Callingham v Tophos Pty Ltd t/as Central Coast Easy Care

[2008] NSWWCCPD 140

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Callingham v Tophos Pty Ltd t/as Central Coast Easy Care [2008] NSWWCCPD 140
APPELLANT:		Robyn Suzanne Callingham
RESPONDENT:		Tophos Pty Ltd t/as Central Coast Easy Care
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC3352-08
DATE OF ARBITRATOR’S DECISION:		18 August 2008
DATE OF APPEAL DECISION:		26 November 2008
SUBJECT MATTER OF DECISION:		Psychological injury; failure to consider relevant evidence; assessment of medical evidence; relevance of a prior psychological condition; application of State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	White Barnes
Respondent:	Moray Agnew
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 18 August 2008 is revoked and the following orders made: “1. Award for the applicant under section 36 of the Workers Compensation Act 1987 in the sum of $548.88 per week from 20 March 2007 until 16 April 2007 and under section 40 in the sum of $68.88 per week from 17 April 2007 until 16 May 2007. 2. The respondent is to pay the applicant’s reasonable hospital and medical expenses under section 60 of the Workers Compensation Act 1987 incurred in the period from 20 March 2007 up to and including 17 May 2007. 3. The respondent is to pay the applicant’s costs as agreed or assessed under Table 1 Item F of Part B of Schedule 6 of the Workers Compensation Regulation 2003.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

INTRODUCTION

1. This appeal concerns whether the worker received a psychological injury arising out of or in the course of her employment with the respondent and, if so, whether, having regard to her history of prior psychological symptoms, her employment was a substantial contributing factor to that injury.

BACKGROUND

1. The worker, Robyn Callingham, holds a Bachelor of Health Science (Nursing) and several additional certificate qualifications.  Whilst working as a nurse unit manager at Prince Henry and Prince of Wales Hospitals in the 1990s, she suffered a significant injury to her low back.  As a result of that injury she developed an Adjustment Disorder and Depression and came under the care of Dr Butler, psychiatrist, who treated her between March 2001 and August 2002, and Dr Nicol, general practitioner, who treated her with anti depressant medication from 2001 to date.  Her back injury forced her to move into teaching, and other fields, and ultimately led to her work for the respondent employer, Tophos Pty Ltd t/as Central Coast Easy Care (‘Easy Care’). 

1. Easy Care is a home run business that provides government funded aged care packages for people who require hostel level care, but wish to remain in their own homes.  Ms Callingham started with Easy Care as a part time support worker in June 2005.  In November 2005, she became the Community Aged Care Package (‘CACP’) Co-ordinator and in December 2005, she became the Nurse Assessor, a position referred to by the Arbitrator as “Key Personnel”.  All her positions were part time, her hours being from 10am until 4pm Tuesday to Friday.

1. Her claim is that she sustained a psychological injury as a result of harassment, bullying and victimisation in the course of her employment with Easy Care over a period of time up to and including 16 March 2007, and that as a result of that injury she was unfit to work from 16 March 2007 until 17 May 2007. By a section 74 notice dated 30 April 2007, Easy Care’s insurer, QBE Workers Compensation (NSW) Ltd (‘QBE’), disputed Ms Callingham’s claim on the grounds that she had not sustained an injury as defined by section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and, if she did sustain such an injury, that her employment was not a substantial contributing factor to such injury.

1. A Commission Arbitrator heard the matter at a conciliation and arbitration hearing on 29 July 2008.  In a reserved decision, delivered on 18 August 2008, the Arbitrator preferred the evidence from a psychiatrist qualified by QBE, Dr Vickery, and made an award in favour of Easy Care on the basis that any psychological or psychiatric condition suffered by Ms Callingham resulted from her orthopaedic injury in 1993 and could not be attributed to her employment with Easy Care.  He therefore made an award in favour of the respondent.

1. By an appeal filed on 10 September 2008, Ms Callingham seeks leave to appeal the Arbitrator’s decision.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. There is no issue that the monetary thresholds in section 352(2) are satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

ON THE PAPERS

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Easy Care 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. 

THE EVIDENCE

Lay Evidence

1. Ms Callingham’s case is set out in several statements, including a 20 page statement prepared by QBE’s investigators on 14 April 2007, a two page unsigned statement prepared by her solicitor on 19 July 2007, and a statement prepared by her on 1 May 2008.  The May 2008 statement deals with the matters raised in QBE’s factual investigation and has annexed to it several other documents which I will refer to later in this decision.

1. Whilst I have read all of the voluminous material in this matter, I will only set out in this decision a brief summary of the more important matters.  Nevertheless, I have considered all the evidence in conducting this review.

1. In summary, Ms Callingham’s complaint that she was harassed, bullied and victimised is based on, but not limited to, the following matters and incidents:

(a)unqualified staff interfered with her duties;

(b)there was a lack of necessary communication and support;

(c)she was “shouted at” when she expressed her concerns;

(d)her complaints were ignored;

(e)she was unfairly criticised in front of staff;

(f)she was unfairly criticised of “sabotaging the business”;

(g)her physical presence was ignored;

(h)she worked in unreasonable conditions and her request that the workplace and her work station comply with Occupational Health and Safety standards were ignored;

(i)management took action to undermine her authority, and

(j)the manager and business owner, Wendy Cooper, made an unreasonable request as to how Ms Callingham was to park her car.

1. This list follows the list set out by Ms Callingham in the document marked “A” attached to her claim form dated 26 March 2008.  The substance of Ms Callingham’s complaints is set out in her 20-page statement of 14 April 2007.  Essentially, she complains that:

(a)she experienced problems at work from the time she commenced.  She found Ms Cooper’s daughter, Sarah Hamilton, who also worked in the business, to be unpleasant to work with.  She alleges that Ms Hamilton provided her with inaccurate information, or failed to provide information at all, which made it difficult for her to do her job of rostering for client’s hours.  Ms Hamilton would make changes to staffing arrangements Ms Callingham put in place for clients with specific needs.  Ms Hamilton would often ignore Ms Callingham, or would walk away when Ms Callingham was talking to her.  Ms Callingham was concerned, because if anything went wrong in terms of client care it was Ms Callingham who would have taken the blame.  That annoyed and depressed her.  Ms Cooper rejected Ms Callingham’s complaints about Ms Hamilton, and said that Ms Callingham could leave if she did not like the way things were run.  Ultimately, Ms Cooper took Ms Callingham off rostering, alleging that she had been allocating too many hours of care to clients, and gave that job to Ms Hamilton;

(b)the respondent conducted its business in a residential house where Ms Hamilton, her husband and her two children lived.  The children regularly played in the office and toys were often left in the way, making it difficult to work;

