ZJQL and Comcare (Compensation) - [2021] AATA 2229

ZJQL and Comcare (Compensation) [2021] AATA 2229 (30 June 2021)
Division:GENERAL DIVISION
File Number(s): 2017/4669, 2017/4670, 2017/4671, 2017/4672, 2017/4673, 2017/4675, 2017/4676, 2017/4678, 2017/4680 and 2017/4681
Re:ZJQL
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:The Hon. Matthew Groom, Senior Member
Date:30 June 2021
Place:Melbourne

The decision under review in respect of each of the applications is set aside and each matter is remitted to Comcare to give effect to the findings of the Tribunal as set out in the reasons to this decision.
............................[sgd]............................................
The Hon. Matthew Groom, Senior Member
Catchwords
COMPENSATION – entitlement to compensation – review of determinations of entitlement to compensation relating to accepted work sustained injury – consideration of capacity to work during the relevant periods – consideration of normal weekly hours and normal weekly earnings – decisions under review set aside and remitted for reconsideration
Legislation
Safety Rehabilitation and Compensation Act 1988
Cases
Menz and Border Express Pty Ltd, Re [2012] AATA 203
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
30 June 2021
Introduction

This matter involves a review of a decision made by a delegated review officer of the respondent dated 7 June 2017 which varied a series of 10 separate determinations dated 12 October 2016, 23 November 2016, 4 January 2017, 5 January 2017, 18 January 2017, 1 February 2017, 1 March 2017, 15 March 2017, 29 March 2017 and 12 April 2017. Each of the determinations relate to the payment of compensation to the applicant for incapacity during the period from 22 August 2016 to 1 March 2017. The payments relate to a claim for intracranial injury, superficial injury to face, neck, & scalp and post-traumatic stress disorder sustained on 9 November 2015 liability for which was accepted under section 19 of the Safety Rehabilitation and Compensation Act 1988 (“Act”).
In making her decision the delegated review officer accepted that the applicant’s normal weekly hours (“NWH”) for the purpose of calculating incapacity entitlements in accordance with the Act were 17 hours and 53 minutes per week. The NWH were also described in the delegate’s decision as being 17.88 and 17.89 hours per week. The delegated review officer found that the for the period between 22 August 2016 to 23 November 2016 the applicant suffered partial incapacity on the basis that he was fit to work between 10 and 15 hours per week but less than his NWH. The delegated review officer found that for the period from 24 November 2016 to 1 March 2017 the applicant was fit to work a number of hours in excess of his NWH and as such was not entitled to incapacity payments in respect of that period.
On 3 August 2017 the applicant sought a review of the delegated review officer’s decision of 7 June 2017 which is the matter presently before this Tribunal.
Background Facts
The applicant was employed on a contract basis through TIS National as an interpreter for the Department of Immigration…

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 ZJQL and Comcare (Compensation)

Details

AGLC: ZJQL and Comcare (Compensation) [2021] AATA 2229
Case: [2021] AATA 2229
Decision Date: 30 June 2021

CaseChat Overview and Summary

This matter concerned an application by the applicant for a review of a delegated review officer’s decision regarding his entitlement to compensation. The applicant, employed as an interpreter through TIS National for the Department of Immigration and Border Protection, sustained injuries on Nauru when he was hit in the head with a rock. His accepted conditions included intracranial injury, superficial injury to the face, neck, and scalp, and post-traumatic stress disorder. The dispute centred on whether the applicant suffered incapacity for employment between 22 August 2016 and 1 March 2017, which would render Comcare liable to pay compensation.

The Tribunal was required to determine the applicant's capacity to work during the specified period and whether this incapacity arose from his accepted work-related conditions. This involved considering medical evidence regarding his post-concussion syndrome and post-traumatic stress disorder, and assessing whether his diagnosed capacity to work 20 hours per week, as certified by his GP, exceeded his normal weekly hours for the purpose of calculating incapacity payments. The Tribunal also needed to address the applicant's history of a previous diagnosis of post-traumatic stress disorder.

The Tribunal's reasoning focused on the medical assessments provided, particularly by Dr. Jennifer Majoor, a consultant psychiatrist. Dr. Majoor concluded that the applicant was suffering from post-traumatic stress disorder, which was triggered by the Nauru incident, although he had an underlying vulnerability due to a previous diagnosis. She advised that the applicant was not currently fit for any work due to his symptoms and recommended further medical and psychological treatment, followed by a graduated return to work plan. The Tribunal found that the applicant's capacity to work was limited by his accepted conditions.

Consequently, the Tribunal set aside the decision under review. The matters were remitted to Comcare for recalculation of the applicant's normal weekly hours, applying a 12-month averaging period, and to confirm his incapacity payments entitlement based on the Tribunal's findings regarding his work capacity.

Orders

Orders of the court

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Background

Background to the litigation

On 3 August 2017 the applicant sought a review of the delegated review officer’s decision of 7 June 2017 which is the matter presently before this Tribunal.Background Facts The applicant was employed on a contract basis through TIS National as an interpreter for the Department of Immigration and Border Protection (the “Department”) under a Deed of Standing Offer. The applicant provided interpreter services to the Department on an as needs basis at various locations both within and outside of Australia and both by telephone and in person. At the time of his injury the applicant was providing interpreter services to the Department on the island of Nauru as part of a proposed eight-week deployment. On 9 November 2015, the applicant was hit in the head with a rock. Following the incident the applicant attended a medical clinic on Nauru located at Nauru Public Hospital. The applicant was subsequently repatriated back to Melbourne (the “Nauru incident”). On 13 November 2015, radiologist Dr Sarah Kremer reported the results of a CT scan on the applicant concluding that there was no evidence that the applicant had suffered a haemorrhage to his head. On 25 November 2015, the applicant made a claim for workers compensation in respect of “post concussion syndrome and psychological injury” resulting from the Nauru incident. The applicant was referred to neurologist Dr Catherine Stark for assessment. Dr Stark noted her conclusions in a report dated 9 December 2015 which states in part:[The applicant’s] symptoms are consistent with a post-traumatic headache. Given that remains a daily problem a month down the track, I think it is worthwhile putting on a prophylactic to try and settle things down. … I don’t think he needs any further imaging at this stage but were his symptoms to deteriorate, in particular with more prominent nausea or a position sensitive headache, I would have a low threshold for getting an MRI of brain. On 23 December 2015, the respondent made a determination that the applicant’s claim for “intracranial injury; and superficial injury of face, neck, & scalp” resulting from the Nauru incident was accepted and also confirmed its acceptance that the injury arose out of, or in the course of, the applicant’s employment. On 24 February 2016, the Department requested a reconsideration of the determination dated 23 December 2015 on the basis of what it claimed could potentially be a failure by the applicant to have disclosed a prior medical condition. On 24 March 2016, the respondent affirmed the determination of 23 December 2015. On 11 July 2016, the respondent accepted the applicant’s claim for psychological injury in the form of post traumatic stress disorder. On 1 December 2016, the respondent declined liability for compensation in respect of the claimed post-concussion syndrome. On 8 February 2017, the respondent wrote to the applicant giving notice of an intention to determine no present entitlement to further incapacity payments on the basis that the applicant had been deemed fit to work 20 hours per week by his GP, Dr Mann-Segal, in a medical certificate dated 13 December 2016. The respondent noted that the certified level of work the applicant was deemed capable of was in excess of the determined normal weekly hours for the purpose of calculating the applicant’s incapacity payments.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, the Tribunal considers it appropriate to set the decision under review aside and to remit the matters back to the decision-maker to recalculate the applicant’s normal weekly hours applying a 12 month averaging period and having regard to the matters identified in these reasons and then on the basis of that calculation confirm the applicant’s incapacity payments entitlement for the relevant period having regard to the Tribunal’s conclusions in relation the applicant’s work capacity as set out above.Decision The decision under review in respect of each of the applications is set aside and each matter is remitted to Comcare to give effect to the findings of the Tribunal as set out in the reasons to this decision.

