Awad v Department of Ageing, Disability and Home Care (NSW) No 2
[2009] NSWWCCPD 53
•15 May 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Awad v Department of Ageing, Disability and Home Care (NSW) No 2 [2009] NSWWCCPD 53 | ||||
| APPELLANT: | Joseph Awad | ||||
| RESPONDENT: | Department of Ageing, Disability and Home Care (NSW) | ||||
| INSURER: | Allianz Australia Insurance Ltd (TMF Workers Compensation) | ||||
| FILE NUMBER: | A1-5725/08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 1 December 2008 | ||||
| ARBITRATOR: | Mr G. Brown | ||||
| DATE OF APPEAL DECISION: | 15 May 2009 | ||||
| SUBJECT MATTER OF DECISION: | Psychological injury; weight of evidence, and incapacity. | ||||
| PRESIDENTIAL MEMBER: | President, His Hon. Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Carroll & O’Dea Lawyers | |||
| Respondent: | McLean Lawyers | ||||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1 and 2 of the Certificate of Determination dated 1 December 2008 are confirmed. 2. The matter is remitted to a different arbitrator for determination of the claim for weekly compensation from 4 February 2008 to date and continuing, in accordance with the reasons in this decision. 3. The Respondent is to pay the Appellant’s costs of the appeal. | ||||
BACKGROUND TO THE APPEAL
On 18 December 2008, Mr Joseph Awad, (‘the Appellant/Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 December 2008.
The Respondent to the Appeal is the Department of Ageing, Disability and Home Care (NSW) (‘the Department/ Respondent/Employer’).
Mr Awad commenced work with the Department in 1985. He was initially employed as an assessor and progressed to a service coordinator in the 1990s. Prior to the current proceedings, he brought a claim in the Commission (WCC7997-07) in respect of an injury to his neck as a result of the nature and conditions from January 1991 to 28 August 2006. An award was entered in favour of the Department.
On 24 July 2008, Mr Award filed an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission. He claimed to have suffered a psychological injury on 6 November 2007. Further, he claimed that between 3 September 2007 and 6 November 2007, he developed severe anxiety leading to a major depression following the introduction of a new computer system and significantly heavier workload. He suffered a panic attack in September 2007 and was admitted overnight to hospital and later developed anxiety and depression. He claimed weekly compensation benefits at various rates for various closed periods between 21 September 2007 and 16 May 2008 and from 20 May 2008 to date and continuing.
The Application originally pleaded two additional injuries. The first was an aggravation of his psychological injury occurring in April 2008 when Mr Awad tried to return to work on reduced hours and, it is alleged, his neck and shoulder pain became “so bad” that he suffered a panic attack. The second, was a further allegation of an aggravation of “these injuries” on 27 May 2008, when the Appellant was subject to a performance management meeting concerning allegations of professional misconduct and fraud.
At the teleconference prior to the arbitration hearing, in response to the Respondent’s objections, the Worker amended the Application to delete the claims in respect of injury or aggravation of his psychological injury in April 2008 and on 27 May 2008. His claim was therefore limited to psychological injury with a deemed date of injury on 6 November 2007 (as agreed by the parties). The claim for compensation was later limited to a claim for weekly compensation for the period from 6 December 2007 to date and continuing.
On 15 August 2008, the Respondent filed a Reply. It disputed liability on the basis that Mr Awad had not suffered an injury within the meaning of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’). If he did suffer an injury, his employment was not a substantial contributing factor to the injury (section 9A), and he was not incapacitated due to the injury and the medical expenses claimed were not reasonable and necessary.
The matter proceeded to arbitration hearing on 28 October 2008 before a Commission arbitrator. Both parties were represented by counsel and made oral submissions. No oral evidence was called. The Arbitrator reserved and issued a Certificate of Determination and written Statement of Reasons (‘Reasons’) on 10 December 2008. It is from this decision that the Worker now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 1 December 2008 recorded the Arbitrator’s orders as follows:
“1. Respondent to pay the Applicant weekly payments of compensation week pursuant to s36 of the Workers Compensation Act 1987 (the 1987 Act) for the period 6 December 2007 to 3 February 2008 at the rate of $1096.15 per week.
2. Respondent to pay the Applicant’s costs as agreed or assessed.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 submission 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged on 18 December 2008, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Both parties concede that the monetary thresholds under section 352(2)(a) and (b) are met.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks to rely on fresh or additional evidence.
REVIEW
The concept of ‘review’ under section 352 of the 1998 Act was considered by the Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 (‘Chemler’), where, Spigelman CJ (with whom Basten JA and Bryson AJA agreed) observed at [28] and [30]:
“28.The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30.A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”
The nature of “review” under section 352 of the 1998 Act has most recently been considered by the NSW Court of Appeal in Sapina v Coles Myer Limited [2009] NSWCA 71. The Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator in the course of which the Deputy President approached his task by examining whether or not error had been displayed in the reasoning of the Arbitrator. It was held (Allsop P and Hoeben J, Beasley JA agreeing) that this was the wrong test for the task of review of the decision under the 1998 Act.
In the joint judgment of Allsop P and Hoeben J is an extensive and detailed examination of relevant authority concerning the proper construction of the term “review” ([17]-[59]). Following discussion of the authorities it was stated (at [57] and [58]):
“57 Whilst the new regime of dealing with workers’ compensation claims must be examined in its own statutory context, it is important to appreciate that the legislature has used a phrase that had in the prior regime, a tolerably settled meaning. Section 36 of the Compensation Court Act used the phrase “review the decision”. Subsections s 352 (1) and (5) of the WIM Act make clear that the “appeal” is to be by way of review of the decision. The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider that an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, “to decide whether the original decision is wrong [that is to] decide what is the true and correct view.” This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.
58 Just as error of the Arbitrator may be relevant, so might be the advantages of the Arbitrator in seeing witnesses. Nothing we have said, and none of the cases to which we have referred, necessarily requires the Presidential member to rehear the case or to recall all the witnesses. The approach of the Presidential member as to how he or she goes about reaching his or her own decision will be a matter for him or her within the confines and freedoms of s 354.”
I propose to apply these principles in the matter before me.
EVIDENCE
Mr Awad
Lay evidence
Mr Awad relied on a large volume of documentary evidence annexed to both his Application and a number of applications to admit late evidence. It included Mr Awad’s signed statements, medical reports and certificates and a bundle of documents including greeting cards, printed email messages, and correspondence between a various staff of the department and the Worker and between the Worker and his doctors and solicitors on a variety of issues, copies of ‘hazard report’ forms, and copies of a number of editions of the ‘PSA Homecare Newsletter’. Whilst I have had regard to all of these documents in the determination of this appeal, I briefly summarize below the evidence relevant to the appeal proceedings.
Mr Awad relied on a signed statement dated 18 January 2008. He reported that between 3 September 2007 and 6 November 2007 he developed severe anxiety and depression following the introduction of a new computer system, exceptional workloads, a large number of hazard reports, (which I infer involved some element of urgent action by Mr Awad). He stated that other staff in the workplace had been affected and stressed by the problems associated with the introduction of the new computer system.
