Bergersen and Comcare
[2007] AATA 1373
•28 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1373
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos A 200500269 &
GENERAL ADMINISTRATIVE DIVISION ) A 200600132 Re FRANK BERGERSEN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member L Hastwell Date28 May 2007
PlaceCanberra
Decision The Tribunal:
(a) sets aside the first decision under review and substitutes a decision that the applicant suffers a 10 percent impairment under Table 5.1 of the Guide and is entitled to compensation under s 24 of the Safety, Rehabilitation and Compensation Act 1988 (the Act); and
(b) affirms the second decision under review insofar as it found that the applicant had no entitlements under the Act, pursuant to s 16, for ongoing medical treatment...............................................
L HASTWELL
(Senior Member)
CATCHWORDS
COMPENSATION – Commonwealth employees – depression – disease – aggravation major depressive disorder single episode – respondent accepted liability for injury – injury resolved – impairment consequence of injury – degree of impairment – minor loss of personal and social efficiency – fear of recurrence – employment at lower level of responsibility because of fear of recurrence – constant lifestyle vigilance because of fear of recurrence – feelings of vulnerability and diminished self worth – minor distortions of thinking – 10 percent impairment – first decision set aside – entitlement to weekly payments – incapacity – no proven ongoing incapacity for work – medical treatment – episode treated and fully resolved – second decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24
Brennan v Comcare (1994) 50 FCR 555
Canute v Comcare [2005] FCA 299
Re D’Costa and Comcare (2004) 83 ALD 475
Re O’Maley and Comcare (1997) 48 ALD 300
Re Dwight and Comcare [2006] AATA 730
Re Cobern and Comcare [1998] AATA 221REASONS FOR DECISION
28 May 2007 Senior Member L Hastwell 1. Frank Bergersen (the applicant) was employed as an Executive Level 1 by Environment Australia at the time that he suffered the onset of an episode of major depression. This was the fourth episode of significant depression that the applicant had suffered over a period of 20 years.
2. In September 2002 the applicant lodged a claim for compensation for his major depression asserting that it was a workplace injury. The respondent (Comcare) accepted liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) for an aggravation of major depressive disorder, single episode with the date of injury taken to be 6 March 2002. Liability was accepted on 13 January 2004 (T28).
3. On 26 April 2004 the applicant lodged a claim for permanent impairment under s 24 of the Act. Liability was rejected and a reviewable decision rejecting liability for permanent impairment under s 24 of the Act was made on 15 July 2005. The applicant seeks a review of that decision (the first decision) by this Tribunal.
4. On 10 January 2005 Comcare made an initial determination to cease ongoing liability to pay compensation to the applicant in respect of his psychiatric condition pursuant to ss 16 and 19 of the Act. After additional information was provided by the applicant, a determination was made on 18 January 2006 that the applicant had no present entitlement to compensation pursuant to ss 16 and 19 of the Act. A reviewable determination affirming that decision was made on 22 May 2006. The applicant seeks a review of that decision (the second decision) by this Tribunal.
legislation
5. The relevant legislation is contained in the Act.
6. Section 14 provides for the payment of compensation to Commonwealth employees in certain circumstances. Section 14(1) provides:
“14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
7. “Injury” is defined in s 4 of the Act as follows:
“injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
8. “Disease” is defined in s 4 of the Act as follows:
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
9. “Impairment” is defined in s 4 of the Act as follows:
“impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function.”
10. Section 16 of the Act provides for Comcare to pay for the cost of medical treatment in relation to an injury. Section 16(1) provides as follows:
“16(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.”
11. Section 19 of the Act provides for compensation for injuries resulting in incapacity. It provides a formula for weekly compensation during periods that the employee is either unable to work because of the injury or cannot work at the same level that they previously worked because of the injury. Section 19(1) provides:
“19(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.”
12. Section 24 of the Act provides for compensation for injuries resulting in permanent impairment in the following terms:
“24(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.
…”
13. The degree of permanent impairment is assessed by reference to the Guide to the Assessment of the Degree of Permanent Impairment (the Guide). Section 28(4) of the Act provides that when reviewing an assessment of permanent impairment the Tribunal is bound by the Guide. The relevant Table applicable in this case is Table 5.1 which provides for the assessment of psychiatric conditions. The relevant portions of that Table for the purposes of this case are as follows:
% WPI
Description of level of impairment
0
Reactions to stressors of daily living without loss of personal or social efficiency AND capable of performing activities of daily living without supervision or assistance.
5
Despite the presence of ONE of the following is capable of performing activities of daily living without supervision or assistance:
· reactions to stressors of daily living with minor loss of personal or social efficiency;
· lack of conscience directed behaviour without harm to community or self;
· minor distortions of thinking.
10
Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance:
· reactions to stressors of daily living with minor loss of personal or social efficiency;
· lack of conscience directed behaviour without harm to community or self;
· minor distortions of thinking.
15
Any ONE of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stressors of daily living which cause modification of daily patterns;
· marked disturbance in thinking;
· definite disturbance in behaviour.
20
ANY TWO of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stressors of daily living which cause modification of daily living patterns;
· marked disturbance in thinking;
· definite disturbance in behaviour.
issues for consideration
14. The issues to be determined in this case are:
·whether the applicant has a permanent impairment of 10 percent or more arising out of the work related injury from which he has suffered for the purposes of s 24 of the Act;
·what is the level of that impairment as assessed using the tables set out under the Guide;
·whether he was incapacitated for work for the purposes of s 19 of the Act between 18 January 2006 when the original decision to deny liability for ongoing capacity was made, and 22 May 2006 when that decision was confirmed; and
·whether he was entitled to compensation for medical treatment pursuant to s 16 of the Act during the same period.
the hearing
15. The applicant represented himself at the hearing. He did not call witnesses, but relied on material before the Tribunal and in particular the reports of his treating psychiatrist, Dr Lawrence. Comcare was represented by Mr Anthony Reilly. Dr Saboisky, a consultant psychiatrist, gave evidence for Comcare by telephone. The documents filed pursuant to s 37 of the Administrative Appeals Act 1975 in relation to both applications for review were received into evidence as Exhibits R1 and R2. A number of other exhibits were tendered by both parties including further medical reports.
16. The applicant has suffered four major depressions throughout his working life. The first episode occurred when he was 17 years of age. The other three have occurred several years apart since that time with the most recent episode being the one that commenced in March 2002. The applicant considers that all episodes were work related and brought on by work pressures.
17. The applicant is currently employed as a Housing Manager with Housing ACT. At the time of the workplace injury which occurred in March 2002, he was employed as an Executive level 1 with the Commonwealth Department of Environment and Heritage.
18. The applicant attributes the cause of the onset of a fourth episode of major depression to:
“stress build up due to additional pressure of work due to staff changes, changed administrative arrangements and associated chaos and uncertainty, physical workplace relocation, heavy workload associated with workshop requirements and difficulties re less than adequate performance by a new supporting staff member.” (Exhibit R1/T9)
19. The applicant's most recent bout of illness was prolonged and severe. He was significantly unwell from March 2002 until at least April 2003. He made two attempts to return to the workplace in September 2002, but they were not successful due to his continued illness. As a result of electroconvulsive therapy (ECT) in April 2003 the applicant's depressive condition eventually resolved.
20. During his illness the applicant became extremely dependent on his wife who took time off from her employment to provide him with care and support. She took over the management of family and financial issues during the period of his illness and she has maintained that role in the family structure since the applicant's recovery.
21. During the course of his illness the applicant suffered from suicidal ideation and from homicidal ideation at one point. The applicant took a voluntary redundancy package from his employment with the Commonwealth in April 2003.
22. The applicant had recovered sufficiently by November 2003 to commence full-time work with the ACT Government. At the time of the hearing he was a permanent officer of the ACT Government service. He has the position of an Administrative Service Officer grade 5 which is two levels lower than the level he held when he worked with the Commonwealth. His earnings are some $30,000 per year less than he earned when he was employed by the Commonwealth. The applicant is convinced that he could not return to employment at a higher level as he would immediately put himself at risk of a recurrence of the illness.
23. The applicant told the Tribunal that he had not taken medication for depression since November 2003. He no longer sees his psychiatrist, Dr Lawrence, regularly and sees him on two or three occasions the year. In evidence he indicated that he last saw Dr Lawrence 2 months earlier, but subsequently clarified that and said that it was 6 months since he had seen him. He sees him “… pretty much just to check how I’m going and whether I’m managing myself efficiently”.
24. He told the Tribunal that he has developed skills to manage his condition. He manages his managers in the work place and on his own account he is very clear with his superiors about his work boundaries and what he is prepared to do and not to do. He currently manages 270 public housing tenancies. He has learned to prioritise his work to keep pressure off himself. He described himself as managing his stress levels on a daily basis. When a new supervisor is appointed, and he has had about five in the 3½ years that he has been working in his current employment, he provides them with a statement about his illness and the impacts that it has on him as he wants to ensure that he is provided with a safe working environment.
25. The applicant described having “a number of sometimes heated discussions” with supervisors when they want more work “quality and quantity” from him and his response to them is that he is working as much as he can consistent with his health problems. This attitude has put a halt to his career prospects. He said that he “would be quickly ill again if I tried to do all that they require me to do, … there's a whole bunch of stuff that I just don't do, cannot do”.
26. His wife has been significantly affected by the last depressive episode and remains stressed and nervous in her disposition as she fears a relapse of the illness.
27. He has taken up physical activities and he now enjoys activities such as riding his bicycle, going to the gym and bush walking. He now enjoys photography as a hobby and he is a member of the Australian Rugby Choir. He performs at singing engagements every two to three weeks.
28. He is acutely aware of the risk of a reoccurrence of his depression if he puts himself under too much pressure.
29. The applicant has chosen to retire for financial reasons on 16 March 2007 and he is looking forward to his retirement. He fears a recurrence of his illness if he puts himself under too much stress, but his retirement is not related in any direct way to his past history of depressive illness.
30. When asked whether he would take on the financial role in his household upon retirement, he expressed the view that if his wife wished to continue with that role than he would be happy for her to do so. He seemed to have some hesitation about wanting to take on that role again because of perceived potential pressures on him.
31. He now suffers from sexual dysfunction which of concern to him. He is convinced that this was caused by treatment received during his most recent episode of depression and in particular by the ECT and/or the medications that he was required to take. He pointed to two articles (Exhibit A6 and Exhibit A7) as supporting his argument that his sexual dysfunction is directly related to the treatment he received.
32. The applicant was asked about his ability to cope with activities of daily living. He was referred by counsel to the definition of the term as set out in the Guide. His responses were that he required no assistance with standing, moving, feeding, control of bladder and bowel or self-care. The only assistance he requires is with sexual function in that he has used medication to assist him with that problem.
33. The applicant agreed that his health was good at the moment.
34. Dr Saboisky, a psychiatrist, gave evidence to the Tribunal by telephone. There were also a number of his reports in evidence, being his report of 17 December 2004 (Exhibit R1/T51), a report dated 22 February 2006 (Exhibit R4) and a report dated 21 September 2006 (Exhibit R6). Dr Saboisky adopted his reports as part of his evidence.
35. He told the Tribunal had seen the applicant on two occasions. On the first occasion he saw him for one hour in May 2002 to treat him for depression. He subsequently saw him for a psychiatric assessment on 15 December 2004 at the request of Comcare.
36. His position was that the applicant no longer suffered from a depressive illness in that he had made a full recovery, nor did he accept that the sexual dysfunction that the applicant was currently experiencing was related in any way to his prior depressive illness or to treatment received for that illness.
37. He said that even when sexual dysfunction is caused by medication used for depression the sexual function returns once the individual ceases to use the drugs. He knew of no scientific evidence that ECT causes sexual dysfunction. He told the Tribunal that there are many possible causes for sexual dysfunction and the fact that the applicant had developed symptoms while depressed did not necessarily link the sexual dysfunction with the depression or with the treatment received for it. He pointed out that there are many organic causes for sexual dysfunction such as hypertension, diabetes and vascular disease.
38. Dr Saboisky expressed the view that when he examined the applicant in December 2004, the applicant was not depressed, he was not incapacitated for work, he did not have an illness and he said therefore he could not qualify for having impairment.
39. His opinion was that the applicant had suffered an adjustment disorder/depression arising out of the events for which he had been compensated, and he had fully recovered from that disorder by the time that he returned to full-time employment.
40. If asked to provide an impairment assessment he was of the view that the applicant qualified for 5 percent impairment. He expressed the view that everyone qualifies for a 5 percent impairment based on the Guide as all individuals react to the stressors of daily living with minor loss of personal and social efficiency. He did not accept that the applicant suffered from “distortions of thinking” or “a lack of conscience directed behaviour without harm to community or self”. He saw the applicant’s decision to take lesser paid employment as a sensible and rational response to the history of illness that he had suffered.
41. Dr Saboisky went on to say that given the applicant’s medical history, the applicant had an underlying tendency to depression that in is view could only be classified as an illness when it is active. He commented as follows:
“It’s an underlying - we call it a biological diathesis, but it is an underlying biological tendency to depression, and it runs in families. He’s a very good example. … When it stops being active it, it is no longer an illness until he has the next episode. And if people have one episode of severe depression, they will almost certainly have another. …”
42. His reasoning with respect to his assessment of impairment is set out in his report of 27 February 2006 (Exhibit R4):
“I gave him a zero in impairment rating because he did not have a permanent illness. His depression had been effectively treated and there was no evidence when I saw him for Comcare that he was suffering from a major depression. That bout of illness ceased and therefore in my view he cannot be viewed as having a permanent impairment. He was certainly impaired when he was seriously ill and required ECT. Medical treatment had achieved a cure. Like all of us he reacts to stresses of daily living with a minor loss of personal and social efficiency. Under the Guidelines, to have any impairment he needs to have both a permanent illness, and a minor loss of personal and social efficiency. One can clearly have an illness without impairment and one can have impairment without an illness according to the Comcare guidelines.”
43. In a report dated 21 September 2006 Dr Saboisky stated the following:
“The applicant's cognitions which flowed from experiencing a fourth and life threatening depression are quite understandable and not really a distortion of thinking. The applicant feeling vulnerable or being indebted to his family for their support is entirely logical sequel to his illness. They do not appear to be distortions of thinking.
The applicant does not suffer from an illness which is likely to continue indefinitely and therefore he does not have a permanent illness.
The applicant's decision to effectively demote himself was done primarily to prevent a recurrence of a depressive illness and the applicant does not currently suffer from a psychiatric condition and is not incapacitated for work.”
other medical evidence
44. The applicant’s own psychiatrist, Dr Lawrence, did not give evidence but a number of his reports were in evidence as follows:
·28 August 2006 (Exhibit A1)
·2 August 2002 (Exhibit R1/3)
·28 January 2003 (Exhibit R1/33)
·5 April 2004 (Exhibit R1/157)
·5 April 2004 (Exhibit R1/157)
·26 May 2004 (Exhibit R1/180)
·1 May 2005 (Exhibit R1/225)
·19 February 2006
·27 November 2005
45. Dr Lawrence has been the applicant's treating psychiatrist since 1993 when he first treated the applicant for depressive illness. He has had long-standing involvement with the applicant and the applicant's family and has experienced first hand the severity of the applicant's illness and the effects that it has on his family and those that are close to him when his illness is active.
46. Dr Lawrence expressed the view in his report of 19 February 2006 that all four of the severe episodes of depression from which the applicant has suffered were work related. He describes the applicant's illness as a recurring phenomenon.
47. In April 2004, without reference to the Guide, Dr Lawrence had assessed the applicant as suffering from 15 percent impairment arising out of his depressive illness. In May 2005 he assessed the applicant as having an impairment of 10 percent according to Table 5.1 of the Guide.
48. In his report of 27 November 2005, Dr Lawrence says that he sees no evidence of disordered thinking but he is aware that the applicant complains of memory difficulties. He also commented that as a result of the illness the applicant had to some extent relinquished some of his role as a husband to his wife in the hope that this will protect him from a further recurrence of the severe depression he experienced.
49. In his report of August 2006 (Exhibit R2/16) Dr Lawrence expressed the view that the applicant suffered from at least two of the three criteria required to provide 10 percent impairment under Table 5.1. He said that the applicant has:
“A documented history since his depressive episode of not coping well with the everyday non-specific challenges in the workplace. … These everyday challenges have included: dealing with change in the workplace, learning new tasks and workplace conflicts. This impairment has persisted even after adequate treatment of his depression.”
He went on to comment with respect to distortions of thinking in the following terms:
“Since his depressive episode, even when he is stable and well Mr Bergersen has to regularly battle with a range of depressive cognitions. These distortions of thinking usually centre around his preoccupation with feelings of vulnerability to future depression and compelling feelings of indebtedness and obligation to his family and that he must protect himself from becoming ill again. These beliefs oblige him to strenuously protect himself from the stresses of the everyday work situation. Although there is truth to his belief that he should not subject himself to excessive pressure at work, I think this vigilance may itself has become a source of stress. I understand he has had frequent conflicts at work with his supervisors who require a higher and more comprehensive work completion rate and greater accuracy than Mr Bergersen considers he can deliver having regard to his workplace health history and the real danger he faces of further depressive episodes.”
50. There was other medical evidence on the file including medical certificates issued by Dr Lawrence, a report of Dr Chan of February 2007 (Exhibit A8) and a report of Dr Truman of 21 June 1979 (Exhibit R3). Dr Truman's report provided some historical context.
51. Dr Chan, the applicant’s general practitioner, confirmed that the applicant had suffered sexual dysfunction since around June 2003. He commented in that report::
“During the period of his depression, he did have multiple anti-depressant medications and ECT which a known to cause sexual dysfunction as one of the side effects. He did not have any known history of sexual dysfunction prior to the onset of his depression in March 2002.”
submissions and discussion of the evidence
52. The applicant was a straightforward witness. The Tribunal is satisfied that he gave an honest account of how he perceived his health had suffered as a result of the workplace incident and of how it has affected him and his family. He feels that Comcare should compensate him for the losses that he has suffered, both professionally and in terms of the suffering that he and his family have been through as a result of his most recent episode of illness. He remains very fearful and anxious as to the possibility of a recurrence of a further episode of depression
53. The applicant challenges the objectivity of Dr Saboisky and asks that the Tribunal accept the evidence of his own psychiatrist, Dr Lawrence, and of his general practitioner, Dr Chan. He submits that he suffers from a permanent condition and that he has a 15 percent impairment based on Table 5.1 of the Guide. He argues that the depressions themselves, their frequency and the episodic nature of them, combine to create a “condition” from which he suffers.
54. Dr Lawrence has had extensive involvement with the applicant over more than 20 years. He sees the applicant as having a permanent incapacity under the relevant Table. He considers that although this episode has resolved it has left the applicant with a permanent incapacity in the range of 10 percent impairment as assessed under the Guide.
55. Dr Saboisky does not challenge the severity of the applicant's illness when it occurs. He acknowledged that the applicant is likely to suffer a further bout of depressive illness in his lifetime and he acknowledged that the applicant has made sensible life choices to decrease the stress in his life and to minimize, or at least reduce, the likelihood of a recurrence of the illness.
56. The essential difference between the evidence of the two psychiatrists is that Dr Lawrence considers that the applicant has an ongoing permanent impairment and therefore suffers an impairment of 10 percent under the Guide. Dr Saboisky’s view is that the applicant has fully recovered from his illness and therefore has no ongoing impairment. If there was an impairment rating he would put it at 5 percent. Dr Saboisky points to the evidence that the applicant has not needed medication for depressive illness since 2003, has successfully returned to the workforce and on the applicant’s own account he is in good health and enjoying his life at present.
57. Comcare submits that the Tribunal should accept the evidence of Dr Saboisky that the applicant has no ongoing illness and has been in good health since November 2004. Comcare argues that Dr Lawrence has become effectively an advocate for the applicant and that in his most recent reports he is slanting his evidence to fit the applicant’s case.
58. The applicant submits that Dr Lawrence’s evidence should be preferred as Dr Lawrence is the applicant’s treating psychiatrist with a first hand perspective on the applicant’s condition.
59. Overall, the Tribunal considered that both psychiatrists effectively reached the same conclusion, save that Dr Saboisky took the view, that the Tribunal considers erroneous, that the applicant cannot have any impairment because the injury has resolved. The Tribunal prefers the evidence of Dr Lawrence in that regard and also prefers his evidence as to how he currently characterises the mental outlook of the applicant.
findings of fact
60. The applicant has suffered four bouts of major depression throughout his lifetime with the most recent episode commencing in March 2002 and continuing until it was successfully resolved after ECT in April 2003.
61. The applicant suffered an injury in the course of his employment in March 2002 when he suffered a fourth bout of depressive illness.
62. Prior to this bout of illness the applicant held a position as Executive level 1 with Environment Australia. He was a competent and conscientious employee.
63. The applicant took a voluntary redundancy from his employment with the Commonwealth in April 2003. He commenced full-time employment with the ACT Government in November 2003.
64. His job with the ACT Government is at a considerably lower level of pressure and responsibility than his prior employment with the Commonwealth. The applicant has chosen to work at this level.
65. Since November 2003 the applicant has been in good health and he has not been incapacitated for employment at the level at which he chose to return to work.
66. The applicant strongly believes that he is at risk of a recurrence of a depressive illness if he were to return to work at the level at which he was employed prior to March 2002.
67. At the date of hearing the applicant was about to retire from his employment because of his desire to enjoy his various hobbies and because there was a financial advantage to him retiring before he achieved the age of 55 years. His prior history of depressive illness was not the central reason for his retirement.
68. The applicant has not required psychiatric treatment or medication for psychiatric or psychological illness since November 2003. He has occasional “preventative” appointments with his psychiatrist every few months.
69. The applicant considers the workplace to be a dangerous environment for him as he sees it as the sole cause of his depressive episodes. This has lead to him being completely vigilant in the workplace as to the possibility of a further episode of depression occurring. He has had significant conflict with supervisors in his current workplace because of his refusal to carry out required tasks of his employment if he considers it will put him under any pressure at all. This has precluded the possibility of promotion and has resulted in regular conflict with his supervisors.
70. The applicant has some ongoing memory difficulties associated with ECT treatment received during his depressive illness.
71. The applicant has insight into the nature of his prior illnesses and the possibility of a re-occurrence of illness and he employs active strategies to avoid a re-occurrence. These strategies include working at a lesser level of responsibility than he previously worked and spending more time developing interests and hobbies outside the work place.
72. The applicant does not require assistance with the activities of daily living. He would prefer his wife to continue to manage family finances because of his fear of any task that may put pressure on him. His focus is on maintenance of his own health by monitoring his activities on a daily basis.
73. The applicant suffers from sexual dysfunction the onset of which coincided with the period of his most recent depressive illness. Thorough investigations have not been carried out as to the cause of this dysfunction.
consideration and application of the law
74. Comcare has accepted liability for an injury to the applicant, namely an aggravation, single episode, of major depressive disorder. However, Comcare contends that there has been a full resolution of that injury and on that basis contends that there can be no permanent impairment for which compensation can be paid.
75. The applicant contends that he is entitled to ongoing compensation by way of top-up weekly payments under s 19 of the Act for the period of his claim, payment for medical treatment and a payment under s 24 of the Act for the permanent impairment which he says that he continues to suffer as a result of his compensable injury.
76. The Tribunal will deal first with the application for review with respect to the first decision, being the decision to reject the applicant’s claim under s 24 of the Act.
77. The wording of s 24(1) of the Act is unambiguous. Where an injury to an employee results in a permanent impairment, then Comcare is liable to pay compensation with respect to the injury. The succeeding provisions of s 24 determine how that payment is assessed.
78. Although this point was not specifically raised by counsel or the applicant, the Tribunal takes the view that the applicant suffered from an injury that was a disease within the meaning of the Act.
79. “Impairment” is separately defined in the Act as:
“… the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
80. The Tribunal is asked to assess the degree of permanent impairment which has resulted from the injury, namely the aggravation of depressive illness by reference to Part A of the Guide. The Principles of Assessment set out in the Guide refer back to the definition of impairment in the Act and go on to elaborate in the following terms:
“It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality.”
81. To be considered permanent the Principles of Assessment require the following:
“Compensation is only payable for impairments which are permanent. Under subsection 4(1) of the SRC Act ‘permanent’ means ‘likely to continue indefinitely’. Subsection 24(2) of the SRC Act provides that for the purposes of determining whether impairment is permanent, the following matters shall be considered:
(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.
Thus, a loss, loss of the use, damage, or malfunction, will be permanent if it is likely, in some degree, to continue indefinitely. For this purpose, regard shall be had to any medical opinion concerning the nature and effect (including possible effect) of the impairment, and the extent, if any, to which it may reasonably be capable of being reduced or removed.”
82. The Tribunal does not accept the argument put forward by Comcare that because the injury, in this case an episode of severe depression, has fully resolved there can be no ongoing impairment arising from that injury. Because a broken limb has healed does not mean that there cannot be aches, pain and restriction of movement arising from the break. Just as a physical injury need not persist for there to be a residual impairment, psychological injuries can undoubtedly leave a person with a level of impairment, even when the injury resolves. A person may be left with less self confidence or a need to avoid certain situations as a result of an episode of a psychological injury or with feelings of vulnerability and pessimism about the future that in themselves may not amount to a psychological illness, but could nevertheless be classified as an impairment.
83. The Federal Court in Canute v Comcare [2005] FCA 299 when considering s 24 of the Act commented as follows:
“29. As Burchett J pointed out in Brennan v Comcare (1994) 50 FCR 555 at 556,the Act provides for compensation to be paid ‘in respect of the injury’. In Roser, Spender J quotes Burchett J to have said in Brennan, that ‘for a liability to arise there must, in my view, be an injury and it must result in a permanent impairment. A clear cause and effect relationship between the injury and permanent impairment is posited and required.’ While these precise words do not in fact appear in Vol 50 of the Federal Court Reports, what Burchett J is quoted as saying is, with respect, both correct and appropriate.
30. The scheme of the Act is quite clear. Comcare, in reviewing the whole person impairment of an employee (or the Tribunal acting in its place on a review) must first determine whether there has been an injury suffered by that applicant. … If the Tribunal finds there to have been an injury, the next step is to determine what impairment or impairments … result from the injury. …”
84. The Tribunal can see nothing in the legislation or in cases, nor was any case law provided to the Tribunal to support Comcare’s contention that once the injury, in this case a single but life-threatening and lengthy depressive episode, has resolved, there can be no permanent impairment arising from the injury. The consequent impairment may not in itself amount to a depressive illness but it can still be an impairment. If the cause and effect relationship between the injury and the impairment is established and the impairment is permanent then s 24 of the Act provides for compensation.
85. To accept Comcare’s position one would be accepting that there can be no compensation payable to a person who has suffered a psychological as opposed to a physical injury in the work place if the psychological condition has resolved. Dr Saboisky supports Comcare’s position, but his support appears to be based on his own misunderstanding of the Guide. The Tribunal refers to his comments set out in paragraph 42 (supra). He refers to an illness continuing indefinitely and does not appear to discriminate between illness and impairment.
86. The Guide refers to impairment and not illness. The impairment flows from the illness or injury and is a distinct concept. The issue is that of causal effect between an impairment that is likely to continue indefinitely and the compensable injury. In this case liability was accepted for an aggravation of a pre-existing condition. The Tribunal must determine whether the effects of that compensable aggravation gave rise to a permanent impairment or is the impairment from which the applicant now suffers solely attributable to the pre-existing or underlying non-compensable condition.
87. The Tribunal is of the view that as a result of a psychological or psychiatric injury a person can be left with impairments that fall short of being a psychological or psychiatric illness in themselves, but which nevertheless arise directly from the compensable illness. If the cause and effect between the injury and the impairment can be established then the impairment is compensable under the legislation
88. The episode of depression from which the applicant suffered on this occasion was severe and prolonged and life-threatening. It has caused permanent changes in the applicant's relationship with his family. It had a devastating effect on his wife and children. He no longer enjoys the same relationship with his family. Throughout the 15 months of his illness he was strongly suicidal and at one stage homicidal. His self esteem has diminished and his role in his family has changed. He did not anticipate this recurrence of the illness and until this episode he did not appreciate the extent of his own vulnerability to depression. The onset of the illness was sudden, unexpected and frightening for him and his family.
89. Dr Lawrence has observed at first hand the effects this episode of illness has had on the applicant. In his report of August 2006 (Exhibit A1) he expresses the opinion that since this particular episode the applicant:
“Has to regularly battle with a range of depressive cognitions. These distortions of thinking usually centre around his preoccupation with feelings of vulnerability to future depression and compelling feelings of indebtedness and obligation to his family and that he must protect himself from becoming ill again. These beliefs oblige him to strenuously protect himself from the stressors of the every day work situation. Although there is truth to his belief that he should not subject himself to excessive pressure at work, I think his vigilance may itself have become a source of stress. I understand he has had frequent conflicts at work with his supervisors who require a higher and more comprehensive work completion rate and greater accuracy than Mr. Bergersen considers he can deliver having regard to his workplace health history and the real danger he faces of further depressive episodes.”
90. Dr Lawrence's observations are very much in line with the Tribunal's observations of the applicant. The applicant exhibits an almost obsessional focus on protecting himself from pressure in the workplace or in life generally. He believes that putting any pressure on himself will almost inevitably lead him to a further episode of illness. He is so convinced of his position that he has for some time refused to carry out the duties of his employment as required by his superior, thereby creating further conflict for himself in his own workplace and sabotaging any prospects of promotion. He leads his personal life as a one man battle against the recurrence of depressive illness and his life's decisions appear almost entirely focused now on avoidance of further depression.
91. The Tribunal is satisfied, on the balance of probabilities, that this particular depressive illness has caused a level of impairment in the applicant that is ongoing and likely to continue indefinitely. Both of the psychiatrists agree that the applicant suffers from five percent impairment under Table 5.1 of the Guide in that he reacts to stressors of daily living with minor loss of personal or social efficiency. He has a loss of personal and social efficiency that is most directly related to this episode of illness. He no longer works at the level that he worked at for many years. He is no longer a conscientious high achiever within the public sector, but has become a rather difficult employee by all accounts at a lower level of employment. This is a direct reaction by him to the episode of depression for which liability was accepted by Comcare.
92. The applicant was almost 55 years of age at the date of the hearing. The Tribunal accepts, on the balance of probabilities, that this aspect of his impairment will remain unchanged and arises as a direct consequence from the compensable injury.
93. For him to be entitled to compensation under s 24 of the Act, he must have a 10 percent impairment under the relevant table (s 24(7) of the Act). To achieve 10 percent under Table 5.1 of the Guide he must also satisfy the Tribunal that he suffers from either a lack of conscience directed thinking without harm to self or community or minor distortions of thinking in addition to reacting to stressors of daily living with minor loss of personal or social efficiency.
94. The Tribunal had regard to prior decisions as to the meaning of “minor distortions of thinking”.
95. In Canute the Tribunal at first instance found that the applicant suffered from minor distortions of thinking by way of “reduction in concentration and feelings of low self worth”. This finding was not disturbed on appeal.
96. In Re D’Costa and Comcare (2004) 83 ALD 475, the Tribunal found that feelings of “hopelessness” amounted to a minor distortion of thinking.
97. in Re O’Maley and Comcare (1997) 48 ALD 300, the Tribunal found that the applicant’s continued excessive ruminations about his problems amounted to minor distortions of thinking.
98. In Re Dwight and Comcare [2006] AATA 730, Deputy President Hotop commented:
“Having regard to the relevant definitions in the Macquarie Dictionary (4th ed) and The New Shorter Oxford English Dictionary, the Tribunal understands that:
·the phrase “minor distortions of thinking” refers to comparatively unimportant or insignificant perversions of thinking;
…”
99. The Tribunal is satisfied that the applicant does suffer from minor distortions of thinking as a direct consequence of the most recent episode of psychiatric illness. He also suffers from a degree of memory loss. His distortions of thinking include pre-occupation with feelings of vulnerability to future depressions, excessive vigilance about pressure in the workplace such that he creates difficulties for himself in the workplace by refusing to do the quantity and quality of work required of him, and an almost obsessional focus on his own health such that his wife has been left with much greater responsibility for running the house even though her own health has been affected by the husband's last episode of depressive illness. His relationships with his children are not as good as they were and he appeared almost detached from these issues because of his fixation on his own health.
100. The Tribunal is not satisfied that the applicant needs assistance with the tasks of daily living. However, the Tribunal is satisfied that he achieves a 10 percent impairment under the Guide as he suffers from two of the three criteria required under the Table.
101. The Tribunal finds that on the balance of probabilities, and on the basis of expert evidence provided to the Tribunal, there is no proven link between the sexual dysfunction from which the applicant suffers and the injury. The applicant acknowledges himself that he has not had this condition investigated but is convinced the depression was the cause as the onset of this problem coincided with the depression episode.
102. In the circumstances, the Tribunal sets aside the first decision under review and substitutes a decision that the applicant suffers a 10 percent impairment under Table 5.1 of the Guide and is entitled to compensation under s 24 of the Act.
103. The second decision involves a consideration of whether Mr Bergersen is incapacitated for work such that he has an entitlement under s 19 of the Act to any top-up or weekly payments of compensation during the relevant period. Comcare submits that the applicant was in good health and not suffering from depression during the relevant period and has no entitlement to compensation. The Tribunal was referred to an unreported decision of the Tribunal, Re Cobern and Comcare [1998] AATA 221, in which Deputy President Blow commented as follows:
“12. The applicant retired when he did in order to avoid a deterioration in his psychiatric condition, in accordance with the views of Dr. Sale as stated in the paragraph I have quoted. He retired at the time of his 55th birthday, and was thus able to obtain significant superannuation benefits. It was agreed between him and his wife that they would be better off if he retired and she worked as a nurse, thereby releasing him from the stresses of work, and avoiding the likely deterioration in his psychiatric condition that would otherwise have occurred.
…
18. In my view the evidence that I have referred to clearly establishes that, at the time of his retirement, the applicant was neither incapacitated from engaging in any work at all, nor incapacitated from engaging in work at ASO5 level. He was approaching the point where he would become so incapacitated. It was reasonable, even wise, for him to retire early before his psychiatric condition deteriorated to such an extent that he reached that point. But he was still fit for work at ASO5 level when he retired, and therefore was not then incapacitated for the purposes of the Act. It may be that the Act has operated unfairly in this case, given the prudence of the applicant's decision to retire before irretrievable psychiatric damage occurred, but I have no discretion in the matter.”
104. Comcare argues that the applicant’s depression has resolved and that he made a rational decision to return to the workforce and work at a lower level.
105. The applicant in a statutory declaration (Exhibit A6) states that he has been compelled to accept work at a lower level to avoid the possibility of a recurrence of depression. His evidence is that he has elected to take a significant drop in income because of the possibility of a recurrence of depression if he exposes himself to too much workplace pressure.
106. Section 19 of the Act refers to compensation being paid to an employee in certain circumstances when an employee is “incapacitated for work as a result of an injury”.
107. The medical evidence is that the injury had fully resolved by December 2003 when the applicant returned to work. The applicant’s evidence is that he applied for a number of jobs before successfully gaining the position from which he was about to retire at the date of hearing. There is no evidence as to what the positions were that he unsuccessfully applied for. He has a level of impairment arising from the injury, but there is no evidence at all before the Tribunal that he cannot work at his prior level of employment because of this particular injury. He no longer suffers from the incapacitating depression.
108. The depressive episode from which he suffered has led to the applicant electing to work at a certain level of employment because of his desire to have a less stressful life and because of the better insight that he has now gained into his underlying biological condition and potential triggers to that condition.
109. In the circumstances, the Tribunal affirms the second decision under review insofar as it determined that the applicant had no entitlement to weekly payments pursuant to s 19 of the Act during the relevant period.
110. The applicant also seeks compensation for medical expenses under s 16 of the Act. He would like to see his psychiatrist more regularly and says that this is an expense that is consequential upon his injury. Section 16 of the Act refers to the Commonwealth being liable for “the cost of medical treatment obtained in relation to the injury”.
111. The injury from which the applicant suffered is now resolved. He has no need for further treatment with respect to that injury, nor did he have any need during the period to which his claim relates. His desire to continue to see his psychiatrist for “prevention” check ups is not treatment arising from the injury. The applicant’s underlying biological pre-disposition to depression, which is not work-related, is the reason he may wish to continue to have psychiatric check-ups from time to time.
112. The Tribunal affirms the second decision under review insofar as it found that the applicant had no entitlements under the Act, pursuant to s 16, for ongoing medical treatment.
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .....................................................................................
AssociateDates of Hearing 5/6 February 2007
Date of Decision 28 May 2007
Counsel for the Applicant Self represented
Solicitor for the Applicant Self represented
Counsel for the Respondent Anthony Reilly
Solicitor for the Respondent Robert Chin
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