DVFW and Comcare (Compensation) - [2020] AATA 2055

DVFW and Comcare (Compensation) [2020] AATA 2055 (1 July 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2018/3869,
GENERAL DIVISION  )               2018/4369
Re: DVFW
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:  Mrs J C Kelly, Senior Member
DATE OF CORRIGENDUM:            9 July 2020
PLACE:           Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application such that:
1.at paragraph 20, all occurrences of “his” and “he” are replaced by “her” and “she”, respectively; and
2.at paragraph 21, all occurrences of “him”, “his” and “he” are replaced by “her”, “her” and “she”, respectively.

........................[sgd]...........................................
Mrs J C Kelly, Senior Member
Division:GENERAL DIVISION
File Number(s): 2018/3869
2018/4369

Re:DVFW
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:1 July 2020
Place:Sydney

In proceedings 2018/3869, the reviewable decision dated 4 June 2018 is set aside and in substitution the decision is made that Duromine is reasonable medical treatment obtained in relation to the Applicant’s accepted injury, pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
In proceedings 2018/4369, the reviewable decision dated 23 July 2018 is affirmed.
.............. ...[sgd].......................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Applicant employed by Commonwealth government department – Applicant has an accepted claim in 2016 of aggravation of borderline personality disorder – whether Duromine is reasonable medical treatment obtained in relation to the Applicant’s accepted injury – whether the Respondent is liable to pay for the medical treatment (Duromine (phentermine), an appetite suppressant) in respect of previously accepted liability – Applicant claims that her normal weekly earnings (NWE) should be calculated according to full-time hours of 37.5 and not part-time hours of 29.5 – in proceeding 2018/3869 the reviewable decision is set aside and substituted and in proceedings 2018/4369 the reviewable decision is affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 8, 9, 14, 16
CASES
Comcare v Nicolas (2014) 225 FCR 369
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
1 July 2020
INTRODUCTION

On 22 September 2016, Comcare, the Respondent, determined that it was liable to pay compensation to the Applicant, DVFW, in respect of aggravation of borderline personality disorder, (the accepted injury), pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), with a date of injury of 8 November 2012.[1]
[1] Exhibit R3.
There are two proceedings before the Tribunal. The Applicant represented herself.
In proceedings 2018/3869, the Applicant contends that the Respondent is liable to pay for the medication Duromine (phentermine), an appetite suppressant. The question is whether Duromine is reasonable medical treatment obtained in relation to the Applicant’s accepted injury, pursuant to section 16 of the Act. The reviewable decision is dated 4 June 2018.
In proceedings 2018/4369, the Applicant contends that her normal weekly earnings (NWE) should be calculated according to full-time hours of 37.5 and not part-time hours of 29.5.…

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 DVFW and Comcare (Compensation)

Details

AGLC: DVFW and Comcare (Compensation) [2020] AATA 2055
Case: [2020] AATA 2055
Decision Date: 1 July 2020

CaseChat Overview and Summary

This matter concerned an applicant employed by a Commonwealth government department who had an accepted claim for aggravation of borderline personality disorder. The dispute involved two primary issues: whether Duromine was reasonable medical treatment for the applicant's accepted injury, and whether the applicant's normal weekly earnings (NWE) should be calculated based on full-time hours of 37.5 or part-time hours of 29.5. The proceedings were heard by Mrs J C Kelly, Senior Member.

The court was required to determine two legal issues. Firstly, it needed to ascertain if Duromine, an appetite suppressant prescribed to counter weight gain from anti-depressant medications, constituted reasonable medical treatment in relation to the applicant's accepted injury under section 16 of the relevant Act. Secondly, the court had to decide the correct basis for calculating the applicant's normal weekly earnings, specifically whether to use 37.5 hours (full-time) or 29.5 hours (part-time), by applying the provisions of sections 8 and 9 of the Act.

In relation to the claim for Duromine, the Senior Member found that it was reasonable medical treatment obtained in relation to the applicant's accepted injury, setting aside the reviewable decision that had rejected reimbursement for this medication. Regarding the calculation of normal weekly earnings, the Senior Member considered the various subsections of section 8 of the Act, which outline the methodology for calculating NWE, taking into account average hours worked, hourly rate of pay, and allowances. After reviewing the evidence, the Senior Member concluded that the applicant's normal hours of work were 29.5, affirming the reviewable decision on this point.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In proceedings 2018/4369, the Applicant contends that her normal weekly earnings (NWE) should be calculated according to full-time hours of 37.5 and not part-time hours of 29.5. The relevant provisions of the Act are sections 8 and 9. The reviewable decision is dated 23 July 2018.BACKGROUND The Applicant was born in 1976. She commenced employment with a Commonwealth government Department (the Department) in March 2006. The Applicant’s fourth child was born in October 2011. On 6 June 2012 the Applicant sustained an injury to one of her fingers while on maternity leave. She underwent surgery and then wore a cast for six weeks. On 9 August 2012 she returned to work on restricted duties. A rehabilitation provider was assigned to help the Applicant return to work. The Respondent’s liability pursuant to section 14 of the Act arose from what the Applicant described as harassment and unfair treatment by her managers when she did not recover from her finger injury as quickly as anticipated and was unable to do the duties she was expected to. That occurred particularly from around November 2012 to February 2013. The Applicant ceased work in February 2013. She returned to work at a different location in December 2013. She has not worked since 3 February 2014.[2]Duromine – proceedings 2018/3869[2] Letter dated 15 August 2018 from the Rehabilitation Case Manager, People Services to Allianz; Exhibit A18. Duromine (Phentermine) is an appetite suppressant. The Applicant’s case is that a side effect of the anti-depressant medications she has taken is weight gain and Duromine is reasonable treatment because it counters that. The Respondent argued that the Tribunal could not be affirmatively satisfied that the Applicant was entitled to receive the benefit of payment for Duromine. It pointed to the Applicant’s 20 kg increase in weight from November 2013 to July 2015 while taking Efexor and Duromine to demonstrate that it did not result in weight loss. The reviewable decision arose from the Applicant’s 1 February 2018 request for reimbursement for nine medications. Only Duromine and Phentermine were rejected. The Respondent did not press the argument at the hearing that it was not liable to pay for Duromine because the Applicant does not continue to suffer the effects of her compensable injury. The Applicant has been prescribed various anti-depressant medications since 2012. The following evidence is derived from the Applicant’s Pharmaceutical Benefit Records.[3] The Applicant’s then general practitioner prescribed Venlafaxine (Efexor) for the first time on 21 March 2013. On 24 July 2015 the same general practitioner prescribed Escitalopram (Lexapro). On 12 April 2016, the Applicant’s psychiatrist, Dr C, prescribed Duloxetine (Cymbalta) and changed the prescription to Fluoxetine (Lovan, Prozac) on 12 October 2016. [3] Exhibit R5. The Applicant’s then general practitioner first prescribed Duromine for the Applicant on 11 November 2013.[4] [4] ST28, p. 97, proceedings (2018/3869) & (2018/4369).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The only issue in relation to the calculation of NWE was the Applicant’s hours of work. For the reasons given above, I find that the Applicant’s normal hours of work were 29.5. DECISIONS In proceedings 2018/3869, the reviewable decision dated 4 June 2018 is set aside and in substitution the decision is made that Duromine is reasonable medical treatment obtained in relation to the Applicant’s accepted injury, pursuant to section 16 of the Act. In proceedings 2018/4369, the reviewable decision dated 23 July 2018 is affirmed.

Ratio Decidendi

Legal Principle Established

The third was that she was denied appropriate arrangements relating to breast feeding. Consideration of NWE The Applicant feels aggrieved about her treatment at work for various reasons, including that she believes her manager and rehabilitation provider were pushing her to return to duties before she was fit to do so and that the rehabilitation provider was pressing the Applicant’s doctors to certify her as fit for duties for which she was not fit. Her evidence and submissions were extensive and ranged over the period of her employment. Section 9 of the Act requires consideration of the Applicant’s earnings for the period of two weeks before the date of injury, that is, before 8 November 2012. Subsection 8(1) of the Act sets out how to calculate NWE. It provides for various inputs, depending on the Applicant’s circumstances. It takes into account the average number of hours worked in each week (NH), the employee’s average hourly ordinary time rate of pay (RP), and the average allowance payable to the employee in each week (A).[9] The formula is:{NH x RP} + A[9] Subsection 8(1) of the Act. Subsection 8(2) of the Act provides for overtime on a regular basis to be included in the calculation. Subsection 8(3) of the Act includes any other earnings if the Applicant is working part-time for the Commonwealth or a licensed corporation. Subsections 8(4) and (5) of the Act provide a means of calculation where, because of the shortness of period of employment, it is impractical or unfair to calculate the NWE according to subsections 8(1) and (2). The Applicant referred to subsection 8(6) of the Act which provides:Subject to this section, if the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation at the date of the injury is increased, or would have been increased if the employee had continued in that employment, because of: (a) the attainment by the employee of a particular age; (b) the completion by the employee of a particular period of service; or (c) the receipt by the employee of an increase in salary, wages or pay by wayof an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment;the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased, or would have been increased, as the case may be. Subsection 8(7) of the Act provides for an increase in the minimum amount per week to take into account the promotion of an ongoing employee. Subsection 8(8) of the Act modifies the calculation in the case of certain persons so that it is determined according to the amount per week the employee would have been able to earn at the date of injury, including regular overtime, “if he or she had engaged in suitable paid employment”. Subsections 8(9) to 8(9G) of the Act provide for indexation to be applied to the calculation of NWE in various circumstances.