Formica v DJ Batchen Pty Limited

[2007] NSWWCCPD 5

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Formica v D J Batchen Pty Limited [2007] NSWWCCPD 5

APPELLANT:  Bruno Formica

RESPONDENT:  D J Batchen Pty Limited

INSURER:GIO Australia

FILE NUMBER:  WCC16118-04

DATE OF ARBITRATOR’S DECISION:          2 March 2005

DATE OF APPEAL DECISION:  8 January 2007

SUBJECT MATTER OF DECISION:                Adequacy of reasons; evidence; procedural fairness

PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy

HEARING:On the papers

REPRESENTATION:  Appellant:      S P Nasti & Co., Solicitors

Respondent:   Rankin Nathan Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 2 March 2005 is confirmed.

No order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

1. Mr Bruno Formica (‘the worker’) was employed by D J Batchen Pty Limited (‘the employer’) as a fitter and turner for a number of years.  On 14 February 1996 he suffered a head injury at work at 10.30 a.m.  He continued at work; however he was absent the next day and has not returned to work since.  He attended doctors and obtained certificates in relation to his absences with which I will deal in greater detail later.

2. On 26 April 1996 the worker attempted suicide by hanging but was found before he had accomplished his purpose.  Following this he was initially admitted to Liverpool District Hospital and later Royal Prince Alfred Hospital (‘RPAH’).  He has been substantially incapacitated since the attempted suicide and suffered a left-sided stroke on 7 June 1997.  A claim for compensation was lodged by the worker with his employer and the date of this is unclear, however it was signed on behalf of the employer on 15 March 1996.  The account of injury is as follows:

   “While I was removing the shavings from under the drill machine I got up and bumped my head.  As soon as I stood up I felt very strong pain to the right side of my head.  3 p.m. I felt dizzy and couldn’t keep my balance and fell down.”

   He said that he had seen Dr Reddy and had stopped work on 15 February 1996.

3. The employer’s report of injury is also dated 15 March 1996.  It refers to an attached letter which is not in evidence. In its absence there is very little factual content in the Employer’s Report of Injury.  A claim for weekly compensation from 14 February 1996 onwards was made on 16 June 2004.  I infer that the claim was not accepted and accordingly an ‘Application to Resolve a Dispute’ was lodged with the Worker’s Compensation Commission (‘the Commission’) on 8 October 2004. In that the injury is described as follows:  “Psychiatric, psychological, stroke, arms legs back and neck”.  The circumstances of the injury are described as follows:

   “On 14 February 1996, the Applicant struck his head at his place of work which led to him suffering dizziness.  This injury led to the Applicant suffering anxiety, a major depressive illness, consequential attempt at suicide, dizziness and sequelae leading to stroke and consequential injury to arms legs back head and neck.”

4. The employer lodged a reply, a teleconference was held on 16 December 2004 and there was an arbitration hearing on 27 January 2005 at which counsel addressed. No evidence was taken on that occasion. The Arbitrator determined that the employer was liable to pay the worker weekly compensation for a limited period and section 60 expenses also for a limited period.

5. It is from this decision that the worker now seeks leave to appeal.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 2 March 2005 records the Arbitrator’s orders as follows:

   “1.That the Respondent pay the Applicant weekly compensation at the rate of $474.90 from 15 February 1996 to 2 March 1996 under s36 of the Workers Compensation Act 1987, totalling $1,139.76.

   2.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses in relation to consultations with Dr Reddy, Dr Presgrave and tests ordered by Dr Presgrave in the period 15 February 1996 to 2 March 1996 and the further examination by Dr Presgrave on 28 March 1996 on production of accounts or receipts.

   3.That the matter is determined as complex within the meaning of section 4.10 of Schedule 6 of the Workers Compensation (General) Regulation 1995.

   4.That the Respondent pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are:

   ·whether the Arbitrator erred in concluding that the worker’s incapacity as a result of injury of 14 February 1996 did not extend beyond 2 March 1996;

   ·whether the Arbitrator was justified in relying on statements made in medical reports and hospital notes which were said to be contrary to the evidence of the worker’s wife;

   ·whether the Arbitrator breached the rules in Browne v Dunn and Jones v Dunkel;

   ·whether the Arbitrator gave adequate reasons for deciding as he did and for rejecting the evidence of the worker’s wife.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”

2. On behalf of the worker an oral hearing is sought on the basis that:

   (a)the worker sustained injury in 1996 followed by a Major Depressive Illness, attempted suicide, stroke and multiple disabilities;

   (b)       the worker has been institutionalised in a nursing home since 1996;

   (c)evidence as to factual matters was given by statements by the appellant’s wife and medical evidence;

   (d)      the appeal concerns errors of law and fact;

   (e)the worker’s submissions comprise seven pages and refer to multiple authorities and require further oral argument.

3. The employer consents to the matter being decided on the papers.

4. Extensive submissions have been made on behalf of the worker and, having regard to Practice Directions No. 1 and 6, the documents that are before me and the submission by the employer that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

2. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

3. The amount of compensation at issue on the appeal is greatly in excess of $5,000.00 and all that amount is at issue.  Accordingly, section 352(2) of the 1998 Act is satisfied and leave to appeal is granted.

EVIDENCE

Evidence on behalf of the Worker

1. A number of reports from Dr Leo Tsang, a psychiatrist, were attached to the ‘Application to Resolve a Dispute’.  In the first of these dated 26 April 1997 Dr Tsang said that he first saw the worker on 27 March 1996 after he had been referred by his family physician, Dr Reddy.  The worker was complaining of feeling depressed for the preceding four weeks.  He told the doctor that he had hit his head on a machine on 14 February 1996.  He said that later that afternoon he lost his balance and fell down.  Over the next two days he said he continued to lose his balance, felt dizzy and was vomiting.  He had not returned to work since and had been feeling depressed.  Dr Tsang noted that in the referral from Dr Reddy he had been advised that the worker had been assessed by a neurologist and all investigations had been negative.  He obtained a history that the worker had been suffering from non-insulin dependent diabetes mellitus and hypertension for 15 years.  Dr Reddy told Dr Tsang that the worker had drunk to excess in the past and did not take good care of his diabetes, as a result of which his eyesight had been deteriorating.  The worker Dr Tsang said was concerned that because of his deteriorating eyesight, uncontrolled diabetes and hypertension, he might not be able to return to work.  He told Dr Tsang that he had signed a contract for building a new house and construction was due to start in the week following the consultation.  He said he was worried about the future of his children and his younger daughter was still in high school.  He said he had lost interest in doing anything for four weeks, he thought might lose both the new house and his family home because he could no longer work.  His wife had reportedly reassured him that they were financially sound.  However, those reassurances appeared to have little effect on his worries.  The worker had been prone to be mildly depressed in the past and used to drink some alcohol each night to relax.  He had to give this up because of his uncontrolled diabetes and had been feeling worse since.  Dr Tsang considered that the worker was suffering from a Major Depressive Episode and the worker was commenced on two drugs:  Mianserin and Melleril.  The worker had shown some initial improvement however, at the end of April he attempted to hang himself at home.  He was found in time by his daughter and wife and admitted to RPAH.  He was then unconscious for some days before making a reasonable recovery.  He was then transferred to Liverpool Hospital and he was then placed in a retirement village, Scalabrini Village. 

2. Dr Tsang thought that there was some anoxic brain damage as a result of the suicide attempt.  The initial cerebral scan at RPAH was reported as normal but a repeat CT scan at Liverpool Hospital was reported to show an area of hypodensity to the left parietal lobe consistent with ischaemic changes.

3. The doctor answers a number of questions which had been posed by the worker’s solicitor, however, the letter asking the questions is not in evidence.  Dr Tsang thought that from a psychiatric point of view the worker’s Major Depression was a result of many factors acting in combination.  These included his physical ill-health, including uncontrolled diabetes and hypertension with their secondary complications, his financial worries about the construction of his new house and the future of his children, and his pre-morbid personality of being quiet unable to express his feelings verbally and being a loner.  Dr Tsang considered that the head injury at work with its mild concussive symptoms appeared to have acted as a precipitating event which triggered off the worker’s Major Depression.  Dr Tsang considered that the worker’s mental state had continued to deteriorate over the preceding 12 months and his depression had proved resistant to treatment so far.  The worker had been treated with electro-convulsive therapy which only improved his mood state marginally.  He remained in a retirement village and may need to be transferred to the nursing home section of that village.  His treatment had been complicated by the anoxic brain damage which he suffered either as a result of the suicide attempt or his diabetes or hypertension, or all of those acting in combination.  Dr Tsang considered the worker permanently disabled.

4. Dr Tsang saw the worker again at the request of his solicitors on 7 August 2000 (report 8 August 2000).  On this occasion Dr Tsang obtained a more complete history of the injury on 14 February 1996.  The worker told him that he was shaken by the impact however there was no loss of consciousness or bleeding.  He said he continued to feel dizziness and nausea and worried how he would drive home after work.  At about 4.30 p.m. the worker said he felt more dizzy and nauseous, he blacked out for a minute or so and fell to the floor.  This was unobserved by other workers.  The worker told him that when he came to he had to struggle to stand up and felt weak.  He did however drive home since no assistance was offered. The worker’s wife said that he looked unwell and upset when he arrived home.  She cooked him some soup and he went straight to bed.  The next day the worker said he continued to feel unsteady and lost balance.  He went back to bed and saw his family physician, Dr Reddy, later that day.  The worker said that he noticed his vision was worse and he could no longer drive.  He was then referred to see a neurologist.  The worker’s wife said that he remained confused and was unable to express himself fully at the consultation with the neurologist.   The worker said he started to become depressed when he felt he wasn’t getting better.  He began to ruminate about not being able to return to work or drive.  He had signed a contract for construction of a new house and he was worried that he would face financial ruin if he were unable to return to work.

5. When Dr Tsang saw him on 7 August 2000, he thought that the worker’s mental state was much better than when he had seen him three years before.  He appeared brighter and was not dwelling on death or the hopelessness of the future.  The worker’s wife said that her husband had suffered two further CVAs (cerebro vascular accidents) in the preceding three years.  The worker was shaky, unable to speak properly, unable to taste his food properly, and had weakness on the left side of his body.  Once again Dr Tsang expressed the opinion that the head injury at work had acted as a precipitating factor triggering off the worker’s Major Depression.  However, he thought a direct cause and effect connection would be difficult to establish.  He expressed the view however that the head injury did contribute substantially to the worker’s subsequent development of a Major Depression.

6. Dr Tsang again saw the worker on 14 February 2003 and reported to his solicitor on 4 December 2003.  The worker’s sight had deteriorated to the extent that he could not see the chair behind him and he became panicky as he sat down.  Mrs Formica said that his panic sometimes caused him to overbalance when he was sitting down.  The worker complained of feeling depressed and irritable with his family and staff in the nursing home.  He thought the food was terrible and he had not been eating.  He complained of sleeping disturbances with frequent waking during the night.  All he wanted to do was to return to live at home and thought he would be better off dead.  Mrs Formica said that she had continued to take the worker home for two days every week but it was difficult to have him home for longer periods because he required two nurses to bath or shower him.  She also found it difficult to cope with his irritability.  Again, Dr Tsang considered that the worker looked better than when he had seen him previously.  He said he was talking fluently and much more animatedly and expressively.  However his gait had deteriorated and he was walking more slowly and with more hesitation.  At the conclusion of the consultation Dr Tsang changed the worker’s anti-depressant from Zoloft to Efexor XR.

7. When Dr Tsang saw him again on 14 March 2003 the worker’s mood state had improved a little.  However he continued to complain about the staff of the nursing home.  On testing Dr Tsang found an improvement of the worker’s cognitive functions.  He thought the worker was more orientated in time and place.  Dr Tsang’s opinion was the worker continued to suffer from symptoms of a Major Depression which had improved with treatment over the preceding nine months.  However, he thought that that treatment was now optimized and more aggressive treatment was unwarranted.  Dr Tsang expressed the opinion that it was in the worker’s interests to have his wife act as his tutor in giving further legal instructions.

8. In a short report of 22 April 2004 Dr Tsang says that the worker remains totally unfit for work and the doctor’s opinion was that:  “On the balance of probability, the head injury the worker suffered at work did contribute substantially to his subsequent development of a Major Depression”.

9. Dr Presgrave, a neurologist and neurophysiologist, saw the worker on 20 February 1996 at the request of Dr Reddy.  The worker told Dr Presgrave that, following the injury at work on 14 February, there was some minor bleeding but no significant bruising and he continued to work.  As the day progressed he felt nauseated but was able to eat his lunch.  Later in the day he had a brief bout of vertigo and he had lost his balance transiently.  This was associated with nausea.  There were a number of similar episodes during the day but he continued his work normally and stated that he did not report the accident to his employer.  In the week leading up to the initial consultation he reported experiencing brief episodes of loss of balance without vertigo.  He stated that on the day following the injury he began to experience headaches at the vertex radiating to the neck which had been present continuously until the time he saw Dr Presgrave.  His headaches were worse at night and the worker sometimes awoke from sleep because of a headache.  This was partially relieved by Panadol.  He denied experiencing headache prior to the injury.  There was a past history of hypertension, diabetes mellitus and hypercholesterolaemia.  Dr Presgrave thought that the worker had suffered a “quite minor head injury”.  He thought the headache was benign but had suggested a CT scan of the brain and X-rays of the cervical spine.  Dr Presgrave thought that the subsequent complaints of dizziness and imbalance were fairly non-specific and would be unlike to be due to any significant vestibular problem or a neurological injury.  However, he arranged further tests which were reported as follows:

   ·CT scan of the brain 23 February, 1996 – Normal

   ·X-rays -Cervical spine with functional views 23 February, 1996 – “There is loss of disc height at the C5/6 level with osteophyte formation.  There is minor narrowing of the C5/6 neural foramina, more on the right than the left, by posterior osteophytes.”

   ·ENG and caloric testing 21 February, 1996 – Normal study.

10. Dr Presgrave reviewed him on 29 February 1996 when the worker continued to complain of a pressure sensation in the head and non-specific dizziness.  He had not returned to work since the accident.  The worker was then referred back to Dr Presgrave on 28 March 1996 and the letter of referral from Dr Reddy noted that the worker was complaining of “loss of balance, loss of memory, confusion, loss of sleep, shaking of arms and body, visual disturbance, vomiting and forgetfulness”.  When reviewed 28 March 1996 the worker said that he felt depressed and even suicidal.  He complained of poor memory and concentration.  His wife said that he was not sleeping and had lost 9 kilograms in weight. 

11. Dr Presgrave’s comment in his report of 9 July 1997 was that the worker’s injury consisted of a minor knock on the head associated with some scalp bleeding.  He did not think this would have produced any significant or permanent neurological injury.  Investigations revealed a presence of pre-existing cervical spondylosis but no other relevant findings.  Dr Presgrave did not consider that the minor injury would have produced any exacerbation, aggravation or acceleration of this pre-existing cervical spondylosis [the language of Dr Presgrave’s opinion suggest that this was posed as a direct question in those terms by the solicitor acting for the worker.]  Dr Presgrave thought that subsequent complaints of persistent dizziness, headache, poor concentration, impaired memory, sleeplessness, visual disturbance and confusion were all features pointing towards depression.  This appeared to be the view of his treating psychiatrist who had commenced anti-depressant medication, although Dr Presgrave had no reports from Dr Tsang.  Dr Presgrave thought that the relationship between the worker’s apparent depression and associated disability and the injury of 14 February 1996 would be best addressed through his treating psychiatrist.  However, it was his opinion that it was most unlikely that this injury would have been the sole factor triggering a depressive illness.  Dr Presgrave refers to a comment in the solicitor’s letter of 12 April 1997 wherein it was stated that:

    “We are instructed by our client’s family that our client has X-rays which verify that there was brain damage, probably as a result of the injury at work which also had an effect on his psychological/psychiatric state.”

    Dr Presgrave said that this was not the information conveyed to him by either the worker or his wife to whom he had explained that there was no significant neurological injury and there was no abnormality on the CT scan of the brain.  He emphasised that there was no brain damage whatsoever as a result of the work injury and would regard with some scepticism the suggestion that any depressive illness which may have been present following the injury of 14 February 1996 was solely related to that injury.

