Hayman and Military Rehabilitation and Compensation Commission
[2016] AATA 790
•7 October 2016
Hayman and Military Rehabilitation and Compensation Commission [2016] AATA 790 (7 October 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2016/2332
Re
Michael Hayman
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 7 October 2016 Place Melbourne The Tribunal has jurisdiction to hear the application.
.....................................................................
Egon Fice, Senior Member
VETERANS – compensation – right shoulder injury secondary to PTSD – nightmares – original PTSD claim withdrawn – no claim lodged for PTSD – whether the Tribunal has jurisdiction to hear claim – Tribunal has jurisdiction
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 14, 24(1) 53, 54, 60, 61, 62, 64
Veterans’ Entitlements Act 1986
Cases
Canute v Comcare (2006) 226 CLR 535
Re Bureau of Meteorology and Comcare and Anor [2015] AATA 267 (28 April 2015)
Langley v Repatriation Commission (1993) 115 ALR 51
Lees v Comcare (1999) 56 ALD 84
McKenna v Repatriation Commission (1999) 86 FCR 144Repatriation Commission v O’Brien (1985) 155 CLR 422
REASONS FOR DECISION
Egon Fice, Senior Member
7 October 2016
Mr Hayman had defence service in the Australian Army, and predominantly, in what is now described as the Active Army Reserve (AAR). The AAR was previously known as the Citizens Military Forces (CMF). In fact Mr Hayman only served with the Australian Regular Army (ARA) between 15 April 1970 and 29 June 1971. He was a member of the CMF between 19 April 1969 and 10 April 1970. He appears not to have been involved with the Army in any way between 1971 and 1976. He again became a member of the AAR on 4 October 1976, remaining until 29 October 1992. He did not have any operational service.
Mr Hayman has a long list of accepted medical conditions, comprising 15 altogether. Post-Traumatic Stress Disorder (PTSD) is not among those accepted conditions. The documents before me indicate that Mr Hayman did lodge a claim for PTSD, probably on 1 July 2015, but he withdrew that claim in August 2015.
Mr Hayman lodged a further claim for compensation which was received by the Department of Veterans’ Affairs on 2 September 2015 in respect of a right shoulder injury which he said occurred on 2 April 2015. That claim was made under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) because the injury occurred on or before 30 June 2004, prior to the commencement of the Military Compensation Act 2004 on 1 July 2004 and Mr Hayman did not have operational service.
On his claim form Mr Hayman indicated that his injury was secondary to adjustment disorder with depressed mood. Mr Hayman indicated that he had suffered a similar injury in the past but had not claimed for that injury. He described the injury as having occurred when he rolled out of bed due to a nightmare about which he said: believe I was in a contact. Mr Hayman attached to this application a report from his General Practitioner, Dr Geetha Venkatram. On the medical certificate dated 25 August 2015 Dr Venkatram set out the following:
Is receiving medical treatment for his right shoulder after a fall from his bed due to nightmares as a result of PTSD in April 2015.
Also attached to his claim form was a hand-written report dated 2 September 2015 from Dr Arthur Velakoulis, a psychiatrist. Dr Velakoulis said:
As per attached letter to Dr Singh, Michael suffers intrusive & distressing dreams and nightmares related to his PTSD.
His description of an anxiety laden/fearful dream on 2.4.15 (with images & a firefight in Afghanistan) seems consistent with his long-standing PTSD nightmares.
I gather that as a consequence he fell out of bed and sustained a R shoulder injury.
As such it would seem quite plausible that his R shoulder injury is a secondary consequence of his primary mental health condition.
For the sake of completion, I should mention that Mr Hayman had an x-ray and ultrasound of his right shoulder on 2 April 2015. The x-ray disclosed some degenerative changes and a small osteophyte at the glenohumeral joint. The remainder of the joint was normal. There was some calcification noted within the supraspinatus tendon. The greater and lesser tuberosities demonstrated some erosion and sclerosis. The ultrasound disclosed the bicipital tendon as somewhat irregular in appearance indicating tendinopathy with fluid within the synovial sheath indicating tenosynovitis. The subscapularis and infraspinatis tendon appeared normal. The supraspinatus tendon appeared thickened indicating tendinopathy but no tear was noted. The subacromial bursa contained fluid and was thickened indicating bursitis. The remainder of his movements were normal.
