Pisaneschi and K&S Freighters Pty Ltd (Compensation)
[2023] AATA 2997
•19 September 2023
Pisaneschi and K&S Freighters Pty Ltd (Compensation) [2023] AATA 2997 (19 September 2023)
Division:GENERAL DIVISION
File Numbers: 2021/10046
Re:Moreno (Tim) Pisaneschi
APPLICANT
AndK&S Freighters Pty Ltd
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:19 September 2023
Place:Melbourne
The decision under review dated 9 December 2021 is set aside and, in substitution, it is decided that the Applicant is entitled to compensation for permanent impairment in respect of his psychiatric injury pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 and that the degree of permanent impairment is 10% and the degree of non-economic loss is 76%.
.......................[SGD]........................
Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION – permanent impairment – accepted claim for hernia injuries – accepted claim for psychiatric injury – multiple prior claims for permanent impairment – whether all reasonable rehabilitative treatment undertaken – applicant not likely to undertake rehabilitative treatment for substantial period – decision set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1998 (Cth)
Cases
Comcare v Filla [2002] FCAFC 61
Filla v Comcare [2001] FCA 964
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
19 September 2023
BACKGROUND
Mr Pisaneschi applied on 20 December 2021 for review of a decision of a delegate of the Respondent, dated 9 December 2021, which affirmed a determination dated 12 November 2021 denying his claim under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1998 (the Act) for compensation for permanent impairment and non-economic loss in respect of a psychological injury.
Both this decision and the original decision, dated 12 November 2021, maintain that, notwithstanding the assessment of a whole person permanent impairment of 10%, Mr Pisaneschi had not undertaken ‘all reasonable rehabilitative treatment for the impairment’. This language directly reflects one of the factors a decision-maker must consider pursuant to s 24(2)(c) of the Act, and this was considered a sufficient basis upon which to deny liability.
The matter has its origins in an incident in mid-2017 during Mr Pisaneschi’s duties as a truck driver, leading the Respondent to accept a claim for compensation in respect of bilateral groin pain. Mr Pisaneschi had surgery for bilateral hernia repair in 2013, and a further hernia procedure some years prior. His work history with the Respondent goes back to 2004.
Shortly prior to making the claim for groin pain, Mr Pisaneshi failed a workplace drug screening. This led the Applicant to be banned from the premises of a client business where he had been assigned, and he was stood down by the Respondent. Mr Pisaneschi was then issued with a warning, and transferred to alternative duties. He has not returned to driving, but continues to be employed by the Respondent.
Mr Pisaneschi made a series of claims for permanent impairment through 2020. The first three claims were based, respectively, on pain, scarring, and nerve damage in the context of the Applicant’s repaired bilateral hernias. Subsequently, in September 2020, Mr Pisaneschi lodged the claim for permanent impairment in respect of a psychological injury, which forms the basis of the current proceeding.
It was not until one year later, in September 2021, that the Applicant lodged a compensation claim for psychological injury said to arise from his accepted physical injury. By decision of the same date as that under review, 12 November 2021, the delegate determined that Mr Pisaneschi was entitled to compensation under s 14 and s 16 of the Act in respect of ‘adjustment disorder with mixed anxiety and depressed mood’.
Mr Pisaneschi lodged a Statement of Facts, Issues and Contentions (ASFIC), dated 13 February 2023, and Submissions in closing, dated 21 July 2023 (AS). The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T), and a Statement of Facts, Issues and Contentions (RSFIC), dated 22 March 2023. The parties also lodged a Joint Hearing Book (JHB). I note the T documents in this matter comprise all documents lodged in respect of Mr Pisaneschi’s several prior permanent impairment claims, and material was produced under summons from medical practitioners.
Evidence was given at the hearing by Mr Pisaneschi, and the consultant psychiatrists Associate Professor Ilan Rauchberger, and Dr Zeeva Cohen.
LEGISLATION
Pursuant to s 14 of the Act, compensation is payable in various forms for an injury suffered by an employee, including where an injury results in an ‘impairment’. It is not necessary here to elaborate on the provisions governing the definition of ‘injury’.
Under s 4 of the Act, ‘impairment’ means the loss of the use, damage or malfunction of any bodily system or function. ‘Permanent’ means ‘likely to continue indefinitely’.
As noted, s 24 provides that compensation is payable in the case of permanent impairment. When determining permanence, a decision maker is required to have regard to: the duration of impairment; the likelihood of improvement in the employee’s condition; whether the employee has undertaken all reasonable rehabilitative treatment; and, any other relevant matters (s 24(2)(a)-(d)).
This section goes on to provide that: the approved Guide is to be used when determining the degree of impairment; it is to be expressed as a percentage; and, compensation is not payable for permanent impairment of less than 10% (ss 24(5), (6) and (7)). The amount of compensation under s 24 shall be the same percentage of the maximum amount expressed in the Act (ss 24(4), (9)).
Where liability arises under s 24, the Act also provides in s 27 a formula for the payment of additional compensation for non-economic loss suffered as the result of the injury or impairment. This formula combines the assessed percentage of permanent impairment with a percentage degree of non-economic loss assessed under the Guide.
The approved Guide is the Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1. Table 5.1 in Chapter 5 – ‘Psychiatric Conditions’ of Division 1 sets out the relevant criteria for determining levels of impairment. A 10% level of impairment arises where an applicant is capable of performing activities of daily living without supervision or assistance, despite the presence of one or more of the following:
·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
The Guide to the Assessment of Non-Economic Loss is found in Division 2 of the Guide. Part B of the equation specified in s 27 of the Act is composed of scores allocated to a range of considerations going to pain and suffering, and loss of amenity.
ISSUES
The issues for determination in this matter are:
(a)whether Mr Pisaneschi suffers an impairment in respect of his injury that is permanent, taking into account the factors specified in the Act;
(b)if so, whether that impairment reaches the required threshold; and
(c)the Applicant’s entitlement to compensation for non-economic loss.
EVIDENCE
I summarise here pertinent aspects of Mr Pisaneschi’s written statement dated 13 February 2023 (JHB10):
(a)he suffers ‘severe, wide ranging physical problems’ as a result of his 2013 injury [3], and has had ongoing pain in the groin following the insertion of mesh in the subsequent surgery [9];
(b)he developed neuropathic pain, erectile dysfunction, and has had extensive treatment for pain relief, but is not presently under active treatment for his pain [10], [11], [18];
(c)symptoms from his injury affected his previously active lifestyle, his sense of self and his social life [12];
(d)he attended two psychologists, each on two occasions in 2018, and ‘both thought that [he] already had any coping mechanisms that they could teach [him], and that there was nothing further they could offer… by way of treatment’ [15]; and
(e)he has ‘no intention of obtaining any further treatment’ for either physical or mental pain as none of the further options offered can guarantee an improvement [21].
Mr Pisaneschi gave evidence that he had tried multiple pain relief treatments for his groin which had no effect, including physiotherapy and drug treatments. He understood the chances of success for surgical interventions raised with him were less than 30%, and stated that every pain specialist told him that ‘nothing can be done.’ Mr Pisaneschi also considered that failure in further physical treatments would worsen his mental health condition. He considered the impact of reduction in work, recreation and social life made him ‘half a human being’. Mr Pisaneschi stated he is no longer able to be intimate with his wife and his sleep is affected by pain and worry.
Mr Pisaneschi described feelings of lack of motivation and self worth, which intensified after being told by medical practitioners that they cannot help him. He understood the psychologists he had seen to have told him that his coping strategies were effective, and did not consider any further treatment would offer any benefit.
In cross-examination, Mr Pisaneschi acknowledged playing nine holes of golf recently which he managed with pain medication, and stated he had played four rounds so far in 2023. He also acknowledged that his prior sporting pursuits were casual and informal in nature. Mr Pisaneshi also admitted to riding his motorbike in the street for short stretches only.
Mr Pisaneschi was questioned about his statement that he is not interested in ‘talk therapy’, ‘listening to music’, or ‘sniffing flowers’ [17]. This reflected his understanding that his coping mechanisms were as beneficial as these kinds of treatment, providing the example that he would ‘jump in the car and go and have a good cry’. The Applicant was unable to recall when he first experienced suicidal thoughts, but thought it could have been after taking the medication Lyrica in 2017. He stated that he has to be ‘extremely low’ for such thoughts to recur now.
When presented with several recommendations from medical practitioners about treatment options, Mr Pisaneschi responded that he was unaware about the nature of cognitive behaviour therapy, and – otherwise – confirmed that he understood physical therapies not to offer benefit. The Applicant stressed that the ‘general impression he got from all of his doctors’ was to this effect, and stated that ‘no one’s actually put me on’ a pain management program. Mr Pisaneschi also denied embellishing his description of experiencing pain constantly since his groin surgery.
Dr Cohen provided two reports to the Respondent, dated 17 August 2021 (JHB6, 358), and 12 October 2021 (JHB6, 647). The second report deals with a series of questions about potential inconsistencies in certain facts and circumstances, and Dr Cohen does not alter the opinion expressed in her first report. Key findings in the first report are:
(a)Mr Pisaneschi meets the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood, and he reports dysphoria, frustration, hopelessness, episodes of tearfulness, loss of self-esteem, heightened anxiety due to loss of physical capacity, fatigue with loss of motivation and sleep disturbance;
(b)he is particularly emotionally burdened by a chronic pain condition with concomitant impacts on sense of self, manhood and physical capacity and, on the balance of probability, the psychological condition relates to his bilateral hernia injury in 2017;
(c)the disorder does not prevent Mr Pisaneschi from participation in employment, however it impacts his resilience, psychological stamina and general capacity, and he presents as someone who has persevered in the face of adversity and his coping style has been protective in managing his current situation;
(d)Mr Pisaneschi reported a trial of antidepressants that he did not find helpful and also sessions of cognitive behavioural therapy with a psychologist that he did not find helpful;
(e)given the complexity of factors including the pain condition, the treatment received to date has not been of assistance and no further psychiatric treatment would improve his functional capacity; and
(f)Mr Pisaneschi has a whole person impairment of 10%.
In cross-examination Dr Cohen accepted that medical records showing limited presentation by the Applicant for groin pain appeared to be at odds with his report of constant pain. She also stated that Mr Pisaneschi minimised the significance of his negative drug test. Dr Cohen confirmed that his identity was quite tied up with being a worker and provider for his family and that, being stoic, he tended to hide his emotions.
Dr Cohen considered that the Applicant had struggled to utilise psychological services effectively due to his personality style. The limited treatment attempted would not be sufficient and a minimum of ten sessions of cognitive behavioural therapy was required, and indeed it may take years to have effect. Dr Cohen also accepted that were Mr Pisaneschi’s physical pain to be ameliorated, his psychiatric condition could improve, and therefore it was possible that his psychiatric condition was not stable.
In re-examination, Dr Cohen completely agreed with the proposition that the prospect of amelioration was highly dependent upon engagement with counselling. Mr Pisaneschi was highly unlikely to benefit as he is not prepared to engage. She re-confirmed her opinion that if the Applicant’s physical complaint is not resolved, then his psychiatric condition is permanent. Dr Cohen also stated that if he were not to gain improvement from physical treatment, this would be ‘very demoralising’.
Associate Professor Rauchberger provided a report to the Applicant’s representatives dated 7 February 2023 (JHB9). I summarise from this report as follows:
(a)Mr Pisaneschi reported the impact of his condition on his functioning (in a manner consistent with his own statement) [17]-[24];
(b)he has a Chronic Adjustment Disorder with mixed anxiety and depressed mood which is the result of complications from his bilateral hernia [39], [46];
(c)the psychiatric prognosis is guarded due to Mr Pisaneschi’s chronic pain and resultant limitations and while it may be ‘somewhat improved with psychiatric treatment, [he] has indicated that he does not want to pursue psychiatric treatment in the future’ [40]; and
(d)accordingly his ‘condition has stabilised and is not likely to remit with or without further treatment … Mr Pisaneschi has reached maximal medical improvement for his psychiatric condition’ [Q4].
Associate Professor Rauchberger confirmed in evidence that his prognosis will continue indefinitely and with a ‘significant handful of symptoms’ Mr Pisaneschi’s condition had not remitted in many years.
When asked in cross-examination why the Applicant might not have reported his ongoing pain to his General Practitioner, the witness responded that in his experience, patients do not always disclose in this way to their treating doctor. Associate Professor Rauchberger considered that against a background of suicidal ideation, crying as a coping strategy was not ideal. He did not consider the limited psychological interventions attempted by the Applicant to be effective for an entrenched mental health condition. He considered that further physical treatment may be beneficial if it ameliorated Mr Pisaneschi’s psychiatric condition.
When asked about his endorsement of Dr Cohen’s conclusion that the Applicant had reached maximal medical improvement, Associate Professor Rauchberger stated that where a patient does not intend to undertake further treatment then a condition is stable and will not change: if Mr Pisaneschi is not invested in treatment, then its likelihood of success is reduced.
He confirmed in re-examination that lack of investment by a patient means they are less likely to adopt and deploy strategies, and there is accordingly often a poor outcome in terms of functional improvement.
Other medical evidence
Professor Cassandra Szoeke, neurologist, provided a report in late 2022 (JHB8, 682). She states that Mr Pisaneschi’s symptoms originally aligned with post inguinal hernia repair syndrome, and it was reasonable to assume this was due to the use of mesh. Professor Szoeke concurs with other pain specialists that ‘central sensitisation’ has occurred, and this accounts for symptoms that do not correspond to nerve distributions implicated in the surgery. She defers to the opinion of pain specialists and psychiatry for a prognosis.
In a report in early 2021, Professor Stephen Davis, neurologist (JHB4, 230) notes a history of a prior hernia repair, from which Mr Pisaneschi fully recovered. Professor Davis identifies a chronic, intractable and disabling pain syndrome with a likely significant psychological component over and above the chronic pain.
In his medico-legal report in late 2021 (JHB5, 328), Mr Peter Burke, general surgeon, identifies intractable neuropathic pain resulting from the mesh implants, and recommends urological assessment to address Mr Pisaneschi’s loss of sexual function and issues with continence.
Dr Simon Cohen, consultant pain specialist, reported in late 2021 (JHB4, 203) that Mr Pisaneschi’s impairment relates solely from the development of a chronic pain condition. Dr Cohen notes the use of physiotherapy and psychology and multiple medications, and notes the Applicant is ‘not currently in a position to consider any further interventions or operative techniques’, but should remain under review. The writer considers that, on the balance of probabilities, his condition has persisted since the operation and was present prior to his suspension from driving. He identifies symptoms consistent with chronic postoperative pain and states that he expects that this is a condition that will not resolve.
Mr Pisaneschi was reviewed by a three-member pain management team at the Dorset Rehabilitation Centre in October 2019 (JHB3, 134). The team recommendation reads ‘No Program’, and accompanying programme objectives is completed with ‘N/A’. It states further: the Applicant may benefit from a trial of individual pain management including physiotherapy, occupational therapy and psychology ‘if he is open to this and if he is open to the behaviour changes required to improve pain management strategies’; he may benefit from occupational therapy to review work capacity; and, he may benefit from expanding his coping strategies and learning mindfulness, however there are at present certain barriers to doing a program.
