Dean Applicant And: Military Rehabilitation and Compensation Commission
[2010] AATA 388
•25 May 2010
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/4816
General Administrative Division )
Re: Daniel Dean
Applicant
And: Military Rehabilitation and Compensation Commission
RespondentDIRECTION
TRIBUNAL: Professor RM Creyke, Senior Member
DATE: 28 May 2010
PLACE: Canberra
DIRECTION:
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application made on 25 May 2010 as follows:
the words ‘costs be apportioned in accordance with s 67(9) of the Act’ should read ‘costs be ordered in accordance with s 67(9) of the Act’.
............................[sgd]...........................
Professor RM Creyke, Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 388
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4816
GENERAL ADMINISTRATIVE DIVISION ) Re DANIEL DEAN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date25 May 2010
PlaceCanberra
Decision The decision under review is set aside and remitted to the Commission. ...................[sgd]...................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Whether Applicant had one or two conditions – whether Applicant’s conditions are ‘permanent’ – whether whole person impairment assessment under the Guide should be higher – what are appropriate scores under Division 2 of the Guide for non-economic loss – meaning of ‘some supervision and direction in the activities of daily living’ - whether Applicant’s conditions caused by non-employment factors – whether Applicant’s overpayment debt should be waived – decision under review set aside and remitted.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 24, 28, 113, 114, 114B, 114D
Canute v Comcare (2006) 226 CLR 535
Comcare v Nichols [1999] FCA 209
Commission of Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery [1993] 32 ALD 147
Commonwealth v Borg (1991) 20 AAR 299
Commonwealth v Muratore (1978) 141 CLR 296
Re Emery and Commission of Safety, Rehabilitation and Compensation of Commonwealth Employees (1992) 15 AAR 477
Jordan and Australian Postal Corporation [2007] FCA 2028
McDonald v Director-General of Social Security (1984) 1 FCR 354
Phillip v Commonwealth (1964) 110 CLR 347
Re Sat and Comcare [2004] AATA 334
Telstra Corporation v Arden (1994) 20 AAR 285
25 May 2010 REASONS FOR DECISION
Professor RM Creyke, Senior Member 1. Mr Daniel Dean enlisted in the Australian Army on 10 December 1990 and was discharged on 21 August 1992 on medical grounds.
2. Mr Dean has been incapacitated for work since his discharge. He is now 42 years of age. Liability was accepted under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for ‘minor annular tear of the L5/S1 disc resulting in degenerative changes at the L4/L5 and L5/S1 level’ with effect from 10 June 1991. Subsequently, liability was accepted for conditions of chronic adjustment disorder, pain disorder and major depressive disorder.
3. The Military Rehabilitation and Compensation Commission (the Commission) initially decided on 21 April 2009 that Mr Dean was assessed as having a whole person impairment of 15 per cent under Table 5.1 of the first edition of the Guide to the Assessment of the Degree of Permanent Impairment (approved Guide) for his chronic adjustment disorder only. That decision was affirmed on reconsideration.
4. On 15 June 2009 on further reconsideration, the delegate varied the decision to assess whole person impairment of 15 per cent for major depressive disorder and pain disorder instead of chronic adjustment disorder.
5. Mr Dean sought further review by the Tribunal on 1 July 2009.
Legislation
6. The relevant provisions of the Act are sections 4, 24 and 28, referred to later. Provisions relating to the recovery of an overpayment are, as relevant, section 114 which establishes that overpayments of compensation are debts and are recoverable, and section 113 which provides that if a person is entitled to an amount of compensation, the overpayment may be recovered directly from the compensation amount. Section 114B states that these provisions apply to a retired employee. Section 114D provides that the Commission may waive a debt but ‘must act in accordance with directions from time to time in force’. The relevant direction which came into force in 1992 was revoked by the Minister and has not been replaced. The discretion to waive debts is administered by the Commission in accordance with existing policy and procedures described as Comcare Operational Advice 98/001.[1] The policy states that criteria to waive are based, but not exclusively, on:
· error by Comcare, payment received in good faith by the debtor and any other reasonable grounds to support waiver. This may include, but not be limited to, cases of severe financial hardship; or
· exceptional circumstances… ‘exceptional’… may include: a serious or terminal illness; or the recovery process not being cost effective.[2]
[1] The Commission is to consider the criteria in the Operational Advice when using its discretion to waive a debt.
[2] JO Ballard & P Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (8th ed, 2007) 637.
Issues
7. The following are the issues:
·Whether Mr Dean's conditions are permanent?
·Whether the assessment of whole person impairment under the Guide for one or more of Mr Dean’s conditions should be higher than 15 per cent?
·What are the appropriate scores under Division 2 of the Guide for any non-economic loss suffered by Mr Dean for all or any of his accepted conditions?
·Whether Mr Dean is entitled to a further payment of compensation and, if so, the amount of the additional compensation?
·Whether the Commission was entitled to deduct an overpayment of incapacity payments from an award of lump sum compensation?
·Whether some or all of the deduction of the overpayment should be waived?
Background
8. On 10 June 1991, Mr Dean slipped and fell in a tunnel while carrying a log during training on service. He felt a sharp pain in his back and was subsequently diagnosed as having a ‘minor annular tear of the L5/S1 disc resulting in degenerative changes at the L4/L5 and L5/S1 level’. Since then he has undergone extensive treatment with no improvement in his back. He underwent a further operation on his back on 10 February 2010. Despite the treatment and the latest operation, he has been left with chronic recurring back pain.
9. Mr Dean made a claim for rehabilitation and compensation for his back condition on 10 August 1992, which was accepted on 30 December 1993. He commenced receiving incapacity payments for the condition.
10. Subsequently, on 14 July 2006 Mr Dean’s solicitors requested that liability be extended to ‘include a sequelae psychological injury’. On 27 August 2006, Mr Dean made a request to the Commission that he ‘be assessed for pain and suffering and the mental anguish resulting from the continued misdiagnosis of my compensable injury and the resulting mental condition that this has caused’. On 2 March 2007, liability was extended to include ‘chronic adjustment disorder’. On 8 April 2009, liability was substituted and described as ‘pain disorder and major depressive disorder’.
11. On 23 March 2007, Mr Dean sought a lump sum compensation for permanent impairment. The application was deferred until 10 January 2008 on the ground that Mr Dean’s condition may not have been permanent since he had never been treated for his depression.
12. On 21 April 2009, Mr Dean was awarded $47,280.92 as a lump sum payment of compensation for his accepted chronic adjustment disorder based on an assessment of 15 per cent whole person impairment under Table 5.1 of the approved Guide. That amount comprised $22,559.43 for permanent impairment under section 24 of the Act, and $24,721.49 for the non-economic loss component under section 27 of the Act. From that amount $38,051.25 was deducted for the overpayment of superannuation benefits, leaving Mr Dean some $9,229.67. That decision was affirmed on reconsideration on 15 June 2009.
13. On further reconsideration of an own motion decision on 30 September 2009, the Commission varied the decision of 21 April 2009 to clarify that the lump sum compensation for 15 per cent whole person impairment was made for the conditions of major depressive disorder and pain disorder.
14. Mr Dean was also in receipt of invalidity benefits under the Military Superannuation and Benefits Scheme (MSBS). Initially, the invalidity benefits were set at Class C. However in July 1996, following an application by Mr Dean, his benefits were increased to a Class B rating and made retrospective to 22 August 1992. Class B invalidity payments must be offset against incapacity payments. The consequence was that an overpayment arose with the retrospective payment of Mr Dean's benefit at the Class B level.
15. In 1992, when his initial incapacity claim was accepted, Mr Dean received a covering letter and an 'Information Leaflet' that he needed to advise the Department of Veterans’ Affairs (the Department) if he received a benefit from the Commonwealth. ‘Benefit’ was described to include a benefit under the Defence Force Retirement and Death Benefits scheme. Subsequent letters to Mr Dean from the Department concerning his compensation advised that he must notify the Department if he received ‘any payments or a change in the rate of payment from any other source’.[3] On 4 March 1993, the Defence Retirement and Death Benefits Authority (the Authority) advised the Department that Mr Dean was not in receipt of a ‘benefit’. In 1995 Mr Dean authorised the Commission to provide information to the Defence Force Retirement and Death Benefits Authority.
[3] Eg letter of 3 September 2002.
16. In 2005, following a data matching exercise and advice from the Authority on 8 February 2005 that Mr Dean had been in receipt of a superannuation benefit since 1996, backdated to 1992, the relevant agencies realised that an overpayment had occurred. On 23 February 2005, Mr Dean was advised accordingly and an overpayment of $50,715.84 was raised. Recovery of the overpayment commenced by means of regular deductions. On 24 August 2006, Mr Dean requested the overpayment be waived under section 114D of the Act. On 10 January 2008, the Commission rejected the request.
Evidence of Mr Dean
17. Mr Dean said he enrolled in a university course in 1995 but did not continue with study. Before joining the Army in 1992, he worked variously as a shop assistant, a labourer and in billboard advertising. In the Army he was mustered as a rifleman but trained as a paratrooper and hoped to join the Special Air Services Regiment. His injury during his service prevented him doing so.
18. Since his medical discharge from the Army, Mr Dean attempted to set up a business in 2004 making T-shirts, designing logos and posters, developing DVDs and websites, and producing videos, but the business failed. Mr Dean invested $15,000 in the business and only recently finished repaying his creditors. He is currently unemployed. In 2005, he was advised that he had received overpayments over the past 13 years. Initially, he was required to repay the debt at $100 a fortnight, but now it is reduced for financial hardship reasons to $20.00 per fortnight. The debt contributed to his inability to maintain his business.
19. Mr Dean said in or around 2005 he lived in his car for a period of 18 months as he had no money. For a while he also lived in a friend’s caravan. He said he prefers to live in a shack on the Dalgety plains in NSW, which has a toilet, electricity and a limited supply of water. When living in the shack, he has heating, burning wood logs to keep warm, a doona and his two dogs. The shack has no internet access and if he requires medical treatment or shopping for food it costs him $60.00 for petrol to travel from Dalgety to Berridale.
20. At the time of the hearing Mr Dean was renting a room from a friend in Jindabyne, NSW. Mr Dean says he is doing this because it is physically difficult for him to get around. He has an arrangement with someone to do the shopping for him. Six weeks prior to the hearing, he had an operation for a disc rupture and nerve damage in his back. The result of the operation was that his scoliosis is no longer as bad, but there has not been a significant reduction in pain. He said that while he was in Jindabyne he would like to use the swimming pool for exercise.
21. Mr Dean said that prior to his time in the Army he was a sociable person and took better care of himself. Now he has little interest in spending time with people or his appearance. He bathes once or twice a week. In Jindabyne he tries to walk at least once a day but spends the rest of the day watching television or using the internet.
22. Mr Dean said that between 1997 and 2002 he was ‘doing fine’. He was managing his pain well with a combination of meditation, traditional Chinese medicine and occasional use of cannabis, by nebuliser. During hospitalisation in 1994, Mr Dean was prescribed painkillers such as pethidine and morphine and he said once he had left hospital it was difficult to manage his pain without analgesics. He started using cannabis at a party about a year or two after his discharge from the Army and found it gave him pain relief, so he resorted to cannabis for pain relief after his hospitalisation using it 2-3 times a week. However, he said he could often go for months without. At the hearing he said he had not used it for some time, not least because he cannot afford it.
23. Mr Dean’s pain management regime was effective until 2002. At that time, Mr Dean became angry with the Department because of their errors in describing his conditions despite his corrections, his struggles between 2002 and 2008 to receive compensation for his conditions, and administrative errors such as the failure by the Department to identify his overpayments sooner. He believed these administrative errors were an attempt to downgrade the seriousness of his conditions. He was also angered because the Department sent the fraud investigators to check on him around 2003-2004, unjustifiably as it turned out. His complaints included the Department neglecting to pay an outstanding bill of $1,000.00 for his acupuncture treatment, which meant he was, for a time, unable to access such treatment. Following interventions from Dr Tahmindjis in 2007, payment for acupuncture twice a week was restored.
24. He said raising the overpayment of $38,000.00 and deducting the amount from his lump sum compensation was ‘the last straw’. He said he had no way of knowing the Department was overpaying him and was distressed with the Department’s aggressive recovery of the overpayment. As a consequence, he became a founding member of the Injured Persons’ Service Association (IPSA) from 1994 for people who are dissatisfied with their treatment by the Department and he believes this too may have prejudiced the Department against him. Mr Dean says his anger and frustration coupled with his chronic depression rule his emotions and dominate his thinking and magnify his perception of pain.
25. Mr Dean said he was not on anti-depressants for his depressive disorder because he has little faith in such drugs and he has a firm belief that to do so would cloud his mind and cause him to ‘flatline’, or become docile. He says it would prevent him from expressing what he believes is his justified anger for the mismanagement of his case. He also does not like the idea of being medicated for life, nor of mixing painkillers with anti-depressants. In addition, he knows of people in Jindabyne who were on anti-depressants and who suicided, and this also deters him from accepting such treatment.
26. Mr Dean said since 2002 he has become increasingly anti-social. That is why he prefers living in the shack in Dalgety since it would only be his few trusted friends who would come to see him. He has had no relationship since 2003, after a girlfriend of 3-4 years left him because he had become obsessed about his claim. He has not had sexual relations since then. He cannot go more than 5 minutes without thinking about the Department and his perceived injustice. He says he gets angry with most people and finds it difficult to deal with them. He only trusts 2-3 people. As he said in a communication in November 2008, he 'cannot relate to anyone anymore. All I do is sit at home/car and leave once a fortnight to get supplies'.
27. Mr Dean said for a long time no attempt was made to assist with his rehabilitation. Although a program was developed in 2004-2005, it was suspended at the end of 2006 and discontinued in January 2007. It was his case manager, a psychologist, who suggested he begin the T-shirt business.
28. Mr Dean confirmed that his psychological condition was more taxing than his physical pain. His psychological condition made it difficult for him to meditate and hence relieve his physical pain. Four to five years ago, he was managing his condition but now his anger and frustration prevent him doing so. His psychological conditions mean he suffers loss of concentration, lead to obsessive thoughts, make him feel sad and anxious and lose sleep. His chronic pain is constant and makes him depressed.
29. In relation to the criteria for non-economic loss he said he stands by the statements made in the Tribunal documents. For example, his pain is ‘continuous and severe’, as his physical pain is worse than it was 3 years ago. For ‘suffering’ he would now tick the top box, that is, ‘Constantly focussed on condition’. For ‘loss of amenities’, his social functioning is also worse since his physical conditions and his psychological conditions markedly restrict his functioning. He rarely leaves the house except for his daily walk.
30. For ‘social relationships’ he says he is ‘no longer comfortable in social situations, dislikes meeting new people, generally does not drive and becomes increasingly uncomfortable the further he is from home.’ He also noted that the debt of $38,000 due, he says, to mistakes by the Department, has left him ‘a very bitter and angry man.’ As a consequence he said ‘I keep to myself, I have not had a relationship for over 3 years, most if not all of my relationships since my discharge ended because of these emotions.’
31. Under ‘recreation and leisure activities’, he says he was formerly a natural athlete, but he is now unable to undertake any sport and cannot even watch sport any longer. Under ‘Other loss’ he said he finds his pain harder in the cold weather and tends to be less active because his joints stiffen.
Medical Evidence
32. Dr Alex Tahmindjis is a general practitioner and a fellow of the Australian Council of Psychological Medicine. He provided general counselling to Mr Dean between 2003 and 2007, before he retired from practice. In a report of 23 February 2006 he diagnosed ‘significant depression with insomnia’ and said ‘I believe also that he has elements of paranoid personality traits’, a comment which he later retracted. He also said ‘I believe he is unfit for any full-time work. I think he can undertake part time work that is under his own control…. I cannot envisage him working for an employer’. His prognosis was ‘very guarded’ but he did say ‘if [Mr Dean] feels he is not in conflict with [the] department, and he is receiving reasonable compensation for his injury, it will remove that layer of anger and concern he has’. He added that Mr Dean’s acupuncture treatment was ‘most helpful’ and said he had not prescribed any medication.
33. In a report dated 11 June 2006, Dr Tahmindjis said Mr Dean is extremely depressed, which he associated with his continuing pain, disability and feelings of persecution by the Department. At that time, Mr Dean’s request for payment for acupuncture had been refused and Dr Tahmindjis endorsed the continuation of that treatment.
34. Dr Tahmindjis provided a further report for Mr Dean on 24 January 2010, although he acknowledged he had not seen Mr Dean since 2007. He maintained his view that Mr Dean’s prognosis was poor and his depression would continue indefinitely. He noted Mr Dean’s refusal of analgesic medication and said he believed it was ‘completely justifiable’ as the possibility of alleviating his symptoms with anti-depressants was ‘not high’. He assessed Mr Dean’s level of impairment at 27 March 2007 as 25 per cent under Table 5.1 due to his depth of depression and suicidal thoughts. He said Mr Dean’s condition might improve if he undertook further cognitive behavioural therapy but doubted there were doctors in Mr Dean’s region that could provide the necessary treatment and support. He also agreed that Mr Dean’s rehabilitation would not be possible until his medical and psychological issues were resolved.
35. Dr Karl Lashchuk’s report on 5 October 2004 noted that Mr Dean ‘has an entrenched hostile attitude to the Department of Veterans’ Affairs’. He also concluded that from a psychiatric perspective Mr Dean was employable but the prognosis for his successful rehabilitation to an appropriate area of employment was poor. He concluded that Mr Dean’s current level of incapacity was likely to continue indefinitely.
36. Dr John Saboisky, consultant psychiatrist, saw Mr Dean on 14 December 2006 and considered his paranoid feelings were a manifestation of his adjustment disorder. He also said it was ‘improbable that there will be significant improvement with pharmacotherapy’ because Mr Dean was not keen to take medication. He regarded Mr Dean’s conditions as permanent. At the hearing, when asked what assessment he would have given under Table 5.1 for Mr Dean’s impairment, Dr Saboisky nominated 10 per cent, a view he maintained after reading the reports of other medical experts. He said he would have provided his assessment in 2006 on the basis that Mr Dean did not need supervision because he was capable of performing activities of daily living without assistance. In 2006, Dr Saboisky found Mr Dean to be well-kept rather than dishevelled, as described by others since. He also noted that Mr Dean’s living conditions could well have been a matter of his volition rather than a symptom of his medical conditions. At the same time, he acknowledged that if someone is suffering severe depression this can have volitional effects. He noted that cannabis can worsen depression by between ten to twenty per cent, depending on the quantities inhaled.
37. Dr Rodney Farnbach, consultant psychiatrist, saw Mr Dean and provided a report on 10 July 2007. In his view, Mr Dean’s principal condition was his depression. He noted that Mr Dean’s depression and his pain disorder interact ‘and it is extremely unlikely that he will ever recover from his pain disorder, as long as he is depressed’. He considered the prognosis for improvement in Mr Dean’s pain disorder symptoms would be reasonable or good, but noted that Mr Dean had a long history of rejecting medical treatment. He said Mr Dean would continue to have back pain but did not have to have persisting pain disorder. He recommended a referral to a psychiatrist for treatment, and possibly to a pain clinic or rehabilitation service. He did not consider that Mr Dean had a permanent impairment.
38. At the hearing, he noted that anger or a sense of injustice is not a dominant symptom of depression. He said, however, that the sense of injustice or paranoia can be a consequence of cannabis smoking which is relatively common. The likely effect of Mr Dean’s smoking cannabis on his depression would be ‘to make the depression worse’ but he conceded whether this was the case would have been surmise in relation to Mr Dean. He also confirmed that he had no direct experience of treating people with dependency on cannabis.
39. In relation to Table 5.1, although it was some years since he had used the table, Dr Farnbach observed that if a person is significantly depressed their choices are not as free as others and their depression can cause distorted thinking. He agreed that Mr Dean’s behaviour towards himself was harmful and that he qualified for an assessment at either the 15 per cent or the 20 per cent level. During cross-examination, Dr Farnbach agreed that Mr Dean did meet all three criteria and could therefore merit an assessment at 25 per cent. When asked whether he could give a separate assessment for the pain disorder or the major depressive disorder, he noted the two did not exist separately and that each influences the other. For example he said that Mr Dean’s ‘marked disturbance in thinking’ was caused by both conditions. He said it was arguable that Mr Dean could be assessed at 25 per cent for each condition.
40. Dr Zoltan Zsadanyi, consultant psychiatrist, provided reports on 5 November 2008, 6 February 2009, 2 April 2009, 19 January 2010, and 24 March 2010. In his 5 November 2008 report, Dr Zsadanyi diagnosed major depressive disorder either chronic or of a recurrent nature. This related to Mr Dean’s chronic pain in the back following his fall during service. In Dr Zsadanyi’s opinion the physical pain and the depression were linked. He noted that Mr Dean was not on anti-depressants but was open to being prescribed such medication once the issues with the Department had resolved. However, at that stage he doubted anti-depressants would make any impact on his mood. Dr Zsadanyi said Mr Dean had developed high levels of mistrust with people and living the way he did helped him avoid contact with people. Dr Zsadanyi said Mr Dean’s conditions precluded him from any form of employment and it was unlikely that he was employable. He assessed Mr Dean’s depressive illness as permanent. He noted of Mr Dean that there ‘has been a strong element of self-neglect due to his depressive illness. He is not eating regularly and, therefore, he has decreased his weight which further impacts on his energy levels’. He said that Mr Dean ‘had previously found the more regular appointments that he had … with [Dr Tahmindjis] quite helpful’, referring to the good rapport Mr Dean had with Dr Tahmindjis until the doctor retired. He also noted that it would, ‘at present’ be ‘unreasonable and highly unfeasible’ for Mr Dean to pursue a medical or vocational rehabilitation program. Dr Zsadanyi assessed Mr Dean as having a whole person impairment of 15 per cent for his major depressor disorder, but that this could be reduced to 10 per cent by further medical or rehabilitative treatment.
41. In his supplementary report of 6 February 2009, Dr Zsadanyi confirmed that Mr Dean’s pain disorder was a ‘significant factor’ in the development of his depressive illness. Other factors were his struggle to get compensation for his back condition, his financial difficulties, his chronic unemployment, and having no fixed abode. However, he assessed the contribution of Mr Dean’s original injury to his depressive illness as between 50 – 75 per cent, with the remaining 25 per cent as having resulted from the compensation claims process. Dr Zsadanyi also confirmed that his earlier whole person impairment assessment of 15 per cent for Mr Dean’s major depressive disorder encompassed his pain disorder. However, when asked to differentiate, Dr Zsadanyi assessed the level of whole person impairment for each of the major depressive disorder and the pain disorder at 15 per cent.
42. In a report dated 2 April 2009, Dr Zsadanyi further clarified his assessment and noted the 15 per cent rating required need for ‘some supervision and direction in the activities of daily living’. He noted that Mr Dean had no one to provide such supervision and direction, but said that the reasons he lives alone are ‘primarily due to his chronic pain condition which developed after his original injury’, coupled with his lengthy claims process, and his depressive illness. Dr Zsadanyi also noted, under the criterion of self-care, Mr Dean’s almost total lack of social contact and his living in a state of neglect. Further, he noted Mr Dean’s sexual functioning was impaired, which met the criterion for sexual dysfunction and finally noted that his condition was stable and there was no justification for forcing him to take anti-depressant medication.
43. In his supplementary report of 19 January 2010, Dr Zsadanyi confirmed that Mr Dean’s symptoms were ‘chronic, entrenched and permanent’ and that there was little likelihood of his condition improving with psychological intervention or pharmacotherapy, but said a pain management program might be of assistance, although he doubted there would be benefit from a rehabilitation program. In his opinion, Mr Dean’s level of impairment would not improve even if he were to undertake such programs.
44. In his final report dated 24 March 2010, Dr Zsadanyi addressed a series of questions relating to the effects on mental functioning of long-term cannabis use. However, in response to the question of whether such use by Mr Dean had contributed to any of his permanent impairments, Dr Zsadanyi said that although cannabis use ‘may have contributed to permanent impairment’, based on ‘the chronicity of [Mr Dean’s] case and the long duration since the original injury I do not consider it possible to estimate the percentage contribution of permanent impairment attributable to marijuana use’.
45. Dr Christopher Canaris, consultant psychiatrist, provided two reports. In the first, dated 29 March 2008, Dr Canaris concluded that Mr Dean suffered pain disorder coupled with chronic major depressive disorder. He considered the condition to be permanent and doubted that Mr Dean would benefit from anti-depressants, given the entrenchment of his condition. He assessed Mr Dean’s whole person impairment as 25 per cent:
given evidence of obvious impairment in activities of daily living which ordinarily would call for some level of supervision and direction (he is homeless and neglects his appearance and self care) with evidence of reactions to stressors of daily living causing modification of daily living patterns, marked disturbances in thinking, and definite disturbances in behaviour.
46. In his second report dated 25 November 2009, Dr Canaris responded to a report provided by Dr Zsadanyi and affirmed that chronic pain was an ‘overwhelming aspect’ of Mr Dean’s conditions, a matter which he said was not given sufficient weight by Dr Zsadanyi. He also adhered to his assessment of whole person impairment of 25 per cent, as compared with Dr Zsadanyi’s 15 per cent because he said Dr Zsadanyi had given insufficient attention to aspects of Mr Dean’s impairment such as ‘reactions to stressors of daily living which cause modification of daily living patterns; marked disturbances in thinking; and definite disturbances in behaviour’. Dr Canaris said he had encountered ‘few if any patients with more grossly dysfunctional interactions with the world around him or equally inability to cope with their disability’, and noted examples of ‘clear evidence of marked disturbances in thinking’ and of behaviour. In summary, Dr Canaris concluded that Dr Zsadanyi and he had made ‘similar observations’ of Mr Dean and made ‘essentially identical diagnoses’. The principal difference was in the level of whole person impairment.
47. At the hearing, Dr Canaris said he has seen quite a number of patients who used cannabis. He acknowledged that there was a body of literature which accepted that cannabis was a ‘reasonably good pain ameliorative’ drug. At the same time, he said that ‘heavy, regular use’ could have an adverse effect on depressive disorder, but that Mr Dean’s use as described was unlikely to fall into the category of ‘heavy, regular use’. He also said cannabis use could not account for a depression like Mr Dean’s.
48. He said Mr Dean’s pain disorder and major depressive disorder were permanent and having a condition for at least two years is regarded as the benchmark for a person’s condition being intractable. While he said he would have preferred that Mr Dean tried anti-depressant medication, he did not consider an anti-depressant would be useful for Mr Dean since having a condition for some time makes a condition more resistant to treatment. He said the brain becomes fixed in a particular modality and, in his opinion, use of tricyclics masks rather than reduces symptoms. He confirmed that Mr Dean’s ambivalence about pharmacological treatment would hinder attempts to get him to take the anti-depressants. He also said that Mr Dean’s views about the medication were understandable and were not ‘whacky or idiosyncratic’, but based on reality.
49. He doubted whether access to supervision would assist Mr Dean, at least while the adversarial situation between Mr Dean and the Department continued. He said that Mr Dean would not sufficiently trust people to allow him to accept supervision or direction and he noted that from a practical perspective the NSW mental health system did not have the capacity to provide such assistance in the region in which Mr Dean resides. He assessed Mr Dean’s pain disorder as meriting an assessment of at least 15 per cent under Table 5.0 and 20 per cent under Table 5.1, given his disturbed behaviour and marked disturbance in his thinking. For major depressive illness Dr Canaris assessed Mr Dean’s condition at 25 per cent whole person impairment.
50. In relation to the questions in the non-economic loss questionnaire for ‘pain’ he nominated the last box for both disorders, for ‘suffering’ the second-last box for pain disorder, and the last box for major depressive illness. For ‘loss of amenities’ he nominated box 3 for both conditions, for ‘recreational and leisure activities’ he nominated box 5 for chronic depressive disorder and box 6 for major depressive disorder. Finally, he nominated box 2 for both conditions for ‘Other’. Under cross-examination he conceded that it was artificial to separate the two conditions since, in his opinion, the two were synergistic.
51. When questioned in cross-examination about the impact of cannabis use on Mr Dean’s depressive disorder, Dr Canaris said he was unwilling to give an opinion, not least because the only history of use was from Mr Dean, and there was no evidence of dosage, strength, quantity, or frequency of use. Dr Canaris also noted that Mr Dean’s limited means would restrict the quantity of cannabis he could buy. He acknowledged that paranoid views can be produced by cannabis, but this would only be in cases where there was evidence of daily smoking, several times a day, when these effects would be a distinct possibility. Dr Canaris also said that although it is common to regard people like Mr Dean as having adopted a lifestyle from choice, his view was that Mr Dean’s depressive condition and distress took him out of the ‘volitional’ category. Mr Dean’s evidence was that he was not doing things which were a source of pleasure for him, and his Army training and discipline would support this view.
52. Dr Griffith, consultant surgeon, assessed Mr Dean in January 2007 as having a 25 per cent whole person impairment. His assessment has not been included in the evidence provided to the Tribunal but is referred to in several of the other medical reports.
Consideration
53. This appeal concerns the quantification of the compensation payable for an injury claimed to have resulted in permanent impairment. Mr Dean has two relevant ‘injuries’, namely, his pain disorder and his major depressive disorder, albeit they are synergistic.[4] The two injuries, on the evidence, also lead to separate impairments. Mr Dean’s pain disorder impairs his ability to sit, to bend, to stand, and to lift and on occasions his cognitive ability; whereas his major depressive disorder adversely affects his mental functioning.
[4] Canute v Comcare (2006) 226 CLR 535.
54. Section 24 of the Act is concerned with compensation for economic loss arising out of an impairment. ‘Impairment’ is defined broadly in section 4(1) as meaning ‘the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system of function or part of such system or function’. Section 24(1) provides that where an injury to an employee results in a permanent impairment, the Commission is liable to pay compensation to the employee in respect of the injury. ‘Employee’ is taken to include a former employee (sections 4(1), 5(9)).
55. Section 4(1) of the Act defines ‘injury’ to include an injury suffered by an employee, being a mental injury arising out of or in the course of the employee’s employment. Mr Dean’s two conditions are accepted as falling within the meaning of ‘injury’. Section 24(2) provides that for the purpose of deciding whether an impairment is permanent, regard should be had to the duration of the impairment, the likelihood of improvement in the employee’s condition, whether the employee has undertaken all reasonable rehabilitative treatment for the impairment, and any other relevant matter.
56. The Commission is to decide the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide (section 24(5)), and the degree of impairment is to be expressed as a percentage (section 24(6)). Section 28 of the Act provides that the Guide is to set out criteria by reference to which the degree of the permanent impairment of any employee is to be assessed. The Guide is binding on the Tribunal (section 28(4)).
Whether Mr Dean's conditions are ‘permanent’?
57. Dr Tahmindjis, the practitioner who had seen Mr Dean most regularly and with whom Mr Dean had the best rapport, considered the prognosis for Mr Dean was poor and that his depression would continue indefinitely. He did not believe that anti-depressants would alleviate his symptoms, nor that any rehabilitation program, even if available in Mr Dean's region of New South Wales, would be effective until his medical and psychological issues were resolved. This view was shared by Dr Lashchuk, whose report in 2004 was that Mr Dean's level of incapacity was permanent. Dr Saboisky also believed his incapacity would continue indefinitely, as too did Dr Canaris and Dr Zsadanyi. Although Dr Griffith's evidence was not provided to the Tribunal, his assessment of a level of whole person impairment indicates he must have considered Mr Dean's conditions as permanent given this is a pre-requisite to any such assessment.
58. Dr Farnbach did not consider the conditions were permanent, although he concurred with the view that while Mr Dean was depressed his pain disorder would continue. In the face of Mr Dean's refusal of medical treatment, his need for a psychiatrist, and possibly a pain clinic or rehabilitation service, Dr Farnbach said his conditions would continue. In that context the Tribunal notes the difficulty of accessing services of these kinds in the region, a difficulty which Dr Zsadanyi indicated made it ‘unreasonable and unfeasible’ for Mr Dean to pursue a medical or vocational rehabilitation program.
59. In the report of Mr Paul Hitchen, orthopaedic surgeon, who examined Mr Dean on 23 September 2002, summarised in the attachment to Dr Lashchuk’s report, Mr Hitchen said in view of Mr Dean’s long history of pain, which had been resistant to a variety of conservative treatments, the pain 'could well be permanent'. He doubted that rehabilitation would be effective. In his opinion, 'the possibilities of this improving at this late stage and in particular of his returning to any form of open employment are remote because of the well-established illness behaviour he clearly demonstrated at this time and probably has been demonstrating over many years'.
60. The overwhelming medical evidence enables the Tribunal to find that Mr Dean's condition is permanent. That does not preclude the possibility of some relief in his symptoms should Mr Dean agree to take anti-depressants at some stage and undergo a pain management program. But these possibilities, for practical reasons and in the face of Mr Dean's attitude to taking medication, appear at present to be remote.
Whether the assessment of whole person impairment under the Guide for one or more of Mr Dean’s conditions should be higher than 15 per cent?61. There is less uniformity among the medical experts as to Mr Dean's assessment of whole person impairment for his conditions under Table 5.1 of the Guide. Nor did all the experts provide such an assessment. Even when an assessment was provided, it was only at the hearing that separate assessments for Mr Dean’s pain disorder and his major depressive disorder were provided by witnesses.
62. A preliminary issue is the date of injury for Mr Dean’s conditions. This must be determined in order to decide whether it is the first or second edition of the Guide which should be applied. The Tribunal notes that Mr Dean's back injury occurred in 1991 and the medical reports, particularly those annexed to the report of Dr Lashchuk, indicate he has suffered pain since then, although when a condition developed which was capable of being described as a pain disorder, that is, a disorder with no organic source, is not clear. The Tribunal finds, however, that at some point between 1991 and 1 March 2006, when the second edition of the Guide became operative, Mr Dean’s pain disorder developed.
63. Mr Dean said of his depressive disorder that he was fine until 2002, when his condition deteriorated due to conflict with the Department. Mr Dean had also commenced seeing Dr Tahmindjis for counselling in 2003, so the conditions must have been apparent at that stage. That puts the date of injury prior to 1 March 2006 so that the first edition of the Guide applies to his claim for this condition also.
64. Psychiatric conditions are covered by Table 5.1 of the Guide. That Table refers to the Glossary which defines the activities of daily living against which a major part of the assessment of psychiatric impairment is made. Page 3 of the Guide, under the heading ‘Principles of Assessment’ and after setting out the meaning of ‘impairment’ states:
[Impairment] relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality. Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.
Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person. The measure of ‘activities of daily living’ is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.
65. The Glossary in the Guide states of ‘activities of daily living’:
Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
Ability to receive and respond to incoming stimuli; standing; moving; feeding; eating (includes eating but not the preparation of food); control of bladder and bowel; self care (bathing, dressing etc); sexual function.
66. For levels of impairment of 15, 20 and 25 per cent, Table 5.1 requires the person to be incapable of performing activities of daily living without ‘a need for some supervision and direct’. The indicators for each level of assessment are:
15 per cent, any one of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stressors of daily living which cause modification of daily patterns
· marked disturbance in thinking
· definite disturbance in behaviour
20 per cent, any two of the following accompanied by a need for some supervision and direction in activities of daily living:
·reactions to stressors of daily living which cause modification of daily living patterns
· marked disturbance in thinking
· definite disturbance in behaviour.
25 per cent, all of the following accompanied by a need for some supervision and direction in activities of daily living:
·reactions to stressors of daily living which cause modification of daily living patterns
·marked disturbance in thinking
·definite disturbance in behaviour.
'Need for some supervision and direction'
67. 'Supervision' and ‘direction’ are not defined. In Re Emery and Comcare[5] the Tribunal concluded that ‘some’ in the expression ‘some supervision and direction’ means ‘any amount at all, even the very minimum’. The Tribunal in Emery also reached the following conclusions on the interpretation of the requirement of a 'need for some supervision and direction in the activities of daily living':
The first is that to find ‘some supervision and direction in ADL [activities of daily living] was needed’ there is no requirement that all, or most, or any one of the particular functions listed in the glossary definition have been adversely affected. Another conclusion is the term ADL is not limited to the basic mechanics of an activity but due weight must be given to the psychosocial aspect of the function ie the inability to stand may be impaired because one cannot stand straight, or stand still or stand around or even stand by without some supervision or direction.[6]
[5] Re Emery and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees (1992) 15 AAR 477 at [15] (per Senior Member Beddoe, Dr Urquhard and Member Brennan).
[6] Id, at [24].
68. This statement was expressly upheld on appeal by the Federal Court,[7] subject only to the need to avoid the ambiguity in relation to the phrase ‘any one of the particular functions listed in the glossary definition’.[8] The Court said that ambiguity could be avoided by redrafting the phrase in effect to read ‘any particular one of the functions’.[9]
'Need'
[7] Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery [1993] 32 ALD 147 at [18] and [24] (per Spender J).
[8] Id at [151].
[9] Ibid.
69. In Re Sat and Comcare[10] the Tribunal said:
the reference to ‘need’ in the higher [15 per cent or above] level indicates that there is a requirement for some supervision and direction and the reference to ‘direction’ … connotes some form of instruction, and a more intensive involvement than might be entailed in the concept of assistance.
[10] Re Sat and Comcare [2004] AATA 334.
The statement is ambiguous in that it does not clarify whether 'need' means someone must be receiving supervision and direction, or whether 'need' is capable of referring to a requirement which is nonetheless not being satisfied. Does 'need' require, as Dr Saboisky said, that there be: 'someone there to push him into the shower and to physically comb his hair'?
70. The Tribunal is conscious of the need for consistency in its decisions. Nonetheless, the Tribunal must also make the correct or preferable decision. In that regard, the Tribunal notes the comment by the medical experts in Re Sat that ‘the concepts involved in the Guide were difficult to apply in assessing a psychiatric condition’. That comment is apt in relation to Mr Dean’s circumstances and highlights the need for a more flexible interpretation of ‘need’ than that possibly suggested in Re Sat.
71. As the medical evidence indicates, and the Tribunal accepts, the very nature of Mr Dean’s psychiatric condition means he is distrustful of most people, adopts a hermit’s lifestyle, and is unlikely as a consequence to accept ‘supervision and direction’, even if such supervision or direction were available in the region of NSW in which Mr Dean lives. In other words, if the criteria for assessment at the 15 per cent or above level were to apply to Mr Dean, 'need' must be capable of being interpreted as 'requires' but not necessarily 'receives'. Such an interpretation is available relying on the Macquarie Dictionary which gives one meaning of ‘need’ as some ‘want exists’[11]. That is, ‘need’ can be a ‘call for some level of supervision and direction’ (Dr Canaris’ words). In adopting that meaning, the Tribunal considers that it could not have been the intention of Parliament in approving the Guide that someone might not be able to be appropriately assessed under the higher levels of assessment in Table 5.1 because of the very condition which caused the need for the assessment, or if for practical reasons, no supervision or direction was available.
[11] Macquarie Dictionary (2nd ed, 1991) 1190.
72. Mr Dean has a need for some supervision and direction in the activities of daily living, taking into account that the relevant measure as stated in the Glossary is a measure of primary biological and psychosocial function and that the measurement of impairment is to be made against ‘its effect on personal efficiency in the 'activities of daily living' in comparison with a normal healthy person’.
73. Evidence of this need is available from a number of sources. The first is the lifestyle Mr Dean has adopted. Counsel for the Commission argued that his hermit style existence was a matter of volition. This view was, however, doubted by most medical experts. The majority were of the opinion that Mr Dean’s medical conditions and obsessive focus on his treatment by the Department so clouded his thinking and influenced his lifestyle that it prevents him benefiting from rehabilitation and treatment until these matters were resolved. In other words, his thinking and his ability to make decisions about himself was not that of a ‘normal healthy person’.
74. Dr Saboisky for example, said his severe depression had adverse ‘volitional effects’. Dr Farnbach said depression could cause distortion of thinking. Dr Canaris said ‘he had encountered few if any patients with more grossly dysfunctional disturbances’ in thinking and behaviour. He also noted in evidence to the Tribunal that Mr Dean’s depressive condition and distress took him out of the ‘volitional’ category and that Mr Dean’s lifestyle was not a source of pleasure for him. Dr Zsadanyi pointed out that the reason he lived alone was primarily due to his chronic pain condition, the lengthy claims process, and his depressive illness.
75. That need was also demonstrated by Mr Dean’s regular reliance on Dr Tahmindjis for counselling sessions and support from 2003 and assistance in having his acupuncture treatment reinstated in 2007. By early 2007, Dr Tahmindjis’ counselling was provided every fortnight, but prior to then more frequently. There was also evidence that for the two years prior to October 2008 Mr Dean saw his GP on a regular basis for ‘support/pain management'. Other support he received was his reliance in 2003 to 2005 on his case manager who identified the idea for and assisted with setting up his business. At the hearing, Mr Dean also said he was currently living in Jindabyne because it meant he had someone to assist him with shopping for food.
76. Mr Dean's needs have changed over time. Mr Dean said his depressive condition became pronounced some time in 2002 and was compounded in 2005 when he became advised about the overpayment. However, Dr Saboisky noted that when he saw Mr Dean in 2006 he did not appear to be in need of supervision and direction. He contrasted this with reports in 2008 and subsequently by other psychiatrists, which described Mr Dean’s dishevelled appearance and apparent lack of attention to personal care, indicating deterioration in his self care in the intervening years.
77. In light of these views and having observed Mr Dean at the hearing, the Tribunal finds that he has a need, in the sense of a ‘want’ for, supervision and direction, albeit he is not actually receiving such supervision and direction on a day to day basis.
78. The Tribunal has also assessed his needs in relation to the specified criteria for the activities of daily living.
Ability to respond to incoming stimuli
79. The evidence indicates that Mr Dean's ability to receive and respond to incoming stimuli is impaired, but only to a minimal extent. Mr Dean has adequate communication skills, although he complains that he has thought disturbance and he loses his train of thought, which affects what he says. Dr Zsadanyi noted his 'speech was mildly pressured' and his 'thought form was disorganised'. Dr Canaris, too, suggested Mr Dean exhibited 'some disturbance in thinking'. For the most part, the Tribunal found Mr Dean was able to focus on questions and provide coherent answers at the hearing, but he did lose his train of thought on occasions. Mr Dean also says he can no longer meditate because his difficulties with the Department intrude to such an extent that he cannot think of other things for more than 5 minutes. This also inhibits his interaction with other people. His girlfriend left him some three to four years ago because of this obsession.
Standing and moving
80. Mr Dean's back condition and recurrent pain inhibit his physical activity. He tries to walk daily and would like in time to swim while he is in Jindabyne. However, he is no longer able to participate in sport and says he can not even watch sport on TV. His evidence was that formerly he was what he described as a 'natural athlete' who 'excelled in many areas of sport'. Mr Dean has a restriction on weights of more than 10 kg and he cannot sit for periods of more than 45 minutes and is prevented from doing much bending or standing in one position for long. Mr Dean claims his conditions have inhibited his travelling time so that he needs to take breaks. Equally his social phobia inhibits his mobility. However, he remains capable of being independently mobile.
Feeding
81. Mr Dean is capable of feeding himself although he has, at times, had difficulty with psychosocial aspects of eating. In 2007, Dr Tahmindjis reported that Mr Dean told him he was living in a shed without power and that life, including presumably feeding himself, was very difficult. During 2008, Mr Dean spent a considerable amount of that year living in his car with no toilet or cooking facilities so that, as Dr Zsadanyi reported, he ate canned food and cooked over an open fire. Dr Zsadanyi also noted there has been ' a strong element of self-neglect' and '[he] is not eating regularly'. Dr Zsadanyi noted that Mr Dean’s appetite was poor, and he had lost weight.
Control of bladder and bowel
82. There is no evidence that Mr Dean has any difficulty with control of his bladder or his bowels. The only reference to a need for assistance is in the report of Dr Hume, on 15 October 2003, that ‘occasionally [Mr Dean] needs help in cleaning his bottom after he has defecated'.
Self care (bathing, dressing, etc)
83. Mr Dean has difficulty with self care. He bathes only once or twice a week, and although he was dressed casually but appropriately for the Tribunal hearing, reports of medical specialists described him variously as 'of unkempt appearance with a prominent Rastafarian (dreadlock) hairstyle' (Dr Lashchuk); Mr Dean's ‘grooming was unkempt and his clothes bore evidence of a lack of laundry facilities' (Dr Farnbach); 'shabbily dressed, casually clad, and slightly malodorous with hair in dreadlocks' (Dr Canaris); 'He has lived in squalor in his car. ... He lives in a state of neglect where he infrequently bathes or dresses himself effectively' (Dr Zsadanyi, 16 October 2008). Dr Saboisky noted in 2006 that 'he is able to self-care although he said his place is a mess and he does not wash or clean the house as frequently as he might'.
84. Both Dr Zsadanyi and Dr Canaris noted Mr Dean had attempted to harm himself on occasions. Additionally, Mr Dean’s sleep is broken, he finds it difficult to get to sleep, and he gets about a maximum of three to four hours’ sleep a night due to his pain and his inability to stop ruminating about his problems.
85. The Tribunal finds that Mr Deane is capable of managing some aspects of his personal care to a minimal level. However he has broken and limited sleep and there have been periods when he has self-harmed and when he was living a hermit-like existence in his car when his self care was grossly deficient.
Sexual function
86. The evidence accepted by the medical experts and the Tribunal is that Mr Dean's sexual functioning is impaired and that since his girlfriend left him some 3-4 years ago he has no sexual inclination.
Level of impairment
87. Most medical practitioners who provided an assessment did so on a global basis, without differentiating between Mr Dean’s two conditions. At the hearing, however, counsel for Mr Dean asked witnesses to provide an assessment for both his pain disorder and his major depressive disorder. Some separate assessments were provided, notwithstanding that the universal view of the experts was that the two conditions were synergistic.
Cause of Mr Dean's conditions
88. A preliminary issue was the cause of Mr Dean's conditions. Counsel for the Commission argued that the disturbance in thinking and behaviour were due principally to Mr Dean’s cannabis usage, rather than his accepted conditions.[12] This argument required acceptance of the principle that the Tribunal was not bound by the earlier findings by the Commission accepting liability for Mr Dean’s pain disorder and major depressive disorder.[13] The burden of persuasion on this issue fell on the Commission.[14]
[12] Jordan v Australian Postal Corporation [2007] FCA 2028 at [35].
[13] Telstra Corporation v Arden (1994) 20 AAR 285; Commonwealth v Borg (1991) 20 AAR 299; Comcare v Nichols [1999] FCA 209.
[14] Phillip v Commonwealth (1964) 110 CLR 347; Commonwealth v Muratore (1978) 141 CLR 296 and for burden of persuasion generally in tribunals, McDonald v Director-General of Social Security (1984) 1 FCR 354.
89. There is evidence of Mr Dean’s reliance on cannabis for self-medication. Dr David Burke, consultant rehabilitation physician, in his report of 15 October 2003 noted ‘[Mr Dean] smokes marijuana, though not every day and usually only … when he feels he “needs it”’. Dr Paul Hitchen, orthopaedic surgeon, in his report of 25 September 2002, refers to Mr Dean as being a ‘chronic marijuana user’ to ‘dull the pain’. Dr Zsadanyi on 16 October 2008 reports Mr Dean as saying he had not used cannabis in the last six months for financial reasons. Previously he had used cannabis once or twice a week for pain relief and to lighten his depression. Dr Farnbach's report of 26 June 2007 states Mr Dean as saying he had not smoked cannabis for several weeks.
90. When questioned at the hearing about the impact of cannabis usage on depression, Dr Saboisky agreed it can worsen depression by between ten to twenty per cent but this depended ‘on quantities inhaled’. Dr Farnbach, while acknowledging his lack of experience with patients that use cannabis, agreed that using cannabis could make depression worse but said ‘this was surmise in relation to Mr Dean’. Dr Canaris agreed that cannabis usage could have an adverse effect on depressive disorder, but only if someone was a ‘heavy, regular user’, which he believed was not the case for Mr Dean and in any event, he said such usage would not account for the kind of depression experienced by Mr Dean. Dr Zsadanyi said long-term cannabis use could affect mental functioning but it was not possible in Mr Dean’s case to estimate the percentage contribution.
91. The Tribunal notes that Mr Dean gave evidence that there were periods when he was using cannabis two to three times a week for pain relief, but that he had significantly reduced his usage for financial reasons. He said he had either not used his cannabis inhaler at all during the last six months or had done so only 2-3 times within the last year. Even assuming some under-disclosure, the Tribunal notes that Mr Dean lives on about $400 per week, $200 of which is used to pay rent for his Dalgety Plains shack and his accommodation in Jindabyne, $100 of which is used to purchase cigarettes, leaving only $100 for food for himself and his two dogs. This supports his assertion that he cannot afford regular use of cannabis as well.
92. In the absence of probative evidence as to the quantities and regularity of Mr Dean’s use of cannabis and in light of evidence which indicates that ‘heavy, regular use’ is needed before usage is likely to have an effect on mental functioning, and given that for financial reasons it is unlikely that Mr Dean’s use is ‘heavy’ or ‘regular’, the Tribunal is not persuaded to find that the predominant cause of Mr Dean’s depressive condition is his cannabis use.
Level of assessment: major depressive disorder
93. Dr Tahmindjis assessed Mr Dean’s level of whole person impairment at 25 per cent. No distinction was made between Mr Dean’s two psychological conditions. This assessment was based on Dr Tahmindjis’ assessment of Mr Dean prior to his retirement in 2007. Dr Griffith, in January 2007, also provided a single assessment for Mr Dean of 25 per cent. The Tribunal notes this assessment although Dr Griffith was not called to provide evidence at the hearing. At the Tribunal, Dr Farnbach who initially did not consider Mr Dean’s condition was permanent, was prepared to find, using the Guide, that his conditions could be assessed at 25 per cent. He did not distinguish between his pain disorder and his major depressive disorder. Dr Canaris initially provided a global assessment of 25 per cent but at the hearing allocated 25 per cent to his major depressive disorder, and at least 20 per cent to his pain disorder. Dr Zsadanyi was only prepared to nominate 15 per cent for both conditions, a view not changed at the hearing. Dr Lashchuk, in a report in 2006, considered the assessment, on a global basis, should be at most 10 per cent.
94. The Tribunal considers there is evidence that Mr Dean’s level of impairment, due to ‘reactions to stressors of daily living’, have caused modification of his daily living patterns as evidenced by his social isolation, hermit lifestyle, lack of self care, and the obsessive thoughts which dominate his behaviour. Mr Dean has become increasingly withdrawn socially since 2002. By 2008 he indicated he was 'uncomfortable around most people' although he has a few friends, and that he found 'it hard to even go to the shop let alone go out socially'. His lifestyle is one of occasional solitary walks accompanied only by his dogs either on the Dalgety Plains, or in Jindabyne, and interrogation of the internet. There is overlap between this criterion and the remaining two criteria, but these facts indicate Mr Dean clearly has marked disturbance in thinking and definite disturbance in behaviour. His behaviour and thinking are aberrant as measured against a person with a ‘normal healthy lifestyle’.
95. On balance the Tribunal finds, based on the predominant medical evidence and its own findings that Mr Dean’s level of permanent impairment for his major depressive disorder meets the criteria of 25 per cent under the Guide.
Level of assessment: pain disorder
96. In relation to Mr Dean's pain disorder, Dr Farnbach was prepared to assess 25 per cent, Dr Canaris would have allocated at least 20 per cent for the pain disorder, Dr Zsadanyi 15 per cent, and Dr Lashchuk, 10 per cent. Doctors Tahmindjis and Griffith provided a global assessment only of 25 per cent. Dr Lashchuk’s report was provided in 2004 so does not reflect the current position.
97. In his report of 24 January 2010, Dr Tahmindjis noted that the Commission ‘accepted 15% rather than 25% impairment on the basis of the impairment being potentially reduced by treatment’. The Tribunal notes that Mr Dean underwent a further operation on his back in February 2010 which has not alleviated the pain symptoms. The Tribunal also notes that Mr Dean’s conditions have developed and not been resolved over a period of nineteen years so that it is unlikely they will be alleviated quickly or at all.
98. The predominant medical view is Mr Dean’s pain disorder is so closely allied with his major depressive disorder that the pain disorder is not resolvable without resolution of the depressive disorder. Given the entrenched nature of his depressive illness, the prognosis for resolution of the pain disorder is poor. On the basis of this evidence, and given the evidence of the unlikelihood of the NSW Mental Health service having sufficient capacity to treat the condition of someone like Mr Dean, the Tribunal finds that the assessment for his pain disorder should also be set at 25 per cent.
99. If the Tribunal is in error in attempting to apportion the impairment between the two conditions,[15] the Tribunal makes a finding that Mr Dean is entitled to 25 per cent for both conditions in combination.
What are the appropriate scores under Division 2 of the Guide for any non-economic loss suffered by Mr Dean for all or any of his accepted conditions?
[15]Jordan v Australian Postal Corporation [2007] FCA 2028.
100. There was little evidence at the hearing on this issue. Mr Dean completed a Non-Economic Loss Questionnaire on 20 March 2007[16] and 11 April 2008,[17] and a further Permanent Impairment and Non-Economic Loss Questionnaire on 16 October 2008. At the hearing, Mr Dean said he stood by the statements he had made in March 2007 for the most part. However, for ‘pain’ he would now tick the highest box, that is, his pain is ‘continuous and severe’. For ‘suffering’ he would also now tick the highest level box, that is, ‘Constantly focused on condition’. For ‘loss of amenities’ he would tick the same box. For ‘social relationships’, the box would remain at the highest level, albeit he regards his social functioning as worse. For ‘recreation and leisure activities’ he did not nominate an alternative box, although the worsening of his social functioning impacts on this criterion also. Finally under ‘other loss’ he notes that his body now feels stiffer in winter.
[16] T-27.
[17] T-36.
101. At the hearing, Dr Canaris responded to questions on the non-economic loss questionnaire and nominated the highest level of pain for both of Mr Dean’s conditions, and for suffering he nominated the second highest box for Mr Dean’s pain disorder and the highest level box for his major depressive disorder. For loss of amenities, he nominated box 3 for both conditions, and for recreational and leisure activities, box 5 for pain disorder, and box 6 for major depressive disorder. For social relationship he nominated box 2 for both conditions.
102. In the absence of further evidence on this issue the Tribunal is not in a position to make an assessment and accordingly it remits the matter to the Commission for that purpose.
Whether Mr Dean is entitled to a further payment of compensation and, if so, the amount of the additional compensation?
103. There was no argument at the hearing in support of this issue and accordingly the Tribunal makes no findings.
Whether the Commission was entitled to deduct an overpayment of incapacity payments from an award of lump sum compensation?
104. The Commission adopted the following principles for deciding whether to waive any or all of an overpayment. These are whether the Commission or, it is assumed, an agency, made an error, whether the payment was received in good faith by the debtor, and any other reasonable grounds, including severe financial hardship or exceptional circumstances.
105. Again, little evidence or argument was provided to the Tribunal on this issue. On the limited evidence available, it appears that originally an overpayment of $50,715.84 was raised in 2005. That amount was reduced by deduction from Mr Dean’s incapacity payments and stood at $38,051.25 in 2008. Mr Dean’s request for waiver of that amount was rejected by the Department on 10 January 2008. When the decision of 21 April 2009 was made to make a lump sum payment to Mr Dean for chronic adjustment disorder, the balance of $38,051.25 was deducted from Mr Dean’s lump sum entitlement, leaving him with only $9,229.67. Mr Dean’s further request for a waiver dated 17 February 2009 was considered and rejected on 16 April 2009, a decision affirmed in the reviewable decision of 15 June 2009 which upheld the original decision not to waive.
106. There is no doubt that the debt was correctly raised. Mr Dean had been receiving incapacity payments and from 1996, backdated to 1992, he also received regular superannuation pension payments as well. He was not entitled to receive both.
107. How this occurred does not reflect well on the Department or on ComSuper. The history of the matter indicates, at the least, dilatoriness on the part of the Department and was in part due to the Department having, for a period, misplaced Mr Dean’s file. Mr Dean had authorised exchange of information between the Department and the Authority. Although there was an exchange of information in 1992, 1993 and in 1995, at that stage Mr Dean was not in receipt of a superannuation pension and hence no overpayment was identified. There is evidence of a review by ComSuper in 2003 but a decision was made not to conduct a full review of classification so the overpayment was not detected. There is also a statement by Mr Dean to ComSuper in which he said he received compensation. He did not complete the details, but this should have alerted ComSuper to an issue. The administrative error was that no further checking was done by either agency until 2005, when a data match uncovered the overpayment. There was no evidence about how frequently such data matching takes place but the failure to uncover this overpayment in the nine years since 1996 is surprising, and in the circumstances, regrettable.
108. At the same time, the obligation is not solely on the agency to check. Mr Dean was advised in 1992 of the need to notify the Department if he received a ‘benefit’ and in subsequent letters if he received a payment ‘from any other source’. Mr Dean said he assumed the consent he had provided in 1995 would authorise checking between agencies and, if he was receiving payments to which he was not entitled, he would have been notified. There is no indication that at the time the decision to make a change to his level of payment retrospectively occurred in 1996 that Mr Dean received a letter reminding him of his obligation to notify the Department of that payment. There is a reference to the letter from ComSuper to Mr Dean of 24 July 1996 advising him of the change to Class B, but the letter apparently contained ‘no indication that this may affect any other income or payments’. The Tribunal has not sighted that letter. In those circumstances it is understandable that Mr Dean might not have understood the legal significance of a change from his receipt of a Class C to a Class B benefit. The failure of Mr Dean to notify of the change is at the least an innocent mistake.
109. There is, however, no evidence of ‘severe financial hardship’ or other ‘exceptional circumstance’. Mr Dean is currently receiving $400 a week. From that amount he is paying rent. At present while he is living in Jindabyne that rent accounts for half the $400, but when he is able to move back to the Dalgety Plains his rent will reduce to $100. He says he spends $100 a week on cigarettes, leaving the balance for food for himself and his two dogs. This is not severe financial hardship since it provides adequately for his needs.
110. In these circumstances, although there has been a degree of departmental error, and Mr Dean received the extra amount in good faith, the Tribunal does not consider there are sufficiently strong grounds for the exercise of the waiver power.
111. The decision under review is set aside and in substitution the Tribunal finds Mr Dean has a 25 per cent permanent impairment for each of his major depressive disorder and his pain disorder. The Tribunal remits the question of the appropriate score under Division 2 of the Guide for any non-economic loss suffered by Mr Dean for each of his conditions to the Commission.
112. The Tribunal orders that costs be apportioned in accordance with s 67(9) of the Act.
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision of Professor RM Creyke, Senior Member
Signed: ....................[sgd].................
C. Kocak, AssociateDate/s of Hearing 25 March - 26 March 2010
Date of Decision 25 May 2010
Counsel for the Applicant David Richards
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Michael Snell
Solicitor for the Respondent DLA Phillips Fox
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