DTQR and Military Rehabilitation and Compensation Commission (Compensation)

DTQR and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 2451 (22 July 2020)
Division:VETERANS’ APPEALS DIVISION
File Numbers:2016/2597 and 2018/0399
Re:DTQR
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:22 July 2020
Place:Brisbane

I affirm the decisions under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) – Guide to the Assessment of the Degree of Permanent Impairment – claim for permanent impairment lump sum for psychiatric injury – undifferentiated somatoform disorder and major depressive disorder in partial remission – previously assessed at 10% WPI – whether increase of 10% or more from previous WPI assessment – activities of daily living – whether incapacity due to accepted conditions – decision under review affirmed
COMPENSATION – Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) – claim for compensation for alcohol use disorder and cannabis use disorder – whether contributed to, to a significant degree, by military service – whether medical treatment – policy – decision under review affirmed
LEGISLATION
Judiciary Act 1903 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation Act 1988 – Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth)
CASES
Comcare v Emery (1993) 32 ALD 147
Comcare v Lofts (2013) 217 FCR 220; [2013] FCA 1197
Comcare v O’Connell [2013] FCA 111
Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15
Farrell v Comcare (2015) 148 ALD 527; [2015] FCA 1337
Halliday and Comcare, Re (1994) 19 AAR 431
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
KTKY and Comcare, Re (2015) 149 ALD 151; [2015] AATA 309
O’Connell and Comcare, Re (2012) 131 ALD 400; [2012] AATA 532
Robson v Military Rehabilitation and Compensation Commission (2013) 214 FCR 1; [2013] FCAFC 101
Sadlo and Comcare, Re (2005) 88 ALD 169; [2005] AATA 1006
Whittaker v Comcare (1998) 86 FCR 532
YJTC and Australian Postal Corporation, Re (2014) 145 ALD 455; [2014] AATA 974
Zdziarski v Telstra Corporation Ltd (2015) 146 ALD 354; [2015] FCA 207
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
22 July 2020
INTRODUCTION

DTQR (“the applicant”) has made two claims for compensation with the Military Rehabilitation and Compensation Commission (“the respondent”) which are the subject of these proceedings. The first claim, the subject of application 2597 of 2016, is a claim for further compensation pursuant to sections 24, 25(4) and 27 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (“the DRC Act”) in respect of the applicant’s accepted “undifferentiated somatoform disorder” and “major depressive disorder in partial remission” conditions. The second claim, the subject of application 0399 of 2018, is a claim for compensation in respect of the applicant’s “alcohol use disorder” and “cannabis use disorder” conditions.
BACKGROUND
The applicant served in the Australian Army (“the Army”) from February 1995 until November 1997.
On 23 March 1995, the applicant suffered a “stress fracture of the left cuboid” injury in her left foot as a result of her military service. On 17 April 1995, the applicant suffered from “anterior knee joint pain” affecting her left knee as a result of an injury whilst participating in platoon activities at Kapooka during her military service. On 19 April 1995, the applicant first sought medical treatment for anterior knee joint pain affecting her right knee which she was determined to have suffered from that date as a result of her military service. The left foot conditions and the left and right knee conditions were accepted by the respondent as having been suffered by the applicant on the above dates in a determination dated 14 May 1997.[1]
[1] Exhibit A, T-Documents, T31, p. 257.
It is certainly apparent, on the material before the Tribunal, that the applicant and respondent have invested considerable time and effort in making and investigating claims for compensation in respect of the applicant’s conditions. The applicant has a number of accepted conditions including:
(a)Bilateral chondral damage to the patellae;
(b)Undifferentiated somatoform disorder;
(c)Major Depressive Disorder in partial remission;
(d)Irritable bowel with associated diverticular disease and haemorrhoids;
(e)Tension headaches;
(f)Vaginismus with sexual dysfunction; and
(g)Chronic Pain.
A summary of the applicant’s claim history which has culminated in the current claims is as follows.
On 2 February 1999, the respondent determined that the applicant suffered a 10% whole-person-impairment (“WPI”) as a result of her left and right knee conditions and agreed to pay compensation to the applicant in the amount of $11,262.52 under section 24 of the DRC Act for impairment and $12,951.90 under section 27 of the DRC Act for non-economic loss.
On 2 April 2002, Dr Judith H Gold, Psychiatrist, diagnosed the applicant with “Major Depressive Disorder with suicidal ideation” and “resultant Substance Abuse, multiple, with psychological dependence”.[2] As to Axis IV of the DSM-IV, Dr Gold remarked:
The stressor here appears to be the Major Depressive Disorder that developed following her knee injuries and resultant discharge from the military. The coping measure to deal with the knee injuries and loss of her career hopes was Alcohol Dependency followed by multiple Substance Abuse. These, in themselves, have become stressors in addition to the original stressor which was the physical injury to her knees.
[2] Exhibit A, T-Documents, T6, p. 45.
On 7 May 2002, the respondent accepted liability for “Major Depressive episode” as a sequela to her accepted bilateral knee conditions with a date of injury of 2 April 2002. The respondent, however, did not accept liability for “Substance Abuse” and remarked:[3]
Under the SRC Act, the decision to abuse drugs is considered to be one of personal choice and not a “requirement” of your military service (or in your case as a means to cope with your knee conditions). It follows therefore that there can be no Commonwealth liability to pay compensation for any consequent health effects of an employee’s decision to abuse drugs.
[3] Exhibit A, T-Documents, T34, p. 263.
On 4 December 2002, the applicant made a claim with the respondent for compensation for “Irritable Bowel Syndrome”.[4]
[4] Exhibit A, T-Documents, T35, p. 266.
On 20 February 2003, the respondent accepted liability for “Irritable bowel complicated by diverticular disease and haemorrhoids” (“gastrointestinal condition”).[5]
[5] Exhibit A, T-Documents, T39, p. 271.
On 21 March 2003, following receipt of correspondence from the applicant’s solicitor dated 28 February 2003,[6] 5 March 2003,[7] and two letters dated 20 March 2003,[8] regarding the applicant’s then straitened circumstances, the respondent wrote to the applicant to advise that a decision as to permanent impairment had been deferred pending a determination as to liability for the gastrointestinal condition.[9]
[6] Exhibit A, T-Documents, T40.
[7] Exhibit A, T-Documents, T41.
[8] Exhibit A, T-Documents, T42, T43.
[9] Exhibit A, T-Documents, T44, p. 278.
On 29 April 2003, the applicant’s solicitor wrote to the respondent to confirm that the respondent had advised the applicant that liability itself for the gastrointestinal condition was not being reviewed by the respondent, and that the applicant sought a determination from the respondent as to permanent impairment.[10]
[10] Exhibit A, T-Documents, T45.
On 30 April 2003, the respondent varied its determination dated 14 May 1997 to accept liability for “bilateral chondral damage to the patellae”, as opposed to anterior knee joint pain affecting each of the applicant’s left and right knees.[11] The respondent remarked that the original decision did not identify a diagnosable condition, but rather a symptom, and that the original determination needed to be corrected.
[11] Exhibit A, T-Documents, T46.
On 9 May 2003, the respondent, having varied its earlier determination as to the applicant’s knee conditions and having accepted liability for the gastrointestinal condition, considered that the applicant suffered from a combined WPI of 24%.[12] The respondent agreed to pay further compensation in the amount of $17,788.93 under section 24 of the DRC Act for impairment and $8,576.81 under section 27 of the DRC Act for non-economic loss. The respondent had not, at this juncture, assigned any degree of WPI for the applicant’s depressive condition.
[12] Exhibit A, T-Documents, T47.
On 9 May 2003, the applicant’s solicitor wrote to the respondent in regard to payments under section 25 of the DRC Act and a final Determination in regard to the applicant’s then present claim.[13]
[13] Exhibit A, T-Documents, T48.
On 16 May 2003, the applicant’s solicitor provided the respondent with a letter which enclosed a copy of the report of Dr L. Cameron, Psychiatrist, dated 6 May 2003.[14] The applicant’s solicitor observed that Dr Cameron “would appear to be suggesting that [the applicant] suffers from a Somatisation Disorder”. The applicant’s solicitor then remarked: “it may well be the case that liability may need to be extended to include a Somatisation Disorder, however this is a matter for the [respondent]”.[15]
[14] Exhibit A, T-Documents, T49.
[15] Exhibit A, T-Documents, T49, p. 290.
On 2 July 2003, the respondent confirmed receipt of the applicant’s claim “in respect of depressive condition”.[16]
[16] Exhibit A, T-Documents, T51.
On 5 June 2003, the applicant’s solicitor provided a letter to the respondent enclosing a copy of the report of Dr A Evans, Gynaecologist, dated 11 January 2003,[17] and which made a claim for compensation in respect of the applicant’s “sexual dysfunction” condition.[18] The applicant’s solicitor observed: “Dr. Evans has indicated that a causal relationship exists between [the applicant’s] original orthopaedic injuries, chronic pain syndrome, depression and prescribed medications” (emphasis in original).
[17] Exhibit A, T-Documents, T9.
[18] Exhibit A, T-Documents, T50.
On 21 July 2003, the applicant’s solicitor wrote to the respondent seeking that a determination be made in respect of the applicant’s claim for compensation for the applicant’s sexual dysfunction condition, and further seeking a copy of the report commissioned from Dr Lyndall White, Consultant Psychiatrist, by the respondent.[19] The applicant’s solicitor also wrote to the respondent in respect of the determination sought in respect of liability for the applicant’s sexual dysfunction condition on 7 August,[20] and again on 22 August 2003.[21]
[19] Exhibit A, T-Documents, T52.
[20] Exhibit A, T-Documents, T56.
[21] Exhibit A, T-Documents, T57.
On 21 July 2003, in a separate letter, the applicant’s solicitor requested that the respondent make the determination sought in respect of impairment from the applicant’s accepted depressive condition.[22] The applicant’s solicitor also wrote to the respondent in respect of the determination sought as to the applicant’s accepted depressive condition on 29 July 2003 and sought to be provided a copy of the report of Dr White,[23] and again on 7 August 2003.[24]
[22] Exhibit A, T-Documents, T53.
[23] Exhibit A, T-Documents, T54.
[24] Exhibit A, T-Documents, T55.
On 22 August 2003, as to the applicant’s claim in respect of the depressive condition, the respondent wrote to the applicant to advise her that, having received a report from Dr White dated 15 July 2003,[25] the respondent would seek a supplementary opinion from the applicant’s treating psychiatrist, Dr Cameron.[26] The respondent’s letter indicated that it enclosed therein for the applicant a copy of the report of Dr White dated 15 July 2003.
[25] Exhibit A, T-Documents, T11.
[26] Exhibit A, T-Documents, T58.
On 22 August 2003, the respondent wrote to Dr Cameron seeking a supplementary opinion and provided a list of questions.[27]
[27] Exhibit A, T-Documents, T58.
On 26 August 2003, the applicant’s solicitor wrote to the respondent to reiterate the urgency of the applicant’s claims and to raise concerns as to the respondent’s administration of the applicant’s claims.[28]
[28] Exhibit A, T-Documents, T59.
On 15 September 2003, the respondent wrote to the applicant, in regard to the applicant’s claim for the depressive condition, in order to advise her that a medical examination had been arranged with Dr White for the purposes of preparing a “full report” on her condition “from a specialist”.[29]
[29] Exhibit A, T-Documents, T60.
On 15 September 2003, the respondent wrote to Dr White seeking a further report and provided a list of questions.[30]
[30] Exhibit A, T-Documents, T61.
On 21 November 2003, Dr White gave her second report.[31] In her report, Dr White opined that the applicant “may have suffered from a Major Depressive Disorder in the past, which is now currently partially remitted…suffers from comorbid panic symptoms… and these panic symptoms should be considered to be part of her depressive disorder...”.[32] As to diagnoses, Dr White relevantly concluded that the applicant suffered from:[33]
Major Depressive Disorder, in partial remission
Undifferentiated Somatoform Disorder
Polysubstance Abuse, in current remission
Borderline personality traits
Sexual dysfunction (whilst Dr Amanda Evans reports [DTQR] as suffering from vaginismus, [DTQR] informed the examiner on this occasion that her sexual dysfunction is related to her knee pain and not directly to other sexual symptoms).
It is apparent from later correspondence that a copy of this report was provided to the applicant’s solicitor around or shortly before April 2004.[34]
[31] Exhibit A, T-Documents, T14.
[32] Exhibit A, T-Documents, T14, p. 111.
[33] Exhibit A, T-Documents, T14, p. 112.
[34] Exhibit A, T-Documents, T63.
On 15 December 2003, the respondent made several determinations in respect of the applicant’s claims.[35] The respondent relevantly determined that:
(h)The applicant suffered from undifferentiated somatoform disorder, which was accepted as contributed to, to a material degree, by the applicant’s military service under the DRC Act with date of injury of 21 November 2003;
(i)The applicant’s previously diagnosed major depressive disorder condition was varied to be “major depressive disorder in partial remission”; and
(j)The evidence failed to establish that the respondent is liable to pay compensation for the applicant’s sexual dysfunction condition.
[35] Exhibit A, T-Documents, T62.
As to the applicant’s sexual dysfunction condition, the respondent determined that:[36]
… on the balance of probabilities, [the applicant’s] claim for “sexual dysfunction” is more likely to be a temporary condition that relates to the “perceived harm and loss” [the applicant has] suffered as a result of [her] knee injury.
[36] Exhibit A, T-Documents, T62, p. 317.
On 13 April 2004, the applicant’s solicitor wrote to the respondent outlining a number of concerns with the respondent’s determination dated 15 December 2003.[37] The applicant’s solicitor observed that the delegate had refused conduct a review of their own motion, which is their right, and sought, short of formal review pursuant to section 62 of the DRC Act, review by the “Manager of the Liability Section of the Department”. The applicant’s solicitor also requested that an appointment be made for the applicant to be examined by a Neurologist in regard to a “Tension Headache Condition”. The applicant’s solicitor also observed that an assessment as to WPI had not been sought from, nor undertaken by, Dr White and requested that this be done. Further correspondence to this effect was sent to the respondent on 25 June 2004, together with a statutory declaration of the applicant’s “personal carer”, dated 22 June 2004 which provided evidence as to the applicant’s living situation.[38] It is the case that, in documents produced some years later, that the applicant’s personal carer is described as the applicant’s partner (“the applicant’s partner”).
[37] Exhibit A, T-Documents, T63.
[38] Exhibit A, T-Documents, T66.
On 13 July 2004, the applicant’s solicitor wrote to the respondent addressing a number of matters.[39] In particular, the applicant’s solicitor took issue with an assessment by Dr White dated 4 June 2004 in which Dr White assessed the applicant as having a WPI of 10% under “Comcare Table 5.1” for the applicant’s psychiatric condition, which assessment the applicant’s solicitor suggested had been undertaken in reliance upon clinical notes made by Dr White in October 2003. The applicant’s solicitor raised the possibility that Dr White had not had the benefit of reviewing the statutory declaration of the applicant’s partner dated 22 June 2004. The applicant’s solicitor contended, in light of the assessment by Dr Cameron, that the applicant’s WPI in regard to her psychiatric condition “is either 15% or 20%”.[40]
[39] Exhibit A, T-Documents, T67.
[40] Exhibit A, T-Documents, T67, p. 335.
On 15 July 2004, the applicant sought reconsideration of the respondent’s determination dated 15 December 2003, pursuant to section 62 of the DRC Act, seeking acceptance by the respondent of liability for the applicant’s sexual dysfunction condition.[41]
[41] Exhibit A, T-Documents, T69.
On 19 July 2004, the respondent wrote to Dr White, having regard to the applicant’s solicitor’s concerns regarding her WPI rating, seeking an opinion as to whether a re-examination was necessary.[42]
[42] Exhibit A, T-Documents, T70.
On 18 August 2004, the respondent varied its earlier determination dated 15 December 2003 to accept liability for the applicant’s “vaginismus” condition “resulting from [her] accepted bilateral knee injury and sequelae psychiatric and gastrointestinal conditions”.[43]
[43] Exhibit A, T-Documents, T71.
On 19 November 2004, the respondent accepted liability for the applicant’s “tension headache condition”.[44]
[44] Exhibit A, T-Documents, T73.
On 15 March 2005, the respondent agreed to reimburse the applicants for the costs she incurred in obtaining the report of Dr Cameron.[45]
[45] Exhibit A, T-Documents, T72.
On 1 March 2005, the applicant’s solicitor wrote to the respondent requesting copies of reports resulting from examination of the applicant by Dr G Apel, Psychiatrist, on 21 December 2004 and by Dr Evans on 1 December 2004 for the purposes of assessing her WPI in respect of her depressive condition and vaginismus conditions respectively.[46] By that letter, the applicant’s solicitor also sought a copy of a report which had been, or was to be, sought by the respondent from Dr Michael Walsh, Neurologist, in which an assessment of her WPI in respect of her tension headache condition had been, or would be, made.
[46] Exhibit A, T-Documents, T73.
On 24 June 2005, the respondent made a determination as to the applicant’s claim for a permanent impairment lump sum payment for her major depressive episode in partial remission condition.[47] The respondent deferred assessment of lump sum compensation until June 2006. By way of conclusion, the delegate remarked:
On the basis of the available evidence, it is evident that all rehabilitative treatment in relation to your depression condition has not been taken and the degree of whole person impairment has not stabilised at 10% or more. I have therefore deferred a decision on your case [until] June 2006.
In making the determination, the delegate was not satisfied as to the permanence of the impairment of the condition, having regard in particular to the opinion of Dr White that the applicant’s substance abuse was causing the WPI to be assessed at a higher level and that, if there applicant were free of substance abuse, her WPI would reduce from 20% to 10%. The delegate also referred to the opinion of Dr Apel that the impairment from the applicant’s depressive condition was not permanent and was likely to reduce from 10% to 5%.
[47] Exhibit A, T-Documents, T74.

On 24 June 2005, the respondent also made a determination as to the applicant’s claim for a permanent impairment lump sum payment for her tension headaches condition.[48] The respondent deferred its decision until June 2006 on the basis that it was “evident that all rehabilitative treatment in relation to [the applicant’s] headache condition has not been undertaken and the degree of whole person impairment has not stabilised at 10% or more”. The respondent had regard in particular to the opinion of Dr Walsh in his report dated 7 April 2005 in which he opined:
This is though not necessarily a permanent condition, as the headache, being dependent on the mood/somatoform disorder, may well settle remarkably and come under excellent control, if not cure, if the mood somatoform disorder is adequately controlled… In my opinion further appropriate treatment may reduce the permanent impairment level…
[48] Exhibit A, T-Documents, T75.
On 28 June 2005, the respondent made a determination as to the applicant’s claim for a permanent impairment lump sum payment for her vaginismus with sexual dysfunction condition.[49] The respondent also deferred its decision in respect of this condition until June 2006 for the same reason as it deferred its decision in respect of the tension headaches condition.
[49] Exhibit A, T-Documents, T76.
In late June 2007, the respondent arranged for the applicant to be assessed by Dr Phillip Morris, Psychiatrist.[50] On 25 July 2007, Dr Morris gave his report.[51]
[50] Exhibit A, T-Documents, T77-T78.
[51] Exhibit A, T-Documents, T26.
On 19 July 2007, the applicant’s solicitor wrote to the respondent to request a copy of the reports of Dr Morris and Dr Alison Reid, Neurologist, who also assessed the applicant in June 2007. The applicant’s solicitor also addressed a further assessment and report the respondent sought under section 57 of the DRC Act in respect of the applicant’s vaginismus condition, and sought determinations in respect of the applicant’s deferred permanent impairment lump sum payment claims.
On 7 August 2007, as to the applicant’s claim for permanent impairment lump sum payment in respect of her depressive condition, the respondent again determined that “all reasonable rehabilitative treatment has not been undertaken”.[52] The respondent also extended liability to include the applicant’s “chronic pain disorder” condition, secondary to her accepted knee condition and “psychological condition”. The respondent had regard to the opinion of Dr Morris and remarked, in regard to treatment that Dr Morris had recommended for her depressive condition, that “As [the applicant’s] major depressive condition has been accepted by Military Compensation, this office can pay for all reasonable ongoing medical treatment”.
[52] Exhibit A, T-Documents, T80.
On 28 September 2007, the applicant’s solicitor wrote to the respondent in regard to the applicant’s claim for permanent impairment lump sum payment in respect of her depressive condition.[53] The applicant’s solicitor requested further consideration of the respondent’s determination and drew the respondent’s attention to the treatment that the applicant had undergone by that stage including psychological counselling sessions and medication.
[53] Exhibit A, T-Documents, T81.
On 12 October 2007, the respondent made a determination in respect of the applicant’s permanent impairment lump sum payment claims in respect of her depressive condition for psychiatric injury and headaches, “leaving unsettled until later date the headache claim”.[54] The respondent, however, by a letter of the same date, advised the applicant that it would revoke determination on the basis that “the headache and psychiatric illnesses are so bound up together that they must not be separated as in the Canute case”.
[54] Exhibit A, T-Documents, T82.
On 15 October 2007, the respondent made a determination in respect of the applicant’s claims for permanent impairment lump sum payment in respect of her “Major Depressive Disorder, Chronic Pain Disorder, and Undifferentiated Somatoform Disorder and Tension Headache” conditions.[55] The respondent awarded the applicant a 19% WPI in respect of those conditions and agreed to pay to the applicant compensation in the amount of $27,742.99 under section 24 of the DRC Act for impairment, together with $25,644.12 under section 27 of the DRC Act for non-economic loss.
[55] Exhibit A, T-Documents, T83.
On 7 February 2008, the respondent wrote to the applicant in respect of her claim for permanent impairment lump sum payment in respect of her vaginismus condition.[56] The respondent advised that it had encountered difficulties obtaining the further gynaecological report it had foreshadowed in mid-2007 as Dr Evans had indicated her opinion had not changed since her previous reports. The respondent remarked that, while Dr Evans had indicated the vaginismus condition should attract a 25% WPI rating, the respondent had reservations whether all reasonable treatment options had been explored. The respondent also observed from the report of Dr Reid of 25 June 2007 that the applicant had given birth in April 2007 “with epidural anaesthesia and normal vaginal delivery” which the respondent considered cast doubt over the applicant’s satisfaction of the criteria in Table 11.2 at the 25% level. The delegate in that instance offered to reconsider the claim at a 10% WPI level.
[56] Exhibit A, T-Documents, T84.
On 27 February 2008, the applicant’s solicitor wrote to the respondent to confirm the applicant would agree to the claim for permanent impairment lump sum payment in respect of her vaginismus condition being assessed at 10%, and indicated that the applicant’s solicitor had made contact with Dr Evans who would write to the respondent.[57] The letter also enclosed a completed non-economic loss questionnaire in respect of the applicant’s sexual dysfunction/vaginismus condition.
[57] Exhibit A, T-Documents, T85.
On 29 February 2008, the respondent made a determination as to the applicant’s claim for permanent impairment lump sum payment in respect of her vaginismus condition.[58] The respondent assessed the applicant’s WPI for the condition as 10% and agreed to pay compensation in the amount of $14,601.57 under section 24 of the DRC Act for impairment and $9,125.90 under section 27 of the DRC Act for non-economic loss.
[58] Exhibit A, T-Documents, T86.
On 19 November 2014, the applicant submitted further non-economic loss questionnaires in respect of her knee conditions as part of a claim for reassessment of permanent impairment under section 24 and section 27 of the DRC Act.[59]
[59] Exhibit A, T-Documents, T90-T91.
On 10 December 2014, the applicant’s solicitor wrote to the respondent in respect of the reassessment claim for the applicant’s knee conditions and requested that the respondent make a determination as soon as possible, having regard to the applicant’s “precarious psychiatric health”.[60] The applicant’s solicitor observed that the respondent sought to obtain a supplementary report from Dr P Sharwood, Orthopaedic Surgeon.
[60] Exhibit A, T-Documents, T92.
On 25 March 2015, following receipt of the supplementary report of Dr Sharwood, the respondent made a determination in respect of the applicant’s claim for reassessment of permanent impairment in regard to her right knee condition.[61] The respondent increased its assessment of the WPI caused by the applicant’s right knee condition to 20%.
[61] Exhibit A, T-Documents, T94.
On 17 April 2015, the respondent made a determination respect of the applicant’s claim for reassessment of permanent impairment in regard to her left knee condition.[62] The respondent also increased its assessment of the applicant’s left knee condition to 20%.
[62] Exhibit A, T-Documents, T95.
THE PRESENT CLAIMS
Application 2597 of 2016: claim for further compensation pursuant to sections 24, 25(4) and 27 of the DRC Act in respect of the applicant’s accepted “undifferentiated somatoform disorder” and “major depressive disorder in partial remission” conditions
On 15 June 2015, the applicant’s solicitor wrote to the respondent to formally apply for reassessment of the applicant’s permanent impairment in regard to her somatoform disorder and major depressive disorder conditions.[63] The applicant’s solicitor indicated that the applicant obtained a report dated 14 December 2014 from Dr Michael Likely, Psychiatrist, who had been treating the applicant since 2010.[64] The applicant’s solicitor enclosed inter alia a further non-economic loss questionnaire in respect of her somatoform disorder and major depression conditions dated 5 June 2015.[65] Within this application, the applicant also submitted that:
(k)Since 2007, her accepted psychiatric injury has deteriorated, as has her accepted orthopaedic injuries;
(l)At the time of the respondent’s determination as to the psychiatric injury in 2007 when a 10% impairment was conceded, and assessment of 20% was available to the respondent;
(m)Even in 2003, the applicant had reported experiencing suicidal ideation and was hospitalised for this in around 2005;
(n)Over the last several years, she has reported recurrent episodes of self-harm involving cutting her upper limbs; and
(o)The applicant’s partner, who is the father of her children, attends to most activities of daily living in the domestic environment.
[63] Exhibit A, T-Documents, T97.
[64] Exhibit A, T-Documents, T97, p. 494.
[65] Exhibit A, T-Documents, T96.
The applicant made further procedural submissions including that:
(a)The respondent should not make a determination that is diametrically opposed to an existing specialist medical opinion without calling for a clarifying or supplementary report from the treating psychiatrist or obtaining a countervailing specialist opinion;
(b)The respondent should comply with its second opinion protocol where necessary and afford an expert an opportunity to provide a supplementary opinion where difficulties arise;
(c)The respondent must observe the model litigant policy and ensure consistency in the decision-making process;
(d)The respondent must have regard to section 69 and section 72 of the DRC Act;
(e)The respondent is not bound by the rules of evidence; and
(f)Policy does not supersede the provisions of the DRC Act.
On 21 July 2015, the respondent sought a supplementary report from Dr Likely.[66]
[66] Exhibit A, T-Documents, T98.
Between 27 July 2015 and 28 August 2015, the applicant sent a number of letters to the respondent in which the applicant raised concerns with the schedule of questions posed to Dr Likely by the respondent, particularly with regards to activities of daily living.[67]
[67] Exhibit A, T-Documents, T99-T107
On 6 August 2015, Dr Likely gave his supplementary report.[68] It is apparent from Dr Likely’s report that the schedule of questions to which he responded remained unchanged from that which he was provided on 21 July 2015.
[68] Exhibit A, T-Documents, T28.
On 28 August 2015, the respondent made a determination as to the applicant’s application for reassessment of permanent impairment in respect of her accepted Somatoform Disorder and Major Depressive Disorder.[69] The respondent determined that no payment could be made under section 24 and section 27 of the DRC Act on the basis that the applicant did not suffer a level of impairment which equated to 20% or greater under the Guide.
[69] Exhibit A, T-Documents, T108.
On 4 September 2015, the applicant’s solicitor sent a letter to the respondent outlining a number of concerns with the respondent’s determination dated 28 August 2015.[70] The applicant’s solicitor reiterated concerns with the schedule of questions posed to Dr Likely and took issue with the respondent’s focus on “supervision” and “direction” in its determination. The applicant’s solicitor sought further review at that level, short of seeking further review under section 62 of the DRC Act.
[70] Exhibit A, T-Documents, T109.
On 8 September 2015, following receipt of the supplementary report of Dr Likely dated 6 August 2015, the applicant’s solicitor wrote a further letter to the respondent in regard to its 28 August 2015 determination.[71] The applicant’s solicitor submitted:
The delegate incorrectly and illogically asserts that no one appears to provide supervision and direction in regard to activities of daily living in relation to which [the applicant] is fundamentally impaired and affected.
Of course, it is [the applicant’s partner] who provides the majority of supervision and direction at the coalface, namely in the home. However, Dr Michael Likely performs a similar task, as regards supervision as confirmed in his two reports.
[71] Exhibit A, T-Documents, T110.
On 23 October 2015, the applicant’s solicitor wrote to the respondent requesting that a principal legal officer of the respondent investigate the 28 August 2015 determination in the matter and raised concerns with potential delays in seeking reconsideration pursuant to section 62 of the DRC Act.[72]
[72] Exhibit A, T-Documents, T111.
On 13 November 2015, the respondent confirmed receipt of the applicant’s letter dated 23 October 2015 and advised the applicant that the letter dated 23 October 2015 was acknowledged as a request for reconsideration of the decision of 28 August 2015.[73] The respondent advised the applicant that it would arrange an appointment with an independent psychiatrist as part of its reconsideration.
[73] Exhibit A, T-Documents, T112.
On 17 November 2015, the respondent wrote to the applicant to advise her that it proposed to arrange an assessment of the applicant on 16 December 2015 with Dr R Caniato, Psychiatrist.[74]
[74] Exhibit A, T-Documents, T113.
On 26 November 2015, the applicant’s solicitor wrote to the respondent in regard to the reconsideration of the 28 August 2015 decision.[75] As to the 28 August 2015 determination, the applicant’s solicitor remarked:
… the Permanent Impairment Determination dated 28^th August 2015 does not apply a beneficial interpretation, has failed to apply the proper evidential standard of proof, has failed to properly draw justifiable conclusions and inferences from Dr Likely’s report regarding out client’s need for supervision and direction in the activities of daily living, and more fundamentally the decision is at variance with the provisions of the [DRC Act] and the application of the Guide to the Assessment of the Degree of Permanent Impairment, and more seriously discloses the manufacture of tables and concepts in the letters of instruction to Dr Likely which create an artificial non-statutory burden and obstruction to claims such as [the applicant’s].
[75] Exhibit A, T-Documents, T116.
On 3 March 2016, the applicant’s solicitor wrote to the respondent in regard to the reconsideration of the respondent’s decision not to award further compensation for permanent impairment arising from the applicant’s somatoform disorder and depressive conditions.[76] The applicant’s solicitor confirmed his understanding that the applicant attended upon Dr Caniato on 6 January 2016; the applicant’s solicitor requested a copy of the resulting report. The applicant’s solicitor reiterated a request for the respondent to prioritise and expedite the reconsideration application.
[76] Exhibit A, T-Documents, T117.
On 18 March 2016, the respondent made a determination as to the applicant’s claim for further compensation for permanent impairment arising from the applicant’s somatoform disorder and depressive conditions.[77] The respondent affirmed its earlier decision dated 28 August 2015 to refuse to award additional compensation to the applicant under sections 24, 25(4) and 27 of the DRC Act in respect of the applicant’s undifferentiated somatoform disorder and major depressive disorder in partial remission. The respondent made reference to the report given by Dr Caniato. This decision is the decision under review in application 2597 of 2016.
[77] Exhibit A, T-Documents, T118.
As to the inclusion of expert psychiatric opinion regarding supervision and direction of the applicant in activities of daily living, the respondent remarked in its reasoning:
For impairments higher than 10% (and less than 50%) under Table 5.1, there is a requirement that no only one or more of the descriptors are to be met, but that as a result of the psychiatric condition and not any physical conditions, that there is a need for supervision and direction in activities of daily living.[78]
The respondent further remarked:
… the Guide under the SRCA has two parts, Part 1 being for civilian employees’ claims and Part 2 for military claims. The more detailed list and definitions are from Part 1 of the Guide and are provided as notes for Table 5.1 of the Guide. The additional details assist the delegate in having as much information as possible when making a decision. I note that the decision under review refers to both the expanded list and list as noted under Part 2 of the Guide for the military. I have no issue with the delegate’s use of information as it is still applicable for Table 5.1 of the Guide under SRCA.
At this stage the opinion by Dr Caniato is the only medical evidence addressing the criteria prescribed by Table 5.1 based on a recent assessment, noting that [the applicant] has not been seen by Dr Likely since 9 December 2014. There is no evidence that [the applicant’s] partner or another person, remains at home to supervise and direct [the applicant]. Based on the available evidence and the legislation, I am not satisfied that [the applicant] meets the criteria for 20% WPI or greater under Table 5.1 of the Guide at this time.[79]
Application 0399 of 2018: claim for compensation in respect of the applicant’s “alcohol use disorder” and “cannabis use disorder” conditions
[78] Exhibit A, T-Documents, T118, p. 569.
[79] Exhibit A, T-Documents, T118, pp. 569-570.
On 5 July 2017, the applicant’s solicitor wrote to the respondent to request an extension of the respondent’s liability to pay compensation to the applicant under the DRC Act for the applicant’s claimed “alcohol use disorder” and “cannabis use disorder” conditions as sequelae to her accepted psychiatric conditions.[80] The applicant observed that the claimed conditions had been diagnosed by Dr Likely and enclosed a report given by Dr Likely dated 21 June 2017.[81] The applicant’s solicitor contended:
With an inability to utilise normal opioid analgesia and anti-inflammatory medication, [the applicant] found an alternative regime of treatment to alleviate pain and depression and that alternative regime of treatment by way of self medication was alcohol and cannabis. That, in effect, is [the applicant’s] contention regarding this matter of alcohol use disorder, and, cannabis use disorder.[82]
The applicant’s solicitor further contended that:
…there exists an unbroken chain of causation between the two diagnosed conditions and [the applicant’s] previously accepted bilateral knee conditions and secondary somatoform disorder and major depressive disorder.
[80] Exhibit B, Supplementary T-Documents, T134.
[81] Exhibit B, Supplementary T-Documents, T133.
[82] Exhibit B, Supplementary T-Documents, T134, p. 134.
The applicant’s solicitor also drew the respondent’s attention to its determination dated 7 May 2002[83] in which the respondent refused to accept liability for the applicant’s “substance abuse” condition as it was a “personal choice”.[84] As to this earlier determination, the applicant’s solicitor remarked that the respondent, the courts, and the Repatriation Commission had “moved on from this nonsensical approach, and this decision might now clearly be seen as, ‘bad decision making’”. The applicant’s solicitor also contended that the 7 May 2002 determination as to substance abuse was “wrong at Law”, “not a matter requested by [the applicant] to be investigated”, “unilateral”, and “superfluous to function”. The applicant’s solicitor made a number of submissions as to the refusal to accept the substance abuse condition being based only on “policy” and having no basis in statute.
[83] Exhibit A, T-Documents, T34.
[84] Exhibit B, Supplementary T-Documents, T134, p. 135.

On 7 September 2017,[85] and on 5 October 2017,[86] the applicant’s solicitor wrote to the respondent to request confirmation from the respondent that the claim had been received, to enquire as to the progress of the claim, and to confirm the identity of the delegate investigating the claim.
[85] Exhibit B, Supplementary T-Documents, T135.
[86] Exhibit B, Supplementary T-Documents, T137.
On 1 November 2017, the respondent made a decision as to the applicant’s claim for compensation under the DRC Act for the applicant’s alcohol use disorder and cannabis use disorder conditions.[87] The respondent made a decision to reject the applicant’s claim for liability in respect of the alcohol and cannabis conditions. On the basis of “differential diagnostic labelling” the respondent considered that the present claim was distinguishable from the subject of the 7 May 2002 determination and therefore could be “considered at the primary level”. In the course of its reasoning, the respondent remarked:
[87] Exhibit B, Supplementary T-Documents, T138.
The diagnosis of alcohol use disorder and cannabis use disorder was confirmed in the report from Consultant Psychiatrist Dr Michael Likely dated the 21^st June 2017, the date of report reflects the 'date of effect' being the earliest confirmed diagnosis of the above conditions.
Dr Likely confirms you have demonstrated self-medicating your chronic pain with the maladaptive use of cannabis and depression with the maladaptive use of alcohol. However, the medical opinion also highlights that alcohol is a significant depressogenic and there are a number of disorders which can arise from cannabis use.
The submission clearly identifies that your alcohol and cannabis use is in the context of self-medicating symptoms of your compensable conditions.
Additionally, this self-management of symptoms is noted to have occurred on a background of adverse side effects from conventional pharmaceutical treatment, namely the use of analgesics, anti-inflammatories and anti-depressants. It is clearly described in the submission of the claim as a conscious choice to self-manage your compensable conditions outside the confines of medical instructions.
There is no evidence, by way of your claimed contention or medical opinion which shows your alcohol and cannabis use (to the point of disorder) is a direct consequence of impairment caused by your psychiatric conditions and as such, the nexus of your claim is reliant on the provisions of Section 4(3) being met.
The Act allows for compensation to be paid in instances where a medical condition arises from the medical treatment of a compensable condition. This causal chain is shown when Section 4(3) of the SRCA 1988 is satisfied.
For the purpose of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
a)Compensation is payable under the Act in respect of the injury for which the medical treatment was obtained; and
b)It was reasonable for the employee to have obtained that medical in the circumstances.
I am not satisfied that an unbroken causal chain to your employment has been shown because the use of alcohol and cannabis is not be deemed to be 'reasonable' as it was not advised, prescribed or ordered by a medical practitioner (Thiele vs Commcare) [sic].
On 16 November 2017, the applicant’s solicitor wrote to the respondent to request reconsideration under section 62 of the DRC Act of the respondent’s determination that the applicant’s military service has not contributed in a significant degree to the development of the applicant’s alcohol and cannabis use disorder.[88] The applicant’s solicitor remarked that it was the applicant’s view that “this decision is based on nothing more than the Department’s policy wish to defeat this claim for fear of creating unwelcome precedent”. As to the respondent’s reliance upon subsection 4(3) of the DRC Act, the applicant’s contended:
It is the case that [the applicant] uses anti-depressant medication to treat her accepted depressive disorder and she has also utilised pain medications over the years to treat her accepted chronic pain condition. It is not the case that she uses alcohol or cannabis rather than other than prescribed anti-depressants or pain medication. In effect, it could be said that the cannabis and alcohol are an adjunct.[89]
The applicant further contended:
… the two diagnosed conditions, mainly alcohol use disorder and cannabis use disorder, were not in place before [the applicant’s] enlistment into the Australian Regular Army, and indeed accurately, it can be stated that these conditions only emerged after [the applicant] suffered orthopaedic injuries, giving rise to chronic pain and long-entrenched and serious major depressive disorder which is largely non-reactive to prescribed medications. As such, there exists an unbroken chain of causation linking a present diagnosis to her accepted conditions and hence to her previous army employment. (emphasis in original)
[88] Exhibit B, Supplementary T-Documents, T139.
[89] Exhibit B, Supplementary T-Documents, T139, p. 164.
On 3 January 2018, the respondent made a determination as to the applicant’s request for reconsideration of the respondent’s decision that the applicant’s military service has not contributed in a significant degree to the development of the applicant’s alcohol and cannabis use disorders.[90] The respondent affirmed its earlier determination dated 1 November 2017. This decision is the decision under review in application 0399 of 2018.
[90] Exhibit B, Supplementary T-Documents, T144.
In the course of its reasoning, the respondent remarked that:
I have carefully considered all of the available evidence and have been unable to confirm your solicitor’s statement that you have been advised by your doctors to cease pain medication because of your gastrointestinal condition.
On the contrary I note the opinion of Dr Caniato dated 28 January 2016 was that you had been consulting with psychiatrist Dr Likely for three years prior, where pain medications had been prescribed and you felt the medications had helped.
… I note the most recent report from a gastroenterologist available to me is the report of Dr Owen Harris, dated 11 November 2002. Dr Harris opines that your gastro-intestinal symptoms are triggered by depression and aggravated by the analgesics and other medication used to control your chronic pain. He also states that your accepted irritable bowel condition is permanent in nature stating that the long term need for antidepressants and the long term need for analgesics ensures this. However, he does not advise that you should cease taking prescription and over the counter medication to treat your major depression and chronic pain disorder.
…
Based on specialist medical opinion… I am satisfied the use of alcohol and cannabis is not considered reasonable medical treatment for your conditions. Whilst I acknowledge the opinion of Dr Harris that medication triggers symptoms of irritable bowel syndrome, I am not satisfied the evidence establishes that medical professionals advised you to cease medication because of the effect of the medication on your gastrointestinal conditions. On the contrary, the specialist medical advise is that the use of substances, other than prescribed medications and conventional therapies, can be extremely harmful.
…
The evidence before me notes that you chose to self-medicate with alcohol and cannabis despite the direct advice by medical professionals not to treat your conditions by this method.
The evidence indicates that you exercised free will in the consumption of alcohol and illicit drugs. Accordingly, I consider based on the evidence that the claim has been addressed correctly. I have therefore affirmed the determination under review.
This decision is the decision under review in application 0399 of 2018.
LEGISLATIVE FRAMEWORK
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
The claims which are the subject of these proceedings were commenced pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) prior to 12 October 2017, being lodged on 15 June 2015 and 5 July 2017 respectively. By virtue of the operation of item 64 in Schedule 1 of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth), these claims are now taken to have been begun under the DRC Act and its corresponding provisions.
Subsection 4(1) of the DRC Act contains a number of definitions of which the following are relevant to the present matters:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether or sudden onset or gradual development).
…
approved guide means:
(a)the documents, prepared by the MRCC in accordance with section 28 under the title “Guide to the Assessment of the Degree of Permanent Impairment”, that has been approved by the Minister and is for the time being in force; and
(b)if an instrument varying the document has been approved by the Minister—that document so varied.
…
medical treatment means:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
(i)any other form of treatment that is prescribed for the purposes of this definition.
Injuries or ailments resulting from medical treatment are addressed in subsection 4(3) of the DRC Act which provides:
(3)For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a)compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b)it was reasonable for the employee to have obtained that medical treatment in the circumstances.
Subsection 5A(1) of the DRC Act provides the definition of an “injury”:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B the DRC Act provides the definition of a “disease”:
5B      Definition of disease
(1)       In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)       In this Act:
significant degree means a degree that is substantially more than material.
As to the date on which an injury or disease occurs, subsection 7(4) of the DRC Act provides:
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or the impairment of the employee;
whichever happens first.
The requirement for the respondent to pay compensation in respect of an injury is found in subsection 14(1) of the DRC Act which provides:
14Compensation for injuries
(1)Subject to this Part, the Commonwealth is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment…
Compensation for permanent impairment is addressed in section 24 of the DRC Act which relevantly provides:
24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, the Commonwealth is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, the MRCC 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 rehabilitee treatment for the impairment; and
(d)any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by the MRCC under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by the MRCC shall be an amount that is the same percentage of the maximum amount as the percentage determined by the MRCC under subsection (5).
(5)The MRCC shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)the MRCC determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
(9)For the purposes of this section, the maximum amount is $80,000.
Subsection 25(4) of the DRC Act deals with subsequent increases in impairment following compensation payments and provides:
(4)Where the MRCC has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.
As to non-economic loss, section 27 of the DRC Act relevantly provides:
27Compensation for non-economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, the Commonwealth is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.
(2)The amount of compensation is an amount assessed by the MRCC under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by the MRCC under section 24 to be the degree of impairment of the employee; and
B is the percentage determined by the MRCC under the approved Guide to be the degree of non-economic loss suffered by the employee.
…
Section 28 of the DRC Act relevantly provides:
28 Approved Guide
(1)The MRCC may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by reference to which the degree of non‑economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c)methods by which the degree of permanent impairment and the degree of non‑economic loss, as determined under those criteria, shall be expressed as a percentage.
…
(3A)A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, is a legislative instrument made by the Minister on the day on which the Guide, or variation or revocation, is approved by the Minister.
(4)Where the MRCC or the Administrative Appeals Tribunal is required to assess or re‑assess, or review the assessment or re‑assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non‑economic loss suffered by an employee, the provisions of the approved Guide are binding on the MRCC or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re‑assessment or review, and the assessment, re‑assessment or review shall be made under the relevant provisions of the approved Guide.
(5)The percentage of permanent impairment or non‑economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
…
The Guide
Claims for payment of compensation for permanent impairment are assessed in accordance with the “Guide to the Assessment of the Degree of Permanent Impairment” (“the Guide”).[91] This is an approved guide within the meaning of section 28 of the DRC Act. The Guide addresses a number of matters in respect of the assessment of WPI and contains tables which establish the levels of impairments with reference to descriptors of the impacts that conditions have. Of particular relevance are the tables relating to psychiatric conditions contained within chapter 5 of the Guide. It is with reference to these tables that medical opinion should be based with respect to assessment of WPI amounts.
EVIDENCE
Applicant’s evidence
[91] Safety, Rehabilitation and Compensation Act 1988 – Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1.
Statements
The applicant provided a statement dated 26 June 2016.[92] In that statement the applicant stated that she believes she has a “profound need for supervision and direction to enable me to cope with normal daily functioning”. She stated that she struggles to cope with basic activities of daily living, and it is totally incorrect to say that she is independent in this respect.
[92] Exhibit B, Supplementary T-Documents, T119.
The applicant stated that she neglects her self-care, personal hygiene, appearance and diet. She is excessively socially withdrawn, and only leaves the house to transport her children to and from school and to buy groceries. She noted that these tasks still cause her difficulty and anxiety. She suffers from extreme sexual dysfunction. She suffers from poor attention, reduced concentration and poor short term memory, which means that her household is largely disorganised and she is “ineffectual” at home.
The applicant stated that she cares for her children 50% of the time, and her partner cares for them the other 50% of the time.
The applicant stated that she continues to self-harm and worries that she may one day end her own life.
The applicant stated that she has developed an intense fear of leaving her home, and often has panic attacks in public.
The applicant stated that she is heavily reliant on her partner. She stated that she cannot work, and believes she will never be able to return to the workforce.
The applicant stated that her treating psychiatrist, Dr Likely, her general practitioner (“GP”), Dr Kumar, and her psychologist, Mr Weightman, all assist her. Dr Likely tries to motivate her and reduce her reliance on alcohol, and to escape the practice of self-harming. Dr Kumar helps with coping mechanisms. Mr Weightman provides coping mechanisms and tries to get her to become more social and get out of the house.

I am mindful in his report of 16 December 2016 Dr Caniato stated that the reported levels of alcohol and substance abuse raise the possibility that some, if not all of her impairment is better explained by her alcohol and substance abuse rather than her military injury. Nonetheless, in cross-examination, Dr Caniato confirmed that he was limiting his assessed impairment to the major depressive disorder and somatoform disorder and not to the substance abuse. While Dr Caniato was closely examined as to the concepts of supervision and direction, it was certainly not put to Dr Caniato by the applicant that his assessment was incorrect. In these circumstances it is fair to rely upon the assessment of Dr Caniato that the applicant continues to have a 10% WPI for her major depressive disorder and somatoform disorder.
Having regard to my acceptance of the assessment of Dr Caniato that the applicant’s major depressive disorder in partial remission and undifferentiated somatoform disorder attract a 10% WPI, along with the operation of subsection 25(4) of the DRC Act, it is appropriate to affirm the decision under review in application No 2597 of 2016.
Application No 0399 of 2018
As to the applicant’s claim for alcohol use disorder and cannabis use disorder, the case of the applicant is based upon there being an “unbroken chain of causation” between her military service and her condition in which she claims that she has permanent impairment. I must assess whether the conditions suffered by the applicant are contributed to, to a significant degree, by her service between 1995 and 1997.
I have decided to affirm the decision in application 0399 of 2018. There is no cogent evidence before me that the alcohol use disorder and cannabis use disorder conditions are contributed to, to a significant degree, by the military service of the applicant.
In my opinion, Dr Caniato in his comprehensive report of 30 September 2016, was fair in his assessment that, should it be accepted that the substance use is part of her military claim, then that would reasonably alter his assessment of the degree of impairment. However, the applicant did not, in the cross-examination of Dr Caniato, challenge his opinion that there is uncertainty about the level of substance and alcohol use of the applicant.
I consider that Dr Caniato is correct in his assessment about the uncertainty concerning the level of substance and alcohol use of the applicant. I consider that the applicant is not a good historian as to her level of substance and alcohol use. This is not a criticism of the applicant, who has a psychiatric condition. There are certainly inconsistencies in her statements concerning the level of substance use. For example, in her statement of 16 November 2016 the applicant stated that she smoked cannabis every day and would consume two “cones” daily. Later she informed Dr Likely in February 2017 that she smokes cannabis “intermittently”. Even though Dr Likely was her treating psychiatrist since December 2010, his initial reports make no reference to any substance and alcohol use condition.
The applicant, in her explanation that was lodged on 16 June 2015 makes no reference to substance and alcohol use. That explanation was attached to a Departmental form that she declined to complete. The partner of the applicant in his statement of 26 June 2016 also makes no reference to substance and alcohol use. These statements were lodged by her solicitor.
The asserted level of substance and alcohol use is not, in my opinion, medical treatment that is was reasonable for her to take in terms of subsection 4(3) of the Act. I do not accept the assertion of the applicant in her statement of 16 November 2016 that she has not received medical advice to desist from the substance and alcohol abuse. Dr Likely, in giving evidence, has stated that he has pointed out to the applicant the adverse effect of the alcohol consumption. I also do not accept the evidence of the applicant who asserted that Dr Likely told her that she was a perfect candidate for medical marijuana, she later retracted her assertion that Dr Likely made an application for her to be treated with medical marijuana.
Dr Caniato, in his report of 30 September 2016, has stated that there is no way to confirm current levels of substance abuse and stated that objective measures of substance abuse including blood tests could be considered. This recommendation of Dr Caniato has not been followed and there is no reliable evidence before me of the level of the substance and alcohol abuse. The liver function tests ordered by the general practitioner from 2002 to 2014 appear normal.
During the hearing the applicant filed considerable materials relating to the Senate Inquiry relating to veterans which refer to drug abuse by veterans. These materials had not prior to the hearing been filed with the Tribunal or provided to the respondent. While those materials were marked for identification,[155] I do not consider that the materials are relevant for my determination of this application as I have to consider the individual circumstances of the applicant.
[155] Exhibit MFI 1.
On the evidence before me I do not accept that there is cogent evidence of the applicant having substance and alcohol use conditions. In his report of 8 May 2017, Dr Likely stated that the applicant no longer had any problematic use of drugs (amphetamine and pseudoephedrine) or intermittent use of cannabis.
In application 0399 of 2018 I affirm the decision under review.
CONCLUSION
Having regard to the matters contained in these reasons, I will order that the name of the applicant, along with any identifying material, not be published.
As I am not satisfied that the applicant’s accepted Major Depressive Disorder in Partial Remission and Undifferentiated Somatoform Disorder conditions attract a WPI that is at least 10% higher than the previously assessed amount of 10% WPI, there is no entitlement to a further payment of permanent impairment lump sum compensation. Accordingly, the decision under review in application 2597 of 2016 is affirmed.
As I am not satisfied that the applicant has a Substance Use Disorder condition or Alcohol Use Disorder condition that is contributed to, to a significant degree, by her military service or any accepted injury, the respondent is not liable to pay compensation in respect thereof. Accordingly, the decision under review in application 0399 of 2018 is affirmed.
DECISION
I affirm the decisions under review.

I certify that the preceding 353 (three hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

........................................................................
Associate
Dated: 22 July 2020

Dates of Hearing: 14, 15 November 2018

Date final submissions received: 1 February 2019

Counsel for the Applicant: Mr Allan Anforth

Solicitor for the Applicant: Mr James Pattison, Watt & Severin Solicitors

Counsel for the Respondent:

Mr Charles Clark

Solicitor for the Respondent: Ms Rachel Blake, Moray & Agnew Lawyers

[2020] AATA 2451

22 July 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Causation

Remedies

Dates of Hearing:	14, 15 November 2018
Date final submissions received:	1 February 2019
Counsel for the Applicant:	Mr Allan Anforth
Solicitor for the Applicant:	Mr James Pattison, Watt & Severin Solicitors
Counsel for the Respondent:	Mr Charles Clark
Solicitor for the Respondent:	Ms Rachel Blake, Moray & Agnew Lawyers