Griffiths and Comcare
[2003] AATA 614
•30 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 614
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1635
GENERAL ADMINISTRATIVE DIVISION ) Re LESLIE ARTHUR GRIFFITHS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
DR P D Lynch, MemberDate30 June 2003
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, the Tribunal decides that:
(i) Mr Griffiths is entitled to compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 with an impairment of 25 per cent from Table 5.1 of the “Guide to the Assessment of the Degree of Permanent Impairment”.
(ii) Mr Griffiths is entitled to compensation pursuant to section 27 of the Safety, Rehabilitation and Compensation Act 1988.
(iii) The Respondent is liable to pay the Applicant's reasonable legal costs as agreed and in accordance with the Administrative Appeals Tribunal Practice Direction.
..............................................
Ms SM Bullock Presiding Member
DECISION (CORRIGENDUM)
Before : Ms S M Bullock – Senior Member
Dr PD Lynch – MemberDate: 28 July 2003
Place: Sydney
The Tribunal made a decision in this matter dated 30 June 2003 pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (“the Act”).
It has come to the Tribunal’s attention that there is an obvious error in the text of the decision and reasons for the decision and accordingly, the Tribunal desires to amend the decision pursuant to section 43AA of the Act and provides as follows:
A. Page 1 and 2
Decision:“Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, the Tribunal decides that:
(i) Mr Griffiths is entitled to compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 with an impairment of 20 per cent from Table 5.1 of the “Guide to the Assessment of the Degree of Permanent Impairment”.
(ii) Mr Griffiths is entitled to compensation pursuant to section 27 of the Safety, Rehabilitation and Compensation Act 1988.
(iii) The Respondent is liable to pay the Applicant’s reasonable legal costs as agreed and in accordance with the Administrative Appeals Tribunal Practice Direction.
B. Paragraph 87 and 88, page 42
“87. Accordingly, the Tribunal agrees with the assessment provided by Dr Reinhardt but confirmed by all of the evidence, particularly that provided by Mr Griffiths. The Tribunal has already found, based on Dr Reinhardt’s opinion, that Mr Griffiths had a 5 per cent impairment prior to 1 December 1988 and this must be taken into account in assessing Mr Griffiths’ degree of impairment from 1 December 1988. Dr Strauss’ opinion, while professionally provided, does not reflect the severity of the condition as evidenced by all of the material available to the Tribunal.
88. Accordingly, for all of the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, the Tribunal decides:
(i) Mr Griffiths is entitled to compensation pursuant to section 24 of the Act with an impairment of 20 per cent from Table 5.1 of the Guide;
(ii) Mr Griffiths is entitled to compensation pursuant to section 27 of the Act;
(iii) The Respondent is liable to pay Mr Griffiths’ reasonable legal costs as agreed and in accordance with the Administrative Appeals Tribunal Practice Direction.”
..........................................
Ms S M Bullock
Presiding Member
CATCHWORDS
WORKER’S COMPENSATION - Permanent Impairment - Whether a Permanent Impairment Which Increases is the Same or a Different Permanent Impairment for the Purposes of Lump Sum Compensation - Transitional Provisions - Qualitative and Quantitative Changes in Applicant's Impairment
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 27, 124
Compensation (Commonwealth Government Employees) Act 1971 ss 39
AUTHORITIES
Comcare v Maida (2002) 36 AAR 69
Department of Defence v West (1998) 85 FCR 491
Re Emeryand Comcare (1992) 15 AAR 477
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147
Re Blackman and Australian Telecommunications Corporation (1990) 19 ALD 781
Brennan v Comcare (1994) 50 FCR 555REASONS FOR DECISION
30 June 2003 Ms S M Bullock, Senior Member Dr P D Lynch , Member 1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr Leslie Arthur Griffiths, of a reviewable decision dated 24 April 2001 made by the Manager of Reconsiderations, Military Compensation and Rehabilitation Service (T65). This decision was that Mr Griffiths' condition of post traumatic stress disorder became permanent prior to 1 December 1988 and that Mr Griffiths had no entitlement to lump sum compensation under the Compensation (Commonwealth Government Employees) Act 1971 and that accordingly under subsection 124(3)(b) of the Safety, Rehabilitation and Compensation Act 1988 compensation was not payable to Mr Griffiths for permanent impairment and non-economic loss. The reviewable decision affirmed a decision dated 11 December 2000 made by a Delegate of the Military Compensation and Rehabilitation Service (T60).
2. A hearing was held before the Tribunal in Sydney on 14 and 15 April 2003. Oral evidence was provided by the Applicant, who was represented by Mr N Dawson of Counsel. The Respondent was represented by Mr G Johnson of Counsel. Evidence was also provided by Dr K Reinhardt, Consultant Psychiatrist at St John of God Hospital, Richmond. Concurrent Medical Evidence was provided by Dr R Apathy, Clinical Psychologist and Dr N Strauss, Consultant and Occupational Psychiatrist. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-T65) and the following exhibits:
Exhibit No
Description
Date
A1
Report of Dr R Apathy, Clinical Psychologist
17 July 2002
A2
Report of Dr R Apathy, Clinical Psychologist
8 October 2002
A3
Report of Dr K Reinhardt, Consultant Psychiatrist
3 April 2003
R1
Report of Dr N Strauss, Consultant and Occupational Psychiatrist
20 December 2001
R2
Report of Dr N Strauss, Consultant and Occupational Psychiatrist
16September 2002
R3
Letter to Dr Strauss from Phillips Fox (Melbourne)
9 September 2002
R4
Series of documents comprising Mr Griffiths’ Service Medical Records.
Various
ISSUES
3. The issues to be determined in this matter are:
·When did Mr Griffiths' condition of post traumatic stress disorder become permanent?
·Was the worsening of Mr Griffiths' post traumatic stress disorder the same or a different permanent impairment?
·Is Mr Griffiths' post traumatic stress disorder permanent for the purposes of section 24 of the Safety, Rehabilitation and Compensation Act 1988 and if so, what is the correct assessment of permanent impairment under the provisions of the "Guide to the Assessment of the Degree of Permanent Impairment” (“the Guide”)?
·Is Mr Griffiths entitled to compensation under the provisions of section 27 of the Act?
LEGISLATION
4. A determination in this matter requires consideration of the provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act").
5. Section 4 of the Act deals with definitions including the definitions of "impairment”, “injury" and "permanent” injury. The definitions of these terms are as follows:
"4 Interpretation
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(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
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
permanent means likely to continue indefinitely.
…"
6. Section 24 of the Act provides for the payment of lump sum compensation for injuries resulting in permanent impairment. Section 24 provides, as relevant:
" 24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
(9) For the purposes of this section, the maximum amount is $80,000. ”
7. Section 27 of the Act deals with compensation for non-economic loss, where an injury results in permanent impairment and compensation is payable in respect of an injury under section 24 of the Act.
8. It should be noted that before the Act, there was not a general system for the payment of lump sum compensation to Commonwealth employees. The 1971 Act had a scheme to reimburse injured employees for medical expenses and to pay compensation on a weekly basis during periods of incapacity. Under section 39 of the 1971 Act, lump sum compensation was payable to employees where work related injuries had resulted in certain specific loss situations. For example, this included the loss of the efficient use of the leg, but did not include the loss of any part of the back. Under subsection 39(4) of the 1971 Act, there was no provision for lump sum payments in respect of psychiatric illness or disease.
9. The Transitional Provisions of the Act are contained within Division 2 and specifically section 124 of the Act states that a person is entitled to compensation under the Act in respect of an injury suffered before 1 December 1988 if compensation was or would have been payable to the person in respect of that injury, loss or damage under the applicable legislation which in this matter is the 1971 Act. As relevant, section 124 of the Act states:
" 124 Application of Act to pre-existing injuries
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i)where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or
(iii) in any other case—under the 1971 Act as in force when the impairment or death occurred.
(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
(a) where the impairment or death occurred before the commencement of the 1930 Act—the 1912 Act;
(b) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force when the impairment or death occurred; or
(c) in any other case—the 1971 Act as in force when the impairment or death occurred.
…”
BACKGROUND
10. The following information is provided by way of background and the facts contained within are not disputed:
· Mr Griffiths was born on 15 July 1950 and enlisted in the Australian Army from 21 April 1971 until 20 October 1972, enlisting as a National Serviceman. Mr Griffiths served in the Medical Corps and undertook basic training at 1 Recruit Training Battalion at Kapooka and Medical Corp training at the School of Army Health, Healsville in Victoria.
· Between 13 August 1971 and 20 October 1972, Mr Griffiths participated in medical evacuations in a C130 RAAF Aircraft from Saigon [Ho Chi Minh City] in South Vietnam to Australia.
· Mr Griffiths was discharged from the Army on 20 October 1972 and at that time was a Private. The medical discharge documents noted that Mr Griffiths was discharged at "expiration of service" (T4).
· On 10 March 1998, Mr Griffiths completed a claim for "PTSD" lodging this with the Department of Veterans' Affairs on 21 April 1998 (T6). Liability was initially denied on 18 May 1998 (T9).
· On 26 May 1998, the decision of 18 May 1998 was set aside and it was determined that military service was a contributing factor to Mr Griffiths' post traumatic stress disorder and that the date of the injury was 27 March 1972 as that was the first date treatment was sought (T13).
· On 17 October 2000, a claim was lodged by Mr Griffiths for permanent impairment (T55) and this was refused by the Respondent on 11 December 2000 (T60).
· On 24 April 2001, following the original decision, a request of reconsideration was made which was subsequently refused (T65).
· On 25 June 2001, Mr Griffiths lodged an Application for Review to the Tribunal (T1).
EVIDENCE OF LESLIE ARTHUR GRIFFITHS
11. Mr Griffiths currently lives in West Wyalong, having been born in the Southern Highlands of New South Wales. At the age of 14 years, he moved to West Wyalong. Mr Griffiths left school at that age obtaining his schooling to the level of Second Form or Year Eight. After leaving school, Mr Griffiths undertook various positions including helping on a farm and working at a grocery store.
12. When aged approximately 18 years, Mr Griffiths commenced his nursing training at West Wyalong District Hospital. He completed his training and qualified as a Registered Nurse. At that time, West Wyalong Hospital was a very busy hospital, he stated, having approximately 150 beds. Mr Griffiths worked at the hospital until commencement of his National Service in the Army on 21 April 1971. Mr Griffiths noted that his nursing duties at West Wyalong District Hospital included work in the surgical theatre, three days per week and also being on call on a 24 hour basis in addition to undertaking general nursing work.
13. When Mr Griffiths commenced his military service, he was located at 2 Military Hospital, Ingleburn, first serving as a Medical Orderly. Mr Griffiths undertook and passed well the Medical Nursing Orderly Course. Having then passed that course, he was recommended to undertake the Medical Assistance Course (T3, p18), which he completed in October 1971, gaining his formal qualification in November 1971 (T3, p19). Mr Griffiths then worked as a Medical Assistant at 2 Military Hospital at Ingleburn. His duties involved him undertaking medical evacuation flights of seriously wounded soldiers from South Vietnam via Butterworth back to Richmond and then by helicopter to either 2 Military Hospital, Ingleburn, or to the Repatriation General Hospital at Concord. Mr Griffiths told the Tribunal that he was involved in eight such evacuations. He was also involved in the nursing of wounded soldiers, some of whom he had helped evacuate from South Vietnam. By this time, Mr Griffiths had obtained the rank of Private.
14. Prior to his discharge from the Army on 20 October 1972 (T3), Mr Griffiths was himself admitted to hospital, initially he stated, for a very brief period at 2 Military Hospital Ingleburn and then in Repatriation General Hospital at Concord. Mr Griffiths' admission which he believed to have been from 27 March 1972 until 6 April 1972 (T3, p22) was precipitated, he stated by his "collapsing, getting the shakes, and being anxious" (Transcript, 15 April 2003, p28). Mr Griffiths agreed with notes from that time that he was suffering from nervous tension, insomnia and tremulousness. Mr Griffiths believed that these symptoms were associated with a recent medical evacuation during which he was caring for a young soldier who had had his legs blown off at the hips. Mr Griffiths also noted that he had a slight tremor before his Army Service, but it was not detected by the Army on enlistment and he was passed as "A1 Fit". Mr Griffiths agreed with Service Medical Documents that he suffered with similar symptoms one week after joining the Army.
15. Following his own hospital admission, Mr Griffiths was still involved in nursing duties, but then at specialist clinics and undertaking general medical work. He did not undertake any further trauma work as he had previously done in the theatre and surgical wards nor did he participate in any further medical evacuations from South Vietnam.
16. Following discharge from the Army, Mr Griffiths returned to nursing at West Wyalong District Hospital working again in the theatre, dealing with surgical cases and with accident and emergency victims. Mr Griffiths stated that he worked well at that time. He was "keyed up" and happy to be back nursing in that field. Mr Griffiths stated that his minor shakes were still present but did not prevent him working in the surgical theatres. Mr Griffiths continued to work at West Wyalong District Hospital from 1972 until 1991. He stated that during this time, his tremor became progressively worse. His stress levels increased. There was a higher workload as a result of a reduction in hospital nursing staff. He stated that the patient care decreased. Mr Griffiths further stated that he was frustrated with government cutbacks to the hospital system and the reduction of expenditure particularly on nursing.
17. Mr Griffiths told the Tribunal that his home life was not so bad. He had first married in 1975 and both he and his wife were busy and working. Mr Griffiths' first marriage ended approximately five years ago. Mr and Mrs Griffiths were separated for approximately one year prior to their final separation. Mr Griffiths stated that his first marriage ended because his wife could not tolerate him and because he found it difficult dealing with his wife's asthma attacks, noting that he had to resuscitate her on three occasions. He still has regular contact with his first wife and their three children. Mr Griffiths told the Tribunal that he remarried in 2002.
18. When working at West Wyalong District Hospital, Mr Griffiths stated that he did not seek treatment for his increasing stress levels because West Wyalong was a small town. He did not want it known that he had psychological problems as that might have impacted on his being able to continue to work. Furthermore, Mr Griffiths believed there was no one in the town able to treat him. Mr Griffiths agreed with the report of Dr B White, Psychiatrist, who in a report dated 23 September 1997, noted that Mr Griffiths had suffered nightmares and a restless sleep pattern for 20 years and that the nightmares were about military service as well as his civilian nursing service (T5). Mr Griffiths first consulted Dr White on 18 September 1997. In relation to civilian nursing, his nightmares arose out of, for example, his having to treat accident victims. Mr Griffiths stated that he suffered insomnia and tremors less than he had suffered in the Army. Furthermore, Mr Griffiths stated that while he had nightmares and also the symptoms of depression in 1972, they were not so severe because, he stated, he kept very busy. Mr Griffiths noted that between 1972 and 1991, his tremors made it progressively difficult for him to write or to repair, for example, motorcar engines.
19. Mr Griffiths agreed with the proposition put by Mr Johnson for the Respondent, that his symptoms of anxiety, nightmares, insomnia and flashbacks continued during the 1970s and 1980s and gradually worsened. Flashbacks in the 1980s and 1990s were to do with a soldier having his legs blown off at the hip, but he later had flashbacks of a few accident victims who had been brought into West Wyalong Hospital. Also during the 1970s and 1980s, Mr Griffiths reported that he had diminished concentration and short-term memory. He stated that during the last ten years, his symptoms have "sped up".. Mr Griffiths noted marked increased symptomatology in 1991, when he was crying a great deal and he had what he described as “a major depression”.. This was significantly different, he stated, to the way he was in the 1970s and 1980s, before he left his employment at West Wyalong District Hospital.
20. By 1991, Mr Griffiths reported that he was overcome with flashbacks, having little sleep and finding it increasingly difficult to have to work at the hospital. Consequently in 1991, Mr Griffiths left his employment at West Wyalong District Hospital, he stated, for variety of reasons. One of the major reasons was that his tremor was so severe. He was Nursing Supervisor at that time and other staff were commenting on his tremor. Mr Griffiths stated that he was not performing his professional duties to the requisite level. Another reason for him leaving employment in 1991 was that he was not coping with his work, particularly given his sleeplessness. Furthermore, Mr Griffiths stated that there was difficulty dealing with the reduction of staff and what he described as the downgrading of the hospital system. This situation caused him stress and frustration and was another reason for leaving a hospital when he did.
21. Just prior to 1999, Mr Griffiths noted there was a change in his symptoms in that he was not able to control his anger and he was easily aroused to anger. It became an issue for him. After leaving West Wyalong District Hospital, Mr Griffiths worked as a handyman. He later saw an advertisement in a magazine for the Injured Servicemen Association. Mr Griffiths contacted that association and was subsequently referred to the Vietnam Veterans' Association. As result of contacting those two organisations, Mr Griffiths stated that he was referred to Dr R Apathy, Clinical Psychologist in 1996 and to Dr White, Consulting Psychiatrist, in September 1997. Mr Griffiths later consulted Dr K Reinhardt, Consulting Psychiatrist, at St John of God Hospital, North Richmond. That referral occurred in 1998. Mr Griffiths was subsequently admitted to St John of God Hospital. Prior to his first admission, Mr Griffiths described that he was suffering continually from flashbacks, was very anxious and had what he described as panic attacks. He noted that he felt significantly better after his first admission to St John of God Hospital, his treatment regime consisting of medication, group discussion and individual counselling. Mr Griffiths subsequently had five admissions at St John of God Hospital, the most recent being in March and April 2003. Mr Griffiths told the Tribunal that just prior to his most recent admission, he was again very anxious. Speculating on the symptoms which lead to the recent admission, Mr Griffith postulated it could have arisen as a result of having to deal with the issues concerning the war in Iraq.
22. Mr Griffiths continues as an outpatient to consult Dr Reinhardt every three months. It was noted by Mr Griffiths that he was discharged from St John of God Hospital one week prior to the Hearing on 14 April 2003. Following his most recent admission to St John of God Hospital, Mr Griffiths' medication was increased and he reported that he is feeling better.
23. Turning to Mr Griffiths' current situation, he stated that he lives in a house on a farm. He cares for the owners' pigs. Mr Griffiths undertakes duties around the house and potters around the garden. He has no hobbies, as he cannot concentrate for long on any particular activity. When attempting to cook, Mr Griffiths must use a timer, otherwise he forgets about the food which is cooking. Mr Griffiths stated that he is often confused, forgets where he is and what he is doing. Mr Griffiths finds difficultly getting in and out of the lift. He reports gait problems and has a tendency, he stated, to fall to the left. In relation to the tremor of his right and left upper limbs, Mr Griffiths noted that the right tremor is controlled by a surgically implanted stimulator, which significantly controls the tremor, but he still has difficulty for example in writing. Mr Griffiths demonstrated for the Tribunal the effects of a tremor when a stimulator was turned off. The Tribunal experienced a dramatic and major tremor visible to all in the hearing room. Mr Griffiths stated that his left-sided tremor is worsening and his neurosurgeon, Dr C Teo, has recommended a new implant, which could control his tremors, both for the left and right upper limbs. Mr Griffiths stated that previously he has had the left-sided tremor dealt with by what he referred to us a laser procedure. The Tribunal notes from Dr Teo's report dated 20 April 2000 (T55) that that procedure may well be a thalamotomy. The Tribunal also notes that the surgical implant for the spinal stimulator may have occurred after April 2000.
24. Mr Griffiths currently takes the medication "Lovan". He takes three tablets per day and one at night. Mr Griffiths was not able to provide the strength of the Lovan medication. Mr Griffiths also takes "Losec" and three "Epilim" (250 mg) tablets daily. Mr Griffiths has also been prescribed "Imovane" and "Neurontin" .. Mr Griffiths stated that he also suffers from Type 2 diabetes. Mr Griffiths informed the Tribunal that his medication has helped his insomnia and he often does not remember his nightmares. He believes that he still experiences nightmares because when he wakes he is in a lather of perspiration and the bed is in a state of great disarray because of what he described as his trashing about.
25. Mr Griffiths described continuing to have flashbacks during the day. While he was confused in the 1970s and 1980s, he concluded that those symptoms were not as bad as he has experienced in the past ten years. Mr Griffiths agreed that he is a quiet person. He stated that he used to only associate with people from work as that is all he could cope with. Mr Griffiths further noted that nothing significant had happened in 1996 apart from his wife's asthma attack. He noted that he was crying a great deal and was depressed. He confirmed that his symptoms were a lot worse in 1996 than in the 1970s and 1980s. Mr Griffiths noted that he can look after himself in the sense of dressing and showering. He has an incontinence problem but states that he can deal with this. Mr Griffiths stated that he usually does not drive as his second wife undertakes such activity. He may drive on some occasions.
EVIDENCE OF DR K REINHARDT, CONSULTANT PSYCHIATRIST, ST JOHN OF GOD HOSPITAL, RICHMOND
26. Dr Reinhardt provided a report dated 3 April 2003 (Exhibit A3). In her report, Dr Reinhardt noted that she first assessed Mr Griffiths on 11 May 1998 and that since that time, he has had five periods of in-patient treatment at St John of God Hospital and she continues to see him as an outpatient. Dr Reinhardt noted that Mr Griffiths has been chronically distressed and impaired by his psychiatric condition and suffers from severe chronic post traumatic stress disorder. Dr Reinhardt noted that Mr Griffiths has a tremor, which is severe. She noted that tremor is common in patients with chronic post traumatic stress disorder, but not usually as severe as that experienced by Mr Griffiths. Dr Reinhardt noted that while the cause of Mr Griffiths' tremor is debatable, there is no doubt that his chronic post traumatic stress disorder significantly contributed to its severity and deterioration.
27. Before 1998 (sic), Dr Reinhardt noted that Mr Griffiths was employed full time as a registered nurse, was totally independent in all his activities and able to enjoy recreational pursuits. Since that time, Dr Reinhardt noted a significant further impairment. In 1991, Mr Griffiths could no longer work as a nurse and thereafter he worked intermittently as a handyman. Since 1999, Mr Griffiths has not been able to work at all. Dr Reinhardt concluded that Mr Griffiths is now markedly restricted in all areas of functioning. He is able to involve himself in some activities for one and half hours in the morning but then needs to rest because he feels so weak and tired before being able to undertake another one and half hours of activity in the afternoon. He is only able to go out for example to undertake shopping, if he is accompanied by his wife or a friend. Dr Reinhardt noted that Mr Griffiths' concentration and short-term memory are impaired and that he has difficulty completing tasks. He does attempt to assist his wife in the garden but needs to lie on the grass to take out weeds. Dr Reinhardt noted that Mr Griffiths has sexual dysfunction, which causes significant distress.
28. Dr Reinhardt concluded that Mr Griffiths' level of impairment is 25 per cent. She noted marked disturbances in thinking such as recurrent intrusive thoughts, nightmares and night tremors, inappropriate anxiety and flashbacks. There is a definite disturbance of behaviour, Dr Reinhardt noted, for example as exhibited by irritability, inappropriate anger, social withdrawal and insomnia. Dr Reinhardt noted that Mr Griffiths often thrashes about in bed, and has episodes of confusion, which leads to him wandering around the paddock not knowing how he got there. When working at West Wyalong Hospital, he may have had some symptoms, but they certainly did not impair him sufficiently to prevent him from undertaking such active nursing work. Dr Reinhardt noted that since 1988, there have been some improvements in Mr Griffiths' anxiety as he was more stable and controlled on medication. There has been deterioration however in his concentration and his experiencing disassociation. Furthermore, his energy levels have also deteriorated enormously. He is not able to function through most of the day, having to rest. Mr Griffiths' tremors have also deteriorated enormously. Mr Griffiths' moods have stabilised so while there has been some improvement and stabilisation there has been a deterioration in his day to day living and being able to function. Dr Reinhardt considered that Mr Griffiths has stabilised over the last year or so. Having so concluded however, Dr Reinhardt noted that such people as Mr Griffiths are very vulnerable to stress and their impairment fluctuates over time.
CONCURRENT EVIDENCE OF DR R APATHY, CLINICAL PSYCHOLOGIST AND DR N STRAUSS, CONSULTANT AND OCCUPATIONAL PSYCHIATRIST
Dr R Apathy
29. Dr Apathy provided reports dated 17July 2002 (Exhibit A1) and 8 October 2002 (Exhibit A2). Dr Apathy noted in his reports that he was not really in disagreement with Dr N Strauss, Consultant Psychiatrist, despite having reached different conclusions. Dr Apathy noted that he first saw Mr Griffiths in 1996, when he sought help for anxiety, poor sleep and poor sleep architecture. Mr Griffiths showed signs of a mild tremor at that time.
30. Dr Apathy noted that Mr Griffiths first consulted him in 1996 and in the last two years has consulted Dr Apathy on a monthly basis. During the earlier period, Dr Apathy noted that Mr Griffiths' anxiety and sleep problems improved slightly but his tremor became more and more debilitating. At that stage, Mr Griffiths was referred for specialist assessment which eventually led to surgical intervention to decrease the tremor by way of a spinal implant. Dr Apathy also noted that there were increasing problems with Mr Griffiths' balance and gait and that he had significant frontal lobe symptoms such as “fullness of the head”, inability to concentrate and urinary incontinence. As at 1 December 1988, Dr Apathy reported that Mr Griffiths displayed significant distortions of mental capacity, thinking and abnormal reactions to stressors that significantly effected his daily living. Based on Table 5.1 of the Guide, Dr Apathy rated his level of impairment at five per cent. Since December 1988, Dr Apathy opined that Mr Griffiths' mental and physical condition has significantly deteriorated and that he would rate his impairment at 20 per cent based on verified evidence that Mr Griffiths displays marked disturbance in his thinking and significant disturbance in his behaviour even when medicated. Based on all of the evidence, Dr Apathy concluded that there has been a significant deterioration in Mr Griffiths' functioning. While his tremor is controlled by the spinal implant, he needs regular visits to the specialist and in regard to his psychiatric symptoms, while there is some control, the symptoms remain and continue. There has been deterioration in Mr Griffiths' home life and his capacity for work has also clearly deteriorated. Mr Griffiths continues to have psychiatric and psychological support on a regular basis and is prescribed antidepressant medications. There is also evidence to suggest, Dr Apathy opined, that changes to brain tissue as a result of trauma is permanent and with time, one can expect deterioration rather than stabilisation or improvement (Exhibit A1).
31. In his second report, Dr Apathy further noted there is evidence to suggest that there may be damage to brain tissue in some cases as a result of trauma and that being so, the condition would by definition be permanent as there is no evidence of tissue regeneration or the development of alternate pathways. Some research suggests that the damage in post traumatic stress disorder is progressive, therefore one could expect deterioration over time. Dr Apathy noted that post traumatic stress disorder is an anxiety disorder and cortisol levels had been shown to heighten anxiety. Tremors may increase with levels of anxiety and therefore post traumatic stress disorder induced increased cortisol levels may be responsible for both the loss of cells in the hippocampus and the heightened state of anxiety manifested by increased tremors (Exhibit A2). In relation to Mr Griffiths' tremors, it may be that the tremors have nothing to do with anxiety although they may be aggravated by it.
32. Dr Apathy disagreed with Dr Strauss' assertion that with post traumatic stress disorder, many people with the condition improve and the condition resolves. Dr Apathy noted that that may be truth of cases where the condition is of relatively recent onset. Dr Apathy noted that he deals with the veterans’ population where patients have been under various forms of treatment for ten or even 15 years and while they may be stable, their long-term prognosis is poor. There may well be some temporary symptoms reduction following treatment, but the remission rates remain high.
33. Dr Apathy summarised his argument, which is that Mr Griffiths has post traumatic stress disorder and that in many people suffering from this condition, they may suffer from functional brain disorders. There also has been shown that in some cases of post traumatic stress disorder, the patient also suffers from organic brain damage. In Mr Griffiths' case, it must therefore be possible that he has a functional brain disorder and organic brain damage. It is known that Mr Griffiths suffers from an organic brain damage, as he required surgical intervention. Therefore, Dr Apathy argued, it must be accepted as possible that Mr Griffiths’ progressive tremor is related to his post traumatic stress disorder (Exhibit A2).
