Lenton and Military Rehabilitation and Compensation Commission
[2005] AATA 410
•6 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 410
ADMINISTRATIVE APPEALS TRIBUNAL ) Q2000/947, Q2001/452,
Q2002/94
GENERAL ADMINISTRATIVE DIVISION ) Re MARK ANTHONY LENTON Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date6 May 2005
PlaceBrisbane
Decision The Tribunal affirms the decisions under review. ................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
COMPENSATION – left wrist permanent impairment due partially to pre-existing osteoarthritis but in any event less than 10% whole person impairment – period off work due to inability to find work – applicant has accepted psychiatric condition - not suffering from a new or more serious psychiatric condition – no further compensation payable – decision affirmed
Safety Rehabilitation and Compensation Act 1988: s.19
REASONS FOR DECISION
Deputy President Don Muller 1. Mark Anthony Lenton, the Applicant, seeks review of three decisions, namely:
(a)Q2000/947
A decision dated 12 September 2000, affirming a determination of 14 June 2000, which rejected a claim for lump sum compensation for permanent impairment to Mr. Lenton’s left wrist on the grounds that:
(i) he does not suffer a permanent impairment in his left wrist; or
(ii)if he does suffer a permanent impairment in his left wrist it is as a result of pre-existing osteoarthritis; and in any event
(iii)his whole person permanent impairment to his left wrist is less than 10%.
(b)Q2001/452
A decision dated 29 March 2001, which varied a determination dated 14 June 2000, that Mr. Lenton was not entitled to compensation for the period 10 December 2000 to 16 February 2001 because:
(i)he was not incapacitated for work as a result of his left wrist and right shoulder conditions;
(ii)he was not entitled to compensation for incapacity pursuant to s.19 of the Safety, Rehabilitation and Compensation Act 1988 (compensation for injuries resulting in incapacity); and
(iii)He was deemed to be able to earn $476.34 per week with effect from 14 September 2000.
(c)Q2002/94
A decision dated 5 December 2001, which affirmed a determination dated 29 January 2001 that although liability had been admitted on 24 July 1995 in respect of a temporary psychological condition (later amended to a permanent major depressive condition and post-traumatic stress disorder) due to the effects of a motor vehicle accident on 19 March 1993, he was not incapacitated for work in 2001.
2. The first two applications, Q2000/947 and Q2001/452, were to be heard in November 2001. The Tribunal, constituted by then Deputy President Breen, Members Rinaudo and Dr. Morley, heard two days of evidence on 14 and 15 November 2001. Mr. Lenton represented himself and the Respondent was represented by Ms. Ford of Counsel.
3. During the two days in November 2001, the Tribunal heard evidence from Mr. Lenton, Dr. Mark William Robinson and Dr. Gregory Conzens.
4. On 15 November 2001, Mr. Lenton requested that the matter be adjourned to allow him to organise legal representation. This application for an adjournment was granted on the basis that the matter would be resumed when Mr. Lenton gave notice to the Tribunal that he had obtained a legal representative.
5. However, on 31 January 2002, Mr. Lenton, through a solicitor acting on his behalf, lodged the third application for review, Q2002/94, involving a claim for further compensation for his shoulder injury and for major depressive disorder and post traumatic stress disorder, arising out of a motor vehicle incident which occurred whilst he was on Army service in 1993. He later added that his psychiatric condition had been aggravated by conflict with supervising officers in the Army Reserve.
6. It was decided by the Tribunal, by consent of the parties, that the conference and conciliation processes be used to attempt to settle the third application and that failing resolution by either of those methods, the third application be heard together with the first two matters at a resumed hearing.
7. A number of interlocutory proceedings took place during 2002, 2003 and the early part of 2004. Mr. Lenton was legally represented on some of the occasions, and not on others. None of the three applications were settled during the course of the negotiations during 2002, 2003 and 2004.
8. In the meantime Deputy President Breen and Member Rinaudo had ceased to be Members of the Tribunal.
9. I decided that I would hear all three matters together in the second half of 2004. This was done. It was agreed between the parties that the evidence to be admitted would consist of all the material tendered in November 2001, plus the transcript of the hearing for the two days 14 and 15 November 2001, plus any further evidence to be given at the renewed hearing.
