HGGJ and Comcare (Compensation)
[2020] AATA 136
•7 February 2020
HGGJ and Comcare (Compensation) [2020] AATA 136 (7 February 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2017/5108
GENERAL DIVISION )Re: HGGJ
Applicant
And: Comcare
RespondentCORRIGENDUM
TRIBUNAL: Member K. Parker
DATE OF CORRIGENDUM: 25 February 2020
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
At paragraph 17, insert the word ‘with’ between the words ‘consistent’ and ‘the’.
At paragraph 79, remove the word ‘Senior’.
At paragraph 197, remove the word ‘a’ between ‘had’ and ‘made’.
At paragraph 252, change ‘[140120]’ to ‘[140]’.
At paragraph 256, insert the word ‘which’ between the words ‘exactly’ and ‘condition’.
At paragraph 265, insert the word ‘to’ between the words ‘as’ and ‘their’.
At paragraph 273, insert the word ‘not’ between the words ‘for’ and ‘mentioning’.
At paragraph 293, sub-paragraph (e), change the word ‘matter’ to the word ‘consultation’.
At paragraph 298, insert the word ‘of’ between the words ‘form’ and ‘clinical’ and insert the word ‘the’ between the words ‘from’ and ‘same’.
At paragraph 312, sub-paragraph (c), change the word ‘he’ to the word ‘she’.
At Paragraph 316, change the word ‘inconsistently’ to the word ‘inconsistency’ and
remove the word ‘occasions’.
At paragraph 322, sub-paragraph (e), change the word ‘states’ to the word ‘state’.
At paragraph 327, change ‘[322253]’ to ‘[322]’.
.........................[sgd].....................................
Member K. Parker
Division:GENERAL DIVISION
File Number(s): 2017/5108
Re:HGGJ
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:7 February 2020
Place:Melbourne
The Tribunal affirms the decision under review.
.........................[sgd]..........................................
Member K. Parker
Catchwords
WORKERS’ COMPENSATION – review of “ceased effects” determination – whether present entitlement to incapacity payments and medical expenses exists under s 19 and s 16 of the Safety, Rehabilitation and Compensation Act 1988 – burden of persuasion rests with Comcare – whether change in entitling circumstances – conflicting medical evidence as to diagnosis of injury and whether effects of 2010 compensable injury had ceased – appropriateness of the Tribunal having regard to the Diagnostic and Statistical Manual of Mental Disorders 5th edition, American Psychiatric Association – whether continuing symptoms arose from pre-existing underlying disease caused by non-employment factors – history of abuse by peers during adolescence – history of abuse by mother – reliability of Applicant’s evidence – decision affirmed
PRACTICE AND PROCEDURE – Comcare lodged photocopied summonsed documents with the Tribunal under s 38AA of the Administrative Appeals Tribunal Act 1975 – objection raised by Applicant – whether Comcare had an “ulterior motive” for lodging those documents – whether Comcare compelled to lodge the documents under s 38AA – meaning of “obtains possession” in s 38AA –- whether implied undertaking not to use documents for collateral purpose would still apply to documents once lodged under s 38AA – no objection raised by Applicant to summonses or authority given by Tribunal to inspect documents – no prescriptive civil procedure regime exists for admission of evidence in hearings of applications before the Tribunal – Tribunal not bound by rules of evidence – power of Tribunal to inform itself on any matter, in such manner, as it thinks appropriate – confined subset of summonsed documents tendered as evidence at the hearing – confidentiality and non-disclosure orders made under s 35 of the Administrative Appeals Tribunal Act 1975
PRACTICE AND PROCEDURE – Applicant sought to adduce new evidence at the hearing – application of s 66 of the Safety, Rehabilitation and Compensation Act 1988 – Tribunal granted leave to adduce the “new evidence” as evidence in this application
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Appeals Tribunal Regulation 2015 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases
Casey v Repatriation Commission (1995) 60 FCR 510
Comcare v Power [2015] FCA 1502
Cory Brothers & Co Ltd v Hughes [1911] 2 KB 738
Esso Australia Resources Ltd v Plowman & Ors (1995) 128 ALR 391
McDonald v Director-General of Social Security (1984) 1 FCR 354
Minister for Immigration v Eshetu (1999) 197 CLR 611
Re Newey and Comcare (Compensation) [2019] AATA 1722
Phillips v The Commonwealth [1964] 110 CLR 347
Reitano v Commonwealth of Australia (1985) 9 ALN N201; [1985] FCA 467The Commonwealth v Muratore [1978] 141 CLR 269
Secondary Materials
Diagnostic and Statistical Manual of Mental Disorders 5th edition, American Psychiatric Association (DSM-5)
AAT General Practice Directions issued on 28 February 2019
REASONS FOR DECISION
Member K. Parker
7 February 2020
INTRODUCTION
This application is about whether the Applicant, HGGJ,[1] should continue to receive incapacity payments and payment of his medical expenses under ss 19 and 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), in respect of a psychological injury for which Comcare accepted liability in 2010 to pay compensation under s 14 of the Act. Comcare ceased making those payments as from 15 May 2017.
[1] For the reasons set out in paragraph [81] to [89], the Tribunal has made orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) to keep confidential the identity of the Applicant by applying the pseudonym “HGGJ” in place of the Applicant’s name and by anonymizing references to persons, places and other information in this Decision and Reasons for Decision that might otherwise reveal the identity of HGGJ.
HGGJ alleged that he was bullied from 2008 to 2010 by his immediate manager (Mr IM) whilst employed by a Commonwealth Government entity (Employer).[2] Half way through this period, HGGJ requested that his Employer assign him to a different manager, so he would no longer have to report to Mr IM. HGGJ’s request was not granted. HGGJ eventually ceased duties in May 2010 due to the continuation of the alleged workplace bullying by Mr IM. HGGJ lodged a claim for compensation with Comcare in July 2010.[3]
[2] The name of this entity has been omitted in order to maintain the confidentiality of the HGGJ.
[3] Refer T-Documents T5/7-13 (HGGJ’s claim).
Comcare assessed HGGJ’s claim and on 21 September 2010 accepted liability to pay compensation under s 14 of the Act in respect of an injury which it described as “aggravation of major depressive disorder, recurrent episode” (the Compensable Injury).[4]
[4] Refer T-Documents T8/80-84 (Comcare’s decision to accept liability).
Over the next six years and eight months, HGGJ received incapacity payments and payment for his medical expenses from Comcare in respect of his Compensable Injury under ss 19 and 16 of the Act. During this time, HGGJ made three unsuccessful attempts to return to his pre-injury duties with the Employer as outlined in detail below. After his second unsuccessful attempt to return to work, HGGJ commenced a Doctor of Philosophy degree (PhD) in early-2013.
On 13 April 2017 Comcare notified HGGJ of its intention to cease his incapacity payments and payment of his medical expenses. At this time HGGJ was participating in a graduated return to work program with the Employer.
On 26 April 2017, the Chief Operating Officer (COO) and Acting Human Resources Manager (Mr HR) of the Employer called HGGJ into a meeting without notice to discuss his performance; his role with the Employer and his future. HGGJ was distressed by this meeting and he said it left him feeling uncertain about his position in the workplace. HGGJ’s symptoms got worse.
On 15 May 2017 Comcare (by its delegate) made a determination that Comcare had “no present liability” for his ongoing medical expenses and incapacity payments under ss 16 and 19 of the Act (the original determination).[5] The delegate stated that he was guided by the medical opinion of Dr KOD, consultant psychiatrist, who had formed a view after examining HGGJ, that HGGJ’s “work aggravation had now resolved and most likely did so around September 2016”.[6] The delegate acknowledged that HGGJ was still experiencing symptoms, but considered that they were “associated with non-compensable factors” rather than “the workplace incident on 14 April 2010”.[7]
[5] Refer T-Documents T36/222 & 223.
[6] Ibid at page 222.
[7] Ibid at page 222. The reference to the date 14 April 2010 refers to the date that HGGJ first sought medical treatment by his former treating psychiatrist in relation to the Compensable Injury.
HGGJ ceased duties with the Employer on 29 May 2017.
In July 2017, the Employer notified HGGJ that his position with the Employer had been determined as excess to requirements.[8] HGGJ requested that a formal offer of a voluntary redundancy package be made to him.[9] The offer was made the following day and accepted by HGGJ on 10 August 2017.[10] Consequently, HGGJ’s employment with the Employer was terminated on 14 August 2017.[11]
[8] Refer Section 38AA Documents at ST28/182&183.
[9] Ibid at ST31/189.
[10] Refer Section 38AA Documents ST33/192.
[11] Refer Section 38AA Documents ST34/193.
Subsequently, HGGJ sought sessional employment as a tutor in a university (working on a part-time basis). He commenced this work in February 2018.
After receiving notice of Comcare’s original determination, HGGJ arranged for his former treating psychiatrists, Dr SP and Dr MR respectively, to prepare medical reports. HGGJ submitted those reports to Comcare and sought a reconsideration of its original determination.[12]
[12] Refer T-Documents T38/230-231.
Comcare invited the Employer to respond to HGGJ’s request for reconsideration. Mr HR responded on 23 June 2017 and advocated that the original determination should be affirmed.[13]
[13] Refer T-Documents T39/232-236
On 7 July 2017, a different delegate of Comcare made a decision to affirm the original determination upon reconsideration (the decision under review).[14] This decision was made on the basis of Dr KOD’s opinion that HGGJ’s Compensable Injury was “in remission” and that he did not fulfil the criteria for a psychological injury. The delegate also noted HGGJ’s pre-existing depressive condition which she said the evidence had reported consistently as being, “long-standing and chronic”.[15] The delegate was satisfied that any ongoing symptoms that HGGJ was experiencing were the result of his “pre-existing depression, and fluctuations due to non-compensable circumstances” including the management of his claim by Comcare.[16] The delegate determined that HGGJ did not have a present entitlement to incapacity payments or payment of medical expenses under ss 16 and 19 of the Act because she considered that his Compensable Injury had resolved and his ongoing symptoms were not compensable.
[14] Refer T-Documents T40/237
[15] Refer T-Documents T40/240.
[16] Refer T-Documents T40/241.
Prior to the hearing of this application, Comcare lodged a set of documents with the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents). Each party lodged a statement of facts, issues and contentions (SFIC). HGGJ lodged a witness statement made by him dated 11 June 2018 (HGGJ’s Statement). The medical issues arising in this application were particularly complex and the Tribunal has considered the medical observations and opinions of over a dozen psychiatrists or psychologists.
The hearing of this application took place over four days. Both parties were legally represented. HGGJ and the following medical witnesses gave evidence at the hearing (in order of appearance):
(a)Dr SP, HGGJ’s former (and long-standing) treating psychiatrist. At the hearing, Dr SP confirmed that she is a “child, adolescent and family” consultant psychiatrist. She said she qualified for a medical degree at the University of Melbourne and is a Fellow of the Royal Australian & New Zealand College of Psychiatrists (RANZCP). Dr SP confirmed that she has been a fully-qualified psychiatrist since 1980 and she commenced treating HGGJ on 15 April 2010;
(b)Dr MR, HGGJ’s more recent treating psychiatrist. At the hearing, Dr MR gave evidence that he first qualified as a psychiatrist in 1975 in Canada and became a Fellow of the RANZCP in 1983. He said he practised both as a child and adult psychiatrist and he saw HGGJ for the first time on 4 August 2016 as a result of Dr SP becoming ill temporarily;[17]
(c)Dr AV, consultant psychiatrist. Dr AV told the Tribunal she obtained her medical degree in 1986. Dr AV said that since 1995 she has been a Fellow of the RANZCP and has practised as a psychiatrist. She said she was also an accredited member of the Faculty of Forensic Psychiatry and an accredited member of the Faculty of Psychotherapy. Dr AV said she obtained a Masters in Forensic Mental Health from the University of New South Wales;[18]
(d)Dr KOD, consultant psychiatrist. He confirmed that he became a medically-qualified practitioner in 1996 and a qualified psychiatrist in 2009. Dr KOD is a Fellow of the RANZCP. Dr KOD told the Tribunal his medical practice was based in Freemantle and that he consulted at rooms in East Melbourne from time to time;
(e)Dr WK, consultant psychiatrist. Dr WK has a Diploma in Psychological Medicine which he said was an equivalent qualification for the practice of medicine and that he was a registered practising psychiatrist in Australia. He said that he has practised as a consultant psychiatrist since 1980; and
(f)Ms VZ, HGGJ’s treating psychologist since 2013.
[17] Ibid at P-83.
[18] Refer Transcript 1 May 2019 at P-2.
An evidentiary issue arose at the hearing about how the Tribunal should treat a voluminous set of documents (totalling 825 pages) lodged by Comcare, comprising (in the main) medical records. The documents came into its possession as a result of those documents being produced by HGGJ’s current and previous treating health practitioners (and other parties) to the Tribunal under summons and Comcare photocopying those documents at the Tribunal, upon inspection.
Counsel for HGGJ, Mr Mark Carey, contended (among other things) that the Tribunal should “not accept those documents into evidence”. Both parties subsequently lodged extensive written submissions regarding the summonsed documents. The Tribunal will address those evidentiary issues below under the heading “Evidentiary Issues – Summonses Documents”. In short (and consistent the Tribunal’s usual practice), the Tribunal has decided not to receive the summonsed documents in their entirety as an exhibit in this application. Comcare then sought to tender a confined subset of those documents as an exhibit, and the Tribunal has decided that it is appropriate to receive them as such on the basis that they are relevant to this review.
Returning to the substantive issues, for the reasons set out below the Tribunal has been persuaded that the effects of the 2010 Compensable Injury ceased as from at least 15 May 2017 until the present time and at the present time. The Tribunal is not satisfied that HGGJ had or has any other “injury” as defined under the Act within this time frame, for which HGGJ has made a claim for compensation under the Act. This change in the “gateway” entitling circumstance means that HGGJ was and is no longer entitled to receive payments for his medical expenses and incapacity payments from Comcare as from 15 May 2017 under ss 16 and 19 of the Act. Given the conclusion reached by the Tribunal, it is not necessary for the Tribunal to address whether the other entitling circumstances under ss 16 or 19 of the Act were in existence as from 15 May 2017. Those other entitling circumstances were, in the case of s 16, whether the claimed medical treatment was reasonable for HGGJ to obtain in the circumstances and whether the amount of compensation was appropriate in respect of those medical expenses; and in the case of s 19, whether HGGJ was “incapacitated for work” as a result of the Compensable Injury.
Accordingly, the Tribunal affirms the decision under review.
RELEVANT LEGISLATION
Section 14(1) of the Act provides that liability to pay compensation in accordance with the Act arises in respect of an injury suffered by an employee, if the injury results in death, incapacity for work, or impairment.
Section 16(1) of the Act provides that where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 of the Act applies to an employee who is incapacitated for work as a result of an injury and provides that Comcare is liable to pay weekly compensation to be calculated in accordance with the formula set out in subsection 19(2).
“Injury” is defined in s 5A of the Act as:
(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.
“Disease” is defined in s 5B of the Act. It means an ailment suffered by an employee or an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.[19]
[19] S 5B(1) of the Act.
“Significant degree” is defined in s 5B(3) of the Act and means a degree that is substantially more than material. In determining whether the ailment or aggravation of it was contributed to, to a significant degree by the employment, without limitation, the following matters may be taken into account:[20]
(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.
[20] S 5B(2) of the Act.
“Aggravation” and “Ailment” are defined in s 4 of the Act as follows:
(a)“Aggravation” is defined to include “acceleration” or “recurrence”; and
(b)“Ailment” means “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 4(9) of the Act provides that (emphasis added):
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
ISSUES
At the commencement of the hearing, Comcare called into question whether liability for the Compensable Injury existed under s 14 of the Act by contending that HGGJ’s employment with the Employer did not contribute to, to a significant degree, the “aggravation of major depressive disorder which he sustained in about April 2010”.[21] For this reason, a significant amount of time in the initial days of the hearing was spent canvassing facts about the workplace events in 2008 to 2010. However, on the third day of the hearing Comcare abandoned this contention. Therefore, it is not necessary for the Tribunal to address that evidence except to the extent that it is relevant to the residual issues for determination. Those residual issues are:
(a)whether HGGJ continues to suffer the effects of the 2010 Compensable Injury as from 15 May 2017 until the present time and at the present time; and
(b)if so, whether the other entitling circumstances that would give rise to an entitlement for HGGJ to be paid compensation by Comcare under ss 16 and 19 of the Act, arising from the wording of those respective provisions (see the last sentence of paragraph [18]), existed during this period and continue at the present time.
[21] Refer paragraph [4.2] of Comcare’s SFIC.
Section 66 of the Act regarding Dr SP’s new evidence
Neither party’s legal representatives addressed the Tribunal about whether Dr SP’s evidence, comprising her opinion about this new co-morbid condition of “other specified trauma and stressor-related disorder” (OSTSRD) (see paragraph [235]) was admissible in evidence in light of s 66 of the Act. Section 66 provides that a claimant seeking to adduce evidence that he or she has not disclosed to the Tribunal at least 28 days prior to the hearing of those proceedings, is not admissible without the leave of the Tribunal.
For the sake of clarity and to the extent that s 66 of the Act applied in this case, the Tribunal grants leave for the new evidence given at the hearing constituting Dr SP’s further diagnosis, to be admitted into evidence. It will be taken into account by the Tribunal.
Separately, as a matter of general procedure, the Tribunal has allowed Dr KOD’s “new” diagnoses (see paragraph [237] and [238]), also given for the first time at the hearing, to be taken into account and admitted into evidence in this application.
EVIDENTIARY ISSUES - SUMMONSED DOCUMENTS
The issues
As mentioned above, some issues arose at the hearing about summonsed documents produced by various non-parties to this application to the Tribunal. The summonses addressed to those non-parties were issued at the request of Comcare. Authority was given to both parties to inspect them. They were photocopied by Comcare and lodged with the Tribunal on 15 June 2018, together with some other documents obtained directly from the Employer.[22] At the time of lodgement, Comcare described this set of documents as “Supplementary T-Documents”, but in its closing submissions stated that it should have named them “Section 38AA Documents”. For ease of reference, the Tribunal will refer to this set of documents as the Section 38AA Documents.
[22] The vast majority of the Section 38AA Documents comprised the photocopied summonsed documents (except for the documents produced by General Practice N as the summons addressed to this clinic was not issued until after lodgement of the Section 38AA Documents). The remainder of the Section 38AA Documents (i.e. documents ST6, ST20, ST21, and ST27-ST34) were documents obtained by Comcare directly from the Employer.
In HGGJ’s Closing Submissions, Mr Carey described HGGJ’s issues about the summonsed documents as follows:
Further submissions concerning receipt, lodgement and proposed tender of documents and the Harman obligation
[44]There are issues raised by the conduct of the proceeding going to the state of the evidence and whether the clinical notes of treaters, being documents summonsed to the Tribunal are:
(a)Capable of being “lodged” with the Tribunal pursuant to either section 37 or 38[23] of the AAT Act; and
(b)Can be ‘tendered’ in evidence as a whole, without ever forming the basis for cross-examination, so as to release them from the implied undertaking.
[23] The Tribunal considers that this was intended to be a reference to s 38AA of the AAT Act (not s 38) and will consider it as such.
In those submissions, Mr Carey requested that the Tribunal:[24]
(a)not “receive the 825 pages as evidence”;
(b)“limit the reference to those documents that it considered were cross-examined on by counsel as will be found to be truly relevant to the proceedings”; and
(c)“control the publication of such documents by order”.
[24] Refer paragraph [83] of HGGJ’s Closing Submissions.
Mr Carey stated that these requests were made on the following bases:[25]
(a)Comcare did not have “capacity” to lodge those documents under s 38AA of the AAT Act because documents received by the Tribunal under its compulsory summons procedures (and photocopied by Comcare) were “not documents in the possession or control of Comcare”, meaning that the criteria under s 38AA(1)(b)(i) of the AAT Act (i.e. “the person obtains possession of a document”) does not apply to Comcare in these circumstances;
(b)the documents were not “capable of being admitted to evidence through their own makers”; and
(c)in light of the “proper control of the Tribunal on use and publication of such highly sensitive and personal documents”. Mr Carey contended that HGGJ is, and has been for some time, a “psychologically vulnerable man” and the documents relating to the course of his treatment are “highly sensitive” and of a “personal nature”. Mr Carey contended that the exposure of those documents “carries a significant potential to harm the trust and confidence of HGGJ in ongoing therapeutic relationship with his established treaters”.[26] Mr Carey also submitted that the documents were never prepared with a view to them becoming public or with proceedings in mind; they did not constitute expert medical opinion and they were not prepared with a forensic purpose in mind, but a clinical or therapeutic purpose alone.[27]
[25] Refer HGGJ’s Closing Submissions.
[26] Ibid at [81].
[27] Ibid at paragraph [82].
Comcare’s response to the issues
Comcare’s response to these issues was that it was compelled to lodge the photocopied summonsed documents (and the documents it had obtained from the Employer after the application for review was lodged), with the Tribunal under s 38AA of the AAT Act.
At a practical level and contrary to Mr Carey’s expectation, Comcare did not seek to tender the documents that it had lodged with the Tribunal, either under s 37 or s 38AA of the AAT Act, in their entirety. Instead, Comcare sought only to tender a limited number of the documents forming part of the Section 38AA Documents, as described in the “tender list” (dated 3 May 2019) provided to the Tribunal and HGGJ on the last day of the hearing (Tender List Documents). During the hearing, counsel for Comcare, Mr Ray Ternes and Mr Carey took a number of the witnesses to information contained in some of those Tender List Documents. Some of those witnesses had been the author of the document to which they were taken. The Tribunal also notes that the submissions of both parties to this application have referenced information contained in some of those Tender List Documents.
The documents in the Tender List comprised:
(a)the “pharmaceutical prescription history” for HGGJ from the Department of Human Services (DHS);[28]
[28] Refer Section 38AA Documents ST1.
(b)clinical notes of General Practice C;[29]
[29] Ibid at ST2.
(c)medical certificates dated 21 October 2003[30] and 28 January 2004;[31]
(d)clinical notes by HGGJ’s former treating psychologist, Ms RM (confined to pages 74 to 77 and 95 to 96);[32]
(e)a mental health assessment form and plan for HGGJ dated 5 March 2010;[33]
(f)four medical reports by Dr SP about HGGJ dated 16 September 2010;[34] 7 April 2011[35]; 28 September 2011[36] and 3 December 2015;[37]
(g)a letter from an Infringements Registrar at Department of Justice and Regulation to HGGJ dated 13 January 2016[38] regarding a “special circumstances” application made by him in relation to an aggregate debt of $5,979.90 arising from toll fines;
(h)a letter from Dr SP to the Infringements Registrar in support of HGGJ’s application referred to in the above subparagraph;[39]
(i)a medical report by Dr SP dated 5 June 2017 (with identical content to Dr SP’s medical report at T-Documents T4, but showing “the correct date”);[40]
(j)clinical notes by Dr SP who gave evidence at the hearing (confined to pages 194 to 222 and 401 to 405);[41]
(k)clinical notes by Ms VZ who gave evidence at the hearing (confined to pages 464 to 465, 472 to 635 and 768 to 772);[42] and
(l)clinical notes by Dr MR who gave evidence at the hearing, for his consultations with HGGJ on 4 and 9 August 2016.[43]
[30] Ibid at ST3.
[31] Ibid at ST4.
[32] Ibid at ST5.
[33] Ibid at ST7.
[34] Ibid at ST8.
[35] Ibid at ST9.
[36] Ibid at ST10.
[37] Ibid at ST17.
[38] Ibid at ST18.
[39] Ibid at ST19.
[40] Ibid at ST26.
[41] Ibid at ST35.
[42] Ibid at ST36.
[43] Ibid at ST37.
Background to the summonses
In this application, Comcare requested that the Tribunal issue seven separate summonses addressed to non-parties (including a number of HGGJ’s current and past treating medical and allied health practitioners and Medicare/DHS). Those summonses were issued under s 40A of the AAT Act successively over the course of approximately 11 months. Once documents were produced to the Tribunal in compliance with those summonses, leave was granted to the parties to inspect the documents pursuant to s 40B(1)(b) of the AAT Act.
In respect of each of those summonses, the Tribunal wrote to Comcare’s and HGGJ’s legal representatives to inform them that the requested summonses had been issued and to specify a return date for production of the documents described in the summons. The pro forma Tribunal letter sent to the parties stipulated that once the documents were produced or on the return date, a standard inspection order would be made to allow HGGJ (as the Applicant) to access the summonsed documents first; and subsequently, to allow Comcare (as the Respondent) to access them. This pro forma letter also advised the parties as follows:
…
Objection
If you object to either the issue of the summons or a standard inspection order, please contact us within 14 days of the date of this letter.
As documents were successively produced under each of the summonses, the Tribunal made respective inspection orders for those documents. As foreshadowed, those orders provided leave to the parties to inspect the documents in accordance with a schedule allowing for HGGJ to inspect them initially, followed by Comcare. The inspection orders provided as follows:
…
2.If the party with first access objects to the other party inspecting all or some of those documents, the other party’s leave to inspect the documents in relation to which the objection is made is suspended until the objection is determined by the Tribunal.
The “Notes” to the inspection orders made by the Tribunal explained the process by which a party could object; and if they did so, the Tribunal would list the matter for a hearing at which the parties could make submissions in relation to any such objection. “Note D” also specified as follows:
After considering the objection and any submissions made by the parties, the Tribunal will make a further order:
(a) granting or refusing the other party leave to inspect some or all of the document(s) in relation to which the objection was made; and
(b) providing for such other matters as the Tribunal thinks fit, including specifying the time from which leave to inspect the document(s) commences.
Upon making of the inspection orders, the Registry of the Tribunal sent a further pro forma letter to the parties to confirm that leave was granted to inspect the produced documents (as referred to above). The last sentence of this letter confirmed that if there was an objection to the other party inspecting the documents, the objecting party must notify the Tribunal “as soon as possible and before another party’s leave to inspect the documents begins”.
In this application, at no stage did HGGJ make any objection to the issue of the summons or orders made for inspection of the documents that were produced under any of the seven summonses. All seven summonses were complied with and documents were produced by the seven addressees of those summonses, namely, General Practice C; Dr SP; Dr MR; Medicare/DHS; Ms RM; Ms VZ and General Practice N.
Consideration of these issues and their significance
The Tribunal has understood HGGJ’s objection regarding the summonsed documents to be based on Mr Carey’s concern that the Tribunal (as presently constituted) might have a general practice of receiving documents lodged under ss 37 and/or 38AA in their entirety as an exhibit.[44] If it did so in relation to the Section 38AA Documents, the Tribunal agrees with Mr Carey’s contention that any implied undertaking (not to use those documents for another purpose) that applies to the summonsed documents (having been compulsorily produced to the Tribunal under provisions of the AAT Act), would be extinguished.
[44] Mr Carey explained that in his experience, some members of the AAT have a general practice of doing so.
However, as mentioned above Comcare did not seek to tender the Section 38AA Documents in this way.
Further, it is not the general practice of this Tribunal (as presently constituted) to receive documents lodged under s 37 and/or s 38AA in their entirety as exhibits in applications for review. The Tribunal did not do so at the hearing of the present application.
Accordingly, it would seem that the basis for Mr Carey’s apparent concern falls away in this instance. However, as provided for in s 33 of the AAT Act the Tribunal is at liberty to use all or any of those documents (or any information contained within them), to inform itself or to form a basis upon which it will make findings in relation the issues arising in this application (subject to applying the usual general principles of procedural fairness). The Tribunal has made numerous references to some of the Section 38AA Documents and the information contained within them in these Reasons for Decision.
Section 33(1)(c) of the AAT Act expressly empowers the Tribunal “to inform itself on any matter in such manner as it thinks appropriate” and states that it “is not bound by the rules of evidence”. This reflects the objectives of the Tribunal to undertake reviews which are, among other qualities, “informal” and intended to be conducted with “as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters for the Tribunal permit” – see s 33(1)(b) of the AAT Act.
There is no requirement in the AAT Act, the Administrative Appeals Tribunal Regulation, or any other enactment or direction issued by the President (past or present) under s 18B of the AAT Act, that the Tribunal inform itself only on the basis of evidence which has been “admitted” at the hearing (by having been received and marked as an exhibit, or otherwise). In fact, there are no rules or directions which establish any type of civil procedure regime for the admission of evidence at hearings of applications for review before the Administrative Appeals Tribunal (AAT).
The Tribunal acknowledges that:
(a)Part IV of the AAT Act deals with “hearing and evidence”. Aside from the requirement of the decision-maker to lodge documents under s 37 and s 38AA of the AAT Act, Division 4 does not provide any detailed prescription or regulation as to how hearings are to be conducted before the Tribunal, requiring evidence to be “admitted” or governing how evidence is to be admitted and subsequently treated;
(b)Division 5 of Part IV of the AAT Act sets out the “procedural powers” of the Tribunal. The first three provisions of this Division (i.e. ss 40, 40A and 40B) deal with issues relating to evidence. Subsection 40(1)(a) is limited to providing that the Tribunal may take evidence on oath or affirmation for the purpose of reviewing a decision. Those three provisions do not govern or limit what other evidence may be “taken” by the Tribunal;
(c)under s 18B of that AAT Act, the legislature has conferred power on the President of the Tribunal to “give written directions” in relation to the procedure and conduct of review of the Tribunal (among other things).[45] Pursuant to this power, the current President of the Tribunal issued a General Practice Directions on 28 February 2019 (AAT General Practice Directions). Paragraphs 2.15 and 2.16 in the AAT General Practice Directions are very general provisions indicating that the Tribunal may be assisted by expert evidence and referring to the existence of a further “guideline” providing guidance in relation to persons giving expert or opinion evidence. Paragraphs 2.18 to 2.21 refers to a general process of the Tribunal requiring witnesses to take an oath or make an affirmation when appearing to give evidence at the hearing. Paragraph 4.2 establishes a “general principle” requiring the party or the decision-maker to: (a) identity as early as possible in the review process all evidence relevant to the review that they want the Tribunal to consider; and (b) to lodge (not “admit”) that evidence with the Tribunal and give it to each party in accordance with the Tribunal’s directions. Paragraph 4.44 refers to the lodgement of evidence with the Tribunal that is proposed to be “relied upon” at the hearing, but does not make any directions about the admission of evidence at the hearing.
[45] Refer subsections 18B(1)(b) and (c) of the AAT Act.
The admission of documents into evidence at the hearing of applications for review before the Tribunal certainly occurs (for instance, the Tribunal will invariably mark certain documents or witness statements as exhibits during a hearing as the Tribunal has done in this application). However, this occurs informally or as a matter of general practice, rather than under any formal requirement (or any procedural requirements) to admit evidence in this way or at all, in order for the Tribunal to be able to use that evidence to inform its decision-making process.
Importantly, if the Tribunal expressly references any information or document contained in summonsed documents in its decision, regardless of whether or not those documents containing that information have been admitted into evidence by the Tribunal at the hearing, that information or document becomes a matter of public record upon the publication of the decision. At that point, any implied undertaking previously applying to that information or document will no longer apply.
Was Comcare compelled to the lodge the summonsed documents under s 38AA?
Given that the Tribunal has not admitted the Section 38AA Documents in their entirety as evidence in this application (by receiving them as an exhibit), the significance of whether Comcare was compelled to lodge the summonsed documents under s 38AA of the Act is diminished. Any issue is restricted to the use of only a select number of those documents as referred to by the Tribunal in its Reasons for Decision or to the documents forming part of the Tender List Documents if received as exhibits.
It is possible that Mr Carey was suggesting that the mere act of Comcare having lodged those documents with the Tribunal was itself a breach of the implied undertaking in respect of the summonsed documents. It is difficult for the Tribunal to clearly discern this from Mr Carey’s submissions. Mr Ternes appears to have understood Mr Carey’s submissions in this way, as evident from Mr Ternes’ statement in Comcare’s submissions regarding the summonsed documents, as follows (emphasis added):
[54] It is nonsensical to suggest that Comcare has in some way transgressed its implied undertaking by including summonsed records in the [Section 38AA Documents]. The implied undertaking protects documents from disclosure outside the current proceedings. Use in the very proceedings in which the summonses were issued cannot be said to be inconsistent with the implied undertaking; it is not a collateral purpose.
To that extent, the Tribunal agrees with Mr Ternes’ contention and does not consider that Comcare breached the implied undertaking by merely lodging the summonsed documents under s 38AA of the AAT Act with the Tribunal. Firstly, Comcare’s use of those documents in this way is not for a “collateral purpose” but instead, Comcare “used” those documents in the context of its direct participation as a party in the present application for review and the documents in question were produced in answer to summonses issued in this very application.
Comcare further contended it was compelled to produce those documents under s 38AA of the AAT Act.
As already mentioned, an implied undertaking applies to documents that are produced to the Tribunal under summons or if a party is compelled to produce them to the Tribunal under either s 37 or s 38AA of the AAT Act. The application of this principle to proceedings before the Tribunal was established in the decision of Mason CJ of the High Court of Australia in Esso Australia Resources Ltd v Plowman & Ors (1995) 128 ALR 391. This principle was subsequently reflected in subparagraphs 5.3(a) and (c) of the AAT General Practice Directions as follows (emphasis added):
Implied undertaking
5.2If you or the decision-maker have obtained a document provided under compulsion in an application before the AAT, you, the decision-maker and any person to whom the document is given, by implication, undertake to the AAT that the document will not be used for any purpose other than the purpose for which it was given to us unless:
(a)the document was received in evidence by us in the application and the confidentiality of the document is not protected by an order under section 35 of the AAT Act or by another statutory provision; or
(b)we give you or the decision-maker permission to use the document for another purpose.
Documents to which the implied undertaking applies include:
(a)documents lodged under section 37 or 38AA of the AAT Act;
(b)documents lodged pursuant to a direction given by us (for example, expert reports or witness statements); and
(c)documents produced in response to a summons issued by us.
As the wording of s 38AA of the AAT Act mandates, this provisions will apply to compel a decision-maker to produce a document to the Tribunal when it “obtains possession” of the document during the relevant period, and if the document is “relevant to the review”. The Tribunal has considered Mr Carey’s and Mr Ternes’ detailed submissions in relation to both of those requirements and makes the following observations.
“Obtains possession”
The Tribunal rejects Mr Carey’s contention that Comcare did not obtain possession of the summonsed documents merely by photocopying them. Comcare came to physically hold photocopies of the summonsed documents as a result of the Tribunal making inspection orders and its standard practice of allowing inspected summonsed documents to be photocopied by the parties. As outlined above, no objection was raised by HGGJ to the making of those orders or to the act of Comcare inspecting and photocopying those documents. The Tribunal notes that in the pro forma letters from the Tribunal to HGGJ’s representatives, as set out in detail above, numerous opportunities were expressly provided to HGGJ for him to object and for an objection hearing to be held involving both parties to the application.
Mr Ternes submitted that at a minimum, “purely at a literal level”, an in-house solicitor of Comcare held the summonsed documents on his file. The Tribunal considers that in the context of s 38AA of the AAT Act, which was intended to establish a mechanism whereby all documents relevant to the review were to be produced to the Tribunal and given to the Applicant, the actual physical holding of a document (or photocopy of a document in this case) by the Respondent is the one of the most obvious ways in which a person “obtains possession” of a document. There is no necessity to consider any expanded meaning of the term “possession”. The examples Mr Carey referred to from the legal dictionary, Words and Phrases Legally Defined [2nd Edition Butterworths 1969],[46] do not assist because they are specific to the individual legislation within which the term “possession” appeared in those cases (and none of them included the SRC Act). Further, the lengthy definition of “possession” when read in full in this legal dictionary, sought to illuminate when a person might be considered to be in “possession” of a document or thing in circumstances even if they are not physically holding the document or thing. In this case, there was no dispute that Comcare actually held the documents in the physical sense.
[46] For completeness, the Tribunal also considered the definition as appearing in the more recent edition of this dictionary.
Accordingly, in the view of this Tribunal the ordinary and natural meaning of the expression “obtains possession” in s 38AA of the AAT Act would include a situation where Comcare had obtained and physically held a photocopy of a document that had been produced to the Tribunal under summons. The Tribunal also considers that such a photocopy of a document falls within the definition of “document” given the breadth of the definition of this word given under s 2B of the Acts Interpretation Act 1901, as contended by Mr Ternes.
Once those documents were physically detained or held by Comcare upon being photocopied, and legitimately so, the Tribunal is satisfied that Comcare “obtains possession” of them for the purposes of s 38AA.
“Relevant to the review”
The Tribunal is also satisfied that Comcare was justified in treating those documents as “relevant to the review” as they comprised of either Medicare records or medical records relating to HGGJ’s medical history and mental health treatment. The Tribunal considers that this information is relevant to the present review, given the issues arising in this application as identified above. Specifically, this review requires an extensive and detailed consideration of the history of HGGJ’s psychological condition, symptomatology, treatment and aetiology spanning a period of two decades.
Finally, the wording of the statutory provision of s 38AA itself does not exclude from its scope, when it could have done so, documents which have already been produced to the Tribunal under summons.
This being the case and in light of the finding in paragraph [63], the Tribunal considers that Comcare was compelled to lodge the photocopied summonsed documents with the Tribunal in accordance with s 38AA of the AAT Act as they have done.
However, the Tribunal considers that the act of lodgement of those documents by Comcare under s 38AA of the AAT Act does not change the essential character of those documents. They remain documents that were compulsorily produced to the Tribunal by non-parties to this application. An implied undertaking still applies to those documents such that a party to this application should not use those documents for a “collateral purpose” unless they are received into evidence or the information contained in them forms part of the Tribunal’s published Decision and Reasons for Decision (and in the absence of any confidentiality or non-disclosure orders being made).
No breach by Comcare of implied undertaking by lodging summonsed documents with the Tribunal
In consideration of the above matters, the Tribunal agrees with Mr Ternes’ contention that Comcare was compelled to produce those documents to the Tribunal under s 38AA of the AAT Act. It was appropriate that they did so, and by taking that step, the Tribunal is satisfied that Comcare did not breach the implied undertaking that applies to the summonsed documents.
Admission of Tender List Documents into evidence
A question remains about whether the Tribunal should grant Comcare’s request to tender into evidence in this application the Tender List Documents.
Mr Carey’s objection about tendering the Tender List Documents was based on his concern that they constituted hearsay evidence and were not “capable of being admitted to evidence through their own makers”. Mr Ternes contended that the Tribunal was not a court and operated within the framework of the AAT Act.
Mr Ternes highlighted ss 2A and 33(1) of the AAT Act and submitted that the High Court of Australia in Minister for Immigration v Eshetu (1999) 197 CLR 611 had described provisions similar to s 33(1) as “intended to be ‘facultative’, rather than restrictive”. He also submitted that Gleeson CJ and McHugh J (at [49]), had held that, “Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals”. Mr Ternes referred to Hill J’s observations in Casey v Repatriation Commission (1995) 60 FCR 510 (at page 514) as follows:
…s 33 of the AAT Act means what it says. The fact that material may be inadmissible in accordance with the law of evidence does not mean that it cannot be admitted into evidence by the Tribunal or taken into account by it. The criterion for admissibility of material in the Tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance.
In applying those principles, Mr Ternes submitted that the clinical notes of Ms RM, Dr SP, Dr MR and Ms VZ were the subject of questioning either of HGGJ or the relevant health practitioner at the hearing.[47] He said that HGGJ had frequently disputed the plain meaning of the clinical notes and that it was appropriate for them to be admitted to ensure the foundation (the note itself) upon which questions and answers were given in evidence is admitted into evidence. Accordingly, where answers were given that contradicted the plain implication of the note, the credibility of the answer could be properly considered. Mr Ternes also submitted that Mr Carey, on behalf of HGGJ, referred to several of those clinical notes in a number of paragraphs of HGGJ’s Closing Submissions.
[47] Refer paragraph [71] of Comcare’s Submissions regarding the Section 38AA Documents.
Mr Ternes submitted that even if the Tribunal decided not to admit the documents referred to in the Tender List into evidence, it was not prevented from relying upon those documents “so long as it is done properly and fairly”. The Tribunal agrees. For the same reasons as identified in paragraphs [48] above, the Tribunal may inform itself on any matter, in such manner, as it thinks appropriate. In doing so, the Tribunal may refer to any document or information contained in any of the Tender List Documents in reaching its decision, if that information in relevant to the issues to be decided, regardless of whether the Tender List Documents were “admitted into evidence” in this application by the step of having been received and marked as an exhibit by the Tribunal.
The Tribunal has considered each of the Tender List Documents and is satisfied that they are relevant to the issues under review in this proceeding. As highlighted by Mr Ternes, information from a number of those documents was read out during the hearing during the cross-examination of HGGJ and a number of the expert witnesses or the documents (or references within them) were referred to in the written submissions of the parties. The list of prescribed medications issued by Medicare/DHS is probative, particularly in light of HGGJ’s inability to remember with precision which medication was prescribed to him or that he was taking, at different times.
Accordingly, the Tribunal sees no reason to depart from its usual (informal) practice of admitting relevant documentary materials in an application before it, and considers it appropriate to admit the Tender List Documents into evidence in this proceeding. It now does so and marks the set of Tender List Documents as Exhibit “R10” in this application.
Further suggestion of “ulterior motive” on part of Comcare
Mr Ternes submitted that the suggestion by Mr Carey that Comcare had an “ulterior motive” in seeking to tender the photocopied summonsed documents was “mistaken”. Mr Ternes stated that it was clear that Comcare sought to do so in support of its argument that the decision under review in this application was correct, and should be affirmed. Mr Ternes submitted that any suggestion that Comcare had an ulterior motive was “strange” given that Comcare was defending the decision under review which, if successful, would bring its claims management to an end.[48]
[48] Refer Comcare’s submissions regarding summonsed documents at paragraph [57].
The Tribunal does not consider that it is appropriate at this time to embark upon a detailed consideration of whether Comcare had an “ulterior motive” in respect of the summonsed documents. There is presently no evidence before the Tribunal to this effect. At present, it seems that Comcare’s intention is limited to seeking to rely upon the documents or information in them to support its contentions in the present application which it is entitled to do in its position as the Respondent.
It may be that at some point in the future, Comcare might wish to use some of the information referred to in the summonsed document in relation to its claims management processes in respect of HGGJ, concerning either the same or different injury. Whether Comcare does so is at this point in time a matter of speculation.
The Tribunal says nothing more about this issue as it considers it premature to do so, except to make the observation that it has considered and agrees with the views of Senior Deputy President Forgie as referred to in paragraphs [16] and [32] in Re Newey and Comcare (Compensation) [2019] AATA 1722. In other words, the Tribunal considers that Comcare would be required to seek a release of the implied undertaking if it wished to use any of the Section 38AA Documents (excluding the Tender List Documents now tendered into evidence), for the purpose of assessing any further claim that HGGJ’s may subsequently make, concerning the Compensable Injury under consideration in this application or any other injury.
The Tribunal has reached this view having taken into account the contentions and further authorities highlighted by Mr Carey in HGGJ’s Further Submissions lodged with the Tribunal on 10 December 2019.
HGGJ’s request for orders to “control the publication of” the summonsed documents
On the last day of the hearing, Mr Carey requested on behalf of HGGJ that the Tribunal should “control the publication of such documents by orders”.
Section 35(1) of the AAT Act mandates that a hearing before this Tribunal must be in public unless the Tribunal has made orders under s 35(2) directing that a hearing, or part of it take place in private or direct who may be present at the hearing. No application was made by either party at any time before the hearing of this application for review to take place in private.
However, s 35(3) confers discretion on the Tribunal to order or give directions to prohibit or restrict the publication or other disclosure of information tending to reveal the identity of a party to or witness in a proceeding before the Tribunal or information otherwise concerning such persons. Section 35(4) confers discretion on the Tribunal to order or make directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that relates to the proceeding and is information that comprises evidence or information about evidence or information lodged with or otherwise given to the Tribunal.
When exercising discretion under either or both of subsections 35(3) or (4), subsection 35(5) provides that the Tribunal is to take as the basis of its consideration:
(a)the principle that it is desirable the hearings should be held in public;
(b)the evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and all the parties; and
(c)the contents of documents lodged with the Tribunal should be made available to all the parties.
Section 35(5) also provides as follows:
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, inducing, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
The Tribunal is presently unclear as to the type of orders under s 35 of the AAT Act Mr Carey seeks on behalf of HGGJ (other than those orders will have the general effect of protecting against the publication of the summonsed documents).[49]
[49] No proposed orders were put forward to the Tribunal.
The Tribunal notes that no application was made for or on behalf of HGGJ to the Tribunal requesting orders or directions to be made under either subsections 35(3) or (4) of the AAT Act at any of the following stages:
(a)when HGGJ was given a copy of the T-Documents lodged under s 37;
(b)when HGGJ was given a copy of any of the seven summonses issued to Medicare and the various medical practitioners and/or clinics;
(c)after HGGJ’s representatives inspected the summonsed documents;
(d)upon Comcare lodging the summonsed documents with the Tribunal; or
(e)at any subsequent stage leading up to hearing of this application.
However, the Tribunal agrees with Mr Carey’s submission that HGGJ is a psychologically vulnerable man. On the medical evidence, the Tribunal is satisfied that HGGJ has an increased propensity to experience a sense of humiliation and that he has a reported history of frequently experiencing suicidal ideations.
Despite HGGJ not having sought orders under s 35 at an earlier point in time, the Tribunal considers that it is appropriate to make orders which will have the effect of keeping confidential HGGJ’s identity, given the personal nature of the evidence in this case including about his family history and HGGJ’s (and his parents’) psychological medical conditions. These orders have been made and will be sent to the parties separate to this Decision. The orders will also restrict the disclosure of the evidence and all other documents held on the Tribunal’s file in relation to this application to the parties and their representatives; the Tribunal staff and its members; and the staff and judges of any appellate court (if an appeal is subsequently lodged against this decision).
BACKGROUND
HGGJ is a 38-year-old single man who lives independently. He is tertiary qualified at a post-graduate level, having completed a Bachelor of Arts (Honours) degree at University A and a Masters of Arts degree at University B.
HGGJ has a younger brother and sister. His parents are separated. He maintains a close relationship with his father. HGGJ is estranged from his mother and has been for about five years. HGGJ’s mother and father both have a history of depression and required treatment. HGGJ’s mother’s parents were holocaust survivors. HGGJ said that at times, his mother’s mental health condition manifested as aggressive behaviour directed toward him and his father.
In HGGJ’s Statement, he claimed to have suffered from a “major depressive disorder” from 2000 until 2006.[50] He said he was bullied at school in 1995 and 1996 and had suffered depression as a result of those experiences.[51] He also said he had a difficult relationship with his mother and that she was “prone to bouts of explosive rage and anger at times”.[52]
[50] Refer Exhibit “A1” – see paragraph [2] and [9].
[51] Ibid at paragraph [10].
[52] Ibid.
At the hearing, HGGJ said he first experienced depressive symptoms in about 1995 in connection with the bullying he experienced while he was at school.[53] He said the bullying started in 1994 when he was in Year 8 and continued during 1995 and 1996. He said that eventually there was a physical incident where he was grabbed, elbowed in the neck and kneed in the thigh. HGGJ said the school would not do anything about the situation so his father called the Police. HGGJ said the Police became involved and “that put an end to the bullying”.[54]
[53] Refer Transcript 29 April 2019 at P-38.
[54] Ibid at P-39.
HGGJ said that after being bullied at school, he remained at school; performed well academically; and was admitted to University A.
During the undergraduate degree, HGGJ said he was living at home with both of his parents and his siblings. When asked whether he suffered “abuse” from his mother during that period, he said, “Yes. Her behaviours [were] very difficult – difficult to deal with, yes”. HGGJ was asked by Mr Ternes if he would put his mother’s behaviours in the category of “abusive” to which he agreed.[55]
[55] Ibid at P-46.
At the hearing, the Tribunal sought further clarification from HGGJ about his history of completing undergraduate tertiary studies:[282]
[282] Refer Transcript 29 April 2019 at P47-49.
MEMBER: So, can I just go back to that, to make sure I’m clear about what you said about that initial period of tertiary study. So, what year did you finish your VCE?
HGGJ: 98.
Member: In 1998. And did you start straight away your Bachelor of Arts?
HGGJ: Yes.
Member: And did you study for – were you enrolled to study full time?
HGGJ: Yes, I was enrolled full time.
Member: Yes. And did you complete that first year studying full time?
HGGJ: Yes. Yes.
Member: In its entirety. And then in 2000, what happened in that year? Did you complete a year of full study successfully?
HGGJ: Yes. My memory is that I did, but that was the year that I think I was diagnosed by Dr GP, and where I had more severe symptoms. I think - - -
Member: And were there any other events that happened that year that triggered that?
HGGJ: No.
Member: Okay. And was there an increase in symptoms that caused you to go and seek a diagnosis?
HGGJ: Yes. The – the low mood was essentially lower, and a bit more – was having a more noticeable effect on me.
Member: And do you remember that in that second year of uni reducing your work – your study of work load?
HGGJ: No, I think I – I think I kept it up, but I think I might have failed one or two subjects.
Member: Right. And how did that effect you?
HGGJ: Failing the subjects?
Member: Yes?
HGGJ: Well, I think the effect was to make me more aware of the – of the effect that it was having on me.
Member: Yes, okay. And in the third year, so in 2001, do you remember what happened with your study that year?
HGGJ: No. Again, I don’t remember the specifics. No, I don’t remember the specifics.
Member: Yes, do you remember whether you dropped down to a part-time study load, in that third year?
HGGJ: No, I don’t believe I ever dropped down to a part time study during my undergraduate degree.
Member: So, did you repeat a number of subjects?
HGGJ: Yes. Like, if I failed a subject, you would have to repeat.
Member: Yes. And so you just did the – it was a single Bachelor of Arts?
HGGJ: Yes.
Member: With two majors?
HGGJ: Yes.
Member: And that took you from – you started in 1999?
HGGJ: Yes.
Member: And when did you complete your last subject?
HGGJ: So, I finished my Honours in 2005.
Member: Without the Honours part, so just the basic Bachelor’s Degree. When did you finish that?
HGGJ: I think 2003.
Member: 2003?
HGGJ: Yes. And I think 2004 I might have – my memory on this is a bit hazy, but I think I might have started, and then decided not to pursue the Honours that year, just to – to do casual work instead. And then to resume it - - -
Member: And what did you do for casual work at that time?
HGGJ: I was working for [name of supermarket omitted].
Member: At [name of supermarket omitted]?
HGGJ: Yes.
Member: Okay. So is that when you said you had a period of a year off for study?
HGGJ: Yes.
Member: Is that?
HGGJ: Yes. That was the year.
Member: That was the year. So, you deferred for a year, and then you went back and completed your Honours year in 2005?
HGGJ: Yes. That’s right.
Member: Yes. All right. Thank you.
Upon doing so, it was evident that HGGJ took six years to complete what should have been a four-year undergraduate honours degree. At the hearing, HGGJ confirmed that he had 18 months off (or that it might have been one year), over a couple of periods during his undergraduate studies and then “patches here and there” over the period 1999 to 2005. When asked if this was as a result of him suffering from depressive symptoms, HGGJ answered as follows:[283]
No, not all of the absences were a result of suffering from depressive symptoms. There was a period of one semester, around the time of the diagnosis in 2000 by Dr GP where the symptoms were somewhat more serious than they had been and more serious than they were subsequently and I remember at that time, taking time off as a result of the condition. That was early 2000.
[283] Ibid at P-45.
However, the Tribunal does not accept this evidence and finds that the long breaks taken during HGGJ’s undergraduate studies were taken due to the impact of his psychological condition on his functional capacity during those years. This finding is based on the evidence of Dr DF in her report dated 12 December 2012 stating that HGGJ had reported to her that the two prolonged periods away from his studies were due to his symptoms – see paragraph [140]. The Tribunal prefers this evidence and considers that it represents an accurate representation of the reasons for those two absences. The Tribunal considers that HGGJ has sought to play down the past difficulties he had experienced at the undergraduate level of his studies, to the examining doctors and the Tribunal (when making his witness statement).
The Tribunal accepts that HGGJ’s progress when he was completing his master’s degree was a lot better than during his undergraduate degree. This improved state occurred in part because, on his own evidence; he could control the interaction he had with his mother while living interstate from her; and because he had forged better friendships while undertaking the master’s course. The Tribunal considers that this reflects the major impact on HGGJ’s psychological state of the relationship he had with his mother and HGGJ’s previous social isolation before moving interstate. By this time, HGGJ had also sought medical treatment for his condition and he was complying with his psychiatrist’s recommendations to take certain psychotropic medication and other treatment to manage his symptoms.
For all of those reasons, the Tribunal is not satisfied that HGGJ’s level of functionality during the two years that he completed his master’s degree should be treated as the “baseline” upon which to measure his symptomatology arising from the Underlying Conditions during the subsequent years. The Tribunal considers that HGGJ had not been able to establish on the evidence to the Tribunal’s satisfaction that he had a capacity for full-time work or study at any stage in his life, even while he was working for the Employer.
The Tribunal finds that the intensification of HGGJ’s symptoms arising from the aggravation of his Underlying Conditions after the events of 2008 to 2010 eventually subsided over the next six or so years to return to pre-morbid levels. This finding is supported by the following evidence which the Tribunal accepts:
(a)Dr KOD’s assessment following his examination of HGGJ in August 2016 and February 2017 that HGGJ was not experiencing symptoms of depression and was fit for work and the aggravation of his pre-existing condition had resolved – see paragraph [188]. Further, at the hearing Dr KOD stated that:[284]
[284] Refer Transcript 1 May 2019 at P-47.
…working backwards, the mental state examination reflected a young person who appeared spontaneous, was pleasant, was not appearing depressed and so that was compatible with the answers that the person gave which was that they were not feeling depressed and then that is commensurate with the fact that (indistinct) description of the person’s lifestyle that they were fulfilling lifestyle behaviours that were compatible with a non-depressed state and as a component of the history that the person was continuing not be taking medications that they’d previously had to treat the symptoms to previous diagnosed depressive conditions and symptoms”
(b)Dr SP’s assessment of HGGJ after examining him on 29 July 2010 was that despite HGGJ experiencing continuing symptoms, his concentration and interest in things was gradually improving and she stated his “very severe episodes of depression were much reduced” – see paragraph [118];
(c)HGGJ reported to Dr PC in September 2010 that he had improved relative to the time he ceased work when he was “very acute” – see paragraph [120];
(d)Dr PC’s assessment of HGGJ after examining him in December 2010 as outlined in paragraphs [126] and [128], and in particular, Dr PC’s view that HGGJ’s major depressive episode was “resolving”;
(e)HGGJ reported to Dr DF in November 2012 that his reading had increased – see paragraph [141]. Dr DF’s assessment of HGGJ at this time was that there was an overall improvement in his mental states but with ongoing residual symptoms – see paragraph [142];
(f)Dr MR’s assessment for the purpose of a VicRoads medical assessment in November 2016 where Dr MR was prepared to certify for the important purpose of supporting a drivers’ licence application by HGGJ that his “major depression was in remission”;
(g)HGGJ was able to commence and enjoy for a period of 18 months a de facto relationship which involved spending time with his partner and going on social outings with her as noted by Dr PC in December 2010;
(h)the progress report about HGGJ after Dr DF examined him in November 2012 – see paragraph [138], and in particular, that he was gradually improving over time and that he was no longer pervasively depressed or anxious and his motivation and cognitive function had improved;
(i)HGGJ commenced a PhD in 2013 and while the Tribunal accepts HGGJ’s evidence that his progress in relation to those studies may be slow, there was no evidence before the Tribunal to verify that his pursuits in this regard have either been either suspended or discontinued altogether. The Tribunal considers that this reflects that HGGJ’s concentration remains at a sufficient to enable him to continue to pursue such an undertaking even if it may be at a slower pace than his peers; and
(j)on 16 March 2016, Dr SP stated that upon examining HGGJ that day, she had noted “significant improvement” including in his mood, sleep, concentration, behaviour and alertness – see paragraph [177]; and he was not showing signs of “instability”.
The Tribunal finds that HGGJ’s condition improved significantly over the course of 2016 and when he attempted a return to work in 2017; however, the Tribunal considers that HGGJ was still experiencing intermittent symptoms of anxiety and depression during this period, but not significantly worse or different from the symptoms he experienced intermittently before working at the Employer as a result of his pre-existing Underlying Conditions.
Further evidence in support of a finding that HGGJ had continued to restore his psychological functionality subsequent to this time arises from the commencement of his employment as a sessional tutor at University B in February 2018 where he is required to interact with a significant number of students and meet time deadlines for the assessment of his student’s work. HGGL also told the Tribunal he had remaining capacity to work a further one day per week beyond his current part-time workload but did not think he could work anymore than that.
Taking into account HGGJ’s current workload, while factoring in his ongoing (albeit gradual) PhD studies and the additional day per week that he considers that he could work, the Tribunal considers that HGGJ is working at a level that demonstrates a degree of functionality which is commensurate with his level of capacity as a result of his Underlying Conditions before he commenced work the Employer. The Tribunal agrees with an observation made by Dr AV to the effect that just because HGGJ was present full-time (or close to it) while working at the Employer does not necessarily mean he was working effectively on a full-time basis.
The Tribunal considers that the effects of the aggravation of the Underlying Condition continued at this “moderate” to “low” level until late-2016 and early-2017. The Tribunal finds that by 15 May 2017, HGGJ’s functionality was restored to a level that was consistent with his functionality at different periods before 2008 caused by continuing effects of his Underlying Conditions.
The Tribunal considers that the “something” that Dr MR considered that HGGJ continued to suffer from were symptoms arising from the pre-existing Underlying Conditions. The Tribunal accepts Dr KOD’s evidence to the extent that he considered that the work-related aggravation of HGGJ’s pre-existing condition had resolved when Dr KOD assessed him in February 2017 – see paragraph [188]; and HGGJ reported to Dr KOD that he was symptom-free when he examined him in August 2016 and February 2017 – see paragraph [181]. The Tribunal also accepts Dr AV’s opinion that HGGJ intermittent depression in early 2017 represented no more than a continuation of his pre-existing condition – see paragraph [308] and that after examining HGGJ in September 2018 that HGGJ’s condition did not continue to be contributed to, to a significant degree, by his employment during 2008 to 2010 – see paragraph [216]. Accordingly and based on the further evidence referred to in paragraph [322253], the Tribunal finds that as from 15 May 2017 until the present time and at the present time, the effects of the aggravation to HGGJ’s two Underlying Conditions caused by those events (one of them being the Compensable Injury), had ceased.
CONCLUSION
In summary, the Tribunal has found that before HGGJ commenced employment with the Employer he suffered from two Underlying Conditions being “major depressive disorder” and OSTSRD. HGGJ’s exposure to certain conduct in the workplace of the Employer from 2008 to 2010 gave rise to an aggravation of both of those Underlying Conditions which persisted for over six years. However, the Tribunal is persuaded that as from 15 May 2017 to the present time and at the present time, the effects of the aggravation to HGGJ’s two pre-existing Underlying Conditions (one of them being the Compensable Injury) had ceased.
As from 15 May 2017, the Tribunal has found HGGJ is continuing to suffer from the effects of his two pre-existing Underlying Conditions. HGGJ’s employment with the Employer did not contribute to, to a significant degree, to either of those Underlying Conditions as both arose in HGGJ’s early adolescence as a consequence of trauma experienced from relationships in HGGJ’s personal life. Accordingly the Tribunal is persuaded that the “gateway” entitling circumstance of HGGJ having an “injury” as defined by the Act had ceased to exist as from 15 May 2017 to the present time and at the present time. On the basis of this conclusion, there is no need to address whether the other entitling circumstances under ss 16 and 19 of the Act as referred to in paragraph [18] had also ceased to exist.
Accordingly, the Tribunal affirms the decision under review.
331. I certify that the preceding three hundred and thirty (330) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.
..........................[sgd]......................................
Associate
Dated: 7 February 2020
Date of hearing:
Date final submissions lodged:
29 & 30 April 2019, 1 & 3 May 2019
10 December 2019
Advocate for the Applicant:
Solicitors for the Applicant:
Mark Carey of Counsel
Maurice Blackburn Lawyers
Advocate for the Respondent: Ray Ternes of Counsel Solicitors for the Respondent: Comcare (Andrew Schofield, Senior Legal Adviser)
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