John Winter and Comcare

Case [2014] AATA 811

[2014] AATA 811

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/4310

Re

John Winter

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President P E Hack SC and Dr M Sullivan, Member
Date 30 October 2014
Place Brisbane

That part of the decision under review that determined the applicant’s degree of permanent impairment is set aside and a decision substituted that the degree of permanent impairment is 10%.

That part of the decision under review that determined the applicant’s non-economic loss is varied such that the score under Table B3.3, Recreation and Leisure Activities, is
3 points in lieu of 2 points. That part of the decision under review is otherwise affirmed.

........................[Sgd].............................................

Deputy President P E Hack SC

CATCHWORDS

COMPENSATION – permanent impairment – whether a “need” for supervision and direction – decision set aside

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 28

CASES

Re O’Connell and Comcare [2012] AATA 532

Comcare v O’Connell [2013] FCA 111

SECONDARY MATERIALS

Guide to the Assessment of the Degree of Permanent Impairment, Ed 2.1

REASONS FOR DECISION

Deputy President P E Hack SC and Dr M Sullivan, Member

30 October 2014

Introduction

  1. Mr John Winter is an employee of Centrelink. As a consequence of threats made to him, and assaults on him, by customers of that agency he developed a severe psychological ailment. Comcare has accepted liability to pay him compensation, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), in respect of that injury.

  2. This application concerns one element of the compensation payable to Mr Winter, compensation for a permanent impairment. It involves a narrow question arising under the statutory guide for assessing the level of permanent impairment – does Mr Winter have a need for some supervision and direction in his activities of daily living.

  3. For the reasons that follow, we have concluded that he does not need that supervision although the consequence of that conclusion is that the decision under review ought be set aside. Why that is so will become apparent.

    The legislation

  4. No detailed analysis of the legislation is required. Comcare has accepted that


    Mr Winter’s condition satisfies the definition of "injury" in the SRC Act. It is, then, liable to pay him compensation in accordance with the SRC Act in respect of that injury.

  5. The type of compensation in issue here is that for permanent impairment. The term "impairment" is defined in s 4 of the SRC Act to mean:

    …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.

    "Permanent" is defined in the same section to mean "likely to continue indefinitely". Compensation for permanent impairment is dealt with in Division 4 of Part II of


    the SRC Act. Section 24, within that Division, imposes the liability to pay compensation to an employee where an injury to the employee results in permanent impairment. The section also…

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AGLC
John Winter and Comcare [2014] AATA 811
Case
[2014] AATA 811
Decision Date

CaseChat Overview and Summary

The case of John Winter and Comcare involved a claim for permanent impairment compensation following a psychiatric injury sustained by Mr Winter in the course of his employment with Centrelink. Mr Winter was diagnosed with major depressive disorder and anxiety, and his condition deteriorated significantly after a period of initial improvement. Comcare accepted liability for the aggravation of Mr Winter's psychiatric condition, but disputed the extent of his permanent impairment, particularly in relation to the need for supervision and direction in activities of daily living.

The primary legal issue before the court was whether Mr Winter had a "need" for supervision and direction in his daily activities, as this would determine the appropriate percentage of permanent impairment. According to the Guide to the Assessment of Non-Economic Loss, a 25% impairment requires a need for some supervision and direction, whereas a 30% impairment requires a need for supervision and direction. The court had to assess the medical evidence and determine whether Mr Winter's condition warranted a 25% or 30% impairment rating.

The court examined the evidence provided by three consultant psychiatrists: Dr Jenkins, who had been treating Mr Winter; Dr De Leacy, called by Mr Winter; and Dr Jetnikoff, called by Comcare. Dr Jenkins and Dr De Leacy agreed that Mr Winter required some supervision and direction, while Dr Jetnikoff disagreed. The court found that the critical issue was whether Mr Winter had a need for supervision and direction, as defined in the Guide. The court referenced the approach to the interpretation of "need" in Table 5.1, which was adopted by the Tribunal and approved on appeal, stating that the need for supervision and direction must be assessed based on the overall effect of the injury on the individual and the nature of their interactions with others.

After considering the evidence, the court concluded that Mr Winter did not have a need for supervision and direction in his activities of daily living, as his condition allowed for independent functioning on some days. The court set aside the decision that Mr Winter had a 15% degree of permanent impairment and ordered Comcare to reassess the case in light of the court's findings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Division 2 of Part 1 of the Guide deals with the assessment of non-economic loss. It requires an assessment of a score from 0 to 5 for each of pain, suffering, loss of amenities (comprising mobility, social relationships, and recreation and leisure activities), other loss and loss of expectation of life. There is considerable agreement between the parties about the applicable scores so we will consider the detail of Division 2 of Part 1 when we come to consider what remains in issue.Background Mr Winter was born in 1961. He has been employed by Centrelink since 2003 after an earlier career as a police officer and later as a self-employed franchise operator. He commenced working in the Maryborough office of Centrelink in 2006. After some threatening workplace experiences, Mr Winter attended his general practitioner in February 2012 for treatment. He was at that time unable to attend his workplace and did not return to work until November 2012. In March 2012, he was referred to a rehabilitation provider and thereafter saw a psychologist. He commenced seeing Dr Scott Jenkins, his treating psychiatrist, in late March 2012. Dr Jenkins diagnosed major depression and anxiety. Since then Dr Jenkins has seen Mr Winter approximately monthly. He has prescribed psychiatric medications and used interpersonal psychotherapy to treat Mr Winter. In June 2012, Mr Winter was seen by Dr Nicholas Jetnikoff, a consultant psychiatrist, for the purposes of assessing his fitness for duty. Dr Jetnikoff concluded that Mr Winter was then unfit for work and that he would remain so for some months. Mr Winter commenced a gradual return to work in the Hervey Bay office of Centrelink in November 2012 and, over a period of approximately six weeks, returned to full-time duties. By early March 2013 Dr Jenkins was of the view that he was fit to complete his normal duties without any restriction. From August 2013 Mr Winter’s mental health declined steadily. He took sick leave in October 2013 and has not returned to work since. Mr Winter lodged his claim for compensation in April 2012. Liability was accepted for conditions described as "aggravation of major depressive disorder, recurrent episode" and "aggravation of anxiety state" in a determination made on 31 August 2012. The date of injury was determined to be 13 February 2012, the day on which Mr Winter first consulted his general practitioner. Then, in January 2013, solicitors acting for Mr Winter lodged the claim for permanent impairment compensation. Mr Winter saw Dr Eric De Leacy, a consultant psychiatrist, in April 2013 in relation to that claim. On 16 May 2013, Comcare determined that Mr Winter had a 15% degree of permanent impairment for his accepted psychiatric condition. It was then accepted that Mr Winter had reactions to stressors of daily living which caused modifications to daily living patterns together with the need for some supervision and direction in activities of daily living. For the various components of economic loss Comcare made these assessments:·pain 3·suffering 3·mobility 0·social relationships 2·recreation and leisure activities 1·other losses 0

