Fittock and Comcare (Compensation) - [2022] AATA 72

Fittock and Comcare (Compensation) [2022] AATA 72 (21 January 2022)
Division:GENERAL DIVISION
File Number:2020/6273
Re:Kylie Fittock
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:21 January 2022
Place:Brisbane

The Tribunal affirms the decision under review.
............[SGD].................................
Member D Mitchell
CATCHWORD
COMPENSATION – claim for aggravation of previously accepted condition – aggravation of adjustment disorder with mixed anxiety and depressive symptoms – medical evidence outlining no psychological condition – Mooi principles – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Mooi (1996) 69 FCR 439
Kelly and Comcare (Compensation) [2021] AATA 2575
Richardson and Comcare [2010] AATA 245
REASONS FOR DECISION
Member D Mitchell
21 January 2022
INTRODUCTION

Ms Kylie Fittock (the Applicant
) is seeking review of a decision of the Respondent dated

29 September 2020.[1]
[1] Exhibit 1, Electronic Hearing Book, R9, T Documents, T36, pages 445-446, Reviewable Decision; T34, pages 441-443, Decision Letter and T33, pages 428-440, Reasons for reviewable decision.
The reviewable decision[2] affirmed a determination dated 24 August 2020[3] that liability did not exist under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for a claimed “aggravation of adjustment disorder with mixed anxiety and depressive symptoms” condition, stated to have been first noticed on 30 May 2020.[4]
[2]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T36, pages 445-446, Reviewable Decision.
[3]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T26-T26.2, pages 384-399, Email attaching the Determination Decision and reasons for decision.
[4]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T10, pages 157-165, Workers’ Compensation Claim.
CLAIMS HISTORY
Since 2003, the Applicant has been employed by Services Australia (as it is now known) (the Agency) and was, at all material times, an APS4 Service Officer.[5]
[5] Exhibit 1, Electronic Hearing Book, R9, T Documents, T10, page 164, Worker’s Compensation Claim.
The Applicant previously claimed workers’ compensation for a depressive illness. The Applicant subsequently sought review of the Respondent’s decision to deny liability for the claimed condition. The claim was settled by decision of the Tribunal, issued as a result of the agreement of the parties, finding that liability was accepted for “aggravation of an adjustment disorder” sustained on 21 April 2017. The Tribunal noted that the parties agreed that the Respondent was liable to pay compensation to the Applicant, under sections 16 and 19 of the SRC Act, from 21 April 2017 to 30 September 2019.[6]
[6] Exhibit 1, Electronic Hearing Book, R9, T Documents, T14.4, pages 188-189, Decision of the Administrative Appeals Tribunal accepting liability for an aggravation of an adjustment disorder.
In implementing that decision, the Respondent made further decisions in relation to the extent of the Applicant’s entitlements in relation to reimbursement for medical expenses and incapacity payments for time off work. As a result, the Applicant made further applications for review of the Respondent’s decisions to the Tribunal.
The Applicant had various periods of time off work…

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 Fittock and Comcare (Compensation)

Details

AGLC: Fittock and Comcare (Compensation) [2022] AATA 72
Case: [2022] AATA 72
Decision Date: 21 January 2022

CaseChat Overview and Summary

This matter came before the Administrative Appeals Tribunal concerning a claim for workers' compensation by Ms Fittock against Comcare. Ms Fittock sought compensation for a psychological injury, alleging it arose from bullying and unfair treatment by her management and team leaders within Services Australia. She contended that a toxic workplace culture, originating from senior management, contributed to her ongoing treatment for anxiety and depression.

The primary legal issue before the Tribunal was whether Ms Fittock's psychological condition was a compensable injury under the relevant legislation, specifically whether it was caused by her employment. This involved assessing the applicant's evidence regarding workplace stressors against the medical opinions provided, particularly that of Dr Lovell, whose assessment Ms Fittock challenged as biased and based on misleading information provided by Comcare.

The Tribunal acknowledged the lay evidence presented by Ms Fittock, which consistently described her experiences of being closely monitored and unfairly reprimanded by her team leader, leading to significant stress. Ms Fittock asserted that her ongoing treatment for anxiety and depression since April 2017 was directly linked to her workplace, including a specific incident on 30 May 2020 which she attributed to workplace stress. She disputed Dr Lovell's opinion, suggesting his assessment was flawed due to inaccurate information supplied by Comcare, and maintained that her medical records were incorrectly recorded regarding the cause of the 30 May 2020 incident. The Tribunal found it unnecessary to detail the lay evidence given its determination on the primary issue.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

To that extent, the Tribunal acknowledges both the written and oral evidence of each of the lay witnesses put before it. The Tribunal notes, however, that given its finding in relation to the primary issue, it is unnecessary to reproduce that evidence in this decision.CONSIDERATION Throughout the review process of the Applicant’s present claim for workers’ compensation, the Applicant has provided a number of written statements and timelines that outline her experiences in the workplace. The Applicant consistently characterised those experiences as constituting her being bullied and watched by her team leader (with reference made to both Ms King and previous team leaders). The Applicant, also, consistently reported enjoying her work and engaging with her colleagues; however, she struggled with management and how she perceived that they treat her unfairly. At Hearing, the Applicant told the Tribunal that:Services Australia do not know how to deal with me because I am resilient and unlike others, are continuing to attempt to return to work. Leadership have me labelled as a troublemaker and difficult to manage. The toxic culture is ingrained and comes from the very top of the management ladder. Team leaders are rewarded for continuing to cultivate this culture. At Hearing, the Applicant questioned why she would not have a claimable condition if she is still being treated for anxiety and depression. She told the Tribunal she does not agree with the opinion of Dr Lovell. The Applicant asserted that her assessment with Dr Lovell was 30 minutes in duration. In the Applicant’s written opening submissions (of which, she handed up at Hearing), she stated:Dr Lovell’s assessment is bias towards Comcare and this is by no fault of his own. I am still unsure if it is Comcare’s incompetence or if it is intentionally misleading that Dr Lovell was provided with previous untrue information. This information I had already proven to be false, and Dr Lovell can only go on what he has been given. The misleading information is to steer the assessment in favour of a Comcare rejection. Comcare got what they paid for. How is it now my issue that Dr Lovell has failed to identify my mental health conditions that I have and remain to be treated for since April 2017? Comcare from the get-go were steering Dr Lovell down a fabricated path. The Applicant told the Tribunal she attributes the incident, where she passed out on 30 May 2020, to her workplace, as, she contended that work was the only thing that stresses her out, and at that time she was:…being constantly under the thumb, or looked at through every second of my movement by my team leader. And she would approach me and chastise me in front of others. And there was no reason for her to be on my case, my performance was good, everything was good, there was no – other than she seemed to have an understanding that I was trouble and she had to do that. On cross-examination, when asked whether she agreed with Dr Lovell’s opinion that, the GP notes which indicated that the medical attendant did not attribute the incident on 30 May 2020 to work-related stress, said she did not agree and that it must have been incorrectly recorded at the medical practice.