State of Tasmania (Department of Health and Human Services) v Roberts

[2001] TASSC 127

[2001] TASSC 127

CITATION:State of Tasmania (Department Of Health & Human Services) v Roberts [2001] TASSC 127

PARTIES:STATE OF TASMANIA (DEPT HEALTH & HUMAN SERVICES)

v
  ROBERTS, Theresa (Terri)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 56/2001
DELIVERED ON:  7 November 2001
DELIVERED AT:  Hobart
HEARING DATES:  16 October 2001
JUDGMENT OF:  Slicer J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claim - Review of determination and reopening of case - Generally - Tasmania - Review of Tribunal ruling - Lump sum payment - Total, permanent and incurable loss of mental capacity - Employee's capacity for employment - Finding of fact of 30 per cent incapacity - Conflicting medical evidence - Tribunal entitled to look to the totality of the evidence when apportioning damages.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss71, 72.

Brugnoni v Hydro Electric Commission (1957) 97 CLR 548; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Malec v J C Hutton Pty Limited (1990) 169 CLR 638, applied.
Aust Dig Workers Compensation [159]

REPRESENTATION:

Counsel:
             Appellant:  H T Foulds
             Respondent:  C J Bartlett
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Bartletts

Judgment Number:  [2001] TASSC 127
Number of Paragraphs:  26

Serial No 127/2001
File No LCA 56/2001

STATE OF TASMANIA (DEPT HEALTH & HUMAN SERVICES)
v THERESA (TERRI) ROBERTS

REASONS FOR JUDGMENT  SLICER J
  7 NOVEMBER 2001

1. The respondent made a claim for compensation pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act") on 23 June 1995, on the basis that she suffered "stress related to work". The claim was accepted and the respondent received weekly payments and expenses. On 8 January 2001, she referred the matter to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") seeking:

"… payment of a lump sum under Item 6 of Section 71, namely a 40% impairment, in respect of injuries I suffered in or about May and/or June 1995."

1. Following a hearing, the Tribunal ordered that:

"… the employer pay the worker $30,022.80 based upon an assessment that the worker has a permanent and incurable loss of 30% of her mental capacity involving inability to work."

The appellant challenges that order only as to the percentage assessment and does not seek review of the findings of permanency of mental incapacity or inability to work.

1. The statutory provisions relevant to the respondent's claim are stated in the Act, s71:

   "TABLE
   No  Injury  No of Units
     or Percentage

   6                Total, permanent, and incurable loss of
                     mental capacity involving inability to

   work  284”

   The Act, s72, permits an assessment to be made in an amount "… as … appears to be proportionate to the degree of injury suffered by the worker."

   The amount awarded by the Tribunal is an accurate calculation of the statutory provision.

1. The grounds of appeal, as amended, claim error by reason that the Tribunal:

"1Failed to have any or sufficient regard to the evidence of Dr C Moore that the Respondent was suffering a 15% to 20% loss of mental capacity involving inability to work.

2Failed to have any or sufficient regard to the medical report and oral evidence of Dr E V R Ratcliffe that the Respondent was capable of undertaking her former duties as a regional discharge planner/co-ordinator if they had still been available to her.

3Failed to have any or sufficient regard to the evidence of Dr N R Rose that the Respondent was suffering a 15% loss of mental capacity involving inability to work which could be reduced to 10% by drug treatment.

4Found, contrary to the weight of all the evidence that the respondent was suffering a 30% permanent and incurable loss of mental capacity involving inability to work."

The grounds of appeal challenge the finding of proportion and could be said not to constitute grievance "in point of law" as required by the Act, s63. Counsel for the respondent disclaimed this argument on the basis that the questions were more readily examinable by reference to discretion rather than jurisdiction. This determination will be made on the assumption that the grounds disclose an aggrievement "in point of law".

But the distinction remains one of degree (Hanlon v McKay Investments Pty Ltd & Anor [2001] TASSC 37). As the High Court pointed out in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493 - 494:

"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds'.  Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury …"

a statement repeated in Liftronic Pty Limited v Unver (2001) 75 ALJR 867.

That test will be applied in the determination of this appeal.

1. The essence of the appeal concerns the findings of the "fact finder".  Although a specialist tribunal or judicial tribunal might be required to observe a higher obligation in relation to disclosure of reasoning than a jury (Liftronic Pty Limited v Unver (supra) and Minister for Immigration and Multicultural Affairs v Yusuf; Re Minister for Immigration [2001] HCA 30), the role of the primary "fact finder" ought be respected. It is within these parameters that this appeal ought be determined.

1. The Tribunal correctly applied the law in relation to the requirement that there be a nexus between the claimed incapacity and the inability to work.  It applied the test stated by the High Court in Brugnoni v Hydro Electric Commission (1957) 97 CLR 548, namely, that the loss of mental powers must relate to the capability to perform work of the nature as that which the person could perform as of the date of the accident or injury.

1. The basis of the appeal is that, on the evidence of the medical practitioners called by both parties, no assessment greater than 20 per cent loss of capacity could have been made. 

1. The evidence of three medical practitioners in the form of written reports and oral evidence was placed before the Tribunal.  The appellant contends that at the conclusion of the cross-examination of each witness, there was a consistency of their assessments which precluded a finding of incapacity greater than 20 per cent.

1. The medical certificate supplied by the respondent in June 1995 was provided by Dr Jones who gave a provisional diagnosis of "adjustment reaction" caused by "stressful work environ (sic)".

1. In November 2000, the respondent was referred to Dr Moore, a consultant psychiatrist practising in Victoria, who examined her at St Luke's Hospital, Launceston.  Dr Moore was retained for the purpose of assessing the claim.  In his report, he stated his diagnosis to be that of "Chronic Major Depression, extant for at least 3, if not 5 years, since 1995".  He was asked to provide an assessment of the level of impairment and advised:

"I can only take her as I found her, ie, without medication as discussed above, and on that basis, using the AMA 2 scales and the Victorian concept of Permanent Partial Loss of Mental Powers as applied prior to 1^st December, 1992, I would assess this lady as having a forty percent level of Psychiatric Impairment, for industrial purposes.

This reflects the severity of the Major Depression which she is suffering, the chronicity of the condition, and the impact which it has had upon her career.  Thus it can be viewed as a mix of psychiatric impairment and also a measure of the impact for industrial purposes."

It was on the basis of this advice that the respondent sought an assessment of 40 per cent disability.

1. During the hearing, Dr Moore told the Tribunal that he had also referred to the American Psychiatric Association Diagnostic Manual (DSM 4), in arriving at both his diagnosis and assessment.  He explained his reference to the Victorian model in the following terms:

"… Yes, well, the model which I have used in this case is a model which existed in Victoria prior to 1 December 92 and it was termed the Permanent partial loss of mental powers under s98.  It was subsequently abolished.  However, it had - it was a useful model because it combined the two factors which I previously described.  It combined - it invited you as a doctor to combine the two factors of impairment and disability.  So not only - so not just to look at impairment in isolation but look at the impact of the impairment upon the person's employability or saleability before the accident and subsequent to the accident or incident.  And this is where I arrived at the 40% level.  Combining the two."

In addition, he stated his reasons for disagreeing with the diagnosis made by Dr Rose, consultant psychiatrist, who gave evidence on behalf of the appellant.  In cross-examination he told the Tribunal of the distinction between impairment and disability in the following exchanges with counsel:

"… Impairment is a medical concept - how disease impacts upon a person.  Disability, on the other hand, or incapacity is the impact of the impairment upon the person's, shall I say, lifestyle including occupational.

Yes.  Now when you made your assessment of 40%?  … Yes?

Did you take both those matters into consideration?  … Yes I did.

And how did they interact in arriving at 40% … Yes.  Well it's by no means an exact science, I don't think anybody has ever pretended in Victoria while it as still extent that it is an exact science.  What you do is you take a level of psychiatric impairment and add to the level of psychiatric impairment the impact industrially.  Now if you want I can run through with you how I arrived at the two separate and then added if that's of any help.

…

All right.  Now what was the percentage you arrived at for impairment? … Well I would have assessed this lady under the American Medical Association scales which are used in Victoria Edition II at between - at approximately 20 to 25% level of impairment.

20 to 25 for impairment? … Impairment - that's the medical concept of impairment, that's the severity if you like - it's a measure of the severity of her depression and then I've added to that a number to reflect the impact which the impairment has had upon her capacity, her employability. 

So in terms of the impact would you say - just taking the impact side of it? … Yes.

Half of it, percentage, which I assume you've assessed at 15 to 20%? … Yes.

You considered in that respect, did you not, her loss of mental capacity insofar as it involved an inability to do the sort of work which she was capable of doing in 1995, would that be correct? … Yes that's correct sir, yes, that is my impact, yes.

Yes thank you.  Now just taking that aspect of it did you form the view that, that percentage or that loss was incurable? … I have previously discussed with the court the extreme difficulty of regressing the process in this case and made it clear that after five years of this condition it's not going to be totally reversed, the best that can be hoped for is some symptomatic improvement."

1. It is clear that he was aware that the methodology was inexact and was attempting to add different components of a mental condition to assess the whole person.  The Tribunal correctly stated a summary of his evidence, but did not consider that he had used a valid method of assessment on the basis that:

"Whereas disability he described as an assessment on a person's ability to perform normal activities as a result of the impairment.  This formula appears to introduce consideration of the overall effects of a mental illness rather than concentrating on the determination of the ability to work."

1. The Tribunal expressed similar reservations of the methodology employed by Dr Ratcliff, the treating psychiatrist, who saw the respondent on a number of occasions following an initial referral in July 1995.  Dr Ratcliff had seen the respondent on five occasions between 27 September 1999 and 25 January 2000.  In his opinion, expressed in a written report of 13 March 2000, he stated:

"It is clear from the work that Mrs Roberts has been able to undertake since her employment in a supernumerary capacity during the last two years or so, that she retains the capacity to undertake research and report-writing tasks at a high level and she would certainly be capable of undertaking her former duties if they were still available to her.  She cannot for physical reasons, unassociated with the injury done her by her employers, return to active nursing work.  Suitable work at the level of intellectual function and responsibility that she had achieved at the time of the initial injury appears to be unlikely to be available to her.  Mishandling by her employers has been so persistent and prolonged that it is unlikely that she would be able to undertake subordinate positions without undue stress.  It could therefore be said that she has a limited capacity for the majority of work within her experience and expertise."

1. He attempted to calculate a percentage impairment by use of a methodology adopted by the Department of Veterans' Affairs, set out in the Guide to the Assessment to the Rates of Veterans' Pensions, 5th ed (GARP V), which he described as:

"… a recognised system of quantifying the unquantifiable widely used in Australia beyond the requirements of the Department of Veterans' Affairs."

1. The methodology involved an assessment of impairment ratings by reference to "Emotional and Behavioural" criteria, together with a separate assessment according to "Lifestyle Effects".  Dr Ratcliff explained his use of the methodology and gave his conclusion that:

"The lifestyle rating is obtained by adding the ratings from Tables 22.1, 22.2 and 22.3 to the lesser of the two lifestyle ratings, 22.4 and 22.5 and dividing the result by four.  This gives a final lifestyle rating of 2.

Garp chapter 23:

Table 23.1 Conversion to Degree of Incapacity:

Impairment rating 31, Lifestyle rating 2, produces a 40% degree of incapacity."

1. The Tribunal repeated its criticism of the methodology employed by Dr Moore and added:

"This is also apparent from the formula used by Dr Ratcliff, (GARP), which considered the impact of the mental illness on a wide range of personal, social, recreational and domestic factors and did not specifically target the employment consideration.  I accept the criticism of both of these methods provided by Dr Rose in his report of the 8^th June 2001 and also in his evidence to the Tribunal."

1. The appellant relies upon the following answers given by Dr Ratcliff in cross-examination to show that on no view of his evidence could it be said that an assessment of 30 per cent was warranted:

"Well what percentage would you put on it? … Well it's not rated by a percentage and I mean, these are ratings which are derived from as much experience as can be gathered, as a rating scale it - putting a percentage on it - saying that a person can't work for 20% of the time and therefore they're only up to 80%, that's ridiculous, it doesn't work.

No.  We're talking here about a percentage of loss of capacity? … Yes.  We're talking a proportion and the scale is devised in, it's not a 1 - 10 scale - it's in large lumps so we're saying if the maximum impairment as far as work is concerned which means the person cannot work is 10, an impairment rating of six means that they've had to modify their work very markedly, it doesn't mean they cannot work - you could very crudely say that 6 out of 10 is a 60% but that's not what's meant by the scale and it would be wrong to infer that it does.

…

But there is an attempt to analogise to that but it must always be a fairly blunt instrument and therefore I don't think any sensible doctor could get on legs under oath and say it's that percentage.  You can only say this is the best estimate that can be made from a well validated rating scale widely used of which I have substantial experience.  That's the most that one can say. 

…

Yes?  … So it would fluctuate around a mean, which would be lower than the original by a substantial degree. 

It would be lower? … Yes.

To what sort of percentage? … Well, that would be at around about the 40% level of former function.  That is the approximate meaning of this measurement.

I think you have said it was 40%, haven't you?  In your report? … Yes, yes.  But that is a mean that it would fluctuate about.  There would be times of better function and times of worse.

All right.  I am a little bit troubled by that because at the top of - just have a look at the top of page 2 of your report, that is E1.  Now you have been treating her since 1995.  That is right? … Intermittently, yes.  

Yes.  And you wrote this report on 13 March 2000.  Just - when had you last seen her before that? … January, 5th and 25th.

Of - in 2000? … In 2000.

So you had seen her twice within - twice in one month.  That is January? … Yes.

…

Well, I was directed towards - directing my thoughts to whether she would be able to do the job she once had.  It was a highly theoretical question because the job no longer existed nor had it for some years.

But, you see, it is not theoretical because that is the test? … Mm.

That is the test? … Of whether she could do her former work?

Yes, precisely.  So what is your final position? … Well, my final position is that if that position still existed and she still occupied it, she would still be able to carry it out.

In other words, she doesn't have any incapacity to perform the duties of her former position? … No, she would have great difficulty in so doing, but it would not be.

…

CHIEF COMMISSIONER:  I think what you are saying, doctor - well, is it what you are saying, is that the mental capacity is there for actually doing the work but you think she may have more difficulty actually working in a pressured environment doing the work? … Yes.

CHIEF COMMISSIONER:  But medically - sorry, mentally she has the capacity to work at that level.  It would only be where it is pressured that she would become anxious and the other things would come in? … And the other things would rare (sic) its head."

1. I do not accept the contention advanced by counsel for the appellant.  Dr Ratcliff was being asked to quantify a percentage.  The condition of the respondent was one of a psychiatric and psychological nature.  Acceptance of variability by Dr Ratcliff did not amount to an expression of opinion that the respondent suffered from a lesser degree of disability. 

1. The appellant called Dr Rose who had been engaged to review the condition of the respondent.  He examined her on 2 September 1999.  It was this examination which, according to the respondent, had caused her to return to Dr Ratcliff.  Dr Rose found that:

"She (was) greatly worrying about her career and of late she has had a recurrence of her sleep disturbance and nightmares as well as depressive and anxiety symptoms.  She has mild, current memory impairment."

His diagnosis was that the respondent "(was) suffering from a chronic mild dysthymic disorder with associated anxiety" and considered that her "mental condition (would) not prevent her from resuming full pre-injury duties".

Following a further examination in June 2001, he maintained his diagnosis of dysthymic disorder.

1. The Tribunal accepted the validity of the legal test used by Dr Rose, in "evaluating the loss of mental power for work".  However, it did not adopt the percentage figure arrived at, stating: 

"Dr Rose suggested a figure of 15% however he did concede that if the worker was offered her pre-injury employment now, this coupled with the exposure to stress, and with her accompanying anxiety, loss of concentration and lessening ability to plan, this might well result in an increase of incapacity to 20%.  In respect of her actual job as a Discharge Co-ordinator his assessment in that regard appears conservative given the impact the lessened efficiency and effectiveness would have on a busy and responsible position."

1. Two propositions can be identified from the above analysis. Firstly, that there were genuine differences between medical witnesses based on methodology and judgment.  The witnesses were attempting to provide an opinion required by the discipline of law by translation of concepts and methodology more suited to the different discipline of medicine.   The philosophy and aims of the two disciplines differ by nature. Secondly, that each opinion was subject to assumptions and qualifications.  They depended on judgment in an area of human conduct which defies precision.

1. The Tribunal was required to make a determination.  It was required to consider the totality of the evidence, not just that given by the medical witnesses.  It was required to assess incapacity for work.  It was obliged to take into account the evidence of the respondent and her partner.  The critique advanced by counsel for the appellant does not take that evidence into account.  The test required by Brugnoni v Hydro Electric Commission (supra), is that of capacity for employment.  The evidence of the respondent was that she had been employed as a Discharge Planning Co-ordinator which, as the Tribunal stated:

"… was a complex position requiring a great deal of communication with various community organisations, problem solving and trouble-shooting in order to achieve satisfactory outcomes for clients."

1. It was the respondent's capacity to perform tasks commensurate with her previous level of employment which the Tribunal was required to assess (Accident Compensation Commission v Hawkins [1992] 1 VR 589). The evidence of non-medical witnesses was important in that determination. The Tribunal acknowledged the difficulties associated with that task when it concluded:

"Doing the best I can I assess the worker's loss of mental capacity for work at 30%.  There is the possibility of improvement with anti-depressant medication but given the reservations expressed by all the doctors this could only be seen as a possibility and I am unable to take that into account."

1. It attempted to determine its assessment by reference to "some form of liberal benchmark" as provided by the decision of FAI General Insurance Company v Morrisson (1993) 2 Tas R 9, considering it to offer "some guidance" while acknowledging that "each case must be strictly assessed on its own facts". It was required to exercise judgment (Malec v J C Hutton Pty Limited (1990) 169 CLR 638 and State of Tasmania v Clark [2000] TASSC 126).

1. I do not accept that the Tribunal was in error in applying the methodology which it used, or in its conclusion.  It might have properly reached a different conclusion, but consistent with the principles stated in Podrebersek v Australian Iron and Steel Pty Ltd (supra), the possibility that a different percentage calculation could have been made is no reason for appellate intervention. 

1. None of the grounds of appeal have been made out.  The appeal will be dismissed.