XBBS and Comcare (Compensation)
[2018] AATA 4041
•25 October 2018
XBBS and Comcare (Compensation) [2018] AATA 4041 (25 October 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) No: 2015/6808;
)2015/6809;
GENERAL DIVISION ) 2015/6810; and
)2017/4725.
Re: XBBS
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Member Mark Hyman DATE OF CORRIGENDUM: 30 October 2018 PLACE: Canberra The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- The word, ’Peter’, appearing in paragraph 1, is changed to ‘Michael’.
………………………………..
Member Mark HymanDivision:GENERAL DIVISION
File Number(s): 2015/6808, 2015/6809, 2015/6810, 2017/4725
Re:XBBS
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mark Hyman, Member
Date:25 October 2018
Place:Canberra
The tribunal’s jurisdiction with respect to the applicant’s psychiatric condition extends only to that condition as secondary to the applicant’s physical condition.
........................................................................
Mark Hyman, Member
Catchwords
COMPENSATION – jurisdiction – where the applicant has claimed both physical and psychiatric injuries - whether the applicant’s psychiatric condition is a primary condition or secondary to the physical condition – factors deciding the jurisdiction of the tribunal on review - claim form and related documentation – interaction between the applicant’s physical and psychiatric conditions – obligation on the tribunal in decision-making - where a claim form for the psychiatric condition has not been found – whether inference may be drawn from the absence of the claim form – where psychiatric condition consistently presented to Comcare as a secondary condition – tribunal’s jurisdiction limited to the psychiatric condition as a secondary condition
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 38AA, 43Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 24, 27, 53, 54, 61, 62, 63, 64, 69, 71, 72
Cases
Abrahams and Comcare [2006] FCA 1829
Australian Postal Corporation v Sellick [2008] FCA 236
Beezley v Repatriation Commission [2015] FCAFC 165
Blatch v Archer (1774) 1 Cowp 64; [1774] Eng R2; (1774) 96 ER 969.
Brown and Repatriation Commission [2004] AATA 1262
Comcare vBromham [2017] FCA 174
Comcare v Mooi [1996] FCA 1587
Comcare v Muir [2016] FCA 346
de Gail and Comcare [2018] AATA 2309
Durham and TNT Australia [2011] AATA 802
Energy Australia v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146
Kennedy v Comcare [2014] FCA 82
Lees v Comcare [1999] FCA 753
Secretary to the Department of Justice and Regulation v Bhatia [2018] VSC 500
Smith v Comcare [2013] FCAFC 65
Szabo v Comcare [2012] FCAFC 129
Telstra v Barrow (1994) 35 ALD 461
Toyota Motor Corporation v Marmara [2014] FCAFC 84
West Tamar Council v Resource Management and Planning Appeal Tribunal [2015] TASFC 12
REASONS FOR DECISION
Mark Hyman, Member
25 October 2018
The applicant in this matter, known by the pseudonym XBBS, has applied to the tribunal for review of four reconsideration determinations made by the respondent, Comcare. The matter was listed to be heard on 22-24 August 2018. At the hearing the applicant was represented by Mr Christopher Ryan of Counsel, briefed by Dwyer Lawyers, and the respondent by Mr Peter Snell of Counsel, briefed by Lehmann Snell Lawyers.
At the commencement of the hearing, following the opening statement by counsel for the applicant, counsel for the respondent raised a question of jurisdiction. The applicant’s conditions for which compensation is contested comprise a physical and a psychiatric condition. The outline of the applicant’s case was presented on the basis that the psychiatric condition was a primary condition arising from some or all of the same workplace factors which are argued to have caused the applicant’s physical condition. The respondent contested this presentation, arguing that the psychiatric condition is, or must be considered to be, a secondary condition, as that is the way the claim has been made to Comcare; and that the tribunal’s jurisdiction on review is therefore limited to dealing with the psychiatric condition as a secondary condition.
Argument proceeded on the jurisdictional issue. I made an oral ruling, relying on the documents available to me, that the psychiatric condition was a secondary condition which had not been agitated in the original claim made on Comcare. Following that ruling, the hearing proceeded, beginning with the applicant’s evidence. As that continued, it became apparent that the documents before me did not include some that appeared likely to be not only relevant to the range of issues to be decided, but also quite possibly to the jurisdictional question on which I had already ruled. Some papers came forward through being tendered by the applicant during the applicant’s examination-in-chief; these were papers that clearly should have been included in the documents (the “T-documents” and supplementary T-documents) provided under sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the AAT Act). It also transpired that Comcare had sought and received records from Calvary Hospital, the applicant’s employer, under section 71 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), but had provided them neither to the tribunal nor to the applicant.
