Riley and Comcare
[2011] AATA 674
•29 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 674
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2297
GENERAL ADMINISTRATIVE DIVISION ) Re JEFFREY RILEY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr M E C Thorpe, MemberDate29 September 2011
PlaceSydney
Decision The decision under review is set aside and instead the Tribunal decides that Mr Riley has permanent impairments resulting from his depressive disorder and schizoaffective disorder and from his sexual dysfunction and has a combined degree of permanent impairment of 28%.
...................[sgd]...........................
Ms N Bell
Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – claim for permanent impairment – major depressive disorder, schizoaffective disorder and sexual dysfunction – whether impairments result from applicant’s work injuries – assessment of permanent impairment – assessment of permanent impairment of sexual function arising from psychological injury and medication – decision under review set aside
Legislative Instruments Act 2003 (Cth) s 14
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 28
Canute v Comcare (2006) 226 CLR 535; [2006] HCA 47
Comcare v Broadhurst (2011) 192 FCR 497; [2011] FCAFC 39
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28; [2009] HCA 38
REASONS FOR DECISION
29 September 2011 Ms N Bell, Senior Member
Dr M E C Thorpe, Member1. Jeffrey Riley was employed by the Department of Defence at HMAS Albatross as a purchasing officer. In October 2006 Mr Riley claimed compensation for permanent impairment in respect of major depressive disorder, schizoaffective disorder and sexual dysfunction. Comcare denied the claim.
2. Mr Riley’s claim has a long history.
3. In 1996 Mr Riley made a claim for a psychiatric injury, a depressive disorder, for which liability was accepted by Comcare. Mr Riley returned to work after ten months. In 1999 he was hospitalised for 40 days for surgery for diverticulitis and, after his surgery, returned to work again. In May 2001, Mr Riley injured his right shoulder at work. His claim for this injury was accepted by Comcare. In July 2003 Comcare also accepted liability for reflex sympathetic dystrophy in respect of Mr Riley’s right shoulder. In February 2005 Comcare accepted liability for major depressive disorder, schizoaffective disorder and chronic pain disorder secondary to Mr Riley’s right shoulder injury. In May 2005, by consent order in this Tribunal, Mr Riley was awarded compensation for a 30% whole person impairment of his right shoulder. Comcare’s denial of liability for Mr Riley’s October 2006 claim for permanent impairment in respect of major depressive disorder, schizoaffective disorder and sexual dysfunction is now the subject of this application for review.
4. Comcare contends that any psychiatric and sexual function permanent impairments suffered by Mr Riley are either due to an underlying psychiatric condition (including the condition for which it accepted liability in 1996) or due to a new and distinct psychiatric condition – personality disorder – which is unrelated to his 2001 shoulder injury. This is so notwithstanding that in 2005 it accepted liability for a depression secondary to his right shoulder injury. Further, Comcare contended that Mr Riley does not suffer from sexual dysfunction at all.
5. In addition, Comcare contends that, even if Mr Riley does have psychiatric and sexual dysfunction permanent impairments, he is limited, under the terms of the Guide to the Assessment of the Degree of Permanent Impairment, Second Edition, to an assessment of 10%. Mr Riley contends that he is entitled to compensation for permanent impairment for each of his claimed impairments – 20% for his psychiatric injury under table 5.1 and 20% for his sexual dysfunction under table 11.1.1 (no sexual function possible).
6. The issues to be considered by us in respect of causation are:
(a)Does Mr Riley suffer from permanent psychiatric and sexual function impairments?
(b)If so, do these impairments result from his work injuries?
7. If we find that Mr Riley suffers from impairments as claimed, then, in respect of assessment, the issues are:
(a)What is the degree of Mr Riley’s psychiatric impairment?
(b)Can a permanent impairment of sexual function arising from psychological injury and medication be assessed under the Guide to the Assessment of the Degree of Permanent Impairment?
(c)If not, does the Guide impermissibly exclude Mr Riley from compensability and is it thereby invalid?
(d)What is the combined degree, if any, of Mr Riley’s permanent impairment?
Causation
does mr riley suffer from permanent psychiatric and sexual dysfunction impairments?
8. Mr Riley told the Tribunal that in 1995 he was accused of having dishonestly obtained admission to a training course some years earlier. There was an inquiry into the allegation and he was vindicated but the episode upset and stressed him deeply and he went off work for ten months over which time he was paid compensation. He returned to work, functioning normally, and obtained some additional qualifications. In 1999 he had surgery for diverticulitis, a very painful condition. On discharge from hospital he was given two bottles of methadone in tablet form. He consumed only one of the bottles and took no more pain medication after that. He returned to work and again functioned normally until his shoulder injury in 2001. The effects of his shoulder injury persisted and he was in constant pain. After two surgeries in 2002, he was discharged from hospital with a prescription for opiates as pain relief medication. He said he became depressed and suffered sexual dysfunction as a side effect of his depression and the opiates and his depression was compounded.
9. He was admitted to Lawrence Hargrave Hospital for pain management in 2003 and came under the care of Dr Bashford. Dr Bashford has administered a range of pain relief measures including nerve blocks, various medication, and medication rotation.
10. Mr Riley said that he first noticed sexual dysfunction when he was discharged from the Hospital in 2002. He said he had no interest in sex, could not get an erection, was in a “foul” mood all of the time, could not concentrate and was arguing with his wife. He described it as a “terrible time”. He said he has not had an erection ever since he has been on morphine, that is, since 2002. We note that Mr Riley was hospitalised in 2002 for shoulder surgery and in 2003 in relation to pain management. He also stated that he started on morphine 18 months after the accident. Later, he said that his erections did not “stop overnight” but that there was a gradual decline until he found a complete inability. He still dated this inability to 2002. It is difficult to determine whether Mr Riley’s sexual dysfunction commenced in 2002 after his shoulder surgeries or his pain management hospitalisation in 2003. What is clear from his evidence is, however, his sexual dysfunction flowed from his commencement on morphine which he dates as approximately 18 months after the accident.
11. Mr Riley relies on the reports and evidence of Dr Irwin Pakula, psychiatrist, as support for the contention that he suffers from depressive disorder, schizoaffective disorder and sexual dysfunction. Dr Pakula has been Mr Riley’s treating psychiatrist since 2003. His evidence to the Tribunal was that he first saw Mr Riley in 2003 while he was admitted to Lawrence Hargrave Hospital and under the care of pain specialists with respect to shoulder pain. Dr Pakula said he formed the view that Mr Riley had a depressive illness. He said Mr Riley’s depression has not fully subsided and that is mainly due to the continuing shoulder pain he suffers. He said Mr Riley also suffers from a lack of interest in sex, an inability to get an erection, an inability to ejaculate and has not had sexual relations for a number of years. Dr Pakula said he continues to see Mr Riley and that he is on the antidepressant Zyprexa as well as pain medications. Dr Pakula provides him with counselling.
12. Dr Pakula said the combination of Zyprexa and pain medications, including morphine, and Mr Riley’s depressive state, all of which reduce both desire and the ability to have an erection, are the cause of Mr Riley’s sexual dysfunction.
13. Dr Pakula rejected the suggestion that Mr Riley suffers from a congenital predisposition or personality disorder which would lead him to being depressed. Rather, he considered that his depressive disorder is caused by his pain from his shoulder injury and the accepted psychiatric sequela of that injury. He said that schizoaffective disorder, which he had ultimately diagnosed, is not a personality disorder but rather it is a continuum of a very severe depressive disorder whereby a person becomes paranoid, suspicious of others, angry, aggressive and illogical. He said it was more in the realm of a psychosis and not a personality disorder, although there might be some manifestations of schizoaffective disorder that resemble some of the symptoms or signs of a personality disorder, including paranoia, anger and frustration. He said the two disorders are, however, “worlds apart”.
14. Dr Pakula agreed that when he first took a history from Mr Riley in 2003, when he was in hospital in relation to his shoulder injury, he formed a provisional diagnosis of “personality traits/disorder”. He also agreed that Mr Riley did not give a history of a prior depressive illness in 1996. However, Dr Pakula did not consider the condition suffered by Mr Riley in 1996 to have been a psychiatric condition within the framework of DSM-IV. Rather, he considered it to have been an episode of work related stress following a dispute at work and for which he took stress leave. On that basis, he considered that Mr Riley has not suffered an aggravation of a pre-existing psychiatric condition.
