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McKenzie and Military Rehabilitation and Compensation Commission [2010] AATA 275 (20 April 2010) Canberra

During military service, the Applicant suffered a number of physical injuries principally due to the demands of physical training. The Respondent accepted liability for injury to her right ankle, left wrist, both knees, lumbar spondylosis, cervical spondylosis, bursitis in the left shoulder, and adjustment disorder. Permanent impairment claims were accepted for her cervical spine condition, her lumbar spine condition and her left knee condition. Subsequently, liability was accepted for her right knee condition and for her left wrist and shoulder. However, incapacity payments for her other physical injuries and her adjustment disorder ceased in November 2008.

In this matter, there were two proceedings, the first for compensation for incapacity under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘1988 Act’) for the adjustment disorder from 18 September 2007, an application rejected by Comcare on 5 February 2008. That decision was upheld on review on 16 December 2008. The second sought compensation for permanent impairment for adjustment disorder with depressed mood in accordance with section 24 and 27 of the 1988 Act, a decision on which was deferred by the Respondent on 6 August 2007, and varied on review on 21 February 2008 to deny liability for permanent impairment and non-economic loss. The issues regarding the Applicant’s entitlement to incapacity payments are addressed under ‘Incapacity’ and the issues in the Applicant’s second proceeding are addressed under ‘Permanent Impairment’ below.

The Tribunal dealt with the two applications separately. From the outset, the Tribunal noted that if there was no liability by the Respondent for incapacity for the adjustment disorder because it was a new condition, but was not an injury because it was due to failure to obtain promotion, there could be no liability of the Respondent for permanent impairment.

On the medical evidence before it, the Tribunal was satisfied that the Applicant suffered an ‘ailment’, that is, a ‘mental disorder, defect or morbid condition (whether of sudden onset or gradual development’ on 18 September 2007. Therefore, the Applicant’s condition in September 2007 was a ‘disease’ and hence an ‘injury’ for the purposes of sections 5A and 5B of the 1988 Act.

The Tribunal considered it was clear that the condition which arose on 18 September 2007 was of an intensity the Applicant had not previously experienced. The next issue, therefore, was whether it was a new injury, namely, major depressive disorder, or an aggravation of an existing ailment, namely, an adjustment disorder. On balance, the Tribunal found, based on the predominant view of the medical experts and on the oral and written evidence, that the Applicant’s psychological reaction in September 2007 was the ‘culmination of a long period of contending with pain and disability from her numerous physical difficulties, as well as various disappointments in her employment, including failures to obtain promotion’. The September 2007 reaction was not an isolated and discrete injury, but was an exacerbation or aggravation, that was an acceleration or recurrence, of her previous condition.

On the factual and medical evidence before it, the Tribunal was further satisfied that the Applicant’s employment was a major contributing factor to her psychological condition, regardless of various non-work related factors. Therefore, it found that her adjustment disorder was contributed to, to a significant degree, by her employment.

The next issue was whether the Applicant’s disease was 'suffered as a result of reasonable administrative action' namely, 'anything reasonable done in connection with her failure to obtain a promotion' or whether the condition was multi-causal and the promotion failure only played a less significant part overall in the resulting condition. The Tribunal found that the substantial cause of the Applicant’s adjustment disorder was not the failure to obtain yet another promotion, but rather was the result of the cumulative effect of her physical injuries, her depression, and her disappointments in her employment. This issue is addressed in more detail under ‘Reasonable Administrative Action’ below.

On the above findings, the Tribunal established that the Respondent was liable pursuant to section 14 of the 1988 Act because the Applicant’s adjustment disorder was an injury as an aggravation of her previously accepted psychological disorder. This finding led the Tribunal to consider issues regarding the Applicant’s entitlement to compensation for incapacity payments and permanent impairment, which is discussed below.

The Tribunal set aside the decision under review and remitted the issue of whether the Applicant’s adjustment disorder was a permanent injury which met the 10 percent threshold under Table 5.1 of the Comcare Guide back to the Respondent.

