Georgakopoulos and Telstra Corporation Limited (Compensation)
[2016] AATA 666
•31 August 2016
Georgakopoulos and Telstra Corporation Limited (Compensation) [2016] AATA 666 (31 August 2016)
Division
GENERAL DIVISION
File Number(s)
2015/4252
Re
Terry Georgakopoulos
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 31 August 2016 Place Melbourne The Tribunal sets aside the decision under review and in substitution finds that the Applicant is entitled to compensation for his permanent impairment and non-economic loss.
.............[sgd].......................................
Egon Fice, Senior Member
WORKERS’ COMPENSATION - permanent impairment claim in respect of psychiatric condition –– whether applicant has undertaken all reasonable rehabilitative treatment – likelihood of improvement of condition – whether impairment is properly classified as permanent and results in more than 10% whole person impairment – quantum of assessment regarding non-economic loss – decision set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 24, 27, 62, 67
Administrative Appeals Tribunal Act 1975, s. 42C
(Comcare) Guide to the Assessment of the Degree of Permanent Impairment - Edition 2.1
Secondary Materials
Australian Concise Oxford Dictionary (3rd ed, 1997)
REASONS FOR DECISION
Egon Fice, Senior Member
31 August 2016
Mr Terry Georgakopoulos commenced work with Telstra Corporation Ltd in about 1993. He suffered a right shoulder injury on or about 18 November 2008 in the course of his employment with Telstra. Although Telstra initially denied liability for that injury, the matter was settled on 1 September 2010 following a Tribunal application. However, following his return to work after his shoulder injury, Mr Georgakopoulos began to suffer anxiety and depression.
On 17 December 2009 Dr William M Harvey, Mr Georgakopoulos’ General Practitioner, certified Mr Georgakopoulos was incapacitated for all work by reason of anxiety and depression. He ceased work on 17 December 2009 and has not returned since.
On 24 December 2009 Mr Georgakopoulos lodged a compensation claim in respect of his anxiety and depression. Telstra denied liability for compensation in respect of that injury. That decision was affirmed on review. Mr Georgakopoulos then lodged an application with the Tribunal claiming his anxiety and depression was contributed to, in a significant degree, by his employment. That claim was also resolved by consent in Mr Georgakopoulos’ favour and the Tribunal made orders pursuant to s. 42C of the Administrative Appeals Tribunal Act 1975 (AAT Act).
On or about 17 March 2015 Mr Georgakopoulos lodged with Telstra a permanent impairment claim in respect of his psychiatric condition described as major depressive disorder; major anxiety and associated psychiatric symptoms; and PTSD. His condition on the claim form was described by Dr Rajan Thomas, a psychiatrist, as major depression and panic disorder.
In a letter dated 21 July 2015 Telstra notified Mr Georgakopoulos that he was not entitled to compensation for permanent impairment and non-economic loss under ss. 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Mr Georgakopoulos sought reconsideration of that determination in accordance with s. 62 of the SRC Act. In a letter dated 12 August 2015 a Telstra Reconsideration Officer informed Mr Georgakopoulos that he decided to affirm the determination dated 21 July 2015. That was essentially because the Reconsideration Officer found that at the time of his decision, it was premature to determine that Mr Georgakopoulos suffered permanent impairment due to his compensable condition as it did not meet the 10% threshold required under
s. 24 of the SRC Act.
On 18 August 2015 Mr Georgakopoulos lodged an application with the Tribunal seeking review of the reconsidered decision made on 12 August 2015. He claimed he was entitled to lump-sum compensation under ss. 24 and 27 of the SRC Act.
The issues I am required to address in this matter are:
(a)whether Mr Georgakopoulos has undertaken all reasonable rehabilitative treatment for his impairment;
(b)if Mr Georgakopoulos’ impairment is properly classified as permanent, whether it results in more than 10% whole person impairment; and
(c)if Mr Georgakopoulos has an impairment which results in more than 10% whole person impairment, the level of assessment which should be made in respect of non-economic loss pursuant to s. 27 the SRC Act.
ENTITLEMENT TO COMPENSATION FOR PERMANENT IMPAIRMENT
The entitlement to compensation for permanent impairment and the matters which must be considered when determining whether the impairment is permanent are set out in s. 24 of the SRC Act. Relevantly, it provides:
24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
The descriptor (adjective), permanent, is defined in s. 4 of the SRC Act and it means: likely to continue indefinitely.
Duration of the impairment
Following his shoulder injury in 2008, in July 2009 Mr Georgakopoulos commenced a graduated return to work programme. When he returned to work following recovery from his shoulder injury, Mr Georgakopoulos found that a new computer system was being used and that he required training. It appears Mr Georgakopoulos had some difficulty in adapting to the new computer system and he was asked to attend a meeting in November 2009. That meeting was subsequently rescheduled for December 2009 when Mr Georgakopoulos said that he was offered a full induction program and told that if his poor performance did not improve following that program, his employment would be at risk. This caused Mr Georgakopoulos considerable distress and he attended his General Practitioner (GP) later on the same day complaining of anxiety, irritability and panic attacks. Mr Georgakopoulos has not returned to work since December 2009. At that time, he was 50 years of age.
Mr Georgakopoulos lodged his claim for permanent impairment on or about 17 March 2015. It is now some 5 ½ years since Mr Georgakopoulos first complained of his permanent impairment. His condition does not appear to have altered significantly in that time.
Likelihood of improvement
This issue was highly contentious. Mr Georgakopoulos first consulted Dr Thomas on 23 February 2010. Dr Thomas diagnosed Mr Georgakopoulos as having major depression with psychotic features; panic disorder; and chronic pain syndrome. At the present time, it appears Mr Georgakopoulos is treated with medication and regular visits to a psychologist. According to Dr Thomas, his current medication (as at 16 October 2015) included Risperidone 2 mg nocte; Seroqual XR 150 mg nocte; Citalopram 80 mg daily; Epilim 400 mg BD and Diazepam 5 mg nocte 2 PRN.
In his witness statement which was taken into evidence Dr Thomas said that he saw Mr Georgakopoulos every three weeks and reviewed his medication regularly. He noted that Mr Georgakopoulos developed significant side-effects with different antidepressants. He said the current combination of medication appears to have helped him to a certain extent.
In cross-examination Dr Thomas was asked if he was familiar with the Royal Australian and New Zealand College of Psychiatrists Guidelines (RANZCP Guidelines) published in the Australian & New Zealand Journal of Psychiatry, 2015, Vol. 49 (12). He admitted that he had not read that journal article in detail. In part, the Journal article deals with the management of major depressive disorder. It describes essentially three steps in the process which should be undertaken in order to achieve that goal which is the complete remission of depression with full functional recovery and the development of resilience. Step 1 in the process refers to Generic Psychosocial Interventions and Formulation-Based Intervention. The Formulation-Based Intervention includes Psychological Therapy and Pharmacotherapy. The latter therapy is divided into two segments, First line and Second line. First line includes the application of SSRIs (selective serotonin reuptake inhibitors). Citalopram is an SSRI. Second line treatment includes the use of TCAs (tricyclic antidepressants).
Step 2 applies if Step 1 is insufficient. It includes increasing the dose of antidepressant medication and augmenting antidepressant medication with lithium and/or antipsychotic medication. Risperidone is an antipsychotic. Step 3 applies if Step 2 is insufficient. It includes ECT (electroconvulsive therapy).
The RANZCP Guidelines also say this about Level 1 antidepressants, at 1107:
However, the decision to treat an individual patient with an antidepressant remains very much a matter of clinical judgement. This is because there are no reliable predictors of response to medication. Psychosocial factors such as abuse or personality traits can be informative, but the decision to pursue pharmacotherapy and the choice of antidepressant is usually based on illness severity, degree of associated impairment, patient preference and additional factors.
In cross-examination Dr Thomas admitted he had not tried Mr Georgakopoulos on tricyclic antidepressants. He also said he had not tried lithium. He explained that he had not done so because clinical treatment was more complex, having to take into account multiple risk effects. It was also put to Dr Thomas that ECT might be appropriate and he agreed. However, he said this had been discussed but Mr Georgakopoulos refused to have that treatment. Dr Thomas was of the opinion that if Mr Georgakopoulos was not willing to cooperate, ECT would be unlikely to be of benefit to him.
Dr Jennifer Majoor, a psychiatrist, examined Mr Georgakopoulos on 22 May 2015 and provided a report dated 1 June 2015 which was in evidence. Her diagnosis of his mental state was that he had chronic major depressive disorder. In answer to a question regarding whether Mr Georgakopoulos’ had a permanent impairment, Dr Majoor said:
Mr Georgakopoulos’ impairment from his Major Depressive Disorder has become long-standing and chronic over the last five years and is of moderate to severe intensity. It has been resistant to multiple pharmacological and psychological therapies to date. I would expect that it is unlikely to change substantially and by more than 3% in the next year with or without treatment and would consider that it is likely to continue indefinitely.
In answer to a question whether Mr Georgakopoulos had undergone all reasonable rehabilitative treatment in respect of this impairment, Dr Majoor said:
From the file material available, and from Mr Georgakopoulos’ report, he has undergone an extensive range of treatments with SSRI and SSRI/SNRI antidepressants and adjunct therapy with antipsychotics. Mr Georgakopoulos’ condition is in the moderately severe range and he has demonstrated treatment resistance to the pharmacological interventions to date. Further treatment could include the use of a tricyclic antidepressant and adjunct therapy with Lithium. Referral to a specialist mood disorder unit could be of assistance.
However, whilst these treatments might provide some symptom relief or prevent further deterioration, I would anticipate that he will continue to have permanent impairment and ongoing long-term issues with a Major Depressive Disorder, given the chronicity and severity of his condition. A remission of his symptoms is unlikely in the short term.
Dr Majoor also said Mr Georgakopoulos’ condition could not be said to have reached maximal medical improvement until he had undergone a trial of tricyclic antidepressant and adjunct therapy with lithium. Despite that statement, Dr Majoor said:
However, given the chronicity and severity of his condition and the extensive treatments that he has had to date that have had little impact on his symptoms, I would anticipate that he will continue to have permanent impairment and ongoing long-term issues with the Major Depressive Disorder, given the chronicity and severity of his condition. A remission of his symptoms is unlikely in the short term.
In a second report dated 3 July 2015 it appears to me that Dr Majoor had changed, at least the emphasis, of her opinion which I have set out above. Rather than focusing on Mr Georgakopoulos continuing to have permanent impairment, Dr Majoor focused on symptoms. After explaining that Mr Georgakopoulos should be given a trial of tricyclic antidepressant and adjunct therapy with lithium because they were specialised treatments for the treatment of resistant Major Depressive Disorder, she said:
Given the severity and chronicity of Mr Georgakopoulos’ symptoms and the course of his illness to date, these treatments are unlikely to effect a complete remission of his symptoms in the foreseeable future, and I consider it reasonable to perform a whole person impairment, but equally it could be reasonable to delay the assessment until further treatment is trialled.
Dr Majoor also noted that the American Medical Association Guide, 4th edition, stated that a condition can be considered stable and permanent if it is considered to be unlikely to change substantially and by more than 3% in the next year with or without treatment.
In her oral evidence Dr Majoor was critical of Dr Thomas’ pharmacological treatment of Mr Georgakopoulos. In particular, she was critical of treating Mr Georgakopoulos with 80 mg of Citalopram daily. In her opinion, the absolute highest dose should be 40 mg and probably not above 30 mg due to the risk of cardiac problems including arrhythmia. She described a response to increasing dose as flattening out as dose increased. In her opinion, 80 mg was not more effective than 30 mg per day. Also, it was a risky dose. With respect to both psychiatrists, the MIMS Australia publication states the adult maximum dose as 60 mg per day.
Dr Majoor also criticised Dr Thomas’ use of Epilim. The MIMS publication states the use of Epilim as for generalised epilepsy. Dr Majoor said it was used in bipolar disorder cases. She was of the opinion that there was no reason to use Epilim in this case which had a greater risk of side-effects.
In his report dated 16 October 2015, Dr Thomas commented on the recommendations put forward by Dr Majoor. Dr Thomas mentioned that Mr Georgakopoulos, in addition to his major depression, had panic disorder with PTSD symptoms. He described Mr Georgakopoulos as having severe anxiety and panic attacks. As for Dr Majoor’s comments regarding the use of tricyclic antidepressants and lithium, Dr Thomas said that Mr Georgakopoulos was prescribed a combination of antidepressants and antipsychotics. Dr Thomas also opined that while lithium was very useful where bipolar depression had been diagnosed, it was of limited value in depression with panic and PTSD symptoms. He was also of the opinion that lithium was unlikely to show improvement in Mr Georgakopoulos because his persisting PTSD symptoms made the depression worse.
I had in evidence an earlier report from Dr Timothy J Entwisle, a psychiatrist, which is dated 2 September 2011. He diagnosed Mr Georgakopoulos as having an adjustment disorder with depressed and anxious mood. He also described Mr Georgakopoulos as a vulnerable individual with an anxious, obsessive temperament, a tendency to be perfectionistic and an inclination to worry. Dr Entwisle noted that a variety of psychotropic medications had been attempted without any real improvement in Mr Georgakopoulos’ psychological and psychiatric functioning. He recommended a second opinion be obtained in regard to his treatment. Dr Entwisle also suggested that psychological treatment involving exposure treatment would be of assistance.
I also had in evidence a report from Associate Professor George Mendelson, a psychiatrist, which is dated 14 August 2012. He examined Mr Georgakopoulos on 8 August 2012. Associate Professor Mendelson agreed with Dr Entwisle’s diagnosis considering that Mr Georgakopoulos had clinically significant symptoms of both depression and anxiety. Associate Professor Mendelson was of the view that with support and encouragement from his treating health care practitioners he anticipated Mr Georgakopoulos would be able to commence a return to work programme if a suitable position were identified and he was reassured that his employment was secure.
As far as Mr Georgakopoulos’ treatment was concerned, Associate Professor Mendelson was of the opinion that the medications currently prescribed for him were appropriate as were the dosages. Curiously, despite what is set out in the RANZCP Guidelines, Associate Professor Mendelson said it was not clear to him why it was considered that Mr Georgakopoulos needed to attend both psychiatrist and a psychologist. He may not have been aware that the Guidelines and other psychiatrists commonly opted for psychological therapy as well as pharmacotherapy. It should be borne in mind that Associate Professor Mendelson examined Mr Georgakopoulos in the context of his initial claim for anxiety and depression and not in the context of permanent impairment. I should also perhaps state that Associate Professor Mendelson said he was not aware, on examination, of any evidence of voluntary or involuntary exaggeration of the symptoms or signs by Mr Georgakopoulos.
Mr Georgakopoulos was also examined by Dr Gregory White, a psychiatrist, on 16 October 2013. The purpose of that examination was stated by Dr White to be for obtaining a clinical opinion in order to assist with the making of a decision about his claimed compensation.
Mr White also interviewed Mr Georgakopoulos’ wife briefly. She told him admission to hospital had been discussed at one time but that ECT or referral to a mood disorders clinic had not been discussed.
Dr White concluded that Mr Georgakopoulos was suffering from a severe major depressive disorder, single episode, characterised by low mood and other biological, psychological and social symptoms of depression, including melancholic features.
Dr White also said in his report that at interview, there was evidence of some post-traumatic embitterment about the workplace events in addition to a plethora of reported depressive symptomology and significant depressive features upon mental state examination. Dr White described his prognosis as poor. In answer to a question asking him to indicate when he anticipated Mr Georgakopoulos might return to full-time work performing pre-injury duties, Dr White said:
Mr Georgakopoulos is unlikely to ever return to full-time work, or even to part-time work, unless there is a very significant response to further treatments in the future.
Dr White recommended that Mr Georgakopoulos be referred to a mood disorders clinic for a second opinion, and specific advice about physical treatments (pharmacotherapy, electroconvulsive therapy, transcranial magnetic stimulation) or combinations of physical treatments. Nevertheless when asked to comment about the treatment he had been receiving, Dr White said that upon the information available, the treatment appears to have been appropriate. Dr White was also of the view that even if there were a reconsideration of the management plan, which would have a small but significant likelihood of at least a degree of relief and symptomology, it would not result in complete remission of depression. He described complete remission as quite unlikely.
Dr White provided a second report which is dated 20 January 2015 after he re-examined Mr Georgakopoulos on 16 January 2015. According to Dr White, Mr Georgakopoulos said that Dr Thomas mentioned an admission to hospital but he got more depressed and anxious when he thought about that. Mr Georgakopoulos told Dr White that he had discussed his previous recommendation that ECT be considered but all the movies portraying the terrible effects of ECT came to mind.
Dr White concluded that since his last assessment of Mr Georgakopoulos, various trials of psychiatric medications and psychological therapy had been of little benefit to him. He said Mr Georgakopoulos did not have any significant change in presentation and prognosis. As for his capacity to work, Dr White said:
Mr Georgakopoulos is unlikely to ever work again in any capacity, due to a plethora of chronic and severe psychiatric symptoms.
Yes, Mr Georgakopoulos appears to be totally and permanently incapacitated for any type of employment.
I had in evidence two reports from Dr Nigel Strauss, a psychiatrist. Dr Strauss also attended the Tribunal and gave oral evidence.
In his first report, which is dated 10 March 2015, Dr Strauss said that Mr Georgakopoulos attended his rooms in the company of his wife on that day. Dr Strauss said Mr Georgakopoulos presented as a man with very poor eye contact and was quite dependent on his wife who was helpful throughout the course of the interview. He had a very depressed demeanour and spoke in a much organised, structured way suggesting obsessional traits in his personality.
Dr Strauss concluded that Mr Georgakopoulos suffered from chronic major depressive illness which appeared to be work related and that he remained preoccupied with compensation matters and what happened to him at work. He described Mr Georgakopoulos’ condition as chronic and unremitting. His prognosis was poor. Dr Strauss was of the opinion that Mr Georgakopoulos should continue with monthly visits to a psychiatrist and to a psychologist indefinitely to prevent deterioration. He also needed to continue to take the psychotropic medication that he is currently on.
Dr Strauss provided a follow-up report which is dated 20 October 2015. The purpose of the report seems to have been to comment on what Dr Majoor said in her reports. Dr Strauss said:
I believe that Dr Majoors [sic] has contradicted herself stating that this man’s condition is permanent but he had not received optimal treatment. It is apparent that this man’s condition will not change no matter what treatment he receives.
…
I agree with Dr Majoors who has basically stated that this man’s condition is permanent and stable and there is no treatment available that will change his condition.… His prognosis therefore remains poor.
Save for the apparently contradictory statement made by Dr Majoor regarding the possibility of some improvement in symptoms while maintaining that his condition was permanent and likely to remain, all of the more recent psychiatric reports appear to essentially agree that it is unlikely that Mr Georgakopoulos will achieve any practical respite from his condition. His mental condition is likely to continue indefinitely. I find that Mr Georgakopoulos’ mental injury has resulted in his permanent impairment.
ALL REASONABLE REHABILITATIVE TREATMENT
This limb of s. 24 (1) of the SRC Act is of course inextricably tied to the likelihood of improvement in condition. Dr Majoor suggested that, logically, it should be dealt with prior to determining whether there was a likelihood of improvement in an applicant’s condition. While I agree that in general that would be the case, I have no doubt there are also cases where further reasonable rehabilitative treatment will not result in any appreciative reduction of symptoms and, even if it does, the likelihood of improvement to such an extent that the impairment can no longer be considered to be permanent.
In dealing with the likelihood of improvement issue, I have referred to Dr Majoor’s opinion that Mr Georgakopoulos had not undergone all reasonable rehabilitative treatment at this point in time. In particular, she expressed the opinion that further treatment could include the use of a tricyclic antidepressant and adjunct therapy with lithium. While there was no evidence that Dr Thomas had prescribed a tricyclic antidepressant, he did state he had prescribed a combination of antidepressants and antipsychotics. Notably, Step 2 in the RANZCP Guidelines refers to augmenting antidepressant medication with lithium and/or antipsychotic medication. It appears to me that Dr Thomas has followed Step 2 of the Guidelines. As for prescribing lithium, Dr Thomas plainly had a different view, believing it was of limited value in Mr Georgakopoulos’ case. Dr Strauss opined that Mr Georgakopoulos needed to continue to take the psychotropic medication that he was currently being treated with. He was of the view that Mr Georgakopoulos’ condition would not change no matter what the treatment was that he received. He indicated there was no treatment available that would change his condition.
The RANZCP Guidelines say this about Level 1 antidepressants, 1107:
The efficacy of antidepressants in the treatment of major depression has been extensively studied and substantiated relative to placebo in randomised, double-blinded, clinical trials. However, the decision to treat an individual patient with an antidepressant remains very much a matter of clinical judgement. This is because there are no reliable predictors of response to medication.
In dealing with the mode of action of antidepressants, the RANZCP Guidelines pointed out that neurotransmitter systems in the brain do not act independently of each other and medication which affects one system will also have an effect on other systems. The Guidelines then state, at 1108:
Therefore rather than primarily relying on neurotransmitter profile the choice of antidepressant should be based on a range of factors, such as side-effect profile and tolerability, cost, suicide risk and clinician’s experience.
As for the use of tricyclic antidepressants, which are older generation antidepressants, the Guidelines state, at 1110 – 1111:
The question of whether newer generations of antidepressants are as effective as tricyclic antidepressants is also unclear. A meta-analysis of the effectiveness and tolerability of TCAs versus SSRIs (Anderson, 2000), for example, failed to demonstrate a significant difference in efficacy but the SSRIs were much better tolerated.…
Overall, the differential efficacy of antidepressants in the treatment of major depressive disorders is not striking.…
In general, new generation antidepressants are safer options for first-line treatment (Peretti, 2000).
In cross-examination Dr Strauss said that tricyclic antidepressants had some awful side-effects. He also said that treatment with antidepressants drugs was an art, not a science.
The remaining treatment which has not been tried on Mr Georgakopoulos is ECT. According to the RANZCP Guidelines ECT is a safe and effective treatment for the more severe forms of depression, where its antidepressant effect is found to be superior to medication strategies. It is said that in practice it is usually reserved for patients who have not responded to several trials of medication.
In his report of 24 October 2013 Dr White interviewed Mr Georgakopoulos’ wife briefly who told him that admission to a hospital had been discussed at one time but that ECT or referral to a mood disorders clinic had not been discussed. He recommended that Mr Georgakopoulos be referred to a mood disorders clinic for a second opinion and for specific advice about physical treatments to which I have referred above. Dr White confirmed that in his discussions with Mrs Georgakopoulos she confirmed her husband did not wish to pursue the option of ECT.
In his report of 20 October 2015 Dr Strauss said he believed Mr Georgakopoulos had received adequate treatment and he did not believe that any further treatment will make any difference in his case. Dr Strauss said:
I believe that he has received optimal treatment and simply suggesting other pharmacological treatments for the sake of completeness, is inappropriate in this case.
In his examination-in-chief Dr Thomas agreed that ECT treatment might be appropriate but he said Mr Georgakopoulos told him he was not prepared to undergo that treatment. In fact he agreed that if Mr Georgakopoulos was not willing to undergo ECT, it was unlikely that it would be beneficial to him. According to Dr Thomas, ECT would only possibly be beneficial if Mr Georgakopoulos consented to undergoing the treatment.
Despite Dr Majoor’s opinion that some untried pharmacological treatment might yet produce some respite from the symptoms Mr Georgakopoulos now experiences, the weight of the evidence from psychiatrists and in fact the RANZCP Guidelines is that pharmacotherapy for major depressive disorder remains very much a matter of clinical judgement. That is because there are many variables which need to be taken into account and those are best assessed and accounted for by the treating psychiatrist. Mr Georgakopoulos’ evidence was that he felt more stable on the current mix of prescriptions given to him by Dr Thomas.
As for the possibility of trying ECT treatment, while there is some possibility of it producing a degree of relief to Mr Georgakopoulos, as Dr White said in his evidence, it would not do so unless Mr Georgakopoulos agreed to that treatment. It was quite clear to him that Mr Georgakopoulos was entirely opposed to undergoing ECT. In those circumstances, it should be apparent that Mr Georgakopoulos cannot be forced to undergo that treatment before it is considered that he has undergone all reasonable treatment.
Accordingly, I find that Mr Georgakopoulos has undergone all reasonable rehabilitative treatment. Further treatment is unlikely to produce any significant improvement.
I am not aware of any other relevant matters.
DEGREE OF PERMANENT IMPAIRMENT
Section 28 of the SRC Act relevantly provides:
(1) Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by reference to which the degree of the non-economic loss suffered by an employee as result of an injury or impairment shall be determined; and
(c)methods by which the degree of permanent impairment and degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
…
(4) Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from any injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.
The current Guide to the Assessment of the Degree of Permanent Impairment is Edition 2.1. Edition 2.1 applies to claims made on and from 1 December 2011.
In his report of 10 March 2015 Dr Strauss assessed Mr Georgakopoulos’ psychiatric impairment to be 25% using the Comcare Guide. According to Dr Strauss Mr Georgakopoulos needed supervision and direction in activities of daily living. He noted that his wife had to decrease her work hours to spend more time with her husband.
On the other hand, Dr Majoor assessed Mr Georgakopoulos as having 10% whole person impairment. She based her assessment on the ability of Mr Georgakopoulos to perform daily activities without supervision or assistance; his reactions to stressors of daily living with loss of personal and social efficiency; and distortions of thinking.
The introduction to Part 1, Division 1 of the Comcare Guide provides that in conducting an assessment, the assessor must have regard to the principles of assessment set out in Part 1 and the definitions contained in the Glossary. It also provides a description of the expression activities of daily living which is also set out in the Glossary as follows:
Activities of daily living are those activities that an employee needs to perform to function in a non-specific environment (that is, to live). Performance of Activities of Daily Living is measured by reference to primary biological and psychosocial function.
For the purposes of Chapter 5 which deals with psychiatric conditions, the activities of daily living are set out in Figure 5-A. They include the following:
Self-care, personal hygiene
Communication
Physical activity
Sensory function
Hand functions
Travel
Sexual function
Sleep
Social and recreational
Examples of each of the activities set out in Figure 5-A are included. The appropriate table for Psychiatric Conditions is table 5.1. There are notes to Table 5.1 which may need to be considered in aid of understanding the descriptions of the level of impairment set out on that Table.
Dr Strauss said that Mr Georgakopoulos needed supervision and direction in the activities of daily living. He also noted that his wife had to decrease her work hours to spend more time with her husband. Dr Strauss said that Mr Georgakopoulos showed reactions to stressors of daily living causing modification of daily living and he displayed definite disturbances in behaviour. He was also of the view that Mr Georgakopoulos showed marked disturbances in thinking and this was apparent in the course of his interview. Table 5.1 provides the following description of the level of impairment constituting a 25% Whole Person Impairment (WPI):
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 disturbances in thinking
· definite disturbances in behaviour.
The Notes to Table 5.1 describe what is meant by supervision and direction as follows:
Supervision means the immediate presence of a suitable person, responsible in whole or in part for the care of the employee.
Direction means the provision of direction to the employee by a suitably qualified person, responsible in whole or in part for the care of the employee
A suitable person is described as: a person capable of responsibly caring for the employee in an appropriate way.
A suitably qualified person means:
… a person with the necessary qualifications, experience and skills to provide appropriate direction to the employee. Such persons include medical practitioners, nursing staff and clinical psychologist.
Dr Majoor assessed Mr Georgakopoulos to have 10% WPI. Table 5.1 of the Guide for 10% WPI describes a level of impairment as:
Despite the presence of more than one of the following employee is capable of performing activities of daily living without supervision or assistance:
· reactions to stressors of daily living with minor loss of personal or social efficiency
· lack of conscience directed behaviour without harm to community or self
· minor distortions of thinking.
In her witness statement, Mrs Georgakopoulos said that when employed full-time she normally worked five days per week from 9 a.m. to 5 p.m. with some extended hours. In about 2013 she applied to her employer to become a part-time practice manager, working three days per week. The reason for her reduction in hours was so she could take care of her husband. Mrs Georgakopoulos also said that from 2009 onwards, she watched her husband become demotivated because of his psychiatric condition and she was concerned about his lack of motivation, his dark moods, lack of communication and deteriorating personal hygiene.
Mrs Georgakopoulos explained that she would go to work of a morning and give her husband various tasks to complete to fill up his day. Sometimes he would get the little household jobs done but often he would abandon them without getting very far. Those tasks including turning on and emptying the washing machine, feeding the pets and starting the evening meal. She would also tell him what food was in the refrigerator for him to eat. She discovered after some time that her husband was increasingly unable to do simple tasks and even a small problem would seem to defeat him. He gave up, sat down on the couch and when she got home at the end of the day it was apparent that he had simply sat there unable to do anything the whole or most of the day.
Concerned for his welfare, Mrs Georgakopoulos talked to her husband’s doctors, particularly Dr Thomas. She thought her husband might be too medicated to be able to do simple things and attempts were made to reduce his medication to see if there was a positive response. She said when there was a reduction in medication there was some pickup in his capacity to do things. While his mood appeared to be more stable he nevertheless lacked the motivation and would be easily defeated mentally by simple tasks when left on his own. She found him at the end of the working day sitting on the couch, without having eaten or started the evening meal or even having had a shower.
Mrs Georgakopoulos also described what she would do to assist her husband and supervise him doing things which he wouldn’t otherwise have done on his own. She needed to follow-up on doctor’s appointments and psychologists appointments which he would forget or ignore. She had to drive her husband to see Dr Thomas when he moved to Preston as it was too far for her husband to drive. She has to remind him to take his medication because he forgets to do so and also accompany him to the pharmacy to collect his scripts. She needed to reassure him if he was driving locally in traffic. Mrs Georgakopoulos said he became slow in his response to situations in traffic and she needed to point things out to get him to drive safely.
Mrs Georgakopoulos explained that her husband’s anxiety and depression appeared to have caused him to lose motivation to take care of daily hygiene. She is required to supervise him showering every day and she said she did not seem to be able to get him to shave or cut his hair. She had to insist and direct him to shower and wash regularly and make sure he put on clean clothes. Mealtimes were also problematic and she had to tell him what was in the fridge, suggest things to eat and supervise him getting things out and to stay with him while he ate his meal. If she did not stay with him during mealtimes, he would not eat at all. He was incapable of doing any paperwork or banking. All household and income management was now left to her.
Mr Georgakopoulos was not able to do the supermarket shopping. He was however able to go to the local shop near the house if it were for the purpose of purchasing a single item like a carton of milk.
More recently, Mr Georgakopoulos’ psychologist told him he should join the Men’s Shed in order to take part in some recreational or hobby activity. Apparently he used to work on cars doing restoration and repair work but had given that up because of his anxiety and depression. Mrs Georgakopoulos supervised him to get him out of the door and off to the Men’s Shed on a Thursday. Initially he went on a Wednesday but it was too busy and he found that intimidating. He has not yet shown signs that he was enjoying himself at Men’s Shed and he had to be given a push to keep him going. Mrs Georgakopoulos also had to encourage her husband to see his parents from time to time and to relate to other people in the family.
I had in evidence a report dated 24 May 2016 from Ms Therese Bradshaw, a psychologist who had been treating Mr Georgakopoulos. She said that since December 2013 she had been encouraging Mr Georgakopoulos to attend the Men’s Shed. She said that without her persistent encouragement, Mr Georgakopoulos would not have done so.
In an earlier report dated 4 November 2015 Ms Bradshaw referred to the report from Dr Majoor and said that the degree of Mr Georgakopoulos’ incapacity was more substantial than that reflected in her report. Ms Bradshaw said that Mr Georgakopoulos described needing supervision and direction in activities of daily living including attending to his personal presentation, scheduling activities, performing household tasks and motivating him to attend social activities. She also opined that Mr Georgakopoulos had experienced substantial loss of social relationships.
In her report dated 1 June 2015 Dr Majoor, at interview with Mr Georgakopoulos, was given much of the information to which I have referred above. As to his mental state, Dr Majoor said:
He appeared somewhat dishevelled and became tearful during the interview. He had a downcast gaze with poor eye contact and furrowed brow. His speech tended to trail off midway through a sentence and he would often not then complete the sentence. His speech was slow and psychomotor retardation was evident.… Thought content focused on Mr Georgakopoulos’ losses since the cessation of his employment with Telstra. He showed a folder of previous award certificates that he had won during his employment at Telstra. Depressive themes of hopelessness, helplessness and worthlessness were expressed. Themes of guilt, being a burden to his family and being grateful for his family’s support were evident. Mr Georgakopoulos expressed thoughts of life not being worth living but no suicidal intent or planning was evident. Mr Georgakopoulos stated that he had paranoid thinking but no persecutory ideation of delusional intensity was listed. No perceptual disturbances were evident. Mr Georgakopoulos appeared to have decreased concentration and attention in the interview. Mr Georgakopoulos’ affect appeared depressed, with decreased range and reactivity.…
In response to a question regarding the nature and extent of Mr Georgakopoulos’ impairment, Dr Majoor said:
Mr Georgakopoulos is suffering from a Major Depressive Disorder, which has become chronic in duration. He fulfils DSM-IV-TR criteria for this disorder as he displays a pervasively lowered mood with the increased interest and enjoyment in activities, poor sleep, decreased appetite, psychomotor retardation, feelings of worthlessness and guilt, diminished concentration, fatigue and loss of energy and suicidal ideation. Mr Georgakopoulos’ Major Depressive Disorder is moderately-severe with a GAF score of 45, meaning that he has marked impairment in social and occupational functioning with serious symptoms at the level of suicidal ideation, social withdrawal and impairments in thinking.
The reports of Dr Strauss and Dr Majoor expressed similar findings in respect of Mr Georgakopoulos’ mental state and the extent of his impairment. Both have indicated a marked impairment in social and occupational functioning and impairment in his thinking. His memory and concentration were patchy or diminished. Insight and judgement were limited. His speech was described as very organised in a structured way, suggesting obsessional traits and that it was slow, evidencing psychomotor retardation. No perceptual disturbances were apparent. Although bearded and wearing jeans, Dr Strauss described him as reasonably well groomed while Dr Majoor said he appeared somewhat dishevelled and looked tired and older than his stated age. There can be no question that Mr Georgakopoulos has significant impairments in many aspects of his day-to-day functioning.
The evidence of Mrs Georgakopoulos, which was not contradicted, plainly indicates Mr Georgakopoulos required supervision and direction with performing activities of daily living. There can be no question that Mrs Georgakopoulos fits the description of a suitable person who is capable of responsibly caring for her husband in an appropriate way. While Mr J Wallace of counsel, who appeared on behalf of Telstra, submitted that direction could only be given by a suitably qualified person and that person should be medically qualified. With respect, I disagree.
It is sufficiently clear that the Comcare Guide is a legislative instrument made by the Minister on the day on which the Guide is approved (s. 28(3A) of the SRC Act). Legislative instruments are to be construed in the same way as any other statutory provision and the Acts Interpretation Act 1901 applies (s. 13 of the Legislative Instruments Act 2003). However notes to an Act do not form part of that Act. Note 6 to Table 5.1 states that persons with necessary qualifications, experience and skills to provide appropriate direction includes medical practitioners, nursing staff and clinical psychologists. The fact that the word include is used necessarily means that the description provided is not exhaustive and persons who are not medically qualified may also be suitably qualified. The word include means part of the whole.
That being the case, a WPI of 10% cannot be correct. The evidence indicates Mr Georgakopoulos has a need for some supervision and direction in activities of daily living including self-care and personal hygiene, communication, travel and social and recreational activities. The word need is defined in the Australian Concise Oxford Dictionary, (3rd ed, 1997) as: stand in want of; require or, when used as a noun, a want or requirement. In my opinion, the evidence discloses that Mr Georgakopoulos has reactions to stressors of daily living which cause modification of daily living patterns and a definite disturbance in behaviour. He does not have a marked disturbance in thinking although there are minor distortions in his thinking. The evidence discloses a clear need for some supervision and direction in activities of daily living. That being the case, I find that Mr Georgakopoulos has a 20% WPI. That is the appropriate level of impairment under Table 5.1 of the Comcare Guide.
NON-ECONOMIC LOSS
Section 27 of the SRC Act provides for compensation for non-economic loss. Relevantly, it provides:
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2)The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
…
Part 2 Division 2 of the Comcare Guide deals with non-economic loss. As indicated by the formula set out in s. 27 of the SRC Act, the amount of compensation payable for non-economic loss is divided into two components. There are six tables which are used to calculate the B component.
Mr Georgakopoulos completed a Non-Economic Loss Questionnaire which included his assessment of the score on each of the relevant tables as well as the examining doctor’s score. The score recorded by Mr Georgakopoulos on Table 1 dealing with pain and suffering was consistent with the assessment of the examining doctor but on the basis of his report only. The examining doctor agreed with the remaining table scores recorded by Mr Georgakopoulos. Those scores are as follows:
pain– 4
suffering – 4
mobility – 3
social relationships – 4
recreational and leisure activities – 5
other – 1
The total scores are calculated as follows:
pain and suffering – 4 x 0.5 = 2
4 x 0.5 = 2
mobility – 3 x 0.6 = 1.8
social relationships – 4 x 0.6 = 2.4
recreational and leisure activities – 5 x 0.6 = 3
other loss – 1 x 1.0 = 1
Total 12.2
Percentage loss 12.2/15 = 81.33%
There was no evidence which contradicted the non-economic scores which the examining doctor agreed were appropriate. Accordingly, I find that score must be applied to Mr Georgakopoulos in the calculation of his non-economic loss.
CONCLUSIONS
Having considered the matters set out in s. 24(2) of the SRC Act dealing with permanent impairment, I have found that Mr Georgakopoulos’ mental injury is permanent in that it is likely to continue indefinitely. I have also found that Mr Georgakopoulos has undertaken all reasonable rehabilitation treatment for his impairment. His mental condition is unlikely to improve to any significant extent.
Using the Comcare Guide to the degree of permanent impairment, and in particular Table 5.1 dealing with psychiatric conditions, I have found that Mr Georgakopoulos’ WPI is 20%. Consistent with the examining doctor’s score, I have found that Mr Georgakopoulos’ non-economic loss on the application of the relevant tables under Part 2 Division 2 of the Comcare Guide results in a percentage loss of 81.33%. Mr Georgakopoulos is entitled to compensation for his permanent impairment in accordance with my findings.
Accordingly, I find that the decision made by Telstra on 21 July 2015 refusing Mr Georgakopoulos’ claim for permanent impairment and non-economic loss was not the correct decision. I set aside that decision and in substitution find that Mr Georgakopoulos is entitled to compensation for his permanent impairment and non-economic loss.
Having set aside the reviewable decision in this case and having made a decision in substitution for the reviewable decision which is more favourable to Mr Georgakopoulos than the reviewable decision, pursuant to s. 67(8)(b) of the SRC Act, I order that the costs of this proceeding incurred by Mr Georgakopoulos be paid by Telstra.
90. I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member
[sgd]........................................................................
Associate
Dated 31 August 2016
Date of hearing 8 – 9 June 2016 Counsel for the Applicant Mark Carey Solicitors for the Applicant Ellis Palmos & Co Counsel for the Respondent John Wallace Solicitors for the Respondent Sparke Helmore
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