Karen Hutchinson and Comcare

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[2014] AATA 588 

Division

General Administrative Division

File Number

2013/5565

Re

Karen Hutchinson

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President S D Hotop

Date

22 August 2014

Place

Perth

The decision under review, being the reviewable decision of the respondent made on 21 July 2011, is varied by amending the description of the compensable mental injury suffered by the applicant to “major depressive disorder”, but is otherwise affirmed.

.....(Sgd) S D Hotop.......................

                S D Hotop
           Deputy President


CATCHWORDS

COMPENSATION – Commonwealth employees – applicant suffered mental ailments – respondent accepted liability to pay compensation to applicant for "major depressive disorder – single episode" - respondent subsequently accepted liability to pay compensation to applicant for "post-traumatic stress disorder" – date on which applicant first suffered compensable mental injury – description of first compensable mental injury amended to “major depressive disorder”- decision under review varied

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 5A(1), s 5B(1), s 7(4) and s 14(1)

REASONS FOR DECISION

Deputy President S D Hotop

22 August 2014

Introduction

  1. Karen Hutchinson (“the applicant”) has applied to the Tribunal for review of a “reviewable decision” made by an Independent Review Officer of Comcare (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) on 21 July 2011. That reviewable decision revoked a determination made by a delegate of the respondent on 23 May 2011 disallowing the applicant’s claim for compensation for “Depression & Anxiety” and, instead, accepted liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “a major depressive disorder – single episode from 31 January 2011 being the deemed date of injury for the purpose of the Act”.

  2. In her application for review the applicant stated her reasons for seeking review of the abovementioned reviewable decision as (relevantly):

    “ ·     Not the compensable injury I claimed for.

    ·Not the date of injury I claimed for.”

    The Evidence

  3. The evidence before the Tribunal comprised the “T Documents” (T1–T55, pp 1–439) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:

    ·Exhibit A1 tendered by the applicant;

    ·Exhibits R1–R4 tendered by the respondent; and

    ·the oral evidence of the applicant.

    The Factual Background

  4. The relevant factual background, as found by the Tribunal on the basis of the T Documents, is as follows

  5. On 16 February 2011 the applicant, who was at all material times employed by the respondent, lodged with the respondent a completed Claim for Workers’ Compensation form, signed by her and dated 8 February 2011, in which she indicated that (inter alia):

    ·she was claiming workers’ compensation for “Depression & Anxiety”;

    ·she was injured, or first noticed she was ill, on 5 March 2010;

    ·she first sought medical treatment for her injury or illness on 31 January 2011 from Dr Kathryn Dunne;

    ·when she was injured or contracted her illness she was working at her…

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Details
Case
[2014] AATA 588
Decision Date

CaseChat Overview and Summary

The case of Karen Hutchinson against Comcare was heard before the Administrative Appeals Tribunal. The applicant, who was employed by Comcare, sought workers’ compensation for a mental ailment resulting from an incident at a workplace training workshop. The primary legal issue was the identification of the date on which the applicant first suffered a compensable mental injury, and the nature of that injury. Initially, Comcare had accepted liability for a major depressive disorder but later acknowledged responsibility for post-traumatic stress disorder. The applicant contested the description of her primary mental condition and the date of injury as determined by Comcare.

The Tribunal examined the evidence provided by the applicant and Comcare, including medical reports and the applicant’s testimony. It found that the applicant first sought medical treatment for her mental condition on 31 January 2011, and that this date determined the onset of the compensable injury under the relevant legislation. The Tribunal also concluded that the applicant's primary mental condition was post-traumatic stress disorder, with major depressive disorder as a secondary condition. Consequently, the Tribunal varied the decision under review by amending the description of the compensable injury to "major depressive disorder," while affirming the date of injury as 31 January 2011.

The Tribunal's reasoning was grounded in statutory interpretation and the applicant's medical history. It determined that the date of first medical treatment was the critical factor for establishing the onset of the compensable injury. The evidence did not support the applicant’s claim that she suffered a compensable injury on 5 March 2010 due to the perceived death threat incident. Therefore, the Tribunal upheld the compensable injury date as 31 January 2011, while correcting the description of the injury to reflect the applicant's primary condition.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The evidence before the Tribunal comprised the “T Documents” (T1–T55, pp 1–439) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:·Exhibit A1 tendered by the applicant;·Exhibits R1–R4 tendered by the respondent; and·the oral evidence of the applicant.The Factual Background The relevant factual background, as found by the Tribunal on the basis of the T Documents, is as follows On 16 February 2011 the applicant, who was at all material times employed by the respondent, lodged with the respondent a completed Claim for Workers’ Compensation form, signed by her and dated 8 February 2011, in which she indicated that (inter alia):·she was claiming workers’ compensation for “Depression & Anxiety”;·she was injured, or first noticed she was ill, on 5 March 2010;·she first sought medical treatment for her injury or illness on 31 January 2011 from Dr Kathryn Dunne;·when she was injured or contracted her illness she was working at her usual workplace.In response to questions as to what she was doing at the time she was injured or contracted her illness, what event happened to cause her injury or illness, and what actually injured her or made her ill, the applicant stated as follows:“ Attending the ‘Respect and Diversity’ training workshop on 5/3/2010.The trainer … was discussing the various forms of bullying that might occur in the workplace. She asked the participants: ‘What might you say to someone you wanted to threaten in the workplace?’. [X], who I was sitting next to said very quietly and directly to me: ‘I’m going to fucking kill you!’I immediately drew the trainer’s attention and she asked [X] to contribute his ‘example’ to the group discussion. After a lengthy pause he repeated the statement he’d made to the entire group.My ‘anxiety’ state was precipitated by this event.” (T3) On 23 May 2011 a delegate of the respondent made a determination under the SRC Act disallowing the applicant’s “claim for compensation for: Major Depressive Disorder – single episode under section 14 of the … (SRC Act)”. (T21) Following a request by the applicant to the respondent for a reconsideration of the abovementioned determination of 23 May 2011, an Independent Review Officer of the respondent made a reviewable decision, dated 21 July 2011, under s 62 of the SRC Act revoking that determination and, instead, accepting liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “a major depressive disorder – single episode from 31 January 2011, being the deemed date of injury for the purpose of the Act”. (T24, pp 153-157). The respondent formally notified the applicant of that reviewable decision by letter dated 25 July 2011 (T24, p 152). On 4 June 2013 the applicant lodged with the respondent a further completed Claim for Workers’ Compensation form, signed by her and dated 30 May 2013, in which she indicated that she was claiming workers’ compensation for “Post Traumatic Stress Disorder, Major Depression” suffered by her in the circumstances referred to in her previous claim (see paragraph 5 above). The applicant likewise indicated that:·she was injured, or first noticed she was ill, on 5 March 2010;·she first sought medical treatment for her injury or illness on 31 January 2011 from Dr Kathryn Dunne. (T42)

Evidence

Evidence Before The Court

In her application for review the applicant stated her reasons for seeking review of the abovementioned reviewable decision as (relevantly):“ · Not the compensable injury I claimed for.·Not the date of injury I claimed for.”The Evidence The evidence before the Tribunal comprised the “T Documents” (T1–T55, pp 1–439) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:·Exhibit A1 tendered by the applicant;·Exhibits R1–R4 tendered by the respondent; and·the oral evidence of the applicant.The Factual Background The relevant factual background, as found by the Tribunal on the basis of the T Documents, is as follows On 16 February 2011 the applicant, who was at all material times employed by the respondent, lodged with the respondent a completed Claim for Workers’ Compensation form, signed by her and dated 8 February 2011, in which she indicated that (inter alia):·she was claiming workers’ compensation for “Depression & Anxiety”;·she was injured, or first noticed she was ill, on 5 March 2010;·she first sought medical treatment for her injury or illness on 31 January 2011 from Dr Kathryn Dunne;·when she was injured or contracted her illness she was working at her usual workplace.In response to questions as to what she was doing at the time she was injured or contracted her illness, what event happened to cause her injury or illness, and what actually injured her or made her ill, the applicant stated as follows:“ Attending the ‘Respect and Diversity’ training workshop on 5/3/2010.The trainer … was discussing the various forms of bullying that might occur in the workplace. She asked the participants: ‘What might you say to someone you wanted to threaten in the workplace?’. [X], who I was sitting next to said very quietly and directly to me: ‘I’m going to fucking kill you!’I immediately drew the trainer’s attention and she asked [X] to contribute his ‘example’ to the group discussion. After a lengthy pause he repeated the statement he’d made to the entire group.My ‘anxiety’ state was precipitated by this event.” (T3) On 23 May 2011 a delegate of the respondent made a determination under the SRC Act disallowing the applicant’s “claim for compensation for: Major Depressive Disorder – single episode under section 14 of the … (SRC Act)”. (T21) Following a request by the applicant to the respondent for a reconsideration of the abovementioned determination of 23 May 2011, an Independent Review Officer of the respondent made a reviewable decision, dated 21 July 2011, under s 62 of the SRC Act revoking that determination and, instead, accepting liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “a major depressive disorder – single episode from 31 January 2011, being the deemed date of injury for the purpose of the Act”. (T24, pp 153-157). The respondent formally notified the applicant of that reviewable decision by letter dated 25 July 2011 (T24, p 152).

