Bergin v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 166
•22 October 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Bergin v Simon Blackwood (Workers' Compensation | ||||
| Regulator) [2014] QIRC 166 | |||||
| PARTIES: | Bergin, Roger | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (First Respondent) | |||||
| And | |||||
| Townsville Hospital and Health Service | |||||
| (Second Respondent) | |||||
| CASE NO: | WC/2012/216 | ||||
| PROCEEDING: | Appeal against a decision of Workers' Compensation | ||||
| Regulator | |||||
| DELIVERED ON: | 22 October 2014 | ||||
| HEARING DATES: | 30 January 2013, 16 December 2013, 13 January | ||||
| 2014, 14 January 2013, 12 March 2014 | |||||
| MEMBER: | Industrial Commissioner Black | ||||
ORDERS : |
|
decision that the appellant’s claim is one for
acceptance.
3. The matter of costs is reserved.
CATCHWORDS: | Aggravation of prior psychological condition; previous history of psychological illness or injury; mix of workplace and non-work stressors; whether disposition to mental illness not the workplace incident the cause of injury; whether employment a |
| significant contributing factor. | |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 |
| s550 | |
| APPEARANCES: | Mr S. P. Sapsford, Counsel, instructed by Sciacca’s |
| Solicitors, the Appellant Mr M. P. Williams, Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the First Respondent Ms D. Callaghan, Counsel, instructed by McCullough Robertson, the Second Respondent | |
| Decision |
Introduction
[1] Mr Roger Bergin (the appellant) appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to reject his application for workers' compensation. The appeal is lodged pursuant to s. 550 of the Worker's Compensation and Rehabilitation Act 2003 ("the Act").
[2] Mr Bergin originally lodged his application for compensation with WorkCover Queensland on 6 February 2012. On 23 March 2012, WorkCover rejected his application for workers' compensation. On 15 April 2012, Mr Bergin asked the regulator to review WorkCover's decision. On 24 May 2012, the regulator confirmed WorkCover's decision that Mr Bergin's claim was one for rejection.
The hearing of Mr Bergin’s appeal commenced on 30 January 2013, however the
hearing was adjourned when the appellant became aware that documents which the appellant claimed had not been discovered were to be put to a witness giving evidence for the appellant. At this point in the proceedings the appellant had opened his case and had adduced evidence from two witnesses. Ultimately the substantive hearing did not resume until 13 January 2014 when it was agreed by all parties that the transcript of proceedings on 30 January 2013 would be excluded from consideration and the proceedings would start afresh on 13 January 2014.
Exhibit 1
[4] At the commencement of proceedings the first respondent tendered the following documents which were admitted into the evidence as Exhibit 1:
WorkCover Queensland Application for Compensation dated 6 February
2012; WorkCover Queensland Reasons for Decision dated 23 March 2012; Q-COMP Application for Claim Review dated 15 April 2012; and Q-COMP Review Unit Decision dated 24 May 2012.
Nature of the Appeal
[5] The appeal to the Commission is by way of a hearing de novo. To succeed with his appeal, the appellant must establish on the balance of probabilities that he sustained a psychological injury, including an aggravation of a psychological injury, arising out of or in the course of his employment where his employment was a significant contributing factor. Further the injury must not be withdrawn from section 32(1) of the Act by the operation of section 32(5) of the Act.
Evidence
[6] During the course of the proceedings, evidence was provided by 5 witnesses. The witnesses for the appellant were as follows:
Roger Bergin (appellant); Dr Michael Likely (Consultant Psychiatrist); and Dr Dhananjay Pawar (General Practitioner).
The witnesses for the Second Respondent were as follows:
Glenn Carrey (Assistant Manager-Support Services); and Dr Ricardo Caniato (Psychiatrist). No witnesses were called by the Regulator.
Workplace Incident
[7] At the time of his injury Bergin was employed by Queensland Health at the Townsville Hospital and Health Service in the capacity of operational services officer. He had been employed by the hospital since 3 March 2008. On the afternoon of Friday 20 January 2012 Bergin was involved in a workplace incident while transferring a patient who had been hospitalised for a hip replacement from
hospital to his home. While patient transfer did not comprise Bergin’s substantive or
regular work activity he had had been undertaking this work for a couple of weeks prior to 20 January and he was familiar with the operation of the trolleys used to
transfer patients known as “Stryker” trolleys. Typically the transfer is effected by
strapping the patient into a stretcher which is attached to the top of the trolley. The patient remains on the trolley throughout the transfer process. When the ambulance
arrives at the patient’s home the trolley is withdrawn from the ambulance and the
trolley legs extended.
