Hopkins v Achieve Australia Limited - [2015] NSWWCCPD 54

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hopkins v Achieve Australia Limited [2015] NSWWCCPD 54
APPELLANT:	Joshua Luke Hopkins
RESPONDENT:	Achieve Australia Limited
INSURER:	AAI Limited t/as GIO and Employers Mutual NSW Limited
FILE NUMBER:	A1-5826/14
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	29 April 2015
DATE OF APPEAL DECISION:	4 September 2015
SUBJECT MATTER OF DECISION:	Causation of injury; psychological injury; challenge to factual findings; weight of expert evidence
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Beilby Poulden Costello
Respondent:	David Veasey Solicitor
ORDERS MADE ON APPEAL:	The finding and the award found in paragraphs one and two of the Certificate of Determination dated 29 April 2015 are confirmed.

BACKGROUND

Mr Joshua Luke Hopkins, who is 33 years of age, commenced employment with Achieve Australia Ltd (the respondent) in December 2009 as a carer or social educator. He was initially engaged on a casual basis and became a permanent employee of the respondent in February 2010. His duties required him to supervise and educate individuals, being clients of the respondent, who suffered mental disability. The clients were accommodated in premises provided by the respondent at various locations in suburban Sydney and were, it seems from the evidence, the subject of supervision by the respondent’s staff around the clock.
On 9 April 2010 Mr Hopkins was working at one of the respondent’s homes situated at Bella Vista where one of the resident clients was a recently discharged psychiatric patient. The client became violent and Mr Hopkins was unable to control him. Mr Hopkins completed the shift on that day and returned the following day, but found he was unable to continue working because the client in question made him “very stressed” and he was not able to “cope with that client”. Mr Hopkins was absent from work for four days, during which he received workers compensation benefits.
Mr Hopkins returned to duty with the respondent and remained in that position until a date in February 2013. In the course of his work, Mr Hopkins encountered particular difficulties with a client, whom I shall identify as Mark, the detail of which is summarised below. It was Mr Hopkins’ allegation that his work conditions, which included the difficult supervision of Mark and extremely long and taxing hours of work, had resulted in a psychological injury causing incapacity. Mr Hopkins has not returned to work since February 2013 by reason of significant ongoing health problems.
It seems that a claim made by Mr Hopkins with respect to ongoing workers compensation benefits was declined by the insurers of the respondent. The date of claim is not revealed on the evidence, however it appears that Mr Hopkins first obtained a WorkCover Medical Certificate from his treating psychiatrist, Dr Ben Teoh, who had first been consulted in August 2013.
Earlier proceedings were commenced in the Commission seeking orders with respect to weekly payments and medical expenses (matter number 2793 of 2014). Mr Hopkins alleged psychiatric injury. The application came before the Commission on 23 September 2014, at which time Mr Hopkins was granted leave to discontinue the proceedings in circumstances where the respondent agreed to make certain payments by consent. The Arbitrator noted that the respondent agreed to pay Mr Hopkins voluntary weekly compensation from 13 February 2013 to date at the rate of $900 per week following which it agreed to pay weekly compensation at the rate of $720 per week. The respondent, it was noted, also consented to the payment of medical expenses up to a total of $25,000 upon production of relevant accounts or other documentation.
Payments of weekly compensation in accordance with that agreement continued until 19 February 2015. Mr Hopkins had earlier, in August 2014, made a claim in respect of lump sum compensation against the respondent. In September 2014 Mr Hopkins’ solicitors were forwarded a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which liability in respect of lump sum compensation was declined. On 24 September 2013, a notice pursuant to s 54 of the Workers Compensation Act 1987 (the 1987 Act) was forwarded to Mr Hopkins, in which notice was given of the respondent’s intention to discontinue payment of weekly benefits.
The present proceedings were commenced by Mr Hopkins, by the filing of an Application to Resolve a Dispute, on 30 October 2014. That application was subsequently amended to include a claim in respect of weekly payments of compensation as well as the lump sum claim originally particularised in the first application.
The matter was listed before Arbitrator Brett Batchelor and proceeded to arbitration on 11 March 2015. The matter concluded on that day and the Arbitrator reserved his decision. On 29 April 2015, the Commission issued a Certificate of Determination, which was accompanied by a statement of the Arbitrator’s reasons, in which the following determination was recorded:
“The Commission determines:

1. The applicant has not discharged the onus of proof on him to show that he suffered psychological injury arising out of or in the course of his employment.

2. Award for the respondent.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 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.

ISSUES IN DISPUTE

The grounds of appeal relied upon by Mr Hopkins are to be found in an amended application filed with respect to the appeal in June 2015. Those grounds are as follows:
“i.     The Arbitrator erred in finding that the Appellant had not discharged the onus of the [sic] proof on him to show that he suffered a psychological injury arising out of [sic, and in] the course of his employment.
ii.      The Arbitrator erred in failing to have regards [sic] to the controverted evidence of the nature and conditions of the Appellant’s employment when having regard to the cause of the Appellant’s psychological injury.
iii.     The Arbitrator erred in failing to determine whether the Appellant’s use of cannabis arose as a result of the Appellant’s employment.
iv.     In accepting the pre-injury medical history, the Arbitrator erred in failing to consider the circumstances in which those histories were taken and in consequence the reliability of that material.”
The written submissions which have been filed by Mr Hopkins purport to address grounds one, two and three together. That approach by the author of the submissions renders the arguments raised of less assistance to the Commission than had each error been clearly identified, and had individual argument been advanced.
Notwithstanding the shortcomings of the written submissions, it is reasonably clear that Mr Hopkins asserts an error of fact on the part of the Arbitrator in determining that he had failed to establish the receipt of a psychological injury caused by the nature and conditions of his employment. The grounds relied upon, and the submissions made, suggest failure on the part of the Arbitrator to take into account evidence relevant to the issue of causation of the psychological injury.
As to ground four, submissions furnished in support suggest that, in his approach to the expert medical evidence, particularly that of Dr Samuell, the Arbitrator had, in some way, committed an error of fact, law or as to the exercise of discretion. These matters are more fully addressed below.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded and a transcript (T) has been produced and made available to both parties. The documentary evidence which was before the Arbitrator is noted at T2–T3. That material was also noted by the Arbitrator at [19] of his Reasons. Counsel appearing on behalf of Mr Hopkins sought, and was granted, leave to adduce further oral evidence of Mr Hopkins, and he was cross examined by the respondent’s counsel.

