GORDON SLATER and TELSTRA CORPORATION LIMITED
[2009] AATA 434
•17 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 434
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200200563; 2008/2357
GENERAL ADMINISTRATIVE DIVISION ) Re GORDON SLATER Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Senior Member Bernard J McCabe Date17 June 2009
PlaceBrisbane (video-link to Perth, Australia and Newcastle upon Tyne, United Kingdom)
Decision The Tribunal affirms the reviewable decisions. .....................[Sgd].........................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Injury – Accepted knee condition – Whether injury results in total and permanent incapacity for work – Earlier proceedings limit scope of application to evidence and changes in applicant’s circumstances since 1 June 2002 – No medical evidence or change suggest applicant’s condition incapacitated for work – Decision affirmed
WORKERS’ COMPENSATION – Injury – Psychiatric condition – Applicant claims psychiatric condition attributable to injury for accepted knee condition – Whether respondent liable to pay compensation – Psychiatric condition not connected to work – Respondent not liable to pay compensation – Decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) ss 25(4A), 42D, 43
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 19, 21, 36, 41, 69
Re Slater and Telstra Corporation Limited [2002] AATA 597
Re Slater and Telstra Corporation Limited [2005] AATA 527
Slater v Telstra Corporation Limited [2001] FCA 1417
REASONS FOR DECISION
17 June 2009 Senior Member Bernard J McCabe 1. Mr Gordon Slater, the applicant, injured his knee at work on 11 July 1996. He was employed by Telstra, the respondent, at the time. Telstra accepted liability for his knee injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). Mr Slater says he also developed a psychiatric condition in connection with his knee injury.
2. Whatever the cause of his various health problems, Mr Slater claims he is now totally incapacitated for work. He seeks compensation from Telstra on that basis. Telstra disagrees. Mr Slater has asked the Tribunal to reconsider Telstra’s decisions.
3.
The claim in respect of the knee is Application No Q 200200563. It arose out of a reviewable decision dated 5 June 2002. The decision-maker concluded
Mr Slater was “fit for full time employment in suitable employment” notwithstanding his knee condition. The “reasons for decision” that accompany the reviewable decision do not shed any light on the thinking process behind the determination. A perusal of the original determination, which is found in the T-documents at 34-35, adds nothing. During the course of the protracted hearing process, it became apparent that Telstra believed the applicant’s entitlement to compensation in respect of incapacity pursuant to s 19 of the Act ought to be calculated on the basis that he was still able to work in a range of clerical jobs. Those jobs had been identified in an earlier decision of the Tribunal: Re Slater and Telstra Corporation Limited
[2002] AATA 597.
4. The claim in respect of the psychiatric condition is Application No 2008/2357. It arose out of a reviewable decision dated 15 May 2008. Telstra denied the applicant suffered from a psychiatric condition that was connected to his work.
5.
The proceedings have a lengthy history. Mr Slater made a number of applications to the Tribunal (including an appeal to the Full Federal Court:
Slater v Telstra[2001] FCA 1417) in which he sought review of Telstra’s decisions in relation to his various claims. I will not rehearse the history of those proceedings in detail, although I note the Tribunal concluded in Re Slater and Telstra Corporation Limited [2002] AATA 597 that Mr Slater was fit for full-time work in suitable employment as of July 2002: see [79].
6.
In light of that finding, I decided to use the power under s 25(4A) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) to direct that these proceedings focus on whether Mr Slater’s condition had deteriorated (in the sense that he had become totally and permanently incapacitated for work) since
1 June 2002. My reasons for making that direction are recorded in Re Slater and Telstra Corporation Limited [2005] AATA 527. I expressly declined to revisit the issues which had already been addressed.
7. The proceedings have been subject to frustrating delays notwithstanding that ruling. Mr Slater has repeatedly argued over the scope of the dispute, the admissibility of evidence and the obligations of the parties to provide information. He tried on a number of occasions to dispute the factual basis of the conclusions in the earlier proceedings. The delays have been exacerbated by the fact that Mr Slater conducted his application from his home in the United Kingdom. This was originally permitted in an attempt to accommodate Mr Slater’s special circumstances. He was not legally represented, and he said he could not afford to come to Australia. There was a further delay when Mr Slater brought a fresh application claiming that he was suffering from a psychiatric condition that was connected with his work.
8. The hearing was conducted in two stages. Mr Slater gave evidence by video-link in December 2008. Ms Leonie Coxon, a psychologist, gave evidence by video-link in February 2009. The parties were afforded the opportunity to make written submissions.
9.
I am not persuaded Mr Slater has developed a psychiatric condition that can be connected to his work at Telstra. It follows the respondent is not liable under s 14 of the Act with respect to that condition. While I accept Mr Slater’s knee condition affects his capacity for work, I am not satisfied the medical evidence establishes
Mr Slater is incapable of working in any occupation as a consequence of his workplace injuries. It follows his claim for compensation for total incapacity pursuant to s 19 of the Act cannot succeed. I explain my reasons below.
The medical evidence in relation to a psychiatric condition
10. Mr Slater gave evidence at the hearing about what happened on the day he injured his knee. He testified he was trying to manipulate some cable when his knee “popped” or "exploded”. He said he then fell to his left side, although he accepted his original incident report did not refer to a fall. He said he could not move his knee. He said he felt helpless as he lay there in the immediate aftermath of the accident. He did not know what was wrong with his knee but he knew it was painful. He said he was shocked and confused.
11.
Mr Slater said he was not aware he had a psychiatric condition until it was diagnosed by Ms Coxon, the psychologist, in connection with these proceedings.
Mr Slater sought Ms Coxon’s opinion after comments made by Dr Nigel Brewster, an orthopaedic surgeon in the United Kingdom who examined him at the respondent’s request. (Dr Brewster opined the applicant’s physical symptoms were explained by his psychological state rather than an organic cause. I note Dr Peter McMeniman also recommended a psychiatric assessment in his report of 31 January 2008.)
Mr Slater acknowledged he took anti-depressants for approximately a month in 2005 when he saw his general practitioner and complained of feeling depressed. He conceded the various medical records tendered in evidence do not disclose a lengthy history of complaints about psychiatric symptoms, although he added that none of the doctors he saw ever asked him about those things.
12.
Mr Slater’s initial interaction with Ms Coxon was by means of the Skype internet chat service. The Skype discussion was conducted without a camera.
Ms Coxon gave evidence that it was the first time she saw a patient in this way, although she added it was becoming more common for psychologists to use technology of this kind to interact with patients. She said she administered some diagnostic tests during the course of the interview. She also sent Mr Slater some tests that he completed and returned to her. She said she asked him about some of his responses and the material was used to compile the opinion set out in her reports. A copy of her initial report dated 2 October 2007 was provided to Dr Jill Reddan, a psychiatrist engaged by the respondent. Ms Coxon was asked to offer a response to Dr Reddan’s comments at the hearing.
13. Ms Coxon subsequently met the applicant in person during a trip to Europe on 7 July 2008. She said she thought it was desirable to meet Mr Slater in person in light of criticisms that had been made by the respondent’s insurer of the internet interview process. She took the opportunity to administer a number of the tests she had previously administered over the internet. She prepared a report following that meeting which is dated 31 July 2008.
14. Ms Coxon concluded the applicant exhibited what may be described as a constellation of psychiatric symptoms. She said in her report of 2 October 2007 that Mr Slater exhibited “moderately high levels of depression anxiety symptoms and late onset post trauma stress symptoms, combined with anger, irritability and social withdrawal”. She specifically diagnosed post traumatic stress disorder (“PTSD”). She observed the applicant’s current condition was “directly related to his work injury and the associated incapacity to work”. She added she was of the view that Mr Slater was now unable to perform any kind of work, although her report of 2 October 2007 does not include an assessment of impairment. The report of 2 October 2007 does not confirm whether the psychiatric condition renders an otherwise able (or partially able) person unsuitable for work or if she accepts the applicant’s claim that he is in any event unable to work at all because of his physical condition. She essentially repeated her conclusions in her report of 31 July 2008.
15.
The respondent relied on Dr Reddan, who filed two reports dated
11 February 2008 following an interview with the applicant and a further report dated 12 November 2008 commenting on Ms Coxon’s material.
16. Dr Reddan criticised aspects of Ms Coxon’s opinion. Dr Reddan questioned the way in which the psychometric instruments had been administered at the various interviews. She also criticised Ms Coxon’s reliance on psychometric instruments in the absence of a proper mental state exam. Dr Reddan said a mental state exam was desirable because it permitted a comparison to be made between the self-reported information in the psychometric instruments and the more objective assessment of the applicant’s state by the clinician. Dr Reddan said it was impossible to make out a diagnosis of PTSD because there was no “Criterion A” event. She also considered it was impossible to diagnose a somatoform disorder. She acknowledged the applicant may indeed be experiencing some symptoms of depression, dysphoria and anxiety in light of the protracted appeals process and his physical symptoms. In a carefully reasoned report, Dr Reddan said the applicant did not suffer from any diagnosable psychiatric condition and did not require psychiatric treatment. She added that there was no evidence of a pre-existing psychiatric condition at the time of his original injury.
17.
I prefer the opinion of Dr Reddan to that of Ms Coxon. Dr Reddan is an experienced medical practitioner. Dr Reddan raised important and unanswered questions about the diagnosis offered by Ms Coxon (eg, the apparent absence of a “Criterion A” event) and the diagnostic process (in particular, the extent of the reliance on Mr Slater’s self-reported information in the psychometric instruments).
Dr Reddan is an independent expert, and I am satisfied from her report that she was speaking objectively. Her opinions were expressed carefully and defended in a considered way. Ms Coxon, in contrast, exhibited a more defensive tone in the course of her evidence and her written report of 31 July 2008 that called into question her objectivity.
18. The applicant criticised the opinion of Dr Reddan on the basis that she failed to take into account the report of Dr David Clish. Dr Clish prepared a report for the United Kingdom’s Department of Social Security (“the DSS”), which concluded, in effect, that Mr Slater was able to satisfy the statutory criteria that suggested he was totally incapacitated for work. It is unclear whether Dr Clish’s report (such as it was) would have been of any assistance to Dr Reddan, however. The report was structured as a series of responses to questions apparently required under the relevant legislation in the United Kingdom. It was not a psychiatric assessment. There is no evidence to suggest the applicant asked Dr Reddan to consider the report. I do not think the applicant’s objection has any substance.
19. I am not satisfied the applicant suffers from a psychiatric condition. The respondent’s reviewable decision to that effect which denies liability under s 14 of the Act must therefore be affirmed.
Has the applicant’s knee condition worsened?
20. Mr Slater has been assessed by the DSS as being incapable of work. He is paid benefits on that basis. He produced to the Tribunal a number of medical certificates from various medical practitioners in Australia and the United Kingdom saying that he is unable to work. Some of them suggest he can never work again.
21. Mr Slater helpfully provided the reasons for a decision that accompanied his successful appeal in September 2001 to the United Kingdom’s Appeals Service for Social Security, Child Support and Vaccine Damage against a decision in 1999 that he was not entitled to “incapacity credits”. The reasons shed some light on the statutory regime under which social security payments of this kind are administered in the United Kingdom. The reasons show the decision-maker was required to apply specific criteria when assessing the application for a pension. The appeal tribunal concluded Mr Slater satisfied the criteria and was entitled to benefits on that basis. My task under the Australian legislation is different. I must consider all of the evidence afresh and decide whether the applicant is (and has been, since 2002) completely incapacitated for any kind of work. I am not applying the statutory criteria that were applied by the appeal tribunal in the United Kingdom in 2001, so it is conceivable we could reach different conclusions.
22.
I note the applicant was required to attend an interview with Dr Clish on
5 March 2008 in connection with his ongoing entitlement to benefits in the United Kingdom. I have already noted that Dr Clish’s report is presented as a series of responses to questions asked in the form. The questions appear to be directed towards the statutory criteria. It is difficult to know what to make of the report albeit that is was obviously sufficient to convince the DSS that Mr Slater’s condition was such that benefits were still payable.
23.
The applicant provided copies of numerous certificates from his general practitioner in the period under review. The various certificates assert Mr Slater was unfit for any kind of work. I was also provided with a copy of a report from
Dr Christopher Gerber, a consultant neurosurgeon, dated 28 January 2007. I understand Dr Gerber’s report was commissioned by the applicant. Dr Gerber said the applicant suffered from a back problem which could be traced back to a car accident in 1995, although Dr Gerber suggested it was also connected with constitutional degenerative change. Dr Gerber added:
[the spinal problems] are severe enough to limit his working capacity but I understand he has other problems particularly with regard to his knee and wrist which, if anything, limit his ability to work more.
24.
Mr Slater highlighted these remarks in his written submissions, but they are of limited assistance to his case. Dr Gerber is a neurosurgeon, and he was clearly recounting information that he had been told – most likely by the applicant – rather than offering an opinion about the applicant’s knee condition. In any event,
Dr Gerber’s comments do not suggest the applicant’s knee condition is completely debilitating.
25. I was also provided with the letter of referral from the applicant’s general practitioner, Dr Andrew Long, to a consultant orthopaedic surgeon, Dr R Gregory, dated 23 August 2005. In that letter, Dr Long reported Mr Slater’s claim that the knee condition was worsening, adding: “He is keen on further assessment as to whether further treatment is now appropriate or not”. Dr Gregory’s notes record that the applicant “is now unemployed, the reason for which is partly due to pain in the knee”. The notes record Mr Slater’s accounts of pain and other difficulty but do not reach any other clear conclusion.
26. The respondent arranged for Mr Slater to see Dr Brewster, a consultant orthopaedic surgeon, on 8 February 2007. Dr Brewster prepared a report and a letter to Mr Slater dated 8 February 2008, which is included in the T-documents. In the report, Dr Brewster reviewed the applicant’s medical history and recorded his observations upon examination, concluding:
Mr Slater’s knee is essentially normal on examination and on a recent MRI scan at the end of 2005. … I can find no structural reason for Mr Slater’s disability in relation to this left knee injury. I feel that his main disability, as a result of the left knee injury, is due to the prolonged course of his worker’s compensation claim causing chronic illness behaviour in Mr Slater and leading to this chronic and permanent disability.
27. Dr Brewster went on to say that the applicant’s physical symptoms did not prevent him from undertaking suitable paid work but suggested the chronic illness behaviour would be an insurmountable obstacle to returning to employment. He repeated those views in his letter to Mr Slater dated 15 July 2007. I have already noted that these comments prompted Mr Slater to seek a psychologist’s opinion.
28.
Mr Slater criticised Dr Brewster’s opinion on several grounds. He said
Dr Brewster had not been shown a number of reports, including that of Drs Clish, Gerber, Acornley and Gholkar. Dr A Acornley is an orthopaedic registrar who saw
Mr Slater at a clinic after his MRI scan 25 January 2006. Dr Acornley’s report is brief. It is unclear how Dr Acornley’s report would have assisted Dr Brewster. Dr A Gholkar is a consultant neuroradiologist. His report dated 13 July 1999 refers to an MRI of
Mr Slater’s cervical spine. Once again, it is difficult to see how that information would have affected Dr Brewster’s report if it had been provided to him.
29. The respondent also arranged for a fresh report from Dr McMeniman, an orthopaedic surgeon. Dr McMeniman had seen Mr Slater some years ago. His most recent report is dated 31 January 2008. In that report, Dr McMeniman opined:
He currently has symptoms of early degenerative joint disease and of ligamentous instability, however neither of these symptoms appear to be of sufficient severity to warrant consideration of treatment and … I do not think that his current symptomotology and clinical examination would suggest that he has a disability sufficient to prevent him from returning to work in [a range of occupations mentioned in the report].
30. Dr McMeniman also suggested the applicant be referred for psychological assessment.
31.
I prefer the views of Drs Brewster and McMeniman. They are both well-credentialed experts. Their reports carefully reviewed the relevant evidence. They are both in a good position to form a view, and I was not provided with a compelling alternative view. Both are independent experts. Dr Brewster, in particular, is located in the United Kingdom, so he presumably does not have any sort of contact with the respondent or its solicitors. I note Dr Brewster agreed the applicant might not be able to work again. To that extent, Dr Brewster’s opinion is consistent with that of
Mr Slater’s treating doctors and Dr Clish, who have supplied information to the DSS. But both Drs Brewster and McMeniman were adamant that Mr Slater’s knee injury was not the cause of the problem.
