Forbutt and Comcare
[2003] AATA 966
•26 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 966
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/133
GENERAL ADMINISTRATIVE DIVISION )
Re ANNE LISA FORBUTT Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President) Date26 September 2003
PlaceHobart
Decision 1. The Tribunal decides that the determination of the respondent's delegate dated 27 July 2001 disallowing Ms Forbutt's claim for compensation under s24 of the Safety, Rehabilitation and Compensation Act 1988 in respect of permanent impairment resulting from post-traumatic stress disorder be set aside and the matter be remitted to the respondent for re-determination with a direction that Ms Forbutt has an entitlement to compensation in respect of a 10% permanent impairment under Table 5.1 of the Guide.
2. Pursuant to s67(9) of the said Act, the Tribunal orders that the costs of these proceedings incurred by the applicant be paid by the respondent.
3. Both parties have liberty to apply within the next 28 days as to the above order for costs.
4. Unless an application is made by either party as to that order within the next 28 days, Part 6 of the General Practice Direction dated 18 May 1998 is to apply to that order for costs.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Worker's compensation - permanent impairment - when impairment permanent - application of transitional provisions of Safety, Rehabilitation and Compensation Act 1988 - decision under review set aside.
Safety, Rehabilitation and Compensation Act 1988 – s24
REASONS FOR DECISION
26 September 2003 Mr S P Estcourt QC., (Deputy President) 1. In this case, the Tribunal finds in favour of Ms Forbutt’s application to set aside the determination of Comcare disallowing her claim for compensation for permanent impairment resulting from post-traumatic stress disorder.
2. The reason for the decision in favour of Ms Forbutt is that the Tribunal is comfortably satisfied that her post-traumatic stress disorder was not an impairment which could be considered permanent, in the sense of being likely to continue indefinitely, until some time after the critical date for the purposes of the relevant legislation, namely 1 December 1988.
3. It is common ground between the parties that Ms Forbutt now suffers, as a result of events which occurred during her period of service in the Australian Army between 12 February 1985 and 11 February 1988, a post‑traumatic stress disorder (“PTSD”) which has resulted in a permanent impairment of 10% for the purposes of the Safety, Rehabilitation & Compensation Act 1988 (Cth) (“the 1988 Act”).
4. Pursuant to s124(3)(b)(iii) of the 1988 Act, Ms Forbutt would not be entitled to receive compensation for her impairment if it was permanent prior to the commencement date of the 1988 Act, which was on 1 December 1988, because there was no such entitlement under the Act repealed by the 1988 Act, namely the Compensation (Commonwealth Government Employees) Act 1971.
5. Although it is clear that Ms Forbutt had some symptoms of PTSD from shortly after the first of the precipitating events in the Army which occurred within a month of her enlistment, it was accepted in evidence given by Comcare’s expert witness, psychiatrist Dr N.R. Rose, that she did not have “the full hand of PTSD at the time she left the service in February 1988”.
6. It was during a period of employment with a social welfare organisation known as “Stepping Stones” in November 1988 that Ms Forbutt’s condition forced her resignation and affected her capacity for work. Thereafter it was some 2½ years before she sought help from a general practitioner and although he counselled her from early 1992 it was not until some 10 months later that Ms Forbutt was referred to psychiatrist Dr I. Sale. She first saw Dr Sale on 26 November 1992.
7. The central issue in this case is as to when Ms Forbutt’s PTSD is to be regarded as representing a “permanent impairment”.. Under the 1988 Act the components of that term are separately defined in s4 to mean, the loss, or the loss of use, or the damage or malfunction, of any part of the body or of any bodily system or function which is likely to continue indefinitely.
8. Although Dr Sale wrote several reports on Ms Forbutt which were in evidence before the Tribunal his final position on this central issue is encapsulated in a report dated 10 January 2002, addressed to Ms Forbutt’s solicitors. He wrote:
“Your client parted company with the Army in February 1988. There is no information suggesting that she was medically ill prior to that date. It is possible that there were symptoms (such as insomnia) but this is speculative. The rigid routine of Army life may have allowed symptoms such as anxiety to be suppressed or controlled.
She became more clearly impaired while working with Stepping Stones, or at least that is when her impairment became apparent (in that she was unable to cope). In the months before joining Stepping Stones she lived a frugal and isolated lifestyle, but one that was unchallenging (in that she was not required to deal with people, make decisions, concentrate, meet deadlines).
Thus her underlying illness (remaining undiagnosed) became clinically symptomatic during her time with Stepping Stones (circa November 1988).
It is generally accepted amongst psychiatrists that if symptoms of PTSD have been present for a year or more, then chronicity is the likely outcome. Thus, although the diagnosis was yet to be made, and treatment yet to be tried, her condition in late 1989 was one where chronicity was probable (resulting in permanent impairment).” (emphasis added)
9. Dr Rose’s opinion on this issue is found at its most succinct in his somewhat conflicting reports of 4 July 2002 and 12 March 2003, addressed to Comcare’s solicitors. He wrote:
“In reply to the specific questions contained in your letter dated 5 June 2002:
1.Whether or not the impairment arising from Ms Forbutt’s atypical ptsd became permanent before 1 December 1988.
In my opinion, the Post Traumatic Stress Disorder (as manifest by sufficient symptoms for a psychiatric diagnosis to be made) emerged sometime within a year after Ms Forbutt left the Army in February 1985 (sic). I would consider that the condition became chronic one year later.
The question of acuteness or chronicity is merely one of medical nomenclature. During the early phase of any illness, one cannot be sure that the illness will become chronic. Some illnesses, including Post Traumatic Stress Disorder, remit completely and thus do not become chronic.
I would, therefore, agree that in the first year an illness cannot be diagnosed as chronic unless it is of the nature of a cancer or something similar, which is known to have such a history. The normal history of Post Traumatic Stress Disorder is that perhaps two-thirds of cases resolve within one year, with only one-third going on to become chronic.
I agree that if an illness is subsequently shown to be chronic after one year, it must have been so from the outset.
I would like to say that I agree with Dr Sale’s assessment that the psychiatric condition became clinically symptomatic in or about November 1988.”
“In reply to the specific questions contained in your letter, I would make the following comments:
*Could you please provide a further report which states whether or not, in your opinion Ms Forbutt’s condition of PTSD was permanent prior to 1 December 1988.
A diagnosis of permanency can only be made retrospectively. In other words, one decides one year or more after the onset of Post Traumatic Stress Disorder that it is permanent, when there is a lack of improvement or only partial improvement.
If there is no further improvement over the years, then one is more convinced that the condition is permanent.
In my opinion, the condition of Post Traumatic Stress Disorder commenced within a year after Ms Forbutt left the Army in February 1988. In my opinion Ms Forbutt’s PTSD had commenced by the time it became clinically symptomatic in November 1988. It would, therefore, have been permanent prior to 1 December 1988.” (emphasis added)
10. Dr Sale was obviously provided with details of Dr Rose’s opinion as set out above for in a further report to Ms Forbutt’s solicitors dated 26 May 2003 Dr Sale opined as follows:
“In answer to your questions:
1. Dr Rose and I agree on the diagnosis – Chronic PTSD.
2.We agree that her illness became clinically symptomatic circa November 1988.
3.I agree with Dr Rose that around two thirds of PTSD cases substantially settle within one year (I would disagree with ‘completely’ as most cases that I see have some residual symptoms and show a reduced resilience).
4.The notion that if an illness is later shown to be chronic it must have been so from the outset is a semantic one, an application of a retrospective judgment. There is no way of accurately knowing at the start that the outcome will be poor.
5.I do not see how a condition can be considered permanent unless treatment measures have failed. Even in longstanding illnesses (not just PTSD), treatment should be provided, and while full recovery may be unlikely, the degree of impairment might be reduced.
6.Dr Rose says chronicity has occurred if the illness is still present one year after onset – thus, November 1989. While I agree with that notion, I believe that there is an assumption that treatment will have been provided in that year. As your client did not receive treatment until 1992, I prefer a year from that time to judge that the condition was unresponsive to treatment and stable, i.e. permanent.” (emphasis added)
11. On this point of difference with Dr Rose, Dr Sale said in evidence in chief:
“MR BROWNE: Now, Dr Sale, in your report of 26 May 2003, in paragraph 4, you say that:
The notion that if an illness is later shown to be chronic, it must have been so from the outset is a semantic one, an application of a retrospective judgment.
Now, what I want to ask you is this. If an illness is found at a point in time to be chronic in terms of that notion and if therefore notionally chronic from the outset, does that approach allow for the prospect of treatment in ameliorating the symptoms of the condition?---Well, no it doesn’t. I don’t believe that you could regard an illness as chronic and or permanent unless there has also been a failure to receive reasonably appropriate treatment – well, failure to respond to reasonably appropriate treatment…
MR BROWNE: So asking the question in a different way, Dr Sale, what is the role of treatment in relation to an atypical post traumatic stress order in determining whether it is a chronic condition?---Well, although PTSD is generally difficult to treat it is not an untreatable condition. There are a number of treatment measures that can be applied and may lead to resolution of the illness or perhaps omission (sic) of the illness to a degree where the level of symptomatology is of nuisance value only. You can’t know that from the outset. There may be some factors that give you some idea of likely outcome but you can’t know until you treat them.
In the case of Ms Forbutt, if she had had the benefit of treatment through the period until the end of 1988, is it possible that he could have recovered? ---Yes, there is a reasonable possibility of that..” (emphasis added)
12. Under cross-examination by counsel for Comcare Mr Morgan, Dr Sale said:
“MR MORGAN: So as I understand it, what you are saying is this. One can’t know whether that condition has a degree of permanence until one is able to gauge the relative success or lack of success of treatment? --- That’s correct.
My question to you is, if there is a lack of success of treatment does that not suggest that the condition was permanent?
THE D.PRESIDENT: Later on you mean?
MR MORGAN: Yes.
THE D.PRESIDENT: Yes? --- Well, that is where there is a semantic argument. The analogy might be that you present with some form of malignancy, is that going to be a lethal condition? Unless you have had treatment and hopefully you would have it, I don’t think you can make that judgment.
MR MORGAN: But if you had treatment and it didn’t succeed, then the earlier pessimistic prognosis would be borne out? ---Yes, but it is a retrospective judgment, isn’t it?
Yes, but what are we trying to do, is it not, Doctor, is we are trying to determine whether or not this lady had a permanent impairment in November 1988 and looked at from the benefit of hindsight I suggest the evidence is overwhelming that she did? --- Well, I think it is a semantic argument, not a medical argument, and I’ve put my point of view that you can’t judge something permanent until you’ve had a go at treating it, whatever it is – whether it’s psychiatric or surgical.”
13. In answer to questions from the Tribunal Dr Sale said:
“THE D.PRESIDENT: But what Mr Morgan is saying now is that if later on you do attempt treatment – say in this case for example, I am not sure if the date is correct, 1992 there is treatment commenced but it doesn’t work; it is unsuccessful? --- That’s right.
You might therefore conclude that in 1998 it was in fact already chronic or permanent? --- Well, the chances - - -
Seems to me that that doesn’t come into the possibility of the symptoms entrenching themselves, or the condition entrenching itself?---Well, that’s precisely the point I was about to make to your question is that the fact that there would have been social morbidity arising out of the persistence of symptoms of that period, ’88 to ’92 would have made the prospects of improvement with treatment less during ’92 than they may have been during 1988. (emphasis added)
MR MORGAN: What do you mean by social morbidity in that context?---Because – well, people with PTSD become isolative and that in its own right leads to more social pathology and they may also have increasing problems with substance abuse.
…
Yes. No, I just want to understand what you are saying. Really, the effect of what you are saying is well, because at a certain time in 1988 she had never had any treatment you can’t really say that her condition was permanent then - - -?---That’s what I’m saying, yes.
- - - because the possibility of the impact of treatment was never explored - - - ?---That’s correct.
- - never given an opportunity. But moreover, you can’t simply [say] because in 1992 when she did seek treatment that her illness was permanent, that it was in 1988, because between 1988 and 1992 her symptoms may well have become – her illness may well have become entrenched?---That’s correct.” (emphasis added)
14. Upon further questioning by Mr Morgan Dr Sale said:
“Doctor, taking the concept of permanent to mean likely to continue indefinitely?---Yes.
In 1988 her condition was likely to continue indefinitely, given its reaction to the treatment in 1992 I suggest?---No. No, I can’t agree with that notion.
For why – for what reason?---Well, one, the prospects of treatment succeeding in 1988 and 1992 differed. There was a better prospect of treatment in 1988 because it was closer to the injurious event, whereas in ’92 time had passed, she had remained isolated and restricted over a period of time and that in itself added to her general morbidity. So there – so that for a start is the case. But the second is that again, I am just repeating myself, I don’t believe you can say something is permanent or incurable until you’ve had a go at treating it.
If on the other hand her PTSD had commenced in 1985 then the chances of any improvement occurring after December 1988 are significantly reduced than if her condition arose in early 1988?---Yes, if her illness arose during 1985 the prospects of your treatment being a success are steadily diminishing as time goes on.
Right. So do I understand the distinction that you are making is this? Because she didn’t have treatment in 1992 one cannot say that in 1988 her condition was permanent because had she had treatment then it might have responded to treatment?---It might have, yes.
But the corollary of that is that it might not have?---Yes, that’s correct.” (emphasis added)
15. Dr Rose was examined in chief about this point of difference between him and Dr Sale on this issue. He said:
“Would you like to explain to the Tribunal your position in relation to the question of treatment, vis a vis the question of permanency of the condition?---Well, one would have to accept that had no treatment occurred in the early years then there would be a slight increase in the chance that it would be permanent. However, it would really depend on the complex of symptoms, the particular sorts of symptoms that the person had, and what the history was of the symptoms from the time of development. Now, we know that post-traumatic stress disorder is notoriously difficult to treat, and if it doesn’t resolve in the first 12 months regardless of whether or not there is any treatment, the chances of a full recovery are not very good. Relatively few people will fully recover. That is to say there may be partial recovery after that 12 months, but after that 12 months, even if there has no treatment, it is more likely that not that there will be some residual symptoms. Of course, if treatment has been successful in the first 12 months then there is no question the condition has completely resolved. Ms Forbutt had pronounced symptoms of emotional numbing, which she described as being present virtually from the time that she was incarcerated and when she alleged that she was the victim of bad behaviour on the part of Corporal Modystack. And she gave a history to me, at least, of numbing feelings, virtually from that time. I would assume that those are symptoms of post-traumatic stress disorder. I would further assume that when there is profound numbing, as has been the case in Ms Forbutt, the chances of recovery are less good, less favourable than they might have been without that numbing. So I would have judged the (sic) treatment or no the probability would have been that she would have had at least some degree of ongoing post-traumatic stress disorder, probably from the time shortly after that described incident of trauma, and to the present day.”
16. On this subject under cross-examination by Mr Browne, counsel for Ms Forbutt, Dr Rose said:
“Dr Sale said, though, that that notion as he described it doesn’t allow for the prospect of treatment to prevent symptoms getting worse, or in fact treatment that can ameliorate the condition; do you agree with that?---Well, that definition will exclude the effects of treatment, so to that extent Dr Sale is correct. The problem really here is what we mean by treatment, and when, because treatment will have a different effect on different people. And, you see, we are asked to use a retrospectroscope here. When it became – when the condition arose would it have been the sort of condition that would have responded to treatment anyway, or wouldn’t it have been? Or if it had been the sort of condition that might have responded to treatment, to what degree might it have responded to treatment? And then it depends on all the factors that both Dr Sale and I have gone through, like pre-morbid personality, and a whole lot of other things, including re-exposure to trauma, as I have indicated. So I think it’s very, very difficult to generalise about that, and the only thing that we can hang on to, I’m suggesting, is the idea that it became permanent at the time of onset if it hasn’t responded to treatment, regardless of the time the treatment might have occurred. I can’t see any other way out of this dilemma.” (emphasis added)
17. Whilst recognising the force of Dr Rose’s contention that because it is very difficult to generalise about the effect of treatment that wasn’t administered, “the way out of the dilemma” is to conclude that the condition became permanent at the time of onset if it failed to respond to treatment, whenever that treatment occurred, the Tribunal finds Dr Sale’s evidence on this issue to be the more compelling.
18. Dr Sale’s view that it cannot be said that the condition was permanent at a time when treatment had never been tried accords with common sense. More importantly however, his view that a retrospective judgment cannot be made in this case, despite the notorious difficulty of treating PTSD successfully, because, during the period between November 1988 and when Ms Forbutt was referred to a psychiatrist in 1992 her symptoms may well have become entrenched, accords with sound logic.
19. Dr Sale’s view is accepting of the possibilities, first that treatment at a time closer to the injurious event might have had a successful outcome and secondly that because treatment by a psychiatrist was not attempted until four years after her condition had become clinically symptomatic, that condition may well have been more difficult to treat because of the entrenching of symptoms. The corollary of all this is that the failure of treatment in 1992 is no sure indicator that appropriate treatment 4 years earlier would have failed. As Dr Sale said “the prospects of treatment succeeding in 1988 and 1992 differed. There was a better prospect of treatment in 1992 …”.
20. Dr Rose’s view on the other hand has about it elements of unfairness, first in that it denies to Ms Forbutt the possibility of treatment being successful if undertaken in 1988, simply because of the difficulty in generalising about response to treatment, pre-morbid personally and re‑exposure to trauma, and second in that it is inherent in his reasoning that the onset over time, of chronic symptoms of an illness that has gone untreated, is itself to be taken as an indicator that treatment would not have been successful.
21. In this case Ms Forbutt’s psychiatric condition did not become clinically symptomatic until but a few weeks before the critical date of commencement of the 1988 Act on 1 December 1998 and it went untreated through no fault of hers for almost 4 years after that date. In these circumstances and accepting as it does the expert opinion of Dr Sale in preference to that of Dr Rose, the Tribunal is comfortably satisfied that Ms Forbutt’s impairment resulting from her PTSD became permanent sometime after 1 December 1988.
22. It was submitted by Mr Morgan in a summary of issues prepared during the hearing of this application that if the Tribunal made a determination that Ms Forbutt’s impairment became permanent after 1 December 1988 then the percentage of permanent impairment should be assessed “against her pre-PTSD condition”.
23. There was a good deal of evidence about Ms Forbutt’s lifestyle and behaviour both before she joined the Army and after she left it, however Dr Rose’s evidence to the Tribunal was that whilst pre-morbid personality was an issue that needs to be taken into account when determining the percentage of permanent impairment related to the PTSD, he had based his assessment, under Table 5.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”), of 10%, “at the time of [his] examination” on 19 June 2002 and his evidence was that his assessment of 10% “related to her permanent impairment solely related to the PTSD”.
24. In these circumstances, and given the concurrence of opinion of Dr Sale as to this assessment the Tribunal finds the degree of permanent impairment, solely related to Ms Forbutt’s PTSD, to be 10%.
25. It follows that the decision of the Tribunal is that the determination of the respondent’s delegate dated 27 July 2001 disallowing Ms Forbutt’s claim for compensation under s24 of the Safety, Rehabilitation & Compensation Act 1988 for compensation in respect of permanent impairment resulting from post-traumatic stress disorder is set aside and the matter is remitted to the respondent for re-determination with the direction that Ms Forbutt has an entitlement to compensation in respect of a 10% permanent impairment under Table 5.1 of the Guide.
26. As the Tribunal’s decision is one to which s.67(9) of the 1988 Act relates, Part 6 of the Tribunal’s General Practice Direction dated 18 May 1998 is to apply as to the Tribunals order for costs unless within the next 28 days either party applies to the Tribunal for some other order.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 6 and 7 August 2003
Date of Decision 26 September 2003
Counsel for the Applicant Mr R Browne
Solicitor for the Applicant Fitzgerald Browne
Counsel for the Respondent Mr B Morgan
Solicitor for the Respondent Australian Government Solicitor
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