Anna Kucharski and Comcare
[2014] AATA 626
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/4230
General Administrative Division )
Re: Anna Kucharski
Applicant
And: Comcare
RespondentCORRIGENDUM
TRIBUNAL: Mr R G Kenny, Senior Member
DATE: 5 September 2014
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application and replace “Andrew” after paragraph 35 and before paragraph 36 with “Anthony”.
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Senior Member
[2014] AATA 626
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4230
Re
Anna Kucharski
APPLICANT
And
Comcare
RESPONDENT
Decision
Tribunal Senior Member R G Kenny
Date 2 September 2014 Place Brisbane The Tribunal affirms the decision under review.
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Senior Member R G Kenny
CATCHWORDS
WORKERS’ COMPENSATION - Liability accepted for major depressive disorder, single episode - Claim for permanent impairment – Condition not permanent - Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 14, 24, 27, 28
CASES
Filla v Comcare (2001) FCA 964
Hargreaves and Telstra Corporation Limited [2013] AATA 579
Harvey v Comcare (2000) AATA 654
O'Connell and Comcare [2012] AATA 532
O’Maley v Comcare (1997) 48 ALD 300
SECONDARY MATERIALS
Guide to Assessment of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
Senior Member R G Kenny
2 September 2014
BACKGROUND
In accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988
(“the Act”), Comcare (“the respondent”), on 22 June 2012, accepted liability for
Anna Kucharski’s (“the applicant”) “major depressive disorder, single episode” as being an injury related to her work with the Department of Defence (“the Department”). She first sought medical treatment on 22 December 2009 and this was accepted as the date of injury in accordance with s 7(4) of the Act. On 9 April 2013, the applicant lodged a claim for permanent impairment and non-economic loss under ss 24 and 27, respectively, of the Act. In a determination on 27 June 2013, the respondent rejected that claim and this was affirmed in a reviewable decision on 5 August 2013.
LEGISLATION AND ISSUES
Provisions of the Act relevant in this matter read:
“permanent” means likely to continue indefinitely.
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.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(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.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a) the employee has a permanent impairment that is a hearing loss; and
(b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
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 x A) + ($15,000 x 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
Comcare has published the “Guide to the Assessment of the Degree of Permanent Impairment”[1] (“the Guide”) which sets out the criteria by reference to which the degree of permanent impairment and the degree of non‑economic loss of an employee resulting from an injury shall be determined.[2] Of relevance to psychiatric conditions is Chapter 5 of the Guide.
[1] Edition 2.1
[2] See s 28 of the Act.The issues for determination are whether the impairment from the applicant’s psychiatric condition is permanent and, if so, what the associated degree of impairment is under Table 5.1 of the Guide.
EVIDENCE
The applicant
The applicant’s evidence[3] was that, since 1999, she has been employed by the Department within the Defence Material Organisation (“DMO”). It is not disputed that her depressive disorder resulted from bullying in the workplace by her supervisor. She was based in Sydney and has been on sick leave since September 2012.
In November 2012, she returned to her home town of Brisbane where she resides with her mother and brother in the family home. She has been engaged in successive rehabilitation programs with the goal of returning to work. Her current program provider, since May 2014, is CIM Groups (“CIM”) where her case is managed by Ms Katrina Humphrys who is an Occupational Psychologist and Rehabilitation Consultant. Previously, her program providers were Konekt, from August 2010 in Sydney, and Advanced Professional Management (“APM”) from December 2013 until May 2014, in Brisbane.
The applicant described the symptoms that she experiences as including constant tiredness, difficulty in sleeping, memory problems, trembling in her legs and hands, involuntary arm movements, chest pain, shallow breathing, “fogginess” in her hearing and diarrhoea. She has difficulty being outdoors in open areas and spends most of her time at home, mainly alone in her bedroom. She agreed that she walks from her home to the bus stop, even though this is in the open air, and is able to do so because she forces herself to continue. She has a good relationship with her mother and brother, but avoids face to face contact with others and telephone calls although she utilises the texting facility on her phone. She spends a lot of time each day using her computer on which she plays various games to stimulate her and on which she maintains contact with friends through Facebook. She also uses the internet to look for work and, in particular, views the Commonwealth Government Gazette and the separate websites of some Government Departments. She has no vehicle but is able to drive and uses her mother’s car from time to time.
