Watson and Comcare (Compensation)
[2020] AATA 5162
•22 December 2020
Watson and Comcare (Compensation) [2020] AATA 5162 (22 December 2020)
Division:GENERAL DIVISION
File Number: 2017/3377
Re:Colin Watson
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:22 December 2020
Place:Brisbane
The Tribunal affirms the decision under review.
...................................[SGD].....................................
Member D K Grigg
CATCHWORDS
COMPENSATION – employees – whether applicant entitled to compensation for permanent impairment – whether impairment became permanent prior to the commencement of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – application of the transitional provisions under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether section 24(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is applicable to a determination of the permanency of an impairment prior to 1 December 1988 – whether permanency can be considered with hindsight – whether applicant suffered from a new impairment arising out of the same injury – decision under review affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Social Security Act 1947 (Cth)
CASES
Bergersen and Comcare [2007] AATA 1373
Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555
Cavanagh and Comcare [2008] AATA 553
Comcare v Levett (1995) 60 FCR 14
Comcare Australia v Maida [2002] FCA 1284; (2002) 36 AAR 69
Comcare Australia v Mathieson (2004) 39 AAR 450
Department of Defence v West (1998) 156 ALR 651; 85 FCR 491
Doering and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 752
Excell v Comcare [2008] FCA 757
Hunter Quarries v Mexon [2018] NSWCA 178
Jamieson and Comcare [2019] AATA 5424
MacFarlane and TNT Australia Pty Ltd (Compensation) [2020] AATA 3721
McDonald v Director-General of Social Security [1984] FCA 59; (1984) 1 FCR 354
O’Keefe v Comcare [1988] FCA 603
Re George John Blackman v Australian Telecommunications Corporation [1990] FCA 295
Spradau and Comcare [2020] AATA 2054
Springhetti and Comcare [2007] AATA 1504THSV and Military Rehabilitation and Compensation Commission (Verterans’ entitlements) [2018] AATA 3201
SECONDARY MATERIALS
Dr Harvey Marcovitch, Black’s Medical Dictionary (Bloomsbury, 43rd ed, 2017)
Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 4th ed, 2000)
CONTENTS
REASONS FOR DECISION
INTRODUCTION & CLAIMS HISTORY
ISSUES FOR DETERMINATION
LEGISLATIVE REQUIREMENTS
Compensation for a Permanent Impairment
Compensation for Non-economic Loss
1971 Act
Operation of section 124 of the Act
CONTENTIONS – SUMMARY
Mr Watson’s Contentions
Comcare’s Contentions
MR WATSON’S PSYCHOLOGICAL IMPAIRMENT – WHEN DID IT BECOME PERMANENT
Medical Evidence
Determining Permanency
Do the matters set out in section 24(2) of the Act need to be considered?
Can permanency be considered with the benefit of hindsight?
What is a permanent impairment?
CONSIDERATION
Did Mr Watson have a permanent impairment prior to 1 December 1988
Status of Mr Watson’s current condition
Is there an ongoing contribution from work?
Section 24(2) Factors
Duration of the impairment (section 24(2)(a), Act)
Likelihood of Improvement/Had Mr Watson undertaken all reasonable rehabilitative treatment for the impairment by 1 December 1988? (sections 24(2)(b) and 24(2)(c), Act)
Conclusion – Permanency
HAS MR WATSON SUFFERED FROM A NEW IMPAIRMENT POST 1 DECEMBER 1988?
CONCLUSION
DECISION
REASONS FOR DECISION
Member D K Grigg
22 December 2020
INTRODUCTION & CLAIMS HISTORY
Mr Colin Watson is a former employee of IP Australia (formerly known as the Patent, Trade Marks and Design Office) and has an accepted workers compensation claim for “severe depression and anxiety” sustained on 4 September 1987 (“Compensable Condition”).[1] Mr Watson did not return to work after 4 September 1987.
[1] Exhibit 1, T Documents, T6, page 21, Statement of Reasons undated.
Effective 13 October 1988, Mr Watson was retired on the grounds of invalidity due to his depression.[2] Mr Watson consented to the retirement.[3]
[2] Exhibit 1, Supplementary T Documents, ST7, page 185, Letter from Australian Trade Marks and Design regarding the Applicant’s invalidity retirement dated 12 April 1990; ST8, page 186, Letter from Comcare regarding the Applicant’s invalidity retirement dated 30 April 1990.
[3] Exhibit 2, Summons Records, Tab 41: Records of Commonwealth Superannuation Corporation, page 1714. Mr Watson indicated to his employer that 13 October 1988 was his preferred retirement date.
In October 1997, Comcare determined that Mr Watson’s previous employment was no longer contributing to his condition and that therefore it was no longer liable to pay Mr Watson any compensation.[4] Following an application by Mr Watson to the Tribunal, Comcare agreed to continue to pay Mr Watson compensation from 1 November 1997.[5]
[4] Exhibit 1, T Documents, T21, pages 75-76, Reconsideration decision dated 27 October 1997.
[5] Exhibit 1, T Documents, T23, pages 97-100, Case Summary undated; T24, page 101, Decision (by consent) of the Administrative Appeals Tribunal dated 8 September 1998.
On 11 October 2016, Mr Watson applied for compensation for permanent impairment and non-economic loss for “severe depression and anxiety” sustained on 4 September 1987 under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) (“Permanent Impairment Claim”).[6]
[6] Exhibit 1, T Documents, T51, pages 139-159, Mr Watson’s Compensation Claim for Permanent Impairment and Non-economic loss completed 11 October 2016 by Mr Watson and 23 September 2016 by Dr Archer.
On 3 February 2017, a delegate of Comcare determined that Mr Watson be denied compensation under the Act for permanent impairment and non-economic loss on the basis that (“Determination”):[7]
(a)Mr Watson’s impairment was assessed as permanent prior to 1 December 1988, which is prior to the commencement of the Act;
(b)section 124 of the Act provides that an impairment must be considered under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“1971 Act”) which was the applicable legislation in 1987; and
(c)pursuant to section 39 of the 1971 Act, psychological conditions are not impairments which are entitled to lump sum compensation.
[7] Exhibit 1, T Documents, T52, pages 160-161, Determination dated 3 February 2017.
A previous claim made by Mr Watson for permanent impairment was rejected by Comcare on the same grounds in 1990.[8]
[8] Exhibit 1, T Documents, T11, pages 34-35, Determination declining lump sum compensation for permanent impairment dated 23 October 1990; T13, pages 40-44, Reconsideration Decision dated 20 March 1991.
On 3 March 2017, Mr Watson requested a reconsideration of the Determination decision.[9]
[9] Exhibit 1, T Documents, T53, pages 162-164, Mr Watson’s Request for Reconsideration dated 3 March 2017.
By reviewable decision dated 4 April 2017 the Determination was affirmed, and the Comcare reconsideration officer found that Mr Watson’s compensable condition was permanent prior to the commencement of the Act and that therefore the 1971 Act applied (“Reviewable Decision”).[10]
[10] Exhibit 1, T Documents, T54, pages 165-168, Reviewable decision dated 4 April 2017.
Mr Watson then applied for a review of the Reviewable Decision by this Tribunal.[11]
[11] Exhibit 1, T Documents, T1, pages 6-8, Application for Review of Decision dated 28 September 2015.
ISSUES FOR DETERMINATION
The issue for determination is whether Mr Watson is entitled to compensation for a permanent impairment and non-economic loss under sections 24 and 27 of the Act, which involves determining:
(a)when Mr Watson’s condition became permanent; and
(b)whether Mr Watson has developed a new impairment.
LEGISLATIVE REQUIREMENTS
Compensation for a Permanent Impairment
The right to compensation for an employee for injuries resulting in permanent impairment under the Act is conferred by section 24 of the Act, which relevantly provides:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a) the employee has a permanent impairment…; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
(emphasis added)
“Injury” is defined in section 5A of the Act to mean, so far as this case is concerned:
(1) (a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;…
“Impairment” is defined in section 4(1) of the Act to mean:
the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
“Permanent” is defined in section 4(1) of the Act to mean “likely to continue indefinitely”.
Compensation for Non-economic Loss
If Comcare is liable to pay compensation to an employee for a permanent impairment under section 24 of the Act, Comcare is also liable to pay additional compensation in accordance with section 27 of the Act to the employee in respect of that injury for any non-economic loss suffered by the employee because of that injury or impairment. Section 27(3) of the Act provides that section 27 does not apply however in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non‑economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.
1971 Act
The Act commenced on 1 December 1988 (“Commencement Date”).[12]
[12] Commonwealth of Australia Gazette No. S 196, Friday, 1 July 1988, Proclamation dated 30 June 1988.
Mr Watson’s Compensable Condition was sustained prior to the Commencement Date, when the 1971 Act was in force.
Transitional provisions, set out in Part X of the Act, determine how the Act applies to pre‑Commencement Date injuries. Relevantly here, section 124 of the Act sets out how the Act applies to pre-existing injuries as follows:
Application of Act to pre-existing injuries
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act--under the 1912 Act;
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act--under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c) in any other case--under the 1971 Act as in force when the injury, loss or damage was suffered.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment or death occurred before the commencement of the 1930 Act--under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act--under the 1930 Act as in force when the impairment or death occurred; or
(iii) in any other case--under the 1971 Act as in force when the impairment or death occurred.
…
(emphasis added)
Pursuant to section 124 of the Act:
(a)where an injury was suffered before the Commencement Date, a person is not entitled to compensation under this Act in respect of that injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage under the 1971 Act: section 124(2)(c); and
(b)where a permanent impairment occurred before the Commencement Date, a person is not entitled to compensation under section 24 of the Act if compensation was not payable in respect of that permanent impairment under the 1971 Act: section 124(3)(b).
