Re Sat and Comcare
[2004] AATA 334
•29 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 334
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/394
GENERAL ADMINISTRATIVE DIVISION ) Re SAT Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President Jarvis and Dr Eriksen, Member Date29 March 2004
PlaceAdelaide
Decision The Tribunal:
1. sets aside the decision under review and in substitution therefor decides that the applicant has a permanent impairment in respect of her psychiatric conditions of 25%;
2. reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
3. orders that in the absence of any such application, the respondent pay the costs of the proceedings.
D.G. Jarvis
(Signed)Deputy President
CATCHWORDS
COMPENSATION – degree of permanent impairment – acute depression – meaning of “activities of daily living” in the Guide – meaning of “need for some supervision and direction” in activities of daily living – assessment of 25% permanent impairment under Table 5.1 of the Guide – reviewable decision set aside.
Safety, Rehabilitation and Compensation Act 1988, s 24, s 25 and s 28
Guide to the Assessment of the Degree of Permanent Impairment, Table 5.1
Re Emery and Comcare (1992) 15 AAR 477
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147
Re Langston and Comcare (2000) 64 ALD 449
REASONS FOR DECISION
29 March 2004 Deputy President Jarvis and Dr Eriksen, Member Introduction
1. The present matter has its origins in a claim made by the applicant in 1991 for a physical injury to both elbows and hands arising from her employment. Liability was accepted. Some five years later, on 1 July 1996, Comcare determined that liability was extended to include two psychiatric conditions, namely a depressive illness and adjustment disorder. On 10 January 1997 Comcare determined that the applicant suffered permanent impairment as a result of her employment related physical injuries and that the degree of that permanent impairment was 19%.
2. In a later decision dated 7 September 2000 Comcare determined that there was no liability to pay compensation in respect of further permanent impairment in respect of the applicant’s psychiatric conditions, because the conditions were not permanent, she had not undertaken all reasonable rehabilitative treatment, and she had not gained a further 10% increase in her level of permanent impairment, as assessed under the Guide to the Assessment of the Degrees of Permanent Impairment (the “Guide”). A review officer affirmed this determination on 21 October 2002. The applicant has applied to this Tribunal for review of this reviewable decision.
3. Mr M Roder appeared for the applicant and Mr A Possingham appeared for the respondent. Oral evidence was given by the applicant and Dr Marcia Fogarty in support of the applicant’s claim, and the respondent called Dr Andris Kalnins to give oral evidence. In addition, the Tribunal received the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the “T Documents”), and a number of other documents. After the hearing concluded, and at the applicant’s request, the Tribunal made a confidentiality order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975.
Issues
4. The issues before the Tribunal are as follows:
(a)what percentage permanent impairment, if any, the applicant suffers as a result of her compensable psychiatric conditions assessed in accordance with Table 5.1 of the Guide; and
(b)whether the applicant is entitled to payment of compensation for permanent impairment flowing from her compensable psychiatric conditions in accordance with s 24, s 25 and s 27 of the Safety, Rehabilitation and Compensation Act 1988 (the “Act”).
At the commencement of the hearing before us counsel indicated that two further issues had been agreed. These were that the impairment suffered by the applicant as a result of her psychiatric conditions was permanent, and that she had undertaken all reasonable rehabilitative treatment under ss 24(2)(c) of the Act.
5. The Tribunal has determined for the reasons set out below that the degree of permanent impairment which the applicant suffers as a result of her compensable psychiatric conditions should be assessed under the Guide at 25%, and that she should be paid compensation pursuant to s 24 of the Act on this basis.
Legislation
6. Section 24 of the Act provides for Comcare to be liable to pay compensation to an injured employee where the injury results in a permanent impairment. The amount of compensation payable to the employee is the amount assessed by Comcare under ss 24(4). This subsection provides:
“(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).”
Subsection 24(5) provides in effect that Comcare is to determine the degree of permanent impairment of the employee resulting from injury under the provisions of the Guide, and under ss 24(6), the degree of permanent impairment is to be expressed as a percentage.
