Dalton and Comcare (Compensation)

Case [2018] AATA 2923

Dalton and Comcare (Compensation) [2018] AATA 2923 (16 August 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2017/5526
GENERAL DIVISION  )         

Re: Cassandra Dalton

Applicant

And: Comcare

Respondent

CORRIGENDUM

TRIBUNAL:              Mark Hyman, Member

DATE OF CORRIGENDUM:   7 September 2018

PLACE:                    Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application to read as set out immediately below.

The Tribunal decides that in the present matter the exclusion in subsection 7(7) of the Safety, Rehabilitation and Compensation Act 1988 is not enlivened.

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

Mark Hyman, Member

Division:                  GENERAL DIVISION

File Number(s):      2017/5526

Re:Cassandra Dalton

APPLICANT

AndComcare

RESPONDENT

AndSecretary, Department of Social Services

JOINED PARTY

DECISION

Tribunal:Mark Hyman, Member

Date:16 August 2018

Place:Canberra

The tribunal sets aside the decision under review, and in substitution decides that the exclusion in subsection 7(7) of the Safety, Rehabilitation and Compensation Act 1988 is not enlivened.

..........................[sgd].......................................

Mark Hyman, Member

Catchwords

COMPENSATION – bullying and isolation – psychological condition - whether the applicant’s claim is for an injury or a disease - exclusion for wilful and false representation that the applicant had previously suffered from the disease for which compensation is now claimed – whether the representations were for purposes connected with employment – whether the disease denied in the representations was the same as that for which compensation was claimed - diagnosis of adjustment disorder – alternative diagnosis of dysthymia – potentially compensable disease not the same as the disease denied in the representations - claim is not excluded

Legislation

Administrative Appeals Tribunal Act 1975 s 37

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 7, 14, 16, 19

Cases

Abrahams and Comcare [2006] FCA 1829

Anderson and Australian Postal Corporation [2016 AATA 228

Bailey v Broadside Marine Contractors Pty Ltd [2017] FCAFC 219

Comcare v Mooi [1996] FCA 1587

Griffiths and Australian Postal Corporation [2017] AATA 1025

Griffiths v Australian Postal Corporation [2018] FCA 520

Kennedy and Comcare [2015] AATA 334

National Australia Bank Ltd v Georgoulas (2013) FCA 1412

Prain v Comcare [2017] FCAFC 143

Telstra v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

Mark Hyman, Member

16 August 2018

  1. At the heart of this matter is the compensation claim of the applicant, Ms Cassandra Dalton. Ms Dalton is the applicant in a number of related matters before the tribunal, with file numbers 2016/7009, 2017/21, 2017/2085, 2017/2141 and 2017/2391, in addition to the present matter. In all six matters Comcare is the respondent. In two of them the applicant is not Ms Dalton but the Secretary, Department of Social Services, Ms Dalton’s employer at the relevant time. The Secretary is a joined party in the present matter. In a reviewable decision dated 17 July 2017 Comcare decided that subsection 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) operates to exclude Ms Dalton’s claimed injury. On 12 September 2017…

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AGLC
Dalton and Comcare (Compensation) [2018] AATA 2923
Case
[2018] AATA 2923
Decision Date

CaseChat Overview and Summary

This matter concerned a claim for compensation by Ms Dalton against Comcare for a psychological condition allegedly arising from bullying, segregation, and isolation at her workplace. The dispute centred on whether Ms Dalton's claim was excluded under subsection 7(7) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) due to alleged wilful and false representations about her prior medical history. The decision was made by Member Mark Hyman.

The legal issues before the court were whether Ms Dalton's claim constituted an injury or a disease, and crucially, whether the exclusion in subsection 7(7) applied. This exclusion is triggered if an employee makes a wilful and false representation that they have not previously suffered from the disease for which compensation is now claimed, and if that representation was made for purposes connected with employment. The court was required to determine if the representations made by Ms Dalton met these criteria, specifically whether the disease denied in the representations was the same as the condition for which compensation was claimed.