34. At hearing, Dr Apathy noted that having first seen Mr Griffiths in 1996, he later referred him to Consultant Psychiatrist, Dr B White in 1997, although the Tribunal notes a letter from Dr White to Dr P Purches dated 23 September 1997, thanking Dr Purches for the referral (T5). Dr Apathy noted that at the time of his referral, the most notable feature of post traumatic stress disorder, which caused him concern, was his observable tremor. Dr Apathy noted that he had seen other Vietnam veterans' experiencing tremors but with Mr Griffiths, it was much worse and seemed more than just anxiety based. In 1998, the situation at home was a major issue and Mr Griffiths' great worry at that time was the fear of his wife having an asthma attack.. Furthermore, the loss of his employment was a matter of great distress to Mr Griffiths. When Dr Apathy first saw Mr Griffiths, the sleep problems he was experiencing were the predominant issue. This was associated with recurrent nightmares, night terrors and restless sleeping. In a very short period of time, Dr Apathy noted a very serious deterioration in Mr Griffiths, particularly in relation to his tremor. There was some shaking, but he was able to manage to hold a cup without spilling the contents. Within the period of six to nine months, in 1998 it was impossible for Mr Griffiths to do this. The tremor is a permanent feature of Mr Griffiths’ life, Dr Apathy stated.
35. Pinpointing the deterioration in the psychiatric condition, as Dr Strauss and Dr Reinhardt had identified, Dr Apathy stated it is hard to consider such issues retrospectively. Dr Apathy had always considered that the loss of Mr Griffiths’ job indicated he recognised that he had a serious difficulty, which did not enable him to continue his work. He prided himself very much on being a paramedic and being in the health profession. Dr Apathy noted that Mr Griffiths loved his job. That sort of change of life can often be a precipitating function to decline in veterans, Dr Apathy opined. The situation for many veterans is that their domestic situation may be unstable, they do not have many friends or many interests and then suddenly their employment ends and they are left wondering about the future. When those factors are combined, that often provides the precipitation into crisis after long periods of time for example, over twenty years. There is a period of time, Dr Apathy opined during which Mr Griffiths came to the realisation that he was no longer capable of fulfilling his vocation. There is an incident in West Wyalong when Mr Griffiths was in the vicinity of a motor vehicle accident and even though he was not at that time working as a nurse, having left his employment at West Wyalong Hospital, he had to turn away because he felt unable to assist the injured. This starkly brought home the realisation of his deterioration. Furthermore, Dr Apathy noted that Mr Griffiths became increasingly concerned that he would not be able to deal with his wife’s asthma attacks and this was extremely upsetting for him.
36. Dr Apathy continues to see Mr Griffiths once per month at Calvary Hospital in Wagga Wagga. Dr Apathy and Dr Reinhardt work closely together in relation to Mr Griffiths’ treatment and there is an ongoing program.
37. Dr Apathy concluded in relation to activities of daily living that Mr Griffiths does require supervision or assistance. He noted that Mr Griffiths requires assistance with the preparation of meals and in relation to feeding, he has observed Mr Griffiths’ eating and he does this with a great deal of difficulty even though the right hand tremor is controlled by the surgical implant, Dr Apathy noted that there is only partial control. He can perform activities of standing, moving, feeding, control of bladder and self-care and sexual function without supervision or assistance, when he is appropriately medicated, Dr Apathy believed. Dr Apathy noted that because of Mr Griffiths geographical location, he has to travel from West Wyalong to Wagga to see him or to attend Dr Reinhardt at St John of God Hospital in North Richmond. However, Dr Reinhardt does travel to Wagga Wagga once per month so that this provides her with the opportunity of treating Mr Griffiths on a monthly basis. Dr Apathy had no doubt that if the services were more available geographically, then the frequency of the visits would increase. This issue has often been discussed and there has been agreement that it would be desirable for more frequent consultations.
38. In relation to the differences of treating someone in a military situation as opposed to at West Wyalong District Hospital, the difference noted by Dr Apathy is that in the Army, Mr Griffiths had to attend to his work and the wounded, he could not say “I’ve had enough, I’m going home”. In the civilian hospital however, although exposed to the same type of injury, the suffering and trauma, the helplessness component was not present and Mr Griffiths could have elected, if he wanted to, to conclude that he had had enough and to leave. Therefore, the two situations were not equivalent. Dr Apathy noted that post traumatic stress disorder is a recent diagnosis which used to be talked about as, for example, “operational fatigue” (Transcript, 15 April 2003, p71). The recognition has been that post traumatic stress disorder is a psycho-neurosis but it is also a physio-neurosis. That is, there is recognition that there are physiological components to the disorder. This must be taken into account, Dr Apathy noted, in deciding what Mr Griffiths is capable of doing. In relation to the activities of daily living, to Dr Apathy’s way of thinking, they are written in favour of people who are physically injured and they give little scope for properly describing the impact on daily living activities by a psychiatric condition, or a condition which has psychological emotional components. Such people do not easily fit into the options provided by the description of activities of daily living.
Dr N Strauss
39. Dr Strauss provided two reports dated 20 December 2001 (Exhibit R1) and 16 September 2002 (Exhibit R2). Dr Strauss noted that following discharge from the Army, Mr Griffiths returned to work at West Wyalong Hospital until 1999 when he stated that he gave up work because of his medical condition, taking up work as a handyman. Eventually this work was concluded, as Mr Griffiths could not handle that employment. Dr Strauss noted that Mr Griffiths was shaking significantly, had panic attacks and depression. Dr Strauss noted that Mr Griffiths had a surgical implant to attempt to control the tremor on his right side. There are still problems with his left side and another operation was foreshadowed. Dr Strauss noted that after 25 years of marriage, Mr Griffiths’ first wife and children left him. This was because his wife could not cope with his behaviour and presentation.
40. Dr Strauss noted that Mr Griffiths’ history was that at the time of leaving the Army, he was suffering from bi-lateral tremors in his arms and from a great deal of anxiety and depression. Dr Strauss also noted that before discharge, Mr Griffiths was admitted to hospital for psychiatric care for two weeks. Following the Army, Mr Griffiths returned to work at West Wyalong Hospital where he undertook surgical work. He coped during the day but at night at home he did not feel so well. Mr Griffiths suffered from insomnia, nightmares and developed flashbacks from the time he was in the Army. He would have panic attacks. It was in 1991 that he ceased work because of psychological problems and his tremors. Dr Strauss noted that currently, Mr Griffiths has nightmares every night but through a desensitisation program, he was experiencing less flashbacks. Mr Griffiths still has panic attacks in crowded or busy situations and does not sleep well. Furthermore, Dr Strauss reported that Mr Griffiths is anxious when he goes for a walk, he rarely sees friends and does not watch television. Mr Griffiths’ memory and concentration are poor, he rarely reads, he complains of depression and tearfulness and has had frequent suicidal thoughts over the years. Mr Griffiths will on occasion drive a car locally, but has to be careful because of his tremor. He likes to walk and rest and operate a computer. Mr Griffiths has been prescribed medication Losec, Lovan, Epilim and Imovane and medication for high levels of cholesterol. Dr Strauss noted that Mr Griffiths has had several hospital admissions for psychiatric treatment with his last treatment being six months prior to Dr Strauss’ report of 20 December 2001.
41. Dr Strauss concluded that he accepted that Mr Griffiths developed post traumatic stress disorder as a consequence of the experience of dealing with a number of badly mutilated patients while he was working in the military hospital in the Army. There may have been a contribution of personal issues to this, but this did not detract from Dr Strauss’ conclusion that the Army significantly contributed to post traumatic stress disorder. There is a significant history of bi-lateral tremor, which has an organic basis, but obviously, Dr Strauss opined, the tremor has been heightened by Mr Griffiths’ psychological problems in that these underlying problems. The underlying psychiatric problems, which Mr Griffiths has had for many years, have aggravated his tremor. Dr Strauss could not say that it was the psychiatric problems, which caused the tremor. In addition to post traumatic stress disorder, Mr Griffiths has suffered from a major depression over the years related in part to his post traumatic stress disorder and army experiences but also to his constitutional make-up. On the balance of probabilities, Dr Strauss concluded, that Mr Griffiths’ employment with the Department of Defence significantly contributed to his psychiatric problems although other factors are relevant.
42. While at the time of reporting in December 2001, Mr Griffiths’ symptoms of post traumatic stress disorder and major depression were reasonably controlled, he still suffers from significant symptoms, Dr Strauss opined. Dr Strauss further concluded that Mr Griffiths is totally and permanently incapacitated for work and that he has a permanent impairment. There was a worsening, Dr Strauss believed in the impairment before 1 December 1988 but he did not consider that the impairment was permanent before that date. Considering Table 5.1 of the Guide, Dr Strauss concluded that the current level of impairment for post traumatic stress disorder is ten per cent. In relation to activities of daily living, Dr Strauss opined that he is capable of all of the categories but he has reactions to stresses of daily living with minor loss of personal or social efficiency and minor distortions of thinking. The condition probably became permanent in the mid 1990s and it may have been that on 1 December 1988, the level of impairment was five per cent. Dr Strauss further opined in his initial report that his current impairment is different to the impairment he had on 1 December 1988.
43. In his second report, Dr Strauss concluded that taking all factors into consideration, he still believed that Mr Griffiths’ tremor was organically based and related to problems other than his post traumatic stress disorder, although he accepted that the anxiety associated with post traumatic stress disorder heightened the tremor. It could not be argued that Mr Griffiths’ tremor was purely as a result of brain changes that have taken place as a consequence of post traumatic stress disorder. He noted that the relationship between organic brain changes and post traumatic stress disorder is a tenuous one, although there appears to be some evidence to support the association. The severe tremor is not a usual feature of post traumatic stress disorder, Dr Strauss further opined.
44. From the information provided to Dr Strauss concerning Mr Griffiths being examined by a psychiatrist, Dr Grady, on 24 March 1972, it appeared to Dr Strauss that Mr Griffiths not only had significant symptoms of anxiety in 1972 but also tremulousness and this would suggest that he may well had a permanent condition well before December 1988. Accordingly, Dr Strauss changed his initial view and opined that Mr Griffiths may have had a permanent psychiatric condition well before 1 December 1988 and that there may have been permanent ongoing psychiatric problems from the 1970s.
45. At Hearing, Dr Strauss noted that Mr Griffiths’ psychiatric condition is multi-factorial and assessment about this man is complex. This is not just a psychiatric case but a neurological case with Mr Griffiths having problems for most of his life, Dr Strauss opined, in a developmental sense (Transcript, 15 April 2003, p35). Dr Strauss opined that Mr Griffiths has post traumatic stress disorder, which had its onset in the Army though he could not be absolutely sure when. Certainly by the 1990s, Mr Griffiths had post traumatic stress disorder because he consulted a medical practitioner who diagnosed the condition. In the 1970s, when Mr Griffiths was diagnosed with an anxiety neurosis, it is possible that he may have been diagnosed with a post traumatic stress disorder had that condition been so labelled at that time. It is impossible, however, to make a diagnosis of a condition before the condition was ever diagnostically in existence. In the Army, Mr Griffiths had symptoms of depression, flashbacks, nightmares and insomnia. It is not surprising that Mr Griffiths gave evidence that he experienced those symptoms in the 1970s and 1980s, but they had increased and worsened during the 1990s. The process of increased symptomatology and worsening including the tremors, was an ongoing process, Dr Strauss noted (Transcript, 15 April 2003, p62).
46. Specifically in relation to Mr Griffiths’ tremor, Dr Strauss opined that there is no doubt that there is an interplay between the psychological and organic factors. Furthermore, Dr Strauss noted that psychiatry is often not well equipped to deal with cases on the borderline of neurology and psychiatry.
47. Dr Strauss noted that in terms of the progression of post traumatic stress disorder that he agreed with Dr Reinhardt that it is very difficult to make a retrospective diagnosis and it is even more difficult for a psychiatrist to make a retrospective quantitative assessment. Dr Strauss noted that he could not absolutely determine the cause of post traumatic stress disorder. However, there was a significant deterioration during Mr Griffiths’ time in the Army. He was hospitalised and under a lot of pressure. By the mid 1980s, Mr Griffiths had a tolerable level of symptoms but it was difficult to know whether there was any significant deterioration over those years. Taking all factors into account, there may have been a slight to mild deterioration as Mr Griffiths grew older and pressures were placed on him. Towards the end of his civilian career in nursing, for several years there would have been a much more significant deterioration. That is, everything did not happen in 1991 but in the three to five years before he ceased work that year, there would have been a significant deterioration, while Mr Griffiths did his best to try and manage his symptoms including his tremor. The psychological symptoms would have been easier to hide, Dr Strauss opined. By 1991, Mr Griffiths’ situation had become moderately severe, Dr Strauss opined and this is when Mr Griffiths described depression and by that time the diagnosis of a major depression became significant although this was difficult to state categorically. Dr Strauss agreed that as at 1991, there was a significant issue for Mr Griffiths in terms of him continuing work and indeed he had to leave work. In this regard, there was build-up over a three or four year period. Furthermore, while Mr Griffiths was consulting Dr Apathy once per month, this was not considered to be active treatment, Dr Strauss opined. Dr Strauss acknowledged that the level of treatment was determined however by the geographical factors of isolation and non-availability of appropriate services, rather than the level of need.
48. At the point Mr Griffiths’ impairment reached ten per cent, Dr Strauss opined that his condition was permanent and he agreed that it was difficult to determine when that was. Dr Strauss reiterated that it was difficult to determine retrospectively at what point symptoms became a permanent impairment. The ten per cent assessment was taken in accordance with the Guide including a consideration of the definition of activities of daily living contained within the Glossary at page 7 of the Guide. Dr Strauss told the Tribunal that he sees activities of daily living in the physical sense. Dr Strauss conceded that psychological factors could impact on physical abilities. As an author himself of an assessment guide in Victoria, Dr Strauss noted that he interpreted such guides literally. As at 1 December 1988, Dr Strauss confirmed his opinion that the impairment would be five per cent. Specifically considering activities of daily living, Dr Strauss noted that he met Mr Griffiths for an hour and Mr Griffiths did not report significant periods of inability where he needed assistance. In relation to moving, Mr Griffiths did not tell Dr Strauss that he needed assistance with moving to any significant extent and similarly with feeding. In relation to sexual functioning, there was no indication to Dr Strauss that he needed assistance in that regard. Dr Strauss noted that there are so many aspects of human behaviour, which cannot be quantified because it is very difficult to obtain the baseline levels. Dr Strauss stated that psychiatry sits on the edge of medicine and close to the social sciences. Dr Strauss did not wish to suggest for a moment that Mr Griffiths does not have a significant psychiatric problem.
49. Dr Strauss concluded that Mr Griffiths was troubled by significant psychiatric problems all along the way, but he dealt with them as best he could. For a number of years, he kept busy by working but then it all got too much for him and with the changes in his workplace at West Wyalong District Hospital, he resigned. Matters became worse in 1990s because he was not able to distract himself from the upsetting symptoms, which he suffered. Dr Strauss had no doubt that in recent times as Mr Griffiths aged and things changed in his life, his symptoms worsened. While Dr Strauss acknowledged that Mr Griffiths was being treated monthly, which was more regularly than he had originally thought, it did not change his view that he did not need significant active treatment.
SUBMISSIONS
50. Mr Dawson, for the Applicant, submitted that the issues to be considered by the Tribunal are highlighted in Comcare v Maida (2002) 86 AAR 69 which at paragraph 28 dealt with submissions put by that Applicant, which Mansfield J considered to be correct:
“20.1The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.
20.2If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.
20.3A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment – that is, the development of a new impairment.”
51. Mr Dawson submitted that Dr Strauss was correct in saying that Mr Griffiths’ matter is undoubtedly complex. In this matter, there is a history of one brief period of hospitalisation in the Army, followed by a very long period with no history of medical or psychological treatment but clearly a period of almost 20 years when Mr Griffiths was able to function in the civilian workforce. Mr Dawson contended that Mr Griffiths was able to function at a reasonably high level in that he not only returned to nursing at West Wyalong District Hospital but to surgical nursing in the theatres three days per week and was also a supervisor of nursing at the time he left employment. Mr Dawson submitted that there is no evidence before the Tribunal to suggest that Mr Griffiths was not able to carry out his function in any way other than a competent fashion. While there may be symptoms of post traumatic stress disorder as Dr Strauss indicated, some of them appeared on and off. It is Mr Dawson’s submission that Dr Strauss and Dr Reinhardt agreed that one cannot diagnose retrospectively and that it is difficult to put all of the symptoms together. Clearly, Mr Dawson submitted, Mr Griffiths had some good times and bad times but nevertheless, he was able to function in society and in the workforce.
52. Referring to the decision in Department of Defence v West (1998) 85 FCR 491, Mr Dawson contended that it is not simply in Mr Griffiths’ circumstances, like considering a bad back that degenerates over time. There must be a significant worsening of some symptoms such that it could be considered to be a significant worsening and not just a gradual worsening over time. Most importantly, Mr Dawson pointed to the development of the very debilitating, disassociative symptoms as noted by Dr Reinhardt. Such symptoms indicate, Mr Dawson submitted, the patho-physiological change in Mr Griffiths’ post traumatic stress disorder. Mr Dawson submitted that the Respondent’s case from Dr Strauss’ evidence is that Mr Griffiths may have had a psychiatric condition well before 1 December 1988 and that is the best that it could be put. Dr Strauss indicated that there were periods of depression on and off, but stated that the depression does not normally continue and that also there had been some early anxiety with this later being considered as a symptom of post traumatic stress disorder. Mr Dawson submitted that Dr Strauss had acknowledged that some of what he said was speculative. Dr Strauss agreed that post traumatic stress disorder is now chronic and permanent but that one cannot say that that was so prior to 1988. Mr Dawson contended that there would have to be an establishment of impairment with some degree of permanency that was worsening well prior to the period caught by the legislation. Applying what was stated in Comcare Australia v Maida (supra), the Applicant’s contention is that there is a change in the patho-physiological condition as noted in Dr Reinhardt’s report post 1988. If the Tribunal found that there is worsening of an impairment rather than the worsening of symptoms, then the contention is that the worsening was so severe that it is not just a change in quantity but in the qualitative changes from the anxiety condition in 1972 and depression or depressive type illness which Mr Griffiths may have experienced on and off during the period until a diagnosis of post traumatic stress disorder could be made at a much later time.
53. Considering the activities of the daily living, Mr Dawson referred the Tribunal to the decisions Re Emery and Comcare (1992) 15 AAR 477 and in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147. In the Federal Court decision in that matter, Spender J noted that the Tribunal was correct in rejecting a narrow “all or nothing” definition of activities of daily living which are not to be limited to the basic mechanics of any bodily function. Due weight must also be given to the psychosocial aspect of an activity. Furthermore, Spender J noted that the Tribunal had not erred in finding that the Respondent, Mr Emery, required supervision and direction in order to maintain continuing good health. The Court held that there was evidence before the Tribunal to permit it to conclude that that was need for some supervision and direction in activities of daily living. Mr Dawson also drew from the Federal Court decision in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (supra) that the term “activities of daily living" is not limited to the basic mechanics of an activity but that due weight must be given to the psychosocial aspect of function. Dr Strauss was of the view that the application of a consideration in terms of activities of daily living is purely mechanical and that if the Applicant could move from point A to point B, then the Applicant was capable of moving. The Federal Court rejected that approach in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (supra), Mr Dawson submitted.
54. Mr Dawson referred the Tribunal to Dr Reinhardt’s evidence, where she noted that Mr Griffiths can function for about one and a half hours in the morning and then needs to sleep and rest and has a similar difficulty in the afternoon. Furthermore, Dr Reinhardt noted Mr Griffiths’ marked disturbances in thinking, dissassociating and definite disturbance in behaviour such as panic attacks and avoidance of crowds. Mr Griffiths has, as Dr Reinhardt noted, difficulty in receiving and responding to incoming stimuli and her approach in concluding that there is a need for supervision and assistance in activities of daily living is the correct approach in law, Mr Dawson contended. While Dr Strauss was clearly trying very hard to apply the Guide in the manner which he believed correct, it was incorrect for Dr Strauss to conclude that the Applicant sat in the Tribunal, heard the questions and answered them without difficulty. That simply did not take into account the psychosocial aspects of Mr Griffiths’ circumstances and his response to incoming stimuli. The Tribunal is entitled and should take into account the psychosocial aspects of moving, of standing and the other activities of daily living, Mr Dawson submitted. Mr Griffiths cannot go to shopping centres alone, he cannot travel alone nor can he stay alone or for example, reach his barrister’s chambers without assistance and supervision.
55. In relation to Dr Apathy’s evidence about Mr Griffiths’ capabilities in feeding, Mr Dawson further submitted that it was not correct to say, as Dr Strauss did, that the tremor is controlled by the spinal implant because Mr Griffiths’ evidence and his own display was that the tremor was controlled as long as Mr Griffiths does not attempt to do anything. Mr Dawson noted Dr Lynch’s description of the tremor as an “intentional tremor”.. This was demonstrated when Mr Griffiths reached out to pick up a glass of water and it was clearly evident that there was significant tremor even allowing for the assistance afforded by the spinal implant. Furthermore, Mr Dawson submitted that there is evidence as noted by Dr Reinhardt of bladder control difficulties and sexual dysfunction. It is simply not recognising the true situation for Dr Strauss to state that Mr Griffiths did not have a problem with sexual function because he did not have a sex life. Mr Dawson contended that the Tribunal is entitled to take into consideration any need for assistance that Mr Griffiths requires for sexual function, such as medication. Mr Dawson concluded that in relation to the level of impairment, the Tribunal should accept the impairment rating of 25 per cent as opined by Dr Reinhardt in her application of Table 5.1 of the Guide.
56. Mr Dawson further contended that the Respondent’s submission was confused in that it had intertwined a whole range of labels, such as “impairment”, “symptoms”, “injury” and “disorder”, which attracted different legal definitions. Mr Dawson referred the Tribunal to the determination letter (T13), which determined that there was a date of injury in March 1972. An injury is defined in the Act to mean a disease, an injury other than a disease being a physical or mental injury which arises out of or in the course of an employee’s employment or is an aggravation of a physical or a mental injury other than a disease. “Disease” means any ailment, Mr Dawson noted, suffered by an employee or the aggravation and the disease so far as an ailment is concerned, in Mr Dawson’s submission, is probably the label closest to disorder. The determination letter noted that Mr Griffiths suffered a mental injury in 1972. There is no medical evidence, Mr Dawson submitted, to support the Respondent’s submission that the cluster of symptoms equalled anything other than a mental injury.
57. Mr Griffiths’ claim now relates however to a disease and the disease is post traumatic stress disorder. It is incorrect for the Respondent to assert that the Applicant must re-engineer his claim. What has occurred in Mr Griffiths’ circumstances is that there have been cognitive changes and cognitive deterioration similar to what occurs when a back deteriorates to the point where the condition impinges upon nerve roots and causes other symptoms such as sciatica presenting a clear qualitative change.
58. Mr Dawson noted the Respondent’s submission that the worsening of Mr Griffiths’ condition was not necessarily progressive in an equal way but had peaks and troughs. That did not equate, Mr Dawson submitted, to a gradual worsening. Furthermore, Mr Dawson submitted that there was no requirement for the Applicant to establish that there was one particular event, which might have lead to worsening. It is clear on all of the evidence from the medical and psychological experts, that there is a point when Mr Griffiths acknowledges that his symptoms were so bad that he was unable to continue working. Whether that point is a time in which it could be said that the disorder exists, no one was prepared to say. The best that Dr Strauss could say was that he may have had a permanent psychiatric condition.
59. Mr Dawson pointed to the evidence from both Dr Strauss and Dr Reinhardt, which acknowledged that Mr Griffiths’ tremor was aggravated by anxiety. Dr Reinhardt and Dr Apathy concluded that there is a clear patho-physiological change leading to that and this evidence was not challenged, Mr Dawson contended. The Tribunal should be satisfied, Mr Dawson submitted, that Mr Griffiths is in a position where he is entitled to be assessed in accordance with the assessment made by his treating psychiatrist Dr Reinhardt..
60. Mr Johnson for the Respondent submitted that this is a matter for the Tribunal’s decision of a reviewable decision by the Respondent as to whether or not there is a liability to pay compensation for permanent impairment resulting from the accepted injury which determined on 26 May 1998 that Mr Griffiths has a post traumatic stress disorder due to military service and that the date of the injury was 27 March 1972 (T13). Because of the transition provisions in the Act, the Tribunal must determine whether the permanent impairment was present as at 1 December 1988 or whether some part of it was not and in any event whether there may have been some further fresh impairment after 1 December 1988 which was capable of satisfying permanent impairment compensation under section 24 of the Act. Mr Johnson noted that Mr Dawson conceded that there could not be liability under the Act or the 1971 Act if the permanent impairment was one that arose prior to 1 December 1988. If it turned out that Mr Griffiths’ permanent impairment did not result from the injury for which liability had been admitted, but resulted in something else then the Tribunal would have to determine in favour of the Respondent. The Applicant would only be successful if his injury of 1972 could be said to have resulted in a permanent impairment or that there was some crossing of the threshold after 1988 whereby some new impairment could be found which amounted to more than ten per cent whole person impairment under the Guide.
61. In relation to Comcare v Maida (supra), Mansfield J referred to the decision in Department of Defence v West (supra) where Merkel J (with whom O’Connor J agreed) said:
“However, in reaching my conclusion, I do not disagree with the conclusion in Blackman that gradual worsening does not result in a series of separate or further impairments. Inevitably, questions of fact and degree are involved in making a qualitative assessment as to whether, in a particular case, the permanent impairment existing as at 1 December 1988 has deteriorated to an extent that is properly to be characterised as a further or different impairment to that which existed at the commencement date.”
Mansfield J also considered Re Blackman and Australian Telecommunications Corporation (1990) 19 ALD 781.
62. Mr Johnson submitted that what had to be determined is the distinction between an existing permanent impairment which is simply becoming worse and therefore more debilitating or whether there is a new and qualitatively different permanent impairment. Mr Johnson noted that Merkel J noted this in Department of Defence vWest (supra) and agreed with Burchett J in Brennan v Comcare (1994) 50 FCR 555 where his Honour stated that a worker who has suffered a slight loss of use of the right leg before the commencing day of legislation but afterwards lost its use entirely, is entitled to treat the further loss of the use of the leg as a further impairment occurring after the commencing date. Merkel J further noted in Department of Defence v West (supra) that a loss of entitlement under sections 24 and 25 by reason of subsection 124 (3) of the Act, only occurs when the permanent impairment, the subject of the claim, is the permanent impairment that the employee suffered as at 1 December 1988. Where there was a change in a permanent impairment occurring after the commencement date, such that it was qualitatively and quantitatively different, it would be properly characterised as a further or new impairment occurring after the commencing date and would be compensable by lump sum payment under sections 24 and 25 of the Act.
63. In Mr Griffiths' case, Mr Johnson submitted that there was no discernible or measurable underlying pathological change, which could be described as a significant worsening of Mr Griffiths’ symptoms so as to constitute a new impairment under the Act. Mr Johnson reiterated that the fact that impairment becomes increasingly more debilitating and more incapacitating, does not necessarily mean that there is a new impairment. Mr Johnson submitted that there is no patho-physiological change in Mr Griffiths' circumstances. All that one could conclude from Mr Griffiths' history is that he has had a cluster of symptoms, which have caused him to be diagnosed as having a condition. In this regard, Mr Johnson noted that Mr Griffiths has insomnia, he has had depression, anxiety, nightmares, flashbacks, confusion, tremors and has a tendency to be withdrawn. There is no doubting that Mr Griffiths experiences these symptoms and Mr Johnson submitted that the Respondent accepts Mr Griffiths as a witness of truth. All of those above-mentioned symptoms have been present to a degree and in combination sufficiently for him to be hospitalised when he was in the Army. Nothing turns upon the failure of anyone to actually use the label post traumatic stress disorder because that diagnostic label came about much later in time. Dr White who examined Mr Griffiths in 1997 noted that at that time Mr Griffiths sleep was restless and he was having nightmares from his military service which had been present for 20 years. He also experienced nightmares from events from his work as a civilian nurse (T5, p32).
64. Furthermore, Mr Johnson noted that Mr Griffiths did not return to his pre injury duties, which he undertook while in the Army. While working at West Wyalong, he was not dealing with medical evacuations or extreme trauma. Dr White had noted that in 1997, Mr Griffiths' mood was persistently unhappy, he had limited enjoyment of life, no social life and no close friends. Furthermore, Mr Johnson contended that there was no one event, which caused Mr Griffiths' condition to worsen.
65. It appears from the Applicant’s Statement of Facts and Contentions that the Applicant is indicating that there was a significant change in 1991 when Mr Griffiths gave up his employment as a nurse at West Wyalong Hospital. Mr Johnson reminded the Tribunal that Mr Griffiths’ evidence was that there was a change in 1996 and Dr Apathy seems to indicate a deterioration between 1996 and 1998. As Dr Strauss had explained, it is highly unlikely that Mr Griffiths simply found on a particular day in 1991, that he was unable to work. The more likely scenario is that Mr Griffiths was experiencing difficulties for quite some time without recognising it, Mr Johnson submitted. Mr Griffiths was not dismissed from his employment at the hospital but withdraw himself from that environment for a number of reasons. It may well have been that Mr Griffiths had an incapacity for that type of work for some years although he was actually doing it. Mr Johnson noted that Mr Griffiths was the supervisor, he was not pushed and even when he left, his evidence was that he was urged to stay on because he had valuable skills to contribute. All the evidence points to Mr Griffiths having a worsening such as considered in the analogy of back pain without sciatica. This is a case of there being a condition, however diagnosed, which was in place from the early 1970's that produced over the years symptoms which have been identified and which have worsened.. The worsening may not necessarily have occurred along a steady gradient and there may have been peaks and troughs from time to time, but it is the same impairment becoming worse. Mr Johnson submitted that the Tribunal could not be satisfied that anything happened after 1 December 1988 to constitute a fresh permanent impairment. In so submitting, the Respondent relies on the decisions Comcare v Maida (supra), Department of Defence v West (supra), Re Blackman and Australian Telecommunications Corporation (supra) and Brennan v Comcare (supra), which should lead the Tribunal to conclude that the decision under review should be affirmed.
66. In the alternate submission if the Tribunal determined that there was a permanent impairment after 1 December 1988, then considering the assessments, this requires consideration of activities of daily living and the application of Table 5.1 of the Guide. Dr Strauss had opined that as a matter of probability, Mr Griffiths had impairment in 1988 of five per cent from Table 5.1. Dr Apathy held the same opinion.
67. Dr Reinhardt did not accept a permanent impairment at 1 December 1988. Dr Reinhardt first examined Mr Griffiths in 1998. As Dr White noted in 1997, the symptoms indicative of post traumatic stress disorder had been present for 20 years. For Mr Griffiths to succeed, assuming he had a five per cent impairment as of 1 December 1988, Mr Johnson submitted that Mr Griffiths would need to show not just a new impairment, which in Mr Johnson's principal submission he does not have, but would, under the definition of activities of daily living, need to show the need for supervision and direction in those activities.
68. Mr Johnson contended that Mr Griffiths is able to perform activities of daily living and he rejected the Applicant's submission that seeing a psychologist and psychiatrist every month, satisfies the requirement of needing supervision. One must consider the Guide as a whole and in this regard, Mr Johnson referred the Tribunal to the Guide, page 3, where it notes that activities of daily living are used to assess impairment and should not be confused with lifestyle effects, which are used to assess non-economic loss. Furthermore, the activities of daily living are a measure of primary biological and psychosocial functions, such as standing, moving, feeding and self-care.
69. Mr Johnson noted Mr Griffiths' evidence that he can undertake activities of daily living without assistance. It does not follow from the fact that he has reactions to stresses of daily living, that one also concludes some inability to perform activities of daily living without supervision, assistance or direction. Supervision and direction have a higher requirement than supervision or assistance. Dr Reinhardt confuses the difference between supervision and direction, Mr Johnson submitted. In her report dated 3 April 2003 (Exhibit A3, p2) Dr Reinhardt noted that Mr Griffiths requires supervision and direction but what is required is not specified. Mr Johnson noted that Mr Griffiths has been provided with a carer who has subsequently become his wife. It is a leap, however to conclude from that, that Mr Griffiths has a need for supervision and direction in activities of daily living. The carer may ease his restrictions but that is as high as it could be put, Mr Johnson submitted. Noting Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (supra), Mr Johnson did not disagree that the reasoning in this decision applies to Mr Griffith’s circumstances. That did not, however, mean that the facts of Mr Griffiths' case allowed there to be a conclusion that Mr Griffiths needed supervision and assistance in activities of daily living. Mr Johnson's principal contention is that one can have an impairment as defined in the Act without it being measurable under the Guide and it can grow over time and worsen, becoming debilitating but that does not mean that there is a new impairment.
70. In relation to the issue of sexual dysfunction, Mr Johnson submitted that there is no clear evidence as to the cause. There is no need for supervision or direction in relation to sexual function, Mr Johnson concluded. In relation to the appearance of disassociation, with Mr Griffiths becoming more confused, Mr Johnson submitted that Mr Griffiths had had flashbacks, pre-occupation, confusion before and that these have simply worsened over the years.
FINDINGS
71. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law. Mr Griffiths provided evidence to the best of his ability and the Tribunal considers him to be a witness of truth.
72. Mr Griffiths, by a determination of 26 May 1998 had post traumatic stress disorder accepted as a condition which was contributed to by military service with the date of injury being determined to be 27 March 1972, the date when Mr Griffiths first received treatment (T13). From the evidence available to the Tribunal, it is found that Mr Griffiths had an acute occurrence of a psychiatric condition, which in medical terms has become know as post traumatic stress disorder - a diagnosis which had its inception, as the Tribunal understands it, in 1980s. Mr Griffiths was working in the Army, serving in the Medical Core nursing seriously wounded soldiers who had been evacuated from Vietnam. Mr Griffiths himself was hospitalised with anxiety at Concord Repatriation Medical Hospital. He was released but did not return to his nursing and of evacuation of the injured servicemen, but rather worked in specialist clinics only.
73. The Tribunal finds that Mr Griffiths had a slight tremor during the Army but he was passed fit and able to work in the surgical theatres. The Tribunal, like the medical experts including Dr Strauss and Dr Reinhardt, is not sure of the causation of the tremor but consider that it has been contributed to by Mr Griffiths post traumatic stress disorder. Furthermore, there is agreement amongst the experts and the Tribunal so finds that the tremor has worsened since Mr Griffiths' service in the Army. There is also agreement that Mr Griffiths' post traumatic stress disorder has worsened. It is how this worsening is characterised for the purposes of the Act that is at issue in that matter and also when did the condition of post traumatic stress disorder become permanent.
74. Dr Strauss' view, as held by Dr Reinhardt, is that it is very difficult if not impossible to determine retrospectively when Mr Griffiths could be considered to have the condition of post traumatic stress disorder diagnosed and when the condition became permanent. Both Dr Strauss and Dr Apathy believe that it was possible that Mr Griffiths had a permanent condition however diagnosed, before 1 December 1988 and that before that time, it was a five per cent impairment as assessed from Table 5.1 of the Guide. Dr Apathy then decided that the appropriate rating became 20 per cent and Dr Reinhardt concluded that the condition should be rated currently at 25 per cent from Table 5.1. Dr Strauss is of the view that after 1 December 1988, at some point either in 1991 or perhaps later, the rating was 10 per cent from Table 5.1. Dr Reinhardt's view was that Mr Griffiths was likely to have had symptoms since the 1970s and prior to 1 December 1988, he had an impairment (Transcript, 15 April 2003, p14) that progressed, yet still allowed him to function in most areas of his civilian life including both socially and occupationally. It is Dr Reinhardt's view that Mr Griffiths had an acute psychiatric episode in the Army and was hospitalised during that period of instability.. He then functioned well after Army service in civilian life as a nurse in the surgical theatre dealing once more with emergency and accident victims. Mr Griffiths was able to continue in this work until 1991 when he came to the conclusion that he was unable to cope any more because of his poor mental health and the tremor. The Tribunal accepts Mr Griffiths’ evidence that by 1991, he was unable to concentrate, was suffering tiredness because of his poor sleeping habits, nightmares and because of his tremor, could not perform to the requisite level his supervisory nursing duties. The Tribunal does not agree that working in West Wyalong Hospital in the Emergency and Surgery Wards was any less stressful than in the Army. As Dr Apathy pointed out, Mr Griffiths could have left the West Wyalong Hospital nursing situation if it became too stressful, unlike in the Army, but he did not do so until 1991.
