STEVEN GEOFFREY BOCK and COMCARE
[2010] AATA 521
•13 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 521
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2008/3224 & 2009/1710
GENERAL ADMINISTRATIVE DIVISION ) Re STEVEN GEOFFREY BOCK Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member K Bean
Professor P L Reilly AO (Member)Date13 July 2010
PlaceAdelaide
Decision (1) In application 2008/3224 the Tribunal:
(a) sets aside that part of the reviewable decision of 13 May 2008 which determined that the respondent was not liable for the applicant’s condition of adjustment disorder with depressed mood pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 Act (SRC Act); and(b) in substitution for that decision decides that the respondent is liable for the applicant’s psychiatric condition of major depression (in partial remission) pursuant to s 14 of the SRC Act.
(2) In application 2009/1710 the Tribunal:
(a) sets aside that part of the reviewable decision of 26 March 2009 which determined that the applicant had no entitlement to compensation pursuant to ss 24 and 27 of the SRC Act in relation to his claimed psychiatric condition; and
b) in substitution for that decision decides that the applicant suffers a 10 percent permanent impairment pursuant to s 24 of the SRC Act as a result of his compensable condition of major depression (in partial remission) and is entitled to compensation under ss 24 and 27 of the SRC Act accordingly.(3) In relation to both applications the Tribunal:
(a) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(b) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
COMPENSATION – Consequential injury – Whether compensable injury materially contributed to psychiatric condition – Whether permanent impairment – Psychiatric condition in existence in 1996 although not diagnosed until 2007 – As impairment also present in 1996 the “material contribution” test applies – Back injury materially contributed to psychiatric condition – Impairment of 10 percent is permanent – Decisions under review set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5B, 7(4), 14, 24, 27
Abrahams v Comcare (2006) 93 ALD 147
REASONS FOR DECISION
13 July 2010 Senior Member K Bean
Professor P L Reilly AO (Member)
1. The applicant, Steven Geoffrey Bock, suffered a serious injury to his back in the course of his employment in April 1987. At that time he was employed by Australian National Railways (ANR) as a boilermaker/welder. The injury occurred when he jumped down from the roof of a truck onto a trestle table, as a result of which he suffered an L5/S1 disc prolapse. The respondent subsequently accepted liability for that condition and has continued to pay compensation in relation to it.
2. On 30 September 1996, it was determined that Mr Bock had suffered a 20 percent whole person impairment in relation to his compensable injury and he was awarded the sum of $36,200.30 pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
3. On 7 November 1997, he was retrenched from his employment as a contracts administrator with ANR, however he continued to receive incapacity payments and his medical expenses also continued to be paid by the respondent.
4. On 14 August 2007, through his solicitors, Mr Bock requested that the respondent extend liability to include a left foot and a psychiatric condition. Liability for those conditions was subsequently denied by the respondent, both by way of an initial determination and upon reconsideration.
5. On 16 July 2008, Mr Bock applied to this Tribunal for review of a reconsideration decision dated 13 May 2008, which affirmed an earlier determination denying liability under s 14 of the SRC Act in relation to his claim for the conditions of “left foot and adjustment disorder with depressed mood”. On 27 April 2009, he also sought review of the respondent’s decision of 26 March 2009, which denied liability for permanent impairment in respect of both his left foot and psychiatric conditions.
6. Immediately prior to the hearing in this matter, the issues relating to Mr Bock’s left foot condition were resolved by agreement. A consent decision was accordingly made determining that the respondent was liable for Mr Bock’s left foot condition but that Mr Bock had no entitlement to compensation for permanent impairment in relation to that condition.
7. However the questions of liability for Mr Bock’s psychiatric condition and, if liability exists, whether he has any entitlement to compensation for permanent impairment resulting from that condition, remain to be determined by the Tribunal.
legislative scheme
8. The precise provisions which apply to Mr Bock’s claim depend in part upon when he is taken to have sustained his psychiatric condition, being a “disease” within the meaning of the SRC Act. The SRC Act requires this to be determined by reference to when he first sought medical treatment for the disease or the disease first resulted in his incapacity for work or impairment[1].
