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

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.
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.
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…

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 Kennedy and Comcare (Compensation)

Details

AGLC: Kennedy and Comcare (Compensation) [2018] AATA 1837
Case: [2018] AATA 1837
Decision Date: 21 June 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Kennedy against decisions by Comcare to discontinue her entitlement to compensation. The dispute centred on whether Mrs Kennedy continued to suffer from a compensable injury or disease arising from her employment with a licensed corporation. The decision was made by D. J. Morris SM in the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether Mrs Kennedy continued to suffer from a diagnosable psychiatric condition at the date of the determination, and if so, whether there was a continuing liability for compensation under the *Safety, Rehabilitation and Compensation Act 1988*. The Tribunal was required to consider the medical evidence and the applicant's own statements to determine if the accepted conditions had enduring effects connected to her employment.

The Tribunal's reasoning was primarily based on the medical evidence, including reports from Dr Walton and Ms Genovese, and medical notes from Dr Harrison. This evidence consistently concluded that Mrs Kennedy was not suffering from any diagnosable psychiatric condition on the relevant dates. Mrs Kennedy's own letter to Dr Walton indicated that her depression and irritability had resolved by July 2014, although she noted a vulnerability to anxiety. The Tribunal distinguished between vulnerability to a condition and suffering from it. Furthermore, the Tribunal noted that any frustration or anxiety Mrs Kennedy experienced was related to the proceedings and delays in resolving her claim, rather than being a sequelae of her employment. The Tribunal applied the principle established in *Australian Telecommunications Commission v Tzikas* that resentment about lower earnings or delays in litigation is remote from employment and not a compensable factor.

Consequently, the Tribunal affirmed Comcare's reviewable decisions of 30 November 2016 and 8 November 2016. These decisions found that Comcare had no present liability to Mrs Kennedy for medical expenses and incapacity payments for her accepted conditions, namely the aggravation of adjustment disorder with mixed emotional features and the aggravation of adjustment reaction with anxious mood, under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988*.

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

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 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. 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.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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…. 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