Department of Corrective Services v Evans
[2005] NSWWCCPD 58
•30 June 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Department of Corrective Services v Evans [2005] NSW WCC PD 58
APPELLANT: Department of Corrective Services
RESPONDENT: Sydney Evans
INSURER:NSW Treasury Managed Fund managed by GIO General Ltd
FILE NUMBER: WCC17068-2003
CERTIFICATE OF DETERMINATION: 22 July 2004
DATE OF APPEAL DECISION: 30 June 2005
SUBJECT MATTER OF DECISION: Weight of evidence, psychological injury, fresh issues on appeal.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: Phillips Fox Solicitors
Respondent: Firths Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to bear the costs of the appeal.
THE APPEAL
Sydney Evans was employed by the NSW Department of Corrective Services as a Prison Officer when, on 7 May 1998, he was harassed and abused in his car on his way to work. He believes the perpetrators were former prisoners who recognised him from his uniform. Following this incident Mr Evans was diagnosed with ‘Post Traumatic Stress Disorder’ (‘PTSD’). He received medical treatment and had some time off work. Mr Evans claimed to have suffered a second, similar, incident of harassment on his way to work on 20 July 2000. He was again treated for PTSD.
On 16 February 2001, while at home, unable to work as a result of his PTSD, Mr Evans had a fall and seriously injured his left arm. Mr Evans claims that the fall was due to a blackout brought on by the medication he was taking for his diagnosed PTSD. He argues that the injury to his left arm is therefore causally related to his employment and has claimed for compensation from his employer for permanent impairment of the left arm (at or above the elbow) and related, reasonable medical expenses.
NSW Treasury Managed Fund, as managed by GIO General Limited (‘GIO’), the workers compensation insurer of the Department of Corrective Services, has denied liability for the claim. GIO disputes that the injury to Mr Evans left arm ‘arose out of or in the course of his employment’ as a Prison Officer with the Department.
Mr Evans has also claimed workers compensation for permanent impairment to his left leg. Unlike the injury to his left arm, there is no dispute between the parties as to whether this injury is connected to his employment. It is thus not in issue in this appeal.
A Commission Arbitrator found that Mr Evans injury to his left arm, suffered on 16 February 2001, “was causally related to work injuries which occurred on 7 May 1998 and 20 July 2000”. The Arbitrator ordered that the employer pay Mr Evans medical expenses in relation to the injury (section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’)) and that the matter be referred to an Approved Medical Specialist (‘AMS’) for assessment. Ultimately the question of the degree of permanent impairment, if any, of Mr Evans left arm and left leg, are medical issues and must be referred to an AMS for determination.
GIO now appeals against the Arbitrator’s decision and submits that it should be revoked.
The threshold leave requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) are satisfied and therefore leave to appeal is granted.
GIO submits that the appeal is amenable to determination on the papers. Mr Evans makes no submission on this issue. I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The review by a Presidential Member on appeal is not a rehearing. The power of a Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act is 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; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). Moreover, it must be such that but for the error, a different decision would have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247).
GIO submit that, in summary, the Arbitrator made two errors in coming to his decision.
The first alleged error is that the Arbitrator failed “to consider the consensus of medical evidence in the determination” on whether the injury to Mr Evans left arm “was causally related to his psychological condition, which in turn was regarded as being substantially work related”. This is essentially an argument that the Arbitrator made his decision without reliance upon relevant and logically probative evidence (as required by Rule 70 of the Workers Compensation Commission Rules 2003).
The second error alleged by GIO is that the Arbitrator “failed to determine the threshold issue of whether the Applicant ever in fact suffered from a work related psychological injury, which was raised in the Respondent’s [GIO’s] Reply”.
Did the Arbitrator fail to make the decision on the basis of the evidence?
Mr Evans claims to have injured his arm when he fell, at home, in February 2001. He consulted Dr Peter Gilbertson, his General Practitioner who provided a report, which is in evidence in the Commission proceedings. Mr Evans relied upon this report to support his claim to a causal connection between his PTSD condition and the fall, in which he injured his arm.
GIO submit that the Arbitrator did not consider the report of Dr Gilbertson in its entirety and relied upon only part of his report to support the contention that Mr Evans’s two conditions were causally related. GIO argue that the Arbitrator “relied on the comments made by Dr Gilbertson in his report dated 18 July 2002, that ‘the plethora of medication (the Applicant) was required to take placed him at increased risk of personal injury and cognitive/memory disturbance.’ ” GIO further submit that the Arbitrator did not give due consideration to Dr Gilberston’s specifically expressed the view, that there was a “tenuous” connection between Mr Evans PTSD and his left arm injury.
On any fair reading of the Arbitrator’s reasons (given ex tempore, properly recorded and transcribed) it is clearly not the case that he relied only, or selectively on Dr Gilbertson’s report in coming to his decision. While the Arbitrator gave Dr Gilbertson’s report significant weight, he also carefully considered the medical reports of Dr Quinn, who was Mr Evans treating Psychiatrist, and Dr Lowy, for GIO.
The Arbitrator, when giving his reasons, gave careful and, in my view, comprehensive consideration to the medical evidence. He first noted that there was no statement from Mr Evans before him. He then analyses the matters raised in Dr Gilbertson’s report in some detail including: the referral to Dr Quinn, the medication prescribed for Mr Evans, the description of “pre-syncopal episodes” and the injury to Mr Evans left leg and its treatment. The Arbitrator specifically considers Dr McManus and Dr Gilbertson’s comment as to the “tenuous” connection between the PTSD and the left elbow incident and concludes that: “I don’t know on what basis he says it is tenuous, whether that’s a reflection of medical causation or whether it includes some view as to compensation law and perhaps a doctor’s not understanding an incident that on first blush seems unrelated to work may ultimately be compensable”.
The Arbitrator then considered the medical report of Dr Lowy, Psychologist, relied upon by GIO. He questioned the factual basis for her opinion, in particular the influence personal events such as Mr Evans family break-up had upon his psychological condition. He notes that the report of Dr Lowy was provided in February 2004 whereas the events that are the subject of the claim occurred in February 2001. The Arbitrator found no inconsistency between Dr Quinn and Dr Lowy as to the continuation of PTSD as at February 2001. Ultimately the Arbitrator found that the “case really rises and falls on what you make of Dr Gilbertson’s opinion”, and on that basis he found for Mr Evans. He was entitled to do so. The evidence was relevant and logically probative and clearly based upon Dr Gilbertson’s medical expertise. GIO’s complaint in this appeal is really that the conclusion the Arbitrator came to on the evidence was not consistent with its own view of the evidence. This fact alone does not disclose an error on the part of the Arbitrator.
Did the Arbitrator fail to address the threshold issue of ‘injury’?
GIO submit that the Arbitrator also erred in that he “failed to determine the threshold issue of whether [Mr Evans] ever in fact suffered from a work related psychological injury, which was raised in [GIO’s] Reply”. GIO have submitted a list of facts concerning Mr Evans difficult personal and family history, which it alleged in the Reply were the basis for his PTSD, but which were not addressed by the Arbitrator in the reasons for decision. Mr Evans’ psychological condition (PTSD), argues GIO, results from “non-work” factors and is therefore non-compensable. The issue of causation in relation to the injury to Mr Evan’s left arm was thus a secondary issue, which, had the Arbitrator determined the issue of causation of the PTSD in favour of GIO, did not arise on the evidence.
This is a curious argument to be raised by GIO in the appeal, as the transcript of the proceedings before the Arbitrator evidences a concession by GIO to the effect that the question of whether Mr Evans PTSD was work related was not in issue in the dispute. Mr Stanton represented GIO before the Arbitrator and the transcript (at pages 12-13) records his submission that the opinions of Dr Lowy and Dr Quin were consistent in that they opined Mr Evans suffered PTSD as a result of the incidents of harassment that occurred while Mr Evans was going to work, on 7 May 1998 and 20 July 2000. They differ in that Dr Lowy suggests the PTSD would have resolved in a shorter time.
The Arbitrator was correct to state (at page 22 of the transcript) it was “common ground” between the parties that Mr Evans suffered PTSD as a result of the incidents of harassment that occurred while Mr Evans was going to work, on 7 May 1998 and 20 July 2000. Notwithstanding this “common ground” the Arbitrator also expressly found that the two, were “work related” (at page 25, line 43 of the transcript).
A dispute before the Commission is initially defined in the ‘Application to Resolve a Dispute’ and the ‘Reply’. The issues are identified and narrowed at the teleconference and again at the conciliation and arbitration hearing (see: ‘Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission’; Far West Area Health Service v Radford [2003] NSW WCC PD 10 (‘Radford’ at [25]). Proceedings in the Commission are not governed by strict pleadings (c.f. Radford, Barbour v BHP Steel Pty Limited [2004] NSW WCC PD 42 (‘Barbour’) and South Western Sydney Area Health Service v Edmonds [2005] NSW WCC PD 18 (‘Edmonds’)). Ultimately the Commission has the power to be informal and flexible in its procedures but proceedings must be governed by the principles of procedural fairness (section 354 of the 1998 Act).
In this matter it was incumbent upon the Arbitrator to determine the issue of ‘injury’, pursuant to section 4 of the Workers Compensation Act 1987, prior to the matter being referred to an Approved Medical Specialist for an assessment of permanent impairment. He did so. It is unfair and unreasonable for GIO to seek to argue on appeal that the Arbitrator did not address an issue, where that issue was the subject of a finding consistent with the submissions of the parties at the arbitration. Firstly, it cannot be said that the Arbitrator erred in failing to determine a question of fact that was not in dispute between the parties and was, nonetheless the subject of a specific finding.
Secondly it would be unfair to allow a party to raise an issue on appeal, which was not argued before the Arbitrator. This is the legal principle applicable to proceedings in a court and, for essentially the same reasons, it is applicable in proceedings in the Commission. Review by a Presidential Member is not an opportunity for a party to re-litigate their case or to raise fresh arguments on appeal that were not raised at first instance (see Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP 6, where this principle was applied in a ‘tribunal’ appeal proceeding). In this matter there was no application to lodge fresh evidence in the appeal. By putting in dispute on the appeal the issue of whether the PTSD suffered by Mr Evans ‘arose out of or in the course of his employment’ GIO is effectively raising a fresh issue not in dispute before the Arbitrator (see Zamovisa Pty Ltd v Kavanagh [2004] NSW WCC PD 53). The High Court set out the principle in Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 as follows:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The principle was applied by the High Court in Coulton v Holcombe (1986) 162 CLR 1 in relation to an appeal by way of rehearing. The Court held (per Gibbs CJ, Wilson, Brennan, and Dawson JJ) that:
“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish…”
The Arbitrator did not err in failing to determine the threshold issue of whether Mr Evan’s PTSD was work related.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
GIO have been unsuccessful on the appeal and it is appropriate that an order for costs be made in favour of Mr Evans.
Dr Gabriel Fleming
Deputy President
30 June 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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