Dennis and Comcare (Compensation)

[2015] AATA 835

Dennis and Comcare (Compensation) [2015] AATA 835 (29 October 2015)

Division	GENERAL DIVISION
File Number(s)	2014/4229
Re	Darell Dennis
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	29 October 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

Catchwords

COMPENSATION – lump sum payment – whether condition permanent – operation of transitional provisions – post-traumatic stress disorder with co-morbid major recurrent depressive disorder – condition permanent before commencement of new legislation – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24(2), 27, 124, 124(1A)

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

REASONS FOR DECISION

Senior Member Bernard J McCabe

29 October 2015

1. In order to resolve the case, I must decide when Darell Dennis’s work-related psychiatric condition became a permanent impairment. If the condition became permanent before the commencement of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), the transitional provisions in the SRC Act will prevent a lump sum payment being made because Mr Dennis would not have been entitled to compensation of that sort under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). If the condition became permanent after that date, Mr Dennis is entitled to succeed in his claim.

2. The medical evidence points to the condition becoming permanent before the commencement of the SRC Act. That means his claim cannot succeed. I explain my reasons below.

   Background to the application

3. Mr Darell Dennis, the applicant, was a police officer who worked in a variety of roles. He encountered a number of stressful situations while he was at work. He developed duodenal ulcers. He retired from the Australian Federal Police (the AFP) on medical grounds with effect from 6 October 1986. (Mr Dennis said he did not have any choice about retiring: he said he would have preferred to remain at work. But the precise circumstances of his departure do not make any difference to the outcome of this application.) Mr Dennis has been unable to work since that date.

4. Comcare’s predecessor accepted liability for Mr Dennis’s work related condition, which was described as work related stress resulting in aggravation of duodenal ulcers. The deemed date of injury was 20 August 1985. Mr Dennis has been in receipt of incapacity payments since leaving the AFP. That is fair enough, but he has also asked for permanent impairment compensation under ss 24 and 27 of the SRC Act. Comcare concedes Mr Dennis would be entitled to a lump sum payment under those provisions but for a technical obstacle which arises out of the transitional provisions in the SRC Act that affect the approach to injuries that occurred while the 1971 Act was in force.

   The operation of the transitional provisions

5. Where a person was injured before the SRC Act commenced in 1988, the arrangements for their ongoing compensation are dealt with in the transitional provisions found in s 124 of the SRC Act. Section 124(1A) says, in effect, that a person who was entitled to compensation under the 1971 Act would continue to be compensated under the relevant provisions of the SRC Act. But therein lies the problem: lump sum compensation could not be paid under the 1971 Act in respect of a permanent impairment arising out of a psychiatric condition. The approach in the 1971 Act may reflect an outdated view of mental illness, but that was the law that applied to everyone at the time. That limitation is effectively preserved by the transitional provisions so that impairments which became permanent before the commencement of the SRC Act do not result in any payment of lump sum compensation after that date. The law changed but the more generous approach to compensating mental illness only took effect in relation to impairments that became permanent after 1 December 1988.

   When did Mr Dennis’s condition become a permanent impairment?

6. I have to make a finding about when Mr Dennis’s impairment became permanent. The word permanent means “likely to continue indefinitely”: s 4 SRC Act. When considering whether the impairment is permanent, I must have regard to the following matters set out in s 24(2) of the SRC Act:

   (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.

7. The analysis in this case is complicated because the diagnosis of the condition has changed as more information came to light – and because we now know a great deal more about mental illness than we did when Mr Dennis became ill in the 1980s.

8. I was provided with a number of written reports from Dr Theodoros, the applicant’s treating psychiatrist. Dr Theodoros also gave evidence at the hearing by telephone. Dr Theodoros treated the applicant for an anxiety condition when Mr Dennis first saw him in 1988. Dr Theodoros admitted to being perplexed by Mr Dennis’s illness. Mr Dennis was clearly unwell when he was first seen but he deteriorated steadily over time without responding to any of the treatment options that were tried. It was not until comparatively recently that Dr Theodoros learned of some stressful experiences that happened to Mr Dennis while he worked for the AFP. Mr Dennis said he had been too embarrassed to discuss those matters but the new information suggested Mr Dennis’s illness was different to what had previously been thought. After years of trying to treat Mr Dennis for forms of anxiety, Dr Theodoros realised the preferable diagnosis was post-traumatic stress disorder (PTSD). It was a “Eureka!” moment.

9. Comcare commissioned two reports from Dr Duke. He also gave evidence at the hearing. He is a consultant psychiatrist. Doctors Theodoros and Duke agreed (following a conference of experts – see exhibit 2) that the correct diagnosis was now chronic PTSD with co-morbid major recurrent depressive disorder. Dr Duke confirmed in his oral evidence that the depression condition was a consequence of the PTSD and would have had its date of onset within about six months of the date of onset of the PTSD. Dr Theodoros did not address this question directly but I take it there was no dispute on this point. Each of the experts agreed the date of onset of the PTSD was some time before the applicant left the AFP. I note there are attendance notes (exhibit 9) suggesting the applicant may have been experiencing psychiatric symptoms from about 1981, and there are clinical notes from Dr Theodoros recording his belief the applicant was receiving treatment for psychiatric symptoms from around 1983: exhibit 8. Importantly, that joint conclusion excludes the possibility of the development of what is popularly known as late onset PTSD in the 1990s. Mr Dennis and his wife suggested the symptoms commonly associated with PTSD, like nightmares and flashbacks, did not commence until after 1995. But Doctors Theodoros and Duke agreed the diagnosis of PTSD was the best explanation for all of the applicant’s symptoms since the early 1980s. The fact the classic PTSD symptoms did not emerge until the mid-1990’s did not change their opinion that the applicant developed PTSD at an earlier point.

10. While the two experts agreed on the diagnosis, they were unable to agree at the conference of experts on the date on which the PTSD became permanent.

11. Dr Theodoros suggested in his oral evidence that the condition did not become permanent until the mid-1990s. He acknowledged the condition – which he thought at the time was an anxiety condition – had been present for some time but he insisted he was not pessimistic about achieving improvement, or even resolution of the symptoms, until some point after 1 December 1988.

12. Comcare produced two letters from Dr Theodoros that were written in 1988 after he began to see the applicant. Dr Theodoros told the delegate of Comcare’s predecessor that the applicant remained significantly disabled as a result of his anxiety disorder and added “there seems little prospect of recovery or improvement in the foreseeable future”: exhibit 10. In exhibit 11, he told the applicant’s then lawyers that a number of treatment approaches had been tried without success. He said:

    The failure of response to treatment and chronicity of his symptoms indicate the liklihood [sic] of a poor prognosis.

13. At the hearing, Dr Theodoros suggested the views in his correspondence were influenced by his desire to make sure his client was not required to return to work because that outcome would have been detrimental. He effectively acknowledged he was acting as an advocate for his patient, which sometimes occurs in a treating doctor’s report. He also said he might have been influenced by the prevailing view at the time that anxiety disorders were difficult to treat. He said that is no longer the accepted view: many anxiety disorders are now regarded as being susceptible to treatment. But that observation only takes us so far because it has now been accepted the applicant did not have generalised anxiety disorder in any event. He had PTSD.

14. While I think the assertions in exhibit 10 and 11 must be treated with caution, it seems to me Dr Theodoros would have been right to be pessimistic in 1988. As Dr Duke pointed out, the applicant had already been unwell for some time as a result of PTSD when he saw Dr Theodoros in 1988 before the commencement of the SRC Act. Dr Duke suggested PTSD was very difficult to treat once symptoms had been present for more than 6-12 months. At a minimum, the applicant had been experiencing symptoms for two years by the time he saw Dr Theodoros, and may have been unwell since 1981. Dr Theodoros acknowledged PTSD was difficult to treat effectively once the symptoms became established, but he remained hopeful of achieving some improvement. He said there were additional treatments that might be tried (although we know, with the benefit of hindsight, the treatments were unsuccessful and were probably destined to fail given the confusion over the correct diagnosis).

15. Dr Theodoros might have held out hope of achieving some benefit, but that is not the same thing as resolving the symptoms and bringing about a return to good health. Given the fact the condition had been present for some time before 1988, and given PTSD is difficult to treat successfully once it takes hold, I accept the condition had, in all probability, become permanent before 1 December 1988. The fact the applicant had not completed every possible reasonable treatment does not change my view.

    Conclusion

16. The applicant’s condition became permanent while the 1971 Act was still in force. He was not eligible for lump sum compensation for permanent impairment at the time; the effect of the transitional provisions in the SRC Act is that he remained ineligible for permanent impairment compensation once the new legislation commenced. It follows the decision under review must be affirmed.

17.     I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

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Associate

Dated 29 October 2015

Date of hearing	12 October 2015
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor