Robson v Military Rehabilitation and Compensation Commission

Decisions of the High Court 7 The use of the concept of whole person impairment in the Guide to assess the degree of impairment arising from a particular injury has caused confusion. The High Court has emphasised that the Guide must be used in a way which conforms to the statutory requirements arising from the SRC Act itself. In Canute v Comcare (2006) 226 CLR 535 ("Canute"), the Court said (at [37]): …The Act only adopts the "whole person impairment" approach with respect to permanent impairments resulting from each "injury". That "whole person" approach cannot properly be used to deny the applicability of s 24 to something which corresponds to the legislative definition of an "injury". The statutory criterion of an "injury" is antecedent to the concept of "whole person" impairment, not the other way around. 8 The result of this approach is that compensation must be assessed for individual injuries. Although, under the Guide, the consequences of each injury must be determined by reference to the notion of whole person impairment and be stated as a percentage, that percentage determination only relates to the permanent impairment arising from that injury, which is to be assessed individually, regardless of the position with respect to other injuries or the compensation which may be payable in respect of other injuries. 9 In Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28 ("Fellowes"), the majority judgment reinforced that approach. The majority judgment also drew attention to the need to assess compensation for each injury by reference to the effect of the injury on the functional capacities of a normal healthy person, rather than by reference to the effect on the pre-existing capacities of the claimant. 10 The majority judgment said at [23]-[28]: 23 The respondent submitted that there were two reasons to conclude that the Guide required determination of the degree of impairment resulting from an injury by reference to the pre-existing capacities of the particular applicant for compensation. First, the respondent pointed to the repeated references in the Guide to "percentage whole person impairment". Secondly, the respondent pointed to the statement made in the introductory section of the Guide which is set out earlier in these reasons, that "[w]here two or more injuries give rise to the same impairment a single rating only should be given". 24 The references in the Guide to "whole person impairment" identify the "methods by which the degree of permanent impairment [resulting from an injury is] expressed as a percentage" (s 28(1)(c)). The percentages stated in the Guide describe "the extent of each impairment as a percentage value of the functional capacity of a normal healthy person". The references to "whole person impairment" that are found in the Guide do not direct attention to the effect of an injury or disease on a particular individual. On the contrary, the effect to be assessed is by reference to the functional capacities of a normal healthy person. 25 The statement in the Guide, that "[w]here two or more injuries give rise to the same impairment a single rating only should be given", must be understood as directing attention to an impairment as that term is defined in the SRC Act. That is, the reference to the "same impairment" must be understood in terms of the particular identified effect on particular bodily parts, systems or functions. Contrary to the respondent's submission, this statement in the Guide is not to be understood as requiring a single rating to be given whenever each of two injuries is assessed as yielding the same degree of impairment of two separate parts of the body. 26 The text of the Guide is therefore to be construed as providing that the whole person impairment to which it directs attention requires comparison with the "functional [capacities] of a normal healthy person" rather than the capacities of the particular applicant as they existed immediately before the injury in question. The reference to two injuries causing the "same impairment" requires attention to the particular identified effect on bodily parts, systems or functions that is said to have resulted from the two injuries. It is, therefore, not necessary to consider, in this case, the application of the principle, stated in Canute, that if there were some conflict between what is required by the SRC Act and what is provided by the Guide, it is the Act that must be given priority. 27 It is, nonetheless, important to make the further point that, on its proper construction, s 24(5) of the SRC Act directs attention to the degree of impairment that results from the injury resulting in the impairment identified in s 24(1). The two sub-sections of s 24 are not to be read as requiring or permitting a different identification of "impairment" in their respective applications. In the application of both sub-sections the focus must fall upon "the loss, the loss of the use, or the damage or malfunction" (s 4(1), "impairment") of a part of the body or a bodily system or function or part of a bodily system or function. And in the present case there were separate losses of use of, or damage to, two parts of the body. 28 In this last connection, the respondent submitted that, despite there having been separate injuries to each knee, there was in fact only a single effect on (a loss of use of) a bodily function (the function of using the lower limbs). It may be doubted that the function of using the lower limbs is properly described as a bodily function. But even if the words could be understood as extending thus far, the respondent's argument, on examination, is no more than a restatement of the argument that the degree of impairment to be determined under s 24(5) is the degree of impairment as a whole person of the particular applicant for compensation. For the reasons already given, that construction should be rejected. (citations omitted) 11 The question of law in the present case (which is set out later) raises the issue of whether the approach taken by the AAT to assessment of impairment resulting from the applicant's injuries gave proper effect to the directions of the High Court about the operation of the SRC Act and the need to make appropriately individual assessments of compensation for separate injuries.

The applicant's injuries 12 The summary which follows is taken from the reasons of the AAT which are under examination in the present appeal. It was not suggested that there is any relevant factual error in those findings. 13 The applicant was born in 1965. He enlisted in the Australian Army in February 1987 and was medically discharged in September 2006. He served in Rwanda with the UN Peacekeeping Force from 21 August 1994 to 20 February 1995. He suffers from post-traumatic stress disorder ("PTSD") arising from that service. 14 On 10 February 2004, the applicant was severely injured in a parachute accident. He suffered fractures to both ankles, his pelvis and coccyx and a duodenal haematoma. The applicant also suffered a mental injury as a result of that accident. Before the AAT the applicant contended that the accident exacerbated his pre-existing PTSD from Rwanda and that the accident also caused a major depressive disorder ("MDD"). 15 Those contentions were accepted by the AAT. The AAT was satisfied, on the basis of the medical evidence before it, that the applicant suffered from both PTSD and MDD. It was satisfied the applicant suffered PTSD as a result of his service in Rwanda. It was satisfied that the MDD arose from the physical injuries suffered by the applicant in the parachute accident. It was also satisfied that the applicant's PTSD was significantly more severe after the parachute accident than it was prior to the accident and that the applicant's PTSD arising from his service in Rwanda was aggravated by the psychological aftermath of the parachute accident. 16 There were, therefore, three injuries which required the attention of the AAT: 1. PTSD arising from service in Rwanda. 2. Aggravation of PTSD as a result of the parachute accident. 3. MDD arising from the parachute accident.

The approach taken by the AAT 17 In decisions made by earlier decision-makers, apart from compensation for physical injuries, liability to pay the applicant compensation for permanent impairment had been accepted in relation to PTSD arising from service in Rwanda, but ultimately denied for the other two claimed injuries. Compensation for PTSD arising from service in Rwanda was finally assessed on the basis that it resulted in 50% whole person impairment. The AAT, however, accepted that the applicant had suffered three psychological injuries as he claimed, and that he was entitled to have compensation assessed on that basis. There was no challenge to that finding on the present appeal. 18 Notwithstanding that the applicant had suffered three injuries, the AAT felt unable to separately quantify compensation for aggravation of PTSD or for MDD. The AAT assessed the applicant's level of impairment overall, taking all those injuries into account, as 50% whole person impairment. The effect of that assessment was that no further compensation was payable to the applicant. 19 The essence of the AAT's reasoning is stated in the following paragraphs: 60. In the Tribunal's view, it is not possible in the circumstances of this case to draw a distinction in terms of impairment between Mr Robson's PTSD and MDD which affect the same body part - Mr Robson's brain. The facts are distinguishable from those in Fellowes where the Applicant suffered separate injuries to different knees. In this instance, there is only one body part affected, and while Dr Snowdon and Dr Dinnen agreed that there are some features that are referrable only to either to [sic] PTSD or MDD, equally there are other features common to both which respond to the same medication. Dr Snowdon and Dr Dinnen agreed that the conditions interact with one another and are intertwined. Dr Snowdon said that in cases such as this where the conditions are severe, the degree of overlap is greater. 61. Not only, in the Tribunal's view, is it not feasible to draw a distinction between the impairment caused by the PTSD and MDD, equally it is not feasible to draw a distinction between the Rwanda caused PTSD and the aggravation of that PTSD caused by the parachuting accident. … 20 The AAT also said: 65. The third issue raised by Mr Colborne is the degree of permanent impairment attributable to Mr Robson's MDD. As the Tribunal has explained above, in its view the facts of this case are distinguishable from those in Fellowes where the Applicant suffered separate injuries to different knees. In Mr Robson's case, while he has suffered two separate injuries, reflected in the PTSD and MDD from which he now suffers, both injuries were to the same body part - the brain. Moreover, the features of the two conditions are so inextricably intertwined as to make it practically impossible to make any realistic separate assessment. In his report dated 28 September 2012, Dr Dinnen said: "These disorders are inextricably linked. Clinically they must be seen as part and parcel of the same overall condition." He said the overall condition warrants an impairment rating of 50%, apportioning half of this to PTSD and half to MDD. Dr Snowdon said at the hearing that the only valid way of assessing Mr Robson's impairments is "globally - in terms of the combined effect of both conditions". He agreed that the two conditions make an equal contribution to the overall assessment.

The question of law 21 The question of law raised by the appeal was stated to be: Did the Tribunal address the correct question in determining the amount of compensation payable, under ss 24 and 27 of the SRC Act, for MDD and the aggravation of PTSD, arising out of the parachute accident?

Discussion 22 It will be apparent from the extracts of the AAT decision set out above that the AAT declined to separately assess compensation for either the aggravation of the applicant's PTSD (which had earlier manifested as a result of his service in Rwanda) or his MDD. That is to say, the AAT made no separate assessment of the psychological consequences arising from the parachute accident, although it accepted that those consequences represented separate injuries to the applicant. The AAT appeared to take that approach because it felt that the medical evidence provided it with only a final overall assessment of the applicant's psychological state. 23 The applicant was earlier assessed as having a 50% whole person impairment as a result of his Rwanda service alone. The effect of the AAT's decision was either that the earlier assessment was incorrect (although it did not say so) or that no additional compensation was payable for either of the two further psychological injuries arising from the parachute accident. It appears to be the second possibility which explains the approach taken by the AAT. The AAT was evidently persuaded to take this approach in part, at least, because all the psychological injuries affected the applicant's brain. 24 In our respectful view, the approach taken by the AAT was contrary to the directions given by the High Court in Canute and Fellowes.

Major depressive disorder 25 It is convenient to first examine the AAT's disinclination to give separate attention to the injury to the applicant represented by the MDD following his parachute accident. This is a recognised condition which followed physical injuries sustained some years after the Rwanda service. It is a separate injury in both its origins and in its clinical manifestations, even though there are some features of the condition which are shared with PTSD. 26 In oral evidence before the AAT, both Dr Dinnen and Dr Snowdon agreed that PTSD and MDD were clinically distinct conditions. They were each asked to state their assessment of Mr Robson's psychological health by reference to one, and then the other, condition independently of the other and were able to do so. 27 Dr Dinnen's evidence included the following: In this case I think it's your opinion that the causes of the PTSD and the major depressive disorder are different?---Yes. … In this case there's no doubt that PTSD is the diagnosis clear and simple on its own and that major depressive disorder is also a very clear diagnosis on its own and the two are interacting. … So I would say that clinically, as apart from what you would get from a rating scale, his PTSD in my view was twice as bad after the parachute jump as it was before. … … you would have to say the PTSD would cause marked disturbances in thinking; reactions to stressors of daily living which cause modification of living patterns; and that, as I've said, to try and evaluate activities of daily living when there's obvious ongoing problems of hospitalisations, frequent hospitalisations, attempts at suicide, aggressive behaviour and so on - if we were to apply that to the PTSD alone then that would take it up to 50 per cent because you've got severe disturbance. … … assuming that you had major depressive disorder there on its own, how would you rate it under the tables?---Well, that's a bit easier … you get to the level of impairment which is going to be either 40 or 50 - I've said even 60 could be considered. … I advised in that second report that I thought 50 per cent was the more appropriate level. … Do I understand you would be attributing 50 per cent to the depressive disorder and 50 per cent to the PTSD?---If they are not to be combined … … … The confusion in my mind is as to whether or not I am asked to combine the effects of these conditions and treat each one as a separate condition, or to give a global assessment and then divide that according to the contribution of each condition. … So what I did in the first report was regard each one as a separate condition and try to rate it according to that. What I've done in the second report is give a global assessment and allocated half to each one of those conditions. … … the PTSD and the depressive illness are interacting with each other. Okay. So the PTSD and the depressive illness are interacting with each other?---Yes. 28 Dr Snowdon's evidence included the following: Now, what I would like you to do is to assess his PTSD without having any regard to his major depressive disorder?---Okay. … … I would rate him at 50 per cent … … … Can I ask you to do the same thing with major depressive disorder?---Yes, absolutely. … So my opinion there is that both rate equally. … So from a clinical point of view, are you able to - once again, I suppose we've asked this question before - separate those two out?---Yes, yes. I think at a clinical level you can. I think at a clinical level you can … So clinically, yes, you can. 29 The extracts from the evidence of Dr Dinnen and Dr Snowdon quoted above are selective. It is not our purpose to attempt an evaluation of the medical evidence. Rather, it is to show that the medical experts felt it possible to differentiate amongst the psychological injuries not only in terms of their causes but also their consequences. 30 The result of the AAT's approach is that the applicant's circumstances (so far as his MDD was concerned) were assessed by reference to his overall psychological state, which necessarily included the part played by his prior impairment. That is to say, the effect of the MDD was assessed by reference to the applicant's pre-existing capacities and not independently of them. The impairment to the applicant arising from his MDD was not separately assessed "by reference to the functional capacities of a normal healthy person" (see Fellowes at [24]). In our respectful view, subject to the next issue to be discussed, that approach was erroneous and contrary to the requirements of the SRC Act. 31 The respondent attempted to defend the approach taken by the AAT by referring to an instruction in the Guide in the following terms: 6. Combined Impairments … Where two or more injuries give rise to the same impairment a single rating only should be given. 32 That is the same instruction with which the High Court dealt in Fellowes. The first difficulty with the argument is that the AAT made no reference to this instruction and did not implement it. Rather than concluding that the applicant's MDD gave rise to the same impairment as the PTSD, the AAT declined to assess that separate condition at all upon the basis that the applicant's overall condition reflected whole person impairment of 50%. The AAT then concluded that, as liability to that level had already been accepted, no further compensation was payable. 33 The second difficulty with the respondent's argument is that PTSD and MDD are separate clinical conditions. Although they may overlap, they are not co-extensive clinically. The respondent appeared to rely on the fact that each met the same description in the Guide for an assessment of whole person impairment at 50% but any approach of this kind overlooks the fact that the test of impairment to be satisfied is that arising under s 24(5) of the SRC Act, which is given content by the definition in s 4 of SRC Act, set out earlier. In Fellowes, the High Court emphasised (at [25]-[26]) that, when the instruction about combined impairments set out above is being considered, attention must be given to the "particular identified effect" which has resulted from each of two or more injuries. The medical evidence before the AAT was that the effect of one injury (PTSD) could not be fully equated with the effect of the other (MDD). 34 The respondent attempted to meet this difficulty by arguing that each impairment (PTSD and MDD) affected the same body part (the brain) or the same bodily system or function (the psyche). The respondent argued that Fellowes precluded separate assessment of two impairments to the same body part. We do not agree. That question was not addressed in Fellowes. The fact that, in Fellowes, two different knees were involved emphasised the need for separate assessment of the consequences of each injury, even though overall functioning was not made any worse by the second injury. The High Court did not say it was not possible to obtain compensation for two injuries to the same body part. The High Court said that where the same impairment was alleged, the matter had to be judged by reference to the "particular identified effect" of each injury. 35 In our view, the attempts by the respondent to defend the approach taken by the AAT (on grounds substantially different from the AAT's own reasoning) should not be accepted. The AAT should have made a separate assessment of the impairment arising from the applicant's MDD. If it was suggested that such an examination would reveal the same impairment as the PTSD, the suggestion would need examination in the manner directed by Fellowes.

Aggravation of post-traumatic stress disorder 36 Assessment of the aggravation of the PTSD arising from service in Rwanda by the psychological aftermath of the parachute accident must be approached with the same principles in mind. The AAT has accepted that aggravation of the applicant's PTSD represents a separate injury. In principle, therefore, compensation must be assessed on that basis. 37 Dr Dinnen's first report made separate assessments for each of the three injuries. There does not appear, therefore, to be any evident reason why that cannot be done. If it is claimed that aggravation of the PTSD is the same impairment as the PTSD pre-aggravation (which seems logically impossible) or that it is the same impairment as the MDD, the assessment of that claim must be carried out in accordance with the direction in Fellowes. In our respectful view, it is insufficient to say only that both affected the applicant's brain.

Conclusion 38 The AAT misconstrued the SRC Act. That was an error of law. The matter should be remitted to the AAT for hearing and determination according to law. The applicant should have his costs of the present proceedings. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Cowdroy, Buchanan and Katzmann.