Koker and Comcare (Compensation)
[2017] AATA 1432
•4 September 2017
Koker and Comcare (Compensation) [2017] AATA 1432 (4 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3198; 2016/3391; 2016/3388; 2016/3387; 2016/3386
Re: Charles Koker
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:Deputy President Gary Humphries
Date:4 September 2017
Place:Canberra
1.The Tribunal affirms that part of the reviewable decision of 27 April 2016 as relates to the period 21 May 2015 to 6 October 2015, and 18 December 2015. The Tribunal remits to Comcare that part of the reviewable decision as relates to the period 7 October 2015 to 12 January 2016 (but excluding 18 December 2015) with the direction that:
(i)it assign AE in the formula in s 19 a value of nil; and
(ii)it take into account leave taken by Mr Koker, public holidays during this period and days worked by Mr Koker.
2.Pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 Comcare is to pay Mr Koker’s costs in these proceedings, as agreed or taxed.
........................................................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – Compensation for injuries resulting in incapacity – psychological sequela of a physical injury – effective or operative cause of injury – secondary psychological injury – entitlement under s 19 – AE in the formula – novus actus interveniens – reviewable decision affirmed in part, remitted in part
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 8, 9, 14, 19, 62, 67
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Cases
Dunkerley and Comcare [2014] AATA 381
Goodricke v Comcare (2011) 122 ALD 546
Kavas and Comcare [2011] AATA 935
Kennedy v Cordia (Services) LLP [2016] UKSC 6
Sambastian and Australian Postal Corporation [2017] AATA 448
Woodbridge v Comcare [1994] FCA 558
REASONS FOR DECISION
Deputy President Gary Humphries
4 September 2017
INTRODUCTION
The Applicant, Charles Koker, works for the Community Services Directorate of the ACT Government. In 2015 he was in the process of undertaking a return to work programme when, following a work incident on 20 May 2015, he went off work and remained away from his employment for some nine months. During this period, he received incapacity payments from Comcare, but following his return to work in January 2016 Comcare reconsidered its decision to make those payments and required him to repay most of the amounts he had been paid while off work.
Mr Koker has sought administrative review of that decision by the Tribunal.
BACKGROUND
Mr Koker’s position in the Community Services Directorate is that of a youth worker, though he described himself as a Youth Detention Officer while working with juvenile detainees at the ACT’s Bimberi Detention Centre (Bimberi). He began that work in January 2011.
On 18 June 2013, while attempting to restrain a youth at the detention centre, he fell onto a concrete floor and twisted his left knee. On 25 June 2013 he lodged a workers compensation claim in respect of his knee injury, and on 29 July 2013 Comcare, the respondent in these proceedings, accepted liability under s 14 of Safety, Rehabilitation and Compensation Act 1988 (the Act) for a condition of internal derangement of knee (left) and sprain of other specified sites of knee and leg (left) (calf) (the knee condition).
He underwent surgery on the left knee on 7 August 2013, and had several months off work while recovering. He began a graduated return to work programme in 2014.
Several medical certificates were issued in relation to Mr Koker’s capacity for work. From 30 July 2014 prior restrictions on his performing only sedentary duties were lifted, with the following restrictions put in place:
(a) Normal hours
(b) Weight lifting up to 12.5kg
(c) No running or responding to an emergency code (except in a fire emergency)
(d) No use of force or physical intervention.
From 19 February 2015 the restrictions on use of force and weight lifting were removed. He was cleared to work normal hours, but was still exempted from responding to emergency codes, apart from fire emergencies.
Various plans – entitled Comcare Return to Work Suitable Duties Plans – were created in March and April 2015 to set out arrangements for Mr Koker’s graduated return to work at Bimberi, with the goal of restoring him to full pre-injury duties for 38 hours per week without restriction as a Youth Worker. Specifically, a graduated return to work plan dated 30 April 2015 and prepared by Ms Diana Jaques, Mr Koker’s rehabilitation case manager, was before the Tribunal. It was developed in consultation with his GP, Dr Abul Hassan Syed, following a case conference on 20 April 2015, and was signed by Dr Syed and Mr Koker.
The plan provided for normal hours of work, up to 8 hours per day. Restrictions included breaks in the morning and afternoon shifts of up to 30 minutes and the avoidance of running or of violent clients. Mr Koker was not to be left alone with clients.
Mr Koker told the Tribunal that he was concerned about re-injury during this return to work phase, and that he had raised these concerns with his employer. In a Weekly Return to Work Journal which was tendered, Mr Koker records, in the week ending 15 May 2015, that the Getting into the centre routine worked well but that he was:
Still struggling with fatigue and sore knee in the afternoon. Felt harassed being asked by multiple unit managers and team leaders for medical certificate for absence.
