Lieschke and Telstra Corporation Limited (Compensation)
[2018] AATA 3787
•11 October 2018
Lieschke and Telstra Corporation Limited (Compensation) [2018] AATA 3787 (11 October 2018)
Division: GENERAL DIVISION
File Number(s): 2016/1856; 2016/2119
Re: Christopher Lieschke
APPLICANT
And Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal:Member A Ward
Member M O’Loughlin
Member D Ben-Tovim
Date:11 October 2018
Place:Adelaide
The decisions under review are set aside and in substitution it is decided that:
a) The Applicant continues to suffer from the compensable injuries of ‘subarachnoid haemorrhage due to a ruptured left middle cerebral aneurysm’ and ‘anxiety and depression with mild cognitive changes’ which arose out of the course of his employment;
b) In relation to application 2016/1856:
i.the Applicant is entitled to be reimbursed by the Respondent for the costs of pharmacy related expenses and occupational therapy services expenses incurred by him as a consequence of his injury pursuant to s 16 of the SRC Act;
c) In relation to application 2016/2119:
i.the Applicant is entitled to be paid compensation by the Respondent for weekly incapacity payments, including arrears, from 23 December 2015 to the date of this order pursuant to s 19 of the SRC Act;
ii.Insofar as it does not lead to duplication of the orders made in relation to application 2016/1856, the Applicant is entitled to be reimbursed by the Respondent for the costs of medical treatment arising from the injury pursuant to s 16 of the SRC Act;
d) The Respondent is to pay the Applicant’s legal costs and disbursements under s 67 of the SRC Act;
e) The Tribunal requests further written submissions from the parties as to whether interest is payable on the unpaid income arrears as requested by the Applicant from 23 December 2015 to the date of this order, to be provided within 14 days of this order.
.........................[Sgnd].......................................
Member A Ward
CATCHWORDS
COMPENSATION – Whether person requires ongoing treatment for compensable injury – Incapacity for work – Compensation for medical expenses – Intervening act – Psychological sequelae – Determinations under review set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1998 (Cth)
CASES
Nicolas v Comcare [2007] AATA 1858
Koker v Comcare [2017] AATA 1432REASONS FOR DECISION
Member A J Ward
Member M O'Loughlin
Member D Ben-Tovim11 October 2018
This is an application by Mr Christopher Lieschke seeking review of two determinations made by the Respondent: the first dated 4 December 2015 relating to the payment of diverse expenses; and the second dated 23 December 2015 relating to ongoing entitlements to receive compensation by way of weekly payments from 23 December 2015 onwards, and compensation for medical expenses.
History of Events
Mr Lieschke suffered a subarachnoid haemorrhage whilst at work on 15 October 2009. He required emergency treatment and then rehabilitation as he recovered from the acute effects of the aneurysm and the surgery.
He submitted a claim for compensation under the Safety, Rehabilitation and Compensation Act 1998 (“the SRC Act”) and on 13 January 2010,[1] a representative of the Respondent (a “determining authority” for the purposes of s 60 of the SRC Act) communicated a determination that the Respondent was liable to pay Mr Lieschke compensation under s 14 of the SRC Act in respect of subarachnoid haemorrhage due to a ruptured left middle cerebral aneurysm, sustained on 15 October 2009. That determination further provided that Mr Lieschke was entitled to medical expenses[2] and payments for incapacity to work.[3]
[1] Exhibit 1 T17-19.
[2] Safety, Rehabilitation and Compensation Act 1998 (Cth) s 16.
[3] Ibid s 19.
The determining authority made a further determination on 1 September 2010 that the Respondent was not liable to pay benefits under s 19 of the SRC act or medical and associated expenses under s 16 because the Applicant had ceased to suffer from the effects of the Compensable Injury (subarachnoid haemorrhage due to a ruptured left middle cerebral aneurysm).[4]
[4] Exhibit 1 T30, p 91.
The Applicant made a further claim for compensation on 3 November 2010, relating to “cognitive function and psychological issues”. By letter of 31 January 2011 the determining authority communicated a determination to accept liability for “anxiety and depression with mild cognitive changes” as ongoing effects of the initial haemorrhage.[5]
[5] Ibid T41, p138.
Both of the Determinations referred to above were based on acceptance by the Respondent that the Applicant suffered injury as a consequence of his employment with Telstra.
Those Determinations having been made, the Applicant continued to receive treatment for his injuries and undertook various attempts to return to work and various other programs to assist with his rehabilitation.
On 4 December 2015, the determining authority advised the Applicant that he was not entitled to compensation regarding his claim for medical treatment costs, specifically his ongoing gym program, reimbursement of pharmacy related expenses and ongoing occupational therapy services.[6] The determining authority decided that the Applicant no longer required ongoing treatment for his compensable injury and that the various measures specified were not reasonably required for his compensable injury.[7]
[6] Ibid T117, p381.
[7] Ibid T117, p384.
On 23 December 2015, a further determination was made that the Applicant no longer suffered from the effects of the compensable injury; that his incapacity to work was not due to the compensable injury; and that further compensation, medical treatment and travel costs were not reasonably required for the compensable injury.[8] With reference to ss 16 and 19 of the SRC Act, as at 23 December 2015, a determination was made that the Respondent was not liable to pay compensation for medical treatment and incapacity payments with respect to the compensable injury.
[8] Ibid T126, p 410.
The purpose of the hearing that took place in June 2018 in the Adelaide Registry of the Administrative Appeals Tribunal (AAT) was to examine those two decisions arising out of effectively the same evidence and covering the issue as to whether the Respondent had a liability to pay compensation in accordance with the SRC Act.
At the hearing before us, the Applicant was represented by Mr Andrew Collett and Mr Graham Harbord. The Respondent was represented by Mr John Wallis and Mr Michael la Vista.
The following witnesses gave evidence during the hearing of the matter:
1.1.The Applicant, Mr Christopher Lieschke;
1.2.The Applicant’s wife, Ms Narelle Lieschke;
1.3.Dr Ninda Sandhu, Consultant Radiologist;
1.4.Dr Leslie Koopowitz, Neuropsychiatrist;
1.5.Dr Emma Fitzgerald (nee Scamps), Neuropsychologist;
1.6.Dr Bruce Rounsefell, Pain Medicine Specialist;
1.7.Dr Tony Davis, Psychiatrist;
1.8.Dr Richard Burns, Consultant Neurologist;
1.9.Professor Richard Mattick, Psychologist; and
1.10.Professor Brian Brophy, Neurosurgeon.
THE DECISION
For the reasons set out below, our Decision is that at the time those two determinations were made and to the present, the Applicant has continued to suffer from the effects of the compensable injury. In accordance with the various sections of the SRC Act, the Respondent’s liability to pay compensation, with the exception of gym expenses, continued from the time of those determinations.
BACKGROUND FACTS AND KEY FINDINGS
The Applicant suffered an aneurysm whilst at work on 15 October 2009. He provided a statement to augment his evidence,[9] and gave sworn evidence at the hearing.
[9] Exhibit 13.
As an overview we accept Mr Lieschke’s evidence as truthful. His report of symptoms and events has been consistent. He has been reported by doctors as being co-operative in medico legal referrals. There was no attack on his credibility. In any event his evidence was corroborated by his wife, Ms Narelle Leischke who gave evidence as well. It is noted they have now separated. Her evidence was very impressive as she set out her observations of his deterioration following the aneurysm. Thus we rely upon his histories given to the doctors over the course of these events as being accurate.
Mr Lieschke was born on 14 October 1977 and had a difficult childhood. His mother died of a stroke. His father had significant difficulties with alcohol, and Mr Lieschke’s oral evidence was that his childhood was difficult and the household chaotic. These observations are supported by his wife. He met his wife at the age of 14, when they first became friends. He would spend a considerable amount of time at his wife’s house with her family. In contrast to his own family life, his wife’s family was described as relatively normal and stable.
Mr Lieschke had a variety of jobs, having completed Year 11 at school. His father worked in various small businesses. The Applicant undertook training and worked as a cook for a period of time. He operated a taxi with his father from 1998 for some years. He then engaged in sales work with home loans and superannuation. He studied a Diploma of Financial Services. He worked for two years as a real estate salesman. He undertook work installing garage doors and erecting fencing. He employed other contractors in this work and then sold that business in 2006. As he progressed through the various employments, he would often be in the roles of marketing, sales and management and thus dealing with people. He also had other supervisory work with Ion Automotive. He commenced work with Telstra in October 2006. Shortly prior to that, he was selling wine. At Telstra, he took on the role of Acting Team Leader in May 2007 and then was promoted to permanent Team Leader in October 2009.
Mr Lieschke found the role of Team Leader stressful, but also enjoyable. He managed 15 to 18 staff, which was a role he found challenging. It was while performing that role that he suffered a subarachnoid brain haemorrhage on 15 October 2009 and received emergency treatment.
The haemorrhage required emergency treatment which was undertaken at the Royal Adelaide Hospital. A CT scan taken there showed the Applicant had two aneurysms on the left middle cerebral artery. He had surgery and the aneurysms were clipped.[10]
[10] Exhibit 1 p 36.
Medical evidence confirmed he has a very serious condition. Various percentages were provided, but the chance of death from his condition was noted at 30-50%. The chance of having a very bad recovery from the surgery was also very real. Medical evidence also confirmed that patients can have a good recovery from such a serious procedure. Dr Sandhu gave evidence that:
having seen more than 3500 of these in my lifetime, if I ended up looking like that and I’m still alive I’d be very, very grateful.[11]
[11] Transcript of Proceedings, Lieschke and Telstra Corporation Limited (Administrative Appeals Tribunal, 26 June 2018) (“Transcript 26 June 2018”)152.
The surgery was determined to have been successful and the Applicant noted improvements. It is important, however, to put that in the context that in the early stages following the haemorrhage there were descriptions of improvement when death or a very poor result from the surgery were significant risks. He did not improve to the state of complete recovery in that there has been constant complaint of symptoms (albeit with fluctuations in intensity) effectively from that time to the present. Those symptoms include those covered in the accepted claim as results of the aneurysm and the procedures to correct it, along with psychiatric injuries arising as well. These conditions were part of the accepted claims.
As noted, evidence was provided by Dr A Sandhu, Consultant Radiologist, to the Tribunal concerning, amongst other matters, the diagnostic scans.[12]
[12] Exhibit 11.
Dr Sandhu also showed to the Tribunal various slides of CT scans that were taken of the Applicant’s brain on different occasions. The slides to which he directed the Tribunal’s attention have been tendered as Exhibit 24. They represent a sample of many, many scans that were taken and those in the Exhibit were referred to by Dr Sandhu in his evidence.
In Exhibit 24, there are copies of slides of scans that were taken on the day of the haemorrhage, prior to the surgery. Dr Sandhu explained how those scans show blood on the left side of the brain.[13] Those descriptions of the pre-operation slides were supported by the evidence of Professor Burns.[14]
[13] Exhibit 24, slides 8/32; 25/32; 27/32.
[14] Transcript of Proceedings, Lieschke and Telstra Corporation Limited (Administrative Appeals Tribunal, 28 June 2018) (“Transcript 28 June 2018”) 269 - 270.
Another series of scans was taken on 24 April 2012. Dr Sandhu was able to demonstrate to the Tribunal that these scans, which also appear in Exhibit 24, demonstrate damage to the brain with a “minor loss of cortex (grey matter) resulting in localised gliosis (also referred to as ‘encephalomalacia’)”.[15]
[15] Exhibit 11.
The loss of grey matter was caused as a consequence of the aneurysm, the subarachnoid haemorrhage and the surgical treatment of the two aneurysms. Dr Sandhu gave the sequence: aneurysm first, the haemorrhage, then surgery, then gliosis.[16] What is important is that there is radiological evidence to show the loss of cortex in the brain which was not present before the aneurysm, but is still present now. Confirmation was also obtained from SA Medical Imaging in scans taken at the Royal Adelaide Hospital on 20 April 2012. The Consultant noted:
There is an area gliosis in the left anteroinferior temporal lobe, measuring a little under four centimetres, and has not significantly changed compared with the previous examination.[17]
[16] Transcript 26 June 2018, 52.
[17] Exhibit 20; Exhibit 24.
PROBLEMS FOLLOWING FROM INJURY
The accepted injuries from the subarachnoid haemorrhage have continued to affect the Applicant, although with fluctuating intensity. He has had better periods during which he attempted return to work programs, but was not able to continue with them.
It is noted that in the early period after his diagnosis, the Applicant expressed optimism regarding his recovery. We do not place a great deal of reliance on that given the very grave possible outcomes of his initial condition, including a significant chance of death. It is clear he had ongoing symptoms affecting his capacity. More practically, when he was attempting his return to work programs, one of which was in September 2010 for two hours per day, two days a week, he would become quite fatigued afterwards and on the following days. He discussed this with Dr Scamps.[18] At that time, he was enthusiastic about returning to full-time duties.[19] That enthusiasm was understandable given death was a possible outcome, but the extent of it misplaced as it turned out. There is continuity of complaint from the time of the accident up to the time of the Determinations in December 2015.
[18] For the ease of recognition in medical reports, and with no disrespect, we will use Dr Fitzgerald’s maiden name of Scamps as she then was.
