The psychiatric condition
49 Insofar as concerns her psychiatric condition, Ms Hewett advances the following grounds by way of challenge to the AAT's conclusions about her "psychological injury and medical treatment expenses" (errors original):
17. The [AAT] failed to make a finding of fact, central to the resolution of the central question in the review, concerning the cessation of compensational benefits for the psychological injury, and, specifically, the denial of compensation for medical treatment expenses pursuant to section 16 of the SRC Act on and from either 9 December 2015 or 31 December 2015.
18. The [AAT] was required in the circumstances of the review to make findings of fact that could support its decision to deny the medical treatment expenses.
19. In the circumstances, the [AAT] accepted evidence of the existence of a psychological injury that was relevantly related to employment with Centrelink that was in its nature a "major depressive disorder" but did not make findings that could support the conclusion that its "progression ... is not now attributable to her previous employment".
20. The [AAT] failed to make findings of fact that identify the basis for the conclusion that the impairment did not result from the accepted injury or, as apparently expressed by the [AAT], how, and in what circumstances, the "progression" was not "attributable to her employment".
21. In coming to regard the conclusion that the "progression ... [of the disc degeneration] ... is not now attributable to her employment", the [AAT] failed to ask itself the correct question. The statutory test is whether the treatment expenses for psychiatric review, psychological counselling and psychotropic medication from either 9 December 2015 or 31 December 2015 were incurred in respect of injury.
22. It was not sufficient to conclude the questions posed in the review by merely finding that there was a "major depressive disorder" that went through a "progression", or continuation of the disorder since the persistence of a disorder of itself was no reason to deny compensational benefits. On the evidence of those psychiatrically qualified witnesses whose reports supported the accepted disorder as a "major depressive disorder" and the need for its treatment, the [AAT] had to determine whether that was the result of the employment injury or whether there was some fact or circumstance that ended the causal relationship between the injury and the cervical spine impairment. No facts were found that could support a conclusion that the causal relationship was ended.
23. The [AAT] failed to evaluate the evidence given by the [a]pplicant's witnesses, including the treating psychiatrist responsible for provision of treatment after 9 December 2015, the period during which the relevant claimed costs were incurred and the entitlement to compensation for which was in dispute. That evidence supported a finding of a continuing need for psychological treatment of the major depressive disorder that was a continuing, even if "progressive" employment injury. The evidence of treaters, who provided the treatment was central to the determination to be made by the [AAT] and the evidence had to be evaluated.
24. The [AAT] based its determination to refuse compensation of medical treatment on the ground that the "major depressive disorder" could "no longer be attributable to her compensable condition", (though the 'major depressive disorder was the compensable condition). The basis for the "determination" was not based on the evidence.
25. Further, the [AAT] acted on no evidence, in that the supposed opinion evidence accepted that was said to support the decision was not actually held by the person to whom it was attributed and who held and diametrically opposite to the one attributed to her. In those circumstances, it must be concluded on appeal that the [AAT] acted on no evidence at all and hence, an error of law.
26. In failing to make the findings of fact central to the determination of the review, evaluating the evidence and dealing with the submissions, the [AAT] failed in its duty to provide reasons for decision as required by section 43 of the [AAT Act].
50 As with the grounds advanced in respect of Ms Hewett's cervical spine injury and impairment, the grounds advanced in respect of Ms Hewett's psychiatric condition are, in truth, more in the nature of submissions than discrete allegations of error. Significant effort is required to prize from them the discrete bases upon which Ms Hewett attributes legal error to the AAT insofar as concerns its conclusions about her psychiatric condition (specifically, its conclusions that her present condition "…is not now attributable to her previous employment" (AAT Decision, [54]; above, [29]) and "…could no longer be attributed to her compensable condition" (AAT Decision, [56]; above, [29])).
51 There appear to be three such bases advanced. First, Ms Hewett charges the AAT with having reached those conclusions without any evidential basis. Second (and perhaps relatedly), Ms Hewett contends that the AAT misunderstood the test that it was to apply in assessing whether compensation should be paid in respect of her present psychiatric condition. Specifically, it is said that the AAT erred by directing its attention to whether Ms Hewett's current condition was attributable to her previous employment, whereas the correct statutory test required consideration as to whether or not it has arisen as a result of injury (as defined). Third, Ms Hewett contends that the AAT failed to discharge the duty conferred upon it by s 43(2B) of the AAT Act (namely, to identify within the reasons for its decision the findings that it made on material questions of fact and, in each case, the evidence upon which it relied in making those findings).
52 There is, perhaps, a fourth basis that was identified in Ms Hewett's written and oral submissions. In her written submissions, Ms Hewett contended as follows (references omitted):
42. The liability for the psychiatric injury does not depend upon the continuation of the liability for the neck injury. The psychiatric injury having been sustained may or may not continue unless recovery takes place or there is some causal interruption. The [AAT] made no findings nor pointed to evidence that supported any inference of recovery or causal displacement. The [AAT] neither dealt with the continuity of causation or its cessation nor with the treatments for the ongoing depressive condition for which evidence was given.
43. In failing to engage in those tasks, the [AAT] failed to deal with the causation and treatment submissions of the [a]pplicant concerning the causation, continuity and need for specific treatment, including those treatments identified in the [Fifth Reviewable Decision]. Those were submissions of substance which, if accepted, were capable of affecting the outcome of the case.
44. The failure to consider a submission worthy of serious consideration constitutes an error of law.
53 That submission was, albeit to a limited extent, elaborated upon orally. As I followed it, Ms Hewett's contention was as follows. Before the AAT, she submitted that, in order that it might be said that her present psychiatric disorder lacked a connection with her former employment (or with the mental injury that she suffered when employed), there needed to be evidence by reference to which the AAT could be satisfied that the "resulting effects of that disorder had lost [their] connection with the employment". The AAT did not address that submission in its reasons and, so the contention proceeds, that failure amounts to legal error that is ripe for correction by this court.
54 Again without intending offence, the language in which the AAT expressed its conclusions regarding Ms Hewett's psychiatric condition was less than clear. Its analysis begins with acceptance of the fact that Ms Hewett "…continues to suffer from a psychological condition…" but that conclusion is immediately qualified by a finding that "…this too could no longer be attributed to her compensable condition" (AAT Decision, [56]; above, [29]). That reference to Ms Hewett's "compensable condition" is, obviously enough, a reference to the psychiatric injury that arose in connection with the events of February 2004 (in respect of the treatment for which Comcare long ago accepted liability to pay compensation).
55 The AAT then proceeds to identify the evidence from which the qualification just stated is said to have been drawn. Reference is made to a Dr Power, who appears to have been Ms Hewett's treating psychologist, at least for a time. Dr Power is said to have indicated to another psychologist (namely one engaged by Comcare, whose identity I am unable to determine) that "…Ms Hewett had had a lot of treatment over a long period of time and that it was time to wean Ms Hewett from the treatment to become ready for discharge" and also that "…Ms Hewett was not utilising her sessions to learn skills of self-management but was using them to vent about her current life stressors".
56 It is not apparent how the AAT came to be aware of the information (or opinions) attributed to Dr Power. That information was not reproduced in the material provided in the appeal; or, if it was, I was not taken to it and have been unable to locate it independently. Before me, neither party made anything more than a passing reference to it in submissions. I proceed upon the assumption that the AAT correctly and fairly summarised what Dr Power is recorded as having said.
57 Understanding the link between the AAT's conclusion that Ms Hewett's present psychiatric condition is not attributable to her "compensable condition" (on the one hand) and the statements attributed to Dr Power (on the other) is not an easy exercise. The statements so attributed - that is, the statement about the extent of Ms Hewett's treatment and the statement as to how that treatment has (or has not) been utilised - do not, either individually or collectively, inform the conclusion that the AAT drew. The fact that Ms Hewett has enjoyed a significant volume of treatment is not a basis upon which to conclude that her present condition is not attributable to a preceding one for which liability was accepted. Nor is the fact that the treatment in question has been (or appears to have been) misdirected in the manner that Dr Power is said to have identified. Even assuming both observations to be true (as the AAT appears to have), neither leads to (or supports) the conclusion that Ms Hewett's current condition "could no longer be attributed to her compensable condition".
58 Comcare submits that that conclusion was premised upon the AAT's acceptance of "…the evidence of Dr Power…to the effect that the 2004 incident was not sufficient to cause the onset of 'moderate severity adjustment disorder with mixed anxiety and depressive symptoms'". The difficulty with that submission is that it is not apparent, either from the material that was reproduced before me or from the AAT Decision itself, that Dr Power ever expressed such an opinion. The passage just quoted hails from [52] of the AAT Decision, in which the AAT primarily recited a submission that Comcare advanced before it. What is now suggested to be an opinion that Dr Power held (and expressed to somebody at some point) seems, instead, to be a submission that Comcare urged the AAT to accept. It is anything but apparent from the AAT Decision - particularly at [56] and following - that the AAT did so.
59 It is simply not possible to know from the AAT Decision how it was that the AAT reasoned that Ms Hewett's present psychiatric condition "could no longer be attributed to her compensable condition". Even reading the AAT Decision as generously as it should be read, there was no finding that Ms Hewett's "compensable condition" had resolved, nor that Ms Hewett's contemporary condition pre-dated it. The AAT Decision does not identify a basis upon which it was (or might properly have been) concluded that the psychiatric affliction from which Ms Hewett presently suffers could be said to have arisen independently of her "compensable condition" (and, thereby, could be thought to lack the requisite connection with her former employment upon which Comcare's liability for relevant psychiatric, psychological and pharmaceutical treatments turned).
60 As is outlined above (at [28]), Associate Professor Mendelson was of the view that Ms Hewett's contemporary condition was (original emphasis):
…not and has not been work-related, albeit…it has predisposed [her] to react more intensely than would a person of 'normal mental fortitude' to environmental stressors, including events at work… [A]ny specific emotional reaction to an event such as the incident on 10 February 2004 would not have lasted for longer than several weeks at most, and…[Ms] Hewett's current emotional symptoms are due to the underlying disorder of Cyclothymia and are not in any way attributable to that incident that occurred in February 2004, more than 12½ years ago.
61 Earlier, Associate Professor Mendelson stated that he was "…puzzled as to the basis on which a 'psychiatric injury' could be attributed in January 2008 to a 'neck sprain' that had occurred in February 2004, almost four years earlier".
62 There was, then, an evidential basis upon which the AAT might have reasoned that Ms Hewett's present psychiatric condition was unrelated to her former employment. However, not only does the AAT Decision not disclose reasoning of that kind, the AAT seems to have rejected at least some of Associate Professor Mendelson's evidence. There is no finding in the AAT Decision, for example, that Ms Hewett suffers from Cyclothymia. Moreover, the AAT Decision accepts - contrary to Associate Professor Mendelson's conclusion - that the incident that occurred in February 2004 was sufficient to give rise to a "compensable condition" that lasted a lot longer than "several weeks" (and, indeed, doesn't appear even to have been diagnosed until some years after that incident transpired).
63 The findings that ground the AAT's conclusion that Ms Hewett's present psychiatric condition "could no longer be attributed to her compensable condition" are, instead, founded upon information sourced from Dr Power. As the analysis above ([54]-[57]) explains, that information simply did not afford the AAT an evidential foundation upon which its conclusion could fairly rest.
64 In addition to concluding that Ms Hewett's present psychiatric condition "could no longer be attributed to her compensable condition", the AAT also concluded that her "…claim for ongoing medical expenses under section 16 of the SRC Act in respect [of]…pharmaceuticals, psychiatrist, psychologist and travel costs were not reasonable ongoing treatments". That might be (although it is not clear that it was intended to be) understood as an alternative basis upon which the Reviewable Decisions (insofar as they pertained to Ms Hewett's present psychiatric condition) should be affirmed. Comcare's liability under s 16 of the SRC Act was a function of two things: first, of Ms Hewett's condition qualifying as an injury (as defined); and second, of the treatments in question being treatments that it was reasonable in the circumstances for Ms Hewett to obtain. Only if both criteria were satisfied did liability under s 16 of the SRC Act arise.
65 The AAT addressed the former, at least implicitly, by concluding that Ms Hewett's present psychiatric condition "could no longer be attributed to her compensable condition". It concluded, implicitly, that it does not qualify as an "injury" for the purposes of s 16 of the SRC Act. But even assuming that that conclusion was wrong, it does not automatically follow that Ms Hewett's claim for compensation under s 16 should succeed. It would succeed only insofar as the treatment in respect of which it was made qualifies as treatment that it is reasonable in the circumstances for Ms Hewett to obtain. It is apparent that the AAT considered that the treatment here in question was not treatment that, in the circumstances, it was reasonable for Ms Hewett to obtain.
66 The AAT's reason for arriving at that conclusion was that "…[t]here was no clear evidence that these treatments were benefiting [Ms Hewett's] long-term pain management" (AAT Decision, [57]). That explanation is apt to prompt immediate misgivings. The pharmaceutical, psychiatric and psychological treatments (and related travel expenses) in respect of which Ms Hewett sought compensation under s 16 were not treatments that she obtained (or sought to obtain) in relation to the management of pain (at least not in a physical sense). They were, obviously enough, directed toward the psychiatric condition from which it was agreed (and found) that she now suffers. Immediately following that observation, the AAT recorded that "[t]reatment for [Ms Hewett's] psychological condition is now required in respect of [her] underlying psychological condition, but not in respect of the incident in 2004 as evidenced by her treating psychologist and psychiatrist who both note most sessions now deal with her general life stresses" (AAT Decision, [57]). Although it couldn't be said so with great certainty, it would appear that the AAT expressed the first observation (about "long-term pain management") in relation to Ms Hewett's physical condition, whereas the second (about her "general life stresses") related to her psychiatric condition.
67 Regardless, neither circumstance was sufficient to inform whether or not the various treatments in respect of which Ms Hewett sought compensation under s 16 of the SRC Act were treatments that, in the circumstances, it was reasonable for her to obtain. The fact that contemporary treatment tends to have focused on Ms Hewett's "general life stresses" is not a circumstance that informs that calculation. It could well be that treatment focused upon Ms Hewett's "general life stresses" is amongst the kinds of treatment that her present psychiatric condition demands. There was no finding to the contrary, nor any reason apparent within the evidence to suppose to the contrary. There is no apparent basis upon which the AAT could logically progress from that observation (about the subject matter upon which Ms Hewett's recent treatment was said to have focused) to its conclusion that her present condition "could no longer be attributed to her compensable condition".
68 Similarly, the reasonableness of the treatments in respect of which Ms Hewett sought compensation under s 16 of the SRC Act did not turn upon whether or not they afforded Ms Hewett some long-term pain-management benefit. The effectiveness of a given treatment in respect of an injury will undoubtedly inform whether or not it is reasonable to be obtained: Bashar v Comcare (2002) 69 ALD 784, 785 [12] (Madgwick J). However, a treatment is not ineffective merely by reason of its failure to mitigate the effects of an injury over the long-term.
69 It follows from the above that I accept that the AAT's decision to affirm each of the Reviewable Decisions insofar as they pertained to Ms Hewett's psychiatric condition was, in each case, the product of legal error. The AAT's determination that Ms Hewett's present psychiatric condition "could no longer be attributed to her compensable condition" (and, implicitly, was therefore not an "injury" for the purposes of the SRC Act) was founded upon circumstances that, in truth, did not inform whether or not any such attributive connection between the two conditions existed. By reasoning in that way, the AAT must be understood to have misunderstood the statutory test that it was to apply. Alternatively, it drew a conclusion that the evidence that it had accepted was not capable of sustaining.
70 Similarly, insofar as the AAT decided that the pharmaceutical, psychiatric and psychological treatments in respect of which Ms Hewett sought compensation were not treatments that it was reasonable for her to obtain, that conclusion suffered from the same deficiency. The AAT determined the reasonableness of those treatments by reference to circumstances that did not inform whether or not they were reasonable. Again, that analysis betrays a misunderstanding, on the AAT's part, as to the statutory test that it was to apply (that is, a misunderstanding of the circumstances in which the SRC Act contemplates that Comcare will be liable to pay compensation in relation to treatments reasonably obtained in respect of an injury). Alternatively, it involved the drawing of a conclusion (namely, as to the reasonableness of the specific treatments) that the evidence was not capable of sustaining.
71 Having reached that conclusion, I do not consider it necessary to consider the appellant's other grounds (as I have distilled them - above, [50]-[53]).