KZBX and Comcare (Compensation)

Case [2024] AATA 1267

KZBX and Comcare (Compensation) [2024] AATA 1267 (22 May 2024)

Division:GENERAL DIVISION

File Number(s):      2021/5885
2022/3397

Re:KZBX

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Member R West

Date:22 May 2024

Place:Melbourne

In Matter 2021/5885:

The decision of the delegate of the Respondent dated 9 July 2021 affirming the determination dated 12 May 2021 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) in respect of head injury, loss of consciousness, seven fractured ribs, fractured left leg patella, fractured left wrist, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste is set aside and in its place the Tribunal determines that:

(a)on 25 November 2020, the Applicant suffered an injury, namely fractured ribs, fractured left leg patella and fractured left wrist, resulting in incapacity for work, which arose out of or in the course of her employment with Services Australia (Injury), and was the subject of a claim for compensation dated 6 April 2021;

(b)the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the Injury;

(c)the matter is remitted to the Respondent to determine the Applicant’s entitlements pursuant to ss 16 and 19 of the Act; and

(d)the Respondent is ordered to pay the Applicant's costs and disbursements in respect of Matter 2021/5885 in an amount agreed between the parties or, in default of agreement, as assessed by the Registrar or an officer of the Tribunal.

In Matter 2022/3397:

The decision of the delegate of the Respondent dated 20 April 2022 affirming the determination dated 14 March 2022 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) in respect of aggravation of post-traumatic stress disorder and aggravation of major depressive disorder with anxious distress, current episode moderate is set aside and in its place the Tribunal determines that:

(e)on and from 25 November 2020, the Applicant suffered an injury, namely post-traumatic stress disorder and aggravation of major depressive disorder with anxious distress resulting in an impairment to which her employment with Services Australia contributed to a significant degree, the subject of a claim for compensation dated 14 December 2021, (Injury);

(f)the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the Injury;

(g)the matter is remitted to the Respondent to determine the Applicant’s entitlements pursuant to ss 16 and 19 of the Act; and

(h)the Respondent is ordered to pay the Applicant's costs and disbursements in respect of Matter 2022/3397 in an amount agreed between the parties or, in default of agreement, as assessed by the Registrar or an officer of the Tribunal.

........[SGD]........

Member R West

Catchwords

WORKER COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – claim for fracture left radius (wrist), fracture left patella, fractured ribs, head injury, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste…

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AGLC
KZBX and Comcare (Compensation) [2024] AATA 1267
Case
[2024] AATA 1267
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of Comcare's decision to deny compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for injuries sustained by the applicant while working from home during a COVID-19 lockdown. The applicant claimed a range of physical injuries, including fractures to her wrist, patella, and ribs, as well as a head injury, seizures, neuropathic pain, neurological paralysis, and loss of smell and taste, following an incident where she was found injured on a footpath near her home while undertaking a work-related learning and development activity. Comcare had initially denied liability for these injuries, and subsequently denied a further claim for aggravation of pre-existing major depressive disorder with anxious distress and post-traumatic stress disorder, on the basis that the injuries did not arise out of or in the course of employment, and that her psychological condition was not significantly contributed to by her employment.

The court was required to determine whether the applicant's claimed physical and psychological injuries arose out of, or in the course of, her employment with Services Australia, and whether her employment had significantly contributed to the aggravation of her pre-existing psychological conditions. Specifically, the court had to consider the definition of "injury" under section 5A of the SRC Act, which includes physical or mental injuries arising out of, or in the course of, employment, or an aggravation of such an injury that arose out of, or in the course of, employment. The court also had to consider whether the incident, which occurred while the applicant was undertaking a designated learning and development activity away from her home, fell within the scope of her employment.

