Percival and Comcare (Compensation) - [2022] AATA 3728

Percival and Comcare (Compensation) [2022] AATA 3728 (4 November 2022)
Division:GENERAL DIVISION
File Number(s): 2019/2635
Re:Mr Darryl Shane Percival
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Deputy President Dr P McDermott RFD
Date:4 November 2022
Place:Brisbane

Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), I vary the reviewable decision dated 15 March 2019, to determine that, the applicant suffered from PTSD from the date of his claim and that liability for compensation for incapacity and treatment was correctly accepted on 23 January 2017, and that such liability ceased on
7 October 2020 as a result of the applicant’s condition having resolved by this date.
.............................[SGD]...........................................
Deputy President Dr P McDermott RFD
Catchwords
COMPENSATION – Post traumatic stress disorder – Injury – Disease – Applicant diagnosed with Post traumatic stress disorder caused by workplace exposure – Cease effects determination amended to reflect previous diagnoses of condition - Post traumatic stress disorder under remission – No further liability for compensation and treatment – Where decision under review varied
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Moon and Telstra Corporation [2006] AATA 996
Prica and Comcare [1996] AATA 218
Smith and Comcare [2002] AATA 249
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
4 November 2022
INTRODUCTION

This application concerns an application for review by Mr Darryl Shane Percival (‘the applicant’) of a decision of the respondent, dated 15 March 2019 to cease liability under s16 and s19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) for the accepted condition of posttraumatic stress disorder (‘PTSD’), with a date of effect from 24 January 2019.
Background
In October 2005, the applicant commenced employment at the Department of Customs and Border Protection (now named Department of Home Affairs) (‘the Department’) as a Level 1 Border Force Officer at the Brisbane International Airport.[1] The applicant was employed on a part time basis (‘MIPT’). In 2006 the applicant completed training in examining objectionable material (‘Reg4A examinations’).[2] By June 2007, the applicant was working full time hours in the Brisbane International Mail Facility.[3] The applicant’s duties in this role included Reg4A examinations.[4]
[1] Exhibit A, Joint Hearing Bundle, A3; R3.
[2] Exhibit A, Joint Hearing Bundle, A3; R3.
[3] Exhibit A, Joint Hearing Bundle, A3; R3.
[4] Exhibit A, Joint Hearing Bundle, A3; R3.
The applicant underwent a re-certification process to continue to be able to perform Reg4A examinations in late 2010.[5] During this re-certification process the applicant remarked that he identified he was ‘exhibiting the signs of psychological trauma’ as outlined in the re-certification process.[6] This resulted in the applicant withdrawing from the re-certification process and saw him further withdraw from performing Reg4A examinations.[7] The applicant states that as a result of withdrawing from these duties, he was subjected to bullying from senior officers.[8]
[5] Exhibit A, Joint Hearing Bundle, A3; R3.
[6] Exhibit A, Joint Hearing Bundle, A3.
[7] Exhibit A, Joint Hearing Bundle, A3; R3.

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.

Keep reading for free

Create a free CaseChat account to read Percival and Comcare (Compensation) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] AATA 3728
Decision Date: 4 November 2022

CaseChat Overview and Summary

This matter concerned an application for review by Mr Darryl Shane Percival against a decision by Comcare to cease liability for his accepted condition of post-traumatic stress disorder (PTSD) under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The applicant had commenced employment as a Border Force Officer in 2005 and, through his duties involving the examination of objectionable material, developed PTSD. Comcare's decision to cease liability was to take effect from 24 January 2019.

The Administrative Appeals Tribunal was required to determine whether the applicant's condition of PTSD was a compensable injury under the *SRC Act*, and if so, whether Comcare's decision to cease liability for compensation and treatment from 24 January 2019 was correct. A key issue was whether the applicant's condition had resolved by the date Comcare ceased liability, or by a later date as contended by Comcare. The Tribunal also considered the applicant's diagnoses of major depressive disorder (MDD) and other conditions, and whether these were contributed to or aggravated by his employment.

The Tribunal considered extensive medical evidence, including reports from various psychiatrists and psychologists. While there was a preponderance of opinion supporting the applicant's diagnosis of PTSD, the Tribunal placed significant weight on the contemporaneous assessment of Dr Lovell, a senior psychiatrist, who reported in October 2017 that the applicant had PTSD and was not exaggerating his symptoms. However, the Tribunal also accepted the report of Dr Luke Murphy, which indicated that the applicant's PTSD had resolved. The Tribunal noted that the applicant did not dispute Comcare's contention that his MDD condition was non-compensable.

Ultimately, the Tribunal varied Comcare's decision. It determined that the applicant had suffered from PTSD from the date of his claim and that liability for compensation for incapacity and treatment was correctly accepted on 23 January 2017. However, the Tribunal found that this liability ceased on 7 October 2020, as the applicant's condition had resolved by that date.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This application concerns an application for review by Mr Darryl Shane Percival (‘the applicant’) of a decision of the respondent, dated 15 March 2019 to cease liability under s16 and s19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) for the accepted condition of posttraumatic stress disorder (‘PTSD’), with a date of effect from 24 January 2019. Background In October 2005, the applicant commenced employment at the Department of Customs and Border Protection (now named Department of Home Affairs) (‘the Department’) as a Level 1 Border Force Officer at the Brisbane International Airport.[1] The applicant was employed on a part time basis (‘MIPT’). In 2006 the applicant completed training in examining objectionable material (‘Reg4A examinations’).[2] By June 2007, the applicant was working full time hours in the Brisbane International Mail Facility.[3] The applicant’s duties in this role included Reg4A examinations.[4] [1] Exhibit A, Joint Hearing Bundle, A3; R3. [2] Exhibit A, Joint Hearing Bundle, A3; R3.[3] Exhibit A, Joint Hearing Bundle, A3; R3.[4] Exhibit A, Joint Hearing Bundle, A3; R3. The applicant underwent a re-certification process to continue to be able to perform Reg4A examinations in late 2010.[5] During this re-certification process the applicant remarked that he identified he was ‘exhibiting the signs of psychological trauma’ as outlined in the re-certification process.[6] This resulted in the applicant withdrawing from the re-certification process and saw him further withdraw from performing Reg4A examinations.[7] The applicant states that as a result of withdrawing from these duties, he was subjected to bullying from senior officers.[8] [5] Exhibit A, Joint Hearing Bundle, A3; R3.[6] Exhibit A, Joint Hearing Bundle, A3. [7] Exhibit A, Joint Hearing Bundle, A3; R3. [8] Exhibit A, Joint Hearing Bundle, A3. The applicant was referred to the Department’s Workplace Health and Safety Team with respect to his absences from work. The applicant attributes these absences to his irritable bowel syndrome (‘IBS’), viral infections and depression.[9] [9] Exhibit A, Joint Hearing Bundle, R3. The applicant was transferred to the Brisbane International Airport in July of 2013 and commenced employment as a Level 1 Operational Officer.[10] The applicant worked in this role on a 24-hour, 7 days rotating roster, with an average of 73.5 hours per fortnight.[11] On 24 January 2014, the applicant commenced a graduated return to work programme.[12] [10] Exhibit A, Joint Hearing Bundle, A3; R3.[11] Exhibit A, Joint Hearing Bundle, A3; R3.[12] Exhibit A, Joint Hearing Bundle. R3. On 22 April 2015 the applicant submitted a Workplace Health and Safety incident report. In this report, the applicant stated he has been diagnosed with PTSD stemming from examinations of objectionable material whilst undertaking his employment duties at the International Mail Centre.[13] The applicant stated that he was experiencing invasive memories and flashbacks relating to specific examinations that he performed. The earliest of which occurred in July 2007.[14] [13] Exhibit B, T-Documents, T12. [14] Exhibit A, Joint Hearing Bundle, R3.

