Hutchinson and Comcare (Compensation) [2018] AATA 4357 (23 November 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5357, 2017/6813
Re:Karen Hutchinson
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:23 November 2018
Place:Perth
The Tribunal affirms the decisions the subject of both applications.
.............................[sgd]...........................................
Deputy President Boyle
CATCHWORDS
WORKERS’ COMPENSATION – Commonwealth Employee – Safety, Rehabilitation and Compensation Act – DSM-IV and DSM-V – whether Applicant suffered an injury – whether there is a need for an “accepted injury” – need for claim for the injury to have been made – Posttraumatic Stress Disorder – Major Depressive Disorder – mixed subjective and objective test for traumatic event – whether injury contributed to in a significant degree by employment – contribution of stress of compensation proceedings and other litigation – decisions the subject of both applications affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
(Cth) – s 5A, s 5B, s 5B(1), s 6,
s 6(1)(f), s 14, s 16, s 16(1), s 20, s 54, s 54(1), s 54(2)
Superannuation Act 1990 (Cth)
Veterans’ Entitlement Act 1986 (Cth)CASES
Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430
Dunstan and Comcare [2012] AATA 567
Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533
Prain v Comcare [2017] FCAFC 143
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
Stevens and Repatriation Commission [2017] AATA 2419
Stoddart v Repatriation Commission (2003) 197 ALR 283; [2003] FCA 334
Wiegand v Comcare Australia (2003) 72 ALD
Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th edition, American Psychiatric Association Publishing, 1994)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edition, American Psychiatric Association Publishing, 2013)
REASONS FOR DECISION
Deputy President Boyle
23 November 2018
THE APPLICATIONS
The Applicant seeks the review of two decisions of the Respondent.
Application 2017/5357
The reviewable decision dated 22 August 2017 (R4, T43) affirmed a determination dated 20 July 2017 (R4, T39) that the Applicant had no entitlement to compensation for medical treatment under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) or to incapacity payments under s 20 of the SRC Act in relation to the Applicant’s accepted “Post Traumatic Stress Disorder” (PTSD) and “Major Depressive Disorder” conditions.
Application 2017/6813
On 1 October 2017 the Applicant wrote to the Respondent claiming compensation for a new injury, namely a “relapse” of her Major Depressive Disorder (R5, T6). The Applicant claimed that she suffered a relapse as a result of a consultation with Dr Catherine Brooker, her treating general practitioner, on 22 May 2017. The Applicant claimed that her new injury arose out of, or in the course of, her employment by virtue of s 6 of the SRC Act, because the injury was sustained while she was “at a place for the…
Keep reading for free
Create a free CaseChat account to read Hutchinson and Comcare (Compensation) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] AATA 4357
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Tribunal were whether the Applicant continued to suffer from an injury, specifically PTSD or Major Depression, for which a claim had been made, and whether liability ought to be accepted for an alleged aggravation of her Major Depressive Disorder. The Tribunal was required to determine if the Applicant's current mental health issues constituted a "relevant injury" as defined by section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and if so, whether her employment contributed to that injury to a significant degree.
The Tribunal's reasoning focused on the medical evidence, particularly reports from Dr Jonathan Spear. While Dr Spear's earlier reports had indicated diagnoses consistent with Major Depressive Disorder and PTSD, his later reports, including a supplementary report, cast doubt on whether the Applicant's symptoms met the diagnostic criteria for Major Depressive Disorder as defined by the DSM. Dr Spear noted that while the Applicant had experienced episodic depressive symptoms, her clinical signs were not consistently consistent with the disorder, and he considered that her Major Depressive Episode may have resolved, being superseded by Agoraphobia. Furthermore, Dr Spear indicated that even if atrial flutter were excluded as a contributor to her agoraphobia, the degree of employment contribution to her mental health condition would be material but not significant, given other personal stressors and her vulnerability.
Ultimately, the Tribunal was not satisfied that the Applicant's current mental health issues were contributed to, to a significant degree, by her employment. Consequently, the Tribunal found that the Applicant did not suffer from a relevant injury, namely PTSD or Major Depression, and therefore affirmed Comcare's decisions to reject the claims.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Dr Spear provided a supplementary report dated 17 August 2018 (R3). In that report Dr Spear largely clarified and confirmed some of what he said in his report of 21 February 2018. He did not examine the Applicant again for the purpose of preparing this supplementary report. He did provide the following clarifications:If atrial flutter was excluded as a contributor to Ms Hutchinson’s agoraphobia condition, I would consider that her degree of employment contribution remained material, but not significant. This is because there are many at least material causes of her mental health condition including personal stressors, and her vulnerability to develop mental health disorder was evident with cognitive distortions.(page 3)…In your report of 21 February 2018, you form the opinion that the applicant would not have satisfied the criteria for major depressive disorder. This appears to be at odds with your earlier report in 2011 which noted:My diagnosis according to DSM-IV TR is as follows:Axis I: Major Depressive disorder, single episode, chronic, atypical features...Symptoms are due to major depressive disorderMs Hutchinson appears to have a Major Depressive Episode, a mental health condition. There was a delay in treatment because of denial. In addition, this is aggravated by an avoidant coping strategy which may also be delaying recovery.In your 2012 report you noted:My diagnosis using DSMIV is now as follows:Axis I: Major depressive disorder in partial remission; Agoraphobia with panic disorderCan you please advise whether you maintain the position that the applicant has never suffered from major depressive disorder? If so, can you please advise what has caused you to change your opinion in your latest report?Ms Hutchinson has had episodic depressive symptoms such as low mood, subjective impaired concentration, suicidal thoughts, fatigue and insomnia. As stated in my report dated 8 February 2018:‘Although she has been diagnosed as having a major depressive disorder her symptoms and history did not appear to be consistent with major depressive disorder as defined by DSM’.At the time of my first assessment in September 2011, I considered that the symptoms of low mood, weight gain, insomnia, social anxiety, intrusive thoughts, lethargy, poor concentration and suicidal thoughts were most likely consistent with resolving major depressive disorder, but her only clinical signs of major depressive disorder were low mood and soft speech.In 2012 and 2018 during her assessments she had no clinical signs of major depressive disorder.In 2012, she had clinical signs of anxiety disorder with a fine tremor, tension and anxious speech.In 2018, she had no observable signs of generalised anxiety disorder, but she did appear emotionally detached, consistent with her complaints of dissociation. She had cognitive distortions including a sense of shame, sense of injustice, projection, catastrophic thinking, ideas of helplessness and ideas of hopelessness.Another explanation would be that she had a major depressive episode, which has resolved, and which has been superseded by Agoraphobia.CONSIDERATION