Dunston and Comcare (Compensation) - [2019] AATA 3772

Dunston and Comcare (Compensation) [2019] AATA 3772 (17 September 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2017/6064, 2018/0214
GENERAL DIVISION  )
Re: Michelle Dunston
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:  Member Richard West
DATE OF CORRIGENDUM:            24 September 2019
PLACE:           Melbourne

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.

Paragraph a. of the Decision is altered to read:
a. The decision of the Review Officer dated 12 January 2018 is set aside and in substitution the Tribunal determines that, on and from 13 December 2017, the Applicant is entitled to compensation benefits under sections 16 and 21 of the Safety Rehabilitation and Compensation Act 1988 in respect of aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome.

Paragraph 57 of the Reasons for Decision is altered to read:
57. Accordingly, the Tribunal sets aside the decision of the Review Officer of 12 January 2018, and in substitution determines that, on and from 13 December 2017, the Applicant is entitled to compensation benefits under ss 16 and 21 of the SRC Act in respect of aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome.

.....................[sgd]..............................................
Member
Division:GENERAL DIVISION
File Numbers:2017/6064 and 2018/0214
Re: Michelle Dunston
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member West
Date:17 September 2019
Place:Melbourne

Application 2018/0214:
a. The decision of the Review Officer dated 13 December 2017 is set aside and in substitution the Tribunal determines that, on and from 13 December 2017, the Applicant is entitled to compensation benefits under sections 16 and 21 of the Safety Rehabilitation and Compensation Act 1988 in respect of aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome.
b. Costs are reserved.

Application 2017/6064 is adjourned.
…………[sgd]…………………..
Member Richard West
Catchwords
COMPENSATION - aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome – entitlement to compensation under ss. 16 and 21 of SRC Act - no present liability - permanent impairment – application of the Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1 and American Medical Association Guides to the Evaluation of Permanent Impairment 5th Edition 2001 – absence of medical evidence to assess degree of impairment.
Legislation
Administrative Appeals Tribunal Act 1975 (C’th)
Safety Rehabilitation and Compensation Act 1988 (C’th)
Cases
DNJN and Comcare [2014] AATA 237
DNJN and Comcare (Compensation) [2015] AATA 928
Prain and Comcare (Compensation) [2016] AATA 459
Hutchinson and Comcare (Compensation) [2018] AATA 4357
Kennedy and Comcare (Compensation) [2018] AATA 1837
Prain v Comcare [2017] FCAFC 143
Plumb v Comcare [2004] AATA 999,
KTKY and Comcare (Compensation) [2019] AATA 1123
Comcare v Wuth [2018] FCAFC 13
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1
American Medical Association Guides to the Evaluation of Permanent Impairment 5th Edition 2001
REASONS FOR DECISION

This matter concerns two applications for review of two decisions of the delegate of the Respondent, which…

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 Dunston and Comcare (Compensation)

Details

AGLC: Dunston and Comcare (Compensation) [2019] AATA 3772
Case: [2019] AATA 3772
Decision Date: 17 September 2019

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against a decision by Comcare to deny liability for ongoing medical expenses and incapacity payments. The Applicant had a pre-existing condition of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (CFS), which had been aggravated by her employment with Centrelink. The core dispute was whether the Applicant continued to suffer from this work-related aggravation of CFS and whether her employment continued to contribute significantly to her condition as at the date of Comcare's decision.

The Administrative Appeals Tribunal (AAT) was required to determine whether the Applicant continued to suffer from the aggravation of her CFS and whether her employment continued to be a significant contributing factor to this condition. A further issue arose regarding the assessment of any permanent impairment, specifically whether the Tribunal could make such an assessment in the absence of sufficient medical evidence and in light of the principles established in *Comcare v Wuth*.

The Tribunal acknowledged its inquisitorial role and its obligation to make the correct and preferable decision. It noted that while the Applicant had a continuing entitlement to compensation for the aggravation of her CFS, the medical evidence did not adequately address the assessment of permanent impairment under section 24(5) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), particularly in light of *Wuth*. The Tribunal referred to *Wuth* for the principle that only a physician may use clinical judgment to assess impairment, and a decision-maker cannot independently compare an unlisted condition with a measurable impairment without expert evidence.

Given the lack of sufficient evidence to assess permanent impairment and the need to provide parties with an opportunity to address this, the Tribunal decided to defer further consideration of the review. It directed that each party be given an opportunity to make submissions on what, if any, further evidence should be tendered regarding the assessment of the degree of permanent impairment. The application was adjourned pending these submissions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In Comcare v Wuth[46] the majority stated, in relation to the reference to clinical judgement in Section 1.5 of the AMA Guide that:In “suggest[ing]” that physicians use clinical judgment, it is plain from the context that the text is not suggesting that others might use clinical judgment, but is rather a suggestion to physicians as to how they might undertake the necessary comparison in situations where no impairment ratings are provided. As such, as Comcare submits, the AMA5 permitted only a physician to use clinical judgment, and did not permit the decision-maker independently in the absence of any expert evidence to compare the unlisted condition with an allegedly similar impairment that was measurable (emphasis added). [46] [2018] FCAFC 13 at [94]-[95] per Perry J., with whom Siopis J. agreed. In these proceedings, the Tribunal is not able to make an assessment of the degree of any permanent impairment it may find relating to the Applicant’s CFS as required by s 24(5) of the SRC Act because it has no medical evidence upon which to make that assessment under either the Comcare Guide or the AMA Guide. In response to this issue the Applicant’s counsel sought to recall Dr Donahue to elicit further evidence on the assessment of the degree of impairment of the Applicant’s CFS. The Tribunal indicated that it would consider whether to allow further evidence to be called, once having considered the other matters raised in the proceedings. Having now determined that the Applicant has a continuing entitlement to compensation in application no. 2018/0214 in respect of the aggravation of the Applicant’s CFS condition, and mindful that there is substantial medical evidence in support of a claim that the Applicant has a permanent impairment, the Tribunal is satisfied that the assessment of the degree of impairment under s 24(5) is a matter which may properly arise in this matter. It is unfortunate that the evidence does not adequately address s 24(5) and the implications of Wuth. Had this situation arisen in judicial proceedings it might be expected that the court would determine the issues on the evidence as presented. However, the Tribunal is not a judicial body. The essential role of the Tribunal is inquisitorial, and it has an obligation to make the correct and preferable decision.[47][47] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. Consistent with this obligation, the Tribunal has decided that it should defer further consideration of the review in application no. 2017/6064 and give each party an opportunity to put submissions on the question of what, if any, further evidence ought be tendered in relation to the assessment of the degree of impairment as required by s.24(5) of the SRC Act. A direction will be issued to that effect. The application no. 2017/6064 is adjourned.

Decision

Reasons for decision

On 13 December 2017, a delegate of the Respondent denied liability for ongoing medical expenses and incapacity payments in respect of the aggravation of CFS, finding that there is no longer a link between your current condition and your Commonwealth employment.[9] That decision was affirmed by a Review Officer on 12 January 2018 (Reviewable Decision).[10] Issues for Determination[9] T17 at p. 29 of 2017/0214.[10] T33 at p. 78 of 2017/0214. The initial findings of the Tribunal, that on and from 23 July 2010 the Applicant suffered from an ailment, namely an aggravation of a pre-existing CFS (Ailment), which was contributed to, to a significant degree, by her employment with Centrelink was not in dispute. The principal issue to be determined in this matter is whether, by the date of the delegate’s decision on 13 December 2017, the Applicant continued to suffer the Ailment and whether the circumstances of her employment continued to contribute to a significant degree to the Ailment. If the answer to these questions is ‘yes’, it is then necessary to consider whether this continues to be the case at the time of the Tribunal’s decision.[11][11] Prain and Comcare (Compensation) [2016] AATA 459 at [43]. It is important to note that the Ailment, as found by the Tribunal in its decision of 2 December 2015, is not CFS itself. The Tribunal found that the Applicant had suffered CFS prior to her employment as a result of a reaction to the drug Roaccutane. This is not disputed by the Applicant. The Ailment found by the Tribunal, and for which compensation was initially provided, was the aggravation of the pre-existing CFS. This finding is confirmed by the medical evidence before the Tribunal in this application.[12][12] See Dr Donahue in Exhibit A4 at [2.1] and Dr Hunter in Exhibit R7 at [3]. It is also not disputed by the Respondent that the Applicant has continued to suffer from CFS since 2010. The Respondent’s submission is that as at 13 December 2017 the Applicant’s work-related aggravation of CFS no longer contributed to her incapacity for work.Background Facts The background facts in this matter are set out in the decision of Deputy President J W Constance of 2 December 2015[13] at paragraphs [8] to [18], as follows:[13] DNJN and Comcare (Compensation) [2015] AATA 928.8. The Applicant grew up in country Victoria. She was a healthy child who enjoyed sports and outdoor activities and at the same time was an excellent student.9. In 1992 the Applicant took a course of Roaccutane, a drug prescribed by her general practitioner for the treatment of acne. Immediately following her taking the drug the Applicant suffered a number of acute symptoms, including mental fatigue, insomnia, sore throat, swollen glands, sinus pain and headache.10. At the time of the onset of these symptoms the Applicant was studying at University. After some time the acute symptoms subsided but the sinus pain and sore glands continued in a mild state. She was able to complete her study and graduate with the Degree of Bachelor of Arts in Criminal Justice Administration. Following graduation the Applicant worked in several jobs.11. In 2003 the Applicant commenced employment with Centrelink. In 2005 she was working in the Fraud Investigation Team when she suffered anxiety and depression arising, in part at least, from the type of investigative work she was undertaking. After some time off work the Applicant was able to continue working and to manage the symptoms of her condition. Her health issues caused her to take substantial, but not excessive, sick leave.12. For part of 2008 the Applicant worked in a claims processing role. As she was experiencing some difficulties in this position she had a fitness for duties examination and was moved into the Disability Processing Team.13. In April 2010 the Applicant took part in a coaching meeting with her team leader, Mr Parisi. A week later she had a discussion with her manager, Mr Barillaro. Following these meetings the Applicant formed the view that she may be made the subject of an unsolicited redundancy notice. A short time later she applied for a position in the Random Sample Team. Her application was successful and she commenced working in that team on 21 June 2010.14. Soon after she commenced in the new position the Applicant’s health deteriorated and she decided that the work she had been undertaking in her previous position in the Disability Processing Team was more suited to her. On 2 August 2010 the Applicant informed her employer that she wished to return to the Disability Processing Team. At about the same time she spoke to the Manager in that team who advised her that there was not a vacancy available for her in the team.15. The person to whom the Applicant spoke on 2 August 2010 was Ms Eyre of the Human Resources Team. Her notes of this conversation read, in part:[The Applicant] rang back the same day and stated the following:She had applied for a permanent position with BI RSS (from Processing at ANC) had been here since late June. She wanted to go back to her previous job and had spoken to staff at ANC who said they needed her because they were understaffed however the Manager says, due to budget constraints, they are not taking on anyone.I explained that this was the case in most areas – they are often not advertising and not filling vacancies as they occur. [The Applicant] asked about being transferred back on medical grounds. I explained this would need to be assessed by the Workplace Health Team and she would need a certificate from her treating doctor. [The Applicant] stated she had a certificate but it had information on it she didn’t want her workplace to see. I suggested she contact the doctor and either ask to have another certificate without that information or make another appt. She advised she had REC leave for 2 weeks at the end of this week so would arrange it then. I am satisfied that this is an accurate record of the conversation which took place.16. On 4 August 2010 the Applicant sent an email to Mr Barillaro which read, in part:Further to my email sent the other day. I would like to advise that I would like to be considered for a compassionate transfer back to DSM. This is due to health reasons. 17. The Applicant was on recreation leave from 4 August 2010 until 23 August 2010. On 16 August 2010, while she was on leave, the Applicant again spoke to Ms Eyre and asked her “how you got on with my transfer”. Ms Eyre again advised the Applicant that she should arrange for a certificate to be issued by her treating doctor and that she should contact her team leader. The Applicant stated that she would do this. She said also that she did not wish to return to her position in the Random Sample Team. 18. The Applicant was not transferred back to the Disability Processing Team. Her employer arranged for her to work away from the Random Sample Team. On 28 July 2011 the Applicant went on leave and has not returned to work since. [She was retired on medical grounds in August 2014].Medical Evidence

Ratio Decidendi

Legal Principle Established

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