Henry and Comcare (Compensation)

[2016] AATA 912

Henry and Comcare (Compensation) [2016] AATA 912 (16 November 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3132
Re	Shane Henry
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Mrs J C Kelly, Senior Member
Date	16 November 2016
Place	Sydney

The reviewable decision is set aside and substituted for that decision is the decision that the applicant has a 10% whole person impairment resulting from adjustment reaction with mixed emotional features and therefore the respondent is liable to pay the applicant compensation pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988.

...................................[sgd].....................................

Mrs J C Kelly, Senior Member

CATCHWORDS

COMPENSATION – compensable condition of adjustment reaction with mixed emotional features – whether the applicant suffers from a permanent impairment resulting from the compensable condition – the effect of the applicant’s alcohol consumption on his impairment – whether the degree of whole person impairment is 10% or more – whether the applicant is entitled to compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 – decision set aside and decision made in substitution

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

SECONDARY MATERIALS

Comcare, Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

16 November 2016

THE REVIEWABLE DECISION

1. The applicant requests a review of the decision made by a delegate of the respondent on 14 May 2015. That decision affirmed a determination made by the respondent on 2 April 2015 which denied liability for compensation for permanent impairment and non-economic loss under section 24 and section 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in relation to the applicant’s condition “adjustment reaction with mixed emotional features”, sustained on 21 November 2013 (the compensable condition).

2. In the reviewable decision of 14 May 2015, the respondent’s delegate was satisfied that the applicant qualified for a 5% whole person impairment under Table 5.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 (the Guide).

   THE ISSUES

3. The issues in this case are:

   (a)Whether the applicant suffers from a permanent impairment as a result of his compensable condition, as distinct from his alcohol consumption;

   (b)The degree of the impairment assessed under the Guide; and

   (c)Whether the applicant is entitled to compensation under sections 24 and 27 of the SRC Act.

   THE EVIDENCE BEFORE THE TRIBUNAL

4. The following evidence was before the Tribunal:

   ·The “T documents” comprising 226 pages;

   ·Oral evidence from the applicant and his statement dated 30 March 2016;

   ·Oral evidence from the applicant’s partner, Ms Wakefield, and her statement dated 4 April 2016;

   ·The applicant’s NSW Traffic Record Report;

   ·A report from Dr Chaudhary, consultant psychiatrist, dated 10 June 2016;

   ·Oral evidence and a report from Dr Canaris, consultant psychiatrist, dated 25 August 2015; and

   ·Oral evidence and reports from Dr Smith, consultant psychiatrist, dated 18 March 2015, 13 October 2015 and 5 February 2016.

   BACKGROUND

5. The following is not contentious. The applicant was employed by the Commonwealth Director of Public Prosecutions as a courier driver. He injured his right elbow when he fell at work on 24 November 2010. Liability was accepted pursuant to sections 14, 16 and 19 of the SRC Act. He underwent surgery on his right elbow in May 2011. He was then unfit for duty until 3 September 2012 when he returned to work with restrictions. His work was upgraded in January 2013, March 2013 and April 2013. On 28 May 2013 driving lessons were organised to assist him with the use of a “spinner knob” to enable him to recommence driving duties. On 29 August 2013 his return to work plan was upgraded to include driving.

6. The applicant submitted a claim for compensation for anxiety and depression on 4 December 2013. On 9 April 2014, the respondent accepted liability under section 14 and section 16 of the SRC Act for the compensable condition. Any claim for time off work as a result of the injury (pursuant to section 19) had to be supported by medical evidence from a suitably qualified medical practitioner. The decision-maker set out incidents that had occurred at the applicant’s work and the opinions of Dr Barrett, psychiatrist, and Dr Lalji, general practitioner, and concluded:

   It is considered, based on this evidence that the events set out above created a state of affairs in which you perceived you were being unfairly treated by your employer and that this perception contributed to your condition to a significant degree.

7. One of the matters the decision-maker referred to was the applicant’s perception of the competence of the rehabilitation provider.  That provider was terminated “due to Mr Henry’s negative opinion of provider” on 13 November 2013 and a new rehabilitation provider was engaged.[1]

   [1] Chronology of Shane Henry’s Case Management, T10, page 52.

8. On 27 January 2015, the applicant applied for compensation for permanent injury/impairment for medical epicondylitis and tendonitis of the right elbow and adjustment disorder. The primary decision made on 2 April 2015 dealt only with the claim for adjustment disorder.

   CONSIDERATION OF THE EVIDENCE AND FINDINGS

9. The primary decision made on 2 April 2015 relied on the opinion of Dr Smith who saw the applicant on 18 March 2015.  Dr Smith stated:

   In summary, it is my opinion that Mr Henry has substantially recovered in regard to an Adjustment Disorder with Mixed Depressed and Anxious Mood.  I am of the opinion that further psychiatric treatment is not required.

10. Dr Smith assessed the applicant’s impairment under Table 5.1 of the Guide as 5%, which does not meet the 10% threshold.  The applicant told Dr Smith that he does not drink alcohol on Sunday, Monday or Tuesday and consumes two to three scotch whiskies the rest of the week.

11. The reviewable decision also relied on Dr Smith’s opinion.  The decision-maker referred to reports from Dr Barrett and Dr Teoh, psychiatrists, dated 4 February 2014 and 3 March 2014 respectively.  Those reports did not contain permanent impairment assessments.

12. Dr Chaudhary first saw the applicant on 12 July 2014.  He also saw him on 29 September 2014. His reports about those consultations were before the Tribunal.  He provided a short report dated 10 June 2016 which corrected his report of 14 July 2014.  He advised that the applicant did not lose his driver’s licence due to a drink driving offence.

13. In his report dated 14 July 2014, Dr Chaudhary’s diagnosis was adjustment disorder and depressed moods.  He stated that the applicant’s prognosis “remains doubtful” and “will depend on his response to counselling and psychotherapy”.

14. The applicant had a second surgery to his right elbow on 12 August 2014.  It involved right ulnar nerve neurolysis at the elbow and right transosseous tennis elbow repair.  Dr Kirkham, orthopaedic surgeon, carried out the surgery.

15. Dr Chaudhary maintained the diagnosis of adjustment disorder and depressed moods in his report of 30 September 2014.  He recorded the following comments made by the applicant:

    ·The people at work are trying to get rid of him.

    ·He had an elbow operation in August which cost him $4,000.

    ·His wages have been cut to 75% because his injury is chronic.

    ·He has been going through a rehabilitation process. Somebody always rings him but has nothing to offer him.  “This makes Shane very angry and upset.”

    ·He was critical of his case worker.  He had been asking for a meeting for the last four years which has not been arranged.  He thought he could meet somebody to get some guidance about what sort of work he will be offered but is not sure how he will go in the future.

    ·They have been offering him jobs for which he is not trained and they do not offer him opportunities to train.

16. Dr Chaudhary had apparently spoken to the rehabilitation officer and had recommended that the applicant “will require regular psychiatric reviews for cognitive behaviour therapy and counselling” at one, two or three weekly intervals for four to six months.  Dr Chaudhary considered that the applicant was “currently capable for suitable duties…4 hours a day for three days week”. “He will continue to perform permanently modified duties.” 

17. Dr Chaudhary also said in that report:

    ·“Prognosis can’t be forecast at present and will depend on the progress he makes over a period of time.  My guess is this will be 4-6 months.” 

    ·“[H]e will require ongoing counselling and cognitive behaviour therapy with regular psychiatric consultation which will help improve his ability to cope with day to day living and manage his affairs.” 

    ·His medication includes one Aropax 20 mg twice daily.

    ·“His temperament has improved but he has not improved his capacity to work.  He will need further rehabilitation in a vocational sense and a suitable job has to be found for him by the Rehab Management.”

18. Dr Amjad became the applicant’s general practitioner from 23 June 2014.  A Patient Health Summary recording the consultations with Dr Amjad and other doctors from the same practice from 23 June 2014 until 14 January 2015 was before the Tribunal.[2] 

    [2] T38, pages 147 to 155.

19. Dr Canaris, consultant psychiatrist, saw the applicant on 25 August 2015.  In his report, Dr Canaris recorded that the applicant ‘drinks “bucket loads” up to five to six scotches a day occasionally consuming up to a bottle.  He tries not to drink at least three days a week.  The alcohol seems to relax him and help him sleep.’  Dr Canaris recorded that the applicant was taking Efexor XR 150 mg daily for the past 12 months since seeing Dr Chaudhary who he consulted once a fortnight.  Dr Canaris diagnosed an emerging Chronic Major Depressive Disorder arising from his chronic pain and attendant disability in regard to his right elbow injury. He assessed the applicant as demonstrating 15% Whole Person Impairment (WPI) according to the Guide.

20. Subsequently, Dr Smith was provided further material to review on two occasions and provided reports dated 13 October 2015 and 5 February 2016.  Dr Smith did not see the applicant for the purpose of preparing those reports. 

21. In his report dated 13 October 2015, Dr Smith said the following.  His opinion that the applicant had a response to his work-related injury experiencing an Adjustment Disorder with Depressed and Anxious Mood “accorded well with that of Dr Chaudhary.  I however deemed his condition to have substantially resolved”.  In relation to Dr Canaris’s diagnosis of Major Depressive Disorder, Dr Smith commented “[c]ertainly at the time of my examination such a diagnosis was not appropriate”. He maintained his opinion expressed in his 18 March 2015 report.

22. In his report dated 5 February 2016, Dr Smith addressed the evidence about the applicant’s alcohol consumption. He summarised that history including the history taken by Dr Canaris recorded above.  The other information was:

    ·A summonsed record of Dr Lalji in 2008 noted a history of the applicant consuming four to five scotches per night.

    ·In February 2014, the applicant had advised Dr Barrett, psychiatrist, that he has two standard drinks, three nights per week.

    ·The applicant told Dr Teoh, psychiatrist, in March 2014 that he has a social history of drinking with no evidence of substance abuse.

    ·The applicant told Dr Chaudhary in July 2014 that he drinks alcohol four nights per week, mostly scotch, having one to two nips to half a bottle sometimes.  He reported getting drunk once a week but never falls or loses his balance.  Dr Chaudhary recorded that the applicant lost his licence twenty years ago for drink driving without a licence. Dr Chaudhary corrected that in his later report.

23. Dr Smith considered that the applicant’s pattern of alcohol consumption would meet the definition of Alcohol Abuse Disorder, despite the different amounts reported to different doctors.  In his opinion:

    in all probability alcohol even of itself may be a significant contributor to the emergence of anxiety and depressive symptoms.  Indeed, it is my clinical practice not to finalise a diagnosis such as an Adjustment Disorder with depressed and anxious mood if alcohol abuse (an Alcohol Abuse Disorder) is prevalent.

24. Dr Smith estimated that the applicant’s “alcohol induced behaviour would account for at least 10% of the impairment when under the influence of alcohol”.   He considered that consuming alcohol would compound the symptoms of anxiety and depression related to the Adjustment Disorder.

25. Dr Smith repeated his opinion that the symptoms related to the compensable condition “had substantially resolved”.  He noted that the Diagnostic & Statistical Manual of Mental Disorders (Fifth Edition) (DSM V) emphasised that once the stressor or its consequence have terminated, the symptoms do not persist for more than an additional six months.  Dr Smith said:

    Mr Henry’s main cause of his Adjustment Disorder was related to difficulties he experienced in the workplace.  He is no longer working.  By his own account when left alone, he copes quite well and on the balance of medical probability, his Adjustment Disorder with mixed emotional features has now resolved.

26. Dr Smith concluded:

    In my opinion and in the absence of alcohol, Mr Henry does not reach the 10% whole person impairment threshold.

    In my opinion, at worst Mr Henry’s whole person impairment is less than 10% WPI.  At worst he experiences a whole person impairment of 5% predominantly related to a modicum of psychological symptoms that have been outlined and which in particular are prevalent when he consumes alcohol.

27. The applicant’s Traffic Record Report has no record of a driving offence related to alcohol. The Tribunal accepts that is correct and that Dr Chaudhary’s report was incorrect, as he acknowledged. 

28. Having taken a history of the applicant’s consumption of alcohol being two to three scotch whiskies four days a week, Dr Smith did not consider that relevant to his assessment of the applicant’s whole person impairment in his first report.

29. Despite having the report of Dr Canaris and summonsed records from Dr Chaudhary, and recording the applicant’s report to Dr Canaris of his consumption of alcohol, Dr Smith did not identify or discuss the applicant’s alcohol consumption as a factor relevant to his consideration of the applicant’s whole person impairment in his second report. He only considered it in his third report in response to specific questions about it by the respondent.  The applicant denied reporting the level of alcohol consumption recorded by Dr Canaris. 

30. Despite having recorded the applicant’s alcohol consumption as set out above, Dr Canaris did not consider it relevant in his consideration of the applicant’s psychiatric condition in his report.

31. The Tribunal finds that although there are differences in the records of the alcohol consumption recorded by doctors, taking into account the evidence of the applicant and his wife and the reports to doctors, it accepts that the applicant does not drink alcohol three nights a week.  It also does not accept that his consumption has been as Dr Canaris recorded it.  Given the apparent lack of importance given by both Dr Canaris and Dr Smith to the applicant’s alcohol consumption until Dr Smith addressed the issue in his third report at the request of the respondent, as set out above, the Tribunal considers Dr Smith’s claims about its impact on the applicant are exaggerated. Although Dr Canaris was cross-examined vigorously about the level of the applicant’s alcohol consumption, he stood by his opinion. 

32. The Tribunal prefers the evidence of Dr Canaris and Dr Chaudhary to that of Dr Smith in any event.  The Tribunal does not accept that the applicant’s history since seeing Dr Smith in March 2015 is consistent with that doctor’s opinion that the applicant had substantially recovered and that further psychiatric treatment is not required. The applicant has continued to see Dr Chaudhary once a fortnight for the past two years and continues to take medication. 

33. Dr Smith’s opinion was narrowly focussed. He cited the emphasis in DSM V about symptoms persisting for no more than six months after the stressor or its consequences have terminated.  As set out above, he related the applicant’s difficulties to his workplace and opined that because he was no longer working and copes quite well, his condition had resolved.  With respect to Dr Smith, he gives insufficient consideration to the consequences of the applicant’s physical injury on his life, including two surgeries to his right elbow, his chronic pain and reduced capacity to drive or to work and the obvious consequential frustration the applicant has felt.  The applicant’s life has been fundamentally changed because of that accident.  The Tribunal accepts the applicant and his partner’s evidence about his withdrawal from social activities. 

34. In contrast to Dr Smith, the Tribunal finds that Dr Canaris’s diagnosis of an emerging Chronic Major Depressive Disorder “arising from his chronic pain and attendant disability in regard to his right elbow injury” identifies the cause of the applicant’s psychiatric condition accurately.

35. Dr Canaris assessed the applicant as having 15% WPI.  Table 5.1 of the Guide relevantly provides the criteria for 10% and 15% WPI:

10

Despite the presence of more than one of the following employee is capable of performing activities of daily living without supervision or assistance:

·     reactions to stresses of daily living with minor loss of personal or social efficiency

·     lack of conscience directed behaviour without harm to community or self

·     minor distortions of thinking.

15

Any one of the following accompanied by a need for some supervision and direction in activities of daily living:

·     reactions to stresses of daily living which cause modification to daily living patterns

·     marked disturbances in thinking

·     definite disturbance in behaviour.

1. While the Tribunal prefers the evidence of Dr Canaris, it does not accept his assessment of 15% WPI because that assessment includes “a need for some supervision and direction in activities of daily living”.  Notes to Table 5.1 provide relevantly:

   2. Supervision means the immediate presence of a suitable person, responsible in whole or in part for the care of the employee.

   3.  Assistance means the provision of assistance to the employee in performing the activities of daily living by a suitable person, responsible in whole or in part for the care of the employee.

   4.  Direction means the provision of direction to the employee by a suitably qualified person, responsible in whole or in part for the care of the employee.

   5 Suitable person means a person capable of responsibly caring for the employee in an appropriate way.

   6. Suitably qualified person means a person with the necessary qualifications, experience and skills to provide appropriate direction to the employee.  Such persons include medical practitioners, nursing staff and clinical psychologists.

2. Examples of “Activities of daily living” are set out in Figure 5-A of the Guide:

Activity	Examples
Self care, personal hygiene	Bathing, grooming, dressing, eating, eliminating.
Communication	Hearing, speaking, reading, writing, using keyboard.
Physical activity	Standing, sitting, reclining, walking, stooping, squatting, kneeling, reaching, bending, twisting, leaning, carrying, lifting, pulling, pushing, climbing, exercising.
Sensory function	Tactile feeling.
Hand functions	Grasping, holding, pinching, percussive movements, sensory discrimination.
Travel	Driving or travelling as a passenger.
Sexual function	Participating in desired sexual activity.
Sleep	Having a restful sleep pattern.
Social and recreational	Participating in individual or group activities, sports activities, hobbies.

1. The Tribunal does not accept that the prompting and reminders the applicant’s partner provides to him satisfies “direction” and “suitably qualified person” as defined.  Further, many of the reminders provided do not involve her “immediate presence” as required by the definition of “supervision”, such as writing notes for him to remind him to perform every-day tasks. 

2. Based on the evidence before us, including the evidence of Dr Canaris, the applicant and his wife, we find that the applicant satisfies 10% WPI.  The evidence set out above shows that he has reactions to stresses of daily living with minor loss of personal or social efficiency, and “a marked disturbance in thinking” as Dr Canaris found, which satisfies the third criterion “minor distortions of thinking”.  The Tribunal accepts Dr Canaris’s opinion that if the applicant’s partner did not provide the structure to his life that she does, that “would herald a major decline in his functioning to the point that professional intervention would be necessary”.  However, the applicant does not satisfy the 15% criteria for the reasons set out above.

3. The Tribunal finds that the applicant’s level of impairment is 10% in accordance with the Guide.

   DECISION

4. For the above reasons, the reviewable decision is set aside and substituted for that decision is the decision that the applicant has a 10% whole person impairment resulting from adjustment reaction with mixed emotional features and therefore the respondent is liable to pay the applicant compensation pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.....................................[sgd]...................................

Associate

Dated 16 November 2016

Date(s) of hearing	14 June 2016
Counsel for the Applicant	B McManamey
Solicitors for the Applicant	Capital Lawyers
Counsel for the Respondent	M Snell
Solicitors for the Respondent	Australian Government Solicitor