Barnes and Military Rehabilitation and Compensation Commission

[2004] AATA 984

Administrative

Appeals

Tribunal

 

 

DECISION AND REASONS FOR DECISION [2004] AATA 984

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/515

GENERAL ADMINISTRATIVE  DIVISION

Re:         PETER BARNES

Applicant

And:MILITARY REHABILITATION AND

COMPENSATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             21 September 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

COMPENSATION - post-traumatic stress disorder - permanent impairment - whether permanent at 1 December 1988

Commonwealth Employees Compensation Act 1930   s 12

Compensation (Commonwealth Government Employees) Act 1971 s 39

Safety, Rehabilitation and Compensation Act 1988 s 4(1), 24(2), 124(3)

Comcare Australia (Department of Defence) v Maida (2002) 36 AAR 69

Comcare Australia v Mathieson [2004] FCA 212

Filla v Comcare Australia (2001) 115 FCR 144

Johnston v Commonwealth (1982) 150 CLR 331

REASONS FOR DECISION

21 September 2004  G.D. Friedman, Member

1.      This is an application by Peter Barnes (the applicant) for review of a decision of the Military Rehabilitation and Compensation Commission (the respondent) dated 14 April 2003.  The decision affirmed a determination made on 19 July 2002 that denied liability for lump sum compensation for an impairment resulting from the applicant’s condition of post traumatic stress disorder (PTSD).

2.      At the hearing of this matter on 7 May 2004 and 3 September2004 Mr D. De Marchi, solicitor, represented the applicant, and Mr J. Lenczner of counsel represented the respondent.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T32), plus five exhibits (Exhibits A1‑A5) lodged by the applicant. 

BACKGROUND

4.      The applicant was born on 9 June 1948.  From 5 April 1964 to 9 July 1970 he served with the Royal Australian Navy (the navy).

5.      In February 1966 the applicant was injured in a motor vehicle accident and suffered a compression fracture to his L1 spinal vertebra and a fractured left radius.  In June 1969 he was serving on HMAS Melbourne when it collided with USS Frank E. Evans (the collision).On 4 March 2001 the applicant lodged a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of high blood pressure and PTSD symptoms, which he attributed to a high intake of fatty foods and salt and stress, anxiety as a result of Melbourne/Frank E. Evans collision.

6.      In a determination dated 10 January 2002 the respondent accepted liability for PTSD with the date of injury being 12 November 1969.  In a determination dated 19 July 2002 the respondent decided that the applicant had no entitlement to lump sum compensation under s 24 and s 27 of the SRC Act for an impairment resulting from a condition of PTSD because the impairment had become permanent before the commencement of the SRC Act on 1 December 1988 In a reviewable decision dated 14 April 2003 the respondent affirmed the determination.

7.      On 21 May 2003 the applicant lodged an application with the Tribunal for review of the decision dated 14 April 2003.

EVIDENCE

8.      In a written statement dated 19 August 2001 (T11) the applicant said:

I have suffered continuously since the time of the Melbourne/Evans collision with disturbed sleep patterns, nightmares etc.

The magnitude of these disturbances has never really abated.

My wife has endured these episodes with me for over 30 years.  That they are a result of the collision has never been in doubt.   

In a written statement dated 23 September 2001 (T12) the applicant said that the problems had been triggered when he returned to HMAS Melbourne in November 1969.  He stated that these problems, together with his sleepwalking, led to his discharge in July 1970.  The applicant said that he has been taking medication since the early 1980s to help him sleep, and also in the early 1980s he was diagnosed with high blood pressure.  He noted that his weight increased considerably and that he had consumed fatty food and a large amount of salt while serving in the navy.

9.      The applicant stated that he did not seek treatment before 2001 because he was embarrassed and ashamed of his symptoms, and he was unaware that assistance was available.

10.     In a written statement dated 5 August 2003 (Exhibit A1) the applicant referred to his distress following the collision, and said:

5.Until this incident, my alcohol intake was moderate.  When I was on leave I would consume a few glasses of beer only with my mates.

…

7.While in Tasmania I eased off drinking quite a bit, but still continued to drink to excess.

…

9.I am still drinking today.

10.I verily believe that my excessive alcohol consumption was as a way to self medicate for my now accepted condition of post traumatic stress disorder.

11.     In oral evidence the applicant told the Tribunal that after leaving the navy he worked at Melbourne Airport for about 16 years as a radio engineer.  He said that initially he coped, but by the 1970s he felt distressed and depressed, and his nightmares were continuing.  He stated that by 1987 he told his wife that he had had enough, and so they sold their house and moved to Tasmania.  There he found employment in a sawmill and then as a storeman.  The applicant said that by 1997 he felt he could manage, and he and his wife returned to Melbourne, where he obtained his current position as a storeman.

12.     The applicant explained that since resuming life in Melbourne he has deteriorated to the extent that he now feels similar to the way he felt 10 years earlier.  He said that until three years ago he had no idea of the existence of PTSD or the availability of compensation.  In relation to medical treatment, the applicant said that he is taking anti-depressants and sleeping tablets.  He conceded that in Tasmania he began to consume large quantities of alcohol, and now drinks 2 bottles of beer each night, followed by 6 glasses of wine.  The applicant said that he is a member of the Returned Services League, but has no contact with other former HMAS Melbourne personnel.  He stated that he feels guilty that he survived the collision when so many sailors perished or were injured.  He said that he thinks about the collision every day, and has difficulty in concentrating.

13.     Under cross-examination the applicant agreed that in a letter to the Department of Veterans’ Affairs dated 28 January 2002 he referred to hypertension that had been diagnosed in the early 1980s, and stated:

Also at the time I was a very heavy smoker, consuming up to 3 packets of cigarettes a day.  I had smoked continuously since first joining the Navy in 1964.  I quit the habit in 1982, at about the same time that I was diagnosed with hypertension.  My alcohol consumption was also very high.  I was having at least 3 bottles of beer after work & also consuming a fair amount of scotch in the evening.  My weight had also been increasing dramatically.  In 1988 my weight was approximately 120kgs. 

I believe that all these factors were as a result of my PTSD, [without me being aware of this fact at the time].

14.     In a written report dated 18 July 2003 (Exhibit A2) Dr D. Jansen, general practitioner, stated that he has been the applicant’s treating doctor since 1998.  He said:

Mr Barnes has been previously diagnosed with Post Traumatic Stress Disorder (PTSD) and I understand he has an accepted claim with the DVA in relation to this.  It appears that Mr Barnes has been on treatment for this condition and the associated insomnia and somnambulism for at least 15 years.  …

Dr Jansen noted that:

…Since this incident he has been troubled by almost nightly sleep disturbance along with somnambulism, (increasing since the event) and frequent flashbacks and recollections of the event, which one could say he relives.  He experiences daytime irritability, restlessness, and intolerance.  These symptoms have been quite persistent and unrelenting since 1969.

15.     In a written report dated 12 March 2004 (Exhibit A3) Dr Jansen stated that he has continued to review the applicant on a regular basis, and noted that the applicant’s condition has been stable, although in November 2003 the applicant experienced an exacerbation of depressive symptoms and PTSD, so his antidepressant medication was increased, with positive results.  Dr Jansen emphasised that the applicant will require ongoing medical follow-up for the management of the stated medical conditions.

16.     In oral evidence Dr Jansen described the applicant’s current medication.  In cross-examination he agreed that the applicant has suffered from PTSD since 1969.

17.     Mrs M. Barnes, the applicant’s wife, gave oral evidence that she married the applicant in 1971.  She said that until their marriage she had no knowledge of the applicant’s nightmares or sleepwalking, although she was aware of the collision.  She told the Tribunal that the applicant was prone to frequent mood swings and was impatient with their children.  She stated that she and the applicant did not know about PTSD until recently.  Mrs Barnes explained that in about 1988 the applicant’s condition was at its peak, and he was not taking medication.  She said that the more relaxed lifestyle in Tasmania and the less stressful employment as a storeman were helpful, although the applicant continued to consume considerable quantities of alcohol.

18.     In a written report dated 21 May 2002 (T24) Dr A. Webster, occupational physician, stated:

Mr Barnes is a 53-year-old man who has had many years of symptoms consistent with anxiety and Post-traumatic Stress Disorder.  Despite these symptoms he has been able to function in an occupational setting and socially.  He however does have ongoing symptoms which have been present since 1969.  His condition became permanent within a few years of ceasing employment in 1970 and was well entrenched by the time he changed his employment with AWA in 1987.  His impairment in my opinion was permanent by 1972.

In oral evidence Dr Webster said that his assessment was based on ongoing symptoms and continuing impairment.

19.     Under cross-examination Dr Webster agreed that, not being a psychiatrist, he made use of the report from Dr Smith, psychiatrist, and the applicant’s presentation on examination.  Dr Webster emphasised that the applicant’s PTSD was permanent, although he suggested that counselling may assist in managing the condition.

20.     In a written report dated 3o August 2004 (Exhibit A5) Mr M. Burge, psychologist, stated that the applicant has been attending fortnightly counselling since 25 May 2004.  He concluded:

I confirm that through my assessment and psychological treatment of Mr Barnes that I am of the opinion that he is suffering from PTSD and has had this condition since 1969.  In addition I am of the opinion that over the 35 years that Mr Barnes has been suffering from PTSD, his condition on the whole has been unstable.  Moreover, I am of the view that the potential for Mr Barns to develop stability while reducing base line symptoms will be assisted through psychological and psychiatric treatment.   

In oral evidence Mr Burge said that the applicant is in the early stages of treatment and has already shown a slight improvement.  Under cross-examination Mr Burge told the Tribunal that although the applicant has had PTSD symptoms continuously since 1969, there is no indication that he met the diagnostic criteria for PTSD as described in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM‑IV) continuously since 1969, as the symptoms have fluctuated since then, although between 1982 (Falklands conflict) and 1987 (applicant‘s move to Tasmania) the applicant definitely met the criteria.

21.     In a written report dated 13 November 2001 (T15) Dr P. Smith, consultant psychiatrist, stated that the applicant presented with a 30-year history of symptoms of anxiety and that he fulfilled the requisite diagnostic criteria for PTSD.  In oral evidence Dr Smith said he agreed with Dr Webster that the condition became permanent in the early 1970s, and will probably remain chronic because the symptoms are stable and relatively unremitting.  He said that the reports from Dr Jansen and Mr Burge support his findings, because both referred to a long history of symptoms consistent with PTSD, although the symptoms have fluctuated since 1969.  He disagreed with Mr Burge that PTSD had not necessarily been present continuously since 1969 and told the Tribunal that the history given by the applicant, supported by the applicant’s wife, showed that PTSD had been continuous.  He added that the instability mentioned by Mr Burge referred to the symptoms rather than the condition itself.

22.     Under cross-examination Dr Smith agreed that, apart from treatment commenced recently with Mr Burge, to his knowledge the applicant had not received any rehabilitative treatment, and that some form of treatment or therapy would be of assistance.  He said that he maintained his opinion that the condition remains chronic and stable, and has been diagnosed correctly using DSM-IV criteria since the traumatic event in 1969.

CONSIDERATION OF THE ISSUES

23. Transitional arrangements in Part X of the SRC Act relate to injuries sustained before the commencement of the SRC Act on 1 December 1988. Section 124(3) of the SRC Act provides:

124(3)     A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:

(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or

(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

(i)where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;

(ii)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or

(iii)in any other case-under the 1971 Act as in force when the impairment or death occurred.

24. Section 24(2) of the SRC Act provides:

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

any other relevant matters.

In s 4(1) of the SRC Act permanent means likely to continue indefinitely.

25.     Mr De Marchi noted that there was no dispute that the applicant was suffering from PTSD which was service-related.  He said that the respondent was relying on a technical argument to oppose the claim by suggesting that the applicant’s PTSD was permanent before the commencement of the SRC Act on 1 December 1988.  Mr De Marchi said that the applicant’s condition became worse in the 1980s but improved after the applicant and his wife moved to Tasmania in 1987.  He referred to the beneficial nature of the legislation (Johnston v Commonwealth (1982) 150 CLR 331) and stated that the impairment began in 1969 after the collision but did not become permanent until after 1997 when the applicant had returned from Tasmania and had commenced all reasonable treatment.

26. In respect of the factors in s 24(2) of the SRC Act, Mr De Marchi submitted that Dr Smith recommended that the applicant would benefit from psychiatric assessment and treatment, and Dr Jansen has monitored the applicant since 2003. Mr De Marchi stated that the question of permanency of the condition needs to be considered in the light of factors such as employability. Mr De Marchi referred to Filla v Comcare Australia [2001] FCA 964 which, he submitted, directed the decision‑maker to consider reasonable rehabilitative treatment when making a decision on the permanency of a condition. He noted that the applicant has continued full-time employment and is currently undertaking all reasonable treatment with Mr Burge, with a view to a possible resolution of the symptoms. He also put the alternative argument that in view of these factors the Tribunal could conclude that the impairment has not become permanent, so the exclusion contained in s 124(3) of the SRC Act would not apply to the applicant and he should succeed in his claim.

27.     Mr Lenczner submitted that the major issue was whether the impairment became permanent before 1 December 1988.  He referred to Comcare Australia v Mathieson [2004] FCA 212 in which Weinberg J recognised the problems with s 124(3) of the SRC Act:

As with a number of the transitional provisions contained in the 1988 Act, s 124(3) is badly drafted.  The section has caused difficulty ever since it was enacted.  The issue whether an employee suffered a "permanent impairment" prior to, or after, "the commencing date" is pivotal in determining whether a lump sum is payable.  Yet that seemingly straightforward question can sometimes pose real problems.

28. Mr Lenczner stated that the evidence supports the proposition that the applicant’s impairment became permanent before 1 December 1988. He noted the applicant’s written statements, supported by Mrs Noble’s evidence, stated that the applicant has suffered disturbed sleep patterns and nightmares continuously since the collision and these have not abated. Mr Lenczner said that the applicant’s own evidence was that he has suffered from the condition since 1969, despite fluctuations, and that the condition is likely to continue, so it satisfies the definition of permanent in s 4(1) of the SRC Act. He said that the medical evidence strongly supports this proposition.

29. On the question of instability of symptoms as described by Mr Burge, Mr Lenczner said that Mr Burge had explained that the applicant had continued to suffer from PTSD, but that the symptoms had fluctuated. With regard to the factors listed in s 24(2) of the SRC Act, Mr Lenczner submitted that this sub‑section has no relevance to the matter before the Tribunal because the wording is in the present tense, and cannot refer to issues concerning permanency of impairment before 1 December 1988 (Comcare Australia (Department of Defence) v Maida (2002) 36 AAR 69). However, he said that there is uncertainty, and if the factors in s 24(2) of the SRC Act were to be considered, then under s 24(2)(a) the impairment has been in existence for a considerable time, and under s 24(2)(b) there has been little likelihood of improvement in the applicant’s condition until recently. With respect to s 24(2)(c) Mr Lenczner said that as a consequence of the recent counselling and treatment, the applicant has undertaken all reasonable rehabilitative treatment for the impairment.

30.     The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.

31.     The medical evidence regarding the applicant’s PTSD is largely consistent, with Dr Jansen finding that the applicant has suffered from PTSD since 1969 and the condition has continued indefinitely.  Similarly, Dr Webster found that the condition has been present since at least 1972 and is ongoing, while Dr Smith found that the applicant has had the condition since 1975 and it is ongoing.  Mr Burge in his written report dated the condition from 1969, although the Tribunal notes that he sought to qualify his opinion by referring to the instability of the symptoms.

32.     The Tribunal accepts the weight of the medical evidence and agrees with Mr Lenczner that the evidence from the applicant and his wife that the symptoms have been unabated since 1969 supports the view that the applicant has been suffering from PTSD for a considerable period and the Tribunal makes this finding.

33. On the question of whether the impairment is permanent, the Tribunal takes into account the factors listed in s 24(2) of the SRC Act and finds, after considering all relevant matters, that the long duration of the condition, the recent counselling and treatment undertaken by the applicant and the little improvement that has been made to date lead the Tribunal to conclude that the condition is permanent and has been so since before 1 December 1988.

34. For these reasons, the Tribunal finds that s 124(3) of the SRC Act applies. The applicant’s impairment became permanent either during the currency of the Commonwealth Employees Compensation Act 1930 (the 1930 Act) or the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). The impairment compensation provision of the 1930 Act (s 12) does not provide for payment of impairment compensation in respect of psychiatric injury in the Third Schedule Part 2 to that Act. Section 39 of the 1971 Act does not provide for impairment in respect of psychiatric injury.

35.     Therefore, the applicant is not entitled to a lump sum compensation payment in respect of impairment for a psychiatric condition under either the 1930 Act or the 1971 Act, and is not entitled to compensation for permanent impairment under s 24 of the SRC Act.

DECISION

36.     The Tribunal affirms the decision under review.

I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Dates of hearing:  7 May 2004

3 September 2004

Date of decision:  21 September 2004
Advocate for applicant:                Mr D. De Marchi
Solicitor for applicant:                  De Marchi & Associates
Counsel for respondent:              Mr J. Lenczner
Solicitor for respondent:              Sparke Helmore