D'Costa and Comcare
[2004] AATA 582
•8 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 582
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/118
GENERAL ADMINISTRATIVE DIVISION ) Re CEDRIC D’COSTA Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr G A Mowbray Date8 June 2004
PlaceCanberra
Decision
1.The Tribunal sets aside the reviewable decision of 31 March 2003 and remits the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal set out in the reasons for decision that
(a) Mr D’Costa’s compensable condition, namely “mild
dysthymia”, has resulted in a permanent impairment under
section 24 of the Safety, Rehabilitation and Compensation
Act 1988 (Cth)
(b) the degree of permanent impairment resulting from the
compensable condition is 10% under table 5.1 of the Guide
to the assessment of the degree of permanent impairment.2. The Tribunal orders the Respondent to pay the Applicant’s
costs as agreed or taxed.
.....SGD GA Mowbray...............................
Member
CATCHWORDS
COMPENSATION – cervicobrachial pain syndrome – mild dysthymia – impairment – permanent – digital dexterity – grasping and holding – reactions to stressors of daily living – minor distortions of thinking – decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4, 24
Comcare v Moon (2003) 75 ALD 160
Re Trajanoski and Comcare [2003] AATA 385
Comcare v Nichols [1999] FCA 209
Comcare v Fiedler (2001) 115 FCR 328
Whittaker v Comcare (1998) 86 FCR 532REASONS FOR DECISION
8 June 2004 Mr G A Mowbray Summary
1. Mr D’Costa, the Applicant in this matter, commenced employment with the Australian Federal Police (AFP) as a civilian Policy Officer in 1989. He first suffered pain in his right arm in the early 1990’s when computers were introduced. The AFP accepted responsibility and he received compensation from Comcare, the Respondent, for an over-use injury in July 1997. From February 1998 Mr D’Costa received compensation for cervicobrachial pain syndrome and right hip/buttock pain for which the AFP once again accepted responsibility.
2. On 4 March 1998 Mr D’Costa sought compensation for anxiety and depression arising out of his working conditions and previous injuries. This claim was rejected and this rejection was affirmed by a reviewable decision of 19 October 1998. In May 1999 Mr D’Costa stopped working and he has never returned to work. Indeed on 13 August 2003 ComSuper informed Mr D’Costa that he was eligible to be paid his superannuation with an invalidity benefit. He had ceased employment formally on 5 June 2000.
3. Mr D’Costa’s claims have been the subject of two previous AAT decisions (A2001/534, A2003/13) reached by agreement under section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) on 7 May 2003
·on 26 October 2001 Comcare reviewed a previous decision of 30 May 2001 and decided that Mr D’Costa was entitled to compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for total incapacity
·under section 16 it was determined that Mr D’Costa could receive medical services compensation for psychiatric treatment for his accepted chronic pain condition and for the cost of two neuropsychological assessments but not for physical therapies or pain management
·in matter A2001/534 the Tribunal made the compensation on-going under section 19
·in matter A2003/13 the Tribunal affirmed Comcare’s decision of 14 January 2003 that Mr D’Costa’s psychiatric condition was mild dysthymia, not chronic depression or anxiety.
4. In May 2001 Mr D’Costa lodged four claims for permanent injury arising out of injuries to his right arm, left arm and spine, and a psychiatric condition. On 4 April 2002 Comcare decided that Mr D’Costa could not receive compensation for impairment. This determination was affirmed in a reviewable decision on 31 March 2003. This matter concerns these claims under section 24 of the Act.
5. I have concluded that Mr D’Costa does have a whole person permanent impairment of 10 percent due to his mild dysthymia. But I am not satisfied that he has a permanent impairment to his right arm resulting from his cervicobrachial condition.
Issues
6. The broad issue before the Tribunal concerns Mr D’Costa’s entitlement to permanent impairment compensation under section 24 of the Act, as determined by the impairment indicators in the Guide to the assessment of the degree of permanent impairment (the Guide) which are binding on this Tribunal pursuant to section 28(4) of the Act. Mr D’Costa has received various types of compensation from Comcare in the form of incapacity payments under section 19 of the Act and compensation for medical expenses under section 16 of the Act for over six years.
7. Both parties agree that
·Mr D’Costa is suffering from work-related injuries specifically cervicobrachial pain syndrome in the right arm
·Mr D’Costa is suffering from the psychiatric condition mild dysthymia which arose out of the pain syndrome
·permanent impairment is being claimed only for the right arm in relation to the cervicobrachial pain syndrome
·the previous claim for permanent impairment arising out of the hip/buttock pain should likewise be not pursued.
8. These concessions are consistent with Mr D’Costa’s reliance on Tables 5.1 and 9.4 and not 9.6 in the Guide. Comcare concedes that this claim is not about whether Mr D’Costa suffered injury in relation to the two conditions mentioned, but about whether they cause him permanent impairment. Consistently with Justice Mansfield’s reasoning in Comcare v Moon (2003) 75 ALD 160 at [31], as Comcare has accepted in a previous decision that the conditions constitute compensable injuries under the Act, there is no need for me to address whether the conditions are work-related. Similarly there is no need to determine whether Mr D’Costa actually suffers from the injuries.
9. The specific issues in this case are therefore
·does Mr D’Costa suffer any impairment to his right arm related to his cervicobrachial condition
·does Mr D’Costa suffer any impairment related to his mild dysthymia
·if so, is this impairment permanent for the purposes of section 24 of the Act
·if so, what is the level of impairment according to the Guide.
The Burden of Persuasion
10. It is generally not appropriate to place a burden of proof on a particular party in an administrative proceeding. However, a burden of persuasion has been established by this Tribunal and the courts. Where a reviewable decision suggests that there is no liability on the part of the respondent for a permanent impairment, the Tribunal must be satisfied on the balance of probabilities that the impairment exists (see Re Trajanoski and Comcare [2003] AATA 385 at [16], Comcare v Nichols [1999] FCA 209 at [23]). An applicant asserting an entitlement to compensation for permanent impairment should produce material supporting the claim. In this matter then the Tribunal as an administrative decision-maker must be satisfied on a balance of probabilities that Mr D’Costa suffers from permanent impairment.
Does Mr D’Costa Suffer Permanent Impairment to His Right Arm
11. Mr D’Costa began to suffer pain in his right hand and arm in 1991 when he commenced constant computer use at work. In 1997 he lodged a claim for overuse injury which was accepted. He experienced on-going difficulties with his work duties because of the pain. As result of swapping to use his left hand for periods of time he soon suffered pain in his left arm too. However, it is on his right side that he says his pain is constant. As I have noted above Mr D’Costa conceded that he was not claiming permanent impairment for the left arm. He left work in 1999 predominantly because of the arm pain.
12. In 1998 Mr D’Costa was found to suffer from cervicobrachial pain syndrome which is a condition in which acute pain is experienced in the upper arm, sometimes spreading down to the hand. There appears to be some dispute as to whether this is a physical or psychological condition. But it has been recognised as a compensable injury in Mr D’Costa’s case.
13. Before suffering the injury Mr D’Costa led a normal life. In the 1980s he built furniture for his home and built an extension to this house. He also kept a vegetable garden and orchard, but now his wife does the gardening. She now also attends to all the housework and household maintenance chores.
14. Mr D’Costa breeds budgerigars competitively. He shows his birds locally and in regional New South Wales. He still has about 300 budgerigars, but says that it is difficult for him to maintain them for competitive use. He cleans out the aviary thoroughly once a year instead of twice, but still manages to clean the breeding cages once a week with a scraper. He might show between three and nineteen birds at a time. Preparation involves plucking feathers from the birds’ necks with tweezers which he finds painful. He therefore prepares one or two birds a day for up to a month before the show. It might take him two weeks now to achieve what he used to achieve in ten minutes.
15. Mr D’Costa said that he has difficulty driving because of the pain of gripping the steering wheel. He can drive up to an hour, but this involves changing hands every 30 seconds or so. He said he has pain in the shower, putting on clothes and putting on shoes. He also found activities such as hammering difficult. He could not grip and use tools repetitively. He mows the lawn one week in three rather than once a week. He has difficulty pruning roses, crutching sheep and putting out the washing. Use of a light industrial chainsaw causes much pain.
16. Mr D’Costa said that he is able to carry the bird cages for shows only a short distance. He can handle four-kilogram feed buckets. He is able to use a small scoop to put the feed in a bucket from feed bags and to vacuum the floor when cleaning breeding cages.
17. The report of psychiatrist Dr William Lucas dated 15 July 2003 which was prepared for a Comsuper claim essentially repeats what Mr D’Costa presented in oral evidence
When driving he has to change hands having one at a time on the wheel. He said he changes every thirty seconds. He tries to have other people drive. … He cannot use repetitive pressure for example with pliers or a screw driver. … He has reduced the number of birds in his aviary who require grooming using tweezers. He cannot do this as before. He constantly drops things including his birds and feed bottles and has altered his grip to avoid this. He can drop eggs.
18. Dr Andrew Brook, a rheumatologist, reported on 1 July 2003 that Mr D’Costa said he had difficulty doing household maintenance because using tools cause him pain. “His driving is restricted to about 20 minutes before symptoms become difficult and oblige him to stop after about an hour.” Dr Joan Chen, a consultant in occupational medicine, reported on 21 May 2003 that Mr D’Costa had told her that “since taking Morphine medication he has been able to apply a firm grip to turn on a tap and open and close the door. He stated that prior to that, he was not able to do this.”
19. Dr Leon Le Leu, an occupational physician, examined Mr D’Costa in May 2002 and reported on
- Grooming: all these activities can cause pain especially in the morning when his medication has not taken effect e.g. raising his right arm to comb his hair or brush his teeth he gets pain in hands, forearms; he also gets pains in his elbow in addition when using the towel to dry himself and pain in the right hand when he turns taps on and flushes the toilet. He also gets pain in the right hand when using cutlery.
·Driving: he finds this very difficult and has to drive one handed and rest each arm after twenty seconds. He only drives locally or, if he has to go interstate, gets someone else to do the driving.
20. On the other hand Dr Chen found in May 2003 that Mr D’Costa
… demonstrated full range of movement in both shoulders, with no complaints of pain and no evidence of impingement. … He demonstrated full range of movement in both elbows with no complaints of pain.
Similarly, Dr Stevenson, in a report dated 10 February 2002 stated that
He has a normal range of movements in his shoulders, elbows, wrists and all of the fingers. When tested for strength, his grip strength appeared a little modestly down on predicted, though certainly not paralytic.
21. I do not have to determine whether Mr D’Costa does in fact suffer from cervicobrachial pain syndrome. It has been conceded that he does. The question at present is whether the cervicobrachial pain syndrome has resulted in permanent impairment. Section 4(1) of the Act provides
"impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function
…“permanent” means likely to continue indefinitely.
22. Section 24 of the Act provides
(1) Where an injury to an employee results in a permanent impairment, Comcare is
liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent,
Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment
for the impairment; and(d) any other relevant matters.
In this case the question is one of “loss of the use … or malfunction” of the right arm due to the cervicobrachial pain syndrome for a long period of time with not much hope of rehabilitation. In these matters, the evidence of the consultants and Mr D’Costa is contradictory.
23. The specialists generally accept that Mr D’Costa can perform self-care independently, although it might cause pain. But other than Drs Brook and Veness they say that he has difficulties with digital dexterity or the ability to grip only very occasionally. Dr Le Leu highlighted the problem facing the Tribunal in his report. He rated chronic depression as of the most concern out of Mr D’Costa’s conditions with “chronic regional pain syndrome” second, but he said
[h]is condition does present diagnostic difficulties in view of the excellent range of his movements and the normal strength recorded. However, the fall off in strength noted by the functional assessment would be consistent with a dystonia and dystonias can be associated with overuse syndrome and regional pain syndrome.
24. Later Dr Le Leu noted
[h]e has an excellent range of movements in all areas examined, good grip strength and good strength in other areas. However, my examination did not test for the effects of repetitive movements over several minutes or hours as might occur in the workplace.
25. The remark about Mr D’Costa’s “excellent range of his movements” is echoed in Dr Brook’s report. Dr Brook found that “[t]here was a good range of movement and no deformity or wasting in the structures of the upper limb”, but pointed out that this would be expected with this condition. On the other hand Mr D’Costa’s difficulties related to repetitive gripping
The problem is one of painful fatigue, that is, activities can only be undertaken for relatively short periods of time. … And he has difficulties grasping and holding, that is, he can’t grasp and hold for very long … after a certain amount of time of grasping and holding, he runs into significant difficulties.
Although Dr Brook did not conduct any gripping, grasping and holding testing, Mr D’Costa’s results on a dynamometer should be near normal despite the pain. Patients with cervicobrachial pain syndrome such as Mr D’Costa also had more difficulty with fine movements than with coarse movements.
26. Dr Brook concluded
In my opinion he will be left with a permanent impairment. Using Table 9.4 the percentage whole person impairment of the upper extremity is the same on left and right sides notwithstanding that the symptoms are more severe on the right. The level of impairment is 20% “can use limb for self care but has difficulties grasping and holding”.
27. Dr Robert Hain, Mr D’Costa’s general practitioner, reported on 31 August 2001 that Mr D’Costa was on morphine for pain relief and was likely to need it for the rest of his life. He also reported decreased grip strength, a tendency to drop things and a difficulty in using implements such as forks. Likewise, Dr Hugh Veness, Mr D’Costa’s treating psychiatrist, said on 19 December 2002
Of course, he is also disabled by pain in both upper limbs. This is a chronic (permanent) condition and so there is permanent impairment. This can be assessed under Table 9.4 (musculoskeletal system). Here, the disability would be at 20%. Mr D’Costa can use both upper limbs for self-care but has difficulties grasping and holding, in addition to the lost digital dexterity in performing on a keyboard. The difficulties in grasping and holding were described by Professor Milton Cohen as focal dystonia.
28. However, Dr Chen reported that
I did not find any evidence that Mr D’Costa has an impairment of his upper limbs… With respect to Table 9.4 of the Comcare Guides, there is 0% permanent impairment, as he is able to use the limb for self-care and grasping and holding, and he has digital dexterity. He is able to use the tweezers to pluck bird feathers but has difficulty sustaining this owing to pain. It is not digital dexterity that prevents this activity, but rather pain in the arms.
29. Dr Chen had tested Mr D’Costa’s handgrip strength three times on each side using a dynamometer. She found “excellent grip strength … and he could grasp and hold … basing it on that … I gave him a zero percent impairment.”
30. Dr Stevenson in a report dated 10 February 2002 stated that
I would expect the pain report will continue for some while yet but would not be lifelong. … As I understand him, he is able to drive, he is able to groom a budgerigar, and he can turn his keys in the ignition of his car and house. All manual tasks that I saw him do were done with facility …. [h]e very clearly had digital dexterity. He was seen clearly to grasp and hold. He described grasping budgerigars and tweezers. He is able to dress and undress with good facility and no difficulty whatsoever. I therefore must conclude there is zero impairment of his upper limbs.
31. Dr Le Leu usefully summarised the findings of doctors to whom Mr D’Costa had gone before May 2002 and he reached the conclusion that
There seems to be almost a consensus on the following issues:
(a) That Mr D’Costa has arm pain
(b) That he has depression and anxiety
(c) That he has an excellent range of movements of all his limbs
(d) That he has good grip strength.
…
Dr Stevenson is the only person to have raised the question of impairment in any detail that I could see. He is right that, according to the standard methods of measurement of impairment, Mr D’Costa has none.
32. This conclusion was reached with the proviso that he finds the Guide inadequate as it does not provide for inability due to pain. The Federal Court has also expressed concern over the drafting of the Guide (Comcare v Fiedler (2001) 115 FCR 328 at [25], Whittaker v Comcare (1998) 86 FCR 532 at 538). Nevertheless in Comcare v Moon (2003) 75 ALD 160 at [46] Justice Mansfield said that restriction of movement as a result of pain could be impairment. At [47] he said “[o]nce the difficulty is found to exist, that the activity is avoided to avoid the experiencing of pain does not make the difficulty any less.”
33. Table 9.4 of the Guide provides
% DESCRIPTION OF LEVEL OF IMPAIRMENT
10 Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity
20 Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding
30 Retains some use of limb BUT has difficulty with self care
40 Cannot use limb for self care
34. Mr D’Costa is claiming that he has permanent impairment to a level of 20%. He has admitted to pain when he is performing acts of self-care, but still manages to perform those acts and is not claiming that he cannot do them. In relation to digital dexterity, Mr D’Costa can catch and de-feather his budgerigars, although with effort and some pain. In terms of “grasping and holding” Mr D’Costa says that he drops things, needs to change hands when driving and has difficulty eating with a fork. However, tests have shown he has normal grip and that his arm muscles are not wasted.
35. In regards to Mr D’Costa’s cervicobrachial pain syndrome I am satisfied that
- Mr D’Costa has suffered from this condition for at least six years and this is likely to continue
- he has retired and it is unlikely that he could go back to work for any sustained period of time
- he has tried many rehabilitative treatments for the pain
- he can use his right arm for self-care although it may cause some pain
- he may experience some pain when using his fingers for fine movements
·he sometimes refrains from repetitive movements involving gripping or holding due to pain.
36. However, I am not satisfied on the balance of probabilities that for the purposes of Table 9.4
- Mr D’Costa has no digital dexterity
- Mr D’Costa has difficulty with digital dexterity
·Mr D’Costa has difficulties grasping and holding.
37. In reaching these conclusions I have had regard to all the evidence before me, noting in particular
- Mr D’Costa’s excellent range of shoulder movement
- his lack of muscle wasting
- his normal grip strength
- his ability to use both fine movement and grasping and holding in caring for his budgerigars
·his ability to undress and dress, to do up and undo buttons easily.
38. Mr O’Donovan from Comcare raised the question of the reliability of Mr D’Costa’s evidence. He asserted that although Mr D’Costa did not lie to the Tribunal he did exaggerate his condition. While Mr D’Costa may have overstated his case as often occurs in these matters the more telling point is that he did not present corroborating evidence which should have been relatively easily to obtain. This is of particular concern in light of the medical evidence which as Mr O’Donovan pointed out provides nothing clinically to suggest that Mr D’Costa has a significant impairment. Furthermore there is much in Mr D’Costa’s evidence which supports the findings I have made.
39. Nevertheless I accept that some of the activities described earlier produce pain, especially when they involve repetitive movements. But on the evidence that pain does not impair Mr D’Costa’s upper limb function, but is rather a consequence of it. In my view the pain is not an impairment going to “activities of daily living” but rather is related to “lifestyle effects”. Justice Mansfield in Moon (2003) 75 ALD 160 at [47] said “In my view, it is a question of fact in each case as to whether pain experienced in activity presents a ‘difficulty’ with that activity, or whether it is simply a consideration going to ‘lifestyle effects’.” Mr D’Costa’s pain and discomfort do not inhibit him from performing daily activities of life.
40. Accordingly I find that Mr D’Costa’s level of impairment under Table 9.4 for his right upper limb is zero.
Does Mr D’Costa Suffer Permanent Impairment from the Psychiatric Condition
41. In 1999 Mr D’Costa was diagnosed with a depressive illness by Dr Hugh Veness, Mr D’Costa’s treating psychiatrist, but this was found not to be compensable. Surprisingly, however, his claim for compensation for treatment of his psychiatric illness was later accepted by Comcare as mild dysthymia but not chronic depression or anxiety. Dr Veness said in oral evidence that dysthymia
is a depressive disorder where there has to be a depressed mood for most of the days, for more days than not in the week, and the person has to have had it for at least two years. And also there has to be a couple more symptoms in addition to the depressed mood, such as poor appetite or over-eating, insomnia or the reverse, hypersomnia, over-sleeping, low energy and fatigue, low self-esteem, poor concentration and feelings of hopelessness.
He said that he would prefer a diagnosis of chronic major depression disorder. Although this disorder and dysthymia overlap, dysthymia develops much earlier in life, in adolescence or in early adulthood.
42. Mr D’Costa describes his pain from the cervicobrachial pain syndrome as contributing to his psychological condition. He said that he has a lot of trouble resolving his pain issues and this was causing chronic depression. Dr Le Leu commented as mentioned above that Mr D’Costa’s pain was now a secondary condition to his psychiatric condition. Mr D’Costa said that he can’t concentrate and has lapses of memory.
43. Mr D’Costa described himself as a hermit. He has lost contact with people and does not have daily or weekly contacts apart from with his family. He had left the ACT Budgerigar Club of which he had been president. Later he agreed that this was due to a disagreement with other members. He joined the Yass Club which he has yet to attend. He is currently president of the South West NSW Club which meets every second month. He is also a member of the Macarthur Club. After describing his feeling of being a hermit to Dr Lucas, he admitted that he had good times
[h]e said that these are probably when someone took him to a bird show and he had talked to people about birds. If there is someone in a car he could chat all day and this was good. However … he was mostly alone and it was hard to distract himself.
44. Mr D’Costa said that he thinks occasionally about committing suicide. Once he put a plastic bag over his head to do so, but then took it off as he did not want to upset his children. He has considered having a car accident and admits that his driving is sometimes “risky”. Dr John Champion, a psychiatrist, said in oral evidence that Mr D’Costa had raised suicide with him.
[H]e had complained he was suicidal on one occasion. He told me he was thinking about crashing his car but he hadn’t done that. He also complained of poor concentration and feeling down and depressed … that would be behaviour indicative of possible depression … as I have commented elsewhere not all people who take their own lives do so on the basis of depressive illness but certainly some do and that’s one of the propositions you’d have to look at very carefully.
45. Dr Lucas, in his report dated 15 July 2003, also commented on suicide. “He has thought of having a motor vehicle accident on the Barton Highway. The concept of death does not worry him.” He went on to say
Mr D’Costa continues to suffer from depression moderated by continuing antidepressant medication. He takes a substantial therapeutic dose of Cipramil. At this stage his symptoms justify the diagnosis of dysthymia, that is chronic depression present most of the time for a period of at least two years. Without antidepressant medication one would expect his condition to deteriorate.
…
Mr D’Costa’s continued need for treatment until the present day, his restrictions and general lack of improvement without dramatic changes in terms of improvement of a two year duration suggest that his current condition provides a reasonable measure of how he was at the time of leaving work, at least in the physical sense. His mental state at the time is likely to have been worse and his anxiety more prominent. His continuing need for substantial antidepressant medication is of note.
…I concluded that his prognosis is guarded with little chance of substantial change in his pain syndrome and with the likelihood of depression requiring treatment for the foreseeable future.
46. Dr Brook, a rheumatologist, said on 1 July 2003
There are also formal depressive symptoms but my experience with chronic pain is that it is often difficult to sort this out from the sleep disturbance which usually accompanies most cases of chronic pain. My impression was that he was not depressed to the point that this was the cause of him leading an unproductive life.
47. To some extent Dr Champion agreed
The development of an elaboration of the complaints of chronic pain into claimed anxiety and depression following 1997/8 changes in the structure of his workplace reflects, in my view, continuing passive aggressive behaviour as a manifestation of the anger, hostility and feelings of injustice associated with the workplace expressed in indirect fashion as a means of obtaining “justice”.
When I examined Mr.De Costa [sic] he complained of depression and gave some symptoms suggestive of significant depression however his presentation was not at all consistent with any level of depression or anxiety or any other form of psychiatric disorder. Mr.De Costa presented as an angry resentful individual seeking compensation with strong feelings of entitlement. At the time that I examined Mr.De Costa I found no indication that he was suffering with any diagnosable psychiatric disorder.
48. Dr Champion noted that Mr D’Costa was able to recite his history and medical complaints without problems. He suggested that this showed that there was no problem of lack of memory. Dr Veness disputed this. He said that being able to recite a history is using old memory
That’s memory which, you know, something he has gone over and over again, no doubt, to many doctors and many solicitors in the past. … It’s not that memory that’s the problem. It’s, as I say, the working memory.
49. Dr Veness made the following assessment in 19 December 2002
[A]s a result of his psychological condition under Table 5.1 of the Comcare tables. I conclude he is 10% disabled.
This is a permanent impairment and I have reached that conclusion because his condition complies with the following two criteria:
(1) Reactions to stressors of daily living with loss of personal and social efficiency. In
his case it is more than “minor”.
(2) There are minor distortions of thinking due to the effects of chronic depression
and anxiety.
50. Rather contradictorily he had previously assessed Mr D’Costa’s impairment as 25% under Table 5.1 when reporting to Comcare in 2001. In oral evidence Dr Veness conceded that Mr D’Costa’s condition had substantially improved since May 2001 and that Mr D’Costa was able to perform activities without supervision. Dr Veness suggested that the anti-depressant drugs and psychotherapy sessions were assisting Mr D’Costa. Mr D’Costa is on a high dose of Cipramil for his depression at present and Dr Veness said that he certainly wouldn’t consider raising it higher. Due to the combination of problems with Mr D’Costa – physical pain and depression suffered over an extended period of time – on the balance of probabilities his condition had stabilised and was unlikely to improve any further.
51. Dr Veness gave oral evidence that Mr D’Costa’s reactions to stresses of daily living included
·difficulties concentrating for an extended period of time
·problems retaining things in his working memory
·difficulties with remembering a sequence of things and dual tasking
·problems with processing information from memory and making decisions
·low energy and easy fatigability.
52. For minor distortions of thinking he referred to Mr D’Costa’s lack of hope. Mr D’Costa tended to see things in a very pessimistic light as though they were inevitably going to go bad. Dr Veness said that although there was scope for improvement in this area, he could not confidently predict it.
53. Dr Veness relied in part for his conclusions on the psychometric assessment of psychologist Dr Tom Sutton who concluded in February 2001
1. Reasoning processes are intact.
2. There is direct data evidence that he is not exaggerating visual (and other)
memory difficulties.
3. He is demonstrating a definite significant decline in visual and spatial memory.
This is moderate to severe in comparison to expected levels.
4. Sustained attention, dual tasking, working memory and speed of processing
information from immediate memory are poor.
5. The cause/s are likely to be a combination of his chronic pain, depression/anxiety
and medication regime …
6. There are sufficient cognitive compromises to indicate that work efficiency will be
severely disrupted.
54. In contrast as Dr Champion had found that Mr D’Costa had no diagnosable psychiatric disorder, he reported a zero degree of permanent impairment under Table 5.1. In particular he was unable to discern any problem with memory or concentration.
55. Once again it is not up to this Tribunal to determine whether Mr D’Costa has a psychiatric condition. It has been conceded that he has as all psychiatrists apart from Dr Champion have found. The question is whether his condition has made him permanently impaired and if so to what level. Table 5.1 of the Guide provides
% DESCRIPTION OF LEVEL OF IMPAIRMENT
0 Reactions to stressors of daily living WITHOUT loss of personal or social efficiency AND capable of performing activities of daily living without supervision or assistance.
5 Despite the presence of ONE of the following is capable of performing activities of daily living without supervision or assistance
· reactions to stressors of daily living with minor loss of personal or social efficiency
· lack of conscience directed behaviour without harm to community or self
· minor distortions of thinking
10Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance
· reactions to stressors of daily living with minor loss of personal or social efficiency
· lack of conscience directed behaviour without harm to community or self
· minor distortions of thinking
56. Comcare accepts that Mr D’Costa has to take anti-depressant medication and is clearly suffering from a depressive illness, but submits that the medication “ameliorates his symptoms to the point where he does not satisfy the requirements of 10%.” However, the very fact that Mr D’Costa has to take high doses of anti-depressant medication and has had to take such medication for at least four years shows that his psychiatric condition is on-going and affecting his daily life. As quoted above Dr Lucas suggests that without the medication his condition would deteriorate. Dr Le Leu suggested that Mr D’Costa’s pain was related to his psychiatric condition and was the real reason why he could not work.
57. Mr D’Costa’s depression has been present for quite a long period of time. For a diagnosis of dysthymia the patient has to have suffered from the symptoms for more than two years and the symptoms must be on-going. Dr Veness has given evidence that Mr D’Costa, while having improved since 2001, will not improve a great deal more. Dr Lucas predicted his depression would require treatment for the foreseeable future. Dr Champion suggested that Mr D’Costa did not “present” as a depressed person. Therefore he found that Mr D’Costa probably was not depressed to the extent that there would be no improvement. However, he did admit that if Mr D’Costa had certain symptoms that other psychiatrists have agreed he had, then he would diagnose him with depression. Mr D’Costa has been for psychotherapy sessions, he attends sessions with a psychologist and has had other rehabilitative treatment. He has thus undertaken reasonable treatment to help the condition, but this has not resulted in great improvements, except for the improvement that Dr Veness noted from 2001. I am therefore satisfied that Mr D’Costa’s condition is permanent, that is it is likely to continue indefinitely.
58. In my view
·Mr D’Costa suffers from a depressive psychiatric condition that requires a high dose of anti-depressants
·nonetheless he still displays “symptoms suggestive of significant depression”
·he has considered self-harming behaviour such as a car crash or suicide on a number of occasions
·he is more limited in what he can do in day to day life as a result of his depression. For example he cannot read the newspaper for long, cannot concentrate on daily activities, does not perform any work around the house and does not even tend his budgerigars as much
- that condition is permanent.
59. The evidence before me supports a finding on balance that Mr D’Costa is permanently impaired as a result of his depressive condition, accepted as a mild dysthymia, that impairment being 10 percent
·Mr D’Costa is capable of performing daily activities without supervision or assistance
- indicators of minor loss of personal or social efficiency due to reactions to daily stress include difficulties in concentration, with his working memory, in processing information, dual tasking and decision-making; and low energy and fatigue
·he experiences minor distortions of thinking, especially hopelessness.
60. I prefer the evidence of Dr Veness to that of Dr Champion as
- Dr Champion alone amongst the psychiatrists assessed Mr D’Costa as not suffering a psychiatric illness. Psychiatrists Drs Fitzgerald, Veness, Glaser, Rose, Donsworth and Lucas at various times all found Mr D’Costa to have a depressive illness
- psychologist Dr Sutton’s psychometric tests supported Dr Veness on a critical element going to impairment
- Dr Veness is Mr D’Costa’s treating psychiatrist having seen him many times since June 1999. Mr D’Costa was examined by Dr Champion only on one occasion for about an hour and a quarter
·Dr Champion’s report was tainted by significant diversions volunteering his views on physical conditions, something on which his advice was not sought and which was not within his specialist expertise.
61. For these reasons I find that Mr D’Costa suffers a 10 percent whole person permanent impairment under Table 5.1 due to his mild dysthymia and accordingly is entitled to compensation under section 24 of the Act.
Conclusions
62. In summary I conclude that
·Mr D’Costa has suffered from cervicobrachial pain syndrome for at least six years and this is likely to continue
·he can use his right arm for self-care although it may cause some pain
·he may experience some pain when using his fingers for fine movements
·he sometimes refrains from repetitive movements involving gripping or holding due to pain
·I am not satisfied that he has no digital dexterity or has difficulties with digital dexterity, nor that he experiences difficulties with grasping and holding
·his level of impairment under Table 9.4 for his right upper limb is therefore zero
- he suffers from a depressive psychiatric condition accepted as a mild dysthymia
·that condition has led to a permanent impairment
- he is capable of performing daily activities without supervision or assistance
·he experiences reactions to daily stressors, with minor loss of personal or social efficiency, and minor distortions of thinking
·he thus suffers a 10 percent whole person permanent impairment under Table 5.1 due to this mild dysthymia.
Decision
63. The Tribunal sets aside the reviewable decision of 31 March 2003 and remits the matter to Comcare for reconsideration with a direction to give effect to my findings set out in these reasons that Mr D’Costa has a whole person permanent impairment of 10 percent under Table 5.1 of the Guide due to his mild dysthymia. The Tribunal orders Comcare to pay Mr D’Costa’s costs as agreed or taxed.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray.
Signed: ............SGD.Kelisiana Thynne...........................
AssociateDate of hearing 11 &12 December 2003
Date of decision 8 June 2004
Counsel for the Applicant Jane Godtschalk
Solicitor for the Applicant Bill Redpath,
Pamela Coward & Associates
Counsel for the Respondent Damien O’Donovan
Solicitor for the Respondent Kate Arnold
Australian Government Solicitor
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