Moronski and Comcare [2010] AATA 277 (20 April 2010) Canberra

DibbsBarker successfully represented the Respondent in these proceedings.

Many years ago, Dr Moronski (‘the deceased’) successfully claimed compensation for work-related depression. He was medically retired as a result of that condition some years later. He did not work again. Dr Moronski died suddenly in April 2006. His death was attributed to ischaemic heart disease, although no post mortem investigations were undertaken. Subsequently, the deceased’s wife (‘the Applicant’) and her daughter claimed compensation for her husband’s death, asserting that the deceased abused alcohol, he became socially isolated, physically inactive and morbidly obese as a result of his work-caused depression, and these factors contributed to the disease that caused his death. The Respondent rejected the claim, deciding that his death and the disease that caused his death were not work-related. On reconsideration, both determinations were affirmed. Unhappy with this result, the Applicant requested review of these decisions.

Two reviewable decisions arose from the Applicant’s claim for compensation for her husband’s death and both matters were dealt with in these proceedings. The Respondent dealt with her application in two separate determinations, one concerning ischaemic heart disease as a fresh injury under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘1988 Act’) and the other concerning death under section 17 of the 1988 Act.

The issues for determination by the Tribunal were as follows:

1. Did the deceased suffer a compensable psychological injury?
2. Did the injury materially contribute to ischaemic heart disease, giving rise to a fresh injury?
3. Did the injury or injuries result in his death?

In relation to the first issue, the Tribunal was satisfied that the deceased suffered a depressive disorder that commenced or emerged in 1987 on the weight of the medical evidence before it. In relation to causative matters, the Applicant asserted that the deceased’s injury was caused by work stress and conflict his supervisor. On the totality of the evidence before it, the Tribunal was satisfied that the deceased had formed adverse perceptions about events that occurred involving his supervisor which ‘preyed upon his mind and contributed to aggravate the symptoms of his depressive disorder in December 1987’. For these reasons, the Tribunal found that the aggravation of the deceased’s depressive disorder constituted an injury under the Compensation (Commonwealth Government Employees) Act 1971 (Cth).

The Tribunal jointly considered the second and third issues. The Applicant submitted that her husband’s ischaemic heart disease and his death were the result of the psychological injury he suffered at work. She raised a number of grounds: the disease or the death was the result of depression, or pharmacological treatment for depression, or psychosocial changes in his lifestyle and behaviour, or medical conditions relating to such changes.

In sum, the Tribunal highlighted that there were two reasons why it concluded that the deceased’s psychological injury did not materially contribute to the ischaemic heart disease or result in his death. The first was that the nature of the injury was in the form of an aggravation; the Tribunal was satisfied that the aggravation was transient with only a temporary effect. The second was that, even if the Tribunal was wrong on this first ground, there was insufficient probative evidence to establish a causal chain between the deceased’s injury and his ischaemic heart disease or his death.

In relation to the first ground, the Tribunal was reasonably satisfied that the aggravation of the disorder by factors in the deceased’s former employment in December 1987 was in all likelihood of a transient nature, with a temporary effect, considering the manner in which the deceased’s depression emerged and progressed, especially after he left work in March 1988, and the long duration of that disorder thereafter. Regarding the second ground, the Tribunal found that the first proposed causal chain linking the deceased’s work-related injury and his subsequent development of ischaemic heart disease was not established on the balance of probabilities. This assertion failed at the first link in the causal chain concerning lifestyle changes. In this regard, the Tribunal noted that even if it accepted that the deceased’s lifestyle and behaviour changed after he left work, his social withdrawal, difficulties in his marriage, his nocturnal and sedentary habits, his obsessive behaviours concerning water, diets and health, and his consumption of alcohol and unhealthy food were not attributable to the aggravation injury he suffered in employment.

The Tribunal highlighted that the deceased was exposed to a number of risks of significance some of which were clearly not related to his previous employment, and, it was not possible on the available evidence to differentiate the relative importance of the risk factors to which he was exposed in causal terms. The Tribunal indicated that to go further would have entered into speculation about changes in the deceased’s lifestyle and his behaviour, and about the causes of his heart disease and his death.

Therefore, the proposition that the deceased’s ischaemic heart disease and his death resulted from a work-related injury was not made out to the reasonable satisfaction standard. For that reason, the Tribunal found no liability against the Respondent to compensate the Applicant for her husband’s ischaemic heart disease or his death under sections 14 and 17 of the 1988 Act.

Exclusions

Reasonable administrative action

McKenzie and Military Rehabilitation and Compensation Commission [2010] AATA 275 (20 April 2010) Canberra

One of the issues for the Tribunal was whether the Applicant’s disease was 'suffered as a result of reasonable administrative action' namely, 'anything reasonable done in connection with her failure to obtain a promotion' or whether the condition was multi-causal and the promotion failure only played a less significant part overall in the resulting condition. Through applying the reasoning in Re Carpenter and Comcare [2010] AATA 62 which construed the expression of ‘as a result of’ in a way that was beneficial to the injury employee, the Tribunal found that the events of September 2007 were not the substantial cause of the Applicant’s departure from the workforce. Rather, they were ‘only the straw that broke the camel’s back’. It was the Tribunal’s view, on the evidence, that the predominant proportion of the Applicant’s disabling conditions originated during her service in the armed forces. In particular, the Tribunal found that the substantial cause of the Applicant’s adjustment disorder was not the failure to obtain yet another promotion, but rather was the result of the cumulative effect of her physical injuries, her depression, and her disappointments in her employment.

This finding contributed to the decision to set aside the decision under review which denied liability and remit the issue to the Respondent to determine matters regarding permanent impairment.

Reasonable disciplinary action

Khourey and Military Rehabilitation and Compensation Commission [2010] AATA 302 (28 April 2010) Sydney

In these proceedings, the Respondent contended that some of the Applicant’s work-related factors were ‘excluded causes’, namely the disciplinary action taken after the Applicant went AWOL and the refusal of his request for an early discharge. The Applicant disagreed with these contentions. The Applicant agreed that the Army’s action in charging and sentencing him for being AWOL constituted ‘reasonable disciplinary action’. He contended, however, that his treatment in military prison was anything but reasonable, and therefore did not constitute ‘reasonable disciplinary action’.

The Tribunal considered that an inference arose that the Applicant’s evidence concerning aspects of his treatment in custody may have been a ‘recent invention’. While his claim that he failed to complain about his treatment at that time because of his fear that the Army might have decided to prolong the discharge process as a form of victimisation if he did was not entirely implausible, he made no complaint after being told to show cause or, indeed, after his discharge from the Army. While the Tribunal accepted the overall thrust of the Applicant’s evidence that he developed his psychiatric illness in the Army, they did not consider him to be a reliable witness, and therefore could not place confidence in this aspect of his evidence.

It followed that the Applicant’s time in military prison constituted ‘reasonable disciplinary action’ and the Tribunal was satisfied that the aggravation of his condition ‘materially contributed to’ or was a ‘result of’ of that action. Accordingly, the Tribunal considered that the aggravation did not constitute an injury within the meaning of the 1988 Act. Given this finding, it was not necessary for the Tribunal to address whether other events or incidents also constituted an excluded cause.

On the basis of these findings, the Tribunal considered that the Respondent was not liable for the aggravation of the Applicant’s injury which occurred on or about June 2002.

Procedure & costs

Mellor and Australian Postal Corporation [2010] AATA 288 (22 April 2010) Sydney

This application raised the question of whether circumstances may arise in which it is appropriate for a member of the Tribunal to recuse himself or herself from re-hearing a matter remitted to the tribunal by the Federal Court of Australia where the matter has been remitted because the Tribunal made a technical error of law. The Tribunal in these proceedings highlighted that the question was whether, in those circumstances, there may be an apprehension of bias which should lead to the Tribunal member recusing himself.

This matter was heard in the Tribunal by one its members, Dr Ion Alexander. Dr Alexander affirmed a number of decisions which were under review. Part of Dr Alexander’s decision was appealed by the Applicant to the Federal Court of Australia, pursuant to section44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) which confers a right of appeal on an unsuccessful applicant in the tribunal ‘on a question of law’.

