Case: O'Rourke and Comcare [1997] AATA 304
Outcome: considered
Mr Bryant has now appealed to this Court from the Tribunal's decision. Such an appeal lies only on a question of law: s 44 Administrative Appeals Tribunal Act 1975 (AAT Act). A number of what are said to be questions of law are specified in the notice of appeal, as follows: THE QUESTIONS OF LAW raised on appeal are: (a) Whether, in view of the finding that the accepted injury of muscle tension headaches was permanent, it was for the Applicant to call evidence to satisfy the Tribunal as to the level of impairment that there were not other causes that might influence the severity, frequency and/or level of impairment of the headaches? (b) Whether the decision of the Tribunal in finding that sleep apnoea and/or psychological factors could equally account for his headache symptoms was so manifestly unreasonable as to amount to an error of law? (c) Whether the Tribunal in taking account of psychological factors failed to consider that such factors were a sequelae of headaches and therefore compensable under Section 24 in light of the admissions and findings that had already made? (d) Whether in reviewing the determination under Section 24 and 27 the Tribunal should have considered psychological factors or sleep apnoea as causes of the Applicant's headaches in the absence of any expert to that effect? (e) Whether the Tribunal applied Table 13.1 correctly when considering what constituted minor interference with activities of daily living? (f) Whether the manner of assessment of headaches under Table 13.1 in O'Rourke v Comcare (1997) AATA 11720 was the correct test to be applied? (g) Whether, in assessing the level of impairment under Table 13.1, the Tribunal must be satisfied on medical evidence of the criteria in the Table or whether the Applicant's evidence alone, if accepted, would be sufficient? 6 Section 24 of the SRC Act makes provision for the payment of permanent impairment compensation. It provides: 24 Compensation for injuries resulting in permanent impairment (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 other than a hearing loss; 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. 7 The reference in s 24 to the "approved Guide" is a reference to the "Guide to the Assessment of the Degree of Permanent Impairment" approved pursuant to s 28 of the SRC Act . So far as material, that section provides: 28 Approved Guide (1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out: (a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined; (b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and (c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage. (2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide. (3) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister. (3A) ... (4) Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide. (5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%. (6) In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed. (7) ... (8) ... 15 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) 27 In regard to the construction and application of Table 13.1 in the Approved Guide, Mr Bryant's submission was that the Tribunal's reliance on an earlier Tribunal decision, O'Rourke v Comcare [1997] AATA 304 , led it to apply an incorrect construction of the term "minor interference". Mr Byrant's submissions proceeded as follows. The global approach to "minor interference" in O'Rourke v Comcare , is contrary to the approach the Court has taken to interpreting the Guide in Whittaker v Comcare [1998] FCA 1099 ; (1998) 86 FCR 532 and Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328. These cases are, it was submitted, supportive of the proposition that, where there is ambiguity in a phrase, as there is with "minor interference", then the Tribunal should take the approach most favourable to the employee. If the global approach in O'Rourke v Comcare has the effect of limiting or reading down the meaning of "minor interference" then it ought not be followed. If an "activity of daily living" (ADL) is interrupted, temporarily suspended or ceased altogether because of a headache that amounted, it was submitted, to an interference and whether it is minor or significant depended on the frequency, duration and severity of attacks. Where headaches amount to more than a de minimus interference with ADL, it was submitted that this would then constitute a "minor interference". It was submitted that Mr Bryant's medical history, as provided to Dr Lethlean, which history was assumed to be uncontroversial, would fall within the meaning of "minor interference" so construed and hence amounted to a 10% impairment under Table 13.1 of the Approved Guide. 30 The Commission further submitted that, even if O'Rourke v Comcare were the source of an incorrect test to apply to the term "minor interference", the Tribunal's reasons do not disclose that it applied such a narrow conception. In support of this, the Commission pointed to the Tribunal's reasons at [49] as showing that the Tribunal did consider whether there was a de minumus interference. The Commission submitted that, whilst the Tribunal was not satisfied on the evidence that the 10% impairment was met, this was not because the interference was considered too minor. The Commission finally submitted, in regard to the acceptance of Dr Lethlean's opinion over that of Dr Rowe, that this was a matter of the weight afforded to evidence and did not give rise to any errors of law. 56 In assessing what constituted a "minor interference" with the "activities of daily living" the Tribunal sought to follow an approach adopted in an earlier tribunal case, O'Rourke and Comcare [1997 ] AATA 304 (26 August 1997, Deputy President Burns). In that case, in a passage which was influential on the Tribunal as constituted for the purposes of the present proceeding, the Tribunal had observed: "The Tribunal's considered view is that when assessing whether the relevant attacks cause minor interference with activities of daily living, one must take a global approach. The circumstances of a given case may be such that one ADL is so affected, both biologically and psychosocially, as to fall to be described as "minor interference with activities of daily living". In another case however, where there is a low level of, say psychosocial, interference with several ADL, that could similarly fall to be described as "minor interference with activities of daily living". It is highly unlikely, when taking a global approach to this assessment, that a small infraction of one ADL could properly be described as "minor interference with activities of daily living"." 57 Regard to its definition in the Glossary in the Approved Guide discloses that "activities of daily living" is a collective term for a number of activities which an individual needs to perform to live. Its use saves the repeated specification, in those parts of the Approved Guide when reference to the same is directed, of each of the activities mentioned in the definition. 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.