Bennett and Comcare [2003] AATA 929 (19 September 2003)

Last Updated: 22 September 2003

DECISION AND REASONS FOR DECISION [2003] AATA 929

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/352

GENERAL ADMINISTRATIVE DIVISION

Re: ALAN JOHN BENNETT

Applicant

And: COMCARE

Respondent

DECISION

Tribunal: M.J. Carstairs, Member

Date: 19 September 2003

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member COMPENSATION - degree of permanent impairment - activities of daily living - whether applicant capable of performing activities of daily living - whether applicant entitled to further compensation

Safety, Rehabilitation and Compensation Act 1988 ss4, 24, 25(4), 28

Guide to the Assessment of the Degree of Permanent Impairment

Re O'Maley and Comcare (1997) 48 ALD 300

Re Purdon and Comcare (AAT 12429, 11 November 1997)

Re Mroz and Comcare (AAT 13344, 2 October 1998)

Re Griffiths and Comcare [2003] AATA 614

Comcare v Mihaljovic (2000) 97 FCR 304

Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees

v Emery (1993) 32 ALD 147

Re Taylor and Comcare [2000] AATA 988

Re Laven and Comcare [2003] AATA 821

REASONS FOR DECISION

19 September 2003 M.J. Carstairs, Member

1. This is an application by Alan John Bennett (the applicant) for review of a decision of the Military Compensation and Rehabilitation Service dated 1 March 2002. The decision affirmed a determination made on 26 September 2000 that denied liability to pay compensation to the applicant for permanent impairment for a depressive condition.

2. At the hearing of this matter on 8 May 2003 and 28 July 2003, Mr D. De Marchi, solicitor, represented the applicant and Ms A. McMahon of counsel, instructed by Dibbs Barker Gosling, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T30), together with exhibits marked A1-A3 for the applicant and R1 for the respondent. The applicant and respondent lodged statements of facts and contentions on 3 February 2003 and 18 February 2003 respectively.

BACKGROUND

4. The applicant was born on 10 August 1961. He is married with two children, aged seventeen and fifteen. The applicant served with the Australian Army (the army) from 25 June 1980 until he was discharged as medically unfit on 23 February 1985, after sustaining an injury to his right knee. After discharge the applicant underwent several knee operations. He then worked as a security guard from 1986 to 1990; and at Cadbury-Schweppes from 1990 to 1997 as a leading hand organising the packaging and palletising of goods. In 2000 he commenced studies leading to qualifications in librarianship, and now works 35 hours per week as a library technician.

5. The applicant claimed compensation on 30 October 1982 for the knee injury. In 1983 the respondent accepted liability for a torn medial meniscus, and later, in 1987, the determination was extended to include anterior cruciate laxity and lateral instability right knee. On 23 April 1998 the applicant's general practitioner certified that the applicant was suffering from depression. On 1 June 1998 the respondent accepted liability for major depression relating to the knee condition. On 16 December 1999 the applicant claimed compensation for permanent impairment in regard to the right knee and major depression. A decision was made on 6 April 2000 that the applicant had a 10% permanent whole person impairment of his right knee. No decision was made in regard to depression until 26 September 2000 (T20), after the applicant's then solicitor made a request for assessment. The applicant did not seek review of the decision rejecting the claim for permanent psychiatric impairment until 30 August 2001, after which the decision was made on 1 March 2002 to affirm the original decision, primarily on the basis that the applicant's depressive condition was temporary. The applicant sought review with this Tribunal on 10 April 2002.

EVIDENCE

6. The applicant told the Tribunal that he first noticed that he had problems with depression in 1997. He said he was frustrated and angry because of the continuing pain in his knee, his inability to support his family, and because he considered that his efforts to secure rehabilitation assistance for alternative employment were frustrated by the respondent. He said that he had attempted to take his life on more than one occasion. He said that there are still times when he considers his family would be better off without him. He said that he is assisted by sessions with a counsellor, Mr B Cripps, and by medication, Efexor, prescribed by his psychiatrist, Dr Sheehan. The applicant said that he noticed an improvement in his mood after Efexor was prescribed to replace other medication that produced side effects, and now Dr Sheehan has reduced the dosage of Efexor. The applicant also said that he sees Dr Sheehan less frequently than in the past.

7. The applicant told the Tribunal that he believed that his compensation claim had been handled badly by the respondent. He felt that until he commenced the two-year course in librarianship at TAFE in 2000, he was not assisted properly into employment more suited to his disability and this made him frustrated and angry. After completing his qualifications the applicant worked part-time in schools, averaging about twenty hours per week. His present position as a library technician fills a 6-month vacancy while the position's occupant is on long service leave. He  hopes to secure permanent full-time employment. He agreed under cross-examination that he feels better now that he is employed, and he agreed that his psychiatric condition does not stop him going out or working. He said that he has to exert self-control at work when he feels irritated by customers. However, he tries to walk away from such situations, and gets assistance by telephoning his counsellor if required. The applicant said that his condition has remained stable despite seeing his counsellor less frequently since he has been employed, and he said he was coping with everything.

8. The applicant said that he has memory problems, particularly with recent, rather than long-term, memory. He has difficulty remembering to take his medication, attending appointments, and collecting the children from school or work. He said his wife has to telephone him to remind him and he described himself as being reliant on his wife 110%.. The applicant said that his wife motivates him, and he is able to do tasks when motivated. He stated that he does not like to take medication as he feels that it is an acknowledgment that there is something wrong with him. He said that he limits the amount of pain medication and sleeping tablets that he takes as he tries to avoid medication if possible.

9. He said that his depression has affected his marriage and his relationship with his wife. His wife initiates their sexual activity, which is infrequent. The pain from his knee, problems with driving, and his inability to deal with stairs restrict his ability to participate in or attend sports with his children, though he is vice-president of the local junior football club. He has ceased his preferred sports of target shooting, volley ball and cycling due to the knee problem. He maintains a longstanding interest in military history.

10. The applicant said that he rarely goes out socially and prefers to be by himself. He is troubled by the presence of crowds. Prior to the onset of depression, he said that he used to go out regularly with friends.

11. Mrs M. Bennett, the applicant's wife, prepared a written statement dated 10 May 2003 (Exhibit A3) in which she said that her husband is reliant on her to help him with everyday tasks. She said that she has to make sure that he takes his medication, and she has to remind him to fill repeat prescriptions. She says he forgets medical appointments, forgets items when shopping, and forgets to pick up the children when asked.

12. In oral evidence, Mrs Bennett said that the early years of their nine-year marriage were happy, but in recent years the applicant has become withdrawn towards her and the children. She said that she observed a deterioration in her husband from about 1996. She said, however, that she has noticed certain improvements in his day-to-day functioning as a result of his return to work.

13. In regard to the assistance she gives, she said that she wakes her husband in the morning and lays out the clothes he is to wear that day. She prepares his breakfast and lunch and puts out his medication. As his mood and behaviour are adversely affected if he fails to take his medication, she observes him to ensure that he takes it. She said that at times he has pretended to take the medication, or put it in his pocket, and later forgotten to take it. She said that she considered her assistance to be supervising the taking of medication. She said that at times, if the applicant's knee is particularly painful, she will assist him over the step to the shower, but otherwise he does not need assistance with showering or other personal care. She acknowledged in cross-examination that when her husband is organised and in the car, there are no problems with him attending work, and she said that he seems happier now that he is working and supporting the family.

14. In a report dated 17 December 1999 (T15), Dr A. Webster, occupational physician, noted that the applicant had a number of knee operations in the period between 1982 and 1986 and further operations in 1991,1992,1993, 1996 and 1998, despite which, he continued to have problems. The knee was painful, gave way if he twisted it, and he was prevented from walking or driving for longer than half an hour. Dr Webster also noted that the applicant sought assistance with retraining for less physically demanding work. Dr Webster considered that the applicant's depressive condition was likely to improve with further treatment, particularly if he was assisted with retraining and secured employment.

15. In a written report dated 18 May 1998 (T11), Dr A. Sheehan, clinical psychiatrist, said that the applicant was referred by his general practitioner for treatment of depressive symptoms arising from the right knee injury. Dr Sheehan diagnosed severe major depression requiring intensive psychiatric treatment and counselling. He considered the applicant was likely to remain unfit for employment for at least twelve months. In a later report, dated 20 June 2001 (T23), Dr Sheehan stated that the applicant was likely to need treatment and support indefinitely and he considered he was 25% impaired under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide).

16. In a further report dated 1 August 2002 (Exhibit A2), Dr Sheehan said that he had seen the applicant in February 2002 when the applicant had told him that his mood was stable but that he was worried regarding his financial circumstances. The applicant said that he was complying with treatment. Dr Sheehan reduced the level of impairment he had earlier assigned to 20% under Table 5.1. In oral evidence he said that he did so because he considered the applicant had disturbances in thinking and behaviour, reflected in his reactions when stressed, including suicidal thoughts, and an incident of potentially threatening behaviour which the applicant had described. Dr Sheehan said that he understood the applicant's wife assisted with filling prescriptions and ensuring medication was taken.

17. Dr Sheehan said that in applying the Guide, a rating of 10% or 20% could be given but not 15%, as the wording at 15% referred to any one of the indicators. As the applicant demonstrated more than one of the indicators, Dr Sheehan considered he met the requirements of 20% in the Table.

18. Dr Sheehan said that he had seen the applicant only four times in the last eighteen months, and not since February 2003. He said that he had observed an improvement in the applicant over the time that he had treated him. However, he considered that the applicant would need anti-depressant medication indefinitely. Dr Sheehan considered the applicant's successful completion of his two-year course in librarianship was a positive sign and that his present record of employment indicated he was doing better than when he had last assessed him. He said he would not be able to give a current opinion without seeing the applicant again.

19. In a written report dated 28 April 2003 (Exhibit A1) Mr B Cripps, psychologist, stated that the applicant was referred to him for counselling by Dr Sheehan in about 1998. He said that he had seen him regularly since then, sometimes monthly, sometimes fortnightly, although he had not seen him since February 2003. Mr Cripps said that the applicant had suffered disappointment leading to profound depression after numerous surgical interventions had not relieved his physical discomfort. Mr Cripps commented that the applicant was resentful and bitter towards the military compensation system for a perceived lack of support. He said that the family had been suffering economic hardship until the applicant secured employment at the beginning of 2003.

20. Mr Cripps said that the applicant expressed self-destructive thoughts and had twice made attempts on his life. Mr Cripps considered that the applicant had a genuine long-term condition that left him unable to manage his own affairs. He confirmed, however, that he had seen improvement in the applicant since he has been employed. He said that the applicant appeared to be well-liked and coped well in the workplace.

21. Mr Cripps stated that the support of the applicant's wife was crucial and that the applicant could not manage his affairs without her. He said that he gained this impression from numerous consultations with the applicant and also a number of chance meetings with the applicant's wife in the waiting room. While he said that he regularly put references to the support given by the applicant's wife in his consultation notes, he could only point to one such reference in 1999, where he noted ...depends on wife for many things. Mr Cripps said that, without his wife, the applicant would not cope and would not get to work. He said that a couple of times per week, despite being woken by his wife, the applicant returned to bed.

22. Mr Cripps stated that he considered the applicant's major depression warranted a rating of 25% under Table 5.1, as he is unable to manage his affairs without supervision. He said that in assigning that rating he had concentrated on the difference between 20% and 25%. Under cross-examination, Mr Cripps said that he considered that activities of daily living included being able to organise one's daily affairs, being able to look after personal hygiene, being able to take medication, and being able to get to work.

23. Mr Cripps said that the applicant demonstrated the indicator at the level of 25% in Table 5.1 of the Guide, reactions to stressors of daily living causing modification of daily living patterns, by needing to be reminded to get out of bed and returning to bed if not pressed to do otherwise. He said also that his written comment barely able to cope at work addressed this indicator. In regard to what he saw as marked disturbances in thinking, another of the indicators in the Guide at the level of 25%, Mr Cripps said that the applicant satisfied this by his focussing on his pain, and by his intense pre-occupation with military history. He said that the applicant has self-destructive thoughts and becomes very emotional when aroused. Mr Cripps said that definite disturbances in behaviour were reflected in the applicant's resentment towards those who have not assisted him.

24. In a written report dated 25 February 2002 (T28), Dr N. Rose, consultant psychiatrist, stated that the applicant suffered from a major depressive disorder related to injury to his right knee. He said that he doubted that the impairment was permanent as he considered that, if the applicant was able to obtain regular employment, his depression would eventually resolve. In a second report, dated 17 January 2003 (Exhibit R1), Dr Rose said that he now thought that it was likely that the applicant's impairment was permanent, as there was no improvement despite the applicant working full-time.

25. Dr Rose said with respect to Table 5.1 of the Guide, that the applicant should be rated as 10% impaired as he reacts to stressors of daily living with minor loss of personal and social efficiency and experiences minor distortions of thinking. He said that the applicant does not need supervision and direction in activities of daily living.. In oral evidence Dr Rose said that the applicant was capable of study and employment, so was capable of carrying out the activities of daily living, and it was not necessary that he be woken up in order to go to work. In his written report (Exhibit R1), he said that he could find no abnormalities of perception, judgment or cognition. Under cross-examination, Dr Rose acknowledged that symptoms such as thoughts of suicide and other disturbances in thinking, inability to sleep, and inability to cope at home suggested a higher level of impairment than 10%. However he said that he did not consider that the applicant needed supervision in activities of daily living, therefore no higher rating than 10% could be assigned under the Guide.

CONSIDERATION OF THE ISSUES

26. In regard to permanent impairment the Safety Rehabilitation and Compensation Act 1988 (the Act) provides in s4 that an injury is permanent if it is likely to continue indefinitely and s24(2) provides :

...

(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.

27. Section 25(4) provides:

Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.

28. The relevant Table in the Guide for assessing psychiatric impairment is Table 5.1, which provides at the levels 10%, 15%, 20% and 25% as follows::

NOTE: Includes psychoses, neuroses, personality disorders and other diagnosable conditions. The assessment should be made on optimum medication at a stage where the condition is reasonably stable.

% DESCRIPTION OF LEVEL OF IMPAIRMENT

...

10 Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance.

* reactions to stressors of daily living with minor loss of personal or social efficiency

* lack of conscience directed behaviour without harm to community or self

* minor distortions of thinking

15 Any ONE of the following accompanied by a need for some supervision and direction in activities of daily living

* reactions to stressors of daily living which cause modification of daily living patterns

* marked disturbances in thinking

* definite disturbances in behaviour

20 Any TWO of the following accompanied by a need for some supervision and direction in activities of daily living

* reactions to stressors of daily living which cause modification of daily living patterns

* marked disturbances in thinking

* definite disturbances in behaviour

25 ALL of the following accompanied by a need for some supervision and direction in activities of daily living

* reactions to stressors of daily living which cause modification of daily living patterns

* marked disturbances in thinking

* definite disturbances in behaviour

29. The Glossary to the Guide (the Glossary) provides the following description of the term activities of daily living which appears in Table 5.1:

Activities of Daily Living Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:

Ability to receive and respond to incoming stimuli

Standing

Moving

Feeding (includes eating but not the preparation of food)

Control of bladder and bowel

Self care (bathing, dressing etc)

Sexual function

30. Mr De Marchi submitted that the term supervise in Table 5.1 should be given its plain meaning; that is to oversee, direct, aim, guide, or manage. He submitted that the use of the term some in the expression some supervision and direction in Table 5.1 was important. The Guide did not require complete supervision and direction. Mr De Marchi said that the applicant's evidence showed that he needed some supervision and direction in self-care and in relation to sexual functions. He submitted that the Tribunal decision in Re O'Maley and Comcare (1997) 48 ALD 300 was authority for the point that there was no requirement that all the activities of daily living be affected.