The effect of section 124 of the Act in this matter is that if Mr Watson has an injury which resulted in an impairment becoming permanent before the Commencement Date, compensation is only payable under section 24 of the Act if compensation would have been payable under the 1971 Act.
Under the 1971 Act, as under the Act, “permanent” is defined to mean “likely to continue indefinitely”.[13]
[13] Section 5, Compensation (Commonwealth Employees) Act 1971 (Cth); section 4, Act.
Section 39 of the 1971 Act provides that lump sum compensation is payable when an injury suffered by an employee resulted in a specified “loss”. “Loss” is defined in section 39(15) as a “permanent loss”. Section 39(4) of the 1971 Act sets out a table reflecting the compensation payable for loss of various parts and functions of the body (often referred to as the “Table of Maims”)[14]. Pursuant to the Table of Maims, no permanent lump sum compensation was payable for a loss arising from a mental health condition.
[14] For example, see Sackville J’s judgment in Alexander Razmovski v Telstra Corporation Ltd; Nancy Dorothea Hoyle v Telstra Corporation Ltd [1997] FCA 257.
Therefore, if the 1971 Act applies, because Mr Watson has an impairment which became permanent before the Commencement Date, compensation is not payable to Mr Watson.
Operation of section 124 of the Act
The Full Federal Court considered the operation of section 124 of the Act in Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555 (“Brennan”). Burchett J explained that, by virtue of section 124(1) of the Act “subject to any qualification imposed by any other provision of Pt X, the date of the injury to which an impairment is attributable is irrelevant to the operation of s 24”.[15] The relevant qualification is provided for in section 124(3) of the Act. Burchett J held the wording of section 124(3) of the Act makes it clear that the 1988 Act applies regardless of when the impairment arose. He said that there may be more than one impairment arising out of the same injury at different times and that if Parliament had “intended to exclude the operation of the 1988 Act wherever an injury had resulted in any permanent impairment arising before the commencing date, it could easily have said so.”[16] Instead, section 124(3) of the Act provides what is compensable in that circumstance.
[15] (1994) 50 FCR 555, at 557.
[16] (1994) 50 FCR 555, at 557.
Gummow J, also in Brennan, said in terms of whether the 1971 Act continues to apply, that the transitional provisions do not “preserve” old rights but instead create “new rights in respect of past events”.[17] Gummow J said three questions need to be answered in determining whether an applicant is excluded from receiving compensation under section 24 of the Act for a permanent impairment. Gummow J set out those questions as follows:[18]
[1]…The first is that there must have been an injury
[2]…the injury must have resulted in an impairment
[3]…[the impairment] must have been permanent, that is to say likely to continue indefinitely. That state of affairs must have been reached before the commencement date.
[17] (1994) 50 FCR 555, at 562; see also Comcare v Levett (1995) 60 FCR 14, at 15.
[18] (1994) 50 FCR 555, at 569-570.
In Comcare v Levett (1995) 60 FCR 14 (“Levett”) the Full Federal Court was also concerned with the construction of section 124(3) of the Act and what was meant by "permanent impairment". The Full Federal Court held that section 124(3) of the Act disentitles an employee to compensation in two situations:[19]
…first is when, as a matter of fact, the employee has received compensation of a lump sum. That has no relevance in the present case. The second is when the person was not entitled to receive compensation of a lump sum for an impairment which occurred while the 1971 Act was in force. Thus, the question becomes whether any impairment suffered by the respondent entitled him to a lump sum under the 1971 Act.
(emphasis added)
[19] (1995) 60 FCR 14, at 18.
The Full Federal Court in Levett pointed out that at the stage where one is determining whether a lump sum would have been payable for an impairment under the 1971 Act, one is not concerned with “the question of whether impairment in s 124(3)(b) refers to permanent impairment or impairment simpliciter”.[20] Once it has been determined whether compensation would have been payable, then one turns to the consideration of whether the impairment concerned was a permanent impairment.
[20] (1995) 60 FCR 14, at 18.
CONTENTIONS – SUMMARY
It is not in dispute that:
(a)Mr Watson suffered from an anxiety and depressive disorder resulting in him needing to cease work on 4 September 1987; and
(b)compensation or liability was accepted for that injury pursuant to the 1971 Act on the basis that Mr Watson’s compensable condition was contributed to by his employment (as the test then was under section 29 of the 1971 Act).[21]
[21] The current test requires a person’s employment to have contributed to the injury to a material degree: section 4, Act.
It is also not in dispute that the 1971 Act did not, and does not, entitle Mr Watson to lump sum compensation for a psychiatric injury if that injury became permanent prior to the commencement of the Act.
Mr Watson’s Contentions
Mr Watson contends that his impairment did not become permanent before 1 December 1988.
Mr Watson contends that the earliest date his impairment, major depressive disorder (“MDD”), could be said to have become permanent was 5 July 1989. 5 July 1989 was the date Dr M R Tennant, Mr Watson’s then treating psychiatrist, reported that, despite time off from work and despite trialling alternative medications, Mr Watson’s condition was not likely to get better. Mr Watson says this is when it can be said that his condition became resistant to treatment and was therefore likely to continue indefinitely.
Alternatively, Mr Watson contends that, if his condition was permanent prior to 1 December 1988, he has suffered from further episodes or aggravations which are new impairments. Mr Watson says these new impairments have resulted in a 25% whole person impairment, (or, alternatively, a 10% whole person impairment).
Mr Watson submits that the further episodes or aggravations are not simply a gradual worsening of his original impairment and that, but for having suffered the original compensable condition, he would not have suffered the subsequent recurrence of the condition.
Comcare’s Contentions
Comcare contends that, if the Tribunal accepts that Mr Watson suffers an impairment because of the injury suffered in 1987:
(a)the impairment became permanent prior to 1 December 1988; and, therefore
(b)the 1971 Act applies; and
(c)the loss arising from mental health conditions was not compensable under section 39 of the 1971 Act.
In relation to Mr Watson’s alternative contention, that he has suffered from a new impairment subsequent to the Commencement Date, Comcare says there is no new impairment resulting from the injury after the Commencement Date.
MR WATSON’S PSYCHOLOGICAL IMPAIRMENT – WHEN DID IT BECOME PERMANENT
Medical Evidence
The relevant medical evidence before the Tribunal has been summarised in the Tables set out below.
Table A sets out the medical evidence in chronological order from the date of injury to the date of Compensation Claim.
In addition to the medical reports and other documents provided to the Tribunal (reflected in Table A), two independent medical experts, Dr Anand Gundabawady and Dr Joseph Mathew, psychiatrists, provided medical reports and gave evidence at the hearing. Dr Gundabawady was engaged by Comcare and provided four reports dated 23 January 2018, 11 February 2019, 5 November 2019 and 13 December 2019. Dr Mathew was engaged by Mr Watson and provided two reports dated 1 May 2019 and 28 October 2019. Oral evidence was also given at the hearing by Dr Brian James White, consultant psychiatrist (retired). Dr White was Mr Watson’s treating psychiatrist between September 1994 and March 2016. Dr White’s opinion, as set out in contemporaneous reports, is referenced in Table A.
There are some reports in the material before the Tribunal of Dr John R Champion, consultant psychiatrist, previously engaged by Comcare to provide an opinion. Dr Champion’s opinion is at odds with most of the medical opinion before the Tribunal. Dr Champion was not called to give evidence. The Tribunal considers it unhelpful and unnecessary to consider Dr Champions’ reports in those circumstances.
Table B provides relevant excerpts of the experts’ opinions as contained in their respective reports. Table C provides a comparison of the experts’ opinions. Table D sets out, in chronological order, the medical treatment Mr Watson has received for his mental health condition since October 1987.
TABLE A: MEDICAL EVIDENCE – CHRONOLOGY (from date of incident)
Date
Event
Author
Diagnosis/Comments
T Doc Reference
2 October 1987
Report
Dr Tennant
41.
Severe depression and anxiety
Will require an extended but unpredictable period away from his work situation
Present medication is Tryptanol 150 mg nocte
ST1
7 October 1987
Sick leave commenced on 4 September 1987
Commonwealth Medical Officer
Depression
Prognosis uncertain
Mr Watson reported that he had symptoms of depression for the past six to eight months, that is since February-April 1987.
Had recently commenced treatment
T3
7 January 1988
Sick leave continued
Commonwealth Medical Officer
Depression
There is a history of depressive symptoms occurring for some months prior to Mr Watson leaving work. He is at present seeing a psychiatrist frequently and he is on regular medication
Prognosis unknown
T4
3 March 1988
Report
Dr Tennant
Depression and anxiety
Very slowly improving
I cannot yet say what residual disability will remain
T5
7 March 1988
Report
Dr Marjorie Cross (Applicant’s general practitioner)
His condition has stabilised
Some instances have aggravated his condition
It is likely he will recover from this depressive illness with psychotherapy and medication
ST5
6 April 1988
Sick leave continued
Commonwealth Medical Officer
Depression
Still on large doses of antidepressants
Prognosis unknown
T7
20 May 1988
Sick leave continued
Commonwealth Medical Officer
Depression
Slow improvement, but still on large doses medication
Prognosis unknown
T8
20 June 1988
Medical certificate
Dr Tennant
Unfit for work
ST20
6 July 1988
Report
Dr Tennant
[The Applicant] has shown only minimal improvement with counselling and several different anti depressants
I believe his condition is unlikely to improve unless he is freed from the responsibility of having to undertake regular employment for an extended period of time
Exhibit 2, Tab 34, page 1216
4 August 1988
Sick leave continued
Commonwealth Medical Officer
Depression
No significant improvement in mental state
Prognosis unknown
Unfit for continued employment but may recover
Recommended that Mr Watson be retired on the grounds of invalidity
T9
5 September 1988
Medical certificate
Dr Tennant
Unfit for work
ST20
October 1988
Medical certificate
Dr Tennant
Unfit for work
ST20
November 1988
Medical certificate
Dr Tennant
Unfit for work
ST20
23 December 1988
Medical certificate
Dr Tennant
Unfit for work
ST20
16 January 1989
Medical certificate
Dr Tennant
Unfit for work
ST20
3 March 1989
Medical certificate
Dr Tennant
Unfit for work
ST20
26 April 1989
Medical certificate
Dr Tennant
Unfit for work
ST20
5 July 1989
Report
Dr Tennant
Unfortunately, in spite of extensive counselling and a number of different anti-depressant medications…He has improved only minimally
ST6
21 August 1989
Medical certificate
Dr Tennant
Unfit for work
ST20
14 November 1989
Report
Dr Tennant
At present it is highly unlikely that he will recover sufficiently to return to regular employment
Condition not improving
I reviewed Mr Watson today and am deep[l]y concerned about the serious deterioration in his condition
ST25
30 April 1990
Approval
Comcare
Applicant retired on account of invalidity due to his psychiatric condition effective October 1988
ST8
14 August 1990
Compensation Claim
Dr Tennant
Severe depression and anxiety
He is continuing to deteriorate
If the impairment is not yet permanent at what time would you expect it to stabilise? Unknown…this is now likely to be permanent
T10
17 July 1995
Report
Dr White
Anxiety and chronic Major Depressive Disorder
The prognosis is that he has a long standing or chronic Major Depressive Disorder…this will persist for the foreseeable future. The severity will fluctuate and… expect that he will have exacerbations and remissions, but never fully resolve. It will be worsened by serious stressors...when stressed his condition does worsen
T14
23 January 1996
Report
Dr White
Major Depressive Disorder
His treatments over the years have served to contain his depression and anxiety but have not been effective in resolving this. He became worse recently following the fire that destroyed his house. He was seriously suicidal, was admitted to…hospital in December 1995
Prognosis is that he will continue to have symptoms of depression
T15
28 February 1996
Report
Dr White
Work stress at work in 1987 brought on a serious depressive disorder. Once this condition has commenced this condition often becomes chronic and persistent
He is likely to continue to have long term depression. The severity may fluctuate
T16
14 August 1996
Report
Dr White
The prognosis is this condition will [continue] for the long term, but the severity will fluctuate
T17
19 March 1997
Report
Dr Champion, (engaged by Comcare)
Mr Watson has no current depressive illness
T18
27 April 1997
Report
Dr White
My opinion is this condition remains unresolved and is a continuation of the depressive disorder from 1987
The house fire in 1995 only worsened the unresolved chronic depression
The impacts on Mr Watson’s functioning are consistent with effects of a chronic unresolved depression
T19
17 April 1998
Report
Dr William Knox, consultant psychiatrist (engaged by the Applicant)
Mr Watson has suffered chronic depression and anxiety since August 1987
T22
13 October 1998
Medical Certificate
Dr White
Chronic major depressive disorder
Indefinitely unfit for work
T25
12 April 2001
Medical Certificate
Dr White
Chronic major depressive disorder
Permanently unfit for work
T26
5 November 2001
Report
Dr White
Condition remains unresolved and is a continuation of the Depressive Disorder from 1987
Prognosis for complete resolution is highly unlikely
Severity will fluctuate
T27
15 April 2002
Medical Certificate
Dr White
Major depressive disorder
Permanently unfit for work
T28
5 May 2003
Medical Certificate
Dr White
Major depressive disorder
Permanently unfit for work
T29
21 June 2004
Medical Certificate
Dr White
Major depressive disorder
Permanently unfit for work
T30
6 May 2005
Medical Certificate
Dr White
Major depressive disorder
Permanently unfit for work
T31
11 April 2006
Medical Certificate
Dr White
Major depressive disorder
Permanently unfit for work
T32
2 April 2007
Medical Certificate
Dr White
Major depressive disorder
Permanently unfit for work
T33
7 April 2008
Medical Certificate
Dr White
Chronic major depressive disorder
Permanently unfit for work
T34
2 June 2008
Medical Certificate
Dr White
Major depressive disorder
Permanently unfit for work
T35
6 April 2009
Medical Certificate
Dr White
Major depressive disorder
Permanently unfit for work
T36
31 March 2010
Medical Certificate
Dr White
Major depressive disorder
Permanently unfit for work
T37
7 March 2011
Medical Certificate
Dr White
Major depressive disorder
Permanently unfit for work
T38
5 March 2012
Medical Certificate
Dr White
Major depressive disorder
Permanently unfit for work
T39
3 June 2013
Report
Dr White
Depression has never fully resolved since initial onset
This is the same episode of Depressive Disorder that has never fully resolved…common pattern with chronic depressive disorders
T42
3 August 2014
Report
Dr White
Depression has never fully resolved
This is the same episode of Depressive Disorder that was initially accepted…likely to continue for the foreseeable future. This is a common pattern with chronic depressive disorders
He has a permanent impairment and this has been present since the end of 1995
His level of permanent impairment meets the 25% level
T46
13 March 2015
Report
Dr Tasawar Aslam, general practitioner
Lately he has noticed deterioration in his depression due to different issues at home, and work
T47
24 March 2015
Report
Dr White
Chronic major depressive disorder
Unfit for work
T48
27 June 2015
Report
Dr White
His depression has been worse at times and has never fully resolved since the first onset
This is the same episode of Depressive Disorder that has never fully resolved
T49
23 September 2016
Report (Compensation Claim for Permanent Impairment)
Dr Archer
Condition unremitting and chronic
Increased vulnerability and increased risk of worse depression
T51
TABLE B: INDEPENDENT EXPERT EVIDENCE – REPORTS
Date of Report
Author
Diagnosis/Comments
Reference
23 January 2018
Dr Gundabawady
Psychiatrist (independent expert engaged by the Respondent)
Major Depressive Disorder, recurrent, current episode of moderate severity in partial remission
Significant symptom relief after medication changed in 1992
Depressive episode secondary to the stressors experienced in 1987 became stable and stationary in 1992
Exhibit 1, Tab 10, pages 289 – 307
27 November 2018
Dr Likely
Psychiatrist (independent expert engaged by the Applicant)
Mr Watson will require ongoing psychological assistance
Exhibit 1, Tab 11, pages 308 – 311
11 February 2019
Dr Gundabawady
Psychiatrist (independent expert engaged by the Respondent)
Major Depressive Disorder, recurrent, current episode of moderate severity in partial remission
Significant symptom relief after his medication was changed in 1992
Depressive episode secondary to the stressors experienced in 1987 became stable and stationary in 1992
Mr Watson has had gradual worsening over time of the same impairment
Chronicity of the condition and the recurrent episodes are not related to the employment related stressors
The impairment secondary to the first episode of depression on a background of work stressors became stable and permanent in 1992
Exhibit 1, Tab 15, pages 323 – 338
1 May 2019
Dr Mathew
Psychiatrist (independent expert engaged by the Applicant)
Major depressive disorder and anxiety …ongoing, fluctuating…
Mr Watson’s depression has resulted in permanent impairment
15% whole person impairment
Exhibit 1, Tab 6, pages 241 – 266
28 October 2019
Dr Mathew, Psychiatrist (independent expert engaged by the Applicant)
Applicant’s condition has not been the subject of multiple remissions and relapses…condition has never resolved
Temporary worsenings…in the face of subsequent (non-work related) stresses
First considered permanent 14 November 1989 (based on report of Dr Tennant of 14/11/89)
Exhibit 1, Tab 8, pages 271 – 279
5 November 2019
Dr Gundabawady, Psychiatrist (independent expert engaged by the Respondent)
It is difficult to provide an exact date of when the psychological condition of major depressive disorder secondary to the work related stressors working at the Patents Office in 1987 became permanent as there is no specific assessment undertaken by a Psychiatrist during this period. From the review of documents, on the balance of probability, I am of the opinion that the psychological condition secondary to the work related stressors would have been permanent before the 1st December 1988
…
Mr Watson’s condition has never resolved, Mr Watson has never been without depressive symptom
Exhibit 1, Tab 18, pages 349 – 358
13 December 2019
Dr Gundabawady, Psychiatrist (independent expert engaged by the Respondent)
It is difficult to give a definitive answer as to whether Mr Watson would have been diagnosed as suffering from depressive disorder in 1994 -1995 had the house fire not occurred. The review of documents of Wooden Valley Hospital do indicate Mr Watson having had suffered from depression after the house fire incident and that the incident was a significant trigger, hence on the balance of probability it would have been unlikely for Mr Watson to have suffered from depression in the absence of the house fire incident, other major life events between 1994-1995, or personality trait
Exhibit 1, Tab 20, pages 360 – 363
TABLE C: MEDICAL EVIDENCE (REPORTS AND ORAL EVIDENCE) – COMPARISON
Issue
Dr Mathew
Dr Gundabawady
Dr White
Mr Watson’s current condition
Major Depressive Disorder
Major Depressive Disorder, recurrent
Anxiety and Chronic Major Depressive disorder
Is Mr Watson’s employment continuing to contribute to his condition?
Yes
What period is required for a depressive disorder to be classified as chronic
Six to 12 months
Six to 12 months [up to six to 12 months of what happened at work and once they’re off work, once they’re not having the stressors which has led to the onset of the condition, one would assume that the condition would become stable and permanent][22]
12 months
Does the factor that caused the initial disturbed mental state, in 1987, continue to contribute to his current mental state
Yes
No… Risk of recurrent episodes is higher in those with a preceding severe episode or multiple episodes
Yes
Is Mr Watson’s condition the result of the workplace event?
There has been a consistent, unremitting depressive illness with some fluctuation since 1987
Same condition but no longer related to employment
His relapses of depression are on a background of psychosocial stressors and comorbid medical condition
Yes
Dr Cross reported in March 1988 that Mr Watson’s condition has stabilised. What is meant by stabilised?
The use of the term “stabilised” suggests that the condition is expected not to neither get better or worse and that is what the writer is saying here
Did Mr Watson have a substantial impairment as of March 1988?
Yes
Yes – same condition as in 1987
Has Mr Watson’s condition ever been in remission?
No – Mr Watson’s condition has not been the subject of multiple remissions and relapses[23]
Yes in 1992 when the Applicant reported a significant improvement of his symptoms following a medication change. His condition then relapsed, and he was subsequently admitted to hospital
No
Did Mr Watson’s condition ever improve?
Never fully resolved
Temporary worsenings (exacerbations) of his condition during periods of subsequent stress
Yes, his condition remitted in 1992 and since then he has had multiple episodes with remissions in between
…what I got from the functioning, what he was doing and how he was functioning, I made the opinion that he had multiple episodes and each time there was a stressor, personal trigger that led to another relapse. Again, with treatment, there was a remission, and so on and so forth[24]
No significant worsening…beyond natural progression…gradual worsening over time of the same impairment[25]
Fluctuated with a degree of improvement, but never remission or resolution and at times, a degree of worsening[26]
At around August- September 1988, was it more likely that Mr Watson’s impairment would resolve in the foreseeable future or have an unknown duration?
So in September 1988, was it more likely it would have an unknown duration, or more likely it would resolve in the foreseeable future?
It was more likely that [Mr Watson’s psychological impairment] would have an unknown duration[27]
So do you agree with what Dr Matthew said, that it was more likely that around about August/September 1988 that Mr Watson’s psychological impairment would have an unknown duration. That that was more likely than the other possibility of having a foreseeable resolution? I would have expected a remission of his condition, as well as the impairment either would have improved, or it would have stayed at the same level[28]
after suffering severe depression for a further, say, 11 months, until August 1988, at that point, it was not likely that the condition would resolve quickly?
Yes, that’s a reasonable judgment[29]
When did Mr Watson’s condition become permanent?
14 November 1989
January 2018: Depressive episode secondary to the stressors experienced in 1987 became stable and stationary in 1992[30]
February 2019: the impairment secondary to the first episode of depression on a background of work stressors became stable and permanent in 1992[31]
November 2019: It is difficult to provide an exact date of when the psychological condition of major depressive disorder secondary to the work related stressors working at the Patents Office in 1987 became permanent as there is no specific assessment undertaken by a Psychiatrist during this period. From the review of documents, on the balance of probability, I am of the opinion that the psychological condition secondary to the work related stressors would have been permanent before the 1st December 1988[32]
Hearing: ...the condition became stable and permanent in December 1988 and the (indistinct) remained stable up until he had the next relapse when his - I think the house burned down and a few other stressors[33]
Does Mr Watson suffer from a new impairment?
No
Did the first episode of depression make Mr Watson more susceptible to subsequent episodes?
Yes
Yes… the first episode does predispose the subsequent episodes but we can’t say that that is the only significant factor[34]
Yes
Is a subsequent episode a new impairment?
No
[22] Transcript, page 171.
[23] Exhibit 1, Tab 8, page 275: Report of Dr Mathew dated 28 October 2019.
[24] Transcript, page 190.
[25] Exhibit 1, Tab 15, page 335: Report of Dr Gundabawady dated 11 February 2019.
[26] Transcript, page 129.
[27] Transcript, page 148.
[28] Transcript, page 169.
[29] Transcript, page 131.
[30] Exhibit 1, Tab 10, page 300, Report of Dr Gundabawady dated 23 January 2018.
[31] Exhibit 1, Tab 15, page 336, Report of Dr Gundabawady dated 11 February 2019.
[32] Exhibit 1, Tab 18, page 353, Report of Dr Gundabawady dated 5 November 2019.
[33] Transcript, page 171.
[34] Transcript, page 202.
TABLE D: CHRONOLOGY OF TREATMENT OF APPLICANT AND MEDICATION HISTORY
Date
Treatment/medication & dosage
Prescribed by/author of document
Reference
2 October 1987
Tryptanol, 150mg nocte
Dr Tennant
ST1, page 171
Exhibit 2, Tab 34, page 1212
21 January 1988
Tryphanol (sic), 25 mgs vi-viii tabs daily
Valium 5 mgs ½-1 tds
…if there is not further progress I may have yo try alternative medications [sic]
Dr Tennant
Exhibit 2, Tab 34, page 1213
3 March 1988
He requires continuing medical treatment – such treatment to include counselling and medication
Dr Tennant
(Letter from Dr Cross, who assessed the Applicant on 17 February 1988)
T5, page 19
Exhibit 2, Tab 34, page 1214
4 March 1988
Mr Watson required continuing psychiatric care and medication.
Dr Cross
ST5, page 182
ST19, page 218
11 April 1988
Still on large doses of antidepressants + has symptoms and signs of depression
Commonwealth Medical Officer
T7, page 23
20 May 1988
Episode of severe depression end 1987. Slow improvement, but still on large doses medication. Has seen Dr Tennant (psychiatrist) – she does not want him to return to work before end July
Commonwealth Medical Officer
T8, page 27
6 July 1988
He has shown only minimal improvement with counselling and several different anti depressants…He is at present completely incapacitated by his depressive condition and totally unable to undertake any form of regular employment. I believe his condition is unlikely to improve unless he is freed from the responsibility of having to undertake regular employment for an extended period of time.
Dr Tennant
Exhibit 2, Tab 34, page 1216
4 August 1988
CMO stated “Continues to be off work; has regular sessions with psychiatrist. Despite this and regular medications there is no significant improvement in mental state – still has suicidal ideation with reduced drive, lack of concentration and seems unlikely to be fit to return to work in the near future”
Chief Medical Officer
T9, pages 30-31
5 July 1989
I have continued to treat Mr. Watson for a depressive illness with associated anxiety. Unfortunately in spite of extensive counselling and a number of different anti-depressant medications:
Tryptanol 8 x 25mg daily
Surmontil 8x 25 mg daily
Nordiol
Prothiaden 8 x 25mg daily
He has improved only minimally. He is able to cope in a limited way in a stress free environment. He has become completely dependent upon his wife who attempts to smooth away any difficulties that arise in his present life situation. Without her support he just could not cope even within his present restricted life situation.
Dr Tennant addressed to “To whom it may concern”
ST6, page 184
Exhibit 2, Tab 34, page 1217
14 November 1989
Since I first saw him he has taken a number of antidepressants and tranquillizers with only partial relief of symptoms.[sic]
I continued antidepressants and added a tranquillizer, Serepax, while making enquiries re a more suitable drug he could safely take.
Dr Tennant
ST25, pages 235-236
Exhibit 2, Tab 34, pages 1218-1219
22 June 1993
Tryptanol (dosage not specified)
Dr Tennant
Exhibit 2, Tab 34, pages 1221-1222
13 July 1993
Tryptanol (dosage not specified)
Some time prior to 11th June 1993 I changed Mr Watson’s medication from 25mgm tablets to 50mgm tablets.
Dr Tennant
Exhibit 2, Tab 34, page 1223
25 August 1994
Amitriptyline (Endep)100 mgms nocte
Rivotril 2 mgms ½-1prn
Panadeine Forte 1 prn for pain
Dr Tennant
Exhibit 2, Tab 34, page 1226
5 November 2001
Doxepin, 200mg/night
He remains on anti-depressant medication which helps control his symptoms but does not fully resolve his condition.
Dr White
T27, pages 104-105
6 May 2005
Lovan (Fluoxetine) (dosage not specified)
Dr White
T31, page 109
7 April 2008
Lovan (Fluoxetine) 40mg daily
Dr White
T34, page 113
6 April 2009
Fluoxetine 40 mg/daily
Temazepam if needed
Dr White
T36, page 115
31 March 2010
Lovan-Fluoxetine 20mg daily
Dr White
T37, page 116
7 March 2011
Lovan (Fluoxetine) (dosage not specified)
Temazepam
Dr White
T38, page 118
5 March 2012
Fluoxetine (dosage not specified)
Temazepam
Dr White
T39, page 119
2 April 2013
Lovan (Fluoxetine) (dosage not specified)
Temazepam
Dr White
T41, page 123
3 June 2013
Fluoxetine 20 mg/daily
Temazepam if needed
Dr White
T42, page 124
Determining Permanency
Before considering the medical evidence, two preliminary issues need to be decided:
(a)Does the Tribunal need to have regard to section 24(2) of the Act in determining whether Mr Watson’s impairment is permanent?
(b)Can permanency be considered with the benefit of hindsight?
Do the matters set out in section 24(2) of the Act need to be considered?
Section 24(2) of the Act provides that for the purposes of determining whether an impairment is permanent, regard must be had to the following factors (“Section 24(2) Factors”):
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
Mr Watson contends that the Section 24(2) Factors must be considered in determining whether Mr Watson’s condition was “permanent” (i.e. section 4, “likely to continue indefinitely”) before 1 December 1988.
Comcare contends that section 24(2) of the Act does not apply here because it was not in force before 1 December 1988. The equivalent of section 24(2) of the Act was not contained in the 1971 Act. Ms Wright, Counsel for Comcare, contends that because an applicant is not, by virtue of section 124(3) of the Act, entitled to lump sum compensation for an impairment which became permanent prior to 1 December 1988, the issue of permanency must be assessed in accordance with the law as it stood prior to 1 December 1988. Ms Wright referred to the decision of Levett (at 19) where the Court found that section 24 does not apply to an employee if the person was not entitled to receive lump sum compensation in respect of an impairment under the 1971 Act. See the discussion of the Federal Court’s position on the operation of section 124(3) of the Act in paragraphs 24-27 above.
Section 124(1) makes it clear that, subject to Part X, the Act applies whether the injury or loss occurred before or after 1 December 1988. That is, but for the transitional provisions, the remainder of the Act applies to “old injuries”. Whether Mr Watson was entitled to lump sum compensation under the 1971 Act is only relevant to the extent of determining whether such compensation continues to be excluded under the Act.
The Tribunal disagrees with Comcare regarding the application of section 24(2) of the Act. Several decisions, binding on the Tribunal, indicate that section 24(2) is relevant to determining the permanency of an impairment prior to 1 December 1988. In Brennan, Gummow J held that, for the purpose of determining whether the exclusion set out in section 124(3) of the Act applies, reference must be made by Comcare to section 24(2) of the Act which sets out what has to be considered in determining whether an impairment is permanent.[35] Gummow J said “[t]he criteria to which Comcare shall have regard in determining whether an impairment is permanent are specified in s 24(2)”.[36] In Department of Defence v West (1998) 85 FCR 491;156 ALR 651 (“West”), Heerey J identified that section 24(2) of the Act is relevant to a determination of whether an impairment has become permanent. Heerey J said:[37]
The respondent’s 1968 injury resulted in “a permanent impairment”. Hence the 1988 Act applies to him, and Comcare is liable to pay compensation to him under that Act (s 24(1)), but subject to Part X (s 124(1)). Prima facie that compensation is to be assessed in accordance with ss 24(2) to (9) and 25…
[35] (1994) 50 FCR 555, at 566-567.
[36] (1994) 50 FCR 555, at 575.
[37] (1998) 85 FCR 491, at 500.
In Excell v Comcare [2008] FCA 757 (“Excell”) the Court was again concerned with whether a permanent psychological impairment became permanent prior to or after the commencement of the Act. The date of the injury was February 1988 and the applicant was retired from the public service and was granted invalidity in April 1989. In 2005 the applicant applied for compensation for permanent impairment. In her application form she described her condition as having changed from “anxiety/depression” to “post-traumatic stress disorder”. Heerey J noted that section 24(2) of the Act was to be applied in determining permanence.[38]
[38] Excell v Comcare [2008] FCA 757, at [44].
Based on the above, the Tribunal finds that section 24(2) is relevant to determining the permanency of an impairment prior to 1 December 1988.
Can permanency be considered with the benefit of hindsight?
Can the issue of permanency be determined with hindsight or must it be assessed based only on what was known at the critical date?
Mr Nolan, Counsel for Mr Watson, submitted that hindsight needs to be exercised with caution and that one still needs to have reference to the section 24 factors.
Comcare submits that permanency can be determined with hindsight and cites as authority the decision of the Federal Court in Excell. In Excell, Counsel for the applicant contended similarly to Mr Watson. They contended that “it is not possible to say with the benefit of hindsight that because the worker is now impaired she must have been always impaired”.[39] Heerey J rejected that contention and found that it was “entirely a matter of fact” whether the applicant’s psychological condition was permanent prior to 1 December 1988.[40] Heerey J noted (at [47]) that considering subsequent events “it was at the time of the Tribunal hearing clear that the condition was permanent before 1 December 1988, whatever the prognosis may have been at that time”.
[39] [2008] FCA 757, at [44].
[40] [2008] FCA 757, at [45]-[47].
In Excell, Heerey J accepted that it was legitimate to consider the impairment with hindsight, as the Tribunal below had done.
This Tribunal has followed Excell on a number of occasions. In Doering and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 752 the Tribunal found (at [13]) that Excell “makes it clear that the assessment has to be made with the benefit of hindsight to assess whether the condition was permanent at the relevant time”. In Cavanagh and Comcare [2008] AATA 553 the Tribunal cited Excell as an example of the well-known principle that “courts and tribunals may determine issues with the benefit of hindsight, where evidence is available prior to the time when a decision is given”.[41]
[41] [2008] AATA 553, at [74], citing cited in Re Wagener and Comcare [2003] AATA 1083; (2003) 78 ALD 596 at [33]-[34].
Therefore, the Tribunal may consider all information, including what is known now, in determining whether Mr Watson had a permanent impairment prior to 1 December 1988. The Tribunal must also take the section 24(2) factors into account.
What is a permanent impairment?
The Act defines “permanent” in section 4(1) of the Act to mean “likely to continue indefinitely”. Although the impairment under consideration arose prior to the commencement of the Act, the transitional provisions make it clear that the assessment of whether a person is entitled to compensation now, is to be assessed on the basis of the Act’s current provisions.
Ms Wright referred the Tribunal to the Federal Court decision of McDonald v Director-General of Social Security [1984] FCA 59; (1984) 1 FCR 354 (“McDonald”). In McDonald, the Federal Court considered the meaning of “permanent” in the context of “permanent incapacity” under the Social Security Act 1947 (Cth) (“the SSA”). The Federal Court held that “a belief - even on a fine balance - that indefinite duration is more likely than foreseeable termination, will suffice”.[42] Mr Nolan says this case is distinguishable because it concerned social security legislation and not the Act. The Tribunal agrees with Mr Nolan to a degree. The Federal Court in McDonald considered the meaning of “permanent” in the context of the SSA, not in the context of the Act under consideration here. However, the Tribunal has, on at least a couple of occasions, taken guidance from McDonald in determining whether an impairment is permanent under the Act. For example, see MacFarlane and TNT Australia Pty Ltd (Compensation) [2020] AATA 3721, at [242] and THSV v Military Rehabilitation and Compensation Commission (Veterans' entitlements)[2018] AATA 3201. In Hunter Quarries v Mexon [2018] NSWCA 178, the New South Wales Court of Appeal also cited McDonald on the question of interpreting permanence in a worker’s compensation claim.
[42] (1984) 1 FCR 354, 361.
The Tribunal takes no particular guidance from McDonald in this context and notes that the Act has defined the meaning of “permanent” in the compensation setting unlike the SSA which has not defined “permanently”. In any event, the normal meaning of the words in section 4 of the Act inevitably result in the same conclusion as the Federal Court in McDonald. That is, in determining permanency, the question is whether it is more likely than not that the impairment will continue rather than cease. Further, as previously mentioned, the Act sets out factors that must be taken into account in deciding whether an impairment is permanent in section 24(2) of the Act (i.e. the Section 24(2) Factors).
CONSIDERATION
Did Mr Watson have a permanent impairment prior to 1 December 1988
Status of Mr Watson’s current condition
There is no dispute that, at the time of the original compensation claim, Mr Watson suffered from MDD.
Mr Nolan said:
the condition is the one condition that he’s been suffering from all along, and the continuing contribution is the fact that work originally caused it and he’s suffering from the effects, albeit at varying intensity over the years, from the same condition that injured him in the first place…
Now, we say … this is the same condition that the applicant was injured from in the first place, and the impairment that Mr Watson or the applicant has suffered due to these life stressors is still attributable to the injury.
(emphasis added)
Mr Watson contended that there was no contemporaneous evidence to suggest his condition was in remission.
Mr Watson argues that his condition has never fully remitted, as contended by Comcare. He relies on the opinions of Dr White and Dr Mathew.
Dr White, Mr Watson’s long-term treating psychiatrist, reported in 2016 that:[43]
Colin has a long history of a chronic Major Depressive Disorder. His depression has been worse at times. The Major Depressive Disorder has never fully resolved since the first onset. He has associated insomnia, tension headaches and migraine headaches. The chronic Major Depressive Disorder has left him vulnerable to dealing with any additional stressors which in turn leaves him prone to severe anxiety and panic attacks. He has chronic difficulty with anxiety and unhappy mood, particularly following any additional stress. He has had thoughts of suicide.
(emphasis added)
[43] Exhibit 2, Summons Records, Tab 34: Records of Dr Brian White, page 1208.
Dr Mathew agreed with Dr White that Mr Watson’s condition has never fully remitted and has instead fluctuated at times.
In Dr Gundabawady’s opinion, the condition has, over time, remitted and relapsed. However, he also accepted that Mr Watson has been left with a 5% impairment. If the condition had fully resolved at some earlier stage as Dr Gundabawady was suggesting, it is unclear how he could be left with a 5% residual impairment from the originally compensated condition.
The experts agree that Mr Watson’s condition is a fluctuating condition. The majority of the expert opinion is clearly in favour of a finding that Mr Watson’s condition has never fully resolved.
The Tribunal prefers the evidence of Drs Mathew and White with respect to whether the condition had ever resolved. Dr White confirmed at the hearing that the condition had never fully remitted, and that Mr Watson had suffered from the same condition since 1987. The Tribunal notes that at the hearing Dr Gundabawady agreed that the condition suffered now is the same condition as in 1987, and he accepted that Mr Watson’s treating psychiatrists at the relevant time are in the best position to determine whether the condition was ever in remission.[44]
[44] Transcript, page 186.
Is there an ongoing contribution from work?
Under the 1971 Act, provided there is some contribution by the applicant’s employment to the condition, that is enough.[45]
[45] Section 29, 1971 Act.
In Dr Mathew’s opinion, Mr Watson’s employment continued to be a contributing factor to his current condition, despite the passage of time. Dr Mathew explained, that in his opinion, the contemporaneous medical records indicate that “there has been a consistent, unremitting, depressive illness with some fluctuations”[46] and that there is no evidence of a depressive disorder prior to the incident at work, yet “subsequent to that event there has always been depression”.[47]
[46] Transcript, page 97.
[47] Transcript, page 97.
Dr White was of the same view as Dr Mathew. Dr White pointed out that Mr Watson’s chronic MDD had left Mr Watson vulnerable to severe anxiety following additional stressors. Mr Watson’s contention is that this vulnerability “forms part of the …impairment”.[48] Dr Gundabawady agreed that Mr Watson is more vulnerable to relapses as a result of the injury suffered in 1987.[49]
[48] Exhibit 4, page 11 at [34], Applicant’s Closing Submissions dated 11 September 2020.
[49] Transcript, page 209.
The Tribunal finds that Mr Watson’s “injury” resulted in an increased susceptibility to continued symptoms, i.e. he is more likely to have further depressive/anxiety episodes as a result of the injury. In Jamieson and Comcare [2019] AATA 5424 (“Jamieson”) the Tribunal considered the meaning of “as a result of”:
[106] The assessment is not simply one of calculus and quantum. It also requires a decision maker to be satisfied that the requisite causal nexus between the claimed incapacity and the accepted ‘injury’ persists during each week of the claimed incapacity for work. This does not require persistence of the ‘injury’ or contemporaneity between the ‘injury’ and the claimed incapacity – the test to be applied is primarily causal rather than temporal. Where a causal link between the claimed incapacity and the ‘injury’ is not established in a particular week or weeks, or a previously established causal connexion is broken or intruded upon and crowded out by other events or circumstances to the extent that the incapacity can no longer truly be said to be ‘as a result of’ the ‘injury’, compensation will not be payable, as occurred in Prain’s case. Nevertheless, it does not follow and it should not be assumed that a claimant will not be entitled to payment of compensation for incapacity in circumstances where the ‘injury’ has resolved but its effects persist. In those circumstances, the question for a decision maker is whether the incapacity claimed is as a result of the previous ‘injury’.
(emphasis added)
Each case has to be determined on its own merits based on its own unique facts and circumstances. In Jamieson the Tribunal found that the events that occurred at Mr Jamieson’s employment had left him “more vulnerable or susceptible to further reactive occurrences and symptoms”[50] and that: [51]
…the increased level of Mr Jamieson’s vulnerability to recurrence of symptoms is part of the ‘resultant effect’ of the ‘injury’, to use the words of the High Court in Canute v Comcare, as adopted by Abraham J in Singleton v Comcare.
[50] [2019] AATA 5424, at [134].
[51] [2019] AATA 5424, at [135], referencing Canute v Comcare [2006] HCA 47 at [10] and Singleton v Comcare [2019] FCA 2104 at [43].
The decision in Jamieson was largely based on a finding that Mr Jamieson had an inherent susceptibility to experience a recurrence of symptoms. The evidence concerning Mr Watson is that the injury had left him with an ongoing vulnerability or susceptibility to further symptoms of anxiety and depression.
Counsel for Mr Watson referred the Tribunal to the Federal Court decision of O’Keefe v Comcare [1998] FCA 603 (“O’Keefe”) where Von Doussa J referred to the applicant having developed a vulnerability to suffer further anxiety symptoms as a result of his injury (which was an anxiety disorder). Von Doussa J said:
What resulted from the ‘injury’ (that is the anxiety disorder) in the present case was the predisposition or vulnerability to suffer anxiety symptoms in circumstances where Mr O’Keefe felt under stress…
For the purposes of the 1988 Act, it is not correct to say that the vulnerability “constitutes nothing. It’s just a vulnerability”. Under the 1988 Act “impairment” is defined to include damage or malfunction of part of the bodily system or function. Mr O’Keefe’s vulnerability is the “impairment” which results from his anxiety disorder.
The issue in O’Keefe was whether his “vulnerability” had become “permanent” before 1 December 1988.
Mr Watson says that, analogous with O’Keefe, his original compensable condition “rendered him vulnerable to future aggravations, stressors, impairments, when he’s exposed to life stressors. So on that basis the causal connection between what initially happened to him at work and his subsequent impairments as a result of those worsenings are connected” and give rise to a fresh impairment.[52]
[52] Transcript, page 223.
Ms Wright alerted the Tribunal to the fact that in a recent Tribunal decision of Spradau and Comcare [2020] AATA 2054 the Tribunal distinguished O’Keefe on the basis that it was not comparable on the facts before it.[53]
[53] [2020] AATA 2054, at [62].
The Tribunal agrees that O’Keefe is not binding authority on the issue of vulnerability and is specific to its own facts. Here, the evidence of the medical experts was that Mr Watson had been left with a vulnerability to further episodes or exacerbation of his condition. The question, as in O’Keefe, is whether that vulnerability became permanent prior to the Commencement Date.
Section 24(2) Factors
Duration of the impairment (section 24(2)(a), Act)
A “chronic disorder” is defined in Black’s Medical Dictionary 43rd Edition to mean “a persistent or recurring condition or group of symptoms. Chronic disorders tend to continue or even steadily deteriorate, despite treatment”.[54]
[54] Edited by Dr Harvey Marcovitch, Blacks Medical Dictionary (Bloomsbury, 43rd ed, 2017).
As at December 1988, Mr Watson had been suffering from his mental health impairment for nearly 15 months. All medical specialists agree that MDD can be considered as a “chronic” disorder after six to 12 months.
Likelihood of Improvement/Had Mr Watson undertaken all reasonable rehabilitative treatment for the impairment by 1 December 1988? (sections 24(2)(b) and 24(2)(c), Act)
Mr Nolan submitted that the earliest that Mr Watson’s condition could be considered permanent was July 1989 when Dr Tennant confirmed she has trialled different medications and he had had time away from the workplace. Dr Tennant was Mr Watson’s treating psychiatrist from 1987 to 1994.
Mr Nolan submitted that, as at December 1988, Mr Watson’s condition was not permanent because Mr Watson was still being treated and Dr Tennant “was still optimistic that improvement would occur”.[55] The Tribunal does not interpret the reports of Dr Tennant in that way. The fact that treatment was continuing does not mean the condition was not permanent. Dr White told the Tribunal that Mr Watson would require ongoing treatment despite the condition being considered “chronic”.[56] In March 1988 and May 1988, the Commonwealth Medical Officer noted Mr Watson was “still on large doses of antidepressants”.
[55] Transcript, page 240.
[56] Transcript, page 130.
On 7 October 1987, the Commonwealth Medical Officer recorded that Mr Watson reported that he had had symptoms of depression for the past six to eight months, that is since February-April 1987.[57]
[57] Exhibit 1, T Documents, T3, page 12, Medical examination for continued employment or retirement on invalidity grounds conducted on 7 October 1987.
In February 1988, the Applicant’s solicitor asserted that the Applicant had a total incapacity from February 1988 as a result of his “breakdown” (i.e. the psychiatric impairment resulting from the contribution of workplace factors).[58]
[58] Exhibit 1, ST4, page 180, Applicant’s Statement dated 12 February 1988.
By August 1988, none of the treating doctors’ reports or records suggested any likelihood of Mr Watson’s condition significantly improving with time and the Commonwealth Medical Officer considered Mr Watson should be retired.
Despite treatment for 11 months, there had been no significant improvement in Mr Watson’s condition. Dr Mathew said “if he has been unwell for 11 months or something, and he has had treatment, then the prognosis is worse, definitely worse”.[59] Dr Mathew was asked whether as at September 1988, it was more likely Mr Watson’s condition would have an unknown duration, or more likely it would resolve in the foreseeable future? Dr Mathew said “It was more likely that it would have an unknown duration... I think it would be safer to say, ‘Look, we’re not sure’”.[60]
[59] Transcript, page 147.
[60] Transcript, page 148.
Dr White told the Tribunal that “with antidepressant medication, if the medication is both effective and tolerated by the patient, the normal length of time to get significant improvement is three to four weeks and three to four months, sometimes longer, for pretty much nearly best effect, but sometimes best effect can take six months”.[61] Dr White said that after 12 months, the condition could be considered as chronic and would need ongoing treatment. Dr White said Mr Watson’s condition had been constant with fluctuations since 1987.[62]
[61] Transcript, page 129.
[62] Transcript, page 130.
Dr White was asked:[63]
Ms Wright:And do you also agree that after suffering severe depression for a further, say, 11 months, until August 1988, at that point, it was not likely that the condition would resolve quickly?---
Dr White:Yes, that’s a reasonable judgment
[63] Transcript, page 131.
In terms of trialling different medications, Dr White said it is reasonable to try alternative medications.[64] Dr White made no comment that this would extend the 12 month period he referred to. That is, even if more pharmacology treatment was trialled after 12 months, this would still, according to the experts, be considered a chronic condition at the 12 month mark.
[64] Transcript, page 139.
In January 1988, four months after the onset of impairment, Dr Tennant reported that alternative medication may need to be tried. It is reasonable to conclude that by this stage all reasonable rehabilitative treatment, namely alternative pharmacology treatment, had not yet been undertaken (section 24(2)(c), Act). Table D summarises what is known of the medical treatment Mr Watson had received between September 1987 and December 1988.
