AA v AB Pty Limited
[2010] NSWWCCPD 34
•31 March 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | AA v AB Pty Limited [2010] NSWWCCPD 34 | ||||
| APPELLANT: | AA | ||||
| RESPONDENT: | AB Pty Limited | ||||
| INSURER: | GIO General Limited | ||||
| FILE NUMBER: | A1-4830/09 | ||||
| ARBITRATOR: | Mr J McDermott | ||||
| DATE OF ARBITRATOR’S DECISION: | 1 October 2009 | ||||
| DATE OF APPEAL DECISION: | 31 March 2010 | ||||
| SUBJECT MATTER OF DECISION: | Psychological injury; weight of evidence | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Self-represented | |||
| Respondent: | Moray & Agnew | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 1 October 2009 is confirmed. | ||||
| Each party is to pay his or its own costs of the appeal. | |||||
BACKGROUND
The appellant worker, Mr AA, is a qualified chef. He started work at a resort and spa owned by the respondent employer, AB Pty Limited (‘AB’), as the chef de partie in March 2007.
From the beginning, he had several issues with his duties and his co-workers. In particular, two incidents occurred with a co-worker named Rufus. The first was in October 2007 and the second was in January 2008. On each occasion, Rufus spoke in offensive and provocative language, and brandished a knife. After the second knife incident, Mr AA saw his general practitioner, who certified him unfit for work because of a generalised anxiety disorder related to workplace issues.
Mr AA was certified fit to return to his normal duties on 19 March 2008. He resumed his normal duties and continued until he resigned on 27 June 2008. The exact reason for his resignation is unclear and is dealt with in detail below.
Mr AA moved to Queensland, where he worked in a restaurant for one month in either August or September 2008. He then remained unemployed until he found alternative employment in May 2009.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 22 June 2009, Mr AA alleged that he suffered “depression/and anxiety and adjustment disorder” and gave the date of injury as “March 2007 to March 2008”. The Application gave no description of how the injury allegedly occurred but merely stated, “See statement of applicant attached”. Such pleadings are unacceptable in the Commission. An Application to Resolve a Dispute must properly identify how the alleged injury occurred. Pleadings that merely refer to an attached statement will not be accepted in the future.
The Application initially claimed weekly compensation from 1 June 2008 to date and continuing, but was amended at the arbitration to claim $853.72 from 27 June 2008 until 8 May 2009. It also claimed medical expenses in the sum of $104.00 plus a general order.
The Commission listed the matter for conciliation and arbitration on 21 September 2009. Though the respondent’s Reply purported to rely on 11 issues, the only issue identified as being in dispute at the arbitration was incapacity after 27 June 2008 (T2.10). The matter proceeded with lengthy submissions, but no oral evidence.
In a reserved decision delivered on 1 October 2009, the Arbitrator found that Mr AA was fit for his pre-injury duties from 19 March 2008 and that he was therefore not entitled to the compensation claimed. He made an award for the respondent with no order as to costs.
In an appeal filed on 28 October 2009, Mr AA sought leave to appeal the Arbitrator’s determination on the ground that the Arbitrator failed to take into account relevant evidence as to the continuing effects of his injury and that the Arbitrator placed too much weight on the medical evidence that pre-dated the period of incapacity.
Neither party has challenged the Arbitrator’s findings that Mr AA suffered a psychological injury or that his employment was a substantial contributing factor to that injury.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary threshold in section 352(2) of the 1998 Act is satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
PRELIMINARY MATTER
Though the cover page of this appeal describes Mr AA as being self-represented, Walker Legal, solicitors, acted for him at the arbitration and lodged the appeal on his behalf on 28 October 2009. However, on 13 November 2009, Walker Legal advised the Commission in writing that it had ceased to act on behalf of Mr AA in these proceedings and that future correspondence should be directed to him.
The Commission forwarded the following documents to Mr AA on 17 November 2009:
· Sealed copies of Application – Appeal Against Decision of Arbitrator incorporating Registrar’s Direction.
· Form 4 – Certificate of Service.
· Workers Compensation Commission – Practice Direction No 6.
· Amended Registrar’s Direction dated 17 November 2009.
The Amended Registrar’s Direction of 17 November 2009 set a timetable for the service of the appeal and for any submission in opposition and any submissions in response by the appellant. In compliance with this Direction, Mr AA filed a Certificate of Service on 7 December 2009.
Time for service of the Notice of Opposition was extended until 17 February 2010 by a Further Amended Registrar’s Direction issued on 10 February 2010. On 10 February 2010, Moray & Agnew filed a Certificate of Service certifying to service of the Notice of Opposition on Mr AA on that day.
Mr AA informed the Commission on 5 March 2010 that he had not received the Notice of Opposition. The Commission forwarded the Notice of Opposition to his email and postal address on that day and extended time for him to respond to 4.30pm Friday 19 March 2010. As at 31 March 2010, the Commission had not received any response from Mr AA.
THE EVIDENCE
Mr AA’s evidence is set out in his statements of 24 November 2008 and 21 September 2009. Mr AA was born overseas in 1979 and qualified as a chef in 1997. He worked as a chef overseas between 1997 and 2002 and then in various locations until he came to Australia in 2007 and started work for AB.
