Lancaster v Department of Education and Training
[2007] NSWWCCPD 46
•13 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Lancaster v Department of Education and Training [2007] NSWWCCPD 46
APPELLANT: Robert Lancaster
RESPONDENT: Department of Education and Training
INSURER:NSW Treasury Managed Fund
FILE NUMBER: WCC21812-05
DATE OF ARBITRATOR’S DECISION: 26 April 2006
DATE OF APPEAL DECISION: 13 February 2007
SUBJECT MATTER OF DECISION: Psychological injury; section 4 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION: Appellant: Higgins & Higgins, Lawyers
Respondent: Leslie Hargrave, Lawyers
ORDERS MADE ON APPEAL: (1) The decision of the Arbitrator dated 26 April 2006 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons together with the other outstanding claims by the worker.
(2)The respondent/employer is to pay the costs of the appellant/worker.
BACKGROUND TO THE APPEAL
Robert Lancaster (‘the worker’) was employed by the Department of Education and Training (‘the employer’) as an E.S.L. (English as a Second Language) teacher at Hassall Grove Public School.
On the afternoon of 21 December 2004, the last day of the school term, the worker was asked to attend the office of the Principal, Mr Ian Chambers. The reason for this was to tell the worker of complaints which had been made about his behaviour by two female staff members at the school, Ms Bronwen Heap and Ms Raquel Gonzalez.
The worker was given a letter from the Principal which referred to the use of inappropriate language by the worker to these ladies. The worker the following day replied in writing seeking details of the complaints against him and setting out his relationship with the two identified staff members. This letter was not, it appears, received by the Principal until the first day of the school term 2005. The worker complained of not being told details of the complaints made against him and sought that the situation be addressed promptly upon his return to work in 2005. He said that over the holiday period he was worried constantly about the stressful situation and was upset, anxious, depressed and his sleep was disturbed, allegedly sleeping a maximum of only 2 ½ hours per night.
When the worker returned to the school at the beginning of Term 1 in 2005, he spoke to the Principal and asked that the situation be resolved face-to-face with the complainant, Ms Gonzalez. Ms Heap was no longer at the school. He also sought specific notification as to what it was he allegedly said and did and he requested a right of reply. He and Ms Gonzalez continued to work at the school that year. There was no response to his request until three weeks later when a meeting was organised between the worker and Ms Leah Pollett, the District Welfare Officer. At this stage the worker says he almost collapsed at school after feeling dizzy and faint from continual lack of sleep. He saw his local medical practitioner, Dr Nijher, on either 9 March 2005 or 11 March 2005. It is not clear which. He was certified unfit from 9 to 11 March inclusive with “anxiety and stress and insomnia”. There is a WorkCover Medical Certificate dated 11 March 2005 which describes the injury as follows: “Unsubstantiated allegations from a staff member.”
Dr Nijher saw the worker on a number of later occasions and gave him further certificates of unfitness for work.
The worker wrote to Mr Barry Higgins, the School Education Director, Western Sydney Region Mt Druitt, on 14 March 2005 referring to a meeting they had had that afternoon. The worker requested Mr Higgins’ intervention in the resolution of allegations made against him by Ms Gonzalez. At that stage he said he had not been told verbally or in writing what the allegations were. He said that, as part of the mediation process, he understood he would be provided with this information and would promptly and formally address the issue face-to-face with the lady concerned.
On 18 March 2005 Mr Higgins wrote to the worker enclosing a letter of complaint against him by Ms Gonzalez dated 14 March 2005. The worker was requested to provide a written response within ten working days. I will deal with the particulars provided by Ms Gonzalez and the reply of the worker later in this determination.
A workers compensation claim form was, it appears, lodged by the worker with the employer’s insurer at some stage, however, it is not in evidence. The insurer wrote to the worker on 1 April 2005 enclosing a copy of an Injury Management Plan.
The worker was referred to Catalyst Rehabilitation Australia Pty Limited (‘Catalyst’) by Ms Pollett on 4 April 2005 and the worker was interviewed at the Penrith office of Catalyst on 8 April 2005. Mediation was due to be scheduled in order to attempt to resolve the situation however there was a delay as Ms Pollett who would be coordinating the mediation was on leave until 22 April 2005. The person at Catalyst who had the conduct of the matter was Ms Tanina Weeden who is described as a rehabilitation consultant with the qualification of B.Sc. (Psych.).There was to have been a mediation on 4 May 2005, however, Ms Gonzalez allegedly indicated that she refused to attend such mediation. There was a meeting however between Mr Higgins, Ms Pollett and the worker when a compassionate transfer to another school was discussed and subsequently offered. The worker returned to work at the new school on 21 May 2005 and he said his sleep patterns were gradually returning to normal. [I have taken these details from an unsigned, undated statement of the worker which is attached to the Application to Resolve a Dispute lodged in these proceedings.]
The insurer instructed a body called Centre for Corporate Health to advise it in relation to the claim and a consultant psychologist, Ms Janet Koussa, accordingly interviewed the worker as well as Mr Chambers, Ms Masters (a teacher at the school who had agreed to act as the worker’s support person) and Ms Pollett. She also spoke to the worker’s general practitioner, Dr Nijher. The psychologist reported to the insurer on 2 May 2005 and I will deal with that report in some detail later. Following this report the insurer denied liability by letter of 4 May 2005. The reason for declinature was stated to be that:
“Current medical evidence indicates that you have not been diagnosed with a psychological condition. Your claim has been declined pursuant to Section 4 of the Workers Compensation Act 1987.
