Shephard and Comcare

[2003] AATA 1031

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1031

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/504

GENERAL ADMINISTRATIVE DIVISION		)
Re		Patricia Shephard

Applicant

And Comcare

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date13 October 2003

PlaceSydney

Decision The Tribunal sets aside the decision under review, namely the decision of an independent review officer made on 5 March 2001, and substitutes a decision that the Applicant has 15% permanent impairment in respect of her compensable condition. 

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RP Handley

Deputy President

CATCHWORDS

COMCARE – liability for injury and disease – degree of permanent impairment – psychiatric condition – examination of the medical evidence – examination of the Applicant’s evidence – held that the evidence supports a finding of 15% impairment   under Table 5.1 – decision of the Respondent set aside – decision substituted that Applicant has 15% permanent impairment in respect of her compensable injury.

Safety, Rehabilitation and Compensation Act 1988 s 14

Guide to the Assessment of the Degree of Permanent Impairment

Re Shephard and Comcare [2003] AATA 25

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REASONS FOR DECISION

13 October 2003	Mr RP Handley, Deputy President
Background

1. On 15 January 2003, the Tribunal published its decision dealing with the first issue in dispute between the parties in this matter (N2001/1705), that of the Respondent’s liability under s 14 of the Safety, Rehabilitation and Compensation Act1988 (“the Act”). The Tribunal set aside the decision under review, namely the decision of the independent review officer dated 26 October 2001, and substituted a decision reinstating the determination by a delegate of the Respondent of 27 June 1995 pursuant to s 14 of the Act, accepting the Applicant’s claim for compensation in respect of her “anxiety state”: ReShephard and Comcare [2003] AATA 25. The background in this matter and the evidence of the witnesses are set out in that decision and not repeated here.

2.      This decision deals with the second issue in dispute between the parties, that of the degree of permanent impairment resulting from the condition.  The degree of permanent impairment of an employee suffering from a psychiatric condition is assessed by reference to Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment  (“the Guide”).

3.      The parties agreed that no further hearing was necessary, a hearing in relation to both issues having been held in Wollongong on 16 and 17 December 2002.  The Applicant has submitted two further reports: that of Ms Shephard’s treating Consultant Psychiatrist, Dr Greg Wilkins dated 12 May 2003 (A7), and her treating Psychologist, Ms Susan Maher dated 13 June 2003 (A8).  The parties have also submitted written submissions on this second issue.

4.      The reviewable decision of 5 March 2001 was made on the basis of an assessment of the Applicant’s permanent impairment of 10%.  The Applicant contends that the injury resulted in a permanent whole body impairment of 50% under Table 5.1.

5.      Table 5.1 of the Guide is as follows:

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
25	ALL 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
30	ANY 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
40	MORE 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
90	Very 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

6.      The Glossary for the Guide defines “Activities of Daily Living” 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

Review of Medical Evidence

7.      The original decision on the assessment of the Applicant’s level of impairment dated 22 November 2000 (T185) rejected a 50% assessment made by Dr Wilkins.  The delegate said Dr Wilkins’ assessment was not supported by the evidence on the file.  In the relevant part of the Applicant’s Compensation Claim for Permanent Injury dated 22 August 2000 (T177), Dr Wilkins had assessed the extent of the Applicant’s impairment as 50% in relation to Table 5.1.  He diagnosed the condition “as relapsing major depression”..

8.      The more recent medical evidence on file comprises reports by Dr Wilkins, by Ms Maher, her rehabilitation counsellor Ms Susan Milne, and by the consultant psychiatrist to whom the Applicant was referred by the respondent for a medico-legal report, Dr Robert Lewin.

9.      In his first report dated 16 October 1997 (T79), Dr Lewin diagnosed an Adjustment Disorder, which he said was “resolving”..   In his second report dated 9 June 1998 (T119), Dr Lewin said, in his opinion, the Applicant “was certainly not clinically depressed and I did not find clinical signs of a Post Traumatic Stress Disorder”.  He said: 

It is my opinion that she no longer has severe symptoms of an Adjustment Disorder and that, if anything, she has mild symptoms …

I did not diagnose any psychiatric condition which would result in permanent impairment in this case.

