Croxon and Military Rehabilitation and Compensation Commission (Compensation)
[2018] AATA 4427
•27 November 2018
Croxon and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 4427 (27 November 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/5564
Re:William Croxon
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:27 November 2018
Place:Perth
The Tribunal affirms the Reviewable Decision dated 6 September 2017.
...............[sgd]........................................................
Deputy President Boyle
CATCHWORDS
VETERANS’ APPEALS – Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) – Post-Traumatic Stress Disorder – whether Applicant suffers a permanent condition – Guide to the Assessment of the Degree of Permanent Impairment – whole person impairment rating – whether the permanent condition is likely to continue indefinitely – activities of daily living – need for supervision and direction – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 24, s 27
Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth) – s 2, Sch 1 s 4AA, Sch 1 s 64, Sch 2 s 26
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) –
s 14, s 24, s 24(2), s 24(7), s 27, s 24(9), s 28, s 64CASES
Comcare v Filla (2002) 115 FCR 163
D’Amico and Comcare [2018] AATA 54
Filla v Comcare (2001) 115 FCR 144
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Re LLSY and Minister for Immigration and Citizenship (2011) 121 ALD 630
Perich and Secretary, Department of Social Services [2018] AATA 963SECONDARY MATERIALS
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (Comcare, Edition 2.1, 1 December 2011) – Pt 2 Table 5.1
REASONS FOR DECISION
Deputy President Boyle
27 November 2018
THE APPLICATION
The Applicant seeks review of the Respondent’s decision of 6 September 2017 (R5, T34) (the Reviewable Decision) which affirmed the determination dated 19 June 2017 (R5, T27) (the Determination).
By the Determination of 19 June 2017 (R5, T27) the Respondent accepted the Applicant’s claim for permanent impairment and non-economic loss in relation to the Applicant’s accepted condition of “chronic post-traumatic stress disorder” (PTSD) under
ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The Respondent assessed that the Applicant suffered a whole person impairment of 10% under the Comcare Guide to the Assessment of the Degree of Permanent Impairment (Comcare, Edition 2.1, 1 December 2011) (the Guide).The application for review was made on 15 September 2017 (R5, T2). By operation of
s 64 in Sch 1 of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act2017 (Cth) (the Amending Act), the process, including the claim for compensation and the application, are taken to have been begun under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (the DRC Act).
Pursuant to s 64 of the DRC Act, the Tribunal has the power to review the Reviewable Decision.
BACKGROUND
The Applicant was a member of the Royal Australian Navy. In September 1991, following the eruption of Mt Pinatubo in the Philippines, the ship on which the Applicant was serving was sent to provide relief. The crew of the Applicant’s ship was charged with undertaking repairs to Olongapo General Hospital and Olongapo National High School following damage caused by the volcanic eruption.
The crew also aided in repatriating some of the decomposed dead to either Manilla or Subic Bay.
On 24 July 2016 the Applicant lodged a claim for rehabilitation and compensation in respect of “PTSD, general anxiety disorder” following the disaster relief duties referred to in [6] above (R5, T9).
By determination dated 28 September 2016 the Applicant’s claim for PTSD was accepted under the SRC Act with a date of effect of 7 November 2012 (R5, T10 at 46). Liability for “anxiety disorder” was rejected as the diagnosis had not been confirmed by the Applicant’s treating doctor, Dr Sekhon, consultant psychiatrist (R5, T10 at 46).
On 17 October 2016 the Department of Veterans’ Affairs (the DVA) received the Applicant’s Needs Assessment form. The Applicant stated that he would like to be assessed for permanent impairment lump sum compensation as a result of the PTSD condition (R5, T11).
By the Determination dated 19 June 2017 (R5, T27) the Applicant’s claim for permanent impairment was accepted and the delegate allocated a whole person impairment (WPI) assessment of 10% under Table 5.1 in Part 2 of the Guide. This equated to a total amount of compensation payable to the Applicant of $46,216.20 ($18,303.48 under s 24 of the SRC Act and $27,912.72 under s 27 of the SRC Act for non-economic loss) (R5, T27).
On 31 August 2017 the Applicant’s representative requested a review of the Determination (R5, T33) contending that the Applicant has a WPI of 40% based on the report of Dr Sekhon (R5, T32 at 161).
By Reviewable Decision dated 6 September 2017, the Determination was affirmed. The review delegate considered that there were inconsistencies in Dr Sekhon’s reports and preferred the opinion of Dr Spear, consultant psychiatrist (R5, T34).
On 15 September 2017 the Applicant, through his representative, applied to the Administrative Appeals Tribunal (the Tribunal) for review of the Reviewable Decision dated 6 September 2017 (R5, T27).
THE ISSUES
The Respondent, in the Respondent’s Statement of Issues, Facts and Contentions (SIFC) (R1) at paragraph 2.1(b), identifies the issues for determination by the Tribunal as follows:
(a)whether the PTSD condition is permanent, in the sense of being likely to continue indefinitely, and for the purpose of section 24(2) of the DRC Act;
(b)if so, whether the whole person impairment (WPI) suffered by the Applicant is at least a WPI of 10% and whether, because of section 24(7) of the DRC Act, compensation is not payable under sections 24 and 27 of the DRC Act.
(c)if the WPI assessment as a result of the Injury is at least 10%, what the degree of WPI is as a result of the Injury giving specific consideration to whether the Applicant requires supervision and direction in his activities of daily living.
The Applicant’s position in relation to the issues identified at (b) and (c) is that his WPI is 40%. The Respondent’s case is that the Applicant’s WPI is 10%.
The Tribunal agrees with the Respondent’s identification of the issues to be determined in these proceedings.
THE HEARING
The application was heard on 27 September 2018. The Applicant was represented by Mr Beacham of the RSL. The Respondent was represented by Mr Burgess, instructed by Sparke Helmore. The Applicant and Dr Jonathan Spear gave evidence at the hearing and were cross-examined.
The following documents were tendered at the hearing:
·Applicant’s submission, received by the Tribunal on 25 June 2018 (Exhibit A1);
·Letter from Slater and Gordon, dated 31 January 2018 (Exhibit A2);
·Witness statement of John Duffy, dated 5 December 2017 (Exhibit A3);
·Witness statement of Sarah Loriso, dated 18 December 2017 (Exhibit A4);
·Respondent’s SIFC, dated 25 July 2018 (Exhibit R1);
·Instructing Letter from Sparke Helmore Lawyers to Dr Spear, dated 13 April 2018 (Exhibit R2);
·Report of Dr Jonathan Spears, dated 27 April 2018 (Exhibit R3);
·Bentley Mental Health Services Triage Forms, dated 16 February 2017 and 5 November 2017 (Exhibit R4);
·T-Docs (Exhibit R5); and
·Bentley Mental Health Services Triage Form, dated 20 April 2017 (Exhibit R6).
LEGISLATIVE FRAMEWORK
As noted at [3] above, the Applicant lodged this application on 15 September 2017. Under s 2 of the Amending Act, the DRC Act came into effect on 12 October 2017. The Amending Act, in effect, substantially duplicated the terms of the SRC Act and that duplicate act became the DRC Act.
The Amending Act also made some amendments to the SRC Act including:
(a)Amending section 4AA of the SRC Act to provide: “Neither Comcare nor the Commission has any liability under this Act in respect of an injury, loss, damage or death that relates to defence service (whenever it occurred)”. By this amendment, liability for defence-related claims was transferred to the DRC Act or the Military, Rehabilitation and Compensation Act 2004 (Cth), depending on the date of the injury; and
(b)Repealing Part XI of the SRC Act, which had been the part of the SRC Act that had contained provisions in relation to liability for defence-related claims. Part XI remains in the DRC Act.
Section 64 in Sch 1 of the Amending Act provides:
64Claims, applications, requests and other processes begun under the Safety, Rehabilitation and Compensation Act 1988
(1)This item applies if:
(a)a process begun (including by claim, application or request) under a provision of the Safety, Rehabilitation and Compensation Act 1988 before the first commencement time was not completed by that time; and
(b)immediately after the second commencement time, there is a corresponding provision in the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988.
(2)Without limiting its effect apart from this item, the process is also taken, after the second commencement time, to have been begun under the corresponding provision.
The first commencement and the second commencement time for the purposes of s 64 in Sch 1 of the Amending Act are both 12 October 2017 (see s 62 in Sch 1 and s 2 of the Amending Act).
As the application was commenced before 12 October 2017 and there are provisions in the DRC Act corresponding to provisions in the SRC Act, the application is taken to be made under the DRC Act.
Section 14 of the DRC Act, relevantly, provides:
14Compensation for injuries
(1)Subject to this Part, the Commonwealth 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 24 of the DRC Act relevantly provides:
24Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, the Commonwealth is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, the MRCC 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 the MRCC under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by the MRCC shall be an amount that is the same percentage of the maximum amount as the percentage determined by the MRCC under subsection (5).
(5)The MRCC shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)the MRCC determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A)…
(8)…
(9)For the purposes of this section, the maximum amount is $80,000.
The maximum amount for the purposes of s 24(9) of the DRC Act was, at the relevant time, $189,310.19.
Section 27 of the DRC Act relevantly provides:
27Compensation for non‑economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, the Commonwealth is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.
(2)The amount of compensation is an amount assessed by the MRCC under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by the MRCC under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by the MRCC under the approved Guide to be the degree of non‑economic loss suffered by the employee.
(3)…
Section 28 of the DRC Act relevantly provides:
28Approved Guide
(1)The MRCC may, from time to time, prepare a written document, to be called the ‘Guide to the Assessment of the Degree of Permanent Impairment’, setting 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 those criteria, shall be expressed as a percentage.
(2)The MRCC may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) …
(3A)A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, is a legislative instrument made by the Minister on the day on which the Guide, or variation or revocation, is approved by the Minister.
(4)Where the MRCC or the Administrative Appeals Tribunal is required to assess or re‑assess, or review the assessment or re‑assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non‑economic loss suffered by an employee, the provisions of the approved Guide are binding on the MRCC or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re‑assessment or review, and the assessment, re‑assessment or review shall be made under the relevant provisions of the approved Guide.
(5)The percentage of permanent impairment or non‑economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
(6) …
Table 5.1 in Part 2 (“Defence-Related Claims for Permanent Impairment”) of the Guide (R5, T27 at 142 and 143) is as follows:
5. Psychiatric Conditions
Table 5.1: Personality disorders, psychoneuroses, psychoses, etc
Includes psychoses, neuroses, personality disorders and other diagnosable conditions. The assessment should be made on optimum medication at a stage where the condition is reasonably stable.
%
Description of level of impairment
0
Reactions to stresses of daily living WITHOUT loss of personal or social efficiency AND retained capability of performing activities of daily living without supervision or assistance.
5
Despite the presence of ONE of the following, employee is capable of performing activities of daily living without supervision or assistance:
> reactions to stresses of daily living with minor loss of personal or social efficiency
> lack of conscience-directed behaviour without harm to others or self
> minor distortion of thinking.
10
Despite the presence of more than one of the following, employee is capable of performing activities of daily living without supervision or assistance:
> reactions to stresses of daily living with minor loss of personal or social efficiency
> lack of conscience-directed behaviour without harm to others or self
> minor distortion of thinking.
15
Any of the following, accompanied by a need for some supervision and direction in activities of daily living:
> reactions to stresses of daily living which cause modification of daily living patterns
> marked disturbances in thinking
> definite disturbance in behaviour.
20
Any two of the following, accompanied by a need for some supervision and direction in activities of daily living:
> reactions to stresses of daily living which cause modification of daily living patterns
> marked disturbance in thinking
> definite disturbance in behaviour.
25
All of the following, accompanied by a need for some supervision and direction in activities of daily living:
> reactions to stresses of daily living which cause modification of daily living patterns
> marked disturbances in thinking
> definite disturbances in behaviour.
30
Any one of the following, accompanied by a need for supervision and direction in activities of daily living:
> hospital dischargees who require daily medication or regular therapy to avoid readmission
> loss of self control and/or inability to learn from experience causing considerable damage to self or others.
40
Both one of the following, accompanied by a need for supervision and direction in activities of daily living:
> hospital dischargees who require daily medication or regular therapy to avoid readmission
> loss of self control and/or inability to learn from experience causing considerable damage to self or others.
50
One of the following:
> severe disturbances of thinking and/or behaviour which entails potential or actual harm to self and/or others
> need for supervision and direction in a confined environment.
60
Both of the following
> severe disturbances of thinking and/or behaviour which entails potential or actual harm to self and/or others
>need for supervision and direction in a confined environment.
90
Very severe disturbance in all aspects of thinking and behaviour such as to require constant supervision and care in a confined environment and assistance with all activities of daily living.
At page 221 of the Guide, the term “activities of daily living” is defined as follows:
Activities of daily living are those activities that an employee needs to perform to function in a non-specific environment, i.e. 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 MEDICAL EVIDENCE
The Applicant was seen by a Dr Knezevic in September 1994. In a report dated 12 September 1994 addressed to Dr Harden of HMAS Stirling (R5, T4), Dr Knezevic noted that the Applicant had been troubled by “persistent headaches” over a seven to eight month period. His CT scan was normal and Dr Knezevic diagnosed the headaches as being stress related, noting that the Applicant had advised him that he was dissatisfied with his job.
A report of a Dr Roy Kolnik (R5, T5), dated 2 December 2005, addressed to Leeuwin Barrack Medical Centre noted, amongst other things that:
He is an able and serious person, who has enjoyed his military experience, and tells me that he has taken his training and practice very seriously.
As you are aware, he has suffered a number of emotional blows; firstly the loss of his marriage under very difficult circumstances, following this, the loss of day-to-day contact with his two daughters, and more recently a relationship of some eight months’ standing disintegrated.
Mr Croxon tells me that he feels that the latter relationship crumbled because of his inability to communicate openly, and the withdrawal and introversion that had settled upon him following the separation and divorce from his wife some three years’ ago.
His depressive symptomology most likely dates from the marital disruption, and he tells me that he has had some trials of SSRI antidepressant medication, including Fluvoxamine and Sertraline…
…
His upbringing was difficult in a number of ways. His parents separated when he was ten years’ of age, and he felt betrayed and saddened. His brothers looked after him. However, William was in a foster-home for twelve months until retrieved by one of his brothers.
Dr Kolnik again saw the Applicant on 21 December 2005 and by a report dated 31 December 2005 (R5, T6) advised that:
… Though I still find him significantly troubled and depressed, he is very firm in a positive self-assessment. He tells me that ‘I’m definitely improving’.
The Applicant was seen by Dr Raymond C.K. Wu, consultant psychiatrist, who, by report dated 11 June 2012 (R5, T7), noted that he first saw the Applicant on 30 April 2010 and that he had seen him on 15 further occasions up to 31 May 2012. He also reported (R5, T7 at 21) that the Applicant had attended the emergency department of Rockingham Hospital during a recent crisis and was “warded” for observation but subsequently discharged.
Dr Wu reported the Applicant as being a 39 year old man working as a training and development coordinator (R5, T7). Dr Wu reported that (R5, T7):
On the first session with me, Mr Croxon told me in his narrative his history of presenting complaints that his problems was relate (sic) to stress and his mental state had been affected by the stress. He also complained of depressed mood and lethargy, which had affected his functioning. He said that the stress affecting him were (sic) to the extent that things were ‘going wrong’ with his life, he was coping. He told me he was ‘putting up a charade’ to keep up appearances with his colleagues but was suffering within. He told me about being harassed by colleagues at work. He said he was not able to continue working there any longer and had intended to resign or take sick leave to recover from the stress.
…
When Mr Croxon first saw me, he told me that he had suffered from depression for many years…
…
Mr Croxon said that he felt harassed by the people around him, whom he deemed as people he would normally trust. He was now at the brink of absolute dismay and he was so despondent that he had deliberately crashed his car into a wall.
….
In November 2009, he carefully planned a second suicide attempt. Over a period of a month he thought out a plan of a gambling spree followed by a drug and alcohol overdose. He then checked into a local hotel casino and gambled away his life savings and proceeded then to overdose on an unquantified amount of sleeping tablets with copious drinking of an unquantified amount of alcohol, over a period of three consecutive nights. He was found by his girlfriend, Sarah in the casino in a bad state…
…
In March 2012, he attended and this time, he raised the issue of work stress being the primary matter and referred to the problems he has had with his female supervisor. He reported having undergone months of harassment and felt ‘devastated’…
Mr Croxon also told me at that stage that on a personal level he had decided to separate from his girlfriend of 4½ years, Sarah, due to ongoing problems. I had understood that Sarah probably still loved him but could not tolerate his drinking and gambling habits any longer. Overall, however, he told me that he was coping well (just) and he had also decided to take a ‘break from work’ as he felt ‘burnt out’ and ‘disappointed’ with his life.
In a report dated 20 March 2016 (R5, T8) Dr Raj Sekhon, psychiatrist, reported that:
… I have been managing Mr Croxon since 07/11/2012.
I review Mr Croxon every 6 weeks…
Mr Croxon has a Chronic Post-Traumatic Stress Disorder. The onset was in 1991 following his role on providing disaster relief following the eruption of Mt Pinatubo in the Philippines, he was serving with the armed forces at that stage.
His symptoms developed within two weeks after his role in providing disaster relief and his symptoms have been persistent and continuous since.
…
His symptoms have been persistent and resulted in significant distress, impaired ability to function from a social/occupational perspective and this has impacted on his ability to maintain and sustain interpersonal relationships.
…
Mr Croxon continues to be debilitated by his Post Traumatic Stress Disorder symptomology. Further complicating factor for his recovery is the fact that he reacts to antidepressants in a paradoxical manner and his symptoms actually worsen whilst on antidepressants.
Dr Sekhon issued a letter on 14 November 2016 (R5, T13) advising that the Applicant “is unable to undertake any form of employment for the next 12 months (14/11/16 to 14/11/17)”.
A DVA Rehabilitation Assessment Report was completed by Ms Emily Meyrick of the rehabilitation organisation Incite Solutions Group on 27 February 2017 (R5, T19). That report noted, under the heading “Home routines, tasks & self-care”:
Mr Croxon lives in a Unit … with his two Jack Russell dogs. Mr Croxon reported an inability to run his home efficiently at the current time. He reported being unable to pay his bills, putting them straight in the bin as they come through the door, he stated he would appreciate some assistance with this.
In a Permanent Impairment Report, being “Answers to the Permanent Impairment – Schedule of Questions” dated 16 March 2017 (R5, T30), Dr Sekhon reported as follows:
Q1. Does the employee also suffer any additional conditions attributable to the accepted conditions [PTSD was identified as the accepted condition] or to the claimed cause of the injury?...
No
…
Q4. What is the current percentage of loss of efficient use (%LOEU) of the relevant body part that is impaired as a result of the accepted condition and what date did the condition become static?...
40%
In answer to question 5, asking for a WPI rating, Dr Sekhon assessed the Applicant’s WPI under Table 5.1 in Part 2 of the Guide at 40% with the reason for that assessment being “Severity of condition” (R5, T30 at 149).
In that report Dr Sekhon responded as follows (R5, T30 at 150),:
Considering the Activities of Daily Living’s (sic)(ADL) DESCRIBED BELOW PLEASE SPECIFY WHICH ADL’S (sic) ARE AFFECTED…Activities of daily living are those activities that an employee needs to perform to function in a non-specific environment, i.e. to live. The measure of daily living is a measure of the primary biological and psychosocial function. They are:
Affected?
Yes/No
Activities of Daily Living
Explanation if Yes
No
Ability to receive and respond to incoming stimuli
-
No
Standing
-
No
Moving
-
No
Feeding (includes eating but not the preparation of food)
-
No
Control of bladder and bowel
-
Yes
Self-care (bathing, dressing etc.)
Severe Neglect
Yes
Sexual function
Severe Impairment in Libido
By letter dated 17 March 2017 (R5, T20) Dr Sekhon advised that the Applicant was not medically fit to participate in the Quality of Life rehabilitation program that had been proposed by Incite Solutions Group.
The Applicant was seen by Dr Jonathon Spear, consultant psychiatrist, on 25 May 2017 (R5, T25). In his report dated 8 June 2017 (R5, T25) Dr Spear noted that the consultation lasted 90 minutes, from 1415 pm to 1545 pm. Dr Spear diagnosed the Applicant (R5, T25 at 112) as follows:
Diagnosis:
My diagnosis according to DSM-IV_TR is as follows:
Axis I: Posttraumatic Stress Disorder, chronic.
Methamphetamine Abuse.
Alcohol abuse, in remission.
Axis II: Personality disorder, avoidant coping strategy
Causation:
Mr Croxon reported the onset of symptoms from 1991 after he witnessed decomposing civilian bodies during deployment in South China Sea.
He also reported other stressors including finding the DVA process stressful particularly a doctor being sent the wrong paperwork, the death of a friend in a helicopter crash in 2006, a sergeant telling him that he had been discharged on the previous day and therefore did not attend an appointment which made him feel humiliated, relationship issues with two marital separations and financial pressure.
Prognosis:
He has long standing symptoms despite treatment. He reported that he has not worked apart from being in the RAAF Reserve since being 23 years of age. Therefore, he is most unlikely to make a recovery or return to any employment.
In his report of 8 June 2017, Dr Spear also responded to the DVA’s Standard “Permanent Impairment – Schedule of Questions” which had been sent to him under cover of letter dated 18 May 2017 (R5, T23). The “Schedule of Questions” identified the condition to be assessed as “Chronic Post Traumatic Stress Disorder” (R5, T23 at 99 and R5, T25 at 113).
In answer to Question 1: “Does the employee also suffer any additional conditions attributable to the accepted conditions or to the claimed cause of the injury?”, Dr Spear identified additional stand-alone conditions (R5, T25 at 114):
Additional Conditions ICD10 or DSMIV Personality Disorder
Alcohol Abuse, in remission
Methamphetamine Abuse
DSM-IV TR 301.9
DSM-IV TR 305.0
DSM-IV TR 305.70
Dr Spear apportioned the condition of PTSD condition with the additional conditions that he had identified at “About half” (R5, T25 at 114). He also assessed the PTSD condition to be permanent and stable (R5, T25 at 115).
Question 6e asked (R5, T25 at 116):
Does the client require supervision for his activities of daily living (ADL’s)(sic). ADL’s (sic) are considered 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.
To which Dr Spear responded:
No, Mr Croxon does not require supervision for his activities of daily living.
Question 6g asked (R5, T25 at 116):
Is the client required to be confined for supervision and direction? Please advise details.
To which Dr Spear responded:
Mr Croxon is not required to be confined for supervision or direction.
Question 6h asked (R5, T25 at 117):
Has the client been hospitalised for his accepted condition? Please advise details.
To which Dr Spear responded:
Mr Croxon has periods of admission to hospital for (sic) following overdoses or other self-destructive behaviours. He has required admission to Mimidi Ward, Rockingham General Hospital on about four or five occasions. He denied any admissions in the past 12 months. He reported these admissions had lasted between 5 days and 30 days. He explained that these were generally associated with overdoses of alprazolam a sedating benzodiazepine. Therefore, he was unable to recall details of those events.
Question 7 asked (R5, T25 at 117):
What is the degree of whole person impairment (WPI) having regard to the attached table of the Guide to the Assessment of the Degree of Permanent impairment provided for each individual accepted condition?
To which Dr Spear responded:
Chronic Post Traumatic Stress Disorder – 10% under Table 5.1 Reason – He presented with decompensation, overdoses and cognitive distortions, but he has no need for supervision or direction or confinement.
Condition %WPI Table Reason Chronic Post Traumatic Stress Disorder 10% 5.1 He presented with decompensation, overdoses and cognitive distortions, but he has no need for supervision or direction or confinement.
Question 9 asked (R5, T25 at 118):
Considering the Activities of Daily Living’s (sic) (ADL) described below please specify which ADL’S are affected, you need to provide a detailed explanation as to how the client’s condition/s affect each of those ADL’S.
Activities of daily living are those activities that an employee needs to perform to function in a non-specific environment, i.e. to live. The measure of activities of daily living is a measure of primary biological and psychological function. They are:
Affected?
Yes/No?Activity of Daily Living Explanation if Yes No Ability to receive and respond to incoming stimuli No Standing No Moving No Feeding (includes eating but not the preparation of food) No Control of bladder and bowel No Self-care (bathing, dressing etc.) No Sexual function
At page 16 of his report (R5, T25 at 126), under the heading “Lifestyle and Current Functioning (daily activities and work capacity)”, Dr Spear advised:
Mr Croxon reported he could not remember the last time he had socialised. He is independent with his self-care and keeps his home clean and tidy. He does however avoid paying bills ‘I don’t care’. If anyone intruded into his home he stated, ‘I will protect it if anyone comes around’. His interests include his two pet Jack Russell dogs, writing poetry and picture framing.
Under the heading “Drug and alcohol history” (R5, T25 at 127), Dr Spear recorded:
Mr Croxon reported using marijuana on occasion between the ages of 18 and 23 years (during Royal Australian Navy Service). He explained this did not help emotional pain.
He reported using methamphetamine since the age of 33 years. He considers that a form of self-harm because in his case methamphetamine use is often associated with self-cutting behaviour, ‘I enjoyed cutting myself’.
…
He reported he stopped drinking alcohol in 2014 stating ‘I had had enough of this’. He reported he received no treatment to assist him with alcohol withdrawal. He denied subsequent use apart from an occasional drink.
At page 18 of his report (R5, T25 at 128), under the heading “Personal History”, Dr Spear recorded that:
Mr Croxon was born in South Australia. He described a normal childhood apart from having difficulty coping with his parents’ separation when he was 10 years of age. He married between the ages of 23 and 25 years and again between 27 and 30 years, both ended in divorce. He is not close to his two children. He has been single for many years.
In that same report, under the heading “Pre-morbid Personality (perception/concept of self; vulnerabilities, pre-disposing factors)”, Dr Spear noted:
Mr Croxon has been documented to have difficulty sustaining interpersonal relationships. He fell out with his family in 2012, ‘they called me a drug addict’. He reported his mother took an aggravated violence order against him, ‘I’ve never been aggressive against my family’. He described impulsivity explaining he had lost thousands of dollars gambling in the past.
In a letter to Slater and Gordon Lawyers (the Applicant’s former legal representatives), dated 29 August 2017 (R5, T32), apparently in response to a letter from Slater and Gordon dated 29 August 2017 (not included in the documents provided to the Tribunal), Dr Sekhon advised, amongst other things, that:
3.Impairment
a.Yes, he does suffer impairment as a result of his condition. The impairments are in many aspects:
1. Functioning
2. Distress
3. Interpersonal relationships
4. Interpersonal friendships
b.the impairment is likely to continue indefinitely.
…
f.His activities of daily living are significantly impacting on his ability to attend to activities of daily living.
4.Impairment Schedule
a.Ability to receive and respond to incoming stimuli or significant difficulties due to level of arousal/anxiety, cognitive difficulties and hypervigilence (sic), will need supervision/direction, examples are attending to affairs in re: to financial matters.
b.Standing – no impairment
c.Moving – significant difficulties due to his illness. Will need supervision/direction, examples are utilising public transport.
d.Feeding – significant difficulties due to his illness in ensuring regular meals. Will need supervision/direction to ensure regular meals are consumed.
e.Control of bladder and bowel – no impairment.
f.Self-care – significant difficulties due to his illness. Requires supervision/prompting to ensure adequate maintenance of hygiene, i.e., regular showers.
g.Sexual function – no impairment/unable to comment on as Mr Croxon has not been in any relationship whilst under my care. No subjective reporting of impairment in this field.
5.Percentage of Whole Person Impairment (WPI as per Table 5.1 (2005)
In my opinion Mr Croxon’s WPI is 40%. This is based on his symptoms and answers to Question 4.
While not included in a medical report, Slater and Gordon (in a letter dated 31 August 2017 seeking a reconsideration of the Respondent’s determination) advised as follows (R5, T33 at 165):
In addition to the report of Dr Sekhon, my client instructs me that he:
- has significant difficulties in managing his financial affairs, for example attending to mail, paying bills, making administrative arrangements;
- avoids shopping in crowded facilities, is unable to cope with large groups of people;
- becomes flustered in public settings and is afraid that he might react in an inappropriate manner to members of the public;
- has a history of reacting inappropriately to others, including road rage episodes, yelling or otherwise losing his temper and inappropriately hugging acquaintances;
- has sold all of his DVDs and entertainment equipment, as he does not have the patience or attention span to watch movies or enjoy similar pastimes;
- buys food only from his local deli, and limits his diet primarily to rice cream and carnation milk. Is unable to drive to a larger supermarket due to stressors mentioned above;
- Does not eat regularly;
- Is unable to line up or stand in queues;
- Limits his driving to times when he feels he has the necessary patience and attention span;
- Frequently self-harms;
- Often suffers constipation and gastrointestinal distress due to his limited diet;
- Fails to clean his house or attend to self-care activities such as bathing and shaving;
- Does not change clothes regularly or purchase new clothing frequently;
- Has experienced a family break-down and loss of contact with his daughter.
Mr Croxon instructs me that he relies a large degree on:
- His ex-partner, who frequently checks on him and reminds him to shave, bathe, clean and change his clothes;
- A friend, who phones daily and visits on a regular basis, reminding my client to eat, purchase food when necessary and attend t (sic) other basis (sic) matters.
My client has on previous occasions required involuntary admission to psychiatric hospitals.
Dr Spear provided a supplementary report dated 27 April 2018 (R3). He did not re-examine the Applicant for the purpose of preparing this supplementary report. The report was prepared in response to a series of questions posed by the Respondent’s lawyers in their letter dated 13 April 2018 (R2). In response to the question of whether the Applicant continued to suffer PTSD, Dr Spear answered (R3 at 5) that he:
…most likely does continue to suffer from the effects of Posttraumatic Stress Disorder…
However, there is some doubt about his diagnosis. There are inconsistencies in his history especially regarding lifestyle and employment history. Stereotypic nightmares are uncharacteristic of Posttraumatic Stress Disorder and are considered to indicate exaggeration or malingering, which is often associated with diagnoses of personality disorder and substance misuse.
In that supplementary report, Dr Spear confirms that: the Applicant has a permanent impairment arising from his PTSD; it is “most unlikely that the Applicant will return to work in any employment in the future”; and the Applicant’s impairment is stable. In answer to the degree of impairment, Dr Spear responded as follows:
4.5We ask you to specifically consider Table 5.1 of Part 2 of the Guide. Does the applicant have a, ‘need for some supervision and direction’ or a ‘need for supervision and direction’ for his activities of daily living (ADL’s). ADL’s are defined as follows: 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.); and sexual function.
There appear to be considerable differences in reports regarding the Applicant's need for supervision and direction.
There is no evidence that the Applicant has impairment in the following ADLs:
Ability to receive and respond to incoming stimuli
Standing
Control of bladder and bowel
Moving
There is uncertainty about the following ADLs because of conflicting evidence or lack of evidence.
Feeding (includes eating but not the preparation of food)
Self-care (bathing, dressing etc.)
Sexual function
In December 2017 Ms Sara Loriso reported that the Applicant required assistance to eat, which was inconsistent with his report that he was functioning independently in 25 May 2017 and reported to function in November 2017. He did not appear to need assistance with feeding during hospital admissions. I am unable to explain how PTSD would impair Mr Croxon from eating. Therefore, even if he did require assistance with feeding, it appears unlikely that he has a ‘need for some supervision and direction’ or a ‘need for supervision and direction’ regarding his feeding with respect to PTSD.
Ms Sara Loriso reported that the Applicant required assistance to wash and reminders to shower or bathe. Mr John Duffy ensured that the Applicant bathed and wore clothes, and Dr Raj Sekhon reported that the Applicant had severe impairment regarding dressing, bathing and sexual functioning [398], The Applicant did not appear to need assistance with washing or bathing during hospital admissions. In my experience most Veterans with PTSD continue to maintain a daily routine that includes personal care and showering. If Mr Croxton has neglected to bath (sic) or wash, then this impairment most likely relates to personality disorder and substance abuse rather than PTSD. Therefore, it appears unlikely that he has a ‘need for some supervision and direction’ or a ‘need for supervision and direction’ regarding his self-care with respect to PTSD.
Possible loss of libido and erectile dysfunction are common adverse effects of treatment with antidepressant and benzodiazepine medications. Possible loss of intimacy is a symptom of PTSD. Antidepressant medications do not appear to be indicated for Mr Croxon, therefore it would be reasonable to discontinue antidepressant medication under medical supervision. Benzodiazepines could be gradually withdrawn, and most likely his reported impairment of sexual functioning would improve. I am unable to explain how any possible loss of libido, possible erectile dysfunction or possible loss of intimacy, would require the Applicant to have ‘need for some supervision and direction’ or a ‘need for supervision and direction’ regarding his sexual functioning with respect to PTSD.
It is most likely that the Applicant has maintained his interests in writing, design, framing and as a handyman. In March 2017 he was writing poetry and sending emails [337 to 339], which is inconsistent with reports that he was unable to write a simple email.
The Applicant has been noted to have a history of gambling [99]. He avoids paying bills and Mr John Duffy assisted him by paying bills on his behalf. Failure to pay bills is most likely a symptom of personality disorder, rather than PTSD.
There appears to be differing reports regarding his functioning. Although it appears he has become reliant on friends to assist him, it is unclear if he needs any assistance or direction to meet his activities of daily living.
4.6If the applicant has a ‘need for some supervision and direction’ or a ‘need for supervision and direction’ please provide a detailed explanation as to how the applicant's PTSD condition affects each of those ADL’s (sic). When answering this question, we ask you to consider the reports of Dr Sekhon and the Triage forms from Bentley Health Services.
Please see above. I am unable to explain how PTSD affects feeding.
It would be most uncharacteristic of Veterans with PTSD to neglect self-care. If he has neglected self-care, then that would most likely to (sic) because of methamphetamine abuse rather than PTSD.
Loss of libido and erectile dysfunction are common adverse effects of treatment with antidepressant medication. Loss of intimacy is a symptom of PTSD. Antidepressant medication do not appear to be indicated for the Applicant, therefore it would be reasonable to discontinue antidepressant medication, and most likely his reported impairment of sexual functioning would resolve.
4.7You previously assessed the applicant as having a WPI of 10% under Table 5.1. Following review of the enclosed information do you still consider that the applicant suffers a WPI of 10%?
I have only taken the apparent effects arising out of PTSD into account, and not the effects of other mental health conditions, such as, Personality Disorder [393], Methamphetamine Abuse, Attention Deficit Hyperactivity Disorder, Generalised Anxiety Disorder, and Situational Crisis, and adverse effects from prescribed psychotropic medications, which are not indicated for the treatment of PTSD.
On balance, it appears unlikely that the Applicant has a ‘need for some supervision and direction’ or a ‘need for supervision and direction’ regarding his Feeding with respect to PTSD.
On balance, it appears unlikely that the Applicant has a ‘need for some supervision and direction’ or a ‘need for supervision and direction’ regarding his Self-Care with respect to PTSD.
On balance, it appears unlikely that the Applicant has a ‘need for some supervision and direction’ or a ‘need for supervision and direction’ regarding his Sexual Functioning with respect to PTSD.
The Applicant had cognitive distortions (minor disturbances of thinking), and he reported social withdrawal and avoidance of leaving his home (definite disturbance of behaviour).
The Applicant does have loss of control and inability to learn from experience, but these most likely relate to Personality Disorder rather than PTSD.
The Applicant does have severe disturbance of behaviour with episodes of non-fatal deliberate self-harm by cutting and overdoses, and reports of violent behaviour, but these behaviours are most likely symptoms of Personality Disorder and not PTSD.
The Applicant most likely does not require supervision and direction in a controlled environment.
Therefore, the Applicant most likely has 10% WPI under Table 5.1 with respect to posttraumatic stress disorder.
As noted above, the Applicant was admitted to Bentley Hospital on several occasions. Mental Health Triage assessments were produced at the time of those visits. Relevantly the Triage forms noted:
(a)Triage report dated 16 February 2017 (R4)
“Current Functioning and Supports” section notes “Attending to ADLs”;
“Formulation” section notes “William does not have a big support network as all his supports appear to be centred on the DVA as he fell out with his family over what he describes as their stealing of my $500k which he was paid as compensation from his serviceman days”.
(b)Triage report dated 20 April 2017 (R6)
“Current Functioning” section notes “Reports estranged relationship with his carer and his ex after giving them his car last Friday fir (sic) a night but they did not return it until today. He had to scream and yell for them to return it today”.
(c)Triage report dated 5 November 2017 (R4)
“Current Functioning and Supports” section notes “Living alone in small rental. Moved there 9 days ago after living in Jan’s house as a housesitter (sic) for 5 months”.
THE PARTIES’ SUBMISSIONS
The Applicant’s Statement of Issues, Facts and Contentions (A1) prepared by Mr Beacham summarised the Applicant’s case in the following terms:
Our contention is that the determination is wrong in Law, is against the weight of medical evidence, fails to take relevant considerations and evidence into account and fails to properly apply the SRCA Guide to the Assessment of Degree of Permanent Impairment.
…
We also contend that table 5.1 describes William at 40%
Both one of the following, accompanied by a need for supervision and direction in activities of daily living
·Hospital Dischargees who require daily medication or regular therapy to avoid readmission
·Loss of self-control and/or inability to learn from experience causing considerable damage to self or others
We contend that William exceeds the ADL points of 19.
The Respondent, in its SIFC, concedes that the Determination found that the Applicant’s PTSD condition was permanent (R1, paragraph 4.2) but says that information that has since emerged indicates that that may not be the case.
In relation to the issue of the degree of WPI, the Respondent submits (R1, paragraph 4.15);
The Respondent contends by reference to Table 5.1 the Applicant has suffered a WPI of 10%. The Respondent relies on the following in support of this contention:
(a)Dr Spear reported that the Applicant’s WPI assessment is 10% under Table 5.1 on the basis that the Applicant ‘presented with decompensation, overdoses and cognitive distortions, but he has no need for supervision or direction or confinement’ (T25/117).
(b)Dr Spear in his supplementary report dated 27 April 2018 maintains his opinion and reports the Applicant has a WPI of 10%.
The Respondent argues that Dr Spear’s assessment should be preferred over that of Dr Sekhon. The Respondent points to Dr Sekhon’s assessment of 16 March 2017 (R5, T30 at 149) (see [39] to[41] above) of the WPI being 40% on the basis of “[s]everity of condition” and that the only activities of daily living (ADLs) that he reported as being affected were “Self-care (bathing, dressing, etc.)” and “Sexual function” (R5, T30 at 150). Dr Sekhon did not identify any of the other ADLs as being affected by the Applicant’s PTSD. The Respondent argues that “[s]everity of condition” is not an appropriate criterion under Table 5.1 in Part 2 of the Guide. There is, in the Respondent’s submission, no proper assessment by Dr Sekhon based on the required criterion, namely whether the Applicant required supervision and direction in his ADLs.
The Respondent (R1, paragraph 4.16(b)) submits that there are inconsistencies between Dr Sekhon’s 16 March 2017 report and the supplementary report of 29 August 2017 (R5, T32) (see [56] above) in which he reported that the Applicant requires supervision and direction in all of the ADLs except for “Standing” and “Control of bladder and bowel” (R5, T32 at 160). The Respondent further highlights that in that later report Dr Sekhon went on to state that he could not comment on the Applicant’s sexual function because the Applicant had not been in a relationship whilst under his care. That statement in the later report is inconsistent with the statement in the report dated 16 March 2017 in which Dr Sekhon reported that the Applicant suffered “severe impairment in libido” and that his sexual function was affected.
In arguing that Dr Spear’s reports should be preferred over those of Dr Sekhon, the Respondent further argues that Dr Sekhon has relied on the Applicant’s self-reporting in reaching his conclusions and that the reports from Dr Sekhon do not consider the contemporaneous medical records. In particular, the records produced under summons evidence inconsistencies between the Applicant’s self-reporting and the observations made by medical professionals treating the Applicant.
Dr Spear, according to the Respondent, in concluding that the Applicant has a WPI of 10%, has reviewed and considered the contemporaneous medical records produced under summons. The Respondent submits that in circumstances where the Tribunal is presented with a range of opinions the Tribunal should give more weight to the evidence of the independent medical examiner, in this case, Dr Spear. The Respondent refers to the decision of the Deputy President Sosso in D’Amico and Comcare [2018] AATA 54 in which the Tribunal noted:
[53] Further, some caution is required when receiving evidence from a GP who has been treating a person for many years. It is often the case that in such circumstances the bonds of familiarity and friendship subconsciously erode the professional impartiality born of a less familiar and lengthy relationship. It is often the case that a treating doctor falls into error by becoming more of an advocate than a dispassionate professional. This, it should be added, is not a criticism, but simply a reflection of the vicissitudes of human empathy.
The Respondent also refers the Tribunal to the observations in Perich and Secretary, Department of Social Services [2018] AATA 963 (Perich) at [49] in relation to preference being given to the reports which more fully set out the objective basis and evidence upon which the opinion is based, over reports that merely reach a conclusion. It is contended by the Respondent that Dr Sekhon falls into that second category referred to in Perich.
CONSIDERATION
Is the Applicant’s PTSD condition permanent in the sense of being likely to continue indefinitely, and for the purpose of section 24(2) of the DRC Act?
Although this is an issue raised by the Respondent, and the Tribunal agrees that it is an issue on which the Tribunal has to make a finding, it does not appear that the Respondent has seriously disputed that the Applicant’s PTSD is a permanent condition. As noted at [62] above, the Respondent refers to evidence which has emerged since the determination of 19 June 2017 which found that the Applicant’s PTSD condition was permanent which indicates that that may not be the case.
The Respondent refers to the four factors identified in s 24(2) of the DRC Act (see [25] above) to which regard is to be had in determining whether an impairment is permanent. The Respondent points to Dr Spear’s report of 8 June 2017 (R5, T25 at 118) in which he recommended treatment in the form of 6 to 12 sessions of trauma therapy and “ongoing support from treating consultant psychiatrist and general practitioner”. However, Dr Spear on the same page opined that the resultant WPI following the treatment would be the same as the WPI prior to the Applicant undergoing the treatment. Although it is not referred to by the Respondent in its submissions on this point, the Tribunal notes that in that same report of 8 June 2017 Dr Spear identified the Applicant’s PTSD to be “permanent” (answer to question 2, R5, T25 at 115) and “stable” (answer to question 3, R5 T25 at 115).
The Respondent argues, however, that in his supplementary report dated 27 April 2018 (R3) (following review of the records produced under summons), Dr Spear reported that “the Applicant’s impairment is most likely to be stable. However, there is a potential for improvement if he were to engage in a motivational interview and reduce or abstain from methamphetamine abuse”. Dr Spear went on to report that the Applicant had not engaged in psychosocial or vocational rehabilitation and recommended “further psychotherapy for PTSD, if [the Applicant] did abstain from methamphetamine abuse”.
The Respondent also refers to Dr Spear’s comments that treatment could include: trauma therapy, problem-solving and interpersonal therapy; “graded desensitisation to help him overcome avoidance and cognitive behavioural therapy to challenge cognitive distortions”; and de-prescribing medication if appropriate. The Respondent also notes that Dr Sekhon’s report of 29 August 2017 reported that the Applicant was awaiting specialist trauma group counselling at Hollywood Private Hospital.
The respondent identifies the relevant authorities as, firstly Filla v Comcare (2001) 115 FCR 144 (Filla v Comcare) where Katz J stated:
[55] It is my view that par 24(2)(c) of the SRCA raises in substance at least one and possibly two questions for Comcare (or, on a review by the AAT of a decision made by Comcare, the AAT): first, what, if any, reasonable rehabilitative treatment exists for the particular impairment whose permanence is under consideration; and, secondly, assuming that some reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration, has the employee undertaken all of it?
...
[59] If, for instance, reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration and the employee has already undertaken all of it, that is obviously a matter which will tend in favour of the impairment's being permanent.
[62] On the other hand, the employee may be willing to undertake the treatment, but be unable for some reason (say, because of its rationing) to do so for a substantial, though undetermined, period of time. That is a matter which would tend in favour of the impairment's being permanent (remembering that an impairment is ‘permanent’ for present purposes if it is likely to continue for a substantial, though undetermined, period of time).
[63] Another possibility is that the employee refuses to undertake the treatment, even though it is currently available. In that case, it appears to me that if the employee's refusal is likely to continue for a substantial, though undetermined, period of time, then that is a matter which would tend in favour of the impairment's being permanent, regardless of the reasonableness of the employee's grounds for the refusal (and, indeed, regardless of whether the employee has any grounds at all for the refusal).
[64] I do not mean, by what I have just said, to suggest that the reasonableness of an employee's grounds for refusing treatment can have no possible relevance on the permanence question.
On appeal in Comcare v Filla (2002) 115 FCR 163 the Full Court emphasised that:
[13] What is ‘reasonable rehabilitative treatment’ is a question for the Tribunal; any views or comments by the primary judge in the present case, or indeed by this court, are not determinative of the matter, nor of any necessary relevance. The questions of fact are matters for the Tribunal and not for the Court.
The Tribunal is satisfied that the Applicant’s PTSD is permanent. Dr Spear’s report of 8 June 2017 confirms that, in his view, the Applicant’s PTSD was permanent and stable. That also is the opinion of Dr Sekhon. The fact that in his later report Dr Spear raised the possibility, and it is only raised as such by Dr Spear, that if the Applicant were to “engage in a motivational interview and reduce or abstain from methamphetamine abuse” (which the Applicant denies) his condition might improve does not negate his earlier diagnosis of the Applicant’s PTSD as being permanent and stable. Dr Spear in fact confirms in his later report (page 6) that he still considered “the Applicant’s impairment is most likely to be stable”.
The potential that some treatment, only vaguely described, had “potential” to improve the Applicant’s condition does not mean that the Applicant’s condition is not permanent for the purposes of s 24(2) of the DRC Act. The references in paragraph 4.4 of Dr Spear’s report of 27 April 2018 to possible therapies, all of which seem to be of a very generic nature, in answer to the question “Has the Applicant undertaken all reasonable rehabilitation treatment for the impairment?” does not, in the Tribunal’s view, come within the sort of treatment envisaged in Filla v Comcare which would cause the Applicant’s PTSD not to be considered permanent for the purposes of s 24(2) of the DRC Act. The Tribunal accepts Dr Spear’s diagnosis in his report dated 8 June 2017, a diagnosis that was not retracted in any subsequent report or at the hearing, that the Applicant’s PTSD is permanent.
What is the level of the Applicant’s WPI?
As noted at [14] above, the Respondent in its SFIC (R1) submitted that this issue is to be determined giving specific consideration to whether the Applicant requires supervision and direction in his activities of daily living. Counsel for the Respondent in his closing submissions at the hearing put it as follows (transcript, page 56):
We would add submissions that this is a factual question which is essentially one for medical experts to determine and that is whether there is a need for supervision and direction in activities of daily living. And the reason for that, is because the 10 per cent whole person impairment criteria under table 5.1, provides that a person can perform certain activities of daily living without supervision or assistance.
The Tribunal agrees that the above is a fair summary of the case put by the Respondent, namely that the Applicant’s WPI is 10%, but notes that insofar as the Applicant claims a 40% impairment, he must establish the components in Table 5.1 in Part 2 of the Guide for such an assessment.
Given Dr Spear’s assessment of the Applicant’s impairment at 10%, it must be the case that Dr Spear accepts that at least two of the three conditions or symptoms specified in the 10% category of Table 5.1 in Part 2 of the Guide are present. That would, in any event, appear to be the opinion expressed by Dr Spear in paragraph 4.7 of his report of 27 April 2018 (R3 at page 8). Based on the evidence, the Tribunal finds that to be the case in any event.
On the other hand, to establish the Applicant’s claim of a 40% WPI, the Applicant would need to satisfy the Tribunal that on the balance of probabilities (Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; Re LLSY and Minister for Immigration and Citizenship (2011) 121 ALD 630) the elements identified in Table 5.1 in Part 2 of the Guide for a 40% WPI assessment are established.
What then are the elements for a 40% WPI? The first thing that one notices is that the requirements for a 40% WPI in Table 5.1 in Part 2 of the Guide (see [29] above) do not make sense. The opening words “Both one of the following” are oxymoronic. Which is it – “Both of” or “one of”? The cells before and after the 40% cell in Table 5.1 do not provide any assistance. The criterion for a 30% WPI is “Any one of the following” (noting that this is, in itself, an odd phrase given that only two circumstances are listed meaning that the appropriate phrase would have been “either of the following”) and the relevant criterion for a 50% WPI is “One of the following”. Perhaps the best clue as to what is meant is in the corresponding Table 5.1 in Part 1 of the Guide, which relevantly reads “More than one of the following” and then lists the same two circumstances listed in Table 5.1 of Part 2 of the Guide. Even that, however, is an odd term given, that only two circumstances are listed meaning that the appropriate phrase would have been “Both of the following”.
Taking the above matters into account, the Tribunal is of the view that the phrase “Both one of the following” in the 40% WPI cell in Table 5.1 in Part 2 of the Guide is a typographical error and meant to say “Both”.
Dealing firstly with the Applicant’s claim for a 40% WPI, the evidence, both medical and factual, does not establish the criteria. While it is apparent that the Applicant suffers from a severe condition, which has been accepted to be PTSD and establishes that he has been admitted to hospital on a number of occasions, the evidence does not establish that he requires daily medication or regular therapy to avoid readmission. Similarly, while it is clear that the Applicant suffers significantly from interpersonal relationship issues and is unable to maintain a relationship, the evidence does not establish that he has a loss of control and/or an inability to learn from experience causing considerable damage to self or others.
The other element of the 40% WPI criteria is the need for supervision and direction in activities of daily living. While it may be that he does not eat regularly and that on occasion he needs to be reminded to shower (statement of Ms Loriso (A4)), that, however, does not establish a “need for supervision and direction” in his activities of daily living as that term is defined in the Guide (see [30] above). Similarly, while the Applicant may need assistance with buying food and even preparing meals (statement of Mr Duffy (A3)), that again does not get to the level of a need for supervision and direction as required by Table 5.1 in Part 2 of the Guide for a 40% WPI. In that regard the Tribunal also refers to the assessment of Dr Sekhon in his report of 16 March 2017 (R5, T30 at 150) which noted only self-care and sexual function as being affected.
Further the records produced under summons by Bentley Health Service (R4 and R6) do not evidence that the Applicant requires supervision and direction in his activities of daily living. On the contrary, the triage records (see [60] above), particularly the triage record of 16 February 2017, indicate that the Applicant was “attending to ADLs”.
Similarly, the records produced under summons by Sir Charles Gairdner Hospital evidence that the Applicant was admitted to Sir Charles Gairdner Hospital on 29 December 2017, but the records do not evidence that the Applicant required supervision and direction in his activities of daily living. Those records indicate that the Applicant was able to request food when hungry, feed himself, shower and ambulate to the toilet. The records also evidence that the Applicant was able to socialise and ambulate outside to smoke and leave the hospital grounds to visit his dogs and return to the hospital.
Dr Spear’s more detailed and thorough assessment of the Applicant’s WPI contained in his reports, in particular his report of 27 April 2018 (R3), are to be preferred to Dr Sekon’s assessments which do not go into the level of detailed assessment against the criteria of Table 5.1 in Part 2 of the Guide as Dr Spear’s. In the end, the Tribunal must make its decision on the basis of the best or better evidence and, in this case, the better evidence is that of Dr Spear.
While it was not argued by the Applicant, for completeness, the Tribunal is satisfied that the Applicant does not meet any of descriptors required for a WPI assessment of greater than 10% in Table 5.1 in Part 2 of the Guide.
DECISION
The Tribunal is satisfied that the criteria set out in Table 5.1 in Part 2 of the Guide for a 10% WPI impairment have been established. The Tribunal, therefore, affirms the Reviewable Decision dated 6 September 2017.
I certify that the preceding 89 (eighty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
.......[sgd].................................................................
Associate
Dated: 27 November 2018
Date of hearing: 9 September 2018 Advocate for the Applicant: Mr D Beacham Eastern Regional RSL Sub-Branch Representative for the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore Laywers
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