The court reasoned that Ms Dalton's condition was an ailment under the *Safety, Rehabilitation and Compensation Act 1988*. It found that the exclusion under subsection 7(7) required proof of four elements: that the representation was made for purposes connected with employment, that it denied a previous suffering of the claimed disease, that it was objectively false, and that it was wilfully false. The court determined that Ms Dalton's second representation, made for the purpose of obtaining employment, met the first element. However, the court considered the nature of the representations and the diagnoses provided by medical professionals. It noted that while Ms Dalton had disclosed a history of anxiety and had received some counselling and medication in the past, the specific diagnoses of "adjustment disorder" and "dysthymia" for which compensation was claimed were not necessarily the same as the general anxiety she had disclosed. The court concluded that the exclusion under subsection 7(7) did not apply because the disease denied in the representations was not the same as the disease for which compensation was claimed.

The court found that Ms Dalton's claim was not excluded under subsection 7(7) of the *Safety, Rehabilitation and Compensation Act 1988*.

Orders

Orders of the court

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Background

Background to the litigation

Section 14 of the SRC Act is the gateway provision for compensation. It provides that liability to pay compensation arises in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment (subject to exclusions not presently relevant). Section 16 provides for compensation for medical expenses and section 19 provides for payment where an injury makes an employee incapacitated for work.THE FACTS The context to Ms Dalton’s claim is that she took up employment with the Department of Social Services, beginning on 25 February 2013. On 17 May 2013 she lodged a claim for compensation[1] for “acute stress reaction” and “acute anxiety”, nominating 16 April 2013 and “middle of April” as the date she was injured or first noticed she was ill. Ms Dalton answered the question “have you ever had a similar symptom, injury or illness, work-related or otherwise?” by ticking the “Yes” box and adding “I suffer from Anxiety when in stressful situations. Dates unknown”, and answered the question “Have you ever received medical treatment for a similar injury or illness” by ticking the “No” box. Later in the form Ms Dalton added information about the circumstances under which the condition arose, identifying bullying, segregation and isolation at work as contributing factors or causes.[1] T3, folios 19-31, 2016/7009 & 2017/21.Medical evidence Ms Dalton has seen a number of psychiatrists in the years since 2013, and they have provided diagnoses of the condition from which she was suffering and have offered opinions regarding the contribution to her condition by the workplace. A number of other doctors have also provided reports of varying kinds. On the basis of recently available medical records, Comcare has asserted that many of the psychiatrists’ reports cannot be relied on because Ms Dalton did not reveal her prior medical history of psychological issues with any completeness or precision. The first report[2] was completed on 5 August 2013 by Dr Zeeva Cohen, a psychiatrist, at Comcare’s request. Dr Cohen reported limited events from Ms Dalton’s past medical history, including a few counselling sessions around 2010; short-term use of anti-depressant medication in 1994; and an anxiety attack in about 2000. Dr Cohen diagnosed Ms Dalton with “Adjustment Disorder with Depressed and Anxious Mood at the time of interpersonal conflict at work” based on the Diagnostic and Statistical Manual of Mental Disorder (DSM-IV). The diagnosis was phrased to the effect that Ms Dalton “may have suffered” from that condition. Dr Cohen also indicated that Ms Dalton said that her condition had “mostly resolved” by the time of the consultation.[2] T5, folios 37-45, 2016/7009 & 2017/21. Comcare accepted liability for Ms Dalton’s condition on 20 September 2013[3].[3] T7, folios 146-151, 2016/7009 &2017/21. On 2 May 2014 Dr Paul Appleton, a general practitioner, wrote to Comcare[4], it appears in answer to questions that Comcare provided, although the letter requesting answers is not in evidence. Dr Appleton said that Ms Dalton’s condition was work-related; that her condition had been diagnosed by the psychiatry registrar at the practice as “adjustment disorder with anxious mood”; and that the attempts to place Ms Dalton in a conventional office had been “doomed to failure”, given her personality and background.[4] T11, folios 165-6, 2016/7009 &2017/21.

