Watson and Comcare (Compensation)
[2016] AATA 422
•24 June 2016
Watson and Comcare (Compensation) [2016] AATA 422 (24 June 2016)
Division
GENERAL DIVISION
File Number
2015/3954
Re
Chris Watson
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 24 June 2016 Place Sydney The application before the Tribunal is dismissed.
............................[sgd]............................................
Senior Member J F Toohey
CATCHWORDS
PRACTICE AND PROCEDURE – claims for compensation – application by respondent to dismiss on ground of no reasonable prospect of success – Tribunal satisfied application has no reasonable prospect of success – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 42B
Safety, Rehabilitation and Compensation Act 1988
CASES
Paraponiaris and Secretary, Department of Employment [2015] AATA 895
REASONS FOR DECISION
Senior Member J F Toohey
24 June 2016
On 27 July 2015, Mr Chris Watson sought review by the Tribunal of a decision by Comcare denying liability under the Safety, Rehabilitation and Compensation Act1988 (SRC Act) to compensate him for “adjustment reaction with mixed emotional features”.
In the present proceedings, Comcare seeks an order under subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) dismissing Mr Watson’s application on the ground that it has no reasonable prospect of success.
Subsection 42B provides:
(1) The Tribunal may dismiss an application for the review of a decision, at any
stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
MR WATSON’S CLAIM FOR COMPENSATION
On 27 April 2011, Mr Watson commenced employment as a probationary employee at the Civil Aviation Safety Authority (CASA). An email from CASA to Mr Watson on 10 May 2011 confirms a discussion about his late arrival that day and “core working hours”. Emails sent over subsequent weeks show that Mr Watson’s and absenteeism was considered a problem. On 29 June 2011, CASA notified Mr Watson in writing that, having been late without reasonable excuse after being “counselled for lateness” on several occasions, his employment was terminated.
Mr Watson asked CASA to reconsider its decision, citing “some instances of poor health” and that he had been seeing a psychologist for in insomnia. CASA determined that the decision regarding termination of his employment would remain unaltered.
On 1 December 2014, Mr Watson claimed compensation for “severe anxiety and depression” which he said arose as a result of “constantly being given tasks [he] was not trained for and could not complete, the pressure leading to psychological damage”. He stated that he first noticed his condition on 12 May 2011 and first sought medical treatment on 23 May 2011. In support of his claim, he submitted several certificates from his general practitioner certifying him unfit for work during May 2011, one of which referred to him as suffering “severe anxiety and depression severe insomnia” caused by “lack of job training and being assigned tasks he was not trained for”. He also submitted a certificate dated 12 February 2015 stating that he was suffering from anxiety and had difficulty catching public transport.
On 30 January 2015, Comcare asked Mr Watson to attend an examination with a psychiatrist on 25 February 2015. Mr Watson advised he was unable to attend and an assessment was scheduled with another psychiatrist on 18 February 2015. Mr Watson advised he could not attend the new appointment. A further appointment was arranged for 25 February 2015 which Mr Watson advised he also could not attend. Comcare arranged for him to see another psychiatrist on 12 March 2015 but Mr Watson did not attend.
On 13 March 2015, Comcare wrote to Mr Watson setting out the appointments he had failed to attend and determining that it was not satisfied on the medical evidence available that he suffered from “an ailment” as defined in the SRC Act, and; consequently, his claim was rejected.
Mr Watson sought reconsideration of Comcare’s decision. By a reviewable decision dated 10 June 2015, Comcare affirmed its decision for, essentially, the same reasons.
On 27 July 2015, Mr Watson lodged his application for review. It stated simply:
The decision made to reject is wrong, and not based on all the facts. Some facts quoted are incorrect.
The Tribunal arranged a conference between Mr Watson and Comcare on 21 September 2015. On 10 September 2015, Comcare wrote to advise that it had arranged for Mr Watson to be examined by a psychiatrist on 2 November 2015. On 21 September 2015, Mr Watson telephoned the Tribunal and asked for the conference to be vacated as he had a migraine. The Tribunal rescheduled the conference to 2 November 2015.
Correspondence from Comcare’s solicitors to Mr Watson dated 9 October 2015 shows that he telephoned their office on 7 October 2015 objecting to the requirement that he attend an examination in the city and, on 8 October 2015, Comcare issued a formal direction pursuant to s 57 of the SRC Act requiring him to attend the examination with the psychiatrist. By letter dated 13 October 2015, Comcare advised the Tribunal that the appointment made for Mr Watson to undergo a medical examination conflicted with the conference at the Tribunal and asked for the conference to be rescheduled.
On 13 October 2015, Mr Watson sent an email to the Tribunal and Comcare to say he was unable to attend the appointment with the psychiatrist “due to panic attacks”. He asked that an appointment be arranged closer to his home and advised that his own psychiatrist would be writing to the Tribunal within the next seven days. On 22 October 2015, Dr Peter Stepan wrote to Comcare’s solicitors advising that he had been treating Mr Watson since 21 May 2013; he suffers from “Panic Disorder”; and he could manage to see a psychiatrist in his vicinity but was unable to attend an appointment in the city because of the panic disorder.
Subsequently, Comcare arranged an appointment for Mr Watson with a psychiatrist in the city on 5 January 2016. The sequence of correspondence is not easy to follow but, on 2 December 2015, Mr Watson advised Comcare by email that he could not attend the appointment “due [to] health”. On 8 December 2015, he sent an email advising that he had an appointment the following day with a consultant neurologist after an MRI showed fluid on the right-hand lobe of his brain; he asked that the appointment with the psychiatrist be deferred. Comcare advised it would not reschedule the appointment and that it had issued a notice under s 57 of the SRC Act requiring Mr Watson to attend. He did not attend.
By letter dated 22 February 2016, Comcare notified Mr Watson that, absent a reasonable excuse for his failure to attend the examination, his rights to compensation were suspended pursuant to subsection 57(2) of the SRC Act until the examination took place. Comcare advised that it had determined that Mr Watson did not have a reasonable excuse for failing to attend the appointment.
On 22 February 2016, Comcare sought a dismissal hearing on the basis that the decision was not reviewable on account of the proceedings being suspended; or for Mr Watson’s failure to proceed with the application; or because his application had no reasonable prospect of success.
At a telephone hearing on 11 May 2015, it was agreed that dismissal on the first ground posed potential procedural difficulties and that the matter would be best dealt with by considering whether Mr Watson’s application for review should be dismissed under s 42A of the AAT Act on the ground it has no reasonable prospect of success. In a lengthy discussion with Mr Watson and Comcare’s solicitor, the lack of evidence supporting his claim to have a psychological injury as a result of his employment was drawn to his attention. At the end of the hearing, the matter was adjourned for 28 days to allow Mr Watson time in which to obtain any evidence on which he sought to rely in support of his submission that his application should not be dismissed. Nothing has been received from Mr Watson in support of this contention.
HAS MR WATSON’S APPLICATION NO REASONABLE PROSPECT OF SUCCESS?
The principles applicable to the statutory test in s 42B were set out recently in the decision of Deputy President Alpins in Paraponiaris and Secretary, Department of Employment [2015] AATA 895 at [19] to [34]. The principles can be summarised as follows:
·the Tribunal must exercise a high degree of caution before dismissing an application;
·a high degree of certainty about the ultimate outcome of the proceeding is needed;
·the application must lack any prospect of success which can properly be said to meet the standard of being reasonable;
·where an application requires resolution of a real issue or issues of fact, it is not enough for the Tribunal to form the view that an applicant is unlikely to succeed in respect of those issues;
·where an application requires resolution of a real issue or issues of law, the Tribunal cannot properly be satisfied that it has no reasonable prospect of success unless there is no room for doubt about the proposition of the law upon which the success of the application depends;
·where the success of an application depends upon propositions of law said to arise from relevant legislative provisions which are not sufficiently tenable as a matter of proper statutory interpretation, it is open to the Tribunal to be satisfied that the application has no reasonable prospect of success for the purposes of subsection 42B(1)(b).
The evidence concerning Mr Watson’s claimed psychological condition amounts to the following. A medical certificate from his general practitioner in May 2011 stated that Mr Watson had “severe anxiety and depression severe insomnia” caused by “lack of job training and being assigned tasks he was not trained for”. Clinical notes from other general practitioners in May 2011 refer to him commencing employment with CASA and to the prescription of painkillers, antidepressant medication and medication for chronic insomnia but do not suggest a causal connection between the two. A note dated 23 May 2011 shows “Panic/anxiety triggers? Caffeine…” and “Committed to make Appt [sic] with Adrian Brown psychologist”. A note on 15 June 2011 shows “urged to see” the psychologist. Neither makes any reference to his employment with CASA. A certificate from a psychiatrist dated 12 February 2015 stated that Mr Watson was suffering from anxiety and had difficulty catching public transport. It did not suggest any connection with his employment with CASA.
On the basis that only one medical certificate refers to any connection between Mr Watson’s psychological condition and his employment, and that certificate provides no further details, I am satisfied that Mr Watson’s claim would have no reasonable prospect of success.
Mr Watson has been given every opportunity to present himself for examination by a psychiatrist and to provide any further information that would support his claim. He has not done so. He has been put on notice by Comcare and by the Tribunal of the lack of information supporting his claim and the implications for his application for review. Given the absence of any further supporting evidence, it is reasonable to conclude that there is no such information.
It is a serious matter to dismiss an application for no reasonable prospect of success and is not to be done lightly. However, I am satisfied that, on the information before the Tribunal, Mr Watson’s application lacks any reasonable prospect of success.
Conclusion
For these reasons, I am satisfied that Mr Watson’s application for review has no reasonable prospect of success and I dismiss his application.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey .........................[sgd]...............................................
Associate
Dated 24 June 2016
Date of hearing 11 May 2016 Applicant In person Solicitors for the Respondent Mr P Lehmann, Lehmann Snell Lawyers
Key Legal Topics
Areas of Law
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Administrative Law
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Civil Procedure
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Summary Judgment
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