(c)an audit of the business’ files was to be conducted in March 2007. Prior to the audit, Ms Callingham advised Ms Cooper that the documentation was deficient and did not comply with the Aged Care Act. Ms Callingham set about ensuring that her files were up to date and tagged each deficient file. In her absence, the file covers were changed, some of her documentation removed, and some rewritten (incorrectly) by Ms Hamilton. In the week before the audit, Stewart Ellway, Ms Cooper’s husband, who also worked in the business, spoke to Ms Callingham with a raised voice when he told her she did not have to put certain reports in chronological order. She felt shocked and hurt;

(d)Ms Hamilton undermined Ms Callingham in front of Ms Cooper and Mr Ellway.  This made Ms Callingham feel humiliated and flat;

(e)Ms Callingham attended work on Friday 9 March 2007, the day after the audit.  Mr Ellway said that things were not right with the files.  She replied that she was aware that things were missing and she had spoken to Ms Cooper.  An argument developed in which Mr Ellway allegedly said, “We think you are sabotaging the business”.  Ms Callingham started to shake and cry.  She left the office, but returned a few minutes later and said, “Don’t ever accuse me of sabotage, that is the lowest thing you could ever say to me because I have helped Wendy out and gone through as much stress as everyone else has, but I don’t walk around the office shouting at everybody, I just get on and get the work done that has to be done”.  The office manager, Bree Berridge, who was present during part of this conversation, offered to make Ms Callingham a cup of coffee.  Ms Callingham took some files into the office and said to Mr Ellway, “These are some of the files I have been working on to cover Wendy’s backside”.  He did not reply.  Ms Callingham, still shaking, then went outside with Ms Berridge and sat down for 10 or 15 minutes.  Ms Callingham then left work and went to bed and stayed in bed that weekend.  She felt that Ms Cooper and Mr Ellway did not care about her feelings and were doing their best to make her leave;

(f)Ms Callingham often came home from work feeling exhausted and stressed out, and would go to bed and sleep.  She lost her appetite and lost nearly two stone over the seven months up to March 2007.  She consulted her doctor about her weight loss and was told that there was nothing physically wrong with her;

(g)Ms Callingham returned to work on Tuesday 13 March 2007 and apologised to Ms Cooper for the events of the previous Friday.  Ms Cooper replied, “I wasn’t here, I don’t want to talk about it”.  Ms Callingham continued her normal work until Friday 16 March 2007.  On that day she was emotionally drained because she had a review with a client who was extremely upset because her carer had been taken away from her by virtue of Ms Hamilton’s rostering.  As a result, the review conducted by Ms Callingham took three hours instead of the usual 30 minutes.  When she returned to the office at about 1.30pm she noticed a hand written letter on her desk from Ms Cooper.  It read:

“ROBYN,

WILL YOU PLEASE
ALWAYS TURN YOUR CAR
AROUND WHEN YOU COME
IN TO PARK.

IF YOU DO NOT WISH TO
DO THIS THEN LEAVE
YOUR CAR UP ON THE
STREET.

WENDY  ‘THE BOSS’”

(h)when Ms Cooper returned to the office at 2.30pm, Ms Callingham told her that she could not reverse her car in as it hurt her back.  Before she could finish, Ms Cooper cut her off and said, “I don’t want to hear your excuses, it is not convenient for anyone else, you driving in”, and then left.  Ms Callingham felt this incident was the last straw, that they didn’t care about her, and that she could not take any more because she was unable to resolve any situation by discussion with Ms Cooper.  Ms Callingham finished work and decided that she could not “face them again”;

(i)she made an appointment to see her general practitioner, Dr Nicol, on the following Tuesday, the first available time.  He certified her unfit because of stress;

(j)by mid April 2007, Ms Callingham was sleeping a lot better, but not eating, and

(k)Ms Callingham denies having any stress or anxiety in her private life or suffering from work related stress in the past.  There is no history of depression or anxiety in her family.

1. Ms Callingham relies on evidence from the following co-workers: Wendy Boundy, carer, Bruce Williams, carer, and Michelle Roscarel, one of Ms Callingham’s daughters and also a carer with Easy Care for six months from April 2006. 

1. Ms Boundy’s evidence is in her statement of 10 May 2007.  The key features of her evidence are:

(a)clients told her they loved Ms Callingham, as she was kind, understanding, listened to their problems, and acted on them;

(b)Ms Callingham was very competent in her duties;

(c)everything was going well until Ms Callingham went into hospital for a carpal tunnel operation on 29 January 2007 and Ms Hamilton took over the rosters.  From then on serious mistakes were made (listed at pages three and four of her statement);

(d)there were no set rules as to how to park your car at the office and “everyone drove down the driveway frontwards”.  Ms Hamilton’s big Ford station wagon was more often than not parked in frontwards.  Ms Boundy was never instructed where or how to park her car.  No one method was safer than the other, and

(e)in the office, there were young children opening draws, playing with the shredder and computers, crying, eating and drinking.

1. Mr Williams’ evidence is that he met Ms Callingham when she lectured him in the course of his certificate in Community Service and Disabilities.  He found her to be a highly efficient professional who was always in control, flexible and helpful.  She found Mr Williams part time work as a carer with Easy Care.  At the start, Ms Callingham allocated his work and things went smoothly until Ms Hamilton took over allocations and the work dried up.  Clients were happy with Ms Callingham and often praised her.  In his opinion, she was the “consummate professional” and a team player.  During the period that he knew Ms Callingham, he would reject as absurd any suggestion that she displayed any signs of a nervous, mental or depressive condition.  He always parked his car front first at the office and was never given any instruction to the contrary.  Some cars were parked front first and others parked rear first.  He often saw small children in the office and he found the state of cleanliness “was disgusting”.

1. Ms Roscarel states that when she was hired, she asked if there was any set place to park and Ms Cooper said, “No, just any way you want and if you want to know anything else just ask Robyn”.  At no time did Ms Cooper indicate that there were any complaints, form either staff or clients, about Ms Callingham.  When she visited the office, she noticed that it resembled a play area.  Ms Roscarel was involved in negotiations, with her mother, to purchase Easy Care.  To that end, she became the director, along with her mother and Ms Berridge, the office manager, of a company called Ribmir Pty Ltd.  After reviewing the financial records, they resolved that the asking price ($150,000) was not sustainable and an offer of $100,000 was made, but rejected.

2. Easy Care’s evidence is set out in statements from Ms Cooper, her husband, Mr Ellway, her daughter, Ms Hamilton, and Ms Berridge. 

