Cheyne and Comcare
[2003] AATA 811
•19 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 811
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/800; Q2001/124
GENERAL ADMINISTRATIVE DIVISION ) Re RODNEY JOHN CHEYNE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date19 August 2003
PlaceBrisbane
Decision § In relation to file number Q2000/800 (the right thigh cellulitis condition), the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the Tribunal’s reasons for decision.
§ In relation to file number Q2001/124 (depression condition), the Tribunal sets aside the decision under review and in substitution therefor determines that liability for the applicant’s major depressive disorder be accepted.
(Sgd) O Rinaudo
Member
CATCHWORDS
WORKERS’ COMPENSATION – injury to right thigh during course of employment – right thigh cellulitis – incapacity payments – whether applicant has a capacity to undertake remunerative work – suitable employment
WORKERS’ COMPENSATION – major depressive disorder – whether depressive disorder caused by accepted condition of right thigh cellulitis and therefore by his employment, or whether condition arises out of applicant’s experiences in Vietnam during his war service
Safety Rehabilitation and Compensation Act 1988
Veterans’ Entitlements Act 1986
Re Catanzariti and Comcare (AAT 12565, 24 December 1997)
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42
Treloar v Australian Telecommunications Commission (1990) 97 ALR 316
Re Apostolidis and Comcare (AAT No 10431, 30 August 1995)REASONS FOR DECISION
19 August 2003 Mr O Rinaudo, Member Decisions Under Review
1. The applicant seeks review of a decision made on 4 July 2000 that found he was entitled to incapacity payments for the period 1 February 1999 to a date to be determined but that he was otherwise able to earn $450.00 per week in employment.
2. The applicant also seeks review of a decision made by the respondent, as affirmed on 25 January 2001, denying liability for the applicant’s depressive disorder.
Background
3. The applicant was born on 11 June 1942 and is sixty-one years of age. He enlisted in the Australian Army on 1 July 1960 and was discharged on 21 December 1981.
4. On 18 February 1966, the applicant sustained an injury to this right thigh when he was caught between a wall and an armoured personnel carrier. This accident occurred in the course of his employment. Liability to pay compensation for the injury was accepted on 10 May 1966.
5. The applicant served for 9 months in Vietnam during 1971. He returned to Australia, before completing his tour of duty, as a result of cellulitis.
6. The applicant lodged claims for compensation for right thigh cellulitis dated 4 October 1989 and 26 March 1990.
7. On 25 June 1990, liability was accepted for the cellulitis claim resulting from the accepted right thigh injury sustained in 1966. The applicant has been paid compensation for various periods of incapacity.
8. The applicant applied for a lump sum payment for permanent impairment in respect of right thigh cellulitis. On 2 July 1999, the respondent accepted this claim and determined that the applicant had a whole person impairment of 10% as a result of the condition and was entitled to a lump sum payment of $12,171.12
9. On 21 July 1999, the respondent determined that the applicant was not entitled to total incapacity payments with regard to right thigh cellulitis. This decision was made on the basis of the medical report of Dr Lewis, Orthopaedic Specialist, dated 30 April 1999, who was of the opinion that the applicant was not totally incapacitated from employment. Dr Lewis stated that the applicant suffered from attacks of cellulitis approximately once every nine months and that these bouts take two or three weeks to recover from. It was determined that the applicant would be compensated for the periods of incapacity resulting from a bout of cellulitis.
10. On 2 August 1999, the applicant requested a reconsideration of this determination.
11. On 4 July 2000, the respondent revoked the decision of 21 July 1999. The respondent determined that the applicant was entitled to incapacity payments for the period 1 February 1999 to a date to be determined. It also determined that the applicant was able to earn $450.40 per week in suitable employment.
12. On 31 August 2000, the applicant applied to the Administrative Appeals Tribunal to review this decision (see file number Q2000/800).
13. On 22 February 2000, the applicant lodged a claim for rehabilitation and compensation with regard to a major depressive disorder. The applicant alleged he developed this disorder as a result of his right thigh cellulitis condition.
14. Dr Likely, Consultant Psychiatrist, in his report dated 14 April 2000, stated that the applicant suffered from a recurrent and progressively more severe major depressive disorder arising from multiple factors. Most notably to his service days in terms of his right thigh injury and memories of traumatic events in Vietnam. Further, Dr Likely stated that the depressive disorder was complicated by alcohol abuse and likely dependence which seemed to arise from his service in Vietnam.
15. On 10 May 2000, CRS Australia assessed the applicant as being physically suited to a graded return to employment in the sedentary work category. Commencing on restricted hours of 2 hours 3 days per week gradually increasing these hours to an anticipated maximum of 10-20 hours per week. However, CRS noted that the applicant would find it difficult to be competitive on the open job market due to his age, physical limitations, reduced working hours and lack of demonstrated experience in employment other than directly related to his trade.
16. On 26 May 2000, the respondent rejected the applicant’s claim for major depressive disorder on the basis that his depressive disorder was not a result of his right thigh injury. The applicant sought a review of this decision.
17. On 25 January 2001 the respondent affirmed the decision of 26 May 2000. The applicant applied to the Administrative Appeals Tribunal for a review of this decision (see file number Q2001/124).
Issues Before the Tribunal
18. There are two issues for determination by the Tribunal:
§In relation to the right thigh cellulitis condition, whether the respondent, pursuant to section 19(4) Safety Rehabilitation and Compensation Act 1988 (the Act), properly and adequately considered the ability of the applicant to carry out light sedentary work in determining the amount per week the applicant is able to earn in suitable employment; and
§Whether the accident of 1966 resulting in cellulitis, for which the respondent has accepted liability, was the cause of the depressive disorder from which the applicant suffers.
Appearances and Evidence
19. The applicant was represented by Mr D Honchin of Counsel instructed by Mr M Purcell of Purcell Taylor Lawyers. Mr P Bickford of Counsel, instructed by Mr J Bishop of the Australian Government Solicitor, appeared on behalf of the respondent.
20. The following material was tendered and taken into evidence:
Exhibit 1 “T” Documents – Q2000/800
Exhibit 2 “T” Documents – Q2001/124
Exhibit 3 Report of Dr M Likely dated 23 November 2000
Exhibit 4 Report of Dr M Likely to Dr I Fraser dated 19 December 2001
Exhibit 5 Report of Dr J Rogers dated 6 February 2002
Exhibit 6 Report of Dr McEwen dated 18 February 2002
Exhibit 7 Report of Dr Swift dated 17 May 2001
Exhibit 8 Report of Dr Varghese dated 17 September 2002
Exhibit 9 Two photographs of the applicant’s right leg, taken in 1966Exhibit 10 Photograph of the applicant’s cellulitis, taken in 2000
21. In addition to the oral evidence given by the applicant Doctors McEwen, Varghese and Likely also gave evidence.
Applicant’s Evidence
22. Mr Cheyne gave evidence as follows.
23. He enlisted in the Army on 1 July 1960 and was discharged on 21 December 1981. On discharge he held the rank of warrant officer 1st class. Mr Cheyne is qualified as a mechanic.
24. On 18 February 1966, he sustained an injury to his right thigh when the rear corner of an Army vehicle (an armoured personal carrier) pinned him up against a wall crushing his leg. The injuries caused him to pass out. It was only because of the skill of the plastic surgeon that he did not lose his leg at the time. His leg is permanently and severely disfigured.
25. Mr Cheyne gave evidence that he spent seven weeks in hospital and three weeks off duty. He was told that the Army wanted to repatriate him out of the Army. However the Army was his life and he got himself fit such that he regained his FE (fit everywhere) status and in 1971 went to Vietnam.
26. Whilst in Vietnam he suffered three attacks of cellulitis and was eventually evacuated out of Vietnam after nine months. Mr Cheyne said that the doctors injected crystalline penicillin into his leg. He said at first they thought he had malaria and they were changing the bedding three times a day. He said that on the third occasion he was admitted into hospital and sent home.
27. Mr Cheyne said that he then suffered a bout of shingles. After this he was posted to the Army Design Office and was his own boss. His main job was getting quotes.
28. In 1975 he had another accident when the brakes failed on a 25 tonne trailer attached to an American truck. He said that this happens a lot. The rig went over a 100 foot drop. He said that the two occupants, including himself, exited from the truck, and that he landed on his back. A large tool box just missed his head. He was x-rayed and treated for bruising. He said that since 1978 he had bad back pains.
29. Mr Cheyne stated that he has redness in his right lower leg. He said that if he does not get antibiotics he gets severe pain. He said that it is so bad that he can’t even walk to the toilet. He said that over the last ten years he has had about 20 to 30 attacks. He said that Dr Fraser told him that he had to learn to stay off his feet.
30. From 1981 Mr Cheyne owned and operated an automotive business including petrol stations. In 1993 he gave up this business. He sold the business on a lease purchase arrangement but the buyer had “messed it up” and he had lost the business and Mr Cheyne lost substantial monies as a result of which he suffered financial hardship. Mr Cheyne said that he had to give up the business as he was unable to stand for long periods on concrete floors. He said that he feared attacks coming on. They are so painful.
31. Mr Cheyne said that he went on a caravan trip during the Sydney Olympics but spent five days on his back. He had pain and was hospitalised in Innisfail.
32. Mr Cheyne described attacks in 1996 and 1997 when he was in Cairns. He was hospitalised and received injections and was sent home. He said that not one day goes by that he does not fear an attack coming on.
33. Mr Cheyne said that Dr Lewis had stated the attacks were attributable to the accident. He said that he has had 30 or so major attacks over the years. However, a month would not go by when he did not have some form of attack. He said he has lymphobic drainage every Tuesday morning for a one hour session. Since then he has had no major attacks. He said that over the years he had learned to manage the cellulitis. He watches television and keeps his legs up.
34. Mr Cheyne stated he had been told that his drainage system was “shot”.. He said that sitting in the witness box with his leg up helped as it helped to keep his fluid levels up.
35. He stated that he was having antibiotics although he does not take them on a regular basis so that he does not build up a resistance to them.
36. Mr Cheyne said he was suffering depression because of his fear of attacks coming on. He said that his automotive repair business had been successful and he was self-sufficient. He had never asked the Government for anything.
37. Mr Cheyne stated that in 1999 MCRS rejected his claim. He stated that he had 50 or 60 attacks which required treatment and about 40 more that he had managed with self-medication.
38. Mr Cheyne said that between 1993 and 1998 he had been employed installing wheel chair loaders in taxis and certifying vehicle modifications for Queensland Transport. He was also employed marketing traineeships in North Queensland. He said that he had taught at TAFE part-time in 1997 and 1998. He taught LP gas conversions and basic car maintenance. However, he had to withdraw because of his leg. In 1998 he purchased a building to do certification of motor vehicles. However, another attack occurred and he did not start this business.
39. Mr Cheyne said that his emotional state was caused by his major fear of getting attacks. He said they are very painful. He said an attack can come on in five minutes. He said that he takes Panadeine Forte when the pain is severe. He said he had taken one during the break in the hearing that day. He said that usually he needs to take Panadeine Forte on a weekly basis.
40. Mr Cheyne said he would like to work. He said he would like to “carry his weight”. He said has a strong work ethic. He said he is the Treasurer of the Bowls Club which is an unpaid position and he says that he can pick when he goes to work or not. He said he would usually work one hour, two or three days per week. He said that his leg is worse now. He said that he had been bowling for 30 years. He said that he does not show his leg in public.
41. Under cross-examination, Mr Cheyne said that three or four years ago he used to walk half a kilometre to the bowling green and back. He said he does not do this now. He said that he would usually walk three to four times per week.
42. Mr Cheyne said he was either lead or second in bowling and he could then bowl and sit down. Mr Cheyne said that his knee problems had been caused by the accident in 1966.
43. Mr Cheyne said that he does not wear the recommended compression bandage as it is too hot. He said the heat brings on the attacks.
44. Mr Cheyne said that he was qualified in computers since 1983 and was familiar with Microsoft Word Publisher but his typing skills were mainly of the one finger-type. Mr Cheyne said that he had been involved in signing up traineeships and had been the most successful in Australia. He said that it was only after his territory was to be extended to Rockhampton that he did not think he could do it.
45. Mr Cheyne said that in 1986-1993 he had up to 38 employees, but in 1993 he had sold the stations and started to work from home converting vehicles for wheel chair loading. He said it was not profitable (he had only received about five jobs in a year) and he ceased this in 1998. He said he has not worked since 1998. In early 1999 he said he tried out for 15 jobs in a three month period but he has not looked for work or worked since then.
46. Mr Cheyne said that he has depression and has feelings of hopelessness all the time. He said he has flashbacks to an APC accident when a crew of 11 were killed.
47. He said that he was feeling alright the day he saw Dr Swift but was depressed when he saw Dr Varghese. He had not been happy to go to Brisbane.
48. Mr Cheyne said that he had been drinking before and during his tour in Vietnam. He said after the war he did not drink much but when he is depressed he drinks. He said he tries to manage his drinking. He limits himself to about half a dozen stubbies. However, he said if his mood is low then he turns to alcohol.
49. Mr Cheyne said he drives his car every day. But said that he has to stop for breaks regularly, the breaks lasting for a couple of hours before recommencing his journey. He drives to bowls tournaments three to four times per year. He said he can drive the 1 hour and 20 minutes to Charters Towers. He said he has to keep off his feet and take the tablets for about three days.
50. Dr McEwan gave evidence and said that bacteria causes the problem in Mr Cheyne’s leg. He stated that one form of bacteria causes onset quicker than others. He acknowledged that the compression bandage was very hot in summer in North Queensland.
51. Dr Varghese gave oral evidence to the Tribunal. He said that Mr Cheyne appears to be suffering from recurrent major depression. He said that he also suffers from alcohol abuse, either secondary or contributory. He said that Mr Cheyne has a chronic illness. He suffers from chronic dysthemia “and mild depression”. He said he was uncertain if there is current alcohol dependence. He said there was no major reason why Mr Cheyne could not work. He said that he could not say when the major depression started. He said it may have been in 1985 but was less severe then than now. He said the major trigger of the depression was the chronic physical illness and financial concerns.
52. Dr Varghese said the impact of the disability was getting worse as Mr Cheyne got older. He said that he has a chronic physical illness which on its own would be more likely to lead to chronic dysthemia but he does not consider this would affect his ability to work.
53. Dr Varghese said that the applicant’s Vietnam service may have caused his post traumatic stress disorder. He said that the applicant’s cellulitis flares up in tropical areas although he said that Mr Cheyne was functioning quite well when he saw him.
54. Dr Likely also gave oral evidence to the Tribunal. He said he had been treating Mr Cheyne since 1998. He said that Mr Cheyne’s illness was becoming more severe. He said this was probably because his injury was becoming more resistant to treatment. He said Mr Cheyne could not work because of his depressive disorder. He said the cellulitis and the depression “go together”. Dr Likely said he considered that both the accident and the Vietnam experience would have triggered the onset of depression. He said he considered Mr Cheyne to have a constitutional pre-disposition to depression. He said Mr Cheyne presented as a man who found it extremely difficult to deal with the symptoms of his chronic physical illness. Dr Likely said that it was a serious injury and for a while Mr Cheyne was told he would the lose the leg and, even though he kept the leg, “it is a mess”.
55. Dr Likely said he was treating Mr Cheyne with Zolof 100 mgs per day. He said this was an effective drug but does not always work. He said that the cellulitis will sometimes break through. He said Mr Cheyne was not working because he told him, as his treating doctor, not to work. He said in his view it would be detrimental to him and may lead to further stress.
Consideration of the Medical Evidence
56. Mr Cheyne’s treating doctor, Dr Likely has provided a number of reports. In his report dated 30 March 1998 (T8 p 26), Dr Likely notes:
“My impression is that Mr Cheyne has been suffering from a recurrent and progressively more severe major depressive disorder. This has arisen as a result of multiple stressors, notably related to his service days in terms of his right leg injuries and memories of traumatic events in Vietnam. He does not fulfil the criteria for post traumatic stress disorder in that he does not fulfil Criterion A, although clearly his traumatic experiences have had a negative impact on his mental health. His major depressive disorder is complicated by alcohol abuse and likely dependence. This seems to have arisen at the time of his service in Vietnam.”
57. In his report dated 23 November 2000 (Exhibit 3), Dr Likely summarises his findings as follows:
“…I believe that Mr Cheyne fulfils the DSM IV diagnostic criteria for major depressive disorder which arose in approximately 1985 and was largely determined by his chronic cellulitis and for alcohol abuse which arose at the time of his Vietnam service.”
58. Dr Likely provided a further report on 19 December 2001 in which he notes:
“…I once again reiterate that i8t is my unequivocal opinion that Mr Cheyne is suffering from major depressive disorder which I believe arose as a result of service related traumata, namely his accident involving a crush injury as a result of being struck by an armoured personnel carrier and his traumatic experiences in Vietnam, in particular the sight of an armoured personnel carrier which had been struck by a rocket propelled grenade and in which nine people had died. The carrier was clearly severely damaged and had not been cleaned. I believe that this constitutes a severe stressor and is defined in DSM-IV.
I note that Mr Cheyne has been treated with Disulfiram for his alcohol dependence and he has always struck me as a man who is genuinely distressed by his symptoms and who has made very effort to improve. I feel that the stress of his dealing with the MCRS is unnecessarily prolonging his mental ill health….”
59. Mr Cheyne was reviewed by Dr McEwan, Orthopaedic Surgeon at the request of the applicant’s solicitors. Dr McEwan provided a report dated 18 February 2002 (Exhibit 6) and notes in paragraph 4 of the Summary and Assessment section of his report:
“4.Avoidance of cellulitis is dependent upon optimal treatment of the chronic lymphoedema. This involves lymphatic drainage therapy, compression bandages and limitation of duration of the dependency of the right lower limb. Mr Cheyne has found over the years of living with his condition that to optomise the lymphoedema and avoid cellulitis he requires two hours with his right lower limb elevated for every two hours the leg is dependent.”
and further at paragraph 6:
“6.…This requires that his limb not be dependant for longer than two or three hours at any one time and that following a period of dependency a period of elevation of equal duration be available. If considering these requirements for optimal treatment of the chronic lymphoedema, I consider it impossible for Mr Cheyne to be employed in a full time occupation without predisposing him to more frequent and severe episodes of recurrent cellulitis.”
60. The applicant was examined by Dr Varghese, Consultant Psychiatrist who reported on 17 September 2002 (Exhibit 8). Dr Varghese saw the applicant on 28 June 2002. In his conclusions, Dr Varghese notes at paragraph 2 on page 9:
“2.I do not believe that Mr Cheyne’s experiences in Vietnam contributed in any meaningful way to his subsequent psychiatric difficulties. He was not involved in combat and does not appear to have been exposed to any traumatic circumstances sufficient to bring about mental disorder although it is clear that he suffered significant cellulitis and this necessitated his evacuation from the war zone. He does not have PTSD and if his claim before Comcare has been rejected on the grounds that he has PTSD from the Vietnam War I consider this is incorrect and to Mr Cheyne’s disadvantage.
3.…There is certainly no current mental state evidence of major depression. Thus Me Cheyne can be said to have so called ‘double depression’ meaning that he has recurrent episodes of major depression grafted onto chronic dysthymia.
4.A complicating major factor is the role of alcohol. It seems that there has been alcohol abuse for several years with possible eventual development of alcohol dependence although this is not clear. The alcohol issues do not seem to be symptomatic of underlying mood disorder but is a significant contributing factors to the mood disorder. Ceasing his alcohol use would significantly improve his psychiatric health.”
61. In response to a question posed by the respondent’s solicitors, “Does this condition prevent him from engaging in gainful employment and, if so, please provide particulars?, If Mr Cheyne is able to engage in gainful employment, what restrictions, if any, should be imposed on his capacity to work?”, Dr Varghese has opined that:
“His current level of dysthymia should improve with moderating or preferably ceasing of his alcohol abuse and in any case is not of such intensity of itself to prevent him working. If he were to have a recurrence of major depression then during the period of an episode his capacity to work would be impaired. However the chances of him getting another episode of depression would be greatly reduced if he abstained from alcohol and continued with antidepressants. Moreover each depressive episode could be treated with antidepressants effectively provided there is no alcohol abuse.”
62. The Tribunal considered that Dr Varghese’s report was not of as much assistance as the reports of Dr Likely in respect of the applicant’s mental condition. The Tribunal is satisfied, on balance, that the applicant does suffer from major depressive disorder which has been brought about as a result of the 1966 accident, his service in Vietnam and alcohol abuse.
Consideration
Right Thigh Cellulitis
63. Matters relating to compensation are set out in Part II of the Act. Sections 14 and 19 of the Act relevantly provide:
“Section 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. …
Section 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.
(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount under the formula:
NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:
(a)where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment; …
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment - the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition - the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment - the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee - whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare] opinion, reasonable in all the circumstances; and
(g)any other matter that [the Tribunal] considers relevant.”
64. In this case, the applicant was a self-employed mechanic between 1981 and 1993. Between 1993 and 1998 the applicant worked part-time installing wheelchair loaders in taxis and certifying vehicle modifications for Queensland Transport. The applicant was employed full-time by the Australian Training Authority, marketing traineeships to businesses in North Queensland. The applicant ceased work in December 1998.
65. Sub-section 4(1) of the Act defines the term “suitable employment”, in relation to an employee who has suffered an injury in respect of which compensation is payable under the Act, to mean:
“(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence - whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter; and
(b) in any other case - any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv).”
66. Whether a person is capable of carrying on suitable employment is to be determined on a case by case basis. However, the case of Re Catanzariti and Comcare (AAT 12565, 24 December 1997) provides a useful discussion of factors (i) and (ii) in section 4(1)(a). The Tribunal stated at paragraph 62:
“In our application of this provision, we have taken into account that when he retired, the applicant wished to work part-time as a gardener but due to the deterioration of his knee, he was unable to do so. At the commencement of the relevant period on 31 August 1995, the applicant was 63, with a primary level education in Italy. English is not his first language. His skills lie mainly in the area of the job which he did for 42 years. As a result of the condition of his right knee, he cannot stand, walk or drive for very long. He would therefore have had in this period great difficulty in carrying out manual tasks. Given his education and work experience, we think it unreal to suppose that he could have carried out clerical or sales assistance work. Neither party sought to adduce evidence relevant to the applicant’s capacity for rehabilitation or vocational training. Our assessment based on what we have before us is that the applicant is not suited to such attempts at re-training.”
67. In the present case, medical reports from Dr Lewis, Dr Gibberd and CRS Australia stated that the applicant is capable of carrying out light sedentary work. The applicant, as well as being an experienced mechanic, has experience in small business management and marketing traineeships. He is computer literate. The Tribunal, therefore, finds that his skills and experience would make him capable of undertaking administrative work.
68. Normal weekly earnings are calculated in accordance with section 8 of the Act which relevantly reads:
“8 Normal weekly earnings
(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
NH x RP + A
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee's average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
(2) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:
NH x OR
where:
NH is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and
OR is the employee's average hourly overtime rate of pay during that period.”
69. On the basis of his leg injury alone the applicant is capable of undertaking employment. However the Tribunal is satisfied on the basis of the matters referred to in the report of Dr McEwen, that:
“…considering the knee arthritis in isolation, I agree with previous conclusions that he is fit for full time sedentary occupation, however, prevention of recurrent cellulitis is dependent on optimal treatment of chronic lymphoedema. This requires that his limb no be dependent for longer than two or three hours at any one time and that following a period of dependency a period of elevation of equal duration be available. If considering these requirements for optimal treatment of chronic lymphoedema, I consider it impossible for Mr Cheyne to be employed in a full time occupation without predisposing him to more frequent and severe episodes of recurrent cellulitis”,
that Mr Cheyne has an extremely limited capacity to work even in sedentary type employment.
70. It should be noted that the evidence of the applicant is that he undertakes unpaid work at the local bowls club for one hour per day two to three times per week.
71. In respect of the right thigh cellulitis condition and the issue of whether the respondent has, pursuant to section 19(4) of the Safety Rehabilitation and Compensation Act 1988 (the Act), properly and adequately considered the ability of the applicant to carry out light sedentary work in determining the amount per week the applicant is able to earn in suitable employment, the Tribunal finds that the applicant is fit for light sedentary work for a maximum of two hours per day. It seems that even on the applicant’s own admission he can work about three to six hours per week at the bowls club.
72. The applicant’s ability to earn income should be reassessed by the respondent on the basis of the Tribunal’s finding as to the applicant’s ability to work only two hours per day in light sedentary employment.
73. It is also necessary to consider whether the applicant has made genuine attempts to seek employment. On his own evidence the applicant has not looked for work since 1999. Counsel for the respondent referred the Tribunal to the unreported decision of Re Apostolidis and Comcare (AAT No 10431, 30 August 1995) in which Senior Member Dwyer said (at par 38):
“I find that Mrs Apostolidis’ attempts to seek suitable employment have been inadequate. The sending of one letter to a personnel agency with no follow-up, and a vague mention of looking at employment boards at the CES, once again with no follow-up, and a statement that newspapers have been looked at and telephone calls made do not satisfy me that Mrs Apostolidis made a genuine attempt to seek suitable employment. I agree with Mr Ryan's submission that, as was said by the Tribunal in Re Anderson and Director-General of Social Security, unreported, 17 August 1981, there is a distinction between serious efforts to seek employment and token ones. I find that Mrs Apostolidis did not make serious efforts to seek suitable employment. My finding in this respect is reinforced by the evidence that Ms Cynthia had advised Mrs Apostolidis by letter in September 1990 that she should keep records of attempts to seek suitable employment. In the light of that advice her failure to produce any records or give any detail of attempts to seek suitable employment beyond one letter sent to a personnel agency seems to me to be not consistent with genuinely seeking suitable employment.”
74. There is no doubt that a combination of factors has contributed to Mr Cheyne not actively seeking work. These include his physical injuries, his depression, his age and the fact that in 1999 when he did seek jobs to no avail his confidence would have been shaken.
75. However, the fact remains that Mr Cheyne has not actively sought work in the last four years.
Depression
76. Section 14(1) of the Act makes Comcare liable to pay compensation in respect of an “injury” suffered by an employee in the course of employment. Section 4(1) defines injury as:
“‘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.”
77. In this case, the applicant suffers from a disease, namely major depressive disorder. Section 4(1) defines disease as:
“‘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.”
78. Under this definition there is a requirement that the depressive disorder suffered by the applicant be “contributed to in a material degree” by his employment. In Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42, Davis J commented (at 43):
“It is sufficient that the employment contributed to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the workers employment.” [Tribunal’s emphasis]
79. In Treloar v Australian Telecommunications Commission (1990) 97 ALR 316, the Full Federal Court discussed the use of the word “material” and said (at 323):
“The use of the word ‘material’ in conjunction with the words ‘contributing factor’ in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The casual connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
80. The “contributed to” test for disease provides a less stringent test than that for injury. In Treloar v Australian Telecommunications Commission (1990) 97 ALR 316, the Full Federal Court said (at 328):
“[I]t follows…that once it is established that the employee in doing his work was exposed to ‘a state of affairs to which he would otherwise not have been exposed’ or to ‘some characteristic of or condition in which the work was to be performed’ and that such exposure was in truth a ‘contributing’ factor to the condition in respect of which he seeks compensation, then it matters not whether the contribution was of any particular size or degree… In all cases the question is whether there has been a ‘contribution’.”
81. The respondent argued that the applicant’s depressive disorder arose as a result of his operational service in Vietnam in 1971 and, pursuant to section 5(10)(a) of the Act, he is therefore statute barred from making a claim for compensation. Section 5(10) states:
“Subject to subsections (10A), (10B) and (10C), this Act does not apply in relation to service of a member of the Defence Force in respect of which provision for the payment of pension is made by:
(a) the Veterans' Entitlements Act 1986; or
(b) the Papua New Guinea (Members of the Forces Benefits) Act 1957.”
82. However, if the depressive disorder is attributable to a “material degree” to the accident which occurred in the course of the applicant’s employment it is irrelevant that his depressive disorder may also have been caused by his experiences in Vietnam for which he may have been able to make a claim under the Veterans’ Entitlements Act 1986.. Although section 5(10)(a) is obviously intended to operate to prevent a person from receiving a dual benefit under the compensatory schemes with regard to a disease or injury arising out of the same incident, the Tribunal does not consider it to be a bar to claim for a disease or injury that may have been caused by two or more incidents.
83. In this case, based on the totality of the medical evidence, the Tribunal is satisfied that a major contributing factor of the applicant’s major depressive disorder is the accident in 1966. The Tribunal is not persuaded that the applicant’s financial position, alcohol abuse and Vietnam experiences have been the major contributor to his depressive disorder, although these have been a contributing factor.
84. It was clear to the Tribunal that the applicant suffered a major trauma to his right leg in the 1966 accident. It was only as a result of the skill of his surgical team that Mr Cheyne did not lose the leg. However, it is severely deformed and has caused him major problems over the years. His leg is so badly injured that he has chronic lymphoedema and recurrent cellulitis. It is astonishing that Mr Cheyne was able to get himself fit enough to embark on a tour of Vietnam. He was, of course, then otherwise fit and had youth on his hands. His Vietnam tour was cut short as a result of his suffering cellulitis. He continued his career in the army until discharge in 1981. He was then gainfully employed in his own business until 1993. He leased the workshop in 1993 but as a result of poor management he lost the income from this lease and the building it was conducted in. His leg problems have plagued him throughout his working life.
85. Accordingly the Tribunal determines that the accident of 1966, which resulted in the applicant suffering cellulitis (for which the respondent has accepted liability), contributed in a material degree to the development of the depressive disorder from which the applicant now suffers. The Tribunal is satisfied that the applicant’s depressive disorder is caused by his accepted right thigh condition.
Decision
86. In relation to file number Q2000/800 (the right thigh cellulitis condition), the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the Tribunal’s reasons for decision.
87. In relation to file number Q2001/124 (depression condition), the Tribunal sets aside the decision under review and in substitution therefor determines that liability for the applicant’s major depressive disorder be accepted.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 23 October 2002 at Townsville
Date of Decision 19 August 2003
Counsel for the Applicant Mr D Honchin
Solicitor for the Applicant Purcell Taylor Lawyers
Counsel for the Respondent Mr P Bickford
Solicitor for the Respondent Australian Government Solicitor
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