Boots and Military Rehabilitation and Compensation Commission (Compensation)

[2017] AATA 177

Boots and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 177 (3 February 2017)

Division:VETERANS' APPEALS DIVISION

File Number:           2014/5063

Re:Peter Boots

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Deputy President K Bean
Dr L Stephan, Member

Date:3 February 2017

Place:Adelaide

1.The decision under review is varied so as to provide that the respondent is liable to pay compensation to Mr Boots under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for the condition of “adjustment disorder with elements of Post-Traumatic Stress Disorder” with a date of injury deemed to be 18 November 1992.

2.Pursuant to subs 67(8) of the SRC Act, the respondent is to pay the reasonable disbursements incurred by Mr Boots as agreed or taxed, including Dr Nagesh’s fees related to this matter.

............ [Sgd] ...........................................

Deputy President K Bean

CATCHWORDS

COMPENSATION – Military rehabilitation and compensation – Adjustment disorder with elements of PTSD – Concession by respondent as to liability – Whether Tribunal has jurisdiction to consider other psychiatric conditions subsequently suffered – Whether employment made a material contribution to relevant conditions – Jurisdiction with respect to some subsequent conditions, but no material contribution – Decision under review varied.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, s 14, subss 54(5) and 67(8)

CASES

Abrahams v Comcare (2006) 93 ALD 147

Comcare v Muir (2016) 150 ALD 321

REASONS FOR DECISION

Deputy President K Bean
Dr L Stephan, Member

3 February 2017

1. In early October 1992, the applicant, Mr Boots, joined the Australian Army and commenced recruit training at Kapooka Army Training Centre in New South Wales.  Unfortunately, his experience in the Army was an extremely negative one.  He suffered treatment and witnessed events which he found distressing and traumatic, and which had a lasting impact on him.

2. Mr Boots requested a discharge within a few days of commencing his recruit training, which was not granted.  However, he was ultimately discharged at his own request on 29 November 1992, approximately two months after joining the Army.

3. Subsequent to his discharge, although he was relieved to be out of the Army, Mr Boots continued to suffer from mental health problems and became a heavy user of cannabis.  In early July 1995, he suffered a full-blown psychotic episode and was admitted to hospital.[1]  This was followed by another admission to hospital later in July 1995 and a further admission in September 1998, and Mr Boots was ultimately diagnosed with schizophrenia.

   [1]     Exhibit 2, PST3/350.

4. Many years later, on 8 December 2006, Mr Boots lodged a claim for workers’ compensation with respect to the condition “adjustment disorder”,[2] which he attributed to mistreatment during his recruit training.

   [2]     Exhibit 1, T3/18.

5. That claim was rejected by a determination of 2 September 2008, which Mr Boots did not immediately challenge.[3]  However, on 3 June 2014, he wrote to the respondent seeking a further assessment of his entitlements, which ultimately led to the respondent undertaking a reconsideration of the determination of 2 September 2008.

   [3]     Ibid, T21/214.

6. In the reconsideration decision of 24 September 2014, a delegate affirmed the original determination denying liability in respect of a claim for adjustment disorder.[4]  In her reasons for decision, the delegate indicated:

   ... [I] am not satisfied on the balance of probabilities, that your former Army service has contributed in a material degree to the claim for adjustment disorder or the conditions of schizoaffective disorder, paranoid personality disorder and cannabis abuse.[5]

   [4]     Ibid, T27/225.

   [5]     Ibid, T27/230.

7. On 30 September 2014, Mr Boots applied to the Tribunal for review of that decision, giving rise to this matter.

   STATUTORY FRAMEWORK AND ISSUES

8. The legislation applicable to determining Mr Boots’ claim is the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), as in force when Mr Boots suffered his injury. At that time, in order for a disease to be compensable, the SRC Act required that an employee’s employment had made a “material contribution” to the disease.[6]

   [6] The SRC Act was amended in 2007 so as to require a contribution “to a significant degree”: Item 11 in Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007.

9. Having regard to that requirement and the terms of Mr Boots’ claim, it follows that the issues for our determination are:

   (a)Whether Mr Boots’ Army service made a material contribution to his adjustment disorder;

   (b)Whether we have jurisdiction to consider any of the other conditions subsequently suffered by Mr Boots; and

   (c)If so, whether Mr Boots’ Army service made a material contribution to any of those conditions.

10. With respect to the first issue, immediately prior to the hearing commencing on 23 June 2016, the respondent advised the Tribunal and Mr Boots that it no longer disputed liability for Mr Boots’ adjustment disorder.  An email from the respondent advised that the respondent:

    1.    concedes that the reviewable decision dated 14 July 2014,[7] which affirmed the determination dated 2 September 2008 to deny liability under section 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for a psychiatric condition, cannot be sustained;

    2. agrees to the Tribunal setting aside the reviewable decision dated 14 July 2014, and substituting a decision that liability under section 14 of the SRC Act is accepted for adjustment disorder with elements of PTSD, with date of injury deemed to be 18 November 1992 (date of admission to Kapooka Medical Centre due to suicidal ideation);

    3. says that the matter should be remitted to the respondent for determination of the applicant’s entitlement to compensation under section 16 (medical expenses) and section 19 (incapacity payments) of the SRC Act; and

    4.    agrees to pay Dr Nagesh’s fees for participation in the medical experts’ conference and associated activities.[8]

    [7]     We note that the reference to this date appears to be an error, as the reconsideration decision was dated 24 September 2014.

    [8]     Email from Mr Sandy McGregor on behalf of the respondent dated 16 June 2016.

11. As we regard that concession as having been correctly made, we propose to make a decision consistent with that suggested by the respondent.  However, that leaves the question of whether any of Mr Boots’ other psychiatric conditions were materially contributed to by his service and whether we have jurisdiction to consider those other conditions.

12. It is convenient to deal with the substantive issue first before turning to the question of jurisdiction.

    DID MR BOOTS’ ARMY SERVICE MATERIALLY CONTRIBUTE TO ANY OF HIS SUBSEQUENT MEDICAL CONDITIONS?

13. In addressing this issue, we have been greatly assisted by the opinions of Dr Rajan Nagesh, Mr Boots’ treating Psychiatrist, and Doctors Marty Ewer and Tony Davis, both Psychiatrists retained on behalf of the respondent.

14. In particular, we have been assisted by a joint written memorandum prepared by all three doctors, and by their concurrent oral evidence given at the hearing.  Whilst we have had regard to their earlier reports, we will refer mainly to the joint memorandum and the concurrent oral evidence as being the most accurate representation of the final opinions of each doctor on the relevant issues.

15. In their joint written memorandum, all three doctors agreed (consistently with the respondent’s concession), that Mr Boots had suffered an adjustment disorder with elements of PTSD from late 1992 and for about six months thereafter.  They also agreed that the conditions from which Mr Boots was currently suffering and had been suffering following his Army service were schizoaffective disorder, cannabis abuse, paranoid personality traits/disorder, compulsive gambling and vulnerable personality.[9]

    [9]     Exhibit 3, Joint Written Memorandum of Dr Rajan Nagesh, Dr Marty Ewer and Dr Tony Davis, paragraph 3.

16. With respect to causation, none of the doctors considered there was any connection between Mr Boots’ service and his paranoid personality traits/disorder, compulsive gambling or vulnerable personality.  Accordingly, we do not need to consider those conditions further.

17. With respect to Mr Boots’ schizoaffective disorder, all three doctors ultimately agreed that there was no direct connection between Mr Boots’ Army experiences and his adjustment disorder on the one hand, and the development of his schizoaffective disorder on the other.  However, each of them conceded that it was quite possible that his cannabis abuse had brought forward the onset of his schizoaffective disorder and contributed to the disorder to that extent.  In determining whether there was a causal connection between Mr Boots’ service and his schizoaffective disorder, it is accordingly important to scrutinise his cannabis use and the development of his condition of cannabis abuse.  Clearly, if Mr Boots’ service contributed to the development of his condition of cannabis abuse, it could potentially be regarded as having contributed to the schizoaffective disorder as well.

18. During their oral evidence, all three doctors ultimately accepted that, assuming Mr Boots began to use cannabis regularly soon after his discharge from the Army, there was a causal connection between his Army experiences, the development of his adjustment disorder and his cannabis use.  On the evidence before us, we accept that Mr Boots' cannabis use did commence shortly after his discharge from the Army, and that those Army experiences contributed to his cannabis usage at that time.

19. Critically, however, none of the three doctors accepted that there was a sufficient causal relationship between Mr Boots’ cannabis use following his discharge and the development of his condition of cannabis dependence/abuse such that his Army service made an indirect (and meaningful) contribution to his development of schizoaffective disorder in 1995.  Dr Nagesh appeared to express an opinion along those lines in one of his earlier reports, however he clearly resiled from this during his oral evidence before us.

20. In the event therefore, while there is medical evidence before us which links Mr Boots’ cannabis abuse with the development of his schizoaffective disorder, there is no medical evidence which supports a link between Mr Boots’ Army service and the development of his condition of cannabis dependence/abuse which, in turn, contributed to his schizoaffective disorder.

21. Clearly, in order to establish a causal connection between his service and his schizoaffective disorder, Mr Boots would need to show links between his service, his cannabis use, the development of cannabis dependence and the subsequent development of schizoaffective disorder.  However, in the event, the medical evidence does not support one of the links in that chain of causation, namely the link between cannabis use and cannabis abuse.

22. It follows that there is no medical evidence before us which would support a conclusion that Mr Boots’ Army service made a material contribution to his cannabis abuse or schizoaffective disorder.  Accordingly, we are not satisfied that the requisite causal connection has been established.

    DO WE HAVE JURISDICTION TO DEAL WITH MR BOOTS’ OTHER CONDITIONS?

    Schizoaffective disorder, cannabis abuse and paranoid personality disorder

23. The question of whether Mr Boots’ claim for compensation relating to an adjustment disorder suffered in 1992 should be interpreted so as to also embrace claims for cannabis abuse at some later time, a schizoaffective disorder in 1995 and also paranoid personality disorder is not an easy one.  We acknowledge that the reconsideration delegate made reference to those conditions and, accordingly, some of the factors which sometimes weigh in favour of a more narrow construction of a claim for compensation do not apply here.

24. Ms Gray of counsel, who appeared for the respondent, referred us to the authority of Abrahams v Comcare (2006) 93 ALD 147, where his Honour Justice Madgwick observed:

    The original decision-maker might conceivably have had many powers, the exercise of which may have been prompted by what he or she knew of the applicant’s claim, without those powers being powers or discretions relevant to the exercise of the decision to be made. However, it seems to me that the Tribunal Member did not adequately appreciate or apply the following legal propositions, which I think are correct:

    1.     In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.

    2.     In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.

    3.     The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given.

    4.     Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given.

    5.     There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.[10]

    [10]    Abrahams v Comcare (2006) 93 ALD 147, [18].

25. Ms Gray also referred us to the more recent decision of his Honour Justice Flick in Comcare v Muir (2016) 150 ALD 321. In that decision, his Honour concluded that the Tribunal had wrongly entertained an injury suffered in 2010-2012, despite the fact that the original claim form, the determination of the delegate, the request for reconsideration and the reconsideration decision all related to an injury sustained in October 2013. His Honour observed:

    Although limited flexibility is conferred upon the Tribunal to reformulate a claim, and whatever may be the outer limits of the power to do so, a claim confined to an injury suffered in October 2013 cannot be transformed into a claim for an injury suffered in 2010-2012.  Unlike the claim resolved by Katzmann J in Kennedy where there had been a general description of the injury suffered and no specification of the date of injury, the facts in the present case stand in contrast.  On the facts of the present case there was repeated reference to the injury the subject of the claim being that suffered in October 2013.  It is not capable, with respect, of a conclusion that the claim was for an injury suffered at an earlier, unspecified point of time.[11]

    [11] (2016) 150 ALD 321, [37].

26. However, we consider it to be highly significant that in making the original determination, the delegate had the benefit of a number of reports from Dr Nagesh, together with a report of Dr Ewer dated 3 June 2008, and was accordingly appraised of Mr Boots’ medical history up until 2008.  Furthermore, she was not only aware of these conditions, but purported to make a determination with respect to them, stating:

    Although you are suffering from several psychiatric disorders now including Schizoaffective Disorder and Paranoid Personality Disorder as well as persistent Cannabis Abuse, on the evidence available it has not been possible to link any of these to your service.  Therefore, and taking into account the response from SCMA, I conclude that current available evidence on your claim has failed to substantiate that, on the balance of probability as distinct from possibility, you suffered from an Adjustment Disorder at the time of your discharge or that the conditions from which you now suffer were materially contributed to by your military service.[12]

    Similarly, the reconsideration delegate also addressed the conditions of schizoaffective disorder, paranoid personality disorder and cannabis abuse.[13]

    [12]    Exhibit 1, T21/217.

    [13]    Ibid, T27/230.

27. We also note that subs 54(5) of the SRC Act provides that strict compliance with the approved compensation claim form is not required and “substantial compliance is sufficient”. 

28. We note further that in her written submissions for the respondent, Ms Gray acknowledged that it would be consistent with the approach taken in Muir and Abrahams for the Tribunal to find that it had jurisdiction with regard to these conditions.[14]

    [14] Respondent’s Outline of Submissions dated 23 June 2016, at [29].

29. While the issue is not free from doubt, we have concluded on balance that in the unusual circumstances which have arisen, subsequent to lodging his compensation claim form, Mr Boots’ claim was effectively elaborated to include claims for the conditions of cannabis abuse, paranoid personality disorder and schizoaffective disorder, which have been the subject of determination and reconsideration by the respondent.  We have accordingly also concluded that we have jurisdiction with respect to those conditions.

30. While we have jurisdiction, however, as we have indicated, we are not satisfied that any of those conditions was materially contributed to by Mr Boots’ Army service and, accordingly, we propose to maintain the denial of liability for those conditions.

    “Compulsive gambling” and “vulnerable personality”

31. We are not satisfied that we have jurisdiction with respect to the conditions of “compulsive gambling” or “vulnerable personality”, neither of which was referred to in the determination or reconsideration decisions.  In any event however, as we have indicated, there is no evidence before us linking either of these conditions with Mr Boots’ Army service.

    CONCLUSIONS

32. For the reasons we have given, we have concluded that we should vary the decision under review so as to accept liability for Mr Boot’s “adjustment disorder with elements of PTSD”.  However, while we consider that we also have jurisdiction with respect to Mr Boots’ conditions of schizoaffective disorder, cannabis abuse and paranoid personality disorder, we are not satisfied that any of those conditions was materially contributed to by his Army service.  Therefore, we have decided not to make any other changes to the decision under review.

33. For completeness, we note that although the respondent’s original concession related to setting aside the decision under review, Ms Gray indicated at the hearing that in the event the Tribunal concluded it had jurisdiction with respect to any of Mr Boots’ other conditions, the respondent had no difficulty with the Tribunal instead varying the decision under review in a manner consistent with the concession.

    COSTS

34. As Mr Boots has achieved an outcome which is more favourable to him than the decision under review, we will also make an order that the respondent reimburse him for his reasonable disbursements.  We note he indicated at the hearing that he had not incurred any legal costs (other than disbursements) in the context of this matter.

    DECISION

1. The decision under review is varied so as to provide that the respondent is liable to pay compensation to Mr Boots under s 14 of the SRC Act for the condition of “adjustment disorder with elements of PTSD” with a date of injury deemed to be 18 November 1992.

2. Pursuant to subs 67(8) of the SRC Act, the respondent is to pay the reasonable disbursements incurred by Mr Boots as agreed or taxed, including Dr Nagesh’s fees related to this matter.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

......... [Sgd].................................................

Administrative Assistant

Dated: 3 February 2017

Dates of hearing:	23 and 24 June 2016
Applicant’s Representative:	Mr R Nicholson
Advocate for the Respondent:	Ms R Gray
Solicitors for the Respondent:	Ms N Donaghy Sparke Helmore Lawyers