ZDHG and Comcare (Compensation) - [2019] AATA 5028

ZDHG and Comcare (Compensation) [2019] AATA 5028 (28 November 2019)
Division:GENERAL DIVISION
File Number: 2017/7018
Re:ZDHG
APPLICANT
AndComcare
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:28 November 2019
Place:Sydney

The reviewable decision is affirmed.
.............................[SGD]...........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Applicant employed by the Australian Federal Police –Applicant served in domestic and international deployments between 2007 and 2014 – Applicant accepted voluntary redundancy in August 2014 - whether Applicant suffers from PTSD which was significantly contributed to by employment with Australian Federal Police - consideration of contemporaneous evidence – Applicant’s medical evidence post voluntary redundancy fails to adequately consider contemporaneous evidence of the Applicant’s employment with Australian Federal Police – reviewable decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
28 November 2019
Reviewable decision

On 14 August 2017 the Applicant completed a form seeking compensation for psychiatric injury caused by the nature and conditions of his employment with the Australian Federal Police (AFP) between 2007 and his voluntary redundancy (VR) taking effect on 29 August 2014. On 27 October 2017, Comcare (the Respondent) denied liability for post traumatic stress disorder (PTSD) That decision was affirmed on 23 November 2017. The Applicant has applied for review of the 23 November 2017 decision (the reviewable decision).
On 13 August 2018, the Tribunal dismissed five related proceedings following written notification that the Applicant wanted to withdraw them.
The issues
There is no dispute that the Applicant suffers from a mental ailment. Diagnoses differ.
The Applicant’s position was that he suffers from PTSD which was contributed to, to a significant degree, by his employment by the AFP.
The Respondent’s case is that the Applicant suffers from a different condition, major depressive disorder.
On the final day of hearing, in written submission, the Applicant’s counsel had sought to broaden the argument to include any mental ailment, and not just PTSD. The Respondent had conceded that the Applicant suffered a mental ailment based on the claim for PTSD. The Applicant’s case was confined to the claim for PTSD.
The legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
Background
The Applicant was born in 1963. He served in a state police force from 1998 to early 2007 when he joined the AFP. He served in the International Deployment Group (IDG). The deployments relevant to this decision were:
(i)Mid-September 2007 to mid-September 2008 in south-east Asia;
(ii)Early January 2009 to late April 2009 in Australia (2009 operation);
(iii)16 November 2009 to 28 June 2010 in North Africa;
(iv)Mid-May 2011 to mid-May 2012 in a Mediterranean country;
(v)December 2013 to mid-August 2014 in a Pacific country.
The Applicant described traumatic incidents and conditions he had experienced during his service in south-east Asia, Australia, North Africa, and the Pacific, which he contended had caused his mental ailment.
During the arrest of a violent offender in Australia in early…

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 ZDHG and Comcare (Compensation)

Details

AGLC: ZDHG and Comcare (Compensation) [2019] AATA 5028
Case: [2019] AATA 5028
Decision Date: 28 November 2019

CaseChat Overview and Summary

This matter concerned an application for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) by an applicant employed by the Australian Federal Police (AFP). The applicant, who served in domestic and international deployments between 2007 and 2014, claimed to suffer from Post-Traumatic Stress Disorder (PTSD) which was significantly contributed to by his employment. The respondent, Comcare, denied liability for PTSD.

The central legal issue before the Tribunal was whether the applicant's alleged PTSD was a condition that arose out of, or in the course of, his employment with the AFP, and whether it was significantly contributed to by the nature and conditions of that employment. This required the Tribunal to consider the applicant's various deployments, alleged traumatic incidents, and the contemporaneous evidence of his psychological state and experiences during his service, as well as the medical evidence presented post-employment.

The Tribunal reasoned that the post-voluntary redundancy medical evidence, while supporting a diagnosis of PTSD, failed to adequately consider the contemporaneous evidence from the applicant's period of employment with the AFP. It noted that the applicant had recovered from earlier symptoms and continued to work without further reported issues, including on subsequent deployments. The Tribunal also considered the applicant's motivations for joining the AFP and his satisfaction with certain deployments, alongside his long-standing grievances about leadership and colleague behaviour. Ultimately, the Tribunal did not accept the diagnosis of PTSD as arising from his employment and found that the applicant was not entitled to compensation under section 14 of the SRC Act.

Accordingly, the Tribunal affirmed the reviewable decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).Background The Applicant was born in 1963. He served in a state police force from 1998 to early 2007 when he joined the AFP. He served in the International Deployment Group (IDG). The deployments relevant to this decision were: (i)Mid-September 2007 to mid-September 2008 in south-east Asia;(ii)Early January 2009 to late April 2009 in Australia (2009 operation);(iii)16 November 2009 to 28 June 2010 in North Africa;(iv)Mid-May 2011 to mid-May 2012 in a Mediterranean country;(v)December 2013 to mid-August 2014 in a Pacific country. The Applicant described traumatic incidents and conditions he had experienced during his service in south-east Asia, Australia, North Africa, and the Pacific, which he contended had caused his mental ailment. During the arrest of a violent offender in Australia in early 2009, the Applicant suffered physical injuries for which the Respondent accepted liability (the 2009 incident). The Respondent denied liability for PTSD as a result of that incident. The Applicant was attacked by dogs while restraining the offender. During his deployment in the Pacific in 2014, the Applicant claimed that he was grabbed on the buttock by a colleague on 22 March 2014 while in a group listening to a visiting dignitary’s speech (the 2014 incident). The Respondent accepted liability for adjustment reaction with anxious mood (unspecified) and later determined that the Applicant had no present entitlement to compensation under sections 16, 19 and 29 of the SRC Act. The Applicant complained about the toxic culture among his colleagues during that deployment. The contemporaneous evidence from entry into the AFP until the offer of VR Following is a summary of the contemporaneous evidence from when the Applicant entered the AFP until he was offered VR on 5 May 2014. AFP Wellbeing Services provided records from 14 August 2007 to 31 August 2015 that included several psychological assessment forms, psychological debriefs and case notes. In the documents relating to the psychological debrief dated 14 September 2008, completed after his first deployment, the Applicant attributed “moderate stress” to behaviour of “other mbrs!!” and “separation from family and friends”. He categorised other stressors as causing “no stress” or “slight stress”. The psychologist recorded the Applicant’s motivation for deployment as:1Joined to get to (Mediterranean country)2Overseas work3Premier police service The desire to be deployed to the Mediterranean country was repeated in the form, including that his family could go and his motivation for joining the police was seeing police deploy to that country when he was younger. Skills he considered had increased included “cultural appreciation – lots of nations involved”. The notes in relation to negatives of deployment listed:1behaviour of others – cultural insensitivity! - inappropriate behaviour 2Inappropriate actions3AFP hierarchy – DET 16

Evidence

Evidence Before The Court

During his deployment in the Pacific in 2014, the Applicant claimed that he was grabbed on the buttock by a colleague on 22 March 2014 while in a group listening to a visiting dignitary’s speech (the 2014 incident). The Respondent accepted liability for adjustment reaction with anxious mood (unspecified) and later determined that the Applicant had no present entitlement to compensation under sections 16, 19 and 29 of the SRC Act. The Applicant complained about the toxic culture among his colleagues during that deployment. The contemporaneous evidence from entry into the AFP until the offer of VR Following is a summary of the contemporaneous evidence from when the Applicant entered the AFP until he was offered VR on 5 May 2014. AFP Wellbeing Services provided records from 14 August 2007 to 31 August 2015 that included several psychological assessment forms, psychological debriefs and case notes. In the documents relating to the psychological debrief dated 14 September 2008, completed after his first deployment, the Applicant attributed “moderate stress” to behaviour of “other mbrs!!” and “separation from family and friends”. He categorised other stressors as causing “no stress” or “slight stress”. The psychologist recorded the Applicant’s motivation for deployment as:1Joined to get to (Mediterranean country)2Overseas work3Premier police service The desire to be deployed to the Mediterranean country was repeated in the form, including that his family could go and his motivation for joining the police was seeing police deploy to that country when he was younger. Skills he considered had increased included “cultural appreciation – lots of nations involved”. The notes in relation to negatives of deployment listed:1behaviour of others – cultural insensitivity! - inappropriate behaviour 2Inappropriate actions3AFP hierarchy – DET 16 The psychologist noted that the Applicant was quite disappointed at the behaviour of other contingent members and spent time talking about it but did not wish to give names or specific details. His wife had sought counselling but had not been contacted but the family was doing well. The Applicant had returned home every seven to eight weeks. He also repeated that the Applicant “would love to get (the Mediterranean country)”. The psychologist’s notes concluded:Time taken today to allow his concerns with other mbrs to be expressed – as well as reviewed 2 personal incidents that he recalled. NAD now though. “NAD” is understood to be an abbreviation of “no abnormality detected”. One of the incidents referred to was the death of a small child from snakebite. The child was the same age as the Applicant’s son. A clinical note from the Applicant’s then general practitioner (GP) dated 16 September 2008 stated:12/12 stint (in the south-east Asian country) arrived 4/7 ago 6/52 ago palpitations when low K+ ;had cardiac Ix – all neg ;short term Rx with b blocker /K+ ;also felt presyncopal at time similar presyncope today at restaurant – came here ;some feeling anxietySome vague GIT Sx -took giardia RX recentlyposs anxiety discussed tho says (deployment) positive;… ventilated poss anxiety – open to possibility –see pm

