Winchester and Comcare (Compensation) - [2018] AATA 2146

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, 27
CASES
Canute v Comcare [2006] HCA 47
Telstra v Hannaford [2006] 151 FCR 253
Prain v Comcare [2017] FCAFC 143
SECONDARY 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…

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 Winchester and Comcare (Compensation)

Details

AGLC: Winchester and Comcare (Compensation) [2018] AATA 2146
Case: [2018] AATA 2146
Decision Date: 10 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against a decision of the Administrative Appeals Tribunal affirming a decision regarding compensation for permanent impairment and non-economic loss. The applicant had originally suffered a psychiatric injury in the early 1990s while employed by the Aboriginal and Torres Strait Islander Commission (ATSIC). The core dispute revolved around whether the applicant continued to suffer from this accepted psychiatric condition, or if subsequent events had displaced it as the material cause of his present difficulties, potentially leading to a new condition such as adjustment disorder.

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

Be that as it may, the Respondent has also said that it relies on “a number of facts not pleaded by the applicant”.[12] For the sake of completeness, I will endeavor to list the totality of the relevant factual circumstances by reference to the Applicant’s evidence at the hearing.[12] Ibid, paragraph [5].The Applicant’s Evidence in Chief The Applicant said he was born in Canada. He attained a Bachelor of Social Work and also completed a number of other management courses. He was employed in Canada – in the prison system – for approximately 11 years before taking a role with a telephone company. He was also in the military for a couple of years. He moved to Australia in about 1990 and obtained employment here. His initial job in Australia saw him working for the Commonwealth Health Department. He was then promoted to a position with the Aboriginal and Torres Strait Islander Commission (“ATSIC”) in or about 1991. His position with ATSIC saw him based in the Northern Territory at Tennant Creek. The role involved him acting in the capacity of a Senior Project Officer responsible for administering programmes to Aboriginal communities together with initially vetting, then approving and ultimately overseeing those projects to completion. He told the Tribunal that his role at ATSIC “…was a difficult job” and that he “had a lot of trouble from other people in the office there, which required [him] to repeat a lot of work”.[13] It seems these difficulties derived from deliberate misuse of and interference with the computer systems used by the office in which the Applicant worked. He said “The computer systems were sabotaged and things like that – yes, I had a lot of trouble with some of the people in the office there.”[14] [13] Transcript for 13/11/2007, page 7, line 45 and page 8, line 1.[14] Transcript for 13/11/2007, page 8, lines 2 – 3. With further reference to these difficulties in his workplace, he was asked in evidence in chief about what prompted such difficulties resulting in the asserted issues in his then workplace. His evidence was to this effect:Well I think there was just a lot of jealousy some people in the office had against me, and as I said, there was a lot of trouble in the office itself with computer systems being deleted, and projects being deleted and messed up and having to be re-done. It takes days and days to do a project sometimes. And also trouble at my work – the house I was assigned to was vandalised, and people were watching my movements, coming and going in my house, all the time.[15][15] Ibid, page 8, lines 10 – 17. The Applicant developed asthma after only a few months in Tennant Creek. He experienced “…a lot of trouble adjusting, and a lot of anxiety and fear about what was going on, and couldn’t sleep at night because I was worried about what was happening and who was watching me…”.[16] According to his evidence, this insomnia and anxiety caused him to develop headaches that turned into migraine headaches for which he was placed on medication. Due to the lack of an asthma specialist in Tennant Creek, the Applicant recalls being sent to a hospital in Alice Springs for treatment on a few occasions. [16] Ibid, page 8, lines 20 – 24.

Decision

Reasons for decision

I have significant doubt that any asserted ongoing difficulties now experienced by the Applicant could be said to have been materially contributed to by what occurred in his former workplace at ATSIC some 20-25 years ago. Rather, other documented factors that have occurred during the continuum of causative events, such as (1) the cerebellar stroke in 2012; (2) the diagnosed and treated malignancy in 2015; and (3) the self-reported anxiety about impending financial stricture, have displaced the initial workplace incident(s) such that – even if I were to accept that the Applicant’s time at ATSIC in part contributed to his present condition – it can no longer be said that the Applicant’s time at ATSIC materially contributed to his present condition. It follows that the Applicant no longer suffers from an injury or disease, and so cannot satisfy the requirements of either ss 24 or 27 of the Act.CONCLUSION I return to the relevant issues for determination by the Tribunal mentioned earlier in these Reasons and respond (in bold) based upon my above findings:(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; The Applicant suffers from a condition that is not materially contributed to by his work.(b)if the answer to issue (a) is that the Applicant continues to suffer from the accepted conditions, the resulting issue is whether the accepted conditions continue to be materially contributed to by the Applicant’s former employment with the Aboriginal and Torres Strait Islander Commission (“ATSIC”) such that a resulting finding can be made that he continues to have a disease for the purposes of the Act; They do not.(c)if the answer to issue (b) is in the affirmative, the issue then devolves to a determination of two additional things:(i)whether that disease constitutes a permanent impairment with permanent manifestation (or a likelihood to continue indefinitely); and Unnecessary to answer.(ii)whether such permanent impairment gives rise to demonstrable non-economic loss attributable to the accepted conditions such that the Applicant may be entitled to lump sum compensation under ss 24 and 27 of the Act; Unnecessary to answer.(d)if there is a positive finding for the questions raised in (c) (i) and (ii) above, then the following issues arise for determination:(i)what is the percentage degree of the Applicant’s whole person impairment?; Unnecessary to answer.(ii)what is the appropriate score attributable to the Applicant’s non-economic loss?; Unnecessary to answer.(iii)what is the quantum of compensation payable to the Applicant? Unnecessary to answer.DECISION I affirm the reviewable decision dated 15 December 2015.

Ratio Decidendi

Legal Principle Established

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