Evidence

Evidence Before The Court

Comcare contends as well that the non-economic loss assessments ought be,·pain 3·suffering 3·mobility 0·social relationships 2·recreation and leisure activities 2·other losses 0Accordingly, the parties are at odds about the appropriate scores for mobility, social relationships, and recreation and leisure activities.The medical evidence We had the benefit of evidence from three consultant psychiatrists – Dr Jenkins, who has been treating Mr Winter since March 2012, Dr De Leacy, called by Mr Winter, and Dr Jetnikoff, called by Comcare. Dr De Leacy concluded that Mr Winter needed some supervision and direction in activities of daily living and that the other criteria for a 25% impairment rating were satisfied. Dr Jenkins agreed with Dr De Leacy's assessment. Dr Jetnikoff had a different view. He did not consider that Mr Winter had a need for supervision. We need then to examine the evidence of each of them. Dr Jenkins provided a report dated 11 March 2014.[2] He said this:[2]Exhibit 5.3. Mr Winter does react to stresses of daily living as a result of his condition resulting in modification of daily living patterns. Specifically he has a combination of depressed mood with marked irritability and outbursts of anger as well as a wide variety of anxiety symptoms. This has restricted his capacity to function in social settings and he also has restricted his lifestyle due to these symptoms preventing him from situation [sic] which exacerbate the condition. This includes avoiding crowds are unfamiliar places.4. Mr Winter’s thought processes are affected because of his conditions. I would consider them to be marked disturbance in thinking. His anxiety, suspiciousness, and irritability have resulted in behaviours and thoughts which would be conspicuous. He is distrusting and argumentative as well as avoiding social contact where possible.5. Mr Winter's behaviour is also affected and this involves a definite disturbance. His anger at times is uncontrollable and put others at risk. His anxiety also prevents him from some activities of daily living.6. Mr Winter does need some supervision. Specifically he needs regular supervision in stressful situations and as assisted by his wife in this by [sic] per her statement. He will also need some direction regarding his medication and assistance regarding attendance for treatment.7. Mr Winter does require daily medication to avoid any future hospitalisation.8. Mr Winter is at risk of loss of self control both due to panic and irritability.9. At times Mr Winter’s capacity to control other his panic symptoms or anger would place him or others at risk.10. Mr Winter does not need supervision and direction in a confined environment.In his oral evidence Dr Jenkins agreed with the view of Dr De Leacy as to the level of Mr Winter’s permanent impairment and disagreed with that of Dr Jetnikoff. He was asked to comment on examples that Dr Jetnikoff had given of Mr Winter’s autonomy – driving, catching an aeroplane, then a taxi and attending the appointment with Dr Jetnikoff – and said this:[3] I feel that autonomy is not simply about the mechanics of mobility. For me autonomous means the capacity to attend to any activities that would be a normal part of someone’s life when they weren’t suffering from major depression with anxiety. So in Mr Winter’s case previously to his complaint, he was able to work. He was able to drive independently without having to have somebody to help him control his irritability of other drivers. He was able to socialise. He was able to shop and go places and for pleasure. Which he’s unable to do now. He was able to make decisions. Look after finances. Deal with the complexities of life in a way that (indistinct) would usually be considered appropriate. Most of the things that are missing. Whether someone can drive a car or not is not a measure of the severity of their psychiatric condition.[3] Transcript page 57, lines 12-23.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mrs Winter provided two witness statements[14] detailing the care she provides for her husband. She refers to her ringing him to wake him (obviously not on the days that he drives her to her work), leaving breakfast for him and dealing with utilities and suchlike on his behalf. By July 2014 when her second statement was compiled Mr Winter "required increasing assistance". Nevertheless she noted that on some days, albeit irregular and infrequent, he managed to function independently. She continued:[15]By this I mean, on some days, he will remember to take his medication; will remember and be motivated shower; will be able to carry out a conversation without becoming aggressive or unreasonable. He may also be able to attend appointments on his own if he really puts his mind to it.In her oral evidence Mrs Winter referred to the fact that she had to "keep an eye" on his prescriptions to ensure that he always had his medications on hand. She also has the practice of making contact with him by telephone or text when he is driving by himself[16] however Mr Winter also initiates contact with her on those occasions if she does not make contact.[17][14]Exhibits 3 and 4.[15] Exhibit 4, paragraph [9].[16]Transcript page 37, lines 7 – 10.[17]Transcript page 41, lines 3 – 4.Consideration The critical issue is whether Mr Winter has a need for some supervision and direction in activities of daily living. We are not satisfied that he does. In this context, and by reference to the Guide, supervision means the immediate presence of a suitable person; that is, a person capable of responsibly caring for Mr Winter in an appropriate way, responsible in whole or in part for his care. Direction means the provision of direction to Mr Winter by a person with the necessary qualifications, experience and skills to provide appropriate direction to him. The submissions of the parties drew attention to this approach to the interpretation of “need” in Table 5.1 adopted by the Tribunal (constituted by Mr Simon Webb, Member) in Re O’Connell and Comcare:[18]These are all matters of degree. When determining whether an injured employee needs some supervision and direction in activities of daily living, it is necessary to assess the overall effect of the injury on the particular person as well as the character and content of the interaction that person has with others who are suitably qualified to provide direction in activities of daily living. For a person who is only mildly affected, encouragement to do something or not, or to do it differently may not meet the test of ‘some’ ‘direction’, whereas for a person who is badly affected, encouragement may well rise to a higher level of guidance and instruction, thereby meeting that test. Each case will turn on its own facts and must be assessed on its merits.That approach was approved by Jagot J on appeal.[19] In the same case Her Honour noted:The word “some” must be given meaning as it is the factor that distinguishing a 25% permanent impairment from a 30% permanent impairment, the latter requiring “a need” for supervision and direction rather than “a need for some” supervision and direction. In this context “some” means “to a certain degree or extent”[18] [2012] AATA 532.[19] Comcare v O’Connell [2013] FCA 111 at [27].