FEDERAL COURT OF AUSTRALIA

Hewett v Comcare [2020] FCA 527

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed in part.

2.    Within 21 days, the parties confer and provide to the court either:

(a)    an agreed minute of orders reflecting the reasons published in support of these orders; or, in the event that agreement cannot be reached,

(b)    minutes of the orders that each proposes as a fair reflection of the reasons published in support of these orders.

3.    Further orders, including as to costs, be made in chambers upon consideration of that minute, or those minutes.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant (“Ms Hewett”), is a former employee of the Commonwealth Department of Social Security. The respondent (“Comcare”) is a statutory body established by s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (hereafter, the “SRC Act”). Amongst other things, its function is to receive and determine claims for, and to administer payments relating to, the compensation of Commonwealth employees who are injured in circumstances contemplated by the SRC Act.

2    Between 1986 and 2011, Ms Hewett worked as a Commonwealth employee, initially for the Department of Defence and later for the Department of Social Security. Between 1987 and 2011, she worked at the Commonwealth agency now known as Centrelink.

3    Over the course of her employment, Ms Hewett was unfortunate to endure multiple work-related injuries, both physical and mental. Of present significance are two injuries that she sustained as a result of an unhappy interaction with a member of the public in February 2004. Whilst seated upon a tall stool at the customer counter of the Ringwood Centrelink office, she was confronted by an apparently enraged client (whom another employee had, to that point, been assisting). The individual struck her computer monitor, causing it to lurch toward her, fortunately without detaching from the bracket to which it was mounted. Instinctively, she recoiled, twisting awkwardly on her stool. Albeit not immediately, that seemingly innocuous gesture brought about some discomfort in her head and neck. It (or the interaction that preceded it) was also the source of some anxiety, perhaps unsurprisingly so.

4    Following that event, Ms Hewett made claims under the SRC Act for compensation relating to her neck complaint and, later, to the stress that the incident had induced within her (apparently described in January 2008, when that latter claim seems to have been made, as “major depressive disorder recurrent episode”). Comcare accepted liability in both respects and, for a period thereafter, paid for Ms Hewett’s various treatments—in particular chiropractic, massage, physiotherapeutic, psychiatric, pharmaceutical and psychological treatments—as well as related travel expenses.

5    In the years following the incident in February 2004, Ms Hewett complained of additional pain in her shoulders and back. In February 2014, she underwent back surgery to relieve that discomfort (specifically, surgical arthrodesis involving the fusion of vertebrae in her cervical spine). Although the procedure was a success, Ms Hewett has nonetheless been left with what both parties agree is a whole-body impairment of 28%, as assessed in accordance with the Comcare Guide to the Assessment of the Degree of Permanent Impairment, ed. 2.1 (to which, as will shortly be shown, regard must be had under the relevant provisions of the SRC Act).

6    Following her surgery, Comcare made a series of decisions—five in total—regarding its liability to compensate Ms Hewett in respect of her impairment and to make ongoing payments for her various treatments. The particulars of those decisions are outlined below; but, in short, Comcare resolved that it should no longer pay for Ms Hewett’s treatments and was not liable to compensate her in respect of her impairment. All five decisions were affirmed upon internal review and Ms Hewett moved to challenge all five of those affirmations in the Administrative Appeals Tribunal (hereafter, the “AAT”). By a decision dated 4 January 2018, the AAT dismissed those challenges and affirmed all five of the relevant decisions (that decision and the written reasons that were published in support of it will be referred to, hereafter, as the “AAT Decision”).

7    By the present appeal, Ms Hewett challenges the AAT Decision. For the reasons that follow, the appeal will be upheld in part. Insofar as concerns her present psychiatric condition, I accept that the AAT Decision was the product of legal error. Insofar as concerns her neck condition and physical impairment, I do not accept that the AAT Decision was affected by legal error. The applications before the AAT (or at least some of them) shall be remitted for further hearing and determination but only insofar as they concern Ms Hewett’s psychiatric condition.

The decisions under review

8    The Comcare decisions that Ms Hewett seeks to overturn date back to 18 May 2015. On that date, Comcare made a determination that appears to have concerned Ms Hewett’s ongoing psychiatric (or psychological) treatment. The particulars of that determination were not before me but, regardless, its nature is apparent (at least partially so) from the application that Ms Hewett made to the AAT by way of challenge to it (or, perhaps more precisely, by way of challenge to Comcare’s decision of 4 September 2015 to affirm it upon internal review). By that application, Ms Hewett identified what it was that she felt Comcare ought to have determined: namely, that she ought to have been afforded “…psychology treatment from 9 March 2015 to 31 December 2015 and continuing at fortnightly intervals.” It is apparent—and not in contest—that, by its determination (and the later affirmation of it), Comcare resolved to limit what it would pay in respect of psychology treatments that Ms Hewett maintained were (and still maintains are) necessary on account of her psychiatric (or psychological) condition. Ms Hewett attributes that condition to her former employment (and, in particular, to the events that took place in February 2004).

9    On 6 August 2015, Comcare appears to have made another decision regarding Ms Hewett’s ongoing psychiatric (or psychological) treatment. Again, the particulars of that decision were not before me but, again, its essential nature—or, at the least, the essential nature of the decision made, following an internal review, on 7 September 2015 to vary that initial decision—can be divined through analysis of the parties’ submissions and the application that Ms Hewett made to the AAT. By the latter, in particular, Ms Hewett identified what it was that she felt Comcare ought to have decided. Again, she identified in that respect the same outcome as was identified in respect of Comcare’s 4 September 2015 affirmation (above, [8]).

10    On 27 November 2015, Comcare made another decision: this time, it appears, concerning medical expenses incurred in connection with Ms Hewett’s neck condition. Again, the court was left to divine the specifics of that determination from other material; but it is apparent (and not obviously in doubt) that the decision was to limit, or perhaps more probably to cease, payments relating to medical expenses for treatment that Ms Hewett maintains (and maintained) was reasonable in light of the neck injury that she sustained in 2004. Again, that decision was the subject of an internal review. It was affirmed on 6 January 2016.

11    On 3 December 2015, Comcare determined that it was not liable to pay to Ms Hewett compensation in respect of the permanent impairment with which she now lives. Ms Hewett claims an entitlement to such compensation under ss 24 and 27 of the SRC Act. Following an internal review, Comcare’s decision of 3 December 2015 was, on 6 January 2016, affirmed.

12    On 29 March 2017, Comcare made another decision, this time concerning medical expenses incurred in connection with Ms Hewett’s neck condition and psychiatric state. Specifically, that determination concerned (and disclaimed) Comcare’s liability to pay for Ms Hewett’s chiropractic, massage, pharmaceutical, physiotherapeutic, psychiatric and psychological treatments, as well as related travel expenses. Each, so Ms Hewett contended (and continues to contend) was reasonable in light of the neck injury that she sustained in 2004 or the subsequent injury to her mental state that arose from the events that caused it. Again, the determination of 29 March 2017 was the subject of internal review and, again, that review resulted in its being affirmed (specifically, on 5 May 2017). The extent to which the treatments that were the subject of the 5 May 2017 affirmation overlapped with the treatments that were the subject of any one or more of the 4 September 2015 affirmation, the 7 September 2015 variation or the 6 January 2016 affirmation (above, [8], [9] and [10], respectively) is not apparent; but nor is it likely to be material.

13    Each of those five decisions (hereafter and collectively, the “Reviewable Decisions”)—specifically:

(1)    the decision that Comcare made on 4 September 2015 to affirm its 18 May 2015 determination concerning Ms Hewett’s psychological treatment (above, [8]);

(2)    the decision that Comcare made on 7 September 2015 to vary its 6 August 2015 decision concerning Ms Hewett’s psychological treatment (above, [9]);

(3)    the decision that Comcare made on 6 January 2016 to affirm its 27 November 2015 decision concerning the treatment of Ms Hewett’s neck condition (above, [10]);

(4)    the decision that Comcare made also on 6 January 2016 to affirm its 3 December 2015 decision concerning Ms Hewett’s claim for compensation in respect of her permanent impairment (above, [11]); and

(5)    the decision that Comcare made on 5 May 2017 to affirm its 29 March 2017 decision concerning various of Ms Hewett’s treatments and related travel expenses (above, [12]—hereafter, the “Fifth Reviewable Decision”)—

was, by separate application, referred to the AAT for review (those applications are referred to, collectively and hereafter, as the “AAT Applications”). It is not controversial that each decision qualified as a “reviewable decision” within the meaning attributed to that phrase by s 60(1) of the SRC Act. As is stated above, the AAT Decision affirmed all of the Reviewable Decisions.

Legislative framework

14    In broad terms, the SRC Act provides (and, at all times material to this appeal, provided) for a framework for the payment of compensation to those employed by the Commonwealth (or by Commonwealth authorities) in respect of injuries sustained in connection with that employment. The compensation for which the SRC Act so provides is payable by Comcare. It assumes various guises, including for “death, incapacity for work, or impairment” (SRC Act, s 14), for costs associated with medical treatment (SRC Act, s 16), for “permanent impairment” (SRC Act, s 24) and for certain non-economic losses (SRC Act, s 27). In each case, the circumstance that triggers the entitlement to compensation is the sustaining of an “injury”.

15    “[I]njury” is (and, since 13 April 2007, has been) defined by s 5A of the SRC Act, which relevantly provides as follows:

5A Definition of injury

(1)    In this Act:

injury means:

  (a)    a disease suffered by an employee; or

(b)    an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

16    “[D]isease” is (and, over the same period, has been) defined by s 5B of the SRC Act, which relevantly provides as follows:

5B Definition of disease

(1)    In this Act:

disease means:

(a)    an ailment suffered by an employee; or

(b)    an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

(2)    In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a)    the duration of the employment;

(b)    the nature of, and particular tasks involved in, the employment;

(c)    any predisposition of the employee to the ailment or aggravation;

(d)    any activities of the employee not related to the employment;

(e)    any other matters affecting the employee’s health.

This subsection does not limit the matters that may be taken into account.

(3)    In this Act:

significant degree means a degree that is substantially more than material.

17    “[A]ilment” is defined by s 4(1) of the SRC Act as “…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.

18    Section 16 of the SRC Act confers upon Comcare liability for certain types of medical expenses. Relevantly, it provides (and, at all times material to this appeal, provided) as follows:

16 Compensation in respect of medical expenses etc.

(1)    Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

Note:    Compensation is not payable under this subsection in relation to certain claims (see section 119A).

…

(6)    Subject to subsection (7), if:

(a)    compensation in respect of the cost of medical treatment is payable; and

(b)    the employee reasonably incurs expenditure in doing either or both of the following:

(i)    making a necessary journey for the purpose of obtaining that medical treatment;

(ii)    remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;

Comcare is liable to pay compensation to the employee:

(c)    in respect of the journey—of an amount worked out using the formula:

Specified rate per kilometre × Number of kilometres travelled

where:

specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.

numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).

(d)    in respect of the employee remaining for the purpose of obtaining the treatment—of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.

19    Section 24 of the SRC Act confers upon Comcare a liability to compensate employees who suffer an injury that results in their permanent impairment. Section 24 relevantly provides (and, at all times material to this appeal, provided), simply enough:

24 Compensation for injuries resulting in permanent impairment

(1)    Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

…

(3)    Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4)    The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5)    Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6)    The degree of permanent impairment shall be expressed as a percentage.

20    The “approved Guide” is a reference to Comcare’s Guide to the Assessment of the Degree of Permanent Impairment, ed. 2.1 (SRC Act, s 4(1)).

21    Section 27 provides for additional liability—specifically in respect of non-economic loss—in consequence of an employee’s permanent impairment. It provides (and, at all times material to this appeal, provided) as follows:

27 Compensation for non-economic loss

(1)    Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.

(2)    The amount of compensation is an amount assessed by Comcare under the formula:

($15,000 × A) + ($15,000 × B)

where:

A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and

B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.

(3)    This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.

22    Before the AAT, Ms Hewett’s permanent impairment was uncontroversial: it was agreed that she had a whole-body impairment of 28%, as assessed in accordance with the “approved Guide”. It was also not controversial that the conditions in respect of which Comcare relevantly accepted liability—specifically, Ms Hewett’s neck complaint and her psychiatric condition, each of which arose out of the events of February 2004 (above, [3]-[4])—each qualified as an “injury”. In contest was whether the effects of those injuries continued as at the points at which Comcare made its Reviewable Decisions, such as might trigger the liability that Comcare, by those decisions, denied that it had.

23    The AAT’s jurisdiction to hear the AAT Applications is not controversial and need not here be set out. The hearing of those applications, the powers conferred upon the AAT in respect of them and the jurisdiction of this court to entertain an appeal from the exercise of those powers are all matters for which the Administrative Appeals Tribunal Act 1975 (Cth) (hereafter, the “AAT Act”) provides. The following sections of that statute assume some significance in the present appeal:

33 Procedure of Tribunal

(1)    In a proceeding before the Tribunal:

(a)    the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)    the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)    the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

43 Tribunal’s decision on review

…

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

Tribunal must give reasons for its decision

(2)    Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

…

(2B)    Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

…

44 Appeals to Federal Court of Australia from decisions of the Tribunal

Appeal on question of law

(1)    A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

Note 1:    This Part does not apply to certain migration proceedings (see section 43C).

Note 2:    A party to a child support first review may in some instances appeal instead to the Federal Circuit Court (see section 44AAA).

…

Powers of Federal Court

(4)    The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(5)    Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.

The AAT Decision

24    The contest that played out before the AAT was largely (although not solely) factual. Both sides led an array of expert evidence broadly supportive of their respective contentions.

25    For Ms Hewett’s part, that evidence (insofar as concerned her physical condition and impairment) was to the effect that the surgery that she underwent in 2014—and the permanent impairment to which she is now subject—each resulted from the neck injury that she sustained in February 2004. Mr David Brownbill, a consultant neurosurgeon at Royal Melbourne Hospital, gave evidence to the effect that the 2004 incident that produced Ms Hewett’s initial neck injury served as a “major contribution” to the ongoing pain that led to her surgical arthrodesis (and resultant, permanent impairment). He told the AAT that that injury aggravated Ms Hewett’s pre-existing disposition to the degeneration of her cervical spine. Similar evidence was given by Ms Hewett’s physiotherapist, Ms Louise Howe.

26    In response, Comcare led evidence from Mr Ronald Haig, a consultant orthopaedic surgeon. Mr Haig’s evidence was to the effect that Ms Hewett’s impairment did not result from the injury that she sustained in 2004. Instead, Mr Haig’s evidence was that Ms Hewett’s impairment was a consequence of cervical spondylosis, which was not attributable to the 2004 injury. That evidence was consistent with a 2006 report prepared by another orthopaedic surgeon, Mr Iain Kelman. Mr Kelman did not give evidence but his report was put before the AAT. In it, he concluded that Ms Hewett’s neck condition had resolved, that she no longer required any treatment in respect of it and that her employment no longer had any effect upon her cervical spine.

27    There was similarly conflicting evidence led in respect of Ms Hewett’s psychiatric condition. Dr Remy Glowinski, consultant psychiatrist, gave evidence that Ms Hewett suffers from “…a significant psychiatric illness, probably a moderate severity chronic adjustment disorder with mixed anxiety and depressive symptoms and features of traumatisation [or possibly] a major depressive disorder”. That condition, he concluded, was the result of what occurred in February 2004.

28    By contrast, Comcare led evidence from Associate Professor George Mendelson, a consultant psychiatrist. In a lengthy report dated 20 September 2016, Associate Professor Mendelson traced the various diagnoses offered in respect of Ms Hewett’s mental condition since 2006. Amongst other things, 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”. He concluded that Ms Hewett suffers from “…a Persistent mood (affective) disorder”, which he diagnosed as Cyclothymia. His report concluded (emphasis original):

Mrs Hewett does have a psychiatric condition “that is outside the boundaries of normal mental function and behaviour”, and that this condition has been present since at least the early 1990s. The diagnosis that I have made is Cyclothymia, based on the presence of recurrent mood swings that have not at any time reached the intensity of a hypomanic episode during periods of elation associated with a “hyperenergised state” as identified by Dr Glowinski, interspersed with depressive periods.

It is also my opinion that this psychiatric disorder, i.e., Cyclothymia, is not and has not been work-related, albeit in my view it has predisposed Mrs Hewett to react more intensely than would a person of “normal mental fortitude” to environmental stressors, including events at work. At the same time, however, I consider that any 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 that Mrs 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.

29    The AAT’s resolution of the evidential conflicts summarised above was brief and it is convenient to set out its findings in full. Under the heading “Findings”, the AAT reasoned as follows (errors original):

54.    The Tribunal found that Ms Hewett was suffering from both a neck condition which resulted in pain and also a psychological condition. The Tribunal accepted that these conditions were as a result of her employment at Centrelink, however, the progression of these conditions is not now attributable to her previous employment.

55.    The Tribunal did find that Ms Hewett is suffering ongoing pain, identified as neck sprain, but that it could not now be attributed to her compensable condition or as a result of her spinal fusion surgery. The Tribunal based its determination on the view of Mr Ronal[d] Haig, consultant orthopaedic surgeon, in his report of 2015, who considered that Ms Hewett’s employment no longer contributed to her condition and that her underlying disc degeneration was the root cause of her pain and not the incident in 2004. This contention was supported by the report of Dr Iain Kelman, consultant orthopaedic surgeon, who reviewed Ms Hewett in 2006 and found that her employment does not continue to affect her cervical spine and her condition has resolved. The Tribunal was perplexed as to why Comcare had not acted on this finding earlier.

56.    Further, the Tribunal found that Ms Hewett continues to suffer from a psychological condition which the Tribunal accepts as a major depressive disorder, but this too could no longer be attributed to her compensable condition. The Tribunal based its determination on the information provided by Ms Hewett’s treating psychologist Dr Power to the Comcare consultant psychologist 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. Dr Power also noted 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.

57.    The Tribunal found that Ms Hewett’s claim for ongoing medical expenses under section 16 of the SRC Act in respect to physiotherapy, chiropractic, massage, pharmaceuticals, psychiatrist, psychologist and travel costs were not reasonable ongoing treatments. There was no clear evidence that these treatments were benefiting her long-term pain management. Treatment for her psychological condition is now required in respect of Ms Hewett’s 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.

58.    The Tribunal found that as Ms Hewett’s compensable condition was no longer contributing to her current pain and that the impairment of the cervical spine following surgery by way of cervical arthrodesis at C3/4 (fusion procedure) was not required as a result of accepted compensable injury. There is therefore no liability under ss 24 and 27 of the SRC Act.

59.    The Tribunal observed that Comcare’s clinical framework for assessing reasonable medical treatment had not been followed. The framework establishes key measures of treatment effectiveness which are the ability of the injured person to manage their condition as independently as possible and to participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.

30    The AAT then summarised its conclusion in a single paragraph as follows:

60.    Based on the evidence before it, the Tribunal affirms all decisions under review. In relation to the determination of 6 January 2016, the Tribunal affirms the decision that Ms Hewett was no longer entitled to compensation pursuant to s 16 of the SRC Act as she no longer suffered from the effects of the accepted injury and consequently is not entitled to payment for permanent impairment.

The present appeal

31    By her notice of appeal dated 1 February 2018, Ms Hewett identifies five questions of law said to arise presently, namely:

1.    Did the [AAT] fail to make relevant findings on specific questions of fact material to the review of the [a]pplicant’s cessation of entitlement to compensation entitlements?

2.    Did the [AAT] fail to give reasons for its decision as required by section 43 of the [AAT Act]?

3.    Did the [AAT] fail to evaluate the evidence advanced by the [a]pplicant relevant to the specific questions of fact material to the review of the [a]pplicant’s cessation of entitlement to compensation entitlements?

4.    Did the [AAT] fail to address submissions advanced by the [a]pplicant and worthy of consideration, having regard to the issues in dispute and the material before it?

5.    Did the [AAT] fail to resolve the conflict of fact relevant to the specific questions of fact material to the review of the applicant’s cessation of entitlement to compensation entitlements?

32    The notice of appeal goes on to identify 17 grounds upon which the AAT Decision might be impugned as the result of legal error. They are organised into two categories: those that allege legal error in connection with the AAT’s findings as to Ms Hewett’s “…cervical spine injury and impairment” and those that allege legal error inherent in its findings as to her “Psychological injury and medical treatment expenses”. The individual grounds are reproduced in the analysis below.

Applicable legal principles

33    To succeed, Ms Hewett must satisfy the court that the AAT Decision was the product of legal error. In assessing whether or not it was, the court should be careful to construe the AAT Decision fairly, and ought not to indulge “…in an exercise which over-zealously picks the tribunal up in the way it has expressed itself”: Lennell v Repatriation Commission (1982) 4 ALN N29 at N55 (Northrop and Sheppard JJ); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ). The AAT is not a court and is not expected to scale or adhere to the standards to which judicial decision making is held: Azaey v Minister for Immigration and Border Protection (2015) 238 FCR 341, 353 [48] (North, Besanko and Flick JJ).

34    By reason of s 43(2B) of the AAT Act (above, [23]), the AAT was obliged to state in its decision its findings on material questions of fact and references to the evidence or other material on which those findings were based. That obligation will have been discharged if the decision reveals the bases upon which the AAT reached the conclusions that it did: Comcare v Power (2015) 238 FCR 187, 206 [99] (Katzmann J); Dodds v Comcare Australia (1993) 31 ALD 690, 691 (Burchett J); Commonwealth of Australia v (K C) Smith (1989) 18 ALD 224, 225 (von Doussa J).

The 2004 Neck injury and the present impairment

35    Ms Hewett advances the following grounds by way of challenge to the AAT’s conclusions about her “cervical spine injury and impairment”:

8.    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 neck, and, specifically, the denial of compensation for permanent impairment and non-economic loss pursuant to sections 24 and 27 in respect of a 28 percent impairment of the cervical spine.

9.    The [AAT] was required in the circumstances of the review to make findings of fact that could support its decision to deny the impairment benefit.

10.    In the circumstances, the [AAT] accepted evidence of the existence of a neck injury that was relevantly related to employment with Centrelink that was in its nature a “disc degeneration” but did not make findings that could support the conclusion that its “progression ... is not now attributable to her previous employment”.

11.    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”.

12.    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 impairment to the cervical spine, the existence of which was not disputed, was the result of the injury, not “employment”.

13.    It was not sufficient to conclude the questions posed in the review by merely finding that there was a “disc degeneration” that went through a “progression” and the [AAT] had to determine whether that progression of the disc degeneration 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.

14.    The [AAT] failed to evaluate the evidence given by the [a]pplicant’s witnesses that was consistent with the finding of disc degeneration which was progressive, but which also resulted from the employment injury.

15.    Further, the [AAT] failed to deal with submissions of the [a]pplicant concerning the nature of the compensable neck injury which supported the finding of either an “injury (other than a disease)” or a “disease”, being an ailment identified as “asymptomatic degenerative changes” which when aggravated resulted in injury. Further, that evidence was consistent with the “progression” accepted by the [AAT] in that it resulted in “C3-4 intervertebral disc derangement which acted as the basis for the later disc prolapse and protrusion with nerve root irritation requiring surgical decompression and fusion”. The submissions were consistent with the [AAT’s] finding of disc degeneration and its progressive nature but led to the conclusion of the impairment resulting from the injury and, thereby, entitlement to compensation. The [AAT] failed to deal with this central issue in the review and required the [a]pplicant’s central submission to be properly dealt with.

16.    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].

36    There is, it is fair to say, more than a little overlap in many of those grounds. In truth, they read more as submissions than as discrete bases upon which the AAT Decision might be impugned. Nonetheless, the nature of Ms Hewett’s case is clear enough. She complains that the AAT did not correctly grapple with the relationship between the neck injury that she sustained in 2004, and the physical condition and impairment with which she is now permanently afflicted. In particular, she complains that it did not indicate (or, indeed, have) a basis for its conclusion that the 2004 injury did not result in the present-day impairment.

37    Additionally, Ms Hewett attacks the AAT Decision on the basis that the AAT:

(1)    misunderstood the statutory test that it was to apply in conducting its review (ground 12);

(2)    failed to consider submissions that she advanced (ground 15); and

(3)    failed to provide reasons sufficient to discharge the obligation conferred upon it by s 43(2B) of the AAT Act (ground 16).

38    The language in which the AAT Decision is expressed is, in some respects, regrettable. The conclusions expressed at [54] (above, [29]) are a good example: the AAT concludes that Ms Hewett suffers (or was suffering) from “a neck condition…and also a psychological condition” and that each was “a result of her employment at Centrelink”; and, later, that “the progression of these conditions is not now attributable to [Ms Hewett’s] previous employment.” What is meant by “the progression of these conditions” could be clearer. If, conceptually, that was intended as a reference to Ms Hewett’s present physical and psychiatric conditions—as seems likely—then it is difficult to see how the “progression” of the older conditions into their present manifestations might not be attributable to Ms Hewett’s previous employment. If the initial injuries were attributable to it, then surely so must be any “progression” of them.

39    That reasoning—assuming that I have summarised it fairly—of course sits uneasily with the remainder of the AAT’s findings. At [55], the AAT concludes—on the strength of the evidence given by Mr Haig and the report of Mr Kelman (above, [26]) that the “ongoing pain” from which Ms Hewett suffers “…could not now be attributed to her compensable condition”. Again, that language is, perhaps, looser than it should be; but it is tolerably clear that the references to Ms Hewett’s “ongoing pain” and “compensable condition” are intended as references to, respectively, her permanent impairment and the neck injury that she sustained in 2004. To phrase it more precisely, the AAT must fairly be understood to have been concluding—consistently with what Messrs Haig and Kelman concluded—that the neck injury that Ms Hewett suffered in 2004 resolved prior to, and was not a cause of, the physical condition (and related impairment) with which Ms Hewett is now afflicted. The final sentence in that paragraph makes that clear. It records the AAT’s surprise that “…Comcare had not acted on [Mr Kelman’s conclusion that Ms Hewett’s 2004 neck injury had resolved as long ago as 2006] earlier”. It is tolerably clear (however much clearer it could have been) that the AAT’s conclusion was that Ms Hewett’s 2004 neck injury resolved some time prior to the impairment by which Ms Hewett is now afflicted.

40    That reasoning, in turn, must fairly be understood as informing the conclusion expressed at [58] of the AAT Decision that “…the impairment of [Ms Hewett’s] cervical spine following surgery by way of cervical arthrodesis at C3/4 (fusion procedure) was not required as a result of accepted compensable injury” (emphasis added).

41    Ms Hewett posits that, even if her 2004 neck injury had fully resolved prior to the onset of the permanent impairment with which she now lives, it does not necessarily follow that the latter has arisen independently of the former (or, to put it in the language that the SRC Act employs, that the 2004 neck injury did not result in the present-day impairment). That conclusion, she submits, would only be available if “…there is a finding [that] the disease or ailment [that led to the present impairment—specifically, Ms Hewett’s predisposition to the degeneration of her cervical spine] was not aggravated by the [2004] injury in a relevant way”. The AAT, she says, “…did not engage in any analysis of that aspect of causation”. Its failure to do so, she continues, amounts to a failure on its part to “discharge its obligations to make findings of fact and give reasons for such findings”.

42    Respectfully, I do not accept those submissions. The AAT was entitled, based on the evidence that it preferred (namely, that of Mr Haig and the report of Mr Kelman), to reason that Ms Hewett’s 2004 neck injury had resolved prior to—and, by reason of that resolution, did not result in—her impairment. Evidence sufficient to prove the negative proposition—namely, that that injury did not exacerbate Ms Hewett’s underlying predisposition to the degeneration of her cervical spine—was not necessary. The AAT was confronted with an evidential conflict that it had to resolve in the usual way. Either it could accept, as Ms Hewett’s evidence tended to suggest, that the impairment was a result of the 2004 neck injury (either directly, or because that injury aggravated or exacerbated an underlying ailment that was the impairment’s root cause); or it could accept, as Comcare’s evidence suggested, that the 2004 neck injury was fleeting and did not result in the impairment. It favoured Comcare’s evidence. If it was wrong to do so, that was an error of fact. It was a conclusion with which this court has no warrant to interfere (AAT Act, s 44(1)).

43    Ms Hewett’s complaint about the AAT having not expressly found that the 2004 neck injury did not aggravate an underlying ailment (and, in that sense, result in the impairment with which she now lives) proceeds upon an unduly constrained reading of the AAT Decision. Although, as has been noted, the language in which the AAT Decision is couched was not perfect, it is tolerably clear that the AAT accepted that the neck injury that Ms Hewett suffered in 2004 had resolved; and, more to the point, had resolved such that it could not properly be thought to have resulted in her impairment. There was a proper evidential basis for that finding.

44    Just as the AAT was entitled to reason that Ms Hewett’s impairment was not a result of her 2004 neck injury—and that, consequently, she was not entitled under ss 24 or 27 of the SRC Act to compensation in respect of that impairment—so too was it entitled to reason that there should be no entitlement under s 16 of the SRC Act to compensation for treatment relating to her present physical condition. Again, the reasoning that the AAT Decision discloses is, perhaps, thinner than might be optimal; but it is clear enough that the AAT concluded that the treatment to which Ms Hewett claimed that she was entitled was not treatment that was reasonably obtained in relation to an injury (as defined). Such a conclusion was inevitable given the AAT’s conclusion that Ms Hewett’s 2004 neck injury had resolved and that “she no longer suffer[s] from the effects of [that] injury” (AAT Decision, [60]; above, [30]). Ms Hewett, of course, urged a different conclusion upon the AAT—namely, that her 2004 neck injury had not only not resolved but had resulted in the complaints in which her present impairment sounds (and in respect of which she maintains that treatment is reasonably required). Had she succeeded on that front, it is difficult to see how compensation for the treatment in question might properly have been withheld. Ultimately though, that rested upon a finding of fact and, for much the same reasons as are stated above in respect of Ms Hewett’s impairment, the conclusion that the AAT drew in respect of the symptoms from which she now suffers (for the treatment of which she asserts an entitlement to compensation) was a conclusion drawn upon ample evidential foundation and otherwise without legal error.

45    It follows that I do not accept Ms Hewett’s contention that the AAT failed to understand the question or questions that it was required to address, or to otherwise discharge the obligations conferred upon it for the purposes of its review of each of the Reviewable Decisions (insofar as they related to her physical condition and impairment).

46    Similarly, I do not accept that the AAT failed to discharge the obligation conferred upon it by s 43(2B) of the AAT Act to provide reasons for its conclusions and, therein, references to the evidence upon which they were founded. On a fair reading of it, the AAT Decision discloses both the nature of and the evidential foundation for the AAT’s conclusion that Ms Hewett’s neck injury, having earlier resolved, did not result in her permanent impairment and does not now produce symptoms requiring treatment in respect of which compensation should be paid.

47    By her notice of appeal, Ms Hewett suggests (or appears to suggest) that the AAT failed to address a submission or submissions concerning her physical condition that she advanced before it and that that failure also amounted to legal error that this court ought to correct on appeal (ground 15—above, [35]). I regret to confess that I have found that ground very difficult to comprehend. That difficulty was compounded by the fact that no submissions, written or oral, were made discretely in respect of it. It may be that Ms Hewett meant by it nothing more than that the AAT’s conclusion as to the link (or absence of a link) between her 2004 neck injury and her present physical condition and impairment was the product of legal error. If that is the case, then I have addressed that point in my conclusions above. If, however, she intended to submit that there were contentions that she advanced before the AAT with which it “failed to deal” (in the sense that no consideration was given to them), then it is not apparent to what contentions that submission refers. That deficiency having not been addressed in her written or oral submissions, I am unable to accept that there were any submissions that Ms Hewett made before the AAT in respect of her physical condition that the AAT failed to consider (or otherwise “deal with”).

48    Insofar as concerns Ms Hewett’s present physical condition and impairment, I would answer each of the questions that are said to arise for consideration in this appeal (above, [31]) in the negative. The AAT’s affirmation of each of the Reviewable Decisions, insofar as they pertained to Ms Hewett’s physical condition, was, in each case, not the product of (or affected by) legal error.

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]).

Conclusions

72    The AAT’s affirmation of the Reviewable Decisions should, to a limited extent, be set aside. Insofar as that affirmation concerned the respects in which the Reviewable Decisions pertained to Ms Hewett’s physical condition and impairment, it was not the product of legal error and should not be disturbed. Insofar as it concerned the respects in which the Reviewable Decisions pertained to Ms Hewett’s psychiatric condition, it was relevantly affected by legal error and should be set aside. Orders should (and will) be made remitting the AAT Applications (or so many of them as pertain to Ms Hewett’s psychiatric condition) to the AAT to be heard and decided again; but only insofar as they concern Ms Hewett’s psychiatric condition and the compensation to which she maintains that she is entitled in respect of it. It is necessary to phrase the relief to be granted in that way because at least some of the Reviewable Decisions pertain to both Ms Hewett’s physical condition and impairment (on the one hand), and her psychiatric condition (on the other).

73    Comcare submitted that, were the court to remit any part of the appeal back to the AAT to be heard and decided again, it should, by order, require that the AAT be constituted by the same member. That submission was put on the assumption that any decision to remit would proceed upon a finding that the AAT had misunderstood its statutory task or failed to discharge its obligation to record material factual findings and evidential references within its reasons (and, primarily, upon the latter). Remitting the matter constituted by the appeal to the same AAT member would, it was suggested, satisfy the objective for which s 2A of the AAT Act provides. That section is in the following terms:

2A Tribunal’s objective

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a)    is accessible; and

(b)    is fair, just, economical, informal and quick; and

(c)    is proportionate to the importance and complexity of the matter; and

(d)    promotes public trust and confidence in the decision making of the Tribunal.

74    That section, of course, does not bind the court. Nor does it mandate the relief that Comcare advances as appropriate. Nonetheless, there is an attraction in remitting the matters that are to be remitted for rehearing before a member who, it might reasonably be presumed, enjoys an existing familiarity with the subject matter to be reconsidered. Doing so could, in some cases (and possibly in this one) avoid the need for the parties to re-lead evidence.

75    That attraction notwithstanding, I do not consider it appropriate in this case to make an order of that kind. Although the court is undoubtedly empowered to make such an order (AAT Act, s 44(4)), the default position in circumstances such as the present is that a remittal should be undertaken by a different tribunal member: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, 42-43 (Davies and Foster JJ, Burchett J agreeing in the result); Bashar v Comcare (2002) 69 ALD 784, 785-786 [13] (Madgwick J). In the present circumstances, I do not consider it appropriate to depart from that usual course. The more appropriate course—and the course that I will take—is to order that the matters to be remitted be heard and decided by a different AAT member.

76    In light of the potential uncertainty surrounding the precise subject matter of at least some of the Reviewable Decisions (above, [8]-[12]), I will order that the parties confer and, if possible, agree on the orders that should be made to give effect to these reasons (including with respect to costs). In the absence of agreement, I will order that the parties provide respective minutes of the orders that they submit should be made. I will make final orders in chambers after considering what is proposed.

Associate:

Dated:    23 April 2020