Paunovska and Comcare - [2012] AATA 887

[2012] AATA 887

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/4913

Re

Violeta Paunovska

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton
Dr Isles, Member

Date 17 December 2012

Place Sydney
Decision Summary
The reviewable decision made on 17 November 2010 is set aside and in place of that decision the Tribunal decides:
Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being a disease, namely an adjustment disorder.
...................[SGD].....................................................
Senior Member A K Britton
CATCHWORDS
WORKER’S COMPENSATION – Injury – Onset of condition – Whether the employee’s employment by the Commonwealth contributed to or aggravated her medical condition “in a material degree” – Relative contribution – Reasonable administrative action – Incapacity for work – Impairment – Safety, Rehabilitation and Compensation Act 1988 (Cth)
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14
CASES
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan 156 FCR 536
Drenth and Comcare [2011] AATA 582
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
R v Abadom [1983] 1 WLR 126
Wiegand v Comcare (2002) 72 ALD 795
REASONS FOR DECISION
Senior Member A K Britton
Dr Isles, Member
17 December 2012

Former Centrelink employee Ms Violeta Paunovska seeks review of a decision made by Comcare to refuse to accept liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an “injury” in the form of a disease, namely an Adjustment Disorder. In a decision made in September 2010 Comcare accepted that Ms Paunovska’s adjustment disorder was significantly contributed to by her employment with Centrelink but concluded that it was a result of “reasonable administrative action” and therefore, by the operation of s 5A of the Act, it was not liable for that disorder.
While there is no argument that Ms Paunovska suffers from an adjustment disorder, Comcare now contends that employment did not contribute to a significant degree to that disorder and, in the alternative, that it was the result of “reasonable administrative action”. Ms Paunovska disagrees. A further issue between the parties is whether Ms Paunovska had been suffering from the adjustment disorder prior to the purported reasonable administrative action said to have taken place in the latter part of 2009. Comcare submits that the condition post-dated that action and did not develop until early 2010; Ms Paunovska on the other hand contends that she has been suffering from the condition since January 2009.
LEGISLATIVE SCHEME
Comcare will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Ms Paunovska if it results in impairment or incapacity for work (s 14 of the Act).
The Act defines “injury” to include “a disease suffered by an employee” but not a disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment (s 5A(1)).
“Disease” is defined to mean: (a) an ailment…

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 Paunovska and Comcare

Details

AGLC: Paunovska and Comcare [2012] AATA 887
Case: [2012] AATA 887
Decision Date: 17 December 2012

CaseChat Overview and Summary

The case of Paunovska v Comcare was heard in the Administrative Appeals Tribunal of Australia. The dispute revolves around the claim of Ms Paunovska, a former Commonwealth employee, for worker's compensation in relation to a psychological disorder allegedly caused by her employment. Comcare, the Commonwealth's insurer, contests the claim, arguing that the psychological condition did not arise from her employment or was not materially contributed to by it. The tribunal must determine whether Ms Paunovska's employment by the Commonwealth contributed to or aggravated her condition to a material degree, and if so, whether Comcare is liable for the condition under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The central legal issues addressed by the court were the determination of the onset date of Ms Paunovska's psychological condition, the extent to which her employment contributed to or aggravated the condition, and whether Comcare is liable for the condition under the Act. The court had to weigh conflicting expert opinions on the onset date of the condition, assess the reliability of Ms Paunovska's evidence given the inconsistencies in her accounts, and consider the significance of her failure to disclose her full medical history to the examining experts.

The tribunal found that Ms Paunovska's evidence, while not entirely reliable due to inconsistencies and omissions, was supported by multiple expert opinions indicating that she had been suffering from an adjustment disorder since early 2009. Despite Comcare's argument that the delay in treatment until late 2009 should indicate a later onset date, the tribunal accepted that the condition could still be traced back to early 2009 based on the overall medical evidence. The tribunal concluded that Ms Paunovska's employment did contribute to or aggravate her condition to a material degree, thereby making Comcare liable for the condition under the Act.

The tribunal ordered Comcare to provide Ms Paunovska with worker's compensation for her psychological condition, acknowledging the material contribution of her employment to the onset or aggravation of her condition. The decision highlights the importance of a comprehensive and reliable assessment of medical evidence in worker's compensation claims, particularly where the onset and nature of a psychological condition are in dispute.

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

His Honour’s statement that a worker claiming to suffer a compensable injury must be able to demonstrate that s/he is in a condition “outside the boundaries of normal mental functioning and behaviour” was made in the context of a discussion about a worker found by the tribunal not to be mentally ill, mentally disturbed or suffering from any psychological disorder. In contrast, as noted, by January 2009 Ms Paunovska was not merely suffering from work-related stress but suffering from a psychological disorder. It does not follow, as we understand Comcare to suggest that because she continued to work for a significant period that she was not suffering from a “disease”. While incapacity is relevant to the question of whether Comcare is liable for Ms Paunovska’s disease by the operation of s 14 of the Act, the issue of incapacity is not determinative of the question of whether she suffered a “disease”. Reliability of Ms Paunovska’s evidence Before considering the central question of the degree to which, if any, Ms Paunovska’s adjustment disorder was contributed to by her employment, it is necessary to evaluate the reliability of her evidence and the histories she gave to the experts. There are a number of inconsistencies between the accounts given by Ms Paunovska and other evidence. For example she told Drs Lovric, Rees and Champion that she had not experienced any work problems prior to those the subject of her current claim. Documents produced by Comcare reveal ongoing problems, involving allegations of unplanned absences and performance dating back to 1997 resulting in a referral for medical assessment and mediation. In addition the material makes clear that Ms Paunovska failed to fully disclose her history of anxiety and depression to the experts who examined her in the context of her current claim. Dr Rees recorded Ms Paunovska “denied having any previous problems with her performance, interpersonal issues or any worker’s compensation claims … She denied any previous problems with her mental health. She denies that there was a medical certificate in 2007 suggesting that she had problems with stress. She denies having postnatal depression or anxiety problems in the past”. Dr Lovric took a similar history And under the heading “Past Psychiatric History”, wrote “nil of note”. Dr Champion in his report of 7 May 2011, wrote “Ms Paunovska told me that she had not required previous help for her nerves or the prescription of antidepressant or other psychoactive medications from general practitioners or psychiatrists and had not suffered with anxiety, depression or any form of psychiatric disorder prior to the onset of depression during her leave in 2010 against a background of difficulties in the workplace”. In a letter to Centrelink in December 1999 Ms Paunovska’s (then) treating psychiatrist wrote of the significant impact harassment in the workplace had caused to Ms Paunovska’s mental health. Some months later she was referred by Centrelink for a fitness to work assessment and diagnosed as suffering from reactive anxiety and depression. In 2004 following the birth of her daughter she told a medical officer at Bankstown Hospital that she was feeling “more stressed than usual” and was referred to, but did not attend, an antenatal psychiatrist. In a statement prepared in June 2012 for the purpose of these proceedings, Ms Paunovska stated that she could not recall as claimed by Comcare seeing a psychiatrist in late 1999. In evidence-in-chief she admitted that she had been mistaken.

Decision

Reasons for decision

In March 2011 Ms Paunovska was referred for counselling to psychologist, Ms Teresa Hatfield and continues to see Ms Hatfield on a regular basis. Ms Hatfield is of the opinion that Ms Paunovska suffers from a major depressive disorder. In a report dated 30 August 2012 Ms Hatfield recorded that Ms Paunovska had been experiencing intermittent symptoms of depression and anxiety between 2006 and early 2008, which “minimally impaired” her function. She thought however that from late 2008:[A]s she perceived the harassment increasing in frequency, it appears the severity of her symptoms would have met the criteria of diagnosis for Major Depressive Disorder, with her symptoms beginning to impair her capacity to function in personal and occupational settings on a more consistent basis”. Conclusion In the decision the subject of Ms Paunovska’s application to the AAT, Comcare found that Ms Paunovska experienced difficulties at work by 7 January 2009 and that was the date of injury. Comcare now contends that the date of onset of Ms Paunovska’s adjustment disorder was early 2010, possibly late 2009. It points out that despite her stated opinion that Ms Paunovska had been suffering from an adjustment disorder since January 2009, Dr Mapa did not consider treatment warranted until 12 months later and, apart from a couple of days in late 2009 did not certify Ms Paunovska unfit to work until December 2009. Comcare also points out that Dr Lovric, who saw Ms Paunovska in February 2010, had recorded that Ms Paunovska related her history “without distress or anxiety” and concluded that she was suffering only mild anxiety symptoms. It is unfortunate that we have not had the opportunity to explore with Dr Mapa the basis of her opinion about the date of onset of Ms Paunovska condition. Her clinical notes, produced in these proceedings, are indecipherable and provide little assistance. Nonetheless she is not the only practitioner to conclude that Ms Paunovska had been suffering from an adjustment disorder (however described) since early 2009. Drs Dinnen and Champion and Ms Hatfield share that opinion. While they did not see Ms Paunovska until two years after the date of purported onset and are no doubt reliant to some extent on Dr Mapa’s opinion, none suggested that the decision not to treat Ms Paunovska’s condition for some 12 months was incompatible with a diagnosis of adjustment disorder. Dr Lovric is alone among the experts to conclude that Ms Paunovska was not suffering some form of psychiatric condition in early 2010. The single line entry in the report prepared by Dr Rees (who it will be recalled saw Ms Paunovska two months after she had been assessed by Dr Lovric)— “[Ms Paunovska] developed a psychiatric condition since seeing Dr Lovric” — sits uncomfortably with her criticism of the delay in Ms Paunovska’s treatment and the history recorded and apparently accepted, of Ms Paunovska experiencing panic attacks for over a year (as at April 2010).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/4913
Re	Violeta Paunovska
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member A K Britton Dr Isles, Member
Date	17 December 2012
Place	Sydney