Milevska and Comcare (Compensation)

Case [2018] AATA 2141

Milevska and Comcare (Compensation) [2018] AATA 2141 (6 July 2018)

Division:GENERAL DIVISION

File Numbers:         2017/0853

2017/2363

Re:Tranda Milevska

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans

Date:6 July 2018

Place:Perth

  1. The Reviewable Physical Injury Decision dated 8 February 2017 (2017/0853) is affirmed.

  2. The Tribunal sets aside the Reviewable Psychological Injury Decision (2017/2363) dated 11 April 2017, and in substitution finds that the Applicant continued to suffer from the Psychological Injury, and that liability should be accepted for:

    (a)reasonable medical expenses under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) from 23 November 2016; and

    (b)incapacity payments under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) from 12 February 2016.

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

    Senior Member Dr M Evans

    CATCHWORDS

    WORKERS’ COMPENSATION – Commonwealth Employee – physical injury – aggravation or new injury – psychological injury – adjustment disorder – post-traumatic stress disorder – whether a psychological injury is a disease or an injury other than a disease – soft tissue injury to neck and upper spine – Applicant trapped in a lift (elevator) in workplace – entitlement to compensation – entitlement to medical treatment and/or incapacity payments – whether Tribunal can alter description of injury or disease in s 14 determination – whether employment still a contributing factor to the Applicant’s injury – physical injury decision affirmed – psychological injury decision set aside

    LEGISLATION

    Administrative Appeals Tribunal Act 1975 (Cth), s 25(1), s 29(2), 33(1)(c)

    Compensation (Commonwealth Government Employees) Act 1971 (Cth)

    Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

    Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, 5A(1), s 5B(1), s 5B(2), s 5B(3), s 14(1), s 16(1), s 19(1), s 19(2), s 38(4), s 60(1), s 62, s 62(4), s 62(5), s 64(1), s 65(4)

    CASES

    Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173

    Men Soon Chu Yu Chee and Comcare [2018] AATA 1241

    Comcare v Reardon [2015] FCA 1166

    Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502

    May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397

    Milevska and Comcare [2017] AATA 1177

    Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369

    Perich and Secretary, Department of Social Services [2018] AATA 963

    Pollock v Wellington (1996) 15 WAR 1

    Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370

    Prain v Comcare [2016] AATA 459

    Prain v Comcare [2017] FCAFC 143

    Re von Stieglitz and Comcare [2010] AATA 263

    Reardon and Comcare [2015] AATA 360

    Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

    SECONDARY MATERIALS

    American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5th ed, American Psychiatric Association DSM-5 Task Force, 2013)

    Freckelton I and Selby H, Expert Evidence: Law Practice, Procedure and Advocacy (5th ed Thomson Reuters Lawbook Co, 2013)

    REASONS FOR DECISION

    Senior Member Dr M Evans

    6 July 2018

    THE APPLICATIONS

  3. On 21 January 2016, the Applicant, who was employed as a Compliance Officer by the Department…

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AGLC
Milevska and Comcare (Compensation) [2018] AATA 2141
Case
[2018] AATA 2141
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms Milevska, against decisions made by Comcare regarding her entitlement to compensation for injuries sustained in a workplace incident. The applicant was trapped in a lift at her workplace, an event which she described as causing significant panic and fear. She subsequently experienced physical pain in her neck and upper spine, as well as psychological distress including adjustment disorder and post-traumatic stress disorder. The dispute centred on whether Comcare should continue to accept liability for her physical injuries and whether it should accept liability for her psychological condition, including incapacity payments and medical treatment.

The Administrative Appeals Tribunal (AAT) was required to determine two primary issues. Firstly, whether the applicant had recovered from her physical injuries as at 18 January 2017 and if liability for these injuries should continue to be accepted. Secondly, whether the applicant's psychological condition continued to relate to the lift incident and if liability should be accepted for incapacity payments from 27 April 2017 and for medical treatment from 23 November 2016. The Tribunal also considered its jurisdiction to review decisions made under section 62 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), noting that the applicant had lodged her applications within the prescribed timeframes.

The Tribunal affirmed the decision regarding the applicant's physical injuries, finding that liability should continue to be accepted. However, it set aside the decision concerning the psychological injury. The Tribunal reasoned that while the physical injury was a direct consequence of the incident, the psychological injury, specifically adjustment disorder and post-traumatic stress disorder, was not sufficiently established as arising from the employment incident itself. The Tribunal applied principles relating to the distinction between a disease and an injury other than a disease, and the requirement for employment to be a contributing factor to the injury.

The Tribunal ordered that the Reviewable Physical Injury Decision be affirmed, meaning Comcare's acceptance of liability for the physical injuries would continue. Conversely, the Reviewable Psychological Injury Decision was set aside, and the matter remitted for reconsideration regarding the psychological condition.

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

The extent of what happened in the lift warrants some discussion by the Tribunal because it is relevant to the extent and duration of the Applicant’s injuries (both physical and psychological) and the Tribunal’s assessment of the medical evidence given by the expert medical witnesses. Evidence of the Applicant in her witness statement The Applicant’s witness statement (Exhibit A1) is dated 20 July 2016, but in her evidence to the Tribunal, the Applicant confirmed that “2016” should be corrected to “2017”. The Applicant gave the following evidence about the lift incident in her witness statement (Exhibit A1): 24. I got in the lift on the third floor and I needed to go to the basement because I had finished for the day and was going home.25. I went in to the lift by myself and I pressed the basement button to exit the building as I was on my way home.26. The lift just fell, and I don’t know how far I fell. Then it jolted to a stop.27. I grabbed hold of the railing in the lift with my right hand (I am right hand dominant).28. I held tight to the railing to avoid being thrown around in the lift.29. The lift jumped up and down a bit before settling.30. I was able to get hold of a technician in Sydney who told me to give him my mobile number.31. He rang me back and told me that it would be about an hour before I was rescued. In fact, it was more than an hour and during that time I was in a state of panic feeling trapped and confined. I was afraid the lift might fall again.32. I was crying and hysterical by the time they got me out, even though [the Team Leader] had been calling to me trying to keep me talking. I could also hear another voice that sounded below me, but I couldn’t hear what was being said. 33. When the lift doors opened, my usual team leader […] (she was acting assistant manager at the time), and the assistant manager […] (who was then acting manager) said that the lift people had a lot to answer for because they were supposed to be there within half an hour of a problem. 34.…[The]…, acting team leader, and […], the gentleman who handles the IT were also there.35. No one asked me if I was okay, or offered assistance.36. I got put into a room by myself, and the team leader […] offered me water.37. I was not seen by anyone with first aid experience, and I could feel that I was going into shock.38. I was upset and sore and stressed, and I could not face going into the lift to go downstairs.39. [My Team Leader] held my handbag and we walked down the four flights to the basement on the stairs.40. [My Team Leader] and I walked across the driveway that divided the work building and the carpark building, and up four flights of stairs to where my car was parked.41. I don’t remember the drive home, and I don’t remember the stairs. I wasn’t conscious of any physical symptoms at first.42. I had a poor night’s sleep and had a nightmare about the life (sic).43. The next day, the pain in my back, neck and right shoulder was very severe and that is why I didn’t go into work. I saw Dr Wong, who certified me unfit.42A. At the same time, I was teary and anxious, I had a phobia of lifts.

Decision

Reasons for decision

The Applicant’s solicitors requested a reconsideration of the determination regarding the psychological injury in a letter dated 10 March 2017 (Exhibit R2, T24, page 230). However, on 11 April 2017, a delegate of the Respondent affirmed the determination of 14 February 2017 under s 62(5) of the SRC Act (Exhibit R2, T30, page 253) (Reviewable Psychological Injury Decision). On 21 April 2017 the Applicant lodged an application with the Tribunal for a review of the Reviewable Psychological Injury Decision (2017/2363; Exhibit R2, T1). JURISDICTION The jurisdiction of the Tribunal is established by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which states:(1) An enactment may provide that applications may be made to the Tribunal:(a) for review of decisions made in the exercise of powers conferred by that enactment; or(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment. In summary, s 25(1) of the AAT Act states that the jurisdiction of the Tribunal is given to it by other “enactments”, which grant it jurisdiction to review certain decisions made under those enactments. In this case, the relevant “enactment” is s 64(1) of the SRC Act which provides that: (1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:(a) the claimant; or(b) if the decision affects the Commonwealth—the Commonwealth; or(c) if the decision affects a Commonwealth authority—the Commonwealth authority; or(d) if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation. A “reviewable decision” is defined in s 60(1) of the SRC Act as, “a decision made under subsection 38(4) or section 62”. Section 62 of the SRC Act provides that:62. Reconsideration of determinations(1)A determining authority may, on its own motion:(a)reconsider a determination made by it; or(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.(2)A request to a determining authority to reconsider a determination made by it may be made by:(a)the claimant; or(b)if the determination affects the Commonwealth—the Commonwealth; or(c)if the determination affects a Commonwealth authority—that Commonwealth authority…(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.

Ratio Decidendi

Legal Principle Established

Section 62 of the SRC Act provides that:62. Reconsideration of determinations(1)A determining authority may, on its own motion:(a)reconsider a determination made by it; or(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.(2)A request to a determining authority to reconsider a determination made by it may be made by:(a)the claimant; or(b)if the determination affects the Commonwealth—the Commonwealth; or(c)if the determination affects a Commonwealth authority—that Commonwealth authority…(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit. As the Reviewable Decisions of 8 February 2017 (Reviewable Physical Injury Decision) and 11 April 2017 (Reviewable Psychological Injury Decision) were made under s 62(5) of the SRC Act, following the reconsideration of the determinations under s 62(4) of the SRC Act, the Tribunal has jurisdiction to review both Reviewable Decisions. Section 29(2) of the AAT Act provides:(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:(a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant… Section 65(4) of the SRC Act modifies s 29(2) of the AAT Act as follows: “Subsection 29(2) of the Act has effect as if the reference to ‘the twenty‑eighth day’ (first occurring) were a reference to ‘the sixtieth day’”. The Applicant lodged applications with the Administrative Appeals Tribunal for review of the Reviewable Physical Injury Decision on 16 February 2017; and for review of the Reviewable Psychological Injury Decision on 21 April 2017. Therefore the Applicant was within the sixty-day prescribed time for applying to the Tribunal for a review of both decisions (s 29(2) AAT Act; s 65(4) SRC Act). ISSUES FOR DETERMINATION The issues for determination by the Tribunal are common for both the Physical Injury Decision (2017/0853) and the Psychological Injury Decision (2017/2363). The Applicant stated the issues as follows in its Statement of Facts, Issues and Contentions (Exhibit A2):1. As to 2017/0853, whether the Applicant had recovered from her physical injuries as at 18 January 2017 and whether liability should continue to be accepted for the physical injuries; and2. As to 2017/2363, whether the Applicant’s psychological condition continues to relate to the incident of 21 January 2016 and whether liability should be accepted for incapacity payments from 27 April 2017, and also whether liability should be accepted for medical treatment for those injuries from 23 November 2016 onwards.