HGGJ and Comcare (Compensation)

Case [2020] AATA 136

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
Respondent

CORRIGENDUM

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…

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Details
AGLC
HGGJ and Comcare (Compensation) [2020] AATA 136
Case
[2020] AATA 136
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by HGGJ against a decision by Comcare to affirm a determination that HGGJ no longer had a present entitlement to incapacity payments or medical expenses under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Comcare’s decision was based on the opinion that HGGJ’s compensable injury had resolved and that any ongoing symptoms were attributable to pre-existing, non-employment related factors. The Administrative Appeals Tribunal (AAT) was required to determine whether HGGJ continued to suffer the effects of the 2010 compensable injury and, if so, whether the other entitling circumstances for compensation under the Act existed during the relevant period and continued to the present.

The Tribunal considered several evidentiary issues. Firstly, it addressed Comcare’s lodging of photocopied summonsed documents under section 38AA of the *Administrative Appeals Tribunal Act 1975* (Cth). HGGJ objected to this, raising concerns about the potential extinguishment of implied undertakings of confidentiality. The Tribunal noted that HGGJ had not objected to the issue of the summonses or the inspection orders. It clarified that it was not its general practice to receive such documents in their entirety as exhibits and that, in any event, it was empowered by section 33 of the Act to inform itself in such manner as it thought appropriate, not being bound by the rules of evidence. Secondly, the Tribunal granted leave for new evidence from Dr SP, concerning a diagnosis of "other specified trauma and stressor-related disorder," to be admitted, despite its late disclosure, pursuant to section 66 of the *Safety, Rehabilitation and Compensation Act 1988*.

In its reasoning, the Tribunal acknowledged the conflicting medical evidence regarding the diagnosis of HGGJ's injury and whether the effects of the 2010 compensable injury had ceased. It considered the appropriateness of referring to the Diagnostic and Statistical Manual of Mental Disorders, 5th edition, and the history of adolescent abuse as potential contributing factors to HGGJ's condition. The Tribunal ultimately found that the burden of persuasion rested with Comcare to demonstrate that HGGJ's present symptoms arose from pre-existing conditions caused by non-employment factors, rather than the compensable injury. The Tribunal affirmed Comcare's decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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: …ObjectionIf 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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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).