Grantham and Australian Capital Territory (Compensation) - [2023] AATA 4152

Grantham and Australian Capital Territory (Compensation) [2023] AATA 4152 (18 December 2023)
Division:GENERAL DIVISION
File Number: 2022/2811
Re:Marilou Grantham
APPLICANT

AndAustralian Capital Territory
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:18 December 2023
Place:Sydney

The reviewable decision dated 5 April 2022 is set aside and substituted with a decision that, as of 28 February 2022, the Respondent is liable to pay compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for aggravation of Major Depressive Disorder, single episode and aggravation of Depressive Type Psychosis.
The parties are directed to file written submissions on the question of costs within 28 days of this decision.
...............[SGD].........................................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
WORKERS COMPENSATION – Safety, Rehabilitation and Compensation Act 1983 (Cth) – no present liability – whether Applicant continues to suffer the effect of injuries – whether injuries result in need for medical treatment or incapacity – whether Respondent correct to accept liability to pay compensation – where determination of Comcare disturbed status quo – where Comcare required to persuade Tribunal to disturb status quo – where Tribunal not comfortably satisfied – decision under review set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Abrahams v Comcare [2006] FCA 1829
Dean v Australian Postal Corporation [2010] FCA 680
Gregory and Comcare [2018] AATA 2075
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Wiegand v Comcare [2002] FCA 1464
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
18 December 2023
INTRODUCTION

Ms Marilou Grantham (the Applicant) was employed by ACT Health from 1989. On 14 November 2010 she reported an incident at work. Upon investigation, Comcare found that an incident had occurred on 13 November 2010 involving the Applicant and her co-worker (MQTQ), and that the Applicant suffered a psychiatric injury.[1]
[1] T23, 274, 276.
The delegate found that the injury constituted an aggravation of an underlying pre-existing condition, namely Post Traumatic Stress Disorder (PTSD) and Depression, and that the aggravation was contributed to a significant degree by her employment with ACT Health. The delegate applied the principle in Wiegand v Comcare [2002] FCA 1464 (Wiegand), that where an incident is found to have occurred and created an impression in the mind of the employee (whether reasonable or not in the thinking of others), and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.
On 23 October 2012, Comcare accepted liability to pay compensation to the Applicant under section 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (SRC Act) for:
·Aggravation of Major Depressive Disorder, Single Episode and
·Aggravation of Depressive Type Psychosis.
The Applicant received income support and medical treatment expenses from 2012 paid for by the insurer. In late 2021, a new expert…

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.

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Details

Case: [2023] AATA 4152
Decision Date: 18 December 2023

CaseChat Overview and Summary

The case of Grantham and the Australian Capital Territory (Compensation) concerned an application for review of a decision by the Respondent to refuse to give effect to a previous determination of liability under section 14 of the Safety, Rehabilitation and Compensation Act 1983 (Cth). The Applicant had previously been accepted as suffering from a compensable injury, but the Respondent sought to disturb this status quo based on a subsequent report by an independent psychiatrist, Dr Kar. The Tribunal was required to determine whether the Respondent's refusal to continue paying compensation was soundly based, considering the conflicting medical opinions presented.

The central legal issue was whether the Applicant continued to suffer the effects of her injury, resulting in a need for medical treatment or incapacity, and whether the Respondent had discharged its burden of persuasion to disturb the previously accepted liability. The Tribunal had to be comfortably satisfied that disturbing the status quo was justified. The Respondent's argument, supported by Dr Kar's report, was that the Applicant had been misdiagnosed and that her current condition was likely schizophrenia, a long-standing illness not causally connected to the workplace incident. Dr Kar opined that it was unlikely a single traumatic event could cause major depression and suggested that other health professionals had been misled by the Applicant and her daughter's advocacy.

