DJVD and Comcare (Compensation) - [2020] AATA 4614

DJVD and Comcare (Compensation) [2020] AATA 4614 (13 November 2020)
Division:GENERAL DIVISION
File Number: 2018/1066
Re:DJVD
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:13 November 2020
Place:Melbourne

The Tribunal sets and aside the decision under review dated 6 December 2017 and in substitution decides as follows:
(a)from the close of business 13 September 2017 DJVD is no longer entitled to compensation in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 arising from the condition aggravation of neuralgia, neuritis, and radiculitis, unspecified (right), aggravation of degeneration of intervertebral disc (right), and aggravation of intervertebral disc disorder – cervical region (right);
(b)from the close of business 13 September 2017 to the present date and at the present date DJVD continues to suffer from the effects of Major Depressive Disorder and is entitled to compensation under s 16 and s 20 of the Safety, Rehabilitation and Compensation Act 1988; and
(c)the Tribunal directs that within 14 days of the date of this decision each party may apply to the Tribunal for orders in relation to costs and, if not agreed, either party may apply to the Tribunal for the costs to be taxed.

[sgd]……………………………………….
Senior Member
Catchwords
COMPENSATION – determination to cease liability for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether applicant continues to suffer the effects of the compensable injuries – injury affecting cervical spine – major depressive disorder – whether applicant’s physical symptoms a result of underlying degenerative change – whether applicant’s psychiatric condition continues to be contributed to, to a significant degree, by her employment – decision under review set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Australian Industry Development Corporation v Boyd [1990] FCA 96
Australian Telecommunications Commission v Tzikas [1985] FCA 385
Canute v Comcare [2006] HCA 47
Commonwealth of Australia vKeith Colville Smith [1989] FCA 189
Eaves v Blaenclydach Colliery Company Ltd [1909] 2 KB 73
Prain v Comcare [2017] FCAFC 143
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
13 November 2020
BACKGROUND

DJVD applied to the Tribunal in an Application dated 1 March 2018 for review of a decision of Comcare dated 6 December 2017. The Application being filed late, an extension of time was sought and the Respondent consented. This decision affirmed an earlier decision on 12 September 2017 determining that Comcare had no present liability for DJVD’s physical and psychological conditions.
DJVD lodged a claim on 7 May 2002 in relation to a work-related injury she described as occurring in July 2001. DJVD reported in this claim right upper and lower arm pain and weakness, right elbow and shoulder blade and pectoral pain. Comcare accepted liability for a cervical spine condition and declined to accept liability for a right shoulder injury.
DJVD subsequently applied for compensation for physical conditions arising from an incident at work on 10 November 2009.…

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.

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Details

Case: [2020] AATA 4614
Decision Date: 13 November 2020

CaseChat Overview and Summary

This matter concerned an appeal by DJVD against a decision by Comcare to cease liability for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The dispute centred on whether DJVD continued to suffer from the effects of her compensable injuries, specifically an injury affecting her cervical spine and a major depressive disorder. The case was heard by Dr Stewart Fenwick, Senior Member.

The legal issues before the Tribunal were whether DJVD’s physical symptoms were a result of underlying degenerative change, and whether her psychiatric condition continued to be contributed to, to a significant degree, by her employment. The Tribunal was required to determine the extent to which DJVD's current conditions were attributable to her work-related incidents and pre-existing factors, and whether compensation under sections 16 and 20 of the Act remained appropriate.

The Tribunal reasoned that while DJVD's physical cervical spine condition might be linked to degenerative changes, her major depressive disorder had transformed into a more serious and intractable condition. Applying principles from cases such as *Eaves v Blaenclydach Colliery Company Ltd* and *Commonwealth of Australia v Keith Colville Smith*, the Tribunal found that mental effects secondary to an injury do not necessarily cease when the physical injury resolves. Despite DJVD's vulnerability and pre-existing factors, the Tribunal was satisfied that her psychiatric condition was contributed to, to a significant degree, by her employment.

Consequently, the Tribunal set aside Comcare's decision. It determined that from 13 September 2017, DJVD was no longer entitled to compensation for the aggravation of her physical cervical spine conditions. However, it also found that from that date to the present, DJVD continued to suffer from Major Depressive Disorder and remained entitled to compensation under sections 16 and 20 of the Act. The Tribunal also directed that parties could apply for costs within 14 days.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The specific forms of compensation relevant to this matter are compensation for medical treatment ‘obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances)’ under s 16, and compensation to an employee incapacitated as a result of an injury where an employee is retired and in receipt of a superannuation pension under s 20.EVIDENCEDJVD Examination-in-chief consisted of the adoption by DJVD of her two written statements (Exhibits A1 and A2). Exhibit A1 is a brief statement addressing, primarily, the 2009 workplace incident and pain and treatment experienced by DJVD since that time. In this statement DJVD provides the following evidence:(a)in November 2009 she received a box from a courier and immediately felt pain in her neck, returned to her desk with the box and went on to advise management about the incident;(b)DJVD took time off work, underwent physiotherapy, lodged a claim for the incident in March 2010, was placed in a different role and subsequently had workplace assessments conducted, and continued to be placed under pressure with her duties;(c)she was placed on anti-depressants in late 2010, continued to take time off work, took an overdose of pain medication and in 2011 was admitted as an inpatient for mental health treatment;(d)her neck symptoms have not improved since 2009 and she has continually sought treatment for her pain and psychological symptoms, including consulting the Sexual Assault Referral Centre in 2018 in relation to an incident in her childhood. Exhibit A2 is more comprehensive and also addresses additional workplace incidents. In this statement DJVD provides the following evidence:(a)her parents separated when she was young and she left school at 15 taking a series of administrative and clerical jobs;(b)when working in a law firm (accepted in cross-examination as probably in 1985) she was required to move some hessian sacks of archived files and in doing so experienced neck pain. In cross-examination she stated she had a week off work and some physiotherapy and experienced no further symptoms;(c)she married in 1988, gave birth to her daughter in January 1990 and in May of that year separated from her husband. She continued to work in a series of clerical jobs prior to commencing with Centrelink in 1998;(d)she experienced a right shoulder injury, possibly in April 2000, when trying to take a box off a shelf and other than possibly receiving some physiotherapy could recall little about the incident. In cross-examination DJVD appeared to accept the incident may have been late in 2000;(e)she lodged a claim form in May 2002 (Exhibit R2) for an incident described as ‘working at the computer for extended periods’ (R2, p 13) and in cross-examination DJVD stated she experienced pain both at work and at home performing a range of domestic duties and had continued for 18 years;(f)in around October 2002 she was involved in a car accident and experienced pain in the upper back and left side of her neck. In cross-examination she stated she was doing the speed limit at the time (60 kph) and the impact caused her car to spin around ‘a couple of times’. The pain resolved following physiotherapy; (g)she continued to work but with ongoing pain and experienced periods off work or with modified duties including reduced workload, her tasks included keyboard work and client engagement by phone. She underwent a number of workplace assessments and various treatments by way of rehabilitation. Sometime in 2006 she was feeling suicidal as a result of ongoing pain and had sessions of treatment through the employee assistance scheme;(h)in November 2009 she received a box (approximately 30 cm x 25 cm x 10 cm) bearing a ‘heavy’ sticker from a courier containing glossy brochures. She carried the box to her desk and experienced ‘increased’ pain in her neck, reporting the incident to management;(i)she lodged a claim form for this incident in March 2010 and was subsequently transferred to another team doing data entry and was offered some flexibility in work performance. However, DJVD felt under pressure from her supervisor to perform;(j)in October 2010 she was prescribed anti-depressants, subsequently ceased work and took overdoses. Her inpatient treatment included multiple electro-convulsive therapy (ECT) treatments;(k)she described constant pain and restriction in neck movement, numbness in her neck and right arm, and states she is unable to afford the treatment on her current pension.

Decision

Reasons for decision

The evidence demonstrates to my satisfaction that what was once, and perhaps not continually, one or more ‘lesser’ forms of psychiatric condition transformed into a more serious psychiatric condition. It is more serious because it is of a distinctly different character to her prior condition and because, on the evidence, it remains intractable. While DJVD persevered in her employment for many years after treatment for anxiety, she was, ultimately, unable to continue in employment following the development of her current condition. I have accepted that DJVD was vulnerable to just this kind of development. Nonetheless, taking into account all of the relevant considerations, I find that DJVD’s psychiatric condition was contributed to, to a significant degree, by her employment.DECISION For the reasons given above the Tribunal sets and aside the decision under review dated 6 December 2017 and in substitution decides as follows:(a)from the close of business 13 September 2017, DJVD is no longer entitled to compensation in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 arising from the condition aggravation of neuralgia, neuritis, and radiculitis, unspecified (right), aggravation of degeneration of intervertebral disc (right), and aggravation of intervertebral disc disorder – cervical region (right); (b)from the close of business 13 September 2017 to the present date and at the present date, DJVD continues to suffer from the effects of Major Depressive Disorder and is entitled to compensation under s 16 and s 20 of the Safety, Rehabilitation and Compensation Act 1988; and(c)directs that within 14 days of the date of this decision each party may apply to the Tribunal for orders in relation to costs and, if not agreed, either party may apply to the Tribunal for the costs to be taxed.

Ratio Decidendi

Legal Principle Established

In reply, DJVD’s representative emphasised that her psychiatric condition was a consequential injury which was relevant to issues of causation. With respect to the perpetuating nature of her psychiatric condition it was submitted that Eaves v Blaenclydach Colliery Company Ltd [1909] 2 KB 73 supported the view that mental effects secondary to an injury do not necessarily cease when the physical injury ends. This proposition has been repeated in numerous other decisions including Commonwealth of Australia vKeith Colville Smith [1989] FCA 189 at [16]-[17]. CONSIDERATIONSPhysical conditions As noted, the second claim arising from the 2009 incident with the box was accepted as an aggravation of an earlier accepted claim. Comcare accepted in August 2002 that DJVD experienced an intervertebral disc disorder of the right side of the cervical region (T14/71). In July 2010 Comcare accepted DJVD had experienced: aggravation of neuralgia, neuritis, radiculitis, unspecified, on the right side; aggravation of degenerative right intervertebral disc, right; and, aggravation of intervertebral disc disorder, cervical, right. In between the two conditions being accepted, DJVD underwent a very significant amount of treatment for her physical complaints including a shoulder condition, for which liability was not accepted by Comcare. Relatively close to the first claim it appears that the nature of DJVD’s condition was difficult to diagnose. For example, Dr Gubbay, neurologist, after numerous examinations and treatments between September 2001 and June 2002 (ST1, 3, 6, 7 and 8) concluded in 2002 that her condition ‘probably was basically a type of inflammatory disturbance’ related to her posture (ST8). A comprehensive review by a consultant orthopaedic surgeon resulted in a further diagnosis in May 2005 of a ‘probable’ soft tissue strain in the cervical spine (ST30). While DJVD’s cervical spine is referred to in that 2005 opinion, and in the original determination by Comcare, there was at this time no objective radiological evidence of a problem with the cervical spine. This is apparent, for example, from the summary of radiological material in the reports of Mr Slinger above. The specialist evidence also shows that the one instance of a positive indication of nerve damage in 2001 is best understood as an anomaly. Indeed, DJVD’s treating neurologist determined that it was no longer appropriate to retain responsibility for her treatment (ST7). The absence of nerve entrapment was confirmed by a consultant rheumatologist in early 2003 (ST11). Shortly prior to the second incident, DJVD demonstrated normal responses to nerve conduction tests and Dr Goodheart concluded that the majority of her symptoms remain at the soft tissue level (ST50). In a report from January 2010, Dr Euan Thompson (ST51) determined that it was likely that her symptoms at that time (neck pain and limitation of movement) were due to pinching of a nerve, and that this was related to degenerative change that had occurred between 2005-2009. Mr Slinger’s reporting on the radiology shows there was evidence of nerve impingement in October 2005, and signs of increased degeneration by 2010. I note that in August 2010, a neurosurgeon described DJVD as presenting with ‘non-classical’ symptomatology (ST58).