Perkins and Comcare (Compensation)

Case [2018] AATA 3010

Perkins and Comcare (Compensation) [2018] AATA 3010 (8 August 2018)

Division:GENERAL DIVISION

File Numbers:2016/3726; 2016/3727; 2016/3728; 2016/3729         

Re:Danny Perkins

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Member Dr P Wilkins

Date:8 August 2018

Place:Canberra

The Tribunal:

(a)sets aside the decisions under review in Applications 2016/3726 and 2016/3727 and remits each matter to Comcare to give effect to the findings of the Tribunal as set out in the reasons to this decision;

(b)sets aside the decision under review in Applications 2016/3728 and remits the matter to give effect to the findings of the Tribunal as set out in the reasons to this decision; and

(c)affirms the decision under review in Application 2016/3729

........................................................................

Deputy President J Sosso

Catchwords

COMPENSATION – adjustment disorder – whether Applicant is still suffering from the accepted compensable condition – whether an ailment or an aggravation thereof was contributed to, to, to a significant degree, by an employee’s employment – does the disease require medical treatment that is reasonable in the circumstances – is it reasonable for the Applicant to continue to be treated in Canberra – does the disease result in incapacity for work – does the disease result in permanent impairment – decision under review covering ss 16 and 19 set aside – decision under review concerning s 24 affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Abrahams v Comcare [2006] FCA 1829
Comcare v Holt [2007] FCA 405; 94 ALD 576
Comcare v Mooi (1996) 69 FCR 439
Comcare v Filla (2002) 115 FCR 163
Comcare v O’Brien (1997) 49 ALD 293
Comcare v Rope [2004] FCA 540; 135 FCR 443
Dojcinoski v Aleksovski [2015] ACTSC 357
Dow v Elbarby [2018] ACTSC 418
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Filla v Comcare (2001) 115 FCR 144
Halliday and Comcare (1994) 19 AAR 431
Hargreaves and Telstra Corporation Limited [2013] AATA 579
Howes v Comcare [2016] FCA 1521
Kennon v Spry (2008) 238 CLR 366
Madden and Australian Postal Corporation [2008] AATA 411
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
O’Maley and Comcare (1997) 48 ALD 300
Pembshaw and Comcare [2000] AATA 52; (2000) 60 ALD 279
Prain v Comcare [2017] FCAFC 143
Reilly and Military Rehabilitation and Compensation Commission [2007] AATA 1826
Ringshaug and Comcare [2016] AATA 88
Sheehan and Comcare [2017] AATA 2777
Stevens and Comcare [1995] AATA 310
Stevens and Comcare [1997] AATA 208
Taylor and Comcare [2017] AATA 1327
Telstra Corp Ltd v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

Deputy President J Sosso

Member Dr P Wilkins

8 August 2018

INTRODUCTION

  1. Mr Danny Perkins (“the Applicant”) seeks a review of a decision of Comcare of 1 July 2016, which affirmed four earlier determinations:

    (a)30 May 2016, that the Applicant had no present entitlement to compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”);

    (b)

    30 May 2016, that the Applicant had…

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AGLC
Perkins and Comcare (Compensation) [2018] AATA 3010
Case
[2018] AATA 3010
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against decisions made by Comcare regarding his entitlement to compensation for an adjustment disorder. The dispute centred on whether the Applicant was still suffering from the accepted compensable condition, whether the condition required ongoing reasonable medical treatment, whether it resulted in incapacity for work or permanent impairment, and whether his employment had contributed to the ailment to a significant degree. The case was heard by Deputy J Sosso P.

The legal issues before the court were whether the Applicant continued to suffer from his accepted adjustment disorder, whether the condition necessitated medical treatment that was reasonable in the circumstances, and whether the disorder resulted in an incapacity for work or permanent impairment. The court was also required to consider if the ailment or its aggravation was contributed to by the Applicant's employment to a significant degree, and whether it was reasonable for the Applicant to continue receiving treatment in Canberra.

The court's reasoning involved an assessment of the duration of the impairment, the likelihood of improvement, and whether the Applicant had undertaken all reasonable rehabilitative treatment. The court noted that the Applicant had suffered from his condition for over seven years, and despite initial opinions that it would resolve quickly, it had not. Divergent medical prognoses were considered, with some experts suggesting an "industrial solution" rather than medical treatment was required, and others highlighting the Applicant's personality traits as exacerbating his condition. The court found that the Applicant's ongoing anger and resentment, as noted by several medical professionals, did not assist his recovery.

Ultimately, the Tribunal affirmed the decision that the Applicant had no entitlement to permanent impairment compensation in respect of his accepted condition. However, the Tribunal set aside decisions under review in Applications 2016/3726, 2016/3727, and 2016/3728, remitting these matters to Comcare to give effect to the Tribunal's findings. The decision under review in Application 2016/3729 was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

A hearing was convened in Canberra between 26 – 28 March 2018. The Applicant was represented by Mr L T Grey of Counsel and the Respondent was represented by Mr C Clark of Counsel. The Applicant appeared in person and gave evidence. In addition, evidence was given by Dr Tshibangu, Mr Calear, Dr Whiting, Ms Majella Parr, Dr Knox and Dr Samuell.FACTUAL BACKGROUND Mr Grey prepared a very helpful Chronology, which is set out in Attachment A to the Applicant’s Written Submissions. Unless otherwise indicated, the material set out below is based on Mr Grey’s Chronology. The Applicant was born in 1970 and grew up in Wagga Wagga. At the time of the hearing he was 47 years of age – Exhibit 1 T8A p. 59. After leaving school he worked in a variety of jobs including plastic fabrication, carpet laying, concreting, carpentry, steel fabrication and as a heavy vehicle motor mechanic – Exhibit 2 pp. 141-142. He completed a Certificate in heavy vehicle motor mechanics at Wagga Wagga TAFE – Exhibit 1 T8A p. 59. During 1993 -1994, he worked as a Custodial Officer Grade 1 for Australian Correctional Management, New South Wales. In 1994 the Applicant commenced working with ACTCS. On 19 June 1997, the Applicant was medically examined prior to an appointment of employment. In response to a number of questions relating to intellectual/psychological issues, the Applicant answered in the negative in each case – Exhibit 2 p. 78. The Doctor assessed the Applicant’s psychological/intellectual condition as “satisfactory” – Exhibit 2 p. 79, the examining medical officer affirmed that the Applicant had met the medical standard and was fit for appointment – Exhibit 2 p. 80. A probationary report was prepared three months after the Applicant commenced duties in his new position (20 October 1997). In response to the question as to how the Applicant worked with fellow officers, the supervisor noted – Exhibit 2 p. 85:“Mr Perkins fits in well with other officers, he is a valued team member and his influence on the behaviour of other officers is always of a positive nature.” As to the Applicant’s then general behaviour, the supervisor said – Exhibit 2 p. 85:“Mr Perkins behaviour in and around the centre conforms to the standard required.” The supervisor also had a positive view about the Applicant’s application to work and drive and energy – Exhibit 2 p.86:“Mr Perkins is self-motivated, completes all tasks assigned and requires minimal supervision whilst performing his daily duties…Mr Perkins is enthusiastic in his approach to his work, he is willing to undertake any tasks set for him whether they be difficult or routine in nature, he is keen to expand on his job knowledge and this allows him to perform his duties to a high standard.” The supervisor’s overall assessment was positive – Exhibit 2 p.88:“Overall I would rate Mr Perkins as above average in all aspects of his duties.” In a further probationer report prepared on 10 July 1998, the Applicant’s supervisor (Mr Gordon Collins, Custodial Officer Grade 3) recommended that the Applicant’s appointment be confirmed - Exhibit 2 pp. 90 – 95.

Evidence

Evidence Before The Court

It is important now, to set out the various medical assessments of the Applicant, commencing with that of Mr Calear and then of the various psychiatrists who have examined him from 2011 onwards.MEDICAL EVIDENCEIntroduction The Tribunal was presented with extensive medical evidence, consisting of numerous reports prepared by professionals who examined and assessed the Applicant in the period 2011 – 2016. Extracts from various reports are set out below. The extracts relate mostly to the assessments of the Applicant by various psychiatrists. During all of this period, the Applicant was also being treated by his psychologist, Mr Calear, and at least two GPs, Drs Khan and Tshibangu. A perusal of these reports highlights a number of trends in the Applicant’s mental health over the period 2011 – 2016. One important factor in monitoring the state of the Applicant’s mental health during this period was the state of his family life. The period leading up to and following the breakup of his marriage, was, understandably, distressing and unsettling for the Applicant. The impact of the slow but inexorable marital breakup is mirrored in the various diagnoses of the Applicant’s mental health. Conversely, when the Applicant commenced a new relationship with Ms Parr, his mental health improved. It is relevant to note that when Dr Samuell assessed the Applicant, he had been in a relationship with Ms Parr for five months and was living with her – Exhibit 1 T58 p. 398.Dr Inglis Synnott, Consultant Psychiatrist: report 22 November 2011 Dr Synnott assessed the Applicant on 22 November 2011, after being referred to him by the ACT Department of Justice & Community Safety for a psychiatric assessment. The report of Dr Synnott is lengthy and he comprehensively outlines the Applicant’s presenting complaints, current status, lifestyle, current medical treatment, personal history and mental state examination. In the summary and assessment section of the report, Dr Synnott made the following observations – Exhibit 1 T8B pp.70 - 71:“According to Mr Perkins, from the time of his arrival in the mid nineties at ACT ‘Justice and Community Safety’, he has experienced psychological symptoms of significance – and he attributed it to the ‘culture of the place’ where he worked, and particularly his dissatisfaction with the managers at work and their poor training and lack of support for the staff; as well, he more recently had become increasingly dissatisfied with the inmates and their ‘constant whinging’ and demands that their rights and privileges be met…In the five months off work, if anything his psychological state has deteriorated – ‘having time to think about the situation’ has not been of benefit; he wants to find alternative work but has been unable to do so…I note he has an ‘arachnoid cyst in the left temporal lobe’ – that will need to be investigated by those [who] are experts in this area, and particularly a neuropsychological assessment could be worthwhile, to exclude an organic basis to his current psychological symptoms (particularly in his cognitive capabilities and capacity to control his frustration and anger). However, given the duration of his reported problems, the cyst may prove to be an incidental finding.In my opinion, he described sufficient psychological symptoms to meet the diagnostic criteria of an adjustment disorder…In my opinion, a psychiatric diagnosis is an incomplete and simplistic conceptualisation of the situation – it does not explain the totality of his presentation, and the extent of the difficulties he describes. He describes frustration and dissatisfaction with his workplace – and a sense of emotional volatility, and he has no motivation to return to his pre-injury duties.In my opinion, being off work has been counterproductive and of no benefit – and there is no psychiatric reason for this to be the case; it is an accepted strategy and a widely recognised paradigm that in situations like this, people should be returned to the workforce as soon as possible – albeit (in his case) in a different type of job or an alternative workplace. In my opinion, the sooner he can get back to work the better – but not in his pre-injury duties: it would be in alternative duties – such as filing with his pre-injury employer or a completely different job away from his current employer. He may benefit from the assistance of a rehabilitation provider in finding an appropriate job for him.In my opinion, psychological and psychiatric treatment will be of no significant benefit – and it is important not to overly ‘medicalise’ the situation; it is an industrial problem and will require an industrial solution – he should not look to psychological or psychiatric treatment to solve the problem, and he has to be central in any solution. To a large degree, it will be determined by his motivations and priorities – the outcome will be beyond the reach of the medical profession.In my opinion, in itself the adjustment disorder does not prevent participation in employment; it is his particular mindset, his frustration and dissatisfaction with his pre-injury workplace that will be significant obstacles – and may well result in unacceptable and inappropriate behaviour on his part if he returns to work in the pre-injury area. His comments about his volatility and not being able to control himself in the workplace may prove to be a self-fulfilling prophecy – the very things he predicts could come to pass. There will be no successful return to his pre-injury duties.”Dr David Gorman, Consultant General Physician, Pain Management Specialist and Medical Oncologist: reports 26 and 30 November 2011

Decision

Reasons for decision

Accordingly, we affirm the determination that the Applicant has no entitlement to permanent impairment compensation in respect of his accepted condition.DECISION The Tribunal:(a)sets aside decisions under review in Applications 2016/3726 and 2016/3727 and remits each matter to Comcare to give effect to the findings of the Tribunal as set out in the reasons herein;(b)sets aside the decision under in Application 2016/3728 and remits the matter to give effect to the findings of the Tribunal as set out in the reasons herein; and(c)affirms the decision under review in Application 2016/3729.

Ratio Decidendi

Legal Principle Established

The Tribunal is required by s 24(2), when determining if an impairment is permanent, to have regard to:(a) the duration of the impairment;(b) the likelihood of improvement in the employee’s condition;(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and (d) any other relevant matters.Duration of the Impairment – s 24(2)(a) In this matter, the Applicant has suffered from his compensable condition since 2011, or for more than seven years. Even though it was first opined that his condition would resolve within a relatively short period of time, subsequent events have illustrated that the Applicant’s adjustment disorder has not resolved as it is of longer term duration than first diagnosed.Likelihood of Improvement – s 24(2)(b) Assessing the likelihood of improvement of persons suffering from mental ailments, can be problematic, particularly when the medical experts provide divergent prognoses. Dr Synnott opined in November 2011, that psychological and psychiatric treatment would be of no significant benefit to the Applicant, and that an industrial rather than a medical solution was required. He stated that a psychiatric diagnosis would be an incomplete and simplistic conceptualisation of the situation, and went on to emphasise aspects of the Applicant’s personality being key to properly understanding the situation. Importantly, Dr Synnott stated that the Applicant would never be able to successfully return to his pre-injury duties, and that there was a risk of the Applicant’s negativity becoming a “self-fulfilling prophecy” – Exhibit 1 T8B pp. 70 – 71. Dr Lean’s assessment in September 2012 was more optimistic. He opined that the Applicant’s recovery “is realistically expected to take some time, probably through 2012 into 2013.” In short, Dr Lean was firmly of the view that the Applicant’s ailment was likely to resolve within twelve months, and was certainly not permanent. Dr Farnbach, like Dr Synnott, referred in his report of October 2012 to aspects of the Applicant’s personality, which exacerbated his ailment. He referred to the Applicant’s “angry ruminations about his circumstances” and him “falling into a pattern of involution”. Consequently he “has unfortunately therefore fallen into a pattern of behaviour which is acting to exacerbate and perpetuate his disability”. Dr Farnbach also diagnosed an industrial solution and then opined – Exhibit 1T22 p. 275:“With a return to full-time appropriate work I expect Mr Perkins’ symptomatology to resolve extremely quickly (within four weeks)”. Again, Dr Farnbach diagnosed a quick resolution of the Applicant’s accepted condition, but warned of the dangers of his personality perpetuating his ailment. He was also of the clear opinion that his accepted condition was not of permanent duration. Both Drs Hundertmark (Exhibit 1 T26 pp. 289 – 295) and Shaikh (Exhibit 1 T42 pp. 339 – 350) referred to the Applicant’s low mood, prominent anger towards ACTCS and hostility to rehabilitation. Both Doctors thought the Applicant’s prognosis was only fair, with Dr Shaik observing “the ongoing anger and resentment do not help him to move forward” - Exhibit 1 T42 p. 346