TANYA HMELEVSKY and COMCARE
[2009] AATA 497
•2 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 497
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1370
GENERAL ADMINISTRATIVE DIVISION
)
Re TANYA HMELEVSKY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member
Dr J Campbell, MemberDate2 July 2009
PlaceSydney
Decision We affirm the reviewable decision that was made on 29 January 2008 affirming the decision made on 2 November 2007 denying Ms Hmelevsky's claim for permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988.
.................[sgd]........................
Senior Member
Mrs Josephine Kelly
CATCHWORDS
COMPENSATION – Department of Veterans’ Affairs employee – Claim for anxiety and panic disorder - Liability accepted - Claim for permanent impairment – Whether suffers permanent impairment of 10 per cent or more under the Guide – Medical evidence considered - Held no permanent impairment - Decision affirmed
Administrative Appeals Tribunal Act 1975, s 37
Safety, Rehabilitation and Compensation Act 1988, ss 24, 27
Guide to the Assessment of the Degree of Permanent Impairment (2nd edition), Table 5.1
REASONS FOR DECISION
2 July 2009 Mrs Josephine Kelly, Senior Member
Dr J Campbell, MemberSUMMARY
1. Ms Tanya Hmelevsky is an employee of the Department of Veterans’ Affairs (DVA) and has an accepted claim for "anxiety state and panic disorder" (the accepted condition) under the Safety, Compensation and Rehabilitation Act 1988 (the Act). The deemed date of injury is 12 March 2001. She has not worked since 2006.
2. In these proceedings, Ms Hmelevsky seeks the review of a decision made by Comcare on 29 January 2008 denying her claim made for compensation for permanent impairment in relation to her accepted condition pursuant to sections 24 and 27 of the Act.
ISSUES
3. The issues in this case are whether:
1. Ms Hmelevsky has suffered an impairment as a result of her accepted condition that is permanent; and
2. If so, whether that impairment is at least 10% under Table 5.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment, Second edition (the Guide)?
THE GUIDE
4. To understand the arguments put and the consideration of the evidence, it is useful to set out relevant provisions from Table 5.1 of the Guide:
5.1 Psychiatric Conditions
Table 5.1: Psychiatric conditions
% WPI
Description of Level of Impairment
0
Reactions to stressors of daily living without loss of personal or social efficiency;
and
Capable of performing Activities of Daily Living without supervision or assistance.
5
Despite the presence of one of the following employee is capable of performing Activities of Daily Living without supervision or assistance:
· reactions to stressors of daily living with minor loss of personal or social efficiency;
· lack of conscience directed behaviour without harm to community or self;
· minor distortions of thinking.
10
Despite the presence of more than one of the following employee is capable of performing Activities of Daily Living without supervision or assistance:
· reactions to stressors of daily living with minor loss of personal or social efficiency;
· lack of conscience directed behaviour without harm to community or self;
· minor distortions of thinking.
15
Any one of the following accompanied by a need for some supervision and direction in Activities of Daily Living:
· reactions to stressors of daily living which cause modification to daily living patterns;
· marked disturbances in thinking;
· definite disturbance in behaviour.
20
Any two of the following accompanied by a need for some supervision and direction in Activities of Daily Living:
· reactions to stressors of daily living which cause modification of daily living patterns;
· marked disturbance in thinking;
· definite disturbance in behaviour.
25
All of the following accompanied by a need for some supervision and direction in Activities of Daily Living:
· reactions to stressors of daily living which cause modification of daily living patterns;
· marked disturbances in thinking;
· definite disturbances in behaviour.
THE CASE FOR MS HMELEVSKY
5. Mr Dodd, counsel appearing for Ms Hmelevsky, relied on the evidence of Ms Hmelevsky, Dr Teoh, consultant physician and physician in addiction medicine, and Mr Diment, psychologist.
6. In his report dated 20 August 2006, Dr Teoh assessed Ms Hmelevsky as suffering 25% whole person impairment (WPI) according to Table 5.1 of the Guide. However, during his evidence he acknowledged that he had made an error in relation to the supervision criterion in Table 5.1. Taking that into account, he corrected his assessment to 10% WPI.
7. By the end of the hearing, Mr Dodd submitted that Ms Hmelevsky satisfied the criteria for 10% whole person impairment pursuant to Table 5.1. He pointed to evidence of minor distortions of thinking suffered by Ms Hmelevsky as disclosed in the evidence of Dr Teoh, Dr Jurek and Dr Skinner, all of whom are psychiatrists. He submitted that panic attacks suffered by Ms Hmelevsky are sufficient to satisfy the criterion of minor loss of personal or social efficiency in Table 5.1.
8. Further, he argued that Ms Hmelevsky's credit had not been challenged and that there were only minor inconsistencies in her evidence in the dozens of pages of reports from psychiatrists.
CONSIDERATION
9. We have taken into account all the material before us, including two volumes of documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, additional documentary evidence, and the oral evidence of Ms Hmelevsky, Dr Jurek and Dr Teoh, psychiatrists.
10. While we do not think that Ms Hmelevsky was intending to be misleading in the oral evidence she gave, we do not find her evidence about her current symptoms to be reliable. In summary, she said that she cried every day for about an hour at about mid-day, feels hopeless because work is her identity and that she was very sad that she was not working at DVA. She takes 25 mg of seroquil in the morning and 50 mg at about 3 pm. It calms her down a little bit. She takes 500 mg at night but does not feel that it is working for her. Sometimes she cannot sleep and has nightmares about work but sometimes sleeps eight hours.
11. We do not accept that Ms Hmelevsky suffers to the extent she has described in her oral evidence because it is inconsistent with evidence of her other activities. Ms Hmelevsky has been studying Russian at Macquarie University since first semester 2007 and has undertaken two subjects each semester, very successfully. Around the time she began that course, she undertook a three month English grammar course at the University of Sydney which was held on Saturday mornings. She initially enrolled in a diploma course at Macquarie University, but subsequently changed to a degree course which she hopes to complete at the end of this year. We understood her to say that n 2008 she started to study Russian culture as well as the Russian language. Her evidence about the number of hours she spends attending lectures was a little confusing, but we understood her evidence to be that she has two hour lectures on four days a week and sometimes tutorials. She goes to the library to prepare assignments and for exams. She said that she finds university work stimulating and she is proud of her results. She is getting distinctions and is hoping to get high distinctions. She thought perhaps her accepted condition was the reason she had not achieved high distinction results. She is planning to go to travel to Russia as part of her studies. Her goal is to be an interpreter at home.
12. During re-examination she said that when she is doing her university work, she gets up to do exercises, get a drink of water and stretch before working for another hour, but if it becomes too much to will stop.
13. Ms Hmelevsky attends and helps out at the Wesley Mission in Sydney on Fridays and Sundays and attends mass there. She also attends a Catholic club regularly, and a Russian club once a month to listen to two and a half hour lectures on Russian culture and history. She meets other friends occasionally. She has entertained overseas visitors for periods of time.
14. We prefer the evidence of Dr Jurek to the evidence of Dr Teoh. Dr Teoh only saw Ms Hmelevsky once on 17 August 2006. When giving oral evidence in chief, he conceded that he had made a mistake when he assessed her as having 25% WPI. He had not appreciated that part of the criteria to satisfy 25% WPI was needing supervision. He changed his assessment to 10%. Mr Dodd sought to support the 10% assessment during re-examination by putting to Dr Teoh selected symptoms reported by Ms Hmelevsky to Dr Jurek in 2007 and 2008. We do not consider this evidence persuasive.
15. Dr Jurek saw Ms Hmelevsky on two occasions and prepared reports dated 10 October 2007 and 22 August 2008. In her first report Dr Jurek assessed Ms Hmelevsky as having no permanent impairment as a result of the injury. She assigned a WPI of 5% but only as a result of underlying or pre-existing factors. Dr Jurek came to a similar conclusion in 2008. We found Dr Jurek's reports comprehensive and considered. We accept her opinion that Ms Hmelevsky continues to suffer exacerbations and remissions of her chronic anxiety and panic disorder which predates the injury.