The Tribunal considered the evidence, including reports from Dr Kar and a psychiatrist commissioned by the Applicant, Dr Rajiv Siotia, as well as the oral evidence of the Applicant and her daughter. The Tribunal noted that the burden of persuasion rested with the Respondent, who sought to disturb the existing determination of liability. Ultimately, the Tribunal was not comfortably satisfied that the Respondent had discharged this burden. The decision under review was set aside.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

After the hearing of evidence, counsel requested the opportunity to provide written submissions, which was granted. BACKGROUND The following background is extracted from the materials filed by the parties, the SFICs, and the oral evidence presented to the Tribunal. The case is well documented in the medical records. The Applicant was born in Manilla in 1959.[6] She had a happy childhood and completed high school. Her first language is Tagalog, the main language of the Philippines. She had her first child (Jane) at a young age (16 or 17). Unfortunately, she suffered a tragedy when her husband was killed in an accident.[7] A few years later she met an Australian visiting the Philippines. They married and settled in Australia. Her second child, Kimberley, was born in 1985.[8] The Applicant’s second husband was reportedly abusive, and their relationship short-lived. They separated, and she set about improving her qualifications, studying hospitality at TAFE.[9] She was on the pension for a year, and had some short-term employment. In 1989, she secured work in Food Services at a Canberra hospital. She sponsored her first child Jane to join her in Australia and has a very close and supportive relationship with both daughters.[6] ASFIC, 3.1.[7] Medical Report: T65, 448.[8] Transcript, 16 August 2023, 237.[9] T61, 416.THE INCIDENT On 13 November 2010, there was an incident with a colleague, MQTQ, who also came from the Philippines and spoke Tagalog.[10] The next day the Applicant made a formal complaint. She said that MQTQ had called her ‘ugly’ and that she felt ‘embarrassed and bullied’.[11] MQTQ also made a complaint. She said that the Applicant was rude to her. She said that she used a phrase in Tagalog which referred to behaviour rather than appearance: I did not call Ms Grantham “ugly”. I said “Pang It Ang Ugalimo” which translates to “very bad ugly attitude and manners”. I was not talking about how she looked. I was talking about how she was treating me.[12] [10] T3.4 and T3.41.[11] ASFIC 3.3.[12] Outline of evidence: RSFIC 3.4. On 20 January 2011, the Applicant wrote to her employer.[13] She believed that her colleagues were gossiping about relevant events and that there had been ‘leaks’ of confidential information. She was ‘greatly affected’, and her health had been ‘suffering’.[13] ASFIC, 3.4 On 22 February 2011, a joint mediation session was scheduled with the Applicant and MQTQ, however, the Applicant ‘left it in tears’.[14] The mediator suggested to the Applicant that prior to organising another joint session, she should have further counselling to deal with her uncovered emotions.[15][14] ASFIC, 3.5.[15] T3.22, 65. On 2 March 2011, the Applicant wrote to Mr Terry Keel, Employee Relations Unit, ACT Health. The letter was co-signed by Kimberley. The Applicant said that she went to the IPS Conflict Resolution session but left feeling upset and stressed and went home crying. She said that if ‘the Food and Beverage Management dealt with the investigation with more care, a prompt response and practise the duty of care to a bullying incident I wouldn't be feeling this way’.[16] She noted that after Kimberley spoke with Mr Keel, ‘we came to a resolution that the Management Team will conduct a Food Service Staff Meeting to address the use of non-English language in the workplace’.[17] [16] T3.20, 63.[17] See ASFIC, 3.6; RSFIC 3.1.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 5 April 2022, the Respondent affirmed the decision made by the delegate (the reviewable decision).[4][4] T1.1, 6. On 7 April 2022, the Applicant filed an application for review of the decision of 5 April 2022.[5][5] T1, 1. The application was heard on 14, 15, 16 and 17 August 2023. The Tribunal reconvened to hear final oral submissions on 6 October 2023. The Applicant was represented by Mr A. Schofield, of counsel, instructed by Mr T. Maling, of Elringtons Lawyers. The Respondent was represented by Mr M. Gollan of counsel, instructed by Mr R. Moss, of HWL Ebsworth Lawyers. The Tribunal was exposed to thousands of pages of medical records. The parties filed a substantial body of material, written submissions, and a Statement of Facts, Issues and Contentions (SFICs). The Applicant gave evidence in support of her claim. Her daughter Kimberley gave oral evidence. They were both cross-examined by Mr Gollan. The Respondent offered to call MQTQ, but Mr Schofield did not require her for cross-examination. Her outline of evidence was admitted without contest. The Tribunal also heard from a psychiatrist commissioned by the Applicant, Dr Rajiv Siotia and Dr Kar, commissioned by the Respondent. Each had provided written reports. They were cross-examined at length by counsel. After the hearing of evidence, counsel requested the opportunity to provide written submissions, which was granted. BACKGROUND The following background is extracted from the materials filed by the parties, the SFICs, and the oral evidence presented to the Tribunal. The case is well documented in the medical records. The Applicant was born in Manilla in 1959.[6] She had a happy childhood and completed high school. Her first language is Tagalog, the main language of the Philippines. She had her first child (Jane) at a young age (16 or 17). Unfortunately, she suffered a tragedy when her husband was killed in an accident.[7] A few years later she met an Australian visiting the Philippines. They married and settled in Australia. Her second child, Kimberley, was born in 1985.[8] The Applicant’s second husband was reportedly abusive, and their relationship short-lived. They separated, and she set about improving her qualifications, studying hospitality at TAFE.[9] She was on the pension for a year, and had some short-term employment. In 1989, she secured work in Food Services at a Canberra hospital. She sponsored her first child Jane to join her in Australia and has a very close and supportive relationship with both daughters.[6] ASFIC, 3.1.[7] Medical Report: T65, 448.[8] Transcript, 16 August 2023, 237.[9] T61, 416.THE INCIDENT On 13 November 2010, there was an incident with a colleague, MQTQ, who also came from the Philippines and spoke Tagalog.[10] The next day the Applicant made a formal complaint. She said that MQTQ had called her ‘ugly’ and that she felt ‘embarrassed and bullied’.[11] MQTQ also made a complaint. She said that the Applicant was rude to her. She said that she used a phrase in Tagalog which referred to behaviour rather than appearance: I did not call Ms Grantham “ugly”. I said “Pang It Ang Ugalimo” which translates to “very bad ugly attitude and manners”. I was not talking about how she looked. I was talking about how she was treating me.[12] [10] T3.4 and T3.41.[11] ASFIC 3.3.[12] Outline of evidence: RSFIC 3.4.

