Lalliard and Comcare (Compensation) [2019] AATA 5602 (24 December 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1179
Re:Lyndie Lalliard
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:24 December 2019
Place:Canberra
The Reviewable Decision is set aside and in substitution, the Tribunal finds that the Respondent is liable to pay compensation to the Applicant pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
The Tribunal awards the Applicant costs in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
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Senior Member Linda Kirk
WORKERS COMPENSATION – whether Applicant suffered an injury as defined in section 5A of the Safety, Rehabilitation and Compensation Act 1988 – whether claimed condition is an injury, a disease and specifically an ailment or an aggravation – whether the claimed condition was contributed to, to a significant degree, by the Applicant’s employment – whether the Respondent is liable to pay compensation for the claimed condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 – decision under review set aside and substituted – costs awarded to the Applicant
Administrative Appeals Tribunal Act 1975
Compensation (Commonwealth Government Employees) Act 1971 (Cth)Safety, Rehabilitation and Compensation Act 1988 s 4, 5A, 5B, 14
Australian Postal Corporation v Burch (1998) 156 ALR 483
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Charles R Davidson & Co v M’Robb [1918] AC 304
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Kahn (2007) 156 FCR 536
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
Hutchinson and Comcare [2018] AATA 4357
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
May and Military Rehabilitation and Compensation Commission [2011] AATA 886
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
MRCC v Roberts [2007] FCA 1
Prain v Comcare [2016] AATA 459
Prain v Comcare (2017) 256 FCR 65
Reardon and Comcare [2015] AATA 360
Re Pettiford v Comcare (2014) 139 ALD 411
Su v Comcare [2011] AATA 934Vo and Comcare [2005] AATA 773
REASONS FOR DECISION
Senior Member Linda Kirk
24 December 2019
Ms Lyndie Lalliard (‘the Applicant’) was born in 1971. She commenced permanent employment as a Police Officer with the Australian Federal Police (‘AFP’) in 2002.
On 21 September 2017, the Applicant submitted a claim for workers’ compensation for ‘Depression/anxiety’[1] (‘the claimed conditions’).
[1] Exhibit R2, T6, 34-40.
By determination dated 16 November 2017, Comcare (‘the Respondent’) denied the Applicant’s claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’).[2] While recognising that the Applicant had suffered an ailment, the delegate did not consider that the Applicant’s employment was causative of her condition. The delegate found that the Applicant’s condition developed as a result of reviewing…
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- Lalliard and Comcare (Compensation) [2019] AATA 5602
- Case
- [2019] AATA 5602
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CaseChat Overview and Summary
The Tribunal was required to determine several key issues. Firstly, it needed to ascertain whether the Applicant had suffered an "injury" as defined in section 5A of the SRC Act, specifically whether her claimed conditions were an "injury (other than a disease)" under section 5A(1)(b) or a "disease" under sections 5A(1)(a) and 5B(1). This involved considering whether the conditions were an "ailment" or "aggravation" as defined in section 4, whether her employment with the AFP contributed to these conditions as required by section 5B, and if such contribution was "significant" as defined by section 5B(3). Secondly, the Tribunal had to determine if Comcare was liable to pay compensation for the Applicant's injury pursuant to section 14 of the SRC Act.
The Tribunal's reasoning involved distinguishing between an "injury simpliciter" and a "disease" under the SRC Act. An injury simpliciter requires a causal or temporal connection with employment, whereas a disease requires significant contribution from employment. The Tribunal noted that these classifications are fact-specific and depend on precise evidence regarding the nature of the physiological change. While the Applicant's employment history and interactions with a superior were considered, the Tribunal ultimately found that even if a causal connection existed, the employment contribution to her condition was not significant. Instead, the Tribunal identified the Applicant's fragile state, domestic issues, and lack of career advancement as more significant contributing factors.
Ultimately, the Tribunal found that the Applicant had suffered an "injury" within the meaning of section 14 of the SRC Act and that the Respondent was liable to pay compensation. The Reviewable Decision was set aside, and the Tribunal substituted a finding of liability against Comcare, also awarding the Applicant costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Even if there is a causal connection between the workplace events and her injury there is not a significant contribution. The significant factors that contributed to her condition were the Applicant’s very fragile state, the problems with her home life and her lack of career advancement.CONSIDERATION AND REASONS The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal. (1)Did the Applicant suffer an ‘injury’ as defined in s 5A of the SRC Act, and specifically, are the claimed conditions:(a) an ‘injury (other than a disease)’ as defined in s 5A(1)(b) of the Act; or(b) a ‘disease’ as defined in s 5A(1)(a) and s 5B(1) of the Act The first issue for the Tribunal’s consideration is whether the claimed conditions for which the Applicant seeks compensation can be considered an ‘injury (other than a disease)’ or a ‘disease’ for the purposes of the SRC Act.Distinction between an ‘injury simpliciter’ and a ‘disease’ The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is important because, for an injury that is not a disease (often referred to as an ‘injury simpliciter’ – see Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (‘May’), French CJ, Kiefel, Nettle and Gordon JJ at [42]), the injury must arise out of, or in the course of, the employment (s 5A(1)(b) of the SRC Act). That is, ‘… the physical or mental injury has to have a causal or temporal connection with the employee’s employment’: May per French CJ, Kiefel, Nettle and Gordon JJ at [44]. An ‘injury simpliciter’ is contrasted with a ‘disease’, which must be contributed to, to a significant degree, by the employee’s employment (s 5B(1) of the SRC Act). The latter requires a stronger causal connection between the employment and the ailment: Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486 (‘Burch’); Prain v Comcare [2016] AATA 459 (‘Prain (AAT)’) at [7]-[8]. Whether a claimed condition is an injury simplicter or a disease must be determined on a case-by-case basis. As Gleeson CJ and Kirby J observed in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (‘Kennedy Cleaning’), ‘Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case’ at [22]. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to ‘… precise evidence … concerning the nature and incidents of the physiological change…’: Kennedy Cleaning per Gleeson CJ and Kirby J at [39].What is an ‘injury simplicter’? In May French CJ, Kiefel, Nettle and Gordon JJ observed that whether there is an ‘injury’ in the primary sense ‘will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ at [52]. Similarly, in Kennedy Cleaning, Gleeson CJ and Kirby J stated that ‘… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’…’ at [39]. In Burch, the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was ‘…a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change’ at 488.