Dr Clayton Thomas, rehabilitation and pain medicine consultant, states in a report in mid-2019 (JHB3, 132) that Mr Pisaneschi is unlikely to gain a significant amount from the physical aspects of a pain management program, but may gain some information from the functional and psychological perspective relating to his pain. This led to the referral to Dorset Rehabilitation Centre.
Mr Pisaneschi also saw Dr Symon McCallum in mid-2019 (JHB3, 130) who considered the Applicant was a candidate for a spinal cord stimulator, which he was ‘not keen’ on, and other recommendations include drugs for neuropathic pain.
Earlier in 2019 a report was prepared by Dr Nick Christelis, pain specialist and anaesthetist (JHB3, 128), in which a full pain management program is recommended. Other recommendations include specific drugs and steroid blocks, a spinal cord stimulator, and further surgery.
Mr Pisaneschi was reviewed by the surgeon who conducted the 2013 hernia repairs, Associate Professor Peter Danne, in late 2018 (JHB3, 125). The surgeon describes ongoing and troublesome pain particularly in the right groin. He states that all attempts at analgesic solutions from pain specialists have failed to help, and that his own attempts with injections have also not helped. The surgeon considers the only possible further intervention is surgery that carries a 60% chance of helping significantly, with a ‘small but definite risk’ of loss of a testicle.
Material produced under summons from Professor Danne includes a report from April 2016 in which the writer states Mr Pisaneschi reported some pain since the operation and the development of ‘quite significant localised pain’ over the past seven to eight months. A report from April 2013 notes that symptoms following surgery may take 6-12 months to settle.
Medical records produced under summons from Mr Pisaneschi’s GP reveal consultations in which references are made to groin pain in: early 2015; 2016 contemporary with the Applicant’s presentation to his surgeon; late 2017; early and late 2018; through late 2019 and 2020; and, again during 2021.
CONSIDERATION
The Applicant contends in the ASFIC that he has undertaken all reasonable rehabilitative treatment, and that there is no evidence any further treatment will result in any improvement to his psychiatric condition [12]. It is contended that Mr Pisaneschi suffers a whole person impairment of 10%, under Table 5.1 of the Guide, and attaining a maximum score of 15 for non-economic loss [15]-[16].
The Applicant refers to Filla v Comcare [2001] FCA 964 and Comcare v Filla [2002] FCAFC 61 (AS [13]-[17]). The Full Court determined that it is a question of fact as to what might constitute reasonable rehabilitative treatment, taking into account a range of factors including risks and benefit [11]-[13]. In the earlier decision, Katz J considered that if an employee’s refusal to undertake currently available treatment, regardless of its reasonableness, is likely to continue for a substantial period, this tends toward a finding that impairment is permanent [63]-[65].
It is submitted that the written opinions of both Dr Cohen and Associate Professor Rachberger were maintained under cross examination at the hearing; in short, absent any further treatment, Mr Pisaneschi’s psychiatric impairment is permanent [24], [35]. Extensive references are made to other medical evidence about the Applicant’s physical injury to the effect that further pain management is unlikely to benefit him [25]-[27].
More specifically, it is contended that further pain management should not be understood as being ‘reasonable rehabilitative treatment’ in respect of Mr Pisaneschi’s psychological impairment [31]. Further, given the Applicant’s intention not to pursue further psychological or physical treatment, his impairment should be seen as permanent [34]-[36].
The Respondent’s written submissions state briefly that Ms Pisaneschi’s psychiatric injury is not permanent (RSFIC [5]). At the hearing, the Respondent pointed to further observations in Comcare v Filla at [13], to the effect that the findings made in any particular case were not necessarily relevant, as questions of fact lie with the Tribunal.
Attention was drawn to several medical opinions about options for treatment of Mr Pisaneschi’s physical injury said to demonstrate that rehabilitation for groin pain is both reasonable and available (JHB 128, 130, 134). In addition, it was contended that the report of Dr Szoeke should be interpreted as indicating that the physical condition was not in fact stable.
In short, it was submitted that the Applicant had not requested approved treatment and there is no evidence a multidisciplinary pain program would not be beneficial. This contention was said to be particularly relevant in the light of the medical evidence that Mr Pisaneschi’s psychiatric condition was influenced by his physical state. Moreover, the witnesses had simply accepted the Applicant’s own assessment that further treatment would not rectify his situation.
It was further contended, with reference to Mr Pisaneschi’s full medical history, that he had under-reported hernia pain over many years, which was in contrast to his evidence concerning long experience of ‘unremitting’ pain. Therefore, a finding that the Applicant has embellished his evidence was a relevant consideration with respect to determining the statutory question. The Respondent also submitted that there is no evidence that Mr Pisaneschi’s erectile dysfunction is linked to his hernia.
The Respondent accepted the whole person impairment assessment of Dr Cohen, however contended that the Applicant’s evidence as to his capabilities should be considered when addressing non-economic loss scores.
Permanent impairment
The parties differ somewhat on the scope of reasonable rehabilitative treatment in s 24 of the Act, in the context of Mr Pisaneschi having two accepted injuries. As noted above, the relevant claim for permanent impairment (JHB6, 344) was made prior to the claim for psychiatric injury (JHB6, 633), and therefore was made in respect of a condition described as ‘severe neuropathic and somatic pain secondary to left and right hernia (inguinal) with reaction to ‘mesh’’.
Unsurprisingly, the description of impairment in the form is also focused in part on physical symptoms around the experience of pain, including testicular pain, the need for crutches for movement, and sleep disturbance. The extent of impairment is also described in terms of limitation of physical movement. It is self-evident that sections of the form addressing non-economic loss invite comments about matters including pain and mobility.
Under s 24(2)(d) of the Act, consideration may also be given to ‘any other relevant matters’. The medical evidence clearly demonstrates that Mr Pisaneschi’s two accepted injuries are related. Therefore, even were my inquiry confined to treatment for his psychiatric injury, it would be reasonable to take into account the nature and extent of the physical injury, together with treatment received to date, and any associated recommendations.
Accordingly, in Mr Pisaneschi’s particular circumstances, also taking into account the medical evidence summarised above, I consider it reasonable not to confine consideration solely to rehabilitation related to the psychiatric condition.
There is some merit in the approach taken by the Respondent in this matter about a range of recommendations given to the Applicant. However, it is necessary to briefly consider the meaning of ‘rehabilitative treatment’. This was considered in Filla v Comcare and Katz J considered it not confined to rehabilitation in the sense adopted elsewhere in the Act, such as rehabilitation programs provided by an employer under s 37 [45]. That is, specific medical interventions might also be embraced by the term. His Honour (in parentheses) and the Full Court also both considered dictionary definitions that in general lean toward a meaning of ‘restoring to a prior condition’.
I accept that a range of pain management recommendations were made during 2019. One such recommendation was for assessment by a pain management team. The results of this are somewhat ambiguous given that, as I read the report, no program was in fact formally recommended. The language of this report has similarities with later assessments, specifically that of Dr Cohen, in which it is acknowledged that Mr Pisaneschi must be open to adopting the recommended treatments for them to have the desired effect. Equally, Dr Thomas appears to have been pessimistic about the prospects of success of a pain management program.
These recommendations, with the qualifications I have identified, come against a background of the 2018 review by the Applicant’s surgeon. While Professor Danne appears willing to have pursued further intervention, his report overall does not present a very positive picture for ‘rehabilitation’ of the issues most directly causative of the pain and subsequent psychiatric condition. Furthermore, the most recent assessments do not include clear treatment pathways. Indeed, Dr Szoeke specifically defers to other specialists and the physical medicine specialists generally acknowledge the complex interaction of Mr Pisaneschi’s pain condition with his psychiatric condition. In any event, the neurological assessments find an intractable pain condition that raises questions as to the feasibility of prior specific recommendations, which are now also dated.
The absence of direct evidence from previous report writers, and the age of their recommendations, makes it difficult to come to a concluded view about whether physical interventions of various kinds can now be considered reasonable rehabilitative treatment. However, given the quite mixed picture overall that emerges from the medical evidence, I am not fully persuaded by the Respondent’s contentions about the existence of reasonable rehabilitative treatment for Mr Pisaneschi’s physical complaint.
At first blush, the Respondent’s questioning about whether or why the Applicant had not requested of the employer a pain management program carries some appeal. However, given my view of the medical evidence, I consider it to indicate that Mr Pisaneschi did not consider that he had a further treatment pathway. I have summarised some of the evidence, for example the later interventions by Professor Danne, demonstrating that a range of rehabilitative treatment has been pursued. This experience I consider fairly informed the Applicant’s attitude about undertaking any further steps. These matters reinforce my conclusion above as to the absence of reasonable rehabilitative treatment for the physical injury.
Does any reasonable rehabilitative treatment exist for the psychiatric injury? Dr Cohen’s opinion was that this was highly contingent upon improvement in Mr Pisaneschi’s physical condition. As I have noted, the evidence indicates that there are no reasonable treatment interventions available, and if there were, Mr Pisaneschi lacks the conviction that they will assist. I found her evidence to be somewhat contradictory, since she expressed a clear view about the nature and scale of therapy that would potentially assist the Applicant. However, her written opinion was to the effect that no further treatment was indicated, and she did not consider Mr Pisaneschi amenable to undertaking treatment.
This position was strongly reinforced by the evidence of Associate Professor Rauchberger. He held to the view both that Mr Pisaneschi has reached ‘maximal’ improvement, and that in the absence of commitment, psychological therapy would not be beneficial. I accept the Applicant has a limited history of engaging with such rehabilitative treatment and that this was prior to the diagnosis of his psychiatric condition. These factors might suggest that further engagement was reasonable. However, the balance of expert opinion is that he will not benefit given his personality style and mindset.
I consider the better view to be that there is no further reasonable rehabilitative treatment available to Mr Pisaneschi. For the avoidance of doubt, I make the further finding that should there be reasonable rehabilitative treatment that is available, of any form, that I consider that it is not likely Mr Pisaneschi will undertake further rehabilitative treatment for a substantial period of time.
Accordingly, it follows that I find that Mr Pisaneschi’s impairment is permanent.
Impairment assessments
I note the parties agree that the Applicant meets the requisite minimum 10% degree of impairment. I have considered the descriptors in Table 5.1, the medical material lodged, and evidence in general, and consider it appropriate to find that Mr Pisaneshi has a 10% level of impairment pursuant to Table 5.1
In considering the percentage of non-economic loss suffered by Mr Pisaneschi I take into account the guidance provided in Division 2 of the Guide, information and scores provided in the claim form, the assessment of Dr Cohen, and other material including the information obtained in the Dorset Rehabilitation Centre assessment.
Pain
I accept that medical records indicate the Applicant has experienced severe levels of pain, however the highest rating suggests pain cannot be managed with medication. I understand the evidence to be that Mr Pisaneschi uses limited medication, which does not rule out the ongoing experience of pain. Equally, the form encourages reflection upon the way pain interacts with activity. Mr Pisaneschi continues to be engaged in the workforce, and stated he is able to play nine holes of golf with the assistance of pain relief medicine.
Accordingly I consider a rating of 4 to be more consistent with the evidence overall.
Suffering
Some challenges arise when considering this factor due to the evidence about the treatment of Mr Pisaneschi’s psychiatric condition. There appear to be reasonable grounds for considering that the symptoms of the Applicant’s distress are at the least – in the words used on the form – ‘wide ranging and tend to dominate thinking’. However, this descriptor appears alongside another which suggests that treatment is necessary to manage symptoms. The evidence indicates that Mr Pisaneschi does not receive treatment for the routine management of his mental health condition.
I do not consider the evidence to demonstrate his thought processes are interfered with. Further, the highest rating suggests that the Applicant’s activities of daily life must be ‘severely restricted’; I do not consider this to be sustained on the evidence. I fully accept however, that Mr Pisaneschi’s life is made substantially less enjoyable as a result of his impairment.
Accordingly, I consider a rating of 4 to be appropriate for this factor.
Loss of amenities
Assessment of mobility also presents some challenges. In the micro sense, it is clear from the hearing and descriptions in the materials, that Mr Pisaneschi exhibits a degree of frailty and routinely uses physical aids to enable him to stand, and to mobilise on foot. However, I do not understand him to be reliant heavily on others to mobilise physically in his home or wider environment, nor to rely on mechanical devices. He is evidently not restricted to a room, or to his home, as he attends the workplace and has outdoor recreational pursuits.
Accordingly, I consider a rating of 3 consistent with a markedly reduced functioning to be appropriate.
Assessment of social relationships is somewhat hampered by the partial nature of the evidence. Mr Pisaneschi’s written and oral evidence demonstrates disruption to his social engagement and he reported on the claim form that he is ‘socially isolated except for family’. As noted, he does appear to maintain infrequent contact with others for recreational purposes and he attends the workplace. I accept his evidence indicates his casual interactions can be strained due to the effects of his psychiatric injury. I also accept that intimacy with his wife has suffered substantially due to the impact on his sexual functioning.
On balance, I consider a reasonable assessment to be a score of 2 reflecting the evidence that Mr Pisaneschi largely has a confined set of relationships.
I do not accept that Mr Pisaneschi is now ‘unable to undertake any pre-injury recreation and leisure activities’ and the maximum score asserted by him is not sustainable on the evidence. Once again, however, there is not a direct fit between the evidence and the descriptors for this factor. As I have noted, the Applicant presents as having relatively significant challenges with mobility, yet is able to overcome these to participate intermittently in prior recreational pursuits. There is also no evidence that he requires ‘assistance’ – although the Guide does not elaborate on exactly what this might entail. I do note that he has described relying on his brother for gardening and home maintenance.
Overall, I accept that Mr Pisaneschi’s impairment substantially limits his capacity to engage in his previous recreation and leisure pursuits, and that any alternative pursuits have not been identified or are, inherently, unlikely. On this basis, I consider a score of 4 to be appropriate.
The original score offered for other loss was a score of 2 representing ‘marked disadvantage’. Dr Cohen has proposed the highest rating due to the impact of the impairment to Mr Pisaneschi’s sexual functioning. Taking into account the terms of the descriptor for this level, I am not satisfied that the rating for ‘severe disadvantage’ has been reached in this case.
Accordingly, I consider a score of 2 to be appropriate for this factor
I do not consider any rating is achieved in respect of the final factor, loss of expectation of life.
Based on my findings above and following the calculation scheme provided at B6 of the Guide, I find that an overall score for non-economic loss of 11.4 is achieved. When converted to a percentage following Step 2, this results in a degree of non-economic loss of 76%.
DECISION
For the reasons given above the Tribunal decides that the decision under review dated 9 December 2021 is set aside and in substitution decides that the Applicant is entitled to compensation for permanent impairment in respect of his psychiatric injury pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 and that the degree of permanent impairment is 10% and the degree of non-economic loss is 76%.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
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Associate
Dated: 19 September 2023
Dates of hearing: 19, 20, 21 July 2023 Date final submissions received: 21 July 2023 Counsel for the Applicant: Ms Kim Bradey Solicitors for the Applicant: Redlich's Work Injury Lawyers Counsel for the Respondent: Mr Mark Seymour Solicitors for the Respondent: McInnes Wilson Lawyers
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