Caylak v Commonwealth Bank of Australia
[2007] NSWWCCPD 150
•4 July 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Caylak v Commonwealth Bank of Australia [2007] NSWWCCPD 150
APPELLANT: Vasfiye Caylak
RESPONDENT: Commonwealth Bank of Australia
INSURER:Self Insured
FILE NUMBER: WCC16397-06
DATE OF ARBITRATOR’S DECISION: 19 February 2007
DATE OF APPEAL DECISION: 4 July 2007
SUBJECT MATTER OF DECISION: Psychological injury; sufficiency of evidence; factual finding of no injury.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Slater & Gordon
Respondent: TurksLegal
ORDERS MADE ON APPEAL: Paragraphs one and two of the Arbitrator’s determination dated 19 February 2007 are revoked and the following order made:
“Award for the Respondent Employer.”
Paragraph three of the Arbitrator’s determination dated 19 February 2007 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Vasfiye Caylak (‘the Appellant Worker/Ms Caylak’) started work for Colonial Bank in Wollongong on 31 January 2000 as a customer service officer. That bank was taken over by the Commonwealth Bank of Australia (‘the Respondent Employer/the bank’) in 2001 and Ms Caylak was transferred to its Corrimal branch where she worked 20 hours per week as a teller. A number of issues arose about Ms Caylak’s performance at work. Those issues came to a head in August 2002 when Ms Caylak received an unsatisfactory report from another staff member. On 14 August 2002 she was spoken to by her manager, Ann-Marie Galea, and, separately, by the area manager, Leanne Lehrer. Ms Caylak resigned in the course of her conversation with her manager. Though she later changed her mind and sought to withdraw her resignation, that was not permitted. Proceedings seeking reinstatement in the Industrial Commission were unsuccessful, although it would appear that these proceedings were settled by the parties.
On 8 August 2003 Ms Caylak submitted a claim form alleging that as a result of the events at work on 14 August 2002 she suffered from depression. Liability for her claim was declined on 3 September 2003 and her Application to Resolve a Dispute (‘the Application’) was registered in the Workers Compensation Commission (‘the Commission’) on 18 October 2006. In her Application she alleged that she suffered from an “adjustment disorder with depression and dysthymia” as a result of being “harassed, inappropriately reprimanded, and humiliated by the manager of the Respondent’s Corrimal branch” on 14 August 2002. She claimed weekly compensation from 15 August 2002 to date and continuing, medical expenses and lump sum compensation in respect of a 17% whole person impairment as a result of her medical condition.
By its Reply filed on 5 January 2007 the Respondent Employer disputed injury, incapacity, notice of injury and notice of claim, whether Ms Caylak’s condition had been caused by the bank’s reasonable action with respect to discipline, whether Ms Caylak’s medical expenses were reasonably necessary as a result of the injury and the extent of any permanent impairment suffered.
The matter was listed for conciliation and arbitration before a Commission Arbitrator on 1 February 2007 when Ms Caylak gave oral evidence and the parties made submissions. In a reserved decision delivered on 19 February 2007 the Arbitrator found in favour of the bank on the issues of injury and incapacity, and made an award in its favour.
By an appeal filed in the Commission on 16 March 2007 Ms Caylak seeks leave to appeal that decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Appellant Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
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.”
In the present matter no transcript is available of the evidence or submissions before the Arbitrator. On appeal the only reference to the oral evidence is by the Appellant Worker at paragraph 55 of her submissions where it is stated that Ms Caylak gave “oral evidence of her incapacity” at the Arbitration. The Arbitrator made no reference to Ms Caylak’s oral evidence in reaching her conclusion on the issue of injury. Neither party has submitted that the review under section 352 cannot proceed in the absence of the transcript. The Appellant Worker has not submitted that the Arbitrator has failed to have regard to relevant oral evidence given at the Arbitration. In these circumstances I believe I am in a position to properly and fairly conduct a review under section 352.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 19 February 2007, records the Arbitrator’s orders as follows:
“1.Award for the Respondent in respect of the Applicant’s claim for weekly compensation payments from the 14 August 2002 to date.
2.Award for the Respondent in respect of the Applicant’s claim for s40 [sic] of the Workers Compensation Act [sic] expenses.
3.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding there was “insufficient evidence to find that Ms Caylak’s symptoms arise from an injury at or in the course of employment, arising from the incidents at work on the 14 August 2002, or to find that the employment was a substantial contributing factor to any injury” (Appellant Worker’s submissions paragraph 2.6(1), quoting from the Arbitrator’s Statement of Reasons for Decision (‘Reasons’) paragraph 60);
(b)finding there was “insufficient evidence of total incapacity or of partial incapacity for an award of weekly payments” (Appellant Worker’s submissions paragraph 2.6(2), quoting the Arbitrator’s Reasons at paragraph 66), and
(c)finding that Ms Caylak’s medical and related expenses were not reasonably necessary as a result of a compensable injury.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134]. To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
DISCUSSION AND FINDINGS
Injury and Substantial Contributing Factor
Ms Caylak’s Version
Whilst Ms Caylak’s statement deals with a number of problems she experienced at work, her case before the Arbitrator was that she sustained a psychological or psychiatric injury as a result of exchanges that took place between her and her managers at work on 14 August 2002. There is no allegation that Ms Caylak suffered an injury as a result of the ‘nature and conditions’ of her employment in general. Therefore, I will focus mainly on the evidence dealing with the events of 14 August 2002.
As part of their training all staff at the bank were required to rate each other on the level of their customer service. This practice was called ‘mystery shopping’. Everyone at the branch would take a turn to ‘mystery shop’ other staff and each in turn would be ‘mystery shopped’. In August 2002 Ms Galea asked Julie Turner (another bank teller) to ‘mystery shop’ a number of staff, including Ms Caylak. As a result Ms Turner reported to Ms Galea that the Appellant Worker was “not up to standard with the manner [in] which she dealt with a customer” (see Ms Turner’s statement 22 August 2003, paragraph eight).
Just before work started on 14 August 2002 Ms Galea spoke to Ms Caylak in front of Ms Turner and another casual staff member in the staff room and said “your referrals are down, and the report that Julie did on you was way down.” At about 2.00pm or 2.30pm the area manager, Leanne Lehrer, spoke to Ms Caylak in her office. It is alleged that as Ms Caylak walked into the office Ms Lehrer started yelling at her and said words to the effect “if this happens again (she then clapped her hands together once) you are out of here. You did not look the customer in the eye” (Ms Caylak’s statement 21 August 2003, paragraph 16). Ms Lehrer said other things that the Appellant Worker did not recall but she recalled that Ms Lehrer did not let her speak and when she said “can I bring some things to your attention”, Ms Lehrer replied, “no, take it up with Anne-Marie”.
After this conversation Ms Caylak “felt very upset as if I was a criminal or rubbish and that I did not deserve what she had said to me” (Appellant Worker’s statement 21 August 2003, paragraph 17). A short time later Ms Caylak spoke with Ms Galea and said “ever since those two customers complained about me I have felt that you have picked on me, why?” She then started to cry and asked if she could resign without giving two weeks notice and Ms Galea replied “you should think about [sic] but if you do you will have to put it in writing” (Appellant Worker’s statement 21 August 2003, paragraph 17). Ms Galea then left the room and returned with the resignation papers, which Ms Caylak completed and then left.
Ms Caylak states that she spent the next three days at home in bed crying. The following Monday she phoned the personnel manager who advised her that a position was available at the Warrawong branch, if the resignation was withdrawn. Ms Galea would not allow the resignation to be withdrawn.
Ms Caylak added that Ms Turner did not normally work in her group and that she believed that Ms Galea asked Ms Turner to do the ‘mystery shop’ as part of a plan to get rid of her.
Following the above events Ms Caylak saw her general practitioner, Dr Azam, for counselling (Ms Caylak’s statement 16 January 2007, paragraph five) and commenced unfair dismissal proceedings that were “resolved by out of court settlement” (Ms Caylak’s statement 16 January 2007, paragraph six). She added that she did not intend to lodge a claim for compensation after her employment ceased as she thought she “would just get better and move on” (Ms Caylak’s statement 16 January 2007, paragraph seven). However, when she was referred to Dr Ali, a psychiatrist, in August 2003, she realised how serious her condition was and she then made a claim for compensation on 8 August 2003 (Ms Caylak’s statement 16 January 2007, paragraph eight).
The Bank’s Version
In her statement dated 21 August 2003, Ms Galea made the following points:
a) due to the amalgamation with Colonial there was a lot more work at the Corrimal branch and there were a lot of teller “discrepancies and her [Ms Caylak’s] customer referrals were not up to scratch but due to the workload I was unable to counsel her about these matter[s] in the first twelve months” (Ms Galea’s statement, paragraph nine). In addition, due to the number of people in her section she was unable to pinpoint the discrepancies to Ms Caylak;
b) after 12 months a lot more discrepancies were occurring and she was able to “pinpoint” them to Ms Caylak and she spoke to her on many occasions “about her discrepancies and problems with customer referrals” (Ms Galea’s statement, paragraph 10). Ms Caylak seemed to listen but was always in denial about the specific incidents and continuously blamed other members of staff for her shortcomings (Ms Galea’s statement, paragraph 11);
c) Ms Galea often received complaints from customers about the manner in which Ms Caylak spoke to them (Ms Galea’s statement, paragraph 12);
d) in order to assist staff with the ‘mystery shopper’ method used by head office, the branch developed its own internal system of the ‘mystery shopper’ where staff would rate each other on their attitude to customers and ability to sell bank products;
e) the ‘benchmark’ for the rating was 95 and a staff member with a rating below this level would be counselled by Ms Galea and coached. The ratings were not treated seriously “but only as a coaching tool” (Ms Galea’s statement, paragraph 15). Ms Galea believes that Ms Caylak took the rating far more seriously than was intended;
f) Ms Turner ‘mystery shopped’ Ms Caylak in early August 2002 and gave her a rating that was below the benchmark;
g) Ms Galea mentioned the rating to Ms Caylak and suggested that she “be aware of it”. On 14 August 2002 the regional manger, Annette Waterson, and the area manager, Ms Lehrer, were to visit the branch. Ms Galea spoke to Ms Caylak to explain to her that the managers would be looking at all staff to see that the proper procedures were being followed in the ‘mystery shopper’ format. The internal mystery shopper results were posted on a board in the lunchroom. She said to Ms Caylak, while pointing to the results (in which Ms Caylak scored only 68%), “you should pay particular concern to this area because the managers will be looking at this” (Ms Galea’s statement, paragraph 16);
h) later on that day Ms Lehrer told Ms Galea that she had conducted a ‘mystery shopping survey’ and rated Ms Caylak at 50%. Ms Lehrer then spoke with Ms Caylak in the office. After that conversation Ms Caylak appeared upset. Later Ms Galea spoke to Ms Caylak in the office when Ms Caylak said “don’t worry about it Anne-Marie, I am going to leave anyway. Do you think you can give me a couple of weeks off first” (Ms Galea’s statement, paragraph 18). After checking with head office, Ms Galea refused the request for time off. Ms Galea then said to Ms Caylak “you should reconsider what you are doing, why don’t you [go] home and think it through before making such a hasty decision”. She replied, “no, I just want to finish up”. Ms Galea then arranged for the necessary forms to be faxed through for Ms Caylak to sign;
i) Ms Galea then left Ms Caylak alone to complete the forms and again spoke to her saying, “Vicki, I really think you should reconsider this”. She replied, “no, I just can’t take it any more, I want to resign”. Ms Caylak then left the office, and
j) on 15 August 2002 Ms Galea forwarded the resignation forms to the area office. The following Monday Ms Galea received a telephone call from Ms Caylak asking to have her job back. Ms Galea explained that that was not possible because her resignation had been accepted.
Medical Evidence
As no report was tendered from Dr Azam, it is necessary to consider his notes in detail to piece together the relevant history. Ms Caylak attended on Dr Azam on 28 August 2002. The doctor’s notes are difficult to read but appear to record:
“sore neck / headache / nerves [sic] / difficulty sleeping since last 2 months
BP 112/76 P83 have [sic] resign [sic] from job Ads [sic] Nurofen Endep”
The Appellant Worker submits that the word ‘nerves’ is in fact ‘nausea’. I do not think this issue is critical to the outcome of the appeal. What is clear is that, save for the reference to the resignation, the notes do not refer to the events at work on 14 August 2002.
Ms Caylak again attended on Dr Azam on 9 September 2002 when her endep was increased to 20mg and she was “counselled” though it is not known what issues were discussed in the counselling. On 10 October 2002 Dr Azam recorded that her headache was better and that she had stopped endep and commenced on aropax and “filed a case in Industrial Court”.
On 9 November 2002 Dr Azam recorded Ms Caylak to have “sleep disturbance”. On 11 December 2002 the notes record “feels well less panic but feels lazy sleeping well”. On 24 December 2002 an entry records “dizzy/nausea”. The entry on 17 March 2003 reads “feels depressed again Ad: to continue Aropax 20mg”. On 30 May 2003 Dr Azam recorded that Ms Caylak “feels better” but the next entry on 16 July 2003 recorded “feels depressed / have [sic] stopped Aropax about 2 months ago feels empty lack of energy / lack of [indecipherable] felt life not worth living”. Ms Caylak was counselled and the next entry for July 2003 recorded “feels better today. Taking her medication”. An entry for August 2003 reads, “feels slightly better”.
The entry on 8 August 2003 reads:
“form filled. H/O unfair dismissal from work as a result developed anxiety / depression / insomnia”
The reference to “form filled” is a reference to Ms Caylak’s claim form that was completed on 8 August 2003. Paragraph 21 of the claim form reads:
“Performance discussed in front of other staff members & my manager. Serving customers & area manager called me to speak to me – she treated me like rubbish.”
On 8 August 2003 Dr Azam issued the first medical certificate in this matter. In it he recorded a date of injury of 14 August 2002 and described how the injury occurred as follows:
“Her performance was discussed by the manager in front of other staff members / later area manager yelled at her for not serving the customer properly.”
Later in August 2003 Dr Azam’s notes record that Ms Caylak was “self critical” and “guilty”. She was counselled and was “going to see psychiatrist next week”. This may be a reference to Ms Caylak’s appointment to see Dr Roberts, psychiatrist qualified by the Respondent Employer, on 27 August 2003.
Dr Azam saw Ms Caylak again in September 2003 for an upper respiratory tract infection. When seen for a second time in September 2003 (the exact date is not known as the copy clinical notes have chopped off the date on the left hand edge of the page) the words “counselling” and “lack of motivation lack of concentration” are recorded. At this attendance Ms Caylak was referred to Dr Ali.
Dr Ali recorded that Ms Caylak gave him a history of “mixed anxiety and depressive symptoms with a slow onset including depressed moods, sleep difficulty, tiredness, headache, nightmare, loss of confidence and difficulty in concentrating” (emphasis added) (report Dr Ali 31 October 2003). Dr Ali considered that Ms Caylak had an adjustment disorder with mixed emotional features (anxiety and depression), which were “essentially reactive to the situation. The difficulties at work appear to be the precipitating cause”.
In 2004 Ms Caylak attended on Dr Azam on three occasions: twice in February, complaining of a sore neck and to discuss blood test results (normal) and in November when it was noted that she was still under the care of Dr Ali and she was “counselled about [a] personal matter”.
There were no further attendances on Dr Azam until 21 September 2005. Unfortunately the entry for that date is very difficult to read. The following words can be deciphered: “was well until today. Was blasted by a workshop assistant regarding dispute over car servicing. Now feels shaky [indecipherable] frozen blood [sic] epigastric pain feels can’t breathe acute anxiety attacks last 12 months [indecipherable] to Turkey and been counselled by a psychiatrist over there now on Zoloft 50mg daily tried to work_didn’t work out counselled…[indecipherable]”.
The next entry is 17 March 2006. It records “H/O depression referred to Dr Ali”. On 3 May 2006 it was noted that Ms Caylak was “very sleepy depressed” and was “going to Turkey for treatment”.
Dr Ali prepared a more detailed report on 9 February 2006 addressed to Ms Caylak’s solicitor. The history recorded in this report is:
“She further told me that the manager, Ed Barry came into the picture later on and Ms Caylak alleged that she was discriminated by her, often she picked up on small things and complained about her not doing her duties properly.
There were also periods when she came back from a break and was reprimanded.
She told me that as a result of this constant nagging and other kinds of behaviour she gradually became very upset and her performance was affected.
She told me as a result of this she gradually developed anxiety and depressive symptoms which included feeling anxious, difficulty in sleeping, difficulty in relaxing and poor concentration.
She also lost confidence and had severe problems with her concentration. She also had suicidal ideas and on one attempt [sic] she attempted suicide.
She also had nightmares about her job and often could not sleep very well.
This also started affecting her social life and she sought help from her GP, who gave her antidepressant medication and later on she was referred to me.
On further examination of her mental state there was evidence of anxiety and depressive symptoms but she denied having any hallucination and did not express any delusional ideas. There was no evidence of thought disorder, memory disturbance or any other problem, she appeared to be functioning at an average level of intelligence and had reasonable insight into her problems.” (emphasis added)
Under ‘background history’ Dr Ali recorded, among other things, that Ms Caylak was married and had two children aged 14 and 18. He diagnosed her as suffering from an adjustment disorder with depression and, as there was “no evidence of any other environmental factor apart from the work”, her condition was directly related to the stresses at work.
In his report of 31 August 2003 Dr Roberts concluded that Ms Caylak had “no symptomatology that would permit the diagnosis of a reactive state. She has no psychiatric disability and no impairment can be diagnosed” (report page 11). He added that:
“Assuming that Mrs Caylak was upset by what happened at work such would be deemed to be a normal response in a normal person to a situation they found distressing. There is no evidence whatsoever of any injury to the psyche creating a disease of the mind.”
Arbitrator’s Reasons
In a carefully prepared determination the Arbitrator considered the evidence in detail and concluded that she did not accept that Ms Caylak suffered a work related injury. Her reasons were as follows:
a) the delay in reporting a link between her anxiety/depression and the incidents at work on 14 August 2002, the lack of a report from Dr Azam and the apparent onset of symptoms six weeks before 14 August 2002 made it difficult to “find that her symptoms were a reaction to the incidents at work on 14 August 2002” (Reasons, paragraph 50);
b) Ms Caylak’s decision to resign and her actions did not seem to reflect a reactive psychological injury (Reasons, paragraph 51) (this issue is discussed below at [54]);
c) the fact that Dr Ali did not have a full history on which to base his conclusions put “into question the conclusion” in his report of 9 February 2006 (Reasons, paragraph 54) (discussed further below at [55-56]);
d) it was unclear from Dr Ali’s report why the workplace stresses some three and a half years earlier were considered causative of her ongoing problems (Reasons, paragraph 55);
e) Dr Ali spoke of a gradual onset of anxiety and depression (Reasons, paragraph 57), not of symptoms developing as a result of the events of 14 August 2002 on which Ms Caylak’s claim was based;
f) the acceptance of Dr Roberts’ opinion that Ms Caylak had no “symptomatology that would permit the diagnosis of a reactive state” (Dr Roberts report 31 August 2003, page 11) arising from the incidents at work (Reasons, paragraph 57);
g) the Arbitrator found it difficult to link Ms Caylak’s present condition to the work incidents and that Ms Caylak’s panic attacks were a new symptom not mentioned to either Dr Ali or Dr Roberts (Reasons, paragraph 58) (this issue is discussed further below at paragraph [57]);
h) Ms Caylak did not seek any treatment since returning from Turkey in August 2006, notwithstanding her claim that her symptoms were ongoing (Reasons, paragraph 59), and
i) there was insufficient evidence to find that Ms Caylak’s symptoms arose from the incidents at work on 14 August 2002 or that employment was a substantial contributing factor to any injury (Reasons paragraph 60).
Appellant Worker’s Submissions
The Appellant Worker states that the issue before the Arbitrator was whether the events at work on 14 August 2002 resulted in Ms Caylak sustaining a psychological or psychiatric injury (Appellant Worker’s submissions, paragraph six). It is argued that the Arbitrator’s conclusions were based on errors of fact and were unsupported by the evidence.
The Appellant Worker submits that the following statements by the Arbitrator involve errors:
a) “the first link to work as a cause of the applicant’s depression, in her doctor’s clinical notes, was on 8 August 2003, the day she lodged her claim, almost twelve months after the date she left work on the 14 August 2002.” (Reasons paragraph 43);
b) “the applicant does not appear to link her symptoms to the work incident until August 2003.” (Reasons paragraph 49), and
c) “the delay in reporting a link between her anxiety/depression and the incidents at work, the lack of a report from the treating doctor and the apparent onset of symptoms six weeks before the incidents at work make it difficult to find that her symptoms were a reaction to the incidents at work on the 14 august 2002 or that the work incidents were a significant contributing factor to her symptoms. The timing of the complaint to her doctor about work events suggest that she only decided that work was the cause one year later when she decided to make a claim. This does not fit well with a diagnosis of an adjustment disorder.” (Reasons paragraph 50)
The error alleged is that it is clear from Dr Azam’s notes in August and September 2002 that Ms Caylak did link her symptoms to her employment at that time. I have carefully considered this submission in the light of Dr Azam’s notes. I do not agree that the notes support the submission made. Apart from the reference to the resignation, the notes do not refer to problems at work until August 2003. Even if is accepted that the notes provide a link between Ms Caylak’s symptoms and her employment in general, that was not the basis of the claim. Ms Caylak’s case is that she developed her condition because of the specific events on 14 August 2002. The notes provide no contemporaneous support for that claim, as they are silent about those events until August 2003.
Ms Caylak’s statement on 16 January 2007 that she did not intend to claim compensation at the time her employment ceased because she thought she would “get better and move on” (Ms Caylak’s statement 16 January 2007, paragraph seven) does not overcome the lack of complaint to Dr Azam in his notes in August and September 2002. If the events of 14 August 2002 were as significant as Ms Caylak claims it seems plausible that they would have figured prominently in Dr Azam’s records at that time. The fact that they did not appear until August 2003 was a legitimate matter for the Arbitrator to take into account in assessing the claim.
Further, Ms Caylak’s explanation that “when I was referred to Dr Aly [sic], a psychiatrist, in August 2003, I realised how serious my condition was and I at that stage made a claim for compensation” (Ms Caylak’s statement 16 January 2007, paragraph eight) is not consistent with the evidence that Ms Caylak was not referred to Dr Ali until September 2003. In addition, the reference in Dr Azam’s notes to “going to see a psychiatrist in one week” does not assist Ms Caylak as that entry appears after 8 August 2003 (the date of the claim form), not “at the time of making the claim” as has been submitted by the Appellant Worker at paragraph 22 of her submissions. Precisely when and why Ms Caylak decided to submit a claim form on 8 August 2003 (one year after the events of 14 August 2002 that allegedly caused her condition) was never satisfactorily explained and was a matter the Arbitrator was entitled to take into account in her overall assessment of the claim.
In respect of the Arbitrator’s reference to the “lack of a report from the treating doctor” (Reasons paragraph 50) it is argued that Dr Azam’s notes showed regular consultations for depression between 28 August 2002 and 3 May 2006 and there was a medical certificate from Dr Azam dated 8 August 2003 stating that Ms Caylak’s employment was a substantial contributing factor to the injury. It is submitted that Dr Azam’s notes provided sufficient information “to establish that the Applicant reported the incidents at work to the doctor and received treatment for depression as a result” (Appellant Worker’s submissions, paragraph 25). I do not believe that Dr Azam’s notes make up for the absence of a comprehensive report from that doctor. By their very nature doctors’ clinical notes are always brief, often incomplete and usually difficult to read. All of these comments are applicable in the present matter. Dr Azam’s notes do not complete the gaps in Ms Caylak’s case. They do not refer to the incidents on 14 August 2002 that are the basis of the claim. The entry of 8 August 2003 is incorrect when it states “H/O unfair dismissal from work”. Ms Caylak was not dismissed but resigned.
Dr Azam’s certificate of 8 August 2003 does give Ms Caylak some support but in assessing the weight to give to it the Arbitrator was entitled to have regard to the fact that it was prepared one year after the event. In addition, the certificate does not explain the basis for the conclusion expressed in it (see South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16). In all the circumstances the Arbitrator was not in error in considering the absence of a report from Dr Azam as one factor in her overall assessment of the claim.
The Arbitrator’s reference to “the apparent onset of symptoms six weeks before the incidents at work” (Reasons paragraph 50) is attacked on the ground that Ms Caylak had performance issues at work before 14 August 2002. Dr Azam’s notes on 28 August 2002 refer to Ms Caylak having “difficulty sleeping since last 2 months”. Therefore, it is submitted that the notes are consistent with Ms Caylak suffering symptoms of stress prior to 14 August 2002 but it was not until the events on that day that she was unable to continue working and required medical assistance for her condition “which at that time became a diagnosable psychiatric psychological condition” (Appellant Worker’s submissions, paragraph 31). I do not accept this submission. Ms Caylak did not claim that her condition resulted from the events leading up to 14 August 2002. In these circumstances the Arbitrator was entitled to consider Dr Azam’s entry on 28 August 2002 in determining whether Ms Caylak’s “symptoms were a reaction to the incidents at work on the 14 august 2002”. Her approach discloses no error.
At paragraph 51 of her Reasons the Arbitrator said:
“I note the statement of the manager, Anne-Marie Galea in which she says Mrs Caylak said on the 14 August 2002, ‘Don’t worry about it Ann-Marie I was going to leave anyway. Do you think you could give me a couple of weeks off first?’ I accept that this was said as I find the detail given by the manager convincing. The manager goes on to say, ‘I went and telephoned head office but her request for time off was refused’. The applicant was to re-marry in three months and although she was upset by the interview with the area manager her decision and actions do not seem to reflect a reactive psychological injury.” (emphasis added)
The Appellant Worker submits (correctly) that the Arbitrator has misquoted Ms Galea. In fact Ms Galea’s statement of 21 August 2003 records Ms Caylak as saying “don’t worry about it Anne-Marie, I am going to leave anyway” (emphasis added). This statement was in response to Ms Galea asking Ms Caylak what happened in her meeting with Ms Lehrer. The challenge to this passage is that the Arbitrator “appears to have drawn the conclusion from this statement that the Applicant was planning to leave her employment even before the events that occurred on 14 August 2002, presumably because of her impending marriage” (Appellant Worker’s submissions, paragraph 32). It is submitted that Ms Caylak’s intention to leave was formed as a result of the events at work on 14 August 2002. Whether Ms Caylak used the past tense ‘was’ or the present tense ‘am’ is not critical. In her own statement Ms Caylak agrees that she asked if she could resign without giving two weeks notice but she did not say that she was resigning because of the events of 14 August 2002. There is no dispute that Ms Caylak was to re-marry a short time after August 2002. In my view Ms Caylak’s statement, as recounted by Ms Galea, was ambiguous. It is certainly possible that she formed the intention to resign as a result of the events on 14 August 2002. Even giving the words that interpretation, it does not establish appealable error by the Arbitrator on this issue as the conclusion she reached was that Ms Caylak’s “actions do not seem to reflect a reactive psychological injury”. That conclusion was well supported by other evidence accepted by the Arbitrator. Further, it is unclear what, if any, weight the Arbitrator placed on the disputed passage. In view of the Arbitrator’s extensive reasons for not accepting that Ms Caylak’s condition was work related, I do not believe that this error had any impact on the final outcome so as to justify the decision being revoked.
At paragraph 54 of her Reasons the Arbitrator referred to certain omissions from the history taken by Dr Ali as to Ms Caylak’s personal circumstances. The Arbitrator felt that there had been a lack of frankness by Ms Caylak with Dr Ali and that that lack of frankness “puts into question the conclusion in the report of Dr Ali dated 9 February 2006” (Reasons paragraph 54). Dr Ali expressly referred to the fact that there was “no evidence of any other environmental factor apart from the work” (report Dr Ali 9 February 2006, page three) in reaching his conclusion that Ms Caylak’s symptoms were work related. In fact Ms Caylak had re-married in November 2002, her new husband was unemployed as at August 2003 and had been overseas for six months up to August 2003 (see report Dr Roberts 31 August 2003, page eight).
I do not accept the submission that because Dr Ali noted that Ms Caylak’s irritability and anxiety affected her relationship with her children and “other significant people in her life”, that indicated he had a full history of her situation. For whatever reason, Dr Ali did not have a full history of the circumstances of Ms Caylak’s second marriage. Those circumstances were relevant to an assessment of her psychological wellbeing. The omission of that history from Dr Ali’s report was a relevant fact the Arbitrator was entitled to consider and did consider in reaching her conclusion.
Ms Caylak made reference to being “panicked” while working as a telemarketer in either 2005 or 2006 (Ms Caylak’s statement 5 October 2006, paragraph 11). She also “became panicked” after obtaining a job with radio cabs and, as a result, states that she could not attend work with that organisation (Ms Caylak’s statement 5 October 2006, paragraph 12). The Arbitrator stated at paragraph 58 that Ms Caylak made no mention of panic attacks in her complaints to either Dr Ali or “Dr Robinson” [sic, Dr Roberts], therefore, those symptoms were new and were difficult to relate to the original injury. It is submitted that the Arbitrator was in error in concluding that the panic symptoms in 2005 were ‘new’. When Ms Caylak applied for a receptionist’s position at Fairy Meadow in 2003 she nearly fainted and ran out of the office after handing in her application (Ms Caylak’s statement 21 August 2003, paragraph 23). In addition, Dr Azam’s notes dated 11 December 2002 refer to “less panic” and Dr Ali refers to Ms Caylak having symptoms of anxiety that commonly include a feeling of panic in situations that are perceived to be stressful. The Arbitrator was correct that neither Dr Ali nor Dr Roberts had a history of Ms Caylak suffering panic attacks. The reference by Dr Azam to ‘less panic’ without an explanation is of little assistance and does not advance Ms Caylak’s case on this issue. Ms Caylak’s experience when she applied for the receptionist’s job in 2003 may well have been similar to a panic attack, but without an opinion from a suitably qualified expert I do not believe that the evidence allowed the Arbitrator to conclude that Ms Caylak had been experiencing panic attacks since 14 August 2002 or, if she had been, that those attacks were the result of the events at work on that day. The Arbitrator’s conclusion that it was difficult to relate the panic attacks to the original injury was open on the evidence.
The Appellant Worker challenges the Arbitrator’s finding that Ms Caylak’s condition would have occurred at about the same time in her life even if she had not been in employment with the bank on the grounds that that finding was not supported by the evidence. I agree with this submission. The Arbitrator’s finding on this issue was not necessary in circumstances where she had already found that she was not satisfied that Ms Caylak’s symptoms were caused by or arose out of her employment with the bank. Therefore, this error was of no consequence to the end result.
Incapacity and Medical Expenses
In light of the Arbitrator’s findings on injury, which have not been disturbed on review, it is not necessary to consider the challenges to the Arbitrator’s findings on incapacity and medical expenses. As Ms Caylak failed on the threshold issue of injury no analysis of her ability to earn was required and no entitlement to the payment of medical expenses arose.
DECISION
The Arbitrator’s conclusions are confirmed on review. However, her formal orders do not accurately reflect the findings made and as such are erroneous. Given the findings made on injury, the proper result is an award for the Respondent Employer. Therefore, paragraphs one and two of the Arbitrator’s determination of 19 February 2007 are revoked and the following order made:
“Award for the Respondent Employer.”
Paragraph three of the Arbitrator’s decision dated 19 February 2007 is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
4 July 2007
I 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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