Hobden v South East Illawarra Area Health Service
[2010] NSWWCCPD 13
•8 February 2010
| WORKERS COMPENSATION COMMISSION | |||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||||
| CITATION: | Hobden v South East Illawarra Area Health Service [2010] NSWWCCPD 13 | ||||||
| APPELLANT: | Teena Hobden | ||||||
| RESPONDENT: | South East Illawarra Area Health Service | ||||||
| INSURER: | Employers Mutual Limited | ||||||
| FILE NUMBER: | A1-4799/09 | ||||||
| ARBITRATOR: | Mr J Cahill (by delegation of the Registrar) | ||||||
| DATE OF ARBITRATOR’S DECISION: | 16 July 2009 | ||||||
| DATE OF APPEAL DECISION: | 8 February 2010 | ||||||
| SUBJECT MATTER OF DECISION: | Section 11A of the Workers Compensation Act 1987; sections 296(2), 304B and 371of the Workplace Injury Management and Workers Compensation Act 1998 | ||||||
| PRESIDENTIAL MEMBER: | President, Judge Keating | ||||||
| HEARING: | On the papers | ||||||
| REPRESENTATION: | Appellant: | Maurice Blackburn Lawyers | |||||
| Respondent: | Hicksons Lawyers | ||||||
| ORDERS MADE ON APPEAL: | The decision dated 16 July 2009 is revoked and the following decision made in its place: 1. The Respondent is to pay the Applicant weekly compensation at the rate of $857.40 per week pursuant to section 36 from 10 February 2009 to 4 May 2009. 2. The Respondent is to pay the Applicant’s costs of the Application for Expedited Assessment. The Respondent to pay the Appellant’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
Ms Teena Hobden (‘Ms Hobden/the Appellant’) commenced employment with the South East Illawarra Area Health Service (‘the Respondent/Wollongong Hospital’) as an Endorsed Enrolled Nurse (‘EEN’) on 25 April 2006.
Ms Hobden lodged a workers compensation claim form with the Respondent on 3 March 2009 alleging she suffered a psychological injury as a result of an “incident at work with patient, and breach of confidentiality by work colleagues.” The date of injury as claimed was nominated as 26 January 2009 and it noted that she ceased work on 9 February 2009.
The “incident at work with patient” was an incident, which occurred on night shift on 24 January 2009, when Ms Hobden was found, following an internal investigation, to have administered insulin medication to a patient with unstable blood sugar levels. The administration of the drug was clinically inappropriate, given the patient’s medical status, and resulted in the patient suffering a hypoglycaemic episode. Ms Hobden failed to inform the registered nurse that the patient had elevated blood sugar levels or that she had administered insulin, both of which she was required do because she worked under supervision.
Ms Hobden has no memory of giving the medication to the patient. There were subsequent communications with the Nurse Unit Manager, the Acting Clinical Medical Stream Manager, and a formal fact-finding meeting on 10 February 2009. In addition, Ms Hobden had discussions with other staff members and colleagues at various times, which included colleagues reporting to her alleged comments by other staff about the incident and comments critical of her work performance generally.
Ms Hobden stated that she was distressed and upset about the negative comments and what she perceived as a breach of confidentiality. She was anxious that the patient’s husband would confront her. She was apprehensive about taking a patient load when she was rostered on shift. She attended counselling sessions and did not return to work after 10 February 2009.
Ms Hobden was certified unfit for work by her general practitioner from 9 February 2009, fit for suitable duties from 23 March 2009 and fit for pre-injury duties from 4 May 2009.
The Respondent did not dispute injury, however, by way of a section 74 notice dated 27 March 2009, it denied liability for the injury, referred to as occurring on or about 9 February 2009. The employer relied on section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’), on the basis that compensation was not payable if the psychological injury was caused by the reasonable action of the employer. The Respondent asserted that it had acted reasonably pursuant to section 11A and therefore Ms Hobden had no entitlement for weekly compensation benefits and/or medical expenses pursuant to section 60 of the 1987 Act. The respondent did not particularise what actions it alleged were reasonable. This was a serious omission and the section 74 notice was defective.
On 16 June 2009 Ms Hobden filed in the Workers Compensation Commission (‘the Commission’) an Application for Expedited Assessment (‘the Application’) in respect of a dispute concerning past weekly payments of compensation, pursuant to Part 5 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). She claimed to have suffered psychological injury in the period from 25 April 2006 to 9 February 2009, “including incidents detailed as per statement which is enclosed.” Ms Hobden claimed weekly payments of compensation for total incapacity for the period of 9 February 2009 to 4 May 2009. No claim was made for section 60 expenses.
The Respondent filed a Reply on 24 June 2009, which listed the issue in dispute as:
“The applicant’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken on the part of the employer with respect to discipline and/or performance appraisal.”
The matter was set down for a teleconference on 30 June 2009, before a delegate of the Registrar acting as an arbitrator (‘Arbitrator/delegate’), under section 304B of the 1998 Act. At the teleconference, Ms Hobden’s solicitor amended the date of the commencement of the period of the claim for compensation, from 9 February to 10 February 2009, and ceasing on 4 May 2009, a period not exceeding 12 weeks.
The Arbitrator issued a Certificate of Determination and a Statement of Reasons (‘Reasons’) on 16 July 2009. He entered an award in favour of the Respondent on the basis that it had established a defence under section 11A(1) of the 1987 Act on the grounds that Ms Hobden’s psychological injury had been predominantly caused by reasonable actions with respect of the performance appraisal and/or discipline process instigated after the incident with the patient had occurred.
By letter dated 28 July 2009, Ms Hobden sought a reconsideration of the Arbitrator’s decision under section 350(3) of the 1998 Act. The Arbitrator, by letter dated 31 July 2009, directed Ms Hobden to make submissions to the Commission in respect of her request for reconsideration. The Arbitrator also directed the Respondent to file submissions in reply.
On 6 August 2009 Ms Hobden filed submissions in support of her request for reconsideration. She submitted that the approach of the Arbitrator at [56] of his Reasons, concerning the requirement that Ms Hobden discharge the onus as to the cause of injury, was incorrect. On 28 August 2009 the Respondent filed a reply with grounds in response to Ms Hobden’s application for reconsideration.
In a ‘Statement of Reasons’ dated 3 September 2009 the Arbitrator stated that he ‘refused’ the application for reconsideration.
On 12 August 2009, Ms Hobden also filed an ‘Application to Appeal Against Decision of Arbitrator’ in the Commission against the Arbitrator’s decision dated 16 July 2009.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 16 July 2009 records the Arbitrator’s orders as follows:
“1. Award for the Respondent.
2. I make no order for costs.”
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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 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.
JURISDICTION
As the jurisdiction of the Commission to entertain an appeal under section 352 of the 1998 Act from a decision of a delegate of the Registrar determined under Division 2A of Part 5 of Chapter 7 of the 1998 Act has not, to my knowledge, been previously considered, I caused a direction to be issued to both parties requiring further submissions on appeal including inter alia:
“Submissions on the jurisdiction of a Presidential member to hear and determine an appeal under section 352 of the 1998 Act, from the decision of a delegate of the Registrar, determined under Division 2A of Part 5 of Chapter 7 of the 1998 Act.”
Appellant’s submissions
Pursuant to section 296(2) of the 1998 Act, the functions exercised by the Registrar under Divisions 2 and 3 of Part 5 are not subject to appeal or review. However, the award was made under Division 2A of Part 5 of the 1998 Act.
The determination by the Registrar’s delegate was not subject to the appeal exclusion provided for in section 296(2). The award made finally disposes of the matter.
The matter is distinguished from Mayne Group Limited v Unicomb [2006] NSWWCCPD 107 (‘Unicomb’) because there was no award entered in Unicomb and Division 2A, under which the decision in the current matter was made, only applies from 1 November 2006, post-dating the decision in Unicomb.
The making of an award is a function of an arbitrator and cannot be delegated pursuant to section 371(2) of the 1998 Act. Any purported entering of an award by a Commission staff member is a nullity (see RTA v Warden [2004] NSWWCCPD 55 at [19]-[21]).
Respondent’s submissions
The Respondent concedes that the Commission has jurisdiction to hear and determine the appeal.
The prohibition on appeal or review of a decision of the Registrar as set out in section 296(2) should not be extended to decisions made under Division 2A in the absence of some express legislative intention to limit parties’ rights in respect of that particular division.
Discussion and finding
This Application was made pursuant to Part 5, Expedited Assessment, of Chapter 7 of the 1998 Act.
The dispute concerned a claim for past weekly payments of compensation for a period of less than 12 weeks being a period commencing 10 February 2009 and ceasing on 4 May 2009.
In the Notice sent to the parties on 23 June 2009 the delegate noted that the matter would proceed under Division 2A of Part 5 dealing with expedited assessments.
Section 304A, the section under which this Application was determined, applies in respect of a dispute that concerns weekly compensation if the payments are for a period (not exceeding 12 weeks) before the dispute is referred to the Commission, being a period in respect of which an interim payment direction under Part 5 may not be made.
Under section 304B the Registrar may determine the dispute instead of the Commission. Pursuant to section 304B(2), for the purposes of determining the dispute, the Registrar has all the functions of the Commission constituted by an arbitrator and any determination by the Registrar is taken to be the determination of the Commission constituted by an arbitrator. Section 304B(4) provides that for the avoidance of any doubt the Registrar may under section 371, delegate a function conferred to the Registrar under subsection (1) or (2).
Section 371(1) and (2) provides:
“371 Functions of Registrar
The Registrar has and may exercise all the functions of an Arbitrator.
The Registrar can delegate to any member or member of staff of the Commission any of the Registrar’s functions under the Workers Compensation Acts, except this power of delegation.”
It should be noted that Division 2A was inserted in the 1998 Act by Act No.113 of 2005 Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005. Division 2A, in which sections 304A and 304B are contained, became operative on 1 November 2006.
Prior to the enactment of Division 2A, section 296(2) prohibited an appeal from the decision of the Registrar or her delegate under section 352 to a Presidential member, see Unicomb (at [34]). As both parties have correctly submitted, Unicomb was decided prior to the enactment of Division 2A and is unhelpful in determining the jurisdiction of the Commission to entertain an appeal from the decision of a delegate made under Division 2A.
I agree with the submissions of both parties that in the absence of more express legislative intention to limit the parties’ rights in respect of this Division, the prohibition on an appeal or review of a decision of the Registrar referred in section 296(2) does not extend to decisions made under Division 2A. I am reinforced in that view by the provision of section 304B(4) which expressly provides that, for the avoidance of doubt, the Registrar may under section 371 delegate a function conferred on the Registrar under subsection (1) or (2).
Construing Division 2A in the manner outlined appears to accord with the legislative intention expressed in the Second Reading Speech concerning the Amending Bill. On Tuesday 29 November 2005 the Honourable David Campbell said:
“On improved dispute resolution the Bill contains a number of measures aimed at streamlining and simplifying procedures within the Commission. This will be achieved by expanding the expedited assessment process, firstly, by increasing to $7,500.00, from $5,000.00, the maximum that can be awarded for medical expenses and secondly, by enabling past period weekly benefits claims of up to 12 weeks to be dealt with as part of the expedited assessment process. This latter reform gives the Registrar the powers of an arbitrator for such purposes, whilst at the same time such decisions retain existing appeal entitlements as if an arbitrator had exercised the findings.”
For these reasons I am of the view that as a Presidential member I have jurisdiction to hear the appeal under section 352 and to review the determination of the Registrar’s delegate of 16 July 2009 made under section 304A of the 1998 Act.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
There is no dispute that the quantum at issue on appeal meets the thresholds in section 352(2) of the 1998 Act.
Time
The appeal was lodged on 12 August 2009 within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence on appeal.
EVIDENCE
Ms Hobden’s evidence
Ms Hobden relied on a signed statement dated 27 February 2009, which was prepared by MJM, investigators instructed by Employers Mutual Limited (‘EMI’) for the Respondent. She gave a detailed account of her education, employment and medical history, which included a previous workers compensation claim made in 2008 in relation to an injury to her shoulder.
Ms Hobden commenced work at Wollongong Hospital in a temporary role on 25 April 2006 working in cancer services. She was appointed to a permanent position in the renal unit on ward B8 in about August 2006 and remained employed in that unit. Her duties included general basic nursing care including showering, toileting, giving medication, cleaning, and liaising with staff and families.
Upon commencing employment with the Respondent Ms Hobden had a two-day orientation, which covered topics such as CPR, fire drill, occupational health and safety, IIMS (Incident Investigation Monitoring System) and the reporting of incidents. She was also informed of the Hospital’s policy and procedures, their accessibility on the intranet and the location of hardcopies of the policy.
The acting Nursing Unit Manager (‘NUM’) was Ms Leisa Watson who worked Monday to Friday from about 7.00am to 4.00pm. Ms Hobden confirmed that on both day and night shifts there are both registered and enrolled nurses on duty.
Ms Hobden was on night duty from 23 January to 25 January 2009, having the care of six patients. She was aware from the nursing handover that one of her patients had an unstable BSL (blood sugar level). At 2.00am she took a reading of the patient’s BSL, which showed a reading of approximately 17 points. At 6.00am another nurse took the patient’s BSL and the reading was 2.6 points.
Ms Hobden stated that at some stage between 2.00am and 6.00am the patient had been given Actrapid, an insulin medication. The medication chart showed that it was Ms Hobden who had administered the medication, however, she could not recall doing so. When registered nurse (RN) Ms Iky Martin informed her that the patient’s BSL reading was 2.6, she also instructed Ms Hobden to put two glucose tables under the patient’s tongue. Ms Hobden spoke to the patient. Shortly thereafter, Ms Hobden documented what had occurred in the patient notes. She gave her handover to the day shift including advising that the patient had a BSL of 2.6 and what she had been instructed to do. She concluded her shift and went home.
When Ms Hobden commenced her next shift, (night shift on 24 January 2009), Ms Debbie Wall, RN, informed her that the patient referred to above had had a “hypo event” and the patient’s husband wanted to know which nurse was responsible. Ms Hobden felt that she had done nothing wrong and had followed nursing procedure.
Ms Hobden stated that on 26 January 2009, Ms Watson informed her that the patient’s husband was entitled to know which nurse was responsible. Ms Hobden responded stating that Ms Watson was not permitted to disclose the nurse’s name, but that she could advise the patient’s husband that the matter had been dealt with. Ms Watson stated that she was going to phone the patient’s husband but did not say what she was going to tell him.
Ms Hobden returned to work on 2 February 2009 after her normal rostered days off. However, she did not want to take a patient load because she lacked confidence and was concerned about the patient’s husband approaching her. At the hand over she informed the ‘In Charge’ (whose identity she could not recall) that she did not want a patient load.
On the same day, RN Ms Terri Sawyer informed Ms Hobden that Ms Jo Chapman, who had returned from annual leave, had stated to her that Ms Hobden made too many mistakes and was not capable of being a nurse. Ms Hobden’s reaction was “I was gob smacked. I thought ‘here is a person who I very rarely work with and on leave and can make such a judgment’”.
The next day Ms Hobden commenced her shift feeling nervous and apprehensive because the patient and her husband were still on the ward. She had heard from a co-worker, Ms Argine Alonso, that she and “the incident” had been the topic of conversation at a meal break the day before, in an area where both the public and staff had access. Ms Alonso informed her that EN Reedy phoned her sister, who also worked on the ward, and “proceeded to tell her about my incompetence and the incident.” Another (unnamed) co-worker told Ms Hobden that it was her understanding that Ms Hobden had been suspended from work until further investigations were undertaken.
On 4 February 2009, Ms Watson requested a meeting with Ms Hobden. Ms Hobden arranged for Ms Sawyer to attend as a support person/witness. Details of ‘the incident’ were discussed as well as the reasons why she had not been taking a patient load. Ms Hobden became distressed and upset during the discussion. Ms Watson confirmed to Ms Hobden that she had not informed the patient’s husband which nurse was responsible and that the matter was going no further. Both Ms Watson and Ms Sawyer told her that she needed to get over the incident, that they too had made mistakes in their nursing careers, and that she needed to continue concentrating on studying for her registered nurse certificate. Ms Hobden stated, “with that I never gave it another thought and decided to take my time getting back to where I was.”
However, on the next day, 5 February 2009, Ms Hobden received a telephone call from Albert Vasquez (Acting Clinical Medical Stream Manager) informing her that Ms Watson had lodged an AIMS Incident Report and that he needed to meet with her for a ‘fact-finding interview’ on 10 February 2009. He stated that she could take a support person to that interview.
During the telephone conversation Mr Vasquez informed her that after the interview one of three things could occur: she could receive a warning, be offered further education if needed, or her employment could be terminated. He also advised that EAP counselling was available and provided her with the phone number. She was still upset and distressed and the phone call had made her worse. She contacted the Union.
She stated that whilst she continued to work she constantly thought about the scheduled interview. On 8 February 2009 Ms Hobden was crying at work. On 9 February 2009 she attended counselling with Ms Mulligan of Mentor Services, Wollongong.
On 10 February 2009, in attendance at the fact-finding interview were Ms Carline Marasovic, Nursing Co-Director, Mr Vasquez NM ICU (Nurse Manager Intensive Care Unit) and Ms Julie Hines, EN and union representative. Mr Vasquez explained the purpose of the meeting, the possible outcomes, and that notes of the meeting would be made. Ms Hobden explained to the meeting the circumstances of ‘the incident’. Ms Hines informed the meeting of a breach of confidentiality with other staff. Mr Vasquez closed the fact-finding meeting and the meeting continued to discuss other issues raised. He informed Ms Hobden that investigations would continue.
Ms Hobden told the meeting what had been said about her by co-workers and of the NUM’s intention to inform the patient’s husband of the identity of the nurse responsible. Ms Hobden told them “with this hanging over my head I felt like I could not go back to the ward as I didn’t know if the husband was going to come after me”.
Ms Marasovic said that she would speak with Ms Watson, and contact Ms Hobden later that day. Ms Hobden however stated that she had a doctor’s appointment that afternoon. Ms Marasovic said she would send a text message after speaking to Ms Watson. At the date of preparing her statement, Ms Hobden had not received a text message from Ms Marasovic.
During the meeting on 10 February 2009 Ms Hobden stated that she was “a bit teary, nervous and anxious”. She expressed her fear of losing her job. Whilst she was not sure she thought that she recalled that Ms Marasovic said, “That’s not going to happen”.
On 10 February 2009 Ms Hobden attended Dr Ahmed and reported the events at work and that she had not been sleeping. She cried at the appointment. Dr Ahmed diagnosed that she was suffering from anxiety and depression syndrome. He prescribed Endep 10, 50mg and Antenex 2mg, and issued her with a medical certificate, certifying her unfit for work from 9 February 2009 to 13 February 2009.
On 24 February 2009 Ms Hobden saw a Dr Pather, in Dr Ahmed’s absence. He issued her with a progress WorkCover medical certificate certifying her unfit to work from 24 February 2009 to 4 March 2009.
The only correspondence Ms Hobden had received from the Respondent to the date of preparing her statement was the minutes of the fact-finding meeting held on 10 February 2009.
On 19 February 2009 Ms Hobden attended at Wollongong Hospital to deliver her medical certificates. She felt really anxious and nervous on approach and she waited in the car while her husband delivered the certificates.
At the time of preparing her statement on 27 February 2009, Ms Hobden did not feel she could return to work on ward B8. She had made enquiries about working in the casual pool but to do so would require permission from, Ms Watson. She had also made enquiries about returning to Canterbury Hospital, where she previously worked.
She complained about having problems sleeping, and feeling anxious and very teary, having difficulties concentrating, difficulties completing her university assignments and that in the first two weeks she avoided answering the phone.
She also stated that she wanted to try and get back to work and start enjoying her job again. The counselling she had been receiving had been helping and Ms Mulligan had suggested mediation with the NUM. A work colleague had informed her in approximately early February 2009, that the patient involved in the incident had died. She was not sure how she felt about this and whether or not she felt responsible for this patient’s death.
Medical evidence
Ms Hobden relied on an initial medical certificate and a number of WorkCover medical certificates certifying her as suffering from anxiety and depression syndrome. The date of injury was nominated as 9 February 2009 and she was certified unfit from 9 February 2009 to 18 March 2009 and fit for suitable duties from 23 March 2009. A copy of a certificate dated 4 May 2009 is virtually illegible, but certifies the worker fit for pre-injury duties, presumably from 5 May 2009, given the claim for weekly compensation is limited to the period up to 4 May 2009.
Ms Hobden also relied on a medico-legal report from Dr Ian Burman, consultant psychiatrist, dated 12 March 2009. Dr Berman examined the worker at the request of EMI. He noted that she had no significant past medical history including no past psychiatric history. In terms of family psychiatric history, her brother was depressed due to a relationship breakdown and her mother had become depressed after her father’s death a few years earlier.
Dr Burman recorded a detailed account of the circumstances of Ms Hobden’s alleged injury. He recorded the events and treatment of the particular patient with the unstable blood sugar levels. He noted that when Ms Hobden returned to the ward the next night she was informed that the response team had been called to “your patient”. At the end her shift the NUM spoke to her about the incident and said “the husband is bound to make a complaint. He has a right to know your name”. Ms Hobden immediately said that the NUM could not give her name and that it was not legal to do so.
He also recorded that when Ms Hobden returned to the ward for duty five nights later she heard comments like “you are incompetent” from a number of people. She said that she was shocked, not understanding what had happened or why there was a problem. She was very distressed. Two days later she was phoned by another enrolled nurse and told that she was the topic of conversation at tea and meal breaks. Ms Hobden complained that people were judging her without asking her what happened.
Dr Burman noted that Ms Hobden was very clear that she was not distressed about the matter of the insulin injection and the patient’s reaction, but rather was:
“enormously distressed by the fact that her colleagues, her former friends on the wards, were talking about her, gossiping about her and maligning her good name. She cannot easily get over this matter of being judged as incompetent by her colleagues when in fact she does not believe that what she did was of any great magnitude of incompetence at all.”
Dr Burman found Ms Hobden unguarded, forthright and showed no signs of exaggeration. Based on the Diagnostic Criteria of DSM-IV TR, he diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood (with depressed mood not especially prominent).
Dr Burman noted that whilst there was some initial distress about hearing about the patient’s insulin/hypoglycaemic issue, it was when Ms Hobden returned to work finding that she was the topic of so much negative comment about her competence by her work mates, whom she considered to be her friends, that she began to become unwell. This was further aggravated by a phone call by one of her “friends” informing her that she was the favoured topic of conversation at tea and meal breaks of the staff whom she regarded as her friends.
Dr Burman believed that Ms Hobden’s employment with the Respondent was the substantial contributing factor to her compensable condition. He opined that Ms Hobden’s illness was not related to any distress, relating to the reasonable action taken by the Respondent regarding performance appraisal and/or discipline, but rather:
“to the rumour mill among her former friends on the ward. In fact, I would think it would be fair to estimate from her discourse that she was indeed sorry about what had happened to the patient but did not seem excessively guilty about this, feeling that at the handover she had given the information that the oncoming staff should have acted on rather than that she had left the patient in jeopardy because of administering insulin. I did not note any evidence that she felt guilty about what she had done.”
Dr Burman found Ms Hobden unfit for work at Wollongong Hospital or for work in the renal ward where she worked previously. Ms Hobden was looking for work and felt able to work elsewhere within a month. He thought that she would be fit to work full time in four to eight weeks time if she was able to find suitable employment. He recommended gradually reducing her medication and continuing with weekly counselling for at least six weeks, after which she was likely to require another four to eight visits at two week intervals and possibly some follow up visits.
The Respondent’s evidence
The Respondent relied on the MJM Investigation Report dated 12 March 2009. The report contained several annexures including the ‘Guidelines for EEN role on B8’ and ‘Wollongong Hospital Policy – Medication Administration by Endorsed Enrolled Nurse’, an AIMS Incident Detail (606985-20) completed by RN Londen dated 5 February 2009, a file note titled “IMS 606985-20” signed by Leisa Watson and a file note dated 10 February, post the fact finding meeting. There were also a number of signed statements from nursing staff.
The AIMS Incident Detail dated 5 February 2009 recorded that EEN Hobden had total care of the particular patient, and administrated medication without authorisation, documentation was poor, that the protocol for hypoglycaemia should have been followed, incident minimisation factors included more observations of the patient, and, closer observation and supervision of the EEN administering medication and having total patient care.
The file note dated 10 February 2009, post the fact-finding meeting, which is not signed but referred to in the factual investigation report as having been completed by Ms Marasovic, recorded the errors made by Ms Hobden in exceeding her scope of practice and failing to discuss the patient’s condition and treatment with the RN. It was noted that Ms Hobden was concerned that there had been a breach of confidentiality because staff were aware of the incident. It was noted that clinical management and education necessitated that errors and other incidences were discussed at monthly ward meetings. It was also confirmed that such incidents were disclosed to the patient and family but this did not include disclosing the staff members’ name or telephone number.
Ms Hobden’s concerns about staff gossiping were noted. It was acknowledged that staff would discuss significant events that occurred.
The file note confirmed that Ms Watson had reported that, whilst she disclosed the incident to the patient’s husband, she did not give him the staff member’s name or number. Ms Watson confirmed that the husband was angry and upset that his chronically ill wife had “been made worse through our actions”.
A further document titled, “confidential - report to DoN-Teena Hobden–Endorsed Enrolled Nurse, B8”, which confirmed that evidence was gathered at the fact-finding meeting that Ms Hobden had acted outside her scope of practice and against hospital policy in the incident with the patient. Ms Marasovic referred the matter to the Director of Nursing “for your further action” and made the following recommendations:
“Disciplinary action without [sic] regards to working outside hospital policy and scope of practice
Referral to the Professional Practice Unit
Consideration of the need to refer to the NMB”
Ms Marasovic also recorded that some “educative process” did occur at the fact-finding interview with regard to hospital policy and procedure but a formal education process had not occurred.
Leisa Watson
Ms Watson, Acting NUM of B8, in a statutory declaration dated 2 March 2009 confirmed that she had known Ms Hobden for a period of approximately 2 years and that she believed she did her job ‘okay’ but she found her moody.
On 24 January 2009 she had a ‘personal conversation’ with Ms Leanne Payne who also worked on the ward. Ms Payne mentioned that the patient had a ‘hypo’ episode after being given ‘sliding scale’ medication and that she may also have mentioned Ms Hobden’s name but she could not be certain of this. On 25 January 2009 Ms Watson worked the night shift and had a conversation with Ms Sarah Longden (RN), who had worked the morning of 24 January 2009. They briefly discussed the incident of the patient’s ‘hypo’ episode including the fact that the patient’s husband would be phoning her to discuss the incident. She asked Ms Longden, as she was in charge that shift, to complete an AIMS Incident report.
Ms Watson asked Ms Hobden and Ms Martin, the RN on the same shift what happened with the patient. She believed that Ms Hobden indicated that she had given the patient the sliding scale medication and that she had checked this with Ms Gane, Clinical Nurse Specialist. After a general conversation about not giving sliding scale medication at 2.00am or 3.00am in the morning, she told Ms Hobden that an AIMS Incident report had been submitted and that the patient’s husband had a right to know about the incident and what was being done. She did not recall indicating to Ms Hobden that she was going to tell the patient’s husband her name. When Ms Watson spoke to Ms Gane the following Tuesday she was adamant that she had no knowledge of the medication administered by Ms Hobden on the night of the incident.
On 4 February 2009 Ms Watson spoke to Ms Hobden in Ms Sawyer’s presence. When questioned whether she had checked with Ms Gane about the medication to be administered to the patient, Ms Hobden said that she could not recall what happened. She became upset during the discussion and said that she wanted to tear up her nurse’s registration and quit her job. At no time during the conversation did Ms Hobden mention that she was upset because of co-workers were talking about her. Ms Watson informed her that she had spoken to the patient’s husband who had been calm about the matter and that she had not told him her name.
On or about 5 February 2009 Ms Watson informed Mr Vasquez, about her meeting with Ms Hobden on 4 February. He asked her for a report and copies of documentation and indicated that there would be a fact-finding investigation. The documentation included progress notes on 24 January 2009 at 4.50am stating:“BSL @ 0200 – 17.6, so as per sliding scale, 8 units of actrapid given” and on the patient’s medication chart at 2.30am Ms Hobden had written ‘8 units sliding scale’. Both entries were signed by Ms Hobden.
Ms Watson concluded that at no stage had she heard staff talk about Ms Hobden or the incident, however, as a result of the incident she had spoken to a couple of the EENs on the ward and the Nurse Educator about not giving insulin. She said that during one of her ward meetings she spoke to staff in general about incidents occurring on the ward from time to time and reminded them that mistakes occur and to learn from them. She also reminded them about not gossiping.
In response to the request from Mr Vasquez, Ms Watson prepared a document, undated, which is annexure “A” to her statement. It provided a brief file note chronology of her discussions with Ms Hobden. Ms Watson recorded that when she spoke with Ms Hobden on 26 January 2009, she informed her that she would investigate further and discuss the incidence with Ms Gane. On 4 February 2009 in the meeting with Ms Hobden, Ms Watson recorded that she informed Ms Hobden that Ms Gane had denied checking the insulin dose and denied that she had been advised of the patient’s condition. She also confirmed that the ward policy was to refrain from administering sliding scale insulin in the early hours of the morning and particularly to unstable diabetics. Ms Watson recorded that Ms Hobden was crying during the meeting and stated she had been thinking about the incident since it had taken place.
Ikuyo Martin
Ms Martin, RN on ward B8, provided a signed statement dated 9 March 2009. She worked night shift on 23/24 January 2009. Ms Martin understood that Lorraine Gane was supervising Ms Hobden that evening. At no stage during the night shift was it brought to Ms Martin’s attention that the patient in question had a particularly high BSL.
Shortly prior to the handover at around 7.00 am Ms Hobden informed Ms Martin of the patient’s BSL being “two point something”. Understanding that was a dangerously low BSL count, Ms Martin instructed Ms Hobden to give the patient two glucose tablets. It was her understanding that the patient had only been administered lantus (insulin) medication the night before.
Ms Martin worked with Ms Hobden again on 24 January and 25 January 2009. During each of those shifts Ms Hobden questioned whether a patient should be given insulin and was instructed not to give it.
Ms Martin was present on 25 January 2009 during a discussion between Ms Hobden and Leisa Watson. She did not recall Ms Watson telling Ms Hobden that she was proposing to give her name (Ms Hobden’s name) to the patient’s husband.
Since the night shift of 23 January 2009 Ms Martin had not heard staff gossip about Ms Hobden and the incident involving the patient. There had been discussion with some staff members regarding the incident. She also recalled staff talking about Ms Hobden’s absence from work indicating a concern for her but there had been no negative talk about Ms Hobden nor had she heard staff talk about Ms Hobden being “incompetent”.
The week following the incident Ms Martin recalled that Ms Hobden went to Bathurst for training for her registered nurse certificate. On her return, Ms Hobden said to her that she had wanted to leave and had shredded her nurse’s registration. Although Ms Hobden did not say why, it was Ms Martin’s belief that it stemmed from the incident involving the patient. Ms Hobden looked upset at the time but at no stage did she indicate that she was upset due to apparent gossip about her.
Argine Alonso
Ms Alonso, EEN, provided a signed statement of evidence dated 2 March 2009. She was not working the night shift of 23 January 2009.
On 24 January 2009, whilst working the afternoon shift, Ms Alonso became aware of an incident involving the particular patient when she had suffered a “hypo episode” that morning and nearly arrested. She was unaware of who was involved in the incident.
On Monday 26 January Ms Hobden approached her and said “I think Leisa is out to get me”. The conversation then ended abruptly and Ms Hobden left.
During the following week whilst Ms Hobden was in Bathurst studying Ms Alonso tried unsuccessfully to contact her by phone. During her absence she became aware of the incident on 23 January 2009 from consulting the patient’s records. In the meantime no staff had mentioned Ms Hobden’s name to her at all.
Ms Alonso recalled that at some time during her stay in Bathurst Ms Hobden called her and discussed the incident with her. He discussed with her what appeared in the patient’s clinical records, although Ms Hobden was unable to recall the incident herself. She said that Ms Hobden was upset during the course of the telephone call. She had been unable to sleep. Ms Alonso reassured her that the patient was fine and said to her “we all make mistakes”.
Ms Alonso stated that either during this call, or a subsequent conversation with Ms Hobden, she was informed by Ms Hobden that Leisa Watson was proposing to tell the patient’s husband that she was involved in the incident. This upset Ms Hobden because she did not want her name brought up. She indicated she did not wish to work in that section any longer because of the incident and the patient’s husband.
Following her return from Bathurst, Ms Hobden said she was a nervous wreck, was unable to sleep and was not eating properly. Ms Alonso stated, “Teena’s distress at this time appeared to be because of the incident itself and the patient’s husband.”
At a subsequent time Ms Hobden spoke to Ms Alonso about receiving a letter and being required to attend a meeting. Ms Alonso stated that Ms Hobden appeared very stressed and was concerned about what was going to happen to her. She mentioned that her nurse’s registration was due and she was considering not registering. She encouraged her to have a union representative present at the meeting. After the meeting, referred to above, Ms Alonso spoke with Ms Hobden again, and she said to her that the meeting was not as bad as she thought it was going to be.
Ms Alonso stated that at no stage had she overheard any of the nurses from B8 or elsewhere talking about Ms Hobden and the incident from the night shift of 23 January 2009. At no stage had any nurses indicated to her that Ms Hobden was incompetent.
Therese Sawyer
Ms Sawyer provided a signed statement dated 2 March 2009. Ms Sawyer is a registered nurse working at Wollongong Hospital on the B8 ward. She was not working on the night shift of 23 January 2009.
Ms Sawyer gave an account of the conversation she had on 24 January 2009 with a Jo Chapman. During the course of a general discussion regarding the duties of an EEN she said, “I commented to Jo that it is really sad that Teena has worked so hard to make the role work and it was just not happening. It was then that Jo said to me something like ‘she has made a mistake’. My reply was ‘we all make mistakes’. There was no further reference towards Ms Hobden during that discussion.”
On or about 4 February 2009 Ms Sawyer accompanied Ms Hobden, at her request, to a meeting in the Nurse Unit Manager’s office in relation to the incident that occurred on 23 January 2009. During the course of that meeting Ms Hobden accepted that she had made an error with respect to the administration of medication to a patient. She recalled that Ms Hobden was crying “a lot” during this meeting. Ms Hobden was advised that the purpose of the meeting was to draw to her attention that a mistake had been made, that she needed to be aware of the mistake and learn from it. Ms Sawyer did not recall during the course of this meeting any discussion about gossip concerning her. Ms Hobden did, however, express concern about whether the patient’s husband knew her name. Ms Sawyer had no further contact with Ms Hobden since that meeting.
Ms Sawyer denied that she had heard any staff gossip about Ms Hobden and the incident on 24 January 2009.
Albert Vasquez
Mr Vasquez provided a signed statement of evidence dated 2 March 2009. As at 23 January 2009 he was the Acting Nurse Coordinator-Medicine for the South Eastern Sydney and Illawarra Area Health Service.
In the week commencing 2 February 2009 it was brought to his attention by Ms Watson that an incident had occurred where it was alleged that an EEN on the ward, Ms Hobden, had administered insulin, which subsequently resulted in a patient having a hypoglycaemic episode in the early hours of Sunday, 24 January 2009. The RN on duty was adamant that Ms Hobden had not checked with her about administering the insulin. Mr Vasquez confirmed that the hospital policy does not state that an EEN can administer insulin. The documentary evidence established that Ms Hobden had administered insulin subcutaneously and the verbal information from the RN was that none of the required checking processes had been followed.
Mr Vasquez discussed the incident with the Director of Nursing (DON), Sue Harris, who confirmed that there was a performance issue, which would require a fact-finding investigation.
On 6 February 2009 Mr Vasquez telephoned Ms Hobden to inform her that she would receive a letter inviting her to attend a fact-finding meeting to be held on 10 February 2009. He explained to her what the fact-finding process entailed. Although he did not detail in his statement what it entailed.
He stated that during the telephone call Ms Hobden was obviously distressed and crying. She said that since the incident she had been quite distressed running over it in her mind over and over again and wondering where she went wrong. He did everything to try and calm her down including telling her that errors were fairly common and she should learn from them. Ms Hobden raised other factors such as staffing, which she said affected her performance that evening. Mr Vasquez said he did not wish to address those issues.
Mr Vasquez explained to Ms Hobden that at the end of the fact-finding investigation he would be required to present his findings, which could result in anything from “educational, to written or verbal warnings to termination”. He said that whilst the outcome would be based on the fact-finding investigation he told Ms Hobden that “perhaps this would be more educational and said that this was to try and help her calm down”.
During this discussion Ms Hobden said that she did not want to administer medications anymore and felt like she could not do her job properly. She was reassured that the problem could be worked through and it did not warrant the amount of distress that she was bringing on herself. He then discussed EAP counselling and she was given contact numbers.
Mr Vasquez’s next interaction with Ms Hobden was at the fact-finding meeting on 10 February 2009. This was the first occasion he had met her. Also present was Julie Hines (union representative) and Caroline Marasovic, to take the minutes.
During the meeting Ms Hobden stated that she had no recollection of the relevant events with regards to preparing or administering the medication. She accepted, however, that as she had signed the medication chart she must have given the medication. The patient’s notes suggested that at 0200 hours Ms Hobden checked the patient’s BSL and gave the insulin but did not formally document it until 0450 hours. Whilst Ms Hobden was initially composed at the commencement of the meeting she became distressed as the meeting progressed.
During, and after the meeting, Ms Hines brought to their attention that Ms Hobden would be pursuing a stress claim because of the incident. She was not able to cope and was attending her doctor that afternoon. As part of the stress claim, Ms Hines confirmed that Ms Hobden was concerned about staff talking about her behind her back and that Ms Watson had apparently provided the patient’s husband with Ms Hobden’s details. Ms Hobson was concerned “that the husband may take some sort of recourse with the information that he had”. Mr Vasquez stated, “It was indicated that it was these things that were primarily stressing her”. (Statement at [25])
Mr Vasquez stated he provided Ms Hobden with support and he explained to her that once an AIMS report was made, there was a process to follow and staff could talk about it from a clinical perspective. Ms Hobden was also advised of the hospital’s policy to disclose incidents involving patients to their families, including, the details of any investigations and outcomes. Ms Hobden reiterated that she thought staff were talking about her and that they may have felt that she was incompetent. She also mentioned rumours that she had been stood down. She was encouraged to return to work and told it would assist with those misconceptions if staff were to see her back at work and getting on with her job.
Mr Vasquez was satisfied that the meeting ended positively. After the meeting Ms Hobden was reassured that the hospital would look into her concerns including whether her personal details had been provided to the patient’s husband. It has since been established with Ms Hobden that her personal details were not provided to the patient’s husband.
ARBITRATOR’S DECISION
The Arbitrator made the following findings at [68] of his Reasons:
“For the reasons set out in this statement my findings in this matter are:
(1) I am conferred with jurisdiction to deal with the dispute under Division 2A of Part 5, Expedited assessment, of Chapter 7 of the1998 Act.
(2) The Illawarra Area Health Service has not disputed Ms Hobden suffered a psychological injury in accordance with section 4 or the provisions of section 11A and her employment was a substantial contributing factor to that injury to satisfy the test under section 9A of the 1987Act.
(3) The Illawarra Area Health Service has established a defence in [that] Ms Hobden’s psychological injury was predominately caused by reasonable actions with respect to performance appraisal and/or discipline within the meaning of sub-section 11A(1) of the 1987 Act.
(4) That pursuant to section 11A of the1987 Act no compensation is payable by the Illawarra Area Health Service to Ms Hobden under the Act in respect of her psychological injury.”
ARBITRATOR’S REASONS
The employer did not challenge Ms Hobden’s psychological injury under section 4 or the fact that her employment was a substantial contributing fact to the injury under section 9A.
The burden of proof of a defence under section 11A is not satisfied merely by evidence that it is possible that a causal relationship exists (between the employment and the injury) Selstam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at 275.
The Arbitrator expressed the test under section 11A in these terms at [56] of his Reasons:
“Ms Hobden’s medical evidence in this case needs to be sufficient enough to take the ‘possible causal link’ between her psychological injury and ‘the rumour mill among her friends’ over the ‘precipitating incident’ on the night shift on 23 January 2009 to a ‘more probable than not’ causal link rather than being reasonable actions taken by the employer regarding ‘performance appraisal and or discipline’ relating to that incident.”
There is no corroborative evidence to support Dr Burman’s view that Ms Hobden’s illness was related to rumours amongst her colleagues.
There was no corroborative evidence to support Ms Hobden’s perception that her name and telephone number had been given to the patient’s husband.
Ms Hobden had not provided corroborative evidence that her perceptions were of “real events” (see Townsend v Commissioner of Police (1992) 25 NSWCCR 9; Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249).
In order to establish a section 11A defence, “predominantly caused” by the employer’s actions is assessed on the basis of whether those actions are stronger than, and prevail over, any other causes of the injury (Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45; (1998) 17 NSWCCR 70).
Having carefully considered all of the evidence the Arbitrator found that Ms Hobden’s psychological injury was on balance predominantly caused by actions taken by or on behalf of her employer in its enquiry and investigation of the ‘precipitating incident’, an investigation that led to performance appraisal of Ms Hobden and disciplinary action.
The Arbitrator accepted that the fact-finding meeting on 10 February 2009 constituted action taken or proposed to be taken with respect to “performance appraisal” and/or “discipline”.
The Arbitrator concluded the section 11A defence had been established. He found that Ms Hobden’s psychological injury was predominantly caused by the performance appraisal and/or disciplinary process instigated by the employer after the “precipitating incident” and the action or steps taken by the employer when viewed in its entirety (see Department of Education and Training v Jeffrey Sinclair [2005] NSWCA 465 at [96] and [97]) were reasonable. Accordingly the Respondent was not liable for the payment of compensation to Ms Hobden.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
a. incorrectly approaching the determination of section 9A by indicating that the onus was on Ms Hobden in respect of determination of causation in respect of section 11A;
b. incorrectly determining that ‘misconception’ does not constitute an injury arising out of the course of employment;
c. finding that Ms Hobden firstly required corroboration of her evidence and secondly, that there was no such corroboration;
d. making a finding against the totality of the medical evidence, which was unanimous in respect to causation, and
e. not making an award for Ms Hobden for the period of weekly compensation as claimed in the initial application.
SUBMISSIONS
Ms Hobden’s submissions
Ms Hobden made submissions in her appeal application and also filed submissions in reply to the Notice of Opposition. They are summarised below.
a. The Respondent conceded that Ms Hobden suffered a work related injury.
b. The section 74 Notice identified sections 59, 60 and 11A as the only issues in dispute.
c. At 3(v) of his Reasons, the Arbitrator correctly identified the only issue in dispute was whether the worker was prevented from receiving compensation by reason of the defences under section 11A.
d. The Arbitrator erred at [56] of his Reasons in approaching section 11A on the basis that it was the worker who was required to discharge the onus as to the cause of her injury. In considering whether the worker’s “perceptions were capable of findings of fact about real events”, the Arbitrator did not consider the matter based on the 11A defences but on the basis of sections 4 and 9A.
e. At [61] of his Reasons the Arbitrator erred in finding that a misperception did not constitute an injury arising out of the course of employment. A perception, regardless of whether or not it is misperceived by a worker is compensable provided that its basis is work related (see StateTransit Authority of New South Wales v Fritzi Chemler (2007) NSWCA 249 (‘Chemler’) at [67] to [69] and Solway v Australian Postal Corporation (2009) AATA 386 (29 May 2009) at [43] to [45]). Ms Hobden misperceived the actual events and on this basis, and subject to the medical evidence, an award ought be entered in her favour.
f. The Arbitrator erred in finding that corroborative evidence of the gossiping was required. At [48]-[51] of her statement Ms Hobden gave evidence that Ms Chapman criticised her for her mistakes and Ms Chapman could only have been informed of the error if the incident had been spoken about in Ms Hobden’s absence. This would amount to a breach of confidentiality and would render the disciplinary process unreasonable. In response to this criticism, Ms Hobden stated, “I was gob smacked” and felt “shut off’ ([50] of her statement) and experienced feelings of nervousness and apprehension. These were the first symptoms of psychological injury and did not materialise because of any disciplinary action, but upon being criticised by a colleague who had obviously been informed of her error.
g. Ms Hobden’s evidence was corroborated by Ms Sawyer who said at [12] of her statement that she said to Ms Hobden “I have been talking to Jo [Chapman] and heard you made a mistake” and added “I said this to Teena to try and make her feel better”. This was not only evidence of Ms Hobden being informed of the “rumour mill”, but also of the apparent distress that she was suffering from being informed of the gossip. Ms Sawyer in her statement at [16] also confirmed Ms Hobden was concerned about the patient’s husband knowing her name, being a breach of confidentiality.
h. The record of the fact-finding interview on 10 February 2009 recorded Ms Hobden’s concerns about the handling of the incident and in particular, the confidentiality of the process. Accordingly, the Arbitrator erred when he stated at [60] and [61] of his Reasons that Ms Hobden’s version as to the rumour mill and gossip were not corroborated.
i. The medical evidence confirmed that it was not the disciplinary process but the gossip and rumour mill that caused Ms Hobden’s injury.
j. The medical and lay evidence was consistent with Ms Hobden’s uncontested evidence, Ms Sawyer’s evidence and the record of meeting. In light of the onset of psychological symptoms immediately after being informed of the gossip, a finding that the rumour mill or gossip was not a substantial contributing factor, was not open to the Arbitrator.
k. The onus was on the Respondent to prove that the disciplinary action caused the injury. For the Respondent to argue causation, there must at least be conflicting medical evidence on the basis of a possibility (Crown Glass and Aluminium Pty Limited v Ibrahim (2005) NSWCA 1995)(‘Ibrahim’). In the absence of medical evidence establishing a causative link between the disciplinary action and the injury, it is not open to find that in fact the disciplinary process was the sole or predominate cause of the injury. EMI (Australia) Limited v Bes (1970 2 NSWR 238 at 242 (‘Bes’).
l. The Appellant’s actions in informing other staff members of Ms Hobden’s clinical error, for policy reasons, were not reasonable actions, taking into account the confidential nature of the process which was reinforced with Ms Hobden at the commencement of the fact-finding interview on 10 February 2009.
m. Rumours concerning the worker’s clinical error took place well before the fact finding interview on 10 February 2009. Conversations took place as early as 24 January 2009. Ms Hobden reported psychological symptoms occurring on 2 February 2009, prior to the fact-finding interview on 10 February 2009. The only concern raised by Ms Hobden was the handling of the incident at the ward level, which is consistent with her injury not being caused by the disciplinary proceedings but by rumours regarding her conduct.
n. The Arbitrator made no proper finding of a causative link between the worker’s psychological condition and the disciplinary process, which was mandatory in establishing a section 11A defence.
o. No inference should be drawn by Ms Hobden’s failure to attend the telephone conference and give evidence, because, notwithstanding attempts to inform her of the time and date of the telephone conference, she was not in fact informed of it and was unaware of it.
Respondent employer’s submissions
The Respondent’s submissions are summarised as follows:
a. Contrary to the Appellant’s submissions, the employer did not rely on the report of Dr Burman in its case. Ms Hobden’s submission with respect to the onus of proof is incorrect and fundamentally misconceived. The worker at all times bears the onus of proof with respect to section 4 and section 9A.
b. Whether or not the Arbitrator correctly interpreted the scope of the authority in Chemler, and even if that ground of appeal were upheld, the Arbitrator’s finding in favour of the Respondent under section 11A was correct.
c. Informing other clinical staff of a major medical error was not only desirable but a necessary part of the discipline (in the sense of instruction) according to the hospital’s policies and procedures.
d. No inference can be drawn from the comments of Ms Sawyer, nor is any admission made of inappropriate comments to Ms Hobden.
e. Ms Hobden’s perception of comments about her must be weighed against the evidence of all of the witnesses. This submission is enhanced by the worker’s failure to avail herself of the opportunity to give evidence of the conversation with Ms Sawyer.
f. The lack of conflicting medical evidence, this must be assessed in the context of all other evidence and the doctors’ reliance on the worker’s history.
g. Reliance is placed on the immediate temporal connection between the fact-finding meeting on 10 February 2009 and Ms Hobden’s attendance on Dr Ahmed later that same day.
DISCUSSION
The Arbitrator’s decision confirms that injury and section 9A were not in dispute in the proceedings before him (see Reasons at [11]). This was also confirmed in the Appellant’s submissions on appeal. In any event, even if injury and section 9A were in issue, I would have no hesitation in finding that the evidence, in particular the report of Dr Burman dated 12 March 2009, clearly establishes the worker suffered a psychological injury arising out of her employment and that employment was a substantial contributing factor to the injury.
The only issue in dispute before the Arbitrator concerned the matters identified in the notice under section 74 of the 1998 Act and in the employer’s Reply.
The section 74 notice provided as follows:
“Liability for your psychological claim for workers compensation is denied.
We have carefully considered your claim for ongoing workers compensation benefits following the psychological injury you sustained on or about 9/2/2009. We have undertaken an internal review and decided that your compensation benefits in respect of psychological injury are declined for the following reasons:
1.Section 11A of the Workers Compensation Act 1987 states that no compensation is payable in respect of a psychological injury caused by the reasonable actions of your employer, the South East Sydney & Illawarra Area Health Service
2.In your case, we consider that South East Sydney & Illawarra Area Health Service acted reasonably in their actions
3.Section 60 provides that payment of hospital or medical treatment is payable only if it is reasonably necessary as a result of a compensable injury. We do not consider that your treatment is related to any compensable psychological injury.”
The section 74 notice issued by the employer was defective and is unacceptable. The broad-brush assertion that the employer “acted reasonably in their actions” does not comply with the requirements of section 74. It does not properly identify the action or actions the employer relied upon as having been the whole or predominant cause of the psychological injury. That is not sufficient (see Roads and Traffic Authority NSW v Gentle [2009] NSWWCCPD 111 at [6] and [206] to [212] and Gray v Busways Gosford EMP Pty Limited [2009] NSWWCCPD 124 at [186] to [195]).
If an insurer or employer disputes liability in respect of a claim, or any aspect of a claim, it is required to give the claimant proper notice of the dispute. A section 74 notice must be in plain language and clearly and succinctly state the reasons the insurer disputes liability and the issues relevant to the dispute. If section 11A is relied on, the insurer must state which of the various parts of section 11A(1) it relies on (transfer or demotion or promotion, etc) and the basis for that reliance. The section is not invoked merely because an injury resulted from the employer’s reasonable actions.
The Reply to the Application relevantly provides:
“List all issues in dispute and the reasons for the failure to determine:
1.The applicant’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken on the part of the employer with respect to discipline and/or performance appraisal.”
In this case the defect in the section 74 notice was rectified, in part, by the Reply, which identified discipline and performance appraisal as the basis of the dispute.
I have proceeded on the assumption, although it is unclear from the Arbitrator’s reasons, that he gave leave under section 289A for this issue to be disputed. If he did not, then it appears that the case was conducted on the assumption that discipline and performance appraisal were the section 11A issues and no prejudice is argued on appeal. It is therefore appropriate to deal with the appeal on the basis that the issue in dispute is as set out in the Reply.
In these circumstances the only matter for determination by the Arbitrator concerned the employer’s defence under section 11A of the 1987 Act, which relevantly is in the following terms:
“11A No compensation for psychological injury caused by reasonable actions of employer
No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
I accept the Appellant’s submissions that the Arbitrator did not approach this task correctly. It is clear that the Arbitrator’s decision proceeded, in part, on the basis that Mrs Hobden carried the onus of establishing a causal link between her psychological injury and the “rumour mill” over what he described as the “precipitating incident” (the clinical error made by Ms Hobden on the morning of 24 January 2009) (Reasons at [56])). He was also persuaded that Ms Hobden had failed to provide corroborative evidence of her perceptions of certain events (at [61] Reasons). Whilst those matters were relevant to satisfaction of the requirement of section 4 and 9A of the 1987 Act (which was not disputed) they were not relevant to the issue before him, which was confined to determining whether or not the defence under section 11A was made out. For these reasons, his decision must be revoked and the matter redetermined.
The evidence clearly establishes that the worker exceeded her clinical responsibility of an EEN by, incorrectly administered a drug to a patient without authorisation and failing to communicate this to the Registered Nurse to whom she reported. The patient subsequently suffered a significant hypoglycaemic episode requiring urgent medical treatment to stabilise her condition. The incident was reported and the nurse unit manager discussed Ms Hobden’s actions with her and made enquires about the incident from the other staff on the particular shift. Ms Watson also reported the incident to senior nursing staff and in response, Mr Vasquaez instigated a fact-finding meeting.
The onus of establishing a defence under section 11A is on the employer, Ritchie v Department of Community Services [1998] NSWCC40; (1998) 16 NSWCCR 727; Department of Education and Training v Sinclair (2005) 4 DDCR 206; [2005] NSWCA 465.
The employer’s evidence has not clearly identified what action it relies upon to establish the defence under section 11A. I infer from the witness statements attached to the Reply that it relies on the communications between Ms Hobden and Ms Watson, the discussing of the incident in clinical and educational forums and the fact-finding meeting conducted by Mr Vasquez on 10 February 2009.
For the following reasons the employer has not established a defence under section 11A.
Firstly, the communications between Ms Hobden and Ms Watson focused on Ms Watson eliciting information as to the circumstances of the incident with the patient, what, if any information would be provided to the patient’s husband and encouraging Ms Hobden to return to duties. I am not satisfied that this action falls within either discipline or performance appraisal.
Secondly, the employer’s evidence that it was necessary, appropriate and reasonable, from a clinical and educational perspective, that incidents and errors are discussed by staff in ward round meetings (see Mr Vasquez statement at [120] above), does not evidence activity that could properly be defined as performance appraisal or disciplinary action under section 11A.
Thirdly, in respect of the investigative process, whilst Mr Vasquez stated that he informed Ms Hobden what the fact-finding process entailed, he did not articulate what the purpose of the fact-finding meeting was in his statement of evidence. He did, however, confirm that at the end of the fact-finding meeting he would provide his findings and recommended outcomes, which could be a recommendation for education, a written or verbal warning or termination of employment. I am satisfied that the meeting was investigative in nature. Mr Vasquez was clearly not authorised to implement any performance management, to discipline the worker or dismiss her from employment. His action was restricted to the making of recommendations, which may in due course have led to performance management, discipline and/or dismissal. I am therefore not persuaded on the evidence that this meeting fell within the parameters of section 11A(1). If I am wrong on this issue and it is accepted that the fact-finding meeting did amount to action taken or proposed to be taken by the employer with respect to either discipline or performance appraisal, there is no persuasive evidence that the fact-finding meeting was the whole or predominant cause of the worker’s psychological injury.
The employer relied on the immediate temporal connection between the worker’s participation in the fact-finding meeting on 10 February 2010 and her attendance on Dr Ahmed later the same day. There are two medical certificates issued by Dr Ahmed. The first certificate being a non-WorkCover certificate stating that the worker suffers anxiety and depression syndrome and was unfit for work from 9 February 2009 to 13 February 2009. The other certificate was a WorkCover medical certificate again certifying the worker suffering from anxiety and depression syndrome and certifying her unfit from 9 February 2009 to 24 February 2009.
It is clear from both the worker’s statement (see [59] above) and Mr Vasquez’s statement (see [119] above), that Ms Hobden did not seek immediate medical attention as a result of the meeting. The evidence is that the appointment with Dr Ahmed had been arranged prior to Ms Hobden’s attendance at the fact-finding meeting and her appointment with the doctor was discussed at that meeting.
No medical report was obtained from Dr Ahmed to explain his certificates or to articulate the history he obtained. Whilst there is a temporal connection between the worker seeking medical treatment and the fact-finding meeting, it is undeniable that the worker had been suffering from significant symptoms prior to that meeting.
Ms Hobden states that when she returned to work on 2 February 2009 she did not want to take on a patient load because she did not have the confidence to do so. She said at that time all that she could think of was that the patient’s husband was “going to come after me”. That was not surprising as it followed the worker’s discussion with Ms Watson where she was left with some doubt as to whether her name would be given to the patient’s husband as the person responsible for administering the insulin to his wife. That doubt was not dispelled until 4 February 2009 when the worker was finally told her name would not be disclosed to family members.
From as early as 2 February 2009, the worker also became concerned about what other staff were saying about her and her level of competency, when Ms Sawyer spoke to her about adverse comments made by Ms Chapman. On 3 February 2009 Ms Alonso informed Ms Hobden that the staff had discussed the incident at a meal break. Ms Hobden consistently reported being concerned and upset that she was the subject of staff discussion.
Ms Hobden stated that the following day, 3 February 2009, when she went on shift again, she was feeling nervous and comprehensive. On 4 February 2009 during the course of the discussion with Ms Watson she said that she became very distressed and upset.
When told on 5 February 2009 that there had been an incident report filed she was still upset and distressed. She was then told she would be required to attend a fact-finding meeting on 10 February 2009 after which time she said that all she could think of was the forthcoming meeting.
Although the worker expressed concern, indeed, anxiety, concerning her participation in fact-finding meeting, that fact is not of itself determinative of the cause of the worker’s psychological injury. Ms Hobden displayed symptoms of emotional distress from at least 2 February 2009 when she returned to work following a period of rostered days off work. That distress resulted from the incident itself and communication with Ms Sawyer, not from any action by the employer with respect to discipline or performance appraisal.
For these reasons, although there was a temporal connection between participation in the fact-finding interview and Mrs Hobden’s attendance on Dr Ahmed later the same day, I am not satisfied, if the fact-finding meeting was part of a discipline and or performance appraisal process, it was the whole or predominant cause of the worker’s psychological injury.
There is no dispute the worker was incapacitated from 10 February 2009 to 4 May 2009. The Application included pay slips for the relevant period. These disclose that pay rate for an Enrolled Nurse Medical Endorsement was $857.40 per week. I accept that this represents the current weekly wage rate as defined by section 42 and the rate at which compensation under section 36 for the first 26 weeks of total incapacity is to be paid and I make an award accordingly.
In view of my findings it is not necessary for me to consider whether the actions taken by the employer with respect to the disciplinary issues were reasonable actions.
CONCLUSION
Contrary to the Arbitrator’s finding I am not satisfied that the employer has proven that the worker’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to performance appraisal, discipline or dismissal of the worker.
DECISION
The decision dated 16 July 2009 is revoked and the following decision is made in its place:
1. The Respondent is to pay the Applicant weekly compensation at the rate of $857.40 per week pursuant to section 36 from 10 February 2009 to 4 May 2009.
2. The Respondent is to pay the Applicant’s costs of the Application for Expedited Assessment.
COSTS
The Respondent is to pay the Appellant’s costs of the Appeal.
His Hon. Judge Keating
President
8 February 2010
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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