LRJK and Telstra Corporation Limited (Compensation)
[2016] AATA 310
•13 May 2016
LRJK and Telstra Corporation Limited (Compensation) [2016] AATA 310 (13 May 2016)
Division
GENERAL DIVISION
File Number(s)
2015/0850
Re
LRJK
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Ms J C Kelly, Senior Member
Dr W Isles, MemberDate 13 May 2016 Place Sydney The reviewable decision is set aside and in substitution the decision is made that the applicant is entitled to receive compensation under sections 24 and 27 of the Act for permanent impairment for adjustment disorder with depressed moods assessed at 10% whole person impairment (WPI).
.................................[sgd].......................................
Ms J C Kelly, Senior Member
CATCHWORDS
COMPENSATION – whether applicant suffers an impairment – whether impairment is permanent – degree of permanent impairment assessed – whether applicant satisfies 10% whole person impairment – workplace accident – psychological injury – decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 27
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Ms J C Kelly, Senior Member
Dr W Isles, Member13 May 2016
THE REVIEWABLE DECISION AND THE TRIBUNAL’S CONCLUSION
The applicant seeks the review of a decision dated 12 January 2015 made by the respondent, Telstra Corporation Limited. That decision affirmed a determination made on 8 December 2014 that the applicant was not entitled to compensation for permanent impairment for adjustment disorder with depressed moods under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) because he did not satisfy the 10% threshold required by s 24 of the Act.
For the reasons that follow, the reviewable decision is set aside and in substitution the decision is made that the applicant is entitled to receive compensation under sections 24 and 27 of the Act for permanent impairment for adjustment disorder with depressed moods assessed at 10% whole person impairment (WPI).
BACKGROUND
The following findings are not contentious and are made on the evidence before the Tribunal.
The applicant was born in 1975. He married in 2001 and his daughter was born in 2005. He sustained a lower back injury when he fell during the course of his employment with the respondent on 9 January 2006. Liability was accepted for that injury on 12 January 2006. Consequently, on 5 September 2007 liability to pay compensation was accepted in respect of “lumbar strain and adjustment disorder with depressed moods”, sustained on 25 July 2007. The applicant’s employment with the respondent ceased in 2008.
On 8 March 2010 the applicant underwent an operation on his lower back.
In January 2012 he commenced his current employment with a contractor to the respondent which involves a one hour’s drive to and from his home. He works in two telephone exchanges in Sydney, doing varying hours, up to about 25 hours per week.
On 15 November 2013, it was determined that the respondent was liable to pay permanent impairment compensation under ss 24 and 27 of the Act in respect of lumbar back strain.
On 12 September 2014, the applicant completed a claim form for permanent impairment compensation arising from the psychological injury “severe anxiety depression”.
The applicant has never been treated by a psychiatrist but has been assessed by several psychiatrists since 2006 in relation to his compensation claims. He has been treated by his general practitioner, Dr O, since the 2006 injury. The applicant has consulted three psychologists since the onset of adjustment disorder with depressed moods secondary to his back injury.
THE LAW
Section 4 of the Act provides:
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.
Relevantly, s 24 of the Act provides:
(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.
The section goes on to specify a maximum amount for compensation for impairment (s 24(9), that the compensation will be an amount that is the same percentage of the maximum as the percentage determined according to the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”) and will be expressed as a percentage (s 24(4), (5) and (6)). Relevantly, compensation is not payable if the impairment is less than 10% (s 24(7)(b)).
Section 27 provides for the assessment of compensation for non-economic loss where compensation is payable under s 24 for permanent impairment.
Table 5.1 of the Guide relevantly provides:
5.1 Psychiatric conditions
Table 5.1: Psychiatric conditions
See note to Table 5.1 on following page.
%WPI
Description of level of impairment
0
Reactions to stresses of daily living without loss of personal or social efficiency
and
Capable of performing activities of daily living without supervision or assistance.
5
Despite the presence of one of the following employee is capable of performing activities of daily living without supervision or assistance:
reactions to stresses of daily living with minor loss of personal or social efficiency
lack of conscience directed behaviour without harm to community or self
minor distortions of thinking.
10
Despite the presence of more than one of the following employee is capable of performing activities of daily living without supervision or assistance:
reactions to stresses of daily living with minor loss of personal or social efficiency
lack of conscience directed behaviour without harm to community or self
minor distortions of thinking.
15
Any one of the following accompanied by a need for some supervision and direction in activities of daily living:
reactions to stresses of daily living which cause modification to daily living patterns
marked disturbances in thinking
definite disturbance in behaviour.
Notes to Table 5.1
1. Table 5.1 includes psychoses, neuroses, personality disorders and other diagnosable conditions. The assessment should be made on optimum medication at a stage where the condition is reasonably stable.
2. Supervision means the immediate presence of a suitable person, responsible in whole or in part for the care of the employee.
3. Assistance means the provision of assistance to the employee in performing the activities of daily living by a suitable person, responsible in whole or in part for the care of the employee.
