JXTZ and Comcare (Compensation)
[2017] AATA 880
•16 June 2017
JXTZ and Comcare (Compensation) [2017] AATA 880 (16 June 2017)
Division:GENERAL DIVISION
File Number(s): 2016/2643
Re:JXTZ
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:16 June 2017
Place:Canberra
The decision under review is set aside. The Applicant’s claim is not excluded by operation of s 7(7) of the Safety, Rehabilitation and Compensation Act 1988.
The matter is remitted to Comcare.
.............................[sgd]...........................................
Mr S. Webb, Member
COMPENSATION – psychological injury claim – acceptance of liability overturned on reconsideration – claim excluded if ‘wilful and false misrepresentation’ about not having previously suffered the ‘disease’ under claim – issues of credit – pre-employment health assessment by medical practitioner – divergent accounts of what occurred - meaning of ‘wilful and false misrepresentation’ - evidence not sufficient to positively establish that a wilful and false misrepresentation was made – decision set aside
Safety, Rehabilitation and Compensation Act 1988, s 4, 5A, 5B, 7, 14, 67
Bater v Bater [1950] 2 All ER 458
Briginshaw v Briginshaw (1938) 60 CLR 336
Comcare Australia v Porter (1996) 70 FCR 139
Jones v Dunkel (1959) 101 CLR 298
National Australia Bank v Georgoulas (2013) 217 FCR 382
Seltsam Pty Ltd v McGuiness and Anor (2000) 49 NSWLR 262REASONS FOR DECISION
Mr S. Webb, Member
16 June 2017
JXTZ claimed compensation for a psychological injury in the context of her employment as a Registered Nurse by ACT Health. Comcare determined to accept the claim. On reconsideration, however, Comcare overturned its primary determination and rejected the claim. JXTZ applied for review.
Much is agreed by the parties. There is no dispute that JXTZ suffered an ‘ailment’ in the form of a major depressive episode to which her employment contributed to a significant degree. This, it is agreed, is a ‘disease’ for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the Act). It is also agreed that the ‘disease’ is not excluded from the meaning of ‘injury’ for the purposes of s 5A on reasonable administrative action grounds.
These matters of agreement are consistent with the present materials, and they can be accepted as correct.
The central issue remaining in dispute, on which the success of JXTZ’s compensation claim turns, is whether the exclusion in s 7(7) is made out. That section is in the following terms –
(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Even though the parties are in agreement that the ‘disease’ under claim is the same as the disease JXTZ suffered previously in or about 1994, I note that the evidence is capable of supporting a different conclusion. On the evidence of JXTZ, Dr Reutens and Dr Oelrichs (consultant psychiatrists), Dr Khan (treating general practitioner) and Ms Lavers (treating psychologist), it is quite clear that JXTZ has experienced two major depressive episodes separated by more than 20 years. Dr Reutens reported –
“There is a past history of a major depressive episode which would render [JXTZ] statistically more vulnerable for a future episode, but I note that at the time of the development of the current major depressive episode there was no pre-existing condition.”[1]
[1] Exhibit 1, page 9.
Dr Oelrichs reported that JXTZ “presents with symptoms consistent with major depressive episode” “on a background of a pre-existing history of major depression”, and –
“More likely than not, her condition is a recurrence of a pre-existing condition of major depressive disorder at a moderately severe level She presents with worsening of diagnostic indicators and worsening of her experience of symptoms. I do not have evidence of any pre-existing symptoms prior to the last approximately 18 months, which would have been present in any event.”
While it can be accepted that a diagnosis of major depressive disorder turns, at least in part, on the existence of a single or recurrent major depressive episode,[2] where, as here, the second episode is separated from the first by a long period of remission following treatment, and it is stimulated by factors unrelated to those associated with the first episode, there is a question whether the episodes can properly be considered to be the same disease for the purposes of s 7(7).
[2] See, for example, Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, 2013, pages 162-166.
This point was not argued, and I will go no further with it.
It is relevant to note, however, that JXTZ’s compensation claim is in respect of “psychological and physical stress”,[3] which Dr Khan diagnosed as “Depression and anxiety” caused by “Work place Bullying and harassment” on a background of “Past history of depression – was stable for years”.[4]
[3] T14 folio 38.
[4] T15 folio 42.
JXTZ maintains that she fully disclosed her medical history in the pre-employment health assessment conducted by Dr Loughman, a medical practitioner. In her submission, she did not fill out the Medical History section of the form, as this was something she would usually expect a doctor to complete. Moreover, the handwriting in that section of the form is not hers. She strongly asserts that she fully disclosed her medical history of previous hospitalisation for major depression when 22 years of age consequent upon sexual abuse as a child. In her submission she was surprised to learn that this had not been recorded on the Pre-Employment Health Assessment form as she had expected that it would be and, for this reason, she had been concerned about the security of her personnel records, which she says were stored in an unlocked cabinet by her employer.
Comcare does not accept her account and asserts that JXTZ misrepresented her prior history of major depression in the Pre-Employment Health Assessment form she completed. Comcare argues that JXTZ completed the Medical History section of the form and she omitted to tick boxes indicating a history of anxiety and depression. Furthermore, she failed to disclose to Dr Loughman that she had been previously hospitalised for a major depressive episode – had she done so, Dr Loughman would have included it when noting other previous hospitalisations. These omissions, so the argument goes, were deliberate acts carried out with full knowledge that they were not true and for the purpose of concealing medical information that may prejudice JXTZ’s prospect of employment. For these reasons, Comcare contends that JXTZ’s misrepresentation was wilful and false, and the s 7(7) exclusion is engaged.
Once again, many of the relevant facts are not in dispute. Having examined the materials and the oral evidence, I am reasonably satisfied the following facts are established.
At or about 10.22am on 18 July 2012, JXTZ was sent an offer of employment by ACT Health. The offer was conditional on a pre-employment medical assessment. Attached to the email was a Pre-Employment Health Assessment form,[5] setting out information about the assessment. Quite clearly, it was for JXTZ to make an appointment with Corporate Medical Options (CMO). The present materials do not establish when JXTZ made the appointment with CMO.
[5] An uncompleted form is in Exhibit 3.
The parties agree that the pre-employment health assessment was scheduled for 19 July 2012.
JXTZ attended the assessment appointment. Dr Loughman carried out the assessment.
I should say at this point, that I found JXTZ and Dr Loughman to be straight-forward and truthful witnesses. The difficulties of memory they each encountered were frankly admitted and thoroughly tested in cross examination. The explanations they gave were considered and cogent. And, in the vacuum of absent memory, without the benefit of contemporaneous notes or records to dispel uncertainty, their accounts are not so unreasonable that they should be rejected or so inconsistent that they are incapable of synchronous understanding.
JXTZ was quite clear about her domestic circumstances and her motivations in seeking employment in 2012 – she enjoyed her work as a nurse and wanted to further her career. Having returned from overseas with her young family JXTZ acknowledged that the income of such employment would assist them financially, but she did not want to leave her infant son, who was one year old at the time.
JXTZ’s oral and written evidence[6] is that she cannot recall receiving the offer of employment and the attached form that was sent to her by email on 18 July 2012. She explained and I accept that she and her husband possessed a computer but they did not possess a printer on 18 July 2012, having returned from overseas shortly beforehand. Nonetheless, to my mind, it is quite clear that JXTZ read the email and the attached form she received that morning with sufficient attention to obtain information about CMO and the assessment. In her statement she refers to seeking confirmation before the appointment that the assessment would be made by a female doctor. There is no documentary evidence to support this assertion, but it was not disputed that she did so and I am prepared to accept her evidence on this point. Seeking confirmation of this kind is consistent with what might be expected of a person with a history of child sexual abuse. And it confirms that she received and read the email and the form she was sent on 8 July 2012.
[6] Exhibit 2.
JXTZ gave evidence that she cannot remember if she attended the CMO appointment with the Pre-Employment Health Assessment form and she cannot recall filling in any part of this form. Even if she did not print the form and complete any part of it before arriving for the appointment with CMO on 19 July 2012, it is unavoidable that, at some point, she completed sections of the form in her own handwriting and she signed the form on 19 July 2012.
It can be accepted that three people recorded information on the form – JXTZ, Dr Loughman and, in all likelihood, a nurse who has not otherwise been identified.
