Mitchell and Comcare (Compensation) - [2021] AATA 3376

Mitchell and Comcare (Compensation) [2021] AATA 3376 (17 September 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4342; 2020/2610
Re:Albertus Mitchell
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:17 September 2021
Place:Sydney

In accordance with s 43 of the Administrative Appeals Tribunal Act 1975 (Cth):
(a)The reviewable decision dated 1 July 2019 is affirmed.
(b)The reviewable decision dated 23 April 2020 is set aside and in substitution find that as at 5 December 2019, the applicant did not suffer a ‘disease’ in accordance with s 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Therefore, the pre-requisites, specified under s 37(1) for making any determination, are not fulfilled.
(c)There is no order as to costs.

..................................[sgd]......................................
Senior Member A Poljak
CATCHWORDS
COMPENSATION – applicant previously employed by Department of Defence – adjustment disorder – anxiety – depression – adult attention deficit disorder – hepatitis B – post traumatic stress disorder – renal failure – back pain – claim for boxing classes to be compensated under s 16 – claim for law degree to be included as part of rehabilitation program under s 37 – whether applicant continued to suffer from aggravation of compensable injury during relevant period – whether applicant still suffered a ‘disease’ as defined in ss 4 and 5B – reviewable decision related to boxing classes claim affirmed – reviewable decision related to law degree claim set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Safety, Rehabilitation and Compensation Act 1988(Cth) ss 4, 5A, 5B, 14, 16, 19, 37
CASES
Albertus Mitchell and Comcare [2016] AATA 871
Kirkpatrick v Commonwealth (1985) 9 FCR 36
Pedersen and Comcare [2016] AATA 449
Prain v Comcare (2017) 256 FCR 65; [2017] FCAFC 143
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Senior Member A Poljak
17 September 2021

Mr Mitchell, the applicant, has a Bachelor of Electrical Engineering and a Master of Technology Management from the University of NSW. He has also obtained a Certificate IV in Accounting, a Master of Business Administration, and a Certificate II in Security Operations.
The applicant commenced employment with the Department of Defence (Defence) on 23 October 2006. After 28 October 2009, the applicant’s employment with Defence was terminated.
On 10 October 2007, the applicant claimed that he suffered a psychiatric injury which he alleged was caused by several workplace factors including harassment and interactions with his supervisor. On 9 February 2008, the respondent accepted liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for adjustment reaction with mixed emotional features with a deemed date of injury of 13 June 2007 (compensable injury).
On 3 January 2008, the applicant reportedly stated to Anita Boettger, rehabilitation consultant, that he would kill himself and take other people (Defence personnel) with him. The applicant denied making these threats. On 9 December 2009, the applicant lodged a further claim for compensation for…

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.

Continue reading Mitchell and Comcare (Compensation)

Details

AGLC: Mitchell and Comcare (Compensation) [2021] AATA 3376
Case: [2021] AATA 3376
Decision Date: 17 September 2021

CaseChat Overview and Summary

This matter concerned an application for review of decisions made by Comcare regarding claims by the applicant, a former employee of the Department of Defence. The applicant sought compensation under s 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for boxing classes and sought for a law degree to be included as part of a rehabilitation program under s 37 of the Act. The core dispute revolved around whether the applicant continued to suffer from a compensable "disease" as defined by the Act during the relevant periods.

The court was required to determine several legal issues. Firstly, it needed to ascertain whether the applicant suffered from an aggravation of a compensable injury on 5 December 2019 and, if so, whether that condition still constituted a "disease" as defined in ss 4 and 5B of the Act. Secondly, the court had to consider whether, in light of s 37(1) of the Act, any rehabilitation program should be provided from 5 December 2019. Finally, if a rehabilitation program was deemed appropriate, the court had to assess whether including a law degree was the preferable decision, having regard to the factors outlined in s 37(3) of the Act.

The court reasoned that while the applicant had suffered from an adjustment disorder, by the relevant periods of review, this disorder no longer had a significant impact on his functioning, with other contributing factors having a far greater impact. Consequently, the court found that during the period between 10 September 2018 and 30 February 2019, the applicant did not suffer a "disease" as defined in s 4(1) and s 5B of the Act, meaning he was not entitled to medical treatment under s 16. Furthermore, as at 5 December 2019, the applicant did not suffer a "disease" under s 5B, and therefore, the prerequisites for a rehabilitation program under s 37(1) were not met.

In accordance with s 43 of the *Administrative Appeals Tribunal Act 1975* (Cth), the reviewable decision dated 1 July 2019 was affirmed. The reviewable decision dated 23 April 2020 was set aside, and in substitution, it was found that as at 5 December 2019, the applicant did not suffer a "disease" under s 5B of the Act, meaning no rehabilitation program was required. There were no orders as to 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 regarding the law degree claim are as follows:(a)Whether the applicant suffered from the 2009 aggravation on 5 December 2019 and if so, whether it was still a ‘disease’ as defined in s 5B of the Act; (b)Whether, having regard to s 37(1) of the Act, any rehabilitation program should be provided from 5 December 2019;(c)If providing a rehabilitation program, whether it is the preferable decision for the program to include undertaking a law degree, after having regard to the factors under s 37(3) of the Act.Applicant’s Evidence The applicant claims that boxing classes help him to feel better, help him manage his stress, have social benefits, and provide him with greater self-esteem. He claims that these benefits enable him to undertake his university studies. At hearing, the applicant advised that the boxing classes consisted of some pad work, a little bit of fighting, weights, and general fitness. In cross examination, the applicant was asked about a previous diagnosis of Dr Larsen for post traumatic stress disorder and prior back issues. Dr Larsen suggested in 2013 that the applicant be restricted to a 2.5kg weight limit and limited bending and twisting. The applicant said he did not recall any issues with his back but agreed that he was told to be careful. He reiterated that he needed to do exercise for his mental health and that he found kickboxing worked for him. At present the applicant said he was paying for his university studies and his gym classes out of his own pocket. At hearing he expressed that he was ‘trying to move on’ and was seeking to expand his vocational options because there are ‘no jobs available for [him]’ in his previous profession that don’t require security clearance. At hearing the applicant confirmed that he did not complete his MBA but discontinued the course in 2013 to complete a Graduate Certificate IV in Accounting, which he completed in 2015. Since 2014, the applicant did not make any job applications using this qualification. At hearing he said this was because he ‘required assistance’. The applicant said he last applied for a job in 2016 and has not updated his curriculum vitae since. When pressed in about how his law degree will be any different to his previous qualifications in enabling him to obtain work, the applicant said it would give him more opportunities and he hoped Comcare would help. He also said the university may help him get a job. At the date of hearing, the applicant had completed 12 or 13 subjects and had another 12 more the complete. He started his law degree in 2017. The applicant said he expected to compete his studies and practical legal training by the end of 2022. He had not yet applied for any clerkships or paralegal jobs as he said ‘it’s the references that I’m having concern about… I’m trying to improve my GPA as well’. The applicant said his goal after completing his study and training was to go into legal practice. He said he had an interest in mental health and working for legal aid. The applicant said he was not intending to seek work unless assistance was given and unless he finished his study.

Decision

Reasons for decision

Accordingly, during the period between 10 September 2018 and 30 February 2019, the applicant did not suffer a ‘disease’ as defined in s 4(1) and for the purpose of s 5B of the Act such that the applicant is no longer entitled to any medical treatment under s 16 of the Act. Additionally, as at 5 December 2019, the applicant did not suffer a ‘disease’ in accordance with s 5B of the Act and there was no need for any rehabilitation program under s 37 of the Act. Decision In accordance with s 43 of the Administrative Appeals Tribunal Act 1975 (Cth):(a)The reviewable decision dated 1 July 2019 is affirmed.(b)The reviewable decision dated 23 April 2020 is set aside and in substitution find that as at 5 December 2019, the applicant did not suffer a ‘disease’ in accordance with s 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Therefore, the pre-requisites, specified under s 37(1) of the Act for making any determination, are not fulfilled.(c)There is no order as to costs.

Ratio Decidendi

Legal Principle Established

On 3 October 2012, Professor Farrell, hepatologist, advised that the applicant was treated with Interferon in 2007 for hepatitis B. He reported that the applicant ‘became quite depressed during the interferon period and during the last few years there have been some substantive psychological health issues’. Consideration The decisions under review concern only s 16 compensation and a s 37 rehabilitation program. I cannot review the initial s 14 liability. However, I must determine the nature of the injury for the purpose of its present review, and in so doing can make findings inconsistent with the original s 14 decision to accept liability: Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253. Section 16 of the Act relates to the ‘injury’ the employee has suffered and its effects as at the time treatment was sought. Section 37 of the Act provides that a rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program. ‘Injury’ is defined in s 5A(1) of the Act as follows: injury means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. ‘Disease’ is defined in s 5B of the Act as follows:Definition of disease (1) In this Act: disease means: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. (2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account: (a) the duration of the employment; (b) the nature of, and particular tasks involved in, the employment; (c) any predisposition of the employee to the ailment or aggravation; (d) any activities of the employee not related to the employment; (e) any other matters affecting the employee’s health. This subsection does not limit the matters that may be taken into account. (3) In this Act: significant degree means a degree that is substantially more than material. I accept that in the relevant 2018 and 2019 period, the applicant continued to suffer from symptoms of an adjustment disorder however, the adjustment disorder no longer has a significant impact on the applicant’s functioning as opposed to the far greater impact of other contributing factors.