Delta Electricity v Healey
[2006] NSWWCCPD 143
•10 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Delta Electricity v Healey [2006] NSWWCCPD 143
APPELLANT: Delta Electricity
RESPONDENT: Brian Healey
INSURER:Self insurer
FILE NUMBER: WCC20614-04
DATE OF ARBITRATOR’S DECISION: 7 June 2005
DATE OF APPEAL DECISION: 10 July 2006
SUBJECT MATTER OF DECISION: Aggravation of depression; psychological injury; adequacy of reasons; sections 4, 9A, 11A and 48 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION: Appellant: Bartier Perry, Solicitors
Respondent: Whitelaw McDonald,
Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 7 June 2005 is revoked and the following decision is made in its place:
1.Award in favour of the respondent in respect of the worker’s claim for weekly payments of compensation and for expenses under section 60 of the Workers Compensation Act 1987.
2.Each party pay its/his own costs.
No order as to the costs of the appeal.
BACKGROUND TO THE APPEAL
Brian Healey (‘the worker’) was born on 6 February 1953 and lives at Fishing Point, New South Wales which is, it appears, on the shores of Lake Macquarie near Toronto. Since 23 September 1980 he has worked in various capacities for Delta Electricity (‘Delta’) and its predecessors at Munmorah Power Station and other power stations in New South Wales. In latter years his employment was in senior management roles.
He suffered several physical injuries in the course of his employment, namely: a fractured calcaneus on 11 April 1999 which was the subject of proceedings in the Compensation Court and a back injury on 7 April 2003.
His present claim for compensation in the Workers Compensation Commission (‘the Commission’) relates however to psychological/psychiatric injury causing total incapacity since 21 July 2004. The alleged origins of this claimed injury lie in Delta’s actions or failures in dealing with his application for retirement on medical grounds and also in what is described by the worker as a ‘campaign of harassment and victimisation perpetrated by Delta Electricity and management’.
A Commission Arbitrator decided that he was entitled to compensation and it is from that determination that the present appeal is sought to be brought.
THE DECISION UNDER REVIEW
The ‘Amended Certificate of Determination’, dated 7 June 2005 records the Arbitrator’s orders as follows:
·The respondent to pay the applicant weekly payments of compensation for the period 21 July 2004 to 21 September 2004 at the rate of $1,373.10 gross a [sic] per week pursuant to section 36.
·From 1 October 2004 to 18 January 2005 payments at $1,398.38 gross per week pursuant to section 36.
·From the period 19 January 2005 to 31 March 2005 payments at $328.90 gross per week pursuant to section 37.
·From the period 1 April 2005 to date and continuing at the rate of $334.10 gross per week pursuant to section 37.
·The respondent pay the Applicants section 60 expenses in the sum of $2,022.85.
·The Respondent to pay the Applicants costs as agreed or assessed. In this regard I certify this was a complex matter which proceeded directly to arbitration.
I set out the Arbitrator’s findings and reasons in full correcting obvious errors:
“37. I agree with and accept the submissions from the Applicant’s Counsel. It has been clear from the outset in particular since the Applicant’s Solicitor’s letter of 17 (sic) September 2004 of the way in which the Applicant framed its case, namely that it was the Respondent’s reasonable actions concerning the Applicant’s Application for retirement due to ill health that caused his condition.
38. The fact that I have not referred to each of the submissions of the Respondent in its written submissions and the additional oral submissions should not be interpreted that I have not considered both the written and oral material relied on by the Respondent.
39. However these submissions seem clearly designed to meet a case which asserted that the Applicants depression was a product of his employment with the Respondent. If that was the case which the Applicant had maintained, those submissions would be telling indeed. However, that is not the case which has been put by the Applicant.
40. It seems clear that on the material that has been presented that the Applicant intended to resign from his employment because of his depression and at that stage depression was not as a result of the Applicant’s employment with the Respondent.
41. It is also clear on all the evidence the manner in which the Respondent dealt with the Applicant’s proposal for Medical Retirement changed the nature and extent of the Applicant’s depression.
42. As was summed up by Dr Wade in the last paragraph of his report on 17 November 1994, ‘Mr Healey did not want to go through the workers compensation pathway, he applied for medical retirement with support from Dr Corrigan and Dr McArthur as well as myself. He perceived to have been pushed into Workers Compensation as ongoing evidence of payback for him trying to hang onto old principles. This is objectively supported by the behaviour of Delta in this process, in that before my report was received he was pushed into a return to work program. The ignoring of his treating doctors reports by Delta, the lack of humanity if at all points the culture of fear that Mr Healey had referred to’.
43. Whilst I do not accept the Doctors comments in relation to the concept of ‘payback’ and ‘lack of humanity’ and ‘culture of fear’, I have no hesitation after consideration of all the material before me that the Applicant intended to retire from the respondent without making any claim for Workers Compensation.
44. I find that, on the material before me, specifically the email from Mr Sharrock of 15 July 2004 that the Respondent was not even going to process his Application for Retirement Ill Health until he had abandoned his proceedings in the Industrial Relations Commission.
45. I agree with the Applicant’s Counsel that this conduct by the Respondent does not fall within the activities exempted by section 11A and I do not accept as contended by the Respondent’s Solicitor that the concept of ‘dismissal’ is synonymous with Medical Retirement, particularly as that process involved the State Superannuation Board, as opposed to the Respondent.
46. I do not accept the Respondent’s Solicitor’s argument that section 48 does not apply. The Applicant’s ‘existing incapacity’ at the time before he made his Application for Medical Retirement was rejected, was depression, but the Applicant’s employment was not then a significant contributing factor to that condition. As he says in paragraph 38 of his statement ‘Upon returning to work on 8 April 2004 I was called to a meeting between myself, Lyle Constable (my Supervisor), Nicole Page (Rehabilitation Officer) and Robbie Vanhonbracht (Acting Business Manager) where I was asked whether the depression was work related. I indicated that whilst there were work related issues involved in the leave, the leave I had taken was in fact personal sick leave’.
47. This accords with the view of Dr Corrigan as expressed to Dr Wade in his report of 10 February 2004 in paragraph 2 where he found that the Applicant’s Major Depressive Disorder was ‘secondary to a number of factors in his life’ the Doctor noted that there were significant work related issues which were ongoing but the applicant ‘recently achieved the Euthymia over the Christmas period to the point that he ceased anti depressant medication’. He also noted that although he developed some stress related symptoms since returning to work, he had not suffered a recurrence of his Major Depressive Disorder.
48. There is clear and convincing evidence that the Respondent’s treatment of the Applicant’s Application for retirement due to ill health changed the nature of the Applicant’s depression pursuant to section 48 and that the Respondent’s actions in this regards are not exempted by provisions of section 11A.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
The application to appeal was lodged on 20 June 2005 and is thus within time under section 352(4) of the 1998 Act. The amount of compensation at issue on the appeal is substantially in excess of $5,000.00 and all of it is at issue on the appeal. Leave to appeal is accordingly granted.
PARTICULARS OF THE CLAIM
In the claim for workers compensation submitted to Delta by the worker he describes the date of incident as being “21 7 04” and describes the circumstances of the injury as follows “unreasonable action by Delta Electricity Management”. The injury or condition is described as “major depression - chronic”.
It appears that a request was made to the worker by Delta for further particulars of the claim and these were supplied by the worker’s solicitors by letter of 7 September 2004 as follows:
“1.i) The injury has been caused by the unreasonable actions of Delta Electricity failing to process Application for Retirement (ill health).
ii)The unreasonable failure of Delta Electricity to provide our client with a satisfactory explanation as to why his application for retirement (ill health) had not been processed.
iii)The unreasonable actions taken by Delta Electricity following a return to work by Mr Healey on 8.04.2004.”
In the Application to Resolve A Dispute lodged on 16 December 2004 particulars of injury are as follows:
“Date of injury i 21.07.2004
iiNature and conditions of employment between 01.01.1996 and 21.07.2004.”
The place of injury is said to be “premises of the respondent”. The injury is described as “psychological/psychiatric injury” and the date of compensation claim is said to be “3 August 2004”. The injury is described as follows:
“(i)Unreasonable actions taken by Delta Electricity Management in respect of the Applicants medical condition and his subsequent application for retirement ill health.
(ii)Ongoing campaign of harassment and victimisation perpetrated by Delta Electricity Management including but not limited to issues noted in annexed statement.”
At the hearing on 22 April 2005 the issues were narrowed to, it seems, the events of 2004. The worker’s counsel made the following statement (transcript page 39):
“What started the depressive condition is irrelevant. Whether it’s genetic, whether it started by a viral, sleep apnoea, haemochromatosis, alcohol, wife’s health, father’s death is irrelevant because if we can demonstrate that something in the work occurring as a result of what I’ve been talking about caused an exacerbation, it’s sufficient.”
EVIDENCE AND SUBMISSIONS
No oral evidence was given before the Arbitrator but there were oral submissions in addition to written submissions and a very substantial body of documentary evidence. It may be helpful to set out a brief chronology of events.
The significant events of 2004 appear to be the following:
(a)The worker away from work from 22 March to 7 April 2004 with depression.
(b)Letter 23 March 2004 Dr McArthur GP to Dr Wade, psychiatrist. Worker has reached the point where he feels he cannot continue work. His intent is not to return to the workforce. Reference to fractured calcaneal bone and fractured vertebra in back as well as return to work under difficult circumstances.
(c)8 April 2004 worker returns to work. Worker immediately called to a meeting with Lyle Constable, his supervisor, and others. He was asked to attend an appointment with a general physician (Dr Price) in order to assess his fitness for work. It was later arranged that he should see a psychiatrist, Dr Prior, since the illness in question was depression. The worker was informed by Mr Constable that until he had been seen by Dr Prior he would be required to take sick leave.
(d)On 20 April 2004 the worker saw Dr Prior.
(e)21 April 2004 letter from Lyle Constable to the worker as follows:
“In response to your request for an explanation regarding your current sick leave absence I would like to offer the following:
Delta Electricity is seeking further clarification on your condition, given your indication at our meeting on 8/04/04 that work issues were having a negative affect on your health. It was noted at the meeting that you did not wish to elaborate on specific work issues.
On review of Dr Prior’s report, a meeting will be held to discuss your suitability to return to work.”
(f)On 27 April 2004 the worker was informed by his supervisor that he was fit to return to work and to report for work the following day. There was then a dispute as to re-crediting the sick leave taken by the worker as required by Delta. The worker took the matter up with his Union and proceedings were lodged in the Industrial Relations Commission in relation to this.
(g)On 29 April 2004 Dr Wade reports to Dr McArthur. Worker feels he cannot go on just for sake of money or some other superficial reason. He can see there is a need to give work away. That it is only causing him despair and exacerbating depression. Dr Wade thought that the work situation was causing significant grief and aggravating that grief to the point of generating more depressive symptomatology. The work environment is described as toxic to the worker’s well-being in his psychological state. Dr Wade thought that he needed to be medically retired from his current position.
(h)10 to 20 May 2004 – worker taking accumulated days off.
(i)19 May 2004 Certificate of Incapacity in relation to the worker signed by Dr McArthur as follows:
“I certify that the member named here is suffering from a medical condition which, in my opinion, is likely to result in their being unable ever to be employed in a capacity for which they are reasonably qualified by education, training or experience.
I also certify that, in my opinion, the person has suffered from that condition for a period of 5 years.”
On the same day Dr McArthur gave the worker a letter headed ‘To Whom it May Concern’ in which Dr McArthur sets out his views as to the worker’s depression. In part, the report is as follows:
“For the last five years he has developed quite a severe reactive depression and while there are a number of contributing factors by far a significant contributor was the injury sustained at work, initially to his right calcaneal bone and in another incident, an injury to his thoracic spine.”
(j)21 May 2004 – the worker attended his place of employment for half a day in order to lodge his Application for Retirement on the grounds of ill health.
(k)1 June 2004 – saw Dr Crocker at the request of Delta. No report has been placed in evidence.
(l)25 June 2004 – the worker spoke to Lyle Constable who indicated that the retirement application had been put on hold, it was said as a consequence of the ongoing industrial dispute.
(m)Approx. 8 July 2004 – the worker alleges that Mr Sharrock proposed to him that if he dropped the case for reimbursement of sick leave and signed away his right to further independent medical assessment then the Application for Retirement on the grounds of ill health would be placed before the CEO by the following Thursday.
(n)14 July 2004 – the worker asked Glen Sharrock to put the proposal in writing. This was refused.
(o)15 July 2004 – e-mail received by the worker from Glen Sharrock as follows:
“Further to our conversation of 12 July 2004, and your desire to progress the RIH process, you have requested Delta put on record its position in relation to these matters.
As discussed, consideration of your application for RIH is complicated by the way in which your medical condition has apparently changed from being unfit to being well and back again as detailed in various claims, assertions and sometimes conflicting medical advice. As you are aware, retirement ill-health can only occur if you are unfit now and in the future to perform the duties of your appointed grade. Your claim before the IRC that you were fully fit for work for the nine days after Easter appears to be at odds with your RIH case regarding your fitness for work.
In the circumstances, it is considered that resolution of the IRC proceedings associated with the nine day’s leave after Easter and HealthQuest interviews (one way or another) is a necessary first step before consideration can be given to your request for RIH.
I envisage that, should it be agreed that you were not fully fit for work in the period in question then your RIH application would be processed promptly.”
(p)21 July 2004 – Dr Wade completes a WorkCover medical certificate in which the diagnosis is ‘major depression – chronic’. It states that the worker is unfit from 21.07.04 to 21.10.04. It should be noted that there are a good many blanks left in the certificate.
(q)23 July 2004 – WorkCover Medical Certificate provided to Delta.
(r)27 July 2004 – letter from Delta to worker regarding retirement ill-health which says in part:
“In light of your intention to pursue worker compensation benefits, Delta is not in a position to process your retirement ill-health application. This is to ensure that we will comply with our obligations to provide appropriate injury management, pursuant to the Workplace Injury Management and Workers Compensation Act 1998. This process will involve obtaining appropriate medical advice (including from your treating doctors) and assessing whether you are fit to resume in your normal duties or where available, an alternative suitable position.”
Before the Arbitrator Delta made extensive submissions which may be shortly summarised as follows:
·The nature and condition claim was statute barred by section 261 of the 1998 Act. No claim for compensation was made within six months after the injury or accident had happened.
·The worker’s employment was not a substantial contributing factor to the alleged psychological injury (section 9A of the 1987 Act).
·Alternatively, if employment was a substantial contributing factor to the worker’s psychological injury or aggravation, then that injury or aggravation was predominantly caused by reasonable action proposed to be take by Delta with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal, and/or the provision of employment benefits (section 11A of the 1987 Act).
·The worker is not totally or partially incapacitated as a result of any workplace injury.
In the present Application to Appeal Against the Decision of an Arbitrator, the grounds of appeal are as follows:
“1.That the Arbitrator erred in finding that the worker received a ‘psychological injury’ (as defined in section 11A(3) of the 1987 Act) arising out of the employer’s treatment of his retirement ill health application.
2.That the Arbitrator erred in finding that the employer’s treatment of the worker’s retirement ill health application was a substantial contributing factor to an aggravation of the worker’s pre-existing depression or to any other ‘psychological injury’.
3.That the Arbitrator erred in finding that the employer’s treatment of the worker’s retirement ill health application changed the nature of the worker’s depression pursuant to section 48 and generally in relation to his application and interpretation of section 48 of the 1987 Act.
4.In the alternative, the arbitrator erred in finding that the worker suffered an incapacity as a result of the psychological injury or the alleged aggravation of his pre-existing depression.
5.In the alternative, the arbitrator erred in finding that the worker suffered from total incapacity for work from 21 July 2004 to date and continuing.
6.The arbitrator erred in finding that the employer was not going to process the worker’s retirement ill health application until he had abandoned his proceedings in the Industrial Relations Commission.
7.The arbitrator’s findings in relation to 1, 2, 3, 4 and 6 above were not supported by any evidence or any logically probative evidence.
8.In the alternative, the arbitrator’s findings in relation to 1, 2, 3, 4, 5 and 6 above were against the weight of the evidence.
9.The arbitrator’s findings in relation to 1, 2, 3, 4, 5 and 6 above were affected by legal, factual and/or discretionary error.
10.The arbitrator’s reasons did not comply with rules 70 and 73 of the Workers Compensation Commission Rules 2003 and his reasons were so inadequate as to amount to a failure to determine the matter in accordance with the law.
11.In the alternative, the arbitrator erred in ordering that the employer pay the worker’s section 60 expenses itemised on the HIC charge in the sum of $2,202.85, in particular, the consultation with Dr Taylor on 18 November 2004 and an optometrical consultation with Dr Joyes on 22 October 2004 (totalling $42.20 and $25.15 respectively), in circumstances where there was no evidence of the worker having received any treatment of his alleged psychological injury or its aggravation from those medical providers.”
The worker has answered the submissions on behalf of Delta and has referred to the High Court case of Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626.
DISCUSSION AND FINDINGS
It is not necessary I think to deal with all of the grounds raised by Delta in order to dispose of this appeal. The significant matters it appears to me are as follows:
· Adequacy of reasons.
· Section 4 and section 16.
· Section 48.
· Section 9A, section 11A.
(The above references are to sections of the Workers Compensation Act 1987.)
Adequacy of Reasons
Rule 73 of the Workers Compensation Commission Rules 2003 sets out what a statement of the Commission’s reasons is to include. As Deputy President Fleming said in Barbour v BHP Steel Pty Limited [2004] NSWWCCPD 42 at paragraph 44:
“It is not necessary, nor appropriate, for a Commission Arbitrator to give lengthy reasons for decision. Provided that Rule 73 is complied with, the reasons will be adequate, notwithstanding that they do not set out the statutory provision at length, nor specify and examine all relevant judicial authority on the matters decided ... The standard by which adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker ...”
In a later decision of Wyong Shire Council v Paterson [2004] NSWWCCPD 45, the same learned Deputy President at paragraph 27 thereof cites authority for the following propositions, namely, the Arbitrator’s decision must be read as a whole and without combing it for error.
In M & S Shipman Pty Ltd v Larry John Matters [2003] NSWWCCPD 19, the Deputy President at paragraph 84 says the following:
“To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrate that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application. ...”
Turning to the decision, the subject of appeal, the issues and statutory provisions involved were complex and Delta’s submissions were extensive. I have set out at paragraph 6 the reasons given by the Arbitrator. Ultimately, the Arbitrator did not have to deal with all of those submissions because of the limited way in which the worker’s case was put. In only dealing with those issues I do not consider that the Arbitrator erred. In the circumstances, I regard the Arbitrator’s reasons as adequate since they are sufficient to enable the appeal to be determined.
Sections 4 and 16 (Aggravation of Disease)
I will use the word ‘aggravation’ in this decision as a shorthand form to refer to the statutory expression in section 4 and section 16, namely ‘aggravation, acceleration, exacerbation or deterioration’. These concepts were examined by the Supreme Court and the High Court in Federal Broom Company Pty Limited v Semlitch ([1964] NSWR 511 and (1964) 110 CLR 626). It is clear that the words used convey somewhat different concepts but there is overlapping between the meanings of those words.
The right to compensation for aggravation of a disease comes from the combined operation of section 4 (Definition of ‘injury’) and section 9 (Liability of employer for injuries received by worker). Section 16 deals with the time when injury is deemed to have happened, identifies who is to pay the compensation and provides for contribution between employers. It is clear that the aggravation is the injury not the underlying condition.
In this case the Arbitrator accepted the worker’s counsel’s submission that the deemed date of injury was when the claim for compensation was made, namely, 21 July 2004. It was urged on behalf of Delta that the date of incapacity was the relevant date, namely, 21 May 2004. The significance of this appears to be that as at 21 May 2004 the worker could not have suffered an aggravation in relation to Delta’s dealing with the retirement ill-health application because those events had not happened. The Arbitrator fixed on the conduct of Delta in relation to the worker’s retirement as being the relevant aggravating factor. He described Delta’s actions as ‘reasonable’ (paragraph 37). The Arbitrator found that the worker’s underlying depression was not as a result of the worker’s employment with Delta. I do not disagree with that finding.
The worker’s case initially was that all of his employment since 1996 constituted an aggravation of the worker’s depression but, more particularly, the events of 2004 surrounding his being required to take sick leave, the related proceedings in the Industrial Relations Commission and Delta’s conduct in relation to the worker’s retirement application. The Arbitrator decided the matter on the basis of Delta’s action with respect to the worker’s application for retirement. This was as a result of the manner in which the worker’s case was put. It is of course possible to have multiple aggravations of an underlying depression, each producing its own entitlement to compensation. The reason for the worker insisting on 21 July 2004 as the deemed date of injury is obscure. There may have been some employment related aggravation of or contribution to the worker’s depression prior to this. The problem with the worker’s argument is that section 16 operates to give a deemed date of injury in this case when there is incapacity not when the claim is made. It is clear on the medical evidence of Dr Wade and Dr McArthur that shortly before taking sick leave in March and April 2004 the worker was unfit to work and medical retirement had been recommended. Nonetheless, he did do some work it appears after this time.
At least by 21 May 2004 the worker was totally incapacitated and did not work thereafter. I have difficulty in seeing how an aggravation of this total incapacity could be compensable. The worker relies on section 48 of the 1987 Act in relation to this and I will deal with that next. In my opinion the Arbitrator erred in taking the deemed date of injury to be 21 July 2004 and in finding that the conduct of Delta in relation to the worker’s retirement was a compensable aggravation of that depression.
I have considered what was said by Sheller JA in GIO Workers Compensation (NSW) Ltd v GIO General Limited (1995) 12 NSWCCR 187 at 196, namely:
“In the case of a worker’s claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to incapacity for which compensation is claimed.”
I have also considered the decision in P&O Berkeley Challenge Pty Ltd v Alfonzo (2000) 20 NSWCCR 554. I do not however think that either of these authorities affects the conclusion to which I have come in relation to the correct date of injury.
Section 48 (Compensation payable despite existing incapacity)
Section 48 provides as follows:
“48.(1) Compensation is payable under this Division in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity for work of the worker.
(2) Any such compensation is payable as if total or partial incapacity for work had in fact resulted from the injury.
(3) In this section –
existing incapacity means total incapacity for work by disease or other cause –
(a) not entitling the worker to compensation under this Act; and
(b)existing at the time when the total or partial incapacity for work would otherwise have resulted from the injury.”
Section 48 has its origins in section 7(2A) of the Workers’ Compensation Act 1926. That subsection was enacted in 1951 following the decision of the High Court in Dawkins v Metropolitan Coal Co. Ltd (1947) 75 CLR 169 which denied a worker compensation for a work related condition, pneumoconiosis, which was totally incapacitating because he had an earlier non-work related condition tuberculosis which had caused total incapacity. The Arbitrator accepted that section 48 applied to this case. Neither the Arbitrator nor I have been referred to any cases on section 48. Indeed, there appear to be no reported cases. There are however cases on the former subsection.
In Fisher v Hebburn Limited (1960) 105 CLR 188 section 7(2A) was considered by the High Court principally as to the application of the amendment to a worker who had retired prior to its coming into effect. The pre-existing total incapacity was as a result of Buerger’s disease which the High Court described as an arterial disease. The work related incapacitating disease was as in Dawkins, pneumoconiosis.
In Martin v Lithgow Valley Colliery & Co. Ltd [1954] WCR 47, the pre-existing incapacity arose out of carcinoma and the later work related disease was again pneumoconiosis. The subsection was held to apply in that case.
In this case it is said that the actions or omissions of Delta in relation to the processing of the worker’s retirement ill-health application caused an aggravation of his pre-existing depression which was necessarily conceded to be non-compensable because section 48 has no application unless the existing total incapacity was such as to not entitle the worker to compensation under the Act (section 48(3)(a)). The Arbitrator accepted the submissions on behalf of the worker in relation to the application of section 48. I am of opinion that he erred in doing so for the following reasons:
·There is no evidence of aggravation causing incapacity greater than the pre-existing incapacity.
·There is no evidence of the duration and extent of the aggravation.
·I do not consider that section 48 has any application where an existing total incapacity is said to be aggravated by a compensable injury. Such cases as there are on its predecessor, section 7(2A) of the 1926 Act are confined to incapacities which have different origins or result from different diseases.
Section 9A and Section 11A
It was argued on behalf of Delta that if the worker had suffered an injury that injury, being a psychological injury, was wholly or predominantly caused by reasonable action of Delta with respect to dismissal or provision of employment benefits to the worker.
The Arbitrator found that the actions of Delta were not with respect to dismissal. I do not disagree with that. I do however have difficulty with the Arbitrator’s decision that the actions of Delta and its staff in relation to the worker’s application to retire on account of ill health were not in relation to the provision of an employment benefit to the worker. The Arbitrator was not referred to any authority as to what ‘employment benefits’ meant nor was I. Challenger TAFE v Shaban [2004] WASCA 314 deals with the question of a benefit in relation to employment. The dictionary meaning was said to be extremely wide but was read down in that case to prevent absurdity. In Trewin v Comcare (1998) 156 ALR 615 it was held that a benefit, in that case, permanent appointment, was still within the statutory exception notwithstanding that there was a claimed entitlement as a matter of right. On behalf of the worker it was argued that superannuation benefits were a statutory entitlement like holiday pay, sick leave and minimum wages. It was further suggested that an employment entitlement would be something provided by the employer to benefit a particular employee such as a car, flexible working hours or anything that accrues to him from this particular employer as a separate employment benefit. I cannot agree. The payment of sums when a worker is retired from work because of ill health is undoubtedly a benefit. Such benefit is, it seems to me, an incident of employment. It is not inappropriate to describe the entitlement to retirement ill-health benefits as an employment benefit. The separate role of the State Superannuation Scheme is mentioned in submissions as being the source of the retirement benefit. While this may be so, no complaint is made about the actions of that body. The complaint by the worker is about the actions of Delta. These actions must satisfy section 9A, namely that “employment ... was a substantial contributing factor to the injury”. The Arbitrator found that Delta’s actions were reasonable and brought about an aggravation in the nature of the applicant’s depression. I am of opinion that the Arbitrator did not err in finding that the actions of Delta were reasonable, however, I think that he did err in finding that such actions were not with respect to the provision of employment benefits to the worker.
In Department of Education & Training v Sinclair [2005] NSWCA 465, Spigelman CJ at paragraphs 48 to 58 discusses the combined operation of section 9A and section 11A. He concludes at paragraph 58:
“To avoid the absurdity that arises from a literal approach, and having regard to the context of the legislative scheme and its purpose, it is necessary to understand s11A to mean that the employer is not liable where, to the extent that the employment contributed to the injury, that contribution was wholly or predominantly caused by reasonable action taken with respect to ... discipline.”
The onus of satisfying the requirements of section 9A is in my opinion on the worker and the onus in relation to section 11A is on Delta.
If the circumstances of this injury are found to satisfy section 9A and are on the evidence the only cause of the claimed injury by way of aggravation then, necessarily, I think, that aggravation is wholly or predominantly caused by action taken by the employer.
In view of the evidence and the way in which the matter was conducted before the Arbitrator, it is not necessary, in my view, to examine whether any relevant aggravation of the worker’s depression was a result of other employment related events. Delta is, in my view, entitled to succeed on the appeal for the reasons which I have given and there ought be a determination made in its favour.
DECISION
The decision of the Arbitrator dated 7 June 2005 is revoked and the following decision is made in its place:
1.Award in favour of the respondent in respect of the worker’s claim for weekly payments of compensation and for expenses under section 60 of the Workers Compensation Act 1987.
2.Each party pay its/his own costs.
COSTS
Although the Appellant has been successful it is, in my view, inappropriate to make an order for costs and, accordingly, I do not do so.
Anthony Candy
Acting Deputy President
10 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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