15. Dr Pakula said he was aware that Mr Riley had had a problem with alcohol prior to his shoulder injury but was not aware that he had been warned in 1996, by his then psychiatrist Dr Jenkings, about benzodiazepine dependency. However, he considered both the prescription of benzodiazepine and an accompanying warning about the potential for dependency to be commonplace.
16. Dr Pakula was concerned, in his treatment of Mr Riley, about his opiate dependence, but disagreed when it was put to him that Mr Riley had been opiate dependent since 1999. Dr Pakula noted that Mr Riley had been hospitalised for 40 days in 1999 for a bowel resection following diverticulitis and had been given opiates for pain at that time. He was sent home with a short supply of opiates but ceased to take them soon after. Dr Pakula distinguished between opiate dependence and opiate medication for major surgery.
17. Dr Pakula agreed that there was some inconsistency about the length of time Mr Riley had experienced sexual dysfunction and about whether he had “difficulty” with sexual function or a complete inability. He was not aware of Mr Riley ever being referred to a urologist in respect of his sexual dysfunction, but, given the medication Mr Riley was on and given his depression, a physical cause would not be expected.
18. Dr Pakula said that Dr Bashford, pain specialist, had been attempting by various means to reduce the amount of Mr Riley’s pain medication and his opiate dependency.
19. Associate Professor Kaplan, forensic psychiatrist, examined Mr Riley in 2004 and formed the view that he suffered abnormal illness behaviour and narcotic and benzodiazepine addiction, otherwise described as pain disorder and polysubstance dependence. When he reviewed his opinion in 2010 he concluded that “Mr Riley does not have an injury from the subject accident in 2001. He has a significant pre-injury history, including depression and substance abuse, and malingering cannot be excluded.” He noted, from documents, that Mr Riley had been treated for anxiety and depression in 1996 and 2002 and referred to Dr Pakula in 2003 who had made a diagnosis of a schizoaffective disorder in 2004. He noted Mr Riley had had problems in his childhood and with his family and said that would give him a predisposition to psychiatric problems.
20. AP Kaplan did not accept that Mr Riley is depressed. However, he noted that he did not have Mr Riley before him currently for examination and so this could not be confirmed. He considered that Mr Riley’s pain is exaggerated and inconsistent. He said the fact of two surgeries on his shoulder does not impact on his assessment of Mr Riley’s pain.
21. When cross examined about his diagnosis of pain disorder, he said he reached that view because Mr Riley complained of widespread pain. However, he maintained that even if Mr Riley complained only of shoulder pain he would still diagnose pain disorder. We found this a confusing and unpersuasive opinion.
22. AP Kaplan agreed that if, in fact, Mr Riley had only been prescribed and used opiates in connection with his bowel surgery in 1999 and had not continued with their use then he would abandon his diagnosis of opiate dependence since 1999.
23. AP Kaplan said in his report of 2004 that “there are a series of reports expressing concern at his use of high doses of analgesics and sedatives and recommending that this problem be dealt with before any recovery could be expected. Despite admonition from his doctors, he ‘tends to slip easily’ and use more benzodiazepines and narcotics, but will not specify how he obtains these.” However, AP Kaplan was not able to identify the source of this statement or the reports to which he was referring.
24. Finally, when AP Kaplan was asked to assume the facts in accordance with Mr Riley’s evidence – that prior to his shoulder injury there was no opiate abuse and no depressive illness – he agreed that Mr Riley’s depression would have been significantly contributed to by his shoulder pain.
25. Dr Akkerman, psychiatrist, examined Mr Riley twice and diagnosed opiate abuse, benzodiazepine abuse and personality disorder not otherwise specified. He based his diagnosis of abuse on his opinion that when Mr Riley saw him on both occasions he was intoxicated. He said his opinion about personality disorder is an assumption based on the degree and length of time he has been affected by substances. He said that in his experience people who develop severe substance abuse very often have an underlying personality disorder.
