ZJQL and Comcare (Compensation)
[2021] AATA 2229
•30 June 2021
ZJQL and Comcare (Compensation) [2021] AATA 2229 (30 June 2021)
Division:GENERAL DIVISION
File Number(s): 2017/4669, 2017/4670, 2017/4671, 2017/4672, 2017/4673, 2017/4675, 2017/4676, 2017/4678, 2017/4680 and 2017/4681
Re:ZJQL
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:The Hon. Matthew Groom, Senior Member
Date:30 June 2021
Place:Melbourne
The decision under review in respect of each of the applications is set aside and each matter is remitted to Comcare to give effect to the findings of the Tribunal as set out in the reasons to this decision.
............................[sgd]............................................
The Hon. Matthew Groom, Senior Member
Catchwords
COMPENSATION – entitlement to compensation – review of determinations of entitlement to compensation relating to accepted work sustained injury – consideration of capacity to work during the relevant periods – consideration of normal weekly hours and normal weekly earnings – decisions under review set aside and remitted for reconsideration
Legislation
Safety Rehabilitation and Compensation Act 1988
Cases
Menz and Border Express Pty Ltd, Re [2012] AATA 203
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
30 June 2021
Introduction
This matter involves a review of a decision made by a delegated review officer of the respondent dated 7 June 2017 which varied a series of 10 separate determinations dated 12 October 2016, 23 November 2016, 4 January 2017, 5 January 2017, 18 January 2017, 1 February 2017, 1 March 2017, 15 March 2017, 29 March 2017 and 12 April 2017. Each of the determinations relate to the payment of compensation to the applicant for incapacity during the period from 22 August 2016 to 1 March 2017. The payments relate to a claim for intracranial injury, superficial injury to face, neck, & scalp and post-traumatic stress disorder sustained on 9 November 2015 liability for which was accepted under section 19 of the Safety Rehabilitation and Compensation Act 1988 (“Act”).
In making her decision the delegated review officer accepted that the applicant’s normal weekly hours (“NWH”) for the purpose of calculating incapacity entitlements in accordance with the Act were 17 hours and 53 minutes per week. The NWH were also described in the delegate’s decision as being 17.88 and 17.89 hours per week. The delegated review officer found that the for the period between 22 August 2016 to 23 November 2016 the applicant suffered partial incapacity on the basis that he was fit to work between 10 and 15 hours per week but less than his NWH. The delegated review officer found that for the period from 24 November 2016 to 1 March 2017 the applicant was fit to work a number of hours in excess of his NWH and as such was not entitled to incapacity payments in respect of that period.
On 3 August 2017 the applicant sought a review of the delegated review officer’s decision of 7 June 2017 which is the matter presently before this Tribunal.
Background Facts
The applicant was employed on a contract basis through TIS National as an interpreter for the Department of Immigration and Border Protection (the “Department”) under a Deed of Standing Offer. The applicant provided interpreter services to the Department on an as needs basis at various locations both within and outside of Australia and both by telephone and in person.
At the time of his injury the applicant was providing interpreter services to the Department on the island of Nauru as part of a proposed eight-week deployment.
On 9 November 2015, the applicant was hit in the head with a rock. Following the incident the applicant attended a medical clinic on Nauru located at Nauru Public Hospital. The applicant was subsequently repatriated back to Melbourne (the “Nauru incident”).
On 13 November 2015, radiologist Dr Sarah Kremer reported the results of a CT scan on the applicant concluding that there was no evidence that the applicant had suffered a haemorrhage to his head.
On 25 November 2015, the applicant made a claim for workers compensation in respect of “post concussion syndrome and psychological injury” resulting from the Nauru incident.
The applicant was referred to neurologist Dr Catherine Stark for assessment. Dr Stark noted her conclusions in a report dated 9 December 2015 which states in part:
[The applicant’s] symptoms are consistent with a post-traumatic headache. Given that remains a daily problem a month down the track, I think it is worthwhile putting on a prophylactic to try and settle things down.
… I don’t think he needs any further imaging at this stage but were his symptoms to deteriorate, in particular with more prominent nausea or a position sensitive headache, I would have a low threshold for getting an MRI of brain.
On 23 December 2015, the respondent made a determination that the applicant’s claim for “intracranial injury; and superficial injury of face, neck, & scalp” resulting from the Nauru incident was accepted and also confirmed its acceptance that the injury arose out of, or in the course of, the applicant’s employment.
On 24 February 2016, the Department requested a reconsideration of the determination dated 23 December 2015 on the basis of what it claimed could potentially be a failure by the applicant to have disclosed a prior medical condition.
On 24 March 2016, the respondent affirmed the determination of 23 December 2015.
On 11 July 2016, the respondent accepted the applicant’s claim for psychological injury in the form of post traumatic stress disorder.
On 1 December 2016, the respondent declined liability for compensation in respect of the claimed post-concussion syndrome.
On 8 February 2017, the respondent wrote to the applicant giving notice of an intention to determine no present entitlement to further incapacity payments on the basis that the applicant had been deemed fit to work 20 hours per week by his GP, Dr Mann-Segal, in a medical certificate dated 13 December 2016. The respondent noted that the certified level of work the applicant was deemed capable of was in excess of the determined normal weekly hours for the purpose of calculating the applicant’s incapacity payments.
On 15 March 2017, the respondent determined that it had no present liability to pay further incapacity payments to the applicant in respect of his injuries suffered as a consequence of the Nauru incident on the basis that the applicant’s GP, Dr Mann-Segal, had certified the applicant as able to undertake four hours of work per day which the respondent noted was in excess of the determined normal weekly hours for the purpose of calculating the applicant’s incapacity payments.
On 23 May 2017, the Department requested reconsideration of the determinations accepting liability for incapacity payments to the applicant from 22 August 2016. The Department did so on the basis that the applicant was certified as fit to work 20 hours per week from 22 August 2016 which was in excess of the amount of normal weekly hours that had been determined as applying to the applicant for the purpose of calculating the applicant’s incapacity payments.
On 7 June 2017, the respondent determined that each of the earlier determinations dated 12 October 2016, 23 November 2016, 4 January 2017, 5 January 2017, 18 January 2017, 1 February 2017, 1 March 2017, 15 March 2017, 29 March 2017 and 12 April 2017 which had accepted incapacity under section 19 of the Act were set aside. In substitution the respondent determined that the applicant was entitled to incapacity payments from 22 August 2016 to 23 November 2016 on the basis of the amount of normal weekly hours that had been determined as applying to the applicant (which the delegated review officer had described variously as being 17 hours and 53 minutes or 17.89 hours or 17.88 hours) and the medical evidence supporting the applicant having a work capacity for that period of between 10 to 15 hours per week. Further, the respondent determined that from 24 November 2016 to 1 March 2017 the applicant was not entitled to incapacity payments on the basis that the medical evidence supported the applicant having a work capacity of 20 hours per week which was in excess of the amount of normal weekly hours that had been determined to apply to the applicant.
On 3 August 2017 the applicant sought review of the 7 June 2017 determination which is the matter presently before this Tribunal.
Legislative provisions and policy
Statutory provisions
8 Normal weekly earnings
(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee’s average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
(2) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:
where:
NH is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and
OR is the employee’s average hourly overtime rate of pay during that period.
(3) Where an employee was, at the date of the injury, employed by the Commonwealth or a licensed corporation in part‑time employment or unpaid employment, any earnings of the employee from any other employment shall, for the purposes of this section, be treated as earnings of the employee from his or her employment by the Commonwealth or the licensed corporation.
(4) Where, because of the shortness of the relevant period, it is impracticable to calculate the normal weekly earnings of an employee before an injury under subsection (1) or (2), the normal weekly earnings of the employee before the date of injury shall be taken to be the normal weekly earnings before that date of another employee performing comparable work, being normal weekly earnings from employment by the Commonwealth or a licensed corporation and calculated under subsection (1) or (2), as the case requires.
(5) Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.
(6) Subject to this section, if the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation at the date of the injury is increased, or would have been increased if the employee had continued in that employment, because of:
(a) the attainment by the employee of a particular age;
(b) the completion by the employee of a particular period of service; or
(c) the receipt by the employee of an increase in salary, wages or pay by way of an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment;
the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased, or would have been increased, as the case may be.
(7) Subject to this section, if:
(a) an employee continues to be employed by the Commonwealth or a licensed corporation after the date of an injury; and
(b) the minimum amount per week payable to the employee in respect of that employment is increased because of the promotion of the employee;
the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased.
(8) Subject to this section, where:
(a) the employment of an employee is of a kind referred to in subsection 5(4) or (6) or subsection (3) of this section; and
(b) the employee is not receiving earnings from any other employment at the date of the injury;
the normal weekly earnings of the employee before the injury shall be an amount determined by Comcare to be the amount per week that the employee would have been able to earn at the date of the injury (including any amount in respect of overtime worked on a regular basis) if he or she had engaged in suitable paid employment.
(9) The normal weekly earnings of an employee before the date of the employee’s injury, as calculated under the preceding subsections, must, while the employee continues to be employed by the Commonwealth or a licensed corporation, be increased or reduced by the relevant percentage.
(9A) For the purposes of subsection (9), relevant percentage means the same percentage as the percentage of increase or reduction in the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the date of the injury as a result of:
(a) the operation of a law of the Commonwealth or of a State or Territory; or
(b) the making, alteration or operation of an award, order, determination or industrial agreement or the doing of any other act or thing, under such a law.
(9B) The normal weekly earnings of an employee before injury, as calculated under subsections (1) to (8) and as increased or reduced under subsection (9) must, if the employee has ceased, or ceases, to be employed by the Commonwealth or a licensed corporation, be further increased, with effect from each indexation date in relation to that cessation, by reference to the percentage of increase (if any) of an index that is prescribed for the purposes of this subsection over the year ending on the 31 December preceding each such indexation date.
(9C) For the purpose of subsection (9B), the indexation date, in relation to a cessation of employment, is:
(a) the 1 July next following:
(i) the date on which this Act receives the Royal Assent; or
(ii) the date of that cessation of employment;
whichever last occurs; and
(b) each subsequent 1 July.
(9D) For the purpose of subsection (9B), the regulations may specify the manner of calculating the further increase referred to in that subsection by reference to the movement of the index that is prescribed for the purposes of that subsection.
(9E) The normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, must, with effect from 1 July in each year, be further increased by the amount under subsection (9F) if, in the 12 months immediately preceding that 1 July:
(a) there was no increase in those earnings under subsection (6), (7) or (9); and
(b) there was no reduction in those earnings under subsection (9).
(9F) If the normal weekly earnings of an employee before an injury must be increased because of subsection (9E), the amount by which they are increased is the percentage of increase (if any) in the index prescribed by the regulations for the purposes of this subsection over the period of 12 months ending on the 31 December immediately before the relevant 1 July.
(9G) For the purposes of subsection (9F), the regulations may specify the manner of calculating the further increase mentioned in that subsection by reference to the movement of the index that is prescribed for the purposes of that subsection.
(10) If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a) where the employee continues to be employed by the Commonwealth or a licensed corporation—the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or
(b) where the employee has ceased to be employed by the Commonwealth or a licensed corporation—whichever is the greater of the following amounts:
(i) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess.
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Note: Compensation is not payable under this subsection in relation to certain claims (see section 119A).
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a) if the employee has paid the cost of the medical treatment—to, or in accordance with the directions of, the employee; or
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c) in any other case—to the person to whom the cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first‑mentioned person.
(6) Subject to subsection (7), if:
(a) compensation in respect of the cost of medical treatment is payable; and
(b) the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c) in respect of the journey—of an amount worked out using the formula:
where:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.
numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).
(d) in respect of the employee remaining for the purpose of obtaining the treatment—of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation under subsection (6) unless:
(a) the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of public transport or ambulance services—the employee’s injury reasonably required the use of such transport or services regardless of the distance involved.
(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was available to the employee;
(b) the means of transport available to the employee for the journey;
(c) the route or routes by which the employee could have travelled; and
(d) the accommodation available to the employee.
(9) Where:
(a) an employee suffers an injury;
(b) a person has reasonably incurred expenditure in connection with the transportation of the employee, or, if the employee has died, of his or her body, from the place where the injury was sustained to a hospital or similar place, or to a mortuary; and
(c) the employee, or the legal personal representative of the employee, does not make a claim for compensation in respect of that expenditure;
Comcare is liable to pay compensation to the person who incurred the expenditure of an amount equal to the amount of that expenditure.
19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
(2A) For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a) it is a week during which the employee’s incapacity prevents the employee working the employee’s normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and
(b) the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee’s normal weekly hours.
(2B) If, before the end of a particular week, the total of the hours that the employee has been prevented from working, or working at that level, in that week and in previous weeks, will exceed the total number of hours worked out in accordance with paragraph (2A)(b), then:
(a) subsection (2) applies in respect of the part of the week before that total number of hours is exceeded in accordance with subsection (2C); and
(b) subsection (3) applies in respect of the remainder of the week in accordance with subsection (2D).
(2C) For the purposes of paragraph (2B)(a), the compensation payable in respect of the part of the week to which that paragraph refers is an amount worked out using the formula:
where:
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
NWH means the number of normal weekly hours worked by the employee before his or her injury.
X is the total of the hours in that particular week:
(a) that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours.
(2D) For the purposes of paragraph (2B)(b), the compensation payable in respect of the part of the week to which that paragraph refers is worked out using the formula:
where:
NWH means the number of normal weekly hours worked by the employee before his or her incapacity.
reduced rate compensation entitlement is the rate of compensation that would have been applicable for the whole week had subsection (3) applied throughout the whole week.
X is the total of the hours in that particular week:
(a) that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours.
(3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
where:
adjustment percentage is a percentage equal to:
(a) if the employee is not employed during that week—75%; or
(b) if the employee is employed for 25% or less of his or her normal weekly hours during that week—80%; or
(c) if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—85%; or
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—90%; or
(e) if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—95%; or
(f) if the employee is employed for 100% of his or her normal weekly hours during that week—100%.
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
(3A) If, as a result of the incapacity:
(a) the amount per week payable to the employee in respect of his or her continued employment is reduced; and
(b) a pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self‑employment)—the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour‑market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
(5) Where an amount of compensation calculated under subsection (3) exceeds 150% of the amount called the Average Weekly Ordinary Time Earnings of Full‑time Adults, as published from time to time by the Australian Statistician, the amount so calculated shall be reduced by an amount equal to the excess.
(6) Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
(7) For the purposes of subsection (6), the minimum earnings of an employee shall be taken to be:
(a) $202, or, if subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies; or
(b) an amount equal to 90% of the employee’s normal weekly earnings;
whichever is less.
(8) If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $50.
(9) If there are prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of birth of that child.
(10) If a prescribed child is:
(a) a prescribed person in relation to the employee; and
(b) the only prescribed person who is wholly or mainly dependent on the employee;
subsection (9) does not apply in relation to that child.
(11) If 2 or more prescribed children are each:
(a) a prescribed person in relation to the employee; and
(b) wholly or mainly dependent on the employee;
subsection (8) applies in relation to one of those children and subsection (9) applies in relation to the remainder of those children.
(12) In this section, prescribed person, in relation to an employee, means:
(a) the spouse of the employee; or
(b) any of the following persons, being a person who is 16 or more:
(i) the parent, step‑parent, father‑in‑law, mother‑in‑law, grandparent, child, stepchild, grandchild, sibling or half‑sibling of the employee;
(ii) a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to the employee;
(iii) a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent on the employee.
Note: In relation to subparagraph (12)(b)(i), see also subsection 4(2).
(14) For the purposes of the definition of prescribed person in subsection (12), a person who has the care of a child referred to in subparagraph (12)(b)(iii) shall not be taken not to be wholly or mainly maintained by an employee merely because the employee pays remuneration to the person for caring for that child.