The error of law found in the Federal Court by Bennett J in the present case could fairly be described as a finding of an error of law on a narrow question. Bennett J described the error as an error ‘in law in applying [a] test of materiality’. In particular, she said that the Tribunal confused ‘the requirement that the employment [of the applicant] be a material cause of the aggravation [of an underlying condition] with a requirement that the effect of the aggravation be material’.

In the present case, the Tribunal determined that the matter should be heard by the Tribunal constituted again by Dr Alexander. The matter came on for re-hearing before Dr Alexander on 19 January 2010. At that time, application was made on behalf of the Applicant for Dr Alexander to recuse himself. The application was made under section 21A of the AAT Act and the basis for the application was apprehended bias.

At the outset, the Tribunal noted that it could only reconstitute the panel for the hearing of this matter under section 21A of the AAT Act where it was determined that the proceeding related to matters of such public importance as to justify that course. In its opinion, there were no circumstances of sufficient public importance to justify the Tribunal in reconstituting it. However, it proceeded to continue the application regarding apprehended bias given that such an application based on the rules of natural justice could simply be made to the Tribunal as constituted to hear the matter.

The Tribunal highlighted that the rules relating to apprehended bias were well established and a convenient summary was is in the decision of the High Court of Australia in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at page 492, where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ described the question as: ‘...whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.’

The Tribunal considered that the appropriate decision relating to the constitution of the Tribunal was that it be reconstituted as it was for the original hearing. The Tribunal was of the opinion that a lay observer would consider that Dr Alexander, taking into account the way in which his finding on the question of law had been corrected, would be the ideal person to hear the case. There was nothing before the Tribunal which would cause the lay observer postulated in Johnson v Johnson to draw a negative conclusion.

A decision was made to the effect that the Tribunal would be constituted by Dr Ion Alexander for the hearing to take place pursuant to the remittal by the Federal Court.

Slater and Telstra Corporation Limited [2010] AATA 274 (19 April 2010) Canberra

The Applicant was injured in employment by the Respondent in 1996. The Respondent accepted liability and paid the Applicant compensation. Subsequently, however, the Respondent, by its insurer, determined that the Applicant was not entitled to compensation for incapacity. The Applicant challenged this and subsequent related decisions in many applications to the Tribunal’s Brisbane registry and in the Federal Court of Australia. In respect of one such application, the Deputy President directed that
the Applicant ‘must not, without leave of the Tribunal, make any application to the Tribunal with respect to any claimed entitlements to compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 prior to 1 June 2002’.

On 2 March 2010, the Applicant lodged an application for review of a reconsideration decision made by the Respondent’s insurer on 22 February 2010 that affirmed a primary determination. On the terms of that decision the Applicant raised two issues by claim: weekly compensation from 1 June 2002 and recalculation of any entitlements to weekly compensation for the period from 1 October 1997 to 31 May 2002.

It was in this context that three disputed issues arose for determination at this early stage of proceedings. The Respondent asserted that the Applicant required and did not have leave of the Tribunal to make the application. Furthermore, the Respondent had applied for the application to be transferred from the Tribunal’s Canberra registry to the Brisbane registry and has requested an extension of time in which to lodged documents under section 37 of the AAT Act. The Applicant asserted that leave was granted to him to apply by a Senior Member in earlier proceedings and he opposed the applications for transfer and extension of time.

It was tolerably clear to the Tribunal that the Applicant felt aggrieved that issues he attempted to litigate on several occasions had not properly been addressed. These issues included:

• Net Weekly Earning (‘NWE’) calculations did not include any amount for overtime;
• Clerical work was deemed to be suitable employment for him and the Applicant submitted that this was not the case;
• The AE (ability to earn) assessment for the purposes of section 19 of the 1988 Act is based on a Queensland Clerks Award (‘Award’) and the Applicant submitted that this was not appropriate as no clerical work at the Award rate of pay was available to him in England;
• The Applicant did not agree that the relevant labour market was in Queensland, given that he resided in England.

