Kennedy and Comcare (Compensation)

[2018] AATA 1837

Kennedy and Comcare (Compensation) [2018] AATA 1837 (21 June 2018)

Division:GENERAL DIVISION

File Number(s):      2017/0458; 2017/0106

Re:Wendy Kennedy

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:21 June 2018

Place:Melbourne

1. The Tribunal affirms the reviewable decision of 30 November 2016 that Comcare had no present liability to the Applicant for medical expenses and incapacity payments for her accepted condition of aggravation of adjustment disorder with mixed emotional features under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.

2. The Tribunal affirms the reviewable decision of 8 November 2016 that Comcare had no present liability for medical expenses and incapacity payments for the Applicant’s previously accepted condition of aggravation of adjustment reaction with anxious mood under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.

...........................[sgd]...........................................

Senior Member

Catchwords

COMPENSATION – Employee of licensed corporation – whether injury or disease – whether applicant continues to suffer from condition – no present liability for compensation - decisions under review affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988, ss 5B, 14, 16

Cases

Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173

Comcare v Mooi (1996) 69 FCR 439

REASONS FOR DECISION

Senior Member D. J. Morris

21 June 2018

Background

1. The Applicant, Mrs Wendy Kennedy, requested the Respondent to conduct an independent review of a determination dated 5 October 2016. The determination was that there was no present liability for medical expenses and incapacity payments under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in relation to her claim for compensation.  The previously accepted condition was aggravation of adjustment reaction with mixed emotional features.  A Comcare review officer undertook a review and decided to affirm the determination, setting out the reasons for that decision in a letter and attachment to Mrs Kennedy dated 30 November2016.  This is the first of the decisions that the Applicant has asked the Tribunal to review (application 2017/0458) and will be called in these reasons the first aggravation.

2. On 1 September 2016 the Respondent determined that there was no present liability for medical expenses and incapacity payments under sections 16 and 19 of the Act in relation to Mrs Kennedy’s claim for compensation. The previously accepted condition was aggravation of adjustment reaction with anxious mood.  A Comcare review officer undertook a review and decided to affirm the determination, setting out the reasons for that decision in a letter and attachment to Mrs Kennedy dated 8 November 2016.  This is the second of the decisions that the Applicant has asked the Tribunal to review (application 2017/0106).  This will be called the second aggravation.

3. The issues before the Tribunal are (i) whether the Applicant continues to suffer from the effects of the first aggravation and, if so, whether Mrs Kennedy is entitled to compensation pursuant to the provisions of sections 16 and 19 of the Act; and (ii) whether Mrs Kennedy continues to suffer from the effects of the second aggravation, and whether she is entitled to compensation under the same provisions.

   The hearing

4. The hearing took place on 7 March 2018. Mrs Kennedy represented herself and made submissions. Ms Cathy Dowsett of counsel represented the Respondent and made submissions. The Tribunal took into evidence documents tendered under section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), Statements of Facts, Issues and Contentions of both the Applicant and the Respondent, and  the following documents:

   ·Medical letter from Dr Caitlin Harrison to Dr Naomi Elliot dated 5 August 2016;

   ·Clinical notes in relation to the Applicant’s attendance on Dr Caitlin Harrison from 12 January 2016 to 27 March 2017.

5. The Tribunal notes that the Applicant made certain written submissions after the hearing.  Parties were advised at the conclusion of the hearing that regard would be had to the written submissions made by  the Applicant and the Respondent before the hearing and the oral submissions made at the hearing, as well as the papers before the Tribunal.  The Tribunal did not give leave to the parties to make subsequent submissions and they are not taken into account in this consideration.

6. The Applicant was born in October 1957.  In 2011 she started working as a business analyst at the Medibank Private office in central Melbourne; at first on a temporary basis and from September that year in a permanent position.

7. On 9 October 2013 Mrs Kennedy lodged a claim for compensation claiming that she suffered injury on 2 May 2013, namely ‘stress, anxiety with depressive symptoms’ as a consequence of a workplace incident where she claimed she was berated by another staff member at a meeting that day.  Mrs Kennedy ceased employment with Medibank Private in November 2013.

8. In December 2013 the Respondent accepted Mrs Kennedy’s claim for Aggravation of Adjustment Reaction with mixed emotional features under section 14 of the Act. In its submissions, Comcare said it was satisfied that Mrs Kennedy suffered from an ailment based on the fact that this incident caused her to return to consult her general practitioner, Dr Harrison, whom she had not seen since June the previous year.

9. On 7 September 2016 the Respondent contacted Mrs Kennedy, giving notice of its intention to determine that there was no present entitlement for compensation for this first aggravation, and giving her the opportunity to present further medical evidence in support of her claim. On 5 October 2016 the Respondent determined Mrs Kennedy did not presently suffer from the effects of the first aggravation and therefore there was no present entitlement to compensation under section 16 or section 19 of the Act.

10. In relation to the second aggravation, Mrs Kennedy lodged two claims for compensation.  She claimed she suffered from depression, anxiety and stress and adjustment disorder with anxiety on 2 July 2012 caused by her employer accusing her of something she had not done. She also claimed she suffered stress and anxiety with depressive symptoms on 9 September 2013. This was precipitated by an email confirming she was being placed back with a supervisor where there had previously been a doctor’s advice that she should not report to or be in proximity with him.

11. On 13 December 2013 the Respondent denied Mrs Kennedy’s claim under section 14 of the Act. In so doing the delegate was satisfied that Mrs Kennedy suffered an aggravation of anxiety that was contributed to, by a significant degree, by her employment in September 2013; but the circumstances of her claim fell within the exclusionary provisions of the Act. This 13 December 2013 determination was later varied by the Respondent on 23 April 2014 to the effect that it was not satisfied Mrs Kennedy suffered a further aggravation of the underlying condition such that she suffered a new injury in September 2013.

12. This Tribunal, in a separate consideration, made a decision on 21 October 2015, by consent, that the Applicant suffered an aggravation to adjustment disorder with anxious mood that was contributed to a significant degree by her work with Medibank Private, deemed to have been sustained on 13 September 2013. And that she was entitled to compensation under section 14 of the Act for this second aggravation.

13. On 4 July 2016 Comcare wrote to Mrs Kennedy giving notice of its intention to determine that there was no present entitlement to compensation for this second aggravation, and provided her with the opportunity to present medical evidence in support of her claim. On 1 September 2016 the Respondent determined that the Applicant did not presently suffer from the effects of the second aggravation and therefore there was no present entitlement for her to receive compensation under section 14 and section 19 of the Act.

14. The Respondent conceded that at all relevant times Mrs Kennedy suffered an ailment for the purposes of section 5B of the Act, in that she suffered from a condition outside the boundaries of normal mental functioning and behaviour.  In this contention the Respondent cited Comcare v Mooi [1996] 69 FCR 444.

15. The Tribunal had before it (for example T3, p 5) medical notes from Dr Caitlin Harrison, Mrs Kennedy’s treating general practitioner.  Dr Harrison saw the Applicant on 19 June 2012 and recorded ‘Under stress at work – discussed at length.  Management now aware of issues – expecting changes’.  The Tribunal also had before it a number of reports from Ms Kerry Genovese, a psychologist who Mrs Kennedy consulted.

16. The Tribunal, having considered the medical evidence, finds that Mrs Kennedy did suffer an ailment in the terms of section 5B of the Act.

    Application 2017/0458

17. Dr Harrison certified Mrs Kennedy unfit for work on 8 May 2013 and refers to escalating bullying over the past year and a further incident on 2 May 2013 causing a flare in symptoms.  On 17 June 2013, Dr Harrison saw Mrs Kennedy and reported Anxiety persists.  Reports improvement in depressive Sx – less anhedonia and hopelessness.

18. On 1 July 2013 Dr Harrison again saw the Applicant and recorded Reports feeling less depression.  Anhedonia resolved.  Concentration OK.  Low level anxiety persists re outcome of workcover claim and long term solution…

19. On 13 June 2013 Mrs Kennedy also saw Ms Genovese, who provided a report to Comcare dated 11 July 2013.  Ms Genovese reported:

    Wendy’s DASS-21 scores indicated a mild level of Depression (score of 6), a moderate level of Anxiety (score of 6) and a moderate level of non-specific Stress (score of 10).  This suggests that Wendy’s depressive symptoms have abated somewhat, but she continues to experience heightened arousal and anxiety specific to her work situation.

20. The Tribunal also had before it a report from Dr Lester Walton, consultant psychiatrist.  He examined Mrs Kennedy on 11 September 2014, and recorded:

    From what psychological condition, if any, does Ms. Kennedy currently suffer?

    In my opinion Wendy Kennedy is suffering from no current diagnosable psychiatric condition.  I am not in a position to dispute the diagnosis made by the treating psychiatrist of adjustment disorder with anxiety in the sense that that may have been a valid diagnosis previously but if so the condition has now resolved.

21. On 13 March 2015 Ms Genovese wrote another report to the Respondent at the request of the Applicant.  She concluded:

    Wendy remains vulnerable to rumination on her past negative experiences, particularly when she is involved in preparing materials for her ongoing legal processes.  In counselling we monitor and limit the amount of time she spends on associated tasks.  Her symptoms of anxiety and depression have largely resolved at this time, although reminders of her past experiences can trigger transient symptoms.

22. On 6 September 2016, Ms Genovese provided a further report.  It states:

    When seen on 18 January 2016, Wendy’s anxiety and mood symptoms that I had previously reported had abated…

    I next saw Wendy on 10 March 2016, when she was further improved.  She reported feeling positive, enjoying outings again and being more active and involved in her home life.  I administered the DASS-21 which showed she had no symptoms indicative of clinical depression, anxiety or stress.

    When last seen on 16 August 2016 Wendy remained asymptomatic.  However, she has reported ongoing concern and low self-confidence in her capacity to gain and maintain meaningful employment….

    Wendy feels she would benefit from continuing counselling to work on her confidence issues in seeking employment, and I will be speaking to her Comcare Case Manager to discuss this.  While she does not meet any psychological diagnostic criteria at present, her poor self-confidence can be viewed as a psycho-social effect of her negative work experience with Medibank.

    (Emphases added.)

    Application 2017/0106

23. The conclusions of Dr Walton which are reproduced above, that the Applicant was not, on the day he examined and assessed her (11 September 2014) suffering from any diagnosable psychiatric condition, are relevant to this claim. Also relevant are the conclusions of Ms Genovese, especially those set out above in her report of 6 September 2016.

    Consideration

24. In reviewing Comcare’s decision to discontinue Mrs Kennedy’s entitlement to compensation, the Tribunal must consider whether the Applicant continued to suffer from an ailment at the date of the determination.  If the answer to this threshold question is yes, only then does the Tribunal proceed to consider the other requirements in the Act.

25. The consistent medical evidence before the Tribunal from Dr Walton and from Mrs Kennedy’s psychologist, together with the medical notes of Dr Harrison, do more than point away from a conclusion that a continuing liability still exists in relation to the accepted condition. This evidence is quite explicit and directly concludes that there is no psychological condition enduring. 

26. Relevantly, Mrs Kennedy herself wrote on 13 October 2014 in a letter to Dr Walton (T27, p 174):

    You are correct; depression and irritability appear to have resolved themselves by about July 2014.  I suspect that not being on medication, it took a while for the imbalance in my brain caused by the ongoing trauma to right itself.

    I remain vulnerable to anxiety.

    Vulnerability to a condition does not mean that a person suffers from that condition; nor, in this case, that the person continues to suffer from it.

27. As recorded in a number of documents, notably by summonsed medical notes of Dr Harrison, and in her own oral submissions about perceived delays by the Respondent in considering her claim, and in writing about seeking justice (also referred to by her medical advisers), the Applicant has had her mind occupied by proceedings before the Tribunal or other forums. The Courts have made clear that frustration towards a respondent in resolving a legal claim for compensation is not sequelae of an applicant’s employment; that is, it is not a compensable factor.

28. The Full Federal Court in Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 said at [195]::

    However, we believe that resentment about lower earning or delays in litigation cannot be said to have been contributed to by employment.  Such considerations are remote from the employment as other factors, such as relief in not having to work….

29. It is understandable that Mrs Kennedy may be frustrated about being out of regular work and, as her psychologist recorded, lacks a certain amount of self-confidence in regard to job interviews for a new position.  However, for her application to succeed there must be a continuing effect of her accepted condition, and then also a connexion with her employment.  After careful consideration of all the medical evidence, the Tribunal finds that there is no continuing effect and therefore that the reviewable decisions were the correct decisions.

    DECISION

30. The Tribunal affirms the reviewable decision of 30 November 2016 that the Respondent had no present liability to the Applicant for medical expenses and incapacity payments for her accepted condition of aggravation of adjustment disorder with mixed emotional features under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.

31. The Tribunal affirms the reviewable decision of 8 November 2016 that the Respondent had no present liability for medical expenses and incapacity payments for the Applicant’s previously accepted condition of aggravation of adjustment reaction with anxious mood under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...............................[sgd].........................................

Associate

Dated: 21 June 2018

Date(s) of hearing:	7 March 2018
Applicant:	In person
Counsel for the Respondent:	Cathy Dowsett