Brogan and Comcare
[2002] AATA 573
•12 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 573
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2001/460, Q2001/1170
GENERAL ADMINISTRATIVE DIVISION )
Re DEAN ALLAN BROGAN
Applicant
And COMCARE
Respondent
DECISION
Tribunal Dr EK Christie, Member
Date12 July 2002
PlaceBrisbane
Decision The Tribunal affirms the decisions under review. This means the applications for review are unsuccessful.
..................(Sgnd)..................
EK Christie
Member
CATCHWORDS
WORKERS' COMPENSATION - compensation - Commonwealth employees - compensation for cost of medical treatment - permanent impairment - separate injuries - whether further compensation payable for increase in whole person impairment rating.
Safety, Rehabilitation and Compensation Act 1988 ss 16, 24, 25, 39
Briginshaw v Briginshaw (1938) 60 CLR 336
Comcare v Mihaljovic (2000) 170 ALR 420
REASONS FOR DECISION
12 July 2002 Dr EK Christie, Member
This is an application to review two decisions of the respondent which –
(a)disallowed the applicant's claim for further payment of lump sum compensation for permanent impairment for adjustment disorder (Q2001/1170: 29 October 2001); and
(b)disallowed the applicant's claim to be provided with a recliner lounge chair and an "aid or appliance"; an aid or appliance had been approved under the rehabilitation plan (Q2001/460: 30 March 2001).
The Tribunal had before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and the various documents tendered by the parties.
The applicant, Dean Allan Brogan and Ms Bronwyn Jenner, an Occupational Therapist called by the respondent, gave oral evidence at the hearing. Mr Brogan's evidence was extremely brief. He was not cross-examined.
FACTSThe general facts were not in dispute and may be stated briefly. Mr Brogan is currently aged 33 years and was a serving member of the Army from 27 January 1987 until his discharge, for medical reasons, on 21 December 1994.
Mr Brogan sustained a back injury during the course of his employment whilst playing Army organised sport, in June 1993.
It is not in dispute that Mr Brogan now has two accepted conditions – a back condition (spinal stenosis at L2) and a psychiatric condition (adjustment disorder).
On 7 December 1995, Mr Brogan received lump sum permanent impairment compensation in relation to his accepted back condition, based on a 20% whole person impairment and using Table 9.5 of the "Comcare Guide".
On 29 May 2001, the applicant sought to extend liability for his back injury to include his psychiatric condition – specifically, an adjustment disorder relating to his back condition. This claim for further compensation was disallowed by the respondent on 7 June 2001.
It is not in dispute that Mr Brogan's compensable back condition justifies a conclusion that this condition would benefit from some agreed form of suitable chair as an "aid or appliance". However, the parties are in dispute over whether the "aid of appliance" should be a recliner lounge chair (the "Dakota") or an upright chair (the "Laverne Victoria" lounge chair).
EVIDENCE OF BRONWYN JENNER, OCCUPATIONAL THERAPISTThe evidence of Ms Jenner related to the type of chair that was suitable for Mr Brogan's accepted back condition and which could be approved under the rehabilitation plan.
Ms Jenner said that the basis for her recommendation of a suitable chair for Mr Brogan was one that would assist with pain management and, as well, would maximise independence with his daily living activities. A suitable chair would need to have a very pronounced lumbar support backrest and also firm supportive foam padding in the chair. These features were found in the "Laverne Victoria" lounge chair.
Ms Jenner stated that a recliner chair would not be appropriate for Mr Brogan's back condition. Such a chair would normally be required by someone who had to be seated in a chair for long periods of time, e.g. because of cardiovascular problems or spinal injury. A recliner chair would not be appropriate for someone who was functioning on a day-to-day basis – such as Mr Brogan – because this chair did not encourage correct alignment of the spine. Moreover, whilst a reclining chair might bring some short term pain relief, it did create a more unstable spine because it was more difficult for a person to sit in an upright position and to support themselves in an upright position.
One consequence of a dependence on using a recliner chair was that it could lead to abdominal and spinal muscle weakening together with increasing pain – particularly if it were used by Mr Brogan as the only chair for all his seated tasks that he would otherwise use a lounge room chair for.
Ms Jenner stated that her assessment of Mr Brogan's level of functioning, some eight months following Dr Scott-Young's report (T10), was lower than she expected in terms of walking, standing and sitting. Consequently, she concluded that reliance on a high dependency aid, such as a recliner chair, in Mr Brogan's circumstances, could encourage an "ongoing sick role" for Mr Brogan.
Ms Jenner concluded with the statement that a recliner-type chair in these circumstances would be unsuitable because it could become a high dependency aid and be inappropriate, given the nature of Mr Brogan's back condition.
Ms Jenner agreed with the Tribunal proposition that the standard approach used by occupational therapists in selecting an aid for someone in Mr Brogan's circumstances would be to balance short-term relief with avoidance of muscular weakening.
During cross-examination, Ms Jenner responded to questions stating:
(a)that she had not tested Mr Brogan's concerns that upright chairs did not provide him with support, or if they gave him symptomatic relief;
(b)that she agreed with Dr Parson's opinion that whilst Mr Brogan was using the reclining chair for limited periods, he would get symptomatic relief;
(c)that, whilst acknowledging prolonged periods of use of the recliner chair could lead to problems, she could not put an "exact timeframe on it". Later, she agreed with the proposition that a prolonged period was "hours and hours on end for days and days";
(d)that counselling advice by occupational therapists normally would involve suggestions that "people change their posture every 20 – 30 minutes from sitting to standing or walking when someone had symptom experience";
(e)that her reported comment on Mr Brogan's tolerance for sitting of approximately 30 minutes was based on a response from Mr Brogan where he said his "sitting tolerance was 30 minutes on most chairs";
(f)that she had not commented in her report on the length of time Mr Brogan could sit before he became uncomfortable;
(g)that she accepted the proposition that there was always a possibility that a person with a back condition could take on a sick role;
(h)that someone with a back condition should not sit for longer than 30 minutes without changing their posture;
(i)that it would be reasonable to combine the use of a chair for 30 minute periods with getting up and moving around;
(j)that occupational therapists provided education about the appropriate use of "aids and appliances".
CONTENTIONS AND SUBMISSIONS OF THE PARTIES
Claim for Further Payment of Lump Sum Compensation for Permanent Impairment for Adjustment Disorder
Mr Harding, Counsel for the applicant, submitted that, notwithstanding Mr Brogan's adjustment disorder had a connection with his previously existing back condition, it was open to the Tribunal to treat both conditions as separate injuries for the purposes of the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act").
Referring to Comcare v Mihaljovic (2000) 170 ALR 420, Mr Harding contended that this case was simply authority for the proposition that subsection 25(4) of the SRC Act required a 10% increase in the degree of permanent impairment of an employee (after applying Table 14.1 in cases of multiple impairments) even though a particular impairment had increased by 10%. Moreover, the Federal Court had not made any finding whether, in determining an employee's degree of permanent impairment for the purpose of calculating compensation under Section 24, a combined assessment under Table 14.1 was to be made of all of the employee's impairments, whether or not those impairments resulted from the same or different injuries.
It was Mr Harding's contention that this Tribunal in Mihaljovic's case had concluded that a combined assessment should be made under Table 14.1 of all of the employee's impairments whether or not those impairments arose out of the same or different injuries. However, Finn J had expressed no opinion on whether this interpretation of Section 24 of the SRC Act was correct. The parties had not put the interpretation in issue.
Mr Harding further contended that the scheme of the SRC Act rested on the notion of "injury". The language used in the provisions of the Act made it clear that each entitlement to compensation under the Act was to be considered separately by referring to each work-related injury: see Sections 4; 6(1), (3); 6A(1), (2), (4), (7); 48 and 50 where the singular form of "injury" is used. Furthermore, Section 24 of the Act provided that "where an injury results in a permanent impairment, Comcare was liable to pay compensation to the employee in respect of the injury". Accordingly, because the SRC Act provided that separate and distinct compensation consequences flowed from each injury (in particular, Section 24), the result was that permanent impairment arising from separate injuries should not be combined under Table 14.1.
Mr Harding submitted that there may be a period of time, varying up to many years, before a psychiatric condition might follow a physical injury. Mr Harding submitted that Mr Brogan's adjustment disorder was such a consequence of his ongoing pain and physical limitations brought about by his back condition. Furthermore, but for Mr Brogan's activities during his Army employment, he would not have suffered his back condition and would not have then developed the adjustment disorder over time. The delay in the emergence of his adjustment disorder resulted in only his physical injury being assessed for the purposes of permanent impairment at a time when his adjustment disorder did not qualify for assessment.
In Mihaljovic's case, Miss Ford, Counsel for the respondent, contended that whilst Finn J did not decide the point whether or not the two injuries could be combined, "he was not meaning any criticism of it".
Furthermore, with reference to the Guide, Miss Ford submitted that the scheme was "whole-person based", that it included psychological as well as physiological factors, and if two injuries were not combined it could lead to someone having an impairment rating greater than 100%.
Ms Ford concluded by submitting that Mr Brogan was not suffering a combined impairment of 30% which needed to be demonstrated, given the provisions of subsection 25(4) of the SRC Act and the decision in Comcare v Mihaljovic (2000) 170 ALR 420. Instead, Mr Brogan currently suffered a whole person impairment of 24%. This could be calculated by combining the 15% impairment given by Dr Scott-Young in respect of the back injury and the 10% assessed by Dr New in respect of adjustment disorder.
"Aid or Appliance Reasonably Required by the Employee"Mr Harding identified the issues for the Tribunal to decide: whether a non-reclining "Laverne" style chair or a "Dakota" reclining lounge chair was "an aid or appliance reasonably required by the employee". In summary, Mr Harding submitted that:
A non-reclining chair was not suitable because it did not provide comfort and support and did not assist Mr Brogan with his pain management; and
A reclining chair was suitable and reasonable because it provided Mr Brogan with comfort and support and it assisted with his pain management. Furthermore, there was nothing in the evidence upon which the Tribunal could be reasonably satisfied that the applicant would become dependent upon it.
In deciding this issue, Mr Harding also submitted that the Tribunal would need to conclude whether a reclining chair would be a dependency item for Mr Brogan and whether it would encourage an ongoing "sick role" for him.
However, it was Mr Harding's contention that the medical evidence established that a person in the applicant's circumstances would need to guard against overusing a reclining chair as it could have adverse consequences for his condition if he did so. However, there was nothing in the evidence to indicate that the applicant would overuse the chair or become dependent on it.
Moreover, Mr Harding submitted it was clear from the applicant's evidence that he was aware of this concern. However, there was no suggestion on Mr Brogan's part that he intended to use it for long periods. Furthermore, potential overuse of the chair could be addressed by appropriate education which could form part of the rehabilitation plan provided by occupational therapists.
It was Mr Harding's contention that assessment of the medical evidence established that the applicant would gain some symptomatic relief in the form of reduction in his backache by using a reclining chair. Subject to the period of use the consensus medical opinion was that a reclining chair would provide the applicant with symptomatic relief. Importantly, medical opinion did not challenge the notion that an ordinary non-reclining lounge chair did not provide the applicant with symptomatic relief.
Mr Harding relied on the following medical opinion to support his submissions on the need for a recliner chair.
(a) Report of Dr Parsons
"It is very probable that Mr Brogan would be very much more comfortable reclining in an appropriate chair for limited periods and while he was reclining he would very probably gain some symptomatic relief in the form of reduction in his backache. It should be stated, however, that spending prolonged periods in reclining chair or using as a therapeutic measure, is probably inadvisable in that it leads to abdominal and spinal muscle weakening and further increasing backache. Nonetheless, some temporary diminution of backache can certainly be achieved by the use of a recliner.": 10 December 2001
(b) Report of Dr Geffen – No. 1
"His chief problems include when being seated for a long period of time he feels numbness and tingling and some burning sensations in both his legs. He also gets them in his feet. If he is seated for a long period, his back and leg pain increases and he is most comfortable in semi reclining position. I note that report from the occupational therapist, recommending the use of a reclining lounge chair." 29 January 2000
(c) Report of Dr Geffen – No. 2
"I would like to clarify my position in regards to the use of a reclining lounge chair as recommended by another treating specialist and by end occupational therapist. I think that this would be a good idea as it would allow him to get some comfort whilst doing stationary activities such as listening to music, watching television or reading. He finds difficult to remain seated for long periods on an ordinary lounge and I think that this would be a good aid for him in having increased quality of life." 27 February 2002
(d) Report of Dr Geffen – No. 3
"My opinion is and always has been that a reclining lounge chair as recommended by the occupational therapist and Dr Scott Young is appropriate for the management of Mr Dean Brogan's back pain." 26 March 2002
Mr Harding concluded with the submission that the provision of a reclining chair was in accordance with the rehabilitation plan approved by the respondent. Accordingly, such chair was "reasonably required by the employee, having regard to … the nature of the employee's impairment and … the requirements of the rehabilitation program."
Ms Ford submitted that the available evidence supported the conclusion that an upright chair would be a suitable "aid or appliance" in relation to Mr Brogan's compensable back condition.
Based on her assessment of the expert evidence, Ms Ford contended that it was reasonable and appropriate that Mr Brogan be provided with the "Laverne Victoria" lounge chair, rather than a recliner style chair.
Ms Ford's contention relied on the following chronology of expert opinion:
(a)T6/13 – Letter from Dr Scott-Young – "there would be value in providing him with an orthopaedic reclining chair". 7 December 1999
(b)T17/44 – Letter from Dr Scott-Young to Ms Jenner – "The orthopaedic/supportive ensemble mattress and a lounge chair would be appropriate for Mr Brogan's condition. I agree with your comments regarding the recliner-style chair." 2 February 2000
(c)T11/27 – Report of Ms Jenner of EKCO – "Based on Dr Scott-Young's recommendation, I would therefore support provision of an alternative lounge chair for Mr Brogan. A suitable style of chair is the Laverne Victoria Lounge Chair, available at a cost of approximately $600.00." 14 September 2000
(d)T12/31 – Rehabilitation Plan – Overall plan goals – "to assist with pain management and maximize independence with daily living activities." 15 September 2000
(e)Letter from Ms Jenner of EKCO to Dr Scott-Young – "I recommended that Mr Brogan be provided with an orthopaedic supportive ensemble mattress to the value of $1500.00 and a lounge chair with lumbar support. I did not support the provision of a recliner style chair, as it was my opinion that this equipment is a high dependency aid and could encourage an ongoing 'sick' role for Mr Brogan." 25 October 2000
(f)T16/43 – EKCO Progress Report – "Mr Brogan has provided quotes to EKCO for a recliner lounge chair and mattress. The quotes provided were for equipment considered to be high dependency aids and not recommended for Mr Brogan." 31 October 2000
(g)T19/46 – Letter from EKCO to MCRS – "The quotes obtained by Mr Brogan were for equipment that was considered to be high dependency aids and not reasonable, given the nature of his compensable condition." 22 November 2000
(h)T21/50 – Rehabilitation Plan Amendment – "Laverne Victoria lounge chair – provide comfort and support and assist with pain management." 27 November 2000
(i)Report of Dr Parsons – "It is very probably that Mr Brogan would be very much more comfortable reclining in an appropriate chair for limited periods and while he was reclining he would very probably gain some symptomatic relief in the form of a reduction in his back ache. It should be stated, however, that spending prolonged periods in a reclining chair or using it as a therapeutic measure, is probably inadvisable in that it leads to abdominal and spinal muscle weakening and further increasing backache. Nonetheless, some temporary diminution of back ache can certainly be achieved by the use of a recliner." 10 December 2001
(j)Report of Dr Geffen – "I think that suitable lumbar supportive seating perhaps with a reclining option to remove some of the stress on his lumbar spine and consequently the nerves to his legs would be an appropriate aid." 29 January 2002
(k)Letter from Dr Geffen to Dibbs Barker Gosling – "…my opinion is and always has been that a reclining lounge chair as recommended by the occupational therapist and Dr Scott Young, is appropriate for the management of Mr Dean Brogan's back pain. I am not an expert on styles of chair, however, if the occupational therapist thinks that this would be suitable then I agree." 26 March 2002
LEGAL FRAMEWORK
The relevant provisions in the Safety, Rehabilitation and Compensation Act 1988 for this application for review are as follows:
"Compensation for injuries resulting in permanent impairment
24(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.
…….
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
Interim payment of compensation
…….
25(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of subsequent increase in the degree of impairment, unless the increase is 10% or more.
Section 39 Compensation payable in respect of certain alterations etc
39(1) Where:
(a) an employee suffers an injury resulting in an impairment; and
(b)the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;
the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:
…….
(e)any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;
being ….. or aids or appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program."
The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.
The first issue for the Tribunal to decide is whether Mr Brogan's claim for a further payment of lump sum compensation for permanent impairment for adjustment disorder should be granted.
In Comcare v Mihajlovic (supra) at 428, Finn J stated at paragraph [27] and [28]:
"[27] While an increase in percentage degree of permanent impairment necessarily involves a comparison of the percentage degrees at two different times, that comparison in my view is to be based upon actual medical appraisals of the relevant person for the purpose of making the determinations at those times. In other words it is the person's actual percentage degrees of impairment as measured in each instance in accordance with the guide that are compared so as to ascertain, for 2 25(4) purposes, whether a 10% increase has occurred.
[28] If, for example, one of a number of impairments (a) existed and was given a percentage value at time 1, and (b) contributed (via table 14.1) to the determined percentage degree of permanent impairment, that impairment would only be relevant at later time 2 if it was then on the evidence found both to exist and to have a value that could (again via table 14.1) contribute to the determination of percentage degree of permanent impairment at that time. If the person's actual impairments had so altered that it did not so contribute at the later time, it could not be taken into account for s 25(4) comparison purposes. It simply would not then be a contributing impairment to that person's assessed percentage degree of permanent impairment at that time."
The Tribunal concludes that there was a latency period of a number of years before there were objective symptoms of Mr Brogan's adjustment disorder. Furthermore, Counsel for Mr Brogan has acknowledged that the applicant's adjustment disorder was a consequence of his pain and physical limitations brought about by his back condition (see paragraph 22). Applying the reasoning of Finn J (supra), the Tribunal finds Mr Brogan's adjustment disorder did not exist, or contribute, at the time permanent impairment was first assessed (7 December 1995). Accordingly, adjustment disorder could not be taken into account at this time. Accordingly, Table 9.5 was the appropriate Table to assess Mr Brogan's whole person impairment. (Tribunal emphasis)
Finn J at paragraph [29] next stated:
"[29] That it may previously have been assessed as a permanent impairment in no way precludes its later being found not to continue to be so when a new assessment is undertaken of the person. Medical prophesy is by no means infallible. If a change occurs and a later assessment of whole person impairment is invited, changed circumstances can – and must properly – be taken into account at that later time."
The Tribunal concludes that "changed circumstances" in the nature of Mr Brogan's injury occurred beyond December 1995 and that later assessment of permanent impairment must properly take into account his "adjustment disorder" as well as for his back condition.
Finally, Finn J at paragraphs [30] and [31] stated:
"[30] Likewise when that later assessment is made, it involves the making of medical appraisals under the guide at that time. Provided the percentage values are ascertained using what then are reasonable and appropriate tables for assessing the particular impairments in question as a matter of judgment, it is irrelevant in my view that for the purposes of a prior determination different tables were used in making the individual assessments of particular impairments then experienced by the person in question.
[31] In each instance the determination to be made is the same – the percentage degree of permanent impairment of the employee. The comparison is not of the percentage degrees of the individual impairments where there are multiple impairments. That at different times different tables might reasonably be considered more appropriate to be employed in leading to that determination in no way falsifies or otherwise vitiates the comparison to be made. It merely suggests that at a particular time one rather than another table may be able properly to be involved in aid of the determination to be made."
The Tribunal concludes that the "reasonable and appropriate" Table to use in May 2001 to assess Mr Brogan's impairment for his back condition and adjustment disorder is Table 14.1. The Comcare Guide states with respect to "Double Assessment" that:
"Where an employee suffers from more than one impairment the values are not added but are combined using the Combined Values Table. The purpose of this table is to give the total effect of all impairments, according to a formula, as a percentage value of the employee's whole bodily system or function(see Table 14)."
Furthermore, the Tribunal concludes it is "irrelevant …. that for the purposes of a prior determination, different Tables were used in assessing Mr Brogan's injuries at different times". That is, the nature of the injuries of Mr Brogan and the latent emergence of objective symptoms to facilitate diagnosis and assessment of his adjustment disorder, justifies the use of different tables in December 1995 and May 2001. That is, "at a particular time one rather than another table may able properly to be invoked in aid of the determination to be made."
Applying Table 14.1, the Tribunal concludes that in May 2001, Mr Brogan was suffering a whole person impairment of 24% i.e. by combining the 15% impairment given by Dr Scott-Young (T10 Folio 23) in respect of the back injury and the 10% assessed by Dr New (T13 Folio 52) in respect of adjustment disorder. Accordingly, because Mr Brogan was not suffering a combined impairment of 30%, the requirements of subsection 25(4) are not satisfied as the increase in the degree of impairment is less than 10%.
The second issue for the Tribunal to decide is the nature of the aid or appliance that is reasonably required by Mr Brogan. The parties relied on divergent expert opinion as well as different interpretations of the same expert opinion [see paragraphs 30(a), 35(i) and paragraphs 30(d), 35(k)]
The Tribunal has carefully considered the factual evidence before the Tribunal in relation to the legal standard of proof as described by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, 362.
"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality…. it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But unreasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved..."
The Tribunal accepts the evidence of Ms Jenner that the standard approach used by occupational therapists in selecting an aid or appliance that would be suitable for Mr Brogan was to balance short-term pain relief with the avoidance of muscular weakening (see paragraph 16). In this regard the Tribunal considers that much of the medical opinion before the Tribunal has either not effectively considered this balance, or not considered the balance at all. Furthermore, the Tribunal considers that such a balance has been a paramount consideration for the development of Mr Brogan's rehabilitation plan by Ms Jenner. The Tribunal also considers as significant, the concession made by Dr Geffen to Ms Jenner's professional opinion, in terms of the suitability of a chair [see paragraph 33(k)]. In addition, the Tribunal accepts Ms Jenner's opinion as plausible that a recliner chair could become a high dependency aid, and not reasonable, given the nature of Mr Brogan's compensable condition. Accordingly, the Tribunal accepts the evidence of Ms Jenner given that it is objectively based (T11, 14 September 2000; T9, 22 November 2000), reflects a continuing review over six points in time from 14 September 2000 to 10 January 2001, and that her professional opinion has some degree of orthopaedic support during the latter phases of the chronology of medical opinion provided to the Tribunal.
Applying the "Briginshaw test" to the above conclusions, the Tribunal finds, on the balance of probabilities, that the aid or appliance that would be reasonably required for Mr Brogan's injury would be the "Laverne Victoria" lounge chair.
The Tribunal has not given any weight to the respondent's submissions that the use of a recliner chair could encourage an ongoing "sick role" in Mr Brogan. The concept of "sick role" or "Abnormal Illness Behaviour" is a long established and recognised medical concept. It includes attributes such as "an inaccurate evaluation of health state". Specifically, that an explicit judgment needs to be made in order to conclude that a person is exhibiting abnormal illness behaviour: essentially, it is dependent on a belief that the person's patient's objective pathology does not entitle them to be placed in the type of sick role the person expects for the reasons claimed.
The Tribunal concludes that Ms Jenner's observations in this regard (paragraph 14) as subjective and speculative – lacking sufficient objective criteria according to the standards and criteria of medicine to enable such a conclusion of abnormal illness behaviour be formed in Mr Brogan's case.
Notwithstanding this conclusion, the Tribunal has some concern in terms of the respondent adhering to the Tribunal's General Practice Direction. At the hearing, the applicant expressed concern that a document, prepared by Ms Jenner, expressing a professional opinion (as to a possible "sick role") in regard to Mr Brogan, was only received, at the applicant's request, the afternoon before the hearing. The document had been taxed to the respondent on 30 May 2000 (Exhibit A, 25 October 2000).
The Tribunal adheres to the principles of procedural fairness in its decision-making process and it is a well-established principle of administrative law that there is a requirement for administrative decisions to be based on logically probative evidence. Moreover, the SRC Act places an obligation on the respondent to make determinations quickly in relation to claims and requests made to Comcare and in so doing to be "guided by equity, good conscience and the substantial merits of the case, without regard to technicalities" [subsections 69(1), 72(2) SRC Act].
In effect, this statutory obligation facilitates procedural fairness for the Tribunal's decision-making processes.
The above observations have been made to ensure all parties who appear in the Compensation jurisdiction of the Tribunal are aware of, and adhere to, the requirements of the Tribunal's General Practice Direction to avoid future potential constraints for the effective assessment of expert evidence by the Tribunal and other party(s), in terms of both time and costs.
For all of the above reasons the Tribunal finds:
(a)that the application for further payment of lump sump compensation for permanent impairment for adjustment disorder is disallowed; and
(b)that an aid or appliance that is reasonably required by the applicant is a "Laverne Victoria" lounge chair.
The decisions under review are affirmed.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Sarah Oliver
AssociateDate of Hearing 5 June 2002
Date of Decision 12 July 2002
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Messrs D'Arcys, Solicitors
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Messrs Dibbs Barker Gosling
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