[2014] AATA 381
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3127
Re
Ulla-Maija Dunkerley
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 18 June 2014 Place Canberra The decision under review is affirmed.
...........................[sgd].............................................
Mr S. Webb, Member
COMPENSATION – accepted psychological injury – subsequent aggravation injury claim rejected – cessation of entitlement to compensation for incapacity for work and medical treatment – incapacity for work not as a result of accepted injury – medical treatment not obtained in relation to accepted injury – decision affirmed
Safety, Rehabilitation and Compensation Act 1988, s 4, 5A, 5B, 7, 14, 16, 19
Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] 221 CLR 568
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452O’Grady v Northern Queensland Co Ltd [1990] HCA 16
REASONS FOR DECISION
Mr S. Webb, Member
18 June 2014
Ulla-Maija Dunkerley suffered a psychiatric ailment in the course of her former employment by the Department of Education, Science and Training. She claimed compensation. Comcare decided to reject the claim. Ultimately, in the context of proceedings before the Tribunal, Comcare changed its position and accepted liability for an Adjustment Disorder with anxious mood, and the Tribunal issued a consent decision to that effect.
Some months later, Ms Dunkerley lodged a further claim for compensation, asserting that events in her employment by the Department of Innovation, Industry, Science and Research aggravated her psychiatric condition. Comcare determined to reject her claim. That decision was upheld on review by the Tribunal (differently constituted): Re Dunkerley and Comcare [2010] AATA 915 (Dunkerley and Comcare). Ms Dunkerley’s appeals against this decision were not successful: Dunkerley v Administrative Appeals Tribunal [2012] FCA 41 and Dunkerley v Comcare [2012] FCAFC 132.
Subsequently, after much time had passed, Comcare decided that Ms Dunkerley is not entitled to compensation for medical treatment expenses and incapacity for work as a result of her accepted Adjustment Disorder injury. Ms Dunkerley applied for review.
The brief facts
It is not necessary to recite the factual findings of the Tribunal in Dunkerley and Comcare at [10] to [22]. For present purposes it is sufficient to record that Ms Dunkerley suffered a mental illness in 2007 that was significantly contributed to by her perceptions of bullying and harassment at work, particularly involving her then supervisor Ms Liz Vishner. Ms Dunkerley ‘self-medicated’ with alcohol, consuming large volumes of alcohol on a daily basis. Her mental illness resulted in incapacity for work, but this remitted over time and with treatment. She successfully undertook further tertiary education and resisted being made redundant by her employer. In January 2009 she returned to full-time work in a different Department.
On 2 March 2009, Ms Dunkerley was examined by Dr Graham George, a consultant psychiatrist, who produced a report on 10 March 2009. It was Dr George’s opinion that “Ms Dunkerley presents without a psychiatric diagnosis”, although “she continues to drink…
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CaseChat Overview and Summary
The central legal issue before the court was whether Ms Dunkerley's medical treatment and incapacity for work from July 2009 onwards were a consequence of her 2007 Adjustment Disorder injury. The court had to consider whether Ms Dunkerley's ongoing mental health issues and subsequent treatment were causally linked to her 2007 injury, or if they were due to other factors, such as the stress from her unsuccessful application for promotion. Additionally, the court needed to assess whether the medical treatment Ms Dunkerley received post-March 2009 was related to her 2007 injury.
The court found that Dr. George's report indicated Ms Dunkerley did not suffer from a psychiatric disorder as of March 2009 and did not require further treatment for her 2007 injury. The court was satisfied that the medical treatment Ms Dunkerley obtained from July 2009 onwards was not related to her 2007 injury, and therefore, she was not entitled to compensation under the relevant sections of the Act. Furthermore, the incapacity for work Ms Dunkerley experienced from July 2009 was not attributable to her 2007 injury. The court affirmed the decision of Comcare, concluding that Ms Dunkerley was not entitled to compensation for the medical treatment and incapacity for work she experienced from July 2009.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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