Griffiths and Military Rehabilitation and Compensation Commission

[2008] AATA 94

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 94

ADMINISTRATIVE APPEALS TRIBUNAL      )          N° V 200500569

)          N° V 200600435

VETERANS’       APPEALS       DIVISION		)
Re		GRAEME EDWARD GRIFFITHS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Dr R. McRae, Member

Date6 February 2008

PlaceMelbourne

Decision The Tribunal sets aside the decisions under review and in substitution decides that the Respondent is not liable to pay compensation to the Applicant for permanent impairment under ss 24 or 27 of the Safety, Rehabilitation and Compensation Act 1988 in respect of tic disorder or irritable bowel syndrome. 

(sgd) R. McRae

Member

MILITARY COMPENSATION ‑ naval collision ‑ HMAS Melbourne ‑ sexual assault - post traumatic stress disorder – tic disorder – irritable bowel syndrome ‑ onset of injury - transitional arrangements - degree of impairment - whether a new injury - concurrent workers’ compensation claim involving stress

Administrative Appeals Tribunal Act 1975 s 37

Commonwealth Employees’ Compensation Act 1930

Compensation (Commonwealth Government Employees) Act 1971 ss 39, 40, 41, 42

Safety, Rehabilitation and Compensation Act 1988 ss 24, 27, 62(3)(b), 124(2), 124(3)

Australian Postal Corporation v Bessey [2001] FCA 266

Comcare v Levett (1995) 60 FCR 14

Comcare v Maida [2002] FCA 1282

Comcare v Mathieson (2004) 79 ALD 518

Department of Defence v West (1998) 85 FCR 491

REASONS FOR DECISION

6 February 2008 Dr R. McRae, Member       

1.      Mr Graeme Griffiths (the Applicant) receives a weekly compensation payment from the Military Rehabilitation and Compensation Commission (MRCC) for 15 per cent combined whole person impairment as a result of decisions made by Comcare and the Department of Veterans’ Affairs (DVA).  This consists of a 10 per cent whole person impairment for generalised tic disorder (tic disorder) and a 5 per cent whole person impairment for irritable bowel syndrome (IBS).  The Respondent accepted these conditions as arising from his service-related post traumatic stress disorder (PTSD).  The Applicant also received a lump sum compensation payment in 2004 for a worker’s compensation claim against Safeway, a former employer.  The Applicant seeks a review of the level at which his compensation payments are made.

2. In application N° V 200500569 the Applicant is seeking compensation under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act), for permanent impairment for tic disorder in excess of the 10 per cent previously determined. In application N° V 200600435 the Applicant is seeking compensation under ss 24 and 27 of the 1988 Act, for permanent impairment for IBS in excess of the 5 per cent previously determined. Specifically, he is seeking an alteration of his current 15 per cent whole person impairment to the order of 40 per cent to 50 per cent.

3. The issue for the Tribunal is whether the Applicant is entitled to compensation by the MRCC under the 1988 Act for tic disorder and for IBS; and if so, the level at which such compensation should be provided. The Tribunal’s decision is that the Respondent is not liable to pay to the Applicant compensation payments under ss 24 and 27 of the 1988 Act.

4. The Applicant was represented by his friend and accountant, Mr T. Loh. The Respondent was represented by Mr A. Moulds of counsel, instructed by the Australian Government Solicitor. The Tribunal had before it documents lodged by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).

5.      The Tribunal received additional documents tendered into evidence by the Applicant:

·a report dated 25 September 2006 by Dr Alfred Wall, consultant gastroenterologist (Exhibit A1);

·a letter dated 18 November 2006 from Dr Wall (Exhibit A2);

·and a report dated 23 May 2006 by Dr John Lloyd, consultant neuropsychiatrist (Exhibit A3). 

6.      The Tribunal received additional documents tendered into evidence by the Respondent:

·an affidavit dated 13 November 1998 sworn by the Applicant (Exhibit R1);

·clinical notes of Dr Mathie Chandrananth, the Applicant’s treating general medical practitioner (Exhibit R2);

·a letter dated 5 July 2005 from Dr Russell Rollinson, the Applicant’s treating specialist neurologist (Exhibit R3);

·a letter dated 11 August 2005 from Professor Robert Iansek, specialist geriatric neurologist (Exhibit R4);

·a video recording of the Applicant undertaking daily activities (Exhibit R5);

·and clinical notes of Dr Rob Peterson, the Applicant’s treating neurologist (Exhibit R6). 

BACKGROUND

7.      The Applicant is a 57 year old married man.  He lives with his second wife, daughter and son in their own home, and has received disability income support from the Military Compensation and Rehabilitation Service (MCRS) since 2000.  He is estranged from his first wife, son and daughter. 

8.      The Applicant left Clayton Technical College at 16 years of age.  He enlisted in the Royal Australian Navy (RAN) on 10 July 1966 and served for 3 years and 279 days as a steward.  He was exposed to a collision between two naval vessels on 3 June 1969.  He also suffered a sexual assault on or about 29 October 1969.  On 8 November 1969 he consulted a medical officer on HMAS Melbourne and was diagnosed with an anxiety state.  From 27 to 29 January 1970 he was admitted to HMAS Cerberus Hospital.  During this period he was a witness in a court martial in respect of the sexual assault.  He was diagnosed with and treated for PTSD by Dr Bruce Cheffins.  He was readmitted to HMAS Cerberus on 2 February 1970 for clinical management of acute anxiety state.  The duration of this admission is uncertain, although the hospital records refer to a review date of 13 February 1970.  He was discharged on the medical grounds of chronic pre-psychotic anxiety state with a 15 per cent Class C invalidity.  He received a certificate stating he was honourably discharged on 14 April 1970 (T5).  He worked in various unskilled jobs, of usually less than six months duration, from 1970 to 1999, including labouring and shelf packing in supermarkets.  However, from 1981 to 1993 he retained employment as a cleaner/handyman at the Moonya Centre for the Intellectually Handicapped. 

