Department of Education and Training v Cathryn Wendy Ingle
[2003] NSWWCCPD 18
•22 July 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION: Department of Education and Training v Cathryn Wendy Ingle
[2003] NSW WCC PD 18APPELLANT: Department of Education and Training RESPONDENT: Cathryn Wendy Ingle INSURER: GIO Workers Compensation FILE NO: WCC 3024-2002 DATE OF DECISION: 22 July, 2003 PRESIDENTIAL MEMBER: Deputy President, Gary Byron DECISION UNDER APPEAL: The Respondent (Appellant) liable to pay to the Applicant (Respondent Worker) weekly compensation from 6 June, 2001 and continuing, and medical expenses pursuant to section 60 of the Workers Compensation Act 1987, on production of accounts or receipts. Appeal re: not established that the injury arose out of or in the course of employment; that employment was not a substantial contributing factor to any injury; that there is no liability established for payment of weekly payments of compensation or medical expenses; decision not supported by the evidence and weight of evidence. DATE OF DECISION UNDER APPEAL: 12 February 2003 HEARING/DETERMINATION OF APPEAL: Determined on the Papers REPRESENTATION: Appellant: Rankin and Nathan Solicitors and Notaries Respondent Worker: MacMahon Associates ORDERS MADE ON APPEAL: The appeal is not allowed. The decision appealed against is confirmed. The Appellant is to bear the costs in accordance with the Act and Regulations.
THE APPEAL
On 10 March, 2003 the Department of Education and Training (“the Appellant”) lodged an appeal against the decision dated 12 February, 2003, of the Workers Compensation Commission (“the Commission”) constituted by an Arbitrator, that the Appellant is liable to pay to the Applicant (“the Respondent Worker”) weekly payments of compensation from 6 June, 2001 “to date pursuant to section 36, 37, 38 or 40 of the Workers Compensation Act 1987”, (“the 1987 Act”). Such weekly payments were ordered to continue in accordance with the provisions of the 1987 Act. It was further ordered that the Appellant is liable to pay the Respondent Worker’s “section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.” The Insurer is GIO Workers Compensation (“the Insurer”).
The Respondent Worker lodged an Application to Resolve a Dispute with the Commission on 4 October, 2002. She claimed that she suffered a total incapacity for work that arose out of and in the course of her employment as a teacher with the Appellant. She claimed that on 4 June, 2001, that she had suffered a psychological injury while employed by the Appellant, and was now unable to continue to work. She notified the Appellant of the injury on the same day, and on 22 August, 2001 she lodged a claim for payment of weekly payments of compensation and payment of medical expenses. The Insurer advised the Respondent Worker on 5 December, 2001 that liability for the injury and the claim for weekly payments and medical expenses, was denied. The issues before the Arbitrator are summarized at paragraph 7 of the Arbitrator’s Statement of Reasons for Decision, and were: whether the Respondent Worker received an injury that arose out of or in the course of her employment with the Appellant; whether that employment was a substantial contributing factor to the injury; whether she was partly or totally incapacitated and if so, for what period or periods, and whether some or all of the Respondent Worker’s medical and related expenses were incurred as a result of treatment, services or assistance reasonably necessary for the claimed, compensable injury.
THE ISSUES IN DISPUTE IN THE APPEAL
The issues in the appeal, arising from the grounds of appeal, may be summarized as follows:
(1)whether the Arbitrator based his decision on medical evidence that was not part of the Application for Dispute Resolution;
(2)whether the Arbitrator failed to address, ignored or gave insufficient consideration to medical and other evidence in relation to “death panics” that occurred as a result of the Respondent Worker’s attendance at a funeral in 1999;
(3)whether the Arbitrator based his findings on unreliable and insufficiently substantiated evidence provided by the Respondent Worker and failed to give due consideration to the evidence and submissions of the Appellant;
(4)whether the Respondent Worker failed to establish an injury arising out of or in the course of employment or alternatively, that her employment was a substantial contributing factor to any such injury, and whether there was evidence upon which the Arbitrator could properly rely to make his findings in relation to these issues;
(5)whether the Arbitrator: failed to address and properly take into consideration the Appellant’s submissions in relation to work history; failed to address evidence obtained under cross-examination and submissions in relation to the inability of the Respondent Worker to identify the cause of her depression as “the attendance on Tanya Davis in August, 2000”; failed to address and/or give sufficient consideration to the Appellant’s submissions that work conflicts at Scone were of a minor nature and were insufficient to give rise to a severe depressive condition and/or that no injury was incurred or reported during the course of that employment; failed to consider the Appellant’s evidence and submissions that the actual injury/depressive condition arose from a non-work related event, and, failed to address the medical evidence of Dr. Akkerman and Dr. McDonald, and the Appellant’s submissions, that the Respondent Worker’s injury would have occurred in any event, due to a significant pre-disposing factor.
JURISDICTION TO HEAR THE APPEAL
Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (“the 1998 Act”) provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The requirements of section 352(2) are met. Leave to appeal is granted.
The appeal was lodged with the Commission on 10 March, 2003, within 28 days of the making of the decision appealed against, pursuant to section 352(4).
It was necessary for the Commission to establish that all documents in relation to the appeal had been correctly served by and upon the parties, and this has been verified as being the case.
The review of the decision appealed against may proceed, pursuant to section 352(5). An outline of the nature of an appeal to a Presidential member is set out in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7 at paragraph 18, as follows:
“A Presidential member has a specific and limited role in the review of a decision of the Commission constituted by an Arbitrator. It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly, it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesh v Maunz [2000] HCA 30 (3 August 2000)).”
Determination on the papers
Section 354(6) of the 1998 Act provides:
“354 Procedure before Commission
(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 President’s Direction Number 1 of 2002, the submissions that have been made by both parties, the documents that are before me, and the agreement of both parties that the appeal can proceed to be determined “on the papers”, 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.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Commission constituted by the Arbitrator, and now before me on appeal, is listed in his Statement of Reasons for Decision (“Reasons”’) dated 12 February 2003, at paragraph 14, as follows:
For the Appellant
·Statement dated 27 September, 2001, made by Merran Ruth Campbell.
·Reports of Dr Klaus Akkerman dated 12 November, 2001, 6 November, 2002 and 22 January, 2003.
For the Respondent Worker
·Letter of the Insurer dated 5 December, 2001.
·Letter from the Applicant (Respondent Worker) to the Insurer dated 23 November, 2001.
·Statement of the Applicant (Respondent Worker) dated 26 September, 2001.
·Medical certificates of Dr. Del Mullins.
·Reports of Dr. Del Mullins dated 4 October, 2001 and 20 January, 2003.
·Reports of Dr. Timothy McDonald dated 27 June, 2002, 17 November, 2002 and 22 January, 2003.
Leave details in relation to the Respondent Worker, under cover of a letter from the Department of Education and Training, dated 2 July, 2002, were also before the Arbitrator, and are before me, in this matter.
A copy of the transcript of the evidence of the proceedings before the Arbitrator, is also before me, in this appeal.
Appellant’s written submissions
The Appellant’s written submissions were lodged in the first instance in the form of grounds of appeal as an attachment to the document ‘Appeal Against Decision of Arbitrator’ dated 7 March 2003. These submissions are summarized at paragraph 3, above. They were supplemented by further detailed, written submissions that were dated and lodged with the Commission, on 4 April 2003. The substance of the further submissions may be summarized as follows:
·There is no dispute that the Respondent Worker suffers from a significant psychological condition but it is submitted that no such injury arose out of or in the course of her employment, and in the alternative it is submitted that her employment with the Appellant was not a substantial contributing factor to any injury as alleged, or at all. In support of this the Appellant submits that the claim of psychological injury made in August, 2001 referred to employment with the Appellant at Scone Public School approximately two years earlier; and that the first notification of it in August, 2001 arose after 12 months of treatment for a non work-related injury, she having transferred from Scone Public School in January, 1999; that the Respondent Worker takes no issue with her employment at Muswellbrook and makes no claims of difficulties arising from that employment; that as a result of attending a funeral around Christmas, 1999 the Respondent Worker began to experience “death panics” and her mental well-being began to deteriorate from this point, this being conceded by the Respondent Worker in cross examination; that the Respondent Worker made no report of injury or psychological difficulties during her time at the Scone Public School and no treatment was sought for psychological injury prior to August, 2000, this relating solely to the “death panics” being experienced; that the evidence given by the Respondent Worker concerning events at Scone Public School related to relatively innocuous and minor conflicts with fellow employees and the Principal; that no history of any work problems or conflict was given to any doctor until September, 2001, approximately 2 years and 9 months after leaving Scone, and after a compensation claim was lodged in August, 2001; that her attendance for treatment by Dr. Roberts-Thompson (who is now deceased) formed no part of her compensation claim and was first introduced in evidence before the Arbitrator; that the medical evidence of both parties concurred that the Respondent Worker has significant pre-disposing factors and a history of previous anti-depressant treatment, and further, that her depressive condition would have arisen in any event (but there are different views on the point as to whether it would have been as severe and lengthy).
·The balance of the submissions relate to the evidence and submissions before the Arbitrator, the regard to and treatment of the evidence and submissions by the Arbitrator, and the weight attached to the evidence by the Arbitrator.
·It is submitted that the Arbitrator’s stated reasons failed to address the Appellant’s submissions in relation to the Respondent Worker’s attendance at the funeral and subsequent treatment history, and that the Arbitrator failed to address the evidence obtained under cross-examination that the Respondent Worker’s condition deteriorated from that point and all treatment obtained up until September, 2001 related to “death panics”.
·At paragraph 24 of the Arbitrator’s Statement of Reasons for Decision, he failed to address the actual submissions made by the Appellant. In particular the Appellant submits: that the Arbitrator misconstrued the submission that the Respondent Worker’s condition arose from a non work-related, precipitating event; that the Arbitrator failed to address the submission made in relation to the “belief over time” of the Respondent Worker as being insufficient to establish causation in order to satisfy Section 4 of the 1987 Act, that test being objective, and requiring support by “some substantial contemporaneous documentary or corroborative evidence”; that the Arbitrator failed to address the submissions that the Respondent Worker’s history of work conflicts at Scone arose only after a claim for compensation had been made over two years after leaving that employment and only after treatment had been obtained that was associated with a non work-related precipitating event; that the Arbitrator failed to sufficiently address the submissions with regard to Section 9A of the 1987 Act and the fact that the depressive condition would have arisen in any event; that the Arbitrator failed to address the provisions of 9A(2)(d) and (e) put by the Appellant; and that the Arbitrator failed to address the evidence of the Respondent Worker, elicited under cross examination, in relation to the likelihood that the minor work incidents described could give rise to such a major depressive disorder.
·The findings of the arbitrator at paragraphs 29, 30 and 31 of his Statement of Reasons for decision as to the connection to the employment at Scone Public School, are flawed. In particular, the Arbitrator failed to address the substance of the Appellant’s submission that the claim of panic attacks was first raised some two years and seven months after her employment at Scone had ceased and further, the panic attacks were later described in evidence as stomach upsets and loss of voice, for which she sought treatment from Dr. Roberts-Thompson in 1993. The evidence is that she sought other explanations for her symptoms but gave no evidence of any other complaints between 1993 and her first attendance in August, 2000. The Arbitrator attributed significance at paragraph 30 of his Statement of Reasons for Decision, to her consultation with Dr. Roberts-Thompson, but there are no medical certificates or reports to particularize what are in fact, “vague physical symptoms”. This evidence was given undue weight and in any event, should have been excluded as it was not included or referred to in her Application to Resolve a Dispute. The Arbitrator did not take into account the Respondent Worker’s own evidence that she did not display any “symptoms” until after the attendance at the funeral in December, 1999. “In the Respondent’s [Appellant’s] submission there is no real psychiatric evidence of any complaints or difficulties until after this event and transferring from Scone, and having worked at Muswellbrook for a full year, where the work is described in very favourable terms.” There is no evidence that was before the Arbitrator to suggest that the Respondent Worker suffered any depressive condition while at Scone, contrary to the Arbitrator’s finding at paragraph 31 of his Statement of Reasons for Decision. “In fact, the Applicant’s [Respondent Worker’s] own evidence is that she was upset by some of the events at Scone but that ‘she coped’ and ‘developed coping strategies’.” There is no plausible connection between her condition and the employment at Scone, in the absence of evidence, given that any symptoms only manifested themselves after the attendance at the funeral some years later.
·The Arbitrator failed to take into account the most significant points of the case, being: that the depressive condition arose after an extended period of time of the occurrence of the alleged work events; that her substantial symptoms first arose and her condition deteriorated after the occurrence of a non work-related event; that the medical opinion was consistent with the fact that her condition would have arisen in any event due to significant pre-disposing and familial factors; that reports submitted on her behalf rely on a retrospective history provided by the Respondent Worker after over a year of extensive treatment, and that she stated that she lodged the claim at the suggestion of her treating specialist.
·The medical evidence relied upon by the Respondent Worker is “internally flawed” and is inconsistent, and consequently, should have been given little weight.
·Various aspects of the Respondent Worker’s views about her condition and how they unfolded in her mind, in the context of the history of events and her treatment, as referred to above, are outlined in some detail in the submission at paragraphs 1.8 to 1.11, and do not need to be reproduced, but are taken into account. It is further submitted by the Appellant that there is no evidence that the Respondent Worker ever made complaints or suffered psychological symptoms while at Scone, and did not do so until more than two years later. Any problems that she did have at Scone were alleviated by her move to Muswellbrook.
·There is insufficient evidence to establish a causal nexus in order for the Arbitrator to make a finding of a work related injury under section 4 of the 1987 Act, and more than sufficient evidence exists to make a finding in favour of the Appellant under section 9A of that Act.
·The Appellant cited the following cases in support of submissions made: Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; Dayton v Coles Supermarkets [2001] NSWCA (sic); Farrelly v Qantas Australia [2001] NSWCC 162; Tarry v Warringah Shire Council [1974] WCR (NSW) 1 CA; Craske v Wigan [1909] 2 KB 635, Zinc Corporation Ltd & Anor v Scarce [1996] 10 NSWCCR 373 and Thazine-Ave v WorkCover Authority (NSW) [1996] NSWCA (sic).
Respondent Worker’s written submissions
The Respondent’s written submissions dated 17 April 2003, were lodged in the Commission on 22 April, 2003, and may be summarized as follows:
·There is no demonstrable error of law and all findings were made on the basis of the evidence before the Arbitrator.
·Although the Commission is not bound by the rules of evidence, the arbitration proceeded generally in accordance with those rules. The evidence before the Arbitrator was in oral and written form, and the Respondent Worker’s oral evidence should be seen as supplementary to her statement of 26 September, 2001.
·The Respondent Worker alleged the psychological injury arose out of and in the course of her employment, in particular, from approximately 1992. “The relevant period covered the Applicant’s [Respondent Worker’s] employment as Assistant Deputy Principal at Scone Public School from 1991 until the end of 1998 and as an Assistant Deputy Principal at Muswellbrook Public School from 1999.” Reference is made particularly to paragraph 10 of her signed statement in describing her physical symptoms while employed at Scone Public School.
·The Appellant relied on a written statement of Merran Ruth Campbell dated 27 September, 2001 which in fact, supports the Respondent Worker’s allegation of suffering from stress while employed at Scone Public School.
·The Respondent Worker developed more severe symptoms around Christmas, 1999, which she came to characterize as panic attacks. In the initial stages she characterized them as “death panics” because she felt they commenced after attending a funeral on Christmas Eve, 1999. Until that time the Respondent Worker had not sought any medical treatment for depression or anxiety although she had modified her lifestyle in the expectation that this would alleviate her symptoms, which included sleeplessness and anxiety. She had been working at Muswellbrook Public School for 12 months where she continued to experience symptoms related to stress and anxiety. She was required to deal with some stressful situations although her overall workload had diminished. Although the Appellant submits that the Respondent Worker’s employment at Muswellbrook Public School did not contribute to her psychological injury, the Respondent Worker never made that concession, notwithstanding that she was cross-examined on the issue.
·The Respondent Worker was first treated for a psychological injury when she consulted Dr. Rogers on 22 August, 2000. She commenced to take antidepressant medication in November, 2000. She ceased work in June, 2001 because of her psychological symptoms and she came under the care of Dr. Timothy McDonald, psychiatrist on 15 June, 2001 and continued under his care. She provided a history to Dr. McDonald concerning the relationship between her employment and her medical evidence. The delay in providing a history to the treating doctors concerning a work injury was dealt with at paragraph 30 of the Arbitrator’s Statement of Reasons for Decision; the Arbitrator was persuaded that her evidence was consistent with the medical evidence and consistent with the development of a depressive condition during her employment at Scone Primary School, and this was accepted by the Arbitrator. “It is implicit in the arbitrator’s acceptance of the evidence of the Applicant and her treating doctors, that he found that the Applicant suffered physiological symptoms sufficient to found a diagnosis of a psychological injury.”
·The Arbitrator preferred the evidence of Dr. McDonald to that of Dr. Akkerman and exercised his discretion properly. In order for section 9A of the 1987 Act to defeat the Respondent Worker’s claim, the Commission would have to be satisfied that she would have suffered the same injury at the same time in any event. The Arbitrator’s reasoning in finding that the employment was a substantial contributing factor to her injury involves no demonstrable error of law.
The evidence of the Applicant was consistent with the medical evidence, and the Arbitrator accepted the Applicant’s explanations for the absence of contemporaneous reports of the injury.
·The Respondent Worker submits that the findings of fact by the Arbitrator do not turn on isolated portions of the evidence but on the evidence as a whole, which must be considered.
·The evidence of the Respondent Worker was accepted by the Arbitrator who regarded her explanation for the late reporting of work related symptoms, as plausible in the circumstances. As previously submitted, the statement of Merran Campbell, relied upon by the Appellant, corroborates to a significant extent, the evidence of the Respondent Worker in relation to psychological injury sustained in the course of her employment at Scone Public School.
·The authorities cited by the Appellant do not assist its case. “This appeal relates to a number of factual issues the determination of which by the arbitrator was final there being no right of appeal on a question of fact.” There was evidence upon which the Arbitrator based each of his findings of fact. No error of law has been demonstrated in relation to those findings: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139. Where there is evidence to support a finding of fact, an appeal from that finding does not raise an error of law: Workers Compensation (Dust Diseases) Board v Kelly [2000] NSWCA 57.
DISCUSSION OF EVIDENCE, AND FINDINGS
Respondent Worker’s evidence
According to her evidence, the Respondent Worker was appointed to the position of Assistant Principal/Student Welfare at the Scone Public School in 1992, being one of four new executive members including the Principal, the Deputy Principal and the other Assistant Principal. In her statement at paragraph 5 she said that they had each been given an increased workload for the first twelve months, in the belief that it would benefit them as “the time went on.” She said that she had experienced what she thought to be “adrenalin rushes” to help her cope with those additional responsibilities. On one occasion in 1994, the Principal had told her that a kindergarten enrolment had been lost because of her derogatory comments. On checking she ascertained that this referred to the child of her best friend and it was never the intention that this child be sent to the Scone Public School. She said that she then became paranoid about making any comments about the school, as a result of this incident. At paragraph 8 of her statement she gave details of a child exhibiting gross anti-social behaviour and biting her, with the result that she underwent blood tests over a period of six months. At paragraph 9 she told of the time demands upon her in this position at weekends and outside of working hours. She said that this had an impact on her family life, although her family supported her believing that this situation would continue only for a short period. She was also involved in meetings at the School before and after work, more so than any of the other executive staff. Other issues raised by her were missing meals, drinking copious quantities of coffee, not having time for a break from the demands of her work, vomiting, adrenalin rushes contributing to an upset stomach, being required to assist a new executive teacher, being required to teach a different grade each year, coping with difficult children and difficult parents, being required to undertake extra work to negotiate various situations because of the Principal’s leadership style, increased tension at home where she became a decision maker and not a listener, failure of the Principal to take over from her the responsibility for remedial assistance for an inefficient teacher, bringing her credibility into question; emotional reaction in dealings with the Principal and Deputy Principal, counselling being imposed upon her because of her “emotional state”, realization that teamwork at the School was non existent and that as a result, she developed a “professional mask”, and the hidden agenda of the Deputy Principal. In 1996 she underwent a hysterectomy and was absent on leave for the third term.
At paragraph 23 of her statement, the Respondent Worker said “I didn’t take any sick leave in respect to ‘stress’ whilst at Scone as I believed that I was efficient and still fulfilling all duties that were expected of me. Due to the fact that I was functioning and coping I did not feel that at that stage, that I had a ‘psychological’ problem.” She said that between 1997 and 1999 her symptoms continued. She said: “I felt I was running on empty. I knew that I had limited energies and I put what energy I had in completing my responsibilities and often deprived my family of the time they needed.”
The Respondent Worker said that she transferred to Muswellbrook at the beginning of 1999 where her workload “significantly decreased”. She was asked to accommodate a teacher who was under investigation in the Department. She said that this teacher could not be left alone with children and her behaviour was quite erratic. She said that this situation continued for longer than anticipated and “these were very trying times.” She said that she would cry in her private time and could not understand why this was happening when all areas of her life were apparently happy and settled. She went on to say at paragraph 29 of her statement, “I assumed it to be a hormone problem and started seeing my doctor. All blood and hormonal assessments were clear. I then looked at lifestyle, changed my diet, cut down caffeine, consulted a naturopath and a massage therapist.”
After attending the funeral on Christmas Eve, 1998 (this date is corrected by hand in the statement to read ‘1999’) and being “terribly shocked” at the physical condition of Steve Orton, her former Principal at Scone, whom she knew to be ill, she experienced “death panics”, and on returning to work these occurred every night just as she fell asleep. While she found these experiences to be terrifying, she said “…but as usual, I worked out ways to deal with them.” She spoke with Steve Orton about his illness, discussed her experiences with her (new) Principal and contacted a counsellor with whom she had a telephone session. (In May 1999 her doctor had suggested to her that she was depressed and prescribed medication for her). She said that the initial medication did not agree with her but she continued with other therapy and visits to the doctor. She was encouraged to look for a “trigger” for her depression. She said at paragraph 31 of her statement, “Nothing as far as I was aware in my past seemed an obvious cause to me.” She said at the time, that she was working with another teacher whose efficiency was in question. She stated at paragraph 32, “During the Christmas holidays, 1999-2000 I started hearing ‘a voice’ that was very morbid and in my view the opposite to my outlook on life. This concerned both my doctor and myself. My short term memory was poor and although working at school on Saturdays and Sundays did I (sic) feel that I was getting on top.” She referred in paragraph 34 to an error she made in relation to the preparation of a Quality Teaching Award paper that she completed for the wrong person. She spoke of a bullying incident in the playground the next day and on nominating one of the children involved in the incident, she ascertained that the same child had been sitting outside of the Principal’s office at that particular time. She thought that she may have been starting to see things, that did not happen. She said she cried and was upset at having made two mistakes in two days. She went home and remained in a state of trance, feeling nothing. She said that this continued for about a week and during this time she attended her doctor, Dr. Delma Mullins. She said that she made arrangements for a “psychiatric appointment”. She added, “Dr. McDonald prescribed ‘“Efexor”’ and told me that when the medication was effective I could return to school. He prescribed plenty of rest and to do things that made me happy.”
The Respondent Worker said that she took sick leave in week 6 of the term and returned at the resumption of term three on 23 July, 2001. She stated at paragraph 36, “My psychiatrist recommended that I return to school part time as I was missing it and it makes me happy. Due to this suggestion my Principal requested that I ring Kerri Beilfeld, the District Staff Welfare Officer. I appraised her of the situation including the death panics and the voice.” She said at paragraph 37 that during the holidays she was feeling better although she became anxious just before returning to work. She felt drained and tired after a few hours and considered that she needed an increase in her medication. The “voice” returned during week 4 of the third term, commencing 13 August, 2001, and she then lodged her claim for workers compensation. She returned to her psychiatrist on 27 August, 2001 and her medication was increased over the following two weeks when she was absent from work. In paragraph 38 of her statement she said that she returned to work on 17 September, 2001 performing only ten hours per week. Her statement concludes with the following comments at paragraphs 39 and 40:
“I have come to realize that my present medical state is the accumulative result of the last nine (9) years as an Assistant Principal. Although I judged my ability to cope in the past as being an asset, it has been to my disadvantage. In hindsight I am disappointed that Steve Orton used my talents to achieve his goals, regardless of the effects that it has had on me.
I lodged my claim for Workers Compensation on the advice of my medical providers and my current Principal. I was of the belief that after a certain period of time with my current medication that I would be fit and well enough to undertake full time duties.”
Her sworn evidence before the Arbitrator substantially supported and elaborated upon the contents of her statement, albeit in more detail, and outlined examples of other incidents and events that caused her distress. Her evidence is recorded in the transcript of the arbitral proceedings, and is before me in this appeal. The Respondent Worker did not, except in cross examination, restate or elaborate upon the incident, outlined in her statement, that the Appellant claims is the non-work event that gave rise to the injury sustained by her, that is, the attendance at the funeral and the “death panics” that ensued. She agreed that it was after this incident that she began to experience “death panics”. However, she said that many other things affected her work but the “death panics” troubled her. She further agreed under cross-examination, that between 1992 and August, 2000 she did not seek treatment for a psychological condition as she did not see it “as psychological…I saw it as my body.”
In summary, the Respondent Worker’s evidence is that she was under a good deal of pressure during her employment at the Scone Public School, for a variety of reasons, and experienced a number of difficult incidents and situations that caused her distress. Notwithstanding that she suffered in the way she has described, according to her evidence, she developed mechanisms to cope with her work, the pressures of her work, the situations that arose in the workplace, and the people with whom she dealt in the workplace. She did not realise that she had a psychological problem or injury, this becoming apparent to her after she had been working at Muswellbrook for a time. While she was experiencing some difficulty at Muswellbrook she said that being at that school was “great”: “I loved being in the new classroom in the school, and the boss would come down, you know, at half past one and say, ‘What are you still doing here? Go home, girl. You’ve got a family to go to.’ I thought I’d died and gone to heaven. But I was still waking up early, having trouble remembering at times. I had less to remember and I was having trouble remembering it, so, of course, the diary was under my arm all the time.” She indicated that as she was happy in what she was doing and it did not occur to her, apart from pushing herself, that there was a problem at that time. However, she experienced the “death panics” and heard the “voice” during and after the Christmas school holiday period 1999/2000, and following two specific incidents at the Muswellbrook School, she consulted Dr. D Mullins who referred to her a psychiatrist, Dr T. McDonald, whom she first saw on 15 June, 2001. According to Dr. Mullins’ report of 24 October, 2001, her first consultation with the Respondent Worker was on 10 November, 2000. The Respondent Worker indicated in cross-examination that she had not mentioned any workload problems to Dr. Mullins as at 12 June, 2001: “I don’t think I mentioned any problems at that stage because I wasn’t really able to put things together, as she said in the report.” A further comment concerning the Respondent Worker’s view of the development of her condition is found at page 43 of the transcript when in answer to a question regarding the history of the events, she said “It was probably not until it became such a problem and I had been analyzing other health issues that weren’t there that I had to start to find what it was.” When asked in cross examination if her symptoms of feeling sick and losing her voice were in evidence before she started at Scone, she said “I think there may have been one but, then, I was doing a lot of standing on a – in the playground over other children and talking, which I hadn’t done before, so – but it would be strong and fine and then it would close and then sometimes it would just not be there at all.”
Medical evidence.
As previously stated, the Appellant does not dispute that the Respondent Worker suffers a significant psychological condition but contends that no such injury arose out of or in the course of her employment, and in the alternative, that the employment with the Appellant was not a substantial contributing factor to any injury as alleged, or at all. The fact and the general nature of her condition are not in issue.
The medical report of Dr. D. Mullins, dated 24 October, 2001 sets out a history of consultation with the Respondent Worker from 10 November, 2000. Dr. Mullins stated that she presented with a history of panic attacks and her thoughts were mostly centred around death at that time. Dr. Mullins noted that the Respondent Worker had been seen by Dr. Rogers on 22 August, 2000 and had complained of the same symptoms. She had also complained of early waking since Christmas, 1999. Dr. Rogers had prescribed “Aropax” for the panic attacks and associated depression. The Respondent Worker experienced side effects from this treatment and consequently, it was terminated. Blood tests were undertaken to ensure that there was no physical reason for her anxiety attacks and the results of all tests were normal. Dr. Mullins then started the Respondent Worker on a course of “Aurorix” 300mg morning and night. Following this and some counselling with the school counsellor, there was a decrease in the level of her anxiety. In January, 2001, the Respondent Worker gave to Dr. Mullins, a history of nightmares associated with death. This ceased after treatment with “Aurorix”, but the Respondent Worker noted a decrease in her alertness, particularly when driving. Following this, Dr. Mullins reports that she became morbid in her thoughts and became disoriented and displaced. Her symptoms indicated very severe depression. Dr. Mullins discontinued the treatment with “Aurorix” and referred to her a psychologist, Dr. Tarnya Davis. Dr. Mullins states, “In consultation with Cathryn we explored many issues and there was no real reason for her severe depression.” She went on to report “My next follow-up with Cathryn was on 11 May 2001. In relation to her depression, she had seen the psychologist, which she felt was of no benefit. The continuation of the death thoughts and associated depression was still quite marked. I commenced her on treatment with “Serzone” at that stage, as well as continuing with counselling.”
Dr. Mullins next reviewed the Respondent Worker on 12 June, 2001 and indicated that she complained of side effects from the “Serzone”, which Dr. Mullins understood to be “side effects with Serotonin surge”. This was described as racing thoughts and increased disassociation. She was assessed as being severely depressed and in need of urgent psychiatric assistance. Arrangements were made for her to see Dr. Tim McDonald, a psychiatrist and in the meantime, “Efexor” 75mg per day was prescribed on the recommendation of Dr. McDonald. Dr. Mullins states that the Respondent Worker was seen by Dr. McDonald on 15 June, 2001 and his diagnosis was of a major depressive episode. Some improvement was noted when Dr. Mullins saw her again on 22 June, 2001 but she continued the time off school that had been certified on 12 June, 2001.
As her depression came under control the Respondent Worker was able to articulate her thoughts and problems with her life stresses. She gave no indications to Dr. Mullins of physical or emotional abuse or poor relationships causing depression. She described severe stresses associated with her workload at school. Dr. Mullins said, “She pre-dates these back to 1992 in recounting history.” She described the Respondent Worker as a very active lady who demands a high standard of herself, and said that she identified her work pressures as being overwhelming “but she is one to get on with things and hide her true feelings.” Dr. Mullins said that in continuing to strive to achieve the workloads, the Respondent Worker increased the severity of her depression, and only when the pressure of work was removed, was she able to significantly improve. Her depression had improved on 6 July, 2001 before she returned to work. On 3 August, 2001 Dr. Mullins increased her medication and arranged for her to work ten hours per week. On 24 August, 2001 Dr. Mullins noted that the Respondent Worker was regressing in terms of managing her depression and said that she complained of poor memory, fleeting concentration, decreased appetite and loss of 4 kg in weight over the previous month. She had not taken on additional responsibilities at work but found that she was exhausted after attending work, and her negative thoughts became more prominent. Dr. Mullins observed, “I note that Cathryn was very good at putting on a brave face and underneath she is actually a bundle of anxiety.” Dr. Mullins describes gradual improvement in the condition of the Respondent Worker but at the time of the report, states that she is a long way from being fully cured. She further states that from the history that the Respondent Worker gave her, employment with the Department of Education and Training is a substantial contributing factor. Dr. Mullins states “At present, the plan is to return Cathryn to the responsibilities and work she had previously performed with a reduction in her workload and demands. Cathryn enjoys her work and I would understand is very good at the role she takes on.” Assessment at the time of the report was ongoing.
In his report dated 27 June, 2002 Dr. Timothy McDonald, Consultant Psychiatrist said that the Respondent Worker had given him a history of disturbances commencing at Christmas 1999 and that she recalled having a series of spontaneous “death panics” which were frightening, and ruminations regarding death and the afterlife, associated with palpitations and difficulty in breathing. These episodes would last a few seconds and were followed by a general feeling of unease. Dr. McDonald further states, “She thought this might have been triggered by attending a funeral and seeing there her old boss, who was currently looking very ill from cancer. Not long afterwards these panicky episodes began waking her at night, making it difficult for her to return to sleep. At first she did not feel depressed, but insidiously her enjoyment of life started to diminish. By nature she tended to be optimistic and high-spirited. After eight months, namely in August 2000, she sought treatment because she was feeling slowed down and low in mood.” In recounting her history Dr. McDonald remarked, “With regard to her previous history, she believed that she may have had a period of depression after the death of her brother when she was about twenty – four years of age. At the time she took the antidepressant Tryptanol to help her sleep and reduce her edginess. She was on no other medications apart from “Efexor”. Past medical history included Meniere’s syndrome, and a hysterectomy, which was effective in reducing pelvic symptoms. Thyroid function tests had been normal…Her mother had been treated for depression, and her brother Alan, who died from leukaemia, also suffered depression and made at least one attempt at suicide.” Dr. McDonald stated that considering the history of events and the aural history provided by the Respondent Worker, it is his opinion that a series of stressful events, and an excessive load of work and responsibility from the time she became Assistant Principal at Scone Public School, have together, been a substantial contributing factor in the development of her panic attacks and subsequent major depression with melancholic features. He went on to say that there may have been inherited vulnerability to depression, given that her mother and her brother had both experienced depression. He said that it is significant that her symptoms tended to worsen with increases in her hours or responsibilities at work. Her condition had not stabilized at the date of the report. Dr. McDonald concluded his opinion by stating, “It is important for me to emphasise that at no stage have I found Cathryn Ingle to be in any way an unreliable or implausible historian.”
Dr. Klaas Akkerman provided reports dated 12 November, 2001, 6 November, 2002 and 22 January, 2003. In summary he agreed with the treatment and prognosis, and expected a full recovery to occur. However, he consistently expressed the opinion that employment was not a substantial contributing factor. He said that the Respondent Worker’s condition was pre-existing. He stated that when he examined her, he found that she suffered from major depression, which was at that time, in remission. He said in his report of 6 November, 2002 “…the main cause of her illness is constitutional and that it might be related to her brother’s death in 1982 and a hysterectomy in 1996…I do not believe that her disease returned as a consequence of her employment. Therefore I do not believe that her aggravation was substantially contributed to by her employment. I still believe that non work-related factors such as her constitutional factors, her hysterectomy and possibly the incidents in 1992 (sic) were the contributing factors.” This is consistent with his earlier report dated 12 November, 2001 in which he stated that her previous history in 1982 suggests that she was predisposed to her depression. In a letter dated 23 November, 2003 from the Respondent Worker to the Insurer, she expressed dissatisfaction with the her consultation with Dr. Akkerman on the basis that he did not bring his “paperwork” to the meeting; he needed to ask a series of questions to “refresh his memory”; he asked “over 70” questions whereupon the interview was concluded; he gave her no opportunity to discuss or elaborate her “concerns”; he told her that he was only required to answer the questions that had been asked of him by the Insurance Company, and she “…left the building feeling totally disillusioned with the process and that, what has been the most difficult time of my life, did not warrant being treated seriously.”
Reference is made in the evidence to the Respondent Worker consulting with a Dr. Roberts-Thompson in 1993. This evidence is challenged on appeal because it was not included with or referred to, in the Application to Resolve a Dispute. However, no certificates or reports from Dr. Roberts-Thompson were sought to be introduced into evidence; the reference to Dr. Roberts-Thompson was made by the Respondent Worker in her oral evidence before the Arbitrator; no objection to it was taken before the Arbitrator, and the Respondent Worker was duly cross-examined on this aspect of her evidence. In his Statement of Reasons for Decision, the Arbitrator did not attribute undue weight to it but merely referred to the evidence regarding her consultation with Dr. Roberts-Thompson as being consistent with other evidence given by her. In any event, the Arbitrator was referring to the evidence of the Respondent Worker as to what she said she did, and why she did it, and not to any substantive medical conclusions or opinions that may have been reached by Dr. Roberts-Thompson.
Evidence of Merran Ruth Campbell
A statement made by Merran Ruth Campbell was lodged with the Reply by the Respondent Employer, the Appellant in this appeal, and was placed in evidence before the Arbitrator. Ms Campbell worked with the Respondent Worker both at Scone and Muswellbrook. Her statement outlines briefly the “new” environment that was introduced at Scone, describing it as “outcome based education”. She states, inter alia:
“Initially, I was aware that there was a period of adjustment for Cathryn to a new school and a new Executive position. She was very busy and it was evident to me that her diet suffered. There were times where Cathryn confided in me letting me know that she was not well. She indicated on occasions that she felt nauseated. She demonstrated times of nervousness. One incident comes to mind where she was very nervous about conducting a staff meeting. She told me that she hadn’t eaten breakfast and her stomach was churning.
Over the following five (5) years Cathryn appeared to be a happy member of staff. However, at times she confided in me and made it evident that she was under a great deal of pressure and was not well.
I transferred to Muswellbrook in 1998. Cathryn Ingle remained at Scone until the commencement of 1999 when she transferred as an Assistant Principal to Muswellbrook Public School. To my belief Cathryn was coping with her position extremely well at Muswellbrook Public School.”
The evidence and weight of the evidence
On a close consideration of the whole of the evidence that was before the Arbitrator, the submissions that were made to the Arbitrator, and the submissions made in this appeal, I find that the Arbitrator was entitled to arrive at the decision that he made in this matter. While I do not agree that the Statement of Reasons for Decision is fatally flawed as has been suggested by the Appellant, I am of the view that the reasons for the findings and decision could have been and should have been, more detailed and comprehensive in their articulation, given the difficult issues and circumstances involved. The medical reports and opinions of Dr. Mullins and in particular, of Dr. Timothy McDonald, Consultant Psychiatrist, are persuasive. Both had the opportunity to deal with and observe the Respondent Worker over a considerable period of time. Both were firm in their view that she was credible; she had done her best to cope with the difficulties at Scone (although she had not at that time come to the realization that she had a psychiatric or psychological problem, which was later diagnosed by Drs Mullins and McDonald); she suffered severe depression, and that her employment at Scone was a substantial contributing factor to her condition. On the other hand, Dr. Akkerman is of the opinion that her employment was not a substantial contributing factor and that her severe condition was pre-existing. He did not however, have the same opportunity as Drs Mullins and McDonald to observe and deal with her substantially, or over any significant period of time, or to monitor her condition, or to treat her. It was reasonable in the circumstances, for the Arbitrator to give greater weight to the authority of what were more informed medical opinions of Drs. Mullins and McDonald. As previously stated, the panic attacks that occurred after the Respondent Worker attended the funeral before Christmas in 1999 are significant but cannot be viewed in isolation from the rest of the evidence. Similarly, while the argument that she may have suffered this severe depression at this time in any event has been mounted, it is not overly persuasive, having regard to the whole of the evidence that was before the Arbitrator. The Arbitrator quite properly considered and took into account, the circumstances, events and her condition (according to her evidence and the diagnosis and opinions of each of Dr. Mullins and Dr. McDonald) over the whole of her employment at Scone, in arriving at his decision. That the Respondent Worker endeavoured to “manage” her depression and adverse reactions, and did not at the time recognize the precise nature and severity of her condition, does not automatically lead to a conclusion that her injury did not arise out of or in the course of her employment. Moreover, the contents of the statement of Ms Merran Campbell, submitted by the Appellant, tend to lend support to the Respondent Worker’s claims with regard to the adverse impact that her work and responsibilities at Scone, had on her. The Arbitrator had the opportunity of listening to and observing the Respondent Worker while she gave her oral evidence in chief and was tested by the Respondent on that evidence. He regarded her as a credible witness and accepted her evidence. Finally, I note that the Arbitrator briefly referred to submissions made, and he stated at paragraph 25 that he had taken all of the materials and oral evidence into account.
In essence, the Appellant submits that the Arbitrator did not make his findings and decision properly, on the basis of the evidence and in accordance with the weight of the evidence. If this was established, it would be an error of law and not in compliance with the requirements of Rule 38 of the Interim Workers Compensation Commission Rules 2001 (“the Rules”), which applied at the time. Rule 38 provides:
“38 Principles of Procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(a)evidence should be logical and probative,
(b)evidence should be relevant to the facts in issue and the issues in dispute,
(c)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d)unqualified opinions are unacceptable.”
The reasons in the Arbitrator’s Statement of Reasons are brief and he has not complied strictly with the requirements of Rule 41(2), which provides:
“(2).A statement of the Commission’s reasons attached to the certificate is to include:
(a)the findings on material questions of fact, referring to the evidence or material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusion that it made.”
Nevertheless, the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444), and, without combing it for error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259), it is possible to reach the conclusions and make the findings that are found in the Arbitrator’s decision. It is for the Arbitrator to decide whether to accept or reject evidence and it is not open to a Presidential member to displace his findings on the basis of credit unless the decision is affected by demonstrable mistake or misapprehension about relevant facts, or the value and importance of the advantage enjoyed by the Arbitrator have been misused: State Rail Authority v Earthline Constructions Pty Limited (In liquidation) (1999) 160 ALR 588. I can find no evidence of any such error in the decision. The Arbitrator properly exercised his function in assessing her credibility and truthfulness (Abalos v Australian Postal Commission (1990) 171 CLR 167), and did not find her wanting in this regard. Finally, there was sufficient logically probative evidence upon which the Arbitrator could reasonably make his findings, and it was a matter for him to decide the weight to be given to that evidence.
Liability
It remains to be considered whether the Arbitrator’s decision, based on his findings, are in accordance with the relevant law. Section 4 of the 1987 Act provides that an injury:
“(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c)does not include…a dust disease…or the aggravation, acceleration, exacerbation or deterioration of a dust disease, ...”
Section 9 of the 1987 Act provides that a worker who has received an injury shall receive compensation from the worker’s employer in accordance with the Act. Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.
Section 9A of the 1987 Act provides:
“9ANo compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of any injury to which section 10, 11 or 12 applies.”
For an injury to arise out of employment giving rise to liability for payment of compensation, there must be a causal connection between the injury and the work that was required to be performed. If the person’s employment in that particular job caused or to some extent contributed to the injury sustained, then the injury can be taken to have arisen out of the employment: Nunan v Cockatoo Docks and Engineering Co Pty Ltd (1941) 41 SR (NSW). In Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504, Starke J. said, inter alia, at page 517:
“The expression ‘arising out of’ imports some kind of causal relationship between the employment, but it does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do – out of his service: Stewart v Metropolitan Water Sewage and Drainage Board (1932) 48 CLR 216 at 226.”
See also Tarry v Warringah Shire Council [1974] WCR (NSW) 1 (CA) in which sufficient causal connection is considered.
His Honour went on to say, at page 518:
“An injury which arises directly out of circumstances encountered, because to encounter them falls within the scope of employment, is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works, then apart from the question of his own misconduct, he at once associates the injury with his employment.”
The phrases “arising out of employment” and “in the course of employment” are alternatives, it being sufficient to satisfy one of these to meet the requirements of the section.
An injury arising in the course of employment is one that is sustained during the time that the person is engaged in the performance of his or her duties of employment and other things that are reasonably incidental to it: Davidson and Another v Mould [1944] 69 CLR 96 and Hatzimanolis v ANI Corporation Ltd (1992) 8 NSWCCR 242. See also Chubb Security Australia Pty Ltd v Annette Treverrow [2003] NSW WCC PD 17 at 31-33 and Koutroullis v E R McNamara Pty Ltd (1993) 9 NSWCCR 196 at 200, for a discussion of the law in relation to the meaning and application of the phrase “in the course of employment”, in section 4 of the 1987 Act. The answer to the question whether a worker has been injured in the course of employment is assisted by asking – was the worker doing something which he or she was reasonably required or authorised to do in order to carry out his or her duties: Humphrey Earl Ltd v Speechley (1951) 84 CLR 126. In Muscat v Woolworths Ltd [2000] 20 NSWCC 16, Neilson J, in the considering the phrase “in the course of employment”, said:
“However, it is clear that they [viz the Court of Appeal] at least accept that there must be a causal linkage of some sort between the injury and the employment, although not such as great a causal linkage as ‘arising out of employment’.”
See also Federal Broom Company Pty Ltd v Semlitch (1994) 110 CLR 626.
Having regard to the evidence before the Arbitrator I find that it was open to him to conclude that the injury sustained by the Respondent Worker arose out of or in the course of her employment with the Appellant, within the meaning of section 4 of the 1987 Act. He did not accept that the psychological injury arose outside of her employment or that it was isolated to the one, non-work incident (as discussed in Zinc Corporation Ltd & Anor v Scarce [1996] 10 NSWCCR 373, cited by the Appellant), nor that the work factors were of a minor or secondary nature. The High Court, in Tame v New South Wales; (2002) 76 ALJR 1348 at 207 has stated that individuals may sustain recognizable psychiatric illnesses without any particular sudden shock (per Gummow and Kirby JJ). While she may have experienced a sudden shock when she attended the funeral, that fact does not, of itself, necessarily discount the other (work related) factors as causes of the injury. The requirements of section 4 are satisfied. Having regard to the foregoing, and subject to a consideration of section 9A, the provisions of section 9 of the 1987 Act, apply.
It is not the fact of employment but the actual work that the injured person is required to do in the course of that employment that is relevant: Muscat v Woolworths (supra). In Stanton-Cook v TAFE Commission (NSW) [1999] 17 NSWCCR 5, Neilson J said:
“Since the enactment of s9A it is insufficient to prove that the employee was in the course of his employment. It must be established that the injury arose out of the employment, that is there was a causal relationship between the injury and the work which the worker is required, expected or authorized to do in pursuit of his employment contract.”
Case note (1) in Mercer v ANZ Banking Group Ltd (2000) 20 NSWCCR 70 conveniently summarises the position thus:
“In applying s9A(1) of the Act it is the strength of the causal linkage between the employment concerned and the injury that is in question. The words ‘employment concerned’ reinforce the view that it is the work activity in which the worker was actually engaged at the time of injury that is relevant. A ‘contributing factor’ must be some event, or occurrence in the course of employment or some characteristic of the work performed or the condition in which it was performed. The ultimate question is whether the activity or task was a ‘substantial contributing factor to an injury’ bearing in mind that the concept is exegeted in s9A (2) and 9A(3). Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 applied.”
The term “employment” in section 9A(1) includes matters incidental or ancillary to the employment of the conditions in which it is performed: Muscat v Woolworths Ltd (supra). A substantial contributing factor within the meaning of the section is not equivalent to an injury arising out of employment, the test being less stringent than that: Mercer v ANZ Banking Group Ltd (supra). Case note (3) at page 283 in Muscat v Woolworths Ltd (supra) conveniently summarises the position:
“For an employment to be a substantial contributing factor to an injury within the meaning of S 9A of the Act, it is sufficient that the injury arose in the course of employment and has some causal connection with employment less than arising out of employment. The test is thus less stringent than that requiring that the injury arose out of and in the course of employment. Mercer v ANZ Banking Group (2000) 20 NSWCCR 70 applied.”
Mason P in that case, considered and followed Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 per Ashley J at 54. Employment may be a substantial contributing factor to an injury that does not arise out of employment, but that is not so in the instant case.
Consistent with the Arbitrator’s findings on the evidence that the Respondent Worker’s employment at Scone was a substantial contributing factor to the injury sustained by her (following his finding that the injury arose out of or in the course of that employment), it is not the case that the employment-related factors are minor compared to the “panic attacks” that followed her attendance at the funeral. It is reaffirmed that this particular incident and its consequences cannot be viewed in isolation and must be considered in the context of the whole of the evidence before the Arbitrator. On this basis, the distinction made in Dayton v Coles Supermarkets [2001] NSWCA 153, does not apply in the instant case. Similarly, the distinction in Farrelly v Qantas Australia [2001] NSWCC 162, does not apply.
The Appellant cited Thazin-Aye v WorkCover Authority (NSW) [1996] NSWCA 340 as authority for the principle that a worker who suffers frustration and emotional upset but no other physiological affect does not suffer injury within the meaning of section 4 of the 1987 Act. However, there was evidence given, supported by medical opinion, of cumulative physiological manifestation over a considerable period of time, which the Arbitrator accepted as being sufficient to come to the conclusion that an injury was sustained by the Respondent Worker, and that it arose out of or in the course of her employment with the Appellant.
While a finding that injury arose during the course of employment is not determinative of employment being a substantial contributing factor, having regard to section 9A(3) of the 1987 Act, it is a relevant consideration in such a determination: Supair Pty Ltd v Sweeney (2000) 20 NSWCCR 514. This, along with the other evidence, establishes the employment as a substantial contributing factor beyond the “merely because” test prescribed in section 9A(3): Mercer v ANZ Banking Group Ltd (supra); Farrelly v Qantas Airways Ltd (supra), and Jadoul v Qantas Airways Ltd (2001) 22 NSWCCR 229. However, section 9A(3)(d) and (e) require further comment. The Appellant submitted, “medical opinion was consistent that the condition would have arisen in any event due to significant pre-disposing and familial factors.” However, my reading of the evidence is that Dr. Akkerman, is the only person who put this beyond a possibility, and as a “likelihood”, but even then, not necessarily at or around this particular time, as envisaged by the section. As previously stated, the Arbitrator took all of the evidence into account and arrived at the reasonable conclusion, that the Respondent Worker satisfied the requirements of the Act. There is evidence of “familial factors”, but while the Act requires that this be taken into account, it is not determinative of the proposition that fundamental vulnerability automatically precludes a finding favourable to the Respondent Worker, pursuant to section 4, when weighed in the context of the whole of the evidence.
DECISION
On the whole of the evidence, no error of law, fact or discretion has been made by the Arbitrator. The appeal is not allowed. The decision appealed against is confirmed.
COSTS
As the appeal has been unsuccessful, the Appellant is to bear the costs in accordance with the Act and Regulations.
Gary Byron
Deputy President
Registrar Date:
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