Suzannah Reinhold and Comcare
[2014] AATA 221
[2014] AATA 221
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0990
Re
Suzannah Reinhold
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 15 April 2014 Place Sydney The Tribunal sets aside the decision under review and instead remits the decision to the Respondent with directions that:
(a) Ms Reinhold suffers a permanent impairment resulting from her injury in October 2009;
(b) The degree of her impairment under the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 to is 20%;
(c) The assessment of her compensation for non-economic loss is in accordance with the following scores under Part 2 of Division 2 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1:
Pain and suffering
Table 1.1 0
Table 1.2 4Loss of amenities
Table 2.1 1
Table 2.2 2
Table 2.3 4Other loss
Table 3.1 0Loss of expectation of life
Table 4 0...........[Sgd].............................................................
Ms N Bell, Senior Member
CATCHWORDS
WORKERS COMPENSATION – compensation for injuries – whether injury permanent – degree of whole person impairment – non-economic loss – decision under review set aside and remitted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 24, 27
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1
REASONS FOR DECISION
Ms N Bell, Senior Member
15 April 2014
Suzannah Reinhold, in the course of her employment with Centrelink in 2009, sustained a psychiatric injury, liability for which was accepted by Comcare. Ms Reinhold has not worked since October 2009 and was medically retired in 2012. She continues to receive compensation payments.
In November 2012 Ms Reinhold made a claim for permanent impairment and non-economic loss, under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988, for post-traumatic stress disorder and depression. Comcare denied liability to pay compensation for permanent impairment and non-economic loss.
ISSUES
Comcare has raised two main objections to an entitlement of Ms Reinhold to compensation for permanent impairment. The first is that she suffers from underlying personality traits which, together with external events, are responsible for the symptoms she currently experiences. The second is that her condition is not stabilised in that she has not yet undertaken appropriate treatment. It follows, Comcare contends, that her condition is not a permanent impairment.
Questions of causation and permanence aside, there is agreement between the parties that Ms Reinhold’s impairment is properly assessed at 20% under the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1.
The issues for me to consider are therefore:
(i)Does Ms Reinhold’s current condition arise out of her employment?
(ii)If so, does she have an impairment that is permanent and likely to continue?
(iii)If so, what compensation should Ms Reinhold be paid?
DOES MS REINHOLD’S CONDITION ARISE OUT OF HER EMPLOYMENT?
The clinical notes made by Ms Samantha May, Ms Reinhold’s psychologist, suggested that the bulk of Ms Reinhold’s discussions with her therapist after an initial period of counselling concerned family issues and ancillary life events. There appeared to be little discussion of what had happened in Ms Reinhold’s workplace. Ms Reinhold generally agreed with this proposition.
I note that both psychiatrists who had examined Ms Reinhold and gave evidence concurrently (Dr Jonathan Phillips and Dr Yvonne Skinner) expressed the view that this type of open ended and loose therapy, based in the past, had not been appropriate treatment for Ms Reinhold and that, rather, a form of cognitive behavioural therapy or dialectical behavioural therapy for a finite period would serve her better. This view somewhat counts against the argument advanced by Comcare that the events at her workplace were of little importance in Ms Reinhold’s therapy, and must have been of little consequence in her illness, if there were few clinical notes about them. I note that neither Dr Skinner, who had been provided with a copy of Ms May’s notes well prior to the hearing, nor Dr Phillips who had access to the notes on the day of the hearing drew any conclusions as to the contribution of events in the workplace to Ms Reinhold’s condition from the contents of the notes.
In concurrent evidence, Drs Phillips and Skinner agreed that Ms Reinhold has some disturbances of personality traits predominantly in the borderline area. They agreed that this amounts to something less than a frank personality disorder. They agreed Ms Reinhold had had a difficult lifestyle with complex formative years and a great deal of responsibility since then. They also agreed that Ms Reinhold had invested heavily emotionally in the work she had done at Centrelink for over a decade and that while there had been tensions in the office at times, particularly in the later part of her career, and agreed that Ms Reinhold had manifested, at various times, depression spectrum symptoms. They agreed she has a personality that is vulnerable to psychological problems. They agreed that her work contributed to her development of major depression in 2009.
Both agreed that, on a background of particular personality traits, when there is a major stressor in a person’s life which is sufficient because of a personality vulnerability to trigger major depressive disorder, the same stressor can amplify and aggravate the personality characteristics and make them more prominent. They agreed there is a complex interplay between the personality and external stressors.
However, while Dr Phillips considered that Ms Reinhold’s experience of events at work served to trigger her decompensation with symptoms of major depressive disorder and that the decompensation continued, Dr Skinner considered that Ms Reinhold’s underlying problems in her childhood and adolescence and the problems she faced in her early adult life were of primary importance. Dr Skinner agreed that that Ms Reinhold had become very emotionally invested in her work but also considered that significant contributing factors included being faced with the pregnancy of her intellectually disabled daughter and concern about how her grandchild would be cared for.
Dr Skinner pointed to Ms Reinhold having taken a period off work to care for her granddaughter and then returning to work and experiencing problems with a new supervisor. She also referred to actions taken and choices made by Ms Reinhold with respect to drinking and accommodation following leaving work and noted they were also stressors. She considered that these choices were the result of her personality traits. Dr Phillips pointed to Ms Reinhold’s history of coping well with work and with caring for her granddaughter prior to the workplace events in October 2009.
I am more inclined to accept the opinion of Dr Phillips as to the contribution made to Ms Reinhold’s major depressive disorder by events at her workplace. Given the agreed triggering effect of external events on a vulnerable personality, Ms Reinhold’s previous decade of coping well with her employment, her agreed emotional investment in her work, the continuation of her depressive condition, and the agreed complexity of the interplay between personality traits and external stressors, I cannot be satisfied that non work events rendered less than significant the agreed contribution of events at work to Ms Reinhold’s continuing major depression. I cannot be satisfied that the contribution of those events at work has been overtaken by later events which, according to Dr Skinner, were the consequences of choices made by Ms Reinhold that were the result of her personality traits. I think the better view is that the contribution made by events at work was significant and that it continues to be significant.
DOES MS REINHOLD HAVE A PERMANENT IMPAIRMENT?
Drs Skinner and Phillips both considered that the treatment Ms Reinhold had received to date was in appropriate and that it would be preferable that she receive a finite period of cognitive or dialectical behaviour therapy to assist her to develop better ways of coping.
Dr Phillips considered that such treatment may give rise to some small improvement and would help to maintain her at her current level of health. He was not optimistic that such treatment would give rise to substantial improvement.
Dr Skinner was more optimistic about the effect of this treatment, but added that Ms Reinhold would need external, non-therapeutic support and a “smoother” life in the sense of an absence of stressful external events. Dr Skinner did not consider that Ms Reinhold would ever function “at a superior level”.
I consider that, while there may be some improvement gained by the treatment suggested by Drs Phillips and Skinner, Ms Reinhold’s condition is permanent in that it is likely to continue indefinitely. Given that Dr Skinner’s prediction of improvement depends on the existence of non-therapeutic supports and a smoother life, none of which can be confidently predicted on the evidence before me, I am inclined to prefer Dr Phillips’ view. There is, of course, no guarantee that Ms Reinhold will obtain and undergo the treatment described by Drs Phillips and Skinner and I have no evidence of the likelihood this.
I consider that any impairment that arises from Ms Reinhold’s psychiatric condition is permanent.
WHAT COMPENSATION SHOULD MS REINHOLD BE PAID?
In order to be paid compensation for permanent impairment, Ms Reinhold must have a percentage of Whole Person Impairment of 10% or more (s 24(7)). On the basis of the expert evidence the parties are in agreement that Ms Reinhold’s impairment is properly assessed under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 at 20%.
It is also agreed between the parties that the appropriate “scores” in respect of an assessment of compensation for non-economic loss under Part 2 of Division 2 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 are:
Pain and suffering
Table 1.1 0
Table 1.2 4
Loss of amenities
Table 2.1 1
Table 2.2 2
Table 2.3 4
Other loss
Table 3.1 0
Loss of expectation of life
Table 4 0
I have no reason to disturb this agreed assessment which is based on the opinions of the experts.
DECISION
The Tribunal sets aside the decision under review and instead remits the decision to the Respondent with directions that:
(d)Ms Reinhold suffers a permanent impairment resulting from her injury in October 2009;
(e)The degree of her impairment under the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 to is 20%;
(f)The assessment of her compensation for non-economic loss is in accordance with the following scores under Part 2 of Division 2 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1:
Pain and suffering
Table 1.1 0
Table 1.2 4
Loss of amenities
Table 2.1 1
Table 2.2 2
Table 2.3 4
Other loss
Table 3.1 0
Loss of expectation of life
Table 4 0
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. .......[Sgd].................................................................
Associate
Dated 15 April 2014
Dates of hearing 20-21 February 2014 Counsel for the Applicant Ms Spain Solicitors for the Applicant Carroll & O'Dea Counsel for the Respondent Mr Kelly Solicitors for the Respondent Sparke Helmore
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