Kingsbury and Australian Postal Corporation (Compensation)

[2016] AATA 346

Kingsbury and Australian Postal Corporation (Compensation) [2016] AATA 346 (27 May 2016)

Division	GENERAL DIVISION
File Number(s)	2014/6432
Re	Karen Kingsbury
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Deputy President Bernard McCabe
Date	27 May 2016
Place	Brisbane

The decision under review is set aside. In substitution, the Tribunal finds the applicant has a whole person impairment rated at 10%. The decision is remitted to the respondent for further assessment.

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Deputy President Bernard McCabe

Catchwords

COMPENSATION – liability for permanent impairment compensation – whether whole person impairment is less than 10% - applicant satisfies at least two descriptors – decision under review set aside and remitted to the respondent for further assessment

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14, 24, 27

Secondary Materials

Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1

REASONS FOR DECISION

Deputy President Bernard McCabe

27 May 2016

1. Ms Karen Kingsbury experienced an injury to her right shoulder and neck at work in 2007. She was employed by Australia Post at the time, and her employer accepted liability for that condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) on 27 April 2007. She took a long time to recover. She says she developed psychiatric symptoms as a consequence of the pain that persisted over a long period. She has not worked since January 2014.

2. Australia Post accepted liability for the applicant’s psychological condition on 10 June 2015 but it denies liability for permanent impairment compensation under ss 24 and 27 of the Act. By the time the matter was brought on for hearing, the sole issue in dispute between the parties was over the percentage of whole person impairment (WPI) Ms Kingsbury experienced as a consequence of her psychiatric condition. If the percentage WPI was less than 10%, the applicant was not entitled to succeed in her claim for permanent impairment compensation: s 24(7).

   Ms Kingsbury’s evidence

3. The applicant provided two statements (exhibits 2 and 3) and gave evidence at the hearing. In her first statement dated 18 June 2015, she described experiencing significant impairment. She said:

   … I used to enjoy reading and going to the movies, I used to walk a lot and visit family and friends. Since this date, I continue to suffer from psychological symptoms every day such as excessive tiredness, panic attacks, general anxiety, insomnia and depression. These symptoms have affected my ability to enjoy the things I used to love as I can no longer concentrate while reading or watching TV and movies. I do not go out or visit people anymore due to my anxiety. I tend to get sweaty palms, increased of heart rate (sic), stressed and anxious when I know I have to meet up with friends or interact with people I don’t know. I have trouble enjoying the company of my three grandchildren which makes me feel like a failure as a grandmother. I cannot lift or play with my grandchildren nor can I assist my daughter in caring for them the way other grandparents do with their grandchildren. I feel like my injury has ‘robbed’ be (sic) of this privilege.

   With regards to everyday living, such as personal care and hygiene, I have trouble putting on my bra, washing my hair, washing my body, brushing my hair, using a hairdryer, getting dressed, I avoid wearing button-down closed (sic) and wear slip on shoes. My husband has to assist me with these things and would often dry my back after showering. With regard to housekeeping, I have to vacuum in stages and bits and pieces, I have difficulty hanging out the washing, I cannot take the rubbish out and have difficulty dusting. I cannot drive far distances due to the pain in arms, lack of grip and general anxiety associated with driving.

4. Ms Kingsbury agreed in her statement dated 4 February 2016 that she had gotten better but insisted she still occasionally became tearful and had “bad days sometimes”. She also referred to weekly panic attacks and described one attack that occurred last Christmas. When she was questioned about that attack in cross-examination, she seemed less sure about the details, but she did not resile from her evidence about small but regular attacks. She also said in her statement she still did not socialise widely and had “not been able to get back into hobbies, like reading or the movies”. She said she also experienced suicidal ideation on occasions, although she agreed she may not have mentioned that to Dr Varghese.

5. Ms Kingsbury was asked about her continued lack of interest in reading that was reported to Dr Varghese and Dr Apel. Ms Blackford-Slack, for the respondent, asked the applicant about evidence from Dr Lewis, an occupational physician Ms Kingsbury had seen in 2012. Dr Lewis reported the applicant experienced “minimal problems” with reading: exhibit one at p 1038. Ms Kingsbury was also asked about a vocational assessment carried out in 2013 which recorded the applicant as saying “she enjoys reading”: exhibit one at p 1102. The applicant denied that she exaggerated her disinterest in reading for the purposes of these proceedings. Ms Kingsbury was also asked about her psychiatric history. Ms Blackford-Slack pointed out the applicant had not mentioned in her statements any psychiatric symptoms she experienced in connection with the death of her mother. She also failed to mention those symptoms to Dr Apel or Dr Varghese, the medical experts who interviewed her for the purpose of these proceedings. Ms Kingsbury said she had mentioned the symptoms to her treating doctor, Dr New, and she would certainly have mentioned them to Dr Apel in particular if he had asked about them.

6. Ms Kingsbury was not a completely reliable historian. I am satisfied she was prone to tailor her evidence in some respects: for example, in relation to her loss of interest in reading, which she has failed to consistently describe in the past, and in relation to her psychiatric history which she did not adequately disclose to the experts retained for the purpose of preparing reports in these proceedings.

   What the medical experts say

7. Dr Varghese is a consultant psychiatrist. He saw Ms Kingsbury and prepared two reports at the request of the respondent. Dr Varghese opined in his report dated 10 April 2015 that the applicant suffered from major depression. He said the condition was not stable at the time but he expected it would stabilise after treatment. He said he expected the applicant would experience 5% WPI. When Dr Varghese saw the applicant again in November 2015, he was satisfied the major depression was in remission. He pointed out in his subsequent report (exhibit 7) that “Major Depression is not a permanent condition as the natural history is one of remission”: at p 9. He suggested Ms Kingsbury may experience chronic mild dysthymia but he said:

   the only psychiatric disorder currently present can be conceptualised as an Adjustment Disorder with the adjustment being a reaction to her physical injury.

8. Dr Varghese went on to say:

   The Adjustment Disorder is a relatively minor psychiatric condition and of itself ought not to be the source of significant disability. In as much as Adjustment Disorder is a reaction to chronic physical disability, which is presumably work-related, the Adjustment Disorder can also be regarded as long term. The degree of disability from Adjustment Disorder ought not to exceed 5%.

9. Dr Varghese did not record the applicant reporting suicidal ideation when he saw her on the second occasion. Mr Black, counsel for the applicant, pointed out Dr Varghese’s report (exhibit 7) recorded the applicant continued to experience panic attacks and was not up to entertaining visitors although she was able to visit friends. (Dr Varghese suggested in his oral evidence that the applicant might be conditioned to avoidant behaviour as a consequence of the major depression; it was not necessarily a feature of the adjustment disorder.) Dr Varghese also recorded the applicant as saying “Not yet” when asked about her interests. (In his oral evidence, Dr Varghese said he expected the applicant would be able to resume reading, which was one of her principal interests. He also pointed out a loss of self-esteem and the loss of interest in activities like reading are not typically features of an adjustment disorder – although those developments might be explained by dysthymia.)

10. I also heard from Dr Apel, a consultant psychiatrist engaged by the applicant. He prepared two reports – exhibit 4 dated 25 May 2015 and exhibit 5 dated 8 October 2015. He gave oral evidence at the hearing. Dr Apel originally opined the applicant suffered from adjustment disorder with depressed mood that led to a 15% WPI: exhibit 4. He said the condition was permanent. He saw the applicant in October 2015 and agreed the condition had improved a little compared to the last occasion he saw her. In his oral evidence, he said he was untroubled by the applicant’s earlier failure to disclose her symptoms in connection with the death of her mother. Dr Apel confirmed those symptoms were likely to be transient and made no contribution to her current presentation.

11. Dr Apel observed a relatively minor improvement in the applicant between the interviews in February and August 2015, while Dr Varghese said the applicant presented markedly differently between February and November 2015: exhibit 7 at p 3. Dr Varghese noted the applicant appeared to be much better by the time of the second interview; it is possible that the difference of opinion between Drs Apel and Varghese is at least partly explained by her different presentation at the interviews in August and November. Dr Varghese certainly regarded the improved functioning as evidence that supported his opinion the applicant only experiences a 5% WPI – a conclusion which was consistent with his understanding of the relatively minor impact of an Adjustment Disorder. At the hearing, Dr Apel agreed the applicant had improved further but that her condition had now stabilised at 10% WPI.

    Does the applicant suffer a 10% whole person impairment?

12. I have already explained I must be satisfied the applicant suffers a whole person impairment of at least 10% in order to qualify for permanent impairment compensation: s 24(7).

13.     % WPI

14.     Description of level of impairment

15.     5

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

17.      

·           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.

18.     10

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

20.      

·           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.

1. Impairment as a consequence of psychiatric conditions is dealt with in chapter 5 of the Guide to the Assessment of the Degree of Permanent Impairment. Table 5.1 applies here. It reads in part:

2. It is accepted the applicant is able to perform activities of daily living without supervision or assistance. But does the applicant suffer more than one of the descriptors in the portion of the table I have quoted?

3. Mr Black pointed out Dr Varghese and Dr Apel both recorded the applicant’s claim she still experienced occasional panic attacks. If these claims are accepted, the applicant can be said to experience “minor distortions in thinking”. While I have expressed some concerns about the applicant’s reliability as an historian, I am persuaded on balance that her reports to the doctors ought to be accepted at face value. In any event, I note there is also evidence of the applicant continuing to experience suicidal ideation when she saw Dr Apel.

4. Mr Black also pointed to evidence suggesting a “loss of social efficiency”. I am not persuaded the applicant’s reported disinterest in reading is sufficiently reliable to be considered in this regard. (I note Dr Varghese’s advice that it was not typically a product of adjustment disorder in any event.) But Ms Kingsbury has given consistent evidence of a diminished social life. She is currently undertaking some social activities but there has been an impact. While I have expressed concerns about the applicant’s tendency to tailor her evidence on some points, her evidence on this point has been relatively consistent. I am satisfied at least two of the descriptors in the table can be satisfied which suggests there is a 10% WPI.

   Conclusion

5. The decision under review is set aside. I decide in substitution that the applicant’s permanent impairment is rated at 10% under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment. The decision is remitted to the respondent for further assessment in accordance with these reasons.

18.     I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

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Associate

Dated 27 May 2016

Dates of hearing

26 June 2015; 15 February 2016

Counsel for the Applicant

Solicitors for the Applicant

Mr M Black

Slater and Gordon

Counsel for the Respondent

Ms Blackford-Slack