Renouf and Comcare (Compensation) [2019] AATA 1055 (29 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1785
Re:Raymond John Renouf
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:29 May 2019
Place:Brisbane
The decision under review is affirmed
...............................[SGD].........................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION – benefits and entitlements – Applicant suffering from anxiety disorder/depression – condition initially caused by the Applicant’s employment – whether liability for condition has ceased – Safety Rehabilitation and Compensation Act 1988 (Cth) –– decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)CASES
Carson and Telstra Corporation (2001) 33 AAR 351
Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Commonwealth v Smith (1989) 12 ALD 224
Howes v Comcare [2016] FCA 1521
Jones and Comcare [2013] AATA 334
Kennon v Spry (2008) 238 CLR 366
Kirkpatrick v Commonwealth (1985) 9 FCR 36 at 39
Lees v Comcare [1999] FCA 753
Lord Abinger v Ashton (1878) L.R. 17 Eq 358
Mifsud and Comcare (1994) 33 ALD 376
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Pedersen and Comcare [2016] AATA 449
Prain v Comcare [2017] FCAFC 459
Renouf and Comcare [2004] AATA 525
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
Telstra Corporation Limited v Hannaford (2006)151 FCR 253
Trumpf and Comcare [2008] AATA 1024
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110REASONS FOR DECISION
Deputy President J Sosso
29 May 2019
INTRODUCTION
Mr Raymond John Renouf (the Applicant) was born in 1953 and was employed by the Australian Broadcasting Commission (ABC) in Darwin from April 1995 until March 1998 as a Technical Officer Productions Operations (TOPO). On 24 October 1997 he lodged a claim for compensation in respect of anxiety disorder and depression alleging that this condition was related to his employment, namely a tripled workload and noisy and cramped conditions. The Applicant first sought treatment on 8 September 1997 and denied any prior psychological treatment or injury – Exhibit 2 para 5, Renouf and Comcare [2004] AATA 525 at [1] (Renouf).
On 13 February 1998 Comcare denied liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). The Delegate attributed the Applicant’s psychological conditions to performance issues and personality conflicts. However, on reconsideration, liability was accepted for an adjustment disorder suffered as a result of the Applicant’s increased workload but only for the period between the deemed date of injury and the time the Applicant first sought medical treatment (8 September 1997 – 19 December 1997) – Exhibit 2 para 8.
The Applicant ceased working permanently from 20 March 1998, and on 29 May 1998 lodged a second compensation claim for anxiety and depression as a result of “unbearable pressure” due to “harassment from management”. The…
Continue reading Renouf and Comcare (Compensation)
Sign in free to access the full text
- AGLC
- Renouf and Comcare (Compensation) [2019] AATA 1055
- Case
- [2019] AATA 1055
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were whether the applicant continued to require medical treatment for the accepted injury under section 16 of the *Safety Rehabilitation and Compensation Act 1988* (Cth), and whether the applicant continued to suffer incapacity as a result of that injury under section 19 of the Act. Comcare did not seek to re-open the question of initial liability under section 14.
The Tribunal considered the principle that an employer must take an employee as they find them, meaning that an incapacity caused by psychological symptoms precipitated by a compensable injury is itself compensable, even if the physical effects of the injury resolve. This principle acknowledges that an individual's pre-existing predispositions are relevant to the legal causation of their incapacity. Despite medical opinions suggesting the applicant was over-reacting to events, one consultant psychiatrist opined that the applicant's mental state was directly related to their compensable condition. However, the Tribunal ultimately found that there was no liability to pay compensation under section 19, and consequently, no ongoing work-related permanent impairment under section 24.
The decision under review was affirmed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It is also the case that when considering liability to pay compensation, an employer and its insurer is required to take an employee as it finds him or her. As von Doussa J observed in Commonwealth v Smith (1989) 12 ALD 224 at 226:“Incapacity due to disabling psychological symptoms precipitated by minor physical injury to a person already suffering a neurotic temperament is a well-recognised and unfortunately common phenomenon. If the precipitating injury occurs in compensable circumstances, the incapacity caused by the psychological symptoms is compensable even though the physical effects of the injury may resolve quickly. In such a case the injury is an element which only completes the tale of circumstances which constitutes the cause of the incapacity in the non-legal sense, but in the legal sense it is itself the cause of the incapacity which ‘results’ from it: see Ward v Corrimal-Baalgownie Collieries Pty Ltd (1938) 61 CLR 120 at 130. The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all the predispositions and susceptibilities, whatever they may be: see Mason JA, as he then was in Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29 at 44 whose judgment was upheld by the High Court: (1973) 47 ALJR 236….”CONSIDERATIONIntroduction It is not contested that the sole issues before the Tribunal are whether the Applicant continues to obtain medical treatment in relation to the accepted injury (s 16) and whether the Applicant continues to suffer incapacity as a result of the accepted injury ( s 19). Comcare has not sought to rely on the Full Federal Court decision of Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 and contend that the Tribunal make findings of fact that undercut the factual findings in Renouf thereby re-opening the question of liability under s 14. In reaching a decision on the issues before the Tribunal, consideration must be given to the medical opinions expressed by Dr Markou and Associate Professor Varghese. There are some issues with the opinions of Dr Markou which are dealt with below. However, before dealing with those matters, it is appropriate to outline the progress of the Applicant’s medical condition from the time of the Tribunal Determination of May 2004. Reference will be made to the 2004 reports of Dr McLaren, and the various clinical notes, correspondence and reports of Dr Markou. The clinical notes of Dr Markou are contained in Exhibit 5. As there is no pagination, references to those notes is by reference to the date of the notes in the Exhibit.Applicant’s Medical Condition post May 2004 In July 2004 the Applicant was urgently admitted to hospital because of suicidal ideas and paranoid beliefs regarding the ABC. Dr McLaren, Consultant Psychiatrist, opined that whilst these ideas had a basis in reality, the Applicant was over-reacting to them and that he had no control over his reactions. In addition, Dr McLaren opined that the Applicant’s mental state was directly related to his compensable condition – Exhibit 1 T74 p. 301.