Decisions fortnight ending 24 December 2010
Liability
Hatzigiakoumi and Comcare [2010] AATA 1016 (16 December 2010) Melbourne
The Applicant suffered a compensable injury on 24 April 2003 for which the Respondent accepted liability on 25 June 2003. The Applicant subsequently lodged a claim for compensation for permanent impairment on 4 February 2009 which the Respondent rejected on 22 July 2009. The Respondent reviewed that determination and affirmed it on 22 December 2009. The Respondent accepted that the Applicant suffered from a severe, disabling and permanent psychiatric condition but found that this was not related to the compensable event of 24 April 2003. Based on the preferred medical opinions, the Respondent attributed the disabling aggravation of the Applicant’s long-standing major depression to his failure to obtain a promotion in December 2006.
In its deliberations, the Tribunal considered it was clear that the Applicant suffering from a severe, incapacitating and permanent major depressive disorder. The question for the Tribunal was whether this resulted from the compensable event of 2003 or was due totally, or in part, to other non-compensable circumstances and events such as his pre-existing depressive illness, the aggravation of this condition in 2003 or his failure to gain a promotion in 2006 and a Code of Conduct investigation of 2007.
The Tribunal relied primarily on the contemporaneous clinical records of the Applicant’s treating general practitioners. Having regard to the available factual and medical evidence, the Tribunal found that the Applicant’s depressive disorder was precipitated by the medical confirmation of his HIV infection and had been endowed with increased severity by a multitude of stressors, albeit to varying degrees of severity, until the breach of the Code of Conduct enquiry in September 2007, which rendered his incapacity for work total and his impairment permanent.
The Tribunal had regard to the exclusionary provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) in this regard. Their findings as to the application of the exclusionary provisions to the Applicant’s claim are discussed below under “Exclusions”. Overall, the Tribunal considered section 5A of the 1988 Act operated to exclude the Applicant’s entitlement to compensation.
The Tribunal affirmed the decision under review.
Macedo and Comcare [2010] AATA 1037 (21 December 2010) Sydney
DibbsBarker successfully acted for the Respondent in these proceedings.
In these proceedings, the Applicant contended that he first suffered from a psychiatric condition in 1999. He had made four applications for review which concerned three incidents in particular which the Applicant contended gave rise to or aggravated his psychiatric condition:
(a) An incident in October 1999 in which the Applicant was allegedly reprimanded for attending training on a flex day. The Applicant alleged that this was an example of his supervisor’s failure to support him in obtaining training to carry out his duties.
(b) An incident in July 2006 when the Applicant was attending a “team huddle” in which the Applicant moved in order to better hear the speaker. He contended that a co-worker berated him for taking her position.
(c) An incident in May 2007 when the Applicant had returned to work to attend refresher training. He contended he had to leave the training session because he felt unwell and that, notwithstanding he was unwell, he was called to a meeting and reprimanded about his conduct in the training session.
The Tribunal outlined that the Applicant’s four applications for review were as follows:
(a) A review of decision dated 16 June 2008 that affirmed a decision of 21 January 2008 to reject a claim for depressive illness resulting from an alleged incident to have occurred on 15 May 2007;
(b) A review of decision dated 25 November 2008 that affirmed a decision of 28 July 2008 to reject a claim for medical treatment in respect of an accepted initial injury on 21 July 2006;
(c) A review of decision dated 25 March 2009 that affirmed a decision of 17 November 2008 to reject a claim for permanent impairment for depressive illness resulting from an incident of 21 July 2006;
(d) A review of decision dated 22 July 2009 that affirmed a decision of 8 May 2009 to reject a claim for depressive illness resulting from an incident in 1999.
From the matrix of incidents complained of by the Applicant and the applications for review made by him, the Tribunal noted that the following issues arose:
(a) In respect of the 1999 incident,
(i) was the Applicant’s psychiatric condition materially contributed to by his employment?
(ii) if so, was the Applicant’s disease a result of a failure to obtain a promotion, transfer or benefit in connection with the Applicant’s employment?
(iii) if not, did the effects of the injury continue?
(b) In respect of the 2006 incident,
(i) did the effects of the injury continue?
(c) In respect of the 2007 incident,
(i) was there an injury or aggravation?
(ii) if so, was it the result of reasonable administrative action?
(iii) if not, did the effects of the injury continue?
With respect to the 1999 incident, the Tribunal was satisfied that an incident took place in 1999 in which the Applicant attended an Excel course on a flex day and that he engaged in a conversation with his manager about it. The Tribunal accepted that the Applicant perceived that exchange to be a negative one and that he was distressed by it. The Tribunal noted that the medical opinion afforded by two psychiatrists indicated the Applicant to have an endogenous condition; however, they differed as to the significance of external events and the way in which they acted on a predisposition to psychiatric illness. Overall, the Tribunal was satisfied that the incident took place, that it “loomed large” in the Applicant’s perception and that it “precipitated” his condition to the extent of materially contributing to it: Wiegand v Comcare [2002] FCA 1464.
The Tribunal further considered the operation of the exclusionary provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) with respect to the 1999 incident. Their findings have been addressed below under “Exclusions”. In this respect, the Tribunal concluded that the Applicant’s psychiatric condition that resulted from this failure to obtain a benefit was excluded from the definition of “injury” and was therefore not compensable.
Regarding the 2006 incident, the Tribunal noted that the Respondent had accepted liability for the injury arising out of this incident on 21 July 2006. In the face of the available medical evidence, which included the reports of the Applicant’s treating psychiatrist, the Tribunal concluded that the effects of the injury had ceased by February 2007.
In terms of the 2007 incident, the Tribunal was satisfied that the incident affected the Applicant strongly. The Tribunal noted a report of one of the Applicant’s treating medical practitioners that following the incident the Applicant became very depressed and anxious and was not able to return to work. The Tribunal also had regard to the reports of the Applicant’s treating psychiatrist following the incident described a worsening of the Applicant’s symptoms. A report from another treating psychiatrist was noted to describe a settling of the symptoms that followed the incident but indicated the Applicant was affected by it. On the basis of this evidence, the Tribunal concluded that the incident gave rise to an aggravation of the Applicant’s condition.
The Tribunal also considered the operation of the exclusionary provisions of the 1988 Act with respect to the 2007 incident. Their findings have been addressed below under “Exclusions”. In this respect, the Tribunal concluded that the Applicant’s psychiatric condition that resulted from the subject meeting was reasonable, hence excluded from the definition of “injury” and was therefore not compensable.
The Tribunal affirmed all of the decisions which were under review.
Exclusions
Failure to obtain a benefit or promotion
Macedo and Comcare [2010] AATA 1037 (21 December 2010) Sydney
The relevant facts of this application are outlined above under “Liability”. In terms of the application of the exclusionary provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) to the Applicant’s claim regarding the 1999 incident, particularly those provisions concerning the failure to obtain a benefit or promotion, the Tribunal noted that while no specific promotion had been identified and while the Applicant did make mention of requiring training in English language skills and communication skills in order to perform his duties adequately, he also appeared to be concentrating on advancement and on the prospects for promotion generally.
In considering this issue, the Tribunal had regard to the decision of Mooi v Comcare (1996) 42 ALD 495 wherein the Federal Court held that a failure to obtain training for advancement is a failure to obtain a benefit for the purposes of the exclusion, but a failure to obtain training necessary to enable the person to perform the duties of the position is not.
Having regard to the Applicant’s circumstances, the Tribunal considered that the training he was disappointed to have not received was training for the purpose of advancement, possibly in addition to training that was essential to the requirements of his job. The Tribunal noted the Full Federal Court’s decision in Hart v Comcare [2005] FCAFC 16 to the effect that an exclusionary cause need not be the sole cause of injury in order to exclude. It followed that the psychiatric condition that resulted from the Applicant’s failure to obtain a benefit in 1999 was excluded from the definition of “injury” and was therefore not compensable.
Regarding the 2007 incident outlined above, the Tribunal considered that whilst it was possible that the subject meeting might have been conducted differently, or that it might have been conducted at another time, for example, the next day, it was mindful of management’s reasons for wanting to have the matter addressed that afternoon with more training scheduled and the possibility that the Applicant might not attend work the next day. Overall, the Tribunal was satisfied that the meeting in which the Applicant’s behaviour in the training session was raised was reasonable administrative action.
As to whether the action was taken in a reasonable manner, the Tribunal was mindful of discussions took place between management prior to the subject meeting and the consideration given to whether the Applicant could cope with the meeting. The Tribunal accepted that the available evidence indicated that management had observed the Applicant to be not distressed and to be working at his desk during the period before the meeting.
The Tribunal further noted that management made a decision to not involve an additional supervisor in the meeting because they wanted to keep the meeting more “one on one”. Overall, the Tribunal considered this to be a reasonable manner in which to take the action even though it recognised that the Applicant’s condition made him more vulnerable than most employees in this situation. Furthermore, the Tribunal was satisfied that care was taken by management to accommodate the Applicant’s vulnerability. It followed that the meeting was reasonable administrative action, that the injury was excluded by the operation of section 5A of the 1988 Act and that it was therefore not compensable.
The Tribunal affirmed all of the decisions which were under review.
Reasonable administrative action
Hatzigiakoumi and Comcare [2010] AATA 1016 (16 December 2010) Melbourne
The relevant facts of this application are outlined above under “Liability”. In terms of the application of the exclusionary provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) to the Applicant’s claim, the Tribunal highlighted the decision of Hart v Comcare [2005] FCAFC 16 (“Hart”). Notably, the Full Court of the Federal Court of Australia in Hart rejected the argument that the exclusion clause in the section 5A definition of “an injury” within the 1988 Act, which states that an injury does not include disease, injury or aggravation suffered as a result of reasonable administrative action, would not operate where the injury was due to several causes. The Court held that if reasonable administrative action was a material contributing factor in a multi-factorial disease aetiology, the exclusion operated.
Accordingly, the Tribunal found that the Applicant’s failure to gain promotion in December 2006 contributed to a significant degree to the aggravation of his depressive disorder. The Tribunal determined that the inquiry into the alleged breach of the Code of Conduct by the Applicant was a reasonable administrative action and the most significant factor in rendering his depressive disorder continuous rather than episodic, and thereby permanently incapacitating him for work. Therefore, according to the Full Court in Hart, the Tribunal considered section 5A of the 1988 Act operated to exclude the Applicant’s entitlement to compensation.
The Tribunal affirmed the decision under review.
Section 6A: Unintentional Consequences
No decisions.
Journey Claims
No decisions.
Jurisdiction
No decisions.
Procedure & Costs
No decisions.
Notice provisions & Time limits
No decisions.
Recovery of compensation
No decisions.
Incapacity
No decisions.
Permanent impairment
No decisions.
Medical expenses
Tarabay and Chubb Security Services Limited [2010] AATA 1044 (22 December 2010) Brisbane
DibbsBarker successfully acted for the Respondent in these proceedings.
The Applicant was previously employed by the Respondent during which time she processed cash, coin and other papers in a cash room located in a secure building. The Respondent accepted that the Applicant developed left shoulder and elbow conditions as a result of the repetitive work but it said those conditions had resolved. The Applicant alleged that the conditions were still present and she still experienced symptoms. The Applicant, therefore, asked the Tribunal to reconsider the Respondent’s determination that it was no longer liable to pay compensation to the Applicant under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) for whatever it was that ailed the Applicant.
Having regard to the witness evidence provided during these proceedings, the Tribunal acknowledged that there was some difference in the details of the evidence but the accounts of the Applicant and her employer were broadly similar, therefore, the Tribunal did not consider that much turned on the inconsistencies. In this regard, the Tribunal was satisfied the evidence established that the Applicant undertook repetitive work which occasionally required her to pull, drag or lift heavier loads.
The Tribunal then considered that the available medical evidence supported a finding that work of the kind undertaken by the Applicant could lead to shoulder and elbow problems. In this regard, the Tribunal highlighted that the bulk of the medical evidence before it suggested that the Applicant experienced problems with her left shoulder and elbow at some stage and that the problems were connected with her work. The Respondent certainly accepted liability on that basis, therefore the real issue for determination in these proceedings was whether those conditions persisted. In this respect, the Respondent contended that the Applicant’s conditions resolved and it argued that any ongoing symptoms the Applicant experienced were attributable to something else apart from the work she was doing, such that the Respondent was no longer liable.
Having regard to the totality of the evidence before it, the Tribunal did not disbelieve the Applicant’s account of her symptoms and it accepted she experienced ongoing pain. However, the Tribunal noted it had to be ultimately persuaded that the pain arose out of a condition that was causally connected to her workplace. In this respect, the Tribunal preferred the opinion of the orthopaedic surgeon relied upon by the Respondent, over that of the orthopaedic surgeon relied upon by the Applicant, given that his view appeared to be “squarely based on objective observations confirmed by the best diagnostic tool available”. The evidence of this orthopaedic surgeon said there was little, if any, objective evidence to support a finding that the Applicant continued to experience a work-related condition. Accordingly, the Tribunal considered that the Applicant’s pain, for now, was unexplained, such that she did not have an entitlement to compensation under section 16 of the 1988 Act.
The Tribunal affirmed the decision under review.
Rehabilitation
No decisions.
Aids and appliances
No decisions.
Household assistance
No decisions.
