Hutchinson v Comcare

THE DECISION 4 The sole issue before the Tribunal for its determination was the date on which Ms Hutchinson, who was at all material times employed by the respondent, Comcare, first sustained either of her compensable mental injuries. Liability had been accepted by Comcare pursuant to s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) to pay compensation to the applicant in respect of 'a major depressive disorder - single episode' and 'post-traumatic stress disorder'. It had become common ground that the former compensable injury should be described as 'major depressive disorder'. The Tribunal accepted that each of those mental injuries was a disease as defined in s 5B(1) of the SRC Act. The question for Tribunal, pursuant to s 7(4) of the SRC Act was the date on which, for the purposes of SRC Act, Ms Hutchinson 'shall be taken to have sustained [each] injury'. Pursuant to that subsection, it was to be the date on which (relevantly): (a) Ms Hutchinson first sought medical treatment for the disease; or (b) the disease first resulted in incapacity for work or impairment of Ms Hutchinson. 5 The decision of the Tribunal examined at length the evidence in relation to claims made by Ms Hutchinson concerning her conditions and the treatment of those claims by medical experts, predominately psychiatrists, but also two psychologists. 6 Having set out Ms Hutchinson's claims and a great deal of the medical evidence in relation to her claims over some 70 pages, the Tribunal reached the conclusion (at [43]) that she: … "first sought medical treatment for" a relevant mental ailment (being a "disease" as defined in s 5A(1) of the SRC Act), within the meaning of s 7(4)(a) of the SRC Act on 31 January 2011. 7 At [44]-[46] the Tribunal noted: 44. For the purposes of the application of para (b) of s 7(4) of the SRC Act, the following questions arise: • did either or both of the relevant diseases (namely, major depressive disorder and post-traumatic stress disorder) "result in the incapacity for work, or impairment of the [applicant]" before 31 January 2011? and, if so • on which date did either of those relevant diseases "first result in the incapacity for work, or impairment of the [applicant]"? 45. The applicant's case rested entirely on her submission that she suffered post-traumatic stress disorder on 5 March 2010 by reason of the Director [X], who was sitting next to her at a training workshop, leaning towards her and quietly saying to her "I'm going to fucking kill you" ("the perceived death threat incident"), and that she immediately suffered mental impairment as a result, and, in support of that submission, she primarily relied on the medical reports of Dr Dellar dated 31 January 2013 (T38) and 28 May 2013 (Exhibit R2) (set out in paragraphs 33 and 34 above). 46. Although there is a considerable number of expert psychiatric and psychological reports in evidence, unfortunately none of them directly addresses the question as to when the applicant first suffered a mental ailment and mental impairment as a result of the perceived death threat incident. Each of those reports, however, does contain an expression of opinion regarding the diagnosis or nature of the mental ailment suffered by the applicant at the time of the clinical examination of the applicant on which the relevant report was based. (emphasis added) 8 The Tribunal (at [48]-[50]) compared the available evidence as follows: 48. The Tribunal notes that all of the psychiatrists who examined the applicant in the period from March 2011 (when she was first referred for psychiatric assessment) to November 2012 - namely, Dr Spence, Dr Felman, Dr Spear and Dr Edwards-Smith - made a diagnosis of major depressive disorder in the applicant's case, and none of them made a diagnosis of post-traumatic stress disorder in her case. The latter diagnosis was first made by Dr Brendan Dellar, Specialist Clinical Psychologist. The Tribunal notes that, in the evidence before it, the first reference to the applicant's suffering from post-traumatic stress disorder is made in Dr Dellar's report of 31 January 2013 (T38) but the Tribunal is unable to determine when Dr Dellar first made that diagnosis in the period from February 2012 when he commenced treating the applicant. The Tribunal notes, furthermore, that Dr Lawrence Blumberg, Consultant Psychiatrist, also made a diagnosis of chronic post-traumatic stress disorder in the applicant's case upon his examination of her on 21 June 2013, as stated in his report of 25 June 2013 (T46). 49. Neither Dr Blumberg nor Dr Dellar, in their abovementioned reports, specifically addressed the timing of the applicant's developing or contracting post-traumatic stress disorder. Certain passages in Dr Dellar's report of 28 May 2013 (Exhibit R2) may, however, be indicative of the view that the applicant contracted or developed post-traumatic stress disorder immediately or shortly after the perceived death threat incident of 5 March 2010 - in particular, the following passages: "… I consider Posttraumatic Stress Disorder to be the original injury, and that the Major Depressive Disorder is secondary … … The injury was the death threat incident which directly led to anxious-arousal, avoidance and re-experiencing symptoms. The prolonged anxiety and lack of control in my opinion led to the secondary development of Major Depressive Disorder. … As mentioned above, the PTSD was the initial result of the death threat, and Major Depressive Disorder developed as the result of prolonged anxiety and ongoing deficits in perceived control. …" However, even if it can reasonably be inferred from the abovementioned passages that Dr Dellar is of the opinion that the applicant contracted or developed post-traumatic stress disorder immediately or shortly after the perceived death threat incident of 5 March 2010, that opinion is inconsistent with the opinions expressed by the four abovementioned psychiatrists (namely, Dr Spence, Dr Felman, Dr Spear and Dr Edwards-Smith) who examined the applicant in the period from March 2011 to November 2012 and who each took a detailed history from the applicant, including the perceived death threat incident of 5 March 2010 and its impact on her. Each of those psychiatrists made a diagnosis of major depressive disorder, and none of them made a diagnosis of post-traumatic stress disorder, in the applicant's case. 50. The Tribunal attaches great weight to the opinions of those four abovementioned psychiatrists and, having regard to that evidence, the Tribunal is not satisfied that the applicant was suffering from post-traumatic stress disorder, or any impairment resulting from post-traumatic stress disorder, before March 2011 or in the period from March 2011 to November 2012. The Tribunal is, however, satisfied, on the basis of Dr Dellar's report of 31 January 2013, that the applicant was suffering from post-traumatic stress disorder as at that date. (emphasis added) 9 On the basis of that reasoning, the Tribunal expressly concluded that it was not satisfied that Ms Hutchinson was incapacitated in the period from 5 March 2010 to 31 January 2011, as she contended. 10 The Tribunal further explained the reasons why that was so in [54]-[58] in these terms: 54. As regards "impairment" (as defined in s 4(1) of the SRC Act), the Tribunal notes the applicant's evidence that, on 5 March 2010 following the perceived death threat incident on that day, her "psychological integrity came to a crashing halt". The Tribunal also notes, in particular, the applicant's statement regarding her state of mind while on the overseas cruise on which she had embarked on 21 May 2010 and from which she was scheduled to return to Australia on 3 September 2010: "2.50 So consumed with fear and terror at the prospect of returning, not only to the workplace but even to Australia, the Applicant seriously contemplated suicide and to that end the Applicant left the cruise and arrived back in Victoria on 15 August 2010." (part of Exhibit A1 - set out in paragraph 14 above) There is, however, no contemporaneous medical evidence before the Tribunal regarding the applicant's mental state in the period from 5 March 2010 to 30 January 2011. 55. The question as to when "impairment" of the applicant as a result of her compensable "injury, being a disease", namely, major depressive disorder, first occurred is, in the Tribunal's opinion, primarily a medical question, which is to be determined by the Tribunal primarily on the basis of the medical evidence before it. In the absence of contemporaneous medical evidence before the Tribunal regarding the applicant's mental state in the period from 5 March 2010 to 30 January 2011, the Tribunal is not satisfied that the applicant had "impairment" (as defined in s 4(1) of the SRC Act) resulting from major depressive disorder in that period. 56. The Tribunal is, however, satisfied, on the basis of Dr Dunne's report of 23 April 2011 (T19 - set out in paragraph 23 above), that the applicant presented with symptoms of major depressive disorder on 31 January 2011 when she consulted Dr Dunne on that date and that the applicant had "impairment" resulting from major depressive disorder on and from that date. 57. Having regard to the abovementioned considerations the Tribunal is satisfied, and finds, that: • pursuant to s 7(4) of the SRC Act, for the purposes of that Act, the applicant is "taken to have sustained an injury, being a disease", namely, major depressive disorder, on 31 January 2011; • the applicant subsequently sustained a mental injury, being a "disease" (as defined in s 5B(1) of the SRC Act), namely, post-traumatic stress disorder. 58. Having regard to the abovementioned findings, it is unnecessary, for present purposes, for the Tribunal to determine the date (being a date after 31 January 2011) on which the applicant contracted or developed post-traumatic stress disorder. In any event, having regard to the whole of the evidence before it, the Tribunal is unable, on the basis of that evidence, to make findings, for the purpose of the application of s 7(4) of the SRC Act, as to the precise date on which: • the applicant first sought medical treatment for post-traumatic stress disorder; • the applicant's post-traumatic stress disorder first resulted in incapacity for work in her case; or • the applicant's post-traumatic stress disorder first resulted in impairment in her case. Suffice it to say that, in the Tribunal's opinion, the medical evidence before it does not, on balance, support the proposition that the applicant was suffering from post-traumatic stress disorder before March 2011 or in the period from March 2011 to November 2012. (emphasis added)

THE CURRENT APPLICATION 11 The matters particularly requiring consideration in this proceeding are: (a) the explanation for the delay; and (b) the merits of the proposed appeal. 12 In accordance with r 33.13(2)(c) of the Federal Court Rules 2011 (Cth), the current application is supported by an affidavit of Ms Hutchinson, although it is unclear when the affidavit was made. It was affirmed on 25 September 2014, but the sheets identifying annexures KH1 and KH2 indicate that it was affirmed on 16 October 2014. (In reality, the affidavit is almost exclusively submission).

Explanation for the Delay 13 The only evidence as to the reason for the delay in filing the application for an extension of time is [6.1] of the affidavit which reads: The Applicant made several unsuccessful attempts to "upload the documents required" for this application through the Federal Court eLodgment service on 19 September 2014. 14 With the decision being delivered on 22 August 2014, the 28 days for filing an appeal pursuant to s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) expired on 19 September 2014. That is the date on which Ms Hutchinson indicates she made several unsuccessful attempts to upload the 'documents required' through the Federal Court eLodgment service. There are difficulties with this explanation. First, the documents are unidentified. The documents ultimately relied upon, as indicated above, were dated after 19 September 2014, namely, the affidavit on 25 September 2014 and 16 October 2014, and the extension of time was dated 25 September 2014 and filed on 31 October 2014. 15 With regard to the dates of 25 September 2014 and 16 October 2014, which are the dates of the affidavit and annexures, there was no explanation in her affidavit as to why or whether those documents or other versions of those documents were actually in existence on 19 September 2014. The short summary statement at [6.1] of Ms Hutchinson's affidavit and [1.1] of her submissions filed on 26 November 2014, extracted above at [13], is inadequate to explain the delay. 16 It follows that there is no adequate explanation for the delay. While the absence of an explanation might not necessarily be crucial, it is to be expected that an explanation will normally be given: Comcare v A'Hearn (1993) 45 FCR 441 per Black CJ, Gray and Burchett JJ (at 444). 17 Significantly, on the delay point, Ms Hutchinson was alerted to the position that Comcare proposed to take as to the inadequacy of the explanation in the submissions for Comcare filed on 24 November 2014. Ms Hutchinson filed submissions on 26 November 2014 which provided no further material explaining the delay. 18 All that said, however, the delay is not great and if there were in the materials a discernible and realistic argument upon which an appeal might be based, the minimal delay would play a small part in the consideration. 19 I should make it clear that the primary reason for reaching my conclusion on this application is set out in the paragraphs which follow. 20 On the hearing of the application, Ms Hutchinson expanded upon the difficulties she had encountered (albeit without the benefit of affidavit evidence). I accept, for present purposes, her explanation and reiterate that the minor delay would not, taken alone, result in this application being refused or dismissed.

The Prospects of the Proposed Appeal 21 The submissions filed in support of the application run to some 12 pages and are almost entirely a review of the merits of the Tribunal decision and arguments as to why the Tribunal should have reached a decision other than it did. They do not point to an error of law underlying that outcome. The submissions very much take the form of an analysis of the evidence and why the evidence to which Ms Hutchinson points should be preferred rather than the evidence accepted by the Tribunal. 22 It is well established under s 44(1) of the AAT Act that a party to a proceeding before the Tribunal may appeal to this Court, on a question of law, from any decision of the Tribunal in that proceeding. However, it is also established on the authorities that the question of law is to be stated with precision, as a pure question of law: Birdseye v Australian Securities & Investments Commission (2003) 76 ALD 321 (at [17]-[18]) where Branson and Stone JJ observed: 17 A number of well-known authorities has considered the distinction between a question of law and a question of fact: see, for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; 43 ALD 193, 141 ALR 59. However, very limited consideration has been given to how a question of law ought properly to be stated in a notice of appeal from a decision of the tribunal having regard to the requirements imposed by O 53 r 3(2). Those requirements include that the questions of law raised by the appeal are to be stated separately from the grounds relied upon in support of the order sought on the appeal. 18 In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. It is not necessary in this case to give consideration to questions such as whether an allegation of denial of natural justice can give rise to a question of law so as to found an appeal under s 44(1) of the AAT Act (see Clements v Independent Indigenous Advisory Committee (2003) 37 AAR 309 esp per Gray ACJ and North J at [3]-[8] and Gyles J at [58]-[67]) and if it can, how the question of law should be stated. 23 Importantly, this is a statutory requirement. The fact that Ms Hutchinson is self-represented does not detract from the fact that the jurisdiction of the Court can only be engaged when a question of law is raised for determination: Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42 per Mansfield J (at [38]). 24 There are cases in which the Court has endeavoured to discern a question of law from the material advanced before it: see, for example, the approach in Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551 of Sundberg and Kenny JJ (at [51]) and in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 (per Mortimer J at [77]-[78]) where her Honour said: 77 Recognising minds differ on such matters, in my opinion a requirement that a notice of appeal be read fairly, rather than generously or benevolently, is a preferable approach. It provides more consistency with the role of the Court. It involves neither overzealous scrutiny, nor technicality, nor the imposition of a standard which in the circumstances it would be unreasonable to expect a non-legally trained person to meet. Fairness allows for the reading of a notice of appeal in its context: that is, reading all of the notice rather than simply that nominated as the "question of law". Depending on the circumstances, context may also require regard to be had to other evidence. For example, if a denial of procedural fairness is alleged, reading the words of the notice in isolation from any admissible evidence about the process adopted by a tribunal may not be a fair reading of the notice. On the other hand, a fair reading does not involve the creation by the Court of a contention which is not present in the terms of a notice of appeal, read in its context. Nor does it involve the redrafting of a notice. Where the Court concludes the party has identified a question of law arising from the tribunal decision, but that question is not reflected in the terms of the notice fairly read, then consideration may need to be given to whether leave should be granted to the party to file an amended notice of appeal. 78 In the present appeal, the applicant has identified, in its questions of law as stated, and by reference at least in part to the Tribunal's reinstatement decision, that "procedural fairness was ignored". In one sense there is little difficulty in rephrasing this statement as a question: "In making its decision to refuse to reinstate the review application under s 42A of the AAT Act, did the Tribunal deny the applicant procedural fairness?" In my opinion, to rephrase the question in that way is within the concept of reading the notice of appeal fairly. That is because the applicant has, as the respondent conceded, identified a failure by the Tribunal which is capable of establishing an error of law - namely, denial of procedural fairness in the making of the reinstatement decision. 25 The difficulty in taking a liberal approach to the draft notice of appeal is that one searches in vain to identify any error of law. The 'grounds of appeal' (a) to (e), extracted above at [3], themselves do no more than identify generic responsibilities of the Tribunal in every case. They do not point to any specific error of law. The fact that they are framed as questions can be put to one side for present purposes. The actual 'questions of law' themselves (in this case being statements rather than questions and putting that to one side), again, are simply general in their nature. The first 'question of law' merely identifies the ultimate task for the Tribunal, namely, to correctly construe the relevant section of the SRC Act. The second 'question of law' merely identifies the consequence of failing to correctly construe the section. Nowhere in any of the material filed or the draft notice of appeal is there pinpointed any specific error. This is not just a nit-picking technicality. The generalised nature of the document points to the underlying problem, which is also reflected in the lengthy submissions. The underlying problem is that there is no error of law identified. Rather, Ms Hutchinson is dissatisfied with the conclusion reached by the Tribunal. 26 I accept the following submissions of Comcare on this point: 21 The Tribunal's reasons for decision demonstrate that it did identify the correct issues and ask itself the correct questions: a. at paragraph [37] the Tribunal extracted relevant provisions from the SRC Act, including s 7(4), and the definitions of "impairment" and "incapacity"; b. at [38] to [40] the Tribunal identified the sole issue for its consideration as the date upon which Ms Hutchinson sustained her compensable mental ailments (major depressive disorder and post traumatic stress disorder); c. at [41] to [43] the Tribunal addressed s 7(4)(a) of the SRC Act, and made a finding of fact that Ms Hutchinson first obtained medical treatment for a mental ailment on 31 January 2011; d. at [44] and [51] the Tribunal identified, correctly, the questions arising from s 7(4)(b) of the SRC Act; e. at [52] the Tribunal addressed the question of when Ms Hutchinson was first incapacitated for work as a result of her major depressive disorder. The Tribunal had regard to: 1. the date on the first medical certificate, certifying Ms Hutchinson unfit for work as a result of "depression and anxiety"; and 2. the evidence that Ms Hutchinson continued to work, including performing higher duties for three weeks, between 5 March 2010 (and 16 April 2010 when she proceeded on a period of planned leave[)] f. at [53] the Tribunal made a finding of fact that Ms Hutchinson had not been incapacitated for work (within the meaning of s 4(9) of the SRC Act) between 5 March 2010 and 31 January 2011. g. at [54] to [56] the Tribunal addressed the impairment aspect of s 7(4)(b) and found that Mr (sic) Hutchinson was suffering an impairment (as defined by the SRC Act) resulting from major depressive disorder on 31 January 2011 when she consulted Dr Dunne, general practitioner; h. at [57] the Tribunal found pursuant to s 7(4) Ms Hutchinson sustain an injury, being major depressive disorder, on 31 January 2011, and subsequently sustained posttraumatic stress disorder. 22. In relation to [54] to [56] of the Tribunal's reasons for decision, Ms Hutchinson has criticised the Tribunal's reliance upon the absence of contemporaneous evidence, and questioned why the Tribunal did not accept her evidence regarding her mental state (see paragraph 3.34 of her "affidavit"). 23. The SRC Act is silent as to the matters that the Tribunal can take into account in determining when an impairment resulted from a compensable injury being a disease. In those circumstances, it was open to the Tribunal to have regard to any matter it considered appropriate: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others (1985-86) 162 CLR 24 at 39-40. 24. The Tribunal had regard to: a. the absence of contemporaneous medical evidence; and b. Ms Hutchinson's evidence regarding her state of mental health in the period after 5 March 2010 (see [54] which includes an extract from Ms Hutchinson's Statement of Facts, Issues and Contentions filed on 27 June 2014). 27 The sole question that was before the Tribunal, as identified in its reasons (at [39]), was the date on which Ms Hutchinson first sustained either of her compensable injuries. This question is classically a question of fact. The Tribunal gave close attention to all the evidence on the topic and the conclusion it reached was entirely open to it. On the material before it, its approach in accepting the views of the several psychiatrists who had taken detailed histories was an entirely conventional fact finding process. No question of law has been identified, even if (which seems most improbable), the Tribunal reached the wrong factual conclusion. A finding by the Tribunal on a finding of fact cannot be reviewed on appeal unless the finding is vitiated by error of law: Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J (at 77-78). 28 As is often the case in these types of applications, the submissions which Ms Hutchinson advances betray her concern, not with any question of law or process, but rather, with the conclusion reached by the Tribunal. This is a merits challenge. The Court has no jurisdiction in an appeal under s 44(1) of the AAT Act to review the merits of the Tribunal's decision: see the discussion in Rana v Repatriation Commission [2010] FCA 281 where Lander J said (at [45]): The grounds of appeal, although stated as questions of law when identified, are not in fact questions of law at all. What the applicant has sought on this appeal is a review of the merits of the decision which, of course, is not open to this Court: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [39] per Brennan J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 649-650. 29 At the oral hearing of this application, Ms Hutchinson advanced an argument not reflected in her draft notice of appeal, although it was arguably adverted to in her written submissions. She explained that she had been persuaded by an officer of the Tribunal not to call various medical witnesses and she decided not to do so. She explained that had she known the outcome of the application, she would have run her case differently and would have called those witnesses. She also suggested that the Tribunal itself should have called the witnesses when Comcare failed to do so. (There was, however, no suggestion that anyone on the part of the Tribunal prevented her from calling any witnesses and there was no suggestion or evidence that she sought and was refused an adjournment of the application due to the absence of any material medical witnesses). 30 The first of these points (as to how Ms Hutchinson chose to run her 'case') cannot be sustained. It was entirely for her to decide how to run her appeal before the Tribunal. It is not open to her to try to rerun her case in any other way now she is dissatisfied with the outcome in the Tribunal. There is no evidence that the medical witnesses were only in Comcare's 'camp', no evidence that they would not have responded to her request for them to attend and no reason to conclude that the Tribunal should have either adjourned the hearing or decided that the uncalled witnesses would not have assisted Comcare's case. As the decision reveals, the Tribunal had a very considerable body of written material to consider in relation to the sole issue which was before it. The Tribunal was able to confidently reach its decision on the strength of that material. 31 Ms Hutchinson, formerly herself an experienced Comcare claims services officer, advanced her arguments most eloquently on the inadequacy of the approach of the treating doctors and the inadequacy of the questions that Comcare asked of such doctors. But these issues go to the factual question of the relevant injury date. Even if her arguments are correct, they do not reveal an error of law on the part of the Tribunal. Her submissions do not disclose that in reaching its conclusion on the relevant injury date, the Tribunal asked itself the wrong question for the purposes of s 7(4) of the SRC Act or otherwise. This is not of course to say that the alleged conduct of which she complains in March 2010 should be countenanced or left unaddressed by an employer, but that is an entirely different issue.

CONCLUSION 32 The application must be dismissed with costs. 33 The following orders are made:

1. The application for an extension of time for leave to appeal from a decision of the Administrative Appeals Tribunal dated 22 August 2014 is dismissed.
2. The applicant to pay the costs of the respondent, to be taxed if not agreed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.