9.      In April 1995 the Applicant made an unsuccessful Workcover claim for work-related stress in the County Court of Victoria.  Although in a concurrent time period, it was maintained separately from the Commonwealth claim.  The Workcover claim imposed considerable financial stress on the Applicant through a substantial order for costs against him.

10.     On 17 August 1995 the Applicant lodged a claim for rehabilitation and compensation for stress and anxiety consequent to sexual assault by a naval officer while he was on duty in November 1969 (T11).  On 24 April 1996 the Respondent accepted liability for anxiety, first medically treated on, and hence sustained prior to, 24 November 1969.  On 21 October 1997 that determination was amended such that the Respondent accepted liability for the Applicant’s chronic PTSD of a moderate degree, rather than anxiety.  On 1 March 2000 the Respondent further varied the determinations of 24 April 1996 and 21 October 1997, such that the Respondent accepted liability for chronic PTSD and reactive depression of a moderate degree.  On 26 July 2000, the Respondent accepted liability for erectile impotence.  On 16 November 2000 further amendments and a new determination were made extending liability to include co-morbid chronic PTSD, mild to moderate dysthymic disorder, periodic alcohol abuse, and subsequent erectile impotence.  The date of injury for the determination was 3 June 1969.  The Applicant has received compensation for a co-morbid PTSD since 7 December 2000.

11. On 21 December 2001 the Applicant applied for payment of lump sum compensation for permanent impairment based on the conditions for which liability had been accepted. On 10 July 2002 the Respondent determined that no payment could be made under the transitional provisions of s 124(3) of the 1988 Act for the accepted conditions, as the impairment became permanent on 3 June 1969, requiring assessment according to the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act).  The 1930 Act did not provide for payment of lump sum compensation for the accepted conditions. 

12.     The Applicant sought treatment from Dr Rollinson for tic disorder on 2 May 2002.  On 28 November 2002 he made a claim for compensation for permanent impairment related to the tic disorder.  On 14 May 2003 the Respondent extended liability to include generalised tic disorder. 

13.     The Applicant sought treatment for IBS on 18 February 2002.  On 12 February 2003 he made a claim for compensation for permanent impairment for IBS arising from his co-morbid chronic PTSD.  On 14 May 2003 the Respondent extended liability to include IBS. 

14.     On 19 February 2003 the Applicant made a claim for compensation for permanent impairment for erectile impotence (T76).  The claim related to the events of 1969.  The Respondent referred to its determination of 26 July 2000, and advised no further action would be taken (T77). 

15.     On 15 December 2004 the Respondent determined that the Applicant was entitled to payment of compensation for a 10 per cent whole person impairment for generalised tic disorder (tic disorder), under Table 13.1 of the first edition of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide), and 5 per cent whole person impairment under Table 8.1 for irritable bowel syndrome (IBS) (T100). This determination was based on the 7 October 2004 report of Dr David Gras, occupational physician, following an assessment on 7 September 2004 (T96, T98).  This is the reviewable decision before the Tribunal. 

16.     The Applicant requested reconsideration of that part of the 15 December 2004 determination related to the tic disorder only.  On 20 June 2005 the Respondent affirmed the 15 December 2004 decision (T105). 

17. On 9 February 2006 the Applicant requested reconsideration of that part of the 15 December 2004 determination related to his IBS. Exercising the discretion provided for in s 62(3)(b) of the 1988 Act, the Respondent extended time to 9 February 2006 for the requesting of a reconsideration. On 18 May 2006 the Respondent affirmed the 15 December 2004 decision related to IBS (T115). This application incorporates an application for review of this decision.

18. The matter before the Tribunal comprises two applications that were lodged at different times, many years after the events of 1969. The Tribunal notes that the Applicant is not represented by a lawyer and that several solicitors have managed this matter for the Respondent. On each day of the hearing, the Respondent raised the issue of s 124(3) of the 1988 Act in respect of these applications. Neither the Applicant’s nor the Respondent’s Statements of Facts and Contentions, of which there were several iterations and amendments, referred to s 124(3). To provide natural justice for the Applicant, the Tribunal expressly sought subsequent written submissions from the Applicant in response to the Respondent’s raising of the s 124(3) issue. Delays in the filing of submissions developed due to problems related to the Applicant’s advocate’s telephone and mail receipt mechanisms.

LEGISLATION

19. The sections of the 1988 Act to which reference is made are ss 24, 27, 62(3)(b), 124(2) and (3). Section 62 is of no consequence to this application. Relevantly, section 124 of the 1988 Act provides:

124. Application of Act to pre-existing injuries

…

(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:

…

(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, … being an impairment … that occurred before the commencing date, if:

…

(b)       the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

...

(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.

…

APPLICANT’S EVIDENCE

20.     Paragraph 70 of the Applicant’s Statement of Facts and Contentions states:

The Applicant’s medical conditions stemmed from the post traumatic stress disorder due to the two [1969] incidents he suffered whilst a member of the Royal Australian Navy. 

The Applicant submitted a letter dated 19 July 1996 written by Dr Edward Cole, psychiatrist, which stated the same opinion.  Dr Cole repeated this opinion in a letter dated 7 February 2000. 

21.     The Applicant stated that following the episodes in 1969, he had many naval hospital admissions.  He stated that he was:

for a long period of time in and out of hospitals.  How long, I don’t know, but there were many HMAS Cerberus, HMAS Penguin, HMAS Lonsdale hospitals.  It went on and on and on.  … And they were all for chronic PTSD, chronic problems with my anxiety and depression, and in and out of hospitals (Transcript, p25).

Under cross-examination, the Applicant agreed RAN doctors treated him from the time of the sexual assault until his discharge from the RAN.  He agreed this was constant treatment by psychiatrists and psychologists, although not entirely as an in-patient.  He agreed he received no treatment from any doctor in the Navy at all between the time of the collision and the sexual assault.  This was due to his only making complaints to his workmates about the collision. 

22.     The Applicant stated:

I was discharged on 14 April 1970, medically unfit, subsequently classified under section 51 of the DFRDB Act 1948 as 15 per cent class C.  The accepted impairment was described as chronic pre-psychiatric anxiety state which, when I left they gave me a record saying that I was honourably discharged (Transcript, p26). 

Under cross-examination, he disagreed he must have had an inkling that he was about to be honourably discharged.  He agreed he was most likely an in-patient at the time, but had no memory of the events that transpired relating to his discharge, including the personnel involved.  When asked It was clear to you, wasn’t it, that you were being discharged because of your diagnosed anxiety state?, he answered Exactly, yes.  This concurs with his completion of a Benefit Election Form (T87) dated 21 May 2003. 

23.     In evidence, the Applicant described his poor work history, primarily as a consequence of arguing with superiors and preferring to work autonomously.  He experienced mood swings, regular nightmares about and regular flashbacks to his naval service.  He was a poor family man, and consumed excessive alcohol.  He commenced experiencing tic disorder phenomena shortly after his naval service concluded, and this increases in activity in times of stress.  Similarly his IBS symptoms have been present since the conclusion of his naval service.  In his post-RAN employment, the Applicant experienced run-in[s] with the supervisor who was in charge; he had problems with those people.  The general cause of his departing an employed position was Overall I had a run in with supervisory or anybody in a supervisory role.  Under cross-examination, he confirmed that he didn’t get on with people who were telling [him] what to do, leading to employment problems in the unskilled positions he occupied.

24.     He agreed that on or about 8 December 1980 he made an initial enquiry about compensation for these conditions.  He did not proceed with any applications as the forms were very daunting.

25.     The Applicant stated he subsequently pursued compensation in 1995 as he:

was having problems when I left the military, but they got worse and worse as time went on.  … [These included being] argumentative, mood swings, fighting, disruptive at home, drinking problems I had.  … Work related as well, because I couldn’t hold down a job.  It just escalated … (Transcript, p27).

These problems also led to the breakdown of his first marriage.  Under cross-examination he agreed he was experiencing nightmares, flashbacks and re-experiencing phenomena, and it could have been at the time of his first marriage breakdown. 

26.     MCRS requested the Applicant attend a consultation with Dr Cole.  The Applicant stated:

there was a process involving compensation being approved, disapproved on many occasions.  They disallowed, then they allowed it and then they revoked it, then it was revoked - it was okay.  Then it went on from ’95 right up to 2000.  From 2000, they actually gave me a pension, but prior to that, there was nothing.  I was on Centrelink … for a short time (Transcript, p28).

Under cross-examination he agreed that MCRS sent a fraud investigator to interview him when I had problems at the Moonya Centre.  He had to see a psychiatrist [Dr Robertson, now deceased] in the late ‘80s or early ‘90s. 

20.      Under cross-examination the Applicant clarified that there had been a dispute at Moonya about a reorganisation of his duties, leading to a workers’ compensation claim that more than likely related to stress and anxiety.  He had up to two years off work and the late Dr Robertson treated him for work-related stress and anxiety at Moonya.  He was unclear if he discussed matters other than those specifically related to Moonya with Dr Robertson as records have been destroyed.  He denied knowledge that there was nothing in any of the reports to indicate that you had spoken to him about anything other than Moonya stress-related matters.  He could identify no document that could show that he had discussed anything other than Moonya matters with Dr Robertson. 

27.     The Applicant agreed that he departed Moonya about 1993, and commenced working at Safeway in 1994 as a night-shift worker.  He was accused of theft, and they wanted me out of there.  In April 1995 he made a workers’ compensation claim against Safeway, partly for lower back pain and partly for work-related stress (Exhibit R1).  He was off work for three years, receiving weekly workers’ compensation payments until February 1998.  He travelled to the Philippines with his wife during 1998. 

28.     The Applicant agreed that eventually the claim for a serious injury certificate related to the back injury failed in the County Court, with costs in the order of $10,000.00 made against him.  He was aware of this costs order against him by June 1999 and agreed that this was a source of considerable stress and anxiety.  Exhibit R1 was his affidavit dated 13 November 1998 in support of his workers’ compensation litigation.  The affidavit did not mention any experience related to PTSD associated with his naval service.  There had been approximately 12 months of negotiation between the solicitors assisting him in the matter and Workcover solicitors, to determine the costs order.  Throughout the workers’ compensation claim against Safeway, he continued to pursue his Commonwealth compensation claim.  A resolution was reached in relation to his Workcover compensation claim on 6 July 2000 in which he received a payment in respect of his resignation from Safeway in the order of $14,000.00, along with a waiver of the costs order.  He signed a deed to that effect. 

29.      The Applicant agreed that at the same time he was assisted by another legal firm to make his Commonwealth compensation claim (on 17 August 1995) for stress and anxiety in relation to being sexually assaulted while on duty with the RAN (T11).  When directed to a letter from Dr Cole dated 19 July 1996, and shown that the history contained no reference to the previous workers’ compensation claim and surrounding issues that were on foot (T19), the Applicant claimed he:

could not remember what he told Dr Cole, that doctors write what they want to write and they make mistakes.  [He was] forgetting things and not remembering things too well, and I just can’t remember at the time. 

30.     Under cross-examination the Applicant inspected T39, a letter by Dr Rose, psychiatrist, dated 14 July 2000.  The letter related to a consultation on 10 July 2000, immediately after the signing of the Workcover settlement deed on 6 July 2000.  He agreed with the contents of the letter.  He agreed that he didn’t say anything about the episode of back pain and stress and the workers’ compensation claim at Safeway, including three years off work, to Dr Rose.  He stated If he didn’t ask me, I got side-tracked or the way that questioning … more than likely I didn’t.  When it was suggested the he was deliberately keeping the workers’ compensation and Commonwealth compensation claims hidden from each other, he stated I can’t remember telling him, he never pursued that about Safeway and if he would have asked me, I would have gladly told him … .  Later in the same letter, Dr Rose wrote that at the moment [the Applicant] is very forgetful. 

31.     The Applicant explained his use of a walking stick:

Sometimes I lose my balance for some reason, and sometimes my tic disorder, I get restless leg or shaking of the legs to a degree where I need stabilisation.  [He does not carry it all the time as] I don’t like it.  [He would] use it when I have to know that I am away from home for a certain amount of time, and the possibility of something happening with my restless legs and whatever could occur.  Going to my car or whatever I use my stick; [he uses it] when I alight from my car. 

32.     The Applicant stated that he has an unrestricted driver’s licence.  He stated that although he does not know when a tremor or tic attack is going to occur, and there is nothing he can do about it when it does occur, he drives daily.  This included driving his children to separate schools, which took about 30 minutes of driving, as well as visits to friends and to a weekly auction, and shopping several times a week. 

33.     From about September 1998 to November 2002 the Applicant consulted Dr M Chandrananth, a local general practitioner at Beaconsfield, in relation to:

symptoms that I had.  Stomach problems and movements in my legs which I explained to her and my head occasionally and problems with my bowel movements and so on. 

She referred the Applicant to Dr R Rollinson, neurologist, and Dr G Shaw, specialist gastroenterologist.  The Applicant stated that in about May 2006 he was requested to attend examinations by Dr John Lloyd, specialist neuropsychiatrist and Professor Alfred Wall, specialist gastroenterologist, by the Respondent and that he did so. 

Tic Disorder

34.     The Applicant described how:

the tic disorder happens daily.  It just happens.  I don’t know it is happening until somebody tells me it is occurring.  I don’t know what brings it on.  I can’t bring it on like clockwork … my legs, arms and head shakes uncontrollably and I have to sit down and rest; I can’t do anything during that time, other than just sit down until it subsides.  It… affects me daily … my eating habits … affects me continually, all day. 

He agreed it is brought on by stressful situations.  In evidence in chief, the Applicant was asked So it would be fair to say that the tic disorder would have been developed from the post traumatic stress disorder that you still suffer?  He answered It seems to stem from the PTSD related.  Under cross-examination, when asked if the tic disorder dates back to about that time, shortly after you left your military service?, he answered with an affirmative Mmm, then Yes.  He said he can’t pinpoint when they are going to occur. 

35.     Paragraph 29 of the Applicant’s Statement of Facts and Contentions states that:

On or about 10 July 2000, the Applicant was first diagnosed with a tic disorder by Dr Norman R. Rose and the tic disorder was traced to two traumatic incidents suffered by the Applicant whilst a member of the Royal Australian Navy.

In his report dated 14 July 2000 referring to the 10 July 2000 consultation, Dr Rose reported observing a tic in the neck, but did not highlight it as a new or novel diagnosis.  The report states:

I consider that all of these conditions [co-morbid PTSD, mild to moderate Dysthymic Disorder and periodic Alcohol Abuse] are primarily due to the incidents of the 3^rd June, 1969 and aggravated by the incident of October 1969.  The depression conditions suffered in 1993 … appears to have been mainly a symptom or result of the earlier conditions.

36.     In April 2002 Dr Chandranath recorded a facial tic, query anxiety in her notes (Exhibit R2).  She also recorded a reference to PTSD.  In a letter dated 2 May 2002 (T60) Dr Russell Rollinson, treating psychiatrist, wrote of the Applicant’s history:

He tells me that this involuntary movement disorder began following his military service.  It has been present on and off since that time although there had been periods up to a number of years where it did not trouble him.  It would seem that this symptom does seem to relate and parallel his stress related problems. 

Under cross-examination the Applicant agreed this was a fair summary of the situation.  He stated that at times of stress since this military service … this tic disorder comes upon you. 

37.     In a letter dated 18 January 2006, Dr Rollinson wrote in support of the Applicant receiving a carer’s pension for the Applicant’s wife:

…he has a generalized Tic Disorder which seems intimately related to his underlying psychological problem diagnosed as Post-Traumatic Stress Disorder. 

38.     The Respondent played a videotape (Exhibit R5).  The videotape was accepted into evidence following the reasoning of Gyles J in Australian Postal Corporation v Bessey [2001] FCA 266. The Applicant agreed he was shown in the videotape. He did not disagree that it showed him on 23 November 2006 about 10:00am after dropping his child at school. It purported to demonstrate the Applicant walking without the aid of a walking stick in a purposive manner, as well as standing near a work bench in his garage. He did not disagree that it showed him on 5 December 2006 filling up his car with petrol after dropping off his child at school. He disagreed that it showed him walking briskly, but agreed that he walked without hesitation and without a stick into the service station, paid, left the service station and then got into his car in a perfectly normal way and drove off. He stated At that time I decided to leave the stick in the car and walk to the service station.  He denied having any gait problem, and stated I do walk normally.  He said he uses the stick for balance.  He agreed he attended a compulsory conference at the Tribunal’s Melbourne Registry the following day, 6 December 2006, but he denied he walked slowly with a limp and a stick.  At no time during the period covered by the videotape, which ran for five minutes comprising two separate episodes of shorter duration, was any tic disorder activity present. 

Irritable Bowel Syndrome

39.     In evidence in chief the Applicant was asked When did you actually suffer from [IBS]?  Would it be fair to say that as early as, say, after a few months after you have been discharged, in the ‘70s? He answered

It would have to be, that is -everything- everything happened after that time in the way with my general health, my - my attitude, my sleeping pattern, my bowel action.  Everything happened.  But it happened slowly … I didn’t even question it.  I just kind of lived with it for many years, and then it got worse and worse.  All areas got worse. 

Under cross-examination, when presented with the statement that his bowel [IBS] problem had been with him since his military service ceased, the Applicant stated That is correct. 

40.     In a letter dated 4 February 2002, Dr G Shaw referred to a long history of post-traumatic stress disorder.  He stated, under the heading Impression: Overall I feel that [the Applicant] probably does have an irritable bowel syndrome fuelled by stress.  On 25 July 2002 Dr Shaw wrote, after performing a normal colonoscopic examination and returning multiple normal random biopsies, that I am quite happy to label the Applicant’s bowel symptoms as that of chronic irritable bowel syndrome contributed to by underlying anxiety disorder.  On 13 November 2002 Dr Shaw wrote:

Based upon his documentation of post-traumatic stress disorder, both myself and his psychiatrist feel that his ongoing [IBS] symptoms have a basis in his previous service history. 

41.     A Compensation Claim for Permanent Impairment form, dated 20 May 2003, signed by Dr Hershel Goldman, local general practitioner, relating to a diagnosis of Irritable Bowel Syndrome, suggests that probably permenency (sic) predates [the 2002 specialist consultation] by a few years (T88). 

42.     Dr David Gras, occupational physician with Health Services Australia Ltd, assessed the Applicant on 7 September 2004.  In a report dated 7 October 2004, Dr Gras provided an assessment of permanent impairment only in those conditions accepted as arising from his Post Traumatic Stress Disorder, that is, the facial tic and the Irritable Bowel Syndrome. 

43.     Dr Alfred Wall, specialist gastroenterologist, examined the Applicant on 11 September 2006.  In a letter dated 25 September 2006, Dr Wall wrote:

The irritable bowel syndrome is a cluster of symptoms of a physical condition, which has in its genesis a substantial component of psychiatric nature, though it is a stand-alone condition, in its own right.  It is probable that the PTSD contributed to the development of the irritable bowel syndrome, because of its known relationship of emotional factors serving to trigger the underlying condition.  PTSD is typically a long-term disorder and it is this type of disorder that typically contributes to the development of irritable bowel syndrome. 

44.     On 31 August 2005, Dr Shaw wrote of the Applicant: This gentleman has ongoing symptoms of stress related irritable bowel syndrome, and that much of his anxiety has been channelled through his bowel.

Witnesses’ Evidence

45.     Dr Alfred Wall has been a consultant gastroenterologist since 1972, with expertise in IBS.  He assessed the Applicant on 11 September 2006 for about one hour and twenty minutes.  He stated he obtained a history of the Applicant’s pattern of diarrhoea which had not been provided to Dr Shaw.  Dr Wall stated he obtained a history of episodes of incontinence, day or night, of liquid material.  Using the Guide, Dr Wall stated the degree of impairment would be 15 per cent, but because of the incontinence, that extended his assessment to 20 per cent.  He did not consider that the Applicant’s condition would worsen. 

46.     Under cross-examination Dr Wall agreed that Dr Shaw, as treating gastroenterologist, would have mentioned faecal incontinence if he had obtained that history.  It is unclear if Dr Shaw asked about faecal incontinence.  Given the history Dr Shaw obtained, Dr Wall would have expected an enquiry about the Applicant’s faecal incontinence.  Dr Wall recorded that the Applicant stated that he used an incontinence pad at night.  He took this and all of the Applicant’s history on trust.  If he did not require an incontinence pad because there was no incontinence, Dr Wall’s impairment assessment would be 15 per cent, as was Dr Shaw’s assessment.  This was based on the presence of objective signs of disease being present.  He agreed the Applicant ingested codeine for pain management rather than for control of diarrhoea, but benefited from the constipatory side effect of the codeine. 

47.     Dr Wall considered that IBS is a condition that is not a disease process, but rather a disorder process.  It is a constellation of symptoms and signs.  He agreed that IBS does not manifest itself with objective signs per se, rather objective signs of disorder.  The symptoms and signs may be present with many types of abdominal disorder.  Stress is regarded as a major factor associated with IBS.  Dr Wall agreed that if someone had a long-standing psychiatric condition and complained of symptoms consistent with IBS, it would be reasonable to connect the two.  There is no necessary temporal correlation between the onset of the psychiatric condition and the IBS, or of a stressor or ongoing stress or cumulative stress and the onset of IBS.  Dr Wall agreed it would not be surprising for the IBS to appear fairly soon after the onset of a psychiatric condition.  Typically symptoms of IBS can be traced back to the time of a significant stressor.  It is also possible that other life events are predominating, so that the IBS symptoms are less noticed. 

48.     Dr Russell Rollinson gave evidence by telephone.  He is a consultant neurologist who has been managing the Applicant for five years, since May 2002.  He continues to see him occasionally.  He provided no opinion regarding the Applicant’s impairment as it is difficult to do so for an intermittent condition.  He did not recommend any medications such a tranquilliser as the Applicant was already under the care of a psychiatrist.  He found no other neurological cause for the tic disorder.  He noted the tic disorder coincided with the stress associated with his experiences in his military service and concluded it was likely secondary to that. 

49.     Under cross-examination Dr Rollinson confirmed he had excluded other potential underlying causes for the Applicant’s tic disorder, and there is a high correlation with stress.  He confirmed the contents of Exhibit R3 as being accurate in that the Applicant was seeking to obtain letters from Dr Rollinson that he has a major disability related to his tic disorder.  Dr Rollinson was unable to comply with the repeated requests.  He recommended he see Professor Robert Iansek, a movement disorder specialist and the author of Exhibit R4. 

50.     Dr Rollinson’s recollection was that every time he saw the Applicant, the movement disorder was present.  He could not recollect if he saw the Applicant drive into his rooms or walk in from his car.  He was unable to recall completing a form (T81) for MCRS.  He was unsure what to conclude from the answers he provided on the form, in particular related to Question 6 regarding employment related aspects of the condition likely to continue (he wrote No).  He agreed he wrote the movement disorder was associated with stress disorder.  He agreed that he thought the movement disorder would decrease over time.  He agreed that he considered the issue to be most likely a psychological problem though there remained the possibility of a physical cause.  He would be unable to link any physical cause with the Applicant’s naval service.  He stated it is not possible to tell whether the voluntary movements are being faked or not.  The Applicant did not appear to have any cognitive or memory problems; nor did there appear to be any peripheral neuropathy or cerebellar dysfunction with the Applicant. 

51.     Dr John Lloyd is a specialist neuropsychiatrist who examined the Applicant for 90 minutes following a request by MRCC.  Based on the history the Applicant provided plus his own examination, he assessed that up to 25 per cent of the Applicant’s time was involved with excessive movements.  There was no organic neurological condition that might deteriorate.  He considered the Applicant has a somatoform disorder. 

52.     Under cross-examination Dr Lloyd stated the Applicant’s movement disorder was fundamentally psychiatrically based.  There was no obvious physical cause for the movement disorder.  It arose from the PTSD.  He agreed he wrote in his report the condition might add up to a 20 per cent impairment using Table 13.1 of the Guide, based on the possibility of some underlying neurological disorder.  Using Table 5.1 of the Guide, he would most likely arrive at 5 per cent impairment.  Dr Lloyd did not assess the Applicant’s memory or cognitive function.  He assessed the Applicant as having a normal gait and normal heel-to-toe walking without a walking stick. 

53.     Dr Robert Peterson is a consultant psychiatrist who has been treating the Applicant since October 2004 when he transferred from Dr Hallwell, who had been treating him for some time.  He stated that, based on the Applicant’s history and his examination and on his reference to the Guide, the Applicant’s intermittent tic disorder was present 50 per cent of the time.  He stated the Applicant’s emotional components of his disorder were becoming more prominent. 

54.     Under cross-examination Dr Peterson stated he affirmed there was a history of an appropriate reaction to circumstances that produce the clinical syndrome known as PTSD.  He stated he was guided by what Dr Hallwell had found, rather than making his own examination and diagnosis de novo, and took over the running diagnosis and was treating him for his overall psychiatric condition.  He agreed that the first notes in Exhibit R6 were his entire notes for the first consultation he had with the Applicant.  He acknowledged reference to two weeks short of Gold Card and Currently involved in a legal case.  He acknowledged that there were many administrative entries in his clinical notes and a paucity of notes relating to management of any psychiatric illness.  He tended to rely on something triggering a recollection about a particular consultation, and was quite particular about noting medications being prescribed. 

55.     An example of the administration of the Applicant’s file was an entry related to the assessment by Dr Gras, and reference to the tic disorder occurring 12 times per year.  Dr Peterson acknowledged the reference to Court yesterday over the civil action.  He agreed the Applicant had called him to advise him that the 10 per cent impairment rating for the incidence and intrusion of the movement disorder was being queried.  The Applicant was seeking a support letter for Dr Rollinson with an aim of the application being to increase the percentage impairment leading to a lump sum settlement.  He agreed that he reported what the Applicant had told him about the Applicant’s daily limitations when he completed the report dated 21 February 2006.  He agreed that he had been heavily reliant on what the Applicant had told him about the impact of the condition on his daily activities. 

56.     Dr Peterson agreed his clinical notes did not record any mental status examination, enquiry about elements of PTSD or chronic pain, yet he was able to provide an impairment assessment for various tribunals based completely on what the Applicant told him.  He agreed that an issue discussed with the Applicant, during clinical discussions over the time covered by the records, was attempting to secure lump sum entitlements the Applicant considered he was entitled to from MCRS.  He was impressed at how precise the Applicant’s memory was.  He agreed his 50 per cent assessment on the Applicant’s impairment was more a broad statement that I accepted as being produced by Mr Griffiths as more or less his estimate of how often he was affected by it; rather than meaning 30 seconds each minute or 12 hours each day. 

Submissions

57. The Respondent raised the issue of s 124(3) of the 1988 Act in his closing submissions. The Applicant did not comment. Both parties filed written submissions addressing this point consequent to the Tribunal’s direction.

Applicant’s Submissions

58.     The Applicant contended, in his Statement of Facts and Contentions, that:

On or about 8 December 1980 the Applicant first made inquiry to obtain compensation for his post traumatic stress disorder with the Department of Defence, Industrial and Compensation Section.

The Applicant considers that his impairment is greater than the current 15 per cent. He relied on the evidence of Drs Lloyd and Wall that the impairment rating could be higher. The Applicant further submitted, in the written submission subsequently requested by the Tribunal, that because an application for compensation for tic disorder and IBS was not made until 2004 and no assessment had been made, it was appropriate for the Respondent to provide compensation under ss 24 and 27 of the 1988 Act, as it could not be ruled out that he was not entitled to compensation under previous Acts. The Applicant submitted that s 124(3) has no bearing on the appeal. The Applicant specifically identified that s 124(2) of the 1988 Act states that if you are not entitled to compensation under any of the preceding Acts … then the employee will nevertheless not [be] entitled to any compensation under the Act. 

Respondent’s Submissions

59.     The Respondent submitted that neither the tic disorder nor the IBS is a discrete injury or disease as defined in the Act, but rather a manifestation of chronic PTSD.  There is no evidence of an organic basis for the tic disorder or the IBS.  The PTSD arose from episodes in 1969, when there was no provision for compensation for PTSD under the prevailing Act.  Both the tic disorder and IBS are somatic manifestations of the PTSD and were apparent from the time of the Applicant’s military service.  This history has been consistently provided to all treating medical practitioners, who have consistently drawn the same conclusion.  The majority of the assessment of the severity of impairment was based on the history provided by the Applicant and observation of voluntary movements that the Applicant claimed were involuntary. 

60.     The only lump sum compensation available under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) was that provided by ss 39 - 42. Those sections did not entitle the Applicant to lump sum compensation in respect of psychiatric impairment, impairment resulting from a tic disorder or impairment resulting from IBS. The impairment claimed is an impairment that occurred before 1 December 1988, so the Applicant is not entitled to compensation under s 24 of the 1988 Act.

CONSIDERATIONS

61. The Applicant seeks compensation under ss 24 and 27 of the 1988 Act. These sections provide that compensation for injuries resulting in permanent impairment may be payable, including compensation for non-economic loss. The sections provide the relevant matters to be considered. Section 24 of the 1988 Act provides for compensation for permanent impairment under the Guide. Section 27 of the 1988 Act may be contemplated if compensation is payable under s 24.

Onset of injury

62.     There is no dispute that the Applicant suffers chronic PTSD as a result of the experiences of 1969.  There is also no dispute that the impairment is likely to continue indefinitely and is thus appropriately regarded as permanent. 

63.     As these matters relate to events that occurred many years ago, the 1971 Act is relevant (s 124(1) of the 1988 Act).  The transitional provisions of the 1988 Act provide that if compensation would have been payable under the 1971 Act, then it is payable under the 1988 Act (s 124(1A)). 

64.     Lump sum compensation under the 1971 Act was provided for by ss 39-42 inclusive. In summary, these sections provide for lump sum compensation in respect of certain losses. Relevantly, there is no entitlement to lump sum compensation for psychiatric impairment, impairment resulting from a tic disorder or impairment resulting from irritable bowel syndrome. Therefore, as the Applicant would not have been entitled to compensation for these conditions under the 1971 Act, he is excluded from compensation under s 24 of the 1988 Act by the operation of s 124(3) of the 1988 Act.

65. Much of the case law considering the interplay of ss 24 and 124(3) of the 1988 Act relates to consideration of physical injury leading to physical impairment of varying degree over different durations.

66.     The commencement date of the 1988 Act was 1 December 1988.  In Comcare v Levett (1995) 60 FCR 14 the Full Federal Court stated … s 124(3) disentitles an employee to compensation …when the person was not entitled to receive compensation of a lump sum for an impairment which occurred while the 1971 Act was in force.  Later, the Court continued The operation of s 24 of the 1988 Act is limited by s 124(3), properly construed, only when a permanent impairment occurred before the 1988 Act came into force.  Logically, a similar principle would apply, related to similarly construed events occurring while the 1930 Act was in force.  With respect to this review, it is reasonable to postulate that at the time of the Applicant’s experiences in 1969 and in the ensuing months, while the 1930 Act was in force prior to the commencement of the 1971 Act, it would be too early to entertain that the diagnosis was either established or deemed to be permanent. 

67. In summary, the Applicant’s claimed impairments are ones to which s 24 of the 1988 Act would apply but the impairment occurred while the 1971 Act was in force. The provisions of s 124(3)(b)(iii) of the 1988 Act must necessarily apply in this case to exclude any entitlement to compensation that the Applicant has in respect of these conditions.

68. If the tic disorder and the IBS developed as discrete conditions subsequent to 1 December 1988 and were new or distinct impairments that can be related to the events that occurred during naval service in 1969, they could fall within s 24 of the 1988 Act.

69.     In Department of Defence v West (1998) 85 FCR 491, Merkel J in summarising current authorities stated the gradual worsening of a permanent impairment in accordance with its natural progress does not constitute a series of new impairments each giving rise to a separate liability to pay compensation.  His Honour noted that Inevitably, questions of fact and degree are involved in making a qualitative assessment as to whether, in a particular case, the permanent impairment existing at 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. 

70.     In Comcare v Maida [2002] FCA 1282, Mansfield J commented on the focus upon the effect or degree of the permanent impairment rather than the nature of the permanent impairment.  His Honour stated the degree of a permanent impairment … is a different concept under the SRC Act from that of a permanent impairment (emphasis added).  … the use of the Guide to the Assessment of the Degree of Permanent Impairment … as a step in determining the existence of a permanent impairment is erroneous.  In the same paragraph, His Honour disagreed with the [indication of a Tribunal’s] focus upon the worsening of the degree of impairment as evidenced by its consequences, rather than upon the emergence of a new permanent impairment itself. 

71.     In Comcare v Mathieson (2004) 79 ALD 518, Weinberg J followed the majority decision in West in applying the quantitative and qualitative test to impairments existing prior to 1 December 1988. His Honour considered at [55] the issue of … whether the level of deterioration in a person’s condition amounts to a new condition.  At [57], His Honour cautioned that … the use of the Guide indicates a focus upon the worsening of the degree of impairment as evidenced by its consequences rather than upon the emergence of a new permanent impairment itself ….  For a Commonwealth employee to be entitled to compensation for a permanent impairment that existed prior to 30 November 1988, His Honour accepted that there needed to be a post-1 December 1988 identifiable change in the underlying patho-physiological condition before there can be a new physical impairment. 

72.     The Tribunal notes the Applicant is enthusiastic to obtain compensation from the Respondent.  The evidence suggests that the Applicant made two separate compensation claims in different jurisdictions, both with stress at their core, and did not discuss one case with any medical practitioner associated with management of the condition in the other case.  There is great reliance by all medical practitioners on the history presented to them by the Applicant.  All the medical witnesses acknowledged the possibility of faking or exaggerating a medical history, faking or exaggerating voluntary movements, and the Applicant’s precise memory.  Despite many opportunities and invitations to do so, the Applicant did not provide details of any practices and routines he used when preparing for sleep, related to preventing the effects of IBS.  He made no reference to experiencing faecal incontinence. 

FINDINGS

73.     The injury suffered by the Applicant related to Commonwealth employment is PTSD.  No change has occurred in the resulting permanent impairment per se.  Specifically, there is no change in the underlying patho-physiological condition.  On the evidence before it, the Tribunal accepts the Respondent’s submission that the tic disorder and IBS are somatic manifestations of the Applicant’s PTSD.  These somatic manifestations have altered over time and in response to prevailing circumstances.  This is consistent with the expected clinical course of PTSD. 

74.     The precipitating employment events for the Applicant’s medical conditions occurred during 1969, while the 1930 Act was in force.  The Applicant’s date of discharge from the RAN was 24 November 1969.  The evidence before the Tribunal provides that the Applicant’s PTSD existed as a permanent impairment from the time of his discharge. 

75.     The Applicant’s evidence is that the tic disorder dated back to the time of his discharge from the RAN.  He agreed he provided this history to Dr Rollinson when he perused Exhibit R3.  Expert medical evidence, including that of movement disorder specialist, Professor Iansek (Exhibit R4), is consistent - that the tic disorder is properly regarded as a somatic manifestation of the PTSD.  The Applicant’s evidence included that in times of stress since his military service the tic disorder comes upon him.

76.     The Applicant’s evidence is that the IBS dated back to the time of his discharge from the RAN.  Expert medical evidence is consistent - that the IBS is properly regarded as a somatic manifestation of the PTSD. 

77.     The tic disorder and the IBS had existed for about 18 years at the commencing date of the 1988 Act, and, given such duration, must be regarded as being likely to continue. 

78.     There is no evidence of deterioration in the Applicant’s tic disorder or IBS after 1 December 1988 that can be considered a new condition.  The evidence is consistent that the conditions have existed in much the same manner and extent since late 1969, and that the conditions are following an expected clinical trajectory.  There is no evidence of a new physical cause for either condition, and no evidence that could link any physical cause, if it were to be discovered, to his military employment. 

79.     Much of the medical opinion after 2000, related to level of impairment, appears to presume a diagnosis of impairment and applies the Impairment Tables erroneously, in a reverse manner, to find a degree of impairment in order to determine that there is, in fact, an impairment present. 

CONCLUSION

80. The Tribunal concludes that the Applicant is not entitled to compensation for permanent impairment under ss 24 or 27 of the 1988 Act in respect of tic disorder or IBS, as he was not entitled to lump sum compensation under the 1971 Act. The tic disorder and IBS arose out of the service-related PTSD, and are not new injuries or diseases in their own right. There has not been such a deterioration that either condition can be regarded as a new or different impairment. Therefore, the tic disorder and IBS cannot be assessed under the 1988 Act for compensation.

DECISION

81. Accordingly, the Tribunal sets aside the decisions under review, and in substitution decides that the Respondent is not liable to pay any compensation to the Applicant for permanent impairment under ss 24 or 27 of the 1988 Act in respect of tic disorder or IBS.

I certify that the eighty-one [81] preceding paragraphs are a true copy of the reasons for the decision of Dr R McRae, Member

(sgd):      Ursula Noyé

Clerk

Date of Hearing:  26 & 27 February 2007, 24 April 2007

Date of final Submissions:                 22 June 2007

Date of Decision:  6 February 2008

Advocate for the Applicant:               Mr T Loh

Counsel for the Respondent:            Mr A Moulds

Solicitor for the Respondent:            Australian Government Solicitor