Australia: Inconsistent evidence not fatal to claim by applicant

Chugha and Comcare [2020] AATA 2835.

Key Points:

• The Tribunal was required to consider whether Mr Chugha's accepted psychiatric condition continued to be significantly contributed to by his employment.
• The Tribunal found that Mr Chugha's complaints of severe incapacity did not sit with the factual evidence on file, including social media posts about his social activities.
• Despite the issues with his evidence, the Tribunal ultimately found in favour of Mr Chugha.

Background:

Mr Kuldip Chugha was employed as a rehabilitation officer and submitted a claim for workers' compensation in respect of a psychological condition suffered as a result of workplace bullying from his supervisor.  By determination dated 4 September 2013, Comcare accepted liability to pay compensation for major depressive disorder pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).  On 14 February 2018, Comcare issued a determination which found that Mr Chugha was no longer entitled to compensation for incapacity to work, or medical treatment, on the basis that his employment was no longer a significant contributing factor to his condition, resulting in him no longer suffering from an injury as defined under the SRC Act.  The determination was affirmed on review.  Mr Chugha sought further review at the Administrative Appeals Tribunal.

Mr Chugha maintained that he continued to suffer symptoms and disability and that his employment continued to contribute to the ongoing condition, to a significant degree. Comcare challenged the credibility of Mr Chugha, as well as the extent of his disability, citing activities undertaken by Mr Chugha that were inconsistent with his claimed condition. Comcare also pointed to factors other than employment that were contributing to Mr Chugha's condition.

At the hearing, Mr Chugha's treating psychiatrist, Dr Richard Allison, gave evidence that Mr Chugha's psychological condition continued to be significantly contributed to by his employment.   Dr Allison was of the view that Mr Chugha's condition was severe enough that he remained incapacitated for work.

Comcare relied on the evidence of Dr Shiva Gunapu, psychiatrist, who considered that Mr Chugha's depression was in partial remission.  Dr Gunapu gave evidence that Mr Chugha's psychological condition was due to character traits, motivational influences and attitudinal factors and that his social media showed behaviours inconsistent with a depressive disorder of the severity suggested by Dr Allison. Dr Gunapu pointed specifically to the social activities undertaken by Mr Chugha which demonstrated a degree of functional capacity.

At hearing, Comcare tendered evidence of inconsistencies between Mr Chugha's claimed ongoing incapacity and his social activities. A desktop investigation report showed that Mr Chugha was very active on Facebook and posted regularly about running for election in the Legislative Council of South Australia, being a Liberal Party member, President of the Punjabi Association of South Australia and travelling overseas.

The Law:

A disease is defined under section 5B of the SRC Act as an ailment, or an aggravation of an ailment, which has been contributed to, to a significant degree by the employee's employment.

Conclusion:

Mr Chugha's evidence at hearing was noted to be imprecise and the Tribunal found that he downplayed the impact that losing a significant amount of money in investments had made to his mental health.  It was noted that Mr Chugha made a series of odd comments in respect of his own rehabilitation, and it was noted that there was little evidence of any structured rehabilitation program. The Tribunal found that Mr Chugha's evidence at hearing was often exaggerated and unreliable.  The Tribunal also considered that Mr Chugha demonstrated capacity to understand the questions and provide coherent evidence.

Despite the issues with Mr Chugha's evidence, the Tribunal accepted the evidence of his treating medical practitioners and his wife that he continued to suffer ongoing psychological symptoms.  The Tribunal ultimately found that Mr Chugha's condition continued to be significantly contributed to by his employment, specifically the bullying he suffered in 2013, and that he was entitled to ongoing compensation in respect of his compensable condition.

The Tribunal commented that the information gathered by Comcare in investigating this case may be of use in assisting with Mr Chugha's rehabilitation program.  It considered a targeted rehabilitation program may lead to an improvement in his condition and an increase in his capacity for work.

Lessons Learnt:

Continuing to engage with claimants and liaise with treaters to create comprehensive rehabilitation and return to work programs is important at each stage of the process to keep claimants engaged and assist with an earlier return to work.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.