Canute and Comcare
[2004] AATA 627
•21 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 627
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/700
GENERAL ADMINISTRATIVE DIVISION ) Re KENNETH JOHN CANUTE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Dr P D Lynch, Member
Date 21 June 2004
PlaceSydney
Decision The decision under review is affirmed pursuant to section 43 of the Administrative Appeals Tribunal Act 1975
..............................................
Ms S M Bullock
Presiding Member
COMPENSATION – Injuries resulting in permanent impairment – Provision for further payment of compensation for subsequent increase in degree of permanent impairment of employee if increase is 10 per cent or more
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 25, 27
Comcare and Mihajlovic (2000) 97 FCR 304
Comcare v Roser (2003) 127 FCR 155;
Re Laven and Comcare (2003) 76 ALD 253
Comcare v Van Grinsven (2002) FCAFC 87; 68 ALD 87
Comcare v Amorebieta (1996) 66 FCR 83
Martin v Australian Postal Corporation (1999) 29 AAR 420
Power v Comcare (1998) 89 FCR 514REASONS FOR DECISION
21 June 2004 Ms S M Bullock, Senior Member
Dr P D Lynch, Member
1. Mr Kenneth John Canute, the Applicant, was working as a civilian employee with the Department of Defence. Mr Canute claims that during the course of his employment, he suffered injury to his back on two occasions. Mr Canute is claiming whole person impairment, beyond the award which he received by way of a decision made on 9 February 2000 (T9). A determination was made on 29 November 2002, denying Mr Canute’s application for a further lump sum compensation payment (T22). Upon reconsideration on 4 April 2003, the determination was affirmed (T24).
2. Mr Canute has made an application for review to the Administrative Appeals Tribunal (“the Tribunal”). The matter was heard on 19 April 2004, resuming on 20 April 2004. Mr Canute was represented by Mr L Grey of Counsel and the Respondent, Comcare, was represented by Mr G Johnson of Counsel. Mr Canute provided oral evidence to the Tribunal. Evidence was also provided by Dr P Morse, Consultant Psychiatrist and Dr J Champion, Consultant Psychiatrist. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-24) and a number of exhibits, which are listed in Schedule 1 to this decision.
issues
3. At issue in this matter is whether the Applicant has a further entitlement to compensation for whole person impairment beyond that awarded on 9 February 2000 for Mr Canute’s work-related injury to his back, pursuant to sections 24, 25 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). Involved in making a determination in this matter also requires consideration of whether or not there is any psychological sequelae of the work-related injury to Mr Canute’s back.
legislative context
4. A decision in this matter requires the application of the relevant provisions of the Act.
5. Section 24 of the Act refers to compensation for injuries resulting in permanent impairment, and as relevant states that:
“
(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.
For the purposes of this section, the maximum amount is $80,000.”
6. Section 25 of the Act deals with interim payments of compensation and states:
“
(1) Where Comcare:
(a) makes a determination that an employee is suffering from a permanent impairment as a result of an injury; and
(b) is satisfied that the degree of the impairment is equal to or more than 10per cent but has not made a final determination of the degree of impairment;
Comcare shall, on the written request of the employee made at any time before the final determination is made, make an interim determination of the degree of permanent impairment under section 24 and assess an amount of compensation payable to the employee.
(2) The amount assessed by Comcare under subsection (1) shall be an amount that is the same percentage of the maximum amount specified in subsection 24(9) as the percentage determined by Comcare under subsection (1) to be the degree of permanent impairment of the employee.
(3) Where, after an amount of compensation has been paid to an employee following the making of an interim determination, Comcare makes a final determination of the degree of permanent impairment of the employee, there is payable to the employee an amount equal to the difference (if any) between the amount payable under section 24 on the making of the final determination and the amount paid to the employee under this section.
(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10per cent or more.
(5) If Comcare has made a final assessment of the degree of permanent impairment of an employee constituted by a hearing loss, no further amounts of compensation are payable to the employee in respect of a subsequent increase in the hearing loss, unless the subsequent increase in the degree of binaural hearing loss is 5per cent or more.”
7. Section 27 of the Act addresses compensation for non-economic loss and how that is to be calculated.
“
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non‑economic loss suffered by the employee.
(3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non‑economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.”
evidence of mr kenneth canute
8. Mr Kenneth Canute was born on 6 May 1957. Mr Canute is currently unemployed. Mr Canute has completed a six weeks “Parks and Gardens” certificate course through Wollongong TAFE. Mr Canute told the Tribunal that he commenced employment with the Department of Defence in 1995. Mr Canute stated that he worked 32.5 hours per week. Mr Canute described for the Tribunal some of the usual tasks that he would undertake as part of his employment, including being responsible for the general upkeep and maintenance of the 2nd Division Barracks. A typical day for Mr Canute, he reported, involved cleaning the toilets and showers in the morning, as well as vacuuming the offices and hallways. He would also empty the rubbish bins and complete any “odd jobs” that the Officers wanted done. Mr Canute stated that having completed these tasks, he would devote the rest of his day to maintaining the grounds. Mr Canute stated that he was part of a team of four employees, which later dropped back to three when one worker left and was not replaced for approximately eight months. He described his occupation as pleasant and felt that it was suitable employment for him, adding that he would have loved to remain in this type of work.
9. On 19 February 1997, Mr Canute told the Tribunal that he was undertaking the routine duty of vacuuming. The vacuum was of the “back-pack” type and Mr Canute reported that at one point he was bending down and vacuuming stairs. When Mr Canute stood up, he stated that he felt a sharp pain in his back. Mr Canute took three weeks off work. During this time, he stated that he underwent x-rays and received treatment in the form of “Cortisone”, administered orally, and physiotherapy. When asked to describe the location of this injury, Mr Canute said that it was in his lower back and that there was also a “numbness” that travelled down his right leg. At the end of his leave, Mr Canute felt that he was well enough to return to work. Mr Canute told the Tribunal that by the end of 1997, he felt that he had not completely recovered. Mr Canute reported residual problems such as recurrent lower back pain and muscle spasms, but stated that he felt stronger overall, as a result of the physiotherapy that he received.
10. On 7 September 1998, Mr Canute told the Tribunal that he suffered another injury whilst working for the Department of Defence. Mr Canute stated that on this particular day, he was the only staff member from the Maintenance team present. He stated that he normally would not clean the downstairs offices, but had to on this occasion. Mr Canute recalls taking a large bag of rubbish to the car park. This bag, he recalled, contained typical office-type refuse, but was still quite heavy. Mr Canute told the Tribunal that if other Maintenance staff had been there, he would most likely have asked for assistance. Mr Canute stated that he dragged the rubbish bag to the bin and lifted the bag over his head. He stated that when the bag was above his shoulder level, he felt a severe pain in his back.
11. Mr Canute stated that this incident rendered him unfit for work for about the next two years. Mr Canute told the Tribunal that his back injury was treated by Dr L Levy, General Practitioner (T11, T13). and Dr D J Lewington, Rehabilitation Physician (T14). Mr Canute underwent about three or four sessions of physiotherapy after which he reported to Dr Lewington that this did not appear to be helping his condition. Mr Canute recalled that the physiotherapy sessions would make his back feel a bit better for a while, but that he suffered constant pain. Mr Canute recalls being advised, at about this time, that his back condition could be permanent. Mr Canute stated that his constant back pain disturbed his sleep pattern and rendered him unable to undertake many activities. He said that he used to enjoy going for long walks, but now could only walk for about five minutes before his right leg went numb. Mr Canute stated that he also enjoyed playing golf, and did play on the rare occasion in 1998 and 1999, but would have to sit down and rest numerous times on a nine hole course. His back would be painful on those occasions.
12. When asked about the medication he was being treated with, Mr Canute said that during the early stages after the 1998 injury, he would take “Panadeine Forte” but reported that this made him feel “docile, buzzy and slow”. Mr Canute then told the Tribunal that if his pain was severe, then he would smoke marijuana, as he thought it could help him tolerate the pain. He recalled that about six months after the 1998 incident, he would smoke marijuana to assist him in sleeping. Mr Canute generally mixes the marijuana with tobacco that had a marijuana to tobacco ratio of about two to three. Mr Canute said that some weeks, the pain he experiences is severe and he would smoke on about four occasions during the course of the week. Other weeks, if his pain was tolerable, Mr Canute did not smoke any marijuana. In any event, Mr Canute considered that he was not a frequent marijuana smoker. Mr Canute stated that at this point in time, he would never consume alcohol for the sole purpose of alleviating his pain. He said that his alcohol consumption was always “a social thing”.
13. Mr Canute advised the Tribunal that during this period of time following the 1998 injury, he was not actively seeking employment. Mr Canute would occupy himself by visiting the local mall, buying the daily paper and resting his back. Mr Canute stated that his ability to sleep was very poor and that it would be normal for him to have an “afternoon nap”. He told the Tribunal that he felt his life “gradually going down hill” and felt anxious about what was going to happen to him in the future. Mr Canute reported not feeling as enthusiastic about the things that used to interest him such as golf and surfing. Mr Canute stated that he saw himself in a situation where “I couldn’t fight my way out, there was no light at the end of the tunnel.”
14. During 1999, Mr Canute lodged an application for permanent impairment compensation. He told the Tribunal that he did not have legal representation at this time and that he accepted whatever compensation was offered to him. Mr Canute told the Tribunal that it was also in 1999, that Comcare informed him about a “back to work fitness program”. This program was in cooperation with the NSW Leagues Club’s gymnasium. Mr Canute stated that by October 2000, he had commenced light duties work in the office of the Department of Defence. He stated that this involved sorting mail and helping in government stores. Mr Canute told the Tribunal that he was working about four hours per day for the first few weeks and then moved up to six and a half hours per day. Mr Canute remembered that by the end of the day, he would start to limp and feel pain in his right leg. He recalls working for a period of 11 months in this position and had realised by this stage he would just have to “put up with a certain amount of pain”. Whilst working in administration with the Department of Defence, Mr Canute reported that this work lifted him up “100 per cent”.
15. In September 2001, Mr Canute was advised by the Department of Defence that redundancy packages were going to be offered. He was told that accepting such a package would be voluntary but was also advised that in time, his job would no longer exist. Mr Canute chose to take the redundancy package being offered. At this point in time Mr Canute reported feeling frustrated with his employer, wondering why the Department could not look after him as there were many people in its employment who had injuries of some description. Mr Canute also stated that he found out that his previous gardening job was abolished and that contractors were then going to be used. Mr Canute described his emotional state as this time as returning “to the slums, the doldrums” and that he was “wallowing in self pity” and was in a generally depressed state. Mr Canute stated that he attempted to read books, play his guitar and to stay outdoors for at least a couple of hours each day. Mr Canute told the Tribunal that he tried to “battle” his depressed feelings and not lose complete control, in spite of things being “basically pretty bad”.
16. By August 2001, Mr Canute stated that he was quite certain that he was depressed and felt he had to talk to someone about it. Mr Canute visited his general practitioner and asked for a referral to a psychiatrist. Mr Canute was referred to Dr J Menzies, Consultant Psychiatrist, who told Mr Canute that he did not think he required antidepressant medication at that stage, even though Mr Canute specifically mentioned to Dr Menzies that he would be prepared to take it. After about five sessions with Dr Menzies, Mr Canute stated that he felt somewhat better, but was of the opinion that not much could be achieved by talking alone, although it did assist him with “putting things into perspective”. From about December 2001, Mr Canute stated that he did not see Dr Menzies for about another year as he was advised by the doctor that he thought he had done all he could do. When asked about a letter by Dr Menzies to Dr Levy in 2001, stating that Mr Canute no longer wanted to see him because things were all right, Mr Canute said that he recalls cancelling one appointment but stated that he would not have said that he was all right.
17. When asked to describe to the Tribunal what he was doing during 2002, Mr Canute replied that he was basically “down and out”, and that his mood swings became progressively worse. In describing his mood swings, Mr Canute said that he felt that he was more short-tempered than normal and constantly worried about things. He stated that he would suddenly become irritable when, shortly before, he would have been calm and felt in control. Mr Canute did not recall being suicidal but had a “heavy sense of hopelessness”. Mr Canute told the Tribunal that he next saw Dr Menzies in November of 2002. It was his decision to see the doctor, as he wanted to see if there was anything that could be done to help how he was feeling. Dr Menzies again advised Mr Canute that he was still of the opinion that he did not require medication, Mr Canute explained. Mr Canute told the Tribunal that he was managing his pain with “Panadol” and that he recalled Dr Menzies telling him that antidepressant medication would not “offer anything”. Mr Canute stated that when he last saw Dr Menzies, which was for the purpose of writing his most recent report, he asked Dr Menzies whether he would need to see him again. It was Mr Canute’s evidence that Dr Menzies said that at this stage it was not necessary to see him again. Dr Menzies then allegedly asked Mr Canute whether he would be interested in being involved in a clinic where a “group of people sit around and talk about their depression”. Mr Canute stated that he was yet to receive any information about such a group.
18. When Mr Canute was asked about the amounts of marijuana he had allegedly reported consuming to Dr Menzies, he said that he has never smoked marijuana four or five times a day. Before 1995, Mr Canute stated that he may have smoked marijuana two or three times a week, but on an infrequent and spasmodic basis. He stated that he did not abuse any other drug than marijuana. Mr Canute stated that he only smoked during the evenings. Mr Canute can recall quite extended times when he did not smoke at all, he stated. Since 1995, Mr Canute stated that he perhaps smoked marijuana three times a week, adding that he would not smoke an entire joint in one sitting and he only used it to assist him in getting to sleep. Mr Canute stated that he had previously attempted to use marijuana to medicate his pain, but notes that it is not helpful in this way and he uses it now for its calming effect, though he used it for “many reasons” in the past. He further stated that after the 1998 accident, he may have used marijuana four times per week because of his pain and to help promote sleep. Other weeks, he would use marijuana less frequently. Mr Canute’s current marijuana consumption is three “joints” per week, he stated.
19. Later in evidence, Mr Canute told the Tribunal that within the last week, he had smoked one joint of marijuana and that he did not finish it in one sitting. Mr Canute confirmed finishing it later on the same evening when he woke up again and was unable to return to sleep. Mr Canute stated that he experiences constant pain, but varying in degree, and the day that he smoked marijuana it had been “playing up” and knew that he was going to have difficulty getting to sleep. Mr Canute said that his recent pattern of marijuana consumption would be to smoke two and a half, to three and a half joints in one week.
20. Mr Canute told the Tribunal that during 2003, he felt that he was suffering from the same level of depression he had experienced over the past while and noted that he was becoming more and more desperate to find part-time work, to the extent that this was allowed under his compensation benefits. Mr Canute stated that he was able to find a part-time cleaning job, but only lasted two shifts as he could not carry out the tasks that were required of him, such as heavy lifting. Mr Canute was told by this employer that his cleaning was not of a high enough standard and that he would have to improve if he wanted to keep the job. Mr Canute said that he was given a second chance and told of another job that he could do for this particular employer. Mr Canute stated that he did not turn up for the job. Mr Canute explained that he felt very isolated at that point in time and was very “wary” of people in general. He suggested that he may not have done a good job for this reason.
21. Mr Canute stated that about 18 months ago, he was also employed by a friend, to undertake work as a kitchen hand in a small hotel. There was no heavy lifting in this job, but he did have to stand for the duration of the shift. Mr Canute would go to work one or two nights a week and managed to maintain this employment for about three months. When Mr Canute was asked about the Hotel environment being a social one, Mr Canute said that he was not serving people and that he did not consider himself as being in public whilst undertaking this work. He stated that he worked with one other person. It was Mr Canute’s evidence that this employment came to an end because his employer could not afford to pay him any longer. Mr Canute confirmed that he was able to manage this type of work, but did not apply for similar work once his employment with his friend ceased.
22. In reference to his alcohol consumption, Mr Canute stated that he does not go to his local “Hotel” any longer, as he does not want to be around people who are in “good spirits”. When he was working and in his younger years, Mr Canute admitted to drinking alcohol once or twice a week after work in the evenings, with friends. As he became older, Mr Canute stated that he probably drank alcohol more than once or twice a week and would not necessarily only drink during the evenings. Mr Canute stated that in 1995, for example, he would probably have visited the Hotel two or three times during the week and would have had about six schooners of beer each visit. Mr Canute recalls one morning only when he arrived at work feeling “hung over” and was asked to go home. Mr Canute stated that he now feels like a person who has receded from society and he did not want others to see him like he is now. When asked how often he frequents the Hotel, Mr Canute said that he would have gone perhaps three or four times in the last six months to the Coogee Bay Hotel. Mr Canute stated that he has purchased alcohol from the Hotel and taken it home a couple of times, but he usually went to the Hotel to be social, not to get drunk. Mr Canute recalled drinking at home only about three or four times in the past two years. Mr Canute added that he preferred to go out when drinking because the “outing was more enjoyable than the consumption” of alcohol. Later in evidence, Mr Canute stated that he did not consume alcohol every week and on average he would consume four to six schooners of beer in a fortnight.
23. With regard to his activities before his back injuries, Mr Canute said that he used to be an active sports person and was quite fit. He stated that he enjoyed playing rugby league, golf and surfing. Mr Canute stated that he also enjoyed playing the guitar and would play for up to two hours each day. With respect to his social life, Mr Canute’s evidence was that he had a close circle of friends whom he would see once or twice per week. Mr Canute stated that he had had a couple of long term girlfriends in the past and one or two other relationships that did not last very long. Mr Canute remembers being a happier person before suffering his back injury. Whilst he was never “well off”, Mr Canute said that he loved having a job where he could work outdoors and he had close supportive friends and was happy.
24. Mr Canute told the Tribunal that now he is unable to surf and play golf or rugby league. He still enjoys walking but cannot walk for long. He has since purchased a fitness machine and uses it at his home to keep up some level of fitness. Mr Canute stated that he feels that he is overweight because he cannot exercise and recalled weighing less before sustaining an injury to his back. In order to relax, Mr Canute stated that he watches movies and reads. In reference to the activity of reading, Mr Canute said that he still loves to read but loses concentration after a chapter or so, which happens within about 20 minutes. In relation to playing the guitar, Mr Canute said that he will still make attempts to play it, but loses concentration quickly and finds it difficult to maintain the sitting posture needed to play and needs to constantly shift in his seat. Mr Canute stated that he will usually put his guitar away after about 30 minutes. It was Mr Canute’s evidence that he now only has two friends who check in on him occasionally through “general concern”, but he does not go out with them anymore. Mr Canute said that since the accident he has had one relationship, but that lasted for just six or seven weeks, as he found it very difficult to maintain interest.
25. Mr Canute told the Tribunal that he is currently taking medication for his asthma only and ceased taking pain killers for his back injury about six or eight months after the injury. Mr Canute stated that he keeps Panadol and Aspirin handy for the pain and would probably take about 12 during the course of a week.
26. Mr Canute reported that whilst his back pain had “stabilised” it was constant and he would describe the pain as being “quite severe”. Mr Canute has asked, on occasions, for stronger medication for the pain, but was “talked out of it” by his doctor as he was told the stronger medication was addictive. Mr Canute told the Tribunal that he feels as though everything he enjoyed has been taken away from him. When asked about his future, Mr Canute said that he expects to be suffering pain in his back “until the day I die”. Mr Canute doubts that he will ever be able to work again and doubts that he will ever be the “well adjusted person” he once was.
27. With respect to his consultation with Dr J R Champion, Consultant Psychiatrist, in October 2003, Mr Canute stated that he can remember the consultation and recalls Dr Champion “rushing it”. Mr Canute recalled the visit taking just 25 minutes. It was Mr Canute’s evidence that Dr Champion was irritated and hostile towards him. When asked to explain what he meant by “hostile”, Mr Canute stated that for example, he would attempt to answer a question but would be cut short. Mr Canute denied attempting to “colour” the Tribunal’s opinion of Dr Champion and that he was not evasive in answering his questions. Mr Canute reported telling Dr Champion that he consumed marijuana to aide his sleeplessness. Mr Canute denied telling Dr Champion that he consumed two and a half joints every day, adding that he would never be able to afford that amount of marijuana. In discussing the effect marijuana has on him, Mr Canute said that it has “no uplifting effect”. With regard to his alcohol consumption, Mr Canute confirmed that he had told Dr Champion that he had “gone off it” and that it took him longer to “get over it these days”. Mr Canute denied that he still drank in excess of eight to ten schooners of beer.
28. When asked about what he told Dr Champion about his reading habits, Mr Canute said that he enjoyed reading and does not recall reporting to Dr Champion that he has problems with concentrating. Mr Canute told the Tribunal that he did not mention his problems with concentration because he was never asked about it. Mr Canute stated that he was not exaggerating such problems to the Tribunal and stated that reading was not a major pastime of his, but he acknowledged that reading was an enjoyable activity. Mr Canute was questioned about his concentration when driving. He confirmed that he still drove a car and that his concentration was sometimes a problem. Mr Canute was asked about his driving a friend to work and whether this presented any problems for his concentration, Mr Canute answered that the trip took about 20 minutes and was thus not a problem. Mr Canute then stated that if the traffic is congested, it sometimes “becomes too much” and he feels that he has to “get off the road”. Mr Canute confirmed telling Dr Champion that he was a “keen amateur musican” when discussing his playing the guitar. Mr Canute also confirmed that he did not tell Dr Champion that he was unable to play as much. Mr Canute stated that this was because Dr Champion “didn’t give me a chance, he was quite short with me, he cut the consultation short”.
29. In relation to Mr Canute reporting to Dr Champion that he had thought about suicide, Mr Canute said that this was correct, but that it was just a thought he had and did not intend on “doing anything about it”. When asked how often he had experienced such thoughts, Mr Canute said that he cannot specifically recall but that “these things just cross your mind”.
30. In relation to his consultation with Dr R Barr, Consultant Psychiatrist, on 9 September 2002, it was put to Mr Canute that he reported drinking six to eight standard drinks twice a week (T20). In reply to this, Mr Canute said that this was correct, but would not be the case every week. Mr Canute conceded that he may have stated he drank this amount “usually” and that he may have said that he enjoyed reading.
31. Mr Canute’s consultation with Dr P Morse, Consultant Psychiatrist, took place on 31 July 2003. Mr Canute stated that he possibly told Dr Morse that, in relation to his drinking, he had cut right back. When asked whether he told Dr Morse that he did not use any other drugs apart from alcohol, as Dr Morse had reported, Mr Canute stated that he could not recall. Mr Canute stated that he possibly said that because Dr Morse was talking about pain killers. In relation to binge drinking, Mr Canute stated that he would consider consuming more than six to eight schooners of beer as binge drinking. Mr Canute confirmed that previous to 1995, he would have consumed more than six to eight schooners of beer in one sitting and that since that time, would not have consumed that amount.
32. Mr Canute told the Tribunal that Dr Levy has been his General Practitioner since the early 1990’s and that he was the first person he consulted after suffering the first back injury. Dr Levy was Mr Canute’s referring doctor, he stated. Mr Canute stated that Dr Levy did not mention much about Mr Canute’s marijuana consumption and stated that he probably advised Dr Levy of his drug use about two years ago after being asked whether he smoked cigarettes. It was Mr Canute’s evidence that Dr Levy did not ask him about the level of his marijuana consumption and never said anything to Mr Canute about his alcohol consumption. Mr Canute stated that Dr Levy did counsel him about the stress he experienced when he suffered his first back injury because Mr Canute kept experiencing shingles on his forearm, but that he then would tell Dr Menzies about it.
evidence of dr p j morse, consultant psychiatrist
33. Dr Morse provided oral evidence to the Tribunal. The Tribunal had the benefit of two reports from Dr Morse dated 31 July 2003 (Exhibit A5) and 14 April 2004 (Exhibit A6).
34. Dr Morse informed that he had been practising as a psychiatrist for approximately 32 years and relies on the histories given to him to form his assessments. Whilst it is important, Dr Morse stated, to avoid becoming complacent whilst taking someone’s history, other cases come to mind and knowing what questions to ask and what the answers are likely to be in certain people, also come with experience and it is hoped that this experience assists in the diagnosing of those that seek one’s help.
35. In his report dated 31 July 2003 (Exhibit A5), Dr Morse concluded that based on his history and presentation, Mr Canute is “significantly depressed” and that there was sufficient evidence to make a diagnosis of major depression with melancholic features. It is Dr Morse’s opinion that Mr Canute’s emotional state is due to his employment in that it followed on from his injuries and causes continued pain and discomfort; inability to carry out his usual employment; being retrenched and the restriction in activity and financial pressures. Dr Morse considered Mr Canute’s condition to be “presumably permanent”. Dr Morse reported that Mr Canute had a 10 per cent level of impairment due to his psychiatric condition and that this was because he is capable of performing activities of daily living without supervision or assistance. In his subsequent report dated 14 April 2004, Dr Morse commented on Dr Champion’s report dated 5 November 2003. He noted Dr Champion’s report of marijuana usage and further noted that Mr Canute told him that he used “no other drugs”. Dr Morse stated that there was no evidence that marijuana in itself exacerbated or caused an increase in depression, except for perhaps increasing the likelihood of the development of psychotic-like symptoms in vulnerable persons. Dr Morse concluded his report by saying that, in his opinion, Mr Canute would benefit from antidepressant medication.
36. At Hearing Dr Morse stated that his assessment of Mr Canute would have taken just over an hour. Dr Morse reported that Mr Canute was cooperative, but distressed and irritable with the whole proceedings. Dr Morse did not recall that Mr Canute had been resistant in answering questions put to him.
37. Dr Morse stated that when he asked Mr Canute about whether he took “any other drugs”, it was put to Mr Canute as a general and standard question. Dr Morse stated that in vulnerable people, drug use can induce psychoses, however, Mr Canute’s level of consumption of marijuana, even over the long-term was of a “meaningless concentration”. Dr Morse considered that even if Mr Canute consumed two to three joints of marijuana every day, it would not cause depression as such. Dr Morse stated that it was not uncommon, however, for drug use to follow when someone is suffering from depression, anxiety and perhaps pain. When asked whether excessive consumption of alcohol could cause depression, Dr Morse stated that there is no sound evidence one way or the other. In commenting on the relationship alcohol use may have to depression, Dr Morse stated that it varied enormously. He stated that alcohol does not cause depression generally, although it might contribute to experiencing a “low mood”. Dr Morse opined that if a person is depressed, they would be inclined to drink more, although alcohol use, in itself does not cause depression by way of any biochemical link.
38. Dr Morse confirmed to the Tribunal that Mr Canute expressed the feeling that he would be willing to take medication in treating his depression. In relation to Dr Menzies’ comments to Mr Canute that antidepressant medication was unlikely to be of any benefit, Dr Morse took the view that with depression that has been present for such a long time, it would be worthwhile trying, as there would be little chance of it being contraindicated. In some instances, Dr Morse stated, giving a patient antidepressant medication provides them with an excuse to avoid present contributing factors, but in Mr Canute’s case, he would have prescribed it for a trial period. Dr Morse suggested, with some confidence, that Mr Canute’s feelings of anxiety and irritability would improve.
39. When addressing Mr Canute’s suicidal thoughts, Dr Morse stated that such thoughts were “omnipresent” in cases of major depression. Dr Morse recounted two general types, the first being the feeling that life is not worth living and the second being the urge to commit suicide. Dr Morse stated that there is some evidence that suggests only some antidepressants may assist the second type of suicidal thoughts and that most assist with feelings of worthlessness. Dr Morse stated that Mr Canute’s evidence is poor in regard to this particular point. In relation to having suicidal thoughts, Dr Morse gleaned from Mr Canute that he felt that his life was not worth living and that he had thought about suicide on occasions. Dr Morse told the Tribunal that he had asked Mr Canute as to whether he had thought about specific plans to commit suicide and that Mr Canute had stated he had no particular intention to commit suicide but, on occasions, would experience the thought.Dr Morse stated that upon prescribing an antidepressant he would expect some improvement with Mr Canute’s feelings of despair, poor concentration and his cognitive distortions of thinking.
40. It was Dr Morse’s evidence that it is standard practice to ask questions in relation to a patient’s concentration levels. The usual answer in depressed patients, Dr Morse stated, is that they suffer from short-term memory loss. Dr Morse would pose general questions about a person’s reading and television watching habits along with conversations the patient may have with various people. Dr Morse stated that he had not made any specific notes about Mr Canute’s reading habits or guitar playing.
41. In reference to the recommended treatment for Mr Canute, Dr Morse stated that in his opinion, Mr Canute may benefit from continuing to see a psychiatrist and could possibly benefit from antidepressant medication which has an anti-anxiety effect. Dr Morse noted the length of time between the injury and the present and commented that the longer the gap is between the onset of depression and its treatment, the more difficult it is to reverse. Dr Morse stated that with treatment, Mr Canute could expect some improvement in his functioning and a reduction in his irritability and anxiety, but that there may not be any improvement in relation to the depression itself. Mr Canute may experience some improvement in his cognitive state and an improvement to his general well-being, Dr Morse stated. Generally, Dr Morse opined, given the length of time Mr Canute has been experiencing depressive symptoms, and particularly in regard to his physical and cognitive state, and his experience in finding work in the past, there is little probability of a decrease or increase to his current state. Dr Morse did comment that as a person gets older, their affect may become worse. This is not just in terms of treatment of the person’s emotional state, but once someone has suffered one depressive illness, it tends to affect their general feeling of self-worth.
42. When it was put to Dr Morse that he was the only psychiatrist who diagnosed major depression and that the more likely diagnosis would be that of an adjustment disorder, Dr Morse stated that he disagreed. He stated that given the period of time that Mr Canute had been suffering the symptoms described, of despair, a sense of hopelessness and lack of enthusiasm, he did not think that Mr Canute could have an adjustment disorder. If Mr Canute was suffering from an adjustment disorder, his reaction to the state of his life could change from day to day. With Mr Canute, it was apparent that he experienced the described symptoms all the time. Dr Morse stated that it was a possibility that Mr Canute suffered from an adjustment disorder after his injury and that this developed into depression. When Dr Morse was asked to comment on Mr Canute’s improved emotional state upon commencing the administrative position with the Department of Defence in 2000, as provided by Mr Canute in his evidence to the Tribunal, Dr Morse agreed that a diagnosis of depression would not have been valid at that time. Dr Morse also agreed that a prognosis could be more difficult if a patient is abusing alcohol or drugs.
43. When asked to refer to the diagnostic criteria for depression as in a Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, devised by the American Psychiatric Association (”DSM-IV”), Dr Morse stated that he does not strictly follow the suggested time line. Dr Morse stated that if depressive symptoms are still present after, for example, six months, he would not automatically decide that the patient is suffering from major depression. Dr Morse told the Tribunal that he would consider that two years of negative consequences would make major depression more likely than the length of time itself.
44. Mr Morse was asked to consider Dr Champion’s report which stated that Mr Canute’s incapacity for work is related to his substance abuse. Dr Morse opined that whatever level of marijuana Mr Canute was consuming, this did not impact upon his physical work and when he had the office job with the Department of Defence, he worked well. Mr Canute reported having no difficulty in turning up for work. Dr Morse stated that if Mr Canute was abusing marijuana, then it would have had more of an impact on his day to day life. Dr Morse stated that this is the focus in classifying abuse from dependence as opposed to the quantity of drug consumed. Dr Morse stated that people tend to seek professional help when their drug use affects their day to day life. Dr Morse concluded by saying that with Mr Canute, drug use was not a key issue. Dr Morse stated that he would not alter his diagnosis, even after hearing Mr Canute’s evidence to the Tribunal regarding his alcohol and marijuana intake. Dr Morse also considered Mr Canute’s evidence to be consistent, and that the history he collated, did fit with the history that other professionals had obtained from Mr Canute.
45. In relation to Mr Canute’s marijuana usage, Dr Morse was asked to comment on the level of concentration and its possible effects upon his overall diagnosis of Mr Canute. Dr Morse stated that it is never really possible to know the precise level and concentration being consumed and that a user’s tolerance level is not as marked as it is in narcotics. Overall, Dr Morse stated that if Mr Canute was to have smoked two and one half to four joints in a week and the dosage of marijuana to tobacco was of the ratio of two to three, this would not have any impact upon his diagnosis as such usage was of a very low level. When asked to comment on Mr Canute’s level of alcohol consumption, Dr Morse stated that spread over a fortnight, his consumption was not of an abnormal amount. In conclusion, Dr Morse stated that Mr Canute’s level of impairment is likely to remain at 10 per cent.
evidence of dr j r champion, consultant psychiatrist
46. Dr Champion provided oral evidence to the Tribunal. The Tribunal had the benefit of a report from Dr Champion dated 5 November 2003 (Exhibit R1).
47. In his report, Dr Champion noted that Mr Canute did not report any clear symptoms of significant depression, but did display a frustration with the limitations placed upon him by his lower back problem. Dr Champion considered the minor abnormalities in Mr Canute’s presentation was due to his “long standing drug abuse and probably drug dependence continuing through to the present and involving both alcohol and marijuana”. At Hearing Dr Champion conceded that the diagnosis of adjustment disorder with anxious and depressed mood is acceptable, as long as such a diagnosis could be made with an appreciation that Mr Canute had very little, if any, discernible disability. Dr Champion further conceded that Mr Canute’s mental state may have been aggravated by the back injuries he suffered but expected that the impact would have been temporary. Dr Champion did not consider Mr Canute to be suffering an incapacity to work due to his psychological condition, but noted that his back problem would be a restricting factor. Dr Champion concluded by stating that Mr Canute did not have any degree of permanent mental impairment in relation to his physical problems and would consider his drug-related dependency to be less than 5 per cent permanent impairment.
48. Dr Champion examined Mr Canute on 23 October 2003 and stated that the probable length of the interview was one hour and 15 minutes, as this was standard practice, and there was nothing in his notes to indicate the interview was shorter than this. Dr Champion stated that the examination may have seemed much shorter to Mr Canute, but there was definitely about one hour and 10 minutes set aside for the examination. Dr Champion stated that he had no actual recollection of the timing of his interview with Mr Canute, but added that he would have recalled the meeting, had it been significantly shorter than normal. Dr Champion stated that it did concern him that Mr Canute had described him as hostile, but noted that he can be perceived as being “on the other side”. With respect to Mr Canute’s comment about Dr Champion’s “hostile” manner, Dr Champion stated that such a manner is not an acceptable way for a clinician to approach a patient because it will hamper communication and possibly prevent obtaining a detailed history. The aim is always to make the patient as comfortable as possible. Sometimes a clinician may need to move the patient on to another point when sufficient information has been obtained, but certainly not in a hostile way.
49. Dr Champion stated that Mr Canute’s work history, with respect to his marijuana usage, had appeared incident free, although noting that the probability of being “caught out” would depend on the type of work that a person was doing.
50. Dr Champion explained the reference in his report regarding Mr Canute being “evasive” about his alcohol consumption (Exhibit R1, p3). He stated that Mr Canute did not sufficiently answer his questions about his levels of alcohol consumption and that Mr Canute had just said that he had “gone off it”. Mr Canute’s reference to binge drinking was taken by Dr Champion to be in the present tense, albeit occasionally. Dr Champion also took Mr Canute saying that “it takes me much longer to get over it these days”, to also be related to the present situation.
51. Dr Champion was asked to comment on Mr Canute’s evidence that prior to 1995, he would go out once or twice per week and consume six to eight schooners of beer, as compared to his evidence to Dr Morse that he was currently not drinking at all. Dr Champion stated that it was difficult to comment on the history gathered by other clinicians as it is commonly slightly different. Dr Champion stated that it is difficult for people to recall levels of consumption and consumption itself affects the ability to recollect accurately. Nonetheless, Dr Champion stated that in his view, Mr Canute’s history of heavy drinking tends to be underestimated rather than overestimated.
52. Dr Champion was asked about the amount of marijuana he had recorded that Mr Canute consumed on a daily basis, that is, two to two and a half joints every day. Dr Champion confirmed that he had recorded this amount and that he noted Mr Canute had also said that on some days, he does not have any marijuana. It was put to Dr Champion whether he could have made a mistake about Mr Canute’s marijuana usage. Dr Champion stated that this was possible, as were all things, but upon reviewing his clinical notes, he had recorded the amount stated and underlined it.
53. When asked to comment on Mr Canute’s evidence regarding his marijuana consumption for the purpose of aiding sleep, Dr Champion stated that people who take marijuana as self-treatment, usually realise that it does not work when they find it de-motivates them and decreases their ability to manage their affairs. Dr Champion added that psychological distress may cause people to use such substances to this end. Dr Champion conceded that in relation to Mr Canute’s alcohol consumption, his history was not clear. Dr Champion also agreed that if Mr Canute had been drinking heavily whilst employed on a full-time basis, there was a chance it would have been picked up by his supervisors and opined that Mr Canute may have been consuming an amount, during this time that was not of a great enough level amount to bring attention to him.
54. Dr Champion was asked if Mr Canute’s marijuana consumption was as little as he had suggested to the Tribunal, whether it would affect his diagnosis. Dr Champion stated that a decreased consumption would mean that it was less likely that marijuana was “clouding the picture”. Dr Champion stated that marijuana is different from alcohol, in that it does not have a “24 hour turnover”. Dr Champion stated that the active ingredient in marijuana is fat soluble and it can build up reservoirs over time in chronic users. This active ingredient is released slowly from the fat reservoirs and the user will most likely seek to maintain the level of this ingredient in their blood by continuing to smoke. In order to keep up such reserves, Dr Champion stated that smoking as little as two or three times a week could suffice, however it would seem to be more common that this type of user would smoke daily. It all turns on the level of the active ingredient in the blood stream.
55. Considering the period of time that Mr Canute had been off work during 1999 and for most of 2000, Dr Champion opined that Mr Canute had reported suffering from depression during this time. Mr Canute had mentioned to Dr Champion that he suffered from mood swings, that he was not always happy and that he was experiencing problems with sleeping. Dr Champion confirmed that Mr Canute had used the term “depressed”. It was Dr Champion’s impression that previous to his back injury, Mr Canute’s reported state of mind was consistent with someone not feeling depressed. When asked about how Mr Canute’s marijuana usage seemed to be affecting his work at this time, Dr Champion stated that there did not appear to be any difficulty from Mr Canute’s view, although Mr Canute did report that he thought he was, at times, asked to perform work outside of his physical restrictions. When asked whether Mr Canute’s marijuana consumption was not likely to be high as he was able to fulfil his duties, Dr Champion stated that it would depend on the type of duty that Mr Canute was being required to perform and the level of concentration required. Dr Champion conceded that he did not seek any further information in respect to this particular point.
56. Dr Champion was asked about Dr Morse’s comment that the long term effects of marijuana usage would not be productive of depression. Dr Champion stated that he would agree with this statement in general as it seems that major depression is not induced whereas anxiety type disorders are
57. Dr Champion stated that putting aside Mr Canute’s drug and alcohol abuse, he would not consider Mr Canute to be suffering from a psychological condition. To be diagnosed with a psychiatric condition, Dr Champion stated that he would expect a significantly depressed affect; a clear pattern of reported symptoms of depression; bitter complaints with regard to Mr Canute’s loss of ability to read; and for him to have ceased playing his guitar. In relation to Mr Canute’s current social life, Dr Champion stated that he would look to the relationship between his back injury and any psychiatric condition. This was because social withdrawal is just one element of major depression and it is only a holistic view of the person that can determine whether a psychological condition is present.
58. Further commenting on the possible diagnosis of adjustment disorder, Dr Champion stated that since DSM-IV, practitioners do tend to apply this diagnosis to any deviations in mood. Dr Champion stated that while it may be adequate to say that Mr Canute suffers from an adjustment disorder with anxious and depressed mood, he reiterated that it is very mild and that on examination Mr Canute did not present on that occasion with the disorder. Dr Champion stated that he would not attack a diagnosis of adjustment disorder. It was Dr Champion’s evidence that the Applicant, in his opinion, did not suffer from major depression. He said that this was because the axis of symptoms complained of did not suggest its presence and that the symptoms are usually of a more severe type. DSM-IV allows for such adjustment disorder to be chronic, which would make it a more appropriate diagnosis than depression. Dr Champion elaborated by saying that indicia of major depression would include a complete loss of interest; social withdrawal; regular lacking of concentration; complaints of inability to concentrate; complaints of low mood and depressed thoughts. Dr Champion stated that he would not give Mr Canute any rating in relation to a whole person impairment.
59. In relation to Mr Canute’s reading habits and guitar playing, Dr Champion’s history reflected that Mr Canute enjoyed reading, and noted that he usually inquires into such habits, as they serve as good indicators for concentration levels. The history gleaned from Mr Canute, in Dr Champion’s opinion, was relevant to his current situation. Dr Champion stated that those who normally enjoy reading often complain bitterly if they are suffering from depression. Dr Champion further commented that if the depression is mild enough, and the concentration loss is mild enough, one would expect to get through about two chapters in one sitting. Dr Champion stated that it is more common for a person with greater concentration difficulties to be bitterly upset after reading one page, as they cannot recall what they had just read. Dr Champion stated that Mr Canute’s evidence that he read about four or five books in a year, did not suggest a heavy pattern of reading, but for his concentration to be significantly disrupted because of depression, it would be normally be difficult to complete just one book in a year.
60. In relation to Mr Canute’s guitar playing, Dr Champion stated that he did not obtain a detailed history about this from Mr Canute. Dr Champion told the Tribunal that he was told by Mr Canute that he liked playing the guitar and that he did not make a complaint about his ability to concentrate to Dr Champion. Mr Canute did mention to Dr Champion, however, that he had problems with other activities such as golf and swimming. Dr Champion recalls Mr Canute saying that this “frustrated” him. Dr Champion did not question him specifically about any loss of motivation.
61. Dr Champion stated that he did not obtain a specific history of Mr Canute’s social withdrawal. When asked whether this was a significant matter to enquire after, Dr Champion stated that it was, to a degree. Dr Champion did learn that Mr Canute was not currently in a relationship, but did not ask him whether he was actively seeking company. Dr Champion admitted that such an answer could be important to know.
evidence of dr j d menzies, consultant psychiatrist
62. The Tribunal had the benefit of reports by Mr Canute’s treating Psychiatrist, Dr Menzies dated: 18 November 2002 (T21); 23 July 2003 (Exhibit A3) and, 13 April 2004 (Exhibit A4). Dr Menzies first examined Mr Canute on 16 August 2001.
63. In his report, dated 18 November 2002, Dr Menzies diagnosed Mr Canute as having an adjustment disorder with anxiety and depressive features secondary to loss of previous functioning, pain, loss of income, social isolation and feelings of decrepitude, noting that Mr Canute was employed with the Department of Defence at the time of onset of pain and its consequent effects on his health – physical and mental. Dr Menzies assessed Mr Canute’s psychological injury to be in the “5 per cent-10 per cent range” and the psychological injury was solely work-related.
64. In his report of 23 July 2003, Dr Menzies confirmed his diagnosis of adjustment disorder with anxiety and depressive features secondary to loss of previous physical ability and employment status. Dr Menzies did not provide an assessment of impairment at that time because he had not examined Mr Canute recently. Dr Menzies examined Mr Canute on 12 February 2002 and in his report dated 13 April 2004, noted Mr Canute’s situation had remained unchanged and Dr Menzies confirmed a diagnosis of adjustment disorder with anxiety and depressive features.
evidence of dr r gertler, consultant psychiatrist
65. The Tribunal had available to it reports prepared by Dr Gertler dated: 2 May 2002 (T18); 31 July 2003 (Exhibit A1); and, 7 April 2004 (Exhibit A2).
66. Dr Gertler examined Mr Canute on 29 April 2002. He diagnosed Mr Canute as suffering from an adjustment disorder with depressed mood of a mild to moderate severity. Dr Gertler noted Mr Canute’s inability to continue working and his concerns for the future had resulted in lowered self-esteem and self-image, given that he had always worked and lived independently. The adjustment disorder was considered by Dr Gertler to be related to Mr Canute’s employment with the Department of Defence. Dr Gertler at that time did not consider the impairment was permanent given that Mr Canute was looking for employment. He assessed the impairment as less than 10 per cent from the Guide.
67. In his report dated 31 July 2003, Dr Gertler reported that Mr Canute continued to suffer from an adjustment disorder with depressed mood as a result of injuries he sustained at work. The adjustment disorder was now considered by Dr Gertler to be permanent and an impairment rating of 10 per cent considered appropriate, having increased since Dr Gertler first examined Mr Canute. Dr Gertler opined that Mr Canute was not capable of working at that time.
68. Dr Gertler finally reported on 7 April 2004, noting Dr Champion’s report dated 5 November 2003. Dr Gertler opined that the amount of marijuana use reported of “two to two and a half joints each day” was not sufficient to constitute either abuse of dependence. Dr Gertler disagreed with Dr Champion who opined that the combination of the history of regular and significant alcohol and marijuana abuse had taken place given that Mr Canute had ceased using alcohol is significant let alone abusive quantities, and that the use of marijuana was, in Dr Gertler’s opinion, not sufficient to constitute either dependence or abuse. Mr Canute’s range of activities such as reading, or playing a classical guitar, did not suggest the presence of any significant depression. Dr Gertler’s view is that people who are depressed can pursue previous activities and it is only when the depression becomes severe that they are likely to either modify or cease these activities. Dr Gertler therefore disagreed that Mr Canute does suffer from binge drinking and “substantial” marijuana use. Dr Gertler concluded that Mr Canute’s emotional state, namely his chronic low-grade depression, is a function of an adjustment disorder which has developed on the basis of his chronic pain and disability.
consideration and findings
69. The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law. In this matter, we have to determine whether or not Mr Canute has a further entitlement to lump sum compensation for permanent impairment beyond that awarded on 9 February 2000. In order for any further lump sum compensation to be made where Comcare has made a final assessment of the degree of permanent impairment, pursuant to section 25 of the Act, any increase to the whole person impairment must be at least 10 per cent.
70. Mr Canute has a work-related back injury for which he has received an award of lump sum compensation. We have heard evidence from Mr Canute, Dr Morse and Dr Champion which indicates that Mr Canute has a psychiatric illness. Dr Morse has diagnosed major depression and Dr Champion at hearing was prepared to accept that Mr Canute had a psychiatric condition of adjustment disorder with anxious and depressed mood. Both Dr Menzies, the treating psychiatrist and Dr Gertler opine that Mr Canute has an adjustment disorder with anxiety and depressive features or with depressed mood. Dr Champion stated that notwithstanding his concession of the presence of an adjustment disorder, it was very mild and not apparent on his clinical examination of Mr Canute. Dr Champion was also concerned that it was difficult to assess Mr Canute, because of his high marijuana and alcohol consumption confusing the true clinical picture. While it is clear that Mr Canute smokes marijuana and continues to do so, we do not consider it is to the level reported by Dr Champion. When one considers Mr Canute’s evidence, the opinions of other medical experts and Mr Canute’s work history, we are not of the view that Mr Canute’s alcohol consumption has impacted upon his work attendance or performance nor has his marijuana consumption. It is true that Mr Canute’s evidence to the Tribunal and to various doctors who have examined him has been inconsistent at times about his level of marijuana and alcohol consumption. Yet when one considers the totality of Mr Canute’s evidence, combined with his ability financially to support either a significant alcohol or marijuana habit or combination of the two, he simply would not be able to meet the financial requirements particularly of a marijuana habit as reported by Dr Champion.
71. The Tribunal has considered Dr Morse’s diagnosis of major depression and, in doing so, has referred to the DSM IV diagnostic criteria for major depression. We believe that Mr Canute has some of the symptoms of a major depression such as sleep disturbance and fatigue and lack of energy, but we do not consider that he has met the requisite number of symptoms for a diagnosis of major depression to be made It is our view based on our understanding of the available evidence, that on the balance of probability, the correct diagnosis of Mr Canute’s psychiatric condition is that of a chronic adjustment disorder with anxious and depressed mood arising from his work-related back condition. This diagnosis is based on the DSM IV diagnostic criteria and the majority of medical opinion best fits Mr Canute’s symptoms.
72. Considering the medical assessments made by various psychiatrists in relation to Mr Canute’s psychiatric condition, there is some consistency by the majority in assessing an impairment at between five and 10 per cent impairment under Table 5.1 of the Guide. Thus, Dr Morse assessed permanent impairment of 10 per cent, Dr Gertler assessed permanent impairment of 10 per cent and Dr Menzies assessed an impairment of five per cent to 10 per cent. At Hearing, Dr Morse and Dr Champion were informed of the evidence available to the Tribunal in relation to Mr Canute’s alcohol and marijuana consumption and this did not cause them to change their assessments of his degree of permanent impairment. The Tribunal is of the view, given all of the evidence, that a 10 per cent whole person impairment is appropriate, to reflect the degree of impairment for Mr Canute’s adjustment disorder. A level of 10 per cent impairment, in Mr Canute’s case, reflects his capability of performing activities of daily living without supervision or assistance but notes the presence of reaction to stresses of daily living with minor loss of personal or social efficiency, for example, in his social withdrawal and furthermore, Mr Canute has minor distortions of thinking, for example in his reduction in concentration, feelings of low self worth. Thus, we conclude that there is a 10 per cent whole person impairment assessed under Table 5.1 of the Guide for Mr Canute’s adjustment disorder.
73. The issue then becomes how is the impairment to be treated in terms of coming to a whole person impairment for the purposes of assessing any further lump sum compensation payable to Mr Canute. Mr Canute has already been provided with lump sum compensation as a result of his low back condition being assessed as having a 12 per cent whole person impairment (T9).
74. Subsection 25(4) of the Act provides that where Comcare has made a final assessment of the degree of permanent impairment of an employee, which we say occurred on 9 February 2000 (T9), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of permanent impairment, unless the increase is 10 per cent or more.
75. In Mr Canute’s case, it is agreed and we find that he suffered a back injury on 7 September 1998, relating to an aggravation of displacement of an intervertebral disc-lumbar (T5). It is also the Tribunal’s finding that as a result of that physical injury, arising out of the same incident, Mr Canute has suffered an adjustment disorder. Thus, arising out of the same incident, but subsequent to it, one incident giving rise to the physical back injury subsequently gave rise to a psychological sequelae of adjustment disorder. In the matter of Comcare v Mihajlovic (2000) 97 FCR 304, the Respondent suffered multiple impairments from the same incident in 1991 including upper limb function due to right shoulder and arm pain, sciatica and lumbar spondylosis. Finn J found that:
“
In cases of multiple impairment, though each impairment necessarily involves “the loss, the loss of the use, etc….. of any part of the body etc.” (see s4, “Impairment”), the calculation of the percentage degree of permanent impairment of that particular impairment is not an end in itself. It is simply a step to be taken (along with like steps in relation to the employee’s other impairments) under the Tables, to enable (via Table 14.1) a percentage of degree of permanent impairment to be derived for s24 purposes. It is not of itself a percentage for s24(6) purposes. It functions as an element in the method prescribed by the Guide (s28(1)(c)) to express the degree of an employee’s permanent impairment as a percentage. It would, in my view, be quite anomalous in the scheme of the SRC Act, if such a figure having such purpose when nonetheless to operate as a trigger to further compensation (if 10 per cent or more) for s25 (for purposes). The Act neither requires, for the language of the subsection warrants, such a conclusion. The circumstances in Comcare v Mihajlovic (supra) are different to the factual situation in Comcare v Roser [2003] FCA 243 in which Ms Roser injured her knees in 1986 and was compensated with a 20 per cent permanent impairment and then in 1992, Ms Roser injured her back and was assessed as having an impairment of five per cent. Spender J in that case, determined that each work-related injury created a discreet right to compensation because of two different impairments from two different injuries and therefore, there was no requirement to use the Combined Values Table 14.1 of the Guide. Fresh claims the compensation were made on the same day, 30 August 1999 but for separate injuries providing separate impairments. Spender J at page 545 determined that:
“In my opinion, where there are discreet incidents, each resulting in injury or injuries, the Act does not contemplate a single whole person impairment, to be arrived at by considering the combined effect of the separate whole person’s impairment attributable to each sets of injuries.”
76. We agree with Mr Johnson’s submission, that the decision in Comcare v Roser (2003) 127 FCR 155, is not inconsistent with Comcare v Mihajlovic (supra) and note that the facts in each case are distinguishable.
77. In Re Laven v Comcare (2003) 76 ALD 253, Deputy President Handley considered both Comcare v Roser (supra) and Comcare v Mihajlovic (supra). Ms Laven had received lump sum compensation for her right arm and then claimed further compensation in relation to her left arm, a sequelae of the same injury. We agree with Deputy President Handley’s view that Division 4 of Part II of the Act makes it clear that section 24 determinations are final with interim payments in compensation being provided for in subsection 25(1) of the Act. Subsection 25(4) of the Act states clearly that once a final assessment of the degree of permanent impairment of an employee has been made, there can be no further amounts of compensation payable to the employee in respect of a subsequent increase in the degree of impairment unless the increase is 10 per cent or more.
78. Deputy President Handley noted, as asserted by the Respondent in this case, that the issue then is whether Table 14.1 of the Guide is applicable in calculating the increase in the Applicant’s degree of impairment for the purpose of determining whether, pursuant to subsection 25(4) of the Act, compensation is payable to the Applicant in respect of the permanent impairment of Ms Roser’s right arm. Deputy President Handley noted Comcare v Van Grinsven (2002) FCAFC 87; 68 ALD 87 in which the Respondent injured one knee on 17 December 1985 and the other knee on 7 February 1986. Table 9.2 of the Guide was used in that case to assess the loss of function of joints, primarily by reference to loss of range of movement. The Full Federal Court said, in obiter, that had the Respondent’s injury resulted in each of his two ankles losing half their range of movement, each ankle would be assessed separately and their two values would be combined using Table 14.1. Comcare v Van Grinsven (supra), does not greatly assist the Tribunal in determining the case before it, because the use of Table 14.1 when dealing with two joint injuries separately assessed under Table 9.2 of the Guide, is specifically directed by note 4 to Table 9.2.
79. On our consideration of both Comcare v Mihajlovic (supra) and Comcare v Roser (supra), and in agreement with Re Laven and Comcare (supra) in the former case, it is emphasised that the degree of permanent impairment of the employee as a whole is assessed for the purpose of determining the compensation payable in respect of injuries, rather than impairment attributable to specific injuries individually. Accordingly, the application of Table 14.1 of the Guide is intended to give the total effect of all impairments as a percentage value of the employee’s whole bodily system or function. However, in Comcare v Roser (supra), Spender J concluded that where more than one injury is occasioned by an incident, then there are separate and discreet liabilities in respect of each injury. The compensation for each injury should be then assessed by reference to the degree of impairment of the whole body flowing from each injury, which may require consideration of the combined effect of the separate impairments flowing from the same injury. If there are separate incidents leading to discreet injuries, each injury generates a separate liability and there is no obligation to have regard to the combined impairment but rather, to the person having several impairments to the whole person flowing from each injury.
80. In Mr Canute’s case, we conclude that Mr Canute has a permanent impairment of his back and subsequently permanent impairment arising out of the same physical injury but producing a psychological sequelae. Hence multiple impairments arising from the same incident, a physical impairment and a psychological impairment. In such circumstances, we find that in order to assess the whole person impairment of Mr Canute, we must have recourse to the Combined Values Table of 14.1 and as referred to in subsection 28(1)(1) of the Act, in which the Guide sets out criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury should be determined. Thus, a combination of 12 per cent for Canute’s physical back condition combined with 10 per cent for adjustment disorder provides a whole person permanent impairment of 21 per cent. This 21 per cent does not represent a 10 per cent or more increase in permanent impairment and accordingly, we find that no further lump sum compensation is payable to Mr Canute.
81. The Applicant has raised, as an alternate submission, that the assessment of the physical impairment carried out by the delegate was incorrect. In this regard, Mr Grey submitted that the delegate failed to apply the principles in Comcare v Amorebieta (1996) 66 FCR 83 and Martin v Australian Postal Corporation (1999) 29 AAR 420. Mr Grey submitted that there was no impairment before the injury in question. That was clear from Dr Lewington’s report. Thus, there should have been no reduction for any underlying constitutional problem, which the delegate did, reducing the impairment from 24 to 12 per cent. Thus, Mr Grey submitted that for present purposes, the impairment should be treated as it was originally assessed at 24 per cent. If there was an assessment of 10 per cent for adjustment disorder, adding that to 24 percent using Table 14.1, would produce a combined total impairment of 32 per cent. Mr Grey submitted that Mr Canute has been compensated for only 12 per cent. While noting that the current proceedings before the Tribunal do not permit adjustment of the incorrect original calculation of permanent impairment, since that issue is not directly before the Tribunal, Mr Grey submitted that the Tribunal may still take into account the real situation, citing Power v Comcare (1998) 89 FCR 514. Mr Grey further submitted that the Tribunal may take into account that a correct assessment of permanent impairment would lead to a finding of 32 per cent which is more than 10 per cent greater than 12 per cent. In those circumstances, the Applicant would be entitled to payment of the additional 10 per cent he seeks in these proceedings. While noting Mr Grey’s submissions, we distinguish the facts in Power v Comcare (supra) as it was decided well before this case but also was not on point in relation to the application of subsection 25(4) of the Act. In any event, Mr Canute has not made any attempt to have the 12 per cent impairment assessed in the original determination, reconsidered. We also note that even if the Tribunal accepted the argument in relation to Power v Comcare (supra), Mr Canute still would not reach his increase by 10 per cent because there would not have been a 10 per cent impairment from 24 to 32 per cent, the increase in impairment being only eight per cent, which is less than the 10 per cent required by subsection 25(4).
82. In all of the circumstances and for the reasons expressed above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr P D Lynch, Member.
Signed: Linda Blue.........................................................
AssociateDates of Hearing 19 April 2004, 20 April 2004
Date of Decision 21 June 2004
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Mr T Mannah, Carroll and O’Dea, Solicitors
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Mr T Ainsworth, Phillips Fox
schedule 1
list of exhibits
Number
Date
Description
A1
31 July 2003
Report by Dr R Gertler, Consultant Psychiatrist
A2
7 April 2004
Report by Dr R Gertler, Consultant Psychiatrist
A3
23 July 2003
Report by Dr J D Menzies, Consultant Psychiatrist
A4
13 April 2004
Report by J D Menzies, Consultant Psychiatrist
A5
31 July 2003
Report by Dr P Morse, Consultant Psychiatrist
A6
14 April 2004
Report by Dr P Morse, Consultant Psychiatrist
A7
10 January 2000
Report by Dr D J Lewington, Rehabilitation Physician
R1
5 November 2003
Report by Dr J R Champion, Consultant Psychiatrist
R2
Undated
Bundle of Clinical Notes made by Dr J D Menzies, Consultant Psychiatrist
4
9
0