Summary of the evidence

There was a very large volume of documentary material tendered before the Arbitrator. Much of that material comprised hospital records concerning numerous attendances at, and admissions to, various hospitals. The matters recorded in those notes have been, on numerous occasions, recorded in hand writing that is indecipherable. Notwithstanding that difficulty, it is clear that matters recorded have been treated by the Arbitrator, in his determination of the dispute, as being both relevant and persuasive. Before an attempt is made to summarise that documentation, it is important, in my view, to note the content of an undated statement made by Mr Hopkins which was attached to his Application to Resolve a Dispute.
Mr Hopkins summarised his work and employment history which included training and working as a financial planner, following which he was employed by the NRMA as a battery assist driver. In 2006, Mr Hopkins commenced work at a credit union and was there employed as a customer service officer. In 2008, Mr Hopkins worked for approximately eight months as a truck driver.
Mr Hopkins stated that he commenced employment with the respondent in December 2009 as a social educator (I note in passing that evidence relied upon by the respondent suggests that, in fact, Mr Hopkins commenced employment in early 2008: see report of Maurice J Kerrigan, Investigator, dated 18 November 2013). He, at first, performed two shifts as “buddy shifts”. That work constituted his training. Thereafter he worked alone, caring for the respondent’s clients who resided in homes conducted by the respondent. Each of the clients suffered from a mental disability, some of which related to psychiatric conditions and others that had evolved by reason of developmental or congenital conditions. Mr Hopkins was made a permanent employee in February 2010. Mr Hopkins stated that there was no “regimen” for regular contact with management. On 9 April 2010, Mr Hopkins had the experience referred to at [2] above.
Mr Hopkins was, at some stage in early 2010, transferred to a home at Beaumont Hills. There were four clients present at those premises, three of whom were “easy to manage” however there was present the man known as Mark who was “aggressive” and suffered “regular manic episodes”. Mark was six feet tall and weighed about 110 kg. Mr Hopkins states that Mark was “physically confronting”. Mark suffered “from major outbursts during which time he would become physically violent”. Mark would often abscond from the premises and on occasions suffered seizures. The condition of that client appeared to Mr Hopkins to deteriorate over time.
Mr Hopkins stated that Mark’s behaviour, in 2011, deteriorated. Mark made threats to Mr Hopkins and the other clients. Mr Hopkins would need to remove Mark from the premises to ensure the safety of the other clients when such threats were made. Thereafter, Mr Hopkins was obliged to search for Mark and return him to the home. The police were often involved on such occasions. Mark, depending on his mental state, was either returned to the premises or admitted to a psychiatric unit. Between 2011 and 2013, Mr Hopkins estimated that Mark had had about “50 violent episodes a year”.
Mr Hopkins made the following summary of his work condition (at [22] of the statement):
“None of the social educators liked working with Mark. There was one other employee, Trevor, who had worked longer than I had at the house. Otherwise though, people would regularly resign their employment once they had to work with Mark or they would ask to be moved to a different house. Also, employees would frequently not turn up for their shift. I would let management know when this happened and I was told that I could not leave the house until another social educator had arrived. As a result I had to work back to back shifts. Sometimes I would have to work multiple shifts in a row. On one occasion I had to work four shifts without relief and then after an eight hour break had to work another back to back shift of 16 hours.”
Mr Hopkins stated that some of the respondent’s premises were “sleep-over houses” where staff were able to take a rest during a shift. Given Mark’s circumstances, Mr Hopkins was not permitted to sleep but rather had to remain on duty throughout each shift. It was further stated that “[i]n the week prior to 23 February 2013 [Mr Hopkins] was required to work 56 hours with one 8 hour break. During that break [Mr Hopkins] was so tense that [he] was unable to sleep.” Mr Hopkins further stated that at that time he was at his “wits’ end” and that he could “no longer cope”. Mr Hopkins ceased work on that day and has not returned to gainful employment.
Mr Hopkins stated that since ceasing work he has been “very depressed and upset”. He is anxious and rarely leaves the house. He suffers nightmares about “things that happened to [him] whilst working with [the respondent], in particular Mark’s violent tendencies.” He suffers panic attacks and sweats profusely. He finds himself short of breath. He stated that he did not consider himself “able to perform any work”.
Mr Hopkins’ statement, from [28]–[49] sets out a brief summary of his medical treatment dating from 2001 to January 2014. The detail of that treatment, where relevant, is addressed in the course of discussion below. Having regard to the reasons expressed by the Arbitrator, and the issues raised on this appeal, it is important to note that the following matters were stated by Mr Hopkins, concerning his use of marijuana (at [33]–[34] of the statement):
“In 2011, when Mark started to become violent, I had difficulty coping with the stress that was involved in dealing with him. I had trouble sleeping and I became depressed. I began to smoke marijuana to help me relax and to get me to sleep. I had smoked marijuana on several occasions in my early 20’s on a social basis. I had not used marijuana since that time. I found that when I smoked marijuana it would help me to unwind.
I have now stopped smoking marijuana because I realised that it was doing me no good.”
Mr Hopkins relied upon the evidence of his treating psychiatrist Dr Teoh, whom he first consulted on 19 August 2013. That evidence is found in two reports, the first dated 15 March 2014 and the second dated 5 February 2015. The detail of Dr Teoh’s evidence is addressed below; however I presently note that, in the first of those reports, Dr Teoh expressed the opinion that Mr Hopkins “suffered from a Major Depression (DSM IV Diagnostic Criteria)”. It was Dr Teoh’s opinion that such condition had been caused by his employment, that is, that he had experienced psychological trauma and stress as a result of his work. Dr Teoh made particular reference to “violent and unsafe situations at work. In addition [Mr Hopkins] has been working excessive hours”. Dr Teoh considered that Mr Hopkins was totally incapacitated.
The second report of Dr Teoh was requested by Mr Hopkins’ solicitors given the content of a report prepared by Dr Doron Samuell, clinical and forensic psychiatrist qualified by the respondent, dated 21 November 2014. That report of Dr Samuell had been prepared by that practitioner following his consideration of medical records relating to the presentation and treatment of Mr Hopkins at various hospitals. Dr Samuell, in that report, reviewed his opinion which he had expressed in an earlier report dated 14 February 2014.
In his initial report, Dr Samuell recorded a history, which is discussed below, and expressed the opinion that Mr Hopkins suffered from a Major Depression and made the observation that Mr Hopkins “is quite pervasively unwell”. Dr Samuell was of the opinion that Mr Hopkins was totally unfit for work by reason of his depression. Mr Hopkins had stated to Dr Samuell that he had been “consuming two or three grams of cannabis per week but said he has not taken the substance for the past four months”. When expressing an opinion Dr Samuell stated that Mr Hopkins’ cannabis use would have contributed to his depression but noted that cannabis use had ceased. He concluded that there was “insufficient evidence to support that cannabis was a substantial contributing factor”. Dr Samuell accepted that Mr Hopkins’ “employment was a major or substantial contributing factor given the complaints made by Mr Hopkins. Ultimately this may be a matter for factual determination”.
Dr Samuell, in his second report, noted that he had, since his earlier report, seen documents concerning Mr Hopkins’ medical history. Dr Samuell, having regard to the material which he had read, concluded that Mr Hopkins had “not been honest about his cannabis use and he has been misleading about his hospitalisations and family history”. Dr Samuell concluded that it was “self-evident” that Mr Hopkins’ difficulties well and truly pre-dated his employment. The relevant history was of “psychogenic hyperemesis and cannabis misuse”. Dr Samuell further noted that Mr Hopkins had “sought to revise his history to make it seem as though the cannabis abuse and hyperemesis were consequential of his employment”.
Dr Samuell expressed concern as to Mr Hopkins’ “current medical management” and the medication he had been prescribed. The clinical notes examined by Dr Samuell caused him to change his opinion and diagnosis. Dr Samuell expressed the view that Mr Hopkins’ difficulties “are essentially personality based and unrelated to employment in any way. He clearly has a pattern of longstanding substance abuse and now there are iatrogenic complicating factors”.
In a third report dated 4 March 2015, Dr Samuell reiterates matters earlier stated by him in his second report. In concluding his report Dr Samuell stated:
“Mr Hopkins had asserted that his cannabis use and hyperemesis were consequential of his employment. Most clearly, they pre-date his employment. He also omitted his misuse of amphetamines in the history he provided to me.
I advised you on the second occasion that Mr Hopkins’ cannabis use was in remission. I now have doubt about that. I would respectfully recommend that in view of his dishonesty, that third parties only rely on the narrative that can be externally verified.
Knowing now that there is a strong family history of psychological disorder, one must strongly consider that any psychological condition suffered by Mr Hopkins has significant genetic and environmental components.”
Dr Teoh was requested to consider Dr Samuell’s second report. Dr Teoh reported to the solicitors by correspondence dated 5 February 2015. That report summarises the content of Dr Samuell’s second report and recorded Mr Hopkins’ statement to Dr Teoh that he had found the relevant examination conducted by Dr Samuell “extremely stressful, and that he was so anxious that he felt physically and mentally distressed”. Dr Teoh records that Mr Hopkins was admitted to Hawkesbury Hospital for acute anxiety attacks and vomiting on the night after his interview with Dr Samuell. It was also recorded that Mr Hopkins “was very anxious and had not taken any drugs or marijuana, as he was with his mother”.

Dr Teoh expressed the following opinion:
“Mr Hopkins [has] a history of cannabis abuse, however, it is my opinion that his condition could not be completely attributed to his cannabis abuse. He had not used cannabis continuously, he admitted to an episode of use of cannabis of up to 15 cones a day in 2010 for three months following the death of his close friend who committed suicide.”
Dr Teoh noted that Mr Hopkins’ anxiety and depressive symptoms persisted during his abstinence from drugs or cannabis and concluded that such conditions “are not caused by cannabis abuse”. Dr Teoh further stated that Mr Hopkins’ “vomiting is not related to cannabis abuse, as he had persistent vomiting despite not having used cannabis”. Dr Teoh recorded Mr Hopkins’ then current medication regime and noted particular diagnoses unrelated to his mental state which, Dr Teoh stated were more “likely to cause his lethargy, [h]is lethargy is not ‘iatrogenic’”.

Hospital and medical practice notes

The voluminous material earlier referred to has been produced by four separate hospitals. The records demonstrate that Mr Hopkins had attended or been admitted to the Hawkesbury Hospital on 11 occasions between 3 August 2008 and 20 November 2013. Mr Hopkins had been treated at the Sydney Adventist Hospital on three occasions between 26 October 2011 and 2 March 2012. The documents demonstrate that there have been three admissions to the St John of God Hospital, the first during the period 12 March 2012 and 28 April 2012. Mr Hopkins was again admitted to that hospital between 23 October 2012 and 10 November 2012. The third admission to the St John of God Hospital was between 30 April 2012 and 22 May 2012.
The complaints with which Mr Hopkins presented to the various hospitals concerned intestinal problems, abdominal pain and cyclical vomiting.
The relevant histories as recorded in the hospital records are addressed below.
Clinical notes have been produced by South Pacific Private Hospital relating to pre-admission records made on 22 January 2013 which had apparently been completed by or on behalf of Mr Hopkins. Mr Hopkins had been referred to that hospital by his treating psychologist Dr Chris Bauer. The records reveal that Mr Hopkins was admitted for treatment on 11 February 2013, anticipated duration four weeks, and discharged from that hospital on 14 February 2013 against medical advice. His presenting problems concerned vomiting and abdominal pain. A history was recorded that Mr Hopkins smokes cannabis “heavily” and that he had been vomiting “since Friday afternoon”. When examined, it was recorded that Mr Hopkins suffered “THC dependence – daily 12 years worse since mate suicided 4 years ago”. Drug history included a note “THC dependence 40 cones/day 20 cones a day 3 wks ago”. The notes record an “impression” as being “cannabis hyperemesis syndrome”.
In evidence there is a copy of Dr Bauer’s letter of referral to South Pacific Private Hospital which recorded the following matters:
“Joshua presented to the practise [sic] 4 weeks ago with Anxiety Depression.
He has a 10 year history of cannabis abuse which has increased in the past 5 years since the suicide of his best friend. (30–40 cones per day)
Current Stressors:
·Guilt re marriage breakdown
·Death of his friend
·Work
Joshua works very long hours as a carer in a group home.
He has had 3 admissions to St John of God, Richmond in the past 12 months with last d/c November 2012.
He is separated from his wife and in a relationship for the past 3–6 months with Molly.
His family have significant addiction issues with the exception of his mother who is very supportive.
We have tried over the past weeks to help Joshua reduce his cannabis intake. Yesterday he was down to 15 cones per day. (Initially using a small amount Valium.)” (emphasis in original)
The copy of Dr Bauer’s letter of referral referred to immediately above has an addendum dated 19 August 2013 entered by Therese Dunford. It is there recorded that Mr Hopkins had attended St John of God Hospital “3 months ago”. It was also stated that, since his discharge, he has “managed to abstain from usage [of cannabis]”.
Mr Hopkins had been referred by his general practitioner to Dr Karl W Baumgart, specialist physician, in December 2011. Dr Baumgart had prepared two letters addressed to Dr A G Kanetkar, Mr Hopkins’ general practitioner, dated 19 December 2011 and 6 March 2012. Dr Baumgart’s first report recorded history of various troubling symptoms including allergic reactions, diarrhoea and vomiting. Following relevant testing, Dr Baumgart was of the opinion that Mr Hopkins was strongly reactive to a number of substances which are listed in his first letter to the general practitioner. In the second letter to the general practitioner, Dr Baumgart noted that Mr Hopkins had prematurely discharged himself from the Sydney Adventist Hospital. Dr Baumgart recorded that Mr Hopkins had “confessed to [staff at the Emergency Department] that he had been smoking marijuana”. Dr Baumgart advised that there should be an “appropriate drug and alcohol admission and support for the management of what must be marijuana hyperemesis syndrome, a different problem in addition to his allergy problems”.
The balance of the documentary evidence before the Arbitrator includes reports from other experts and documentary material, some of which had relevance to the issues raised before the Arbitrator. Those documents, where relevant, are addressed below.

Oral evidence of Mr Hopkins before the Arbitrator

Mr Hopkins gave evidence that, when examined by Dr Samuell in November 2014, he was “feeling very anxious and very intimidated”. Mr Hopkins accepted that he had not been “accurate” when giving Dr Samuell a history of cannabis consumption. Evidence was also given by Mr Hopkins that the “work environment and the prolonged hours” caused him to “become dependent on using marijuana to try and unwind [himself] and to deal with the situation at work”. That conduct was described by Mr Hopkins as “self-medicating”. Mr Hopkins also gave evidence of the prolonged hours that he was required to work without a break. His evidence was that he worked up to 40 hours “straight with no relief”. Evidence was also given in chief which related to Mr Hopkins’ difficulties dealing with the client Mark. During the course of his evidence in chief, Mr Hopkins was permitted by the Arbitrator to display a video on his mobile phone that he recorded during an incident when Mark, as described by Mr Hopkins, was throwing a brick at the window of the respondent’s premises from the outside. The circumstances demonstrated in that recording were described by the Arbitrator at T19.
When cross-examined, Mr Hopkins was questioned about various statements made by him from time to time to medical practitioners and others concerning his use of cannabis. Mr Hopkins disputed some of the matters recorded including a notation that his cannabis usage was, at one point in time, “about 30 to 40 cones a day”. Mr Hopkins also disagreed with the proposition put in the course of cross-examination that he was “dependent on cannabis long before [he] started working for the respondent” (at T38). A question was put to Mr Hopkins as to whether his “current nausea and vomiting has been a problem you’ve had since about 2001”. Mr Hopkins responded “on and off I’ve had a lot of stomach issues. Nausea may have come about”. Counsel concluded questioning by suggesting that Mr Hopkins had “deliberately withheld [the] history of [his] substance abuse and related medical issues in an endeavour to enhance [his] workers compensation [claim]”. Mr Hopkins disagreed with that proposition (at T49).

Submissions before the Arbitrator

It was submitted on behalf of Mr Hopkins that, in so far as cannabis usage was relevant, it would be accepted that any cannabis abuse was “causally linked to the nature of [Mr Hopkins’] employment” (at T54). It was also argued that “it’s clear that the documentation bears out an exacerbation of [Mr Hopkins’ medical conditions] during the period of his employment” (at T56). Reliance was placed upon the evidence of Dr Teoh concerning the causative role of work conditions.
Mr Hopkins relied upon the evidence of Associate Professor Michael Robertson, consultant psychiatrist, as found in his report of 7 November 2013, in which that practitioner accepted that Mr Hopkins’ working conditions were “the primary contributing factor to the post traumatic stress disorder and depression” which he suffered.
The evidence of Bernadette Keegan, psychologist, as found in her report dated 2 January 2015, was also relied upon by Mr Hopkins in support of this claim. Ms Keegan had taken a detailed history of Mr Hopkins’ difficult working conditions and it was accepted by that practitioner that the diagnosed conditions of depression, anxiety and PTSD had been a result of such conditions.
Counsel appearing on behalf of the respondent submitted that the incident which occurred on 9 April 2010 had no ongoing consequences relevant to Mr Hopkins’ claim. Emphasis was placed by counsel upon the hospital and other records which recorded history of recurrent nausea and vomiting in 2001 and 2002. It was also argued that the evidence suggested that Mr Hopkins’ usage of cannabis “goes back to the early 2000s” (at T79).
Counsel directed the Arbitrator’s attention to entries recorded at the St John of God Hospital in March 2012, where it was recorded that Mr Hopkins had a long history of cannabis abuse, frequent admission to hospitals with bouts of severe vomiting/epigastric pain. The diagnosis recorded in those notes was “cannabis dependence complicated bereavement, depression – moderate …” and other conditions including “cyclical hyperemesis syndrome secondary to cannabis, multiple food allergies…”. In summary, counsel’s approach to the matters recorded sought to emphasise the complicated medical and social background of Mr Hopkins and the relevance of those matters to his physical ailments, and noted that the work conditions were, generally, not raised as being historically significant.
Counsel argued that the inaccuracy of the history obtained by Dr Teoh must be taken into account when that evidence is being assessed.
Counsel made reference to the hospital notes of the St John of God Hospital concerning the admission which occurred shortly after Mr Hopkins ceased work. It was submitted that those notes revealed nothing concerning workplace conditions, but rather Mr Hopkins’ problems related to “unresolved grief and personality pathological, narcessitic [sic] personality traits”. The inference should be drawn, it was argued, that “[Mr Hopkins’] psychological difficulties were the result of cannabis abuse, not the other way around” (at T102). It was submitted that, on the evidence, the Arbitrator would not be satisfied that Mr Hopkins had established that he suffered an injury as a result of the nature and conditions of his employment.
In reply, counsel appearing on behalf of Mr Hopkins sought to emphasise the evidence of Dr Teoh, Dr Robertson and the earlier expression of opinion by Dr Samuell. The working conditions were described as “outrageous and unsafe” and that it would be accepted that those conditions were causally related to Mr Hopkins’ psychiatric condition. The views of Dr Samuell as expressed in his later reports were the subject of some criticism.

THE ARBITRATOR’S DECISION

Following a summary of the undisputed factual background to the proceedings, the Arbitrator (at [17]) identified the issues in dispute. The first of those issues concerned the dispute as to the receipt, by Mr Hopkins, of injury as alleged. The oral evidence of Mr Hopkins was summarised by the Arbitrator (between [21] and [38] of Reasons).
The Arbitrator proceeded to thoroughly summarise the evidence before him with careful attention being given to contemporaneous notes, in records and expert reports, of Mr Hopkins’ relevant medical history.
The Arbitrator accepted that Mr Hopkins “was working in difficult conditions… after his return to work following the incident of 9 April 2010”. He concluded that the April 2010 incident was “relatively minor” and did not cause Mr Hopkins ongoing distress upon his return to work at a different facility.
The Arbitrator stated (at [60] of Reasons) that:
“The question for determination is if the nature and conditions of [Mr Hopkins’] employment with the respondent were responsible for his psychological injury, or, as put by Dr Samuell, unrelated to his employment but as a result of long standing cannabis misuse.”
The Arbitrator noted that in oral evidence, Mr Hopkins had stated that “…because of the stresses he was under at work he self-medicated with marijuana” and that such assertion was repeated by him on a number of occasions during his evidence when giving non-responsive answers in cross-examination.
Following a close consideration of the evidence as to Mr Hopkins’ use of cannabis, the Arbitrator stated (at [71] of Reasons):
“Whilst I accept [Mr Hopkins’] evidence (including oral evidence) as to the difficult conditions under which he was working with the respondent until February 2013 when he ceased, I have significant reservations about his evidence as to:

(a) the extent of his past consumption of marijuana;
(b) the period over which he has been consuming marijuana;

(c) the reason for his increase in marijuana intake (ascribing it as he did to his employment with the respondent), and
(d) his explanations given in respect of the histories recorded on the occasions of his admissions to the various hospitals referred to above and to Dr Baeur [sic].”

The Arbitrator (at [77] of Reasons) made a finding that it was “evident that Dr Teoh did not have a correct history of Mr Hopkins’ past marijuana intake” when preparing his first report. The evidence concerning these matters as recorded by Dr Bauer was then summarised with some particularity. The Arbitrator proceeded to reach the following conclusion (at [82] of Reasons):
“My view is that [Mr Hopkins’] evidence is [sic, in] respect of his marijuana consumption, the period of time over which he was consuming marijuana and the reason for its consumption should not be accepted unless independent verification of that evidence exists.”
The Arbitrator made a further finding (at [83] of Reasons) that there was “no doubt that since about 2001 [Mr Hopkins] has suffered from significant gastro-intestinal symptoms and has consulted a number of practitioners over the years for his condition. He has had numerous attendances at, and admissions to, Hawkesbury Hospital.”
The evidence of Dr Baumgart was addressed by the Arbitrator and reference was made to that practitioner’s conclusion that an appropriate diagnosis was “marijuana hyperemesis syndrome”.
The Arbitrator returned to the evidence of Dr Teoh and noted the conflict concerning relevant history between that recorded by Dr Teoh and that revealed in the contemporaneous medical notes.
The Arbitrator rejected Mr Hopkins’ submission that his significant increase in cannabis usage was in some way related to his work and that he “self-medicated”.
A finding was made by the Arbitrator that Mr Hopkins gave an incorrect history to both Dr Teoh and Dr Samuell. A finding was made that the Arbitrator did “not think that the opinion of Dr Teoh as to the causation of [Mr Hopkins’] major depression, diagnosed by him, can be accepted. It has proceeded on clearly an incorrect history” (at [100] of Reasons).
Following consideration of the evidence of Dr Bauer, Associate Professor Robertson, Ms Keegan and Dr Samuell, the Arbitrator expressed the following conclusions (at [104]–[108] of Reasons):
“104. In my view Dr Samuell gives a succinct summary of the case in his report of 4 March 2015. I think that the likely diagnoses of [Mr Hopkins’] condition is cannabis hyperemesis as found by Dr Baumgart, Dr O’Rourke and Dr Samuell.
105. That condition, excessive vomiting as a result of cannabis intake, is consistent with [Mr Hopkins’] long history of ingestion of cannabis (marijuana). In my view it does not arise out of or in the course of his employment with the respondent.
106. Dr Baumgart noted this syndrome on 6 March 2012 in the context of his investigation of [Mr Hopkins’] food allergies (see [83] above). The doctor recorded (in his previous report of 19 December 2011) that when he saw the applicant on 2 December 2011 he suffered from diarrhoea and sometimes vomiting after eating out and noted skin prick tests showed marked reactivity to a number of substances and foods. In that earlier report Dr Baumgart said that the pattern of Mr Hopkins’s reactivity was one you might see in someone with eosinophilic gastropathy or oesophagitis, yet the previous endoscopy was not informative. He said that this may need to be re-visited at some stage.
107. As noted at [92] above this condition has been recently investigated by Dr Rajendran with the differential diagnoses noted therein.
108. I accept Dr Baumgart’s diagnosis of the condition of cannabis hyperemesis.”
The Arbitrator proceeded to reiterate his rejection of the evidence of Dr Teoh concerning the causation of the condition diagnosed as Major Depression. The Arbitrator expressly found that:
“[Mr Hopkins’] employment was not the cause of his increased intake of cannabis and [sic] of any psychological injury suffered by him.”
A further finding was made that Mr Hopkins did not suffer from a disease of gradual onset in respect of which the main contributing factor to either the contraction of such disease or the aggravation, acceleration, exacerbation or deterioration thereof was his employment with the respondent (at [112] of Reasons). The Arbitrator expressed his view (at [113] of Reasons) that Mr Hopkins had failed to discharge the onus of proof upon him to demonstrate that the psychological injury diagnosed by Dr Teoh and Associate Professor Robertson arose out of or in the course of his employment with the respondent. An award was then entered in favour of the respondent.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