The applicant’s examination in chief was completed on 23 August 2018. The matter was adjourned, and missing documents were subsequently provided (including through a thorough search of Comcare files to ensure that no further papers were omitted). The hearing resumed on 6 October 2018. The applicant gave additional evidence (in the light of some of the additional documentation provided) and was cross-examined, the latter only in respect of the jurisdictional question. Mr Ryan said that at that point the applicant’s evidence in chief was complete, regardless of how the jurisdictional issue is resolved, but Mr Snell has limited his cross-examination to the jurisdictional issue, and may need to resume it in respect of other matters when the hearing proceeds.
In addition to the evidence adduced orally, the tribunal has available to it the documentation provided under sections 37 and 38AA of the AAT Act, as supplemented; the documents provided under section 71 of the SRC Act; and a number of exhibits as set out in the following table:
Exhibit number
Date
Document
A1
10 August 2017
Correspondence between the applicant and Dr Minh Nhut Ho
A2
-
Applicant’s annual leave 2001-2005
A3
5 July 2006 (leave calculator)
Workload description, leave calculator and record of leave
A4
24 September 2003
Letter from Dr Garth Eaton to Dr Minh Nhut Ho
A5
23 September 2005
Letter from respondent to Canberra Injury Management
A6
23 September 2005
Letter from respondent to applicant
A7
21 October 2005
Leave application by applicant
A8
27 October 2016
Procedural pain chart
A9 16 May 2014 Medical certificate and covering email from employer to respondent R1
16 May 2014
Same document as exhibit A9
Not all the listed exhibits are referred to in this decision, as in some cases they were brought forward in the context of the applicant’s substantive case rather than the jurisdictional issue the subject of this decision.
The jurisdictional question bears in particular on one of the decisions for which review has been sought, but the matters are to some degree intertwined. For the purposes of clarity, it is perhaps as well to spell out what each of the applications for review relates to, and in turn, the matters covered by each of the reconsideration determinations (i.e. the reviewable decisions) for which the applicant has sought review. Two of the four applications concern questions of compensation in respect of the physical injury characterised as “aggravation of intervertebral disc disorder – cervical region (right)” (the physical condition); two relate to the psychiatric condition characterised as “depression” (the psychiatric condition).The four matters are as follows:
(a)the applicant sought review of three decisions made on 2 September 2015. In that single reconsideration determination (T141) the respondent affirmed three earlier determinations:
(i)A determination dated 20 October 2014 (T120) denying compensation under sections 24 and 27 of the SRC Act for permanent impairment and non-economic loss in respect of the physical condition (2015/6808);
(ii)A determination dated 14 November 2014 (T123) denying compensation under section 14 of the SRC Act for any of death, incapacity or impairment in respect of the psychiatric condition (2015/6809); and
(iii)A determination dated 1 July 2015 (T135) denying compensation at the date of the decision under sections 16 and 19 of the SRC Act for medical expenses and incapacity for the physical condition (2015/6810).
(b)The applicant sought review of a further reconsideration determination dated 28 July 2017 (ST14), affirming an earlier determination made on 9 January 2017 (ST11), denying compensation under sections 24 and 27 of the SRC Act for permanent incapacity and non-economic loss in respect of the psychiatric condition (2017/4725).
ISSUE
The sole issue before the tribunal at this point is the extent of the tribunal’s jurisdiction: that in turn depends on whether the applicant’s psychological claim is a primary claim or a secondary claim arising from the primary physical condition claimed.
Naturally, a further possibility arises, namely that the claimed psychological condition arises from another cause. In that case a new claim would be needed. But the tribunal’s jurisdiction in the present review arises from the reviewable decision, and the only issue agitated before the tribunal is whether the condition considered in that decision is a primary or secondary condition.
THE LEGAL PRINCIPLES
The legislation governing this matter is the SRC Act, which provides for compensation to be paid in respect of injuries occasioned by employment. The process for making a claim for compensation is set out in Part V of the Act. Section 53 states that the Act does not apply to an injury to an employee unless written notice of an injury is given to the appropriate authority as soon as practicable after the injury. Section 54 states that compensation is not payable unless a claim is made in accordance with the approved form and accompanied by a medical certificate; substantial rather than strict compliance with the requirement to make a claim in accordance with the approved form is sufficient.
Part VI of the SRC Act deals with review of claims. Section 61 requires a determining authority, having made a determination, to provide notice to the claimant with reasons and advice on rights of review. Section 62 allows a determining authority, on its own motion or at the request of the claimant or another interested party (such as the employer), to reconsider a determination made under section 61; a request for reconsideration must set out the reasons for the request. The result of reconsideration is a decision affirming, revoking or varying the determination. Under section 63, notice of and reasons for a decision taken under section 62 (defined as a “reviewable decision” in section 60) must be provided to the claimant along with information about rights of review by this tribunal. Section 64 provides for applications to be made to the tribunal for review of reconsideration decisions (i.e. those taken under section 62).
The tribunal’s jurisdiction with regard to a claim, then, is determined by the scope of the reconsideration determination, since that is the decision the tribunal reviews; the scope is in turn influenced by the terms in which the claimant made the claim. Subsection 43(1) of the AAT Act gives the tribunal, for the purposes of undertaking its review, all the powers and discretions conferred on Comcare by the SRC Act.
Under paragraph 69(a) of the SRC Act Comcare is to determine claims accurately and quickly; under section 72, Comcare, in doing so, is to be guided by “equity, good conscience and the substantial merits of the case, without regard to technicalities”.
There is a substantial body of case law dealing with the scope of the tribunal’s jurisdiction, especially where there is variation in the scope suggested in the claim and associated documents, the initial determination and the reconsideration determination. I have recently had occasion to decide similar matters of jurisdiction in two other cases, namely Poignand and Comcare [2018] AATA 3864 and Boateng and Comcare [2018] AATA 3198. The outline below closely follows that put forward in those two cases.
It is clear that new claims entirely outside the scope of the reconsideration determination, introduced at the level of the tribunal’s review, will normally lie outside jurisdiction: Lees v Comcare [1999] FCA 753. But the cases considered here involve matters that do not unambiguously fall either within or outside the tribunal’s apparent jurisdiction. In Abrahams and Comcare [2006] FCA 1829 (Abrahams), Madgwick J, asserting that it was reasonable to allow a claim to be flexibly interpreted, enunciated the following principles (at [18]):
1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.
2. In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.
3. The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given.
4. Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given.
5. There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.
Other cases dealing with related issues include Comcare v Muir [2016] FCA 346 (Muir); Szabo v Comcare [2012] FCAFC 129 (Szabo); Durham and TNT Australia [2011] AATA 802 (Durham); Kennedy v Comcare [2014] FCA 82 (Kennedy); Australian Postal Corporation v Sellick [2008] FCA 236 (Sellick), Smith v Comcare [2013] FCAFC 65 (Smith) and Comcare vBromham [2017] FCA 174. In each case the scope of jurisdiction turns on the particular facts of the matter, but some general rules can be discerned:
·a broad approach should be taken to determining the scope of the claim (and therefore, potentially, the tribunal’s jurisdiction on review) (Abrahams at [18]; Kennedy at [53]);
·it is up to the tribunal to determine the scope of its jurisdiction; it is not constrained by the way the authority such as Comcare has chosen to construe the claim (Durham at [51]-[53]);
·the tribunal on review has the same powers as the reviewing decision-maker and the original decision maker (Abrahams at [16]);
·the claim must be construed as a whole, drawing not only on the claim itself but also on the notice of injury, medical certificate and other documentation submitted at the time (Durham at [60]);
·the scope of the claim aligns with the claimant’s condition as determined through later investigations, rather than being limited to the condition originally nominated on the claim form (Abrahams at [20]-[23]);
·the circumstances of the case, and the nature of the condition for which compensation is claimed, may necessitate that the period in which causation is explored is well beyond the dates mentioned in the claim form (Smith at [38] (Buchanan J)).
But the scope to adjust the tribunal’s jurisdiction to accord with the claim and the development of the condition covered by the claim is quite constrained. Most cases involve either temporal extension (to dates before or after the date of initial injury notified on the claim form) or to conditions different from those nominated on the form:
·where the applicant has consistently claimed and pursued a claim on a narrow basis, that may have the effect of limiting the scope of the claim and therefore the tribunal’s jurisdiction on review (Szabo at [35]-[40], Muir at [37]);
·the flexibility available to the tribunal in determining its jurisdiction does not extend to allowing a claimant to re-characterise a claim to avoid the effect of exclusionary and other provisions (such as the “reasonable administrative action” exclusion in section 5A of the SRC Act) (Muir at [30]);
·any extension of the scope of a matter must logically flow from the facts, and adequate reasons must be given, for example to justify inclusion of a secondary condition, or the tribunal is at risk of exceeding its jurisdiction (Sellick at [70]-[72]).
The tribunal’s jurisdiction arises under section 64 of the SRC Act; the extent of the jurisdiction is decided by the reconsideration determination (section 62 of the SRC Act), which in turn is governed by the initial determination and before that by the scope of the original claim and the documents associated with it (sections 53, 54 of the SRC Act). The authorities quoted above suggest that some flexibility attends the determination of the scope of a claim, with adjustments being made for such matters as the outcome of investigations of a person’s medical condition and the way in which the medical condition may have developed over time. But it is clear that it is for the tribunal, in reviewing a reconsideration determination, to decide the scope of its jurisdiction; it is not limited to or bound by the scope adopted by Comcare.
Mr Ryan also took me to some relevant authorities, in particular Telstra v Barrow (1994) 35 ALD 461 (Barrow). In that case the applicant, Mr Barrow, lodged a claim in 1991 for compensation for “cervical spondylosis cervical spine C3 to C7”, with a date of 1983 to 1985, when Mr Barrow was a pneumatic rock driller. Telstra accepted liability only for an aggravation of an existing and underlying cervical spondylosis. Mr Barrow had also suffered a motor vehicle accident in 1987 while returning home from work for which he had separately received compensation, not under the SRC Act. The court that heard the matter awarded compensation only for lumbar injuries, on the basis of medical evidence.
Mr Barrow sought review before this tribunal of Telstra’s decision on compensation for his cervical injury. In the course of preparation for the hearing additional medical evidence in the form of a CT scan revealed for the first time a prolapsed disc in the cervical spine, which in the opinion of the relevant medical expert arose from the 1987 motor vehicle accident and contributed significantly to Mr Barrow’s neck pain. The tribunal awarded compensation for the aggravation of cervical spondylosis caused by both the rock drilling in 1983-85 and the motor vehicle accident in 1987. On appeal to the Federal Court Telstra argued that the tribunal’s jurisdiction extended only to the injuries arising in 1983-85 and did not cover the motor vehicle accident. The court (Carr J) held that as the question being considered by the tribunal – whether the cervical spondylosis was compensable under section 14(1) of the SRC Act – was unchanged, the tribunal’s jurisdiction extended to the change in causation (at [27]):
It must be acknowledged that Mr Barrow's claim to compensation was based on an injury described as cervical spondylosis caused by carrying out the activities described above ... between March 1983 and May 1985. However, in deciding whether Mr Barrow was entitled to compensation, the initial decision-maker was not confined to the claim or the materials put forward by Mr Barrow. He would have been entitled to require Mr Barrow to undergo a medical examination or to provide further information or copies of relevant documents: see ss.57 and 58 of the Act. Furthermore, the decision-maker in performing that function is required to "be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities" and to "make determinations accurately and quickly": see ss.72(a) and 69(a) respectively. If the decision-maker had at that time the benefit of the CT Scan and Mr Williams' opinion as to the aggravation of Mr Barrow's cervical spondylosis the cause of that aggravation and thus the cause of his various symptoms, in my opinion he would have been entitled and probably obliged to make the determination which was eventually made by the Tribunal. … it would not be in accordance with the provisions referred to above for the decision-maker to refuse to make such a determination because Mr Barrow had not referred to the disc protrusion in his claim form (particularly as neither he nor any of the physicians who had examined him were aware of it) and to require him to submit a further claim form. In my view, the same would apply at the reconsideration stage and when the matter came before the Tribunal.
THE ARGUMENTS OF THE PARTIES
The applicant argues that from the lodgement of the claim up to the present, psychological elements have been visibly present and clearly identified. It was squarely before Comcare from the time the claim was originally lodged that there was a psychological element to the claim and any conscientious administrator was obliged to deal with the claim accordingly. That Comcare did not do so was a comment on the narrowness of Comcare’s perspective and inconsistent with the requirements of sections 69 and 72 of the SRC Act. There had always been a psychological condition, which was a primary condition arising from stress and pressure in the workplace, but Comcare had overlooked or ignored it. That claim remained within the tribunal’s jurisdiction on review.
The respondent argues that Comcare was entitled to process the claim made by the applicant on the basis of the information and related material put to it. That was initially entirely in terms of a physical injury. When it became apparent that there was a psychological condition to be taken into account, that condition was presented from the start as a secondary condition arising from the physical injury. No matter how the aetiology might be revised at a later time, the claim was advanced and processed on the basis that the psychological injury was secondary to the physical injury and all the documentation is consistent with that. The tribunal’s jurisdiction is therefore limited to the psychological condition as a secondary condition arising from the physical condition.
CONSIDERATION
The starting point in this matter is the original claim made by the applicant and the documentation provided to Comcare at or around that time; those early documents are closely focused on the applicant’s physical injury: the injury report (T5) does not mention any psychological element such as stress or mood, and when indicating the parts of the body affected by the injury the applicant ticked boxes for shoulder, elbow, arm, wrist and neck, but not the box marked “psychological system”; the supervisor’s statement (T7) dated 8 August 2003 notes that the injury was contributed to by “nature of work; pressure of work to achieve deadlines and outcomes”; the claim form (T8, dated 13 August 2003) limits the diagnosis to physical matters (“initial diagnosis = tennis elbow as at incident report current diagnosis = right C6 nerve root impingement”) but there is a reference to how stress increases the pain, and the attached notes list also “increased workload” with mention of stress, increased responsibility and decreased autonomy as implicated factors; the determination accepting liability under section 14 of the SRC Act (T12) considers only the physical condition.
Some of the documentation refers to the appearance of symptoms earlier than March 2003, which was when an accident report was submitted relating to symptoms in the upper limbs and neck, leading later to the lodgement of the claim. Later documents (letter of Dr Charles Howse, a sports physician, dated 27 August 2003 (T10), report of Mr Graeme Brazenor, a neurosurgeon, dated 6 February 2008 (T79)), refer to symptoms occurring in late 2002 which were at that time diagnosed as lateral epicondylitis and there is a reference in the second of those reports to some symptoms occurring at earlier times in the applicant’s life, although these were not serious or protracted. None of these reports reference psychological symptoms or issues.
Material from shortly after the lodgement of the claim, however, begins to note the interaction between the applicant’s physical condition and his personality. Thus Dr Eaton in a letter of 24 September 2003 said “Unfortunately he has a personality which has resulted in him becoming quite stressed and anxious as a result of the situation and the demands placed upon him. He has not been in a position to adequately control his workload or pace his duties accordingly.” He further noted “his pain condition has been further aggravated by stress in the workplace and his personality …”. In the initial needs assessment report by the rehabilitation provider Lisa Castles (T22), the assessor noted that stress was a contributing factor that exacerbated the physical injury. The applicant’s surgeon, Mr Brazenor, described him in letters dated 29 July 2005 (T26) and 31 August 2005 (T27) as ”tightly wound” and “deeply neurotic”.
The first explicit recognition that there was a separate psychiatric condition comes from a report by a treating psychologist, Ms Vicki Coghlan, dated 9 September 2005 (T31). Ms Coghlan describes the applicant as possibly having gone through a major depressive disorder earlier in the year; and as now exhibiting pain syndrome behaviour. She diagnosed “pain disorder due to a general medical condition and psychological factors”. The applicant apparently attended sessions with Ms Coghlan following a recognition by Comcare that he had developed a need for such treatment: a note from Comcare to the applicant (exhibit A6, dated 23 September 2005) accepts liability for psychological treatment for eight psychology sessions, consultations with a general practitioner and medication. This acknowledgement of a psychiatric element is in the context of the accepted physical condition, perhaps implying that the psychiatric condition arose out of the physical condition.
This pattern is largely repeated in later documents, when the psychiatric condition begins to assume a more central place in medical assessment of the applicant. Mr Jeff Parsons, a psychologist, provided reports to Comcare (T73 dated 12 June 2007; T78, dated 22 November 2007; T80 dated 20 March 2008) the last of which is a detailed medico-legal report. Mr Parsons diagnosed the applicant with a “pain disorder with both psychological factors and a general medical condition – chronic” and took the view that the condition arose as a sequela to physical injury and pain. Mr Brazenor, on reviewing the applicant almost three years after surgery, stated in a report dated 6 February 2008 (T79) that by that time the applicant’s problems were almost entirely psychological rather than physical. At the time of the examination in December 2007 the applicant had “looked physically well but psychologically ravaged”. Dr Zoltan Zsadanyi, a consultant psychiatrist, prepared a medico-legal report for Comcare (T83) dated 2 October 2008. Dr Zsadanyi diagnosed the applicant’s condition as depression arising from his unsuccessful surgery and losing his position, with a contribution from chronic pain. He identified two discrete episodes of depression, the first before surgery and the second when he lost his job. The formal diagnosis was major depressive disorder, recurrent, severe, in partial remission.
Various exchanges from around this period show the applicant’s own consciousness of the psychological effect of his physical condition and his difficulties at his workplace. Thus in an email dated 5 February 2007 to Comcare (ST19) the applicant said he was finding the situation ”very distressing” and in a further exchange dated 1 March 2007 (ST21) he said he was finding himself “isolated and depressed” because of the way he was being treated by his employer.
The documents dating from the decisions leading to the present proceedings do not change the picture significantly. In the determination of 14 November 2014 denying liability under section 14 of the SRC Act for the psychiatric condition (T123) the Comcare delegate arrived at that decision on the basis that the applicant’s psychiatric condition was not “a direct result of your accepted compensable condition”, which I take to imply that it was treated as a secondary condition The delegate found it was not compensable because in Comcare’s view the primary physical condition from which it arose was also not compensable. The applicant’s reconsideration request, dated 29 June 2015, (T133.2) is couched in terms suggesting clearly that the psychiatric condition is a secondary condition: the applicant stated that depression is “secondary to the injury suffered on 26 March 2003”, or alternatively arose from other and later employment related events, namely losing his position or the rehabilitation process itself. In the reconsideration determination (T141) dated 2 September 2015, the delegate determined that the applicant had no present entitlement to compensation under sections 16 and 19 of the SRC Act in respect of the physical condition; that compensation for the psychiatric condition was claimed on the basis that it was secondary to the physical condition; that as the primary claim has been denied the secondary claim was also denied; and that if any other basis for the psychiatric claim was to be pursued, a separate claim would be needed.
In his application for review (T3, 23 December 2015), the applicant stated in sections 2 and 3 of the form that his psychiatric condition was “a secondary psychological condition to the injury sustained on 26 March 2003”; and “I have suffered from a psychological sequela or sequelae of that injury”.
The thrust of all this documentation is that the applicant’s condition has throughout been presented to Comcare as a secondary condition. In the early stages there were certainly references to stress, overwork, loss of autonomy and the like, but in context these would, in my view, have encouraged Comcare to see such factors as likely to exacerbate the physical condition rather than as symptoms of a clear psychiatric condition arising from the same, or similar, factors producing the physical condition. Nothing indicates that the applicant’s psychiatric condition approached any level of seriousness – for example, that required by the test in Comcare v Mooi [1996] FCA 1587 - until Ms Coghlan’s reports in September 2005, two years after the initial claim. A series of expert reports, over several years, identifies the psychiatric condition as having arisen from such factors as the unsuccessful surgery, the continued stresses of the workplace, chronic pain and the rehabilitation process. Much of the material dating from the years immediately after the claim was lodged is inconclusive at best: thus the applicant’s own statements at ST19 and ST21 could be descriptive statements of mood or personal reaction to circumstances, although they could perhaps alternatively be read as comments on a deep-seated psychological state. But on either reading they do not make a case for a primary psychiatric condition.
The applicant’s oral evidence does not lead me to a different conclusion. He noted that he was at first unaware of the interaction between his psychological state and his physical condition; and that what he learnt over time was that the two went together and one reinforced the other. This also reflects the kinds of comments made by Ms Coghlan, Mr Brazenor and Mr Parsons, as noted above. But it does not lead me to conclude that a psychiatric condition was apparent at any level of clinical significance in the period in 2003 when the claim was lodged. There is no independent evidence whatsoever that that was the case.
Mr Ryan referred me to Energy Australia v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146 and Toyota Motor Corporation v Marmara [2014] FCAFC 84; and to West Tamar Council v Resource Management and Planning Appeal Tribunal [2015] TASFC 12. In Mr Ryan’s argument, these cases bear on the status of the determinations by Comcare and by this tribunal. The first two cases concern enterprise agreements, and (at [78] and [89-91] respectively) refer to the status of such agreements as “statutory artifacts” rather than having any element related to contract about them, deriving as they do from the operation of legislation and carrying a degree of legislative intent with them. The last case concerns the operation of tribunal decisions as having effect under their own legislation rather than under the legislation governing the decision under review: thus my decision in this case, when it comes to be made, would be a decision under section 43 of the AAT Act, rather than being made under section 14 (or other sections) of the SRC Act.
Mr Ryan’s argument is that the statutory weight of the decisions under review (and by implication, the decision I am to take, standing in the shoes of the Comcare decision-makers), requires a particular care and attention, especially given the requirement in section 72 of the SRC Act that Comcare be guided by equity and good conscience. Mr Ryan asserts that the material before Comcare recording the applicant’s health problems in 2003 and the period immediately preceding should have suggested to Comcare that there was more to the applicant’s claim than a mere physical condition, and a wider primary claim, extending to a psychiatric condition, was clearly implied. He noted the emphasis given to the psychological dimensions of the applicant’s case in some of the early documents, not only the claim form itself and its attachments (especially at T8.1) but also in the rehabilitation action plan (T6) and Mr Brazenor’s letters and reports (T26, T27, T79). Mr Ryan took me to Secretary to the Department of Justice and Regulation v Bhatia [2018] VSC 500, a case where the Victorian Supreme Court upheld a decision by a tribunal member treating an applicant in a very compassionate fashion despite a criminal conviction. The point, I think, is that a tribunal’s role requires a proper appreciation of the applicant’s position and a sympathetic approach to the facts of the matter.
