Dunkerley v Comcare

Case [2015] FCA 392

FEDERAL COURT OF AUSTRALIA

Dunkerley v Comcare [2015] FCA 392

Citation: Dunkerley v Comcare [2015] FCA 392
Appeal from: Dunkerley and Comcare [2014] AATA 381
Parties: ULLA-MAIJA DUNKERLEY v COMCARE
File number: ACD 45 of 2014
Judge: PERRAM J
Date of judgment: 27 April 2015
Catchwords:

ADMINISTRATIVE LAW – whether any errors of law disclosed by Tribunal’s preference of evidence of medical opinion to medical certificates accompanying claim form or Tribunal’s finding that a prior injury no longer relevant

PRACTICE AND PROCEDURE – relevance of model litigant obligations

Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(2), 54, 57
Cases cited: Croker v Commonwealth [2011] FCAFC 25
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Tarrant v Australian Securities and Investments Commission (2015) 317 ALR 328
Wiegand v Comcare Australia [2002] FCA 1464
Date of hearing: 13 April 2015
Place: Canberra
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 28
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: Mr P Woulfe
Solicitor for the Respondent: DibbsBarker

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 45 of 2014
BETWEEN:

ULLA-MAIJA DUNKERLEY
Applicant
AND:

COMCARE
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

27 APRIL 2015

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 45 of 2014
BETWEEN:

ULLA-MAIJA DUNKERLEY
Applicant
AND:

COMCARE
Respondent

JUDGE:

PERRAM J

DATE:

27 APRIL 2015

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

I.    Introduction

  1. This is an appeal from orders made by the Administrative Appeals Tribunal (‘the Tribunal’) on 18 June 2014.  The Tribunal dismissed Ms Dunkerley’s application for review of an earlier decision made by Comcare.  That decision was that Ms Dunkerley was not entitled to compensation for medical treatment expenses or incapacity for work under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’). The injury in question occurred in October 2007. Both Comcare and the Tribunal concluded that the injury had resolved by March 2009 and, in any event, had been completely supplanted by a non-compensable injury suffered in July 2009. It is from the Tribunal’s decision to that effect that Ms Dunkerley now appeals.

  2. The appeal is without merit and will be dismissed with costs.

    II.    Facts

  3. Ms Dunkerley was born in 1959. She joined the former Department of Education, Science and Training (‘DEST’) as a project officer at the APS6 level in March 2007. Whilst employed with DEST she suffered an injury which was ultimately accepted by Comcare to have been contributed to by her employment with DEST to a significant degree (one of the statutory requirements). That injury consisted of a psychiatric condition referred to as an adjustment disorder with anxious mood. Comcare accepted that this was a compensable ailment under the Act from 24 October 2007.

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AGLC
Dunkerley v Comcare [2015] FCA 392
Case
[2015] FCA 392
Decision Date

CaseChat Overview and Summary

Dunkerley v Comcare is a case concerning the dispute over the acceptance and assessment of a compensable injury under the Public Sector Superannuation (Commonwealth Employees) Act 1991. The appellant, Ms Dunkerley, appealed against the decision of the Administrative Appeals Tribunal (AAT), which had dismissed her application for compensation. Ms Dunkerley claimed that her psychiatric condition, an adjustment disorder with an anxious mood, was exacerbated by a perceived bullying incident at work, which she attributed to her former employer, the Department of Education, Science and Training (DEST). Comcare, the respondent, accepted the injury as compensable but contested the extent of its ongoing impact.

The legal issues in the case primarily revolved around the interpretation and application of the statutory requirements for compensation under the Act. Ms Dunkerley argued that the AAT erred by not considering the medical certificates accompanying her claim form and by preferring the opinion of other medical practitioners over her own. She also contended that Comcare's failure to clarify her case constituted a breach of its obligations as a model litigant. The court was tasked with determining whether the AAT had any errors in law and if Ms Dunkerley's arguments had any merit.

