Bain and Comcare
[2003] AATA 631
•20 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 631
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/75
GENERAL ADMINISTRATIVE DIVISION ) Re JEFFREY WILLIAM BAIN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President Don Muller Date20 June 2003
PlaceBallina
Decision The Tribunal sets aside the decision under review and in substitution decides that:
1. Jeffrey William Bain has a work related permanent psychiatric impairment assessed at a level of 10% pursuant to Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment.
2. The Respondent to pay the Applicant’s costs according to the General Practice Direction, limited to legal costs and witness expenses.
..............(Signed)................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
WORKERS COMPENSATION – work related psychiatric permanent impairment – whether reasonable to undertake rehabilitative treatment
Safety Rehabilitation and Compensation Act 1988: ss 24, 27, 28
REASONS FOR DECISION
20 June 2003 Deputy President Don Muller 1.This is an application by Jeffrey William Bain for review of a decision to reject his claim for permanent impairment due to psychiatric illness claimed to have arisen out of the applicant’s work with the East Australian Pipeline Authority Pty. Ltd.
2.The evidence produced by the various psychiatrists who have written reports and given oral evidence to the Tribunal all agree that Mr. Bain suffers from a psychiatric illness. They all agree that he suffers from Post Traumatic Stress Disorder (PTSD). Dr. Varghese gave evidence that in his opinion Mr. Bain’s illness is more complicated than simple PTSD diagnosis. Dr. Varghese believes that Mr. Bain has other factors superimposed on PTSD.
3.The following facts are not in issue and the Tribunal finds as follows:
(i)Mr. Bain was born on 29 October 1951.
(ii)When he was 12 years of age he witnessed the murder of a woman by her husband, while they were all passengers on a train. He was a witness at the subsequent committal and trial.
(iii)He worked for the PMG and Telecom entities as a “technical officer”, both as a trainee and as a tradesman from 1968 to 1980.
(iv)In 1980 he joined the Pipeline Authority as a technical officer.
(v)Between 1980 and 1996, Mr. Bain experienced some extremely severe stressors while on duty with the Pipeline Authority. It is not necessary to go into details here, but the events were:
(a)In 1984, he was working on pipe maintenance in the Broken Hill area when a light plane crashed nearby. He went to the crash site to give assistance. He came upon an extremely gruesome scene, which greatly disturbed him.
(b)In 1985 he was working on a compressor station about 120 kms west of Cobar. A co-worker fell from a gantry and landed on concrete next to where Mr. Bain was standing. The co-worker landed on his head, neck and shoulders. He was seriously injured.
(c)In 1986, Mr. Bain was again working on the pipeline west of Cobar when a stockman doing aerial mustering crashed his plane nearby. Mr. Bain went to the crash site and again encountered an horrific scene.
(d)On 31 August 1988, Mr. Bain was driving a four-wheel drive vehicle, following two co-workers who were also travelling in a four-wheel drive vehicle. The road consisted of a narrow track which traversed many low rises. On one such rise the four-wheel drive vehicle in which Mr. Bain’s co-workers were travelling ran head on into a road train. Mr. Bain came upon a very bad scene. One of the co-workers was killed. A few days later, Mr. Bain had to retrieve equipment from the crashed vehicle. This involved cleaning his late friend’s blood from the inside of the vehicle. Mr. Bain tried to go back to work after this incident but he found that he could not cope. He took three months long service leave.
(e)In 1990, Mr. Bain and a co-worker were travelling from the compressor station to Cobar when they came upon a car which had gone off the road and rolled over. The driver had been thrown out but his passenger was trapped in the car as it started to burn. Mr. Bain and his companion extricated the passenger before the car exploded in flames. They found the driver and tried to resuscitate him but he was dead.
(f)In 1993, Mr. Bain was travelling from Tibooburra to Cobar when he came upon an overturned vehicle which he recognised as a Pipeline Authority vehicle. A workmate of Mr. Bain was in the vehicle. He was not seriously injured.
(g)In 1995/96 a workmate was killed when he was hit in the face by a hose which was “snaking” under pressure.
(vi)Mr. Bain ceased work in 1996 and has not worked full-time since.
4.The Tribunal accepts the evidence of the psychiatrists who have reported that the incidents experienced by Mr. Bain while working for the Pipeline Authority, referred to above, were of sufficient severity to cause Mr. Bain’s PTSD.
5.Mr. Bain also had some psycho-social stressors in his private life. His first marriage failed in about 1985. He was also upset by certain other events that affected his children.
6.Mr. Bain started a relationship with a woman friend at about the time that his first marriage expired. He later married his friend in 1994 and they are still married.
7.There has been a suggestion by the Respondent that Mr. Bain may have suffered PTSD from the age of 12 years when he witnessed the murder. It was further suggested that his horrific experiences while working for the Pipeline Authority may have merely aggravated his condition. There was also a suggestion that Mr. Bain’s private life played a large part in his development of PTSD.
8.The psychiatric opinion about the effects of the witnessing of the murder in 1963 are to the effect that the incident would certainly have been distressing, but Mr. Bain successfully got on with his life, went back to school, learnt a trade, worked for PMG/Telecom for 12 years and worked for the Pipeline Authority for four years before the horrific experience in 1984. That is, he recovered from the murder incident fairly quickly. It was the series of experiences while he was working on the pipeline that caused his PTSD.
9.The Tribunal accepts that Mr. Bain’s history from 1963 to the present suggests that he did indeed recover from the murder incident quite well. The incident which occurred on 31 August 1988, after which he had three months off work, seems to have had a “last straw” effect on him. The evidence of Mr. Bain and that of his wife Sharon Bain was to the effect that Mr. Bain started to change after 1988 and that by about 1994 he was showing distinct signs of being unwell.
10.The Tribunal takes the view that Mr. Bain’s domestic problems may have been upsetting to him at the time but hardly amount to psycho-social stressors sufficiently severe to cause a significant psychiatric illness. In any event they pale into insignificance when compared to his experiences while working on the pipeline.
11.The Tribunal finds that Mr. Bain’s PTSD was caused by his horrific experiences while working for the Pipeline Authority.
12.Mr. Bain has not sought treatment for his PTSD. He has an understandable reluctance to be involved in treatment which would require him to relive the events which caused his problems. He is also reluctant to use drugs to help his problems. Nevertheless, the opinion of the psychiatrists was to the effect that he could benefit from treatment. Dr. Varghese gave evidence that there are treatment techniques available which do not require a patient to relive their experiences and that Mr. Bain could benefit from them.
13.No psychiatrist was able to predict that Mr. Bain could be cured. In fact it seems that there is no cure for PTSD but the symptoms can be diminished by treatment. There was also a suggestion that Mr. Bain may not respond well to treatment because he has been ill for about ten years and the longer a person goes without treatment, the more difficult it can be to treat.
14.The Tribunal is satisfied that Mr. Bain’s PTSD is a permanent impairment and that it has been permanent since about 1994.
15.In assessing the degree of permanent impairment using Table 5.1 of the Guide, the psychiatrists have ranged from 5% to 20%. The Tribunal takes the view that under the circumstances the evidence of Mr. Bain and his wife Sharon takes on the greatest significance in making this assessment. The Tribunal accepts both Mr. Bain and his wife as truthful, honest and reliable witnesses. In essence their evidence was to the following effect:
(i)Mr. Bain has tried to work but he has difficulty coping with anything that requires effort for more than a few hours straight and he cannot cope with anything that requires him to work on consecutive days.
(ii)Mr. Bain is not a malingerer. He would like nothing more than to be able to return to his work on the pipeline. It was the type of life that he loved.
(iii)Mr. Bain would like to be well again.
(iv)Mr. Bain and Sharon perform as a musical duo. He plays the guitar and she sings. They perform at parties, weddings and other functions. Mr. Bain feels better when he does this activity. They treat it as a form of therapy.
(v)Apart from performing, Mr. Bain does not leave the house very often. He had modified his lifestyle to avoid meeting people and to avoid crowds.
(vi)When the Bains are out with other people at functions such as bar-b-ques, picnics or occasions with friends, Sharon Bain has to watch Mr. Bain carefully. His behaviour can become erratic and inappropriate. Sharon Bain has to take him aside and calm him down, chat to him for a while or, if he is too disturbed, take him home.
16.During the course of his giving evidence, Mr. Bain exhibited quite noticeable signs that he does experience marked disturbances in behaviour. He became agitated and he acted inappropriately.
17.The Tribunal accepts the evidence of Dr. Varghese that Mr. Bain does not have marked disturbances in thinking. He thinks clearly and has a good insight into his problems.
18.The Tribunal accepts the assessment made by Dr. Delaforce who accepted that Mr. Bain does need some supervision and direction, and that he modifies his daily living patterns and has definite disturbances in his behaviour. The Tribunal assesses Mr. Bain’s current impairment, without treatment, at 20% under Table 5.1.
19.The question remains as to what degree Mr. Bain is permanently impaired when the length of his illness and the prospect of improvement by treatment is taken into account. Section 24(2) of the Safety Rehabilitation and Compensation Act 1988 requires the following factors to be taken into account when assessing whether an impairment is permanent:
(i)The duration of the impairment;
(ii)The likelihood of improvement in the employee’s condition;
(iii)Whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(iv)Any other relevant matters.
20.Whilst the Tribunal is sympathetic to Mr. Bain’s attitude towards treatment, it also accepts the evidence of Dr. Varghese that there are treatments for PTSD which do not involve dredging up past stressful events. The Tribunal does not accept that Mr. Bain’s stand against receiving treatment is reasonable.
21.The degree to which Mr. Bain’s PTSD could be diminished is very much a matter of conjecture. Dr. Delaforce thought that because Mr. Bain has been suffering from the problem for ten years or more, he may not benefit much at all. Dr. Varghese thought that his permanent impairment could be reduced to about 5% or less. Dr. Duke thought that Mr. Bain’s lifestyle change from worker at Cobar to semi-retirement at Lismore was all the rehabilitation he needs and he assessed the permanent impairment at 5%.
22.The Tribunal accepts that with appropriate treatment Mr. Bain’s impairment could be reduced to the point where he could lead a reasonably normal life with only minor modifications and with no need to have his wife watching over him. The Tribunal also takes the view that it is probably too optimistic to say that he can be completely cured.
23.The Tribunal assesses the degree of permanent impairment at 10%.
24.The decision under review is set aside.
25.In relation to costs the Tribunal notes that Mr. Bain engaged solicitors during the preliminary stages of this appeal but that he and his wife struggled on valiantly to represent him at the hearing. Dr. Delaforce also attempted to give them some assistance on the second day of the hearing. Neither Mr. Bain, nor his wife nor Dr. Delaforce are to receive any costs in relation to the advocacy side of the presentation of the case during the hearing. The Respondent is to pay the Applicant’s costs according to the General Practice Direction, limited to legal costs and witness expenses.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 19, 20 June 2003
Date of Decision 20 June 2003
Applicant Mr. Bain
Counsel for the Respondent Mr. C. Clark
Solicitor for the Respondent Australian Government Solicitor
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