26. Dr Akkerman accepted that Mr Riley is depressed but considered that his depression is an effect of the substances he takes. He also agreed that, in a person not affected by substances, pain can cause depression.
27. Both AP Kaplan and Dr Akkerman considered that Mr Riley was likely to have had a substance dependence since 1999. They each based this view on a passage in a report dated 30 September 2009 by Dr Bashford, Mr Riley’s pain management specialist, which said:
“Apparently, almost ten years ago, he was on Methadone and within six months had become rapidly tolerant”.
28. On 21 December 2010 Dr Bashford wrote to Mr Riley’s solicitors and said:
“I have gone through my notes to see who gave me the information that he had been on Methadone in previous decades and that he had become tolerant to it. I was unable to find any documentation regarding this in my notes. I will also go through my Port Kembla notes to see if there may be some evidence in my notes there.”
29. No further information was produced by either of the parties on this question.
30. Comcare made much of Dr Pakula not having mentioned in his reports Mr Riley’s stress claim in 1995/1996. In particular, it was urged on us that we should dismiss Dr Pakula’s diagnosis on this basis. We reject that submission. Dr Pakula held firm to his diagnosis of depressive disorder, schizoaffective disorder and sexual dysfunction in full knowledge of Mr Riley’s earlier stress claim. He considered that the condition, if any, suffered by Mr Riley in 1995/1996 was qualitatively different and distinct from the condition he diagnosed in later years. We do not find his diagnosis invalidated on that basis.
31. Overall, we prefer the opinion of Dr Pakula to those of AP Kaplan and Dr Akkerman. Dr Pakula has treated Mr Riley since 2003. He has had ample opportunity to clarify and test any important inconsistencies in the history given to him by Mr Riley. He has observed Mr Riley and has, according to his evidence, been in communication with Mr Riley’s pain management team.
32. AP Kaplan and Dr Akkerman, on the other hand, have examined Mr Riley on only one or two occasions. We note in particular, that AP Kaplan saw Mr Riley not for treatment purposes or for the purpose of ascertaining causation or aetiology, but for assessing his rehabilitation prospects. Both AP Kaplan and Dr Akkerman appear to have leapt to conclusions about opiate and other abuse prior to 2001 on the basis of one line in a report by Dr Bashford which that doctor is now unable to explain. Dr Akkerman bases his diagnosis of personality disorder on his view that most people with opiate dependence have an underlying personality disorder. Dr Akkerman was certain that Mr Riley was intoxicated when he attended him but did not sight the details or prescriptions for Mr Riley’s medication. Dr Kaplan appeared to deny that Mr Riley’s shoulder injury could produce pain that required pain relief medication, notwithstanding the two surgeries he had on his shoulder.
33. We are also mindful of a report by Dr Peter Jenkings, psychiatrist, dated 11 June 1996 in which he mentions “long term personality problems” in Mr Riley’s developmental years. We do not consider this is sufficient ground on which to make a diagnosis of personality disorder.
34. Comcare contended that inconsistencies in the statements made by Mr Riley in his claim form and in the histories he gave to medical practitioners cast doubt on whether he in fact suffers from sexual dysfunction. In particular, Comcare submitted that Mr Riley had stated variously that his sexual dysfunction had commenced in 2007 (history given to Dr Pakula) and 2003 (statement made on his claim form). In 2006, Mr Riley wrote that he had “difficulty” with sexual intercourse and masturbation, as opposed to an inability to achieve it. Also in 2006 Mr Riley stated on his claim form that he has no sexual function. We do not set much store by these inconsistencies in a man affected by both severe pain and high doses of pain medication, including opiates. We accept Mr Riley’s evidence that he has for a long time, and probably since about 2003, suffered sexual dysfunction.
35. We conclude on the basis of all of the medical evidence and Mr Riley’s evidence that he suffers from depressive disorder, schizoaffective disorder and sexual dysfunction. The evidence does not permit anything but a conclusion that these conditions result in “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” (s 4 SRC Act). Therefore Mr Riley suffers impairments within the meaning of the Act. There is no evidence to suggest that the impairments are not likely to continue indefinitely, notwithstanding the continuing attempts of Dr Bashford to deal with Mr Riley’s current opiate dependence. We note that those attempts have been underway for more than seven years. We also note Dr Bashford’s opinion, stated in his report of 21 December 2010, that all that is currently hoped for by those treating Mr Riley is a “holding pattern” and no great improvement in his pain and its related impairments is expected.
do mr riley’s impairments result from work injuries?