31. Mr De Marchi submitted that Dr Rose acknowledged that he would have given the applicant a higher rating than 10% under Table 5.1 except for the constraints provided by the definition of activities of daily living in the Glossary. However, Mr De Marchi submitted that Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147 does not support the restricted view that Dr Rose adopted in forming his opinion.

32. Mr De Marchi submitted that all psychiatrists agreed that the applicant suffered marked disturbances in thinking and definite disturbances in behaviour, which pointed to the levels of 20% or 25%, rather than the rating of 10% assigned by Dr Rose. He said that the Tribunal decision in Re Wayne Taylor and Comcare [2000] AATA 988 allowed the Tribunal to choose the level within a Table that favoured an applicant. He said the Tribunal should prefer the evidence of Mr Cripps, rating the applicant at 25%, as Mr Cripps was in the best position to know, having had the greatest contact with the applicant.

33. Ms McMahon agreed that the Federal Court decision in Emery was authority for the proposition that the activities of daily living referred to in the Glossary were not limited to the mechanics of the named functions. However Ms McMahon submitted that the evidence did not support the applicant requiring supervision in these activities. Ms McMahon also submitted that while Mr Cripps said that the applicant required the support of his wife in activities of daily living his evidence did not demonstrate that he had an understanding of meaning of the Glossary definition of activities of daily living or of assessment under the Guide.

34. Ms McMahon submitted that Mr Cripp's evidence was unreliable as his clinical notes did not support his evidence that the applicant returned to bed several times a week after being woken by his wife and that he had spoken with the applicant's wife about the support given to her husband. She said that neither the applicant's nor his wife's evidence supported these assertions.

35. Ms McMahon submitted that there were subtle differences in the requirements at the different percentage levels within Table 5.1 and it was not enough that a person satisfy one, two or three of the listed criteria at the different levels of the Table. She submitted that the Guide required, for ratings above 10%, that both supervision and direction in activities of daily living be shown. She said that Re Taylor dealt with applying different Tables for one condition and did not apply to different levels of impairment within a single Table.

36. Ms McMahon also referred the Tribunal to Re O'Maley, in which the Tribunal said that direction or supervision in regard to driving or shopping was not covered by the Glossary; and needing urging to get up in the morning, where the person otherwise was able to bathe and dress, was not what was meant by self-care (bathing and dressing etc). She said that taking medication was not covered by the definition of activities of daily living. She submitted that, even if taking medication came within the activities, it could not be said that putting out the applicant's medication amounted to both supervision and direction as required at levels above 10% in Table 5.1. She also referred the Tribunal to Re Mroz and Comcare (AAT 13344, 2 October 1998) and Re Griffiths and Comcare [2003] AATA 614.

37. Ms McMahon submitted that as the applicant has been paid a lump sum for 10% permanent impairment of his knee, s25(4) of the Act does not permit further payment unless the increase attributable to the psychological sequelae is more than 10%, because the Guide requires the two impairments be combined under the Combined Values Chart in Table 14.1.

38. The Tribunal reached its decision taking into account the oral and written evidence and the submissions at the hearing. It was not disputed that the applicant has a knee injury arising out of his military service in 1982 and has a major depressive disorder, a diagnosis upon which all medical practitioners agreed. The Tribunal accepts the evidence of Dr Rose and Dr Sheehan that the applicant's depressive condition is long term, has stabilised, and that he will continue to require medication. The Tribunal is satisfied that the condition is permanent within the meaning of s24(2) of the Act.

39. The applicant and his wife gave evidence in an honest and forthright way. Neither of them exaggerated the effects of the applicant's psychiatric condition or the nature of the tasks that the applicant's wife undertakes to assist him. The Tribunal takes account of the fact that the applicant has achieved qualifications in librarianship and is now employed. The Tribunal notes that the applicant has reduced the frequency of his attendances at both his psychiatrist and the psychologist since he has been working longer hours in 2003. The evidence of Dr Sheehan and Mr Cripps was that the applicant had been very concerned about his need to retrain and was angry about lack of support for rehabilitation. On the evidence of both Mr Cripps and Dr Sheehan, lack of employment and its impact on the his ability to support his family weighed heavily on the applicant. However, due to the applicant's efforts and with the support of his medical advisers the applicant has turned this situation around. The evidence of Mr Cripps, Dr Sheehan, and the applicant was that the employment has resulted in improvements in his condition.

40. Taken as a whole, the evidence supports a conclusion that the applicant has improved in the period since treatment by Dr Sheehan commenced and, more particularly, as a result of successfully obtaining his librarianship qualifications in 2002. The Guide at Table 5.1 directs that assessment should be made on optimum medication at a stage when the condition is reasonably stable.. The Tribunal takes into account that Dr Sheehan reduced the rate that he assigned to the applicant's psychiatric condition from 25% in June 2001 to 20% in August 2002. The applicant's evidence was that he enjoys his work and is successful at it. This does not detract from the fact that the applicant's psychiatric condition is permanent. However, in Comcare v Mihaljovic (2000) 97 FCR 304, the Federal Court said (at paragraph 29):

That it may previously have been assessed as a permanent impairment in no way precludes its later being found not to continue to be so when a new assessment is undertaken of the person. Medical prophesy is by no means infallible. If a change occurs and a later assessment of whole person impairment is invited, changed circumstances can - and must properly - be taken into account at that later time.

41. On the question of assessment of the applicant's permanent impairment, Table 5.1 of the Guide at all levels from 5% up to and including 25% requires that the decision-maker address whether the claimant can perform unassisted the activities of daily living defined in the Glossary or requires some supervision and direction for these activities. At the levels of 5% and 10% the Guide requires the decision-maker to address whether a person is capable of performing activities of daily living. To be capable of doing something requires that a person be able to do it, in other words that it is within the person's powers and capacities. To be assigned a rating above 10% under Table 5.1, the applicant must show that there is a need for supervision and direction in activities of daily living.

42. In assigning a rating at these levels under Table 5.1, the decision-maker must then address the questions of how a person reacts to stressors of daily living and how thinking and behaviour are affected. The term stressors of daily living, unlike the term activities of daily living, is not defined in either the Act or the Guide. It is a term that covers potentially a wider range of matters than those matters to be addressed under activities of daily living and could include, without being limited to, how a person reacts to stress from interactions at home, socially, in the workplace, or arising from coping with disability.

43. The Tribunal does not accept Mr Cripps' assessment under Table 5.1 of the Guide that the applicant needs supervision and direction in activities of daily living.. Mr Cripps had limited understanding of the operation of the Guide and appeared to confuse the concepts of stressors of daily living and activities of daily living. The Tribunal prefers the evidence of Dr Rose and Dr Sheehan on matters of applying the Guide. Mr Cripps is not a medical practitioner and, as the Tribunal said in Re Purdon and Comcare (AAT 12429, 11 November 1997) where opinions differ between psychologist and those who have medical training in psychiatry, the views of the medical practitioner should be preferred.

44. The Tribunal is satisfied, on the basis of the applicant's evidence about his study achievements and his performance in the workplace, that he is capable of undertaking all the activities of daily living without supervision or assistance. Even on the matters where his wife does assist him, such as putting out his clothes, reminding him to get up and shower and take his medication, the Tribunal finds that undertaking these tasks is a matter of choice on the part of both the applicant and his wife, and the applicant does not need supervision and direction in them, as is required to satisfy an assessment at a percentage higher than 10%.

45. The Tribunal agrees with the respondent's submission that certain of the tasks did not fall within the term activities of daily living and agrees with the decision in Re Taylor that tasks such as shopping or being called to get out of bed or needing reminding to collect the children do not come within the definition of activities of daily living.. The evidence does not support the contention that the applicant needs supervision and direction with sexual function so as to warrant a rate higher than 10%. As to the assistance with medication, the Tribunal finds that the support given by the applicant's wife does not amount to supervision and direction and the Tribunal finds that the applicant is capable of performing this task unassisted. On his evidence he tries to avoid taking medication if possible, and sometimes chooses not to take it, but he is generally compliant and the Tribunal is not satisfied that the assistance that is given by his is needed, as is required for levels above 10% in Table 5.1.

46. The Tribunal accepts the evidence of Dr Sheehan and Dr Rose that the applicant's suicidal thoughts and his unpredictable reactions have meant that at times he has met the descriptions ... marked disturbances in thinking and ...definite disturbances in behaviour which are descriptions which appear in the Tables at the levels 15%, 20% and 25%. However, Table 5.1 requires that all elements be satisfied. The Tribunal accepts the respondent's submission that the phrase supervision and direction is conjunctive and both must be present. In the absence of the need for some supervision and direction in activities of daily living the Tribunal is satisfied that no rating above 10% may be assigned.

47. Taking into account the applicant's evidence that he is able to function well at work, is more settled after securing employment, and is able to exercise self control when stressed, the Tribunal finds that the applicant exhibits ... minor disturbances in thinking. Taking into account the applicant's evidence that he is socially withdrawn, has difficulty carrying out tasks such as shopping and taking responsibility for children, he satisfies the factor of reacting to stressors of daily living with minor loss of personal or social efficiency. Accordingly, the Tribunal decides that the level of permanent impairment is 10% under Table 5.1.

48. In regard to whether s25(4) of the Act is a bar to further payment under s24 and s27 of the Act, the Federal Court in Mihaljovic said that the emphasis in the Guide is on the percentage of whole person impairment, while s28(1) of the Act refers to the degree of permanent impairment of an employee. The Court stated that, where there are multiple impairments arising from the loss, the loss of the use, or the damage or malfunction of different parts of the body, bodily system or function, the first step is to calculate the percentage degree of impairment of each loss, damage or malfunction. The second step is to determine the combined percentage of whole person impairment pursuant to Table 14.1 to determine in turn the compensation payable to the employee under s 24 of the Act.

49. The Court said in Mihaljovic:

[30] Likewise when that later assessment is made, it involves the making of medical appraisals under the guide at that time. Provided the percentage values are ascertained using what then are reasonable and appropriate tables for assessing the particular impairments in question as a matter of judgment, it is irrelevant in my view that for the purposes of a prior determination different tables were used in making the individual assessments of particular impairments then experienced by the person in question.

[31] In each instance the determination to be made is the same - the percentage degree of permanent impairment of the employee. The comparison is not of the percentage degrees of the individual impairments where there are multiple impairments. That at different times different tables might reasonably be considered more appropriate to be employed in leading to that determination in no way falsifies or otherwise vitiates the comparison to be made. It merely suggests that at a particular time one rather than another table may be able properly to be involved in aid of the determination to be made.

50. As the Tribunal said in Re Laven and Comcare [2003] AATA 821, the reasonable and appropriate Table to assess the applicant's impairment is Table 14.1. In Re Laven the Tribunal referred to the reference to double assessment in the Introduction to the Guide:

...

Where an employee suffers from more than one impairment the values are not added but are combined using the Combined Values Table. The purpose of this table is to give the total effect of all impairments, according to a formula, as a percentage value of the employee's whole bodily system or function (see Table 14).

51. Applying Table 14.1, the Tribunal decides that the applicant has a whole person impairment of 19%, reached by combining the 10% impairment of the right knee and the 10% impairment for the depressive condition. Section 25(4) of the Act provides that where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more. As the increase in the combined degree of permanent impairment is less than 10%, s25(4) does not permit further payment for permanent impairment.

DECISION

52. The Tribunal affirms the decision under review.

I certify that the fifty-two [52] preceding paragraphs are a true copy of the reasons for the decision of:

M.J. Carstairs, Member

(sgd) Catherine Thomas

Clerk

Dates of hearing: 8 May 2003

28 July 2003

Date of decision: 19 September 2003

Solicitor for applicant: Mr D. De Marchi, De Marchi & Associates

Counsel for respondent: Ms A. McMahon

Solicitor for respondent: Dibbs Barker Gosling