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VETERANS' AFFAIRS - claim for permanent incapacity compensation - accepted condition of adjustment disorder with elements of post-traumatic stress disorder - previous decision of Administrative Appeals Tribunal that condition resolved within 6 months of service - conflicting medical evidence as to continuing condition - decision under review set aside and substituted with decision that respondent not liable to pay compensation.

Administrative Review Tribunal Act 2024 (Cth)

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)

Boots and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 177

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535

Comcare v Power [2015] FCA 1502

Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468

Perich and Secretary, Department of Social Services [2018] AATA 963

Guide to the Assessment of the Degree of Permanent Impairment - Edition 2.1

1. On 20 May 2024, the applicant, Mr Boots, made an application for review[1] to the General Division of the Administrative Appeals Tribunal (the AAT)[2] of the decision by the Military Rehabilitation and Compensation Commission (the Commission) to affirm the determination that compensation was payable to Mr Boots for his accepted condition of 'adjustment disorder with element of post-traumatic stress disorder' at a whole person impairment rating of 10% under ss 24 and 27 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA).
2. Mr Boots gave evidence at the hearing as did his mother, Mrs Boots. Dr Tony Davis, a psychiatrist, gave evidence at the hearing. Mr Boots was self-represented. Mr Jamie Watts, Australian Government Solicitor, represented the Commission.
3. The Tribunal admitted into evidence the exhibits which are listed in the annexure to these reasons.

1. There is no factual dispute of any significance in this matter. The scope of dispute is in respect to the medical evidence as to the degree of permanent impairment Mr Boots suffers because of his condition of 'adjustment disorder with elements of post-traumatic stress disorder' (the Accepted Condition).
2. The non-contentious facts are:

(a) Mr Boots was born in 1972 and is now aged 53 years old.

(b) Mr Boots served in the Australian Army (Army) for approximately 6 weeks in the period October to December 1992 as a recruit at the 1st Recruit Training Battalion (Kapooka).[3]

(c) On 3 February 2017, the AAT, constituted by Deputy President Bean and Member Stephan, decided that the Commission was liable to pay compensation to Mr Boots for the Accepted Condition under s 14 of the DRCA (the AAT Decision).[4]

(d) The AAT Decision states that it was assisted by the opinions of Dr Nagesh, Mr Boots' treating psychiatrist, and Dr's Ewer and Davis, psychiatrists retained by the Commission, and in this respect says at [15]-[22]:

1. In their joint written memorandum, all three doctors agreed (consistently with the respondent's concession), that Mr Boots had suffered an adjustment disorder with elements of PTSD from late 1992 and for about six months thereafter. They also agreed that the conditions from which Mr Boots was currently suffering and had been suffering following his Army service were schizoaffective disorder, cannabis abuse, paranoid personality traits/disorder, compulsive gambling and vulnerable personality.
2. With respect to causation, none of the doctors considered there was any connection between Mr Boots' service and his paranoid personality traits/disorder, compulsive gambling or vulnerable personality. Accordingly, we do not need to consider those conditions further.
3. With respect to Mr Boots' schizoaffective disorder, all three doctors ultimately agreed that there was no direct connection between Mr Boots' Army experiences and his adjustment disorder on the one hand, and the development of his schizoaffective disorder on the other. However, each of them conceded that it was quite possible that his cannabis abuse had brought forward the onset of his schizoaffective disorder and contributed to the disorder to that extent. In determining whether there was a causal connection between Mr Boots' service and his schizoaffective disorder, it is accordingly important to scrutinise his cannabis use and the development of his condition of cannabis abuse. Clearly, if Mr Boots' service contributed to the development of his condition of cannabis abuse, it could potentially be regarded as having contributed to the schizoaffective disorder as well.
4. During their oral evidence, all three doctors ultimately accepted that, assuming Mr Boots began to use cannabis regularly soon after his discharge from the Army, there was a causal connection between his Army experiences, the development of his adjustment disorder and his cannabis use. On the evidence before us, we accept that Mr Boots' cannabis use did commence shortly after his discharge from the Army, and that those Army experiences contributed to his cannabis usage at that time.
5. Critically, however, none of the three doctors accepted that there was a sufficient causal relationship between Mr Boots' cannabis use following his discharge and the development of his condition of cannabis dependence/abuse such that his Army service made an indirect (and meaningful) contribution to his development of schizoaffective disorder in 1995. Dr Nagesh appeared to express an opinion along those lines in one of his earlier reports, however he clearly resiled from this during his oral evidence before us.
6. In the event therefore, while there is medical evidence before us which links Mr Boots' cannabis abuse with the development of his schizoaffective disorder, there is no medical evidence which supports a link between Mr Boots' Army service and the development of his condition of cannabis dependence/abuse which, in turn, contributed to his schizoaffective disorder.
7. Clearly, in order to establish a causal connection between his service and his schizoaffective disorder, Mr Boots would need to show links between his service, his cannabis use, the development of cannabis dependence and the subsequent development of schizoaffective disorder. However, in the event, the medical evidence does not support one of the links in that chain of causation, namely the link between cannabis use and cannabis abuse.
8. It follows that there is no medical evidence before us which would support a conclusion that Mr Boots' Army service made a material contribution to his cannabis abuse or schizoaffective disorder. Accordingly, we are not satisfied that the requisite causal connection has been established.

(e) The 'Joint Written Memorandum of Dr Rajan Nagesh, Dr Marty Ewer and Dr Tony Davis' (Joint Expert Opinion) referred to in the AAT Decision, opines that Mr Boots suffered from the Accepted Condition for a limited duration, with all three doctors agreeing that it had resolved 6 months after the end of Mr Boots' Army service in 1992 and that he suffered some impairment or incapacity for work for up to 6 months.[5]

(f) On 16 June 2022, Mr Boots asked the Commission for a claim for permanent impairment to be lodged.[6]

(g) By a determination dated 30 August 2023, the Commission determined that Mr Boots had permanent impairment of 10% for the Accepted Condition. [7]

(h) On 30 August 2023, Mr Boots made a request for reconsideration.[8]

(i) On 15 March 2024, the Commission affirmed the decision dated 30 August 2023, which is now under review before the Tribunal (the Reviewable Decision). [9]

1. The Commission framed the issues before the Tribunal as:

(a) Whether Mr Boots stills suffers from the Accepted Condition.

(b) Whether any impairment resulting from the Accepted Condition is permanent.

(c) If the Tribunal accepts that Mr Boots still suffers from the Accepted Condition and accepts that it is permanent, what is the degree of whole person impairment (WPI) resulting from the Accepted Condition under the provisions of the Guide[10].

(d) What amount of compensation is payable for non-economic loss under s 27 of DRCA

1. The issue for the Tribunal to determine is whether Mr Boots still suffers from the Accepted Condition, such that he is entitled to compensation under ss 24 and 27 of the DRCA.

1. Dr Nagesh, Mr Boots' treating psychiatrist, in a letter to Dr Jaksic, Mr Boots' treating general practitioner, dated 3 May 2023, states:[11]

Peter has had a longstanding claim with the DVA, which after a convoluted process eventually was tabled with the Administrative Appeals Tribunal, and in 2016-2017. AAT's final judgement/determination came out after a process of concurrent expert evidence wherein I was involved along with two other psychiatrists. The DVA admitted a limited liability for him to have suffered with Adjustment Disorder with Mixed Emotional Disturbance in the form of Anxiety and Depression and elements of PTSD for a period of six months after his army experience. I have over the years felt very strongly about advocating for Peter and to the best of my ability have tried to support him during this claim process. I was convinced at the time of the AAT hearing that if Peter got some modicum of recognition of his suffering, he could get on with the rest of his life. I thought we had achieved that except that Peter seems to have continued to feel as though he has not been given a fair go in the whole process. He certainly brought up his suffering in the form of feeling anxious, depressed, irritable and wrongly done by DVA whilst experiencing flashbacks and nightmares about his army experience from time to time (albeit infrequently) whilst outwardly appearing to be functioning ok on a day-to-day basis. He has not always brought his subjective experiences for discussion with me at his follow-up-reviews. He has been compliant with his medications and certainly I do not see any evidence of any florid psychotic symptomatology other than a degree of chip on the shoulder attitude that he carries about various systems, people in authority and DVA in particular. I do not know how to best support Peter at this stage in connecting the dots for him by providing the substantiating report that would rather be at odds with hat I have said hitherto. I have also tried to explain that for long I have stopped doing medicolegal reports and would not be able to help him anyway. Peter hopes to get a report confirming that he continues to suffer from PTSD and/or a condition namely the Adjustment Disorder with Mixed Emotional Disturbance with features of anxiety and depression that was accepted by the DVA post AAT determination to be compensable for a six-month period after Peter finishing with the Army, long time ago. Peter believes that you have agreed to help him with the necessary medical report. That is the case, and with Peter's permission I am enclosing yourself, dated 29th June 2022 and my last report submitted on 3rd August 2017, for your perusal. I do hope that those reports are self-explanatory. It may well be that Peter may have to look at getting further advice from the concerned authorities as to what his rights are at this stage stop Peter is convinced that he continues to suffer with the ongoing symptomatology with sufficient severity which is the point of dissension as I have tried to explain repeatedly over the years.

1. Dr Nagesh provided a written report, dated 7 July 2023, that relevantly provides that:[12]

(a) Dr Nagesh had been treating Mr Boots for his psychiatric issues for 22 years.

(b) Dr Nagesh was no longer undertaking medicolegal work since 2019 but made an exception for the present report.

(c) Dr Nagesh answered, 'yes' in response to the question 'Dr Jaksic provided a rating of 205 under table 5.1 of the Permanent Impairment Guide wholly due to 'Adjustment Disorder with elements of PTSD', do you agree with this rating?'.

(d) In the reasons for the rating, Dr Nagesh states:

Mr Boots continues to suffer from rumination, flashbacks, nightmares, associated with his negative and traumatic army experience frequently. The frequency and severity varies in response to specific as well as non-specific triggers. Specific triggers are anything to do with The Army as and when reported in the news media and social media and also anniversary times to do with ANZAC Day services. The non-specific triggers are in a way of anything to do with Mr Boots feeling undermined, negatively judged and feeling as though he has been taken advantage of. He tends to get anxious, depressed and displays irritability toward family members, professionals and limited friends that he has. He does wear a chip on his shoulder and feels as though he cannot trust anyone due to the fact that several systems have shortchanged him and inflicted injustice by not validating his suffering.

I agree with 20% permanent impairment caused by the subject condition of Adjustment Disorder with elements of PTSD in Mr Boots' functionality is evident in various domains of his life including mood disturbance, thinking disturbance, compromised judgement all impacting collectively on his ability to self-care, motivate self to the day to day tasks both in and around the house, attend to his family obligations, maintenance of social relationships and ability to embrace adapting coping mechanisms that are healthy for him in a consistent manner.

1. Doctor Alex Jaksic, Mr Boots' treating general practitioner, provided a permanent impairment assessment report, dated 6 June 2023, that relevantly states:[13]

(a) Mr Boots diagnosis of the 'accepted condition' is 'adjustment disorder with elements of PTSD';

(b) Mr Boots diagnosis of his current condition is 'chronic PTSD'; and

(c) Mr Boots' degree of impairment is 20%.

1. Doctor Tony Davis, consultant psychiatrist, gave evidence at the hearing. He gave evidence as to the process the Joint Expert Opinion was prepared and how Dr Nagesh, Dr Ewer and he had reached consensus as to the opinions contained in that report and on his review the report 'seems very congruent and internally consistent'.
2. Dr Davis was asked by Mr Watts to provide his opinion on the report of Dr Jaksic, dated 6 June 2023 and Dr Nagesh, dated 7 July 2023. Dr Davis proffered that in his opinion that the findings in these reports was inconsistent with the initial diagnosis and Mr Boots' adjustment disorder had resolved 'and as such any later life disability or impairment can't be constructed in terms of that condition'.
3. Dr Davis went on to say,

'In my mind, if you had a chronic adjustment disorder that went on and remained symptomatic and dysfunctional because of that from the outset, you might be able to argue it, although there are a lot of other intermediate variables anyway, but to on the strength of what we saw at the tribunal hearing and the consensus we reached, I am at a loss to explain that later opinion'.

1. During cross examination, Dr Davis did not resile from his opinion that Mr Boots' adjustment disorder had resolved.
2. Dr Davis was a credible and persuasive witness. He provided a rational basis for his opinions and the facts upon which he relied to form his opinion.

1. Mr Boots contends that the Tribunal should accept the evidence of Dr Jaksic as contained in the permanent impairment assessment dated 6 June 2023 as well as the written report of Dr Nagesh dated 7 July 2023 as determinative that his level of permanent impairment is 20%.
2. Mr Boots and his mother Mrs Boots gave statements to the Tribunal addressing the impact of Mr Boots' Army service on the mental health of Mr Boots[14] as well as giving oral evidence at the hearing.
3. The Tribunal considered their evidence to be sincere and an honest explanation of the events that have affected Mr Boots' mental health during his life, including a family history of schizophrenia.

(a) Mr Boots suffered from the Accepted Condition for a period of 6 months after Mr Boots served in the Army and has no present permanent impairment. > > (b) The evidence of Dr Jaksic and Dr Nagesh that says Mr Boots has permanent impairment of 20% from the Accepted Condition should not be accepted because: > > (i) Dr Nagesh has resiled from his evidence given in the AAT Decision and his report of 7 July 2023 is inconsistent with his letter of 3 May 2023 to Dr Jaksic. > > (ii) Dr Jaksic 'has not provided any justification or clinical notes in the context of him providing his report to DVA on 6 June 2023 and there is no reference to the schizoaffective disorder Dr Jaksic has previously referred the applicant to Dr Nagesh for'. > > (c) Citing Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 at [10] in respect of the equivalent provisions of the Safety, Rehabilitation and Compensation Act 1988:

...First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of "injury" is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident...

(d) The Reviewable Decision should be set aside, and the Tribunal should substitute the decision with a decision that Mr Boots is not entitled to any compensation under s 24 of the DRCA as his 'adjustment disorder with elements of post-traumatic stress disorder has resolved'.

1. The High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 at [49] explained that the first task the Tribunal must undertake under the SRC Act (the DRCA is relevantly on the same terms) is to consider the facts to determine if the employee is suffering a 'disease' or an 'injury'.
2. There is no doubt that Mr Boots suffered an injury. In the AAT Decision, the AAT had the opportunity to obtain the concurrent evidence of three psychiatrists, including Dr Nagesh and Dr Davis, to determine that Mr Boots suffered from 'adjustment disorder with elements of post-traumatic stress disorder'. The AAT went on, accepting the concurrent evidence of the experts, to say that condition resolved withing 6 months of Mr Boots finishing his Army service.
3. The Tribunal takes note of the decision of Pollock v Wellington (1996) 15 WAR 370 (Pollock), as Anderson J, at 3, states:

Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts: see Ramsey v Watson [1961] HCA 65; (1961) 108 CLR 642; Trade Practices Commission v Arnotts Ltd (1990) 21 FCR 324; Parric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 845-846.

As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it: see Steffen v Ruban (1966) 84 WN (Pt 1) (NSW) 264.

1. The guidance from Pollock is particularly persuasive in the present circumstances due to the lack of explanation by Dr Nagesh and Dr Jaksic in their determination that Mr Boots continues to suffer from the Accepted Condition. Neither gave evidence at the hearing and their opinions contained in their respective reports of 7 July 2023 and 6 June 2023 provide no basis for the Tribunal to discern how they came to the view that Mr Boots continues to suffer from the Accepted Condition in contradiction of the Joint Expert Opinion.
2. The Tribunal cannot give the report of Dr Nagesh dated 7 July 2023 any weight because he does not explain its inconsistency with the remainder of his evidence and opinion (including in the Joint Expert Opinion), as lately as he opines on 3 May 2023 that the Accepted Condition has resolved.
3. As Mr Boots treating psychiatrist, Dr Nagesh has failed to be objective in his opinion and fallen into a position of advocating for Mr Boots against his long-held opinions that the Accepted Condition had resolved long ago.[16]
4. The Tribunal is also not persuaded to give the evidence of Dr Jaksic any weight.
5. Dr Jaksic provides for a diagnosis of 'chronic PTSD' that is inconsistent with that of even the latest, but unreliable report of Dr Nagesh, that has never been a diagnosis of any of the various psychiatrists Mr Boots has presented to. Further, Dr Jaksic is not a specialist in psychiatric health conditions and has relied consistently on Dr Nagesh to provide the appropriate diagnosis and clinical treatment of Mr Boots' mental health conditions whilst being Mr Boots' treating general practitioner.
6. Dr Jaksic has also fallen into advocacy over objectivity in respect to Mr Boots.
7. The Tribunal gives weight to the Joint Expert Opinion and the opinions of Dr Nagesh as expressed in his various reports up to 3 May 2023, consistent with his opinion in the Joint Expert Opinion, and the evidence of Dr Davis at the hearing, because they are the best evidence of Mr Boots' diagnosis from an objective perspective with an explanation of the facts and conclusions underpinning the opinions.
8. The Commission contends that the Tribunal should set aside the Reviewable decision on the basis that it was wrongly made, and Mr Boots is not entitled to the benefit of that decision that determined he is entitled to compensation.
9. For the Tribunal to set aside the Reviewable Decision and substitute with a decision that is less favourable to Mr Boots, the Commission has the burden of persuasion against his existing entitlement.[17]
10. The Tribunal is reasonably satisfied that the correct diagnosis of Mr Boots' condition is 'adjustment disorder with elements of post-traumatic stress disorder' that resolved within 6 months of Mr Boots' Army service in 1992, because:

(a) The best evidence of Mr Boots' diagnosis was that obtained in the Joint Expert Opinion as accepted in the AAT Decision.

(b) Until 7 July 2023, Dr Nagesh maintained that the correct diagnosis was the one that he contributed to in the Joint Expert Opinion, namely that the Accepted Condition had resolved within 6 months of Mr Boots' Army service in 1992.

(c) Dr Nagesh provides no reasonable explanation for his change of position from as late as 3 May 2023 in opining that Mr Boots continues to suffer from 'adjustment disorder with elements of post-traumatic stress disorder'.

(d) Dr Jaksic provides no reasonable explanation for how he came to an opinion of his diagnosis of 'chronic PTSD' where that diagnosis is wholly inconsistent with and does not refer to the schizoaffective disorder that the Joint Expert Opinion and Dr Nagesh have diagnosed Mr Boots suffering.

(e) The evidence of Mrs Boots about the family history of schizoaffective disorder and its impact on the mental health of Mr Boots and his brother was persuasive and consistent with the opinions in the Joint Expert Opinion.

(f) Dr Davis was a compelling witness, particularly in his evidence as to the Joint Expert Opinion and his opinion that the most recent opinions of Dr Nagesh and Dr Jaksic were inconsistent with the initial diagnosis that the Accepted Condition had resolved, and he was unable to understand how that had changed.

(g) The Tribunal is reasonably satisfied, based on all the medical evidence before the Tribunal, particularly of the Joint Expert Opinion, the evidence of Dr Davis and the opinion of Dr Nagesh up to 3 May 2023, that Mr Boots does not currently suffer from the Accepted Condition.

1. The Tribunal sets aside the decision under review and substitutes with the decision that the Commission is not liable to pay Mr Boots permanent impairment compensation pursuant to ss 24 and 27 of the DRCA as his 'adjustment disorder with elements of post-traumatic stress disorder' has resolved.

Claim for permanent impairment, dated 16 June 2022 (T23)

Initial Determination, dated 30 August 2023 (T29)

Reviewable Decision, dated 15 March 2024 (T1.1)

Decision of Administrative Review Tribunal in 2014/5063 dated 3 February 2017 (T13)

Permanent Impairment Report of Dr Jaksic, dated 6 June 2023 (T26)

Letter from Dr Nagesh to Dr Jaksic, dated 3 May 2023 (T42) pp112-113

Joint Memorandum of Dr Nagesh, Dr Ewer and Dr Davis, dated 2 June 2016 (T39)

Applicant's statutory declaration, dated 28 November 2024 (T44)

Statutory Declaration of Mrs Anne Boots (Applicant's Mother), dated 28 November 2024 (T45)

Further Statutory Declaration of Mrs Anne Boots, dated 28 November 2024 (T46)

[2] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

[4] Boots and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 177.

[10] Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment - Edition 2.1

[15] Respondent's statement of facts, issues and contentions dated 30 January 2025.

[16] See Perich and Secretary, Department of Social Services [2018] AATA 963 at [44].

[17] See Comcare v Power [2015] FCA 1502 at [67]