Hogan and Military Rehabilitation and Compensation Commission (Compensation)
[2023] AATA 418
•13 March 2023
Hogan and Military Rehabilitation and Compensation Commission (Compensation) [2023] AATA 418 (13 March 2023)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2021/7630; 2021/9377; 2021/9414
Re:Bernard Hogan
APPLICANT
Military Rehabilitation and Compensation CommissionAnd
RESPONDENT
Decision
Tribunal:Member McLean Williams
Date:13 March 2023
Place:Brisbane
The decisions under review are affirmed.
...........................[SGD].............................................
Member McLean Williams
CATCHWORDS
COMPENSATION - Defence-related claims - whether the Applicant suffered an injury or disease – claim for depressive disorder - claim for post-traumatic stress disorder – claim for alcohol abuse disorder - whether the Applicant's injuries arise out of or in the course of his employment - whether employer induced the Applicant to participate in activity - decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
CASES
Canute v Comcare [2006] HCA 47
Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38
Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101
REASONS FOR DECISION
Member McLean-Williams
6 March 2023
Matters 2021/7630, 2021/9377, and 2021/9414 have been heard together before the Tribunal, on 13 December 2022.
Mr Bernard Hogan, a navy veteran who is now aged 70, seeks to set aside reviewable decisions which have assessed Mr Hogan’s entitlement to compensation under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (‘the DRCA’) as follows:
(a)10% whole permanent impairment (‘WPI’) arising from Depressive Disorder;
(b)15% WPI arising from Post-Traumatic Stress Disorder (‘PTSD’); and
(c)0% WPI arising from Alcohol Abuse Disorder.
Mr Hogan engaged in permanent service in the Royal Australian Navy from 30 June 1968 until 3 August 1977. During that period, Mr Hogan served at sea as a member of ship’s company HMAS Supply, from 20 July 1972 until 5 September 1976; and on HMAS Melbourne, from 6 September 1976 until 25 April 1977.
By a determination dated 3 January 2019, liability was accepted under s.14 of the DRCA for a depressive disorder, with effect from 17 August 2016. The causative factor was expressed to be Mr Hogan’s orthopaedic conditions (for which liability had been previously accepted); as well as various traumatic events that had arisen during Mr Hogan’s naval service.
By a determination dated 9 September 2019, liability was accepted under s.14 of the DRCA for PTSD with a date of injury of 18 February 1998. The causative factor for PTSD was expressed to be that it was probable that Mr Hogan had been exposed to many events during his naval service which had been perceived as either life-threatening, or as having the potential to cause significant injury.
By a determination dated 17 June 2021, liability was accepted under s.14 of the DRCA for alcohol use disorder, with effect from 5 October 1998. The causative factor was expressed in the determination as it being attributable to the other psychological ailments suffered by Mr Hogan, for which liability had previously been accepted.
On 22 March 2019 it was determined that Mr Hogan was entitled to 10% ‘WPI’ under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1 (‘the Guide’) for the impairment arising out of his depressive disorder.
On 4 December 2020 it was determined that Mr Hogan was entitled to 10% WPI under Table 5.1 of the Guide for his PTSD condition. Following a request for a review, it was subsequently determined - on 28 May 2021 - that the degree of WPI for PTSD should be revised upwards, to instead be 15% WPI, in lieu of the previously assessed 10% WPI.
By a determination dated 7 July 2021, Mr Hogan’s claim for an additional payment of compensation for permanent impairment arising from alcohol use disorder and depressive disorder was denied. On 12 July 2021 Mr Hogan requested a review of that determination, yet the 7 July 2021 determination was subsequently re-affirmed, on 2 September 2021.
Mr Hogan has now applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the determinations dated 2 September 2021, and 28 May 2021.
By means of his Statement of Issues Facts and Contentions (‘SIFC’) filed 14 August 2022, Mr Hogan contends that he should become entitled to compensation referable to a 50% WPI arising from his PTSD; a further 50% WPI referable to his depressive disorder; and another 50% WPI because of his alcohol use disorder.[1] Here, Mr Hogan primarily seeks to rely upon a psychiatric report in the T documents dated 5 October 1998 from Doctor N. J. O’Connor, in which Doctor O’Connor had opined that Mr Hogan was suffering from a co-morbid diagnosis of chronic depression, chronic PTSD, and chronic alcohol use which, pursuant to table 5.1 (of the Guide) “would fall in the category of 50% level of impairment”.[2]
[1] Supplementary 4, Members File pp. 739-742.
[2] T4, p. 31, Members File pp. 37-38.
No medical evidence was called by Mr Hogan during the Tribunal hearing.
The Respondent called - and relied upon - medical evidence from Doctor Alistair Macleod, consulting psychiatrist. Doctor Macleod prepared a report dated 18 July 2022, and was called to give viva vocce evidence before the Tribunal by means of telephone, during which he was cross-examined by Mr Hogan, and further questioned, by the Tribunal.
Issues before the Tribunal
On the hearing of this application for review, the issue is whether Mr Hogan is entitled to additional compensation under ss.24 and 27 of the DRCA.
Section 27 of the DRCA was not agitated by Mr Hogan, who concentrated his contentions on s.24. In that light, the following needs to be addressed in the process of determining this review:
(a)what psychological injuries does Mr Hogan suffer, for the purposes of s.24 of the DRCA?;
(b)does each injury result in an impairment?
(c)If yes to (b), are those impairments permanent?
(d)What degree of impairment results from each such injury?
LeGISLATIVE CONTEXT
Section 24 of the DRCA provides:
(1) Where an injury to an employee results in a permanent impairment, the Commonwealth is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, the MRCC shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by the MRCC under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by the MRCC shall be an amount that is the same percentage of the maximum amount as the percentage determined by the MRCC under subsection (5).
(5) The MRCC shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) the MRCC determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a) the employee has a permanent impairment that is a hearing loss; and
(b) the MRCC determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
Section 4 of the DRCA defines “impairment” in the following terms:
The loss, the loss of use, or the damage or malfunction, of any part of the body or of any bodily system or function of part of such system or function
Section 4 of the DRCA also defines “permanent” so as to mean “likely to continue indefinitely”.
In Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535, the High Court held:
…three things may be observed about the concept of “an injury”. First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of “the injury”…Thirdly, the term “injury is not used in a global sense to describe the general condition of the employee following an incident…
…It is clear from the context that what was being referred to was what the majority described as a “consequential injury”, a notion supported by Comcare in terms of “primary” and “secondary” injuries. Comcare’s case depends upon confining the meaning of “injury” to exclude such “consequential injuries”. However, there is no foundation in the Act for any such distinction between “an injury: and a consequential or secondary injury. Neither of these qualifiers finds any expression in the Act. The Act speaks exclusively in terms of “an injury”.
…It is true that the Guide seeks to provide for the assessment of “the degree of permanent impairment of the employee” on a whole of person basis. But, as indicated earlier in these reasons, s.24(5) of the Act imposes a duty upon Comcare to determine “the degree of permanent impairment of the employee resulting from injury”. It is the occurrence of “an injury” which both actuates and defines the ambit of Comcare’s duty pursuant to s.24 of the Act. Once that duty has been performed, subs (3) and (4) of s.24 operate, in a self-executing way, to quantify the amount of compensation payable by Comcare. That amount is payable in satisfaction of Comcare’s liability which arises “in respect of the injury” under s.24(1). The Act only adopts the “whole person impairment” approach with respect to permanent impairments resulting from each “injury”. That “whole person” approach cannot properly be used to deny the applicability of s.24 to something which corresponds to the legislative definition of an “injury”. The statutory criteria of an “injury” is antecedent to the concept of “whole person” impairment, not the other way around.
In Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38; (2009) 240 CLR 28, High Court Justices Hayne, Heydon, Crennan, and Bell JJ., jointly held:
…on its proper construction, s.24(5) of the SRC Act directs attention to the degree of impairment that results from the injury resulting in the impairment identified in s.24(1). The two subsections of s.24 are not to be read as requiring or permitting a different identification of “impairment” in their respective applications. In the application of both sub-sections the focus must fall upon “the loss, the loss of the use, or the damage or malfunction” (s.4(1), “impairment”) of a part of the body or a bodily system or function or part of a bodily system or function. And in the present case there were separate losses of use of, or damage to, two parts of the body.
In Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101; (2013) 214 FCR 1, Justices Cowdroy, Buchanan, and Katzmann stated:
…The result of this approach is that compensation must be assessed for individual injuries. Although under the Guide, the consequences of each injury must be determined by reference to the notion of whole person impairment and be stated as a percentage, that percentage determination only relates to the permanent impairment arising from that injury, which is to be assessed individually, regardless of the position with respect to other injuries or the compensation which may be payable in respect of other injuries.
…
…If it is claimed that aggravation of the PTSD is the same impairment as the PTSD pre-aggravation or that it is the same impairment as the MDD, the assessment of that claim must be carried out in accordance with the direction in Fellowes. In our respectful view, it is insufficient to say only that both affected the applicant’s brain.
The Respondent accepts that Mr Hogan has “injuries” as defined in the DRCA in the form of PTSD, Depressive Disorder, and Alcohol Use Disorder, and that each of these are now permanent conditions.[3] Questions (a), (b) and (c) as posited in paragraph [15] (above) of these reasons are therefore uncontroversial.
[3] Respondent’s SFIC paragraph [4.8]; [4.11].
In his report dated 18 July 2022, Doctor Macleod stated:
The prognosis of his alcohol use disorder is extraordinarily poor…The impairment is stable and persistent.
I consider that his depressive disorder though in current reasonable remission is likely to be permanent, continue indefinitely and is now stable.
In respect to the PTSD, I would consider that Mr Hogan has permanent impairment. This impairment is stable.
On the basis of the evidence of Doctor Macleod, as well as the determinations dated 3 January 2019; 9 September 2019; and 17 June 2021, the Tribunal is satisfied that Mr Hogan suffers from DRCA “injuries” in the form of:
(i)Depressive Disorder;
(ii)PTSD; and
(iii)Alcohol Use Disorder; and
that each of these injuries are now ‘permanent’, and result in an ‘impairment’, as defined in s.4 of the DRCA.
Mr Hogan has already previously received lump sum compensation for permanent impairment attributable to PTSD and Depressive Disorder, and has also been previously assessed for WPI for an accepted injury of Alcohol Use Disorder. It follows therefore, and because of s.24(7)(b) of the DRCA, that Mr Hogan will only now be eligible for additional lump sum compensation in the event that re-assessment of the WPI for any of the three nominated injuries equates to 10% or more WPI, beyond the WPI previously assessed in the case of those injuries.
Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1
Because Mr Hogan’s claim is a defence-related claim, Part 2 of the Guide is applicable. The Principles of Assessment in Part 2 of the Guide provide that ‘the degree of permanent assessment is assessed by reference to the impact of that loss by reference to the functional capacities of a normal healthy person’.
In relation to successive injuries to the same body part, the Guide states:
‘Where there is an initial injury which results in impairment, and a second injury which results in impairment to the same bodily system or function occurs, the pre-existing impairment must be disregarded when assessing the degree of impairment of the second injury. The second injury should be assessed by reference to the functional capacities of a normal healthy person’.
[emphasis inserted by the Tribunal]
Table 5.1 of the Guide sets out impairment percentages for psychiatric conditions. It specifies:
% WPI Description of level of impairment 0 Reactions to stresses of daily living without loss of personal or social efficiency and
Capable of performing activities of daily living without supervision or assistance.
5 Despite the presence of one of the following employee is capable of performing activities of daily living without supervision or assistance:
· reactions to stresses of daily living with minor loss of personal or social efficiency
· lack of conscience directed behaviour without harm to community or self
· minor distortions of thinking.
10 Despite the presence of more than one of the following employee is capable of performing activities of daily living without supervision or assistance:
· reactions to stresses of daily living with minor loss of personal or social efficiency
· lack of conscience directed behaviour without harm to community or self
· minor distortions of thinking.
15 Any one of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stresses of daily living which cause modification to daily living patterns
· marked disturbances in thinking
· definite disturbance in behaviour.
20 Any two of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stresses of daily living which cause modification of daily living patterns
· marked disturbance in thinking
· definite disturbance in behaviour.
25 All of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stresses of daily living which cause modification of daily living patterns
· marked disturbances in thinking
· definite disturbances in behaviour.
30 Any one of the following accompanied by a need for supervision and direction in activities of daily living:
· hospital discharges who require daily medication or regular therapy to avoid readmission
· loss of self-control and/or inability to learn from experience resulting in potential for considerable damage to self or community.
40 More than one of the following accompanied by a need for supervision and direction in activities of daily living:
· hospital discharges who require daily medication or regular therapy to avoid readmission
· loss of self-control and/or inability to learn from experience resulting in potential for considerable damage to self or community.
50 One of the following:
· severe disturbances of thinking and/or behaviour entailing potential or actual harm to self and/or others
· need for supervision and direction in a confined environment.
60 Both of the following:
· severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others
· need for supervision and direction in a confined environment.
90 Very severe disturbance in all aspects of thinking and behaviour requiring constant supervision and care in a confined environment, and assistance with all activities of daily living
Mr Hogan has not sought to obtain any independent medico-legal reports going to the question of the extent of any of his impairments, under Table 5.1.
In addition to the report from Doctor N. J. O’Connor dated 5 October 1998, as referenced (above), there are other, historical reports[4] from other psychiatrists in the T Documents that Mr Hogan seeks to rely upon. Yet, all of these are quite dated reports, and their authors were not available for any cross-examination before the Tribunal. The Tribunal has read and considered each of these earlier reports, and assesses each of these as affording no practical assistance to the task now at hand.
[4] Report of Doctor James Wright, psychiatrist dated 22 August 2016 and Extract of letter from Dr James Wright, psychiatrist dated 23 October 2020.
In particular, the report from Doctor O’Connor from 5 October 1998, although referencing Table 5.1, does not explicitly state that each of the three injuries currently under consideration separately equate to a 50% WPI; and the reference by Doctor O’Connor to a “co-morbid diagnosis” on the first page of what is only a two page report gives rise to an impression that the 50% WPI assessment expressed therein may have been made by Doctor O’Connor on a cumulative basis. As Doctor O’Connor was not available for examination by the Tribunal, the correct interpretation of his report from 5 October 1998 remains an unresolved issue. In the circumstances, the Tribunal is not prepared to attach any weight to this report.
For a period, Mr Hogan was under treatment from Dr Todd Cashman, consulting psychiatrist, who - on 6 April 2021 - assessed the injuries to be PTSD, Depressive Disorder, and Alcohol Use Disorder. Doctor Cashman described these three conditions as “interrelated, overlapping and mutually reinforcing.” Doctor Cashman also stated that the impairments arising from each of them could not be isolated and identified to the exclusion of the other conditions, noting that psychiatric impairment is best rated with all conditions considered together in most cases, before ultimately concluding that a 15% WPI under Table 5.1 was appropriate for the psychiatric diagnoses, as a whole.
There is no recent medico-legal evidence before the Tribunal to lend any support for Mr Hogan’s contention that the impairments arising from his Depressive Disorder, PTSD and Alcohol Use Disorder each now give rise to a 50% WPI.
The only current medico-legal evidence before the Tribunal is that as was obtained by the Respondent from Doctor Alastair Macleod. In his report dated 18 July 2022, Doctor Macleod opined:
SUMMARY AND ASSESSMENT:
Mr Hogan reported a number of traumatic experiences while serving which would be acceptable as criteria A for PTSD in DSM-5. He reported exaggerated startle, traumatic nightmares, intrusive recollections of military events, avoidance of social activity and interpersonal interactions, and a persistent sense of anxiety and hyperarousal. His present alcohol consumption, which has been longstanding, is indeed hazardous and he is most probably physiologically dependent upon alcohol and addicted to its use. He continues this use despite knowing that it is doing harm to himself. He does not currently present as being manifestly clinically depressed, though he revealed a longstanding history of dysthymia, depressed mood and suicidal ideations. I doubt Mr Hogan’s developmental history was uneventful in the home of a probably traumatised WWII veteran and the history and current presentation indicate personality dysfunction, probably Cluster B type, predating service-induced trauma exposure.
Diagnostically I would thus conclude that Mr Hogan suffers a chronic post-traumatic stress disorder, alcohol use disorder, and major depressive disorder, the latter currently in reasonable remission.
In that report, Dr Macleod also said:
“I entirely agree with Dr Todd Cash’s comments that these conditions are “interrelated, overlapping, mutually reinforcing and that psychiatric impairment is best rated with all conditions considered together in most cases”
Ultimately, Doctor Macleod opined that Mr Hogan’s three impairments gave rise to a 25% WPI overall, and that it was not possible to disaggregate the WPI contributed by any one of the three injury conditions. In relation to this particular issue, when giving his oral evidence before the Tribunal, Doctor Macleod was involved in the following exchanges:
[MS SLACK]: Doctor, if you could please go to page 12 of the report and in particular question 3.3?---
[Dr Macleod]: Thank you. Yes.
[MS SLACK]: Thank you. Now, I am primarily concerned as to direct your attention to the nature of the question being asked. It's the question in (b)(iii), which actually goes over onto page 13?---
[Dr Macleod]: Yes.
[MS SLACK]: And you say in answer to question subparagraph (d);
“I don't consider it possible to separate the respective impairments”.
[Dr Macleod]: ‑‑‑Yes.
[MS SLACK]: Could you please explain to the Tribunal why you say that?---
[Dr Macleod]: Well, in my view Mr Hogan suffers three conditions which are all, if you like, cousins of each other, they are all inter-related and clinically we have great difficulties precisely determining the differences between those three conditions because they have similar symptoms, some similar symptoms, similar aetiologies and in Mr Hogan's case I would consider that his primary disorder was most likely a post-traumatic stress disorder which was complicated by alcohol, which made the post-traumatic stress disorder more ingrained and it was further complicated by the depression which likewise further ingrained the condition so that that was - clinically I think it is impossible - despite DSM terminology - trying to - in a cook book way - trying to separate anxiety (indistinct) and trauma conditions, there's huge overlap from a clinical perspective with respective symptoms so people with post-traumatic stress disorder become depressed, people who are depressed often have traumatic symptoms and so forth, so that's what I was meaning. I think it's impossible. I thought it would be possible to separate them in respect of impairments of discrete conditions that were started, in my view experiences suffers.
[MS SLACK]: Thank you and just to be clear, part of your answer, as I understood it, referred to the difficulty in distinguishing between the conditions themselves. Are you talking about - - -?---
[Dr Macleod]: Yes.
[MS SLACK]: Does that - so are you saying that there is both a difficulty in distinguishing between the conditions themselves and also with the impairments that arise out of them?---
[Dr Macleod]: Yes. There's a difficulty separating the various diagnoses and also the impairments consequent to the conditions.
[MEMBER]: Doctor, it's the Member here. What if one were to approach the case from the perspective of pre-supposing that the two other conditions did not exist, and just look at one of them in isolation. Are you able to do that?‑‑‑
[Dr Macleod]: Well, I find it really difficult, because I don't think psychiatry is precise enough with respect to our diagnoses and our understanding of these conditions to actually be able to do that. There's a great intermix of symptoms and we really are not particularly scientific in that precise way.
[MEMBER]: It wouldn't be possible, for example, to say, "Okay, I am going to focus on PTSD and I am going to consider the impact of PTSD and the impairment caused by that and [to] assume for the sake of the exercise that the other depressive condition, and the alcohol abuse condition don't exist" - you couldn't do that, and then perhaps do the same exercise for the other two conditions?---
[Dr Macleod]: Well, I think it would be very difficult because part of the diagnosis of, for example, post-traumatic stress disorder includes some depressive symptoms.
[MEMBER]: Yes?---
[Dr Macleod]: So, it makes it really difficult and confusing, to try and separate them as precisely as that. I don't know if I can express myself any more clearly than that. Does that answer your question? Not quite?
[MEMBER]: Well, it causes something of a difficulty for me, in terms of the legislative regime. Earlier, you used the word "impossible", but you seem to have stepped back from that now and [instead] say "difficult" - and "difficult" doesn't mean it's impossible, it just means it's difficult. Notwithstanding the difficulty, is it possible?---
[Dr Macleod]: Look, I would find it not possible personally. I am - maybe some other colleagues might be able to make the differentiation. I think psychiatry is too muddy to be as precise as that and - now, I don't know if I can express myself any better than that really.
In light of the authorities canvassed by the Tribunal earlier in these reasons, it is necessary for the impairment arising from each injury suffered by the Applicant to be assessed separately. However, the medical evidence remains wholly insufficient to enable the Tribunal to engage in the required exercise. The Tribunal has insufficient evidence before it to be able to be satisfied that a degree of WPI that is at least 10% more than the WPI assessments previously given is now possible, and that situation pertains in the case of each of the injuries.
DECISION
The Tribunal is unable to find that Mr Hogan has sustained 10% or more WPI beyond the WPI assessments already previously made in the case of any of Mr Hogan’s PTSD, Depressive Disorder, or Alcohol Use Disorder.
As no further compensation is payable under s.24 of the DRCA, no liability to pay compensation under s.27 arises.
The decisions under review are affirmed by the Tribunal.
41. I certify that the preceding forty (40) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams
...............................[SGD].........................................
Associate
Dated: 13 March 2023
Dates of hearing:
13 December 2022
Applicant:
In person
Counsel for the Respondent:
Solicitors for the Respondent
Ms K Slack, Higgins Chambers
Mr J Sime, Sparke Helmore Lawyers
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