Gibson and Comcare (Compensation) - [2021] AATA 1183

Gibson and Comcare (Compensation) [2021] AATA 1183 (7 May 2021)
Division:GENERAL DIVISION
File Number(s): 2019/1543
Re:Stuart Gibson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:7 May 2021
Place:Sydney

The reviewable decision is set aside, and the matter remitted to Comcare for consequential orders. The respondent is to pay the costs reasonably incurred by the claimant in connection with this proceeding as provided by s 67(2) of the Act.
...........................[sgd].............................................
Deputy President B W Rayment OAM QC
CATCHWORDS
WORKERS’ COMPENSATION – anxiety and depression – whether applicant suffered an injury or disease – whether injury or disease suffered in the relevant period – where date of index injury assessed retrospectively – where expert medical evidence conflicting – where disease in the relevant period found – whether disease arose out of or in the course of employment – whether employment contributed to disease to a significant degree – whether disease suffered as a result of reasonable administrative action taken in a reasonable manner – reviewable decision set aside and remitted – cost order
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Martin [2016] HCA 43; (2016) 258 CLR 467
Comcare v ZZRP [2019] FCA 952
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
7 May 2021

Mr Gibson has worked for the Australian Tax Office (ATO) since approximately 2000. His level was that of an APS5 prior to July 2016. At that time, he was put on temporary higher duties, and for twelve months worked in Penrith at the APS6 level, which terminated at the end of June 2017, when he returned to Parramatta in his former role at the APS5 level.
During 2018 he consulted an ear, nose and throat (ENT) specialist who suggested he had a mood disorder and suggested on-referral to a psychologist. ln July 2018 he consulted a psychiatrist, Dr Brent Thomas, who diagnosed him as suffering from severe major depression with anxiety and panic attacks, together with significant pain secondary to his arthritis and a previous shoulder injury. Dr Thomas described his symptoms as very pronounced. He was concerned about suicidal ideation and the doctor at first wished to have him admitted to St John of God Hospital at Richmond. Instead, medication was administered, which led to significant improvement in his condition.
In 2018, Mr Gibson was having difficulties with his then team leader. Dr Thomas sought to reduce those difficulties by recommending that a proposed performance review be postponed for twelve months, a recommendation which Mr Gibson’s employers did not act upon.
Mr Gibson had not, before 2018, been informed by any medical professional that he may be suffering from any psychiatric condition, and did not in 2017 appreciate that fact, if it was so.
In 2018, Mr Gibson made a worker’s compensation claim against Comcare, nominating as the relevant period during which he acquired the condition…

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 Gibson and Comcare (Compensation)

Details

AGLC: Gibson and Comcare (Compensation) [2021] AATA 1183
Case: [2021] AATA 1183
Decision Date: 7 May 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr Gibson against a decision by Comcare regarding a claim for workers' compensation. The dispute centred on whether Mr Gibson had suffered an injury or disease, specifically anxiety and depression, arising out of or in the course of his employment, and whether this condition manifested during the relevant period. The case was heard by Deputy B W Rayment Oam Qc P.

The court was required to determine several legal issues. These included whether Mr Gibson suffered an injury or disease within the meaning of the relevant legislation, and if so, whether this occurred during the period in question. A key aspect was the retrospective assessment of the date of the index injury. The court also had to consider whether any diagnosed disease arose out of or in the course of Mr Gibson's employment, and if his employment contributed to the disease to a significant degree. Finally, the court needed to assess whether the condition was suffered as a result of reasonable administrative action taken in a reasonable manner.

The court's reasoning involved evaluating conflicting expert medical evidence. It accepted the evidence of Dr Thomas, Mr Gibson's treating psychiatrist, who, based on accounts from Mr Gibson and his partner, opined that Mr Gibson's psychological condition deteriorated from early 2017 and was potentially associated with and caused by workplace stress. Dr Thomas acknowledged the difficulty in assessing earlier stages of a condition observed later but found Mr Gibson and his partner to be truthful witnesses. The court also considered Dr Bhattacharayya's report, which indicated a significant contribution to the disorder from employment factors. The court found in favour of Mr Gibson on the issues of whether his condition arose out of or in the course of his employment and whether employment contributed to it to a significant degree.

