Maida and Comcare

[2004] AATA 231

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 231

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/404

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GUISSEPPE MAIDA

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date8 March 2004

PlaceAdelaide

Decision The Tribunal affirms the decision under review.  In relation to the issue of the costs of the earlier proceedings, the subject of the Federal Court appeal, there will be liberty to the parties to apply.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

COMPENSATION – permanent impairment – matter remitted by Federal Court for further hearing and determination – decision affirmed

Safety Rehabilitation and Compensation Act 1988 ss 24, 27

REASONS FOR DECISION

8 March 2004   Senior Member WJF Purcell         

1.      This matter came on for Hearing as a result of the Federal Court remitting the applicant’s claim to the Tribunal for further hearing and determination in accordance with His Honour’s Reasons for Judgment.  The previous Tribunal had set aside a Comcare decision to deny liability for payment of compensation to the applicant for permanent impairment in respect of an accepted condition of schizophrenia.  The Tribunal substituted a decision that the applicant was entitled to compensation pursuant to ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (the Act), and remitted the matter to the respondent for the calculation of compensation payable.  The Tribunal ordered that the respondent pay the applicant’s costs.  His Honour also set aside the Tribunal’s decision that the respondent pay the applicant’s costs of the application for review, and remitted to the Tribunal the issue of costs of the application for review of the delegate’s decision, for reconsideration according to law.

2.      The applicant was represented by Mr Britton of counsel, and called Dr P Davis, Psychiatrist, as a witness.  Mr Wallace of counsel appeared for the respondent (Comcare), which called Professor R Goldney, Psychiatrist, as a witness.

3.      The learned Judge stated at paragraph 28 of his Reasons for Judgment that he considered that the following propositions put by Comcare, correctly summarised the state of the law:

“20.1The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.

20.2If there is no change in the underlying patho-physiological condition causing an  impairment, any worsening of that impairment will not constitute a new or distinct impairment.

20.3A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment – that is, the development of a new impairment.”

4.      His Honour said also at paragraphs 38 and 39:

“38      A significant deterioration in the degree of permanent impairment from any injury may indicate that a discernible or measurable underlying pathological change has occurred.  Examples readily suggest themselves. An employee may have a back injury producing lower back pain, and subsequently pain extending into the legs indicting the possibility of further pathological change in the lower back so as to impinge upon nerve roots which previously were unaffected.  In the case of a condition such as schizophrenia, there may or may not be some further patho-physiological changes which account for a significant deterioration in symptoms.  The Tribunal at one point described the significant worsening of the respondent’s symptoms, and so of the degree of his permanent impairment, as being “marked by significant alteration”..  I have concluded that it then erred in failing to determine whether there had in fact been a qualitative change in the patho-physiological condition underlying his schizophrenia, and in regarding a change in the degree of his permanent impairment as itself constituting a new impairment under the SRC Act.

39.      However, the Tribunal might upon the whole of the evidence conclude that there had been some further patho-physiological change in his underlying condition.  It may be satisfied that the deterioration in symptomatology is not indicative merely of the progression or gradual worsening of the degree of the respondent’s impairment.  It might of course also reach the view that there has been no change in the underlying patho-physiological condition so that the worsening of the degree of impairment will not constitute a new or distinct impairment.  But I do not think it is for the Court to foreclose those options to the Tribunal when the Court has concluded that the Tribunal, through legal error, has not addressed the respondent’s claim correctly.”

5.      It is not in dispute that the applicant’s condition has worsened since 1 December 1988.  The previous Tribunal (Senior Member Kiosoglous and Dr Linn, Member) found that there had been a 20% worsening of the impairment, which accords with the oral evidence of both Professor Goldney and Dr Davis.

6.      The applicant submits that this worsening is not a gradual worsening, but a worsening that has occurred in the applicant because of the qualitative change in the patho-physiological condition underlying his schizophrenia.

7.      Comcare maintains that there is no separate malfunction subsequent to 1 December 1988.  The malfunction, or the patho-physiological condition underpinning the applicant’s symptomatology and his impairment, is the same today, as before 1 December 1988.  There is no change in the underlying patho-physiological condition causing an impairment.  The worsening of the impairment does not constitute a new or distinct impairment.

8.      The applicant gave evidence, which I accept, of the drastic effect the condition has had on his lifestyle and enjoyment of life.  His sister, Ms Anna Maida, gave evidence, which I accept also, of the enormous burden the applicant’s condition places upon his mother, in particular, with whom he resides.  The applicant’s displays of anger and unreasonable demands have been a problems for many years, but the applicant seems unaware of the distress he causes others.

9.      The two medical specialists were suitably qualified, and gave objective and helpful evidence; but I prefer the opinions and evidence of Professor Goldney in any areas of dispute in the evidence.

10.     Dr Davis reported to the applicant’s solicitors on 18 February 2003 [Exhibit A2], in relation to specific questions, as follows:

1.        What is the accepted medical scientific opinion in relation [to] the aetiology of schizophrenia?

The question of the aetiology of schizophrenia is as complex as ever.  Detailed knowledge is still lacking, but the schizophrenia syndrome probably represents more than one aetiological and disease process.  The preponderance of scientific evidence is consistent with the hypothesis that schizophrenia is a neuro-developmental disorder, with the cause lying in the failure of the human brain to develop normally.  Putative factors at play which cause this problem are:-

·     faulty expression of genes;

·     viral-immunological factors.

How these factors precisely contribute to the neuro-developmental problem of schizophrenia and why there is a delay in onset of symptoms is not clear, but altered brain function in schizophrenia is believed to result from disturbances in cell architecture, biochemistry and neural networks.

2.        If there is a chemical change which occurs, is that likely to continue over time and cause impairment of function of the brain?

With regard to the neuro chemistry of schizophrenia, the dopamine hypothesis remains the predominant theory.  However, other neuro transmitter systems, particularly glutamate, and possibly other neuro peptides, are also thought to be important in the patho-physiological process.  Research from post-mortem studies and sophisticated imaging techniques has not yet revealed how these neuro chemical systems interact.  It is believed that disturbances in these neuro transmitter systems are associated with altered brain function which causes symptoms of schizophrenia.  These changes appear to be progressive over time.

3.        How is any such chemical change and/or impairment of function of the brain or its related structures affected by medication which is prescribed?

It is well established that the older “typical” anti-psychotic drugs block brain dopamine receptors and it is this which is attributed to the beneficial effects of medication.  Newer “atypical” anti-psychotic drugs probably work on multiple levels of neuronal function.  Regardless of the mechanism of action the effect of anti-psychotic medication on brain receptor and neural transmission function is responsible for relieving the positive symptoms such as delusions and hallucinations.  When medication is not given, it is reasonable to assume that the underlying disturbance in neurophysiological function in the brain continues unabated.

4.        Is the situation one which might be compared with, say diabetes which may be causally related to the workplace and which may cause successive injuries such as, for instance, partial amputations, blindness or other medical conditions?

The ideal treatment for schizophrenia is a combination of medication and psychosocial support.  It is obvious to conclude that medication has an important role in correcting the underlying neurophysiological disturbances and that psychosocial treatments address the handicaps which flow from the underlying impairment.  The natural course of the schizophrenic syndrome varies greatly with a relatively poor outcome in 50% of cases.  In most cases it would seem that there is continuous impairment at the cellular level, and disability and handicap which fluctuates and progresses over time, e.g. inability to work, withdrawal from social relationships, diminished capacity to enjoy activities and environment.  Even when anti-psychotic medication is working on brain receptor function, symptoms and disabilities typically fluctuate over time, with a greater level of handicap also emerging over time.

11.     Dr Davis said in evidence that he considered that the natural history of the condition was for it to deteriorate steadily over time, as the chemical processes evolved, and he emphasised that it was an evolving process which is constantly changing.  If it is accepted that the manifest symptoms and signs which are treated in the clinic are linked to some underlying process, then the deterioration is a natural progression of the illness, and it can be assumed a continuing evolution and continuing perturbation of that chemical system.  He said that it is not just one phenomenon that starts up the onset of the illness; there is a chemical cascade, a continuing evolving chemical disturbance.  Dr Davis said in evidence that there is a global process, a neuro- physiological process called schizophrenia, which occurred, and it is still the case now, but it is a very complex thing, and it is not simply one pathological process but is continuing and evolving over time.  Dr Davis concluded that there has been some change over time – a patho-physiological change.

12.     Professor Goldney reported, on 3 December 2002, that the patho-physiological change acting at that time, would be the same patho-physiological change that would have been acting upon the applicant’s nervous system in December 1988.  He stated:

“…  It has probably worsened, in keeping with our understanding of the natural history of a gradual deterioration in some schizophrenic illnesses, as has occurred with Mr. Maida.  However, the basic patho-physiological change is the same.  That is, there has not been a new patho-physiological entity which has impacted upon him.

…”  [Exhibit R1] 

13.     Professor Goldney said in evidence that the initial cause is the reason why there has been the inevitable progression of the symptoms.  One does not need to invoke some new patho-physiological entity which has contributed to the symptoms – it is just simply part of an ongoing inexorable process.  The basis, or initial patho-physiological change is the same.  He said that there will be other changes in terms of the neuro-receptors over time; for example, as soon as treatment is introduced, the neuro- receptors will be altered, and sometimes after the drug has been used for 2-3 years, the person may no longer be responsive to that drug.  He said that one assumes that there has been other patho-physiological change to influence the person’s response to the drug, but it is still basically the same process that is grinding on inexorably.  It is a change brought on by the process of the disease.  A person’s symptoms will fluctuate over time; but this is still a schizophrenic process, the same illness as he had in December 1988, and it is the same sort of process grinding inexorably on.  Sometimes there are lapses and remissions, and sometimes the condition continues on without remission.  There is no new injury, it is the same condition, and it is a deteriorating condition.  I accept Professor Goldney’s evidence.

14.     I have examined the whole of the evidence carefully and in detail, and I have taken into account the parties’ submissions.  I am satisfied on the evidence that the malfunction, or the patho-physiological condition underpinning the applicant’s symptomatology, and his impairment, is the same today as that which existed as at 1 December 1988.  The applicant is not entitled therefore to payment of compensation pursuant to ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988..

15.     For these Reasons the Tribunal affirms the decision under review.

16.     The Learned Judge set aside the earlier Tribunal’s order that the respondent pay the applicant’s costs of the application, and remitted the issue to the Tribunal for determination according to law.  Mr Wallace submitted at the Hearing that if the decision was more favourable to the applicant, then the question of costs could be dealt with in later submissions.  The question of the costs of this proceeding does not arise now; but in relation to the issue of the costs of the earlier proceedings, the subject of the Federal Court appeal, there will be liberty to the parties to apply.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .......................................................................................
  Associate

Date of Hearing  5 August 2003
Date of Decision  8 March 2004
Counsel for the Applicant         Mr G Britton
Solicitor for the Applicant          Ryan Carlisle Thomas
Counsel for the Respondent     Mr J Wallace
Solicitor for the Respondent     Sparke Helmore