Hamish Robson and Military Rehabilitation and Compensation Commission
[2012] AATA 809
•19 November 2012
[2012] AATA 809
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2010/2432; 2012/0919; 2012/0924
Re
Hamish Robson
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President R P Handley
Dr W Isles, MemberDate 19 November 2012 Place Sydney Decision Summary:
The Tribunal sets aside the reconsideration decision dated 28 February 2012 to deny liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) for a psychiatric injury, resulting in the aggravation of Mr Robson’s pre-existing Post Traumatic Stress Disorder (PTSD), arising out of a parachuting accident on 10 February 2004, and substitutes a decision that the Respondent is liable to pay compensation for this injury under s 14.
The Tribunal sets aside a second decision dated 28 February 2012 and substitutes the following decision:
(a) The Respondent is liable to pay compensation to Mr Robson under s 24 and s 27 of the SRC Act for his psychiatric injuries based on an overall impairment assessment of 50% under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment.
(b) The Respondent has no separate liability to pay compensation to Mr Robson under s 24 and s 27 of the SRC Act in respect of his Major Depressive Disorder or the aggravation of his PTSD arising out of the parachuting accident on 10 February 2004.
(c) Since the Respondent has already paid compensation to Mr Robson for permanent impairment in respect of his psychiatric injuries based on an impairment assessment of 50%, the Respondent has no further liability to pay such compensation in respect of these injuries at this time.
.........[sgd]....................................
Deputy President R P Handley
CATCHWORDS
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – Applicant served in Rwanda during 1990s – Applicant developed Post-Traumatic Stress Disorder as a consequence of service in Rwanda – Applicant suffered severe injuries in a parachute accident in 2004 – Applicant developed Major Depressive Disorder as a result of parachute accident – Whether parachute accident caused Applicant to develop further Post-Traumatic Stress Disorder – Guide to the Assessment of the Degree of Permanent Impairment (Second Edition) – Table 5.1 – 50% impairment – Decisions under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Canute v Comcare (2006) 226 CLR 535
Dwight and Comcare [2006] AATA 730
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment (Second Edition)
REASONS FOR DECISION
Deputy President R P Handley
Dr W Isles, MemberMr Robson (the Applicant) has applied for a review of decisions of the Secretary of the Department of Veterans’ Affairs (the Department) (the Respondent) in respect of his claims for compensation for psychiatric injuries suffered in the course of his service in the Australian Army.
BACKGROUND
Mr Robson was born in 1965 and is aged 47. He was formerly married and has four children from that relationship.
Mr Robson enlisted in the Australian Army in February 1987 and was medically discharged in September 2006. He served in Rwanda with the UN Peacekeeping Force from 21 August 1994 to 20 February 1995 and the parties agree that he suffers from Post-Traumatic Stress Disorder (PTSD) arising from that service. On 10 February 2004, he was severely injured in a parachuting accident suffering fractures to both ankles, his pelvis and coccyx and also a duodenal haematoma. Mr Robson also suffered a mental injury as a result of the accident which, he initially contended, comprised PTSD arising from the accident, an exacerbation of the pre-existing PTSD from Rwanda, and a Major Depressive Disorder (MDD).
On 3 May 2005, the Respondent accepted liability to pay compensation to Mr Robson under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for permanent impairment and non-economic loss for the physical injuries suffered in the parachuting accident on the basis of a whole person impairment of 27%.
On 31 March 2008, the Respondent accepted liability to pay compensation to Mr Robson for permanent impairment and non-economic loss for PTSD on the basis of a whole person impairment of 25%. The Applicant requested a reconsideration of this decision and, on 6 April 2009, the Respondent accepted liability on the basis of a whole person impairment of 50%.
On 12 August 2009, Mr Robson applied for a Severe Injury Adjustment (SIA) payment in respect of his injuries which was refused by the Respondent on 23 December 2009, a decision which was affirmed on 31 May 2010 after a reconsideration. On 16 June 2010, the Applicant applied to the Tribunal for a review of this decision. At the hearing on 18 October 2012, Mr Colborne, for the Applicant, informed the Tribunal that the Applicant is no longer pursuing this claim.
On 18 November 2010, the Applicant was examined by Dr Anthony Dinnen, Psychiatrist. In a report dated 8 December 2010, Dr Dinnen assessed the Applicant’s condition under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment (the Comcare Guide) as follows:
(i) Major depression – secondary to physical injuries: 40%
(ii) PTSD – Rwanda: 20%
(iii) PTSD – Parachute accident if any: 20%
On 26 August 2011, the Applicant requested a separate determination for the “three psychiatric conditions as per Dr Dinnen’s report dated 8 December 2010”.
On 14 November 2011, the Applicant was examined by Dr Peter Snowdon, Psychiatrist, at the request of the Respondent. In a report dated 28 November 2011, Dr Snowden diagnosed:
(i) A PTSD arising out of his service in Rwanda.
(ii) A Major Depressive Disorder secondary to the physical injuries he sustained in the parachuting incident.
Dr Snowdon said “the primary source of Mr Robson’s depression has been the implications, for his military career, of the consequences of the injuries sustained in the parachuting accident of 10 April [sic February] 2004”. He said the date of injury for the development of the Applicant’s MDD “seems to have occurred around the time of the argument with the commanding officer in 2005” when the Applicant realised that he would not be returning to full operational duties. With regard to the Applicant’s PTSD, Dr Snowdon said:
I would not see the parachuting accident as being a separate cause for Post-Traumatic Stress Disorder, but would see it as a probably mild exacerbator of this condition, associated with a change in anxiety-related stimuli, particularly related to dreaming.
Dr Snowdon concluded that “the parachuting accident has not significantly contributed to Mr Robson’s Post-Traumatic Stress Disorder”. In a Supplementary Report dated 12 December 2011, Dr Snowdon assessed the Applicant’s level of impairment under Table 5.1 of the Comcare Guide as 10% for PTSD and 10% for Major Depression. In a Supplementary Report dated 21 December 2011, he said, referring to these assessments, “to clarify, both subserved under the total percentage of 10%”.
On 11 January 2012, the Respondent denied liability under s 14 of the SRC Act in respect of Mr Robson’s separate claim for PTSD arising out of the parachuting accident.
In a separate decision, also on 11 January 2012, the Respondent:
(1)accepted liability to pay compensation in respect of PTSD and MDD based on one whole person impairment of 10% assessed under Table 5.1 of the Comcare Guide;
(2)declined payment of compensation in respect of these conditions on the ground that Mr Robson has already received compensation for his accepted psychiatric conditions based on a whole person impairment assessment of 50%; and
(3)denied liability for the payment of compensation for permanent impairment and non-economic loss in respect of PTSD attributable to Mr Robson’s parachuting accident, liability having been declined under s 14 of the SRC Act.
By letter dated 18 January 2012, the Applicant sought a reconsideration of both decisions dated 11 January 2012. In a reconsideration decision dated 28 February 2012, the Respondent affirmed those decisions and on, 7 March 2012, the Applicant applied to the Tribunal for a review of these decisions.
By letter dated 13 September 2012, the Applicant’s solicitors asked Dr Dinnen to review further documentation and, in particular, to reassess the Applicant’s position following the parachuting accident. In a report dated 28 September 2012, Dr Dinnen said:
It is my certain view that the patient’s overall psychiatric condition can be seen as a combination of post traumatic stress disorder and major depressive disorder, with each condition contributing equally. These disorders are inextricably linked. Clinically they must be seen as part and parcel of the same overall condition. In accord with the comments above, I would apportion half his condition to PTSD.
The overall condition warrants a rating of 50% on Table 5.1. This is in accord with descriptor on Table 5.1.
He therefore accorded an impairment rating of 25% for PTSD and 25% for MDD. Dr Dinnen also said that the MDD “was causally related to the parachute accident”.
ISSUES AND LEGISLATION
Section 24(1) of the SRC Act states relevantly:
(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)…
(3)…
(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).
Impairment is defined in s 4(1) as follows:
"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.
At the hearing, Mr Colborne said that while there are three applications before the Tribunal, the only issues the Applicant is pursuing are:
(a) whether Mr Robson sustained an injury, being the aggravation of his PTSD that was contributed to in a material degree by the parachuting accident and subsequent hospitalisation;
(b) if Mr Robson did suffer an aggravation of his PTSD, what is the degree of impairment from that injury; and
(c) what is the degree of permanent impairment of his MDD?
The relevant reconsideration decision in respect of which Mr Robson has sought a review is a reconsideration decision dated 28 February 2012 to:
(a) affirm a decision dated 11 January 2012 to:
·accept liability to pay compensation in respect of PTSD and MDD based on one whole person impairment of 10% assessed under Table 5.1 of the Comcare Guide;
·decline payment of compensation in respect of these conditions on the ground that Mr Robson has already received compensation for his accepted psychiatric conditions based on a whole person impairment assessment of 50%; and
·deny liability for the payment of compensation for permanent impairment and non-economic loss in respect of PTSD attributable to Mr Robson’s parachuting accident.
(b) affirm a decision dated 11 January 2012 to deny liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) for a separate claim for PTSD arising out of Mr Robson’s parachuting accident.
In the course of the hearing, Mr Clarke, for the Respondent, said his client concedes that the parachuting accident gave rise to a PTSD injury but contends this was temporary only.
THE EVIDENCE
Mr Robson’s Evidence
In addition to the material in the T Documents, Mr Robson provided a Supplementary Statement dated 7 May 2012. He said that after he returned from Rwanda, he was clearly experiencing problems in adjusting to the events that took place there. He did not immediately seek help. However, as a result of his irritability and short temperedness with his wife and family, his wife insisted that he seek professional help. Mr Robson said he contacted an Army psychologist whom he saw on 10 April 1995, but he has no recollection of the assessment made. He can, however, remember starting to have nightmares relating to his experiences in Rwanda at that time and to being extremely frustrated at any small thing, causing him to become agitated and irritable. While his home life and marriage were affected by his irritability and he was less sociable than he had been before, he was still functioning in what he considered to be a relatively normal way. Moreover, he remained active and committed to his career in the Army, successfully completing a number of courses and rising in rank from Sergeant to Warrant Officer.