1. Ms Cooper’s evidence is in her statement of 19 April 2007.  The main features of her evidence are:

(a)in late 2005, negotiations commenced for the sale of Easy Care to Ms Callingham, or a company under her control, for $150,000.  Those negotiations broke down, and in late 2006 the business was withdrawn from sale;

(b)on 19 December 2006, Ms Cooper took the role of co-ordinator away from Ms Callingham because she was not performing the tasks competently: she seemed to take a long time to do the rostering and made errors with it (sometimes two carers would be sent to a client at the one time, or she would not note in the roster book that a client was in hospital and a carer would go to an empty home).  In addition, the payments return to the Commonwealth Department of Health and Ageing had mistakes in it;

(c)on 19 December 2006, Ms Cooper “put it to Robyn that she might consider leaving”, but she indicated she wanted to stay.  Ms Cooper gave Ms Callingham no formal warning;

(d)some clients indicated that they did not want Ms Callingham in their homes.  Ms Cooper held a meeting with Ms Callingham on 16 January 2007, to discuss these matters;

(e)the business was to be audited on 8 March 2007 and Ms Cooper asked Ms Callingham to update the patient files on the computer and on paper.  Ms Callingham said that files were missing and accused Ms Hamilton of “sabotaging her”.  The files were later found, having been misplaced, but Ms Callingham never apologised or accepted responsibility for any errors she made.  Ms Hamilton went through the files and put them into new file covers.  She removed some “scribbled notes off some of the files” but did not remove pages that had to be left in the file.  Ms Callingham accused Ms Hamilton of taking ‘Assessment/Review of Client’ forms out of files and “sabotaging” her.  Ms Cooper felt that Ms Callingham had probably not completed the reviews in the first place;

(f)Ms Cooper denies making Ms Callingham’s life difficult at work.  Everyone “seemed to be pussy footing around Robyn and taking on extra tasks to relieve Robyn”;

(g)Ms Cooper asked Ms Callingham to park her car in a certain manner so that other vehicles “could come and go without restriction”.  If a car parked front first, it was difficult for it to turn around on leaving and it would have to reverse up the driveway onto a busy road.  Ms Cooper was “mindful of safety in this regard”.  Ms Callingham objected to this and parked front first.  Ms Cooper asked her on a number of occasions to reverse in, and explained why.  On 16 March 2007, Ms Cooper left a note for Ms Callingham about the parking.  Later that day, the two women had a discussion in which Ms Callingham said she could not see over her shoulder to be able to reverse in because her back was too stiff, and she could not use her mirrors to reverse.  Ms Cooper responded, “You’d better learn then”.  She then left the office, as she was running late;

(h)after seeking advice on Monday 19 March 2007, Ms Cooper decided to terminate Ms Callingham’s employment because she was displeased with her work performance.  She prepared a letter to give effect to that decision, but did not give it to Ms Callingham because she did not come back to work after the episode on 16 March 2007, and

(i)on 20 March 2007, Ms Callingham’s partner phoned to say that she was ill with vomiting.  On 21 March 2007, Ms Cooper received a letter in which Ms Callingham advised she was claiming workers compensation for a stress related condition.

1. Ms Hamilton also gave a statement on 19 April 2007.  Her evidence may be summarised as follows:

(a)because Ms Callingham made mistakes with the rosters, Ms Berridge took over that job until September 2006 when Ms Hamilton took over that task because Ms Berridge was too busy;

(b)as Ms Callingham made mistakes in the return to the Department of Health and Ageing, Ms Cooper took over that role;

(c)Ms Callingham would often have unexplained absences from the office;

(d)some clients called the office and said they did not want Ms Callingham in their homes, as she had belittled them;

(e)Ms Callingham interfered in the running of the business by admonishing staff in the office in front of other people;

(f)Ms Callingham’s attitude changed after the business was taken off the market.  She started to yell a lot.  It got to the point where Ms Hamilton did not want to be in the office with her;

(g)to prepare for the audit, Ms Hamilton transferred client files into new folders, removed some out-of-date movement sheets, and transferred data.  No client profiles or other material was removed;

(h)Ms Hamilton denies undermining Ms Callingham’s position in any way.  She may have felt undermined, as on one occasion a client’s hours were changed without reference to her or to Ms Cooper, but a decision had to be made immediately and Ms Callingham could not be contacted;

(i)Ms Hamilton’s children would visit the office to say hello, but did not stay for long periods and were not disruptive;

(j)Ms Callingham always blamed other people for misplacing files or losing paper work when she lost had them.  She did not take responsibility for anything that went wrong, and

(k)since Ms Callingham has been away, the office has been running more efficiently and there is less stress.

1. Mr Ellway’s statement is also dated 19 April 2007.  The relevant features of his evidence are:

(a)he noticed friction between Ms Callingham and Ms Hamilton from quite early in the piece.  According to Ms Callingham, Ms Hamilton could not do anything right;

(b)Ms Callingham would never admit to making a mistake, but always blamed someone else;

(c)in Mr Ellway’s opinion, Ms Callingham was stressed about the audit because her reports were not up to date.  He advised her not to worry about putting the reports in date order, as that could be done later.  She insisted on doing them before the audit and that took a lot more time than was necessary;

(d)Ms Callingham had few computer skills and her typing was below standard;

(e)the day after the audit, Ms Callingham said to Mr Ellway “The files that they checked were out because Sarah had removed pages”.  Mr Ellway said, in a raised voice and gesturing with his hands, “Sarah has not removed pages from the files”.  Ms Callingham left the room.  Having reconsidered what he said, he was willing to apologise for his words when Ms Callingham “stormed back into the room and said in a raised voice that she disliked the fact that her integrity might have been questioned”.  She left the room again.  About five minutes later, Ms Berridge said that Ms Callingham had gone home to work.  Mr Ellway could not specifically recall the word “sabotage” being used by either himself or Ms Callingham in their conversation.  He did not believe that Ms Callingham was ever trying to deliberately sabotage the business, but she may have been inadvertently sabotaging it by some of her mistakes;

(f)after Ms Callingham started with Easy Care, he noticed a number of mistakes being made.  She was not communicating with Ms Hamilton or anyone else about the arrangements she made.  Rostering was taken from her because of her mistakes;

(g)for safety reasons, there was an agreement with all staff that vehicles are backed in so that cars can be driven straight out without trying to reverse or turn, and

(h)Ms Callingham never asked for the business’ financial records before starting negotiations for the purchase.  Ms Cooper required the money up front, but Ms Callingham asked to pay over an unspecified period.

1. Ms Berridge makes the following points in her statement of 19 April 2007:

(a)she started with Easy Care as an administrator in 1992;

(b)Ms Callingham was a friendly person, but required a lot of help with the computer system;

(c)in February 2006, Ms Berridge was asked to do the rostering and the Department return for Medicare, as well as other Department correspondence that had not been done in a proper or timely manner;

(d)on Friday 9 March 2007, Ms Callingham arrived and asked Mr Ellway how the audit went.  He replied that it all went well.  He then picked up a file and walked over to Ms Callingham and said “This is what we are going to do in future with the files”.  Ms Callingham replied, “I didn’t do anything, it is not my fault if anything was wrong with them, it’s Sarah, she took things”.  Mr Ellway shouted back that it was not Sarah’s fault.  Ms Berridge left the room to make a coffee.  Though she could hear Ms Callingham and Mr Ellway shouting to each other, she was not certain of what was said.  Ms Callingham left the office in tears and went to her car to get some cigarettes.  When she returned, she started shouting at Mr Ellway again and said “You can fuck off, I have never been spoken to like this before”.  Ms Berridge went outside and was later joined by Ms Callingham, who was crying and shaken up.  She said she’d had enough and was going home.  Ms Berridge said she was shocked, “Because she had never heard Stewart lose it like that before”, though she had seen Ms Callingham yell and scream in the past;

(e)when Ms Callingham returned to work on the following Tuesday, she came in with a white handkerchief that she waved at the front door saying “I’m sorry about what happened Friday”;

(f)Ms Berridge also overheard Ms Callingham’s conversation with Ms Cooper about the parking.  She heard Ms Cooper say, “There’s nothing to talk about” and Ms Callingham say, “I can’t reverse, it hurts my back”.  Ms Cooper had a raised voice and slammed the door when she left.  Ms Callingham was crying and muttering to herself, but worked for the rest of the day;

(g)Ms Callingham often complained about Ms Hamilton and her children.  They didn’t get along;

(h)at around the audit time, Ms Berridge saw Ms Hamilton replace file covers and remove some blank assessment forms from the files, and

(i)Ms Berridge felt that Ms Callingham was an emotionally driven person who, at times, had been difficult to work with.  Ms Callingham was easily stressed and any negative criticism was taken to heart.

1. In response to the factual investigation in general, and the above statements in particular, Ms Callingham prepared a detailed statement, with attachments, on 1 May 2008.  Her relevant responses can be summarised as follows:

(a)when she started with Easy Care, she made several roster mistakes because she was working off an old roster form given to her by Ms Hamilton.  There were one or two subsequent minor problems where she was not given all phone messages by Ms Hamilton;

(b)Ms Hamilton was unreliable and uncaring.  Ms Callingham annexed letters of complaint from clients, allegedly about Ms Hamilton’s allocations;

(c)she rejected the suggestion that clients did not want her in their homes, saying that she got on well with clients and their families.  She admits there were two very difficult clients who she referred to Ms Cooper;

(d)from the time she started with Easy Care, records were not up to date and she spent many hours flagging the  files that needed attention, which she gave to Ms Cooper.  The files were still not up to date by the time of the audit;

(e)in respect of the alleged error in the return to the Department of Health and Ageing, that mistake was made by Ms Hamilton;

(f)Ms Callingham says that Ms Cooper only once previously raised the parking issue.  In mid 2006, she said, “Why don’t you back in”.  Ms Callingham replied that it was easier on her back if she drove in and reversed out.  A month or so later, she had a similar conversation with Mr Ellway.  Ms Callingham was upset by Ms Cooper’s note about the parking because there were no rules about the parking;

(g)had she been asked to leave, she would have done so;

(h)the allegation that clients did not want Ms Callingham in their homes was false;

(i)the investigators noted that Ms Hamilton’s children were in and out of the office during their attendance and were disruptive, noisy, and interfered with paperwork and equipment.  At one point one of the children turned off the investigator’s computer, resulting in the loss of some data, but Ms Hamilton took no steps to control them, and

(j)Ms Cooper never told Ms Callingham that there was any issue with her performance.  So far as Ms Callingham was aware, administrative duties were taken from her and given to Ms Hamilton because Ms Hamilton had little to do.

Medical Evidence

1. Ms Callingham’s medical case is from her general practitioners, Dr Nicol and Dr Coleman, and her psychiatrist, Dr Butler.

1. The first medical certificate is a non WorkCover certificate from Dr Nicol dated 20 March 2007, which merely declared Ms Callingham unfit for work from that date until 25 March 2007, but gave no diagnosis.  The next certificate is a WorkCover certificate from Dr Coleman declaring her unfit from 23 to 30 March 2007 because of “anxiety/stress/work related”.  The doctor has also marked “yes” to the worker’s employment being a substantial contributing factor to the injury.  In his next certificate, dated 30 March 2007, Dr Coleman declared Ms Callingham unfit from that date until 16 April 2007, again because of “stress/anxiety”.

1. Dr Nicol, Ms Callingham’s general practitioner since February 2001, reported to Ms Callingham on 29 May 2007.  He noted her longstanding work-related back injury (a herniated disc at L5/S1), which caused her chronic back and leg pain and for which she took intermittent panadeine forte.  He also recorded that she had been prescribed anti-depressant medication (Zoloft) in 2001, when she was seeing Dr Butler and suffering from anxiety and depression.  He added that he had seen her approximately every two or three months over the previous six years and, from a mental health perspective:

“Robyn was doing very well and has been for several years now and her anxiety/depression has not been an issue until she reported stresses [sic] at work on the 20^th March 2007 when she described being upset, anxious, angry and [having] decreased mood.  She told me this was a result of alleged harassment at her current work place.”

1. When he saw her on 17 May 2007, she had left her job and her mood had gone back to normal “with no stresses” [sic] and feeling completely well.  He assumed that “the immediate stresses/harassment at work would be a substantial contributing factor to the period of stress/anxiety she was undergoing around the 20^th March”.  In his opinion, if the alleged harassment could be proven objectively, then “of course” it would be a “significant contributing cause to stresses” [sic] and would be work related. 

1. On referral from Dr Nicol, mainly to get a report for her workers compensation claim, Dr Butler saw Ms Callingham on 27 June 2007.  Dr Butler saw her on four occasions between June and September 2007.  He recorded that he had treated her between March 2001 and August 2002 for a Chronic Adjustment Disorder with Depressed Mood due to her back injury.  However, for most of the time since August 2002, she had been mentally well and had made a good recovery though still suffered from chronic back pain and leg pain.