In addressing this issue, the Tribunal noted that there was no present connection between either party and the Canberra registry or the Brisbane registry. The only connection with the Brisbane registry was historical. The Tribunal stated that the likelihood of medical witnesses or any other witnesses being called was very low, and essentially, the calculation of the Applicant’s NWE amount from 1 June 2002 was a technical exercise that could readily be decided on the papers with written submissions from the parties. Furthermore, the Tribunal noted that there was no evidence that the Applicant had acted capriciously by lodging his application in Canberra.

Weighing these matters in the balance of convenience, the Tribunal noted that there was no reasonable basis on which to disturb the status quo and order transfer of the Applicant’s application from the Canberra registry to the Brisbane registry of the Tribunal. In this case, there was no compelling reason for these considerations to be transferred. Thus, the Respondent’s request for transfer was denied.

Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408 (30 April 2010) Adelaide

This was an appeal from a decision of the Tribunal made on 27 May 2009: Kowalski v Military Rehabilitation and Compensation Commission [2009] AATA 382. The Tribunal affirmed a decision of the Respondent, which rejected a claim by the Appellant for compensation arising from a condition of gastro-oesophageal reflux disease (“GORD”) which the Appellant claimed was caused, or contributed to, by his service in the Australian Army.

In the current proceedings, the Court indicated that to the extent that the Notice of Appeal referred to grounds of appeal or errors of law to the effect that the Tribunal “deliberately and consciously perverted the course of justice”, or made similar such claims including that of actual bias, those claims were rejected given that there was simply no material from which those assertions could be made out.

To this end, the Court noted that there were several issues which appeared to emerge, upon careful consideration of the Appellant’s grounds of appeal and his submissions, namely:

1. (1) whether the Tribunal erred in determining that the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) and not its legislative ancestor, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“1971 Act”) should have been applied in determining his claim for compensation for his GORD;
2. whether the Tribunal erred in law in a series of findings which the Appellant said were incorrect:

1. that in 1979 and 1981 the Appellant suffered a recurrence of ulcer symptoms and had several days off work as a result, when he said that his ulcer condition persisted with varying degrees of intensity subsequent to his Army service;
2. that the Appellant’s weight at 1994 (as noted by a medical specialist) was 73 kgs, when he said that his weight progressively increased from the time of his Army service to 97 kgs at the time of his heart attack;
3. that the Appellant had constructed his claims to have been put on a high fat, high cholesterol diet when in the Army to fit his understanding of the aetiology of GORD, and so in rejecting his claim that there was a link between his weight gain and his Army service, when (the Appellant asserted) the Tribunal had already had a finding in his favour confirming that he had been put on such a diet during his Army service;
4. that the Appellant first sought treatment for GORD at the earliest in the mid-1990s, when the Appellant said that he had suffered from heartburn during and subsequent to his Army service and was treated for heartburn, and that the heartburn was a symptom of GORD and not merely a symptom of his ulcer;
5. that the Army medical records were suggestive only of an ulcer, despite the use of the word “heartburn” in those records;
6. that the Appellant did not suffer GORD during his Army service [a generic encapsulation of points (iv) and (v)]; and
7. that there was no link between his GORD and the medication prescribed for anxiety and for the ulcer during his Army service, when the Appellant said that the evidence was plainly to the contrary;

3. whether the Tribunal erred in not according the Appellant procedural fairness because it inappropriately assisted the Respondent to present its case and did not conduct its hearing in an inquisitorial way; and
4. assuming that it was correct for the Tribunal to assess his claim by reference to the causative connection required by the definition of “disease” in the 1988 Act, the Tribunal erred in deciding that his GORD was not related to his Army service because it asked the wrong question, namely whether there was a “strong causal link” between his Army service and the onset of the condition of GORD rather than asking whether there was a contribution in a material degree by his Army service to the onset or aggravation of his GORD.

In terms of Issue (1), the Court noted that the Tribunal had not misdirected itself in law in the way it addressed that question. It made a finding of fact in the terms required by s 7(4) of the 1988 Act and consistently with the 1971 Act and it did so upon the evidence. The Court noted it was clear that the Appellant strongly disagreed with that finding of fact; however, it was not the function of the Court to substitute its view on the facts for those of the Tribunal. Rather, it was to determine whether, in the process of determining the application, the Tribunal had committed an error on a matter of law. In the view of the Court, the Tribunal properly applied the 1988 Act in determining the Appellant’s claim.

With regard to the Issue (2), the Court considered that the findings of the Tribunal impugned by the Appellant were based on material before it and were reasonably available to the Tribunal. Taking the matters referred to under this issue, the Court found the following:

• in relation to (i), the particular “finding” by the Tribunal that the Appellant had a recurrence of ulcer symptoms in 1979 and 1981 was part of the background facts recorded by the Tribunal, for which there was a foundation in the evidence;
• in relation to (ii) and (iii), the Tribunal’s approach involved both primary findings of fact about what happened during the Appellant’s Army service and consequential findings about causation and the fact that, in a separate proceeding a Deputy President recorded as a background fact a matter which was contentious in the instant matter and which the Tribunal as constituted for the subject review decided adversely to the Appellant for certain reasons, did not demonstrate that the Tribunal erred on a matter of law in reaching that conclusion;
• in relation to (iv), (v) and (vi), there was evidence on which the Tribunal could reasonably have made the finding of fact which it did. Consequently, the attack on those findings did not demonstrate an error on a matter of law;
• in relation to (vii), that finding was one which, in the Court’s view, was reasonably open to the Tribunal on the material before it. There was evidence which, if accepted, might have supported a different factual finding; however that did not demonstrate of itself that the Tribunal erred on a matter of law.

In relation to Issue (3), the Court found that the Tribunal did not fail to accord procedural fairness to the Appellant in conducting its review or in making its conclusions. The Court found that the Appellant failed to establish that the Tribunal, by the conduct of its review, did not give the Appellant an appropriate opportunity to present evidence and to make submissions. Nor did he make out that the Tribunal was actually biased or, by the way it conducted the review, might a fair-minded observer reasonably apprehend that the Tribunal did not bring an impartial and unprejudiced mind to its task: Minister for Immigration v Jia Legeng (2001) 205 CLR 507; Johnson v Johnson [2000] HCA 48. In the Court’s view, the Appellant’s complaint amounted to no more than his disagreement with the Tribunal’s findings of fact for the reasons addressed when considering Issue (2) above.

With respect to Issue (4), the Court found that the Tribunal correctly said that, in the light of its findings that the Appellant first sought treatment for GORD only in the 1990s, the definition of “disease” in the 1988 Act meant that it had to be satisfied, on the balance of probabilities that his Army employment contributed in a material degree to the onset or aggravation of his GORD. In view of the definition of disease in s 4(1) of the 1988 Act as relevantly in force, the Court noted it was incorrect to say that the Tribunal needed to be satisfied that there was a “strong causal link” between the Appellant’s Army service and the onset, acceleration or aggravation of his GORD for that condition to be a compensable disease. The Court highlighted that whether the Tribunal was mistaken in finding that the presence of GORD was not the cause of the symptom of heartburn, its finding of fact did not demonstrate any error of law on its part in the way the Appellant claimed.

Incapacity

Clement and Comcare [2010] AATA 296 (23 April 2010) Canberra

The Tribunal in this instance was asked to consider whether the Respondent was liable to pay the Applicant incapacity benefits from 1994, in respect of her delusional disorder, pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘1988 Act’).

In coming to their conclusion, the Tribunal considered the body of medical and factual evidence submitted, including relevant psychiatric information regarding the medical cause of delusional disorders. The Tribunal noted in passing that the original acceptance of liability under section 14 of the 1988 Act remained operative and in force, however, this did not preclude it from making factual findings for the purposes of these proceedings that may have been inconsistent with or ‘undercut’ the factual findings that led to the earlier section 14 determination: Telstra Corporation Limited v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 at [57] – [59].

