Mitchell and Comcare (Compensation) - [2016] AATA 871

Mitchell and Comcare (Compensation) [2016] AATA 871 (4 November 2016)

Division

GENERAL DIVISION

File Number(s)

2016/1568

Re

Albertus Mitchell

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Dr L Bygrave, Member
Dr M Couch, Member

Date 4 November 2016

Place Sydney
The Tribunal sets aside the reviewable decision and in substitution decides that Albertus Mitchell continues to be entitled to the terms of the Comcare determination dated 8 April 2011.
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Dr L Bygrave, Member
CATCHWORDS
COMPENSATION – liability initially accepted for aggravation of adjustment disorder with anxious and depressed mood – later determination found condition was a result of a pre-existing, constitutional personality disorder – whether applicant remains presently entitled to compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 – decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19
REASONS FOR DECISION
Dr L Bygrave, Member
Dr M Couch, Member
November 2016
INTRODUCTION

The applicant, Mr Albertus Mitchell, was born in 1974.
Mr Mitchell attended the University of NSW where he completed a Bachelor of Electrical Engineering in 1998 and a Masters of Technology Management in 2000. Between 1998 and 2002, Mr Mitchell was employed by Boeing Australia, Lucent Technology and ADI. Mr Mitchell moved to Canberra and was employed from 2002 to 2006 as a Systems Engineer working on various defence projects.
On 23 October 2006, Mr Mitchell commenced employment at the Department of Defence (the Department) in Canberra. His employment at the Department was terminated on 14 October 2009.
On 8 April 2011, Comcare accepted liability for an injury of ‘aggravation of adjustment disorder with anxious and depressed mood’ (compensable injury) that was deemed to have been sustained by Mr Mitchell on 11 July 2009 and was significantly contributed to by his employment with the Department. Comcare issued a determination on 17 October 2011 that Mr Mitchell had suffered a 30% whole person impairment (WPI) in relation to his compensable injury.[1]
[1] A letter from Comcare dated 15 November 2011 stated that, following reconsideration by a Comcare delegate, Mr Mitchell’s WPI rating was increased from 25% to 30%.
Following a medical assessment on 4 December 2015, Comcare determined on 27 January 2016 that Mr Mitchell was not presently entitled to compensation for incapacity under s 19 and/or medical expenses under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). This determination was affirmed by Comcare on 2 March 2016.
On 23 March 2016, Mr Mitchell lodged an application to the Administrative Appeals Tribunal for a review of the determination by Comcare on 2 March 2016.
The application was heard in Sydney on 6 and 7 September 2016. Mr Mitchell attended the hearing in person and had legal representation.
ISSUE FOR DETERMINATION
There is substantial material before the Tribunal relating to incidents that occurred while Mr Mitchell was employed at the Department and processes involved with resolving those incidents and the compensable injury.
This application does not require, and it is not appropriate for, the…

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) [2016] AATA 871
Case: [2016] AATA 871
Decision Date: 4 November 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mr Mitchell against a decision by Comcare to affirm a determination that he no longer suffered from a compensable injury. Comcare had initially accepted liability for an aggravation of an adjustment disorder with anxious and depressed mood. However, a later determination found that Mr Mitchell's condition was the result of a pre-existing, constitutional personality disorder, and therefore he was no longer presently entitled to compensation under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988*.

The Tribunal was required to determine whether Mr Mitchell continued to suffer from the effects of his compensable injury, specifically an adjustment disorder with anxiety and depressed mood, which had been significantly contributed to by his employment. This involved assessing whether his condition was a consequence of his employment or a pre-existing personality disorder, and whether the sequelae of the employment stressor were ongoing.

The Tribunal considered extensive medical evidence from various practitioners. While some reports suggested a possible residual psychological vulnerability or constitutional cause for Mr Mitchell's condition, the Tribunal found the weight of medical evidence indicated that Mr Mitchell continued to suffer from an adjustment disorder with anxious and depressed mood. The Tribunal was not persuaded by a diagnosis of a general personality disorder, noting inconsistencies with other treating psychiatrists and a reliance on a report from a practitioner Mr Mitchell did not fully engage with. The Tribunal concluded that the employment at the Department was the stressor for his adjustment disorder, and the ongoing consequences, including loss of employment and career interruption, constituted continuing sequelae of his compensable injury.

Accordingly, the Tribunal set aside Comcare's reviewable decision and substituted a decision that Mr Mitchell continued to be entitled to the terms of the original Comcare determination dated 8 April 2011.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Mitchell told the Tribunal that he felt his symptoms had gradually improved since 2014 when he had regularly begun meeting with Dr Lee, his current psychiatrist. By late 2015, he had felt well enough to consider implementing a rehabilitation program for returning to work. This progress was interrupted by Comcare’s decision in January 2016 that he no longer suffered the effects of his compensable injury. Mr Mitchell said it was also set back by the Department’s decision to notify Nova Systems that he was a security risk, after Nova Systems offered him employment as a Systems Engineer in May 2016.Medical evidence The Tribunal has been provided with extensive documentation which refers to Mr Mitchell experiencing anxiety and depression in relation to his workplace situation, and being diagnosed with an adjustment disorder with anxiety and depressed mood. These include:·Reports of Dr Jonathan Turtle (General Practitioner) dated 7 December 2007, 11 December 2009 and 26 February 2010.[2]·Report of Dr Graham George (Consultant Psychiatrist) dated 25 January 2008.[3]·Reports of Mr Noel Eastwood (Psychologist) dated 19 February 2008, 26 September 2008 and 9 September 2009.[4]·Report of Dr Jeffrey Swift (Consultant Psychiatrist) dated 4 February 2010.[5]·Reports of Dr Anthony Dinnen (Consultant Psychiatrist) dated 15 September 2011 and 1 November 2012.[6]·Report of Dr John Taylor (Consultant Psychiatrist) dated 26 February 2014.[7][2] Exhibit T1: T3 (p 6), T14 (p 48), T21 (p 75).[3] Exhibit T1: T4 (p 13).[4] Exhibit T1: T6 (p 22), T7 (p 23), T8 (pp 24-25), T10 (pp 27-28), T20 (p 72).[5] Exhibit T1: T19 (p 63).[6] Exhibit T1: T32 (p 140), T49 (p 218).[7] Exhibit T1: T58 (p 280). The following reports also support a diagnosis of an adjustment disorder for Mr Mitchell but suggest that the cause of his condition is not solely related to his workplace situation at the Department:·Dr Inglis Howe Synnott (Consultant Psychiatrist) on 15 January 2013 diagnosed Mr Mitchell with ‘Major Depressive Disorder; alternatively, a diagnosis of Adjustment Disorder with anxiety and depressed mood would be equally valid.’ Dr Synnott further noted that it is possible that Mr Mitchell had ‘a residual psychological vulnerability’ which ‘became apparent in the context of his workplace issues’. This could explain why Mr Mitchell ‘has not improved since leaving work in 2009 and why he has not been able to significantly move on in his life’.[8] Dr Synnott provided an addendum to his differential diagnosis, which stated in part:The medico-legal setting is quite unlike a clinical setting and the differences should be appreciated when you are interpreting a report prepared by a doctor in a medical-legal situation. The DSM-IV classification system was not devised for medico-legal purposes and may not be applicable in that setting, where the alleged symptoms or ‘difficulties’ may be incorrectly attributed to a psychiatric condition or a particular stressor.·Dr Klaas Akkerman (Psychiatrist), in reports dated 20 March 2014 and 30 May 2014, diagnosed Mr Mitchell with an ‘adjustment disorder [which] is an abnormality of mood… It is chronic.’ He also stated his belief that the cause of this condition in Mr Mitchell was ‘constitutional’ because his condition had not improved since he had left work and been removed from ‘stressors with work’.[9] Dr Akkerman provided a further report dated 29 August 2016, in which he confirmed his diagnosis from 2014 but did not know whether Mr Mitchell continued to suffer the effects of his compensable injury because he had not seen him for two years.[10][8] Exhibit T1: T50 (p 226).[9] Exhibit T1: T60 (p 296), T63 (p 315)[10] Exhibit R1.