An incident occurred at Bimberi on 20 May 2015 involving Mr Koker and his supervisor, Mr George Kibbey. The same day Mr Koker attended Dr Syed, who issued a medical certificate on 21 May in the following terms:
1. Normal hours. Maximum 8 hours /day. Recommend brakes morning and afternoon shifts up to 30 min.
2. Modified administrative duties until current work place issues resolved by the management.
3. Work under direct supervision of Mr Crag Cuttance ( operation manager). No direct or indirect contact with Mr George Kibbey. (sic)
On 22 May 2015 Mr Koker forwarded the medical certificate to Mr Craig Cuttance, the Acting Operations Manager at Bimberi. On the same day Mr Cuttance responded by email saying:
At this point in time Bimberi does not have any suitable administrative duties for you to perform.
Until Bimberi identifies suitable duties (for you) please remain at home.
…
I will contact you next week and until then please remain at home and rest up.
Again, on 27 May 2015, Mr Cuttance emailed Mr Koker, saying
… please remain at home, until further notice, pending the identification of suitable duties.
The restrictions on work in Dr Syed’s medical certificate of 21 May were maintained in certificates he issued for the period 2 June to 23 July 2015. From 21 July 2015 restriction number 3 was modified as follows:
3. Work under direct supervision of Mr Dean Horne (operation manager). No direct or indirect contact with Mr George Kibbey.
This restriction remained in place from 21 July to 7 October 2015. However, the restrictions were not listed in a medical certificate issued on 7 October 2015, at which time Mr Koker was cleared to work normal hours in administrative duties.
Mr Koker told the Tribunal he had never had a good working relationship with Mr Kibbey. He blamed Mr Kibbey for his knee injury. He considered that Mr Kibbey had exposed me to risk of re-injury during the return to work process by placing him in the kitchen with high risk young people. He said I don’t trust him. It was put to Mr Koker in cross-examination, and he agreed, that at the time he saw Dr Syed on 20 May nothing affecting his physical ability to undertake the duties or to work the hours referred to in the return to work plan of 30 April had changed.
Ms Jaques wrote a Progress Report dated 29 May 2015 in which she detailed a case conference she attended with Mr Koker and Dr Syed at the latter’s surgery on 20 May 2015. She recorded:
ORS attended a GP Case Conference with Dr Syed and Mr Koker at Gungahlin General Practice on 20 May. Mr Koker had advised he had not remained at work following the RTW meeting earlier that day and had provided an email detailing his concerns regarding bullying and harassment to all parties. Mr Koker reported he had gone home and slept. ORS then provided Mr Koker with a copy of “proposed” duties, as prepared by Mr Cuttance and in response to issues raised at the RTW meeting earlier that day, to review and discuss prior to meeting with the GP. At the GP Case Conference Mr Koker began to highlight his concerns, eg his knee feels weak at some stage throughout the day at work, there is some soreness and walking/standing an issue still and then demonstrated his physical limitations to the GP. ORS observed Mr Koker becoming increasingly agitated and he began to gesticulate whilst raising his concerns. The GP halted the conversation by placing a hand upon his knee, speaking softly and making direct eye contact (Mr Koker would not face him, but continued to hang his head down low) and stated he needed to listen. Dr Syed proceeded to state that both he and the specialist agree there is nothing more that can be done to his knee and he needs to accept this and move on. Dr Syed stated Mr Koker has been repeating the same message for the past 12 months and throughout the appointment time Dr Syed repeated the same process on 3x separate occasions before Mr Koker was able to focus on the message and listen. Dr Syed’s message was he needed to move forward in order to manage at work but Mr Koker again became emotional when describing his concerns regarding the bullying and harassment. Dr Syed calmed him down again and suggested another long appointment the following day. ORS left copies of the current SDP and obtained a new MC. Next medical review on 18 June 2015.
Mr Koker agreed that Ms Jaques’ account of this conference was broadly accurate.
Mr Koker did not attend his workplace at Bimberi for the seven months or so following 20 May 2015. He told the Tribunal he made various contacts with his employer (particularly Mr Cuttance) during the relevant period, seeking to return to work, but was always told to wait at home. He told the Tribunal he would have accepted any offer of work made to him by his employer at that time. He said he returned to work on 17 December 2015, worked that day and the following day and then took personal leave until Christmas. After the Christmas public holidays he said he returned to Bimberi on 4 January 2016 where he performed admin/sedentary type of jobs, because of continuing work restrictions relating to his knee condition.
File notes of Ms Michelle Purcell, Mr Koker’s case manager, were tendered. The file notes record conversations or meetings with Mr Koker. One note dated 2 September 2015 indicated that he is not medically certified to return to Bimberi until the bullying matter has been resolved. Another dated 7 December 2015 recorded He is unfit at the moment. However, a medical certificate of Dr Syed of the same date records him being Fit for modified or other duties until 7 January 2016. Mr Koker denied telling Ms Purcell he was unfit for duty on the days recorded in the file notes. He did agree, however, with the assertion in a further file note of Ms Purcell dated 18 December 2015 stating that he did not turn up ready to commence work that day.
Ms Kim Frakes, a Senior Safety and Well-Being Advisor within the Community Services Directorate, gave evidence. She told the Tribunal that the directorate was unable to offer Mr Koker work during the relevant period because of a specific restriction on the medical certificate that we were unable to accommodate in the work area at that time. She explained that Bimberi is a custodial environment in which all staff on shift need to have a radio to communicate with other staff in case an incident occurs. She said:
We are unable to specifically stop contact between the two workers within the workplace due to the radios and all staff needing to speak over all those radios at any time during the shift.
Mr Koker made allegations of bullying/harassment against Mr Kibbey. On 12 October 2015 he submitted a claim for workers compensation in respect of anxiety and depression which he said he first noticed on 20 May 2015, and sought treatment for the following day. The claim was accompanied by a medical certificate provided by Dr Syed, who reported he developed anxiety and depression on 20 May 2015 as a result of poor behaviour and abused behaviour by his supervisor at work on 20.5.15. On 18 December 2015 Comcare denied liability for an adjustment reaction with mixed emotional features. Mr Koker sought an extension of time to lodge a request for reconsideration, but subsequently decided not to pursue his claim.
On 24 June, 22 July, 2 September, 16 September and 9 December 2015, Comcare issued determinations that Mr Koker was entitled to incapacity payments pursuant to s 19 of the Act in respect of his accepted knee condition. The determinations covered the period 21 May 2015 to 12 January 2016 (the relevant period). However, Comcare undertook a reconsideration of those determinations on its own motion, and on 27 April 2016 decided that:
(a) The Applicant was able to earn in suitable employment at 36:45 hours per week in the period 21 May 2015 to 12 January 2016;
(b) The Applicant is entitled to compensation in the amount of $467.66 under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for incapacity arising in the period 21 and 22 May 2015;
(c) The Applicant is entitled to compensation in the amount of $793.80 under section 19 of the SRC Act for incapacity arising in the period 23 May to 7 October 2015; and
(d) The Applicant is entitled to compensation in the amount of $812.96 under section 19 of the SRC Act for incapacity arising in the period 8 October 2015 to 12 January 2016.
The effect of the 27 April 2016 determination was that Mr Koker was entitled to $24,949.80 less than he had been paid under s 19 up until that date. The Tribunal was told that he had been asked to repay that amount.
On 15 June 2016 Mr Koker applied to the Tribunal for review of the reviewable decision of 27 April 2016.
The medical evidence
On 25 March 2015 Mr Koker’s treating clinical psychologist, Dr Rachel Lacey, prepared a report in which she noted that he had been seen for seven sessions previously by her colleague, clinical psychologist Mark Collins. She recommended:
Since the assessment revealed high levels of anxiety and evidence of depression, Mr Koker may respond well to cognitive behaviour therapy for anxiety and depression, as well as CBT and mindfulness skills to help cope with his pain and reduce interference in his life.
On the 31 March 2015 Dr Lacey wrote to Dr Syed, saying:
In my clinical opinion [Mr Koker’s] fears regarding safety and vulnerability are currently exacerbating his mood and pain. If these fears are realistic then this is a barrier to recovery.
Mr Koker said that the treatment by Mr Collins and Dr Lacey had been paid for by Comcare.
Mr Koker was examined by Dr Doron Samuell, a clinical psychiatrist, on 27 May 2015 at Comcare’s request. His opinion was sought for the purpose of ascertaining if Mr Koker suffers from a psychiatric condition secondary to his accepted [knee] condition. Dr Samuel opined that Mr Koker did not have a psychiatric condition but did have difficulty in adapting to the alteration in his physical functioning arising from his knee condition. He recommended both psychological counselling and the use of an antidepressant. He said that psychological treatment could help with his pain management.
In a report dated 29 May 2015, Dr Peter Wilkins, occupational physician, opined:
Mr Koker’s continuing anxiety state makes a return to pre-injury duties unlikely, even in the long-term…
Commenting on barriers that prevent Mr Koker performing his full duties, Dr Wilkins said:
The principal barrier is his anxiety with panic attacks, resulting in an increased perception of pain. In my opinion, his referral to a consultant psychiatrist for review and management represents the only pathway with any chance of returning him to his former employment role.
Mr Koker was assessed by Dr Zsadanyi (Consultant Psychiatrist) on 8 December 2015 in respect of his claim for anxiety and depression. Dr Zsadanyi diagnosed a likely adjustment disorder with symptoms of anxiety and depression. He noted that Mr Koker did not report any clear past psychiatric history prior to the claimed date of injury, 20 May 2015. Dr Zsadanyi stated:
Mr Koker remains off work and appears to be debilitated by the severity of his symptoms to such a degree that he will not currently be able to work in any capacity even in an alternate work environment.
He observed that 20 May 2015 is about the time when Mr Koker would have demonstrated clinically identifiable symptoms of the adjustment disorder.
In a report dated 17 December 2015 Dr Antonella Ventura, a Consultant Forensic Psychiatrist, reported the following history:
He told me that the second issue what was affecting him was his relationship with one of his team leaders. He told me that this particular manager had been harassing and bullying him since the beginning of his employment.
…
Mr Koker reported that on 20 May 2015 he called his team leader for clarification of an issue. He did not want to discuss the issue. He said that the team leader would not answer his query and he left without listening to him. Mr Koker reported that he felt humiliated by this behaviour and felt undermined. He told me that he felt angry, frustrated and scared of this team leader.
He told me that since then his mood has not improved. He reported feeling frustrated, not happy, not sleeping and “really saddened”.
Dr Ventura noted that:
Given Mr Koker’s anxiety about re-injuring his knee and his sense of distress and angst dealing with his return to work it is my opinion unlikely that he will be ever be fit to return to his duties and hours as a Youth Detention Officer within Community Services Directorate (CSD). (sic)
Dr Ventura commented that Mr Koker was obviously displaying significant anger and resentment towards one of his supervisors. She diagnosed adjustment disorder with anxiety and reported that he could work 20 hours per week initially, in a role which would not be detrimental to his knee. She recommended workplace mediation.
Dr Syed gave evidence by telephone to the Tribunal. He first began to treat Mr Koker in 2013, following his knee injury. He told the Tribunal that the mental issue he identified during Mr Koker’s return to work process prior to 21 May 2015 was associated with the knee condition. He was referred to the restriction he included in his medical certificate of 21 May relating to contact with Mr Kibbey, and was asked:
…was it your opinion at the time of imposing that restriction that that was in part due to his accepted compensatable knee injury?
He responded:
Definitely, yes.
Dr Syed opined that Mr Koker may have aggravated his psychological condition if he had been exposed to employment after 21 May which included contact with Mr Kibbey.
Under cross-examination, he agreed that Mr Koker’s capacity – in terms of his physical capabilities – to undertake his return to work plan was not affected by the restriction he imposed in his medical certificate of 21 May. However, he later appeared to resile from this position. He was asked a number of times to explain how having no contact with Mr Kibbey related to Mr Koker’s physical capacity to carry out his duties, but his answers were difficult to understand. (Dr Syed’s English was poor, he appeared not to comprehend some of the questions and his answers were frequently garbled and hard to follow.)
The relevant legislation
Section 14 of the Act is sometimes referred to as the gateway through which entitlement to compensation under the Act generally must pass. It provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Injury is defined in s 5A:
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
A worker’s entitlement to incapacity payments for an accepted condition is set out in s 19. Relevantly, the section provides:
19Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
…
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment (including self‑employment)—the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour‑market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant.
The expression suitable employment is defined in s 4 as follows:
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee’s age, experience, training, language and other skills;
(ii)the employee’s suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter; and
(b)in any other case—any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
Section 4(9) further defines the expression incapacity for work:
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
The knee condition which Comcare accepted on 29 July 2013 persists. The condition has generated an entitlement to compensation under s 19 from that date until the date of the hearing before the Tribunal. The dispute in these proceedings relates to only part of that period: 21 May 2015 to 12 January 2016. It was common ground between the parties that Mr Koker was incapacitated for work as a result of his accepted knee condition in this period. What was in dispute was the extent of Mr Koker’s incapacity for work – a matter which is determinative of his level of entitlement to compensation.
Mr Koker contended that from late 2014 until it least 21 May 2015 he was receiving treatment for a psychological condition related to his accepted knee condition. It was contended that this psychological condition was the sequela of the knee condition. As such, any incapacity for work attributable to this psychological sequela in the relevant period was as a result of a compensable injury (i.e. one which meets the definition of an injury in s 5A). If the incapacity for work results from a compensable injury, compensation for lost earnings is payable pursuant to s 19.
Comcare’s contention was that any psychological condition Mr Koker suffered in the relevant period was not the sequela of the accepted knee condition. Any incapacity for work arising from the psychological condition could not, therefore, entitle Mr Koker to compensation under s 19.
The Tribunal must thus determine the nature and cause of whatever incapacity for work affected Mr Koker in the relevant period.
Consideration
Mr Koker’s incapacity for work 21 May – 6 October 2015
Section 19 affords rights to an employee who is incapacitated for work as a result of an injury. Injury is defined (through ss 4 and 5A) to include a disease, an injury (other than a disease) and an aggravation of an injury. Having established the existence of an injury, a right to compensation is unlocked where that injury results in death, incapacity for work, or impairment (s 14). The importance of the threshold to entitlement which s 14 represents was explained by the Tribunal in Dunkerley and Comcare [2014] AATA 381 at [18]:
The question of MsDunkerley’s entitlement to compensation for medical treatment expenses and incapacity for work on and after 2 March 2009 is to be determined under the SRC Act. The existence of an ‘injury’ under s 5A is central. An ‘injury’ includes a ‘disease’, being an ailment or an aggravation of an ailment to which the particular employment contributed to a significant degree. If an ‘injury’ exists, under s 14 Comcare(or a licensee) is liable to pay compensation to the injured employee ‘in accordance with this Act’ if the injury results in death, incapacity for work or impairment. Once this threshold is passed, the injured employee’s entitlement to compensation (and Comcare’s liability to pay) lies open to be tested from time to time under any relevant head of entitlement the Act provides.
Having passed through the threshold of s 14, the employee’s access to compensation is regulated by particular provisions of the Act. In the case of incapacity payments, compensation is determined by the extent to which the compensable injury reduces the employee’s capacity to earn at the rate they could prior to the injury. Member Webb outlined the mechanics of this process in Kavas and Comcare [2011] AATA 935 at [12]:
Under sections 14 and 19 of the Act, an injured employee may be entitled to compensation if he or she suffers an incapacity for work ‘as a result of’ an ‘injury’. An ‘injury’ includes a ‘disease’ or an ‘aggravation’ of an injury or a disease … The term ‘incapacity for work’ is explicated in section 4(9). As can be seen, an incapacity suffered by an employee includes an incapacity to engage in any work or in work at the same level as the work in which the employee was engaged prior to injury. If it is established that, as a result of an injury, an employee is incapacitated for any work or for work at the same level as prior to the injury, the quantum of weekly compensation that is payable is to be determined under section 19. It should be noted that weekly compensation is payable in respect of an injury; the extent or degree of incapacity affects the amount of compensation that may be payable. (References omitted)
Member Webb in Dunkerley examined the nature of the causal relationship between injury and incapacity (at [22]):
The phrase ‘as a result of’ involves causation, but the operative element is not limited to “the immediate proximate cause of incapacity”. It refers to a relationship of cause and effect that is less direct than the term ‘caused by’ – the emphasis is on the ‘result’ or the effect, rather than on the proximity of cause and effect. Where the sequence of events reveals more than one injury or other alleged causes of incapacity, a commonsense assessment of the causal chain is required in order to determine whether the initial injury is an effective or operative cause of the incapacity such that compensation is payable. (References omitted)
Where several alleged causes of incapacity arise, each must be assessed for its contribution to the employee’s incapacity for work. What matters, in establishing a right to compensation under s 19, is that a cause can be considered the effective or operative cause of the incapacity, though not necessarily the proximate one.
What were the cause or causes of Mr Koker’s incapacity for work in the relevant period? If more than one cause, to what extent did each contribute to his incapacity for work?
The evidence before the Tribunal supports the conclusion that there were two causes of incapacity affecting Mr Koker in the relevant period. The first was the lingering but persistent legacy of his 2013 fall: the knee condition. The second was the medically-mandated requirement (derived from the medical certificates of Dr Syed) not to work in the same environment as his supervisor, Mr Kibbey. For reasons explained below, the Tribunal finds that any incapacity arising from the first cause is compensable under s 19, and any incapacity arising from the second cause is not.
It was accepted before the Tribunal that the knee condition, having passed through the liability threshold of s 14, gives rise to some entitlement under s 19. The determination of 27 April 2016 – the reviewable decision – purports to address that entitlement by awarding Mr Koker compensation representing the difference between the amount he could have earned prior to his 2013 fall and the amount he could earn based on a (slightly shorter) working week of 36.45 hours, as required by the formula in s 19(2). The reviewable decision calculates his entitlement on that basis (though imperfectly, in my opinion, as discussed below). The entitlement arises directly from the physical limitations imposed on his capacity for work by the state of his knee.
The incapacity arising from the second cause was said to make it impossible for Mr Koker to work in an environment that included Mr Kibbey. In this context suitable employment pursuant to s 19(2), if the subsection applies, would be employment outside that environment. Based on the evidence, the Tribunal considers that this incapacity relates to other (probably psychological) factors which are not the result of a compensable work-related injury. Put another way, the effective or operative cause of this incapacity for work, though a work-related cause, is not the product of a compensable injury.
On 12 October 2015 Mr Koker submitted a workers compensation claim based on bullying and harassment by Mr Kibbey. Liability for that claim was rejected by Comcare, and reconsideration of that decision was not pursued by Mr Koker. Had that claim led to a determination of liability for an injury under s 14, that injury would most probably have established a cause for the incapacity for work he experienced in the relevant period. But no such determination has been made, and the Tribunal lacks the power to make such a determination on a claim for compensation which has not passed through the stages mandated in the Act, particularly, in this case, reconsideration under s 62. The Tribunal has searched in vain for an alternative compensable injury which might serve as a cause of this incapacity.
Counsel for Mr Koker argued that the incapacity arises from the first cause, not the second cause. Counsel contended that the incapacity arising after 20 May 2015 was incapacity which was the result of a psychological injury, being a secondary injury, or a sequela, of the knee condition. The Tribunal, however, is unable to find that there was a compensable psychological condition on which an entitlement to incapacity might be based. There are two bases for that conclusion.
The first is that, if there was a psychological condition secondary to the physical knee condition, that condition has not passed through the threshold of s 14, and so cannot constitute an injury for the purposes of s 19.
Even if I am mistaken about the pre-requisite of a s 14 determination, and the Tribunal has the capacity to determine for itself whether a secondary injury or sequela exists, there is a second basis on which to conclude that it does not exist. That basis is that the facts before the Tribunal do not support that conclusion.
None of the psychiatric evidence is consistent with that conclusion. Dr Samuell, the only psychiatrist to examine Mr Koker in the first half of 2015, came to the view that he did not have a psychiatric condition but did have difficulty in adapting to the alteration in his physical functioning arising from his knee condition. The reports of Dr Zsadanyi and Dr Ventura late in 2015 were commissioned following the claim of bullying and harassment made in October 2015, and neither report specifically focuses on mental injury arising from the knee condition. Dr Ventura diagnoses an adjustment disorder with anxiety but provides no date of injury. Dr Zsadanyi, on the other hand, observed that Mr Koker did not report any clear past psychiatric history prior to the claimed date of injury, 20 May 2015, and considered that clinically identifiable symptoms of the adjustment disorder occurred at about that time.
From late 2014 until at least May 2015 Mr Koker was receiving treatment for psychological issues related to his accepted knee condition, including treatment by psychologists Dr Lacey and Mr Collins. Dr Lacey diagnosed high levels of anxiety and evidence of depression in March 2015. Mr Koker placed emphasis on the fact that Comcare paid for the treatment by Dr Lacey and Mr Collins, although I consider that that fact by itself is not conclusive as to the existence of a compensable psychological injury.
Dr Syed gave evidence that the restriction on employment he specified in his medical certificates was in part due to Mr Koker’s accepted compensable knee injury, but when pressed under cross-examination seemed unable to explain the basis for that opinion. Understanding the logical foundation on which an expert witness provides their opinion is an intrinsic part of the work of the Tribunal, as it is of courts. The UK Supreme Court in Kennedy v Cordia (Services) LLP [2016] UKSC 6 at [48] observed:
An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or “bare ipse dixit” carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh 1953 SC 34, 40. If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless. Wessels JA stated the matter well in the Supreme Court of South Africa (Appellate Division) in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352, 371:
“[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.”
As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604: “As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.”
With respect, it appears to the Tribunal that Dr Syed might have conflated the risk of re-injury to Mr Koker’s knee, or Mr Koker’s fear of such re-injury, should he be working in proximity to Mr Kibbey, with a psychological injury arising from the knee condition itself. Such reasoning might have constituted evidence of a link between the accepted knee condition and the incapacity in question, had it been cogently presented in that way. But it was not so presented, and the Tribunal is unable to address this deficiency with supposition or conjecture.
Counsel for Mr Koker also proposed that the Tribunal should give greater weight to the evidence of Dr Syed because he appeared and was available to be cross examined, whereas authors of the other medical evidence were not. I cannot accept that submission in this case as Mr Koker sought to call Dr Syed only after the commencement of the hearing, and leave was granted over the objection of Comcare. To elevate his testimony above other medical evidence would be unfair to Comcare.
On reviewing the medical evidence, the Tribunal prefers the opinions reached by Drs Samuell and Zsadanyi over those reached by Dr Lacey and Dr Syed. It cannot be satisfied that there was a secondary psychological injury to the knee condition.
Even if there was a psychological injury which could be regarded as a secondary injury, or sequela, of the knee condition, the evidence does not satisfy the Tribunal that this injury was the effective or operative cause of the incapacity related to working with Mr Kibbey. On the contrary, the evidence strongly points to Mr Koker’s interaction with Mr Kibbey on 20 May 2015 as the cause of the condition he presented to Dr Syed with that day.
The various Comcare Return to Work Suitable Duties Plans dated March and April 2015 were prepared in consultation with Mr Koker. He agreed in the witness box that each iteration of the plan reflected his, and his GP’s, input, and each appears to account for his capacity to work within the constraints of his knee condition. The last of these, Plan No 3a dated 30 April 2015, provides for Mr Koker to work normal hours up to a maximum of eight hours per day, to supervise detainees and undertake administrative duties. The only constraints appear to have been drafted with the limitations of his knee condition in mind: breaks in the morning and afternoon, no running, avoiding violent detainees and not being left alone with detainees. Previous psychological dysfunction is referred to in the plan but does not appear to significantly impinge upon his capacity to work a relatively normal working week.
This situation changed dramatically following the altercation with Mr Kibbey on 20 May. Dr Syed’s medical certificate of 21 May makes no change to the physical constraints on Mr Koker’s employment, but adds the requirement of no contact with Mr Kibbey. Dr Syed would himself later refer to the poor behaviour and abused behaviour by his supervisor at work on 20.5.15 as the basis for the workers compensation claim of 12 October 2015. The dominant role of the events of 20 May on the subsequent work restriction seems inescapable. Although it is in theory possible that a latent psychological injury relating to his knee emerged coincidentally on around 20 May, it is far more likely that the restriction on work of 21 May responds squarely to the events of the previous day.
The Tribunal was referred to the remarks of Member Webb in Kavas (at [41]-[42]) in which he cautions against the assumption that a novus actus interveniens extinguishes the effect of an existing contribution to incapacity. Mr Koker characterised the altercation of 20 May as a novus actus. The present case is not an instance of that scenario, however; there was no existing contribution here for the novus actus to extinguish.
Nor is the present case analogous to the factual situation facing the Tribunal in Sambastian and Australian Postal Corporation [2017] AATA 448, to which I was referred. There the Tribunal held that duties offered to the applicant which caused a potentially compensable aggravation of a pre-existing condition could not constitute suitable employment within s 4 of the Act. There, a pre-existing condition was found to exist; here, I am not persuaded that there was a pre-existing psychological condition capable of being aggravated by the events of 20 May.
As previously stated, a determination that the altercation of 20 May 2015 caused a compensable injury would probably furnish the effective or operative cause of the incapacity in the relevant period. In its absence, and in the absence of an alternative cause of incapacity beyond the one on which the reviewable decision is based, Mr Koker must fail in his bid for compensation in the period 21 May to 6 October 2015 beyond what the reviewable decision has already conferred on him.
Mr Koker’s incapacity for work 7 October 2015 – 12 January 2016
The Tribunal takes a different view of the period 7 October 2015 – 12 January 2016. This is because, as of 7 October, the restriction that had appeared periodically in Dr Syed’s medical certificates in relation to Mr Kibbey disappears. From that date, it appears that the only restriction on Mr Koker’s capacity for work is the state of his knee, an incapacity which is the result of a compensable injury.
There is no dispute that during this later period Mr Koker suffered an incapacity to work due to his knee condition. The reviewable decision of 27 April 2016 is premised on such an incapacity. Section 19(2) sets out the formula whereby the amount of compensation payable due to an incapacity is calculated. That formula, in essence, is the amount an employee was earning prior to their injury less the amount (AE in the formula) they are now able to earn in suitable employment (see ss 8 and 9). Suitable employment is defined in s 4 to mean employment by the employer in work for which the employee is suited having regard to such factors as age, training, suitability for rehabilitation and any other relevant matter.
In s 19(4) guidance is offered to Comcare on the meaning of the expression the amount per week that an employee is able to earn in suitable employment. The paragraphs of the subsection refer inter alia to an employee being offered suitable employment but failing to accept it; an employee accepting an offer of suitable employment but failing to engage, or continue to engage, in that employment; and an employee failing to seek suitable employment. In paragraph (g), it allows Comcare to have regard to any other matter that Comcare considers relevant.
The reasonable inference to be taken from these provisions is that, in securing an entitlement to compensation under the section, an employee with some capacity to work should be diligent in seeking out and taking up whatever opportunities for work with their employer that their level of incapacity allows. In addition, paragraph (f) allows Comcare to consider whether a failure to seek out or take up such opportunities is reasonable in all the circumstances.
A deliberate decision by an employee to eschew employment for which they were suitable based purely on personal preference would not reduce the amount they might be considered able to earn: Goodricke v Comcare (2011) 122 ALD 546 at [32].
The corollary of this expectation on the employee that they should accept any opportunity for suitable employment is that, where no opportunities are presented, or can reasonably be secured, their ability to earn should be considered reduced commensurately. As observed by the Federal Court in Woodbridge v Comcare [1994] FCA 558 (at [47]):
The reference to other relevant matters to which Comcare shall have regard, is not a reference just to matters which might disentitle the employee to compensation. It includes, as well, matters which could entitle the employee to compensation, notwithstanding the existence of one or other of the matters in paras.(a) to (e).
The application of these principles in the present circumstances is hampered by some lack of clarity in the evidence. As indicated above, the restriction relating to working with Mr Kibbey was no longer included in medical certificates issued by Dr Syed from 7 October 2015. Counsel for Comcare asserted that, nonetheless, Mr Koker’s
…concern that arose out of the bullying and harassment claim remained a fixture of the timeline that even post-dated the removal of that condition regarding Mr Kibbey.
Counsel noted that the bullying and harassment claim remained a live issue following 7 October 2015, and that occupational health and safety obligations on the directorate mandated that they should not expose Mr Koker to possible further injury should he return to work at Bimberi.
