Ascic and Comcare (Compensation)

Ascic and Comcare (Compensation) [2019] AATA 2476 (9 August 2019)
Division:GENERAL DIVISION
File Number: 2017/2886
Re:Marko Ascic
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:9 August 2019
Place:Perth

The Reviewable Decision of 16 March 2017 is affirmed.
..................................[sgd]......................................
CATCHWORDS
COMPENSATION – Workers’ Compensation – Commonwealth employee – whether Comcare liable to pay compensation – psychological injury – depression – acute paranoid reaction to perceived stress in employment – permanent impairment – whether impairment became permanent prior to 1 December 1988 – Compensation (Commonwealth Government Employees) Act 1971 did not provide for the payment of lump sum compensation for psychological conditions – whether there has been a new impairment suffered on or after 1 December 1988 – decision under review affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth) – ss 5(1), 26, 27(1), 27(4), 39(1), 39(4), 39(14), 40, 41, 42
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(1), 14, 14(1), 24, 24(1), 24(2), 24(7), 25, 25(1), 124, 124(3), 124(4), 128
Social Security and Repatriation Legislation Amendment Act 1985 (Cth) – s 35
CASES
Comcare v Maida (2002) 36 AAR 69; [2002] FCA 1284
Department of Defence v West (1998) 85 FCR 491
Lees v Comcare (1999) 56 ALD 84
REASONS FOR DECISION
Senior Member Dr M Evans
9 August 2019

THE APPLICATION

On 18 May 2017 the Applicant lodged an application with the Tribunal (T2) to review a decision of a delegate of the Respondent dated 16 March 2017 (T22). This will be referred to as the Reviewable Decision.
The Reviewable Decision affirmed a determination of the Respondent dated
2 February 2017 (T17), which declined the Applicant’s claim for a lump sum compensation payment for permanent impairment for the accepted condition of “depression and acute paranoid reaction to perceived stress in employment” under s 124 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
The Applicant’s claim was declined on both 2 February 2017 and 16 March 2017 because the delegate of the Respondent found that the Applicant’s condition became permanent prior to 1 December 1988; that is, prior to the commencement of the SRC Act. The previously relevant Act, being the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) did not provide for a lump sum payment of compensation for psychological conditions.
ISSUES
The Tribunal generally agrees with the formulation of the issues in the Respondent’s Statement of Facts, Issues and Contentions (SFIC). The issues that require determination by the Tribunal are:
(a)Whether the Applicant has suffered an impairment, which is permanent, as a result of the accepted conditions; and, if so,
(b)
Whether the Applicant’s impairment and its permanency occurred before

1 December 1988 (the commencing date of the SRC Act) such that the provisions of the 1971 Act are applicable; or
(c)If the impairment occurred before 1 December 1988, whether there has been a qualitative and quantitative change in the impairment post 1 December 1988, giving rise to a new impairment and if so,
(d)Whether there is an entitlement to permanent impairment compensation by virtue of ss 24, 25 and 124 of the SRC Act.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 28 March 2019.
The Applicant appeared by telephone link and was self-represented.
Ms Slack appeared as counsel for the Respondent, assisted by her instructing solicitor

Mr Burgess, both of whom appeared in person.
The Applicant gave oral evidence, and was cross-examined. Both the Applicant and

Ms Slack made oral submissions.
The Tribunal admitted the following documents into evidence at the hearing:
(a)a document titled, “Applicant’s response to the Respondent’s SOFIC and Applicant’s Draft Statement of Facts, Issues and Contentions – Subject to Amendment”, dated 23 July 2018 (Exhibit A1);
(b)unsigned and undated submissions from the Applicant, attached to an email dated 14 December 2017 (Exhibit A2);
(c)
submissions of the Applicant, contained in, and also attached to, an email dated

1 December 2017 (Exhibit A3);
(d)a document titled, “Applicant’s response to Respondent’s SOFIC and Applicant’s Draft Statement of Issues, Facts and Contentions – Subject to Amendment”, undated but attached to an email dated 28 March 19 (Exhibit A4);
(e)Comcare Claim Invoice Line Item List, dated 20 August 2018 (Exhibit A5);
(f)Respondent’s s 37 documents (T Documents) numbered T1 to T26 and comprising 86 pages (Exhibit R1);
(g)Respondent’s SFIC, dated 29 January 2018 (Exhibit R2); and
(h)List of pharmaceutical items titled “2254/1 – Pharmacy items paid Medical Costs; post 1/12/1988” (Exhibit R3).
At the conclusion of the hearing, the Applicant’s telephone line was cut off. However this was not immediately apparent to the Tribunal. Consequently, the parties were recalled that afternoon to ensure that the Applicant was afforded the opportunity to make all of the submissions that he wished to make. The Tribunal is satisfied that the parties were afforded an adequate opportunity to be heard and to make submissions.
APPLICABLE LEGISLATION
A significant point of contention between the parties was the application and interpretation of the relevant legislation. The Applicant had a different interpretation of provisions of the 1971 Act and the SRC Act than the Respondent, as is set out in the following submission made by the Applicant at the hearing (transcript, pages 45-46):
MR ASCIC:… To start off with, Comcare have admitted that I did suffer a permanent impairment.
[SENIOR] MEMBER: Yes.
MR ASCIC:… I mean they are not denying that. They claimed that my impairment took place prior to 1 December 1988. But what they totally ignore is the other provisions that deal with this issue. (1) I never submitted a claim under the 1971 Act.

(2) A claim for that was not ever processed or received.

(3) They are wrong when they say that the ’71 Act did not have provisions for permanent impairment. They are correct in that, because the concept of permanent impairment did not exist under the 1971 Act, but it did exist in section 27(1) and (4) as an entitlement to compensation for personal injury, which is also defined by the - what do they call it, the explanatory memorandum for the Act, that this relates to a progressive disease or injury that sort of develops as a result of an injury that is a compensable injury, and the basis of which the person was retired.
So when they say there is no entitlement to permanent impairment, it is totally and absolutely wrong. There was an entitled [sic] for a lump sum compensation payment for personal injury which is recognised under the ’88 Act to be permanent impairment compensation. Just because it is not written as “permanent impairment” does not mean that that entitlement does not exist. Now, the other thing is, both of the Acts provide for that compensation. That compensation entitlement is legislated. It says that the person is entitled to it. There is no debate permissible on whether the person is entitled to it or not. If that person was retired, as a result of a compensable injury, that is - and therefore he becomes entitled to that.
So under both of the Acts, the 1988 Act and the 1971 Act, so what - to argue that there is no entitlement to it is absolutely wrong. Because - and they are basing that argument on saying, “This doesn’t exist in the 1971 Act.” No, the expression does not exist, but the concept and the entitlement existed, and it is recognised under various provisions of the ’88 Act which the respondent conveniently does not refer to it. They cherry pick a little bit of a part here, a little bit of a part there, make up a story to suit, but totally ignore the relevant legislation.
One of the critical ones is section 128 which says that it doesn’t matter when the accident or the - let’s say this - the - what do you call it, the liability was incurred, if it was not discharged under the old Act, it has to be discharged under the new Act. There is no qualification in there about being able to be reconsidered under the dead 1971 Act. That is totally illegal, it cannot be supported by legislation. The 1971 Act ceased operation on 30 November. It set certain conditions, but nobody can then re-enliven the jurisdiction of that legislation to process a claim for either entitlement or no entitlement.
And additionally, that entitlement is legislated. There is [sic] no conditions set on that entitlement. In fact, various other sections, which I will go into, say that once Comcare admit or accept that there is a permanent impairment, they then have to put these things in motion to determine the degree of impairment and make the payment, or an interim payment until such a decision is finalised. There is no provision for them to debate whether there is entitlement or not to that compensation, because it is legislated. It is there and it’s explained in the explanatory memorandum, in both of the Acts, very, very clearly.
So the false inference that they have created to suit their argument is that, well, it has got to be determined under the ’71 Act, but because we can’t determine it, there is no entitlement. That is absolutely false.
[SENIOR] MEMBER: So, Mr Ascic, just to clarify. So your argument is that Comcare were liable under the 1971 Act, and then by virtue of section 128 of the new Act - - -
MR ASCIC: The provisions (indistinct).
[SENIOR] MEMBER: Yes, they’re still liable under the new Act, is that what you're saying?
MR ASCIC: Yes. Well, not only section 128, but all of the other various sections that deal with the transitional provisions of liability transfer from the old Act to the new Act, and many of them specific to permanent impairment. And in fact the permanent - - -
[SENIOR] MEMBER: You are also referring to section 27.
MR ASCIC: Well, I will get into that later on in my submissions. I listed all of the legislation and provided an explanation of the effect of each of those pieces of legislation that the respondent refuses to acknowledge or avoids at all costs.
To resolve the contentions between the parties as to the interpretation of these statutory provisions, the Tribunal will now set out and explain the applicable provisions of the SRC Act and the 1971 Act, as well as other provisions of the 1971 Act that the Applicant sought to rely on, being s 26, 27, 39(4) of the 1971 Act.
According to the legislative history of the SRC Act, s 4(1) commenced on 1 July 1988, and ss 24, 25 and 124 commenced on 1 December 1988.
Section 4(1) of the SRC Act defines “permanent” as “likely to continue indefinitely” and “impairment” as “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”.
Section 24 of the SRC Act provides, in part, that:
(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.
…
Section 24(1) of the SRC Act is somewhat self-explanatory, but in summary provides that Comcare will pay compensation to an employee who has suffered an injury (being a defined term under s 5A and s 5B of the SRC Act) that results in permanent impairment. Section 24(2) is a non-exhaustive list of the matters that Comcare shall have regard to in deciding whether an impairment is permanent.
Generally speaking, s 25(1) of the SRC Act provides that once Comcare makes a determination that an employee is suffering from a permanent impairment, they will make an interim determination about the degree of impairment and the amount of compensation payable. This section relevantly states that:
(1)Where Comcare:
(a)makes a determination that an employee is suffering from a permanent impairment as a result of an injury; and
(b)is satisfied that the degree of the impairment is equal to or more than 10% but has not made a final determination of the degree of impairment;
Comcare shall, on the written request of the employee made at any time before the final determination is made, make an interim determination of the degree of permanent impairment under section 24 and assess an amount of compensation payable to the employee.
However, s 124(3) of the SRC Act provides that:
(3)A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment…being an impairment…that occurred before the commencing date, if:
…
(c)the person was not entitled to receive compensation of a lump sum in respect of that impairment..:
…
(iii) in any other case—under the 1971 Act as in force when the impairment… occurred.
In summary, s 124(3) effectively provides that if a person’s impairment became permanent before the commencement date of the SRC Act (1 December 1988), the person is not entitled to receive lump sum compensation for that impairment if they were not entitled to receive it under the 1971 Act.
This raises the question of whether permanent impairment compensation claimed by the Applicant for his accepted condition of “depression and acute paranoid reaction to perceived stress in employment” was available under the 1971 Act. Relevantly, s 39(1) of the 1971 Act provided that:
(1) Subject to this section, where an injury to an employee results in a loss specified in subsection (2), the compensation payable in respect of that injury is $28,000 or such higher amount as is prescribed, and that compensation is payable to the employee.
There is a table in s 39(4) of the 1971 Act that sets out an exhaustive list of percentages of compensation payable for the loss of various parts and functions of the body. A “loss” is defined in s 39(15) to include a “permanent loss”. However, losses arising from psychological injuries, including the injury that was accepted for the Applicant, is not included in this list.
Other impairments for which compensation is payable under the 1971 Act are listed in
s 40 (compensation payable in respect of loss of capacity to engage in sexual intercourse); s 41 (compensation payable in respect of facial disfigurement); and s 42 (compensation payable in respect of total loss of the sense of taste or smell). It is clear that these provisions are not applicable to the current application.
In summary, the 1971 Act does not contain any provisions which provide for a lump sum payment of compensation for psychological conditions. This was noted by Mansfield J in Comcare v Maida (2002) 36 AAR 69 (Maida) (at 71, [5]), where His Honour stated:
The 1971 Act provided for the payment of workers’ compensation in respect of injury suffered by a Commonwealth employee during the period it was in force: see generally ss 5, 27 and 29 of the 1971 Act. Section 39 of the 1971 Act provided for lump sum payment of compensation in respect of the loss of particular functions or limbs or part of functions or limbs. The amount of eligible benefits for impairments are those specified in the lump sum compensation table in s 39(4) of the 1971 Act. They did not include psychological impairment such as schizophrenia. It is common ground that, under the 1971 Act, there was no entitlement by way of a lump sum payment for a psychological impairment such as schizophrenia.
Another provision of the 1971 Act which the Applicant relied upon was s 26, which provided:
For the purposes of this Part, an employee shall be deemed to be totally incapacitated for work if his incapacity is such that he is fitted only for employment of the kind that is not commonly available and employment of that kind is not reasonably available to him.
Section 26 is not relevant to the Applicant’s current application on the basis that it deems an employee to be totally incapacitated if employment for which he or she is fitted is not available. Further to the irrelevancy of s 26, this section was substituted in 1985 with the following provision, by operation of s 35 of the Social Security and Repatriation Legislation Amendment Act 1985 (Cth). This substituted version of s 26 is also not relevant to the Applicant’s current application. It provides that:
Partially incapacitated employees unable to obtain suitable employment
26 (1) Where –
(a)an employee who is partially incapacitated for work as a result of an injury has taken all reasonable steps to obtain, but has failed to obtain, suitable employment; and
(b)the employee is receiving vocational training in pursuance of section 38,
section 38 applies to the employee as if the employee were totally incapacitated for work.
…
(Original emphasis.)
The Applicant also sought to rely on s 27(1) and (4) of the 1971 Act in support of his argument that he was entitled to lump sum compensation. These sections provide:
(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
…
(4) An amount of compensation payable under a provision of this Act in respect of an injury is, unless the contrary intention appears, in addition to any amounts of compensation paid or payable under any other provision of this Act in respect of that injury.
However, neither ss 27(1) or (4) assist the Applicant with respect to his claim for lump sum compensation. Section 27(1) of the 1971 Act is equivalent to s 14 of the SRC Act, which provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In Lees v Comcare (1999) 56 ALD 84 (Lees) at 91-92, the Full Federal Court explained the operation of s 14 of the SRC Act.
[27] As Finn J noted, s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability “[s]ubject to” Pt II of the Act. That is, it is a liability limited in its extent by other provisions of Pt II of the Act: see, for example, s 17(2). Secondly, the liability is a liability to pay compensation “in accordance with” the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act: see, for example, ss 17(3), (4), (5), 19, 20, 24 and 25.
…
[34] …A determination under s 14 cannot amount to more than a determination that Comcare “is liable to pay compensation in accordance with this Act” in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
The judicial commentary from Lees is helpful in explaining how ss 27(1) and (4) of the 1971 Act operate. Similarly to s 14(1) of the SRC Act, s 29(1) of the 1971 Act is a ‘gateway provision’ under which liability to pay compensation is initially accepted or declined. Once liability is accepted, the payment of compensation is subject to, and is made in accordance with, other relevant provisions in the Act. So although the definition of an “injury” in section 5(1) of the 1971 Act means “any physical or mental injury…”, it is subject to other specific provisions in the 1971 Act that deal with lump sum payments, namely ss 39, 40, 41 and 42. Relevantly, none of these provisions provide for lump sum payments with respect to psychological conditions.

It also follows that another provision which the Applicant sought to rely upon, being
s 27(4) of the 1971 Act, also does not apply to the Applicant’s current application.
Section 27(4) provides:
(4)An amount of compensation payable under a provision of this Act in respect of an injury is, unless the contrary intention appears, in addition to any amounts of compensation paid or payable under any other provision of this Act in respect of that injury.
(Emphasis added.)
Section 27(4) is not applicable because the provision refers only to circumstances where “an amount of compensation [must be] payable under a provision of this Act”, and, as has been explained above, the 1971 Act does not contain any provisions which provide for a lump sum payment of compensation for psychological conditions.
The Applicant also sought to rely on s 39(14) of the 1971 Act which provides:
(14) An amount of compensation referred to in this section is not payable in respect of an injury so long as the employee is, or is likely to become, totally incapacitated for work where the incapacity for work results, or, if it occurs, will result, in whole or in part from that injury.
Section 39(4) is also unhelpful to the Applicant’s current application, as the provision states that lump sum compensation is not payable in circumstances including where a person is totally incapacitated for work.
Section 124(4) of the SRC Act provides that:
(4)The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment… being an impairment… that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
…
(c)in any other case—the 1971 Act as in force when the impairment … occurred.
The effect of s 124(4) of the SRC Act is that, if a person suffered a permanent impairment before the commencement day of the SRC Act, the amount of compensation that the person is entitled to will be in the same amount as they would be entitled to under the 1971 Act. That means that where a person (in this case, the Applicant) was not entitled to any compensation under the 1971 Act, they will not be entitled to compensation under the SRC Act.
The Applicant also sought to rely upon s 128 of the SRC Act, which provides:
Any liability of the Commonwealth, or of a Commonwealth authority, to pay compensation or make any other payment to a person under any provision of the 1912 Act, the 1930 Act or the 1971 Act shall, to the extent that it had not been discharged before the commencing day, be taken to have been incurred by the relevant authority on that day under the corresponding provision of this Act.
Section 128 is not applicable to the Applicant’s situation because it is simply a provision that transfers liability to pay compensation from the Commonwealth or another Commonwealth authority to Comcare after the commencement of the SRC Act if liability has not been discharged.
HAS THE APPLICANT SUFFERED A PERMANENT IMPAIRMENT AS A RESULT OF THE ACCEPTED CONDITIONS?
The Respondent conceded that the Applicant suffers from an impairment as a result of the accepted conditions of depression and acute paranoid reaction to perceived stress in employment (Exhibit R2, paragraph [4.1]).
This was on the basis that the Applicant’s impairment is well documented in the Applicant’s medical records, and specifically in the reports of Professor German (psychiatrist), Dr C K Yeap (general practitioner) and Dr Arokiasamy (the Applicant’s treating general practitioner). At the Tribunal hearing, Ms Slack referred the Tribunal to relevant parts of these reports.
In his report of 17 May 1988, Professor German stated (T8, pages 19-20):
As a result of these consultations and my examination of him I came to the conclusion that he suffers from:
1A paranoid personality disorder which he has always had, and which is characterised by suspicious and sensitive feelings in relationship to his perception of the society he lives in, and people’s acceptance of him or otherwise.
2Occasional intensifications of paranoid personality traits, to the extent of an acute paranoid reaction, brought about by perceived stress in his employment. As I have noted in my report of 26.2.88, he is an obsessional and perfectionistic man, who, given his paranoid personality, takes badly to the requirements of a tightly regulated and disciplined work environment, particularly when he feels he is not appreciated or being given care and attention. A layman might say he develops tantrums when thwarted, but unfortunately from a psychiatric point of view these tantrums are of a paranoid nature, backed up by intense anger, and characterised by behaviours and threats which in my view make him unsuitable to continue in the police force.
3Also present during these paranoid reactions are symptoms of depression, although these are less intense and of less significance in terms of his capacity for continued employment. Thus, in my opinion, his disorder, particularly the paranoid elements of his disorder, arise from an interaction between his personality and the nature of his job, and are likely to continue to so arise in his work environment.
…
I believe the prognosis to be poor.
In a letter to Comcare dated 21 August 2011, Dr Yeap stated that (T12, page 31):
He has depression and “acute paranoid reaction to perceived stress in employment” since 1987.
I do not anticipate any change to his condition.
…
He still has the same underlying mental condition that precipitated his current condition in the first place.
At the hearing, Ms Slack also referred to the section of the Applicant’s Comcare claim form completed by Dr Arokiasamy on 12 December 2016, where the doctor states his diagnosis of the Applicant’s condition as “Depression and Acute Paranoid Reaction”, and refers to the impairment having “stabilised”. Dr Arokiasamy also answered “yes” to the question “Has active treatment of the condition been completed?” (T14, page 40).
When the Applicant was diagnosed by Professor German in 1988, his prognosis was “poor”, and there is no compelling evidence before the Tribunal to suggest that the Applicant’s condition improved; indeed he was still suffering from the condition in 2011 and also in 2016, as stated by Dr Yeap and by Dr Arokiasamy respectively, which indicates that the condition did not improve. Progress Medical Certificates also show that the Applicant was totally unfit for work between 31 March 2009 to 12 March 2016 (T26, page 83) which also tends to show that the Applicant continued to suffer from the condition. Thus, applying this medical evidence to the factors in s 24(2)(a) and (b) of the SRC Act, the Tribunal finds that the Applicant has been suffering from the impairment for approximately 30 years.
The Tribunal has limited information before it as to whether the Applicant has undertaken all reasonable rehabilitative treatment for the impairment (s 24(2)(b) of the SRC Act), although as stated above, Dr Arokiasamy answered “yes” in response to a question about whether active treatment of the condition had been completed. The Applicant gave evidence at the hearing that he was taking medication for a period until 1993, when he reduced the amount of medication he was taking, and that he subsequently stopped taking medication entirely in 2001. This tends to suggest that he was under medical supervision during this time, given that such medications are prescription only.
On balance, the Applicant’s medical records show that as a result of his accepted conditions the Applicant’s daily ability to function is impaired, including his ability to socialise, interact with others, and to work; that the consensus of medical opinion is that his “prognosis is poor” (T8); that there is unlikely to be any change in his condition (T12); and that since 1988 the Applicant has continuously been certified as being unfit for work (see T26, pages 78-86).
The Tribunal therefore finds that, on the balance of probabilities, the Applicant has a permanent impairment within the meaning of s 4 of the SRC Act.
WHEN DID THE APPLICANT’S IMPAIRMENT BECOME PERMANENT?
The main contention between the parties is when the Applicant’s impairment became permanent. The Respondent submitted that it was prior to 1 December 1988, and that as a result, he is not entitled to compensation under ss 24 or 25 of the SRC Act (Exhibit R2, paragraph [4.2]).
The Applicant commenced employment with the Commonwealth Police, now known as the Australian Federal Police (AFP) on 25 December 1973 (T4, page 11).
He went on extended leave from 11 December 1987 (T9, page 22) due to his psychological impairment, and did not return to work.
The Applicant made a claim for compensation on 26 April 1988, and in his claim form he described the “type of injury or illness” as “depressive reaction with anxiety and some paranoia??? (emotional instability)” (T11, page 25).
In his compensation claim form of 26 April 1988, the Applicant noted that
4 December 1987 was the date that he first had treatment, and 3 December 1987 was the date that he first had time off work (T11, page 24).
In response to the question, “where did your injury or illness happen?” the Applicant stated that his impairment “Started on or after 25.12.73 when I made the horrid mistake of joining the Commonwealth Police” (T11, page 25).
In the section, “List any absences from work because of your injury or illness”, the Applicant specified the period from 11 December 1987 to “not known” (T11, page 26).
A report from the Commonwealth medical officer dated 9 May 1988 (T5, pages 15-16) found that the Applicant was unfit for continued employment and should be retired on the grounds of invalidity. The medical officer did however tick a box which indicated that the Applicant may in due course partially or completely recover, and that the Applicant “should be review(ed) in perhaps 2 yrs time”. The report stated that the Applicant’s prognosis was “poor (for duties in present organisation.)” Under the “history of the condition”, the medical officer noted that:
Reports from Professor German (psychiatrist), Dr Dwyer (MO. AFP) and Prof Burvill (Commonwealth Referee Psychiatrist) all indicate paranoid personality with obsession rigid outlook. In spite of medication remains fairly aggressive with marked paranoid ideation. All treating and referee doctors indicate he is unfit for further police work & redeployment would appear difficult (indeed possibly dangerous in Professor Burvill’s opinion).
A report dated 17 May 1988 from Professor German, diagnosing the Applicant with
“a paranoid personality disorder”, and “occasional intensifications of paranoid personality traits to the extent of an acute paranoid reaction, brought on by perceived stress in his employment… ” (see paragraph [32] above).
In a letter to the Australian Federal Police dated 25 May 1988, a delegate of the Commissioner for Employees’ Compensation advised that the Applicant’s “compensation claim has been decided in his favour for depression and acute paranoid reaction to perceived stress in employment”, with the period of incapacity being specified as “11/12/87 to 9/06/88” (T9, page 22). The delegate stated that a report from the psychiatrist, Professor German, was the basis of the decision and that (T9, page 22):
In view of Prof German’s opinion I will be reviewing the question of continuing liability in December as by then the employee will have been removed from his work for one year.
A letter from the Commissioner of Police dated 12 August 1988 confirmed that the Applicant was being retired from 1 September 1988 “for the reason that the member is, in consequence of mental incapacity. [sic] incapable of performing his duties” (T10, page 23).
Since 1 September 1988, the Applicant has been in receipt of a pension from ComSuper (T13, page 35).
In a medical certificate for Workers’ Compensation dated 31 March 2009 Dr Yeap, the Applicant’s treating practitioner, certified that the Applicant was unfit for work in relation to a permanent injury which was stated to have occurred on 11 December 1987 (T26, page 83).
In a Comcare Medical Review Certificate dated 7 April 2010, Dr Yeap certified that the Applicant was totally unfit for work for a further 12 month period, and again cited the injury as being sustained on or around 11 December 1987 (T26, page 84). Dr Yeap stated his diagnosis of the Applicant to be “depression and acute paranoid reaction to perceived stress in [the Applicant’s] employment” which in his opinion was a probable consequence of “stress in workplace” (T26, page 84).
In Dr Yeap’s letter dated 21 August 2011 (T12, page 31), he stated that the Applicant
“… has depression and ‘acute paranoid reaction to perceived stress in employment’ since 1987” (emphasis added). Dr Yeap further stated that:
His current condition is related to his former employment in the Commonwealth Police.
His initial condition has not been superseded by a different condition.
He still has the same underlying mental condition that precipitated his current condition in the first place.
…
He is still not on any medication.
Medications have not helped in the past and I do not think it will make a difference.
In a Comcare claim form dated 12 December 2016 the Applicant made a claim for permanent impairment compensation in relation to his accepted condition of “depression and acute paranoid reaction to perceived stress in employment”, and stated that the date of injury was 11 December 1987 (T14, page 39).
Further in this form, the Applicant stated that the permanent injury/impairment he wanted to claim for as (T14, page 39):
Inability to sleep, regular bouts of stress/anxiety, unwelcome memory flashbacks, frequent inability to maintain concentration, often incapable of attending to daily chores/needs, unable to tolerate social contacts/prefer isolation or family contact only, desires for revenge towards AFP and often desires for self harm. Following 14 years of mental abuse by AFP, I am still fucked in the head and neither I nor anyone else has been able to help.
The Applicant disagreed that his impairment became permanent prior to
1 December 1988. He submitted that there is a lack of evidence, including not being supported by medical opinion, to indicate that his incapacity became permanent prior to 1 December 1988 (Exhibit A1, paragraph [16]; Exhibit A2, paragraph [1], page 1; Exhibit A3, page 4). At the hearing the Applicant submitted that his impairment became permanent in 1996 when he stopped taking medication. He stated (transcript, page 58):
Now, my idea - and my memory - and I lived through it - when my condition became permanent it wasn’t until after 1996 because until then I know that I suffered many of the things that I thought were a consequence of either my injury or my medication but I did not have any idea of the concept of permanent impairment that was entitlement to compensation for that, that was anything. I just knew that I had changed - my condition, and eventually when I got rid of all the medications I know that I stabilised to a certain level of being able to live without the medications and that is the time that I would say my condition became permanent because it did not vary much since that time. You know, I still have the same issues that arise - come and go - but most of them are with me all of the time.
As indicated in the Respondent’s SFIC, the Applicant appears to be referring to the periodic medical reviews that he was required to undertake until 1996 (see for example, T26, pages 83-86). The Tribunal agrees with the Respondent’s submission that it does not follow that the Applicant’s impairment was not permanent before that time, and that it is common for compensation recipients to be subject to periodic reviews for the purpose of determining if they are still incapacitated for work (Exhibit R2, paragraph [4.7]).
There is insufficient evidence before the Tribunal to conclude the date by which the Applicant’s impairment became permanent. Indeed, the Tribunal’s task in this regard would have been assisted by the Respondent submitting further evidence, for example, a medico-legal report which provides an expert medical opinion as to the date that the Applicant’s impairment became permanent. In the absence of such evidence, the facts and medical documentation outlined above tend to indicate that the Applicant’s impairment became permanent prior to 1 December 1988. The date of injury, the date the Applicant went on leave, the date of the Applicant’s compensation claim, the date of his retirement, and the dates of diagnosis and injury referred to in the medical reports by Professor German and Dr Yeap all tend to suggest that the Applicant’s impairment became permanent prior to 1 December 1988.
Consequently, the Tribunal finds on the balance of probabilities that the Applicant’s impairment became permanent prior to 1 December 1988.
HAS THERE BEEN A NEW IMPAIRMENT SUFFERED ON OR AFTER 1 DECEMBER 1988?
If the Applicant establishes that he has suffered a new impairment on or after
1 December 1988, he may be entitled to compensation under ss 24 and 25 of the SRC Act.
In the Full Federal Court decision of Department of Defence v West (1998) 85 FCR 491, Merkel J explained (at 512):
A loss of the entitlement conferred under ss 24 and 25 by reason of s 124(3) only occurs when the permanent impairment the subject of the claim is the permanent impairment that the employee suffered as at 1 December 1988. On my reasoning, and that of Burchett J in Brennan [Brennan v Comcare (1994) 50 FCR 555; 122 ALR 615], where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it is compensable by a lump sum payment under ss 24 and 25. That conclusion is consistent with the language used and with the statutory policy to be discerned from ss 24, 25 and 124 of providing benefits to workers in respect of a further permanent impairment that occurs after the commencing day irrespective of whether the injury that resulted in the impairment occurred before or after the commencing day. It also avoids capricious and arbitrary outcomes under workers’ compensation legislation, which is of a remedial nature and should be construed liberally: see Brennan at FCR 559 and the cases there referred to.
In Maida, Mansfield J (at 79-80, [28]) summarised the relevant law regarding when there will be a new impairment:
In effect, in this matter, the applicant puts the following propositions which, in my view, correctly summarise the state of the law:
“20.1The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.
20.2 If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.
20.3A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment - that is, the development of a new impairment.”
Justice Mansfield further noted (at 82, [38]) that “A significant deterioration in the degree of permanent impairment from any injury may indicate that a discernible or measurable underlying pathological change has occurred.”
As noted above, the Tribunal has found that, on the balance of probabilities, the Applicant continues to suffer from the same impairment that he suffered from in 1987. The evidence before the Tribunal does not suggest any significant change, deterioration or worsening of his impairment which could be considered to be a qualitative and quantitative change and therefore a new or distinct impairment.
CONCLUSION

In summary, the Tribunal finds, on the balance of probabilities, that:
(a)The Applicant has a permanent impairment within the meaning of s 4 of the SRC Act;
(b)The Applicant’s impairment became permanent prior to 1 December 1988;
(c)The evidence does not support a finding that there has been any qualitative and quantitative change in the impairment post 1 December 1988, which would give rise to a new impairment; and
(d)
No permanent impairment compensation is payable to the Applicant by virtue of

ss 24, 25 or 124 of the SRC Act.
The Tribunal notes that if the Applicant is able to obtain evidence of any qualitative and quantitative change in his impairment which may give rise to a new impairment, it would be open to him to make a new claim under the current SRC Act. He would also require evidence to support a finding that he suffers from a degree of permanent impairment of at least 10% as required by s 24(7) of the SRC Act.
DECISION
For the reasons outlined above, the Reviewable Decision of 16 March 2017 is affirmed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

.....................................[sgd]...................................
Associate
Dated: 9 August 2019

Date of hearing: 28 March 2019

Applicant: Self-represented

Counsel for the Respondent: Ms K Slack

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 2476

9 August 2019

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Jurisdiction

Remedies

Statutory Construction

Date of hearing:	28 March 2019
Applicant:	Self-represented
Counsel for the Respondent:	Ms K Slack
Solicitors for the Respondent:	Sparke Helmore Lawyers