75. Given the evidence, the Tribunal finds that Mr Griffiths had a psychiatric condition more likely than not to be post traumatic stress disorder with an impairment of 5 per cent from Table 5.1 of the Guide before 1 December 1988 but considers that there was a significant worsening of his condition beyond the natural progression of post traumatic stress disorder, particularly by 1991, when he decided that he could no longer perform his duties adequately. The Tribunal accepts Dr Reinhardt's evidence that there was qualitative and quantitative worsening within a short period up to 1991 and his decision to leave. On the facts of this case, the Tribunal further finds that Mr Griffiths was experiencing dissassociative episodes and this impacted on his ability to work and conduct his life generally. The Tribunal is also of the view that the lead up to Mr Griffiths’ cessation of work did not occur over a four or five year or longer period as opined by Dr Strauss, but was more likely, given the evidence from Mr Griffiths, Dr Apathy and Dr Reinhardt, to have occurred more rapidly and within a period, as opined by Dr Apathy, of one or two years. Furthermore, the Tribunal concludes that there may well have been a further significant worsening beyond that which would be expected for the natural progression of post traumatic stress disorder, occurring after 1996.
76. The Tribunal notes that since 1998, there have been five in-patient admissions to hospital and that Mr Griffiths is continuing to require ongoing counselling and consultation on a monthly basis with Dr Apathy and three monthly with Dr Reinhardt. The Tribunal also accepts evidence that if Mr Griffiths was geographically closer to either Dr Apathy or Dr Reinhardt, then there would be a more frequent consultation program organised.
77. The Tribunal also notes that in relation to the tremor on Mr Griffiths’ right side particular his right upper limbs, that this became so severe as to require surgery. The tremor on the left-hand side is now significantly worsening and further surgical or other procedures are being considered. The Tribunal also notes that whilst surgery in large measure assisted the right-sided upper limb tremor, Mr Griffiths still suffers from an intentional tremor as was evident at hearing.
78. The Tribunal finds that on the facts of this case, there is not an indication of a gradual worsening as was discussed in Department of Defence v West (supra). The degree of the permanent impairment was significantly qualitatively and quantitatively worse in 1991 when Mr Griffiths gave up work and certainly by 1998 the symptoms of dissassociation and tremor became so significant as to require hospitalisation and surgery. As Mansfield J noted in Comcare v Maida (supra), at paragraph 38:
"A significant deterioration in the degree of permanent impairment from an injury may indicate that a discernible or measurable underlying pathological change has occurred...I have concluded that it then erred in failing to determine whether there had in fact been a qualitative change in the patho-physiological condition underlying his schizophrenia, and in regarding a change in the degree of his permanent impairment as itself constituting a new permanent impairment under the SRC Act."
Furthermore, in Department of Defence v West (supra) Merkel J noted:
"...In my view the nature and extent of the loss of use or malfunction is critical to determining whether an impairment has changed to such an extent that it is a further or new impairment. His Honour's conclusion [Heerey J] must treat a slight loss of use of a limb which progresses to a total loss of use as the same permanent impairment. For the reasons set out above I do not accept that this is so.
However, in reaching my conclusion, I do not disagree with the conclusion in Blackman that gradual worsening does not result in a series of separate or further impairments. Inevitably, questions of fact and degree are involved in making a qualitative assessment as to whether, in a particular case, the permanent impairment existing as of 1 December 1988 has deteriorated to an extent that it is properly to be characterised as a further or different impairment to that which existed at the commencement date. When that question is answered in the affirmative an entitlement to lump sum compensation arises under ss 24 and 25 which is not precluded by s 124(3)."
79. The Tribunal concludes that Mr Griffiths’ impairment was permanent as at 1 December 1988, but it became qualitatively and quantitatively different and worsened resulting in physio-pathological changes by 1991 when he left his employment as a nurse at West Wyalong Hospital. Certainly there were significant qualitative and quantitative changes by 1998. It is therefore the Tribunal’s finding that on all of the material, because Mr Griffiths’ condition of post traumatic stress disorder had significantly worsened in a qualitative and quantitative sense by 1991, that he is accordingly not precluded by subsection 124(3) of the Act from assessment of entitlement under section 24 of the Act and it is possible to assess his permanent impairment under section 24 of the Act.
80. What then is the level of Mr Griffiths' permanent impairment? Considering Table 5.1 of the Guide, the Tribunal must, in making an assessment from that table make some findings in relation to activities of daily living. The Tribunal notes from the "Glossary" to the Guide, that the term “activities of daily living” is defined as activities which an individual must perform to function in a non-specific environment, that is to live. The measure of activities of daily living is noted to be a measure of primary biological and psychosocial function. These are:
· Ability to receive and respond to incoming stimuli;
· Standing;
· Moving;
· Feeding (includes eating but not the preparation of food);
· Control of bladder and bowel;
· Self care (bathing, dressing); and
· Sexual function.
81. Dr Strauss has assessed Mr Griffith as having a 10 per cent permanent impairment from 1991 under Table 5.1 of the Guide. This impairment requires no supervision or assistance in activities of daily living but the presence of more than one of the following categories, namely:
· "reactions to stressors of daily living with minor loss of personal or social efficiency;
· lack of conscience directed behaviour without harm to community or self;
· minor distortions of thinking"
82. Dr Reinhardt, Mr Griffiths’ treating psychiatrist since 1998, assesses Mr Griffith as having a 25 per cent impairment, which requires the need for some supervision and direction in activities of daily living in addition to satisfying all of the following categories:
· “reactions to stressors of daily living which cause modification of daily patterns;
· marked disturbances in thinking;
· definite disturbance in behaviour."
83. The Tribunal has considered the description in the Glossary of the Guide concerning activities of daily living and considers, as has been discussed in the case law that when applying activities of daily living to a psychiatric condition, special care must be taken to recognise the impact and consequences of a psychiatric condition on a person’s capacity to perform the defined activities of daily living. As was noted in Re Emery and Comcare (supra) as approved in the Federal Court decision Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (supra) care must be taken not to take account of the purely mechanical and physical capabilities of a person when considering capacities to do with activities of daily living but ensuring that the psychosocial limitations are assessed. As is stated in the Guide under "Principles of Assessment" (p3) the measure of activities of daily living is a measure of not only primary biological but also psychosocial function.
84. Mr Griffiths has difficulty in receiving and responding to incoming stimuli as observed by Dr Reinhardt in her treatment of Mr Griffiths. Mr Griffiths experiences disassociation. He goes outside and forgets what he was going to do and sometimes where he is. While he can stand and move, because of the impact of his mental health condition, he does not at times have a realistic appreciation of where he is standing or where he is moving to. In this regard, as Dr Reinhardt noted, Mr Griffiths can walk into the path of a car or remain transfixed and lost in a field. When in a shopping centre he may experience a panic attack and move, in the objective sense, in an unrealistic and irrational manner.
85. On the Tribunal's understanding of the evidence, Mr Griffiths does need supervision and at times direction in relation to standing and moving and also requires assistance and supervision in helping him to receive and respond to incoming stimuli in a safe manner. Furthermore, because of his tremor, he does, while managing, need assistance in feeding as has been observed by Dr Apathy. Mr Griffiths has difficulty in the control of his bladder and he has sexual dysfunction. While the evidence is not clear as to whether or not there is treatment for sexual dysfunction, for example by way of medication, in all probability, as Dr Reinhardt noted that the medication for post traumatic stress disorder interferes with his sexual function. There is a need for assistance in relation to sexual dysfunction, although it is not clear to the Tribunal whether in fact any such assistance has been provided to Mr Griffiths. Thus, when considering the activities of daily living, the Tribunal is of the view that Mr Griffiths does need some supervision and direction in activities of daily living. As was noted in the Federal Court decision in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (supra), this is not an all or none situation.
86. Considering the categories required for an impairment of 25 per cent from Table 5.1 of the Guide, the Tribunal is of the view that Mr Griffiths’ reaction to stressors of daily living causes modification of his daily living patterns. In this regard, the Tribunal notes that Mr Griffiths is able to function for one and a half hours in the morning and than must rest and in the afternoon he can further undertake another one and half hours of activity but then requires rest. This is a considerable modification of daily living patterns. Furthermore, Mr Griffiths isolates himself on the farm. If he goes shopping, which is rare, he must be accompanied, because not to do so involves him frequently experiencing panic attacks. Because of Mr Griffiths’ difficulty in receiving and responding to incoming stimuli, he needs to be accompanied in case he may either become lost or unaware of what he was attempting to do. In this regard, the Tribunal notes the example Dr Reinhardt gave of Mr Griffiths running out into the path of a car or going into a field on his farm and remaining transfixed. Mr Griffiths also has marked disturbances in his thinking as noted by his having flashbacks, his dissassociative thoughts, his confusion and lack of concentration combined with nightmares and poor sleep habits. Furthermore, in relation to disturbances of behaviour, the Tribunal has already noted some of these and relies also on the evidence provided by Dr Strauss, Dr Apathy and Dr Reinhardt in relation to the disturbances in behaviour.
87. Accordingly, the Tribunal agrees with the assessment provided by Dr Reinhardt but confirmed by all of the evidence, particularly that provided by Mr Griffiths. Dr Strauss's opinion, while professionally provided, does not reflect the severity of the condition as evidenced by all of the material available to the Tribunal.
88. Accordingly, for all of the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, the Tribunal decides:
(i) Mr Griffiths is entitled to compensation pursuant to section 24 of the Act with an impairment of 25 per cent from Table 5.1 of the Guide;
(ii) Mr Griffiths is entitled to compensation pursuant to section 27 of the Act;
(iii) The Respondent is liable to pay Mr Griffiths’ reasonable legal costs as agreed and in accordance with the Administrative Appeals Tribunal Practice Direction.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr PD Lynch, Member
Signed: .......................................................................................
AssociateDates of Hearing 14 and 15 April 2003
Date of Decision 30 June 2003
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant Mr G Isolani, KCI Lawyers
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Mr Tim Ainsworth, Phillips Fox Lawyers
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