Wuth and Comcare (Compensation)

Case [2020] AATA 3625

Wuth and Comcare (Compensation) [2020] AATA 3625 (3 September 2020)

Division:GENERAL DIVISION

File Number(s):2014/4007; 2018/4238      

Re:Nicole Wuth  

APPLICANT

AndComcare

COMCARE

DECISION

Tribunal:Deputy President Gary Humphries AO

Date:3 September 2020

Place:Canberra

The reviewable decisions dated 2 July 2014 and 27 July 2018 are affirmed.

........................................................................
Deputy President Gary Humphries AO

Catchwords

WORKERS COMPENSATION – chronic daily headache – whether the applicant continues to suffer the effects of an injury – whether the applicant suffers permanent impairment as a result of the condition – whether the respondent is liable to pay for non-economic loss in respect of the condition – Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 considered – applicant does not suffer from an injury for the purposes of section 14 of the Safety, Rehabilitation and Compensation Act 1988 – decision under review affirmed

WORKERS COMPENSATION – chronic daily headache – what the applicant’s normal weekly earnings were at the time of the injury – applicant does not suffer an injury for the purposes of the Safety, Rehabilitation and Compensation Act 1988 – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975

Safety, Compensation and Rehabilitation Act 1988

Cases

Australian Postal Corporation v Lucas [1991] FCA 612
Beezley v Repatriation Commission (2015) 150 ALD 11
Comcare v Filla [2002] FCAFC 61
Comcare v Stefaniak [2020] FCA 560
Comcare v Wuth (2017) 156 ALD 561
Comcare v Wuth (2018) 159 ALD 1
Comcare v Wuth (No 2) [2018] FCAFC 60
Comcare v Reardon [2015] FCA 1166
Commonwealth v Beattie [1981] FCA 88
Cosgrove-Kaye and Comcare [2019] AATA 1238
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34
Hopkins and Comcare [2016] AATA 742
Howard v Comcare [2019] FCA 1031
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Martin v Australian Postal Corporation [1999] FCA 655
Mellor v Australian Postal Corporation [2009] FCA 504
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare (2017) 256 FCR 65
Priestley and Comcare [2019] AATA 5456
Riley v Comcare [2011] AATA 674
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
Tippett v Australian Postal Corporation [1998] FCA 335
Williamson and Comcare [2019] AATA 4774
Wuth and Comcare [2015] AATA 947

REASONS FOR DECISION 

Deputy President Gary Humphries AO

3 September 2020

INTRODUCTION

  1. Ms Nicole Wuth suffers from debilitating headaches. She suffered particularly intense headaches while working for the (now) Department of Finance (the Department) in early 2007. In September 2012 Comcare accepted (pursuant to a consent decision made by the Tribunal) her condition of chronic daily headache as a work-related injury, and agreed that the injury should be deemed to have occurred on 27 February 2007.

    LITIGATION HISTORY

  2. On 29 April 2010, Ms Wuth signed a workers’ compensation claim form for Entrenched Chronic Daily Headache (intractable migraine) arising from an exacerbation of post-viral fatigue. She attributed her condition to Inappropriate duties and inappropriate…

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AGLC
Wuth and Comcare (Compensation) [2020] AATA 3625
Case
[2020] AATA 3625
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Wuth against decisions of the Administrative Appeals Tribunal affirming determinations by Comcare. The dispute centred on whether Ms Wuth suffered from a compensable injury for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) and, if so, whether she was entitled to compensation for non-economic loss. Ms Wuth claimed to have developed chronic daily headaches, associated with vertigo and nausea, during her employment with the Department of Finance, which commenced in November 2006. She ceased working in 2008 and her employment was terminated on medical grounds in 2010.

The primary legal issues before the Tribunal were whether Ms Wuth continued to suffer from an injury as defined by section 14 of the Act, and whether any such condition resulted in a permanent impairment for which Comcare was liable to pay compensation, including for non-economic loss under section 27. Comcare contended that Ms Wuth's headaches were either no longer materially contributed to by her former employment, or that the condition did not meet the statutory definition of an injury. The Tribunal was required to consider the medical evidence regarding the cause and persistence of Ms Wuth's headaches and the extent to which her employment contributed to them.

The Tribunal reasoned that for Ms Wuth to be entitled to compensation for permanent impairment under section 24, it first had to be satisfied that she suffered from an injury under section 14. Comcare argued that Ms Wuth's employment no longer materially contributed to her headaches, pointing to the passage of time since she ceased working, the pre-existing viral infection that may have caused headaches, and personal stressors that exacerbated her condition. Comcare also submitted that the nature of her symptoms did not constitute an "injury" under section 14. However, the Tribunal considered the evidence, including expert medical opinions, and ultimately found that Ms Wuth did not suffer from an injury for the purposes of the Act.

Consequently, the Tribunal affirmed the reviewable decisions of Comcare. As Ms Wuth was found not to suffer from a compensable injury under the Act, she was not entitled to compensation for permanent impairment or non-economic loss.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The substantive hearing occurred on 17 and 18 February 2020, and the medical experts – Prof Paul Darveniza and Dr Ross Mellick – gave live evidence. The parties made closing submissions in writing to the Tribunal following the conclusion of the hearing. Following the lodging of those submissions, some further correspondence between the Tribunal and the parties occurred concerning the relevance of the recent Federal Court decision in Comcare v Stefaniak [2020] FCA 560 (per Thawley J).FACTUAL BACKGROUND Ms Wuth was born in March 1978. In her evidence, she told the Tribunal she had had no history of migraine headaches before contracting a viral infection in December 2005. She commenced employment with the Department on 27 November 2006, in a transfer from the Department of Health and Ageing. She told the Tribunal that, notwithstanding that her viral condition had been associated previously with headaches, she had not experienced any headaches in the period leading up to joining the Department. However, between early 2007 and May that year, she developed migraine headaches when she was working long hours, and was tired. She first saw a doctor about this problem in February 2007. However, a CT scan of the brain on 27 May 2007 was normal. Taking into account her medical condition, her offer of employment with the Department of Finance stipulated that she would work 29.4 hours per week. It was agreed that she would not work on Wednesdays. The relevant Australian workplace agreement also stipulated that she would be entitled to Time off In Lieu (TOIL) in certain circumstances for additional hours worked. She told the Tribunal that in 2007 she accrued approximately 4 to 5 days of TOIL. Her employment pattern adhered to the contract in the period leading up to Christmas. However, the intensity of work increased in January in the lead up to the 2007 Federal Budget. Ms Wuth told the Tribunal she has not worked since 2008. Her employment by the Commonwealth was terminated on 27 May 2010 on grounds of medical invalidity. In January and February 2007 she would usually be at work, she said, by 8.00am and rarely left before 8.00 or 9.00pm. She was not supposed to work, under her reduced hours regime, on Wednesdays but she did in fact often work on those days and also on several Saturdays. She had showed her medical certificates restricting her hours to her supervisors, Mr Clayton Hitch and Ms Sharon Ong, but they pressed her to work longer hours because [I] was expected to pull my weight. She had attempted to obtain electronic records of her swipe card entry into her workplace during this period to establish when she had attended, but had been told that these records had been destroyed. Ms Wuth said that there was no time since early 2007 when she has not suffered from headaches. In 2007 these were lasting in some cases for a few days; in May that year one headache lasted for approximately 10 days. She was admitted to hospital on that occasion. She said she associated the headaches with bright lights, loud noises and computers. The headaches would be accompanied by vertigo and nausea. She is sometimes unable to drive a car.

Evidence

Evidence Before The Court

Ms Wuth said her condition had waxed and waned over the years since 2007, but was not as bad as it was in 2007; it has never gone away. She agreed that there were days when stress relating to personal matters would make her headaches worse. She said that the headaches she developed in 2007 were different in quality to those she had experienced before.MEDICAL EVIDENCE On 21 February 2006, Dr Brown recorded that Ms Wuth had been unwell for the last 10 days with, among other symptoms, vertigo and bifrontal headaches, worse on computer, sometimes waking [with] it. He diagnosed viral labyrinthitis and prescribed Stemetil. On 10 July 2006, Dr Brown diagnosed chronic fatigue syndrome probably related to past glandular fever infection, writing that she tires very easily and suggested that she reduce her work hours. In a report dated 14 June 2007, neurologist Dr Colin Andrews recorded the following:[Ms Wuth] has chronic daily headache of a migraine type. She has migrainous vertigo and appears also to have fibromyalgia.She had EVB [Epstein-Barr virus?] in February 2006 and the fatigue started after that with some depression. It has gone onto fibromyalgia with diffuse musculo-skeletal aching, tender muscle points, restless sleep, chronic fatigue and chronic daily headache. Dr Andrew Lark, occupational physician, wrote a report dated 24 July 2007, in which he said:[Ms Wuth] has therefore been working four rather than five days per week because of her health for about one year. She has found that this has helped. She feels that she has been less prone to infections such as colds since working four days per week…[Ms Wuth] indicated that she had started to get sick in early 2006. Glandular fever had eventually been confirmed by blood testing… Her main problems over the last year and a half have been undue fatigue and constantly feeling unwell. She has been tired all the time…The main diagnosis is chronic fatigue syndrome. I understand that Neurologist Dr Andrews has recently diagnosed migraine headache…The indications are that [Ms Wuth’s] condition of chronic fatigue syndrome has become permanent. In a further report dated 1 August 2007, Dr Brown wrote that Ms Wuth had presented in February 2006 with Epstein-Barr virus, and that since then had impaired exercise intolerance and work endurance consistent with chronic fatigue syndrome. She had also developed vertiginous common migraines, occurring on a very regular basis. In a report dated 12 April 2011, Dr Jeff Cubis, consultant psychiatrist, wrote: An anxious somatising personality disorder was not excluded, but generally she presented consistent with a person incapacitated by physical symptoms regardless of cause. In a further report dated 22 February 2012, Dr Andrews wrote: There was a background history of chronic fatigue syndrome starting in February 2006. There was no history of irritable bowel syndrome and no other major problems associated with the chronic fatigue to give a good history of fibromyalgia. Of course migraine and fibromyalgia are commonly associated.Dr Andrews went on to find that her employment contributed significantly to the aggravation of post-chronic fatigue syndrome. He also wrote that usually once the stressors are removed it usually becomes much easier to treat and the outcomes are usually good. He also observed Why there hasn’t been more substantial improvement with treatment, time and not having to go to work is not clear.

Decision

Reasons for decision

It must be noted that neither court had before it (in contrast to this Tribunal) an explicit submission with respect to the operation of s 8(5). However, all three of the cited judgements make reference to s 8(5), and it seems obvious that the effect of the section was within the contemplation of their Honours as they reached their decisions. In my assessment, it is fair to infer from the reasoning displayed above that they would similarly have rejected a submission of Comcare, had it been advanced, that s 8(5) would have disentitled Ms Wuth to impairment payments based on the hours she actually worked in the relevant period before her injury. I come to this view because Comcare’s submission before me on s 8(5) again depended on the premise that the period before Christmas 2006 was more representative of the hours she was working than the first two months of 2007, whereas it is implicit in the decisions of their Honours that it was not.CONCLUSION The reviewable decisions dated 2 July 2014 and 27 July 2018 are affirmed.

Ratio Decidendi

Legal Principle Established

Where an entitlement to compensation for permanent impairment is established under s 24, compensation for any non-economic loss suffered by the employee may also be payable pursuant to s 27.CONSIDERATION – THE CLAIM IN APPLICATION 2014/4007Does Ms Wuth suffer from a compensable injury? In order to obtain compensation for a permanent impairment pursuant to s 24, the Tribunal must be satisfied that Ms Wuth continues to suffer from an injury pursuant to s 14. If there is no injury, there cannot be a permanent impairment arising from it. Since her injury occurred before April 2007, the Tribunal must be satisfied that her employment continues to make a material contribution to her headache condition. Comcare made two submissions to the Tribunal on the question of whether Ms Wuth has a compensable injury. The first was that, if she did suffer from a work-related chronic daily headache condition in February 2007, she no longer suffers from that condition, that is, her former employment no longer makes a material contribution to the condition. The second was that, even if she still suffers from chronic daily headaches, that condition does not satisfy the test of an injury under s 14.Does Ms Wuth still suffer work-related chronic daily headache? Comcare submitted that the weight of the evidence before the Tribunal establishes, on the balance of probabilities, that her former employment no longer makes a material contribution to any headache condition from which he presently suffers. In support of this contention, Comcare pointed to the evidence that Ms Wuth had suffered headaches before the employment-related events of 2007. Dr Lark diagnosed headache associated with a post viral fatigue syndrome commencing in December 2005. Both Dr Andrews and Dr Janaka Seneviratne, a neurologist, considered that her headaches were attributable to Epstein-Barr virus infection she experienced in 2005. Moreover, at the time of the hearing she had been absent from the work environment for more than 12 years, suggesting that any work-related contribution to her headaches could no longer be considered material. Stress associated with bearing and rearing three children in the intervening years had led to the sustainment of her migraine condition, it suggested. There was also evidence that stress arising from her relationship with her husband had contributed to her present condition. Comcare also drew attention to evidence of Ms Wuth that her headaches were made worse by noise, light, her children’s misbehaviour and marital tensions. The inference the Tribunal takes from these references is that these factors, and not her former employment, now substantially account for the incidence of headache. Comcare also noted that Prof Darveniza had been unable to identify anything in Ms Wuth’s duties which would have caused a permanent physiological change, and that there was no other physical evidence to explain her symptoms. It relied upon the evidence of Dr Mellick to the effect that a material contribution to those symptoms from employment was unlikely given the passage of time since 2008. This opinion was consistent with the view expressed by Dr Andrews in his report of February 2012 that usually once the stressors are removed [chronic daily headache] usually becomes more easier to treat and the outcomes are usually fairly good. Dr Andrews also expressed doubt about whether, at the time of that report, the work-related events would still be a factor now in her chronic fatigue syndrome. A further factor relied upon by Comcare was that Ms Wuth did not report any headaches to her GP between November 2016 and June 2019.