Donovan v Secretary, Department of Education and Communities

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Donovan v Secretary, Department of Education and Communities [2015] NSWWCCPD 27
APPELLANT:	Michelle Donovan
RESPONDENT:	Secretary, Department of Education and Communities
INSURER:	Allianz Australia Insurance Ltd
FILE NUMBER:	A1-6144/13
ARBITRATOR:	Mr M Snell
DATE OF ARBITRATOR’S DECISION:	12 December 2014
DATE OF APPEAL DECISION:	27 April 2015
SUBJECT MATTER OF DECISION:	Psychological injury; claim for lump sum compensation for loss of vision due to retinal artery occlusion in the left eye; whether occlusion due to stress caused by psychological injury; correct approach to causation; assessment of expert evidence; whether Senior Arbitrator erred in accepting evidence of treating ophthalmologist in preference to evidence of qualified psychiatrist; assessment of evidence; weight of evidence; relevance of pre-existing medical condition; whether pre-existing medical condition aggravated by psychological injury
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Herbert Weller
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	The Senior Arbitrator’s determination of 12 December 2014 is confirmed.

INTRODUCTION

This appeal concerns a challenge to an Arbitrator’s finding that he was not satisfied, on the balance of probabilities, that loss of vision in the worker’s left eye was causally related to the stress associated with a psychological injury. For the reasons explained below, the challenge is unsuccessful.

BACKGROUND

The appellant worker, Michelle Donovan, started work with the respondent as a teacher in 1990. In or about 2007 and 2008, Ms Donovan suffered a psychological injury in the form of a generalised anxiety disorder and panic disorder secondary to harassment and bullying at Winmalee High School. The respondent formally disputed liability for this injury, though made no submissions in support of that position.
On the medical history recorded by Dr Delaney, ophthalmologist qualified by Ms Donovan’s solicitor, Ms Donovan suffered from “mottling or patchy vision” in her left eye which started in July 2009 and lasted for about three weeks. Investigations at about that time at the Sydney Eye Hospital revealed no abnormality.
On or about 9 November 2009, Ms Donovan experienced a loss of vision in her left eye. She ceased work and attended the Nepean and Westmead Hospitals where various investigations were performed.
On 11 November 2009, Ms Donovan came under the care of Professor Mitchell, a Professor of Ophthalmology at the University of Sydney. He diagnosed her to have a retinal artery occlusion in her left eye.
Ms Donovan remained off work until about mid-2010, returning to work in the third term on a return to work program, working three to four days per week at Nepean High School. She undertook a Masters of Education degree, at an accelerated rate, and from late 2011 worked full-time as a teacher/librarian at Jamison High School, where she continues to work.
In a s 74 notice dated 31 August 2011, the respondent denied liability for the left eye condition on the ground that the loss of sight was not a workplace injury.
In a report dated 31 October 2011, Dr Delaney diagnosed a “central retinal artery occlusion with a loss of vision in [Ms Donovan’s] left eye” resulting in a 100 per cent loss of vision in the left eye, equal to 24 per cent whole person impairment, which was permanent.
On 9 November 2012, Ms Donovan’s solicitor made a claim for lump sum compensation and for work injury damages as a result of her loss of vision. The respondent denied liability in a second s 74 notice, dated 13 December 2012, in which it asserted, among other things, that any injury to Ms Donovan’s left eye on 9 November 2009 was not related to her employment.
In an Application to Resolve a Dispute (the Application) filed with the Commission on 26 April 2013, Ms Donovan claimed lump sum compensation of $66,250 ($41,250 for a 24 per cent whole person impairment due to loss of vision in the left eye and $25,000 for pain and suffering). The Application pleaded a date of injury of 9 November 2009 and described the injury as “central retinal artery occlusion with a loss of vision in her left eye, stress, depression”, which was alleged to have been caused by “bullying, intimidation, harassment by colleagues.”
In an Amended Application to Resolve a Dispute, filed without objection on 24 June 2014, the same date and cause of injury were pleaded, but the injury was described as “[p]sychiatric injury, depression, stress, panic attacks, anxiety and central retinal artery occlusion with a loss of vision in her left eye”.
The essential issue between the parties at arbitration was whether the loss of vision resulted from the psychological injury with the respondent, which injury had never been seriously contested by the respondent. Ms Donovan’s case was presented on three alternative bases. First, that the bullying and harassment at work caused stress that resulted in vasospasm (spasm of a blood vessel), which caused the retinal occlusion.
Second, Ms Donovan had been diagnosed with ulcerative colitis (ulceration of mucosa of the colon) in about 1996. She argued that this condition was a disease that was aggravated by the stress caused by the bullying and harassment at work and this aggravation resulted in vasospasm which caused the retinal occlusion.
Last, Ms Donovan contended that she suffered a primary psychological injury and, as a result of that injury, she suffered a consequential condition involving the loss of vision in her left eye.
Ms Donovan relied on evidence from her qualified psychiatrist, Dr Jungfer, who reported on 22 August 2014 that medical literature documented “the role of ulcerative colitis in central nervous system vascular pathology”, which was “a primary condition that may directly be implicated with the cause of the retinal occlusion”. Dr Jungfer said that Ms Donovan’s “ulcerative colitis is likely to have been negatively impacted upon by the stress at the workplace”. She added that the “general practice notes” indicated that by 2009 Ms Donovan:
“did have a mild exacerbation of her ulcerative colitis. Therefore this may have a role to play in terms of the cause of her subsequent vasospasm or occlusion of her retinal artery.”
The respondent contended that Dr Jungfer did not provide acceptable support for Ms Donovan’s proposition that stress directly caused the loss of vision in the left eye, noting that her opinions went beyond her area of expertise as a psychiatrist. It relied on evidence from Dr Delaney to the effect that it was possible that the stress Ms Donovan was suffering from contributed to the loss of vision, “but the mechanisms of this [were] not clear” and it could only be stated that stress “was a possible cause for [Ms Donovan’s] retinal vascular occlusion”.
The respondent also relied on evidence from Professor Mitchell who stated that he did not maintain that stress was “the main cause of [Ms Donovan’s] vasospasm (and loss of vision)” (it having been suggested by Ms Donovan that that was the view he expressed to her, her husband and her general practitioner), adding that there was no “definitive evidence that vasospasm was responsible” (for the loss of vision).
The respondent also relied on the evidence from Dr Duggins, senior staff specialist neurology at Westmead Hospital, who reported on 14 December 2009 that Ms Donovan had a history of ulcerative colitis, which had previously been severe but had been stable in recent months, noting that the association of retinal vascular complications and inflammatory bowel disease was “well described”.
Dr Duggins reported on 5 November 2010 that Ms Donovan had returned to the neurovascular clinic after an episode of left arm tingling, extending up to the face after a period of minutes or hours, in early October. This occurred in the context of a left sided central retinal artery occlusion in November 2009, which he “considered to be a retinal vascular complication of her inflammatory bowel disease, now in remission”.
In written submissions filed without leave after the conclusion of the arbitration, Ms Donovan’s solicitor, Mr Weller, submitted, contrary to the oral submissions he made at the arbitration, that if the Senior Arbitrator was against his primary submission, Ms Donovan would be entitled to succeed on the basis of the “disease provisions” in that her disease of ulcerative colitis was exacerbated by the stress caused by the working conditions at the school and the “activity of the disease, triggered by the stress, lead to the vasospasm that resulted in the occlusion of her retinal artery”.
Over objection by the respondent, and notwithstanding the unsatisfactory way they were raised, that is, without first seeking leave to file them, the Senior Arbitrator permitted Mr Weller to rely on his written submissions and on the disease provisions.
In a decision delivered on 12 December 2014, the Senior Arbitrator preferred the opinion of Professor Mitchell to the effect that the “underlying cause” of the retinal artery occlusion was unknown and that, though vasospasm was “one possibility”, none of the investigations had confirmed that that was the cause. The Professor did not believe that Ms Donovan’s “eye condition was related to her employment”.
The Senior Arbitrator was not persuaded that the cause of the occlusion was vasospasm, noting that it “may have been” ([143]), but the medical evidence did not establish on the probabilities that it was. The Senior Arbitrator did not feel any sense of “actual persuasion” ([143]) on that topic.
Even if it were assumed that vasospasm was the cause of the retinal artery occlusion, it was not established, on the probabilities, that vasospasm resulted from stress ([144]). Though Dr Delaney conceded that stress “may have played a role”, he said the cause was “uncertain” and added that stress could only be described as a “possible cause” and the “mechanisms of this are not clear” ([144]).
Dealing with Mr Weller’s second argument – that ulcerative colitis was a disease aggravated by the stress caused by the bullying and harassment at work and this aggravation resulted in vasospasm which caused the retinal occlusion – the Senior Arbitrator concluded, for the reasons outlined above, that he was not persuaded that Ms Donovan suffered from vasospasm which resulted in the occlusion which caused her loss of vision.
On the specific question of whether Ms Donovan had established an exacerbation of a disease within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987, as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012, the Senior Arbitrator said that the records from Dr Owen, Ms Donovan’s treating general practitioner, were consistent with an exacerbation of the symptoms of ulcerative colitis on 1 October 2008, with such symptoms settling by 22 October 2008. He was not persuaded that Ms Donovan suffered any exacerbation of her ulcerative colitis after that date and it followed that the exacerbation argument failed.
Turning to Mr Weller’s third argument – that the psychological injury resulted in vasospasm, which resulted in the central retinal artery occlusion – the Senior Arbitrator said that his finding that he was not satisfied that Ms Donovan suffered from vasospasm was sufficient to dispose of this point. He added, referring to the principles of causation discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), that he did not accept that there was an exacerbation of Ms Donovan’s ulcerative colitis in 2009. In addition, he did not accept that it was established, on the probabilities, that the cause of the retinal occlusion was vasospasm. It followed that Ms Donovan could not prove, on the balance of probabilities, that the retinal occlusion resulted from the psychological injury.
It followed that Ms Donovan had not established that her loss of vision resulted from her employment injury and the Senior Arbitrator made an award for the respondent.
Ms Donovan has appealed.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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.”
In the Amended Appeal Against Decision of Arbitrator, filed on 2 February 2015, Mr Weller marked “no” in answer to the question of whether the appeal can be decided solely on the basis of the written application and any written Notice of Opposition. However, he made no submissions in support of that position. He did, however, file detailed submissions in support of the various grounds of appeal. Counsel for the respondent, Mr Halligan, has consented to the appeal being dealt with on the papers.
In the absence of submissions as to why an oral hearing is required, given the nature of the issues raised, and having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by Mr Halligan 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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Senior Arbitrator erred in:
(a)     misapplying the legal approach to the issue of causation (misapplication of the legal approach to causation);
(b)     finding that the opinions of Professor Mitchell and Dr Delaney were entitled to greater weight than the views of Dr Jungfer (evidence of Professor Mitchell and Dr Delaney);
(c)     discounting the weight to be given to the opinion of Dr Jungfer because Dr Jungfer did not have the benefit of “background material” (weight of Dr Jungfer’s evidence);
(d)     ignoring the undisputed and uncontested opinion of Dr Jungfer to the effect that severe stress caused a cerebrovascular accident resulting in the loss of vision in Ms Donovan’s left eye (Dr Jungfer’s evidence);
(e)     ignoring the undisputed and uncontested opinion of Dr Jungfer that the cause of the occlusion was stress which resulted in either:
(i) a stroke, or
(ii) a vasospasm, or
(iii) exacerbation of a pre-existing ulcerative colitis, or
(iv) a combination of the above. (Dr Jungfer’s evidence)
(f)      failing to find that as a consequence of the stress or psychiatric injury (which was not disputed), Ms Donovan suffered an exacerbation or “flare up” of her inflammatory bowel disease/ulcerative colitis (flare up of ulcerative colitis);
(g)     preferring the opinion of Professor Mitchell (evidence of Professor Mitchell and Dr Delaney), and
(h)     failing to find, in the absence of any other known cause (and after extensive investigations and thorough tests), that the loss of eye sight was caused by the stress/psychiatric injury (absence of any other known cause).

GROUND ONE – MISAPPLICATION OF THE LEGAL APPROACH TO CAUSATION

Submissions

Mr Weller submitted that the Senior Arbitrator failed to apply the common law approach to causation, noting that the “common sense question of causation is one of fact and inference”. He said the Senior Arbitrator was obliged to look at the whole of the evidence, both lay and expert, in concluding whether there was a probable causal relationship between the act or omission of the respondent and Ms Donovan’s medical condition, that is, her psychiatric condition (Seltsam Pty Ltd v McGuiness (2000) 40 NSWLR 262 (McGuiness)).
Mr Weller contended that the medical evidence did not deny the connection between the stress and the occlusion and it was a matter for the Senior Arbitrator to “properly assess the whole of the evidence to arrive at a conclusion as to whether or not the causal connection had been established on the balance of probabilities”. Mr Weller relied on the following statement by Herron CJ in EMI (Australia) Ltd v Bes (1970) WCR 114 at 119, quoted by Einstein J in Murray v Shillingsworth [2006] NSWCA 367 (Shillingsworth) at [37]:
“It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but Courts are always concerned to reach a decision on probability and it is no answer, it seems to me, that no medical witness states with certainty the very issue which the Judge himself has to try.”
Mr Weller argued that the Senior Arbitrator erred by failing to give “proper weight to the uncontested views of Dr Jungfer and also the uncontested lay evidence”. He said the Senior Arbitrator failed to use “his own intuitive inferences to draw conclusions from the whole of the evidence”. It was not a matter of ascertaining scientific proof or finding “a definite conclusion”. What was required was a determination of the probabilities from the whole of the evidence. The commonsense approach is “clearly different from any scientific approach” and there is a clear link, in this case, from the uncontested evidence of Dr Jungfer.

Discussion and findings

The Senior Arbitrator did not “misappl[y] the legal approach to the issue of causation”.
The Senior Arbitrator expressly referred to the approach in Shillingsworth and quoted extensively (at [136]) from that part of the decision which summarised the principles explained in McGuiness. In particular, he was aware that there are cases where medical science cannot identify the biological or pathological mechanism by which disease develops and that such a state of affairs is “not necessarily determinative of the existence or non-existence of a causal relationship for the purposes of attributing legal responsibility” (per Spigelman CJ in McGuiness at [93], quoted by the Senior Arbitrator at [136]).
The Senior Arbitrator correctly noted (at [137]) the statement by McDougall J (McColl and Bell JJA agreeing) at [44] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must “feel actual persuasion of the existence of that fact”. After an extensive review of the relevant evidence, lay and expert, the Senior Arbitrator concluded that he did not “feel any sense of actual persuasion on the topic” ([143]) of whether the retinal occlusion resulted from vasospasm.
Moreover, in dealing with Mr Weller’s third point, the Senior Arbitrator quoted and applied the test of causation described in Kooragang. As explained in that case, what is required is a “common sense evaluation of the causal chain” (per Kirby P at 463). That is the test the Senior Arbitrator applied. Applying that test, and after a comprehensive review of the expert and lay evidence, he was not satisfied that Ms Donovan had established her case on the balance of probabilities.
It follows that the Senior Arbitrator’s approach to the issue of causation was consistent with the relevant authorities and disclosed no error. Whether there is a “clear link” between the psychological injury and the retinal occlusion, as Mr Weller has contended, and whether the Senior Arbitrator erred in not drawing that conclusion, is discussed further below.

GROUNDS TWO AND SEVEN – EVIDENCE OF PROFESSOR MITCHELL AND DR DELANEY

Submissions

Mr Weller submitted that the severe stress experienced by Ms Donovan was “central to her complaint” and that the effects of severe stress are within the expertise of Dr Jungfer. Neither Professor Mitchell nor Dr Delaney has any experience in that field of expertise, namely, psychiatry. On the question of whether severe stress could trigger a cerebrovascular accident, Dr Jungfer was better placed than either Professor Mitchell or Dr Delaney to proffer an opinion.

Mr Weller contended that Dr Jungfer’s evidence was uncontested and “was the only relevant evidence within the relevant area of specialty, namely psychiatry”. Dr Synnott, psychiatrist qualified by the respondent, said that he did not have the medical expertise to give an opinion as to whether any psychiatric condition suffered caused the occlusion. Professor Mitchell conceded that vasospasm is related to stress and Dr Delaney conceded that stress may have played a role.
The Senior Arbitrator was therefore, in Mr Weller’s submission, in error in finding that, on causation, the opinions of Professor Mitchell and Dr Delaney were entitled to greater weight and he erred in failing to give proper weight to the opinions of Dr Jungfer, whose area of expertise fell well and truly within the relevant area of psychiatry.
Mr Weller added, in support of ground seven, that it was incorrect to suggest, as the Senior Arbitrator had at [142], that Professor Mitchell “alter[ed] a previous opinion to the effect that stress caused the vasospasm which led to the blindness”. According to Mr Weller, what Professor Mitchell did in his report of 1 August 2011 was to qualify his earlier expressions of opinion. However, the Professor remained of the view that “vasospasm is a possibility”. He said he could not “be confident” and then considered other alternative mechanisms as a result of trauma, which was not a suggested explanation of the injury. In relation to whether the vasospasm was related to stress, Professor Mitchell said “I cannot be confident”.
Mr Weller submitted that there was no basis for accepting the opinion of Professor Mitchell over the unchallenged evidence of Dr Jungfer, when dealing with the consequences of severe stress caused in the employment environment. Dr Jungfer was the appropriately trained expert to deal with “the real issue in dispute”, that is, the relationship of stress and the occlusion which led to the blindness.

Discussion and findings

Having reviewed the expert and lay evidence in detail, the Senior Arbitrator preferred the evidence of Professor Mitchell and Dr Delaney to that from Dr Jungfer. He was entitled to do so.
I accept that the psychological effects of stress were no doubt within Dr Jungfer’s field of expertise and that she was entitled to express an opinion on those matters. However, the suggestion that the loss of vision due to stress was within her expertise, and that the treating ophthalmologist (Professor Mitchell) and the qualified ophthalmologist (Dr Delaney) had no experience or expertise on that issue, and that their opinions were therefore entitled to either no weight or less weight, is simply untenable and is rejected.
As Mr Halligan submitted, matters relating to eyesight, retinal disturbance, the aetiology of eye diseases and, I would add, loss of vision, are clearly within the expertise of ophthalmic surgeons rather than psychiatrists. The Senior Arbitrator was therefore entitled to prefer the evidence of Professor Mitchell and Dr Delaney over the evidence of Dr Jungfer, noting (at [140]) that they were both “experienced medical practitioners in the relevant speciality” and that the causation issues fell “more within [their] specialities” than that of Dr Jungfer. That statement was clearly correct.
The submission that Dr Jungfer’s evidence was uncontested is plainly wrong. The issue of causation was hotly contested and the subject of extensive expert evidence. Professor Mitchell’s ultimate opinion was, as the Senior Arbitrator noted, that the “underlying cause” of the retinal artery occlusion was unknown. Though the Professor conceded that vasospasm was “one possibility”, he added that none of the investigations had confirmed that the cause (of the occlusion) was vasospasm. He concluded that he did “not believe that [Ms Donovan’s] eye condition was related to her employment”. The Senior Arbitrator referred to and accepted this opinion. He was entitled to do so.
Dr Delaney took a history that Professor Mitchell supported the proposition that “her loss of vision could be due to vasospasm, which may be related to stress that she was under”. Notwithstanding that history, which was not consistent with Professor Mitchell’s ultimate opinion, Dr Delaney described the cause of Ms Donovan’s loss of vision as “uncertain”, though conceded that it was “possible” that stress “contributed” to this, but “the mechanisms of this are not clear”. This evidence did not support, at the appropriate standard, namely on the balance of probabilities, a causal connection between work stress and the retinal artery occlusion.
The Senior Arbitrator did not fail to give proper weight to the opinions of Dr Jungfer. He carefully considered her evidence and, for reasons given, did not accept it.
Dr Jungfer prepared two reports. In her first, dated 25 July 2011, she took a history of the loss of sight in the left eye and that Ms Donovan had been told by her ophthalmologist (Professor Mitchell) that the event was due to vasospasm and that stress could be a possible causative factor. Though Dr Jungfer expressed an opinion on Ms Donovan’s psychological injury, she expressed no opinion on the cause of the loss of sight (this statement is disputed by Mr Weller and is discussed further at [93]–[96] below).
Mr Weller wrote to Dr Jungfer on 4 July 2014 (wrongly referred to as 8 July 2014 in the decision) to explore whether “vasospasm in the eye (which I understand is a stroke) can be caused by stress/psychiatric injury”. The letter indicated that Dr Jungfer had indicated that she did not know the answer to that question, and “would have to research the issue”. As the Senior Arbitrator noted, given that Dr Jungfer is a consultant psychiatrist, that was an understandable response.
Dr Jungfer responded on 22 August 2014. She said that the issue of whether stress can cause vasospasm was “not straightforward”. She referred to research that demonstrated a relationship between stress and “vasospasm of the coronary arteries” (emphasis added), but said that she “could find no studies in literature that have correlated cerebrovascular spasm that is spasm of the cerebrovascular system with stress”.
While acknowledging that the cerebrovascular system and the coronary artery system are two distinct vascular systems, Dr Jungfer said the fact that the arterial system of the coronary arteries have been shown to experience vasospasm in response to stress “would indicate that this is a possible mechanism of pathology that may also occur in the central nervous system” (emphasis added) but it was unlikely that research could be found to support that “distinctly in the cerebral vascular system”.
Dr Jungfer concluded that “[p]ure vasospasm secondary to stress may also be a contributing factor or the causative factor for [Ms Donovan’s] vascular injury” (emphasis added). The Senior Arbitrator summarised Dr Jungfer’s evidence as follows, at [135]:
“Dr Jungfer’s opinion on this issue was essentially that, although there were no studies of which she was aware demonstrating a causal relationship between stress and vasospasm in the cerebrovascular system, there may be such a relationship as stress was known to cause vasospasm in the coronary arteries.”
The Senior Arbitrator then referred to and quoted passages from Shillingsworth and Nguyen, which I have referred to earlier in this decision, and concluded (at [138]) that it was not clear, on the medical evidence overall, that the central retinal artery occlusion suffered by Ms Donovan resulted from vasospasm. He then repeated, in summary, the views of Professor Mitchell and Dr Delaney that have been noted above.
The Senior Arbitrator also noted that, in answering the question of whether or not vasospasm in the eye could be caused by a psychiatric injury, Dr Jungfer did not analyse whether the Ms Donovan’s central retinal artery occlusion resulted from vasospasm, as opposed to some other cause, but expressed the view that “vasospasm … resulted in the occlusion”. In other words, Dr Jungfer assumed that vasospasm, as opposed to some other cause, resulted in the occlusion. This was an additional, and proper, reason why the Senior Arbitrator did not accept Dr Jungfer’s evidence.
The submission that, at [142], the Senior Arbitrator suggested that Professor Mitchell altered his opinion is plainly incorrect. The Senior Arbitrator said, at [142]:
“Overall, I prefer the opinion of Professor Mitchell. He is highly qualified in the relevant area, being a professor in ophthalmology. He saw [Ms Donovan] on multiple occasions in his role as a treating specialist. He was aware of the various investigations that were carried out which may be relevant to the causation issue. His opinion is that contained in his report dated 1 August 2011. This post-dated any suggested earlier expressions of opinion to the contrary. It represents his considered opinion.”
It is correct, as the Senior Arbitrator acknowledged, that Professor Mitchell thought that vasospasm was “one possibility”. However, in light of his ultimate conclusion, namely, that he did not believe Ms Donovan’s eye condition was related to her employment, the Senior Arbitrator was justified in relying on that evidence to support his conclusion that Ms Donovan had not made out her case. In other words, Professor Mitchell did not support Ms Donovan’s claim, however it was argued.
Given Professor Mitchell’s qualifications as an ophthalmologist, given that he saw Ms Donovan on several occasions as her treating specialist, given that he was aware of the various investigations conducted into the possible cause of the condition, the Senior Arbitrator’s reliance on his evidence disclosed no error. The submission that there was no basis for accepting Professor Mitchell’s opinion over the evidence of Dr Jungfer is unsustainable and is rejected.

GROUND THREE – WEIGHT OF DR JUNGFER’S EVIDENCE

Submissions

Mr Weller submitted that the Senior Arbitrator erred in finding that the weight given to Dr Jungfer’s opinion should be discounted because she did not have the benefit of “background material”. Mr Weller made four points on this issue:
(a)     Dr Jungfer did have the benefit of “background material” and that she referred to it in her report of 22 August 2014;
(b)     the Senior Arbitrator gave no reasons as to how the background material could have impacted on Dr Jungfer’s opinion;
(c)     the Senior Arbitrator erred in finding that the weight to be given to Dr Jungfer’s opinion should be discounted because she did not have the benefit of seeing the opinions from other specialists who had commented on causation and he gave no reason why, in the absence of those opinions, her opinion could or should be affected, and
(d)     Dr Jungfer had the benefit of a report on causation from the treating gastroenterologist, Dr Duggins, who said that the occlusion was a retinal vascular complication of Ms Donovan’s inflammatory bowel disease. Dr Jungfer said that stress can result in an exacerbation of inflammatory bowel disease.

Discussion and findings

This ground of appeal relates to the Senior Arbitrator’s statements at [109] and [141]. He said:
“109. De [sic] Jungfer’s second report is dated 22 August 2014. There was a history that [Ms Donovan] ‘became aware particularly in 2008 of difficulties with regard to her mental state’. ‘[T]he bullying continued.’ The history said that as time progressed [Ms Donovan] ‘became physically more unwell, she described the development of palpitations, chest pain and was sent off for a halter monitor in early 2008’. ‘In the middle of 2009 she experienced fluctuating vision in her eye…’. On 9 November 2009 the applicant woke with a loss of vision in her left eye.
…
141. There is a lengthy and involved relevant treating medical history in the matter. It appears that Dr Jungfer examined [Ms Donovan] on 19 August 2014, and prepared her report dated 22 August 2014, without the benefit of this background material (see [109] above). This affects the weight to be given to her opinion. Her report does not suggest she had the benefit of seeing opinions from other specialists who had commented on causation in the matter.”
Mr Weller’s submission that Dr Jungfer had the benefit of the “background material”, and that she referred to it at paragraph 6.1 of her report of 22 August 2014, is incorrect. The following is recorded at paragraph 6.1 of Dr Jungfer’s August 2014 report:
“No documents were provided for the clinical assessment. Ms Donovan did have a large file of documents which I did not see as appropriate to copy however she did show me a letter from Dr Dugan [sic] who was of the opinion that the retinal vascular problem was possibly secondary to her ulcerative colitis. I also briefly reviewed the general practitioners [sic] records to note the history of the emergence of anxiety particularly in 2007 and worsening in 2008 and 2009.”
The “background material” to which the Senior Arbitrator referred was the “lengthy and involved relevant treating medical history in the matter”, which he summarised under “The Treating Medical History” at [69]–[92] of the decision. Dr Jungfer did not have that history properly before her and the Senior Arbitrator was entitled to note that fact. That history was significant. It demonstrated the only reference to Ms Donovan suffering an exacerbation of her ulcerative colitis was a note by Dr Owen on 1 October 2008. However, Dr Owen added, on 22 October 2008, that the ulcerative colitis symptoms were “settling”.
On 22 June 2009, Dr Wong, a general practitioner at the same practice as Dr Owen, recorded a complaint of abdominal pain for in excess of six weeks and a history of ulcerative colitis but, significantly, made no mention of any exacerbation or active symptoms relating to that condition. He referred Ms Donovan to Associate Professor Keegan, a specialist gastroenterologist.
On 5 August 2009, Associate Professor Keegan reported to Dr Wong that Ms Donovan “came along to organise [a] surveillance colonoscopy”, noting that she had been diagnosed with ulcerative colitis in the mid-1990s, which required two admissions to hospital. In addition, she had a history of colonic adenoma. He took a history that Ms Donovan’s “GI symptoms are episodic”. When it flares, she uses Dipentum for several months. That had occurred about three or four times since 2005. At the time of examination, she had “normal stool with no constipation or diarrhoea”. At times she had bloating and there “can be epigastric discomfort”, which she thought might be related to an ovarian problem. Her weight had varied, she felt “as a consequence of stress and a gynaecological illness”. Physical examination was “unremarkable”.
On 23 October 2009, Associate Professor Keegan again reported to Dr Wong. He referred to the results of a colonoscopy on 8 October 2009 (four weeks before the loss of vision on 9 November 2009), which showed “no obvious abnormality”. Her biopsies were “fine” apart from one specimen, among 23, which showed “local active colitis”, which he said was “unlikely to be significant”. Importantly, in the context of Ms Donovan’s claim, he made no mention of any exacerbation of her ulcerative colitis because of stress, though he did note that, following the procedure, Ms Donovan had abdominal pain and discomfort but that “seemed to have settled well”. He said that “[w]ith this clear surveillance procedure she should consider having another [colonoscopy] in about 2 years[’] time”.
On 11 December 2009, about four weeks after the loss of vision on 9 November 2009, Dr Duggins reported that Ms Donovan’s ulcerative colitis had “previously been very severe, however she has been stable in recent months” (emphasis added). Dr Baker, a treating psychiatrist, recorded on 10 December 2010 that there was “one episode of ulcerative colitis about 7 years ago”.
Having first seen Ms Donovan on 20 July 2011, Dr Jungfer reported on 25 July 2011 that there had been no episodes of ulcerative colitis since 2003, though Ms Donovan required colonoscopies every two years. She specifically noted that the “ulcerative colitis has not been exacerbated in association with work related stress” (emphasis added). (Dr Jungfer took a different history when she saw Ms Donovan on 19 August 2014 – see [73] below).
On 31 October 2011, Dr Delaney took a history that Ms Donovan “had suffered from ulcerative colitis in the past, but had not had any problems for some time”.
In her report of 22 August 2014, prepared after her examination on 19 August 2014, Dr Jungfer said that Ms Donovan “describe[d] a mild exacerbation [of her ulcerative colitis] associated with the bullying and placement at the school in 2009”. As the Senior Arbitrator noted, that history was not consistent with the medical records in evidence and to which the Senior Arbitrator referred in detail. Nor was it consistent with the histories recorded by Dr Delaney and Dr Jungfer (at her first examination), which were recorded in a medicolegal context.
After summarising the above evidence (from [149] to [153]), and noting that there was no statement in evidence from Ms Donovan, the Senior Arbitrator said that he was dependent on the medical histories and that there was no explanation for the inconsistent histories recorded by Dr Jungfer. He concluded (at [155]) that he was not persuaded that Ms Donovan suffered any exacerbation of her ulcerative colitis after 22 October 2008. Therefore, the allegation that she suffered a s 4(b)(ii) injury failed. This finding was consistent with the evidence and involved no error.
The above analysis demonstrates that Dr Jungfer’s history that Ms Donovan suffered an exacerbation of her ulcerative colitis in 2009, which she felt “may well have been a sufficiently triggering event to increase her vulnerability to vasospasm and to central nervous system ischemia”, was incorrect. This undermined Dr Jungfer’s evidence and was something the Senior Arbitrator was entitled to consider and did consider. Had Dr Jungfer had proper access to the “background material” she would have noted, as the Senior Arbitrator did, that the only reference to an exacerbation of Ms Donovan’s ulcerative colitis was the one note by Dr Owen on 1 October 2008, which was “settling” by 22 October 2008.
Mr Weller’s next point – that the Senior Arbitrator erred in finding that weight to be given to Dr Jungfer’s opinion should be discounted because she did not have the benefit of seeing the opinions from the other specialists who had commented on causation – is without substance. The Senior Arbitrator (correctly) observed (at [141]) that Dr Jungfer’s report did not suggest she had the benefit of seeing the opinions from other specialists who had commented on causation. He made no further comment or finding on that issue.
It is patently obvious that this point carried little weight in the Senior Arbitrator’s overall assessment of the claim. It was certainly not determinative. However, it was an observation he was entitled to make because, in the assessment of any medical dispute, it will often be relevant to know if, in expressing an opinion, an expert has taken into account any competing or contrary views. That is especially so if, as in the present case, the competing views have been expressed by well qualified treating and qualified specialists. In reaching the views she expressed in her second report, Dr Jungfer did not have regard to the views of Professor Mitchell or Dr Delaney. The Senior Arbitrator was entitled to note that fact in his assessment of the evidence.
Mr Weller’s last point under this heading – that Dr Jungfer had the benefit of a report on causation from Dr Duggins, who said that the occlusion was a retinal vascular complication of Ms Donovan’s inflammatory bowel disease – does not establish error by the Senior Arbitrator. The Senior Arbitrator was well aware of the evidence from Dr Duggins and referred to it at [31], [32], [88], [90], [91] and [151].
It is correct that Dr Duggins considered Ms Donovan’s left sided central retinal artery occlusion in November 2009 to be “a retinal vascular complication of her inflammatory bowel disease, now in remission”. However, that opinion, on its own, does not advance Ms Donovan’s case, which was based on an exacerbation of the inflammatory bowel disease because of stress at work in 2009. The evidence does not support a conclusion that such an exacerbation occurred in 2009. In addition, Mr Weller’s submission that Dr Jungfer said that stress can result in an exacerbation of inflammatory bowel disease does not establish error by the Senior Arbitrator.

Dr Jungfer said that ulcerative colitis:
“can be implicated in vascular incidents in the central nervous system. These are more likely to occur if the ulcerative colitis is active and evidence is available in the literature that activity of ulcerative colitis is directly influenced by stress, that is stress can induce episodes and relapses of ulcerative colitis. Therefore her exacerbation of her ulcerative colitis in 2009 although mild may well have been a sufficiently triggering event to increase her vulnerability to vasospasm and to central nervous system ischemia. There is also a body of literature that demonstrate that vasospasm may occur in response to stress in other arterial systems of the body including that of the coronary arties [sic] and there is no reason to feel that this would not occur in the central nervous system but due to ethical and research concerns it is unable to be accurately studies [sic]. Therefore on the balance of probabilities there is a likelihood that Ms Donovan’s vasospasm that resulted in the occlusion of her retinal artery may in part been caused by her ulcerative colitis and activity of the disease which was triggered by the stress associated with her workplace. Pure vasospasm secondary to stress may also be a contributing factor or the causative factor for her vascular injury.” (emphasis added)
As previously noted, the history of an exacerbation of ulcerative colitis in 2009 was not consistent with the medical records, or Dr Jungfer’s first history recorded in 2011. Thus, the underlying premise of Dr Jungfer’s opinion was not correct. It follows that, for this reason alone, the Senior Arbitrator was well justified in not accepting her evidence.
Moreover, even if one ignores the incorrect history regarding the alleged exacerbation of the ulcerative colitis, the highlighted parts of the above passage from Dr Jungfer’s report demonstrate that Dr Jungfer’s opinion raised no more than a possible connection between stress and the occlusion. In the circumstances, as Mr Halligan submitted, that was not sufficient to discharge the onus of proof.

GROUNDS FOUR AND FIVE – DR JUNGFER’S EVIDENCE

Submissions

Mr Weller submitted that the Senior Arbitrator erred in failing to give proper weight to the uncontested and unchallenged opinion of Dr Jungfer that severe stress caused a cerebrovascular accident resulting in the loss of vision. He said that the respondent not only failed to cross-examine Dr Jungfer, the only psychiatric opinion proffered in response was that of Dr Synnott. Dr Synnott diagnosed Ms Donovan to have a generalised anxiety disorder with panic attacks. He did not reject Dr Jungfer’s opinion and did not offer any alternative opinion regarding Ms Donovan’s loss of sight.
Mr Weller said that the Senior Arbitrator made no finding as to whether or not it (the occlusion) may have been due to a stroke. He said that this “flies in the face of the uncontested evidence of Dr Jungfer that as a consequence of the severe stress [Ms Donovan] experienced a cerebrovascular (stroke) accident that resulted in the loss of vision”.
Mr Weller contended that the Senior Arbitrator was “clearly wrong” when he said (at [107]) that Dr Jungfer did not, in her first report, proffer any opinion on the cause of the visual problem. He asserted that she gave “an opinion at paragraph 10.2 that severe stress caused the cerebrovascular accident that resulted in the loss of vision”.
Mr Weller submitted that the Senior Arbitrator erred in finding (at [145]) that Dr Jungfer, when initially asked to comment on the causation issue, indicated that she did not know. He contended that Dr Jungfer simply commented that the issue is “not straight forward”.
The Senior Arbitrator further erred (also at [145]), so it was argued, by suggesting that Dr Jungfer gave an opinion “notwithstanding the absence of studies in the literature”. Mr Weller contended that a reading of Dr Jungfer’s report “suggests the contrary” and he referred to what he said were “contrary findings” by the Senior Arbitrator at [115] and [116]. He said the findings at [145] were inconsistent with the Senior Arbitrator’s previous findings at [133].

Discussion and findings

I have previously rejected the submission that Dr Jungfer’s evidence was uncontested (see [50] above). As the Commission has attempted to explain in dozens of cases, lack of cross-examination does not mean that the relevant evidence is uncontested. Moreover, a court or tribunal is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence (Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [110]–[112]; M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 [21]; Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 848–849; and Gaunt v Hooft [2009] WASC 36 [41]–[42]). (See also the general discussion about cross-examination in the Commission in New South Wales Police Force v Winter [2011] NSWCA 330 from [81].)
Dr Jungfer’s evidence was contradicted by a credible body of substantial evidence and, in addition, was defective in the several key respects identified above. The Senior Arbitrator was not obliged to accept it and did not err in not accepting it. It makes no difference that Dr Synnott did not express an opinion on this issue. Professor Mitchell and Dr Delaney did not support Ms Donovan’s case and, as previously explained, the Senior Arbitrator was entitled to prefer their opinions over those of Dr Jungfer.
The relevance of the submission that the Senior Arbitrator made no finding as to whether or not the occlusion may have been due to a stroke is unclear. It is correct that the Senior Arbitrator made no express finding on that point. He did not have to. Dr Jungfer did not use that terminology. She referred to Ms Donovan having experienced a “cerebrovascular accident that has resulted in the loss of vision of her left eye”.
It was Mr Weller who, in his letter of 4 July 2014 to Dr Jungfer, said that he understood that vasospasm is a stroke. That assertion was incorrect. Vasospasm is a spasm of a blood vessel. The Senior Arbitrator dealt with the various arguments presented at the arbitration. Regardless of whether vasospasm is a stroke or something else, for reasons given, which demonstrate no error, the Senior Arbitrator did not accept that Ms Donovan’s loss of vision was caused by that condition.
In addition, the Senior Arbitrator referred (at [91]) to the MRI investigations of November 2010, two weeks after the loss of vision, which showed “no acute ischaemic stroke” and no areas of old ischaemic stroke on “FLAIR” imaging, but did show an area of old encephalomalacia in the left frontal lobe that was unchanged compared to the MRI in 2009. Thus, there was no evidence of a stroke and it was not necessary for the Senior Arbitrator to deal further with that matter.
The submission that the absence of a finding on whether Ms Donovan suffered a stroke “flies in the face of the uncontested evidence of Dr Jungfer that as a consequence of the severe stress [Ms Donovan] experienced a cerebrovascular (stroke) accident that resulted in the loss of vision” involves a false assumption that that was what Dr Jungfer said. In fact, in her first report Dr Jungfer recorded a history that in “2009 [Ms Donovan] had a cerebrovascular accident which she has been advised has been secondary to vasospasm due to stress, probably associated with the workplace incident”. Thus, in making this statement, Dr Jungfer was recording Ms Donovan’s history, not expressing an opinion on causation.
Mr Weller’s assertion that Dr Jungfer expressed the opinion (at paragraph 10.2 of her first report) “that severe stress caused the cerebrovascular accident that resulted in the loss of vision” (emphasis added) is incorrect. Dr Jungfer said, at paragraph 10.2:
“Ms Donovan, in 2009, in the context of worsening anxiety and severe stress but remaining within the workplace, experienced a cerebrovascular accident that has resulted in the loss of vision of her left eye. It has been suggested to her by her ophthalmologist that the visual loss is due to vasospasm (as no other cause has been found) and that stress could be a possible causative factor of this vasospasm. It is important to note that Ms Donovan does not suffer from migraines and there is no family history of cerebrovascular or vasculitic disorders. Ms Donovan, following the cerebrovascular accident, made a formal complaint regarding the treatment that she had experienced at the school and this complaint process was also found to be highly stressful. Ms Donovan, in 2007, commenced treatment for her anxiety that was caused by the harassment and bullying that she experienced, although the treatment has not been successful and she remains symptomatic.” (emphasis added)
Dr Jungfer went on to describe (at paragraph 10.3) Ms Donovan’s psychological symptoms, which she said were consistent with a generalised anxiety disorder and nocturnal panic attacks. These anxiety conditions arose secondary to the experience of harassment and bullying that occurred within the workplace. At paragraph 10.7, Dr Jungfer said that based on the history provided by Ms Donovan, and when taking into account her background history and the events that occurred at Winmalee High School, it was her opinion that Ms Donovan’s current psychiatric symptoms were solely a consequence of the experience of the harassment and bullying that occurred within the workplace. Dr Jungfer then dealt with “management”, “prognosis” and “work capacity”.
As the Senior Arbitrator stated (at [107]), Dr Jungfer proffered no opinion (in her first report) on the cause of the loss of vision. Mr Weller’s submission to the contrary is plainly wrong.
Mr Weller’s next challenge is to the Senior Arbitrator’s statement (at [145]) that Dr Jungfer, when initially asked to comment on the causation issue, indicated that she did not know. Mr Weller’s assertion that Dr Jungfer merely said that the issue is “not straight forward” is not an accurate summary of the evidence.
The Senior Arbitrator’s reference to Dr Jungfer saying that she did not know the answer to the causation issue comes from Mr Weller’s letter to the doctor dated 4 July 2014, where he wrote:
“I spoke to you recently regarding Mrs Donovan and asked whether a vasospasm in the eye (which I understand is a stroke) can be caused by stress/psychiatric injury.
You were kind enough to say that you did not know the answer and would have to research the issue.
...
I was trying to arrange a refresher appointment for Mrs Donovan. I would be very grateful if you could have your staff, call me in this regard. I would also be grateful if you could provide your advice concerning the above question. I am not sure, I may need to send you more details of the state of health of Mrs Donovan at the time she lost her eye sight.” (emphasis added)
Thus, the Senior Arbitrator was well justified in stating that when initially asked to comment on causation, Dr Jungfer said that she did not know. Dr Jungfer’s statement that the issue was “not straight forward” was made by her in her second report, not her first report. It was only in Dr Jungfer’s second report that, for the first time, she attempted to address the causation issue.
The submission that the Senior Arbitrator erred in saying (at [145]) that Dr Jungfer gave an opinion “notwithstanding the absence of studies in the literature” involves a misreading of the decision and the evidence. The analysis of this point starts at [114] of the decision, where the Senior Arbitrator said:
“114.Dr Jungfer then turned her mind to the potential relationship between stress and vasospasm. She referred to studies dealing with stress induced increase in blood pressure. She referred to research on rats dealing with whether stress could result in a worsening of cerebrovascular spasm. She said:
‘Unfortunately I could find no studies in literature that have correlated cerebrovascular spasm that is spasm of the cerebrovascular system with stress.’”
The passage attributed to Dr Jungfer in the above quote has not been challenged as inaccurate.
The Senior Arbitrator then quoted, at [115], a long passage from Dr Jungfer’s second report dealing with research into stress and the coronary arteries. She said, in summary, that there was clear evidence that “mental stress is an effective inducer of vasospastic angina”. While acknowledging that the cerebrovascular system and the coronary artery system are “distinct vascular system[s]” she speculated that the “fact that the arterial system of the coronary arteries have been clearly shown to experience vasospasm in response to stress would indicate that this is a possible mechanism of pathology that may also occur in the central nervous system” but she was “unlikely to be able to find research to support this distinctly in the cerebral vascular system”. If there were any doubt about it, Dr Jungfer added that there was “no specific literature documenting vasospasm in the central nervous system such as in the retinal artery associated with stress”.
The Senior Arbitrator then quoted, at [116], a further passage from Dr Jungfer’s second report in which the doctor said that Ms Donovan had a number of factors that “may have” contributed to the vasospasm that ultimately led to her loss of vision. Dr Jungfer said that the evidence in the literature was that activity of ulcerative colitis is “directly influenced by stress, that is, stress can induce episodes and relapses of ulcerative colitis”. Therefore, Dr Jungfer said that the exacerbation of Ms Donovan’s ulcerative colitis in 2009, although mild, “may well have been a sufficiently triggering event to increase her vulnerability to vasospasm and to central nervous system ischemia”. (As explained earlier in this decision, the assertion that there was an exacerbation of Ms Donovan’s ulcerative colitis in 2009 was inconsistent with the contemporaneous records.)
Nothing in the passages quoted by the Senior Arbitrator at [115] and [116] is inconsistent with his statement at [145] that Dr Jungfer gave guarded support to a causal connection between stress and vasospasm notwithstanding the absence of studies in the literature supporting the proposition that stress could cause vasospasm in the cerebrovascular system.
Last, there is nothing inconsistent between the Arbitrator’s statements at [145] and those at [133]. At [133], the Senior Arbitrator said:
“In her report dated 22 August 2014 Dr Jungfer said the issue of whether stress can cause vasospasm was ‘not straightforward’. She referred to research which demonstrated a relationship between stress and ‘vasospasm of the coronary arteries’. She frankly stated that she ‘could find no studies in literature that have correlated cerebrovascular spasm that is spasm of the cerebrovascular system with stress’. The doctor postulated that as stress was known to cause vasospasm in coronary arteries, ‘this is a possible mechanism of pathology that may also occur in the central nervous system’.”
This passage was completely consistent with Dr Jungfer’s evidence. Mr Weller’s submissions have overlooked the difference between research suggesting a relationship between “vasospasm of the coronary arteries”, on the one hand, and the absence of studies suggesting a correlation between cerebrovascular spasm and stress, on the other.

GROUND SIX – FLARE UP OF ULCERATIVE COLITIS

Submissions

Mr Weller submitted that the evidence established that Ms Donovan suffered an exacerbation or “flare up” of her ulcerative colitis, which commenced in 2007 and continued throughout her ordeal until at least 2013 and that the flare up was caused by the stress or psychiatric injury. Mr Weller said that the evidence establishing the exacerbation was marked in bold in Ms Donovan’s chronology attached to the appeal.

Discussion and findings

Mr Weller’s presentation of this point was unhelpful and unsatisfactory. There are dozens of entries in the chronology highlighted in bold. Some relate to Ms Donovan’s abdominal symptoms, many relate to her psychological symptoms and others relate to entries dealing with Dr Owen’s discussions with Professor Mitchell.
The passages marked in bold in the chronology do not establish error by the Senior Arbitrator and do not establish a relevant exacerbation of Ms Donovan’s ulcerative colitis commencing in 2007. The Senior Arbitrator comprehensively reviewed Ms Donovan’s medical history and, for reasons given, was not satisfied that there was an exacerbation of Ms Donovan’s ulcerative colitis in 2009. He concluded, at [155]:
“The records of Dr Owen are consistent with an exacerbation of the symptoms of ulcerative colitis on 1 October 2008, with such symptoms settling by 22 October 2008. I am not persuaded that [Ms Donovan] suffered any exacerbation of her ulcerative colitis thereafter. It follows that the allegation pursuant to section 4(b)(ii) would fail in any event, as the applicant has not, on the probabilities, established that there was an exacerbation of the disease of ulcerative colitis.”
This finding was open on the evidence and nothing in the chronology, the contents of which I have carefully reviewed notwithstanding the unhelpful way Mr Weller presented his submissions on this point, indicates that it was erroneous. The relevant parts of the chronology in bold were either referred to by the Senior Arbitrator (and have been referred to in detail at [67]–[72] above) or are irrelevant to the claim.
The following entries in bold in the chronology, which relate to Ms Donovan’s abdominal symptoms and/or ulcerative colitis up to November 2009 (most entries beyond that date not being relevant to causation of the loss of vision that occurred on 9 November 2009), were not referred to by the Senior Arbitrator:
(a)     12 September 2007, Dr Jonathan Wood, neurologist, recorded that Ms Donovan’s health included ulcerative colitis “which has been under fairly good control recently”;
(b)     5 November 2008, Dr Owen recorded “[a]nxious, nausea and upper abdo discomfort. Confronted principal and head teacher – mediation meeting Wt loss and not eating – may improve now that she has done this. Does not want a work cover [sic] case ove[r] this at the moemt [sic] Medication not appropriate at the moment”;
(c)     12 November 2008, Dr Owen recorded “[a]bdo no better. Only improved on the days she does not need to go th [sic] work Discuss options +++ Trial zoloft 25mg mane”;
(d)     28 November 2008, Dr Owen recorded that Ms Donovan’s weight was still an issue and that she had difficulty eating on work days;
(e)     22 December 2008, Dr Owen recorded “Wt slowly dec [sic] – still difficulty eating enough – try somac daily Has made some moves to change things at work”, and
(f)      10 February 2009, Deborah Wade, psychologist, reported to Dr Owen that Ms Donovan was suffering from significant symptoms of stress and anxiety, precipitated by workplace bullying, and that her emotional and physical health had been compromised by stress.
None of the above entries establishes that the Senior Arbitrator erred in finding that there was no evidence of an exacerbation of Ms Donovan’s ulcerative colitis in 2009. The entries merely confirm that, in late 2008, Ms Donovan experienced upper abdominal discomfort. She was investigated for that discomfort and, as the Senior Arbitrator noted, Associate Professor Keegan referred to the results of a colonoscopy on 8 October 2009 as showing “local active colitis”, which he said was “unlikely to be significant”. This was consistent with Dr Duggins’ evidence on 11 December 2009, also noted by the Senior Arbitrator, that Ms Donovan’s ulcerative colitis had “previously been very severe, however she has been stable in recent months”. Thus, the additional entries relied on in the chronology makes no difference to the outcome and do not establish any relevant error by the Senior Arbitrator.
I have also noted other references in the chronology, also in bold, to entries by Dr Owen suggesting that Professor Mitchell had alluded to the fact that stress can be involved in the process if no other reason is found. The Senior Arbitrator considered the suggestion that that was Professor Mitchell’s view and discounted it in light of the Professor’s considered opinion expressed in his report of 1 August 2011.

Other entries in the chronology that are marked in bold relate to Ms Donovan’s psychological symptoms and do not advance her case on appeal and do not establish relevant error by the Senior Arbitrator.

GROUND EIGHT – ABSENCE OF ANY OTHER KNOWN CAUSE

Submissions

Mr Weller submitted that Ms Donovan having undergone extensive investigations and testing, the only possible finding open to the Senior Arbitrator, on the balance of probabilities, applying McGuiness and Shillingsworth, was that Ms Donovan’s loss of eye sight was caused by the stress/psychological injury as opined by Dr Jungfer. This being exactly what Professor Mitchell said to Ms Donovan, her husband and Dr Owen.

Discussion and findings

This submission is plainly wrong and is rejected.
Ms Donovan carried the onus of proving her case. Somewhat surprisingly, in a case involving loss of vision, she chose to rely on evidence from a qualified psychiatrist, Dr Jungfer. That evidence was deficient in the several respects discussed above and did no more than suggest a possible connection between stress and the relevant occlusion. That evidence fell well short of establishing Ms Donovan’s case on the balance of probabilities. In the circumstances, considering the whole of the evidence, the Senior Arbitrator was not satisfied that Ms Donovan had made out her case. That conclusion was open to him and neither the conclusion nor the Senior Arbitrator’s reasoning involved any error.
After carefully considering the suggestion that Professor Mitchell told Ms Donovan, her husband and Dr Owen that the loss of eye sight was caused by the stress/psychological injury, the Senior Arbitrator concluded, at [126]:
“To the extent that this leaves an inconsistency between what was said by Dr Owen about Professor Mitchell’s opinion [and what Ms Donovan and her husband said about Professor Mitchell’s opinion], and what Professor Mitchell ultimately said about his previously expressed views, it is not an inconsistency which leads to any conclusion adverse to the credit of Professor Mitchell. His views in the circumstances of the current matter are given as a treating specialist medical practitioner and as an expert witness. One would not necessarily expect Professor Mitchell to recall every oral expression of opinion he may have made over the years.”
The Senior Arbitrator added (at [127]) that the summaries expressed by Dr Owen, Ms Donovan and her husband about Professor Mitchell’s opinion were “not Professor Mitchell’s ultimate opinion”. That opinion was expressed with reasonable clarity in his report of 1 August 2011. It does not support Ms Donovan’s position and it was an opinion the Senior Arbitrator was entitled to accept, and did accept, in preference to the unpersuasive evidence from Dr Jungfer.

OTHER MATTERS

To be consistent with Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 and Pt 1 of Sch 1 of the Government Sector Employment Act 2013 (NSW), the name of the respondent has been amended to be Secretary, Department of Education and Communities.

CONCLUSION

This appeal was without merit and had no prospect of success. It was based on a sustained misreading of the evidence and the Senior Arbitrator’s reasons. The Senior Arbitrator’s conclusion that Ms Donovan failed to establish, on the probabilities, that her loss of vision resulted from her psychological injury disclosed no error and was clearly correct.

DECISION

The Senior Arbitrator’s determination of 12 December 2014 is confirmed.

Bill Roche
Deputy President

27 April 2015

I, STEVEN HAMPSON, 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

[2015] NSWWCCPD 27

27 April 2015

Key Legal Topics

Areas of Law

Medical Law

Legal Concepts

Causation

Negligence

Admissibility of Evidence

Expert Evidence

Unjust Enrichment