Messer and Australian Postal Corporation (Compensation) - [2022] AATA 1322

Messer and Australian Postal Corporation (Compensation) [2022] AATA 1322 (23 May 2022)
Division:GENERAL DIVISION
File Number: 2020/3750
Re:Lydia Messer
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:23 May 2022
Place:Brisbane

The decision under review is affirmed.
...................[SGD].....................................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION — Chronic Fatigue Syndrome — Applicant diagnosed during adolescence — whether Applicant wilfully made false representation on her compensation claim form — whether Applicant suffered an injury or aggravation of a pre-existing ailment — whether employment contributed to, to a significant degree, the onset or aggravation of the ailment — whether Respondent liable to pay compensation — decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
CASES
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Bailey v Broadsword Marine Contractors Pty Ltd (2017) 257 FCR 549
Bird v Commonwealth (1998) 165 CLR 1
Campion and Comcare [2021] AATA 4310
Canute v Comcare (2006) 226 CLR 535
Cavanagh and Comcare [2021] AATA 499
Comcare v Porter (1996) 70 FCR 139
Comcare v Power (2015) 238 FCR 187
Comcare v Sahu-Khan (2007) 156 FCR 536
Commonwealth v Beattie (1981) 53 FLR 191
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176; 9 AAR 206
Cosgrove-Kaye and Comcare [2019] AATA 1238
De Tarle and Comcare [2021] AATA 94
Federal Broom Co. Pty. Ltd. v Semlitch (1964) 110 CLR 626
Hopkins and Comcare [2016] AATA 742
Lees v Comcare [1999] FCA 753
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Millar and Comcare [2019] AATA 4973
National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382
Newham and Australian Telecommunications Company (1990) 22 ALD 783
Owners of the ship ‘Sin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404
Repatriation Commission v Bendy (1989) 18 ALD 144; 10 AAR 323
Tippett v Australian Postal Corporation [1998] FCA 335; (1998) 27 AAR 40
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Whitlock and Comcare [2020] AATA 1353
Williamson and Comcare [2019] 4774
Wuth and Comcare [2020] AATA 3625
Wuth v Comcare [2022] FCAFC 42
REASONS FOR DECISION
Deputy President J Sosso
23 May 2022
INTRODUCTION

Ms Lydia Messer (the Applicant) seeks a review of a decision of the Australian Postal Corporation (the Respondent) dated 18 May 2020 that affirmed a determination of 21 April 2020 denying liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for the claimed condition of Chronic Fatigue Syndrome (CFS) – Exhibit 1 T63 pp. 392 – 294, T75 pp. 447 – 450.
The Applicant is now aged 39 and is the mother of four children. She grew up in New Zealand and, upon leaving school, obtained a Certificate III in Logistics and Warehousing, a Multi-Combination driving licence, a Roller’s Certificate, a Dangerous Goods Carrying Certificate and a Forklift licence – Exhibit 1 T35 p. 153, Exhibit 4 p. 23.
The Applicant emigrated to…

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.

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Details

Case: [2022] AATA 1322
Decision Date: 23 May 2022

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Ms. Messer, against a decision by the Australian Postal Corporation (the Respondent) to deny her compensation claim. The Applicant had been diagnosed with Chronic Fatigue Syndrome (CFS) and alleged that her employment had contributed to the onset or aggravation of this condition. The Respondent had rejected the claim, asserting that the Applicant had wilfully made a false representation on her compensation claim form and that her employment had not contributed to her condition to a significant degree. The case was heard by Deputy J Sosso P.

The primary legal issues before the Tribunal were whether the Applicant had wilfully made a false representation on her compensation claim form, and whether she had suffered an injury or aggravation of a pre-existing ailment, and if so, whether her employment had contributed to this condition to a significant degree, thereby making her eligible for compensation under the relevant legislation. The Tribunal was required to assess the evidence presented, including medical reports and the Applicant's own testimony, to determine these questions.

The Tribunal considered the Applicant's negative response on the claim form to the question of whether she had a similar injury or illness to CFS, in light of evidence that she had been diagnosed with CFS as a teenager. The Applicant conceded she did not consider her past diagnosis relevant as she was asymptomatic at the time of lodging the claim. However, the Tribunal noted several instances where the Applicant had referred to her past diagnosis of CFS, including in communications with medical centres and in her own submissions to the Tribunal. These references indicated a clear recollection of the diagnosis and past treatments. The Tribunal was not satisfied, on the balance of probabilities, that the aggravation of the Applicant's ailment was contributed to, to a significant degree, by her employment.

Consequently, the decision under review, which affirmed the Respondent's rejection of the compensation claim, was affirmed by the Tribunal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In reaching this conclusion, the Reconsideration Delegate referred to both reports of Dr Rickard, as well the medical reports of Dr Deed. The Reconsideration Delegate concluded as follows – Exhibit 1 T75 p. 449:“Taking this [i.e. the supplementary report of Dr Rickard], as well as Dr Rickard’s initial report into consideration, I am satisfied that there is sufficient evidence to support that you have not suffered a condition arising out of, or in the course of, your employment. I am further satisfied that your employment has not contributed to, to a significant degree, to an aggravation of a pre-existing, or underlying condition, to make you eligible for compensation under the provisions of the SRC Act.”(emphasis in the original)POST REVIEWABLE DECISION MEDICAL EVIDENCEIntroduction The Tribunal has been provided with a number of reports from Dr Deed and Dr Phillip Vecchio, as well a brief Treating Psychologist’s Report dated 25 March 2021 from Dr Ben McDarmont – Exhibit 9 pp. 1 – 3. Dr McDarmont, in his brief report, diagnoses the Applicant with CFS and notes that she suffers from persistent significant fatigue, difficulty with concentration and activity limited by pain – Exhibit 12 ST4 pp. 12 – 14. Further, Dr McDarmont opined that, given the Applicant’ symptoms, she would be unlikely to significantly improve in the next two years (i.e. 2021 – 2022) – Exhibit 12 ST4 p. 14. Reference is not made to Dr Deed’s very brief supplementary report of 1 September 2021 which deals, in a brief manner, with academic research on stressful incidents as a trigger to the onset of illness – Exhibit 11 pp. 1 – 2. This report is not of particular assistance to the Tribunal in the resolution of the matters in contention. The remaining medical reports are dealt with below.Dr Deed – report 10 June 2020 Dr Deed, in a report dated 10 June 2020, answered a series of questions about the Applicant’s medical condition and her prospects of returning to work – Exhibit 1 T79 pp. 459 – 461. First, Dr Deed outlined the background to the Applicant’s medical condition – Exhibit 1 T79 pp. 459 – 460:“Lydia attended initially on the 15th April 2020 having been unwell for some months before having ‘crashed’ in November 2019.She had been working extremely physically hard for more than 12 hours per day in her work as a truck delivery driver prior to the onset of her symptoms requiring bending lifting and carrying of weights up to 50 kilograms. Previous levels of sport involvement including table tennis, playing tennis, swimming and cricket were reduced due to their significant escalation of fatigue at this time.Her symptoms were concentrated on severe fatigue, with waking up tired having no relief or a better time during the day. Even sweeping the house or vacuuming was associated with post exertional malaise involving muscle aches and pains. She felt sleepy during the day there was a sense of throbbing in her muscles. She describes joint pains and generalised hyperflexibility. She also stated she developed dizziness with postural change. She stated she has not been able to work since November 2019.Relevant past history: I note reports mentioning previous family law cases but these had finalised more than five years prior to any presentation as currently documented. Therefore, I do not think it is relevant to her current presentation. There is a non-significant history of her husband having a significant a [sic] shoulder reconstruction but this doesn’t appear to be relevant to Mrs Messer’s current presentation.When examination was completed and noted that she has had hyper-mobility of joints and this is been associated with chronic fatigue syndrome with escalation and aggravation of symptoms. When utilising several fatigue scales: Fatigue severity scale score of seven and brief fatigue inventory as attached, I am firm in my application of a diagnosis of ME/CFS.”

Decision

Reasons for decision

It follows then, that the Tribunal is not satisfied, on the balance, that the aggravation of the Applicant’s ailment was contributed to, to a significant degree, by her employment.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Respondent called Dr Vecchio to give evidence. The Applicant chose not to cross-examine Dr Vecchio.CONSIDERATIONIntroduction As noted above, the only issues before the Tribunal relate to the applicability of s 7(7) and whether the Applicant’s CFS, or aggravation thereof, was contributed to, to a significant degree, by her employment. Both of these issues are dealt with below.Wilful and false representation – s 7(7) The wilful and false representation claimed by the Respondent is the Applicant’s negative answer in the Claim for Rehabilitation and Compensation form to the Question whether she ever had a similar injury/illness to the claimed disease of CFS – ROCS p. 5 para 16. The Respondent points out that the Applicant was, in fact, diagnosed with CFS in July 1995 when she was only 13 years of age, and it worsened throughout 1995 into 1996, and lasted for approximately three years – ROCS p. 5 para 17. When giving evidence, the Applicant confirmed this was the case – Transcript (Tr.) 27.1.2022 pp. 7 – 8:“...I was diagnosed with chronic fatigue syndrome by a paediatrician, along with a well-known medical practitioner, Dr Vallings, who is part of the committed [sic] that runs the internal medical criteria in diagnosing 50 thousand patients around the world with this illness. I was an extremely fit and athletic and very energetic person. I represented [m]y country in table tennis, along with playing almost every other sport. I represented them in some form, whether it be school or club, until I was forced to be bedbound. I was in that state for three years. Through trial and error, I begin my life again…” The Respondent submitted that, at the time the Applicant completed the claim form, she knew that she had previously suffered with CFS and, as such, her answer was wilfully false – ROCS pp. 5 – 7 para 18. In support of this submission, the Respondent drew the Tribunal’s attention to the following matters:(a)the Applicant conceded in cross-examination that she did not think it was relevant to her claim because she was asymptomatic;(b)the Applicant reported to her treating GP, Dr Luu, on 14 June 2014 that she had a history of CFS;(c)on 9 January 2020, the Applicant sent an email to Howick Health and Medical Centre which she was referred to as a patient 20 years ago when she was “diagnosed with ME/CFS”. The Applicant stated: “…I remember b12 injections helped but was given them 1 a week for 6 weeks they started working then they would stop so wouldn’t improve”. This, it was submitted, “demonstrates that the Applicant not only recalled being diagnosed with CFS as a teenager but the treatment that was administered to treat it”, and this occurred less than a month after completing the compensation claim form;(d)a consultation note of 13 January 2020 refers to the Applicant’s symptoms being “better after Vit B12 injection”, which was the treatment she received in 1995 for CFS;(e)on 16 March 2020, the Applicant participated in a telehealth consultation. The clinical note of the consultation states: “Lydia first became unwell in the 90s and was diagnosed by Dr Rosamund Vallings with CFS. Lydia made a full recovery and was symptom free for 25 years…”;(f)Dr Rickard, in his report of 9 April 2020, noted that the Applicant “eluded [sic] to a past medical history of chronic fatigue syndrome diagnosed in 1995 which lasted for three years, settling after her first pregnancy”;(g)the Applicant reported to Dr Vecchio that “the condition has been present for more than 20 years although she has been largely able to cope with the symptoms post adolescence.”; and(h)in the Applicant’s submission to the Tribunal labelled “Lydia Messer timeline 1995” she stated:“Diagnosed with Chronic Fatigue Syndrome by Dr Mike Watt in July 1995.I pushed myself hard for another year to be able to represent my country in table tennis.Spent next 3 yrs ‘crashed’. Trying every option including B12 injections which helped a bit with energy but not much.Dr Ross Vallings was my treating medical practitioner.”