XKGN and Comcare (Compensation) - [2020] AATA 291

XKGN and Comcare (Compensation) [2020] AATA 291 (25 February 2020)
Division:GENERAL DIVISION
File Numbers: 2017/5105 & 2018/3955
Re:XKGN
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:25 February 2020
Place:Melbourne

The reviewable decisions are set aside and in substitution the Tribunal decides the following in relation to each reviewable decision.
File Number 2017/5015:
(a)From 23 June 2017 to the present date (and at the present date), the Applicant undertook medical treatment and was incapacitated for work as a result of the injury identified as an adjustment reaction with anxious mood. The injury arose out of or in the course of her employment with the Department of Human Services (DHS), or to which that employment contributed to a significant degree. The injury was the subject of a claim for compensation dated 23 March 2015, which gives rise to entitlement to compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act).
(b)From 23 June 2017 to the present date (and at the present date), the Respondent shall pay to the Applicant:
a.the costs of all medical and related treatment expenses incurred in respect of the injury, pursuant to section 16 of the SRC Act; and
b.weekly payments of compensation in respect of incapacity for work for all periods, pursuant to section 19 of the SRC Act, on the basis that the employees ability to earn is no more than the actual earnings.

(c)The Respondent shall pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

File Number 2018/3955:
(a)The Applicant suffers a permanent impairment as a result of the injury which arose out of or in the course of her employment with DHS, or to which that employment contributed to a significant degree. The permanent impairment is the subject of a claim for compensation dated 23 March 2015, which gives rise to an entitlement to compensation pursuant to section 14 of the SRC Act.
(b)The Applicant suffers a degree of permanent impairment of 10% in respect of the injury and is entitled to permanent impairment compensation, pursuant to section 24 of the SRC Act.
(c)The Applicant is therefore entitled to non-economic loss compensation, pursuant to section 27 of the SRC Act.
(d)The Respondent shall pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

..............[sgd].............................................
R Cameron, Senior Member
Catchwords
COMPENSATION – adjustment reaction with anxious mood – psychological condition – whether injury significantly contributed to by employment – entitlement to compensation – whether to injury is a permanent impairment of at least 10% – first and second reviewable decisions set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Arnott's Ltd & Ors v Trade Practices Commission (1990) 24 FCR 313
REASONS FOR DECISION
R Cameron Senior Member
25 February 2020
INTRODUCTION

There are two applications before the Tribunal.
The first application…

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 XKGN and Comcare (Compensation)

Details

AGLC: XKGN and Comcare (Compensation) [2020] AATA 291
Case: [2020] AATA 291
Decision Date: 25 February 2020

CaseChat Overview and Summary

This matter concerned two applications before the Administrative Appeals Tribunal, brought by the Applicant, XKGN, against the Respondent, Comcare. The dispute centred on whether the Applicant was entitled to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) for a psychological condition, specifically an adjustment reaction with anxious mood, which she alleged arose out of or in the course of her employment with the Department of Human Services (DHS). The Respondent had previously denied compensation, and the Applicant sought review of these decisions.

The Tribunal was required to determine whether the Applicant's condition constituted an "injury" within the meaning of the SRC Act, and if so, whether it was significantly contributed to by her employment. Furthermore, for one of the applications, the Tribunal had to consider whether the Applicant suffered a permanent impairment of at least 10% as a result of this injury, which would entitle her to compensation for non-economic loss. The issue of whether the injury was caused by reasonable administrative action was initially raised by the Respondent but was formally abandoned during the hearing.

The Tribunal considered extensive documentary and viva voce evidence, including reports from several medical experts. It found that the Applicant, a dedicated public servant, experienced increased workload and stress due to agency mergers and a particularly difficult case involving threats and concerns for her safety. The Tribunal concluded that the Applicant's adjustment reaction with anxious mood was an injury that arose out of or in the course of her employment, or to which her employment contributed to a significant degree.

