Patterson and Comcare
[2005] AATA 1098
•4 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1098
ADMINISTRATIVE APPEALS TRIBUNAL ) N2004/1093; N2004/1378;
) N2005/1323
GENERAL ADMINISTRATIVE DIVISION ) Re STEVEN PATTERSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal: Senior Member M D Allen
Dr J D Campbell, MemberDate:4 November 2005
Place:Sydney
Decision: 1. In matter N2004/1093 the decision under review is AFFIRMED.
2. In matter N2004/1378 the decision under review is SET ASIDE and this matter remitted to the Respondent with the direction that further investigations be undertaken to ascertain the Applicant’s ability to undertake employment, and the amount per week that he would be able to earn in a suitable employment.
3. In matter N2005/1323 the decision under review is AFFIRMED.
4. This matter is adjourned to a date to be fixed in order that the parties may make submissions as to costs.
(Sgd) M D Allen
..............................................
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION - Claim for increase in permanent Impairment from Post Q Fever Syndrome together with claim for incapacity to work and medical expenses – whether there has been a change in the underlying patho-physiological condition as opposed to an exacerbation of the condition – reviewable decisions in relation to permanent impairment and medical expenses affirmed – decision in relation to incapacity set aside and remitted to the Respondent to ascertain the Applicant’s ability to undertake employment.
Safety, Rehabilitation and Compensation Act 1988 sections 14, 16, 19 and 24
Comcare v Maida (2002) 36 AAR 69
REASONS FOR DECISION
4 November 2005 Senior Member M D Allen
Dr J D Campbell, Member1. These proceedings concerned three applications for review lodged by the Applicant.
2. Matter No N2004/1093 sought review of a reviewable decision made the 29th day of June 2004 affirming a prior determination that the Applicant was not suffering any permanent impairment from the condition described as “Post Q Fever Syndrome”.
3. Matter No N2004/1378 sought review of a reviewable decision made the 19th day of October 2004 affirming a prior determination that the Applicant was not entitled to payment for incapacity for work pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”).
4. Matter No N2005/1323 sought review of a reviewable decision made the 11th day of October 2005 affirming a prior determination that the Applicant was not entitled to reimbursement of medical expenses being payments for psychological counselling, pursuant to s 16 of the SRC Act.
5. At the outset we have some difficulty in ascertaining the effect of the decision and reviewable decision in matter No N2004/1093. Those decisions purport to determine that the Applicant’s degree of permanent impairment from the claimed Post Q Fever Syndrome is 0% and hence the Applicant is not entitled to any payment for permanent impairment pursuant to ss 24(7) of the SRC Act.
6. As pointed out in document T76 in the documents prepared for the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, the Applicant was on 7 May 1998, paid the sum of $46,669.11 on the basis that he suffered a 25% whole person impairment due to Post Q Fever Syndrome.
7. By letter dated 22 July 2002, the Applicant’s then solicitors applied for an increase in permanent impairment payments on the basis that his degree of permanent impairment had increased to 40%. This claim was made following a report by Professor Andrew Lloyd, Professor of Infectious Diseases at the University of New South Wales and Prince of Wales Hospital which report was dated 25 February 2002.
8. In passing, we point out that according to Professor Lloyd’s evidence the correct nomenclature for the Applicant’s incapacity is that of Chronic Fatigue Syndrome following Q Fever.
9. Even if Professor Lloyd’s estimation of a 15% worsening in the Applicant’s degree of permanent impairment from Chronic Fatigue Syndrome following Q Fever were to be accepted, that does not mean that the Applicant is entitled to any increase in payments for permanent impairment.
10. In his report of 25 February 2002, Professor Lloyd said:
“Following my assessment today and review of the symptoms and functional status over this last couple of years, I do believe that Mr Patterson has more substantive impairment than the 25% whole of body impairment previously designated.”
Nowhere in his report does Professor Lloyd state that there has been any change in the underlying patho-physiological condition but rather, there has been an exacerbation of the symptoms constituting the incapacity. As was pointed out in Comcare v Maida (2002) 36 AAR 69 at 79, this is insufficient to support a further payment for permanent incapacity. To obtain a further payment an Applicant must show that there has been a qualitative change in the impairment, not simply a progression of the disease process.
11. When giving evidence in these proceedings, Professor Lloyd stated that he referred to Table 13.1 of the Comcare Guide to permanent impairment but had made an arbitrary assessment.
12. This evidence of Professor Lloyd is corroborated by his report of 20 February 2005 to the Applicant’s solicitors. In that report he states inter alia:
“In my assessment neither guide is particularly relevant to conditions in which the cardinal manifestations are purely subjective, such as chronic fatigue syndrome… Accordingly, the assessment and documentation of disability in CFS presents a (sic) intrinsic difficulty with the Guide, as ‘anatomical, physiological, or psychological abnormalities’ that can be demonstrated by objective testing are absent by definition.
…
My assessment of the level of functional impairment in Mr Patterson therefore simply evaluated his functional status prior to the illness and after its onset, and in comparison with a normal healthy person. My assessment considered the effects of the illness on personal efficiency in the activities of daily living, including workplace participation. Given that this efficiency is substantially reduced the estimate of 40% is reasonable.
As to the election made by Mr Patterson to have his claim assessed under the Guide at the invitation of Comcare was valid – I would assume that he was unaware of these vagaries (as outlined above) and therefore that his decision was not well-informed or valid.”
13. Professor Lloyd also stated that in making his earlier assessment of 25% incapacity he did not have regard to any of the Tables in the Comcare Guide.
14. We are left therefore with the situation that the assessments of incapacity by Professor Lloyd are not in accordance with the Comcare Guide to permanent impairment – a Guide which this Tribunal must apply and is binding upon us, see section 28 of the SRC Act.
15. The only other evidence as to degree of incapacity is the reports of Dr Stevenson who opines that there is no pathology or disability. Given the state of the evidence before us, the decision under review in matter No N2004/1093 is affirmed.
16. So far as the claim for medical expenses (being the fees paid to psychological counsellor Ms Railton) are concerned, the starting point is ss 16(1) of the SRC Act which reads inter alia:
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
17. “Medical treatment” is defined in ss 4(1) of the SRC Act as:
“medical treatment means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c) dental treatment…
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of the report in respect of such an examination, test or analysis; or
(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g) treatment and maintenance as a patient at a hospital, or
(h) nursing care, and the provision of a medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i) any other form of treatment that is prescribed for the purposes of this definition.”
18. In this matter, although Professor Lloyd stated that psychological counselling would be beneficial to the Applicant, at no time has that treatment been obtained at the direction of a medical practitioner.
19. The Applicant’s evidence is that he first consulted Ms Railton at the time of separation from his wife which was in 1995. He was not referred by any medical practitioner but had seen an advertisement for counsellors in a local paper. He conceded that his chronic fatigue syndrome was not the initial reason for the consultation, but he had simply continued the counselling sessions.
20. As the consultations with the psychologist were not at the instigation of any medical practitioner, they cannot qualify as medical treatment and thus are not compensable under s 16 of the SRC Act. In any event, there is no evidence as to their effectiveness or necessity except that Professor Lloyd regards them as a good thing. For these reasons therefore, the decision in matter No N2005/1323 is affirmed.
21. The Applicant ceased work in February 1999 when he again began to suffer symptoms of chronic fatigue attributable to Q Fever. On 7 June 1999, Professor Lloyd gave the Applicant a certificate stating that he would be unfit to resume his duties for three months. At that time the Applicant was working for a private employer the meat inspection services, formerly conducted by the Commonwealth having been privatized. Upon presentation of his medical certificate requiring 3 months sick leave, the Applicant’s employment was terminated. He has not worked since.
22. There is no dispute that the Applicant did suffer a bout of Q Fever in February 1978 whilst employed as a meat inspector by the Commonwealth Department of Primary Industry. A later bout of Q Fever was diagnosed on clinical grounds, without serology, in November 1978.
23. We can state at the outset that having regard to their levels of expertise and in particular to Professor Lloyd’s international reputation in the field of infectious diseases, we find in accordance with the opinions of Professors Lloyd and Marmion and contrary to the opinion of Dr Stevenson, that there is such a disease entity as Chronic Fatigue Syndrome Post Q Fever.
24. In addition, we are satisfied that at times the Applicant has had that syndrome. The question in these proceedings is the degree to which he is incapacitated for work as a result of the syndrome.
25. In evidence, Professor Lloyd conceded that in coming to an opinion as to the Applicant’s degree of disability, he was entirely dependent upon the Applicant’s reporting.
26. The Applicant in evidence, stated that after incidents of suspected Q Fever in 1978 and 1985 he had recovered. In April 1996 Professor Lloyd took a history that between 1978 and 1994 the Applicant had three acute illnesses which resolved completely.
27. In that same report, Professor Lloyd noted that post an episode of gastroenteritis in 1994:
“Fatigue has been a prominent feature so he finds, for instance, currently that 10 minutes of mowing the lawn precipitates profound fatigue, from which recovery occurs only over 4 or 5 hours…”
28. In a non economic loss questionnaire received on the 5th May 1998 the Applicant stated inter alia:
“I am constantly tired and lethargic with no energy at all and have to force myself to do the simple chores of life such as preparing a meal. Also after working I come home and fall asleep in the lounge as my body just shuts down.”
He also stated:
“Participation in sport is vertially (sic) nil as I find I have neither the energy or concentration to be involved in any sport at a competitive level.”
29. A later non-economic loss questionnaire received 11 August 2003 by the Respondent has the Applicant stating:
“After simple everyday chores such as housework or mowing lawns I find I have to rest halfway through. I try to walk everyday for exercise but again when returning home I often fall asleep.”
And the Applicant also said:
“Being unable to concentrate for long periods of time has changed my social life and activities dramatically. I get tired and angry more easily now.”
30. On 7 June 1999 Professor Lloyd in a report to the Respondent, recommended that the Respondent appoint a Rehabilitation Case Manager with a view to reassessing and retraining the Applicant in order to return him to work. Unfortunately this was never done, the Department of Primary Industry washing its hands of the Applicant on the basis that at the time he ceased work he was no longer employed by the Commonwealth.
31. Exhibit R7 is a report by Professor Lloyd to the Applicant’s disability insurer dated 1 November 1999. In that report Professor Lloyd refers to the Applicant undertaking regular but gentle physical activity including regular walks and a limited amount of sporting activity in the form of golf.
32. On 30 May 2005 Professor Lloyd reported:
“He is able to manage relatively short periods of physical activity of perhaps 30 minutes duration”.
33. The evidence before us demonstrates that Professor Lloyd’s estimation of the Applicant’s abilities is understated. As pointed out above, Professor Lloyd stated he was dependent upon the Applicant’s report.
34. Professor Lloyd in evidence stated that the Applicant told him he had never had full health since the initial disease.
35. This history conflicts with the Applicant’s evidence that he had completely recovered between episodes (of disease) and can be contrasted with the history taken by Psychiatrist Dr Robbie whose report is summarised in Dr Stevenson’s report of 6 February 2004 as:
“In the 1980-90s Mr Patterson had a full-time onerous job, did weekend overtime, married twice, had a golf handicap in single figures, and drove up to four hours for a game of cricket. His wives wanted him to play less sport and stay home more at night.”
(The reference to wives is incorrect; the first relationship was de facto).
36. Exhibit R5 consists of three video cassettes showing activities undertaken by the Applicant in March 2005, whereas Exhibit R6 is a surveillance report detailing activities carried out by the Applicant as observed by investigators. These reveal that the Applicant on Saturday 12 March 2005 played 36 holes of golf and then socialised in the clubhouse for some 3 ¼ hours. On observing him in the club house, he appeared far from fatigued but was talking to companions in an animated fashion and drinking what appeared to be beer.
37. On Monday 14 March he was observed mowing a lawn, trimming edges and watering for a period of 1 hour and 20 minutes. On Wednesday 16 March he again played golf and socialised at the clubhouse. These activities are quite inconsistent with the history of fatigue following minimal activity given to Professor Lloyd and the Applicant’s own statement quoted above.
38. Cross-examined, the Applicant admitted that over the years he had been quite active. His golf handicap was between 10 and 11 and he was rated in the top of A grade at his club. He had undertaken a trip in March 2003 to Melbourne in order to play golf and had played four courses in four days. He also has a boat and has used it to go fishing. In August 2001 he went to Cairns for a fishing trip.
39. We are satisfied that the history of the Applicant’s abilities to undertake activity relied upon by Professor Lloyd is wrong and that the Applicant has exaggerated his incapacity. Even so, Professor Lloyd estimated that the Applicant could undertake during a week 15 to 20 hours of work in a sedentary capacity.
40. Given the Applicant’s ability to play 36 holes of golf in a day and then socialise afterwards, his observed gardening activities, plus history of trips away either to play golf or fish, we reject Professor’s Lloyd’s limitation of “sedentary capacity”.
41. Dr Stevenson believes that the Applicant is fit for the employment he was formerly undertaking. We have reservations regarding Dr Stevenson’s opinion as he clearly does not accept the existence of a Chronic Fatigue Syndrome following Q Fever, and we believe this attitude to have coloured his opinion as to the Applicant’s abilities.
42. Quite clearly the Applicant has a present ability to undertake employment but to what extent has never been assessed by an occupational physician or a rehabilitation provider. In order to make the best or preferable decision reports should be obtained from such professionals.
43. At present, the Applicant has in his favour a reviewable decision dated 23 June 1997 in which liability is accepted for what is described as “a Symptomatic Episode of Underlying Post Q Fever Syndrome”.
44. In these circumstances therefore, the reviewable decision of 19 October 2004 being matter No N2004/1378 before this Tribunal is set aside and the matter remitted to the Respondent with the direction that further investigations be undertaken to ascertain the Applicant’s ability to undertake employment, and the amount per week that he would be able to work in suitable employment.
45. As the Applicant has been partially successful in the matters before the Tribunal the question of the Applicant’s entitlement to costs, if any, is adjourned to a date to be fixed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr J D Campbell, Member
Signed: E.Pope .....................................................................................
AssociateDate/s of Hearing 17 & 18 October 2005
Date of Decision 4 November 2005
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Castagnet Lawyers
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Sparke Helmore
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