Commission for the Safety, Rehabilitation & Compensation of Commonwealth Employees v Emery, I.D
[1993] FCA 982
•10 DECEMBER 1993
COMMISSION FOR THE SAFETY, REHABILITATION AND COMPENSATION OF COMMONWEALTH
EMPLOYEES v. IAN DOUGLAS EMERY
No. QG116 of 1992
FED No. 982/93
Number of pages - 11
Administrative Law - Workers' Compensation
(1993) 32 ALD 147
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
SPENDER J
CATCHWORDS
Administrative Law - Administrative Appeals Tribunal (Cth) - appeal to Federal Court.
Workers' Compensation - Commonwealth government employees' compensation - degree of permanent impairment - scope of concept of "Activities of Daily Living" - whether the specific components of the "Activities of Daily Living" concept are to be approached on an "all or nothing basis" - whether improper use made of American Medical Association's Guides when such guide used to confirm properly made conclusion regarding impairment.
Commonwealth Employees' Rehabilitation and Compensation Act 1988 - ss. 4(1), 24, 28.
HEARING
BRISBANE, 11 February 1993
#DATE 10:12:1993
Counsel for the Applicant Mr D. J. McGill instructed by: Australian Government Solicitor
Counsel for the Respondent Mr D. O'Gorman instructed by: Robert Campbell and Co.
ORDER
The Court Orders that:
The decision of the Administrative Appeals Tribunal of 8 July 1992 be varied so that it reads:
"The Tribunal decides that -
(a) the decision under review be set aside;
(b) there be substituted therefor a decision that the whole person impairment is assessed at 25%.
The applicant pay the respondent's costs of the appeal, to be taxed if not agreed.
JUDGE1
SPENDER J This is an appeal from a decision of the Administrative Appeals Tribunal pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975. The Tribunal on 8 July 1992 reviewed a decision of the Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees ('Comcare') of 6 January 1992, which affirmed a decision of 15 October 1991 determining that the applicant's permanent impairment remained at 10% as previously assessed in accordance with Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment ('the Guide').
The Tribunal set aside the decision under review, ordered that there be substituted therefor a decision that the whole person impairment is assessed at 25% and remitted the matter back to the Commission with a direction that the applicant be assessed by a physician and a neurologist.
An appeal lies to this Court only on a question of law.
This appeal concerns the process of quantification of the amount of compensation payable to Mr Emery in respect of an injury where the injury has resulted in permanent impairment.
Section 24 of the Commonwealth Employees Rehabilitation and Compensation Act 1988 ('the Act') is concerned with compensation for economic loss arising out of the impairment. Section 24(1) of the Act provides that 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. Section 4(1) of the Act defines "injury" to include an injury suffered by an employee, being a mental injury arising out of or in the course of the employee's employment. It is accepted by the parties that Mr Emery has suffered an injury as defined. Section 24(2) provides that for the purpose of determining whether an impairment is permanent, regard should be had to the duration of the impairment, the likelihood of improvement in the employee's condition, whether the employee has undertaken all reasonable rehabilitative treatment for the impairment, and any other relevant matters.
Comcare is to determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide (s. 24(5)) and the degree of impairment shall be expressed as a percentage (s. 24(6)).
Section 28 of the Act provides that the Guide is to set out:
"(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under these criteria, shall be expressed as a percentage."
Section 28(4) of the Act provides, inter alia, that where the Tribunal is required to review an assessment of the degree of permanent impairment of an employee resulting from an injury, the provisions of the Guide are binding upon the Tribunal and the review shall be made under the relevant provisions of the Guide. In the Preface to the Guide, Comcare stated:
"In preparing this guide concepts used in the American Medical Association's Guides have been adopted."
However, the Guide contains the statement that:
"In the unlikely event that an employees' (sic) impairment is of a kind that cannot be assessed in accordance with the provisions of the Guide, Comcare may direct that assessment be made under the provisions of the current American Medical Association's Guides."
Mr Emery was born in 1949, and after employment with the Commonwealth Bank was employed for many years by the Australian Taxation Office. At the time of the hearing before the Tribunal the applicant had been on extensive compensation leave, but prior to that was a manager in a section described as 'General Inspections' in the Townsville branch of the Taxation Office. During the period whilst on compensation leave there were apparently two occasions when the applicant attempted to return to work but these attempts were shortlived and unsuccessful.
Mr Emery at the time of the Tribunal hearing was living by himself and "relies on professional help to keep his day to day life on track" as the Tribunal expressed it. The Tribunal said:
"That assistance comes in the form of counselling by Interlock Occupational Counselling and Training Services."
Before the Tribunal it was agreed between the parties that the only matter to be resolved was whether the applicant had "a need for some supervision and direction in activities of daily living". The description of the 25% level of impairment item in Table 5.1 ('the Table') is:
"ALL of the following accompanied by a need for some supervision and direction in activities of daily living. . reactions to stressors of daily living which cause modification of daily living patterns;
. marked disturbances in thinking;
. definite disturbances in behaviour;"
The Tribunal noted that it was not in dispute that the three specific components of that description were present in Mr Emery's case.
The Table, for levels of impairment of 0, 5% and 10%, speaks of a person being capable of performing activities of daily living without supervision or assistance. For levels of impairment of 15%, 20% and 25%, the Table requires a need for some supervision and direction in the activities of daily living. For 30% and 40% levels of impairment, the Table requires "a need for supervision and direction in the activities of daily living". For 50% and 60% levels of impairment the Table calls for a need for supervision and direction in a confined environment. At the 90% level of impairment the Table requires "constant supervision and care in a confined environment and assistance with all aspects of the activities of daily living".
The Tribunal said:
"(i)t is clear that with increasing level of impairment there are not only increases in quantity of need but also qualitative changes in that need. The quantum of supervision varies from 'none' at levels 0-10% inclusive, to 'some' at levels 15-25% inclusive, right up to 'constant' at 90%."
At page 3 of the Guide, under the heading "Principles of Assessment", and dealing, inter alia, with "Impairment", the following appears:
"Impairment means 'the loss, loss of use, damage or malfunction, of any part of the body, bodily system or function or part of such system or function'. It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality. Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.
Impairment is measured against its effect on personal efficiency in the 'activities of daily living' in comparison with a normal healthy person. The measure of 'activities of daily living' is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care."
Under the heading "Glossary", the following appears:
"Activities of Daily Living"
Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are: Ability to receive and respond to incoming stimuli Standing
Moving
Feeding (includes eating but not the preparation of food) Control of bladder and bowel
Self care (bathing dressing etc.)
Sexual function
The claim by Comcare is that the definition of "Activities of Daily Living" is directed to basic physical functioning of an individual at a rudimentary level. It was submitted on behalf of Comcare that the Tribunal had given a much wider scope to the concept of "Activities of Daily Living" which involved a misconstruction of that definition and thus an error of law. In particular it was said that the matters found by the Tribunal to give rise to a need for supervision and direction are not within the definition of the "Activities of Daily Living" on the true construction of that phrase.
I do not accept that the Tribunal so erred. In my view, it is apparent from observations that the Tribunal did make that the Tribunal did itself focus on those activities which an individual needs to perform to function in a non-specific environment, i.e., to live. The Tribunal bluntly, and correctly, stated:
"The appropriate table for the purpose of determining a level of impairment expressed as a percentage in the case of this applicant is Table 5.1 as it is agreed that any impairment is due to a psychiatric disorder."
The Tribunal continued:
"This Table 5.1 has what might be termed a general provision and other specific provisions. It was not in dispute that the specific provisions of the 25% level, viz. . reactions to stresses of daily living which cause modification of daily living patterns
. marked disturbances in thinking
. definite disturbances in behaviour
were accepted as present in this applicant's case."
The Tribunal said:
"The Tribunal accepts that 'some' means any amount at all, even the very minimum."
Putting matters de minimus to one side, as being irrelevant to these proceedings, it is not suggested that in this respect the Tribunal erred.
The Tribunal also noted that the need for direction and supervision "is a measure of impairment and this is in no sense a measure of incapacity".
The Tribunal continued:
"The Tribunal has also to have regard to the term ADL ('activities of daily living'). This term is frequently used by members of the caring professions and is often related to basic biological functioning. The Tribunal has the advantage of a glossary definition of this term. The definition goes beyond the common usage of the term by defining ADL as a 'measure of primary biological and psychosocial function'. In common usage ADL would be quite an inappropriate scale on which to measure impairment due to psychiatric conditions which Table 5.1 purports to do and to this Table the Tribunal is bound, subject to the use of the American Medical Association Guides (as earlier outlined)."
The Tribunal rejected the approach urged by counsel for Comcare before the Tribunal, which the Tribunal said involved a consideration of the activities listed in the second paragraph of the definition of "activities of daily living" on an all or none response. The Tribunal rejected the view "If a person could stand, he could stand; if he could move, he could move; and so on".
The complaint of Comcare can be illustrated by reference to one of the activities of daily living specified in the glossary, namely, "feeding". It was submitted by counsel for Comcare that:
"Feeding is not concerned with the question of managing diet or managing food intake, it is concerned with the process of actually getting the food from the plate to the person."
The evidence before the Tribunal in this case permitted the conclusion that some measure of direction and supervision was required in Mr Emery's case in the management of his diet, because of his mental injury. The submission by Comcare in respect of this evidence is that it is irrelevant and it was submitted:
"There is no suggestion that he could not feed himself if food was put before him, and that is what the definition is concerned with."
The Tribunal did not accept this very narrow approach and, in my view, in the approach that it adopted no legal error has been shown.
The Tribunal referred to the use of "Activities of Daily Living" in other Tables of the Guide, and said that certain conclusions could be reached. The Tribunal said:
"The first is that to find 'some supervision and direction in ADL was needed' there is no requirement that all, or most, or any one of the particular functions listed in the glossary definition have been adversely affected. Another conclusion is that the term ADL is not limited to the basic mechanics of an activity but due weight must be given to the psychosocial aspect of the function ie the ability to stand may be impaired because one cannot stand straight, or stand still or stand around on even standby without some supervision or direction."
It seems to me that no criticism can be taken of the correctness of this passage, save for the ambiguity in the reference to "any one of the particular functions listed in the glossary definition". If that reference was meant to read "any particular one" was necessary to have been adversely affected, no complaint could be made. If, however, the suggestion is it could be concluded that some supervision and direction in the activities of daily living was needed without reference or regard to any of those listed activities, that would be a misinterpretation of the requirement.
The Tribunal expressly set out and clearly rejected the submissions on behalf of Comcare, as follows:
"In his examination of witnesses counsel for the respondent sought to make it clear that the activities listed in the second paragraph of the definition of ADL were matters which could be determined on the basis of an all or none response. If a person could stand, he could stand; if he could move, he could move and so on. The conclusion to be reached would be that an unconscious patient whose eyelid flickered could indubitably be said to be capable of 'moving'. It was also postulated that to find 'some supervision and direction in ADL was needed' most, if not all, the seven defined functions needed both supervision and direction."
It is clear that the Tribunal rejected these submissions and, in my view, that conduct did not involve error.
A report from Interlock Occupational Counselling and Training Services to Comcare of 13 November 1991 reported, inter alia:
"He seems less able to organise his personal life, i.e. exercise, food intake, and social contact, compared with the period leading up to his return to work in March 1990."
Having referred to this report, the Tribunal said:
"The Tribunal accepts that 'exercise' cannot be interpreted as other than 'movement' in the definition of ADL and 'food intake' cannot be interpreted as other than 'feeding'. It is beyond doubt that these two activities of daily living required not only some supervision and direction by the counselling service, but this report highlights both the Part A impairment and the non-economic loss Part B aspects, ie the social contact."
The reference to "Part A impairment" and "Non-Economic Loss Part B aspects" is a reference to the matters referred to respectively in s. 28(1)(a) of the Act and 28(1)(b) of the Act earlier set out.
The Tribunal continued:
"The Tribunal accepts the evidence of the applicant and that of Dr Apel that without direction and supervision the exercise regime so necessary to the applicant's good health would be in jeopardy."
Having regard to the reasons of the Tribunal as a whole, I am not satisfied that in reaching its conclusion concerning the need for some supervision and direction in activities of daily living, the Tribunal adopted an erroneous interpretation of that concept.
It was next submitted on behalf of Comcare that there was no evidence to support the findings of the Tribunal that Mr Emery required "supervision and direction" in respect of both "movement" and "feeding" and that Mr Emery required "supervision and direction" of an exercise regime that was necessary to Mr Emery's continuing good health.
That report of Interlock of 13 November 1991 detailed that Interlock had been seeing Mr Emery on a regular basis since May 1989, for most of the time weekly, and at least monthly. The report said:
"We have also been involved in writing reports for Comcare and the Australian Taxation Office, consulting with his medical practitioners, mediating with Australian Taxation Office personnel and having discussions with supervisors and Occupational Health and Safety personnel.
Our role has been one of support and offering cognitive and relaxation therapy for Ian during this time in an attempt to reduce the impact that the long drawn-out process has had on his health."
Further, Dr R. H. G. Apel gave oral evidence before the Tribunal and expressed his opinion as follows:
"I believe that Mr Emery suffers with a panic disorder, the level of it such that he requires supervision at a low level and not constantly, but certainly requires some."
In a report before the Tribunal, Dr Apel had reported:
"Mr Emery has a modification of daily patterns with disturbances and thinking and behaviour which requires some supervision."
and having been directed to the requirement that there be a need for supervision and direction in activities of daily living, Dr Apel said:
" ...I must say that I regarded the fact that he required assistance in, say, taking him to the gym each day because of his lack of motivation; the fact that he required someone to assist him with his driving; someone to supervise his appointments, as indicating a need for some supervision of his daily activities." (my underlining)
Further, while what precisely was the scale to which Dr Apel was referring was not clear, Dr Apel was directed to a statement in his report which read:
"The enclosed scale would place his disability at 25%."
He was then asked:
"Now was the scale that you were referring to there Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment?"
A. It was."
Further, the evidence shows that the representative of Comcare asked Dr Apel:
"Dr Apel, when you made your assessment of 25%, did you refer to Table 5.1.
A. I did."
but that he later said:
"At the time I answered that I was working off a list prepared for me by Mr Campbell and I believe that had its origins from Comcare which I understand was based on this." "This" was a reference to Table 5.1.
In my opinion, there was evidence before the Tribunal which was such as to permit it to conclude that there was "a need for some supervision and direction in activities of daily living", being the activities set out in the glossary which he needs to perform.
It was next submitted that the Tribunal made improper use of American Medical Association's Guides, which use was not permitted by the Guide and was consequently contrary to s. 28(4).
The Tribunal said;
"We have reviewed our finding by referring to the American Medical Association's Guides (3rd edition 1989)." (my emphasis)
and later the Tribunal said:
"It is noted that in the American Guide there is a specific refusal to assign percentage impairment in the case of mental and behavioural disorders. Applying Chapter 14 we have come to the conclusion that the applicant suffers 'moderate impairment' which is consistent with our view that impairment is correctly assessed under Table 5.1 at 25%."
These passages indicate that there was no substitution for the test or tests to be applied under the Guide of tests referred to in the American Medical Association's Guides; rather that the Tribunal expressed the view that a reference to the American Medical Association's Guides simply confirmed the correctness of the assessment that had in fact been made by the Tribunal pursuant to the Guide.
Complaint is further made by Comcare on the appeal that the Tribunal having substituted its own decision for the decision under review, there was no basis for the Tribunal also to remit the decision to Comcare for further medical assessment. Counsel for Mr Emery did not disagree. I accept the validity of this criticism. In all other respects, in my opinion, the appeal should be dismissed. The applicant should pay the respondent's costs of the appeal.
In the light of these reasons, the orders of the Court are:
1. The decision of the Administrative Appeals Tribunal of 8 July 1992 be varied so that it reads:
"The Tribunal decides that -
(a) the decision under review be set aside;
(b) there be substituted therefor a decision that the whole person impairment is assessed at 25%."
2. The applicant pay the respondent's costs of the appeal, to be taxed if not agreed.
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