TRKG and Comcare (Compensation)

Case [2021] AATA 1923

TRKG and Comcare (Compensation) [2021] AATA 1923 (25 June 2021)

Division:GENERAL DIVISION

File Number:          2018/6861

Re:TRKG

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:25 June 2021

Place:Brisbane

The Tribunal affirms the reviewable decision.

............[SGD].......................................................

Member D K Grigg

Catchwords

COMPENSATION — Commonwealth employees - whether applicant entitled to compensation – correct identification of the medical condition suffered by the applicant - whether applicant made a false and wilful representation – whether compensation excluded by the operation of section 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - decision under review affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147

Collector of Customs v Pozzolanic Enterprises [1993] FCA 456; (1993) 43 FCR 280

Comcare Australia v George Leslie Porter [1996] FCA 562

Commonwealth of Australia v Christoffelsz (1988) 18 FCR 415

Griffiths v Australian Postal Corporation [2018] FCA 520

Iannella v. French[1968] HCA 14; (1968) 119 C.L.R. 84

K&S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518

National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382

Contents

REASONS FOR DECISION

INTRODUCTION & CLAIMS HISTORY

Performance Management

Customer Incident

Compensation Claim

Compensation Claim Investigation

ISSUE FOR DETERMINATION

LEGISLATIVE REQUIREMENTS

Section 7(7) Exclusion from Compensation

When is section 7(7) triggered:

When is a representation made for purposes connected with a person’s employment?

What is a false and wilful representation?

What is meant by the phrase “that disease”?

DID TRKG SUFFER A DISEASE?

MEDICAL EVIDENCE

Medical Evidence prior to the Date of the Customer Incident (16 May 2018)

TABLE A - Medical Evidence (2013 to May 2018)

Medical Evidence of Independent Experts (May 2018 onwards)

Dr Luke Murphy, Psychiatrist

Dr Alistair Macleod, Consultant Psychiatrist

Dr Bradley Ng, Psychiatrist

does section 7(7) of the act apply?

Elements of Section 7(7)

“That disease”

Conclusion on representations

Were TRKG’s representation made wilfully and falsely?

Conclusion

DECISION

REASONS FOR DECISION

Member D K Grigg

25 June 2021

INTRODUCTION & CLAIMS HISTORY

  1. The Applicant, (‘TRKG’), worked as a sessional interpreter for the Department of Human Services (“Centrelink”) between 2013 and 2016.[1] On 17 October 2016[2] TRKG became a Customer Service Officer at the APS 3 classification (“SO3”) at the Stones Corner Centrelink Customer Service Centre (“CSC”).[3]

    [1] Exhibit 6, Joint hearing bundle, A2, page 660, OnCall Letter of Reference dated 4 February 2020.

    [2] Exhibit 3, T Documents, T7A, page 81, Timeline of Events.

    [3] Exhibit 3, T Documents, T5, page 19, TRKG’s Workers’ Compensation Claim Form dated 20 June 2016.

  2. An SO3 employee at Centrelink is expected to have knowledge of, among other things, “payments, programmes and services administered by the department”.[4]

    [4] Exhibit 3, T Documents, T7F, page 111, Job Statement for APS3 Service Officer

    Performance Management

  3. On 22 January 2018, an informal Support Plan was initiated by the Applicant’s managers. The informal support plan set out areas of improvement for TRKG to…

Continue reading TRKG and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
TRKG and Comcare (Compensation) [2021] AATA 1923
Case
[2021] AATA 1923
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by TRKG against a decision by Comcare to deny her claim for compensation. The dispute centred on whether TRKG was entitled to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for a psychological condition, and specifically whether her claimed condition was excluded by the operation of section 7(7) of the Act due to a false and wilful representation about her prior medical history. The Administrative Appeals Tribunal was required to determine the correct diagnosis of TRKG's condition and whether any prior representations she made were false and wilful.

The Tribunal was tasked with determining several key issues. Firstly, it had to ascertain whether TRKG's claimed condition qualified as an "injury" under section 5A of the Act, considering the potential exclusion under section 7(7). Secondly, the Tribunal needed to decide if TRKG suffered from an ailment or an aggravation of an ailment as defined by section 4 of the Act. If an ailment was established, the Tribunal had to consider whether TRKG's employment significantly contributed to it, thereby meeting the definition of "disease" under section 5B. Finally, if a disease was found, the Tribunal had to determine if it was excluded from being a compensable "injury" by the reasonable administrative action exclusionary provision in section 5A(1) of the Act.

In its reasoning, the Tribunal placed significant weight on the medical evidence, particularly the opinion of Dr Ng, an independent medical expert. Dr Ng's assessment, based on a comprehensive review of TRKG's past medical history, clinical observations, and CCTV footage of a relevant incident, led him to conclude that TRKG suffered from major depressive disorder with anxiety, rather than Post-Traumatic Stress Disorder (PTSD). The Tribunal found Dr Ng's diagnosis more reliable than that of Dr Sawhney, TRKG's treating psychiatrist, as Dr Sawhney's diagnosis was based solely on TRKG's self-reporting and he lacked the independent perspective of Dr Ng. The Tribunal found TRKG's repeated denials of prior anxiety and depression to be unconvincing and contrary to her medical records, including a signed mental health plan for "depression and anxiety." This led the Tribunal to conclude that TRKG had made a false and wilful representation regarding her prior condition.

Consequently, the Tribunal affirmed the delegate's decision to deny compensation. The Tribunal found that TRKG suffered from major depressive disorder with anxiety, but this condition was excluded from compensation under section 7(7) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) because she had made a false and wilful representation that she had not previously suffered from this disease. The Tribunal also considered the alternative argument regarding reasonable administrative action, but this was not the primary basis for its decision.

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

Table A is a summary of the medical evidence concerning whether TRKG suffered from any mental health condition or symptoms prior to 16 May 2018.TABLE A - Medical Evidence (2013 to May 2018) TRKG was cross-examined about these medical records. TRKG queried why we needed to go back through old medical records.[54] [54] Transcript dated 23 February 2021, page 42 In relation to the clinical note of 27 March 2013 TRKG initially agreed her history was consistent with anxiety attack and that Dr Chan suggested some management and discussed advice for how to manage her anxiety. She then said “I don’t believe that I did have any anxiety. The anxiety kind of - what is required to go and see somebody to get treatment for it, you know?”[55] TRKG then denied that Dr Chan told her she had been diagnosed with anxiety attacks.[56] TRKG also denied having had an anxiety attack at all and said the symptoms she had experience resulting in her being taken to hospital were due to her having anaemia.[57] This evidence is unconvincing. The record clearly states that TRKG had a history consistent with anxiety attacks. There is no mention by her treating general practitioner that the cause of her anxiety symptoms is, or even could be, related to her anaemia.[55] Ibid, 43.[56] Ibid, 43.[57] Ibid, 43 – 45, 48. During cross-examination TRKG expressly denied having “any anxiety or depression before”. TRKG said she had seen Dr Chan because she wanted to see a psychologist so they could help her find a job.[58] The Tribunal finds this evidence implausible. Psychologists are not career counsellors. The Tribunal considers that TRKG wanted to disguise the real reason for wanting to see a psychologist, that reason being because she was very anxious. TRKG said “I had gone to the psychologist, yes. But that doesn’t mean that I have an anxiety or depression at that time.”[59][58] Ibid, 45.[59] Ibid, 46 TRKG told the Tribunal she did not remember reporting anxiety symptoms to Dr Chan in August 2014.[60][60] Ibid, 47 TRKG did accept that she talked to Dr Chan in February 2015 about anxiety but said this did not mean she had “anxiety”.[61] As the cross-examination of TRKG continued regarding Dr Chan’s clinical records, TRKG suddenly said “I’m not really happy with Dr Chan. I have never [identified] with him. Dr Chan has written stuff. I had no idea about it. He never told me that you have this problem or that problem. Otherwise I would have done something about it. I would have been getting treatment for it.”[62] This was an attempt by TRKG to diminish the weight that should be given to Dr Chan’s records. TRKG’s repeated denial of having anxiety symptoms and having treatment for same is contrary to the medical evidence. It is clear from Dr Chan’s records in April 2015 that he referred TRKG to a psychologist for treatment.[61] Ibid, 48[62] Ibid, 48 In response to the medical notes of 13 April 2015 TRKG again sought to distinguish everyday worries from being clinically anxious. She said “I made it so many times clear. My business with Dr Chan was not that I was seeing him for the disease that I had and that was calling depression or anxiety. I never had this problem. Word ‘anxiety’, if I have used, you know - if I couldn’t sleep for example, it doesn’t mean that I had anxiety. It was my iron.”[63] As previously stated the Tribunal is not satisfied that iron deficiency was the cause of TRKG’s symptoms. If it were, there would have been no need for Dr Chan to refer TRKG to a psychologist. TRKG said Dr Chan never told her she had depression and anxiety.[64] “I never had anxiety. I never had depression before”. If this was the case, there would be no need for a mental health plan and a psychologist referral. It is apparent from the 13 April 2015 record that TRKG knew she was suffering from anxiety and needed professional assistance and care. The Mental Health Plan required TRKG’s signature giving permission for her conditions to be discussed with psychologist Mr Ruddy.[65] TRKG signed the mental health plan which provided that she needed counselling and psychological therapy for “depression and anxiety”[66] When questioned about this TRKG said, “if you’re trying to prove that I have anxiety, I’m not agreeing with you…I don’t have the problem”. [67] Again, TRKG was seeking to distance herself from the medical records. At this point on the hearing TRKG tried to avoid answering any further questions about the medical records and said:“we don’t need to go through this. These documents - if you want to prove that I had anxiety or depression - I’m not agreeing with it because this is not the truth. The truth is that I did not have anxiety and depression before”.[68][63] Ibid, 49[64] Ibid, 52[65] Exhibit 6, Joint Hearing Book, R8, Summonsed Medical Records, Wishart Medical Centre, pages 131, 140. [66] Exhibit 6, Joint Hearing Book, R15, Summonsed Medical Reports, Mr Gabriel Ruddy, page 646.[67] Transcript dated 23 February 2021, page 49.[68] Ibid, 50

Decision

Reasons for decision

A further recommendation was made to affirm the delegate’s decision on 19 September 2018[14] and the decision to deny compensation was affirmed by the authorised delegate on 19 September 2018 (“Reviewable Decision”).[15] [14] Exhibit 3, T Documents, T21-T22, pages 420-435, Recommendation by delegate including reasons dated 19 September 2018.[15] Exhibit 3, T Documents, T23, pages 436-437, Determination by authorised delegate dated 19 September 2018. TRKG then applied for a review of the Reviewable Decision by this Tribunal.[16][16] Exhibit 3, T Documents, T1, pages 1-6, Application for Review of Decision dated 19 November 2018.ISSUE FOR DETERMINATION The issues for determination are whether:(a)whether TRKG’s claimed condition cannot amount to an "injury" for the purposes of s 5A of the Act as a result of the operation of s 7(7) of the Act ?(b)whether TRKG suffers from an ailment, or an aggravation of an ailment as defined in s 4 of the Act?(c)if so, whether that ailment was significantly contributed to by TRKG's employment by Centrelink such that the definition of "disease" in s 5B of the Act is met?(d)if so, is TRKG’s "disease" not an "injury" under s 5A of the SRC Act due to the operation of the reasonable administrative action exclusionary provision? It is not in dispute that TRKG was an “employee” of the Commonwealth.[17][17] Exhibit 2, Respondents Submissions dated 11 February 2020, paragraph 16; section 5, Safety, Rehabilitation and Compensation Act 1988. Comcare’s primary contention is that:[18](a)TRKG suffered from a disease, namely “major depressive disorder with anxiety” (“MDD with anxiety”);[19] and(b)TRKG’s disease is excluded from being a compensable “injury” by the operation of section 7(7) of the Act because for purposes connected with her employment, TRKG made a false and wilful representation that she had not suffered from that disease previously.[18] Exhibit 2, Respondent’s Submissions dated 11 February 2020, pages 14 – 18, paragraphs 110 – 127.[19] Respondent’s Closing Submissions dated 2 June 2021, page 9, paragraph 33. Alternatively, Comcare contends:(a)TRKG suffered from a psychological ailment which was significantly contributed to by her employment by virtue of her underperformance at work and the performance management process implemented to address the purported under performance; (b)The performance management process was as follows (“Performance Management Actions”):(i)it commenced in January 2018 by the institution of an “informal support plan”;(ii)in February 2018 at a mid-cycle review, TRKG was advised by her managers that she was not meeting performance expectations of her role;(iii)TRKG was advised by a supervisor in March 2018 that she would be placed on a “Back on Track” plan; (c)those Performance Management Actions:(i)were “reasonable administrative actions” constituting a reasonable appraisal of TRKG’s performance (see section 5A(2)(a)), and/or a reasonable counselling action (see section 5A(2)(b)) and/or a reasonable action taken in connection with the appraisal/counselling (see section 5A(2)(e)); (ii)were taken in a reasonable manner in respect of her employment; and thattherefore, the exclusionary provision in section 5A(1) of the Act applies.[20] [20] Exhibit 2, Respondent’s Submissions dated 11 February 2020, paragraph 16.

Ratio Decidendi

Legal Principle Established

At the hearing Dr Ng gave evidence via telephone. His evidence was as follows:(a)In forming his opinion, he had considered all the available medical records;(b)After reviewing the medical records TRKG’s denial that she had previously suffered from any psychiatric condition was incorrect and it raises a significant question about her reliability(c)He reviewed the CCTV footage, and it did not appear to be an incident that could be described as a criterion A event (a requirement of a PTSD diagnosis)(d)He was not satisfied that TRKG had PTSD because there was no apparent criterion A event, and her symptoms were indicative of anxiety and depression;(e)Assessing TRKG over a longer period would not change his mind because he has reviewed all the material since the alleged onset of her PTSD, further assessments would not “firm up” the diagnosis;(f)Dr Ng accepted that symptoms of anxiety and depression can fall short of a psychiatric disorder;(g)He used the standard DSM V in making his diagnosis.(h)He referred to witness statements of other employees present at the SCS during the Customer Service Incident and involved in the performance management of TRKG.(i)Dr Ng reviewed the reports of Dr Handrick and Dr Seet of 22 May 2018(j)The symptoms of PTSD often overlap with other disorders such as depression and anxiety; difficult to arrive at a diagnosis of PTSD without a criterion A event;(k)Dr Ng acknowledged there had been reported PTSD symptoms, but he could not confirm TRKG had PTSD based on the evidence available.Consideration - Diagnosis The medical practitioners differ in part in their diagnosis of TRKG’s condition. Dr Ng denies any evidence to support a diagnosis of PTSD, although he accepts there are some PTSD symptomatology following the Customer Incident. Dr Sawhney confirmed that his additional diagnosis of PTSD in June 2018 is still correct. For the reasons which follow the Tribunal prefers Dr Ng’s opinion that the most appropriate diagnosis of TRKG’s condition is major depression disorder with anxiety. Dr Ng’s diagnosis was consistent throughout his reporting, and he did not waiver from this diagnosis during the giving of evidence at the hearing. Dr Ng was an independent medical expert not TRKG’s treating doctor. Unlike Dr Sawhney, Dr Ng had no prior, and would have no future, relationship with TRKG following his diagnosis. Dr Sawhney was TRKG’s treating psychiatrist and had a doctor patient relationship with her which continues to this day – in this respect Dr Sawhney was not “independent”. Dr Sawhney admitted during cross-examination that his diagnosis was made solely on what TRKG told him. By contrast Dr Ng’s diagnosis was made based on a review of all the available records including TRKG’s past medical history, his own clinical assessment of TRKG and his review of the CCTV footage of the Customer Incident. Dr Sawhney had not seen the CCTV footage and relied solely on what TRKG told him during their consultation. During cross-examination Dr Sawhney said he reported what TRKG told him.