Decision

Reasons for decision

On the basis of the evidence before the Tribunal, we are satisfied that Mr Mitchell continued to suffer from the effects of his compensable injury on 27 January 2016. DECISION The Tribunal sets aside the reviewable decision and in substitution decides that Mr Mitchell continues to be entitled to the terms of the Comcare determination dated 8 April 2011.

Ratio Decidendi

Legal Principle Established

Dr Lee acknowledged Mr Mitchell’s childhood experiences but noted that, although these may have contributed to his interpersonal sensitivity, these experiences had not caused his current anxiety and depression or his adjustment disorder. She stated that, while Mr Mitchell had ‘a lot of issues going on’, most of these were ‘in the background’. Rather, it was his adjustment disorder that was impacting on his capacity to return to work.CONSIDERATION On 2 March 2016, Comcare affirmed the determination made on 27 January 2016 that Mr Mitchell no longer suffered from the compensable injury. Comcare relied solely on the medical reports by Dr Akkerman, Dr Ventura and Dr Lee, and determined that Mr Mitchell has a psychiatric condition but this condition ‘is as a result of a pre-existing, constitutional personality disorder’. We have considered all the evidence before the Tribunal and find that:·Mr Mitchell suffered from an adjustment disorder with anxiety and depressed mood that was significantly contributed to by his employment at the Department. This is the compensable injury that Comcare accepted liability for on 8 April 2011.·Mr Mitchell has personality vulnerable features as described by Dr Lee and Dr Dimarco. We are not persuaded by Dr Ventura’s diagnosis that Mr Mitchell has a general personality disorder because this is inconsistent with the evidence of the other psychiatrists (Dr George, Dr Swift, Dr Dinnen, Dr Taylor, Dr Synnott, Dr Akkerman, Dr Dimarco and Dr Lee) who have treated and diagnosed Mr Mitchell’s psychiatric condition since 2008. We also note that Dr Ventura relied on Dr Akkerman’s assertion that Mr Mitchell’s condition may be congenital to make her diagnosis. We place limited weight on Dr Akkerman’s report in view of Mr Mitchell’s oral evidence to the Tribunal that he left his appointment with Dr Akkerman before it was completed.·Dr Ventura’s opinion that ‘bipolar affective disorder Type II should be considered as a differential diagnosis’ relied on the diagnosis of Dr Anis set out in the discharge summary dated 4 July 2011 from the St John of God Hospital. As there is no further information provided to the Tribunal in relation to this diagnosis and no evidence of a diagnosis of bipolar affective disorder Type II from any of the other consulting psychiatrists who have treated Mr Mitchell, we are not persuaded by this opinion.·The weight of medical evidence shows that Mr Mitchell continues to suffer from an adjustment disorder with anxious and depressed mood. The ‘stressor’ for his adjustment disorder was his employment at the Department, which ceased in 2009. The sequelae of the stressor are the consequences of his compensable injury, which are continuing. The sequelae of the stressor include Mr Mitchell’s enduring loss of employment and interruption to his career, and dealing with ongoing legal proceedings associated with his compensable injury. We note Dr Synnott’s view that it may be difficult to correctly attribute symptoms to a particular stressor in a medico-legal context.CONCLUSION

Division	GENERAL DIVISION
File Number(s)	2016/1568
Re	Albertus Mitchell
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr L Bygrave, Member Dr M Couch, Member
Date	4 November 2016
Place	Sydney