Re Dwight and Comcare
[2006] AATA 730
•23 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 730
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/410
GENERAL ADMINISTRATIVE DIVISION ) Re TERRY MICHAEL DWIGHT Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate23 August 2006
PlacePerth
Decision The Tribunal affirms the decision under review.
..............................................
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant suffered psychiatric injury – respondent accepted liability to pay compensation to applicant in respect of injury – applicant’s injury resulted in permanent impairment – degree of permanent impairment – respondent finally assessed degree of applicant’s permanent impairment as 30% - applicant subsequently claimed additional permanent impairment compensation – respondent rejected applicant’s claim – degree of applicant’s permanent impairment is 30% - respondent not liable to pay additional compensation to applicant – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), s 14(1), s 24 and s 25(4)
Guide to the Assessment of the Degree of Permanent Impairment Pt A, Table 5.1
Comcare v Emery (1993) 19 AAR 1
Comcare v Fiedler (2001) 115 FCR 328
Comcare v Ticsay (1992) 38 FCR 181
Re SAT and Comcare [2004] AATA 334
Thiele v Commonwealth (1990) 22 FCR 342
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION
23 August 2006 Deputy President S D Hotop
Dr D Weerasooriya, Member
Introduction
1. On 14 January 1996 the applicant, in the course of his employment with National Rail Corporation Ltd as a locomotive driver, was involved in a fatal train accident as a result of which he contracted post traumatic stress disorder (“PTSD”) from which he still suffers.
2. The applicant claimed compensation for injuries sustained by him in the abovementioned accident, and on 10 April 1996 the respondent accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to pay compensation to the applicant in respect of, inter alia, “post traumatic stress syndrome”.
3. On 30 May 1999 the applicant claimed compensation for permanent impairment resulting from his “post traumatic stress syndrome”, and on 6 April 2000 the respondent determined that the applicant had a 10% “whole person impairment” and that it was liable under ss 24 and 27 of the SRC Act to pay compensation to him on that basis.
4. On 5 December 2002 the applicant made a second claim for permanent impairment compensation, and on 5 February 2003 the respondent determined that the applicant had a 30% “whole person impairment” resulting from his PTSD and that it was liable under ss 24 and 27 of the SRC Act to pay additional compensation to him on that basis.
5. On 30 September 2004 the applicant made a third claim for permanent impairment compensation, but on 22 October 2004 the respondent determined that it was not liable to pay further permanent impairment compensation to the applicant.
6. On 20 January 2005 the applicant made a fourth claim for permanent impairment compensation, but on 9 May 2005 the respondent again determined that it was not liable to pay further permanent impairment compensation to the applicant. That determination was affirmed in a “reviewable decision” of the respondent dated 17 October 2005.
7. The applicant has applied to the Tribunal for a review of the abovementioned “reviewable decision”.
The Issue and the Tribunal’s Determination
8. The issue for the Tribunal’s determination is whether the degree of the applicant’s permanent impairment resulting from his PTSD is 40% or more, in which event the respondent will be liable under ss 24 and 27 of the SRC Act to pay additional compensation to him.
9. For the reasons which follow the Tribunal has determined that the degree of the applicant’s permanent impairment resulting from his PTSD is 30% (as determined by the respondent on 5 February 2003) and that, accordingly, no further compensation is payable by the respondent to him pursuant to ss 24 and 27 of the SRC Act.
The Legislation
The SRC Act
10. The SRC Act relevantly provides:
“4(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
approved Guide means:
(a)the document, prepared by Comcare in accordance with section 28 under the title ‘Guide to the Assessment of the Degree of Permanent Impairment’, that has been approved by the Minister and is for the time being in force; and
(b)if an instrument varying the document has been approved by the Minister – that document as so varied.
…
disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
…
permanent means likely to continue indefinitely.
…
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
24(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
25…
(4)Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.
…”
The approved Guide
11. The “Guide to the Assessment of the Degree of Permanent Impairment” (“the approved Guide”), as in force at all material times, relevantly states:
“PRINCIPLES OF ASSESSMENT
Impairment and Non-Economic Loss
Impairment means ‘the loss, loss of use, damage or malfunction, of any part of the body, bodily system or function or part of such system or function’. It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality. Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.
Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person. The measure of ‘activities of daily living’ is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.
Non-economic loss, which is assessed in accordance with Part B of the Guide, is a subjective concept of the effects of the impairment on the employee’s life. It includes pain and suffering, loss of amenities of life, loss of expectation of life and any other real inconveniences caused by the impairment.
...
Permanent
Permanent means ‘likely to continue indefinitely’. In determining whether an impairment is permanent regard shall be had to:
·the duration of the impairment
·the likelihood of improvement in the employee’s condition
·whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
·any other relevant matters.
An impairment will generally be regarded as permanent when the recovery process has been completed, ie when the full and final effects of convalescence, the natural healing process and active (as opposed to palliative) medical treatment has been achieved.
The Impairment Tables
Part A of the Guide is based on the concept of ‘whole person impairment’ which is drawn from the American Medical Association’s Guides.
Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and activities of daily living.
As with the American Medical Association’s Guides, Part A of this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this guide.
Gradations of Impairment
Each table contains impairment values at gradations of 5% or multiples of five percent. Where it is not clear which of two impairment values is more appropriate, Comcare has the discretion to determine which value properly reflects the degree of impairment.
There is no discretion to choose an impairment value not specified in the Guide. For example, where 10% and 20% are specified values there is no discretion to determine impairment as 15%.
…
GLOSSARY
Activities of Daily Living Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
Ability to receive and respond to incoming stimuli
Standing
Moving
Feeding (includes eating but not the preparation of food)
Control of bladder and bowel
Self care (bathing, dressing etc)
Sexual function.
…
Whole Person Impairment means the medical effects of an injury or a disease and is drawn from the American Medical Association Guides where it is there referred to as ‘whole man’ impairment. Evaluation of whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and on the activities of daily living. The Guides are structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus, a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this Guide.
…
5PSYCHIATRIC CONDITIONS
TABLE 5.1
NOTE: Includes psychoses, neuroses, personality disorders and other diagnosable conditions. The assessment should be made on optimum medication at a stage where the condition is reasonably stable.
% DESCRIPTION OF LEVEL OF IMPAIRMENT
0Reactions to stressors of daily living WITHOUT loss of personal or social efficiency AND capable of performing activities of daily living without supervision or assistance.
5Despite the presence of ONE of the following is capable of performing activities of daily living without supervision or assistance.
· reactions to stressors 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
10Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance.
· reactions to stressors 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
15ANY ONE of the following accompanied by a need for some supervision and direction in activities of daily living.
· reactions to stressors of daily living which cause (sic)
· modification of daily patterns (sic)
· marked disturbances in thinking
· definite disturbance in behaviour
20ANY TWO of the following accompanied by a need for some supervision and direction in activities of daily living
· reactions to stressors of daily living which cause modification of daily living patterns
· marked disturbance in thinking
· definite disturbance in behaviour
25ALL of the following accompanied by a need for some supervision and direction in activities of daily living
· reactions to stressors of daily living which cause modification of daily living patterns
· marked disturbances in thinking
· definite disturbances in behaviour
30ANY ONE of the following accompanied by a need for supervision and direction in activities of daily living
· hospital dischargees who require daily medication or regular therapy to avoid remission
· loss of self control and/or inability to learn from experience causing considerable damage to self or community
40MORE THAN ONE of the following accompanied by a need for supervision and direction in activities of daily living
· hospital dischargees who require daily medication or regular therapy to avoid remission
· loss of self control and/or inability to learn from experience causing considerable damage to self or community
50 ONE of the following
· severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others
· need for supervision and direction in a confined environment
60BOTH of the following
· severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others
· need for supervision and direction in a confined environment
90Very severe disturbance in all aspects of thinking and behaviour such as to require constant supervision and care in a confined environment and assistance with all aspects of activities of daily living”.
