Pedrosa-Hart and Comcare (Compensation) - [2018] AATA 4225

Pedrosa-Hart and Comcare (Compensation) [2018] AATA 4225 (13 November 2018)
Division:GENERAL DIVISION
File Numbers: 2015/6416; 2016/0215; 2017/0605
Re:Victoria Pedrosa-Hart
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Deputy President Rayment QC
Date:13 November 2018
Place:Sydney

All three reviewable decisions are set aside and remitted to the respondent for computation of the monetary entitlements of the applicants.
....................................[SGD]....................................
Deputy President Rayment QC
Catchwords
COMPENSATION – workers’ compensation – compensation for incapacity under ss 19 – 21 of the Safety, Rehabilitation and Compensation Act 1988 – compensation for medical expenses under s 16 of the Act – compensation for permanent impairment and non-economic loss under ss 24 and 27 of the Act – aggravation of adjustment reaction with mixed emotional features or major depression – whether the disease went into remission and returned at a later time – the disease suffered by the applicant currently is a recurrence of the same disease as suffered by her previously – whether the employment made a contribution to a significant degree to the disease – contribution made by the employment was to a significant degree – applicant entitled to compensation for disease – applicant entitled to compensation for medical expenses – applicant’s permanent impairment found as 15% and entitled to non-economic loss – reviewable decisions set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975, s 34D
Safety Rehabilitation and Compensation Act 1988, ss 4, 5A(1)(c), 5B, 7, 19, 20, 21, 24
Cases
Asioty v Canberra Abbattoir Pty Ltd (1989) 167 CLR 533
Azizi and Minister for Home Affairs [2018] AATA 2561
Comcare v Mooi (1996) 69 FCR 439
Hart and Comcare [2011] AATA 601
HSDR and Comcare (Compensation) [2017] AATA 779
Lonergan v Comcare [2005] FCA 377
Novosel v Comcare [2017] FCA 722
Zdziarsky v Telstra Corporation Ltd [2015] FCA 207 (2015); 146 ALD 354
REASONS FOR DECISION
Deputy President Rayment QC
13 November 2018

Mrs Pedrosa-Hart moved to Australia in 1981, having studied teaching at Catholic University, Rio de Janeiro, and undertaken further studies in the United Kingdom. Her teaching qualifications were not recognised here and she worked for a variety of government agencies in clerical roles. In August 2000, she commenced employment with the Child Support Agency, and her duties required her to spend the majority of her time on the phone with members of the public.
Some of those calls came from stressed and abusive persons and in the first years, she felt fully supported by her team leaders and managers, and she managed well.
In the year 2005, she had a clash with her new team leader and reacted badly to criticism from her. She had difficulty eating and sleeping and was referred to a psychiatrist, Dr Harris, and a psychologist, Mr Gross. She attended their rooms from 2005 and continued to see them from time to time later.
In 2005, she made a workers’ compensation claim which was settled during her review proceedings in this Tribunal. I will refer to the settlement below. In her statement, she says…

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.

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Details

Case: [2018] AATA 4225
Decision Date: 13 November 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms. Pedrosa-Hart, against decisions made by Comcare regarding her entitlement to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The dispute centred on whether a mental disease suffered by the applicant in 2014 was a recurrence of a previously diagnosed condition, and whether her employment had contributed to this recurrence to a significant degree. The applicant sought compensation for incapacity, medical expenses, and permanent impairment. The case was heard by Deputy President Rayment QC.

The primary legal issues before the court were: (1) whether the applicant's 2014 condition constituted the same disease as her earlier conditions in 2005 and 2009; (2) whether the employment had contributed to a significant degree to the aggravation or recurrence of this disease; and (3) the extent of the applicant's permanent impairment and entitlement to non-economic loss. The court also considered the nature of mental injury as a "disease" under the Act and the interpretation of "aggravation" in the context of recurring conditions.