36. Much was made by Comcare of Mr Riley’s psychological condition in 1995/1996, his alleged opiate dependence or abuse prior to his 2001 shoulder injury and an alleged underlying personality disorder.
37. As to the last two, we have already concluded that we are not persuaded by the opinions of AP Kaplan and Dr Akkerman that Mr Riley has a personality disorder and was abusing opiates immediately after his surgery in 1999. We consider their opinions are based on assumptions and the somewhat “throw away” line in Dr Bashford’s 2009 report about rapid tolerance that Dr Bashford is now unable to explain.
38. As for Mr Riley’s 1995/1996 psychological injury, we are mindful that it was in response to an allegation of impropriety at work for which he was later vindicated. We are also mindful that it was accompanied by alcohol abuse (Mr Riley’s evidence) and that Dr Jenkings described him, in his 11 June 1996 report, as “suffering from an adjustment or crisis reaction with anxiety and agitation plus … significant alcohol abuse related to work stressors since September of last year including perceived ‘harassment’.”
39. We note the opinion of Dr Pakula that Mr Riley’s 1995/1996 condition was a stress condition and quite distinct from the conditions he now suffers. We do not consider that it operates to interrupt the path of causation from the 2001 shoulder injury to pain to depression and use of and possible dependence on pain medication to sexual dysfunction and finally to entrenched depression and schizoaffective disorder. It is possible that the 1995/1996 conditions provided a background conducive to the development of his present impairments, but there has been no contention that his earlier condition was not work related and so, to the extent it has contributed, it does not derogate from a conclusion that Mr Riley’s current impairments arise from his employment.
40. In any event, we are satisfied that Mr Riley’s psychiatric and sexual function impairments result from his 2001 shoulder injury.
assessment
What is the degree of Mr Riley’s psychiatric impairment?
41. As to Mr Riley’s depression and schizoaffective disorder, we note the terms of Table 5.1 in the Guide, concerning “psychiatric 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 0 Reactions to stressors of daily living WITHOUT loss of personal or social efficiency AND capable of performing activities of daily living without supervision or assistance. 5 Despite 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
10 Despite 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
15 ANY 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 behaviour
20 ANY 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
…
42. The term “activities of daily living” referred to in table 5.1 is defined in Chapter 5 as:
Figure 5-A: Activities of Daily Living
Activity Examples Self care, personal hygiene. Bathing, grooming, dressing, eating, eliminating. Communication. Hearing, speaking, reading, writing, using keyboard. Physical activity. Standing, sitting, reclining, walking, stooping, squatting, kneeling, reaching, bending, twisting, leaning, carrying, lifting, pulling, pushing, climbing, exercising. Sensory function. Tactile feeling. Hand functions. Grasping, holding, pinching, percussive movements, sensory discrimination. Travel. Driving or travelling as a passenger. Sexual function. Participating in desired sexual activity. Sleep. Having a restful sleep pattern. Social and recreational. Participating in individual or group activities, sports activities, hobbies. 43. Although Dr Pakula assessed a 20% impairment under this table, we note that from 15% and above there is a requirement that any of the listed descriptors be accompanied by a need for supervision. There was no evidence that Mr Riley had any such need. On this basis, Mr Riley should be assessed as having a 10% impairment in respect of his depression and schizoaffective disorder.
Can a permanent impairment of sexual function arising from psychological injury and medication be assessed under the Guide?
44. As to Mr Riley’s other impairment, sexual dysfunction, the situation is less straightforward.
45. Table 11.1 is the only table in the Guide that provides exclusively for sexual dysfunction. The table is headed “The Male Reproductive System”. The introduction to the table provides that the table is intended for use only to assess impairment resulting from neurological impairment or local lesions of, among other parts of the reproductive organs, the penis. The introduction specifically provides that impairment of sexual function for any other reason, including pain or depression, is not to be assessed under Table 11.1.1.