Central to this claim was the Applicant’s assertion that she was persecuted by her supervisors in her previous employment with the Australian Bureau of Statistics as a consequence of a report she wrote regarding data security problems within the agency. The Respondent accepted the Applicant’s claim and she took leave in 1991 after which time she returned to work. In 1994 the Applicant accepted an offer of redundancy, and subsequently her payments by the Respondent were ceased. The Applicant asserted that the Respondent was still liable to compensation beyond that of 1994, particularly, as she alleged she was forced into taking the redundancy.

It was not disputed by the Tribunal that the Applicant was suffering from a rather severe delusional disorder; however, issues arose regarding the cause of the condition. The Applicant asserted that her condition occurred as a consequence of fearing physical harm as a consequence of uncovering criminal activity in her report, involving a number of different spheres of public life. However, the Tribunal could not be satisfied as to the veracity of this allegation, particularly, indicating that this perception of events was on of the Applicant’s delusions.

In viewing the medical evidence, the Tribunal noted that the aetiology of delusional disorders was largely unknown, with some belief that it was constitutional in nature. Whilst the Tribunal accepted that the stressors at work added colour and weight to the Applicant’s delusional beliefs, they could not be satisfied that the Applicant’s employment had materially contributed to the onset of the illness.

As such, the Tribunal, whilst noting the tragic nature of the case, could not be satisfied that the Applicant’s requirements for incapacity benefits arose from a compensable injury under the 1988 Act.

The Tribunal affirmed the decision under review.

Ferrini and Comcare [2010] AATA 276 (20 April 2010) Canberra

The Applicant made a number of claims for compensation, the most recent of which concerned incidents that occurred during a return to work program in March and May 2006. The Respondent accepted liability for a psychological injury in January 2008 and compensation was paid for incapacity and medical treatment expenses. Subsequently, the Applicant’s employment was terminated. The Respondent determined that the Applicant was not entitled to incapacity payments thereafter and, later, determined that the Applicant was not entitled to compensation for incapacity, medical treatment expenses and permanent impairment. The Applicant challenged these determinations without success.

The Applicant subsequently withdrew her claim for permanent impairment. Therefore, the two reconsideration decisions before the Tribunal concerned:

1. The Applicant’s entitlement to incapacity payments as a result of the accepted psychological injury from 18 June 2007; and
2. Her entitlement to compensation for incapacity and medical treatment expenses in relation to the accepted injury from 30 October 2008.

While it could be accepted that the Applicant suffered varying degrees of incapacity for work as a result of medical conditions that afflicted her, the Tribunal noted it did not follow that the incapacity was compensable under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘1988 Act’). The Tribunal was reasonably satisfied that the Applicant’s claimed incapacity did not result from an injury in March or May 2006.

The Tribunal highlighted that the evidence indicated that the Applicant had a long history of psychological symptoms that, in all likelihood, rendered her vulnerable to reactive episodes in response to stress.

In sum, the Tribunal was reasonably satisfied that any reactive effect of the events to which the Applicant pointed in the period from 8 March 2006 to May of that year was transitory and was conditioned by her already existing medical conditions; the difficulties the Applicant perceived in her employment at that time arose in the context of her already existing and ongoing psychological condition or her pain disorder.

On the medical evidence before it, the Tribunal was reasonably satisfied that the Applicant was not entitled to compensation for incapacity from 18 June 2007 under section 19 of the 1988 Act.

The Tribunal affirmed the decisions under review.

McKenzie and Military Rehabilitation and Compensation Commission [2010] AATA 275 (20 April 2010) Canberra

In addition to her claims for compensation under sections 14 and 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘1988 Act’), the Applicant sought compensation for incapacity under section 19 of the 1988 Act for her accepted ‘adjustment disorder with depressed mood’ injury.

In light of its findings regarding the nature of the Applicant’s condition, namely that it was an aggravation of her pre-existing adjustment disorder which was due predominately to her employment, the Tribunal considered that the Applicant was entitled to compensation for incapacity under section 19 of the 1988 Act.

The Tribunal set aside the decision under review and remitted the issue of whether the Applicant’s adjustment disorder was a permanent injury which met the 10 percent threshold under Table 5.1 of the Comcare Guide back to the Respondent.