The Evidence
12. The evidence before the Tribunal comprised:
· the “T documents” (T1–T362, pp 1–698) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· exhibits A1-A15 tendered by the applicant, and exhibits R1-R9 tendered by the respondent; and
· the oral evidence of the applicant, Dr K Monick, Dr S Proud and Dr J Foster.
The Applicant’s Evidence
13. The applicant tendered in evidence his witness statement (Exhibit A1) whose contents are as follows:
“1My full name is Terry Michael Dwight. I was born on 13 September 1965 and am presently 40 years of age. …
2In or around 1990, I commenced employment with Westrail working as a ‘TA’, which is essentially an apprentice train driver. I remained employed with Westrail until late 1995.
3In or around late 1995, I commenced employment with the National Rail Corporation (‘National Rail’) as a train driver.
Fatal Train Accident
4On the late evening of 13 January 1996/the early morning of 14 January 1996, during the course of my employment with National Rail, I was involved in a fatal train crash.
5At the time, I was the co-driver of a National Rail train heading from Parkston, Western Australia, to Perth. The driver of the train was Mr Wayne Monck. Together with Mr Monck and I in the cabin of the train was an 11 year old boy, Billy-Lee Brooks, who was the son of a friend of Mr Monck’s.
6As we were passing through Hines Hill, approximately 240 km East of Perth, our train collided with a fuel-laden Westrail train that was pulling into the Hines Hill siding. The collision caused a large explosion.
7Mr Monck and Bobby-Lee were trapped in the train and were killed.
8I managed to escape from the train by moving out of the cabin onto the locomotive. I fell off the locomotive, landing on the ground. I was then lead away from the locomotive by a Mr Vern Hill, a local farmer who attended the scene of the accident. Had Mr Hill not lead me away, I believe that I may have collapsed and been killed.
9Whilst I acknowledge the bravery of Mr Hill, I wish that he hadn’t been there. I feel that I would have been better off not surviving the accident.
10I was hospitalised for 10 days at Sir Charles Gairdner Hospital immediately following the accident.
11I understand that this accident was the worst train accident in Western Australia in 50 years.
12Prior to the accident, I had what I consider to be ‘the Australian Dream’. I was happily married with 3 daughters, a good job which I enjoyed, a house and a car. I was healthy, both physically and mentally.
Claims for compensation
…
PTSD
20I was diagnosed as suffering from PTSD shortly after the train accident of 14 January 1996. I have continued to suffer from this condition since that time and am aware that the condition has deteriorated over time.
21As a result of my PTSD:
21.1I constantly ruminate over the accident, why it happened, and what could or should have been done to avoid it;
21.2I have attempted to commit and regularly consider suicide;
21.3.I have no motivation;
21.4I have no patience;
21.5I suffer from memory loss;
21.6I have a poor attention span;
21.7I suffer from sleep deprivation, although this is alleviated to some extent with medication;
21.8I frequently consider exacting some form of revenge against Westrail and the Public Transport Authority. I recently had an altercation with some train guards at Fremantle train station which resulted in me being charged by the police.
22My PTSD has resulted in the breakdown of my marriage. I could see that my condition was having an adverse effect on my wife, so in or around 2003 we had a 6 month trial separation. During this time, my relationship with my wife continued, we simply didn’t live together. At the end of this 6 month period, I moved back into the family home, however my condition had not improved and we separated again. On both occasions I voluntarily left the family home as I could see the effect my condition was having on my wife and I felt that I could not be a good father to my daughters.
23Until recently, the relationship between my wife and I remained good and my wife was assisting with my day to day care.
24I refer further to the Non-Economic loss forms completed by me or on my behalf (as contained within the T-documents) and Dr Monick’s medical reports which set out in greater detail how my PTSD affects me.
Multiple Sclerosis (‘MS’)
25In 1999, I was diagnosed as suffering from MS. This diagnosis was made approximately 6 weeks after an onset of visual problems. These problems arose shortly after comments were made by Mr Monck’s widow on television questioning who was driving the train at the time of the accident. I felt that Mrs Monck was accusing me of killing Mr Monck and Bobby-Lee. I was particularly stressed and upset at the time.
26In so far as I understand MS, it affects different people in different ways. For example, whilst a friend of mine who has MS requires the use of an electric wheelchair, I have no mobility problems other than suffering from a small balance problem. Other effects or consequences of my MS are:
26.1I have weekly injections, which are administered by Silver Chain, and which reduce the frequency of MS attacks;
26.2I have a bladder condition, however this is controlled with medication and uridomes;
26.3I suffer from optic neuritis.
27I feel that my MS is manageable and that it is irrelevant to how I feel mentally. However, by virtue of my PTSD, I am not motivated to do some of the things that I know I could do to assist with my MS, such as attend a physiotherapist or the gym.
Medical treatment and hospitalisation
28I commenced seeing Dr Kerry Monick, psychiatrist, in January 1997. I have continued to see Dr Monick on a regular basis since that time.
29I also receive assistance from both the Fremantle and Rockingham Mental Health Services. I use these services at times of crisis, for example when I slit my wrist (see below).
30I receive daily care (excluding weekends) from a carer, who assists me with domestic activities.
31I have been admitted to Perth Clinic, Hollywood Clinic and Fremantle Hospital for psychiatric care for periods of up to 2 weeks at various times since October 2001.
Suicide attempts and suicidal ideation
32In or around October 2004, I attempted to commit suicide. I had a large quantity of sleeping pills and anti-depressants in my house and I took all of these. I remember sitting down after taking the pills and then, some time later, the police arriving. The next thing I recall is waking up in hospital.
33I cannot recall precisely when, but sometime between October 2004 and September 2005, I again attempted to commit suicide. On this occasion, I took all of my pills and went to bed, taking my knife with me. It was my intention to cut my wrists, fall asleep and then – while asleep – bleed to death, however I fell asleep before cutting my wrists.
34In or around September 2005, I again attempted to commit suicide. On this occasion, I cut my wrists.
35On each occasion I have attempted suicide, it has been premeditated.
36I could not say that committing suicide is not part of my thought process. I see death as an attraction, as I don’t think about anything but the peace.
37While I try to be positive, I get down. For example, on 29 March 2006, I had a bad day. I was on my electric scooter and was contemplating going to the beach to ‘switch the light out’, however I managed to ride to the Mental Health Service instead."
14. The applicant said that, in addition to the periods of hospitalisation referred to in his witness statement, he spent a week in Royal Perth Hospital in April 2006 because of depression and his contemplating suicide by driving his electric scooter in front of an oncoming train.
15. In cross-examination the applicant said that he lives alone in a ground floor flat. He said that he is visited by a person from “Silver Chain” once per week to ensure that he receives his weekly injections, and that he is also visited 2 or 3 times per week for 1 or 2 hours by a person who helps him with cleaning and ensures that he does “things” that he would otherwise “forget” to do. He added that he attends the MS Society on Fridays which involves his travelling 3-4 kilometres each way on his electric scooter. He said that he generally stays at home and “dictates” letters and builds things (such as a stand frame which he recently made for a friend) and occasionally spends time on the internet. He added that he uses the internet to try to meet people.
The Evidence of the Medical Witnesses
Dr K Monick
16. Dr Monick confirmed that she has been the applicant’s treating psychiatrist since 1997 and that she presently sees him approximately once per week.
17. Dr Monick confirmed that she had provided a report dated 18 November 1999 (T158) to the respondent in which she stated that:
· the applicant suffers from PTSD as a result of the train accident on 14 January 1996;
· the applicant was also diagnosed as suffering from MS in May 1999, but she was “unable to establish a definite relationship” between his MS and the train accident;
· the applicant’s psychiatric and physical condition was currently being aggravated by the onset of his MS, and without those aggravating factors his PTSD would probably have been “permanent but mild”;
· the degree of the applicant’s “whole person impairment” resulting solely from his PTSD was 10%;
· she expected that the applicant’s impairment would “deteriorate significantly”.
18. Dr Monick confirmed that she had written a letter (T192) to Dr E de Jong for the purpose of having the applicant admitted to Perth Clinic (a psychiatric hospital) in October 2001 because of a deterioration in his PTSD condition and his suicidal ideation. Dr Monick also confirmed that she had received a letter dated 30 November 2001 (Exhibit A2) from Dr de Jong stating that the applicant was admitted to Perth Clinic on 26 November 2001 and was discharged on 30 November 2001.
19. Dr Monick confirmed that she had provided a report dated 11 December 2002 (T209) to the respondent in which she stated that:
· the applicant’s PTSD symptoms were currently very severe;
· the applicant was currently hospitalised in the psychiatric unit at Hollywood Private Hospital because of his PTSD symptoms and “severe depression, at times suicidal”;
· the applicant’s PTSD condition had become “much more severe over the past 1 to 2 years”;
· the applicant suffers from “severe disturbances of thinking and/or behaviour which entailed potential or actual harm to self or others” – he has “expressed repeated suicidal ideation over the past 12 months” and has also “repeatedly expressed his desire to achieve some sort of retribution regarding National Rail and this has included thoughts of blowing up or otherwise destroying National Rail property”;
· the applicant’s “severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others” are “directly related to [his] employment with National Rail”;
· the applicant’s PTSD incapacitates him more than his MS;
· without the MS the applicant “would still be suffering from a psychiatric disorder (PTSD with impairment rating of 30%)”;
· it is possible that the applicant “may eventually need placement in a residential care facility” and that in the meantime he “should be involved in daily activities supervised by external agencies”.
20. Dr Monick confirmed that she had supported the applicant’s claim of 20 January 2005 for additional permanent impairment compensation and had assessed the applicant as suffering “60-90% disability according to Comcare psychiatric disability rating”. With respect to Table 5.1 in the approved Guide, Dr Monick confirmed that it was her opinion that the applicant suffers from “severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others”, and that he “requires supervised care”. Dr Monick’s evidence continued:
“What was your understanding of the phrase: ‘Confined environment’ – ‘Supervision and direction in a confined environment’?
‑‑‑Well, that - that was a difficult thing for me to understand but I would have thought - I still believe that Mr Dwight's interests would be best served if he were at least in a group type home with a 24-hour carer. I - the confined environment, I presume we're talking about a hospital situation. I don't believe he requires constant hospitalisation. I don't believe the facilities are any longer available for that type of care. In fact, there are no facilities available for the care that I believe he does need.
Well, he was living in a unit, is that right?‑‑‑Yes.
Living alone in a unit?‑‑‑Yes.
And I think you were saying that you supported his having help?‑‑‑Yes.
So from your point of view, if he had that help while living in the unit, would that have been sufficient?‑‑‑It's sufficient for a good deal of the time but it's insufficient some of the time.
...
Sorry, you said that help in the unit would have been sufficient a good deal of the time?‑‑‑Yes.
But I think you went on to say not some of the time?‑‑‑Mr Dwight is chronically suicidal and can be very impulsive. He has difficulty with organising himself and he can be very bored, become very bored, has nothing to do, can become very impulsive. He needs more of a structured environment, in my opinion.
All right. Just taking that point a bit further. If a confined environment - and we will have some discussion later on about what a confined environment may be - but if it is a hospital as you've alluded to, do you feel that Mr Dwight may require from time to time in the future hospitalisation because of his PTSD?‑‑‑Definitely, yes.” (Transcript, pp 52-53)
21. Dr Monick confirmed that she had written a letter dated 29 September 2005 (T356) regarding the applicant to the Admitting Psychiatrist, Perth Clinic, as follows:
“Could you kindly consider admitting for acute care and treatment:
Terry Dwight DOB: 13/09/1965
…
The abovenamed has been under my psychiatric care since his 14/01/1996 train accident in which he received severe burns and thereafter suffered from PTSD. He initially responded well to psychiatric treatment and was involved in a rehabilitation programme with Telstra, but then developed MS, diagnosed in 5/99 with resulting visual, coordination and incontinence problems. He has always suffered from very intrusive thoughts relating to the accident, flashbacks and nightmares. He suffers most severely from intractable insomnia. Anxiety and depression can vary widely and can be extremely severe. There are significant cognitive problems which impact severely on concentration and memory. Self-esteem is very low, there are feelings of helplessness and hopelessness and severe, ongoing suicidal ideation. Terry carries a knife with him: he has just given it to me. He has requested hospitalisation to help discontinue suicidal thoughts and develop healthier goals.
He is currently living alone and receives weekly disability income from Comcare. He is separated from his wife and 3 daughters. He has daily assistance through Silver Chain and Care Options. He sees me once weekly and attends the MS Society on Fridays. After his recent 16/09/05 suicide attempt by wrist slashing (when he was briefly admitted to RPH and had plastic surgery tendon repair), he has been at home at his rented unit feeling increasingly isolated and depressed. I have been in touch with Rockingham Mental Health Centre and requested social services and support. Care Options drive him to appointments.
…”
22. Dr Monick confirmed that she had written a letter dated 30 January 2006 (Exhibit A4) regarding the applicant to Dr R Davidson, Chief Psychiatrist, Department of Health, as follows:
“The abovenamed has been under my psychiatric care for over 9 years. He was involved in a well publicised fatal train crash which occurred on 14/01/1996. The driver and a boy riding with them were killed. Mr Dwight, who had just left the driver’s cabin, was severely injured and burned but, with help from a bystander, managed to jump to safety. He has suffered since from severe PTSD, complicated in 1999 by the onset of MS. Both conditions have caused serious deterioration and over recent years Mr Dwight has separated from his wife and family and currently, with comprehensive community assistance (including Silver Chain and Care Options), lives in a rental apartment. His medication is controlled by courier delivery of a Webster pack every 2 days.
To date he has made 3 suicide attempts, by overdose or wrist-slashing, with admissions to hospital. However, after every admission he immediately denies suicidal tendencies and requests release, which is granted.
I have grave concerns for Mr Dwight’s wellbeing since he has expressed his intent to suicide on numerous occasions and to numerous agencies over the last month (to mark the significance of the 10 year anniversary of the accident).
On contacting Rockingham Mental Health Clinic on 12/01/06, I was informed that he was discharged from their program.”
Dr Monick explained the purpose of that letter as follows:
“At the time I was – I was very concerned about Mr Dwight because of the tenth anniversary of his injury. He was acutely suicidal over a period of a month or more. He was contacting various different groups, including Comcare. I believe he might have called members in the State Government here regarding his condition and he was threatening suicide. So I tried to get him more acute care down in the Rockingham area but it appeared that his case had been closed with the Rockingham Mental Health Clinic so I was writing to Dr Davidson to request assistance with organising him more support in that area.” (Transcript, p 57)
23. Dr Monick’s examination-in-chief concluded as follows:
“What in your view is the current position in regard to Mr Dwight’s likelihood of attempting suicide or committing suicide in the future? --- I think it’s very serious.” (Transcript, p 57)
24. In cross-examination Dr Monick acknowledged that the applicant’s contracting MS in 1999 and the subsequent breakdown of his relationship with his wife (who had since commenced a relationship with his brother) were “major contributing factors” in the deterioration of the applicant’s psychiatric condition since 1999. Dr Monick opined that the applicant’s MS aggravates his PTSD.
25. Dr Monick was referred to her report dated 11 December 2002 (see paragraph 19 above). She confirmed that her statement that the applicant’s PTSD incapacitates him more than his MS was based on what he had told her, and she agreed that the applicant is in denial about the full impact of his MS.
26. Dr Monick was also referred to Dr de Jong’s letter of 30 November 2001 to her regarding the applicant’s admission (at her request) to Perth Clinic on 26 November 2001 (see paragraph 18 above). Dr de Jong’s letter stated:
“Terry was admitted to the Perth Clinic on Monday 26 November and discharged on 30 November 2001.
He presented unexpectedly as settled without any clinical evidence of significant anxiety or depression. He slept well and participated in the group day programs and reported benefiting from those. After the groups he reported felling bored and frustrated that he had nothing to do and missed his home environment.
He was keen to be discharged on Friday. I had a session with Terry and his wife to determine the appropriateness of discharge.
Terry was keen to do the two week CBT course on an outpatient basis and will start on Monday 3 December.
At home he can be quite moody and impulsive according to his wife. It is clear that Terry’s behaviour and emotional state is different at home from the one observed in the Perth Clinic.
He seemed to be rather lighthearted in the face of all his problems and I just wondered if he was displaying some of the ‘optimism’ seen in MS patients.
…”
Dr Monick said that she could not explain the difference between the applicant’s presentation to her, which caused her to request his admission to Perth Clinic, and his presentation at Perth Clinic, as described by Dr de Jong. She acknowledged that the applicant might have been “putting on an act” when he consulted her, but she added that another explanation was that the applicant had been “admitted to a place where he felt safer and became more relaxed” (Transcript, p 77). Asked whether this indicated that his PTSD was not very serious, Dr Monick responded that that “may be correct”.
27. Dr Monick was questioned about whether, in her opinion, the applicant had experienced “severe disturbances of thinking”. Her evidence was as follows:
“And the term ‘severe disturbance of thinking’, doesn't that require some form of delusional thinking?‑‑‑Well, not necessarily. If one is constantly obsessed and preoccupied with traumata that's a severe disturbance of thinking to the extent that they are not living their lives normally.
…
What I'm suggesting to you is in psychiatric terminology, references to severe disturbances of thinking are references to people who have psychosis of some kind? A delusional mental state?‑‑‑They may be. I don't believe he's psychotic. I don't know if severe disturbances of thinking in the Comcare guide ‑ ‑ ‑
Don't worry about the Comcare guide?‑‑‑Means.
THE D.PRESIDENT: You don't have to comment on that. But I think the question that was put to you was entirely appropriate and it really as I understood the question involved psychiatric practice?
MR LENCZNER: Yes. In psychiatric practice?‑‑‑Mm.
The reference to severe disturbances of thinking I would suggest to you is a reference to psychotic or delusional type thinking patterns?‑‑‑If that is the case he is not psychotic.
No. But do you agree with that proposition, that in psychiatric practice when psychiatrists talk about severe disturbances of thinking they tend to refer ‑ ‑ ‑?‑‑‑In general ---
---to delusional thinking patterns?‑‑‑In general, yes. But I'm not sure that it is exclusively used that way.” (Transcript, pp 86, 101)
28. Dr Monick was also questioned about whether a “confined environment” was appropriate for the applicant. Her evidence was as follows:
“Now, you were asked by my learned friend about the confined environment. Do you agree that - now, is there in the psychiatric profession a definition or an accepted meaning of what confined environment means?‑‑‑I think it is a general - there is not a strict definition. But I would think, firstly, that a confined environment would be a hospital or, alternatively, a residential situation.
THE D.PRESIDENT: I think perhaps you should explain what you mean by residential situation.
DR WEERASOORIYA: Yes.
THE WITNESS: Well, the residential situation that I feel would be appropriate for him, as I think I said previously, would be a group home where there was a 24 hour carer available to supervise him. I don't believe that is available. I have been told it is unavailable. But that is what I would think is appropriate for him when he is not suicidal and needs hospital.
…
MR LENCZNER: You don't mean that you would want - he would need to be locked up in an environment which he couldn't leave when he wanted to?‑‑‑No, I'm not saying that.
… the word ‘confined’ in the psychiatric context, doesn't it usually mean a hospital or mental home environment which is enclosed so that there is no liberty of the individual to leave and go as they wish?‑‑‑It could, yes.
That is what it does mean, the word ‘confined’?‑‑‑Yes.
… doesn't ‘confined’, in the psychiatric context, mean locked up? You follow, confined?‑‑‑It can mean that, yes.
It does mean that, doesn't it?‑‑‑Yes, it does mean that.
And you would never suggest for this man that he required, as part of his treatment, that he be locked up. That means he couldn't go out when he wanted to?‑‑‑I would suggest that he needs that from time to time, when he is actively suicidal.
But when he is not trying to commit suicide ‑ ‑ ‑?‑‑‑When he is not actively suicidal, as I said, I would like to see him in a structured environment.
And a structured environment would mean that he would be in an environment, he could go and - come and go as he pleased?‑‑‑Yes.” (Transcript, pp 102,103)
29. Dr Monick confirmed that she had supported the applicant’s claim for additional permanent impairment compensation in January 2005 in response to a request by him for “an increase in his disability impairment rating”. She said that she assessed the degree of his permanent impairment as at least 60% at that time because he had recently, in October 2004, had 3 hospitalisations because of “suicidal problems”. She described the applicant as “chronically suicidal”.
30. In re-examination Dr Monick agreed that when the applicant is actively suicidal he needs to be placed in a confined environment but that otherwise, when he is not actively suicidal, he needs a “structured environment” which would involve “directional supervision”. She confirmed the contents of a letter dated 27 January 2006 (Exhibit A6) written by her “to whom it may concern” as follows:
“…
Mr Dwight has committed self harm 3 times by wrist slashing and overdose and has been hospitalised for same in recent years. He is currently chronically suicidal and is at risk of making a further suicide attempt.
He remains obsessed with Pacific Nation as a result of his 1996 train accident and suffers from frequent flashbacks, anxiety, insomnia and depression.
As previously stated, I believe he needs to be in a supervised environment, since he is not able to adequately take care of his daily needs.
…”
Dr S Proud
31. Dr Proud, Consultant Psychiatrist, confirmed that he had, at the request of the respondent, assessed the applicant on two occasions (7 April 2005 and 30 March 2006) and subsequently prepared two reports dated 8 April 2005 and 31 March 2006. He verified the contents of those reports.
32. In his report of 8 April 2005 (T323) Dr Proud concluded as follows:
“…
SUMMARY AND ASSESSMENT:
Mr Dwight is a 49 (sic) year old separated man who has Post Traumatic Stress Disorder and Chronic Major Depression as a result of the train accident on 14 January 1996.
In my opinion he has marked cognitive impairment secondary to the major depression. This cognitive impairment, combined with a marked reduction in motivation, is causing him to inadequately self-care in such a way that he does not clean his flat properly, cook for himself and is irresponsible with finances. He also forgets to take his morning medication.
In my opinion the situation can be improved with the following suggestions:
-He requires someone to give him his morning medication, so his medication should be rationalised (sic) so that they are taken just in the morning or mid morning and in the evening. He does not forget his medication in the evening. Silver Chain or a similar service could supervise his medication in the morning.
-His finances can be controlled by putting him under the Public Trustee.
-He can be trained to cook for himself and this should be a limited intervention, or he could purchase one good cooked meal a week and this could be a pre-paid purchase organized by Silver Chain or similar service, so that it does not have to be an ongoing support.
-In my opinion his psychiatrist should write to the Motor Vehicle Department and remove Mr Dwight’s driving licence as he is clearly a risk to others when driving on the road because of his poor concentration.
-Have someone clean his flat once a week or once a fortnight for two hours. I see no need for more intensive interventions than these.
In response to the specific questions contained in your letter dated 6 April 2005:
1.What condition(s) is Mr Dwight currently suffering from?
I consider that Mr Dwight suffers from Post Traumatic Stress Disorder, moderate severity – chronic as well as co-morbid Major Depression, chronic of moderate severity.
2.On the balance of probabilities is his condition(s) currently related to the work factors of 1996?
I consider that on the balance of probabilities his Major Depression is related to the train accident in 1996.
I consider that his Post Traumatic Stress Disorder is wholly related to that train accident.
3.If so, on the balance of probabilities, is Mr Dwight likely to suffer from the effects of the 1996 incident indefinitely?
I consider that on the balance of probabilities, the Post Traumatic Stress Disorder will continue indefinitely.
I consider that with the passage of time there will be improvement in his Major Depression but as major depression commonly accompanies post traumatic stress disorder, he will have residual depressive symptoms indefinitely.
In the future other factors such as isolation, separation from his wife and Multiple Sclerosis will contribute to his major depression.
4.If so, using Table 5.1 from the Comcare Guide to the Assessment of Permanent Impairment please provide an assessment of the degree of any permanent impairment due to the PTSD? Please elaborate?
With reference solely to the Post Traumatic Stress Disorder and the Major Depression that is accompanying the Post Traumatic Stress Disorder (excluding the contribution from Multiple Sclerosis), Mr Dwight has a Permanent Impairment of 25%.
5.If in your opinion the MS is related to the 1996 work incident, would you please apportion the degree of impairment between the effects of the PTSD and the MS?
In my opinion the Multiple Sclerosis is not related to the 1996 work incident. However, I consider that you should seek specialised neurological opinion on this.
With regard to Mr Dwight’s overall impairment, it is my opinion that approximately 75% is related to Post Traumatic Stress Disorder and 25% to Multiple Sclerosis.
I would point out that in the interview Mr Dwight minimised the effect of his difficult childhood and it is also my opinion that he is minimising the effect that Multiple Sclerosis has on his overall condition, but most particularly, his major depression. That is why in my opinion, the Post Traumatic Stress Disorder accounts for 75% of his current impairment and the Multiple Sclerosis 25% (the MS through its contribution to depression as well as the physical effects, as well as the anxiety regarding future outcomes of the MS).
…”
33. In his report of 31 March 2006 (Exhibit R6) Dr Proud stated:
“…
HISTORY:
Presenting Complaints:
Since my last report a number of factors have changed. The most important factor that has changed is that the relationship between Mr Dwight and his wife has broken down and Mr Dwight’s brother is now living with his wife. Mr Dwight’s wife has a restraining order against him which he broke and he has an upcoming court case in respect of that. The three daughters aged 14, 16 and 17 years live with his wife and he only sees them if they come over to visit him, which they do, although the older daughter has not visited for a fair period of time.
He and his wife had an agreement over the asset division but that appears to have broken down and there have been some family court attendances. The child support agency has a debit order on the money from Comcare to pay for the child support for Mr Dwight and his daughters.
Current Status:
Mr Dwight continues to get Care Options but it is only now Monday to Friday, 1-2 hours a day. He has changed the modus operandi with his medications and now takes the medications from a blister pack at night and at night puts out all of the morning medications in a bowl and in this way he has made sure that he does not miss his morning medication. He cut his wrist six months ago but he has not done so since but has a pervasive feeling of wanting to die and not caring about life at all.
…
Mr Dwight is completely demoralised and has a pervasive feeling of not caring whether he lives or dies and in fact has a pervasive wish to die if it were not for his daughters. His only reasons for living are his daughters, but he still has a plan to build trailers for disabled people. He spends all day obsessing over the court case regarding the train accident and the injustice of it. He does this every day. He said he does not care about the multiple sclerosis and he believes he could still get a girlfriend if he wanted to who would tolerate his multiple sclerosis. He is meant to catheterise himself four times a day but as part of his demoralisation does not do that. He only shaves twice a week but he does shower daily. He does not eat breakfast and lunch and has no snacks but for dinner he will make pasta, fish and chips frozen meals, but at times cannot be bothered eating. He is able to walk and stand without difficulties and defecate without difficulties and he is able to maintain an erection.
He has a life insurance policy and a Will that goes straight to his children. He is very unhappy with his accommodation in a Unit and wants to have a house with a shed so he can work in the shed building a trailer. He also wants Care Options to come in seven days a week, two hours. He also needs Care Options to drive him to his appointments to the shops with a car as he does not have a car, but he has an electric Go Far (sic).
…
SUMMARY AND ASSESSMENT:
In answer to your specific questions:
…
3.Whether you remain of the view that Mr Dwight is suffering from Post Traumatic Stress Disorder (moderate severity-chronic) and co-morbid Major Depression (chronic of moderate severity), and that these conditions are related to the accident in 1996.
Mr Dwight suffers from Post Traumatic Stress Disorder chronic, of moderate severity and Major Depression of marked severity. He has also developed pervasive demoralisation with chronic suicidal ideation but more importantly a ‘couldn’t care less’ attitude about life and flowing on from that attitude is a lack of self care and consideration in many areas of his life. This improves with prompting from other people such as Care Options.
I notice a report from Associate Professor Foster regarding cognitive difficulties. In my opinion the visiospatial difficulties are related to the multiple sclerosis but the other impairments in concentration, effort and short-term memory, can certainly, in my opinion, be ascribed to the depression. Most of the depression appears to be coming from the Post Traumatic Stress Disorder but there appear to be components of his depression related to the situation with his wife and his multiple sclerosis, despite his protestations to the contrary that he does not really care about his multiple sclerosis or his wife, although he did say he greatly resents what his brother has done.
4.Having regard to work-related factors (excluding factors that arise from the multiple sclerosis condition), please provide an assessment of the degree of permanent impairment under Table 5.1 of the Comcare Guide, and the basis for your assessment...
I would now like to make some specific comments regard Mr Dwight’s level of impairment with respect to the Comcare Guide.
With respect to activities of daily living, this can be interpreted in a very narrow or a wider fashion. In a very narrow fashion it can refer just to the physical abilities to stand, move, feed, control of bladder and bowel, self care with bathing, dressing, shaving etc. and sexual function. With all of these activities, except control of bladder, Mr Dwight has no physical problems or impairment. He has an impairment with bladder function and that is from the multiple sclerosis. Mr Dwight’s impairments with feeding and self care have to do with motivation, low concentration and his attitude and his chronic depression. His chronic depression with a passive wish to die is mostly related to the accident and the Post Traumatic Stress Disorder but there is also a component related to issues such as his multiple sclerosis and the situation with his wife. Therefore in the broader interpretation of daily living, Mr Dwight does have a significant impairment in feeding and self care and that is coming from his emotions and mind with respect to motivation, concentration and reason for living.
Bearing in mind the narrow interpretation of activities of daily living, this would therefore translate to a whole person impairment of 10%. However with the broader definition of activities of daily living, Mr Dwight has an impairment of 25%.
Because he has reactions to stresses of daily living which cause modification of his daily living patterns (he only shops significantly once a month, he does not leave the house much, in the house he does not eat breakfast or lunch and self cares poorly) as well as a marked disturbance in thinking (he obsesses every day and all day about the court case), with a definite disturbance in behaviour (self harm is a disturbed behaviour as is the neglect of his personal space, as is the way he is racking up financial debts and possibly the breaking of the restraining order could be described as a definite disturbance in behaviour).
In my opinion Mr Dwight does not attract a higher impairment percentage for the following reasons: he is living in a Unit and most of his time he is in a Unit. He cut his wrists six months ago and when he does that he spends time in hospital, but the majority of his time he is functioning, albeit poorly, in a Unit. That is, most of the time he is not in hospital or in need of hospitalisation. Therefore with that meaning, Mr Dwight does not attract a percentage impairment higher than 25%.
…”
34. In his oral evidence Dr Proud elaborated on the reasons why he did not assess the applicant’s level of impairment as higher than 25% under Table 5.1 in the approved Guide.
35. He said that, in his opinion, the applicant was not a “hospital dischargee”, within the meaning of Table 5.1, and he explained his reasons as follows:
“… So, as a psychiatrist I read a hospital dischargee as someone who is very frail with minimal resistance who with a slight push of a feather, so to speak metaphorically, will end up back in hospital not someone that has been in hospital necessarily six months ago, or even three months ago. But of course the more times they end up in hospital they more approach, what I would say, a common sense definition of a hospital dischargee because in a sense it reflects the more vulnerable they are. So when I wrote my reports, bearing in mind the number of hospitalisations that Mr Dwight had, I did not think he met the notional intention of the meaning of a hospital dischargee.” (Transcript, p 177)
He added that, although in his opinion the applicant would be “worse off” without his anti-depressant medication, and his regular attendances on Dr Monick and on his local mental health clinic are helpful and increase his resilience, he would not necessarily require hospitalisation if he ceased taking that medication as prescribed or if he “delayed [such] an attendance by a few weeks”.
36. As regards the criterion of “loss of self control and/or inability to learn from experience …”, Dr Proud’s evidence was as follows:
“ …My experience as a psychiatrist, the patient classes that would meet this definition and intention would be for example a severe borderline personality who cuts themselves every day or every second day, people with brain damage who have lost the organic capacity in their brain to learn from experience so, if they burn themselves their memory or their judgment is so impaired that they are more likely to do it again and not learn from that experience. It doesn't refer in my clinical experience to PTSD per se, these definitions.
…
Mr Dwight is impaired and he needs some assistance but I would call that level of assistance minor to moderate. I think, as I read the situation with Mr Dwight, it's loss of motivation, perhaps from the depressive illness in conjunction with the PTSD and when he is preoccupied with his case he may forget the medication, so someone coming in to jolt his memory and to improve is motivation to take the medication and to self care, is important for him but that is not around the notion of a loss of self control.
…
Inability to learn from experience from a psychiatric perspective usually refers to organic brain damage which can be seen in, as I said, motor vehicle accidents, even with severe multiple sclerosis affecting the frontal lobes. There are some so called functional psychiatric illnesses such as psychopathy and anti social personality disorder where there's an assumed lack of ability to learn from experience but contemporary thinking views these as organic diseases of the frontal lobes now. So again we're talking about organic brain damage for that group.” (Transcript, p179)
37. Dr Proud said that his professional understanding of the phrase “severe disturbances of thinking” was that it generally referred to psychotic thinking or delusional thinking. In his opinion, suicidal ideation does not, of itself, constitute a “severe disturbance of thinking”, within the meaning of Table 5.1. He was referred to various letters written by the applicant to the respondent in August 2002 and July 2003 (Exhibits A8-A12) regarding the abovementioned train accident of 14 January 1996 in which the applicant was involved, and he expressed the opinion that those letters were “well argued, well organised and well presented” and were “not compatible with a severe disturbance of thinking”.
38. As regards the applicant’s behaviour, Dr Proud’s evidence was as follows:
“Well, in my opinion Mr Dwight has a disturbance of behaviour but in the normal description I would not call it a severe disturbance of behaviour particularly if I was communicating to a colleague. He does have thoughts of suicide and acts on those thoughts at times. He does not self-care or care for the house and he is preoccupied with this case. So they are disturbances of behaviour but not severe disturbances of behaviour as I would normally use the term. Once again I would use that for people with psychotic illnesses, for example, a paranoid person who would cover the whole house in silver foil to reflect the rays or people with brain damage that defecate on the floor or the house is a complete jumble because their brain is so disorganised. That's how I would normally reserve that phrase.
And if one looks at the second half of it, which entailed potential or actual harm to self or others, the word ‘harm’ is a fairly I suppose flexible word. But to a psychiatrist if someone was sent to you with a referral saying: This man has severe disturbances of behaviour which entailed potential/actual harm to self or others, what would you be looking or expecting to see?‑‑‑Generally, someone with psychotic disturbance or brain damage who cannot control anger and has a large anger and who wants to smash objects or attack people or someone who has homicidal thoughts. Or in the case of someone that is suicidal the action of self-harm or a suicide attempt is imminent, meaning it can occur within the next 24 hours, imminently. Not something that may occur sporadically, three to six months.” (Transcript, pp 183-184)
39. Dr Proud said that there is a “conceptual link” between the criteria “severe disturbances of thinking and/or behaviour …” and “need for supervision and direction in a confined environment” in Table 5.1, in that they refer to people who “fall under the rubric of the Disability Services Commission with intellectual impairments, people with brain damage from trauma or disease, or people with significant psychotic illness” and who are “in hospital or in a hostel or an institution or they have a 24-hour live-in carer”. (Transcript, p 185)
40. In cross-examination Dr Proud said that there is no “standardisation” as regards the meaning of the adjectives “severe” and “marked” when used to qualify the phrase “disturbances of thinking”, and he added:
“There’s no psychiatric lexicon that defines those words.” (Transcript, p 194)
He agreed that, whilst he may choose to use the word “marked”, another person may choose to use the word “severe”.
41. In re-examination Dr Proud referred to his abovementioned understanding of the phrase “confined environment” and he opined that, when the applicant is on optimum medication and when his condition is reasonably stable, he does not require that kind of care.
The Neuropsychological Evidence
Dr J Foster
42. Dr Foster, Consultant Neuropsychologist, was called as a witness by the respondent. He confirmed that he had prepared a report dated 3 April 2005 (T320) regarding the applicant. In that report, which was based on an assessment of the applicant on 29 March 2005, Dr Foster set out the applicant’s history and the various tests administered to the applicant for the purpose of his neuropsychological examination, commented on his performance on those tests, and concluded:
“SUMMARY AND ASSESSMENT:
Mr Dwight presented as a gentleman with a postulated conjoint diagnosis of post traumatic stress disorder and multiple sclerosis. Based on his performance profile manifested on 29 March 2005, his current level of intellectual functioning lies within the ‘average’ and ‘borderline’ regions with respect to verbal IQ and performance IQ, respectively. Estimated premorbid intellectual functioning indicated that there was not a marked discrepancy between current and previous estimates of intellectual capacity. Exceptions to this general pattern were indicated with respect to concentration and attention (as indexed by performance on Trails A & B), and on elements of Executive Functioning. There was also some evidence, qualitatively, of visiospatial difficulty, as index by drawing to copy. Mr Dwight also manifested higher than expected levels of self-rated stress, anxiety and depression-related symptomatology, especially pertaining to the latter.
In answer to the specific questions outlined in your letter of referral dated 29 March 2005:
1.Obtain your opinion as to whether the PTSD (work related) is affecting neurological function.
Based on the neuropsychometric assessment conducted on 29 March 2005, there was no marked evidence of significant deterioration and intellectual functioning overall, relative to estimated premorbid levels of ability.
2.If so, a differentiation between the effects of the MS (non work related) and the PTSD on neurological function.
In those domains where some degree of impairment was suggested (e.g. visiospatial), the relevant literature indicates that this is more likely to be attributable to the neurological consequences of the MS.
3.If PTSD is affecting neurological functioning, your opinion as to whether these effects are permanent.
It is my considered opinion that the PTSD is likely to be affecting Mr Dwight’s affective status, specifically with regard to his self evaluated stress-anxiety-depression related symptomatology. It is questionable to what extent this impacts upon his neuropsychological functioning, based on the results obtained on 29 March 2005. By contrast, these symptoms would seem to be more relevant with respect to impaired activities of daily living (for example, with respect to Mr Dwight’s inability to complete jobs around the home).
4.If so, your assessment of the degree of impairment of neurological functioning due to the PTSD.
It is my opinion that the neuropsychometric pattern manifested by Mr Dwight on 29 March 2005 is most likely attributable to the effects on neurocognitive functioning of MS.
5.Your opinion as to whether the effects of PTSD has caused the MS disease, or contributed to the acceleration of the MS?
I am aware of no neurocognitive mechanisms linking PTSD directly with MS. However, it is feasible that the symptoms of PTSD (e.g. intrusive ruminations) could interact with neurocognitive deficits (which may be attributable to the MS), thereby potentially exacerbating them.
…”
43. Dr Foster also gave oral evidence but it is unnecessary to refer to that evidence in these reasons.
Report of Ms M Vidovich
44. The applicant tendered in evidence a report of Ms Vidovich, Clinical Neuropsychologist, dated 8 July 2005 (Exhibit A3). In that report, which was based on an assessment of the applicant on 5 July 2005, Ms Vidovich described in detail the applicant’s presentation, commented on his test performance, and concluded as follows:
“Summary and Impression:
Mr Dwight is a 39-year-old right-handed man with a diagnosis of relapsing remitting MS who was recently discharged from hospital following one month of treatment and rehabilitation. He reports a number of issues related to his attention and concentration, in association with complaints regarding his memory, motivation and level of fatigue. Presently, he is living independently with some limited supports.
Results from the current assessment reveal a degree of variability in his test performances. There is evidence of decline upon measures assessing his visual information processing speed and in general his performances on these tasks were in the abnormal range for his age. Whilst basic attentional processes appeared intact, relative to his last assessment [August 2000], he demonstrated a reduced working memory capacity. He was able to learn and retain new material, with no suggestion of dysfunction or deterioration in this domain since his last assessment. Mild slurring was at times noted in his expressive language, though his performances appeared generally commensurate with his background, with the exception of some mild inefficiency on a formal naming task. Perceptual, visuo-spatial and constructional skills were compromised by reduced planning and problem solving with his performances ranging from borderline to average, with evidence of decline since his last assessment [August 2000]. On a self-report questionnaire he endorsed experiencing a significant degree of mood symptomatology over the past week. In the main, his cognitive profile is consistent with his diagnosis of MS and the findings on cranial imaging, though certainly features of his test performances remain impressive in the context of his history.
Whilst there are islands of cognitive weakness, aspects of his test profile remain relatively preserved over time. He appears to demonstrate a reasonable level of insight into his current circumstances, and whilst certainly the observed cognitive inefficiencies would influence aspects of his daily functioning, his difficulties appear more strongly a product of issues related to motivation, mood and his reported level of fatigue. There seem to be a number of behavioural issues that are likely longstanding and related to his personality and features of his psychological state that have developed over time in response to factors associated with the previous accident he was involved in. His medication regime with respect to the combination of his mood stabiliser, use of sleeping tablets and Dexamphetamine may need review (though I understand this is managed by his psychiatrist), with additional management strategies in place to assist with his self reported poor sleep hygiene (sic) and fatigue during the day. He reports little daily activity and whilst there are a number of potential limitations with respect to him engaging in formal employment, he may benefit from some encouragement to adopt a more structured daily routine, incorporating aspects of running the household, physical activity and some volunteer/social activities.
…”
Analysis and Findings
The applicant has suffered an “injury” resulting in a “permanent impairment”
45. It is common ground that the applicant has suffered an “injury” resulting in a “permanent impairment”, within the meaning of s 24 of the Act, and the Tribunal so finds.
46. According to the evidence before the Tribunal, the applicant suffers from PTSD and MS but it is common ground, and the Tribunal finds, that whereas the applicant’s PTSD is an “injury” (as defined in s 4(1) of the Act) for the purposes of ss 14 and 24 of the Act, his MS is not.
47. According to the evidence before the Tribunal, the applicant also suffers from major depression. The Tribunal accepts the opinion of Dr Proud (expressed in his report of 31 March 2006 set out in paragraph 33 above) that, although the applicant’s MS and the breakdown of his relationship with his wife are factors contributing to his depression, the major factor contributing to his depression is his PTSD.
48. Accordingly, the Tribunal finds that the relevant “injury” in this case is PTSD and associated major depression.
What is the degree of the “permanent impairment” of the applicant resulting from the “injury”?
49. Pursuant to s 24(5) of the Act, the Tribunal is required to determine the degree of the “permanent impairment” of the applicant resulting from his “injury”, namely, PTSD and associated major depression, “under the provisions of the approved Guide”. The relevant provisions of the approved Guide are set out in paragraph 12 above.
50. The relevant “impairment table” in the approved Guide is Table 5.1 which is headed “Psychiatric Conditions”. The Note to Table 5.1 states that the assessment of the degree of impairment “should be made on optimum medication at a stage where the condition is reasonably stable”. The “Principles of Assessment” set out in the approved Guide state (under the heading “Gradations of Impairment”):
“Where it is not clear which of two impairment values is more appropriate, Comcare [and the Tribunal on review] has the discretion to determine which value properly reflects the degree of impairment.”
The Tribunal also notes that the Act is “socially remedial legislation” (Thiele v Commonwealth (1990) 22 FCR 342 at 346) and that ambiguous provisions in the approved Guide should be construed in the manner most favourable to the injured employee: Comcare v Ticsay (1992) 38 FCR 181 at 188; Whittaker v Comcare (1998) 86 FCR 532 at 544-545; Comcare v Fiedler (2001) 115 FCR 328 at 334.
Table 5.1 - 25% Level of Impairment
51. In assessing the degree of the applicant’s impairment resulting from his injury, in accordance with Table 5.1 in the approved Guide, the Tribunal will take as its starting point the 25% impairment value. It is common ground that the applicant’s impairment satisfies the description of a 25% level of impairment in Table 5.1 and the Tribunal, on the basis of the evidence before it, so finds.
Table 5.1 – 30% Level of Impairment
52. The Tribunal understands that it is common ground that the applicant has “a need for supervision and direction in activities of daily living”. On the basis, in particular, of the evidence of Dr Monick, and the report of Dr Proud dated 31 March 2006, the Tribunal finds that the applicant has a need for supervision and direction in certain “activities of daily living” (as defined in the Glossary in the approved Guide), namely, feeding and self care. The phrase “a need for supervision and direction in activities of daily living” is ambiguous in that it does not specify whether such need must exist in respect of all activities of daily living or may exist in respect of some (but not all) of such activities. Accordingly, the Tribunal will construe that phrase in the manner most favourable to the applicant (Comcare v Fiedler, at 334) and finds that a need for supervision and direction in some activities of daily living will suffice: see also Comcare v Emery (1993) 19 AAR 1. The Tribunal finds, therefore, that the applicant has “a need for supervision and direction in activities of daily living”, within the meaning of Table 5.1 in the approved Guide.
53. The next question which arises is whether the applicant is a “hospital dischargee who requires daily medication or regular therapy to avoid remission”, within the meaning of Table 5.1. The expression “hospital dischargee” is also, in the Tribunal’s opinion, ambiguous in that it might be construed broadly to mean a person who has been discharged from a hospital on the expiration of a period of hospitalisation, or it might be construed more narrowly (see, for example, the interpretation adopted by Dr Proud in his evidence set out in paragraph 35 above). The Tribunal will, for the reasons already explained, construe that expression broadly in favour of the applicant. The Tribunal notes, however, that in Re SAT and Comcare [2004] AATA 334 it was said that it was “not now appropriate” to describe a person, who had been “admitted to hospital for short periods” in 1997 and 1998, as a “hospital dischargee” for the purposes of Table 5.1. In the present case, however, the evidence is that the applicant has been hospitalised, by reason of his psychiatric condition, for short periods on 3 or 4 occasions between October 2004 and April 2006. Because the applicant has had several periods of hospitalisation which have occurred over the last 2 years, the present case is distinguishable from Re SAT and, in the Tribunal’s opinion, it is appropriate, adopting the broad construction of the expression “hospital dischargee” referred to above, to describe him now as a “hospital dischargee”, for the purposes of Table 5.1. The Tribunal is also satisfied, having regard to Dr Monick’s evidence, that the applicant “requires daily medication... to avoid remission” to hospital, within the meaning of Table 5.1.
54. Accordingly, the Tribunal finds that the applicant:
·is a “hospital dischargee who requires daily medication...to avoid remission”, and
·has “a need for supervision and direction in activities of daily living”,
within the meaning of Table 5.1 in the approved Guide. The Tribunal finds, therefore, that the applicant’s impairment also satisfies the description of a 30% level of impairment in Table 5.1.
Table 5.1 – 40% Level of Impairment
55. In order to satisfy the description of a 40% level of impairment in Table 5.1, the relevant impairment must, in addition to fulfilling the abovementioned requirements of a 30% level of impairment, also fulfil the following requirement:
“loss of self control and/or inability to learn from experience causing considerable damage to self or community”.
In the Tribunal’s opinion that additional requirement, on the basis of the evidence before it, is not fulfilled in the case of the applicant’s impairment. Although the applicant’s suicide attempts may be accepted as having caused him “considerable damage”, his evidence was that each of those attempts was “premeditated”. On the basis of that evidence, it follows, in the Tribunal’s opinion, that none of those suicide attempts involved a “loss of self control” or an “inability to learn from experience”. There was no evidence of any other instance whereby “considerable damage” was caused to the applicant or to the community by a “loss of self control and/or inability to learn from experience” on his part.
56. Accordingly, the Tribunal finds that the applicant’s impairment does not satisfy the description of a 40% level of impairment in Table 5.1 in the approved Guide.
Table 5.1 – 50% Level of Impairment
57. The Tribunal notes that the description of a 50%, and of a 60%, level of impairment in Table 5.1 contains requirements which appear to be quite different in nature from those which are contained in the description of a 30%, and of a 40%, level of impairment. It may be, therefore, that a particular impairment, which does not literally satisfy the description of a 40% level of impairment, might nevertheless literally satisfy the description of a 50% level of impairment. In that event the Tribunal accepts that, consistently with the abovementioned beneficial construction approach enunciated in Whittaker v Comcare and Comcare v Fiedler, it would be appropriate to determine that the degree of impairment was 50%.
58. The description of a 50% level of impairment in Table 5.1 requires the fulfilment of either of the following criteria:
·“severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others”, or
·“need for supervision and direction in a confined environment”.
59. As regards the former alternative criterion, there was a difference of opinion between Dr Monick and Dr Proud. Whereas Dr Monick described the applicant’s chronic suicidal ideation and his 3 suicide attempts as “severe disturbances of thinking and behaviour which entail potential or actual harm” to himself, Dr Proud preferred to describe them as “marked disturbances in thinking” and “definite disturbances in behaviour”, for the purposes of Table 5.1 in the approved Guide. Both agreed, however, that the meanings of the adjectives “severe” and “marked”, when used in psychiatric practice to qualify the phrases “disturbances of thinking” and “disturbances of behaviour”, are not definitive.
60. The Tribunal notes that Table 5.1 distinguishes between the following descriptions of thinking and behaviour:
·“minor distortions of thinking” and “lack of conscience directed behaviour without harm to community or self” (referred to in the description of a 5%, and of a 10%, level of impairment);
·“marked disturbances in thinking” and “definite disturbances in behaviour” (referred to in the description of a 15%, of a 20%, and of a 25%, level of impairment);
·“severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others” (referred to in the description of a 50%, and of a 60%, level of impairment); and
·“very severe disturbance in all aspects of thinking and behaviour...” (referred to in the description of a 90% level of impairment).
Having regard to the relevant definitions in the Macquarie Dictionary (4th ed) and The New Shorter Oxford English Dictionary, the Tribunal understands that:
·the phrase “minor distortions of thinking” refers to comparatively unimportant or insignificant perversions of thinking;
·the phrase “marked disturbances in thinking” refers to strikingly noticeable or conspicuous disorders or derangements in thinking;
·the phrase “severe disturbances of thinking and/or behaviour” refers to harshly extreme or grave disorders or derangements of thinking and/or behaviour.
61. The Tribunal notes the applicant’s evidence – and Dr Monick’s evidence – that he has attempted to commit suicide on 3 occasions in the period from October 2004 to September 2005 – the first 2 attempts by overdosing on medication, the third attempt by cutting his wrists. As regards the first 2 attempts, there is no medical evidence before the Tribunal regarding the extent of the overdosing, although, as regards the third attempt, there is evidence before the Tribunal (see Dr Monick’s letter of 29 September 2005 set out in paragraph 21 above) that the applicant was “briefly admitted to [Royal Perth Hospital]” where he had “plastic surgery tendon repair”. The Tribunal notes, furthermore, that Dr Monick, in a letter dated 30 January 2006 (see paragraph 22 above), commented that, after admission to hospital following each of his suicide attempts, the applicant “immediately denies suicidal tendencies and requests release, which is granted”. The Tribunal also notes, on the other hand, Dr Monick’s evidence that the applicant is “chronically suicidal” and that, in her opinion, the position regarding the likelihood of his attempting or committing suicide in the future is “very serious”.
62. Having regard to the whole of the evidence before it, the Tribunal is not satisfied that the applicant’s thinking and behaviour – in particular, his suicidal ideation and suicide attempts – are appropriately described as “severe disturbances of thinking and/or behaviour”, for the purposes of Table 5.1 in the approved Guide, notwithstanding that they “entail potential or actual harm to [him]self”, within the meaning of Table 5.1. In the Tribunal’s opinion, the applicant’s thinking is, as opined by Dr Proud, more appropriately described as “marked disturbances in thinking”, for the purposes of Table 5.1. As regards the applicant’s 3 suicide attempts, although it is arguable that each of them may appropriately be described as a “severe disturbance of behaviour”, the Tribunal is not satisfied that the applicant’s behaviour, when he is “on optimum medication” and “at a stage where [his] condition is reasonably stable” (see the Note to Table 5.1), is appropriately described as “severe disturbances of behaviour”, for the purposes of Table 5.1.
63. As regards the other alternative criterion which attracts a 50% level of impairment in Table 5.1 – namely, “need for supervision and direction in a confined environment” – the Tribunal understands, consistently with the opinion expressed by Dr Proud and ultimately concurred with by Dr Monick, that the expression “confined environment”, for the purposes of Table 5.1, refers to an enclosed situation in which a person is not free to come and go as he or she pleases; for example, where the person is confined in a hospital or psychiatric institution. Dr Monick opined that the applicant “needs that from time to time, when he is actively suicidal”, whereas Dr Proud unequivocally expressed the opinion that, when the applicant is on optimum medication and when his condition is reasonably stable, he does not require that kind of care.
64. The Tribunal, on the whole of the evidence before it, agrees with the abovementioned opinion of Dr Proud and is not satisfied that, when the applicant is “on optimum medication” and “at a stage where [his] condition is reasonably stable” (see Note to Table 5.1), there is a “need for supervision and direction in a confined environment”, within the meaning of Table 5.1, in his case.
65. Accordingly, the Tribunal finds that the applicant’s impairment does not satisfy the description of a 50% level of impairment in Table 5.1 in the approved Guide.
Table 5.1 – 60% Level of Impairment
66. It necessarily follows, from the abovementioned analysis and finding in relation to the 50% level of impairment, that the Tribunal also finds that the applicant’s impairment does not satisfy the description of a 60% level of impairment in Table 5.1 in the approved Guide.
Table 5.1 – 90% Level of Impairment
67. The applicant did not contend that his impairment meets the description of a 90% level of impairment. For the sake of completeness, however, the Tribunal notes that it also necessarily follows, from the abovementioned analysis and findings, that the applicant’s impairment does not satisfy the description of a 90% level of impairment in Table 5.1 in the approved Guide.
Conclusion
68. As previously noted, the respondent’s last assessment of the degree of the applicant’s permanent impairment resulting from his PTSD was 30%, and the applicant has been paid compensation by the respondent, pursuant to ss 24 and 27 of the SRC Act, on that basis.
69. In the present case the Tribunal has found that the highest level of impairment whose description in Table 5.1 in the approved Guide is satisfied by the applicant’s impairment is the 30% level of impairment. Accordingly, the Tribunal determines, consistently with the principles enunciated in Whittaker v Comcare and Comcare v Fiedler (above), that the 30% level of impairment in Table 5.1 properly reflects the degree of the applicant’s impairment.
70. The Tribunal finds, therefore, that the degree of the applicant’s permanent impairment resulting from his psychiatric injury, namely, PTSD and associated major depression, is 30%.
71. It necessarily follows from the abovementioned finding that no further compensation is payable to the applicant by the respondent, pursuant to ss 24 and 27 of the SRC Act, in respect of his permanent impairment resulting from his psychiatric injury.
Decision
72. For the above reasons the Tribunal affirms the decision under review.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: .....................................................................................
AssociateDates of Hearing 10 April, 19, 23 June 2006
Date of Decision 23 August 2006
Counsel for the Applicant Mr C Fraser
Solicitor for the Applicant Gibson & Gibson
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Sparke Helmore
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