Walker and Comcare (Compensation)

Case [2022] AATA 984

Walker and Comcare (Compensation) [2022] AATA 984 (29 April 2022)

Division:GENERAL DIVISION

File Number:          2020/2186

Re:Silvia Walker

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:29 April 2022

Place:Brisbane

The decision under review is set aside, and in its place, it is determined that:

(a)Comcare is liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the Applicant’s mental condition suffered on 16 September 2019; and

(b)the costs of, and incidental to, the application are payable to the Applicant, pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), as agreed or taxed.

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

Deputy President J Sosso

CATCHWORDS

COMPENSATION — Commonwealth employees — whether Applicant suffered from a condition outside the boundaries of normal mental functioning — whether it is necessary to put a label on the ailment — weight to be placed on Applicant’s evidence — whether the Applicant suffers from biological depression — psychiatric history of family members — importance of Applicant’s physical health issues to claimed condition — conflicting expert opinion — claimed ailment contributed to, to a significant degree, by her employment — decision set aside and substituted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

CASES

Australian Postal Corporation v Lucas (1991) 33 FCR 101

Bryant v Military Rehabilitation and Compensation Commission (2008) 173 FCR 184

Comcare v Mooi (1996) 69 FCR 439; 42 ALD 495

Commonwealth v Smith (1989) 18 ALD 224

D’Amico and Comcare [2018] AATA 54

Federal Broom Co. Pty. Ltd. v Semlitch (1964) 110 CLR 626

Hennessey-Milne and Comcare [2018] AATA 4453

HNGN and Military Rehabilitation and Compensation Commission (2018) 162 ALD 606

Lees v Comcare [1999] FCA 753; 56 ALD 84

Lim v Comcare [2016] FCA 709

Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; 150 ALD 392

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

Prain v Comcare (2017) 256 FCR 65

Readv Military Rehabilitation and Compensation Commission [2018] FCA 848, 158 ALD 537

Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120

Weatherburn and Comcare [2019] AATA 4196

Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795

REASONS FOR DECISION

Deputy President J Sosso

29 April 2022

INTRODUCTION

  1. Ms Silvia Walker (the Applicant) has applied to the Administrative Appeals Tribunal (the Tribunal) for review of a decision dated 7 February 2020 (Exhibit 14 T16 pp. 159 – 161) which affirmed a determination dated 13 December 2019 (Exhibit 14 T11 pp. 137 – 146) that denied liability to pay compensation to her under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for Major Depressive Disorder, or aggravation thereof.

  2. The Applicant, at the time of the Hearing, was 64 years of age. She completed High School in New South Wales in 1973…

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Details
AGLC
Walker and Comcare (Compensation) [2022] AATA 984
Case
[2022] AATA 984
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Ms Walker, against a decision by Comcare regarding compensation for a mental condition. The dispute centred on whether the Applicant suffered from an ailment within the meaning of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) and, if so, whether her employment contributed to it to a significant degree. The case was heard by Deputy J Sosso P.

The legal issues before the court were whether the Applicant suffered from a "disease" as defined by the Act, and if so, whether her employment was a significant contributing factor to its onset or aggravation. Comcare conceded that the Applicant was an employee, that certain diagnosed mental health conditions were ailments under the Act, and that an incident occurred in the workplace. Crucially, Comcare also conceded that the Act does not require a formal diagnosis, provided the condition falls outside the boundaries of normal mental functioning, and that the reasonableness of the Applicant's perception of the workplace incident was not determinative of whether it was a significant contributing factor.

Deputy J Sosso P considered conflicting expert medical opinions, noting that Comcare conceded the Applicant suffered from a pre-existing ailment. The Applicant argued that a specific diagnostic label was unnecessary, and that her employment significantly contributed to her condition. The court acknowledged that the Applicant's history, including family psychiatric issues and her own denial of past mental illness, was relevant to assessing her reliability as a historian and potential genetic predispositions. However, the court ultimately found that the Applicant's claimed ailment was contributed to, to a significant degree, by her employment.

Consequently, the decision under review was set aside. The court determined that Comcare was liable to pay compensation under s 14 of the Act in respect of the Applicant's mental condition suffered on 16 September 2019, and ordered that the costs of the application be payable to the Applicant.

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

In the Submissions of the Respondent (SR) dated 31 January 2021, and prepared by Ms Tarrago for Comcare, a number of concessions were made. The Tribunal is grateful for Ms Tarrago’s submissions as they have helped to narrow the issues in contention. Comcare concedes:1)the Applicant was, at all relevant times, an “employee” for the purposes of the Act – SR p. 3 para 11;2)the Applicant was an employee of the Commonwealth – SR p. 3 para 12;3)Major Depressive Disorder, PTSD and Adjustment Disorder with anxious mood are all ailments within the meaning of s 4(1) of the Act – SR p. 3 para 13;4)the Applicant previously suffered from a Major Depressive Disorder and, therefore, suffered from an ailment for the purposes of s 5B(1) of the Act – SR p. 4 para 14;5)an incident occurred in the Applicant’s workplace on 16 September 2019, and does not dispute the Applicant’s evidence that a customer raised his voice at her, was aggressive and called her rude and uneducated – SR p. 4 para 15;6)there is strictly no need for the Tribunal to consider whether the Applicant’s perception of the incident is reasonable, in considering whether it was a significant contributing factor to her ailment or an aggravation of her ailment: Wiegand v Comcare [2002] FCA 1464 at [31] – SR p. 4 para 15;7)the Act does not require a diagnosis, so long as the Applicant suffers from a condition outside the boundaries of normal mental functioning and behaviour: Comcare v Mooi (1996) 69 FCR 439 – SR p. 4 para 16; and8)the Act does not require a diagnosis made in accordance with diagnostic tools such as the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-V) – SR p. 4 para 17.MEDICAL EVIDENCEIntroduction The Tribunal has been presented with written opinions and testimonies from four psychiatrists: Dr Malik, Associate Professor Sashjit Varma, Dr Benjamin Duke and Dr Kar. The Tribunal will consider the reports of each of the Doctors below.Dr Malik As previously noted, in his report of 18 December 2019, Dr Malik diagnosed the Applicant as suffering from PTSD. In making this diagnosis, Dr Malik made the following observations – Exhibit 14 T12 p. 147:“She has four children and one of her sons lives with her as he has ASD/ADHD. She did not have any previous history of mental illness and denied anyone in her family having these problems.” Dr Malik stated that the Applicant reported as having the following ongoing symptoms – Exhibit 14 T12 p. 147:·ongoing upsetting memories and flashbacks of the incident;·feeling physically and psychologically distressed when something reminds her of the incident;·trouble remembering important parts of the incident;·ongoing blame she could have handled things differently;·persistent low mood and emotional when remembering the incident;·comprehension and retention of information remains poor;·feels cut off from others;·unable to socialise as result of anxiety when leaving home, where she feels safe;·has trouble feeling positive emotions;·has trouble concentrating, but slowing getting better;·ongoing feeling of tiredness and exhaustion;·always feeling on guard with hypervigilance; and·startled easily with loud noises etc.

Decision

Reasons for decision

The Tribunal, therefore, finds that the Applicant’s claimed ailment was contributed to, to a significant degree, by her employment.DECISION The decision under review is set aside, and in its place, it is determined that:(a)Comcare is liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the Applicant’s mental condition suffered on 16 September 2019; and(b)the costs of, and incidental to, the application are payable to the Applicant, pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), as agreed or taxed.

Ratio Decidendi

Legal Principle Established

In making this new diagnosis, Dr Kar observed – Exhibit 8 pp. 95 – 96:“I note from review of the file that Dr Malik, her treating psychiatrist, in his report of 6 November 2019 wrote that she had some bad experiences growing up in Wollongong and her father had never appreciated her. Dr Malik wrote, ‘I can see how this may have been related to her current experience when this man at Centrelink made remarks that could have brought back the trauma she had in her early life.’ This should be contrasted with Dr Duke’s statement ‘She reports no difficulties growing up.’It would also appear that Ms Walker is an unreliable historian. It is written that she had 4 children and one of her sons lived with her as he had ASD and ADHD. Ms Walker had denied any previous history of mental illness and denied anyone in her family having these problems. The relevance of this is that there is denial of Ms Walker’s own past psychiatric history and denial of her genetic risk factors as close biological relatives have a powerful genetic influence depending on the closeness of their genetic relationship. Parents, biological siblings and biological children are called first-degree relatives. Uncles, grandparents and cousins are second-degree relatives.From review of her file Ms Walker has four first-degree relatives who have demonstrated behavioural and psychological issues. These include her father, her biological brother and her biological son, and from the history it also appears her own biological daughter.”CONSIDERATIONIntroduction It is common ground that that the evidence presented to the Tribunal does not support the proposition that the Applicant suffers, or suffered, from an injury other than a disease (s 5A(1)(b)), or an aggravation of an injury other than a disease (s 5A(1)(c)). The initial question before the Tribunal is whether the Applicant suffers, or suffered from, a “disease”, namely, an ailment, or an aggravation of such an ailment – s 5B(1). If such an ailment, or an aggravation of such an ailment, is found to exist, the next question is whether that was contributed to, to a significant degree, by the Applicant’s employment. It is Comcare’s submission that the ailment the Applicant suffers from is a Major Depressive Disorder, that this ailment was a pre-existing condition, and that the Applicant’s employment did not contribute, to a significant degree, either to the onset, or aggravation of, that condition. Rather, the Applicant’s employment was merely the setting in which the symptoms of her pre-existing condition became apparent. Finally, Comcare submits that there is no evidence before the Tribunal that supports the proposition that this pre-existing condition was made worse by the interaction with the customer on 16 September 2019 – SR p. 5 paras 20 – 22. The Applicant’s submission is that it is not necessary to put a “label” on her medical condition, but to accept that she suffered from an ailment recognised by s 5B(1). Further, the Applicant submits that the evidence supports the proposition that the ailment she suffers from was contributed to, to a significant degree, by her employment – Applicant’s Closing Submissions (ACS) (dated 1 February 2022) p. 3 – 4 paras 12 – 17.