Plumb v Comcare

Case [2004] AATA 999

Prain and Comcare (Compensation) [2016] AATA 459 (30 June 2016)

Division

GENERAL DIVISION

File Number(s)

2013/6326 and 2015/4151

Re

Elizabeth Prain

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President Gary Humphries
Date 30 June 2016  
Place Canberra

The decisions under review are affirmed.

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

Deputy President Gary Humphries

Catchwords

COMPENSATION – Commonwealth employee – whether injury or disease – whether applicant continues to suffer from condition – decisions under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16, 19, 24, 27

Cases

Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173

Comcare v Canute (2005) 148 FCR 232

Comcare v Mooi (1996) 69 FCR 439

Comcare v Power [2015] FCA 1502

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

Plumb and Comcare [2004] AATA 999

Treloar v Australian Telecommunication Commission (1990) 26 FCR 316

REASONS FOR DECISION

Deputy President Gary Humphries

30 June 2016

  1. Mrs Elizabeth (Jane) Prain has spent a lifetime in nursing, training as a nurse after leaving school and rising to senior positions within the Australian public hospital system. She oversaw the commissioning of the Liverpool Hospital in 2010, and moved to Canberra in early 2011 to take up a position as a Senior Project Officer for the medical records system at the Canberra Hospital.

  2. That move, however, brought her career in nursing to a disastrous and premature end. After what appeared to be an auspicious start, within a few weeks she encountered animosity and criticism from her supervisor and others at the hospital. She was told that she was bombastic and rude[1] and that her work was substandard. She says she was shunned by her co-workers. These sudden, unexpected developments distressed her, and a pre-existing condition of fibromyalgia (which can be aggravated by stress) flared up. She ceased work on 19 April 2011, and has not worked since. She reported intense sadness, worry, tearfulness and weight fluctuation as symptoms of the condition she suffered arising from the events at the Canberra Hospital.

    [1] Transcript at p 15.

  3. Mrs Prain has brought a number of claims for compensation arising from, or connected with, the events at the Canberra Hospital in 2011. A number of these claims were accepted by Comcare, either initially or through consent decisions in the Tribunal; these included:

    ·adjustment reaction with mixed emotional features

    ·aggravation of fibromyalgia, later redefined as aggravation of myalgia and myositis, unspecified.

  4. On 29 July 2013 Mrs Prain lodged a compensation claim for permanent impairment and non-economic loss under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of the accepted condition of adjustment reaction with mixed emotional features. In a decision dated 13 September 2013 (and affirmed on 27 November 2013) Comcare denied liability for this claim. In her application 2013/6326 Mrs Prain seeks to have this decision…

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Details
AGLC
Plumb v Comcare [2016] AATA 459
Case
[2004] AATA 999
Decision Date

CaseChat Overview and Summary

In the case of Plumb v Comcare, the Federal Court of Australia reviewed the decisions of the Administrative Appeals Tribunal (AAT) regarding the applicant's entitlement to compensation for a disease or injury sustained during employment. The applicant, Mrs Prain, claimed that her employment at the Canberra Hospital in 2011 contributed significantly to her ongoing mental health condition, which she alleged was a chronic adjustment disorder with mixed emotional features, anxiety, and depression. The central issue before the court was whether Mrs Prain's condition constituted a disease or an injury under the relevant legislation, and if her employment at the Canberra Hospital continued to contribute significantly to her ailment as of 16 July 2015.

The court addressed the distinction between a psychological injury and a psychological disease, considering the High Court's affirmation of the test established in Kennedy Cleaning. The court found that Mrs Prain's condition did not stem from a sudden and dramatic physiological change but rather from a gradual build-up of hurt and resentment. Consequently, the court determined that her condition was a disease. The court then assessed whether her employment at the Canberra Hospital in 2011 significantly contributed to this disease and whether the work-related factors continued to contribute to her ailment as of mid-2015. The court examined the various factors that Mrs Prain's life had encountered since April 2011, including personal, familial, and health-related stresses, and weighed these against the impact of her employment at the Canberra Hospital.

The court concluded that while Mrs Prain's life had been marked by numerous challenges since April 2011, these factors were not entirely independent of the work-related incidents at the Canberra Hospital. The court accepted that the ongoing impact of those incidents formed a continuous chain of causation, linking them to her present mental health condition. Ultimately, the court found that Mrs Prain's employment at the Canberra Hospital had indeed contributed significantly to her ailment, and this contribution persisted as of 16 July 2015. The court's decision affirmed the AAT's findings and dismissed the applicant's appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In a statement of 12 August 2015, Mrs Prain’s husband notes her erratic sleeping patterns, her propensity to overdo[17] her walking and her loss of pleasure in cooking and entertaining. He writes Jane’s life has changed dramatically for the worse over the last few years since her traumatic experience with the Canberra Hospital[18]. Mr Prain was cross-examined, but professed limited recollection of issues such as the causes of his wife’s sleep deprivation prior to the incidents at Canberra Hospital, the reasons for her leaving employment at Liverpool Hospital and her history of compensation litigation against Comcare. His evidence was very guarded.[17] Statement of Chris Prain, p 1.[18] Statement of Chris Prain, p 2.The medical evidence There were two reports before the Tribunal from Dr John Saboisky, who also gave oral evidence. In a report dated 6 July 2015 he diagnosed Mrs Prain with chronic Adjustment Disorder with mixed emotional features; anxiety and depression[19]. He also opined:There appears to be a very clear worsening of her pain disorder and the development of psychological symptoms as a result of her employment at The Canberra Hospital. In turn this has caused the deterioration of her relationship with her husband developing an interest in another woman [sic]. This has compounded her symptomatology significantly, particularly in recent times.[20] In his testimony, he returned to the question of the respective roles of the incidents at the Canberra Hospital and her relationship issues in the perpetuation of her symptoms:…I think from a common sense point of view, the reason she’s so depressed now has as much to do with the problems in her marriage as to do with what originally triggered it.I think, without talking to her husband, it would be very difficult to be able to make a better judgement of a 50/50 split.[21][19] T-documents of 2015/4151 at p 178.[20] T-documents of 2015/4151 at p 178.[21] Transcript at p 70. He admitted that the basis for his attribution of the deterioration in her relationship with her husband to her employment at the Canberra Hospital was based on what Mrs Prain had told him, and nothing else. He also admitted that there were elements of her medical history before 2011 about which he was unaware when writing his reports, and which could theoretically alter his view about the causes of her present condition. However, in relation to chronic pain and fibromyalgia conditions existing before April 2011 he said:…according to her, whatever psychological and pain issues she had were incredibly increased because of her employment at the Canberra Hospital…[22]…I find it very hard to separate all those things out.[23]He also resisted attempts to delineate chronic pain, marital tension and unresolved Comcare issues as the only, or principal, stressors contributing to her chronic adjustment disorder:Let’s say someone has a motor vehicle accident, and has a fracture in her neck, and then they develop regional pain syndrome because of the radiculopathy down one arm, and then they can’t work, and because they can’t work they can’t finance the house. The wife goes off with the best mate of the husband, the kids start acting out at school et cetera et cetera, a whole compounding of losses. Now, to my way of thinking, that motor vehicle accident started a domino effect, and I would use the same analogy with her based on the history she provided.So it’s in that sense that you say her employment at the Canberra Hospital is a significant contributor to any ongoing adjustment disorder, it’s the sort of first domino in the case?---Well, she hasn’t been able to move forward since that time. She has been on a downward spiral of chronic pain and depression and marital disharmony, and I’m not saying for one minute the Canberra Hospital caused her marital disharmony exclusively, but according to the narrative provided to me, there’s a clear linear relationship, temporal relationship, between those factors.[24][22] Transcript at p 81.[23] Transcript at p 82.[24] Transcript at p 83.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In a report of 21 July 2011, Dr Ross Whittaker detailed conditions Mrs Prain was suffering from prior to April 2011:·fibromyalgia, first diagnosed in September 2010·complications arising from surgery on her feet, including Complex Regional Pain Syndrome·asthma which, with the fibromyalgia, caused her to be off work from May 2010 to January 2011 ·multiple other medical and surgical problemsConsideration As already discussed, the High Court in May has affirmed the continuing relevance of the test for injury posited by Gleeson CJ and Kirby J in Kennedy Cleaning: a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. In relation to the incidents at the Canberra Hospital from 11 to 19 April 2011, the Tribunal considers that there was no single, definable moment or moments during this period when Mrs Prain might be said to have sustained a change or disturbance – of the kind referred to by their Honours in Kennedy Cleaning – amounting to a psychological injury. Her loss of equilibrium seemed to be the outcome of a slow build-up of hurt and resentment rather than of a climactic episode of confrontation or conflict. As such, the Tribunal is satisfied that the condition suffered by Mrs Prain arising from her employment at the Canberra Hospital was a disease, even though the period of its development – some seven days – was relatively short. The Tribunal accepts, applying the test in s 5B of what amounts to a disease, that her employment contributed to a significant degree to the ailment she suffered at that time. Accordingly, in reviewing Comcare’s decision to discontinue her entitlement to compensation, the Tribunal must consider, as at 16 July 2015, (a) whether Mrs Prain continued to suffer an ailment and (b) whether the circumstances of her employment in 2011 were still contributing, to a significant degree, to that ailment. If the answers to both these questions are yes, the Tribunal should then consider whether her employment continues to contribute to a significant degree to her ailment. The evidence suggested that Mrs Prain’s life since April 2011 has been a difficult one, having been buffeted by a series of misfortunes: the incidence of pain, anxiety around the litigation with Comcare, her weight fluctuations, concerns about her husband’s health and fidelity, stresses within her family (including in relation to her daughters, her brother, her parents and her aunt), bad news delivered by a clairvoyant, fears about impending surgery and a car accident. It was Comcare’s submission that these events of the past five years have crowded out what occurred at the Canberra Hospital as the major contributors to the present state of her mental health, that the work-related factors were largely a spent force in her life by the middle of 2015. It was Mrs Prain’s submission that these other events are, in varying degrees, manifestations of her essential, ongoing cause of disability: the disruption to her core values and sense of self-worth occasioned by what occurred at the Canberra Hospital. In this thesis, most of the other post-April 2011 factors are in fact not independent causes but are secondary or derivative from the principal work-related cause. As such, as Mr Anforth framed it, they actually count as being on the work-related side of the balance sheet because of their genesis at the Canberra Hospital. He conceded that those incidents may not have been the proximate cause of any adjustment disorder experienced by Mrs Prain in 2015, but asserted that there was an unbroken chain of causation linking the more recent factors with those work-related incidents.