Cadbury Schweppes Pty Ltd v Davis
[2011] NSWWCCPD 4
•31 January 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 | ||||
| APPELLANT: | Cadbury Schweppes Pty Ltd | ||||
| RESPONDENT: | Deanne Davis | ||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-6305/10 | ||||
| ARBITRATOR: | Ms J Connelly | ||||
| DATE OF ARBITRATOR’S DECISION: | 18 October 2010 | ||||
| DATE OF APPEAL DECISION: | 31 January 2011 | ||||
| SUBJECT MATTER OF DECISION: | Personal injury; s 4 of the Workers Compensation Act 1987; whether psychological condition resulted from physical injuries; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; unsatisfactory preparation by worker’s solicitors; unsatisfactory Reply by employer’s solicitors | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |||
| Respondent: | P K Simpson & Co | ||||
ORDERS MADE ON APPEAL: | Paragraphs 1 and 2 of the Arbitrator’s findings in the Certificate of Determination dated 18 October 2010 are revoked and the following findings made in their place: “1. As a result of her injuries on 23 August 2000, the applicant developed a psychological condition, namely chronic adjustment disorder with mixed anxiety and depressed mood.” All other findings and orders in the Certificate of Determination dated 18 October 2010 are confirmed. | ||||
BACKGROUND
The respondent worker, Ms Davis, started work with the appellant employer, Cadbury Schweppes Pty Ltd (Cadbury), as a sales administration clerk in October 1998. She injured her back and neck when she fell from a chair in the course of her employment on 23 August 2000. At the time of the fall, she was 36 weeks pregnant with her first child.
She returned to work the following day, but left after one hour because she was unable to sit due to pain. She returned to work on 1 September 2000 and worked with pain until she took planned maternity leave on 10 September 2000. She gave birth on 25 September 2000.
While on maternity leave, Ms Davis attempted one day’s temporary office work with a different employer, but was unable to cope with the pain. She resigned her employment with Cadbury in 2001 and remained unemployed until 2003, when she fell pregnant and sought part-time employment, which she obtained as a medical secretary at Primary Health Care Medical Centre. She continued that work until September 2008.
In proceedings commenced in the Commission in 2006, Ms Davis sought weekly compensation from 23 August 2000 to date and continuing, and lump sum compensation. She described her injuries as “neck, back, left leg, sexual organs and anxiety and/or depression”. Cadbury settled this claim on 9 October 2006 on the basis that the claim for weekly compensation be discontinued and the claim for lump sum compensation be referred to an Approved Medical Specialist (AMS). Cadbury agreed to make voluntary payments of weekly compensation at follows:
(a) $250 per week from 1 December 2000 to 25 November 2003;
(b) $250 per week from 1 March 2004 to 28 May 2006;
(c) $300 per week from 29 May 2006 to 4 October 2006, and
(d) $300 per week from 5 October 2006 and continuing.
On 30 November 2006, Dr Lethlean, AMS, issued a Medical Assessment Certificate (MAC) in which he took a history that Ms Davis reported severe and persisting lumbosacral pain following her fall on 23 August 2000. There appeared to have been a good response to early analgesia, but she had persisting pain and restriction. Features of left L5 nerve root involvement developed in late 2005, with sexual difficulties subsequently. There was also cervical pain/left shoulder pain with the early development of depression. A CT scan dated 11 January 2006 revealed a prominent left disc herniation at L4/5.
Dr Lethlean assessed Ms Davis to have the following losses and impairments as a result of the physical injuries received in the fall:
(a) 15 per cent loss of efficient use of the left leg at or above the knee;
(b) 20 per cent loss of use of sexual organs;
(c) 4 per cent permanent impairment of the neck, and
(d) 20 per cent permanent impairment of the back.
On 22 December 2006, the parties settled the claim for lump sum compensation for the amounts appropriate for the assessments by Dr Lethlean, plus $15,000 for pain and suffering.
In October 2008, in a letter that is not in evidence, Ms Davis’s solicitors claimed compensation for psychological injuries (anxiety and depression) that had allegedly resulted from her fall. In a s 74 notice dated 2 December 2008, Cadbury’s insurer, Allianz Australia Workers Compensation (NSW) Limited (Allianz), disputed the claim on the grounds that:
(a) Ms Davis had not sustained the injury alleged;
(b) employment was not a substantial contributing factor to the injury;
(c) Ms Davis was not incapacitated;
(d) the claim was not compensable because Ms Davis “alleged the psychological injury was a result of Allianz and not [her] employer”;
(e) the diagnosis of anxiety and depression did “not relate to [Ms Davis’s] work injury”, and
(f) the claim form dated 11 September 2000 only alleged injury to the lower back.
On 22 January 2009, Allianz served Ms Davis with a notice of intention to cease weekly compensation payments under s 52A of the Workers Compensation Act 1987 (the 1987 Act) on 6 March 2009 on the grounds that, having been partially incapacitated for 104 weeks, as at the date of the notice, Ms Davis:
(a) was not seeking suitable employment;
(b) had unreasonably refused to have an assessment of her employment prospects;
(c) unreasonably refused to cooperate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return to work program, and
(d) had not provided information regarding her current employment status.
In 2009, Ms Davis sought a determination of whether she attained the 15 per cent whole person impairment threshold required to bring a claim for common law damages. A second AMS, Dr Beer, issued a Medical Assessment Certificate (MAC) on 30 June 2009 certifying her to have a whole person impairment of 11 per cent.
On 10 November 2009, Ms Davis claimed weekly compensation from 1 January 2009, additional lump sum compensation for her back, neck and sexual organs, together with compensation for a 10 per cent loss of bowel function and 13 per cent permanent loss of efficient use of the left arm at or above the elbow. The loss of bowel function related to symptoms that developed because of increased use of analgesics due to Ms Davis’s physical injuries. She also made a further claim that she had attained the 15 per cent threshold required to entitle her to claim common law damages.
Allianz disputed this claim in a s 74 notice dated 21 July 2010 on the grounds that:
(a) the claim for weekly compensation had been denied on the grounds set out in the s 52A notice dated 22 January 2009;
(b) Ms Davis had not injured her left arm;
(c) Ms Davis had no entitlement to additional lump sum compensation, and
(d) Ms Davis had not received a psychological injury and that claim had been disputed in a s 74 notice dated 2 December 2008.