1. He noted that for much of the time while working for Easy Care, Ms Callingham was trying to sort out with the owner how she could buy the business.  Ms Callingham had numerous complaints about the way Easy Care treated her.  These included:

(a)Ms Hamilton’s children were often in the office making a lot of noise and making it difficult for Ms Callingham to work;

(b)there were problems with documentation, notes and filing, which Ms Callingham tried to sort out as she was concerned that the deficiencies would be picked up in an audit and ruin her reputation as a nurse and administrator;

(c)she was particularly upset when Ms Cooper allocated Ms Callingham’s usual job of rostering, to Ms Hamilton;

(d)she felt that Ms Hamilton was regularly undermining her position;

(e)there had been numerous arguments between Ms Callingham and Ms Cooper, and

(f)on one occasion she was accused of “sabotaging” the business.

1. In late 2006 and early 2007, Ms Callingham started to get fluctuating depressed moods, often felt tired, was eating poorly, was sleeping poorly, and losing weight.  She worried a lot about the problems at work.  On 16 March 2007, she had a heated argument with Ms Cooper about how she had parked her car. 

1. He could find no evidence of any symptoms of depression or any other ongoing mental disorder, though she described feelings of depression and anger earlier in the year, with difficulty sleeping, impaired appetite and loss of weight.  She also had a lot of back, leg and hip pain, noting she now needs an operation on her hips.  During her sessions with Dr Butler she appeared quite normal in her mood and said she was sleeping and eating better.  Whilst there were no signs of any ongoing mental disorder, Dr Butler felt she did have some feelings of depression earlier in 2007, but not “severe enough to warrant a diagnosis of a mental disorder at that time either”.  Her main problems leading to the feelings of depression in early 2007 were her worsening back, hip and leg pain, and the associated disability, along with her distress at not being able to buy the business.  He also noted the arguments with the employer, which he described as “mainly related to personality clashes and difficulties associated with her attempts to buy the business”.  Ms Callingham remained on Zoloft, which Dr Butler recommended that she continue to take.

1. QBE referred Ms Callingham to Dr Vickery, consultant psychiatrist, for assessment on 20 April 2007.  In his report of 26 April 2007, he recorded Ms Callingham’s symptoms as being:

(a)inability to eat for the previous six months, resulting in a loss of 20 kilograms;

(b)“loss of interest in everything”, resulting in her spending days in bed;

(c)nocturnal panic attacks associated with difficulty breathing, heart palpitations, difficulty relaxing and muscle tension, and

(d)bad thoughts about people from work with fear of losing control associated with her constant “self talk”.

1. Dr Vickery noted Ms Callingham’s prior back injury, and that she had been on Zoloft since 2001 and had difficulty accepting her back injury and having to sell her home at the time. 

1. In respect of the current claim, Dr Vickery recorded that Ms Callingham agreed to buy the business from her employer, but in 2007 the owner declined to sell.  Ms Callingham was quite distressed at the time and felt “numb”.  She had tolerated various stressors associated with managing the company and had “kept going” and assisted with the audit in March 2007.  Mr Ellway accused her of sabotaging the business, however, it was the owner’s daughter who was responsible for those aspects of the business that had been criticised.  Ms Callingham became emotional and left work.  On 16 March 2007, Ms Callingham became emotional after speaking to the owner about how she parked her car.  Ms Callingham reported the onset of panic attacks, difficulty eating, sleep disturbance, and weight loss.  There were also financial stressors, as she was unable to pay for a consultation with her general practitioner.  She was anxious about her future.  She was aware of being a perfectionist, but felt she did not take things so personally now.

1. Dr Vickery noted Ms Callingham had a depressed affect and raised anxiety, but no evidence of paranoia, thought disorder or cognitive impairment.  He diagnosed her as being “depressed and anxious”, which was consistent with her pre-existing condition for which she had been taking anti-depressant medication since 2001.  She was not considered fit for her pre-injury duties, but was fit for a less demanding position.  Whilst he did not consider her incapacity was due to a work injury, he felt that she would benefit from psychotherapy and that her prognosis was guarded without further treatment.

1. In answer to the question of whether he thought Ms Callingham had suffered an aggravation of a pre-existing or underlying condition, Dr Vickery said, “Mrs Callingham has suffered a relapse of a pre-existing condition”.  On the issue of whether Ms Callingham’s employment was a substantial contributing factor to her condition, he said that Ms Callingham had experienced subjective stressors in her dealings with the owners, however, there was no objective evidence of harassment, bullying or victimisation.  In view of her prior psychological history, he considered that her current condition was pre-existing and that her employment was not a substantial contributing factor to it. 

1. QBE forwarded certain documents to Dr Vickery (presumably the factual investigation report) and he provided a supplementary report on 3 May 2007.  He stated that having read all of the factual information, it was his opinion “there is no objective evidence of harassment, bullying or victimisation by Mrs Callingham’s employer or in the workplace situation”.  He therefore reaffirmed the conclusion he expressed in his first report.

THE ARBITRATOR’S FINDINGS

1. In his Statement of Reasons for Decision (‘Reasons’) the Arbitrator identified the issue for determination to be “Is the Applicant’s claim for total incapacity and Section 60 expenses supported by the medical evidence?”.

1. In order for Ms Callingham to establish injury, the Arbitrator stated that she had to satisfy the Commission that she was exposed to harassment and victimisation and/or bullying which caused her to become incapacitated and for which she incurred medical expenses (Reasons, paragraph 21).  Ms Callingham also had to establish that there was a causal link between the incidents of harassment, victimisation and bullying, and her incapacity and her medical expenses (Reasons, paragraph 22).

1. He did not accept the evidence from the general practitioners.  Dr Coleman did not provide an explanation as to the contents of his medical certificates, and Dr Nicol did not include in his report any of the incidents of harassment alleged by Ms Callingham and strongly qualified his opinion as to whether work was a substantial contributing factor.  Dr Nicol’s history of Ms Callingham being “upset, anxious, angry and [having] decreased mood” was not consistent with the symptoms noted by the two psychiatrists in the case.  Further, the language used in the report was such that it could not be accepted as supporting Ms Callingham on her claim (Reasons, paragraph 14(b)).

1. Dr Butler’s evidence placed greater emphasis on Ms Callingham’s orthopaedic injuries as against any mental problems flowing from her failure to buy the business.

1. The Arbitrator stated that Dr Vickery’s opinion was significant, as he saw her mid way between the closed period claim and his history included allegations of harassment, bullying and victimisation.  Dr Vickery also detailed the history of the previous depression and panic disorder for which she received treatment in 2001, and that that treatment (Zoloft) continued despite efforts to cease. 

1. He therefore preferred Dr Vickery’s evidence and concluded that any psychological or psychiatric condition suffered by Ms Callingham during her employment with Easy Care resulted from her initial orthopaedic injury in 1993 and could not be attributed to her employment with Easy Care.

1. In view of his findings on the medical issue, the Arbitrator did not make a detailed analysis of the factual issues involving sections 9, 9A and 11A of the 1987 Act.

ISSUES IN DISPUTE

1. Ms Callingham’s solicitor has not complied with Practice Direction No 6, which sets out the procedures to be followed in preparing an appeal under section 352 of the 1998 Act.  He has not properly identified the grounds of appeal, but has merely set out a commentary on the Arbitrator’s findings.  That is most unsatisfactory.  As the Practice Direction makes clear, parties are required to precisely state the grounds on which they seek to appeal and to then provide submissions addressing each ground. 

1. Doing the best I can from the submissions filed, the issues on appeal appear to be whether the Arbitrator erred in:

(a)failing to consider matters (submissions, paragraph 9);

(b)misreading Dr Butler’s report (submissions, paragraph 11);

(c)relying on parts of Dr Vickery’s report and not considering the whole of the medical evidence from Dr Vickery and the other doctors in the case (submissions, paragraph 12);

(d)failing to give proper reasons for accepting Dr Vickery’s evidence (submission, paragraph 13);

(e)failed to note that Dr Vickery ignored Ms Callingham’s list of complaints and ignored other evidence (submissions, paragraphs 16 and 17);

(f)failed to note that Dr Vickery did not deal with the cause of Ms Callingham’s relapse (submissions, paragraphs 18 and 24);

(g)giving undue weight to Dr Vickery’s evidence, when Dr Vickery had not properly stated the issues or the factual matters before he expressed his opinion (submissions, paragraph 30), and

(h)had no regard to the evidence (submissions, paragraph 35).

SUBMISSIONS

1. Ms Callingham submits:

(a)Dr Vickery did not refer to the cause of the relapse he considered Ms Callingham suffered;

(b)the relapse was caused by the stressors and items set out in the Application.  There seems to be no real dispute that there were matters at work with Easy Care that gave rise to a great deal of anxiety and were a real cause of Ms Callingham’s depression and an anxiety state.  It seems obvious that the two are naturally connected and that is what the medical evidence says;

(c)Dr Butler did not state, as the Arbitrator has asserted at paragraph 23(c) of his Reasons, that Ms Callingham’s psychiatric condition resulted from her orthopaedic injury;

(d)there is ample evidence that there were a number of incidents at work and of the effect that those incidents had on Ms Callingham.  The Arbitrator failed to consider those factual matters;

(e)the Arbitrator had undue regard to Dr Vickery’s evidence, and

(f)the Arbitrator failed to have regard to the evidence regarding the incidents upon which the claim is based and erred in not having regard to all the evidence.

1. Easy Care submits:

(a)Ms Callingham’s submissions are merely a narrative of her solicitor’s interpretation of the Arbitrator’s decision and do not state with clarity the grounds of appeal relied upon;

(b)there was no error by the Arbitrator;

(c)the Arbitrator’s acceptance of Dr Vickery’s opinion was a finding of fact;

(d)there is no evidence that the Arbitrator misread Dr Butler’s report, or that it led to a denial of natural justice;

(e)it was open to the Arbitrator to accept Dr Vickery’s opinion, and

(f)the Arbitrator did have regard to all the evidence.

DISCUSSION AND FINDINGS

1. I have found the parties’ submissions in this matter of limited assistance in attempting to resolve the issues sought to be argued on appeal.  Notwithstanding these shortcomings in the preparation of the appeal, I have concluded that the Arbitrator did err in his approach to the matter, and in his conclusion.

1. The case could not be resolved by merely considering the medical evidence and excluding the lay evidence that formed the basis of the claim.  The Arbitrator failed to properly consider whether Ms Callingham had recovered from her previous psychological condition and failed to assess the whole of the evidence to determine the nature of her current condition and whether that condition resulted from the alleged work incidents with Easy Care. 

1. Dr Vickery’s opinion, which the Arbitrator accepted, that Ms Callingham suffered a relapse of a pre-existing condition, did not provide an answer to the question of whether she suffered an injury in the course of or arising out of her employment with Easy Care.  Neither Dr Vickery, nor the Arbitrator, considered the impact of Ms Callingham’s employment on the development of her symptoms.

1. The Arbitrator also misstated the issues for determination. The issues in dispute in the section 74 notice were whether Ms Callingham had sustained an injury and, if so, whether her employment was a substantial contributing factor to that injury. Those issues could not be answered by merely posing the question: “Is the Applicant’s claim for total incapacity and Section 60 expenses supported by medical evidence?”. The determination of the issues required a consideration of all of the evidence, both medical and lay. The Arbitrator did not do that, but referred only to the medical evidence.

1. These errors require that the matter be re-determined.  As the Arbitrator heard no oral evidence, and in view of the quantum of compensation involved, it is appropriate that I re-determine the matter rather than remit it for a further arbitration.

1. Whilst I do not accept all of Ms Callingham’s complaints about her working conditions with Easy Care, I find that several of her allegations have substance and that they caused her distress and resulted in her developing a psychological injury in the nature of depression and anxiety.  My reasons are as follows.

1. First, several issues, such as who was responsible for the errors in the rosters, the personality clash between Ms Callingham and Ms Hamilton, and their impact on Ms Callingham are difficult to assess in terms of who was responsible for what and exactly what happened and when.  Nevertheless, those matters, regardless of who may have been responsible for them, clearly did affect the efficient running of the business and made for a stressful working environment for Ms Callingham.  It seems equally clear, based on Ms Berridge’s evidence, which I accept, that Ms Callingham was not as competent at administrative duties as she thought.  On the other hand, I have real doubts about Ms Cooper’s allegation that clients called the office and said they did not want Ms Callingham in their homes.  This allegation is unsupported by any corroborative evidence and is contrary to the evidence from Ms Boundy and Mr Williams, which I accept.  In any event, Ms Callingham’s competence and work performance is not an issue in the case, as Easy Care never relied on section 11A of the 1987 Act. 

1. Second, I accept that the working conditions at Easy Care were far from ideal because of the presence of small children, their toys and other objects in the office.  Such a distraction was most unsatisfactory and understandably made Ms Callingham’s working environment more difficult and stressful than it should have been.

1. Third, I accept that a major altercation occurred between Mr Ellway and Ms Callingham concerning work issues (clients’ files) on 9 March 2007.  Both parties raised their voices and Ms Callingham agrees that she swore at Mr Ellway.  Precisely what Mr Ellway said is unclear, but I infer from Ms Berridge’s evidence, that she had never heard him “lose it like that before”, that Mr Ellway’s manner was, at the least, less than temperate.  Mr Ellway’s statement is quite vague about this exchange.  I infer from the fact that he was intending to apologise to Ms Callingham for his words that either his language or his manner was inappropriate.  More importantly, he did not deny accusing Ms Callingham of attempting to sabotage the business, but merely said that he did not specifically recall using that word.  I accept Ms Callingham’s evidence that Mr Ellway did say “We think you are sabotaging the business” and that Ms Callingham took great offence at that comment and that she started to shake and cry during the altercation.

1. Fourth, I accept that Ms Callingham believed Ms Cooper and Mr Ellway were doing their best to make her leave and that she felt a lack of support from management.  Whether they were in fact trying to make her leave is unclear, but the fact that Ms Cooper suggested in December 2006 that she might consider leaving adds support to Ms Callingham’s concern.  The fact that on 19 March 2007, Ms Cooper sought advice about dismissing Ms Callingham also adds weight to this conclusion. 

1. Fifth, I accept that the note written by Ms Cooper on 16 March 2007, relating to the parking of Ms Callingham’s car, and the altercation that followed the receipt of that note, also caused Ms Callingham considerable distress.  I accept the independent evidence of Ms Boundy, Mr Williams and Ms Roscarel that there was no set rule or practise as to how cars were parked at the premises.  In the light of their evidence, it seems unlikely that Ms Cooper asked Ms Callingham on a number of occasions to reverse her car into the parking area, as she claims.  It is therefore not surprising that Ms Callingham found the note offensive.  I also accept, based on Ms Callingham’s evidence, corroborated by Ms Berridge, that Ms Cooper’s manner towards Ms Callingham, when she attempted to discuss the note and explain why she could not reverse her car, was curt and contributed to Ms Callingham’s feeling that management didn’t care about her and that it was the last straw, as it demonstrated that she was unable to resolve any situation by discussion with Ms Cooper.  That Ms Callingham was distressed by this incident is corroborated by Ms Berridge who saw Ms Callingham crying and muttering to herself after Ms Cooper raised her voice and slammed the door as she left.

1. It was then that Ms Callingham felt unable to continue and sought medical treatment from Dr Nicol.  Whilst I place little weight on the medical certificates from Dr Nicol and Dr Coleman, as they clearly do not comply with the requirements of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, a proper and fair assessment of the case requires that the medical and lay evidence be viewed as a whole.

1. Dr Nicol’s report of 29 May 2007 is also of limited assistance as it did not provide a diagnosis of a psychiatric or psychological injury, but merely referred to Ms Callingham “being upset, anxious, angry and [having] decreased mood”.  This merely listed some of Ms Callingham’s symptoms without giving a diagnosis.

1. However, Dr Nicol’s report is important in that it confirms Ms Callingham’s evidence, which I accept, that from a mental health perspective she was doing very well for several years prior to the events at work with Easy Care. This evidence is also confirmed by Dr Butler and effectively destroys Dr Vickery’s assertion (dealt with in more detail at [70] below) that Ms Callingham’s psychological condition was pre-existing.

1. Dr Butler’s evidence, however, is also of limited assistance on the issue of injury, as he did not see Ms Callingham when she was unwell.  When he did see her she had no psychological symptoms and, not surprisingly, he found her mood to be normal and he recorded that she was sleeping and eating well.  As a result, he concluded that there were no signs of any ongoing mental disorder, though she had such a disorder in the past.  Notwithstanding that he had not seen her when she was unwell, he speculated that whilst she may have had some feelings of depression earlier in 2007, they were not severe enough to warrant a diagnosis of a mental disorder.  Therefore, his evidence does not support a finding that Ms Callingham suffered a psychological injury in March 2007.

1. However, Dr Butler did not conclude that Ms Callingham’s condition during the relevant closed period resulted from her orthopaedic injury, as the Arbitrator found at paragraph 23(c) of his Reasons.  He thought that her main problems leading to feelings of depression in early 2007 were her worsening back, hip and leg pain, and her distress at not being able to buy the business.  There is no contemporaneous evidence from Dr Nicol or Dr Coleman that Ms Callingham’s orthopaedic symptoms were a significant factor in the development of her psychological symptoms in March 2007, and I do not accept this part of Dr Butler’s evidence.  He added that Ms Callingham was fit, from a psychiatric point of view, to be employed four days per week, as she was previously, though he asked her to continue to take Zoloft.  He thought her worsening back, hip and leg pain would prevent her from working until she had a hip operation. 

1. Dr Vickery’s assessment that Ms Callingham had a depressed affect and raised anxiety was not inconsistent with Dr Nicol’s view that she was upset, anxious and had decreased mood.  After taking a detailed history of the events at Easy Care, noting Ms Callingham’s symptoms, and conducting a full mental state examination, Dr Vickery concluded that Ms Callingham was depressed and anxious.  His conclusion was consistent with Ms Callingham’s complaints of weight loss, insomnia and nocturnal panic attacks, and I accept it as an accurate diagnosis of her injury.  That condition was not a mere emotional impulse, but was a psychological disorder with physiological effects (weight loss and shaking).

1. The next question is: what caused that psychological injury?  Whether a worker’s injury has resulted from a work event or events requires a “commonsense evaluation of the causal chain” (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Kirby P at 463).

1. Dr Vickery’s assertion that Ms Callingham’s condition was consistent with her pre-existing condition is not consistent with the overwhelming weight of the evidence in the case, which I accept, that she had recovered from her previous psychological condition.  Further, his opinion that Ms Callingham suffered a “relapse of a pre-existing condition” did not properly deal with the issues in dispute, as it failed to consider the cause of that relapse, if her condition was a relapse.  Ms Callingham’s psychological condition was contributed to by several factors.  As she was already on anti-depressant medication, and had previously suffered from depression and anxiety, she was clearly a vulnerable person.  However, the fact that she functioned well for several years until the stressful events with Easy Care confirms the opinions of Dr Butler and Dr Nicol, which I accept, that she had made a good recovery from the Adjustment Disorder with Depressed Mood diagnosed in 2002.  The fact that a worker has a pre-existing vulnerability does not automatically prevent him from recovering compensation in the event that he receives a further injury.  Employers must take their employees as they find them (State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007 5 DDCR 287 at [40] (‘Chemler’)).

1. The fact that Ms Callingham performed her normal work and daily activities without restriction until the events now complained of, that she was observed to be upset, crying, shaking and distressed at work on 9 and 16 March 2007, because of events that happened at work in the course of her employment, and that she sought medical treatment for her symptoms at the first appointment she could get with Dr Nicol on 20 March 2007, all point to her injury having arisen out of or in the course of her employment, and I make that finding.