There is a dispute about who placed ticks in the Medical History part of the form. JXTZ says she did not complete this part of the form. Her sworn evidence is that, despite express instructions on page 1 of the form that she should complete this section, she understood that it was for the assessing doctor to complete. She was closely cross-examined on this point. She maintained that in her experience, it was for a doctor to take a medical history from a patient as it would not be usual for a patient to record their own medical history. Furthermore, JXTZ asserts that the ticks and notes are not hers. She gave two explanations for this. Firstly, the handwriting in the Medical History section of the form is not hers – even though she has no recollection of completing the form, she recognised her handwriting in the Applicant Details, Employment History and Social History parts of the form. And secondly, she prefers to use a cross rather than a tick when marking a box in a form – that is what she asserts she did in this case.
I note that JXTZ applied crosses when completing her compensation claim form. This tends to support her evidence about her usual practice.
Dr Loughman’s oral and written evidence[7] is that she wrote the notes in the Medical History part of the form, but she would not have ticked any boxes. Like JXTZ, Dr Loughman has no recollection of completing the form. Her evidence in respect of the form relies upon recognition of her handwriting and her usual practice when conducting a pre-employment health assessment, about which she gave evidence. Dr Loughman recognised her handwriting in the Medical History, Examination Findings and recommendations parts of the form – noting that the General Appearance, Urine, Eyes and Cardiovascular parts of the Examination Findings were not hers: these were probably completed by a nurse.
[7] Exhibit 4.
Dr Loughman explained that in circumstances when someone had not completed the Medical History part of the form, she would ask questions about the person’s medical history and record relevant information on the form – only rarely would she go through each of the 36 points set out in that part of the form. But she would always ask about prior hospitalisations. Where the person told her about a previous hospital admission, previous treatment by a psychiatrist or previous lengthy treatment with pharmacological medications as an adult, she would note this on the form. When closely examined on this point, however, Dr Loughman explained that there might be circumstances where she would not make a note, for example where the hospitalisation and treatment related to the person’s childhood. Dr Loughman was asked if she would make a note in circumstances where a person was sexually abused as a child and admitted to hospital and treated successfully as an adult, with no requirement for further treatment for 15 years, to which she responded that, if the person was working as a nurse at the time of hospitalisation, she would have made a note, but possibly not.
From this, three things can be drawn. Firstly, Dr Loughman’s usual practice involved discussion and interpretation of the prospective employee’s medical history and a decision-making process about what to record, or not to record, on the Pre-Employment Health Assessment form. Secondly, where the person had not completed the Medical History part of the form, the doctor would complete this section in consultation and discussion with the person. And thirdly, where the person gave a history of child sex abuse requiring treatment, including hospitalisation and psychiatric treatment as a young adult, and the treatment was successful to the extent that no further treatment was required for an extended period and the symptoms remitted, she might not record this on the form.
Comcare asserts that in JXTZ’s case, it is probable that JXTZ placed the ticks against questions 22 and 24, relating to wrist and bone problems. Proof of this is that she did not place a tick against question 35 concerning hospitalisation, against which Dr Loughman had made two notations. If the doctor had completed this section of the form and placed the ticks against questions 22 and 24, she could reasonably have been expected to place a tick against question 35, but no such tick is present.
Much was made of this during the hearing. But to my mind, the conclusion for which Comcare contends is not the only rational conclusion that can be drawn. It is possible that Comcare’s contention is correct. It is also possible that Dr Loughman placed ticks against questions 22 and 24, but omitted to place a tick against question 35.
Matters of this kind are to be determined on the evidence applying the reasonable satisfaction civil standard without resort to indefinite evidence or indirect inferences,[8] or choosing between possibilities, on the ground that one seems more likely than another.[9]
[8] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.
[9] Jones v Dunkel (1959) 101 CLR 298 at 305.
On balance, I accept JXTZ’s evidence that she did not complete the Medical History section of the Pre-Employment Health Assessment form.
Perhaps little turns on this. In Comcare’s submission, the stronger point is that Dr Loughman did not note that JXTZ had previously been hospitalised when suffering a severe episode of major depression at the age of 22, for which she obtained treatment over 10 years. This, Comcare argues, permits only one logical conclusion – that JXTZ did not fully disclose her previous mental health problems to Dr Loughman and that she did not do so in order to increase her prospect of obtaining employment.
JXTZ gave evidence that she recalls disclosing her history of child sexual abuse and related mental health problems at the age of 22 to Dr Loughman. She was closely cross-examined on her disputed recollection of disclosing this history to Dr Loughman when she could not recall much else about the assessment. But she was unswerving in her account. Her evidence is that she recalls every person to whom she has disclosed this history of abuse, and she recalls making this disclosure to Dr Loughman. She explained that she believed Dr Loughman had noted her prior history of depression and anxiety.
She asserts that it was for this reason she raised the lack of secure storage of personnel records in the context of her employment – she did not want details of her child sexual abuse and related mental health problems to be inadvertently disclosed or discovered. No corroborating evidence has been adduced on this point. Nonetheless, JXTZ was adamant that she expected that her complete medical history was noted on the form. In support of this, she gave evidence that, when first provided with a copy of the completed form (which she had not previously seen or been provided) in the context of these proceedings, she was surprised to discover no record of this aspect of her medical history. In her submission, there was no cogent reason for withholding that part of her medical history, as she clearly disclosed other previous hospitalisations and medical problems.
Considering the evidence, I do not accept Comcare’s assertion that only one logical conclusion can be drawn. On the contrary, the evidence is capable of admitting a number of conclusions, including that JXTZ did disclose her history of child sex abuse and related mental health problems to Dr Loughman, but the doctor decided not to record this in the particular circumstances.
Once again, it is not appropriate to determine this by choosing between possibilities, even if the possibility is real rather than fanciful. The balance of probabilities test is not properly applied by choosing between guesses, on the ground that one guess seems more likely than another. This notwithstanding, as Lord Denning observed in Bater v Bater[10] “in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard”.[11] Clearly enough, as Comcare contends, this does not bar the drawing of an inference as to the probabilities where no other logical explanation can be drawn. On this point, Spigelman CJ’s observation in Seltsam Pty Ltd v McGuiness and Anor[12] is apposite - “an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility”.[13]
[10] [1950] 2 All ER 458.
[11] Ibid. at 459.
[12] (2000) 49 NSWLR 262.
[13] Ibid. at 278.
The difficulty, presently, is that more than one logical conclusion can be drawn on the available evidence, and the probabilities cannot readily or reliably be determined by inference.
On Dr Loughman’s evidence, it is quite clear that she would decide which aspects of JXTZ’s medical history should be included on the form, and that she would not always record everything disclosed to her. She conceded that it is possible JXTZ disclosed a history of child abuse and related mental health issues at the age of 22, and that she may not have recorded this if JXTZ was not employed as a nurse at the time and had no subsequent history of mental health issues as an adult.
JXTZ’s evidence is that she recalled two aspects of the pre-employment health assessment in particular – disclosing her history of child sex abuse and related mental health problems to Dr Loughman, and undergoing a hearing test and discovering that she had hearing loss. Both of these recollections have a reasonable and rational basis, consistent with what one might expect. JXTZ’s account of remembering every person to whom she has disclosed her history of child abuse is compelling. She has nominated each of the people involved and the circumstances in which the disclosure was made. Dr Loughman is among their number. So too is her recollection of the event in which she discovered her hearing loss – that is something that most people would be expected to remember.
To my mind, the manner in which JXTZ gave evidence about her recollections was forthright and without guile. She was consistent and firm, despite close cross-examination and occasional confusion and upset in the circumstances. It is not disputed and should be recorded, in passing, that JXTZ suffers from a mental disorder in respect of which she has claimed compensation. I am prepared to accept her evidence. But even this does not establish the precise details of matters she disclosed or failed to disclose to Dr Loughman.
It is possible that she disclosed her history of child abuse and related mental health problems as a young adult to Dr Loughman, as she contends. It is also possible that she disclosed only part of the history, but not the full extent of hospitalisation and treatment she obtained. It is possible that she disclosed that she had experienced anxiety and depression on a history of child sex abuse, but no more.
Once again, choosing between possibilities is not appropriate.
At this point I should note that the form does not make express provision for detailed disclosure of medical circumstances, or the detail of conditions suffered, treatment obtained or the result of such treatment. The form sets out general categories of ‘problems’ against which the person is asked to tick a box “If you have EVER had any of the following…”. That being so, disclosure of a medical condition even in general terms would be sufficient to satisfy the requirement of the form.
On JXTZ’s evidence that is what she did, and Dr Loughman’s evidence admits that she may have done so, albeit that if she did, the doctor did not record it.
Of course, even if she did not disclose her relevant medical history, as Comcare contends, whether that is sufficient to engage the exclusion in s 7(7) in respect of a disease under claim is another matter.
It can readily be accepted that the failure or omission to provide information about an occurrence, may well be taken as a misrepresentation in respect of the occurrence in certain circumstances. But this should be established by evidence. Quite clearly, the failure or omission may have a rational or innocent explanation that would not be consistent with a misrepresentation.
On balance, the present evidence does not establish to the reasonable satisfaction standard, on the balance of probabilities, that JXTZ misrepresented her medical history of anxiety and depression. For this reason, alone, I am satisfied that the exclusion in s 7(7) is not engaged.
Even at the highest in Comcare’s case, if JXTZ omitted to tick boxes in answer to questions 29 and 30 on the form and she failed to disclose or to fully disclose her medical history of anxiety and depression to Dr Loughman or her (then) prospective employer (and neither proposition is presently established), such that she misrepresented her relevant medical history, for the exclusion to be engaged it must be established by clear and cogent evidence that the representation was wilfully false[14] – that the representation was made without any belief that it was true.[15]
[14] National Australia Bank v Georgoulas (2013) 217 FCR 382 at 395.
[15] Comcare Australia v Porter (1996) 70 FCR 139 at 150.
On these points, the present evidence is not clear and it is not cogent. It barely rises from the opaque realm of possibility, and the possibilities are not capable of raising, by clear or cogent inference drawn from the available evidence, the probability that JXTZ made a misrepresentation about her previous medical history of anxiety and depression and that the misrepresentation was wilfully false.
Even if I was to accept that JXTZ omitted to tick boxes in answer to questions 29 and 30, and I make no such finding, it cannot be assumed that her omission was wilfully false. Well it may be that mind goes to intent and knowledge in the perpetration of a fraud or a deceit. But this must be proved to the applicable standard; it cannot be assumed. For this to be established it would need to be proved that JXTZ acted deliberately to withhold information about her medical history, knowing that doing so would conceal the truth and perpetrate a falsehood. The balance of the present evidence does not permit such a finding, directly or by inference.
Contrary to Comcare’s assertion that only one logical conclusion can be drawn from the evidence, such that an inference can be drawn as to the probabilities, the extent to which the evidence of JXTZ and Dr Loughman is synchronous permits the another possibility, namely that –
(a)JXTZ did not complete the Medical History section of the Pre-Employment Health Assessment form;
(b)this was completed by Dr Loughman in consultation with JXTZ;
(c)JXTZ disclosed a history of anxiety and depression as a young adult consequent upon earlier sexual abuse as a child that had resolved with the need for treatment over many years;
(d)Dr Loughman decided not to record this information in the form.
Whatever the truth may be, it is lost in memories that have faded with the passage of time, and it cannot now be clawed back from obscurity by close examination, or coloured in by inference where the balance of the evidence and the available contemporaneous records are not sufficient for that purpose.
For these reasons, I am compelled to conclude that the s 7(7) exclusion is not engaged.
Decision
The decision under review must be set aside. JXTZ’s claim is not excluded by operation of s 7(7) of the Act.
The matter is remitted to Comcare.
The parties have not been heard on the issue of costs. The parties have 14 days in which to file submissions addressing this issue. If no submissions are filed within that time, I propose to order Comcare to pay JXTZ’s reasonable costs of these proceedings as agreed or taxed.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
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Associate
Dated: 16 June 2017
Date(s) of hearing: 1 June 2017 Counsel for the Applicant: Jason Moffett Solicitors for the Applicant: Bradley Allen Love Counsel for the Respondent: Matthew Gollan Solicitors for the Respondent: McInnes Wilson Lawyers
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