Case: Comcare v Emery [1993] FCA 601 ; (1993) 32 ALD 147
Outcome: considered
For like reasons, albeit at the cost of an elongation of these reasons, it is necessary to set out certain passages from the Tribunal's reasons under each of these headings: "1. The cause and relationship to service of the applicant's headaches 37. There are conflicting medical opinions on the cause of the applicant's headaches, either that they are derived from his service related rugby neck injury, or that they are due to tension headaches. ... 39. Neurologists Dr Beran (Exhibit 3 folio 157) and Dr Lethlean (Exhibit 1 folio 70) both diagnosed tension headaches. 40. The Tribunal finds that the evidence for a cervical spinal cause for the applicant's headaches is inconclusive. On balance it favours the diagnosis of tension headaches made by both Neurologists. 41. However, further to this, the Tribunal finds that the diagnosis of the nature of the headache is incidental. Both Dr Rowe (Exhibit 1 folio 42) and Dr Lethlean ( ibid folio 71), the only doctors asked if the applicant's headaches are due to his Navy service, have determined that they are. 2. Whether the applicant's headache condition is permanent 42. Both Dr Rowe (Exhibit 1 folio 42) and Dr Lethlean ( ibid folio 83) have concluded that the applicant's headache condition is permanent. The other medical witnesses have provided no opinion. 3. The applicant's whole person impairment from his headache condition 43. Again there is conflicting medical opinion on this. Dr Rowe has assessed that the applicant suffers 10% whole person impairment from his headache condition, whereas Dr Lethlean assessed this at 0%. 44. Based on the reports by the various medical specialists together with the oral evidence provided, results in our placing greater weight on the evidence of Dr Lethlean in preference to the evidence of Dr Rowe. While both these specialists have provided more recent reports, Dr Rowe conceded that his opinion is based essentially on the applicant's statements. However, of greater importance and weight was the fact that Dr Lethlean, while agreeing with Mr King-Scott (Counsel for the applicant) that it is possible to regard the factual evidence as affecting the activities of daily living of the applicant, he did not resile from his opinion that the applicant has a 0% whole person impairment and did so on the basis of the principle that such an assessment should only be altered following a re-assessment. A re-assessment had not occurred between the date of his latest report on 3 November 2006 where he observed some significant differences in the symptoms described by the applicant in his statement of 14 June 2006, in comparison to his examination of the applicant some 8 months earlier on 31 October 2005. o In addition, his reasoning was quite analytical. He emphasised if a clinical re-assessment was to occur, that a psychiatric assessment should also be included, as he formed the view that Mr Bryant's symptoms were multi-factorial. He further stated that sleep apnoea could also account for the present level of impairment and if that was found to be so, then it would not be compensable under Table 13.1. If sleep apnoea was a major cause of the applicant's headaches, then, not only would it be non-compensable under Table 13.1, but it would explain the condition as being not stabilised and that there may be potential for a reduction in the level of headaches by further medical treatment. We therefore regarded Dr Lethlean's report as providing greater cogency or weight of evidence. ... 47. In relation to the above conditions, it is essentially a contest as to whether or not the applicant satisfies the 10% whole person impairment criteria. If he does not, then the 0% whole person impairment criteria is more appropriate. In relation to the 10% criteria, the applicant has described to Dr Rowe and in his other evidence, that he has attacks which occur 12 times or more per year. Of importance is whether they cause "minor interference with activities of daily living" or are readily reversed by medication. In relation to the evidence provided to Dr Lethlean, the frequency of headaches seems to have reduced from 1994 to October 2005 when the applicant was examined by Dr Lethlean. But the activities described do not require any particular functions of daily living to be satisfied although "due weight must be given to the psychosocial aspect of the function i.e. the ability to stand may be impaired because one cannot stand straight, or stand still or stand around or even stand by without some supervision or direction": Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery [1993] FCA 601 ; (1993) 32 ALD 147 at 151). 48. That principle must be read in the context that all the attacks must be considered in making the assessment of frequency, not merely those of relevant severity ( McKenna v Repatriation Commission (1995) 39 ALD 254). Of direct relevance is the case of Re O'Rourke and Comcare (AAT 12152, 26 August 1997) which was a case involving an assessment of severe headaches on the activities of daily living as required by Table 13.1. The decision in that case noted that the 10% level of impairment requires "minor interferences with activities of daily living". Activities of daily living refers to primary biological and psychosocial functions. "Minor interference" it was said must be greater than "no" interference but less than "most" interference. The Tribunal there held that a global view or assessment is more appropriate; that on some occasions, one activity of daily living may be so affected in both biological and psychosocial terms as to constitute a minor interference with activities of daily living, whereas in another case there could be multiple activities of daily living which are affected at such a low level but which could still be described as constituting a "minor interference" with activities of daily living. It was said however, '[i]t is highly unlikely, when taking a global approach to this assessment, that a small infraction of one [activity of daily living] could properly be described as "minor interference with activities of daily living'. 49. In assessing the evidence presented against these criteria and their interpretations as outlined above, we have also kept in mind the underlying principles which inform Table 13.1. In O'Rourke's case it was found that the frequency of headaches suffered by the applicant there was approximately 25 per year (greater than the standard in the criteria of 12 or more) and that the duration of the headaches involved several hours and the severity at the upper level. However, the Tribunal there found that the level of impairment under Table 13.1 was 0% as the attacks did not interfere with activities of daily living as defined in the glossary of the Guide. In the present case, the applicant has to rest or stretch and sometimes even double checks his work. These responses to stimuli could be regarded as being on the one hand, part of the ordinary incidence of life which results from tiredness, stress in the workplace or other influencing factors. There is the possibility however, that those activities of daily living may be experiencing a "minor interference" as defined. However, we have concluded on the balance of probabilities that the likelihood of the latter conclusion is far outweighed by the factors raised by Dr Lethlean that sleep apnoea, for example, could equally account for the symptoms described. On that basis, the headaches reported could not then be attributable to service life and therefore be compensable under Table 13.1. That is not to detract from the acceptance of liability for the original injury or even that headaches may be related to the original injury. However, the doubt raised by Dr Lethlean that some psychological factors may be involved lends credence to the requirement for clinical re-assessment including psychiatric assessment. The time lapse between Dr Lethlean's original and more recent reports, his observation of apparent inconsistencies as specified in his latest report should not be viewed lightly and his suggestion of a clinical re-assessment would accord with the best evidence rule in order to make the correct or preferable decision. 50. Having considered all of the evidence, we are satisfied that the applicant does not suffer a 10% whole person impairment which can be attributable to service life , in terms of s 24 of the Act. An amount of compensation is therefore not payable under that provision. (Emphasis added) 58 Though the term is a collective one it does not, with respect, follow that the "global approach" is thereby mandated. Indeed, in its reference to one ADL being so affected as to fall to be described as "minor interference" the Tribunal itself in O'Rourke seems to counsel against the adoption of such an approach in such a case. Be that as it may, the correct way to approach assessment in respect of those parts of the Approved Guide which make reference to the collective term "activities of daily living" is that stated by Spender J in Comcare v Emery [1993] FCA 601 ; (1993) 32 ALD 147 , at 151: "The Tribunal referred to the use of "Activities of Daily Living" in other Tables of the Guide, and said that certain conclusions could be reached. The Tribunal said: 'The first is that to find 'some supervision and direction in ADL was needed' there is no requirement that all, or most, or any one of the particular functions listed in the glossary definition have been adversely affected. Another conclusion is that the term ADL is not limited to the basic mechanics of an activity but due weight must be given to the psychosocial aspect of the function ie the ability to stand may be impaired because one cannot stand straight, or stand still or stand around on even standby without some supervision or direction.' It seems to me that no criticism can be taken of the correctness of this passage, save for the ambiguity in the reference to "any one of the particular functions listed in the glossary definition". If that reference was meant to read "any particular one" was necessary to have been adversely affected, no complaint could be made." 59 These observations were made in relation to the construction of the collective term "activities of daily living" in the context of Table 5.1 of the Approved Guide, which referred to a "need for supervision and direction in activities of daily living" They apply mutatis mutandis to the construction of that collective term in Table 13.1. Thus there is no requirement that there be "minor interference" with all, or most or any particular one of the activities listed in the definition of that collective term before a finding of "minor interference" may be made. To the extent that the "global approach" counselled in O'Rourke suggests otherwise, and that seems to be how the Tribunal in the present case understood it, it is inconsistent with the decision of this Court in Emery and should not be followed by the Tribunal.