Deputy President Rayment QC found that the applicant suffered from a mental disease that had not gone into complete remission and recurred in late 2013 or early 2014. The court accepted the applicant's evidence regarding the recurrence of her symptoms, finding her to be truthful and reliable, despite some inconsistencies. It was determined that the employment events of 2009-2010 were the occasion for the applicant to relive earlier reactions and contributed significantly to her condition, making it a recurrence or aggravation of the same disease. The court applied the principle that for a disease, employment must contribute to a significant degree to the aggravation, and that "aggravation" includes recurrence. The legislation was viewed as beneficial, no-fault legislation, supporting a broad interpretation.

The court concluded that the applicant was entitled to compensation for her disease and medical expenses. Her permanent impairment was assessed at 15%, entitling her to non-economic loss. Consequently, the reviewable decisions were set aside and remitted for further consideration in accordance with these findings.

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

In these proceedings, whether or not the 2009 disease was the same as the 2005 disease does not really matter. All that is important is whether or not the 2014 disease is the same as the 2009 disease. It seems that the 2009 disease persisted until after mid-2011, because medical treatment continued until then. The 2014 disease commenced in later 2013 or early 2014. Therefore only about two years later. The applicant was not working during that period of about two years. A little more than two years elapsed between November 2006 and April 2009. The oral evidence of the applicant The applicant gave evidence before me over most of a day. Her condition was very fragile. However, I formed a good impression of her veracity. I have been provided with detailed submissions by the respondent suggesting that on particular issues, I should reject the evidence which she gave. In some cases, the submission was based upon notes made by others, including Mr Gross, and to some extent, it was based upon unlikely evidence which she gave, such as a statement that she was unaware that Comcare was liable to meet medical expenses. These answers, if incorrect, did not appear to me to be deliberately incorrect, and I have sought in the findings I have made concerning the applicant’s evidence to concentrate upon evidence which she gave which I am satisfied was both truthful and reliable. Reports to a medical professional can be akin to a stream of consciousness rather than a disciplined answering of questions in the witness-box, and I would not necessarily reject an assertion in the witness box or in her written statement merely because it is not confirmed in contemporaneous notes of Mr Gross or a doctor. Those notes were, in general, prepared for a different purpose. She said that in or about 2014 (because of her husband’s retirement) she thought she might try to go back to work and that as a result of her illness, she could not bring herself to make an application, which in turn made her feel worthless, and first led to the recurrence of her symptoms. She agreed with the respondent’s counsel that she had told her team leader in August 2010 that she would be retiring on 14 October 2010. She said she felt she had no option about that matter because Mr Tubman of the CSA said that the CSA is a phone-based agency and there was no other position available than a position in which she would have to take phone calls. She said she could not go back on the phones on medical advice. The applicant said that Mr Tubman had said that she would get most of her long service leave if she retired in October. Mr Tubman was not called by the respondent to dispute what the applicant said about Mr Tubman’s remarks to her in 2009-2010. The applicant’s counsel submitted that in the circumstances, her “retirement” of 2010 amounted to a constructive dismissal, although she had conceived of it as a voluntary matter in 2010. No such question seems to me to be directly material to this review, although I accept that what was said to her by Mr Tubman influenced her to retire.

Decision

Reasons for decision

What s 5B requires is that the aggravation was contributed to by the employment, to a significant degree. The aggravation would not have occurred if the relevant employment events of 2009-2010 had not occurred. Those events and their consequences for the applicant were the occasion for her to relive her earlier reactions. It may also be said, no doubt, that the employment had led her to be in a condition that she was liable, with appropriate stressors to suffer the same symptoms again. Those things make it possible to conclude that the employment did contribute to the “aggravation”. On the basis that it is desirable that I deal with issues that arguably would arise on appeal, I do so conclude, and also conclude that the contribution made by the employment is substantially more than material so as to amount to a contribution that is to a significant degree.CONCLUSION I have understood the claim of the applicant to be that her disease returned in 2014 when she first sought medical treatment, which relieves me from the need to consider the provisions of s 7(4) of the Act in the circumstances of this case. That is, for example, the s 14 claim pressed has a starting date when, in 2014, the applicant began again to seek medical treatment for her disease. Whether or not I have correctly understood the claim of the applicant, I do not understand the evidence of full incapacity for work led in this case by the applicant to relate to the period from late 2011 until 2013/2014. Such full incapacity requires proof, not only of the return of the disabling consequences of her disease in 2014, but also evidence of actual incapacity in the intervening period of in excess of two years, and evidence is not before the Tribunal to that effect. Before the applicant contemplated a return to work in about late 2013, and thereafter considered what she had been told by Shannon, all of which brought back to her mind the stressors which had previously led her to suffer the ailment of 2009, and to re-experience the symptoms which she then experienced, her incapacity to work is unproven. In 2014, she suffered, perhaps to a heightened degree, symptoms reported by medical professionals, which meant that she was then incapable to re-enter the workforce. A much more confined claim could have been made in respect of the intervening period between 2011 and later 2013/early 2014, that the applicant had an incapacity for work except with the restriction which was in place at the time of her retirement or a corresponding similar restriction. If she had such a limitation upon her employability, it was not the reason she did not seek such employment, because once she did retire, she sought no employment at all, and no evidence has been led to explain that fact on the ground of a continuing (limited) incapacity. Those facts suggest to me that the claim which should be dealt with is a claim starting with the period from late 2013/early 2014 rather than a claim starting at the date of her retirement.

Ratio Decidendi

Legal Principle Established

A mental injury can be an “injury” as s 5A(1)(b) and (c) makes clear. In the case of a disease, the aggravation must be contributed to, to a significant degree, by the employment. In the case of an injury other than a disease, the aggravation must arise out of, or in the course of, the employment.CONSIDERATION My finding is that the applicant suffered as from late 2013 to date, from symptoms, the same as her symptoms of 2009, which were relevantly similar to her condition in 2005. She had mental disease from which she suffered and still suffers diagnosable symptoms in at least those periods. The 2009 symptoms seem to have improved by early 2011, but seem to have continued, to some extent, until after the middle of 2011. She had relief from those symptoms in 2011 until sometime in late 2013 or early 2014, when she relapsed. It was, in my finding, the same disease from which she never fully recovered and which was capable of recurring in 2013 and 2014, and which never went into complete remission. It has now become persistent and chronic. The beginning of her relapse in late 2013 or early 2014 involved end rumination about employment events triggered by contemporary events or discussions. My preferred position is that we are here concerned with a disease, rather than an injury other than a disease. Her injury, in the nature of a disease, was capable of being brought back. The disease was not always florid, nor ever in “full remission” in the sense of being resolved completely. Recurrence or relapse was on the cards, and that occurred in later 2013 or early 2014. Section 5B speaks both of an ailment and of the aggravation of an ailment, and to require in each case that the ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. The word “aggravation” includes recurrence, but s 5B does not require that all cases of recurrence must be dealt with as if they were an aggravation. An “aggravation” will include in ordinary English, a worsening of a disease, such as when a person who is partially incapable of working becomes fully incapable of working, because of the progression of an injury suffered during the employment. If section 5B were to be construed as requiring that the employment contributed, to a substantial degree, to the ”aggravation”, then it may mean that a case of the disease which worsens without the employment contributing to the worsening, the employee could not recover. If the disease were cancer, which went into remission, and then returned, the return as recurrence and therefore an “aggravation” as defined, could not be thought to require a work-related contribution before compensation could be recovered by the employee. The legislation is beneficial, no-fault legislation,[1] and such a view would not conform to that model. Moreover, in my opinion, section 5B does not compel such a construction, and I have concluded that the case is one of the same disease being suffered in 2014 as was suffered in 2009. [1] See the discussion by Perram J in Zdziarsky v Telstra Corporation Ltd [2015] FCA 207 (2015) 146 ALD 354 at [14]-[25].