In an Application to Resolve a Dispute (the Application) registered in the Commission on 6 August 2010, Ms Davis claimed weekly compensation in the sum of $850 from 1 January 2009 to date and continuing, lump sum compensation in respect of additional impairments of the neck and back, permanent loss of efficient use of the left arm at or above the elbow and permanent loss of use of bowel function. She also sought a referral for medical assessment by an AMS to determine if she satisfied the threshold for work injury damages and a general order for the payment of hospital and medical expenses.
Cadbury’s solicitors filed a Reply on 27 August 2010 in which they, among other things, denied injury, incapacity and Ms Davis’s entitlement to lump sum compensation. The wide-ranging terms of the Reply were unsatisfactory. Solicitors are reminded, yet again, that blanket denials of liability are unacceptable because they do not comply with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). An insurer has a statutory obligation to precisely identify in a s 74 notice why it disputes liability. Leave is required before an insurer will be permitted to dispute issues not identified in that notice. At the arbitration, counsel for Cadbury did not submit that Ms Davis had not been injured on 23 August 2000 and did not seek leave to dispute matters not identified in the s 74 notices. Given the long history of this matter, and given that the insurer had already paid lump sum compensation to Ms Davis for her physical injuries, it was not appropriate for the employer’s solicitors to file a Reply purporting to dispute that Ms Davis had received an injury on 23 August 2000.
The Commission listed the matter for conciliation and arbitration on 24 September 2010. By consent, Ms Davis discontinued the “claim of injury to the left arm” and amended the claim for weekly compensation to claim from 7 March 2009. The Arbitrator delivered an oral decision in which she found that Ms Davis “suffered an injury to her bowel function on 23/8/00 within the meaning of s 4 of the Workers Compensation Act 1987” and that her employment was a substantial contributing factor to the injury. The Arbitrator remitted to the Registrar, for referral to an AMS, the work injury damages threshold assessment, the claim for additional lump sum compensation for the neck and back, and the claim for permanent loss of use of bowel function. She listed the claim for weekly compensation, s 60 expenses, (and for the alleged psychological injury) for hearing on 14 October 2010. The Commission issued a Certificate of Determination on 29 September 2010 setting out the Arbitrator’s orders and findings. Cadbury has not challenged those orders.
On 14 October 2010, the Arbitrator heard lengthy submissions from both sides, but no oral evidence. She delivered an oral decision on 15 October 2010 in which she found that Ms Davis had suffered a psychological injury on 23 August 2000 and that her employment was a substantial contributing factor to that injury. She found that Ms Davis had been totally unfit for work from 30 October 2008 to 30 April 2009 and partially incapacitated thereafter. As the worker was totally unfit for work on the date the insurer issued the s 52A notice on 22 January 2009, the Arbitrator found, consistent with an appropriate concession by Cadbury’s counsel, that the insurer had no right to stop payments under that section. The Commission issued a Certificate of Determination on 18 October 2010 in the following terms:
“The determination of the Commission in this matter is as follows:
FINDINGS
1. I find that the applicant suffered a psychological injury on 23/8/00 within the meaning of s4 of the Workers Compensation Act 1987 (the “Act”).
2. Pursuant to s9A of the Act I find that the applicant’s employment with the respondent was a substantial contributing factor to the injury.
3. I find that the applicant was totally incapacitated for work between 30/10/08 and 30/4/09.
4. I find the applicant partially incapacitated for work from 1/5/09 to date and continuing with the capacity to work 20 hours per week.
ORDERS
1. Pursuant to s37 of the Act the respondent is to pay the applicant weekly compensation at the maximum statutory rate for a worker with 2 dependant [sic] children for the period 7/3/09 to 30/4/09.
2. Pursuant to s40 of the Act the respondent is to pay the applicant weekly compensation as follows:
3. 1/5/09 to 30/6/09 @ $442.21 per week;
4. 1/7/09 to 30/6/10 @ $451.08; and
5. 1/7/10 to date and continuing @ $480.60 per week.
6. The respondent is to pay the applicant’s outstanding and continuing s60 expenses, including treatment for the applicant’s psychological condition, upon production of accounts and/or receipts.
7. I certify this matter as complex and order an uplift in the costs payable for both sides of 25%.
8. I certify that each day of conciliation/arbitration should be treated as a separate event in accordance with Schedule 6.”
In an appeal filed on 12 November 2010, Cadbury seeks leave to challenge the Arbitrator’s findings and determinations in the Certificate of Determination issued on 18 October 2010.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
Monetary threshold
It is not disputed that the monetary thresholds in s 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Ms Davis suffered a psychological injury on 23 August 2000 within the meaning of s 4 of the 1987 Act (psychological injury);
(b) finding that the employment was a substantial contributing factor to Ms Davis’s alleged psychological injury (psychological injury);
(c) finding that the combination of the psychological condition and the orthopaedic injuries resulted in Ms Davis being totally incapacitated between 30 October 2008 and 30 April 2009 (total incapacity);
(d) failing to give adequate reasons for her decision (reasons), and
(e) failing to consider, or properly consider, the provisions of s 52A when determining the worker’s entitlement to weekly compensation (s 52A).
SUBMISSIONS, DISCUSSION AND FINDINGS
Psychological injury
The Arbitrator wrongly identified the issue for her to determine to be “whether or not the applicant’s psychological condition is an injury within the meaning of section 4 and section 9A of the [1987] Act” (T1.27 15 October 2010). She said that there was no dispute that Ms Davis suffered from a psychological condition, namely adjustment disorder with mixed anxiety and depressed mood.
She found (at T4.38):
“taking all of that into account the chain of causation is unbroken in relation to her psychological condition, and it is directly linked to the injury on the 23rd of August 2000. She is reacting to life changing circumstances. I say that is understandable and I say, on this evidence, I am satisfied it relates to the original injury.
I accept the Applicant suffered a psychological injury pursuant to section 4 of the Act and pursuant to section 9A employment was a substantial contributor to injuries sustained.”
Cadbury has submitted that there is no evidence that Ms Davis suffered a psychological injury in the course of her employment with it and that her employment has not been a substantial contributing factor to any such injury. It referred to the report of injury form only referring to Ms Davis suffering a back injury and to the worker’s recurrence form dated 8 June 2006 not referring to a psychological injury.
Both Cadbury’s submissions and the Arbitrator’s finding (that Ms Davis suffered a psychological injury pursuant to s 4 of the 1987 Act) demonstrate a fundamental misunderstanding of workers compensation principles. That misunderstanding started with the initial notice of claim that (apparently) alleged that Ms Davis had received a psychological injury on 23 August 2000 and continued in the pleadings, which repeated that allegation.
However, at the arbitration, Ms Davis’s counsel made it clear that, consistent with the authorities, his case was that Ms Davis’s psychological condition resulted from her undisputed physical injuries on 23 August 2000 (T14.19 14 October 2010). He did not submit that, on 23 August 2000, Ms Davis had received a psychological injury within the meaning of s 4. Counsel for Cadbury merely submitted that the Arbitrator would not find that Ms Davis had suffered a psychological injury as at October 2008 simply because Ms Davis’s treating doctor said so (T42.43 14 October 2010). That submission ignored the substantial body of medical and other evidence that, as a result of her physical injuries, Ms Davis developed a psychological condition.
Notwithstanding the all-embracing terms of the Reply, it is not disputed that Ms Davis suffered significant injuries to her spine when she fell on 23 August 2000. Though liability accrues when the injury occurs (Orica Ltd v CGU Insurance Ltd 1 DDCR 87; [2003] NSWCA 331 at [21]), compensation is not payable for the mere receipt of an injury. It is payable for the consequences that result from the injury. This follows from the terms of the legislation. A worker who has received “an injury” shall receive compensation from his or her employer “in accordance with” the 1987 Act (s 9 of the 1987 Act). If total or partial incapacity for work “results from an injury”, the compensation payable by the employer shall include a weekly payment during the incapacity (s 33 of the 1987 Act). If, “as a result of an injury received by a worker”, it is reasonably necessary that any hospital or medical treatment be given to the worker, the worker’s employer is liable to pay the cost of that treatment (s 60 of the 1987 Act).
The issue is not whether Ms Davis received a “psychological injury” on 23 August 2000, but whether her incapacity and/or need for hospital and medical treatment have resulted from the physical injuries received on that day. As Ms Davis’s psychological condition is not a s 4 “personal injury”, there is no need to satisfy the test in that section. Nor is there any need for employment to be a substantial contributing factor to her psychological condition. Employment does not have to be a substantial contributing factor to the incapacity or need for medical treatment (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725). The issue is a straightforward causation dispute.
Counsel for Ms Davis relied on Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). The worker was a truck driver. He injured his back on 30 July 1981 while climbing up and down from his truck. He stopped work in June 1983. In September 1985, his general practitioner, Dr Furey, reported that the worker was:
“very distressed because of the delay in reaching a solution to his back difficulty. He felt that, if he did anything, people might be watching him. He was very upset. He was complaining of a knot in the stomach. He was depressed and he was placed on a tranquilliser.” (at 453-4)
In May 1986, Dr Furey described the worker as “very severely depressed”. His personality was being affected by the “chronicity of his condition”. In July 1987, Dr Furey advised the worker to go on a diet as his weight had increased because of his inactivity. In April 1988, the worker told Dr Furey that he had a lot of suicidal thoughts. Dr Furey felt that the length of time in the compensation system was the “root cause of all this”. In March 1989, the worker’s back continued to give him excessive pain, radiating down his leg.
In March 1991, the worker was again found to be “excessively depressed, anxious, still having problems at home and problems with his back”. He had a sudden, unexplained exacerbation of pain in November 1991. A CT scan on 6 November 1991 revealed degenerative disc disease, with a prolapse at L4/5 and significant degeneration at L5/S1. There had been a gross deterioration since the scan taken in April 1982.
On 16 March 1992, the worker received a letter from the insurer advising that compensation payments would cease from 29 March 1992. The worker saw Dr Furey on 19 May 1992 severely depressed. He said he did not have enough money to pay the doctor and that he would have to sell his house. He was worried and anxious about his future. On 8 June 1992, the worker died of a heart attack.
Dr Furey stated that, while the worker had antecedent myocardial disease, it was exacerbated by the “depressive and anxiety situation in which he found himself, as a result of the lengthy and protracted workers’ compensation situation”. He felt that the worker’s death had been accelerated by the “stress generated by the cessation of compensation payments and the peculiarities of the workers’ compensation system”. The heart attack had happened much earlier than the worker should have had it and was “totally related to his back injury and the failure to reach a satisfactory conclusion within a ten year period”.
The worker’s widow made a claim for compensation benefits, which the insurer denied. She relied on evidence from Dr Furey and Dr Schiller, physician, who concluded that the emotional stress and depression the worker experienced in the weeks leading up to his death, which resulted from the cessation of compensation payments and consequent financial crisis in which he found himself, contributed to his death from a heart attack. Dr Schiller added that the worker’s sedentary lifestyle due to his back injury and unemployment also contributed to the heart attack. The employer called no evidence.
The test of causation in a claim for death benefits under the 1987 Act is the same as in a claim for weekly compensation: if the death “results from an injury”, compensation is payable (s 25 of the 1987 Act).
The trial judge found that the deceased “suffered injury in the course of his employment on 30 July 1981; namely, injury to his lower back” (emphasis added) and that “[a]s a result thereof the deceased suffered myocardial infarction from the effects of which, on 8 June 1992, he died” (at 457E). The judge did not find that the worker suffered a psychological injury or that the heart attack was a personal injury.
The employer appealed. It argued that the prolonged incapacity, immobility, sedentary lifestyle, increased obesity, stress and anxiety, depression, and acute stress when compensation payments ceased were all “mere predisposing factors” that were not “causative in the relevant sense that it was not shown that the death ‘resulted from’ any of them, either individually or in conjunction” (at 460F).
Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at 462E):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
His Honour said at 463-4:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
His Honour concluded that the Court was left with “an unbroken chain of undisputed evidence”. In combination, the facts went “beyond mere predisposing circumstances”. They combined to make it “proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train”.
For the reasons given by the Arbitrator, and the additional reasons set out below, the same result follows in Ms Davis’s case.
Ms Davis’s evidence is set out in statements dated 27 November 2008, 22 June 2010, 22 September 2010, and an undated and unsigned statement at page 691 of the Application. Her evidence has been difficult to follow because her solicitors have made no effort to deal with the key events in any logical order. Combining the evidence in the medical histories with the discursive evidence in Ms Davis’s statements, the following history emerges.
Because of her pregnancy, Ms Davis initially received little treatment for her injury. Towards the end of 2001, she saw an osteopath for her neck and back and had physiotherapy. She said that, as she did not know she was entitled to workers compensation payments while on maternity leave, she did not provide the insurer with WorkCover medical certificates. Over the following five or so years, she used a gel and took Panadeine.
In September 2005, Ms Davis’s general practitioner, Dr Mayson, referred her to Denise Marshell, psychologist. In a report dated 22 November 2005, Ms Marshell recorded that the worker was very emotional, crying and saddened by the events leading up to her lodging a workers compensation claim. Ms Davis was very disappointed that the requests for medication had been ignored. She found the long questionnaires, forms and paperwork to be “overwhelming”. Though she completed the forms, she had difficulty focusing on the tasks. Her general practitioner started her on antidepressant medication in October 2005. Because she had not been able to afford her medication, the worker’s condition deteriorated by 15 November 2005. Ms Davis had “huge financial worries” and had become “almost agoraphobic” and ceased her daily walking routine “fearful she may meet someone from her workplace”.
Ms Marshell concluded that Ms Davis had been greatly affected by the events of the previous couple of months and had passed through “sadness, anger, loss of hope, disappointment and currently loss of trust in herself and the system”. Ms Davis expressed doubts that she could ever return to pre-injury duties “with this employer” and said she had received a management plan recently stating that her due date to return to the workplace was 1 January 2006. That “set her back greatly”. Ms Davis feared her health would not withstand any further psychological stress. Ms Marshell agreed. Ms Davis’s life had completely changed over the time she had been out of work. She had cut back on doing most things outside the home and had gained weight, which distressed her. Lately, she had been unable to accompany her children on sporting and school activities and had to rely on family and friends. The clear inference is that that restriction was because of the effect of her injuries.
Ms Marshell recommended ongoing counselling and gym membership. She added that Ms Davis was unable to return to her workplace environment. It is not known if Ms Davis received counselling at that stage.
In early 2006, Ms Davis discussed her circumstances with Dr Kamkolkar, a general practitioner at the medical centre where she worked. That conversation arose after he saw her vomiting because of a reaction to her medication for her back pain. He told her that the insurer should be paying her medical expenses. Because of her pain, he reduced her hours to two five-hour shifts and referred her to Dr Maniam, orthopaedic surgeon. Dr Maniam arranged for a lumbar scan, which revealed a left L4/5 disc prolapse and lumbosacral disc disease. Dr Maniam suggested that Ms Davis might need surgery. He gave her a cortisone injection, which provided relief for two days before the pain returned. At that time, Ms Davis also had symptoms (numbness) in her legs.
The insurer arranged for Ms Davis to start a gym program in March 2008 with Peak Conditioning. That program included using a treadmill, stretches and lifting weights. The physiotherapist pushed Ms Davis to lift weights that she was uncomfortable with, but she managed with pain. Ms Davis said that the reports from Peak Conditioning were incorrect and exaggerated her ability. After these sessions, the insurer advised Ms Davis to join a gym. She used the gym, but after one session was unable to continue because of pain.
At some stage, Ms Davis complained to WorkCover about how she was being treated by her case manager because she was being forced to do exercises that she was unable to do and because she had been advised that the insurer had arranged to investigate her. Months after the exercise sessions ended, she determined that at least two investigators were following her.
In September 2008, Ms Davis received a phone call from her case manager who told her that she had been under surveillance and she needed to speak to her nominated treating doctor and obtain a certificate to reflect that she was able to resume her pre-injury duties. Ms Davis said she was unable to do that. The case manager said that video had been exposed of the worker at the gym. Ms Davis said that the exercises she did were exercises she had been directed to do and found difficult.
Dr Kamkolkar later told Ms Davis that he had been contacted by the insurer and by Dr Kafataris and requested to increase the hours of work for which Ms Davis was certified fit. Dr Kamkolkar refused and told the worker he was threatened with being charged with fraud. Hearing this, and having been under surveillance, caused Ms Davis to suffer panic attacks and anxiety, particularly because her children were in the surveillance footage.
Ms Davis said that her weekly compensation payments were suspended when she refused to seek full-time employment. Since the 2006 award, Ms Davis suffered an increase in pain because of her injuries. The pain was constant and more intense than before and she was more restricted in her movements. She also suffered anxiety. Her medication in June 2010 included, among other things, Tramal, Effexor and Stemzine.
Because of the pressure of her financial situation and reduced sexual relationship, Ms Davis separated from her husband between 2006 and 2008. The relationship with her children has also been affected, as she has been restricted in what she can do with them. She has a reduced capacity to participate in normal social, recreational, sporting, employment and domestic activities.
Ms Davis’s statement of 27 November 2008 was taken by Ms Burgess, consultant psychologist, as part of a pre-liability assessment for Allianz. Ms Davis said that her recent distress was primarily as a result of being “bullied and intimidated” (the words “treated unfairly” having been crossed out of the original statement) by Allianz in relation to her workers compensation claim for physical injury that she lodged in 2000. She said that she started work at a medical centre for six hours on Wednesday nights and gradually increased her hours to 30 per week on non-consecutive days. She arranged her own physiotherapy and osteopathy. She saw Dr Kamkolkar because of the sickness she experienced as a result of her medication. She had approximately two to three months off work. Her statement is confused as to how many hours she worked on her return to work, but she was working 10 per week in two five-hour shifts when she resigned in September 2008 because the centre was “reducing everyone’s hours of work”.
Two weeks after her resignation, she was offered a position with a business called Slab Tech through her husband’s friend. She worked for five hours on 15 October 2008 and five hours one week later. However, after experiencing a panic attack on 30 October 2008, she approached Slab Tech and told them about her situation and that she was unable to continue working.
She recounted her experience with Peak Conditioning in mid-2008. Within five minutes of commencing her first session, the exercise physiologist asked her about upgrading to 40 hours per week and about any legal action she was taking. This disturbed the worker, who thought the physiologist was working for Allianz and not working to help her recovery. Following the exercise physiologist’s report, an officer from Allianz, Ms Reiner, telephoned Ms Davis, which made her angry and distressed “because of her thinking that she could intimidate me”.
Ms Reiner said that Allianz was aware that Ms Davis had an injury, but they did not think it was as bad as had been reported. She said that Allianz had video surveillance of Ms Davis and reports of her carrying out a number of activities. Ms Davis did not deny having carried her daughter’s school backpack over her right shoulder, using exercise equipment in the park (with no weight or resistance), and being able to walk. Ms Davis was further distressed when Ms Reiner threatened her when she said that fraud was against the law. She felt frustrated when she saw what had been reported because of the surveillance. Ms Davis spoke to Ms Reiner’s manager, Ms Rogers, and contacted WorkCover. She felt that the approach by Ms Reiner and Ms Rogers was unprofessional and constituted bullying and victimisation.
Ms Davis said she felt it was unreasonable for Dr Kafataris to expect her to increase her hours of work and that it was “more of the bullying tactics” that were being directed towards her by Allianz. She felt that Ms Reiner had bullied her by sending her job seeker diaries even though she had been certified unfit.
The day after Ms Davis received the surveillance report in the mail from Allianz, she experienced two significant panic attacks and a third attack on 3 November 2008 when she listened to voicemail messages from Ms Burgess. She felt that Allianz, through its letters and “bullying telephone calls”, was sabotaging her attempt to get on with her life. She felt that Allianz was treating her unfairly, and disguising their treatment of her by talking about the Workers Compensation Act caused her distress.
Since not being able to work more than 10 hours per week, Ms Davis has struggled financially. She said that she would like to work and hated not working. She was constantly looking for work that suited her circumstances. Prior to her injury, Ms Davis had an active lifestyle and played representative basketball and netball. She stopped those sports when she fell pregnant, but has been unable to resume sport at the same level. Because of her injuries, she needs assistance with her daily routines.
In her statement of 22 September 2010, Ms Davis said that, in 2008, when she realised she was under surveillance, she was under considerable emotional difficulty and obtained a referral for psychiatric treatment at the Sydney Trauma Centre at Parramatta. She continued to obtain WorkCover certificates for total incapacity and felt that, at that time, she could not do any work. After her compensation payments ceased, she stopped having a great deal of the medical treatment she previously had because she could not afford it.
After recovering from abdominal surgery in October 2009, Ms Davis began looking for
part-time work for about 10 hours per week. Since January 2010, she had been looking for part-time work as a medical secretary on a regular basis. She is only able to do secretarial work with breaks and believes that about 10 hours per week is the limit of her work capacity. She continued to take medication and have massages once per week. She also did home exercises because she could no longer go to the gym.
In her undated statement, Ms Davis said that, since 30 June 2008, her condition had deteriorated significantly “in relation to [her] neck, left arm, back, left leg, bowel function, sexual organs, anxiety and/or depression”. She had increased pain and discomfort due to her injuries. The pain was more intense and more frequent. She had been referred to further doctors for treatment. She believed that her injury had affected her psychological outlook. She found it hard to adjust to the restrictions that her injury imposed on her. She was unable to do any work that required bending and could only walk for approximately 20 to 30 minutes. Squatting and kneeling were painful. Her pain was distressing and affected her mood and her relationships with family and friends.
Medical evidence of the deterioration of Ms Davis’s symptoms is found in Dr Maniam’s report of 23 January 2006. He noted that in April 2005, Ms Davis described tingling in her legs. She was able to get by with analgesics and anti-inflammatory medication. However, six weeks before seeing her in January 2006, Ms Davis’s symptoms deteriorated and started radiating into the left leg. The pain was aggravated by prolonged sitting and during sexual intercourse. There was a sensory deficit in the L5 dermatome and sluggish left ankle jerk. A January 2006 CT scan showed a prominent herniation at L4/5 directed to the left and impacting the L4 nerve root. Dr Maniam felt there had been a “progression in the herniation” because, previously, there was only an irritation of the left L5 nerve.
Dr Manohar assessed Ms Davis at the request of Dr Kamkolkar on 1 April 2008. He took a history of the fall on 23 August 2000 and of the treatment Ms Davis had received. He recorded that she had a gym membership for one year, but “gym work aggravated her symptoms”. Her symptoms were constantly present. Her sleep was disturbed due to pain, anxiety and discomfort.
Mr O’Brien, consulting psychologist, saw Ms Davis on 3 November 2008, she having been referred to him by Dr Kamkolkar. He conducted a psychological functioning assessment on 17 November 2008. He took a history that Ms Davis’s back injury was chronic and had affected her ability to socialise and play sport, something she had done competitively before her accident. He added:
“Through differences of opinion in relation to the number of workable hours per week, payments withheld, video surveillance, and the persistent phone calls Ms Davis advised she has become overwhelmingly distressed.”
She said that the medication she took for her pain made her vomit, though she was willing to use it because it reduced her pain. For her depressive symptoms, she had been prescribed Effexor, though did not continue the treatment because it made her too “sedative for her to operate”. Her relationship with her partner diminished. She had medical certificates limiting her to 10 hours of work per week. She said that she would like to work on alternate days in a position that was not too physically demanding. Recently, she felt “too distressed about her situation with Allianz, has difficulties relating to people and is confronted about being employed”. She had no problems with working and derived satisfaction from previous positions. She had no history of prior compensation claims or any family history of psychological or psychiatric illness.
Ms Davis completed sessions with Peak Performance at a rehabilitation centre. In the course of these sessions, she was encouraged to lift weights that caused pain and the instructor tried to convince her that she was not experiencing pain. She felt the purpose of the sessions was to get her to agree to an increase in the number of hours she could work per week, not to rehabilitate her muscles. At her last meeting with the instructor and Dr Kamkolkar, he certified her fit for 10 hours per week. This was not acceptable to Allianz. It was at this point that Ms Davis’s anxiety became difficult to manage. Her session with Dr Kafataris was concerning “in that he was not interested in her previous health reports”. It was in this period that she had to resign from her job at the health centre due to the lack of demand for receptionists.
Allianz placed Ms Davis under surveillance and filmed her and her children. This caused Ms Davis to “significantly suffer from more anxiety”. She then had an increase in the number of calls from her case manager. Ms Davis became tearful when she explained these details to Mr O’Brien.
