Flood and Comcare (Compensation) - [2020] AATA 2152

Flood and Comcare (Compensation) [2020] AATA 2152 (8 July 2020)
Division:GENERAL DIVISION
File Numbers: 2017/3139, 2017/3141, 2017/6347

Re:Leanne Flood
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms S Taglieri SC, Member
Date:08 July 2020
Place:Hobart

The decision made by the Respondent on 16 October 2017 (application no. 2017/6347) is set aside and in substitution the Tribunal decides that:
1.The Respondent is liable to continue paying compensation pursuant to the Act in respect of a Somatic Symptom Disorder (SSD) suffered by the Applicant on 15 September 2009.

The reviewable decision made by the Respondent on 24 March 2017 (application no. 2017/3139) is affirmed for reasons other than those of the Respondent.
The reviewable decision made by the Respondent on 21 April 2017 (application no. 2017/3141) is affirmed for reasons other than those of the Respondent.
................................[sgd]......................................
Ms S Taglieri SC, Member
COMPENSATION – accepted liability for “respiratory conditions due to external agents” and secondary “adjustment disorder” – the applicant does not suffer “multiple chemical sensitivity” but suffers “somatic symptoms disorder” – was there continuing incapacity for work – was there a need for reasonable treatment – entitlement to compensation for permanent impairment and non-economic loss.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Comcare v Amorebieta [1996] FCA 1438
Comcare v Fiedler [2001] FCA 1810
Comcare v Nichols [1999] FCA 209
Commonwealth v Borg (1991) 20 AAR 299
Military Compensation Commission v May [2016] HCA 19
Morton and Comcare [2005] AATA 318
Prain v Comcare [2017] FCAFC 143
Quinn and Australian Postal Corporation, Re (1992) 15 AAR 519
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
Secondary Materials
Guide to Assessment of Permanent Impairment
REASONS FOR DECISION
Ms S Taglieri SC, Member
08 July 2020
BACKGROUND

The applications for review before the Tribunal involve the Applicant’s entitlements to receive compensation for a medical condition, which the parties referred to as “multiple chemical sensitivity” (MCS) for the purpose of the proceedings.
The Applicant had been an employee of the Respondent and worked at its Centrelink office in Devonport, when in 2009 she reported experiencing various physical symptoms and other effects interfering with her capacity for work.
Following various attempts to return to work in different settings, the Applicant was retired on the grounds of invalidity and she has not worked since December 2014.[1]
[1] T129, T Documents, pp 566–567.
The Applicant received payments of compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the Act) for many years. The Respondent had accepted liability under the Act for a physical respiratory condition, said to have been suffered in around December 2009 due to environmental factors in the workplace and a secondary psychological condition.
On or about 15 June 2016 the Applicant made a claim under the Act for compensation relating to permanent impairment and non-economic loss (the Claims).[2]
[2] T139, T Documents, pp 593–620.
On 17 January 2017 the Respondent made determinations rejecting the Applicant’s Claims for permanent impairment and non-economic loss.[3]

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 Flood and Comcare (Compensation)

Details

AGLC: Flood and Comcare (Compensation) [2020] AATA 2152
Case: [2020] AATA 2152
Decision Date: 8 July 2020

CaseChat Overview and Summary

This matter concerned an application by an applicant against Comcare, heard by Ms S Taglieri SC, Member, of the Administrative Appeals Tribunal. The dispute centred on whether the applicant continued to suffer from a condition for which Comcare had accepted liability, and if so, whether she was entitled to ongoing compensation for incapacity, medical treatment, permanent impairment, and non-economic loss. Comcare had previously accepted liability for certain conditions until 16 October 2017, and the core of the proceedings involved determining the applicant's status after this date.

The Tribunal was required to determine several key issues. Firstly, it needed to identify the specific conditions for which Comcare had accepted liability up to 16 October 2017. Secondly, it had to ascertain whether the applicant continued to suffer from these conditions after that date, and if so, whether this resulted in a continuing incapacity for work or a need for reasonable medical treatment. Finally, the Tribunal was tasked with assessing whether the applicant was entitled to compensation for permanent impairment and non-economic loss if she continued to suffer from the identified conditions post-16 October 2017.

In reaching its decision, the Tribunal considered written and oral submissions from both parties, along with extensive documentary evidence, including expert medical reports from a Consultant Physician and a Consultant Psychiatrist, and the applicant's own evidence. The Tribunal accepted the applicant's condition as a Somatoform Disorder (SSD) based on the evidence and the principles in *Telstra Corporation Limited v Hannaford*. Crucially, the Tribunal found that the applicant continued to suffer the effects of SSD after 16 October 2017, preferring the opinions of Dr Reid over those of Dr Chow regarding ongoing causation. The Tribunal also concluded that the applicant had not been consciously dishonest in her portrayal of symptoms, attributing any inconsistencies to the nature of SSD itself. The Tribunal noted that while the respondent did not carry a strict onus of proof, it needed sufficient material to be persuaded that the effects of the injury had ceased to affirm the decision under review. The Tribunal found that the applicant's demeanour and the nature of SSD explained variations in her evidence. Despite these findings, the Tribunal emphasised the need to assess impairment based on objective evidence, particularly the video surveillance footage, which provided a perspective unaffected by the applicant's focus on her condition and claims.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal agreed that Counsel could deliver written closing submissions and then orally address the Tribunal at a later date. Consequently, on 18 November 2019, the Applicant filed and served her written submissions. On 3 December 2019 the Respondent filed and served written submissions. The Tribunal has had regard to the written submissions of the parties and the oral submissions made by Counsel on 10 December 2019.ISSUES BEFORE THE TRIBUNAL AND THE EVIDENCE RELIED UPON The submissions filed by the parties demonstrated that they were broadly in agreement in respect of the issues to be determined by the Tribunal. The formulation of the issues in the Applicant’s submissions[9] is more extensive than the formulation offered by the Respondent.[10] Noting that the Respondent had accepted liability for two conditions under the Act until 2017, the Tribunal is of the view that the appropriate formulation of the issues for determination is as follows:(a)What condition(s) did the Applicant suffer and for which liability was accepted until 16 October 2017;[11] and(b)Did the Applicant continue to suffer the condition(s), referred to in answer to the first issue, after 16 October 2017, and if so:(i)was there continuing incapacity for work; and/or(ii)a need for reasonable medical treatment for the condition(s); and(c)If the Applicant continued to suffer the condition(s) referred to in answer to the first issue after 16 October 2017, is she entitled to compensation for permanent impairment and non-economic loss. [9] ‘Applicant’s submissions’, 18 November 2019, [8]. [10] ‘Respondent’s outline of submissions’, 1 December 2019, [5].[11] Date of cease effects decision. The Tribunal received in evidence, by consent, three volumes of T documents[12] and a volume of supplementary T documents.[13][12] T Documents, T1–T160.[13] Supplementary T Documents, ST1–ST17. The Applicant called two expert witnesses in support of her case: Dr Little, a Consultant Physician with specialist qualifications in Allergies and Immunology, who had treated the Applicant for several years; and Dr Reid, a Consultant Psychiatrist, engaged for medico-legal purposes only. The Applicant gave evidence about the onset of her symptoms and conditions, how they progressed and her experience of the same over some eight years. She was cross- examined very closely, particularly about alleged inconsistencies in reports she had made about her symptoms and disability, and what was demonstrated on video surveillance evidence.[14][14] Exhibit R2, Surveillance Footage CD, tendered 27 September 2019. The video surveillance had been taken between 16 September 2019 and 22 September 2019, a short time prior to the hearing in the Tribunal. After hearing submissions from Counsel on the first day of the hearing, the Tribunal made a ruling that the Respondent could adduce the video surveillance into evidence.[15] It also directed that the video surveillance be disclosed to the Applicant’s Counsel and solicitors. [15] Transcript 25.9.19, p 21, lines 20–26.

Decision

Reasons for decision

The finding of the Tribunal, that the Applicant’s compensable injury was a SSD, is one that the Tribunal is able to make on the evidence before it and pursuant to the principles articulated by the Full Court of the Federal Court in Telstra Corporation Limited v Hannaford.[57] [57] (2006) 151 FCR 253, per Conti J at [57] onwards and Heerey J at [8] onwards.DID THE APPLICANT CONTINUE TO SUFFER A SSD AFTER DECISION TO CEASE LIABILITY? The Respondent’s submissions contend that if the Applicant suffered SSD for which the Respondent was initially liable, by the time of the cease effects decision, it was no longer liable. The Respondent cites Prain v Comcare[58] as authority for the proposition that the effect of Dr Reid’s evidence meant that the Tribunal should affirm the Respondent’s decision of 16 October 2017.[58] [2017] FCAFC 143. Although Dr Reid accepted that validation of the Applicant’s beliefs about chemical sensitivity by Dr Little and suggestibility could perpetuate the condition, in the Tribunal’s view that does not mean that exposures to the chemicals and odours in the workplace were no longer of significance to the continuation of symptoms of SSD.[59] It is also potentially relevant that the Respondent apparently accepted that the treatment by Dr Little was reasonable as it paid for it and that the Applicant was referred to Dr Little as a suitable medical specialist.[59] Transcript, 21 October 2019, p 19, lines 21–25. The Respondent does not carry a strict onus of proof upon this review, but many authorities establish that the Tribunal must have before it sufficient material to persuade it that the effects of the compensable injury have ceased, if the decision under review is to be affirmed.[60] [60] Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525; Commonwealth v Borg (1991) 20 AAR 299 at 307; Comcare v Nichols [1999] FCA 209, [22]. The Tribunal finds that the Applicant continued to suffer the effects of SSD after 16 October 2017. It does so on the basis of:(a)the opinions of Dr Reid, which it prefers to those of Dr Chow about ongoing causation; and(b)the view that the Applicant has not been consciously dishonest in her inconsistent portrayal of symptoms or functional limitations of SSD. In arriving at the position set out at [91] the Tribunal has had the benefit of assessing the Applicant’s demeanour and to the extent that there is variation between her evidence to the Tribunal, her answers in the ComSuper questionnaire and the activities or behaviour shown on the video surveillance, that is explained by the very nature of SSD. Despite the Tribunal’s conclusion at [91] and [92], the Tribunal must approach the task of assessing the question of impairment based on objective evidence of the Applicant’s functioning. The best objective evidence is the content of the video surveillance, as it demonstrates how she acts and functions through a prism unaffected by her focus on SSD, treatment and claims for compensation.

Ratio Decidendi

Legal Principle Established

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