1. The next question is: was her employment a substantial contributing factor to her injury?  This is a “distinct and additional question to that of the course of employment” (per Hodgson JA at [33] in McMahon v Lagana [2004] NSWCA 164). In looking at whether employment was a substantial contributing factor to an injury, it is “the strength of the causal linkage that is in question” (per Giles JA at [22] in Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46).

1. Dr Vickery seems to have concluded that Ms Callingham’s employment was not a substantial contributing factor to her condition because she experienced “subjective stressors in her dealings with the owners”, but, in his assessment, there was no objective evidence of harassment, bullying or victimisation.  I make the following observations about this statement.  First, Dr Vickery imposed a test that is not known in law.  Second, the assessment of the lay evidence, and the weight to be attached to it, is a matter for the Commission, not a medical practitioner.  Third, it is not clear what Dr Vickery meant by “subjective stressors” and “objective evidence”.  If he meant there was no impartial or independent evidence to support Ms Callingham’s complaints about the events that occurred at work, he was in error.  Ms Callingham’s complaints were, to a large extent, corroborated by Ms Berridge.  If he meant that Ms Callingham’s claim only arose from her perception of the events that happened at work and, therefore, she had no entitlement to compensation, such a view is inconsistent with recent Court of Appeal authority. 

1. The argument that a “perception of harassment is not a sufficient basis to support a finding of ‘injury’ under the 1987 Act” was considered and rejected by the Court of Appeal in Chemler.  The “perception issue” has its origins in the authority of Townsend v Commissioner of Police (1992) 25 NSWCCR 9 (‘Townsend’) where McGrath CJ said, at [235]:

“My conclusions are that the anxiety state resulted from the applicant’s erroneous perception of external events and not from his reaction to real events which were potentially damaging.”

1. This authority was interpreted by Neilson CCJ (at [53]) in Yeo v Western Sydney Area Health Service (1999) 17 NSWCCR 573 (‘Yeo’), as holding:

“…that a misperception by a worker of otherwise innocuous matter, which misperception leads a worker to develop a psychiatric condition, does not constitute injury arising out of or in the course of employment.”

1. Spigelman CJ considered the above authorities in Chemler, and observed (at [54]):

“In my opinion, this states the authority of Townsend too broadly. As McGrath CJ Comp Ct indicated, as quoted above, a ‘perception of real events’, which are not ‘external events’, can satisfy the test of injury ‘arising out of or in the course of employment’.”

1. Basten JA noted (at [69] of Chemler):

“If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established. Accordingly, no error in point of law was identified by this ground.”

1. A worker’s perception of an event will naturally involve his or her subjective assessment of the particular event.  A worker’s perception of real events, which are not external, can satisfy the test of causation in a claim for compensation under the 1987 Act.  In the present matter, the critical events that caused Ms Callingham’s injury (see [58] to [62] above) were real events that happened at work during working hours over work issues.  Whilst to characterise those events as “harassment, bullying and victimisation” was, arguably, not necessarily accurate, the use of that terminology was of no consequence, as the employer was not misled as to the nature of the case it had to meet.  Those work events caused Ms Callingham’s psychological injury, which Dr Vickery diagnosed as depression and anxiety.

1. There is no persuasive evidence that it was probable that the same or a similar injury would have happened anyway at about the same time or the same stage of Ms Callingham’s life, if she had not been working for Easy Care.  Her health was good in the period leading up to her injury.  The fact the she remained on Zoloft while she worked for Easy Care and that she had continuing back and leg symptoms, were factors that may well have made her more vulnerable to sustaining a psychological injury, but they did not prevent her employment from being a substantial contributing factor to her injury.  Employment must be “a” substantial contributing factor to an injury, not “the” substantial contributing factor.  It follows that I am comfortably satisfied, and I find, that Ms Callingham’s employment with Easy Care up to and including 16 March 2007 was a substantial contributing factor to her psychological injury. 

1. I also find, based on Dr Nicol’s undisputed evidence, that the effects of her psychological injury ceased on or about 17 May 2007.

1. The uncontested evidence from Dr Nicol and Dr Coleman is that Ms Callingham was totally unfit from 20 March 2007 until 16 April 2007.  Dr Vickery saw Ms Callingham on 20 April 2007, when he thought that she was unfit for her pre-injury duties, but fit for a less demanding position.  When Dr Nicol saw Ms Callingham on 17 May 2007, he stated that she was “feeling completely well”.  Precisely when Ms Callingham felt well is not addressed in the evidence. 

1. Based on this evidence, I find that Ms Callingham was totally unfit for work from 20 March 2006 to 16 April 2007 and partially unfit from 17 April 2007 until 16 May 2007. She is entitled to an award at her current weekly wage rate ($548.88 per week, as per the Employer’s Report of Injury form dated 23 July 2007) for the period of total incapacity. In respect of the period of partial incapacity, I find that Ms Callingham’s earnings but for her injury were $548.88 per week and that her ability to earn in some suitable employment, such as part time office work for 24 hours per week at $20.00 per hour, was $480 per week. The resulting difference is $68.88 per week. There are no reasons to reduce this amount in the exercise of the section 40(1) discretion.

1. Ms Callingham also claims hospital and medical expenses under section 60 of the 1987 Act in the sum of $2,469.00, though that total includes the cost of a medico legal report from Dr Butler. It also includes a number of accounts from Dr Butler that were incurred after 17 May 2007, the date on which I have found Ms Callingham had recovered from her injury. Dr Butler’s evidence does not support a claim that his consultations were reasonably necessary as a result of Ms Callingham’s injury and the cost of those consultations is not recoverable. Therefore, Easy Care is only liable for Ms Callingham’s reasonable medical expenses incurred from 20 March 2007 up to and including 17 May 2007.

DECISION

1. The Arbitrator’s determination of 18 August 2008 is revoked and the following orders made:

“1.Award for the applicant under section 36 of the Workers Compensation Act 1987 in the sum of $548.88 per week from 20 March 2007 until 16 April 2007 and under section 40 in the sum of $68.88 per week from 17 April 2007 until 16 May 2007.

2. The respondent is to pay the applicant’s reasonable hospital and medical expenses under section 60 of the Workers Compensation Act 1987 incurred in the period from 20 March 2007 up to and including 17 May 2007.

3.The respondent is to pay the applicant’s costs as agreed or assessed under Table 1 Item F of Part B of Schedule 6 of the Workers Compensation Regulation 2003.”

COSTS

1. The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

Bill Roche
Deputy President

26 November 2008

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE