Kroes and Comcare (Compensation) - [2021] AATA 1917

Kroes and Comcare (Compensation) [2021] AATA 1917 (23 June 2021)
Division:GENERAL DIVISION
File Number: 2019/7241 & 2020/2846
Re:Janet Kroes
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Member Ward
Date:23 June 2021
Place:Adelaide

The Tribunal sets aside the reviewable decisions.
...........................[Sgnd]................................
Member Ward
CATCHWORDS
COMPENSATION – Workplace bullying – treatment costs – use of clinical framework for the delivery of health services – medical opinions needing to be based on factual findings
LEGISLATION
Safety, Rehabilitation, and Compensation Act (1988)
CASES
Alamos and Comcare [2014] AATA 629
D’Amico and Comcare [2018] AATA 54
Precup and ASP Ship Management [2015] AATA 467
Ramsay v Watson (1961) 108 CLR 642
SECONDARY MATERIAL
Clinical Framework for the Delivery of Health Services
REASONS FOR DECISION
Member Ward
23 June 2021
INTRODUCTION

Mrs Kroes (“the Applicant”), has two claims for a determination before the Tribunal.
The Applicant had a claim for compensation arising out of her perception of workplace issues with another employee Mr Gary Chan, a fellow employee under training, culminating in an incident which occurred on 11 May 2012 and was continued by her perception of the stance taken by her employer, the Department of Families, Housing, Community Services and Indigenous Affairs (the “Employer”) in dealing with the claim.
Her claim for compensation was accepted by a decision on 17 August 2012 for “adjustment reaction with mixed emotional features”.
This decision was reconsidered and on 10 December 2012, the Review Officer decided that the determination of 17 August 2012 was correct.
That decision referred to submissions put by the Employer Department, which concluded that Mr Chan’s co-workers “may have perceived that he was angry as he had been in significant pain due to a medical issue”.
This claim was further considered on 2 July 2013, the Comcare delegate (“the Respondent”) deciding that the Applicant continued to suffer from the effects of her condition “adjustment reaction with mixed emotional features”. It is significant that at that time, the General Practitioner certified the Applicant as being fit to return to work, but not at the previous workplace. This view was supported by Dr Gertler who reported to Comcare that the Applicant would be prone to relapse if she were to go back to work with the trainee Mr Chan, who caused her to develop the accepted condition.
It is noted that challenges were made to these determinations by the employing department. A challenge to the decisions was also commenced in the AAT in 2013. That challenge was discontinued and so, for a considerable period of time, the Applicant’s claim has been accepted and she has received treatment for the injuries. She has received assistance by way of a return to work program. She was treated by the Psychologist, Mr Goodluck
A request for funding of the psychological treatment with regard to her ongoing problem was made. This related to the payment for ten psychological consultations for treatment to be arranged with Mr Goodluck.
By determination dated 17 June 2019 that request was denied.…

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 Kroes and Comcare (Compensation)

Details

AGLC: Kroes and Comcare (Compensation) [2021] AATA 1917
Case: [2021] AATA 1917
Decision Date: 23 June 2021

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Ms Kroes, against two reviewable decisions made by Comcare. The dispute centred on Ms Kroes' entitlement to compensation for treatment costs related to a workplace injury, specifically arising from alleged bullying by a colleague, Mr Chan, during her employment with the Department. The Administrative Appeals Tribunal (AAT) was tasked with determining whether Ms Kroes continued to suffer from her accepted injury and required further treatment.

The AAT was required to consider the nature of the Applicant's accepted injury, which stemmed from her interactions with Mr Chan. The Tribunal needed to assess whether the Applicant's perception of Mr Chan's behaviour, including his alleged uncooperative attitude, anger, and intimidating manner, constituted workplace bullying and contributed to her ongoing condition. Crucially, the AAT had to determine if the medical opinions supporting the need for further treatment were adequately based on factual findings regarding the Applicant's injury and its ongoing impact.

The Tribunal found that the Applicant continued to suffer from her accepted injury and required treatment. It accepted the Applicant's evidence regarding her problematic relationship with Mr Chan, noting that departmental investigations corroborated difficulties experienced by others with him. The AAT specifically accepted that the Applicant had a pre-existing perception of animosity from Mr Chan, which was exacerbated by an incident on 11 May 2012. Based on this, the Tribunal set aside the reviewable decisions.

Consequently, the AAT ordered that the two reviewable decisions be set aside. The Applicant was awarded the costs of ten further psychological treatments with Mr Goodluck, and if she had already paid for these treatments, she was to be reimbursed at the schedule rate. The Applicant was also awarded her costs of the action.

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

Therefore, a decision to reject a claim of ten treatments from Mr Goodluck will be set aside. As at the date of this decision, the amount of compensation payable to the Applicant shall include the costs of ten further psychological treatments with Mr Goodluck. In the event she has had the treatment but has paid for it herself, she should be reimbursed at the schedule rate of the costs of the treatment she has had with Mr Goodluck from the time of the decision until this order.DECISION The reviewable decisions in matter numbers 2019/7241 and 2020/2846 are set aside. The Applicant is to have her costs of the action, to be assessed by the Tribunal if not agreed.

Ratio Decidendi

Legal Principle Established

For reasons set out below, the Tribunal finds that the Applicant continues to suffer from her accepted injury and requires treatment for it, thus the two reviewable decisions will be set aside. CONSIDERATION The Applicant was born on 11 September 1962. She was employed by the Department in 2008. She performed administrative clerical duties. During the course of her employment, the Applicant dealt with a fellow employee, Mr Chan, who was under training this was in 2012. Whilst the claim was accepted, it is important to re-establish the background events. In the course of her duties, it was necessary for the Applicant to direct Mr Chan to undertake certain tasks. This was a problematic relationship. The Applicant’s perception was that Mr Chan would not cooperate with her directions and would become angry with her when she made suggestions. She also indicated this occurred to other people and that is confirmed by a departmental investigation that had taken place around these incidents. That is, others had described difficulties with Mr Chan. These difficulties culminated to a degree in events which occurred on 11 May 2012 when Mr Chan was asked to assist with moving a table. The particulars of such event are well set out in Dr Reutens report of 23 July 2013. The Applicant told the Dr Reutens that in April 2012 she advised her superiors that Mr Chan was not coping with the work. He was unable to prioritise work and would anger easily. The Applicant indicated that she and her co-worker were frightened to ask Mr Chan to undertake duties because he would snarl. She was intimidated by him. There was an incident in which Mr Chan was asked by the Applicant to deliver paper to another level several times. When she checked, it had not been done. The incident occurred while she was asking Mr Chan to assist her with moving a table to a different level on 11 May. Her allegation is that Mr Chan pushed her away with his body, slammed the table onto a trolley, had difficulty manipulating the trolley through glass doors, and was acting in a rough way. The actual physical incident itself is not particularly momentous, but it is clear from her evidence, and the Tribunal accepts, that prior to this incident of moving the table, the Applicant had concerns in dealing with Mr Chan due to his manner. She gave an instance when she was going to the shop and would ask Mr Chan and others if they wanted a coffee. She found his response to be intimidating. She was questioned as to why she would offer to get a coffee for somebody she did not get on with. The Tribunal rejects any implied criticism of her for that offer. It would be usual in an office situation that a person who was wanting to get on with somebody who did not seem to be pleasant to make that offer. It would be antagonistic for example if the Applicant were to ask everyone except Mr Chan if there was something she could get them at the shop. Thus, when the incident occurred, the evidence supports that there was a pre-existing level of animosity or antipathy from Mr Chan perceived by the Applicant.