Humphrey and Comcare (Compensation) - [2016] AATA 783

Humphrey and Comcare (Compensation) [2016] AATA 783 (6 October 2016)
Division:  GENERAL DIVISION
File Number:  2015/1773
Re:  IAN HUMPHREY
APPLICANT

And:COMCARE
RESPONDENT

DECISION
Tribunal  Deputy President S A Forgie
Date  6 October 2016
Place  Melbourne

The Tribunal decides to:
affirm the reviewable decision of a delegate of the respondent dated 20 February 2015 affirming its earlier decision dated 7 October 2014 dismissing the applicant’s claim.

………[sgd]…………….
Deputy President
CATCHWORDS – COMPENSATION – whether applicant gave notice of injury as soon as practicable after becoming aware of it – whether respondent prejudiced if late notice treated as sufficient – whether applicant’s failure to give notice resulted from ignorance, mistake or from any other reasonable cause – decision affirmed

LEGISLATION
Commonwealth Employees’ Compensation Act 1930; s 16
Compensation (Commonwealth Government Employees) Act 1971; ss 5(1), 53(1), 53(2), 53(4)
Safety, Rehabilitation and Compensation Act 1988; ss 4(1), 5B, 14(1), 53, 53(3), 54(1), 124(1), 124(2), 124(3), 126(1)(c)
CASES

Australian National Airlines Commission v Cassidy [1964] HCA 32; (1964) 110 CLR 172
Banks v Comcare [1996] FCA 382
Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495
FXWZ and Comcare [2011] AATA 364
Re Rees and Military Rehabilitation and Compensation Commission [2005] AATA 690; (2005) 88 ALD 148
Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382; (1989) 19 ALD 665
The Commonwealth v. Connors [1989] FCA 78; (1989) 86 ALR 247; 10 AAR 395
REASONS FOR DECISION

Mr Humphrey was an employee of the Commonwealth Bank of Australia (CBA) from 3 March 1970 to 5 February 1988. In a claim completed on 15 April 2014, Mr Humphrey claimed compensation for post traumatic stress disorder (PTSD) with secondary anxiety and depression that he attributed to his being threatened and robbed while serving a customer at the Huntingdale branch of the CBA. He also stated in his claim that he had first noticed that he was injured or ill in 1970/1971 and first sought treatment for it in 1973/1974 from Dr Ryall. His PTSD and symptoms of anxiety and depression had been made worse by successive robberies and other work-related events. A delegate of Comcare refused Mr Humphrey’s claim on the basis that, under s 53 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), he had not given notice of his injury as soon as practicable after he became aware of it and that it was prejudiced by his not having done so. The SRC Act does not apply in relation to an injury unless notice has been given or taken to have been given. The delegate’s decision dated 7 October 2014 was affirmed on review by another delegate in a decision dated 20 February 2015. I have decided to affirm the reviewable decision dated 20 February 2015.

LEGISLATIVE FRAMEWORK

SRC Act

Section 14(1) of the SRC Act states that:
“Subject to this Part, Comcare is liable to pay compensation in…

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 Humphrey and Comcare (Compensation)

Details

AGLC: Humphrey and Comcare (Compensation) [2016] AATA 783
Case: [2016] AATA 783
Decision Date: 6 October 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mr Humphrey against a decision by Comcare regarding his claim for compensation. The dispute centred on whether Mr Humphrey had provided notice of his injury, specifically Post Traumatic Stress Disorder (PTSD) with anxiety and depression, as soon as practicable after becoming aware of it, and whether Comcare had been prejudiced by any late notification. The case was heard by Deputy S A Forgie P.

The court was required to determine the meaning of "injury" and "disease" within the context of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) and its predecessor, the *1971 Act*. Specifically, the court needed to consider when Mr Humphrey became aware that he was unwell and that this unwellness arose from or was contributed to by his work with the CBA, irrespective of whether a formal diagnosis of PTSD had been made at that time.

Deputy S A Forgie P considered the definition of "disease" as an "ailment" or aggravation of an ailment, referencing the decision in *Comcare v Mooi*. The court affirmed that the terms used in the SRC Act to define mental conditions should be understood according to their ordinary usage. It was held that a worker could demonstrate a mental ailment even if their condition did not align with a recognised medical label, provided they could show their state was outside the boundaries of normal mental functioning and behaviour. The court affirmed the prior decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Humphrey continues to be under the care of Dr Praveen Thottappilil, Consultant Psychiatrist. Dr Thottappilil referred to multiple traumas endured by Mr Humphrey while employed by the CBA, ANZ and Bendigo Bank resulting in his suffering PTSD. His report dated 16 March 2015 indicated that he had a continuing role in Mr Humphrey’s care and treatment.[47][47] Exhibit 1; LM-13 at 7-8CONSIDERATION Comcare does not dispute that Mr Humphrey suffers from psychiatric conditions that may generally be described as PTSD with anxiety and depression. I do not need to make a finding that he does suffer from those conditions or that all or any of them are an injury or disease within the meaning of the SRC Act or its predecessor, the 1971 Act. Section 53, whether in the SRC Act or in the 1971 Act, is concerned with a question that arises before those findings need to be made. What is relevant is when Mr Humphrey came to be aware that he was unwell and that his being unwell arose out of, or was contributed to by, his work with the CBA. A disease is, after all, an “ailment” or an aggravation of an ailment.[48] [48] SRC Act; ss 4(1) and 5B and see also 1971 Act; s 5(1) This definition was considered by Drummond J in Comcare v Mooi[49] (Mooi). His Honour considered the meaning of the word “ailment” and the manner in which the definition of “disease” is to be understood. He began by looking at the ordinary meanings of the word and the difficulties in determining whether a person is suffering from a disease:“… The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent, from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment’ (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.There may be difficulties in a particular case in determining whether a bodily condition, ie, one not involving any effect on a person’s mental faculties, amounts to a disease; it can also be difficult to determine whether a worker is suffering from a disease in the sense of a mental ailment. Medical opinion changes too: regularly encountered signs may eventually come to be acknowledged as comprising a disease or as symptomatic of an underlying disease when previously, medical opinion rejected that notion. But these considerations, in my opinion, provide no ground for disregarding the meaning given by the various definition provisions to the term ‘injury’ for the purposes of s 14(1) of the Act.”[50][49] [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495[50] [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495 at [10]-[11]; 442-443; 693-694; 163-164; 498 Drummond J went on to conclude that the words used in the SRC Act to define the concepts should be understood according to their ordinary usage and the context in which they are used in the SRC Act:“… But in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act [1988] to define the various forms of mental condition that can amount to ‘injuries’ compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. …”[51][51] [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495 at [12]; 443-444; 694; 164-165; 499