Ratio Decidendi

Legal Principle Established

The issue for determination by the Tribunal is whether, during the period from 22 August 2016 to 1 March 2017, the applicant suffered incapacity from employment as a consequence of his accepted conditions of intracranial injury, superficial injury to face, neck, & scalp and post-traumatic stress disorder giving rise to a liability on the part of the respondent to pay compensation to the applicant in accordance with section 19 of the Act. Contentions and considerationFurther medical background The applicant was referred to consultant psychiatrist Dr Jennifer Majoor who provided a report dated 20 January 2016. In her report Dr Majoor made the following comments in relation to the applicant’s medical treatment and past medical history:…..[The applicant] stated that he is not on any regular medications. He stated he is taking Panadol for headaches. He stated that he sees his GP, Dr Daniel Mann-Segal when required. He stated that he has had one appointment with a psychologist, Roslyn, whose surname he could not recall and that he also saw another psychologist following the attack, whose name he could not recall, through his workplace.[The applicant] stated that he has seen a neurologist who diagnosed post-concussion syndrome, for one appointment and is due for a review appointment later this month...[The applicant] stated that he has no past medical history of note.[The applicant] stated that he was diagnosed with Posttraumatic Stress Disorder in 2006. He stated that this arose because he was tortured by authorities. He stated that he underwent psychological counselling for two years after he arrived in Melbourne and took antidepressants. He stated that he has lost contact with his previous psychologist and could not recall her name and that he could not recall the name of his antidepressant therapy. He stated that his symptoms included a fear of authorities and people in uniform and panic attacks. [The applicant] stated that his symptoms completely resolved following treatment and that they have not re-surfaced since his most recent attack.…[The applicant] … gives a history of a random and unprovoked assault causing a loss of consciousness. He has been diagnosed with post-concussion syndrome and in addition report symptoms of re-experiencing phenomena, avoidance and numbing of general responsiveness and symptoms of hyperarousal, sufficient to meet the criteria for a diagnosis of Post Traumatic Stress Disorder. I note that he has a history of a previous diagnosis of posttraumatic stress disorder, which he said had resolved prior to the onset of his current symptoms. Dr Majoor reached the following conclusions:… From a psychiatric viewpoint, I consider [the applicant] appears to be suffering from a posttraumatic stress disorder.He meets DSM-IV-TR criteria for this disorder as he was exposed to an incident that involved serious injury with his assault and his reaction was one of helplessness and horror. He suffers from intrusive distressing recollections and dreams. He also has persistence avoidance of stimuli associated with the trauma, with efforts to avoid thoughts and feelings associated with the trauma. He has decreased interest and participation in activities and emotional numbing and detachment from others. He has persisting symptoms of increased arousal with difficulty falling or staying asleep, hypervigilance and an exaggerated startle response irritability and difficulty concentrating.…[The applicant’s] condition of Post Traumatic Stress Disorder would appear to have a good prognosis. He appears highly motivated to return to work in his former occupation. I note that he has also received treatment for posttraumatic disorder in the past and reported a complete resolution of symptoms. He stated that he has already sought treatment for his condition and that he intends to pursue further psychological therapy... I did not identify aspects of the clinical examination tending to suggest that [the applicant] was voluntarily exaggerating symptoms, or displaying symptoms or examination findings inconsistent with the claimant condition.…[The applicant’s] employment would appear to have triggered the current episode of posttraumatic stress disorder as he stated that he was assaulted on Nauru Island during the course of his work, although it would appear that he had an underlying vulnerability to posttraumatic stress disorder given his previous diagnosis of posttraumatic stress disorder.… I would recommend trauma-based cognitive behavioural therapy of at least 16 – 20 sessions on a fortnightly basis involving systemic desensitisation to [the applicant] recurrent intrusive recollections and [the applicant’s] ongoing fears that cause him to be avoidant of public spaces.[The applicant] may also benefit from the commencement of antidepressant medication to assist with his mood and irritability and sleep disturbance. He may benefit from referral to a psychiatrist for optimisation of medication, especially in view of his post-concussion syndrome.…[The applicant] is not currently fit to engage in any type of work because of his symptoms of Post Traumatic Stress Disorder.… I would advise that [the applicant] undertake further medical and psychological treatment over the next two months and then engage in a graduated return to work plan.…[The applicant] is not currently capable of undertaking rehabilitation program because of the symptoms of his post traumatic stress disorder and he requires further medical and psychological treatment. I would advise that [the applicant] undertake a graduated return to work program, commencing at two days per week and increasing by one day per week until full-time hours have been achieved, in two months time, after seeking further treatment for his condition. I recommend that he undertake local interpreting contracts in the first instance and not undertake overseas contracts until full-time hours have been achieved and that this occurred in consultation and treatment providers.I recommend a further review should there be a delay in his achieving successful return to full time hours.