AVM v Victims Compensation Fund Corporation
[2013] NSWADT 257
•14 November 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AVM v Victims Compensation Fund Corporation. [2013] NSWADT 257 Hearing dates: On the papers Decision date: 14 November 2013 Jurisdiction: Victims Support Division Before: P H Molony, Judicial Member Decision: 1. The appeal is dismissed.
2. Cost of the appeal is allowed in the exercise of my discretion in the sum of $500 inclusive of GST.
Catchwords: Victims Rights and Support - psychological disorder - meaning of severe disability - proof of scarring Legislation Cited: Victim Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2012Cases Cited: Buckley v Victims Compensation Fund Corporation (2004) NSW SC 513 Texts Cited: Diagnostic and Statistical Manual of Mental Disorders DSM IV TR. Category: Principal judgment Parties: AVM (Applicant)
Victims Compensation Fund Corporation (Respondent)Representation: Lough & Wells Lawyers (Applicant)
File Number(s): 137103 Publication restriction: S 126 Administrative Decisions Tribunal Act 1997
reasons for decision
Background
AVM claims statutory compensation for injuries which he received as a primary victim of an assault that occurred on 2 October 2010. He claimed to have suffered;
- A chronic psychological disorder that was disabling.
- A deviated nasal septum requiring septoplastomy.
- Scarring to his face, resulting in minor disfigurement.
The Compensation Assessor was not satisfied that AVM was suffering from a Category 2 psychological or psychiatric disorder that is severely disabling. The assessor was satisfied that AVM had sustained a deviated nasal septum as a result of the assault, which merits $2,400 compensation under the schedule of injuries. Photographs of the injury did not establish that facial disfigurement was a compensable injury. Because AVM's total entitlement for compensation for his injuries was below the threshold for compensation, AVM's claim for compensation for compensable injuries was dismissed.
Application of the old Act
On 7 May 2013 the New South Wales Government introduced into Parliament an Act which changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). AVM's solicitors were informed that the appeal would be determined under the new Act.
The Victims Compensation Tribunal was abolished and pursuant to Clause 14 of Schedule 2 of the new Act appeals to it are taken to have been commenced before the Administrative Decisions Tribunal. As a Judicial Member in the Victim Services Division of the ADT I have been directed by the President of the ADT to hear the appeal and, in doing so, may exercise all the functions that the Victims Compensation Tribunal had immediately before the commencement of the new Act.
On 16 August 2013 clause 16 of the Victims Rights and Support Regulation 2012 ("the Regulation") commenced operation. This provided that appeals which were pending as at 3 June 2013 are to be determined under the old Act. AVM's solicitors had previously made submissions on the basis of the appeal proceeding under the old Act. Since Clause 16 of the Regulation commenced AVM has been advised of it by the Registrar and given the opportunity to make final submissions. AVM has not done so.
Grounds of Appeal
The Notice of Appeal sets out the following grounds;
1. The Tribunal erred in not making a finding that the Appellant had suffered from a severe psychological injury: category 2 pursuant to the Victims Compensation Support and Rehabilitation Act 1996.
2. The Tribunal erred in not making a finding that the Appellant had suffered from a Brain Injury in the moderate impairment of Social/intellectual function category.
3. The Tribunal erred in not finding that if the Appellant had not suffered from brain damage in the moderate impairment category he had certainly suffered from a skull subdural hematoma treated conservatively.
4. The Tribunal erred in not making a finding that the Appellant had sustained a deviated nasal septum.
5. The Tribunal erred in not taking into account the Medical evidence served on the Tribunal and the relevant submissions made by way of letters to the Tribunal dated 21 December 2011, 5 December 2011 and 22 February 2012.
6. The decision was against the weight of evidence.
AVM's solicitors provided particulars in support of the appeal. I have considered them and I have taken them into account.
Decision on papers
AVM has not applied for the appeal to proceed by way of hearing and I am satisfied that the matter can be properly determined without a hearing (s.38(2) of the old Act).
Section 38(3) of the old Act provides that the appeal from a determination of a Compensation Assessor is to be determined "on the evidence and material provided to the Assessor". I have read and considered the whole of the evidence before the Assessor. I have taken it all into account even though I may not refer specifically to all the evidence and material in these reasons.
On appeal AVM has not sought to rely on any further evidence.
Section 29(2) of the old Act provides that in order to make an award of compensation the Tribunal must be satisfied that -
... on the balance of probabilities, that the person to whom the application for that compensation relates:
(a) is a primary victim, secondary victim or family victim of an act of violence, and
(b) is eligible to receive the amount of compensation provided by the award.
Act of Violence
AVM has to establish an act of violence to be entitled to compensation. Section 5 of the Act relevantly provides;
(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:
(a) that has apparently occurred in the course of the commission of an offence, and
(b) that has involved violent conduct against one or more persons, and
(c) that has resulted in injury or death to one or more of those persons.
(1A) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment.
The evidence before the Tribunal satisfied me that early in the morning of 2 October 2010, when AVM walking to a nightclub with two friends, three males who were not known to him assaulted him. He went to the ground and was repeatedly kicked to the head and body, suffering injuries as a result. One of his friends was also assaulted. A short while later the Police arrived and AVM was conveyed to hospital. Police subsequently arrested and charged one of the offenders.
I am satisfied that the assault occurred as described above, and that AVM suffered injury as a result. AVM has therefore established an act of violence under s 5(1) of the old Act.
Factors affecting eligibility to receive or amount of victim's compensation
I am satisfied that none of the factors set out in s 24 of the old Act that operate to affect a victims eligibility for compensation under the old Act apply in AVM's case.
Similarly, having regard to all the factors to which the Tribunal must have regard under s 30 of the old Act, I am satisfied that none of them would justify my refusing to make an award of compensation AVM's favour, or in reducing the compensation payable to AVM.
Has AVM sustained any what compensable injury?
Section 14(1) of the old Act provides -
(1) The statutory compensation for which a primary victim of an act of violence is eligible comprises:
(a) compensation for compensable injuries received by the victim as a direct result of the act of violence, and
(b) compensation for financial loss incurred by the victim as a direct result of any such compensable injury.
Schedule 1 to the old Act specifies compensable injuries under the Act and the "single standard amount" or range of compensation payable as a result of an act of violence: see s 10. As authorised by s 13 the schedule also contains provisions prescribing, among other things -
- How compensation is to be calculated where a victim has received more than one compensable injury, namely the full standard amount for the most serious injury, 10% of the next most serious standard amount, 5% for the third most serious injury, and nothing for further injuries (see clause 3).
- That where an act of violence results in a compensable injury "because of the aggravation, acceleration, exacerbation or deterioration of an existing condition" for the standard amount to be reduced to allow for the proportionate amount attributable to the pre-existing condition (clause 4).
Schedule 1 contains special provisions relating specified types of compensable injury. These include psychological or psychiatric disorder, sexual assault, burns and scarring and domestic violence. With respect to psychological or psychiatric disorders clause 5 provides -
(1) For the purposes of establishing whether there is a compensable injury of psychological or psychiatric disorder, an application relating to statutory compensation for such an injury must be accompanied by a written assessment of the applicant's condition prepared by a qualified person chosen from a list of qualified persons designated by the Director.
(1A) In determining such an application, the Tribunal or compensation assessor concerned is not required to have regard to any report or assessment other than the assessment referred to in subclause (1).
(2) The Director may suspend or revoke the designation of a person under subclause (1).
(3) The compensable injury of psychological or psychiatric disorder (category 1) applies only in relation to an act of violence that has apparently occurred in the course of the commission of any of the following offences:
(a) armed robbery,
(b) abduction,
(c) kidnapping.
With respect to burns and scarring clause 7 provides -
The following applies to the compensable injuries of burns and scarring:
(a) Compensation is not payable for scarring unless it is permanent.
(b) Compensation is not payable for both burns to any part of the body and scarring of that part of the body caused by burns.
(c) Payment for burns or scarring is subject to such reasonable inspection of the injury as the Tribunal or compensation assessor may require.
In the present case AVM specified three compensable injuries in his application for statutory compensation. These were -
- A chronic psychological disorder that was disabling.
- A deviated nasal septum requiring septoplastomy.
- Scarring to his face, resulting in minor disfigurement.
In his particulars of appeal AVM has argued that he sustained the following injuries -
- Severe psychological disorder category 2; i.e. one that is severely disabling.
- A brain injury being either one that has resulted in AVM having sustained a moderate impairment of social/intellectual functioning or a skull subdural haematoma.
- A deviated nasal septum.
No submissions were made to the compensation assessor with respect to a brain injury, and that injury was not referred to by AVM in his application.
Psychological disorder
There is a report from the Authorised Report Writer Mr Geoff Tovey, a clinical and forensic psychologist ("the ARW"). He assessed AVM on 19 February 2012, some 15 months after the assault.
The ARW took a detailed history from AVM including both his physical and psychological symptoms following the assault. He noted that AVM had received counselling support from a clinical psychologist (Steven Dragutinovich) for 12 months, with some benefit. He recorded AVM's current symptoms as follows -
At the time of assessment, [AVM] stated that his primary concerns are related to his ongoing difficulties managing his anger and his alcohol use. He stated that both of these issues are continuing to impact on his relationships. [AVM] stated that he is working on these issues with his counselor. He indicated some continued intrusive experience with occasional nightmares, flashbacks and thoughts. He reported some environmental triggers such as observing males of similar appearance and age as the perpetrators. [AVM] indicated that he continued to experience discomfort in social situations and avoided many social outing opportunities. Some depressive symptomotology was reported such as periods of low mood, poor concentration and motivation. He denied any current suicidal ideation.
Those symptoms were significantly less severe that AVM's had suffered earlier in his recovery, when he was more withdrawn and had reported some suicidal ideation.
With respect to AVM's level of functioning the ARW wrote -
[AVM]'s self-care appeared intact and he reported he is able to complete all necessary daily functions. His independence is retained. He appeared to have good support from his family and girlfriend.
[AVM] appeared to have experienced a level of symptomotology as a result of the assault he experienced, which has had an impact on his functioning in the social and psychological modalities post the assault. Self-report and informant information, indicate that [AVM]'s mental state was at a more positive level prior to the assault. This suggested that his features of Post-Traumatic Stress Disorder with depressive features appeared to have resulted in a decline in functioning.
The Global Assessment of Functioning Scale (GAF) relates to psychological, social and occupational functioning, and is recommended for summarizing a clinician's judgment of an individual's overall level of functioning. [AVM]'s current GAF rating is assessed as 72, indicating mild symptoms and some impairment in social, occupational and psychological functioning.
The ARW observed that AVM was oriented as to person, time and place, displayed no deficits of memory and attention, and that there was no sign of thought disorder or psychosis. AVM denied "any current suicidal or self-harm thoughts.'
The ARW spoke with AVM's mother who expressed concerns about his alcohol consumption since the assault, his self-care at times, and with respect to his avoiding social situations involving persons of the same nationality as the offender.
Following psychometric testing the ARW diagnosed AVM as follows -
[AVM] is a 19 year old man whose symptomotology appears to have met the protocols for a diagnosis of Post-Traumatic Stress Disorder with depressive features.
[AVM] history prior to the assault was marked by three occasions of loss. No ongoing psychological symptoms were evident from these losses. His functioning prior to the assault appeared to have been appropriate based on self-report and information from his informant. This appeared to indicate a decline in functioning as a result of the assault which is the subject of this report. As noted previously, [AVM] indicated no experiences of trauma post the assault.
[AVM]'s current GAF rating indicated that lie experiences mild symptoms and some difficulty in social, occupational and psychological functioning.
While [AVM] appears to have received some benefit from counseling intervention to date, it is recommended that he would benefit from further participation in such counseling to reduce the impact of continued symptomotology on his functioning.
The diagnosis reached by the ARW is entirely consistent with that reached by CC Psychological Services to whom AVM was initially referred and whose report is dated 16 November 2010. That initial assessment concluded that AVM presented with "PTSD with notable features of anger and hyperarousal." The history and diagnosis is also consistent wit the treating notes of AVM's general practitioner, Dr Noonan.
There is also a short report dated 15 June 2011 from Steven Dragutinovich AVM's treating psychologist. This says that at that stage - seven months before the ARW assessed AVM - he was diagnosed with Post-Traumatic Stress Disorder and secondary polysubstance abuse (alcohol and cannabis). Once again this is generally consistent with the ARW's conclusions.
Having considered the evidence with respect to AVM psychological condition I accept that, at the time of the ARW's assessment, he was suffering from Post-Traumatic Stress Disorder with depressive features. For AVM to succeed in his claim for a Category 2 chronic psychological disorder it is necessary for him to prove that this disorder is both severely disabling and chronic.
Those words "severely disabling" should be given their ordinary meaning. In the Macquarie Concise Dictionary "severe" in connection with an illness has the meaning of "grave". "Disabling" has the meaning "to weaken or destroy the capability of; cripple; incapacitate".
The word "disabling" is not defined in the old Act. There has been considerable discussion as to the meaning of the word in the context of the Act. Some help is obtained from the Second Reading Speech in Parliament. When introducing the new compensable injury of "psychological or psychiatric disorder" into the Victims Compensation Bill the Minister Mr Dyer stated;
"The new injury category will require diagnosis of a long term psychological injury which results in severe impairment of the person's ability to function in their usual day to day activities." (Hansard 11.12.1998).
Thus to be eligible for Category 2 compensation AVM's impairment has to be more than mild or moderate. It has to be such as to be considered severely or seriously incapacitating or disabling. Buckley v Victims Compensation Fund Corporation (2004) NSW SC 513 at [34], per Greg James J, is authority for the proposition that it is a matter for the Assessor or Tribunal Member to determine whether the "affectation" and "incapacitation" caused by the act of violence amount to a condition that is overall within the meaning of the statutory compound phrase "severely disabling."
The ARW has addressed the question of the impact of AVM's psychologic disorder and expresses the opinion that it is mildly disabling. In so doing he has had regard to AVM's GAF (Global Assessment of Functioning) score of 72. The GAF scale provides a measure by which clinicians can express their opinions as to a person's level of functioning. It is often adopted by clinicians in reporting an individual's overall level of functioning. The GAF scale provides the measure for axis 5 of the multi-axial system of assessment in the Diagnostic and Statistical Manual of Mental Disordersis DSM IV TR. It provides ratings only in respect to psychological, social and occupational functioning of adults. It does not include environmental or physical limitations on function.
The GAF gives a score in a range. DSM IV TR instructs, at page 34 that -
The GAF scale is divided into 10 ranges of functioning. Making a GAF rating involves picking a single value that best reflects the individual's overall level of functioning. The description of each 10-point range in the GAF scale has two components: the first part covers symptom severity, and the second part covers functioning. The GAF rating is within a particular decile if either the symptom severity or the level of functioning falls within the range. For example, the first part of the range 41-50 describes "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting)" and the second part includes "any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." It should be noted that in situations where the individual's symptom severity and level of functioning are discordant, the final GAF rating always reflects the worse of the two. For example, the GAF rating for an individual who is a significant danger to self but is otherwise functioning well would be below 20. Similarly, the GAF rating for an individual with minimal psychological symptomatology but significant impairment in functioning (e.g., an individual whose excessive preoccupation with substance use has resulted in loss of job and friends but no other psychopathology) would be 40 or lower.
The ARW's rated AVM GAF score at 72. This is at the bottom end of the 71 to 80 range, the description of which is (page 34, DSM IV TR) -
If symptoms are present, they are transient and expectable reactions to psycho' social stressors (e.g., difficulty concentrating after family argument); no more than 71 slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).
The ARW expressed the opinion that AVM's level of functioning was mild. I accept that ARW's assessment as being consistent with all the relevant evidence before me.
I conclude that AVM's psychological disorder has resulted in a mild disability. As a result AVM has not demonstrated that he is entitled to compensation for a Category 2 chronic psychological disorder.
He is not eligible for compensation for a Category 2 chronic psychological disorder because his disorder is not moderately disabling, but mildly disabling.' In addition a Category 1 injury can only be claimed where the act of violence occurs in the commission of an armed robbery, abduction or a kidnapping.
Brain injury
AVM was admitted to the ED at the Wollongong Hospital at 0048 on 3 October 2010 as a result of "alleged assaults punched AVM kicked head stomped on l.o.c." He presented with an abrasion to the right wrist, a haematoma to the left temporal region, and intoxicated. Six hours later he was discharged with a Glasgow Coma Score of 15 (fully conscious) and given a head injury card. The notes record that he had a "superficial haematoma over L fronto temporal region" and a "suggestion of nasal septum deviation."
Contrary to AVM 's contention that he sustained a brain injury that resulted in moderate impairment of his social/intellectual functioning, there is no medical or neuropsychological evidence which establishes that AVM suffered any intellectual or social impairment as a result of the blows to his head.
Similarly, I reject the contention that he sustained a subdural haematoma as a consequence of the assault. A subdural haematoma is a bleed inside the skull. There is no evidence that AVM suffered a subdural haematoma. He sustained a frontotemporal haematoma to his forehead. There is no evidence that this resulted in ongoing disability or impairment.
A deviated nasal septum
AVM contended that he had suffered a deviated nasal septum requiring septoplastomy, and should be compensation on that basis. I do accept this. While there is evidence that AVM suffered a deviated septum as a result of the assault, there is no medical evidence that establishes that he needs, or has had, surgery to straighten his nasal septum.
I am however satisfied that AVM has established that he suffered a deviated septum. This is a compensable injury for which the standard amount of compensation is $3,400.00.
Scarring
AVM contended that he had suffered scarring of his face which resulted in minor disfigurement. The only evidence he has produced of this are two blurry, colour photographs which do not bear a date. One shows a red area and a fresh scar on his forehead, while the other shows his red and swollen nose. Both photographs were apparently taken shortly after his injury and obviously do not present a picture of the scarring as it now affects him. There is no evidence that scars in the photographs were permanent.
AVM bears the burden of persuading me that the scarring to his face has resulted in minor disfigurement. He has not done so.
The compensation threshold
In the light if the above AVM has established only one compensable injury: a deviated septum for which the standard amount is $2,400.00.
Section 20 of the old Act provides -
(1) Statutory compensation is not payable to a single person unless the total amount of compensation payable to that person, as compensation for compensable injuries, is at least:
(a) subject to paragraph (b)-$7,500, or
(b) such other amount as is prescribed by the regulations.
(Repealed)
(3) This section does not apply to statutory compensation payable to family victims or Victims Assistance.
(3A) For the purposes of this section:
(a) the total amount of compensation payable to a person as compensation for compensable injuries is the total amount arrived at after any reduction in that compensation to be made under section 19, 30 or 31 or the schedule of compensable injuries, and
(b) no other reduction in that compensation made under this Act is to be taken into account in determining the total amount of that compensation.
(4) This section applies despite any other provision of this Act.
Because AVM's entitlement to compensation is below the threshold fixed by s 20, statutory compensation is not payable to him and his appeal will be dismissed.
Conclusion
I make the following orders:
1. The appeal is dismissed.
2. Cost of the appeal is allowed in the exercise of my discretion in the sum of $500 inclusive of GST.
**********
Decision last updated: 14 November 2013
1
3