Mr Robson said the turning point in his psychiatric state was the parachuting accident in February 2004. Because of his resulting physical injuries, he spent long periods recovering in hospital during which he spent a lot of time watching television. It was then the tenth anniversary of the Rwanda Peacekeeping Mission, which attracted a lot television coverage dealing with what occurred. As a result, he experienced “substantial flashbacks, intrusive thoughts and a feeling of distress and hopelessness that up to that point I had not experienced”. Mr Robson said his psychiatric state was starting to affect every aspect of his life. His marriage was falling apart and any small irritation would send him off in fits of rage. He said:
17. I felt and continue to feel highly unstable around a lot of people whether it be in a social setting, hospitals, in situations where I might feel comfortable to begin with and then something is said or I have some negative experience then I become very agitated.
18. I have had episodes of road rage when I think if I could get hold of the person I would do extreme harm which I am more than capable of doing because of my size and training.
Mr Robson referred to his major depression and attempts at self harm. (The Tribunal notes other evidence referring to an attempted suicide with a drug overdose in December 2005 resulting in a short admission to Liverpool Hospital, to his slashing his wrists while undergoing psychiatric treatment at the St John of God Hospital at Richmond in July/August 2006, to another suicide attempt on 6 November 2008, and to recurring comments about his suicidal ideation.)
In oral evidence, Mr Robson told the Tribunal his mental health was relatively stable before the parachuting accident and he was managing training courses in the Army. After the accident and surgery at Nepean Hospital, he spent 10 or 11 weeks in Royal North Shore Hospital and then four to six weeks in the Southern Highlands Private Hospital before spending between three and five months at home recovering. Mr Robson said when he went back to work he was still taking a lot of medication. He was working in the training unit and was allowed to rest after lunch. As work came in, he found it more and more difficult to cope because of his difficulty concentrating.
Mr Robson said he suffers from short term memory loss: when he goes to do something, he will often forget what it is. He continues to see his treating psychiatrist, Dr Williams, once a month. Currently, he lives with his mother who does his washing and ironing.
Dr Dinnen’s Evidence
Dr Dinnen provided a report dated 8 December 2010 after examining Mr Robson on 18 November 2010, and a further report dated 28 September 2012 after reviewing further reports and Mr Robson’s Supplementary Statement of 7 May 2012. In his first report, Dr Dinnen said “it is likely that he [Mr Robson] developed PTSD as a result of the parachute accident. However that PTSD cannot be separated out from the PTSD of February 1995 and the depressive illness accepted in September 2006”. Dr Dinnen assessed Mr Robson’s psychiatric conditions according to Table 5.1 of the Comcare Guide as follows: (i) major depression – secondary to physical injuries 40%; (ii) PTSD – Rwanda 20%; PTSD – parachute accident 20%.
In his later report, Dr Dinnen said Mr Robson’s PTSD consequent to service in Rwanda “was markedly aggravated after the parachute accident”, both as a result of the accident and Mr Robson’s exposure to information about the Rwandan anniversary. Dr Dinnen reiterated that Mr Robson’s PTSD as a result of the parachute accident “cannot be separated out from the PTSD following his service in Rwanda”. Dr Dinnen said Mr Robson’s MDD was causally related to the parachute accident. With regard to assessment, Dr Dinnen said (quoted at paragraph 15, above) Mr Robson’s psychiatric condition is a combination of PTSD and MDD: these conditions are inextricably linked and should be considered equal contributors to the same overall condition which warrants an impairment rating of 50% under Table 5.1 of the Comcare Guide.
In accordance with this assessment, Dr Dinnen attributed a 25% impairment to PTSD and a 25% impairment to MDD, acknowledging that he had modified his opinion since his earlier report. In oral evidence, he told the Tribunal that the percentage impairments in the Comcare Guide are not easy to interpret in cases of severe illness. It was his impression that he was being asked to assess the global impairment affecting Mr Robson and it is his view that each of the PTSD and MDD makes an equal contribution to this impairment.
Dr Dinnen said both PTSD and MDD cause abnormalities in the brain. Some features are common to both; others are not. For example, while anxiety is a common feature of both, hypervigilance and hypersensitivity are features of PTSD, while feelings of hopelessness, sadness and slowness in thinking are features of MDD. Some drugs used to treat depression are effective in treating PTSD and some drugs used to treat PTSD are effective in treating depression, also suggesting that there are common features. In oral evidence, Dr Dinnen said that recent neurobiological research indicates that the two conditions may affect different parts of the brain, but the distinction is not clear because some parts of the brain are affected by both.
Dr Dinnen said that in about 50% of PTSD cases, there is associated depression: the two conditions commonly interact with one another. In making a diagnosis, a clinician will look for the most prominent features, in some cases diagnosing PTSD with MDD while in other cases diagnosing MDD with PTSD, depending on which condition predominates. Dr Dinnen said that in Mr Robson’s case, the causes of his PTSD and MDD are different: the PTSD was caused by a combination of his experience in Rwanda and the parachute accident, whereas his MDD was related primarily to his parachute accident. There is no evidence of depression until after the parachuting accident.
With regard to assessment of Mr Robson’s PTSD, Dr Dinnen said the evidence suggests an assessment of 10% (because of the effect on his personal life) might be appropriate for the Rwanda PTSD under Table 5.1. However, after the parachuting accident, the PTSD worsened significantly, causing a severe disruption of Mr Robson’s life . Dr Dinnen said, clinically, Mr Robson’s PTSD was twice as bad after the accident as before and said an assessment of 50% would be appropriate given the severe disturbance of his life, his self-harm (the risk of which was apparent when he saw Mr Robson on 18 November 2010), and the risk of harm to others. Dr Dinnen agreed that the enforced inactivity and pain associated with recovering from a serious accident such as that suffered by Mr Robson, is liable to prompt PTSD. However, it is not possible to identify a separate PTSD arising from the parachuting accident. Dr Dinnen also noted that the aggressiveness Mr Robson described is not something one finds in someone who is severely depressed.
With regard to assessment of Mr Robson’s MDD, Dr Dinnen said he assessed this as being of marked severity in view of the history of treatment, hospitalisations, and descriptions of feelings of hopelessness, staying in bed and difficulty with relationships. Mr Robson needs ongoing support and so, for example, is seeing a psychiatrist regularly. Dr Dinnen said an assessment of 40 or 50% was appropriate given the severe disturbance, suicidality and depth of depression, and the need for supervision and direction. He noted Dr Williams’ (Mr Robson’s treating psychiatrist) assessment of 50%.
In cross-examination, Dr Dinnen was asked to comment on Dr Snowdon’s report of 28 November 2011. Dr Dinnen said it did not appear from Dr Snowdon’s report that Mr Robson had made any significant recovery at the time Dr Snowdon saw Mr Robson on 14 November 2011, approximately 12 months after Dr Dinnen saw Mr Robson on 18 November 2010. Dr Dinnen noted Dr Snowdon’s initial assessment of Mr Robson’s impairment at 41% under the NSW WorkCover assessment tables, which Dr Dinnen said is a very high and rarely seen assessment.
Dr Snowdon’s Evidence
Dr Snowdon provided a report dated 28 November 2011, after seeing Mr Robson on 14 November 2011, plus supplementary reports of 28 November 2011, 12 December 2011 and 21 December 2011 in relation to the assessment of Mr Robson’s impairment. Dr Snowdon acknowledged that he had made a 41% impairment assessment under the NSW WorkCover assessment tables, of which 70% was attributable to PTSD and 30% to MDD. Dr Snowdon agreed that there is a considerable disparity between this WorkCover assessment and his assessment of 10% each for PTSD and MDD, “both subserved under the total percentage of 10%”, under Table 5.1 of the Comcare Guide. Dr Snowdon noted that neither the WorkCover Guide Table nor the Comcare Guide Table allow for assessment of anxiety and stress, and he commented that the Comcare Table is a poor measure of psychiatric impairment compared to the WorkCover Guide Table.
In his report dated 28 November 2011, Dr Snowdon described the parachuting accident as “a probably mild exacerbator” of Mr Robson’s PTSD. At the hearing, he initially said that by the time he examined Mr Robson on 14 November 2011, Mr Robson may have minimised his memory of these symptoms and the aggravation of his PTSD relating to the parachuting accident may have resolved. However, in cross-examination, Dr Snowdon acknowledged that Mr Robson may have minimised the effect of the parachuting accident in relation to the PTSD. Moreover, Dr Snowdon agreed that the effect of the parachuting accident could of itself fulfil the criteria for a diagnosis of PTSD under DSM IV. He said the symptoms reported by Mr Robson in relation to the content of dreams – that, after the parachuting accident, they had a different but more alarming ending – do not support a finding that the parachuting accident caused a significant aggravation of the PTSD. On the basis of the available evidence, he said an assessment of 10% for PTSD before the accident might be appropriate.
Dr Snowdon said an important matter in assessing impairment under Table 5.1 is whether the person needs supervision. At the time of his examining Mr Robson on 14 November 2011, Mr Robson was living without supervision although he had been extensively treated including hospitalisation and medication. While noting that Mr Robson had reported his medication was helping him sleep and was keeping him “at a level playing field” where he was no longer aggressive or violent, Dr Snowdon said Mr Robson was probably overly optimistic in saying this.
Dr Snowdon said that while there are large areas of overlap in relation to the features of PTSD and MDD, such as irritability, impaired concentration, difficulty sleeping, and an inability to relate to others, other features are not common to both: for example in the case of PTSD, arousal, preoccupation, and the easy triggering of flashbacks, and in the case of MDD, helplessness, hopelessness, difficulty concentrating, and suicidal thoughts. Dr Snowdon said, nevertheless, the only valid way of assessing Mr Robson’s impairment is globally, looking at the combined effect of both conditions.
In cross-examination, Dr Snowdon was referred to Mr Robson’s clinical records from 2004/2005 dating from after the parachuting accident. Dr Snowdon agreed that these suggest an aggravation of Mr Robson’s PTSD as a result of the parachuting accident, but it is not clear how severe this was or for how long this persisted. Mr Robson’s capacity to ruminate on events as he was lying in hospital could have precipitated symptoms.
Dr Snowdon said Mr Robson described what appears to have been “an appalling upbringing” with a violent father, and this could have affected his later behaviour. Excessive alcohol intake probably also exacerbated his later violence and aggression after the parachuting accident. Dr Snowdon said that, in his opinion, Mr Robson’s PTSD is more significant than his depression. Dr Snowdon said that if one were to assess Mr Robson under Table 5.1 of the Comcare Guide without regard to the need for supervision and direction, an assessment at 50% for each of PTSD and MDD would be appropriate. Without such regard to the need for supervision and direction, an overall assessment of 50% would be appropriate for such a severely incapacitated individual, given the combined, intertwined effect of the conditions, with equal contributions from PTSD and MDD. Dr Snowdon said he does not interpret the need for supervision as meaning requiring treatment by a psychiatrist or psychologist.
SUBMISSIONS
Applicant
Mr Colborne submitted that Mr Robson has suffered two injuries: PTSD due to his service in Rwanda aggravated by the parachuting accident and his time in hospital afterwards; and MDD arising from his physical injuries suffered in the parachuting accident. Because Mr Robson suffers from two separate diagnosable conditions – PTSD and MDD – which, notwithstanding that there may be some overlap in the impairment caused by the two conditions, also cause different effects on the brain, these two conditions are separately compensable. Each injury must be assessed separately under Table 5.1 of the Comcare Guide.
Mr Colborne submitted that Table 5.1 does not contain any express requirement to satisfy all lesser levels of impairment set out in a Table in making an assessment and should not therefore be construed as doing so: Dwight and Comcare [2006] AATA 730 (Dwight), at [57]. Thus, for an assessment of 50%, where there is evidence of “severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others”, there is no requirement for the person to have a need for supervision and direction in the activities of daily living (at [58]).
In any event, Mr Colborne said Dr Snowdon’s interpretation of what is meant by the need for supervision does not accord with that of many others in the community. While Dr Snowdon found no need for supervision and direction, he overlooked the fact that Mr Robson does not cook for himself, and his need for ongoing treatment. Dr Dinnen said Mr Robson “does require assistance with activities of daily living, with medication and ongoing psychiatric care, and the support of a companion either a girlfriend, or a family member” (report 28 September 2012, p 5). The evidence of Mr Robson’s suicidal tendencies and the potential for his harming others, clearly establishes the need for ongoing psychiatric care.
Mr Colborne submitted that separate assessments should be made for each of Mr Robson’s PTSD and MDD and that the appropriate assessment for each is 50%.
Respondent
Mr Clarke submitted that Mr Robson has suffered an impairment to one body part or bodily system – the brain – and the appropriate approach is to make one assessment. He noted that Mr Robson’s claim form encompassed features of both PTSD and MDD. While the PTSD and MDD from which Mr Robson suffers are separately diagnosable conditions, the medical evidence is that his conditions are intertwined and comprise a complex mix of features, many of which are common to both conditions.
Mr Clarke submitted that the different levels of impairment set out in Table 5.1 seek to describe escalating levels of psychiatric impairment. However, the Respondent acknowledged that “[t]here is Tribunal authority for the proposition that the Tables of the Guide are not to be construed as requiring a cumulative reading.”
With regard to the description of the level of impairment for a 50% assessment, the Respondent referred to the note to Table 5.1 which states: “The assessment should be made on optimum medication at a stage where the condition is reasonably stable”. Dr Snowdon noted Mr Robson telling him that his current medications “help him sleep, and ‘keep me at a level playing field’, to which he is no longer, he said, aggressive or violent”.
DISCUSSION
Did Mr Robson suffer an aggravation of his PTSD?
The issues raised by the Applicant, set out at paragraphs 18 and 19 above, require, first, that the Tribunal determine whether, in the parachuting accident on 10 February 2004, Mr Robson suffered a permanent injury, namely an aggravation of the PTSD caused by Mr Robson’s service in Rwanda. In a decision dated 11 January 2012, the Department rejected Mr Robson’s claim for PTSD arising out of this accident, a decision confirmed on 28 February 2012 following a review.
After the Tribunal had heard evidence from Dr Snowdon, Mr Clarke conceded that the parachuting accident led to a temporary PTSD. The question for the Tribunal is whether the aggravation is permanent.
Both Dr Dinnen and Dr Snowdon said that Mr Robson’s PTSD was significantly worse after the accident. This was probably a result of both the parachuting accident itself, and the long period of recuperation that followed in hospital and at home, during which Mr Robson experienced chronic pain and enforced lack of activity. Coincidentally at this time, there was television coverage of the tenth anniversary of the massacres in Rwanda and their aftermath, and Mr Robson’s enforced inactivity allowed him to ruminate on his experiences, thereby precipitating symptoms of PTSD.
Dr Snowdon initially told the Tribunal that by the time he saw Mr Robson in November 2011, the aggravation relating to the parachuting accident had probably resolved. However, it became apparent in the hearing that the history of symptoms that Mr Robson had given to Dr Snowdon was less detailed than that given to Dr Dinnen and, therefore, Dr Snowdon did not have as extensive a history of Mr Robson’s symptoms both before and after the parachuting accident. Dr Snowdon acknowledged that Mr Robson may have minimised the effect of the parachuting accident in recounting his history.
The Tribunal is satisfied from Mr Robson’s evidence and that of Dr Dinnen that Mr Robson did suffer a psychiatric ‘injury’, namely the aggravation of his pre-existing PTSD, as a result of the parachuting accident. The evidence indicates that his PTSD is now significantly more severe than it was before the parachuting accident when, despite ongoing symptoms and decreased social functioning, he was able to continue his work in the Army and progress his career, gaining a promotion to Warrant Officer. He is now unable to work, his social functioning is severely curtailed, and his activities of daily living are significantly restricted. While his condition appears to be relatively well controlled as a result of medication and ongoing treatment from a psychiatrist, Dr Williams, the evidence of Dr Snowdon and Dr Dinnen indicates that there is an ongoing risk of a loss of control that could result in self-harm or aggression towards others.
What is the level of impairment attributable to the aggravation of Mr Robson’s PTSD?
There is no dispute that Mr Robson suffers from both PTSD and MDD. Both Dr Dinnen and Dr Snowdon agreed on these diagnoses. The evidence indicates that the MDD arose out of the physical injuries Mr Robson suffered in the parachuting accident.
The Tribunal notes that Mr Robson first lodged a claim for PTSD on 12 February 2007, describing the injury as “PTSD parachute accident”. An accompanying document (a letter dated 20 January 2005 from a regimental medical officer), stated that Mr Robson had been experiencing PTSD symptoms relating to his military service in Rwanda since 1994 and to his parachuting accident in 2004.
The Departmental decision dated 22 June 2007 determined that Mr Robson had contracted PTSD to which his military service had contributed in a material degree and that the date of injury was 20 February 1995. The delegate referred to a report by Dr Williams dated 5 June 2007 in which Dr Williams said, in answer to a question: “This man was exposed to experiences in his Rwanda service which caused the post traumatic stress disorder”.
In a decision dated 31 March 2008, a delegate of Comcare decided to pay lump sum compensation to Mr Robson in respect of his accepted condition of PTSD, based on an assessment of a 25% whole person impairment made by Dr Patrick Morris, Psychiatrist, in a report dated 21 November 2007. Dr Morris diagnosed Mr Robson as suffering from “PTSD/Major Depressive Disorder” and made an assessment of 25% in respect of both conditions under Table 5.1. The Applicant sought a reconsideration of the Comcare delegate’s decision.
On 6 April 2009, another Comcare delegate decided to vary the decision of 31 March 2008 by increasing the lump sum compensation payment to reflect a whole person impairment assessment of 50%. The delegate based this decision on further information from Mr Robson and a report dated 30 March 2009 from his treating psychiatrist, Dr Williams, who assessed Mr Robson’s whole person impairment as being 50% under Table 5.1. Dr Williams diagnosed Mr Robson as suffering from chronic PTSD causing an impairment to his “Brain – Psychiatric Disturbance”.
In the Tribunal’s view, Comcare should be understood as having made an assessment of whole person impairment based on Mr Robson’s overall psychiatric condition in the period since the parachuting accident. In making its determination, there was no meaningful attempt by Comcare to distinguish Mr Robson’s PTSD from his MDD. The added complication was the Applicant’s request that the Tribunal make a separate assessment of the PTSD injury caused by the parachuting accident.
In the parties’ submissions at the hearing, there was reference to the High Court’s decisions in Canute v Comcare (2006) 226 CLR 535 (Canute) and Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28 (Fellowes). In Canute, at [10], the High Court emphasised that the SRC Act obliges Comcare to pay compensation in respect of an ‘injury’, defined “in terms of the resultant effect of an incident or ailment upon the employee’s body”. In addition, the Court said, “The Guide is to be approached through the prism of each ‘injury’” (at [14]). Further, “It is the occurrence of ‘an injury’ which both actuates and defines the ambit of Comcare’s duty pursuant to s 24 of the Act” (at [37]).
In Fellowes, at [21], the High Court said that it follows from its decision in Canute that “‘impairment’ is to be identified in terms of effects on bodily parts, systems or functions”. Moreover, the Comcare Guide requires that ‘whole person impairment’ is to be assessed “by reference to the functional capacities of a normal healthy person” (at [24]). The Court noted, at [26]:
The text of the Guide is therefore to be construed as providing that the whole person impairment to which it directs attention requires comparison with the "functional [capacities] of a normal healthy person" rather than the capacities of the particular applicant as they existed immediately before the injury in question. The reference to two injuries causing the "same impairment" requires attention to the particular identified effect on bodily parts, systems or functions that is said to have resulted from the two injuries.
In the Tribunal’s view, it is not possible in the circumstances of this case to draw a distinction in terms of impairment between Mr Robson’s PTSD and MDD which affect the same body part – Mr Robson’s brain. The facts are distinguishable from those in Fellowes where the Applicant suffered separate injuries to different knees. In this instance, there is only one body part affected, and while Dr Snowdon and Dr Dinnen agreed that there are some features that are referrable only to either to PTSD or MDD, equally there are other features common to both which respond to the same medication. Dr Snowdon and Dr Dinnen agreed that the conditions interact with one another and are intertwined. Dr Snowdon said that in cases such as this where the conditions are severe, the degree of overlap is greater.