1. Dr Presgrave again saw the worker on 29 August 2000 at the request of his solicitors.  Most of the history was provided by the worker’s wife.  She told the doctor that her husband had attempted hanging on 26 April 1996 and had been found by his 18 year old daughter.  He had been initially taken to Liverpool Hospital and subsequently RPAH where he remained for two months before being returned for rehabilitation to Liverpool Hospital.  When seen he was living in Scalabrini Nursing Home.  Dr Presgrave felt that as a result of the hanging the worker had sustained hypoxic brain damage.  Dr Presgrave noted the Discharge Summary from RPAH dated 13 May 1996 and that the worker had been admitted to Liverpool Hospital in late September 1996 with deteriorating depression and had been treated with electro-convulsive therapy.  In 1996 he had sustained a stroke in which he developed weakness of the left side of the face and slurred speech, again resulting in admission to Liverpool Hospital.  In 1998 there was a possible further stroke in which there was an exacerbation of weakness on the left side.  Subsequently he developed difficulty with swallowing but remained on a normal diet.  Dr Presgrave noted a CT scan of the brain performed on 1 September 2000 which showed:

   “Marked generalised cerebral atrophy as well as a large lacunar infarct in the right internal capsule.”

2. Dr Presgrave drew attention to the transfer letter from Dr Blackwell (RPAH) to Dr Baker (Liverpool Hospital) dated 13 May 1996 which provided some background to the worker’s pre-morbid personality behaviour and may have had some bearing on the cause(s) of the worker’s depression.  Dr Presgrave adhered to the view which he had earlier expressed that the symptoms which he had noted in the worker in early 1996 were due to depression and not due to a cerebral injury.  He thought it was unlikely that the work injury would have been the sole factor triggering the depressive illness and the information in the transfer letter added some weight to this opinion.

3. Dr Presgrave noted that the worker had suffered a right hemisphere, anterior circulation sub-cortical stroke in 1997 resulting in further impairment of speech and left-sided motor function.  The doctor considered that the worker would have been predisposed to the stroke by hypertension and diabetes and it was not necessarily a later consequence of hypoxic brain damage.  Dr Presgrave thought that the worker was unable to engage in any form of employment on a full-time or part-time basis and was most unlikely to be able to do so in the future.

4. Lodged with the Application to Resolve a Dispute were the notes of Liverpool Hospital.  Contained within the notes is the letter of referral from Dr Blackwell of RPAH to Dr Baker which is referred to by Dr Presgrave (above).  Some history is contained in that letter which I will set out below:

   “Early this year they made a decision to sell and build a new house, a decision which appears to have weighed heavily on Mr F.  He had an accident in mid February at work and was struck on the head.  Details of this are sketchy, but he was unable to return to work and had become anxious and ruminatively depressed.  His family have noted him talking in a conversational way to himself and his behaviour has become increasingly erratic.  He has constantly talked about the problems he felt would ensue financially including the possibility of bankruptcy.  So much so, that he has woken his family at 2 and 3 a.m. to discuss this.  He has been hostile and threatening including holding a knife to his wife’s throat and threatening to kill her and himself.  He has been repetitively assaultive.  His sleeping pattern was disturbed, his appetite diminished and he appeared chronically unhappy and agitated.

   Significantly also he had a long history of being a heavy drinker and violent husband and abusive and demeaning to his family for many years.  He had stopped drinking in February and despite his long record at abusiveness his family noted a dramatic change for the worse in this time, as did his extended family.  They have been hiding the knives, locking their doors and being in fear of their lives.”

5. A history was taken by Dr Pakrooh on 13 May 1996 on readmission to Liverpool Hospital as follows:

   “Apparently had ‘head injury’ at work on Feb. 14.  Felt odd, lost his balance etc for awhile.  Fully investigated by own doctor including CT scan which was OK.  Prior to this had been drinking heavily – and had been aggressive at times.  However since this, stopped drinking but behaviour became increasingly erratic.  Wife reports his constant anxiety re financial matters and not being able to buy new suit if his children got married.  (not even planning on getting married) constant thoughts of how it would be better if he were dead.  He often seemed to be talking to himself – waving a finger and shouting at someone regularly.  Waking up at 2-3 a.m. and just watching his wife sleeping standing over her or going into the children’s rooms and watching them.  Told wife it would be better if he killed them all.  At one point held a knife to his wife’s throat in front of the daughter.  For months was anxious, could not be bothered with washing eating sleeping erratically.  On morning of suicide attempt woke up with seemingly lots of energy and enthusiasm.  Said it was a wonderful morning and life would be wonderful from then on etc etc.  Very well thought out suicide attempt – spent morning making hook to hang himself on in shed.  Patient currently not expressing suicidal ideas. Feels sorry that his daughter found him and the distress he’s caused her.”

6. On 17 May 1996 the following history was taken from the worker’s wife, at Liverpool Hospital, under the heading “Gardiner/Rehab”:

   “Problems commenced after injury at work when he hit his head 14.2.  Not returned to work since that time.  No loss of consciousness associated with head injury but patient stated by wife to have experienced confusion, memory difficulties and unsteadiness.  He was not able to return to work and his condition appeared to have become worse as he became more depressed and anxious.  The hanging episode took place on 27.4.96.  He was noted in RPA to have problem with orientation, sequencing and ? and had considerable ataxia requiring assistance.”

7. The social worker’s notes at the same hospital of 4 June 1996 are in part as follows:

   “Seen with wife and later his wife was seen by herself. Mrs Formica told me that her husband’s health has not been good for the last two years, e.g. diabetes, high blood pressure etc.  Their LMO is evidently prepared to recommend him for the Disability Support Pension.”

8. On 12 June 1996 the following is recorded in the social worker’s notes under the heading “work”:

   “Fitter and turner in a factory – heavy type of work with machines.  Lots of S/leave in the last 2 years.  States had medical problems with diabetes, his eyes etc.  There is a claim for Compensation at work (not reported on day of incident).  difficult to know what the outcome will be.”

9. There is a statutory declaration from Mrs Formica dated 18 December 2003.  At that time she said the worker was residing in a nursing home as he required full-time care.  On 14 February 1996 the worker had informed her that he injured himself at work that day.  She said that up to the date of his injury he spoken English well, however his reading and writing skills in English were limited.  In the early 1980s the worker started to take blood pressure tablets and was taking medication for diabetes.  She recalled his coming home from work at the end of the day on 14 February 1996.  He came home at approximately 6 p.m. and informed her that he had hit his head on a drill machine and that his head was sore.  He said his accident had occurred in the morning.  Following the accident he felt dizzy and sick and later in the day the dizziness caused him to lose his balance.  She recalled looking at his head when he came home and he told her about the accident. She noticed redness on the side of his head where he said his head had struck the machine.  She recalled the next morning when her husband went to get out of bed he was unable to stand steadily on his feet.  Within a few days she went with her husband to see Dr Reddy to obtain medical treatment and was present in the surgery when Dr Reddy examined him.  Mrs Formica said she read the report of Dr Reddy of 13 May 1996 and Dr Reddy in her presence had informed her husband to continue to take time off work.  He, at that stage, was complaining that he had an ache in his head and that was feeling dizzy.  He had not returned to work since the accident.  After attending Dr Reddy she says the worker continued to complain of head pain and grew despondent.  Up to the date of his accident she said that he had been an outgoing and cheerful man but following the injury he became withdrawn.  She made arrangements to return to Dr Reddy with her husband to discuss his complaints of head pain and his emotional state.

10. On 27 March 1996 she went with her husband to see a psychiatrist, Dr Tsang, and was present at Dr Tsang’s first examination of him.  She also spoke to Dr Tsang and answered his questions.  She said her husband would not go out as before, he was withdrawn and would make the same comments over and over again.  He was frequently crying and had become completely different to the way he was before his accident.

11. She related the events of 26 April 1996 when he attempted suicide.  It is not necessary, I think, to set out those details here.  She said that before the suicide attempt she had noticed a worsening in her husband’s emotional health.  Before the 26 April he had said that he wanted to kill himself and he reported this to Dr Reddy and Dr Tsang.  She set out the difficulties her husband had with speech and walking.  She said his memory was poor and he needed assistance to shower, dress and eat.  He complained of problems with his vision.

