John Winter and Comcare
[2014] AATA 811
•30 October 2014
[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
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.
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.
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
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.
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 deals with the mechanism for determining the amount of that compensation. Comcare is obliged to determine the degree of permanent impairment, expressed as a percentage, under the provisions of the approved Guide. The Guide to the Assessment of the Degree of Permanent Impairment is dealt with by s 28 of the SRC Act. That section allows Comcare to prepare a written document setting out criteria to be referred to in order to determine the degree of permanent impairment of an employee, criteria to be referred to in order to determine the degree of non-economic loss suffered by an employee, and methods by which the degree of permanent impairment and the degree of non-economic loss so determined may be expressed as a percentage. The Guide is required to be approved by the responsible Minister.
The Guide operates on the basis of whole person impairment with separate chapters dealing with a variety of functions. Within each chapter descriptors or criteria are prescribed to meet increasing percentages of whole person impairment. Chapter 5 of the Guide deals with psychiatric conditions. Table 5.1 sets out the various criteria for psychiatric conditions in this way:
% WPI Description of level of impairment 0 Reactions to stresses of daily living without loss of personal or social efficiency
and
Capable of performing activities of daily living without supervision or assistance.
5 Despite the presence of 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.
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.
20 Any two 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 of daily living patterns
> marked disturbance in thinking
> definite disturbance in behaviour.
25 All 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 of daily living patterns
> marked disturbances in thinking
> definite disturbances in behaviour.
… [the Guide continues to 90%]
The definitions in the notes to Table 5.1 are particularly relevant. They read:
Notes to Table 5.1
…
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.
Finally, reference need be made to the introductory parts of Chapter 5 which lists these activities of daily living but notes that the examples are not exhaustive.
Figure 5-A: Activities of daily living
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. Sleep Having a restful sleep pattern. Social and recreational Participating in individual or group activities, sports activities, hobbies.
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
Mr Winter sought reconsideration of this decision. By a reviewable decision of
29 July 2013 Comcare affirmed the original decision. These proceedings were commenced on 28 August 2013.
The matters in issue
Mr Winter contends that his condition warrants an assessment of 25% on the basis that he had a need for some supervision and direction in activities of daily living and that he satisfied each of the other three criteria required to be shown to warrant an assessment of 25%. Moreover he contends that his non-economic loss assessments ought be,
·pain 3
·suffering 3
·mobility 2
·social relationships 4
·recreation and leisure activities 3
·other losses 0
The case for Comcare has varied over time. At the conclusion of all of the evidence, and having regard to the evidence of Dr Jetnikoff, Ms Dowsett, counsel for Comcare, accepted that what remained in issue was whether Mr Winter had a need for some supervision and direction in activities of daily living.[1] The presence of each of the other three criteria was accepted although they had earlier been in contention. The case for Comcare was that there was not a need for supervision and direction. That being so, it was said, the correct decision was that the level of permanent impairment was 10% because each of the 15%, 20% and 25% levels imposed a need for some supervision. Thus, Comcare submitted, its decision ought be set aside and replaced with a decision determining permanent impairment at 10%.
[1]Transcript page 108, lines 4 – 5.
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 0
Accordingly, 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.
Dr De Leacy saw Mr Winter in April 2013 (at a time when Mr Winter was working fulltime) and provided a report dated 24 April 2013.[4] He said this about the level of
[4]Exhibit 1, pages 69 – 76.
Mr Winter’s permanent impairment,[5]
[5]Exhibit 1, pages 74 – 75.
I consider that Mr Winter does have a degree of permanent impairment on the Comcare scale in accordance with the 2.1 Edition of the Guide.
He does require supervision and direction. He would not be able to cope with everyday life and work without being guided by his wife. She supervises him in his daily life and has to "restrain" him from becoming aggressive. She has to calm him down. He has a tendency to react and may react adversely and, is quite worried about what might happen should he lose his temper and act impulsively. She gives him direction. He is under the care of a psychiatrist who also gives him direction. He has reactions to stressors which have resulted in modification of his daily routine in order to remain calm and not react adversely to stress. He has had to develop techniques where he utters mantras and go through set thought processes and strategies that he has learned from his mental health professionals.
…
In reviewing the Table the current status would equate to an impairment rating of 25%. This is applicable even though he is working; he is working with great difficulty and is extremely anxious that if another event occurred he may react in an adverse way and is quite frightened of what the consequences might be.
Dr De Leacy spoke at greater length about the need for supervision in his oral evidence. He said,[6]
Drawing from your own experience, what would you foreshadow might happen if he did not have his wife's supervision and not be on an even keel? What do you foreshadow might happen?---I've got the word "restraint" at the top of there because I don't think the word on this document means that she would physically restrain him but would verbally restrain him or calm him down from becoming aggressive. She might help him redirect his thinking on a number of occasions. He tends to have a paranoid ideation, he tends to feel that everything is a threat, and she would act in some way to reassure him in this way. In addition she would most likely be helping - reminding him to take his medication. She may also be quite likely discouraging him from over-indulgence in alcohol. She would be doing all these things to try and moderate his behaviour and his thinking.
In your view is it necessary for a person like Mr Winter to have that?---Well, I believe so in this case. I believe that the presence of his wife at home would help him control his distress and impulsivity, because her calming words could assist; and I might add that she doesn't have to be with him all the time to do this. Given the fact that he is going to work and only seeing her at night this doesn't preclude the fact that this influence that she may have on him isn't constant.
Let’s just stay with that notion for the moment. When you go to the definitions that are to be used in association rather with table 5.1, there is a definition of "supervision" which means:
The immediate presence of a suitable person responsible in whole or in part for the care
How do you reconcile what you have just said with the words used in the definition "immediate presence"?---Well, for part of each day there is this, that she has - there is the immediate presence of his wife. She'd be present with him most nights. Well, almost all nights, so that that's immediate. But there will be other times if he's going to work she won't be there obviously; but there is certainly immediate presence when he's at home with her.
[6]Transcript page 71, line 41 to page 72, line 27.
Dr Jetnikoff provided a report dated 31 January 2014[7] in which he dealt with the issue of permanent impairment in this way:[8]
[7]Exhibit 7.
[8]At pages 18 – 19.
I do not regard Mr Winter requiring a need for some supervision, or direction in activities of daily living, as per the notes and use of the table 5.1. I do not think Mr Winter requires the immediate presence of someone and that he is capable of autonomous action. I do not consider he needs direction as defined as the provision of instruction by suitably qualified person in whole or in part of the care of the employee and the amount of contact he has with his Psychiatrist would not, in my mind, satisfy the requirement.
The fact that Mr Winter's wife works full-time (he has been managing at home alone) and that he has in fact over that period worked full-time for most in [sic] the last 12 months, indicates to me that he is capable of autonomous action. I cannot separate Mrs Winter's comments from many similar concerns raised by spouses who wish for the partners to make better choices when they are away at work. I do not believe that Mr Winter would not eat, or get dressed for example, without Mrs Winter's encouragement. The most contemporary example was Mr Winter attending my assessment in Brisbane. He was required to fly alone, catch a taxi and attend in a timely manner and then arrange to return home with equal autonomy. This is Mr Winter's capability of executive functioning and independence being demonstrated, in my opinion.
Mr Winter has a significant condition and I do acknowledge, in fact, that he does have reactions to stressors of daily living with loss of personal and social efficiency, some lack of conscious-directed behaviour about harm to the community and self, and minor distortions of thinking but I do not believe he needs supervision, or direction. He still drives a vehicle alone and can travel to and from his residence without issue and was capable of maintaining competitive employment.
I do understand that he has been assessed at a minimum of 15% by Comcare, but I cannot agree with that assessment either.
Dr Jetnikoff expanded on his opinion of Mr Winter’s autonomy in his oral evidence.
He said:[9]
How did you reach your assessment of his degree of autonomy?---Mr Winter's degree of autonomy was based on his self-report on the day, my assessment of how he presented previously and to trust in those as much as that he can trust, my impression of him by his own report of his functioning in non-work areas which was detailed in my report from (indistinct). And those are areas where he would be - no direction or supervision was clearly associated with functioning at those times. Travel is a major factor; travel requires high sensitive functioning, vigilance to keep oneself safe and others when they're driving; it's an example of autonomy. But it's not the only one that I'd use. There are many, and they are detailed in my report. If you want me to go through them point by point I'm happy to do that.
[9]Transcript page 90, lines 10 – 20.
Dr Jetnikoff also contrasted preference and need. He said that his assessment of
Mr Winter's impairment was not affected by reports that Mr Winter avoided phone calls and would not walk his dog in the neighbourhood. His views were illustrated by this passage of his cross-examination:[10]
[10]Transcript page 95, line 8 – page 96, line 14.
MS SCOTT-MACKENZIE: If it be the case, Dr Jetnikoff, that in fact the way that his anxiety and major depressive disorder plays out on a day-to-day basis, that one of the most obvious features of his illness is that he avoids contact with people and avoids leaving the house unless he can be reasonably certain that he's not going to bump into neighbours and so on. So to give you an example he said in evidence that he takes his dogs for a walk but he doesn't do that in the immediate surrounds of his home; he drives to a nearby lake. That's one example. I'll give you some other examples that were given in evidence by both Mr Winter and Mrs Winter. Mr Winter has difficulty dealing with his caseworker, for example, and has now authorised his wife to act as liaison. She also included the words that she saw her role as an "interpreter" because often there were miscommunications or misinterpretations. Those are some examples. He refers all telephone calls to her. In other words what I'm saying to you is there is evidence before the tribunal that one of the ways that this impairment plays out is that Mr Winter does not like to associate and has difficulty associating with people generally. If that is the case then how does that affect your assessment?---It doesn't.
Why?---Because he doesn't - what we're talking about for the most part appears to be preference; it's not a need.
You say that he is making a choice not to have contact with people; that that choice is not affected at all by the psychiatric disorders that he has. That's what you're saying?---Of course it's affected, but it's not a need. He can if needed be able to do it, therefore he is capable of doing it if needed - in evidence.
Yes, and similarly he can drive and he can eat and he can do all those mechanical things?---He can also cook, prepare food and shop.
I want you to focus on this idea that when you are making these assessments you also have to have regard to the psychosocial impact on the functioning of a person in carrying out activities. I hear you to be saying that it's your view that Mr Winter is choosing not to have contact with other people, that it might be affected by his condition but he could make the alternative choice and everything would be okay. Is that what you're telling the tribunal? ---Well, that's a little Pollyanna-ish. I didn't actually say it quite like that.
But ---
What do you think would happen if he made the other choice?---I think there would be a transitional process; I think eventually he may be able to have some functioning. But the point I am trying to make is that I don't think he does need the supervision; I think he could do all of those things with that evidentiary basis with his statement and what he has given to me which I put in the report.
In other words you're telling us that he could do those things, and when you say that you're disregarding potential risks, for example, for aggression? ---I've already raised that. I went through my handwritten notes in 2014 about his potential risk for a period of time when he stopped seeing the psychiatrist; and he's advised me at the time that this happens infrequently, perhaps for about 10 minutes on occasions and not every time he saw people. He just walked away. That's a demonstration of control here.
The evidence of Mr Winter and Mrs Winter
Mr Winter spoke of his disengagement with people other than his wife, his lack of motivation to participate in the types of sporting activities he earlier engaged in and his lack of motivation. On average three days a week, his day commences with him driving his wife to her employment, a trip of about 15 minutes in total. His wife usually makes lunch and leaves it for him to eat. Without that, he considers that he would "not eat correctly".[11] His wife generally, but not invariably, is responsible for having his prescriptions filled[12] and tends to deal with his caseworker to avoid misunderstandings that have occurred in the past.[13] He sees Dr Jenkins, whose practice is in Bundaberg, on a regular basis and mostly drives by himself to those appointments, a round trip of
240 kilometres. He has an interest in furniture restoration and memorabilia collecting. For the purposes of those pastimes he visits the local antique shop occasionally, trades on the Internet and has visited an acquaintance for the purpose of viewing that person’s collection of memorabilia.[11]Transcript page 18, line 7.
[12]Transcript page 19, lines 19 – 25.
[13]Transcript page 19, line 44 to page 20, line 26.
Mr Winter carries a mobile telephone which is used to contact his wife and, on occasions, his sister. He tends not to receive calls and gives his wife's telephone number to those who might wish to contact him.
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].
On the view we take of the evidence there is no doubt that Mr Winter finds it helpful to have assistance and guidance from Mrs Winter but the evidence falls short of demonstrating a need for even some supervision. It is important to bear in mind that
Mrs Winter has a fulltime job and is away from Mr Winter during working hours on weekdays. Mr Winter is able to manage at home by himself. His wife may find it desirable to contact him from time to time to see how he is going but there is no evidence that it has ever been necessary for her to return home urgently or to arrange for someone else to attend to Mr Winter. Mr Winter is able to drive himself, to organise his time and to leave his home independently. He has regularly driven himself to Bundaberg and back, a round trip of some 240 kilometres, to see Dr Jenkins. He travelled to Brisbane by air and then by taxi to see Dr Jetnikoff (and returned). As Dr Jetnikoff said, that demonstrated executive functioning and independence.
There is evidence that Mr Winter is anxious about interaction with others but he was able to attend the Tribunal, and be examined and cross-examined without any evident distress. He gave evidence of occasions when he found himself becoming angry but was able to use appropriate techniques to reduce arousal. The trip to Brisbane to see Dr Jetnikoff no doubt involved a great number of interactions with others yet Mr Winter managed it alone and without any reported difficulty.
Dr Jetnikoff’s evidence highlighted the important distinction between preference and need. Mr Winter no doubt prefers to have his wife dealing with those who might want to speak to him but Mr Winter’s evidence and his account of events to Dr Jetnikoff demonstrates that he is quite able to deal with people alone when necessary to do so, for example, when shopping to buy alcohol, milk or other necessities.[20] Dr Jetnikoff draws a convincing picture of Mr Winter as a man with moderately severe major depression and anxiety who does find life more difficult and prefers to avoid certain stressful activities but who can live autonomously with the support of his wife. That support, as it seems to us, is indistinguishable from the normal encouragement and support within a spousal relationship.
[20] The example given by Dr Jetnikoff in Exhibit 7, page 11.
We are then not satisfied that Mr Winter has a need for some supervision and direction in activities of daily living. That being so his level of permanent impairment does not rise above the 10% level. Comcare’s earlier decision ought, to that extent, be set aside and a decision substituted that Mr Winter has a whole person impairment of 10%.
There remains the question of the appropriate scores in the assessment of non-economic loss. Mobility, social relationships, and recreation and leisure activities are in issue. They all come under the rubric "Loss of Amenities" dealt with in Section B3 of Part 1 of Division 2 of the Guide
So far as mobility is concerned, Mr Winter says his condition warrants 2 points; Comcare says that it warrants no points. Mobility is said to refer to "the… ongoing ability to move around in [the employee’s] environment" and includes "walking, dressing, being a passenger, using public transport".
The description for 2 points is,
Mobility reduced, but remains independent of others both within and outside the home. Can travel but may require rest breaks, special seating, or other special treatment.
The evidence does not suggest that Mr Winter’s mobility is reduced or that he requires any type of special treatment when travelling. The evidence is that he has no restrictions on mobility, thus warranting an assessment of zero points.
"Social relationships" is defined as referring to the "ongoing capacity to engage in usual social and personal relationships". Comcare assessed 2 points, described in these terms,
Relationships confined to immediate and extended family and close friends, but unable to relate to casual acquaintances.
Mr Winter says that he warrants 4 points, described as,
Social contacts confined to immediate family.
Again we consider Comcare’s assessment to be accurate. Mr Winter described contacts he made outside his immediate family including contacts he makes for the purposes of pursuing his interests in furniture restoration and memorabilia collecting. He has some, albeit limited, contacts outside his immediate family.
Finally, "recreation and leisure activities" refers to the "ongoing ability to maintain customary recreational and leisure pursuits". Comcare awarded 2 points, described as,
Interference to activities reduces frequency of activity, but is able to continue.
Is able to follow alternatives.
Mr Winter says that he warrants 3 points,
Unable to continue with pre-injury level of activity. Alternative activity possible.
The latter seems to us to be a more apt description of Mr Winter’s recreation and leisure activities. His evidence is that he no longer engages in the activities that he used to engage in – he is no longer engaged, as he was, in local sports clubs, and he no longer engages in bushwalking. He does, though, engage in alternative activities, driving and taking the dog on excursions. We think the evidence warrants a rating of 3 points.
In the result we would set aside that part of the decision under review that determined that Mr Winter had a degree of permanent impairment of 15% and substitute a decision that the degree of permanent impairment is 10%. We would vary the non-economic loss decision to give a score of 3 points on Table B3.3, recreation and leisure activities, but otherwise affirm that part of the decision.
Our tentative view is that the limited degree of success would not warrant an order for costs in Mr Winter’s favour. If he intends to seek an order for costs he ought lodge and serve any submissions within 14 days. Comcare may lodge any submissions in reply within 14 days thereafter. We will determine any issue of costs on the basis of those submissions.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr M Sullivan, Member ............................[Sgd]........................................
Associate
Dated 30 October 2014
Dates of hearing 31 July 2014 and 1 August 2014 Counsel for the Applicant Ms S Scott-Mackenzie Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent Ms C Dowsett Solicitors for the Respondent Sparke Helmore
2
0