NXPQ and Comcare (Compensation)

Case [2021] AATA 4094

NXPQ and Comcare (Compensation) [2021] AATA 4094 (9 November 2021)

Division:General Division

File Numbers:         2020/5187, 2021/3095

Re:NXPQ  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance 

Date:9 November 2021

Place:Sydney

The applications for review are dismissed.

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

Deputy President J W Constance

CATCHWORDS

WORKERS’ COMPENSATION – previous application for review to Administrative Appeals Tribunal – previous application affirmed by the Tribunal – where new application based on substantially same facts as in previous application – abuse of process – application for review dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Seafarers Rehabilitation andCompensation Act 1992 (Cth)

CASES

Commonwealth v Snell (2019) 269 FCR 18
Novosel v Comcare (2017) 72 AAR 269
Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
ZDHG and Comcare [2019] AATA 5028

REASONS FOR DECISION

INTRODUCTION

  1. On 25 August 2020, the Applicant applied to the Tribunal to review a decision of Comcare to refuse his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) (2020/5187). I shall refer to this decision as the reviewable decision.  The Applicant’s claim was made in respect of a mental injury he claimed he suffered as a result of his employment by the Australian Federal Police during the period 2007 to 2014.

  2. On 14 May 2021, the Applicant applied to the Tribunal to review a decision of Comcare to refuse his claim for permanent impairment and non-economic loss for a psychological condition (2021/3095). The review of the permanent impairment decision has been linked with the reviewable decision in the Tribunal.

  3. On 18 May 2021, Comcare applied to have the Applicant’s application dismissed on the basis that it was an abuse of the processes of the Tribunal as it was made on substantially the same facts as a claim which had previously been decided by the Tribunal.

  4. For the reasons which follow the applications will be dismissed.

    BACKGROUND

  5. In 2000, the Applicant commenced employment by the Commonwealth as an Australian Federal Police Officer.  With his agreement he was made redundant from this position in 2014.

  6. In August 2017, the Applicant lodged a claim with Comcare for a “psychiatric injury”. He alleged that “the nature and conditions of my employment with the AFP, between 2007 and my resignation in 2014 were causative of my condition.”  The Applicant stated that he first sought medical treatment for the condition on 6 July 2009.[1]  On 23 November 2017 Comcare refused to accept liability for this claim and the Applicant applied to the Tribunal to review Comcare’s decision.

    [1] Supplementary T documents at 380.

  7. The application for review was heard by the Tribunal in February and April 2019.  Senior Member Kelly was the Presiding Member. On 28 November 2019, the Tribunal affirmed Comcare’s decision to refuse to accept liability for the condition suffered by the Applicant (the 2019 decision).

  8. In her reasons for decision, Senior…

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NXPQ and Comcare (Compensation) [2021] AATA 4094
Case
[2021] AATA 4094
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review by the Applicant against a decision by Comcare to refuse liability for a psychiatric injury. The Applicant, a former Australian Federal Police Officer, lodged a claim alleging that the nature and conditions of his employment between 2007 and 2014 caused his condition, stating he first sought medical treatment in July 2009. Comcare refused the claim, and the Applicant sought review by the Administrative Appeals Tribunal (AAT). The AAT affirmed Comcare's decision in 2019, finding that the Applicant's mental health deteriorated after he accepted a voluntary redundancy offer, and that his employment with the AFP had not adversely impacted his mental health during the period in question.

The central legal issue before the court was whether the Applicant's subsequent application constituted an abuse of process, given that it was based on substantially the same facts as the previous application that had been reviewed and affirmed by the Tribunal. The court was required to determine if the Applicant was attempting to relitigate issues that had already been finally determined.

The court reasoned that the Applicant's current application was based on the same factual matrix and sought to challenge the same decision that had been the subject of the 2019 AAT review. The Tribunal's previous decision had thoroughly considered the evidence, including medical opinions and the Applicant's employment history, and had concluded that the Applicant was not entitled to compensation for PTSD as a result of his employment. The court found that allowing a new application based on the same grounds would undermine the finality of the Tribunal's decisions and constitute an abuse of process.

Consequently, the court dismissed the Applicant's application for review.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow the applications will be dismissed.BACKGROUND In 2000, the Applicant commenced employment by the Commonwealth as an Australian Federal Police Officer. With his agreement he was made redundant from this position in 2014. In August 2017, the Applicant lodged a claim with Comcare for a “psychiatric injury”. He alleged that “the nature and conditions of my employment with the AFP, between 2007 and my resignation in 2014 were causative of my condition.” The Applicant stated that he first sought medical treatment for the condition on 6 July 2009.[1] On 23 November 2017 Comcare refused to accept liability for this claim and the Applicant applied to the Tribunal to review Comcare’s decision. [1] Supplementary T documents at 380. The application for review was heard by the Tribunal in February and April 2019. Senior Member Kelly was the Presiding Member. On 28 November 2019, the Tribunal affirmed Comcare’s decision to refuse to accept liability for the condition suffered by the Applicant (the 2019 decision). In her reasons for decision, Senior Member Kelly said, in part:The submission that the Applicant took VR [voluntary redundancy] because he was already sick is not accepted. His mental health deteriorated after the offer of VR was made and then accepted. That he was repatriated early from the Pacific on 14 August 2014 is consistent with him facing the reality of his decision that he was leaving the AFP, which he tried to change on 29 August 2014.Counsel for the Applicant argued that the lack of medical records to corroborate the Applicant’s symptoms between 2010 and 2013 was explained by the Applicant being on international postings during that period and that Dr Lovell conceded that the patient is sometimes the last to know that they are mentally ill. Counsel also referred to the Applicant’s evidence about “getting back on the horse” for every posting and that the events during his Pacific posting was when “pretty much the tub overflowed”.Counsel for the Applicant argued that it was common ground that the Applicant was genuine and honest. The Tribunal accepts that the Applicant genuinely believes that he has PTSD, is aggrieved with the AFP and he does suffer from a mental ailment.Of the medical opinions in evidence, Dr Lovell’s consideration best reflects the facts of the Applicant’s case. Dr Lovell gave oral evidence and maintained his opinions.The Tribunal has had the benefit of much more evidence than any of the practitioners who have considered the Applicant’s condition. It has also had the benefit of legal argument and time to consider the matter.As Dr Lovell said, while the Applicant witnessed traumatic events during his service which could have caused PTSD, they did not. There is no evidence that the Applicant suffered from PTSD prior to the dog attack. Ms Lilley’s evidence in her December 2014 report was that he responded well to treatment and was able to return to work. Dr Lovell referred also to a letter from Ms Lilley dated 1 October 2009 in which she wrote that he had recovered. The lack of reports or records of mental health issues until 2014, apart from in relation to personal issues, support a conclusion that the Applicant’s employment with the AFP was not impacting adversely on his mental health from 2009 to 2014. His most satisfying deployment in the Mediterranean country occurred during that period. Ms Lilley’s clinical notes and report of 24 December 2014 did not reflect the history later recorded by other practitioners, including Associate Professor Robertson, of the impact on the Applicant of a number of traumatic incidents during several deployments.Dr Takyar’s opinion that the Applicant’s condition was a new condition, unrelated to his previous PTSD, supports a finding that the Applicant was not suffering from PTSD after his 2014 deployment.The Tribunal does not accept the diagnosis of PTSD. The Applicant is not entitled to compensation under s 14 of the SRC Act for PTSD as a result of “the nature and conditions of his employment with the AFP” from 2007 to 2014, namely a number of alleged traumatic incidents while on various deployments abroad and within in Australia.[2][2] ZDHG and Comcare [2019] AATA 5028, at [148]-[155].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The application for review was heard by the Tribunal in February and April 2019. Senior Member Kelly was the Presiding Member. On 28 November 2019, the Tribunal affirmed Comcare’s decision to refuse to accept liability for the condition suffered by the Applicant (the 2019 decision). In her reasons for decision, Senior Member Kelly said, in part:The submission that the Applicant took VR [voluntary redundancy] because he was already sick is not accepted. His mental health deteriorated after the offer of VR was made and then accepted. That he was repatriated early from the Pacific on 14 August 2014 is consistent with him facing the reality of his decision that he was leaving the AFP, which he tried to change on 29 August 2014.Counsel for the Applicant argued that the lack of medical records to corroborate the Applicant’s symptoms between 2010 and 2013 was explained by the Applicant being on international postings during that period and that Dr Lovell conceded that the patient is sometimes the last to know that they are mentally ill. Counsel also referred to the Applicant’s evidence about “getting back on the horse” for every posting and that the events during his Pacific posting was when “pretty much the tub overflowed”.Counsel for the Applicant argued that it was common ground that the Applicant was genuine and honest. The Tribunal accepts that the Applicant genuinely believes that he has PTSD, is aggrieved with the AFP and he does suffer from a mental ailment.Of the medical opinions in evidence, Dr Lovell’s consideration best reflects the facts of the Applicant’s case. Dr Lovell gave oral evidence and maintained his opinions.The Tribunal has had the benefit of much more evidence than any of the practitioners who have considered the Applicant’s condition. It has also had the benefit of legal argument and time to consider the matter.As Dr Lovell said, while the Applicant witnessed traumatic events during his service which could have caused PTSD, they did not. There is no evidence that the Applicant suffered from PTSD prior to the dog attack. Ms Lilley’s evidence in her December 2014 report was that he responded well to treatment and was able to return to work. Dr Lovell referred also to a letter from Ms Lilley dated 1 October 2009 in which she wrote that he had recovered. The lack of reports or records of mental health issues until 2014, apart from in relation to personal issues, support a conclusion that the Applicant’s employment with the AFP was not impacting adversely on his mental health from 2009 to 2014. His most satisfying deployment in the Mediterranean country occurred during that period. Ms Lilley’s clinical notes and report of 24 December 2014 did not reflect the history later recorded by other practitioners, including Associate Professor Robertson, of the impact on the Applicant of a number of traumatic incidents during several deployments.Dr Takyar’s opinion that the Applicant’s condition was a new condition, unrelated to his previous PTSD, supports a finding that the Applicant was not suffering from PTSD after his 2014 deployment.The Tribunal does not accept the diagnosis of PTSD. The Applicant is not entitled to compensation under s 14 of the SRC Act for PTSD as a result of “the nature and conditions of his employment with the AFP” from 2007 to 2014, namely a number of alleged traumatic incidents while on various deployments abroad and within in Australia.[2][2] ZDHG and Comcare [2019] AATA 5028, at [148]-[155].

Ratio Decidendi

Legal Principle Established

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