Frosch and Comcare
[2004] AATA 382
•23 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 382
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/122
GENERAL ADMINISTRATIVE DIVISION ) Re JEANNENE FROSCH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr G A Mowbray Date23 March 2004
PlaceCanberra
Decision For reasons given orally on 23 March 2004 the Tribunal affirms the decision of Comcare dated 20 March 2003. The Applicant is not entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 for her condition of post traumatic stress disorder. ..............................................
Member
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: A2003/122
GENERAL ADMINISTRATIVE DIVISION )Re: JEANNENE FROSCH
Applicant
And: COMCARE
Respondent
DIRECTION [2004] AATA 382
Tribunal Mr GA Mowbray, Member
Date 5 May 2004
Place CanberraDirectionPursuant to section 43AA(1) of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that the Registrar alter the text of the reasons for decision in this matter published on 16 April 2004 as follows:
Paragraph 10 is amended by deleting the first sentence and substituting the following words: “For the purposes of these proceedings Ms Frosch does not press an absence of prejudice and concedes that the exceptions of death, absence from Australia, ignorance and mistake are not applicable.”
.............................................
Member
CATCHWORDS
COMPENSATION – refusal of liability – failure to notify of injury as soon as practicable – what constitutes notice – medical certificate as notice – five and half years delay – reasonable cause – ill health – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 s 53
Commonwealth Employees’ Compensation Act 1930 s 16
Lees v Comcare (1999) 29 AAR 350
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Australian Postal Corporation v Mowbray [2003] FCA 1258
Banks v Comcare [1996] FCA 382
REASONS FOR DECISION
16 April 2004 Mr G A Mowbray Background
1. On 4 September 2002 Ms Frosch made a claim under section 54 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for compensation and rehabilitation for post traumatic stress disorder (PTSD). She stated she first noticed the illness in approximately mid-1994 onwards. She later described this illness as being due to persistent bullying by her employer, Comsuper.
2. The claim was refused by determination dated 28 November 2002 and this refusal was confirmed by a reviewable decision of 20 March 2003. The refusal relied on section 14 of the Act. Ms Frosch now seeks review of this decision by the Tribunal.
3. On 1 December 2003 Senior Member Sassella decided the Tribunal had jurisdiction to consider the preliminary question of whether Ms Frosch had satisfied the notice requirement in section 53, before proceeding to a substantive hearing on the merits.
4. This preliminary question was heard on 22 March 2004 and oral reasons for affirming the reviewable decision given on 23 March 2004. On 25 March 2004 the Tribunal received a request for written reasons for the decision from Ms Frosch’s legal representative pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the oral reasons with appropriate minor editing.
Notice of Injury : the Issues
5. It is common ground that a determination under section 14 is dependent on satisfaction on five elements, including a valid section 53 notice. As the Full Court in Lees v Comcare (1999) 29 AAR 350 put it at [35]
“[A] determination under s 14 … will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act;”
6. Justice Cooper in Australian Postal Corporation v Oudyn (2003) 73 ALD 659 said at [32]
“The power of APC to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees. A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury.”
7. And as Justice Stone stated in Australian Postal Corporation v Mowbray [2003] FCA 1258 at [23]
“Further, for the SRC Act to apply, notice in writing of the injury must have been given to the relevant authority as soon as practicable after the employee became aware of the injury; s 53.”
8. Section 53 of the Act relevantly provides
“53 Notice of injury or loss of, or damage to, property
(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury; or
…
(3) Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.”
9. Therefore written notice must be given to Comcare as soon as practicable after the employee becomes aware of the injury. But this requirement can be relaxed if Comcare would not be prejudiced or if the failure resulted from death, absence from Australia, ignorance, mistake or any other reasonable cause.
10. For the purpose of these proceedings Comcare does not press prejudice and Ms Frosch concedes that the exceptions of death, absence from Australia, ignorance and mistake are not applicable. Ms Frosch relies on reasonable cause if I find that the notice had not been given at the appropriate time.
11. Thus there are two issues before the Tribunal
· did Dr Rosendahl's certificate of 8 January 1998 constitute notice for the purposes of section 53
· if not, can Ms Frosch be excused under section 53(3) because of "any other reasonable cause".
12. For present purposes I will accept that Ms Frosch's illness of PTSD became an injury for the purposes of section 53 in March 1997 as suggested by Mr Anforth for Ms Frosch, this being the earliest period of incapacity. This was not disputed by Mr O'Donovan in submissions for Comcare, although I note that Ms Frosch's formal claim for compensation itself refers to mid-1994 onwards (see section 7(4) on deemed dates of injury).
Was Dr Rosendahl's Certificate a Notice
13. Dr Rosendahl provided the following certificate on 8 January 1998
“January 8 1998
Mr Bob Fowler
ComSuper
PO Box 22
Belconnen 2616
Re: Jeannene Frosch
CERTIFICATE
Dear Mr Fowler,
Mrs Jeannene Frosch has been to see me several times about stress suffered by her at work. She finds there is a less than congenial circumstance in her workplace at present and she considers that false statements have been made about her by others in the workplace.
