VYRP and Comcare (Compensation)

Case [2018] AATA 3202

VYRP and Comcare (Compensation) [2018] AATA 3202 (25 July 2018)

Division:GENERAL DIVISION

File Number(s):      2016/7005

Re:VYRP  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:25 July 2018

Place:Canberra

The Tribunal has jurisdiction to review Comcare’s 17 November 2016 reconsideration decision in respect of VYRP’s 11 August 2016 compensation claim for a mental health injury on or about 2 December 2013.

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

Mr S. Webb, Member

WORKERS’ COMPENSATION – claim for injury – determination to reject claim affirmed on reconsideration – scope of claim – statutory requirements for claim to be ‘made’ – approved form of claim – requirement for a medical certificate – no approved form of medical certificate – when claim is deemed to be ‘made’ – consideration of documents ancillary to a claim – claim to be construed according to its terms having regard to notice given and relevant ancillary materials – content of claim - temporal considerations – injury claim for onset and worsening of ailment

JURISDICTION – application for review of reconsideration decision – reconsideration decision affirmed primary determination rejecting liability for injury – primary and reconsideration decision makers expressly considered but did not expressly decide all aspects of the claim made - implied decision to refuse earlier date of claimed injury by primary and reconsideration decision makers – Tribunal has jurisdiction to review all aspects of the claim

Legislation

Administrative Appeals Tribunal Act 1975 s 25, 35

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 16, 19, 53, 54, 60, 62, 64

Cases

Abrahams v Comcare [2016] FCA 1829 at [18]

Buhr v Comcare [2007] FCA 575 at [40]-[46]

Comcare v Bromham [2017] FCA 174 at [25]

Comcare v Muir [2016] FCA 346 at [30]

Kennedy v Comcare [2014] FCA 82 at [45]

Lees v Comcare [1999] FCA 753 at [18]

Re Bureau of Meteorology and Comcare and Anor [2015] AATA 267 at [44]

Re Durham and TNT Australia Pty Ltd [2011] AATA 802 at [51]

Sellick v Australian Postal Corporation [2009] FCAFC 146

Smith v Comcare [2013] FCAFC [12], [38]

Smith v Comcare [2015] FCAFC 24 at [57]-[60]

Szabo v Comcare [2012] FCAFC 129 at [33]-[34]

REASONS FOR DECISION

Mr S. Webb, Member

25 July 2018

  1. VYRP claimed compensation for a work-related psychological injury. Comcare refused her claim by primary determination and on reconsideration. Unhappy with this result, VYRP applied for review.

  2. A threshold issue arose at the outset of the hearing concerning the Tribunal’s jurisdiction and the contents and construction of the compensation claim VYRP lodged with her employer on 11 August 2016.

  3. The parties sought a ruling on this point before proceeding further with the hearing. With this I concurred – the scope of matters within jurisdiction conferred upon the Tribunal in a particular case is for it to determine.

  4. For practical reasons relating to the conduct of the hearing, as I explained to the parties, I gave the ruling orally in summary form to be followed by more extensive written reasons.…

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Details
AGLC
VYRP and Comcare (Compensation) [2018] AATA 3202
Case
[2018] AATA 3202
Decision Date

CaseChat Overview and Summary

This matter concerns an appeal by VYRP against a decision by Comcare regarding a claim for compensation for a psychological injury. VYRP, whose identity was protected by orders made under section 35 of the *Administrative Appeals Tribunal Act 1975* due to her employment in the justice system, was employed as a Probation and Parole Officer. She lodged a claim for compensation on 11 August 2016, alleging a psychological injury first experienced on 2 December 2013, stemming from perceived workplace maltreatment. Comcare contended that the claim was not in respect of an injury in 2013 but rather arose from events in 2016, and that the claim was not properly made under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The Administrative Appeals Tribunal (AAT) was required to determine the scope of VYRP's claim and whether it had been validly made.

The central legal issues before the Tribunal were whether VYRP's claim, lodged in August 2016, could be construed to encompass a psychological injury that she alleged first manifested in December 2013, and whether the claim, including any alleged aggravation or recurrence of symptoms in 2016, had substantially complied with the notice and claim requirements of sections 53 and 54 of the SRC Act. Comcare argued that the claim was not properly made in respect of the 2013 period and that the medical documentation provided did not sufficiently establish an injury at that time. VYRP maintained that her claim should be interpreted broadly to include the injurious effects of her employment circumstances from 2013, and that the worsening of her symptoms in 2016 was either an aggravation or a distinct injury covered by her claim.

The Tribunal reasoned that it had jurisdiction to review Comcare's reconsideration decision of 17 November 2016 concerning VYRP's 11 August 2016 compensation claim for a mental health injury. It found that to the extent VYRP's claim extended to include a worsening or recurrence of the ailment she alleged began in 2013, and these matters had been decided by primary and reconsideration decision makers, the Tribunal possessed the jurisdiction and power to determine whether these constituted an 'aggravation' or an 'injury' for the purposes of the SRC Act. The Tribunal noted that the reference to 2003 for seeking medical treatment was an admitted error and intended to be 2013.

Orders

Orders of the court

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Background

Background to the litigation

Furthermore, VYRP requested that her identity should not be revealed. The reason for this relates to her employment in the justice system. Comcare did not object to the request. I am satisfied that the nature of VYRP’s employment, and the reasons she gave for not publicly disclosing her identity, are sufficient to render it appropriate to acede to her request. In consequence, I gave orders under s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). It is for this reason she is referred to as VYRP. BACKGROUND FACTS The following uncontroversial facts are established by the materials before the Tribunal. From 3 November 2008, VYRP was employed as a Probation and Parole Officer at the ASO6 level in the Probation and Parole Section of the Community Corrections Branch (the Branch) of the ACT Department of Justice and Community Safety (the Department). In 2012, VYRP experienced back pain. She obtained treatment and underwent lumbrosacral spinal fusion surgery. This was not related to her employment. At some time in 2013, management in the Branch changed and a new General Manager commenced. She alleges that things did not go well for her thereafter. On 21 October 2013, VYRP was involved in a motor vehicle accident – her car was struck from behind by another vehicle. She sustained a number of injuries in respect of which she claimed compensation. She experienced chronic back pain. These injuries and her motor vehicle accident compensation claim were not related to her employment. VYRP returned to work on modified duties. She alleges that her circumstances at work became more difficult. On 18 August 2014, VYRP commenced a temporary appointment on higher duties at the SOGC level in the Department’s Workforce Development and Training Unit (WTDU). This continued until 17 August 2016. On 11 August 2016, VYRP submitted a claim for compensation in respect of an alleged “psychological” injury.[1] I understand that she completed the claim form online and that this was lodged automatically and electronically with her employer. The employer completed Part 2 of the form and lodged the completed form with Comcare on 5 September 2016.[1] T14. In the claim form, VYRP advised that she first experienced symptoms of the alleged injury on 2 December 2013,[2] and she first sought medical treatment for this on “21/12/2003”.[3] Counsel for VYRP informed me that the reference to 2003 is an error and that this was meant to be 2013 – this will be a matter for evidence at the substantive hearing should anything turn on it.[2] T14 folio 49.[3] Ibid folio 50. It appears that VYRP attached a statement and other documents to the claim form she lodged on 11 August 2016, namely –(a)a letter from Dr Bailey, her treating general practitioner, to her employer dated 9 May 2016 (T7);(b)a medicolegal report by Dr McBurnie, a consultant occupational physician, addressed to VYRP’s employer dated 4 July 2016 (T11);(c)a medical certificate of Dr Bailey dated 22 August 2016 (T20); and(d)an undated statement to which she referred in response to the question What happened and how were you injured? in the claim form (T29).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Furthermore, insofar as VYRP’s claim extends to include a worsening or recurrence of the ailment she says began in 2013, and those matters were squarely decided by primary and reconsideration decision makers, the Tribunal has jurisdiction and power to determine whether these matters amount to an ‘aggravation’ or an ‘injury’ for the purposes of the SRC Act should it be necessary to do so.DECISION The Tribunal has jurisdiction to review Comcare’s 17 November 2016 reconsideration decision in respect of VYRP’s 11 August 2016 compensation claim for a mental health injury on or about 2 December 2013.

Ratio Decidendi

Legal Principle Established

Subsequently, VYRP applied for review.CONSIDERATION VYRP argues that Comcare did not address the central point of her claim – being a claim for a psychological injury in 2013. In her submission the injury under claim arose in the period from October 2013 to August 2014 as a result of perceived maltreatment by a manager in the Community Corrections section where her substantive position was located. She maintains that she informed her employer of difficulties she was encountering in the workplace at the time. She accepts that her symptoms were relieved when she transferred to a different section performing higher duties in August 2014, but they became worse in 2016 when she was required to return to her substantive position. VYRP argues that the claim she made in August 2016 is to be construed broadly and it is sufficient to encompass the injurious effects of circumstances in her employment from 2013. In addition, in her submission, if the worsening of symptoms in 2016 is to be treated as an ‘aggravation’ or a different injury for the purposes of the SRC Act, this too is covered by her claim. VYRP argues that she provided medical certificates and medical reports to her employer and Comcare. In her submission these documents are sufficient to substantially comply with the requirements of s 53 and s 54 of the SRC Act. Furthermore, VYRP asserts that, as Comcare did not squarely address the central element of her compensation claim relating to a work-related psychological ailment arising in 2013, this part of her claim may be deemed to have been refused by the primary and reconsideration decision makers, and it is now squarely before the Tribunal. Comcare maintains that VYRP’s claim was not made in respect of any alleged injury in 2013. Comcare argues that the claim cannot properly be construed in that way even though VYRP expressly refers to dates in December 2013 when she first experienced symptoms and first sought medical treatment for the claimed ailment. In Comcare’s submission the claim arose from events in VYRP employment in 2016. In Comcare’s submission, VYRP did not make a proper claim in respect of an alleged injury in 2013 – any such purported claim was not properly made under s 54 of the SRC Act. Comcare says VYRP failed to give notice of an alleged injury on or about 2 December 2013 under s 53 of the SRC Act. This failing, Comcare argues, should inform proper construction of the claim she made in August 2016. In Comcare’s submission, the medical certificate provided with the claim was not sufficient for the purposes of s 54(2)(b), such that s 54(3) is enlivened. Comcare argues this is because the medical certificate does not set out information specifying the nature of the medical condition (including the date on which it began), the relationship of the condition to the employment, and details of any resulting impairment or incapacity, such as would be necessary to establish an ‘injury’ for the purposes of s 14 of the SRC Act at the particular time.