The court found that Ms Dunkerley's contentions lacked merit. It clarified that Comcare is not bound by the medical certificates provided by claimants and has the discretion to reassess a claim based on new evidence. The court held that the AAT was entitled to consider the opinions of other medical practitioners and that there was no legal basis for the AAT to be compelled to accept Ms Dunkerley's medical evidence. Furthermore, the court noted that it lacked jurisdiction to review the AAT's findings of fact unless there was no evidence to support them. Therefore, the appeal was dismissed with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The appeal is without merit and will be dismissed with costs.II. Facts Ms Dunkerley was born in 1959. She joined the former Department of Education, Science and Training (‘DEST’) as a project officer at the APS6 level in March 2007. Whilst employed with DEST she suffered an injury which was ultimately accepted by Comcare to have been contributed to by her employment with DEST to a significant degree (one of the statutory requirements). That injury consisted of a psychiatric condition referred to as an adjustment disorder with anxious mood. Comcare accepted that this was a compensable ailment under the Act from 24 October 2007. Whilst the factual record is not entirely clear about this, it appears that Ms Dunkerley’s adjustment disorder came about in circumstances relating to her perception that she was being bullied at DEST. This was what she told me during the course of the hearing. I should say, out of fairness to Comcare, that its counsel submitted that the original claim arose not from actual bullying but from Ms Dunkerley’s perception that she was being bullied: cf. Wiegand v Comcare Australia [2002] FCA 1464 per Von Doussa J. It is not necessary for the purposes of these reasons to determine whether the bullying was actual or merely genuinely perceived. The important aspect of the matter is that Comcare accepted that it had given rise to a genuine ailment which was compensable under the Act. It then appears that Ms Dunkerley was deemed fit by her treating general practitioner to return to work in a different area of DEST on around 4 December 2007. However, it was not possible to find such a position and unfortunately she remained off work until May 2008 when she was transferred from DEST to the Department of Industry, Innovation, Science, Research and Tertiary Education (‘DIISR’). After several months in a temporary role she began working there in a full-time APS6 position on 22 January 2009. Around a month later, Ms Dunkerley was seen by a psychiatrist, Dr George, and his report of that consultation refers to Ms Dunkerley as being very happy in her work environment. He found that she presented with no psychiatric diagnosis. He concluded that she had a full capacity to work. This statement by Dr George would later be used by Comcare as evidence that her earlier adjustment disorder with anxious mood had resolved by March 2009. Dr George had previously diagnosed Ms Dunkerley as suffering from the adjustment disorder which had felled her following the events at DEST in October 2007. In the Tribunal below, Ms Dunkerley disputed Dr George’s conclusions maintaining that when she saw him in March 2009 she was not completely well and that the adjustment disorder was affecting her then just as surely as it was affecting her now. I will return a little later in these reasons to the way in which the Tribunal resolved that issue. It is now necessary to note a matter of chronology. Although it is true that Comcare eventually accepted liability for the adjustment disorder Ms Dunkerley had suffered around 24 October 2007 at DEST, it did not do so until 16 June 2009; that is to say, not until after she had started in her new position at DIISR (on 22 January 2009) and not until after she had seen Dr George on 2 March 2009 when he diagnosed her as suffering from no psychiatric condition. Thus at the time that she saw Dr George, Comcare was still disputing its liability for the events which had occurred at DEST in October 2007.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ms Dunkerley’s contentions were as follows:(a)the medical certificates she had obtained at the time of the incident with Mr Schwager had all referred to the condition she had as an exacerbation of the pre-existing 2007 adjustment disorder. Once those certificates were provided to Comcare neither it nor, subsequently, the Tribunal were permitted to approach the matter on the basis that the earlier 2007 injury was not relevant;(b)the Tribunal had used the opinion of doctors other than those who had issued the certificates attached to her claim form, and in particular that of Dr George of 10 March 2009, to arrive at the view that the 2007 injury was not causing any ongoing disability. This, according to Ms Dunkerley, was not permitted under the Act; and(c)the hearing before the Tribunal had involved a miscarriage of justice, in that Comcare had failed to clarify for the Tribunal what her case was. This was said to be a breach of Comcare’s obligations as a model litigant.IV. Consideration This appeal is devoid of merit. As to contention (a), the idea that Comcare and, thereafter, the Tribunal are bound by the medical certificates she obtained on the occurrence of the events involving Mr Schwager is without substance. True it is that most claims under the Act must be accompanied by a certificate issued by a medical practitioner. Section 54 says this. But nowhere does the Act say that Comcare must accept the views expressed in that certificate. Indeed, the power of Comcare to require a claimant to be assessed by another medical practitioner under s 57 shows this contention is hopeless. During the hearing of the appeal I was briefly troubled by the Tribunal’s finding that the injury caused by the events surrounding Mr Schwager in 2009 had simply supplanted the relevance of the 2007 injury and its earlier conclusion in the first proceeding that that injury was an exacerbation of the 2007 injury. These appeared to be inconsistent conclusions. However, a review of the full record shows that Comcare was concerned, in light of Dr George’s report of 10 March 2009, that Ms Dunkerley’s condition no longer existed. There is no doubt Comcare is entitled to take the course of reassessing a claim if fresh evidence suggests the injury is no longer extant: Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at 273-274 [57] and [59] (FC). I do not accept Comcare’s submission that there was no inconsistency but, in light of Telstra v Hannaford, this does not matter. As to contention (b), in effect two propositions are involved. The first is that the Tribunal had to accept her medical evidence as a matter of law. The second is that the Tribunal’s finding of fact, that the 2007 injury no longer existed, should be reviewed. The first point is effectively the same as the argument which I have rejected above. The second would only be available as a ground of review if there had been no evidence to support the Tribunal’s finding about the ongoing role of the 2007 injury in Ms Dunkerley’s problems because, as has often enough been remarked, this Court has no jurisdiction to review the Tribunal’s findings of fact.