12. There was a supplementary statement from Mrs Formica which, it appears, was received into evidence by the Arbitrator.  It is not with the papers and in relation to this, the worker’s counsel said this at the arbitration hearing:

    “In addition to that material relied on was a subsequent brief statement from Mrs Formica which was forwarded directly.  As it transpires, not much turns on that, because, on my understanding, you will have in evidence before you, if not already, the application for compensation claim form which was completed in February of 1996 and the employer’s report of injury form.  The only real matters that Mrs Formica’s supplementary statement goes to concerns the awareness of the employer in respect to the injury itself, and now that that is clarified the documentation from the employer that the claim was made and the employer has self-completed a report of injury form, which is dated – the employer’s report of injury form – signed by D. Batchen is dated 15 March 1996.”

    In view of this statement by counsel I do not consider that the absence of the later statement prevents the determination of this appeal.

Evidence on behalf of the Employer

1. Attached to the reply lodged on behalf of the employer are a number of medical reports, a discharge summary, correspondence and clinical notes.  Professor J McLeod, neurologist, saw the worker on 20 January 2004.  He obtained a history that the worker had had non-insulin dependent diabetes since 1982 and hypertension since 1987.  He was a permanent resident then at Scalabrini Village.  The Professor noted that the worker’s wife and an Italian interpreter were present.  He obtained a history of the injury on 14 February 1996 and his consulting Dr Reddy and Dr Presgrave.  Professor McLeod noted that the worker had partial loss of vision in both eyes and a tremor in his hands which was worse if he was anxious.  He required a walking frame and needed help showering, dressing and cutting up food.  The worker was forgetful and could not read or watch television.  His concentration was poor but he did not suffer from headaches.  He complained of constant dizziness but did not have tinnitus or deafness.  His sense of smell and taste were intact. 

2. On examination, the worker was sitting in a chair and understood and spoke a little English and appeared orientated.  Professor McLeod’s opinion was that the worker had had a minor head injury at work on 14 February 1996 with no loss of consciousness.  He noted that the worker had been seen on two occasions by a neurologist, Dr Presgrave, who found no abnormality on physical examination. CT brain scan was normal.  However, Professor McLeod noted that the worker was severely depressed following the workplace injury and he thought he had probably been depressed prior to the injury.  He attempted to commit suicide by hanging and following his attempt was unconscious for a period of about three days and made a gradual recovery in RPAH.  The worker had undoubtedly suffered an anoxic episode as a result of the hanging.  There were two strokes about 18 months after the attempt at hanging, however the worker had risk factors for stroke, namely hypertension and non-insulin dependent diabetes and Professor McLeod attributed the strokes to these causes.  He thought there was no relationship between the injury at work and the strokes.

3. Dr Yolande Lucire, a psychiatrist, saw the worker at Scalabrini Village on 5 July 1997.  The worker’s wife was also present.  Dr Lucire obtained a history of the injury and his asking his wife to make soup when he got home as he said he was going to bed.  He said he woke again at 5 the next morning and fell down and felt there was something wrong.  He went to see Dr Reddy on the first occasion attributing his poor balance to unsteady blood sugar.  Dr Reddy gave him some tablets but the balance problem persisted and, according to his wife, he behaved as if he were disoriented.  She obtained a history that on 19 February the worker went to the doctor who checked his blood sugar and told him that it was alright.  On this occasion the worker told the doctor about the bump on the head and the doctor sent him to Dr Presgrave.  Mrs Formica, Dr Lucire said, was very dissatisfied with her husband’s consultations with the neurologist Dr Presgrave.  She told Dr Lucire that by the time the worker got to the neurologist he was very confused and barely able to speak English, having regressed into Italian.  As well as that he was confused whenever he left home and quite lost.  He was also unsteady on his feet and needed to lean on her complaining of dizziness.  Mrs Formica reported that Dr Presgrave was quite irritated by her husband and that he ordered him to go back to work.

4. At this time the worker and his wife and family were in the process of building a project home on land they had bought a year earlier.  The worker could not cope with the stress and became angry with his wife very easily if she put any responsibility onto him.  He was leaving all the decisions up to her.  About a month after the fall Mrs Formica said she noted the husband was becoming depressed and by the time they saw Dr Presgrave again he was extremely depressed.  At that stage she said she was constantly scared of him.  He had lost interest in everything and would not go out.  He had stopped eating and lost a lot of weight.  He was continually angry with the family and if they turned the television or radio on he would turn it off, whereas formerly he had been a sociable and music-loving man.  They had then attended Dr Tsang about a month after the accident and at that time the worker had started talking about suicide.  This possibility was discussed with Dr Tsang.  Mrs Formica had wanted to have her husband hospitalised but Dr Tsang asked him and he was not keen.  After the suicide attempt the worker had been admitted to the Liverpool Hospital and then RPAH.  Mrs Formica told Dr Lucire that, at that time “they found a blood clot on his head”.

5. Dr Lucire sought information as to the worker’s condition after he hit his head and before depression had set in.  Mrs Formica said that he was confused every day, particularly confused if they went out.  She said that he was less confused then, although sometimes he forgot things.  Mrs Formica told her “I had to dress him.  When we went to see the doctor he was unbalanced and I had to hold him.  The neurologist was cranky because Bruno couldn’t speak English”.

6. Dr Lucire was told that the worker had a substantial medical history.  He had been a diabetic for 17 years with his blood sugar controlled by tablets.  He had had high blood pressure and was under the care of his doctor whom he attended each week or so and who checked his blood sugar regularly.  He also had problems with his eyes, glaucoma in the right eye and had needed a few days off to have laser treatment.  Two, three or four years before, Mrs Formica could not remember exactly when, the worker had an episode of chest pain while on holidays.  He went to see a cardiologist who practised in Strathfield and Parramatta who was thought to be Dr Ritchar.  The worker had cardiograms and a stress test.  It was suggested that angiography should be carried out but this was not done.  Dr Lucire understood that the worker visited the cardiologist for three or four months.

7. On examination Dr Lucire noted that the worker had an obvious facial palsy secondary to the stroke.  It was hard for him to speak clearly, although he claimed to understand all that she asked.  His memory was affected.  Once or twice he made up a plausible answer which his wife corrected.  He was mistaken as to what day it was.  He could not name the month but knew that it was winter.  He could not calculate at all.  He could not recall some of his medical history and could not calculate dates.  He was still depressed but sleeping better, especially with medication.

8. Dr Lucire was unable to formulate an accurate diagnosis in the case.  The history given was of a man who had worked ten hours a day before he hit his head and was both cognitively impaired and possibly ataxic after he hit his head.  Dr Lucire thought it would be necessary to examine the general practitioner’s notes and the neurologist’s notes made at the time, to determine the differential diagnoses of Mr Formica’s condition at that time.  She thought it was indeed a large differential diagnosis.  She thought it could be that the bump on the head was simply a “red herring” and the worker had entered into a period of unsteady blood sugar, leading to episodes of loss of balance and cognitive impairment.  She thought it could be that he had some sort of stroke following the bump on the head but this was unrecognised and the clot on his brain referred to this.  Dr Lucire thought that the worker was almost certainly a vasculopath which, she went on to say, meant that after 17 years of diabetes and hypertension his arteries were probably not in very good shape.  The cardiologist’s records would have shown if his heart arteries were affected.  The more recent stroke which had nothing to do with the previous episode was evidence of this vascular insufficiency and proneness to vascular problems.  She thought the relationship between the bump on the head and the period of cognitive impairment and loss of balance that followed immediately upon it was a matter for the expert opinion of a neurologist. The depression appeared to have been secondary to the cognitive impairment and the suicide attempt and further degeneration had followed that.  The more recent stroke appeared to be a manifestation of underlying vasculopathy.

9. Dr Reddy reported on 13 May 1996 to the employer’s workers compensation insurer.  He said he had seen the worker on 19 February 1996 when he was complaining of dizziness.  The worker then informed him that he had sustained a head injury at work on 14 February when he bumped his head on a drill machine.  He had continued working but after lunch that day he had felt dizzy and had loss of balance.  As symptoms recurred the worker had consulted him.  On examination no neurological abnormality was found.  The worker had hypertension and diabetes for which he had been taking medication.  Dr Reddy referred the worker to Dr Presgrave for a further assessment and he noted that CT scan of the brain and ENG and caloric studies were reported as normal.  Dr Reddy reassured the worker that he had not suffered any neurological injury.  Subsequently the worker had seen him regarding his diabetes, hypertension, hyperlipidaemia and depression.  He was referred to his previous cardiologist and later to a psychiatrist.  Dr Reddy had advised him to retire from employment because of his multiple medical problems.

1. A Discharge Summary of 21 June 1996 from Liverpool Hospital is as follows:

   “This 53 year old Italian man was transferred to the Mental Health Unit from RPA after a suicide attempt by hanging.  He and his family report 6 months of low mood culminating in bizarre behaviour with psychotic features.”

   This Discharge Summary is signed by the same Dr Pakrooh to whom I referred in paragraph 30 .

2. There is a letter of 12 June 1996 signed by Dr John Baker of Liverpool Hospital.  It is unclear to whom this letter is addressed.  The relevant part of that letter is as follows:

   “This unfortunate man had no prior history of psychiatric illness.  However during the first part of 1996 Mr Formica developed a Major Depressive Disorder, which unfortunately led to an attempted suicide by hanging.

   The patient’s only sequeale [sic] to this episode has been persistent pain in his neck and left shoulder.”

3. At a later stage the employer’s solicitor sought to rely on additional documentation, including the employer’s and employee’s compensation claim forms, both signed by the employer on 15 March 1996.  There is a report of Dr Presgrave dated 29 February 1996 to Dr Reddy which is as follows:

   “His CT scan of the brain with and without contrast was normal and his cervical spine X-rays showed some narrowing of the C5-6 discs with minor narrowing of the neural exit foramina at this level more so on the right.  His ENG and caloric studies were normal.

   Bruno continues to complain of a pressure sensation in the head and non-specific dizziness.  He has not returned to work since the accident.

   These symptoms can be expected to improve gradually with time over the next one or two months, however he needs to make a formal accident report to his employer so that his employer’s insurance company can initiate a rehabilitation program and in particular a graded return to his normal work activities.  I think that Bruno is keen at this stage to return to work.”

4. There are medical certificates of Dr Reddy dated 15 February 1996, 19 February 1996, 22 February 1996, 29 February 1996, 8 March 1996 and 15 March 1996.  There is a WorkCover medical certificate from Dr Reddy dated 18 March 1996 relating to unfitness for work from 19 February 1996 to 2 March 1996.

5. In the first certificate dated 15 February 1996 Dr Reddy certified the worker unfit to work from 15 to 16 February 1996 since he was suffering from “hypertension/diabetes”.

6. On 19 February 1996 Dr Reddy certified the worker unfit from 19 February to 2 March 1996 and in the doctor’s opinion the worker was suffering from a head injury.

7. On 29 February 1996 Dr Reddy certified the worker unfit from 4 to 9 March 1996 with “hypertension/diabetes” and on 8 March 1996 Dr Reddy certified him unfit from 8 March to 16 March 1996 with “hypertension/diabetes”.  On 15 March 1996 once more he certified him unfit from 15 March to 29 March 1996 with “diabetes/hypertension”.

SUBMISSIONS

On behalf of the worker before the Arbitrator

1. It was submitted on behalf of the worker that he had struck his head on 14 February 1996 (this was conceded by the employer ultimately) and, for the rest of that day and following, suffered symptoms of dizziness causing him to lose his balance.  It was conceded that some question would arise as to whether Dr Reddy, on15 February 1996, when he saw the worker, took any history of head injury but it was submitted that he certainly did this by 19 February 1996.  It was further conceded that there was a background of diabetes and hypertension, raising some concern as to whether the dizziness arose out of those conditions.  It was submitted that the evidence from Mrs Formica was that the worker was complaining about having hit his head from 14 February 1996 onwards.  Some of the certificates of Dr Reddy referred to head injury while some referred to hypertension and diabetes.  It was pointed out Dr Tsang, when he first saw the worker, diagnosed significant depression on 27 March 1996.  This was a case of total incapacity because of the depression and the effects of the attempted suicide.  It was submitted that the Arbitrator did not have to make any findings as to the connection between the stroke which the worker suffered and the after effects of the suicide attempt because by the time the stroke occurred the worker was totally incapacitated and the stroke was irrelevant.  It was pointed out that there was no requirement that employment be a substantial contributing factor to the injury (section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) since the injury occurred prior to the commencement of that amendment. This was agreed by counsel on behalf of the employer to be the case. Dealing with the report of Professor McLeod, it was submitted that, if there had been a prior depression, as the Professor probably thought had been the case, the nature of the injury was a triggering episode of the depression which the worker suffered.

2. It was submitted that the medical record in relation to his transfer from Royal Prince Alfred Hospital contained a family report of six months of low mood culminating with bizarre behaviour and psychotic features which were said to take that history back to the February period.  It was pointed out that the worker’s wife said that he was “pretty well together before the episode in February 1996”.  Dr Baker in his letter of 12 June 1996 was said to have taken no prior history of psychiatric illness.  Counsel then dealt with the long history of the worker having been a heavy drinker and violent husband, and being abusive and demeaning to his family for many years.  He had also stopped drinking in February (of 1996).  There was said to be a “bit of a muddled history” about all of this but none of that was said to be consistent with what the worker’s wife had said in her statutory declaration as to the worker’s demeanour and mood before the injury in February 1996.  It was said that the clear evidence which came from the worker’s wife’s statutory declaration and which was consistent with his work history, nothing to the contrary having emerged from the respondent, was of a man who worked for five years with no obvious signs of difficulty carrying out his work.  The nature of the worker’s mood prior to February 1996 was said not to show up in any medical records prior to February 1996.

3. In summary, it was submitted on behalf of the worker that a work injury had been established carrying on from 14 February 1996 from which he had physical symptoms of dizziness and complaints of head problems immediately thereafter.  He was treated for those symptoms by February 1996 by his doctor and there was a clear history of head injury taken by that doctor on 19 February 1996.  It is said that he soon thereafter developed a significant new problem as verified by Dr Tsang’s account of having seen him by May [sic] of 1996.  Thereafter the worker, it is said, went down a difficult path of incapacitating depressive illness during which he suffered a stroke.

4. After the employer’s counsel had addressed, further submissions were made on behalf of the worker.  In these submissions reference was made to the failure of the employer to call any evidence as to the worker’s capacity for employment being significantly affected prior to 14 February 1996.  It was further submitted that evidence was readily available from Dr Reddy which might assist the employer, however that had not been placed before the Arbitrator.  Once again reference was made to the unchallenged evidence of the worker’s wife contained in her statutory declaration.  Any suggestion in the medical evidence that the worker’s diabetes was uncontrolled was denied.  It was submitted there was no suggestion that the worker had a major depression prior to the date of injury because any major depression would have interfered with his work capacity.  It was submitted that this was not a matter in which the Arbitrator would be deterred from finding for the worker by the mere fact that on the first day the doctor really saw the worker he gave him a certificate for diabetes and hypertension.  This was said to have been overtaken by the doctor’s considered view of the matter in his later report and by his referral to Dr Tsang who was said to be the doctor of most significance in the case.

On behalf of the employer before the Arbitrator

1. It was conceded that the worker had suffered an injury at work when he struck his head.  However it was said that its consequences were nothing like those suggested on behalf of the worker.  The point was made that an expert’s opinion was only as good as the historical facts which the expert used to ground his opinion.  There was said to be no “hard physical evidence” of physical disability as a consequence of that head injury.  However, there was a history of complaints.  It was submitted that those complaints seemed to be multi-factorial.  The absence of material from Dr Reddy was relied on.  However, the evidence of the prior situation was said to come from a record of the worker’s wife speaking to a social worker at Liverpool Hospital in June 1996.  This referred to Dr Reddy having recommended the worker for a disability pension.  Reliance was placed upon the further statement attributed to the worker’s wife that “From early 1980s Bruno started to take blood pressure tablets and was taking medication for diabetes that was not insulin dependent”. 

2. The employer’s counsel went to Dr Presgrave’s report and the history taken by him of nausea and vertigo.  Reference was made to the somewhat changed history given to Dr Tsang compared to that given to Dr Presgrave.  In the latter, there was no reference to the worker having fallen down on 14 February 1996 however, there was in the psychiatrist’s report.  Nor, it was said, was there a prior history of vomiting taken by Dr Presgrave, although such a history was given to Dr Tsang.  The history taken by Dr Tsang referred to the worker’s drinking to excess in the past and not taking good care of his diabetes, as well as his deteriorating eyesight.  Dr Tsang went on to say that the worker used to drink some alcohol each night to relax but had to give this up because of uncontrolled diabetes and had been feeling worse and since doing so.  Counsel then addressed on the handwritten report of Dr Blackwell of 13 May 1996 which referred to the worker and his wife deciding earlier that year to build a new house which decision, it was said, appeared to have weighed heavily on the worker.  There was confirmatory history of the worker stopping drinking in February at which time his family noted a dramatic change for the worst .  It was said that the worker was a man who had significant problems although he was going to work.  Financial problems were weighing upon him, he was in a position where his basic health, diabetes and so forth, was uncontrolled.  Then there is reference to what the worker’s wife told social workers at the hospital including the reference to the worker having lots of sick leave in the preceding two years with medical problems, diabetes and poor eyesight.  It was said there was a familial history of mental disturbance of which only the worker would have been aware.  The certificate of Dr Reddy of 15 February 1996 was dealt with at length since it did not refer to any work injury but simply dealt with diabetes/depression.  It was pointed out that even after a history of head injury had been received, Dr Reddy certified him unfit on 8 March 1996 on the basis of hypertension and diabetes rather than the head injury.  This occurred again on 16 March 1996.  All investigations of the head injury were reported as normal.  The opinions of Dr Tsang and Dr Presgrave were said to have been “very guarded”, however, they had become stronger as time went by.  This is said to have been aided by the worker’s wife’s recollection of events conveyed to those doctors some time afterwards.  It was submitted that the worker had not discharged the onus of proving that the incident at work was an ingredient in his incapacity on a continuing basis.  Counsel pointed out that the worker’s counsel had not dealt with the suicide attempt in his submissions.  It was said that the medical evidence was not sufficient to meet those matters which had to be established in order to render a suicide attempt a consequence of an earlier injury.

REASONS FOR DECISION BY THE ARBITRATOR

1. The issues were stated by the Arbitrator to be:

   ·Did the Applicant receive an injury arising out of or in the course of employment?

   ·Did such injury extend to the severe depression subsequently developed by the Applicant?

2. The Arbitrator set out the evidence which was before him and summarised the medical evidence.  The Arbitrator noted the submissions made by counsel on behalf of the parties.  On behalf of the worker it was submitted that there was a continuum of events from the striking of the head and resulting dizziness to mood problems and concern about inability to return to work with the financial consequences of this leading to the diagnosis of a Major Depression all in the space of six weeks.  Any prior problem with drinking, health problems or any mild depression had not been such as to prevent the applicant from working up to the date of his injury on 14 February 1996.

3. On behalf of the employer it was conceded that the worker suffered a head injury on 14 February 1996 and lost some time off work and incurred medical expenses.  It was not conceded, however, that this head injury had led to the subsequent Major Depression.  It was submitted that the experts’ reports were only as good as the histories given and the histories provided by Dr Tsang in his reports and by the worker’s wife in her statements so changes over time compared to the records taken contemporaneously with the accident.  As recollections could change with time, it was said that it was preferable to rely on the contemporary histories rather than those related later.  These included records of statements given by the worker and his wife to medical professionals.  It was submitted that Dr Reddy, the treating general practitioner, had known the worker for 15 years and was best placed to assess the worker following his injury.  On the day after the injury to the head he had certified the worker unfit for work, suffering from hypertension and diabetes.  It was not until he saw the worker four days later that he certified his suffering a head injury and later unfitness for work for two weeks.  This was followed by a letter three days later advising that the worker had been referred to a neurologist and was awaiting further tests.  After the report of Dr Presgrave on 29 February 1996 Dr Reddy reverted to certifying the worker being unfit for work due to hypertension and diabetes in subsequent certificates.  There was however one WorkCover medical certificate dated 18 March 1996 in which Dr Reddy certified the worker unfit for work from 19 February 1996 to 2 March 1996 but not from 15 February.  It was said on behalf of the employer that there were other contemporary documents pointing to severe ill-health and a lot of time off work for the preceding two years due to diabetes and hypertension.  They gave a history of a drinking problem that caused a deterioration of his diabetes and affected his eyesight, abusive conduct, depression commencing in December 1995 or January 1996, a change in behaviour upon ceasing drinking in February 1996 and from natural worries with the decision to build a new house.  The worker’s medical specialist’s opinions were based on histories not fully reflective of or supported by histories in the contemporary documents.  It was put that in his first report of April 1997 Dr Tsang could only say that the work head injury “appeared to have acted as a precipitating event” and that he was not certain.  It was submitted that on the balance of probabilities the worker had failed to establish that the work injury was the cause of the worker’s Major Depression.

4. The Arbitrator indicated that he was satisfied on the evidence before him that the worker had suffered an injury to his head on 14 February 1996 while at work.  Based on the WorkCover and other medical certificates of Dr Reddy, the worker was totally unfit for work from 19 February 1996 to 2 March 1996 but the Arbitrator was prepared to accept that that period should be backdated to 15 February 1996.  Medical expenses incurred with Dr Reddy, Dr Presgrave and tests ordered by Dr Presgrave in the period from 15 February 1996 to 2 March 1996 and further examination by Dr Presgrave on 28 March 1996 were necessarily incurred arising out of the work injury.  The Arbitrator went on to note the submission on behalf of the worker that the evidence established a causal link between the work head injury and the Major Depression diagnosed six weeks later.  The Arbitrator records that the worker’s counsel invited him to find that the Major Depression was “a personal injury arising out of or in the course of employment”.  The Arbitrator considered the evidence which he said at  [24] indicated that the worker:

   ·had suffered bad health for about two years prior to June 1996, with “lots of sick leave”, due to diabetes, high blood pressure and hypertension (per worker and his wife, 4/6/96 and 12/6/96, reported in social work notes, Liverpool Hospital);

   ·had a long history of being a heavy drinker (Dr Blackwell, 13/5/96);

   ·had drunk to excess and did not take care of his diabetes – as a result his eyesight deteriorated (Dr Tsang 26/4/97);

   ·had suffered 6 months of low moods (Dr Pakrooh, 21/6/96);

   ·was prone to be mildly  depressed in the past and drank at nights to relax (Dr Tsang, 26/4/97);

   ·in early 1996 had decided with his wife to sell and build a new house, a decision which appears to have weighed heavily on the applicant (Dr Blackwell, 13/5/96); see also Dr Tsang 26/4/97 where he was worried about losing both present and new houses and about his children’s future;

   ·had stopped drinking in February 1996 resulting in a dramatic change for the worse in behaviour (Dr Blackwell, 13/5/96);

   ·had given up drinking each night because of his uncontrolled diabetes, has been feeling worse since (Dr Tsang, 26/4/97);

   ·had suffered an injury to his head at work on 14 February 1996;

   ·was certified by Dr Reddy, his GP on the next day as suffering from hypertension and diabetes;

   ·was certified by Dr Reddy on 19/2/96 and 22/2/96, as suffering from his head injury, sent to a neurologist and found to be unfit for work until 2/3/96;

   ·was diagnosed as suffering no serious neurological disorder (per Dr Presgrave 29/2/96);

   ·was certified by Dr Reddy on 29/2/96, 8/3/96 and 15/3/96 as suffering from diabetes and hypertension and unfit for work until 29/3/96;

   ·had also been advised “to retire from employment due to his multiple medical problems” (Dr Reddy’s report 13/5/96);

   ·was also seen in this period by Dr Reddy regarding his hyperlipidaemia and depression and he was referred to his previous cardiologist and later to a psychiatrist (report 13/5/96);

   ·saw Dr Tsang on 27/3/96 and Dr Presgrave on 28/3/96, each of whom diagnosed depression; and

   ·in the 4 weeks prior to seeing Dr Tsang, he had lost interest in doing anything, he worried over the loss of both the current and new houses and the future of his children because he could not work, he suffered early morning waking after two hour’s sleep,had no energy, thoughts of death and of hardships in his life, no interest in hobbies, talked of  killing himself and had anxiety symptoms of shortness of breath and palpitations (Dr Tsang, 26/4/97); he became anxious and ruminatively depressed, held conversations with himself and behaviour became erratic, spoke of bankruptcy, became hostile and threatening, sleep patterns were disturbed, lost appetite and appeared chronically unhappy and agitated (Dr Blackwell, 13/5/96).

1. The Arbitrator noted Dr Presgrave’s view of the head injury as “a minor knock on the head associated with some scalp bleeding”. 