4. Direction means the provision of direction to the employee by a suitably qualified person, responsible in whole or in part for the care of the employee.
5. Suitable person means a person capable of responsibly caring for the employee in an appropriate way.
6. Suitably qualified person means a person with the necessary qualifications, experience and skills to provide appropriate direction to the employee. Such persons include medical practitioners, nursing staff and clinical psychologists.
THE ISSUES IN THIS CASE
The issues in this case are whether:
·the applicant suffers an impairment as a result of the 2007 psychological injury,
·if so, whether the impairment is permanent; and
·if so, the degree of permanent impairment assessed according to the Guide.
THE EVIDENCE
The evidence included the following documentary material: “T” documents (Exhibit A1), reports from Associate Professor R, consultant psychiatrist, dated 18 March 2015 (Exhibit A2), Dr P, consultant and forensic psychiatrist, dated 4 March 2014 (Exhibit A3) and 4 March 2014 (Exhibit R1), Dr C, psychiatrist dated 21 July 2015 (Exhibit R2) and documents produced under summons from Nepean Blue Mountains Mental Health Access Team (Exhibit A4).
The applicant, Doctor C, and Associate Professor R, gave oral evidence to the Tribunal.
SUMMARY OF THE RESPONDENT’S CASE
The respondent relied primarily on the opinion of Dr C who examined the applicant on 13 July 2015. The following opinions are taken from his report.
Dr C considered that the applicant currently suffered mild, resolving chronic adjustment disorder with anxious and depressed mood, with good prospects of further resolution. He considered that the condition is related to the applicant’s work with the respondent:
given the lack of any other factors which would explain the persistence of a Depressive Disorder extending from six months after the injury. Currently the focus on claimed disability produced by compensation litigation is sustaining complaint.
Dr C considered that the applicant continued to suffer the effects of a psychiatric condition related to his employment and secondary to the accepted back injury “to a minor extent, however, there has been very significant resolution … and (the applicant) has discontinued medical treatment in response to the improvement. This is consistent with his current work regime.” In his opinion: “Further resolution can be expected, particularly, when the current litigation context with its focus on claimed disability is resolved”.
In relation to the question whether the applicant has any permanent impairment, “being an impairment that is likely to continue indefinitely, arising from the condition”, Dr C wrote:
Any current impairment may be reduced by treatment consistent with that which he had undertaken previously (general practitioner/antidepressant medication/ counselling). In my view however, any current psychiatric impairment is likely to be minimal and at a level at which further medical/psychological treatment is no longer indicated. I note that this is consistent with (the applicant’s) actions in ceasing all treatment over 12 months ago.
Dr C took no history of applicant’s wife assisting him.
Given his opinions, Dr C did not undertake an assessment under the Guide.
The respondent also relied on the opinion of Dr S1, consultant psychiatrist, who assessed the applicant on 12 November 2014. It was that report upon which the reviewable decision was made. The following is taken from that report.
Dr S1 diagnosed the applicant’s current condition as an adjustment disorder with anxiety and depressed mood of mild severity. He wrote: “There is no expected pathway of recovery – the outcome/course depends on the circumstances and the individual involved.” His opinion was that:
from the psychological perspective his prognosis is reasonable; he has shown an adaptive and constructive attitude – back at work on a full-time basis and trying to optimise his participation in life roles.
In answer to the question “Do you consider the effects of the condition will cease and, if so, when do you anticipate the effects will cease?” Dr S1 wrote:
In my opinion, unless there is significant improvement in his physical symptoms and their impact on his life, it is unlikely that his psychological symptoms will substantially subside.
In relation to whether the impairment is permanent, Dr S1 wrote: “In my opinion, the impairment is likely to be permanent – likely to continue indefinitely”. He assessed the impairment to be 5% in accordance with the Guide.
In relation to medical treatment, Dr S1’s opinion was:
there is no indication for psychological therapy or psychotropic medication – and he is not receiving any; this is entirely appropriate. The best “treatment” is to optimise his participation in life roles – which he is doing, to his credit.
The respondent noted that Dr S1 had not been required for cross-examination.
The respondent argued that based on the opinions of Doctors S1 and C, the applicant did not have a permanent impairment of 10% or more.
The respondent also relied on Dr P’s reports, and particularly the record of the applicant’s statements in the brief report dated 4 March 2014 in which the doctor assessed the applicant’s psychiatric impairment in accordance with the “PIRS” scale. Dr P assessed the applicant on 13 February 2014. The respondent relied on the applicant’s statements that “he continued to shower and dress daily without need for prompting or assistance, and that he shaved every second day. He managed to eat at least two meals per day.”
The respondent argued that while Dr P assessed permanent impairment at 10%, his opinion set out in his substantive report dated 4 March 2014 (Exhibit A3), was that the impairment was not permanent. That submission is based on the following statements in Dr P’s substantive report:
Given that his condition deteriorated recently in the absence of treatment, and that somatic treatment with antidepressant medications was recently recommenced, while further psychological treatment is being organised, I am unable to consider his impairment permanent.
