Jenkins and Comcare
[2004] AATA 1215
•19 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1215
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1670
GENERAL ADMINISTRATIVE DIVISION ) Re BRIAN JENKINS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr M Thorpe, Member Date19 November 2004
PlaceSydney
Decision The decision under review is set aside. In substitution for the decision set aside the Tribunal decides that Mr Jenkins be granted a 15 percent whole person impairment and receive appropriate payments under section 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
[Sgd] Dr M Thorpe
Member
CATCHWORDS
COMPENSATION – assessment of permanent impairment – question before the Tribunal as to the percentage whole person impairment to which the Applicant is entitled under the Safety, Rehabilitation and Compensation Act 1988 – assessment of medical evidence – consideration of minor, marked or severe disturbance in thinking – Applicant does not qualify for either 20 or 25 percent level of impairment – decision under review set aside.
Safety, Rehabilitation and Compensation Act 1988 – sections 24 and 27
REASONS FOR DECISION
19 November 2004 Dr M Thorpe, Member 1. This is an application by Mr Brian Jenkins for assessment of permanent impairment. On 1 February 1993 liability was accepted in respect of “generalised anxiety disorder and major episode of depression” deemed to have been sustained on 18 June 1992. Australian Defence Services (A.D.S.) terminated his services 8 April 1994 on the grounds of his inability to be rehabilitated. . The applicant applied under subsection 29(1) of the Administrative Appeals Tribunal Act 1975 for a review by the Administrative Appeals Tribunal of the decision. A claim for Permanent Injury and a Non Economic loss questionnaire was completed 5 March 2003 and on 6 August 2003 Mr Jenkins was granted a 10 percent whole person impairment for which he received appropriate payments under section 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
2. Comcare is required to assess permanent impairment in accordance with - provisions of the Guide to the Assessment of Permanent Impairment - Safety, Rehabilitation and Compensation Act section 28, and its provisions are binding on the Administrative Appeals Tribunal section 28(4).
3. The question before the Tribunal is a simple question- The percentage whole person to which Mr Jenkins is entitled under the Act?
4. Mr Jenkins was born on 3 June 1941. He worked uninterrupted with Australian Defence Industries (“A.D.I”), commencing as an Apprentice Fitter and machinist in 1956 until his termination in 1994. There was a minor incident with his back in the 1970’s without repercussion.
5. In 1992 A.D I. was restructuring and at that time Mr Jenkins was working as a Shift Foreman. This work involved him in negotiations and action concerning retrenchments. Apparently there was an air of uncertainty in the workplace and workers were regularly being made redundant.
6. When called into the Manager’s office on the afternoon 18 June 1992 for a meeting with the General Manager and Personnel Managers, he was accused of being obstructive and being generally unhelpful concerning the retrenchments. As reported by Dr Synnott the managers blamed him and started “getting into him”. He became upset and broke down and after attendance by a doctor he was sent home.
7. He was subsequently referred to a psychiatrist and over the next two years he spent some months in hospital. An attempt to return to work in 1994 was unsuccessful and he was medically retired in 1994 on the grounds of his inability to be rehabilitated. My task is to assess his permanent impairment according to the Comcare guide Table 5.1 as at the time of this application.
8. Mr Jenkins in evidence said that Dr Lehman was the initial treating psychiatrist, and Dr Klug became the treating psychiatrist in 1995 after the retirement of Dr Lehman. Mr Jenkins has continued monthly visits to his psychiatrist and continues to take anti depressant medication. His evidence was that he is unable to handle pressure and that he feels inferior and is unable to handle authority. He has good days and bad days and has poor concentration. He goes to bed to get away from it all. His wife supervises his medication. His sleep is getting worse and he has a lot of dreams. He admits that he withdraws and that he has low self esteem. He said that the reaction of the grandchildren was that “Poppy in a bad mood”. He still drives a car and uses a mobile phone. He visits a friend at the army camp once a week. He looks after his aunt, whom he visits once a fortnight. He makes pieces of furniture for his five grandchildren. His hobbies include contact with the Veterans’ Hockey Association and he manages the team when they go touring on carnivals, approximately once every six months.
9. Under cross examination he said he does some shopping and goes to the Workers Club once a fortnight for dinner. He has driven to Bathurst accompanied by his wife for hockey. He is able to change his clothes, shave and take out the garbage. He has recently acquired a lathe and he uses a computer, typing letters himself. He enjoys being with the hockey players who are of his age group. Mr Jenkins said that without his wife he would not cope.
10. Mrs Jenkins said that he saw very little of his previous work mates and if she has friends to the home, Brian walks out. His own children and grandchildren come to visit. He has good and bad days but he does not like a lot of people. She said he was normal before 1992. She said she supervised his medication and also the picking up of his clothes. She advised about shaving and showering. He is able to make his own coffee. He has one particular friend and that he also participates on hockey carnivals.
Medical Evidence
11. Concurrent medical evidence was given by Dr Klug and Dr Lewin and their reports were available to the Tribunal. Medical reports from Dr Lehman dated 26 March 1994 and Dr Synnott dated 7 July 2003 were also available to the Tribunal. Dr Lehman in 1994 considered Mr Jenkins psychiatric condition as Generalised Anxiety Disorder and a Major Episode of Depression. At that time Dr Lehman considered he was unfit for work and that unless he achieved some major progress towards returning to employment he faced a not particularly optimistic future. This is by way of background information and it is now known that Mr Jenkins was retired medically unfit in 1994. The diagnosis of “generalised anxiety disorder and major episode of depression” as determined by Comcare is not before the Tribunal. Dr Klug on 8 June 1995 considered that without rigorous rehabilitation Mr Jenkins ran the risk of continuing to be chronically dysfunctional. Again this is by way of background information. My task however is to make an assessment of Mr Jenkins impairment as of the date of application.
12. Dr Klug on 17 February 2003 assessed the degree of permanent impairment according to Table 5.1 at 20%. He considered the Table as superficial and a flawed way of assessing psychiatric impairment. He considered Mr Jenkins has non-pervasive depression of his mood with more severe bouts from time to time. In evidence he said Mr Jenkins was chronically and moderately/severely dysfunctional. His state had improved in the sense that he had not been back into hospital for many years but his life was moulded around his symptoms. Mr Jenkins was able to function at times ostensibly reasonably well but that he was in a severely compensated state.
13. Dr Lewin on 25 February 2004 assigned an impairment rating of 15 under Table 5.1. He did not consider Mr Jenkins manifested marked disturbance of thinking (for example there was no sign of melancholia or psychotic disturbance) and he also noted the absence of more marked or definite disturbance of behaviour. Dr Synnott 7 July 2003 made an overall percentage whole person impairment of 20% in accordance with Table 5.1. In his report, Dr Synnott apropos of the requirements of the Table, did not address the requirements of Table 5.1 to indicate how he came up with a 20% level of impairment He wrote that the reasons for his opinion were discussed in his report. His report does not in fact address the specific requirements of Table 5.1, in particular reactions to stressors of daily living, marked disturbance of thinking and definite disturbance in behaviour. He reported no indication of any major psychiatric disorder, that he gave a clear, coherent history and despite the occasional difficulty with exact dates there were no other problems. There was no evidence of any cognitive impairment. Dr Lewin also said there were no signs of paranoia or delusional thinking. Dr Klug agreed with the diagnosis of the Dr Lehmann of a generalised anxiety disorder and depression.
14. The real thrust of Permanent Impairment arose during the concurrent evidence, in particular the interpretation of 15% and 20% percent under Table 5.1.
15%:ANY ONE of the following accompanied by a need for some supervision and direction in activities of daily living:
·reactions to stressors of daily living which cause modifications of daily patterns
·marked disturbance in thinking
·definite disturbance in behaviour
20%ANY TWO of the following accompanied by a need or some supervision and direction in activities of daily living:
·reactions to stressors of daily living which cause modification of daily patterns
·marked disturbances in thinking
·definite disturbance in behaviour
15. In simple language, did Mr Jenkins satisfy one of the requirements only to provide a 15% degree of impairment or did he satisfy two of the requirements to provide a 20% degree of impairment?
16. Dr Klug was of the opinion he easily satisfied 20%. There was a definite disturbance in behaviour and there was a moderate (and not marked) disturbance of thinking. Dr. Lewin was of the opinion there was no definite disturbance of behaviour and no marked disturbance of thinking and that he better satisfied 10% impairment. Ms Henderson’s argument for the respondent was in fact directed toward at a 15 % permanent impairment. In fact in evidence Dr Lewin agreed that reactions to stressors of daily living caused modification of daily living patterns which equates with 15 Percent impairment. There was no contest between the parties about the fact that there is evidence of some need for supervision and direction in activities of daily living. To achieve a 20% impairment Mr Jenkins would have to satisfy either a:
·definite disturbance in behaviour.
·Marked disturbance of thinking
An impairment rating of 25% which includes both of the above was not before the Tribunal.
17. There was different medical evidence before the Tribunal that Mr Jenkins had a marked disturbance of thinking. Dr Synnott did not address this question directly in his report, Dr Klug at best said there was a moderate disturbance in thinking and Dr Lewin that there was minor disturbance in thinking.