Conclusion with respect to the medical evidence
32. I am satisfied the applicant’s work-related knee condition has not significantly deteriorated since 1 June 2002. The Tribunal’s decided in Re Slater and Telstra Corporation Limited [2002] AATA 597 that he was able to work in clerical and sedentary roles at that time. The medical evidence from Dr McMeninam in particular makes it clear Mr Slater is still fit for that sort of work – or, more precisely, his knee condition does not of itself render Mr Slater unfit for that work. I have also concluded he did not suffer from a work-related psychiatric condition. I am ultimately unable to say whether other factors in the applicant’s personality or physical health combine to prevent him from working. In any event, Telstra cannot be held responsible for those other factors since they are not connected to Mr Slater’s work.
Other matters
33.
Mr Slater was critical of Telstra’s management of his case. He noted s 69 of the Act required Telstra to quickly arrange for rehabilitation of injured employees.
Mr Slater says that was not done in his case. He noted Dr Brewster was concerned that the failure to commence a timely rehabilitation program might have been a factor in whatever difficulties Mr Slater is currently experiencing. Mr Slater also pointed to what he says is Telstra’s failure to comply with its obligations under s 36 or under policy guidelines adopted pursuant to s 41. I ultimately do not need to resolve any of these complaints as they do not go to the issues before me. There is much about this case that could have been handled differently. Ultimately, though, mistakes (if indeed they were mistakes) in the handling of the various claims cannot distract me from the central questions in this case which turn on the medical evidence.
34. Mr Slater also questioned whether I had jurisdiction to calculate entitlements for compensation. He pointed out the primary decision-maker had not considered these matters. He also questioned the way in which the respondent treated a lump sum payment that had been paid to him in respect of superannuation. The respondent said I was able to deal with these matters, although the respondent submitted I should do so by remitting them to the decision-maker. As I explain below, there is substance to Mr Slater’s argument.
Conclusion
35. In respect of Application No 2008/2357, the Tribunal affirms the reviewable decision. The respondent is not liable to pay compensation in respect of the claimed condition of PTSD or any other psychiatric condition.
36. The formulation of the decision in Application No Q 200200563 requires more care. The respondent has asked that I make a decision which incorporates on its face a series of findings and which remits the reviewable decision to the respondent to calculate the amount of compensation that is payable to the applicant in circumstances where he is still able to work, albeit not in his former occupation.
37.
I do not think I can formulate the decision in the way the respondent requested. Section 43(1) of the AAT Act says I have the power to affirm, vary or set aside the decision under review. While I have the power to remit matters to the decision-maker under s 43 when I set a decision aside, and I have the power to remit matters to the decision-maker at any point for further consideration under s 42D,
s 43 does not allow me to affirm a decision and then proceed to make additional orders. In this case, the reviewable decision is expressed briefly, even tersely. It concludes without elaboration that Mr Slater is fit for full-time employment in a suitable occupation. The reviewable decision itself does not identify what amounts to suitable employment, nor does it refer to the correct rate of compensation payable to Mr Slater. Moreover, at the outset of the proceedings, I decided that the proceedings would be confined to the issue of whether Mr Slater’s condition had deteriorated since June 2002. After a lengthy process which was fought by the parties at every step of the way, I am able to conclude that the original decision was right. If that decision had gone further, I might be in a position to do so as well. But it did not. If the parties wish to contest the amount of compensation that is now payable in respect of Mr Slater’s partial incapacity pursuant to s 19 of the Act, or the implications of s 21, it remains open to them to do so. If they do join issue on those questions, they will presumably have regard to the findings of fact I have made in this decision. If they do not, the conclusions of Mr Kenny, Member, in Re Slater and Telstra Corporation Limited [2002] AATA 597 will stand. But having concluded – and I do – that the reviewable decision in Application No Q 200200563 is affirmed, these proceeding are at an end.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
Signed:.................................[Sgd].............................................
Michael Buckingham, AssociateDates of Hearing 18 December 2008
6 February 2009
Date of Decision 17 June 2009
Applicant was self-represented
Solicitor for the respondent Sparke Helmore Lawyers
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