Koker and Comcare (Compensation)

Case [2017] AATA 1432

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

  1. 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.

  2. Mr Koker has sought administrative review of that decision by the Tribunal.

    BACKGROUND

  3. 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.

  4. 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

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AGLC
Koker and Comcare (Compensation) [2017] AATA 1432
Case
[2017] AATA 1432
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Koker for administrative review of a decision made by Comcare. Mr Koker, a youth worker, sustained a physical injury to his left knee in June 2013 while attempting to restrain a detainee. Comcare accepted liability for this knee condition. Subsequently, Mr Koker experienced psychological sequelae, including anxiety and depression, which he contended were secondary to his accepted physical injury and his subsequent return to work. The dispute centred on whether this psychological condition constituted a compensable injury under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) and, if so, its impact on his entitlement to compensation for incapacity for work.

The Tribunal was required to determine the nature and cause of Mr Koker's incapacity for work during specific periods. This involved assessing whether the psychological condition was an "injury" as defined by the Act, which includes a disease or an aggravation of an injury, and whether it was an "effective or operative cause" of his incapacity. The Tribunal also needed to consider the application of section 19 of the Act, which governs compensation for incapacity, and how to calculate the appropriate compensation amount, particularly in relation to the "AE in the formula" component.

The Tribunal applied the principles established in cases such as *Dunkerley and Comcare* and *Kavas and Comcare*, which clarify that an employee is entitled to compensation if an injury results in incapacity for work. The phrase "as a result of" requires a commonsense assessment of the causal chain, not necessarily the immediate proximate cause. The Tribunal found that Mr Koker's psychological condition was an injury that resulted in his incapacity for work. It affirmed Comcare's decision regarding certain periods but remitted other parts for reconsideration.

The Tribunal affirmed the reviewable decision of 27 April 2016 in relation to the periods of 21 May 2015 to 6 October 2015 and 18 December 2015. However, the Tribunal remitted the part of the decision relating to the period 7 October 2015 to 12 January 2016 (excluding 18 December 2015) to Comcare with directions to assign a value of nil to "AE in the formula" under section 19 and to take into account leave taken, public holidays, and days worked by Mr Koker. Comcare was also ordered to pay Mr Koker's costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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)

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

The Tribunal must thus determine the nature and cause of whatever incapacity for work affected Mr Koker in the relevant period.ConsiderationMr 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)