Dr P’s opinion was that: “Permanency of impairment will be established once [the applicant] has been treated by a psychiatrist, as recommended above, and in accordance with the guidelines suggested”. He expected “that stabilisation should occur within a period of 6-9 months of this assessment”.
Dr P expressed the opinion that the applicant “is capable of performing activities of daily living without supervision, assistance or direction”. He proceeded to assess WPI “specifically in accordance with Table 5.1 (Psychiatric Conditions), as per the Comcare Guide to the Degree of Permanent Impairment and the Principles of Assessment from the Guide”. His opinion was “that his percentage of whole person impairment, albeit not permanent, can currently be calculated at 10%”.
The respondent argued that because the applicant did not undertake the treatment recommended by Dr P, he had not “undertaken all reasonable rehabilitative treatment for the impairment” as required by s 24(2)(c) of the Act.
The respondent criticised Associate Professor R’s opinion that the applicant suffered a permanent impairment and his assessment of that impairment as 15% WPI according to Table 5.1 of the Guide because the applicant’s wife directed some of the applicant’s activities. The respondent argued that the applicant’s wife was not a “suitably qualified person” as defined in Note 6 to Table 5.1 and therefore the applicant did not satisfy the 15% criterion. The respondent also argued that she was not providing supervision because supervision requires “the immediate presence of a suitable person” in accordance with Note 2. She was telephoning the applicant and leaving post-it notes for him.
In support of its case that the applicant’s psychological condition is not permanent, the respondent referred to various statements made by the applicant over the years to doctors and psychologists to show that he did not need assistance with his activities of daily life, and found medication and/or psychological counselling beneficial. The respondent submitted that the applicant did not have significant anxiety or depression and no suicidal thoughts when undertaking such treatment. Based on the evidence of Dr P and Dr C, there was a likelihood that there would be further improvement in the applicant’s condition if he pursued further treatment, including consulting a psychiatrist, and/or taking medication.
The respondent sought to deflect the applicant’s evidence that he stopped taking medication for his psychological condition because of the side-effects by pointing to statements he had made that some side-effects were from his pain medication rather than from the medication for his psychological condition and that the applicant reported improvement in his mood when the medication for his psychological condition was changed. The respondent also pointed to statements that the applicant had made about counselling having assisted him.
The respondent argued that the applicant’s not having attended a pain clinic demonstrated that he had not undertaken all reasonable treatment for the impairment. The respondent did not dispute that it had refused several requests from the applicant to be sent to a pain clinic.
In summary, the respondent argued that the applicant had not undertaken all reasonable rehabilitative treatment for the impairment and therefore it could not be said to be permanent.
The respondent accepted that there were 33 occasions out of 61 consultations with Ms L and Mr T, psychologists, when the applicant complained of suicidal ideation but sought to contrast that evidence with the applicant’s evidence that he experienced suicidal ideation “most of the time” to show that the applicant was exaggerating.
CONSIDERATION AND FINDINGS
We find that Doctors P, S1, C and Associate Professor R accept that the applicant has an impairment caused by his psychological condition. Their diagnoses of that psychological condition vary, but we use the diagnosis of the accepted injury, adjustment disorder with depressed moods.
Is that impairment permanent? The opinions of Associate Professor R and Dr S1 are that it is. Dr P did not think it was permanent but did make an assessment according to the Guide. Their assessments of the degree of impairment differ as noted above. Dr C does not think the impairment is permanent.
The difficulty in this case is the fluctuating nature of the applicant’s impairment caused by his psychological condition. It is not in dispute that the applicant has suffered a psychological condition since July 2007, that is, for more than 10 years. We find that the answer to the question lies in a close analysis of the applicant’s medical history.
Dr S2 was the first psychiatrist to assess the applicant. Two reports he wrote, dated 16 August 2007 and 27 August 2007, are in evidence. He saw the applicant once. The second report was a supplementary report addressing a report dated 24 July 2007 written by the applicant’s then treating psychologist, Ms L. It is apparent that the decision to accept liability for the psychological injury was based on Dr S2’s reports.
In his first report, Dr S2 said that the applicant had described:
very considerable improvement in his condition as a result of taking a standard dosage of a standard antidepressant, Lexapro, at 20mg, interestingly, at night, and as such I would expect that, having taken this medication now only for three weeks, his condition will almost certainly very substantially resolve, in, say, a further three weeks.
In his second report, Dr S2 maintained his diagnosis of Adjustment Disorder with Depressed Mood, “and, because of a degree of accompanying self-destructive violence, an accompanying Disturbance of Conduct”. His opinion was that the applicant’s depression “is best seen in the context of an Adjustment Disorder, in view of an excessive response to pain-related issues and associated disability”. He did not consider that the situation had reached the severity of Ms L’s diagnosis, Major Depression. Dr S2 considered that the psychological approach Ms L proposed:
should be helpful, although, interestingly, [the applicant] may find, in possibly a further three weeks’ time, that has improved to such an extent with the antidepressant, that he does not require as comprehensive psychotherapeutic approaches…
Both Dr S2 and Ms L reported an incident in late July 2007 when the applicant went to his garage, tied a noose, and placed it around his neck. It was impulsive rather than planned. He told Dr S2 that his two and a half year old daughter banged on the garage door, calling him. He did not proceed to hang himself. Dr S2 reported that the applicant talked about having similar feelings on a number of occasions after that, but not to the same extent. Ms L reported suicidal ideation.
Ms L’s second report, dated 19 November 2007, included the following information. She had had 12 face-to-face sessions of treatment with the applicant. She listed nine matters the treatment addressed, including psycho-education on the nature of depression and pain, monitoring suicidal ideation, mood and thoughts, and cognitive restructuring to address the specific pain cognitions and depressed mood. She reported that:
Overall, his progress has fluctuated…. When [the applicant] was cleared to return to work he was functioning well and in an optimistic frame of mind. Then, not being able to return to work when he was ready and wanting to has… contributed to an exacerbation of his depressive symptoms.
Ms L’s third report dated 14 March 2008, included the following information. She had had a further five face-to-face consultations with the applicant and one cancelled consultation. The applicant had gained employment as a home loan advisor in February. She listed ten matters the subject of treatment. Again, Ms L reported that the applicant’s mood had fluctuated and recorded the details. On 29 February 2008, the applicant reported some suicidal ideation. On 7 March 2008 he appeared quite depressed. He left the session prematurely. She was concerned about his mental state and spoke to his wife and NTD (nominated treating doctor – Dr O) to advise that she was concerned about his mental health. Shortly afterwards, his rehabilitation consultant phoned and said she had spoken to him and his mental state had improved a little. Ms L wrote:
His recent decline appears to be related to his hopelessness and uncertainty about the future, after being left in the dark about what his future earnings will be once his employment with Telstra is finalised.
The applicant had ceased working for the respondent at that time. Ms L went on maternity leave and the applicant was referred to Mr T, psychologist.
Mr T’s first report is dated 4 July 2008. He had seen the applicant six times. The treatment included cognitive behaviour therapy (CBT). On 14 April 2008 the applicant reported his mood was 3-4 out of 10. On 24 April 2008 he rated his mood over the last two weeks as 5-6 out of 10 and reported no suicidal ideation. On 23 May 2008 the applicant rated his mood over the last month as 6-7 out of 10. On 19 June 2008 he rated his mood of the last four weeks at 5 out of 10. On 27 June 2008 the applicant presented as considerably depressed. In a telephone conversation on 4 July 2008, the applicant said that he was continuing to work and his mood was 5-6 out of 10. “He reported that as a result of his visit to the hospital he has been ‘scared into realising’ how serious his mood had become.” The Nepean Mental Health Access Team reported to Mr T in a telephone conversation that the applicant had been prescribed Zoloft 75mg.
Mr T stated that:
the applicant “appears to have made good progress up until our last treatment session. His decline in mood appears to be related to his uncertainty about the future as a consequence of delayed insurance payments in addition to ongoing dissatisfaction with his current employment.
Mr T’s second report is dated 4 September 2008. The applicant had attended three of four sessions of treatment but did not attend the second. Mr T wrote: “Due to an improvement in his symptoms, no further treatment is recommended at this stage”. Mr T reported that during the last treatment session the applicant rated his mood as 7-8 out of 10, reported no anxiety symptoms and said that the level of constant pain had reduced to 2-3 out of 10, which increased at unexpected times to 7 out of 10 when he suffered a muscle spasm in his back. He was taking Zoloft 75mg.
Mr T’s third report is dated 24 February 2009. In a telephone conversation on 4 February 2009, the applicant reported a return of his depressive symptoms and requested further treatment. He attended an assessment session on 9 February 2009 and one treatment session on 19 February 2009. The applicant reported ceasing antidepressant medication around October 2008 and recommencing taking Zoloft 100mg on 6 February 2009. He took Oxycontin (20mg) to control his pain.
The applicant told Mr T the following: He was functioning well in October/November 2008. As a consequence of reduced travel restrictions he was able to achieve more sales. However, his pain became unbearable and his travel restrictions returned. He reported that he became frustrated and despondent about his restricted earning capacity and worsening depressive symptoms just before Christmas 2008. He attempted to improve his situation by applying, unsuccessfully, for 16 other positions in January 2009. He thought the insurance company had underpaid him several times and believed that they were “attacking” him on the phone when he tried to rectify underpayments. That left him feeling invalidated and very uncertain about the future. That has led to a worsening of his mood and increased anxiety, culminating in conflict with his partner and fears for the future of the relationship. He rated his pain level as 5-6 out of 10.
Mr T’s fourth report is dated 27 April 2009. From 10 March to 24 April 2009, six treatment sessions were scheduled. The applicant cancelled two of them with less than 24 hours’ notice. Mr T wrote that there seemed to have been some improvement in the applicant’s depressive symptoms since returning for treatment. In the last session, the applicant rated his mood as 5-6 and his pain as 4-5, with exacerbations up to 7 out of 10. The applicant said that he was currently prescribed Pristiq (50mg) and Oxycontin (20mg) by Dr O. The applicant obtained test scores reflecting depression in the moderate range and anxiety in the severe range.
