Department of Environment, Climate Change & Water v J
[2010] NSWWCCPD 56
•26 May 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Department of Environment, Climate Change & Water v J [2010] NSWWCCPD 56 | ||||
| APPELLANT: | Department of Environment, Climate Change & Water | ||||
| RESPONDENT: | J | ||||
| INSURER: | Allianz Australia Insurance Limited | ||||
| FILE NUMBER: | A1-9231/09 | ||||
| ARBITRATOR: | Mr R Foggo | ||||
| DATE OF ARBITRATOR’S DECISION: | 19 February 2010 | ||||
| DATE OF APPEAL DECISION: | 26 May 2010 | ||||
| SUBJECT MATTER OF DECISION: | Psychological injury; post-traumatic stress disorder with depression and anxiety; disease; disease of such a nature as to be contracted by a gradual process; sections 4(b)(i) and 15 of the Workers Compensation Act 1987; date of incapacity; deemed date of injury; transitional provisions; clause 3 of Part 18C of Schedule 6 of the Workers Compensation Act 1987; prior non-compensable impairment | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | TurksLegal | |||
| Respondent: | MRM Lawyers | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, paragraphs one, five and six of the Arbitrator’s determination of 19 February 2010 are confirmed. Paragraphs three and four of the determination are revoked. Paragraph two of the determination is revoked and the following order made: “2. The respondent employer is to pay the applicant worker weekly compensation from 21 June 2008 to date and continuing under section 37 of the Workers Compensation Act 1987 at the applicable statutory rate for a worker with no dependants.” | ||||
| The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200.00 plus GST. The appellant employer is to pay the respondent worker’s costs of the arbitration, as agreed or assessed. The arbitration is certified as complex under Item 4 of Table 4 of Schedule 6 of the Workers Compensation Regulation 2003 and an uplift of 30 per cent applies to those costs. | |||||
BACKGROUND
The respondent worker, Ms J, started work in 1992 as a seasonal ranger and customer service officer with the National Parks and Wildlife Service of New South Wales, now known as the Department of Environment, Climate Change & Water (‘the Department’). At that time, she was still studying at university. She completed her Bachelor of Science degree at the Australian National University in 1994 and commenced full-time employment, as a park ranger, with the Department in the Upper Hunter District at Muswellbrook in about January 1995.
Ms J remained in that position until the Department transferred her to Sydney in 1998. Ms J alleged that, in her period working in the Upper Hunter District, two senior staff members repeatedly bullied and sexually harassed her. She developed anxiety, fear of being at work and nightmares about their conduct. She felt unsafe and unsupported at work. Those feelings continued after her transfer to Sydney.
Ms J received counselling from various sources after 1998, but was unable to continue with counselling because of the cost. She submitted a workers’ compensation claim form on 3 August 2006 in which she described her injury as “anxiety/post traumatic stress disorder/depression” as a result of “workplace bullying & harassment including sexual assault, numerous incidents from 1995 to 1998 – as Ranger in Upper Hunter District”.
As Ms J had no time off work in August 2006, it is not clear exactly what compensation she claimed, if any, when she submitted her claim form in August 2006. Nevertheless, the Department’s workers’ compensation insurer, Allianz Australia Insurance Limited (‘Allianz’), accepted liability in a letter dated 13 October 2006.
Ms J commenced one year’s unpaid leave in 2007. Between May and December 2007, she worked as a helicopter pilot at Katherine in the Northern Territory. She stopped that work because of a worsening of her condition.
Though it is unclear from the documentary evidence, I assume that Ms J re-submitted her claim for compensation in December 2007. Consistent with the previous acceptance of liability, Allianz paid voluntary compensation from December 2007 until it gave notice on 6 June 2008 that it declined liability and would cease payments on 20 June 2008.
Allianz declined liability on the ground that Ms J’s condition was not related to her “work-injury on 24 July 2006”. Allianz based that decision on a report from Dr Christine Salisbury, clinical psychologist, dated 18 March 2008, in which Dr Salisbury concluded that, as the worker had made no further request for counselling after 2002, she believed that the impact of the alleged work events would have “resolved”.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 12 November 2009, Ms J sought weekly compensation from 21 June 2008 to date and continuing, hospital and medical expenses of $31,765.29, and lump sum compensation in respect of a 15 per cent whole person impairment as a result of her psychiatric and psychological disorder.
The Department filed a Reply on 3 December 2009 in which it disputed liability on the grounds set out in Allianz’s letter of 6 June 2008.
The Commission listed the matter for conciliation and arbitration on 28 January 2010. On that day, counsel for Ms J amended the Application to allege the date of injury to be “between January 1995 and 30 March 1998, alternatively [a] deemed date of injury 27 July 2006”. In the course of submissions, counsel suggested that the correct deemed dated of injury was probably 11 December 2007 (T24.48-25.9), that date being the date on which Ms J was first incapacitated as a result of her injury.
Counsel also amended the description of how the injury occurred to read as follows:
“Between January 1995 and 30 March 1998 the applicant experienced stressful events in the course of her employment with the respondent and sustained psychological injury, or such events were a contributing factor to the aggravation etc of the Applicant’s psychological injury.”
The matter proceeded at arbitration with lengthy submissions, but neither side called any oral evidence. In a reserved decision delivered on 19 February 2010, the Arbitrator stated that the following issues were in dispute:
(a)whether the worker suffered any psychological injury in the course of or arising out of her employment after February 1998;
(b)whether the worker suffered a disease of gradual process or an aggravation of a disease of gradual process, and
(c)whether the worker’s incapacity resulted from her psychological injury.
The Arbitrator found that Ms J suffered a disease of gradual process, namely Post-Traumatic Stress Disorder (‘PTSD’) and that the deemed date of injury was the date on which she was first incapacitated, 11 December 2007. He ordered the payment of weekly compensation at the current weekly wage rate from 21 June 2008 to 21 December 2008 and thereafter at the maximum statutory rate for a single worker. He remitted the claim for lump sum compensation to the Registrar for referral to an Approved Medical Specialist (‘AMS’) for assessment.
The Commission issued a Certificate of Determination on 19 February 2010 in the following terms:
“The Commission determines:
1.The Applicant suffered a disease of gradual process, namely Post Traumatic Stress Disorder. The deemed date of injury is 11th December 2007.
2.The Respondent is to pay the Applicant weekly payments of compensation from 21st June 2008 to 21st December 2008 at the rate of $1,402.23 per week and thereafter and continuing at the maximum statutory rate for a single worker.
3.The Applicant’s psychiatric and psychological disorder is remitted to the Registrar for referral to an Approved Medical Specialist for assessment in accordance with the WorkCover Guide to the Evaluation of Permanent Impairment with a date of injury of 11th December 2007.
4.The documents to be sent to the AMS are those accepted in to these proceedings, namely;
a.Application to Resolve a Dispute and attached documents
b.Reply and attached documents
5.The Respondent is to pay the Applicant’s Section 60 expenses upon production of accounts and/or receipts and/or HIC Notice of Charge.
6.The Applicant’s entitlement to costs and Section 67 are reserved.”
In an appeal filed on 11 March 2010, the Department sought leave to challenge three aspects of the Arbitrator’s determination. First, that the worker suffered a disease of gradual process, namely PTSD, second, that the deemed date of injury was 11 December 2007 and, third, that the worker was entitled to compensation at her current weekly wage rate for the period from 21 June 2008 until 21 December 2009. The Department has not challenged the Arbitrator’s award of weekly compensation from 22 December 2008 to date and continuing or the order for the payment of hospital and medical expenses upon production of accounts and/or receipts.
The relevance of the challenge to the deemed date of injury is that, if the injury occurred in 1998, as the Department alleged, Ms J would have no entitlement to lump sum compensation because the Table of Disabilities applicable to injuries received before 1 January 2002 made no provision for lump sum payments in respect of psychological injuries. Subject to the transitional provisions referred to below, lump sum compensation is only recoverable for psychological injuries received after 1 January 2002.
Neither party referred to the transitional provisions in Part 18C of Schedule 6 of the Workers Compensation Act 1987 (‘the 1987 Act’), which deal with the entitlement to lump sum compensation where a proportion of the permanent impairment is a “previously non-compensable impairment”. A previously non-compensable impairment is a loss or impairment “that is due to something that occurred before the commencement of the amendments to Division 4 of Part 3” of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). That is, something (as opposed to an injury) that occurred before 1 January 2002.
In a notice dated 20 May 2010, the Commission referred the parties to Part 18C of Schedule 6, and to SAS Trustee Corporation v Pearce [2009] NSWCA 302 (‘Pearce’), and listed the matter for submissions in a teleconference on 24 May 2010. I have dealt with this issue and the parties’ submissions on it under “Transitional Provisions” commencing at [114] below.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE EVIDENCE
Ms J’s evidence is set out in her statement dated 6 February 2009, to which she attached several documents. Her evidence is that between 1995 and 1998 two senior co-workers repeatedly sexually harassed her and bullied her. Ms J has set out the full details of the harassment in a document headed “Annexure B”. It is not necessary to list every incident referred to in that document, but it is appropriate to record that the Department has called no evidence to contradict Ms J’s allegations.
The conduct complained of caused Ms J significant distress and made her feel “totally devastated” every time she went to work. She developed a fear and anxiety of being at work, and nightmares and flashbacks about the bullying and sexual harassment to which she had been subjected. She felt unsafe and unsupported at work. She felt anxious and distressed most of the time because she did not know what to expect next from her co-workers.
The Department transferred Ms J to Sydney in about March 1998. Notwithstanding this transfer, Ms J continued to have nightmares, flashbacks and distressing memories of the sexual harassment and bullying that occurred when she worked in the Hunter region. She received counselling from the Employee Assistance Program shortly before her transfer to Sydney, though it did not relieve her symptoms. She stated that she wanted time off work due to stress, but her regional manager said “what about the impact your leave will have on the other people in the office, I find sometimes it is better to come to work instead than take time off”. Ms J did not take time off work, but spoke to an operations officer at the Sydney District about “the work traumas” she endured in the Upper Hunter District. She also spoke with several other officers employed by the Department, none of whom suggested that she should complete an injury claim form. When asked about how to apply for stress leave, she was told “Oh you probably don’t want to do that it affects your health/life insurance”.
Ms J was distraught, confused, distressed, overwhelmed, lacked self-confidence and in desperate need of support, which she felt was lacking from her employer. She also saw someone at the Anti-Discrimination Board and the union for assistance. For the next six to 12 months, she struggled to go to work. She would come home and fall asleep for a few hours, have dinner and then go back to sleep. She locked herself away from most of her friends and avoided social contact. Some nights she would cry. Over the following six months, her grieving changed to anger.
In about 2001, Ms J saw a counsellor at Bondi. In 2002, she saw Dr Robert-Smith, general practitioner at Chatswood. He referred her to Dale Amir, clinical psychologist, for counselling.
On 14 October 2002, Ms J wrote to the manager of the Department’s strategic and executive services and stated that she still had vivid memories of her experiences at work between 1995 and 1998. However, with additional professional counselling and a supportive work environment at Kurnell, she had learnt to cope. However, she found herself under “considerable financial strain” as a result of having financed the counselling herself. She requested the Department to reimburse her for the cost of the counselling.
Ms J wrote to the Department on 12 December 2002 expressing gratitude that the Department had agreed to reimburse half the cost of her previous private counselling and supported further counselling for at least three months.
Some time in 2003 to 2005, Ms J attended at the St George Medical Centre and was prescribed medication for depression. She was also referred to their counsellor, Fili Perdikardis.
Ms J did not feel that the treatment she received significantly helped her condition. Her symptoms continued to worsen. She felt that none of the medical professionals she had seen fully understood her condition. She started to develop sleeping disorders. She was not able to fall asleep because of fear of the nightmares of the trauma she experienced at the Upper Hunter, or she would wake up in the middle of the night after a nightmare. Sometimes, she would have “rages at home” that lasted for several hours and affected her health the next day. Throughout this time, she continued to work, believing that if she did not go to work she was “weak”.
In 2006, Ms J sought further assistance from Dr Robert-Smith, as she felt that she was not getting better. He diagnosed an anxiety disorder with possible PTSD. Ms J then reported the injury to the Department and completed a claim form in August 2006, though she remained at work.
At about that time, Ms J sought assistance from Amanda Hall, clinical psychologist, with Dr Timothy J Sharp and Associates. That counselling did not relieve Ms J’s symptoms.
In April 2007, Allianz pressured Ms J to close her claim because she had not received any active treatment for some months. She was told that she could always fill out a “re-occurrence claim” should the need arise. For that reason, she “closed the claim”. She saw Dr Robert-Smith, who submitted a final WorkCover medical certificate, which certified her fit for work.
Because she found her boss (Christine Hopkins) to be unsupportive and “exhibit bullying tendencies”, she decided to take one year’s leave without pay and to work as a helicopter pilot in the Northern Territory from May 2007. That fresh start did not alleviate her symptoms and her “rages” would sometimes start when she came home from work and go well into the early hours of the next morning. She continued to have intrusive thoughts and nightmares about the events that happened in the Upper Hunter District. Those events included sexual harassment, sexual assaults, discrimination, bullying and having her life put at risk on numerous occasions (being solo on a fire line, being a passenger in a car driven close to a cliff edge, being caught in a fire flare-up, and having a man say to her that he had a gun pointed over her head).
Ms J stopped work in December 2007 because, without treatment, her condition worsened. She sought treatment from Dr Kathryn Carpenter, general practitioner at Katherine in the Northern Territory, who referred her to Ms Pettigrew, clinical psychologist at the Katherine Mental Health Service. In March 2008, Ms Pettigrew recommended an in-patient assessment at a private facility.
Based on Dr Carpenter’s certificate of 13 December 2007, Allianz commenced voluntary payments of compensation from 11 December 2007. Those payments continued until 20 June 2008.
While working in the Northern Territory, Ms J stated that she “experienced normal workplace dynamics in the context of an aviation environment”. Her employer was supportive of her performance and her career with the company. There were, however, occasions when one of the pilots acted inappropriately. His behaviour reminded her of the inappropriate behaviour of her co-workers in the Upper Hunter District and triggered “flashbacks, intrusive thoughts and nightmares of bullying, indecent assaults and sexual harassment”. The Chief Pilot sometimes questioned her work and enquired about the validity of a doctor’s certificate Ms J produced after an injury she had at home. His behaviour, though of a fairly minor nature, triggered recurring nightmares and flashbacks of the bullying she experienced with the Department. The nightmares were particularly bad and led to sleeping difficulties and conflicts with her boyfriend.
Ms J had not had any intrusive thoughts or nightmares about her time working in the Northern Territory, but has continued to have flashbacks, intrusive thoughts and nightmares about her work with the Department between 1995 and 1998, which are triggered by stressors in everyday life.
In a letter to Allianz on 6 May 2008, Ms J made the following points:
(a)she had no history of a psychological condition prior to 1998;
(b)she reported the incidents that happened in the Upper Hunter District immediately after they happened. Instead of staff behaviour improving, it became worse in frequency and intensity until she left in 1998;
(c)when she left the Upper Hunter District, she was in an extremely confused, stressed, exhausted and overwhelmed mental state and did not receive the correct assistance or support from the Department;
(d)though the Department was aware of the incidents, she had no support officer and was not assisted in reporting the events. There was no assessment of her condition;
(e)she was advised against taking leave from work;
(f)from 1998 until the present, she had sought medical help to deal with the traumatic incidents that occurred at work in the Upper Hunter District;
(g)in April 2007, she received a phone call from an officer with Allianz explaining that she should close her claim because she wasn’t receiving any active treatment. Ms J explained that she wasn’t better yet, but had temporarily stopped all active counselling as a strategy she had agreed with her doctor to reduce stress. The officer told her that she could open a re-occurrence of injury claim at any time if she needed treatment;
(h)Ms J then took leave and moved to the Northern Territory and started a new job, which she enjoyed very much. However, the intrusive thoughts, nightmares and rages worsened without treatment and she saw Dr Carpenter in December, unable to continue work. She submitted a “recurrence of injury claim form as instructed by Allianz in April 2007”.
Medical evidence
Ms J saw Josie McSkimming, counsellor, at Bondi Junction for seven sessions between February and April 2001. Ms McSkimming’s notes corroborate Ms J’s complaints of sexual harassment by her co-workers at the Upper Hunter District.
Ms Amir reported to Dr Robert-Smith on 4 June 2002 that Ms J’s aggressive outbursts had been increasing over the previous year. She had engaged in self-destructive behaviour such as head-banging and tearing at her hair. She had been fighting with her de facto partner almost every day. Ms J had received therapy the year before to explore her father’s sexually abusive behaviour. Whilst she felt that therapy had been helpful, it left her with increased anger and distress that she was unable to deal with.
Ms Amir reported again to Dr Robert-Smith on 5 December 2002 that the worker was doing “really well”. She had been able to “self-focus” and that skill was improving over time. However, she was still “excessively emotional” when she felt upset and did not get her way. Ms Amir also discussed Ms J’s work problems over the years and the tensions with her colleagues. She was slowly letting go of her demanding expectations of others.
Ms J received counselling from Fili Perdikaris on several occasions between March and June 2005. The entry on 8 March 2005 referred to Ms J’s work as a ranger being work in a male-dominated industry and being very rough. It was noted that rumours about her personal life affected her work opportunities and opportunities for promotion. The notes also dealt with Ms J’s relationship with her partner and with background issues.
Ms Hall reported to Dr Robert-Smith on 3 August 2006 that Ms J complained of a 10-year history of anxiety and trauma symptoms following alleged bullying, assault and victimisation at work. The worker presented with severe levels of anxiety and stress and mild depressive symptoms.
Ms J first saw Dr Carpenter on 11 December 2007, when she presented with a history of episodes of anger and rage for several years. She also reported poor sleep and nightmares. Dr Carpenter recorded that those symptoms “had been occurring since her previous employment in NSW”. The doctor’s clinical notes for 11 December 2007 recorded, among other things:
“All dates back to sexual abuse in old job (Parks & Wildlife NSW) – has lodged workers comp claim with them. Is currently on leave from that job. Saw counsellors a few times – not v. helpful.
Similar experiences in current job (pilot) – bullying by male colleagues.
Not coping is planning to quit. Tearful.”Dr Carpenter referred the worker to the Katherine Mental Health Service.
Ms Pettigrew provided a “summary of treatment” in a document dated 23 April 2008. She first saw the worker for “management of rage” on 18 December 2007. The source of Ms J’s symptoms was unclear. Ms J denied any depressive symptoms, but there were “some features of PTSD in the form of intrusive thoughts”. The worker referred to “abusive experiences” in the past but was unable to recount the historical details. Ms Pettigrew did not press her for the history because of the risk of re-traumatisation. On 5 March 2008, Ms Pettigrew suggested an inpatient assessment at a private facility.
Dr Smith, consultant psychiatrist, saw Ms J on referral from her general practitioner on 23 September 2008. Her general practitioner, Dr Young, had been concerned about her complicated history and, in particular, his diagnosis of PTSD associated with rages, depression and anxiety. He had also referred her to Dr Roger Peters, consultant psychologist.
Ms J gave Dr Smith a history of several years of “affective disregulation associated with ‘rage attacks’ that often lasted hours”. She also experienced anxiety, depressed moods, obsessive attention to cleaning, sleep disturbances and occasional nightmares. She reported that her symptoms developed following a traumatic period at work between 1995 and 1998 in what she described as a “blokey” work culture. She reported having been “sexually harassed”. The Department transferred Ms J to Sydney and she then worked in the Northern Territory. She had not worked since December 2007.
Ms J confirmed the episodes of sexual harassment set out in a statement (attached to her statement in evidence) she prepared headed “Sexual Harassment in the Upper Hunter District”. She also related an incident at work in the 1990s when she had been left on a fire trail by herself in a remote area near Mudgee, having been excluded from two groups of fire fighters who separated from her. She felt extreme distress about having been left alone in a remote location in such a hazardous environment. She also referred to an incident at work during the same period when a co-worker drove a vehicle at high speed towards the edge of a cliff with a view to frightening her.
These events affected Ms J to a significant extent and she took extended leave in May 2007 and worked as a helicopter pilot in the Northern Territory. However, she continued to experience psychological “symptomatologies” that could be attributed to her employment as a park ranger. A particularly distressing event occurred in December 2007 while she was undertaking a pre-flight check as a helicopter pilot. She developed a frame of mind where she was indifferent to whether the helicopter was mechanically intact or not. She realised that she was not thinking appropriately and she consulted Dr Carpenter. She submitted a claim for compensation, which was initially accepted until the insurer obtained a report from Dr Salisbury.
Ms J presented to Dr Smith with heightened levels of anxiety with depression and impaired sleep patterns. She was tearful and sad. She was at a loss to know how to proceed in regard to her work. She experienced nightmares and had troubled dreams with troubling sexual themes. She was taking Lexapro and Epilim and regularly consulting Dr Peters.
Dr Smith took a history of sexually inappropriate conduct by Ms J’s father, though he had not explicitly abused her.
Dr Smith diagnosed Ms J to have a Chronic Adjustment Disorder with Depressed and Anxious Mood in association with complex PTSD features. He arranged for Ms J to be admitted into St John of God Hospital on 7 October 2008 where she remained until 21 October 2008. During her period in hospital, Ms J was noted to be a highly goal-focused and perfectionist personality.
Dr Smith concluded that, whilst Ms J may have had a previous disposition towards emotional decompensation in the presence of abusive incidents, her employment had been a substantial contributing factor to her psychological injury. He added that the incidents to which she had been exposed at work had been “significantly traumatic to bring her within the severe stressor category of a post-traumatic stress disorder”. She was unfit for work as a park ranger and required further psychological treatment before she would be able to reintegrate into appropriate work.
Dr Salisbury examined Ms J at the request of Allianz on 18 March 2008 and reported on 25 March 2008. She took a history of Ms J having been sexually assaulted in the course of her employment at the Upper Hunter District between 1995 and 1998. She also noted that her boyfriend at that time had assaulted her by grabbing her around the throat and trying to strangle her. She recorded that Ms J’s father had acted inappropriately in front of her when she was a teenager. Ms J learnt to fly in 2000 to distance herself and build her confidence.
Ms J completed a Psychiatric Diagnostic Screening Questionnaire. Her scores indicated that she experienced mild symptoms of depression, severe symptoms of PTSD, severe symptoms of panic, mild symptoms of paranoia, mild symptoms of social phobia and mild symptoms of generalised anxiety disorder. Dr Salisbury concluded that Ms J’s clinical presentation was consistent with the results in the questionnaire.
Dr Salisbury spoke with Christine Hopkins, the worker’s direct manager from 2002 until early 2007. Ms Hopkins found the worker to relate well with most people in the workplace. She recalled the worker mentioning that she had had difficulties with her previous managers regarding inappropriate behaviour/harassment. Ms Hopkins understood that the worker moved to the Northern Territory to make a fresh start and gain experience as a pilot. When Ms Hopkins last spoke with her, the worker seemed happy, healthy, and optimistic about her move to the Northern Territory.
Dr Salisbury also spoke with Helen Anderson, the Department’s director of human resources. Her only contact with the worker was in late 2002 and early 2003 in relation to reimbursement of counselling fees. Ms Anderson’s only knowledge of the events between 1995 and 1998 was via the worker’s letter of 12 December 2002 in which she sought reimbursement of her counselling expenses. The Department agreed to pay for half of the cost of counselling in 2001 and 2002, and for counselling for three months up to the end of February 2003.
Dr Salisbury spoke with both Dr Carpenter and Dr Pettigrew by telephone and obtained background information consistent with their reports set out earlier in this decision. Dr Salisbury also spoke to Dr Robert-Smith who confirmed that Ms J had phobic anxiety symptoms that she (Ms J) believed were related to her previous work situation. Dr Robert-Smith reported that Ms J was happier on 23 October 2006 and that she was making progress in the workplace. He considered her fit for duties and he saw her again in April 2007 when the workers compensation matter was finalised. He indicated a diagnosis of possible anxiety/depression.
Dr Salisbury reached the following conclusions:
(a)the worker had experienced a degree of trauma in her childhood in relation to inappropriate sexual actions by her father;
(b)the worker experienced a pattern of unstable interpersonal relationships with episodes of inappropriate intense anger and marked impulsivity at times;
(c)the impact of the alleged inappropriate sexual harassment during 1994 to 1997 (sic 1995 to 1998) in the Hunter area would have impacted on Ms J in a negative manner. However, Ms J was transferred to Sydney;
(d)Ms J reported that, concurrent with the alleged sexual harassment at work, she was in a domestically violent relationship where her life had been threatened when her partner attempted to strangle her and would throw her against the wall;
(e)it would not be possible to separate the effect of the domestic violence that seems to have been more extreme than the alleged sexual harassment. The domestic violence would have impacted on Ms J in a negative and psychologically damaging manner;
(f)Ms Hopkins reported that Ms J worked satisfactorily from 2002 until she left the Department in May 2007;
(g)the work related issues between 1994 (sic 1995) and 1998 may have contributed to Ms J’s psychological state during the period they were occurring. However, as she had been moved out of that environment and counselling provided, and as she made no further requests for counselling in relation to those matters from 2002, the impact of those “alleged events would have resolved”;
(h)Dr Robert-Smith stated that Ms J was fit for her pre-injury duties in July 2006;
(i)Ms J told Dr Robert-Smith that she was having relationship troubles. She reported that she did not want to pursue counselling and that she had no time off work;
(j)Ms J’s relationship became violent and ended in December 2006;
(k)Ms J commenced new employment in May 2007 with a private aviation company in the Northern territory. Ms J declined permission for Dr Salisbury to contact that employer and said that they would not have been aware of any issues in relation to her. She told them in 2007 that she had become unwell and she resigned;
(l)Ms J reported that “the same pattern” was happening with her new partner. She reported that her rages had been getting worse over the previous year and that she had hit her partner and herself during those episodes;
(m)the significant contributing factors to Ms J seeking workers’ compensation in July 2006 were not work related. Ms J did not report any significant work concerns during the past few years. She reported episodes of intense anger when she physically attacked her partners and they had become violent in response to her;
(n)Ms J experienced extreme emotions as she attempted to establish interpersonal relationships. Ms J referred to feeling numb and then feeling intense violent rage. She had a pattern of unstable and intense relationships with marked reactivity of mood where she was violent and then felt shame and guilt. The inappropriate sexual behaviour to which Ms J was exposed in her childhood contributed to her difficulty in establishing her adult relationships, and
(o)Ms J’s symptoms were consistent with PTSD - chronic and “Borderline Personality Disorder - provisional”. She was not fit for duties and required psychiatric evaluation/treatment and review by her general practitioner. Ms J would also benefit from supportive counselling and inpatient treatment where Dialectic Behaviour Therapy was provided.
Dr Smith reviewed Dr Salisbury’s report and discussed its contents with Ms J. He highlighted the “key factors” that Dr Salisbury omitted:
(a)Ms J underwent counselling at her own expense after 2002 in relation to the traumatic events that occurred at work in the Upper Hunter District from 1995 to 1998. Ms J requested further assistance from her employer after 2006 when a work-related psychological condition was diagnosed;
(b)Ms J had been pressured not to lodge a formal grievance in relation to the events that occurred between 1995 and 1998;
(c)Ms J informed Dr Robert-Smith that the PTSD was affecting her relationship;
(d)Ms J took many sick days without a doctor’s certificate and had been counselled by her supervisor, Ms Hopkins;
(e)though she was initially hesitant about providing permission for Dr Salisbury to contact her Northern Territory employer, she subsequently emailed permission with the company’s contact details;
(f)in the years prior to 2007, Ms J and two other workers made a confidential report over the bullying behaviour of Ms Hopkins. Ms J reported to the regional manager that Ms Hopkins hit a field officer over the head;
(g)the counselling Ms Hopkins approved for Ms J was “specifically targeted towards” her PTSD, depression and anxiety symptoms. It did not focus on the break-up of her relationship;
(h)though the sexual harassment that she experienced in the Upper Hunter District had ceased, Ms J experienced flashbacks, nightmares, and intrusive thoughts relating specifically to her traumatic experiences at work between 1995 and 1998. Those feelings intensified when she left the Upper Hunter District and moved to Sydney. Counselling was not helpful in accurately diagnosing and resolving her condition;
(i)Ms J had been persuaded against lodging a formal grievance. However, she did follow her employer’s bullying and harassment and grievance policies and procedures up to the point of lodging a formal grievance. Ms J told Dr Smith that following those procedures had exacerbated the harassment, discrimination and bullying behaviour at work;
(j)Ms J had never experienced any flashback episodes, intrusive thoughts or nightmares about the physical or domestic situation with her boyfriend at home. She sometimes experienced nightmares or near death experiences in cars;
(k)Ms J’s flashbacks, nightmares and intrusive thoughts related specifically to the traumatic experiences she had at work, particularly the sexual harassment, assault and bullying;
(l)Ms J viewed the work incidents between 1995 and 1998 as “far more significant” in regard to their emotional impact on her than the events that occurred in her domestic situation. Her domestic situation had always been “easy to discuss” whilst the traumas of the work situation had been “emotionally overwhelming and difficult to talk about”;
(m)Ms J continued to experience significant emotional “symptomatologies” in response to the events that occurred at work between 1995 and 1998. She had no symptoms prior to her work traumas. She was exposed to threats to her life by her boyfriend (who also worked for the Department) while driving at work and underwent “near death experiences” because of exposure to extreme fire-fighting conditions. The events at work between 1995 and 1998 were “more intense and happened constantly and in response to different people”, whereas her domestic situation happened on only one occasion and by one person, and
(n)Dr Salisbury failed to “reflect that the flashbacks, nightmares and intrusive thoughts relate[d] to [Ms J’s] adverse work experience and not [to] other circumstances”. Ms J found it most difficult to talk about her work experiences at the Upper Hunter District. When she experienced reminders of the events (at the Upper Hunter District), she underwent explosive rages.
Dr Smith concluded that Ms J had developed diagnostic criteria for a chronic PTSD, a formal psychiatric disorder defined in the Diagnostic and Statistical Manual of Mental Disorders (fourth edition) of the American Psychiatric Association (DSM IV). In addition, her mood had been depressed and she experienced a loss of self-confidence with feelings of inadequacy, pessimism, despair and hopelessness. She had been brooding about her work situation. Overall, she had been decreasingly active, effective and productive. She also experienced “excessive anxiety and an apprehensive expectation of further harm potentially befalling her”.
Dealing with causation, Dr Smith disagreed with Dr Salisbury’s conclusion. He stated:
“Whilst she [Ms J] was exposed to other distressing events prior to the incident in question, she did not experience emotional decompensation to the extent that she has and which has required her admission to a psychiatric facility.
I do not agree with Dr Salisbury that the effect of the domestic violence was more extreme than the alleged sexual harassment. Certainly domestic violence would be perceived in a negative and psychologically damaging manner. I fail to understand why Dr Salisbury cannot also accept that her [Ms J’s] exposure to the traumatic events at work were also negative and psychologically damaging. I have also noted that she [Dr Salisbury] adopts the word alleged in regard to the traumatic incidents at work.”
With respect to Dr Salisbury’s provisional diagnosis of a Borderline Personality Disorder, Dr Smith stated that Ms J revealed traits noted in individuals with a borderline personality, but did not demonstrate full diagnostic criteria for that diagnosis. Dr Smith noted that the psychological testing undertaken by Dr Salisbury revealed that Ms J was experiencing mild symptoms of depression, severe symptoms of PTSD, severe symptoms of panic, mild symptoms of paranoia, mild symptoms of social phobia and mild symptoms of Generalised Anxiety Disorder. Significantly, Dr Smith noted that Ms J’s clinical presentation was consistent with that psychological testing.
Dr Smith felt it significant that Ms J was not diagnosed with PTSD until 2006.
Dr Smith added that, in response to Ms J’s work-related events, an alternative diagnosis of a chronic Adjustment Disorder with Depressed and Anxious Mood was also appropriate. Ms J experienced rage reactions predominantly in response to frustrations and an inability to control her underlying emotionality. She was disabled and not able to reintegrate at work.
Dr Smith concluded that it was more probable than not that Ms J’s employment was “the substantial contributing factor to her psychological injury”. In this regard, he noted that Ms J may have had “a pre-disposition towards emotional decompensation in the presence of abusive incidents”, but in the absence of her adverse work experiences, it was his opinion that she would not have decompensated to the extent that she did. The incidents to which she was exposed at work were significantly traumatic and brought her within the “severe stressor category” of a PTSD. In his opinion, Dr Salisbury’s view did not accurately reflect the true extent of Ms J’s adverse work experiences. Ms J was not fit to work as a park ranger.
Dr Peters reported to Ms J’s solicitors on 22 December 2008. He first saw her on referral from her general practitioner on 1 August 2008. He stated that Ms J seemed to have gone from childhood to adulthood as a “more generally well balanced and integrated person”. However, at the time he saw her in August 2008, he considered that she needed inpatient care and treatment. Dr Peters’ testing confirmed the presence of PTSD and anxiety. Dr Peters noted that PTSD is “a condition of anxiety”. There was also some dysthymia (depressed mood). He noted that there were masochistic and narcissistic features of Ms J’s personality; however, they were not “disorders”. He agreed with the diagnosis of PTSD. He believed that the treatment to date had not been sufficient, as evidenced by the number of relapses Ms J had experienced.
He felt that she remained psychologically fragile and totally unfit for any work. Though there had been some progress, she was still distressed by ruminations, intrusive thoughts and anxiety rage attacks. She continued to have problems wither sleep, concentration and memory.
Dealing with causation, Dr Peters did not think that Ms J had any personality disorder, but there were features of three personality styles. Whilst he accepted that abusive adult relationships could cause PTSD, he observed that those relationships were not the source of her ruminations and obsessional thinking. Instead, her focus was on her perceived mistreatment in the workplace. He felt that, at the very least, her workplace experiences were a substantial contributing factor. The fact that Ms J felt threatened and that nothing was done to help her made her situation even more difficult and, in the end, she “ran away” to work in the Northern Territory. Whilst her individual experiences with the Department may not be regarded as a cause, it was more an accumulation, whereby “harassment and intimidation can cause an increased sense of vulnerability, sometimes referred to as ‘sustained degenerative abuse’”.
Dr Peters stated that PTSD is a psychobiological condition that involves changes to brain architecture. Therefore, whilst being away from stress made sense, Ms J remained prone to relapses no matter where she was.
Dr Kipling Walker, consultant psychiatrist with HealthQuest, examined and reported on Ms J on 20 March 2009. He took a brief history of the events that led to the current claim. He recorded that Ms J felt hopeless and helpless. She had lost interest in socialising, yoga and walks. She had poor concentration and could not finish things. She had low self-esteem and problems with sleep and mental agitation. She was generally anxious and experienced panic attacks every few days. She worried about men criticising her and had recurring memories and dreams of all of the harassment. Those dreams gave her a sense that the harassment was recurring and made her upset and agitated. She cried and became highly anxious when discussing the alleged harassment. Dr Walker diagnosed Ms J with a major depressive disorder and an anxiety disorder not otherwise specified. He concluded that she was permanently unfit for the full range of duties in her pre-injury position and that she remained impaired by her symptoms of depression and anxiety. He added “given that the alleged harassment occurred from 1995 to 1998, she could experience some psychological symptoms indefinitely”.
Dr Walker felt that Ms J’s symptoms continued to make her extremely vulnerable to perceived mistreatment and to stressors.
Dr Peters reported again on 22 June 2009, when he explained that PTSD is, to a large extent, a psycho-neurobiological condition. It was considered that the hypervigilance and anxiety caused by an immediate trauma cause the neurobiological switch to be “left on”. This causes continued hyper levels of anxiety and vigilance, ruminations, including intrusivity of thought and avoidance of similar events, or situations that cause conflict that increase anxiety. When PTSD develops over a longer period and there are multiple events, it is more difficult to treat and recovery more “elusive”. Sustained and degenerative abuse causes symptoms similar to PTSD. In that situation, it is the accumulation that is important, especially if the level of psychopathology the client suffers is to be understood. That was important in Ms J’s case. He added:
“PTSD is a condition, as I remarked earlier, that specifically involves neurobiological alterations and changes to brain architecture, in particular the ‘limbic system’, a region of the brain, to a large part, that is responsible for our emotional expression. The existence of rage in [Ms J’s] case places pressure on her relationship with others and is often the focal core of her distress.”
Dr Peters also observed that PTSD is a condition that, even after a period of recovery or remission, is prone to relapse and the cycle is then repeated.
Dealing with Ms J’s experiences in the Northern Territory, Dr Peters stated that they were “undoubtedly triggers” which in turn caused her to become distressed and to relapse. He stated that those experiences were, by most people’s standards, trivial, but they had to be considered with an understanding of how PTSD works. Once it was established, what seem to be minor triggers may cause an episode or relapse. Having considered the notes from Dr Robert-Smith, Ms Amir, Ms Hall, Ms Perdikaris, Ms McSkimming and Ms Pettigrew, Mr Peters confirmed that the aetiology of Ms J’s psychological problems pre-existed her working in the Northern Territory. Given the absence of any other cause, the incidents in the Hunter Valley District were the cause of her PTSD.
Dr Smith reported again on 22 June 2009, when he responded to specific questions raised by Ms J’s solicitors in their letter of 17 June 2009. Dr Smith reviewed all of the additional clinical notes forwarded to him and answered the same specific questions dealt with by Dr Peters. He considered it “quite probable” that the incidents in the Northern Territory “rekindled or retriggered a relapse of pre-existent post traumatic stress disorder ‘symptomatologies’ that had been prevalent since the incidents in the Hunter Valley during the 1990’s”. He regarded the incidents of “bullying” in the Northern Territory as significant or major stressors and a person suffering from pre-existent PTSD of the type Ms J had experienced would have experienced an exacerbation of pre-existent psychopathology. He stated that it was “certainly correct” that, once a PTSD was established, “minor triggering events may cause significant relapses of the initial Post Traumatic Stress Disorder”. On a balance of medical probability, that occurred in the Northern Territory in December 2007. The additional material did not cause Dr Smith to modify the opinions he previously expressed, but confirmed those opinions. He remained of the view that the incidents at work in the Hunter Valley District were a substantial contributing factor to the cause of Ms J’s psychological injury.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to find that Ms J suffered a primary psychological injury as a result of a number of individual traumatic events between January 1995 and 30 March 1998;
(b)making conflicting findings of injury;
(c)concluding that Ms J had suffered a disease of gradual process, namely PTSD;
(d)failing to give reasons or any adequate reasons for his decision that Ms J had suffered a disease of gradual process, namely PTSD;
(e)finding that Ms J had suffered a disease of gradual process when such finding was against the evidence and the weight of the evidence, and
(f)awarding Ms J weekly compensation from 21 June 2008 until 21 December 2008 at her current weekly wage rate ($1,402.23 per week) under section 36 of the 1987 Act.
The Department seeks a review of the Arbitrator’s decision in accordance with the principles discussed in Sapina v Coles Myer Limited [2009] NSWCA 71; (2009) 7 DDCR 54.
SUBMISSIONS, DISCUSSION AND FINDINGS
Counsel for the Department submitted at the arbitration that the Application relied upon various stressful events and that each of those events gave rise to a psychological injury (T15.19). Therefore, it was truly a “micro-traumata” case (T15.26). As a result, the factual scenario was very different to that found in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (‘Semlitch’).
He also submitted that, as Ms J continued to work for the Department until she took leave in May 2007, it was not an “ongoing process” leading up to the time when the worker became incapacitated in an economic sense (T16.1). He submitted that Ms J received a series of psychological injuries and, therefore, the disease provisions had no application.
Counsel also submitted that immediately before Ms J moved to the Northern Territory, Dr Robert-Smith certified her fit for her pre-injury duties (T16.55). He submitted that the evidence did not establish that Ms J’s symptoms had been “prevalent since the incidences [sic] during the 1990s” (T21.45). He submitted that Ms J performed work in the Northern Territory that was more taxing than her pre-injury duties and that certain events occurred in the course of that employment that aggravated her condition and put her off work (T23.9). Counsel conceded that Ms J sustained an injury in the nature of PTSD as a result of the events in the three years up to March 1998 (T23.34), but that as at August 2006 she was fit to perform her pre-injury duties and was not incapacitated after that date (T23.40).
The Department has submitted on appeal that the Arbitrator found a direct causal relationship between Ms J’s symptoms and the “events of her employment between 1995 and 1998” (Reasons at [33]). Therefore, he made a finding of “personal injury” arising out of or in the course of Ms J’s employment for the purposes of section 4(a) of the 1987 Act and, having made that finding, it was not open to him to then find injury in the nature of a “disease” or “aggravation etc of any disease”.
The Department argued that the injurious events that occurred between 1995 and 1998 were allegedly “of a very serious nature” and each was “capable of giving rise to symptoms indicative [sic], in a case involving psychological injury, or an alteration in pathology”. The injurious events and alteration in pathology did not extend past 30 March 1998 and it is clear that there were “similar injurious events which occurred whilst Ms J worked for a different employer in the Northern Territory”. The Department submitted that Ms J’s PTSD has not resulted from her duties with the Department.
The Department further argued that the Arbitrator failed to provide adequate reasons for his finding that Ms J suffered a disease of gradual process because he failed to expose his reasoning process. Further, he failed to make a finding that Ms J was employed by the Department in employment to the nature of which disease was due as at 11 December 2007, the date the Arbitrator found to be the deemed date of injury.
Last, the Department submitted that the Arbitrator erred in making an award in the period from 21 June 2008 to 21 December 2008 in the sum of $1,402.23 per week. The Department had previously paid the worker’s full entitlement to weekly compensation under section 36 of the 1987 Act and any award from June to December 2008 should have been at the appropriate rate under either section 37 or 40 of the 1987 Act.
Save for the last point as to the appropriate rate of compensation between 21 June 2008 and 21 December 2008, conceded by Ms J, and save that I agree the Arbitrator failed to give adequate reasons as to why Ms J’s injury was a disease injury, I do not accept the Department’s submissions.
Before discussing the issues in detail, I note that the Department’s solicitors referred Ms J to Dr Snowden, consultant psychiatrist, on 2 July 2009. As the Department has not tendered a report from that doctor, and offered no explanation for not doing so, I infer that the report would not have advanced the Department’s case (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). I also note that the Department called no evidence challenging Ms J’s evidence of the distressing events that occurred in the course of her employment between 1995 and March 1998. In these circumstances, I accept Ms J’s evidence, both as to the occurrence of those events and the effect they had on her.
Dealing with injury, section 4 of the 1987 Act provides:
“4 Definition of ‘injury’
In this Act:
‘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 (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The Department’s submission that Ms J suffered a “personal injury” and not a disease injury is inconsistent with the evidence and the authorities on the disease provisions. In Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 632 (‘Semlitch’) Kitto J held:
“In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness.”
This passage is consistent with the statement by Dixon CJ in Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; (1959) 102 CLR 482 at 496 (‘Hussey’) that the definition of “a disease” covers “what would ordinarily be regarded as a pathological condition continuing to operate according to its pathological nature”. It is also consistent with the Court of Appeal decision in Fletcher International Exports Pty Ltd v Barrow & anor [2007] NSWCA 244; (2007) 5 DDCR 247 (‘Barrow’), where Mason P (Santow and Tobias JA agreeing) held (at [61]) that “The failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function is capable of being found to be a disease process”.
Ms J suffers from PTSD with depressive and anxiety symptoms. As Dr Peters explained, the condition is a psycho-neurobiological problem. It causes neurobiological alterations and changes to the brain architecture. Her condition has resulted from a failure to cope with the cumulative effect of repeated stress, which has led to a loss of function. I am comfortably satisfied, based on the evidence of Dr Peters, and the authorities of Hussey, Semlitch and Barrow, that Ms J’s psychological condition is properly characterised as a disease.
The phrase “of such a nature as to be contracted by a gradual process” denotes the contracting of the disease “as beginning when the first seeds of it are sown in the human body and as continuing at each new stage which it reaches” (per Jordan CJ in Kellaway v Broken Hill South Ltd (1944) 44 SR (NSW) 210). In the words of Rainbow J in Everingham v Austral Stevedoring & Lighterage Co Ltd [1945] WCR 121, the disease is “acquired a little or a little more from day to day”.
I am satisfied that Ms J’s condition resulted from “sustained and degenerative abuse” at work between 1995 and March 1998. This phrase is particularly appropriate and relevant in the present case where individual events may not have been sufficient to be regarded as the cause, but the accumulation over time was (see Dr Peters’ evidence at [74] and [78] above). Based on Dr Peters’ evidence, I find that Ms J’s injury resulted from an “accumulation” of stress over time and that it is properly classified a disease of such a nature as to be contracted by a gradual process.
The Department submitted that Dr Peters’ evidence was only that perceived mistreatment could cause an increased sense of vulnerability and that, while vulnerability may be a precursor to a subsequent injury, it was not itself a diagnosable psychological injury. This submission has overlooked Dr Smith’s evidence that, though Ms J may have had a predisposition towards emotional decompensation (before she started with the Department), her employment with the Department between 1995 and 1998 was a substantial contributing factor to her psychological injury. After reviewing all of the clinical notes in evidence, he remained of that view. The lay and expert evidence is overwhelmingly to the effect that Ms J’s employment caused her injury. I have dealt with the relevance of the Northern Territory work at [105] and [106] below.
For the following reasons, I do not accept Dr Salisbury’s evidence:
(a) she failed to note that Ms J underwent further counselling at her own expense after 2002 in relation to the traumatic events that occurred at work between 1995 and 1998;
(b) Ms J’s counselling was targeted towards her PTSD rather than focused on the break-up of her relationship;
(c) her assertion that the domestic violence was more extreme than the alleged sexual harassment overlooked the fact that the traumas at work continued over a prolonged period and involved much more than sexual harassment. It also overlooked the content of Ms J’s flashbacks and nightmares, which related to her traumatic experiences at work and not to other circumstances;
(d) it was incorrect to suggest that Ms J did not seek further counselling from 2002. She did and the assumption that the impact of the work events had resolved because Ms J did not seek counselling from 2002 was unfounded;
(e) she failed to give proper weight to the fact that Ms J experienced no symptoms prior to her work trauma and that her symptoms arose from those traumas, some of which were life threatening. Those events were more intense and happened constantly and in response to different people, as opposed to her domestic situation which happened on one occasion with one person, and
(f) her opinion on causation was firmly rejected by the treating psychiatrist and was inconsistent with the opinion of the treating psychologist, whose evidence I find more cogent and persuasive.
I do not accept the Department’s submission that the Arbitrator made a finding (at [33] of his Reasons) that Ms J suffered a “personal injury”. He did not. After referring to Dr Salisbury’s evidence, which suggested (wrongly) that the effect of the injury had ceased because Ms J had not requested treatment after 2002, the Arbitrator found:
“33. In my view this [the worker’s course of treatment] amply demonstrated the causal connection between the Applicant’s present psychological symptoms and the events of her employment between 1995 and 1998.”
If Ms J was to succeed, she had to establish not only that she had “received an injury” (section 9 of the 1987 Act) but also that her incapacity, impairment and need for treatment resulted from that injury. Her injury was a disease contracted in the course of her employment with the Department between 1995 and 1998 and to which her employment was a contributing factor (section 4(b)(i) of the 1987 Act). In essence, the Arbitrator found (at [33]) a causal connection between Ms J’s psychological symptoms and the circumstances of her employment between 1995 and 1998. Those symptoms were and are a manifestation of the disease injury she received. The Arbitrator’s reference to “events” was clearly not a reference to “personal injuries” within the meaning of the legislation but was a reference to the employment circumstances that contributed to the disease injury.
The argument that each of the incidents that occurred at work between 1995 and 1998 was “capable of giving rise to symptoms” and an “alteration in pathology” failed to acknowledge that Ms J’s injury resulted from the cumulative effect of her employment circumstances over time and not from the effect of an individual event. There is no evidence that any one of the events at work between 1995 and March 1998 caused Ms J to suffer a sudden identifiable physiological (pathological) change, which is the identifying hallmark of a “personal injury” (Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310 at 347; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 at [35] and [36]; (2000) 74 ALJR 1298; and Austin v Director General of Education (1994) 10 NSWCCR 373). Her injury was, in the circumstances of this case, a classic disease injury of such a nature as to be contracted by a gradual process. It follows that I do not accept the Department’s submission that Dr Peters’ reference to a change in brain architecture was evidence that Ms J “suffered a personal injury simpliciter”.
The Department’s argument that the injurious events and the alteration in pathology did not extend past 30 March 1998 is difficult to follow. It is correct that the circumstances that caused the injury did not extend beyond 30 March 1998; however, regardless of whether the injury was a disease or a personal injury, it is clear beyond doubt that its effects extended beyond 30 March 1998. Once it was found that the injury was a disease contracted by the worker in the course of her employment and to which her employment was a contributing factor, section 15 of the 1987 Act applied to determine the deemed date of injury (see [111] and [112] below). The Department’s submission was untenable and was unsupported by any reasoned submissions or persuasive evidence.
I do not accept that “similar injurious events” occurred when Ms J worked in the Northern Territory. The events in the Northern Territory were nothing like the sustained harassment and mistreatment that Ms J had been subjected to for over three years with the Department. They were not life threatening. They were not abusive. They were not assaults. I accept Dr Peters’ evidence that “by most people’s standards” the incidents in the Northern Territory were trivial. However, given Ms J’s illness, they acted as a trigger that caused a relapse of her pre-existing condition that had not resolved.
Given the evidence from Ms J, Dr Peters and Dr Smith, I am comfortably satisfied that, adopting a common sense evaluation of the causal chain (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452), Ms J’s incapacity, impairment and need for treatment resulted from her disease injury. Even if other factors (such as the work in the Northern Territory) contributed to her incapacity, and I do not accept that to be so, that fact would not detract from the finding I have made. It is settled law that “incapacity may result from a work injury even though the…incapacity also results from a later, non-employment cause” (Calman v Commissioner of Police [1999] HCA 60 at [38]; (1999) 73 ALJR 1609; Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 at 585; Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1979] 2 NSWLR 435).
If my conclusion as to causation is wrong, the Department is liable in any event because, like section 17 of the 1987 Act, section 15 does not have extra-territorial operation. As a result, compensation is payable by “the employer who last employed the worker [in New South Wales] in employment to the nature of which the disease was due” (section 15(1)(b) of the 1987 Act and A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41). That employer was the Department.
Though I accept that the Arbitrator failed to give adequate reasons for his finding on injury, his error is of no consequence in the circumstances of the present case. For the reasons given in this decision, I have, after reviewing the evidence and the parties’ submissions at arbitration and on appeal, reached the same conclusion.
Ms J has conceded that the Arbitrator erred in ordering the Department to pay weekly compensation at the current weekly wage rate, namely $1,402.23 per week, from 21 June 2008 until 21 December 2008. As the insurer had already paid Ms J her current weekly wage rate for the first 26 weeks of her incapacity, her entitlement from 21 June 2008 was at the statutory rate for a single worker with no dependants on the basis of total incapacity under section 37 of the 1987 Act. The award will be amended to correct that error.
Once it was determined that Ms J received a section 4(b)(i) injury, and that that injury was a disease of such a nature as to be contracted by a gradual process, section 15 applied to determine when the injury was deemed to have happened.
Section 15 provides:
“15 Diseases of gradual process – employer liable, date of injury etc
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) …”
As Ms J suffered no incapacity for which weekly compensation was claimed until she ceased work in December 2007, the Arbitrator correctly found the deemed date of injury to be 11 December 2007. That finding was consistent with the evidence that Ms J did not claim weekly compensation until December 2007 (see P & O Berkley Challenge Pty Ltd in the interests of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonso & ors [2000] NSWCA 214; (2000) 49 NSWLR 481 at 487 (‘Alfonso’). The Department’s submission that the deemed date of injury should be February 1998 because that was when Ms J was unable to continue to work in her substantive position is contrary to the principles discussed in Alfonso.
The authorities are clear that it is possible to have different deemed dates of injury for lump sum compensation and for weekly compensation (Alto Fords Pty Ltd v Antaw [1999] NSWCA 234, (1999) 18 NSWCCR 246). Though it may have been open to argue that the correct deemed date of injury for the claim for lump sum compensation was 3 September 2009 (the date on which Ms J’s solicitors made that claim), neither party has suggested that there should be two deemed dates of injury in the present matter. Ms J’s entitlement to compensation is, subject to the transitional provisions discussed below, to be calculated on the basis of the deemed date of injury of 11 December 2007.
TRANSITIONAL PROVISIONS
The first point to note is that the Department never relied on the transitional provisions in its section 74 notice or Reply. However, Ms J has not objected to the Department relying on the provisions at this late stage. If it is necessary to do so, I grant leave to the Department under section 289A(4) of the 1998 Act to rely on the transitional provisions as providing a ground on which to dispute Ms J’s entitlement to lump sum compensation. I do so because there is no prejudice to Ms J and because the transitional provisions raise legal issues that can be met without any additional evidence (Coulton v Holcombe (1986) 162 CLR 1 at 8). Further, the Commission must determine cases according to the terms of the applicable legislation (Electricity Commission of New South Wales v Yates (1993) 30 NSWLR 351). It is therefore in the interests of justice that the Department be permitted to rely on the transitional provisions.
The transitional provisions provide that there is to be a reduction in the compensation payable under Division 4 of Part 3 of the 1998 Act for “any proportion of the permanent impairment concerned that is a previously non-compensable impairment” (subclause (2) of clause 3 of Part 18C of Schedule 6 to the 1987 Act).
A “previously non-compensable impairment is loss or impairment that is due to something that occurred before the commencement of the amendments to Division 4 of Part 3 made by the lump sum compensation amendments, being loss or impairment that is of a kind for which no compensation was payable under that Division before that commencement” (subclause (3) of clause 3 of Part 18C of Schedule 6 to the 1987 Act).
The Court of Appeal considered the transitional provisions in Pearce (cited at [18] above). In that matter, a police officer’s duties exposed him to a number of traumatic events between 1982 and February 2005. The Commissioner of Police found that the officer was incapable of exercising the functions of a police officer because of “chronic/severe post-traumatic stress disorder” and “chronic/moderate major depression” and that those conditions had been caused by him being hurt on duty. The Commissioner found the “notional” date of injury to be 10 November 2005. As a result, the transitional provisions applied.
Basten AJ (Beazley JA agreeing) observed (at [108]) that the transitional provisions, which deal with impairments due to earlier events and not with injuries, have a different operation to section 323 of the 1998 Act. His Honour added (at [109]):
“…s 323 has a different operation from that of cl 3. The reduction required under sub-cl 3(2) does not depend upon the date of an injury or the impairment in question; rather, it operates by reference to an event or thing that occurred before the commencement of the amendments. Thus, if it could be shown that a ‘proportion’ of the permanent impairment was due to such an event or thing, a reduction in the payment of compensation would be required.”
His Honour then noted (at [111]) that, once the Commissioner determined that the injury happened in 2005, then, because PTSD constituted a disease within the terms of section 15 or 16 of the 1987 Act, it was an injury received after the commencement of the amendments on 1 January 2002 and the transitional provisions were then engaged. His Honour stated (at [112]), “[t]he reduction required by the transitional provision turns on a causal connection between the impairment and events which occurred before the commencement of the amendments” and that “[t]hey require the assessment of a ‘proportion’ of the impairment which is ‘due to’ the events occurring before 2002”.
At the teleconference on 24 May 2010, counsel for the Department, Mr Batten, submitted that, consistent with Pearce, the transitional provisions apply in the present matter. Ms J’s solicitor, Mr Mantach, did not dispute that the transitional provisions are relevant, but argued that there are two requirements for subclause (3) to apply. First, that there be a previously non-compensable impairment and, second, that the impairment be of a kind for which no compensation was payable before 1 January 2002.
I do not accept that there are two separate requirements necessary before subclause (3) applies. The expression “non-compensable impairment” is defined to include a loss or impairment of a kind for which no compensation was payable under Division 4 of the 1998 Act before 1 January 2002. A whole person impairment as a result of a psychological injury is an impairment of a kind for which no compensation was payable under Division 4 of Part 3 before 1 January 2002.
It is clear beyond doubt (and Mr Mantach properly conceded as much) that the whole of Ms J’s alleged impairment is “due to” events that happened before 1 January 2002, that is, the events that happened between 1995 and March 1998. It is also clear that her impairment (an impairment due to a psychological condition) “is of a kind for which no compensation was payable” before 1 January 2002. It follows that the “reduction in compensation payable under Division 4 of Part 3” for that previously non-compensable impairment is, on the facts of the present case, 100 per cent.
Mr Mantach argued that, because PTSD alters the brain architecture, it falls within the scope of brain damage, which was compensable under the Table of Disabilities applicable before 1 January 2002. Therefore, the impairment was not a previously non-compensable impairment. Whilst I accept that lump sum compensation was recoverable for brain damage received before 1 January 2002, that does not assist Ms J as she has no evidence of, and has never claimed compensation for, brain damage. Her claim has always been for whole person impairment as a result of her psychological injury, namely PTSD with depressive and anxiety symptoms.
Neither side submitted that the Commission should refer the matter to an Approved Medical Specialist. Whilst it is accepted that Approved Medical Specialists must normally determine medical disputes about the extent of any whole person impairment, given the evidence in the present matter, and the application of the transitional provisions, there is no medical dispute to be referred in this case. Regardless of any assessment by an Approved Medical Specialist, the legal effect of the transitional provisions leads to only one conclusion, namely, that Ms J has no entitlement to lump sum compensation.
It follows that Ms J’s claim for lump sum compensation must fail.
CONCLUSION
Having conducted a review on the merits, I have determined that, for the reasons given in this decision, Ms J contracted a disease, namely PTSD associated with depressive and anxiety symptoms, to which her employment with the Department between 1995 and March 1998 was a contributing factor. I find also that that disease was, in the circumstances of this case, a disease of such a nature as to be contracted by a gradual process. I find that her employment was a substantial contributing factor to that injury. As Ms J suffered no incapacity for work for which compensation was claimed until 11 December 2007, that is the deemed date of injury under section 15 of the 1987 Act. However, because of the effect of the transitional provisions in Part 18C of Schedule 6, Ms J has no entitlement to lump sum compensation and there is no medical dispute to be referred to an Approved Medical Specialist.
In the end, the Department has achieved the outcome it sought with respect to the claim for lump sum compensation, but not for the reasons it argued at the arbitration or, initially, on appeal. The alteration to the quantum of the award of weekly compensation between 21 June 2008 and 21 December 2008 could have been achieved under the slip rule without the need for an appeal. In these circumstances, it is appropriate that the Department pay Ms J’s costs of the appeal.
DECISION
For the reasons given in this decision, paragraphs one, five and six of the Arbitrator’s determination of 19 February 2010 are confirmed. Paragraphs three and four of the determination are revoked. Paragraph two of the determination is revoked and the following order made:
“2.The respondent employer is to pay the applicant worker weekly compensation from 21 June 2008 to date and continuing under section 37 of the Workers Compensation Act 1987 at the applicable statutory rate for a worker with no dependants.”
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200.00 plus GST.
The appellant employer is to pay the respondent worker’s costs of the arbitration, as agreed or assessed. The arbitration is certified as complex under Item 4 of Table 4 of Schedule 6 of the Workers Compensation Regulation 2003 and an uplift of 30 per cent applies to those costs.
Bill Roche
Deputy President
26 May 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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