Date
CaseChat Overview and Summary
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.
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