At the end of the report, Mr T recommended a further six sessions of treatment. He recommended several treatment strategies, including relapse prevention.
Mr T’s fifth report is dated 12 August 2009. During the recent sessions, the applicant reported worsening pain, rated as 6-7 out of 10, which had forced him to consider surgery. He rated his mood as 6-7 out of 10 at the last session. Although fearful about the operation, he reported minimal physiological anxiety over the last week. The applicant feared panic attacks in the lead up to the operation. His test scores were in the minimal range for both depression and anxiety. Mr T recommended a further six sessions of CBT to assist the applicant with his fears about the forthcoming operation.
The respondent referred the applicant to Dr R, consultant psychiatrist, who assessed him on 16 October 2009 and wrote a report dated 21 October 2009. The applicant told Dr R that Endep 10mg had had no effect. He took Zoloft 100mg which Dr O changed to Pristiq “due to heightened anxiety”. Pristiq caused nausea and he ceased it after two months. He reported that his mood was slightly better when he took the medications but he has not continued to take them. He was not taking pain medication. Pain was keeping him awake at night. He reported that the previous week he wrote a suicide note to his wife, drove to the bush with a noose in the back of the car and planned to end his life but a friend came to his rescue. He had “been in a high level of pain last week”.
Dr R diagnosed a Major Depressive Episode. She regarded the applicant’s prognosis as guarded. In her opinion, his pain symptoms were driving his depression. She recommended referral to a psychiatrist with experience in pain management. She said that the applicant had not found an antidepressant that did not cause side effects. She recommended that the opinion of a treating psychiatrist regarding the applicant’s suitability for a pain management program at Royal North Shore Hospital. She commented: “It is likely that his condition is fluctuating in relation to his mental illness as his pain fluctuates”.
In relation to work, Dr R wrote:
In my opinion, there needs to be a balance in relation to how much work [the applicant] can do in regard to his depressive illness. Finding a position that is part-time and not too stressful would allow him to increase his confidence and feel better about himself and more hopeful about his future which would be in itself a treatment for his depression given his high work ethic and motivation to return to work.
The applicant told Dr R that he would like to do a hands on technical job. He did not have the confidence to do sales work.
Mr T, psychologist, wrote a sixth report dated 21 May 2010. He did not list the occasions he had seen the applicant since his previous report. However, the applicant had undergone surgery on his back. The applicant “denied any significant depressive or anxiety symptoms in the last two weeks”. The applicant had ceased physiotherapy after the operation because of increased pain, but was about to resume physiotherapy with the hope that would reduce his pain levels. Mr T recommended no further treatment at that time.
On 23 December 2010, Mr T wrote a report to Dr O. He stated that the applicant reported worsening mood and pain and re-presented to the practice where he had had one session paid for by the insurer, and one paid for by Medicare. The applicant reported symptoms consistent with Major Depressive Disorder and Chronic Pain. The applicant reported that after initial improvement in pain post-operation, his pain escalated and subsequently his mood deteriorated. He had increased anxiety, and began experiencing panic attacks on occasion, when driving or trying to go to sleep. He was worrying about his future, his finances and thinking that he would not be able to provide for his family. The applicant scored within the extremely severe range on depression, anxiety and stress.
Dr O wrote a report dated 10 January 2011. He had been treating the applicant since 10 January 2006 for his workplace injury. The applicant’s medications at the date of the report were Endep 50mg 3/day (antidepressant) and Norspan 10mcg 1/week (pain relief). The applicant was in constant pain and very anxious (depressed). The March surgery “has not completely relieved the pain”. The applicant was to see his surgeon the following month.
Mr T wrote his eighth report, dated 24 January 2011, at the request of the respondent. He had not seen the applicant since his 23 December 2010 report. Mr T related the applicant’s depression to the experience of chronic pain and the loss of quality of life subsequent to his back injury. He recommended that the applicant “be referred to a specialist pain management clinic for comprehensive assessment and treatment of chronic pain within a multidisciplinary framework”.
The applicant saw his neurological and spinal surgeon, Dr S3 on 8 March 2011, 6 September 2011 and 15 November 2011 in relation to his back pain.
Dr O wrote a report to the respondent on 23 December 2011. He stated that the applicant had found new employment which “will assist him with some of his psychological problems”. The applicant continued to complain of severe pain which physiotherapy was not helping. His chronic pain “still causes him depression”. His medications were Oxycontin 20 bd and Endep 50 nocte. Dr O agreed with Mr T’s January 2011 recommendation for referral of the applicant to a pain clinic.
On 28 June 2013, the applicant saw Dr B, orthopaedic surgeon, who prepared a report of the same date. The applicant had obtained some Telstra work with a contractor and was working at an exchange in North Sydney. Dr B reported that the applicant had difficulties with analgesics in the past and was very reluctant to take any medication and was managing with measures such as heat packs and exercise. Dr B assessed the applicant has having 23% WPI in accordance with Table 9.17 of the Guide.
On 14 February 2014, Dr O wrote a letter to Mr O, clinical psychologist, referring the applicant for treatment. The applicant’s “current medications” were Avanza tablet 30 mg 1 tab nocte; Maxamox 1,000mg 1 tab b.d a.c, and Targin 40mg/20mg 1 tab b.d p.r.n.
Mr O wrote a letter dated 20 February 2014, addressed only to “Dear Sir/Madam”. He wrote that he was treating the applicant using various CBT strategies.
In the non-economic loss questionnaire (T35) which Dr O signed on 27 August 2014, the applicant wrote that he was suffering depression and had been on various antidepressants which had had little to no effect. He also claimed to suffer insomnia due to his depression and anxiety.
It is significant to this decision that the applicant attempted suicide on 21 January 2015 after returning from a holiday to the Gold Coast with his family. He reported this attempt to Associate Professor R and Dr C and gave evidence about it at the Tribunal hearing.
The applicant said at the hearing that during the holiday, he had not gone to theme parks but stayed in the hotel most of the time because of his pain. He spent some time with a friend of his who lives there. Before the return flight the applicant took anti-anxiety medication that Dr O prescribed. The previous year, the applicant had a panic attack and could not board the flight to the Gold Coast. He drove up, while his wife and daughter flew. He was prescribed anti-anxiety medication by a doctor on the Gold Coast.
After returning from the holiday in 2015, he and his wife argued about the work that needed to be done on their house. The applicant felt frustrated that things were not getting done. He would normally have done them himself. He felt he had let his wife down. He took some tablets and was conveyed to hospital. He remembers going to bed and waking up in hospital.
The history of presenting problems in the summons documents produced by the PLAINS Access Mental Health is dated 25 January 2015. It records the following. The applicant presented with a deliberate overdose on prescribed medication in context of physical and psycho social stressors. He suffers from chronic back pain sustained in work place accident 9 years ago. He suffers exacerbations of back pain which he manages through PRN Targin. He had an argument with his wife in the context of a renovation of the house. He was upset as he could not do it himself and feels quite inadequate as a husband. Also, he stopped his regular antidepressant around six months ago which he felt was not working for him. The applicant reported low mood, anhedonia, reduced energy levels, suicidal ideas when pain gets worse but not any worse than when he was on antidepressants.
The person recording the information commented that the pain is probably getting worse as he got admitted to hospital in December, his first time in years, and has been advised to see a neurosurgeon in March for review - but he is reluctant to acknowledge that.
Dr C claimed in his report that those documents provided a different version of events from that the applicant gave him. The version the applicant gave him was similar to the versions the applicant gave to the Tribunal and the presenting problems set out above.
Dr C was referring to the record in those documents of the home visit on 26 January 2015. That record includes the following: the applicant said that he returned from a recent holiday to Queensland and returned on 24 January 2015. He did not like flying and that in the past had used Xanax for flying as prescribed by his GP. “On return he took 4 x 2 mg tablets as not knowing how strong they were.” He did not remember much about Saturday afternoon and was unable to recall arguing with his wife about home renovations. He denied depressive symptoms and said that he had been better in the last 12 months. The applicant believed that he had come to accept his situation with is back in a better way. He said that medications did not help and he was seeing Le Roy (Mr O), psychologist, and found it helpful and would consider returning to see him.
Dr C considered the reported suicidal behaviour episodes and reports of suicidal thoughts, going back as far as Dr S2’s reports. In his opinion:
they are more likely to represent impulsive attention seeking behaviour, rather than being representative of serious depressive disorder. The context in which the behaviour has been undertaken, particularly the most recent, 2015, seems consistent with this view and with drug intoxication.
That is, he considered that the 2015 incident involved an accidental drug overdose.
We consider that Dr C has given insufficient attention to the presenting problems recorded on 25 January 2015 in the PLAINS Access Mental Health documents which show that the applicant had suffered increased pain just before that such that he had been admitted to hospital for “the first time in years”, and had taken an overdose deliberately. Taking that incident into account with the two earlier aborted suicide attempts and the lengthy history of reports of suicidal ideation, we do not accept Dr C’s opinion that the behaviour is attention seeking. We note that at the time of the home visit the applicant did not remember much about the events of the previous afternoon. In that circumstance, little weight can be given to what he said then, compared to the notes of the presenting problems the previous day.
Despite the lengthy history of the applicant’s psychological condition, including the 2015 suicide attempt, Dr C insisted that the applicant can continue to adjust to his pain. In cross-examination about diagnosis according to DSM-4, he provided a diagnosis of chronic resolving adjustment disorder. We do not consider that the applicant’s history supports such a conclusion.
Further, in our view, Dr C exaggerates the significance of the applicant’s capacity to work and the “current litigation context, in which this report and others have been prepared, is likely to be perpetuating complaints of disability which will further resolve when legal matters are resolved”.
Dr R’s assessment and opinion, set out above, accurately predicted that the applicant’s condition would improve if he had appropriate employment, although subject to his level of pain, as reflected in in his 2015 suicide attempt. While accepting that the applicant’s psychological condition was caused by the applicant’s pain, Dr C did not give appropriate consideration to that relationship.
For those reasons, we do not accept that Dr C’s opinion is well-considered.
For the above reasons, we prefer the analysis and opinion of Associate Professor R to that of Dr C. In our opinion, Associate Professor R’s assessment gives the history of psychological impairment appropriate consideration and his conclusions are soundly based.
Associate Professor R diagnosed “a somatic symptom disorder (likely centrally medicated chronic pain) and a persistent depressive disorder” using DSM-5. We accept his opinion that the applicant’s depressive symptoms seem to have been consistent over time, “and whilst there is some fluctuation in their severity, the suicidal behaviour has been characteristically capricious and impulsive”. We accept Associate Professor R’s opinion that ‘there is a poor prognosis and that the applicant’s chronic pain appears to have become effectively “hard-wired”, and given his depressive symptoms are secondary to this, the same applies. There is a risk of completed suicide.’
We accept Associate Professor R’s opinion that the applicant suffers permanent impairment. He provides an arbitrary date of early 2012 as the date of onset or permanent impairment “which reflects his current limited work capacity…” “but this has gradually evolved over time”.
We accept Associate Professor R’s opinion that treatment would be to maintain the applicant’s function and prevent deterioration, that is, it is for care rather than cure, which is in contradistinction to the opinion of Dr C. Dr S1’s evidence supports a finding that the impairment is permanent. He did not prescribe further treatment. We note that Dr S1 had assessed the applicant before his January 2015 suicide attempt, whereas Associate Professor R’s assessment occurred shortly after that.
For those reasons we find that the applicant has a permanent impairment caused by his accepted psychological condition.
Degree of permanent impairment
The next question to address is the degree of the permanent impairment arising from his accepted psychological condition. As set out above, Dr S1 found it to be 5%. While not finding a permanent impairment, Dr P made an assessment of 10% according to the Guide, and Associate Professor R’s assessment was 15%.
Associate Professor R’s assessment of 15% was based on his opinion that the applicant “demonstrates impairment in activities of daily living in the domains of self-care, sleep and social and recreational activities”. The applicant:
requires supervision from his wife. He needs to be woken from sleep, have his day structured according to the requirements she lays out by written instructions or texting, and also tends to neglect self-care without her involvement.
He concluded that the applicant:
has impairment in various domains of activities of daily living and requires supervision and direction in activities of daily living. He reacts catastrophically to stresses in daily living with dangerous or potential lethal suicidal behaviour, irritability leading to breakdown in his relationships with his extended family and imperilling his marriage and employment, self-reproach and diminished motivation.
Dr P’s assessment of 10% WPI caused by the applicant’s psychiatric condition (although not permanent) was based on the following:
[The applicant] reported some decreased attention to self-care and grooming, much decreased involvement in social and recreational activities, some fear of travelling by aeroplanes, decreased memory and concentration.
The only reference Dr P recorded about the applicant’s wife’s role in relation to his daily life is his comment that she suggested he see his general practitioner because she noticed that he was feeling depressed.
Dr S1 did not provide a detailed assessment, but set out the criteria for 5% WPI and stated that the applicant had that degree of impairment. The applicant gave Dr S1 no history of being supervised or directed by his wife in his activities of daily living. Dr S1 noted the following impacts of the applicant’s current psychological symptoms on the activities of daily living:
The applicant lacked motivation in relation to self-care and personal hygiene and was not as concerned about his appearance as before but was psychologically independent in his activities. He lacked motivation in relation to his social/recreational activities. In the previous two months he had had one social outing. He was anxious travelling on public transport in case he was knocked. He drove a car most days of the week. He had travelled by train to the city for the consultation. He tends to be withdrawn and irritable with family and friends. He has difficulty focusing and has a patchy memory. He reads “car stuff” on the computer but otherwise did not do much reading. He had no overt cognitive impairment the consultation. He had no psychological impediment to working full-time and normal duties.
Dr C reported that the applicant believed that he was too often in pain to socialise regularly and attributed his interrupted sleep to pain rather than to depression. Dr C noted that the provided a reasonable narrative of his history but “details of treatment were rather vague”. There was no mention of the applicant being supervised or directed by his wife in relation to his activities of daily living.
At the hearing, the applicant’s evidence about the role of his wife was generally consistent with the history he provided to Associate-Professor R. In cross-examination, the respondent asked the applicant about there being no mention of his wife giving him assistance in the reports of Drs S1, P and C, and in the telephone call from Mr O on 2 October 2015. In that call, Mr O suggested that the applicant return to see him because he had not seen him since March 2014. The applicant said that he did not remember the conversation with Dr S1 that well. He said that he did not recall Doctor P asking questions about his wife. The applicant said that the telephone conversation with Mr O was short. He said that Dr C did not ask about his wife.