The matter came to a head on 23/12/97, when she attended my office in considerable distress.
She has again attended my office today saying that she has only been back to the workplace to clean out her room, and that event precipitated dry retching.
I assess her as significantly depressed and I am prescribing an antidepressant for her.
At this time she is not wishing to claim compensation (although this avenue is open to her), and is content to take leave as ordinary sick leave for which she has a substantial entitlement. I am in agreement with this decision of hers.
On account of stress in the workplace, I consider she is unfit for work from 19/12/97 to 23/1/98 inclusive. I will be reviewing her again prior to that date.
sincerely
Glen Rosendahl, M.B.,B.S.
Our ref: FROSJ008”
14. Mr Anforth submits this constitutes the relevant written notice for the purposes of section 53. He notes that claimants do not communicate directly with Comcare but through their employing authority acting as an agent. Ms Frosch gave evidence to this effect, which I accept for present purposes. However I reject the primary submission and agree with Comcare which contests that this amounts to notice for the purposes of section 53.
15. Looking at the letter there is no suggestion it was sent to ComSuper as an agent for Comcare. It is headed "Certificate". It made absolutely clear that Ms Frosch did not wish to proceed with any compensation matter at that time
“At this time she is not wishing to claim compensation (although this avenue is open to her), and is content to take leave as ordinary sick leave for which she has a substantial entitlement. I am in agreement with this decision of hers.”
This intention of Ms Frosch was confirmed in clear terms by her in her oral evidence. If ComSuper had sent the certificate to Comcare it would have been in breach of Ms Frosch's express wishes.
16. The certificate demonstrates a conscious decision by Ms Frosch not to notify Comcare at that time. In my view it is simply a certificate for sick leave, similar to those at exhibits T5 and T6. I again refer in particular to the heading "Certificate" and to the last paragraph which indicates the period of leave it covered.
17. I therefore find that Dr Rosendahl’s certificate of 8 January 1998 did not constitute written notice for the purposes of section 53 of the Act.
When was Notice Given
18. The first written notice was given in the claim for compensation and rehabilitation of 4 September 2002 (exhibit T8). This is some five and a half years after the March 1997 date which I have accepted for these proceedings as the deemed date of injury. It is clearly not “as soon as practicable after the employee becomes aware of the injury;”.
19. Ms Frosch has not therefore been able to satisfy the test in section 53 unless the reasonable cause proviso in section 53(3)(c) applies.
Was there any Reasonable Cause for the Delay
20. The expression "reasonable cause" has been considered in a similar context in section 16 of the Commonwealth Employees’ Compensation Act 1930 in Banks v Comcare [1996] FCA 382. There Justice Kiefel said
“The expression "reasonable cause" has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of necessary notice or claim.”
21. In her claim for compensation and rehabilitation Ms Frosch stated
“I first sought medical treatment for my stress-related condition around 1996. I have been unable to make this claim earlier because of the effects of my condition and my phobias about my former workplace, ComSuper. My employer also did not provide me with support or advise me of any avenues for dealing or resolving this workplace issue. Instead I felt ComSuper gave me no option but to accept an involuntary redundancy, as their means of dealing with this issue, at a time when I was totally incapacitated with the effects of my injury. At that time I hoped by leaving work the effects of my condition would get better. They have not, I have continued to suffer from the condition, requiring treatment from a psychiatrist, and medication and have been unable to work or participate in any events where certain persons from ComSuper may be involved.
I have only recently received the correct diagnosis of post traumatic stress disorder - I had previously been diagnosed with depression. I am now receiving appropriate treatment from Dr Tym and with the assistance of my daughter, Nicole Frosch, only now feel able to lodge this claim.”
22. In her oral evidence Ms Frosch said that she had not been well enough to pursue compensation earlier. Although she had been “writing ever since she went on sick leave” in December 1997, she had been very confused as she felt so unwell. She suffered a total depressive state. She had not been sleeping at night and had been on medication. She had not been able to get her thoughts together and put them down in a proper context. Up to the time she saw Dr Tym in 2002 she had been suffering from depression, anxiety and panic attacks. Her doctors told her that if she sought compensation it would impede her recovery. Nevertheless she definitely thought her condition was work caused and knew she could seek compensation.
23. Under cross-examination she reiterated that she knew her condition was work related. She agreed that in the past Dr Rosendahl had contacted Comcare on her behalf and could do so again. She said however that she wanted time to think through the matter as she could not make a decision about anything. She decided not to do anything about it when she saw Dr Rosendahl in January 1998, although he would have done it for her.
24. Ms Frosch saw a Health Services Australia doctor, Dr Boyaparti, on 21 April 1998. Dr Boyaparti reported
“Ms Frosch stated that she had improved significantly since March, attributing this to antidepressant medication and eight weeks rest. Her concentration attention span, self image are all back to near normal levels. She had apparently resumed reading books, gardening and socialising with colleagues. (She was able to attend a lunch with her office friends recently without getting unduly upset).