As a result of increasing workload, slowness and errors caused by the new computer system, Mr Awad broke down and cried for an hour and he went off on stress leave on 6 November 2007. He consulted his general practitioner, Dr Huynh, the next day who placed him on “workers compensation leave” and suggested he reduce his work to three days a week. He also referred Mr Awad to Mr Allan, psychologist.
On 22 November 2007 Mr Awad suffered a fall leaving work and injured his neck.
On 3 December 2007, Mr Awad’s manager, Ms Jeanne Walters, informed Mr Awad he was to undergo a performance appraisal. She also stated there were discrepancies of 18 hours in his time sheets over the last 10 months and she advised that she had referred this for investigation of alleged misconduct. Mr Awad was to respond to the allegations on that same day.
On 4 December 2007 he felt very stressed and disorientated and his neck was troubling him. He had a final “breakdown” on 6 December 2007.
Mr Awad stated that he was still suffering from “deep depression and high anxiety” and was certified unfit for work by his psychiatrist until early January 2008.
In addition to his statement of evidence, Mr Awad relied on a number of letters he prepared addressed to his employer, the industrial officer at the Public Service Association NSW (‘PSA’) and his solicitors.
Due to the poorly prepared statement of evidence it is necessary to have regard to the documentary evidence to establish an accurate chronology of events.
In a letter dated 4 February 2008, addressed to Ms Jeanne Walters, at Centre Management of the Cumberland Branch, Mr Awad stated that he had requested a delay in the performance management sessions on his first day back at work but this was refused. He also referred to his doctors having requested a gradual return to work and noted that his employer had not received the final workers compensation medical certificate. He stated that since his breakdown, he continued to have symptoms but they were under control, such as to allow him to return to some social activities, daily living and return to full time work. He also referred to the fact that he had sustained an injury to his neck and right shoulder in November 2007 and whilst he was suffering pain from this injury, his mental breakdown at the time overshadowed it.
In a letter, unsigned and with a hand written date of “25/2/08” addressed to Kerry Butson, Industrial officer at the PSA, Mr Awad commented that since his breakdown at work he had experienced ongoing symptoms of depression, difficulty performing complicated tasks, sexual dysfunction, loss of appetite, irritability, and social avoidance. He also stated that he had been given new medication from his psychiatrist resulting in him feeling delayed in his thoughts and actions.
After his employer referred Mr Awad to HealthQuest, he wrote to HealthQuest on 10 March 2008. The letter sought to respond to, contradict and clarify documentary material apparently forwarded to HeathQuest from Ms Lesley Jennings from the Human Resources section in the Department. Ms Jennings’ referral documentation is not in evidence. Mr Awad referred to working half days five days per week, but did not specify when he performed these duties. He did, however, comment that he was not fully well and continued to suffer from anxiety and depression.
Mr Awad prepared a letter dated 26 March 2008, addressed to the industrial officer at the PSA and to his solicitors. He stated that he attended his psychiatrist on 19 March 2008 at which time:
“…I fell into a heap when I was talking about my work and anxiety-depression I feel there. Dr Pickering has recommended that I not return to my previous position, pending reassignment or relocation. The new computer software has made the service coordinator job more difficult and unmanageable for me. Every day I face my Anxiety levels go up further and I fall into deeper Depression and feel like ending it all.”
The letter concluded with Mr Awad stating that he did want to work but not as an S/C (service coordinator).
In a letter dated 16 May 2008, addressed to his solicitors, Mr Awad confirmed that he still had underling psychological problems and was attending his psychiatrist on a fortnightly basis. Mr Awad stated that his doctor had asked him when he was going to retire as a result of his physical and mental problems. Mr Awad stated that he needed to do fewer hours at work until he had recovered from his psychological and physical problems. Further he stated:
“I know if I did not have the big home mortgage I have, I would have stopped full time work long ago.”
In a letter addressed to his solicitors dated 19 June 2008, Mr Awad detailed his absences from work and periods in which he was on sick leave, workers compensation leave and flex leave. In relation to the periods relevant to the appeal, that is, from 3 February 2008, he stated that he had one sick day on 6 February 2008. On 22 April 2008, he had another “Breakdown at work due to workload and sore neck” and had 13 days unpaid leave from 22 April 2008 to 1 May 2008. On 2 May 2008 he returned to work and worked six days, at four hours per day. From 13 May 2008 to 16 May 2008, he worked six hours per day. He recorded that on 20 May 2008, (presumably this date should read 27 May 2008) at 1.30pm he:
“-had another breakdown at the end of the work performance review meeting with management , after management surprised me by serving me with the investigation papers, re alleged fraudulent and confidentiality breaches, after I had a breakdown at work” (page 2 ).
From 20 May 2008 to 26 June 2008, Mr Awad had 24 days of unpaid leave.
Mr Awad completed an injury/incident assessment form on 27 May 2008, claiming to have suffered a psychological injury on that day. The circumstances of the injury were described as:
“My second day at work on full duties. At the end of the performance review meeting I was served without notice of a large document I had to sign for, for alleged fraudulent acts at work and professional misconduct from three to six months ago. At that moment I was taken by surprise and shocked and fell into uncontrollable crying due to the inaccurate allegations from last year.”
The claim form dated 4 July 2008 noted a previous injury in November 2007, when an unusually heavy workload, the introduction of a new computer system, a high volume of reported hazards in his area and a lack of support resulted in the Mr Awad sustaining a psychological injury. In response to the question: “Has worker returned to work?” The following is recorded:
“Not since the incident on the 27.05.08
Has been sick and put on heavier medication, three times the amount of the previous incident.”
Mr Awad, wrote to his solicitors on 27 May 2008, stating that he had had a meeting with the relieving manager, the area manager, the new acting manager, and the PSA representative, Mr Lambert, to discuss his work performance and expectations, because he had been certified fit for full duties at seven hours per day. At the end meeting, Mr Awad stated that he was served with documents about an allegation of a discrepancy in his time sheets in relation to nine hours of overtime worked in September 2007. Mr Awad began to cry and was unable to continue working.
On 4 June 2008, Mr Awad wrote to the PSA confirming he suffered a further psychological breakdown on 27 May 2008, after the meeting addressing poor work performance and being confronted with allegations of fraud and misconduct relating to events in September/October 2007. He obtained telephone counselling from a psychologist through the Employees Assistance Program (EAP) and on 2 June 2008, his psychiatrist recommended he have two weeks off work and increase his medication.
Mr Awad prepared a letter addressed to his solicitors dated 19 June 2008. It is referenced as
“Re: Report on Unpaid time off for the Psychological Injury at work in 2007.” This letter specified a number of single days of sick leave and ‘flex leave’ during September and October 2007. Mr Awad then referred to “The Breakdown at work” on Thursday 6 November 2007, after which he was off work on compensation payments until 16 November 2007, when he returned to work three days a week. His claim was rejected on 7 December 2007 and from that day to 3 February 2008 he had 37 days unpaid leave. On 6 February 2008 he had a sick day due to his psychological injury. Reference is made to another breakdown at work on 22 April 2008, after which he had 13 days of unpaid leave. For six days from 2 May 2008 he was working four hours a day, with three hours per day unpaid and from 13 May 2008 to 16 May 2008 he worked six hours each day.
