TMPR and Comcare (Compensation)

Case [2019] AATA 2451

TMPR and Comcare (Compensation) [2019] AATA 2451 (8 August 2019)

Division:GENERAL DIVISION

File Number(s):      2017/3479

Re:TMPR

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:8 August 2019

Place:Canberra

The Tribunal sets aside the reviewable decision dated 18 May 2017.

The matter is remitted to the Respondent to quantify the Applicant’s entitlements to compensation, medical treatment expense and incapacity payments for the period 21 March 2017 to the present date in accordance with and in light of these reasons for decision.

The Tribunal orders the Respondent to pay the costs of the proceedings incurred by the Applicant pursuant to section 67(9) of the Safety, Rehabilitation and Compensation Act 1988.

........................................................................

Senior Member Linda Kirk

Catchwords

WORKERS’ COMPENSATION – psychological injury - whether the Applicant continues to suffer the effects of an accepted condition – whether the accepted condition continues to be contributed to in a material degree by the work-related event – whether liability exists to pay compensation for medical expenses and incapacity for work having regard to the statutory test relevant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 - decision under review set aside and remitted

Legislation

Administrative Appeals Tribunal Act 1975

Safety, Rehabilitation and Compensation Act 1988

Cases

Attorney-General’s Department v K[2010] NSWWCCPD 76

Comcare v Canute (2005) 148 FCR 232

Comcare v Power [2015] FCA 1502

Comcare v Sahu-Kahn (2007)156 FCR 536

Dean v Australian Postal Corporation [2010] FCA 680

Dunstan v Comcare [2011] FCAFC 108

Edwards v Secretary, Department of Education and Communities[2016] NSWWCCPD 45

HNGN and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 4096

McDonald v Director-General of Social Security (1984) 1 FCR 354

Peipman and Comcare [2019] AATA 545

Perich and Secretary, Department of Social Services [2018] AATA 963

Prain v Comcare [2017] FCAFC 143

Prowse and Comcare (Compensation) [2019] AATA 411

State Transit Authority of New South Wales v Fritzi Chemler[2007] NSWCA 249

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

Wiegand v Comcare Australia [2002] FCA 1464

Winchester and Comcare [2018] AATA 2146

REASONS FOR DECISION

Senior Member Linda Kirk

8 August 2019

  1. TMPR (‘the Applicant’) was born in 1967. He commenced work with the Department of Veteran Affairs (‘the Agency’) in November 2002.

  2. The Applicant lodged a claim for workers’ compensation for “anxiety and depression” dated 7 February 2005.[1]  The Applicant claimed to have suffered injury as a result of an excessive workload and a breakdown in his relationship with his supervisor, leading to intimidating and harassing behaviour by the supervisor toward him.

    [1] T5.

  3. On 29 June 2005, Comcare (‘the Respondent’) accepted liability for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act') for 'depressive disorder' with a deemed date of injury of 28 July 2004 (‘the accepted condition’).[2]

    [2] T11.

  4. On 16 December 2015, the Respondent issued a Notice of Intention to determine no present entitlement under s 16 of the SRC Act for the Applicant's…

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Details
AGLC
TMPR and Comcare (Compensation) [2019] AATA 2451
Case
[2019] AATA 2451
Decision Date

CaseChat Overview and Summary

This matter concerned an application by TMPR (the Applicant) against Comcare (the Respondent) regarding workers' compensation. The dispute centred on whether the Applicant continued to suffer from an accepted psychological condition and whether this condition was materially contributed to by a work-related event that occurred in July 2004. The Applicant sought compensation for medical expenses and incapacity for work, as provided for under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The decision was made by Linda Kirk SM.

The legal issues before the Tribunal were threefold: first, whether the Applicant was still suffering from the accepted condition as at 21 March 2017 and continuing to the present; second, if so, whether that condition continued to be contributed to in a material degree by the work-related event in July 2004; and third, if both of the preceding questions were answered affirmatively, whether liability existed for the payment of compensation for medical expenses and incapacity for work under the relevant provisions of the SRC Act.

The Tribunal considered evidence relating to the Applicant's personal history, including his schooling and experiences of bullying and a sexual encounter during his youth. The Applicant's statements and cross-examination revealed some discrepancies regarding the duration and nature of schoolyard taunting and bullying. However, the Tribunal ultimately found that as at 21 March 2017 and continuing to the present, the Applicant did suffer from the effects of his accepted condition, reasonably required medical treatment for it, and experienced an incapacity for work as a result.

Consequently, the Tribunal set aside the decision under review. The matter was remitted to the Respondent for the calculation of the Applicant's entitlement to compensation for medical treatment expenses and incapacity payments from 21 March 2017 onwards, in accordance with sections 16 and 19 of the SRC Act. The Respondent was also ordered to pay the Applicant's costs and disbursements for the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues for determination are whether, as at 21 March 2017 to the present date:1)the Applicant continued to suffer from the accepted condition; and if so,2)whether that condition continues to be contributed to in a material degree by the work-related event in July 2004; and if so3)whether liability exists to pay compensation for medical expenses and incapacity for work having regard to the statutory test relevant to sections 16 and 19 of the SRC Act.APPLICANT’S EVIDENCEEarly years and schooling The Applicant was born in Canberra and is the eldest of three boys. He attended Canberra Boy’s Grammar School from Year 8 in 1981 until 1985 when he completed Year 12.[15] He performed well academically, played sports and was heavily involved in the school’s musical activities, including as Head Chorister in the Chapel Choir, Student Organist and pianist for the senior school assembly.[16] He has fond memories of his time at the School. He remains in contact with school friends and still visits the School now and then.[17][15] Exhibit A1, [4].[16] Exhibit A1, [5].[17] Exhibit A1, [9]. In his Statement dated 18 October 2018, the Applicant stated that he was subjected to homophobic slurs from other school students when he was in years 9 and 10. These taunts did not exceed the occasional verbal comment, and he was never physically threatened or attacked. He did not seek counselling, medical support or have significant time out of school because of these taunts.[18] The taunting from other students ceased when he was in year 11.[19][18] Exhibit A1, [6].[19] Exhibit A1, [7]. During cross-examination, the Applicant was asked about a ‘Letter to my 8 year old self’[20] that he wrote during treatment with Dr Victoria Carr, psychologist, dated 23 July 2013.[21] In this letter he stated he first was teased at the end of primary school when he was called a ‘pansy’. He also wrote that he was involved in a physical fight at high school with another student by whom he had been ‘teased mercilessly’. The Applicant conceded that the period over which he was teased and bullied at school was longer than he described in his Statement, and that it did include physical harm.[20] Exhibit R1, 56-57.[21] Exhibit R1, 56. In his Statement, the Applicant stated that during the summer break between 1983 and 1984, he had a sexual experience with a school friend. When he returned to school in 1984 he sought support from and had regular sessions with the school counsellor until the middle of the year. In the second half of 1984 he had a few ‘check in’ sessions with the counsellor. His attendance at school and studies were not affected by this experience, and he did not seek medical advice or take medication.[22][22] Exhibit A1, [8]. In his Statement and his oral evidence, the Applicant said that he ‘came out’ to his mother in about 1986 when he was still living at home and after finishing school. At first she was not happy about his sexuality, but it was ‘not too long’ until she came to accept it and support him.[23][23] Exhibit A1, [10].

Decision

Reasons for decision

The Tribunal finds that as at 21 March 2017 and to date, the Applicant:(a)continues to suffer from the effects of his accepted condition;(b)reasonably requires medical treatment in relation to the accepted condition;(c)suffers an incapacity for work as a result of the accepted condition.[181][181] Applicant’s SFIC, [117]-[119].DECISION The decision under review is set aside, and the matter is remitted to the Respondent for calculation of the Applicant's post 21 March 2017 entitlement to compensation under ss 16 and 19 of the SRC Act.[182][182] Applicant’s SFIC, [115]. The Applicant's claims for medical treatment expenses and incapacity payments from 21 March 2017 in relation to the accepted condition are remitted to the Respondent for calculation under ss 16 and 19 of the SRC Act.[183][183] Applicant’s SFIC, [120]. The Respondent is to pay the Applicant's costs and disbursements of the proceedings pursuant to sub-section 67(9) of the SRC Act.[184][184] Applicant’s SFIC, [121].

Ratio Decidendi

Legal Principle Established

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