Our decision is based on the opinion provided by Janet Koussa (Consultant Psychologist) from the Centre for Corporate Health dated 02/05/2005. A copy of this report can be provided to you if requested.”
Accordingly the solicitors for the worker lodged an Application to Resolve a Dispute with the Workers Compensation Commission (‘the Commission’) on 23 December 2005. This sought weekly payments of compensation from 9 March 2005 to 21 May 2005. There was a teleconference in relation to those proceedings on 13 March 2006 and there was a conciliation/arbitration hearing before an arbitrator on 18 April 2006 at the conclusion of which the Arbitrator found in favour of the employer. He gave ex tempore reasons on that occasion. A Certificate of Determination was later issued. It is from that Determination that the worker now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 April 2006 records the Arbitrator’s orders as follows:
“1.An award for the Respondent with respect to the Applicant’s claim for weekly payments of compensation.
2.An award for the Respondent with respect to the Applicant’s claim for medical expenses under section 60 pursuant to the Workers Compensation Act 1987.
3.Nor order as to costs.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
A telephone conference was arranged for 16 November 2006 in order that the parties might make further submissions. While the worker’s solicitor was prepared to do so the employer’s solicitor indicated that he was not and wished to make further written submissions. In the circumstances I gave both parties leave to make further submissions in writing. These have now been received and considered.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount at issue on the appeal exceeds $5,000.00 being weekly compensation in respect of the period from 9 March 2005 to 21 May 2005 at $1,333.00 per week. That entire amount is at issue on the appeal. Section 352(2) of the 1998 Act is thus satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Accordingly, leave to appeal is granted.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”The solicitors for the worker on 6 October 2006 sought leave to admit reports of a psychologist, Mr C.R. Camacho, dated 26 June 2006 and 31 July 2006. The reason given in support of the Application to Admit the Fresh Evidence is: “Not received before the filing of the appeal”. It is clear from the earlier of those reports that the psychologist was asked on 8 June 2006 to make a psychological and whole person assessment according to the AMA Guides to Permanent Assessment 5th Edition and the WorkCover Guidelines 2002. The reason given in support of the admission of these reports is inadequate. Obviously the report could not have been available to be put into evidence before the Arbitrator since it had not at that stage been obtained.
The purpose of seeking to have Mr Camacho’s reports admitted is to meet a deficiency in the evidence which was pointed out by the Arbitrator, that is, the absence of a report from a psychologist supportive of the worker’s claim. Mr Camacho’s reports deal with his assessment of the worker at the time he saw him, namely 13 June 2006.
The question of fresh evidence on appeal was discussed by Deputy President Fleming in Christopher Michael McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble II” [2003] NSWWCCPD 22 (‘McMahon) at [11-12]:
“11.Principles relevant to the exercise of the discretion to admit new evidence in relation to proceedings before the Commission were discussed in the matters of Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7 and Shipman Pty Ltd v Matters [2003] NSWWCCPD 19. Factors, weighing in favour the exercise of discretion to admit fresh evidence in an appeal against the decision of an arbitrator in the Commission include that:
(i) if the request if refused a substantial injustice will result to the party who seeks to have the evidence admitted, Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235,
(ii) the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings, Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235; Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80, and
(iii) the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case; Greater Wollongong City Council v Cowan (1955) 93 CLR 435, Warr v Santos [1973] 1 NSWLR 432, Harrison v Schipp (2002) 54 NSWLR 738; Atkins v National Australia Bank (1994) 34 NSWLR 155.
12.Factors weighing against the exercise of discretion to admit fresh evidence in the appeal include:
(iv) the interest in the finality of litigation and the importance of the ability of a successful party to rely on the outcome of the proceedings, Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287,
(v) the prejudice ,if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal, and
(vi) the intention of the legislative scheme in relation to the nature of the proceedings.”
The evidence now sought to be relied on or something similar could have been obtained prior to the hearing before the Arbitrator. It should be emphasised that the appeal provided for in section 352 of the 1998 Act is by way of review. Such review is by way of re-hearing but is not a hearing de novo. In order to succeed on a review application it is necessary to establish that the Arbitrator erred in a matter of fact, law or discretion. If the reports were now admitted, I would have to consider them as evidence when they were not before the Arbitrator. Nonetheless section 352 (6) envisages that in a proper case such evidence may be received. I consider that the proposed fresh evidence does not assist in relation to establishing that the worker suffered an injury in December 2004 which was the aspect on which the claim failed before the Arbitrator. Rather, the psychologist’s opinion deals with the worker’s condition as it was in June 2006.
Having regard to the principles expressed by Deputy President Fleming in McMahon, I do not consider that leave ought to be granted to admit into evidence the reports of Mr Camacho.
EVIDENCE
I have dealt with the facts in summary form under the heading Background to the Appeal. There were some matters with which I did not deal in detail and I will now do so.
The evidence was extremely limited and it appears that the employer did not put on any evidence at all. The report of the psychologist, Ms Koussa, to which I have earlier referred, was attached to the Application lodged on behalf of the worker. The relevant parts of Ms Koussa’s report with which I have not already dealt are as follows.
The worker told her that in mid-January 2005 he had attempted to contact the Staff Support Officer at Mt Druitt, Ms Leah Pollett, but was informed the office was closed so he then contacted the Staff Support Officer at Penrith, Ms Jenny Martin. She had reportedly told him that he had a right to know the allegations made against him and drew his attention to a booklet entitled ‘Responding to Suggestions, Complaints and Allegations’. His attention was drawn to a section of the booklet which indicated the first step in the process of any complaint resolution was that the two parties speak to each other and try to resolve their issues. This had not happened. The worker indicated that he was distressed by the fact that he had not been told what the allegations were. He had returned to work the first day of Term 1, 2005 expecting further action to be taken by the Principal to resolve the situation but it was not. The worker had asked the Principal to inform him specifically of the allegations but this had not happened. He then made contact with Ms Pollett who said that she would talk to the Principal about the situation. The Principal then told the worker that he had contacted Ms Pollett and arranged for the worker and Ms Gonzalez to see her separately. The worker had a meeting with Ms Pollett on 16 February 2005 with Ms Masters also being present. Ms Pollett indicated that she would approach the Principal in order that the allegation made against him might be disclosed. Nothing seemed to have been done by the Principal in response to this and accordingly the worker approached Mr Barry Higgins, a senior officer of the employer, and a meeting was arranged with him. Following this meeting the worker received a copy of Ms Gonzalez’s letter of allegations to which I have earlier referred. It is convenient to set out in summary the contents of that letter at this stage.
Ms Gonzalez’s account was that there had been unwanted and uninvited comments and behaviour from the worker towards her over the preceding four years. She said that he had made unwelcome suggestive comments and had without invitation touched her. She had not documented these events but could clearly remember some incidents although not the dates of others. At one stage the worker had commented on a particular pair of boots that she was wearing and said they looked like “FM boots” and asked if the worker was “into that sort of thing”. During a Christmas party in late 2001 the worker had worn a pair of alligator skin shoes and proceeded to rub Ms Gonzalez on the leg with the claws on his shoes. On the last day of school 2002 the worker came into her classroom to say goodbye and to give her a Christmas card. He told her he really wanted to give her a hug but thought it inappropriate in front of the children. He went on to say that she knew how he felt about her. In December 2004 she had purchased a new car and the worker took an interest in it and asked on a few occasions if she could take him for test drive around the block. She says she avoided further conversations since she was not comfortable taking him for a drive. In December 2004 on the day of the Year 6 Farewell, the worker had asked if she was attending this and if he could have a dance with her. She replied that she could only dance with Year 6 boys and they do not like holding teachers’ hands. The worker said that he would hold her hand. This was said in a very suggestive manner. At the Farewell function that year the worker wore the same alligator skin shoes which he again used to rub on her leg in a suggestive manner while dancing with her. That night Ms Gonzalez spoke to a female colleague and told her what the worker had done. That person then told Ms Gonzalez that he had also behaved inappropriately towards her. Ms Gonzalez said she then realised she had to do something to stop his unwelcome behaviour. The worker had on a few occasions asked her to go out for drinks after school or in the holidays however she made excuses not to go. She said that she felt the worker often turned innocent conversation into an intrusive or suggestive one. Her request was that the behaviour stop. She wanted the worker to be counselled and made aware that his comments and behaviour towards her and other female staff members was not appreciated and would not be tolerated further. She said she had never encouraged the behaviour and her only error was in putting up with it as long as she had.
Ms Koussa spoke to Ms Masters. She had been contacted by the worker during the Christmas holidays and she said that he was very distressed. She agreed to be his support person at a meeting to be held earlier the next year with Ms Leah Pollett. Ms Masters said she believed that what had caused the worker to go off work was possibly lack of sleep, stress, not knowing what the allegations made against him were and the fact that the Principal had involved the Executive in the situation between the worker and Ms Gonzalez. The time delay she thought was also distressing the worker and the fact that Ms Gonzalez refused to meet him face-to-face to resolve the issues. She said that the worker seemed to become more anxious as the school term in 2005 progressed and occasionally looked tired and found it difficult to focus on tasks.
The Principal was interviewed and said that since Ms Gonzalez had lodged a complaint against the worker other female staff had come forward and discussed his inappropriate comments towards them. They did not want him working with them nor did they feel comfortable being alone with him in their classrooms. The Principal indicated that only the complaint made by Ms Gonzalez could be dealt with at the proposed mediation. He said that Ms Gonzalez and Ms Heath approached him on the second last day of Term 4, 2004 and lodged an informal complaint against the worker. The Principal told them that he would have to inform the worker that there had been complaints made against him and neither of these objected. The following day he and the Assistant Principal, Ms Brenda Meharg, met the worker and informed him of the complaints made and gave him a letter outlining several paragraphs of the Code of Conduct indicating the teachers’ names but not specific details regarding their complaints. He told the worker that because neither teacher had lodged a formal complaint he was not at liberty to provide him with the precise nature of the allegations against him. The Principal said that when the worker approached him on the second day of school in February 2005 to get a formal process underway, he had encouraged the worker to try to approach the matter informally by “just talking about work and no personal issues with Ms Gonzalez and see how it goes”. The worker had however wanted a formal resolution process to be implemented. The Principal said he had informed the Executive of the complaints made about the worker for several reasons, namely to inform the Executive that a resolution process was in place, to abate any gossip and also to ask the Executive to be sensitive and advise the Principal if other staff raised concerns. The Principal said that he had observed that the worker was “very withdrawn” when he returned to work that year.
Ms Pollett was interviewed. Both the worker and the Principal had contacted her about the complaints made about the worker. She thought that the letter from the Principal to the worker was harsh and he had not been given a chance to respond. She thought that instead of the letter the worker should have been told the nature of the allegations and then given 21 days to resolve the issue. This was the process according to departmental policy outlined in the relevant booklet. She had a meeting with the worker and referred him to the Employee Assistance Program. She had requested the intervention of Mr Barry Higgins to obtain a full statement from Ms Gonzalez. Ms Pollett expressed the view that procedural fairness was not being followed in relation to the case and there was a breach of the complaints procedure. Ms Pollett said that she had indicated that she felt uncomfortable being alone with the worker and arranged for Mr Higgins to be present at the next meeting.
