Evans v Director General of Education and Training
[2005] NSWWCCPD 137
•21 November 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Evans v Director General of Education and Training [2005] NSW WCC PD 137
APPELLANT: Saskia Evans
RESPONDENT: Director General of Education and Training
INSURER:GIO Treasury Managed Fund Workers Compensation
FILE NUMBER: WCC17531-03
DATE OF ARBITRATOR’S DECISION: 16 March 2004
DATE OF APPEAL DECISION: 21 November 2005
SUBJECT MATTER OF DECISION: Sections 4, 9A, 11A(7) of Workers Compensation Act 1987; section 65(1)(c) of Workplace Injury Management and Workers Compensation Act 1998; psychological condition did not arise out of or in the course of employment.
PRESIDENTIAL MEMBER: Acting Deputy President Sassella
HEARING:On the papers
REPRESENTATION: Appellant: MacMahon Associates
Respondent: Moray & Agnew Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order as to costs.
BACKGROUND TO THE APPEAL
On 13 April 2004 Saskia Evans (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 16 March 2004.
The Respondent to the Appeal is the Director General of Education and Training (‘the Respondent Employer’).
The Appellant Worker was born on 14 September 1963. She began working for the Respondent Employer as an art teacher on 1 February 1988. She stopped working in 1990 to attend to child rearing activities and returned to that work early in 1999.
The Appellant Worker claims to have sustained an injury to her neck and left arm and to have suffered from a psychological reaction, psoriasis and tinnitus as a result of injury arising out of or in the course of her employment with the Respondent Employer. She was medically retired in 2000.
The alleged injuries were:
· On 2 July 1999, the last day of term, an unknown person rolled a firecracker into the Appellant Worker’s classroom and the cracker exploded beside her. The shock of this incident is said to have caused her to wrench her neck. The explosion is said to have injured her hearing such that she developed tinnitus. The Appellant Worker also considers that she has suffered psychological injury as a result of this incident.
· On 25 August 1999 the Appellant Worker alleges she saw a student hurdle over a railing outside her classroom and fall on his face, as a result of which she says that she suffered psychological injury.
· In October 1999, the actual date not being specified, the Appellant Worker alleges that she suffered an injury while lifting clay pots. The part of the body injured in this incident was not particularised. However, the allegation was of injury to the neck and left arm as a result of all of these incidents including the lifting incident.
· On 19 May 2000 the Appellant Worker alleges she suffered an injury in the form of a psychological reaction when informed by an employee of GIO that her workers compensation claim was denied.
The Appellant Worker claimed weekly benefits for a worker with three dependent children based on pre-injury earnings of $1,006.06 a week to date and continuing. She also claimed lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) seeking “$7,500 in respect of 10% permanent loss of use of the left arm at or above the elbow” and “$6,000 in respect of 15% permanent of the neck”. She also sought lump sum compensation pursuant to section 67 for pain and suffering and compensation for medical expenses under section 60 of the 1987 Act.
On 24 August 2001 the Appellant Worker applied to the Compensation Court of New South Wales (‘the Court’) for a determination seeking an original award under the 1987 Act. On a date not made clear, but earlier than 25 September 2003, the Appellant Worker settled a common law damages claim in respect of the May 1999 motor vehicle accident. On 4 November 2003, and prior to a determination, the Appellant Worker elected to transfer the matter from the Court to the Commission in accordance with clause 93A of the Workers Compensation (General) Regulation 1995 (repealed).
The Appellant Worker received weekly compensation payments on 23 and 30 July 1999, from 1 to 12 November 1999 and from 29 January 2000 until an uncertain date in May 2000 when liability was denied. There is no record on the Commission’s file of the reasons given for denial of liability, however in the Respondent Employer’s “Answer” filed in the Compensation Court of New South Wales dated 27 September 2001 it is said that liability was denied because:
· The Appellant Worker did not suffer injury as alleged.
· The Appellant Worker was not incapacitated as alleged.
· The Appellant Worker was not incapacitated as a result of an injury arising out of and in the course of her employment with the Respondent Employer.
· Any incapacity which the Appellant Worker might establish was “due to an employment injury with the Respondent [Employer that] ceased on or before the date to which compensation was paid without admission of liability”.
· The medical treatment for which expenses were claimed did not become necessary as a result of an injury arising out of or in the course of the Appellant Worker’s employment with the Respondent Employer.
The parties attended a telephone conference on 4 February 2004 and a Conciliation Conference/Arbitration on 27 February 2004. At that conference the parties resolved the claim for lump sum compensation. The Respondent Employer agreed to pay a total of $5,500. This was made up as follows:
· $3,000 in respect of 4% permanent loss of efficient use of the left arm at or above the elbow; and
· $2,500 in respect of 6.25% permanent impairment of the neck.
The Commission’s Arbitrator who presided at the Conciliation Conference proceeded to make an arbitral determination on the issues where the parties did not reach agreement with the exception of the claim under section 60 which does not appear to have been resolved either by settlement or determination.
The Certificate of Determination, dated 16 March 2004, records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.The Application in respect to the weekly benefits claim is dismissed.
2.The Respondent pay the Applicants’ costs as agreed or assessed (complex matter basis).”
A statement of reasons was attached to the Certificate of Determination. There is no transcript of the conciliation/arbitration. The Commission’s file indicates that there was no recording of the arbitration because the parties’ solicitors “only handed up written submissions and no evidence was taken”. In some matters before the Commission the lack of a transcript has caused problems at this level of appeal. Examples are Intercast & Forge Pty Ltd v Sahi [2004] NSW WCC PD 41; Zamovisa Pty Ltd v Kavanagh [2004] NSW WCC PD 53; Transfield Pty Limited v Bertinato [2004] NSW WCC PD 57; Thompson v Expamet Pty Limited [2005] NSW WCC PD 14; and Fraternity Bowling Club v Sartor [2004] NSW WCC PD 79. In those cases there was an absence of information concerning the Arbitrator’s actual reasons for decision or regarding the evidence received at the arbitration. There is adequate information before me on those matters in this case so no mischief arises from the lack of a transcript.
GROUNDS OF APPEAL
As noted above in paragraph 1, the Appellant Worker filed an Application to Appeal against the Arbitrator’s Decision on 13 April 2004. The grounds for appeal, as paraphrased, are as follows:
1.The Arbitrator failed to properly inquire into the nature of the Appellant Worker’s psychological illness.
2.The Arbitrator failed to give weight to the Respondent Employer’s admission of compensable permanent loss and impairment as evidenced in the agreement signed on 27 February 2004 and referred to above in paragraph 9.
3.The Arbitrator failed to refer to evidence in support of a finding that the Appellant Worker was fit to resume work as an art teacher between 4 March and 20 May 2000.
4.The Arbitrator erred in regarding the Appellant Worker’s recovery of damages in respect of injuries received in a motor vehicle accident on 21 May 1999 as evidence that those injuries were the major cause of the Appellant Worker’s incapacity for work and a concomitant finding that the exploding firecracker incident on 2 July 1999 was not a substantial contributing factor to the Appellant Worker’s injury.
5.The Arbitrator erred in suggesting that the Appellant Worker would have been incapacitated for work in any event even if she had not received the relevant injuries.
6.The Arbitrator erred in requiring an ongoing causal connection between employment and continuing incapacity once a causal connection between employment and injury has been established.
7.The Arbitrator erred in finding that the Respondent Employer was not liable to compensate the Appellant Worker for her total incapacity for work beyond 20 May 2000.
The Respondent Employer’s submission opposes the Appellant Worker’s application on a number of grounds. These are:
· The Appellant Worker suffered from a pre-existing condition affecting her neck.
· The Appellant Worker’s neck was injured in a motor vehicle accident on 21 May 1999 which was not the subject of a workers compensation claim at the time of the arbitration or since.
· The Appellant Worker’s psoriasis is a long standing pre-existing condition.
· The Appellant Worker has a lengthy history of psychological problems.
· Any exacerbation of the Appellant Worker’s psychological condition is attributable to the motor vehicle accident that occurred on 21 May 1999.
· The Appellant Worker’s psychological reaction to the information given to her by GIO in May 2000 was not an injury that arose out of and in the course of the Appellant Worker’s employment.
· The Appellant Worker was not incapacitated for work from 5 March 2000 because she could do her usual work as an art teacher from that date. Her only problem was that she could not drive a long distance to work. From 20 May 2000 the Appellant Worker was totally incapacitated for work but not because of an injury that arose out of and in the course of her employment.
· The Appellant Worker’s employment was not a substantial contributing factor to her psychological condition
LEAVE TO APPEAL
The appeal satisfies the criterion for leave to appeal in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) in that the amount of compensation at issue on the appeal is at least $5,000 and at least 20% of the amount awarded in the decision under appeal.
The appeal satisfies the criterion for leave to appeal in section 352(4) of the 1998 Act in that the Appellant Worker appealed against the Arbitrator’s decision within 28 days of the date of that decision.
Leave to appeal is granted.
ON THE PAPERS REVIEW
The Appellant Worker’s submissions on the Appeal were submitted with her Application and the Respondent Employer’s submissions were filed on 3 May 2004. Both parties agreed that the matter could be decided by the Commission on the papers. In accordance with section 354(6) of the 1998 Act I am satisfied that I have sufficient information to permit me to exercise my functions without a conference or hearing and that this is the appropriate course in the circumstances.
EVIDENCE AND FINDINGS
The power of a Presidential Member of the Commission on Appeal to revoke a decision is exercisable only when it can be demonstrated that the decision of the Arbitrator is affected by a legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172).
The decision of Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7 is also instructive. At paragraph 18 she said:
“Appeal to a Presidential Member is concerned with claimed error, of law or fact, not with the hearing of evidence and determination of the matter at first instance. A Presidential member has a specific and limited role in the review of a decision of the Commission constituted by an Arbitrator. It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesh v Maunz [2000] HCA 40 (3 August 2000)).”
The Respondent Employer made a number of concessions before this matter was arbitrated. These were:
“The Respondent concedes that employment was a substantial contributing factor with respect to the physical injuries alleged on 2 July 1999, 25 August 1999 and October 1999. The Respondent disputes that the incidents of 2 July 1999, 25 August 1999 and October 1999 were a substantial contributing factor to the psychological injury sustained by the Applicant.”
Did the Arbitrator fail to inquire properly into the nature of the Appellant Worker’s alleged psychological injury?
The first appeal ground relates to the Arbitrator’s conclusions regarding the Appellant Worker’s psychological condition. He considered the effect on the Appellant Worker of the GIO’s rejection of her compensation claim. He noted that the unspecified psychological injury appeared to be shock or emotional upset (paragraph 26). He found that any such effect was not an injury within the terms of section 4 of the 1987 Act.
The definition of “injury” in section 4 of the 1987 Act recognises several different types of injury. An injury can consist of:
· “personal injury arising out of or in the course of employment” (section 4(a)); or
· “a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor (section 4(b)(i)), or
· “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration” (section 4(b)(ii)).
Section 4(a) might appear broader than the disease provisions in providing for an injury where the personal injury arises only in the course of the employment, the inference being that there is a need for only a coincidence of time with the injury occurring while the worker is engaged in his or her employment. However, since 12 January 1997 section 9A(1) of the 1987 Act has applied. That provision states that “[n]o compensation is payable … in respect of an injury unless the employment concerned was a substantial contributing factor to the injury”. If the Appellant Worker’s psychological condition was a personal injury arising out of or in the course of her employment, it can be an injury only if her employment was a substantial contributing factor to the condition.
Some of the material before me suggests that the Appellant Worker pleaded the psychological condition allegedly occurring in May 2000 as a frank injury, ie as a personal injury arising out of or in the course of employment. The Amended Application for Determination filed with the Compensation Court of NSW on 25 September 2003 listed the psychological condition with the physical conditions in answer to “How did the injury occur?” The response was “(iv) The applicant suffered injury when she was informed by GIO that her claim was denied.” In describing the “nature of injury” she wrote, “Injury to the neck, left arm and psychological reaction, psoriasis and tinnitus.” (Appellant Worker’s emphasis) There was no attempt to separate out and approach a description of the psychological condition as anything different in kind from the clearly physical conditions.
It is possible that the Appellant Worker was trying to plead the psychological condition as an injury under section 4(b), ie as a condition precipitated by the denial of compensation, or as a psychological condition exacerbated by the denial of compensation. In submissions to the Commission dated 26 February 2004 the Appellant Worker said that “[i]t appears that [she] had undergone a deterioration in her mental state following a telephone conversation with a claims officer from the GIO advising her that there would be a termination of some of her workers compensation benefits in the near future”. This suggests a claim in the form of a deterioration in an existing condition, ie an injury under section 4(b)(ii). Later submissions, following the Arbitrator’s decision, dated 13 April 2004, suggested that the Appellant Worker’s psychological condition was work-related as a result of the firecracker incident on 2 July 1999. This is again consistent with an argument based on a deterioration in the Appellant Worker’s psychological condition in May 2000. In the submissions dated 26 February 2004 the Appellant Worker had alleged psychological effects resulting from the firecracker incident and the injury to the student who was skylarking.
The better view appears to be that the Appellant Worker’s case is based on there being a psychological injury pursuant to section 4(b)(i) or (ii) of the 1987 Act. In any case, regardless of whether a psychological injury was being pleaded under section 4(a) or section 4(b), section 9A(1) of the 1987 Act operated and required that the Appellant Worker’s employment must have been a substantial contributing factor to the injury.
The Arbitrator was not satisfied that any psychological injury occurred in the course of the Appellant Worker’s employment. Rather, it occurred as a result of GIO informing the Appellant Worker of the rejection of her claim. While the Arbitrator might have explained this further, it is clear that he agreed with the submission made to him on behalf of the Respondent Employer. In that submission it was said that, at the time when the GIO told her of the rejection of her claim, she was not performing any employment duties for the Respondent Employer. In addition, it was submitted that any psychological injury sustained by the Appellant Worker at the time did not arise out of her employment as an art teacher. The submission emphasised that the Appellant Worker’s reaction was to a decision made by GIO, a company quite separate from the Respondent Employer. Evidence in support of this submission was that the Appellant Worker had ceased work on 28 January 2000, whereas the discussion with a GIO officer occurred on 19 May 2000. It is also clear that GIO and the Respondent Employer are in no way related entities.
The Arbitrator went on to say that section 65(1)(c) of the 1998 Act requires, in claims for weekly compensation benefits based on incapacity for work, the provision of a medical certificate to accompany the claim. Section 65(1)(c) requires that the certificate must be in or to the effect of the approved form. It may, in the alternative, not be in the approved form but it must contain information that is reasonably sufficient in the circumstances to assist in the determination of the claim. Section 11A(7) of the 1987 Act adds to this that, in claims for weekly payments in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must use, for the purpose of describing the worker’s condition, “accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’”. The Arbitrator saw no evidence before him that this requirement had been met, but he expressly refrained from reaching a conclusion on that aspect (paragraph 35). The Arbitrator seemed confident that he could find that there was no compensable psychological injury on the basis of substantial grounds rather than the technical requirements of provisions in the legislation.
The Arbitrator took the view that the Appellant Worker had not claimed a recognised psychological illness and that this was essential for an injury to exist under section 4 of the 1987 Act. This would appear valid, given section 11A(7) of the 1987 Act.
The Arbitrator proceeded to reinforce his conclusion by stating in paragraph 39 that, on the totality of the evidence, the Appellant Worker’s psychological condition, even if able to be construed as an injury under section 4 of the 1987 Act, arose from circumstances and events predating the incidents relied on above in paragraph 5 of this decision. He considered that none of these incidents was a substantial contributing factor to any alleged psychological reaction of the Appellant Worker. He cited a lengthy list of medical reports and records from the documentary evidence which he considered confirmed that, on balance, the Appellant Worker had a long history of psychological problems and that the acute stages of her psychological illness were not coincident with events in her employment.
That material included a report by Dr R D Moorthy, the Appellant Worker’s treating psychiatrist, who wrote on 17 April 2001 that he believed that the Appellant Worker had suffered from psychosis for many years and that the motor vehicle accident on 21 May 1999 had precipitated a depressive episode over and above the Appellant Worker’s pre-existing psychosis. Dr Moorthy stated that the injuries she sustained in her motor vehicle accident (in May 1999) “and subsequent incident in school” (ie the firecracker incident) precipitated a “depressive episode which [she] did not suffer from before”. He concluded by stating that the onset of depression as an illness in the background of an underlying chronic psychosis was a new phenomenon which could be attributed to the two instances (ie the motor vehicle accident and the firecracker incident) mentioned earlier. This opinion suggests that there may be an injury under section 4(b)(ii) of the 1987 if the cracker incident can be said to have been a substantial contributing factor to the exacerbation of the psychological injury, a possibility not considered by the Arbitrator.
Dr Andrew Robertson, another treating psychiatrist, also wrote on 29 July 2002 that the original psychological illness, post-traumatic stress disorder, was undoubtedly the result of the motor vehicle accident on 21 May 1999. The Arbitrator did not quote from other parts of that report where Dr Robertson noted that the fact that the Appellant Worker’s children were in the car when the collision occurred, that she was terrified when she saw that the accident was going to occur, that after the accident she had neck pain and was in shock, and that she was amnesiac for some of the events afterwards. The Arbitrator did not record that Dr Robertson said he considered it likely that the Appellant Worker was in a dissociative state, that later she had sleep disturbance, flashbacks, phobic anxiety when travelling by car and avoidance of recall. Dr Robertson further wrote that he saw these symptoms as typical of post-traumatic stress disorder. The doctor also said that the post-traumatic stress disorder was exacerbated by the firecracker incident and that her depressive symptoms then began to appear. The Arbitrator did not refer to this last point.
Dr Indran N Rajendram, the Appellant Worker’s general practitioner (‘GP’), noted in his clinical records that the Appellant Worker saw him on 4 and 10 March 1989 concerning symptoms of depression.
The records of the Canterbury Community Health Centre, which the Appellant Worker attended from 24 May 2000 until 26 November 2002, showed the following:
· The Appellant Worker was deteriorating progressively in a psychological sense from when her brother committed suicide in July 1998.
· The Appellant Worker’s husband was quoted on 24 May 2000 in a telephone conversation with a hospital employee as stating that the Appellant Worker had gone “down hill” progressively since the death of her brother. He referred to the May 1999 motor vehicle accident but did not explicitly relate that to psychological problems. He did, however, stress the advice from GIO stating that the compensation payments would cease. He said this caused “immense anxiety and agitation” and that she had “become quite preoccupied and paranoid re GIO”. He said that the Appellant Worker had been doing “odd and irrational things” such as trying to telephone her GP at 2.00 am. He further said that she had become “very fearful and agitated in cars”, particularly the car in which she had had the motor vehicle accident in May 1999.
· On the same day the notes record that the Appellant Worker, also in the telephone conversation with a hospital employee, “admit[ted] to not being able to cope since her car accident”. She also said that a major part of her anxieties was related to whether she could cope with teaching.
On 25 May 2000 the Appellant Worker was admitted to Rozelle Hospital. It seems she was an inpatient until about 5 June 2000. The notes from her admission interview identified as psychological stressors the upcoming anniversary of her brother’s death two years earlier, the anniversary of the May 1999 motor vehicle accident and the upcoming loss of her workers compensation payments from GIO. The Appellant Worker’s husband was quoted on the same day as referring to the brother’s death, the motor vehicle accident, the firecracker incident and the GIO telephone call and letter as the stressors. Notes from that date also quoted the Appellant Worker as saying that she had last been well 14 years earlier, before her brother was diagnosed with schizophrenia. Since then she had been anxious and worried.
The notes from a consultation in Rozelle Hospital on 2 June 2000 refer to a number of issues causing the Appellant Worker stress. These were the motor vehicle accident in May 1999, the firecracker incident and the incident where the student fell over a rail onto his face. The Appellant Worker described this as extremely stressful and she took a week off work. She said that she was prescribed Zoloft and was referred to a Department of Education counsellor in Penrith who advised her to cease the Zoloft. Both the Appellant Worker and her husband described the “final trigger” to the Appellant Worker’s current difficulties as a letter she received from GIO following a phone call she had made to GIO. The letter stated that from May 2000 GIO would no longer be paying the Appellant Worker’s medical expenses. The letter arrived on a Friday [the date seems 19 May 2000]. The Appellant Worker’s mental condition deteriorated over the weekend. She saw her GP on the next Monday [the date seems 22 May 2000] and was prescribed Aropax. Dr Rajendram’s clinical notes are in accord on this point. She described two previous occasions when she was depressed. One was following the birth of her first child in Tonga and the other was when she was looking after three children aged under five years [which must have been in 1996, her children having been born in 1991, 1993 and 1996]. She said also that she had felt very emotional from when her brother first became ill with schizophrenia 15 years before.
In the context of reference to the student fall, I note that the GP’s records show that he saw the Appellant Worker on 26 August 1999 where the student fall incident was mentioned. These notes do not state that he prescribed any medication and there is nothing in the notes or the medical certificates suggesting time off work associated with this occurrence. She did have time off work, however, on 23 – 25 July 1999 and on 30 July 1999, according to the medical certificates. The GP’s notes also indicated he prescribed Zoloft on 9 August 1999.
There was also a report by Dr Derek Lovell, a psychiatrist who examined the Appellant Worker at the request of NRMA Insurance Limited (Compulsory Third Party insurers involved because of the motor vehicle accident on 21 May 1999), in a report dated 4 April 2002, noted that the Appellant Worker sought psychological treatment about 20 years before when her brother was diagnosed with schizophrenia. I note also that in that report, in the history recounted by Dr Lovell, there is mention of the firecracker incident and of the telephone conversation with the GIO employee. However, there is no reference to the student who fell or to the lifting of the clay pots. There was also no reference to any psychological effects from any incident other than the motor vehicle accident and the telephone conversation with the GIO staff member. Dr Lovell noted also that “[s]he denied any other psychological symptoms”.
Dr Marilyn Moore, a psychiatrist who examined the Appellant Worker at the request of the Respondent Employer’s solicitors, was quoted by the Arbitrator as stating on 1 March 2002 that it seemed unlikely that the motor vehicle accident and cracker exploding would have precipitated a psychotic illness in someone who is not significantly predisposed to the development of such an illness. The Arbitrator, however, did not refer to some other pertinent comments by Dr Moore. Dr Moore diagnosed the Appellant Worker as suffering from the residual symptoms of major depressive disorder. The causes were “most likely this woman had an underlying predisposition to develop a psychotic illness and that her involvement in the motor vehicle accident and the cracker incident at work merely exacerbated an underlying major psychiatric illness.” As was the case regarding some of Dr Moorthy’s comments discussed above in paragraph 32, this opinion suggests that there may be an injury under section 4(b)(ii) of the 1987 if the cracker incident can be said to have been a substantial contributing factor to the exacerbation of the psychological injury.
At paragraph 40 the Arbitrator said of the material in paragraphs 32-40, above, that “In summary, the relevant evidence satisfies me that the Applicant had a well established psychological illness before the first incident (firecracker incident) occurred on 2 July 1999.” I reiterate that the Arbitrator did not appear to consider that this evidence may support a finding that there was an exacerbation of an underlying disease as a result of the firecracker incident and this would be compensable.
The Appellant Worker’s response to this material in her submissions suggested that the Arbitrator failed to consider the evidence and come to a determination as to the extent of any contribution of the work events to that medical condition. She argued that he made a decision on her psychological condition on the basis of the vague description given to that condition in the second application to the Court (discussed above in paragraph 22). The correct analysis, in the Appellant Worker’s view, would have been to note that she was first placed on anti-depressant medication after the firecracker incident on 2 July 1999. Her case was that the psychological injury was due to a combination of stress in the form of work incidents and the fact that these occurred in the context of her prior vulnerability to psychological illness and her reduced physical condition resulting from neck injuries occurring in the course of her employment. She submitted that, “by Christmas 2000” [this must be Christmas 1999 given the history of her compensation payments], her physical condition stemming from neck injuries occurring in the course of her employment were such that she was unfit for work and was paid weekly compensation until May 2000 when liability was declined and compensation payments ceased. The Appellant Worker concluded in respect of the psychological issue by stating that there was nothing vague about the development of her psychological disability and that there was a clear causal connection between the injuries pleaded and her incapacity for work.
The documentary evidence does not fully support these submissions. The notes of Dr Rajendram, the Appellant Worker’s GP, show that on 10 March 1999 she was experiencing stresses at home. On 24 and 25 May 1999 she complained of anxiety to her GP as a result of the non-compensable motor vehicle accident that occurred on 21 May 1999. The GP’s notes record a visit on 2 July 1999, the date of the firecracker incident. However, she complained only of physical symptoms, ringing in the ears, headache and neck pain. No anti-depressant medication was prescribed. She saw the GP next on 9 July 1999. The notes make no mention of anxiety, depression or any prescribed anti-depressants. The same applies to a visit she made to the GP on 23 July 1999. It is only on 30 July 1999 that the GP records in his notes fears, anxiety and depression. He prescribes Aropax. Zoloft is later prescribed on 9 August 1999.
The incident involving the student who leapt over a railing and fell on his face is mentioned in the GP’s notes on 26 August 1999, the incident having occurred on the previous day. The doctor recorded that the children were blaming the Appellant Worker for the accident. He went on to record that the Appellant Worker was having marital problems and he was referring her to a marriage counsellor. There is a later reference to a prescription for Zoloft early in September 1999 and the comment that the Appellant Worker was able to control her feelings better. She saw the GP six more times before the end of 1999 and there was no further reference to anxiety or depression. It is conceivable that the Appellant Worker’s Zoloft prescription was sufficient for her needs from 9 August 1999 until the end of 1999. It was during this period that the injury involving the lifting of the clay pots occurred. There is nothing in the documents before me that expressly suggests that that event contributed to any psychological injury. The GP’s notes do not refer to a visit that followed that incident. That event was not mentioned in the Canterbury Health Centre or Rozelle Hospital notes.
Dr Rajendram wrote a full report on 16 February 2003 which was largely consistent with the material in paragraphs 43 and 44 above. He did, however, say that the Appellant Worker’s mental and physical symptoms worsened after the July 1999 firecracker explosion. If he meant that this occurred as an immediate result of the explosion then the documentary evidence is at odds with that assessment. As noted above in paragraph 43, it was only on 30 July 1999 that psychological symptoms emerged. That was four weeks after the event. The GP’s medical certificates issued between 29 May 1999 and 19 June 2000 make no mention of any psychological condition. The first medical certificate referring to depression was dated 16 May 2001.
In addition to the psychiatric specialists, the other specialists’ evidence does not greatly assist the Appellant Worker. She saw Dr Stephen Rabone, an occupational physician at the request of GIO, who reported on 1 December 1999. The Appellant Worker gave no history of psychological symptoms. At the request of the Respondent Employer she also saw Dr Tim Anderson, an occupational physician who reported on 30 October 2001 that she told him that her “major depressive disorder” began in May 2000. This postdates the events at work by 10 months.
Dr Moorthy, the Appellant Worker’s treating psychiatrist, saw her for the first time on 23 August 2000. He accepted the Appellant Worker’s history attributing her “depressive episode”, as Dr Moorthy described it, to the motor vehicle accident in May 1999 and the subsequent firecracker incident. Later, on 18 October 2003, Dr Moorthy wrote that he regarded the firecracker incident as a substantial contributing factor to the Appellant Worker’s condition.
As already noted above in paragraph 40, Dr Marilyn Moore saw the Appellant Worker on 26 February 2002 and wrote a report dated 1 March 2002. Relying on the history the Appellant Worker gave her and on earlier medical reports, her opinion was that the Appellant Worker most likely had an underlying predisposition to developing a psychotic illness and that her involvement in the May 1999 motor vehicle accident and the firecracker incident had exacerbated the underlying illness.
At the request of NRMA Insurance Limited, and in connection with the motor vehicle accident that occurred in May 1999, the Appellant Worker also saw Dr Derek Lovell, psychiatrist, on 3 April 2002. In his medico-legal report dated 4 April 2002 he concluded that a schizophrenic illness was the most likely diagnosis. He saw it as a consequence of the motor vehicle accident in May 1999. On 10 September 2002 he wrote a second report without re-examining the Appellant Worker. In this report he answered a number of questions with the result that the document does not read entirely consistently. He opined that the suicide of the Appellant Worker’s brother on 24 July 1998 was the cause of the Appellant Worker’s first psychological symptoms, although he noted that she first saw a psychiatrist “20 years ago” when her brother was first diagnosed with schizophrenia. He said that the Appellant Worker had a genetic loading towards schizophrenia but that her psychotic symptoms did not occur until May 2000, “10 months after” the May 1999 motor vehicle accident. He saw the more significant events as the exploding firecracker and the denial of her workers compensation claim. He also considered that the Appellant Worker could have developed psychiatric symptoms secondary to her neck pain. He concluded, however, by suggesting that it was likely that the Appellant Worker’s condition would have developed in any event.
On 25 July 2002 the Appellant Worker attended psychiatrist Dr Andrew Robertson who was requested by the Appellant Worker’s solicitor to provide a medico-legal report. Dr Robertson reported on 29 July 2002. He thought the Appellant Worker suffered from post-traumatic stress disorder following the motor vehicle accident in May 1999 and this was exacerbated by the firecracker incident and the depressive symptoms then began to appear. He appeared unaware of the delay following the firecracker incident, a delay of four weeks, which preceded the onset of the later psychological symptoms.
I consider that there were a number of errors of law in the Arbitrator’s consideration of the medical evidence as he presented it in paragraphs 39 and 40 of his reasons for decision. As I indicated above in paragraphs 32, 33, 40 and 41 the Arbitrator quoted a number of medical experts out of context and appeared to regard the presence of a pre-existing psychological condition as decisive in dismissing the Appellant Worker’s claim. He did not consider whether there was evidence of an exacerbation of the pre-existing condition and whether such an exacerbation might itself amount to an injury under section 4(b)(ii) of the 1987 Act.
Despite this, however, I do not regard these errors of law as requiring any interference with the Arbitrator’s decision on this point. This is because the evidence in the contemporaneous records of the GP does not disclose a temporal connection or any other connection between the work events and the onset of, or exacerbation of, the Appellant Worker’s psychological symptoms such as would establish a causal link of the kind required in section 9A(1) of the 1987 Act. There is no evidence in the reports that the psychiatrists who supported the causal link between the psychological condition and the firecracker incident, that they had before them the GP’s notes, or were aware of the lack of contemporaneity between the incident and the onset of the exacerbation. Instead they relied on the Appellant Worker’s history as given to them and/or to other medical practitioners whose reports were provided to them and were listed in their respective reports. These too were medical practitioners who were reliant on the Appellant Worker’s history in forming their opinions.
Did the Arbitrator fail to give adequate weight to the Respondent Employer’s admission of compensable permanent loss and impairment?
The Appellant Worker’s second submission was that the Arbitrator failed to give weight to the Respondent Employer’s admission of compensable permanent loss and impairment as evidenced in the agreement signed on 27 February 2004 and referred to above in paragraph 9. The Respondent Employer responded in its submission that “[t]he admission of a permanent loss and impairment does not of itself automatically confirm incapacity.” Compensation awarded under section 66 of the 1987 Act represents compensation for a permanent loss of function of some bodily thing, or part thereof, and compensation under section 67 for pain and suffering. A worker entitled to such compensation may still have a capacity to work and the loss may not be such as to give rise to an incapacity for work.
In the present case the medical evidence addressing the Appellant Worker’s fitness for work suggested that the Appellant Worker was physically fit for work as an art teacher but not fit to drive substantial distances to attend work. That medical evidence consisted of:
· a report by Dr Stephen Rabone, an occupational physician who reported for GIO on 1 December 1999;
· a report by treating specialist, Dr Martin McGee-Collett, a neurological surgeon, dated 19 September 2000;
· reports dated 30 October 2001 and 27 February 2003 by Dr Tim Anderson, an occupational physician who examined the Appellant Worker at the request of the Respondent Employer; and
· a report dated 3 December 2001 by Dr John Maloney, an orthopaedic surgeon who examined the Appellant Worker at the request of the Respondent Employer, who opined that the Appellant Worker was not fit to return to work, but that this was for psychological reasons.
There were two medical reports that appear to suggest that the Appellant Worker could not return to work as an art teacher for possibly physical reasons. The first was a medico-legal report dated 3 April 2002 by Dr Ivan T Lorentz, a neurologist, requested by the Appellant Worker’s solicitor. In that report Dr Lorentz unfortunately did no more than express this as an opinion, offering no explanation in support of his opinion. The second was a report by Dr Rajendram, the Appellant Worker’s GP, dated 16 February 2003, in which Dr Rajendram said, among other things:
“She had no treatment following her first motor vehicle accident in May 99. Her symptoms got significantly worse after the cracker throwing incident at school both mentally and physically. She had physiotherapy and analgesics as treatments.
She is (sic) presently continues to suffer neck pains and periodic tingling of the left thumb and forearm. She has CT scan evidence of the C6 nerve root being compressed by disc protrusion. She is also on Serzone 200 mg 1 od and Stelazine 2 mg od for a psychotic ailment.
In my opinion her current condition has been contributed to by the two motor vehicle accidents [there was a second motor vehicle accident on 20 June 2001] and the cracker throwing incident at school. The MVA on 21 May 99 could have set the stage as in a minor disc injury and then aggravated in the main by the cracker throwing incident at school.
She is not capable of doing any sort of work outside of home duties.
Her teaching duties has (sic) had a lot to do with her present condition. The stress ensuing from the neck injury triggered a mental illness in her.
Since cessation of work I would say there is little aggravation from her previous teaching duties.”
Dr Rajendram’s opinion was based on the proposition that there was a neck injury in the May 1999 motor vehicle accident which was exacerbated by the firecracker incident in July 1999. He then suggested that this exacerbation caused the psychological condition. He appeared to regard the Appellant Worker’s lack of fitness for work as attributable to her psychological condition which had been exacerbated by her teaching duties. Dr Moorthy, the Appellant Worker’s treating psychiatrist, reported on 17 April 2001 and in May 2001 (date obscured) that the Appellant Worker was unfit for work on psychological grounds. Dr Moore, a psychiatrist who examined the Appellant Worker on behalf of the Respondent Employer, was of a similar opinion in her report dated 1 March 2002. Dr Lovell, a psychiatrist who examined the Appellant Worker on behalf of NRMA Insurance Limited on 4 April 2002 agreed. Dr Robertson, a psychiatrist who examined the Appellant Worker for medico-legal purposes also agreed in his report dated 29 July 2002. For reasons discussed above in paragraph 52, the delay in the onset of the Appellant Worker’s psychological condition after the firecracker incident, it was open to the Arbitrator to find, as he did, that the ongoing psychological condition was not caused by the Appellant Worker’s teaching duties. In his report dated 16 February 2003 Dr Rajendram did not explain the delayed onset of the psychological problems after the firecracker incident. As regards the effect of any physical injury, there was nothing explicit in Dr Rajendram’s report to explain how or why the Appellant Worker’s physical disabilities rendered her teaching duties unsuitable for her.
I have therefore found that there is nothing in the Appellant Worker’s second submission to show that the Arbitrator’s finding on this issue should be disturbed in this case.
Did the Arbitrator fail to refer to evidence in respect of the Appellant Worker’s capacity for work?
The Appellant Worker’s third submission was that the Arbitrator, in finding that the Appellant Worker was fit to resume work as an art teacher between 4 March and 20 May 2000, failed to refer to evidence in support of that finding. As the Respondent Employer indicated in its submissions, the Arbitrator referred to the opinions of Dr McGee-Collett, a treating neurological surgeon who reported on 27 March 2000 and 19 September 2000 and Dr Anderson who reported on 30 October 2001, although the Arbitrator misstated the date of Dr Anderson’s report as being 30 October 2000. Dr McGee-Collett examined the Appellant Worker on 17 March 2000. In the report dated 27 March 2000 the doctor said that the Appellant Worker’s driving capacity was limited to 10 minutes but he did not explicitly comment on general fitness for work. In the report dated 19 September 2000, prepared after seeing the Appellant Worker again on 18 August 2000, the doctor said that the Appellant Worker was fit to resume duty as an art teacher but he did not suggest that this had been the case in March 2000.
Dr Anderson, who examined the Appellant Worker at the Respondent Employer’s request on 29 October 2001, reported on 30 October 2001 stating that the Respondent Worker was physically capable of returning to work requiring caution in lifting or carrying in her duties as a teacher. Dr Anderson’s opinion, recorded so long after the period from 4 March to 30 May 2000, had little, if any relevance. However, in addition to the above, Dr Rajendram’s clinical notes indicated that he issued medical certificates, not held on the Commission’s file, for the period from 28 January to 31 May 2000. The Respondent Employer’s submissions indicated that Dr Rajendram’s certificates, from 4 March to 31 May 2000, certified the Appellant Worker as being only partially incapacitated for work, the restriction being that she was not to be required to drive for more than 10 minutes at a time. The clinical notes recorded that the Appellant Worker saw Dr Rajendram on 27 January, 3 February, 18 February, 3 March, 29 March and 22 May 2000. She reported physical symptoms referable to cervical spine problems on each of these visits.
This submission on behalf of the Appellant Worker was not soundly based. While the Arbitrator may have erred in law in referring to reports by Drs McGee-Collett and Anderson to support him in finding that the Appellant Worker was fit to return to work as an art teacher between 4 March and 20 May 2000, there was evidence in support of such a finding in Dr Rajendram’s contemporaneous medical certificates. It is clear, however, that the Appellant Worker was paid weekly compensation during that period and there was and is no issue about those entitlements before the Commission. Any error of law accordingly had no practical effect.
Did the Arbitrator err regarding findings in relation to the Appellant Worker’s receipt of common law damages?
The fourth of the Appellant Worker’s submissions was that the Arbitrator erred in regarding the Appellant Worker’s recovery of damages in respect of injuries received in a motor vehicle accident on 21 May 1999 as evidence that those injuries were the major cause of the Appellant Worker’s incapacity for work and a concomitant finding that the exploding firecracker incident on 2 July 1999 was not a substantial contributing factor to the Appellant Worker’s injury.
This submission is answered in the Respondent Employer’s submission. The Arbitrator did not rely solely on the recovery of substantial common law damages to find that the major cause of the Appellant Worker’s neck injury was the motor vehicle accident rather than the firecracker. He relied on the broad evidence in the case to make this finding. The Appellant Worker made this submission in an effort to emphasise that the firecracker incident was a substantial contributing factor to her condition. She needed to do this because the Appellant Worker had finalised her rights as against a third party at common law in respect of this injury on an uncertain date between 24 August 2001 (the date on which the Appellant Worker filed an application in the Compensation Court of NSW in this dispute) and 25 September 2003 (the date on which the Appellant Worker filed an amended application in the Compensation Court deleting all reference to the motor vehicle accident occurring in May 1999). The Respondent Employer specifically conceded that the firecracker incident was a substantial contributing factor to the Appellant Worker’s physical condition but not to her psychological condition. The parties are in agreement in relation to the physical condition in that they agree that the firecracker incident was a substantial contributing factor to injury to her neck. This submission disclosed no error of fact, law or discretion in the Arbitrator’s decision.
Did the Arbitrator err in fact, law or discretion in suggesting that the Appellant Worker would have been incapacitated for work even if she had not received the relevant injuries?
The fifth submission, that the Arbitrator erred in suggesting that the Appellant Worker would have been incapacitated for work in any event even if she had not received the relevant injuries, discloses no alleged error of fact, law or discretion. Any such statement by the Arbitrator amounts only to a statement of opinion. It is not a finding as such.
Causal connection
The sixth submission, that the Arbitrator erred in requiring an ongoing causal connection between employment and continuing incapacity once a causal connection between employment and injury has been established, discloses no error of fact, law or discretion. This submission is relevant to the concessions made by the Respondent Employer in paragraph 21 above. The Respondent Employer has accepted liability for the physical injuries resulting from the events that occurred on 2 July 1999, 25 August 1999 and in October 1999. This led to the Respondent Employer accepting liability for total incapacity payments in accordance with medical certificates issued in the relevant period by the GP. The days involved were 23 July 1999, 30 July 1999, 1 to 12 November 1999 and 28 January 2000 to an uncertain date in May 2000. The Appellant Worker’s weekly payments continued until May 2000 when GIO denied ongoing liability.
The Appellant Worker’s submission appears to be that, once liability to pay weekly compensation has been accepted, liability remains for as long as the worker is afflicted by the particular injury in question or any condition that is a sequela of the original injury. The Appellant Worker cited the decision of the Compensation Court of NSW in Rootsey v Tiger Nominees (2002) 23 NSWCCR 725 as authority. The Court held, in relation to section 9A of the 1987 Act, that it is not necessary that employment remain a continuing causal link for so long as an incapacity continues. It was said that, provided there is a direct chain of causation, there is still a link between an event and compensable injury. This is uncontroversial. It does not assist the Appellant Worker in the present case, however, for several reasons. First, it does not apply at all to the psychological condition because that has been found not to be work-related and so does not attract compensation. Second, the physical injuries arising from the events occurring in July, August and October 1999 caused only limited total impairment (as explained above in paragraph 63) and any incapacity flowing from these injuries ceased, probably by 4 March 2000 (see paragraph 58 above) or by late May 2000. I refer to the contemporaneous medical documentation that from late May 2000 emphasises the psychological condition as the primary condition affecting the Appellant Worker. The evidence after the middle of 2000 from specialists expert in the Appellant Worker’s physical injuries suggests significant improvements in her physical health. There were reports charting these improvements from Dr McGee-Collett (27 March 2000, 19 September 2000), Dr Anderson (30 October 2001, 27 February 2003), Dr Maloney (3 December 2001), Dr Mario Benanzio (an orthopaedic surgeon who examined the Appellant Worker at the request of her solicitor on 29 July 2002 and who provided a medico-legal report on 29 August 2002) and Dr Lorentz (28 October 2003).
Total incapacity
The seventh of the Appellant Worker’s submissions was that the Arbitrator erred in finding that the Respondent Employer was not liable to compensate the Appellant Worker for her total incapacity for work beyond 20 May 2000. For reasons already given the Arbitrator’s findings in this respect were justifiable and are supported on the basis of evidence that was available.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
No order as to costs.
Michael Sassella
Acting Deputy President
21 November 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SASSELLA, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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