Ms Davis reported to Mr O’Brien that the injury had “impacted her both physically and mentally”. She described noticing changes in her behaviours, including increased irritability, anger outbursts, sadness, tearfulness and heightened anxiety. Her limited movement of her back and neck caused her distress. Her relationships had been hindered. Her ability to “mother her children has been impaired due to the increased tension, and sex with her partner has become more restrictive”. As a result, she became socially withdrawn, tended to be tired and procrastinate, her memory was more scattered and she had difficulty making decisions. She described her experience dealing with Allianz staff as being bullied by a global organisation and, as a result, she had increased tension in her body, which further impaired her rehabilitation.
At the time of Mr O’Brien’s assessment on 17 November 2008, Ms Davis felt too “emotionally unstable and physically restricted to properly function” due to the demands Allianz placed on her. Ms Davis’s score on the Beck Depression Inventory was 30, indicating that her reported symptoms were within the severe depression range. Similarly, her score of 43 on the Beck Anxiety Inventory was within the severe anxiety range. Her result in The Depression Anxiety Stress Scale 42 was also in the severe range.
Mr O’Brien concluded that Ms Davis’s symptoms were of adequate frequency and severity to warrant a clinical classification of a chronic adjustment disorder with mixed anxiety and depressed mood, as defined by the Diagnostic and Statistical Manual of Mental Disorders, 4th ed (DSM IV). He felt she would benefit from appropriate psychological treatment.
Dr Hampshire, consultant psychiatrist, examined Ms Davis for medicolegal purposes on 7 May 2009. His history was essentially consistent with that taken by Mr O’Brien. He recorded that Ms Davis had a panic attack in the second half of 2008 after she became aware that she was under surveillance. Ms Davis also became increasingly sad in the second half of 2008. Since her initial panic attack, she had three others, each “ushered in by her thoughts related to her ongoing issues with her insurer”. Following the surveillance and the panic attacks in 2008, Ms Davis stopped work.
Dr Hampshire said that Ms Davis tended to “grip the Peak Conditioning report and the fact that she was under surveillance by the insurer in the same area, as a challenge to her integrity”. He concluded that her pain disorder had a psychological component, “being depression”, which was stable and chronic, and that the “minor fall at work has had subsequent significant psychological morbidity”. She had never had a psychiatric illness in the past.
Counsel for Ms Davis referred to the multiple Injury Management Plans prepared by Allianz in this matter and the biannual reviews of those plans in 2007. That changed in 2008 when there was an increase in the frequency of communications from Allianz to Ms Davis. He drew attention to the letter from Allianz to Ms Davis dated 12 September 2008 in which Allianz said that it was not able to accept the final permanently modified duties certificate issued by Dr Kamkolkar on 29 August 2008 and added that Ms Davis’s nominated treating doctor (NTD) (Dr Kamkolkar) had agreed that she was fit to resume a full shift of clerical duties. The letter requested Ms Davis to return to Dr Kamkolkar and obtain a certificate stating that she was fit for suitable duties for five hours per day three days per week and provide that certificate to Allianz on or before 26 September 2008. The letter added:
“We then expect you to return to your nominated treating doctor fortnightly thereafter to upgrade your fitness for work in line [with] the timeframes listed above and provide copies of these certificates to Allianz on the day certified. Unless we are provided with objective medical evidence that supports a reduced certificate Allianz consider[s] that you will be fit to perform clerical duties at 40 hours per week by the start of December 2008.”
Allianz relied on a report from Dr Kafataris dated 1 September 2008 in which he said, “[a]s discussed with the NTD I can see no reason why this worker should remain at 10 hours a week for her current duties”. He added that the discussion with the nominated treating doctor confirmed that there was no pathological reason why the worker should remain at ten hours a week, particularly given the reduction in size of her disc protrusion proven via MRI scan.
Dr Kafataris reported again on 30 October 2008 that the nominated treating doctor “conceded that there was no objective medical evidence to suggest that [Ms Davis] could work no more than ten hours a week particularly given the surveillance video”. He said that his recommendation regarding upgrading would remain, as there was no objective evidence to suggest that the worker could not upgrade to a full shift of permanently modified duties, particularly given the function displayed on the surveillance video. He concluded that the nominated treating doctor “did not dispute this”.
In respect of the surveillance, counsel submitted that Ms Davis was performing exercises she had been encouraged to perform by Peak Conditioning, though she found them painful. In respect of the opinion allegedly held by Ms Davis’s nominated treating doctor, counsel referred to a report from Dr Kamkolkar dated 18 September 2008, in which the doctor replied to Allianz’s letter of 1 September 2008. He denied that he had given permission for Ms Davis’s hours to be increased to 40 and said that he knew she could barely work for 10 hours per week. He added that she had tried to increase her hours to 24 per week over two years, but was unable to do so as “her pain and condition got worse”. He thought that an increase in hours was detrimental to Ms Davis and he stood by his final certificate of 29 August 2008.
Notwithstanding Dr Kamkolkar’s report of 18 September 2008, Allianz maintained its attitude in a further Injury Management Plan (by now being revised monthly) dated 8 January 2009 in which it said:
“Ms Davis will return to Dr Kamkolkar within 14 days and obtain an upgrade in fitness for work 8 hours per day, 5 days per week. Should this certificate not be presented to Allianz within 14 days the worker will be asked to appoint a new nominated treating doctor who is willing to participate in this claim.”
Counsel submitted that this was illustrative of why there was a good reason for Ms Davis to “feel frustrated and harassed and overborne by the administrative acts of the insurer” (T19.28). I agree. Counsel for Cadbury made no relevant response to this submission, but said that it was inappropriate that Dr Kamkolkar, who practised at the medical centre where Ms Davis worked, should be her nominated treating doctor. That submission was unhelpful. As Ms Davis’s treating doctor, Dr Kamkolkar was entitled to express his opinion as to her fitness for work. He was responsible for coordinating Ms Davis’s medical management. Under the WorkCover scheme, the nominated treating doctor is required to issue WorkCover medical certificates. Those certificates “must accurately report the diagnosis of the [w]orker’s [i]njury and the [w]orker’s level of fitness for work, based on the doctor’s opinion”.
Counsel for Ms Davis correctly submitted that there was no evidence that refuted the worker’s case that she has a psychological condition (T20.24) or that suggested that it had arisen from anything other than “the unfortunate chain of events set in train by her back injury” (T20.30). Counsel for Cadbury pointed to no evidence to the contrary.
Ms Burgess reached the same diagnosis as Mr O’Brien, namely that Ms Davis was suffering from an adjustment disorder with mixed anxiety and depressed mood. However, she added, taking the same incorrect approach as Cadbury has on appeal, that work was not a substantial contributing factor to Ms Davis’s distress, but Ms Davis had a strong personalised reaction to the management of her claim for physical injury. However, that reaction resulted from the physical injuries and the significant consequences of those injuries. Those consequences included chronic pain, insomnia, anxiety, social withdrawal, abdominal symptoms and depression.
Adopting a commonsense evaluation of the causal chain, I cannot imagine a clearer case of a psychological condition having resulted directly from the relevant physical injuries. I have no hesitation in accepting Ms Davis’s evidence about the effect her physical injuries have had on her. As set out in detail above, those injuries had severe and life changing consequences for Ms Davis and affected both her physical and mental health. They caused her chronic pain that affected every aspect of her life. Cadbury suggested no other potential cause for the psychological condition. None is suggested in the 1000 pages of “evidence” the parties have tendered.
Cadbury has based its argument on an elementary misunderstanding of longstanding principles of workers compensation law. I have no hesitation in accepting, as did the Arbitrator, that there is an unbroken chain of causation between Ms Davis’s physical injuries on 23 August 2000 and her psychological condition. The evidence overwhelmingly supports that conclusion.
Cadbury has wrongly focused on the fact that Ms Davis did not receive a psychological injury on 23 August 2000 and that her employment had not been a substantial contributing factor to that “injury”. Having regard to the whole of the evidence, I am satisfied that Ms Davis’s psychological condition has resulted from the physical injuries she received on 23 August 2000 and she is entitled to be compensated for the consequences of that condition.
Total incapacity
The Arbitrator accepted Ms Davis’s evidence, supported by Dr Kamkolkar, that, as a result of her physical injuries and her psychological condition, she was totally unfit from 30 October 2008 to 30 April 2009 (T7.5-16 15 October 2010).
On appeal, Cadbury’s submissions depend on a finding that there was no psychological injury and that the psychological symptoms should be disregarded when determining fitness for work. Whilst it is correct that there was no psychological “injury” within the terms of s 4, as I have explained above, it is clear that Ms Davis’s psychological condition has resulted from her physical injuries and, to the extent that it has contributed to her incapacity, she is entitled to be compensated.
Cadbury has also submitted that s 33 of the 1987 Act states that weekly compensation is “only payable in respect of ‘an injury’”. That is incorrect. Section 33 states that weekly compensation is payable if total or partial incapacity “results from an injury”. I therefore reject Cadbury’s submission that the psychological condition should be disregarded in determining the extent of Ms Davis’s incapacity.
The evidence from Dr Kamkolkar, in two WorkCover certificates dated 30 October 2008 and 3 February 2009, is that Ms Davis was totally unfit from 30 October 2008 until 30 April 2009 because of acute lumbosacral pains, anxiety and depression/emotional distress. This evidence is consistent with Ms Davis’s evidence, at paragraph 16 of her undated statement, which I accept, that her condition had deteriorated significantly since 30 June 2008 because of increasing pain. It is also consistent with the statement taken by Ms Burgess that Ms Davis was unable to continue working for Slab Tech after a panic attack on 30 October 2008, and with Mr O’Brien’s assessment on 17 November 2008 that Ms Davis had become “overwhelmingly distressed” by her circumstances and that she felt too “emotionally unstable and physically restricted to properly function”.
Having regard to the whole of the evidence, it was open to the Arbitrator to find that Ms Davis was totally unfit from 30 October 2008 to 30 April 2009 as a result of her work injuries. Having reviewed the evidence, I have reached the same conclusion.
Reasons
Cadbury has argued that the Arbitrator failed to give adequate reasons why she accepted that the “psychological injury”, the onset of which, it was submitted, occurred in the latter part of 2008, arose out of or in the course of Ms Davis’s employment. It has also complained that the Arbitrator failed to analyse the question of whether employment was a substantial contributing factor to the injury.
There are a number of problems with these submissions.
First, they make the same basic error referred to above under “psychological injury”. The worker did not suffer a “psychological injury” and her counsel did not argue that she had. It was therefore not necessary for the Arbitrator to find injury under s 4 and that employment had been a substantial contributing factor to any psychological injury. The Arbitrator erred in finding that the worker had received a psychological injury. However, applying the correct approach, the conclusion is the same. Ms Davis’s psychological condition resulted from her physical injuries. Her symptoms (from her physical and psychological conditions) resulted in her being totally unfit from 30 October 2008 to 30 April 2009 and partially unfit thereafter.
Second, Ms Davis’s psychological symptoms developed in 2005, not 2008, and the evidence from Ms Marshell clearly linked those symptoms to her physical injuries and the claim for compensation for those injuries. The management of a claim for compensation is as much a part of the claim as the treatment of the injury.
Third, the Arbitrator correctly found that Ms Davis’s psychological condition resulted from her physical injuries (see [26] above). She supported that finding with her reasons. Those reasons were set out in the transcript of 15 October 2010 where she found:
(a) there was no dispute that Ms Davis suffered from a psychological condition (T2.25);
(b) Ms Davis’s physical state had been deteriorating from late 2005 (T2.46). That deterioration was due to the injury on 23 August 2000 (T3.7);
(c) a psychological condition had been developing from 2005 (T3.30);
(d) Ms Marshell noted depression and sadness, as a consequence of the injury on 23 August 2000 (T3.37);
(e) Ms Marshell noted that one of Ms Davis’s concerns was the management of her claim by the insurer (T3.45). These concerns included constant paperwork for the insurer, financial concerns, the cost of medication, worry about being able to provide for her children, loss of confidence in her abilities, and weight gain (T3.47-55);
(f) the same things concerned Ms Davis from 2005 until the last psychological reports (T4.11);
(g) the absence of any pre-existing psychological condition (T4.10);
(h) Ms Davis’s physical condition was deteriorating and was distressing to her (T4.22-25), and
(i) Ms Davis found the surveillance distressing (T4.20).
The Arbitrator’s reasons explained the basis for her conclusion on the causation issue and, for the reasons set out earlier in this decision, I agree with her conclusion.
Fourth, Cadbury’s submission that there is “no provision in the legislation to indicate [that] such a condition [as suffered by Ms Davis] would give rise to payment of compensation” again misses the point: weekly compensation is payable where the claimed incapacity has resulted from the injury. The evidence is overwhelmingly to the effect that Ms Davis’s psychological condition has resulted from her injuries on 23 August 2000. Thus, she is entitled to compensation for that condition “in accordance with” the 1987 Act (s 9 of the 1987 Act). The submission that “it would be absurd to suggest that an employer ought be liable for the consequences of the management of a claim for compensation by an insurer/scheme agent” is also misconceived, as it has not had regard to the relevant authorities, the evidence or legislation. The evidence is clear that, though Ms Davis was (understandably) distressed by the management of her claim, that was only one factor that contributed to the development of her psychological condition.
Last, Cadbury submitted that to give a worker compensation in respect of a “psychological injury” that developed due to “issues relating to compliance with obligations imposed on workers by the legislation, would not be consistent with the intent of the legislation” and may result in a worker alleging such difficulties to avoid meeting his or her rehabilitation and return to work obligations. It was submitted that the Arbitrator failed to consider these matters. It is correct that the Arbitrator did not consider these matters. That is because they were not put to her at the arbitration. Other than the broad allegation I have just noted, Cadbury has made no submissions on this issue and referred to no evidence or authorities in support of its submission on appeal.
The submission is unsustainable. The legislation specifically deals with issues relating to “compliance with obligations imposed on workers by the legislation”. Where a worker “fails unreasonably to comply” with a requirement of Chapter 3 of the 1998 Act, which deals with workplace injury management and injury management plan obligations, then, provided the insurer has given the worker written notice of the alleged failure, the worker has no entitlement to weekly compensation during any period that the failure continues (s 57 of the 1998 Act). Section 38A(5) of the 1987 Act deals with the situation where a worker has “unreasonably” refused to have an assessment made of his or her employment prospects or “unreasonably” refused to cooperate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under an employer’s return to work program.
Whilst Allianz referred to s 38A(5) in its s 52A notice, the Arbitrator did not have to determine that issue because she found (and I have confirmed on appeal) that Ms Davis was totally unfit at the time the notice was issued and the notice was therefore of no effect. Whether a worker has acted unreasonably with regard to his or her obligations under the legislation will be determined on a case-by-case basis and nothing in this decision detracts from the terms of s 57, s 38A(5), or any of the other injury management or non-compliance provisions.
Section 52A
On appeal, Cadbury has alleged that the Arbitrator erred in failing to consider, or properly consider, the provisions of s 52A when determining the worker’s entitlement to weekly compensation. However, it has conceded that this ground of appeal depends upon it succeeding with its appeal on the issues of “psychological injury” and “total incapacity”. As it has failed on those issues, it is not necessary for me to deal with this further ground except to note that the Arbitrator correctly stated that the parties agreed that, if Ms Davis was totally unfit at the time Allianz issued the s 52A notice on 22 January 2009, then the notice was of no effect (T34.36 and T49.1 14 October 2010) (Puzyrewski v Zumtobel Staff (Australia) Pty Ltd [2002] NSWCC 17; 23 NSWCCR 327).
OTHER MATTERS
Whilst I have been greatly assisted by the detailed and helpful submissions by Ms Davis’s counsel, the general preparation of the Application by P K Simpson and Co has, as usual, been appalling (see Vivaldo v Uniting Church in Australia t/as Lucan Care [2010] NSWWCCPD 41, where I made the same observation about the same solicitors).
The parties have tendered just over 1000 pages in this matter, with 695 pages in the Application alone. Many of the documents are irrelevant. The documents attached to the Application are in no particular order. For example, the medical certificate dated 30 October 2008 is at page 648 of the Application and the next certificate chronologically (3 February 2009) is at page 461. Another certificate is at page 208. As a result, locating relevant evidence has been difficult and time consuming. That has unreasonably protracted the review process. Solicitors are required to attach documents to applications in a logical order. They should only attach those documents that are relevant to the claim. The practice of randomly attaching every piece of paper regardless of relevance must stop and may result in a cost penalty if it continues.
The preferred order for documents attached to applications in the Commission is: claim form/s, worker’s statement/s, witness statement/s and factual investigations, notice of claim document/s, section 74 notice/s, relevant correspondence, medical certificates, medical reports, clinical notes, and financial records. Documents in each section should be arranged in chronological order with the first in time placed first.
The worker’s statement at page 691 of the Application was also unsatisfactory. It was undated, unsigned, and so poorly drafted that it did not deal with the issues in any useful or logical way. Effectively, P K Simpson and Co made no effort to prepare the claim, but merely relied on the statements prepared by the insurer’s investigator and by Ms Burgess. Whilst those statements dealt with several of the relevant issues, they had not been prepared by lawyers and were far from ideal.
If solicitors are not prepared to do the basic preparation required to properly present cases in the Commission, they should not practice in the jurisdiction.
CONCLUSION
It follows that, whilst the Arbitrator’s ultimate orders are correct, her findings that Ms Davis suffered a psychological injury on 23 August 2000 and that employment was a substantial contributing factor to that injury cannot stand. The correct finding is that, as a result of her injuries on 23 August 2000, Ms Davis developed a psychological condition, namely chronic adjustment disorder with mixed anxiety and depressed mood, and that, as a result of that condition and her physical injuries, she was totally unfit for work from 30 October 2008 to 30 April 2009 and partially unfit to date and continuing. It follows from my findings that the employer is liable to meet Ms Davis’s reasonably necessary hospital and medical expenses under s 60 and that those expenses will include treatment for her psychological condition.
DECISION
Paragraphs 1 and 2 of the Arbitrator’s findings in the Certificate of Determination dated 18 October 2010 are revoked and the following findings made in their place:
“1. As a result of her injuries on 23 August 2000, the applicant developed a psychological condition, namely chronic adjustment disorder with mixed anxiety and depressed mood.”
All other findings and orders in the Certificate of Determination dated 18 October 2010 are confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
31 January 2011
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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