Ms Koussa spoke to Dr Nijher. Possibly two or three weeks after the first work-related consultation, the worker had asked Dr Nijher for a workers compensation certificate which he had written. The worker’s main problem, Dr Nijher indicated, was that he was not sleeping and he thought the anxiety which the situation had caused the worker was the main problem. Dr Nijher indicated that he did not prescribe any anti-depressant or any anti-anxiety medication for the worker as he believed his anxiety was mainly temporary.
The psychologist administered a number of tests to the worker as part of a personality assessment inventory (PAI). In summary, these tests suggested there may have been some elements of exaggeration; the worker was concerned about his health; the worker experienced some moderate stress and worry at that time; the worker’s self-confidence may have been affected at that time; the worker had withdrawn from people and activities; the worker’s depression was being experienced in a somatic form, namely changes in energy level, decrease in sleep, decrease in sexual interest and loss of appetite; the worker may then have been sceptical about his interpersonal relationships and the worker acknowledged major difficulties and perceived a need for help.
In the psychologist’s interview with the worker he told her that since December 2004 he been unable to sleep more than 3 hours per night and had difficulty falling asleep. He woke early in the morning thinking about the work situation. He had lost weight since December 2004 but had continued to attend the gym and go swimming as management of his diabetes, although he had little motivation to do so. His predominant mood since December 2004 had been “pissed off, fragile and bewildered”. He indicated that he had stopped socialising and did not attend the Folk Festival as he usually did. He said he did not fell capable of working at that time but if the situation were resolved at school he felt he could return to work.
The psychologist was of opinion, as a result of the PAI and the report from the general practitioner, that the worker’s symptoms were not of adequate frequency and severity to warrant a clinical diagnosis as defined in the Diagnostic and Statistical Manual of Mental Disorders – 4th Edition (‘DSM-IV’). She thought however that the worker was experiencing sub-clinical symptoms of both anxiety and depression at that time.
The psychologist came to the conclusions that:
·The worker had a right to know the specific nature of the allegations made against him and not knowing those would have caused him some distress.
·The worker was not provided with the opportunity to respond specifically to allegations made and this would have reasonably caused him distress.
·There was a significant delay in providing the worker with the opportunity to meet face-to-face with Ms Gonzalez to resolve the issues. Having to continue to work with Ms Gonzalez for four months [this period is obviously incorrect] when the worker knew she had made a complaint about him before being given an opportunity for mediation would be distressing.
·Informing the Executive about the allegations may have represented a breach of confidentiality.
·The delay in being able to effectively resolve the issue would have caused distress to the worker and caused him to eventually go off work.
The psychologist further expressed the view that work was a substantial factor contributing to the worker’s sub-clinical levels of distress. She then turned her attention to the provisions of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’). It does not appear that the psychologist expresses any opinion in relation to this matter apart from listing factors which may be relevant. The relevant part of the psychologist’s summary is as follows.
“I am of the opinion that at the time Mr Lancaster went off work and at the present time, his symptoms were not and are not have [sic] adequate frequency and severity to warrant a diagnosis as defined by the Diagnostic and Statistical Manual of Mental Disorders – 4th Edition but remained at a sub-clinical level.
I am of the belief that work is a substantial factor contributing to Mr Lancaster’s current sub-clinical levels of distress. The main work factors include being informed of complaints of inappropriate language had been made against him.”
The worker by letter of 1 April 2005 responded to the letter of complaint of Ms Gonzalez. He denied that he had ever made intrusive or suggestive comments towards her. He denied that he had frequently tried to be alone with her at work or at work-related functions. He said the unwelcome touching referred to by her involved his fancy dress crocodile feet connecting with her ankle momentarily. This was said to be a joke. He felt stressed that another member of staff felt threatened and intimidated by him. He said he had never been given any indication by her that this was the case. He said that had she informed him of her perceptions they would have had an amicable discussion and he could have explained himself. The worker was concerned that Ms Gonzalez had raised the complaints of other female members of staff without those members of staff themselves complaining. He requested a full mediation process so that he could deal with the allegations. He wished a peaceful agreement to transpire so that he would be able to resume leading a normal working life.
At the hearing a short report from Dr Nijher dated 10 April 2006 was admitted by consent. This was in the following terms:
“This is to certify that Mr Robert Lancaster was unable to work from 9.3.2005 to 21.5.2005 due to anxiety disorder which was work related.”
THE DECISION OF THE ARBITRATOR
As I have earlier indicated, the Arbitrator gave a decision ex tempore at the conclusion of the hearing on 18 April 2006. Since it is relatively short I will set it out in full:
“The applicant, Mr Robert Lancaster, is a 52 year old gentleman working as a teacher at Hassall Grove Public School. By most accounts, in the evidence before me, he’s a well respected teacher and is considered an asset to the teaching complement at that public school. He is a man of some experience in the education sector in this State.
In this case, the matter is brought before me to deal with the weekly benefits compensation and section 60 medical expenses pursuant to the Workers Compensation Act 1987. The first issue, as has been narrowed by the parties today, is whether or not there is an injury pursuant to the Act under section 4.
The second issue is if the answer to that question is yes, does section 11A of the 1987 Act operate to defeat the applicant’s claim. Section 4 of the Act says that ‘injury’ means ‘personal injury arising out of or in the course of employment’.
In this matter I don’t find that the definition assists me greatly. The respondent’s concern is that there simply is no injury, whether arising out of employment or not.
The respondent urges upon me the distinction or a distinction between mental trauma, as might give rise to a psychological illness or injury, and mere emotional response. That distinction is a distinction that has been well argued before the Compensation Court and before this Commission and it is one that the legal representatives today have assisted me with reference to some cases.
I must admit that the medical certificates and report of Dr Singh [sic], which refers to simply an anxiety disorder, and it especially being a report produced so long after the relevant period, do not fill me with confidence.
I have consulted AMA5 and I have inquired into DSM-IV, and it would seem that whilst stress is certainly insufficient to ground an injury under the Act, an anxiety disorder is possibly just enough to get over the mark. However I do have some reservations.
The evidence then with respect to injury, other than that of that single handwritten page of Dr Singh and the medical certificates, is only that of Ms Janet Koussa, who describes herself as a consultant psychologist. Ms Koussa’s report is the only evidence in this matter which provides some considered background to a diagnosis.
Her conclusion, as a consultant psychologist, at the end of a 22 page close typed report is that:
The applicant’s symptoms were not and are not …
And there is some grammatical clumsiness here:
have adequate frequency and severity to warrant diagnosis as defined by the DSM-IV but remain at a sub-clinical level.
I have read that conclusion very carefully, and while volume and content is not everything, Ms Koussa’s report is a structured, logical and professional review of the applicant’s condition and, as I say, reading that carefully it is her view that the applicant has not suffered any psychological injury that would be recognised by clinicians.
The fact is in workers compensation matters that the onus is on the applicant to make out an injury, and in this case there is simply insufficient evidence to make out the existence of any injury, and in the face of Ms Koussa’s report, even the flimsy veil of Dr Singh’s note is blown away.
A psychologist’s report for mere [sic] background material to conclusions drawn would have been expected. However, for whatever reason – and Mr Collins [the worker’s solicitor] has advanced some reasons which I think, while there may provide some basis for the inability to provide a report, don’t necessarily discharge the onus – no report was available in this case.
I should say, however, that in forming that view, I don’t draw a Jones v Dunkel inference, and I don’t need to do so. Having said that, and it will be apparent to the parties the nature of my orders, I should indicate, for the record that – sorry, not that I should but I will – aspects of the respondent’s handling of the matter do concern me.
I have indicated earlier that while I accept that the principal acted quickly and in the time that he had available, other aspects of the matter, while I don’t think were handled in any malicious way, certainly would concern any reasonable person, including Mr Lancaster.
I prefer the applicant’s submissions that a poorly unformulated complaint is as bad or worse to the subject of a complaint as a substantiated complaint. I can well understand Mr Lancaster’s frustration and anxiety and perhaps these comments might be considered in any application by Mr Lancaster for payment of his medical expenses. That will be a matter for the department. I can’t make any orders with respect to that, but I just give those views.
I am not, however, able to address the section 11A aspects because of my determination in respect to section 4. So my orders today are these: firstly, an award for the respondent with respect to the applicant’s claim for weekly payments of compensation and an award for the respondent with respect to the applicant’s claim for medical expenses pursuant to section 60 of the Act; and thirdly, be no order as to costs. Gentlemen, those are my orders.”
The worker’s representative foreshadowed an appeal and asked the Arbitrator to make findings in relation to section 11A of the 1987 Act and however the Arbitrator declined to do so.
SUBMISSIONS
On behalf of the worker
Although there are nine grounds of appeal, these essentially relate to the Arbitrator’s finding that the worker had not suffered an injury. There are additional matters which are the failure of the Arbitrator to consider what were said to be the real issues between the parties, namely the application of section 11A of the 1987 Act and incapacity.
The attacks on the finding of injury relate to:
· there being an error of law;
· there being an error of fact;
· misconstruing the psychological report of Ms Koussa;
· ignoring the views of the treating doctor on the question of injury;
· failing to bring an expert knowledge to the proceedings, and
·misapplying the decisions of Jaensch v Coffey (1983-1984) 155 CLR 549 and FAI General Insurance & Anor v Lucre [2000] NSWCA 346.
The worker relies on the opinion of Dr Nijher who had seen him on eight occasions and produced seven medical certificates. It is said that an anxiety disorder is an “injury” both in medicine and at law. The Arbitrator it is said failed to refer to the worker’s evidence as to the effect upon him of the events in question in paragraphs 14 to 30 of his statement. It is also said that a clear Jones v Dunkel inference may be drawn from the failure of the employer to rely on the reports of a psychologist whom the worker saw under the Employee Assistance Program on three occasions (paragraph 30 of his statement).
It is submitted that the decision of Burke J in Kolesnikova v Qantas Airways Ltd (2002) 24 NSWCCR 245 (‘Kolesnikova’) supports the contention of an anxiety disorder and also a genuine psychological condition. Reference is also made to the decision of Neilson J in Rogers v Commissioner of Police (2005) 2 DDCR 515. It is said that the views of Ms Koussa that the worker had no clinical signs of injury were inconsistent with the testing which she did and the significant weight loss which it is said the worker had suffered. It is said that the Arbitrator’s decision was based on an irrelevant consideration, namely the length of the report of Ms Koussa and that it was typed rather than handwritten.
By the employer
The employer asserts that there was no error fact or law and relies on the decision of Burke J in Bhatia v State Rail Authority (NSW) (1997) 14 NSWCCR 568 (‘Bhatia’). The employer relies on the decision of Acting Deputy President Handley in Varela v Metroform Pty Ltd [2006] NSWWCCPD 72. This decision relates to the nature of a review and the limitations which are involved in such review.
As to the Arbitrator’s reasons for rejecting the opinion of Dr Nijher, reliance is placed on Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24. The passage relied on relates to the failure of an Arbitrator to exercise his discretion fairly and according to law. However, the weight and relevance to be given to evidence is a matter in the discretion of the Arbitrator.
In relation to the Arbitrator’s failure to deal with section 11A, it is said that it was unnecessary for the Arbitrator to do so having found that there was no injury.
In further submissions the employer also submits that a Jones v Dunkel inference may be drawn by the failure of the worker to rely on a suitably qualified psychological opinion. It is said that the doctor was not fully qualified in the medical specialty which was the subject of the claim. It is said that the worker could have obtained reports from the Employee Assistance Program but chose not to do so.
DISCUSSION AND FINDINGS
“Injury” is defined in section 4 of the 1987 Act relevantly as being:
“(a) means personal injury arising out of or in the course of employment;
(b) includes –
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a continuing factor to the aggravation, acceleration, exacerbation or deterioration …”
There is a distinction to be made in the case of psychological/psychiatric injury which has its origin in the decision of the English Court of Appeal in Yates v South Kirkby Collieries Ltd [1910] 2 KB 538. Cozens-Hardy MR said at 541:
“… When a man in the course of his employment sustains a nervous shock producing physiological injury, not a mere emotional impulse, he meets with an accident arising out of and in the course of his employment.”
This is referred to by Burke J in Bhatia. His Honour also refers in Bhatia to the definition appearing in Blakiston’s Gould Medical Dictionary of physiologic or physiological meaning “pertaining to the natural or normal functional processes in living organisms as opposed to those that are pathologic”. Physiology is “the science which studies the functions of living organisms or their parts”. His Honour continued at 578 as follows:
“To say that a person has sustained physiological injury says no more than that in some degree, in one way or another, the person has become dysfunctional – does not function normally.”
There are a number of cases on this topic and I note that Acting Deputy President Roche, as he then was, has referred to many of them in Lee v Department of Education and Training [2006] NSWWCCPD 179. In Davis v Mobil Oil Australia Ltd (1988) 4 NSWCCR 8 the Court of Appeal overturned a finding in favour of the employer which was based on a finding that the injury did not arise out of or in the course of employment. The head note refers to a doctor certifying the worker unfit for work for three days because of his emotional condition. Although the matter was not argued on the basis of whether the emotional condition was an injury or not, the Court of Appeal nonetheless considered that he was entitled to compensation.
Austin v Director General of Education (1994) 10 NSWCCR 373 concerned a claim by a teacher who had failed his claim for compensation before Davidson J in the Compensation Court. The worker appealed and the relevant part of the head note of the appeal report is as follows:
“(1) To constitute a ‘frank’ injury in the course of employment within the Worker’s Compensation Act 1987, section 4 there must be a physiological effect and not a mere emotional impulse. The factual findings of the trial Judge that there was no physiological effect, which was not challenged on appeal, meant that the appellant could not establish a ‘frank’ injury within section 4.
Anderson Meat Packing Co Pty Ltd v Giocomantonio [1973] 47 WCR (NSW) 3 followed.”
Nonetheless the appeal was allowed on the basis that the trial judge ought to have considered whether there had been an aggravation of disease as a result of the worker’s employment.
In Thazin-Aye v WorkCover Authority (NSW) (1995) 12 NSWCCR 340, the Court of Appeal dismissed an appeal brought by an unsuccessful worker. The head note of that case is as follows:
“A worker who suffers frustration and emotional upset because he or she is not allowed to work in the field in which the worker wishes to work and for which he or she is trained has not received an injury within the meaning of the Workers Compensation Act 1987, section 4, unless the emotional condition produces a physiological effect.
Anderson Meat Packing Co Pty Ltd v Giocomantonio [1973] 47 WCR (NSW) 3 and Austin v Director General of Education (1994) 10 NSWCCR 373 applied.”
The decision in that case was given by Clarke JA with whom Meagher and Powell JJA agreed. At page 342 his Honour set out the finding made by the trial judge which was that:“As a result of her failure to obtain the appointment and of her transfer to alternative duties, the applicant experienced frustration and emotional upset.”
Clarke JA considered that the finding made by the trial judge was sufficient to dispose of the appeal. There was no finding in the case that the worker’s upset had produced a physiological effect. It was said that the finding was one of frustration and emotional upset simpliciter.
In Zinc Corporation Limited & Anor v Scarce (1995) 12 NSWCCR 566 (‘Scarce’), the Court of Appeal considered an appeal by an employer against an award entered in favour of the worker who was a miner. Two other miners, one of whom was the worker’s closest friend, were killed in an accident in the mine where the worker was employed. The worker was said to have been devastated by the news of this. However, he returned to work in the mine but made a number of applications to be transferred to above-ground work. He continued to suffer from a nervous condition and just over nine years after the deaths in question he ceased work. Clarke JA noted that the employer did not challenge the claim that the worker had suffered from a psychiatric state since the year of the deaths which was incapacitating. Nonetheless there was a denial that there was an injury within the meaning of section 6 of the Workers Compensation Act 1926, namely that the injury could not be said to have arisen out of his employment. Clarke JA thought that the evidence went no further than demonstrating that a death in the mine in which the worker himself worked made him frightened to return to work there. His Honour said this did not mean that his work contributed in any way to this injury and noted at 571 that the psychiatric evidence which came from consultations many years after the accident went no higher than establishing a nervous reaction to a fatality in the mine at which he worked. His Honour agreed with the orders proposed by Meagher JA, as did Powell JA.
