Horne and Comcare (Compensation)

Case [2018] AATA 4021

Horne and Comcare (Compensation) [2018] AATA 4021 (25 October 2018)

Division:GENERAL DIVISION

File Number(s):      2016/4376 & 2017/1307

Re:Daniel Horne

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:25 October 2018

Place:Brisbane

I affirm the decisions under review dated 1 August 2016 and 22 February 2017.

...........................[SGD]................................

Deputy President Dr P McDermott RFD

Catchwords

COMPENSATION – workers’ compensation claims for psychological condition and impotency condition – previously accepted workers’ compensation claim for back injury – whether the conditions can be classified as injuries or diseases – whether the employee’s employment contributed to a significant degree   

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 358
Beezley v Repatriation Commission (2015) 150 ALD 11
Comcare v Mooi (1969) 69 FCR 439
Commissioner of Police v David Rea [2008] NSWCA 199
EMI (Australia) Ltd v Bes (1970) 44 WCR 114

Papaioannou and Australian Postal Corporation [2015] AATA 370

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

25 October 2018

BACKGROUND

  1. The applicant, Mr Daniel Horne, was employed as an aviation fire fighter for the Royal Australian Air Force from 1994 and 2005, and then for Airservices Australia from 2005 until 12 March 2015.   

  2. The applicant suffered a back injury on 13 September 2013 as a result of his employment with Airservices Australia and subsequently underwent surgery on 22 February 2014. The Tribunal issued terms of agreement dated 25 March 2015 with the consent of the parties[1] that the respondent was liable to pay the applicant compensation for his back injury classified as an “aggravation of displacement of intervertebral disc – lumbar”.

    [1] Exhibit A, T-Documents, T27, p.863.

  3. The Tribunal has to determine whether the respondent is liable to pay compensation to the applicant in relation to a psychological condition and an impotency condition. I also mention that at the outset of the hearing the applicant announced that the claims under sections 16 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) were withdrawn in writing (AAT Ref: 2017/1303).

    RELEVANT CLAIM HISTORY

    Psychological Condition

  4. On 15 April 2016 a delegate for the respondent rejected the applicant’s claim for “adjustment disorder and depression” as a secondary condition to his accepted claim for an “aggravation of displacement of intervertebral disc – lumbar”.[2]  

    [2] Exhibit A, T-Documents, T101.

  5. On 1 August 2016 a delegate for the respondent affirmed the decision under review to deny liability for the applicant’s secondary psychological condition.[3]

    [3] Exhibit A, T-Documents, T108.

  6. On 17 August 2016 the applicant applied for review of the decision of the delegate to this Tribunal.[4]

    [4] Exhibit A, T-Documents, T1.

    Impotency Condition

  7. On 9 January 2017 the respondent denied liability for the applicant’s impotency condition secondary to his accepted claim for an “aggravation of displacement of intervertebral disc – lumbar”.[5]

    [5] Exhibit B, Supplementary T-Documents, ST11.

  8. On 22 February 2017 a delegate for the respondent affirmed the decision under review to deny liability for the applicant’s impotency condition.[6]

    [6]…

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Details
AGLC
Horne and Comcare (Compensation) [2018] AATA 4021
Case
[2018] AATA 4021
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a claim for workers' compensation by the applicant, Mr. Horne, against Comcare. Mr. Horne sought compensation for a psychological condition and an impotency condition, alleging these arose from a previously accepted workers' compensation claim for a back injury. The central dispute was whether these subsequent conditions could be classified as injuries or diseases under the relevant Act and whether Mr. Horne's employment contributed to them to a significant degree.

The Tribunal was required to determine if the applicant's psychological condition and impotency condition qualified as compensable injuries or diseases under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Specifically, the Tribunal had to assess whether the applicant's employment contributed to these conditions to a "significant degree," which is defined by the Act as substantially more than material. The applicant relied on section 5A(1)(a) for his psychiatric condition and section 5A(1)(b) for his impotency condition.

The Tribunal considered evidence from the applicant and an independent psychiatrist, Associate Professor Sahoo. While Dr. Sahoo initially diagnosed a "major depressive disorder, moderate depression, due to a medical condition which is the back injuries and the pain associated with it," he later revised this diagnosis to remove the reference to a "general medical condition," acknowledging the influence of the applicant's diabetes. However, Dr. Sahoo maintained his opinion regarding causation, confirming that the applicant experienced irritable depression and had lost interest in daily activities. Despite this, the Tribunal ultimately found that the applicant's psychological condition and impotency condition were not related to his back injury.

The Tribunal affirmed the decisions under review dated 1 August 2016 and 22 February 2017, meaning Comcare's previous decisions to deny compensation for the psychological and impotency conditions were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The term “significant degree” is defined in subsection 5B(3) of the Act to mean a degree that is substantially more than material. EVIDENCE Extensive material has been filed in relation to these applications. The relevant evidence regarding the applicant’s psychological condition and impotency condition are outlined below. Psychological Condition The applicant states that his back injury had a huge impact on his emotional state to the point that he became angry, frustrated, emotional and suicidal. [8] He remarked that the injury stopped him from being able to do things that made him feel proud and valuable that he previously did.[9] [8] Exhibit E, Applicant’s Supplementary Statement of Evidence.[9] Exhibit E, Applicant’s Supplementary Statement of Evidence. The applicant states that prior to his injury he never had issues with being angry and frustrated but this changed following the injury as a result of the stress of dealing with the injury and the impacts it was having on his ability to do things he once normally did. [10] The applicant describes he would put on a “brave face” in public but took his anger and frustrations out at home subsequently impacting on his family’s wellbeing and his marriage.[11] He states that in around December 2013 he began to see a counsellor with his wife which was paid for by Airservices Australia. [12] The applicant explains that he did not submit a report about his mental state as he was fearful of losing his job and being judged by his managers and colleagues.[13] [10] Exhibit E, Applicant’s Supplementary Statement of Evidence.[11] Exhibit E, Applicant’s Supplementary Statement of Evidence.[12] Exhibit D, Applicant’s Statement of Evidence. [13] Exhibit D, Applicant’s Statement of Evidence. The applicant states that throughout 2013 and 2014 he experienced a variety of emotions including feeling hurt when he was deliberately excluded from the celebrations when his crew won “Crew of the Year”. The applicant explains that his supervisor made it clear that he did not deserve to be included in the celebrations as he had been off work due to his injury.[14][14] Exhibit D, Applicant’s Statement of Evidence. The applicant states that he struggled to get through every day once he returned to work and when his employment was eventually terminated in 2015, he felt “weak and useless”.[15] He describes feeling humiliated as a result of not being able to provide for the family.[16] He was also not able to have the same role in his children’s sports as he once previously had. [17] [15] Exhibit E, Applicant’s Supplementary Statement of Evidence.[16] Exhibit E, Applicant’s Supplementary Statement of Evidence.[17] Exhibit E, Applicant’s Supplementary Statement of Evidence. It was after this that the applicant was referred to Mr Gos Shahinper, psychologist for treatment.[18] The applicant has been seeing Mr Shahinper since 4 May 2015[19] and that in approximately May 2015 he was diagnosed with an “adjustment disorder and major depression”.[20] In September 2015, Mr Shahinper suggested the applicant get an assistance dog to help manage his anxiety. The applicant funded this himself in March 2016.[21][18] Exhibit E, Applicant’s Supplementary Statement of Evidence.[19] Exhibit D, Applicant’s Statement of Evidence; Exhibit A, T-Documents, T103, p.1250.[20] Exhibit D, Applicant’s Statement of Evidence.[21] Exhibits D and E.

Decision

Reasons for decision

For the reasons given above, I do not accept that the applicant’s psychological condition and impotency condition are related to his back injury. DECISION I affirm the decisions under review dated 1 August 2016 and 22 February 2017.

Ratio Decidendi

Legal Principle Established

The respondent also contends that the applicant’s evidence is unreliable particularly with regard to the manner in which he gave evidence, not giving a proper account of his life activities (e.g. bees, dog rescue group, beach and other activities and socialising) and attempting to place the respondent in a poor light.CONSIDERATION The issue before this Tribunal is whether the respondent is liable to pay the applicant compensation in accordance with the Act with respect to a psychological condition and an impotency condition. The applicant relies on section 5A(1)(a) of the Act in relation to his psychiatric condition and section 5A(1)(b) in relation to his impotency condition. As outlined previously, the applicant’s initial claims made under sections 16 and 29 of the Act were withdrawn. Psychological Condition The applicant has contended that by no later than December 2014, probably earlier but certainly by then, the applicant was suffering the effects of a depressive psychiatric condition and the psychiatric condition was contributed, to a significant degree, by the compensable injury and, therefore, is itself a disease under the Act. The applicant called Associate Professor Sahoo, psychiatrist, who confirmed that in his report he made a diagnosis of “major depressive disorder, moderate depression, due to a medical condition which is the back injuries and the pain associated with it”. Dr Sahoo stated that he would revise the diagnosis by striking out the words “due to a medical condition” and explained the reasons for the revision of the diagnosis: “I have, you know, read Dr Wasim Shaikh’s further report that he has been asked to comment on after my report and I have taken his suggestions on board and therefore I would remove the, “due to general medical condition” off. The reason why I had put it in the first place was that I specialise in medical disorders, so the influence of medical disorders on psychiatry and I believed that a large extent of what Mr Horne was undergoing was also because of the uncontrolled diabetes that he was having and because I am quite well aware to the research behind diabetes and depression. Therefore, I had put it as, ‘due to general medical condition’”. Dr Sahoo also remarked “if we were to go strictly by the classificatory system, it would be moderate depressive disorder”. Dr Sahoo also confirmed that the amendment of his diagnosis did not cause him to change his opinion with regards to causation. Dr Sahoo confirmed that his diagnosis was made under DSM-5, and agreed that under DSM-5 the diagnostic criteria include that a person is in a depressed mood most of the day, nearly every day. Dr Sahoo confirmed that the applicant stated he was depressed most days but his depression is more about irritable depression characterised mostly by an irritable mood, rather than a purely depressed mood. Dr Sahoo also confirmed that the applicant told him that he has lost all interest in the activities of his day-to-day life.