Graves and Comcare
[2008] AATA 965
•30 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 965
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1457
GENERAL ADMINISTRATIVE DIVISION ) 2007/0791
2008/1047Re LOUISE GRAVES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr I Alexander, Member Date30 October 2008
PlaceSydney
Decision For the reasons given below the Tribunal decides that:
a) The reviewable decision of 5 October 2006 is set aside.
b) The reviewable decision of 6 March 2007 is varied so that Mrs Graves has suffered 10% Whole Person Impairment as a result of her work related injury of “Major Depressive Disorder with secondary co-morbid Alcohol Dependence” and is entitled to claim compensation pursuant to s 24 and s 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
c) The reviewable decision of 7 March 2008 is set aside and in substitution it is decided that Mrs Graves continues to suffer the effects of her work related injuries namely:
(i) injury to her right ear resulting in permanent tinnitus; and
(ii) Major Depressive Disorder with secondary Alcohol Dependence;
and is entitled to claim compensation under s 16 and s 19 of the Act.
d) The decision on the matter of costs is reserved. The parties have 14 calendar days from the date of this decision to advise the Tribunal if they wish to put further argument on the matter of costs. If they do not, the Tribunal will make an order pursuant to s 67(8) of the Act that the respondent pay Mrs Graves’ costs.
...............[sgd]........................
Dr I Alexander
Member
CATCHWORDS
COMPENSATION – Injury – Disease – Ailment – Tax Office Employee – Claim for injury to acoustic nerve right ear – Major Depressive Disorder – Liability accepted – Determination no longer suffers effects – Whether continues to suffer effects of injury or disease – Whether contributed to in a material degree by employment – Whether permanent impairment – Held injury to right ear with permanent tinnitus – Major Depressive Disorder with secondary Alcohol Dependence – Injury materially contributed to by employment – Continues to suffer effects – Psychiatric condition permanent impairment – Reviewable decisions set aside and varied – Costs reserved
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19, 24, 27, 67
Canute v Comcare (2006) 226 CLR 535
Comcare v Sahu Khan (2007) 156 FCR 536
Wiegand v Comcare (2002) 72 ALD 795
Guide to the Assessment of the Degree of Permanent Impairment, Table 5.1, Table 7.1, Table 7.2, Table 13.1
REASONS FOR DECISION
30 October 2008 Dr I Alexander, Member
INTRODUCTION
1. Mrs Graves seeks review of three decisions that arose from an incident that occurred in the course of her employment as a client service representative by the Australian Tax Office (“ATO”).
2. On the 6 April 2004, while working at the ATO call centre in Parramatta, Mrs Graves experienced two loud high pitched noises through the headset on her right ear. As a result of this incident she claimed to have suffered immediate symptoms that included pain, nausea, dizziness and subsequently the onset of a ringing noise (tinnitus) in her right ear.
3. On 29 May 2004 Comcare accepted liability under s 14 of the Safety, Rehabilitation & Compensation Act 1988 (“the Act”) for “injury to acoustic nerve (right).”
4. In December 2004 Mrs Graves was diagnosed as suffering from “Major Depression with Suicidal Thoughts”. Comcare accepted liability for medical treatment by a psychiatrist and a psychologist pursuant to s 16 of the Act in respect of her accepted claim for injury to her acoustic nerve and not on the basis of a claim for a distinct psychological injury.
5. On 28 October 2005 Mrs Graves submitted a claim for compensation because she had suffered 26% permanent injury in respect of acoustic damage to her “right ear nerve” and 25% permanent injury in respect of major depression with suicidal thoughts.
6. In a reviewable decision dated 5 October 2006, Comcare affirmed a determination of 6 April 2006 that Mrs Graves was entitled to compensation for 15% whole person impairment (“WPI”) under s 24 and s 27 of the Act.
7. In that decision the independent review officer stated that Mrs Graves had “accepted injuries of ‘acoustic nerve (right)’ sustained on 29 May 2004 and a secondary condition of ‘major depressive disorder’ pursuant to section 14 of the Act” and concluded that she was entitled to compensation for a “5% permanent impairment in respect of her ‘acoustic nerve (right) injury’ under Table 7.2 of the Guide to the Assessment of the Degree of Permanent Impairment … and a 10% permanent impairment in respect of her ‘major depressive disorder injury’ under Table 5.1”. This decision is the subject of application N2006/1457.
8. I note that this was in fact the first time that Comcare had acknowledged, in writing, that Mrs Graves had suffered a secondary psychological injury that was linked to the acoustic incident at work.
9. In June 2006 Mrs Graves submitted a new claim for compensation that included a claim in respect of “alcohol dependence”.
10. In a determination dated 21 December 2006 Comcare denied liability for alcohol dependence because it was not an injury but a symptom that had arisen from her accepted condition of major depressive disorder. This decision is not currently under review.
11. I note that this decision was based on reports provided by both Mrs Graves’ treating psychiatrist, Dr Baker, and a psychiatrist engaged by Comcare, Dr Smith.
12. On 6 March 2007 Comcare issued a reconsideration on own motion and varied its decision of 6 April 2006 on the grounds that the method used for combining Mrs Graves’ impairments was not consistent with the decision of the High Court in Canute v Comcare (2006) 226 CLR 535.
13. Liability was again accepted for 5% WPI in respect of “acoustic nerve (right)” injury and 10% WPI in respect of “major depressive disorder.” The impairments were not combined, and it was determined that as the 5% WPI in respect of the right acoustic injury did not meet the 10% WPI threshold required by s 24 of the Act compensation was payable only for 10% WPI in respect of “major depressive disorder”. This decision is the subject of application 2007/0791.
14. On 5 December 2007, relying on the opinion of Dr Smith, Comcare determined that as of 7 December 2007 Mrs Graves no longer suffered the effects of her compensable injuries and that compensation pursuant to s 16 and s 19 of the Act was no longer payable.
15. Comcare affirmed this decision by a determination dated 7 March 2008 on the grounds that Mrs Graves’ current incapacity to work and need for medical treatment was due to a “psychological condition” that was no longer attributable to the acoustic incident that had occurred in April 2004. This decision is the subject of application 2008/1047.
16. For reasons that follow, I have decided that Mrs Graves continues to suffer from the effects of her work related injuries and is therefore entitled to claim compensation pursuant to s 16 and s 19 of the Act. I have also decided that Mrs Graves has suffered permanent impairment as a result of her work related injuries in the order of 10% Whole Person Impairment (WPI) and is entitled to claim compensation pursuant to s 24 and s 27 of the Act.
ISSUES
17. Section 14 of the Act determines that Comcare is liable to pay compensation “in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment”.
18. Section 4 of the Act defined “injury” as :
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment ; or
…
“Ailment” is defined to mean: “any physical or mental ailment, disorder, defect or morbid condition …”.
19. Sections 16 and 19 of the Act provide for compensation for medical expenses or incapacity, respectively, in relation to an injury.
20. Sections 24 and 27 provide for compensation where an injury to an employee results in permanent impairment. Section 24(1)(b), however, determines that if an employee has a permanent impairment, other than hearing loss, and the degree of permanent impairment is less than 10% compensation is not payable. The degree of whole person impairment (WPI) being assessed according to the tables in the Comcare Guide to the Assessment of the Degree of Permanent Impairment (”Comcare Guide”).
21. It is clear from the material before me that Comcare had accepted liability for two compensable injuries repeatedly identified in the documents as “injury to acoustic nerve (right)” and “major depressive disorder”.
22. It is also clear that the purported injury to the right ”acoustic nerve” occurred in the course of Mrs Graves’ employment, and it would appear that Comcare had, at least at first instance, considered that the right ”acoustic nerve” itself had been damaged.
23. What is not so clear are Comcare’s reasons for accepting liability for the depressive disorder. Comcare appeared to accept liability for the treatment of Mrs Graves’ condition without any assessment of the nature of that condition with respect to the meaning of an injury in terms of the Act. The major depressive disorder was accepted as a “secondary condition” to the acoustic nerve injury. As her psychiatric disorder was diagnosed some months later I can only presume that Comcare had decided that this disorder was a mental injury that was causally connected to the acoustic nerve injury and that therefore had arisen out of Mrs Graves’ employment.
24. This approach seems somewhat unusual as a ”major depressive disorder” would generally be considered to fall within the definition of a disease.
25. Section 4 defined “disease” as :
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment.
…
26. The relevance of the above is that, in my opinion, the manner in which Comcare has dealt with Mrs Graves’ injuries over time has contributed to some of the difficulty in resolving the matters raised by the reviewable decisions.
27. I note that at the hearing counsel for the respondent stated that the respondent did not resile from the admission of liability in relation to depression, particularly as it had been accepted for a lengthy period. However, it was submitted that the question to be considered was whether work related factors continue to make a material contribution to Mrs Graves’ current psychological condition.
28. In order to address this question I consider that it is helpful to re-examine the nature of Mrs Graves’ psychological condition and to determine whether it was an injury within the meaning of section 4 of the Act.
29. Therefore the issues that need to be considered are:
(i)Does Mrs Graves continue to suffer any effects of her acoustic nerve injury so that she is entitled to claim compensation pursuant to s 16 and s 19 of the Act?
(ii)If so, does Mrs Graves suffer any permanent impairment as a result of this injury?
(iii)If so, is the degree of WPI according to Table 7.2 of the Comcare Guide 10% or greater so that she is entitled to claim compensation pursuant to s 24 or s 27 of the Act?
(iv)What is the nature of Mrs Graves’ psychological condition and is it an injury within the meaning of s 4 of the Act?
(v)If so, does Mrs Graves continue to suffer any effects of this injury so that she is entitled to claim compensation pursuant to s 16 or s 19 of the Act?
(vi)If so, does Mrs Graves suffer any permanent impairment as a result of this injury?
(vii)If so, is the degree of WPI according to Table 5.1 of the Comcare Guide 10% or greater so that her she is entitled to claim compensation pursuant to s 24 or s 27 of the Act?
MRS GRAVES’ ORAL EVIDENCE
30. Mrs Graves stated that she was employed by the ATO and that her job involved assisting clients with their Business Activity Statements. She claimed that, on 6 April 2004 at about 3.00 pm while working at the ATO call centre at Parramatta, she experienced an acoustic incident in the form of “a loud acoustic shock” which was repeated a couple of seconds later. Although she took some time out she continued to work to the end of her shift at 5.00 pm but said that she felt nauseous, giddy and noticed ringing in her right ear.
31. Mrs Graves commented that, although she has trouble with her memory, she did remember having an audiogram some days later. She also claimed to have suffered continuing earache and tinnitus and had to “beg and plead” for the audiogram to be done, despite the ATO protocol which stated that it should have been done within 24 hours of the incident.
32. After the first audiogram Mrs Graves remembered being sent to see Dr Raj, Ear Nose and Throat (ENT) specialist, who didn’t retest her hearing but commented that the tinnitus should resolve in about 6 months. However, she claimed that the tinnitus in the right ear has persisted and although it varies in intensity from time to time it was always present during waking hours. The tinnitus is disturbing when she is trying to go to sleep and if she woke up she has trouble going back to sleep. The giddiness she had suffered had subsided over time and now occurs only occasionally. She also complained of occasional unsteadiness with a tendency to fall to the right.
33. After the acoustic incident Mrs Graves continued to do her usual duties until the end of May 2004 when a repeat audiogram was found to be abnormal and did not meet ATO standards. She claimed that she did not get much help from management and was asked to change signs on toilets, do photocopying and file things in alphabetical order.
34. Mrs Graves conceded that she had provided herself with some duties and that her employer did engage a rehabilitation service to assist with the allocation of alternative meaningful work. However, one of the tasks she was allocated involved putting pieces of paper in an envelope which she found “a bit dehumanising” as she had previously worked at a very high level.
35. In July 2004, in order to assist with her tinnitus, she started seeing Mr Rees, clinical psychologist, who has continued to see her on a regular basis.
36. On 13 August 2004 Mrs Graves was told by her supervisor to cease some work she had been doing to help some of the other staff and was instructed to send an email notifying them that she was no longer permitted to do this. Mrs Graves said that this incident had made her feel belittled and dehumanised and caused her to start drinking alcohol heavily as a form of self medication.
37. In September 2004 Mrs Graves was referred to Dr Baker for psychiatric treatment and was diagnosed as suffering depression. She was started on medication but continued to binge drink.
38. Mrs Graves stated that she had rarely drunk alcohol prior to August 2004, but admitted that she had became an alcoholic and continued to drink heavily until September 2007 when, following a consultation with Dr Smith, she had felt so ashamed that she decided to stop. She stated that she had not consumed any alcohol since that time, but added that since stopping she had not noticed any change in her emotional wellbeing.
39. Mrs Graves described her current medications which included two antidepressant agents, one antipsychotic agent, one anti-anxiety agent and two agents used for drug dependency. She indicated that her medications are managed by Dr Baker, her treating psychiatrist, who she sees every two weeks. She also sees her treating psychologist, Mr Rees, every three weeks and attends a drug and alcohol day group at Northside West Clinic weekly as well as three AA groups per week.
40. Mrs Graves stated that she owned a car but only drove within a 5 km radius as she would get nervous when driving in unfamiliar territory.
41. Mrs Graves agreed that in her earlier life she had three marriages and that her first two husbands were violent. During her first marriage she had a child who was given up for adoption and she had two children from her second marriage who still keep in regular contact and provided her with some support.
42. Mrs Graves conceded that she had heard about tinnitus retraining therapy and would consider it but did not believe that it would help her.
MEDICAL EVIDENCE CONCERNING “ACOUSTIC NERVE INJURY”
Dr Raj
43. In a very brief letter dated 20 April 2004 Dr Raj, Ear Nose and Throat Surgeon, noted that on 6 April 2004 Mrs Graves experienced a “very sharp loud noise” on her earpiece which caused her to suffer significant pain, nausea and vomiting that lasted for about 45 minutes and that subsequently she experienced intermittent discomfort in the right ear with occasional nausea but made no mention of tinnitus.
44. Dr Raj noted that an audiogram on 19 April 2004 showed readings “between 25 and 30dB on the right and 15 and 20dB in the left. At 4000Hz it was equal at 25.” Clinical examination was normal and he concluded that the noise had upset Mrs Graves and “even caused her temporary threshold shift” but that she should not have any long term problems.
45. I note that the audiogram report dated 19 April 2004 in fact indicated air conduction hearing loss of 25dB to 30dB on the right and 15dB to 30dB on the left with the loss in both ears being the same in half of the tested frequencies.
46. An audiogram report dated 28 May 2004 indicated air conduction hearing loss of 25dB to 45dB of the left and 30dB to 50dB on the right. At 4000Hz the loss in the right ear was 50dB and 45dB in the left. On this occasion the loss in both ears was again the same in half of the tested frequencies but at different frequencies compared with the previous test. The report stated that the audiometric testing did not meet ATO standards.
47. An audiogram dated 30 May 2004, which included bone conduction testing, showed a similar result to the earlier audiograms apart from an apparent threshold shift at 4000Hz with a measured loss of 40dB in the left ear and 60dB in the right ear. Bone conduction testing, however, showed no difference between the two ears at 4000Hz.
Dr Hunter
48. In a brief note dated 24 June 2004 Dr Hunter, ENT surgeon, expressed the opinion that the pain Mrs Graves was suffering in her right ear was temporomandibular joint (TMJ) pain and that her tinnitus may be related to overclosure of the TMJ with distortion of the tympanic membrane but otherwise was stress related.
49. He considered that she had mild genetic or congenital type sensori-neural hearing loss on audiogram and that her hearing loss was unrelated to the “acoustic shock”.
50. The next audiogram dated 1 July 2004 showed equal bilateral hearing loss with a significant threshold shift at 6000Hz.
Dr Scoppa
51. In a medico-legal report dated 24 May 2005 Dr Scoppa, ENT surgeon, noted that Mrs Graves had suffered an episode of “acoustic trauma” on 6 April 2004 which consisted of two loud screeches a few seconds apart with each lasting about four seconds. Immediate symptoms included nausea, dizziness and disorientation and subsequent symptoms included continuing disequilibrium, a feeling of blockage in the right ear and a ringing noise in the right ear.
52. Dr Scoppa noted that although Mrs Graves complained of persistent right sided ear symptoms her main problem was “constant and severe and distressing tinnitus” that interfered with activities of daily living such as sleep and concentration. She also complained of fluctuating disequilibrium with intermittent dizziness and loss of balance on most days. Physical examination revealed no relevant abnormalities.
53. An audiogram that included air and bone conduction was reported by Dr Scoppa as showing bilateral sensori-neural hearing loss that was worse in the right ear. He expressed the opinion that the hearing loss was “probably related in part to the accident” as the loss of hearing in the left ear was unrelated to the accident. The audiogram was in fact very similar to the audiogram done on 30 May 2004 and also showed an apparent threshold shift at 4000Hz.
54. Dr Scoppa expressed the opinion that as the onset of the tinnitus occurred soon after the incident at work Mrs Graves had suffered from post-traumatic tinnitus that would probably be permanent as there is no reliable medical or surgical cure.
55. He recommended that Mrs Graves undergo Tinnitus Retraining Therapy which often helps tinnitus sufferers to cope but does not have any effect on the tinnitus itself.
56. On the issue of her continuing disequilibrium Dr Scoppa indicated that this symptom commonly resolved over time, but as 12 months had elapsed with no apparent improvement he considered that Mrs Graves may suffer this problem permanently. He did recommend electonystagmograpy (ENG) and caloric testing to evaluate the function of the balance organ of her inner ear.
57. Dr Scoppa also commented that Mrs Graves complained of intolerance to noise (hyperacusis), a symptom commonly associated with severe post–traumatic tinnitus.
58. In a supplementary report dated 29 May 2006 Dr Scoppa commented on the results of an ENG test done on the same day. He noted that the test was “within normal limits” and that there was normal vestibular function, but added that this did not totally exclude the possibility of injury to the organ of balance in the inner ear.
59. I note, however, that the report itself stated that the results fell “well within the limits and normative data of normal vestibular function” and that the method of testing applies an objective technique to identify the function of the balance system with the patient’s input to the findings being limited.
60. Dr Scoppa assessed Mrs Graves as having a combined WPI of 26% comprising hearing loss 1%, tinnitus 5%, dizziness 10% and hyperacusis 10%.
61. In his oral evidence Dr Scoppa corrected his WPI to 16% as he had incorrectly rated hyperacusis separately. He indicated that the correct assessment should have been 5% for tinnitus and hyperacusis together under Table 7.2.
62. Dr Scoppa indicated that his assessment of 10% for dizziness was based on Mrs Graves’ history combined with his clinical experience. I note, however, that this conclusion was obviously based on Mrs Graves reporting to him that she suffered this symptom on most days whereas in her oral evidence she stated that the symptom occurred only occasionally.
63. Dr Scoppa explained that the term “acoustic shock” is a condition which appears to be confined to people working in call centres who complain of “incredible symptoms” despite the hearing test being almost always normal. He described acoustic shock as a startle reaction which causes immediate muscle spasm in the middle ear, the jaw and neck and causes tinnitus but no hearing loss. He distinguished this condition from acoustic trauma in which a sudden extremely loud noise can cause acute hearing loss.
64. In addressing the variation in Mrs Graves’ audiograms Dr Scoppa explained that hearing testing can be difficult in patients who have severe tinnitus because they often have difficulty distinguishing the hearing test tone and their own tinnitus.
65. During cross-examination, when asked by the Tribunal to comment on the consecutive audiograms that had been performed, Dr Scoppa said that they “started off with a bilateral symmetrical loss then the bilateral loss got a bit worse but still bilateral and symmetrical. Then the right ear dropped a bit, then the right ear dropped a bit still, then the right ear dropped a bit. Then it was back to normal again and bilateral.”
66. Dr Scoppa conceded that the variable hearing loss in the right ear could have been technically affected by more significant tinnitus at the time of testing. He also commented that tinnitus is a subjective symptom that cannot be measured and that unilateral tinnitus usually suggests that there has been an injury to the ear with or without any demonstrated hearing loss.
67. Dr Scoppa explained that hyperacusis is a distortion of the perception of noise and has nothing to do with intensity. The symptom is generally intermittent and can depend on levels of stress and other various physical and psychological factors. I note that Mrs Graves’ oral evidence on this point was somewhat vague and did not support a conclusion that she in fact suffered from any significant hyperacusis.
Dr John Walker
68. In a medico-legal report dated 6 March 2006 Dr John Walker, ENT surgeon, noted that in April 2004 following two incidents, a few minutes apart, of high pitched noise in her right ear headset Mrs Graves experienced a number of symptoms. These symptoms included a feeling of fullness and reduced hearing in the right ear, right sided tinnitus, and dizziness and nausea. Mrs Graves thought that the hearing in her right ear had deteriorated, and claimed that the right sided tinnitus had been constantly present since the incident. The giddiness had subsided and was limited to some momentary attacks. She also complained of unsteadiness with a tendency to fall to the right.
69. Dr Walker noted that Mrs Graves took various psychotropic and other medications, was drinking an average of two litres of wine per day and that she amplified the television in spite of a complaint of hyperacusis.
70. Dr Walker reported a pure tone audiogram dated 23 February 2006 as showing slight sensorineural hearing loss of equal degree in both ears. In fact the hearing loss was identical at all frequencies except 4000Hz where the loss of 40dB in the left ear was greater than the 35dB loss in the right ear.
71. Dr Walker assessed the combined WPI according to Tables 7.1, 7.2 and 13.1 of the Guide as 5% with respect to symptomatic tinnitus alone (Table 7.2). He assessed 0% for binaural hearing loss (Tables 7.1 and 7.2), 0% for hyperacusis and 0% for vertigo (Table 13.1). He also commented that Mrs Graves’ symptoms may be reduced by tinnitus retraining therapy but that the results of this form of treatment are difficult to predict.
72. In his oral evidence Dr Walker explained that the natural history of tinnitus is variable but that following a single incident it usually gets better. However, it did depend on the particular patient because the symptom is partly related to the brain as well as the ear. If the tinnitus gets worse it is usually as a result of non ear factors such as general health.
73. On the issue of hyperacusis Dr Walker commented that, in his opinion, this symptom usually reflected a psychological problem and was not really an ear related condition.
74. On the issue of problems with balance or giddiness Dr Walker commented that momentary giddiness was a common complaint and not always associated with a defined medical condition. He added that it is common after an acoustic incident but usually does not persist for more than a few weeks.
MEDICAL EVIDENCE CONCERNING “MAJOR DEPRESSIVE DISORDER”
Reports of Mr Rees
75. Mrs Graves was referred to Mr Rees, clinical psychologist, by the audiologist who performed her audiogram on 1 July 2004. The audiologist reported bilateral hearing loss worse on the right side in the higher frequencies associated with constant right sided tinnitus.
76. In a letter dated 7 July 2004 Mr Rees noted that Mrs Graves complained of buzzing in her ear, earache and was experiencing difficulties getting to sleep. He also noted that she was also extremely fearful of putting the headset back on and admitted to a reduction in self confidence since the “acoustic shock” incident earlier in April 2004.
77. Mr Rees concluded that Mrs Graves’ symptoms were consistent with an acute stress of a psychological nature and commented that she appeared to be genuine and not exaggerating. He also commented that he was unable to find any other stressors in her life contributing to the symptoms.
78. Although Mrs Graves wanted to return to work Mr Rees considered that she was not fit to return to work and recommended a remedial program with a gradual return to work.
79. I note that Mr Rees continues to be Mrs Graves’ treating psychologist and has been seeing her on a regular basis, currently every three weeks.
Reports of Dr Baker
80. On 8 September 2004 Mrs Graves was seen by Dr Baker, consultant psychiatrist, after having been referred by her general practitioner, Dr Cheam.
81. In his clinical notes Dr Baker recorded that Mrs Graves had become agitated and depressed following an acoustic incident on “3 April 2004” and complained that protocols were not followed and that she had to instigate everything.
82. Dr Baker noted that she had lost weight because of reduced appetite, had difficulty with sleeping, was having suicidal thoughts and also complained of worsening tinnitus.
83. Dr Baker noted her complex marital history and difficult childhood. He also noted that normally she did not drink, but that since April 2004 her drinking had increased and was up to four litres of wine per week.
84. Dr Baker diagnosed major depression with suicidal thoughts and alcohol dependence. He prescribed psychotopic medication and recommended motivational counselling.
85. On a follow up visit on 20 September 2004 Dr Baker noted that Mrs Graves was more settled with decreased agitation and that she had stopped drinking.
86. I note that Dr Baker is Mrs Graves’ treating psychiatrist and continues to see her on a regular basis, currently every two weeks.
87. In a report to Comcare dated 8 December 2004 Dr Baker stated that, following the incident at work in April 2004, Mrs Graves became agitated and depressed and that she had informed him she had instigated her own treatment because she had perceived little support from her superiors. Dr Baker noted that she had also developed severe tinnitus which interfered with her sleep and which has resulted in various symptoms including suicidal thoughts. He indicated that he had diagnosed major depression with suicidal thoughts and expressed the opinion that her tinnitus and depression are a direct complication of her accepted condition of “injury to acoustic nerve”. He also stated that it is known that tinnitus can be associated with an increased risk of completed suicide due to co-morbid depression.
88. Dr Baker concluded that Mrs Graves had suffered a severe psychiatric illness that would require pharmacotherapy and an extended period of psychological rehabilitation, but added that with severe depression associated with tinnitus she had a poor prognosis. He also expressed the opinion that there were no underlying or pre-existing conditions but made no mention of any problem with alcohol. In his oral evidence he conceded that this had been an error.
89. In a letter dated 15 June 2005 Dr Baker stated that Mrs Graves had suffered an acute deterioration in her mood in association with increasing alcohol consumption and that she had been unresponsive to previous medications. He also commented that her tinnitus had become worse and recommended urgent admission to hospital to withdraw from alcohol and re-establish effective antidepressant therapy.
Dr Kipling Walker
90. In a report dated 14 October 2005 Dr Kipling Walker, consultant psychiatrist, diagnosed polysubstance abuse, major depressive disorder or dysthymic disorder, anxiety disorder personality disorder, and possible somataform disorder. His diagnoses were based on the history provided by Mrs Graves and a review of numerous documents including correspondence from Mr Rees and the ATO.
91. In his report Dr K Walker noted Mrs Graves’ difficult past personal history, as well as the circumstances surrounding the acoustic incident in April 2004 and commented that she started drinking alcohol following an incident with her supervisor in August 2004. He noted that Mrs Graves blamed the ATO for her current psychological condition and perceived that she had been mistreated.
92. Dr K Walker considered that Mrs Graves had a personality disorder on the basis of “a longstanding pattern of behaviour and emotions that was out of keeping with social norms” but did not explain the nature or context of the pattern of abnormal behaviour.
93. Finally Dr K Walker concluded that Mrs Graves’ prognosis was poor and that she was unlikely to ever become capable of returning to work or participate in a rehabilitation program.
Dr Phillips
94. Dr Phillips, consultant psychiatrist, saw Mrs Graves on two occasions in early September 2005 and in a report dated 19 October 2005 he noted that Mrs Graves had felt bullied and harassed by ATO officials and that she began to drink heavily in a binge manner from mid August 2004 because she felt belittled and dehumanised. Relevantly he added that at the time of his assessment she was not currently drinking. He also noted Mrs Graves’ past difficulties in relation to her family and her unsuccessful marriages and later added that although there was no history of any substantial psychological problems prior to the acoustic incident she was vulnerable to the onset of a psychological disorder.
95. Dr Phillips diagnosed adjustment disorder unspecified type, under the DSM-IV, which had become chronic, and was complicated by episodic atypical psychotic symptoms and various physical symptoms. He noted that she had suffered a sentinel psychological trauma at the time of the acoustic incident, which led to a period of psychological decompensation. Subsequently she suffered further psychological trauma which included perceived bullying and harassment in the workplace and failed to recover despite counselling and the use of various psychotropic agents. Dr Phillips observed that, at the time of consultation, Mrs Graves had ongoing symptoms including depressed feelings, a disinclination to be with other people, a general sense of fear, episodic severe anxiety attacks (including hyperventilation, dizziness, excessive perspiration) among others.
96. Finally, Dr Phillips expressed the opinion that Mrs Graves’ employment had triggered, and materially contributed to, her now chronic psychological condition and that her prognosis was relatively poor. He assessed her impairment according to the Comcare Guide at 25% WPI.
Dr Boland
97. In a medico-legal report, prepared at Comcare’s request, dated 27 February 2006 Dr Boland, consultant psychiatrist, stated that Mrs Graves had developed a Chronic Adjustment Disorder secondary to her acoustic trauma in April 2004. He added that her clinical picture had become complicated by her history of alcohol abuse and based on her clinical presentation at interview and current symptoms her chronic adjustment disorder had now become established as a Major Depressive Disorder.
98. Dr Boland’s final diagnosis according to the DSM-IV was Major Depressive Disorder and Alcohol Dependence with a 10% level of impairment according to Table 5.1 of the Comcare Guide.
99. Dr Boland expressed the opinion that the depression and alcohol abuse were secondary to the acoustic trauma suffered in April 2004 and that her percentage WPI arose solely from work related factors and that he did not expect her impairment to be reduced by further medical or rehabilitative treatment. He added that, in his opinion, Mrs Graves was totally incapacitated for work as a result of her mood disorder and alcohol dependence.
100. Dr Boland also noted that Mrs Graves did not describe anything at interview to suggest that she suffered from an underlying personality disorder prior to her injury in April 2004 and, in his opinion, the traumas she suffered in her early family life were not relevant to her work related psychiatric condition.
March – April 2006
101. In a follow up report dated 20 March 2006, Dr K Walker confirmed his previous diagnoses and noted that Mrs Graves continued to have significant symptoms of depression and anxiety. He noted that her symptoms persisted despite reasonable and necessary psychiatric and psychological treatment and that she was dependent on alcohol and sedatives. He concluded that Mrs Graves’ prognosis was poor, that she was not capable of participating in a rehabilitation program, that she was totally and permanently unfit for paid employment and supported medical retirement.
102. In a letter to Comcare dated 3 April 2006 Dr Baker recommended readmission to hospital on the basis of deteriorating mood disorder and increasing alcohol consumption.
103. In a letter to Comcare dated 10 April 2006 Mr Rees noted that he had been seeing Mrs Graves on a regular basis and had become aware of her increased stress due to being required to undergo psychiatric evaluations over the previous months. He added that Mrs Graves had broken her sobriety following the psychiatric assessment in September 2005 and has been struggling to decrease her alcohol consumption since. He also recommended readmission to hospital under the care of Dr Baker as her continuing use of alcohol was likely to be interfering with the effectiveness of her psychotropic medications.
104. In September 2006 Mrs Graves was medically retired.
Dr Smith
105. In a medico-legal report prepared for Comcare dated 27 September 2006 Dr Selwyn Smith, consultant psychiatrist, diagnosed Major Depressive Disorder and Alcohol Dependence according to DSM-IV on the basis of his clinical examination.
106. Dr Smith noted that from the history provided by Mrs Graves she did not have a pre-existent alcohol dependent disorder but that she probably had a vulnerability towards the development of a psychiatric disorder on the basis of her family history and past experiences. He noted that, despite this vulnerability, Mrs Graves had coped well but that she had decompensated in response to her work circumstances. Furthermore, he stated that, in his opinion, her current condition was not due to a pre-existing or underlying condition and that there was a direct relationship between Mrs Graves’ condition and her employment. He stated there were no other factors causing incapacity for work, other than her psychiatric presentation.
107. Dr Smith considered that Mrs Graves’ psychiatric disorder had not been stabilised and that any evaluation of permanent psychiatric impairment would be compromised because her excessive alcohol intake was interfering with the effectiveness of her psychotopic medication. Dr Smith considered that, if Mrs Graves ceased her alcohol consumption, her psychiatric condition would improve.
Dr Baker
108. In a report to Comcare dated 30 October 2006 Dr Baker summarised Mrs Graves’ history, and confirmed the diagnosis of Major Depression with Suicidal Thoughts and Alcohol Dependence of the binge drinking type and outlined her subsequent treatment that included psychotropic medication and counselling.
109. Dr Baker noted that the onset of Mrs Graves’ depression followed the April 2004 incident, as did her drinking. Subsequently her alcohol consumption increased in response to sleeping difficulties and as her tinnitus deteriorated her depression and alcohol consumption continued to increase further.
110. Dr Baker stated that, in his opinion, there were no pre-existing or underlying conditions contributing to Mrs Graves’ current diagnoses and that they were linked to the injury she suffered in April 2004. He also stated that the major depression had become a recurrent condition and the alcohol dependence a relapsing condition and that, although both conditions may improve from time to time, there will always be the risk or relapse. He also restated his opinion that with major depression combined with tinnitus there is a higher incidence of completed suicide and a poorer prognosis and indicated that Mrs Graves is likely to require ongoing psychological treatment for at least two years and pharmacotherapy for at least five years.
Further reports of Dr Smith
111. In a letter to Comcare dated 20 November 2006, after having reviewed Dr Baker’s report, Dr Smith noted that the history obtained by Dr Baker was similar to his own apart from a greater alcohol consumption reported to him. He also noted that Dr Baker’s diagnosis was similar to his own and that the only major difference was with respect to the approach to treatment.
112. Dr Smith affirmed the opinions he had expressed in his earlier report and agreed that Mrs Graves was unable to work because of the persistence of her major depressive episode associated with chronic alcohol dependence.
113. In a report dated 24 September 2007 Dr Smith changed his opinion and diagnosed Chronic Alcohol Dependence, with probable Substance-induced Mood Disorder, on the basis of an extensive history of alcohol utilisation. He stated that symptoms of severe depression are common in the context of heavy and repetitive alcohol intake and often resemble a major depressive disorder. He added that, in his clinical experience, when individuals cease their alcohol intake, their mood state significantly improves with or without antidepressant medication and that following abstinence for several weeks most alcoholic patients are no longer depressed apart from mild symptoms. He wrote that it could not be ascertained with certainty that Mrs Graves has a Major Depressive Episode.
114. Dr Smith speculated that Mrs Graves’ symptoms of anxiety were due to alcohol and that her psychotic symptoms would probably clear spontaneously in the absence of alcohol.
115. He was of the opinion that Mrs Graves’ diagnosis was clouded by alcohol but, although he was now of the opinion that alcohol dependence and its sequelae was the predominant clinical presentation, he conceded the possibility of an underlying major depressive episode. He concluded that Mrs Graves’ employment could no longer be considered a contributing factor to her current psychological condition, as she should have improved following her medical retirement and the abatement of any prior stressors.
116. Dr Smith considered that Mrs Graves was destined to experience a psychiatric disorder irrespective of her adverse work experiences on the basis of her difficult childhood and marital history.
117. He conceded, however, that her employment had been a distressing event and probably had contributed to an adjustment disorder. He suggested that the fact that her symptoms persisted, particularly the alcohol dependence, indicated other responsible factors such as her personality and past social history, but did concede the possibility of co-morbidity or dual diagnosis.
118. On the issue of WPI, Dr Smith was of the opinion that Mrs Graves demonstrated 15% impairment but that this impairment was predominantly related to her excess alcohol consumption.
119. Dr Smith’s concluding opinion, on 24 September 2007, was that Mrs Graves’ employment was no longer a contributing factor to her current psychological condition. He noted that improvement would be expected now that Mrs Graves had been medically retired. He also noted the generally mild nature of her hearing loss, and was of the opinion that it was not substantially contributing to her current psychiatric condition. I note that Comcare placed significant reliance on Dr Smith’s report in determining that Mrs Graves no longer suffered the effects of her compensable psychological injury.
Further reports of Dr Baker
120. In a report dated 13 November 2007 Dr Baker confirmed that he was Mrs Graves’ treating psychiatrist and continued to see her as an outpatient and that she had also been admitted to hospital on three occasions under his care.
121. He noted that the issue of co-morbid mental illness was complex especially when there is substance misuse combined with a major mental illness as suffered by Mrs Graves.
122. In response to the Dr Smith’s report of 27 September 2007 Dr Baker commented that, in formulating his opinion, it appeared that Dr Smith only considered Mrs Graves’ clinical presentation on the day of examination and neglected to acknowledge that Mrs Graves had reported abnormal mood prior to the commencement of her excessive drinking.
123. Dr Baker acknowledged that Mrs Graves’ childhood experiences increased her risk of developing major mental illness, but noted that her clinical presentation with depression followed the incident at work which led to her suffering from tinnitus. He added that tinnitus is a condition which may be exacerbated by major depressive episodes and is associated with an increased risk of completed suicide. He also noted that Mrs Graves had not suffered from major depressive episodes or alcohol dependence prior to her presentation in 2004.
124. Dr Baker quoted data from the medical literature demonstrating that co-morbid Major Depressive Disorder and Alcohol Dependence is well recognised in the general population and that they are not considered to be independent conditions when they occur co-morbidly in a single individual. He added that it was known that women suffer more from a primary diagnosis of depression with secondary alcoholism, whereas males tend to higher rates of primary alcohol dependence and secondary depression.
125. Dr Baker stated that, in his opinion, Mrs Graves’ employment continued to be a significant contributing factor and described his preferred formulation. Mrs Graves first developed mood disturbance in the context of major depressive disorder because of her inability to cope with a pathological work environment and this subsequently led to the development of alcohol dependence. He agreed that she may improve if she stopped drinking although the amount of improvement was unpredictable and from his clinical experience he strongly believed that Mrs Graves was unlikely to return to her pre-injury state.
126. On the issue of assessment of WPI Dr Baker agreed with Dr Smith’s assessment of 15%, but added that he saw Mrs Graves’ prognosis as poor and predicted that she would require ongoing medical and psychological treatment.
Further reports of Dr Smith
127. At the request of the Australian Government Solicitor, Dr Smith reviewed Mrs Graves again and, in a report dated 17 March 2008, he noted that she had provided a history of abstinence from alcohol since September 2007, but that she had deteriorated in her physical appearance and emotionally, and had become increasingly depressed and anxious.
128. Dr Smith again altered his diagnosis. Dr Smith concluded that that Mrs Graves continued to demonstrate diagnostic criteria for an Adjustment Disorder in response to her work related circumstances and commented “that I would have anticipated would have resolved.”
129. Dr Smith further noted that Mrs Graves experienced chronic alcohol dependence that was currently in remission, but that her prognosis in regard to alcohol abstinence should be viewed with caution on the basis of her longstanding history of alcohol abuse and history of relapse.
130. He reiterated the role that alcohol had played in her presentation. Dr Smith then expressed the opinion that Mrs Graves was also displaying symptoms of Major Depressive Disorder and that it was difficult to exclude the impact of alcohol with regard to her clinical presentation. Given her presentation, he conceded that it was difficult to categorically distinguish between a Major Depressive Episode and an Alcohol Mood Disorder.
131. He also expressed the opinion that her employment had not been a substantial contributor to her psychiatric condition and, although her acoustic injury may have contributed to her psychiatric disorder, it was not a substantial contributor.
132. Dr Smith confirmed his assessment of 15% WPI according to Table 5.1 of the Comcare Guide and commented that, in his opinion, Mrs Graves is not fit for work.
Further reports and oral evidence of Mr Rees and Dr Baker
133. In a report dated 30 March 2008 Mr Rees provided a brief historical summary of his contact with Mrs Graves and made several relevant observations.
134. He indicated that the results of tests for emotional functioning, that he had recently administered, were consistent with the presence of depression, low self esteem and anxiety and that Mrs Graves continued to require a range of psychotropic medications prescribed by Dr Baker.
135. He also noted that Mrs Graves’ symptoms of depression predated her alcohol dependency and that, despite consuming no alcohol for at least six months, since 23 September 2007, she remained severely depressed with no improvement in either her tinnitus or her anxiety.
136. Mr Rees added that there was no history of psychiatric symptoms or alcohol abuse prior to 2004 and that, despite a difficult childhood, Mrs Graves had managed to raise two children without maintenance from their father, deal with several unsatisfactory marriages, maintain employment and manage her finances.
137. Mr Rees also expressed the opinion that an unsatisfactory rehabilitation process and poor management of the initial trauma in the workplace led to a decompensation of her psychological and emotional resources. This decompensation resulted in symptoms of anxiety and depression with alcohol abuse arising out of her attempts to cope with her symptoms, particularly the persistent tinnitus.
138. Mr Rees concluded that Mrs Graves had reacted to events in her workplace and disagreed strongly with Dr K Walker’s opinion that Mrs Graves suffered from a personality disorder with a longstanding pattern of abnormal behaviour.
139. In a brief letter dated 8 August 2008, Mr Rees confirmed that Mrs Graves continued to experience her symptoms at the same level, despite remaining abstinent from alcohol for almost 12 months. In particular she continued to experience tinnitus in her right ear at a subjective severity rating of 7/10 to 8/10.
140. In oral evidence Dr Baker confirmed that his understanding of the history was that Mrs Graves developed depression and then started drinking more and added that alcohol abuse is a common complicating factor of major depression.
141. On the issue of tinnitus Dr Baker noted that tinnitus affects Mrs Graves’ mood and as her mood gets worse the tinnitus will get worse thus creating a form of negative feedback.
142. Dr Baker described Ms Graves’ current status as major depression in partial remission and alcohol dependence in full remission but added that she remained unfit for work in any capacity.
143. In oral evidence Mr Rees confirmed his opinion that Mrs Graves’ persistent tinnitus was a major contributor to her depression and that her subsequent difficulties at work compounded the situation. He also confirmed that, despite questioning her closely, he was unable to find any evidence of a pre-existing psychiatric condition or personality disorder and found Mrs Graves to be an honest and straightforward person.
144. Mr Rees agreed the alcohol abuse was in remission but that Mrs Graves continued to suffer severe depression and that this has significantly reduced her functioning. He estimated her impairment under Table 5.1 as somewhere between 20% to 25%.
145. In response to a question from the Tribunal, Mr Rees expressed the opinion that the onset of Mrs Graves’ depression started a few months before her florid presentation in September 2004 and that she had started to use alcohol as a means of coping with her low mood and anxiety.
Oral evidence of Dr Smith
146. In his oral evidence Dr Smith confirmed that recently he had formed the view that Mrs Graves’ condition was not attributable to her workplace but rather due to her troubled background history, particularly her difficult childhood experiences and failed marriages. Nevertheless he conceded that, despite her past history, Mrs Graves had coped well and had emotionally decompensated when her working conditions were modified.
147. Dr Smith expressed the opinion that, on the balance of probability, Mrs Graves would have developed the conditions she now suffers irrespective of the acoustic incident and, although her work played a role, it did not cause, in total, her current clinical picture. He added, however, that the loss of her job was highly significant and had contributed to her “unhappy state”.
148. Dr Smith referred to Mrs Graves’ perceptions of how things were managed in the workplace and stated that in order to consider whether work had substantially contributed to her psychiatric problems it would be necessary to consider whether her employers had in fact behaved fairly and offered her reasonable work.
149. In cross-examination Dr Smith conceded that, despite having speculated that, in view of her past personal experiences, Mrs Graves may have had psychiatric symptoms or alcohol abuse prior to 2004, he was unable to point to any evidence to support such a proposition. He also conceded he had never questioned her credibility or found any inconsistencies in her presentation of symptoms to him or in the documents reviewed by him.
150. Dr Smith also conceded that, when he saw Mrs Graves for the first time in September 2006, he reported that she exhibited the diagnostic criteria for major depressive episode and alcohol dependence and that she had been exposed to a number of work related conflicts that appeared to have caused her emotional decompensation resulting in a downward spiral to major depression.
151. Dr Smith tried to explain that he changed his opinion because he found it difficult to understand why once Mrs Graves had been removed from the stressors at work, despite extensive treatment, she had not improved. He then added that the fact that she had not improved strongly suggested that other factors other than her “acoustic shock” were perpetuating her psychiatric disorder.
152. Dr Smith expressed the opinion that the removal of stressors that may have contributed to the onset of a major depressive disorder should result in the depression getting better. On reflection, I found this a somewhat novel opinion when considered against the background of the facts in this case and the remainder of the medical opinion.
153. When questioned further by counsel for the applicant on the relevance of the persisting tinnitus, Dr Smith agreed that tinnitus was a distressing factor, but did not cause Mrs Graves to develop depression.
CONSIDERATION
Acoustic incident at work that resulted in an injury to right ear
154. It is not disputed that, following an incident at work on 6 April 2004, Mrs Graves suffered an injury to her right ear that was variously described with such terms as “acoustic nerve (right)”, “acoustic shock” and “acoustic injury”. During the course of the hearing, it became clear that these terms were being used interchangeably without due regard to their precise technical meaning. In the interests of consistency I consider it preferable to describe the sentinel event as an acoustic incident at work that resulted in an injury to the right ear.
155. The injury to the right ear resulted in various symptoms, both temporary and persistent. For our purposes the relevant symptoms are the claimed persistent symptoms of hearing loss, right sided tinnitus and dizziness or, alternatively, giddiness.
156. Over a two year period Mrs Graves had her hearing formally tested on at least seven occasions with varying results. The issue was clouded by the fact that the first audiogram revealed previously undiagnosed mild bilateral sensori-neural hearing loss of uncertain origin, but clearly not related to her work. Subsequent audiograms demonstrated equal hearing loss at most frequencies in both ears with some increased (threshold shifts) but variable loss at some frequencies in the right ear.
157. Whether these so called threshold shifts were related to the incident or technical errors was uncertain. However, the final audiogram done in February 2006 revealed a minor bilateral hearing loss equal in both ears. Therefore, even if I were to accept that Mrs Graves did suffer hearing loss as a result of the incident at work, on the evidence I can only conclude that it was temporary and had resolved by February 2006.
Tinnitus
158. The issue of tinnitus is more complex as it is a subjective symptom that cannot be objectively measured. The evidence was that tinnitus is related not only to the ear but also the brain and can be influenced by a person’s general health, particularly by psychological or psychiatric conditions. There appears to be no effective medical or surgical treatment for tinnitus per se, and in general treatment is directed at trying to mask the effect of the tinnitus as well as treating any co-morbid conditions.
159. Mrs Graves’ evidence was that the tinnitus has persisted and continues to cause her significant distress and there is no evidence before me to dispute her claim.
160. Therefore I find that Mrs Graves continues to suffer from the effects of the work related injury in the form of permanent tinnitus in the right ear.
161. Mrs Graves’ evidence on the issue of giddiness was that it had subsided and now only occurred occasionally. Coupled with Mrs Graves’ history of significant alcohol consumption and her own evidence I conclude that giddiness or dizziness can no longer be considered an effect of her work related injury to her right ear.
162. On the issue of WPI, I note that Drs Scoppa and (John) Walker agreed that Mrs Graves suffered WPI of 5% according to Table 7.2 of the Comcare Guide on the basis of symptomatic tinnitus. They disagreed on the issues of hearing loss and dizziness, with Dr Walker assigning an impairment rating of 0% for both. Dr Scoppa saw Mrs Graves eight months earlier and relied on her reported history of daily dizziness and an audiogram on the day of consultation showing a greater loss of hearing in the right ear at 4000Hz.
163. As Mrs Graves’ evidence at the hearing concerning giddiness was consistent with the history obtained by Dr Walker and the result of the audiogram in February 2006 indicated no hearing loss in the right ear that could be attributed to her work I prefer the assessment of Dr Walker.
164. Therefore I conclude that Mrs Graves suffers permanent tinnitus in her right ear as a result of her work related injury and suffers WPI of 5% according to Table 7.2 of the Comcare Guide.
Psychiatric Condition
165. It is clear from the evidence that subsequent to the incident at work in April 2004 Mrs Graves suffered from a severe psychiatric condition that has resulted in significant continuing impairment and a permanent incapacity for work.
166. I am satisfied that, notwithstanding a difficult childhood and a problematic marital history, the evidence is that Mrs Graves was managing her life reasonably well with no psychiatric symptoms or problems with substance abuse until the incident at work on 6 April 2004. Furthermore, there was no evidence that Mrs Graves had any difficulties at work from August 2002, when she started her employment with the ATO, until this incident.
167. In view of the manner in which Comcare had accepted liability for Mrs Graves’ psychiatric condition, as noted above, and the opinions expressed by Dr Smith that had been relied on by the respondent, I consider that it is necessary to review the nature of Mrs Graves’ psychiatric condition and revisit the question as to whether this condition was in fact an “injury” as defined by section 4 of the Act.
168. I am satisfied that the evidence clearly demonstrates that, soon after the acoustic incident, Mrs Graves began to have problems at work which appeared to be based on her perception that management had not responded appropriately to her difficulties related to the injury to her right ear. In particular, there were difficulties with regard to the type of work she had been assigned in the context of her rehabilitation and eventually this led to conflict with her supervisor.
169. Mrs Graves claimed that she had felt “belittled” and “dehumanised” and soon after started to suffer symptoms of anxiety and mood disturbance. In an attempt to relieve her symptoms she started to drink alcohol and over time the amount that she consumed significantly increased.
170. In July 2004 she sought the assistance of a clinical psychologist, Mr Rees, who not only provided treatment but also directly assisted Mrs Graves in her negotiations about her rehabilitation with the ATO.
171. Despite psychological treatment Mrs Graves’ condition continued to deteriorate, so that in September 2004 she was referred to Dr Baker, consultant psychiatrist, who diagnosed major depression with suicidal thoughts as well as alcohol dependence.
172. In his oral evidence Mr Rees stated that he had been directly involved in some of the negotiations with the ATO about Mrs Graves’ rehabilitation and confirmed that in his view there had been certain difficulties and that commitments to deal with some of her issues had not always been implemented.
173. In the ensuing months Mrs Graves’ condition continued to deteriorate until she was admitted to hospital in June 2005 for the first of three admissions.
174. The subsequent course of Mrs Graves’ psychiatric condition could best be described as a severe intrinsic disorder with periods of minor improvement and frequent episodes of deterioration. It was clear from the evidence that at the time of the hearing she still suffered significant symptoms and continued to be treated with various psychotherapeutic medications. It was also clear that she remained totally and permanently unfit for work.
175. The first question that I must now consider is the nature of her psychiatric condition.
176. I am satisfied that the weight of the medical evidence supports a conclusion that, following the acoustic incident, a combination of Mrs Graves’ persisting tinnitus and the difficulties that occurred at work caused her to suffer emotional decompensation which resulted in her suffering from an adjustment disorder that progressed into a florid Major Depressive Disorder.
177. As a consequence of and as part of her attempts at self medication, Mrs Graves became reliant on alcohol so that eventually she was also diagnosed as suffering from alcohol dependence.
178. In my opinion the weight of the medical evidence supports a conclusion that Mrs Graves’ alcohol dependence was secondary and co-morbid with her major depression and not a separate condition.
179. Furthermore, this conclusion is consistent with the determination of Comcare in December 2006, when Mrs Graves’ claim for compensation for alcohol dependence was rejected on the grounds that it had occurred as part of her Major Depressive Disorder and was a symptom of this disorder. A decision which relied, in part, on the earlier opinions expressed by Dr Smith.
180. The only dissenting views were those of Dr K Walker, in part, and Dr Smith in his revised opinions.
181. Dr K Walker saw Mrs Graves on two occasions and provided no less than six diagnoses including major depressive disorder, polysubstance (alcohol) dependence and personality disorder. He concluded that Mrs Graves was totally unfit for work and had a poor prognosis. He based his diagnosis of personality disorder on Mrs Graves’ apparently longstanding pattern of abnormal behaviour, but did not explain the nature or extent of this behaviour apart from some brief references to her actions in response to her problems at work and some of her childhood experiences.
182. In my view Dr K Walker did not provide a satisfactory opinion as to the nature of Mrs Graves’ psychiatric disorder but appeared to assign a number of possible psychiatric labels that could have explained Mrs Graves’ symptoms. Furthermore, the diagnosis of personality disorder was not supported by any other medical opinion and positively rejected by some. Although the substance of Dr K Walker’s opinion was generally consistent with most of the other medical evidence I have accorded less weight to his opinion, and do not accept his diagnosis of personality disorder.
183. When Dr Smith first examined Mrs Graves in September 2006 he reported that, on clinical examination, she presented with symptoms that met the DSM-IV criteria for a diagnosis of Major Depressive Episode and alcohol dependence. He also expressed the opinion that her condition was not due to a pre-existing or underlying condition and that there was a direct relationship between Mrs Graves’ condition and her employment.
184. In a supplementary report in November 2006 Dr Smith confirmed his earlier opinion and agreed that Mrs Graves was unable to work because of her “Major Depressive Episode associated with chronic Alcohol Dependence”.
185. In September 2007 Dr Smith changed his previous diagnosis to Chronic Alcohol Dependence with substance induced Mood Disorder on the basis of Mrs Graves’ history of continuing alcohol consumption. Dr Smith also discounted any continuing effects of Mrs Graves’ employment on the grounds that she probably had suffered a temporary adjustment disorder and that following her retirement the stressors related to her work had been removed and therefore her psychological condition should have improved.
186. In order to explain Mrs Graves’ continuing severe psychiatric condition Dr Smith stated that Mrs Graves was destined to experience a psychiatric disorder on the basis of her childhood and marital history. Dr Smith conceded, however, that he could not exclude an underlying major depressive episode but considered that alcohol dependence was now the predominant clinical presentation and predicted that many of Mrs Graves’ symptoms would abate if she stopped drinking alcohol.
187. Dr Smith again examined Mrs Graves in March 2008 almost six months after she had stopped drinking alcohol and acknowledged in his report that Mrs Graves continued to demonstrate diagnostic criteria of an Adjustment Disorder and also displayed symptoms of Major Depressive Disorder.
188. Dr Smith expressed the opinion that Mrs Graves’ “acoustic injury” may have contributed to her psychiatric disorder, but that the contribution was not substantial. He provided no meaningful explanation to support his opinion.
189. In my view Dr Smith’s report of March 2008 was confused and uncertain and provided a distinct impression that he had difficulty in reconciling his new opinion with the facts as they had evolved.
190. In his oral evidence, Dr Smith explained that he had changed his opinion because he could not understand why Mrs Graves, despite extensive treatment, had not improved once her work stressors had been removed. He concluded that other factors must have been responsible particularly her vulnerability to psychiatric disease as a result of her past personal history.
191. In my view Dr Smith’s revised opinion was inconsistent, not only with his own earlier assessment, but with both the weight of the medical evidence and the facts of the case. His final report and his oral evidence, in my view, did not provide a satisfactory explanation for his revised opinion in the face of facts that did not support his formulation, and I formed the distinct impression that he was trying to justify his revised opinion by trying to fit the facts to the opinion rather than provide an opinion based on the facts.
192. For the above reasons I have placed less weight on the opinions of Dr Smith with respect to diagnosis.
193. Having considered all the other evidence, I find that in 2004 Mrs Graves suffered from a primary Major Depressive Disorder and secondary co-morbid Alcohol Dependence. I also find that currently Mrs Graves continues to suffer from her primary depressive disorder evidenced by the fact that she continues to suffer symptoms of major depression and continues to require both medical and psychological treatment.
194. The next issue to consider is whether Mrs Graves’ Major Depressive Disorder and secondary co-morbid Alcohol Dependence is an injury within the meaning of the Act. That is, whether it can be considered an injury that arose out of, or in the course of, her employment or, alternatively, an ailment that was contributed to in a material degree by her employment, pursuant to section 4 of the Act.
195. Notwithstanding the approach initially taken by Comcare, in my view, Major Depressive Disorder is an ailment that conforms to the definition of a disease in s 4 of the Act. I understood counsel for the respondent to concede this at hearing. The question is therefore whether Mrs Graves’ employment contributed in a material degree to her psychiatric disorder.
196. I am satisfied that the evidence demonstrates that the consequences of the acoustic incident in April 2004, in particular the persisting tinnitus and workplace place difficulties, were significant factors contributing to the onset of her psychiatric disorder.
197. In Comcare v Sahu Khan (2007) 156 FCR 536 at 542 Justice Finn commented that “in a material degree” means “substantially, considerably”. He then said that it requires a threshold evaluation “of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment” and that whether this will be in a given case “will be a matter of fact and degree”.
198. In addressing the threshold question with regard to the issue of material contribution the other relevant factors that I considered included her childhood experiences, her marital history and whether or not the actions of the ATO management were reasonable as raised by Dr Smith.
199. I note that all of the psychiatrists had considered both Mrs Graves’ childhood experiences and her marital history and each placed a different emphasis on the significance of these factors with regard to her depressive disorder. A fair summary of the majority of opinion would be that the factors were obviously significant in her life and although they predisposed her to psychological difficulties she managed very well with no evidence of psychological symptoms until after the incident at work in 2004.
200. Furthermore, the fact that Mrs Graves had experienced events in her previous life that could have predisposed her to psychological injury does not mean that her employment could not have contributed in a material way to her major depressive disorder.
201. Relevantly, von Doussa J stated in Wiegand v Comcare (2002) 72 ALD 795 at 796 that:
If the incident or state of affairs to which the worker was exposed caused incapacity to occur, it is not to the point that, had such exposure not happened, the disease may have caused the employee to become incapacitated at about the same time in whatever other situation or place the worker happened to be.
202. On the issue of the reasonableness, or lack thereof, of ATO management, I also refer to the decision of von Doussa J in Wiegand v Comcare (2002) 72 ALD 795 at 797, where he said at :
there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.
203. There was no evidence to suggest that the difficulties at work following the acoustic incident did not occur, and I am satisfied that there was sufficient evidence to conclude that Mrs Graves experienced significant distress as a result of the way in which her situation had been managed.
204. For the above reasons I find that the state of affairs with regard to the acoustic incident and the subsequent difficulties at work were sufficient to satisfy the threshold of material contribution. Therefore, I find that Mrs Graves’ Major Depressive Disorder and secondary co-morbid Alcohol Dependence was an ailment that had been contributed to in a material degree by her employment and was an injury within the meaning of section 4 of the Act.
205. As I have already found above that the evidence demonstrates that Mrs Graves currently continues to suffer the effects of her psychiatric disorder which is an injury within the meaning of the Act it follows that she continues to suffer the effect of her work related injury. Therefore she is entitled to claim compensation pursuant to s 16 and s 19 of the Act.
Permanent Impairment
206. On the issue of permanent impairment there have been various assessments of WPI under Table 5.1 varying from 10% to 25% that would have been inevitably influenced by the amount of alcohol Mrs Graves was drinking at the time.
207. In September 2007 Dr Smith assessed Mrs Graves’ as suffering WPI of 15% according to Table 5.1 of the Comcare Guide, on the basis of requiring some supervision and direction in her activities of daily living and continued disturbances in thinking and behaviour, but expressed the opinion the impairment was predominantly related to her alcohol abuse.
208. In his subsequent report of March 2008, Dr Smith confirmed his assessment of 15% WPI, despite Mrs Graves’ abstinence from alcohol. In his report of November 2007, Dr Baker had agreed with Dr Smith’s assessment. The difficulty with both of these assessments is that neither practitioner described the nature of the activities of daily living that needed supervision as required by Table 5.1.
209. The Glossary of the Comcare Guide defines “activities of daily living” as activities which an individual needs to perform to live in terms of primary biological and psychosocial function. The activities listed include: the ability to receive and respond to incoming stimuli, standing, moving, eating, control of bladder and bowel and self care with bathing and dressing.
210. The respondent submitted, quite correctly, that there was no evidence before the Tribunal that Mrs Graves currently required supervision or direction for activities of daily living, as defined in the Comcare Guide.
211. I am satisfied, however, that there is sufficient evidence to support an assessment of 10% WPI, on the basis that Mrs Graves does suffer minor distortions of thinking and reactions to stressors of daily living with minor loss of personal or social efficiency.
212. Therefore I find that Mrs Graves suffers 10% WPI according to Table 5.1 of the Comcare Guide as a result of her work related Major Depressive Disorder with secondary Alcohol Dependence.
Amount of compensation
213. The final question to address is the amount of compensation Mrs Graves can claim as a result of her whole person impairment.
214. In Canute v Comcare (2006) 226 CLR 535 the High Court decided that the Act requires a separate assessment of impairment for each injury.
215. I have found that Mrs Graves has suffered two work related injuries namely an injury to the right ear with residual permanent tinnitus resulting in 5% WPI and Major Depressive Disorder with secondary Alcohol Dependence resulting in 10% WPI.
216. Therefore, as compensation under s 24 and s 27 is only payable in respect of an injury resulting in at least 10% permanent impairment, Mrs Graves is entitled to claim compensation only for her 10% WPI with respect of her Major Depressive Disorder with secondary Alcohol Dependence.
COSTS
217. I did not hear argument from the parties at the hearing on the question of costs. As such, I propose to allow the parties 14 days to advise the Tribunal if they wish to put argument on the matter of costs. As Mrs Graves has been successful, if they do not, the Tribunal will make an order pursuant to s 67(8) of the Act that the respondent pay Mrs Graves’ costs.
DECISION
218. For the above reasons the Tribunal decides that:
a)The reviewable decision of 5 October 2006 is set aside.
b)The reviewable decision of 6 March 2007 is varied so that Mrs Graves has suffered 10% WPI as a result of her work related injury of “Major Depressive Disorder with secondary co-morbid Alcohol Dependence” and is entitled to claim compensation pursuant to s 24 and s 27 of the Act.
c)The reviewable decision of 7 March 2008 is set aside and in substitution it is decided that Mrs Graves continues to suffer the effects of her work related injuries namely:
(i) an injury to her right ear resulting in permanent tinnitus; and
(ii) Major Depressive Disorder with secondary Alcohol Dependence;
and is entitled to claim compensation under s 16 and s 19 of the Act.
d)The decision on the matter of costs is reserved. The parties have 14 calendar days from the date of this decision to advise the Tribunal if they wish to put further argument on the matter of costs. If they do not, the Tribunal will make an order pursuant to s 67(8) of the Act that the respondent pay Mrs Graves’ costs.
I certify that the 218 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.
Signed: ……[sgd]…….………..
Steven Mulipola, Associate
Date of hearing: 28 and 29 August 2008
Date of decision: 30 October 2008
Counsel for the Applicant: Mr J DoddSolicitors for the Applicant: Slater & Gordon Lawyers
Counsel for the Respondent: Miss R Henderson
Solicitors for the Respondent: Australian Government Solicitor
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