The court found that the applicant was engaged in a work-related learning and development activity at the time of the incident, which was scheduled during her work hours and recorded in the online system. The court accepted that the applicant sustained fractures to her left wrist, left patella, and ribs as a result of the incident. Furthermore, the court considered the medical evidence regarding the applicant's psychological condition, including reports from her treating general practitioner, psychiatrist, and psychologist, which indicated an aggravation of pre-existing PTSD, major depressive disorder, and anxious distress. The court noted that the applicant's perception of a breach of her medical privacy by her employer was identified as a significant cause of her mental health condition.

Ultimately, the court set aside Comcare's decisions and remitted the matters for reconsideration. The court determined that the applicant's physical injuries, including the fractures, arose out of and in the course of her employment, as she was undertaking a work-related activity at the time of the incident. The court also found that the applicant's employment had significantly contributed to the aggravation of her psychological conditions, particularly in light of the circumstances surrounding the incident and the subsequent handling of her injury by her employer.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This matter concerns an application for the review of a decision dated 20 April 2022, which affirmed a determination of 14 March 2022 to deny liability to pay compensation pursuant to s 14 of the SRC Act in respect of aggravation of post-traumatic stress disorder and aggravation of major depressive disorder with anxious distress, current episode moderate. BACKGROUND At all material times the Applicant was employed as an APS4 Service Liaison Officer with Services Australia. The Applicant claims that when working from home she sustained injuries consistent with a high collision impact while out walking and listening to a learning and development podcast away from her home during learning and development (L&D) time between 1pm and 2pm on 25 November 2020 (Incident). The Applicant submitted a claim for workers’ compensation dated 6 April 2021, in respect of the Incident claiming to have suffered: “head injury, loss of consciousness, seven fractured ribs, fractured left leg patella, fractured left wrist, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste”[1] (Claim A). [1] T3. By determination dated 12 May 2021,[2] a delegate of the Respondent denied liability to pay compensation under s 14 of the SRC Act in respect of Claim A on the basis that the delegate was not satisfied that the Applicant’s injuries arose out of, or in the course of her employment and while being satisfied that the Applicant had sustained injuries by way of a fractured left knee (patella), fractured left wrist and fractured ribs as a result of the Incident, was not satisfied that the Applicant sustained any head injuries, seizures or neuropathic pain as a result of the Incident (Initial Determination A). [2] T18. On, 9 June 2021 the Applicant requested reconsideration of the Initial Determination A.[3] [3] T23. On 9 July 2021 the Respondent affirmed the Initial Determination A[4] (Reviewable Decision A). [4] T28. On 24 August 2021 the Applicant applied to the Tribunal for review of the Reviewable Decision A[5] (Application 2021/5885). [5] T1. The Applicant submitted a further claim for workers’ compensation dated 14 December 2021,[6] in respect of “comorbidity involving the diagnose [sic] of two mental disorders: Major Depressive Disorder with Anxious Distress and Post Traumatic Stress Disorder” claimed to have been sustained “in the context of my injuries, and my employment with Services Australia” on 25 November 2020 (Claim B). [6] PT3. By determination dated 14 March 2022 a delegate of the Respondent denied liability to pay compensation pursuant to s 14 of the SRC Act in respect of Claim B on the basis that the Applicant’s employment had not significantly contributed to her psychological condition[7] (Initial Determination B). [7] PT15. On 21 March 2022 the Applicant requested reconsideration of Initial Determination B.[8] [8] PT18. On 20 April 2022 the Respondent affirmed the Initial Determination B[9] (Reviewable Decision B).[9] PT20.

Evidence

Evidence Before The Court

On the basis of this evidence the Tribunal accepts the Applicant’s assertion and finds that prior to 2011 she was the subject of domestic violence and that she had a pre-existing mental condition of PTSD, anxiety and depression resulting from it.Medical Evidence The Applicant’s treating general practitioner, Dr Reuben Phiri gave evidence that the Applicant had been treated at his clinic since 2014. He provided a standard medical certificate dated 18 October 2021 and reported that the Applicant suffered post traumatic amnesia for the incident in which she was injured and noting that she was referred to a psychologist to deal with the stress arising from this incident and from her workplace. It was not until 13 January 2022 that Dr Phiri included a reference to PTSD in his clinical notes.[80][80] Agreed Bundle at p.431. Dr Rajiv Siotia, a consulting psychiatrist, examined the Applicant on 17 February 2022 and concluded in his report of 1 March 2022[81] that ..the Applicant was suffering from PTSD and major depressive disorder with anxiety distress, current episode moderate and that this was an exacerbation of a pre-existing condition which had deteriorated since November 2020. [81] PT13 at pp.163-188. He added that.. if I was to agree with what the Applicant tells me, then ..employment has contributed to a significant degree to her current symptoms and conditions. She has stated that while she was quite unwell and in hospital her manager called her and questioned her about the accident. She has further stated that it was the same manager who spoke to her in 2017 and caused her mental health to deteriorate significantly at that time. If I was to accept this version of events then yes the Applicant’s employment has contributed by a significant degree to her condition. However, Dr Siotia noted that:..On balance, I find there are many inconsistencies between the history provided and supplied documentation and the history provided also seems to have changed over time. These lead me to question the accuracy of the history provided during my assessment.[82][82] PT13 at p.176. Dr Siotia was provided with further documentation including a statement by Ms Reihana regarding contact with the Applicant, her sister and her son following the Incident and the Applicant’s acknowledgement that Ms Moulynox had contacted her son because she had given her his number to keep her up to date as to her wellbeing. In his supplementary report of 16 February 2023[83] Dr Siotia confirmed his diagnoses that the Applicant was suffering from PTSD and a major depressive disorder and identified one of the significant causes of her mental health condition as the Applicant’s perception that her medical privacy was breached.[83] Exhibit R5. The Applicant’s treating psychologist Miguel Barreiro in a report dated 7 December 2021[84] diagnosed the Applicant as suffering from a ‘Major Depressive Disorder…with Anxious Distress and Post Traumatic Stress Disorder’. He stated in that report that ..the accident [the Applicant] suffered on 25 November 2020 had a significant negative impact on her physical and mental health. Furthermore the manner in which her work conducted an investigation of the incident had a compounding deleterious impact on [the Applicant’s] health.[84] PT7.

Decision

Reasons for decision

On 20 April 2022 the Respondent affirmed the Initial Determination B[9] (Reviewable Decision B).[9] PT20. On 22 April 2022 the Applicant applied to the Tribunal for review of Reviewable Decision B[10] (Application 2022/3397). [10] PT1.HEARING A hearing in relation to the applications for review was held on 9, 10, 11 and 12 October, and 15 April 2024. The Applicant was represented by Ms Cassie Serpell of counsel. The Respondent was represented by Mr Charles Clarke of counsel. In conducting the review, the Tribunal has had regard to:(a)the documents produced by the Respondent pursuant to s 37 and s 38AA of the AAT Act in relation to each of the matters (T Documents);[11] [11] In this decision, T Documents for Matters 2021/5885 are identified as ‘T’ documents and supplementary documents as ‘ST’ documents and T Documents in Matter 2022/3397 are identified as ‘PT’ documents.(b)an agreed bundle of relevant documents tendered jointly by both parties and numbered 1 to 493 (agreed bundle);(c)documents tendered by the Applicant and listed in Appendix A;(d)documents tendered by the Respondent and listed in Appendix A; and(e)the oral evidence of:(i)the Applicant;(ii)Ms Rita Catena;(iii)Ms Jennifer Rogers;(iv)Ms Melissa Reihana;(v)Ms Kristine Moulynox;(vi)Ms Robyn Geyer;(vii)Associate Professor Nick Paoletti, consultant psychiatrist;(viii)Dr Rajiv Siotia, psychiatrist; and(ix)Dr Reuban Phiri, general practitioner.LEGISLATIVE PROVISIONS Subsection 14(1) of the SRC Act 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. The term "injury" is defined in s 5A(1) to mean:(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.CONSIDERATION OF ISSUESThe Incident Without setting out the evidence in detail the Tribunal is satisfied that there are certain factual matters concerning the Incident giving rise to the Applicant’s claims in matters 2021/5885 and 2022/3397 which are not in dispute and which justify the following factual findings:(a)At all relevant times the Applicant was employed by Services Australia as a Services Liaison Officer. Her principal duties were to respond to customer telephone and email enquiries regarding human resources policies, employee entitlements and payroll matters.(b)The Applicant’s usual place of work was Service Australia’s People Advisory Centre (PAC) located in Box Hill but from July 2020 and at the time of the Incident she was directed to work from home as a result of restrictions imposed by the Victorian government in response to the COVID-19 pandemic.[12](c)Her home was in Chirnside Park, Victoria in a gated estate incorporating the Heritage Golf Club off Heritage Road.(d)On 25 November 2020 the Applicant’s work schedule provided for her to undertake a one hour Learning and Development (L&D) activity between 1.30 and 2.30 pm.(e)At approximately 1.30 pm on 25 November 2020, in accordance with the approved process, the Applicant changed her auxiliary code on the online system to record that she was undertaking L&D and was not available to take calls. For the L&D activity she chose to listen to a podcast on leadership using the loudspeaker function on her mobile telephone.(f)While listening to the podcast she left her home and walked along the footpath beside Heritage Road leading towards the Heritage Golf Club.(g)At around 2pm on 25 November 2020 she was found by passers-by slumped on the grassed area next to Heritage Road. (h)Ambulance Victoria attended the scene to provide medical assistance before taking the Applicant to Knox Private Hospital where the Applicant was diagnosed with multiple rib fractures and displaced fractures in her left wrist and left patella for which she subsequently underwent orthopaedic surgical intervention.[12] Exhibit A13.MATTER 2021/5885

