Hybinett v Illawarra Retirement Trust - [2010] NSWWCCPD 11

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Hybinett v Illawarra Retirement Trust [2010] NSWWCCPD 11
APPELLANT:		Suzanne Hybinett
RESPONDENT:		Illawarra Retirement Trust
INSURER:		Gallagher Bassett Workers Compensation NSW
FILE NUMBER:		A1-5284/09
ARBITRATOR:	Mr J McDermott
DATE OF ARBITRATOR’S DECISION:		21 October 2009
DATE OF APPEAL DECISION:		29 January 2010
SUBJECT MATTER OF DECISION:		Psychological injury; substantial contributing factor; weight of evidence; relevance of prior psychological symptoms; credit
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Slater & Gordon Lawyers
Respondent:	Vardanega Roberts Solicitors
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 21 October 2009 is revoked and the matter is remitted to a different Arbitrator for determination of the applicant worker’s entitlement to weekly compensation and the making of appropriate consequential orders consistent with the reasons in this decision.
The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The appellant worker, Ms Hybinett, started work with the respondent employer, Illawarra Retirement Trust (‘the Trust’), as a care service employee at the Trust’s Greenwell Gardens Retirement Village (‘the Retirement Village’) in the middle of 2005. On 12 February 2008, she was walking through a glass-covered walkway with a co-worker, Cristina Larritt, at the Retirement Village when she heard a loud revving noise from a car. She then looked over her shoulder and saw a car coming towards her. The car crashed through the walkway about one metre from her.

Ms Hybinett felt frightened, anxious and nervous. She alleges that she has suffered depression and anxiety since witnessing the accident. She continued her normal duties until she stopped work in July 2008 when she was unable to cope because of increasing anxiety and depression.

Ms Hybinett completed an Employee Accident/Incident Notification Form on 15 July 2008 in which she stated that she experienced stress, anxiety, depression, panic attacks, and confusion due to the accident on 12 February 2008. She completed a claim form on 18 July 2008 in which she described her injury as Post Traumatic Stress Disorder (‘PTSD’) due to the car accident. Her claim was initially accepted and compensation paid until 31 March 2009.

The Trust’s insurer, Gallagher Bassett Workers Compensation NSW (‘Gallagher Bassett’), disputed liability for the claim in a section 74 notice dated 19 February 2009 on the grounds that Ms Hybinett had not suffered a work related injury and/or her employment was not a substantial contributing factor to her injury.

Gallagher Bassett relied on a report from Dr Akkerman, psychiatrist, who did not agree that Ms Hybinett suffered from PTSD. He diagnosed her as suffering from a mild Adjustment Disorder and Anxious and Depressed Mood not related to the car accident or to any other incident in the course of her employment at the Retirement Village, but related to her “family circumstances” or “personal circumstances”.

In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 7 July 2009, Ms Hybinett claimed weekly compensation from 31 March 2009 together with hospital and medical expenses as a result of a “psychological/psychiatric injury/nervous shock” received in the accident on 12 February 2008. At the arbitration, Ms Hybinett amended the Application to add an allegation that her injury resulted from the “nature and conditions of the applicant’s employment between 1 January 2008 to the last day of employment”. On condition that the matter be dealt with on the basis of the evidence tendered, the Trust did not oppose that amendment (T2.22).

Both the judges of the former Compensation Court of NSW and the Presidential members of the Commission have criticised the use of the term “nature and conditions” (Mirkovic v Davids Holdings Pty Ltd (1995) NSWCCR 656 at 667; Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70 at [65]). It is a meaningless expression that is not used in the legislation and should not be used in applications. A claim that alleges an injury as a result of repetitive use over time, or as a result of an aggravation of a disease, should clearly state that fact and properly identify the alleged cause of the claimed injury. As the Trust did not object to the claim being pleaded in this way, I have approached the matter on the basis that the “nature and conditions” allegation refers to the general circumstances of Ms Hybinett’s employment in 2008.

In a Reply filed on 27 July 2009, the Retirement Village disputed liability on the grounds set out in the insurer’s section 74 notice dated 19 February 2009. The Arbitrator gave leave for the Trust to dispute incapacity. The primary issue in dispute was whether Ms Hybinett’s psychological condition (Adjustment Disorder and Anxious and Depressed Mood) had been caused by the car accident on 12 February 2008 and/or events at work between 1 January 2008 and 15 July 2008, or from non-work related events.

The Commission listed the matter for conciliation and arbitration on 22 October 2009. On that day, Ms Hybinett gave brief oral evidence and the parties’ legal representatives made lengthy submissions.

In a reserved decision delivered on 21 October 2009, the Arbitrator concluded that Ms Hybinett suffers from a psychiatric disorder (Reasons at [57]), but he preferred the conclusion of Dr Akkerman to the effect that her condition was related to her “family circumstances” and not to her employment. He therefore made an award for the Respondent with no order as to costs. The Commission issued a Certificate of Determination to that effect on 21 October 2009.

In an appeal filed on 17 November 2009, Ms Hybinett seeks leave to appeal the Arbitrator’s determination.

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 Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

Time

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

I grant leave to appeal.

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 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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are:

(a) whether the Arbitrator reached the true and correct position when he entered an award for the respondent, and
(b) whether the Arbitrator properly considered the evidence in determining that the events between 1 January 2008 and 15 July 2008 were not a substantial contributing factor to Ms Hybinett’s injury.

THE EVIDENCE

Lay Evidence

Ms Hybinett’s evidence

Ms Hybinett’s evidence is set out in two statements and in her oral evidence before the Arbitrator. She provided her first statement with the assistance of an insurance investigator on 24 July 2008. Her second statement is dated 15 April 2009 and appears to have been prepared with legal advice.

Ms Hybinett’s evidence in her first statement is that she has suffered depression and anxiety since witnessing the car accident on 12 February 2008. At about 3.10pm on that day she was walking along a glass covered walkway with a co-worker, Ms Larritt, when she heard a loud revving noise and then saw a car coming towards her in the walkway. The car then crashed through the glass wall of the walkway about one metre from Ms Hybinett. She felt terrified and was crying and upset for the rest of the day. Her shift finished at 3.15pm and her husband picked her up and took her home.

She had difficulty sleeping that night and when she did fall asleep she had nightmares about the accident. She continued with her normal duties, but was so worried about how she was reacting to the accident that she saw her local doctor “within a few days of the accident to talk about how it was affecting” her (Ms Hybinett’s second statement at [33]). She also claims that noise bothered her immediately after the accident and that she found traffic noise outside her home, something that had not previously troubled her, to be “very disturbing” (Ms Hybinett’s second statement at [36]). Since the accident she became distressed when she heard cars making screeching or revving noises.

Though she tried to carry on with her normal work she found that, from the day of the accident, she was very anxious. She found it very hard walking past the damage caused by the accident and she avoided that location after the walkway had been repaired. She also avoided socialising.

She took pre-arranged holidays between 29 February and 14 March 2008 during which time she attended her brother’s wedding. She spoke “on and on about the accident” at the wedding and found that she was “shaking very badly” and was “extremely nervous” because she was thinking about the accident (Ms Hybinett’s second statement at [47] and [48]). She found herself to be extremely anxious with a low mood from the day of the accident.

She claims that she started on medication from about March 2008 for the psychological injuries caused by the accident (Ms Hybinett’s second statement at [50]). She found life and work to be very tough because of the accident. She also found that she was drinking more after the accident and started binge drinking in late March 2008. When she drank she wanted to block out thoughts of the accident.

She struggled to cope at work because of the injuries caused in the accident. She found that she had poor concentration and was irritable and angry at work. She began to take things personally and over-reacted to events at work. She claims that she was “an easygoing and relaxed person before the accident” (Ms Hybinett’s second statement at [65]) but lost her sense of proportion because of her injuries and she felt she was being “attacked by people at work” (Ms Hybinett’s second statement at [67]).

Ms Hybinett identified the following events after the accident as adversely affecting her emotional state:

(a)     on a date after the accident Ms Hybinett identified a medication error. At a social function with workmates the following night, the manager, Renaee Brown, overheard her conversation about the medication error and said “that’s it, there will be no shop talk tonight!” This comment made Ms Hybinett feel “belittled and upset” (Ms Hybinett’s first statement at [10]);
(b)     a few weeks later Ms Hybinett expressed her concern to Ms Brown that the emergency warning buzzer had not sounded in her area. Ms Brown replied, “yes it did”. Ms Hybinett felt that the reply was “a bit of a slap in the face” and it made her feel as though Ms Brown thought she was incompetent (Ms Hybinett’s first statement at [11]);
(c)     Ms Hybinett prided herself on putting in a big effort at work and worked through her breaks and, when Ms Brown spoke to her as she did, she felt unrewarded for all her hard work (Ms Hybinett’s first statement at [11]);
(d)     Ms Hybinett had developed a nervous fidgeting condition with her hands where she would roll them in front of her. She describes it as “hand wringing”. A few weeks after the incident with Ms Brown, she attended a “change over meeting” where she felt that two co-workers were moving their hands in a sarcastic way. She felt they were mocking her and she felt demoralised and upset that they had humiliated her in public. She was upset that their actions showed no regard for her hard work and that Ms Brown was present at the meeting and took no steps to ensure that the workplace was free from that kind of behaviour (Ms Hybinett’s first statement at [12]);
(e)     as weeks passed, Ms Hybinett’s workload increased and her health deteriorated. She felt she had to take her breaks as she could not keep going (Ms Hybinett’s first statement at [13]);
(f)      she arranged to see Ms Brown in May or June 2008 to tell her that she was finding it harder to manage and that she would need to take her breaks. Before that meeting, Ms Brown saw her in the lunchroom and asked her what was wrong with her. Ms Hybinett replied that she was not getting her breaks. Ms Brown replied that everyone else who did that shift could manage. Ms Hybinett states that the meeting made her feel “terrible”, as though there was something wrong with her. She alleges that Ms Brown spoke to her rudely (Ms Hybinett’s first statement at [14]);

(g) later that same day, Ms Brown asked Ms Hybinett to attend her office to talk. Ms Hybinett told her that she could not cope with her duties. Ms Brown allegedly replied, “No, there is something else. You have changed. Even the way you look has changed”. Ms Hybinett referred to the hand wringing incident and Ms Brown responded that the workers’ actions related to another employee and that it was just a joke. Ms Brown then said, “What is wrong with you. Is it because your kids have moved to Sydney?” Ms Hybinett agreed that she missed her children. She then started crying and became hysterical, saying “ever since that car accident everything has gone wrong. I have been feeling depressed. I have been feeling so down that I spend the whole day in bed” (Ms Hybinett’s first statement at [15]). Ms Brown allegedly responded that “The residents at Cambewarra house had been worried about you. I have also been told that [you] have spoken rudely to one of the doctors”. Ms Hybinett replied, “There is no point in living anymore”. Ms Brown then called Greg Fleming, a clinical nurse specialist with the Retirement Village. When he arrived, he asked Ms Hybinett if she heard voices and if she had been abused as a child. She felt she was being interrogated and that it was inappropriate for him to ask her those questions. It made her “feel like a nutcase” (Ms Hybinett’s first statement at [15]). At Ms Brown’s suggestion, Ms Hybinett took a week off work and attended on her local doctor, Dr Karim, who referred her to a psychologist, Ms Musico, and
(h) on her return to work, Ms Brown said that the roster had been changed. Ms Hybinett’s hours had been reduced and she had been allocated to a shift at Callala house. This change made her feel upset as it took her away from Cambewarra house, an area where she had a very good working relationship with all patients.

On Tuesday 8 July 2008, Ms Hybinett felt anxious and unable to go to work. She felt as though she had lost her family by being moved from her house (Cambewarra house). She worked as normal on Thursday 10 July 2008, but after returning home she felt she didn’t enjoy the job anymore and she lay in bed and thought about everything over and over. She was on her way to work on Friday 11 July 2008 when she had a panic attack. As she walked down the street she burst into tears and her throat closed up. She returned home and broke down. She arranged to see Dr Karim that afternoon.

Ms Hybinett denied having suffered from depression or anxiety at any other stage in her life. She had not suffered any recent bereavement and had no financial problems. She described her family as her interest and said that her general health had been good for the previous few years, but she recently had a sore shoulder from work. She denied having ever consulted a psychologist at any other stage in her life and said that she first noticed she was suffering from stress immediately after she saw the accident.

Ms Hybinett described the contributing factors to her depression and anxiety at [30] of her first statement, where she said:

“30. Overall, the contributing factors to my depression and anxiety, are the car accident that I witnessed, and the way that I have been disregarded as a person because I spoke up. I feel that I have been intentionally taken away from the patients that I love, which gave me great job satisfaction. I am happy in every other aspect of my life.”

Ms Hybinett stated that she always got along very well with everyone at work and that she really liked her job. However, she felt that Ms Brown acted unfairly by transferring her to Callala house. She felt that the reduction in hours was “like a kick in the teeth” (Ms Hybinett’s first statement at [32]).

In her second statement, Ms Hybinett conceded that the events at work after the accident were examples of how she had “taken things out of proportion” (Ms Hybinett’s second statement at [73]). She felt that she was irritable and not coping at work as a result of the accident.

In respect of her family, Ms Hybinett stated that her children all lived away from home since they became adults and that she had never had a problem with that. In February or March 2008, her daughter Belinda told her that she was planning to return to live in the Nowra area. She did not recall telling Mr Fleming on 21 May 2008 that her problems were because of her family moving away from Nowra. She agreed, however, that she said she missed her family, but repeated that everything had “gone wrong since the accident” and that she had been depressed and down since the accident (Ms Hybinett’s second statement at [83]).

In respect of the other work incidents described in her first statement, Ms Hybinett said that she did not think they caused her problems (Ms Hybinett’s second statement at [97]). Those incidents did not help her condition, but with hindsight and the help of her treating doctors she now sees them as being a result of the injuries received in the accident on 12 February 2008. On the whole, they were not incidents where she was “behaving reasonably and being treated unfairly” (Ms Hybinett’s second statement at [98]). Similar situations arose at work many times before the accident, but they did not bother her.

Ms Hybinett stated in her second statement that she was not an anxious person before the accident and had never had problems with anxiety or sought treatment for anxiety prior to the accident. She felt that her personality was within the normal range before the accident and she described herself as “relaxed, friendly, caring and easygoing” (Ms Hybinett’s second statement at [135]). She again denied having suffered from any psychiatric or psychological illness prior to the accident.

She continued to suffer from anxiety, social phobia and avoidance, lack of motivation, hyper vigilance, noise intolerance, tearfulness, irritability and anger, hand wringing, disturbed sleep, fatigue, low concentration, poor memory, nightmares, panic attacks, and suicidal thoughts.

In her oral evidence before the Arbitrator, Ms Hybinett agreed that she had been upset and had a depressed mood most of the time when she saw Dr Karim in February 2007 (T11.36). She also agreed that the incident on 26 January 2007 when two men attacked her friends and said “I’ll kill you, you f’ing C” (T13.46) upset her at the time and that Dr Karim prescribed Zoloft. She added in re-examination that she did not return to see Dr Karim seven days after 9 February 2007, as the doctor suggested, because she “felt a lot better” (T14.50). She had no other problems with concentration, depressed mood or sleeping for the rest of 2007 (T14.52-56).

Belinda Lenihan

Ms Lenihan is Ms Hybinett’s daughter. Her evidence is set out in an email dated 16 April 2009. She spoke with her mother soon after the car accident and noted that she was extremely upset and distressed. In the year following the accident, she noticed a lot of changes in her mother’s behaviour. Her mother now finds it hard to be in social settings and has become a bit reclusive. She always seems agitated when in public places. Ms Lenihan often helps her mother with her housework, as she becomes extremely tired and does not seem to handle her life very well anymore.

When walking, her mother becomes extremely anxious and frightened by passing vehicles. Ms Lenihan has found it hard to spend a lot of time at her mother’s house because she is very “on edge and irritated”. Her mother cannot handle the young children, as she becomes “panicked and cannot cope”. Her mother is so anxious all the time it is hard for most people to be in her company. Her mother’s relationship with Mr Hybinett has deteriorated due to her stress. She is aware that her mother has had thoughts of self-harm.

Renaee Brown

Ms Brown provided a statement on 31 July 2008. She is the manager of the Illawarra Retirement Trust. She has known Ms Hybinett since Ms Hybinett commenced work with the Trust in May 2005. She described Ms Hybinett as a very good worker, very caring, but always an anxious person. She recalled an occasion approximately 12 months ago (mid 2007) when Ms Hybinett attempted to stop smoking and was very anxious and agitated. Though Ms Hybinett took a lot of sick leave, she had never been counselled or disciplined for excessive sick leave.

On 21 May 2008, Ms Brown received a complaint from one of the residents that Ms Hybinett “wasn’t herself”. Ms Brown had noticed “a few things over time” and she asked to speak to Ms Hybinett. She enquired if everything was okay and added “I know there is something wrong because you are not yourself”. She felt that Ms Hybinett was very “stand offish and abrupt”, which was not normal. Ms Hybinett responded, “Everyone has left me. I’m missing everyone and I don’t have anyone in my life anymore”. She was crying uncontrollably and very upset. Ms Brown was aware that Ms Hybinett’s children had all just moved to Sydney and that her sister had left town as well. She didn’t have her twin grandchildren to look after anymore.

Ms Brown telephoned Mr Fleming, a registered nurse with a background in counselling. Mr Fleming arrived within a few minutes and asked Ms Hybinett questions about how she felt. Ms Brown does not recall Ms Hybinett mentioning anything about suffering from witnessing the car crash. Mr Fleming asked if there were any incidents from the past that might be causing anxiety. Ms Hybinett became upset and responded that she did not want to talk about that. Ms Brown advised her to see her doctor and a counsellor. Ms Hybinett responded, “I know I’m unwell and I should do that”. Arrangements were made for Ms Hybinett to take one week’s annual leave.

Ms Hybinett worked until 10 July 2008 but has not returned. Ms Brown heard nothing more about the car accident from the time it happened until when Ms Hybinett ceased work. She recalls the accident and that Ms Larritt appeared to be more upset than Ms Hybinett.

In respect of the roster change, Ms Brown stated that Ms Hybinett had formed a close relationship with some of the ladies in the other house (Cambewarra). She also noted that Ms Hybinett appeared quite agitated when she spoke to her on 2 July 2008. The roster was changed to accommodate two new units and to make better use of staff.

To Ms Brown’s observation, Ms Hybinett never appeared to struggle with her workload and her performance had never come under question. Ms Brown had never had a conflict or personality clash with Ms Hybinett. Ms Brown confirms that Ms Hybinett complained about not having her meal break.

The Trust conducts annual performance appraisals of its workers. At the last appraisal of Ms Hybinett in 2007, no adverse issues arose and Ms Hybinett made no complaint of suffering from stress.

Ms Brown had noticed a change in Ms Hybinett’s behaviour and she was of the opinion that it was family related, not work related. Ms Hybinett had often said that she felt very lonely since her family moved away.

Greg Fleming

Mr Fleming also provided a statement on 31 July 2008. He worked at Greenwell Gardens as a clinical nurse specialist and is also a clinical hypnotherapist with a background in counselling. He has known Ms Hybinett for some years, having taught her at TAFE when she completed her Certificate III in aged care about four years ago. He met her again when he started employment with the Trust in January 2008.

On 21 May 2008, he received a phone call from Ms Brown requesting him to attend her office. When he arrived, he noticed Ms Hybinett to be distressed and agitated. She was crying and finding it difficult to talk. He asked her what was going on and she said, “I can’t cope. I am having problems at home. My children have left home”. He asked if she had any other people to support her and she replied “only my sister”. She said that her husband was very quiet and didn’t give her much support. She added that she had felt suicidal and that life wasn’t worth living.

Mr Fleming formed the view that Ms Hybinett was depressed. He spoke to her about the various forms of depression and told her it was important that she get proper treatment and medication. Ms Hybinett said that she had issues in her childhood but was not going to let Ms Brown know about that. Mr Fleming recommended that she seek counselling and said she could use the Employee Assistance Program.

Mr Fleming asked if Ms Hybinett had been taking medication for depression and she replied that she had, but she stopped because it gave her shoulder pain. Mr Fleming then asked if the situation when the car drove through the passageway had contributed to her current situation. She replied:

“I don’t feel that’s the case. No. I have had a long discussion with Renee [sic] and Cristina on the day of the incident. I have been suffering depression for some years.”

Mr Fleming recalled the car accident as he was at work on that day. He spoke to both Ms Hybinett and Ms Larritt and told them to use the Employee Assistance Program if they felt the need. In his opinion, Ms Larritt appeared more visibly upset than Ms Hybinett.

Cristina Larritt

Ms Larritt provided a statement on 22 April 2009 to an investigator acting on behalf of NRMA insurance. She works at the Retirement Village as a care service employee and she was with Ms Hybinett on the day of the car accident. She confirms the circumstances of the accident and that Ms Hybinett was shaking and crying immediately after it.

Ms Larritt spoke to Ms Brown at about 5.00 pm that day and told her that she was worried about Ms Hybinett because she saw “how much she was screaming after the accident”.

Ms Hybinett had about a week off work after the accident. Ms Larritt then saw her at work and she said that she “still had nightmares and could not walk through the parkway [sic, pathway]”.

Medical evidence

From early 2005 Ms Hybinett attended the Junction Street Family Practice where she received treatment from several different doctors. Clinical notes from the practice are in evidence and reveal that Ms Hybinett consulted Dr Karim on 9 February 2007. The notes for this attendance state:

“depressed mood most of the time.
difficulty concentration
difficulty sleeping on and off
symptoms started after last Australia Day – middle of the night walking in the road 2 man [sic] tried to harassed [sic] her, they want to kill her.”

Dr Karim prescribed Zoloft and recommended a review in seven days. The notes do not suggest that that review took place because Ms Hybinett’s next contact was on 2 April 2007 for an unrelated matter.

The next entry in the notes is on 30 April 2007 when Ms Hybinett attended complaining of a headache. She attended the practice on six further occasions in 2007 for unrelated matters.

She attended on Dr Karim on 8 January 2008 stating that she wanted to stop smoking. She was counselled and given a script for Zyban. She returned on 22 January 2008 complaining that she was sick.

Ms Hybinett saw Dr Karim on 6 February 2008 complaining of having had left shoulder pain for four days. The doctor prescribed anti-inflammatory and pain relieving medication. Dr Karim took the following history:

“psychiatric:
Poor sleep. Early morning wakening. Low self esteem. Depressed mood. Not anxious. Stress at work. Relationship problem. No financial problems. No recent bereavement. Irritability. No irrational fears. No panic attacks. Compulsive behaviour. No delusions. No auditory hallucinations. No visual hallucinations. No suicidal thoughts. No suicidal attempts. No substance abuse.
Actions:
Letter written re. K10 Scale.
Letter printed.
Letter written re. Mental Health Plan.
Letter to Ms Linda Pfeiffer printed.
Letter written to Ms Linda Pfeiffer re. Referral.
Prescription printed: Panadeine Forte 500mg/30mg Tablet 2 three times a day prn.
Prescription printed: Zoloft 50mg Tablet 1 Daily.
Medical Certificate given.
Review interval:
Review if problem persists.”

Ms Hybinett saw Dr Karim again on 13 February 2008 complaining of left shoulder pain. On examination there was mild to moderate tenderness in the anterior aspect of the shoulder. Abduction was limited. The notes make no mention of any emotional or psychological symptoms.

Ms Hybinett attended on Dr Karim on 20 February 2008, 11 March 2008, 2 April 2008 and 8 May 2008. At none of those attendances did she make any complaint of any emotional or psychological symptoms.

Ms Hybinett attended again on Dr Karim on 21 May 2008. The clinical notes record the following:

“History:
Psychiatric:
Poor sleep. Early morning waking. Normal self esteem. Depressed mood. Anxious. Stress at work. Relationship problem. No financial problems. No recent bereavement. Irritability. No irrational fears. No panic attacks. No compulsive behaviours. No delusions. No auditory hallucinations. No visual hallucinations. No suicidal thoughts. No suicidal attempts. No substance abuse.
teary
lack of motivation/concentration
stopped taking zoloft for 3 wks
she feels that zoloft worse [sic] her shoulder pain
nervous breakdown at work today
husband took her to the surgery
still teary/anxious
did not visit the Psychologist yet.
advised to visit the Psychologist ASAP
effexor added
advised to contact me if any concern”

In his referral letter to Ms Musico of 21 May 2008, Dr Karim stated:

“Thankyou for seeing Suzanne Hybinett, age 44 yrs, who ahs [sic] been suffering from anxiety/depression for 4 [sic] few months. I have done [a] mental health plan a copy attached here with. It will be highly appriciated [sic] for your opinion and management.”

Dr Karim saw Ms Hybinett again on 4 June 2008 when she complained of pain in her foot and ankle. He advised her to stop taking Effexor for one week.

At review on 11 June 2008, Dr Karim noted that Ms Hybinett’s leg pain persisted on and off and that her depression was worse. She had difficulty coping at work. The doctor discussed alternative medication (Cipramil) and the side effects. He provided a script for Cipramil and noted that Ms Hybinett was waiting to see the psychologist the following month.

Ms Hybinett saw Ms Musico on 30 June 2008. Ms Musico’s notes refer to Ms Hybinett having experienced anxiety when she was 35 years old and her children were teenagers. She experienced agoraphobia and loss of confidence. Obtaining employment assisted as did hypnosis assistance from her general practitioner. Ms Musico also recorded the car accident at work and that Ms Hybinett had left shoulder bursitis. She also recorded work issues of “no breaks”. She recorded Ms Hybinett to have the following symptoms:

“Anxiety symptoms: startle reaction ++ / wringing hands ++
o   affected by car – car noises bother her now.
sleep disturbance
o   before car incident – assaulted
o   childhood trauma
neglected”

On 11 July 2008, Dr Karim recorded:

“Panic attack on the way to work
shaking of her hands
crying
difficulty breathing
feeling of dying
doesn’t have good working relationship with her boss
husband very supportive
feeling that she wont’t [sic] be able to continue her job.
Crying all the time during visit. Advised cto [sic] start Diazepam”

On 14 July 2008, Ms Hybinett telephoned the surgery requesting a work certificate.

Ms Hybinett saw Dr Karim on 15 July 2008. His notes record:

“Recurrent painic [sic] attacks over the last few months
had incident in February/2000 while working in Greenwell Garden
A car crash [sic] through the glass walk way inside the building and Sue was in the Corridor at the time infront of the car and was unhurt.
After the incident Sue has been suffering from recurrent bad dream [sic] about the incident.
Also C/O she becomes freeze [sic] every time after hearing [a] car noise
poor sleep/lack of concentration
Denies hallucination/delusion
Denies suicidal ideation/self harm tendency”

Ms Hybinett saw Dr Karim again on 28 July 2008. Dr Karim recorded that Ms Hybinett was referred to a psychiatrist (as per discussion with her Case Manager). He also noted that she was sleeping poorly and had mild panic attacks. He increased her dose of Diazepam and referred her to Dr Gordon Davies, psychiatrist.

In a report of 13 August 2008, Ms Musico recorded Ms Hybinett’s presenting problem as follows:

“Suzanne was reporting feeling depressed and anxious, with panic attacks. There were two identifiable stressors reported in recent months that appeared to be perceived as causing the current episode of negative emotional states. The stressors were identified as follows:
1. Involvement in a car accident at work;
2. Work Issues.
Suzanne had been off work since July, 2008, and did not feel able to return at this stage. Socially, Suzanne was dependent on her family to support her, in order to go out. She was reporting symptoms of avoidance behaviour.”

Ms Musico took a history that Ms Hybinett loved her work at the Greenwell Gardens Retirement Village and that she described a great sense of achievement from it. Ms Musico added:

“The work issues reported causing stress for Suzanne were partly due to workload, not having any breaks during her shift, changes to her duties, and difficulty communicating her concerns to her supervisor. Suzanne perceives that any attempts to assert herself with her supervisor lead to ‘punishment’, eg reduced work hours, etc. She also perceived a lack of confidentiality by her supervisor in dealing with her situation. Suzanne describes a situation where another colleague, (a registered nurse on staff, who also has a history of drug and alcohol counselling), was brought in to question her about her past as though he was her counsellor. This situation caused her great distress, and she describes bursting into tears. Suzanne now describes feeling very anxious in dealing with her supervisor, and has lost trust in her.”

In respect of the car accident at work, Ms Hybinett described thinking that she was going to be killed. She also described to Ms Musico symptoms of “hyper vigilance, especially to car noises, including startle responses, sleep disturbance, hand wringing, etc”. Ms Musico felt that the symptoms described were consistent with a diagnosis of PTSD.

In terms of past relevant history, Ms Musico noted that the worker was in a stable marriage and had close family relationships with her adult children. She noted that Ms Hybinett experienced anxiety at the age of 35 years, but appeared to have recovered from that with the assistance of hypnosis therapy. The worker was not in an emotional state to return to work.

Under the heading “Contribution of work to injury”, Ms Musico recorded:

“According to Suzanne, the car accident is reported as the commencement of her emotional deterioration and poor coping. Work stress around this time appears to have exacerbated her emotional states.”

On 28 August 2008, Dr Karim recorded that he saw Ms Hybinett and that she complained of being unsteady on her feet and of poor sleep. At that stage she was visiting her psychologist (Ms Musico) regularly and was due to see Dr Davies the following week. She felt worthless, though she denied suicidal ideation.

Ms Hybinett saw Dr Davies on 1 September 2008 and he reported to Gallagher Bassett on 12 September 2008. He took a detailed history of the car accident and that Ms Hybinett had been very upset and screaming hysterically at the time. After she went home, she continued to think about the accident and had nightmares about it. She returned to work the next day and “tried to get on with things”. She coped for a time but she had been generally nervous, was having nightmares and would become upset when a car revved its engine in the street. Since the accident, she developed a habit of rolling her hands.

About two months after the accident, Ms Hybinett had some conflict with her manager (Ms Brown). She said that there had been a build up over little things and that she had discovered a medication error. She had been talking to one of the nurses about it when the manager yelled at her. She had become “really on edge at work”. Her job had partly changed to involve assisting in the dementia unit where people had become more demanding and she found herself “overreacting to everything”.

She made an appointment with Ms Brown to talk about her problems because she was not getting any meal breaks. At that meeting she felt she was “being spoken down to”. Ms Hybinett broke into tears and became acutely anxious and panicky. She also referred to an incident when she felt that other staff were “taking the mickey out of her” during a report by moving their hands.

Another staff member attended the meeting with Ms Brown and asked her questions. Ms Hybinett said that this interrogation made her more upset. Ms Brown then suggested that she take a week off work. At the end of that week off Ms Hybinett returned to work “with a fresh approach”. However, when she returned to work she discovered that the rosters had been changed, her hours reduced, and she had been placed in a new area where she did not know the residents. She felt she had been punished for being assertive. The next day, Ms Hybinett had a panic attack on the way to work. She saw Dr Karim and was referred to Ms Musico.

Ms Hybinett complained to Dr Davies that she remained nervous and still had nightmares, though they were more about work than the car accident. She woke during the night. She had been taking valium but it made her lose her balance. She felt angry and that she should just give up. She had put on weight. She was “self isolative” and tended to hide in her house as she was embarrassed about being off work.

Dr Davies felt that Ms Hybinett appeared pressured, tense and restless. Her mood was lowered but there was no evidence of any thought disorder. Ms Hybinett completed the “Depression, Anxiety and Stress Scale on which she scored in the severe range on all subscales”.

Dr Davies took a detailed history of Ms Hybinett’s personal history and noted that she had not had a good childhood. Though she copied a stutter from the girl next door, she had no other history of habit disorder.

Dr Davies diagnosed Ms Hybinett to have an Adjustment Disorder. Under “Summary and Opinion”, he concluded:

“Mrs Hybinett is a forty-five year old woman who developed symptoms of anxiety and depression following an accident at work where a motor vehicle had collided with a walkway close to her. The history indicates that following this accident Mrs Hybinett had not been coping in her usual manner at work and that this had been noted by management before she had reported her symptoms.
The situation had then been compounded by a series of what would otherwise [have] been minor incidents at work so that Mrs Hybinett’s depression had increased to a level that she was no longer able to cope with work.

Mrs Hybinett is now being seen by a psychologist but if she does not progress significantly the use of some medication will have to be reconsidered. Mrs Hybinett has some reasonable concerns about this and if it were required she should be managed by a psychiatrist.
From a rehabilitation point of view I would recommend that Mrs Hybinett have the support of an external provider with the object of negotiation [sic] a suitable progressive return to work as she improves and to provide support and mediation in her dealings with management.”

Ms Hybinett saw Dr Karim on 9 October 2008 when he recorded that her panic attacks had improved “a bit”. She had stopped taking Diazepam, but was still taking Cipramil.

Dr Karim recorded that Ms Hybinett’s condition was the same when he saw her on 27 October 2008.

On 12 November 2008, Ms Musico reported to Dr Karim that Ms Hybinett had demonstrated improvement in her coping on an every day level. She had decided not to return to nursing with the Trust and was investigating the idea of retraining.

Ms Hybinett attended on Dr Karim on 26 November 2008 when he recorded that her condition had been a bit worse than the previous month. She had a bad dream every night. She also complained of pain in her left shoulder and having difficulty sleeping because of that pain.

Ms Musico reported again on 12 January 2009 that Ms Hybinett had presented with anxiety symptoms consistent with severe PTSD following a car accident at work. She participated in nine therapy sessions. Despite being on anti-depressant medication, Ms Hybinett demonstrated ongoing severe anxiety throughout those sessions. Though subtle gains were made, the improvement had been extremely slow. Therapy progress had been complicated by ongoing pain in her left shoulder and by psycho-social stressors unrelated to work issues. Her progress was likely to be slow.

On 13 January 2009, Dr Qureshi took over as Ms Hybinett’s general practitioner in place of Dr Karim. On that day he had a long consultation with Ms Hybinett about her condition. He recorded that she was still having nightmares, panic attacks and anxiety. She had a fear of her workplace. Dr Qureshi advised her to stay off work and follow the advice of Ms Musico. Dr Qureshi continued to see Ms Hybinett and provide WorkCover certificates declaring her unfit for work until 26 October 2009.

Dr Qureshi reported to Ms Hybinett’s solicitor on 30 March 2009. He noted that after the car accident she had suffered from recurrent bad dreams, poor sleep, and a lack of concentration.

Associate Professor Kaplan, forensic psychiatrist, examined and reported on Ms Hybinett for medico-legal purposes on 1 June 2009. He took a history of the car accident and that she was shaken up and disturbed by it. She continued to work, but things “went wrong” as a result of problems with he employers. She had an excessive workload, did not get breaks during her shift, had duty changes imposed on her, and had problems with her supervisors. She also had a conflict with her manager (Ms Brown) two months later after she had discovered a medication error. She felt she had been punished for asserting herself and became upset when a colleague (Mr Fleming) tried to take a history, causing her to become distressed. On her return to work she found that the rosters had been changed.

Ms Hybinett now feels that she tended to “take things wrong” at work, was overreacting and that her employers were probably not as tough on her as she thought at the time. She feels that the counsellor (Mr Fleming) was trying to help her but she misunderstood.

Ms Hybinett’s condition was dominated by anxiety and some depression. She described her mental state as being vague, distressed and caught up in her thoughts. She had panic attacks, chiefly in public, and was intensely agoraphobic. She found crowded places (such as supermarkets or waiting rooms) difficult and she struggled to socialise or talk to people. If she has to go out, she will experience rising anticipatory anxiety and often make excuses not to go. Her husband or her daughters will usually accompany her.

Associate Professor Kaplan felt that Ms Hybinett described a typical pattern of agoraphobia with secondary panic attacks. Such a reaction is relatively uncommon as a response to traumatic situations such as she experienced in the car accident, and has probably occurred in someone who is predisposed to anxiety.

In addition to anxiety, Ms Hybinett was irritable, snappy and prone to tears. She had also put on weight. She found it hard to talk to people, which added to her reclusiveness and her desire to avoid socialising. Ms Hybinett was doubtful whether she had made progress, though she found the counselling reassuring. She planned to talk to her psychiatrist about an increase in medication.

Under “Past History”, Associate Professor Kaplan noted that Ms Hybinett had not had a good childhood and had a stutter. Her grandmother died in 2008, but that did not cause any great distress. She denied any previous episodes with anxiety or depression, aside from having had hypnosis some years ago to give up smoking. On examination, Ms Hybinett was notably anxious, constantly wringing her hands, shifting in the chair and appeared restless. She reiterated how anxious she became when she had to talk to people and how difficult it was to go out in public with crowds and how upset she had been by the problems in the workplace. Whilst she appeared distressed, she did not become tearful and denied suicidal ideation. The impression at interview was of a socially anxious and agoraphobic woman.

Commenting on Dr Davies’ report, Associate Professor Kaplan stated that Ms Hybinett did not mention having anxiety symptoms during her upbringing, denying that she was shy and saying that she had been quite confident. The likelihood that she had been anxious added to the possibility that she would develop anxiety symptoms such as she now has.

Though Ms Hybinett was preoccupied with the accident when interviewed by Associate Professor Kaplan, her presentation was dominated by agoraphobic and socially phobic anxiety, concerns about her work situation, fear that she would never be able to recover, and concerns about withdrawing from her husband. He concluded that “Ms Hybinett has an Adjustment Disorder with depression and anxiety as a result of (1) the subject accident, and (2) subsequent problems in the workplace”. It was not possible for him to distinguish between the two conditions. PTSD could be excluded as Ms Hybinett did not have the full pattern of symptoms. Ms Hybinett remained distressed, was becoming increasingly depressed, and her agoraphobia was worsening. She needed to see a psychiatrist for a review of her medication.

Associate Professor Kaplan prepared a supplementary report on 7 August 2009. He stated that Ms Hybinett was ambivalent about returning to work at the Retirement Village, believing that she tended to “take things wrong”, was overreacting and her employers were probably not as tough on her as she thought at the time. This suggested that her attitude to work at the Retirement Village would probably improve with treatment, but could only be determined later. In her current condition, Ms Hybinett was not able to work.

At the request of Gallagher Bassett, Dr Akkerman examined Ms Hybinett on 11 February 2009. In his report of 12 February 2009, Dr Akkerman noted that Gallagher Bassett provided him with copies of reports from Ms Musico, a factual investigation by Verifacts dated 14 January 2009, and a copy of a report from Dr Davies dated 12 September 2008. He referred to the factual investigation stating that Ms Hybinett had complained about all her children moving away and being lonely in the month leading up to her claim. She never complained about the car accident.

In terms of Ms Hybinett’s family history, Dr Akkerman noted that she had been married for 26 years and has three adult children: a daughter who lives in Sydney, another daughter who lives in Nowra and a son who lives in the Blue Mountains. She also has four grandchildren, two of whom live in Nowra and two of whom live in the Blue Mountains.

In respect of the car accident, Dr Akkerman took the following history:

“The main incident happened on 12 February 2008. She was walking. A car crashed through the glass. An elderly man who was 95 years old was driving.
Physically she did not get hurt. She said she started screaming.”

Dr Akkerman recorded “nil” under past psychiatric history. He also recorded that Ms Hybinett’s childhood was happy and that she enjoyed school. When asked about other stressors, Ms Hybinett said “there was sort of nothing”. When asked to clarify, she said “just normal things”. She did not mention her family moving away or being lonely.

Her mental status examination revealed her to be mildly depressed. Her concentration was down, as was her short term memory. She was somewhat irritable. She was not tearful.

Dr Akkerman did not agree with the diagnosis of PTSD and concluded that she suffers from a mild Adjustment Disorder and Anxious and Depressed Mood, which was not related to witnessing the car accident on 12 February 2008 or to stress from her relationship with her manager. He did not believe Ms Hybinett had any pre-existing conditions. He thought her motivation to return to work was low and that there were no restrictions on her ability to work. Her condition was not related to the accident, but related to her “family circumstances”.

Dr Akkerman re-examined Ms Hybinett on 10 September 2009 and prepared a further report on 15 September 2009. On this occasion the doctor had been provided with background information that Ms Hybinett had “a traumatic history from childhood” and had “bouts of anxiety and depression at intervals in her life”. Ms Hybinett expressed concern that at the previous examination she had not been treated nicely and she requested that a family member (her husband) be present at the re-examination.

She remained on Cipramil and was still seeing Ms Musico every three weeks.

Ms Hybinett described her relationship with her husband as now quite strained. She was adamant, however, that there were no other stressors, as she indicated at the first examination. Dr Akkerman confirmed his previous opinion that her condition was not related to her employment. However, contrary to his previous opinion, he stated that she was not fit for her pre-injury work or any other work.

In a supplementary report dated 23 September 2009, Dr Akkerman commented on the clinical notes from Junction Street Family Practice. In particular he referred to the entries on 9 February 2007 and 6 February 2008. In respect of the notes for 6 February 2008, Dr Akkerman wrongly stated that the notes recorded that Ms Hybinett was anxious. In fact the notes record that Ms Hybinett was “not anxious”.

Dr Akkerman concluded that the clinical notes strengthen his opinion that Ms Hybinett’s condition is not work related and that it is related to her personal life. She did not tell him about the threatened assault or the threat to kill her in 2007.

THE ARBITRATOR’S DECISION

After a detailed review of the evidence and submissions, the Arbitrator concluded:

(a)     the statements from Ms Brown and Mr Fleming were accurate, principally because they were consistent with Dr Karim’s notes made on 21 May 2008 (Reasons at [34b]);
(b)     Ms Hybinett’s account of what was discussed with Ms Brown and Mr Fleming on 21 May 2008 was not accurate (as regard to matters in issue) (Reasons at [34c]);
(c)     therefore Dr Akkerman’s diagnosis had not “miscarried because of some reliance upon the Brown and Fleming statements” (Reasons at [34d]);
(d)     though Dr Akkerman replaced the phrase “family circumstances” with “personal circumstances” in his last report, it is clear that he did not regard this as being of consequence (Reasons at [34e]);
(e)     it was not surprising that Dr Akkerman’s finding out about the threatened assault in 2007 would have an effect on the development of his views (Reasons at [34g]);
(f)      Dr Akkerman felt that the general practitioners’ notes strengthened his opinion that Ms Hybinett’s condition was not work related. It is therefore clear that the doctor, being the only expert who read the notes, was influenced by them (Reasons at [34h]);
(g)     it was not incumbent upon Dr Akkerman to probe Ms Hybinett’s views about the statements from Ms Brown and Mr Fleming (Reasons at [34i]);
(h)     any defects in Dr Akkerman’s report only became relevant if Ms Hybinett could raise a prima facie case as to causation (Reasons at [34n]);
(i)      Dr Karim’s views were not persuasive because of his earlier view of the need for a Mental Health Plan and because he changed his view having regard to a history that, on the balance of probabilities, was not provided to him initially and in circumstances where there are doubts as to Ms Hybinett’s credit. The Arbitrator found Dr Karim’s note of 15 July 2008 persuasive (Reasons at [34o]);
(j)      he had difficulty with Ms Musico’s evidence because she did not say that employment was a substantial contributing factor to Ms Hybinett’s psychological problems. Ms Musico appeared to specifically avoid attributing causation (Reasons at [37]);
(k)     the weight to be attached to Ms Musico’s report is reduced having regard to the fact that her diagnosis is quite different to that reached by Drs Kaplan and Akkerman (Reasons at [38]);
(l)      Dr Davies took no history of the suggested death threat, the relationship problems, or the previous prescription of Zoloft (Reasons at [39]);
(m)   Dr Kaplan relied on an inaccurate history that Ms Hybinett had no difficulties in childhood (Reasons at [41]);
(n)     Dr Kaplan did not refer to Ms Musico’s notes, the “death threat” or the relevant particulars of Ms Hybinett’s earlier life (Reasons at [42]);
(o)     Dr Akkerman had all of the relevant facts before him, including the notes from Junction Street Family Practice and from Ms Musico about the “death threat”, and about Ms Hybinett’s earlier life (Reasons at [48]);
(p)     Dr Kaplan made no reference to the notes from Junction Street Family Practice or to having seen any of Ms Musico’s notes, but did refer to Ms Hybinett having had hypnosis some years ago to give up smoking (Reasons at [49]);
(q)     not being possessed of all the relevant facts, Dr Kaplan was at a disadvantage in establishing, in accordance with Makita (Australia)Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’), that the “facts on which the opinion is based form a proper foundation for it” (Reasons at [50]);
(r)      where only Dr Akkerman had a full history his opinion is, on the balance of probabilities, more likely to be correct (Reasons at [52]);
(s)     even if he were to reject Dr Akkerman’s opinion, the onus remained with Ms Hybinett. Dr Karim’s apparent change of view was not persuasive, particularly in light of his references to Ms Hybinett having been harassed and having been “depressed most of the time” (Reasons at [53]);
(t)      Ms Musico is not supportive of the car accident as having been a substantial contributing factor to the psychological condition (Reasons at [54]);
(u)     there were differences in the histories taken by Dr Davies and Dr Kaplan and they are sufficiently inaccurate to deny those doctors an adequate opportunity to properly assess causation (Reasons at [55]);
(v)     it is clear that Ms Hybinett now suffers from a psychiatric disorder. What remains to be decided is when Ms Hybinett first started to suffer from a psychiatric disorder and whether either the car crash or the nature and conditions of her employment overall were a substantial contributing factor to that disorder (Reasons at [58]);
(w)    Dr Karim’s clinical notes are persuasive of Ms Hybinett having psychological problems before the car accident and before the commencement of the nature and conditions claim (Reasons at [59]);
(x)     only Dr Akkerman was aware of the relevant history and accordingly it was his diagnosis that was to be preferred (Reasons at [60]), and
(y)     even if Dr Akkerman’s evidence was not to be preferred there are clear issues, given their incorrect histories, as to whether the diagnoses of Dr Kaplan and Dr Davies are of sufficient weight to carry the onus for Ms Hybinett (Reasons at [61]).

SUBMISSIONS

It is submitted on behalf of Ms Hybinett that:

(a)     the lay evidence all agrees that Ms Hybinett’s behaviour and demeanour changed significantly since the motor vehicle accident;
(b)     whilst the notes from the Junction Street Family Practice refer to depressed mood on 9 February 2007, there is no reference to such a condition at any of the next ten consultations and the script for Zoloft does not appear to have been renewed. Therefore, whatever Ms Hybinett’s condition was in February 2007, it appears to have resolved fairly rapidly;
(c)     though Dr Karim took a history that Ms Hybinett experienced a depressed mood, among other things, on 6 February 2008, he specifically noticed that she was not anxious, had no financial problems, no recent bereavement, no irrational fears, no panic attacks, no delusions, no auditory hallucinations, no visual hallucinations, no suicidal thoughts, no suicide attempts and no substance abuse;
(d)     when Dr Karim saw Ms Hybinett on 21 May 2008, she was teary and anxious and had had a nervous breakdown at work that day. He recorded stress at work as being relevant and prescribed Effexor. He recorded that her depression was worse on 11 June 2008 and that she was having difficulty coping at work;
(e)     on 15 July 2008, Dr Karim recorded that there had been recurrent panic attacks and he provided a WorkCover medical certificate certifying Ms Hybinett unfit for work because of PTSD as a result of the car accident;
(f)      Dr Qureshi accepts that the car accident caused Ms Hybinett’s current problems;
(g)     Ms Musico identified two stressors: the car accident and work issues;

(h)     Dr Davies recorded that Ms Hybinett had coped for a time after the car accident, but had been generally nervous, was having nightmares and would become upset when a car “revved up” in the street. She also developed a habit of rolling her hands since the car accident. He considered her condition to be due to a combination of the car accident and subsequent difficulties experienced at work;
(i)      Associate Professor Kaplan also considered that Ms Hybinett’s problems were the result of the car accident and subsequent problems at work;
(j)      it was wrongly suggested at the Arbitration that Dr Karim had changed his view on causation. Dr Karim expressed no view on causation until he completed his WorkCover certificate on 15 July 2008;
(k)     the note on 6 February 2008 merely refers to mild depressive symptoms that were, at least partially, attributable to stressors at work. There were no anxiety symptoms. The records and the lay evidence disclose that there was a development of significant anxiety symptoms following the car accident and the subsequent events at work. Both Dr Davies and Associate Professor Kaplan referred to the development of those anxiety symptoms. Their diagnoses could not have been made on the basis of Ms Hybinett’s presentation to Dr Karim on 6 February 2008;
(l)      the evidence points overwhelmingly to a connection between the car accident and the subsequent incidents at work and the psychological injury;
(m)   Dr Akkerman took no history of other stressors, but concluded that the injury was not related to the accident but was related to Ms Hybinett’s family circumstances. He did not identify those family circumstances. Nor did he explain why there was no connection between the injury and work when there was a close temporal relationship between the development of the psychological condition and the car accident and the subsequent work stressors;

(n) Ms Hybinett denies she has ever had a problem with her children living away from Nowra. In February or March 2008, Ms Lenihan told her that she was planning to return to live in the Nowra area. It is clear that Ms Hybinett remained close to Ms Lenihan as she spoke with her on the day of the accident. The clinical notes from the Junction Street Family Practice and Ms Musico do not reveal separation from Ms Hybinett’s children as a feature of her complaints. In particular, it is not mentioned in the notes of 21 May 2008, and

(o) Dr Akkerman wrongly stated that the notes from the Junction Street Family Practice referred to Ms Hybinett being anxious on 6 February 2008 when in fact the notes state the opposite. After referring to the clinical notes of 6 February 2008, Dr Akkerman also wrongly noted that Ms Hybinett was “still on Zoloft”. Dr Akkerman’s conclusion that the notes “strengthen” his opinion that the condition is not work related is surprising as the only entry that is “purely about causation” refers to “stress at work”.

It is submitted on behalf of the Trust that:

(a)     Ms Hybinett presented a case that prior to the accident she had been free of any psychological illness, whereas after the accident, as a result of it, she was ill. The contemporary records demonstrate that Ms Hybinett’s evidence as to her pre-accident health is false. Only six days prior to the accident, Ms Hybinett was prescribed Zoloft (an anti-depressant) and was referred to Ms Pfeiffer in relation to a Mental Health Plan. Ms Hybinett had also been prescribed Zoloft in February 2007 because of a depressed mood, difficulty concentrating and difficulty sleeping on and off;
(b)     it is not true, as Ms Hybinett claims, that she told Dr Karim about the problems she was having with her nerves caused by the accident within a day or two of it. Though she did see Dr Karim shortly after the accident, she discussed a shoulder problem but made no mention of the accident;
(c)     Ms Hybinett made no mention of the accident when she saw Dr Karim on 21 May 2008. Her failure to do so is consistent with Mr Fleming’s evidence of his conversation with her on that day and is inconsistent with Ms Hybinett’s assertion that she said “ever since that car accident everything has gone wrong”;
(d)     Dr Karim’s recommended treatment on 21 May 2008 is very similar to the recommended action on 6 February 2008, though the referral is to Ms Musico rather than to Ms Pfeiffer;
(e)     Ms Hybinett’s assertion that she told Dr Karim of the car accident and its effect on her “can be nothing but a fabrication”. Dr Karim’s notes make no mention of the car accident until 15 July 2008;
(f)      Mr Fleming’s statement is consistent with the contemporaneous records from Dr Karim dated 21 May 2008. Having been provided with a copy of Mr Fleming’s statement, Ms Hybinett did not challenge his record of her statement on 21 May 2008 concerning the lack of significance, in her mind, of the car accident;

(g)     for Ms Hybinett to succeed, her accounts to the medical practitioners and to the Commission must be accepted as truthful. Those accounts are not truthful;
(h)     the opinion evidence from Dr Davies and Associate Professor Dr Kaplan only assists Ms Hybinett if the factual basis for those opinions is sound. Reliance is placed on Makita, Hevi-lift (PNG) Limited v Etherington [2005] NSWCA 42, (2005) 2 DDCR 271 and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, (2007) 4 DDCR 421, and
(i)      the Arbitrator’s decision is correct.

DISCUSSION AND FINDINGS

Whilst it is not necessary to establish error before a Presidential member can intervene, error, or lack of it, will or may be relevant to the task though it does not define it (Allsop P and Hoeben J in Sapinav Coles Myer Limited [2009] NSWCA 71 at [57] (‘Sapina’)). The decision under appeal is not to be ignored (Sapina at [57]) but the task of the Presidential member is to “decide whether the original decision is wrong or…what is the true and correct view” (State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [30] (‘Chemler’)).

Whilst there is some merit in the Trust’s submissions, I do not accept that the Arbitrator’s conclusion is the true and correct view. The Trust’s position is essentially that Ms Hybinett’s evidence cannot be accepted in several key respects and, therefore, her medical case cannot be accepted. I do not agree. Though it is true that Ms Hybinett’s evidence is inaccurate on several issues, I do not accept that her case is so undermined by those inaccuracies that it must fail.

First, her assertion that she had not suffered from a psychiatric or psychological condition before the car accident is open to doubt. However, the situation is not as clear-cut as the Arbitrator assumed or the Trust argued. Ms Hybinett attended on Dr Karim in February 2007 complaining of feeling depressed most of the time and Dr Karim prescribed Zoloft. Dr Karim made no formal diagnosis and did not refer Ms Hybinett for further assessment. Ms Hybinett did not return for review in seven days, as Dr Karim had asked her to do, because she “felt a lot better” (T14.50). Her next attendance on Dr Karim was for a headache on 30 April 2007. Ms Hybinett continued her usual work at the Retirement Village without apparent difficulty. This suggests that the problems at that time were not serious and/or were short lived and I accept her evidence that she had no problems with depressed mood, concentration, or sleeping for the rest of 2007 (T14.52-56). In its proper context, the reference to depressed mood on 9 February 2007 is not decisive.

There is no further reference to psychological symptoms until 6 February 2008 when Dr Karim recorded Ms Hybinett to have, among other symptoms, a depressed mood. This entry suggests two possible causes for her condition: “stress at work” and a “relationship problem”. The note does not elaborate on either. The first does not assist the Trust as Ms Hybinett’s only work was at the Retirement Village. If this note were the only evidence tendered, it would provide a strong basis for concluding that employment was a substantial contributing factor to the worker’s condition at that time because the link with employment was clearly “real and of substance” (Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324). The second is too vague to be of any assistance in determining the cause of Ms Hybinett’s condition. There is no other evidence of a relationship problem at that time. Of more importance is that the entry does not support Dr Akkerman’s conclusion that Ms Hybinett’s psychological condition resulted from “family circumstances”. Ms Hybinett did not pursue the referral to Ms Pfeiffer, which suggests that her problem was not severe at that time.

It follows that the Arbitrator placed undue weight on Ms Hybinett’s attendance on Dr Karim on 9 February 2007 and failed to appreciate the significance of the reference to stress at work at the attendance on 6 February 2008.

Second, I agree that it is unlikely that Ms Hybinett complained to Dr Karim about the accident within a few days, as she claims. The doctor’s notes for 13 February 2008, the day after the car accident, make a detailed reference to shoulder pain and to lifting at work, but make no mention of the car accident. Ms Hybinett attended on Dr Karim on several occasions before mentioning the accident to him on 15 July 2008. Though it is possible that she mentioned the car accident to him before 15 July 2008 and that the doctor failed to record it, it is not possible to determine that issue in the absence of a report from Dr Karim. In circumstances where Ms Hybinett claims to have mentioned the car accident to Dr Karim within a few days of it occurring, the unexplained lack of a reference to it in Dr Karim’s notes is significant and clearly undermines the worker’s credit. However, it does not necessarily destroy her claim but requires that the claim be closely analysed and the evidence carefully considered for consistency and corroboration.

It is significant that the history recorded by Dr Karim on 15 July 2008 (recurrent panic attacks over the previous few months, recurrent bad dreams, and freezing after hearing car noises) is generally consistent with Ms Hybinett’s evidence before the Commission and with the evidence from Ms Lenihan and Ms Brown that Ms Hybinett’s behaviour changed after the car accident. It is also consistent with Ms Larritt’s evidence that, after having had time off after the accident, Ms Hybinett complained of having nightmares and that she could not walk through the pathway. In view of this corroborative evidence I accept that, notwithstanding the lack of reference to the car accident in Dr Karim’s notes until July 2008, Ms Hybinett found the accident distressing and that her behaviour changed after it.

The Trust also places great weight on the absence of a reference to the car accident in Dr Karim’s note of 21 May 2008. I do not believe that that omission is determinative. The two potential causes of Ms Hybinett’s attendance were the same as appeared in the entry for 6 February 2008: “stress at work” and a “relationship problem”. Again, Dr Karim’s notes do not elaborate on either. Unlike the previous entries, however, Dr Karim referred to Ms Hybinett being anxious, though he expressly noted “no panic attacks”. Dr Karim again referred Ms Hybinett to a psychologist, Ms Musico, who Ms Hybinett saw on 30 June 2008.

Ms Musico’s notes from 30 June 2008 are significant. They refer to Ms Hybinett’s past history of agoraphobia at age 35, having been assaulted before the car accident, and to “childhood trauma - neglected”. They include a detailed “family tree” which refers to Mr Hybinett as being “supportive”. They also refer to the car accident and “work issues”, namely “no breaks”. Other than a reference to “have had a lot of problems in past – children” (emphasis added), the notes make no mention of Ms Hybinett suffering distress as a result of any “family circumstances”, or as a result of her family having left the area. They make no mention of any “relationship problem” but do refer to Ms Hybinett having tried to “assert herself for work issues – discussion with supervisor (Renee [sic] Brown)”. It is possible, though far from certain, that this is the relationship problem that Dr Karim noted.

These notes must be read with Ms Musico’s report of 13 August 2008 to Gallagher Bassett. Notwithstanding the history of past problems, Ms Musico identified only two stressors as having caused Ms Hybinett’s negative emotional state: the car accident and work issues. Unlike Dr Karim, Ms Musico set out the work issues to be essentially those referred to by Ms Hybinett in her evidence. In respect of the car accident, Ms Musico noted that Ms Hybinett described getting a shock and thinking that she was going to be killed. Both reactions are reasonable and plausible, and consistent with the uncontested description of the accident. Though Ms Musico did not use the words “substantial contributing factor” when referring to causation, her conclusion leaves no doubt that she considered that Ms Hybinett’s emotional state had resulted from the car accident and work stress. Thus, on her evidence, employment was not only a substantial cause but was the cause.

Consistent with her evidence, Ms Hybinett complained to Ms Musico of symptoms of hyper-vigilance, especially to car noises (including startle responses), sleep disturbance and hand wringing. More important, Ms Hybinett reported a stable marital situation and close family relationships with her adult children. Given the importance Dr Akkerman placed on Ms Hybinett’s “family circumstances” and given Ms Hybinett’s consistent denial that that was a concern to her, Ms Musico’s failure to refer to any adverse “family circumstances” as being causative of the psychological problems is particularly noteworthy, especially when, unlike Dr Akkerman, she made a specific note about Ms Hybinett’s relationship with her children. I also note that Ms Musico recorded on 17 December 2008 that Ms Lenihan had moved back to Nowra and, though Ms Lenihan was very close to her mother, Ms Hybinett’s symptoms continued. This further diminishes the weight to be attached to the “family circumstances” argument.

The importance of Ms Musico’s history is not diminished, as the Arbitrator thought, because her diagnosis is at odds with the diagnosis reached by the treating and qualified psychiatrists. The relevance of the history does not, in the circumstances of this case, depend upon an acceptance of the diagnosis of PTSD. Ms Musico’s report provides a clear and plausible history that is consistent with Ms Hybinett’s complaints of significant symptoms as a result of the car accident and work issues. It strongly corroborates Ms Hybinett’s claim that she experienced emotional problems in 2008 as a result of the car accident and work issues.

Third, the Trust urges the Commission to prefer the evidence of Mr Fleming and Ms Brown to Ms Hybinett’s evidence as to the content of the conversation on 21 May 2008. Even if I was to accept that submission, and it has considerable force, I do not accept it is determinative. Ms Brown concedes that, though Ms Hybinett was an anxious person, she had always been a good and caring worker. She also concedes that, over time up to May 2008, she had noticed that Ms Hybinett had not been herself. This prompted her to speak to Ms Hybinett. Even if Ms Hybinett referred to everyone having left her, as Mr Fleming and Ms Brown allege, that merely identifies one aspect of the factual background that must be considered in determining causation. The weight to be attached to it must be considered in the light of the additional evidence from Ms Lenihan, Ms Musico, Ms Larritt and the medical experts.

Given that none of the medical experts took a history of relevant “family circumstances” I do not believe the content of the conversation on 21 May 2008 to be decisive. Ms Hybinett was clearly very distressed at the meeting on 21 May 2008 and I believe a more accurate history of her problems is found in Ms Musico’s detailed notes and report. Even if Ms Hybinett said to Mr Fleming that she did not consider the car accident to have contributed to her situation, and that she had suffered depression for some years, I do not regard that as conclusive. Ms Hybinett is not a medical expert and her statement must be considered in the light of all the evidence.

Fourth, the Arbitrator and the Trust place great reliance on Dr Akkerman’s evidence. His opinion appears to be based on a factual investigation that is not in evidence, rather than on the history he took from Ms Hybinett. It is most unsatisfactory that the Trust tendered Dr Akkerman’s report without the factual investigation. That kind of selective tendering should not occur. Assuming, in favour of the Trust, that the thrust of the factual investigation was as set out in the statements from Mr Fleming and Ms Brown, I do not regard their evidence as conclusive or determinative.

Dr Akkerman took a very limited history from Ms Hybinett. In particular, he took no history of her being upset about her family having moved away, merely noting, “She did not mention the family moving away or her being lonely”. Other than noting that Ms Hybinett got on well with her husband and her family, which is consistent with Ms Musico’s history and Ms Hybinett’s evidence, Dr Akkerman does not appear to have asked her about her reaction to her children moving away. This seriously weakens the weight to be attached to his conclusion.

Dr Akkerman took a most cursory history of the car accident, merely noting that a car crashed through the glass and Ms Hybinett was not physically hurt but she started screaming. He noted that she started getting panic attacks around April 2008. It is difficult to determine if Dr Akkerman asked Ms Hybinett about her reaction to the car accident. If he did, he did not record her response. He took no history of Ms Hybinett’s complaints of nightmares, avoidance of the accident scene, or of her sensitivity to noise and cars. In respect of work issues, he merely noted that she had problems with Ms Brown, her boss. That history provided no basis for him to properly deal with the allegation that work stressors had contributed to Ms Hybinett’s condition. He took no history about Ms Hybinett’s family circumstances.

In his second report, Dr Akkerman referred to Ms Musico’s notes, Associate Professor Kaplan’s reports, and that Ms Hybinett had had bouts of anxiety and depression at intervals in her life. Dr Akkerman’s history on this occasion was even briefer than at his first examination. He did, however, record her complaint of nightmares, being upset by hearing tyres screech, being anxious in the car, and that she had one nightmare of the accident “which is stereotyped”. Ms Hybinett repeated that there were no other stressors. Contrary to his opinion in his first report, and without any explanation, Dr Akkerman declared Ms Hybinett to be unfit for work. He repeated, without explanation, that her condition was related to her family circumstances, but added that she was not forthcoming about it.

Dr Akkerman appears not to have properly considered Ms Musico’s notes or reports, or Ms Hybinett’s history of the effect the car accident had on her, and based his conclusion solely on the “family circumstances” theory. This theory, presumably based on the evidence from Mr Fleming and Ms Brown as set out in the factual investigation, is not supported by Ms Musico’s notes, Ms Hybinett’s evidence, Dr Karim’s notes, or Ms Lenihan’s evidence. Dr Akkerman’s approach and conclusion lacks probative value and is not persuasive. It amounts to a bare conclusion that is inadequately explained.

In his third report, Dr Akkerman changed his opinion on causation stating that Ms Hybinett’s condition was related to her “personal circumstances”, though he did not properly identify or explain those circumstances or how they caused her condition in 2008. He wrongly recorded that Dr Karim referred to Ms Hybinett being anxious on 6 February 2008 when Dr Karim noted the opposite. Without proper explanation, Dr Akkerman stated that the general practitioners’ notes strengthened his opinion that Ms Hybinett’s condition was not work related but was related to her personal life. He made no attempt to identify which aspect of her personal life caused her condition. He did not deal with the reference to “stress at work” in Dr Karim’s note of 6 February 2008. Notwithstanding that he made a brief reference to Ms Hybinett having not told him about the threatened assault and threat to kill her, in the absence of a proper explanation or analysis of the causation issue, I find his report unhelpful and unpersuasive.

It follows that the Arbitrator’s conclusion that Dr Akkerman’s opinion was “more likely to be correct” (Reasons at [52]) because he had a “full and accurate history” failed to consider if Dr Akkerman’s opinion was supported by the evidence overall and if Dr Akkerman had properly explained his conclusion.

Fifth, the Arbitrator erred in concluding that Dr Karim’s views were not persuasive because he had changed his view. Dr Karim only expressed one view. That was the view in the WorkCover certificate of 15 July 2008 that Ms Hybinett suffered from PTSD due to the car accident. In the absence of a report from Dr Karim explaining his conclusion, I do not place great weight on that certificate.

Sixth, the Trust criticises the evidence from Dr Davies and Associate Professor Kaplan because they did not take a history of Ms Hybinett’s attendances on Dr Karim prior to 12 February 2008, or of her suffering from a depressed mood prior to that date. Whilst it is correct that they did not take a history of Ms Hybinett having had emotional problems before the car accident (Associate Professor Kaplan recording that Ms Hybinett denied previous episodes of anxiety or depression aside from hypnosis some years ago to give up smoking, and, wrongly, that she saw her doctor for reassurance the next day), the relevance of those issues must be seen in the context of the overall history.

For the reasons noted at [117] and [118] above, I do not consider the failure by Dr Davies and Associate Professor Kaplan to take a history of the earlier problems to be fatal to an acceptance of their conclusions. The problems in 2007 were clearly short lived. At least one of the two problems noted by Dr Karim on 6 February 2008 was stress at work. The other (a relationship problem) has never been properly explained and its significance is simply not known. Dr Karim made no formal diagnosis on 6 February 2008 and Ms Hybinett did not follow up the referral to Ms Pfeiffer. Though Ms Brown refers to Ms Hybinett having had 23 sick days since January 2008, it is not known how many days she had off before 12 February 2008, or why.

It may well be that there were other, non-work, factors at play when Ms Hybinett saw Dr Karim on 6 February 2008, and throughout 2008, but that does not destroy her case. Consistent with Ms Hybinett’s evidence (corroborated by Ms Lenihan and Ms Brown) I conclude that, save for the attendance on Dr Karim on 6 February 2008, which was partly due to stress at work in any event, Ms Hybinett functioned well until the car accident on 12 February 2008 and the subsequent work events (see [26] above) that Ms Hybinett found distressing. Even accepting Ms Brown’s evidence that Ms Hybinett was an anxious person before the car accident that merely demonstrates, at most, she was may have been more vulnerable than her co-worker/s. But that does not assist the Trust as employers take their workers as they find them (per Spigelman CJ Chemler at [40]).

In all the circumstances, I am comfortably satisfied that the detailed histories of the car accident and the various stressors at work in 2008 recorded by Dr Davies and Associate Professor Kaplan provide a “fair climate” (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844) for the acceptance of their virtually identical conclusions. Dr Davies concluded that Ms Hybinett developed symptoms of anxiety and depression following the car accident compounded by a series of incidents at work so that her symptoms increased to a level where she could no longer cope with work. Associate Professor Kaplan concluded that Ms Hybinett has an Adjustment Disorder with Depression and Anxiety as a result of the car accident and subsequent problems in the workplace. I accept these conclusions in preference to Dr Akkerman’s evidence.

Giving full weight to Ms Hybinett’s pre-accident emotional problems, and having regard to the totality of the evidence and the full history of the matter, I am comfortably satisfied that the car accident and the various stressors Ms Hybinett described at work in 2008 (see [26] above) were a substantial contributing factor to her injury. That there may have been other factors at play, such as an unidentified and unexplained relationship problem, does not detract from this conclusion. Employment only has to be a substantial contributing factor to the injury not the substantial contributing factor.

It follows that I do not accept Ms Hybinett’s assertion (at [33] above) that the various stressful events at work in 2008 did not cause her problems. Based on the medical and lay evidence, I accept that those events happened at work and that they were a significant factor in the development of her injury. Though Ms Hybinett’s perception of some of those events may not have been completely accurate, a “perception of real events”, which are not “external events”, can satisfy the test of injury “arising out of or in the course of employment” (Spigelman CJ in Chemler at [54]). I am satisfied that it satisfies the test in this case.

CONCLUSION

Having conducted a review on the merits I have determined the true and correct position to be that Ms Hybinett suffered a psychological injury, namely an Adjustment Disorder with Anxiety and Depression, as a result of the car accident on 12 February 2008 and the various stressors to which she was exposed in the course of her employment with the Trust in 2008. I am satisfied that the effect of that injury is continuing.

Neither party has made submissions on incapacity. Therefore, as requested by Ms Hybinett, that question must be remitted to a different Arbitrator for determination.

DECISION

The Arbitrator’s determination of 21 October 2009 is revoked and the matter is remitted to a different Arbitrator for determination of the applicant worker’s entitlement to weekly compensation and the making of appropriate consequential orders consistent with the reasons in this decision.

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal as agreed or assessed.

Bill Roche
Deputy President

29 January 2010

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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Citations

Hybinett v Illawarra Retirement Trust [2010] NSWWCCPD 11

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