XRLC and Comcare (Compensation)

Case [2019] AATA 3553

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) 1971

CASES

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 952

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

10 September 2019

Background

  1. 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.

  2. 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.

  3. 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…

Continue reading XRLC and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
XRLC and Comcare (Compensation) [2019] AATA 3553
Case
[2019] AATA 3553
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by XRLC against a decision by Comcare regarding a claim for workers' compensation. The applicant sought compensation for medical expenses and incapacity payments due to a persistent depressive disorder. The central dispute revolved around whether the applicant's employment had significantly contributed to his psychological injury, and consequently, his ongoing entitlement to compensation for medical treatment and incapacity.

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

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Those are the tests to which the evidence called on this review and the findings made upon it must be subjected.The Evidence I will approach the evidence chronologically, so as to deal first with the issue to which I referred in [8] above, relating to whether the ailment suffered during the employment was an aggravation of a pre-existing condition. The applicant gave evidence that between 28 March 1988 and 22 February 1996, he worked for the NSW Police Service. For the first four years, he did general duties at Liverpool, and for the next four years he worked in the State Command Surveillance unit. In 1995 he was interviewed by the Police Integrity Commission investigating allegations of excessive overtime and meal allowance claims. In 1996, he appeared before the Wood Royal Commission. He was suffering from distress and anxiety, and his General Practitioner Dr Leung certified him unfit for work for eleven days from 5 February 1996 until 16 February 1996. The applicant underwent no form of psychological treatment and resigned from the NSW Police with effect from 22 February 1996. He made no claim for workers compensation. Within several weeks he was running his own private investigation firm, which he continued to operate until 2003 when he began to work for the ATO. When making its decision of March 2015, Comcare had regard to a report of 5 March 2015 from Dr Barrett and a report of Dr Walker of 20 March 2015. Dr Melissa Barrett, a psychiatrist, reported on her consultation with the applicant on 19 February 2015 and, amongst other things, about the account he gave of the events of 1996. When telling Dr Barrett about those events he said they were highly stressful as the union did not support them, that is, meaning himself and others. He said that he had not done anything wrong, but the conclusion of the Commission was that they had “diddled over time”. He resigned and was threatened with charges unless he did so. He told Dr Barret that he should have stayed, and that others who did not resign were not charged. He told her he felt betrayed and humiliated and that he had high moral values. In his evidence before me, he said that he was angry about what happened in 1996, although he was no longer angry. Dr Barrett concluded that he may have been sensitised to trauma during his work in the police force. When he was told in 2013 that his unit would close, that retriggered his feelings of being unfairly treated and having his job taken from him in 1996. Dr Barrett’s report of 5 March 2015 was sent to Dr Kipling Walker, who had written earlier reports for Comcare concerning the applicant. Dr Walker did not diagnose an adjustment reaction with mixed emotional features, but rather problematic personality characteristics, possibly a personality disorder. About the 1996 events he said: “he has ongoing grievances against the Police Force”. When asked about the same matter, Associate Professor Robertson, a consultant psychiatrist who was called to give oral evidence before me, said that the events of 1996 sensitised the applicant, as had Dr Barrett. Associate Professor Robertson may have meant to refer to Dr Barrett when he said he agreed with Dr McDonald on this matter. Dr McDonald, whose report was tendered by the respondent, treated the effect of the 1996 incident as something that could only be speculated about since there was no contemporaneous diagnosis. He said that it is not possible to make a psychiatric diagnosis on the certificate from the GP of 1996. Possibly he suffered “emotional difficulties”, or possibly an adjustment disorder.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.