[19] Exhibit 1 T31, p 95.
This level of complaint and difficulty was made quite clear in the evidence of Ms Narelle Lieschke. She gave evidence that over the past eight years the Applicant had not been able to maintain consistent health and wellbeing, nor to focus or concentrate nor undertake a role on a full-time basis.[20]
[20] Transcript 26 June 2018, 116.
Part of Mr Lieschke’s symptomatology included an inability to cope in social settings. He would become overwhelmed by noise and had an inability to filter out background noise, such as the conversations of others in restaurants. His wife observed he could not follow conversations because of that.[21] Dr Koopowitz also agreed that this phenomenon adversely affected the Applicant.[22] This would be an obvious impediment to undertaking his pre-injury employment.
[21] Transcript 26 June 2018, 122; Exhibit 1 T49, p 154.
[22] Transcript of Proceedings, Lieschke and Telstra Corporation Limited (Administrative Appeals Tribunal, 27 June 2018) (“Transcript 27 June 2018”) 180.
The Applicant also has difficulty communicating in the sense of pausing to search for words, which was obvious in the hearing of this case. Ms Lieschke advised that was a particular problem when the Applicant was stressed and his words would not come out fluently and he would have quite disjointed speech. This was not a problem, she stated, before the aneurysm.[23] The Tribunal accepts Ms Lieschke’s evidence about these matters and finds that it would also be a difficulty in his pre-accident employment where he was a manager of other workers in an environment that could be stressful.
[23] Transcript 26 June 2018, 118-119.
Mood swings were also described by Ms Lieschke and again, such symptoms would affect his ability in his pre-injury employment.
A practical effect of the injuries upon the Applicant was the enervating effect of sustained activity. When Dr Scamps undertook a series of tests for her examinations, for example in October 2011, she had to set extra time due to Mr Lieschke becoming fatigued. In April 2017 whilst the Applicant was able to complete the testing on the two days it took place, he was severely affected by it in the days that followed. He was disorientated and was described as a rambling incoherent mess, he had to rely on help from others, he developed severe headache and he vomited. He required medical treatment. Dr Scamps noted that his performance during the session did not indicate the severe response following – she would not have continued if it did.[24] Therefore, if the results of those tests might reveal some level of capacity, the capacity could not be replicated in normal work activity as the effort was so enervating as to completely incapacitate him afterwards.
[24] Exhibit 6.
Dr Scamps has had the opportunity to assess the Applicant on four occasions from 2010 to 2017. Overall, the pattern has been one of decline over those years, which she attributed to “his poor capacity to cope with stress” and attributed that to “a direct result of the injury”.[25]
[25] Ibid.
Other medical practitioners who have seen the Applicant over time have also expressed the view that his condition has remained constant from the time of the aneurysm.[26]
[26] Exhibit 10; Exhibit 1 T114, p 374.
The Applicant had a further procedure on 14 February 2013, namely a clipping of an aneurysm noted following scanning in December 2012. The medical evidence is that this was not a significant intervening act with regards to the symptoms following the initial injury in 2009. They continued to cause their problems. The Respondent noted a worsening of symptoms following that treatment,[27] as one would expect. Then the Applicant reported improvement following that second procedure.[28]
[27] Exhibit 1 T112, p 360, noted by Dr Jelbart.
[28] Exhibit 1 T75, p 247.
When considering the significance of any other neurological events since the 2009 aneurysm, Dr Scamps noted that whilst the surgical clipping in 2012 was such an event, it was ‘reportedly uneventful’.
Dr Koopowitz maintained his view in his report January 2016 that the Applicant continued “to be unfit for his full pre-injury duties since 2009.”[29]
[29] Ibid T129, p 456.
Whilst the Respondent specifically raised the issue of non-compensable factors interrupting the chain of causation, it did not submit that this further surgery was one of them and the Tribunal finds that it was not. The Applicant was incapacitated well before that procedure as a consequence of his original condition.
Headaches and the psychological symptoms have remained a consistent complaint since the initial injury.
Review of the medical evidence shows that there are consistent complaints made from the time of the initial injury up to the time of the evidence the Applicant gave in the hearing.
The injuries complained of and referred to in the medical evidence can be summarised as follows: Mr Lieschke suffers ongoing frequent headaches; anxiety; depression; memory difficulties; difficulties with concentration; difficulties with finding the appropriate words or sentences; difficulty processing information especially when overloaded by stimuli; fatigue and difficulty sleeping; personality changes; mood swings; and a lack of confidence. The symptoms set out are generally accepted. It is the cause of the symptoms and the extent of the symptoms which are disputed in this case.
The significant issue in the hearing was the cause of these ongoing symptoms. Dr Koopowitz was mindful of the loss of brain matter to support his view of physical brain injury. Dr Sandhu confirmed that the loss of brain matter, otherwise known as encephalomalacia, was present and the scanning he showed to the Tribunal demonstrated as much.[30] Dr Koopowitz took the view that the loss of brain matter can adversely affect brain function. A view was also expressed that due to the Applicant’s upbringing, which has been described above, he would have been more vulnerable to sustaining physical and cognitive losses due to the loss of brain matter than a person without those challenges.
[30] Exhibit 23.
In essence, Dr Koopowitz was of the view that the ongoing symptoms were attributable to the effects of ongoing physical injury and deficit in the brain, noting the “significant gliosis” shown on the CT scans of 12 November 2014.[31]
[31] Exhibit 1 T90, p 269.
It is fair to note at this stage that the views on causation put forward by Dr Koopowitz were not supported by others such as Dr Brophy and Dr Burns. Much of the hearing was taken up with this dispute: were the symptoms arising from physical injury, or a psychiatric/psychological response to the injury, or from a combination of the two? The Tribunal notes that the various experts who gave evidence were doing their best to assist the Tribunal. They had markedly different views but that is not uncommon. For example, Dr Burns accepted that the Applicant had symptoms but he could not explain them on the basis of a brain injury.[32]
[32] Exhibit 4.
For our purposes, we accept the Applicant has continued to suffer the symptoms of which he has complained since the aneurysm up until the time of his evidence, and that they arose as a consequence of his employment as accepted by the Respondent.
Respondent Review December 2015
The decision made to review the entitlement to compensation of medical treatment and incapacity payment was foreshadowed in a letter from the Respondent to the Applicant of 4 December 2015.[33] It was based on the examination performed by Professor Mattick on 7 September 2015. Professor Mattick’s view, as interpreted and relied upon by the Respondent, was conveyed to the Applicant when they advised him that he “probably recovered in 2011 from the subarachnoid haemorrhage you suffered on 15 October 2009 for which you underwent surgery the same day”. Thus, the views of Professor Mattick are important.
[33] Exhibit 1 T118, p 386.
The Applicant submits that Professor Mattick’s views are against the weight of the balance of medical evidence and in this regard we agree. Here, we note the tests undertaken by Professor Mattick, and the opinions that he has reached as a consequence of them based on his area of expertise. There is other evidence outside of his testing that demonstrates the significant ongoing disability the Applicant had and, in our view, continues to have.
Professor Mattick’s report dated 7 September 2015 upon which the Respondent relied did not suggest any evidence of exaggeration.[34] He stated: “I do not believe that he [the Applicant] continues to suffer cognitive impacts from the events in 2009 and suspect that the problems largely ceased around 2011”.[35] Professor Mattick also accepted the Applicant had ongoing emotional distress in the form of anxiety and dysphoria, but did not believe them to be disabling.[36] We accept the Applicant as a genuine historian, and so we find that these symptoms were disabling. We cannot agree with Professor Mattick’s views that ‘the problems’ largely ceased from around 2011, because the Applicant’s complaints to other doctors and the observations of his wife demonstrate continuity over that time, even allowing for variations in intensity of symptoms.
[34] Ibid T106, p 320.
[35] Ibid T106, p 344.
[36] Ibid T 106, p 345.
The Tribunal find’s that the Applicant’s disability has been caused by the original subarachnoid haemorrhage. This has caused either permanent physical injury or has given rise to a psychological injury. This is well summarised by Dr Scamps in her report of 10 April 2017,[37] in which she states:
In my opinion the most likely reason for this decline in neurological function is a response to significant emotional stress. He reported feeling overwhelmed and anxious which seems to trigger a migraine. Based on my knowledge of Mr Lieschke over a number of years, his poor capacity to cope with stress is a direct result of the injury in question. Whether this is due to psychiatric or neurological aetiology, or a combination of both, is difficult to determine. (emphasis added)
[37] Exhibit 6.
In this regard, Dr Scamps also noted that the surgical clipping in 2012 was reported as uneventful and we the Tribunal accept that.
In her evidence, Dr Scamps was also prepared to accept that there could be a contribution of organic brain damage, especially when looking at the evidence of Dr Sandhu. However, for our purposes, the injury, as defined in the SRC Act, arises if the ongoing symptoms are caused by physical or psychiatric components, or a combination of both as Dr Scamps says, so long as they arise from the initial injury. These views about causation were accepted by Dr Burns. He agreed with the proposition that if one accepts the Applicant’s complaint of symptoms as genuine, then it does not matter whether the symptoms were caused by physical or psychological problems or a combination of the both. [38] His view was that causation was less likely to be physical. However, we find the general proposition holds true.
[38] Transcript 28 June 2018, 283.
Dr Davis, Psychiatrist, expressed the opinion that the ongoing symptoms from which the Applicant suffered were more likely to be a consequence of a psychological response.[39] He did not doubt the ongoing problems as arising from that cause and said in his report of 21 June 2012:
I consider that most of his ongoing psychological and cognitive difficulties are a consequence of an anxiety disorder secondary to this brain injury.
[39] Ibid 250.
Also, in response to a specific question, Dr Davis said:
I did not identify any pre-existing or non-work related medical history of relevance to the claimed condition.
In this regard, it is of note that when the Applicant was examined in June 2012, Dr Davis took a history about the Applicant’s concern about his future finances. With regard to his relationship with his wife, the Applicant reported that whilst they had been in a stable relationship prior to the injury, there had been a lot of tension in the marital relationship over the previous 12 months. There was also reference to reduced libido and reduced sexual activity.[40] These issues where before him when he formed his opinions.
[40] Exhibit 1 T57, p 192.
Ms Lieschke’s evidence confirmed the history noted by Dr Davis. She was aware of immediate changes in symptoms following the initial haemorrhage in 2009. She confirmed the constant theme in the evidence of Mr Lieschke becoming overwhelmed and not being able to cope. The Tribunal heard evidence that Mr Lieschke had an inability to block out information, for example, sitting in a restaurant he would feel that he could hear all conversations going on around him and becoming overwhelmed accordingly. That is also consistent with Dr Davis making reference to the open workspace which was noisy and thus distracting.
Professor Mattick expressed the opinion that as a consequence of his testing in 2015 and review of other information, the Applicant’s problems had largely ceased around 2011. He attributed the symptoms to other factors, including the loss of his job and the medico legal process.[41]
[41] Transcript of Proceedings, Lieschke and Telstra Corporation Limited (Administrative Appeals Tribunal, 29 June 2018) (“Transcript 29 June 2018”) 328.
The problems described by Ms Lieschke have obvious ramifications. Becoming overwhelmed would lead to fluctuations in mood and the Applicant becoming angry. This led to family difficulties and difficulties with her relationship with the Applicant. This interrupted the family life in matters that should be enjoyable such as school holidays.[42] She described how the Applicant would then move into a shed at their house which he would use as a form of retreat to remove himself from aggravating situations. She described how friends had drifted away because of difficulties relating with the Applicant following the haemorrhage in 2009. We find these are direct consequences of the problems following the Applicant’s aneurysm.
[42] Transcript 26 June 2018, 120.
Ms Lieschke described the period following the initial haemorrhage in 2009 as “an incredibly hard time for me and for my children and for Chris”.[43] She described the pressure as “unimaginable” and could not see it improving. She made the determination to leave the marriage and noted as a consequence a significant deterioration in the Applicant’s mental state.[44]
[43] Ibid 114.
[44] Ibid 115.
Given the combination of medical evidence noted above, and the direct observations of Ms Lieschke, we are of the view that the problems with the marriage which led to its subsequent deterioration and breakdown are a consequence of the injury, rather than an intervening act. We find that the disability from which Mr Lieschke suffers was well-established prior to the matrimonial break-up which Ms Lieschke first raised with the Applicant on 30 October 2017.
Professor Mattick had different views with regards to the nature of the disability and its extent. He noted in his report of 7 September 2015 that whilst the Applicant may have suffered some cognitive inefficiency, he considered the condition was more to do with psychological distress than any brain damage. Professor Mattick did not share what he described as the negative, bleak prognosis of Dr Koopowitz, as he noted in his report of 15 March 2016, which is written more for the purpose of responding to the different medical opinions. Here, as noted, we have referred to the difference of opinion and the fact that the specialists can have legitimately held views as to medical problems that others might not accept.
We accept the consistency of complaint (although noting it could fluctuate). We also accept the references to the exhaustion and increase in symptoms following exertion, such as after the testing by Dr Scamps. Hence, whilst showing a level of ability for the purpose of testing, it does not demonstrate ongoing capacity if, as a result, it caused the Applicant to become extremely distressed and incapacitated afterwards.
