Merrick and Comcare
[2004] AATA 10
•9 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 10
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/828
GENERAL ADMINISTRATIVE DIVISION ) Re LYNTON MERRICK Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date9 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .......(Sgd) O Rinaudo......
Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – incapacity payments - capacity to earn – applicant not prevented from working in suitable employment due to his work related injuries – inability to work caused by depression and knee conditions – no connection established between depression and knee conditions and applicant’s employment with the Commonwealth – decision affirmed
Safety Rehabilitation and Compensation Act 1988
Casarotto v Australian Postal Commission (1989) 86 ALR 399
REASONS FOR DECISION
9 January 2004 Mr O Rinaudo, Member 1. Mr Merrick seeks review of a decision of the Department of Veterans’ Affairs, dated 12 December 2001, to close his rehabilitation case upon a determination that he had a demonstrated ability to earn, in the area of motel, hotel or caravan park management, a rate of $403.65 per week from 4 January 2001.
2. This decision was reconsidered by the respondent and affirmed on 24 April 2001. The applicant has sought review of that decision in this Tribunal.
3. The Tribunal heard Mr Merrick’s application for review on 25 August 2003. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) (Exhibit 1), and a report by Dr Cameron, dated 15 April 2003 (Exhibit 2). The Tribunal heard oral evidence at the hearing from the applicant and Dr Boyce.
History
4. Mr Merrick enlisted in the Royal Australian Airforce on 28 February 1962. He was discharged holding the rank of lance corporal on 27 February 1968.
5. On 1 March 1965, Mr Merrick was involved in a motor vehicle accident which he described as follows (see statement T8, p53):
“In 1965 I was involved in a serious vehicle accident whilst on duty in the RAAF at Sale, Victoria.
During a meal break on 1st March 1965, I was informed I had to work at a function in the Sergeant’s mess. I requested permission from my warrant officer (Mr Keily dec’d) to go off base to collect my uniform from the drycleaners which I required to wear for the function.
On the way into Sale along Aerodrome Road a car on my left failed to stop at a stop sign. I was unable to avoid the collision.
Injuries received were numerous, mainly facial fractures and left leg. My jaws were wired and I have suffered immense discomfort and permanent pain of the jaws as my mouth can only open half way. I complained often whilst in the force only to be told ‘it will get better’. There has been no change. Constant pain in the back of my eyes create poor visibility. Although glasses are not worn. Permanently, the pain cannot be remedied.”
6. Mr Merrick also complained of lower leg problems including varicose veins and poor blood circulation causing ulcerated legs caused by having to stand on vinyl tiles on the bar floor.
7. Mr Merrick continued in employment as a steward in the RAAF for some three years after the accident and before discharge. After discharge Mr Merrick continued a career in hospitality being involved in numerous licensed premises both as licensee and on occasions owner by himself and with partners both personal and business partners. Mr Merrick says:
“I chose to pursue a career in the hospitality industry following my term as steward in the RAAF. Due to the damage caused by the stripping of the veins which I believe was totally unnecessary in the first instance along with the permanent pain in my facial area has put an end to any future I may have had in the hospitality industry.
The stress related to my inability to be as mobile as I once was, has led to a heart turn which placed me in intensive care. Blood pressure tablets are now a necessity.
The constant throbbing in my legs as well as the discomfort of having to wear the stockings under jeans in high 30degree temperatures has been unbearable for many years.”
8. Mr Merrick has the following accepted conditions:
§ Infra-orbital neuralgia;
§ Post concussion syndrome and memory impairment;
§ Early osteoarthritis of the tempro-mandibular joints;
§ Broken right upper central incisor; and
§ Loss of one upper canine tooth.
Legislation
9. The legislation relevant to this application is contained in the Safety Rehabilitation and Compensation Act 1988. In particular, sections 4, 16 and 19 are relevant to this application. The relevant parts of those sections are set out as follows:
“4(1) In this Act, unless the contrary intention appears: …
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment-employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence-whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case-any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv);
…
19(3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
(Adjustment percentage x NWE) - AE
where:
adjustment percentage is a percentage equal to:
(a) if the employee is not employed during that week—75%;
…
19(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self-employment)-the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition-the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment-the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee-whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
Discussion
Knees
10. Dr William Laister, orthopaedic surgeon, examined the applicant on 15 June 1999. He concluded:
“I concluded this patient sustained superficial lacerations to the anterior aspect of his left knee joint in a motor vehicle accident in question in 1965. The right knee was not injured in that accident. The minor symptoms in his knee joints are arising from age changes only, the right knee being substantially involved in trauma unconnected with his Airforce service.”
11. In response to questions asked of him, Dr Laister said that the motor vehicle accident had definitely not been the principal cause of Mr Merrick’s left knee condition. He did not consider that there were any accidents and/or Military employment factors that contributed to Mr Merrick’s left knee condition.
12. In respect of the right knee Dr Laister noted that:
“He sustained no injury to his right knee in the accident in question. Following discharge from the Airforce, he was involved in a horse riding accident, which resulted in a fracture of the right lateral tibial condyle. He suffers from no ill effects in his right knee as a result of the motor vehicle accident in 1965.”
13. This is the only medical evidence in respect of the applicant’s knee complaints. The Tribunal is satisfied that the following decision of the respondent is correct:
“…the Department of Defence is not liable to pay compensation for a ‘left and right knee conditions’ [because]…there is no evidence that your claimed current knee conditions relate to injuries sustained in the motor vehicle accident on Monday, 1 March 1965 or from any other employment related factors.” (see T21, p88)
Head Injuries as a Result of 1965 Accident
14. On 18 June 1999, Dr Geoffrey Boyce, consultant neurologist, reported that he had seen the applicant as requested and provided the following opinion:
“It is my opinion that this man had a head injury in 1965. As a consequence he has neuralgia of the left infra orbital nerve, he may have some slight memory impairment, however he seems to have been able to exist in an open commercial environment (with a moderate degree of success), as to whether he should be seen by a neuropsychologist would be debatable, as well in excess of thirty years has transpired since the time of the injury.”
15. In response to the question “Having regard to the accident related effects of the condition, can Mr Merrick perform the duties of his pre injury employment?”, Dr Boyce reported “Mr Merrick did continue in his pre-injury employment for a period of three years in the Airforce and for about thirty years owning different hotels. It is difficult to believe therefore that he can’t continue in this manner”.
16. Doctor Cameron says in his report says:
“I believe he is physically fit to undertake his previous job in hospitality industry however while his depression persists, it is unlikely he will ever return to employment.”
And further:
“I believe Mr Merrick could physically work 40 hours per week to normal retirement age. At this time, however, I do not believe he is able to work because of apparent depression.”
And finally:
“I believe Mr Merrick should improve with appropriate psychiatric therapy and medication. This would be better directed to a psychiatrist.
I do not believe there exists any evidence that this man has suffered any organic brain injury as a consequence of the injuries sustained in 1965. It appears he successfully returned to work after that injury. It is only in the latter years that he has developed memory disturbance and an acute depressive disturbance. This is unrelated to any direct or indirect effect of that injury.
His dental injuries would be better addressed to an appropriate specialist.
I believe his memory Impairment is related purely to his depression and not to any brain injury suffered in the accident in 1965.”
17. Dr Rossato, neurosurgeon, says, in his report of 27 March 2001, that:
“With all due respects I would be absolutely amazed if appropriate psychological testing came anywhere near suggesting that Mr Merrick would continue to demonstrate an ability to earn in the areas of motel management, motel management and caravan park management. This is the only element of Dr Boyce's report I would disagree with.”
18. However, in his report of 20 December 2001, in response to this question from the respondent, “Having regard to the employment related effects of the condition, can the employee perform the duties of his pre injury employment”, the doctor answered, “From a neurological point of view – yes”.
19. Mr Merrick gave evidence of his long work history in the hospitality industry. His involvement in one form or another in the hospitality industry spans some thirty years. From his evidence it was clear that Mr Merrick had had fluctuating fortunes during his working life.
20. Dr Donna Kippax, consultant psychiatrist reported on 11 August 2001 (see T74, p226). At pages two of her report Dr Kippax notes that:
“…36 years have passed since the injuries occurred upon which Mr Merrick is claiming compensation. These years will have modified the clinical picture so substantially, and have given rise to so much opportunity for unrelated health problems that nothing in my Report can be stated with great certainty. I can only speak of possibilities and probabilities.”
Dr Kippax on page 5 of her report noted:
“What must be considered is Mr Merrick’s alcohol intake during these decades, which he states amounted to as many as 10 scotches a night, plus other, non-spirituous, but alcoholic, drinks. When I questioned this more closely, he was oddly blasé about this, explaining to me that there’s no agreement as to what constitutes excessive drinking, and in his own opinion was quite normal. In factor there is world-wide agreement about these definitions, with anything over 4 standard drinks in 24 hours being in the category of ‘problem drinking’ for a male (WHO criteria).
A heavy, sustained level of drinking will bring about it’s own problems in terms of cognative and neurobehavioural symptoms, regardless of whether a pre-existing postconcussional disorder was present. It needs to be said that problematic drinking will exacerbate the latter.”
At page 8 of her report Dr Kippax notes that:
“Mr Merrick does suffer from psychiatric condition that impairs his capacity to undertake employment. This condition does impair his memory and concentration, as well as the stability of his mood, and various physiological components of normal functioning. This condition is potentially treatable, and as such, an improvement can be expected. I do not know if there are any underlying organic cognitive deficits, and this could only be established after his depression has resolved.
Currently Mr Merrick’s symptoms can be explained largely on the basis of an untreated major Depressive Episode. His GP has attempted to treat this condition with an appropriate antidepressant, which the claimant ceased ‘cold turkey’, after a period of time insufficient to achieve a clinical response.”
21. Mr Merrick was most upset that Dr Kippax should suggest that drinking was a major contributing factor to his present condition. He stated that he had undergone liver tests, which established that his liver function was within normal limits (see T76, p238 and following).
22. Currently Mr Merrick says that he is living in a Motel in Gladstone and paying $120.00 per week rent. He says that he answers the phone on occasions and has a mobile phone in his room. He said that the woman he lives with is not his partner any more.
23. Mr Merrick told the Tribunal that he did not have any money to obtain medical evidence or to pay for legal representation.
24. In any event it is worth noting the comments Hill J in Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 413, when discussing the issue of “onus of proof”:
“Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf Vulic v Capital territory Health Commission (1982) 5 ALD 35 at 38 per Morling J) and ultimately the tribunal, in considering the claim, can only act on evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant fro review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant’s case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant’s case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant.”
25. The preponderance of medical evidence supports the respondent’s contention that the applicant is capable of undertaking employment in the hospitality industry such as motel, hotel, and caravan park management with respect to his compensable condition at the rate of at least $403.65 per week.
26. Whilst the Tribunal notes that the medical evidence particularly of Dr Cameron confirms that the applicant is incapable of working because of his “apparent depression”, there is no evidence which establishes a causal connection between the injuries sustained by Mr Merrick in the 1965 accident and this depression.
27. It cannot be said therefore that the applicant’s incapacity for employment is caused by injuries sustained whilst in the employment of the respondent. Having failed to establish this threshold question, the Tribunal must affirm the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: (Sgd) S Oliver.
AssociateDate of Hearing 25 August 2003
Date of Decision 9 January 2004The Applicant appeared in person
Counsel for the Respondent Mr C J Clark
Solicitor for the Respondent Phillips Fox
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