Aloi and Commonwealth Bank (Compensation)
[2023] AATA 14
•12 January 2023
Aloi and Commonwealth Bank (Compensation) [2023] AATA 14 (12 January 2023)
Division:GENERAL DIVISION
File Number: 2021/6184
Re:Ms Angela Aloi
APPLICANT
AndCommonwealth Bank
RESPONDENT
Decision
Tribunal:Ms A E Burke AO, Member
Date:12 January 2023
Place:Melbourne
Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
.....................[sgd]...................................................
Ms A E Burke AO, Member
Catchwords
COMPENSATION – permanent impairment – accepted condition - whether condition is permanent – whether reasonable treatment undertaken – degree of permanent impairment - whether a “need” for supervision and direction – non-economic loss score - decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases
Comcare v Filla (2002) 115 FCR 163
Hassan Bin Tahal v Comcare [2004] FCA 680
King and Comcare [2011] AATA 500
O’Connell and Comcare [2012] AATA 532Winter and Comcare [2014] AATA 811
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment
REASONS FOR DECISION
Ms A E Burke AO Member
12 January 2023
The Applicant, Ms Aloi, applied for a review of a decision of the Commonwealth Bank of Australian (CBA) dated 27 August 2021 which affirmed a primary determination of 19 July 2021 awarding Ms Aloi permanent impairment and non-economic loss in respect of her accepted claim condition of adjustment disorder with depressed and anxious mood under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
On 1 September 2021 Ms Aloi sought review of that decision by the General Division of the Administrative Appeals Tribunal stating:
I believe the outcome was incorrect, and that my doctor’s findings should play some part into the decision making, not just their doctor. The difference in the percentage rating is quite different, hence the reasoning behind the review.
BACKGROUND
Ms Aloi commenced working at CBA on 22 August 2005, ceasing on 13 August 2018 as a result of her workplace injury. At the date of her claim, she was employed as a savings specialist supervisor at a suburban branch. Ms Aloi is 61 years of age, has three adult children and resides with her eldest son.
On 17 September 2019 Ms Aloi submitted a Claim for Workers’ Compensation dated 10 September 2019 alleging that she had been subjected to repeated bullying and work overload at the workplace which led her to first seek medical treatment on 13 August 2018.
On 14 November 2019, CBA accepted liability for Ms Aloi’s claim pursuant to s 14 of the SRC Act in respect of “adjustment disorder with depressed and anxious mood”:
The Claim
You have claimed that you sustained a psychological injury diagnosed as adjustment disorder with depressed and anxious mood as a result of namely two customer aggression incidents and alleged bullying and harassment from your manager. You advised of a build-up of events leading to 13/08/2018 which led to you seeking medical attention from 13/08/2018. This was made by way of claim form received on 17/09/2019. You have advised that you have raised concerns about your leadership team that does not directly touch on this claim here. You are claiming medical expenses incurred in obtaining medical treatment and an incapacity for work arising from the claimed medical condition.
The Decision
I have determined that your claim should be accepted and that the employer is liable to pay compensation in respect of your injury. Your entitlement to compensation will be assessed and paid in accordance with the Act.
The medical. condition must have been significantly contributed to by your employment (section 58). Essentially I find in your favour that your employment was a significant contribution to the onset of your condition.
In your statement dated 08/10/2019 to LS Partners you have also advised of events of workload pressures as well as a customer aggression events, namely a threatening phone call where you report this customer threatened to run his car through the branch as well as another call you were asked to make, of which Trent Morris made given your reluctance to make the call. I am satisfied that these events are employment related and have contributed to the onset of your condition.
There was no evidence to support that your condition was caused by anything other than employment factors. Within the report from Dr Assad dated 04/02/2019 there was no indication of other factors or a pre-existing disposition of psychological conditions.
Ms Aloi submitted a Compensation Claim for Permanent Impairment and Non-Economic Loss on 3 March 2021, in which Dr Assad assessed her as having a permanent impairment of between 20-25%. Dr Assad advised that he considered her condition would deteriorate and that all active treatment for Ms Aloi’s condition had been completed. In the non-economic loss questionnaire, Dr Assad opined in respect of Ms Aloi’s suffering:
Her mental stress symptoms are wide ranging that dominate her thinking, she is rarely free of her mental stress. She has been suffering from low mood poor, concentration and motivation, sleep disturbance and lack of self-esteem
On 8 June 2021, Associate Professor Abdul Khalid, consultant psychiatrist, examined Ms Aloi for CBA and provided a medico-legal report which assessed her as suffering a 10% whole person impairment (WPI) on the basis that she was capable of performing her activities of daily living (ADL) without supervision or assistance. Associate Professor Khalid commented:
Adjustment disorder with depressed and anxious mood
I have used the Guides to the assessment of degree of permanent impairment Edition 2.1 to assess her permanent impairment for her claimed condition of adjustment disorder with depressant and anxious mood.
Using Chapter 5.1 Psychiatric condition descriptors as noted below, I would rate her psychiatric impairment as 10%.
"Despite the presence of more than one of the following employees is capable of performing activities of daily living without supervision or assistance:
·reactions to stresses of daily living with minor loss of personal or social efficiency
·lack of conscience directed behaviour without harm to community or self
·minor distortions of thinking."
Ms Aloi has symptoms of anxiety, disturbed sleep, social withdrawal, decreased energy and motivation and passive death wishes with no suicidal plan or intent. However, she is capable of performing her activities of daily Jiving without supervision or assistance. Any rating of more than 10% requires 'a need for supervision or assistance'. Therefore, using the Guides, her maximum psychiatric impairment can be 10%.
On 19 July 2021, Associate Professor Khalid provided an additional report providing clarification of his non-economic loss questionnaire ratings:
I note that the only discrepancy between my rating and Dr Asaad's rating was in the domain of suffering, where I rated her as Class Score 3 and Dr Asaad rated her as Class Score 4. In order to be clearer, I would provide my amended ratings as below.
I note that Dr Asaad rated Ms Aloi's 'Pain' as Class Score 0. I agree with Dr Asaad's rating as Class Score O because Ms Aloi does not suffer from any pain.
I note that Dr Asaad has rated Ms Aloi's 'Suffering' as Class Score 4. However, based on my examination, I consider that she fits Class 3 description for 'suffering' which is as follows:
"Symptoms of mental distress are distinct and varied. Episodes of mental distress occur regularly. Ability to cope or perform activity effectively reduced during episodes. Needs time to recover between episodes. Treatments such as antidepressants, counselling and other supportive therapies help to control or relieve symptoms".
During my assessment Ms Aloi had reported symptoms of disturbed sleep, struggling to read the whole book, not going out for walks at all, loss of appetite, decreased socialisation, fleeting thoughts of suicide with no plan or intent and preoccupation of what had happened at work. She also reported dreams about what happened at work and she cries without any reason and breaks down. However, I noted that she showered and changed her clothes every day. She was able to attend to her activities of daily living. She did minimal household chores and cooking. She sometimes watched television but did not concentrate and dozed off. Some days she went grocery shopping. She had no problem driving. She had reasonable relationships with her children. She was having psychological treatment, but she was not taking any antidepressant medication.
Her constellation of symptoms, therefore, justify a Class Score 3 rating for 'Suffering'.
I agree with Dr Asaad's rating as Class Score O for 'Mobility' as Ms Aloi has no mobility issues.
I agree with Dr Asaad's rating for 'Social Relationships' as Score 3, as Ms Aloi's relationship is confined to her close family and she has difficulty maintaining relationships with close friends and extended family.
I agree with Dr Asaad's rating as Class Score 3 for 'Recreational and Leisure Activities' because Ms Aloi is unable to continue with her preinjury level of activity and she is involved in less rewarding activity possible like reading but she does not finish the whole book.
I agree with Dr Asaad's rating of Class Score O for 'Other Loss' because Ms Aloi has no or minimal disadvantage from factors that have not been covered earlier.
On 19 July 2021, CBA made a primary determination that Ms Aloi suffered a permanent impairment as a result of her accepted condition of adjustment disorder with depressed and anxious mood. CBA’s Senior Case Manager was satisfied that Ms Aloi was entitled to compensation pursuant to ss 24 and 27 of the SRC Act based on a 10% WPI, and a non-economic loss score of 34% based on the assessment of Associate Professor Khalid:
I am satisfied that you have an entitlement to permanent impairment and non-economic loss compensation because the medical evidence supports that your injury has led to an impairment in relation to function and that the impairment is permanent. I am further satisfied that the degree of the impairment is equal to or more than 10%.
On 27 August 2021, following Ms Aloi’s request for reconsideration on 28 July 2021, CBA affirmed the primary determination. CBA’s National Compliance and Audit Manager reasoned:
Whilst I acknowledge that there is a large difference between the assessment offered by Dr Assad and that of Associate Professor Khalid, the difference in the assessments is partly explained by the Comcare Guide to the Assessment of Permanent Impairment, which requires any rating of more than 10% with 'a need for supervision or assistance'. Associate Professor Khalid stated that you were capable of performing activities of daily living without supervision or assistance. Dr Assad was silent on this issue.
…
In your request for reconsideration you provided an additional letter from Dr Assad dated 27 July 2021. Dr Assad stated that you had lost your confidence, self -esteem and motivation. You suffered from panic attacks, nightmares, flashback memories and severe insomnia. He stated that you were permanently incapable of performing your normal duties or alternate employment. Dr Assad did not comment on the need for supervision or assistance.
In your request for reconsideration you also stated that "Before the workplace incident, I was decisive, conscientious, reliable and hard-working, success oriented and self-motivated. All this showed through my continued Performance Reviews. Since the incident I struggle on a daily basis. I don't have much in the way of family support. My parents are elderly and require assistance with their living arrangements. My younger sister resides with them so she is busy with them. I only have one son that resides with me, but he works full-time. He helps with the chores, and when I require his assistance with household activities. My other son resides in Sydney, married with 2 children, and my youngest daughter moved out last year with her partner. She lives over an hour away, so I hardly see her either. I have feelings of loneliness and isolation all the time. Although my son lives with me, his work keeps him busy and on the weekends he is out with friends."
I note that Associate Professor Khalid obtained a statement from you in the course of examination which is consistent with the statement in your email of 28 July 2021. The doctor took this information into account in coming to the assessment of permanent impairment. The information you have provided does not address the criteria for permanent impairment found in the Comcare Guide to the Assessment of Permanent Impairment.
….
Your request for reconsideration and the additional documentation provided by Dr Assad do not cause me to question the primary decision maker's view. This is because the symptomatology and treatment as described by you was taken into account by Associate Professor Khalid. Moreover, Associate Professor Khalid provided clear and detailed reasoning for his opinion and conclusions.
Whilst I accept that Dr Assad has been your treating practitioner since 2018, given Associate Professor Khalid is a specialist and has specifically addressed the criteria in the Guide for Permanent Impairment, I prefer and place greater weight on the assessment of permanent impairment provided by Associate Professor Khalid.
LEGISLATIVE FRAMEWORK
As a licensee, CBA’s liability for compensation for work-related conditions arises under section 24 and 27 of the Act, should an employee suffer an injury which results in permanent impairment and non-economic loss.
Section 24 of the SRC Act provides for compensation for injuries resulting in permanent impairment:
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
Section 27 of the SRC Act provides for compensation for non‑economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.
Section 28 of the SRC Act outlines that the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) has been prepared which provides criteria on which to assess an individual’s impairment:
(1) Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non‑economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non‑economic loss, as determined under those criteria, shall be expressed as a percentage.
Psychiatric impairments are assessed under Table 5.1 of the Approved Guide:
5.0 Introduction
In conducting an assessment, the assessor must have regard to the principles of assessment (see pages 23-26) and the definitions contained in the glossary (see pages 27-28).
For the purposes of Chapter 5, activities of daily living are those in Figure 5-A (see below). The examples provided below are not exhaustive and should not be seen as a substitute for assessor discretion when making decisions about impairment ratings.
Figure 5-A: Activities of daily living
Activity Examples Self care, personal hygiene Bathing, grooming, dressing, eating, eliminating. Communication
Hearing, speaking, reading, writing, using keyboard.
Physical activity Standing, sitting, reclining, walking, stooping, squatting, kneeling, reaching, bending, twisting, leaning, carrying, lifting, pulling, pushing, climbing, exercising. Sensory function Tactile feeling Hand functions Grasping, holding, pinching, percussive movements, sensory discrimination. Travel Driving or travelling as a passenger. Sexual functioning Participating in desired sexual activity. Sleep Having a restful sleep pattern. Social and recreational Participating in individual or group activities, sports activities, hobbies. Table 5.1: Psychiatric conditions
% WPI
Description of level of impairment
0
Reactions to stresses of daily living without loss of personal or social efficiency and
Capable of performing activities of daily living without supervision or assistance.
5
Despite the presence of one of the following employee is capable of performing activities of daily living without supervision or assistance:
· reactions to stresses of daily living with minor loss of personal or social efficiency
· lack of conscience directed behaviour without harm to community or self
· minor distortions of thinking.
10
Despite the presence of more than one of the following employee is capable of performing activities of daily living without supervision or assistance:
· reactions to stresses of daily living with minor loss of personal or social efficiency
· lack of conscience directed behaviour without harm to community or self
· minor distortions of thinking.
15
Any one of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stresses of daily living which cause modification to daily living patterns
· marked disturbances in thinking
· definite disturbance in behaviour.
20
Any two of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stresses of daily living which cause modification of daily living patterns
· marked disturbance in thinking
· definite disturbance in behaviour.
25
All of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stresses of daily living which cause modification of daily living patterns
· marked disturbances in thinking
· definite disturbances in behaviour.
Notes to Table 5.1
2. Table 5.1 includes psychoses, neuroses, personality disorders and other diagnosable conditions. The assessment should be made on optimum medication at a stage where the condition is reasonably stable.
3. Supervision means the immediate presence of a suitable person, responsible in whole or in part for the care of the employee.
4. Assistance means the provision of assistance to the employee in performing the activities of daily living by a suitable person, responsible in whole or in part for the care of the employee
5. Direction means the provision of direction to the employee by a suitably qualified person, responsible in whole or in part for the care of the employee
6. Suitable person means a person capable of responsibly caring for the employee in an appropriate way
7. Suitably qualified person means a person with the necessary qualifications, experience and skills to provide appropriate direction to the employee. Such persons include medical practitioners, nursing staff and clinical psychologists.
ISSUES
The issue for determination by the Tribunal is whether Ms Aloi’s accepted claim has resulted in a permanent impairment, and if so, the degree of that permanent impairment and non-economic loss caused by it pursuant to sections 24 and 27 of the SRC Act.
Evidence before the Tribunal
Ms Aloi’s statement requesting a reconsideration of the primary decision, sent on 28 July 2021 states:
…The reason why I'm requesting a review is the huge difference between the difference in reference to their percentage ranking. I believe that a lot of the questions asked by your examiner did not form part of my current situation and symptoms. A lot of it was focused on my childhood and family history. CBA have a lot of previous doctor's reports and examinations of prior examiners to support my diagnosis. As it clearly states on the medical reports that my injuries were sustained through the workplace, and that there are no prior mental illness. There are incidents reports that were documented through work and investigated at a higher level to support all this. All those reports were attached to my Work Cover claim.
I continue to suffer from post traumatic stress disorder, anxiety and depression. My symptoms can range from:-
Feelings of lack of worth
Flashbacks and nightmares
No interest in socialising, isolation
Always tearful or emotional
Difficulty sleeping, insomnia
Lowered mood
No motivation
Lack of attention in appearance
Loss of interest or no longer finding pleasure in activities or hobbies
These are just a few of what I experience constantly on a daily basis…
Before I took a leave of absence, I exhausted all attempts to escalate my concerns at my workplace i.e. the bullying and the workload but the Manager (that being…), did not listen to my requests or support me in anyway, instead I was subjected to relentless bullying and work overload. It was only after I took leave of absence that I submitted a formal complaint through to the 'Speak Up Line". As a result of these incidents at work, I continue to suffer from anxiety neurosis, panic attacks and depression. This has profoundly impacted all aspects of my day-to-day life now.
Before the workplace incident, I was decisive, conscientious, reliable and hard working, success oriented and self-motivated. All this showed through my continued Performance Reviews. Since the incident I struggle on a daily basis. I don't have much in the way of family support. My parents are elderly and require assistance with their living arrangements. My younger sister resides with them so she is busy with them. I only have one son that resides with me, but he works full-time. He helps with the chores, and when I require his assistance with household activities. My other son resides in Sydney, married with 2 children, and my youngest daughter moved out last year with her partner. She lives over an hour away, so I hardly see her either. I have feelings of loneliness and isolation all the time. Although my son lives with me, his work keeps him busy and on the weekends he is out with friends.
Dr Martin Allan, consultant psychiatrist, in a medico-legal report for CBA dated 4 June 2019 opined:
Ms Aloi is depressed, anxious, distressed, frustrated and somewhat embittered. She has no confidence. Her motivation ls poor. She lacks self-worth, has very poor sleep, and has become Withdrawn. She lacks all confidence in her employer's ability to address her needs in the workplace.
…
Given how severely unwell she is and the lack of appropriate treatment. being utilised, I do not anticipate she will be able to return to any meaningful work within the next twelve months. Even if she were to improve given her fixated ideas about how her employer has treated her, I do not think she would maintain any sustained return to work in a position within the Commonwealth Bank. I do not see her being able to work with her employer in the future in a fashion which would support good mental health.
Dr Justin Lewis, consultant psychiatrist, in a medico-legal report for Ms Aloi dated 12 June 2020 opined:
The psychiatric prognosis has become increasingly unfavourable, if not poor, with the passage of time.
According to Ms Aloi, there has been no improvement in her psychological state despite the passage of time and psychological therapy.
Ms Aloi's current level of functioning remains at significant variance to her pre-injury level of functioning in a social, occupational, and recreational sense.
Ms Aloi presents as an individual who has lost significant confidence and self-esteem.
Ms Aloi identified herself as being irreparably “damaged” by her workplace difficulties.
…
I have been requested to undertake an impairment assessment in accordance with Chapter 5 of the Guide to the Assessment of the degree of Permanent Impairment. Whole Person Impairment = 15%.
…
The psychiatric condition cannot be regarded as having stabilised until Ms Aloi has had robust trials of antidepressant medication and more sustained psychological therapy. I note that antidepressant treatment to date has been complicated by side effects. Psychological therapy has been fragmented due to COVID-19.
Konekt Workcare’s Tier 3 Initial Assessment Report dated 17 December 2019 stated:
In relation to Ms Aloi’s work capacity Dr Asaad indicated that Ms Aloi will remain permanently unfit for all work at the Commonwealth Bank of Australia. Furthermore, he indicated that Ms Aloi is unfit for her pre-injury role or suitable employment with a new employer. It was Dr Assad’s opinion that Ms Aloi would remain permanently unfit for work.
…
Based on the Tier 3 Initial Needs Assessment which has been undertaken, Konekt considers that Ms Aloi does not have the capacity to undertake a section 37 rehabilitation program.
Konet has made this recommendation based on the following reasons:
·Medical evidence suggests that Ms Aloi is permanently unfit for all work.
Dr Sam Assad, general practitioner, in a report dated 29 September 2019, opined that Ms Aloi was totally and permanently disabled and unable to have any more gainful positions due to her mental illness of anxiety neurosis, adjustment disorder, panic attacks and reactive depression. He described her current treatment plan:
Ms Aloi has been treatment in the past for her mental illness with diazepam as an anti-anxiety agent, Temazepam and a sleeping agent and also alternative medicine called valerian forte to help her broken sleeping pattern. Currently, she is medication free. She was seeing psychologist through her employer on regular basis to assess and support her mental condition but unfortunately, the employer stopped offering her this service to her.
…
As mentioned above, she used to see psychologist on regular basis provided by her employer, but the employer is no longer providing this service for her. The reason she is not currently seeing psychologist or psychiatrist is a budget decision as she is cannot afford to see private psychologist or psychiatrist.
Dr Sam Assad, in a report dated 27 July 2021, opined that Ms Aloi’s percentage of impairment based on the guidelines was 20 to 25%:
Ms Aloi has been a regular patient of our clinic since 2009. This is to confirm that Ms Aloi has been suffering from anxiety neurosis, panic attacks, adjustment disorder and reactive since her work cover related injury on 13/08/2018.
Since then, she lost her confidence, self -esteem and motivation. Moreover, she has been suffering from panic attacks, nightmares, flashback memories and severe insomnia.
Since then she has been under psychological counselling support. Lately she was advised to be started on antidepressant medicine to control her mood and to help her wellbeing as well as to improve her depressive disorder.
She is permanently incapable to do any job whether her normal duties or other alternative duties.
The prognosis for her condition is extremely bad giving her mental condition, her age, the long history of her mental illness.
I strongly believe that percentage of Impairment for the whole person is 20 to 25 percent as per guidelines.
Dr Nicole Moriarty, clinical psychologist, in a report to CBA dated 23 August 2021, opined:
Sessions with Angela have utilised CBT, Acceptance and Commitment Therapy, Interpersonal therapy and motivational interviewing to assist her in managing her depression. Angela rarely leaves her home, reports poor sleep hygiene, and has no social supports, outside of family. initially l conducted some psycho education sessions regarding depression, anxiety and trauma. This included education regarding the biopsychosocial model and how CBT and Act work.
Angela has struggled to take responsibility to manage her mental health. she has not been able to try to implement any suggestions regarding managing her mood. This includes monitoring the thoughts associated with her moods and applying ACT and CBT strategies to change her thoughts and/or manage her feelings. she has also struggled to implement any behavioural strategies, including going out for walks, and organising coffees etc with people. I suggested to Angela that she could discuss an antidepressant with her GP, Dr Sam Assad and she reported that he had told her she didn't require medication. Upon speaking to Dr Assad on 21/7/21 he informed me that he had suggested an antidepressant, and Angela had declined.
…
Angela has reported that I am unable to help because counselling is not enough. She also stated she will never feel better until her support people (family) change and be supportive of her. By this I believe she means be more empathic and meet her needs. Angela also says she doesn't believe in psychologists and because psychologists aren't in the same position as her they are unable to help. Despite being intellectually aware that Vets aren't animals, oncologists haven't all had cancer etc, Angela's perspective was not able to be shifted.
I believe that Angela is precontemplative regarding change. Angela has no drive or motivation to change how she feels. she believes if others change she will feel better. I believe that she has some personality disorder traits, especially in regards to her relationship with her children and siblings. I have concluded that Angela would be best suited to a therapeutic group setting, as she may benefit from seeing people who have experienced similar things to her but are at different stages of change. She may also benefit from being challenged by peers within a group setting.
Angela had an appointment on the 19/8/21 and failed to respond to the sms reminders. I have cancelled all of her future appointments, due to inability to attend.
Associate Professor Khalid report of 8 June 2021 opined:
Ms Aloi is receiving treatment with psychologist Ms Nicole Moriaty and she meets with her every three weeks. She takes some natural medication, Seremind. She is reluctant to take antidepressant medication. I consider that her symptoms would have improved if not fully remitted if she was adequately treated with an anti depressant medication. She would benefit from a trial of antidepressant medication preferably under the care of a psychiatrist. I do not propose any future investigations.
…
Ms Aloi's prognosis is guarded as her symptoms of adjustment disorder with mixed anxiety and depressed mood have become chronic. I do not consider that she has the capacity for employment taking into consideration her age, skills and experience.
…
Due to chronicity of her symptoms, I consider that her condition is permanent and the likelihood of improvement is remote unless she agrees to take antidepressant medication
Dr Sam Assad’s supplementary report of 27 February 2022, opined:
Ms Aloi has continued to suffer from the following symptoms since her psychological claim injury:
Feeling of lack of worth
Flashbacks and nightmares
Isolation and no interest in socialising
Tearful and emotional
Poor sleeping hygiene and insomnia
Low mood
Loss of motivation
Lack of self esteem
Very limited concentration span
Lack of interest in practising her hobbies and recreational activities
Lack of interest in her personal care
Ms Aloi added that before her workplace injury she was decisive, conscientious, reliable and hard working, success oriented and self-motivated. She also gave evidence to her statement that she continued to have good performance reviews until her workplace injury. Since then she has struggled to cope with her pre injury and also domestic duties on a daily basis.
Ms Aloi stated that she is incapable to offer her elderly parents any form of assistance because of her injury. Her younger sister resides with her parents and offers them assistance with their daily living arrangements.
Moreover, Ms Aloi needed assisted care from her son Mr Matthew Attana who lives with her on a full time basis.
He assists his mother with all domestic activities such as but not limited to cleaning, shopping, groceries, housekeeping duties and cooking, ect…
I conclude that the percentage of the whole body aggregate score of impairment is 20 percent, according to the severity of her symptoms and comcare guidelines of the permanent impairment claims.
I base my assessment rating of 20 percent of the whole body impairment on Comcare definition that the claimant can claim above 10 percent impairment providing that he or she can prove that he or she needs assisted care with his or her domestic daily activities by a suitably qualified person responsible in whole or part for care of the employee.
I strongly believe that the assisted care provided to her by her son who lives with her on a full-time basis, fits the above criteria for the definition of assisted care to the claimant.
Hence, I based my assessment of 20 percent whole body impairment for the employee.
Dr Assad’s certificate of capacity dated 4 August 2022, stated:
Her condition has recently exacerbated. I am considering starting her on medication diazepam as she is normally on serimind.
Associate Professor Khalid’s supplementary report of 27 September 2022 opined:
Without adequate treatment for her symptoms of depression her impairment may not be considered to be stable or likely to continue indefinitely. There is likelihood of improvement with treatment. She would benefit from treatment with antidepressant medication preferably under the care of a psychiatrist.
…
I consider that Ms Aloi’s impairment is still 10% although it may reduce if she receives appropriate treatment.
Contention
Permanent Impairment
Ms Aloi
Ms Aloi submitted the following:
(a)That CBA was now retracting everything it had said before the hearing and was now disputing her accepted condition was permanent;
(b)On her doctor's recommendation she had tried a few anti-depressant medications but they all gave her severe side effects. She did not remember the names of the anti-depressant medications she had tried because it was a couple of years ago but they did not agree with her whatsoever. She was now taking a herbal relaxant to assist with sleep, an over-the-counter tablet called Serernind. To assist in managing her symptoms, she also had regular sessions with a psychologist, although she was looking to change her one-to-one appointments to group sessions as Dr. Nicole Moriarty believes that group sessions would be more beneficial.
(c)She had always been under the direction of her general practitioner, Dr Assad, and he presently did not want her to go onto anti-depressant medications, as he did not want her to get addicted to them. Presently, he has prescribed Valium for her panic attacks but that was as far as treatment went as she suffers severe side effects from medication, stating at the hearing: “he does not want me to try them because of the way I am”. Both she and Dr Assad were against anti-depressant medications because they don’t want her to become addicted to the medication. She was hesitant about taking anti-depressant medications because of what she had read and heard about them, the myths had concerned her, and she was not prepared to regardless of the benefits they may offer her. Other doctors may recommend such treatment but hers did not.
(d)Dr Assad did not take copious notes during their consultation, like a lot of doctors he is too busy dealing with patients but that didn’t mean she had not discussed many things with him or that he was unaware of her adverse reaction to medication. She had been admitted to hospital suffering from COVID-19 as she had such bad reactions to all the medications and vaccines.
(e)She had suffered a panic attack after the first day of the hearing and Dr Assad had spent half an hour with her via telehealth to help her deal with the situation, he didn't write a story, claiming GPs don't do that. Dr Assad is thorough, has helped her so much, he shows so much empathy, she couldn’t express more about having Dr Assad as a doctor and she was guided by him in all her treatment.
(f)She suffers from a mental condition that you could not see but greatly impacted her and her condition was deteriorating rapidly.
(g)She firmly believes that she has undertaken all reasonable treatment and had done the best she could for herself.
CBA
In its original written submission to the Tribunal, CBA did not dispute that Ms Aloi’s accepted condition resulted in an impairment that is permanent. CBA contended in its original written submission that the only issues in dispute were the assessment of the degree of impairment suffered by Ms Aloi and her entitlement to compensation pursuant to ss 24 and 27 of the SRC Act.
At the hearing, Counsel for CBA contended that CBA’s perspective had altered in light of recent developments, notably the exacerbation of Ms Aloi’s condition as noted in Dr Assad’s certificate of capacity of 4 August 2022. CBA submitted they now viewed any impairment as not permanent.
Counsel for CBA submitted that as Ms Aloi had not undertaken all reasonable non-invasive treatment recommended and readily available to her, her impairment could not be considered permanent.
Counsel for CBA submitted s 24(2) of the SRC Act requires the following factors to be taken into account:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
Counsel for CBA submitted the evidence indicated that there was likelihood of improvement in Ms Aloi as:
(a)Dr Assad was looking to re-engage Ms Aloi with a new psychologist,
(b)Ms Aloi's condition was likely to improve with antidepressant medication and psychiatric treatment; and
(c)Associate Professor Khalid opined her condition would improve or remit with antidepressant medication and psychiatric treatment if first line of antidepressant medication didn't work.
Counsel for CBA submitted that Ms Aloi had not undertaken reasonable treatment for her condition and therefore her condition could not be considered permanent. Counsel for CBA submitted that reasonable rehabilitative treatment had been defined in the matter of Comcare v Filla (2002) 115 FCR 163 at 165-6, noting that it was a two-step approach:
However, the question of whether it was reasonable or unreasonable for the employee to refuse rotator cuff surgery in the context of her knowledge of the risks, the prospects of success, the possible adverse consequences and other relevant factors is not the question that is posed by s 24(2). The primary judge correctly stated the position in his reasons for judgment where his Honour said:
"It is my view that par 24(2)(c) of the SRCA raises in substance at least one and possibly two questions for Comcare (or, on a review by the AAT of a decision made by Comcare, the AAT): first, what, if any, reasonable rehabilitative treatment exists for the particular impairment whose permanence is under consideration; and, secondly, assuming that some reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration, has the employee undertaken all of it?"
Later his Honour said:
"The only purpose of requiring those two questions to be answered is that their answers will assist in the determination of whether the particular impairment under consideration is a permanent one. In other words, it is not the purpose of par 24(2)(c) of the SRCA to re-enact the `piece of judicial legislation' regarding mitigation of damage dealt with in Fazlic."
…
Whether the rotator cuff surgery is "reasonable rehabilitative treatment" is a question of fact that would have to take account of many factors, including the risk of failure and the possible extent of the benefit of the treatment, particularly when compared to the present position. Whether or not it was reasonable for the respondent to refuse to undertake rotator cuff surgery is quite a different question from whether, considering the prospects of success, risk of adverse consequences, pain, discomfort and inconvenience necessarily involved in the operation when compared with the measure of success that might possibly be achieved, and other factors, the rotator cuff surgery may fairly be described as "reasonable rehabilitative treatment".
Indeed, it may be that treatment which offers just a chance of restoring a person to her pre-injury condition is not properly to be described as "rehabilitative treatment". Where the prospect of "restoration" involves a not insignificant possibility of failure, it is a question whether such treatment is truly "rehabilitative treatment". The Shorter Oxford English Dictionary relevantly defines "rehabilitate" as: "To restore to a previous condition; to set up again in proper condition."
Counsel submitted the question for the Tribunal was not whether it was reasonable or unreasonable for Ms Aloi to refuse the treatment but what, if any, reasonable rehabilitative treatment exists and whether Ms Aloi has undertaken it all. Counsel submitted there was reasonable treatment for Ms Aloi’s condition, being antidepressant medication and psychiatric treatment. Counsel submitted that of the treatments available, none were intrusive, none were dangerous, and whilst there was evidence before the Tribunal of risk of side effects, this needed to be considered against Associate Professor Khalid’s evidence that 5-10% of patients suffer side effects, but one had to balance side effects with potential benefits.
Counsel submitted that the evidence indicated that Ms Aloi had been recommended reasonable treatment of re-engagement with a psychologist to participate in group therapy, and if necessary, escalation to review by a psychiatrist. Counsel submitted that Associate Professor Khalid’s evidence was that Ms Aloi’s adjustment disorder with mixed anxiety and depressed would improve markedly if she trialled antidepressant medication to the extent that her symptoms may remit.
Counsel submitted that the evidence indicated that Ms Aloi has undertaken sporadic attendance at her psychologist, been referral to a psychiatrist but had not attended, and had not taken antidepressant medication. Therefore, she had not undertaken reasonable rehabilitation treatment available, and this weighed against her impairment being permanent. Additionally, Counsel submitted that Ms Aloi’s condition had worsened since August of this year which indicated that her condition was not stable and not permanent. Counsel submitted that Ms Aloi’s condition was chronically under treated, and it was too soon to call it permanent.
Counsel contended that Ms Aloi’s refusal to take antidepressant medication was an irrelevant consideration for the Tribunal. Counsel took the Tribunal to the decision of Hassan Bin Tahal v Comcare [2004] FCA 680 at [5]-[9] which they contended was similar to the facts of Ms Aloi’s application and urged the Tribunal to arrive at a similar result:
It is not in dispute in this case that there is medication available for the treatment of the condition from which the applicant suffers, and there was no dispute among the doctors in relation to such availability. But the Administrative Appeals Tribunal (‘the AAT’) found that to take the treatment, or to take the medication, would improve the condition. The Deputy President was not unmindful of the common law position and made specific findings in relation to the position of the applicant in this case. He said, in par [29]: ‘[29] This is not a case where the applicant is suffering from a mental disorder of such severity that his fear of treatment is due to an irrational mindset.’
That obviously indicates the common law test as to whether or not the presence and operation of an irrational mindset can be a ground of reasonable refusal. The Deputy President continued:
‘ ... The Applicant has only very mild psychiatric illness. He will never know whether or not he has any problems with treatment and medication until he tries it.’
In par [25] of his reasons, the Deputy President sets out the reasons given by the applicant as to his refusal to take the medication and whether or not it is reasonable having regard to his condition earlier in par [28]. The Deputy President makes the following finding in relation to treatment for the condition in par [25]:
‘The Applicant has never been treated for his psychiatric condition by any qualified medical practitioner. He prefers to use herbal remedies and other forms of rehabilitation like meditation, Karate and basketball. The Applicant claims that he does not take medications because of his martial arts beliefs and also because of a fear of “side effects”. He admitted that he did not know what side effects he was afraid of.’
Having regard to the reasons of the Tribunal, it cannot be said that the Tribunal failed to take into account the operative effect of any psychiatric condition from which the applicant is suffering in determining whether or not the refusal to take the medication was reasonable.
Having regard to the findings, the conclusion that the Deputy President came to was a correct one because the test which was set out in Filla was operative in the present case. That is, there was a course of medication available for treatment which would have been efficacious to some extent, and there had been a refusal to take it.
Accordingly, the application must fail in respect of the first issue.
Counsel contended that Ms Aloi’s evidence that Dr Assad had not recommended antidepressant medication to her because he knew of her adverse reaction to medication was contrary to the facts that Dr Moriarty had noted: “Upon speaking to Dr Assad on 21/7/21 he informed me that he had suggested an antidepressant, and Angela had declined”. Counsel argued there was nothing in Dr Assad’s notes about Ms Aloi having severe side effects to all medication. This, they argued, was also at odds with her ability to tolerate diazepam and migraine medication. Additionally, Counsel submitted that Ms Aloi simply could not know if any antidepressant would cause her side effects as she had not taken any and this was at odds with her willingness to tolerate the side effects of diazepam. Counsel submitted that Ms Aloi had been labouring under the misunderstanding that antidepressant medication was addictive, but the evidence of Associate Professor Khalid had been that the medication was not addictive, but it was recommended that people stay on them for 6-12 months and only 5-10% of people suffer side effects. Counsel submitted that Ms Aloi’s reluctance to trial any antidepressant medication was not reasonable in the circumstances.
Counsel contended that Ms Aloi’s evidence had been her involvement in the litigation of her claim had impacted her symptoms, finding the whole process extremely stressful, and did not accept that her condition would resolve or reduce once the matter had been finalised. However, Counsel submitted the Tribunal should prefer Associate Professor Khalid’s view that Ms Aloi’s condition would improve once her litigation was finalised.