Statutory Definitions
4 Interpretation
(1) In this Act, unless the contrary intention appears:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Issues
The issue for determination by the Tribunal is whether, during the period from 22 August 2016 to 1 March 2017, the applicant suffered incapacity from employment as a consequence of his accepted conditions of intracranial injury, superficial injury to face, neck, & scalp and post-traumatic stress disorder giving rise to a liability on the part of the respondent to pay compensation to the applicant in accordance with section 19 of the Act.
Contentions and consideration
Further medical background
The applicant was referred to consultant psychiatrist Dr Jennifer Majoor who provided a report dated 20 January 2016. In her report Dr Majoor made the following comments in relation to the applicant’s medical treatment and past medical history:
…..[The applicant] stated that he is not on any regular medications. He stated he is taking Panadol for headaches. He stated that he sees his GP, Dr Daniel Mann-Segal when required. He stated that he has had one appointment with a psychologist, Roslyn, whose surname he could not recall and that he also saw another psychologist following the attack, whose name he could not recall, through his workplace.[The applicant] stated that he has seen a neurologist who diagnosed post-concussion syndrome, for one appointment and is due for a review appointment later this month.
..[The applicant] stated that he has no past medical history of note.
[The applicant] stated that he was diagnosed with Posttraumatic Stress Disorder in 2006. He stated that this arose because he was tortured by authorities. He stated that he underwent psychological counselling for two years after he arrived in Melbourne and took antidepressants. He stated that he has lost contact with his previous psychologist and could not recall her name and that he could not recall the name of his antidepressant therapy. He stated that his symptoms included a fear of authorities and people in uniform and panic attacks. [The applicant] stated that his symptoms completely resolved following treatment and that they have not re-surfaced since his most recent attack.
…[The applicant] … gives a history of a random and unprovoked assault causing a loss of consciousness. He has been diagnosed with post-concussion syndrome and in addition report symptoms of re-experiencing phenomena, avoidance and numbing of general responsiveness and symptoms of hyperarousal, sufficient to meet the criteria for a diagnosis of Post Traumatic Stress Disorder. I note that he has a history of a previous diagnosis of posttraumatic stress disorder, which he said had resolved prior to the onset of his current symptoms.
Dr Majoor reached the following conclusions:
… From a psychiatric viewpoint, I consider [the applicant] appears to be suffering from a posttraumatic stress disorder.
He meets DSM-IV-TR criteria for this disorder as he was exposed to an incident that involved serious injury with his assault and his reaction was one of helplessness and horror. He suffers from intrusive distressing recollections and dreams. He also has persistence avoidance of stimuli associated with the trauma, with efforts to avoid thoughts and feelings associated with the trauma. He has decreased interest and participation in activities and emotional numbing and detachment from others. He has persisting symptoms of increased arousal with difficulty falling or staying asleep, hypervigilance and an exaggerated startle response irritability and difficulty concentrating.
…[The applicant’s] condition of Post Traumatic Stress Disorder would appear to have a good prognosis. He appears highly motivated to return to work in his former occupation. I note that he has also received treatment for posttraumatic disorder in the past and reported a complete resolution of symptoms. He stated that he has already sought treatment for his condition and that he intends to pursue further psychological therapy.
.. I did not identify aspects of the clinical examination tending to suggest that [the applicant] was voluntarily exaggerating symptoms, or displaying symptoms or examination findings inconsistent with the claimant condition.
…[The applicant’s] employment would appear to have triggered the current episode of posttraumatic stress disorder as he stated that he was assaulted on Nauru Island during the course of his work, although it would appear that he had an underlying vulnerability to posttraumatic stress disorder given his previous diagnosis of posttraumatic stress disorder.
… I would recommend trauma-based cognitive behavioural therapy of at least 16 – 20 sessions on a fortnightly basis involving systemic desensitisation to [the applicant] recurrent intrusive recollections and [the applicant’s] ongoing fears that cause him to be avoidant of public spaces.[The applicant] may also benefit from the commencement of antidepressant medication to assist with his mood and irritability and sleep disturbance. He may benefit from referral to a psychiatrist for optimisation of medication, especially in view of his post-concussion syndrome.
…[The applicant] is not currently fit to engage in any type of work because of his symptoms of Post Traumatic Stress Disorder.
… I would advise that [the applicant] undertake further medical and psychological treatment over the next two months and then engage in a graduated return to work plan.
…[The applicant] is not currently capable of undertaking rehabilitation program because of the symptoms of his post traumatic stress disorder and he requires further medical and psychological treatment.
I would advise that [the applicant] undertake a graduated return to work program, commencing at two days per week and increasing by one day per week until full-time hours have been achieved, in two months time, after seeking further treatment for his condition. I recommend that he undertake local interpreting contracts in the first instance and not undertake overseas contracts until full-time hours have been achieved and that this occurred in consultation and treatment providers.
I recommend a further review should there be a delay in his achieving successful return to full time hours.
On 12 January 2016, the applicant was assessed by psychologist and workplace rehabilitation consultant Mr Peter Andrewartha for the purpose of assessing the applicant’s occupational rehabilitation needs and facilitating a suitable return to work. In his assessment report dated 12 February 2016 Mr Andrewartha notes the following:
…[The applicant] advised that his physical symptoms had improved in recent weeks, however he continued to experience severe headaches and these were the main issue impacting him at this time.
[The applicant] advised that he was motivated to return to work once his headaches had improved.[The applicant] advised that he had been informed by Mr Smith regarding the availability of local interpreting work and the Consultant discussed the benefits of him undertaking a graduated RTW when deemed medically suitable and in liaison with the Treating Practitioners.
Mr Andrewartha make the following recommendations on the basis of his assessment:
It is recommended that [the applicant] continues to access appropriate treatment for his condition to assist him to manage his continuing symptoms and to restore his general and occupational functional capacities.
It is recommended that the Department remains engaged in supportive dialogue with [the applicant] regarding his progress and to endeavour to promote his re-engagement in occupational rehabilitation support. It is envisaged that with a collaborative support process [the applicant] can be supported to achieve a graduated RTW program when medically appropriate, where his medical and workplace needs can be aligned.
Based on the feedback from [the applicant] and the Department, it is envisaged that a RTW program may include the following:
· Reduced hours in consideration of [the applicant’s] continuing headaches.
· Flexibility in terms of when [the applicant] works each day, to optimise his RTW program around periods when he is not affected by headaches or other symptoms.
· Telephony-based duties initially, where [the applicant] can nominate his availability around his symptoms/capacity and can moderate his environment to best manage his condition.
It is envisaged that as [the applicant’s] condition improves with treatment and recovery, he can be supported to graduate to undertaking agreed periods of face to face interpreting work. It is recommended that medical opinion is first obtained regarding any activities that would assist [the applicant] to restore his psychological resilience to being within crowds and dealing directly with people, to assist him to overcome his current social withdrawal.
The final stage in [the applicant’s] RTW program would involve obtaining clearance for him to return to undertaking deployments.
Throughout the above, it is recommended that [the applicant] is engaged with appropriate workplace supports and that his progress is reviewed at regular intervals to ensure that any issues identified can be addressed.
In a report dated 14 April 2016 the applicant’s GP, Dr Daniel Mann-Segal, confirmed his diagnosis in respect of the applicant of mixed anxiety and depression and also noted:
… I am of the belief that his anxiety symptoms are a consequence of the head trauma sustained and of the subsequent chronic headache.
… I am not aware of any pre-existing anxiety or depression.
… I believe that his anxiety is not this point a limiting factor in his return for work. I think that his post concussive syndrome is the limiting factor.
… As outlined to Oliver Jones, Workplace rehabilitation consultant on April 5, 2016 I am of the opinion that if the work was available then [the applicant] would be capable of doing some translating work, based at home, initially limited to 2 hours a day with those hours being flexible.
..[The applicant] cannot yet return to unrestricted duties. It would be appropriate to try some translating work, based at home, initially limited to 2 hours a day with those hours being flexible.
.. In the past his symptoms have been of a severity which would not allow him to return to the workforce undertaking similar duties as he has had to cope with ongoing headache for most of the day in addition to bouts of dizziness and word finding issues.
On 22 April 2016 the applicant’s GP, Dr Mann-Segal, certified the applicant as having a capacity for suitable employment of up to 2 hours per day, self-paced at home, from 13 April 2016.
At the request of the respondent, neurologist Dr Catherine Stark prepared another report in relation to the applicant dated 17 June 2016. In that further report Dr Stark states as follows:
…[The applicant] has had a CT brain which was normal.
At my initial consultation I prescribed Amitriptyline, a dose of 25 mg, regular paracetamol and continued his pre-existing Meloxicam. This combination was ineffective and therefore he was changed on the 16th March to Propranolol, initially 40mg daily but this has subsequently been increased up to tds. This has improved his pain intensity down from 7 – 8/10 down to 2 – 3/10. He has also been using Imigran on a regular basis and I have advised him to change to Relpax and decrease his frequency of use to avoid medication overuse headache. These most recent changes were made on 17/6/2016.
An MRI brain has been requested but [the applicant] has struggled with claustrophobia. He plans to try this again in the next couple of weeks.
On 17 May 2016 the applicant’s GP, Dr Mann-Segal, certified the applicant as having a capacity for suitable employment noting:
Telephone work increases his anxiety and headache it lasts>~20 minutes. I have increased propanol today. He wants to trial regular face-to-face duties. This is worthwhile trialling three hours/day with a view to increasing. Limit the telephone interpreting to 30 minute blocks.
On 21 July 2016 the applicant’s GP Dr Mann-Segal again certified the applicant as having a capacity for suitable employment noting:
Flare of pain. Limit work to 2 hours/day: ideally face-to-face..
In a progress report from workplace rehabilitation consultant Mr Oliver Jones dated 25 July 2016, Mr Jones notes that a number of return to work plans had been trialled and noted that the applicant had failed to complete the agreed hours under the second of those plans. Mr Jones notes that he had prepared a third return to work plan for the applicant’s GP, Dr Mann-Segal, which included a continuation of the applicant’s current duties (phone and face-to-face) at four hours per day for a further four weeks. Mr Jones notes that Dr Mann-Segal had modified the plan to include a reduction in the applicant’s work hours to 2 hours per day, ideally undertaking face-to-face duties. Mr Jones then made the following recommendations:
·Following the commencement of psychological treatment, the consultant will obtain updated medical feedback from Dr Mann-Segal and [the applicant’s] new psychologist to determine the impact of his psychological symptoms on his work capacity and identify and address any additional RTW barriers in relation to his psychological condition.
·The Consultant will continue to develop updated RTW plans in line with [the applicant’s] work capacity and updated medical feedback from his treaters. It is envisaged that he will continue to graduate his duties, with increased periods of face-to-face interpreting duties, prior to returning to deployments. The final stage in [the applicant’s] RTW program will involve obtaining clearance for him to return to undertaking deployments.
·The Consultant will continue to liaise with Mr Smith to monitor [the applicant’s] progress with undertaking his duties at work.
·The Consultant will continue to monitor [the applicant’s] progress with his RTW and treatment, providing support is required.
·Should [the applicant] continue to be unable to adhere to his obligations, the Consultant will initiate discussions with Mr Smith to discuss future management of [the applicant’s] occupational rehabilitation, including consideration for engaging IMAS to assist with determining a way forward.
On 16 August 2016 the applicant was referred to consultant psychiatrist, Dr Peter Farnbach, for a psychiatric re-assessment. In a report dated 22 August 2016 Dr Farnbach describes his assessment as follows:
In summary, my opinion concurs very closely with that of Dr Majoor. [The applicant] suffers from posttraumatic stress disorder with associated depressive symptomatology. He has a history of posttraumatic stress disorder approximately a decade ago, which resolved after two years. Although this does not have a direct bearing on his current presentation it has undoubtedly predisposed him to the development of PTSD in the setting of a sufficiently severe trauma.
[The applicant] also suffers from symptoms consistent with post-concussional syndrome although making a firm diagnosis of this is outside the ambit of my specialty. As discussed above, many of the symptoms of posttraumatic stress disorder and post-concussional syndrome overlap, particularly difficulty with concentration and attention, sleep disturbance, irritability and lack of motivation. Headache and photophobia are not core symptoms of posttraumatic stress disorder and are therefore related to his post-concussional syndrome or post-concussional headache.
With regard to treatment, I note that [the applicant] has not had specific treatment for his posttraumatic stress disorder. I very strongly suggest that he is referred to a psychiatrist with an interest and expertise in the area for consideration of appropriate psychopharmacology-in addition to antidepressant medication there are a variety of other medications that are used to control the intrusive symptoms of PTSD such as certain anticonvulsants and certain hypertensive agents. This is generally the province of a psychiatrist rather than a general practitioner.
I also very strongly suggest that [the applicant] is referred for specific psychological treatment of his posttraumatic stress disorder-generally first-line psychological treatment is with exposure-based techniques. This usually requires a psychiatrist or psychologist with a particular interest in the area. Simple “supportive” approaches or relaxation therapy etc are generally ineffective.
With regard to work capacity, [the applicant] does not have a current capacity for his previous duties. From a psychiatric point of view he has a capacity for up to part-time (four hours per day) work as an interpreter-given his behavioural withdrawal preferably this is outside the house rather than home-based. He has difficulty travelling into town because of his posttraumatic stress disorder so ideally he should be find work in a suburban setting. He is able to travel.
The above does not take into account any work incapacity attributable to his post-concussional headache/post-concussional syndrome-he cites his major difficulty with interpreting as headache, and I suggest that an opinion is sought from Dr Stewart regarding this issue.
With regard to future work capacity, I suggest that [the applicant] is engaged in part-time duties and undergo vigourous and appropriate treatment for his posttraumatic stress disorder. Any upgrading his hours or duty should await meaningful clinical improvement and IME reassessment. A reasonable timeframe is three months.
….. From a psychiatric point of view, [the applicant] suffers from posttraumatic stress disorder and associated depressive symptomatology. This is moderately severe. With adequate and appropriate treatment I expect his symptomology to come under control. Without adequate and appropriate treatment there is a significant risk of chronic symptomology and associated disability.
…. From a psychiatric point of view, [the applicant] is currently capable of part-time interpreting work-ideally should be face-to-face in a suburban setting, as he has fallen into a pattern of behavioural withdrawal which is acting to exacerbate and perpetuate his post-traumatic symptomology.
I suggest that [the applicant] begin at two hours per day then increase over a four to six week period to four hours per day. Until there has been meaningful clinical improvement and a further IME assessment I suggest that he work no longer than four hours per day.
Commenting on the role of [the applicant] headache and photophobia (i.e. those symptoms directly attributable to his post-concussional headache/post-concussional syndrome) is outside the range of my specialty.
Beyond the symptoms attributable to [the applicant] medical condition, I could not identify any particular barriers with regard to his work performance or engagement in a return-to-work plan.
… Without addressing [the applicant’s] significant symptomology, there is no benefit in a simple graduated return to work-this does in fact run the risk of exacerbating his condition.
.. With very vigourous and appropriate treatment I expect [the applicant] to be fit for a graduated return to his usual hours and duties in three to six months.
… The proposed return-to-work plan is reasonable – my only suggestion is that there is a degree of flexibility, and if [the applicant] is unable to sustain expected hours then his hours are appropriately reduced.
[The applicant’s] hours of work should not be more than four hours per day until there has been meaningful clinical improvement and a further IME review.
The above opinion does not take into account any difficulties directly attributable to [the applicant]’s headache and photophobia – this issue should be addressed to Dr Stewart.
On 29 August 2016, the applicant’s GP, Dr Mann-Segal, again certified the applicant as having a capacity for suitable employment noting:
Flexible hours. Combination of phone & face to work. Work in 2 hours/d until 4/9/206 then 3 hours/day.
In a letter dated 29 August 2016 the applicant’s GP, Dr Mann-Segal, noted the applicant’s ongoing difficulty concentrating as a consequence of ongoing headache. Dr Mann-Segal notes that since the Nauru incident the applicant:
.. has had issues with depression & diminished mood. Sometimes feels that life is not worth living but no suicidal ideation. He feels that he is anxious most of the time. He says that he has panic attacks for 10-15 minimal triggered by innocuous noises at night. He always feels that someone is behind him. Has nightmares of predators chasing him.
On 16 August 2016, the applicant was referred to consultant occupational and environmental physician Dr Timothy Stewart. In his report dated 13 September 2016 Dr Stewart makes the following assessments:
[The applicant] stated the fines that when he wakes up at night with a nightmare the breaks into a cold sweat and feels as though there is an animal chasing him on a bridge. He again reiterated the fact that his normal life was working in Nauru where his colleagues and friends were and stated that the telephone interpreting is much easier where he sees the patient. Often the patient will nod to a question from the questionnaire and this dramatically helps the interpretation process.
… [the applicant] has had no major physical problems associated with his condition but appears to be suffering with what has been diagnosed by the psychiatrist as posttraumatic stress disorder. [the applicant] is participating in a return to work program and he is taking medication to help control the effects of the posttraumatic stress disorder. The diagnosis would appear to be that of a resolved head injury with residual posttraumatic stress disorder.
… It does appear to be consistency with the stated cause, in other words the physical injury did occur. There are no previous employers involved in the specific attack and [the applicant] appears to have had appropriate treatment and is now receiving psychiatric treatment.
In my opinion the prognosis in the short and long-term should be good and feel that [the applicant] will make a full and complete recovery both from the physical aspects of his injury and also from the posttraumatic stress disorder.
…. It is my belief that [the applicant] is suffering with posttraumatic stress disorder. This condition is outside my area of expertise and further comment would be best requested from a psychiatrist. However there does not appear to be any physical cause for the continuation of his symptoms.
.. I understand that [the applicant] is under treatment from the psychiatrist that includes the use of beta-blockers, antidepressant and straightforward analgesic medication. It may be appropriate as part of his rehabilitation that he performs the interpretation in the presence of his client rather than by telephone. This ought to permit a close observation of how he performs and also how the headache symptoms perform.
.. From a physical perspective there is no further treatment required.
.. I think that the medication is taking will help him fill the requirements of the interpreter position. I do not see any side effect of the medication that would affect him and feel that he is already back at work performing some interpretation work. This may be managed better … if he attends and visualises his client during the interpretation process. It appears anonymous interpretation is not working and a different approach is needed in the absence of a physical cause.
… [the applicant] is most definitely capable of participating in Section 37 of the SRC Act 1988 [rehabilitation program] but there must be some question about him interpreting telephone calls from his own home as compared with what he is doing in Nauru. Clearly he himself feels that the Nauru environment was much more normal for him and he very much wants to get back there. I would have him in the first instance interpreting the presence of his client and not by telephone. Progress can then be reassessed.
… These [RTW plan] conditions are within [the applicant]’s capacity.
.. There is great benefit with an individual returning to work and this has been verified with some of the health benefits of work. [The applicant] pointed out that he missed the interaction with the visible viewing of the patient where he could interpret the patient’s expression a great deal easier to provide an accurate interpretation of what they were saying. This is an observation which I believe is understandable and therefore would mimic that scenario as part of his rehabilitation ...
There does not appear to be medical evidence to suggest his headaches are caused by telephone-based interpreting, however for reasons stated above face-to-face interpreting should be considered as more appropriate RTW duty.
… There are no barriers that prevent [the applicant]’s from performing the duties in accordance with the RTW plan.
.. I think [the applicant] would benefit from participating in a graduated return to duties as there is no physical condition that prevents him from doing so.
.. The duties within the RTW plan are appropriate and [the applicant] is currently fit to return to normal hours.
.. It is my opinion that [the applicant]’s prognosis will be good.
On 28 September 2016, 31 October 2016, 13 December 2016 and 9 February 2017 the applicant’s GP, Dr Mann-Segal again certified the applicant as having a capacity for suitable employment subject to “flexible” hours with a recommendation of between 3.5 hours per day (28 September 2016) and four hours per day (from 31 October 2016) with a combination of phone and face to face work but with an effort to maximise face-to-face work.
On 28 September 2016 the applicant was referred to consultant clinical neuropsychologist, Mr Martin Jackson, for assessment. In a report dated 3 November 2016 Mr Jackson reached a number of conclusions in respect of his assessment of the applicant including as follows:
… [the applicant] continues to report a range of ongoing physical, communication, cognitive and behavioural/emotional problems. It indicates that these generally are not getting any better.
.. Overall, the results of the current neuropsychological assessment indicate that [the applicant] is a man of estimated average premorbid abilities who demonstrated intact (average or better) abilities in the areas of well-learned language skills (reading, vocabulary and general knowledge), basic construction skills, variable processing speed (one performance was average), planning/organisation skills and new learning and memory for stories. In contrast, performances in the low average range included some aspects of working memory (mental arithmetic and working memory span), a number of performances were in the borderline range including attention to visual detail, verbal abstract reasoning and visual logical thinking. Performances in the extremely low range include his ability to learn and remember information on most tasks, although this was somewhat variable and there were some incongruent performances (in recognition memory). He also had difficulty with multiple task processing.
[the applicant] reports ongoing issues with depression, anxiety and stress. Clinically he presents with a moderately depressed mood and the reduced range of emotional effect, although no overt symptoms of anxiety or stress. In contrast, on formal questionnaires, he reports symptoms suggestive of moderate to severe depression, as well as extremely severe anxiety and stress.
I’m of the opinion that [the applicant]’s primary problem is posttraumatic stress disorder and that his cognitive profile is consistent with a person with posttraumatic stress disorder. Persons with severe posttraumatic stress disorder tend to have impairments of processing speed and working memory, although this can be variable and this then has a secondary effect on complex new learning and memory, although again this can be variable. They may also have impairments of their abstract and logical thinking (which he has). Other cognitive skills tend to be generally intact, which they are in this case.
I note that [the applicant] was diagnosed with post-concussional syndrome and posttraumatic headache initially by Dr Catherine Stark and that Dr Peter Farnbach , Psychiatrist has supported this diagnosis on the basis that headaches are not core parts of PTSD.
On the basis of the injury as described, at worst [the applicant] suffered an extremely mild concussion with no retrograde amnesia, in a period of posttraumatic amnesia of only 30 seconds or so. A person with such a very mild concussion would be expected to recover from this quickly. Part of the problem here I believe is that he was observed and then shifted to home without due follow up with regard to the potential consequences of the assault. I note that the initial report from Dr Catherine Stark indicates that he did not report any previous psychiatric or psychological problems, which is a major issue in terms of diagnosis. [the applicant] clearly had a serious period of posttraumatic stress disorder back in 2005/2006 which required two years of treatment, although he does report a full recovery of symptoms. As has been indicated by Dr Majoor and Dr Farnbach (psychiatrists), this undoubtedly would have made him more prone to experiencing a further episode of post-traumatic stress disorder. Given that the initial episode of post-traumatic stress disorder was due to alleged torture and injury, being attacked for reason from behind by a man with a rock, certainly would be expected to trigger a significant emotional response.
I do not necessarily agree with the diagnosis of postconcussion syndrome. It is fairly well-documented in the scientific literature that the symptoms of post-concussion syndrome and acute stress disorder and posttraumatic stress disorder generally cannot be distinguished apart. The diagnosis as such is based on the incident that occurred and on the basis of the incident, the only reasonable conclusion that can be made is that he has PTSD, not a post-concussional syndrome. It is also noted that most posttraumatic headaches should be considered as a separate issue to a postconcussion syndrome as they are two different neurological processes.
It appears that the initial diagnosis of postconcussion syndrome/posttraumatic headache made in the context of being unaware of his previous psychiatric history may have resulted in a level of denial by [the applicant] as to what his ongoing issues are. It is very surprising that he has not received psychiatric or psychological treatment of note following this condition, especially when he stated that he recovered so well with two years of treatment from the previous episode of PTSD. If someone had had such a good response from treatment previously, you would think that they would be extremely keen to get treatment for a second episode.
… I am of the opinion that the medical information from the ·assault indicates that at worst [the applicant] suffered a very minor concussion from which he should have recovered quickly. He clearly has developed an episode of PTSD following this assault and this is in the context of having had an episode of PTSD ten years earlier for which he required two years of treatment. His neuropsychological profile and his presentation are completely consistent with someone with severe PTSD with symptoms of both depression and anxiety. His cognitive profile of variable processing speed, verbal working memory and a secondary effect on new learning ability (variable again) with some executive skills impairment is completely consistent with that seen in severe PTSD. Also, the tendency to give up on the tasks that he perceived to be harder (including tests of effort) is again quite consistent with someone with severe PTSD.
… I disagree with the previous diagnosis of postconcussion syndrome, as this was made in the context of not being aware of his previous episode of PTSD ten years earlier. As above, the symptoms of PTSD and postconcussion syndrome are almost identical and cannot be distinguished clinically. The diagnosis is based on the event and injury sustained and on the basis of that, the clear preferable diagnosis is PTSD.
Part of the difficulty in this case is that [the applicant] has become very focussed on having post-concussional syndrome and to a degree appears to be in denial with the severity of his PTSD. It seems strange that someone who had severe PTSD ten years ago which fully resolved with two years of therapy would not be actively seeking therapy again following another incident. His lack of seeking appropriate therapy for PTSD would suggest that he is in denial that his symptoms may be due to this and is very focussed on the postconcussion syndrome (head injury). The issue of a head injury and postconcussion syndrome is really a red herring in this case.
… I am of the opinion that [the Applicant] is not voluntarily exaggerating his symptoms. However, as part of his PTSD, he does have a tendency to give up when things seem to him to be too hard. If anything, one might consider that he is in denial about the severity of his PTSD symptoms and the effect that it is having on him.
… the neuropsychological assessment findings are completely consistent with someone with severe PTSD in that he has got variable processing speed, variable working memory, problems with new learning and memory (although somewhat incongruent) and some executive skills. lt is also consistent with the notion that he does have a tendency to give up if things look too hard.
…The prognosis for [the applicant] condition must be of concern. I note that both Dr Majoor, Psychiatrist and Dr Farnbach, Psychiatrist, as well as Dr Timothy Stewart (occupational and environmental physician} are somewhat optimistic in terms of saying he has got a good prognosis. Certainly, Dr Timothy Stewart is extremely optimistic to say that he is fit for full-time duties and hours. I am very concerned that [the applicant] has not received appropriate treatment for his PTSD including treatment by a psychiatrist (medication and possibly therapy), as well as appropriate treatment (systematic desensitisation) for his PTSD. [The applicant] is reporting that his symptoms are not getting better and this is not surprising given that he is not getting the appropriate treatment for his condition. In fact, he is not getting any treatment for his condition currently. II is not possible at this point in time to determine what his prognosis is until he has undergone a period of appropriate treatment.
… I am of the opinion that his condition of PTSD and associated cognitive impairment is related to his employment as an interpreter with the Department of Immigration and Border Protection and the incident of 9 November 2015.
.. There are no factors unrelated to work which have caused his current condition, although he certainly would have been considered at a high risk in the average person of having a trauma response to an incident due to his previous PTSD.
.. He reports an episode of PTSD due to torture in India back in 2005 which required two years of both therapy and medication. He reports total recovery from this. Nevertheless, this would certainly have made him more susceptible to having a trauma response to a further traumatic episode. Certainly, being assaulted for no reason from a person coming up from behind you would certainly be likely to trigger a trauma response given his previous history of torture.
.. I am of the opinion that the assault that occurred on 9 November 2015 (whilst employed in Nauru) is the only current cause of his current condition. It is noted that he may well have been more susceptible to developing or having an acute trauma response to an event, but there is certainly no evidence that prior to the assault, he had an active psychiatric condition.
… [The applicant] reported his treatment has generally been genera! practitioner consultations, three monthly reviews by a neurologist and only one psychological consultation back in January 2016. He has tried a number of medications for his headaches, but he has only been taking medication for pain. He has not had ongoing treatment for his psychiatric disorder, either in terms of medication or counselling.
.. It is clear that [the applicant] requires appropriate psychiatric treatment (potentially medication) and psychological therapy (cognitive behavioural therapy, in particular, systematic desensitisation which is shown to be the really main effective treatment for PTSD). As above, it is quite surprising that he has not actively sought such treatment to date given his previous history of PTSD and the report that he makes that treatment was successful.
He urgently needs treatment from a psychiatrist and a clinical psychologist for his PTSD. Given that we are now nearly at one year post injury without appropriate treatment, there is a danger of his condition becoming chronic and intractable. Treatment is urgently needed.
Furthermore, I note that Dr Peter Farnbach suggested he needs 12 months of treatment, however, I suspect it may be much more. This is because of the context of his preceding posttraumatic stress disorder requiring two years of therapy and medication to get complete resolution of symptoms. Given his previous history of PTSD, the obvious severe condition that he is currently experiencing and a lack of appropriate treatment to date, I am concerned that this is going to take quite a while to treat. He needs to start now and he needs psychological therapy on a weekly basis.
…. I am of the opinion that [the applicant] should not be at this point in time increasing the work that he is doing (three hours of telephone counselling a day). I note that he reports that he cannot work if his headaches are too bad. I am of the opinion that his neuropsychological profile is accurate and indicative of his day-to-day function, although he does have this tendency to give up when things appear to be too hard. Given the variability in his processing speed and his working memory and the variability in his new learning and memory skills, this is likely to have a major impact on employment. The one advantage is that his employment is interpreting and so all he really has to do is interpret exactly what people are saying, both in English and in Tamil. This does not require a great deal of executive skill nor a great deal of new learning and memory ability. However, it does require attention and working memory skills; Given his poor attention to detail and his tendency to occasionally tune out, there is the propensity of him missing information when doing interpreting, although the likelihood of this is not great. Whilst it would certainly be part of his therapy to have a graduated return to work program, I would not consider increasing it until therapy is underway and there is reported improvement in his symptoms and management of his condition by his treating therapist. Trying to increase his hours should be part of his formal therapy program.
Work capacity during relevant period
The respondent concedes that the applicant suffered from his accepted conditions but maintains that the applicant ceased to have an employment incapacity in connection with those conditions from 24 November 2016 and therefore was not entitled to incapacity payments in respect of the conditions after that date. The respondent contends that between 22 August 2016 and 24 November 2016 the applicant was entitled to partial incapacity payments.
The respondent contends that the applicant’s work capacity during the relevant period was as follows:
(a)for the period between 22 August 2016 and 4 September – 10 hours per week;
(b)for the period between 5 September 2016 and 26 October 2016 – 15 hours per week;
(c)for the period between 27 October 2016 and 23 November 2016 – 17.5 hours per week; and
(d)for the period between 24 November 2016 and 1 March 2017 – 20 hours per week.
In support of its position the respondent relies in particular on the certified work capacity provided by the applicant’s GP, Dr Mann-Segal, which is consistent with the graduated increase in the applicant’s work capacity as set out above and also consistent with the applicant’s revised return to work plan. The revised return to work plan provided that the applicant commence at two hours per day increasing to four hours per day with flexible hours and a combination of telephone based and face to face interpreting.
The respondent also relies on the reports of Dr Farnbach and Dr Stewart. In his report dated 22 August 2016 Dr Farnbach concludes that the applicant has a work capacity of two hours per day and then increasing over a four to six week period to four hours per day. In his report dated 13 September 2016 Dr Stewart concludes that the applicant is fit to return to work at normal hours consistent with the return to work plan. The respondent contends that the applicant has not presented any compelling independent evidence to the Tribunal that would support an alternative assessment of the applicant’s work capacity during the relevant period.
It is somewhat more difficult to precisely bed down the applicant’s contentions in respect of his work capacity during the relevant period. Part of the difficulty arises from the fact that the applicant was unrepresented and, as a consequence, there is a level of imprecision in relation to the applicant’s contentions. However, it is clear to the Tribunal that the applicant contends that his actual work capacity during the relevant period continued to be below the level of his work capacity prior to his injury and on that basis the applicant contends that he was entitled to continue to receive incapacity payments during that period. It is also clear that the applicant believes that his work capacity was more limited when undertaking telephone based work as opposed to face to face work. However, the applicant’s primary argument would appear to be more focused on the method by which the respondent has assessed his normal weekly hours for the purpose of calculating incapacity payments. The applicant contends that his normal weekly hours prior to his injury were substantially higher than the amount determined by the respondent and that he continues to have a work capacity well below his pre-injury level for that reason. The Tribunal addresses the normal weekly hours issue further on in these reasons. The Tribunal accepts, however, that the applicant does not concede that the work capacity position as put by the respondent is correct.
In his direct evidence the applicant did not specifically challenge the work capacity levels as certified by his GP Dr Mann-Segal although he told the Tribunal that he continued to be offered telephone based work and not face to face work during the relevant period which he believed limited his actual capacity to work. This was because the telephone based work caused the applicant headaches which made it more difficult for him to undertake the work. He told the Tribunal that his capacity to do telephone-based work is less than that certified by Dr Mann-Segal.
The applicant called his current treating psychiatrist, Dr Samantha Loi, to give evidence at the hearing. Dr Loi told the Tribunal that she first saw the applicant in June 2010 to May 2012 which was prior to the applicant suffering his present conditions and then did not see the applicant again until 27 March 2017 which was after the end of the relevant period. The respondent contends that given these circumstances Dr Loi’s evidence regarding the applicant’s work capacity during the relevant period should be given no weight. The Tribunal accepts the respondent’s contention in this respect. In any case, Dr Loi confirmed to the Tribunal that in her consultation with the applicant in March 2017 she did not consider the applicant’s work capacity and that she did not believe she was in a position to make any assessment as to the applicant’s work capacity in the period prior to that consultation.
Having considered all of the independent medical evidence the Tribunal accepts the respondent’s position in relation to the applicant’s work capacity during the relevant period. The Tribunal accepts that the certified level of work capacity provided by the applicant’s GP, Dr Mann-Segal, is substantially consistent with that put by the respondent. The Tribunal places significant weight on Dr Mann-Segal’s assessment given that he has maintained an ongoing engagement with the applicant during the course of his injury and has therefore had the opportunity to observe him closely.
In addition, the Tribunal accepts that the reports of both Dr Farnbach and Dr Stewart further support the respondent’s contention in respect of the applicant’s work capacity. Dr Farnbach’s report, in particular, would appear to be consistent with the graduated nature of the proposed return to work plan in place for the applicant and also substantially consistent with the graduated nature of the applicant’s work capacity as certified by Dr Mann-Segal.
However, the Tribunal considers it appropriate to also address the consideration given to the applicant’s circumstances by Mr Jackson in his report dated 3 November 2016. Mr Jackson states that in his opinion the applicant’s primary condition is not the physical injury resulting from the Nauru incident but rather the psychological injury the applicant suffered in the form of post-traumatic stress disorder. He is somewhat dismissive of the earlier suggestion by Dr Stark that the applicant may have suffered from post-concussional syndrome or post-traumatic headache. The Tribunal accepts each of Mr Jackson’s conclusions in this respect. Mr Jackson also expresses significant concern regarding what he considers to be a lack of substantive treatment in relation to the applicant’s PTSD. Specifically, in relation to the applicant’s work capacity, Mr Jackson states that he does not consider it appropriate that the applicant undertake work beyond what he is currently doing which he describes as being three hours of telephone based work a day. Mr Jackson assessed the applicant at the end of September 2016. Three hours per day was consistent with Dr Mann-Segal’s certification at that time and also consistent with the return to work plan in place at that time. It is also noteworthy that, when describing the applicant’s work capacity as being consistent with his current level, Mr Jackson is referring to telephone-based work alone. It is clear from the evidence that the applicant’s work capacity was higher with the potential for some face to face work. This is consistent with observations made by both Dr Farnbach and Mr Stewart in their respective reports as well as in the notes to Dr Mann-Segal’s work capacity certificates. The applicant’s return to work plan was adjusted to allow for some face to face work consistent with these observations. Allowing for the adjustments made to the applicant’s return to work plans the Tribunal is satisfied that the applicant’s work capacity from 24 November 2016 to 1 March 2017 was 4 hours consistent with the delegated review officer’s decision.
For these reasons, the Tribunal is satisfied that the applicant’s work capacity during the relevant period is consistent with the position put by the respondent as set out above.
Normal weekly hours determination
There is disagreement between the parties in relation to an earlier determination by the respondent regarding the calculation of the applicant’s normal weekly hours for the purpose of his incapacity entitlements. An earlier determination made by the respondent dated 21 January 2016 provided that the applicant’s normal weekly hours were 15:54 hours. That determination, which was in turn based on the advice supplied by the Department, has formed the basis for the calculation of the subsequent incapacity payments to the applicant. However, it is of some concern to the Tribunal that there appear to be quite a number of discrepancies in the precise figure referenced in relevant documentation including within the reviewable decision itself.
The applicant queried the initial calculation of his normal weekly hours on the basis that he believed the amount of hours was significantly less than his normal weekly hours and, in particular, having regard to the hours worked in the two week period prior to his injury. The respondent subsequently provided clarification to the applicant that the methodology adopted in calculating the applicant’s normal weekly hours was based on an averaging out of the applicant’s hours worked and weekly earnings over the course of a 12 month period. The respondent explained that this methodology had been adopted to take account of significant fluctuations in the applicant’s work patterns through the course of a year.
In his direct evidence, the applicant told the Tribunal that he had worked as a professional interpreter with the Department since around the end of 2012. The applicant conceded that his work patterns did fluctuate but that his usual pattern of work involved fly in and fly out deployments which typically ran for eight weeks on and two weeks off. The applicant told the Tribunal that he did not believe that his work pattern could be fairly described as being ‘seasonal’. He told the Tribunal that the work involved both interstate and international work, typically in detention centres. The applicant acknowledged that on occasion at the end of a deployment he would take an extended period of time off. He told the Tribunal that the longest period he had taken off was six to seven weeks. He told the Tribunal that he would typically work nine to ten months of the year over the course of a 12 month period. The applicant acknowledged that his overall hours of work may have declined to some degree over the full course of his employment. The applicant told the Tribunal that the general practice was for a working day starting at 7am and running until 7pm and that for any blocks of 15 minutes of time beyond eight hours of work the applicant would be paid overtime but allowing for an half an hour lunch break. He was also given one day off per week. The Department typically provided accommodation in the form of self-contained units. The applicant told the Tribunal that his typical hours during a deployment was closer to 60 hours per week which is substantially in excess of the normal weekly hours determined by the respondent. The applicant told the Tribunal that he did not believe that the particular 12-month averaging period applied by the respondent fairly reflected his normal hours prior to his injury. He told the Tribunal that he believed that the default two week period that ordinarily applies in accordance with section 9(1) of the Act would be a fairer averaging period to apply in calculating his normal weekly hours. The applicant told the Tribunal that if the Tribunal did not consider the two week period to be appropriate he was not able to identify what would otherwise be a fair period to apply other than to say that he considered the 12 month period to be inappropriate.
The respondent contends that the issue of the applicant’s normal weekly hours is not within the scope of matters before the Tribunal noting that the previous determination on these matters had not itself been the subject of a request by the applicant for review before the AAT and also the respondent contends that the calculation of normal weekly hours was not considered by the delegated review officer and therefore does not form part of the reviewable decision presently before the Tribunal. The respondent contends that in those circumstances any reconsideration of the applicant’s normal weekly earnings or normal weekly hours is outside the jurisdiction of the Tribunal. Alternatively, if the Tribunal determines that the matter is within the jurisdiction of the Tribunal then the respondent contends that the normal weekly hours amount relied on by delegated review officer is correct and more specifically that the application of a 12-month averaging period for calculating the applicant’s normal weekly hours was reasonable in all the circumstances and consistent with the Act.
While the Tribunal accepts that the respondent’s earlier determination of the applicant’s normal weekly hours was not itself the subject of a request for review by the applicant before the Tribunal and nor was the issue specifically considered in the second-tier review in respect of the reviewable decision presently before this Tribunal, the Tribunal is satisfied that it does have jurisdiction to consider the matter. In the Tribunal’s view, notwithstanding that the second-tier review of the reviewable decision did not specifically revisit the calculation or methodology adopted for determining the applicant’s normal weekly hours, the decision-maker certainly had the power to reconsider the matter had they deemed it appropriate to do so. That is because, in the Tribunal’s view, the calculation of the applicant’s normal weekly hours forms an essential component of the reviewable decision presently before the Tribunal. The delegated review officer clearly referenced the calculation in reaching her decision and in fact it would not have been possible for her to make her decision without having regard to that calculation.
In undertaking a review of the reviewable decision the Tribunal is empowered with all of the powers of the original decision-maker and is charged with the responsibility of reaching the correct or preferable decision in relation to the subject matter of the reviewable decision based on all of the evidence before it. If there is evidence presented before the Tribunal that brings into question the correctness of the calculation or the methodology adopted by the respondent in undertaking the calculation then in the Tribunal’s view, in undertaking its function to reach the correct or preferable decision in respect of the reviewable decision not only would it be within the Tribunal’s jurisdiction to revisit the issue it would be incumbent on it to do so.[1]
[1] See for example Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 and Re Menz and Border Express Pty Ltd [2012] AATA 203.
Therefore, the immediate question is whether the Tribunal is satisfied on the basis of the evidence before it that either the calculation itself or the methodology applied in calculating the applicant’s normal weekly hours is incorrect or otherwise inconsistent with the Act such that the amount of the applicant’s normal weekly hours applied by the delegated review officer should be set aside and be substituted for some other amount.
The applicant contends that the methodology adopted in the earlier determination is inappropriate. More specifically, the applicant contends that his normal weekly earnings and normal weekly hours should be averaged out applying either the standard two week relevant period provided for in section 9(1) of the Act or alternatively on the basis of an averaging of his earnings over some other unspecified period but not the 12 month period applied by the respondent. The applicant contends that the 12 month period applied by the respondent is inappropriate for two reasons. First, the applicant contends that the Act provides for a default period for calculating normal working hours, namely a two week period as provided for by section 9(1) of the Act, and in those circumstances the default position should be applied. In addition, the applicant contends that the 12 month period that has been adopted by the respondent for determining the normal weekly hours is inappropriate because it dilutes the averaged amount of his hours as a consequence of including within the averaging period a period of time during which the applicant chose not to work.
The respondent contends the default two-week period is inappropriate because the applicant worked a disproportionately higher number of hours during that period and therefore if that period is applied it results in an amount which is not fairly reflective of the applicant’s normal weekly hours. The respondent contends that the 12 month period in all the circumstances is the appropriate period to calculate the applicant’s normal weekly hours precisely because that period does factor in the time during which the applicant elected not to work. The respondent contends that the extended period the applicant did not work during that 12 month period is reflective of the practice that the applicant had applied through the course of his employment. In addition, the respondent contends that applying some further extended period, for example 2 years or three years, would not be appropriate given that the applicant had a demonstrated a pattern of reducing the amount of hours that he worked over the course of that extended period such that a longer period being applied would again result in an averaged amount that does not fairly represent the applicant’s normal weekly hours prior to his injury.
It is clear that the rationale for the applicant seeking the alternative relevant period for averaging his normal weekly earnings and normal weekly hours is a belief that the adoption of that alternative period would produce a higher normal weekly earnings and normal weekly hours amount. However, that does not necessarily mean that the adoption of the alternate relevant period as proposed by the applicant would be a fairer or more accurate representation of the applicant’s normal weekly hours taking account of the variability in his working pattern over the course of a year.
There is no question that the nature of the applicant’s work is sporadic and fluctuates significantly over the course of a year. The respondent has conceded that the use of the word “seasonal” in the respondent’s earlier determination was unfortunate and not strictly speaking accurate but it is clear that at certain times of the year the applicant’s hours are higher and at other times of the year they are lower. In those circumstances the Tribunal is satisfied that the standard relevant period of two weeks prior to injury provided for in section 9(1) of the Act would not amount to a fair representation of the applicant’s normal weekly earnings or hours. Similarly, the Tribunal is satisfied that there is no reasonable basis for adopting a period somewhere in between 12 months and the default two week period, for example either a nine-month period or a six-month period, as such an amount would not reflect the applicant’s practice of taking a number of weeks off each year. Similarly, the Tribunal is satisfied that it would not be appropriate to apply a further extended period beyond 12 months on the basis that it accepts the respondent’s contention that the applicant had reduced his hours of work year-on-year over the course of his employment. This conclusion is supported by the payslip evidence provided to the Tribunal. By contrast, the Tribunal is satisfied that the adoption of the 12-month period takes account of the fluctuation of the applicant’s working hours over the course of the year as well as allowing for the applicant’s practice of taking a number of weeks off each year and consequently presents a fairer representation of the applicant’s normal weekly hours.
For these reasons, the Tribunal is satisfied that the adoption of the 12-month averaging period applied by the respondent was a fair and reasonable period to be applied in calculating the applicant’s normal weekly hours in accordance with section 8(5) of the Act.
However, in relation to the actual calculation of the applicant’s normal weekly hours the Tribunal does retain a number of concerns. As referred to earlier, there were a number of discrepancies in the figure adopted by the respondent as being the amount of the applicant’s normal weekly hours in the materials before the Tribunal. The first normal weekly hours figure adopted by the respondent for the purpose of calculating incapacity payments was the amount of “15:54” as set out in the 21 January 2016 determination. This figure was then changed in the determination dated 23 February 2016 to “17:53” for reasons that are not explained. The reconsideration determination dated 1 March 2016 determined the amount to be “17.54”. The determination dated 2 March 2016 again referenced “17:53” and that appears to be the figure most consistently applied thereafter. However, throughout the materials before the Tribunal this amount has been referenced in a number of other ways including as 15 hours and 54 minutes, 15.54 hours, 17.89 hours, 17.88 hours, 15.88 hours and 15.89 hours. There is also a reference in the payslip documentation included in the Tribunal’s materials that describes the normal weekly hours as being “40”[2]. It is not clear whether this reference is one erroneously based on the example of 40 hours set out in the normal weekly advice form or whether it is based on some other form of calculation not otherwise explained or just a simple error. It is clear to the Tribunal that when the Department first made the calculation the officer undertaking that calculation had not previously undertaken a calculation of that kind. It would appear on the basis of the materials that the normal weekly hours amount was determined by identifying the total amount the applicant earned from his employment over the course of 12 months prior to the date of the injury and dividing that number by 52 to get a weekly earning amount. The precise basis on which the normal weekly hours amount itself was determined is not clear to the Tribunal. It is also not clear how the hours calculation has factored in the variable hours the applicant appeared to work when on deployment. Given these circumstances and in light of the inconsistencies in the various reference to the normal weekly hours amount included in the materials, the Tribunal is not satisfied that the normal weekly hours amount adopted by the delegated review officer for the purpose of making the decision under review is reliable. In the Tribunal’s view, in all the circumstances, it is appropriate that the normal weekly hours figure be recalculated applying the 12 month averaging period and having very careful regard to the typical working arrangements the applicant undertook while on deployment in order to ensure that the determined normal weekly hours amount is correct.
Conclusion
[2] See the “Claim for time off work form completed by Anna Trish dated 8/11/2016.
For these reasons, the Tribunal considers it appropriate to set the decision under review aside and to remit the matters back to the decision-maker to recalculate the applicant’s normal weekly hours applying a 12 month averaging period and having regard to the matters identified in these reasons and then on the basis of that calculation confirm the applicant’s incapacity payments entitlement for the relevant period having regard to the Tribunal’s conclusions in relation the applicant’s work capacity as set out above.
Decision
The decision under review in respect of each of the applications is set aside and each matter is remitted to Comcare to give effect to the findings of the Tribunal as set out in the reasons to this decision.
I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member
............................[sgd]............................................
Associate
Dated: 30 June 2021
Date(s) of hearing: 5 August 2019, 16 August 2019 Date final submissions received: 10 October 2019 Applicant: In person Advocate for the Respondent: A. Ghaleb & M. Snell Solicitors for the Respondent: Lehmann Snell Lawyers
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