Teresa Carbone and Comcare

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[2014] AATA 376  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/4686, 2013/3314, 2013/4023,2013/4776, 2014/0795

Re

Teresa Carbone

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

RM Creyke, Senior Member
Date 16 June 2014  
Place Canberra

The decisions under review are affirmed.

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

RM Creyke, Senior Member

Catchwords

COMPENSATION – Commonwealth employee – accepted back condition - whether suffered psychiatric injury secondary to accepted injury - whether suffered aggravation of injury in March 2013 – whether hours of work under return to work program  were reasonable – whether reasonable excuse not to undertake return to work program – whether continues to suffer the effects of compensable injury – whether suffered aggravation of her psychiatric disorder.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) sections 4, 5A, 5B, 14, 36, 37 and Part II, Div 3.

Cases

Casarotto v Australian Postal Corporation (1989) 86 ALR 399

Comcare v Mooi (1996) 69 FCR 439

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

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

Secondary Materials

American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, revised in 2000)

REASONS FOR DECISION

RM Creyke, Senior Member

  1. Ms Teresa Carbone, born 1970, has five claims before the Tribunal.  Ms Carbone has an accepted claim for ‘aggravation of lumbar sprain and sciatica’ (accepted condition) sustained on 30 April 2009.  The claim was accepted on 21 August 2009. Other claims are secondary to, or arise out of that claim.

    Matter 2012/4686

  2. Ms Carbone, on 14 July 2009, had sought compensation for a psychological injury claimed to be secondary to the effects of an aggravation of her accepted condition of lumbar sprain and sciatica.  She claimed the condition was sustained on 30 April 2009 and was first reported to the doctor on 4 May 2009. Comcare decided on 8 November 2011 to deny liability, a decision affirmed by Comcare on 20 March 2012. Ms Carbone sought further review by the Tribunal on 18 December 2012.

    Matter 2013/3314

  3. Ms Carbone had sought compensation for an ‘aggravation of lumbar sprain and sciatica’ in the period 5 March 2013 to 8 March 2013.  The claim was refused, a decision upheld by a reviewable decision dated 22 May 2013. Ms Carbone sought further review by the Tribunal on 10 July 2013.

    Matter 2013/4023

  4. Ms Carbone sought review of a decision, dated 1 September 2011, as to the hours she should work under a graduated return to work plan in the period 19 August 2011 to 30 November 2011.  The reviewable decision, dated 24 November 2011, upheld the original decision as to hours. Ms Carbone sought further review by the Tribunal on 16 August 2013.

    Matter 2013/4776

  5. Ms Carbone sought review of a decision of 15 August 2013 that as at 14 August 2013 denied her compensation for an aggravation of an accepted condition of lumbar sprain and sciatica, under section 14 of the Act on the ground that she no longer suffered from the accepted condition. A…

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Details
Case
[2014] AATA 376
Decision Date

CaseChat Overview and Summary

The applicant, Ms Teresa Carbone, filed a claim against Comcare, the Commonwealth’s workers' compensation insurer, under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The claim pertains to alleged psychiatric injuries secondary to physical injuries sustained in work-related motor vehicle accidents. The dispute hinges on whether Ms Carbone's psychiatric conditions qualify as compensable injuries under the Act. The Administrative Appeals Tribunal (AAT) was tasked with determining whether Ms Carbone suffered a psychiatric injury secondary to her physical injuries and, if so, whether she is entitled to compensation for the injury. The central legal issue was whether Ms Carbone's psychiatric conditions, namely anxiety, depressive, and panic disorders, could be classified as compensable injuries under the Act. Specifically, the Tribunal needed to ascertain whether these conditions were the result of a sudden physiological change or if they were diseases of gradual onset. The Tribunal concluded that Ms Carbone's psychiatric conditions were diseases due to their gradual onset and the lack of evidence indicating a sudden physiological change. The Tribunal determined that while Ms Carbone's employment may have aggravated her pre-existing psychiatric conditions, it did not cause them to develop initially. Consequently, Comcare was not liable for compensation for the aggravation of Ms Carbone's psychiatric conditions.