He did, however, say that ongoing treatment with Dr Wilkins over the next six months was appropriate.

10.     In her report of 13 December 2000 (T191), Ms Maher, who has been providing counselling and treatment support to the Applicant since December 1995, said the Applicant had “experienced suicidal ideation or displayed suicidal and self-harming behaviours”.  She had “experienced suicidal thoughts and plans on many occasions during periods of my treatment of her”.

11.     In a report dated 15 December 2000 (T192), Dr Wilkins stated:

Ms Shephard remains severely depressed.  Ms Shephard’s present condition is one of chronic suicidality.  She is daily plagued with feelings of despair reports feelings of wanting to bring her life to an end, as she can no longer tolerate the protracted and uncertainty surrounding her case.

Dr Wilkins wrote a later report dated 3 May 2001 (A1) supporting Ms Maher’s statement and stating:

Ms Shephard remains severely depressed.  Ms Shephard’s present condition is one of chronic suicidality.  She is destabilized intermittently by various stressors, which in her pre-morbid state she would have been able to cope with quite well [sic] provoke suicidal thoughts.

12.     In a report dated 18 December 2000 (T193), Ms Milne, the Applicant’s rehabilitation counsellor, identified a case note written on 18 January 1999 on a worksite visit:

Patricia furiously angry and dominated by this emotion to the extent that she is planning steps involved in suicide.  Feels suicide is the only plan she can be sure to control and implement. 

13.     The Applicant was also referred to Dr JC Ford, Consultant Physician and Cardiologist who prepared a report dated 19 April 2001 (N2001/1705 T3).  He stated:

She has chronic anxiety/depression and is under enormous emotional stress of a continuous nature.  Her [heart] symptoms are generated by her emotional state and exacerbated by them as well.

Dr Ford said of the symptoms – palpitations, chest tightness, feelings of panic and discomfort in the chest and throat:

None of these were dangerous, none of these were sustained and she has a normal cardiac echo.

14.     In a letter dated 14 May 2001 (N2001/1705 T6), Dr Ford reported on the results of further investigations:

Obviously, her underlying anxiety condition is a precipitant for the presence of the palpitations.  The anxiety state, is responsible for her consciousness of palpitations and the exacerbations of these symptoms. 

Actually, this lady requires counselling and serious reassurance that her condition is not serious, or sinister and that there is no structural, or underlying heart disease present.

The prognosis is excellent and with reassurance she should learn to live with her symptoms, but whilst underlying anxiety continues her palpitations will persist.

15.     The Applicant was also referred to Dr Robert Moses, Consultant Physician and Endocrinologist, who prepared a report dated 1 May 2001 (N2001/1705 T4).  He found the Applicant to have “type 2 diabetes which is due to a combination of insulin resistance and relative inadequate secretion of insulin”.  He stated:

An anxiety state can have a marked effect on diabetes … While stress cannot cause diabetes it can unmask diabetes which otherwise may have taken some time to declare …

There is no reason that she should be absent from work due to her diabetes.

Discussion

16.     The difficulty faced by the Tribunal is in making an assessment of Ms Shephard’s psychiatric condition when it is clear from the medical evidence that the ongoing legal proceedings in relation to her claim for compensation has been a major contributor to her current condition.  The Tribunal must assess her condition as if that exacerbant was removed.  The Tribunal’s observation of Ms Shephard in giving evidence at the hearing, indicated that while teary and emotional at times, she coped well with giving an account of the harassment and intimidation she has suffered, as well as relating how she has suffered non-work related personal anxiety.  The latter anxiety was in connection with, first, having to have contact with her brother, who abused her sexually as a child, over the illness and subsequent death of their parents, and, second, in connection with the sexual abuse of her daughter by her second husband and his consequent trial on related charges.  Ms Shephard’s conduct at the hearing did not, in the Tribunal’s opinion, indicate that either of the criteria required by Table 5.1 for a 50% impairment rating were met.

17.     Dr Wilkins’ reports indicate that Ms Shephard had derived significant support from her family and friends.  The Tribunal observed that her son and daughter provided her with support through the hearing.  She has also received ongoing support from her general practitioner, Dr Luciano Diana, and from Dr Wilkins and Ms Maher.

18.     In Dr Wilkins’ most recent report of 12 May 2003 (A7), he said he is not currently treating Ms Shephard.  He reviews her on an ad hoc basis and last saw her on 21 February 2003.  In 2002, he saw her on 5 February 2002, 19 April 2002 and 6 August 2002.  The Tribunal notes that when Dr Wilkins saw her on 21 February 2003, this was after the Tribunal hearing on 16 and 17 December 2002 and after publication of the Tribunal’s decision on the first issue in this matter on 15 January 2003.   Dr Wilkins said Ms Shephard continued to complain of depression and anxiety symptoms.  She was not suicidal but “susceptible to developing suicidal thoughts in the future especially if confronted with hopeless circumstances”.  He found that Ms Shephard “had achieved a reduction in her symptoms” and assessed the level of her impairment at 15% under Table 5.1, noting that “she has achieved a reasonable level of activity in the home and performs unsupervised activities of daily living”. 

19.     In her most recent report dated 13 June 2003 (A8), Ms Maher states that she is treating Ms Shephard fortnightly.  She says:

Ms Shephard presents clinically at great risk of self harm.  She reports that she has plans of how she will kill herself, she has packed boxes for her children and she has written letters of goodbye … The risk that she will act upon these suicidal feelings is exacerbated when she is exposed to circumstances or contexts in which she experiences a sense of helplessness.

Ms Maher refers to Dr Wilkins’ assessment of Ms Shephard’s impairment at 50% on 22 August 2000.  Ms Maher states:

From my ongoing supervision and treatment of Ms Shephard in my opinion there has been no improvement in her functioning from the time that Dr Wilkins provided this opinion.  She continues to experience severe disturbance of thinking and behaviour which entails potential harm to herself.

20.     Ms Maher notes that Ms Shephard’s “daughter lives close by and at times provides support”.  Ms Shephard “socialises upon a limited basis”.  She “has developed a very constricted lifestyle” which:

results in her finding daily living tasks such as shopping, socialising, dealing with agencies and service providers and self-care activities difficult.  Marked disturbance in thinking and behaviour are associated with the psychological conditions affecting Ms Shephard.

There is no indication that Ms Maher has seen Dr Wilkins’ most recent report of 12 May 2003 (A7).

21.     Ms Shephard lives alone.  At the hearing in December 2002, Ms Shephard did not give evidence of specific difficulties with the activities of daily living.  However, the evidence of Dr Wilkins is that she feels alone and under threat, and Ms Maher says she finds shopping, socialising, dealing with agencies and service providers and self-care activities to be difficult.  Ms Shephard also gave evidence that she had thought of harming herself, most recently after the conciliation conference in this matter held in Sydney (2 April 2002).  She felt like driving up to the top of the mountain and driving off the cliff.  In 2001, a friend of hers committed suicide by gassing himself with car exhaust fumes.  She also thought how she might do this.

22.     In the Tribunal’s view, the evidence does not support an assessment of Ms Shephard’s psychiatric condition at 50% under Table 5.1.  The Tribunal finds that Ms Shephard has some difficulty with the activities of daily living in so far as they involve contact and dealing with others.  She receives regular fortnightly treatment from her psychologist, and her daughter is on hand to provide support and assistance when required.   Her son also maintains close contact.  The Tribunal relies on Dr Wilkins’ and Ms Mahers’ evidence in finding that Ms Shephard has symptoms of anxiety and depression and suffers marked disturbances in thinking, including, from time to time, suicidal thoughts.  It is likely that her condition will continue indefinitely. 

23.     The Tribunal notes that Dr Wilkins’ most recent assessment of Ms Shephard’s level of impairment under Table 5.1 is 15%.  The Tribunal considers this to be a fair assessment of Ms Shephard’s condition against the relevant criteria for this level of impairment and, therefore, finds accordingly.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .......................................................................................
  Associate

Date of Hearing N2001/1705
and N2001/504  16 and 17 December 2003
Date of Decision  13 October 2003      

Solicitor for the Applicant  Mr N McCarthy, Creswick McCarthy

Solicitor for the Respondent  Ms L Rieper, Dibbs Barker Gosling