Rodrigues and Comcare
[2001] AATA 171
•7 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 171
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2000/714
GENERAL ADMINISTRATIVE DIVISION )
Re ADRIAN JOSEPH RODRIGUES
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr B. H. Pascoe, Senior Member Mr I. L. G. Campbell, MC, Member
Date7 March 2001
PlaceMelbourne
Decision The Tribunal varies the decision under review by finding that the applicant suffers a 5 per cent whole person impairment in relation to his psychiatric condition which, when added to the accepted 5 per cent whole person impairment in relation to his neck condition, produces a 10 per cent permanent impairment, both conditions relate to a work-related vehicle accident on 24 September 1996 and the applicant is entitled to compensation under section 24 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The matter is remitted to the respondent for assessment of entitlement under section 27 of the Act. Liberty is granted to the parties to apply to the Tribunal if there is a dispute in relation to such assessment. The respondent shall pay the applicant's reasonable party/party costs and disbursements in accordance with the Administrative Appeals Tribunal Practice Direction dated 18 May 1998.
...….(Sgd) B. H. Pascoe.........
Senior Member
CATCHWORDS
COMPENSATION – motor vehicle accident – psychiatric condition – whether permanent – whether entitled to compensation for a permanent impairment – percentage of permanent impairment
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
7 March 2001 Mr B. H. Pascoe, Senior Member Mr I. L. G. Campbell, Member
This is an application to review a decision of the respondent that the applicant was not entitled to compensation under section 24 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in relation to accepted work-related conditions of "soft tissue injury to scalp, shoulders and ribs and phobic disorder". The reasons for the decision were that the respondent, while satisfied that the applicant suffers a 5 per cent whole person impairment in relation to his physical condition, was not satisfied that any psychiatric impairment was permanent and considered that the total degree of permanent impairment fell below the 10 per cent threshold of section 24(7) of the Act.
At the hearing the applicant was represented by Mr M. Carey of counsel and the respondent by Mr A. Moulds of counsel. Evidence was given by the applicant, Mr Rodrigues, and two psychiatrists, Dr A. Kaplan and Dr N. Rose.
Mr Rodrigues was born in India in 1946. He graduated as a chemical engineer before coming to Australia in 1969. After a period in industry he became employed by the Department of Defence in 1985. By 1996 he was a project manager for the Navy and based in the city of Melbourne. Mr Rodrigues said that his job required extensive travel, mostly by air but often by car. On 24 September 1996 he was returning from a meeting in Canberra by car accompanied by another staff member. They left at approximately 1.30 pm. At approximately 4.00 pm the staff member was driving and Mr Rodrigues said that he was dozing in the front seat. He awoke to see the driver struggling to control the car which ultimately ran into a ditch and turned on its side with the passenger side uppermost. He remained suspended by his seat belt and passing motorists lifted him from the car through a window. The driver, who Mr Rodrigues said was hysterical, was also rescued by the passing motorists. A doctor, who was passing, offered assistance but Mr Rodrigues said that he had minor bruising only and did not need help. The driver had relatives in Albury and the police drove Mr Rodrigues and the driver to stay overnight with those relatives. Mr Rodrigues said that he would not sit in the front seat of the police car and insisted on returning to Melbourne by train. On return he visited his general practitioner who arranged X-rays and physiotherapy treatment which provided temporary relief. Mr Rodrigues said that he has only 50 per cent movement in his neck which is still causing him some difficulty.
Mr Rodrigues said that he is now cautious when travelling by car with other people driving, prefers to sit in the back seat, is conscious of constantly watching the driver and, if he is the only passenger, will sit in the front seat to avoid offending the driver but is constantly aware of the potential danger. Currently he drives to work from Templestowe to Laverton as it is the only means of getting there. He said that he has no trouble in suburban streets other than difficulty in turning his head at intersections but becomes agitated when driving in excess of 60 kph on freeways. Mr Rodrigues said that he is constantly trying to move back to the city in his job to avoid the additional car travel to Laverton particularly as it involves freeway driving. He noted an incident in 1997 where he was embarrassed by difficulty in being a passenger of a car driven by a senior naval officer. Mr Rodrigues acknowledged that he completed a driver qualification course using ABS braking during the week prior to the hearing. He said that this was required by his employer where an employee was likely to use government cars. He maintained that he had difficulty and became fearful when required to swerve under brakes, he revisited his accident in his mind and had a nightmare that night.
Dr Kaplan examined Mr Rodrigues on 10 August 1999 and provided a report dated 16 August 1999. His report concluded:
"Mr. Rodrigues was traumatized by his terrifying motor car accident and has, as a result, been left with mild phobic symptoms regarding car travel. His traumatic accident has probably also initially caused him to develop a Post-Traumatic Stress Disorder. Although this condition has largely resolved, he still experiences some residual symptoms and continues to relive the traumatic event. He has otherwise made a good adjustment to the trauma of the accident and to his injury and chronic pain, and this is a measure of his resilience and a reflection of his personality strengths.
Mr. Rodrigues's condition has probably stablized. His phobic symptoms regarding car travel are likely to persist for the foreseeable future as are his residual symptoms arising from his trauma. Any future experience where his life or the lives of those close to him is threatened is likely to produce a re-emergence and exacerbation of his condition. If his physical condition deteriorates with the passage of time, and if he becomes disabled and/or he is forced to cease work he may be at risk of becoming depressed as he is an active man who would probably have difficulty coping with any extended period of enforced inactivity. In view of his phobic symptoms, he would probably not be capable of performing work which would involve a great deal of driving or travelling as a passenger, but otherwise his psychiatric condition would not affect his capacity to work.
I would estimate Mr. Rodrigues's percentage impairment in accordance with Comcare's Guide to the Assessment of the Degree of Permanent Impairment to be 10%."
In his oral evidence, Dr Kaplan said that Mr Rodrigues was a positive individual with no symptoms of depression or anxiousness. However, he believed that there was a minor loss of social efficiency with his phobic reaction to the car accident and a minor distortion of thinking with intrusive thoughts of the accident. He believed that, given the time elapsed since the accident, his symptoms were likely to last indefinitely.
Dr Rose examined Mr Rodrigues on 7 December 1999 and provided a report dated 13 December 1999. His report stated:
"In my opinion, Mr Rodrigues is not suffering from a post traumatic stress disorder. His symptoms are too mild and he does not have most of the manifestations of post traumatic stress disorders, such as nightmares, flash backs and preoccupation with the accident. He does not appear to have become emotionally withdrawn and he is not noticeably depressed or anxious, except for when he is a passenger in a motor vehicle or when he thinks of his family being in a motor vehicle.
I would regard Mr Rodrigues as suffering from a simple phobia, rather than a post traumatic stress disorder and I would regard the consequences of this as being fairly mild."
Dr Rose did not think that the condition required any medical treatment and was hopeful that the phobia would eventually subside. He assessed the degree of permanent impairment at 5 per cent, solely related to the motor vehicle accident. In his oral evidence, Dr Rose accepted that there was interference to a mild degree in thinking and concentration. However, he expected that there would be some improvement and that the phobia may well have dissipated in two to five years time.
It was submitted for the applicant that, in addition to the accepted 5 per cent permanent impairment in respect of the neck injury, there was a further permanent impairment in relation to his psychiatric condition. It was said that the evidence showed that the phobic symptoms had continued for four years and were likely to continue indefinitely. While Dr Rose believed that there was a possibility that the condition would improve, Dr Kaplan considered that this was unlikely. Mr Carey argued that both doctors were familiar with the Comcare Guide to the Assessment of the Degree of Permanent Impairment ("the Comcare Guide") and, while the assessment of 10 per cent by Dr Kaplan was preferred, the assessment of Dr Rose of 5 per cent meant that, when added to the accepted 5 per cent physical impairment, the applicant met the minimum threshold of section 24 of the Act in relation to the one work-related accident.
It was submitted for the respondent that the evidence did not support a finding of permanent impairment for a psychiatric condition. It was said that the applicant had no difficulties with normal activities of daily living but simply some minor difficulty in motor vehicle travel which in itself was improving and unlikely to be permanent. Mr Moulds submitted that no evidence had been led to support the applicant's claims of problems and embarrassment, no treatment had been sought by the applicant for the condition and there were no days lost from work on which he could not travel by car. Finally, it was submitted that, if an impairment existed, any percentage of whole person impairment was less than 5 per cent.
The degree of permanent impairment for psychiatric conditions is set out in Table 5.1 of the Comcare Guide. The relevant percentages and description of the level of impairment are:
"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 or personal or social efficiency
Lack of conscience directed behaviour without harm to community or self
Minor distortions of thinking"
The Comcare Guide defines permanent to mean "likely to continue indefinitely" and states that:
"…an impairment will generally be regarded as permanent when the recovery process has been completed, i.e., when the full and final effect of convalescence, the natural healing process and active (as opposed to palliative) medical treatment has been achieved."
Based on the evidence of Dr Kaplan and Dr Rose, we are satisfied that Mr Rodrigues has a mild psychiatric condition. While Dr Rose believed that there was a possibility of improvement in the future, we are satisfied that the condition has stabilised and is likely to continue indefinitely. As in all such conditions, there is always the possibility that the degree of impairment may improve with time but the likelihood and degree are speculation. Both psychiatrists agree that there is a minor loss of personal efficiency and we find that the condition of Mr Rodrigues is such as to attract a 5 per cent impairment under Table 5.1.
Section 24 of the Act provides for compensation where an injury results in a permanent impairment. Subsection (7) provides that such compensation is not payable where the degree of permanent impairment is less than 10 per cent. In this case, the respondent has accepted that Mr Rodrigues has suffered a permanent impairment of 5 per cent in relation to his physical neck problems. With this finding that he has a 5 per cent impairment for his psychiatric condition related to the same work-related accident, he satisfies that 10 per cent threshold of section 24 and is entitled to the appropriate amount of compensation. As such, he is further entitled to compensation under section 27 of the Act. As no assessment of non-economic loss has been done, this matter should be remitted to the respondent for assessment. The parties have liberty to apply to the Tribunal if there is dispute in relation to such assessment.
I certify that the eleven (11) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
Mr I. L. G. Campbell, MC, MemberSigned: .....................................................................................
Personal AssistantDate/s of Hearing 11 December 2000
Date of Decision 7 March 2001
Counsel for the Applicant Mr M. Carey
Solicitor for the Applicant Arnold Thomas & Becker
Counsel for the Respondent Mr A. Moulds
Solicitor for the Respondent Australian Government Solicitor
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