1. The Arbitrator further noted that, in Dr Tsang’s report of 8 August 2000, his opinion as to causation was not as tentatively expressed as it had been in his report of 26 April 1997 in that the words “appeared” and “mild” were no longer used to qualify his opinion.  The Arbitrator said that he was not persuaded by the later opinion which was based on the history that had been clarified over four years after the event.  This history placed more emphasis on the work incident and de-emphasised other problems both medical and concerns that the worker was facing at the time and some facts differed from contemporary histories.  As an instance, the history included a claim that the worker had blacked out and fallen at work in the late afternoon on the day of the head injury which he said was not a claim previously made in any of the histories taken.  He quoted Dr Presgrave’s history where he says that there had been a loss of balance transiently which had been associated with nausea.  The Arbitrator said he had difficulty accepting that the head injury was one of the precipitating events leading to the worker’s Major Depression.  He said the weight of evidence suggested that some factor other than the work injury had caused this illness (the Major Depression).  The Arbitrator summed up by saying that he was not satisfied that the worker had discharged the burden of proof to establish a causal link between the work injury to the head on 14 February 1996 and the Major Depressive illness diagnosed on 27 March 1996.  He said he was therefore unable to find that the Major Depression was “a personal injury arising out of or in the course of employment” within the meaning of section 4 of the 1987 Act.  Accordingly there was an award as I have set out in [6]

SUBMISSIONS, DISCUSSION AND DECISION

Submissions on behalf of the Worker

1. A number of grounds of appeal are relied on.  It is said that:

·the Arbitrator erred in law in concluding:

(a)that the worker’s incapacity beyond 2 March 1996 was causally unrelated to the injury of 14 February 1996; and

(b) that the worker’s entitlement to Section 60 expenses ceased as at 28 March 1996.

·the Arbitrator failed to provide reasons or adequate reasons as to why incapacity ceased as at 2 March 1996 and as to why entitlement of Section 60 expenses ceased on 28 March 1996;

·the Arbitrator’s decision was against the evidence and the weight of the evidence;

·the Arbitrator failed to consider the evidence of the worker’s wife as to the worker’s pre-injury health as far as may have been relevant to the issue of causation;

·the Arbitrator drew inferences unfavourable to the worker’s claim as to his pre-injury health from unsourced histories, and drew such inferences and circumstances where he failed to consider the worker’s wife’s evidence which conflicted with those histories, failed to identify the conflict and failed to provide reasons as to why the conflict was resolved against the worker;

·that the Arbitrator by failing to identify the worker’s wife’s evidence, failing to identify the conflict in the evidence and failing to allow the worker the opportunity to meet the unfavourable inference denied the worker procedural fairness.

1. In my view these grounds which overlap to some extent and which were are all said to be errors of law may be condensed to essentially four grounds, which are as follows:

   ·The Arbitrator failed to provide reasons or adequate reasons as to the findings which he made which were adverse to the worker.

   ·The Arbitrator failed to consider the evidence of the worker’s wife and gave undue weight to the details of the worker’s pre-injury health.

   ·The Arbitrator failed to give the worker procedural fairness in allowing the worker the opportunity to meet the unfavourable inference drawn.

   ·The Arbitrator’s decision was against the evidence and the weight of the evidence.

   I will deal with these matters separately

2. This appeal is in the nature of a review of the decision appealed against pursuant to section 352(5) of the 1998 Act.  As Deputy President Fleming said in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6 at [11] :

   “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)).”

3. As the same Deputy President went on to say in Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56 at [15]:

   “The error must be such that, but for it, a different decision should have been made (section 294 of the 1998 Act;  YG & GG v Minister for Community Services [2002] NSWCA 47; Absolon v NSW TAFE [1999] NSWCA 311). The jurisdiction of a Presidential member on appeal is to “review the decision of an Arbitrator. It is not intended that this review become a hearing de novo of the dispute (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6, Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7)”

Reasons

1. It is submitted on behalf of the appellant that the Arbitrator’s reasons did not state that the worker’s wife’s statutory declaration of 14 December 2003 and further statement of 21 December 2004 were in evidence.  This submission is incorrect since the evidence by the worker’s wife is specifically referred to by the Arbitrator in paragraph 11 of his reasons.  Reference is made to a number of cases in support of the ground of appeal regarding reasons.  These are:

   ·Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’);

   ·Pettit v Dunkley (1971) 1 NSWLR 376;

   ·Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 (‘Osmond’);

   ·Mark Wright v South Eastern Sydney Area Health Service (Sydney Eye Hospital) [2003] NSWWCCPD 25.

2. It is said that the Arbitrator failed to identify the conflict in the evidence and failed to discuss the reasons for his preference of inferred and unsourced evidence over alternative express evidence.

3. In response to this the employer submits that the Arbitrator’s reasons clearly set out his consideration of all the relevant evidence.  It is said that his finding was not that incapacity ceased but rather that the worker had failed to discharge the onus of proving that any incapacity beyond 2 March 1996 was causally related to the alleged injury.  It is further said that the reasons for decision set out the evidence tendered on behalf of the worker and the employer and made particular reference to the importance of contemporaneous records of the treating doctors on the question of causation.

4. The Arbitrator recorded at [24] of his reasons the matters which he relied on in making the finding which he did.  I have set these out at length in paragraph 63.  It is true that the Arbitrator did not deal in any real way with the evidence given by the worker’s wife.  That evidence was contained in a statutory declaration obtained almost eight years after the relevant events and a further statement made almost nine years after.

5. In [26] and [27] the Arbitrator referred to the opinion contained in Dr Tsang’s report of 8 August 2000.  The Arbitrator said that he was not persuaded by the later opinion because it based on a history that had been “clarified” over four years after the event.  The Arbitrator gave instances of the greater emphasis placed on the work incident on these later occasions.  This is a tragic case as must have been appreciated by the Arbitrator none the less the Arbitrator was clearly entitled to prefer the evidence contained in contemporaneous medical reports and notes to that provided by the worker’s wife as an interested party many years later.

6. As to the alleged failure of the Arbitrator to identify the conflicting evidence and give reasons as to how it was resolved, upon a reading of the submissions made by counsel, this issue was fully canvassed before the Arbitrator and he gave reasons for deciding as he did.

7. Mahoney JA in Soulemezis at 269 referred to three conclusions which he took from the statement of Gibbs CJ in Osmond:

   “First, the reasons given must be sufficient, where there is a right of appeal, to allow that right to be exercised.  Secondly, the giving of reasons is not limited to cases where there is a right of appeal:  there are reasons in the nature of the judicial process which may require that reasons be given as an incident of the decision in question.  And, thirdly, the giving of reasons is a normal but not a universal incident of the judicial process:  there are some cases, or kinds of cases, where they need not be given.  In so far as it may be relevant for me to do so, I would agree with each of these and see them as applicable in determining what reasoning of fact a judge is under pain of error of law, required to set forth in his judgment.”

8. His Honour then referred to his decision in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385. After referring to the duty of a judge to state his reasons for deciding as he did his Honour in that case went on to say the following:

   “However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding.  It is not the duty of the judge to decide every matter which is raised in argument.  He may decide a case in a way which does not require the determination of a particular submission:  in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing:  R v Barnet London Borough Council ; Ex parte Nilish Shah [1983] 2 AC 309, at 350.”

9. His Honour continues at 271 in Soulemezis to say the following:

   “In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along with the chain of reasoning to that conclusion.”

10. In the same case McHugh JA said the following (at 280):

    “If an obligation to give reasons for decision exists its discharge does not require lengthy or elaborate reasons:  Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 and 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.”

11. There is nothing in the cases cited which causes me to conclude that the Arbitrator erred in failing to give reasons for making the factual findings which he did.  This ground is not in my opinion established.

Evidence

1. This is concerned in part with the evidence of the worker’s wife to which I have earlier referred and also the failure of the employer to go into evidence as to the worker’s pre-accident attendance at work.  It is said additionally that there was a breach of the rule in Browne v Dunn (1893) 6 R 67 as interpreted by the Court of Appeal in Boston Clothing Pty Limited v Margaronis (1992) 27 NSWLR 580 (‘Margaronis’).  Reliance is placed on the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298 in relation to the lack of evidence from the employer.

2. As originally expounded, the rule in Browne v Dunn related to the failure of counsel to cross-examine a witness on matters in respect of which contradictory evidence was to be given.  As a matter of fairness to the witness it was said that these matters ought be put so that the witness could deal with that evidence.

3. The question of the rule in Brown v Dunn has recently been considered by Deputy President Roche in Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355(‘Rafiq’) at [30] and following. As he pointed out in that case, the rule does not require that matters about which notice has already been given need be put in cross-examination and the authority for that is the Court of Appeal decision in Daw v Toyworld Pty Ltd (2001) 21 NSWCCR 389. The Deputy President also referred to the decision of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 wherein he identified two aspects of the “rule” in Browne v Dunn.  These were said to be firstly “a rule of practice or procedure, based upon general principles of fairness” and the second was described as “a rule relating to the weight or cogency of the evidence”.

4. As the Deputy President pointed out in Rafiq at [31]:

   “Neither ‘rule’ can be strictly applied in the Commission because all evidence must be filed with the Application or the Reply and late evidence is only allowed by leave.  The issues to be determined are, or should be, set out in those documents or at the teleconference stage of the proceedings.  Cross-examination is only allowed in limited circumstances (see Electrolux Home Products Pty Limited v Richey & Email Limited [2006] NSWWCCPD 242).”

5. The President of the Commission, Sheahan J, considered the question in Castree v Jimari Pty Ltd t/as Hazlebrook Post Office [2004] NSWWCCPD 69 at [53]and following. His Honour referred to the Court of Appeal decisions in Margaronis and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 (‘Davis’). He also referred to the High Court decision of Re Minister for Immigration and Multicultural Affairs; Ex parte s154/2002 [2003] HCA 60 in which the High Court held that the rule in Browne v Dunn had no applications to proceedings in the Refugee Review Tribunal as the Migration Act 1958 (Cth) provided that the rules of evidence did not apply to that Tribunal. The High Court noted that the application of Browne v Dunn would be problematic in a Tribunal where proceedings were of an inquisitorial rather than adversarial nature.

6. In Margaronis Kirby P referred to the Browne v Dunn principle and extended it to require the Commissioner hearing the case to draw suggested inconsistencies which were troubling him on the medical records to the notice of the worker’s counsel.  There was however in that case a failure to cross-examine as to these matters.  Similarly in Davis there was a failure to raise a factual issue by cross-examination and that issue was relied on by the trial judge in finding against the plaintiff.

7. This case was not one in which the worker’s wife gave evidence.  There was no application by the worker’s counsel that she should do so, nor was an application made by counsel for the employer to cross-examine her on the statements she had made.

8. Section 354 of the 1998 Act relates to the procedure before the Commission and provides in part that the Commission is not bound by the rules of evidence (section 354(2)). However, rule 70 of the Workers Compensation Commission Rules 2003, which were in force at the relevant time, provided:

   “When informing itself on any matter, the Commission is to bear in mind the following principles:

   (a)       evidence should be logical and probative,

   (b)       evidence should be based on the facts in issue and the issues in dispute,

   (c)evidence based on speculation or unsubstantiated assumptions is unacceptable,

   (d)      unqualified opinions are unacceptable.”

   Rule 15.2 of the 2006 Rules is in identical terms.

9. Precisely how the provisions of section 354 of the 1998 and rule 70 are to be reconciled is a matter for debate. Arguably the principles underlying the rules of evidence would give some assistance in determining what evidence is logical and probative.

10. As was noted by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 :

    “24.In the Workers Compensation Commission Rules 2003 made under the WIMWCA the principal means of the principal means of approaching the Commission is an application to resolve the dispute (Rule 37). The parties are required, within limited times, to lodge and serve all the information and documents on which they propose to rely and to make statements revealing the specific nature of their evidence and other material related to producing it (Rules 38 and 42).

    25.The requirements of the rules for information to be lodged in advance and for statements revealing the cases of the parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way. …”

11. In this case, although it is doubtful in my view, whether the rule in Browne v Dunn applies, I do not consider that it has been breached.  I say this because it is clear from the transcript of submissions that the conflict between the worker’s wife’s statement and statements made in other evidence was referred to and counsel for the worker addressed on this very matter.  The worker’s solicitor had been acting for him since 1997.  I have taken this from Dr Tsang’s report dated 26 April 1997 addressed to that solicitor.  There was no attempt made in the worker’s wife’s statutory declaration of 18 December 2003 to answer the statements made by Dr Tsang in his earliest report in relation to her husband’s health and his concern that because of this he might not be able to return to work.  Similarly, no attempt was made in that declaration to refute the various statements which are recorded in the notes of Liverpool Hospital and which are attributed to her. 

12. The Jones v Dunkel point may I think be disposed of relatively shortly.  It is said that the failure of the employer to call available evidence as to the worker’s pre-injury health and attendance at work would have entitled the Arbitrator to infer that the calling of such evidence would not have advanced the employer’s case.  The response of the employer to this is that it was not appropriate for the Arbitrator to draw any inference adverse to it by its failure to call further evidence to demonstrate inconsistency between the evidence of the worker’s wife and that contained in the hospital notes and the reports of medical practitioners.

13. There may have been a number of reasons why evidence was not put on from the employer in relation to this issue.  There were a number of statements made in the medical and hospital records in relation to this.  It is not incumbent in my view for a party to adduce additional evidence where there is already some evidence of the matters on which the party wishes to rely.  There were a number of deficiencies in the evidence in this case, not the least of which was in relation to the general practitioner, Dr Reddy.  Apart from a brief report and some medical certificates from that doctor, there was no evidence obtained from him as to the worker’s pre-injury health and treatment.  In particular, it is not clear when it was Dr Reddy gave the worker the advice to which reference is made in his report of 13 May 1996 to retire from employment because of his multiple medical problems. It was clearly open to the worker to have obtained a report from that doctor in relation to this issue. The Arbitrator drew no inference adverse to the worker from the absence of such report, nor do I.

14. I do not think that this ground has been made out.

Procedural Fairness

1. I consider that this has already been adequately dealt with in relation to the first two grounds of appeal and were it to be considered separately the worker must fail on this ground also.

The Factual Finding of the Arbitrator

1. To some extent this has been dealt with in relation to the preceding grounds of appeal.  However it is said that the finding made by the Arbitrator was “glaringly improbable” (Southerland Shire Council v Dietz [2004] NSWCA 53 at [94]).

1. The Arbitrator was required to determine whether the worker’s incapacity “results from” the injury of 14 February 1996.  That phrase was considered in Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796. At 810, Kirby P said the following:

   “The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts.  Whether death or incapacity results from a relevant work injury is a question of fact.  The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted.  By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury.  What is required is a commonsense evaluation of the causal chain. …”.

   That decision has been applied in many cases since.

2. The employer relies upon the decision of Deputy President Fleming in Liverpool City Council v Trovato [2004] NSWWCCPD 15. The relevant sentence at [49] is as follows:

   “It is entirely a matter for the Arbitrator as to what weight to accord the evidence before her, but a decision against the weight of the evidence would be an error of law, and contrary to the requirements of Rule 70.”

   It is undoubtedly an error of law to make a finding on an issue in favour of the party having the onus of proving that issue where there is no evidence to support such finding. In other cases it may, in my opinion, only be an error of fact apart from the class of cases in which facts found necessarily fall within a statutory description. The High Court considered the question in some detail in Vetter v Lake Macquarie City Council (2001) 202 CLR 439. It is not I think necessary for the resolution of this appeal to do so now.

3. This was a matter in which the worker bore the onus of establishing causation between his continuing incapacity and the injury in which he suffered on 14 February 1996.This was a question of fact for the Arbitrator to decide in the light of all the evidence both lay and expert.  The Arbitrator found that he had not done so and in my opinion gave adequate reasons for coming to that conclusion.  I think that such a conclusion is not “glaringly improbable”.  There was in my view ample evidence that the worker’s depression was for reasons not related to the head injury in question.  Insofar as there was a head injury at that time, it coincided with other factors, namely a deterioration in the worker’s health apart from the head injury and the worker’s financial worries associated with building a new house while the continuity of his employment seemed to be uncertain because of such deterioration. I am not persuaded that this ground has been made out whether considered as a question of fact or of law.

DECISION

1. The decision of the Arbitrator dated 2 March 2005 is confirmed.

COSTS

1. No order as to the costs of the appeal.

Anthony Candy

Acting Deputy President  

8 January 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE