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Dillon and Comcare (Compensation) [2019] AATA 214 (22 January 2019)

Last Updated: 22 February 2019

Dillon and Comcare (Compensation) [2019] AATA 214 (22 January 2019)

Division: GENERAL DIVISION

File Number(s): 2016/0090

Re: Tracie Dillon

APPLICANT

And Comcare

RESPONDENT

DECISION

Tribunal: Mr A G Melick AO SC, Deputy President

Date: 22 January 2019

Date of written reasons: 7 February 2019

Place: Hobart

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.

[sgd]........................................................................

Mr A G Melick AO SC, Deputy President

Catchwords

COMPENSATION – generalised anxiety disorder – impairment permanent – degree of permanent impairment – liability for compensation – aggravation of depressive disorder – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975

Safety, Rehabilitation and Compensation Act 1988

Cases

KTKY v Comcare [2015] AATA 309

Secondary Materials

Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1

REASONS FOR DECISION

Mr A G Melick AO SC, Deputy President


7 February 2019

1. The applicant seeks a review of a decision of the respondent dated 21 November 2015 which affirmed an earlier determination dated 13 July 2015. It was determined that the applicant’s generalised anxiety disorder, an accepted condition, resulted in a whole person impairment of 10 per cent permanent impairment under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). It was also determined that the applicant is entitled to compensation for non-economic loss suffered as a result of the accepted condition with the following scores:
   • (a) Pain - zero,
   • (b) suffering - four,
   • (c) mobility - zero,
   • (d) social relationships - four,
   • (e) recreation and leisure - three,
   • (f) and other loss - zero.
2. The issues that should be determined, according to the respondent, are as follows:
   • (a) does the applicant suffer from an impairment which results from her accepted condition;
   • (b) if so, is the impairment permanent, having regard to the factors set out in section 24(2) of the SRC Act;
   • (c) if so, what degree of permanent impairment, as assessed under the provisions of the Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1 (the Guide); and
   • (d) Is the respondent liable to pay compensation to the applicant under section 27 of the SRC Act for non-economic loss?
3. The applicant gave evidence and also provided a statement (exhibit 2), which she adopted when she gave evidence. I found her to be a frank and honest witness, clearly very significantly affected. I am bound by the Guide, which is an approved guide pursuant to section 28 of the SRC Act, which was produced by Comcare and this edition 2.1 was approved by the Minister on 16 November 2011. A useful summary of the application of the Guide appeared at KTKY v Comcare (2015) AATA 309 (KTKY), particularly at paragraphs 112 and 127 to 129.
4. I am satisfied from the evidence contained in the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, exhibits 1A, 1B, exhibit 2, the applicant’s sworn evidence and the evidence of the applicant’s grandmother as to the following facts. The applicant was born in 1974 and was formerly employed as a customer service officer at the Department of Human Services. In November 2004, she lodged a claim for workers’ compensation for depression, stating that the condition was caused by inappropriate behaviour of a customer. On 11 February 2005, Comcare accepted liability for aggravation of depressive disorder under section 14 of the SRC Act. In July 2010, the applicant was diagnosed with bipolar disorder and on 3 April 2012, while the applicant was working as a customer service officer at the Rosny Park Service Centre, a customer spat on her and verbally and physically abused her. In May 2012, the applicant lodged a claim for workers’ compensation for depression and anxiety.
5. Without going into all of the relevant reports, I note they have been dealt with accurately at 3.7, 3.8, 3.9 and 3.10 of the respondent’s statement of facts, issues and contentions.
6. In August 2013, the applicant’s condition deteriorated significantly enough for the agency to offer redeployment to Medicare at a lowered position. On 14 and 21 October 2013, the applicant was admitted to Royal Hobart Hospital for two separate suicide attempts. On 28 March 2014, a delegate of the Commonwealth Superannuation Corporation issued an invalidity retirement certificate to the applicant, certifying she was entitled to receive benefits under the Public Sector Superannuation Scheme. In April 2014, the applicant was invalidity retired due to a total and permanent occupational incapacity resulting from her diagnosed psychiatric condition based upon the evidence of a consultant psychiatrist, Dr Peter Smith, dated 16 December 2013.
7. By a letter dated 1 April 2015, the applicant’s former solicitor lodged a claim for permanent impairment on behalf of the applicant dated 15 March 2015. The applicant’s self-assessed Non Economic Loss (NEL) scores were as follows. Pain: one; suffering: five; mobility: three; social relationships: five; recreation and leisure activities: five; and other loss: severe. On 13 July 2015, Comcare determined the applicant was entitled to compensation for permanent impairment and non-economic loss in respect of the accepted condition for a whole person impairment of 10 per cent and for the following non-economic loss scores, relying upon the report of consultant psychiatrist Dr Scott Chambers: pain: zero; suffering: four; mobility: zero; social relationships: four; recreation and leisure: three; other loss: five.
8. However, on 23 July 2015, the applicant’s treating psychiatrist Dr Rybak sent a facsimile to Ms Marilyn Valdes at Comcare requesting urgent approval for the applicant being admitted at St Helen’s Private Hospital following an appointment with Dr Rybak. The delegate denied liability for the hospital admission, based upon a contention that the injury arose as a result of the compensation process and was not related to employment. However, on 24 July 2015, the applicant was admitted to St Helen’s Private Hospital under the care of a treating psychiatrist, Dr Rybak. She was discharged on 29 September 2015 and in July 2015 the applicant’s former solicitor requested a reconsideration determination dated 13 July 2015 on the basis the applicant’s degree of permanent impairment should have been higher than a 10 per cent whole of person and that some of the NEL scores had been incorrectly reduced. That was followed up later by a report dated 23 October 2015 by Dr Phillip Reid.
9. By a review of the decision dated 21 November 2015, the review officer affirmed the determination dated 13 July 2015 and around March 2016, the applicant went to live with her parents in Queensland. The applicant stopped taking medication at that time and according to her treating psychiatrist, Dr Rybak, she was probably manic whilst in Queensland and using the drug commonly known as ‘ice’ before she returned to Tasmania in January 2017. In early 2017, the applicant had been psychiatric hospitalised for two weeks and prescribed an antipsychotic drug, olanzapine, which was originally 20 milligrams daily and is now down to 2.5 milligrams. She attended Dr Rybak in around July 2017, who prescribed further medication to treat her psychiatric condition and also to treat her generalised anxiety condition. Doctors White and Rybak and the applicant agreed that the applicant’s psychiatric condition could not be regarded as stabilised around October 2017, given the robust psychiatric symptoms and that pharmacotherapy for her bipolar affective disorder had only recently commenced. The applicant also noted that her generalised anxiety disorder was also brought into play at that stage.
10. The evidence of the applicant and her grandmother made it clear that things had not been good since 2012. The applicant was involved in no recreational activities and when the children are not at home, requiring taking them to school and having meals made; she spends up to two weeks at a time in bed. She has gone downhill since June 2018. She says she is capable of looking after herself. She described herself as “pretty right”. But it would appear from the evidence from time to time that is the highest it can be taken. In recent weeks, her ex-husband comes over every day to make sure she was not dead. He directs her to get up and get dressed. She has only had one relationship outside of the family, a girlfriend who she was seeing at one stage twice a week, but only for one hour periods up until now.
11. I am satisfied that the applicant is suffering from mixed anxiety and depression disorder; her condition has resulted in symptoms of severe anxiety, panic disorder and all symptoms of depression; the condition has stabilised indefinitely and is chronic; the applicant has a severe impairment and she is not able to fulfil her usual professional or social or family obligations. Those were the findings of Dr Rybak and when she presented to Dr Chambers, the consultant psychiatrist in June 2015, he noted the following: that she was suffering from a major depressive disorder with comorbid anxiety, recurrent type, with a differential diagnosis of disorder of bipolar II disorder. He also stated:

Psychiatric presentation was multifactorial, but the significant, most recent mood deterioration was a workplace incident in 2012. Since ceasing work in 2012, she has continued to experience chronic pain that has contributed to her mood disorder.

12. He was of the view that her current psychiatric symptoms had been present since 2012 and there had been limited improvement in her symptoms despite treatment with antidepressant medication and inpatient psychiatric admission. He opined at that stage in 2015 there was likely to be limited improvement in the foreseeable future and that has been borne out by subsequent reports. He assessed her level of impairment at 10 per cent on the basis that she has encouragement from her husband in the activities of daily living, and she is still able to maintain self-care. From a psychiatric perspective, she requires support and encouragement, although not direct supervision or direction. Those matters will become significant when I go to the tables. He assessed her Activities of Daily Living Assessment (ADLs) as following: pain: zero; suffering: four; mobility: zero; social relationships: three; and recreation or leisure: three; which gave a total of 10.
13. In September 2017, the applicant attended upon  Dr Gregory White , consultant psychiatrist, and in the report of 2 October 2017, he stated the following:

The applicant appeared to be suffering a longstanding bipolar affective disorder characterised by episodic depression, low mood and other physical, psychological and social symptoms of depression, as well as hypomanic episodes characterised by typical symptoms such as elevated mood, grandiosity, reduced need for sleep and lack of insight. There appeared to be symptoms of longstanding social anxiety disorder and some obsessive compulsive personality traits.

14. He opined the applicant’s employment with the Department of Human Services had been a significantly contributing factor for the current psychiatric condition and there is likely to be ongoing permanent impairment.
15. The applicant saw Dr White again in June 2018, whereupon he noted the following:

Since the applicant’s last assessment, her condition appears to have stabilised with robust psychiatric treatment and appropriate self-management. The applicant holds very strong perceptions and reported post-traumatic embitterment regarding the workplace issues and there is very little likelihood of significant improvement in the applicant’s condition in the foreseeable future.

16. Dr White expressed the view there was the presence of abnormal reactions to the stress of daily living and distortions of thinking, but in the absence of any need for supervision and direction of activities of daily living, Dr White assessed the applicant’s level of impairment at 10 per cent. He also assessed her ADLs as follows: pain: zero; suffering: four; mobility: zero; social relationships: three; recreation and leisure: three; and other loss.
17. Based upon the reports I have referred to, the respondent appropriately accepts that the applicant suffers from an impairment which results from her accepted condition and it is also accepted the applicant has stabilised and there is no likelihood of improvement.
18. I now turn to the tables. The first matter I have to determine is the level of impairment due to the psychiatric condition and the relevant table appears at page 51 of Part 1 of Division 1 of the Assessment of the Degree of an Employee’s Permanent Impairment Resulting from Injury. The condition accepted – or level accepted is 10 per cent, which says:

Despite the presence of more than one of the following, employee is capable of performing activities daily living without supervision or assistance: reactions to stress of daily living with minor loss of personal and social efficiency; lack of conscious directing behaviour without harm to community or self; minor distortions of thinking.

19. I find the applicant clearly exhibits characteristics which make 10 per cent the minimum impairment. To go to the next level, 15 per cent, the following have to be satisfied:

Any one of the following accompanied by a need for some supervision and direction in activities of daily living: reactions to stress of daily living which cause modification to daily living patterns; marked disturbance in thinking; definite disturbance in behaviour.

20. I find it is quite clear there are reactions to the stress of daily living which cause modification to her daily living patterns and there are definite disturbances in behaviour, as evidenced by her lack of self-care, going for five days with no meals, except for a can of spaghetti, sometimes spending up to two weeks in bed. However, the qualifier is: “one of the following accompanied by a need for some supervision and direction”. That requirement has been modified by notes to table 5.1, which say:

Note 4. “Direction” means the provision of direction to the employee by a suitably qualified person responsible for the whole or in part for the care of the employee.

Note 5. “Suitable person” means a person capable of responsibly caring for the employee in an appropriate way and “suitably qualified person” means 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 psychologists.

21. During the hearing, I expressed some concern about the restrictions, especially in relation to note 6, but as I have already noted, pursuant to section 28 of the Act, I am bound to follow the notes and the tables. Accordingly, despite my view that the applicant is significantly impaired, I am restricted by the tables to finding the impairment to be no more than 10 per cent.
22. That then leads me to Part 1, Division 2, A Guide to the Assessment of Non-Economic Loss, Table 1 deals with pain and for the reasons dealt with in cross-examination and in evidence-in-chief, in relation to psychiatric injury, the score there becomes zero.
23. On suffering, there was a difference of opinion between the applicant, who wrote herself at five, Dr Rybak, who wrote herself at five and doctors Chambers and White, who wrote it at four. I note that four says:

Symptoms of mental distress of wide range tend to dominate thinking. Rarely free of symptoms of mental distress. ..... coping or performing activity. Treatment necessary either to control or relieve symptoms.

24. In my view, the evidence satisfied the score of four and I agree with the scores given by doctors Chambers and White and find the score for suffering to be four.
25. Regarding table B, 3.1, mobility, the applicant rated herself at three, but doctors Rybak, Chambers and White rated her zero and I also find the score for that is zero.
26. We then go to social relationships. The applicant and Dr Rybak rated it as five. Dr Chambers rated it at three, but conceded the level of effect could rate a four. Dr White rated it as a three, saying that he was bound by the tables and to get to four on the tables, social contacts are confined to immediate family. As much as I personally think that it is too restrictive and that if a person such as the applicant who has only one member outside her immediate family who she relates to, I would have thought the overall condition was more in line with four, except I am constrained to find four, because of the one person outside the family she relates to. Therefore, I find the score to be three.
27. The next table is recreation and leisure activities. Dr Rybak and the applicant rated it at five. Dr Chambers rated it at three. Dr White was three, but conceded it could be four. I note that three says:

Unable to continue the pre-injury level of activity with alternative activity possible.

28. Four is:

Range of pre-injury activities greatly reduced. Needs some assistance to participate in pre-injury recreation and/or leisure activities.

29. I find the range of pre-injury activities greatly reduced and she needs some assistance and/or encouragement to participate in pre-injury recreation and leisure activities. Therefore, I find a score of four for that matter.
30. Then other loss: The applicant rated herself at three, but all three doctors said zero and for the reasons advanced by the doctors, I also agree that itis zero.
31. So that gives a total score of 11, which, despite the respondent’s medical practitioners’ rating as 10 and the respondent saying that they consider the most appropriate rating score to be 10, I find it to be 11; which of course is the level already found by the delegate.
32. I should also note for completeness at this stage that in KTKY, the Tribunal found that a direction by a suitably qualified person such as a psychologist required more than the applicant attending on a psychologist for sessions for clinical assessment to amount to a direction. I also agree with Dr Chambers’ view that whilst the applicant’s psychiatrist, Dr Rybak, provides the applicant with support and encouragement in her ADL, she does not provide direct supervision to the applicant. In other words, the Guide is quite restrictive, especially since the amendment in edition 2.1, which talks about “suitably qualified”; which adds weight to the reasons I formerly expressed as to why, despite my concerns about the extent of the effect of the applicant’s accepted condition, I cannot rate her more than 10 per cent.
33. Accordingly, I affirm the decision under review.

[sgd]........................................................................
Associate

Dated: 7 February 2019