XRLC and Comcare (Compensation) [2019] AATA 3553 (10 September 2019)
Division: GENERAL DIVISION
File Number: 2017/7263
Re:XRLC
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:10 September 2019
Place:Sydney
The Tribunal decides that:
1. The reviewable decision dated 20 October 2017, being the decision of Comcare which determined that the applicant had no entitlement to claim compensation for medical expenses and incapacity payments in respect of a psychological injury, is set aside.
2. The matter is remitted to Comcare for reconsideration with the direction that the applicant is entitled to the payment of medical expenses under s 16 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) and to compensation for incapacity under s 20 of the Act.
3. The respondent is ordered pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay the costs incurred by the applicant of these proceedings.
...............................[sgd].............................
Deputy President B W Rayment OAM QC
CATCHWORDS
WORKERS’ COMPENSATION – claim for medical expenses and incapacity payments –persistent depressive disorder – ‘significant degree’ test applied – whether applicant’s employment significantly contributed to his psychological injury – whether applicant continues to be entitled to compensation for the cost of medical treatment obtained in relation to compensable injury – whether applicant continues to be incapacitated from work as a result of the compensable injury – decision under review set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 14, 16, 19, 20, 24, 27, 67
Compensation (Commonwealth Government Employees) Act (Cth) 1971CASES
Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power [2015] FCA 1502; (2015) 239 FCR 187
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536
Comcare v ZZRP [2019] FCA 952REASONS FOR DECISION
Deputy President B W Rayment OAM QC
10 September 2019
Background
The applicant formerly worked for the Australian Taxation Office from 22 September 2003 until 2 June 2016 and has not worked since 28 January 2014.
After the respondent initially rejected a claim for workers compensation in April 2013 for depression/anxiety in the context of work-related stress and bullying, it decided in October 2013 to accept liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) for adjustment disorder with mixed anxiety and depressed mood. It later reconsidered that determination of its own motion in March 2015, and instead characterised the injury as aggravation of depressive disorder, but maintained its acceptance of liability under the Act. The applicant was off work from 28 January 2014.
The expert evidence placed before the Tribunal is unanimous that the applicant suffers at the present time from a psychiatric condition described as a persistent depressive disorder which the parties agree is properly characterised as a disease, and therefore an injury within the meaning of the Act. Comcare stated…
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- AGLC
- XRLC and Comcare (Compensation) [2019] AATA 3553
- Case
- [2019] AATA 3553
- Decision Date
CaseChat Overview and Summary
The court was required to determine three primary legal issues. Firstly, whether the applicant's employment significantly contributed to his psychological injury. Secondly, whether the applicant continued to be entitled to compensation for the cost of medical treatment obtained in relation to a compensable injury. Thirdly, whether the applicant continued to be incapacitated from work as a result of the compensable injury.
The Deputy President, B W Rayment Oam Qc P, approached the evidence chronologically, first considering whether the ailment suffered during employment was an aggravation of a pre-existing condition. The applicant had a history of distress and anxiety during his time with the NSW Police Service, particularly in 1996 when he was investigated by the Police Integrity Commission and appeared before the Wood Royal Commission. He resigned from the police force at that time and did not make a workers' compensation claim. Later, in 2013, when informed his unit would close, he experienced a retriggering of feelings related to the 1996 events. Medical opinions varied, with one psychiatrist suggesting he may have been sensitised to trauma during his police work, while another suggested problematic personality characteristics rather than a diagnosed disorder. The court considered the differing expert opinions on the nature and cause of the applicant's psychological condition, including whether the 1996 events constituted a sensitising trauma or if a diagnosis could be made retrospectively.
The decision under review was set aside and remitted for redetermination.
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
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Ratio Decidendi
Legal Principle Established
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