I have already suggested above that I do not think that the evidence available to Comcare, or for that matter the evidence available to me, supports the conclusion for which Mr Ryan contends. That remains the case after careful consideration of the case law to which he has referred me. Mr Snell took me to Beezley v Repatriation Commission [2015] FCAFC 165 (Beezley) where North, Tracey and Mortimer JJ said (at [68]):
In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises.
This comment by their Honours states a fundamental requirement of the tribunal, and in the end, the evidence before me is simply not sufficient to persuade me that the tribunal’s jurisdiction aligns with the broader scope advocated by the applicant: it does not extend to embrace a primary claim for the psychiatric condition.
Mr Ryan made a great deal out of the absence of a claim form for the psychiatric condition. Mr Snell said that exhaustive attempts had been made to identify such a form, without success. Mr Snell suggested that at some time it had been Comcare practice to treat a medical certificate as a claim form and determine a claim accordingly, but acknowledged that he was not in a position to lead evidence in support of that suggestion.
Mr Ryan suggested that it was open to me to draw appropriate inferences from the absence of the form, providing numerous citations in support, beginning with Blatch v Archer (1774) 1 Cowp 64; [1774] Eng R2; (1774) 96 ER 969. That case, and Brown and Repatriation Commission [2004] AATA 1262, point to the possibility of drawing an adverse inference from the failure by a party to adduce evidence available to it. Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 (Haneef) deals with similar issues and also raises the presumption of regularity; in that case no adverse inference was drawn from the failure of the Minister to appear in person to give evidence. These cases may suggest first, that the absence of the claim form does not prevent an inference being drawn that such a form exists where such an inference is supported by other documentation and the presumption of regularity; and second, that I might draw an adverse inference from the respondent’s failure to provide it as evidence. With regard to the latter point, it is stated in Blatch v Arthur and in Haneef that evidence must be weighed according to the capacities and circumstances of the parties to lead it (see also de Gail and Comcare [2018] AATA 2309, at [93]).
The last of those propositions is not one I can accept as carrying a great deal of weight in this case. An adverse inference may be drawn under some circumstances where it was open to a party to adduce evidence and it fails to do so. While Comcare’s general capacity to adduce evidence is not in any doubt, I have no reason to question Mr Snell’s statement that no claim form could be found despite an exhaustive search. I do not see any basis for drawing an adverse inference in this matter, where Comcare has plainly asserted that the evidence is not in fact available to it.
Section 54 of the SRC Act states that no compensation can be paid except on a claim. The Act provides for compensation under several different heads: section 14, the gateway provision, provides for compensation where an injury results in death, incapacity or impairment; section 16 covers compensation for medical expenses, including, through subsection 16(2), for medical expenses whether or not the injury causes death, incapacity or impairment (i.e. including where section 14 has no application). Other parts of the Act deal with compensation in respect of death, impairment, property loss or damage, incapacity and household assistance and attendant care. But all are covered by section 54, i.e. a claim is needed if any of these forms of compensation are to be paid.
In this case, where no claim form has been found, it can therefore be assumed that at some point one was lodged (the only other explanations are either that Comcare treated a medical certificate as a claim form, as suggested above, or else made an administrative error and determined a non-existent claim). This is an application of the presumption of regularity to which Mr Ryan referred me. But although the presumption may encourage me to proceed on the basis that a claim form was completed and provided to Comcare at some point, it does not allow me to presume that because the claim form cannot be found it must have been for a primary rather than secondary condition. I cannot see that there is any evidence that would support such a view, nor any reasoning that would allow me to reach that conclusion, except through a rather drastic adverse inference of the kind that I have refused to draw. Mr Ryan would have me adopt a generous approach to the issue, given that the SRC Act is beneficial legislation, giving full effect to section 72 of that Act; but I cannot see, bearing in mind the Full Federal Court’s comments in Beezley about the need for decisions to be based on probative evidence, that I can leap to conclude that the missing claim form asserted a primary claim when there is such a body of available evidence to the contrary.
There is at T114 a Comcare form headed “Psychology/Counselling Treatment Notification Plan”. This is a referral from Dr Mirpuri, the applicant’s general practitioner, for treatment by Ms Amaly Khalaf, who the applicant said was his treating psychologist at the time. The form is signed by the applicant and dated 15 July 2014. I note that the applicant was also referred for counselling in 2005 with Ms Coghlan as part of the claim for the physical injury, which implies that at that time the psychiatric condition was regarded as a set of symptoms of the physical condition. It is at least possible that that also occurred in 2014, and that in error Comcare later made a determination for a condition against which no claim had ever been lodged.
In the alternative, Mr Ryan drew to my attention to exhibit A9, which is a medical certificate signed on 16 May 2014 by Dr Mohan Mirpuri, the applicant’s general practitioner at that time. The certificate offers a diagnosis of “depression” and states “This has resulted from an injury which had occcoured [sic] at work which was an accepted condition. He has developed depressive symptoms as a result of work place issues and his chronic pain.” Mr Ryan suggested that this might have prompted the determination by Comcare, which came shortly afterwards (in November 2014). That is eminently plausible, but no corroboratory evidence has come forward, and I note in any case that the certificate offers little support for the contention that the applicant’s psychiatric condition is a primary rather than secondary condition.
The initial determination at T123 refers to “your claimed condition of ‘depression’” and later states “I am not satisfied the claimed condition of ‘depression’ is a direct result of your accepted compensable condition of aggravation of intervertebral disc disorder…”. Thus the determination refers to the condition as having been claimed and suggests it is a secondary condition, but does not identify with any specificity the claim that is being determined (e.g. it does not identify when a claim was lodged or refer to a form). The reconsideration determination (T141) refers again to a claimed condition but does not identify the origin of the claim or specify the basis on which it was made. These determinations do not illuminate the nature of the claim from which they proceed.
What is more, each of the initial and reconsideration determinations treats the condition as secondary to the physical condition – indeed the rejection in each case is based on the rejection of the case for compensation for the primary condition. Thus if I were to infer the scope of the missing claim from the decisions subsequently made with regard to it, I would be led to believe that the claim was more likely than not to have been for a secondary condition.
Mr Ryan argued that Barrow should encourage me to the opposite conclusion: that the discovery at a later time of a condition affecting an applicant at an earlier part of the claims process was an opportunity for decision-making on the claim to be brought into alignment with its true circumstances. But that case involved a new understanding of a single claimed condition on the basis of new evidence. Carr J was very plain in noting that the tribunal in that matter was determining a single question, namely whether Telstra was liable for compensation for the claimed condition: all that changed was the medical evidence regarding causation, which allowed new causes to be brought into the picture. The current situation is different and can be readily distinguished. The decision under review is a 2015 reconsideration determination, dealing with a condition that the applicant now says originated at the time of his original physical injury in 2003. Mr Ryan is arguing that this is a correction of a failure of Comcare at an earlier time to recognise the psychiatric injury. But this is not a case where the claim is the same but the parameters or causation of the condition is changed to reflect updated evidence: Mr Ryan is asking that the basis of the claim be shifted in a fundamental way. Barrow is not authority for the conclusion he is seeking.
My conclusion is that the applicant’s psychiatric condition is and has always been presented as secondary to the physical condition. To the extent it arises as a primary claim from later events such as the applicant losing his position, it would need to be the subject of a separate claim. Even if I were to conclude that the psychiatric condition is, in hindsight, a primary condition that arose in tandem with the physical condition, that is not the way it was presented to Comcare. Comcare must be expected to process a claim in accordance with the way it was presented. The remarks by Madgwick J in Abrahams, especially note 5 in the extract quoted above at [15], draw attention to the tension between a proper and fair assessment of a person’s claim on Comcare, on the one hand, and the need for Comcare to be able to process a claim on the basis of its presentation, without subsequent recasting to a claimant’s advantage, on the other. The point is emphasised in cases such as Muir. In my view nothing in the early papers put Comcare on notice that a primary psychiatric condition was present. To allow the psychiatric condition to be agitated as a primary condition at the level of the tribunal would be to fall into the error identified in Muir and Szabo.
The tribunal’s jurisdiction regarding the applicant’s psychiatric condition extends only to that condition as secondary to the physical condition.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman
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Associate
Dated: 25 October 2018
Date(s) of hearing: 22-23 August 2018 and 4 October 2018 Solicitors for the Applicant: Mr Terence Dwyer Counsel for the Applicant: Mr Christopher Ryan Solicitors for the Respondent: Mr Peter Lehmann Counsel for the Respondent: Mr Michael Snell
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