DMQM and Comcare (Compensation) - [2021] AATA 4438

DMQM and Comcare (Compensation) [2021] AATA 4438 (26 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/5350 & 2020/7554
Re:DMQM
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:26 November 2021
Place:Adelaide

The decision under review is affirmed.
...........................[Sgnd]..............................
Senior Member J Rau SC

Catchwords
COMPENSATION – whether the injury occurred in the course of employment – herpes simplex virus – whether Applicant included injury on the claim form – whether the Applicant suffers from a disease or a mental injury – whether an injury arises out of or in the course of employment – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Canute [2006] 226 CLR 535
Kelso and Telstra Corporation Ltd [2015] AATA 403
Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1623
MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25
Secondary Materials
World Health Organization, Herpes simplex virus fact sheet, 1 May 2020
REASONS FOR DECISION
Senior Member J Rau SC
26 November 2021
The Applications

The Applicant has two applications for review involving two decisions made by Comcare.
2020/5350:
(a)This application relates to a reviewable decision which was made on 7 July 2020. That decision affirmed a determination dated 9 April 2020. In that determination, Comcare denied liability to pay compensation to the Applicant in relation to her acquisition of “Herpes Simplex Virus (HSV–1)” (HSV) on 12 April 2019, under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
2020/7554:
(a)This application relates to a reviewable decision made on 16 October 2020. That decision affirmed a determination dated 10 August 2020. In that determination, Comcare denied liability to pay compensation to the Applicant in respect of a “psychological injury” claim to have been sustained on 12 April 2019, under section 14 of the SRC Act.
The Hearing for the above two matters was conducted on 8 & 9 November 2021. The Applicant was self-represented, and the Respondent was represented by Sarah Wright of Counsel, Australian Government Solicitor. The Applicant appeared in person at the Tribunal, the Respondent appearing by video-link via Microsoft Teams. The documents that were received by this Tribunal are listed under “Annexure A”.
Background Facts
The Applicant is 41 years of age.
Since 7 January 2000, the Applicant has been employed by Department [A] (the Department).
The Applicant has for some years suffered from Crohn’s disease. She was first diagnosed in 2013. As a result of this, she was on medication which had an immunosuppressive effect from 2013, until late 2019.
On 12 April 2019, the Applicant was involved in helping to prepare food for morning tea at her workplace, when she cut her left index finger with a knife, whilst cutting sausage rolls. Two of her colleagues, Mr X and Ms Y were with her at the time. Mr X took hold of the Applicant’s cut finger and put it in…

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 DMQM and Comcare (Compensation)

Details

AGLC: DMQM and Comcare (Compensation) [2021] AATA 4438
Case: [2021] AATA 4438
Decision Date: 26 November 2021

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against a decision by Comcare. The Applicant, who had been employed by the Department since 2000, suffered from Crohn's disease and had been on immunosuppressive medication. In April 2019, while preparing food at work, she cut her finger. A colleague with a visible cold sore then placed his mouth on her injured finger. The Applicant subsequently sought medical attention, expressing concern about contracting a herpes simplex virus (HSV-1) infection, but the treating doctor ordered tests for HIV and Hepatitis B or C, not HSV-1. The Applicant later developed a mental ailment.

The central legal issues before the Tribunal were whether the Applicant's alleged HSV-1 infection and her subsequent mental ailment constituted an "injury" that arose out of or in the course of her employment, as defined by the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The Tribunal was required to determine if the Applicant had adequately included the alleged injury on her claim form and whether the conditions she suffered from were compensable diseases or mental injuries under the Act.

The Tribunal, presided over by J Rau SM, reasoned that the Applicant had not established that she contracted HSV-1 as a result of the workplace incident. Furthermore, the medical evidence indicated that the treating doctor's decision not to test for HSV-1 was reasonable in the circumstances, given the immediate need to exclude more serious and immediately treatable conditions like HIV and Hepatitis. The Tribunal found that neither the HSV-1 infection nor the Applicant's mental ailment met the criteria for a compensable injury under the SRC Act.

Consequently, the Tribunal affirmed the decision under review, finding that neither the Applicant's HSV-1 infection nor her mental ailment were compensable under the SRC Act.

Orders

Orders of the court

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Background

Background to the litigation

The Hearing for the above two matters was conducted on 8 & 9 November 2021. The Applicant was self-represented, and the Respondent was represented by Sarah Wright of Counsel, Australian Government Solicitor. The Applicant appeared in person at the Tribunal, the Respondent appearing by video-link via Microsoft Teams. The documents that were received by this Tribunal are listed under “Annexure A”. Background Facts The Applicant is 41 years of age. Since 7 January 2000, the Applicant has been employed by Department [A] (the Department). The Applicant has for some years suffered from Crohn’s disease. She was first diagnosed in 2013. As a result of this, she was on medication which had an immunosuppressive effect from 2013, until late 2019. On 12 April 2019, the Applicant was involved in helping to prepare food for morning tea at her workplace, when she cut her left index finger with a knife, whilst cutting sausage rolls. Two of her colleagues, Mr X and Ms Y were with her at the time. Mr X took hold of the Applicant’s cut finger and put it in his mouth. At this time, he had a visible cold sore (HSV-1) around his mouth. This action was not requested by the Applicant and was unwelcome. The Applicant removed her finger from Mr X’s mouth and proceeded to the sink when she ran warm water over her finger. Ms Y then assisted the Applicant to administer a band aid. There is no dispute about these events (the Incident). On 15 April 2019, the Applicant advised her supervisor, Mr Z of the Incident. She expressed to him her concern about the possibility of her having acquired an infection during the Incident. On 16 April 2019, a workplace incident report was prepared by Mr Z.[1] [1] Exhibit 3, p 157. On 17 April 2019, the Applicant consulted a Dr NR at Practice A. Practice A was the health service used by the Department to provide medical services to its employees. It was not the Applicant’s usual general practitioner service. The Applicant invited her supervisor Mr Z to accompany her. The Applicant described the Incident and her concerns about the possibility of having acquired an HSV-1 infection. The Applicant was seen by Dr NR and she specifically drew Dr NR’s attention to her concern about Mr X having an active and obvious cold sore at the time of the Incident. The Applicant requested a blood test to see whether she had acquired such an infection. Dr NR did arrange a blood test, however, this was to test for the presence of HIV and Hepatitis B or C. There was no test for HSV-1. In her subsequent response to a complaint by the Applicant about this, Dr NR said:“By way of explanation for [the Applicant] I can advise that my concern at the time was to exclude any infection by diseases such as HIV and Hepatitis B or C, because the presence of these conditions will require involvement of an infectious disease physician and immediate treatment, and because the conditions are serious and can have a very adverse effect on a patient… I acknowledge that having immunosuppressant treatment for Crohn’s disease may indicate a different approach…”[2] [2] Exhibit 4, email of 13 February 2020 from [Practice A] to Applicant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that neither the Applicant’s HSV-1 infection or the Applicant’s mental ailment are compensable under the SRC Act.Decision The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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