Dick v Hazwatch Pty Ltd
[2021] NSWPIC 103
•29 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Dick v Hazwatch Pty Ltd [2021] NSWPIC 103 |
| APPLICANT: | Chaavarne Dick |
| RESPONDENT: | Hazwatch Pty Ltd |
| MEMBER: | Ms Jane Peacock |
| DATE OF DECISION: | 29 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological Injury; dispute about causation; both independent medical experts agreed that the applicant had suffered a psychological injury but had differing views on causation; factual dispute about the severity of an incident at work; evidence weighed in balance; Held- satisfied on the balance of probabilities that the psychological injury arose out of or in the course of employment with the respondent; award for the applicant |
| DETERMINATIONS MADE: | 1. The Respondent pay the Applicant weekly compensation as follows: (a) From 2 August 2019 to 1 November 2019 at the rate of $891.10 per week; and (b) From 2 November 2019 to date and continuing at the rate of $750.40 per week. 2. The Respondent pay the Applicant’s section 60 expenses on production of accounts and/or receipts. |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (Application) Ms Chaavarne Dick (the applicant) seeks weekly compensation and compensation for medical expenses as a result of psychological injury alleged to occur on 24 July 2019 in the course of or arising out of her employment as a labourer.
The Respondent is Hazmat Pty Ltd (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation by Employers Mutual Limited (the insurer)
The respondent denied liability for the claim.
ISSUES FOR DETERMINATION
There is no dispute that the applicant suffers from a psychological injury in the form of a panic disorder unanimously diagnosed by both Independent Medical Experts (IMEs) who have been qualified to provide an opinion on behalf of each party, namely, Dr Allan for the applicant and Dr Vickery for the respondent. Liability for injury is however in dispute. That is, it is disputed that such injury arose out of or in the course of the applicant’s employment with the respondent.
In the event the applicant is successful on the liability question, there is no dispute that the applicant has no current capacity for employment.
The parties agree that the PIAWE is $938 per week.
In the event the applicant is successful on the liability question, the parties agree that this would result in an award of weekly compensation in her favour as follows:
(a) From 2 August 2019 to 1 November 2019 at the rate of $891.10 per week; and
(b) From 2 November 2019 to date and continuing at the rate of $750.40 per week.
In the event the applicant is successful on the liability question, the applicant seeks a general order in respect of section 60 expenses and the respondent agrees that such an order should be made.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were admitted into evidence before the Commission by consent and considered in making this determination:
For the applicant:
(a) Application and attached documents.
For the respondent:
(b) Reply and attached documents;
(c) Late documents filed with an Application to Admit Late Documents dated 24 March 2021.
Oral Evidence
The applicant did not seek leave to adduce oral evidence and the respondent did not seek leave to cross-examine the applicant.
FINDINGS AND REASONS
The applicant alleges that on 24 July 2019 she suffered a psychological injury arising out of or in the course of her employment with the respondent.
The respondent is a labour hire company. They employed the applicant to work at different mines sites during shut down of the mines. The applicant says when she got the job with the respondent was excited to “finally have her foot in the door” she had tried for many years to get a job in the mining industry because it was her dream to work in the mines. She had not previously worked in the mining industry, having previously worked as a shearer.
On 24 July 2019 she attended for work at the Newcrest Mining Site. This was her first day at that site.
Her psychological injury is alleged to result from becoming trapped in mud in a large drain during the course of her employment on 24 July 2019.
The respondent disputes the allegation of injury.
This case must be determined on the evidence and in accordance with the law.
Turning then to an examination of the evidence in this case.
Both parties qualified independent medical experts (IME). Dr Allen was qualified on behalf of the applicant and Dr Vickery was qualified on behalf of the respondent.
Dr Allan and Dr Vickery are unanimous in their opinion that the applicant suffers from a panic disorder. Dr Allan also diagnosed post-traumatic stress disorder (PTSD). Both IMEs are of the opinion that the applicant has a psychological condition. Where they differ is in respect to their opinion on causation.
Dr Allan says the applicant’s psychological injury results from the applicant’s perception of events when she was trapped in mud in a large drain on 24 July 2019 (the July 2019 incident).
Dr Vickery says it results from an unrelated incident in September 2019 (the September 2019 incident) when she had a panic attack on the phone to her boss at the shearing shed (another employment situation) when he denied her a day off to attend a medical appointment for her autistic son. The shearing contract was cancelled because of her behaviour during that phone call.
It is common ground that the first complaint to a treating medical professional about her injury was to her general practitioner (GP) Dr Howe on 12 February 2020, some seven months after becoming trapped in the mud in the drain on 24 July 2019 or some five months after the day her boss wouldn’t let her attend a medical appointment in September 2019. On 12 February 2020, the applicant complained to her GP about being trapped in the drain. She did not mention the September 2019 incident.
The respondent does not dispute that the applicant ended up in mud in the drain. The respondent says however that this was a trivial incident only, about which the applicant made no real complaint to them and the allegation that it has resulted in psychological injury is not supported by the evidence. Counsel for the respondent submitted that the evidence of the applicant could not be accepted and that her expert opinion from Dr Allan is based on an incorrect history and therefore could not be accepted either. The counsel for the respondent submitted that the opinion of Dr Vickery should be preferred.
The applicant gave evidence in her statement dated 23 December 2020 that she was paired with an experienced worker Ms Rose Cox (Rose). The instructions were to hose down the trench with a power hose so as to hose the dirt and rocks down the deep end of the trench so it could dissipate through a drain at the deep end. The applicant estimated the trench to be “approximately 10 to 14 feet wide and 10-14 feet deep and approximately 15 feet long. The trench started level and then sloped down towards the drain. The drain was approximately 6 feet long and about 4 feet wide.”
The applicant was hosing the right side of the trench and Ms Rose Cox was at the other end. It was dirty and muddy work.
The applicant gave evidence:
“We had been doing this for a few hours when Rose came up to me and said that the mud wasn’t going anywhere because the rocks had blocked the drain. She instructed me to go into the trench and get the waterflow moving. I asked Rose whether it was safe to enter the trench and she said yes. By this point the trench was quite full with muddy water.”
The applicant describes what happened next as follows:
“I followed her direction and entered the trench with a hose. I attempted to remove the rocks from the drain with the pressure of the hose. This was staring to work so I took a step to the side to push the rocks from a different angle. When I stepped, I began to feel myself sink ankle deep into the mud and water and begin to slide. In an attempt to stop myself from sinking I tried to lift one leg, but the other leg sunk down even further. When I tried to move to the side of the trench the weight of the mud and water which had entered my gumboots held me down and I continued to sink and slide further down the trench. I kept sinking and sliding faster and faster.
I tried calling out for help, but no one could hear me as the machinery was so loud. I was terrified. Rose was always meant to be able to see me. I was terrified and thought I was going to be buried alive. I tried to keep my hands above the mud so that I could reach out for a rail to stop me from sinking. By this point the mud was up to my breast and my arms were outstretched on top of the mud and water. I tried to move myself to the side of the trench to grab a rail, very time I moved I sunk further into the trench.
I was able to get to the side and reach for the rail. By this point the water was up to my chest. I was exhausted and puffed. I dragged myself out of the trench using the side rail.”
The applicant says that when she finally pulled herself out of the trench, Rose took her to the office to get a new uniform such was the state of her clothes. I note that the applicant said that her uniform that she had been provided with at the start of the day was as follows:
“We were provided with wet weather PPE to wear. The PPE was knee high boots and white overalls which were to be tucked into the boots.”
The applicant was required to change unforms after the incident. The fact that it necessitated a uniform change when the protective gear was knee high boots can be seen to support that the applicant’s version of events, that is the mud was higher than boot level.
She says she was given a change of clothes and went to shower and change. She said the uniform was so muddy she had to throw it out. She says she had to put her wet underwear back on.
The applicant said that Rose roped off the trench where the incident occurred.
The applicant says she attempted to call Jodee Schumacher (Jodee) from the respondent but could not get reception and Rose told her she would call Jodee. The applicant says that she bought up filling out an incident report but Rose “shut this down” and said she would take care of it. The applicant says: “at the time I felt as though everyone swept the incident under the rug and I had to go with it.”
The applicant gave evidence that she was “still shaken from the incident but tried to remain calm”. The applicant said:
“I was still shaken from the incident but tried to remain calm. I brought up filling out an incident report however Rose shut this down and said that she would take care of it as I would not know how to do it. At the time I felt as though everyone swept the incident under the rug and I to go with it.”
The applicant gave evidence that she stayed at work and completed her duties until her shift ended. She said this was very difficult. She says “I just tried not to think about what had happened”.
The applicant says that the next day she received a text message from Jodee along the lines of “hey don’t play in the mud today…Rose told me what happened.” The applicant says:
“I was taken aback by this message as it was a very traumatic incident and the message lacked any empathy support or concern.” The applicant says she was “quite embarrassed and felt unsupported”.
The applicant says the next day one of the supervisors discussed the issue and said she was in the mud from the chest down. She felt the supervisors were trying to play down the event and this made her feel more upset and alone.
The applicant gave evidence that she began to experience psychological symptoms as follows:
“the next couple of days were hard. I was very anxious to attend the work site and had constant flash backs. I noticed when I had flashback that my breathing would increase rapidly.”
She said she felt isolated and not safe attending work. She said “I maintained going to work even though I did not want to as I was worried that I would lose my job if I underperformed. Every time I had a flashback I just tried to bury it in my mind or distract myself”.
She thought about accessing counselling through her employer but was worried if she spoke out, she would lose her job.
The applicant gave evidence that she “started drinking alcohol as a coping mechanism, to numb the pain and stop me thinking about the incident. This started about one or two weeks after the incident and I now drink about one 24 pack of Jim beam a night.”
The applicant gave evidence that “when I was allocated to work near the site where it happened I would get scared and anxious.”
The applicant says that this culminated in her calling in sick on 2 August 2019 and not returning because:
“I just could not handle the anxiety of being in the workplace and the flashbacks. This was a very hard decision as I worked so hard to get into the mines.
I was absolutely crushed that my dreams of being an auto electrician in the mines would never occur.”
The applicant says that she was messaged by Ms Jodee Schumacher few times with offers of work but she kept declining her. She said she was embarrassed and upset. She says:
“I did not want to say that I was not going to return to work because of what happened. Jodee had make a joke about what had happened and she would not care.”
The applicant gave evidence that in September 2019 she went back to the shearing sheds. She had 10 years plus experience and had always felt comfortable in the environment. However, she gave evidence that when she went back after the July 2019 incident she was anxious from loud noises and fearful of the handpieces because she was afraid something may go wrong, she says “I found my reaction bizarre and frustrating but I could no control it. I knew the job inside out but now all of a sudden I was fearful of everything and perceived everything as being potentially life threatening.”
She gave evidence about the September 2019 incident as follows:
“It was about mid-September 2019, and I required a day off to take my soon to an appointment. When I asked the owner of the property we were shearing at if I could have a day off, he said no to having that particular day off. Usually, I would just reschedule the appointment and get on with it, but on this occasion I just lost control.
I went into a blind rage and totally lost it at the man. I know it was so misplaced, I am not an angry person, I do not act this way, this was the contract that my partner and I had worked for hard for, I would not throw it away like this, I think I had a panic attack.
I know that I was not actually angry at the man I just exploded. I had held so much in and I was out of control. I was afraid and angry about what had happened at the trench and very upset about how it was handled, I felt so lonely and isolated.
We ended up losing the shearing contract.”
She says she felt useless and like she had thrown away her career in the mines. She says she would often lock herself in her room and cry and ignore everyone. She continued to drink heavily and in early December 2019 attended the emergency depart with chest pain, She was advised the pain was due to excessive alcohol consumption and to stop drinking. She stopped drinking over Christmas and started again in the new year but not the previous extent.
The applicant gave evidence that she first approached her GP Dr Howe in or about February 2020 “as I could no longer deal with the consequences of my workplace injury on my own.”
She stated:
“Dr Howe diagnosed me with PTSD and referred me to psychologist Pierrick Jacquety who I saw fortnightly. I had about two months’ worth of treatment with Pierrick.”
She said she was placed on a waitlist for psychiatric treatment under mental health care plan because she could not afford to pay it.
She took anti-depressant medication for six weeks but ceased this because of side effects.
The applicant gave evidence about her symptomology which includes flashbacks and panic attacks and anxiety. I note both IMEs have diagnosed the applicant with a Panic Disorder.
The respondent disputes the allegation of injury. The respondent relies on the statements of Ms Rose Cox who was supervising the applicant and Ms Jodee Shumacher, the director of the respondent who hired the applicant.
Ms Rose Cox gave evidence in a statement dated 1 April 2020. She gave evidence about the size of the trench. She notes that there are a lot of rocks that can mixed up with the dirt. She denies directing the applicant into the trench to clear the rocks from the drain. She says “I didn’t realise that she had gone and climbed onto the pit at one point. I was hosing on the other side of the pit.”
Ms Cox gave evidence as follows:
“I did not tell Chaavarne to go into the trench to clear the drain, Workers only enter the pit if really necessary which is very rarely the time that I have done this job. You can use the hose above the drain to try and clear the drain but I never asked her to go into the trench. Chaavarne never asked me if it was safe to go into the trench either.
I don’t know how long we had been hosing for, but she came over to where I was hosing and she told me that she sunk in that pit area. I asked her why she went in there. She said that she was trying to unblock the grate.
I asked her if she was alright. I could see that she had mud up to her knees. The suction of the mud got her boots and she had to crawl out. She said that she was alright but didn’t know if she would go down any further. She showed me where she sunk. I went down to the area where she had gone but I didn’t go as far as she went I could see where she crawled out.
When UI asked her if she was fine, she said that she was. I told her that I would tape the are off and then we went to the office and reported it. They gave her new overalls because her ones were all wet.”
Ms Cox said that the applicant appeared fine to keep working and did not appear stressed.
Ms Cox said that over the next couple of days they were doing the same job hosing at the same pit and the applicant did not appear stressed. She said she didn’t talk about it.
Ms Cox gave evidence as follows:
“I dint have any conversation with Steve Menne about Chaavarne sinking in the mud after I took her to the office. I did tell some Newcrest guys at the safety meeting in the morning the following day about the incident as that’s normal procedure, I said the pit was full and one of the girls that I was with sunk in there so I taped it off and put information tags there and asked if there was any chance of getting someone to come and empty the pit because we wouldn’t wash down the dirt. I left it at that.
The reason that I taped off the area after Chaavarne sunk in the mud was because I didn’t want anyone entering into that area. Taping off is a normal safety procedure when there is an incident. I also put the information tag on the taping. I wrote on the tag that there was a possible chance of sinking in some spots. I put my name on it with my phone number and date that it happened. Its gets investigated after that. The danger tape cannot be removed by anyone else until it is rectified. I am no real expert in that department and each individual makes the decision for any actions after an incident. I just felt it was important to put the danger tape around the area.”
Ms Cox gave evidence that she didn’t work with the applicant the second week that she worked and she didn’t see her after that.
Counsel for the respondent submitted that the injury was “trivial” and that “the more reliable description of the injury and we’re not saying the injury didn’t happened – is that given by Ms Rose, who witnessed it.” However, when taking into account the evidence from Ms Cox, it is very clear that she did not see the applicant go into the trench or whether she became trapped and the extent to which she was stuck in the mud. When weighing the evidence of Ms Cox I note that her description is consistent with the applicant having sunk in the mud, having lost her boots trying to get out because they were stuck in the mud, that she had to crawl out, that she was far down the trench (because Ms Cox refers to not going down as far as the applicant), that she regarded as a situation that necessitated the area being roped off because she did not want anyone else to sink in the mud, that a uniform change and new boots were necessary. The applicant’s perception of the terror of this event, her perception that she thought she was going to drown, is really only something that the applicant can attest to. She gave evidence that particularly after receiving the text message “don’t play in the mud” she didn’t feel comfortable talking about the incident and she was embarrassed, upset and felt isolated. She gave evidence that she tried to deal with the emotions and symptoms that arose as a result of July 2019 incident herself until she could no longer do so and she sought the assistance of her GP on 12 February 2021.
The respondent also relies on the evidence of Ms Jodee Schumacher, a director to the respondent who gave evidence in a statement dated 26 March 2020.
Ms Schumacher gave evidence:
“Chaavarne did not contact me at all on the day of the accident. I contacted Rose that night to see how she felt Chaavarne went at the site, Rose told me that she went okay and was a good worker. Rose said that Chaavarne had steeped into some mud. Rose said that she in mud up to her knees. I asked what happened. Rose said that it was cold and wet so she took Charvanne up to the office and Chaavarne changed her overalls. They went into the office and spoke to Steve Mennen, Chaavarne got a change of overalls as she was in wet clothing and another set of PPE overalls They gave her another set of gumboots as well, Chaavarne was apparently happy to go back to work Rose said that they went and had lunch after that. I asked if everything was fine and what the outcome was, Rose said that there was not an outcome because there wasn’t an incident. She gave me the impression that there wasn’t a need for an incident report. Rose told me that they put danger tape around the site where Chaarvarne stepped in the mud so that nobody else walked into it. It was a pretty short conversation with Rose, and I didn’t get any indication that there was any life threatening issue of any kind.
The next morning, I always text the workers to make sure they are heading out to work, I think I sent a text to Chaavarne the following morning commenting that Rose had informed me about the mud, so I think I made some sort of friendly comment about not playing in the mud. It was light-hearted because from what I understood there wasn’t an issue.
I don’t have a record on my phone of the correspondence ewe had at the time, but I remember that Chaavarne replied back that she was fine and it was all good and a little embarrassing. She worked as required and did not raise that she had any issues with the mud incident.”
Here I note that Ms Shumacher’s evidence that she was given to understand that the applicant merely stepped in mud is inconsistent with Ms Cox’s statement which I have highlighted above, namely, her description is consistent with the applicant having sunk in the mud, having lost her boots trying to get out because they were stuck in the mud, that she had to crawl out, that she was far down the trench (because Ms Cox refers to not going down as far as the applicant), that she regarded as a situation that necessitated the area being roped off because she did not want anyone else to sink in the mud. This goes beyond simply stepping in mud.
Ms Schumacher goes onto to give evidence that she spoke to the applicant the following week and no difficulties were reported.
The shut down was due to end on 1 August 2019 but the applicant did not work that day as she had issues with her children.
The next shut down was due in September. Ms Schumacher gave evidence:
“when I was finishing g that shut down I would have told her that I would have another shut down the following month and would have asked if she wanted me to put her name on the list for the next shut down and she said yes. That is why I put her name on the list. Then she contacted me and said she couldn’t do the shut down in September. That was okay.
Charbanne told me that she had full time work in a shearing shed. She said that she still wanted me to keep her on the books just in case the shearing job fell over and if needed her I could call. If she could fit it in, she would work because she needed the extra hours. That would have been around mid to late August 2019. I was gearing up to do another shut down at that stage. I make calls to my causals to get them ready for the next round of shut down work that the mine needs, the next shut down came around on 16 September 2019. I have it marked in my set up list that she had full time work and I did not have her down for the September shut down.
Then she also said that in the future if this shearing job finishes or she is nor required she is more than happy to come and work for me again. She said that she loved doing the work. That indicated to me that she isn’t traumatised.”
Ms Schumacher gave evidence that she had no further contact with the applicant. Due to personal issues in her own life Ms Schumacher stopped operating in September 2019.
Ms Schumacher goes onto give evidence that the next contact she had with the applicant was when she received a text from her on 13 March 2020 which read as follows:
“Hi Jodee, its Chavanne here. Just messaging to tell you that I am having bad anxiety and panic attacks at work and home and been coming up quite frequently over the past 6 months. My doctor had asked me if I had been through a traumatic event within the last year. I had let him know what happened at work the time I sunk chest deep in the trench., He has narrowed my situation down to post traumatic stress disorder. In saying that I have a claim so that my medical bills and what not will be covered by your insurance company. I will email you the event and paper work also. Sorry it has come to this, I really tried to handle the situation on my own. Just can’t anymore. Thankyou.”
69. I note the text message form the applicant is consistent with her explanation that she tried to manage her panic attacks and anxiety from the incident on her own, but she could no longer do so by February 2020 which is when she went and saw her GP for the first time.”
The applicant saw her GP Dr Howe on 12 February 2020. The GP immediately placed her on a mental health treatment plan noting the presenting problem was: “traumatic event at work” and diagnosis was PTSD. The relevant history was noted as “work incident p having trouble dealing with things”. He referred her to a psychologist.
The clinical records of Dr Howe record the consultation on 12 February 2020 as follows:
“3/12 ago; work accident- was buried in cement for a few minutes. Slipped in some mud that was in a drain. Kept working for 2/52 but did not go back to mine. Has not been able to RTW. Distress (K10) assessment: Kessler psychological distress scale (K10) performed: score of 37 indicates probable distress! MHTP”.
The counsel for the respondent submitted that I would not accept the applicant’s evidence because the GP recorded the incident as having happened three months before his consultation with the applicant.
However I note that when the GP completes the work cover medical certificate he specifies the date of injury as 24 July 2019. When all the evidence is weighed in the balance I do not think anything turns on his recording that the incident took place 3 months before his consultation with the applicant. It is clear that it is the incident in the mud that is being referred to and the Workcover certificates he issues correctly identifies the date of injury as 24 July 2019.
The applicant saw the psychologist Mr Pierriock Jacquety on referral from the GP under the mental health treatment plan. At the first available appointment in April 2020 Mr Jacquety recorded a history of the July 2019 incident and onset of psychological symptoms consistent with the applicant’s evidence as follows:
“Miss reported being involved in an accident at work on the 24/7/19. She reported working in a clean up at Kadia mine and sated she almost died. She reported that whilst cleaning machinery she was asked to clear rocks from a drain and stated she started sinking in mud. She reported having only survived by grabbing a rail and pulling herself out. She reported that she was by herself instead of having two people for safety precautions. She reported that when she advised the office of what happened she was told to change her clothes and get back to work. She reported the next day her manager told her “don’t play in the mud”. She reported feeling like no one was taking the incident seriously until she spoke to a prior health and safety officer who advised her that this was not normal. She reported having left the job and returned to shearing. She reported experiencing panic attacks at work leading to increased HR, hyperventilating, crying etc. She reported wanting the mining job and feels as though this was a step backwards in her life.
She reported having a partner at home and a 5 year old son with autism. She reported trying to hide her emotions from her son as it leads him to get overwhelmed, however stated this often leads her to be aggressive towards her partner who is also a shearer and seems to have difficulties understanding her difficulties. She reported initially her alcohol consumption had increased, however stated she stopped in December last year. She reported poor sleep.”
The applicant saw Dr Allan at the request of her lawyers on 12 January 2021 and he provided a report dated 13 January 2021.
Dr Allan takes a history consistent with the applicant’s statement evidence and Dr Allan conducted a mental health examination.
Dr Allan had available to him the other evidence including the factual investigation and the statement of Ms Rose Cox to which he refers. He also had available Dr Vickery’s opinion.
Dr Allan diagnoses a panic Disorder and PTSD. Dr Allan opines in regard to causation as follows:
“From the history provided to me, I regard he incident where Ms Dick was in a trench hosing debris and sinking into the mud reportedly up to “chest level” as being the cause of her condition. The fact that she had been back to work thereafter indicates to me a potential state of chock around the time of the reported incident, rather then her not necessarily been troubled by it in the first place. By regard, the trench incident has been the whole cause of what has become panic disorder and post traumatic stress disorder.”
The respondent relies on the report of Dr Vickery, psychiatrist, who saw the applicant at the request of the respondent’s lawyers on 5 May 2020 and provided a report dated 18 May 2020.
Dr Vickery took a history and conducted a mental state examination.
Dr Vickery had regard to the statements obtained in the factual investigation.
Dr Vickery regards it as “significant that Ms Dick had not mentioned any work related psychopathy until seven months following g the work incident.”
Dr Vickery opines:
“It is my opinion on the basis of all of the information provided that Ms Dicks employment was not the substantial contributing factor to a diagnosable psychiatric injury.
There was the incident in which the shearing contract was cancelled which was likely to have been the cause of her decompensation and particularly as this was when she had her first panic attack on the phone to her employer when he was annoyed and following which there were regular panic attacks and she had stated drinking heavily.”
Dr Vickery made the following diagnosis:
“Ms Dick was on the phone to her boss and “he was annoyed and I had a panic attack and he thought I was on drugs and he cancelled my contract and after that everything went downhill and I was having regular panic attacked an I locked myself in my room as I have never not had a job,\Ms Dick reported “the dreams of what happened have come and go now and I can live through it but what bothers me now is my panic attack as it drains everything out of me and it happens whenever I cry and even if I have just one tear and then I have to go to sleep for up to five hours.
The diagnosis is Panic Disorder.”
I have had regard to the totality of the evidence in this matter and weighed it in the balance.
There was an incident in September 2019 when the applicant became enraged at the property owner where she was shearing for denying her time off to attend a medical appointment with her son. Dr Vickery attributes the applicant’s panic disorder to this incident which resulted in the loss of the shearing contract and not the July 2019 incident. However when I weigh all of the evidence in the balance, I am satisfied on the balance of probabilities that the applicant was involved in an event that she perceived as traumatic and life threatening on 24 July 2019 when she became stuck in the mud in the trench near the drain. Whilst the evidence from the respondent’s witnesses including Ms Cox and Ms Schumacher would seek to minimise the event and its impact on the applicant, the fact is the applicant was so wet and dirty and muddy that she had to shower and change out of her uniform into a new one and the area was then roped off to protect other workers from the hazard. There were no witnesses to the actual event but there is no doubt on the evidence that an incident occurred. The respondent’s counsel submitted it was a trivial event. But it is t is clear from Ms Cox’s evidence that the applicant sunk in the mud, that her boots were suctioned off by the mud, that she had to crawl out of the trench because Ms Cox gave evidence that she could see where the applicant crawled out, that the applicant was quite far down the trench near the drain end where she crawled out because Ms Cox when viewing the trench after the incident did not go as far down as the applicant had been. Ms Cox was concerned to protect other workers from the hazard and roped off the area and marked it with information tags identifying the danger. Ms Schumacher’s characterisation in her evidence that the July 2019 incident was one in which the applicant had “stepped in mud” cannot be accepted. Neither Ms Cox nor Ms Schumacher can attest to the applicant’s true state of mind after the event. The applicant gave evidence that she didn’t talk about it, she was embarrassed and upset and she returned to work and tried to suppress her emotions. Dr Allan considers it likely that she was in a state of shock. The applicant, on her evidence and supported by the records of her GP and her psychologist and supported by the opinion of the IME Dr Allan, perceived the July 2019 event as life threatening. She gave evidence that from that time she started experiencing psychological symptoms, but she tried to keep working as she was embarrassed and she also did not want to lose her job as she had long dreamed of working in the mines. She gave evidence that in her perception Ms Cox and Ms Schumacher tried to minimise the event as evidenced by the text message “don’t play in the mud”. The applicant says that she tried to deal with the psychological sequelae from the July 2019 incident herself until she could no longer do so on her own and sought the assistance of her GP on 12 February 2020. When she sought her GP’s assistance for her psychological distress the applicant gave a history of the July 2019 incident. Her presentation to the GP caused him to rate the applicant on the Kessler Psychological Distress Scale at 37 which he notes indicates “probable distress!” and to refer her to a psychologist under a mental health treatment program. The GP referred the applicant to a psychologist Mr Jacquety who on first consultation in April 2020 takes a history of events on 24 July 2019 and resultant psychological symptoms that are consistent with the applicant’s evidence in these proceedings. Both IMEs Dr Allan and Dr Vickery agree that the applicant has a psychological injury but they differ on the question of causation. When I weigh all of the evidence in the balance I prefer for the reasons I have given throughout this statement of reasons, the opinion of Dr Allan to that of Dr Vickery on the question of causation. When I weigh all of the evidence I am satisfied on the balance of probabilities that the applicant suffered a psychological injury as a result of the incident on 24 July 2019 in the course of or arising out of her employment with the respondent to which her employment was a substantial contributing factor. I note that the causation issue was the only one that I was asked to determine by the parties as they reached agreement on the awards which would flow in the event of a finding in favour of the applicant. Accordingly there will be an award for the applicant in the terms agreed by the parties as follows:
(a) The Respondent pay the Applicant weekly compensation as follows:
(i)From 2 August 2019 to 1 November 2019 at the rate of $891.10 per week; and
(ii)From 2 November 2019 to date and continuing at the rate of $750.40 per week.
(b) The Respondent pay the Applicant’s section 60 expenses on production of accounts and/or receipts.
Jane Peacock
MEMBER
29 April 2021
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