The continuity of Mr Lieschke’s symptoms was noted by Dr Scamps, albeit with them becoming worse as time has passed. Dr Balnaves who has seen the Applicant on numerous occasions, noted that his condition remained “essentially the same” over the period of his consultations.[45] Dr Bate the psychologist saw the Applicant over a considerable period, noting he continued to experience significant difficulties in many activities of daily life.[46] Dr Davis also gave evidence that between his two consultations in 2012 and 2017, his mental state was essentially the same.[47] As noted, the continuity of symptoms is also clear from the evidence of Ms Lieschke. Finally, our acceptance of Mr Lieschke as a witness of truth helps us to accept the evidence of his continuity of symptoms, albeit there are fluctuations depending on the situation in which he finds himself.
[45] Exhibit 10.
[46] See, for example, exhibit 1 T114, p 374.
[47] Transcript 28 June 2018, p 249.
In forming our view, the Tribunal does not accept the opinions expressed by Dr Mattick, insofar as they suggest a recovery from 2011 to the point of the Applicant being able to obtain employment or no longer requiring treatment for the 2009 injury. We accept that there were ongoing problems caused by the initial injury in 2009 and a result of which Mr Lieschke was incapacitated for work and remains so.
NON-COMPENSIBLE FACTORS
The Tribunal does not accept that other factors have caused the psychological injuries that have overtaken the effects of the initial injury to operate as a novus actus interveniens. We have found a continuity of symptoms caused by the initial event, whether that be physical or psychiatrically occurring.
We have been directed to cases such as Nicolas v Comcare[48] and Koker v Comcare[49] and other similar cases. In our view, these matters must be determined on their own facts, but we can certainly reflect on other cases for guidance. In Nicolasv Comcare, significant distress arose as a consequence of the applicant’s son suffering significant mental illness and the effects that had upon his family. In Kokerv Comcare, there were psychological symptoms arising from a physical complaint and those arising from allegations of bullying. The Tribunal in those matters had to assess the competing causes of symptoms.
[48] [2007] AATA 1858.
[49] [2017] AATA 1432.
The problems that have arisen in the Applicant’s case occur as a direct result of the initial injury. The marriage separation, for example, whilst upsetting, occurred well after the initial event and well after the disabling effects of the injury were established, whether caused by physical brain injury or psychiatric reaction. The breakdown of the marriage was significantly caused by the Applicant’s injuries arising from the aneurysm. It was the Applicant’s medical problems caused by the initial event that caused his incapacity and his requirement for treatment.
The Applicant’s loss of employment (and increased anxiety) is a direct consequence of the original injury: the anxiety regarding loss of employment did not cause the disability, rather the anxiety is caused by the original injury. The anxiety is not, therefore, a new and intervening act. It would be a perverse operation of the SRC Act in our view if a worker lost his employment because he was deemed unemployable due to injuries, and then lost his entitlement to compensation because he was anxious about not having employment.
Procedural Issue
The Applicant has been involved in additional proceedings against the Respondent that were not part of the hearing which is the subject of this Decision. It was a matter involving determination of normal weekly earnings to assess the weekly incapacity payment (Weekly Earnings Matter).[50]
[50] AAT Application Number 2013/3892.
Counsel appearing for the Respondent at this hearing also appeared for the Respondent in that matter, and drew up a Memorandum of Observation of the Respondent at a Weekly Earnings Matter hearing on 31 July 2015. They concerned observations of the Applicant in that hearing on that occasion and made suggestions arising from them. We note that the observations made were quite appropriate in terms of a memorandum from Counsel to the instructing solicitor and would in all circumstances be regarded as a privileged communication, strictly for internal use. That was the counsel’s view - clearly marking the Memorandum ‘Subject to Legal Professional Privilege’.
The observations[51] were sent to Professor Mattick with a suite of other information for consideration for his opinions as set out in his report of 7 September 2015.[52] Rather than send the memorandum, the author could simply have asked the Professor to assume certain facts based generally on that information.
[51] Exhibit 16.
[52] Exhibit 1 T106, p 345.
However, this was one of many issues the Professor was asked to consider, not a dominant one. He placed more reliance on his and other specialist’s findings. In our view the forwarding of the Memorandum makes no material difference to the views formed by Professor Mattick. It makes no difference to our views as to the correct disposition of this matter, and we make nothing further of it.
Gymnasium Expenses
The Decision of 4 December 2015 refers to ongoing medical treatment costs, particularised as “ongoing gym program, reimbursement of pharmacy related expenses and gym program and occupational therapy services”.
We consider a gym program obtained at the direction of a treating medical practitioner would be compensable under s 16 of the SRC Act, provided it was reasonably incurred. Dr Balnaves provided a note dated 20 October 2015 requesting a gym program three times per week.[53] The Respondent was concerned as to the lack of detail on the required gym program, which would be a basis to assess its reasonableness.
[53] Ibid T110, p 357.
Not a great deal of evidence was provided on this particular item. As general comment by those who made it, a gym program would have benefits. Dr Scamps reported on 15 November 2011 that a gym program would assist the Applicant to maintain routine, to get out of the house and to maintain physical fitness. She considered this had therapeutic benefit.[54]
[54] Ibid T49, p 158.
Dr Koopowitz said in evidence that he regarded the gym participation from a more holistic perspective. He said the “workplace was an extended family, the extended family he never really had as a child.” The Doctor noted the general benefits of exercise and healthy living and the benefit here of a supported structured environment which he described as “that surrogate family, if you like, the workplace family”.[55]
[55] Transcript 27 June 2018, 188.
One can make a general observation that healthy living and exercise are appropriate measures for anyone in the community. The applicant has a suite of injuries, but not the sort where one would easily associate physical rehabilitation (such as a bad back or broken leg). If the gym was beneficial because of his difficult childhood that would not be a consequence of his injury.
We found the evidence to the reasonableness of a gym program lacking as at December 2015 and at the hearing. However, if his treating practitioners consider it is an appropriate treatment at this time for the injuries arising from the aneurysm and sufficient detail is provided to the Respondent it should be considered on its merits.
The other treatments and expenses such as pharmacy costs arising from treatment for his ongoing problems and occupational therapy expenses should be accepted from the time of discontinuance of payments.
CONCLUSIONS
The Tribunal finds that the Respondent is liable to pay compensation in respect of the injury suffered by the Applicant as it has resulted in incapacity for work and impairment. It has already been determined that the injury arises out of the course of employment and we find that it continues to do so. We find that the ongoing disability arises from the employment.
Further, The Tribunal finds that the Applicant is entitled to be reimbursed by the Respondent for the costs of the pharmacy related expenses and occupational therapy services incurred by him as directed by his legally qualified medical practitioner(s) that arise as a consequence of the injuries. We do not find that the Respondent had a liability to pay gym fees in December 2015.
We determine that the Applicant is entitled to be paid compensation by the Respondent for weekly incapacity payments including arrears from 23 December 2015 to the date of this order.
DECISIONS
The decisions under review are set aside and in substitution it is decided that:
a) The Applicant continues to suffer from the compensable injuries of ‘subarachnoid haemorrhage due to a ruptured left middle cerebral aneurysm’ and ‘anxiety and depression with mild cognitive changes’ which arose out of the course of his employment;
b) In relation to application 2016/1856:
i.the Applicant is entitled to be reimbursed by the Respondent for the costs of pharmacy related expenses and occupational therapy services expenses incurred by him as a consequence of his injury pursuant to s 16 of the SRC Act;
c) In relation to application 2016/2119:
i.the Applicant is entitled to be paid compensation by the Respondent for weekly incapacity payments, including arrears, from 23 December 2015 to the date of this order pursuant to s 19 of the SRC Act;
ii.Insofar as it does not lead to duplication of the orders made in relation to application 2016/1856, the Applicant is entitled to be reimbursed by the Respondent for the costs of medical treatment arising from the injury pursuant to s 16 of the SRC Act;
d) The Respondent is to pay the Applicant’s legal costs and disbursements under s 67 of the SRC Act;
e) The Tribunal requests further written submissions from the parties as to whether interest is payable on the unpaid income arrears as requested by the Applicant from 23 December 2015 to the date of this order, to be provided within 14 days of this order.
84.
85. I certify that the preceding 83 (eighty three) paragraphs are a true copy of the reasons for the decision herein of Member A J Ward, Member M O’Loughlin, and Member D Ben-Tovim
.......................[Sgnd]...................................
Administrative Assistant Legal
Dated: 11 October 2018
Dates of hearing: 25, 26, 27, 28, 29 June 2018 Advocate for the Applicant:
Solicitors for the Applicant:
Mr A Collett
Johnston Withers
Advocate for the Respondent: Mr J Wallace Solicitors for the Respondent: Sparke Helmore
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