Staines and Comcare
[2005] AATA 858
•5 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 858
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/184
GENERAL ADMINISTRATIVE DIVISION ) Re MICHELLE STAINES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date5 September 2005
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that Ms Staines has a whole person impairment of 10 percent under Table 5.1 of the Guide to the Degree of Permanent Impairment. The scores to be used for the purpose of calculating her entitlement to compensation for non-economic loss under Part B of the Guide are:
Pain - 0
Suffering - 3
Mobility - 2
Social relationships - 3
Recreation and leisure - 4Other - 0
The matter is remitted to Comcare to determine the correct amount that is payable to Ms Staines in accordance with these reasons.
As this matter has resolved in favour of Ms Staines, pursuant to subs 67(8) of the Act I order Comcare to pay her reasonable costs of these proceedings as agreed or taxed in accordance with the Tribunal’s Practice Direction.
..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - entitlements - assault occasioning injury - liability accepted for panic disorder - multifactorial onset - predisposition - condition existing prior to injury - impairment prior to injury not permanent - fluctuation in symptomatology - issues of credit - interpretation of Table 5.1 in the Comcare Guide - permanent impairment - agreement on non-economic loss values - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 7, 14, 27, 67
Lees v Comcare [1999] FCA 753
Comcare v Moon (2003) 75 ALD 160
Re Harrington and Military Rehabilitation and Compensation Commission [2005] AATA 384.
Commonwealth v Borg (1994) 20 AAR 299
Langley v Repatriation Commission (1993) 115 ALR 51
Comcare v Mathieson [2004] FCA 212)
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 Sat and Comcare [2004] AATA 334 at [28]).
Martin v Australian Postal Corporation (1999) 29 AAR 420
REASONS FOR DECISION
5 September 2005 Mr S. Webb, Member 1. By this application Michelle Staines is seeking review of a decision made by a Comcare review officer on 13 May 2004 to affirm a primary determination to reject her claim for compensation for permanent impairment and non-economic loss.
2. The matter came on for hearing before me in Canberra on 3 and 4 August 2005. Ms Staines was represented by Mr A. Anforth, counsel. Comcare was represented by Mr B. Dubé, counsel. Ms Staines, Lynette Staines (her mother), Dr Leigh Nomchong (Clinical Psychologist), Dr Jillian Fleming (Forensic Psychologist) and Dr John Saboisky (Consultant Psychiatrist) gave oral evidence. Materials were tendered and labelled for identification. The Tribunal had before it documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
factual context
3. The following factual findings are not in dispute.
4. Ms Staines was born on 18 January 1983.
5. On 13 September 2001 she was injured at work in the employment of the ACT Department of Disability, Housing and Community Services (“the Department”). Ms Staines’ injury occurred when she was assaulted by a patient in a residential care facility. She completed an Accident Report (T4) and subsequently claimed compensation on 18 September 2001 (T8).
6. On 28 September 2001 Comcare accepted liability for “neck sprain (posterior)”, “lumbar sprain” and “swelling, mass or lump in head and neck” (T9).
7. On 21 November 2002 Comcare accepted liability for “a secondary condition of ‘panic disorder’” (T42).
8. On 5 November 2003 Ms Staines lodged a Compensation Claim for Permanent Injury form in relation to “panic disorder with possible bi-polar features” (T73). On 1 December 2003 Ms Staines completed a Non-Economic Loss Questionnaire (T78).
9. On 11 November 2003 Ms Staines accepted an offer of voluntary redundancy as an excess officer (T79).
10. On 13 February 2004 Comcare determined to reject Ms Staines’ claim for permanent impairment compensation on the basis that she “suffer[ed] a whole person impairment of less than 10%”, stating (T83):
“… I have determined that you are not eligible for any compensation under section 24 and consequently are not eligible for a payment for non-economic loss under section 27 of the Act.”