I do not accept that these concerns should resonate in the question of Mr Koker’s ability to earn pursuant to s 19(2). Although a claim for bullying and harassment remained on foot, the medical restriction on contact with Mr Kibbey had been removed. Mr Koker made reference in his evidence to a mediation involving Mr Kibbey in October 2015. Excessive caution of the directorate’s part ought not, in my opinion, to have deprived Mr Koker of the opportunity to return to employment. The Tribunal notes the evidence that when Mr Koker did return to employment in mid-January 2016 it was not, in fact, at Bimberi. This gives rise quite reasonably to the question: why, either before or after the removal of the medical restriction on 7 October, was employment for Mr Koker apparently not considered in a location other than Bimberi?
A tendered file note of Ms Purcell dated 7 December 2015 purports to record a phone conversation with Mr Koker where he advised that he was unfit to work at that time. However, Ms Purcell was not called as a witness, Mr Koker denied telling her that and the assertion is, in any case, inconsistent with the medical certificate from Dr Syed then in force. I do not accept this evidence of Ms Purcell. In relation to a further file note of Ms Purcell dated 18 December 2015, indicating that Mr Koker was not ready to commence work that day, Mr Koker gave evidence at different points that he had, and had not, worked on that day. This inconsistency was not explored. I accept, however, that he was not prepared to work that day.
From 7 October 2015 Mr Koker does appear to have been physically and psychologically capable of doing a job similar to that which he had been doing prior to 20 May 2015. He was, in other words, capable of engaging in suitable employment. However his ability to earn in suitable employment was constrained by the lack of any available work on the part of his employer. I find that he was diligent in seeking that work, but none was available. I find that his failure to undertake any work was reasonable, as per s 19(4)(f). It follows that, in the period 7 October 2015 to 12 January 2016, the amount which represents AE in the formula in s 19(2) is nil.
One further observation
The effect of this decision is that Comcare’s decision to withdraw Mr Koker’s incapacity payments relating to the period 21 May to 6 October 2015 is affirmed. It is affirmed because under the terms of the Act the correct or preferable decision is that there was no compensable injury on which an incapacity for work could be founded in that period.
The Administrative Appeals Tribunal Act 1975 requires the Tribunal to pursue the objective of providing administrative review which is fair, just, economical, informal and quick (s 2A). It is true, however, that the proper application of the relevant law sometimes renders some of these objectives unachievable. In this case the outcome, though in accordance with the law, cannot be regarded as entirely just.
After the issuing of his doctor’s medical certificate on 21 May 2015 Mr Koker was sent home by his employer, and told to stay there. He was told to please remain at home, until further notice, pending the identification of suitable duties. The essence of this instruction was reiterated, it seems, for most of the succeeding nine months. Counsel for Mr Koker characterised the repeated indications to him not to come to work as, effectively, a direction from his employer. That characterisation is apt.
Throughout this period he was paid incapacity payments pursuant to s 19 of the Act. After the end of this period, and following his return to work at the directorate, this decision was reversed. It was reversed notwithstanding that there was no dishonesty on Mr Koker’s part, no new information was revealed regarding his medical condition and he had sought repeatedly during this period to return to employment. As a result of the reversal of the decision, Mr Koker – a former refugee with a young family – will be forced to repay more than $10,000 he had previously been led to believe by Comcare that he was entitled to receive.
I consider Comcare’s stated decision to recover this amount from Mr Koker to be unconscionable. Mr Koker has relied on Comcare’s implicit representations – that he was entitled to incapacity payments while he was directed to remain away from work – to his significant financial detriment. Had he been told early in this period that he was not entitled to this support, he would have had the option of quitting his position and seeking employment elsewhere. But he was not told this, and he now incurs a substantial debt which was entirely avoidable had Comcare dealt with him fairly.
Comcare is to be commended for the efforts it has made in recent years to reduce the premiums paid by its employer clients. If its efforts to reduce costs extend to unethical tactics such as those employed against Mr Koker in this case, however, this effort must be regarded as much less commendable than it might first have seemed.
Decision
The Tribunal affirms that part of the reviewable decision of 27 April 2016 as relates to the period 21 May 2015 to 6 October 2015, and 18 December 2015. The Tribunal remits to Comcare that part of the reviewable decision as relates to the period 7 October 2015 to 12 January 2016 (but excluding 18 December 2015) with the direction that:
(i)it assign AE in the formula in s 19 a value of nil; and
(ii)it take into account leave taken by Mr Koker, public holidays during this period and days worked by Mr Koker.
Pursuant to s 67 of the Act, Comcare is to pay Mr Koker’s costs in these proceedings, as agreed or taxed.
I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
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Associate
Dated: 4 September 2017
Date(s) of hearing: 17 & 18 May 2017 Date final submissions received: 18 May 2017 Counsel for the Applicant: Mr Karl Pattenden Solicitors for the Applicant: Slater & Gordon Lawyers Counsel for the Respondent: Ms Kristie Katavic Solicitors for the Respondent: Sparke Helmore
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