Nicholson and Comcare (Compensation)

[2017] AATA 726

Nicholson and Comcare (Compensation) [2017] AATA 726 (24 May 2017)

Division:General Division

File Number(s):      2016/3584

Re:Robert Nicholson

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:24 May 2017

Place:Sydney

The decision under review is affirmed.

...............[sgd].........................................................

Senior Member A Poljak

CATCHWORDS

COMPENSATION – psychiatric condition – whether applicant suffers permanent impairment – whether percentage Whole Person Impairment creates entitlement to compensation for permanent impairment and non-economics loss – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 7, 14, 16, 19, 24, 27

SECONDARY MATERIALS

Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1 Table 5.1

REASONS FOR DECISION

Senior Member A Poljak

24 May 2017

BACKGROUND

1. Mr Nicholson (“the applicant”) commenced employment with Australian Customs (now Australian Customs and Border Protection) (“the employer”) in May 1981, as a Customs Officer, performing primarily administrative tasks. From January 1998 he commenced work at the Postal Operations Centre at Clyde, New South Wales.

2. On 4 December 2003, the applicant lodged a claim for Worker’s Compensation in respect of “major depression aggravated by work” which he attributed to “workplace conflict, changes in duties, fatigue and work pressure”.

3. In a determination dated 30 April 2004, Comcare (“the respondent”) declined liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of the claimed “major depressive disorder, recurrent episode”.

4. By reconsideration dated 24 August 2004, the respondent set aside its earlier decision and accepted liability under s 14 of the SRC Act in respect of an “aggravation of major depressive disorder, recurrent episode” with the date of injury determined by reference to s 7(4) of the SRC Act to be 1 December 2003 (“the injury”).

5. The applicant accepted a voluntary redundancy from his employer, which took effect from 28 June 2007, and has not participated in paid employment since this date. The respondent continued to pay compensation for incapacity and medical treatment following the applicant’s redundancy up until 8 May 2015.

6. On 31 March 2016, the applicant made an application to the respondent for compensation for permanent impairment and non-economic loss.

7. On 12 May 2016, the respondent determined that the applicant was not entitled to compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act.

8. On 17 June 2016, a delegated review officer of the respondent affirmed the determination of 12 May 2016 (“the reviewable decision”). These proceedings concern the review of this decision.

9. At hearing, the respondent conceded that the applicant continues to suffer from incapacity and impairment as a result of the injury and has an ongoing entitlement to medical treatment or incapacity payments under ss 16 and 19 respectively of the SRC Act.

10. The respondent accepts that the medical evidence supports a finding that the applicant suffers from a psychiatric ailment and that he suffers permanent impairment as a result of this condition, however contends that any such impairment is constitutional in origin, and unrelated to any injury suffered by the applicant in the course of his employment with the employer, so that the applicant has no entitlement to compensation pursuant to ss 24 or 27 of the SRC Act.

11. The issues for determination in these proceedings are:

    (a)whether the applicant suffers permanent impairment as a result of the injury, and if so:

    (i)whether the percentage whole person impairment assessed in accordance with the Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1 (“Comcare Guide”) in respect of injury creates entitlement to compensation pursuant to ss 24 and 27 of the SRC Act, and if so;

    (ii)to what extent.

    RELEVANT LEGISLATIVE PROVISIONS

12. Payment of compensation for injuries resulting in permanent impairment is governed by s 24 of the SRC Act. The degree of permanent impairment must be determined in accordance with the provisions of the Comcare Guide (s 24(5)). The degree of permanent impairment must be expressed as a percentage (s 24(6)). The amount of compensation payable is calculated by the application of that percentage to an amount specified by s 24(9).

13. Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under s 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment pursuant to section 27(1) of the SRC Act.

14. Section 28 of the SRC Act authorises the preparation of the Comcare Guide setting out criteria for determining the degree of permanent impairment resulting from an injury, and for that assessment to be expressed as a percentage. The Guide states a number of principles to be used by decision-makers (including the AAT) when assessing the degree of permanent impairment arising from particular injuries, diseases or ailments. One technique used by the Guide is to give percentages of “whole person impairment” by applying particular descriptions of loss of function of body parts or bodily processes.

15. Table 5.1 of the Comcare Guide relevantly provides the following WPI percentage criteria for psychiatric conditions:

% WPI

Description of level of impairment

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 of daily living patterns

·      marked disturbances in thinking

·      definite disturbance in behaviour.

1. The Notes to Table 5.1 in the Comcare Guide provide:

   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.

   CONSIDERATION

2. On 9 November 2015, the applicant was examined by Associate Professor Michael Robertson, consultant psychiatrist, who noted in his report dated 11 November 2015, the following:

   Two independent medical examinations performed by both Dr Rose and subsequently Dr Spence indicated that Mr Nicholson’s depressive illness was likely constitutional and in large measure attributable to co-morbid medical problems including obstructive sleep apnoea and more recently diabetes in combination with his obsessional pre-morbid personality. They both argued that no credible nexus could be argued between the nature and conditions of employment with the Australian Customs Service and Mr Nicholson’s current presentation.

   Mr Nicholson by contrast argues that prior to his employment with Customs, his depressive symptoms had been low grade persistent but compatible with paid employment and an appropriate level of psychosocial function.

3. In a supplementary report dated 13 September 2016, Associate Professor Michael Robertson considers the reported history and material provided to him in regards to the applicant suffering a permanent impairment prior to the injury and opines at [4]:

   Mr Nicholson presents with what appears to be a pre-existing psychiatric problem though his history at interview indicates that he was not significantly impaired. He had argued that he had low grade persistent symptoms that were compatible with paid employment. This would likely conform to the qualitative descriptions of “reactions to stresses of daily living with minor loss of personal efficacy, lack of conscience directed behaviour and marked distortions of thinking” which equals 5% WPI according to the Comcare Guides.

4. In conclusion, Associate Professor Michael Robertson states at [6] of his supplementary report:

   In essence, the “reasonable middle ground” is that Mr Nicholson presented with 15% WPI based on his clinical presentation and that 5% was likely the level of WPI at the time he commenced duties with Customs.

5. Comparatively, Dr Stephen Allnutt, senior consultant forensic psychiatrist, opines in his report dated 22 December 2015, the following:

   Based on information provided to me he manifests impairment in perform activities of daily living such as social interaction, sleep and self-care. He manifests a marked disturbance in thinking, and definite disturbances in behaviour with reaction to stressors of daily living causing modification to daily living patterns consistent with a whole person impairment of 25% according to the ComCare Guide.

6. At hearing, Dr Allnutt opined that the applicant’s predisposed nature was obsessive-compulsive and said that the applicant was more vulnerable to stresses than the average person. He said that work factors were still in play in the applicant’s mind (psychologically) and that people with obsessive compulsive traits were prone to ruminating.

7. In regards to permanent impairment, Dr Allnutt advised at hearing that his initial assessment of 25% WPI was an “overestimate”. He said that it was more about 15 to 20% and agreed with Dr Robertson that 5% could be deducted for the applicant’s predisposed condition. Dr Allnutt said that the key issue was whether the applicant required “supervision and direction”. He said that he believed the applicant required supervision because it was his preference to go out with a support person and that the applicant needed encouragement to go out. In regards to direction, Dr Allnutt said that he took this to mean that the applicant required professional input.

8. At hearing, Associate Professor Robertson agreed with Dr Allnutt that the applicant was still troubled by work issues which had exacerbated his symptoms. He said that the applicant’s condition was arguably permanent and that he “didn’t see a lot of change ahead”.

9. In regards to permanent impairment, Associate Professor Robertson confirmed at hearing that he thought the range of 10 to 15% WPI was not unreasonable. In coming to this conclusion he relied on factors such as external supervision and direction of daily activities. He raised some concerns about the applicant’s history of neglect to his health but did not think that it was to the level requiring supervision from a nurse or health care provider.

10. The applicant provided a statement dated 28 September 2015 and a supplementary statement dated 23 February 2017, both of which I have read and considered. The applicant also gave oral evidence at hearing.

11. In his supplementary statement at paragraphs [13]-[15], [17] and [19], the applicant says that he often goes to his local shopping centre and has a coffee and a meat pie or sausage roll. He monitors his diet by eating a lot of fruit and salad and has reduced the amount of sugar in his diet. He says that he now gets 9 to 10 hours sleep daily. At night he tends to read, and go on Facebook and talk to people in England.

12. At hearing the applicant gave evidence that he lives alone; goes shopping; caters for himself; goes out fairly frequently; attends Bible studies every fortnight; socialises over the Internet; sings and plays the guitar; visits friends; goes to church; builds models and uses a home gym; all without assistance.

13. Based on this evidence, I am satisfied that the applicant is capable of performing activities of daily living without supervision or assistance, however I am not satisfied that the applicant has a need for direction from a suitably qualified person in activities of daily living.

14. Having regard to the requirements of Table 5.1 of the Comcare Guide, I find that the applicant has an impairment which is permanent and which is 10% WPI. I agree with Associate Professor Robertson and Dr Allnutt that 5% should be deducted for the applicant’s predisposed condition.

15. Accordingly the applicant’s WPI is less than 10%. He is not entitled to payment of additional lump sum impairment compensation and non-economic loss compensation under ss 24 and 27 of the SRC Act.

    DECISION

16. The decision under review is affirmed.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak.

...............[sgd].........................................................

Associate

Dated: 24 May 2017

Date(s) of hearing:	27 & 28 February 2017
Counsel for the Applicant:	J Mrsic
Solicitors for the Applicant:	S Dougall, Carroll & O'Dea Lawyers
Counsel for the Respondent:	M Snell
Solicitors for the Respondent:	P Snell, Lehmann Snell Lawyers