[1] Section 7(4)
9. If Mr Bock first sought medical treatment for his condition, or first suffered incapacity or impairment as a result of it prior to 13 April 2007, then pursuant to the definition of “disease” in the SRC Act as it existed at that time, he must establish that his condition was contributed to “in a material degree” by his employment[2].
[2] See the definition of “disease” in s 4 of the SRC Act as then in force.
10. However if he first sought medical treatment or suffered incapacity or impairment after that date[3], then he must satisfy the terms of the current s 5B of the SRC Act, which provides as follows:
[3] Section 5A was introduced by Schedule 1 to the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007, which commenced on 13 April 2007.
“5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.”
11. Pursuant to s 14 of the SRC Act, in order for compensation to be payable, it must also be established that the injury suffered by Mr Bock has resulted in, relevantly, incapacity for work or impairment. In order for compensation to be payable in respect of permanent impairment pursuant to s 24, it must also be established that his injury has resulted in a permanent impairment of at least 10 percent assessed by reference to the approved Comcare Guide to the Assessment of the Degree of Permanent Impairment (Second edition) (the Guide).
issues before the tribunal
12. It follows that the issues before the Tribunal are as follows:
(a)whether Mr Bock suffers from a psychiatric condition, and if so, the correct diagnosis of that condition;
(b) if Mr Bock does suffer from such a condition, when he first sought treatment for the condition or when it first resulted in incapacity or impairment;
(c) if Mr Bock does suffer from such a condition, whether it was contributed to in a material degree or to a significant degree by his employment (depending upon whether it is taken to have been sustained before or after 13 April 2007); and
(d) if the answers to both of the above questions is yes, whether he suffers a permanent impairment as a result of that condition and, if so, the degree of that impairment.
the facts
13. Many of the facts relevant to determination of this matter are not in dispute. As indicated above, there is no doubt that Mr Bock suffered a serious back injury in compensable circumstances in respect of which he has continued to receive incapacity payments and have his medical expenses paid. There is also no dispute that he was retrenched in November 1997, and has not worked since. From that time until the present, he has continued to be paid incapacity payments by the respondent.
14. The respondent also does not dispute that Mr Bock suffers from a psychiatric condition, however it contends that this condition was not materially or significantly contributed to by his compensable injury or by his employment. The scope of the factual dispute between the parties is therefore relatively narrow, with the main area of dispute relating to the question of causation.
15. The main factual evidence relevant to the issues in dispute was that of Mr Bock himself, who provided a written statement and also gave oral evidence.
16. In his evidence Mr Bock said that prior to his back injury he had always played sport and had participated in rowing, fishing, shooting, golf, squash and tennis. However, he was unable to participate in any of those activities now.
17. Mr Bock was questioned extensively about a non-economic loss questionnaire which he completed on 16 June 1996 and provided to Comcare in support of his claim for permanent impairment resulting from his back injury. He said that when he completed the non-economic loss questionnaire, he was still working at ANR and was working 6 hours per day on most days, going home at 1.00 or 2.00 pm. He said that he was in a “fair bit” of pain at that time, but was working as much as he could.
18. Asked about the psychological symptoms he described in the non-economic loss questionnaire, he said he had had a big social circle before his back injury but after the injury his social circle had reduced, partly because as his pain had increased his tolerance had decreased. He said that before he commenced his current medication, Cymbalta, his temper was “pretty bad”. He said that the answers he provided on the questionnaire accurately reflected his state of mind at that time.
19. When asked about his retrenchment in 1997, he said he was not at all happy about this and felt at the time that it would be very difficult for him to get another job with his back condition, even though he was only 39 years old. He said for the first 12 months it was “like being on holidays”, however after that he started to get upset that he was not working, even though he knew he could not work with the pain as it was and that he would not be able to work in the foreseeable future. He said after a while he got used to the fact that he could not work, but he found doing the housework at home thankless and unrewarding. He said he would like to go back to work but was not sure what he would be able to do which would be productive.
20. In explaining his current physical capacity, he said he can do some things, but often pays a high price for doing so. For example, he could dig a hole, but if he did this he would expect to spend at least three days in bed afterwards and probably have a headache as well. He said he could walk for three quarters of an hour to one hour at a steady pace, but has little motivation now and rather tends to sit and “do nothing”. If he rests as he needs to and paces himself, he has only a “base line” of pain which is tolerable. However it “doesn’t take much” for it to go to a substantially higher level. He said bending was particularly bad and, for example, he can mow the lawn but emptying the catcher or bending to put fuel in the mower causes him problems. He also finds difficulty in getting comfortable in bed and tends to toss and turn at night. He said once he gets to sleep, he sleeps solidly, but feels he does not get enough sleep and his tiredness makes him very lethargic. He said he does not “do much” and his wife still does most of the housework. He said that nearly every day he would have a sleep sometime during the day.
21. Elaborating as to his level of pain on certain activities, he said that standing hurts and he could only stand for a few minutes before he felt the pain increase. He would ordinarily stand for no more than 5 minutes without changing position to try and decrease the pain. He said if he cannot sit down, the pain will get worse and he will generally end up with a headache. He also mentioned that his weight was currently approximately 115 to 117 kg, whereas prior to the accident it had been about 85 kg.
22. Asked about his mental state, he said that he thought he had been depressed for a long time. He said that he gets teary very easily and is always tired through the day and has no motivation. He said he had nothing to be unhappy about as he gets paid every fortnight, but he feels unhappy nevertheless. He mentioned that one day per week he does woodwork with his father and brothers, but other than that he had nothing to be happy about. He said he found it hard waking up in pain every day and knowing that he will continue to be in pain every day. Whilst his current medication, Cymbalta, had helped his “temper” greatly, he said it had done nothing for his feelings, “only the way I react to them”. However, he also said that he was seeing his psychiatrist, Dr Hilton, once a month and felt that he was obtaining significant benefit from this.
23. In relation to his social life currently, he said that he did not have many friends anymore and did not socialise much outside the home. He had been doing some basketball coaching of children, but said he had given this away a week before the hearing after doing it for 5 years. He said he had had enough of this, but also mentioned that this hearing coming up may have contributed to his decision to give up the basketball coaching.
24. Under cross-examination, it was put to him that he had told Dr Raeside that his mental health had been “okay” until he got retrenched. By way of response, he said that things did get harder after he was retrenched, as his income went down by 25 percent, and his job had been important to him both socially and in terms of providing structure and meaningful activity.
25. It was also put to him that he had had less pain after 1995, but he said this was incorrect. Whilst he had undergone surgery to his lower back in November 1993, after which the pain in his right leg disappeared[4], he still had back pain. He acknowledged that he had had some improvement in his back pain following further surgery in 2005 and said in his statement that “initially I felt a lot better after that surgery”[5]. However, he said that the pain had not changed greatly, although the Cymbalta had improved his ability to deal with it. In retrospect, he stated that he could now see he had problems with “everyone and everything” prior to going on Cymbalta.
[4] Applicant’s statement dated 9 December 2009
[5] Applicant’s statement dated 9 December 2009 [44]
26. It was also put to him that he may feel better if he could obtain some suitable part-time work. In response to this, he explained that he had sought advice at one stage as to whether, if he did obtain some part-time work, this would jeopardise his compensation entitlements. He was advised that it may and for that reason he had not sought part-time work. However, he also added that although he would like to work, he had not worked for 12 years and was not sure that he would be able to. On being prompted further, he stated that if he had been asked this in 1998 or 1999, the answer would have been “yes”, he would have liked to try and return to work. However, the answer now was “probably no”. He was not confident that he could successfully undertake any work, given his pain and lack of motivation. Also, he doubted that anyone would employ him with his physical difficulties.
27. Under questioning by the Tribunal about his use of medication, he said that he takes Nurofen, although he did not feel that it did very much for him. He had also tried patches and Gabapentin which did not work and he said Panadol “does nothing”. In relation to Cymbalta, he said this had done nothing for his pain, but had “stopped him from exploding”. He said he had a small gym at home which he used about once per week. As to his level of pain now, Mr Bock said it was pretty stable and that if he takes it easy, it is not too bad. He said it was tolerable, but “always there”.
28. We found Mr Bock to be an extremely straightforward witness, who did his best to answer the questions which were put to him honestly and without exaggeration. We therefore accept his evidence in relation to the matters referred to above.
29. As there was no other significant factual evidence before us, it remains for us to assess the medical evidence against the above factual background.
the medical evidence
30. We received oral evidence from three doctors, each of whom had also provided written reports. Those doctors were Mr Bock’s treating psychiatrist, Dr Christine Hilton, another psychiatrist who had provided a medico-legal report to Mr Bock’s solicitors, Dr Anaf, and Dr Raeside, also a psychiatrist who had provided reports at the request of the respondent.
Diagnosis
31. The evidence of the psychiatrists was to some extent consistent in that each of them considered that Mr Bock currently suffered from a psychiatric disorder. As for diagnosis, in November 2007 Dr Hilton considered that Mr Bock was suffering from major depression[6]. At the time of preparing a further report in September 2008, she considered his symptoms to be more consistent with a dysphoric disorder than major depression[7]. In her oral evidence before us however, she stated that she now considered that Mr Bock had “major depression in partial remission”.
[6] Exhibit 1, T35/99
[7] Exhibit 2, T45/13
32. Dr Anaf saw Mr Bock twice for the purposes of providing a medico-legal report[8] and concluded that he was suffering from an adjustment disorder[9]. In his oral evidence however, after carefully reading Mr Bock’s answers to the non-economic loss questionnaire in 1996, he stated that in light of these, Mr Bock probably had a depressive disorder in 1996.
[8] Exhibit 1, T33/85
[9] Exhibit 1, T33/89
33. At the time of providing his report dated 20 July 2009, Dr Raeside considered that Mr Bock had a chronic adjustment disorder with depressed mood and he adhered to that diagnosis in his oral evidence.
Causation
34. In relation to the cause or causes of Mr Bock’s psychiatric condition, Dr Hilton and Dr Anaf expressed similar opinions. Both doctors saw the answers given by Mr Bock to the non-economic loss questionnaire completed by him in 1996 as being highly significant in terms of the onset and causes of the condition.
35. Dr Hilton said that the symptoms Mr Bock described in the non-economic loss questionnaire were very similar to those which he described to her on his initial presentation in 2007. In her view, based on those answers, he suffered from a psychiatric condition in 1996, albeit that this was not diagnosed or treated until 2007.
36. She also stated that on the history given to her, she considered the primary cause of Mr Bock’s depressive condition was his back injury and the resultant physical pain. She said that Mr Bock had been talented in the sporting arena, but was now unable to work or participate in any sporting activities he enjoyed. She said that he “feels less of a man” because of what he has lost and has effectively had to give up “everything of meaning to him”. She said his irritability and anger were a consequence of his depression and this manifestation of depression was more common in men. She also said that although at times he had been angry with Comcare, this was a symptom of his illness rather than being causative of it. She maintained that his physical injury and the pain resulting from it were the central pre-occupation for him and the most significant cause of his depression. She acknowledged that it was a great loss to Mr Bock when he could no longer work, but also stated that, based on his answers to the non-economic loss questionnaire in 1996, Mr Bock already had a psychiatric condition by the time he was retrenched in 1997.
37. Dr Anaf agreed with Dr Hilton that the symptoms Mr Bock described in the non-economic loss questionnaire completed in June 1996 were similar to those he was describing 10 years later. In his report, he stated that his condition was “quite clearly caused by the injuries sustained in 1987 and aggravated in 1992, not only by the employment at the time, but also by the ensuing treatment by Comcare in my opinion”[10]. He did not resile from that opinion in his oral evidence.
[10] Exhibit 1, T33/89
38. Dr Raeside expressed a different opinion in relation to causation, although not a markedly different one. In his report of 20 July 2009, he stated in relation to onset and causation:
“As indicated in my earlier report this condition appears to have occurred sometime after the initial physical injury, essentially secondary to the changes in lifestyle, the ongoing workers’ compensation process, and the chronic pain.”
He continued:
“I would attribute the adjustment disorder with depressed mood to the changes in Mr Bock’s lifestyle and functioning as a result of his work-related injury and Comcare matter. Clearly other issues have impacted on this, such as his wife working and him being at home, etc, all of which appear to be part of the larger picture.”
In relation to relative contributions of different factors, he stated:
“It is not possible to attribute an apportioned relative contribution in this matter as they all appear to arise out of the same cause, namely the work injury and subsequent Comcare matter, which has impacted on every aspect of Mr Bock’s life. In essence I would attribute the development of the adjustment disorder with depressed mood 100% to the work related matter, but acknowledging the subsequent effect that this has had on his life generally.”
He continued:
“The physical condition has contributed significantly to Mr Bock’s subsequent psychiatric condition, but primarily through the loss of employment, change in lifestyle, and the extended workers’ compensation process. I do not think that his adjustment disorder with depressed mood is currently directly attributable to his underlying back injury, but rather to the consequences of that physical injury.”
39. At the hearing, he was asked about certain statements made in his first report[11] about the significance of Mr Bock’s retrenchment, and in particular statements in that report to the effect that he considered Mr Bock’s adjustment disorder to be the result of his long-term unemployment. He confirmed that he considered Mr Bock’s retrenchment to have been a “tipping point” and that he probably did not have a psychiatric condition prior to the retrenchment. He was asked about the non-economic loss questionnaire completed by Mr Bock in 1996, but stated that there were no other indicators of a psychiatric disorder at that time. He said that he thought the answers given by Mr Bock were consistent with a man with chronic pain, but not necessarily a psychiatric condition. In any case, he did not consider the answers given by Mr Bock to be sufficient to found a psychiatric diagnosis.
[11] Exhibit 1, T39
40. Under cross-examination, Dr Raeside clarified that he agreed there was nothing to suggest that the retrenchment per se was upsetting to Mr Bock, but finding himself unemployed was significantly upsetting for him. He acknowledged that Mr Bock had been unable to get work elsewhere at the time of his retrenchment and was now unable to obtain alternative work because of his back injury and this was a significant causative factor. Dr Raeside also acknowledged that the symptoms being described by Mr Bock, and which were significant in terms of diagnosis from 2007 onwards, were the same symptoms he was describing in 1996. Dr Raeside also acknowledged that Mr Bock had psychiatric symptoms at that time and that the possibility could not be excluded that he had a psychiatric disorder at that time. He also acknowledged that he could not exclude the possibility that the back injury and resulting pain were the primary causes of Mr Bock’s psychiatric condition.
41. Later in his evidence he explained that on his analysis the pain and restriction caused by the injury had pre-disposed Mr Bock to a psychiatric injury which was then precipitated once he was retrenched. He also explained that a significant factor in his analysis was the fact that prior to his retrenchment Mr Bock was actually working, suggesting a reasonable level of function.
Impairment
42. Each of the psychiatrists who gave evidence before us agreed that Mr Bock currently suffers from an impairment of 10 percent assessed in accordance with the Guide. Dr Hilton qualified her opinion by saying that Mr Bock’s level of impairment would be higher if he was not on his current medication. However, we note that the Guide requires this assessment to be made on optimal medication[12].
[12] See Note 1 to Table 5.1.
43. In relation to permanency, Dr Hilton considered that Mr Bock’s condition was definitely permanent at the current level. She pointed out that he had been under treatment since November 2007 and had been on his current medication for over 12 months and she considered further improvement to be unlikely. She explained that this was partly because the causes of his depression, namely his pain and injury, were permanent and therefore the emotional effects of this were also likely to be permanent. Dr Anaf also thought Mr Bock’s condition was permanent[13].
[13] Exhibit 1, T33/90
44. However, Dr Raeside did not consider the condition to be permanent at this stage. He referred to the fact that Mr Bock had improved on treatment and indicated that on that basis, he would expect further improvement. He thought that if Mr Bock engaged in more activities, this may improve his mood. He also thought it was possible that Mr Bock may improve to the degree that he would not require medication.
contentions
45. Mr Cole for the respondent submitted that the main factor contributing to the development of Mr Bock’s psychiatric condition was his redundancy in 1997, which occurred for reasons unrelated to his injury. He submitted that this led to Mr Bock suffering a loss of self-esteem and feelings of worthlessness, which in turn led to the development of his psychiatric disorder. He submitted that Mr Bock’s frustration with Comcare was also a perpetuating factor, although not a primary cause of the condition.
46. In relation to Mr Bock’s answers to the non-economic loss questionnaire in 1996, which assumed considerable importance at the hearing, he submitted that these should be treated with caution. He pointed out that this questionnaire was a self report and that it was completed for compensation purposes. He contended that it was inappropriate for a diagnosis to be made retrospectively on the basis of this questionnaire and at best, the possibility that Mr Bock may have been suffering from a psychiatric condition at that time should be treated as a hypothesis.
47. Mr Cole also referred to a number of medical records and reports in which Mr Bock had described his pain in recent years in terms which suggested it was not unduly troublesome. For example, he pointed out that Mr Bock told Dr Anaf that he had little pain since the 2005 surgery, he told Dr Hilton that he did not have much pain now and he told Dr Raeside that the pain was “not too bad”. Mr Cole also referred to the fact that the psychiatrists who had examined Mr Bock had not highlighted pain as a source of his psychiatric condition, but had tended to emphasise far more his lack of sense of achievement and feelings of worthlessness and powerlessness.
48. Mr Cole submitted that, if Mr Bock had more meaningful things to do, he would be likely to feel better and that his main problem was the fact that he had lost his job. This had “fed” his emotional state which in turn had been fuelled by his frustrations with Comcare. Mr Cole also submitted there was no evidence that Mr Bock could not have performed any work and submitted that he could undertake some paid work, or at least some meaningful activity beyond that which he was currently undertaking. In relation to Dr Hilton’s evidence, he submitted that this was to some extent built upon a false factual foundation as Mr Bock’s level of pain was not as significant in fact as Dr Hilton appeared to have assumed. He submitted that Dr Raeside’s assessment was more realistic and reliable in this respect and more evaluative overall.
49. In relation to permanent impairment, Mr Cole submitted that the evidence did not establish that Mr Bock’s condition was permanent. In particular, he queried whether the “minor distortions of thinking” which currently form part of his condition (and are one of the criteria for an impairment of 10 percent under Table 5.1) would necessarily continue.
50. Mr Kernot for the applicant essentially agreed with Mr Cole’s characterisation of the issues. He also submitted however that the question of onset of Mr Bock’s condition was extremely important to the Tribunal’s analysis of the causes of that condition.
51. In relation to the non-economic loss questionnaire completed by Mr Bock in 1996, he directed the Tribunal to the “striking consistency” between the opinions of Dr Anaf and Dr Hilton, each of which gave evidence that the symptoms described by Mr Bock in this form were extremely similar to the symptoms he was describing some 10 years later. Both also expressed the opinion that Mr Bock’s answers to this questionnaire strongly suggested that he suffered from a psychiatric condition in 1996.
52. Mr Kernot also pointed out that, even if Dr Raeside’s evidence was accepted in relation to the onset of the condition and the Tribunal was to conclude that Mr Bock’s condition commenced in 1997 following his retrenchment, providing Mr Bock suffered an “impairment” flowing from that condition prior to the commencement of the amendments to the SRC Act in 2007 then, by reason of the application of s 7(4) of the SRC Act, the “material contribution” test was applicable.
53. He submitted that in any event, on the evidence, the main cause of Mr Bock’s condition was the injury itself and what flowed from it in terms of incapacity and pain. He submitted that, if the Tribunal was to accept that proposition, then Mr Bock’s psychiatric condition was clearly compensable.
54. In the alternative, he submitted that Mr Bock’s back injury had substantially contributed to his psychiatric condition such as to meet the significant contribution test, pointing out that it did not need to be the only contributor to meet that test. In relation to the contribution of Mr Bock’s redundancy and unemployment, he submitted that there was no evidence that the redundancy per se led to Mr Bock’s psychiatric condition. Rather he submitted that because of his injury Mr Bock did not have the physical capacity to find alternative employment and it was this which led to his long-term unemployment, thus contributing to his psychiatric condition. In other words, to the extent that Mr Bock’s long-term unemployment contributed to his condition, this in turn was in any event attributable to his injury. Similarly, Mr Kernot submitted that many of Mr Bock’s other difficulties, such as his feelings of worthlessness, his inability to work and his perception that he cannot be a proper husband were all matters which were attributable to the injury and must be encompassed within its effects.
55. Mr Kernot pointed out that the non-economic loss questionnaire was completed before Mr Bock’s redundancy and was for that reason a critical document in that, if the Tribunal accepted that Mr Bock had a psychiatric condition at that time, the redundancy could not have been an originating cause of that condition. He also submitted that, to the extent that there was a choice to be made between the evidence of Dr Hilton and Dr Anaf on the one hand and Dr Raeside on the other, the Tribunal should take into account Dr Hilton’s evidence, as Mr Bock’s treating psychiatrist, that he tends to downplay both his physical and psychological symptomatology. He submitted this may have led Dr Raeside to form an inaccurate impression of Mr Bock’s symptomatology and to underestimate the severity of his condition.
56. In relation to an issue raised by the Tribunal, of the significance of the fact that the respondent had been paying incapacity payments to Mr Bock in respect of his back injury, Mr Kernot orally submitted that this created an estoppel which prevented Comcare from now contending that Mr Bock was not physically incapacitated by reason of his back injury. However, he did not elaborate upon this submission orally and when invited to provide written submissions on the point, later advised the Tribunal that the applicant elected to make no written submissions on this question.
consideration
Diagnosis
57. In light of the medical evidence before us, we have no hesitation in concluding that Mr Bock does currently suffer from a psychiatric condition. There is clearly some doubt as to the precise diagnosis of that condition. However, having regard to her extensive treatment of Mr Bock and superior knowledge of his condition, we consider that Dr Hilton is in the best position to diagnose the condition and we prefer her diagnosis. We are accordingly satisfied that Mr Bock currently suffers from major depression, in partial remission.
58. We should add that we consider it to be within our jurisdiction to determine the matter on the basis of Dr Hilton’s current diagnosis of Mr Bock’s condition. On the authorities, we note that where there has been an “evolution” of diagnosis, the Tribunal has jurisdiction to consider the revised diagnosis of the claimed condition[14]. Furthermore, in a report which was before the delegate at the time of the original determination in relation to liability, Dr Hilton diagnosed Mr Bock’s condition as “major depression”[15]. Therefore that diagnosis of the condition was embraced by Mr Bock’s claim in any event.
[14] See Abrahams v Comcare (2006) 93 ALD 147 at [21]
[15] Exhibit 1, T35/99
Onset
59. As will be apparent from the contentions of the parties outlined above, the question of when Mr Bock’s condition had its onset is of some importance to the resolution of this matter, as it is relevant both to causation and to the test which must be applied to determine liability.
60. We have carefully considered Dr Raeside’s evidence on this question and we accept there are difficulties and limitations involved in attempting to diagnose a psychiatric condition on the basis of answers given to a questionnaire alone. On balance however, we are persuaded by the evidence of Dr Hilton and Dr Anaf that the questionnaire completed by Mr Bock in 1996 establishes that he was suffering from a psychiatric disorder at that time. We are also satisfied that, whatever diagnostic label was applicable to the condition at that time, it marked the beginning of the condition from which he still suffers.
Causation
61. As Mr Bock’s condition developed in 1996, and he was very significantly impaired when he first consulted Dr Hilton in November 2007, we are also satisfied that Mr Bock suffered an impairment within the meaning of s 4 of the SRC Act by reason of his condition prior to 13 April 2007, when the “significant contribution” was introduced into the SRC Act. We therefore consider that the “material contribution” test which applied before the SRC Act was amended, is applicable to determining liability in Mr Bock’s case.
62. As we have concluded that Mr Bock’s condition was in existence by 1996, it also follows that we accept Mr Kernot’s contention that Mr Bock’s redundancy per se was not the cause of the development of this condition. Indeed it also follows that his long-term unemployment was not the cause of its development either, although this appears to have aggravated his condition.
63. Rather it appears to us that, consistently with Dr Hilton’s opinion, the main causes of and contributors to Mr Bock’s psychiatric condition were his back injury, and the pain and limitations which flowed from this. Indeed on the evidence, we have not been able to identify any other significant or material contributors to the condition which were operative in or before 1996.
64. We have accordingly concluded that the pain and restriction flowing from Mr Bock’s back injury in 1987 made a material contribution to his psychiatric condition, in respect of which the currently applicable diagnosis is major depression in partial remission. As there is no dispute that Mr Bock’s back injury was caused by his employment, it follows that Mr Bock’s employment by ANR materially contributed to this condition, by means of the back injury, and the respondent is therefore liable for that condition pursuant to s 14 of the SRC Act.
Impairment
65. In relation to impairment, we note that the only issue is as to permanency, as all three psychiatrists agree that Mr Bock currently suffers from an impairment of 10 percent under Table 5.1 of the Guide.
66. We accept, as Dr Raeside has pointed out, that Mr Bock has only been receiving treatment since 2007 and that his condition has improved in that time. The real question however is whether further improvement can realistically be expected.
67. Relevantly to that issue, we note that Dr Hilton has explored a number of treatment options, with Cymbalta being by far the most effective. However, although Mr Bock’s symptoms have improved on that medication, she does not expect them to improve further. She explained that one of the reasons for this was that the causes of Mr Bock’s depressive condition, being his pain and incapacity, were permanent and were not expected to improve. As the causes of the condition were permanent, she did not consider it realistic to expect any further improvement in his condition beyond what had been achieved in the period she had been treating him.
68. Dr Raeside on the other hand thought that Mr Bock’s physical condition may vary[16], resulting in improvements in his emotional state. This was one of the reasons he gave for concluding that Mr Bock’s psychiatric condition was not necessarily permanent at this stage.
[16] Exhibit 5, p 5
69. As to the likelihood of this however, we consider the assumptions made by Dr Hilton to be more soundly based. Mr Bock has been suffering from his back condition for more than twenty years and has undergone surgery intended to improve the condition on three separate occasions. We note the respondent has also determined that Mr Bock suffers a permanent impairment of 20 percent as a result of the condition. In these circumstances, we consider Mr Bock’s back condition is unlikely to improve to the degree that it will result in improvement of his psychiatric state.
70. Whilst Mr Bock has only been receiving treatment for his depressive condition since November 2007, it is also of some relevance that, on our findings, he has been suffering from the condition since at least 1996. This is also a factor which militates against further improvement in his condition.
71. For these reasons we prefer the evidence of Dr Hilton and Dr Anaf on the question of permanency and we are satisfied that the degree of impairment currently suffered by Mr Bock, being 10 percent pursuant to Table 5.1 of the Guide, is permanent within the meaning of the SRC Act and having regard to the factors referred to in s 24(2) of the SRC Act.
conclusion
72. We have concluded that the respondent is liable, under s 14 of the SRC Act, for Mr Bock’s condition of major depression in partial remission. We have also concluded that Mr Bock suffers from a 10 percent permanent impairment as a result of that condition and is entitled to compensation pursuant to ss 24 and 27 of the SRC Act accordingly.
decision
73. In application 2008/3224 the Tribunal:
(a) sets aside that part of the reviewable decision of 13 May 2008 which determined that the respondent was not liable for the applicant’s condition of adjustment disorder with depressed mood pursuant to s 14 of the SRC Act; and
(b) in substitution for that decision decides that the respondent is liable for the applicant’s psychiatric condition of major depression (in partial remission) pursuant to s 14 of the SRC Act.
74. In application 2009/1710 the Tribunal:
(a) sets aside that part of the reviewable decision of 26 March 2009 which determined that the applicant had no entitlement to compensation pursuant to ss 24 and 27 of the SRC Act in relation to his claimed psychiatric condition; and
(b) in substitution for that decision decides that the applicant suffers a 10 percent permanent impairment pursuant to s 24 of the SRC Act as a result of his compensable condition of major depression (in partial remission) and is entitled to compensation under ss 24 and 27 of the SRC Act accordingly.
75. In relation to both applications the Tribunal:
(a)reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(b) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
and Professor P Reilly AO (Member)Signed: ..............J Coulthard.........................................
AssociateDates of Hearing 3-5 May 2010
Date of Decision 13 July 2010
Counsel for the Applicant Mr M Kernot
Solicitor for the Applicant Palios Meegan & Nicholson
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent AGS
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