HSDR and Comcare (Compensation) - [2017] AATA 779

HSDR and Comcare (Compensation) [2017] AATA 779 (29 May 2017)
Division:GENERAL DIVISION
File numbers: 2015/2267, 2015/2272, 2015/2273 and 2016/3439
HSDR
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr James Popple, Senior Member
Date:29 May 2017
Place:Canberra

1.In application 2016/3439, Comcare’s decision on 23 June 2016 is set aside and, in substitution, the following decision is made:
The applicant’s ailment is still contributed to in a material degree by her employment by the Commonwealth. Comcare remains liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 to pay the applicant compensation in respect of her injury.
2.In applications 2015/2267, 2015/2272 and 2015/2273, Comcare’s decisions on 28 April 2015 are affirmed.

........................[SGD]................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — Comcare accepted liability for applicant’s psychological condition, contributed to in a material degree by her employment — applicant’s condition not improved after almost ten years — whether applicant’s condition still contributed to in a material degree by her previous employment — whether applicant continues to suffer a “disease”, regardless of whether that contribution continues — whether applicant entitled to compensation for cost of gym membership — whether applicant entitled to compensation for cost of household services — whether applicant entitled to compensation for cost of treatment for bruxism.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A, 5B, 14, 16, 24, 27, 29
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, Schedule 1, items 5, 6, 11, 41, 42
Veterans’ Entitlements Act 1986, s 196B

CASES
Comcare v Sahu-Khan (2007) 156 FCR 536
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Hopkins and Comcare [2016] AATA 742
Howes v Comcare [2016] FCA 1521
Prain and Comcare [2016] AATA 459
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (fifth edition, 2013)

REASONS FOR DECISION
Dr James Popple, Senior Member
29 May 2017
Summary

The applicant worked in an agency of the Commonwealth (the agency). Comcare accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) to pay the applicant compensation for a psychological injury that she suffered in 2006. In 2016, Comcare decided that it was no longer liable to pay compensation. The applicant still suffers from a psychological condition but, Comcare says, her condition is no longer contributed to in a material degree by her employment by the agency.
The applicant’s current condition is still contributed to in a material degree by her perception of her employment by the agency. Comcare is still liable to pay the applicant compensation under s 14 of the SRC Act.
However, the applicant is not entitled to compensation for the cost of gym membership, because an exercise program would not be medical treatment obtained in relation to her injury for the purposes of s 16 of the SRC Act. And the applicant is not entitled to compensation for the cost of household services, because she does not…

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 HSDR and Comcare (Compensation)

Details

AGLC: HSDR and Comcare (Compensation) [2017] AATA 779
Case: [2017] AATA 779
Decision Date: 29 May 2017

CaseChat Overview and Summary

This matter concerned an application by HSDR (the applicant) for compensation from Comcare. The applicant had previously been found to have suffered a chronic adjustment disorder with anxious and depressed mood, which was materially contributed to by her perception of her Commonwealth employment. The dispute before the Administrative Appeals Tribunal (AAT) was whether Comcare remained liable to pay compensation, given its assertion that the applicant's condition was no longer materially contributed to by her employment, and whether the applicant was entitled to compensation for a gym program, household services, and bruxism treatment.

The AAT was required to determine two primary legal issues. Firstly, whether Comcare's liability to pay compensation continued, specifically addressing whether the applicant's accepted psychological condition was still materially contributed to by her previous employment. Secondly, if Comcare's liability was established, the Tribunal had to consider the applicant's entitlement to specific forms of compensation: for a gym program under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), for household services under section 29 of the SRC Act, and for bruxism treatment under sections 14 and 16 of the SRC Act.

The Senior Member found that the applicant was not entitled to compensation for the cost of a gym membership, as an exercise program was not considered medical treatment for the purposes of section 16 of the SRC Act. Similarly, the applicant was not entitled to compensation for household services because she did not reasonably require them under section 29. Furthermore, Comcare was not liable to pay for bruxism treatment, as bruxism was determined not to be an injury arising out of, or in the course of, the applicant's employment for the purposes of the SRC Act. The Tribunal's reasoning focused on the specific requirements and definitions within the relevant sections of the SRC Act concerning the nature of the injury, the necessity of the services or treatment, and the causal link to employment.

Orders

Orders of the court

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Background

Background to the litigation

However, the applicant is not entitled to compensation for the cost of gym membership, because an exercise program would not be medical treatment obtained in relation to her injury for the purposes of s 16 of the SRC Act. And the applicant is not entitled to compensation for the cost of household services, because she does not reasonably require household services for the purposes of s 29. And, Comcare is not liable to pay the applicant compensation for bruxism treatment, because bruxism is not an injury arising out of, or in the course of, her employment for the purposes of the SRC Act.Background “HSDR”[1] (the applicant) was a public servant from 1991 until 2000. From 2001 until 2004, she worked in the private sector, including running her own consulting business for some of that time. She rejoined the public service in 2005. She was employed by the agency from 2006 until April 2008. She has not worked since.[1] On 30 March 2017 (the last day of the hearing), I directed, pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, that the disclosure of the applicant’s name, or any information tending to reveal her identity, be prohibited, and that she be identified by a pseudonym. I have withheld some relevant factual detail from these reasons for decision, to ensure that the applicant cannot be identified from these reasons. On 16 May 2008, the applicant made a claim for compensation for “workplace stress, adjustment disorder with anxiety”. Initially, Comcare refused her claim. However, on 25 June 2010, the Tribunal,[2] with the agreement of the applicant and Comcare, decided that:·On 27 July 2006, the applicant suffered “a chronic adjustment disorder with anxious and depressed mood (the injury) that was materially contributed to by her perception of her employment by the Commonwealth”.·Comcare is liable to pay compensation for the injury pursuant to s 14 of the SRC Act.[2] Creyke SM, under s 42C(2) of the Administrative Appeals Tribunal Act 1975.Applications 2015/2267, 2015/2272 and 2015/2273 On 30 April 2013, the applicant applied for compensation for a gym program under s 16 of the SRC Act. On 7 April 2014, Comcare determined that no such compensation was payable. On 3 March 2014, the applicant applied for compensation for household services under s 29 of the SRC Act. On 3 March 2015, Comcare determined that no such compensation was payable. On 25 March 2014, Comcare agreed to pay for a dental assessment of the applicant regarding “tooth grinding”, noting that a “treatment plan [was] to be submitted for consideration”. It appears that Comcare treated a medical certificate, provided by the applicant, as being an application for compensation for the costs of dental treatment for bruxism under s 16 of the SRC Act. On 3 March 2015, Comcare determined that no such compensation was payable. On 10 March 2015, the applicant requested a reconsideration of each of those determinations. On 28 April 2015, Comcare varied the determination about dental care (denying liability under s 14) and affirmed the other two determinations.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 4 July 2016, the applicant applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decisions under review The decisions under review are Comcare’s decisions:·on 28 April 2015, affirming its decisions that it is not liable to pay the applicant compensation for:oa gym program under s 16 of the SRC Act;ohousehold services under s 29; andotreatment for bruxism under s 14; and·on 23 June 2016, affirming its decision that the applicant no longer suffers from the effects of her accepted condition.Issues The applicant and Comcare agree that the applicant still suffers from a psychological condition. But, Comcare says that her condition is no longer contributed to in a material degree by her employment. It follows, Comcare says, that Comcare is no longer liable to pay her compensation under the SRC Act. So, the issues in this review are these:·Is Comcare still liable to pay the applicant compensation?·If so, is she entitled to compensation:ofor the cost of her gym program, under s 16 of the SRC Act;ofor the cost of household services, under s 29;ofor the cost of treatment for bruxism, under ss 14 and 16?The applicant’s medical history I have before me many medical reports and records about the applicant. In addition, the following people gave evidence at the hearing:·the applicant;·her husband;·Dr Elizabeth Fraser, a general practitioner, who has treated the applicant since 2006;·Ms Carmel O’Sullivan, a clinical psychologist, who has treated the applicant since 2008;·Ms Megan Layton, a mental health social worker, and a meditation, mindfulness and yoga teacher, who has been providing services to the applicant since 2011;·Dr Delta Matias, a psychiatrist, who treated the applicant from 2010 until 2015;·Dr William Knox, a consultant psychiatrist, who saw the applicant on 29 April 2015;·Associate Professor Michael Robertson, a consultant psychiatrist, who saw the applicant on 20 November 2015; and·Dr Deepinder Miller, a consultant psychiatrist who saw the applicant on 21 October 2016. I make the findings set out in [20]–[32] below, on the balance of probabilities. These findings are based on the medical records before me, and on the evidence of the witnesses listed at [18]. Many of these findings are based on notes in those medical records about what the applicant reported at various times. These findings are generally not contested. As noted above,[3] in May 2008, the applicant and Comcare agreed that the applicant suffered a psychological injury in July 2006 that was materially contributed to by her perception of her employment by the Commonwealth. She claimed—and still claims—that she was subjected to bullying and harassment when she worked for the agency.[3] See [5] above. In July and August 2009, the applicant was experiencing financial difficulties, and was stressed by a debt collector arriving at her home. In May 2010, Dr Graham George, a consultant psychiatrist, noted that it appeared that the applicant had been “subject to childhood sexual abuse by a family friend at the age of 11” and to “inappropriate attention by her father”, and that the applicant’s mother had not believed her when she reported the abuse.

Ratio Decidendi

Legal Principle Established

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