Winchester and Comcare (Compensation) [2018] AATA 2146 (10 July 2018)
Division:GENERAL DIVISION
File Number: 2016/0821
Re:Andrew Winchester
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:10 July 2018
Place:Brisbane
The decision under review is affirmed.
…………………[sgd]………………………………….....
Senior Member Theodore Tavoularis
CATCHWORDS
COMPENSATION – permanent impairment – non-economic loss – where Applicant originally suffered a psychiatric injury in the early 1990s – whether Applicant continues to suffer from accepted psychiatric condition – whether Applicant now suffers from adjustment disorder – where Applicant has subsequently had a stroke, had cancer and had several children – whether other factors exist such that Applicant’s present injury can no longer be said to arise out of his employment – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal General Practice Direction
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 24, 27CASES
Canute v Comcare [2006] HCA 47
Telstra v Hannaford [2006] 151 FCR 253
Prain v Comcare [2017] FCAFC 143SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Senior Member Theodore Tavoularis
10 July 2018
CONTENTS
Introduction
The issues before the Tribunal
Legislation
Factual summary
The Applicant’s Evidence in Chief
The Cross-Examination of the Applicant
The evidence of Huifen He (Christy) Winchester
The medical evidence
Historical medical evidence – a summary
Dr Axel Estensen – report dated 17 April 2015
Dr Derek Lovell – report dated 18 September 2015
Dr Axel Estensen – report dated 5 September 2016
Dr Derek Lovell – report dated 10 November 2016
Cross-examination of Dr Estensen
Cross-examination of Dr Lovell
Establishing the continuum of causative events
Summary of findings
Conclusion
Decision
INTRODUCTION
The Applicant, Andrew Winchester, has been receiving compensation from the Respondent, Comcare, for a number of conditions he acquired whilst working for ATSIC in the 1990s. The Respondent has accepted liability for this condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).[1] On 27 October 2015, the Respondent denied liability under ss 24 and 27 of the Act for to compensate the Applicant for his purported (1) permanent impairment; and (2) non-economic loss arising from his accepted condition.[2] The Respondent affirmed this determination in a reviewable decision dated 15 December 2015.[3] The Applicant now seeks review of that decision.
[1] Exhibit 4.
[2] Exhibit 9, T-Documents, T 28, page 167.
[3] Ibid, T 31, page 177.
The Applicant’s accepted conditions (“the accepted conditions”) comprise:
(a)major depressive disorder recurrent episode;
(b)migraine;
(c)insomnia; and
(d)aggravation of asthma.
THE ISSUES BEFORE THE TRIBUNAL
The parties are in substantial agreement as to the issues for determination. There is one difference between them which I will describe below. For the purposes of these Reasons, I consider the relevant issues to be:
(a)whether the Applicant continues to suffer from the accepted conditions, or instead whether he now suffers from a condition or conditions not materially contributed to by his work;
(b)if the answer to issue (a) is that the Applicant continues to…
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CaseChat Overview and Summary
The court was required to determine whether the applicant continued to suffer from accepted conditions, or if he now suffered from conditions not materially contributed to by his work. If the former, the court needed to ascertain if these accepted conditions continued to be materially contributed to by his former employment with ATSIC, such that he still had a disease for the purposes of the relevant Act. Further issues concerning permanent impairment and non-economic loss were contingent on these primary determinations.
The court found that there was significant doubt as to whether the applicant's current difficulties could be materially attributed to the ATSIC employment, which occurred 20-25 years prior. It reasoned that other documented factors, including a cerebellar stroke in 2012, a malignancy diagnosed and treated in 2015, and self-reported anxiety about financial pressures, had displaced the initial workplace incident. Consequently, even if the ATSIC employment had contributed to the applicant's present condition, it could no longer be said to be the material cause. The court concluded that the applicant no longer suffered from an injury or disease that met the requirements of sections 24 or 27 of the Act. The reviewable decision of the Tribunal was affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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