Evidence

Evidence Before The Court

The context to Ms Dalton’s claim is that she took up employment with the Department of Social Services, beginning on 25 February 2013. On 17 May 2013 she lodged a claim for compensation[1] for “acute stress reaction” and “acute anxiety”, nominating 16 April 2013 and “middle of April” as the date she was injured or first noticed she was ill. Ms Dalton answered the question “have you ever had a similar symptom, injury or illness, work-related or otherwise?” by ticking the “Yes” box and adding “I suffer from Anxiety when in stressful situations. Dates unknown”, and answered the question “Have you ever received medical treatment for a similar injury or illness” by ticking the “No” box. Later in the form Ms Dalton added information about the circumstances under which the condition arose, identifying bullying, segregation and isolation at work as contributing factors or causes.[1] T3, folios 19-31, 2016/7009 & 2017/21.Medical evidence Ms Dalton has seen a number of psychiatrists in the years since 2013, and they have provided diagnoses of the condition from which she was suffering and have offered opinions regarding the contribution to her condition by the workplace. A number of other doctors have also provided reports of varying kinds. On the basis of recently available medical records, Comcare has asserted that many of the psychiatrists’ reports cannot be relied on because Ms Dalton did not reveal her prior medical history of psychological issues with any completeness or precision. The first report[2] was completed on 5 August 2013 by Dr Zeeva Cohen, a psychiatrist, at Comcare’s request. Dr Cohen reported limited events from Ms Dalton’s past medical history, including a few counselling sessions around 2010; short-term use of anti-depressant medication in 1994; and an anxiety attack in about 2000. Dr Cohen diagnosed Ms Dalton with “Adjustment Disorder with Depressed and Anxious Mood at the time of interpersonal conflict at work” based on the Diagnostic and Statistical Manual of Mental Disorder (DSM-IV). The diagnosis was phrased to the effect that Ms Dalton “may have suffered” from that condition. Dr Cohen also indicated that Ms Dalton said that her condition had “mostly resolved” by the time of the consultation.[2] T5, folios 37-45, 2016/7009 & 2017/21. Comcare accepted liability for Ms Dalton’s condition on 20 September 2013[3].[3] T7, folios 146-151, 2016/7009 &2017/21. On 2 May 2014 Dr Paul Appleton, a general practitioner, wrote to Comcare[4], it appears in answer to questions that Comcare provided, although the letter requesting answers is not in evidence. Dr Appleton said that Ms Dalton’s condition was work-related; that her condition had been diagnosed by the psychiatry registrar at the practice as “adjustment disorder with anxious mood”; and that the attempts to place Ms Dalton in a conventional office had been “doomed to failure”, given her personality and background.[4] T11, folios 165-6, 2016/7009 &2017/21.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I find that Ms Dalton’s condition was an ailment under the SRC Act.The operation of subsection 7(7) The definition of a disease in subsection 5B(1) of the SRC Act means that a finding that a claimant is suffering from a disease requires an anterior finding that the claimant’s ailment was contributed to, to a significant degree, by the claimant’s employment. The use of the word “disease” in section 7, however, appears to be the general or ordinary use of that term rather than the technical sense established by section 5B, and so the nexus with employment does not need to be demonstrated. That was the position taken by Reeves and Derrington JJ in Bailey (at [66], with regards to different legislation but with provisions closely similar to those in the SRC Act). The requirement in subsection 7(7) is that four elements are established with regard to one or both of the contested representations (the second and third representations):(a)that Ms Dalton made the representation for purposes connected with employment or proposed employment by the Commonwealth or a licensed corporation;(b)that the representation was to the effect that she did not suffer, or had not previously suffered, from the disease for which she now claims compensation;(c)that the representation was objectively false; and (d)that the representation was not only false but wilfully so. The drafting of subsection 7(7) requires that all four of the above elements are established. Mr Pattenden, for Ms Dalton, has stressed that although in a formal sense in tribunal processes neither side bears the onus of establishing any matter, the exclusion under subsection 7(7) requires the party asserting that the exclusion applies to bring forward the facts that establish that exclusion. It is certainly the case that the exclusion of a person from access to compensation is a serious denial of what would otherwise be the person’s normal entitlements associated with employment. It is therefore up to the party asserting the exclusion to ensure that the facts clearly demonstrate the conclusion sought, on the balance of probabilities.Were the representations for purposes connected with employment? The second representation was made for the purposes of obtaining employment with the Department of Social Services. It has not been challenged by the applicant that it was a representation made for purposes connected with proposed employment by the Commonwealth, and I so find. Mr Pattenden asserts that the third representation was not made “for purposes connected with” Ms Dalton’s employment. The basis of this argument is that the representation was for purposes connected with Ms Dalton’s illness. That conclusion was reached in similar circumstances by Senior Member Cremean in Anderson and Australian Postal Corporation [2016 AATA 228 (at [109]), but in other matters the tribunal has come to the opposite conclusion (see Griffiths and Australian Postal Corporation [2017] AATA 1025 at [16] (Deputy President Humphries); Kennedy and Comcare [2015] AATA 334 at [35] (Deputy President Hack)).