Hooley and Comcare (Compensation) - [2019] AATA 5176

Hooley and Comcare (Compensation) [2019] AATA 5176 (29 November 2019)
Division:GENERAL DIVISION
File Number(s): 2016/1439
Re:Andrew Hooley
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:29 November 2019
Place:Brisbane

The decision under review is affirmed.
..............................[SGD]..........................................
Senior Member Theodore Tavoularis
Catchwords
COMPENSATION – review of entitlement to medical expenses and incapacity payments - Applicant was an IT consultant employed by CSIRO – where Comcare accepted liability to pay compensation for injuries diagnosed as “adjustment disorder with disturbance of emotions” and aggravation of “obsessive-compulsive disorder” – whether Applicant continues to suffer from the effects of accepted conditions – whether injury(s) suffered during course of employment contributes to ongoing incapacity for work - decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Prain and Comcare (Compensation) [2016] AATA 459
Prain v Comcare (2017) FCR 143
Re Pettiford v Comcare (2014) 139 ALD 411
Szabo v Comcare (2012) 58 AAR 152
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Secondary Materials
Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
29 November 2019
Table of Contents
Introduction
Decision history
The Legislative Framework
Issues
Jurisdictional contest
Is the Tribunal’s jurisdiction confined?
Is the Decision in Hannaford relevant?
The Evidence of the Applicant – Summary of Evidence in Chief
The Evidence of the Applicant – Summary of Cross-Examination
The Evidence of Dr Jon-Paul Khoo – Summary of Evidence in Chief
The Evidence of Dr Jon-Paul Khoo – Summary of Cross-examination
The Evidence of Dr Axel Estensen – Summary of Evidence in Chief
The Evidence of Dr Axel Estensen – Summary of Cross-examination
The Evidence of Dr Christopher Slack - Summary
The Evidence of Dr Christopher Slack – Allocation of weight
The Evidence of Dr Aleksandra Isailovic – Summary of Evidence in Chief
Two preliminary matters
The Evidence of Dr Aleksandra Isailovic – Summary of Cross-examination
Two primary themes arising from the cross-examination
Other themes arising from the cross-examination
Conclusion
Decision
INTRODUCTION

Mr Andrew Hooley (the Applicant) is a 43 year old man who, on 27 February 2009, submitted a claim for Workers’ Compensation with Comcare (the Respondent) in respect of:
·Adjustment disorder (with anxiety and depression);
·Major depression;
·Deterioration of stabilised obsessive compulsive disorder.[1]
[1] Exhibit 11, s 37 T Documents, T 5, page 46.
The Applicant attributed his asserted conditions to being “…publicly belittled in front of colleagues and members of the general public. My professional competence was questioned. I was denied the opportunity to respond to the claims.”[2]
[2] Ibid, page 48.
On the date the claim was submitted, the Applicant was employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO). According to the claim form:
(i)the incident starting the chain of events leading to his injuries or illness arose from “poor behaviour by project manager…

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 Hooley and Comcare (Compensation)

Details

AGLC: Hooley and Comcare (Compensation) [2019] AATA 5176
Case: [2019] AATA 5176
Decision Date: 29 November 2019

CaseChat Overview and Summary

This matter concerned a review of Comcare's decision to cease paying compensation for medical expenses and incapacity payments to the applicant, Mr. Hooley. Comcare had initially accepted liability for Mr. Hooley's "adjustment disorder with disturbance of emotions" and aggravation of his "obsessive-compulsive disorder" (OCD), finding that his employment with CSIRO had contributed to these conditions. The dispute arose when Comcare determined that Mr. Hooley's employment no longer significantly contributed to his ongoing symptomatology. The review was heard by Theodore Tavoularis SM.

The court was required to determine whether Mr. Hooley continued to suffer from the effects of his accepted conditions, namely adjustment disorder and aggravated OCD. Crucially, the court had to assess whether his employment with CSIRO continued to contribute, to a significant degree, to any ongoing incapacity for work. This involved evaluating the medical evidence to ascertain the cause of his current symptomatology.

The court's reasoning focused on the medical evidence, particularly the opinions of consultant psychiatrists. The evidence indicated that Mr. Hooley had a history of OCD symptoms predating his employment with CSIRO, and that while his employment had aggravated these symptoms and contributed to an adjustment disorder, his current conditions were primarily attributable to factors outside of his employment. The court noted that the natural progression of his symptomatology meant that his employment was no longer the significant contributing factor to his ongoing issues.

The court affirmed Comcare's decision. It was not satisfied that Mr. Hooley continued to suffer from the effects of his accepted conditions to a degree that his employment remained a significant contributing factor to his incapacity. Therefore, compensation for medical expenses and incapacity payments was no longer payable under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

According to the Respondent, the medical evidence demonstrates that the natural progression or evolution of the Applicant’s symptomatology has been and is such that it can no longer be said that his “employment” at the CSIRO continues, to a significant degree, to contribute to his ongoing symptomatology.THE EVIDENCE OF THE APPLICANT – SUMMARY OF EVIDENCE IN CHIEF The Applicant gave evidence of experiencing OCD symptoms from his early teenage years. While a formal diagnosis occurred in 2005, it was not the Applicant’s evidence that his OCD symptoms interfered with his daily functioning. He spoke of a short-lived episode of depression in his final couple of years at school but that he had nothing in the way of substantial symptoms referable to depression prior to 2005. He joined the CSIRO in June 2002, aged 26 years. He did well in his allocated Information Technology (IT) role at the CSIRO and within a relatively short time became involved in the delivery of a major project in Canberra. There appears to be little in the way of OCD symptoms during his first three years with the CSIRO and there is no suggestion in his evidence that either OCD or any other psychological symptoms were interfering with his work performance. The Applicant was frank and forthright when speaking of how OCD symptoms had manifested in his life involving the performance of rituals and a compulsion to otherwise make sure certain tasks were completed in a certain way. The Applicant nevertheless continued to do well at the CSIRO and it was clear that he enjoyed both his work and the collegiality and camaraderie of his work colleagues. By 2005, the Applicant was beginning to experience difficulty in managing his OCD symptoms. There followed (in 2005) an initial referral to the consultant psychiatrist, Dr Jon-Paul Khoo. He said that at this time he was experiencing a depressed mood and that his symptoms for OCD appeared to intensify such that they were depleting his capacity to deal with them and that this, in turn, caused him to feel depressed. He sought Dr Khoo’s guidance and assistance in dealing with his OCD symptoms and the resulting melancholia. Dr Khoo opined that the Applicant was suffering from a depressed mood and that symptoms of OCD were most likely present. The Applicant was medicated for those symptoms and his evidence was that he improved very quickly and that he returned to his very high work performance levels because he felt the medication “just took away a lot of that background noise”[26] arising from meeting the requirements of the compulsions that the OCD had caused him to feel. [26] Transcript Day 1, page 19, lines 13-15. The positivity resulting from the Applicant’s on-going consultations with Dr Khoo and the prescribed medication meant that the by the end of 2006, the Applicant was feeling very comfortable and performing very well in his IT role at the CSIRO. He was so content at the CSIRO that he could see himself working in that role (or a derivative role) with that organisation right up to his retirement. With the help of Dr Khoo, the Applicant developed and implemented self-administered techniques whereby he disciplined himself not to engage in OCD rituals because he knew the self-perpetuating effect upon his symptoms were he to do so. This state of affairs continued into the middle of 2007 at which time his work manager resigned.

Decision

Reasons for decision

Both parties were (with respect) very ably represented by Counsel in the hearing before me. In terms of documentary material received into evidence, 26 exhibits were tendered,[7] ranging from the parties’ respective Statements of Facts, Issues and Contentions, the mandatory Tribunal (or T) Documents, and an array of medical opinions and reports. The hearing received lay oral evidence from the Applicant and expert oral evidence from (1) Dr Jon-Paul Khoo (consultant psychiatrist); (2) Dr Axel Estensen (consultant psychiatrist); and (3) Dr Aleksandra Isailovic (consultant psychiatrist). [7] See exhibit list attached to these Reasons and marked “Annexure A”.DECISION HISTORY The Respondent accepted liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on 8 September 2009.[8] The relevant decision-maker proceeded on the basis that (1) psychological conditions are determined with regard to the meaning of “disease” as defined in s 5B of the SRC Act, and (2) one of the two ultimately accepted conditions occurred in circumstances of aggravation as defined in s 4 of the SRC Act. That decision-maker found, on the balance of probabilities that the Applicant’s claimed condition was contributed to, in a significant degree, by his employment with the CSIRO. [8] Exhibit 13, Statement of Reasons in Liability decision dated 8 September 2009. The Respondent:(i)accepted liability for adjustment reaction with disturbance of emotions; and(ii)accepted liability for aggravation of obsessive-compulsive disorder (OCD);(iii)identified the date of the injury as 11 September 2008, that being the date on which the Applicant first sought treatment for the conditions accepted by the Respondent. On 6 August 2015, the Respondent issued a notice of intention notifying the Applicant that compensation may no longer be payable for the entitlements comprising (1) medical expenses and (2) incapacity pursuant to ss 16 and 19 of the SRC Act, respectively. Prior to finalising its notified position in a determination, the Respondent afforded the Applicant an opportunity to obtain and present further medical evidence to dissuade the Respondent from ceasing payment of compensation. It transpired that respective medical reports were obtained by the Applicant from the consultant psychiatrist, Dr Christopher Slack on 8 September 2015 and by the Respondent from Dr Aleksandra Isailovic (consultant psychiatrist) on 10 November 2015. Following its further review of the totality of the medical evidence, the Respondent determined on 27 January 2016 that no liability existed to pay compensation in respect of medical expenses (s 16 of the SRC Act) or incapacity (s 19 of the SRC Act). On 11 February 2016, the Applicant sought reconsideration of the Respondent’s determination dated 27 January 2016. On 11 March 2016, a delegate of the Respondent decided to affirm the determination.[9] In affirming the determination of 27 January 2016, the Respondent’s delegate said:“Based on the medical evidence before me, I am not satisfied that you continue to suffer from the effects of the accepted condition adjustment reaction with disturbance of emotions and aggravation of obsessive-compulsive disorder. I consider that your current conditions are related to a combination of factors outside your employment, rather than the effects of your compensable injury in 2007. On this basis, I am not satisfied that your employment continues to significantly contribute to your compensable injury sustained 13 September 2007. Therefore, it follows that compensation is not payable for the adjustment reaction with disturbance of emotions and aggravation of obsessive-compulsive disorder under sections 16 and 19 of the SRC Act.”[10][9] This reconsideration decision was made under s 62 of the SRC Act and is a “reviewable decision” as defined in s 60 of the SRC Act. Pursuant to s 64 of the SRC Act, the Tribunal has jurisdiction to review this reconsideration decision.[10] Exhibit 11, s 37 T Documents, T36, page 303.

Ratio Decidendi

Legal Principle Established

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