Fire & Rescue NSW v Hogrefe
[2012] NSWWCCPD 34
•29 June 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Fire & Rescue NSW v Hogrefe [2012] NSWWCCPD 34 | ||||
| APPELLANT: | Fire & Rescue NSW | ||||
| RESPONDENT: | Manfred Hogrefe | ||||
| INSURER: | Employers Mutual Limited - TMF | ||||
| FILE NUMBER: | A1-3119/11 | ||||
| ARBITRATOR: | Mr R Perrignon | ||||
| DATE OF ARBITRATOR’S DECISION: | 22 March 2012 | ||||
| DATE OF APPEAL DECISION: | 29 June 2012 | ||||
| SUBJECT MATTER OF DECISION: | Schedule 6 Pt 18C cl 3 to the Workers Compensation Act 1987; determination of amount by which compensation payable is to be reduced | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Hicksons | |||
| Respondent: | Steve Masselos & Co | ||||
ORDERS MADE ON APPEAL: | 1. The findings and orders made by the Arbitrator in paragraphs 1, 2 and 3 of the Certificate of Determination dated 22 March 2012 are confirmed. 2. The appellant is to pay the worker’s costs of the appeal. | ||||
BACKGROUND
Mr Manfred Hogrefe commenced employment with Fire & Rescue NSW (the appellant) as a firefighter in 1980. He remained so employed until 29 September 2006 following a recommendation by the then Brigade’s Medical Officer, Dr Catherine Field, that he be medically retired.
Mr Hogrefe had received various physical injuries and also had been exposed to a number of very distressing incidents in the course of his employment.
On 25 February 2006, Mr Hogrefe had experienced significant abdominal pain whilst on duty causing him to collapse. He was transferred from his station to Mt Druitt Hospital where he received treatment before discharge on that day. He ceased work and, it seems, was paid provisional weekly compensation for a period before return to suitable duties.
On 20 October 2006, he made a claim for workers compensation benefits. The injuries particularised in that claim were post traumatic stress, anxiety/depression and injuries to right knee and right elbow.
The appellant accepted liability for weekly compensation benefits and such have been paid to date.
In August 2009 Mr Hogrefe’s solicitors forwarded a workers compensation claim form to the appellant’s insurer. That form did not particularise the benefits claimed, however the injury alleged was particularised as “post traumatic stress disorder caused by the nature and conditions of employment (see Annexure 1)”. The annexure contained detail of seven very distressing and traumatic incidents to which Mr Hogrefe had been exposed in the course of his duties.
In correspondence dated 14 October 2009 Mr Hogrefe’s solicitors wrote to the insurer giving notice of a claim for lump sum compensation in respect of 20 per cent whole person impairment resulting from psychological injury together with lump sum compensation in respect of pain and suffering pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act).
Liability for the lump sum claim was declined. That denial of liability was founded upon the provisions of cl 3(2) of Pt 18C to Sch 6 to the 1987 Act.
Mr Hogrefe registered an Application to Resolve a Dispute (the Application) with the Commission in April 2011. Part 4 of the Application nominated 25 February 2006 as being the deemed date of the injury alleged. That injury was described as “psychological injury”. The manner in which the injury was alleged to have occurred was not expressly stated, but reference was made to a statement made by Mr Hogrefe which was annexed to the Application.
The matter came before Arbitrator Perrignon for conciliation and arbitration on 25 October 2011 and was then part heard. The hearing of the matter concluded before the Arbitrator on 23 January 2012 at which time his decision was reserved. A Certificate of Determination was issued on 22 March 2012 in the following terms:
“The Commission determines:
1. Thirty per cent of the applicant’s permanent impairment as a result of psychological injury on 25 February 2006 (deemed date) is due to his exposure to traumata in the employ of the respondent prior to 1 January 2002.
2. Award for the applicant in the sum of $16,100 pursuant to section 66 of the Workers Compensation Act 1987, for psychological injury on 25 February 2006 (deemed date), being the difference between the sum of $23,000 payable in respect of an agreed 17 per cent whole person impairment and thirty percent thereof.
3. The respondent is to pay the applicant’s cost of the proceedings, and I certify the matter as complex and award an uplift of 30 per cent for both parties.
Direction
The parties are directed to file consent orders within 14 days providing for an award pursuant to section 67 of the Workers Compensation Act 1987, in default of which the claim pursuant to section 67 is to be listed for teleconference.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
The issues in dispute raised in the grounds of appeal are whether the Arbitrator erred in the following respects:
(a) failing to find that 100 per cent of Mr Hogrefe’s whole person impairment “was due to [Mr Hogrefe’s] exposure to traumata prior to January 2002”;
(b) finding that 30 per cent of [Mr Hogrefe’s] permanent impairment was “due to his exposure of [sic] traumata prior to 1 January 2002 when [sic] the Arbitrator made no finding that [Mr Hogrefe’s] permanent impairment was due to anything occurring after 1 January 2002”;
(c) failing to find that “[Mr Hogrefe’s] conduct on 25 February 2006 was not capable of being relevant conduct for the purposes of Clause [sic, Part] 18C of Schedule 6 of [sic] the 1987 Act”, and
(d) by “applying a test of whether [Mr Hogrefe’s] psychological injuries ‘were complete’ to assist him in determining whether [Mr Hogrefe’s] psychological injuries were a loss or impairment that were due to something that had occurred to [Mr Hogrefe] after 1 January 2002”.
The grounds as drafted on behalf of the appellant are, in my view, deficient in that there is an absence of precision so far as the identification of suggested error or errors. It is reasonably clear from the submissions which accompany the application concerning this appeal that the primary complaints made concern suggested error of fact on the part of the Arbitrator when addressing the proper application of cl 3(2) of Pt 18C of Sch 6 to the 1987 Act. It is also reasonably clear that the appellant suggests error of law on the part of the Arbitrator in the manner of application of the transitional provisions found in Sch 6 to the facts as found.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Mr Hogrefe has submitted that the appeal may be heard on the papers without there being any formal hearing or conference. The appellant submits that the appeal should not be decided solely on the basis of the Application and the Notice of Opposition which are before the Commission. It is argued that the appeal “involves a close analysis of the evidence” and reference is made to the suggested need to examine the transcript of the proceedings “which ran over more than one day”.
It is to be noted that there is no transcript available of proceedings conducted before the Arbitrator on the first day of hearing, 25 October 2011. There is a transcript (T) of the hearing conducted 23 January 2012. The Arbitrator is recorded in that transcript as acknowledging that the first day’s hearing was not recorded. The Arbitrator also records that on that occasion the submissions of Mr Perry, counsel for Mr Hogrefe, had not concluded. Having regard to those circumstances, and with the agreement of the parties, the Arbitrator stated a summary of his “understanding of [the] case”. Those matters are recorded between T1 and T3. Mr Perry was afforded an opportunity to respond to the Arbitrator’s summary and to complete his submissions. It appears that counsel took the opportunity to reiterate matters earlier argued and to expand on matters earlier raised. I further note that no oral evidence was adduced before the Arbitrator.
Notwithstanding the absence of a transcript of the first day’s hearing, and following a consideration of the matters raised on behalf of the appellant concerning the need for a hearing on this appeal, I have reached the conclusion that there is sufficient material before the Commission to permit conduct of the appeal on the papers, without holding any conference or formal hearing. I have taken into account those matters raised in Practice Directions Nos 1 and 6 and propose to proceed without the conduct of a hearing as sought on behalf of the appellant.
THE ARBITRAL PROCEEDINGS
A number of matters which were the subject of dispute earlier in the proceedings had been resolved by agreement by the time the hearing of the Application was resumed before the Arbitrator on 23 January 2012. Those matters are recorded at T4 where Mr Hogrefe’s counsel indicated the following matters:
(a) it was accepted that Mr Hogrefe had received a psychological injury arising out of or in the course of his employment;
(b) the deemed date of that injury was the date of his medical retirement;
(c) that as a result of the psychological injury Mr Hogrefe has suffered a 17 per cent whole person impairment, and
(d) the appellant was permitted to raise, by way of defence to the claim, an argument that any entitlement to lump sum compensation must be assessed having regard to the operation of the transitional provisions found in Sch 6, in particular cl 3(2) of Pt 18C of that schedule.
It is apparent from the Commission record that there was no dispute between the parties that, should the aforementioned provisions found in Sch 6 become relevant to a determination of entitlement, any reduction of such entitlement would be in respect of compensation payable as is discussed in Fleming v NSW Police Force [2011] NSWWCCPD 33 (per Keating P at [89]).
The Evidence
The documentary evidence admitted before the Arbitrator is noted at [11] of the Statement of Reasons (Reasons). The Arbitrator summarised the evidence between [13] and [55] of Reasons.
Mr Hogrefe’s evidence
There are two written statements made by Mr Hogrefe before the Commission, the first dated 6 September 2010 and the other dated 22 August 2011. Reference is made by Mr Hogrefe in the first of those statements to a list of “horrendous events” which had occurred in the course of his employment and which he had described to Dr Westerink, psychiatrist. It is stated that Mr Hogrefe suffers nightmares and flashbacks which are triggered by relatively insignificant events. Mr Hogrefe also states that he had been “victimised at work by other staff” and that he had “suffered reactive fear and nervousness and depression from the above mentioned events”.
Mr Hogrefe further states that he had become withdrawn and was unable to communicate with his family. It is stated that he has undergone “considerable psychiatric treatment from Dr Westerink”. He states that he becomes “paranoid very easily” and that this “has followed from being demeaned and humiliated at work”.
Mr Hogrefe describes his symptoms which include mood disorder, difficulty sleeping, loss of weight, no libido, severe depression, loss of appetite, insomnia, restlessness, fatigue and difficulty with concentration. Mr Hogrefe states that “before the injury” he was a “very active person and enjoyed sports, fishing, swimming and socialising”. He states he is now unable to carry out those activities.
The second statement made by Mr Hogrefe makes reference to his transfer to a fire station at Huntingwood in August 2001. At that time Mr Hogrefe states that he was “in an extremely calm and positive state”. He was happy in his work and was “very content” with the performance of his station commander with whom he had a good relationship. He felt that he had landed on his feet. He performed “recalls”, being work for which he volunteered on his days off. In 2005 the station commander was replaced. It was at that time that he began to be victimised. On 25 February 2006, Mr Hogrefe felt extreme “stress” at work. He experienced acute physical symptoms including profuse sweating, dizziness and nausea. He collapsed with severe abdominal pain and was taken by ambulance to Mt Druitt Hospital. He was released and referred to his general practitioner, Dr Bassa. At [19] Mr Hogrefe states:
“I believe my psychological injury was not complete until it manifested itself on 25 February 2006”.
Mr Hogrefe further states that, before his collapse at work, he had experienced mistreatment by the station commander and his co-workers, that mistreatment included having his fire hose driven over intentionally by the station commander, practical jokes, attempts to lock him up on one occasion, and many occasions where efforts were made to humiliate him.
Medical evidence
There are two reports of Dr John Westerink, consultant psychiatrist dated 13 November 2006 and 1 March 2007 in evidence. Mr Hogrefe had been referred to Dr Westerink by his general practitioner, Dr Bassa. Dr Westerink states in the first of those reports that he recommended that Mr Hogrefe be medically discharged from the fire brigade on 24 August 2006. His diagnosis was that of a Post Traumatic Stress Disorder caused by his work as a firefighter. Dr Westerink also expressed the view that Mr Hogrefe suffered depression, anxiety and somatisation disorder which conditions “often go with post traumatic stress disorder”. Dr Westerink records Mr Hogrefe reporting “a number of traumatic experiences” and that he experiences “memory triggers, he gets 30 of these on some days. He is angry and irritable”. Reference is made in that first report to “a psychologist report”, the author of which is not identified. Dr Westerink, after reading that report expressed the view that the psychologist “was unfamiliar with the condition of post traumatic stress disorder as he did not ask Mr Hogrefe about his traumatic experiences”. It was Dr Westerink’s view that Mr Hogrefe could no longer work and that his work as a firefighter was responsible for his post traumatic stress disorder.
Dr Westerink’s report dated 1 March 2007 enumerates seven particular traumatic experiences reported to him by Mr Hogrefe as having occurred in the course of his duties. The dates of those events are not noted. The Arbitrator had noted that it was agreed that all events had occurred prior to 1 January 2002. Some of those experiences were horrendous and each was particularly distressing. Dr Westerink expressed the view that “just one of these traumatic events would have been enough to cause post traumatic stress disorder, he has numerous”.
In that report Dr Westerink expressed the view that Mr Hogrefe had “also developed a condition known as Somatisation Disorder which not uncommonly is co-morbid with post traumatic stress disorder”. Dr Westerink also stated:
“He was also not given any support at work and in an unsupported environment it is more likely for post traumatic stress disorder to develop”.
There are a number of reports from Dr Thomas Oldtree Clark, consultant forensic psychiatrist in evidence. Dr Clark had been qualified by Mr Hogrefe’s solicitors to provide expert opinion for the purposes of this litigation. A consultation took place on 4 February 2008.
In a report dated 17 April 2008, Dr Clark acknowledges that he has seen the report of Dr Westerink dated 1 March 2007 which included a list of those events referred to at [26] above. Dr Clark also records that:
“[Mr Hogrefe] suffers nightmares and flashbacks. Not only does he suffer flashbacks but he also finds reminders are very easily triggered by relevantly insignificant events.
In addition he was victimised at work by other staff. [Mr Hogrefe] said ‘they were trying to get [him] out, putting crackers in coke cans and the like.
[Mr Hogrefe’s] reaction thus was not a simple reactive fear but pathological nervousness and depression relating to significant traumata and victimisation.”
Dr Clark, in a report dated 17 April 2008, expressed the following opinion:
“This man, a formerly vigorous and enthusiastic person, has been traumatised and is now depressed. He has been suicidal.
He has been severely affected and is still withdrawn and impaired.
He is depressed and his depression has many reactive features, with disturbed sleep, hypervigilance, withdrawal and anhedonia or loss of pleasure in life. These can be features of a Severe Depression but there are concomitant and overlapping symptoms of a Post-traumatic Stress Disorder.
He has attended for psychiatric treatment and has responded to a degree to the antidepressant medication and psychotherapy.”
In a report dated 16 August 2010, Dr Clark responded to correspondence received by him from Mr Hogrefe’s solicitors. It seems that correspondence was a letter dated 9 August 2010 which enclosed documents relating to Mr Hogrefe’s settlement in 1993 of a claim concerning certain orthopaedic injuries received in the course of his employment and settlement in 1996 of a claim arising from a motor accident. Dr Clark records the question put to him as follows:
“You asked if a deduction should be made for any psychological injury incurred prior to 01/01/02”.
Dr Clark’s approach to this question was to summarise his findings and conclusions reached during the course of an examination of Mr Hogrefe in 2008 following which he stated:
“Of relevance to your query, it is necessary to state there is no evidence of a pre-existing condition.
On my examination, there was no evidence of a pre-existing condition that would affect his psychiatric impairment.
Reading through the enclosed documentation, the work issues up to the time of the settlement were all physical, except for one item in the statement of particulars, which states; ‘2 Nature of injury’. This includes a general referral to anxiety and depression out of 11 categories. This is dated 02/07/96.
The other enclosure is in reference to a motor accident claim, where he again included anxiety and depression amongst some 10 other physical complaints. This was dated April 1995. However, there is no suggestion in the report that his anxiety and depression were impairing his performance, rather it is the physical complaints that were regarded as disabling him.
This, therefore, confirms there was no prior significant psychological injury, which could account for his present degree of psychiatric impairment. It would not be reasonable to deduct from his present degree of impairment for any anxiety and depression he suffered prior to 01/01/02.”
Dr Clark again wrote to Mr Hogrefe’s solicitors on 19 August 2011. That report is before the Commission and it appears to be in response to a “further query” put to Dr Clark by the solicitors. Dr Clark, in his reply to the solicitors, confirmed that, in 2005, the station commander at Mr Hogrefe’s workplace had been replaced at which time Mr Hogrefe had become “the object of victimisation. This caused him to develop an acute shock or severe stress reaction, which required his hospitalisation”. It was Dr Clark’s view that Mr Hogrefe “... had a severe depression, this being the evolution of his post traumatic stress disorder”.
Dr Clark concluded his report in the following terms:
“Of relevance to your further query, I would reiterate there is no evidence of a pre-existing condition.
I would add that on my examination there was no evidence of a pre-existing condition that would affect his psychiatric impairment.
You ask that I confirm that Mr Hogrefe was exposed to trauma at work, which had a ‘psychological’ affect on him, that is, caused by his psychiatric syndrome, post 01/01/02.
It is the case that the cause of his condition was the harassment and victimisation at work, which commenced in 2005”.
A report of Dr Yusuf Bassa, general practitioner, dated 2 July 2007 is in evidence. The following matters are recorded in that report:
“This man was treated at this surgery since 1986.
He has been employed by the NSW fire brigade since 1980.
He served in Balmain, Concorde [sic] for 1.5 yrs, Parramatta, St Marys for 13 years. Then transferred to Silverwater 12 mths. He had a Motor [sic] bike accident and was off work. Then he remained on light duties for 5 yrs due to soft tissue injuries from work related injuries. He also served at Rydalmere and then Huntingwood. He injured himself and was on light duties.
He had seen many severe injuries at accident and house fires and he was witness to burnt human flesh and these [sic] had severe PTSD for many years.
His first confrontation was with a burnt body in 1981/2.
This man has been depressed and traumatised by thes [sic] events. In February 2006 he suffered severe epigastric pains and he was unable to return to work. On close questioning and after a normal ultrasound he admitted to being under severe stress relating to his work place. He alleged that over 24 yrs of his employment he had felt victimised and abused by various supervisors in the work place. He was referred to Dr Westerink, consultant psychiatrist, at St John of God Hospital. He was diagnosed as having PTSD and was declared medically unfit for work.
Impairment 50% and a third due to work injury”.
The clinical notes of Dr Bassa concerning treatment of Mr Hogrefe were admitted into evidence at the hearing. Those notes include a copy of a report addressed to Dr Bassa from Dr Catherine Field dated 2 May 2006. In that report Dr Field summarised those symptoms reported to her on that day by Mr Hogrefe as follows:
“He is still feeling tired and has lost weight and is not sleeping well. He seemed flat today and voiced some concerns about his current light duties. He will discuss alternative duties with his Rehab. Case Manager”.
Dr Field requested Dr Bassa to consider a “psychiatric referral”.
Mr Hogrefe tendered a large number of documents in evidence most of which have no direct relevance to the issues raised on this appeal. Reference to those documents, where relevant, is made in the course of discussion hereunder.
The appellant’s evidence
The appellant relied upon a report of Dr Catherine Field, dated 11 September 2006. That report was addressed to the appellant’s Assistant Director, Operational Personnel. That report included the following recommendation:
“It is my recommendation that [Mr Hogrefe] be medically retired from the NSW Fire Brigades and this recommendation was endorsed by the Case Management Committee on 5 September 2006.”
The appellant relied upon the contents of a report compiled by an organisation described as “Claims Intervention”. That report included a summary of matters stated by Mr Hogrefe during investigation of his claim. The following is recorded at page three of that report:
“Mr Hogrefe said that he thought the Psychological Disorder, which had become obvious by the time he saw his treating Doctor on the 27th February 2006, had been caused by a combination of the stomach pain and the stress at work. He said he had been unsure if the stomach pain had itself been a factor in the onset of the Disorder. He said he had thought the stress at work had come primarily from having to do extra drills under the new commander and this had reminded him of past negative memories of problems with previous commanders.”
That investigation report also included a transcript of a report compiled by Mr Michael Kirton, clinical psychologist, who examined Mr Hogrefe on 20 March 2006. It was Mr Kirton’s opinion that the symptomatology reported by Mr Hogrefe “met the criteria for Adjustment Disorder with Depressed Mood (309.0), as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, 2000, American Psychiatric Association (DSM-IV-TR)”. The history taken by Mr Kirton is summarised at pages 8 and 9 of the investigation report. No history was recorded concerning the traumatic events which were noted by Dr Westerink.
It was Mr Kirton’s opinion that the conditions as diagnosed by him were related to those matters summarised in his report as follows:
“Precipitating Events
It appears that here [sic] had been two major ongoing and precipitating factors leading up to the emergence of Mr Hogrefe’s Psychological Disorder.
The first had been the matter of his painful stomach attack at work which had necessitated the calling of an ambulance to take him to Mt Druitt Hospital.
The second had been the mental stress he said that he had been under because he said that Mr McIlrath had increased the number of drills in the daily routine at the station. Mr Hogrefe said that this had reminded him of a lot of old problems he had had in the past with other commanders. He said that he had been unsure of which had caused him to develop the psychological disorder”.
A copy of Mr Hogrefe’s workers compensation claim form, which was presented by his solicitors to the appellant’s insurer in 2009, is annexed to the Reply. The injury as alleged in that form is noted at [6] above.
The appellant has tendered in evidence a copy of a notice issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 12 October 2011. That notice included the following particulars relating to the insurer’s denial of the claim:
“• It is not disputed that you suffered psychological injury in the nature of post-traumatic stress disorder as a result of exposure to traumatic events in the course of your employment as a fire fighter with such diagnosis being made by Dr Westerink in mid-2006.
· However, on your own evidence, those events occurred before 1 January 2002 and therefore, it is contended that the provisions of Schedule 6 Part 18C of the 1987 Act when applied to the facts would produce a 100% reduction in any compensation payable for permanent impairment as a result of that injury.
· Insofar as it is asserted that events that were disclosed by you in February/March 2006 may contribute to any psychological injury, it is confirmed, as indicated in the notice to you of 3 April 2006 from Treasury Managed Fund, that employment was not a substantial contributing factor to the psychological injury that was disclosed at that time.
· In relation to any fresh allegations and particularisation of events or circumstances that were alleged to have caused or contributed to your psychological disorder (which we contend was first disclosed to any degree in the Application to Admit Late Documents of 22 August 2011), it is contended that there is insufficient evidence or particularisation in support of your claims of victimisation or bullying.”
It should be noted that the appellant did not seek to tender any report from Dr Potter, psychiatrist, who had examined Mr Hogrefe on its behalf following presentation of the claim for lump sum compensation.
Submissions before the Arbitrator
Mr Hogrefe’s submissions
The thrust of Mr Hogrefe’s submissions was that the lay and medical evidence concerning the onset of his psychiatric symptoms as diagnosed by the medical practitioners, followed the replacement of the station commander in 2005 which was soon followed by a sequence of events which caused Mr Hogrefe to be victimised. It was also argued that the relative significance of the traumatic incidents enumerated by Dr Westerink may be determined having regard to the unchallenged evidence that Mr Hogrefe had, up until 2005, been free of any psychiatric symptoms and further that such symptoms came on only following the later stressful events which he summarises in his evidence.
Reliance was placed upon the evidence of Dr Clark in support of the submission that “the cause of [Mr Hogrefe’s] condition was the harassment and victimisation at work”. In the alternative counsel argued that, should the earlier traumatic events be considered in some way causative of his psychiatric disability, “they ought not to figure more than ten or at the most 20% in your apportionment of the number”. It was submitted that the appellant’s failure to tender the evidence of Dr Potter would permit an inference to be drawn that the appellant’s case would not be advanced by the presentation of that evidence.
The appellant’s submissions
Counsel appearing on behalf of the appellant formally relied upon those written submissions which had earlier been provided to the Commission. Those submissions, which are not dated, are before the Commission and need not be summarised. It should be noted that the appellant accepted that the provisions of s 323 of the 1998 Act had no relevance to the present facts. The dispute between the parties concerned the proper application of the provisions of cl 3(2) of Pt 18C of Sch 6 to the 1987 Act.
Reliance was placed upon the decision of the Commission in Department of Environment, Climate Change and Water v J [2010] NSWWCCPD 56; 8 DDCR 353. It was argued that the factual circumstances in the matter of J were analogous to the present matter and that a proper evaluation of the evidence would lead to the conclusion that Mr Hogrefe’s psychiatric impairment was the result of events which had occurred before the relevant date, namely 1 January 2002.
In the course of submissions, counsel sought to highlight numerous entries found in Dr Bassa’s notes which suggested that non-work related matters may have contributed to his depressive symptoms. Argument was also advanced that Mr Hogrefe had failed to establish the occurrence of the stressful incident alleged in the course of his employment following the appointment of the new station officer in 2005.
Counsel appearing for Mr Hogrefe replied to the appellant’s submissions during which attention was drawn to the evidence of Dr Field.
The Arbitrator’s decision
The Arbitrator noted, at [3] of Reasons, that the “sole issue in dispute is what, if any, reduction in the compensation payable should be made pursuant to the transitional provisions in subclauses 3(2) and (3) of Clause [sic, Part] 18C of Schedule 6 to the 1987 Act”. It was further noted that the parties had agreed that, should a reduction be made in accordance with those clauses, such reduction “should be a reduction in the compensation payable, rather than in the degree of whole person impairment: Fleming v NSW Police Force [2011] NSWWCCPD 33 [at 89].”
The Arbitrator summarised the submissions put on behalf of each party and summarised the documentary evidence which was before him. It was stated in the course of Reasons (at [56]) that “the issue for determination is the extent, if any, to which Mr Hogrefe’s permanent impairment resulting from his psychological injury is due to events occurring prior to 1 January 2002”. The Arbitrator proceeded to express his acceptance of the evidence of Dr Westerink and Dr Clark. That expert evidence was accepted by the Arbitrator in preference to the evidence of Mr Kirton as regards diagnosis.
A finding was made by the Arbitrator (at [59]) that Mr Hogrefe “suffered Post Traumatic Stress Disorder with co-morbid depression and Somatisation Disorder, and later a Major Depressive Episode, as a result of exposure to traumata at his workplace”.
The permanent impairment, as agreed between the parties, was a 17 per cent whole person impairment as a result of psychological injury. The Arbitrator made a finding that the deemed date of injury was 25 February 2006, the date when Mr Hogrefe “first suffered incapacity as a result of it” (at [61]). That finding was reiterated by the Arbitrator (at [62]) when it was stated “I am satisfied on the evidence that 25 February 2006 was the first date of incapacity due to psychological injury. That is consistent with the parties’ agreement on that date as the deemed date of injury”.
The Arbitrator found, at [63] of Reasons, that Mr Hogrefe’s symptoms “were triggered by Mr Hogrefe’s reaction to the drills imposed by his Station Commander on 25 February 2006. That is so, even though I accept that Mr Hogrefe felt distressed by the actions of his colleagues in 2005, which he described in his statement”.
The Arbitrator proceeded to address the question as to whether compensation payable for the impairment as agreed should be reduced in accordance with the transitional provisions. A conclusion was reached that there should be a reduction of 30 per cent in accordance with those provisions having regard to the relevance of events occurring prior to 1 January 2002. The Arbitrator’s reasoning is to be found between [66] and [69] of his Reasons where the following was stated:
“66. In determining the proportion of impairment that is due to events prior to 2002, significant weight must be given to the effect of the events of 25 February 2006, as they directly produced Mr Hogrefe’s de-compensation, bringing with it impairment and incapacity. Weight must also be given to the ultimate causes of his conditions - namely, the traumata experienced prior to 2002. On the medical evidence, I am satisfied that those events formed part of a common sense chain of causation, of the kind discussed in Kooragang Cement Pty Limited v Bates [1994] 35 NSWLR 452. Though the events of 25 February 2006 directly precipitated the symptoms which caused Mr Hogrefe’s impairment, they brought to fruition a chain of causation which had commenced with his exposure to multiple traumata prior to 2002, and did not break that chain of causation.
67. In assessing the relative contribution of the pre-2002 traumata, I take into account that each of them was causative of the psychological injury. I also take into account the likelihood that symptoms of the psychological injury or injuries were not complete prior to 2006, and that the events of 25 February 2006 triggered the applicant’s de-compensation on that day, completing his symptomatology, and directly precipitating his impairment and incapacity for work. There is no evidence that, but for the events of that day, Mr Hogrefe would have suffered permanent impairment by reason of his psychological injury. For those reasons I am satisfied that, though weight must given to causative events both prior to and after 1 January 2001 [sic, 2002], greater weight ought be accorded to the latter.
68. The medical evidence alone does not permit of a precise apportionment. In those circumstances, the Commission must do its best, making appropriate use of the remaining evidence, while taking the medical evidence into account. On that basis, I am satisfied that the proportion of Mr Hogrefe’s impairment that is due to his exposure to traumata prior to 2002 is in the order of 30 per cent.
69. There will be an award for the applicant pursuant to section 66 of the Act, giving effect to the parties’ agreement that whole person impairment ought be assessed at 17 per cent, and deducting from the amount otherwise payable 30 per cent thereof.”
The Arbitrator proceeded to enter the orders and make the direction which appear in the Certificate of Determination dated 22 March 2012 which is noted at [10] above.
SUBMISSIONS, DISCUSSION AND FINDINGS
As earlier noted this appeal concerns the question as to whether the Arbitrator has erred in the manner of his application of the provisions of cl 3 of Pt 18C of Sch 6 to the 1987 Act to the facts as found. The Arbitrator’s factual findings are also the subject of complaint. The relevant clause forms part of the transitional provisions which govern the operation of those amendments to be found in the amending Acts passed by Parliament in 2001 being the Workers Compensation Legislation Amendment Act 2001 (No 61) and the Workers Compensation Legislation Further Amendment Act 2001 (No 94). Clause 3 of the Schedule provides relevantly as follows:
“3 Lump sum compensation amendments
(1) The lump sum compensation amendments do not apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) except as follows:
(a) the amendments to section 66A apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) and so apply:
(i) subject to such modifications to that section as may be prescribed by the regulations, and
(ii) as if an agreement registered before that commencement by the Authority were registered by the Commission,
(b) the repeal of section 72 applies in respect of an injury received before the commencement of the amendments, but only to the extent that the injury is the subject of a new claim.
(2) There is to be a reduction in the compensation payable under Division 4 of Part 3 (as amended by the lump sum compensation amendments) for any proportion of the permanent impairment concerned that is a previously non-compensable impairment. This subclause does not limit the operation of section 323 of the 1998 Act or section 68B of the 1987 Act.
(3) A previously non-compensable impairment is loss or impairment that is due to something that occurred before the commencement of the amendments to Division 4 of Part 3 made by the lump sum compensation amendments, being loss or impairment that is of a kind for which no compensation was payable under that Division before that commencement.
(4) …”
A worker’s entitlement to lump sum compensation in respect of psychological injury was introduced following the passage of the Workers Compensation Legislation Amendment Act 2001, which became operative on 1 January 2002, making provision for the insertion of s 65A in its present form into the 1987 Act. In the present case the Arbitrator has made a finding that injury had occurred on 25 February 2006. Whilst that finding has not been the subject of challenge on this appeal, I note that such finding does not reflect the agreement apparently reached between the parties as recorded in the transcript (at T4) that “the deemed date of injury was the date of medical retirement”. I conclude that nothing turns on this apparent conflict. It is clear that the Arbitrator’s finding was one in respect of a deemed date of injury and that such injury fell within either s 4(b)(i) or s 4(b)(ii) of the 1987 Act, and unspoken notice had been taken of either ss15 or 16 of that Act. Whilst the Arbitrator is in error when he stated (at [62]) that his finding concerning the date of injury was “consistent with the parties’ agreement on that date as the deemed date of injury”, such finding was open on the evidence and is consistent with the reasoning to be found in the decision of the Court of Appeal in P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 215; 49 NSWLR 481 and GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 and those other relevant authorities which were discussed in Milburn v Veolia Environmental Services (Australia) Pty Ltd [2012] NSWWCCPD 26.
The questions raised on this appeal were the subject of consideration by the Court of Appeal in SAS Trustee Corporation v Pearce [2009] NSWCA 302 (Pearce) where it was stated by Basten JA (Beazley JA agreeing):
“111. To the extent that the PTSD constituted, or was the consequence of, an injury received before the commencement of the amendments, the lump sum compensation amendments did not apply. However, once the Commissioner determined that the injury happened in 2005 because the PTSD constituted a disease within the terms of s 15 or s 16, it was an injury received after the commencement of the amendments on 1 January 2002. The transitional provisions are then engaged.
112. The reduction required by the transitional provision turns on a causal connection between the impairment and events which occurred before the commencement of the amendments. There may be various circumstances in which an injury is received after a particular date but is “due to something” that occurred before that date. Circumstances which engage ss 15 or 16, providing for deemed dates of injury, could also engage the transitional provision and require a reduction under cl 3(2). They require the assessment of a “proportion” of the impairment which is “due to” events occurring before 2002.”
The appellant’s four grounds of appeal as drafted, each suggest errors of law. I have earlier observed that these grounds lack precision and are unhelpful. This circumstance is not assisted by the absence of submissions specific to each individual ground.
The substance of the appellant’s complaints concerns firstly, a challenge to the Arbitrator’s factual findings as to the extent of the causal connection between the impairment and those traumatic events noted by Dr Westerink which had occurred prior to 1 January 2002. The second challenge suggests an error of law by reason of application by the Arbitrator of the wrong test when determining the relevance of those traumatic events, and of events post dating 1 January 2002.
The appellant’s submissions acknowledge that the Arbitrator had found that the “pre 2002 traumata were causative of [Mr Hogrefe’s] psychological injuries [sic]” (at [11] of submissions), but an assertion is made (at [12] of submissions) that the Arbitrator had failed “to make a finding that the events of 25 February 2006 were also causative of the [injury]”. The argument is developed that, as the Arbitrator had made only one finding as to the cause of [Mr Hogrefe’s] injury, being traumata prior to 1 January 2002, there should have been a reduction by 100 per cent of the compensation payable.
I reject the suggestion found in the appellant’s submission that no finding was made by the Arbitrator concerning a causal nexus between events post dating 1 January 2002 and the injury. The question was addressed by the Arbitrator at [66] of Reasons which I have noted at [57] above.
The Arbitrator’s reasoning set forth at [66] of his Reasons establishes, in my opinion, that a finding had been made concerning causation which took into account events post dating 1 January 2002. That view is fortified by the statements made at [67] of Reasons which also appears at [57] above.
The suggestion made in submissions that the Arbitrator “seems to confuse the concepts of incapacity and impairment” must be rejected. The findings noted immediately above demonstrate that the Arbitrator has treated the events of 25 February 2006 as causative, in part, of injury and that the injury has given rise to incapacity.
The appellant’s challenge founded upon suggested error of law is to be found at [13] of submissions where it is argued:
“The references to the psychological injury being ‘complete’ on 25 February 2006 do suggest that the Arbitrator is using an erroneous test of the requirement that an impairment be a loss or impairment that is ‘due to something that occurred’. That may be unknown to the law and certainly unknown to the Workers Compensation Act.” (emphasis in original)
The Arbitrator’s use of the term “complete” is not founded upon any part of the expert medical evidence, but appears to be an adoption of the term used by Mr Hogrefe in his statement which I have noted at [23] above. The Arbitrator, at [67] of Reasons, made clear in my opinion that his use of the term “complete” was intended as a qualification to the state of Mr Hogrefe’s symptoms. The concept of “complete symptoms” was not adopted by the Arbitrator as a test either of causation nor as a means of determining any appropriate “reduction” for compensation as may be required by application of the transitional provisions.
The appellant’s suggestion that the Arbitrator erred in failing to reduce the compensation payable by 100 per cent must be rejected. The Arbitrator, in my view, has addressed those matters raised in Pearce concerning the determination of an appropriate proportion of the compensation payable. That determination was made notwithstanding the state of the expert medical evidence concerning this question. The evidence of Dr Clark was of little if any assistance to the Arbitrator as to this matter, given that Dr Clark had been asked the wrong questions by the solicitors. Those questions posed for the doctor’s consideration were more appropriate to questions raised by s 323 of the 1998 Act, a section not presently relevant, than those raised by the transitional provisions. The Arbitrator has made the necessary assessment having regard to all the evidence, has stated his reasons plainly and his conclusions were, in my opinion, open on that evidence. There is no argument advanced by the appellant that would properly permit any order correcting the Arbitrator’s assessment as seems to be suggested at [2.10.3] of submissions. The appeal should be dismissed.
DECISION
The findings and orders made by the Arbitrator in paragraphs 1, 2 and 3 of the Certificate of Determination dated 22 March 2012 are confirmed.
COSTS
The appellant is to pay Mr Hogrefe’s costs of the appeal.
Kevin O'Grady
Deputy President
29 June 2012
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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