Harbison Memorial Retirement Village t/as Harbison Care v Youngmann

[2008] NSWWCCPD 73

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Harbison Memorial Retirement Village t/as Harbison Care v Youngmann [2008] NSWWCCPD 73
APPELLANT:		Harbison Memorial Retirement Village t/as Harbison Care
RESPONDENT:		Deborah Christine Youngmann
INSURER:		Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER:		WCC7716-07
DATE OF ARBITRATOR’S DECISION:		8 February 2008
DATE OF APPEAL DECISION:		16 July 2008
SUBJECT MATTER OF DECISION:		Claim for weekly compensation; treatment of the evidence in relation to incapacity
PRESIDENTIAL MEMBER:		Acting Deputy President Robin Handley
HEARING:		Determined on the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	Maurice Blackburn Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 8 February 2008 is confirmed.
The Appellant, Harbison Memorial Retirement Village t/as Harbison Care, is to pay the costs of the Respondent, Mrs Youngmann, in this appeal.

BACKGROUND

1. On 5 March 2008, Harbison Memorial Retirement Village t/as Harbison Care (‘the Appellant’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 8 February 2008. The Respondent to the appeal, Deborah Youngmann, filed a ‘Notice of Opposition’ to the appeal on 18 March 2008. The Appellant's workers compensation insurer is Allianz Australia Workers’ Compensation (NSW) Ltd.

1. Mrs Youngmann, who is aged 55, had worked for the Appellant as an assistant in nursing since 16 April 1998. She worked 30 hours a week between Saturday and Wednesday. On 10 May 2005, Mrs Youngmann was handed a letter from the Director of Nursing asking her to attend a “counselling interview” to discuss a complaint from a resident. A later letter concerning the date of the interview referred to complaints by two residents and stated that “[i]f the allegations are proven disciplinary action will be taken”. Mrs Youngmann developed anxiety and depression and has not worked since. On 18 May 2005, she completed a claim for workers compensation.

1. On 11 October 2007, the Commission registered Mrs Youngmann’s ‘Application to Resolve a Dispute’ in respect of her claim for (1) weekly compensation and (2) lump sum compensation for permanent impairment and pain and suffering. On 1 November 2007, the Appellant lodged a ‘Reply’. On 15 November 2007, the Arbitrator conducted a teleconference with the parties. On 25 January 2008, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing. On 8 February 2008, the Arbitrator issued her decision. This was slightly amended to correct typographical errors on 18 February 2008.

1. Following this decision, Mrs Youngmann was referred to an Approved Medical Specialist, Dr Robert Kaplan, Psychiatrist, for assessment of her permanent impairment. Dr Kaplan diagnosed:

“Panic attacks with agoraphobia; Adjustment Disorder with depression and anxiety, resolved. The Adjustment Disorder is due to the workplace injury; Panic Disorder is a constitutional condition to which she was pre-disposed and not assessable.”

1. Dr Kaplan found Mrs Youngmann’s impairment as a result of the injury to be permanent and assessed her as having a 7% whole person impairment.

THE DECISION UNDER REVIEW

1. The amended ‘Certificate of Determination’, dated 18 February 2008, records the Arbitrator’s orders as follows:

"1. That the Respondent pay weekly compensation to the Applicant at the rate of
(a) $455 from 11 May 2005 to 10 November 2005 and
(b) at the statutory rate for a single worker without dependants from the 11 November 2005 to the 1 October 2006.

2. That the Registry refer this matter to an Approved Medical Specialist for assessment of whole person impairment arising from the psychological injury on 10 May 2005."

1. In the Statement of Reasons for her decision, the Arbitrator noted that the Appellant conceded that Mrs Youngmann had suffered a psychological injury in the course of her employment and that employment was a substantial contributing factor to the injury. The Appellant also conceded that the condition was wholly or predominantly caused by the actions taken by the Appellant with respect to discipline and/or performance appraisal. However, at issue was whether the Appellant’s conduct was reasonable.

1. The Arbitrator found no explanation as to why Mrs Youngmann could not have been briefly told the substance of the allegation made against her when she was given the letter dated 10 May 2005. The Arbitrator found the circumstances surrounding the handing of the letter to Mrs Youngmann and the conduct of the meeting on 18 May 2005 did not constitute reasonable action in relation to discipline. This was the cause of Mrs Youngmann’s injury.

1. The Arbitrator found, on page 7 of her Statement of Reasons:

“The medical evidence before me indicates that Mrs Youngmann had recovered her capacity to work at least by the 1 October 2006 the date on which her GP certifies her fit for 32 hours per week with no restrictions relating to her psychological injury. Dr Wenden says she has recovered from her depression by 4 February 2006 but does not put his mind to whether she could return to her previous employment saying she has ‘elected’ not to return. Dr Dinnen’s estimation is based on one attendance and a somewhat incomplete history. I prefer that of the treating doctors who saw Mrs Youngmann far more regularly and have a better idea of her situation.”

1. It was on the basis of this finding that the Arbitrator determined that Mrs Youngmann should be paid weekly compensation until 1 October 2006.

ISSUES IN DISPUTE

1. The issue in dispute is whether Mrs Youngmann is entitled to weekly compensation from 4 February 2006 to 1 October 2006. The grounds of appeal identified by the Appellant are that the Arbitrator (1) failed to properly identify the nature of the psychiatric condition found, (2) misunderstood the opinion of Dr Wenden, and (3) consequently failed to apply appropriate weight to Dr Wenden’s opinion. The parties’ submissions on these issues are discussed below.

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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can 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. 

1. Neither party sought to adduce fresh evidence.

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. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and comprises more than 20% of the amount awarded by the Arbitrator. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.

SUBMISSIONS

1. The Appellant states that the Arbitrator, while discussing the various diagnoses made by the doctors, fails to make an actual finding as to the specific injury sustained by the worker. This is relevant because the Arbitrator appears to dismiss the opinion of Dr R Wenden, Mrs Youngmann’s treating psychiatrist, on the basis that he did not consider the effect of “her anxiety and any adjustment order” such as found by Dr M Prior, Psychiatrist, on her ability to return to work. The Appellant submits that it is clear from Dr Wenden’s report dated 21 May 2006 that he had considered the effect of Mrs Youngmann’s anxiety when he opined that Mrs Youngmann had made a full recovery by 4 February 2006. As Mrs Youngmann’s treating psychiatrist, Dr Wenden was in the best position to provide an opinion on the issue of fitness for work.

1. Mrs Youngmann’s solicitors submit that, contrary to the Appellant’s contention, “the Arbitrator made no comment as to the appropriateness or otherwise of Dr Wenden’s consideration of the alternative diagnosis but simply notes that he had not turned his mind to this issue”. They submit that it was not necessary for the Arbitrator to form a concluded view as to the nature of the psychiatric condition in order to make a finding of incapacity. The Arbitrator made the relevant findings: that she was satisfied that Mrs Youngmann had suffered a psychiatric injury and the injury had been incapacitating during the relevant period.

1. The Appellant notes that in so far as the Arbitrator dismissed Dr Wenden’s opinion because Dr Wenden did not consider the effect of the adjustment disorder, the Arbitrator also stated in relation to the diagnosis of adjustment disorder with anxious mood that “there is no evidence before me that this condition would prevent her from working”. This being the case, then the fact that Dr Wenden did not mention an adjustment disorder in his report dated 21 May 2006 should be of no consequence. The Appellant submits the Arbitrator’s reasoning is flawed: she dismissed Dr Wenden’s opinion incorrectly and therefore failed to accord appropriate weight to him given his capacity as Mrs Youngmann’s treating psychiatrist.

1. Mrs Youngmann’s solicitors contend that the Arbitrator did not misunderstand Dr Wenden’s opinion or dismiss this. She gave due weight to Dr Wenden’s opinion but noted the alternative diagnosis advanced by Dr Prior and, ultimately, preferred the report from Dr C Cawthorne, General Practitioner, who saw Mrs Youngmann regularly and put his mind to what restrictions she might need on her return to work. Thus, the Arbitrator simply preferred the report of the general practitioner who continued to see Mrs Youngmann for some time after Dr Wenden had discharged her from his care. While the Arbitrator noted that Mrs Youngmann had recovered from the depressive disorder, she may have remained unfit for other reasons not fully explored by Dr Wenden.

1. The Appellant notes the absence of medical certificates covering the period from 4 February 2006 to 1 October 2006 from the attachments to the ‘Application to Resolve a Dispute’. If the further medical certificates admitted into evidence at the hearing did not include such certificates, this provides further grounds for limiting the award of weekly compensation to the period ending on 4 February 2006.

DISCUSSION AND FINDINGS

1. Pursuant to s 352(5) of the 1998 Act, the role of a Presidential Member on appeal is to conduct a review of the decision appealed against. As stated above, at issue is whether Mrs Youngmann is entitled to weekly compensation from 4 February 2006 to 1 October 2006. The grounds of appeal identified by the Appellant focus on the Arbitrator’s treatment of the medical evidence, in particular that of Dr Wenden, and on her findings in relation to the nature of Mrs Youngmann’s injury, the effects of that injury, and the duration of her incapacity for work.

1. However, dealing first with the Appellant’s question in relation to the WorkCover medical certificates issued by Dr C Cawthorne, Mrs Youngmann’s general practitioner since April 2000, I note the relevant certificates are in respect of the condition “Anxiety depression related to patient complaint”. The certificate dated 9 December 2005 states Mrs Youngmann is unfit for work because of this condition for the period 12 December 2005 to 28 February 2006, the certificate dated 24 February 2006 is similar and in respect of the period 1 March 2006 to 31 May 2006, and the certificate dated 26 May 2006 is also similar and in respect of the period 1 June 2006 to 30 September 2006. Thus, there are WorkCover certificates covering the whole of the period from 4 February 2006 to 30 September 2006. I note also that Dr Cawthorne provided a report on Mrs Youngmann dated 13 September 2005 detailing his treatment of her since 27 April 2000 and, in particular of her ‘anxiety depression relating to patient complaint’ since 10 May 2005.