16. It is clear from the evidence that Ms Hmelevsky has improved markedly during the more than two years since beginning her university studies. When she saw Dr Jurek in August 2008 her mood was good because she was busy. She had had 10 assignments and two exams in 13 weeks.
17. Medical evidence about Ms Hmelevsky that does not take account of that change in her circumstances is not helpful. Dr Teoh had not seen Ms Hmelevsky since August 2006. Ms Hmelevsky said that she has not seen Dr Tsang, psychiatrist, since 5 November 2007. Dr Tsang’s most recent report in evidence is dated 8 December 2006. Instead, she is now seeing Dr Kafiris, an occupational medicine consultant, injury management, master of occupational medicine, every two or three months except for a couple of missed appointments because of overseas visitors. Dr Kafiris, a general practitioner, prepared a report dated 24 January 2008. He is not qualified to comment on Ms Hmelevsky's psychiatric state and we did not understand Mr Dodd to rely on his evidence.
18. Mr Diment, psychologist, gives Ms Hmelevsky a great deal of support. For example, he accompanied her to the medical panel review carried out by Dr Lewin, Dr Allen and Dr Kafiris in June 2008. He has treated Ms Hmelevsky using cognitive behavioural therapy, tapes, and breathing exercises. She sees him about every two weeks. The most recent report of Mr Diment was dated 23 January 2007. As we have already explained, that does not assist us, given the change in Ms Hmelevsky's circumstances. In any case, Mr Diment does not address the degree of permanent impairment under the Guide.
19. We accept Dr Jurek's opinion that Ms Hmelevsky is very dependent on Mr Diment and that frequent contact may encourage dependency and reinforce maladaptive behaviour patterns.
20. Dr Jurek commented on the medical panel assessment carried out in June 2008 pursuant to s 36 of the Act. It is useful to quote from the report of Dr Lewin, consultant psychiatrist, about that assessment:
The panel noted the accepted condition which was identified as “Anxiety State and Panic Disorder”. That diagnosis was consistent with the panel’s findings. The panel had observed a long-term history of anxiety over several decades. This followed a typical relapsing and remitting pattern. Mrs Hmelevsky had been able to work effectively while still affected by anxiety. She had also required periods of time on leave. She had demonstrated a capacity to benefit from treatment and she had learned to apply treatment strategies to assist her to overcome her anxiety symptoms.
The current psychiatric condition was considered to be relatively mild. This conclusion was based upon several observations. Firstly, Mrs Hmelevsky reported that her symptoms had abated. She also reported that there had been a positive response to treatment, both in the form of medication and in the form of the psychological treatment she had undertaken. The panel observed that Mrs Hmelevsky had demonstrated an ongoing pattern of adaptive functioning. In particular, the panel noted her recent, excellent progress in regard to her studies. This demonstrated a real capacity to concentrate, to organise complex data, to persevere, to overcome difficulties, to work hard in pursuit of tangible goals, to prioritise and to accept responsibility.
21. In our view, while the medical panel did not have to address the question of permanent impairment, those findings support Dr Jurek's opinion.
22. We find that Ms Hmelevsky has no permanent impairment resulting from the accepted condition. She is not entitled to compensation for permanent impairment or non-economic loss.
DECISION
23. We affirm the reviewable decision that was made on 29 January 2008 affirming the decision made on 2 November 2007 denying Ms Hmelevsky's claim for permanent impairment pursuant to sections 24 and 27 of the Act.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member and Dr J Campbell, Member.
Signed: …….[sgd]..……….
Steven Mulipola, Associate
Dates of hearing: 15 and 16 April 2009
Date of decision: 2 July 2009
Counsel for the Applicant: Mr J Dodd
Solicitors for the Applicant: Slater & Gordon
Counsel for the Respondent: Mr M Best
Solicitors for the Respondent: Sparke Helmore
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