Re Dunkerley and Comcare

Case [2014] AATA 381

[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 452

O’Grady v Northern Queensland Co Ltd [1990] HCA 16

REASONS FOR DECISION

Mr S. Webb, Member

18 June 2014

  1. 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.

  2. 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.

  3. 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

  4. 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.

  5. 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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AGLC
Re Dunkerley and Comcare [2014] AATA 381
Case
[2014] AATA 381
Decision Date

CaseChat Overview and Summary

In the case of Re Dunkerley and Comcare, the applicant, Ms Dunkerley, sought review of a decision by Comcare to deny her compensation for medical treatment expenses and incapacity for work arising from her Adjustment Disorder injury. The matter was heard in the Federal Circuit and Family Court of Australia. The dispute centred on whether Ms Dunkerley was entitled to compensation for medical treatment expenses and incapacity for work that she experienced after March 2009, which Comcare determined was not related to her accepted Adjustment Disorder injury from 2007.

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

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 alcohol on a daily basis”[1] and “She has slight deficits in cognitive function … exhibited by some problems in attention, concentration and short term memory”.[2] Nonetheless, Dr George confirmed that his original diagnosis on 1 February 2008 of a “chronic adjustment disorder and alcohol abuse” was accurate.[1] T31 folio 118.[2] Ibid, folio 119. Ms Dunkerley says that, for a time, she was happy in her employment. She told me that she became increasingly stressed by work pressures and arrangements – she was engaged in arranging a ‘summit’ for the Prime Minister, and she was not co-located with other members of the team. Nonetheless, it appears likely that she performed her duties well. With the encouragement of her then supervisor, Mr Michael Schwager, Ms Dunkerley applied for promotion to an EL1 position within the Department. She was short-listed and interviewed by a selection committee, including Mr Schwager. Her application was not successful. On or about 17 July 2009, Mr Schwager gave her feedback in which it appears that he referred to short-listing Ms Dunkerley for an interview as an act of charity. Whatever words he used, Ms Dunkerley’s mental health was badly affected. On 21 July 2009, she consulted Dr John Sanderson, a general practitioner, who certified that she was unfit for work from 20 July 2009. Subsequently, her treating doctors, primarily Dr Patricia Batchelor, certified that she was unfit to return to work for an extensive period. Dr Batchelor referred Ms Dunkerley to Ms Anna Crichton, a clinical psychologist, for treatment and prescribed Temazapan and an antidepressant medication, Pristiq. On 17 August 2009, 18 December 2009 and 22 March 2010 Comcare determined to extend liability for medical treatments obtained in relation to Ms Dunkerley’s accepted Adjustment Disorder injury. This notwithstanding, on 21 January 2010, Comcare decided that Ms Dunkerley was not entitled to compensation for incapacity from 20 July to 20 November 2009 as a result of her accepted Adjustment Disorder injury. On 3 August 2010, Comcare reconsidered and reversed its three earlier determinations in respect of medical treatment. On 11 August 2010, Ms Dunkerley applied for review of this reconsideration decision, but she subsequently withdrew her application on 23 September 2010.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have carefully considered the written and oral submissions Ms Dunkerley made in these proceedings and at the hearing. I am mindful of the difficulty she faces representing herself, and I have done what I reasonably and properly can to ensure that all aspects of her case were exposed and ventilated. Unfortunately, I am unable to find in her favour.Conclusion and decision Ms Dunkerley’s case is not made out. Dr George reported that, as of 2 March 2009, she did not suffer from an Axis 1 psychiatric disorder. At that time, Ms Dunkerley did not suffer incapacity for work and she did not require further medical treatment for her 2007 injury. On the balance of the present evidence, I am satisfied that the medical treatment Ms Dunkerley obtained on and after 21 July 2009 was not obtained in relation to her 2007 injury. It follows that she is not entitled to compensation under s 16 of the Act on 2 March 2009 or presently. Furthermore, I am satisfied that the incapacity for work Ms Dunkerley experienced after 2 March 2009 does not entitle her to compensation under Division 3 of Part II of the Act. The incapacity for work Ms Dunkerley suffered on and after 20 July 2009 is not attributable to or as a result of her 2007 injury. It follows that the decision under review must be affirmed.

Ratio Decidendi

Legal Principle Established

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