Lalliard and Comcare (Compensation)

Case [2019] AATA 5602

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).

........................................................................

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 934

Vo and Comcare [2005] AATA 773

REASONS FOR DECISION

Senior Member Linda Kirk

24 December 2019

  1. 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.

  2. 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.

  3. 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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AGLC
Lalliard and Comcare (Compensation) [2019] AATA 5602
Case
[2019] AATA 5602
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the Applicant for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) for conditions claimed to have arisen from her employment with the Australian Federal Police (AFP). The dispute centred on whether the Applicant's claimed conditions constituted an "injury" as defined by the SRC Act, and if so, whether the Respondent, Comcare, was liable to pay compensation. The decision was made by Linda Kirk SM in the Administrative Appeals Tribunal.

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

The issues for determination are as follows:(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, specifically are the conditions:(i)an ‘ailment’ or ‘aggravation’ as defined by s 4 of the Act?(ii)contributed to by the Applicant’s ‘employment’ with the AFP as required by s 5B of the Act? and(iii)was this employment contribution ‘significant’ as defined by s 5B(3) of the Act?(2)Is the Respondent liable to pay compensation for the Applicant’s ‘injury’ pursuant to section 14 of the SRC Act.EVIDENCE BEFORE THE TRIBUNALApplicant’s employment with the AFP On 21 January 2002 the Applicant commenced a temporary contract position with the AFP in the security vetting section in Civic.[6] In approximately April 2002 she obtained a permanent position with the AFP.[7] She commenced recruit training in August 2002 and completed this training in March 2003.[8] She was first posted to the City Police Station as a general duties and operational officer.[9] In late 2005 she was posted to the Woden Police Station. She was in a general duties operational position and enjoyed her work.[10] Her work included ‘walking the beat’ and she was equipped with a baton, gun, handcuffs and capsicum spray.[6] Exhibit A4, Applicant’s statement, [16].[7] Exhibit A4, Applicant’s statement, [16].[8] Exhibit A4, Applicant’s statement, [17]-[18].[9] Exhibit A4, Applicant’s statement, [18].[10] Exhibit A4, Applicant’s statement, [27]-[28].2005 PRS investigation and Comcare claim In November 2004 the Applicant was involved in an altercation with a taxi driver after an evening work gathering. She showed the driver her police badge to vouch for her honesty. When she tried to get out the car her left foot was slammed in the door causing it to fracture. This event gave rise to a PRS investigation and the allegation of the Applicant showing her badge was sustained.[11][11] Exhibit A4, Applicant’s statement, [22]-[24]. On 24 November 2004, the Applicant’s general practitioner, Dr Watson, noted she was unable to sleep and was suffering from post-traumatic stress disorder as a result of the incident.[12] On 13 December 2004, Dr Watson diagnosed the Applicant with adjustment disorder with a depressed mood. She was certified unfit for work until late January 2008.[13][12] Exhibit R2, T15, 123.[13] Exhibit R2, T15, 124. On 6 June 2005, the Respondent accepted liability to pay compensation to the Applicant pursuant to section 14 of the SRC Act in respect of ‘Adjustment Reaction with Depressive Reaction’.[14][14] Exhibit A8, Letter from the Respondent to the Applicant dated 6 June 2005; Exhibit A4, Applicant’s statement, [25].Interactions with Sergeant Jamieson The Applicant first met Sergeant Francis Jamieson (‘Jamieson’), the Officer in Charge (OIC) of the Woden station, in approximately September 2006.[15] From her first encounter with Jamieson, the Applicant felt that he seemed to ‘have it in’[16] for her and from that point on ‘made life difficult’ for her at the station.[17][15] Exhibit A4, Applicant’s statement, [30].[16] Exhibit A4, Applicant’s statement, [30].[17] Exhibit A4, Applicant’s statement, [31].

Decision

Reasons for decision

The Tribunal finds, for the reasons outlined above, that the Applicant suffered an ‘injury’ within the meaning of s 14 of the SRC Act. The Respondent is therefore liable to pay compensation to the Applicant for the injury.DECISION 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).

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.