CLINICAL EXAMINATION
Ms Frosch appeared quite cheerful. Mood and affect normal. Cognition intact. She was able to give her progress since last examination without emotional upset.
ASSESSMENT/RECOMMENDATION
Ms Frosch suffered from a reactive depression and anxiety state which she stated was the result of work related incidents. She has made noticeable improvements in her concentration, mood attention to tasks and self image. She had resumed activities she had enjoyed in the past.
In my opinion Ms Frosch is fit for a graduated return to her duties.”
Ms Frosch agreed that this assessment was generally fair, although as it turned out she had only returned to work for two half days. She had then made a conscious decision to take long service leave and not sick leave.
25. Ms Frosch said that over the period March to July 1998 she had considered the question of her superannuation benefits were she to retire. Because she couldn't make a decision she opted for a default position. However she understood that retiring before she was 55 years brought her an extra benefit.
26. On 29 June 1998 Ms Frosch accepted an offer of redundancy with effect from 3 July 1998. In a letter of 29 June 1998 she indicated how she wanted the redundancy payment of approximately $45,000 distributed between three bank and credit union accounts. She also requested that a flex debit be taken into account. In oral evidence she said this was worth less than $300. Ms Frosch said that she had been able to make such conscious decisions on advice from a financial adviser.
27. Was there then an
“act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such nature that it might be expected to delay the giving of the necessary notice or claim” (see Banks v Comcare above)?
I think not.
28. In his written submissions Mr Anforth for Ms Frosch suggested there were three reasonable causes
“(a)the fact that the applicant was open and transparent with Comsuper at all times, but Comsuper was careless in the manner in which it dealt with the applicant's case. …
(b)the medical evidence in this case makes it clear that the applicant did not necessarily associate her post retirement ongoing psychological problems with the work incidents. It was only after Dr Tym uncovered the connection for her that she became aware of the issue.
(c)the applicant was not psychologically able to cope with the process of making an application until she had been successfully treated by Dr Tym. Doctors Rosendahl and Mendick [sic: Dr Ross], in their reports of 8 January 1998 and 19 Sept 2003 respectively, both attest that they discouraged the applicant from making a formal claim in the period from 1998 because the stress would be deleterious to her health.”
29. I have already noted above that Ms Frosch clearly decided that she did not want to deal with the compensation issue. This was evidenced in Dr Rosendahl's certificate of 8 January 1998 and, indeed, in Ms Frosch's own oral evidence to the Tribunal. The fact that she was open and transparent with Comsuper therefore is beside the point.
30. I do not accept that Ms Frosch's health prevented her giving notice over the five and a half years from March 1997 to September 2002. The evidence clearly points to her making a conscious decision not to pursue compensation. There were significant periods of time when she was quite capable of giving notice if she chose. I refer particularly to Dr Boyaparti's report and those of Dr Mandy Evans, Ms Frosch’s psychiatrist. The evidence relating to superannuation and voluntary retirement decisions reinforces this.
31. The giving of notice is to be distinguished from a full claim for compensation, as Mr Anforth pointed out. It is neither difficult nor time consuming. The notice could have been given by any person at Ms Frosch's request. For example, her GP. Ms Frosch agreed that she was quite able to make such a request.
32. The evidence before me is that Ms Frosch had significant periods when she was fully capable of assessing where her own interests lay. She chose not to. It was only apparently after she saw Dr Tym in 2002 that she made a conscious decision to pursue compensation.
33. I agree with Mr O'Donovan for Comcare that the following passage from Banks v Comcare is apposite
“Here however it was not just the circumstances prevailing which operated to hinder or prevent the giving of notice, but a conscious decision made by the applicant in light of those circumstances and according to where it was perceived his best interests lay. It was a decision that a claim not be pursued … It is difficult however to accept that proviso (ii) was intended to encompass a position where a person might later change their mind about making the claim for the reason that it now suited them to do so.”
34. I find that Ms Frosch has not made out any reasonable cause for delaying the notification till September 2002. She has not therefore met the requirements of section 53 for notification and consequently the Act does not apply to her PTSD. This result may seem harsh but it is clearly consistent with the policy underlining the requirement that Comcare be put on notice as soon as possible after an injury. This is despite the beneficial nature of the legislation.
35. The decision under review must be affirmed.
Decision
36. The reviewable decision of 20 March 2003 is affirmed. Ms Frosch is not entitled to compensation under the Act for her condition of PTSD.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray.
Signed: .....................................................................................
AssociateDate of hearing 22 March 2004
Date of decision 23 March 2004
Date of Written Reasons 16 April 2004
Counsel for the Applicant Mr Allan Anforth
Solicitor for the Applicant Mr David Lander,
Lander & Co
Counsel for the Respondent Mr Damien O’Donovan
Solicitor for the Respondent Mr Scott Moloney,
Phillips Fox
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