After telling the Tribunal about his work, the applicant was asked about his concentration in life outside work. The applicant told the Tribunal that his wife helps him a lot. She writes post-it notes and rings him every morning to make sure he is up. She makes sure he knows what has to be done with his daughter to get ready for school. His wife is “pretty much” paying the bills. He forgets to do things that need to be done. He said that he had no problem remembering what to do for his daughter before 2006.
The Tribunal does not give the role of the applicant’s wife the weight Associate Professor R did. The applicant’s daughter was around one year old at the date of the physical injury in 2006. She was apparently going to childcare at the time. In March 2015 when the applicant saw Associate Professor R, his daughter was 10 years old. The applicant did not mention his wife’s supervision and direction to other doctors, including Dr C. We do not consider it unusual for a mother to be responsible for the activities of a ten year old and therefore advising the father what his daughter is doing on a day to day basis and consequently what he needs to do for his daughter, particularly near the beginning of a new school year and shortly after the applicant’s attempted suicide. The “supervision and direction” described by the applicant related mostly to his daughter’s activities rather than to his. While the applicant’s activities involving his daughter may be his activities of daily living, we do not accept that the supervision and direction is needed because of the applicant’s psychological impairment. In making that finding, we have taken into account the applicant’s evidence about his wife’s role and about why there was no reference to his wife’s supervision and direction in the reports of other doctors. We do not accept the applicant’s connection of the supervision and direction in relation to his daughter’s activities to his psychological impairment for the reasons given above. That the applicant did not mention the matter to other doctors, including Dr C, reinforces that finding. We found his evidence about that matter to be unpersuasive. To the extent that his wife’s supervision and direction relate to his other activities of daily living, they are minor prompts.
We do not consider that the “supervision and direction” provided by the applicant’s wife as described by the applicant meets the criteria for 15% permanent impairment, even accepting the interpretation of “suitably qualified” argued for by the applicant. The applicant argued that “suitably qualified” in Note 6 to the Table is not limited to people with qualifications similar to those listed in the last sentence of the note and that the applicant’s wife was relevantly suitably qualified as she knew him intimately and had the relevant experience and skills to know what needed to be done to keep him functioning. The applicant’s submission did not adequately address the meaning of “supervision” in Note 2 to the Table, “the immediate presence of a suitable person …”, in relation to the reminders she gave him by telephone and in post-it notes she left.
Further, we consider that a need for some supervision and direction in activities of daily living is inconsistent with the applicant’s capacity to drive to and from work and the nature of his work in telephone exchanges. He said that he worked five days a week, four hours a day and sets his own pace. In cross-examination he said that he might work eight hours in a day or half an hour. We have taken into account his evidence that he has an employee who works two days a week. He said that he employs that person because of the “physical side” of the work and that the employee “will check work for him and fix mistakes”. We did not understand it to be argued that such assistance amounted to supervising and directing the applicant in the activities of daily living. However, for certainty, we do not consider that that employee, who works two days a week, is supervising and directing the applicant, assuming that work is an activity of daily living within the meaning of the Table.
Taking into account all the evidence before us, including Associate Professor R’s assessment in relation to the applicant’s impairment according to the table, we find that the applicant satisfies the criteria in the Table for 10% WPI. In summary, he has demonstrated reactions to stresses of daily living with minor loss of personal or social efficiency. He has reported anxiety and panic attacks, including not being able to board a plane and so driving from Sydney to the Gold Coast rather than flying. He has decreased attention to self-care and grooming. He has a much decreased involvement in social and recreational activities. We accept that the aborted suicide attempts satisfied the requirement of lack of conscience directed behaviour without harm to community or self. The applicant’s evidence to the Tribunal and reports to psychologists and psychiatrists demonstrate concentration difficulties and decreased memory which can be worse when he is on medication. Those matters satisfy the criterion “minor distortions of thinking”. We note that Associate Professor R’s assessment of the applicant’s impairment against those criteria meet those for 15% WPI, however, the applicant does not meet the criteria relating to supervision and direction in activities of daily living for the reasons given above.
For the above reasons, the applicant has an impairment which is permanent and which is 10% WPI having regard to the requirements of Table 5.1 of the Guide.
For those reasons, the applicant is entitled to receive compensation under sections 24 and 27 of the Act.
The reviewable decision is set aside and in substitution the decision is made that the applicant is entitled to receive compensation under sections 24 and 27 of the Act for permanent impairment for adjustment disorder with depressed moods assessed at 10% whole person impairment (WPI).
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Ms J Kelly, Senior Member and Dr W Isles, Member ...............................[sgd].........................................
Associate
Dated 13 May 2016
Date(s) of hearing 31 March and 1 April 2016 Counsel for the Applicant M Gollan Solicitors for the Applicant Slater and Gordon Lawyers Counsel for the Respondent B Kelly Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Remedies
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Statutory Construction
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