XBBS and Comcare (Compensation) [2018] AATA 4041 (25 October 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) No: 2015/6808;
)2015/6809;
GENERAL DIVISION ) 2015/6810; and
)2017/4725.
Re: XBBS
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Member Mark Hyman DATE OF CORRIGENDUM: 30 October 2018 PLACE: Canberra The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- The word, ’Peter’, appearing in paragraph 1, is changed to ‘Michael’.
………………………………..
Member Mark HymanDivision:GENERAL DIVISION
File Number(s): 2015/6808, 2015/6809, 2015/6810, 2017/4725
Re:XBBS
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mark Hyman, Member
Date:25 October 2018
Place:Canberra
The tribunal’s jurisdiction with respect to the applicant’s psychiatric condition extends only to that condition as secondary to the applicant’s physical condition.
........................................................................
Mark Hyman, Member
Catchwords
COMPENSATION – jurisdiction – where the applicant has claimed both physical and psychiatric injuries - whether the applicant’s psychiatric condition is a primary condition or secondary to the physical condition – factors deciding the jurisdiction of the tribunal on review - claim form and related documentation – interaction between the applicant’s physical and psychiatric conditions – obligation on the tribunal in decision-making - where a claim form for the psychiatric condition has not been found – whether inference may be drawn from the absence of the claim form – where psychiatric condition consistently presented to Comcare as a secondary condition – tribunal’s jurisdiction limited to the psychiatric condition as a secondary condition
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 38AA, 43Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 24, 27, 53, 54, 61, 62, 63, 64, 69, 71, 72
Cases
Abrahams and Comcare [2006] FCA 1829
Australian Postal Corporation v Sellick [2008] FCA 236
Beezley v Repatriation Commission [2015] FCAFC 165
Blatch v Archer (1774) 1 Cowp 64; [1774] Eng R2; (1774) 96 ER 969.
Brown and Repatriation Commission [2004] AATA 1262
Comcare vBromham [2017] FCA 174
Comcare v Mooi [1996] FCA 1587
de Gail and Comcare [2018] AATA 2309
Durham and TNT Australia [2011] AATA 802
Kennedy v Comcare [2014] FCA 82
Secretary to the Department of Justice and Regulation v Bhatia [2018] VSC 500
Smith v Comcare [2013] FCAFC 65
Szabo v Comcare [2012] FCAFC 129
Telstra v Barrow (1994) 35 ALD 461
Toyota Motor Corporation v Marmara [2014] FCAFC 84
West Tamar Council v Resource Management and Planning Appeal Tribunal [2015] TASFC 12
REASONS FOR DECISION
Mark Hyman, Member
25 October 2018
The applicant in this matter, known by the pseudonym XBBS, has applied to the tribunal for review of four reconsideration determinations made by the respondent, Comcare. The matter was listed to be heard on 22-24 August 2018. At the hearing the applicant was represented by Mr Christopher…
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- AGLC
- XBBS and Comcare (Compensation) [2018] AATA 4041
- Case
- [2018] AATA 4041
- Decision Date
CaseChat Overview and Summary
The legal issues before the tribunal were whether the applicant's psychiatric condition was a primary or secondary condition, and consequently, what the scope of the tribunal's jurisdiction was in reviewing Comcare's determination. The tribunal was required to consider the initial claim documentation, the interaction between the applicant's physical and psychiatric conditions, and whether an inference could be drawn from the absence of a specific claim form for the psychiatric condition.
The tribunal reasoned that Comcare was entitled to process the claim based on the information provided. The initial claim and subsequent documentation consistently presented the psychological condition as secondary to the physical injury. While later material might have suggested a more complex aetiology, the claim was advanced and processed on the basis that the psychological injury arose from the physical one. Therefore, the tribunal's jurisdiction was limited to considering the psychiatric condition as secondary to the physical condition. The tribunal noted that early documentation, including the injury report and claim form, focused solely on physical matters, with references to stress primarily in the context of exacerbating physical pain. Later reports, while acknowledging the applicant's personality and stress levels, still framed these as factors aggravating the physical injury.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The respondent argues that Comcare was entitled to process the claim made by the applicant on the basis of the information and related material put to it. That was initially entirely in terms of a physical injury. When it became apparent that there was a psychological condition to be taken into account, that condition was presented from the start as a secondary condition arising from the physical injury. No matter how the aetiology might be revised at a later time, the claim was advanced and processed on the basis that the psychological injury was secondary to the physical injury and all the documentation is consistent with that. The tribunal’s jurisdiction is therefore limited to the psychological condition as a secondary condition arising from the physical condition.CONSIDERATION The starting point in this matter is the original claim made by the applicant and the documentation provided to Comcare at or around that time; those early documents are closely focused on the applicant’s physical injury: the injury report (T5) does not mention any psychological element such as stress or mood, and when indicating the parts of the body affected by the injury the applicant ticked boxes for shoulder, elbow, arm, wrist and neck, but not the box marked “psychological system”; the supervisor’s statement (T7) dated 8 August 2003 notes that the injury was contributed to by “nature of work; pressure of work to achieve deadlines and outcomes”; the claim form (T8, dated 13 August 2003) limits the diagnosis to physical matters (“initial diagnosis = tennis elbow as at incident report current diagnosis = right C6 nerve root impingement”) but there is a reference to how stress increases the pain, and the attached notes list also “increased workload” with mention of stress, increased responsibility and decreased autonomy as implicated factors; the determination accepting liability under section 14 of the SRC Act (T12) considers only the physical condition. Some of the documentation refers to the appearance of symptoms earlier than March 2003, which was when an accident report was submitted relating to symptoms in the upper limbs and neck, leading later to the lodgement of the claim. Later documents (letter of Dr Charles Howse, a sports physician, dated 27 August 2003 (T10), report of Mr Graeme Brazenor, a neurosurgeon, dated 6 February 2008 (T79)), refer to symptoms occurring in late 2002 which were at that time diagnosed as lateral epicondylitis and there is a reference in the second of those reports to some symptoms occurring at earlier times in the applicant’s life, although these were not serious or protracted. None of these reports reference psychological symptoms or issues. Material from shortly after the lodgement of the claim, however, begins to note the interaction between the applicant’s physical condition and his personality. Thus Dr Eaton in a letter of 24 September 2003 said “Unfortunately he has a personality which has resulted in him becoming quite stressed and anxious as a result of the situation and the demands placed upon him. He has not been in a position to adequately control his workload or pace his duties accordingly.” He further noted “his pain condition has been further aggravated by stress in the workplace and his personality …”. In the initial needs assessment report by the rehabilitation provider Lisa Castles (T22), the assessor noted that stress was a contributing factor that exacerbated the physical injury. The applicant’s surgeon, Mr Brazenor, described him in letters dated 29 July 2005 (T26) and 31 August 2005 (T27) as ”tightly wound” and “deeply neurotic”.