Mr Awad also provided a signed statement dated 23 July 2008, prepared at the request of Allianz. Mr Awad stated that he was subjected to inappropriate performance management process in a meeting on 27 May 2008 and also that his errors in learning the new computer system were inappropriately reported to management.
Also annexed to the Application were three timesheets for Mr Awad.
The timesheet for the period 5 November 2007 to 30 November 2007 confirm that Mr Awad was on workers compensation leave for 11 days during that period, commencing on the afternoon of 7 November 2007.
The timesheet for the period 3 December 2007 to 28 December 2007, included two days of workers compensation leave and 11 days of sick leave, against which hand written notation is made “w/comp denied”.
The other timesheet is for the period 19 May to 13 June 2008. In this period, recreation leave is recorded for the week commencing 19 May 2008. A seven-hour day is recorded on 26 May 2008, a short day of 2½ hours is recorded for 27 May 2008. Thereafter the remaining days in the period are recorded as ‘EL’ (extended leave).
Medical evidence
Dr Pickering, Mr Awad’s treating psychiatrist, prepared a report dated 13 December 2007, addressed to Dr Huynh, treating general practitioner. Dr Pickering recorded a history of increasing workloads, which were exacerbated by the new computer system, and a dispute with management over alleged incorrect entries in his timesheets. Mr Awad developed depressive symptoms, low mood, irritability, loss of libido, low energy, erratic and poor sleep patters. Dr Pickering diagnosed a Major Depressive Disorder related to unreasonable workplace stresses. He noted that he had also had panic attacks, the first of which occurred in September 2007, resulting in an admission to hospital. Mr Awad reported a fear of dying. He had two further attacks on 6 and 14 November 2007. Dr Pickering prescribed Zoloft and recommended that Mr Awad remain off work until he was reviewed in January.
Dr Pickering, in a report dated 11 March 2008, addressed to Mr Awad’s solicitors, confirmed the diagnosis of Major Depressive Disorder and noted that Mr Awad also suffered from panic attacks. He had returned to work but was experiencing difficulties. He had decreased energy, impaired concentration and confusion and was making uncharacteristic errors. The doctor noted that on 22 November 2007 Mr Awad injured his neck at work. Dr Pickering had four consultations with the Worker and noted that on 4 February 2008 Mr Awad had returned to full time work for six days but was anxious, absentminded, sleeping poorly and socially withdrawn. On 20 February 2008 Mr Awad took Escitalpram but became excessively sedated and subsequently decreased the medication. Whilst on the medication he began to improve and stated that it was his neck problems preventing him returning to fulltime work. Dr Pickering noted that since late February 2008 he was working four hours per day.
Dr Pickering confirmed that the treatment had resulted in a partial improvement, but Mr Awad was “far from well” though his disability did not prevent him from working at least part time. He was uncertain as to the duration of the condition and how long it would take Mr Awad to return to normal. The doctor concluded that the prognosis for most individuals with the illness was for a return to normal function.
In a brief report to Dr Huynh dated 20 March 2008, Dr Pickering noted that Mr Awad “had decompensated since going back to work.” Dr Pickering stated:
“I now believe that he is not capable of functioning adequately in that particular workplace and should be put off pending reassignment or relocation.”
He noted that Mr Awad was symptomatic with tears, flushing and signs of intense agitation. He noted that Mr Awad disliked the workplace and had become much worse since returning there.
Dr Huynh, in a report addressed to Mr Awad’s solicitors dated 20 March 2008, referred both to Mr Awad’s complaints of neck and shoulder injury and his psychological injury. Mr Awad first consulted Dr Huynh for his psychological injury on 8 November 2007. He gave a history of increasing anxiety, panic attack, and depression after finding it difficult to cope with the introduction of the new computer system and increasing workloads. Dr Huynh noted that Dr Pickering had prescribed antidepressant medication and counselling sessions. Dr Huynh noted that Mr Awad had been unsuccessful in his attempts to return to full hours as a result of his neck pain and “aggravated anxiety and depression”. Dr Huynh concluded:
“At present he appears unable to cope with his full time pre-injury duties due to excessive workload and also he is not in the best state of mind. He feels he does not mind falling off the bridge as he feels numb towards everything that happens around him. Medication he takes blunts his feelings, making him felt [sic] indifferent so that he can cope with his depression better. He was scheduled to see Dr Pickering soon for further treatment of his depression. At present he is working 6 hours a day and I hope that he can manage at work.”
Dr Huynh concluded that, as at 20 March 2008, Mr Awad was not fit for full time pre-injury duties due to the excessive workloads and his state of mind. The doctor noted that at the time of his examination Mr Awad was working six hours a day.
Dr Huynh provided a number of WorkCover medical certificates. He certified Mr Awad unfit for duties from 8 November 2007 to 12 November 2007 as a result of an unspecific psychological injury. Mr Awad was certified unfit for pre-injury duties on 13 November 2007, with reference to “Regular breaks during working hours. Relaxing activities at work.”
On 23 Novembers 2007, Mr Awad was certified fit for normal hours three days a week for the period 24 November 2007 to 9 December 2007. He was certified unfit from 6 December 2007 to 15 December 2007, with a diagnosis of:
“Psychological injury/depression/stress/anxiety/breakdowns”
Dr Huynh certified Mr Awad unfit due to his psychological injury, depression, anxiety and panic attacks from 15 December 2007 to 4 January 2008.
There is no certificate in evidence for the period 5 January 2008 to 20 January 2008. The next certificate, in the sequence concerning the psychological injury, is dated 18 January 2008, which certified Mr Awad fit for suitable duties of four hours per day, 3 days per week from 21 January 2008 to 27 January 2008.
In a certificate dated 25 January 2008, Mr Awad was certified fit for suitable duties of four hours per day, five days per week for the period 28 January 2008 to 3 February 2008. There is an additional notation on the certificate “for the period between 28/1 till 3.2.08 as suggested by Dr Pickering- treating psychiatrist”. The certificate also states that Mr Awad is fit for pre-injury duties from 4 February 2008.
The next certificate issued by Dr Huynh related to an aggravation of a neck injury on an unspecified date and certifies Mr Awad unfit for work for three days (20 February 2008 to 22 February 2008) and for the period 25 February 2008 to 9 March 2008, Mr Awad was certified fit for suitable duties of 4 hours per day and a lifting limit of 10kg.
A certificate dated 27 February 2008, refers to psychological injury and certifies Mr Awad fit for suitable duties from 27 February 2008 to 9 March 2008.
A certificate dated 11 April 2008 referred to a diagnosis of an aggravation of a neck injury following a fall at work (which aggravated the psychological/stress condition). Mr Awad was certified fit for suitable duties from 14 April 2008 to 27 April 2008 of four hours per day, five days per week.
A certificate dated 6 May 2008 referred to an aggravation injury to Mr Awad’s neck following the fall at work. The worker was certified fit for suitable duties from 28 April 2008 to 11 May 2008 of four hours per day, five days per week with no lifting using the right arm greater than 2kgs and avoiding lifting above shoulder height because of his neck injury.
There are no other certificates in evidence until 30 May 2008, when Mr Awad is again certified unfit for work as a result of depression and anxiety from a psychological injury at work. Dr Huynh, in certificates dated 30 May 2008 through to 30 June 2008, certifies Mr Awad totally unfit for work for the period 27 May 2008 to 14 July 2008.
In a number of certificates dated from 25 July 2008 to 8 October 2008, Mr Awad was certified unfit for work from 30 July 2008 to 22 November 2008, as a result of depression and anxiety attacks.
Ms Joscelyne, psychologist, treated Mr Awad at the request of Dr Pickering. In a report dated 11 July 2008, Ms Joscelyne noted that Mr Awad first consulted her on 4 July 2008. He presented with symptoms consistent with a diagnosis of a Major Depressive Episode. Ms Joscelyne noted Mr Awad’s complaints in relation to the new computer system, workloads, and an investigation of fraudulent entries on his time sheets. These stresses culminated in a panic attack in September 2007. Mr Awad reported suicidal ideation in February and March 2008. She concluded that he was reluctant to return to his workplace. He disliked aspects of his work and he expressed concern about his ability to cope with the demands of the role in light of his distractibility and indecisiveness. She noted that he was training to be a telephone counsellor with the Salvation Army and considered himself suited to this type of work. He reported that his mood had improved over the past two months since he had commenced on Duloxetine.
Mr Awad was referred to HealthQuest by the Department and was examined on two occasions by a medical practitioner, Dr Mahadev, and a consultant psychologist, Ms Berg. In a report dated 3 April 2008, it was noted that the history provided by Mr Awad was that he experienced what he thought was a heart attack three days after the introduction of a new computer system in September 2007. He was taken to Westmead Hospital and diagnosed with a panic attack and referred to his general practitioner. He returned to normal duties after a few days off work but found he was experiencing further anxiety, a loss of confidence and difficulty coping with work. He broke down crying in November 2007 and attended a psychologist, Peter Allen. He was advised to return to work although he did not feel well enough. It was noted that on 22 November 2007, whilst running to his car, he tripped and fell injuring his neck and on 5 December 2007 he had a further break down at work and his psychiatrist at that stage recommended he remain off work until 3 February 2008.
The report noted that Mr Awad continued experiencing further difficulties at work until he ceased work in December 2007 until February 2008. During this time he attended Dr Pickering, psychiatrist, who prescribed antidepressant medication. Mr Awad stated that he returned to full duties on 4 February 2008, but was on restricted duties again from 27 February 2008 to 9 March 2008 due to neck pain and psychological stresses. He advised that he had been given a reduced workload to assist and since 9 March 2008 he had been off work with neck pain.
Mr Awad told HealthQuest that he felt “on top of the world” when he returned to work in February and that the computer system was improving, but he also felt “the stress building up again” and he had a reduced resilience for full time work.
At the time of the HealthQuest examination, Mr Awad reported that he was working five hours per day, but was continuing to experience neck pain and cramping brought on by prolonged computer use.
In relation to his psychological condition, the HealthQuest report concluded that Mr Awad suffered from an adjustment disorder with depressed and anxious mood in late 2007 as a reaction to the changes in the workplace and the difficulty of coping with work stresses. Further, it was noted he appeared to have been unable to resume full duties since November 2007, apart from a few weeks in February 2008. Whilst he lacked the resilience for full duties in his substantive position it was believed that, from a psychological perspective, he reported no clinically significant symptoms at the time of examination and that motivation, job satisfaction and suitability were influencing his ability to return to full duties.
The HeathQuest report concluded that Mr Awad was fit for full duties from a psychological perspective, but was at risk of a relapse if he was “unable resolve his intentions of returning to full duties”. It was, however, conceded in the final recommendations that, as a result of his neck injury he was currently fit for five hours of work per day, five days per week with a lifting restriction of 10kgs and that he should be provided with an opportunity for regular breaks every half to one hour and progress towards upgrading to full normal duties.
In a further HealthQuest report dated 19 September 2008, it was noted that Mr Awad had returned to a suitable duties programme of four hours per day, five days per week from 14 April 2008. He increased his hours to six hours per day from 12 May 2008. He was provided with a mentor to assist him with his training and he was closely monitored by his managers to ensure that he was provided with all available support and assistance.
He continued to have difficulty both undertaking and accurately completing, specific tasks he was requested to perform. The report noted that on 26 May 2008, Mr Awad had upgraded to fulltime, seven hours per day as a Service Coordinator. His diagnosis remained as an adjustment disorder with depressed and anxious mood, which developed, in late 2007. It was noted that he had been unable to return to full duties since November 2007. The return to work plan from April 2008 was not successful and he ceased work six weeks later due to psychological distress. It was also noted that his condition had not improved since he had been off work and it was believed that he was at high risk of further relapses if he returned to his substantive position.
On 27 May 2008 a meeting was held with Mr Awad, his PSA support person and his manager to address concerns regarding his ability to successfully carry out his work tasks. At the meeting documents were provided to him in relation to allegations of misconduct that were being investigated by the Ethics and Professional Standards Division of the Department. After the meeting he was upset and he went home early. He subsequently called in sick and provided a WorkCover certificate for the period 27 May to 14 August 2008. It was noted that his employer did not have alternative suitable duties available to him and the Department had requested a review by HealthQuest as to his physical and psychological ability to return to his permanent substantive position given his continued absence from the workplace.
In relation to his neck injury, it was noted he suffered a severe soft tissue injury with chronic neck and right shoulder pain. From a physical perspective, his workstation had been modified and from a medical perspective there was no contraindication for him maintaining his current job with ergonomic adjustments, however the final recommendation in the report was that he was permanently unfit for the full range of his duties of his substantive position as a Service Coordinator.
The Department’s Evidence
Lay evidence
The Department relied on a Pre-liability Assessment Report dated 27 November 2007 prepared by Ms Adriene Margarin, clinical psychologist, from Centre for Corporate Health. Mr Awad was referred for assessment in relation to the compensation claim for psychological injury on 6 November 2007 and as part of that assessment Ms Margarin interviewed Ms Walters, the Centre Service Manager, Ms Ryan, the Service Coordinator, Mr Handley, the Acting Service Centre Manager at the Department, and also spoke to Dr Huynh, Mr Awad’s general practitioner. The report included a detailed description of each of the interviewees’ recollections of the events and circumstances of the events giving rise to Mr Awad’s developing the depressive disorder.
The report concluded that Mr Awad’s workload was well regulated and consistent with that of the other service coordinators and there was insufficient evidence that Mr Awad was experiencing a higher than normal workload. His role was commensurate with his knowledge level and experience. It was suggested that Mr Awad’s perception of the issues had been highly negative and an overly personalised reaction rather than being a feature of the work environment. The report further concluded that the author was of the opinion that work was not a substantial contributing factor to his current stress. He had been provided with adequate training and support in relation to the implementation of the new computer system and after the initial transition period, in September 2007, staff had become accustom to the change. There was a lack of evidence to suggest he was experiencing a high workload.
The Respondent also relied on a signed statement from Mr Saul Handley, the Acting Service Centre Manager of the Department and the office in which the Worker was employed. His statement dated 4 December 2007 confirmed that he was the Acting Service Centre Manager from 13 September through to mid November 2007, when Ms Walters, Service Centre Manager was on leave. He was a trainer in the new system and instrumental in rolling it out in the Department.
Mr Handley acknowledged that the system was slow and created issues of time management for all service coordinators and it had an impact on staff’s time management initially in the first three weeks although the service coordinators made the necessary adjustments. Mr Handley stated he knew that Mr Awad was distressed, however, Mr Handley felt that this was due Mr Awad lacking understanding of how the computer system worked and that Mr Awad’s peers appeared to have a better grasp then he, of the system implemented.
Mr Handley provided one-on-one support to Mr Awad on request. On or about 1 or 2 November 2007 there was an email request by Mr Awad for further training in the IT system. Mr Handley suggested a meeting to discuss his training needs and to provide direct support. He confirmed that a meeting was arranged with Mr Awad on 6 November 2007, after Mr Awad had collapsed into tears. He spent three hours taking Mr Awad through the basic principles of the IT system. He was of the opinion that a lot of support had been provided to the service coordinators in Mr Awad’s office. Ms Starky, the service coordinator, and trainer was assigned Mr Awad as a “buddy” to assist him in training. Mr Handley also confirmed that there were other training sessions provided to staff with implementation and roll out of the new IT system although he was not aware of whether Mr Awad had attended the training or utilised them effectively.
Mr Handley confirmed that Mr Awad had the second largest team in the unit and he believed that the office at Parramatta had been performing an average number of hours allocated for each service coordinator in the State and he did not believe that Mr Awad was placed under stress because of his allocated hours of service. Mr Handley confirmed that Mr Awad approached him on a number of occasions in relation to his workload. On 6 November 2007, Mr Handley confirmed Mr Awad appeared distressed but calmed down in the afternoon and stayed for the three hours one-on-one training session with him. Mr Handley stated Mr Awad had stated that he did not understand why he was crying and feeling as if he was not in control.
Medical evidence
The Respondent did not qualify a medical expert.
It relied on documents produced in response to a Direction to Produce on Dr Huynh. They included the doctor’s clinical notes in respect of Mr Awad’s attendances from September 2006 through to 30 June 2008.
Dr Huynh’s handwritten notes are extremely difficult to read and many of the entries are indecipherable. The clinical record cards in evidence date from 1 September 2006 to September 2008. In respect of attendances for psychological treatment, the notes include a reference in November 2007 (the precise day of consultation not reproduced in photocopy of documents) to “stress/panic at wk 3/7”. Further entries in November refer to a referral for psychological assessment. On 14 November or December 2007, Dr Huynh referred to “anxiety /panic attack”. There are further references in the December 2007 consultations to anxiety /depression. A reference to Zoloft. The entries of 8 and 25 January 2008 refer to “feels better”.
On 11 February 2008, Dr Huynh notes read:
“M/C to wk
unfit 6/2/08 ( stress)”
On 3 April 2008 reference is made to “Lexapho 20g/d” and on 3 May 2008 the doctor also recorded Lexapho 40g, followed by an indecipherable notation and followed by “(for anxiety)”.
The entries in June through to September 2008, refer to depression and anxiety and psychological treatment.
Dr Huynh’s clinical notes include one page only of a letter from Businesslink to HealthQuest, which appears to be the letter of referral for the HealthQuest examination conducted on 3 April 2008.
Also included in the doctor’s documents was “Pre-liability stress assessment-summary report”. Ms Wagner made a diagnosis of “Major Depression Single Episode” and also concluded that employment was a substantial contributing under section 9A. A short summary of an interview with Dr Pickering, makes no reference to the prior condition Mr Awad was suffering. She notes that Dr Pickering had been monitoring Mr Awad every two weeks for “a few months” and that Dr Pickering considered that Mr Awad was suffering from a major depressive disorder.
Dr Huynh referred Mr Awad to Mr Allen, clinical psychologist, who prepared a report date 12 December 2007. He noted Mr Awad presented with panic/anxiety symptoms in response to work stresses but he was not suffering from a panic disorder at the time of the examination. Mr Allen believed that Mr Awad’s symptoms were best described as adjustment disorder with anxiety. He noted that Mr Awad was a somewhat perfectionist personality type and was predisposed to anxiety problems. Mr Allen commenced anxiety management strategies. Whilst he initially considered that it was appropriate for Mr Awad to work three days a week to help reduce his anxiety until he developed better anxiety management skills, he noted that Mr Awad’s workload appeared to build up in his absences from the workplace, and there was an increase in the perceived demands each time he returned to work. Mr Allen noted that Mr Awad’s workers compensation claim had been declined and he therefore focused treatment on coping strategies, on the assumption that Mr Awad would be returning to fulltime duties in the near future.
Dr Huynh’s records contained a number of ‘return to work plans’ in respect of a neck and right shoulder injury sustained on 22 November 2007. In the return to work plan dated 12 March 2008 the Worker was certified fit to return to normal duties seven hours per day from 12 March 2008 with a review on 20 March 2008. A return to work plan signed by Ms King, IM&R Coordinator, dated 20 March 2008, referred to the plan commencing on that date with a review date of 10 April 2008, with the plan being for Mr Awad to work five hours per day, with lifting restriction of 10kgs and regular breaks from his workstation.
A return to work plan signed by Dr Huyhn dated 16 April 2008 certified Mr Awad fit for four hours per day, five days per week with a commencement date to be confirmed as a result of the injury to his neck and right shoulder.
A return to work plan dated 12 May 2008 in relation to the neck and right shoulder injury sustained on 22 November 2007 certified the worker fit for six hours per day, five days per week commencing from 12 May 2008 to 25 May 2008.
An “Injury Management Plan #1” from Allianz dated 11 July 2008, referred to a date of injury of 27 May 2008, following a meeting with management regarding a misconduct investigation. The long-term return to work goal was to return Mr Awad to full duties.
ARBITRATION HEARING
At the arbitration, Mr Harrington, counsel for Mr Awad, submitted that all the periods of incapacity claimed resulted from the psychological injury deemed to have occurred on 6 November 2007 and were not the result of subsequent injuries. He submitted that Mr Awad should be compensated for total incapacity.
In respect of periods when Mr Awad was off work for reasons other than his psychological condition, namely as a result of his neck injury, Mr Harrington said at T4:45:
“He is still incapacitated for [sic-by] his psychiatric condition so he’d probably [be] entitled to some weekly payments in that period.”
In the alternative to his submission that Mr Awad was totally incapacitated for work, Mr Harrington submitted that if it was found that Mr Awad was partially incapacitated for work, then his present ability to earn in the labour market reasonably accessible to him was $300.00 to $500.00 per week. The parties agreed that his probable earning were $1,096.00 per week (see T4:14).
Mr Best, counsel for the Respondent, disputed Mr Harrington’s submission that the psychological injury in November 2007 was the ‘genesis’ and any subsequent incapacity ‘the revelation’ of that genesis. He submitted that the evidence established that the later physical and psychological injuries were causally distinct from the November 2007 psychological injury (see T8:30-55).
Mr Best concluded that the Worker bore the onus of proof and if there was insufficient information to be satisfied that the onus had been discharged no award could be entered. In the alternative, Mr Best submitted that because Mr Awad had returned to full duties on 26 May 2008, his residual earning capacity from that time was equal to his probable earnings of $1096.00 per week and therefore Mr Awad would not be entitled to an award of compensation in any event because he had no incapacity from 26 May 2008 causally related to the pleaded injury (6 November 2007).
ARBITRATOR’S FINDINGS
The Arbitrator found that Mr Awad suffered a psychological injury in the later part of 2007 and that his work was a substantial contributing factor to the injury. The parties agreed that the deemed date of injury was 6 November 2007 (see Reasons [35] and [39]). These findings are not challenged on appeal.
In relation to whether Mr Awad had an incapacity resulting from the November 2007 psychological injury, the Arbitrator considered each period detailed in Part 5.1 of the Application separately. The claim for compensation was limited to a number of specific closed periods from 21 September 2007 to 16 May 2008 and an ongoing claim from 20 May 2008 to date and continuing. The periods specified in the Application correspond to the letter prepared by Mr Awad addressed to his solicitors dated 19 June 2008 (see [41] above). At the arbitration, the claim was limited to the periods commencing from 6 December 2007 rather than 21 September 2007.
The Arbitrator found that from 6 December 2007 to 3 February 2008, the worker was totally incapacitated for work as a result of the November 2007 psychological injury. This finding is not challenged on appeal.
The next period claimed was a single day’s leave on 6 February 2008, when the Worker submitted that he attended for psychological treatment. The Arbitrator found that none of the medical reports or WorkCover medical certificates indicated that the Worker was unfit for work on that day. The Arbitrator concluded that the Worker had not discharged the evidentiary onus in relation this single day’s leave.
The Arbitrator dealt with three separate periods in April and May 2008 (22 April 2008 to 1 May 2008, 1 May 2008 to 9 May 2008 and 13 May 2008 to 16 May 2008). Mr Awad took annual leave from 22 April 2008 to 1 May 2008 (13 days), from 1 May 2008 to 9 May 2008 he worked four hours per day and from 13 May 2008 to 16 May 2008 he worked six-hours per day.
The Arbitrator was not persuaded that the evidence established that the Worker was incapacitated for work during these periods as a result of his psychological injury. He referred to the medical evidence and the rehabilitation and return to work plans and concluded, at Reasons [75]-[77]]:
“75.On balance I am persuaded that, although perhaps vulnerable to a relapse, Mr Awad had recovered sufficiently to resume full duties from a psychological injury perspective. I am also persuaded there may have existed a continuing effect of the psychological injury that perhaps rendered Mr Awad vulnerable to a relapse however I am persuaded that his condition by 3 April 2008 was sufficient to enable him to return to full duties from a psychological injury perspective. Further I am satisfied from a psychological injury perspective such injury did not interfere with Mr Awad’s ability to work in the labour market in which he was working or was reasonably expected to work (see Arnotts Snack Products Pty Ltd v Yacob 1985 155 CLR 171, Ball v William Hunt & Sons (1912) AC 496) On balance I am satisfied that as at 3 April 2008 the Applicant suffered no incapacity for work resulting from psychological injury suffered on 6 November 2007.
76. There is insufficient medical and statement evidence of the Applicant (including statements dated 29 January 2008, 10 March 2008 and 23 July 2008) to satisfy me that the Applicant was off work during the period 22 April 2008 through to 16 May resulting from the psychological injury of 6 November 2007.
77. On balance I am satisfied that to the extent Mr Awad had an incapacity for work during the above periods the incapacity was a result of factors other than the psychological injury he suffered on 6 November 2007, such as the physical limitations as indicated and supported by the relevant WorkCover medical certificates and return to work plan reports covering these periods.”
In relation to the final period from 20 May 2008 to date and continuing, the Arbitrator again found that the Worker had not discharged the evidentiary onus of establishing that any incapacity during this period was as a result of the psychological injury in November 2007.
The Arbitrator relied on the HealthQuest report dated 14 April 2008 (examination date of 3 April 2008), in which Ms Bree, clinical psychologist concluded that Mr Awad was fit for a full return to duties from a psychological perspective. Further, the return to work plan signed by Dr Huynh dated 16 May 2008, referred to suitable duties relating to his neck injury not his psychological condition.
In addition, the Arbitrator noted that Mr Awad had signed an injuries/incident assessment form referring to injury on 27 May 2008, when on his second day on full duties, and at the end of a performance review meeting, he was served with documents relating to alleged fraudulent act and professional misconduct occurring three to six months previously and as a result he suffered a further “breakdown”.
Whilst there was no dispute between the parties that Mr Awad returned to full duties on 26 May 2008, the Arbitrator concluded that the events on 27 May 2008, which were not the subject of the current claim, may have ‘impacted on” Mr Awad. However, having accepted the opinion of Ms Bree, from HealthQuest, the Arbitrator concluded that after 3 April 2008, Mr Awad had no incapacity for work resulting from the psychological injury dated 6 November 2007.
ISSUES IN DISPUTE
Mr Awad submits that the Arbitrator:
a. misconceived the medical evidence, failed to consider relevant evidence and made a decision that was against the weight of evidence;
b. made a finding of incapacity (at [75] of his Reasons), which was contrary to his later finding that the worker had no incapacity after 3 February 2008 as a result of his psychological injury, and
c. should have had regard to Cluff v Dorahy Bros Pty Ltd [1979] NSWLR 435 and made a continuing award of weekly compensation payments.
SUBMISSIONS ON APPEAL
Mr Awad
Mr Awad suffered psychological injury in the period leading up to 6 November 2007 as a result of work stressors with the introduction of a new computer system. He was referred to Dr Pickering who first saw him 13 December 2007 and diagnosed Major Depressive Disorder.
Mr Awad was certified unfit for work from 6 December 2007 to 3 February 2008.
The Arbitrator erred in finding Mr Awad was not incapacitated for work when he continued to suffer the effects of the psychological injury. He attempted to return to work from 3 February 2008 on a number of occasions, but only returned to work for brief periods because he was unable to cope with the stresses of full time work because of his psychological injury.
The gravaman of the Arbitrator’s decision is that although the Worker continues to suffer the effects of the injury, by 3 February 2008, he is not incapacitated as a result of it.
Dr Pickering’s evidence establishes that on 18 January 2008, the Worker was still suffering from a major depressive disorder.
Dr Pickering consulted with the Worker on 4 February 2008, the day after the arbitrator had found, in effect, that Mr Awad was not incapacitated as a result of his psychological injury. The doctor’s assessment of Mr Awad’s condition at that time was contrary to the Arbitrator’s finding.
The medical evidence of Dr Pickering is not contradicted and is contrary to the Arbitrator’s finding. Dr Pickering’s evidence is that the Worker continues to suffer a Major Depressive Disorder and has difficulty maintaining himself at work and “is assisted in his functioning by the intake of major anti-depressive medication.” (Submissions, page 9 (xii)).
In his report dated 11 March 2008, Dr Pickering considered the Worker’s condition was causally related to the workload prior to November 2007 and the subsequent events exacerbated his condition, but were not the prime cause.
Medical certificates from the general practitioner dated various dates between 27 February 2008 and 6 September 2008, certify the Worker unfit for work due to his psychological condition.
On 26 June 2008, Dr Pickering referred Mr Awad for 12 sessions with a psychologist.
Mr Awad had a neck and shoulder injury and was incapacitated for work as a result of this physical injury from 25 February 2008 to 9 March 2008. This co-existed with his incapacity resulting from his psychological injury.
The Arbitrator’s finding at [75] of his Reasons (as set out above at [105]), is contrary to the medical evidence and such a finding should entitle the Worker to an award of compensation for partial incapacity at least. Pursuant to section 47 of the 1987 Act, the Arbitrator’s finding at [75] of his Reasons required the making of an award of weekly compensation, at least on the basis of partial incapacity.
Although not clearly stated, the only available inference to be drawn from the Arbitrator’s decision is that the event of November 2007 caused a major depressive disorder, which has continued to the present day, however, the incapacity for work after February 2008 was caused by the work stressors in or around February 2008, when he attempted to return to work. If this is the Arbitrator’s finding then the Arbitrator misdirected himself in failing to have regard to Cluff v Dorahy Brothers Pty Ltd [1979] NSWLR 435 (‘Cluff’).
Mr Awad seeks to have the Arbitrator’s decision set aside, and a finding substituted that he suffers an ongoing incapacity as a result of the psychological injury dated 6 November 2007. Further, Mr Awad submits that the Presidential member reassess his entitlement to compensation after February 2008, either on the basis of total or partial incapacity.
The Department
The Arbitrator did not misconceive or disregard the medical evidence. His finding at [75] of his Reasons was not inconsistent with his determination that there was no incapacity after 3 February 2008.
Dr Pickering did not examine the Worker on 4 February 2008.
The Worker returned to full time work on 4 February 2008. This is consistent with the Arbitrator’s finding of fact as to incapacity.
The Respondent accepts that Mr Awad continued to seek treatment for his psychological injury after he returned to full-time work. It is settled law that injury can produce ongoing effects without resulting in incapacity.
The history recorded by Dr Pickering on 20 February 2008, that it was the worker’s neck problems which were preventing his return to work full-time, was consistent with the clinical records and medical certificates from Dr Huynh (see Arbitrator’s Reasons [59]–[61])
The Respondent relies on the content of an email from the Worker to his supervisor Ms Walters, dated 4 March 2008, in which he concedes that he was taking medication for his anxiety and depression but that he was “not dysfunctional”.
The medical certificates from Dr Huynh (referred to above at [119]), on which Mr Awad relies, fail to support the claim for incapacity because they fail to state the cause of the injury, which is relevant, given that the worker suffered further psychological injury on 27 May 2008.
The Respondent relies on Dr Pickering’s report, dated 11 March 2008, in which the doctor expressed an opinion that the Worker’s disability did not prevent him from working at least part time and that his prognosis was excellent.
It was open to the Arbitrator to accept that the Worker had substantially recovered from the psychological injury when he resumed full duties on 6 February 2008 and the subsequent incapacity was as a result of his neck injury.
Findings of injury and even incapacity do not of themselves result in an entitlement to compensation. The issue is whether the incapacity results in a diminution of earning capacity. This is not established on the evidence.
The Respondent objects to the Worker relying for the first time on section 47 of the 1987 Act, when the provision was not raised in argument before the Arbitrator.
The inference the Worker submits can be drawn from the Arbitrator’s decision (see [123] above) is flawed. The Arbitrator made no such findings and merely determined that the Worker had no incapacity after 3 February 2008 when he returned to full time duties.
The Respondent seeks to have the Arbitrator’s decision confirmed on appeal.
DISCUSSION AND FINDINGS
The evidence established that Mr Awad suffered a significant psychological injury in the form of a Major Depressive Disorder on 6 November 2007, employment was a substantial contributing factor to the injury, and that as a result of that injury, he continues to suffer the effects of the injury, receive treatment from a psychiatrist and take anti-depressive medication. Mr Awad, does not seek to disturb the Arbitrator’s finding on injury but seeks to challenge the Arbitrator’s findings in respect of the periods of alleged incapacity after 3 February 2008.
The Arbitrator’s task of assessing whether the Worker also suffered an incapacity for work resulting from the November 2007 psychological injury, after he returned to work on 4 February 2008, was difficult, and complicated by the fact that Mr Awad suffered an alleged neck and shoulder injury on 22 November 2007. After this neck injury, he required time off work and was subject to a graded return to work plan, which involved some physical restrictions and modification of his workstation. He also alleged later psychological injuries or aggravations in April 2008 and on 27 May 2008, which were originally pleaded but later deleted from the Application.
In respect of the alleged incapacity after 3 February 2008, the Arbitrator was not satisfied that Mr Awad had proved the reason for his absence from work on 6 February 2008.
Although the parties did not assist the Arbitrator by directing his attention to the relevant evidence during the arbitration hearing, contrary to the Arbitrator’s finding that there was no evidence in relation to 6 February 2008, there was evidence in Dr Huynh’s clinical notes that he had issued a medical certificate for 6 February 2008 because Mr Awad was unfit for work due to “ stress” (see [85] above). Unfortunately this medical certificate was not in evidence, however the doctor’s clinical notes, which were in evidence, support the Worker’s claim. The Arbitrator’s finding that he had failed to discharge the evidentiary onus was in error.
The subsequent periods of incapacity claimed in the Application commenced on 22 April 2008. The Arbitrator declined to enter an award in favour of Mr Awad in respect of these periods of alleged incapacity because he relied on the HealthQuest report dated 14 April 2008 to reach the conclusion that after 3 April 2008, Mr Awad had no incapacity for work arising from the November 2007 injury.
It is clear from Dr Pickering’s report dated 11 March 2008 that Mr Awad consulted the doctor on 13 and 21 December 2007, 18 January, 20 February and 6 March 2008, Contrary to the Appellant’s submissions, there is nothing to indicate that Mr Awad attended for treatment on 4 February 2008. Dr Pickering recorded that he discussed a graded return to work with Mr Awad in the consultation on 18 January 2008. The doctor recorded that on 4 February 2008, Mr Awad returned to full-time work and was there for 6 days, not that Mr Awad had attended for treatment on 4 February 2008. The doctor also recorded that Mr Awad remained irritable, lacked energy was socially withdrawn, and “tendered to get worse as the day wore on.” The doctor concluded that whilst Mr Awad was fit for at least part-time work, he was far from well and the duration of his illness was uncertain.
Though Mr Awad said on 4 February 2008, that he was able to resume work full-time despite his symptoms (see [30] above), by 25 February 2008 Mr Awad reported in a letter to Kerry Butson from the PSA that he was having difficulty completing complicated tasks, because of his depression. He also found reading aggravated his symptoms, he suffered irritability and social withdrawal, and his medication made him delayed in thoughts and actions.
As already noted at [59] and [60] above, Mr Awad had concurrent WorkCover Certificates for the period 27 February 2008 and 9 March 2008.
Mr Awad continued to report to his employer, his doctors and his solicitors that he was experiencing difficulty undertaking his work as a result of symptoms of anxiety and depression. Mr Awad’s treating doctors were in agreement that his psychological condition was continuing to inhibit his ability to perform his full pre-injury duties after 4 February 2008. Dr Pickering’s report dated 20 March 2008 addressed to Dr Huynh confirmed that Mr Awad had decompensated at work and should be placed off work pending reassignment or relocation. Dr Huynh, in his report dated 20 March 2008, concluded that Mr Awad appeared “unable to cope” with full-time pre-injury duties.
In contrast, the HealthQuest report dated 14 April 2008, upon which the Arbitrator relied, concluded from a psychological perspective Mr Awad reported no clinically significant symptoms and he was fit for full duties but may be at risk of a relapse.
The HealthQuest report listed documents reviewed by the authors. Whilst reference is made to two certificates from Dr Huynh (dated 19/2/08 and 25/2/08), it did not refer to any of the other certificates issued by Dr Huynh nor any of Dr Pickering’s reports and in particular his report dated 20 March 2008, issued only two weeks before the HeathQuest examination date (3 April 2008). There was no reference to Dr Huynh’s report dated 20 March 2008. In the psychological consultation part of the examination under “history” Mr Awad informed the examiners that he had been referred to Dr Pickering and being prescribed antidepressant medication and that the medication had been changed three times, most recently three weeks ago as a result of negative side affects.
In the absence of having Dr Pickering’s and Huynh’s reports available, the authors were relying on the history provided by Mr Awad in respect of his treatment and management under his specialist psychiatrist. That history was clearly deficient. The authors did not have available to them Dr Pickering’s diagnosis, details of the number and dates of his consultations with Mr Awad, the type and dosages of anti-depressant medication. In particular the authors were unaware that Dr Pickering had assessed Mr Awad as “decompensating”, or Dr Pickering’s prognosis outlined in the report dated 20 March 2008, only two weeks before the HealthQuest consultation, that Mr Awad was not capable of functioning adequately in his workplace. Having only two medical certificates from Dr Huynh, also meant that the authors did not have available details of Mr Awad’s consultation with Dr Huynh or his opinion as to Mr Awad’s level of incapacity as expressed in his report dated 20 March 2008. Dr Mahadev and Ms Berg from HealthQuest had an inaccurate and incomplete history, which diminished the weight to be attached to their reports.
Further, it is noted that when Mr Awad was re-examined by HealthQuest and a report prepared dated 19 September 2008, it was noted that from 14 April 2008 Mr Awad was on a return to work program and had increased his hours to six per day from 12 May 2008. He was provided with a mentor to assist his training and was closely monitored and provided with support and assistance, but he continued to have difficulties in performing work tasks to the required standard. The report concluded that he continued to suffer from an adjustment disorder with depressed mood since November 2007 and his return to work plan from April 2008 had failed on 27 May 2008 when he went off work after becoming upset at the performance meeting on that day. It was noted that Mr Awad’s condition had not improved and he was at high risk of further relapses if he returned to his position.
For these reasons, having reviewed the medical and lay evidence, including Mr Awad’s statements and the evidence in his correspondence to his employer, solicitors, union representative and general practitioner, I prefer the evidence of Drs Pickering and Huynh over that of HealthQuest.
I find that the Arbitrator placed undue weight on the first report from HealthQuest dated 14 April 2008, and failed to accord appropriate weight to Mr Awad’s evidence, and the reports from Dr Pickering and Dr Huynh in determining whether from 4 February 2008, Mr Awad had an ongoing incapacity for work as a result of the November 2007 injury.
The Arbitrator’s finding that from 3 April 2008, Mr Awad was no longer incapacitated as a result of the November psychological injury was a conclusion that was against the weight of evidence. It follows that it must be revoked.
Having upheld the appeal on the first ground of appeal, it is unnecessary to consider the remaining grounds.
Having conducted a review on the merits (Chemler) I am satisfied that, contrary to the Arbitrator’s finding, the weight of evidence supports a finding that from 4 February 2008, Mr Awad continued to suffer an incapacity for work as a result of the November 2007 psychological injury and I make that finding.
I empathise with the difficulties faced by the Arbitrator, given the omission from the pleadings of allegations of additional physical and psychological injuries injury and the unsatisfactory state of the evidence presented by both parties.
Despite particularising very specific periods of total and partial incapacity from 22 April 2008 to 1 May 2008, three hours per day for the period 1 May 2008 to 9 May 2008 and one hour per day from 13 May 2008 to 16 May 2008, and total incapacity for the period 20 May 2008 to date and continuing, neither of Mr Awad’s two statements addressed the issue of incapacity throughout the period claimed. The statement dated 18 January 2008, pre-dated his return to work and his statement dated 23 July 2008 dealt only with the events occurring on or about 27 May 2008.
There are deficiencies in the medical certificates and the evidence relating to any incapacity resulting from any subsequent injuries. Before the Arbitrator, counsel for the Worker addressed the issue of incapacity in broad terms only. His primary submission being that Mr Awad had a total incapacity resulting from the 6 November 2007 injury. As an alternative, it was submitted that Mr Awad had a partial incapacity, with a modest residual earning.
A determination of causation and what incapacity results from the November 2007 injury is required. As was held by Latham CJ in Ward v Corrimal-Balgownie Colliers Ltd [1938] HCA 70; (1938) 61 CLR 120:
“A partial incapacity which, in the sense stated, results from an injury may itself, without the intervention of any new cause, result in total incapacity; for example, a man whose eye is injured may be only partially incapacitated for a time, but the injury may, without any new cause operating, so develop as to produce complete blindness in both eyes. In such a case first the partial incapacity, and next the total incapacity, would have resulted from the injury. The position is the same if the injury aggravates an already existing disease so as to bring about incapacity, partial or total.
In other cases there may already be partial incapacity resulting from an injury, and other causes, quite independent of and not associated with the injury in any way, may afterwards bring about further or total incapacity. In such a case the worker is still entitled to compensation, but it is only the incapacity which is the result of the injury (and not the added incapacity which is the result of other causes) for which there is any liability under the Act.”
Whilst it is preferable wherever possible to finalise outstanding issues on appeal (Chubb Security Australia P/L v Trevarrow [2004] NSWCA 344), the state of the evidence and the parties’ failure to adequately address on the periods, extent and cause of the incapacity prevents me from redetermining this matter.
Having made a finding that the Worker has an incapacity for work after 3 February 2008 as a result of the 6 November 2007 injury, it is appropriate to remit this matter to a different arbitrator for determination of the period, extent and cause of this incapacity. Both parties should be given the opportunity to file any additional evidence and to make submissions on whether any award is total or partial, and, if partial, as to the steps set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 and in particular any discretionary issues to be considered.
DECISION
Paragraphs 1 and 2 of the Certificate of Determination dated 1 December 2008 are confirmed.
The matter is remitted to a different arbitrator for determination of the claim for weekly compensation from 4 February 2008 to date and continuing, in accordance with the reasons in this decision.
COSTS
The Respondent to pay the Appellant’s costs of the appeal.
His Hon. Judge Keating
President
15 May 2009
I, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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