Meagher JA expressed the view that the condition of the worker remained a “slight mystery” and his Honour referred to the language used by doctors as being “hopelessly vague”. While his Honour’s finding that the worker’s condition did not arise in the course of his employment was sufficient to dispose of the appeal, he went on to doubt that the worker’s condition constituted an “injury” simpliciter. He thought that most of the doctors had described the worker as suffering from “an anxiety state” which he said would seem to resemble an emotional impulse rather than a physiological effect.
In Bhatia, Burke J considered at length the authorities in relation to the question of psychological injury. His Honour referred to the decision of Meagher JA in Scarce and said at 579:
“In my lexicon, a diagnosis of anxiety state of such degree and long duration would be axiomatically a physiological effect. I would not expect that any psychiatrist, unless specifically asked, would feel it necessary to so categorise such a reaction. It would be taken for granted. ‘Impulse’ has to me connotations of spontaneity and transience. The Macquarie dictionary suggests ‘sudden, involuntary inclination prompting to action’. Probably a common occurrence is in the term beloved of marketing people when they speak of impulse buying. Its a spur of the moment affair. This concept fits quite well with the accepted emotional responses of people to particular stimuli – it comes, it lasts relatively briefly and it passes.”
His Honour went on to say:
“Hutley JA in Anderson Meat Packing Co Pty Ltd v Giacomantonio [1973] 47 WCR (NSW) 3 at 10 commented on the perceived dichotomy between mind and matter:
‘For there to be an injury there must be physiological consequences. The distinction between the mental and the physiological may be difficult to sustain unless the law is committed to the “dualism of Cartesian philosophy, its inveterate distinction between mind and matter” referred to by Windeyer J in Federal Broom Co v Semlitch 110 CLR 626 at 635.’”
As Burke J noted, Hutley JA dissented in that case and would have upheld the award made in favour of the worker. Returning to the facts of the case that he was considering, Burke J expressed the view that the ultimate question was:
“Has the worker received injury? Has the human organism which is the worker become dysfunctional? Any condition and debilitating and long-lasting as the effects of these relevant incidents of Mr Bhatia could hardly be conceived as anything but injury.”
In Stewart v NSW Police Service (1998) 17 NSWCCR 202. Neilson J considered a case of psychological injury resulting from the death of a work colleague. This was held not to constitute an injury arising out of or in the course of the worker’s employment. His Honour undertook a review of the authorities and re-stated what he had said in Kirby v Trustees of the Society of St Vincent De Paul (NSW) NSWCC, No. 20708/94, 11 April 1997, unreported. The summary of the law which he there gave at 4 was as follows:
“To succeed in this Court the applicant must prove that the conduct complained of constituted ‘injury’ within the meaning of the Act. Where, as here, a psychiatric injury is alleged the applicant must prove either:
(i)that the nervous system was so affected that a physiological effect was induced, not a mere emotional impulse: Yates v South Kirby Collieries Limited [1910] 2 KB 538; Austin v Director General of Education (1994) 10 NSWCCR 373; Thazine-Aye v WorkCover Authority (NSW) (1995) 12 NSWCCR 304; Zinc Corporation Limited v Scarce (1995) 12 NSWCCR 566, or
(ii)the aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition: Austin’s case.
Frustration and emotional upset do not constitute injury: Thazine-Aye’s case; nor, semble, where a mere ‘anxiety state’: the Zinc Corporation case per Meagher JA at 575B.
A ‘straight litigation neurosis’ is not compensable: Karathanos v IndustrialWelding Co. Ltd [1973] 47 WCR (NSW) 79 and 80. A misperception of actual events, due to the irrational thinking of the worker leading to a psychiatric illness is not compensable: Townsend v Commissioner for Police (NSW WCC, No. 8061/89, McGrath CJ, 17 February 1992, unreported).
It follows that subsequent rationalisation of earlier innocuous events, which rationalisation leads to psychiatric illness is also not compensable. Furthermore, once the applicant has established ‘injury’ she must prove that an incapacity for work resulted therefrom.”
His Honour referred to the decision of Burke J in Bhatia without comment.
Burke J returned to the subject of psychological injury in Kolesnikova That case concerned a flight attendant who was concerned about the safety of flying on Qantas aircraft. The diagnosis was “anxiety disorder in association with a phobic disorder”. Qantas submitted that there was no injury saying that there was simply an emotional impulse. It was urged on behalf of the employer that the similarities of the facts in that case to those in Scarce meant that the worker must fail. Burke J noted that in Scarce the trial had been eight or nine years after the relevant events said to have caused injury and Mr Scarce had continued to work underground for 15 months after the deaths in question and above ground for many years thereafter. His Honour found that the worker suffered from a genuine psychological condition and was entitled to compensation.
The High Court has considered the question of psychiatric or psychological injury in a common law context in Tame v New South Wales (2002) 211 CLR 317 (‘Tame’). Gummow and Kirby JJ gave a joint judgment while each of the remaining five Justices of the High Court delivered separate judgments. Gummow and Kirby JJ referred at [193] to the decision of the New Zealand Court of Appeal in van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at 197 as follows:
“[I]t was seen as significant that psychiatry distinguished between mere mental distress and psychiatric illness, albeit the distinction was one of degree rather than of kind and might change with advances in medical knowledge.”
Their Honours went on to say that:
“Grief and sorrow are among the ‘ordinary and inevitable incidents of life’ [Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 416]; the very universality of those emotions denies to them the character of compensable loss under the tort of negligence. Fright, distress or embarrassment, without more, will not ground an action in negligence. Emotional harm of that nature may be evanescent or trivial.”
Hayne J in Tame discussed the difficulty in distinguishing between psychiatric injury and mental distress. He said:
“[292] Little explicit attention has been given to identifying the basis upon which the distinction between psychiatric injury and mental distress is to be made, beyond noting that it is the only the former which is compensable. So far, the courts appear to have been content to defer to the way in which psychiatrists distinguish between the two. [Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 491 per Lord Steyn]. That may not be surprising when it is recalled that decisions have focussed upon the application of other limiting factors such as the requirement for something in the nature of a shocking event but its importance should not be ignored.
[293]. That importance can be illustrated by considering post-traumatic stress disorder [cf Morris v KLM Royal Dutch Airlines [2002] 2 WLR 568; [2002] 2 All ER 565]. The revised fourth edition of the Diagnostic and Statistical Manual of Mental Disorders [American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed, Text Revision (2000) at 468] (commonly referred to as ‘DSM-IV-TR’) gives six diagnostic criteria for identifying post-traumatic stress disorder. Of those, the last is that ‘[t]he disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning’. The diagnostic criteria also include criteria whose application depends upon the patient’s report of subjective feelings of helplessness, fear, horror and the like. It is at these points, of capacity to participate in ordinary activities, and reports of subjective feelings that the intersection between law and medicine may be thought to present difficulties. No doubt it is the difficulty of identifying that intersection which explains why the introduction to DSM-IV-TR [Diagnostic and Statistical Manual of Mental Disorders, 4th ed, Text Revision (2000) at xxxii-xxxiii] says that:
[W]hen the DSM-IV categories, criteria, and textural descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the question of ultimate concern to the law and the information contained in a clinical diagnosis.” (Emphasis added.)
[294] The problem is not just a problem of articulating appropriate and relevant criteria for distinguishing compensable conditions from the non-compensable. Once it is recognised that capacity to participate in ordinary activities is, not surprisingly, an important consideration for a psychiatrist treating a patient, and that the psychiatrist, again not surprisingly, is concerned to deal with the patient according to that patient’s history and presentation rather than by reference to some objective inquiry into the truth of that history and presentation, it is clear that there is truly an ‘imperfect fit’ between the questions that are ultimately concern to the law and those of concern to the clinician. The psychiatrist treating a patient is concerned to look backwards only for the purpose of identifying present and future treatment. In particular, determining the cause of an existing condition is important to the discipline of psychiatry only for the light it sheds on future treatment. But for a legal system which assigns responsibility only if there is fault, the focus on cause is critical to that task of assigning responsibility.”
The Arbitrator in this matter found that the worker had not satisfied the onus of establishing injury. He relied, in so doing, on the conclusions reached by Ms Koussa and discounted Dr Nijher’s opinion, referring to it as being contained in “the flimsy veil of Dr Singh’s note” and being “blown away” in the face of Ms Koussa’s report. I emphasise that upon review a Presidential Member is not conducting a re-hearing but is required to find an error of fact, law or discretion affecting the decision made by the Arbitrator, but for which a different decision would have been made.
Ms Koussa examined the worker on 18 April 2005, that is, only forty days after he went off work on 9 March 2005. Despite her conclusion that the worker’s symptoms were not of adequate frequency and severity to warrant a clinical diagnosis, she expressed the view at page 19 of her report that the delay in being able to effectively resolve the issue [the resolution of the complaints made] would have caused distress to Mr Lancaster and would have caused him eventually to go off work. At page 14 of her report she expressed the view that “Depression is being experienced in a somatic form such as changes in energy level, decrease in sleep, decrease in sexual interest and loss of appetite”.
The question which the Arbitrator was required to answer, in my view, was whether the worker’s symptoms were such as to amount to a physiological effect and not a mere emotional impulse. The Arbitrator came to the view that an anxiety disorder was possibly just enough to get over the mark [that is, constituting an injury under the 1987 Act]. He did say, however, that he had some reservations. Ms Koussa did not consider whether the worker had merely an emotional impulse or a physiological manifestation of symptoms. It seems to me that insomnia for a period of months must have a physiological affect on a person and that was the worker’s unchallenged evidence. It is puzzling that Ms Koussa appears to have accepted the events complained of would have caused the worker to cease work. That is, it seems to me, an acknowledgement by Ms Koussa that events had happened in the workplace which had an effect on the worker causing him to be unable to work. There was no suggestion that he did so following an emotional impulse. Dr Nijher had consistently certified the worker unfit for work with anxiety, stress and insomnia. He did not, however, prescribe medication for the worker and there appears to have been no treatment apart from the unsuccessful trial of sleeping pills.
I have come to the conclusion that the Arbitrator erred in failing himself to consider whether the legal requirements for establishing injury had been met. He unquestioningly accepted the opinion of Ms Koussa on this issue and, with respect, the conclusion to which Ms Koussa came was not in my opinion supported by any sufficient reasons. It is not clear what DSM-IV classification she was looking at or in what respect such classification was not met. The Arbitrator failed to consider whether, on the evidence, “the human organism which is the worker [had] become dysfunctional”. (Bhatia).
During the telephone conference I was advised that there were other proceedings for compensation on foot and that the claim the subject of this appeal was not the only claim made by the worker. It would, in my view, be advantageous for all claims made by the worker to be heard together. It will be necessary to determine those issues which remain undecided by the Arbitrator in this case.
DECISION
The decision of the Arbitrator dated 26 April 2006 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons together with the other outstanding claims by the worker.
COSTS
The respondent/employer is to pay the costs of the appellant/worker.
Anthony Candy
Acting Deputy President
13 February 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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