Not only, in the Tribunal’s view, is it not feasible to draw a distinction between the impairment caused by the PTSD and MDD, equally it is not feasible to draw a distinction between the Rwanda caused PTSD and the aggravation of that PTSD caused by the parachuting accident. The first reference to PTSD symptoms in Mr Robson’s clinical records appears to have been in the period of hospitalisation following the parachuting accident in late February 2004. In a letter dated 21 February 2004 (which perhaps should have read 2005), a Regimental Medical Officer referred Mr Robson to Dr B Keshava, Psychiatrist, for counselling and management, noting that Mr Robson had been “experiencing symptoms of PTSD related to military service in Rwanda”. In a report dated 27 May 2005, Dr Keshava said he had first seen Mr Robson on 14 March 2005 and reviewed him on 12 May 2005. Dr Keshava diagnosed PTSD with comorbid depression.
While not diagnosed until after the parachuting accident, Mr Robson’s evidence of symptoms after his Rwanda service – including problems at home, and his account of being treated by an Army psychologist in 1995, together with the post-accident references to this in his clinical notes and the histories taken by his treating doctors and the psychiatrists to whom he was referred for assessment – clearly indicate that a diagnosis of PTSD arising from his Rwanda experiences was warranted. Both Dr Dinnen and Dr Snowdon were asked about this at the hearing and thought that an impairment rating of 10% might be appropriate, but no reliable assessment was made at the relevant time. However, it is clear that by the time Mr Robson’s PTSD was diagnosed and assessed after the parachuting accident, he had developed a complex PTSD picture as a result of the Rwanda PTSD being aggravated by the parachuting accident PTSD, such that any separate assessment of the two PTSDs would be pure guesswork. In any event, the result of the two injuries is one overall PTSD condition and one PTSD impairment.
In the Tribunal’s view, it is clear that the impairment assessments made in response to the initial claim made by Mr Robson were in respect of Mr Robson’s psychiatric disturbance as a whole. There was no attempt to distinguish PTSD caused by Rwanda from PTSD caused by the parachuting accident, nor was a distinction drawn between PTSD and the MDD from which Mr Robson was also, according to most of the psychiatric reports, suffering. In other words, the impairment assessments made were holistic assessments of the impairment caused by the psychiatric disturbance to Mr Robson’s brain. It was clearly on this basis that the Comcare reconsideration delegate determined on 6 April 2009 that Mr Robson should be paid lump sum compensation based on a 50% whole person impairment assessment.
Thus, the Tribunal’s answer to the question posed, ‘what is the level of impairment attributable to the aggravation of Mr Robson’s PTSD?’ is that it is not possible to make an accurate assessment of this and the Tribunal therefore declines to do so. We note that both Dr Dinnen and Dr Snowdon expressed concern about the unsuitability of Table 5.1 of the Comcare Guide for making an impairment assessment in such a case. We also note that the aggravation of Mr Robson’s PTSD appears to have already been taken into account in the impairment assessments which led to the Comcare reconsideration delegate’s decision on 6 April 2009 referred to above.
What is the degree of permanent impairment attributable to Mr Robson’s Major Depressive Disorder?
The third issue raised by Mr Colborne is the degree of permanent impairment attributable to Mr Robson’s MDD. As the Tribunal has explained above, in its view the facts of this case are distinguishable from those in Fellowes where the Applicant suffered separate injuries to different knees. In Mr Robson’s case, while he has suffered two separate injuries, reflected in the PTSD and MDD from which he now suffers, both injuries were to the same body part – the brain. Moreover, the features of the two conditions are so inextricably intertwined as to make it practically impossible to make any realistic separate assessment. In his report dated 28 September 2012, Dr Dinnen said: “These disorders are inextricably linked. Clinically they must be seen as part and parcel of the same overall condition.” He said the overall condition warrants an impairment rating of 50%, apportioning half of this to PTSD and half to MDD. Dr Snowdon said at the hearing that the only valid way of assessing Mr Robson’s impairments is “globally – in terms of the combined effect of both conditions”. He agreed that that the two conditions make an equal contribution to the overall assessment.
The Tribunal therefore declines to make a separate impairment assessment in respect of MDD under Table 5.1.
In relation to whether the Tribunal should make an overall assessment of 50%, we had regard to the decision in Dwight where the Tribunal noted the disparity in the descriptions of the different levels of impairment in Table 5.1 of the Comcare Guide. In that case, the Tribunal rejected the need to assess a person’s level of impairment cumulatively by starting at the lowest level of impairment and proceeding step by step to the higher levels of impairment (requiring that the description at each level of impairment be satisfied before proceeding to the next level). We note that there is no requirement in the Comcare Guide that this approach should be adopted. Given that the legislation should be construed beneficially, our view is that the level of impairment selected should be the one for which the description for that level of impairment is satisfied without reference to the descriptions for lower levels of impairment.
Thus, in relation to the impairment rating of 50% under Table 5.1, we note there is no requirement that the person being assessed has a need for supervision and direction in the activities of daily living, a requirement which features in the descriptions for lower levels of impairment in the Table. It follows that, in our view, Dr Snowdon made an error in his assessment of Mr Robson under Table 5.1 when, in his report dated 12 December 2011, he said that Mr Robson could not score higher than 10% for either PTSD or MDD “because there is no need for supervision and direction in Activities of Daily Living”. In oral evidence at the hearing, Dr Snowdon said that without regard to the need for such supervision and direction, an overall assessment of 50% would be appropriate.
While the Tribunal notes Mr Robson disputes he has no need for supervision and direction in the activities of daily living (because of his need for ongoing psychiatric supervision and treatment and assistance and support from family members), in our view there is no requirement that there be such a need in order to satisfy the description for an impairment rating of 50%. The description for a 50% impairment rating in Table 5.1 is as follows:
ONE of the following
·severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others
·need for supervision and direction in a confined environment
The Tribunal is satisfied that Mr Robson meets the first of these two descriptions. There is evidence of his having severe disturbances of thinking and/or behaviour which has led to a number of suicide attempts (see above paragraph 23) and to aggression or potential aggression towards others. In his report dated 8 December 2010 (at p 4), Dr Dinnen states that Mr Robson:
… told me he is dangerous when he is driving. He described an incident recently, only a month or so ago. He had “a punch up with the RTA”. He was driving in the Bowral district. The road sign said 40 kilometers (sic) an hour limit due to road work. There was no point in obeying that limit, if there was no roadwork in sight. However when he came over a hill he suddenly encountered an RTA officer with a stop/go sign. “I was abused for going too fast”. He got out of his vehicle and punched the man to the ground. I asked if any action had been taken against him and he replied that he was not aware of any.
He also mentioned that his exwife (sic) had taken out an AVO, and he had just come from court concerning that matter. They have been separated now for two years. Later he mentioned an incident where he had chased his wife with a knife. The police had been called in. he doesn’t remember much more of that. It may have happened in 2007 or 2008.
There are also references to Mr Robson’s suicidality and aggression in the reports of his treating psychiatrist, Dr Williams. In a letter to Mr Robson’s solicitor dated 28 September 2010, Dr Williams said that Mr Robson “presents a chronic ongoing risk of ending his life violently”. In a further letter dated 2 November 2010, Dr Williams said:
For a long time his anger has been very difficult to control, and it seems to be getting worse, and less easy to control both by himself, and by myself as his treating psychiatrist.
He and I are most concerned that when he has to give evidence in Court about his compensation claim, there is a real chance that he will ‘lose it’, if his veracity is questioned. If he ‘loses it’, it would be a disaster, and people could be very seriously injured, or even killed. As you know, he is a trained commando, and when he ‘loses it’, there is no stopping him, and he would present a real threat to whoever is interrogating him or anyone else that he felt was questioning his veracity.
The Respondent referred to the note to Table 5.1 which states: “The assessment should be made on optimum medication at a stage where the condition is reasonably stable”. While Mr Robson told Dr Snowdon that the medications he is taking help him sleep and keep him “at a level playing field”, Dr Snowdon said Mr Robson “is probably over optimistic in saying he is no longer aggressive or violent”. Certainly, Mr Robson’s history to Dr Dinnen and the reports of Dr Williams indicate that he has ongoing problems of this kind.
Thus, the Tribunal is satisfied that an overall impairment assessment of 50% in respect of Mr Robson’s psychiatric conditions is appropriate, noting this accords with assessments made by Dr Williams, Dr Dinnen, and, without regard to the need for supervision and control, by Dr Snowdon.
DECISION
The Tribunal sets aside the reconsideration decision dated 28 February 2012 to deny liability under s 14 of the SRC Act for a psychiatric injury, namely aggravation of Mr Robson’s pre-existing PTSD, arising out of a parachuting accident on 10 February 2004, and substitutes a decision that the Respondent is liable to pay compensation for this injury under s 14.
The Tribunal sets aside a second decision dated 28 February 2012 and substitutes the following decision:
(a) The Respondent is liable to pay compensation to Mr Robson under s 24 and s 27 of the SRC Act for his psychiatric injuries based on an overall impairment assessment of 50% under Table 5.1 of the Comcare Guide.
(b) The Respondent has no separate liability to pay compensation to Mr Robson under s 24 and s 27 of the SRC Act in respect of MDD or the aggravation of his PTSD arising out of the parachuting accident on 10 February 2004.
(c) Since the Respondent has already paid compensation to Mr Robson for permanent impairment in respect of his psychiatric injuries based on an impairment assessment of 50%, the Respondent has no further liability to pay such compensation in respect of these injuries at this time.
I certify that the preceding 75 (seventy five) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley and Dr W Isles, Member.
......[sgd]...............................................
Associate
Dated 19 November 2012
Dates of hearing 18 - 19 October 2012 Date final submissions received 1 November 2012 Counsel for the Applicant Mr C. Colborne Solicitors for the Applicant KCI Lawyers Counsel for the Respondent Mr C. Clark Solicitors for the Respondent Dibbs Barker
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