10. Mr. Lenton represented himself at the September 2004 hearing and the Respondent was again represented by Ms. Ford of Counsel.
11. The Tribunal heard further evidence from Mr. Lenton and also received into evidence reports by the following medical practitioners:
·Dr. Peter Milroy, orthopaedic surgeon
·Dr. John Chalk, psychiatrist
·Dr. Axel Estensen, consultant psychiatrist
·Dr. Gregory Couzens, hand surgeon
·Dr. Peter Rowan, orthopaedic surgeon
·Dr. Jeremy Bartlett, orthopaedic surgeon
12. Apart from the medical reports mentioned above, the T-documents contain 25 medical reports compiled by 15 different medical experts.
13. At the end of the hearing, Mr. Lenton sought the leave of the Tribunal to tender a written submission at a later date. The Tribunal gave Mr. Lenton leave to do so. Mr. Lenton later sought extensions of time within which to deliver his submissions. Eventually he filed his submissions in late February 2005. Ms. Ford for the Respondent, replied in March 2005.
14. The following background matters are not in dispute and the Tribunal finds:
·Mark Anthony Lenton was born on 25 November 1956.
·After leaving school he obtained work as a type setter.
·He joined the Australian Regular Army on 22 February 1977.
·In 1984 he was involved in a motor bike accident and his left leg was seriously injured. He spent three months in Royal Brisbane Hospital and a further nine months as an outpatient at Taringa Rehabilitation Centre. This was a non-compensable injury.
·He served with the Armoured Corps until he was discharged at his own request in 1987, with the rank of Corporal.
·In 1987 he transferred to the General Reserve.
·As an Army Reservist he was able to do Army work for a maximum of 100 days per year. Over the years he has worked on average between 90 to 100 days per year as an Army Reservist.
·In between his periods as an Army Reservist he has had numerous civilian jobs. He has worked as a forklift driver, storeman, packer, process worker and security guard.
·On 19 March 1993 whilst on an Army Reserve exercise, he was driving an Army truck when the truck overturned. He was treated at Nambour Base Hospital for various abrasions and lacerations and had a splint applied to the right little finger. He then returned to the Army exercise. Four days later he had treatment at Maryborough General Hospital where he received physiotherapy for his neck and shoulder, and treatment of cellulitis and an infection of the base of the little finger.
·On 5 April 1993, Mr. Lenton lodged a claim for compensation in relation to “mallet finger, neck and back injuries plus head injuries” as a result of a motor vehicle accident whilst serving with the Army Reserve on 19 March 1993.
·On 6 April 1993 he was assessed at 1 Military Hospital and diagnosed as having a soft tissue injury of the neck, which was considered to have resolved by then.
·He also had a CT scan of the head on 22 April 1993. No abnormality was found. There was said to be no neurological deficit.
·On 6 May 1993 a determination accepted liability for “contusions to right scalp from temporal to parietal region, soft tissue injury to the neck and mallet finger deformity right small finger sustained due to the incident of 19 March 1993”.
·Mr. Lenton was not incapacitated for work as a result of the injuries sustained in the motor vehicle accident.
·In November 1994, Mr. Lenton lodged a claim for lump sum compensation for permanent impairment in respect of the multiple injuries sustained in the motor vehicle accident on 19 March 1993.
·He was referred to Dr. Peter Boys, Orthopaedic Surgeon, who provided a report dated 11 November 1994.
·On 28 November 1994, a determination accepted liability for a whole person impairment of 10% in relation to his compensable injuries. As a result lump sum compensation of $18,540.24 was paid to him.
·On 24 July 1995, a determination amended the determination of 6 May 1993 to include a right shoulder injury as part of his accepted conditions.
·In August 1995, he suffered neck and shoulder symptoms and for the first time was absent from work on account of the symptoms.
·He complained of further episodes of aggravation of symptoms and was absent from work from time to time.
·On 8 May 1997, a determination accepted liability for lump sum compensation for permanent impairment for a combined impairment of 23% under Table 14.1, comprising of cervical spine 5% under Table 9.6, right shoulder 5% under Table 9.1, right little finger 5% under Table 9.1, and major depressive condition 10% under Table 5.1 The total amount of lump sum compensation payable was $36,963.83, leaving an additional amount of $18,423.59 to be paid, because Mr. Lenton had already received an amount of $18,540.24.
·Since the motor vehicle accident he has continued to carry out civilian employment in addition to working for the Army Reserve for part of each year.
·In July 1997, Mr. Lenton was referred to Associate Professor Bruce McPhee, orthopaedic surgeon, for review, who provided a report dated 17 July 1997. Professor McPhee made an assessment of Mr. Lenton which showed that Mr. Lenton’s impairment of his cervical spine was unchanged since he had been examined by Dr. Boys in November 1994.
·On 2 March 1999, whilst working for the Army Reserve, Mr. Lenton fell and sustained an injury to his left wrist.
·In August 1999, he was referred to the Holy Spirit Hospital Rehabilitation Service Pain Management Program. The program was not entirely successful. He was not able to attend regularly because of problems associated with the care of his six year old son.
·He was referred to Dr. John Walters, orthopaedic surgeon, who provided a report dated 22 October 1999.
·He complained of ongoing symptoms in his wrist. As a result, an arthroscopy and open debridement of the radio ulnar joint was carried out in November 1999.
·On 9 March 2000, he made a claim for lump sum compensation for permanent impairment in respect of his left wrist injury.
·He completed a four day work trial in early April 2000.
·On 14 April 2000, Dr. James Fardoulys, orthopaedic surgeon, performed a surgical procedure to his right shoulder.
·As a result, on 19 April 2000, Mr. Lenton claimed further lump sum compensation for permanent impairment in respect of his right shoulder condition.
·On 19 April 2000, a determination was made that Mr. Lenton’s rate of pay for normal weekly earnings purposes would be based on $505.95 per week. On 16 May 2000, he requested a reconsideration of that decision.
·On 14 June 2000, a determination was made rejecting liability to pay lump sum compensation for permanent impairment with respect to his left wrist injury.
·On 12 September 2000, a reviewable decision affirmed the determination dated 14 June 2000 which rejected liability to pay lump sum compensation for permanent impairment in respect of his left wrist injury.
·On 14 September 2000, a delegate noted, that as part of the rehabilitation program, Mr. Lenton had returned to work on 3 August 2000 as a storeman with the Army Reserve for a period of seventy days consecutive service. As Mr. Lenton stated he was not aware of his current rate of pay from employment, the delegate noted that the award rate of pay for a store worker no. 2 was $460.50 per week. The delegate further noted that Mr. Lenton’s rate of pay as an Army reservist equated to $476.34 per week. On the basis of that information the delegate determined that Mr. Lenton had an ability to earn $476.34 per week with the effect from 14 September 2000, being the date of the determination.
·On 25 September 2000, Work Directions Australia reported that the objects of the rehabilitation program had been achieved when Mr. Lenton returned to his pre-injury duties on 3 August 2000.
·On 4 October 2000, Mr. Lenton asked to be placed on a rehabilitation program and have his incapacity payments restored. This was treated as a request for reconsideration of the determination dated 14 September 2000.
·On 10 October 2000, he lodged an appeal to the Administrative Appeals Tribunal to review the determination dated 12 September 2000 which rejected liability to pay lump sum compensation in respect of his left wrist condition.
·On 13 October 2000, a determination was made that he had ceased employment for reasons other than his compensable conditions. As the Applicant was now unemployed, rather than incapacitated for work, he was no longer entitled to his incapacity payments.
·Mr. Lenton ceased work as a storeman in the Army Reserve on 6 December 2000. He had been working successfully as a storeman on a full-time basis since 3 August 2000 but his period of 100 days expired on 6 December 2000. He did not work again until 16 February 2001. During his period of unemployment he received a Social Security allowance.
·On 29 March 2001, a reviewable decision varied the determination dated 14 September 2000 and determined that Mr. Lenton was not incapacitated for work as a result of his left wrist and right shoulder conditions, that he was not entitled to compensation for incapacity pursuant to s.19 of the Act and that he was deemed able to earn $476.34 per week with effect from 14 September 2000.
·On 24 May 2001, Mr. Lenton lodged an appeal with the Administrative Appeals Tribunal to review the determination dated 29 March 2001.
·During 2001 Mr. Lenton worked for an electrical company and he also had a part-time cleaning job.
·Mr. Lenton was re-employed by the Army Reserve in March 2002 and worked there full-time until 21 June 2002.
·On 1 July 2002, Mr. Lenton was re-employed by the Army Reserve until September 2002.
·Since September 2002 Mr. Lenton has been a packer, process worker, security guard for various security firms and since 14 February 2004 he has been a customer service officer with Queensland Rail.
·Mr. Lenton’s right shoulder was successfully operated on by Dr. Fardoulys, and Mr. Lenton has abandoned a claim to compensation in relation to this former incapacity.
Wrist Injury – Q2000/947
15. Mr. Lenton has maintained that he broke a bone in his wrist when he slipped on a wet concrete floor on 2 March 1999. However, there is in fact no evidence that any bone was broken in Mr. Lenton’s wrist. The surgeon who operated on his wrist, Dr. John Walters, reported as follows on 22 October 1999:
“I have been treating Mark Lenton over a period of six months with pain related to the ulna side of his left wrist. He initially sustained an injury on 2.3.99 when he slipped on a wet concrete floor, and put his hand out to break his fall. X-rays show no bone injury, but there was a small spur adjacent to the distal ulna. It was felt that the diagnosis was a soft tissue injury to the ulna side of the wrist, associated with some early degeneration in the inferior radio-ulna joint.”
16. It was also Dr. Walters’ opinion that the main problem with Mr. Lenton’s wrist was due to degeneration. In a report dated 17 December 1999 he said:
“X-rays did show some degenerative change at the DRUJ, with a small spur on the proximal articular surface of the ulna.
On clinical examination there was virtually a full range of wrist movement, but there was loss of 20o of forearm supination, and this movement caused pain. There has always been tenderness over the dorsal aspect of the DRUJ, and over the end of the ulna.
A Nuclear Bone Scan was unremarkable, and an arthrogram did not demonstrate any leakage of dye through the triangular fibro-cartilage.
Mark has always had more pain than one would have expected from the pathology. He has been taking regular Panadeine Forte up to six or eight tablets each day, and often he needed strong sedatives to sleep at night.
I have always felt that the predominant pathology is degenerative change in the inferior radio-ulna joint. There are definitive operations for this condition such as a Launstein procedure, or a hemi resection of the ulna head. I did not feel the pathology was at a stage which would require this type of operation, and I considered that his symptoms would most likely settle with conservative management.
In view of his failure to improve I did proceed with surgery at the Holy Spirit Hospital on 10.11.99. This involved an arthrosocopy, and an open debridement of the radio-ulna joint. There was some laxity at the attachment of the TFC, and several sutures were placed to tighten the ulna attachment of the volar ligaments.”
17. In a report dated 31 May 2000, Dr. Walters assessed the loss of Mr. Lenton’s left limb function as 2% according to the AMA tables, or 7.5% from his own estimate. This would translate to a 5% whole person impairment under table 9.1 of the Comcare Guide.
18. Unfortunately, some of the medical reports have proceeded on the basis that Mr. Lenton broke a bone in his wrist. Dr. Bartlett’s report is tainted by this misconception, and so is the report of Dr. Rowan.
19. Mr. Lenton has lately claimed that the degeneration in his wrist, noted at the time of his wrist injury was due to his previous service in the Army. There is simply no medical evidence to support such a claim.
20. Dr. Milroy saw Mr. Lenton on 12 December 2000, a few days after he ceased work on 6 December 2000, and again on 19 November 2002. Dr. Milroy agreed with the findings of Dr. Walters. Dr. Milroy summed up his opinion in these terms:
“Left wrist – On formal examination his left wrist would only extend 35o but I am certain that when he was manipulating the Xrays his wrist extended much more than this to at least 50o. On formal examination his left wrist would flex no more than 20o, but when he was manipulating the Xrays the left wrist also flexed more than this to at least 40o. Pronation and supination movements of the forearm are full and painfree. The lower end of the ulna feels stable. Compression of the inferior radio ulna joint does not cause any distress. The left hand is clinically normal. He describes some pins and needles of the left little and ring fingers. There is only slight wasting of the forearm muscles compared to the right. His subjective grip strength is less than I would expect with the amount of muscle available in his forearm. With encouragement he had a reasonably strong grip with the left hand.
2/3/99
The original Xrays taken on the day of the injury of the left wrist show evidence of pre-existing degenerative change in the inferior radio ulna joint. An osteophyte spur is noted on the flexor aspect of the head of the ulna. This has also been referred to by other observers e.g. Dr. J. Walters.
Subsequent Xrays show the same findings.
19/11/02 Further Xrays of the left wrist were taken (in the patient’s possession). These Xrays show slight increase in osteoarthritic changes in the inferior radio ulna joint. It is important to note that there is no evidence of increased deterioration in the radio carpal joint. This is the joint where flexion and extension, radial and ulna tilt of the wrist occur. Previous Xrays do not show any evidence of significant involvement of the radio carpal joint in the left wrist.
I have described the ranges of movement measured by various colleagues at different times. It seems that overall Mr. Lenton’s left wrist has been and is still capable of a reasonable range of movement. The major site of trouble in Mr. Lenton’s left wrist is the inferior radio ulna joint. At this joint pronation and supination occur, not flexion, extension, radial and ulna tilt of the wrist. The major loss of movement that Mr. Lenton’s claims seems to be flexion and extension. There are no present clinical or radiological signs to support this loss of motion. One would expect much more trouble with pronation and supination movements. These movements have and are causing only minimal to moderate problems.
Mr. Lenton suffers from osteoarthritis of the left inferior radio ulna joint in the left wrist.
In my opinion the injury on the 2nd March, 1999 probably did not cause this condition.
I agree with the opinion of Dr. J. Walters (see reports 31st May, 2000 and 27th June, 2001) that Mr. Lenton’s left wrist suffered an aggravation of a pre-existing condition when he fell on the 2nd March, 1999.
The immediate aggravation caused by the injury on the 2nd March, 1999 contributed (25-50%) to the aggravation and some acceleration. However, in my opinion the aggravating effects of that injury were temporary. I agree with the comments made by Dr. J. Walters in his report of the 31st May, 2000 last paragraph – ‘In terms of the expected long term deterioration in function and possible need for surgery, there would be a component both as a result of the degenerative change, and the injury he sustained in March 1999. By the time this occurs, the effect of injury would have subsided to a degree, and the greater factor would be the progression of arthritic change’.
In my opinion the injury of the 2nd March, 1999 caused a temporary inability for Mr. Lenton to perform his pre-injury employment. Any restrictions at present are due to the pre-existing condition.
Table 9.1 – In my opinion at present there is a permanent impairment of 8% of the left upper limb in total which is equivalent to 5% of the whole person impairment. However, giving Mr. Lenton the benefit of any doubt, there is 3% whole person impairment (5% of the left upper limb) attributable to the employment related injury on the 2nd March, 1999.
Table 9.4 – Mr. Lenton can use his left upper limb for self care, grasping and holding and has no difficulty with digital dexterity. Therefore the level of the whole person impairment falls below 10% to a definite degree and the proportion due to the injury on the 2nd March, 1999 is the same as that expressed under Table 9.1 above.”
21. There are a few other medical reports about Mr. Lenton’s wrist in which the authors assess Mr. Lenton’s whole person impairment as 10% or slightly higher but unfortunately they either suffer from the assumption that Mr. Lenton broke his wrist, suffer from the deficiency of relying solely on Mr. Lenton’s apparent reaction to the various tests or suffer from the deficiency of not addressing the degree of impairment caused by pre-existing degenerative changes.
22. I prefer the report of Dr. Walters over all of the other reports because he is the only one who has actually seen inside Mr. Lenton’s wrist.
23. I also accept the report of Dr. Milroy because he has had a more objective approach to assessment and he has taken the pre-existing degeneration into account for the purposes of this workers’ compensation review.
24. I find that Mr. Lenton does have a permanent impairment of the left wrist. The impairment equates to a whole person impairment of 5% of which approximately 3% is attributable to the employment related injury on 2 March 1999.
25. The degree of permanent impairment does not meet the minimum threshold of 10% and consequently no lump sum compensation is payable in relation to the impairment of Mr. Lenton’s left wrist.
26. The decision under review in Q2000/947 is affirmed.
Compensation for the period 10 December 2000 to 16 February 2001:
Q2001/452
27. This review relates to the period between 10 December 2000 to 16 February 2001 when Mr. Lenton was not working. He is seeking a review of the decision made on 14 September 2000, as varied on 29 March 2001, that he was not incapacitated for work as from 14 September 2000, and that he was therefore not entitled to compensation from that time on, including 10 December 2000 to 16 February 2001.
28. At the time of the decision and in the months following, it was Mr. Lenton’s case that his left wrist condition combined with his right shoulder problems prevented him from working. On 19 January 2001, Mr. Lenton wrote to the Department of Defence to protest about the decision to take him off the rehabilitation program. He reminded the delegate that he had injured himself in March 1999 when he slipped over and hurt his left wrist.
29. At the hearing of this matter before me Mr. Lenton claimed that he had not been working between 10 December 2000 and 16 February 2001 because he had developed a psychiatric problem due to stress and anxiety whilst working for the Army Reserve. He said that he had taken to drinking alcohol to excess and to gambling and that he could not turn up for work. He also attributed his psychiatric condition to the truck incident in 1993.
30. The plain facts of the matter are these:
·Prior to 10 December 2000 Mr. Lenton was working full-time as a storeman for the Army Reserve, with no apparent problems.
·He became unemployed because his 100 days limit was up.
·He did not work from 10 December 2000 until 16 February 2001 because he could not get a job. He went onto social security benefits.
·Once he got a job in February 2001, he remained employed full-time until his first hearing at this Tribunal in November 2001.
·Since then he has had periods of full-time employment in the Army Reserve (March 2002 to 21 June 2002 and 1 July 2002 to September 2002) and other jobs as described above on a full-time basis.
·There is nothing wrong with his right shoulder.
·There is very little wrong with his left wrist.
·The condition of his right shoulder and left wrist were not serious enough to prevent him from working.
31. I do not accept that Mr. Lenton was unemployed during the period in question due to any illness or injury associated with his work in the Army Reserve. He was working well before the period. He worked well after the period. He simply experienced an episode of being between jobs.
32. I do not accept that Mr. Lenton was out of work due to a psychiatric illness. He certainly did not raise this possibility in his letter of January 2001.
33. I find that during the period in question, Mr. Lenton was not incapacitated for work and that he was therefore not entitled to compensation, pursuant to s.19 of the Act.
34. The decision under review is affirmed.
Post-Traumatic Stress Disorder/Major Depressive Disorder(Q2002/94)
35. A determination was made on 24 July 1995 in which the Respondent accepted liability for “a temporary psychological condition due to the vehicle accident on 19 March 1993”.
36. Mr. Lenton was later assessed by Dr. Foxcroft in 1997 and as a result of his report dated 27 April 1997, the Respondent amended the determination of 24 July 1995 by deleting the previous determination and adding the acceptance as a permanent work related injury “a major depressive condition and post traumatic stress disorder as a result of the motor vehicle accident on 19 March 1993”.
37. The determination of 27 April 1997 went on to accept the opinion of Dr. Foxcroft in relation to the degree of permanent psychiatric impairment suffered by Mr. Lenton and assessed him as having a 10% whole person impairment due to his psychiatric condition.
38. Mr. Lenton has received payment in full in relation to a 10% whole person impairment due to his psychiatric illness.
39. At the Tribunal hearing in September 2004, Mr. Lenton claimed that the period he was off work between 10 December 2000 to 16 February 2001 was due to psychiatric problems. I have discussed this claim above and have rejected the claim that Mr. Lenton was off work during the relevant period as a result of any compensable condition.
40. Mr. Lenton has claimed to the reporting psychiatrists that his psychiatric condition was made worse by the stress and tension associated with his position as a storeman in the Army Reserve. He claims to have been harassed by a supervising officer. However, the psychiatric reports do not bear out Mr. Lenton’s contention that his condition has worsened. The most recent psychiatric reports available to the Tribunal are a report by Dr. Estensen, dated 15 November 2002, and a report by Dr. Chalk, dated 7 November 2002. Dr. Chalk reported:
“Depression itself is a multifactorial disease and it is possible that other events in his life may have led to the development of depressive symptoms were it not for the accident. The employment factors that contributed towards his condition were the accident that has been outlined
His condition has been accepted as permanent. In my view, from the point of view of his depression and post traumatic stress disorder, he is disabled at the level of 10% at the most.
