THE MENTAL HEALTH CONDITION QUESTION
49 Ms Spaleta submits that the Serry Report confirmed that her mental health impairment is (and, during the Qualification Period, was) severe, fully diagnosed, fully treated, and fully stabilised, and that it had persisted for more than two years after initially being diagnosed. On those bases, the report was said to stand as proof that her condition is and was permanent. Particularly was that said to be so in light of the Certificate of Assessment of Degree of Impairment Arising from Stabilised Injury that was attached to the report (hereafter, the "Certificate"). Ms Spaleta submits that, on the totality of the evidence - and, more particularly, in light of the Serry Report and the Certificate - it was not open, or not reasonably open, to the AAT to find otherwise than that her condition was fully stabilised and fully treated.
50 Ms Spaleta submits that the AAT "ignored" the Certificate, as evidenced in part by the fact that the issuing of the Certificate necessitated a threshold level of injury of 15% (therefore, it is implied, her level of injury must have been at least 15%). The respondent replies that the Second AAT Decision did not "ignore" the Certificate, as the AAT explicitly confirmed that the Serry Report - which attached the Certificate - was "in evidence" and the information in the Certificate was replicated in the Serry Report itself. The respondent contends that the AAT was correct not to consider a percentage of impairment that had been calculated under the Wrongs Act 1958 (Vic) (hereafter, the "Wrongs Act") (as opposed to the SS Act). Further, the respondent says that the AAT was not under any obligation to isolate every issue of fact (in this case, being what meaning if any should be drawn from the existence of the Certificate) and record a specific finding in respect of each: Federal Commissioner of Taxation v Cainero (1988) 15 ALD 368, 370 (Foster J).
51 I agree. It was not necessary for the Second AAT Decision specifically to note the existence of the Certificate in circumstances where the substance of it was located within the Serry Report, and the conclusion that Ms Spaleta's condition was "stabilised" was reached under an entirely different legislative regime. Furthermore, the AAT was not obliged to adopt the conclusion reached by Dr Serry.
52 Ms Spaleta further contends that it was not open to the AAT to conclude that the 2016 Plotkin Report and the 2018 Plotkin Report "do not support [Ms Spaleta's] contention that she satisfies the s 94 [of the SS Act] requirements", in circumstances where:
(1) the AAT had found that the 2018 Plotkin Report and the Serry Report reached the same conclusion (that Ms Spaleta suffered from chronic major depression and panic disorder); and
(2) the 2018 Plotkin Report had stated that her conditions "[had] stabilised and maintenance based counselling support [was] recommended".
53 With respect, the respondent correctly identifies that Ms Spaleta's submission is misconstrued because:
(1) Dr Serry and Dr Plotkin only reached the same conclusion as to diagnosis - not whether her condition was fully treated and stabilised;
(2) the 2016 Plotkin Report did, in fact, contain recommendations for further therapeutic support; and
(3) it was therefore open to the AAT to infer from Dr Plotkin's reports that Ms Spaleta's condition was not fully treated and stabilised.
54 Ms Spaleta also submits that it was not reasonably open to the AAT to find that there was no corroborating evidence (or sufficiently corroborating evidence) of the impairment produced that satisfies the definition of "[the] descriptors", given the existence of the Certificate and what was said in McDonald, 360 (Woodward J, with whom Northrop J agreed - above, [43]).
55 Without context, the AAT's use of the word "descriptors" is apt to confuse; but, on careful analysis, it is clear that the Second AAT Report is there referring to a table in the Impairment Tables - Table 15: "Functions of Consciousness", which contains the two column headings "[p]oints" and "[d]escriptors". While I accept Woodward's J conception of the true test of permanence, I agree with the respondent that the Second AAT Decision proceeded upon an assessment of the functional impact from loss of or altered state of consciousness - whereas the Certificate dealt with impairment resulting from the more generalised psychiatric injury and symptoms. It cannot be said that the existence of the Certificate precluded the AAT from a finding that there was no corroborating (or sufficiently corroborating) evidence of functional impact from loss of or altered states of consciousness.
56 In her oral submissions, Ms Spaleta asserted that the Second AAT Decision contained a number of findings that were either not open, or not reasonably open, to be made. Ms Spaleta went to great lengths to document each alleged error, and there was some degree of overlap and repetition from her written submissions. It is sufficient, however, to refer to each of Ms Spaleta's primary allegations made orally at the hearing, some of which require a degree of context to properly comprehend.
57 Pursuant to Ms Spaleta's claim for DSP, the respondent had required her to be assessed on various occasions by a rehabilitation counsellor. In 2016, that assessment produced a report (hereafter, the "Job Capacity Assessment Report"). Ms Spaleta alleged that the Job Capacity Assessment Report had:
(1) failed to acknowledge or address the Certificate;
(2) failed to recognise that Dr Serry's opinion as related in the Serry Report was that her psychiatric injury was stabilised; and
(3) incorrectly remarked that the Serry Report indicated that reasonable treatment may increase Ms Spaleta's functioning.
58 The respondent, however, pointed out that the AAT relied on the Job Capacity Assessment Report only for completeness in an assessment of whether Ms Spaleta had a "continuing inability to work". Even were that not the case, it was said that the AAT was entitled to prefer the opinions within the Job Capacity Assessment Report over other experts, and it was not an error of law for the AAT to adopt such a view (regardless as to whether the Job Capacity Assessment Report did or did not contain the alleged deficiencies identified by Ms Spaleta). I agree. The AAT was entitled to consider the Job Capacity Assessment Report and favour its conclusions, whether or not it addressed the Certificate or properly recognised Dr Serry's opinion or made incorrect remarks. It is the AAT's reasoning and conclusion that is here in focus, not the reasoning and conclusion of the Job Capacity Assessment Report.
59 The Serry Report considered, amongst other things, the extent to which further care was necessary for Ms Spaleta. Dr Serry's opinion was that Ms Spaleta "should be under the care of a treating psychiatrist for the foreseeable future" but observed that the approximate cost of an hourly session was "of the order of $300.00 per hour". Ms Spaleta argued that for someone in her financial circumstances this did not amount to a "reasonable cost" within the meaning of s 6(7)(b) of the Impairment Tables (or, by extension, amount to a "reasonable treatment" within the meaning of s 6(7) more generally), and that the Second AAT Decision failed to consider this point despite her (by way of examination-in-chief from her husband) having made submissions on it. To this, counsel for the respondent replied that this was never a submission that had been put to the AAT, and consequentially was not addressed in the Second AAT Decision.
60 Having considered the transcript of the AAT Hearing, I accept that submission. During the course of that hearing, Ms Spaleta referred to her poor financial situation; but there was never any obvious suggestion that the cost of the treatment to which Dr Serry referred was unreasonable. In the circumstances, the AAT was not obliged to make in its reasons any observation based upon s 6(7)(b) of the Impairment Tables.
61 Under the heading "THE CONTENTIONS OF THE PARTIES", the Second AAT Decision outlined Ms Spaleta's submissions to the AAT. The Second AAT Decision stated in part:
The submissions on behalf of [Ms Spaleta] centred around an analysis of the various medical reports that were in evidence. There was particular emphasis on the reports prepared by Dr Serry and Ms Plotkin. Much of those submissions concentrated on how such reports could be construed in terms of whether or not firstly, [Ms Spaleta's] conditions had been fully treated and fully stabilised (the Respondent accepted that the conditions were fully diagnosed). Secondly, whether or not [Ms Spaleta] was suffering from a severe impairment, being an Impairment Rating of 20 points under the relevant Impairment Table.
62 Ms Spaleta said that, in fact, she did not make any such submissions and instead "referred to [the] exact wording as written by Dr Serry and Ms Plotkin". Having reviewed the transcript of the AAT Hearing, in my view the Second AAT Decision did not unfairly characterise Ms Spaleta's submissions. While it is true that she referred to the exact wording as she says, in my view she did so in an attempt to persuade the AAT to construe, accept and weight the relevant reports in a particular way.
63 Ms Spaleta also submitted that the AAT fell into error by refusing to accept into evidence the Certificate, in circumstances where the Certificate contained a medical opinion "not subject to any specific Act", though she acknowledged the Certificate was issued "under" the Wrongs Act. The AAT did not refuse to accept the Certificate itself into evidence. To the contrary, it accepted the Serry Report.
64 Ms Spaleta also contended that, while the Second AAT Decision referred to Ms Plotkin's responses to the "Dear Doctor" letter (see above, [18]) in its consideration of the 2018 Plotkin Report, the AAT nonetheless failed to consider the report's content - that is, the Second AAT Decision failed to consider that Ms Plotkin had explicitly stated that Ms Spaleta's psychiatric injury was fully treated and stabilised with a functional impact that would persist for more than two years from the starting date of the Qualification Period. She added that the 2018 Plotkin Report was issued on 12 February 2018, just some days shy of two years from the end of the Qualification Period, in circumstances where a condition is considered permanent if it is likely to persist for more than two years: Impairment Tables, s 6(4). Given that she had stopped working in 2011 - and, as of the hearing before this court some 13 years later, was still unfit for work - she rhetorically questioned when her condition "becomes permanent" within the meaning of the Impairment Tables.
65 Ms Spaleta plainly does not agree with the findings made in the Second AAT Decision; but that does not suffice to establish that it proceeded upon any relevant want of consideration of the 2018 Plotkin Report. The Second AAT Decision explicitly refers to that report, contains a footnote explaining its context and notes when it was produced relative to the other evidence.
66 In the 2016 Plotkin Report, Ms Plotkin considered whether further therapeutic support might be needed. Ms Plotkin stated that Ms Spaleta "would benefit from [Eye Movement Desensitization and Reprocessing (EMDR)] trauma therapy". In the 2018 Plotkin Report, Ms Plotkin added:
EMDR therapy could be helpful to help her deal with symptoms of PTSD. [Ms Spaleta] would need a lot more support to help her have the resources to be ready to cope with the processing that can occur between EMDR sessions. Also the success of EMDR therapy is also likely to be affected by her future uncertainty regarding her family's and her own health, it is not just a matter of helping [Ms Spaleta] to get over the past.
67 Ms Spaleta complains that, in her circumstances, EMDR could not reliably be expected to result in a significant functional improvement with a high success rate and low risk. Therefore, she said, EMDR could not meet the definition of a "reasonable treatment" as defined in s 6(7) of the Impairment Tables. Respectfully - and acknowledging that Ms Spaleta might well be right - I agree with the respondent that there was nothing before the AAT that ought to have compelled it to conclude that EMDR did not have a high success rate or anything other than low risk. It was open to the AAT to find that EMDR was not a reasonable treatment within the meaning of the Impairment Tables; but, equally, it was also open to find that it was. It was not an error of law for the AAT to find, as it did, that the availability of EMDR "[did] not support [Ms Spaleta's] contention that she satisfies the s 94 requirements".
68 Ms Spaleta also submitted that both the Serry Report and the Prytula Report observed that her prognosis was "guarded". She argued that this finding meant that it was not open to the AAT to conclude that the psychiatric treatments proposed in those reports met the requirements of s 6(7) of the Impairment Tables because they could not "reliably be expected to result in a substantial improvement in functional capacity" nor have "a high success rate". The respondent suggested that Ms Spaleta had assigned meaning to the word "guarded" that it ought not carry.
69 Dr Serry's opinion (recorded in the Serry Report) was as follows, namely:
[Ms Spaleta's] prognosis is guarded. She has a very significant psychiatric condition which has had substantial impact. There has been a marked deterioration in terms of her psychosocial functioning.
70 Dr Prytula's opinion (recorded in the Prytula Report) was as follows, namely:
[Ms Spaleta's] prognosis is guarded as the picture is one of extreme anxiety and decompensation without any apparent clarity in purpose in moving forward as seen in the lack of any respiratory function testing and respiratory treatment exploration.
71 Dr Serry and Dr Prytula appear to be using the word "guarded" to refer to any anticipated changes in Ms Spaleta's condition, absent additional medical intervention. The opinions could not be understood as asserting that there were no reasonable treatments available to her at all.
72 Ms Spaleta further contended that the Second AAT Decision misrepresented her submissions to the AAT when it asserted that she had ceased taking her medications "due to suffering side effects including weight gain". Rather, she argued, she had submitted to the AAT that she had stopped taking those medications because they had made her suicidal. That is a fair criticism. Ms Spaleta's evidence was that she had been advised that other medication would cause weight gain; but that was not the reason that she stopped taking what she had been prescribed. Insofar as it held otherwise, the AAT's reasoning is open to criticism. Nonetheless, nothing turned on that incorrect finding. It was open to the AAT to observe that it was reasonable for Ms Spaleta to pursue other forms of medications. Its conclusions about the nature of Ms Spaleta's conditions were not attended by any error of law as alleged.
73 Ms Spaleta further submitted that it was unreasonable for the AAT to rely on some of the Leong Certificates, in circumstances where more contemporary medical reports were available. That submission cannot be accepted. It is a matter for the decision-maker, not the court, to consider all of the admissible evidence and determine the appropriate weight to be given to it: Leone v Minister for Home Affairs (2020) 277 FCR 526, 543 [41] (Davies, Steward and Jackson JJ).
74 In conclusion, Ms Spaleta argued that the AAT disqualified her for a DSP on the basis that, because psychiatric treatment was mentioned in the reports, her psychiatric injury was not fully treated and stabilised. That, she maintains, was contrary to the weight of the evidence. For the reasons outlined, that submission might well have much to commend it; but it does not establish any error of law sufficient to warrant relief in this court.
75 Ms Spaleta's supplementary written submission, which in part expanded upon previous submissions and which I have therefore not replicated here, canvassed a number of further issues. Some require a degree of context.
76 The Serry Report contained an assessment of Ms Spaleta's impairment "using the appropriate American tables for impairment assessment", which was used "for the purposes of an action under the Wrongs Act". That assessment involved classifying impairments into classes, where higher numbered classes represented greater levels of impairment. Dr Serry made an assessment of Ms Spaleta's collective impairment "between Classes 2 and 3", but had "rounded up" to Class 3 (which represented an impairment of 25%). Ms Spaleta submits that that assessment represented a "high level" of impairment and a "comparative indicator of the severity of [her] mental health condition", and that that had been put to the AAT. But, she submits, the AAT failed to rely on that assessment, and also incorrectly referred to the Certificate as a "Certificate of Assessment of Degree of Impairment" (omitting the words "Arising from a Stabilised Injury"). Furthermore, she observes, at the AAT Hearing, the AAT had accepted her submission that the Certificate represented Dr Serry's medical opinion that her mental health condition was stabilised. Thus, it was not open (or not reasonably open) for the AAT to then find as it did.
77 The respondent correctly identifies that Ms Spaleta's complaints take issue with the AAT's findings of fact. It is a matter for the AAT to make a finding as to whether or not Ms Spaleta's mental health condition was fully treated and fully stabilised, and a finding to the contrary is amendable to correction only insofar as it was beyond what the evidence was capable of supporting: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390, 418 [91] (Hayne, Heydon, Crennan and Kiefel JJ). For the reasons canvassed above, it was open to the AAT to conclude as it did notwithstanding material that might have inclined it the other way (including Dr Serry's assessment and the AAT's apparent acceptance of Ms Spaleta's submission at the AAT Hearing).
78 Turning to the Leong Certificates, Ms Spaleta submits in her supplementary submission that it was not open to the AAT to prefer the opinion of a general practitioner over that of a psychiatrist or psychologist, especially in circumstances where:
(1) the Certificate had been issued as arising from a "stabilised injury";
(2) the 2018 Plotkin Report stated that her mental health condition was stabilised, would persist for more than 24 months, and recommended maintenance-based counselling; and
(3) the Serry Report and the 2018 Plotkin Report were produced well after the Leong Certificates.
79 While addressing a slightly different point, the respondent correctly submits that the AAT did not "prefer" the evidence of one expert over another - rather the AAT recorded in its reasons what was said in those reports, identified similarities and differences between them, and came to its own conclusion.
80 Ms Spaleta also submits that because the AAT did not specifically engage with the phrase "guarded prognosis", the Second AAT Decision failed to correctly identify that an available treatment must, among other things:
(1) be reliably expected to result in a substantial improvement in functional capacity (see Impairment Tables, s 6(7)(c)); and
(2) have a high success rate (see Impairment Tables, s 6(7)(e)).
81 It is difficult to understand the relationship between a purportedly "guarded prognosis" and whether a treatment is reasonable. Nevertheless, for the reasons outlined above (at [71]), there is no basis for criticising the Second AAT Decision for not specifically engaging with the word "guarded" in the way Ms Spaleta suggests that it ought to have. But more to the point, the AAT was plainly alive to what was necessary in order for a treatment to qualify as reasonable. For example, in dealing with the Segal Report, the Second AAT Decision observed that certain measures had been recommended, and that those measures "[seemed] to be reasonable treatment[s] as contemplated by paragraph [6] of the Impairment Tables".
82 Ms Spaleta also contends that the AAT's misrepresentation of the reason that she discontinued the medications to which paragraph [72] above refers also led to its failure to correctly identify the requirement that treatments must be reasonable treatments within the meaning of s 6(7) of the Impairment Tables. Respectfully, the AAT did not so fail. On a close read of the AAT's reasons (see above, [21]), it is apparent that whether it misapprehended the specific side-effect from which Ms Spaleta was suffering is of no moment: the surprise expressed by the AAT that Ms Spaleta did not seek to further explore other forms of medication applies equally regardless of any side-effects. It cannot properly be held up as evidence that the AAT failed correctly to identify the requirements of s 6(7) of the Impairment Tables.
83 The respondent grouped Ms Spaleta's contentions on the mental health condition question into two broad grounds of review. The first is that Ms Spaleta alleges that there was "no" probative material before the AAT upon which the conclusion could be drawn that her mental health condition was not fully treated and stabilised. The second is that Ms Spaleta alleges that it was "unreasonable" for the AAT to find that her mental health condition was not fully treated and stabilised.
84 As to the former, the respondent relies on Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, in which Mason CJ said (at 356):
So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning there is no place for judicial review as no error of law has taken place.
85 The respondent also relies on Nedeljko Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 (hereafter, "Kuljic"), where von Doussa J said (at 123-124):
For the AAT to accept some of the evidence in preference to other evidence where there is conflict does not necessarily indicate error on the part of the Tribunal. The inquiry that the Court on appeal would have to make is whether there was evidence upon which the AAT could reach the conclusions which it did. If there were no evidence at all to justify those conclusions there would be an error of law, but provided there is evidence which justifies acceptance of the body of evidence that was accepted, the most that can be said is that the decision so reached might be wrong as a matter of fact; no question of law would arise in that event.
86 The respondent says that it is clear that the AAT considered Ms Spaleta's submissions, and duly considered the evidence before it, including the Serry Report (and the Certificate), but that it simply did not agree with Ms Spaleta's interpretation. I agree. Ms Spaleta's submissions thus far do not establish that it was not open (or not reasonably open) for the AAT to conclude that her mental health condition was not fully treated and stabilised.
87 In relation to the unreasonableness ground of review, the respondent relies on Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 (endorsed by Hayne, Kiefel and Bell JJ in Minister of Immigration and Citizenship v Li (2013) 249 CLR 332), within which Lord Green encapsulated the foundation of an "unreasonableness" argument as follows (at [683]):
[There must be] something so absurd that no sensible person could ever dream that it lay within the powers of the authority…[It] is so unreasonable that it might almost be described as being done in bad faith. In fact, all these things largely fall under one head.
88 The respondent takes the position that the AAT's conclusion was based on all of the available evidence, and it cannot be said to have been unreasonable in the manner described by Lord Green.
89 Plainly, Ms Spaleta disagrees with the AAT's characterisation of the various expert reports. She may or may not have good reason to do so; but that is not the question that presents here. For the reasons that the respondent identifies, it was open to the AAT to favour the conclusions that it drew about the evidence that it had. Whether those conclusions were good conclusions is not for the court to say; it is more important simply to note that they cannot be impugned as products of legal error.
90 So to observe is not to dismiss all of Ms Spaleta's submissions. To varying degrees, it is apparent that at least some of her criticisms of the AAT's reasoning might be fair. Nonetheless, its conclusions about the nature of Ms Spaleta's conditions was not attended by any error of law as alleged and it follows that I would reject Ms Spaleta's contentions on that front.