Degree of Permanent Impairment
Ms Aloi
Ms Aloi submitted the following at the hearing:
(a)Dr. Assad had been her treating doctor from almost the beginning of her stress leave, which was 13 August 2018. The initial doctor left the practice shortly after, and that's when Dr. Assad took over as her treating doctor. She stated that it is hard to comprehend how someone who doesn't know you, or hasn’t been there every step of the way, can make an assumption in a short space of a 45-minute interview.
(b)CBA had accepted that she had a 10% permanent impairment but all of a sudden, they were coming up with new things.
(c)Her son’s contribution to her very existence could not be underestimated. She did have a need for someone to help her with ADL, whether you called that supervision or a need, she required help every day to manage.
(d)That everything thing had changed in the last year and she needed her son to be at home with her.
(e)That you have to be very incapacitated to get external help and that was not an option for her. Her son was not just contributing as an adult child living at home would; he was providing her with constant support and care. She did not like having her son’s help but she needed his help. She stated that if it wasn’t for her son, she didn’t think she would still be here.
(f)She forced herself to get out of bed. She struggles to get out of bed most days and her son will often find her in bed when he gets home from work.
(g)Her participation in the hearing was an extraordinary effort, as she had to participate and did not expect it to be so overwhelming and it had taken a great deal out of her.
(h)She stated that it needed to be recognised that she suffered from a mental not physical disability, and her mental disability affected her greatly as she suffered low motivation and lack of self-esteem.
(i)She argued that claiming she was not permanently impaired because she managed to open her computer and attend the hearing was ridiculous as she had to attend, and it goes against all the evidence she and Dr Assad had provided.
(j)She argued that reference to other cases was irrelevant because this case was relative to her and her only.
(k)Whilst CBA had accepted some ownership of her situation and had apologised that this had happened to her at work, nothing had happened to the guy that made of this happen to her.
(l)She had been advised during the AAT process that Dr Assad’s report was vague, and to seek another report which she did at great expense to herself. She had provided the Guide to Dr Assad which he had followed. Her doctor understood that she needed supervision on a daily basis, and he was adamant that she met the 20% criteria, he was sticking to his opinion and advised her to challenge the decision. She understood that this process was not going to assist in her recovery, but her doctor knew her best and she was guided by him.
CBA
Counsel for CBA submitted that if the Tribunal found Ms Aloi’s accepted condition resulted in a permanent impairment, that her impairment does not rise above 10%, based on the assessment of Associate Professor Khalid in his report of 8 June 2021 which had regard to Table 5.1 of Guide.
Counsel for CBA submitted that the main hurdle to an assessment of greater than 10% was the need for Ms Aloi to demonstrate that she required some supervision and direction in activities of daily living under figure 5A of Guide.
CBA contended that "supervision" means the immediate presence of a suitable person, responsible in whole or in part for the care of the employee, whilst "suitable person" means a person capable of responsibly caring for the employee in an appropriate way.
CBA contended that "Direction" means the provision of direction to Ms Aloi by a suitably qualified person, responsible in whole or in part for the care of her, whilst "suitably qualified person" means a person with the necessary qualifications, experience and skills to provide appropriate direction. Such persons include medical practitioners, nursing staff and clinical psychologists.
CBA’s written submission took the Tribunal to the matter of O'Connell and Comcare [2012] AATA 532 at [45] (which CBA noted that on appeal to the Federal Court, this approach was described as unimpeachable) where the Tribunal said:
When determining whether an injured employee needs some supervision and direction in activities of daily living, it is necessary to assess the overall effect of the injury on the particular person as well as the character and content of the interaction that person has with others who are suitably qualified to provide direction in activities of daily living. For a person who is only mildly affected, encouragement to do something or not, or to do it differently may not meet the test of “some” “direction”, whereas for a person who is badly affected, encouragement may well rise to a higher level of guidance and instruction, thereby meeting that test. Each case will turn on its own facts and must be assessed on its merits.
CBA’s written submission contended that Ms Aloi did not satisfy the criteria of having a need for some supervision in ADL because she is independent in each and every ADL set out in Figure 5A. They took the Tribunal to the following:
(a)Initial Assessment Report dated 17 December 2019 in which Ms Aloi reports that she is independent in her activities of daily living, self-care and can undertake most household tasks at her own pace;
(b)Personal Life Claim dated 23 August 2019 in which Dr Assad relevantly noted that Ms Aloi had no restriction in following basic instructions, performing work tasks, maintaining concentration, maintaining energy, relating to others (socialising), problem solving and retention of information;
(c)Records of Dr Nicole Moriarty, entry dated 4 June 2020 which notes “do groceries – go do it – go home”;
(d)Records of Dr Nicole Moriarty, entry dated 25 March 2021 which notes “For her 60th had several catch ups with her kids, and then her parents and siblings, and her cousin. Daughter has visited and vice versa”.
CBA’s written submission contended that Ms Aloi was not provided with supervision by any suitable person. This, they contended, was demonstrated in Ms Aloi’s request for a reconsideration of the primary decision, where she noted the limited supports, she has available to her.
I don’t have much in the way of family support.
…
I only have one son that resides with me, but he works full-time. He helps with the chores, and when I require his assistance with household activities.
…
Although my son lives with me, his work keeps him busy and on the weekend he is out with friends.
CBA’s written submission contended that there was no evidence that Ms Aloi’s son provided supervision, other than Dr Assad stating so in his report of 27 February 2022. Additionally, they submitted that there was no evidence as to the specific tasks, if any, he performed within the household, let alone whether:
(a)those tasks relate to any of the ADL in Figure 5A;
(b)the tasks performed by her son are in response to a “need” as opposed to the provision of assistance, as discussed in the decision of King and Comcare [2011] AATA 500 at [39];
(c)the tasks performed by her son are simply the normal contribution to the running of a household by an adult member of that household;
(d)her son provides any guidance and instruction to her, as opposed to the normal encouragement and support that a son would ordinarily provide to his mother, as in the matter of Winter and Comcare [2014] AATA 811;
(e)Ms Aloi’s son provides supervision to her.
CBA’s written submission contended that it may certainly be the case that Ms Aloi finds it helpful to have assistance and guidance from her son but submitted that there was no evidence which demonstrates hat Ms Aloi had a need for any supervision from him. In this regard, CBA submitted it was important to bear in mind that her son has a full time job and is away from Ms Aloi during working hours on weekdays, and is out with friends on the weekend. There was no evidence that the Applicant is not able to manage at home by herself when her son is absent.
CBA’s written submission contended that it was also clear from the evidence before the Tribunal that not only is the Applicant fully independent in her own ADL, but she has the capacity to provide care and assistance to others. The Initial Assessment Report dated 17 December 2019 indicated that Ms Aloi’s symptoms are relieved when she has an activity to undertake that takes her mind off things such as caring for family members.
CBA’s written submission contended that Ms Aloi does not satisfy the criteria of having a need for some direction in ADL because:
(a)she is independent in each and every ADL set out in Figure 5A; and
(b)there is no evidence that she requires any suitably qualified person to provide direction to her. Certainly, Dr Assad has not stated that he provides Ms Aloi with any direction and there is not currently any other “suitably qualified person” from whom the Applicant could be provided with direction.
Counsel for CBA submitted that irrespective of Ms Aloi’s evidence at the hearing about requiring support and supervision from her son, there was still no evidence that anyone was providing her direction with ADL. There was certainly no evidence that Ms Aloi was receiving supervision from a suitably qualified person. Counsel argued that the only suitably qualified person providing care to Ms Aloi was Dr Assad and her evidence was he was not providing direction in her ADL.
Counsel for CBA submitted that Associate Professor Khalid’s evidence was Ms Aloi had no need to be provided with direction in ADL. Counsel submitted that Associate Professor Khalid maintained his view about Ms Aloi’s percentage of impairment regardless of his being informed of her recent deterioration. Associate Professor Khalid’s evidence was that Ms Aloi’s deterioration was irrelevant if her symptoms had not deteriorated to the point that it gave rise to a level of needing direction in ADL.
Counsel for CBA submitted there was nothing in Dr Assad’s reports or medical records which were consistent with Ms Aloi having a need for direction nor was there any evidence that Ms Aloi has anyone coming into her home to provide her with additional care.
Counsel for CBA submitted that there was no medical evidence before the Tribunal to corroborate that Ms Aloi’s accepted claimed conditions had deteriorated nor was there evidence to indicate it had been significantly contributed to by her employment at CBA. Counsel submitted that Associate Professor Khalid’s evidence was that Ms Aloi’s adjustment disorder should have resolved within six months and he opined that her recent deterioration could be due to other factors but was unable to express a view.
Counsel for CBA submitted that Ms Aloi’s evidence that her son provided her with care and supervision needed to be examined and considered in light of other evidence, particularly that contained in medical reports and the initial assessment undertaken by Konekt Workcare.
Counsel for CBA submitted that the evidence from Ms Aloi was that her son leaves for work between 3-4 am and returns between 2-4 pm, he works full time, he helps with chores which he does himself, he doesn't supervise, that he is busy during the week when he is at work and not available to provide supervision and no one else comes in his absence. This, they contended, demonstrated that for a significant period of the day, she is alone without supervision.
Counsel for CBA submitted that there was nothing in Dr Assad's records which documents that Ms Aloi has any need for supervision in ADL and no referral to any outside organisations had been made to seek such support. Further, Ms Aloi had made no requests to CBA for supports.
Counsel for CBA submitted that Ms Aloi is able to attend to her ADL in the absence of her son. The evidence indicated that she was able to get out of bed and get dressed for the Tribunal hearing and she had required no supervision or assistance during the two-day hearing, which was contrary to her evidence that she is unable to get out of bed without her son’s urging and also contrary to her assertion that her son is the only reason she is still here.
Counsel for CBA submitted that the definition of supervision requires the immediate presence of a suitable person, that her son’s extended absences mean he is not geographically immediately present, and that he initiates phone calls to Ms Aloi falls well short of him being immediately present to provide supervision.
Non-economic loss
Ms Aloi
Ms Aloi submitted that she was unclear about the claim for non-economic loss but stood by Dr Assad’s finding as he knew her best and she accepted his opinion and not that of Associate Professor Khalid as he had seen her only once for 45 minutes.
CBA
Counsel for CBA submitted that the only dispute in relation to the assessment of Ms Aloi’s entitlement to compensation pursuant to s 27 of the SRC Act appears to be the applicable rating allocated to her in respect of “suffering”. Dr Assad assessed the Applicant as a 4 for suffering, whereas Associate Professor Khalid assessed a 3.
A score of 3 for suffering corresponds with:
Symptoms of mental distress are distinct and varied.
Episodes of mental distress occur regularly.
Ability to cope or perform activity effectively reduced during episodes.
Needs time to recover between episodes.
Treatment—medication such as anti-depressants, counselling or other therapy by a psychologist or psychiatrist, or other supportive therapy—is of benefit in controlling or relieving symptoms.
Whereas a score of 4 for suffering corresponds with:
Symptoms of mental distress are wide ranging and tend to dominate thinking.
Rarely free of symptoms of mental distress.
Difficulty coping or performing activity.
Treatment necessary either to control or relieve symptoms.
Counsel for CBA submitted that the appropriate score for suffering is 3, for the reasons set out in Associate Professor Khalid’s report dated 19 July 2021
Counsel for CBA submitted Associate Professor Khalid’s report of 19 July 2021 explained why he had settled on a score of 3, as he noted that Ms Aloi can shower, change her clothes every day, was able to attend to her ADL, undertook minimal chores such as groceries and cooking, and maintained a relationship with her children.
Counsel for CBA submitted that Associate Professor Khalid’s evidence that Ms Aloi is not taking any antidepressant medication indicated that she did not meet the criteria for a 4 rating as treatment was necessary to control symptoms and in the absence of treatment the score could not rise to 4 in suffering.
Consideration
Permanent Impairment
In summary, CBA would be liable to pay permanent impairment compensation under the SRC Act in relation to Ms Aloi’s accepted claim if it results in a “permanent impairment”. In order to determine whether Ms Aloi has a permanent impairment, the Tribunal must have regard to whether Ms Aloi has undertaken all reasonable rehabilitative treatment for the impairment.
Prior to the hearing there was no dispute between the parties that Ms Aloi’s accepted claim had resulted in a permanent impairment. At the hearing, CBA contended that Ms Aloi’s impairment could not be considered permanent as she had not undertaken all reasonable treatment. Counsel asserted that this new position was informed by Dr Assad’s medical certificate of 4 August 2022 where he opined her condition had deteriorated.
Whilst the Tribunal is fully cognisant of the fact that its determination is de novo, it was still perplexed by CBA now disputing that Ms Aloi’s impairment was permanent. CBA had previously accepted Ms Aloi’s permanent impairment claim when they were fully appraised of her reluctance to trial antidepressant medication, as the following evidence clearly demonstrates:
(a)Konekt Workcare report dated 17 December 2019:
She has also been prescribed antidepressant medication by her treating general practitioner however she is reluctant to take medication due to the potential for side effects and dependency.
(b)Dr Allan’s report, dated 4 June 2019:
I regard her as potentially benefiting from the trial of an SSRI antideppresant medication but she indicates her reluctance to pursue such treatments at this time based on the information available to her about such medications.
…
Given how severely unwell she is and the lack of appropriate treatment. being utilised, I do not anticipate she will be able to return to any meaningful work within the next twelve months.
(c)Dr Lewis’ report 12 June 2020:
The psychiatric condition cannot be regarded as having stabilised until Ms Aloi has had robust trials of antidepressant medication and more sustained psychological therapy. I note that antidepressant treatment to date has been complicated by side effects.
(d)Associate Professor Khalid’s report of 8 June 2021:
Due to chronicity of her symptoms, I consider that her condition is permanent and the likelihood of improvement is remote unless she agrees to take antidepressant medication
The Tribunal was not persuaded that CBA could assert that Dr Assad’s medical certificate of 4 August 2022 indicated that Ms Aloi’s condition had deteriorated, Dr Assad’s certificate states Ms Alois’s condition had “recently exacerbated”. It was of no surprised to the Tribunal that Ms Aloi, as a self-represented Applicant, advised her doctor that she was feeling heightened anxiety on 4 August 2022, given that was the day CBA informed the Tribunal and Ms Aloi that it was not ready to proceed to the listed hearing of 8 -11 August 2022 because of an administrative error on its part.
The Tribunal also places little weight on Associate Professor Khalid’s supplementary report of 27 September 2022, which CBA requested because it submitted that Ms Aloi’s condition had deteriorated, based on Dr Assad’s medical certificate of 4 August 2022. For a variety of reasons, Associate Professor Khalid did not speak to or see Ms Aloi when undertaking his second review, instead he had relied on his original assessment and other reports. The Tribunal was not persuaded by Associate Professor Khalid’s opinion in this assessment that Ms Aloi’s condition was likely to improve. The Tribunal, based on the weight of evidence, finds that Ms Aloi has in fact expressed a desire to improve her psychological condition, however the evidence indicates that she was stuck in the precontemplative stage of change, given her reluctance, rebellion, resignation and rationalisation to any treatment over many years.
In respect of the question of reasonable treatment, Counsel for CBA advised the Tribunal it needed to exercise a degree of caution when analysing and considering Ms Aloi’s evidence. Whilst Counsel did not suggest that Ms Aloi was intentional misleading the Tribunal, they did observe that there were a number of instances where her oral evidence contradicted the written evidence. Counsel submitted the following contradictions to form the basis of their assertion that Ms Aloi's version of events should only be accepted where corroborated by documentary evidence:
(a)the reconsideration decision suggests that Ms Aloi had tried antidepressant medication and had severe side effects, yet they submitted that Dr Assad’s notes clearly indicate she has not tried them;
(b)Ms Aloi’s insistence that Dr Assad did not want her to go on antidepressant medication was not supported by Dr Moriarty’s record of her conversation with Dr Assad, which indicated that Dr Assad had recommended antidepressant medication, but Ms Aloi had refused; and
(c)Dr Moriarty’s notes indicated that Ms Aloi had “catch ups” for her 60th birthday with family members, but Ms Aloi explained that this was a note of her aspirations rather than what she actually did, but the note post-dates her birthday and is written in past tense, therefore the Respondent submitted that it is clear that the note reports events which actually occurred, not those which were aspirational.
The Tribunal did not find Ms Aloi to be an unreliable witness. The Tribunal found Ms Aloi was completely consistent in her belief that she had undertaken all reasonable rehabilitative treatment available to her for her impairment.
The Tribunal notes the medical evidence consistently refers to Ms Aloi’s fixated ideas, precontemplative regarding change and struggled to take responsibility to manage her mental health. The Tribunal observed that Ms Aloi is fixated in her belief that trialling antidepressant medication is not an option available to her as she was adamant that she would suffer serious side effects, firmly believes that would be at risk of addiction, and that her general practitioner, Dr Assad, is averse to prescribing her antidepressant medication.
The evidence of every treating medical practitioner who has seen Ms Aloi, including her general practitioner Dr Assad, has recommended Ms Aloi trial antidepressant medication. The evidence of their effectiveness on Ms Aloi was of course unknow but most of the doctors opined that Ms Aloi’s chronic symptoms would be permanent and would not improve unless she agreed to undertake a course of antidepressant medication. The Tribunal drew no inference from the fact that Dr Assad did not appear as a witness for the Applicant but did note inconsistencies in his recommendations and approach to treatment of Ms Aloi’s chronic symptoms of adjustment disorder with depressed mood and anxiety.
The Tribunal finds that Ms Aloi had experienced negative reactions to medication, based on the following medical records:
Saturday August 21 2021 17:14:49
Dr Sameh Georgy
Visit type: Surgery Consultation
History: vomiting yesterday x 6 after taking alprim for uti ? , which has been stopped now vomitn settled yestrday, mid day no fever abd soft, lax
History: oral fluids plain foods
Friday August 20 2021 18:14:41
Dr Paul Mak
Visit type: Telehealth
Verbal consent obtained for the phone consultation from the patient/carer;
Identity confirmed;
Phone consultation was preferred. taken just 2 Triprim fr last night; not done MSU; ? VOMITED few times, now dry wretched; no dysuria
Management: Reassurance given, and conservative treatment explained. - Hydralyte till tmr
Advised to return for review if not better.
The Tribunal finds that Dr Assad had offered Ms Aloi the option of commencing antidepressant medication, based on the following medical records:
Wednesday July 21 2021
Dr. Sam Assad
Visit type: Telephone
A CALL FROM THE PSYCHOLOGIST AFTER CONSENTING THE PATIENT TO TLAK WITH HER OVER THE PHONE RAISING CONCERNS ABOUT MS ALOI'S MENTAL HEALTH AND HR IMMENSZE NEED FOR ANTIDEWPRESSENT AND ADVISED THAT PATIENT DECLINE THE NEED TO BE STARTED ON ANTIDEPRESENT. SHE ALSO ADDED THAT THE CLAIMANT IS NOT COMPLIANT WITH HER PSYCHOLOGICAL SESSIONS AND SHE ADDED THAT SHE MAY WITHDRAW HER CARE TO HER SHORTLY
Friday July 16 2021 23:54:44
Dr. Sam Assad
Visit type: Telephone
anxiety adn stress related to her previous job she was counselled adn also she was offere to be stsrated on anti depressent adn se declined the offer adn also renewal of her w/c certificate
Monday August 31 2020 21:33:02
Dr. Sam Assad
Visit type: Telehealth
Actions: Letter Created to W/C.
Letter Printed to W/C.
NOT WELL ANXIOUS AND NOT WELL AND DSICUSSED THE NEED OF ANTIDEPRESSENT
Prescription added: MELATONIN SR TABLET 2mg 1 nocte m.d.u.
Prescriptions printed: MELATONIN SR TABLET 2mg 1 nocte m.d.u
Friday January 17 2020 14:36:16
Dr. Sam Assad
Visit type: Surgery Consultation
Actions: Letter Created to W/C Letter Printed to W/C.
ANXIETY NEUROSIS FOR COUNSELLING AND REVIEW PRN Prescription added: EXECUTIVE B STRESS FORMULA TABLET 1 daily m.d.u.
Prescriptions printed: EXECUTIVE B STRESS FORMULA TABLET 1 daily m.d.u
The Tribunal finds that Ms Aloi has undertaken all reasonable rehabilitative treatment for her impairment. The Tribunal considers that, whilst declining antidepressant medication, Ms Aloi had undertaken psychological counselling both via the CBA counselling service offered to staff and with Dr Moriarty. Additionally, Ms Aloi has taken medication prescribed by Dr Assad as outlined in the above medical records to deal with her symptoms. The Tribunal also relied on Dr Assad’s reports in which he indicated that he was treating Ms Aloi’s symptoms:
(a)Konekt Workcare report dated 17 December 2019:
Dr Assad opined that he felt the proposed psychological treatment was unlikely to result in a significant improvement in symptoms. He advised his treatment plan is based on managing Ms Aloi’s symptoms
(b)Dr Assad’s report dated 29 September 2019:
Ms Aloi has been treatment in the past for her mental illness with diazepam as an anti-anxiety agent, Temazepam and a sleeping agent and also alternative medicine called valerian forte to help her broken sleeping pattern. Currently, she is medication free. She was seeing psychologist through her employer on regular basis to assess and support her mental condition but unfortunately, the employer stopped offering her this service to her,
Associate Professor Khalid’s report of 27 September 2022 notes that Ms Aloi has taken medication for anxiety, was unclear on the medical records if she had trialled antidepressant medication, and was still guarded about whether her symptoms were likely in improve with an antidepressant medication:
It is not very clear whether Ms Aloi has taken antidepressant medication on a consistent basis. Diazepam is an antianxiety medication and does not treat symptoms of depression. I consider that Ms Aloi would benefit from treatment with an antidepressant medication and her symptoms are likely to improve with six to 12 weeks of treatment although the antidepressant medication may have to be continued for six to 12 months.
The Tribunal finds that Ms Aloi’s accepted claim resulted in a permanent impairment. In many respects the Tribunal considers Ms Aloi is her own worst enemy as her resistance to trialling antidepressant medication is entrenching the chronicity of her symptoms. However, whilst Ms Aloi’s symptoms are likely to improve with antidepressant medication, given the long history of her condition and its chronicity, the Tribunal considers that her condition of adjustment disorder with depressed mood and anxiety is permanent.
As the Tribunal has found Ms Aloi’s accepted claim resulted in a permanent impairment, it must next consider the percentage of impairment under the provisions of the Guide and any non‑economic loss suffered by Ms Aloi as a result of her impairment.
Degree of Permanent Impairment
Member Webb in the matter of O'Connell and Comcare at [25] helpfully sets out the assessment criteria for determining the percentage of impairment, each level ranging from 5 to 40:
… each level contains specific psychiatric criteria (set out in dot points) but is preconditioned by a criterion relating to the performance of activities of daily living. Preconditioning criteria relating to the performance of activities of daily living increase according to a hierarchy of need for assistance, supervision and direction – at the five and 10 percent level, the criterion is that the employee is capable of performing activities of daily living without supervision or assistance; at the 15, 20 and 25 percent level, the criterion is a need for some supervision and direction in activities of daily living
As with the matter of O’Connel,l the issue in contention between the parties in this matter is Ms Aloi’s need for some supervision and direction in Activities of Daily Living. The words “need for some supervision and direction in the activities of daily living” contains several important concepts, as outlined by Member Webb in O’Connell and Comcare at [26]:
(a) there must be a ‘need’, that is, something necessary that is lacking, wanting or required, whether or not it is fulfilled
(b) the subject of need is comprised of two conjunctive measures of impairment supervision and direction
(iii) by definition, ‘supervision’ is the immediate presence of a ‘suitable person’ who is responsible, in whole or in part, for the care of the employee and who is capable of responsibly caring for the employee in an appropriate way;
(iv) by definition, ‘direction’ is the provision of direction to the employee by a ‘suitably qualified person’ who is responsible, in whole or in part, for the care of the employee and who has the necessary experience and skills to provide appropriate direction to the employee;
(c) the amount or degree of supervision and direction needed is conveyed in the word ‘some’, meaning “any amount at all, even the very minimum”10, “putting matters of de minimus to one side”;
(d) the need for supervision and direction relates to the performance of ‘activities of daily living’ as set out in Figure 5-A, being defined in the Glossary to mean ‘those activities the employee needs to perform in order to function in a nonspecific environment (that is, to live)’, but this does not require all, or most, or any particular one of the listed activities to be adversely affected; and
(e) the employee’s performance of activities of daily living is to be measured by reference to primary biological and psychosocial function.
The Tribunal notes that at first glance the Guide would indicate that Ms Aloi met the criteria for 20% impairment as she has modified her daily living patterns in reaction to her stressors, she is showing marked disturbance in her thinking and exhibiting disturbance in her behaviour and to cope with this she does need some supervision in ADL from her son and some direction from her general practitioner. The Tribunal appreciates then that from Ms Aloi and Dr Assad’s perspective she therefore meets the criteria for 20% impairment.
However, as clearly outlined in the reconsideration decision form CBA of 27 August 2021, the Guide must be read in context with the explanatory note:
For an assessment of more than 10%, the Guide stipulates that there is a need for supervision and direction (in addition to other criteria). The explanatory notes to Part 1 Division of the Comcare Guide to the Assessment of Permanent Impairment provide that
"Supervision means the immediate presence of a suitable person, responsible in whole or in part for the care of the employee. Assistance means the provision of assistance to the employee in performing the activities of daily living by a suitable person, responsible in whole or in part for the care of the employee.
Direction means the provision of direction to the employee by a suitably qualified person, responsible in whole or in part for the care of the employee.
The Tribunal does not find that the evidence supports Ms Aloi’s assertion that she requires her son’s supervision to function, nor was there evidence to support the contention that she requires Dr Assad’s direction to function. The Tribunal finds that Ms Aloi is highly reliant on her son for all aspects of her ADL, but the evidence does not indicate that this rises to the level that she has a need for his support to function (i.e. to live) nor is he always immediately present to support her. The Tribunal also finds that Ms Aloi is highly dependent on Dr Assad, but again the evidence does not indicate that she has a need for his direction to function (i.e. to live).
In reaching this determination, the Tribunal relied upon Ms Aloi’s evidence at the hearing:
Ms Aloi: Look, work kind of keeps him busy, look apart from that he’s basically, you know, when he’s home, he’s home for me. You know, he’s doing the chores that I can’t do and he’s basically here to assist me.
Respondent Counsel: which chores do you say he does?
Ms Aloi: He comes home, he does the cooking, washing, whatever I can’t attend to, he is basically here for me.
Respondent Counsel: Does he do those chores himself or does he help you to do them?
Ms Aloi: No, no he does them.
Respondent Counsel: When Matthew is at work or out on the weekend, I take it you're able to cope on your own?
Ms Aloi: Define the definition of coping. Coping as in, well I have no option but if I don't have that moral support or physical support, well then coping is I’m basically at home, most of the time I’m, you know, lying down or sitting or not doing nothing until he comes home and assists me with work.
Respondent Counsel: Alright, so if Matthew is at work, I take it you are able to look after yourself, you're able to shower without assistance, is that right?
Ms Aloi: Yes
Respondent Counsel: You're able to get dressed without assistance?
Ms Aloi: Yes
Respondent Counsel: You can prepare food for yourself?
Ms Aloi: Look, to be honest, no. Food as in I have a Salada biscuit but there’s not much required to make it. If there’s anything required as far as making or doing chores or, you know, doing something that needs more work, then no. I don't have the capability.
Respondent Counsel: You can make a sandwich?
Ms Aloi: Making a sandwich – Look, most of the time I go without breakfast or lunch and then, you know, I might have a snack like a piece of fruit or something or a salada biscuit that doesn’t require much.
Respondent Counsel: And in terms of communication, I mean you are participating in this hearing, you participated in telephone directions hearings you don't need any assistance from anyone in relation to communicating with others, do you?
Ms Aloi: No but then, like I said, that’s a broad questions, like, yes as far as interacting but then my social withdrawal has deteriorated.
Respondent Counsel: Alright, but you can hear us properly without any assistance?
Ms Aloi: Of course
Respondent Counsel: And you can speak without assistance?
Ms Aloi: Yes
Respondent Counsel: You can read without assistance?
Ms Aloi: I guess so.
Respondent Counsel: You can write without assistance?
Ms Aloi: Yes
Respondent Counsel: You can use a computer and a keyboard?
Ms Aloi: Very minimal, very minimal, if it’s just basic stuff very minimal.
Respondent Counsel: But you are participating in this hearing using a computer and Microsoft Teams, that’s something you’ve been able to do successfully?
Ms Aloi: Well that’s only basic, very basic, there’s nothing much required to get onto the computer and click one button into Microsoft.
Respondent Counsel: But you didn't need anyone to help you to do that, did you?
Ms Aloi: No.
Respondent Counsel: And there is nothing wrong with you physically, is there? There’s nothing that stops you from standing or sitting or walking, those sorts of things?
Ms Aloi: Well, like I said, my social withdrawal has decreased, my energy levels, my motivation has decreased, so yes that’s all part, so yes I don't want to go for walks I don’t want to interact with people, I basically just stay home 24/7. I don’t have the motivation.
Respondent Counsel: You are able to stand without assistance, is that the case?
Ms Aloi: Of course I can stand without assistance but that – I don't see where that’s going with motivation.
Respondent Counsel: But I’m not asking you about motivation, I’m asking whether there’s any physical impediment to you performing these sorts of tasks. You’re able to sit without assistance?
Ms Aloi: Yes
Respondent Counsel: You're able to walk without assistance?
Ms Aloi: Yes
Respondent Counsel: You can squat and kneel without assistance?
Ms Aloi: Yes
Respondent Counsel: You can reach, bend, twist and carry items without assistance?
Ms Aloi: Well I haven't twisted or anything like that. Again, you know, that's all part of my decreasing energy levels and motivation.
Respondent Counsel: Is there any physical impediment to you twisting?
Ms Aloi: No
Respondent Counsel: Is there any physical reason you can't pull or push?
Ms Aloi: Well, I mean I don't know where that’s going with that, pulling or pushing, what am I pulling or pushing? Again, it all boils down to my motivation. Yes, like I can’t, I can't cook, that’s all part of my motivation skills.
Respondent Counsel: Are you physically able to pull the rubbish bins out?
Ms Aloi: No, my son does all that.
Respondent Counsel: I didn’t ask who does it, I asked if you were physically capable of doing it?
Ms Aloi: Well, that’s something I haven’t done for a long time.
In reaching this determination, the Tribunal also relied upon Associate Professor Khalid’s evidence at the hearing:
Respondent Counsel: In your report you’ve expressed the opinion that Ms Aloi suffers from 10% Whole Person Impairment, could you explain to the Member the factors that you considered in making that assessment?
Associate Professor Khalid: I took into account Ms Aloi’s diagnosis, her symptomatology, her mental examination when I reviewed her last year and the Guide’s description for impairment assessment. I gave a rating of 10% impairment assessment because anything more than 10% requires supervision and direction in activities of daily living…
Respondent Counsel: So you’ve touched on the need for supervision in activities of daily living which is a requirement for anything more than a 10% whole person impairment, did you obtain any history from Ms Aloi of her requiring supervision in any of the activities of daily living?
Associate Professor Khalid: Yes, those activities Ms Aloi informed me that her son lives with her and he works full time so she does basic household chores and cooking because she has to cook for her son. She is able to drive, limited driving. She does not require any assistance with self-care or bathing or dressing. She does not require any assistance with feeding, standing, moving and she can control her bladder. These are all six specific functions described in the Guide under activities of daily living.
Respondent Counsel: Sorry, I’m not sure if I misheard your answer to the question, I’ll just clarify, did Ms Aloi give you a history of needing supervision in any of those activities of daily living?
Associate Professor Khalid: No.
Respondent Counsel: Are you of the opinion that she requires supervision in any of those activities of daily living based on your examination of her and also your review of all the documentation you’ve seen?
Associate Professor Khalid: No
Respondent Counsel: The second aspect for an impairment rating greater than 10% is a need for direction and you’ve touched on that also. Did you obtain any history of Ms Aloi of her requiring direction by a suitably qualified person in any of the activities of daily living set out in Table 5A?
Associate Professor Khalid: She didn’t give me any history of requiring supervision or direction.
Respondent Counsel: And based on your examination of her and the review of the documentation, did you form the opinion that she required direction by a suitably qualified person in any of those ADL?
Associate Professor Khalid: No.
…
Member: Ms Aloi has told us that since she saw you last, her situation has deteriorated greatly. She’s now socially isolated, she’s rarely leaving the house, she’s rarely driving only short distances, she’s relying upon her son more and more, she’s not cooking or cleaning or doing any domestic chores and she’s not engaging with any family. If she had given you that history in your last visit, would that have changed your opinion given today?
Associate Professor Khalid: No the opinion for the impairment assessment can’t change because then again there is no need for supervision or direction for activities of daily living. Now that factor which I would have assessed if I had the opportunity to see what are those factors that have led to this deterioration. I just want to start off by definition of [indistinct] condition, they usually resolve when the stressor is removed, usually within six months, in our case it has become chronic. There is no added work-related stressor that can explain this recent exacerbation of her symptoms, so I note there have been mention about family dynamics and difficulties or whatever, so if they are there but as I said without benefit of reassessing, I’m not able to comment but impairment assessment can’t go above that unless she requires supervision and direction in activities of daily living, as described in the Guides.
The Tribunal finds that Ms Aloi’s accepted condition has resulted in a permanent impairment of 10%, preferring the assessment of Associate Professor Khalid in his report of 8 June 2021 which had regard to Table 5.1 of Guide and the explanatory note. The Tribunal finds that there was no evidence Ms Aloi required supervision or direction with her ADL as defined in the explanatory note to the Guide.
Non-economic loss
The Tribunal notes that the only area of dispute between the parties in relation to the assessment of Ms Aloi’s entitlement to compensation pursuant to s 27 of the SRC Act is the rating awarded in respect of “suffering”. Dr Assad assessed Ms Aloi as a 4 for suffering, whereas Associate Professor Khalid assessed Ms Aloi as a 3 for suffering.
As the parties were largely in agreement on the non-economic loss assessment, the Tribunal considered only the disputed area of “suffering”. The Tribunal finds that Ms Aloi best fit a score of 3 for suffering as her evidence indicated her episodes of mental distress occur regularly and her ability to cope and perform activities of daily living have been reduced, but she still has some capacity during the hours her son is at work.
In reaching this determination, the Tribunal relied upon Associate Professor Khalid evidence at the hearing:
Respondent Counsel: Now, Associate Professor Khalid, you assessed Ms Aloi as suffering a non-economic loss score of 3 for the suffering criteria?
Associate Professor Khalid: Yes.
Respondent Counsel: Could you explain to the Member your rationale for settling upon a score of 3 as opposed to any other score?
Associate Professor Khalid: The reason I gave a rating of 3 is that Ms Aloi experienced her symptoms of anxiety and depression with episodes which do occur regularly. Her ability to cope, perform activities are reduced during those episodes. She needs time to recover between episodes. She would benefit from treatment and she was receiving psychological treatment and at that time she was not taking any anti-depressant medication and she had not seen any psychiatrist.
Respondent Counsel: Did you have regard to the criteria that attracts a score of 4?
Associate Professor Khalid: Yes there are periods in which Ms Aloi is free of those symptoms especially when she goes out she is able to drive. She wasn’t receiving any treatment with anti-depressant medication which was necessary to control her symptoms so that practically rules out if there’s no requirement for treatment then the criteria for 4 is not fulfilled.
The Tribunal finds that Ms Aloi’s accepted condition has resulted in a score of 3 for suffering for non-economic loss, preferring the assessment of Associate Professor Khalid in his report of 8 June 2021.
Conclusion
The Tribunal, having considered all the evidence before it, determines that Ms Aloi’s accepted condition has been of significant duration, that she has undertaken all reasonable rehabilitative treatment and that there is little likelihood of any improvement. The Tribunal finds Ms Aloi’s accepted condition has resulted in a permanent impairment of 10% and a score of 3 for suffering for non-economic loss.
decision
Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member
.....................[sgd]....................................
Associate
Dated: 12 January 2023
Date of hearing: 5 and 6 October 2022 Applicant: Self-Represented Counsel for the Respondent: Ms Kim Bradey Solicitors for the Respondent: Ms Mary Karekos
Senior Legal Counsel
Commonwealth Bank of Australia
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