Ratio Decidendi

Legal Principle Established

In a report dated 6 March 2023, Dr Kar wrote that his opinion was unchanged.[121][121] ASFIC, 3.45; RSFIC 3.2.CONSIDERATION The issue before the Tribunal is whether the Respondent’s refusal to give effect to a previous determination of liability under section 14 of the SRC Act, on the basis that the effect of the original injury is spent, was soundly based. In practical terms, the burden of persuasion rests with the Respondent who seeks to disturb the status quo. The Tribunal needs to be comfortably satisfied that it is justified in disturbing the status quo.[122][122] Gregory and Comcare [2018] AATA 2075; T103, 649. The reviewable decision was based on a report made by Dr Kar, a psychiatrist appointed as an independent expert, who reported that the Applicant had been misdiagnosed and that she had not suffered an injury in the manner accepted by Comcare in 2011. In these proceedings, the Respondent asks the Tribunal to find that the incident said to have given rise to a compensable injury did not happen or could not have had the impact previously accepted. Dr Kar is of the professional opinion that it is ‘very unlikely’ that a single traumatic event could cause major depression.[123] In his opinion, a more likely explanation of her disability is that she suffers from a long-standing illness, namely schizophrenia, and that this condition emerged around the same time as the incident at work but was not causally connected to it. He opines that her behaviours satisfy the diagnostic indicators for schizophrenia but not for major depression. He accepts that he is the only health professional who has diagnosed schizophrenia. [123] Transcript, 17 August 2023, 12, 13. In terms of the reliability of diagnoses made by other health professionals, he considers that those who saw the Applicant with either Kimberley or Jane had been misled by their narration or advocacy. Dr Kar considers that the presence of a third party (especially a family member) leads inevitably to error and refers to professional guidelines which frown on such a practice. He considers that those health professionals who saw the Applicant in the presence of either daughter (nearly all of them) have formed erroneous judgments because of their advocacy. In his substantive report dated 21 October 2021, Dr Kar states that Kimberley was present throughout his videoconference session with the Applicant, but he believes that he has not been distracted by Kimberley’s comments or explanations, and that he alone has objectively applied the DSM criteria.[124] [124] T98, 584. The submission advanced for the Respondent by Mr Gollan, on the back of Dr Kar’s report, is that the Respondent has been fed a false narrative by the Applicant and her daughter. The narrative was so persuasive that several treating psychologists, psychiatrists, and health professionals accepted it. The truth, says Mr Gollan, is that she suffers from schizophrenia, she is undeniably very sick and may never recover, but this condition was not caused or aggravated by a workplace incident, and therefore she is not entitled to compensation for major depression. He suggests that her symptomatology in 2010 to 2011 and ever since is due to schizophrenia for which the Respondent is not responsible.