Nancy Rose and Comcare
[2013] AATA 735
[2013] AATA 735
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4613
Re
Nancy Rose
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 2 October 2013 Date of written reasons 11 October 2013 Place Canberra Implementation of the decision under review is stayed, subject to further order.
...................[sgd].....................................................
Mr S. Webb, Member
COMPENSATION - stay application - relevant factors – psychiatric disease - invalidity retirement – decision accepting liability for psychological injury overturned after five years – adverse effect on Applicant’s mental health - difficult financial circumstances – risk Applicant not able to afford medical treatment if stay not granted - some capacity to repay debt if application unsuccessful - evidence to be tested to ascertain merit - stay desirable to secure effectiveness of hearing - stay granted
Administrative Appeals Tribunal Act 1975, s 41
Safety, Rehabilitation and Compensation Act 1988, s 14, 62, 114, 114C, 114D
Shi v Migration Institute of Australia & Anor (2003) 134 FCR 326
Civil Aviation Safety Authority v Hotop [2005] FCA 1023
Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1998) 31 ALD 380
Re Artemis and Australian Postal Corporation (1998) 27 AAR 60
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541REASONS FOR DECISION
Mr S. Webb, Member
11 October 2013
Nancy Rose claimed compensation in respect of a work-related psychiatric illness that resulted in her retirement on invalidity grounds. Comcare accepted the claim and paid Ms Rose weekly compensation for incapacity and compensation for medical treatment expenses. Five years later, Comcare decided that its original acceptance of the claim, and of liability to pay Ms Rose compensation for the psychological injury, was incorrect. It reversed the decision and stopped paying Ms Rose compensation. Ms Rose applied for review of this decision, and she applied for implementation of the decision to be stayed. Comcare opposed the granting of a stay.
The stay application came on for hearing before me on 2 October 2013. Both parties were represented by counsel. Ms Rose was not fit to give oral evidence, as she had been hospitalised following deterioration of her mental health. Counsel for Ms Rose, David Richards, urged me to proceed to hear the stay application in her absence. Andrew Dillon, counsel for Comcare, concurred. Proceeding to hear the application, I informed the parties that I would adjourn the hearing, or consider a further application from Ms Rose, if the present evidence was not sufficient to properly determine the application. A number of documents were tendered and exhibited and extensive oral submissions were made. I handed down a decision, granting the stay, and provided reasons orally.
Comcare requested written reasons, which follow.
The brief facts are –
(a)on 15 April 2008, Ms Rose signed a claim for compensation in respect of Generalised Anxiety Disorder, said to have arisen in December 2006 as a result of bullying at work in the Department of Defence (Defence);
(b)on 29 November 2008, Comcare accepted liability for this Disorder, expressly finding that it was not within the exclusionary provisions of s 5A of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act)[1];
[1] Primary determination, 29 November 2008, pages 9-10.
(c)Ms Rose was paid weekly compensation for incapacity from 22 February 2008 and compensation for medical treatment from 24 July 2008[2];
[2] Exhibit 6.
(d)in July 2011, she was retired on invalidity grounds and, thereafter, she was paid an invalidity superannuation pension;
(e)on 12 September 2013, acting on its own motion, Comcare reviewed the original determination to accept liability for Ms Rose’s claimed injury, and revoked it. The case manager, Annemarie Balzer, said –
“In view of the evidence, I am satisfied that you sustained a psychological ailment, which was significantly contributed to by your employment. However, I find that the circumstances of your claim fall within the exclusionary provisions of the Act. Therefore, I find that your claim for compensation is excluded under section 5A, and Comcare is not liable under section 14 of the Act to pay compensation to you in respect of your claimed condition.”[3]
[3] Reconsideration decision, 12 September 2013, page 9.
(f)on 12 September 2013, Ms Rose was reviewed by her treating psychiatrist, Dr Claire Pattison, who reported –
“When I reviewed her [Ms Rose] today, there was a recurrence of suicidal ideation and hopelessness. There are an increased and acute anxiety symptoms including chest pain which I have referred her for an ECG to further evaluate but I believe is likely secondary to stress related to the likely financial position and the possibility of ongoing legal proceedings.
I can only stress with the utmost urgency that these proceedings are putting Nancy under undue mental strain and I fear for her mental health and her safety in terms of suicide in relation to this…”[4]
[4] Exhibit 3, page 1.
(g)on 13 September 2013, Ms Rose applied for review of this decision;
(h)on 17 September 2013, she applied for an order staying operation or implementation of the decision;
(i)also on that day, Ms Rose consulted her treating psychologist, Sandra Lauffenberger, who reported her “concerns about Ms Rose’s current psychophysical state” and said –
“It is distressingly obvious that she has physically and emotionally regressed….