He did not like his job from the beginning. He was asked to do menial tasks, probably, he thought, because he was a foreigner. He did not like the offensive language used by his co-workers or their derogatory sexual references. He had a particular problem with a co-worker named Rufus who made negative comments to him, such as saying that he was a “shit”. Often, Rufus would not speak to the worker for days on end and then suddenly accuse the worker of doing his job badly.
In October 2007, Rufus shouted at the worker “you are shit. You don’t do your job”. A verbal altercation developed with Rufus standing about a foot away from Mr AA staring at him in an intimidating way while holding a knife. Rufus said several times “come… show me you are a man”. Eventually, Rufus put the knife down and Mr AA reported the incident to the restaurant manager.
At about this time, Mr AA felt that he was being overworked. Management said that it was not possible for all workers to have two consecutive days’ leave. Mr AA therefore volunteered to forego two consecutive days of leave.
On other occasions, co-workers made offensive comments about Mr AA’s appearance when he was at the beach, suggesting that he looked like a girl and that he had a small penis.
Mr AA had to work very hard and without breaks because, when he was away, the other chefs did not do their job, which meant he had to do extra tasks in order to catch up. He told his manager that he was very tired and that he wanted to go back to the old system of having two consecutive days’ leave.
At the end of January 2008, Rufus said to the worker “you don’t do your job, you’re shit!” Mr AA requested that he be left alone and he walked into the cold room. Rufus came after him and grabbed his jacket. Mr AA then pushed Rufus, who fell back onto a table and grabbed a knife. He pointed the knife at Mr AA and walked towards him until someone grabbed him by the hand and another person stepped between the two men to keep them apart. Mr AA left and reported the incident to security. As he was leaving, Rufus shouted at him to wait for him because he wanted to finish it after work. The next day, Mr AA reported the incident to a person at Human Resources.
Mr AA states that nobody else in the kitchen on the evening of the scuffle admitted to seeing Rufus with a knife in his hand. In his opinion, as Rufus was Nepalese and other kitchen staff were also Nepalese, they were colluding to deny that the incident occurred. According to Mr AA, Rufus was given a “final written warning”. That warning is not in evidence.
At this stage, Mr AA started work in a different restaurant, but still for AB. He was unable to sleep, as he was so traumatised by the event with Rufus and the way management dealt with the matter. On 1 February 2008, he saw his general practitioner, Dr Ballantyne, who certified him unfit for work from 4 February until 19 March 2008. He was paid workers compensation during this period. On his return to work at AB, he was very depressed and took antidepressant medication. He lost motivation and drive for the job and, after three months, he resigned. He felt he could not work at AB anymore because it was making him feel too depressed.
Mr AA then moved to Queensland where his girlfriend lived. He suffered from strong side effects from his medication and his sex drive died completely. He started work at a restaurant in Queensland in August or September 2008, where he worked for about one month and then had to leave. He could not focus on the job and he felt he could not handle it. He was still feeling depressed. Whilst in Queensland, he came under the care of Dr Bleier, general practitioner, because of depression.
Mr AA also relies on a supplementary statement signed by him on 21 September 2009. He stated that he separated from his wife six months earlier and that she gave birth to a son on 11 May 2009. About three months earlier (June 2009), he obtained work at a restaurant in Queensland. Since commencing that work, he has suffered from severe depression and stress and he recently obtained a certificate from Dr Bleier advising that he was not fit to work due to stress.
Medical Evidence
Dr Ballantyne’s clinical notes record that he saw the worker on 1 February 2008 for sinusitis. In addition, his notes on that date record:
“Also, was attacked with a knife at work 11 days ago. Is having recurrent nightmares and anxiety.”
Dr Ballantyne issued a WorkCover medical certificate on 4 February 2008 in which he recorded that there had been some tension between the worker and another staff member that escalated into a physical confrontation resulting in the staff member threatening the worker with a knife. The worker stated that he had also been threatened six to eight months previously. Mr AA exhibited signs and symptoms of acute anxiety and Dr Ballantyne diagnosed “generalise[d] anxiety disorder repated [sic, related] to workplace issues”. In the doctor’s opinion, Mr AA’s employment was a substantial contributing factor to the injury.
The doctor expressly noted that the worker had had no previous mental health issues and he could not find any other background cause or pre-disposition that may have caused his symptoms. Dr Ballantyne added:
“Management Plan: 1. [Mr AA] continues to be significantly affected by this incident, with pervasive anxiety, poor appetite and poor sleep. He feels well supported by HR at work. 2. I have had a long counselling session with [Mr AA] today to discuss past issues that may have pre-disposed [him] to his reactions. Certainly, he has mentioned that he felt that some of the workplace conversation leading up to the incident was a problem for him. Specifically, he mentioned that he found that there was pervasive discussion about sex and sexuality, with [the] implication that he was homosexual. 3. I have arranged for [Mr AA] to see Newpsych. they [sic] will contact him today, and [he] will see a clinical psychologist either today or tomorrow. 4. I have discussed medication with [Mr AA]. He will start on medication today. These usually take several weeks to have good clinical effect. 5. I will see [Mr AA] next week to review side effects and check his counselling sessions.”
Mr AA saw Dr Ballantyne again on 11 February 2008 when the doctor noted, “persisting anxiety related to work environment”. He prescribed sertraline (Zoloft).
The referral to Newpsych is also dated 11 February 2008. It identified the reason for referral as “anxiety” and “post traumatic stress disorder” and referred to the knife incident and that the worker had been anxious and fearful for his life and unable to return to work.
Dr Ballantyne reported to AB on 14 February 2008 that he was convinced that an incident occurred that involved a perceived threat with a large knife. He felt that the presence of the co-worker in the workplace (presumably Rufus) would be a significant barrier to a return to work. Dr Ballantyne added:
“Other barriers which I would normally look for include the feeling of whether he is supported in the workplace, and the patient’s general personal motivation to return. On these fronts, [Mr AA] has specifically said that he has felt supported at work, and is happy with the treatment he has received. This is often a significant barrier, but I feel confident in saying that [AB] has maintained his trust and goodwill between the parties. He has always maintained that he wants to return to work. To this extent, I feel hopeful that we will be able to effect an early return to work, with minimal ongoing problems.
I will see [Mr AA] early next week and discuss how he feels about returning to work. I would like to see his background anxiety settled first, which will hopefully happen quickly, and would aim to encourage [a] return on a short shift or short week initially with [a] return to normal duties if he tolerates that.”
Dr Ballantyne noted that the worker said he felt very much better when he saw him on 18 February 2008. He had started on sertraline and had no side effects. The worker indicated that he had previously used St John’s Wort and other medications for “poor mood”. The doctor added:
“It is most likely that he has had borderline depression leading up to this inceident [sic].”
Dr Ballantyne saw Mr AA on 25 February 2008 and recorded that he was “now much more settled” and was sleeping well. The doctor issued a certificate stating:
“Management Plan: 1. [Mr AA] is feeling much improved and is now sleeping better and has overall improvement in his mindset. He is due to return to the kitchen from today which he is happy about. As outlined previously, the aim would be for this week to return to three shifts this week for four hours, and then four full days next week and a goal of normal duties after that. I will check him again on Monday to review his progress. Please contact me if there are any concerns.”
At the request of GIO, Dr Vickery, consultant psychiatrist, examined Mr AA on 27 February 2008. In his report of 28 February 2008, Dr Vickery recorded that the worker had been prescribed sertraline, which he reported was particularly beneficial for his disturbed sleep pattern and for the bouts of anxiety he initially experienced after the incident. The incident Dr Vickery referred to occurred on 18 January 2008 when another chef threatened the worker with a knife. The same chef had also threatened the worker with a knife some eight months earlier. Staff who witnessed the incident gave conflicting accounts of what happened. Mr AA was disillusioned with co-workers for not supporting him when people from Human Resources questioned them.
Dr Vickery also took a history that co-workers had made comments about his genitals and accused him of “acting like a gay”. Mr AA repeatedly requested co-workers not to make those sexual comments about him and he became increasingly disgruntled because of that harassment.
Mr AA took four weeks off work. He took long walks and swam at the beach. He also consulted his general practitioner, who prescribed sertraline, which was helpful in allowing him to settle. Mr AA had recently returned to work for four hours a shift and was managing reasonably well. The assailant had resigned and moved to Western Australia and “there were no particular psychiatric sequelae from the work related incident.” Dr Vickery added:
“[Mr AA] was driving without any restrictions. There was a reasonable memory and concentration span. There was no restriction to his social activities and he was attending the gym. He was also socialising with a new girlfriend. There had been an impairment in grooming after the incident, however this had improved. He ate a healthy protein rich diet and there was a good appetite.”
Under “Mental State Examination”, Dr Vickery noted that the worker appeared relaxed and made good eye contact and was spontaneous and co-operative. His “affect range was normal and his behaviour, mood and affect were appropriate.” Dr Vickery found no evidence of clinically significant anxiety, major depression, paranoid delusional ideation, formal thought disorder or gross cognitive impairment. There were no intrusive or distressing recollections of traumatic events, dissociative symptoms, flashback episodes, excessive psychological reactivity or efforts to avoid traumatic thoughts. Based on this examination, Dr Vickery concluded that Mr AA experienced an acute adjustment disorder that had subsequently resolved. Though the worker had returned to his pre-injury duties, Dr Vickery felt he should continue his antidepressant medication for up to six months. The prognosis was excellent for a complete recovery.
Dr Ballantyne reviewed the worker on Monday 3 March 2008 when he recorded:
“1. Visit for workers comp.
2. Also, general consult for sinusitis
1. Workers comp – return to work has been very good. Mood has been good, environment supportive.
Worked 9 hours yesterday.”
Dr Ballantyne issued a WorkCover certificate on 3 March 2008 in which he confirmed his previous diagnosis and added:
“Management Plan: 1. return to work plan has been going well. This week [Mr AA] should be on 4 days for the week, with normal shifts.
2. I expect that [Mr AA] should be able to return to normal duties with out [sic] issue next week. If all is well, I will see [him] in a month after that for an expected final certificate.”
On 19 March 2008, Dr Ballantyne recorded:
“Has been well and settled at work – considering quitting and going to Queensland–
Will need to continue on low dose of zoloft for six months or so, so suggest he return in a month fr MHP.
Final certificate given for w/comp”
Dr Ballantyne issued a final WorkCover certificate on 19 March 2008 certifying Mr AA to be fit for pre-injury duties. The doctor added in the certificate:
“Management Plan: 1. Has been going well at work, with stable mood. I think that [Mr AA] is ok to return to normal duties. He should see me as a general patient to monitor his mood, as I suspect he may have an underlying condition which needs monitoring, but the work related incident and issues are now completed, with return to previous level of health.”
Mr AA attended on Dr Bleier, general practitioner in Queensland, on 22 August 2008. Dr Bleier recorded:
“Was working in restaurant … in Jan
Had tension with other worker there who ended up attempting to stab him
Had investigation from hotel
Had panic insomnia
Difficulty getting another job previous work gave bad reference
Visa problem coming up may need to go out of country temporarily
Was put on Sertraline got side effects Stopped
No medication now
Saw Psychologist and Psychiatrist on one occasion in NSW
Would like to get further counselling.”
Mr AA returned to see Dr Bleier on 14 November 2008. Dr Bleier recorded:
“still anxious and depressed.
Can’t work with visa but OK in 2 weeks
Wants counselling and wants w/c case reopened.”
Dr Bleier’s certificate issued on 14 November 2008 recorded a history that “Since threatened with [a] knife at work [he] has been suffering from feelings of panic and insomnia.” Dr Bleier diagnosed “Post traumatic stress, anxious, depressed”. He did not express an opinion as to fitness for work.
Mr AA again attended on Dr Bleier on 17 November 2008. Dr Bleier recorded:
“Insurance requests more detail GIO
‘feels intimidated, doubts skills in work and relationship, lost passion in work in kitchen, feels he can no longer work in that environment, spending savings, wife is pregnant 3 months concern re ability to support family
Anxious lacking motivation
Poor sleep Can’t get to sleep
Feels he can’t work at present
Has guitar
When returned to work after incident had panic attack
Was on sertraline better but very sleepy and lack of interest in sex
Appetite ok
Does some Gym work
Wife working”
Dr Bleier reported to GIO on 17 November 2008 as follows:
“[Mr AA] has requested further information in relation to reopening his Work Cover case.
While working in NSW in January he was involved in an accident with a fellow worker who threatened him with a knife.
Following this he became anxious and depressed, suffered panic attacks and was unable to return to work.
He was put on an antidepressant but had a lot of side effects so he stopped these.
He has continued to have ongoing problems since.
He has lost his confidence and doubts his capacity to work as a chef and cope with relationships at work.
He has been anxious, lacking motivation and sleeping poorly. His wife is now pregnant and he has no income at present. These factors are adding to his stress.
I recommend that he has further counselling and rehabilitation to help him return to work.”
Dr Bleier reported again to GIO on 2 December 2008 to the following effect:
“Further to my letter dated 17th November 2008
[Mr AA] states that because of the residual effects of his traumatic experience of being threatened with a knife he cannot currently cope with working as he is very much on edge with an element of paranoia. He can feel very threatened and fearful with the slightest amount of criticism or attention.
I therefore feel he is unable to work at present.”
Dr Bleier issued a further certificate on 9 December 2008 in which he certified the worker to be unfit from 14 November 2008 until 14 January 2009 based on the same diagnosis set out in his earlier report. The later certificate included the following history:
“[Mr AA] states that because of the residual effects of his traumatic experience of being threatened with a knife he cannot currently cope with working as he is very much on edge with an element of paranoia. He can feel very threatened and fearful with the slightest amount of criticism or attention. He easily becomes anxious and depressed. [He] lacks confidence and doubts his capacity to work and cope with the work environment.”
At the request of his solicitors, Mr AA saw Dr Canaris, consultant psychiatrist, on 20 February 2009. In his report of 23 February 2009, Dr Canaris took a detailed history of Mr AA experiencing various problems at work with AB. He also recorded that the worker felt much better on sertraline, but after two or three weeks, he started to get side effects and began to feel very tired. He “wasn’t motivated to do anything” and “emotionally” felt like he had lost himself.
Dr Canaris recorded that the worker returned to work and stayed at his job for another three months. However, he felt as if people were laughing at him and that they were happy he had been away from the place. He also had “sexual problems” because of the medication. He felt like no-one would employ him and felt trapped. He felt “frustrated and anxious” at work and that people were blaming him for money that had been stolen from the restaurant.
In respect of his job in Queensland, Dr Canaris recorded that it had been suggested it would be better if the worker left after four or five weeks. They were not satisfied with him as he was not good enough. He had no work since leaving that job apart from filling in as a chef for a friend. He had not been able to find work since and his savings had run out. His wife was pregnant and he had split up with her because of “various problems”, but the situation around his job and with the visa was not helping him. He felt disappointed that he could not support his wife. He had lost all his passion for cooking.
Dr Canaris recorded that the worker had separated from his wife about two weeks earlier. He woke in the middle of the night thinking about his wife, the visa, and money. Over the preceding week, he had woken twice around two or three in the morning and a couple of times around five in the morning, unable to get back to sleep. He found that when he last worked he could not concentrate and could not do what was routine. He had been irritable and easily upset. He thought that his wife did not trust him. He got upset if his wife pointed at him during arguments because it reminded him of the knife incident in January 2008.
Mr AA also spoke of difficulties with his job in Queensland, where people had no respect. Dr Canaris also recorded that the worker’s appetite had been okay and his energy levels reasonable. He continued to work out regularly and enjoyed the training. However, he did not enjoy life, or at least, not every part of it. He took sertraline for four months but stopped, partly because of the sexual side effects and because he was “like a zombie”. The doctor noted that sertraline was not sedating, and that many people on it complain of feeling somewhat disconnected. The doctor added:
“He is in a difficult position in that liability for his worker’s compensation claim is in dispute and he has no Medicare cover. Moreover, he can’t work because of his visa. He ran out of money. He has made do with some gardening work for a neighbourhood centre in [Queensland] – they have been helping him with food (I omitted asking about accommodation).”
Dr Canaris also took a history that the worker had been robbed at knifepoint overseas when he was 14 years old. He had also been threatened with a knife while working on a cruise ship; however, at that time, he “wasn’t scared”, thinking that he could easily deal with the offender. However, the subject incident was especially upsetting because the assailant “kept coming – he didn’t give up” and the worker received no support. Though he had done nothing wrong, the worker still received a written warning. Dr Canaris concluded that the worker seemed to have felt isolated and powerless.
Dr Canaris took a detailed history of the worker’s background, noting that he had an unhappy childhood and that he was punished many times by his parents. The doctor found Mr AA to be a difficult historian because of his slow responses to questions and his brief replies. Dr Canaris formed the impression that the worker was struggling to express powerful emotions in his second language. The worker’s affect was restricted and dysphoric.
At first sight, the doctor felt that the intensity of the worker’s emotional responses seemed disproportionate to the triggering incident. They seemed “almost incongruous” in light of the worker’s imposing physique. However, the worker’s childhood background sensitised him to violence and specifically sensitised him vis-à-vis threats with a knife. His exposure to taunts from his co-workers, followed by his employer’s unsupportive response when he tried to defend himself, seemed to resonate with the lack of support he experienced from his parents. Dr Canaris diagnosed the worker as suffering from a “mixed anxiety depression, a condition not formally incorporated into the DSM-IV-TR, but one recognised by the ICD-10 classification used by the World Health Organisation and the NSW Department of Health”.
Dr Canaris sometimes used this diagnosis in patients suffering from what seems to be a forme fruste of post-traumatic stress disorder (‘PTSD’) following exposure to stress in which the full PTSD symptom complex is not present. Forme fruste is an aborted form of disease arrested before running its course; thus the disease appears in an atypical and indefinite form. The worker’s condition was not stable. He had not been able to access treatment and he was trapped “in an invidious situation not of his making”. His prognosis was bound up with the future of his claim.
On 8 March 2009, Dr Canaris provided a supplementary report dealing with the worker’s capacity for employment. The doctor conceded that he had not canvassed that question with the worker in detail. However, he noted the presence of significant psychiatric symptoms following the incidents at AB including high levels of anxiety, insomnia, fatigue, and irritability. The worker was unable to tolerate antidepressant medication. At the attendance on 20 February 2009, the worker looked very anxious and hypervigilant. If his condition at that interview was any guide to his mental state after leaving AB and commencing his job in Queensland, Dr Canaris concluded that the worker would have had substantial problems working “to the requisite speed in the pressured setting of a restaurant kitchen in a tourist resort.” Mr AA would also very likely have been prone to making more mistakes and misunderstanding instructions. Such difficulties would be consistent with a diagnosis of mixed anxiety depression.
Dr Canaris reported again on 8 May 2009, having spoken with Mr AA over the phone. The worker said that he felt trapped, partly because of “the visa situation”, feeling that he could not walk away and that “they were taking advantage” of him. He found the lack of two consecutive rest days to be exhausting. Also, he was doing desserts and had to stay back longer than other chefs. He also had to work in two other areas in the hotel. He found himself working with different people and equipment and that other chefs did not do what they should have done.
Dr Canaris recorded that the worker stopped his medication after a number of months and that, in the meantime, he had been “tired and sleepy” at work and was slow and had problems with organising things. His co-workers in the kitchen became critical of his performance, which Mr AA did not think was fair, as he did his best and became frustrated because he could not perform as he used to.
Dr Canaris added:
“Very shortly afterwards around the end of June or the beginning of July he resigned feeling that ‘it was unfair because I hadn’t done anything and I was getting so frustrated because I knew that if I had help from Human Resources and from management, no one would have tried to stab me and I wouldn’t have been taking antidepressant[s] and I haven’t done anything wrong and I was suffering.’”
After resigning, Mr AA moved to Queensland. He was still on antidepressants at that stage, though perhaps at a lower dose. He felt unmotivated. After he started the Queensland job, he found that there was no respect between workers and that he was slow. He got frustrated and again could not organise things. He had lost his creativity. He continued to feel very anxious and could not sleep. After two weeks in the job, he was told that there was no work for him and he was given four weeks’ notice.
He applied unsuccessfully for a job at the Sheraton, but was told he had a bad reference from AB. He found that he was unable to get work and his anxiety soared as he lost confidence. A few weeks earlier, he obtained employment in a restaurant. He found it hard going, with concentration problems, a rapid heartbeat and a tight chest. He was not on any medication and he had been separated from his partner (now pregnant) for three months. During the conversation, Dr Canaris noted that the worker seemed to be short of breath and sounded as if he was sobbing or fighting back tears.
The fact that the worker’s distress could be perceived over the phone suggested to Dr Canaris that his affect was more than likely anxious and depressed. He felt that the worker continued to suffer from a mixed anxiety depression and that he had significant symptoms following the knife episode at AB. Dr Ballantyne’s notes confirmed this. Dr Ballantyne’s notes also suggested a more sustained response to treatment and a more supportive workplace than the worker disclosed to Dr Canaris.
Dr Canaris speculated that the impression of a good response to treatment might have reflected the difficulty Mr AA had in expressing his emotions at that time. For example, Dr Ballantyne’s notes contained no reference to the worker’s sexual difficulties whilst on antidepressant medication. Dr Canaris concluded that “aspects of the history” would clearly need to be clarified with Mr AA. It was evident from the worker’s history that his anxiety and depression interfered substantially with his work performance. His lack of motivation, inability to concentrate, slow work, disengagement from fellow workers, and anxiety were all very troubling to him both at AB and while working in Queensland. Dr Canaris concluded:
“His anxiety and depression appear to have flowed partly from the knife incident and partly from difficulty adjusting to the ‘rugged’ work environment he encountered in the Australian setting – an issue to which his GP alludes in his report to the Human Resources Manager at [AB]”.
Dr Canaris reported again on 24 May 2009 in response to a request for clarification of the worker’s incapacity for work. He stated:
“Clearly, he was at least partially incapacitated from the latter period of his employment at [AB]. However, it is worth recalling that he was working in a very demanding and pressured environment in which ‘partial’ incapacity made him less efficient and hence effectively unemployable in the industry.
I note he worked subsequent to his time at [AB] but his underperformance seems to have precipitated his departure and possibly a poor reference greatly prejudicing his capacity for employment. I thought from his evident distress on the two consultations I had with him that he was at best marginally employable on the two occasions on which I spoke to him (even though I gather he was working at the time of the second consultation). As I indicated above, marginal employability would amount effectively to non-employability.”
Mr AA saw Dr Bleier on 11 August 2009. The doctor recorded the following note:
“Can’t cope with work
Has worked as chef all over the world
Now feels unable to deal with any pressure
Stress with personal life
Relationship split up because she was drinking and taking drugs
3 month old child Son difficulties with contact
Unsure about futureReason for visit:
Post traumatic stress disorder”
ARBITRATOR’S REASONS
The Arbitrator made the following findings:
(a) he was satisfied that the worker had suffered a psychiatric injury “related to employment” and “to which employment was a substantial contributing factor” (Reasons at [22]);
(b) because there was no evidence that the worker’s employment would have involved illegality, there was no need for him to consider the authorities of Singh v TAJ (Sydney) Pty Limited [2006] NSWCA 330 or NSW Police Service v Teofilo [2007] NSWWCCPD 190 (which dealt with a worker’s entitlement to compensation in circumstances where he or she did not have a valid work visa);
(c) there was no “clear persuasive analysis” to explain how the worker, having recovered in the eyes of Dr Ballantyne and Dr Vickery, did not see Dr Bleier until five months after his last visit to Dr Ballantyne and did not see Dr Bleier between 2 December 2008 and 11 August 2009 (Reasons at [50]);
(d) if Dr Canaris’s history that the worker took sertraline for four months was accepted, then it appeared that the worker ceased taking that medication in early June 2008, about the time that he left for Queensland (Reasons at [53]);
(e) though it was clear that Dr Canaris had read Dr Ballantyne’s report of 14 February 2008, he did not explain those parts of his own report that were inconsistent with Dr Ballantyne’s observations (Reasons at [57]);
(f) Dr Canaris appeared to have “entered the arena” to some degree (Reasons at [60]);
(g) Dr Canaris’s history that the worker resigned because he had been treated unfairly and was frustrated was inconsistent with the precise facts and with Dr Ballantyne’s contemporaneous notes, both as regards support in the workplace and the motive for moving to Queensland (Reasons at [65] and [66]);
(h) Dr Canaris never focused directly on the issue of whether the worker had recovered by about February/March 2008 and did not explain why he disagreed with Drs Vickery and Ballantyne on that issue (Reasons at [70]);
(i) neither the report from Dr Canaris nor from Dr Bleier persuaded him that the worker had not recovered before he left for Queensland, or that any incapacity in Queensland was connected with his employment with AB (Reasons at [72]);
(j) in all the circumstances, he preferred the evidence of Dr Vickery, supported by Dr Ballantyne, over the evidence of Dr Canaris (Reasons at [73]), and
(k) the worker was fit for his pre-injury duties from 19 March 2008 and there would be an award for the respondent.
SUBMISSIONS, DISCUSSION AND FINDINGS
It is submitted on behalf of Mr AA that:
(a) at the time of Dr Vickery’s report of 28 February 2008, Mr AA was only working four-hour shifts and remained on Zoloft. Therefore, Dr Vickery’s opinion that the worker was fit for work as at 28 February 2008 does not sit with Dr Ballantyne’s certification or the rehabilitation program. The Arbitrator should therefore have discounted Dr Vickery’s evidence;
(b) after 19 March 2008, Dr Ballantyne did not have the opportunity to assess the worker’s ongoing work capacity, “despite the Appellant having been prescribed Zoloft for at least a further 6 months”. Had the worker’s capacity been re-appraised, Dr Ballantyne “may well have supported a further incapacity had he been advised of the Appellant’s difficulties, presumably under medication, of being able to fulfil a normal workload satisfactorily in what the doctor described as a rugged work environment”;
(c) the worker’s evidence of having difficulty performing full unrestricted work after 19 March 2008 was not challenged by the respondent, either by way of evidence from the respondent or in cross-examination;
(d) the need to take Zoloft arose from the work-related injury. As Dr Ballantyne advised a continuation of that medication for a period of at least six months, that evidence of itself indicated that the effects of the injury had not ceased;
(e) only Drs Bleier and Canaris were apprised of the worker’s ongoing difficulties and they were the only doctors to examine the worker during the period of the claim, and
(f) there is no competing evidence in respect of the period of incapacity claimed.
It is submitted on behalf of the respondent that:
(a) Dr Bleier’s evidence is flawed for the reasons set out by the Arbitrator;
(b) the major stressors affected the worker’s life well after June 2008, when he moved to Queensland. The worker’s marriage had failed, he was concerned about lack of access to his child, and about his visa. These stressors were contemporaneous with his attendances on Dr Bleier, and his psychological problems at that time resulted from these stressors, rather than the events of 2007;
(c) to interfere with the Arbitrator’s decision would require a positive conclusion that the Arbitrator erred in accepting the clear, contemporaneous and consistent evidence of Drs Ballantyne and Vickery, and
(d) to adopt a position put on behalf of the worker would require an extremely strained interpretation of dubious evidence.
I agree that there are several reasons why I should not unreservedly accept Dr Vickery’s evidence. He wrongly stated (at page five) that Mr AA had resumed his pre-injury duties. In fact, Mr AA was still on a return to work program when he saw Dr Vickery and was only working four-hour shifts, not his longer pre-injury shifts. Further, though Dr Vickery concluded that the worker’s adjustment disorder had resolved, he recommended that he stay on antidepressants for up to six months and that his “prognosis was excellent for a complete recovery”. That was clearly inconsistent with his earlier opinion that Mr AA had recovered. I therefore have reservations about Dr Vickery’s conclusion, though his findings on examination are relevant and are referred to below.
Dr Ballantyne’s evidence is more persuasive. He saw Mr AA on several occasions and took an active role in monitoring his return to work. The doctor’s notes record Mr AA’s initial complaints on 1 February 2008 (which he clearly accepted as genuine) and his steady recovery over the following months. He noted on 11 February 2008 Mr AA’s “persisting anxiety related to [the] work environment” and referred him to Newpsych. Though Mr AA apparently attended Newpsych on two occasions, there is no evidence from that organisation.
In his report of 14 February 2008, Dr Ballantyne recorded that Rufus had resigned and that his departure removed a significant barrier to Mr AA’s return to work. The doctor’s reference to Mr AA specifically stating that he felt supported at work and was happy with the treatment he had received is significant because one of Mr AA’s main complaints is an alleged lack of support from management. There is no reason to doubt the accuracy of Dr Ballantyne’s notes.
On 18 February 2008, Dr Ballantyne recorded that Mr AA felt “much better”, having started Zoloft with no side effects.
Dr Ballantyne’s note on 25 February 2008 that Mr AA was “much more settled” and was “sleeping well” suggests a positive response to treatment and that Mr AA was recovering well. This is consistent with the WorkCover certificate of the same date that stated the worker was feeling “much improved”, was “sleeping better”, had an “overall improvement in his mindset”, and was happy about returning to the kitchen. It is also consistent with Dr Vickery’s opinion that Mr AA did not report any psychological complaints when he saw him on 27 February 2008.
Dr Ballantyne’s note on 3 March 2008 that the return to work had been “good” and the “environment supportive” is consistent with the WorkCover certificate of the same date that stated the return to work plan had been “going well”. This is again inconsistent with Mr AA’s evidence of continuing problems on his return to work. I have no reason to doubt the accuracy of Dr Ballantyne’s evidence.
Dr Ballantyne noted on 19 March 2008 that Mr AA had “been well and settled at work”. His WorkCover certificate of the same date recorded the worker to have a stable mood and that he was “ok to return to normal duties”. Though Dr Ballantyne wanted to continue to see Mr AA to “monitor his mood”, that was not because of continuing problems at work but because he suspected that Mr AA had an “underlying condition” that needed monitoring. Mr AA did not see Dr Ballantyne after 19 March 2008. Though the clinical notes refer to Dr Ballantyne having created letters on 27 March 2008, 16 May 2008, 5 June 2008, 25 July 2008 and 17 September 2008, none of those letters are in evidence. I infer that Mr AA returned to his normal work on or about 19 March 2008.
Mr AA’s evidence that he did not see Dr Ballantyne after 19 March 2008 because he was on antidepressants implies that he did not feel the need to seek treatment because of the benefit he received from the medication. That is inconsistent with his evidence that he was “very depressed” in the two to three months before he resigned. As a result, I do not accept Mr AA’s evidence that he was “very depressed” in the months before he resigned.
The issue is further complicated because it is not known exactly how long Mr AA remained on medication. Mr AA’s statements are silent on this issue. Dr Canaris’s history suggests that the Mr AA remained on Zoloft for about four months. If he experienced significant side effects while taking Zoloft, it is unusual that he did not see Dr Ballantyne about those side effects. That is especially so in circumstances where Dr Ballantyne was obviously sympathetic to his situation and on 19 March 2008 had asked him to return for review in one month.
Mr AA saw Dr Bleier on 22 August 2008 in Queensland. Whilst Dr Bleier took a history of an attempted stabbing at AB and of “panic insomnia”, he also noted several other stressors in Mr AA’s life at that time, namely, difficulty getting another job because of a bad reference from AB and a visa problem.
Dr Bleier’s report of 17 November 2008 is of little, if any, weight. The doctor’s notes recorded that Mr AA had a panic attack when he returned to work after the knife incident. However, Dr Ballantyne’s notes make no reference to such an attack. In his report to GIO of the same date, Dr Bleier stated that, after being threatened with a knife, Mr AA had been unable to return to work. That is clearly incorrect. Whilst Dr Bleier noted Mr AA’s complaints, he expressed no opinion on diagnosis or causation.
Dr Ballantyne’s notes on 25 February 2008, 3 March 2008 and 19 March 2008 clearly attest to a steady improvement in Mr AA’s mood, culminating in him being certified fit for his pre-injury duties from 19 March 2008. An unidentified document attached to the wage material produced by the respondent makes it clear that Mr AA resigned voluntarily on 19 June 2008 and that he last worked on 27 June 2008. Therefore, Mr AA worked in his usual job for just over three months after being certified fit for work on 19 March 2008.
In the light of Dr Ballantyne’s evidence of a full recovery, and given that Mr AA worked for AB for three months without seeking treatment before resigning to move to Queensland to be with his girlfriend (later to become his wife), Mr AA’s assertion that he could not work at AB any more because it was making him feel depressed is contrary to the objective evidence and I do not accept it.
Having regard to the above matters, I find that Mr AA recovered from his work-related generalised anxiety disorder and that he was fit for his pre-injury duties without restriction by 19 March 2008. The only reasonable conclusion from the evidence is that Mr AA functioned normally from that time until he resigned in late June 2008 and that his resignation was motivated by a desire to be with his girlfriend in Queensland, not because of any continuing symptoms of depression or anxiety.
Dr Canaris’s evidence is unpersuasive because it wrongly assumed that Mr AA never recovered from his initial anxiety and that he had significant symptoms until he resigned. That assumption is not consistent with the objective evidence. Dr Canaris noted that management was unsupportive, when in fact the opposite was the truth, at least so far as the return to work program was concerned. Dr Canaris based his opinion as to Mr AA’s unfitness for work on an assumption that his condition as at 20 February 2009 was a guide to how he would have been when he left AB. The evidence does not support that assumption and I do not accept it. Dr Canaris noted the inconsistencies between the history he took from Mr AA and Dr Ballantyne’s notes and suggested that they needed to be clarified with Mr AA. That never happened.
Dr Canaris’s history that Mr AA started to get side effects from Zoloft after about two or three weeks and wasn’t motivated and emotionally felt like he had lost himself (see [56] above) is inconsistent with Dr Ballantyne’s evidence of a steady improvement between February and March 2008. Similarly, Dr Canaris’s history that Mr AA felt that people were laughing at him and that they were happy he had been away from work (see [57] above) is inconsistent with Dr Ballantyne’s contemporaneous evidence that the return to work had been very good and the environment was supportive. Dr Ballantyne took no history of Mr AA feeling frustrated at work. Given the contemporaneous nature of Dr Ballantyne’s notes and given that he was closely involved with Mr AA’s return to work program, I prefer and accept his evidence where it conflicts with the evidence from Dr Canaris and Mr AA.
Though Dr Canaris took a history of Mr AA losing his job in Queensland because the employer was not satisfied with him because he was not good enough, Dr Bleier took no such history when he saw the worker on 22 August 2008.
Mr AA’s case hinges on a reconstruction by Dr Canaris. That reconstruction is based on a history from Mr AA that is inconsistent, in several key respects, with reliable contemporaneous evidence from Dr Ballantyne. For the reasons set out above, I prefer Dr Ballantyne’s evidence. It follows that, having conducted a review on the merits, I am satisfied that Mr AA recovered from the effects of his psychological injury (generalised anxiety disorder) by 19 March 2008 and that he has no entitlement to compensation beyond that date.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 1 October 2009 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
31 March 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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