However, radiological investigation of his right shoulder done on 13 August 2015 indicated severe tendinopathy of the supraspinatus tendon with a likely full thickness tear. That evidence indicates additional damage to his right shoulder since the radiology conducted on 2 April 2015.
Although the material before me is confusing and unclear, particularly regarding the injuries sustained by Mr Hayman to his right shoulder and their apparent cause, the only issues I am required to determine on this interlocutory application is whether the Tribunal has jurisdiction to review his claim for right shoulder injury and whether I should make directions for the production of other documents by the MRCC under s. 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Mr Hayman’s claim form states that the injury was secondary to an adjustment disorder with depressed mood; while the medical reports to which I have referred claim that his injury is secondary to his PTSD. According to Mr L Dobelsky, who appeared on behalf of the Military Rehabilitation and Compensation Commission (MRCC), the Tribunal has no jurisdiction for the reason that Mr Hayman has not lodged a claim for PTSD, his previous claim having been withdrawn.
On the other hand, Mr M Jorgensen, who appeared on behalf of Mr Hayman, submitted that I should simply make directions requiring the MRCC to produce documents regarding a claimed court-martial of a Captain Smith who Mr Hayman claimed sexually assaulted him when he was on recruit training in 1970. Mr Jorgensen also requested the production of documents dealing with a common law claim against Captain Smith for damages which apparently, Mr Hayman informed Mr Jorgensen, had ultimately settled. As I understood Mr Jorgensen, if those documents were provided the Tribunal would be in a position to establish that Mr Hayman had developed PTSD as a result of that sexual assault.
Because this claim is brought under the SRC Act, I need to refer to the statutory provisions dealing with claims for compensation and the jurisdiction of the Tribunal to review such a decision.
The starting point is s. 53 of the SRC Act which relevantly provides:
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury; or
(b)if the employee dies without having become so aware or before it is practicable to serve such notice – as soon as practicable after the employee’s death.
…
There can be no doubt that the notice under s. 53 can be given by lodgement of a claim for compensation (see French J in Comcare v Luck (1999) 29 AAR 403, at 417).
Section 54 relevantly provides:
(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:
(c)a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(d)except where the claim is for compensation under section 16 or 17 – a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
(3) Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such certificate is given to that authority.
…
It is generally understood that where a claim is made for compensation, it is a claim for compensation in accordance with s. 14 of the SRC Act which, relevantly, provides:
(1) Subject to this Part, Comcare 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.
…
It is, in my opinion, important to observe that claims are made for compensation in respect of injuries where those injuries have the consequences stated.
A determining authority, in this case the Military Rehabilitation and Compensation Commission (MRCC), must determine the claim in accordance with s. 61 of the SRC Act which relevantly provides:
(1A) The determining authority must consider and determine each claim for compensation under section 14 within the period prescribed by the regulations.
…
A claimant may apply to this Tribunal for review of a reviewable decision (s. 64(1)) of the SRC Act. The description reviewable decision is a defined term and its meaning is set out in s. 60(1) as follows:
reviewable decision
means a decision made under subsection 38(4) or
section 62.
Section 62 relevantly provides:
(1)…
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a)the claimant; or
(b)if the determination affects the Commonwealth – the Commonwealth; or
(c)if the determination affects a Commonwealth authority – that Commonwealth authority.
…
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
Mr Dobelsky directed my attention to the decision of Deputy President S A Forgie in the case Re Bureau of Meteorology and Comcare and Anor [2015] AATA 267 (28 April 2015). The applicant in that matter, Ms Boulton, lodged a claim with Comcare seeking compensation for depression, anxiety and PTSD. Subsequently, a delegate of Comcare advised Ms Boulton that her claim was disallowed for two conditions, unspecified personality disorder and major depressive disorder. On reconsideration Comcare decided to revoke that determination and substituted a determination that Ms Boulton was entitled to compensation for an aggravation of major depressive disorder. Ms Boulton had not lodged a claim for major depressive disorder. The Bureau raised a preliminary issue regarding whether Comcare had the power to make its decision regarding major depressive disorder given that Ms Boulton had not lodged a claim for that condition.
Deputy President Forgie held that because Ms Boulton had not lodged a claim in respect of major depressive disorder and had not lodged any claim that could have been regarded as a claim on the basis that it substantially complied with the requirements s. 54 of the SRC Act, she must be taken not to have made a claim and therefore compensation was not payable to her under the SRC Act.
I also should mention that Mr Jorgensen referred me to two cases which were determined under the Veterans’ Entitlements Act 1986 (VE Act). However, and with respect to Mr Jorgensen, both of those cases deal with different statutory provisions. The first case, McKenna v Repatriation Commission (1999) 86 FCR 144, deals with the application of ss 120(3) and 120A(3) of the VE Act. Cases under the VE Act must be determined having regard to Statements of Principles determined by the Repatriation Medical Authority. McKenna’s case deals with the connection between a serviceman’s operational service and the claimed injury or disease where that claimed injury or disease is linked to another disease which forms the foundation for the claim. That hypothesis must also be established. It is referred to as a sub-hypothesis. It has no relevance to claims brought under the SRC Act.
The second case referred to by Mr Jorgensen was Langley v Repatriation Commission (1993) 115 ALR 51. This case also concerns the VE Act and the establishment of a reasonable hypothesis. The headnote indicates that in 1984 the respondent determined that the applicant’s bronchitis and pancreatitis were war-caused. The applicant was consequently granted the disability pension. In 1990 the applicant claimed a further disability pension for diabetes said to have been brought on by his pancreatitis. The Veterans’ Review Board rejected the applicant’s claim and determined it was not barred from investigating the factual basis of the 1984 decision. The board found there was no link between his pancreatitis and war service. Subsequently, the Tribunal found that the applicant’s diabetes was not war-caused. The Tribunal also considered it was not prevented from examining the facts underlying the 1984 decision about the cause of the applicant’s pancreatitis although it made no finding on its cause. The applicant appealed, arguing that the Tribunal did not have jurisdiction to reinvestigate the earlier decision regarding his pancreatitis.
The majority (Lockhart and Beazley JJ) held there was no prohibition on a decision-maker in considering a fresh new claim for a different condition which had arisen by reason of an earlier condition. That process could not be described as reopening the earlier determination, notwithstanding that part of the factual matrix involved in the earlier determination was challenged in the later claim. There was therefore no jurisdictional bar to the AAT examining the facts underlying the 1984 determination of the Commission that the appellant’s pancreatitis was war-caused.
Spender J differed on the jurisdiction point. He held there was no power in the Commission to reopen the earlier determination that the pancreatitis was war-caused, except in certain specific circumstances set out in s. 31 of the VE Act. In any case, his Honour said it would be corrosive of administration efficiency in decision-making and would engender a sense of grievance in the public generally if an earlier determination might at any time subsequently be overruled simply because somebody took a different view of the facts. It was not open to the Board or the Tribunal to review or reverse the determination as to the cause of Mr Langley’s pancreatitis in the course of considering his new claim in relation to diabetes.
The differences in opinion between the majority and Spender J on the jurisdiction point can be put down to a different understanding of what the High Court said in Repatriation Commission v O’Brien (1985) 155 CLR 422. The majority said O’Brien was distinguishable while Spender J followed that decision.
With respect to Mr Jorgensen and Mr Dobelsky, the cases to which they referred do not take the matter any further. The two cases referred to by Mr Jorgensen deal with the
VE Act which is significantly different to the SRC Act. Under the VE Act, a veteran may make a claim for a pension where a veteran claims he has suffered incapacity resulting from a war-caused injury or war-caused disease. The decision in the Bureau of Meteorology case, while on the point, in the circumstances of this case, appears to support Mr Jorgensen’s submissions. I will attempt to explain why that is the case.
The Full Court of the Federal Court of Australia (Wilcox, Branson and Tamberlin JJ) in Lees v Comcare (1999) 56 ALD 84 explained the operation of the relevant provisions of the SRC Act. The Court said, at 90:
As Finn J noted, s. 14 is a central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment.…
The Court then referred to Part V and in particular ss. 53 and 54 of the SRC Act. The court stated that s. 54 makes the right to receive compensation under the Act dependent upon the making of a claim. The Court then explained, at 91-92:
It is clear that Pt V of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form. The claim for compensation envisaged by s. 54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections of the Act. The form approved by Comcare as required by s. 54(2)(a) reflects the generic nature of a claim under the section. It is headed “Claim for Rehabilitation and Compensation”. It requires a provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of a kind that would be necessary before the determination could be made, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.…
… For the reasons expressed below, the determination which is made on a claim, as required by s. 54 of the Act, will ordinarily be a determination under s. 14 of the Act.
Part VI of the Act is headed “reconsideration and review of determinations”. It establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or licensed authority, a reconsidered determination to be made within the same authority as original decision – but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination.
The definition of “determination” makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that the determination may be made under s. 14 of the Act. A determination under s.14 cannot amount to more than a determination that Comcare “is liable to pay compensation in accordance with this Act” in respect of a particular injury. The amount of compensation which Comcare would be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
A case which is closer factually to Mr Hayman’s case is the decision of the High Court of Australia (Gummow A-CJ, Kirby, Callinan, Hayden and Crennan JJ) in Canute v Comcare (2006) 226 CLR 535. In that case, Mr Canute was awarded lump-sum compensation for injuries to his back on 9 February 2000. On 4 July 2002 he lodged a second claim for permanent injury compensation in respect of adjustment disorder with anxious and depressed mood arising from his back condition (page 536). While the claim was determined by the Court on the basis of whether Mr Canute had shown an increase in whole person impairment of at least 10%, the Court made a number of statements regarding the operation of a claim for injury under the SRC Act.
The Court said this about injury at 539 – 540:
The concept of “an injury” is a pivotal importance in the structure of the Act. Section 24(1), set out above, provides that Comcare’s liability to pay compensation arises in respect of “an injury”.
The Court said Comcare’s liability under s. 24(1) also arose in respect to an injury. It referred to the definition of injury as set out in the SRC Act. The Court explained, at 540:
The definition of “injury” requires some elaboration. Separate provision is made as to the meaning of “disease” (15), in terms similar to those pertaining to physical or mental injuries within paras (b) and (c) of the definition of “injury”. The primary concept in the definition of “disease” is “ailment”, meaning “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The appellant’s case is that his adjustment disorder met this description and so was “an injury” within the “disease” category. This was accepted by all members of the Full Court (16).
At this juncture, three things may be observed about the concept of “an injury”. First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of “the injury”. Secondly, the term “injury” is not used in the Act in the sense of “workplace accident”. The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to “disease” or “physical or mental” injuries” and, at least to some extent, it assumes that an employee may sustain more than one “injury”. The use in s. 24(1) of the indefinite article in the expression “an injury” reinforces that conclusion.
In Mr Hayman’s case, Mr Hayman made a claim for an injury, that is, an injury to his right shoulder. There can be little doubt that the claimed injury fits within the primary definition of injury as set out in the SRC Act. That is, it is distinct from a disease. Therefore, in order to succeed, the evidence produced on the hearing of this matter must be sufficient to allow the Tribunal to find, on the balance of probabilities, that his injury arose out of or in the course of his defence employment. Therefore, the Tribunal will need to take into evidence material which can establish the connection between Mr Hayman’s right shoulder injury and his defence service. That may require sufficient evidence to be produced to satisfy the Tribunal that the underlying reason for Mr Hayman falling out of bed and injuring his right shoulder was due to nightmares resulting from either his claimed adjustment disorder with depressed mood or PTSD. Furthermore, the evidence must establish, on the balance of probabilities, that his adjustment disorder with depressed mood or PTSD arose out of or in the course of Mr Hayman’s defence service.
While Mr Hayman was diagnosed with adjustment disorder with depressed mood and his claim for compensation due to that ailment (disease) was accepted by the MRCC in 2001, there does not appear to be a report from any psychiatrist diagnosing PTSD. A diagnosis of PTSD of course will be essential as the first step in establishing the connection between Mr Hayman’s claimed right shoulder injury and his defence service. Whether or not PTSD has previously been an accepted condition for which Mr Hayman has received compensation is simply irrelevant. Each claim for compensation arising out of an injury which is claimed to be work-related needs to be established on the evidence before the Tribunal.
As far as jurisdiction is concerned, I find that Mr Hayman satisfies the requirements of
s. 53 of the SRC Act by reason of the lodgement of his claim form on 2 September 2015 which was a claim for injury to his right shoulder. The lodgement of that claim also satisfies s. 54. It appears to have attached to it a certificate by a legally qualified medical practitioner, Dr Velakoulis. While I did not have evidence before me regarding whether Dr Velakoulis was legally qualified, I am aware of Dr Velakoulis providing medical reports in past cases and therefore, without any evidence to the contrary, for present purposes I accept he is authorised to do so. The evidence in the documents produced by the MRCC under s. 37 of the AAT Act also establishes that Mr Hayman sought reconsideration of the primary decision in March 2016. The s. 37 documents also contain the decision made on reconsideration by a Review Officer, a delegate of the MRCC. That reconsidered decision was plainly made under s. 62 of the SRC Act. It is a reviewable decision as that expression as defined in s. 60. It necessarily follows that Mr Hayman was legally entitled to make application to this Tribunal pursuant to s. 64 as he has done. Accordingly, I find the Tribunal has jurisdiction to determine this claim.
As for Mr Jorgensen’s claim that I should make directions pursuant to s. 37(2) of the AAT Act, I have formed the view that such directions are unnecessary. That is because there is a report from a Mr Simon Brown-Greaves, a psychologist, on Mr Hayman’s file, lodged with the Tribunal on 5 September 2016. While that report appears to be dated 21 January 1997, it is nevertheless relevant. Mr Brown-Greaves states in that report that he had read: a range of detailed material including the transcripts of a Court Martial conducted in November 1970. This related to events which occurred on 20th July, 1970. Mr Hayman told the Court Marshall that he was sexually assaulted by Captain Smith at Captain Smith’s home in Wodonga on that evening. That report contains substantial detail of the incident in question and the following investigation and outcome of the Court Martial. While perhaps not the best evidence, it is probably sufficient to establish, on the balance of probabilities, the claimed sexual assault. Mr Hayman’s main problem is that there is no diagnosis of PTSD and its connection with his defence service in the documents currently lodged with the Tribunal. That is not a basis for making the directions sought by Mr Jorgensen. While Mr Hayman bears no onus of proof in establishing that he suffers from PTSD which is related to his defence service, plainly, he will be unable to succeed in this claim unless the Tribunal has before it such evidence.
CONCLUSION
I find that the Tribunal has jurisdiction to hear Mr Hayman’s claim of right shoulder injury. I also find it is unnecessary for me to make the directions regarding the production of further documents by the MRCC.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member. ...............................................................
Associate
Dated 7 October 2016
Date of hearing 19 September 2016 Counsel for the Applicant Michael E. Jorgensen Solicitors for the Applicant Williams Winter Counsel for the Respondent Lazarus Dobelsky Solicitors for the Respondent Moray & Agnew Lawyers
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