Permanent impairment

McKenzie and Military Rehabilitation and Compensation Commission [2010] AATA 275 (20 April 2010) Canberra

In addition to the her claims for compensation under sections 14 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘1988 Act’), the Applicant sought compensation for permanent impairment for adjustment disorder with depressed mood in accordance with section 24 and 27 of the 1988 Act, a decision on which was deferred by the Commission on 6 August 2007, and varied on review on 21 February 2008 to deny liability for permanent impairment and non-economic loss.

In consideration of issues concerning the Applicant’s entitlement to compensation for permanent impairment, the Tribunal indicated that the sub-issues were whether rehabilitation could reduce or remove the Applicant’s condition, and if not, whether the condition was ‘permanent’, and whether it met the minimum level of 10 per cent impairment under Table 5.1 of the Comcare Guide. The Tribunal considered that the predominant view of the medical experts and particularly the most recent of the reports provided by consultant psychiatrists were that the Applicant’s condition was permanent, that is, was likely to continue indefinitely, and would not be improved by any rehabilitative treatment. In addition, the views provided by occupational physicians about the Applicant’s ability to re-enter the workforce was contingent on the work involving suitable restrictions, including that she only work part-time and about the rehabilitative value of a pain management program was expressed in a tentative manner. On balance, the Tribunal found on the evidence that the Applicant’s condition was permanent.

The Tribunal noted that the issue of whether the Applicant’s condition met the minimum threshold of 10 percent was more problematic. Only two of the specialists had made an assessment and the Tribunal considered this evidence was insufficient to enable it to confirm whether this assessment was correct. The Tribunal therefore remitted this issue to the Respondent for further assessments to be made.

The Tribunal set aside the decision under review and remitted the issue of whether the Applicant’s adjustment disorder was a permanent injury which met the 10 percent threshold under Table 5.1 of the Comcare Guide back to the Respondent.

Medical expenses

Clement and Comcare [2010] AATA 296 (23 April 2010) Canberra

The Tribunal in this instance was asked to consider whether the Respondent was liable to pay the Applicant medical expenses from 1994, in respect of her delusional disorder, pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘1988 Act’).

The Tribunal’s findings in this regard were outlined above under ‘Incapacity’. In light of those findings, the Tribunal could not be satisfied that the Applicant’s requirements for medical expenses arose from a compensable injury under the 1988 Act.

The Tribunal affirmed the decision under review.

Ferrini and Comcare [2010] AATA 276 (20 April 2010) Canberra

While it could be accepted that the Applicant’s conditions required medical treatment from time to time, the Tribunal noted it did not follow medical treatment was compensable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘1988 Act’). The Tribunal was reasonably satisfied that the medical treatment the Applicant obtained was not treatment obtained in relation to an injury in March or May 2006.

The Tribunal highlighted that the evidence indicated that the Applicant had a long history of psychological symptoms that, in all likelihood, rendered her vulnerable to reactive episodes in response to stress.

In sum, the Tribunal was reasonably satisfied that any reactive effect of the events to which the Applicant pointed in the period from 8 March 2006 to May of that year was transitory and was conditioned by her already existing medical conditions; the difficulties the Applicant perceived in her employment at that time arose in the context of her already existing and ongoing psychological condition or her pain disorder.

On the medical evidence before it, the Tribunal was reasonably satisfied that the Applicant was not entitled to payment of medical treatment costs from 30 October 2008 under section 16 of the 1988 Act.

The Tribunal affirmed the decisions under review.

Rehabilitation

Clement and Comcare [2010] AATA 296 (23 April 2010) Canberra

The Applicant alleged that the Respondent and her employer acted illegally to stop her entitlement to rehabilitation and to compensation in the circumstances pertaining to the cessation of her employment. This, she argued, was wrong and should have been rectified by reinstating her compensation payments from 1994 to the present.

In the absence of an injury, the Tribunal found that there could be no entitlement to rehabilitation under the Safety, Rehabilitation and Compensation Act 1988 (Cth).