The reviewable decision was set aside and remitted to Comcare for consequential orders. Comcare was ordered to pay the costs reasonably incurred by Mr Gibson in connection with the proceeding.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Another matter which should be mentioned is that when Mr Gibson’s mother died in 2010 he went through a period of depression, for which his general practitioner prescribed medication. Both sides led evidence which I accept, to the effect that one bout of depression might predispose a patient to a later bout of depression.The Medical Evidence Dr Thomas was, from July 2018, Mr Gibson’s treating psychiatrist. As with the other psychiatrists who gave evidence, he is appropriately qualified. He did not examine Mr Gibson during the relevant period. He has expressed a view about Mr Gibson’s condition in June 2017 based mainly upon Mr Gibson’s own statements to him. His written statement expressly refers to the statement of Mr Gibson dated July 2020 which I have summarised in [15]-[22] of these reasons. He also adds a remark referring to the fact that seronegative arthritis may cause depression, and similarly that it may be caused by depression. In other words, if seronegative arthritis was to blame for his hospitalisation in May 2017, that may have been caused by pre-existing depression. He explained at Tr 70: In your opinion, are you able to express an opinion as to any relationship between his employment in the period of, say, January 2017 leading up to when he collapses on 19 May 2017 and his psychological condition?---From the information I have provided to me by Mr Gibson and also from his partner, the deterioration was – started early in 2017, around about January, February and he just continued to deteriorate. So I can understand why, yes, it might be taken to have been associated with and in fact caused by problems with stress in the workplace. At Tr 72, he was asked in summary: So am I correct in understanding your opinion is that at least as of May 2017 when Mr Gibson at least collapsed at presented to the Nepean Hospital he was suffering with his psychological condition to some degree?---Yes, yes, that’s my opinion. Dr Thomas was aware that his account of what happened a year before he met Mr Gibson was not certain. Some of his answers in chief and in cross-examination stressed the difficulty he faced in expressing a view about the earlier stages of a condition which he saw in full bloom only in 2018. Nevertheless, he spoke to both Mr Gibson and his partner about the previous year’s events and applied his expertise when expressing his opinion to the Tribunal based upon their accounts. When I heard their evidence this year, I was impressed with their veracity. Again, the cross-examination by the respondent sought and obtained from Dr Thomas evidence supporting the proposition that the events of 2018 had a significant and adverse effect on Mr Gibson at the time of the diagnosis by Dr Thomas. The medico-legal evidence called from Dr Bhattacharayya followed a consultation with Mr Gibson in June 2019. The only conclusion expressed in the report was of a general nature. She said: ‘There appears to have been a significant contribution to the disorder which arose from employment factors which Mr Gibson claimed was from operational factors associated with his then employment’. The report relates to 2017 and 2018, rather than to the period relevant to this review, the first six months of 2017. In chief Dr Bhattacharayya was asked to accept that while working in higher duties, Mr Gibson had to work longer hours, and that it was observed by his supervisor, particularly from February 2017, that he was struggling to perform those functions, and that his partner observed him become withdrawn at home. She answered in the affirmative a question whether those factors were symptomatic of suffering a psychological condition prior to the collapse (in May 2017).

Decision

Reasons for decision

I should add that if it matters, I would resolve the conflict between Mr Miller and Mr Gibson, as to whether Mr Miller recommended that he leave earlier, in favour of Mr Gibson. I would prefer his evidence on the point not only because I generally accept Mr Gibson as a witness of truth but because I found some of Mr Miller’s evidence to involve deflection of any criticism of him as a supervisor. On the other hand, it should be said in his favour that in part by reason of his remoteness from the Penrith offices, he may not have been aware of the details of the effect that his tasking of Mr Gibson had upon him.CONCLUSION For all of those reasons I would resolve issues (a) and (b) in favour of Mr Gibson. The reviewable decision will accordingly be set aside, and the matter will be remitted to Comcare for consequential orders. The respondent is to pay the costs reasonably incurred by the claimant in connection with this proceeding as provided by s 67(2) of the Act.

Ratio Decidendi

Legal Principle Established

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