KBJP and Comcare (Compensation) - [2022] AATA 2466

KBJP and Comcare (Compensation) [2022] AATA 2466 (9 May 2022)
AppID:  KBJP and Comcare
MatterType:   Compensation
Division:GENERAL DIVISION
File Number(s):      2019/7963
Re:KBJP
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:9 May 2022
Place:Brisbane

It is therefore the decision of the Tribunal that the reviewable decision is affirmed.

.........................[SGD]...............................................
Senior Member P J Clauson AM

Catchwords
Worker’s Compensation - continues to suffer the effects of a condition caused by or significantly contributed to by her employment - aggravation of Major Depressive Disorder - ongoing psychological counselling - condition has not resolved – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 16(1), 16C,
Cases
Alamos and Comcare [2014] AATA 629
Durham and Comcare [2014] AATA 753
REASONS FOR DECISION
Senior Member P J Clauson AM
9 May 2022
INTRODUCTION

The applicant (KBJP) was employed by the Australian Taxation Office (ATO) between 1984 and her retirement in September 2012.[1]
[1] Exhibit 1, T Documents, T29, page 168.
The applicant has suffered from a long history of what has been variously described as “Adjustment reaction with depressive reaction”, “Acute Anxiety and Adjustment Disorder” and “Aggravation of Major Depressive Disorder, single episode.”
The applicant, on 8 May 2008, lodged a Workers’ Compensation claim for “Major Depressive Disorder and generalised anxiety and panic attacks” first noticed on
[2] Exhibit 1, T Documents, T4, pages 24 - 43.
9 October 2006.[2]
Liability was accepted as a result of this claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for “aggravation of Major Depressive Disorder”, with a date of injury of 11 January 2008.[3]
[3] Exhibit 1, T Documents, T18, pages 116 - 117.
Comcare has since 2007, compensated the applicant for 117 sessions of psychological treatment administered by the applicant’s main Psychologist; Dr D Robertson
(Dr Robertson), at a cost of $15,818.00.
A Medical Certificate provided by the applicant’s General Practitioner, Dr C Duffy
[4] Exhibit 1, T Documents, T40, page 274.
(Dr Duffy), on 28 June 2018, recommended that the applicant receive ongoing psychological counselling at ‘needs 10/year’. It is assumed by the respondent and the Tribunal that this equates to a shorthand description meaning 10 sessions per year.[4]
At the request of the respondent, Ms J Gierlicz (Ms Gierlicz), a Clinical Psychologist, conducted a Clinical Panel Review (CPR) on 3 September 2018.[5] Ms Gierlicz contacted
[5] Exhibit 3, Respondent’s Hearing Bundle, R2, pages 5 - 12.
Dr Robertson for the purposes of compiling the CPR to discuss the applicant’s case. During this process, Ms Gierlicz reported that Dr Robertson told her that the applicant suffered significant non-work-related trauma resulting from a now dissolved marriage and other family issues.
Ms Gierlicz recorded further, that Dr Robertson considered that she had always been clear with the applicant that Comcare’s liability was limited, and…

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 KBJP and Comcare (Compensation)

Details

AGLC: KBJP and Comcare (Compensation) [2022] AATA 2466
Case: [2022] AATA 2466
Decision Date: 9 May 2022

CaseChat Overview and Summary

This matter concerned an application by KBJP against Comcare regarding compensation for ongoing psychological counselling. The dispute centred on whether the applicant's current condition, and the need for further treatment, was a continuation of or significantly contributed to by her employment injury, or if it stemmed from unrelated personal circumstances. The decision was made by P J Clauson SM.

The primary legal issue before the Tribunal was to determine whether the applicant continued to suffer the effects of a condition caused by, or significantly contributed to by, her employment. This involved assessing whether her ongoing psychological counselling was reasonable treatment in relation to an accepted work-related injury, or if the condition requiring treatment was now solely attributable to personal or family issues unrelated to her employment. The Tribunal had to consider conflicting expert opinions and the applicant's own evidence regarding the origins of her psychological distress.