11.1 Male Reproductive System
WPI ratings from Tables 11.1.1, 11.1.2, 11.1.3, and 11.1.4 may be combined, provided the total WPI rating for all conditions affecting ability to father children does not exceed 20%.
The WPI ratings in Tables 11.1.1, 11.1.2, 11.1.3 and 11.1.4 are applicable to 40–65 year old men.
Where the employee is outside this age group, the following calculation should be made:
· for men 39 years of age or younger, the combined WPI rating (from Tables 11.1.1, 11.1.2, 11.1.3 and 11.1.4) is increased by 50%;
· men 66 years of age or older, the combined WPI rating (from Tables 11.1.1, 11.1.2, 11.1.3 and 11.1.4) is decreased by 50%.
For example, a 29 year old man with a combined maximum WPI of 20% of the male reproductive system would be rated as suffering a 30% WPI: 20% WPI + (0.5 x 20%WPI) = 30% WPI.
Tables 11.1.1, 11.1.2, 11.1.3, and 11.1.4 are not to be used with respect to sexual dysfunction arising as a result of neurological impairments rather than local reproductive pathology. Where sexual dysfunction is the result of spinal cord injury, use Table 9.6.1: Spinal Nerve Root Impairment Affecting the Lower Extremity (see page 82, Chapter 9 – The Musculoskeletal System). Where sexual dysfunction is the result of neurological disorder other than spinal nerve root impairment, use Table 12.9: Neurological Impairment Affecting Sexual Function (see page 146, Chapter 12 – The Neurological System).
Tables 11.1.1, 11.1.2, 11.1.3, and 11.1.4 are intended for use only to assess impairment resulting from neurological impairment, or local lesions of:· penis;
· scrotum;
· testes;
· epididymes;
· spermatic cords;
· prostate and/or seminal vesicles.
These tables can be used to assess impairment where obstruction of the vascular supply of the penis and other male organs occurs.
These tables are not intended for use where sexual function is impaired for any other reason (for example, pain or depression).
11.1.1 Male Reproductive Organs – Penis
Table 11.1.1: Male Reproductive Organs – Penis
% WPI Criteria 0 Occasional interference with sexual function. 10 Sexual function possible but always with a degree of difficulty with erection, ejaculation and/or sensation. 15 Sexual function possible in that there is sufficient erection but sensation and/or ejaculation is absent. 20 No sexual function is possible. 46. Mr Riley’s total loss of sexual function, as diagnosed by Dr Pakula, is the result of a combination of his medication for his psychiatric condition and for pain from his shoulder injury and his depression. Dr Pakula described it in his report of 2 November 2010:
“The reason for the lack of sexual activity relates to the ongoing depression and the associated symptoms of his depressive disorder and schizoaffective disorder as well as the use of the medications which are required to control his psychotic symptoms, his depressive symptoms and his pain.”
47. Comcare drew our attention to table 5.1 concerning psychiatric impairments and under which a limitation on “participating in desired sexual activity” can be assessed as a limitation of “an activity of daily living” as defined in figure 5-A, set out above. Comcare submitted that Mr Riley’s sexual dysfunction should be assessed under this table and as “part of” his psychiatric impairment. Table 5.1 provides a partial method of assessment for Mr Riley’s sexual dysfunction, but only as a feature of his psychiatric impairment as an “activity of daily living”. We are mindful that his sexual dysfunction is total. None of the various descriptions of Level of Impairment in table 5.1 include total loss of function in this or any other “activity of daily living”. In addition, all descriptions of Level of Impairment in table 5.1 combine the notion of activities of daily living with a requirement for “supervision or direction”. In Mr Riley’s context, supervision or direction is irrelevant to the impairment of total sexual dysfunction.
48. There is no method, within the Guide, by which Mr Riley’s sexual dysfunction, as a separate injury and a separate impairment, can be assessed. In accordance with the Principles of Assessment in the Guide it is therefore necessary to attempt assessment under the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the time of the assessment (Clause 12). The Full Federal Court in Comcare v Broadhurst (2011) 192 FCR 497; [2011] FCAFC 39, held that it is not within power for a legislative instrument to “make provision … applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time” (s 14(2) Legislative Instruments Act 2003) and found the reference in the Principles of Assessment in the 2nd Edition of the Guide to “the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the time of the assessment” to be a reference to the AMA Guide current at the time the Comcare Guide was approved, that is, the 5th edition of the AMA Guide.
49. When we turn to the 5th edition of the AMA Guide, we find that the only table in that Guide that provides exclusively for sexual dysfunction is table 7-5 which concerns “Permanent Impairment Due to Penile Disease”. The word “disease” is not defined in the 5th edition of the AMA Guide, but on its plain meaning it is clear that Mr Riley’s total sexual dysfunction is not “penile disease”. The 5th edition of the AMA Guide does not provide a method of assessment of Mr Riley’s separate impairment of total sexual dysfunction.
does the guide impermissibly exclude mr riley from compensability?
50. Mr Riley referred us to the High Court’s judgment in Canute v Comcare (2006) 226 CLR 535; [2006] HCA 47 in which it was held that each separate injury suffered by an applicant, even where it is a sequela of another, requires a separate assessment of degree of impairment. In the present case, it was argued, the tables conflate Mr Riley’s depression/schizoaffective disorder and his sexual dysfunction – separate injuries – into one injury and one impairment.
51. In Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28; [2009] HCA 38, the High Court said:
“19. In Canute, this Court pointed out that the definition of “impairment” in the SRC Act is not expressed in terms that require assessing impairment on a ‘whole person’ basis. Rather, the definition is expressed in terms conveying a disaggregated sense. As the Court said in Canute, ‘[t]extually, the Act assumes that ‘an injury’ may result in more than one ‘impairment’’. Likewise, it must follow that more than one injury may result (and often will result) in more than one impairment.”
52. Mr Riley’s 2001 shoulder injury has resulted in an impairment to his shoulder, for which he was previously assessed and compensated at 30% “whole person impairment” and two further injuries: a depressive disorder/schizoaffective disorder and sexual dysfunction. These are separate injuries and separate impairments result from them, affecting separate body parts or body systems. On this basis, Mr Riley submits that the Guide seeks, by the construction of tables 5.1 and 11.1.1, to conflate his separate injuries and impairments in a manner held by the High Court in Canute to be impermissible. By this impermissible aggregation the Guide provides no method by which Mr Riley’s total loss of sexual function can be assessed and produces, in effect, an assessment of “nil”. In this way it precludes compensation for Mr Riley’s impairment and exceeds the role delegated to it by section 28 of the SRC Act to set out criteria and methods by which the degree of the permanent impairment of an employee resulting from an injury shall be determined.
53. We agree that, to the extent that it does so, the Guide is invalid.
What is the combined degree of Mr Riley’s permanent impairment?
54. Notwithstanding this invalidity, we are still obliged to assess Mr Riley’s degree of impairment. We consider that the approach least disruptive to the operation of the Guide is, as submitted by Mr Riley, to consider as invalid the instructions for table 11.1.1 that limit compensability to impairment resulting from neurological impairment or local lesions of the penis and those that exclude from compensability any loss of sexual function that results from pain or depression.
55. On this basis, Mr Riley should be assessed as having a 20% impairment in respect of his total loss of sexual function.
56. Together with his 10% degree of impairment in respect of his depressive disorder and schizoaffective disorder, and in accordance with the Combined Values Chart of the 2nd edition of the Guide, Mr Riley has a combined degree of impairment of 28%.
decision
57. The decision under review is set aside and instead the Tribunal decides that Mr Riley has permanent impairments resulting from his depressive disorder and schizoaffective disorder and from his sexual dysfunction and has a combined degree of permanent impairment of 28%.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr M E C Thorpe, Member
Signed: .............[sgd]...................................................................
AssociateDates of Hearing 9-10 November 2010, 13 September 2011
Date of Decision 29 September 2011
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Mr T Wells, Lough & Wells Lawyers
Counsel for the Respondent Mr D Richards
Solicitor for the Respondent Ms V Haddad, Dibbs Barker
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