Decision

Reasons for decision

Finally, the Tribunal notes that, on 4 September 2013, a delegate of the respondent made a determination accepting liability under s 14 of the SRC Act to pay compensation to the applicant for “Post-Traumatic Stress Disorder”, the “deem(ed) date of injury”, pursuant to s 7(4) of the SRC Act, being 31 January 2011 (see paragraph 9 above). The Tribunal also notes that the same delegate, by letter dated 27 September 2013, notified the applicant that she was satisfied that the applicant’s “primary condition is post traumatic stress disorder with a secondary condition of major depressive disorder” (see paragraph 12 above). That determination, and the subsequent letter, however, are not (and could not validly be) the subject of the application for review in this proceeding.Decision For the above reasons, the decision under review, being the reviewable decision of the respondent made on 21 July 2011, is varied by amending the description of the compensable injury suffered by the applicant to “major depressive disorder”, but is otherwise affirmed.

Ratio Decidendi

Legal Principle Established

It is common ground that each of those mental injuries is a “disease” as defined in s 5B(1) of the SRC Act. That being the case, pursuant to s 7(4) of the SRC Act, the date on which, for the purposes of that Act, the applicant “shall be taken to have sustained [each] injury”, is the date on which (relevantly):“ (a) the [applicant] first sought medical treatment for the disease, …; or(b)the disease … first resulted in the incapacity for work, or impairment of the [applicant];whichever happens first.”Consideration and Findings It is common ground that the applicant sought medical treatment for a relevant mental ailment on 31 January 2011 when she consulted her general practitioner, Dr Dunne, who described her presentation as involving depression and anxiety and referred her to a psychiatrist and to a psychologist. Although the applicant initially submitted that she (relevantly) first sought medical treatment on 13 January 2011 when she consulted Dr Lee at St Vincent’s Hospital and was prescribed (inter alia) “temazepam”, she ultimately did not press that submission. As regards that consultation, the Tribunal, having considered Dr Lee’s contemporaneous clinical notes (part of Exhibit R3), is of the opinion that, on that occasion, the applicant sought treatment for a physical condition – in particular, abdominal discomfort – and, although she was then prescribed medication which may be appropriate for the treatment of insomnia (which may be related to a psychological condition), the Tribunal is not satisfied that she “sought medical treatment for” a mental ailment, within the meaning of s 7(4)(a) of the SRC Act, on that occasion. Accordingly, the Tribunal is satisfied, and finds, that the applicant “first sought medical treatment for” a relevant mental ailment (being a “disease” as defined in s 5A(1) of the SRC Act), within the meaning of s 7(4)(a) of the SRC Act, on 31 January 2011. For the purposes of the application of para (b) of s 7(4) of the SRC Act, the following questions arise:·did either or both of the relevant diseases (namely, major depressive disorder and post-traumatic stress disorder) “result in the incapacity for work, or impairment of the [applicant]” before 31 January 2011? and, if so·on which date did either of those relevant diseases “first result in the incapacity for work, or impairment of the [applicant]”? The applicant’s case rested entirely on her submission that she suffered post-traumatic stress disorder on 5 March 2010 by reason of the Director [X], who was sitting next to her at a training workshop, leaning towards her and quietly saying to her “I’m going to fucking kill you” (“the perceived death threat incident”), and that she immediately suffered mental impairment as a result, and, in support of that submission, she primarily relied on the medical reports of Dr Dellar dated 31 January 2013 (T38) and 28 May 2013 (Exhibit R2) (set out in paragraphs 33 and 34 above).