Hennessey-Milne and Comcare (Compensation) - [2018] AATA 4453

Hennessey-Milne and Comcare (Compensation) [2018] AATA 4453 (28 November 2018)
Division:GENERAL DIVISION
File Number: 2016/6090
Re:Christopher Hennessey-Milne
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:28 November 2018
Place:Canberra

The Tribunal affirms the Decision under review.
........................................................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION – appropriate diagnosis - underlying personality issues – ongoing adjustment disorders – whether Applicant suffered an ailment or aggravation of an existing ailment – whether applicant suffered a psychiatric condition caused by, or materially contributed to, by his employment – New South Wales Police Force – Department of Education and Training – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Abrahams v Comcare [2006] FCA 1829; 93 ALD 147
Australian Postal Corporation v Lucas (1991) 33 FCR 101
Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219
Bird v Commonwealth (1988) 165 CLR 1
Comcare v Mooi (1996) 69 FCR 439
Comcare v Porter (1996) 70 FCR 139
Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Lim v Comcare [2016] FCA 709
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
National Australia Bank Ltd v Georgoulas [2013] FCA 1412; 217 FCR 882
Newham and Australian Telecommunications Company (1990) 22 ALD 783
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Pedersen and Comcare [2016] AATA 449.
Pettiford and Comcare (2014) 139 ALD 411
Prain and Comcare [2014] AATA 593; 142 ALD 393
Prain v Comcare [2017] FCAFC 143; 256 FCR 65
Read v Military Rehabilitation and Compensation Commission [2018] FCA 848; 158 ALD 537
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328
SECONDARY MATERIALS
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
REASONS FOR DECISION
Deputy President J Sosso
28 November 2018
INTRODUCTION

Mr Christopher Hennessey-Milne (the Applicant) applied to the Tribunal for a review of a decision by Comcare of 27 October 2016, that it had no present liability for medical expenses and incapacity payments under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) – Exhibit 1 T1 pp. 12 – 20.
The Applicant had an accepted workers’ compensation claim in respect of major depression/anxiety disorder and post traumatic stress disorder (PTSD), with a date of injury of 26 May 2005 – Exhibit 1 T3 pp. 22 – 35.
APPLICANT’S HISTORY UNTIL 2004
The Applicant was born in 1972 and is currently 46 years of age. He grew up and attended school in Sydney, where he claimed he experienced a stable family life and had good relations with his parents and his older brother – Exhibit 1 T5 p. 46.
After graduating from high school in 1989, the Applicant commenced working as a laboratory assistant at the University of Sydney. The Applicant testified that during the time he was employed in this capacity he experienced no interpersonal problems with his co-workers – Transcript (Tr.) 21 May 2018 p.…

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: [2018] AATA 4453
Decision Date: 28 November 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Hennessey-Milne, against a decision by Comcare regarding a claim for workers' compensation. The dispute centred on whether the applicant had suffered a compensable psychiatric condition, specifically an ailment or an aggravation of an existing ailment, that was caused by or materially contributed to by his employment with the New South Wales Police Force. The case was heard by Deputy President J Sosso of the Tribunal.

The primary legal issues before the Tribunal were to determine the appropriate diagnosis of the applicant's condition, whether he suffered a disease in 2005 that was materially contributed to by his employment, and whether this condition constituted a compensable ailment. The Tribunal was also required to consider whether the condition was a result of reasonable disciplinary action, an adjustment reaction that fully resolved within 12 months, or if the applicant had made a wilful and false representation. Finally, the Tribunal had to ascertain when the compensable disease ceased to be materially contributed to by employment factors.

The Tribunal found that the applicant was suffering from a mental disease by the conclusion of his employment with the New South Wales Police Force, identifying the preferable diagnosis as acute anxiety neurosis, as given by Dr McKendry. It was determined that the applicant suffered a disease in 2005 that was materially contributed to by his employment, and this was not a result of reasonable disciplinary action. Furthermore, the Tribunal found that the condition was not an adjustment reaction that fully resolved within 12 months of April 2005, nor had the applicant made a wilful and false representation. The Tribunal concluded that the compensable disease ceased to be materially contributed to by employment factors by the time of the reviewable decision. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

The Tribunal affirms the Decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal, then, makes the following findings:(a)the Applicant was, by the conclusion of his employment with the New South Wales Police Force, suffering from a mental disease;(b)the preferable diagnosis of that disease is that given by Dr McKendry, namely acute anxiety neurosis;(c)the Applicant suffered a disease in 2005 that was materially contributed to by his employment;(d)the compensable disease was not suffered by the Applicant as a result of any reasonable disciplinary action;(e)the compensable disease was not an adjustment reaction which fully resolved within 12 months of April 2005;(f)the Applicant did not make a wilful and false representation pursuant to s 7(7) of the Act; and (g)the compensable disease ceased being materially contributed to by employment factors by the time of the reviewable decision.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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