The applicant is independent in caring for herself, doing her washing and maintaining her own room. She relies on her mother for provision of her meals but she assists with washing the dishes after meals. She believes that her condition would deteriorate if she was not staying with her mother. She has overcome a hoarding compulsion which she displayed when living by herself in Sydney and which resulted in her apartment being almost completely filled with items stacked to the ceiling to the extent that it was difficult to negotiate passage from room to room, or even see the floor. Things improved for her when she moved to Brisbane. Comparing her present circumstances with those in Sydney, the applicant said that she has fewer panic attacks and none of the serious events that would cause her to “completely freak out”. Her hand-trembling has improved and she no longer has suicidal thoughts. She felt that she continued to improve until the end of 2013 but has “plateaued” since then. In describing her functioning level, she said: “I can wash myself, buy food and get on a bus. That’s all”. She did not feel “connected” and was unable to maintain a relationship, in which regard she said that had tried to engage with partners “but had no feelings.” Despite that, she had a sexual relationship in both 2013 and 2014 which lasted for three and two months, respectively.
She was fearful of returning to work with the Department because of her previous experiences of being bullied and was not willing to work on a non-permanent basis because she is concerned at being stigmatised by fellow workers inquiring about her non-ongoing status. She is aware that her treating psychiatrist, Dr Kevin Calder-Potts, has recommended that she be given options from which to choose. As a direct result of this, the applicant was recently referred to a job in Oakey, but rejected this because of the distance from Brisbane. She said that she cannot deal with people and that the type of job that she could do would be in a room on her own with a computer. She said that she is able to converse with people when the topic is one that she knows about. As an example, she said that she was comfortable in giving evidence because she is referring to things she knows about but is unable to talk with others about new ideas or unfamiliar topics. She described herself as being motivated to return to work because she needs the money to help her to meet her debts.
In cross-examination, the applicant agreed that, when starting with CIM, she had an initial telephone conference with Ms Humphrys which lasted for one and a half hours. She agreed that, on the following day, she spoke with her psychologist, Anna Clarkson, and described Ms Humphrys as being “on the ball”. This was in contrast with APM about which she had some concerns, particularly in the way that a return to work plan had been amended without her agreement. She had no confidence in APM and requested a change to a new provider. She agreed that her name should be included on the Registers for work with various Departments including Veterans’ Affairs and Agriculture, Fishing and Forestry. However, she said that this was not in order to get such work but only to make potential employers aware of her qualifications and availability. She said that, if forced to, she would accept work with the Department but that her concern was not working as part of the DMO. The applicant realised that her current plan will end in November 2014 and she said that Ms Humphrys advised her that, thereafter, CIM would be canvassing the open market for work placements. The applicant agreed that she communicated positively with Ms Humphrys. If the applicant sees a position in her computer searches, she advises Ms Humphrys of this by email. She agreed that she has been helped by Dr Calder-Potts and Ms Humphrys to improve her symptoms but reports that she has not improved in 2014.
The applicant provided details of her social activities which she described as a shadow of what she enjoyed before she began suffering from her depressive disorder. She has driven to night clubs in Brisbane’s Fortitude Valley in 2013 where she enjoyed dancing but did not consume alcohol. She also attended the “Gangsters’ Ball” in September 2013 at the Tivoli Hotel which is an evening of music, dance and entertainment themed to a 1930’s setting for which she dressed accordingly. She has attended functions at Movie World including a Christmas function. She drove to a Halloween night in 2013, taking a friend and meeting up with a group of about 20 people. She also attended a Carnival event at the time of the Soccer World Cup which was styled on a Brazilian theme. She has attended the three day pop culture expo Supanova for many years. In 2013, she went to each day of the event at the Brisbane Exhibition Grounds where some 35,000 people attended. Her friend drove her and she adopted a Japanese style wardrobe for the occasion. The applicant takes Japanese language classes and travels to the teaching venue in the city by bus. She completed a 10 week course at the University of Queensland towards the end of 2013. She attends a “Meet up” course in the city with about 10 to 15 other people with whom she interacts. She also participates in a program supporting non-English speakers at the QPAC Café where attendees sit around a table and take turns at speaking.
She agreed that she had recently spoken to psychologist Dino Cipranio for a six hour phone conversation. She could not recall what they spoke about but she denied that she had advised him that she walks two to three kilometres on three occasions each week. She said that she does walk but usually in the context of “window shopping” in the city. She meets a friend, whom she met since coming to Brisbane, in the city each Monday night from about 8 until 10 pm. On those nights, she travels by bus to the city and walks around the shops while waiting for him to finish his work. She said that she had been doing this for about 12 months.
Medical evidence
Included in the medical evidence were reports from psychiatrists Dr Inglis Synott dated
7 December 2010 and 30 December 2011; Dr Paul Friend, dated 17 January 2012;
Dr Velimir Kovacevic, dated 27 September 2013 and Dr Wasim Shaikh, dated
21 March 2014. Also, reports were provided by psychologist Sandra Green (Black Dog), dated 8 August 2011 and general practitioner (“GP”) Dr Paul Bartels, dated 27 June 2013 and 11 August 2014. The applicant’s treating psychiatrist, Dr Kevin Calder-Potts, provided a report, dated 17 September 2013. The respondent tendered a document completed by Ms Kate Slack from the respondent’s instructing solicitors, Sparke Helmore, which was a memorandum relating to a conference that she, counsel for the respondent, Mr Anthony Harding had with Dr Calder-Potts on 30 July 2014. There was no objection to the tender of that document from the applicant’s representatives.
Some of those reports are related to the appropriate diagnosis of the applicant’s psychiatric condition and its relationship to her employment with the Department. That is the case with the report of Dr Friend. The following reports provided guidance on the issue of permanent impairment.
Dr Synott, Dr Kovacevic, Dr Shaikh and Dr Calder-Potts
Dr Synott’s opinion was that the applicant would not be prevented from returning to work by her psychiatric condition and that the best treatment would be through resolution of her industrial situation.
Dr Kovacevic reported that the applicant had commenced seeing a psychiatrist for treatment and had undergone a change in her medication from Luvox to Pristiq. He considered that, prior to these changes, her treatment was probably suboptimal. He described her prognosis as “favourable” and likely to improve if her work situation were to be resolved. He considered that she would be able to commence a return to work program in about six months but recommended that she do this in Brisbane rather than in Sydney.
When Dr Shaikh reported in May 2014, he wrote that the applicant was then under the care of Dr Calder-Potts whom she sees on a weekly basis. He also noted that she sees her GP each month and Ms Clarkson, psychologist, each month since the start of 2013.
Dr Shaikh diagnosed major depressive disorder. He described her prognosis as favourable but noted that negative factors include an extended history of symptoms, stagnation of treatment and time away from work. His opinion was that she should undergo psychiatric treatment until the end of 2014 with treatment thereafter being unlikely to provide further benefits. Dr Shaikh recommended that the applicant undertake a return to work program.
Dr Calder-Potts referred to the history of workplace difficulties the applicant experienced with the Department in Sydney and noted that she now resides in Brisbane with her mother and brother. He wrote that she was not ready to return to work and was fearful of working in the Department. Dr Calder-Potts described her as complaining of excessive itchiness, marked anhedonia, and being unable to resume her former interests. He described her as agoraphobic with reluctance to leave the house, and as having sleeping difficulties. He wrote that he had changed her medication from Luvox to Pristiq. He considered that she had a reasonable prognosis of returning to work. In the memorandum, Dr Calder-Potts is noted to have described the applicant living a secluded life with her mother, as getting out and undertaking hobbies around Brisbane, and as being capable of maintaining normal activities of daily living on her own. He described the limitation in returning to work was the difficulty of identifying a suitable placement for her. He considered that her psychological condition was basically treated but with a vulnerability to anxiety.
Dr Paul Bartels, GP
Dr Bartels completed a report on 27 June 2013 in which he set out a brief history of the applicant’s condition. He wrote that her prognosis for long-term recovery was good. He completed a medical certificate on 11 August 2014 declaring that the applicant had no work capacity from 12 August 2014 until 8 September 2014.
Dr Peter Klug and Dr Tom George
Oral evidence was given by psychiatrists Dr Klug, whose reports were dated
5 August 2014, 21 January 2014 and 28 April 2014 and Dr Tom George, whose reports were dated 11 April 2013 and 31 July 2014.
Dr Klug saw the applicant on one occasion in November 2013. In his reports, he diagnosed chronic major depressive disorder but also noted that the applicant suffered from a panic disorder and agoraphobia. His opinion was that she needed ongoing treatment and should be under the care of her GP and a psychologist for cognitive behavioural therapy. He also wrote that, as well, she should see a psychiatrist on at least a monthly basis and probably, at times, on a fortnightly basis. Dr Klug also considered that the applicant may benefit from an inpatient admission for four to six weeks duration.
Dr Klug noted that the applicant had suffered depression for more than four years and he considered that her condition had stabilised, that any suggestion of improvement was “speculative”, and that the ongoing treatment was to prevent deterioration. He listed a range of effects that the applicant experienced because of her depression including phobic anxiety about being outside, maintenance of contact with old friends, social withdrawal, suicidal ideation and a disconnection from reality. He recommended a 20% rating under Table 5.1 of the Guide
Dr Klug described occupational rehabilitation as a “blunt instrument” because it was an unsophisticated form of treatment which was unlikely to assist the applicant. He referred to the recommendation of a work location in Oakey as an example of this especially for a person who does not have a vehicle to commute for two hours each way each day to attend the workplace. Dr Klug conceded that the quality of the particular program had to be considered but said that, in his experience, they are all about the same and that the claims made by the providers can be summarised as “motherhood statements”. He also said that he was familiar with the CIM program from past experience and that it was of the “same ilk” as other programs, despite the claim that it is tailored to the needs of a particular patient. It was pointed out to Dr Klug that, in the CIM program, Oakey had not been recommended for the applicant but was put forward as a proposal of a possible employment opportunity. Dr Klug was critical of the opinion of Dr George, in that an occupational rehabilitation program should be run concurrently with a psychotherapy program. He considered that they should remain separate to avoid one person taking on a dual role.
Dr Klug said that the applicant’s mother and brother are supportive of her and satisfy aspects of her activities of daily living. In particular, he noted that her mother shops and cooks for her and that the applicant had an experience when she burned food because she had forgotten that the stove had been left switched on. He considered that she was “directed” in her activities of daily living by her treating GP, psychologist and psychiatrist, as well as her family members, whom he assumed were suitably qualified to do so. He also considered that she was “supervised” in those activities by her family members whom he assumed were capable of responsibly caring for her in an appropriate way.
Dr Klug was referred to the applicant’s evidence concerning her social activities as set out above.[4] These included driving to and dancing in night clubs in the Valley in 2013, attending the “Gangsters’ Ball” in September 2013 at the Tivoli Hotel, driving with a friend to, and attending, functions at Movie World to meet a group of other people; attending each of three crowded days at Supanova dressed in Japanese themed costumes, taking Japanese classes, assisting others to speak English; and meeting up on Friday nights with a friend she has met since coming to Brisbane. Dr Klug said that these matters did not change his opinion about the effects that depression has on the applicant and that she had told him that she forced herself to socialize every one or two weeks. That was also the case in regard to the sexual relationships the applicant had in 2013, which the applicant had not told him about, and 2014, in that he said he would need to know something about the quality of the relationship. Dr Klug agreed that the description he gave about the applicant resulted from the self-reported account of her activity and history.
[4] See paragraph 10 (above).
In his first report, Dr George described the applicant’s prognosis as “favourable” and noted that her condition had improved with her move from Sydney to Brisbane in November 2012. He recommended that she be reassessed by a specialist psychiatrist in relation to her medications and psychotherapy at least fortnightly for two months, and then every three to four weeks for about six months, followed by less frequent consultations for another year. In his second report, Dr George considered that the applicant’s condition had not stabilised and that she would benefit from occupational rehabilitation therapy for a period of six to twelve months. In that, he agreed that his opinion differed from that of Dr Klug.
Dr George said the benefit from occupational rehabilitation was dependent on the quality of the service provider and the program in question. He noted that the applicant had been with three providers and that he was responsible for the cessation of the first program. He believed that occupational rehabilitation should be distinguished from cognitive treatment because they have different goals. However, he also believed that they could complement each other. When he recommended occupational rehabilitation for the applicant, the kind of program offered by CIM was what he had in mind. Significantly, he noted that Ms Humphrys had contacted Dr Calder-Potts before her program commenced and had remained in contact with him during the program. He said that the program had not yet been completed and that the applicant had not yet become stabilised. His opinion was that her chances of becoming stabilised to a point where she will be able to resume work have been enhanced by the change in her medication to Pristiq and the psychological therapy that she has been undergoing. Dr George considered that the timing of occupational rehabilitation is extremely important and that the applicant’s present circumstances leave her well placed at this time to benefit from a sound occupational rehabilitation program such as that of CIM. He considered that it was significant that the applicant had been able to engage in the social activities about which she gave evidence. Dr George conceded that the applicant may have some impairment for the rest of her life but that her current programs will seek to enable her to have better control of her symptoms.
Dr Peter Wilkins, Occupational Physician
Dr Wilkins saw the applicant in November 2010 and completed a report on
7 December 2010. He noted and agreed with the opinion of Dr Synott, whom the applicant had seen on the same day, that there was no psychiatric reason for the applicant not being able to undertake full-time duties and that the impediment was the interpersonal/ workplace relations problem.
Psychologists Dino Cipriani and Katrina Humphrys
Oral evidence was given by psychologists Mr Cipriani whose reports were dated
14 November 2012 and 13 August 2014 and Ms Humphrys whose report was dated
15 August 2014.
Mr Cipriani is a Sydney-based clinical psychologist who saw the applicant in late 2012 and provided a report, dated 14 November 2012. He initially interviewed her over a period of one and a half hours. He completed a further report on 13 August 2014 after speaking to the applicant by phone for one and a half hours. He also gave evidence. In his first report, Mr Cipriani noted that the applicant had continued to perform her usual duties and that her symptoms would be unlikely to improve with treatment unless she was transferred to another section or location. His opinion was that the appropriate impairments rating under Table 5.1 of the Guide was 15%. Mr Cipriani considered that she had improved by the time of his second report and that she also believed that to be the case. He was unable to say whether the improvement was due to her move to Brisbane or her treatment. He concluded that it could be due to a combination of these. He said that obtaining work is an important goal as it can be a positive experience by increasing a person’s sense of self and can reduce symptoms so long as the person is coping with the work. Mr Cipriani’s opinion was that the applicant should continue with occupational rehabilitation with CIM. He said that he regarded this as a positive step. Mr Cipriani noted that the applicant reported that she had difficulty walking but also told him that she walks two to three kilometres on three occasions each week and had lost 10 kilograms in weight since moving to Brisbane. Mr Cipriani also noted that the applicant reported difficulty with communication but he said she displayed minimal difficulty in responding to questions during his one and a half hour interview with her.
Mr Cipriani said that he had not been made aware of the applicant’s social activities involving night club attendances and those at Supanova or the “Gangsters’ Ball”. He was aware that she had gone to Movie World but not that she attended venues with crowds of people. Mr Cipriani said that he had been aware that the applicant had a sexual partner but understood that these were brief encounters rather than relationships which continued for two or three months. In his second report, he again allocated a 15% impairment rating under Table 5.1. However, he agreed that the definitions of “supervision” and “direction” associated with that Table were not met. He noted that the applicant advised him that she had “plateaued”.
Ms Humphrys is an Occupational Psychologist and a Rehabilitation Consultant employed by CIM. She completed a report, dated 15 August 2014, and gave evidence. Initially, from April 2014, Ms Humphrys’ contact with the applicant was through Dr Calder-Potts or the applicant’s solicitor. She reported that this had now changed and that their lines of communication had improved in that they now contact each other by email and through monthly face to face sessions. She described these as positive and she said that she felt that they had good rapport with each other. Ms Humphrys said that it was difficult to find employment for the applicant because her skills were relatively specific to the DMO work. The applicant said Commonwealth Public Service (“CPS”) job vacancies were not common at the moment. She also advised Ms Humphrys that she did not want to work with telephones. Ms Humphrys said that, while search for work initially was in relation to permanent positions, this had recently changed and a new occupational rehabilitation program had been drawn up. This was because the applicant had agreed to seek non-ongoing positions within the CPS. As a result Ms Humphrys said the applicant’s name was now registered with other Commonwealth Departments. Ms Humphrys also advised that, from the end of the rehabilitation plan in November 2014, positions in the open market will be sought.
Ms Humphrys’ opinion was that the rehabilitation program which the applicant is undertaking has been beneficial to her. Ms Humphrys saw occupational rehabilitation as an important tool in assisting people to recover from injuries and conditions that have impacted their ability to work. She said that occupational rehabilitation was more than just finding as job, but assists people to find purpose in their lives and to improve their health and well-being, particularly their psychological health. She described the CIM approach as being individualised in that it is targeted to the rehabilitation of the particular person. Ms Humphrys said that in the applicant’s case this was demonstrated in that she spoke to Dr Calder-Potts before her initial interview with the applicant and continued contact with him and Ms Jackson throughout the program.
Ms Humphrys said that she was unaware that the applicant wanted a job where she sat in a room alone with a computer. However, she considered that any position involved some personal interaction.
SUBMISSIONS
Mr Toby Neilsen
For the applicant, Mr Neilsen submitted that the applicant’s depressive disorder was now long standing, having been present since 2009. He submitted that reliance should be placed on the evidence of Dr Klug and Mr Cipriani which was to the effect that there was no likelihood of the condition improving for the reason that it has been plateaued since the end of 2013. He noted that she had been subject to rehabilitation and therapy and had had consultations with seven psychiatrists including her current treating psychiatrist
Dr Calder-Potts. He also submitted that she had been engaged with three separate service providers for psychological counselling and occupational rehabilitation. Mr Neilsen submitted that the applicant continues to display significant psychological symptoms including fear, and paranoid feelings, about returning to work with the Department. He submitted that the applicant was motivated to return to work but that this did not include working on a non-ongoing basis because she feared that this would attract a stigma to her. He submitted that it was not likely that she will be able to work because of the impact working would have on her psychological state. The applicant provided in her statement that the work she wanted was in a room by herself with a computer and that she needed to remain in her bedroom, apart from some four hours per day.
Mr Neilsen referred to the social outings undertaken by the applicant and submitted that these should be seen in the light of her own statement that these were only a shadow of the social life she enjoyed before the onset of her depressive disorder, as well as her references to the need to force herself to undertake activities. He also submitted that the number of the applicant’s outings identified by the respondent was small when it is considered that they were spread over a two year period. He referred to her sexual relationships in 2013 and 2014 and noted that there was no evidence of their nature.
Mr Neilsen submitted that the accounts about her impairment given to various doctors by the applicant were not inconsistent with the evidence the applicant gave at the hearing.
Mr Neilsen submitted that, in accordance with the criteria in s 24(2) of the Act, the applicant’s impairment was long standing and that it was unlikely to improve despite the extent to which she had undertaken rehabilitative treatment. Accordingly, he submitted, it should be found that her depressive disorder has resulted in permanent impairment and that the respondent is liable to pay compensation to her. He submitted that the appropriate level of impairment was 20% under Table 5.1 of the Impairment Tables in accordance with criteria listed therein and the opinion of Dr Klug. Mr Neilsen referred to the following authorities: O’Maley v Comcare[5], Harvey v Comcare[6] and
Fillav Comcare.[7]
Mr Andrew Harding
[5] (1997) 48 ALD 300.
[6] (2000) AATA 654.
[7] (2001) FCA 964.
For the respondent, Mr Harding submitted that the applicant has demonstrated gradual but continuous improvement in her condition into 2014, despite her evidence that she had plateaued by the end of 2013. Dr George accepted that this had occurred more recently with the result that, for the first time, the applicant was in a position where her current occupational rehabilitation program with CIM would be effective. He submitted that the earlier programs had not proven successful either because the applicant was still in the stressful work environment, or because the program was not appropriate to her needs.
Mr Harding referred to Dr George’s evidence that the applicant was at an optimal time for rehabilitation and submitted that it was reasonable for the applicant to be given that opportunity. Indeed, he submitted that until that is done, the applicant’s condition cannot be described as permanent.
Mr Harding submitted that I should accept the evidence of Ms Humphrys concerning the applicant’s progress and the tailored nature of the rehabilitation program she is conducting through CIM Group. He noted that there were still some months before the program came to an end and that there was a prospect that it could be extended. He noted that Ms Humphrys had described a difficult job market for potential employment with the CPS. Mr Harding also noted that Ms Humphrys had broadened the scope of the applicant’s options by registering her for non-ongoing roles in other CPS departments which would enable the applicant to gain work experience. He noted that the applicant said that she had not agreed to this, despite the fact that she has been registered with two departments in that way.
Mr Harding submitted that the applicant had given Dr Klug and Mr Cipriani a false impression of her functional capacity, and that their evidence did not reflect the real level of activity of which the applicant was capable either in respect of her social activities or in her activities of daily living. He noted that this was conceded by Mr Cipriani but that Dr Klug was unwilling to make any concessions and maintained his general criticism of the nature of occupational rehabilitation programs. He referred to the favourable prognoses entered by Dr Synott, Dr Kovacevic, Dr Shaikh, Dr Wilkins and Dr Potts. He submitted that Dr Bartels’ work certificate was inconsistent with those opinions, which was to the effect that the main problem is finding a suitable employment position.
Mr Harding submitted that the applicant should see the CIM program through to its conclusion as it may lead to her being placed in work.
In relation to the level of impairment, Mr Harding submitted that, when a proper analysis is made of the activities of daily living in the applicant’s case, the threshold level of 10% under Table 5.1 is not achieved. He submitted that the decision under review ought be affirmed. Authorities he referred to were Hargreaves and Telstra Corporation Limited[8], Fillav Comcare[9] and O’Connell v Comcare.[10]
[8] [2013] AATA 579
[9] (2001) FCA 964.
[10] [2012] AATA 532.
CONSIDERATION
Under s 24(1) of the Act, the respondent is to pay compensation to an employee where a compensable injury results in a permanent impairment. In so determining, regard must be had to the factors in s 24(2) of the Act viz:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
It is common ground that the applicant has experienced symptoms of her depressive disorder since December 2009 even though she continued to work with the Department until September 2012. Since 2010, she has been engaged in three rehabilitation programs. Initially, this was with Konekt in Sydney while she was still working but improvement in her symptoms was not noted until she returned to Brisbane in November 2012, and resided in the family home with her mother and brother. From October 2013, she was engaged in a second rehabilitation program with APM in Brisbane but this was discontinued in April 2014 with the applicant “continuing to experience significant psychological symptoms” and with no employment found for her. Since then, the applicant has been undertaking a further rehabilitation program with CIM, counselling with psychologist Anna Clarkson, and treatment by Dr Calder-Potts.
Dr George and Dr Klug provided opinions about the applicant’s current treatment regimen. Before referring to that, I have noted that the general thrust of psychiatric opinion is that there is a favourable prognosis for the applicant. That was the case with Dr Synott in December 2011, Dr Kovacevic in September 2013, Dr Shaikh in May 2014 and Dr Calder-Potts in July 2014. However, the common thread in those reports is that the relevant stressor was the applicant’s work with the Department and the view that the applicant’s rehabilitation will require the resolution of that employment-related problem. That was also the opinion of Dr Wilkins in December 2010.
Dr Klug expressed strong negative opinions about the effectiveness of all occupational rehabilitation programs. When the particulars of the CIM program were explained to him he maintained his general criticism. The strength of his views appeared to mask the circumstances of the applicant as he saw them. He said that the kinds of social engagements undertaken by the applicant in 2013 and 2014, as given in her evidence, were no different from the details she provided to him when he saw her and which he recorded in November 2013. I do not accept his evidence in that regard. She meets up with friends she has met since returning to Brisbane, she attends functions where large numbers of people congregate, she has participated in learning and teaching groups on a regular basis, she drives her mother’s car to venues such as Movie World, she has participated in themed evenings by dressing in the style appropriate to the function, and she has had sexual relationships in both 2013 and 2014. I am satisfied that the applicant’s interest in engaging, and her ability to engage, in those kinds of activities is not consistent with the opinions expressed by Dr Klug in his reports or his evidence.
I accept Ms Humphrys’ evidence about the nature of the occupational rehabilitation program offered to the applicant by CIM. From the beginning it has been, and continues to be, integrated with the psychological counselling and treatment offered by Ms Jackson and Dr Calder-Potts. Dr George strongly supports the program and his opinion is that the applicant is now in a position to take advantage of it. I am satisfied that the CIM program offered to the applicant constitutes reasonable rehabilitative treatment which should be continued and, in that regard, I note that there is no evidence that the applicant is unwilling to continue with it. There are prospects of the applicant continuing to improve and finding suitable employment, which have been the goals identified in the various psychiatric reports in order for her to overcome her depressive disorder.[11] I accept
Mr Harding’s submission that while the program remains for the applicant to complete, she has not undertaken all reasonable rehabilitative treatment. With the prospect of improvement, I am not satisfied that her condition is likely to continue indefinitely.[12]
[11] See, generally, Filla v Comcare (2001) FCA 964 at [55] to [60] (affirmed in Comcare and Filla [2002] FCAFC 61 at [13]).
[12] As provided for in s 4 of the Act.
Having regard to the factors listed in s 24(2) of the Act, I am not satisfied that the applicant’s work-related injury has resulted in permanent impairment.[13] As the Tribunal has previously stated, it is open to the applicant to apply again for compensation for permanent impairment should her circumstances change.[14] As I have found that the requirements for permanent impairment have not been met, it is unnecessary to consider the level of her impairment under the Impairment Tables.
[13] In doing so, I have considered the authorities referred to by both parties.
[14] See Hargreaves and Telstra Corporation Limited [2013] AATA 579 at [72].
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member R G Kenny ...............................[Sgd].........................................
Associate
Dated 2 September 2014
Dates of hearing 18 and 19 August 2014 Solicitors for the Applicant Shine Lawyers Solicitors for the Respondent Sparke Helmore
[2] The applicant completed an undated 26 page statement and gave oral evidence.
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