Klinge and Comcare (Compensation) - [2020] AATA 677

Klinge and Comcare (Compensation) [2020] AATA 677 (26 March 2020)
Division:GENERAL DIVISION
File Number: 2018/4233
Re:Stephen Klinge
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso

Date: 26 March 2020
Place:Brisbane

The Tribunal affirms the decision under review.
.................................[SGD].......................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION – diagnosed condition of schizophrenia – relationship between the Applicant’s first stress induced psychotic episode and schizophrenia – whether the Applicant’s schizophrenia was materially contributed to by his employment – Comcare not liable to pay compensation – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Casarotto v Australian Postal Commission (1989) 10 AAR 191
Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626
Halliday and Comcare (1994) 19 AAR 431
Holt v Comcare (2003) 130 FCR 576
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
REASONS FOR DECISION
Deputy President J Sosso
26 March 2020
INTRODUCTION

On 28 December 2017 Mr Stephen Klinge (“the Applicant”) submitted a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for permanent impairment (s. 24) and non-economic loss (s. 27) for schizophrenia – Exhibit 1 T28 pp. 97 – 111.
This claim was not accepted by Comcare in a decision dated 22 February 2018 – Exhibit 1 T33 pp. 121 - 131. Comcare, at the request of the Applicant, undertook an independent review of this decision. On 9 May 2018 the Comcare Review Officer affirmed the original decision – Exhibit 1 T39 pp. 132 – 135.
In reaching this decision, the Review Officer provided the following reasons – Exhibit 1 T39 pp. 133 – 134:
“The issue to be decided in this reconsideration is whether you are entitled to compensation for schizophrenia, secondary to stress induced psychotic episode from 1994.
To be entitled to compensation under section 14 of the SCR Act, the evidence must satisfy that the claimed condition arose from the same circumstances that led to your compensable condition, or was contributed to, to a material degree, by your compensable condition…
Upon review of the medical evidence, there is insufficient information to suggest that either your Commonwealth employment or compensable condition was a material contributor to your ongoing condition of schizophrenia. Whilst it is contended that it was schizophrenia that you initially presented with in September 1994, the evidence from Dr Cotton in April 1995 suggested that you experienced a reactive psychotic episode, which was in remission at the time. Dr Cotton was also of the opinion that this was unlikely to reflect the true onset of schizophrenia. Whilst it is acknowledged that your Commonwealth employment caused this one episode, the evidence does not support that the events that led to the episode, or the episode itself, were the cause of your ongoing schizophrenia. Rather, it appears that this was merely the first time that your experienced an episode.
Furthermore, you…

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 Klinge and Comcare (Compensation)

Details

AGLC: Klinge and Comcare (Compensation) [2020] AATA 677
Case: [2020] AATA 677
Decision Date: 26 March 2020

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against a decision by Comcare not to pay compensation. The applicant had been diagnosed with schizophrenia, and the central dispute revolved around whether this condition, or specifically the applicant's first stress-induced psychotic episode, was materially contributed to by his employment. The case was heard by Deputy President Sosso of the Tribunal.

The Tribunal was required to determine two primary legal issues. First, it needed to ascertain the precise condition from which the applicant was suffering. Second, it had to establish the relationship between the applicant's diagnosed schizophrenia and his first stress-induced psychotic episode, and whether this episode was causally linked to his employment.

In reaching its decision, the Tribunal preferred the expert opinion of Dr Reddan over that of Dr Cotton, noting that Dr Reddan's assessment was made a quarter of a century after the applicant's first episode and benefited from a more extensive review of his medical history. The Tribunal accepted Dr Reddan's explanation that initial psychotic episodes can be misdiagnosed, with the signs of schizophrenia becoming apparent over time, and concluded that the applicant was suffering from schizophrenia, multiple episodes, in partial remission. The Tribunal found, on the balance of probabilities, that the 1994 psychotic episode was the first clinically significant manifestation of the applicant's schizophrenia. Applying the principle from *Ogden Industries v Lucas* that aggravation means making an existing disease worse, and referencing the Full Federal Court's observations in *Holt v Comcare* regarding the need to prove a continuing condition and not merely a temporal or linear relationship, the Tribunal found that the evidence did not establish a causal link between the applicant's employment and the aggravation or onset of his schizophrenia.

Consequently, the Tribunal found that Comcare was not liable under section 14 of the Act to pay compensation to the applicant, and the decision under review was affirmed.

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

The Tribunal finds that Comcare is not liable under s. 14 of the Act to pay compensation to the Applicant. DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

As previously noted, the Tribunal received evidence from Ms Gow, Ms Withers and Dr Jill Reddan.CONSIDERATIONWhat condition is the Applicant suffering? The first issue to be determined is what condition does the Applicant currently suffering from. The Tribunal had the benefit of receiving the detailed and considered report of Dr Reddan and also observe her give evidence. The Tribunal also had the benefit of considering the 6 April 1995 report of Dr Cotton. Insofar as the diagnoses of Dr Reddan and Dr Cotton differ, the Tribunal prefers those of Dr Reddan. When Dr Cotton examined and assessed the Applicant he had only recently suffered his first stress induced psychotic episode. In contradistinction, a quarter of century elapsed before Dr Reddan assessed the Applicant, and she had the benefit of considering his medical history over an extended period of time. The Tribunal accepts the following explanation given by Dr Reddan – Exhibit 4 p. 14:“It is not uncommon for first or second episode of psychosis to be diagnosed as being related to a number of other conditions and it is often only over time that the particular signs and symptoms of Schizophrenia become apparent. The first episode was due to Schizophrenia.” Comcare concedes (ROS p. 7 para 21), and the Tribunal agrees, that the Applicant is suffering from schizophrenia, multiple episodes, in partial remission. Further, based on Dr Reddan’s diagnosis (Exhibit 4 pp. 13 – 14), the Tribunal finds that, on the balance of probabilities, the psychotic episode in 1994 was the first clinically significant psychotic episode in respect of the Applicant’s schizophrenia condition. This finding is also consistent with the contentions of the Applicant – Statement of Issues Facts and Contentions of the Applicant (“SIFCA”) para 8.Relationship between the Applicant’s schizophrenia and the first stress induced psychotic episode The Applicant contends (SIFCA paras 7 – 8) that if his schizophrenia existed before the events of 1994, then his first stress induced psychotic episode was the result of the aggravation of his underlying mental condition. As previously pointed out, Windeyer J explained in Ogden Industries v Lucas (1967) 116 CLR 537, aggravation means that an existing disease has been made worse, not that it simply becomes worse. Comcare submits (ROS para 23) that the evidence of Dr Reddan that the relationship between the Applicant’s schizophrenia and his first psychotic episode is linear or temporal and not causal. Dr Reddan explained (Exhibit 4 p. 6) that schizophrenia “is a process condition and it is largely a neurodevelopmental condition.” In Holt v Comcare (2003) 130 FCR 576 (“Holt”), the Full Federal Court made the following observations:“[33] There can be no doubt that the starting point for the appellant’s case was that, in 1985, she had suffered an aggravation of a pre-existing asthma condition. Even if the appellant had wished to challenge the amendment, made in July 1986, to the description of her accepted condition, it would have been too late to do so. Nor was it the appellant’s case that her working conditions had caused her to contract asthma. At all times, her case was that her working conditions had caused an aggravation of her pre-existing condition. The aggravating factors were alleged to have been climate changes, due to frequent travel, and stress, due to her workload and level of responsibility…[36] The appellant failed to persuade the Tribunal that she suffered a permanent aggravation of her asthmatic condition by reason of work-related factors. It was not sufficient for her to prove that a return to work, under conditions similar to those the appellant had experienced between 1982 and 1985, would again aggravate her asthma. To establish that factual proposition would only be to establish that a resumption of work involving the same conditions would cause a further aggravation of the underlying condition. The question before the Tribunal was not whether there would be a further aggravation in the event of a return to work, but whether the aggravation that had occurred by 1985 was a continuing condition as at October 2000…[41]…Not only is there no finding of fact that the appellant’s underlying asthma was worsened as a result of the conditions to which she was exposed between 1982 and 1985, that was not even the case she put to the Tribunal. Even her major medical witness, Professor Alpers, in a report dated 23 August 2001, which was tendered to the Tribunal, identified many trigger factors for the appellant’s asthma symptoms. They included temperature changes, exercise, stress, house dust, cats, pollens, horses and various food agents containing metabisulphite. It is obvious that most of these factors had nothing to do with the appellant’s work conditions in and before 1985…”