de Leon and Comcare (Compensation) - [2017] AATA 563

de Leon and Comcare (Compensation) [2017] AATA 563 (28 April 2017)
Division:General Division
File Numbers: 2015/1969 and 2015/2626
Re:Cynthia de Leon
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:28 April 2017
Place:Sydney

The decision under review is affirmed
.............................[sgd]...........................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
COMPENSATION – further claim for compensation – permanent impairment and non-economic loss – aggravation of major depressive disorder – whether applicant continues to suffer an aggravation of major depressive disorder compensable by respondent - whether applicant suffers a permanent impairment as a result of the injury – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14, 16, 19, 24, 27
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
28 April 2017
INTRODUCTION

In or around 1999, the applicant commenced work with the Australian Taxation Office (ATO).
On 1 July 2004, she joined the small business team and expressed a wish to be primarily involved in technical rather than compliance work. She was assigned to compliance work.
The applicant reported an incident at work when she attended her first site visit prior to November 2004. She said the technical officer she went with was not able to answer questions asked by the client and had lost her temper. The applicant reported this to her incident manager and requested to be assigned a different officer. This request was denied.
The applicant was then given further assignments with that particular officer and, as a result of another allegedly unprofessional audit conducted by the same officer and the applicant on or about 13 April 2005, the applicant took time off work and received medical treatment.
She was off work for a considerable period of time and, after attempts to return to work, subsequently signed a consent agreement which was filed with the Tribunal and dated 19 November 2009.
This consent agreement set aside the decision by the respondent dated 27 June 2007 rejecting the applicants claim and in substitution it was decided:
(a)The applicant sustained an aggravation of major depressive disorder on 13 April 2005 as a result of the audit incident which occurred during the course of her employment; and
(b)The respondent was liable to pay compensation to the applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of the injury.
On 3 April 2014, the applicant lodged a claim with the respondent for permanent impairment and non-economic loss.
On 16 December 2014, the applicant was sent by the respondent to see Dr Hong, a Consultant Psychiatrist, as a result of her seeking permanent impairment and non-economic loss.
Dr Hong’s medical report dated 23 December 2014 stated that there was no evidence that the applicant's former employment continued to contribute to her current mental state. Accordingly, the respondent, by Determination dated 9 February 2015 (the ‘Initial determination’) denied liability to pay compensation to the applicant under Sections 24 and 27 of…

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 de Leon and Comcare (Compensation)

Details

AGLC: de Leon and Comcare (Compensation) [2017] AATA 563
Case: [2017] AATA 563
Decision Date: 28 April 2017

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, de Leon, against a decision by Comcare to reject a further claim for compensation. The applicant sought compensation for permanent impairment and non-economic loss, alleging an aggravation of a major depressive disorder stemming from workplace incidents. The core dispute revolved around whether the applicant continued to suffer from a compensable aggravation of her major depressive disorder and whether this condition resulted in a permanent impairment.

The legal issues before the Tribunal were twofold: first, whether the applicant's major depressive disorder was still being aggravated by the workplace incident, and second, if so, whether she suffered a permanent impairment as a result of that injury. The Tribunal was required to determine if the effects of the workplace incident persisted and remained a causative factor in the applicant's condition, or if it had been superseded by other events.

The Tribunal considered extensive written and oral evidence from various treating and medico-legal doctors, as well as the applicant herself. While acknowledging the subjective nature of psychiatric evidence and the potential for differing medical opinions, the Tribunal found the evidence presented by the medical practitioners to be impressive. The Tribunal also noted that the applicant appeared to be doing her best to recount events, though she was considered a guarded historian, with a significant past incident of sexual abuse only coming to light during the proceedings. Ultimately, the Tribunal was satisfied that the workplace incident continued to affect the applicant, leading to a determination that she suffered a permanent impairment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

After the hearing days in August 2016, several treating doctors and medico-legal doctors were given additional information, including information in relation to the sexual assault, and asked to provide further comment which they did in reports and in oral evidence given during the November hearings. BACKGROUND The applicant was born on 10 October 1962 in the Philippines. It appears the applicant's mother was not a particularly maternal woman and the applicant hardly knew her father, who was not on the scene from the time she was a very young child. She lived from the age of about nine with an uncle and aunt for about one year and after that with her grandparents. Around the time her parents were looking to separate (when she was seven or eight years of age) there were some steps taken to offer her for adoption to family members. This caused her concern but it appears it did not eventuate. At about the age of nine she was sexually abused by a gardener at her parent’s property. It also appears that her mother, on occasions, would use corporal punishment with her, that her grandparents were quite strict and that her grandmother did not approve of some of the men she associated with at school and university. In the late 1980s the applicant moved to Australia with her fiancé and initially lived in Blacktown with his parents. In June 1989 the applicant married. The applicant and her husband moved to Parramatta after they married and between 1990 and 1991 she worked for the ANZ bank. It was during this period that she learnt of her husband's infidelity. Whilst with the ANZ bank, the applicant stated that she had been stalked for about a month and that her manager on one occasion had spoken inappropriately to her. On 8 July 1991 she commenced working with the Commonwealth Bank of Australia (CBA). During her time at CBA, she had some difficulty with fellow workers and her team leaders. She complained about her leader getting angry with her and abusing her in front of other workers. This was disputed and it led to her being off work for some two weeks in 1994 and making a Comcare claim (the 1994 Comcare claim) which was subsequently rejected. During her time at the Commonwealth Bank, she also reported an incident of stalking which lasted for three months which included visits to her branch and telephone calls to her. In 1994, the applicant consulted a number of health professionals for stress including Dr S Ng, a General Practitioner, and a Mr Michael Sakr, whom she reported the sexual assault as a nine-year-old to. The 1994 Comcare claim for stress was denied on 19 January 1995 and a report prepared for Comcare by Clinical Psychologist J Farrelly dated 12 December 1994, who noted that the applicant had reported her parents had offered her for adoption following their separation. Page 5 of Ms Farrelly’s report stated “she is seen to be experiencing a moderate level of depression, characterised by feeling retiring, shy, remote and sad”. Ms Farrelly noted on page 7 of her report that, whilst the applicant stated that her marriage was satisfactory, people in the work environment gained the impression there were domestic problems and that may well have contributed to her depression and anxiety.

Evidence

Evidence Before The Court

On 21 July 2016 the applicant's ABM was cancelled. FURTHER EVIDENCE BEFORE THE TRIBUNAL The above background deals with some evidence and opinion stated by various doctors before the Tribunal. As well as this, various medical reports were tendered in evidence and a number of doctors gave evidence. Set out below are what the tribunal considers to be the most relevant parts of their written and oral evidence.DR L. LEE Dr Lee saw the applicant on several occasions and prepared 2 reports dated 14 December 2015 and 17 August 2016. Dr Lee’s report of 14 December 2015 did not encompass a full picture of the applicant’s past history. Nevertheless, he was aware of her work history including the incidents in 2004 and the problems she had with her supervisor. He also referred to her having to do calculations on a spread sheet which she didn't know how to do (in about 2004), which depressed her and she had suicidal impulses. When she ceased work her manager kept calling after hours disregarding Dr Ho’s medical certificate. This is an apparent reference to when she was on leave between 2005 and 2007. Dr Lee recorded that the Applicant was made to return prematurely to work after the 2004 incident and the staff did not make allowances for her depression. Consequently, the applicant got more and more depressed and ceased work in 2007 because the stress was causing her backaches, a stiff neck and she was not coping with people laughing at her. Dr Lee was aware that she had consulted Dr Teoh and more recently, Dr Singh, who (in the applicant’s words) thought the applicant was paranoid. The applicant thought that Dr Singh had organised her admission to Cumberland Hospital in 2014 and accordingly she now consults a different GP who is prescribing her with the anti-depressant ‘Lovan’. Dr Lee referred to the various documents before him from the other medical professionals and came to the conclusion as a result of his examination that her presentation was consistent with chronic major depressive disorder. Dr Lee further considered it is highly likely, based on the history of the records he reviewed, that the applicant was suffering from chronic depression prior to admission to Cumberland Hospital in 2014. He also considered that she suffered acute exacerbations and deteriorations due to her psychiatric injury prior to her admission and felt that she should be referred to a psychiatrist for ongoing psychiatric treatment. Dr Lee considered the condition had stabilised and stated, in answer to a question relating to permanent impairment according to Comcare Guidelines: “Ms De Leon has reactions to the stresses of daily living which cause modification of daily living patterns together with marked disturbance in thinking and definite disturbances in behaviour. She is a hospital dischargee who requires therapy to avoid readmission and her loss of self-control and/or inability to learn from experience results in potential damage to herself. Hence, the permanent impairment is 40%.While underlying dysfunctional personality has been postulated, that history indicates that she had no impairment prior to the work-related issues. Her prognosis for the future is poor.”

Decision

Reasons for decision

The applicant said she did not recall seeing the Psychologist at that time. In answer to why she had not disclosed what practitioners she'd seen, she stated that she only gave the names of those that she could recall.DISCUSSION AND DECISION I have already set out what appears to be the agreed parameters in relation to this matter as far as the parties are concerned in paragraphs [15] to [28] above. If the Tribunal is satisfied, on both the written and oral evidence, that the workplace incident continued to have an effect on the applicant from 13 April 2005 until the present time, or at least until the time the decision was made to stop paying benefits, then the applicant will succeed and the question of permanent disability will be considered. Her application for permanent impairment was what triggered the re-evaluation by Comcare. If the injury she suffered, namely the workplace incident in April 2005, had ceased or been rectified and could no longer be said to be present, or had effectively been superseded by other incidents and was thus no longer effectively a cause of the applicant’s condition, then the determination of the respondent should be affirmed and the Tribunal does not have to consider any issues of permanent impairment (or indeed the issue of costs because costs will not flow to the applicant as a result of her being unsuccessful). Respective Counsel for the applicant and the respondent made detailed submissions and quoted a number of cases where each party accepted the basic premises being made in relation to what those respective cases represent. I have already commented on each submission and the basic premise which I believe each submission address. It is often said, by at least one medical expert who gives evidence in these types of cases, that the medical evidence is only a guide as it is based on opinion and that, especially in areas concerning mental health and psychiatric conditions Consequently,, this area of medicine is not an exact science and there are many opinions. The Tribunal was impressed with the written and oral evidence given by all the medical practitioners and health professionals who gave evidence. The Tribunal can understand the basic premises inherent in the evidence given by each of the main medical practitioners in this matter. The Tribunal also had the benefit of hearing from the applicant over several days in August and November 2016. The applicant appeared to be doing her best to describe the various incidents and to answer questions put to her as best she could. The Tribunal would not expect the applicant to be able to remember every name of every person who treated her and when they treated her, nor would it expect her to be able to recall and give details of exactly how each of the major events in her life panned out and what she told the various medical practitioners at the time. It did appear to the Tribunal, however, that she was a guarded historian. It was quite apparent that, until August 2016, no one involved in this matter knew of the sexual assault incident.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.