Klemke and Comcare
[2005] AATA 321
•8 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 321
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/84
GENERAL ADMINISTRATIVE DIVISION ) Re TANIA LOUISE KLEMKE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr J.W. Constance, Senior Member
Dr M.D. Miller AO, Member
Date8 April 2005
PlaceCanberra
Decision The decision of Comcare made 12 November 2002 affirming the decision that Comcare is not liable to pay compensation to Ms Klemke pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (Cth) is affirmed. ..............................................
CATCHWORDS
COMPENSATION – permanent impairment – psychiatric condition – whether impairment – whether impairment is permanent – whether further medical treatment may reduce impairment – whether work injury was a temporary aggravation of underlying condition – whether impairment resulting from compensable injury is less than 10% whole person impairment – impairment nor shown to be permanent – no impairment of at least 10% attributable to compensable injury – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 24, 27
Australian Postal Corporation v Bessey [2001] FCA 266
Comcare v Amorebieta (1996) 66 FCR 83
REASONS FOR DECISION
8 April 2005 Mr J.W. Constance, Senior Member
Dr M.D. Miller AO, Member
1. Ms Klemke is seeking a review of Comcare’s decision refusing her application for compensation for permanent impairment arising from an injury she sustained on 26 April 2001.
2. For the reasons set out we have decided to affirm Comcare’s decision.
FACTS
3. We are satisfied as to the following facts on the balance of probabilities. Unless otherwise stated the findings are based on the evidence of Ms Klemke.
4. Ms Klemke was born on 11 June 1971 and is 33 years old.
5. Ms Klemke joined the Australian Public Service in July 1987 and apart from a period between 1995 and 1997 continued in that employment until she resigned on 20 June 2001. Her resignation came about as a result of particularly distressing rumours being spread about her in her workplace by a group of fellow employees. Ms Klemke suffered a depressive disorder as a result of learning of these rumours.
6. On 20 September 2001 Comcare accepted that the depressive disorder was contributed to in a material degree by Ms Klemke’s employment.[1]
[1] Section 37 document, T18.
7. As it is an issue between the parties as to the effect (if any) of Ms Klemke’s medical history prior to April 2001 on her subsequent condition, it is necessary to set out our findings as to factors relevant to her mental condition.
8. Between the ages of 7 and 10 years Ms Klemke was sexually assaulted by a neighbour. Her parents separated when she was about 10 years old, reconciled about 4 years later and separated again about 2 years after the reconciliation. Ms Klemke had an abortion when she was 14 and lived with her first partner from age 14 for 6 years. Her partner became violent towards her during this relationship.
9. In 1987, at the age of 16, Ms Klemke deliberately cut her wrists. She now describes this as “a silly incident” and says that she did not seek medical assistance at the time.
10. Ms Klemke had a relationship of several years with the father of her son born in 1992 and her daughter born in 1994. There was some violence in this relationship and she separated from her partner in 1994 as a result of his infidelity. Ms Klemke formed a new relationship from which her third child was born in 1997. She separated from the child’s father the following year.
11. Ms Klemke suffered periods of depression after the birth of each of her children. She took medication for depression after the birth of her third child. It was not clear on the evidence as to how long she took this medication but it appears that it was for no longer than 6 months.
12. On 26 February 1997 Ms Klemke was admitted to hospital following her having taken a deliberate overdose of prothaiden.[2] On 16 June 1997 Ms Klemke was admitted to hospital as a result of a deliberate overdose of paracetamol and allopcininol.. At the time of the second admission she was diagnosed by Dr Hockey as suffering “depression, possibly qualifies as post-natal”.[3]
[2]Exhibit R1.
[3] Exhibit R1, 19/6/97.
13. In her evidence Ms Klemke said that after June 1997 until the incident at work in April 2001 she was managing her children and her job well and was not taking medication for any type of depressive condition nor was she suffering from depression. Having heard Ms Klemke give evidence and taking into account the histories she has given to others we cannot accept her evidence in this regard. In giving evidence at the hearing Ms Klemke was confused as to the dates and sequence of events. We do not suggest that she was deliberately misleading the Tribunal.
14. We are satisfied that immediately prior to her learning of the rumours in April 2001 Ms Klemke was suffering from depression and was on medication (Cipramil) for this condition.
15. In his report of 30 January 2002 Dr Stevens stated:
“Ms Klemke stated that she had some depressive symptoms in 1999. Her relationship broke down and she reported that she started to find things difficult…..She said she had some times when her concentration was not at its peak but she did not think this happened very often and her memory was unchanged. Ms Klemke stated that she saw her doctor because she was feeling very low and he prescribed Ciprimil. Ms Klemke said she continued with her medication on her doctor’s advice and after the incident at work the dose was doubled.[4]
[4] Exhibit A3, T32, p.5.
16. In his report of 19 November 2001[5] Dr Saboisky recorded that “[s]he mentioned that she had been on Cipramil for 6 months prior to the incident and that she had always had some form of depression since the birth of her children.”
[5] Exhibit R4, T25.
17. We accept that Dr Saboisky and Dr Stevens have accurately recorded what Ms Klemke told them. It is more likely that Ms Klemke’s recollection of events was accurate at the times she gave these histories than when she was giving evidence before us.
18. In cross-examination Ms Klemke was asked whether she had attempted to kill herself and her children by carbon monoxide poisoning some time prior to April 2001. She denied any such attempt but said that she had thought about this action and had also thought about driving her car into a tree. She was unclear as to the timing of these thoughts. In The Canberra Hospital notes relating to Ms Klemke’s admission on 18 February 2002[6] there is an entry “also carbon monoxide O/D – 2 years ago.” There is also a reference in the Casemix Report for the same time which reads “prior suicidal ideation - carbon monoxide O/D attempted w. children in car 2 years ago.”[7] We accept that these are accurate records of the history given by Ms Klemke and are satisfied that at the very least she had serious suicidal ideation and thoughts of harming her children in the period between June 1997 and April 2001.
[6] Exhibit R4.
[7] Exhibit R1.
19. We accept Ms Klemke’s evidence that following her learning of the rumours which had been spread about her she was shocked and became depressed. This clearly caused her great suffering and had a profound effect on her life and was a substantial factor (and perhaps the sole factor) in her decision to resign from her employment in June 2001.
20. In February 2002 Ms Klemke was admitted to The Canberra Hospital following an attempted suicide by taking an overdose of a prescription drug combined with excessive alcohol.
21. In her statement filed with the Tribunal Ms Klemke described her present condition as follows:
“I still currently suffer from lack of motivation, withdrawal and depression. I am unable to form friendships or meaningful relationships, as I am unable to trust people. I still have difficulty sleeping. I manage my depression better now and the medication, Lamictal, assists me to do that.”
Medical evidence
22. Dr Saboisky examined Ms Klemke on behalf of Comcare on 31 October 2001. At that time Dr Saboisky found that Ms Klemke’s “underlying depressive disorder has been aggravated by the spread of malicious rumours by her co-workers.”[8] Dr Saboisky reviewed Ms Klemke on 5 August 2002 and 26 July 2004. After the review in August 2002 Dr Saboisky was of the opinion that Ms Klemke suffered a permanent impairment which he assessed under the Comcare Guidelines at 10%.[9] At the time of the last review Dr Saboisky was of the opinion that Ms Klemke did not have a psychiatric diagnosis and that Dr Tran had successfully treated her recurrent depression.[10] He reported that “I do not believe that she has an impairment under the Comcare Guide currently because the depression that was caused by her work-related problems ceased. Any symptoms she has now are related to domestic factors and not work factors.”[11] Dr Saboisky gave evidence and confirmed his opinion.
[8] Exhibit R4, p.3.
[9] Exhibit R5.
[10] Exhibit R6.
[11] Exhibit R6, p.5.
23. Dr Stevens, Clinical Psychologist, assessed Ms Klemke on 23 January 2002 for the purposes of her application for compensation. He diagnosed her as suffering from Major Depressive Disorder, recurrent with moderate-severe symptoms, and Adjustment Disorder with Anxiety. He was of the view that these conditions were a result of the workplace incidents. Dr Stevens recorded the following as part of the history taken from Ms Klemke:
“Ms Klemke has a significant history of depression………..She had an episode in 1999 following a separation. She then went on anti-depressant medication and was mostly recovered by the time of the harassment.”[12]
[12] Exhibit A3, T32, p.1.
24. After reviewing Ms Klemke on 19 March 2002 Dr Stevens assessed her as having a 15% permanent impairment.[13]
[13] Exhibit A4, T33.
25. Dr Stevens had a telephone consultation with Ms Klemke on 6 May 2004. At that time he made an assessment of 10% impairment and was of the opinion that “she remains very vulnerable to further episodes of depression.”[14]
[14] Exhibit A5, p.2.
26. Dr Stevens gave evidence. He said that in his opinion the 10% impairment was likely to last indefinitely and that Ms Klemke will go through the rest of her life with a higher distortion of thinking than is normal. He could not say how much of this distortion had occurred prior to April 2001 as he had not assessed Ms Klemke prior to that time. He agreed that Ms Klemke’s condition could improve.
27. Dr Tran, Psychiatrist, began treating Ms Klemke for depression in October 2002. At that time her diagnosis was of “a major depression episode of bipolar mood disorder”.[15] Dr Tran’s opinion was that the work problems triggered the current episode of depression and at the time she did not consider that the effects of the injury had ceased.
[15] Exhibit A2, p.3.
28. Dr Tran saw Ms Klemke on 10 occasions between 8 October 2002 and her last consultation on 22 August 2004.
29. We have before us a report dated 1 June 2004 and signed by Dr Tran.[16] This report was included in documents produced to the Tribunal under summons on 4 June 2004. It was not sent to the solicitor for Ms Klemke (to whom it was addressed) when it was produced as Dr Tran was waiting on payment for the report. We accept the evidence of Dr Tran in this regard.
[16] Exhibit R13.
30. In this report Dr Tran answered a number of specific questions from Ms Klemke’s solicitor and these answers included the following:
“10. I consider that she has 10% impairment as a result of the accident as I mentioned above and with continuing treatment this might be rectified with ongoing psychotherapy and medications.
11. I believe that the impairment became permanent after the incident.
12. The percentage permanent impairment is 10% in accordance with the guide to the assessment of impairment.
13. I consider that impairment could be reduced by further medical rehabilitative treatment. My advice is that she would be able to start a gradual return to work program within the next six months. I hope that the degree of impairment would be down to 5% and ideally to 0% impairment for Ms Tania Klemke.”
31. On inspection of the documents produced the solicitors for Ms Klemke obtained a copy of the report. On 6 July they wrote to Dr Tran,[17] in part as follows:
“1. In your response to question 8 it would appear to us that the fifth word should read incident rather than accident;
2. In your response to question 9, should that read “I believe that the incident caused an exacerbation of an[sic] depressive episode and I do not believe that the condition would have developed without specific trauma…. rather than would not have developed without specific trauma;
3. Your response to question 10 may be inconsistent with an assessment of permanent impairment of 10%. If your assessment of Ms Klemke’s condition is that she is suffering from a 10% permanent impairment in accordance with the Comcare table 5.1, a statement simply to that affect[sic] may be a more appropriate response to that question
4. Your response to question 13 appears in our view, to be somewhat inconsistent with your responses to question 10 regarding permanent impairment, and question 12 regarding the percentage level of permanent impairment in accordance with the guide. What we are seeking to clarify with that question is whether you consider that Ms Klemke’s condition has stabilised at a 10% level of permanent impairment at this point in time. Whilst we accept that Ms Klemke may return to work sometime on[sic] the future, is it likely that the symptoms described as 10% permanent impairment in accordance with Comcare table 5.1 would be likely to disappear to a degree that would enable Ms Klemke to be assessed as 0% or is it more likely that she may return to the workforce but the symptoms that qualify Ms Klemke for a 10% permanent impairment would remain notwithstanding the fact that Ms Klemke had returned to the workforce. If it is the case, as it appears from your response to question 12, that the degree of permanent impairment is in fact 10% then please advise whether you would be prepared to amend your response to question 13 to reflect that.”
[17] Exhibit R14.
32. Some time after the letter from the solicitors Dr Tran forwarded to them a report dated 2 June 2004.[18] Dr Tran gave evidence that notwithstanding the date on this report it was prepared and signed after 6 July 2004. We accept this evidence. This report corrected the obvious errors in the responses to questions 8 and 9 as pointed out in the solicitors’ letter. The answer to question 10 was altered to read:
“10. I consider that she has 10% impairment as a result of the incident as I mentioned above. She might be able to go back to work if she continues treatment with psychotherapy and medications, but her 10% impairment will remain stable.”
The answer to question 13 was altered also and now read:
“13. I consider that impairment stabilized at 10% despite further medical treatment. I do still hope she is able to start a gradual return to work program within the next six to twelve months and will be able to rehabilitate despite reaching 10% permanent impairment.”
[18] Exhibit A1.
There was also an insignificant change to answer 14, but otherwise the report dated 2 June 3004 remains the same as that dated 1 June 2004.
33. When first asked as to the circumstances of the preparation of the report of 1 June 2004 Dr Tran said that:
“…..my secretary did something there which I don’t normally do. What happened that I had prepared ages ago, before – well before 1 June, I had prepared a draft report. That’s why that is not signed, draft report. And I was going to review it because I initially prepared that and with the view that monitoring further to see how she is going to function , but for some reason she put it in the file. It’s not signed and it’s not finished yet.”[19]
[19] Transcript 24.2.05 pp 12-13.
34. After Dr Tran gave the evidence set out above the following exchanges took place between Dr Tran and members of the Tribunal.
“MR CONSTANCE: Just so I understand that clearly, doctor, when do you say you prepared the draft report?‑‑‑It could be a couple of months back, at least, because the reason why actually that never been addressed, that because - actually, it wasn't paid and I had a policy in my rooms that I don't release the reports and, you know, without being paid or without person being examined again because it's not just one examination. And certainly when I started her medication, she had some improvement but, at the time, when I prepared the report, I hadn't actually cognitively examined her again. And that's why I kept the report with the view to examine her again and to form my final opinion. But first of all, she didn't write "Draft" on it, and the other thing is that without signed like that, she put it in the file. And I obviously, you know - that's the reason why it's there. Certainly, initial response was good but then, when I examined her - and that's really most objective assessment that there's clearly continuing cognitive improvement, because patients can say that they're feeling much better, but until we do the cognitive testing, testing their attention and concentration is very difficult to objectively say that, yes, there's a continuing impairment or not.
DR MILLER: So you may have prepared this report some time before June?‑‑‑Yes, yes. I can't tell you exactly because it's - at least a couple of months before ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ if not more.
Yes?‑‑‑I had prepared that - it's not a report, it's a draft prepared but with a view to that, I was going to monitor the patient and in the meantime, there appeared a report and I sort of get the final thing out, but then, you know, when I examined her, clearly she had cognitive impairment and then I made my mind then, made the final assessment.”[20]
[20] Transcript 24.2.05 pp 13-14.
35. Later Dr Tran gave evidence that she would not have prepared a draft report without a request from a solicitor. When Dr Tran was reminded that the request for the report was dated 24 May 2004 (ie. only 7 days prior to the first report) she said that she could not remember when she prepared the draft.[21]
[21] Transcript 25.2.05 p.17.
36. Dr Tran later confirmed that in fact she had signed the report of 1 June 2004 which was produced to the Tribunal. She could not explain why the report was dated 1 June 2004 although it referred to her having seen Ms Klemke on 2 June 2004.
37. In cross-examination Dr Tran maintained that she had not changed her opinion as to the impairment suffered by Ms Klemke as a result of the request for her reconsideration by Ms Klemke’s solicitor. She did not agree that she had changed her assessment after she received the letter of 6 July 2004 from the solicitors.[22]
[22] Transcript 24.2.05 p.34.
38. We do not accept Dr Tran’s evidence as to the circumstances in which the changes to the report of 1 June 2004 were made, nor do we accept that the report was prepared in draft form some months before Dr Tran saw Ms Klemke on 2 June 2004. As the request for the report was made by letter of 24 May 2004 we find that the report of 1 June 2004 set out the true opinion of Dr Tran as at the date of the report. Dr Tran did not explain what it was in her consultation with Ms Klemke on 2 June 2004 which supposedly caused her to change her view as to the extent of the impairment suffered. We find that the opinion of Dr Tran as to the extent of the impairment suffered by Ms Klemke as at 4 June 2004 was as expressed in her report of 1 June 2004 ( Exhibit R13).
39. We do not accept that Dr Tran honestly held the opinion that Ms Klemke’s impairment was permanent. We find that Dr Tran was of the view that whatever impairment Ms Klemke did suffer could be reduced by further treatment.
40. Normally it would be expected that considerable weight could be placed on the views of a treating practitioner, particularly one who had consulted with a patient as often as Dr Tran had consulted with Ms Klemke. In this case it is extremely disturbing that we cannot do so. We find that Dr Tran’s report of 2 June 2004 was changed in response to a request from Ms Klemke’s solicitors in an effort by Dr Tran to advance the claim of Ms Klemke before this Tribunal. Whilst in proper circumstances it is appropriate for solicitors to seek clarification of the views of a medical practitioner extreme care needs to be taken by a solicitor in suggesting what would be appropriate by way of change.
THE LAW
41. Section 24 of the Act provides for compensation for injuries resulting in permanent impairment. Its relevant provisions are:
“(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.”
42.Relevant definitions in section 4 are:
“disease means
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;”
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);”
“impairment means 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 means likely to continue indefinitely;”
43. If it is decided that an employee has suffered an injury which has resulted in permanent impairment, section 24 then requires the determination of the degree of impairment in percentage terms in accordance with the approved Guide.[23] Apart from exceptional circumstances not relevant here, compensation is not payable if the degree of impairment is determined to be less than 10%.[24]
[23] Comcare, Guide to the Assessment of the Degree of Permanent Impairment, 1998 (7th ed.), Commonwealth of Australia, Canberra.
[24] Sub-section 24(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
44. Section 27 provides for compensation for non-economic loss, which is additional to the amount payable under section 24. Compensation under section 27 is only payable once an entitlement to compensation under section 24 is determined. Section 27(2) sets out the formula for determining non-economic loss. Part B of the Guide provides the principles for determining the degree of non-economic loss to be used in applying the formula.
45. An aggravation of an underlying condition is compensable if the aggravation has been caused by employment, even though the underlying condition has not. However, if the aggravation is only temporary and eventually ceases to have an effect and the underlying condition is left no worse, there is no ongoing injury for the purposes of the Act: Australian Postal Corporation v Bessey [2001] 3 FCA 266..
46. Only the impairment which results from a compensable injury is compensable: Comcare v Amorebieta (1996) 66 FCR 83.
THE ISSUES
47. The issues for determination are:
1)has Ms Klemke suffered an injury as defined by the Act;
2)if so, has that injury resulted in permanent impairment;
3)if there is permanent impairment, is the degree of that impairment at least 10%?
APPLYING THE LAW TO THE FACTS
Has Ms Klemke suffered an injury?
48. It is not in dispute that as a result of learning of the rumours circulating about her Ms Klemke suffered an injury in April 2002, namely a “depressive disorder”. Comcare has accepted liability for this injury.
Has the injury resulted in permanent impairment?
49. There is a difference of opinion amongst the medical practitioners who gave evidence as to whether the injury suffered in April 2001 has resulted in an impairment. In the light of the view we have taken of the evidence as to whether any impairment is permanent, it is not necessary that we determine this conflict.
50. Assuming in Ms Klemke’s favour that she has suffered an impairment resulting from the ailment of the depressive disorder, we are not satisfied that any impairment is “permanent” within the meaning of section 24(1).
51. On the basis of our findings in relation to Dr Tran’s evidence we are satisfied that there is a substantial likelihood that Ms Klemke’s condition will improve with further treatment and that at present she has not undertaken all reasonable rehabilitative treatment. We accept Dr Saboisky’s evidence that when he examined Ms Klemke in 2004 there had been an improvement in her condition and that Dr Tran’s treatment was being effective. Dr Stevens did not disagree and stated that Ms Klemke was “significantly better” when he spoke to her by telephone in 2004. He agreed that her condition could improve. We accept his evidence in this regard.
The degree of impairment (if any)
52. Even if we had been satisfied that there was a permanent impairment which resulted from the injury suffered by Ms Klemke, we could not be satisfied that the degree of that permanent impairment was at least 10%. None of the medical practitioners who gave evidence put the degree of impairment from which Ms Klemke was said to be suffering at greater than 10%. For the reasons set out above we do not accept Dr Tran’s opinion that the impairment was permanent which leaves only the assessment of Dr Stevens. Whilst he assessed Ms Klemke’s current impairment at 10% he stated in cross-examination that he based this assessment on the distortion of her thinking and that he could not state how much of this distortion had occurred prior to the injury in April 2001 as he had not assessed her prior to that time.
53. Counsel for Ms Klemke put to us that we should be satisfied that whatever impairment Ms Klemke now suffers results from the compensable injury because she had been free of symptoms of depression for the period between June 1997 and April 2001 when the injury occurred. We do not accept that argument as we are satisfied that in fact she was not free of such symptoms during that period. The evidence before us which is set out in these reasons shows that Ms Klemke experienced instances of depression after June 1997 and before April 2001.
DECISION
54. The decision of Comcare made 12 November 2002 is affirmed as we are not satisfied on the balance of probabilities that Ms Klemke has suffered a permanent impairment as a result of the injury she suffered in April 2001.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member and Dr M.D. Miller AO, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 24-25 February & 3 March 2005
Date of Decision 8 April 2005
Counsel for the Applicant Mr A. Anforth
Solicitor for the Applicant Capital Lawyers
Counsel for the Respondent Mr D. O'Donovan
Solicitor for the Respondent Phillips Fox
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