Waldron and Comcare (Compensation) - [2019] AATA 5455

Waldron and Comcare (Compensation) [2019] AATA 5455 (18 December 2019)
Division:GENERAL DIVISION
File Number(s): 2018/2850
Re:Tony Waldron
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:18 December 2019
Place:Brisbane

The decision under review is affirmed.
........................................................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION – Where lump sum redemption has been paid under section 30 of the Safety, Rehabilitation and Compensation Act 1988 – Where applicant seeks compensation under section 31 – Whether applicant must be totally incapacitated for suitable employment – Where index injury exacerbated by later employment – Whether compensation payable under section 31 in such circumstances – Decision under review affirmed.
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988
CASES
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Taylor and Comcare [2005] AATA 366
Waldron and Comcare [1994] AATA 610
Waldron v Comcare (1995) ALD 471
REASONS FOR DECISION
Deputy President J Sosso
18 December 2019
INTRODUCTION

Mr Tony Waldron (the Applicant) originally sought a review of two decisions of Comcare which were both made on 4 May 2018, namely:
(a)the first (2018/2850), which declined the Applicant’s present entitlement for incapacity payments under ss 19 and 31 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act); and
(b)the second (2018/2851) which declined the Applicant’s claim for permanent impairment and non-economic loss under ss 24 and 27 of the Act.
On 15 May 2019 a Notice of Withdrawal was filed in relation to 2018/2851. Consequently, the only matter before the Tribunal relates to 2018/2850.
The Applicant was born in 1956 and commenced employment as a full-time Police Officer with the Northern Territory Police on 15 May 1978 – Exhibit 3 paras 1, 3.
The Applicant’s time with the Northern Territory Police was marked by instances of confrontations with members of the public including two instances when the Applicant actually became violent towards members of the public. The full accounts of these events are set out at length by Senior Member Muller in Waldron and Comcare [1994] AATA 610 and by Burchett J in Waldron v Comcare (1995) ALD 471 at 472-473.
Despite the turbulence in the Applicant’s Police career, he steadily rose through the ranks until he was promoted to sergeant on 22 October 1984.
On 14 June 1986, whilst on duty, he was involved in a struggle with a person armed with a gun, a machete and a knife. During the course of the struggle, when the Applicant tried to disarm the person, his service firearm discharged and a bullet penetrated his upper left arm.
On 11 July 1986 Comcare accepted liability to compensation for the gunshot wound to the upper left arm – Exhibit 1 T10 p. 18.
It is not contested that the Applicant developed Post Traumatic Stress Disorder (PTSD) as a result of the 14 June 1986 incident - Applicant’s Statement of Issues, Facts and Contentions (ASIFC) para 4 p. 1, Respondent’s Statement of Issues, Facts & Contentions (RSIFC para…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Waldron and Comcare (Compensation)

Details

AGLC: Waldron and Comcare (Compensation) [2019] AATA 5455
Case: [2019] AATA 5455
Decision Date: 18 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between Mr Waldron and Comcare concerning compensation for a psychological injury. Mr Waldron sought further compensation under section 31 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) after having previously received a lump sum redemption payment under section 30 of the Act. The central issue was whether Mr Waldron's condition had worsened due to his original injury, thereby entitling him to additional compensation.

The Tribunal was required to determine several key questions. Firstly, it needed to ascertain whether Mr Waldron's incapacity had worsened since 1995. Secondly, if an increase in incapacity was found, the Tribunal had to identify the cause of this worsening. Thirdly, it was necessary to assess whether Mr Waldron was unable to engage in suitable employment. Finally, the Tribunal had to consider whether any worsening of his incapacity was likely to continue indefinitely. These questions were crucial for determining eligibility for compensation under section 31, particularly in light of the prior lump sum settlement.

The Tribunal's reasoning focused on the causal link between the index injury and any subsequent worsening of Mr Waldron's incapacity. It noted that while Mr Waldron continued to suffer from Post-Traumatic Stress Disorder (PTSD) stemming from his employment, the critical question was whether this condition had worsened specifically due to the original injury, rather than other life events. The Tribunal found that the evidence did not support the proposition that the index injury had led to an increased level of incapacity. It agreed with submissions that a worsening of incapacity must be directly attributable to the index injury for compensation under section 31 to be payable.

Consequently, the Tribunal concluded that Comcare was not liable to pay further compensation to Mr Waldron under section 31 of the Act. The decision under review, which affirmed this position, was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal has before it conflicting opinions on this threshold question.Medical Evidence Dr Caniato was strongly of the opinion that the Applicant’s condition was chronic, that there had been no workplace exacerbations of his underlying PTSD condition and that his level of impairment was unchanged – Exhibit 2 p. 55. Basically, Dr Caniato was of the view that the Applicant’s PTSD had an ongoing predisposition brought about by personality vulnerabilities. Dr Caniato opined that the Applicant’ underlying condition was contributed to by non-workplace factors, including personality problems, childhood trauma, marital breakdown and the death of the Applicant’s mother – Exhibit 2 pp. 56 – 57. In his report of 23 January 2018, Dr Caniato opined that although the Applicant’s condition was chronic he had been able to function at an acceptable level – Exhibit 1 T52 p. 222. When asked by Mr Berger what being able to function at an acceptable level meant, Dr Caniato provided the following answer – Tr. 20 September 2019 p. 6:“For functioning we usually look at a number of aspects that includes work functioning, interpersonal functioning, activities of daily living, financial functioning. So he’s been able to hold down a relationship, he’s been independent of activities of daily living. So he can function independently, he does his own banking, he does his own shopping and finances, so he’s independent financially and in activities of daily living. He’s independent in social activities. So he’s no ended up in hospital, he’s not ended up in prison so from a functional point of view, in terms of how he functions, it would seem to be an acceptable level of functioning, but keeping in mind ‘acceptable’ obviously is a value judgment. But I would perhaps word it that there’s a reasonable level of functioning without obvious impairment, that would probably be better wording.” Dr Caniato was also questioned about the observation in his supplementary report that when reviewing Dr Markou’s notes he was unable to see any change in the Applicant’s impairment or functioning. The following evidence was given by Dr Caniato – Tr. 20 September 2019 p. 7:“Well, let’s say in terms of impairment or functioning from the post-traumatic disorder what we’d look for is the progress of the symptoms. So when one is doing treatment for PTSD one would document the symptoms of PTSD at intervals and then be able to measure whether the symptoms are – you know, how well the symptoms are improving, so how quickly are the – are the flashbacks reducing, how’s the avoidance, how’s the hyperarousal, all the core symptoms and they can be measured in a number of different ways. So in my view of the notes I didn’t see any change in the post-traumatic stress disorder symptoms or any change in the impairment. But keep in mind on re-reading the notes again I’m not really sure that there was any focus on treating the post-traumatic stress disorder symptoms. But certainly I could see no changes in those symptoms, no changes in the severity of those symptoms and no changes in the effect on his functioning from those symptoms.”

Decision

Reasons for decision

It consequently follows that Comcare is not liable, pursuant to s 31 of the Act, to pay further compensation to the Applicant.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The alternative interpretation is not consistent with the operation of ss 30 and 31 and could result in Comcare being required to make payments, as Mr Berger submitted (RWS para 7), every time an employee received a minor pay rise. The Tribunal agrees with the thrust of Mr Berger’s submissions as outlined in RWS para 7. CONSIDERATIONIntroduction It is not contested, as previously mentioned, that the Applicant continues to be afflicted by PTSD which was brought about by his employment with the Northern Territory Police. The Tribunal agrees with Mr Littlejohn’s submission (AWS para 6.1) that the evidence supports the proposition that the symptoms of PTSD have never ceased and continue to impact on the Applicant’s capacity in the workplace. Mr Littlejohn (AWS para 6.2) drew the Tribunal’s attention to the 9 January 2013, 19 March 2016 and 16 January 2018 reports of Dr Markou where he opined that the Applicant was continuing to suffer from the symptoms of PTSD. As will be evident from the discussion below, the Tribunal was impressed with the evidence of Dr Markou, notes that as he has been treating the Applicant over a long period of time, and notes he is in a unique position to provide professional evidence on how his mental health has changed with the passage of time. Mr Littlejohn (RWS 6.3) also drew the Tribunal’s attention to the report of Dr O’Hare and her oral evidence of 18 September 2019 where she also opined that the index (1986) injury continues to contribute to the Applicant’s incapacity and how those symptoms have been reactivated and replayed throughout the Applicant’s subsequent employment. The starting point in this matter is that the Applicant continues to suffer from the symptoms of his employment-caused PTSD. The lump sum payout provided to the Applicant was predicated on the assumption that his PTSD was not a temporary phenomenon but an ailment that would continue to afflict him, possibly for the remaining days of his life. The fact that the Applicant continues to suffer from the symptoms of PTSD is, then, not surprising when viewed from the prism of Comcare having determined to make a lump sum payout on that very assumption. In his summing up, Mr Berger made the following submission – Transcript (Tr. 20 September 2019 p. 31:“The question we say for the Deputy President is: has that level of incapacity worsened not because of matters related to the DIPL or marriage breakups or anything but has it worsened simply because of or has it resulted from the index injury? If the index injury has led to a worsening in the level of incapacity the terms of section 31 are met. If the index injury has not resulted in an increased level of incapacity, then we submit it’s not.” The Tribunal agrees with Mr Berger’s summation of the task required for the resolution of this matter. Mr Berger then submitted (Tr. 20 September p. 32) that the issues that the Tribunal had to resolve were as follows:(a)has there been a worsening of the Applicant’s incapacity since 1995?;(b)if yes, what is the cause of the worsening?;(c)is the Applicant not able to engage in suitable employment?; and(d)is the worsening of the incapacity likely to continue indefinitely?