Decision

Reasons for decision

The Tribunal does not accept the diagnosis of PTSD. The Applicant is not entitled to compensation under s 14 of the SRC Act for PTSD as a result of “the nature and conditions of his employment with the AFP” from 2007 to 2014, namely a number of alleged traumatic incidents while on various deployments abroad and within in Australia.Decision For the above reasons, the reviewable decision is affirmed.

Ratio Decidendi

Legal Principle Established

Dr Kim reviewed the Applicant on an urgent basis on 11 December 2018. He was shocked by the suicide of a former colleague a few days before. He was not sure if he could focus on the inpatient program that he was to be admitted to the day before. He reported that he had suffered a panic attack on the way to the appointment after helping an elderly man who was very unwell. Dr Kim wrote that that was a good example of his current state and how his PTSD has impacted on his functioning. She strongly disagreed with Dr Lovell’s comment about narcissistic personality traits. In her opinion, the Applicant meets the full diagnostic criteria for PTSD and associated depression and high level of anxiety in the context of his AFP service and lack of support there. Consideration The overwhelming body of post VR medical evidence supports a finding that the appropriate diagnosis is PTSD and that it was caused by the various traumatic incidents the Applicant reported had occurred while on various deployments, including in 2009. Associate Professor Robertson, who supported that opinion, gave oral evidence. He maintained his opinion. That evidence fails to adequately consider the contemporaneous evidence from the Applicant’s first deployment until his VR took effect. Ms Lilley’s evidence was that he recovered from the 2009 PTSD symptoms. He worked thereafter without further symptoms, including on several overseas deployments. He consulted Ms Lilley in 2014 after the 2014 incident and in relation to the offer of VR, which suggests that if he had needed professional psychological assistance after 2009 he would have sought it, and he found making the VR decision very difficult. He also sought the assistance of his GP in relation to making that decision, which reinforces the latter finding. He tried to withdraw his acceptance of VR and has repeatedly stated in various ways that he regretted his decision. He has said if he had been single he would not have accepted VR. The evidence shows that Applicant’s work as a policeman was his identity. He had worked as a policeman at the state and federal levels for 16 years. He held the AFP in very high regard and was very proud to serve as a member. Serving in the Mediterranean country was his reason for joining. Achieving that goal was his most satisfying deployment. The evidence shows that the Applicant had long standing grievances about:·the failure of AFP leadership;·the behaviour of his colleagues on deployment;·the lack of recognition and support he received from his commanders;·his lack of promotion to team leadership. He expressed those grievances in relation to the pre-March 2014 experiences on deployment in the Pacific and the 2014 incident. The pre-VR evidence shows that the Applicant’s family was paramount. His son had suffered problems at least from the North African deployment, and more seriously in 2013 before the Pacific deployment, when the Applicant also suffered physical health issues which caused him stress.