ZZRP and Comcare (Compensation) - [2018] AATA 2240

ZZRP and Comcare (Compensation) [2018] AATA 2240 (16 July 2018)
Division:GENERAL DIVISION
File Number: 2014/4443
Re:ZZRP
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment
Date:16 July 2018

Place:Sydney

The reviewable decision is set aside and the matter remitted to Comcare for the quantification of monetary entitlements of the applicant.
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Deputy President B W Rayment
Catchwords
COMPENSATION – whether applicant is still suffering the effects of his previous compensable condition – psychological condition – depressive disorder and anxiety state – claimed cause being workplace stress and bullying – found consistent pattern of diagnosis – reviewable decision set aside and remitted for quantification of monetary entitlements
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 16, 20
REASONS FOR DECISION
Deputy President B W Rayment
16 July 2018

On 20 May 2014, a review officer of Comcare decided that the applicant’s workers compensation payments should be terminated because he no longer suffered from any compensable condition, on the basis of a medical report commissioned by Comcare from Dr Burek, consultant psychiatrist. In the argument and evidence in this case, Comcare has raised a great number of other issues in support of the reviewable decision. The applicant has been examined by number of specialists, especially medico-legal specialists qualified by Comcare, who have mostly expressed conflicting views about him. He has also been hospitalised on two occasions over the relevant period, and the hospital notes have been produced on summons.
The applicant, who has been given a pseudonym without objection from the respondent for reasons which I indicated orally, applied for review of that decision. I must consider whether that decision was the correct or preferable decision, and if not, whether the applicant has entitlements under sections 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), in respect of the intervening period. I am not concerned with the quantification of any such entitlement.
The applicant was born in 1961, obtained accounting qualifications by 1984 from TAFE with some university subjects, and after spending time in various jobs, in 1999, he was employed by the Australian Taxation Office (ATO). He continued that employment until 2012, when he was retired on grounds of invalidity. He last worked in 2011.
He claimed workers compensation on 31 May 2011, and his claim was granted in July 2011, when Comcare had investigated to some extent, the allegations which he made about the events which took place during his employment, and had obtained a report from Dr Allnutt, consultant psychiatrist.
I will take his history insofar as it appears from the evidence in chronological order.
CHRONOLOGY OF THE APPLICANT’S CONDITION
I have heard from two persons who knew him before 2011. One of those persons is Mr Penman, a work colleague at the Tax Office. He described the applicant in the years prior to May 2011 (except the last month) as a good performer, stable, reliable and rational, and as a person to whom others went for help or advice.…

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 ZZRP and Comcare (Compensation)

Details

AGLC: ZZRP and Comcare (Compensation) [2018] AATA 2240
Case: [2018] AATA 2240
Decision Date: 16 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by ZZRP against a decision made by Comcare regarding compensation for a psychological condition. The applicant alleged that he suffered from a depressive disorder and anxiety state, which he claimed were caused by workplace stress and bullying. The court was required to determine whether the applicant was still suffering the effects of his previous compensable condition and the causal link between his psychological condition and his employment.

The court considered evidence regarding the applicant's employment history, including a period of back pain and his subsequent return to work, followed by an extended absence commencing in May 2011. The applicant asserted that he experienced bullying and harassment from a new supervisor, coupled with an unmanageable workload, leading him to believe he was being forced out of his job. The court found a consistent pattern in the applicant's diagnosis and his consistent account of these events to treating doctors and medico-legal specialists since 2011. Medical certificates from Dr Saunders described the applicant's condition as an anxiety state, attributing it to bullying and harassment by his manager. A psychiatrist, Dr Allnutt, also took a history of the workplace events and concluded that the applicant was manifesting symptoms consistent with a Depressive Disorder and anxiety, noting a deterioration in his mental state since the arrival of his new manager.

The court was not satisfied that alcohol use accounted for the applicant's condition or the workplace stresses. While some instances of cannabis use were noted in hospital records, the court found no evidence that this use affected his current or former condition, nor was it attributed as a cause by his treating doctor or others in regular contact with him. Consequently, the court set aside the reviewable decision and remitted the matter to Comcare for the quantification of the applicant's monetary entitlements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

He was unfit for work because of back pain until 11 April 2011 and then returned to work. About a month later in May 2011, he was off work and that was the last time he was at work. He first encountered the new supervisor with whom he had difficulties in late April. EVIDENCE BEFORE THE TRIBUNAL The investigations made by Comcare about his employment are described in the reviewable decision. The applicant alleges that he was bullied and harassed in the workplace over a period in 2011, and was required to do more work than he could manage. He apprehended that he was being forced out of his job. No primary evidence has been led before me by Comcare about those events in this proceeding, and the applicant was not cross-examined to suggest that his account of those events was not in substance correct. The applicant appears to me to have consistently maintained from 2011 to date, to treating doctors and medico-legal specialists that the events took place, and I see no reason not to accept that the events which led him to cease work involved substantially increased work pressure and involved what he regarded as bullying and harassment. The medical certificates from Dr Saunders from June 2011 until August 2011 and in the last quarter of 2012 describe the applicant’s condition as anxiety state, and the June and July 2011 certificates attribute the condition to “claimed bullying and harassment by new manager”. In a later note, he explained that his May 2011 medical certificate (which merely referred to a medical condition) was also granted by him because of the applicant’s anxiety state as a result of the claimed bullying and harassment. Dr Saunders’ note of 16 June 2011 suggests that the stress at work may have aggravated the anxiety he observed in October 2010. The workers compensation claim was lodged on 31 May 2011, and in July, he saw Dr Allnutt, a consultant psychiatrist to whom the applicant was referred by Comcare. Dr Allnutt took a history of the workplace events and noted that he had never abused drugs and was not abusing drugs when he saw him, and that he was not using alcohol. Dr Allnutt asked the applicant about domestic tension in 2010 and was told that it was: a domestic tiff with his partner who he could not find for four days,. He was extremely anxious about her but when he found out she had contacted his doctor he was relieved. The incident was over by Christmas. He denied experiencing any depressive anxiety symptoms thereafter, that is, prior to the workplace events of April/May. Dr Allnutt concluded: In my opinion, at the time that I saw [the applicant] he was manifesting symptoms consistent with a Depressive Disorder characterised by a depressed and anxious mood with disturbances in sleep, reduced appetite, energy, concentration, motivation, poor self-esteem, difficulties with decision making, loss of interest in activities and a degree of anhedonia. In addition to this, he was manifesting symptoms of anxiety with associated intermittent panic attacks characterised by dizziness, light headedness, sweatiness and shakiness these last having occurred approximately 2-3 weeks ago. There is no evidence of psychological distress until [the applicant’s] new manager came to his position and joined the ATO in about August 2010. Since then he describes deterioration in his mental state with the emergence of a number of depressive and anxiety symptoms.

Decision

Reasons for decision

As I have said, I am not satisfied that alcohol use accounts for his current condition or for the stresses he experienced in the workplace, and the evidence of daily cannabis use self-reported on the telephone in 2010 to the Queenscliff Community Health Centre may possibly have been falsely reported, as he rather suggested. The applicant has not self-reported any such use since that time, although it was a matter about which he was regularly asked. Some instances of cannabis use appear from hospital notes at the Manly Hospital, but his current condition is not attributed to that circumstance by his current treating doctor and is not reported by others who have been in regular contact with him. It does not appear from the evidence to my satisfaction that any such cannabis use affects his current or any former condition.DECISION In the result, the reviewable decision is set aside and the matter remitted to Comcare for the quantification of monetary entitlements of the applicant.

Ratio Decidendi

Legal Principle Established

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