19. Dr Klug said there were three levels of disturbance in thinking:
“Minor distortions of thinking
Marked disturbance in thinking
Severe disturbance in thinking”.
20. He said that Mr Jenkins disturbances were moderate which he then categorised as a marked disturbance of thinking. Dr Klug said there was a problem with his categorisation in that the way the terms are used clinically, marked really means severe but in terms of the table it actually meant moderate. Dr Lewin was able to accept 10% impairment with examples of minor loss of personal and social efficiency for example being reminded to shave or to change his underwear. He did not think there was any loss of conscience directed behaviour without harm to community or self. Dr Lewin said there were minor distortions of thinking were readily observed to the anxiety symptoms and pattern of preoccupation and worry that was the key feature of the case. Going to the 15% impairment Dr Lewin did not accept a marked disturbance of thinking, the reason being there was no sign of morbid disturbance of functioning of his thinking. For example, melancholic symptoms of depression or in terms of anxiety the sorts of responses that one sees to an acute panic attack.
21. Dr Lewin sought guidance from the Tribunal concerning definite disturbances of behaviour to interpret what it means. It seemed to Dr Lewin that there were many examples in Mr Jenkins’ history of mild to moderate disturbances of behaviour which occur intermittently. When pressed by the Tribunal Dr Lewin’s judgement was that Mr Jenkins did not display definite disturbances of behaviour and the reason that he reached that conclusion were the examples that he gave. Dr Lewin gave as examples avoidance symptoms such as avoidance of various social situations but definite disturbances of behaviour in his mind meant things like violent outbursts in the house or grossly inappropriate behaviour in social settings which did not appear to be the case.
22. Dr Klug said there was a definite disturbance in behaviour. He considered his behaviour was very significantly different to his normal behaviour prior to being unwell, socially, occupationally in the sense that I think he has been incapable of working, is incapable of doing things around the house let alone working and his level of social withdrawal and his day to day activities are dramatically different to what they were.
Considerations
23. The parties were agreed that the first requirement reactions to stressors of daily living which cause modification of daily living patterns was satisfied. This provides for a 15% level of impairment. Dr Lewin had originally indicated a level of impairment of 10% but he was prepared to go as far as 15%. Mr Gollan advanced that in fact Mr Jenkins could satisfy the 25 percent impairment or even the 30 percent impairment. Rather Mr Gollan asked for 20 percent impairment relying on a definite disturbance in behaviour, but for abundant caution he included “marked” disturbance in thinking.
24. The critical issue before the Tribunal is the interpretation of the terms, “marked” and “definite” as used in Table 5.1. The Tribunal was aware of the difficulties interpreting the language of the impairment table but advised both parties to do as well as they could. Ms Henderson submitted that it was appropriate the terms be construed in accordance with the way psychiatrists normally use these terms She referred to Comcare v Amorebieta (1996) 66 FCR 83, Jenkinson J where Jenkinson J held that the expression “normal range of movement” in Table 9.6 when used in reference to the human musculoskeletal system be used in the sense in which it is understood by medical practitioners. Mr Gollan preferred the dictionary definitions.
25. Ms Henderson submitted that his Honour’s approach apply equally to Table 5.1 and therefore the expressions “marked disturbance in thinking“ and “definite disturbance in behaviour” should be construed in accordance with the way psychiatrists normally use these terms.
26. Mr Gollan held that there can be nothing more definite, than in accordance with the dictionary definition, of definite. Mr Gollan submitted that because the doctors know it is present and not going to improve, that it has been present for 10 years and so is chronic and we know the kind of thing that sets it off and the reaction. The Oxford English Dictionary definition of definite is: “Having fixed or exact limits; clearly defined; determinate, fixed, certain: exact, precise”.
27. I am not convinced that Mr Jenkins satisfies the requirement for definite disturbance of behaviour. Dr Klug said there was a change in behaviour and he thought that was a definite disturbance in his behaviour. Dr Lewin was of the opinion there were many examples in Mr Jenkins’s history of mild to moderate disturbance of behaviour which occur intermittently, and it was his judgement that Mr Jenkins did not display definite disturbances of behaviour.
28. As Ms Henderson submitted Dr Klug did not have reference to the normal clinical use of those terms in psychiatry but referred to other matters including:
“(a) Mr Jenkins was very different to how he was before
(b) He is incapable of work
(c) He is capable of doing things at home
(d) He is socially withdrawn”.
29. I agree that social withdrawal does not in itself constitute a “definite disturbance in behaviour”. In fact Mr Jenkins is still capable in a number of social activities including his veterans’ hockey, his family, and his contact with his aunt and his friend on a regular basis. He still drives a car. He is not capable of his former work but is capable of activities in his workshop. I agree completely with Dr Klug that there has been a change in his behaviour but cannot accept his argument that the fact that the change is present means or can be interpreted as that it is definite for the purposes of Table 5.1.
30. I do not consider there is a marked disturbance in thinking. I agree with Dr Lewin that there is no sign of any morbid disturbance of functioning of his thinking. There were no melancholic symptoms and acute panic episodes. All psychiatrists agreed there were no cognitive or psychotic features. I appreciate Dr Klug’s attempt to classify disturbances of thinking into minor, marked and severe. He then settled for moderate which he interpreted as marked as far as Table 5.1. My understanding was at the end of the day, that clinically he considered the disturbance of thinking as moderate. Dr. Klug in answer to Ms Henderson said “if I were just doing clinical assessment outside of this description of level of impairment I would use the term marked in a different way because a marked disturbance of thinking in a clinical sense is the most severe form of thinking disorder and I don’t think that’s the case with this table”.
31. My conclusion from Dr Klug’s evidence was that Mr Jenkins disturbance in thinking was moderate and this taken in conjunction with Dr Lewin’s opinion is insufficient to satisfy the requirement for marked disturbance in thinking. The Table was difficult to interpret and I have been persuaded by Jenkinson J that the interpretation of the both the terms definite and marked be or interpreted in the sense in which they are understood by medical practitioners. The dictionary definitions of these terms were also considered. In particular I was unable to accept “predictable” as meaning “definite”.
32. Mr Gollan referred to a CMR Rehabilitaiton report 11 July 1995 (T26). The purpose of the report was to assess the prospects of rehabilitation. The report provided insight into Mr Jenkin’s medical condition in 1995 but as submitted by Ms Henderson, my task was to judge Mr Jenkins as at today rather than as at 1995.
33. Mr Gollan submitted that he sought to disturb only one of the ratings for non-economic loss, in respect of mobility. The non-economic loss questionnaire completed by Mr Jenkins 5 March 2003 (T30/75) indicates:
“Section 2: Loss of Amenities
Mobility
2.1which one of the following descriptions best fits the effect your condition has on your ability to get around:
No or minimal restrictions on mobility þ
2.2 Explanation, additional comment:
Have fear of travelling alone in case of panic attacks or when depressed”
34. Section 5: Doctor’s Section of the non-economic loss questionnaire was signed by Dr Klug
“5.1 Is there likely to be any reduction in life expectancy?
Yes ¨ No þ
5.2 -------
5.3Are the answers given by the claimant in sections 1 to 3 of this form consistent with your knowledge of the implied contentions and findings of the determination?
Yes þ No ¨”
Unfortunately Dr,. Klug was not tested concerning mobility when giving evidence.
35. Mr Gollan submitted that wording of the question was somewhat misleading in that it created the impression that mobility (which concerns your ability to move around in your environment, your home, shopping etc) creates the impression that it is being considered as an orthopaedic condition. He referred to Comcare v Emery (1993) ALD 147 dealing with the scope of concept of “attributes of daily living”, and the requirement that consideration also be given to psycho-social aspect of the authority.
36. Ms Henderson submitted the assessment should be made when an optimal medication and at a stage when the condition is reasonably stable.
37. Mr Jenkin’s condition is reasonably stable and it is a number of years since he has required hospitalisation. There is nothing before me to indicate any restriction to his mobility. If at times he becomes morose and slow or tired and is withdrawn because of his depression and the fact that he may take to his bed, does not mean he has an altered or impaired mobility.
38. I am therefore persuaded that the zero mobility assessment should remain.
Conclusion
39. Mr Jenkins satisfies one of the requirements of the 15 percent level of impairment for Table 5.1, namely reactions to stressors of daily living which causes modifications of daily patterns. He does not satisfy the requirements for marked disturbance in thinking or definite disturbances in behaviour and therefore does not qualify for either 20 or 25 percent level of impairment. There is no alteration to the zero impairment for mobility.
Decision
40. The decision under review is set aside. In substitution for the decision set aside the Tribunal decides that Mr Jenkins be granted a 15 percent whole person impairment and receive appropriate payments under section 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Thorpe, Member
Signed: Neil Glaser
AssociateDates of Hearing 19 and 20 August 2004
Date of Decision 19 November 2004
Counsel for the Applicant Matt Gollan
Solicitor for the Applicant Damien Hill,
W G McNally & Co Solicitors
Counsel for the Respondent Miss Rhonda Henderson
Solicitor for the Respondent Clare Guilfoyle,
Australian Government Solicitor
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