It can be seen from the evidence set out in Table D that Mr Watson had trialled various medications. In July 1989, Dr Tennant reported that Mr Watson had trialled a few different anti-depressants – Tryptanol, Surmontil, Nordiol and Prothiaden – and he had engaged in extensive counselling. Tryptanol was commenced by at least October 1987. Several of the other medications had been trialled by July 1988. It is reasonable, therefore to conclude that, by July 1988, Mr Watson had undertaken all reasonable treatment, to no avail.
Although, in March 1988 Dr Cross considered Mr Watson was “stable”, she thought he would recover with psychotherapy and medication (i.e. further reasonable rehabilitative treatment was required). Dr Cross is not a psychiatric expert. With hindsight we know that Mr Watson did not recover.
Dr Cross referred to Mr Watson’s condition having “stabilised” in March 1988, Dr Mathew considered this to be a reference to the condition not being expected to get better or worse.[65] The Tribunal finds this is further support for a finding that the condition was likely to continue indefinitely.
[65] Transcript, page 119.
In July 1988, Dr Tennant considered that remaining at work was hindering Mr Watson’s recovery. By July 1988, Mr Watson had already been away from work since September 1987. He never returned to work. So, by July 1988 Mr Watson had already trialled being away from work for nine months. He was already in a position where he could concentrate on recovery. This aspect of “treatment” had already been undertaken for a significant period by December 1988.
After 12 months of treatment, the experts agree that the condition was “chronic”.
The Tribunal also notes that at no time was it suggested by the Commonwealth Medical Officer or any of Mr Watson’s treating medical practitioners that Mr Watson was able to return to work or that an attempt to return to work should be undertaken. By August 1988, it was suggested by the Commonwealth Medical Officer, despite Mr Watson’s young age of only 37 years, that he be retired. This was supported by Dr Tennant and Dr Cross. This is not a decision one would expect to have been made if the condition was not likely to continue indefinitely.
Dr Mathew said it was unusual to see someone of 37 years of age with no psychiatric history having to cease work.
Mr Nolan asserted that Dr Gundabawady changed his view from the condition being stable in 1992 to 1988. Mr Nolan submitted that “when questioned about why he [Dr Gundabawady] came to that conclusion [that the condition was permanent in 1988], he’s based it on an assumption that the condition would’ve become stable and permanent at that point. He hasn’t looked at the specific, in my submission, looked at the specific details of the applicant’s case.”[66] In his first two reports Dr Gundabawady wrote that Mr Watson’s impairment became stable and permanent in 1992. Dr Gundabawady was then asked by Comcare to consider the status of Mr Watson’s condition as at 1 December 1988. In his third report Dr Gundabawady agreed that the condition was permanent as at 1 December 1988.
[66] Transcript, page 240.
Dr Gundabawady explained he was answering a specific question in his third report and in his opinion “up to six to 12 months of what happened at work, and once they’re off work, once they’re not having the stressors which has led to the onset of the condition, one would assume that the condition would become stable and permanent”.[67] Mr Nolan is correct when he says Dr Gundabawady’s opinion is an assumption. However, it is an assumption, or expectation, based on his specialist training and expertise.
[67] Transcript, page 171.
Ms Wright pointed out that for purpose of preparing his third report, Dr Gundabawady was supplied with new material which included medical and other evidence which Dr Gundabawady had not previously seen or considered. Comcare’s instructing solicitors also provided guidance in their letter of instruction regarding the meaning of permanence and impairment under the Act (referring to relevant case law). This information/guidance had not previously been provided to Dr Gundabawady. No criticism of the legal summary was made by the applicant.
Mr Nolan submitted that during cross-examination Dr Gundabawady could not identify the “new” material that resulted in his deciding the condition became permanent before the Commencement Date. To be fair to Dr Gundabawady, Mr Nolan did not refer him to his briefing letter or ask him to consult his report. It is clear from the instruction letter to Dr Gundabawady what new medical evidence from 1987-1988 was provided to Dr Gundabawady. Dr Gundabawady was also provided with explanations of the meaning of “permanent”. Dr Gundabawady explained that his opinion was based on what he knew from what was available. His expert opinion, based on what psychiatrists understand about MDD, was that after six to 12 months of a person suffering from the condition when they are no longer presented with the triggering stressors, “one would assume that the condition had become stable and permanent”.[68] It is clear that Dr Gundabawady’s “assumption”, or expectation, was based on his expertise as a psychiatrist and based on his review of the material provided to him by Comcare’s solicitors.
[68] Transcript, page 171.
Dr Gundabawady’s evidence was that he had not changed his opinion. His comment about stability concerned the fact that Mr Watson’s condition stabilised in 1992 following some episodes after December 1988. This did not mean that the condition was not permanent as at December 1988.
In Dr Gundabawady’s opinion, based on the contemporaneous medical records and what is known now about Mr Watson’s condition and its progression, as at March 1988 Mr Watson’s condition was not likely to improve. The fact that Mr Watson still required treatment does not mean that his condition was not permanent at that time. Dr Gundabawady said that while Dr Tennant’s report of July 1989 may indicate that Mr Watson’s condition was permanent at that time, one could equally say his condition was permanent in July 1988.
Mr Watson says Dr Gundabawady’s evidence was that the condition was not permanent. What Dr Gundabawady said was this:[69]
Ms Wright:So do you agree with what Dr Matthew said, that it was more likely around August/September that Mr Watson’s psychological impairment…would have an unknown duration?
Dr Gundabawady: …I would disagree with that, because it would be – given the circumstances with what he was going through, I would have expected the resolution, I had mentioned in one of my report, that in the absence of any other triggers and if it was only for the work related stressors, I would have expected a remission of his condition, as well as the impairment either would have improved, or it would’ve stayed at the same level.
[69] Transcript, page 169.
Dr Gundabawady’s opinion was at that time, namely August/September 1988, he would have expected it to resolve. That is not the same as saying with hindsight I believe it was permanent before December 1988, which is where his opinion ultimately rests.
Dr White and Dr Mathew were not provided with guidance of the legal definition of permanent.
Dr Mathew considered that as at 1988 Mr Watson’s condition would have had an unknown duration. Dr Mathew told the Tribunal that after 11 months “you would be able to venture an idea that, look, I don’t think it’ll – it’ll probably not get better…the prognosis is worse, definitely worse. And the more anti-depressants you try, each one worsens the chance of the next not working”.[70]
[70] Transcript, page 149.
The Tribunal finds that this equates to the possibility of the condition continuing for the indefinite future.
Conclusion – Permanency
Given:
(a)the length of time Mr Watson had been suffering from the impairment, without significant improvement;
(b)the extent of the psychotherapy and pharmacology treatment trialled;
(c)that Mr Watson had been off work since September 1987, having been determined as unfit to work; and
(d)the opinions of the medical experts;
the Tribunal finds that, as at 1 December 1988, Mr Watson’s impairment was likely to continue indefinitely and was therefore “permanent”.
Pursuant to section 124(3) of the Act and section 39 of the 1971 Act, no compensation is payable for Mr Watson’s permanent impairment.
HAS MR WATSON SUFFERED FROM A NEW IMPAIRMENT POST 1 DECEMBER 1988?
Mr Watson’s alternative argument is that even if his impairment was permanent before 1 December 1988, its worsening, and the development of subsequent episodes, are themselves new impairments.
The question is whether any “episodes” subsequent to 1 December 1988 are “new” impairments.
The Federal Court has made it clear (albeit with some disagreement and refinement along the way) that a gradual worsening of a condition does not constitute a new impairment.
In the first reported case on the transitional provisions is Re George John Blackman v Australian Telecommunications Corporation [1990] FCA 295 (“Blackman”). In Blackman there was evidence that the applicant’s condition had deteriorated, despite treatment alleviating the effects of the condition at one stage. The Full Federal Court set out the Applicant’s contention as follows:
[16] …Mr Joseph's contention amounted to this: although there is only one disease and, having regard to the definition of injury in s.4(1), therefore only one "injury", if the impairment consequent upon it has worsened substantially after the commencing date, then that worsening in itself constituted an "impairment" within the meaning of sub-s.124(3), occurring after the commencing date.
The Full Federal Court determined that this is not how the provisions of the Act are to be read and explained:
[17]…The scheme of the Act, in particular of ss.24 and 25, is not that as a disease progresses, the aggravation of its consequences constitutes a series of new impairments, each giving rise to a separate liability to pay compensation.
[18] To achieve the result that a variation (substantial or otherwise) of the degree of impairment should be treated as a new impairment for the purposes of sub-s.124(3), different language would have been necessary. The natural reading of "impairment ... that occurred before the commencing date" is such as to cover the case in which there is but a single impairment, which came into existence before the commencing date and thereafter fluctuated in intensity but generally worsened.
[19] The consequence is that the applicant is not entitled to compensation under ss.24 and 25 of the 1988 Act in respect of his permanent impairment, because it occurred, i.e. came into existence, before the commencing date.
(emphasis added)
Some judges of the Federal Court have stated that Blackman should be exercised with caution (see for example Brennan). The approach in Comcare Australia (Department of Defence) v Maida [2002] FCA 1284; (2002) 36 AAR 69 (“Maida”) has been followed by the Federal Court in recent decisions.[71] In Maida Mansfield J said: [72]
…the nature and extent of the loss of use or malfunction is critical to determining whether an impairment has changed to such an extent that it is a further or new impairment. Merkel J accepted that gradual worsening does not result in a series of separate or further impairments. Questions of fact and degree will be involved in making a qualitative assessment as to whether, in a particular case, the permanent impairment existing as at 1 December 1988 has deteriorated to an extent that it is properly to be characterised as a further or different impairment from that which existed at the commencement date.
[71] See Comcare Australia v Mathieson (with Corrigendum dated 15 March 2004) [2004] FCA 212.
[72] [2002] FCA 1284, at [25].
Mansfield J explained (at 79-70) that the law requires that there be a “change in the underlying patho-physiological condition”, i.e. a qualitative change in the condition before a significant worsening of an impairment could constitute a new or distinct impairment:[73]
A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho‑physiological condition, so that there has been a qualitative change to the impairment - that is, the development of a new impairment.
[73] Comcare Australia (Department of Defence) v Maida [2002] FCA 1284; (2002) 36 AAR 69, at [28].
In Comcare Australia v Mathieson (with Corrigendum dated 15 March 2004) [2004] FCA 212, Weinberg J examined the meaning of “pathophysiological”, as referred to by Mansfield J as follows:
54 The term "pathophysiological" is defined in the Oxford English Dictionary as "pertaining to pathophysiology". That term, in turn, is defined as "the physiological processes associated with disease or injury; the study of such processes". It appears to be a word that is understood in scientific circles, and seems to capture the essence of what Merkel J had in mind when he referred to a "qualitative" change in the nature of a permanent impairment.
In Maida, Mansfield J noted that in West “the expression “a permanent impairment” in s 124(3) (sic) of the SRC Act was accepted as meaning the same as “a permanent impairment” in s 24(1) of the Act. …the concept of “a permanent impairment” in s 24(1), and as described in s 24(2), is a different concept from that of the degree of permanent impairment”.[74]
[74] Comcare Australia v Maida [2002] FCA 1284, at [13].
In West, Heerey J, at 506, referred to “a change of the underlying patho-physiological condition or a significant worsening of an impairment which is likely to have come about as a result of that change” as relevant to determining “whether the permanent impairment that the respondent suffered at the date of the hearing was the same permanent impairment as that which he had suffered as at or prior to 1 December 1988.”
In Brennan, Burchett J held that whether a worsening of a condition results in a new impairment is a factual matter and referred to whether there was a “significant new development” or “separate dysfunction”.[75]
[75] (1994) 50 FCR 555, at 560.
In West, the Federal Court was concerned with whether a deterioration in a permanent impairment constitutes a different impairment. Merkel J followed Brennan in finding that “where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it is compensable by a lump sum payment under ss 24 and 25.”[76]
[76] Department of Defence v West (1998) 85 FCR 491, at 512.
All of the medical experts agreed that fluctuations or exacerbations of MDD is a common feature and, further, that deterioration over time is to be expected.
Mr Watson relies on an episode in December 1995 following his house burning down with his possessions. He was admitted to hospital and attempted suicide following the incident. Mr Watson contends that this indicates he suffered from a new impairment. Mr Nolan cited relevant authorities but did not explain how the evidence demonstrates that there has been a qualitative change in Mr Watson’s impairment.
Mr Nolan says the evidence indicates that as a result of the compensable condition, Mr Watson has been left vulnerable to further episodes and fluctuations, and that he is therefore still suffering from the compensable injury and there is an ongoing contribution to his condition by his previous employment.
Accepting for the moment that what Mr Nolan says is correct, it still has to be established that Mr Watson has suffered a “new” impairment. What is particularly notable here is the lack of medical evidence between 1990 and 1995. The Tribunal has no medical evidence of the status of Mr Watson’s condition during that period. The first available evidence is a report of Dr White in 1995 which confirms that there had been no underlying pathological change to Mr Watson’s condition, but that his condition had been exacerbated following the house fire. In 2015, Dr White reports that Mr Watson was still suffering from the same episode of depressive disorder that never fully resolved.
Pursuant to Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-V), MDD is considered to have remitted if a person has had no symptoms for two months. We have no contemporaneous medical evidence to confirm whether the condition remitted at some point between 1990 and 1995. This makes it difficult to assess whether the current condition was a new condition, and whether a fresh compensation claim should have been lodged.
As in Maida, counsel for the applicant did not “point to any evidence which might explain whether or how there was a qualitative change in the respondent’s condition, that is some fresh or additional patho-physiological change in the condition”.[77]
[77] Comcare Australia v Maida [2002] FCA 1284, at [32].
Mr Nolan took the Tribunal to the Comcare Guidelines Table 5.1[78] to demonstrate that, because Mr Watson has an increased vulnerability to further depressive episodes, he therefore meets two criteria for a 10% impairment, namely minor distortions in thinking and he suffers reactions to stressors of daily living with minor loss of personal or social efficiency. Mr Nolan relied on Bergersen and Comcare [2007] AATA 1373 (“Bergensen”) and Springhetti and Comcare [2007] AATA 1504 (“Springhetti”) as two Tribunal decisions which accepted that an increased vulnerability to future depressions was a “minor distortions of thinking”. Bergersen and Springhetti are specific determinations on the specific facts in each case, they are not binding authority.
[78] Safety, Rehabilitation and Compensation Act 1988 – Guidelines to the Assessment of the Degree of Permanent Impairment Edition 2.1 (Consolidation 1), chapter 5 – psychiatric conditions, table 5.1.
In Mathieson, Weinberg J agreed with Gummow J in Brennan, “that the use of the Guide, as a step in determining the existence of a permanent impairment, is erroneous.”[79]
[79] Comcare Australia v Mathieson (2004) 39 AAR 450, at [57].
There seems to be unanimous agreement amongst the medical specialists that the condition now is the same condition as that originally suffered. That is, it is not new. Dr Mathew told the Tribunal that the contemporaneous medical records indicate that Mr Watson has had a “consistent, unremitting depressive illness with some fluctuation since 1987.”[80]
[80] Transcript, page 97.
Dr White said Mr Watson’s condition was “fairly constant with fluctuations”.[81]
[81] Transcript, page 130.
Dr Gundabawady said the condition is the same. Dr Gundabawady did not accept that there was a different organic cause or any change in the pathophysiology of Mr Watson’s condition.[82] Unlike Dr Gundabawady, Mr Nolan did not specifically ask Dr Mathew and Dr White if, in their opinion there had been any “pathophysiological” change in Mr Watson’s condition.
[82] Transcript, page 203.
For there to be a new impairment arising out of an injury there must be a qualitative and quantitative change in the condition.[83] A “gradual worsening does not result in a series of separate or further impairments. Questions of fact and degree will be involved in making a qualitative assessment as to whether, in a particular case”.[84] This was the approach applied in the subsequent decision of Mathieson, at [53]. In Mathieson, Weinberg J referred to there needing to be an “identifiable change in the underlying patho-physiological condition” and noted that “reasonable minds, including the reasonable minds of experts, can differ as to whether the level of deterioration in a person’s condition amounts to a new condition”.[85]
[83] Comcare Australia v Maida [2002] FCA 1284, at [31].
[84] Comcare Australia v Maida [2002] FCA 1284, at [25], referring to Department of Defence v West (1998) 156 ALR 651; 85 FCR 491.
[85] Comcare Australia v Mathieson (2004) 39 AAR 450, [52] and [55].
The evidence here does not indicate that Mr Watson’s condition has deteriorated to such an extent that it is properly to be characterised as a new impairment. There is no evidence of a patho-physiological change in Mr Watson’s condition. In fact, the medical evidence was that relapses or recurrences of episodes is what is expected of a long standing chronic depressive condition. There is no evidence that the “deterioration is other than a progression or gradual worsening of the condition”.[86] All of the medical experts describe Mr Watson’s condition as the same condition or impairment as per his original claim.
[86] Lockett v Military Rehabilitation & Compensation Commission [2006] FCA 946, at [34].
In 2017, Dr Megan Archer, Mr Watson’s then treating psychiatrist, reported that Mr Watson denied suicidality and “has positive plans” and was engaged socially at church and deriving pleasure from gardening.[87] This evidence does not support a finding that there has been significant worsening of the condition such as would give rise to a new impairment.
[87] Exhibit 2, Summons Records, Tab 36: Records of Trinity Clinic Cairns, page 1455.
Dr White said Mr Watson suffered from the following while he treated him – poor memory, poor concentration, lack of energy, loss of self-confidence. These symptoms or features of his condition are the same as those claimed by Mr Watson in August 1990 when he submitted his initial claim for permanent impairment compensation for the accepted condition.
The evidence indicates that this was an exacerbation of his condition, but there is no evidence of any underlying qualitative or pathological change.
The Tribunal finds that given the medical experts say the vulnerability results from having MDD, that vulnerability, or impairment was present and, therefore, permanent before 1 December 1988. Mr Watson did not develop a vulnerability after 1988, it was already there. Even if the evidence supported a finding that his vulnerability developed later in time, it does not constitute a change to the underlying pathology of the condition.
CONCLUSION
The Tribunal concludes that Mr Watson was suffering from a permanent impairment prior to 1 December 1988 and that he has not developed a new impairment.
Therefore, the Tribunal finds that no compensation is payable to Mr Watson under sections 24 and 27 of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
..................................[SGD]......................................
Associate
Dated: 22 December 2020
Dates of hearing: 15 June, 16 June and 8 September 2020 Date final submissions received: 18 September 2020 Counsel for the Applicant: Mr Nolan Solicitors for the Applicant: Maurice Blackburn Counsel for the Respondent: Ms Wright Solicitors for the Respondent: Australian Government Solicitor
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