Consequently, the Tribunal set aside the reviewable decisions in both applications. In substitution, it found that the Applicant was entitled to compensation for medical treatment and weekly payments due to incapacity for work from 23 June 2017. Furthermore, the Tribunal determined that the Applicant suffered a permanent impairment of 10% as a result of the injury, entitling her to compensation for permanent impairment and non-economic loss. The Respondent was ordered to pay the Applicant's costs in both proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The Respondent had for some time during the course of the conduct of both applications sought to rely on a contention that if the Applicant’s condition was an “injury” within the meaning of the SRC Act, such injury was suffered by her as a result of reasonable administrative action. The reliance on the question of reasonable administrative action was formally abandoned on the fourth day of the hearing.FACTUAL BACKGROUND Many background facts are not in dispute[14]. It is useful to recount some of them to give context to this dispute.[14] Paragraphs 7 to 24 of the Applicant’s Amended Statement of Facts, Issues and Contentions of 31 October 2018 were admitted by the Respondent. The Applicant has been employed by the Commonwealth since 29 November 1982. The Tribunal has no reason to doubt that she was a dedicated and conscientious public servant. At all times relevant to these applications, the Applicant was employed by the DHS as a Senior Rehabilitation Case Manager (“RCM”) at APS Level 6. She had performed such duties for approximately eight years prior to the onset of the injury she now complains of. The Applicant gave evidence that from approximately 2011, her workload and that of her team seemed to increase. Part of the cause of this increased workload was, in her estimation, a result of the merging of several government agencies including Centrelink and Medicare into the DHS. There was an increase in the workload for all case managers including the Applicant. She described the situation as being a case of high workload with lowered resources. The increase in workload also coincided with what she described, in various ways but generically, as a difficult case or a long-term case that she worked on for some years. The difficult case she said she worked on was from approximately 2010 until the end of 2013. The difficulties with the case were compounded by the fact that the claimant worked on the first floor, whilst the Applicant worked on the ground floor of the same building in Devonshire Road, Sunshine. The person concerned, according to the Applicant, made statements that she felt were threatening and blamed her in some way for the conditions from which she suffered. There were apparently also threats made to her in various ways. These threats included references to the ability of the claimant to bring legal proceedings against the Applicant, exposing her to personal liability rather than that of her employer. After these threats were made she would only meet that person with someone else present. Additionally, the Applicant gave evidence that about the same time as the threats were made she received several nuisance telephone calls at home; which she inferred may have come from the claimant in the difficult case. She became increasingly worried about the reaction of the person whose case she was managing. By reason of these facts she was concerned for her safety and that of her children. Indeed, as was explored in some detail during the course of the Applicant’s evidence-in-chief and cross-examination, she took a cricket bat and a pair of scissors to bed at night for protection when her husband was overseas.

Evidence

Evidence Before The Court

The second application (2018/3955) seeks review of the Respondent’s decision made on 11 July 2018 affirming a previous decision made on 1 June 2018 denying the Applicant compensation under sections 24 and 27 of the SRC Act on the grounds that she does not presently suffer from an employment related psychological condition (“the second reviewable decision”).THE EVIDENCE The hearing of this application, although fragmented, occupied five sitting days. There was both viva voce and documentary evidence. The Applicant gave viva voce evidence. Additionally, two witness statements made by her were tendered. The Applicant's first witness statement dated 28 March 2018 was exhibit "A-4". A subsequent witness statement dated 21 April 2019 was exhibit "A-5". The Respondent called a lay witness from the Department of Human Services (“DHS”) who will be referred to in these reasons as “KA” so as to minimise to the largest possible degree potential identification of the Applicant. In 2014 KA was Assistant Director of the Rehabilitation and Recovery team (“R & R team”) of the DHS. In addition to her viva voce evidence she also filed a witness statement. KA’s witness statement was exhibit "R-5". Viva voce evidence was adduced from several experts. Those experts were:(e)Dr Nigel Strauss, a Consultant and Occupational Psychiatrist[1];(f)Dr Sarah Valentine, a Clinical Psychologist[2]; and(g)Dr James Hundertmark, a Consultant Psychiatrist[3].[1] Two reports from Dr Strauss were in evidence, dated 13 February 2018 and 6 March 2018 (exhibit "A-2").[2] A report from Dr Valentine was in evidence before the Tribunal and was document T 11 in the T documents in application 2017/5105.[3] There were several reports in evidence before the Tribunal from Dr Hundertmark. They were dated 31 March 2017 (document T 14 of the T documents in application 2017/5105), a "Supplementary Medical Report" dated 26 April 2017 (document T 16 of the T documents in application 2017/5105) and a further supplementary report dated 18 May 2018 (exhibit "R-7"). There was a significant volume of documentary evidence including the documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) in both proceedings, which need not be recorded in full in these reasons. A witness statement from another Assistant Director Human Resources Support, made on 7 May 2019 who will be referred to in these reasons as “OT” also to minimise to the largest possible degree potential identification of the Applicant, was tendered by the Respondent. The witness statement of OT was exhibit "R-6". She did not give viva voce evidence. Also tendered during the course of the hearing were several reports of experts who did not give viva voce evidence; which should be noted as the reports will feature later in the course of these reasons. The following further expert reports were in evidence:(a)Dr Ash Takyar, Consultant Psychiatrist, dated 21 April 2015;[4](b)Dr Scott Chambers, Consultant Psychiatrist, dated 12 May 2015,[5] 1 July 2015[6], 5 August 2016[7], 29 November 2016[8], 28 February 2017[9] and 22 May 2017[10];(c)Dr Kirthi Kumar, Consultant Psychiatrist, dated 10 August 2016[11] and 31 August 2016[12]; and(d)Dr Andria Economidis, General Practitioner (“GP”), dated 22 April 2015.[13][4] Document T 5 of the T documents in application 2017/5105.[5] Document T 24.7 (page 274 of the T documents in application 2017/5105).[6] Exhibit "A-1".[7] Document T 24.12 (page 457 of the T documents in application 2017/5105).[8] Document T 10 of the T documents in application 2017/5105.[9] Document T 13 of the T documents in application 2017/5105.[10] Document T 24.19 (page 529 of the T documents in application 2017/5105).[11] Exhibit "A-3".[12] Exhibit "A-3"[13] Document T 6 of the T documents in application 2017/5105.ISSUES BEFORE THE TRIBUNAL

Decision

Reasons for decision

Accordingly, in both applications the Tribunal will make decisions in accordance with those sought in the Applicant’s Statement of Facts, Issues and Contentions.CONCLUSION File Number 2017/5015.(a)The reviewable decision is set aside.(b)In substitution the Tribunal finds that:(i)From 23 June 2017 to the present date (and at the present date), the Applicant undertook medical treatment and was incapacitated for work as a result of the injury identified as an adjustment reaction with anxious mood. The injury arose out of or in the course of her employment with the DHS, or to which that employment contributed to a significant degree. The injury was the subject of a claim for compensation dated 23 March 2015, and gives rise to entitlement to compensation pursuant to section 14 of the SRC Act.(ii)From 23 June 2017 to the present date (and at the present date), the Respondent shall pay to the Applicant:a.the costs of all medical and related treatment expenses incurred in respect of the injury, pursuant to section 16 of the SRC Act; andb.weekly payments of compensation in respect of incapacity for work for all periods pursuant to section 19 of the SRC Act, on the basis that the employees ability to earn is no more than the actual earnings.(c)The Respondent shall pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act. File Number 2018/3955.(a)The reviewable decision is set aside.(b)In substitution the Tribunal finds that:(i)the Applicant suffers a permanent impairment as a result of the injury which arose out of or in the course of her employment with DHS, or to which that employment contributed to a significant degree. The permanent impairment is the subject of a claim for compensation dated 23 March 2015, which gives rise to an entitlement to compensation, pursuant to section 14 of the SRC Act; (ii)the Applicant suffers a degree of permanent impairment of 10% in respect of the injury and is entitled to permanent impairment compensation, pursuant to section 24 of the SRC Act; and(iii)the Applicant is therefore entitled to non-economic loss compensation, pursuant to section 27 of the SRC Act.(c)The Respondent shall pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

Ratio Decidendi

Legal Principle Established

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