11. On 5 March 2004 a consent decision was given in proceedings before the Administrative Appeals Tribunal (matter number A2003/307)(T85). The Tribunal decided, inter alia, that Ms Staines was fit for full time work from 1 September 2003 and noted that certain matters were agreed by the parties, including:
“3.1 That any other medical condition suffered by the Applicant on or after 1 September 2003 was not as a result of the Applicant’s accepted compensable conditions or any other condition temporally or causally related to her employment with ACT Community Care or the ACT Department of Disability, Housing and Community Services…”
12. On 3 March 2004 Ms Staines requested reconsideration of the decision to reject her claim for permanent impairment compensation (T84).
13. On 13 May 2004 a Comcare review officer decided to affirm the primary determination, stating (T89, folio 197):
“… I am satisfied, on the balance of probabilities, that the employee has a permanent impairment, however, I am not satisfied that the degree of the employee’s impairment is more than 5% and therefore the employee is not entitled to recover for a permanent impairment of less than 10%.”
14. Ms Staines made an application to this Tribunal for review of that decision.
issues for determination
15. I do not comprehend the case for Comcare to be that Ms Staines’ claim is negatived or estopped by the Tribunal’s consent decision on 5 March 2004. If that were the case I would be compelled to reject it. The consent decision was concerned with the period, at that date, in which Ms Staines suffered incapacity as a result of injury pursuant to her claim in that regard. It did not deal with her claim for compensation in relation to permanent impairment that was lodged on 5 November 2003. Plainly, the issue raised by this application is in relation to a fresh claim under a different head of compensation than the issue dealt with by the Tribunal on 5 March 2004. That being so there is no bar to the Tribunal proceeding to hear and determine the matter.
16. Having said that, however, the Tribunal’s determination that Ms Staines was fit for full time work from 1 September 2003 may be a relevant matter in these proceedings. To the extent that Comcare seeks to rely on Ms Staines’ noted agreement that “…any other medical condition…” suffered by her after 1 September 2003 “…was not as a result of [her] accepted compensable conditions…”, I note that the agreement excludes the conditions that Comcare accepted were compensable, of which panic disorder was one.
17. The issues for determination are:
(a)whether Ms Staines’ compensable panic disorder has resulted in a permanent impairment, and, if so
(b)the degree of the impairment with reference to the approved Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”), and
(c)whether Ms Staines is entitled to compensation for non-economic loss.
legislation and legal principles
18. Ms Staines’ application rises for consideration under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
19. Under the Act Comcare is liable to pay compensation to an employee where a work related injury results in permanent impairment (subs 24(1)). The amount of compensation is to be calculated on the basis of the degree of permanent impairment assessed under the provisions of the Guide (subs 24(3) to (6), s 28 applies). Compensation is not payable if the degree of permanent impairment is less than 10 percent (subs 24(7)).
20. If compensation is payable in relation to a permanent impairment Comcare is also liable to pay compensation for non-economic loss suffered by the employee as a result of the work-related injury (subs 27(1)). The amount of compensation for non-economic loss is to be calculated applying the formula set out at subs 27(2).
21. Counsel for Ms Staines opened her case on the basis that the scope of the Tribunal’s review does not extend to the consideration of liability. It is convenient to deal briefly with that matter at the outset. In this case, Comcare determined to accept liability for panic disorder secondary to injury. That determination was pursuant to subs 14(1) of the Act. Neither the primary determination nor the reviewable decision that is the subject of these proceedings purported to revoke that s 14 determination. In Lees v Comcare [1999] FCA 753 a Full Court of the Federal Court considered the extent of power of the Tribunal when reviewing decisions under the Act and concluded at paragraph 39 that the Tribunal is “… authorised by s 64 of the Act to review only reviewable decisions…” and “… the powers of the AAT under s 43(1) of the AAT Act are powers for the purpose of reviewing the reviewable decision, not powers that may be exercised at large…”. That authority was applied by Mansfield J in Comcare v Moon (2003) 75 ALD 160 and is apposite here. Applying that authority, it follows that the s 14 determination of liability is not before me in these proceedings.
22. I understand that the case for Comcare does not challenge the original determination of liability in relation to panic disorder. It is not strictly necessary, therefore, to deal further with that point. However, for the purpose of clarity, I note that subs 24(1) requires a decision-maker to determine whether the essential nexus between compensable injury and permanent impairment exists as a matter of probability. For that purpose it may be necessary to carefully consider the facts and circumstances of the injury, but without revisiting the original determination of liability (Comcare v Moon (supra) at ALD 166-167). I was referred to the case of Re Harrington and Military Rehabilitation and Compensation Commission [2005] AATA 384. That case was concerned with a reviewable decision concerning a claim for incapacity payments following a previous determination to cease such payments, in which the original determination accepting liability for injury was not squarely before the Tribunal. The Tribunal reviewed the cases of Commonwealth v Borg (1994) 20 AAR 299, Langley v Repatriation Commission (1993) 115 ALR 51, Power v Comcare (1998) 56 ALD 141 and Comcare v Moon (supra) and concluded at [68]:
“68 …the decision of the Full Court in Borg is binding on us. It is directly in point as it deals with a compensation determination in very similar terms to that in issue in this matter. It is a decision of the Full Court of the Federal Court. Thus, as the reviewable decision before us did not revoke the primary determination of 4 May 1978, we do not have power to reopen issues determined in May 1978 in this application.”
23. The Harrington case and the cases of Borg and Power are concerned with claims for incapacity compensation subsequent to a determination purportedly ceasing such compensation payments. Those cases are not on all fours with this case, whereas the case of Moon is. To the extent that the reasoning of the Tribunal is consistent with the approach adopted in Moon, I see no reason to depart from it.
findings on material questions of fact and consideration of issues
24. Making this decision I have carefully considered the whole of the evidence, the submissions of the parties, the relevant caselaw and legislation.
credit
25. It is necessary to say something about the reliability of Ms Staines’ evidence. I am satisfied that Ms Staines is not a reliable historian or a reliable witness in these proceedings. For that reason I cannot accept her evidence without independent corroboration. During the course of her oral evidence it became clear that Ms Staines was not entirely truthful in her evidence under oath. Aspects of her evidence were contradictory and inconsistent. Counsel for Ms Staines submitted that the inconsistencies and contradictions in her evidence did not amount to lying, with a deliberate intent to deceive, but rather related to an ‘absolute’ manner of speaking as a result of her lack of education and intelligence.
26. Ms Staines was closely questioned in relation to matters of detail concerning her activities in recent times and was permitted to correct generalised statements with more detailed (and narrower) responses in her sworn evidence. Her purported use of ‘absolute’ language does not provide an adequate explanation for the inconsistencies and contradictions that became apparent during cross-examination, in relation to outings to pubs and clubs or her dependency on members of her immediate family on such outings, for example. Dr Nomchong, Clinical Psychologist, attributed Ms Staines’ difficulty “chronologising” or recalling relevant events to her depression and anxiety. That may be so, but it does not render her evidence in this Tribunal any more reliable.
27. Ms Staines claimed that she could not leave her home without members of her immediate family. In the face of video evidence to the contrary (in which she went out for extended periods with friends), she conceded that was not true, asserting that she could only go out in the company of close friends.
28. She gave evidence in chief that she would only go out to pubs and clubs in the company of her mother or her immediate family, and would only do so “once per month”. When confronted in cross-examination with evidence that she had gone out to seven pubs and clubs on five days over a two week period in March 2005, and at least twice without members of her immediate family being present, she conceded that her previous evidence was wrong. She then attempted to change her evidence stating that she had gone out to pubs and clubs “3 or 4 times per week” “for about 6 months” from January 2005, when re-examined on this point she stated that she had done so since January 2004, “but only for 6 months”.
29. Ms Staines’ evidence in chief was that she would not go into crowded places where there were a lot of people, such as malls, unless she had to. Video evidence was adduced in which she was filmed with friends in a crowded bar at the Old Canberra Inn on 24 March 2005, and in a crowded food hall and shopping with her mother at the Belconnen Mall on 16 and 17 March 2005. Similarly contradictory evidence was adduced in relation to Ms Staines’ assertions that she could not go out alone (she was filmed alone at her local shops, driving a car alone and waiting by herself for family members at the crowded Jamison Trash and Treasure market on 13 March 2005).
30. Even if I accepted that Ms Staines commonly used ‘absolute’ language in her consultations with medical practitioners (for example, using ‘never’ or ‘always’ in place of ‘occasionally’ or ‘sometimes’), her use of ‘absolute’ language does not explain the apparent pattern of omission of relevant information (relating to her history of anxiety or her motor vehicle accident in 1996) when examined by Dr Nomchong, Dr Fleming , and Dr Saboisky. Nor does it explain the inconsistent accounts of her activities she gave to examining doctors. Dr Nomchong asserted that such inconsistencies and omissions did not cause him to modify his opinions about Ms Staines’ psychological condition and her permanent impairment, being consistent with illness. Dr Fleming conceded that if Ms Staines lied under oath and her reported medical history could not be relied upon, that may affect her opinion and her assessment of whole person impairment.
impairment
31. The preponderance of the medical evidence is that Ms Staines suffers from panic disorder with secondary agoraphobia (Dr Duke, Consultant Psychiatrist, Dr Eaton, Occupational Physician, Dr Tran, Treating Psychiatrist, Dr Saboisky and Dr Fleming). I so find.
32. Comcare accepted that panic disorder was an injury under the Act for which it was liable pursuant to subs 14(1) of the Act on 21 November 2002. That determination is not revoked by the primary determination or the reviewable reconsideration decision in issue in these proceedings. Nonetheless, it is necessary to consider the medical evidence and circumstances of Ms Staines’ psychological health before and after the injury in order to properly determine whether she has a permanent impairment as a result of her compensable injury.
33. The essential feature of panic disorder is the recurrence of panic attacks and related anticipatory anxiety. Panic attacks involve at least four of the symptoms required for diagnosis set out at p 405 of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM-IV”) (Dr Saboisky). The evidence concerning Ms Staines’ medical history reveals that Ms Staines has a history of anxiety attacks, hyperventilation, agitation, breathing difficulties, depression and related symptoms in the period from 1997 to January 2000 (Exhibit R4). I so find.
34. Considering the whole of the evidence, I find that Ms Staines suffered from panic disorder from 1997 or thereabouts and, as a function of that disorder, was susceptible to panic attacks. In so finding I prefer the evidence of Dr Saboisky over that of Dr Nomchong and Dr Fleming. Dr Saboisky had access to all materials subpoenaed from the Florey Medical Centre, whereas, it appears, that Dr Nomchong and Dr Fleming did not.
35. I pause to note that Ms Staines reported aspects of her medical history of hyperventilation and shortness of breath during a health status assessment on 4 August 2000. She did not report any history of anxiety attacks or depression.
36. The medical evidence is plain enough that Ms Staines did not obtain treatment for panic disorder or any anxiety related complaints from January 2000 until shortly after her injury on 13 September 2001. However, the absence of symptoms of panic attacks over such a period does not indicate that panic disorder was not present. Panic disorder is a variable condition. Symptoms may vary from day to day: patients have goods days and bad days (Drs Nomchong, Fleming and Saboisky). The course of the condition may vary from person to person: in some people the condition may be quiescent for long periods between attacks, whereas others may experience more continuous symptoms. Dr Saboisky gave evidence that in 70 percent of sufferers the disorder will have a fluctuating course over a six to ten year period. I accept that evidence.
37. In Ms Staines’ case it appears and I find that her panic disorder was quiescent from January 2000 or thereabouts at least until her injury on 13 September 2001. I note that there is no assessment of the degree of any permanent impairment as a result of Ms Staines’ panic disorder or vulnerability to panic attacks prior to her injury. At that time she was working without apparent impediment.
38. It is plain enough from the medical evidence in the period following the assault on 13 September 2001 that Ms Staines suffered physical and psychological symptoms and obtained various rehabilitative treatments. The treating doctor’s clinical notes from that time (Exhibit R4) reveal that Ms Staines obtained treatment for physical injuries and headaches in the days after the assault. There is no reference in the clinical notes to anxiety related complaints until 6 October 2001, on which day it appears that Ms Staines requested “an anti anxiety drug”. Dr G. Danta (Neurologist) examined Ms Staines on 10 and 23 October 2001 and diagnosed post traumatic headache and migraine (see T12), but did not report any complaints in relation to anxiety or panic attacks. On 15 October 2001 Ms Staines’ general practitioner noted “…Anxiety attack (had some attacks in the past)…” and prescribed Ducene “for anxiety attacks” on 1 November 2001. On 6 November 2001 Dr G. Eaton certified that Ms Staines was suffering from, inter alia, “…resultant anxiety and panic attacks…” (T15).
39. On 19 November 2001 Ms B. Barker (Intern Psychologist) reported that Ms Staines “… reported having panic attacks, sometimes several times daily…” and diagnosed “… Posttraumatic Stress Disorder (acute), Major Depressive Disorder, Single Episode, and a secondary diagnosis of Panic Disorder with Agoraphobia.” (T16 folios 27 and 28). Thereafter she obtained treatment from Ms Barker in the form of psychological counselling. On 21 January 2002 Dr M. Duke (Consultant Psychiatrist) reported that Ms Staines had been offered vocational rehabilitation, which she was considering, and that she was not taking any medication (T23 folio 49). Dr Duke was of the opinion (T23 folio 53):
“Normal treatment for panic disorder with agoraphobia includes psychological treatment, which Ms Staines is currently undertaking with Ms Barker, but it is also common to receive medication. The normal medication for such a disorder is the usual range of what are commonly called antidepressants…”
40. On 8 April 2002 Dr Eaton recommended “…ongoing psychological counselling…” (T28 folio 61) and reported that Ms Staines was taking “… the antidepressant Luvox…” (T28 folio 62).
41. On 28 August 2002 Dr Fleming reported that (T33 folio 80):
“6. Ms Staines requires immediate psychological assistance. She is currently feeling very anxious and experiencing frequent panic attacks, which are resulting in her isolating herself. In addition she is depressed with suicidal ideation. I recommend her antidepressant medication be increased to a more therapeutic level. In addition she requires ongoing cognitive behavioural therapy for her depression and post traumatic stress disorder. Initially she will require weekly sessions for approximately 6 months followed by fortnightly sessions for a further 6 months…”
42. On 1 September 2003 Dr F Tran (Treating Psychiatrist) reported that Ms Staines had no suicidal thoughts and was “responding reasonably well” to an increased dose of antidepressant medication. Dr Tran stated in relation to psychotherapy “…she has been working very well on herself and is ready to attend the anxiety course at Hyson Green…” (T70 folio 152).
43. Ms Staines resumed her pre-injury hours in an administrative role in the Department on 4 September 2003. She accepted an offer of voluntary redundancy on 11 November 2003 (T79).
44. Ms Staines accepted that she was not incapacitated for work on 1 September 2003, but asserted that she continued to suffer panic attacks with anticipatory anxiety and phobic avoidance thereafter to the present.
45. While there is some doubt about the severity of her symptoms, to which I will return below, I accept that Ms Staines continues to suffer from an impairment as a result of panic disorder that was aggravated by work-related injury. I note the definition of ‘impairment’ at subs 4(1) of the Act. I am reasonably satisfied that, absent the work-related aggravation of her pre-existing panic disorder, being a disease, the impairment either would not have occurred, or the extent of the impairment would have been significantly less pursuant to subs 7(6) of the Act.
is the impairment permanent?
46. It is necessary to determine whether Ms Staines’ impairment is permanent. When determining whether an impairment is permanent, a decision maker is required to have regard to matters set out at subs 24(2) of the Act. It is not appropriate to have regard to the Guide for the purpose of determining whether an impairment is permanent (Comcare v Mathieson [2004] FCA 212). ‘Permanent’ is defined to mean “likely to continue indefinitely” (subs 4(1) of the Act).
47. There are some difficulties with the medical evidence on this point. It appears that Drs Nomchong, Fleming and Saboisky agree that the panic disorder condition is permanent. However, Drs Nomchong and Saboisky report that further treatment is warranted. Dr Saboisky stated that for medico-legal purposes the condition is stable and unlikely to improve but reported that the present degree of impairment may be reduced by further treatment. I am not persuaded by that ambiguous evidence to conclude that Ms Staines’ impairment is not permanent within the meaning of the Act. I note Dr Saboisky’s evidence concerning the percentage rate of recovery in panic disorder sufferers. I comprehend his comment about reduction of impairment to be in the realm of possibility and not that such reduction is likely or probable. I understand that Drs Nomchong and Saboisky were directing their comments concerning further treatment to the ongoing management of Ms Staines’ condition. On that basis, I am satisfied that they were not recommending further rehabilitative treatment.
48. I accept the medical consensus that Ms Staines’ impairment is permanent and so find.
what is the degree of permanent impairment?
49. Determination of the degree of permanent impairment is to be made in accordance with the Guide. In this case Table 5.1 must be considered. Dr Saboisky made an assessment of 5 percent whole person impairment under Table 5.1. Dr Nomchong and Dr Fleming assessed Ms Staines’ whole person impairment to be 15 percent under that Table.
50. For the reasons aforesaid I am satisfied that the degree of Ms Staines’ impairment is not as great as she has made out in this Tribunal or in the accounts she has given during medical examinations. Nonetheless, exaggeration alone does not mean that the case must resolve in favour of Comcare.
51. A 15 percent whole person impairment under Table 5.1 requires, inter alia, “some supervision and direction in activities of daily living”. The term ‘activities of daily living’ is defined in the Guide Glossary as follows:
“Activities of Daily Living Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
Ability to receive and respond to incoming stimuli
Standing
Moving
Feeding (includes eating but not the preparation of food)
Control of bladder and bowel
Self care (bathing, dressing etc)
Sexual function”
52. Ms Staines’ evidence was that she relies on her mother for care. However, neither her evidence nor that of her mother (Lynette Staines) indicated that Ms Staines needed ‘some’ supervision and direction, being any amount more than de minimus, with any one or more of the physical or psychosocial aspects of the activities of daily living as defined (Re Emery and Comcare (1992) 15 AAR 477, as approved on appeal by Spender J in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147). I note that both supervision and direction are required at this level of impairment and that “‘direction’...connotes some form of instruction, and a more intensive involvement than might be entailed in the concept of assistance” (Re Sat and Comcare [2004] AATA 334 at [28]). Lynette Staines gave evidence that her memory is faulty and that she could not accurately place events in time. Certainly her evidence suffered that difficulty. It is not clear to me, when she referred to “doing everything” for her daughter, what period she was referring to. Her evidence must be treated with caution.
53. I am satisfied that Ms Staines does not require supervision and direction in relation to any physical or psychosocial factors relating to activities of daily living and so find. Ms Staines asserted that she requires some supervision and direction in relation to practical day to day things, such as getting up in the morning or going out. It may be that her mother assists her with the selection of clothes or with make-up, or urges her to get up in the morning or to go out, or that she requires accompaniment to go into crowded places. Those physical and psychosocial factors at the interface of activities of daily living are not factors with which Ms Staines needs supervision and direction either now or at the time she made her claim for permanent impairment compensation. Properly they are matters of movement and self care with which she may require assistance from time to time.
54. As can be seen from comparison of the criteria in relation to activities of daily living at the level of 10 percent and 15 percent in Table 5.1, at the 10 percent level the person “is capable of performing activities of daily living without supervision or assistance”, whereas the criteria at the 15 percent level specify “a need for some supervision and direction”. There is a gulf between. However, on the basis that the Table purports to set out a graded scale I am satisfied that the assistance required in this case, which is at a low level barely more than de minimus, does not warrant assessment of Ms Staines’ impairment at the level of 15 percent and is consistent with a minor loss of personal or social efficiency in reaction to stressors of daily living. That being so, it is not necessary to consider whether other criteria at the 15 percent level are satisfied. I am satisfied that Ms Staines’ impairment is not at the 15 percent level and so find.
55. A 10 percent whole person impairment under Table 5.1 requires more than one of the listed criteria, whereas a five percent impairment requires one of the listed criteria at that level. As I am satisfied that Ms Staines does suffer a loss of personal and social efficiency in reaction to stressors of daily living, I find that a zero percent whole person impairment does not apply in this case. Drs Nomchong, Fleming and Saboisky agree that Ms Staines suffers a loss of personal or social efficiency in reaction to stressors of daily living. I accept that evidence and so find.
56. The medical evidence does not point to a “lack of conscience directed behaviour without harm to community or self”. That criterion is not applicable in this case.
57. Does Ms Staines’ impairment involve minor distortions of thinking? I am reasonably satisfied on the balance of probabilities that it does. The term ‘minor distortions of thinking’ is given no special meaning by the Guide or the Act. Dr Saboisky was of the opinion that distortions of thinking should be applied as a psychiatric test on the basis of distortions of the content of thoughts, such as delusions that may be experienced by people suffering dementia or schizophrenia. Dr Fleming explained ‘minor distortions of thinking’ in terms of cognitive distortions, such as “believing that you are going to die if you cannot breathe properly or avoiding situations because you cannot cope”. Dr Nomchong stated that he understood ‘minor distortions of thinking’ to mean intrusive thoughts, such as mild paranoia or avoidant behaviour.
58. The Guide purports to emphasise loss of function as a basis of assessment of impairment and “as far as possible objective criteria have been used”, whereby comparisons of “personal efficiency” are expected to be drawn in relation to “a normal healthy person” (the Guide, Principles of Assessment, p3).
59. It is necessary to distinguish “minor distortions of thinking” from the other two criteria at the 10 per cent level concerning reactions to stressors of daily living and the lack of conscience directed behaviour. Dr Saboisky was of the opinion that avoidant behaviour is within the meaning of reactions to stressors of daily living and is not a distortion of thinking, it being entirely rational to avoid situations that have caused panic attacks in the past. Thinking is a process of logic and reasoning (Gould’s Medical Dictionary, 3rd Edition, 1972) for the interpretation and ordering of symbols, for learning, for organising information, and for problem solving (Taber’s Medical Encyclopaedia, 18th Edition, 1997). I accept Dr Saboisky’s evidence that irrationality is a measure of distortion of thinking and avoiding circumstances that have previously triggered a panic attack is not irrational or distorted thinking. I also accept his evidence that suicide ideation may be consistent with distorted thinking and that a person could be expected to experience minor distortions of thinking during a panic attack.
60. In Ms Staines’ case there is evidence that she had suicide ideation in the past and attempted suicide in April 2004. The evidence is that she had a panic attack and was admitted to Calvary Hospital having taken an overdose of drugs following the breakdown of a relationship and a pregnancy termination that she was worried about. I note that the termination of unwanted pregnancies in 1999 caused Ms Staines to experience panic or anxiety attacks at that time. It is possible that such a termination would have triggered a panic attack in any event. However, the panic attack in April 2004 occurred in the context of impairment after injury and caused Ms Staines to attempt suicide. That is evidence of a distortion of thinking. It is consistent with a person suffering distortions of thinking during a panic attack.
61. What is required is ‘minor’ or relatively small or lesser distortions of thinking. I am satisfied that Ms Staines experiences distortions of thinking during a panic attack that are within the meaning of “minor distortions of thinking” and so find. That being so, I am reasonably satisfied that Ms Staines has a whole person impairment of 10 percent under Table 5.1 of the Guide and so find.
62. I am satisfied that Ms Staines presently suffers from a permanent impairment as a result of a work-related injury on 13 September 2001. The degree of that impairment is 10 percent pursuant to Table 5.1 of the Guide. Prior to injury there was no assessment of the degree of any impairment resulting from Ms Staines’ pre-existing panic disorder. Following the approach adopted in Martin v Australian Postal Corporation (1999) 29 AAR 420 I am satisfied that Ms Staines’ impairment in its present degree is the result of work-related injury and so find. It follows that Ms Staines is entitled to payment of compensation for permanent impairment.
compensation for non-economic loss
63. As compensation is payable to Ms Staines pursuant to subs 24(1) of the Act Comcare is liable to pay her compensation for non-economic loss pursuant to subs 27(1) of the Act. The formula at subs 27(2) applies.
64. Ms Staines completed a Non-Economic Loss Questionnaire on 1 December 2003 (T78). Relevant sections of the form were completed by Dr Tran on 17 December 2003. Dr Tran stated (T78 folio 169):
“Ms Michelle Staines continues to suffer from significantly disabling Panic Disorder. Most recently she has started Paroxetine trial for the containment of her symptoms.”
Ms Staines stated (T78 folios 166-168):
“Restrictions on activity due to anxiety e.g. fear, humiliation and/or embarrassment preventing me from everyday activities such as meeting friends in crowded places, shopping malls etc.
…
Can not travel public transport alone … No energy, no interest in forming friendships or relationships. Unable to cope with work/people in general from past employment or related areas.
…
I am only able to socialise with immediate family… Unable to relate to casual acquaintances.
…
Difficulty interacting with others – confined to home activities such as family BBQ’s etc.”
65. I am satisfied that Ms Staines’ claims cannot presently be substantiated. The evidence of her activities is to the contrary and the medical evidence reveals some improvement in her condition since December 2003.
66. I was informed that the parties had reached agreement as to the scores to be used for the purpose of the calculation pursuant to Part B of the Guide. I accept those scores as appropriate in this case, as follows:
Pain - 0
Suffering - 3
Mobility - 2
Social relationships - 3
Recreation and leisure - 4
Other – 0
67. Ms Staines is entitled to payment of compensation for non-economic loss on the basis of these scores. The amount is to be determined by Comcare on remittal of this matter using the Tables set out at Part B of the Guide.
decision
68. The decision under review is set aside and in substitution thereof the Tribunal decides that Ms Staines has a whole person impairment of 10 percent under Table 5.1 of the Guide to the Degree of Permanent Impairment.
69. The scores to be used for the purpose of calculating her entitlement to compensation for non-economic loss under Part B of the Guide are:
Pain - 0
Suffering - 3
Mobility - 2
Social relationships - 3
Recreation and leisure - 4Other - 0
70. The matter is remitted to Comcare to determine the correct amount that is payable to Ms Staines in accordance with these reasons.
71. As this matter has resolved in favour of Ms Staines, pursuant to subs 67(8) of the Act I order Comcare to pay her reasonable costs of these proceedings as agreed or taxed in accordance with the Tribunal’s Practice Direction.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed:
…………………………………………………………
AssociateDate of Hearing 3-4 August 2005
Date of Decision 5 September 2005
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Mr D Steiner, Capital Lawyers
Counsel for the Respondent Mr B DubéSolicitor for the Respondent Mr T Reilly, Sparke Helmore
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