7. Section 25 of the Act provides for interim payments of compensation. Subsection 25(3) provides in effect that where, after an amount of compensation has been paid to an employee following the making of an interim determination, Comcare makes a final determination of the degree of permanent impairment, the amount payable to the employee is the difference (if any) between the amount payable under s 24 on the making of the final determination and the amount paid to the employee under s 25 as an interim payment of compensation. Subsection 25(4) then provides:
“(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.”
8. Section 28 of the Act makes provision for Comcare to prepare the Guide, and under ss 28(4), where Comcare (or on review, this Tribunal) is required to assess the degree of permanent impairment of an employee resulting from an injury, the provisions of the Guide are binding in the carrying out of the assessment, and the assessment must be made under the relevant provisions of the Guide.
9. Table 5.1 of the Guide relates to psychiatric conditions. It provides as follows:
“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
. modification of daily patterns
. marked disturbances in thinking
. definite disturbance in behaviour20ANY 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
60 BOTH 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.”
10. The expression “activities of daily living” (“ADL”) is defined in the glossary of the Guide as follows:
“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”.
Background
11. The following background facts were not disputed, and we make the following findings from the evidence of the applicant and the documents received in evidence.
12. The applicant was born on 8 December 1956 and is accordingly now aged 47. Her father died at the age of 39, when she was eight. Her mother subsequently remarried and her step-father died about two years ago. Her mother is aged 74 and lives about 400 metres away from the applicant.
13. The applicant completed a science degree at the University of Adelaide in 1977. She then commenced employment as an experimental scientist.
14. In November 1990 the applicant began to experience pain in her thumb when doing an unusual amount of sample preparation which involved repetitive movements of the hands and arms. When her favoured hand became sore, the applicant started using her left hand instead, but symptoms developed on this side also. She first received treatment for hand symptoms in January 1991 and claimed compensation for her injuries in June 1991 (T3). Comcare accepted liability for compensation in respect of “overuse syndrome affecting the right thumb and resulting in a secondary condition of bilateral medial epicondylitis affecting both elbows and hands”. Her symptoms became steadily worse, and the applicant had operations on her left arm in August 1993 and on her right arm in May 1994.
15. In December 1994 the applicant was referred to a psychiatrist, Dr Lynette Rose, to investigate a depressive illness, and in a report dated 13 March 1995, Dr Rose reported to Comcare that the applicant was suffering from a major depressive illness (T7).
16. On 8 May 1995 the applicant claimed compensation in respect of her physical injury and also her depression (T6). Dr N Richards, a medical adviser from the Australian Government Health Service, reported on 20 September 1995 that as the applicant was still being treated it was not possible at that stage to apply a permanent impairment assessment to her condition (T9).
17. On 10 January 1997, Comcare determined that the applicant suffered a permanent impairment as a result of the applicant’s “compensable injury” and that the degree of that impairment was 19%. The applicant’s accepted conditions were described in that determination as “bilateral medial epicondylitis affecting both elbows and hands resulting in a depressive illness” (T16).
18. In a report dated 15 February 1998, Dr Rose diagnosed the applicant as suffering from an adjustment disorder (T18). On 6 April 1998, Comcare accepted liability for that disorder (T19). On 13 February 1999 the applicant claimed compensation for further permanent impairment in respect of “bilateral epicondylitis in both elbows and hands resulting in depressive illness of adjustment disorder” (T31). On 15 March 1999, Comcare determined not to accept that claim on the basis that the depressive condition had been increased due to non-compensable events, that the depressive condition was not then permanent, and that the applicant had not undergone all rehabilitative treatment. The applicant lodged a further claim and on 14 October 1999 Comcare denied liability for permanent impairment as a result of adjustment disorder on the basis that the applicant’s symptoms could be reduced by treatment (T43).
19. The applicant later made a further claim for permanent impairment, and as mentioned in paragraph 2 above, Comcare disallowed that further claim on 7 September 2000 on the grounds that the applicant had not undertaken reasonable rehabilitative treatment and did not have a 10% increase in her level of impairment (T58). This decision was affirmed by the reviewable decision made on 21 October 2002 on the grounds that the applicant had not undertaken all reasonable rehabilitative treatment for her psychiatric condition (T64).
20. Before the applicant was affected by her work injuries she enjoyed a very active lifestyle. She played A grade tennis, and played competitive tennis four days a week. She swam one to two kilometres every morning. She also played golf and netball until she injured her knee, and then she umpired netball. Her weight was 65 to 70 kilograms and she watched her diet carefully. She had a busy social life and was involved on the committees or as the president of various sporting clubs with which she was involved. At home she played the piano, read and looked after her own garden. She shared a house with two men who became friends. She did not gamble except for an occasional bet on the Melbourne Cup.
21. After her operations her lifestyle changed progressively and very significantly. She went back to swimming as part of a rehabilitation programme, but never recovered her previous strength and does not now swim. She has not played tennis since her operation except for one occasion when she tried to play with her six year old nephew, but had to stop after a short time because of the pain she experienced. Prior to her operations, and as her pain progressively increased, she found she had to give up more and more of her outside activities in order to get through her work.
22. The applicant sought assistance from a counsellor employed by her employer, and continued to see him privately after he was retrenched by her employer. She then sought treatment from a psychologist, Mr Luciano Gugleilman, and in 1994 he referred her to Dr Rose, who diagnosed her as suffering from acute depression.
23. In about 1995 she started to have difficulties with her supervisor at her place of employment. The nature of her work was changed, and her new duties aggravated her symptoms. She thought she was being treated unfairly. In April 1996 her supervisor suggested that she should accept voluntary redundancy and that she should work in David Jones as a shop assistant. The applicant found this extremely distressing; she said that she had worked very hard in her employment and she just wanted to be a scientist. Following this she had cognitive therapy at the Fullarton Therapy Centre. In July 1997 she was admitted to the Adelaide Clinic with suicidal ideation, as a result of further stress at work. She was later made redundant against her wishes in December 1998, and has not worked since.
24. The applicant said that by the time she was made redundant, she was “a real mess”. At about that time her two house companions left. Her mother and step-father then stayed with her for a time in 1999, and subsequently her cousin’s daughter from the country lived with her until December 2000. Since then she has, in the main, lived alone.
25. Dr Rose stopped treating the applicant in 1999. Comcare sought an assessment by another psychiatrist, Dr Marcia Fogarty, in August 1999, and subsequently Dr Fogarty became her treating psychiatrist. The applicant now sees Dr Fogarty weekly. Dr Fogarty has provided evidence of the large number of different anti-depressant drugs which she has prescribed for the applicant, and none of these have had any significant effect on the applicant’s depressive illness. Dr Fogarty said that the applicant was the most difficult patient she had ever had to treat for depression; usually depression was very treatable over time, but the applicant had not responded to any treatment. Both the applicant and Dr Fogarty said that many of the drugs prescribed produced side effects, and it appears that the applicant was unusually susceptible to the side effects of many of the drugs trialled.
26. Dr Fogarty gave detailed evidence of the applicant’s treatment and condition over the period of her treatment by Dr Fogarty. The T Documents include a copy of four reports from Dr Fogarty, as well as copies of reports from the applicant’s previous treating psychiatrist, Dr Rose, and of reports from various other doctors involved in her treatment or assessment over the years. We have carefully considered these reports, as well as all of the other evidence before us, including of course the reports and evidence of Dr Kalnins. We will discuss certain specific evidence given by the applicant and Doctors Fogarty and Kalnins below, in the context of the various criteria referred to in the Guide.
Consideration
27. In their evidence, both Dr Fogarty and Dr Kalnins observed that the concepts involved in the Guide were difficult to apply in assessing a psychiatric condition. Indeed, we note (as was pointed out by counsel for the respondent) that in her reports Dr Fogarty made varying assessments of the applicant’s permanent impairment, namely 25%, 30%, 15%, 30% and 20% (see T41, T49, T56, T62 and exhibit A2 respectively). We also note that Dr Kalnins assessed the degree of permanent impairment at 20% in his report dated 28 February 2003, and 10% in his report dated 28 March 2003 (exhibit R3).
28. Dr Kalnins and the respondent conceded that the first and third criteria in the 15%, 20% and 25% levels of impairment were satisfied, but disputed that the second criterion (i.e. marked disturbances in thinking), was satisfied, and also disputed that the applicant had “a need for some supervision and direction in activities of daily living”. Counsel for the respondent accordingly submitted that none of the above levels of impairment applied. He drew attention to the change in wording between the 10% level (i.e. despite the stated disabilities the claimant “is capable of performing activities of daily living without supervision or assistance” (emphasis added)) and the wording of the 15% to 25% levels, where one or more of the stated disabilities must be “accompanied by a need for some supervision and direction in activities of daily living” (emphasis added). In our opinion, the latter expression is more onerous, in that:
· the phrase “supervision and direction” is conjunctive and both elements must be present;
· the 10% level criterion can be satisfied by a capability to undertake the relevant activities, whereas the reference to “need” in the higher level indicates that there is a requirement for some supervision and direction; and
· the reference to “direction”, in our view, connotes some form of instruction, and a more intensive involvement than might be entailed in the concept of assistance.
29. The decision of the Tribunal in Re Emery and Comcare (1992) 15 AAR 477 contains a very helpful exposition of the manner in which the term ADL in the context of Table 5.1 should be interpreted and applied. The Tribunal’s decision in that matter was expressly approved on appeal by Spender J in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147, subject to one point of clarification to which we refer in paragraph 30 below. In its decision, the Tribunal referred to the varying references to ADL in the different levels of impairment in Table 5.1 of the Guide. After noting that the only matter to be resolved was whether the applicant had a need for some supervision and direction in ADL and that it was not in dispute that the specific criteria of the 25% level were satisfied, the Tribunal said at page 479:
“Set out below are the relevant provisions:
‘0% 5% 10% capable of performing ADL without supervision or assistance
15% 20% 25% a need for some supervision and direction in ADL
30% 40% a need for supervision and direction in ADL
50%60% need for supervision and direction in a confined environment [Note no mentions of ADL]
90%constant supervision and care in a confined environment and assistance with all aspects of ADL’.
[Emphasis and note added.]
Thus it is clear that with increasing levels of impairment there are not only increases in quantity of need but also qualitative changes in that need. The quantum of supervision varies “none” at levels 0-10 per cent inclusive, to “some” at levels 15-25 per cent inclusive, right up to constant at 90 per cent.
The Tribunal accepts that “some” means any amount at all, even the very minimum.
In respect of qualitative changes the Tribunal notes that “assistance” is not a factor to be considered but that “direction” is a factor to be considered along with supervision. It is also noted that the need for these elements is a measure of impairment and this is in no sense a measure of incapacity (see Principles of Assessment, p 3 of the Guide).”
Spender J on appeal indicated that the reference to “the very minimum” amount of supervision and direction in the above passage should not extend to matters which would be regarded as de minimis : 32 ALD at 150.9. We also note that at the 30% and 40% levels, the word “some” is omitted, and so the level of supervision and direction required to enable the claimant to carry out ADL is not qualified; at those levels there must be a requirement for whatever level of supervision and direction is required in order for the claimant to carry out the relevant activity of daily living.
30. The Tribunal in Re Emery and Comcare (supra) pointed out that the term ADL is frequently used by members of the caring professions and is often related to basic biological functioning, but the glossary definition of ADL in the Guide goes beyond the common usage of the term by defining ADL as a “measure of primary biological and psychosocial function”. The Tribunal rejected a submission that the activities listed in the second paragraph of the definition of ADL were matters which could be determined on the basis of “an all or none response”, and said that the activities described in the definition should not be limited to the basic mechanics of any bodily function, as this would not give proper weight to the psychosocial aspect of an activity. The Tribunal, at page 480, summarised the conclusions to be drawn from the reference to a need for some supervision and direction as follows:
“The first [conclusion] is that to find “some supervision and direction in ADL was needed” there is no requirement that all, or most, or any one of the particular functions listed in the glossary definition have been adversely affected. Another conclusion is that the term ADL is not limited to the basic mechanics of an activity but due weight must be given to the psychosocial aspect of the function, that is, the ability to stand may be impaired because one cannot stand straight, or stand still or stand around or even stand by without some supervision or direction”.
When the Tribunal’s decision was considered by Spender J on appeal, His Honour said at 151 that if the reference to “any one of the particular functions listed in the glossary definition” was meant to read “any particular one” was necessary to have been adversely affected, no complaint could be made regarding this passage.
31. For the sake of completeness, we also note that where it is not clear which of two impairment values is more appropriate, Comcare (or on review, this Tribunal) has the discretion to determine which value properly reflects the degree of impairment : Guide, page 4.7.
32. We will first consider the issue of whether the applicant has “a need for some” supervision and direction in activities of daily living, taking into account that the relevant measure is a measure of primary biological and psychosocial function, as stated in the definition of ADL in the glossary. Counsel for the respondent submitted that in her evidence before us, the applicant exaggerated the extent of her disabilities, and that she had no need for supervision and direction in activities of daily living. He referred, in particular, to the applicant’s participation in an IVF programme which commenced in 1996 and continued until the year 2000, as evidenced by the letters from Repromed which are included in exhibits R1 and R3. Further, the respondent submitted that the assessment by Dr Fogarty involved an acceptance by her of the symptoms which the applicant recounted, and that these symptoms may have been exaggerated or untrue. Counsel for the respondent also pointed out that the applicant did not inform Dr Fogarty on the occasion of her first assessment that she was participating in an IVF programme, and submitted further that we should not be satisfied as to the accuracy and reliability of the applicant’s evidence, and we should find that this was affected by motives of monetary gain and a desire for revenge against her supervisor at work. We reject these submissions. Dr Fogarty considered that there was objective evidence to support the severity of the applicant’s depressive illness, and she referred to such matters as the applicant’s weight gain and her use of medication over the period of her treatment of the applicant. Furthermore, the applicant’s presentation to the various psychiatrists from whom reports have been obtained over the years has been very consistent, and her evidence before us is also consistent with this presentation. We found the applicant to be a witness of truth, and accept her evidence in relation to the various activities referred to in the definition of ADL, which we will now consider.
Feeding (includes eating but not the preparation of food)
33. The applicant said that her current weight is slightly over 100 kilograms. Before she suffered her physical injury at work, her weight had been 65 to 70 kilograms and her dress size was size 12. In the last couple of years at work her weight went up to 80 kilograms, and after she left work it increased to the present level. Her dress size is now 20 to 22. The applicant said that her weight was of concern to her, because her father died at a young age of a heart attack, her brother has recently had treatment for heart palpitations, and she now gets out of breath after minimal exertion. She thinks that her medication caused her weight increase. She eats chocolate with her breakfast cereal and likes to drink flavoured milk, even though she knows these things are not good for her and she is worried about her weight. On occasions she binge eats. She says that she does not have any confidence and does not bother any more about the way she looks.
34. Before she ceased work the applicant was referred to a dietician who saw her over a period of about two to three months. She benefited from this and stuck to a diet for a while, but then encountered more difficulties at work and stopped seeing the dietician. She believes that she would benefit from seeing a dietician again, but does not know how to choose someone, and motivation is a problem for her. Dr Fogarty confirmed in her evidence that the applicant needs help with respect to her diet, but because of her disease was not able to properly ask for it (transcript 29.10.03, page 7.9), even though the applicant is well aware of the risks of her obesity due to her family history of heart disease. Dr Fogarty further said that she thought that it would helpful to the applicant to have a worker from Community Support Inc (“CSI”) visit the applicant for an hour a day to “get her going, get her motivated”, and that this could be useful in terms of improving her diet and improving the things she cooks for herself, in that CSI workers can assist in preparing meals, shopping and in helping people to organise day-to-day activities. Dr Fogarty further observed that the applicant had shown over the years that she tends to make more of an effort to look after herself and to do things if there is a level of encouragement from someone else, and Dr Fogarty said that she had used CSI workers quite effectively in other patients who had conditions such as chronic schizophrenia and who were not able to look after themselves. Dr Fogarty further explained that CSI was an organisation which operated pursuant to the Commonwealth Government’s home and community care programme to provide carers to people who had been assessed by an appropriate authority or medical expert as needing the assistance of carers in their ordinary daily living. She said that she had discussed obtaining a CSI carer for the applicant. However, Dr Fogarty said that the applicant is a very private person, and was not prepared to be assisted in this way, and Dr Fogarty had not pressed this proposal.
35. We find on the above evidence that the applicant does have a need for some supervision and direction with respect to feeding within the meaning of the definition of ADL in the Guide. In this regard, we note that in Emery (supra) Spender J approved of the Tribunal’s rejection of the submission of Comcare that:
“Feeding is not concerned with the question of managing diet or managing food intake, it is concerned with the process of actually getting food from the plate to the person.”
His Honour said that the Tribunal did not err in rejecting this “very narrow approach” put forward by the respondent: 32 ALD 147 at 151. Spender J further said that the evidence before the Tribunal “permitted the conclusion that some measure of direction and supervision was required in Mr Emery’s case in the management of his diet, because of his mental injury.” (32 ALD 147 at page 151).
Self Care (bathing, dressing etc)
36. The applicant said that she only has a shower once every couple of days and has gone as long as four days without having a shower, and not having a shower for two to three days would not be uncommon. She said that she changes her clothes, including her undergarments, when she has a shower. If she is not going anywhere or seeing anyone she sees no need to have a shower. She said that when she was working she used to swim in the morning, have a shower and change her clothes, and would do the same when playing sport. She said her mother keeps telling her to have her hair cut and will sometimes buy her a windcheater. Dr Fogarty said that the failure to wash or change her clothes was related to the applicant’s psychiatric condition and that she needed help in relation to those activities.
We find on the evidence before us that the applicant has a need for some supervision and direction in self care, including bathing and dressing.
Moving
37. The applicant gave evidence that she undertook aqua aerobics and Pilates exercises with a physiotherapist, Ms Kylie Brammy. She did this two or three times a week for about 18 months, but stopped this regime in 1999 because it got too hard and she ran out of motivation and her father got sick. She also undertook swimming with the assistance of an occupational therapist after her surgery, but once again stopped because she found this too hard to keep up, even though she knows that this form of exercise makes her feel better. Dr Fogarty considers that psychiatrically the applicant is not capable of managing an appropriate exercise regime. The applicant is now unable to drive except on short journeys to near-by suburbs, and is concerned about using public transport except on routes with which she is familiar. We find on the evidence before us that she has a need for some supervision and direction in relation to this activity.
Sexual Function
38. The applicant gave evidence that she suffers from a complete loss of sexual function. We accept this evidence, which was not contradicted. The reference in Table 5.1 to supervision and direction in relation to this activity is inappropriate. Dr Fogarty said in evidence that in her opinion, the applicant was beyond assistance in this connection, and so her level of functioning is even worse than that envisaged by the Guide. On this basis, this aspect of her disability should be taken into account : Re Langston and Comcare (2000) 64 ALD 449, paragraph 45.
39. The definition of ADL also refers to three other activities, namely the ability to receive and respond to incoming stimuli, standing and the control of bladder and bowel. We find that there is no evidence that the applicant is currently in need of some supervision and direction in relation to these three activities. However, a finding of a need for some supervision and direction in ADL, that is a need for any amount (not being de minimis) of supervision and direction in one or more of the specified ADLs, will satisfy the reference to this concept in levels 15, 20 and 25 of Table 5.1. We are satisfied on the evidence before us that the applicant has demonstrated a need for some supervision or assistance in the activities referred to in paragraphs 33 to 37 above. She accordingly meets the ADL aspect of the criteria in assessment levels 15%, 20% and 25%.
40. The 15%, 20% and 25% levels of impairment under Table 5.1 involve a consideration of the following:
·reactions to stressors of daily living which cause modification of daily living patterns;
·marked disturbances in thinking;
·definite disturbances in behaviour.
The question of which of these three levels of impairment apply will depend on whether one, two or all three of the criteria apply to the applicant. We will now consider each of these criterion in turn.
Reactions to Stressors of Daily Living which cause Modification of Daily Living Patterns
41. We have described earlier in these reasons a number of very significant changes to the daily living patterns of the applicant, and we refer in this regard to the facts that the applicant has stopped playing tennis and swimming every morning, her eating habits and her abandonment of other activities such as her committee work and piano playing. In addition, her diet is totally unsuitable and she engages in binge eating. We note that the respondent conceded that this criteria was satisfied, and we find accordingly.
Marked Disturbances in Thinking
42. This concept, which appears in the 15%, 20% and 25% levels of impairment should be compared with the concept of “minor distortions of thinking” referred to in the 5% and 10% levels, and with the concept of “severe disturbances of thinking and/or behaviour …” reference in the 50% level and 60% levels, and the concept of “very severe disturbances in all aspects of thinking and behaviour …” in the 90% level. These changes in the wording of the criteria in relation to thinking as the levels of impairment increase are of assistance in interpreting the criterion which we are now considering, being the criterion applicable to the 15%, 20% and 25% levels of impairment.
43. The applicant gave evidence that she has difficulty in reading the newspaper, because she does not concentrate and has to go back over what she has read. Further, the last time she tried to read a book was in about 1995 or 1996 as part of her cognitive therapy course, and she only managed to read the first three or four chapters of that book. She said that when she was at work she had been reasonably adept at using a computer and in February 2003 she tried to do a computer course but has not finished it. She got to the point of having to do an assignment but could not do so. She said she did not know “how to make her brain concentrate”. The applicant also gave evidence that she did not pay regular bills on time, and often did not pay until she received reminder notices or until outstanding bills had been put in the hands of debt collectors. She also said that she had trouble looking at information and making a choice, and gave as an example of this the fact that she has not insured her house, although she had picked up a leaflet from her bank with some information about this. She did not pursue the matter because she found she could not choose what amount to insure the house and contents for, and realised that there would be difficulties if she was over-insured or under-insured. Further, she said that she had not lodged a tax return for a number of years, even though she knew she should do so.
44. Dr Fogarty considered that the applicant’s thinking disturbance is more severe than minor. She said that the applicant had described to her an overall paucity of thought, where the breadth of her thinking was reduced because she was constantly ruminating, stuck in her thinking about what had happened, her illness and her forced redundancy from work. She said the applicant “finds it difficult to shift her thinking and concentrate on other matters. As a result she is able to achieve very little and enjoy very little” (exhibit A2). In addition, Dr Fogarty considers that the applicant does not reach the logical conclusions that one should normally come to in a series of thoughts; she tends to come to illogical fixed conclusions. She also thought that the applicant’s suicidal ideations indicated much more marked disturbances of thinking.
45. Dr Kalnins considered that the applicant’s preoccupation with employment issues almost to the exclusion of everything else involved an over-valued idea and that this was not necessarily a thought disorder as such (transcript 30.10.03, page 63.3). Dr Kalnins further considered that other matters relied upon in this context by the applicant amounted to a behavioural reaction. Although conceding that her difficulty with the computer course would indicate some disturbance of thinking, he said he could not say that this would be a marked disturbance of thinking without knowing more about the computer course. He also said in this connection that it was a little difficult making logical sense of the Guide at all in respect of psychiatric illnesses (transcript 30.10.03, page 63.8), and that the application of the Guide to the matters relied upon by the applicant involved a question of interpreting the wording of the Guide to determine whether they constituted a marked disturbance in the thinking (transcript 30.10.03, page 66.2). He said further that to him this criterion would involve paranoid thoughts or ideas of reference, and he gave some examples, including that of an individual doing a computer course and thinking that the person running the course was some how feeding the person concerned information through the computer.
46. In comparing the views of Doctors Fogarty and Kalnins, we observe that Dr Fogarty has had very extensive contact with the applicant, as her treating psychiatrist, over a long period; and we think that she is therefore in a better position to assess the applicant’s condition, including in particular the effect of her illness on her thinking. The degree of disturbance of thinking which Dr Kalnins would require in order for this criterion to be satisfied appears to us to exceed what should be properly regarded as a marked disturbance of thinking within the meaning of the relevant criterion. In our view the matters referred to by Dr Fogarty clearly exceed the lower criteria of minor distortions of thinking, and we consider that this supports Dr Fogarty’s categorisation of this aspect of the applicant’s disability. It may well be that the relevant matters can also be described as behavioural problems or evidence of a lack of motivation in consequence of the psychiatric illness, but in our opinion they also constitute disturbances of thinking, and should properly be regarded as marked disturbances. We prefer Dr Fogarty’s interpretation and assessment in relation to this issue, and find that this criterion is satisfied.
Definite Disturbances in Behaviour
47. The applicant gave evidence that when she was still working she would go to the Casino and gamble at night as some sort of reward for putting up with the difficulties she had at work, and would use this as a blocking strategy to take her mind off her problems. She said that she did not gamble before her injury. She said that she gambled from 1995 onwards, and it appears from a report provided by Professor Goldney dated 3 September 1999 (exhibit R2) that the extent of her gambling habit at that time was about $20,000 per year. Whilst the applicant did not admit that the extent of her gambling problem entailed losses of this order, her gambling habit or addiction constitutes further evidence of definite disturbances in behaviour.
48. The respondent also conceded that this criterion is satisfied, and we find accordingly, taking into account not only to her gambling, but also the other matters to which we have already referred, including her binge eating, her inappropriate diet, her lack of attention to personal hygiene and her failure to attend to her financial affairs appropriately.
49. For all of the above reasons, we find that the applicant satisfies the 25% level of impairment in the Guide.
30% Level in Table 5.1
50. Counsel for the applicant contended that the applicant meets this higher level of impairment.
51. Although in 1997 and 1998 the applicant was admitted to hospital for short periods, we consider that it is not now appropriate to describe her as a “hospital dischargee”, so that the first criterion in level 30 is not satisfied. We further consider that the second criterion, namely “loss of self control and/or inability to learn from experience causing considerable damage to self or community”, is not satisfied either. There is evidence that the applicant has a loss of self control and/or an inability to learn from experience, in that she binge eats and does not manage her diet properly, and also has difficulties arising from her gambling, and these matters have the potential to damage the applicant’s health and financial position. However, we are not satisfied that the evidence before us establishes that these matters are causing “considerable damage” to the applicant. Clearly, she is in a very difficult situation as a result of her psychiatric illness, but many of her difficulties could not, in our view, be described as resulting from loss of self control or inability to learn from experience; rather, they are the result of her illness. Further, there is no evidence that those problems which are due to a loss of self control or inability to learn from experience cause any damage to the community. It is also necessary under the 30% level of Table 5.1 for one of the relevant criteria to be accompanied by a need for supervision and direction in ADL. That is a potentially higher level of supervision and direction in ADL than the level of supervision and direction required under the 15% to 25% levels, where the requirement is for “some” supervision and direction in ADL. Dr Fogarty considered that the “ideal scenario” for the applicant would be a longer term admission to a “private hospital or clinic, so that she would have access to virtually daily interpersonal support of psychotherapy, proper meals and would be unable to binge eat and her daily care needs would be supervised and she would be encouraged through inter-active groups” (transcript 29.10.03, page 10.8). However, as we understand it, this would constitute specific treatment for a discreet period, and on the evidence before us we do not think that the applicant’s need meets the higher requirement of the 30% level.
52. For all of the above reasons, we consider that the best fit in Table 5.1 is the 25% level, and that the applicant is entitled to be paid compensation for permanent impairment on this basis.
53. It was accepted by both parties that if our assessment is greater than 10%, there is no basis for the respondent’s submission that the incapacity must be combined with the earlier assessment of incapacity under the combined values charts in the Guide, so that the resultant increase in impairment would be less than 10%. There is therefore no need for us to deal with the legal issues raised by this submission.
Determination
54. For the above reasons we set aside the decision under review and in substitution therefor decide that the applicant has a permanent impairment in respect of her psychiatric conditions of 25%. We reserve liberty to apply within 14 days in relation to the costs of the proceedings, and order that in the absence of any such application, the respondent pay the costs of the proceedings.
I certify that the 54 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President Jarvis and Dr Eriksen, MemberSigned: .....................................................................................
N Quirke AssociateDates of Hearing 29 and 30 October 2003
Date of Decision 29 March 2004
Counsel for the Applicant Mr M Roder
Solicitor for the Applicant Lempriere Abbott and McLeod
Counsel for the Respondent Mr A Possingham
Solicitor for the Respondent Australian Government Solicitor
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