1. I have reviewed the relevant specialist medical reports. In his report dated 21 May 2006, Mrs Youngmann’s treating psychiatrist, Dr R Wenden, diagnoses “Major Depression with panic attacks”. His report indicates that he saw Mrs Youngmann on four occasions – on 14 June 2005, 25 June 2005, 16 July 2005 and 4 February 2006. He states that when he last saw Mrs Youngmann on 4 February 2006, she had made a full recovery and he discharged her into the care of her general practitioner. Dr Wenden noted:

“Mrs Youngmann has elected not to return to her previous employment as an Assistant in Nursing because of her previous painful experiences involved in the work [sic] and her fear of putting her family through further suffering because of the illness and suffering she experienced. She felt that it would not be good for the family.”

1. Mrs Youngmann’s solicitors referred her for assessment by Dr A Dinnen, Psychiatrist. In his report dated 15 December 2006, Dr Dinnen diagnosed Mrs Youngmann as suffering from a depressive disorder. He found Mrs Youngmann unfit for any form of work because of her depressive illness.

1. The Appellant referred Mrs Youngmann for assessment by Dr M Prior, Psychiatrist. In his report dated 28 March 2007, Dr Prior diagnoses “Chronic Adjustment Disorder with Anxious Mood”. He made no comment on her capacity for work.

1. The Arbitrator discussed the medical evidence in relation to incapacity (Statement of Reasons, pages 6 and 7). She noted Dr Wenden’s opinion that Mrs Youngmann had made a full recovery by 4 February 2006, while Dr Cawthorne continued to certify her as unfit for work until 30 September 2006. From 1 October 2006, Dr Cawthorne certified Mrs Youngmann as fit for suitable duties with no hours limit. The Arbitrator said:

“It is unclear whether Dr Cawthorne received a report from Dr Wenden or if he did why he continued certifying Mrs Youngmann as unfit. However he has seen Mrs Youngmann regularly over a long period, has treated her for her anxiety prior to the injury and he is the only doctor to directly consider her capacity and is therefore perhaps in the best position to gauge her psychological readiness for employment.”

1. The Arbitrator commented that Dr Wenden “does not put his mind to whether she could return to her previous employment saying she has ‘elected’ not to return”. Dr Wenden did not “consider the effects of her anxiety and of any adjustment disorder, such as found by Dr Prior, on her ability to return to work”. Dr Dinnen’s opinion (report dated 15 December 2006) that Mrs Youngmann was currently unfit for work, omitted to mention that she was “running a small dog breeding business and gives no reason why she is unable to work”. Dr Dinnen’s opinion was “based on one attendance and a somewhat incomplete history”. Thus, the Arbitrator preferred the opinion of Dr Cawthorne, “who did put his mind to what restrictions she might need on a return to work [for example, a restriction on lifting more than 10 kgs due to an unrelated back condition] and was in the best position to gauge her progress”.

1. Mrs Youngmann’s solicitors submit that it was not necessary for the Arbitrator to make a finding identifying a specific diagnosis for the psychiatric condition suffered by Mrs Youngmann as a result of the injury. In my view, while there should be a finding describing the psychiatric condition from which the person suffers, the actual label that is accorded to the condition is not critical given a situation where, as is not uncommon, there are some differences in the specialist psychiatric opinions in evidence. What is important is that the symptoms and the effect on the person are clearly identified and described. In Mrs Youngmann’s case, the Arbitrator adequately discussed the medical evidence as to her anxiety and depression, the symptoms of that condition and the effect of those symptoms, relevantly, on her capacity for work.

1. I agree with Mrs Youngmann’s solicitors that the Arbitrator did not dismiss Dr Wenden’s opinion, as the Appellant suggests. She considered it along with the other opinions, including that of Dr Prior who, in his report dated 28 March 2007, while diagnosing a “chronic Adjustment Disorder with Anxious Mood”, made no reference to Mrs Youngmann’s capacity for work. The Arbitrator adequately explained her reason for preferring Dr Cawthorne’s opinion as to Mrs Youngmann’s capacity for work in the discussion summarised in paragraph 27 above. I am satisfied that the Arbitrator properly considered all the relevant medical evidence before her and I am not satisfied that her reasoning is flawed as the Appellant contends.

1. The Appellant having failed to establish its grounds of appeal in relation to the issue in dispute, the decision of the Arbitrator must be confirmed.

DECISION

1. The decision of the Arbitrator dated 8 February 2008 is confirmed.

COSTS

1. The Appellant, Harbison Memorial Retirement Village t/as Harbison Care, is to pay the costs of the Respondent, Mrs Youngmann, in this appeal.

Robin Handley

Acting Deputy President  

16 July 2008

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE