Ramalingam and Comcare (Compensation) [2024] AATA 3272 (27 August 2024)
DIVISION:GENERAL DIVISION
2022/9856File Number:
Re:Shankar Ramalingam
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:27 August 2024
Place:Canberra
The decision under review is set aside, and in substitution thereof the Tribunal decides, as of 25 July 2022 and presently, Comcare is liable to pay Mr Ramalingam compensation in respect of his injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
Many years ago, Shankar Ramalingam was injured in his employment by the Australian Agency for International Aid (AusAid). After more than 20 years, Comcare decided, by primary determination and on reconsideration, Mr Ramalingam no longer suffered from the injury and he was no longer entitled to compensation for medical treatment expenses and incapacity for work. Mr Ramalingam lodged an application for review of this decision by the Tribunal.
In recognition of the difficulties a person such as Mr Ramalingam faces when representing themselves in proceedings of this kind, without a detailed knowledge of the applicable procedures, law or Tribunal processes, and with a mental illness, a good deal of latitude was allowed. This was done to ensure Mr Ramalingam was given a reasonable opportunity to present his case: to ask questions, to adduce and test relevant evidence, and to make submissions.
Mr Ramalingam decided not to give oral evidence during the hearing. Before making this decision, the significance and consequence of doing so was explained and he was given an opportunity to ask questions. Consequently, Mr Ramalingam’s version of events arises only from his untested documents in evidence.
Facts
In order to address the issues raised by the parties in this review, it is necessary to consider the lengthy history, causes and treatment of Mr Ramalingam’s…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ramalingam and Comcare (Compensation) [2024] AATA 3272
Case
[2024] AATA 3272
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Mr. Ramalingam against a decision by Comcare regarding his claim for workers' compensation for a psychiatric ailment. The dispute centred on whether Mr. Ramalingam's employment contributed to his condition to a material degree, thereby establishing Comcare's liability to pay compensation. The case was heard by Mr. S. Webb, a Member of the Tribunal.
The primary legal issues before the Tribunal were to determine whether Mr. Ramalingam suffered from an "injury" as defined by the relevant legislation, and if so, whether his employment had contributed to this condition to a material degree. This involved assessing the nature of his psychiatric ailment, its origins, and the extent to which work-related factors played a role in its development and continuation, considering the various medical opinions presented.
The Tribunal considered extensive documentary evidence, including reports from treating psychiatrists and medico-legal experts. It noted that Mr. Ramalingam did not give oral evidence, meaning his account of events was solely from untested documents. The Tribunal found that Mr. Ramalingam suffered from an Adjustment Disorder, to which his employment contributed materially, establishing an "injury" for the purposes of the SRC Act. The Tribunal placed significant weight on the opinions of Dr. Adesanya, who had treated Mr. Ramalingam over many years, finding his therapeutic basis for diagnosis and treatment more persuasive than the opinions of a single-consultation medico-legal expert. The Tribunal concluded that Comcare's submissions were not made out.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Mr Ramalingam decided not to give oral evidence during the hearing. Before making this decision, the significance and consequence of doing so was explained and he was given an opportunity to ask questions. Consequently, Mr Ramalingam’s version of events arises only from his untested documents in evidence.Facts In order to address the issues raised by the parties in this review, it is necessary to consider the lengthy history, causes and treatment of Mr Ramalingam’s psychiatric ailment and related compensation. The following findings are made on the evidence, applying the reasonable satisfaction standard. On 26 March 2001, Mr Ramalingam commenced employment as an Authorising Officer at the APS 5 level in the Financial Systems and Accounts Unit of AusAid. Issues arose in respect of Mr Ramalingam’s alleged treatment, conduct and performance in this employment. These are extensively set out in a previous Tribunal decision, Ramalingam and Comcare [2004] AATA 385 (1st Tribunal decision), at [23]-[24] and [46]. [1] [1] Exhibit 2, Tab 14, folios 531-533 and 540-545. In the 1st Tribunal decision, the Tribunal found on 25 January 2002 Mr Ramalingam consulted Dr Phillip Hope, a general practitioner, who recorded ’work stresses, headache/dizziness one to two months’.[2] The Tribunal decided Mr Ramalingam suffered from an Adjustment Disorder at that time.[3] The Tribunal applied s 7(4) of the SRC Act and found 25 January 2002 to be the date of injury before determining the existence of an ‘injury’ for which Comcare was liable under s 14 of the SRC Act. This is not consistent with subsequent authority (Smith v Comcare [2013] FCAFC 65 at [34]), but the error is presently immaterial as the key point of relevance is that the Tribunal found (at [26]) Mr Ramalingam suffered from an Adjustment Disorder to which his employment contributed to a material degree. This amounted to an ‘injury’ for the purposes of the SRC Act.[2] Ibid, folio 539; T18, folio 70.[3] Ibid, folios 539-540. On 12 February 2002, Mr Ramalingam was examined by Dr Ahmad Farshid, a cardiologist, who reported:An ECG performed on 30 January 2002 was reported as showing possible inferior myocardial infarction.…Today … His ECG showed normal sinus rhythm with no significant Q-waves to suggest previous myocardial infarction. He was further evaluated with an exercise stress test… his exercise tolerance was within normal limits and no evidence of exercise induced myocardial ischaemia was detected.… The issue of stress at work will also be addressed by him. I have reassured him about his heart and I did not think there was any evidence of previous myocardial infarction.[4] [4] T4, folios 10-11. On 10 May 2002, Dr Stephen Rosenman, a psychiatrist, examined Mr Ramalingam and on 13 May 2002 reported:He is certainly bothered by symptoms of anxiety, sleep disturbance and agitation which is quite consistent with the current pressures on him. He feels unjustly criticised, undermined and threatened in his current job. In fact he is now threatened with termination of his position. The pressures he faces are real and his response appear understandable as an adjustment reaction.[5] [5] T47A, folio 212.
Evidence
Evidence Before The Court
As will appear, I am not persuaded Comcare’s submissions are made out.Opinion evidence At this point, it is necessary to make some observations about opinion evidence. No doubt, to some degree the formulation of opinion about the diagnosis and causes of Mr Ramalingam’s psychiatric ailment hinges on the nature, extent and quality of relevant information, including his self-report of symptoms. Commonly, it is for this reason, at least in part, that the opinions of treating psychiatrists and psychiatrists briefed for medico-legal reasons to give expert evidence in legal proceedings often diverge. Many are the cases in which disputation about such matters is centred around the alleged independence, or lack thereof, of the particular witness, where professional opinion formed within a therapeutic relationship is held up against expert opinion purchased for medico-legal purposes, and where therapeutic knowledge, experience and judgment in the particular case is weighed against expert evidence and reasoning. In this case, Dr Adams examined Mr Ramalingam on one occasion (on 22 April 2022) and she produced two medico-legal reports for Comcare. The doctor was briefed with extensive materials obtained by Comcare and produced under summons in the course of the Tribunal proceedings,[68] including reports by Mr Ramalingam’s treating psychiatrists. Consequently, following a single consultation with Mr Ramalingam, Dr Adams formulated opinions about the diagnosis, origin, progress and contributory causes of Mr Ramalingam’s psychiatric ailment and related matters from a medico-legal perspective. These opinions were tested in oral evidence.[68] Briefing materials are cited by Dr Adams at T36, folios 159-160 and Exhibit 2, Tab 8, folios 424-425. I note in passing that Dr Bhattacharyya was also briefed by Comcare[69] to produce a report and the doctor agreed to be bound by the Expert Witness Code of Conduct[70], but the doctor’s opinions could not be tested as she was not called to give evidence.[69] Briefing materials are cited by Dr Bhattacharyya at T47I, folio 226.[70] T47I, folio 234. In all likelihood, many of the briefing materials given to Dr Adams for the purposes of her second report were not available to Dr Adesanya when treating Mr Ramalingam and preparing the reports which are in evidence. Matters arising from the materials and Dr Adams’ opinions could not be put to Dr Adesanya as he was not called to give oral evidence in these proceedings. I pause to note Dr Adesanya was asked to provide a report to Comcare in response to Dr Adams’ first report,[71] but the fee Dr Adesanya required for doing so was not accepted by Comcare.[72] Nevertheless, a number of Dr Adesanya’s reports are in evidence, without objection. [71] T38.[72] T44, folio 193. Dr Adesanya has treated Mr Ramalingam over many years, from 3 April 2013. In the therapeutic context of his role as a psychiatrist treating Mr Ramalingam, when formulating diagnoses and appropriate treatment, it is expected the doctor would have exercised clinical judgment informed by Mr Ramalingam’s account of symptoms he experienced, his clinical examinations and progressive knowledge of Mr Ramalingam, as well as relevant available materials. So much can be inferred from the reports and other records of Dr Adesanya which are in evidence. Matters of this kind provide a therapeutic basis for the formulation of Dr Adesanya’s opinions about the diagnosis, origins, progress and contributory causes of Mr Ramalingam’s psychiatric condition over time.
Decision
Reasons for decision
Issues arose in respect of Mr Ramalingam’s alleged treatment, conduct and performance in this employment. These are extensively set out in a previous Tribunal decision, Ramalingam and Comcare [2004] AATA 385 (1st Tribunal decision), at [23]-[24] and [46]. [1] [1] Exhibit 2, Tab 14, folios 531-533 and 540-545. In the 1st Tribunal decision, the Tribunal found on 25 January 2002 Mr Ramalingam consulted Dr Phillip Hope, a general practitioner, who recorded ’work stresses, headache/dizziness one to two months’.[2] The Tribunal decided Mr Ramalingam suffered from an Adjustment Disorder at that time.[3] The Tribunal applied s 7(4) of the SRC Act and found 25 January 2002 to be the date of injury before determining the existence of an ‘injury’ for which Comcare was liable under s 14 of the SRC Act. This is not consistent with subsequent authority (Smith v Comcare [2013] FCAFC 65 at [34]), but the error is presently immaterial as the key point of relevance is that the Tribunal found (at [26]) Mr Ramalingam suffered from an Adjustment Disorder to which his employment contributed to a material degree. This amounted to an ‘injury’ for the purposes of the SRC Act.[2] Ibid, folio 539; T18, folio 70.[3] Ibid, folios 539-540. On 12 February 2002, Mr Ramalingam was examined by Dr Ahmad Farshid, a cardiologist, who reported:An ECG performed on 30 January 2002 was reported as showing possible inferior myocardial infarction.…Today … His ECG showed normal sinus rhythm with no significant Q-waves to suggest previous myocardial infarction. He was further evaluated with an exercise stress test… his exercise tolerance was within normal limits and no evidence of exercise induced myocardial ischaemia was detected.… The issue of stress at work will also be addressed by him. I have reassured him about his heart and I did not think there was any evidence of previous myocardial infarction.[4] [4] T4, folios 10-11. On 10 May 2002, Dr Stephen Rosenman, a psychiatrist, examined Mr Ramalingam and on 13 May 2002 reported:He is certainly bothered by symptoms of anxiety, sleep disturbance and agitation which is quite consistent with the current pressures on him. He feels unjustly criticised, undermined and threatened in his current job. In fact he is now threatened with termination of his position. The pressures he faces are real and his response appear understandable as an adjustment reaction.[5] [5] T47A, folio 212. In the 1st Tribunal decision, the Tribunal found Mr Ramalingam was subject to disciplinary action on and after 29 May 2002, including the termination of his employment, but these actions did not have an exclusionary effect because Mr Ramalingam’s Adjustment Disorder commenced in January 2002.[6] [6] Exhibit 2, Tab 14, folios 546-547. On 29 May 2002, AusAid terminated Mr Ramalingam’s employment.[7] Subsequently, Mr Ramalingam commenced proceedings in the Fair Work Commission.[7] T5, folio 18. On 31 May 2002, Mr Ramalingam signed a claim for compensation for ‘anxiety/insomnia/depression caused by work related stress’ which he first noticed on ‘23/01/02’ and for which he first sought treatment from Dr Hope on 25 January 2002.[8][8] Ibid, folios 14 and 17.