Bin Tahal and Comcare
[2003] AATA 657
•11 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 657
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/288
GENERAL ADMINISTRATIVE DIVISION ) Re HASSAN BIN TAHAL Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President Don Muller Date11 July 2003
PlaceBrisbane
Decision The Tribunal affirms the decision to refuse the Applicant’s claim for compensation for permanent impairment pursuant to the provisions of the Safety Rehabilitation and Compensation Act 1988.
............SIGNED..................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
WORKERS COMPENSATION – whether permanent impairment – whether refusal to take medication for anxiety disorder reasonable – whether all reasonable rehabilitative treatment has been undertaken
Safety Rehabilitation and Compensation Act 1988: s24
REASONS FOR DECISION
11 July 2003 Deputy President Don Muller 1.This is an application to review a reconsideration dated 9 March 2001 affirming a decision of a delegate of the Respondent, dated 18 January 2001 that the Applicant was not eligible for compensation for whole person permanent impairment pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”).
2.The Applicant claims compensation for a generalised anxiety disorder as a result of his employment as a census officer for ATSIC.
3.The questions for the Tribunal to determine are whether:
(i)The Applicant’s generalised anxiety disorder is a permanent impairment pursuant to section 24(1) of the Act;
(ii)Whether the Applicant’s refusal to take medication is reasonable in the circumstances for the purposes of assessing whether his impairment is permanent, pursuant to subsection 24(2)(c) of the Act; and
(iii)Whether, if the Applicant has a permanent impairment, the degree of permanent impairment is at least 10%.
4.At the hearing the Applicant was represented by Mr. James Sheridan of counsel and the Respondent was represented by Mr. Brendan Kelly of counsel.
5.The Tribunal received evidence from the following sources:
(i)Oral evidence from Hassan Bin Tahal, the Applicant;
(ii)The documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975;
(iii)Report of Dr. Paul Trott, psychiatrist, dated 11 February 2002, Exhibit 2, plus oral evidence from Dr. Trott;
(iv)Report of Dr. Norman Robert Rose, psychiatrist, dated 6 December 2001, exhibit 3;
(v)Report of Dr. Norman Rose dated 20 April 2002, exhibit 4, plus oral evidence from Dr. Rose;
(vi)Bundle of reports from Dr. John Rigano, psychiatrist, dated 28 February 1997, 16 July 1997 and 12 September 1997, exhibit 5;
(vii)Handwritten notes of Dr. John Rigano, exhibit 6.
BACKGROUND
6.The Applicant was born in Brisbane on 19 December 1944. He spent his early childhood in Jakarta, Indonesia. He later moved to Thursday Island where he attended school until he was 15 years old. He speaks both Indonesian and Creole fluently. Whilst living on Thursday Island the Applicant was employed by the State Public Service as a wages clerk and then later as a liaison clerk. He then moved briefly to Cairns where he worked as a carer attendant for alcoholics at Douglas House.
7.The Applicant was married in 1967 for a period of seven years. He had two children by this marriage, a son and a daughter. The Applicant later entered into a defacto relationship and had one more son, who lives in Sydney.
8.The Applicant moved to Canberra when he was 38 years of age where he worked for several government departments before he commenced employment with ATSIC on 7 September 1992. This role was as a census officer. Mr. Bin Tahal’s duties included administering a census of the Aboriginal and Torres Strait Island communities in North Queensland. This position required the Applicant to travel to remote locations in North Queensland.
9.The Applicant gave evidence that whilst travelling to an Aboriginal and Torres Strait Islander community in Woorabindi in 1993 he suffered his first panic attack. He took six weeks leave. In June 1993 he returned to work at ATSIC in Cairns. The Applicant also gave evidence that after 1993 he periodically suffered panic attacks in response to his stressful workplace.
10.Mr. Bin Tahal gave evidence that payments of travel allowances were often delayed at ATSIC requiring him to pay for census trips out of his own money. The poor management at ATSIC delayed decision making regarding the census program. This affected the Applicant’s ability to meet census deadlines.
11.On or about November 1993 the Applicant wrote to five Torres Strait Islander communities where he had not completed a census. As a result of these letters, ATSIC charged the Applicant with failing to carry out his duties. The investigation continued for about nine months and subsequently the Applicant was found guilty of misconduct.
12.On or about 9 September 1994 the Applicant went on sick leave after disciplinary action was taken against him by the Cairns regional manager of ATSIC. The Applicant did not return to work at ATSIC until 3 July 1995 when a return to work program was commenced with the Applicant.
13.This return to work program was not successful and a further program was organised in October 1996. This too was unsuccessful.
14.On 3 October 1994 the Applicant lodged a claim for compensation for anxiety as a result of the stresses he suffered while employed by ATSIC.
15.On 5 December 1994 Comcare advised the Applicant that he was not entitled to compensation for anxiety arising out of a disciplinary action. On 3 October 1995 a formal determination was made by Comcare denying liability for the claim.
16.The Applicant requested a reconsideration of this decision. A further reconsideration was issued on 3 October 1995 affirming the decision to deny liability for the Applicant’s claim.
17.The Applicant applied to the Administrative Appeals tribunal on 13 February 1996. The Administrative Appeals Tribunal affirmed the decision under review and found that the Applicant’s anxiety condition was not contributed in a material degree by his employment but arose out of his dissatisfaction with his employment.
18.The Applicant lodged an appeal to the Federal Court which was subsequently dismissed by consent.
19.On 29 February 2000 Comcare accepted liability for the incapacity for the period 29 August 1994 to 28 January 1995 and for a further period from 10 October 1996 to 8 January 1997.
20.The Applicant submitted a claim for permanent impairment on 8 March 2000. Comcare denied liability on 18 January 2001 on the basis that the Applicant’s impairment did not meet the 10% whole person impairment threshold pursuant to section 24(7) of the Act.
21.The Applicant requested a reconsideration of the determination and Comcare affirmed the determination on 9 March 2001. The Applicant then appealed to the Administrative Appeals Tribunal for a review of the reconsideration dated 9 March 2001.
22.The Applicant gave evidence that his day to day problems are:
(i)He gets excited and has a poor concentration span.
(ii)He has a poor memory.
(iii)His eyes get watery.
(iv)He burps frequently.
(v)He cannot sit in one place for lengthy periods.
(vi)He sometimes gets a tightness in his chest and he gets dizzy spells.
(vii)He sometimes has trouble sleeping.
23.The Applicant is self-sufficient and leads a fairly pleasant life-style. He gave evidence that:
(i)He lives by himself.
(ii)He does his own household chores, cooking, cleaning, ironing and car washing.
(iii)He has learnt Karate from a Japanese instructor.
(iv)He teaches a Karate program to children one hour per day, three days per week. He gets paid for this work.
(v)He was formerly a skilled basketballer. He now coaches basketball for two hours, two days per week.
(vi)He drives his own car.
24.The psychiatrists agree that the Applicant suffers from a mild generalised anxiety disorder. Their assessment of him in terms of Table 5.1 of the official Guide to the Assessment of the Degree of Permanent Impairment varies from a low 5% to a high of 10%.
25.The Applicant has never been treated for his psychiatric condition by any qualified medical practitioner. He prefers to use herbal remedies and other forms of rehabilitation like meditation, Karate and basketball. The Applicant claims that he does not take medications because of his martial arts beliefs and also because of a fear of “side effects”. He admitted that he did not know what side effects he was afraid of.
26.The relevant legislation is contained in the following provisions of the Act.
“Compensation for injuries resulting in permanent impairment
s.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.
….
(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.”
27.There is some dispute between the psychiatrists as to whether the Applicant would benefit from psychiatric treatment, including medication. The opinions range from 80% improvement to very little improvement.
28.There is also dispute between the psychiatrists as to whether medication would produce “side effects”.. The opinions range from no side effects and no dependence on drugs, to an opinion that the Applicant’s fears are not unreasonable.
29.This is not a case where the Applicant is suffering from a mental disorder of such severity that his fear of treatment is due to an irrational mindset. The Applicant has only a very mild psychiatric illness. He will never know whether or not he has any problems with treatment and medication until he tries it.
30.It is the Tribunals’ view that it is unreasonable for the Applicant to not undertake psychiatric treatment by a duly qualified medical practitioner, in the context of this claim for compensation. The Tribunal finds that the Applicant has not undertaken all reasonable rehabilitative treatment for his impairment within the meaning of those terms in s.24(2)(c) of the Act.
31.Consequently, the Tribunal is not satisfied that on the current state of affairs, the Applicant has a permanent impairment due to generalised anxiety disorder.
32.The Tribunal is further satisfied that even if psychiatric treatment improves the Applicant to only a small degree, his degree of permanent impairment will be less than 10% and no compensation will be payable.
33.The decision to refuse the Applicant’s claim for compensation for permanent impairment is affirmed.
I certify that the 33 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 3 March 2003
Date of Decision 11 July 2003
Counsel for the Applicant Mr. J. Sheridan
Solicitor for the Applicant Thompson Royds
Counsel for the Respondent Mr. B. Kelly
Solicitor for the Respondent Phillips Fox
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