The Tribunal's decision was based on a detailed analysis of the definitions of 'injury' and 'disease' under the Act and the evidence presented regarding Ms Carbone's medical history. The Tribunal found that the conditions were of a gradual development and thus classified as diseases. It also noted that the conditions had been long-standing and intermittent, fluctuating in intensity, which further supported the classification as diseases rather than injuries. Given these findings, the Tribunal ruled that Ms Carbone was not entitled to compensation for the aggravation of her psychiatric conditions.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal is satisfied that it has jurisdiction to hear all the matters involved in the various claims. A hearing was held in Canberra on 10, 11, 14 and 15 April 2014.Background The background under the first heading chronicles some of the events which are relevant to claims other than Matter 2012/4686. Facts relevant to other matters are dealt with under the specific matter heading. Matter 2012/4686 Ms Carbone has been employed in the Australian Public Service for close to thirty years. At the relevant times, Ms Carbone was an officer at a level equivalent to the Australian Public Service (APS) level 3/4 or 4/5. There was some dispute about the equivalence of her position given the nomenclature for positions used by one of the agencies against which claims are made. Her relevant employment history is that she commenced work with the Australian Customs and Border Protection Service (Customs) on 22 February 2007. She commenced employment with the Department of Immigration and Border Protection (Immigration) on 1 May 2012. These are the two agencies involved in her applications. At times involved in these applications Ms Carbone has also been employed at weekends or after hours with other private sector bodies. Ms Carbone was involved in a motor vehicle accident on 14 June 1996. Although the police report indicated she suffered no injuries in the accident, on 18 June 1996 Ms Carbone and her mother attended a police station to report whiplash injuries. They claimed that the injuries meant they were unable to work and required physiotherapy. Ms Carbone sustained further injuries in motor vehicle accidents in March and May 2008. In the first accident, she sustained low back pain and lateral left leg and foot pain, jaw pain and head tension. In the second accident she sustained neck pain and exacerbation of low back pain, both conditions being present after the first accident. She made claims arising out of these accidents through her motor vehicle insurer. As part of this legal process, an x-ray of her lumbar spine taken on 20 November 2008 showed a scoliosis complex to the left, endplate change and loss of disc space height at L2/3. A CT of her lumbar spine on 19 December 2008 confirmed the scoliosis complex to the left, and also showed anterior endplate spurring and disc height reduction at L2/3 and L3/4 with mild annular disc bulges at these levels. There was also a disc bulge at L4/5. At times relevant to these applications, Ms Carbone was attending two medical practices: the Wattle Street Clinic, from 13 July 2005 until 29 June 2009; and the Ginninderra Medical Centre, from 20 January 2007. On eight occasions between 31 March 2008 and 20 March 2009 she sought medical treatment from the Wattle Street Clinic for back pain due to these accidents. Her then treating practitioner, Dr Libby Goodchild, reported to Ms Carbone’s insurer that Ms Carbone had noticed neck pain, upper and lower back and left leg pain immediately after the motor vehicle accident on 15 March 2008. Dr Goodchild said Ms Carbone’s neck and upper back pain improved but the lower back pain increased. The doctor also said that on 11 April 2008 Ms Carbone had complained of increased back pain as a result of a fire drill at work where she had been required to walk down seven flights of stairs.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The relevant legislation is found in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Relevant provisions are ss 4, 5A, 5B, 6, 7, 14, Part II Div 3. The provisions are detailed in the Consideration section of these reasons. ConsiderationMatter 2012/4686 The issues are whether Ms Carbone:(a)has suffered a psychiatric injury secondary to her physical injuries (Act ss 4, 5A, 5B, 6, 7); and (b)if so, is she entitled to compensation for the injury? (Act s 14). ‘Injury’ is defined in the Act, as relevant, as either a ‘disease’, a ‘mental injury other than a disease’, or an aggravation of such a condition.[1] ‘Disease’ means an ‘ailment’ or an aggravation of an ailment.[2] An ‘ailment’, as relevant, means ‘any mental … disorder, defect or morbid condition’.[3] The definitions are somewhat opaque. [1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 5A.[2] Act s 5B(1). [3] Act s 4(1) – definition of ‘ailment’. Although the definition of an ‘ailment’ refers to a condition either ‘of sudden onset or gradual development’, in broad terms the distinction between an ‘injury’, including a mental injury simpliciter, and a ‘disease’ is that an ‘injury’ is taken to be the result of a sudden physiological change, while a disease is of progressive onset.[4] To meet the test for a mental injury to be a ‘disease’, the condition must also be ‘outside the bounds of normal mental functioning and behaviour’.[5][4] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286.[5] Comcare v Mooi (1996) 69 FCR 439 at 446. The claim, however, was that Ms Carbone’s anxiety, depressive and panic disorders arose secondary to her work-related physical injury. In other words, that employment only aggravated her pre-existing conditions, rather than caused them to develop initially. The evidence is that these conditions are long-standing, intermittent and that they fluctuate in intensity. The Tribunal, therefore, considers whether this affects its findings. An ‘aggravation’ is defined to include ‘acceleration or recurrence’.[6] This has been interpreted to mean that the conditions have been hastened, or made worse, not simply become worse[7] and that the processes involved are due to a significant extent, to employment. [6] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – definition of ‘aggravation’. [7] Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593; Casarotto v Australian Postal Corporation (1989) 86 ALR 399 at 405. Ms Carbone claims that her ‘compensable back/sciatica injury were the only factors that contributed to the exacerbation of my anxiety condition’. Comcare denied liability for an aggravation of Ms Carbone’s psychiatric conditions. Ms Carbone has been diagnosed with various psychiatric conditions. There is no evidence that Ms Carbone’s mental conditions were due to a sudden physiological change. On the evidence the conditions were of gradual onset and they were, accordingly, ‘diseases’.