Cartajena and Comcare (Compensation) [2019] AATA 1410 (24 June 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2016/4911 GENERAL DIVISION )
Re: Ana Cartajena Applicant
And: Comcare Respondent
DIRECTION
TRIBUNAL: Mr A. Maryniak QC, Member
DATE OF CORRIGENDUM: 23 July 2019
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
In the first line of the Decision, Application No. 2014/4911 is changed to Application No. 2016/4911.
In paragraph 83 (a) of the Reasons for Decision, Application No. 2014/4911 is changed to Application No. 2016/4911.
1.In Application No. 2014/4911 the reviewable decision is affirmed.
2.In Application No. 2017/4441 the reviewable decision is set aside and substituted with a decision that the Applicant is entitled to compensation under s 16 of the Act in respect of the treatment found to have been obtained in relation to the acute anxiety reaction and PTSD and reasonable for her to obtain, on and from 19 June 2017.
3.In Application No. 2017/4486 the reviewable decision is set aside and substituted with a decision that:
a.the acute anxiety reaction and PTSD has resulted in the Applicant sustaining a degree of permanent impairment of 10%;
b.the Applicant has no need for supervision and direction in activities of daily living; and
c.otherwise, the matter be remitted to the Respondent to assess the degree of suffering (if any), following further medical assessment so as to ensure that any such suffering as may be present relates to the accepted condition and not any pre-existing or subsequent developing condition.
4.Pursuant to s 67 of the SRC Act the Tribunal proposes to order that the Respondent pay one third of the Applicant’s costs in this matter. However, the Tribunal will consider any written submissions on costs (limited to 3 pages) lodged with the Tribunal within 28 days, prior to finalising the Costs Order.
COMPENSATION – acute anxiety reaction – post-traumatic stress disorder – whether the Applicant suffers an injury – where Respondent accepted liability under s 14 – where Respondent subsequently denied liability under s 16 – where Respondent denied liability under ss 24 and 27.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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This matter concerned an application for review of Comcare’s decisions regarding compensation for an applicant who had suffered an acute anxiety reaction and post-traumatic stress disorder (PTSD). Comcare had initially accepted liability for an acute anxiety reaction in 1998. Over two decades, the applicant received various forms of compensation, including medical expenses and incapacity payments. However, Comcare subsequently denied liability for certain treatments and conditions, including hospitalisation costs and ongoing psychological treatment, and later denied liability for permanent impairment and non-economic loss. The applicant sought review of these determinations.
The primary legal issues before the Tribunal were whether the applicant’s conditions, specifically the acute anxiety disorder and PTSD, were ongoing injuries or diseases for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and whether the effects of these conditions had ceased or continued. This determination was crucial for assessing the applicant's entitlement to ongoing compensation for treatment and for permanent impairment. The Tribunal also considered the applicant's credibility as a witness and the consistency and completeness of the medical evidence presented.
The Tribunal noted that the applicant was an unreliable witness, prone to self-serving and inconsistent evidence. The medical evidence was also found to be inconsistent and incomplete, with differing opinions from various medical practitioners regarding the applicant's diagnosis and the causal link between her conditions and her employment. Dr. Spence, for Comcare, opined that the applicant suffered from a chronic adjustment disorder with anxiety, exacerbated by intercurrent stressors unrelated to employment, rather than PTSD. Conversely, other medical professionals supported the applicant's claim for ongoing treatment and permanent impairment.
Ultimately, the Tribunal found that due to the inconsistent and incomplete nature of the medical evidence, it was appropriate to remit certain aspects of the matter back to Comcare. The Tribunal affirmed the reviewable decision in one application. In another application, the Tribunal set aside Comcare’s decision and substituted it with a decision that the applicant was entitled to compensation under s 16 of the Act for treatment related to her acute anxiety reaction and PTSD from 19 June 2017. In a third application, the Tribunal set aside Comcare’s decision regarding permanent impairment and substituted it with a finding of 10% permanent impairment, remitting the matter for further assessment of suffering and costs.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Comcare accepted liability under s 14 of the SRC Act for “acute anxiety reaction” on 14 August 1998, over 20 years ago.Background subsequent to Claim being accepted – post 14 August 1998 The Respondent provided the following summary of events relating to the Applicant after 14 August 1998.(a)Between 1 May 1998 and 15 August 2016, the Applicant received compensation for various medical expenses, including psychology sessions. The Applicant also received incapacity payments between 18 May 1998 and 26 February 2009 (incapacity payments ceased on that day because the Applicant turned 65 on 27 February 2009).(b)In the period following the Applicant’s claim, various matters ensued, such as an attempt to have the AFP investigate the threatening telephone calls, issues to do with transferring the Applicant’s personal items from Canberra to Melbourne, the Applicant receiving a mysterious package (that turned out to contain inconsequential items), amongst other such matters.(c)On 9 December 1999, the Department wrote to Ms Fraser (then psychologist for the Applicant) suggesting that the Applicant undertake a work trial with the Military Rehabilitation and Compensation Service, with a view to transferring to that Service. The Department also proposed that the Applicant undertake project duties rather than telephone work.(d)On 4 March 2000, Dr Morton wrote to Comcare expressing her opinion that the Applicant was capable of returning to work, but only to perform duties more appropriate to her qualifications, being a junior ASO1.(e)On 4 May 2001, Ms Fraser requested Comcare accept responsibility for payment of hospitalisation costs, she and the Applicant’s then general practitioner, Dr Barbara Burge, believing the Applicant to be at risk of self-harm. Comcare denied liability that same day, the delegate not being satisfied that the need for hospitalisation was related to the Applicant’s compensable condition.(f)On 26 May 2001, Dr Morton reported her view that the Applicant was now totally and permanently incapacitated for any kind of employment due to the severity of her condition. Dr Burge provided the same opinion on 30 May 2001; as did psychiatrist Dr Alec Dempster on 3 June 2001.(g)On 22 June 2001, Dr David Gras, occupational physician, examined the Applicant for the purposes of determining whether the Applicant met the grounds for retirement on the basis of medical invalidity. Dr Gras appeared to be of the view that the Applicant met those grounds. Dr Peter Smith, psychiatrist, was also of the view that the Applicant was not and would never be suitable for employment, and recommended that the invalidity claim be expedited in the interests of the Applicant’s psychological health.(h)The Applicant verbally requested Comcare accept liability for her hospitalisation on 9 October 2001. By letter dated 25 October 2001, the delegate informed the Applicant that she was again not satisfied that the need for hospitalisation was due to the Applicant’s compensable condition. The delegate found that:(i)the Applicant’s then-present symptoms were the result of undertaking the process to become retired on invalidity grounds and were hence not related to her compensable condition; and(ii)medical evidence provided by Dr Paul Kornan and Dr Gras did not support the requirement for hospitalisation. The delegate referred to Dr Kornan’s opinion in particular that the Applicant required ‘supportive treatment rather than some type of extensive treatment’. On that basis, the delegate determined that any suggestion for [the Applicant] to be hospitalised… cannot be justified or considered ‘reasonable treatment’ within the meaning of the Act in relation to [her] compensable condition. (i)Dr Ashok Mishra, psychiatrist, wrote to Comcare on 25 October 2001 in support of the Applicant’s claim for hospitalisation costs. However, on 4 February 2002, Comcare again rejected it on the basis that any need for hospitalisation was not a result of the Applicant’s compensable condition.(j)The Applicant retired on invalidity grounds on 8 May 2002.(k)The Applicant did not appear to claim compensation for psychological treatment between July 2002 and December 2006 and between March 2007 and July 2013.(l)On 11 February 2014, Comcare notified the Applicant of its intention to determine no present entitlement for psychological treatment under s 16 of the SRC Act. The delegate was not satisfied that the Applicant’s then-current psychological treatment was directly related to her compensable condition. The delegate was relying on the evidence of Dr Ruth McNair, general practitioner, and Ms Jacinta Kearney, treating psychologist, to the effect that the Applicant’s symptoms had been exacerbated due to her sister taking ill and the consequent need to use the telephone. These symptoms were reported to be consistent with PTSD, rather than acute anxiety reaction – the accepted condition.(m)Dr George Anasson, psychiatrist, wrote to Comcare in support of the Applicant’s continued claim on 1 May 2014, citing the link between PTSD and acute anxiety symptoms.(n)On 3 March 2015, following the provision of a medico-legal report by Dr Jennifer Majoor, psychiatrist, Comcare accepted liability under s 14 of the SRC Act for PTSD in addition to the previously accepted acute anxiety reaction.(o)On 28 April 2016, Comcare determined that it was not liable to pay compensation for psychology sessions under s 16 of the SRC Act. The delegate was not satisfied that work was a significant contributing factor towards the Applicant’s symptoms, the Applicant not having worked for some considerable time. The delegate noted that the Applicant had had 240 psychology sessions since her injury nearly 20 years earlier.(p)The Applicant requested reconsideration of this determination on 26 June 2016.(q)On 18 July 2016, Comcare affirmed its determination. The review officer was satisfied that it was reasonable to expect that after the 221 psychology sessions the Applicant had between August 1998 and July 2002, the Applicant would be able to self-manage her condition. The review officer was satisfied that this was demonstrated by the breaks in treatment between 2002 and 2006 and between 2007 and 2013.(r)Further, the Applicant’s most recent psychology treatment plan did not indicate how the stated goal of “reduction in anxiety and PTSD symptoms” could be achieved; nor did the plan adopt a self-management approach. Hence, the review officer was not satisfied that continued psychology treatment constituted “reasonable medical treatmen”’ under the Clinical Framework for Delivery of Health Services (Clinical Framework).(s)The Applicant by her solicitor lodged an application for review of this decision with the Tribunal on 13 September 2016.(t)The Applicant lodged a claim for compensation for permanent impairment and non-economic loss on 28 November 2016, in respect of a “psychological and/or psychiatric illness”. Dr Ruth McNair certified in the claim that the Applicant’s condition was permanent, required ongoing treatment, and would fluctuate over time.(u)Following the receipt of the report of Dr George Anasson and Dr Brendan Spence (see below), on 22 May 2017 Comcare advised the Applicant of its intention to determine “no present liability” and invited the Applicant to provide further information to support her claim. Comcare made a determination in accordance with its advised intention on 19 June 2017, finding that the Applicant is no longer entitled to compensation under s 16 of the SRC Act from 19 June 2017.(v)Also on 22 May 2017, Comcare denied liability to pay compensation for permanent impairment and non-economic loss on the basis that the degree of impairment was less than 10%.(w)Both the 22 May 2017 permanent impairment determination and the 19 June 2017 “no present liability” determination were the subject of a reviewable decision dated 13 July 2017. Both determinations were affirmed. The Applicant sought review of both these decisions by the Tribunal.Injury or Disease?
Evidence
Evidence Before The Court
In summary, the first issue to be determined, as agreed between the parties, is whether in respect of the acute anxiety disorder and the PTSD deemed under s 7(4) of the SRC Act to have occurred on 1 May 1998, either at 28 April 2016 or 19 June 2017, the effects of the disorder had ceased or whether they continued, (either as a disorder identified in those terms or as a causally consequential disorder). The determination of this issue requires the answer to a preliminary question of whether the disorders are an injury or a disease for the purposes of the SRC Act. For the reasons set out below, the Tribunal finds in favour of the Applicant on this first issue. In accordance with the Agreed Decision Tree provided to the Tribunal by the parties, various further issues requiring determination are dealt with below.Evidence Overview The Applicant gave oral evidence, was cross-examined by the Respondent, and questioned by the Tribunal; as were the following witnesses:(a)George Anasson, the Applicant’s psychiatrist;(b)Alla Demutska, the Applicant’s psychologist;(c)Ruth McNair, the Applicant’s G.P.;(d)Justin Nathan Lewis, consulting psychiatrist for the Applicant; and(e)Brendan John Spence, consulting psychiatrist for the Respondent. The documentary evidence before the Tribunal comprised documents provided under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) (the T documents and Supplementary T documents), and various other statements and medical reports.[1][1] Exhibits A1 to A5 and R1 to R5. The parties are at issue on aspects of onus and standard of proof. It is trite to say there is no formal legal onus appropriate to the Tribunal. However, the Respondent submits it remains for the person seeking benefits to satisfy the Tribunal of the relevant facts upon which such claimed entitlement depends. The Applicant disputes this. Consistent with the principle that this Tribunal is not bound by the rules of evidence, it may inform itself on any matter in such manner as it thinks appropriate: s 33(1)(c) of the AAT Act. There must be a factual foundation to support any decision of the Tribunal. Where a party wishes to assert and indeed establish a fact it is a matter of first principles that the party “… who asserts, or [s]he who seeks a result, must prove.”[2] Similarly, it would be very difficult for this Tribunal to decide that a person was permanently incapacitated for work, for example, without evidence from that person.[3][2] Re Martin and Commonwealth (1983) 5 ALD 277 at 287.[3] Re Andriopoulos and Secretary to the Department of Social Security (1984) 7 ALN N54. The relevant factual foundation must be made out during the hearing of the matter, upon the material before the Tribunal. The body of evidence before the Tribunal is to be assessed. Where a Tribunal is “not satisfied” of a matter, based upon the evidence of an applicant this does not mean that the Tribunal has placed an onus on that applicant. It is just a way of stating the conclusion that it has reached upon all the evidence before it.[4][4] SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321 at [22].
Decision
Reasons for decision
Due to the inconsistent and incomplete nature of the medical evidence before the Tribunal, largely due to the incomplete and inconsistent histories of relevant matters obtained by her treating and assessing practitioners, the Tribunal finds that it is appropriate that this aspect be remitted to the Respondent.DECISION Accordingly, the Tribunal orders as follows:(a)In Application No. 2014/4911 the reviewable decision is affirmed.(b)In Application No. 2017/4441 the reviewable decision is set aside and substituted with a decision that the Applicant is entitled to compensation under s 16 of the Act in respect of the treatment found to have been obtained in relation to the acute anxiety reaction and PTSD and reasonable for her to obtain, on and from 19 June 2017.(c)In Application No. 2017/4486 the reviewable decision is set aside and substituted with a decision that:(i)the acute anxiety reaction and PTSD has resulted in the Applicant sustaining a degree of permanent impairment of 10%;(ii)the Applicant has no need for supervision and direction in activities of daily living; and(iii)otherwise, the matter be remitted to the Respondent to assess the degree of suffering (if any), following further medical assessment so as to ensure that any such suffering as may be present relates to the accepted condition and not any pre-existing or subsequent developing condition.(d)Pursuant to s 67 of the SRC Act the Tribunal proposes to order that the Respondent pay one third of the Applicant’s costs in this matter. However, the Tribunal will consider any written submissions on costs (limited to 3 pages) lodged with the Tribunal within 28 days, prior to finalising the Costs Order.I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the Decision herewith of Mr A. Maryniak QC…………[sgd]…………………………………AssociateDated: 24 June 2019Dates of hearing 22-24 October 2018Date of Last Submission received 21 November 2018 Counsel for the Applicant Mr Mark CareySolicitors for the Applicant Arnold Thomas & BeckerCounsel for the Respondent Mr Michael SnellSolicitors for the Respondent Lemann Snell Lawyers
Ratio Decidendi
Legal Principle Established
Dr Spence was of the opinion that the Applicant, as at November 2017, suffered from an Adjustment Disorder with anxiety that is chronic in duration rather than PTSD. Her resumption of mental health treatment since 2009 has been “in the setting of a range of intercurrent stressors unrelated to employment”. He stated that she has “very strong views about events in employment and causation of her ongoing issues with her mental health that have been difficult to broaden, challenge and integrate in relation to other aspects of her developmental history and serious ongoing stressors in her life. She has remained in treatment with practitioners who have not chosen to particularly challenge her very narrow, defended concept and understanding of her current mental health issues. She has moved away from treating practitioners whom she felt did not confirm her view of her issues.”Consideration The Tribunal observed that the Applicant was an exceedingly poor witness prone to giving self serving evidence and accepts the Respondent’s submissions in this regard. She gave her evidence with little regard to the truth, tailoring her answers to her perceived interests, even where, upon occasion, her answer about specific factual matters had earlier been to directly contrary effect.[11][11] For example: Transcript 22 October p 61: at line 25 Did you tell her about your relationship with your mother?--- Yes. Very conflictive. And at line 40: I see. How was your relationship with your mother?---Warm. The Applicant avoided giving direct responses to questions that she was asked in cross- examination and would not volunteer matters against her perceived interests when asked to do so. Instead her approach to giving evidence when cross-examined was to await specific propositions derived from documents, to see what might be capable of being established independently, rather than candidly answering questions from her own recall. The Applicant nevertheless frequently denied any memory of matters that it is plain from clinical notes she had discussed with treating practitioners (even as recently as a few months ago), and which the Tribunal can readily infer were life events that were concerning and in some cases intensely distressing for her. It is evident from her answers to questions about why she told the Respondent certain things in correspondence about what was happening in her life,[12] that the Applicant was prepared to exaggerate in the interests of obtaining what she trenchantly regarded as her right. She conceded when pressed that she had been prepared to tailor her story to the Respondent to attempt to have her ‘right’ vindicated for example, in cross-examination:That seems to indicate, does it not, that you were suffering, in your words, "Severe and grim hardship upon your finances"?---At that time probably is an exaggeration, because it was a letter to the system.I see?---And (indistinct) for the system all the things in superlative, you don't go anywhere.[13][12] Exhibit A1.[13] Transcript 22 October page 37 at [10] - The Respondent submitted the indistinct word was “unless” which the Tribunal accepts.