He is not disabled from work and indeed has continued to work over lengthy periods of time. He has had other physical problems, notably his right shoulder which he attributes to the accident and his wrist which he attributes to a different set of circumstances.
Mr. Lenton is currently having psychiatric treatment. He is apparently having this on a weekly basis. Dr. Foxcroft was of the view that his condition had, as of March 1995, been stable and permanent. Given this, I would find it difficult to consider that he would need ongoing aggressive treatment for a condition that had stabilised seven years previously and whilst I would not doubt the benefit that he has gained from treatment at the current time, it would be my view that other conditions and influences have affected the need for treatment in the interim.
I am of the view that Mr. Lenton is able to work. He has demonstrated ability to work as a storeman since over lengthy periods of time and I do not think that he is psychiatrically impaired from performing full time employment. I would accept that he has a small permanent psychiatric impairment and I have expressed my opinion about this previously. I do not think that this impairment will decrease with further treatment, nor would I expect it to increase unless other events intervened.”
Dr. Estensen reported:
“Mr. Lenton is fit for his usual duties other than in the current unit that he is in.
Mr. Lenton is seen on a weekly basis for supportive psychotherapy and cognitive strategies to manage his depressive and anxious symptoms. At times when he is troubled by reoccurrence phenomena associated with his Post-Traumatic Stress Disorder, these symptoms are addressed in a similar fashion. His medication is Sertraline 100mg at night, Stilnox 10mg at night and Campral 330mg 3 tablets 3 times per day.
Overall, Mr Lenton’s prognosis is good. He is eager to return to work and has been actively working to do the same. He has had a 25-year association with the Army Reserves and would like to continue this. Removal from his current conflictual workplace to a more harmonious one would accelerate his recovery. He unfortunately seems to have experienced a stressor, which has interacted with his pre-existing vulnerabilities secondary to this Post-Traumatic Stress Disorder condition and Major Depressive Disorder.”
41. The Tribunal also notes that a report from Carmel Hill, Clinical Psychologist, dated 28 May 2004, refers to two incidents experienced by Mr. Lenton whilst working for Queensland Rail. According to the report, Mr. Lenton was assaulted whilst performing security duties at Ferny Grove Railway Station on 27 March 2004 and had his nose broken. The report also refers to an event on 1 May 2004, when he and two rail guards were threatened by “20 youths loitering in a car park”.
42. Mr. Lenton has claimed compensation from Queensland Rail. The report of Carmel Hill contains the following passage:
“Mr. Lenton reports no previous medical history that is significant to his current claim. He reports that in 1995 he was the driver of an Army truck, which collided with a civilian car. He reports that he sustained a number of physical injuries and developed Post Traumatic Stress Disorder as a consequence of this accident. He successfully lodged a Comcare claim. He reports that he was recommended counselling from both a Psychologist and Psychiatrist. He reports that he saw the Psychologist for about twelve sessions, and saw the Psychiatrist on a weekly basis for the first year and continues to see the same Psychiatrist about once every six weeks. He reports that he did not have any time off due to his psychological injuries and was never prescribed any medication.’
Mr Lenton is adamant that the PTSD he experienced many years ago is not linked to his current psychological symptoms. He reports that he has been symptom free for many years, and that the counselling he receives is supportive therapy. He reports that the symptoms are very different from the PTSD symptoms he experienced many years ago. He reports experiencing at that time strong avoidance, hyper arousal symptoms, and recurrent intrusive recollections of the traumatic symptoms. He believes that his current symptoms are more connected to the existence of visible and annoying symptoms caused by his fractured nose, which serve as a continual reminder of the assault.”
43. I am satisfied that Mr. Lenton has never been unemployed due to his psychiatric condition.
44. I am also satisfied that his current whole person permanent impairment due to his Army Reserve duties is no more than the 10% assessed by Dr. Foxcroft and Dr. Chalk.
45. He has already been paid compensation in full for a permanent psychiatric impairment of 10%.
46. Mr. Lenton is not entitled to any further compensation payment from the Respondent due to his psychiatric condition.
47. The decision under review is affirmed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 14, 15.11.01 and 20.9.04
Date of Decision 6 May 2005
Applicant Mr. Lenton, himself
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Australian Government Solicitor
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