[8] When Bergin arrived at the premises of the patient, he proceeded to take the trolley out of the vehicle and locked the trolley legs into place. However prior to moving the trolley towards the residence, the head end of the trolley collapsed and fell to the ground. The patient, who remained restrained on the trolley, fell with the trolley but did not make contact with the ground as the stretcher came to rest a few inches
above ground level. Bergin’s description of the event is recorded at T1-12 in the
following terms:
"… as I was approaching his house, he said to me, Roger, just reverse in the
driveway. It’ll make it easier for you. So I reversed in his concrete driveway.
He had a high house. He said – so I opened the back doors. His wife was
there and his son was sitting under the house. I remember I opened the doors.
I started pulling the stretcher out. My – legs at the feet end clicked in. When I
pulled him out further, I thought I heard the click of the lock on the front
wheels, but when I pulled him right out, he crashed to the ground and startedscreaming.
…
Was that a gradual thing? Did he gradually descend to ground level, or - - -?--- pulled it right out, they just folded back up under. So he started screaming,
and his wife come running. And I just said, I’m really sorry, I’m really sorry.
And he said, don’t worry about it. I’m – I’m fine. I’m fine. I’ll be fine. He
said just get me under the house, and I’ll be fine. So I lowered my end of the
stretcher down so that he was laying flat. On the bottom of the stretchers they
have tiny little wheels that you can roll along the ground. I rolled him under
the house."
[9] Neither the patient, his family, nor Bergin formed the view that the patient should be immediately returned to the hospital. While there is some difference about the response of the patient to the fall it is not in dispute that after the patient had recovered from any immediate shock or discomfort arising from the trolley collapse the patient was able to be manoeuvred into his home and assisted onto his feet.
[10] Bergin returned to the hospital at approximately 5.30pm and commenced his next job of transporting a disabled girl from the hospital to a nursing home. In this exercise Bergin used the same stretcher and completed the transfer without any incident or malfunction of the trolley apparatus. On his return to the hospital he completed an incident report but was unable to file the report because a supervisor was not present at the time. Bergin was not rostered to work on the week-end but he resumed work as scheduled the following Monday (23 February 2012) and handed in the incident report.
[11] The incident was subsequently reviewed by Bergin’s supervisor and referred to Mr
Carrey who was an assistant manager in the support services area. It was Carrey’s
evidence that he met with Bergin early on 23 January to discuss the incident and that Bergin had described what had occurred. Carrey also said that at some point he had phoned the patient and that he discussed the incident with him and that the patient had described to him what had happened. Carrey said that either in the meeting with Bergin on 23 January, or later that week, he informed Bergin that "the gentlemen on the trolley had made a complaint following that incident, and he needed to be aware of that, and he seemed reasonably fine with that" (T2-29). Bergin also became aware around the same time that the patient had been brought back into the hospital for tests after which the patient was allowed to go home.
[12] After the event Carrey ensured that all the "Stryker" trolleys were tested by an accredited contractor. He said in his evidence that the tests completed did not
disclose any fault or defect in any of the hospital’s trolleys. A consideration of this
evidence in conjunction with the fact that Bergin transferred another patient without incident when using the same trolley immediately after the accident on 20 January suggests that the collapse of the trolley may have been attributable to operator error, not to a mechanical defect in the trolley apparatus. Indeed in his evidence Begin acknowledged that he blamed himself for the accident.
[13] Bergin continued to work as scheduled for the rest of the week, however he said he remained stressed by the incident and concerned at the welfare of the patient. On Wednesday the following week (1 February, 2012) Bergin was unable to continue
with his duties and left the workplace. An entry in Dr Pawar’s clinical records dated
1 February 2012 noted that when transferring palliative care patients to Charters Towers, the vehicle began overheating and Bergin was forced to return to base.
Later that day he attended at the surgery of Dr Pawar. Dr Pawar’s clinical records,
which are in the evidence as Exhibit 5, note that Bergin was suffering from acute, severe gastritis, caused by work-related incident, worsening of his anxiety, severe vomiting, and abdominal pain. On 4 February 2012 Dr Pawar issued a workers compensation certificate that certified that Mr Bergin was incapacitated for work for the period 1 February to 15 February 2012. The certificate recorded a diagnosis of "severe gastritis, Anxiety due to Work related stress".
[14] The appellant maintained that the 20 January event led to the development of either a psychiatric injury in its own right or an aggravation of a pre-existing depressive condition. It was noted that, in his report of 23 August 2012, Dr Likely diagnosed Bergin with an adjustment disorder with anxious mood secondary to the work related accident of 20 January 2012. Bergin had earlier been assessed by Dr Caniato on 5 March 2012 and had been diagnosed with a major depressive disorder, recurrent.
[15] The appellant also claimed that events following the incident on 20 January 2012
negatively impacted Bergin’s psychological condition. Consideration here is given
to the patient complaint which was significant particularly if Bergin was to blame for the accident, and the recall of the patient to the hospital for tests and a check-up
of his post-operative condition. It was Dr Likely’s evidence that the recall of the patient for investigations would have had a significant impact on Bergin’s
psychological state and would have been enough to cause Bergin to decompensate.
[16] Not long after the 20 January 2012 incident, and some time in February 2012, Bergin suffered a relationship breakdown. Given that the relationship breakdown had been a significant negative stressor in the past, a matter in contention was whether the relationship breakdown and not the workplace incident was the
principal cause of Bergin’s decompensation. The proposition was denied by Bergin
who said that the breakup was amicable and that he remained friends with his former
partner after the breakup.Management Action
[17] The appellant submitted that neither the regulator nor the employer promoted an argument that sections 32(5)(a) and (b) of the Act were relevant to the determination
of the appeal. In the circumstances it was the appellant’s view that the issue for
determination by the Commission was whether the event of 20 January 2012 was a significant contributing factor to the contraction of an injury or the aggravation of a pre-existing injury.
[18] The first respondent however submitted that it was open for the Commission to find
that the appellant’s injury arose out of the management action that followed the 20
January 2012 incident. This view was based on a conclusion that Bergin felt that his employer had treated him unfairly in relation to the incident. If the Commission entered a finding that the injury arose out of management action, it was submitted
that the employer’s response and action taken in relation to the incident should be
found to be reasonable having regard to all the circumstances of this case.
[19] In my view there is insufficient evidence to support a finding that Bergin’s injury
arose out of or in the course of management action. Such a possibility was not raised in either of the medical reports tendered nor was in canvassed in the evidence of Dr Likely, Dr Caniato, nor the employer witness, Mr Carrey. Consequently the determination of the appeal is limited to a consideration of whether Bergin has sustained his injury, including an aggravation, in accordance with s 32(1) of the Act.
[20] In this regard the respondents did not concede that there was any association
between Bergin’s employment and the injury. It followed from their perspective
that the injury did not occur in the course of employment nor was the employment a
significant contributing factor to the injury.History of Mental Illness and Employment Implications
[21] Bergin’s history of mental illness and its intersection with the workplace was
canvassed in some detail in the evidence and it is summarised hereunder:
(i) In October 2002 Bergin was admitted to the mental health unit of the Ayr Hospital for depression. Contributing factors were childhood abuse, a relationship breakdown and suicidal thoughts. For some subsequent period of time Bergin received psychological and/or psychiatric assistance and he was off work for up to two months. In his evidence Bergin agreed that he had suffered depression since childhood and that at the time he was sensitive to criticism and that he had low self-esteem. He said that he took anti-depressants between 2002 and 2006.
(ii) Bergin started work at a Home Hill hostel or nursing home in December 2002. In 2006 he stopped work because of depression and anxiety related to alleged bullying by workmates. He subsequently lodged a WorkCover claim and in respect thereto consulted a number of psychologists and/or psychiatrists between October 2006 and March 2008. Ultimately Bergin was off work for about eighteen months as a result of his injury. Bergin agreed that around the same time he began experiencing abdominal symptoms in respect of which he was diagnosed with severe gastropathy due to a reflux condition which was treated by prescription medication. On 3 March 2008 Begin commenced work at the Townsville Hospital.
(iii) In July 2010 Bergin complained about his treatment by a co-worker, Theresa Watt, and around the same time he attended on a Doctor Germali with symptoms of stress. Bergin saw Dr Germali on three occasions between July and October 2010. Bergin was also experiencing problems with his stomach around this time. He was taking an anti-depressant at the time.
The conflict with Watts gave rise to a workers compensation claim in early 2011. Bergin visited Dr Germali in March 2011 with symptoms of stress, nausea and diarrhoea following which Dr Germali issued a workers compensation certificate. While there was some conflict in the evidence it appeared that Bergin was off work for up to six weeks from 9 March 2011 to 20 April 2011.
(iv) Also in early March 2011 Bergin was informed that he had been unsuccessful in securing a permanent transfer to the laundry. Bergin was very upset by this development and according to Carrey he took nearly a month off work on sick leave soon thereafter. This appears to be the same period of sick leave that resulted from the certificate issued by Dr Germali in March 2011.
(v) In April 2011 Bergin was referred by WorkCover to Dr Satish Karunakaran. Dr Karunakaran recommended that Begin receive counselling by a psychologist. Subsequently Begin saw a psychologist for a number of sessions between April 2011 and November 2011.
[22] While Begin’s attendance record while employed at the Townsville Hospital
attracted significant attention during the trial, the evidence establishing the nature, extent and timing of the absences from work lacked precision. The evidence about
Bergin’s absences was either adduced in the cross-examination of Bergin or in the
examination in chief of Carrey. There is no dispute about the quantum of the absences, but the evidence did not in all instances establish when the absences occurred, the duration of each absence, how many consecutive days were taken, and the reason for each absence.
[23] It is accepted that Begin was absent from work on sick leave or related leave for more than 40 days in the 2009-10 year and for the same amount of time in the 2010- 11 year. As I understood the evidence, during his employment with the Townsville Hospital, Bergin was absence from work on account of illness during the following periods:
2008 – 11 days off work from 15 September 2008 to 1 October 2008
2009 – 40 days off work (no dates specified)2010 – 40 days off work including 32 days from 13 March 2010 and 29 April 2010
2011 - 40 days off work including 28 days from 9 March 2011 and 20 April 2010
[24] The matter of interest was the extent and frequency of absences attributable to mental illness. The attribution is clear in respect to the six week absence from work in 2011, and also to a lengthy period off work in 2006, but not clear outside of these
events. Bergin’s absence from work in the first half of 2011 was supported by
medical certificates issued by Dr Germali which stated that the absence was due to
an illness arising from stress or anxiety at work relating to Bergin’s dispute with
Watts. However no information was provided in respect to any other absences taken in the 2011 calendar year. While reasons for the absences in 2009 or 2010 were not provided by the employer, there was some evidence supporting a conclusion that
Bergin’s stomach condition may have been a significant or substantial cause of
absences in 2009 and 2010.
Medical Evidence
[25] Bergin had been a patient of Dr Pawar since 25 May 2011. He saw Dr Pawar on four or five occasions before the consultation on 1 February 2012. Dr Pawar said that prior to 1 February 2012, Bergin had not consulted him in connection with
anxiety or depression issues. Dr Pawar considered that Bergin’s health was
"absolutely normal" between May 2011 and 1 February 2012. Dr Pawar expressed the view that the 20 January work related incident disabled Bergin and had a negative impact on his mental health. He formed the impression from consultations after the incident that the "incident was bothering him very significantly with an extremely high level of anxiety and also some symptoms of depression" (T2-4). Dr Pawar conceded that his opinion was given in a context where he had not been fully
informed about Bergin’s history of mental illness, however he was aware that Begin
was taking anti-depressant medication and that he had prescribed this medication
since 19 July 2012.[26] Dr Caniato assessed Bergin on 5 March 2012 and his report arising from this assessment is in the evidence as Exhibit 6. Dr Caniato diagnosed Bergin with a major depressive disorder. Having arrived at this diagnosis Dr Caniato concluded
that the 20 January incident at work was not significant enough to cause Bergin’s
disorder. In his report at page 6 he said that incident itself could be considered of reasonably minor severity, and not the nature of which could cause Post Traumatic
Stress Disorder or serious psychiatric sequelae. He opined that Bergin’s reaction to
the incident at work was a reflection of his reasonably fragile mental state and ongoing problems with depression. His oral testimony on the matter was recorded at T2-42:
"Is it your opinion that he suffered any psychological condition as a result of
the incident on 20 January 2012?---No, it’s not.
Are you able to explain the basis on which you come to that conclusion?---
Well, in regards to a review of all the information, I conclude that there hasn’t
been any change in Mr Bergin’s symptoms or presentation in response to that
incident. There’s been no temporal change in his symptoms, that is, the
symptoms are no different before than they are after the injury. There’s been
no improvement in his symptoms with time since the injury. So there’s no
natural history that would indicate that – that there was symptoms which occurred following the injury and which was then improved. There’s no
plausible aetiological link between the injury and his symptoms. That’s to say
the injury as described by Mr Bersin – Bergin would not reasonably cause the
symptomatology as described, and therefore I conclude that there is no aetiological link between the symptoms as described by Mr Bergin and the
incident, and the collateral information as provided by other reports that’s
been provided to me supports that conclusion. "
[27] At page 2 of the report Dr Caniato lists the information relied on by him in arriving at his conclusions. Apart from the examination of Bergin on 5 March 2012 and the history provided by Bergin at the time, Dr Caniato took into account in formulating his opinion a psychiatric report prepared by a Dr McIntyre dated 31 May 2007, various WorkCover medical certificates, and what I understand to be a decision of WorkCover dated 6 May 2011 presumably given in response to an earlier claim lodged by Bergin in 2011. During his oral testimony Dr Caniato also referred to assessments of Bergin which were completed by a Dr Karunakaran.
[28] Dr Likely assessed Bergin at the request of Bergin’s lawyers on 15 August 2012.
His report on the assessment is in the evidence as Exhibit 4. In the preparation of his report Dr Likely had regard to the decisions of WorkCover and Q-COMP on
Bergin’s claim and the report of Dr Caniato dated 19 March 2012. In his report Dr
Likely noted that Bergin had told him that he had a history of contact with psychiatric services since he took an overdose of paracetamol approximately 12 years earlier in the context of a relationship breakdown. At the time Bergin was seen by a visiting psychiatrist at the Ayr Hospital. It was then that he started taking anti-depressants and he also attended on a clinical psychologists over a period of time. Bergin told Dr Likely that he had remained on anti-depressants since the suicide attempt and that at the time of the accident on 20 January 2012 the medication was working well and that for the preceding two years he had been "unencumbered by any symptoms of either disturbance in his mood or any symptoms of anxiety". Bergin reported on a previous WorkCover claim arising from workplace conflict which led to a 2007 assessment by a Dr McIntrye.
[29] In his report Dr Likely entered a diagnosis of injury in the following terms:
"I believe that Mr Bergin has in the past suffered from Major Depressive Disorder but this appears to have been in full remission for a significant period of time (i.e. at least five years). I believe that the work related accident on 20 January 2012 has led to him developing a psychological injury which is best described as being an Adjustment Disorder with anxious mood. "
[30] However at the commencement of his evidence Dr Likely resiled from this
conclusion when he was apprised of Bergin’s recent history of psychological care.
He accepted that Bergin may have been mentally unwell prior to 20 January 2012 and said at T1-49 that:
"… even though I was aware that he suffers from – he suffers from episodes of
detachment in the past, the fact that you've just informed me that he was
actually seeking treatment – I don’t know for what – but for some
psychological matter at the time of the – or just prior to the accident on the
20th of January 2012 means that I would then consider the adjustment disorder
to be an aggravation of the pre-existing injury.
[31] It follows from this evidence that the appeal is to be determined by reference to
whether the 20 January 2012 workplace incident caused an aggravation of Bergin’s
pre-existing psychological condition. While Dr Caniato had not assessed Bergin prior to 20 January 2012 he was clear in his evidence that he did not believe that Bergin had suffered a fresh injury arising from the workplace incident on 20 January 2012 (T2-45):
"What about in relation to the history you were given?---Well, in terms of the
history that I was – I did not come to that conclusion either within my report.
So I did not feel there was evidence for any fresh injury based on the totality
of the history and the nature of the stressor being described. So I didn’t feel
the stressor as described to me represented a fresh injury. "
[32] Further, it was Dr Caniato’s opinion that Bergin’s chronic history of anxiety and
depression diminished the prospect of an aggravation caused by the trolley incident. The view was to the effect that Bergin was depressed prior to the incident and after
the incident, and that the 20 January event did not significantly alter Bergin’s mental
state. Dr Caniato explained his position in the following terms (T2-52):
"Well, what do you say, then, Doctor? Was he not susceptible to injury?
What’s the situation?---Look, in terms of my assessment, my view was that
Mr Bergin’s mental state was no different before or after the injury and that by
the time he had put in a claim for this WorkCover, he had already had a
previous WorkCover claim rejected a short – approximately 11 months earlier
and that his mental state was essentially unchanged. So my belief is that his
mental state was not altered by the incident of dropping a trolley but had been
unchanged over a period of at least 12 months preceding and 12 months after
the [indistinct] "
[33] Dr Likely expressed a contrary view and defended his position under cross- examination (T1-63):
"Well, can you just explain to me then – you said in examination that, having found out about Mr Bergin’s past history that, in fact, his adjustment disorder
was really an aggravation of a previous condition. How does that make sense?- --My formulation was that Mr Bergin had suffered from Major Depressive Disorder (recurrent), however, I felt that when I examined Mr Bergin, at least, the cluster of symptoms which he was describing after the stretcher incident
were mainly anxiety symptoms, so – there being a – there being a significance
between anxiety symptoms and disturbance in mood, I felt that the adjustment disorder with anxious mood was the consequence of the stretcher incident,
rather than being a recurrence of Mr Bergin’s major stress disorder. At any
rate, it would appear to me that the accident in January 2012 caused significant
decompensation in Mr Bergin’s mental health.
And that’s based solely on Mr Bergin’s own recording, isn’t it?---That’s
correct.
Okay. And is that – does that remain your diagnosis or have you now reviewed
your opinion in relation to the diagnosis at that time?---No. No, it remains my
diagnosis with the proviso that you correctly pointed out that Mr Berginappears to be somewhat of an unreliable witness. "
Pre-existing Condition
[34] It was Bergin’s evidence that prior to the trolley collapse he was in sound mental
condition and that his capacity or wellness was demonstrated by the fact that he had made application the previous November to commence a nursing degree at the
Central Queensland University. While Dr Pawar was not familiar with Begin’s detailed history of mental illness, he did not discern anything abnormal in Bergin’s
presentation prior to 1 February 2012. However on and after 1 February 2012 he formed the view that the 20 January incident was bothering Bergin very significantly and contributing to high levels of anxiety and symptoms of depression.
[35] While the evidence indicated that Bergin had been receiving counselling from a psychologist over a period of time in 2011, no information was provided about how many sessions Bergin undertook, when these sessions were held, or what opinion the
psychologist had formed about Bergin’s state of mind.
[36] Carrey’s evidence about Bergin’s performance and demeanour in the workplace
prior to the January 20 incident was relevant. Carrey declined to accept the proposition that Bergin displayed an anxious and fragile disposition in the
workplace. Carrey’s evidence at T2-34 was to the effect that in the second half of
2011 Bergin would tell him in informal exchanges that he was fine and that despite his attendance record he regarded him as an average worker. It was his evidence
that Bergin’s contribution relative to other workers was not the best but nor was it
the worst. He said he had no complaints about Bergin’s work and that he was
getting through his daily tasks.
[37] While Dr Caniato had not seen Bergin before the 20 January incident he had access
to reports on Bergin’s condition prepared by Dr McIntyre in 2007 and by
WorkCover in 2011 arising from WorkCover claims made in 2006 and 2011. Prior to the hearing he had also accessed reports prepared by Dr Karunakaran apparently in both 2011 and 2012. However Dr Karunakaran was not called to give evidence and his reports were not tendered. I am reluctant therefore to accept any view formed by either Dr Caniato or Dr Likely based on the reports of Dr Karunakaran.
In the circumstances I proceed on the basis that Dr Caniato’s opinion was formed in
the absence of any information about Bergin’s mental condition after May or June
2011. In dealing with Bergin’s apparently normal presentation at work prior to the 20 June incident, Dr Caniato took the view that a person’s mental psychopathology
is dictated by psychiatric assessment and the level of the symptoms, not by
attendance or non-attendance at work. Dr Caniato’s opinion was that Bergin’s symptoms had not changed as a result of the incident and that Bergin’s
psychological condition remained unaffected by the 20 January incident.
[38] The respondents pressed the case that Bergin’s absences from work were indicative
of a continuing psychological condition and that the evidence about absences
contradicted the appellant’s assertion that Bergin was well or of stable mental health
for most of 2011 and in the period immediately preceding the trolley incident. However while the evidence establishes that Bergin was off work due to a psychological injury for 6 weeks in March and April 2011, it does not go beyond this.
[39] Dr Likely only saw Bergin on the one occasion in August 2012. His evidence at T1- 68 was that the 20 January incident caused a "step change downwards in Mr
Bergin’s condition, and we can argue about the semantics of the diagnostic label, but
it’s clear that it caused a deterioration in his psychological health." While Dr Likely
conceded in his evidence that a complete history of Bergin’s mental health and his
attendance record at work might support a conclusion that Bergin was mentally unwell before the incident, the concession was extracted by referring inter alia to absences from work and to the fact that Bergin had been receiving counselling in the second half of 2011. I am not inclined to attach significant weight to the concession given that no evidence was adduced in respect to the counselling and the evidence in respect to absences from work caused by mental illness was limited to a period off work in early 2011.
[40] Notwithstanding the weight to be attached to the concession, Dr Likely did not resile from his conclusion that the 20 January incident aggravated a pre-existing condition
and that the incident caused a deterioration in Bergin’s mental health.
Conclusion
[41] The respondents submitted that findings of credit adverse to Bergin should be made. It was asserted that Bergin evidence should be regarded as evasive and featured a
selective recall of events and an implausible failure of memory. However I don’t think a lot swings on Bergin’s evidence because most of the determinative facts
were adduced through reports and other witnesses. An exception to this view relates
to a consideration of the relevance of Bergin’s relationship breakup which followed
soon after the 20 January incident and before he was assessed by Dr Caniato. The question to be answered is whether the injury diagnosed by Dr Caniato may be
better explained by the collapse in Bergin’s relationship rather than the 20 January
incident.
[42] The relationship break-down was not referenced in Dr Caniato’s report, but did attract brief mention in Dr Likely’s report where it was noted that the relationship
collapsed owing to Bergin’s social isolation. In terms of conclusions, neither Dr
Caniato nor Dr Likely attributed Bergin’s injury to the relationship breakdown or
described it as a factor. The matter received only limited attention during the witness evidence. When the issue was put to Bergin in cross examination he denied that the relationship breakdown negatively impacted his mental health. Dr Likely gave qualified acceptance (T1-67) to a proposition that it might be inferred that
Bergin’s suicidal ideation was a result of his relationship breakdown rather than the
workplace incident. that it was possible to draw an inference and observed that previous behaviour is the best indicator of future behaviour.
[43] In my view while the evidence could support an inference that the break-up may
have been a factor in the deterioration in Bergin’s mental health, it does not go much
further than this and the same evidence does not preclude a finding that the
workplace incident was a significant contributing factor to Bergin’s depressive
disorder.
[44] Bergin’s history of depression and anxiety was not in dispute. What was in
contention was whether the 20 January incident caused any alteration to his psychological condition sufficient to found a conclusion that the incident aggravated his pre-existing condition. Competing opinions on the subject were expressed in the oral testimony and written reports of Dr Caniato and Dr Likely. Both opinions were subject to criticism in a context where a conclusion about whose evidence is to be preferred could be determinative in a balance of probabilities finding about whether
the necessary association between Bergin’s employment and the injury could be
established.
[45] The respondents criticised Dr Likely’s opinion on a number of grounds. It was
asserted that he did not engage with Bergin until well after 20 January 2012, that his contact with Bergin was limited to a single two hour assessment, that his opinion was based on an incomplete history, and that his conclusion was based on an assumption that Begin was free of symptoms for up to two years prior to 20 January
2012. On the other hand Dr Caniato was fully apprised of Bergin’s history and
assessed Bergin within six weeks of the 20 January incident. As it transpired, when
fully informed of Bergin’s history, Dr Likely altered his opinion, conceded that
Bergin was an unreliable historian, accepted that he may have been mentally unwell prior to 20 January, but nevertheless maintained that the 20 January incident had a
negative and measurable impact on Bergin’s mental health and classified Bergin’s
injury as an aggravation.
[46] Notwithstanding Dr Likely’s concession that Bergin had provided an incomplete
history, his report dated 23 August 2012 disclosed that Bergin did give a reasonable overview of his history of mental illness. According to the report he told Dr Likely that he had a history of contact with psychiatric services since the year 2000 when he took an overdose of paracetamol in the context of a relationship breakdown; that he was seen by a visiting psychiatrist at the Ayr Hospital and had attended on a clinical psychologists over a period of time and that he had been taking anti- depressants ever since. Further he told Dr Likely that his condition had been generally stable with the exception of an incident which occurred in 2007 where he had come into friction with a senior staff member and arising from which he had seen a psychiatrist (Dr McIntrye) and had made a WorkCover claim. Given these disclosures, it appears that the only significant omission from his psychological history was a reference to his unsuccessful 2011 WorkCover claim stemming from his dispute with a co-worker.
While Dr Caniato’s report was formulated in the context of a more complete history
than that available to Dr Likely, it is relevant that Dr Caniato was not familiar with
Begin’s recent work record which was the subject of Carrey’s testimony in the
proceedings, nor had he reviewed Dr Pawar’s medical records or been apprised of
Dr Pawar’s views on Bergin’s mental condition before and after the incident.
Further Dr Caniato had not seen Bergin before 20 January 2012 and his opinion
about Bergin’s pre-existing condition was based in part on reports which were not
tendered, meaning that the basis for Dr Caniato’s opinion could not be fully tested or
evaluated.
[48] Further, in arriving at his primary opinion Dr Caniato may have set a higher test than
that required to be satisfied by the Commission. Dr Caniato’s primary opinion was
to the effect that he did not consider that the 20 January incident was significant enough to cause post-traumatic stress or a major depressive illness. As Dr Caniato conceded at T2-52, a post traumatic stress disorder is a different condition to an aggravation of a pre-existing psychiatric injury. Further the question to be answered by the Commission is not whether the incident caused the injury or aggravation, but whether it was a significant contributing factor. An additional consideration is
whether Dr Caniato’s view that the 20 January incident should be regarded as "a
reasonably ordinary or uneventful occurrence that one could reasonably expect to occur in that sort of employment", should be accepted. It was not accepted by Dr Likely who said in his evidence at T1-71 that the incident was not trivial incident and that he regarded it as "a very serious incident".
[49] The respondents argued that Bergin’s attendance record while employed at the
Townsville Hospital supported a conclusion that Bergin was suffering from a chronic psychological illness, however I think the respondents can only take this proposition so far. In my view the absences from work, considered in isolation, do not establish that Bergin was psychologically unstable or unwell throughout the
course of his employment with the Townsville Hospital. Further, Carrey’s lay evidence tended to discount the proposition that Bergin’s psychological state was
fragile or unstable during the period 2009 to 2011 when Bergin had a reporting
relationship to him.[50] The respondents argued that it was Bergin’s disposition to descend into mental
illness that was the major contributing factor to the development of his depressive disorder, not the single workplace incident that occurred on 20 January 2012.
Bergin’s depression was chronic and ongoing and it was unlikely that this pattern of
depression would have been influenced in any significant way by the incident of 20
January 2012. Bergin’s absence from work following the incident should be
considered part of a general pattern which featured regular absences from the
workplace in response to routine workplace events.[51] The respondents also submitted that this was a case where the employment was not the real or effective cause of the injury but was merely the setting within which the
unravelling of Bergin’s fragile mental state occurred. The submission advanced was
that a consideration of Bergin’s employment history in conjunction with Dr Caniato’s conclusions on the medical history, points towards a balance of
probabilities finding adverse to the appellant.
[52] The appellant however took a more direct and uncomplicated view of the evidence and asserted that the unchallenged facts must inevitably lead to a conclusion that the appellant has sustained a workplace injury within the terms of s 32(1) of the Act. In so submitting the appellant relied on the following facts:
Prior to 20 January 2012 the appellant was performing the duties of his
employment without restriction and was at that time mentally stable; An incident occurred on 20 January 2012 in the course of the appellant’s employment; The essential details of the incident of 20 January 2012 are not in
dispute; The incident was reported in a timely fashion; The incident was the subject of an illness which occasioned attendance
on a medical practitioner in a timely fashion; The incident was the subject of certification by the general practitioner
at that time; and Following the incident the appellant was certified as having sustained a psychiatric injury which rendered him unable to further perform his employment.
[53] On balance, I am persuaded to accept the appellant’s view. While Bergin struggled
with a long standing history of mental illness, and was vulnerable to mental illness, he had functioned adequately during his period of employment with the Townsville Hospital. While his attendance record at work was poor, on the evidence, only the six week absence in the first half of 2011 was attributable to mental illness prior to
his decompensation in 2012. I do not quarrel with Dr Caniato’s opinion that the 20
January 2012 incident could not have caused the major depressive disorder that he diagnosed on 5 March 2012. However I am unable to accept his view that the issues arising from the 20 January incident could not have significantly contributed to the aggravation of a pre-existing mental illness. In this respect I prefer the evidence of Dr Likely and Dr Pawar. In my view the evidence supports a finding that the 20 January incident more probably than not would have been a cause of anxiety and some stress for Bergin. In the absence of supporting evidence from the employer, I
don’t accept Dr Caniato’s view that the incident, in the context of the day to day
operations of a hospital and health service, could be characterised as routine or
insignificant particularly when Bergin’s history of mental illness was taken into
account.
[54] Additionally, subsequent events added to whatever stress or anxiety was caused by the incident itself. In the week following the incident Bergin was informed that the patient had made a complaint and he also became aware that the patient had been readmitted for tests. In a context where Bergin was likely to blame for the trolley collapse, it seems reasonable to me that these circumstances would weigh on the mind of any person, and would weigh more heavily on the mind of someone who had a history of mental illness and who was susceptible to stress and criticism. In this regard I accept the opinion of Dr Likely and Dr Pawar that the incident caused a
significant deterioration in Bergin’s psychological state and that this deterioration
was substantial enough to support a conclusion that the 20 January incident aggravated a pre-existing psychological condition. It follows that the aggravation of
Bergin’s pre-existing injury arose out of or in the course of his employment in
circumstances where his employment was a significant contributing factor to the
aggravation.[55] The appeal is allowed and the decision of the regulator dated 24 May 2012 is set
aside. Bergin’s application for compensation dated 6 February 2012 is one for
acceptance. The matter of costs is reserved.
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