YNCJ and Comcare (Compensation)

Case [2019] AATA 4795


YNCJ and Comcare (Compensation) [2019] AATA 4795 (1 November 2019)

Division:                  GENERAL DIVISION

File Number:           2018/0074

Re:YNCJ  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans

Date:1 November 2019

Place:Perth

1.The Reviewable Decision is set aside.

2. In substitution, the Tribunal finds that the Respondent is liable to pay compensation to the Applicant pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), for the psychological conditions of Major Depressive Disorder Recurrent (moderate) and Generalised Anxiety Disorder, as diagnosed by Clinical Psychology Registrar Mary Roberts, which are secondary to the Applicant’s left knee injury.

..................................[sgd]......................................

Senior Member Dr M Evans

CATCHWORDS

Workers’ Compensation – Commonwealth employee – whether liability should be accepted under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) –psychological injuries secondary to accepted knee injury – appropriate diagnosis of Applicant’s psychological conditions – whether a disease - whether an injury other than a disease – whether an ailment – causation – whether contributed to, to a significant degree, by employment – employer’s reliance on Facebook photographs –whether Applicant made wilful and false representations that she did not previously suffer from a psychological condition – Briginshaw v Briginshaw – Briginshaw standard – Reviewable Decision set aside – substituted with a new decision that Respondent is liable to pay compensation to the Applicant under s 14

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 33(1)(c)

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4, 5A(1), 5A(1)(a), 5B, 5B(1)(a), 5B(2), 5B(3), 7(7), 14(1), 67(8), 68(13)

CASES

Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173

Briginshaw v Briginshaw (1938) 60 CLR 336

Chu Yu Chee and Comcare [2018] AATA 1241

Comcare and Mooi [1996] 69 FCR 439

Comcare Australia v Porter (1996) 70 FCR 139

Comcare v Power (2015) 238 FCR 187

Dalton v Secretary, Department of Social Services [2018] AATA 2923

Duffy and Comcare [1996] AATA 676

Fiddian and Comcare (2019) 164 ALD 548

Hutchinson and Comcare [2018] AATA 4357

Iannella v French (1968) 119 CLR 84

Iliadis and Comcare [1996] AATA 602

JXTZ and Comcare [2017] AATA 880

Makin and Comcare [2010] AATA 432

May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468

Prain and Comcare [2016] AATA 459

Prain v Comcare (2017) 256 FCR 65

von Stieglitz and Comcare [2010] AATA 263

Re Wilson and Comcare [1996] AATA 862

Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52

Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555

Vo and Comcare [2005] AATA 773

ZXCF and Comcare [2019] AATA 3572

SECONDARY MATERIALS

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th edition, 2013

The Hon Justice Duncan Kerr, “Keeping the AAT from Becoming a Court”, Australian Institute of Administrative Law (NSW) Seminar, 27 August 2013

REASONS FOR DECISION

Senior Member Dr M Evans

1 November 2019

SUMMARY

  1. The Respondent previously accepted liability for an injury…

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Details
AGLC
YNCJ and Comcare (Compensation) [2019] AATA 4795
Case
[2019] AATA 4795
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, YNCJ, against a decision by Comcare to deny liability for psychological conditions allegedly arising from an accepted workplace knee injury. The Applicant contended that her psychological conditions, including an adjustment disorder with mixed anxiety and depression, were a direct consequence of the chronic pain, reduced function, and consequent life impacts stemming from her accepted knee injury. Comcare's denial was based, in part, on its assessment that the Applicant had not established causation and had potentially made wilful and false representations regarding her pre-existing psychological state. The Administrative Appeals Tribunal was tasked with determining whether Comcare's decision was correct.

The Tribunal was required to determine several key legal issues. Firstly, it needed to ascertain the appropriate diagnosis of the Applicant's psychological conditions and whether these constituted a "disease" or an "injury other than a disease" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Secondly, the Tribunal had to consider the issue of causation, specifically whether the Applicant's psychological conditions were contributed to, to a significant degree, by her employment. This involved assessing the Applicant's evidence regarding the onset and progression of her psychological symptoms in relation to her accepted knee injury and the impact of that injury on her life. Finally, the Tribunal had to consider whether the Applicant had made any wilful and false representations that she did not previously suffer from a psychological condition, applying the stringent *Briginshaw* standard.

In its reasoning, the Tribunal accepted the Applicant's evidence and the opinions of her treating medical professionals, including Ms Bell and Ms Roberts, who diagnosed her with conditions such as Major Depressive Disorder, Generalised Anxiety Disorder, and Adjustment Disorder, all secondary to her chronic pain and the consequences of her knee injury. The Tribunal found that the Applicant's psychological conditions were not pre-existing but had developed as a direct result of the accepted physical injury and its ongoing impacts. The Tribunal applied the *Briginshaw* standard, requiring a high degree of satisfaction for a finding of wilful and false representation, and concluded that the evidence did not support such a finding. The Tribunal determined that the Applicant's psychological conditions were an "injury other than a disease" and that her employment had contributed to these conditions to a significant degree.

Consequently, the Tribunal set aside the Reviewable Decision and substituted it with a new decision that Comcare is liable to pay compensation to the Applicant under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The case law and Tribunal decisions which are relevant to these provisions are discussed under the relevant headings below. APPLICANT’S EVIDENCE The Applicant gave evidence on the first day of the hearing. The Applicant was self-represented, with the assistance of her partner. As with many self-represented persons, the distinction between submissions and evidence is sometimes blurred, and at times her written submissions doubled as evidence. The Applicant was sworn in at the commencement of the hearing, and the Tribunal has referred to both the Applicant’s submissions and her evidence at the hearing where relevant. Notwithstanding that the Applicant was self-represented; her written and oral submissions were logical, clearly expressed and detailed, with references to the evidence which supported her submissions where relevant. At the time of the hearing, the Applicant stated that she was working five hours a day, four days per week, being a total of 20 hours a week (transcript, page 32). The Applicant submitted that her psychological conditions were a direct result of her knee injury. She stated that, “I was psychologically asymptomatic prior to my knee injury. Following my workplace injury, I developed a psychological disorder secondary to chronic pain and significantly reduced function of my left leg” (Exhibit A1, paragraph [3.1]). In Exhibit A1 at paragraph [2.32], the Applicant stated:Prior to my knee injury, I was psychologically asymptomatic. Following my knee injury, I developed my current anxiety, stress and low mood symptoms as a direct result from my chronic pain, significantly reduced function of my leg, loss of independence and enjoyment in life… And further (Exhibit A1 at paragraph [2.107]):My accepted comprehensible physical injury has significantly impacted all areas of my life for 2 ½ years, and ongoing. I still exhibit existing physiological injury in my left knee from which the pain stems. I still have significantly reduced function of my left leg and chronic pain because of my workplace injury. My knee injury requires me to pace every activity in all areas of my life and I require assistance with many activities of daily living. I cannot kneel, squat, sit cross-legged, jump, run, walk more than a short distance, have difficulty with stairs, cannot walk on the sand … In an impact statement dated 18 February 2018, the Applicant stated (Exhibit A4, page 9):The workplace injury on 6 December 2016 has negatively and significantly affected all areas of my life. Some of the other ways in which my knee injury has impacted my life are as follows:·I am in chronic pain every day, with varying intensity of pain;·I have significantly reduced function of my left leg which prevents me from being able to do a lot of things - I cannot kneel on my left leg, squat, jump or run;·I have an antalgic gait due to my knee injury;·I have lost my independence as I rely on my partner and family to help with a lot of tasks, such as most household tasks, which I can no longer do because of my knee injury;·I do not have the capacity to work my pre-injury full-time hours or role and I am treated differently and unfairly at work because of this;·I am not able to engage in my usual leisure activities, such as walking on the beach, engaging in my hobby of photography in the way that I used to, or attend events which require a lot of walking around (e.g. expos, the zoo, festivals, etc.);·I cannot walk more than a few hundred metres without increased swelling and pain;·I have clinical insomnia from the sleep deprivation caused by my chronic pain;·I have gained 15 kilos due to my significantly reduced mobility;·All of this has affected my self-esteem;·I have chronic stress from my knee injury and its impact on all areas of my life; and·I have a diagnosed Adjustment Disorder with mixed anxiety and depression secondary to my knee injury.

Decision

Reasons for decision

On 9 November 2017, the Respondent issued a determination that affirmed the determination dated 8 September 2017 (T32.1, pages 277-278). This is the Reviewable Decision currently before the Tribunal. In a letter dated 17 November 2017 (T35, pages 290-291) Mr Semmens stated that had seen the Applicant for 10 sessions, but that she had decided to cease the therapy with him because she wanted to see another psychologist. In the opinion of Mr Semmens, the Applicant displayed characteristics of “cognitive rigidity” and he referred to “her diagnosis of adjustment disorder” (T35, pages 291). In a report dated 14 December 2017, Dr Meyerkort recorded that as at December 2017, the Applicant’s work program was six hours per day, three days per week, and that the Applicant drove to work and had access to a parking bay close to her office (T38, page 303). After reassessing the Applicant on 5 December 2017, Dr Meyerkort recommended a graduated increase in the Applicant’s working hours with a restriction for a six week period to avoid prolonged standing and to avoid standing or walking for longer than 10 minutes (T38, pages 307-308). In a letter dated 13 February 2018, Ms Bell wrote (Exhibit A18):There are many aspects of [YNCJ’s] life which have been directly affected by her injury. The injury has led to development of chronic pain, loss of function, poor sleep, weight gain, stress, anxiety and low mood. This has affected [YNCJ’s] life in the following ways: loss of independence, loss of intimacy and changing the nature of her relationship, loss of self-esteem, inability to attend work at usual capacity, inability to manage her home in the way she did previously, and inability to engage in usual leisure activities such as walking on the beach, photography and attending events.…In summary, I support [YNCJ’s] secondary claim, and believe that the work-related knee injury has been a significant contributor to the development of an adjustment disorder. If she had not had the knee injury, and all of the aforementioned consequences, she would not be experiencing an adjustment disorder at this time. The letter from Ms Bell dated 13 February 2018 (Exhibit A18) also stated that the Applicant was “particularly distressed” at being able to travel to [country name omitted] to see her grandmother before she passed away and that she had “noted a significant decline in her mood as a result of this”. Ms Bell then noted in this letter that the Applicant “directly tributes her inability to travel to [country name omitted] to her injury”. In a letter dated 6 March 2018 (Exhibit A14; Exhibit A3, Appendix D), Ms Roberts provided the following assessment of the Applicant:She has tears to her medial lateral menisci of her left knee resulting in chronic pain. In addition she meets the DSM5 criteria for 296.32 Major Depressive Disorder Recurrent (moderate) and 300.02 Generalised Anxiety Disorder, both of these are secondary to her chronic pain. She also displays signs of adjustment disorder and clinical insomnia.

Ratio Decidendi

Legal Principle Established

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