Fiddian and Comcare (Compensation)

Case [2019] AATA 10

Fiddian and Comcare (Compensation) [2019] AATA 10 (8 January 2019)

Division:                  GENERAL DIVISION

File Number(s):      2016/7004

2018/1552

Re:Gemma Fiddian

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:8 January 2019

Place:Canberra

The Tribunal sets aside the first Reviewable Decision dated 18 November 2016 and, in substitution, decides that the Respondent is liable to pay compensation between the date of the indexed injury up until 2 May 2017.

The Tribunal sets aside the second Reviewable Decision dated 23 February 2018 and, in substitution, decides that the Applicant is entitled to incapacity payments for the period 7 November 2016 to 16 December 2016.

..................................................................
Senior Member Linda Kirk

Catchwords

WORKER’S COMPENSATION – ailment or aggravation of ailment – adjustment disorder with anxiety and depressed mood – whether the Applicant’s employment contributed to her ailment to a significant degree – scope of wilful and false representation that an applicant did not previously suffer from a disease – whether nexus between representation and disease the subject of the claim can be established – whether previous representations wilful or false – whether the Applicant’s employment contributed to a significant degree to her ongoing ailment – contribution to ailment from rehabilitation process found to be related to the Applicant’s employment – decisions set aside.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7(7), 14 16, 19

Cases

Anderson and Australian Postal Corporation [2016] AATA 228
Comcare Australia v Porter (1996) 70 FCR 139
Comcare v Power [2015] FCA 1502
Dalton and Comcare [2018] AATA 2923
Federal Broom Company v Semlitch [1964] HCA 34
FWZW and Comcare 2016/4826 (unreported)
Griffiths and Australian Postal Corporation [2017] AATA 1025
Griffiths v Australian Postal Corporation [2018] FCA 520
Havnen and Comcare [2010] AATA 535
Hennessey-Milne and Comcare [2018] AATA 4453
JXTZ and Comcare [2017] AATA 880
Kennedy and Comcare [2015] AATA 334
K & S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518
National Australia Bank Ltd v Georgoulas [2013] FCA 1412
Pettiford v Comcare [2014] AATA 95
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52

Wiegand v Comcare Australia [2002] FCA 1464

REASONS FOR DECISION

Senior Member Linda Kirk

8 January 2019

DECISIONS UNDER REVIEW

Application 2016/7004

  1. Ms Gemma Fiddian (‘the Applicant’) was born in 1985 and commenced employment as a teacher with the ACT Education and Training Directorate in January 2010. On 23 January 2013 the Applicant commenced work as a classroom teacher at the Woden School teaching Year 7/8 classes on a full time basis. The School specialises in the teaching of students with autism spectrum disorder from Year 7 to Year 12.

  2. On 5 May 2014 the Applicant lodged a workers’ compensation claim in respect of ‘situational stress’[1] arising from an incident that occurred at the Woden School on 2 April 2014 (‘the April 2014 incident’).

    [1] T3.

  3. On 8 July 2014, by way of Determination, the Respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the…

Continue reading Fiddian and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Fiddian and Comcare (Compensation) [2019] AATA 10
Case
[2019] AATA 10
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Ms Fiddian, against Comcare regarding a claim for workers' compensation. The dispute centred on whether the Applicant's employment contributed to a significant degree to her adjustment disorder with anxiety and depressed mood, and whether she was entitled to ongoing compensation. The case was heard by Linda Kirk SM.

The court was required to determine several legal issues. These included whether the Applicant suffered an 'ailment' or an 'aggravation' of an ailment for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). Crucially, the court had to ascertain whether the Applicant's employment contributed to a significant degree to her ailment, thereby qualifying it as a 'disease' under s 5B(1) of the SRC Act. Further questions involved whether the ailment was excluded from being an 'injury' under s 5A(1)(a) by reason of s 7(7) of the SRC Act, and whether the Applicant continued to suffer from a disease or aggravation thereof that was significantly contributed to by her employment, leading to a need for medical treatment and incapacity for work.

The Tribunal found that the Applicant suffered from 'adjustment disorder with anxiety and depressed mood', with severe panic attacks being a feature of this condition. It accepted that the April 2014 incident, which involved witnessing a violent assault on a student, was a significant stressor. The Tribunal also acknowledged that the rehabilitation process itself acted as a stressor, reminding the Applicant of the workplace event. The Tribunal set aside the previous decisions of Comcare and found that Comcare was liable to pay compensation from the date of the indexed injury until 2 May 2017, and that the Applicant was entitled to incapacity payments for the period of 7 November 2016 to 16 December 2016.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issues relevant to the determination of both applications are as follows:(a)Did the Applicant suffer an ‘ailment’ or an ‘aggravation’ of an ailment for the purposes of s 4 of the SRC Act?(b)Did the Applicant’s employment contribute, to a significant degree, to her ailment or the aggravation of the ailment such that she has a ‘disease’ under s 5B(1) of the SRC Act?(c)If the Applicant suffered a ‘disease’, is this not an ‘injury’ for the purposes of s 5A(1)(a) of the SRC Act, by reason of s 7(7) of the SRC Act?(d)Does the Applicant continue to suffer from a ‘disease’ or aggravation thereof that was contributed to, to a significant degree, by her employment, and if so:(i)Does the Applicant reasonably require medical treatment as a result of that disease; and(ii)Is the Applicant incapacitated for work in relation to that disease?BACKGROUND AND CLAIMSThe April 2014 incident In a statement dated 6 June 2014,[15] the Applicant described the incident that gave rise to her claimed injury:On 2nd April 2014 there was an incident involving two kids with autism. I was walking to the break room – I was carrying a mug as I was going to have a cup of coffee. I was walking past the deputy principal’s office when I noticed a very large male Year 9 student with autism and known aggression issues who was supposed to be in seclusion chasing a very small female Year 7 student with very profound autism down the hallway towards me.Right outside of the deputy principal’s office the male student knocked the female student to the ground. I don’t know exactly how he got her to the ground – he either pushed her or he tripped her. I was about two meters away. It happened at a T-intersection. I was walking towards the intersection and they came running – they were quiet (sic) noisy and I could hear them – the female was shrieking. When she was on the ground he stomped on her and she kept screaming. I saw him stomp on her about three times. I screamed at him to go back to his isolation room.I managed to help the student to her feet and to walk away from the area. X-rays later showed that she had a tear to the shoulder joint and to the collar bone. I had no idea of this at the time. There were no external injuries that I could see. She was extremely distressed and I could see by the way she was holding her arm that something was wrong with it. Because of her autism she does not speak.I was very distressed. I needed help. I was completely alone as far as support goes. I could see Barbara Drummond on duty through two panes of glass but she was swamped with kids.The same student had stacked me about 12 months earlier. I was his teacher in a history class and I asked him to stop drawing on his desk at which point he stood up, approached me and punched me in the face. Before this he had been a problem and I had tried different strategies with him but nothing worked. After he punched me I had a bit of a meltdown. I think Barbara was teaching next door and she came in and looked after my class. I filled out an incident report. The boy who assaulted me was just moved to another class.[15] T4.1, Statement of the Applicant dated 6 June 2014 [12]-[20].

Evidence

Evidence Before The Court

In her statement dated 22 March 2017 the Applicant described her current condition:I continue to suffer from symptoms arising from my injury, including panic attacks, depressed mood, low energy and frequent nightmares or interrupted sleep.Medical evidenceDr Derek Lovell, Consultant Psychiatrist Dr Derek Lovell examined the Applicant on 20 June 2014 and provided a report to Comcare dated 27 June 2014 in which he diagnosed the Applicant with an ‘adjustment disorder with mixed anxiety and depressed mood’.[53] He noted the Applicant’s ‘history of chronic fatigue syndrome and … of previous depression and counselling with treatment initially with Cipramil when she was in her 20s.’[54] [53] T7, 120-127.[54] T7, 125. Dr Lovell reassessed the Applicant on 16 October 2015 and provided a further report to Comcare of the same date. He confirmed the diagnosis of ‘adjustment disorder with anxiety and depressed mood’ and found that the Applicant’s panic attacks were a feature of this condition.[55] He found that the dissociative episode she experienced at school in August 2015 was ‘a feature of her compensable condition.’[56] Dr Lovell noted she is ‘an oversensitive young woman which renders her vulnerable to heightened distress and arousal.’ [57] He concluded that the Applicant required continued sertraline and ongoing psychological counselling for another three to four months.[58][55] T41, 352, 357.[56] T41, 353.[57] T41, 355.[58] T41, 356. Dr Lovell reassessed the Applicant on 5 May 2017 and provided a further report to Comcare on 16 May 2017.[59] He reviewed the file material in relation to the Applicant, including the clinical records of the University of Canberra Medical Centre, and reported that the Applicant ‘has a pre-existing history of Panic Disorder’ which ‘was present from around 2008’.[60] He noted that ‘[p]anic disorder waxes and wanes over time.’[61] He reported that the Applicant told him she suffered from ‘some low-level anxiety in her 20s’ but she ‘denied ever suffering a panic attack’.[62] [59] R1, Report of Dr Derek Lovell dated 16 May 2017.[60] R1, 8.[61] R1, 8.[62] R1, 5. Dr Lovell noted that the Applicant ‘has a high degree of sensitivity to harm befalling animals or children and is concerned about others witnessing her having a panic attack.’[63] He was of the opinion that the Applicant’s ‘current responses related to an innate personal sensitivity. She now holds the view that working in a school system is unsafe’.[64] In his opinion, her panic attacks in July and August 2016 were ‘not related’ to the April 2014 incident.[65] He found that whereas the Applicant ‘[p]reviously … had an aggravation of panic attacks within the school environment’, she ‘[c]urrently … does not suffer from any psychological condition.’[66] He concluded that ‘the effects of the compensable condition ceased when she won employment at the beginning of 2016 at Campbell High School.’[67] In his view it was reasonable for the Applicant to continue the prescription of sertraline, but further treatment with her psychologist was not reasonable.[68] [63] R1, 7.[64] R1, 7.[65] R1, 7.[66] R1, 7.[67] R1, 8.[68] R1, 8.

Decision

Reasons for decision

Further, the Tribunal accepts the Applicant’s claim that she is entitlement to incapacity payments for the period 7 November 2016 to 16 December 2016DECISIONApplication 2016/7004 The Tribunal sets aside the first Reviewable Decision dated 18 November 2016 and, in substitution, decides that the Respondent is liable to pay compensation between the date of the indexed injury up until 2 May 2017.Application 2018/1552 The Tribunal sets aside the second Reviewable Decision dated 23 February 2018 and, in substitution, decides that the Applicant is entitled to incapacity payments for the period 7 November 2016 to 16 December 2016.

Ratio Decidendi

Legal Principle Established

Dr Oelrichs expressed the view that the specific stressor in the Applicant’s circumstances was the April 2014 incident. She also agreed that the rehabilitation process itself was a stressor for the Applicant as it reminded her of the workplace event.CONSIDERATION AND REASONS(1) What is the ailment suffered by the Applicant? The Respondent contended that all three medical specialists opined that the Applicant suffers from an aggravation of a disease. However they disagreed as to the diagnosis of the disease. The Respondent urged the Tribunal to prefer the diagnosis of the Applicant’s condition made by Dr Lovell, namely ‘panic disorder’, over that made by Dr Oelrichs and Dr Cohen. This is for reason that Dr Lovell was the only practitioner who had the opportunity to consider all relevant materials, including the clinical notes from the University of Canberra Medical Centre, in his own time before providing his supplementary reports.[84][84] Transcript at page 15, lines 5-7. The Applicant contended that the disease suffered by her is that diagnosed by Dr Oelrichs, namely ‘adjustment reaction with mixed emotional features’. This is consistent with the diagnosis of the condition by Dr Cohen of ‘chronic adjustment disorder’ and Dr Lovell’s initial diagnosis of ‘adjustment disorder with mixed anxiety and depressed mood.’ In cross-examination, both Dr Cohen and Dr Oelrichs maintained that they did not depart from their diagnosis of the Applicant’s condition subsequent to being made aware of the clinical notes from the University of Canberra Medical Centre which include a number of references to the Applicant suffering ‘panic attacks’ and include an entry by Dr Weekes of ‘has a panic disorder’. Both doctors agreed that notwithstanding this clinical history, their diagnosis remained unchanged, that is ‘adjustment disorder with anxiety and depressed mood’ (Dr Oelrichs) and ‘chronic adjustment disorder’ (Dr Cohen). In making its finding in relation to the ‘ailment’ suffered by the Applicant, the Tribunal has had regard to the consistent and unwavering evidence of the Applicant in her written statements and oral evidence that the symptoms she suffered post the April 2014 incident were unlike any others she had ever experienced. She freely admitted that she has long suffered from an anxiety disorder, and that on more than one occasion she felt anxious and ‘panicky’ in the school environment when placed in a tense situation such as when the child went missing. However she steadfastly maintained that the debilitating physical symptoms she experienced following the April 2014 incident were completely different from the feelings of anxiety that she had previously suffered. The Tribunal finds on the basis of the evidence before it, including the reports and oral evidence of the medical specialists and the Applicant’s written statements and oral evidence, that the ‘ailment’ suffered by the Applicant is ‘adjustment disorder with anxiety and depressed mood’. The severe and debilitating panic attacks the Applicant suffered post the April 2014 incident are, as Dr Lovell opined in October 2015, and as noted by Dr Oelrichs in May 2017, a feature or symptom of this condition.