Evidence

Evidence Before The Court

In response to a question of whether he had any further recommendations to assist in the management of the applicant’s conditions, Dr Murphy remarked: Mr Percival likes his job and appears to be coping well now that his mental health has improved. The main issue would be to identify future relapses. As discussed above, if there are any significant concerns, it would be best to send him home until he can provide documentation from his treating GP and psychologist saying that he is fit to return to work.[194][194] Exhibit H, Report of Dr Luke Murphy, page 13. Oral evidence of Dr Isailovic – 13 September 2021 Dr Isailovic appeared before the Tribunal on 13 September 2021, via MS Teams, and gave evidence under affirmation.[195] During the respondent’s examination of Dr Isailovic, Dr Isailovic stated:[196] [195] Transcript, page 17. [196] Transcript, pages 17-·She is a member of Forensic Psychiatry though the Royal Australian and New Zealand College of Psychiatrists. ·She did not wish to make any changes to the reports that she had prepared for these proceedings, with the exception of minor grammatical corrections. ·That the applicant met the exposure criteria under DSM-V but not DSM-IV but that the outward expression and reporting of symptoms associated with PTSD were not reported for 5 years which does not match the expected trajectory of a PTSD condition. ·That the applicant presents with: textbook perfect trajectory for major depressive disorder occurring on the background of hypothyroidism, hypogonadism, two conditions strongly associated with major depressive disorder.[197] ·That “all’ the literature states that there is no such thing as delayed course. ·That her main concerns with and reluctance to provide a diagnosis of PTSD is that the applicant’s clinical notes do not indicate that at that time he was suffering from symptoms of PTSD. ·She has extensive experience working with first responders and law enforcements officers who have experienced PTSD as a result of their repeated exposure to abhorrent material. ·That the applicant’s experience with his claimed condition of PTSD does not match what she would expect from that of someone in the applicant’s position suffering from PTSD. [197] Transcript, page 18. Under cross examination by the applicant, Dr Isailovic stated: ·That even if the applicant had repeated exposure beyond 2010, that this exposure would likely not have been significant enough to explain any relapse or regression in his progress. Upon further questioning Dr Isailovic conceded that it is possible that the applicant was exposed to further triggers, but that those symptoms were not present for the five years prior, and they were not. Dr Isailovic contended that as a result, the applicant’s condition could not be diagnosed as PTSD. ·That if she could find anything in the applicant’s file that would meet the minimum requirements, she would have provided the applicant with a diagnosis of PTSD. ·That she believes the practitioners who found the applicant to have PTSD were too narrowly focussing on one aspect, noting in particular the tendency of psychologists to do this. ·In response to a question from the applicant that asked about Dr Isailovic’s comments that it takes more than just reporting symptoms for a diagnosis to be made, and that this is why psychiatrists and psychologists study for many years, because anybody can look up the symptoms online: I don’t say that they are not educated. I just do not know whether they have actually examined the clinical notes. So sometimes – like, I do that all the time when I’m examining people for WorkCover, for example, who doesn’t send me any clinical notes. They just send me the worker with couple of reports. And I diagnose it on the basis of reported symptoms and then I have to backtrack my diagnosis because I have the clinical files that are inconsistent. So that happens in practice. I am not sure that this exactly the case, but I think these doctors could stand in front of the Tribunal and explain their view on the trajectory and whether they had the clinical notes and whether they examined that there were no symptoms of post-traumatic stress disorder reported…[198] [198] Transcript, page 23.·When asked about her report dated 7 February 2020, which claimed there were unusual and inconsistent clinical notes: When people have certified incapacity off work due to depression and mental symptomatology, that’s incompatible of owing the weapon. That is like the first thing we say. Well, you can’t really have a weapon, because you’re at risk to yourself and to others because you’re incapacitated to work because you have these depression and mental symptoms. And then, you know, one presentation one week later, like, ‘I’m actually (indistinct) for that’ – it’s kind of inconsistent.[199] ·When questioned further on the reason for his incapacity to work, and when it was put to her that this absence as a result of modifications needing to have been made to his work area that had not been completed, that she did not have access to the reason, just that he was certified as incapacitated for work, and that it may not be inconsistent dependent upon the reason for absence. ·Explained to the applicant and the Tribunal the difference between delayed expression and delayed onset. ·Disagreed that the applicant’s clinical records demonstrate a history of subsyndromal symptomology. ·That most people recover from PTSD, noting that MDD is a much more disabling disorder than PTSD. ·Confirmed that people can have both MDD and PTSD. [199] Transcript, page 26.Applicant’s Contentions

Decision

Reasons for decision

I also accept the report of Dr Luke Murphy, which states that the condition of PTSD suffered by the applicant had resolved at the time of the report, and that the condition of MDD suffered by the applicant was also in remission. I therefore find that there is no present entitlement to compensation for either treatment, or incapacity under s 16 and s 19 of the SRC Act respectively. DECISION Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), I vary the reviewable decision dated 15 March 2019, to determine that, the applicant suffered from PTSD from the date of his claim and that liability for compensation for incapacity and treatment was correctly accepted on 23 January 2017, and that such liability ceased on 7 October 2020 as a result of the applicant’s condition having resolved by this date.

Ratio Decidendi

Legal Principle Established

The respondent put forward a further alternative contention, which is that as of 7 October 2020, the applicant’s condition had been resolved. Counsel for the respondent, Ms Slack, appropriately put this contention to the applicant, and agreed that should the applicant seek one, an adjournment would be appropriate.[254] [254] Transcript, page 2-7. CONSIDERATION At the outset I would like to thank both the applicant and the respondent for their assistance in this complex matter. The submission of the respondent is that there is no liability for medical expenses and incapacity under sections 16 and 19 of the SRC Act with effect from 24 January 2019. I have read the considerable medical reports which are in evidence. This is a complex case as the applicant has been diagnosed with several conditions including Chronic Fatigue Syndrome, IBS, MDD, PTSD, hypothyroidism, and has suffered from Ross River Fever symptoms. Dr Klug on 19 December 2016 opined that his condition was consistent with MDD and PTSD. The respondent in its statement of facts issues and contentions dated 14 October 2020 contends that the MDD condition of the applicant is non-compensable and that the MDD condition was not contributed to nor aggravated by the employment of the applicant. The applicant in response to this document in his comprehensive statement of facts issues and contentions dated 4 December 2020 does not take issue with the contention that the MDD condition of the applicant is non-compensable. The case of the applicant is based on his claim that he has a PTSD condition, which was contributed to significantly by his employment with the Department. There is in evidence medical opinion that the applicant was fit to return to work by the end of 2016. Dr de Vries in their report dated 30 November 2016 considered that the applicant should be able to return to work in a few weeks. Dr Klug in his report dated 19 December 2016 considered that the applicant could return to pre-injury duties in January 2017. The applicant returned to work in 2017. His return to work was interrupted by events such as financial stress because of payroll difficulties and the passing of two men in their 90s who were father figures to him. There were difficulties at work. He ceased work in July 2017. On 6 October 2017 Dr Lovell considered that the applicant could return to work within two months. It is apparent that the contention of the respondent is not that the employment of the applicant did not make a substantial contribution to the PTSD condition of the applicant on the claimed date of injury of 22 April 2015 but that the applicant did not have a PTSD condition. There is a preponderance of opinion by psychiatrists and psychologists that the applicant had PTSD. That opinion was shared by some senior psychiatrists who were not called as witnesses before the Tribunal. On 6 October 2017, Dr Lovell, a psychiatrist of some seniority, reported that the applicant has PTSD and was not willingly exaggerating his symptoms. I accept this contemporaneous assessment of Dr Lovell and place great weight on the report.