The Tribunal considered the evidence presented, including the sworn testimony of the applicant and a Clinical Psychologist, Ms Gierlicz, as well as various medical reports and written statements. The applicant maintained that her condition was solely due to her work-related injury and not her family issues. However, a report from her treating Psychologist, Dr Robertson, indicated that by December 2019, the applicant's condition was rooted in traumatic family circumstances unrelated to her employment. The applicant disputed aspects of Dr Robertson's report, particularly regarding the timing of discussions about family issues, and asserted that her treatment needs were exclusively work-related. The Tribunal noted that while the applicant had been diagnosed with PTSD by a new psychologist and was undergoing EMDR treatment, this diagnosis and treatment were not before the Tribunal in the context of the accepted injury.

Consequently, the Tribunal affirmed the reviewable decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 16(1) of the SRC Act provides:“(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that treatment.”THE EVIDENCE The Tribunal heard the sworn oral evidence of the applicant and Ms Gierlicz, a Clinical Psychologist. The Tribunal also had access to extensive medical reports and written statements from the applicant to which the Tribunal was able to have recourse, where relevant, in reviewing this matter. The applicant’s evidence to the Tribunal was effectively, that her condition was due solely to the effects of her work-related injury and was not related to any family issues external to her work situation with the ATO. The applicant’s treating Psychologist, Dr Robertson, had concluded that the applicant’s condition, as of December 2019, was now solely rooted in traumatic family circumstances unrelated to the applicant’s employment. This opinion was relayed to [14] Exhibit 1, T Documents, T29, page 167.Ms Gierlicz, a Clinical Psychologist, on 3 September 2018, when Ms Gierlicz was conducting a Clinical Panel Review (CPR) at the respondent’s request.[14] The applicant’s evidence to the Tribunal was that she disagreed with Dr Gierlicz’s report where it stated that the applicant was speaking to Dr Robertson in 2013 about family issues, in particular domestic violence. She told the Tribunal that she and Dr Robertson discussed her obsessional thoughts regarding her employment sometime around 2016 or 2017, and Dr Robertson advised her to not focus on work issues during their session. The applicant, then told the Tribunal that during her early discussions/ sessions with Dr Robertson, in relation to the Doctor’s notes regarding domestic violence, centred around a book that she was writing at the time. The applicant told the Tribunal that after Dr Robertson had told her not to focus on work issues during their sessions, she then:-Witness (KBJP): “… I spoke about my childhood, my adulthood, my marriage, my daughter, my family. I told her everything about me; my innermost thoughts, my values, my beliefs and how I felt about people.”[15][15] Transcript of Proceedings, page 13, lines 25 to 28. The applicant’s evidence was that although she suffered domestic violence and had other issues in her domestic life, these had nothing to do with her illness. Her statement to the Tribunal was as follows:Witness/ KBJP: “My injury was caused at work, and that’s why I’m having treatment. Not for domestic violence.”[16][16] Transcript of Proceedings, page 14, lines 19 and 20. The applicant then stated that if she required treatment for domestic violence, she would not claim it under Comcare. Under cross-examination, the applicant told the Tribunal that she had tried a different Psychologist since severing her relationship with Dr Robertson, due to the fact that she did not feel comfortable with her (Dr Robertson) and lacked rapport.

Decision

Reasons for decision

Further, given the applicant’s evidence that she has now been diagnosed with PTSD by her new treating Psychologist, Dr Daniels, and is embarking upon EMDR treatment for that condition, the Tribunal considers that the lack of evidence before it relating to this diagnosis cannot be considered in the context of this review as the applicant’s accepted injury.DECISION It is therefore the decision of the Tribunal that the reviewable decision is affirmed.

Ratio Decidendi

Legal Principle Established

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