Ratio Decidendi

Legal Principle Established

The term "injury" is defined in s 5A(1) to mean:(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.CONSIDERATION OF ISSUESThe Incident Without setting out the evidence in detail the Tribunal is satisfied that there are certain factual matters concerning the Incident giving rise to the Applicant’s claims in matters 2021/5885 and 2022/3397 which are not in dispute and which justify the following factual findings:(a)At all relevant times the Applicant was employed by Services Australia as a Services Liaison Officer. Her principal duties were to respond to customer telephone and email enquiries regarding human resources policies, employee entitlements and payroll matters.(b)The Applicant’s usual place of work was Service Australia’s People Advisory Centre (PAC) located in Box Hill but from July 2020 and at the time of the Incident she was directed to work from home as a result of restrictions imposed by the Victorian government in response to the COVID-19 pandemic.[12](c)Her home was in Chirnside Park, Victoria in a gated estate incorporating the Heritage Golf Club off Heritage Road.(d)On 25 November 2020 the Applicant’s work schedule provided for her to undertake a one hour Learning and Development (L&D) activity between 1.30 and 2.30 pm.(e)At approximately 1.30 pm on 25 November 2020, in accordance with the approved process, the Applicant changed her auxiliary code on the online system to record that she was undertaking L&D and was not available to take calls. For the L&D activity she chose to listen to a podcast on leadership using the loudspeaker function on her mobile telephone.(f)While listening to the podcast she left her home and walked along the footpath beside Heritage Road leading towards the Heritage Golf Club.(g)At around 2pm on 25 November 2020 she was found by passers-by slumped on the grassed area next to Heritage Road. (h)Ambulance Victoria attended the scene to provide medical assistance before taking the Applicant to Knox Private Hospital where the Applicant was diagnosed with multiple rib fractures and displaced fractures in her left wrist and left patella for which she subsequently underwent orthopaedic surgical intervention.[12] Exhibit A13.MATTER 2021/5885 The application for review[13] in this matter concerns the decision of the Respondent to deny the Applicant’s claim for workers’ compensation under s 14 of the SRC Act for injuries, namely “head injury, loss of consciousness, seven fractured ribs, fractured left leg patella, fractured left wrist, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste” arising out of the Incident.[13] See Application for Review at PT3 at p.35-40 and Section 37 Statement at PT4 at p.41.