Tucker and Comcare (Compensation)

Tucker and Comcare (Compensation) [2018] AATA 1251 (10 May 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2016/5762 & 2017/0667

GENERAL DIVISION )
Re: Annemarie Tucker
Applicant

And: Comcare
Respondent
CORRIGENDUM
TRIBUNAL:     Egon Fice, Senior Member
DATE OF CORRIGENDUM:            21 May 2018
PLACE:  Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.each reference to ‘28%’ within the decision, reasons for decision and catchwords be altered to ‘38%’; and
2.at [120], in the final line, delete ‘4.2’ and insert ‘5.7’.

......................[sgd].................................
Senior Member
Division:GENERAL DIVISION
File Numbers: 2016/5762 & 2017/0667
Re:Annamarie Tucker
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:10 May 2018
Place:Melbourne

The Tribunal:
1.sets aside the decision dated 22 September 2016 (application number 2016/5762) and remits the matter to the Respondent with directions that:
(1) the Applicant’s whole person impairment is 10%;
(2) the Applicant’s percentage of non-economic loss is 28%;
(3)Ms Tucker’s entitlement to compensation for non-economic loss be recalculated; and

2.affirms the decision dated 11 January 2017 (application number 2017/0667) denying compensation for household services and attendant care.

..........................[sgd]..............................................
Egon Fice, Senior Member
COMPENSATION – claim for permanent impairment and non-economic loss – claim for household and attendant care services – 10% whole person impairment – 28% non-economic loss – decision on permanent impairment and non-economic loss set aside and remitted with directions in accordance with Tribunal reasons – Applicant able to provide for her personal care and does not reasonably require assistance with household or attendant care services – decision on household and attendant care services affirmed
PRACTICE AND PROCEDURE – evidence – no evidence from any witness who has observed the Applicant’s degree of incapacity arising from psychological injury – medical practitioners who have treated Applicant relied exclusively on her self-reporting of what she can and cannot do – Tribunal asked to form a view on credibility of applicant’s evidence – demeanour in the witness box not necessarily indicative of the truthfulness of a witness – objective evidence against which an applicant’s evidence can be compared is preferable
LEGISLATION
Administrative Appeals Tribunal Act 1975; s 37
Safety, Rehabilitation and Compensation Act 1988; ss 4, 14, 16, 27, 28, 29, 38, 62 & 64
CASES
Imperial Bottleshops Pty Ltd v Federal Commissioner of Taxation (1991) 22 ATR 148
Johnson v Johnson (2000) 201 CLR 488
McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284
Re Tucker and Comcare [2014] AATA 181
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(in liquidation) and Others (1999) 160 ALR 588
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326
SECONDARY MATERIALS
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)
Loretta Re, ‘Oral v. Written Evidence: “The Myth of the Impressive Witness”’ [1983] 57 The Australian Law Journal 679
Olin Guy Wellborn III, ‘Demeanor’ (1991) 76(5) Cornell Law Review 1075
REASONS FOR DECISION
Egon Fice, Senior Member
10 May 2018

Ms Annamarie Tucker commenced employment with the Department of Defence (Defence) in 2005. In October 2011 she lodged a claim for workers’ compensation pursuant to s. 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for adjustment disorder with mixed anxiety and depressed mood. On

4 January 2012 Comcare denied Ms Tucker’s claim.
Ms Tucker sought reconsideration of Comcare’s decision and on 7 February 2012 a Senior Review Officer notified Ms Tucker that her reconsideration request was unsuccessful.
Ms Tucker then lodged an application seeking review by this Tribunal on 29 February 2012. On 3 April 2014, the Tribunal found Ms Tucker had suffered an adjustment disorder with mixed anxiety and depressed mood which was contributed to in a significant degree by her employment. She was not to be denied compensation on the ground that her injuries were suffered as a result of administrative action (Re Tucker and Comcare [2014] AATA 181).
On or about 16 September 2015 Ms Tucker lodged a claim with Comcare seeking compensation for permanent impairment and non-economic loss. In a letter dated 16 June 2016 Comcare informed Ms Tucker that she suffered from 10% degree of permanent impairment for her accepted psychiatric condition. The Comcare Delegate also found that Ms Tucker was entitled to a payment for non-economic loss under s. 27 of the SRC Act.
On 23 August 2016 Ms Tucker’s solicitor, Mr C Hardman, wrote to Comcare requesting reconsideration of the 16 June 2016 determination. Mr Hardman referred to the opinion of Associate Professor Peter Doherty, a psychiatrist who assessed Ms Tucker’s level of impairment at 25% using Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) (the Guide).
On 22 September 2016, upon reconsideration, Comcare informed Ms Tucker that while it considered that the 10% whole person impairment (WPI) was correct, it reduced the determination under review regarding non-economic loss for pain, mobility and social relationships. Having come to the decision that it did, implicit in that decision is that Ms Tucker is entitled to compensation for permanent impairment and non-economic loss and the only question which arises is whether the percentage WPI was correct. That percentage may be 0% even though Ms Tucker has a permanent impairment.
I say this because in its Statement of Issues, Facts and Contentions, Comcare states I need to consider whether Ms Tucker continues to suffer the effects of her accepted psychiatric condition and, if so, whether it results in any permanent impairment. With respect to Sparke Helmore Lawyers, who prepared Comcare’s Statement of Issues, Facts and Contentions, that is not an issue which arose on reconsideration of the primary determination. In her reasons given for the reconsideration determination, the Review Officer said:
The issue to be decided in this reconsideration is whether you are entitled to compensation for permanent impairment and non-economic loss in respect of your psychiatric condition and if so, what the degree of that impairment is. Section 24 of the SRC Act states that compensation is not payable unless the impairment is at least 10% when assessed under the approved Guide.
Your solicitor considered that you should be awarded 25% permanent impairment based on A/Prof Doherty’s report.…
…
I then need to consider, whether the 10% WPI rating determined was a correct reflection of your impairment for your compensable condition.
Whether an employee is entitled to compensation is a different question to whether that person has a permanent impairment. The entitlement to compensation only arises where the employee has a WPI percentage of at least 10%.
Clearly, whether Ms Tucker continued to suffer the effects of her accepted psychiatric condition and whether that resulted in any permanent impairment was not a question determined by the Review Officer. Given that this Tribunal’s jurisdiction is confined by

s. 64 of the SRC Act in the following way:
(1)Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
…
and that a reviewable decision is a decision made under s. 38(4), or s. 62 of the SRC Act which deals with the reconsideration of determinations, the Tribunal is limited to determining whether the reconsidered determination was the correct or preferable decision. That decision plainly does not include those issues to which I have referred above.
On 27 October 2016 Ms Tucker lodged with the Tribunal an application seeking review of the reconsidered decision made on 22 September 2016. On her application form Ms Tucker indicated that her degree of WPI should be assessed at a higher percentage and she should have been awarded a higher score for non-economic loss. That matter was allocated application number 2016/5762.
Ms Tucker also applied for compensation for medical expenses (psychological treatment) pursuant to s. 16 at the SRC Act and the provision of household services or assistance (including gardening) pursuant to s. 29. On 10 October 2016 Comcare refused Ms Tucker’s claim for the continuation of psychological services and household services. Following a request for reconsideration, Comcare determined on 11 January 2017 that Ms Tucker had no present entitlement to psychology treatment or household and gardening services.
On 6 February 2017 Ms Tucker lodged a second application seeking review of the 11 January 2017 determination. That application was allocated application number 2017/0667. At the commencement of the hearing, Mr Hardman confirmed that Ms Tucker no longer pursued the s. 16 claim for psychological services but her claim pursuant to

s. 29 remained.
The issues I am required to determine are what the WPI should be for Ms Tucker’s mental injury and the level at which her non-economic loss should be assessed. I also need to consider whether it is reasonable that Ms Tucker be compensated for household and attendant care services pursuant to s. 29 of the SRC Act.
THE PERMANENT IMPAIRMENT GUIDE
Section 28 of the SRC Act deals with the Approved Guide. Relevantly, it provides:
(1)Comcare may, from time to time, prepare a written document to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a)criteria by reference to which the degree of permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c)methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
(2)Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
…
(5)The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
(6)In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.
The current Guide is Edition 2.1. The second edition of the Guide was revoked on and from 1 December 2011 and Edition 2.1 of the Guide applies from that date (page X of the Guide). Part 1 deals with claims for permanent impairment other than defence-related claims.
DEGREE OF WPI
Impairment is a term defined in s. 4 of the SRC Act in the following way:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or any bodily system or function or part of such system or function.
Chapter 5 of the Guide deals with psychiatric conditions. The introduction to Chapter 5 states that the assessor must have regard to the principles of assessment and the definitions contained in the glossary of that document. Relevantly, at clause 7 in Part 1, which sets out the principles of assessment, the Guide states:
Most tables in Part 1, Division 1 provide impairment values expressed as fixed percentages. Where such a table is applicable in respect of a particular impairment, there is no discretion to choose an impairment value not specified in that table. For example, where 10% and 20% are the specified values, there is no discretion to determine the degree of impairment is 15%.
For the purposes of Chapter 5 of the Guide, activities of daily living are those set out in Figure 5-A of the Guide. Alongside those activities are examples although, as the Introduction states, the examples are not exhaustive and should not be seen as a substitute for assessor discretion when making decisions about impairment ratings. The Table is as follows:

Activity Examples

Self care, personal hygiene Bathing, grooming, dressing, eating, eliminating.

Communication Hearing, speaking, reading, writing, using keyboard.

Physical activity Standing, sitting, reclining, walking, stooping, squatting, kneeling, reaching, bending, twisting, leaning, carrying, lifting, pulling, pushing, climbing, exercising.

Sensory function Tactile feeling.

Hand functions Grasping, holding, pinching, percussive movements, sensory discrimination.

Travel Driving or travelling as a passenger.

Sexual function Participating in desired sexual activity.

Sleep Having a restful sleep pattern.

Social and recreational Participating in individual or group activities, sports activities, hobbies.

Table 5.1 in the Guide sets out the WPI against a description of the level of impairment. There are also Notes to that table which must be taken into consideration as they contain a number of relevant definitions for the purposes of the Guide.
Before going to the relevant medical evidence, it may be helpful to set out the 10% and 25% WPI descriptions of level of impairment found in table 5.1 of the Guide.
10% WPI
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 stresses of daily living with minor loss of personal social efficiency
>         lack of conscience directed behaviour without harm to community or self
>         minor distortions of thinking.
25% WPI
All of the following accompanied by a need for some supervision and direction in activities of daily living:
>reactions to stresses of daily living which cause modification of daily living patterns
>         marked disturbances of thinking
>         definite disturbances in behaviour.
There are numerous medical reports which have been provided on behalf of both parties pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Although Ms Tucker suffered her injury on 23 March 2011 and a significant number of medical reports appear in the s. 37 documents lodged by Comcare, most of those deal with the relationship of her mental injury to her work with Defence. Some also deal with Ms Tucker’s prognosis which, as early as 2012, indicated ongoing treatment would be required. For example, on 22 August 2012 Dr N R Rose, a psychiatrist, examined Ms Tucker and said that she would need treatment for at least one year and perhaps for much longer. At that time, she was totally unfit for any work.
One of the difficulties I experienced in making the assessment in this case arises from the fact that, other than Ms Tucker, I had no evidence from any other person who observed the difficulties she claimed to experience as a consequence of her psychological injury. A number of family members and friends have observed the degree of her incapacity arising from her mental injury and therefore could easily have reported on what they have observed. Unfortunately, for unexplained reasons, no such evidence was given.
The medical practitioners who have either treated her or examined her have relied exclusively on her account of what she can and cannot do. Clearly those practitioners who treated her have simply accepted what she said, as is their duty. Those practitioners who examined her for the purposes of this proceeding in the Tribunal and provided independent expert opinions about her condition, have only had a very limited opportunity to observe her in the course of their consultations.
Effectively, I was asked to observe Ms Tucker in the witness box and form an opinion about the credibility of her evidence. I have pointed out on a number of previous occasions, that is a wholly unreliable means of determining which evidence from a witness should be accepted and which should not.
As I explained to Mr Hardman in the course of the hearing, I do not hold the view that the truthfulness of a witness can be determined simply by his or her demeanour in the witness box.Doubts about the ability of judges to assess the honesty of a witness have been expressed by the High Court at least from, and possibly earlier than, 1979 in McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284. Murphy J said, at 323:
… In some cases a tribunal may conclude that a witness is, or is not, an honest witness. It is not required to do so. In civil cases such as this, it is generally undesirable to express such a finding in a proceeding which after all is to be decided on the balance of probabilities. Tribunals should not be encouraged to make findings that witnesses are honest or dishonest. In some cases, the evidence may point to such a conclusion. Even in these cases, assessment is often based on the demeanour of the witness and intuitive perception. The supposed special capacity of judges to decide the honesty of witnesses from demeanour and intuitive perception has never been established, and is, I suspect, grossly overrated.
In an article entitled Oral v. Written Evidence: The Myth of the "Impressive Witness" by Loretta Re, B.A., LL.M., Dip. Ed., published in December 1983 in volume 57 of The Australian Law Journal, the author referred to a statement made by Lord Devlin where he said:
The great virtue of the English trial is usually said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether or not he is telling the truth. I think that this is overrated.… I would adopt in their entirety (this being the highest form of judicial concurrence) the words of Mr. Justice MacKenna: "I question whether the respect given to our findings of fact based on the demeanour of the witness is always deserved. I doubt my own ability and sometimes that of other judges, to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or natural timidity? For my part I rely on these considerations as little as I can help."
Kirby P, as he then was, in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 said at 348:
The cases seem to treat as axiomatic the proposition that a trial judge can reliably assess the credibility of a witness simply on the basis of his or her demeanour in the witness box. But it should not be taken for granted. Indeed, recent scientific studies cast doubt on the correctness of this view:… One might well agree with Lord Atkin in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 L1 L Rep 140 at 152 that "an ounce of intrinsic merit or demerit in the evidence, that is to say, the comparison of evidence with known facts, is worth pounds of demeanour"…
When on the High Court, Kirby J expressed a similar view in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(in liquidation) and Others (1999) 160 ALR 588 where he said at 617:
There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new.… Nowadays, most judges are aware of the scientific studies which cast doubt on the correctness of this assumption.

In Johnson v Johnson (2000) 201 CLR 488, Kirby J said at 505-506:
In earlier times, great confidence was placed in the capacity of adjudicators to discern the truth on the basis of their impressions of witnesses. However, the trend of modern authority has cast doubts on that supposedly unique perceptiveness (96). That is why many adjudicators now rest their decisions, so far as they can, on indisputable facts, contemporary documents and the logic of the circumstances, rather than mere impressions. This is a desirable development (97).
Finally on this topic, I should refer to an article entitled Demeanor by Olin Guy Wellborn, the William C. Liedtke, Sr. Professor of Law and Associate Dean for Academic Affairs at The University of Texas School of Law, published in volume 76 of the Cornell Law Review in 1991. He concluded, at page 1104-1105:
If ordinary people in fact possess the capacity to detect falsehood or error on the part of others by observing their nonverbal behaviour, then it should be possible, indeed easy, to demonstrate such a capacity under controlled conditions. Over the past twenty-five years, a large number of experiments involving thousands of subjects have searched for this capacity. With remarkable consistency, the experiments have shown that it simply does not exist. To the extent that people can detect lying or erroneous beliefs in another, they do so primarily by paying close attention to the content of what the other says, not by observing facial expression, posture, tone of voice, or other nonverbal behaviour.
In my opinion, there is no substitute for objective evidence against which an applicant’s evidence can be compared to measure the degree of accuracy of that evidence. While I do not ignore the oral evidence given by an applicant in the witness box, it is, necessarily, of a self-serving nature. It must be treated with some caution (see Imperial Bottleshops Pty Ltd v Federal Commissioner of Taxation (1991) 22 ATR 148 at 155).
In her written statement of evidence dated 12 October 2017 Ms Tucker set out those matters which gave rise to her claimed significant impairment. In a number of broad statements, Ms Tucker said she could no longer function the way she could prior to the March 2011 incident. She found the claim process and in particular having to attend the Tribunal in 2014 and again in 2017 to be very stressful. It made her feel anxious. She said she could no longer look after herself in the way that she used to. She lived at home and had been single since 1983 when she was divorced. She had two adult children, her son being a reasonably regular visitor to her home.
Ms Tucker described experiencing physical pain every day and all over, but particularly in her shoulders, neck and back. However, those conditions do not appear to be related to any work incident. She attended her General Practitioner (GP), Dr Philip Hammond on 12 September 2016 complaining of arm pain and paraesthesia. He diagnosed cervical spondylosis. I had in evidence an MRI scan conducted on 14 September 2016 which disclosed significant problems with her cervical spine. Dr M Pang, who provided a report on that scan, concluded:
Cervical spondylosis, of moderate severity at C6/7. Mild central canal stenosis. Mild cord effacement.
Multilevel right-sided facet joint arthropathy at C3/4 to C5/6.
Multilevel foraminal stenosis, moderate to severe on the right sided C3/4 and moderate at C5/6. On the left, moderate C7/T1 foraminal stenosis compresses the left exiting C8 nerve.
Following the MRI, Ms Tucker attended Dr Hammond on 14 September 2016. Dr Hammond prescribed Celebrex and noted she may have to be referred to the Austin Hospital if her condition worsened. Ms Tucker again attended Dr Hammond on 15 September 2016 with neck pain and he noted she was still seeing her psychologist regarding anxiety and depression.
I had in evidence a report from the emergency department of the Austin Hospital which she attended on 22 September 2016 complaining of three weeks of left neck pain radiating to the left arm and worsening on neck movement. The report states there was “no acute injury or any previous injury or any chronic rheumatology disorder.”
In her witness statement Ms Tucker said that pain limited her ability to be active when in her home or outside and made her feel less motivated. She said she experienced physical pain every day.
The difficulty with Ms Tucker’s physical condition is that it did not arise out of or in the course of her employment with Defence. Despite that, it has been raised as a factor which I should consider both when regarding WPI and non-economic loss. Although I accept that Ms Tucker experiences significant physical pain from her cervical spine condition and that it probably impacts on some of the activities of daily living, I find it is not a consideration which I must take into account for the purposes of her compensation claim. The finding that Ms Tucker has a permanent impairment relates only to her mental condition. I should also add that the Glossary to Part 1 of the Guide states:
Pain means physical pain.
MS TUCKER’S MENTAL CONDITION
There are numerous reports from various medical practitioners providing opinions as to Ms Tucker’s mental condition at particular points in time. Given that her injury developed as a consequence of a number of incidents which occurred while at her place of employment with Defence in 2011 and it is now more than six years since that time, it is reasonable to expect that her mental condition may have altered since the earlier reports. Furthermore, her ability to cope with her mental condition may also have altered with the passage of time. For those reasons, I propose to only deal briefly with the earlier reports and place more emphasis on more recent examinations of her mental state.
Dr D Felman, a psychiatrist, examined Ms Tucker in June 2012. She diagnosed Ms Tucker as having had a major depressive episode and panic disorder and agoraphobia. Dr Felman described Ms Tucker’s mental state in the following way:
… She appeared tired and worn out. She displayed limited eye contact. There was no evidence of psychomotor retardation. Her affect was dysphoric and distressed with limited reactivity. This was appropriate to content.… There was no evidence of a formal thought disorder. Thought content was preoccupied with themes of persecution by the workplace. She was suspicious regarding the motives of those at work. There was evidence of nihilistic thinking with thoughts that she could be dying. There were no frank psychotic symptoms.… She had partial insight into her depressive illness but limited insight into her cognitive distortions.
Cognitively Ms Tucker was able to concentrate on the interview process. The Montréal Cognitive Assessment Tool was administered and she scored 26 out of 30. Of note she performed executive functioning without difficulty. Her five-word recall was five out of five. She demonstrated difficulties in the area of retention, finding it difficult to repeat sentences and recall numbers.
…
On the basis of the information available to me, I considered that Ms Tucker continues to suffer from a Major Depressive Episode in addition to significant anxiety.… My prognosis regarding her ability to return to the Department of Defence in a sustainable manner is significantly guarded. However, further treatment is required.
Dr Rose assessed Ms Tucker in August 2012. He diagnosed Ms Tucker as suffering from a severe adjustment disorder with mixed anxiety and depressed mood. He also added that Ms Tucker had a pre-morbid and pre-injury obsessional personality. At that time, Dr Rose described her prognosis as being uncertain. He suggested that Ms Tucker “remain under the care of her psychiatrist and psychologist for at least another year and perhaps for another year or two beyond that.”
Dr A Rodda, a psychiatrist who treated Ms Tucker following her mental injury, reported on 26 September 2014 that Ms Tucker suffered from the original diagnosed condition of adjustment reaction with mixed emotional features. She said the condition was characterised by multiple symptoms of distress and inability to function adequately.
Dr Felman again examined Ms Tucker on 1 September 2014 and provided a report. At that time she had been prescribed Avanza, an antidepressant. She was having some difficulty with the side effects from the drug. Ms Tucker apparently told Dr Felman that her motivation had improved since a successful hearing in this Tribunal and that she was better able to look after her health and her house. She apparently provided the example of pulling out the vacuum cleaner instead of just tidying a room. However she was unable to complete vacuuming due to fatigue. Ms Tucker reported feeling disconnected from people and had difficulty talking to people. She felt safest in the confines of her home. However, she was able to venture out more often than she had in the past. Ms Tucker said she was not in a current relationship but was keen to meet someone. She also said she saw her grandson twice per week, gaining significant enjoyment from that contact. Dr Felman’s diagnosis was chronic adjustment disorder with mixed emotional features.
Dr J Poznanski, a psychologist, commenced counselling Ms Tucker on 3 May 2014. In a report dated 10 October 2014 Dr Poznanski said that Ms Tucker was referred to him from her GP, Dr Hammond. He described Ms Tucker as experiencing anxiety and depression at moderate levels.
Dr Rose conducted another assessment in November 2014, providing a report dated 17 November 2014. He described that Ms Tucker had been quite obsessional with the presence of paranoid features as a result of lack of trust and expectation of not being believed. She had an excessive sense of justice in accordance with her own beliefs. She appeared to be quite rigid and unable to accept any view other than her own. She was anxious and depressed but the range of affect was normal. Objectively, cognition, memory and orientation were normal but there were mild deficits of concentration.
Dr Rose described Ms Tucker’s condition as having improved to some extent. She was more mobile and more able to get out of the house. Nevertheless, Dr Rose was of the opinion that Ms Tucker remained considerably impaired and that she would not be fit for any employment despite having had psychiatric treatment for a number of years. Dr Rose was of the view that her personality had been a significant contributing factor to her strong sense of victimisation. He again diagnosed Ms Tucker as suffering from chronic adjustment disorder with mixed anxiety and depressed mood.
After Dr Rodda retired, Dr Hammond referred Ms Tucker to Associate Professor Varma. In accepting the referral from Dr Hammond, Dr Varma understood Ms Tucker was referred for ongoing management of adjustment disorder with PTSD. That appears to be the first mention of PTSD in the medical documents. It is unclear how that diagnosis came about although it may have come from Dr Rodda as it is mentioned in a Clinical Panel Review conducted on 25 November 2014.
Dr B Spence, a psychiatrist, examined Ms Tucker in March 2016 at the request of Comcare and provided a report dated 22 March 2016. When asked about her current complaints and symptoms, Dr Spence recorded the following responses:
Ms Tucker said “some days I’m really good, some days I’m not good at all”.…
She says she becomes overwhelmed, notices that her chest gets tight and that she has difficulty breathing. She says she is frequently exhausted.
… She said that at these time she can feel as if she is “wrapped in barbed wire”. Her description of the frequency of these symptoms was inconsistent. At first Ms Tucker said these events occur a few times per day to once a week. Later on in the consultation she contradicted this and said that “last month this happened a few times”.
…
Ms Tucker said she does not carry around tablets or sedatives to ward off an attack [panic attack], as people often can be fearful of having panic attacks. Ms Tucker says she prefers to carry her phone in order to ring her children if she becomes more anxious. Ms Tucker says she prefers to stay at home and describes feeling more happy and content within the house. Ms Tucker said she is able to drive a motor vehicle for up to 10 to 15 minutes from her house.
Ms Tucker said that in between these episodes she can feel “feel quite good”.
She also described experiencing a high level of background anxiety. Nevertheless, she describes long-standing fatigue and muscular tension. Ms Tucker says she has not slept well for many years and frequently has bad nights. She says she sleeps worse if she has had a reminder of the workplace that day. She described intermittent initial delay, and frequent waking and difficulty settling back to sleep that continues.
…
Ms Tucker did not present as consistently flat or depressed. She described enjoying cooking and preparing meals at home. She expressed a desire to complete a course in air-brushing. She expressed discontent that the insurer would not pay for this course. She described a desire to be able to do something creative. Ms Tucker said she intermittently feels hopeless but denied any active suicidal ideation, plan or intent. Ms Tucker said a time she can feel like a burden to her children. Ms Tucker described feeling less pessimistic than she had in the past.
When asked about her past medical history, Ms Tucker said she had no active medical problems. Dr Spence then asked Ms Tucker about her previous illnesses, including cervical dysplasia in 2011. Dr Spence said:
Ms Tucker appeared somewhat unsettled by my enquiry about this and said “it’s all been resolved”.
Dr Spence also said Ms Tucker continued to smoke cigarettes, approximately 10 to 12 cigarettes per day and she drank alcohol occasionally and socially.
Dr Spence described Ms Tucker as neatly dressed. She attended the appointment on time and had an organised folder of documents with her. Dr Spence reported it was difficult to get a clear history from Ms Tucker around recent events and that she described an ongoing sense of injustice about the workplace. There was a degree of entitlement and attribution and blame upon the workplace for her difficulties. Significantly, Dr Spence said there were no consistent depressive themes of helplessness, hopelessness or suicidal ideation. Dr Spence also said that as with any practitioner, he suspected that the way Dr Rodda met and formulated Ms Tucker’s difficulties was coloured by her own personal experience.
In response to a question which asked what the diagnosis was, Dr Spence said:
It is difficult to give a firm diagnosis for Ms Tucker. I am in general agreement with the previous reports of Dr Dielle Felman and Dr Norman Rose. I think she is best formulated as experiencing a Chronic Adjustment Disorder with mixed emotional features. Ms Tucker described some events that may be consistent with flashbacks. However I do not think she meets for criteria for post-traumatic stress disorder.
Dr Spence reported that Ms Tucker described ongoing resentment and anger to the workplace and in fact remarked that she was still being bullied. When asked for details of this Ms Tucker was not able to describe how this bullying was occurring. As for a prognosis, Dr Spence was of the opinion that Ms Tucker’s condition was likely to be ongoing intermittent anxiety and poor functioning. He described Ms Tucker as having ongoing adjustment disorder and that she had not functioned as well within the past four years.
Although Dr Spence reported there was no suggestion Ms Tucker was voluntarily exaggerating or displaying symptoms inconsistent with the claimed condition, he found it difficult to get a clear history and said there was a possibility that she had overstated her symptoms at times.
When asked about the need for household help, Dr Spence referred to the assessment by Dr Felman, that Ms Tucker described doing more gardening. Dr Spence was of the opinion that Ms Tucker’s mental state had settled more when compared with previous assessments. Dr Spence said:
… In my opinion there is no psychiatric contraindication to the worker being able to complete her own gardening and cleaning. The worker has managed to be responsible for her own shopping and paying bills. In my opinion, these daily activities could be used with encouragement from her psychologist, to increase her function and independence. I considered that some basic encouragement to get out of the house, walk regularly and maintain interaction with friends and family is vitally important.
Dr Spence assessed Ms Tucker as having 10% WPI. He based his assessment on the following:
Ms Tucker does not have a set routine and retires to bed at varying times. She has purchased a light in order to read books at night, but has not yet been able to engage with this. She gets up at a variable time each morning. She does not shower everyday but makes coffee for herself most mornings.
Ms Tucker no longer takes public transport and attended the assessment by taxi. Ms Tucker says she drives her motor vehicle in order to complete shopping in Ringwood, attending the Target Square Shopping Centre. She does shopping for the full week at a time at Aldi or Coles.
At the moment she shares cooking duties with her son. She described enjoying cooking and remarked “it’s fun”. Ms Tucker said she prefers cooking vegetarian food. She says she does not follow recipes, and prefers to cook intuitively. She said she is able to enjoy these activities if she is not tired and stressed.
Ms Tucker pays her utility bills online using BPAY. She uses the internet or a computer. She occasionally checks Facebook. Ms Tucker is independent of self-care. Ms Tucker is able to drive a motor vehicle for trips up to 10 to 15 minutes from home. She is reluctant to drive further distances.
Ms Tucker says that she now has a much smaller group of friends and prefers to keep her life private. She described a degree of shame about a mental health and the incident that occurred in the workplace. She keeps up with both of her children, and occasionally sees her grandson who is now in high school. She has visits from one old friend from work. Occasionally other friends drop in for one hour. She speaks to her niece in England on Facebook occasionally.
Dr Spence reported that Ms Tucker was able to complete activities of daily living independently. She did not require supervision and direction.
Dr Spence was not called for cross-examination on his evidence.
Associate Professor Doherty provided two medical reports and gave oral evidence by telephone at the hearing of this matter. In his first report, which is dated 17 August 2016, Associate Professor Doherty said he examined Ms Tucker on 21 July 2016 when she attended his rooms by herself.
The background information given by Ms Tucker to Associate Professor Doherty was not dissimilar to that which I have described above given to Dr Spence. There are, however, some significant differences. For example, Ms Tucker told Associate Professor Doherty that she needed to read prior to falling asleep. She said that reading helped her. That seems to indicate an improvement over a fairly short space of time. She also told Associate Professor Doherty that she read books of the self-help kind to improve her life coping strategies. She previously said she had difficulty reading. Nevertheless, Ms Tucker said that she woke up most of the time during the night and had interrupted sleep. Ms Tucker also mentioned, when she attended the examination by Dr Spence, that she was feeling good. She said at that time she had no nightmares but now was having severe nightmares at least once a month. The content of those nightmares was about work.
She told Associate Professor Doherty that occasionally she would go shopping with friends. She sometimes had a fear when shopping that she could not cope and she would get a panic attack. She said she had lost energy. Ms Tucker said she did undertake her household chores and meal preparation but also said she received household help and could not cope. She again said that she could drive a vehicle for short distances. She said a friend drove her to the examination on that day. She did not identify the friend.

When asked about social activities, Ms Tucker said she occasionally had coffee with a friend. She also said she was invited to a 21^st birthday party in September 2016 and was looking forward to it. Ms Tucker also referred to having pain all over her body and not being able to get up in the morning. See she said she needed to have a massage. She complained of muscle pain and not joint pain.
She discussed her anxiety and said she had it most of the time. She told Associate Professor Doherty she had tense shoulders and her arms hurt. Her stomach was tired and her legs hurt. Ms Tucker also mentioned concerns about her concentration and memory which she said was up-and-down. At that time, she was not taking any medication. She said she did take herbal stuff purchased over the counter.
Associate Professor Doherty described Ms Tucker as being neatly dressed and well-groomed for her age. She was tearful with a moment of distress when talking about the issues and experiences in the workplace. There was no anguish or perturbation. There was good eye contact and it was possible to establish rapport. She was not suspicious, mistrustful, guarded or evasive. She was cooperative, attentive and appeared not in pain. Associate Professor Doherty considered Ms Tucker’s affect at interview to be depressed. She had a reduced range of reactivity. In his view, Ms Tucker’s affect was congruent with her thoughts and conversation, and appropriate to the circumstances of the interview.
As for diagnosis, Associate Professor Doherty said it was not unreasonable to come to the conclusion that when Ms Tucker ceased work, the appropriate diagnosis was that of severe adjustment disorder with depressed and anxious mood with some features of traumatisation. However, the examination being some five years since Ms Tucker ceased work and had largely put behind her the stresses she experienced at work, her psychiatric condition had evolved over time. She was occasionally obsessive and pedantic, needing detail and holding on to past issues. Of particular note to Associate Professor Doherty was what he described as an upswelling of Ms Tucker’s obsessionality and a worsening of the traits of obsessionality. He was of the opinion that those traits and the persistent mood disorder have interfered with her activities of daily living, and reduced her capacity to return to gainful employment.
Associate Professor Doherty was of the opinion that elements of major depressive disorder remained present, were persisting and as a consequence, Ms Tucker’s enjoyment of social activities had significantly diminished. There were also times of persisting and disabling anxiety symptoms. Associate Professor Doherty concluded:
It appears to me that accepted condition of adjustment disorder with depressed and anxious mood has evolved into a persistent depressive condition marked by anxiety and some features of traumatisation. In my opinion, there was no diagnosable psychiatric condition present before the emergence of the accepted psychiatric condition. In my opinion the current psychiatric condition remains materially contributed to and related to the Commonwealth employment. There has been an up swelling of the processional personality features in her personality due to the stress at work and the persistence of a psychiatric condition.
In applying the criteria set out in Table 5.1 of the Guide, Associate Professor Doherty said:
Your client has a severe to moderate severe impairment of his[sic] social activities. That is due to the persistence of anxiety and depressive symptoms.
Your client has significant limitation in participating in group activities, social events and her interest. That impairment is significant. Your client is severely limited in a range of social activities.
There are definite reactions to stressors of daily living which cause modifications of her daily living patterns. For example, she has become withdrawn, isolates herself I can only do one thing at a time. She has ceased, largely undertaking previously enjoyable recreational activities.
She remains severely anxious and depressed.
There is a disturbance in her thinking, also her judgement.
Your client’s obsessional thinking interferes significantly in her judgment, her ability to work through problems, and feel satisfied with outcomes. She is preoccupied and at times ruminates. There is significant impairment in her thinking due to the exacerbation of the processional thoughts and obsessional modes of thinking.
Your client’s behaviour is disturbed and limited by the presence of severe anxiety symptoms including panic episodes. There is disturbance in motivation giving rise to lethargy and reduced daily activity.
In my opinion the appropriate level of impairment using Table 5.1 in the Guide is 25%.…
Associate Professor Doherty referred to Dr Spence’s assessment of 10% WPI and said that the level of impairment was less than appropriate and did not give due weight to the significant limitations in social and personal functioning and the deterioration in Ms Tucker’s interpersonal capacity due to the nature and severity of her psychiatric condition. He was also the opinion that insufficient weight had been given to the exacerbation of obsessionality caused by the stressful psychiatric condition.
Associate Professor Doherty provided a further report dated 5 December 2016. He had re-examined Ms Tucker on 11 November 2016. Much of the description regarding her mental condition recorded by Associate Professor Doherty on the occasion of his first assessment in August 2016 was repeated. Ms Tucker gave a description of what it felt like to have a panic attack. However, there was no objective evidence of such an event.

Ms Tucker also referred to having pain all the time and that she occasionally took an opioid analgesic, oxycodone (Endone). She said that stress increased her pain experience.
Ms Tucker explained she did use her computer to sell things from the house by putting them on to the Gumtree site. She had difficulty with the gardening and could not do routine household tasks. She complained of the house being too large for her and the need to downsize. Strangely, Ms Tucker also said that she could not cook. I say that because in March 2016 when examined by Dr Spence, she described enjoying cooking and said that it was fun. I am not aware of any significant event having taken place in the eight month period when her view about cooking appears to have changed dramatically.
Ms Tucker also told Associate Professor Doherty that her social activities were much diminished and that she was not joining in anything, saying she couldn’t be bothered. However, I had in evidence an extract from Ms Tucker’s Facebook page which includes a photograph of her taken at what is described as a Melbourne Cup 2015 event. She is seated at a table set for multiple persons amongst a crowd of other persons in what appears to be a restaurant. She is very elegantly dressed and is wearing a very stylish hat which appears to match the outfit. The photo appears to have been put on her Facebook page on 10 November 2015. Ms Tucker looks anything but disturbed at being at that event. In fact she appears quite pleased to be there, smiling for the camera shot.
Associate Professor Doherty also described her mood as down and anxious and he considered her affect to be depressed. He said there was a mood of resignation and demoralisation. Associate Professor Doherty then made the following statement:
Your client’s speech was remarkable. There was increased volume, increased rate and heightened prosody. There was no impairment in spontaneity, fluency and articulation. There was no impairment in your client’s form or content of thought. The focus and theme of her speech had to do with her deteriorated capability. There were some features of melancholia with a strong sense of hopelessness, pessimism for the future and deteriorated physical functioning. There were some features of traumatisation with remembering, recollecting and going over incidents that occurred within the workplace. There were no illusions or hallucinations. There is no actual flashback or dissociative phenomena.
Your client was alert, aware, orientated and in clear consciousness. There appeared to be no cognitive impairments related to organic factors. There was subjective impairment in concentration and attention. I concluded that your client’s insight to be unimpaired by any psychiatric condition. In my opinion, your client’s judgement is impaired by a psychiatric cause.
As to diagnosis, Associate Professor Doherty said that the previous diagnosis of an adjustment disorder had evolved over time with the predominant pervasive downturn in mood suggestive of a major depressive disorder. He also said that Ms Tucker remained particularly troubled by her deteriorated functional capacity, overwhelming anxiety, downturn in mood and loss of functional capacity and reduced tolerances. Associate Professor Doherty maintained that she should be assessed at 25% WPI.
In his oral examination-in-chief Associate Professor Doherty was asked whether the pain Ms Tucker experienced was physical pain. Associate Professor Doherty said it was and that, given her mental state, Ms Tucker was more sensitive to pain and it felt more intense. With respect to Associate Professor Doherty, that appears to be the expression used by Ms Tucker regarding her pain rather than his professional opinion. If it is his professional opinion, then having previously attributed that statement to Ms Tucker is incorrect.
Associate Professor Doherty was also asked if he attached any significance to Ms Tucker telling him that she used Endone or Tramal. Although Associate Professor Doherty said he would not attach any significance to that, he said he would ask her where she got the knowledge of Endone. That is in fact an interesting response as I am unable to locate, amongst two medical records, her GP having written a prescription for Endone. She was prescribed Celebrex for her cervical spondylosis in October 2015 and September 2016.
I should also point out that at Part 1: Glossary of the Guide, it is stated that “pain” means physical pain whilst “suffering” means the mental distress resulting from the accepted conditions or impairment.
I had in evidence two reports prepared by Dr Anthony Sheehan, a consultant psychiatrist. These reports were prepared at the request of Comcare. The first report deals with the percentage WPI which should be allocated to Ms Tucker and the second deals with non-economic loss.
In his first report which is dated 30 June 2017, Dr Sheehan reported Ms Tucker telling him that she would only cook once in a blue moon. She said that if she was alone, she would eat toast, Vegemite or soup in a can. This statement is in stark contrast to what she told Dr Spence in March 2016. She also said there were times when she would get dressed when she had to go to appointments and then would also shower. On other days when she did not have appointments, she might stay in her pyjamas, depending on how she felt. She explained that she would do her shopping once every four weeks. She met with friends probably once per month. She was able to drive herself anywhere but not for more than 15 minutes. She said she was fearful of having a panic attack. She said her daughter called in fortnightly and that her husband might drop things off, whatever was meant by that phrase. Her daughter and her husband invited her for dinner once a fortnight. Sometimes, if a friend called her on the phone, they might go and have coffee together. She suggested she might see her friend every one or two months.
Ms Tucker said she had an interest in real estate and home improvement and that she had been a property developer, setting up the children and then herself. She said she owned another property which was managed by a property manager. Her daughter appears to have been a fairly regular visitor as has her son and they assist with household cleaning and the garden.
On mental state examination, Dr Sheehan said there was no evidence of thought disorder and her affect was generally reactive although restricted in range and intensity. Her mood was dysphoric but she did not appear depressed. She remained preoccupied with issues leading up to her ceasing work and her underlying sense of injustice. Ms Tucker reported moderate erosion of self-confidence and self-esteem, mild depressive mood states, intermittent panic attacks and some mild phobic anxiety and avoidant behaviour. She had partial insight and her judgement was mildly influenced by her demotivation and erosion of self-confidence. There was no evidence of perceptual disorder. There was no impairment of intellect. Attention, concentration and general memory recall were all impaired during the interview.
As for diagnosis, Dr Sheehan agreed with Drs Felman and Rose. In his opinion, Ms Tucker was best formulated as experiencing a chronic adjustment disorder with mixed emotional features. He did not think she met the full criteria for PTSD. Based on her presentation on the day of examination, Dr Sheehan said Ms Tucker continued to suffer from chronic adjustment disorder with depressed and anxious mood of moderate severity.
Dr Sheehan agreed that 10% WPI was the correct assessment under Table 5.1 of the Guide. That was because Ms Tucker was capable of performing activities of daily living noting that she was able to manage her self-care and personal hygiene when required. There were no specific difficulties with communication and she reported no impairment in her physical activity despite her stating that she was always in pain. Ms Tucker did not report any impairment of sensory function or of hand functions. She was able to travel and drive or travel as a passenger. She reported no current partner.
In her written witness statement, Ms Tucker reported that she had been single since 1983 when she was divorced. However, clinical notes of a consultation with Dr Helen Krips on 5 February 2012 note that she attended accompanied by husband. And again, on 10 January 2014 in a further consultation with Dr Krips, the record indicates she was accompanied by her husband and son. When this was raised in cross-examination with Ms Tucker, she denied that was the case and said it could not be correct. Ms Tucker was then referred to Dr Rose’s report of 22 August 2012 where he recorded being told that Ms Tucker had been living alone for six years, having previously lived with her daughter and her daughter’s son. She said she had been separated for 20 years but had two subsequent relationships, the last one of which ended five years ago. She agreed with that statement but denied having attended Dr Krips with either her husband or with her husband and son. With respect to Ms Tucker, it is highly improbable that Dr Krips recorded that based on an assumption rather than having asked Ms Tucker who those persons were.
Ms Tucker also reported limited social and recreational activity. However that does not sit comfortably with Ms Tucker’s Facebook page showing her attending a Melbourne Cup function in November 2015.
Dr Sheehan referred to Dr Doherty’s assessment and considered that Ms Tucker did not fulfil the criteria for a 25% WPI because she did not have a need for supervision and direction of activities of daily living as defined in the Guide. She required some assistance only.
The evidence that I had before me dealing with the correct percentage WPI under the Guide is, in my respectful opinion, seriously deficient. There was no evidence from any person other than Ms Tucker regarding the effects her mental impairment had on her activities of daily living. That is despite the fact that both friends and close relatives visited her on a reasonably regular basis, her son in fact living with her for some time, and yet none of those persons provided evidence to support Ms Tucker’s claim. No explanation was offered for that failure. The problem with relying on self-serving statements from Ms Tucker is readily apparent on a reading of the various medical reports. There are numerous inconsistencies in Ms Tucker’s account of the degree of difficulty she has with activities of daily living, the most apparent are those to which I have referred above. In fact the only objective piece of evidence, the photograph of Ms Tucker at the Melbourne Cup function, is in stark contrast to her statements about attending social events and social relationships. She appears very well-groomed in that photograph, appropriately attired and anything but anxious.
Nevertheless, doing the best I can on the evidence presented to me on the hearing of this matter, I find that Ms Tucker does not meet the 25% WPI she claims. In order to meet that level of impairment from her mental condition, Ms Tucker’s reactions to stressors of daily living causing modification of daily living patterns; marked disturbances in thinking; and definite disturbances in behaviour must be accompanied by a need for some supervision and direction in the activities of daily living. The notes to Table 5.1 describe supervision as follows:
Supervision means the immediate presence of a suitable person, responsible in whole or in part for the care of the employee.
The description suitable person is also defined in the notes as follows:
Suitable person means a person capable of responsibly caring for the employee in an appropriate way.
Direction is also a defined term in the notes and it means:
… the provision of direction to the employee by a suitably qualified person, responsible in whole or in part for the care of the employee.
A suitably qualified person is defined in the notes as follows:
… a person with the necessary qualifications, experience and skills to provide appropriate direction to the employee. Such persons include medical practitioners, nursing staff and clinical psychologist.
Even on Ms Tucker’s self-serving evidence, there is nothing in that material which would suggest that she was in need of some supervision, that is the immediate presence of a suitable person in respect of the three matters referred to at that level of WPI. There is certainly no evidence that she needs direction by a suitably qualified person for the purpose of performing the activities of daily living or to assist with the three factors set out at the 25% WPI level. A suitably qualified person is one that has appropriate qualifications experience and skills to provide assistance to a person with psychiatric problems. She certainly does not reach that level of impairment.
In my opinion, the evidence discloses that Ms Tucker is capable of performing the activities of daily living without supervision and assistance despite reactions to stressors of daily living with minor loss of personal social efficiency; lack of conscience directed behaviour without harm to others or to herself; and minor distortions of thinking. Accordingly, I find that a 10% WPI is the correct assessment.
NON-ECONOMIC LOSS
Part 1 of Division 2 of the Guide deals with the assessment of non-economic loss. There are five tables which comprise the non-economic loss assessment. They are:
·Pain
·Suffering
·Loss of amenities
·Other loss
·Loss of expectation of life
Each table has a score range of 0 to 5. The table dealing with Pain incorporates a visual analogue pain scale which is a scale ranging from 0 to 10 with zero is described as there being no pain and 10 being the worst pain ever experienced. That is in addition to a descriptor under each possible score. All remaining tables rely simply on descriptors. Necessarily, these are all subjective assessments by an applicant although there may be objective evidence to support the self-assessment. Where there is objective evidence, it should be given more weight where the subjective evidence does not accord with such material.
B1 Pain
As I have already indicated above, pain for the purposes of the Guide, means physical pain. The pain must itself be due to an accepted workplace injury. In this case, Ms Tucker does not have a physical injury which has been accepted as a work injury. Her work related injury is solely mental. In her claim for non-economic loss and in particular the pain element, Ms Tucker referred to having no energy or motivation and that she constantly had a muscle ache all over her body. That description is plainly a reference to physical pain. She also described having pain in the legs, shoulders, neck and arms almost every day. She makes no mention of her diagnosed cervical spondylosis which, logically, might account for that pain she described.

Dr Spence recorded a score of 0 for pain stating that the accepted injury was psychological in nature. Associate Professor Doherty gave Ms Tucker a score of 2. He noted that Ms Tucker’s panic attacks were associated with pain, generating body pain, muscle pain and tightness in muscles. However, and with respect to Associate Professor Doherty, he provided no explanation as to how that pain is associated with Ms Tucker’s mental condition. I had no evidence before me indicating the symptoms described by Associate Professor Doherty were as a consequence of a panic attack. Dr Sheehan noted that the Guide refers to pain as physical pain. He said the origin of Ms Tucker’s pain symptoms was not clear and may require further assessment regarding any physical condition which may be causing the symptoms described. However, regarding the accepted psychiatric condition, he scored Ms Tucker at 0.
In my opinion, the evidence strongly suggests that the pain experienced by Ms Tucker is physical pain even if that pain may be exaggerated by her mental condition. Because a reference to pain in the Guide is a reference to pain arising from an accepted injury, I find the only score which can be allocated under this heading is 0.
B2 Suffering
As stated in the definition, this aspect deals with mental distress arising from the accepted condition. In her comments on the application form for non-economic loss, Ms Tucker said she felt vulnerable, humiliated, embarrassed and could not discuss her condition with people other than medical care providers as she felt too ashamed. She did not like people going to her house because she could not keep it tidy. She said she isolated herself and had lost most of her friends. Ms Tucker said she lost her ability to motivate herself and felt that she had lost the ability to feel a sense of social belonging. She said she has a fear of rejection and/or acceptance. She was of the view that the overwhelming feeling of anxiety had an impact on her well-being, causing her to develop panic attacks and to avoid going out as much is possible. She said she tended to keep to herself so she does not have to face any difficult social situation. Ms Tucker also said she found it much easier to settle in on the couch and get lost in mindless TV than go out for a walk or join a social activity. In a letter dated 26 September 2014 Dr Rodda referred to crowds in particular upsetting Ms Tucker and stated that she had difficulty leaving her home for prolonged periods.
Despite those statements, there is objective evidence to the contrary. In his September 2014 report Dr Felman recorded Ms Tucker telling her that she did not watch TV during the day but watched the news at night. The photograph on her Facebook page shows Ms Tucker apparently engaged pleasantly at a social function which is clearly attended by a large number of people. Dr Spence noted that the account Ms Tucker gave about flashbacks of events in the workplace was also inconsistent. He also noted that Ms Tucker’s description about feeling pain in her side and her muscles becoming tight and her body aching appeared to come from Dr Rodda’s earlier reports. Dr Rodda expressed the opinion that Ms Tucker may suffer a cardiac event if the circumstances at work were not contained. Dr Spence recorded that Ms Tucker described experiences and behaviour consistent with a degree of agoraphobia. Ms Tucker also reported that in between episodes, she could feel quite good. That suggests that the symptoms she described are episodic rather than frequently recurring events. In fact Dr Spence said Ms Tucker described episodic anxiety around reminders of the workplace with occasional flashbacks and nightmares. Dr Spence was also of the opinion that ongoing psychology appointments constituted reasonable treatment but needed not to be as frequent as they had been prior to his report of 22 March 2016. Ms Tucker also told Dr Spence that on some days she was really good and on other days she was not good at all.
In her report of 15 September 2014 Dr Felman was of the opinion that Ms Tucker’s symptoms at that time were of reduced severity compared with the time of her previous assessment. She said Ms Tucker’s improvement had been matched by increased hope and planning for the future even though that had not yet translated into significant improvement in functioning. Dr Joseph Poznanski, in a counselling review treatment plan said Ms Tucker had withdrawn from her social circle and had lost motivation and energy to clean, cook and look after herself. That is certainly what Ms Tucker has told her treating practitioners. However, in his November 2014 report, Dr Rose said Ms Tucker presented neatly dressed and groomed. Dr Spence described Ms Tucker as neatly dressed, tall, slim lady who appeared her stated age. She had organised a folder of documents which she brought with her to the appointment which was attended on time. Ms Tucker also told Dr Spence she was able to do some cleaning and gardening herself and did not require supervision and direction with her activities of daily living.
Ms Tucker told Associate Professor Doherty that her anxiety was horrible and she had it most of the time. Ms Tucker also told Associate Professor Doherty that she had no named medical conditions unrelated to the accepted psychological condition. That statement is plainly incorrect given her diagnosis of cervical spondylosis. Associate Professor Doherty also recorded that, in his opinion, there were definite reactions to stressors of daily living which caused modifications of her daily living patterns. In his June 2017 report Dr Sheehan described Ms Tucker as casually dressed and groomed and appeared kempt in her appearance. He also said that Ms Tucker’s condition had essentially stabilised and there appeared to be little gain from ongoing psychological therapy. He recommended a rehabilitation program. Dr Sheehan said that from Ms Tucker’s description of mental distress and emotional symptoms, a rating of 4 appeared appropriate in the context of the symptoms and lifestyle difficulties she reported the time of assessment.
Save for Dr Spence, the remaining medical practitioners who have assessed her under Table B2 dealing with Suffering have allocated a score of 4. Dr Spence allocated a score of 3. The Table describes the level of effect for a score of 4 as follows:
Symptoms of mental distress are wide-ranging and tend to dominate thinking.
Rarely free from symptoms of mental distress.
Difficulty coping or performing activity.
Treatment necessary either to control or relieve symptoms.
Given that this assessment is essentially subjective and provided by the Applicant, it is difficult to come to any objective assessment about the correct score. My only concern is that Ms Tucker has perhaps overstated the severity that her psychological condition has on her activities of daily living. In addition, Ms Tucker refuses to take medication in order to relieve or control symptoms and psychological counselling appears to have had little or no effect. A score of 3 describes the following level of effect:
Symptoms of mental distress are distinct and varied.
Episodes of mental distress occur regularly.
Ability to cope or perform activity effectively reduces during episodes.
Needs time to recover between episodes.
Treatment – medication such as anti-depressants, counselling or other therapy by a psychologist or psychiatrist, or other supportive therapy – is of benefit in controlling or relieving symptoms.
In my opinion, the descriptors set out under the score of 3 appear to more closely align with what is stated in the majority of the medical reports. Her mental stress certainly appears to be episodic as she has indicated there are some very good days. In addition, the objective evidence and in particular the photograph of Ms Tucker attending a lunch function at a restaurant at which there are numerous people supports the episodic nature of her depression. There was no objective evidence of a panic attack or the level of her incapacity when suffering from anxiety. Regardless, on the occasions she has been seen by medical practitioners, save for one report, she appeared well groomed and attired. Ms Tucker has indicated that she does not wish to see any further psychiatrist who she described as paper shufflers but believed psychological counselling from time to time helped. She refuses to take medication.
B3 Loss of amenities
B3.1 Mobility
This Table states that loss of amenities is also known as loss of enjoyment of life. Loss of amenities and leisure activities means the effects on mobility, social relationships and recreation. The introduction to this table also states that mobility refers to the employee’s ongoing ability to move around in his or her environment. This includes walking, driving, being a passenger, and using public transport.
There was no evidence that Ms Tucker had any difficulty with physical mobility in her home environment. It appears she would undertake walks of a longer nature outside the house if accompanied by a friend or support person. She is capable of driving a car and also travelling as a passenger. She has indicated problems with using public transport and in particular that she may suffer a panic attack while doing so. She travels to the hairdresser every couple of months and does her own shopping, on a monthly basis. She does use taxis. The scores given by the various medical practitioners who have assessed this element of non-economic loss have awarded a score of 2 with the exception of one practitioner who scored 1 (Dr Spence). The descriptors for a score of 2 are as follows:
Mobility reduced, but remains independent of others both within and outside the home.
Can travel but may require rest breaks, special seating, or other special treatment.
The descriptors of the level of effect for a score of 1 are:
Periodic effects on mobility, resulting in the need for some assistance
or
effects continuing but mild (such as slowing of pace or the need for a walking stick).
In my opinion, the evidence indicates an appropriate score in Ms Tucker’s case is 2. While her physical mobility may be impaired from time to time resulting in the need for some assistance, she is essentially independent when moving around both inside her home environment and outside of it. The evidence indicates a limited capacity to drive or to travel as a passenger.
B3.2 Social relationships
The introduction to this Table states that social relationships is a reference to the employee’s ongoing capacity to engage in usual social and personal relationships.
The evidence was that Ms Tucker was able to maintain social relationships with family members as well as other friends. They may not have been as frequent as perhaps she would have liked but nevertheless the relationships appear to have been sustained despite her psychological condition. Although not entirely clear, it also appears that her son resided with her for some period of time. Although denied by Ms Tucker, since the 2011 incident which caused her psychological impairment, she was accompanied to medical appointments by a person described as her husband and also her son. Her attendance at the social function for the Melbourne Cup in November 2015 is clear objective evidence of Ms Tucker’s capacity to engage socially at least on some occasions. There was no other objective evidence, although no reason was given for not obtaining something from friends and relatives in respect of her capacity to maintain social relationships. Although Ms Tucker rated herself at the level 5 which describes the level of effect as having difficulties relating socially to anyone, the evidence does not support that claim.
Ms Tucker also maintains a Facebook page and she has indicated that she uses that to communicate with her niece in England.
The evidence under this Table points to either a score of 2 or 3. The relevant descriptor for a score of 2 is as follows:
Relationships confined to immediate and extended family and close friends, but unable to relate to casual acquaintances.
For a 3 score, the descriptor states:
Difficulty in maintaining relationships with close friends and the extended family.
There was no evidence before me indicating that Ms Tucker had difficulty in maintaining relationships with her friends and extended family. While contact may have reduced in frequency, there was no evidence about difficulties in maintaining those relationships. In fact Ms Tucker reported having a good relationship with both her children and her grandson. The evidence indicates a score of 2 is the appropriate level.
B3.3 Recreation and leisure activities
The introduction to this Table states that recreation and leisure activities is a reference to the employee’s ongoing ability to maintain customary recreational and leisure pursuits.
Ms Tucker has given evidence that she is now unable to continue with leisure activities including rock and roll dancing, dinner parties, social gatherings and going to the movies or staying at a friend’s place overnight. She no longer goes to football matches. She has not been on a holiday with friends or by herself. Once again, the only evidence before me of these difficulties was that given by Ms Tucker. It makes it very difficult to properly assess her degree of loss under this category.
However, as I have already indicated above, the evidence discloses she is plainly able, at least on occasion, to engage in leisure activities such as social lunches at a public dining facility. She has also said she is able to do some gardening and, at least in one report, indicated that cooking gave her considerable pleasure as she regarded it as fun. This appears to have been an alternative or additional activity in which she previously did not engage. The various medical practitioners have allotted scores ranging between 2 and 4. A score of 2 describes a level of effect as:
Interference to activities reduces frequency out activity, but is able to continue.
Is able to follow alternatives.
A score of 3 requires the following descriptor be satisfied:
Unable to continue activity. Alternative less satisfying activity possible.
A score of 4 requires the following descriptor be satisfied:
Range of activities greatly reduced. Needs some assistance to participate in pre-injury recreation and leisure activities.
The evidence discloses Ms Tucker is not able to continue with pre-injury levels of recreation and leisure activities. Alternative leisure activities are possible. In my opinion, a score of 3 is attracted by the evidence.
B4 Other Loss
This table is said to be used to assess losses of a non-economic nature that are not adequately covered by the other Tables.
There was no evidence before me to suggest that the assessments made under the tables to which I have referred above are in any way inadequate. An appropriate description under this heading is that she suffers nil or minimal disadvantages outside those factors taken into account in the other tables. Therefore, the appropriate score is 0.
B5 Loss of expectation of life
There was no evidence before me to indicate that Ms Tucker would suffer any diminution in the normal expectancy of her lifespan. The appropriate score is 0.
NON-ECONOMIC LOSS CALCULATION
Table B6 of the Guide sets out the methodology for calculating a total score for non-economic loss by the application of a weighting factor. In Ms Tucker’s case it results in the following:
Pain  0 x 0.5 = 0
Suffering  3 x 0.5 = 1.5
Mobility  2 x 0.6 = 1.2
Social relationships  2 x 0.6 = 1.2
Recreation and leisure activities       3 x 0.6 = 1.8
Other loss  0 x 1.0 =0
Loss of expectation of life                  0 x 1.0 =0
Total              5.7
Percentage non-economic loss           4.2 ÷ 15 x 100 = 28%
HOUSEHOLD AND ATTENDANT CARE SERVICES
Section 29 of the SRC Act provides for compensation for household services and attendant care services. Relevantly, it provides:
(1)Subject to subsection (5), where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2)Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a)the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b)the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c)the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d)the extent to which the persons referred to in paragraph (b), or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e)the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
…
(3)Where, as a result of an injury to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of:
(a) $200 per week; or
(b)an amount per week equal to the amount per week paid or payable by the employee for those services;
whichever is less.
(4)Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a)the nature of the employee’s injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;
(b)the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care;
(c)the extent to which it is reasonable to meet any wish by the employee to live outside an institution
(d)the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
(e)any assessment made in relation to the rehabilitation of the employee;
(f)the extent to which a relative of the employee might reasonably be expected to provide attendant care services.
…
On 10 October 2016 a Comcare delegate informed Ms Tucker that she had no present entitlement to compensation for household services and gardening services under s. 29 of the SRC Act. The Delegate noted that Ms Tucker was compensated for household services which were initially provided to assist her for a short period only. Those services were recommended for a period of six months only to assist Ms Tucker in sorting out her belongings through many years of hoarding in order to relocate to a smaller home. Ms Tucker sought reconsideration of that termination.
On 11 January 2017 a Comcare Review Officer determined that the original decision was correct and she affirmed that decision. The Review Officer explained that the purpose of Comcare funding household and attendant care services was to achieve an optimal return to work and health outcomes while maximising an employee’s independence. In Ms Tucker’s case, the services were first provided in October 2014, being recommended for a period of 6 months only. That period was extended on 17 June 2015, 17 September 2015, 9 February 2016 and 13 July 2016.
Comcare referred to the report of Dr Spence dated 22 March 2016. In his report Dr Spence referred to an assessment done by Dr Felman where Ms Tucker described to her that she was doing more gardening. Dr Spence said:
… In my opinion her mental state has settled more when compared with these previous assessments. In my opinion there is no psychiatric contraindication to the worker being able to complete her own gardening and cleaning. The worker has managed to be responsible for her own shopping and paying bills. In my opinion, these daily activities could be used with encouragement from her psychologist, to increase her function and independence. I consider that some basic encouragement to get out of the house, walk regularly and maintain interaction with friends and family is vitally important.

Associate Professor Doherty also provided a report and opinion regarding the provision of household services, dated 5 December 2016. He said:
With regard to home cleaning, your client is significantly disadvantaged and is becoming increasingly stressed following the loss of home help with cleaning.
She has a significant psychiatric problems [sic] has previously hoarded, and is now living in messy circumstances. Her home situation significantly contributes to the ongoing presence and continuation of her psychiatric condition.
I have also examined the clinical records of Dr Hammond, particularly those where consultations took place in 2016. An entry dated 13 February 2016 indicates Ms Tucker was living by herself but her son continued to reside with her. She apparently told Dr Hammond that she was her usual self and continued to feel lonely although her mood in general had been okay. She described her mood as being changeable but she was coping with life. Her sleep had been okay. She also said that she had a plan to move out of her house and downsize and she is looking for the right opportunity. She also said she would like to travel and would want to go with someone. Ms Tucker said there was a lot of clutter in her house and she was trying to dispose of it on eBay with some good results.
Then, later in 2016, commencing in September, Ms Tucker consulted

Dr Hammond essentially for her cervical spondylosis condition. She complained of pain and paraesthesia in her left arm and the side of her neck was sore. That of course is not an accepted work-related injury and cannot be considered for the purposes of her compensation claim. It is difficult not to conclude that this condition is responsible, to a significant degree, for Ms Tucker’s difficulty with, and possibly reluctance to, resolving the clutter situation in her house and to downsizing to a smaller dwelling.
The most recent medical report I have is that provided by Dr Sheehan on 30 June 2017. Dr Sheehan addressed the issue of assistance with household tasks and he noted that Ms Tucker’s home assistance was withdrawn in 2016. Ms Tucker indicated to

Dr Sheehan that she was able to do some basic chores but also that she was dependent on her daughter and son occasionally doing vacuuming and mowing the lawns. She apparently told Dr Sheehan that she assisted her son in the preparation of meals. As I have already indicated above, Ms Tucker has made contradictory statements about meal preparation and it is difficult to assess, without objective evidence, her situation.

Dr Sheehan said that it may be appropriate for a further home/ADL (activities of daily living) assessment given that she had, at that time, not had an assessment for about two years.
Once again, there are contradictory statements made by Ms Tucker regarding her need for assistance with general household chores. I had no objective evidence which either supported or contradicted those statements. It seems as though her son was living with her in February 2016 and no doubt he could have provided useful evidence regarding his observations. I am concerned that he was either not consulted or not prepared to assist. I accept Dr Sheehan’s opinion that there has been some improvement in her psychological state and therefore the impact of her accepted work injury on her ability to cope with household chores is likely to have reduced. I am also concerned that Ms Tucker is now having increasing problems from her cervical spondylosis and that is compounding the difficulties she experiences. Unfortunately for Ms Tucker, the restrictions imposed on her by her neck and arm pains are not compensable.
I must also consider whether there are persons living with Ms Tucker or, if she continues to live on her own, her family that visits her on a reasonably regular basis might reasonably be expected to assist with household and gardening services. If Ms Tucker was serious about moving into smaller accommodation, it would be reasonable to expect her family to assist her in that regard. Despite the passage of a number of years now since that was first mooted by Ms Tucker, nothing seems to have happened. Despite household services having been withdrawn in the latter half of 2016, it appears that Ms Tucker has, for almost a year and a half, managed with the assistance of family. I also accept what Dr Spence said about Ms Tucker needing encouragement to establish her independence. She has already managed to do that to a certain extent.
The evidence before me on hearing this matter indicated that Ms Tucker is able to provide for her personal care.
Therefore, I find that Ms Tucker does not reasonably require assistance with household services or attendant care services as a consequence of her accepted workplace psychological injury.
CONCLUSION
I have found that the correct WPI rating arising out of Ms Tucker’s work-related injury is 10%. However, I have come to a slightly different conclusion regarding the calculation of non-economic loss suffered by Ms Tucker. I have calculated her percentage of non-economic loss to be 28% and not the 30% determined by the Review Officer in her decision of 22 September 2016. For that reason, I remit the matter to Comcare for the purpose of recalculating Ms Tucker’s entitlement to compensation for non-economic loss.
As for the claim pursuant to s. 29 of the SRC Act for compensation for household services and attendant care, I have found that the decision made by the Review Officer on 11 January 2017 to deny Ms Tucker compensation for this claim was the correct decision. I affirm that decision.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

.................................[sgd].......................................
Associate
Dated: 10 May 2018

Dates of hearing: 16 & 17 November 2017

Solicitor for the Applicant: Mr Chris Hardman

Counsel for the Respondent: Ms Cathy Dowsett

Solicitor for the Respondent: Ms Kellie Latta - Sparke Helmore Lawyers

[2018] AATA 1251

10 May 2018

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Remedies

Judicial Review

Statutory Construction

Appeal

Activity	Examples
Self care, personal hygiene	Bathing, grooming, dressing, eating, eliminating.
Communication	Hearing, speaking, reading, writing, using keyboard.
Physical activity	Standing, sitting, reclining, walking, stooping, squatting, kneeling, reaching, bending, twisting, leaning, carrying, lifting, pulling, pushing, climbing, exercising.
Sensory function	Tactile feeling.
Hand functions	Grasping, holding, pinching, percussive movements, sensory discrimination.
Travel	Driving or travelling as a passenger.
Sexual function	Participating in desired sexual activity.
Sleep	Having a restful sleep pattern.
Social and recreational	Participating in individual or group activities, sports activities, hobbies.

Dates of hearing:	16 & 17 November 2017
Solicitor for the Applicant:	Mr Chris Hardman
Counsel for the Respondent:	Ms Cathy Dowsett
Solicitor for the Respondent:	Ms Kellie Latta - Sparke Helmore Lawyers