Leon Thompson and Comcare

Link copied
Case Copied 51 min read

[2014] AATA 486

Division General Administrative Division

File Numbers

2013/6223

2013/6224

Re

Leon Thompson

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President S D Hotop
Date 17 July 2014
Place Perth

The Tribunal decides as follows:

Application 2013/6223

· the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation to the applicant, in accordance with that Act, in respect of “Adjustment Disorder with Depressed and Anxious Mood” suffered by him on 3 September 2012;


Application 2013/6224

· the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable to pay compensation to the applicant, pursuant to s 19 of the SRC Act, for incapacity for work for the period from 27 June 2013 to 31 July 2013.

..................[sgd]...................................

S D Hotop

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – applicant suffered compensable back injury – applicant subsequently suffered mental ailment – mental ailment contributed to, to significant degree, by compensable back injury – mental ailment a disease – mental ailment a compensable injury – applicant incapacitated for work as result of compensable back injury – decisions under review set aside

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s4(9), s 5A, s 5B, s 7(4), s 14(1) and s 19(1)

CASES

Comcare v Mooi (1996) 69 FCR 439

Ilsley v Wattyl Australia Pty Ltd (1997)  75 FCR 1

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

REASONS FOR DECISION

Deputy President S D Hotop

17 July 2014

Introduction

  1. Leon Thompson (“the applicant”) has applied to the Tribunal for review of two “reviewable decisions” made by Comcare (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), namely:

    ·a reviewable decision, dated 11 October 2013, whereby the respondent affirmed a determination, dated 5 August 2013, that it was not liable under s 14 of the SRC Act to pay compensation to the applicant in respect of “adjustment disorder with depressed and anxious mood” (Application 2013/6223);

    ·a reviewable decision, dated 11 October 2013, whereby the respondent affirmed a determination, dated 27 August 2013, that it was not liable to pay compensation to the applicant for incapacity for work, pursuant to s 19 of the SRC Act, for the period from 27 June 2013 to 31 July 2013 (Application 2013/6224).

    The Evidence

  2. The evidence before the Tribunal comprised the “T Documents” (T1–T75, pp 1–360) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:

    ·Exhibits A1–A4 tendered by the applicant;

    ·Exhibits R1–R4 tendered by the respondent; and

    ·the oral evidence of the applicant and of Dr Stephen Proud.

    The Factual and Medical Background

  3. The following factual and medical background appears from the T Documents and Exhibits and is not in dispute.

  4. The applicant, who was…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Leon Thompson and Comcare and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2014] AATA 486
Decision Date

CaseChat Overview and Summary

In this case, Leon Thompson, an employee of the Department of Agriculture, Fisheries and Forestry, sought review of two decisions made by Comcare. The first decision was that Comcare was not liable to pay compensation for "adjustment disorder with depressed and anxious mood", and the second decision was that Comcare was not liable to pay compensation for incapacity for work for a specified period. The case was heard by the Administrative Appeals Tribunal (AAT).

The legal issues before the Tribunal involved determining whether Comcare was liable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay compensation for the psychological condition and for the period of incapacity claimed by Mr Thompson. This required examining the evidence provided by both parties, including medical certificates, reports, and oral testimony, to ascertain the nature and extent of Mr Thompson's injuries and their impact on his ability to work.

The Tribunal found that the evidence supported Mr Thompson's claim that he suffered from a compensable injury, which included a soft tissue injury to his lower back and a psychological condition resulting from the injury and the dispute with Comcare. The Tribunal concluded that Comcare's decision not to compensate for the psychological condition was incorrect as it failed to adequately consider the evidence of causation and the impact of the compensable condition on Mr Thompson's mental health. Similarly, the Tribunal found that Comcare's refusal to compensate for the period of incapacity was also incorrect, as the evidence indicated that Mr Thompson was unfit to work due to the compensable condition, not merely stress related to administrative actions.

The Tribunal set aside Comcare's decisions and substituted them with orders that Comcare was liable to pay compensation for both the psychological condition and the period of incapacity claimed by Mr Thompson. This outcome was based on a comprehensive review of the medical evidence and an assessment of the impact of the compensable condition on Mr Thompson's ability to work.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The evidence before the Tribunal comprised the “T Documents” (T1–T75, pp 1–360) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:·Exhibits A1–A4 tendered by the applicant;·Exhibits R1–R4 tendered by the respondent; and·the oral evidence of the applicant and of Dr Stephen Proud.The Factual and Medical Background The following factual and medical background appears from the T Documents and Exhibits and is not in dispute. The applicant, who was born in July 1967, is, and at all material times has been, employed by the Department of Agriculture, Fisheries and Forestry (“the Department”) as a Biosecurity Officer/Quarantine Officer (APS Level 4). On 7 September 2011 Dr Devasish Roy issued a Workers’ Compensation PROGRESS Medical Certificate in respect of a condition described as “tender L4/S1, acceptable movements” suffered by the applicant on 17 February 2011, certifying that the applicant was fit for restricted duties from 7 September 2011 to 21 September 2011 and recommending six sessions of physiotherapy. (T75, p 321) On 9 September 2011 Dr Francis Akinyami issued a Workers’ Compensation FIRST [sic] Medical Certificate in respect of “back injury: muscular”, noting the applicant’s description of how that injury occurred as “repetitive bending at work”. (T5) Further workers’ compensation progress medical certificates in respect of the applicant’s lower back condition were issued on 21 September 2011, 19 October 2011, 23 January 2012, 28 February 2012, 13 March 2012, 24 April 2012, 15 May 2012 and 23 May 2012 (Exhibit A2; T75, pp 322–325) Dr John Pearce, Consultant Occupational Physician, examined the applicant, at the request of the Department, on 16 February 2012 and provided a report, dated 20 February 2012, to the Department which states (inter alia):“ …REASON FOR REFERRALThe reason for referral is low back [sic] which I would classify as mild in severity and which remains under-treated (see later in this report).Mr Thompson’s back injury dates back to February 2011. At this time while involved in prolonged bending conducting bulk fertiliser inspections he developed an aching in his lower back. He continued working, the pain became worse.He did nothing for many months as he was worried what the back injury might do to his employment, eventually attending a General Practitioner. He said he was now under Dr Roy at Gosnells. He has previously been under the care of the Carlisle Medical Group.Mr Thompson was told he had a soft tissue-type injury which was treated with physiotherapy and an exercise program. He has taken anti-inflammatory and analgesic medication intermittently but not in a structured manner.To my surprise he is currently on no medication.He has not had imaging studies, he has not had specialist referral.He has recently been transferred to the Regional Office where he is on light duties performing project work.…OPINIONMr Thompson is a 44 year-old man who is suffering from a soft tissue-type injury of his lower back which I would classify as mild in severity.He remains under-treated. I have referred him back to his General Practitioner for more structured conservative treatment including the judicious use of anti-inflammatory and analgesic medication in conjunction with physiotherapy and an exercise program.Given compliance with this treatment I anticipate a full recovery and return to full and normal duties within the next 6-8 weeks.In the interim period he would best remain on his current light duties.…” (T6)

Evidence

Evidence Before The Court

Leon Thompson (“the applicant”) has applied to the Tribunal for review of two “reviewable decisions” made by Comcare (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), namely:·a reviewable decision, dated 11 October 2013, whereby the respondent affirmed a determination, dated 5 August 2013, that it was not liable under s 14 of the SRC Act to pay compensation to the applicant in respect of “adjustment disorder with depressed and anxious mood” (Application 2013/6223);·a reviewable decision, dated 11 October 2013, whereby the respondent affirmed a determination, dated 27 August 2013, that it was not liable to pay compensation to the applicant for incapacity for work, pursuant to s 19 of the SRC Act, for the period from 27 June 2013 to 31 July 2013 (Application 2013/6224).The Evidence The evidence before the Tribunal comprised the “T Documents” (T1–T75, pp 1–360) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:·Exhibits A1–A4 tendered by the applicant;·Exhibits R1–R4 tendered by the respondent; and·the oral evidence of the applicant and of Dr Stephen Proud.The Factual and Medical Background The following factual and medical background appears from the T Documents and Exhibits and is not in dispute. The applicant, who was born in July 1967, is, and at all material times has been, employed by the Department of Agriculture, Fisheries and Forestry (“the Department”) as a Biosecurity Officer/Quarantine Officer (APS Level 4). On 7 September 2011 Dr Devasish Roy issued a Workers’ Compensation PROGRESS Medical Certificate in respect of a condition described as “tender L4/S1, acceptable movements” suffered by the applicant on 17 February 2011, certifying that the applicant was fit for restricted duties from 7 September 2011 to 21 September 2011 and recommending six sessions of physiotherapy. (T75, p 321) On 9 September 2011 Dr Francis Akinyami issued a Workers’ Compensation FIRST [sic] Medical Certificate in respect of “back injury: muscular”, noting the applicant’s description of how that injury occurred as “repetitive bending at work”. (T5) Further workers’ compensation progress medical certificates in respect of the applicant’s lower back condition were issued on 21 September 2011, 19 October 2011, 23 January 2012, 28 February 2012, 13 March 2012, 24 April 2012, 15 May 2012 and 23 May 2012 (Exhibit A2; T75, pp 322–325) Dr John Pearce, Consultant Occupational Physician, examined the applicant, at the request of the Department, on 16 February 2012 and provided a report, dated 20 February 2012, to the Department which states (inter alia):“ …REASON FOR REFERRALThe reason for referral is low back [sic] which I would classify as mild in severity and which remains under-treated (see later in this report).Mr Thompson’s back injury dates back to February 2011. At this time while involved in prolonged bending conducting bulk fertiliser inspections he developed an aching in his lower back. He continued working, the pain became worse.He did nothing for many months as he was worried what the back injury might do to his employment, eventually attending a General Practitioner. He said he was now under Dr Roy at Gosnells. He has previously been under the care of the Carlisle Medical Group.Mr Thompson was told he had a soft tissue-type injury which was treated with physiotherapy and an exercise program. He has taken anti-inflammatory and analgesic medication intermittently but not in a structured manner.To my surprise he is currently on no medication.He has not had imaging studies, he has not had specialist referral.He has recently been transferred to the Regional Office where he is on light duties performing project work.…OPINIONMr Thompson is a 44 year-old man who is suffering from a soft tissue-type injury of his lower back which I would classify as mild in severity.He remains under-treated. I have referred him back to his General Practitioner for more structured conservative treatment including the judicious use of anti-inflammatory and analgesic medication in conjunction with physiotherapy and an exercise program.Given compliance with this treatment I anticipate a full recovery and return to full and normal duties within the next 6-8 weeks.In the interim period he would best remain on his current light duties.…” (T6)

Decision

Reasons for decision

Accordingly, the Tribunal determines that the applicant was “incapacitated for work as a result of an injury”, within the meaning of s 19(1) of the SRC Act, for the period from 27 June 2013 to 31 July 2013, and that the respondent is liable to pay compensation to him, pursuant to s 19 of the SRC Act, for incapacity for work for that period.Decision For the above reasons the Tribunal decides as follows:Application 2013/6223· the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable under s 14(1) of the SRC Act to pay compensation to the applicant, in accordance with that Act, in respect of “Adjustment Disorder with Depressed and Anxious Mood” suffered by him on 3 September 2012;Application 2013/6224· the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable to pay compensation to the applicant, pursuant to s 19 of the SRC Act, for incapacity for work for the period from 27 June 2013 to 31 July 2013.

Ratio Decidendi

Legal Principle Established

By letter dated 5 August 2013 a delegate of the respondent notified the applicant as follows:“ Consideration of liability for a Secondary conditionI refer to your diagnosed conditions of Anxiety and Depression, and have given consideration as to whether these conditions should be accepted as secondary to your claim for ‘aggravation of lumbar sprain’.I note your previous General Practitioner, Dr Shetty, diagnosed you as suffering from the conditions of Anxiety and Depression, however I have considered your condition as Adjustment Disorder with Depressed and Anxious Mood, as diagnosed by Dr Proud (Consultant Psychiatrist).…DeterminationAfter considering the information provided in relation to the development of your Adjustment Disorder with Depressed and Anxious Mood, I have determined that there is no liability under section 14 of the Act for these conditions [sic] in relation to your claim for ‘aggravation of lumbar sprain’.Dr Proud opines that your psychological conditions appear to be a combination of your ongoing back pain as well as your dispute with Comcare. However, Dr Shetty notes you feel these conditions were largely due to the actions of Department of Agriculture, Forestry and Fisheries (DAFF) in handling your case. His earlier information on file suggests he does however mean Comcare’s actions.…” (T50, p 232) By letter dated 27 August 2013 a delegate of the respondent notified the applicant as follows:“ I refer to your claim for incapacity benefits for the period 27 June to 31 July 2013.As you are aware, Comcare did not have supporting medical evidence to accept liability for a secondary condition, namely ‘Adjustment Disorder with Depressed and Anxious Mood’. This was confirmed in a letter to you dated 5 August 2013, which enclosed a statement of reasons.The period of incapacity benefits claimed for the above dates is supported by Dr Papulani’s [sic] certificate dated 28 June 2013 and Dr Paterson’s certificate dated 11 July 2013. Both certificates note the main reason you were unfit to work for this period as stress and work-related anxiety.These issues were discussed in Comcare’s determination to you dated 5August 2013, and relate to stress and anxiety around administrative actions rather than your compensable condition. As such this condition and related time off work were found not to be compensable.I have assessed the evidence on your claim file and under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), determined that compensation is not payable for incapacity benefits for the period 27 June and [sic] 31 July 2013. …” (T60, p 273) By letter dated 11 October 2013 a Review Officer of the respondent notified the applicant that she had “decided that the determination dated 5 August 2013 should be affirmed”. (T73, p 312). By letter dated 11 October 2013 a Review Officer of the respondent notified the applicant that she had “decided that the determination dated 27 August 2013 was correct” and that he was “therefore not entitled to incapacity benefits under section 19 of the SRC Act for the period of 27 June 2013 to 31 July 2013”. (T74, p 316)