…
It is my opinion that Ms Rose is becoming retraumatised by recent events. I have grave fears that she will attempt more self harm or be successful in a suicide attempt…”[5]
(j)on 18 September 2013, I ordered that the period in which documents are to be filed under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) was shortened to 3 October 2013;
(k)at the hearing I was informed that, on or about 25 September 2013, Comcare decided to cease payment to Ms Rose of compensation for incapacity and medical treatment expenses;
(l)on 1 October 2013, Ms Rose’s carer, Jancsi, sent an email to her legal representative –
“This is to inform you that Nancy was admitted to the emergency psychiatric ward at the Canberra hospital that afternoon Tuesday October 1 at approx. 5pm. The admission was done under the mental health act due to the serious nature of Nancy’s current mental state, and after an interview conducted by the risk assessment team at Calvary hospital with consultation with Dr Pattison by telephone, together with a written referral by Dr Watson who saw Nancy at 1.30pm today…”[6].
[5] Exhibit 2, pages 1 and 2.
[6] Exhibit 1.
Comcare advanced three key points against the grant of a stay. Firstly, the financial and psychological hardship Ms Rose may suffer if the stay is refused will, in all likelihood, occur if the substantive decision under review is ultimately upheld by the Tribunal. This, Comcare says, is not a persuasive reason to grant a stay.
Secondly, if Ms Rose is not successful in her substantive application and a stay is granted, she will face a debt. In the event that the Chief Executive Officer of Comcare decides to recover the debt, Comcare says, “this may create significant hardship on the applicant who does not work and is invalidity retired”[7]. In Comcare’s submission, the difficulty Ms Rose may face in those circumstances raises a risk for Comcare that it may not be able to recover the debt, and these factors weigh against the desirability of granting a stay.
[7] Email letter of Ms Gerritsen, representing Comcare, dated 25 September 2013 opposing the stay application.
Thirdly, Comcare asserts that Ms Rose’s substantive application has little prospect of success, although Mr Dillon accepted that no detailed evaluation of this is possible at this juncture, on the scant materials presently before me. That notwithstanding, Comcare says that the factors identified in the reconsideration decision as falling within the terms of the exclusionary proviso of s 5A are sufficiently clear to raise serious doubts about the merit of Ms Rose’s application.
The Tribunal’s discretionary power to order a stay is set in subs 41(2) of the AAT Act. I was referred to several authorities concerning the interpretation and application of the discretion. The section is to be given a broad or liberal interpretation for the purpose of securing the effectiveness of the hearing and the determination of the application for review[8]. It requires the formation of an opinion about whether “it is desirable to [order a stay] after taking into account the interests of any of the persons who may be affected by the review”. The word ‘desirable’ has been construed to refer to a positive aspiration: something worthy of achievement rather than merely advisable[9]. When assessing the desirability of the order sought, any hardship likely to be suffered by either party, the likelihood of money being recovered if the applicant is ultimately unsuccessful, and the prospects of success of the substantive application should be considered[10].
[8] Shi v Migration Institute of Australia & Anor (2003) 134 FCR 326 at 332; Civil Aviation Safety Authority v Hotop [2005] FCA 1023.
[9] Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380 at 384.
[10] Re Artemis and Australian Postal Corporation (1998) 27 AAR 60 at 62; Re Repatriation Commission and Delkou (1985) 8 ALD 454 at 457.
Hardship
It is not possible to accurately assess Ms Rose’s financial position and the extent of any financial hardship she may experience if a stay is not granted. Nonetheless, even though Ms Rose did not give oral evidence, Exhibits 4 and 5 provide some indication of her financial circumstances. On this material, it appears that Ms Rose has relied upon two sources of income – weekly compensation payments for incapacity and weekly payments of invalidity superannuation pension. In respect of her annual income, Ms Rose said –
“In 2010 my annual income was $73238 (pretty sure by the time I was retired the amount was closer to $75k) but the total I receive from my PSS pension and Comcare is around $53k which is not 75% of my income.
Proceeding on the basis of this evidence, it appears that Ms Rose’s annual income from her invalidity pension and weekly compensation for incapacity is approximately $53,000. Records of the weekly compensation that was paid to her is in Exhibit 6. This indicates, for example, that in the 2012-13 financial year, Ms Rose was paid $11,839.45 in weekly compensation payments. If that is correct, her annual superannuation invalidity pension would be approximately $41,000. I will proceed on that basis, even though there is no direct evidence of the rate or the annual amount of her superannuation pension.
Ms Rose owns the house in which she resides, albeit with a mortgage of $300,000. She pays $38 per month in loan insurance; $1000 annually in rates; and $1,200 in annual home insurance premiums. Her fortnightly expenses include –
“$1000 mortgage
$100 elect, gas, water etc
$65 phone
$65 home phone and Internet
$40 Jansci phone
$30 health insurance”
On this evidence, Ms Rose’s annual costs, excluding food, medical treatment and other expenses would be $36,456.
If this amount is to be paid from her superannuation pension income alone, Ms Rose would be left with an annual amount of $4,544, or $88 per week, to cover her food, medical treatment and other expenses.
The Comcare records of amounts paid by way of compensation for medical treatment expenses in 2012-13 reveal that Ms Rose consulted Ms Lauffenberger on 33 occasions at a cost of $210 per consultation, Dr Pattison on 10 occasions at a cost of $315 or $325 per consultation, and her general practitioner on 27 occasions at a cost of $130 or $198 per consultation. The records reveal extensive pharmacological and other treatments that were paid for by Comcare during this period. It is quite clear that the annual cost of Ms Rose’s medical treatment in 2012-13 was over $15,000. What proportion of this cost might be covered by Medicare, the Pharmaceutical Benefits Scheme, publicly subsidised services or by Ms Rose’s private health insurance I cannot determine – there is simply insufficient evidence for this purpose. It is probable, nonetheless, that a proportion of her medical treatment expenses would be covered and a proportion would not – if, for example, 80 percent of her treatment costs were covered, she would be liable to pay 20 percent, or approximately $3,000 annually. Were that to be correct, Ms Rose would be left with less than $30 per week on which to live.
Even though there are doubts about the accuracy of these estimations of Ms Rose’s income and expenses, I am reasonably satisfied that if she is forced to rely of her superannuation pension income, alone, she is likely to experience some degree of financial hardship. Whether this would go so far as to force her to sell her home I cannot determine.
Perhaps the most important point for present purposes is that, to my mind, the effectiveness of the Tribunal hearing and proceedings would be placed at risk if Ms Rose is not able to afford medical treatment. The evidence of Ms Lauffenberger and Dr Pattison is compelling on this point. While it is not beyond doubt, I am satisfied that there is a real risk Ms Rose may not be able to afford the kinds of psychiatric and psychological treatment she clearly requires if a stay is not granted.
Recovery of debt
Much was said during the hearing about overpayment debts that Ms Rose will face if she is not successful in her application. It is quite clear that she will face a very substantial debt if a stay is not granted. On the records in Exhibit 6, it appears that Comcare has paid compensation totalling $396,875 as of 22 July 2013. If Ms Rose does not succeed, this amount would be a debt for which she is liable that may be recovered under s 114 of the SRC Act.
If the stay is granted and she is ultimately unsuccessful, she will be exposed to a further debt that may be recovered – if the proceedings were to take one year, the additional debt would be in the order of $26,000 on the basis of the amounts of compensation paid in 2012-13.
On Ms Rose’s estimation, the value of her house is $500,000 against which she owes $300,000, leaving her with equity of $200,000. Clearly, this would not be sufficient to repay the total debt, even if a stay is not granted.
The risk of Comcare not being able to recover the debt is quite real on these figures. The proposition that Ms Rose would be able to cover the debt arising if a stay is granted and she is not ultimately successful in her application can only stand if the debt that would arise in respect of the preceding period from 2008 is excluded.
It is not presently established that Comcare would move to recover any such debt. There is discretion in the Chief Executive Officer of Comcare to write off or to waive the debt under s 114C or s 114D of the SRC Act. No such decision has yet been made.
Merit
As to the merit of Ms Rose’s application, there are two things to say. Firstly, it is not appropriate or possible, presently to conduct a preliminary hearing of the issues and test the evidence. There is very little evidence on which to make an assessment.
Secondly, examination of the primary determination and the reconsideration decision does not put this question beyond doubt. It appears that three exclusionary factors are said to have contributed to Ms Rose’s psychiatric disease – failure to obtain Additional Responsibility Pay; failure to obtain Unit Security Duties; and a request to complete spreadsheets. To my mind, there are live medical questions about the extent to which each of these (or any other) actions contributed to Ms Rose’s disease. That being so Ms Rose’s application is not without any merit or prospect of success.
This conclusion is reinforced by Comcare’s decisions – the primary decision-maker assessed the evidence and concluded that the claimed injury was not excluded under s 5A, whereas the reconsideration decision maker, five years later, came to a different conclusion. It is not clear whether Comcare obtained fresh evidence that informed the reconsideration decision. The subject events occurred prior to 2008. If it did obtain fresh evidence, that evidence will come forward to be tested. If it did not, and two decision makers have come to different conclusions on the same material, the matter hangs in the balance.
If a stay is granted and Ms Rose is in a position to bring evidence to bear, testing the exclusionary elements pressed by Comcare, if she succeeds she may improve her position by a substantial degree. On this point, in addition to the overt factual differences, the case of Re Clement and Comcare[11] is distinguished.
[11] [2006] AATA 705.
Other matters
There are two further matters I feel compelled to mention.
The first arises from the effluxion of time between Comcare’s primary determination accepting liability to pay compensation to Ms Rose for her psychiatric injury, and the decision to revoke that acceptance five years later. It concerns prejudice and the public interest.
It must be said immediately, that Comcare has power under s 62 of the SRC Act to reconsider a primary determination, including acceptance of liability for an injury under s 14, at any time. Nonetheless, Comcare is to be guided by ‘equity, good conscience and the substantial merits of the case, without regard to technicalities’ (s 72(a)) when determining claims and it is ‘to make determinations accurately and quickly in relation to claims’ (s 69(a)).
With these requirements in kind, it is germane to consider what McHugh J said in Brisbane South Regional Health Authority v Taylor[12], albeit in relation to time limitations (which clearly do not apply here) –
“The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates." Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.” [references omitted][13]
[12] (1996) 186 CLR 541.
[13] Ibid, at 551.
In this case, the delay of five years may well place Ms Rose in a position of prejudice. The events now pressed as exclusionary occurred more than five years ago. They occurred in employment she no longer holds. Memories and knowledge of those events may well have faded or become coloured or occluded over time. It is for these reasons that the longer the delay in reconsidering an earlier determination, the greater caution might be exercised when assessing whether the determination is flawed by error of law or fact. To my mind, if the trigger for reconsideration is simply that different minds may reach a different conclusion on the same evidence, where years have passed, one might expect some reticence to re-open matters previously decided and left to rest in the absence of just cause. The longer the delay, the greater the justification necessary to counter increasing prejudice. Commonly, this would involve the identification of incontrovertible error, or some fresh evidence, or a change in the law. In these matters equity, good conscience and substantial merit must also be considered.
Those considerations require the circumstances and the likely effect of an adverse decision on the person who has had the benefit of compensation pursuant to the original determination to be taken into account when weighing up whether to proceed with a reconsideration decision. This is especially so in the case of a person who has an unresolved mental illness that has been significantly contributed to by the particular employment. Such a person who, through no omission or fault of their own, faces a sudden change in long established entitlement, is likely to be at greater risk of harm that another who is without a mental affliction.
To my mind, the public interest in the effective and timely administration of justice is sharply illuminated in a case such as this.
The second matter relates to s 33(1AA) of the AAT Act, whereby the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding. Aside from issues of expedition, to which I will briefly return, the point of primary consideration for present purposes is ensuring that both sides have a reasonable opportunity to present their case. This is one element of securing the effectiveness of the hearing that is relevant when determining a stay application in a case such as this.
Conclusion and decision
Weighing the competing factors, I am satisfied that it is desirable to grant Ms Rose’s application and to stay operation and implementation of the decision under review, subject to further order.
The primary reason for this is that I am satisfied there is a risk, perhaps even a substantial likelihood, that Ms Rose may not be in a position to obtain medical treatment she so clearly requires if a stay is not granted, thereby placing the security of the hearing at risk. It is desirable for this to be avoided, even though in the final result it may mean that Ms Rose is paid a greater amount of compensation to which she may have no entitlement, and she may face a greater debt.
In granting the stay, it is clear that this matter should proceed as expeditiously as is reasonable to hearing. Both parties have agreed to facilitate this. A preliminary conference is listed with a conference registrar on 14 October 2013. A timetable for evidence to be brought forward will be set. If the application is not settled by agreement at the conference, hearing certificates are to be issued thereafter with the intention of listing the matter to be heard at the earliest convenient date this year.
I certify that the preceding 36 (thirty six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
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Associate
Dated 11 October 2013
Date of hearing 2 October 2013 Counsel for the Applicant David Richards Advocate for the Applicant Bill Redpath Solicitors for the Applicant Blumers Lawyers Counsel for the Respondent Andrew Dillon Advocate for the Respondent Elinore Gerritsen Solicitors for the Respondent Australian Government Solicitor
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