Grounds one, two and three

The first three grounds relied upon by the appellant (noted at [12] above) appear to challenge factual findings made by the Arbitrator. As was stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, such findings may only be disturbed on appeal if it be established that the trial judge was wrong. Such will be established in those circumstances stated by the Chief Justice (at 506):
“It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
The submissions put in support of these grounds are expressed in broad terms which canvass the evidence as to causation of Mr Hopkins’ psychiatric condition. Criticism is made of the expert evidence relied upon by the Arbitrator in reaching his conclusion as to causation, with particular emphasis in argument put upon the evidence of Dr Samuell. Further, it is put that acceptance by the Arbitrator of the diagnosis expressed by Dr Baumgart (cannabis hyperemesis) was made in circumstances of an absence of any consideration by that practitioner of the depression diagnosed by Dr Teoh.

The appellant’s arguments, in my opinion, fail to acknowledge Dr Samuell’s view expressed in his report of 21 November 2014, after noting the correct history of the myriad health difficulties experienced by Mr Hopkins over a protracted period, that it was “self-evident Mr Hopkins’ difficulties well and truly pre-date his employment”. Those difficulties, having regard to the material relied upon by Dr Samuell, included depression and severe emotional difficulties. It was Dr Samuell’s opinion, as noted above, that Mr Hopkins’ psychological difficulties were “the result of cannabis abuse, not the other way around”. The Arbitrator found that Mr Hopkins had attempted, unconvincingly in his view, to attribute that THC abuse to work conditions.
Dr Samuell’s view is, perhaps, most plainly stated where he responded to the question from the solicitors as to whether the clinical notes provided cause for him to change his previous opinion and/or diagnosis (report dated 21 November 2014, p 6):
“The clinical notes have caused me to change my opinion and diagnosis. In my opinion, Mr Hopkins’ difficulties are essentially personality based and unrelated to employment in any way. He clearly has a pattern of long standing substance abuse and now there are iatrogenic complicating factors. Unfortunately because his doctors have encouraged him to understand his difficulties within the framework of employment, it has been counter-productive as he is focussing on a solution for something that has not caused his difficulties.”
It seems to be suggested that error is demonstrated by the Arbitrator’s failure to “engage in any analysis of [the work conditions] and their capacity to cause harm to [Mr Hopkins]”. Mr Hopkins’ submission is that the Arbitrator “simply discounts” the work conditions as being irrelevant “because [the Arbitrator] says there are other factors at play” (at [35] of submissions). This argument is, in my opinion, put in disregard of the true nature of the Arbitrator’s factual conclusion, that being that he was not satisfied on the evidence that it had been proven that there was a causal nexus between the work conditions and the psychiatric state of Mr Hopkins.
At [37] of submissions, Mr Hopkins argues that “[t]o the extent that Dr Samuell’s report was preferred by the Arbitrator to that of Dr Teoh’s, … such a finding was an error of law”. That submission must be rejected given that the question as to what weight is to be ascribed to particular evidence was a matter for the Arbitrator to determine.
The final submissions in relation to these three grounds, which appear at [38]–[40], make reference to the decision of the High Court in Dasreef Pty Ltd v Hawchar [2011] HCA 21.
The submission appears to be directed to criticism of the expert medical evidence relied upon by the Arbitrator, founded upon a suggested failure by those witnesses to “properly engage” with the issues. It must be assumed that Mr Hopkins’ argument is that the Arbitrator has erred in relying upon flawed evidence. Whilst it is correct that the brief reports from Dr Baumgart make no reference to work conditions as being relevant to his diagnosis and suggested treatment, that practitioner had been consulted, it seems from the report dated 19 December 2011, in relation to allergic responses experienced by Mr Hopkins. The relevance of Dr Baumgart’s evidence to the factual conclusion reached by the Arbitrator is that, once Dr Baumgart was aware of Mr Hopkins’ cannabis use, an additional diagnosis of marijuana hyperemesis was made by that practitioner. Treatment in respect of that condition was advised. That second diagnosis coincides with the diagnosis of Dr Samuell following revision of his earlier expressed view and, as stated by Dr Samuell, Mr Hopkins’ symptoms of depression are related to that illness and not causally related to work. The Arbitrator’s acceptance of that evidence was open to him and no relevant error is made out.
Mr Hopkins places further reliance upon the decision of the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita). It seems to be argued that the standards required of an expert witness as stated by Heydon JA in Makita had not been met. It is suggested that Dr Samuell simply rejects the contention that Mr Hopkins’ “depression is caused by anything other than [his] assumed previous cannabis use.” That submission must be rejected given Dr Samuell’s analysis of the known facts, following receipt by him of material that enabled a full and relevant history to be considered. The argument, as advanced, appears to be directed to the question of what weight is to be properly ascribed to the evidence of Dr Samuell. As earlier noted in these reasons, the question as to what weight is to be ascribed to particular evidence is a matter for the Arbitrator. No error concerning the acceptance of Dr Samuell’s evidence is demonstrated. Grounds one, two and three, for the reasons stated, are not made out.

Ground four

This ground appears to constitute a challenge to the manner in which the Arbitrator assessed the medical evidence concerning the question of causation of Mr Hopkins’ psychiatric condition, as diagnosed by Dr Teoh. It is argued that the Arbitrator’s approach to the evidence is “somewhat analogist [sic, analogous] to the situation in” Owen v Motor Accidents Authority of New South Wales [2012] NSWSC 650 (Owen). That was a decision of Justice S G Campbell which concerned the question as to whether, on judicial review, jurisdictional error on the part of a Review Panel convened pursuant to the Motor Accidents legislation had been made out. On the evidence before the Panel, and having regard to the reasoning expressed by it, it was his Honour’s conclusion that the Panel had identified the wrong issue, and thus jurisdictional error had been made out.
It seems to be Mr Hopkins’ argument that the fact finding process required of the Arbitrator in the present case is in some way analogous to the fact finding process of a Medical Panel. If that be the argument, it should be rejected. As is demonstrated by the reasons expressed by Campbell J, the Panel was charged with the obligation of determining whether a particular injury was “caused or materially contributed to by the motor accident”. As his Honour pointed out (at [50]), the motor accident did not have to be the sole cause, as long as it is a contributing cause, which is more than negligible. His Honour found that the Panel had not directed itself as to the law as required, hence his finding as to jurisdictional error.
The present matter concerns a question of causation at law. I have earlier expressed the view that there was evidence before the Arbitrator which would permit the conclusion reached by him concerning that question. It was, in my opinion, open to the Arbitrator to conclude as he did in rejecting the contention that the psychiatric condition suffered by Mr Hopkins was causally related to his work conditions.
It seems to be argued that the history taking, as recorded in the various hospital records and elsewhere, should have been assessed by the Arbitrator in a manner which took into account the “context” of the making of those records. Whilst the submissions in support of this ground are not clearly stated, it is argued that the matters recorded, both work related and otherwise, “were not necessarily mutually exclusive [sic] with [Mr Hopkins’] contention that the stress and other psychological impact of his work conditions aggravated his condition and caused him to self-medicate” (submissions [43]). The difficulty with that argument is that the Arbitrator has, on the available evidence, rejected both the argument concerning causation of the psychological condition and the suggested need to self-medicate. As noted above, this appeal is not a review or new hearing: s 352(5) of the 1998 Act.
My conclusion, as expressed earlier, that Mr Hopkins has not made out relevant factual error is fortified, in my opinion, by a careful examination of the records of Dr Bauer and those of the South Pacific Private Hospital which came into being at the very time Mr Hopkins ceased work. The admission of Mr Hopkins, which was advised by Dr Bauer, occurred on 11 February 2013. Under the heading “History of Present Illness” the following is recorded:
“Smokes Cannabis heavily, booked in for detox today at South Pacific
Vomiting since Friday afternoon. Went to Hawesbury [sic] Hospital on Saturday for the same, self discharged after feeling better. Vomiting started again this morning. Up to 20 times today.
No diarrhoea or altered bowel habit
No fever but describes sweating
Describes generalised abdominal pain, cramping comes and goes
Occasional dysuria
Has been showering frequently over the weekend as he feels this is the only way to control his vomiting
Has had similar episodes previously, last in November, gets them every 3 months, used to be every 6.”
It may be seen, having regard to the matters noted immediately above and at [39] of these reasons, that at the time Mr Hopkins ceased work he had been diagnosed by Dr Bauer as suffering “anxiety depression” and was to be treated by the hospital having regard to the illness with which he presented. The complexity of Mr Hopkins’ health problems is demonstrated by the matters recorded at the Hospital on that occasion. It is significant, in my view, that whilst a past medical history of depression and anxiety is recorded, there is no recorded description, nor complaint, concerning work conditions with the exception of a reference to working long hours made by Dr Bauer in his letter of referral.
Mr Hopkins (at [44] of submissions) asserts that he was “able to continue to work in that environment until a point in time where, according to his treating psychiatrist, it became too much and he was forced to cease his employment”. It must be remembered that Dr Teoh was first consulted six months after work ceased and that Mr Hopkins had had repeated absences from work for treatment in respect of, what was subsequently diagnosed as, cannabis hyperemesis. Having regard to the records before the Arbitrator, including those discussed immediately above, it was plainly open to the Arbitrator to conclude as he did concerning the question of causation and the suggested occurrence of injury. This ground is rejected.

DECISION

The finding and the award found in paragraphs one and two of the Certificate of Determination dated 29 April 2015 are confirmed.

Kevin O'Grady
Deputy President

4 September 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE