Michael Bennett v NSW Police Service

Case •

[2004] NSWWCCPD 14

•

23 March 2004

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Michael Bennett v NSW Police Service [2004] NSWWCCPD 14

APPELLANT:  Michael Bennett

RESPONDENT:  NSW Police Service

INSURER:GIO Workers Compensation

FILE NUMBER:  WCC3293-2002

DATE OF ARBITRATOR’S DECISION:          14 July, 2003

DATE OF APPEAL DECISION:  23 March, 2004

SUBJECT MATTER OF DECISION:                Fresh evidence.  Whether presence of symptoms was disputed or required corroboration.  Whether injury alleged was sustained and if so, was employment a substantial contributing factor.  Whether Arbitrator considered all of the evidence.

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:Determined ‘on the papers’

REPRESENTATION:  Appellant: Burridge & Legg, Solicitors  

Respondent: Phillips Fox, Solicitors

ORDERS MADE ON APPEAL:  Leave to appeal is granted.  The decision of the Arbitrator is confirmed.  No order is made as to costs.

BACKGROUND TO THE APPEAL

  1. On 6 August, 2003 Michael Bennett (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’) against a decision of an Arbitrator, dated 14 July, 2003. 

  1. The Respondent to the Appeal is the NSW Police Service (‘the Respondent Employer’).

  1. The Insurer is GIO Workers Compensation (‘the Insurer’).

  1. The basis of the Appellant Worker’s claim that was in dispute before the Arbitrator, is the loss of wages for the period 8 July, 2002 to 10 March, 2003, together with the cost of attending counselling for a psychological injury alleged to have arisen out of and in the course of his employment as a Special Constable.  The Appellant Worker claimed to have suffered the injury for which loss of wages and medical expenses are claimed, following an incident at work on 18 October, 1999, as a consequence of which it is alleged that he suffered psychological injury.  That incident involved being confronted in the foyer of Police Headquarters by a person who possessed a gun. The Appellant Worker expressed serious concerns for his safety in this situation.  The Appellant Worker advised the Respondent Employer of the incident on the day that it occurred, and an investigation was conducted immediately.  The Appellant Worker claims that he was off work on 19 and 20 October, 1999 although these were in fact, rostered days off.  He did not notify the Respondent Employer formally, of any injury until 8 July, 2002, which was the day on which he was to transfer to the Office of the Director of Public Prosecutions, in the City of Sydney (‘the DPP’).  The Respondent Employer formally rejected the claim in a letter dated 17 September, 2002.  The Appellant Worker duly filed the Application, which was received in the Commission on 14 October, 2002, claiming compensation for medical expenses and loss of wages, as a consequence of the alleged psychological injury that occurred on 18 October, 1999.  The Respondent Employer filed its Reply, which was received in the Commission on 25 October, 2002, denying liability, offering no objections to the facts in the matter, and making submissions as to medical and legal issues.

  1. Correspondence between the parties and the Commission was finalised at the end of November, 2003 and the matter was allocated to me in December, 2003.  Leave to appeal was granted on 9 December, 2003 and directions were issued by me to the parties, on the same date.  Detailed and final submissions were received in the Commission during February 2004.

  1. The issues in dispute before the Arbitrator are set out in the Arbitrator’s Statement of Reasons for Decision, as follows:

·     “Did the Applicant receive an injury arising out of or in the course of employment? (WCA s 9)

·     Was the Applicant’s employment a substantial contributing factor to his injury? (WCA s 9A)

·     Was there an ‘injury’ within the meaning of s 4WCA?

·     Did the Applicant’s alleged condition in any event manifest itself as a result of reasonable action taken by the employer in respect of the proposed transfer of workplace? (WCA s 11A)”

References to “WCA” herein, are references to the Workers Compensation Act, 1987 (‘the 1987 Act’).

  1. The Applicant was not successful before the Arbitrator, and each of the parties was ordered to pay his/its own costs of the proceedings.  The findings of the Arbitrator are summarised in paragraph 48 of the Arbitrator’s Statement of Reasons for Decision, dated 14 July, 2003, as follows:

·“The Applicant suffered a mild anxiety response arising out of or in the course of his employment by the Respondent on 18 October 1999.

·I am not satisfied that the Applicant’s employment with the Respondent was a substantial contributing factor to any psychological injury.

·To the extent that the work incident in July 2002 was a contributing factor to the psychological injury, I am satisfied that this was by reason of a transfer within the Respondent’s work divisions and as such s 11A(1) of WCA precludes the Applicant from successfully maintaining a claim against the Respondent.”

JURISDICTION TO HEAR THE APPEAL

  1. 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’), which provides:

    352Appeal against decision of Commission constituted by Arbitrator

    (1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.

    (2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:

    (a)at least $5,000 (or such other amount as may be prescribed by the regulations), and

    (b)  at least 20% of the amount awarded in the decision appealed against.

    (3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.

    (4)An appeal can only be made within 28 days after the making of the decision appealed against.

    (5)An appeal under this section is to be by way of review of the decision appealed against.

    (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.

    (7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

    (8)In this section, decision includes an award, interim award, order, determination, ruling and direction.

  1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The date of the Arbitrator’s decision was 14 July, 2003. Notwithstanding that the Application to appeal was not registered by the Commission until 25 September, 2003 it was in fact received in the Commission, and date stamped, on 6 August, 2003.

  1. According to the Arbitrator, the amount of the disputed claim for expenses pursuant to section 60 of the 1987 Act, is $1,260 “for attendance at counselling in the period 12 July 2002 – 13 September 2002 and for further attendance in the future, if a general order under s60 is made.” - (see paragraph 34 of the Arbitrator’s Statement of Reasons for Decision). At page 2 of the transcript of the proceedings conducted before the Arbitrator on 13 June, 2003 he quotes the figure of $1,310, which is also the figure stated in the Schedule of Wage Loss and Out of Pocket Expenses produced on 29 May, 2003. However, I note that the amount sought in the ‘Application to Resolve a Dispute’ is in fact, $1,360. A further claim for $26,522 for loss of wages from 8 July, 2002 to 10 March, 2003 (35 weeks) is also in dispute, the precise amount in issue having been agreed between the parties. It follows that the amount of compensation at issue in this appeal is in excess of $5,000. The requirement of section 352(2)(a) is satisfied. As no monetary award was made, one hundred percent of the amount of compensation claimed remains in issue, and section 352(2)(b) does not operate to preclude a grant of leave: “…the amount of compensation at issue on the appeal” is determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. The application of section 352(2) has been considered by the Commission in a number of previous cases (cf. Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5; ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21; Ingram v Norco Co-operative Limited [2003] NSW WCC PD 1; Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSW WCC PD 3; Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5; WorkCover Authority v Riordan [2003] NSW WCC PD 13; Grimson v Integral Energy [2003] NSW WCC PD 29, and Fadlallah v Canterbury City Council [2004] NSW WCC PD 6).

  1. I reaffirm my decision of 9 December, 2003, to grant leave to appeal in this matter.

ON THE PAPERS REVIEW

  1. Section 354(6) of the 1998 Act provides:

354    Procedure before Commission

(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.

  1. The Appellant Worker initially submitted that the matter should not be determined on the papers on the bases that:

·“The appeal requires a careful examination of the material which was before the Arbitrator”;

·“…that an opportunity should be given to further develop submissions in support of the appeal by way of oral submissions”;

·“It is also appropriate that matters raised in the Respondent’s Notice of Opposition be addressed and that this can most efficiently be done by way of oral submissions”, and

·“A crucial element in the appeal concerns what challenge was made in respect of the causal connection between the incident in October 1999 and the psychological symptoms experienced in 2002.  In particular, the Appellant argues that it was not contested on the papers that the Appellant continued to suffer symptoms as he described in his statement during that period.  If that issue is to be properly ventilated on appeal, the Appellant will seek leave to call evidence from the Appellant’s wife.  Such an application could only properly be dealt with during oral submissions.”

  1. The Respondent Employer submitted that the matter should be determined ‘on the papers’.

  1. On 9 December, 2003 I reserved my decision as to whether this appeal should be dealt with ‘on the papers’ and directed that the Appellant Worker could make further written submissions in support of any issues in the appeal and in the supporting documents that had been filed.  I also directed that the Respondent Employer could make any written submissions that it may wish to make, in response to the further written submissions of the Appellant Worker.  Both parties duly lodged, and served upon each other, further and quite detailed written submissions.  The Appellant Worker addressed each of the issues outlined above and also filed as fresh evidence, a statement dated 18 December, 2003, made and signed by Tina Bennett, his wife.  Neither party made any further reference as to whether the matter should proceed to an oral hearing or could be determined ‘on the papers’.

  1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the detailed written submissions made by the parties, I am satisfied that the appeal can proceed to be determined on the basis of these written submissions and other documents.  Consequently, I am satisfied pursuant to section 354(6) of the 1998 Act, 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 ON APPEAL

  1. The issues on appeal are set out in the ‘Statement of Grounds of Appeal’ lodged by the Appellant Worker on 6 August, 2003 with his ‘Application’.  They are:

“1.    In finding that the incident of 18th October 1999 was not a substantial contributing factor to the applicant’s injury, the Arbitrator ignored or did not take into account the medical evidence presented including the evidence of the respondent’s consulting psychiatrist Dr Lewin who was of the view that there were several significant contributing factors to the applicant’s condition one of which was his emotional reaction to the events of 18th October 1999, that it was possible the symptoms in July 2002 were related to the incident in October 1999 and that the applicant’s symptoms as at December 2002 could reasonably be related in part to a reactive anxiety condition arising in October 1999.

2.       There was no dispute about the applicant’s evidence as to his subjective reaction and no suggestions that he did not suffer the symptoms of which he complained and accordingly the opinion expressed by the Arbitrator that the applicant’s wife who might have been able to corroborate the applicant’s complaints was not called is irrelevant.

3.       The Arbitrator did not consider the fact that the marital disharmony suffered by the applicant was a consequence of the change in the applicant’s behaviour following the events of October 1999.  The evidence discloses a causal link between the October 1999 incident and the subsequent marital problems.  Because of that causal link any symptoms caused by the marital problems are compensable.  This matter was not addressed by the Arbitrator.

4.       The Arbitrator did not consider the question why the applicant would find a proposed transfer of duties stressful.  That proposed transfer led to a manifestation of symptoms caused by the previous established psychological injury.

5.       The Arbitrator was in error in not taking into account the report of Aphrodite Kyriakou relied upon by the applicant.”

FRESH EVIDENCE

  1. The Appellant Worker’s application to submit the statement of Tina Bennett as fresh evidence, is not directly opposed by the Respondent Employer, although the following comments were made in its further, written submissions received in the Commission on 14 January, 2004:  

“…the Respondent submitted that the Appellant had not provided any medical support for his alleged condition, and on this basis, we dispute the Appellant’s assertion that no indication had been previously provided to the effect that the Appellant’s history of symptoms was called into question.

Accordingly, the Respondent submits that the Appellant was on notice at least from the filing of the Amended Reply, including the relevant enclosures attached thereto, of the Respondent’s arguments in defence of this matter, which were outlined by the Arbitrator in this [sic] Statement of Reasons for decision.  In this respect, the Appellant’s decision not to call his wife to provide oral evidence in support of his alleged injury was a tactical decision made with the knowledge of the entirety of the Respondent’s case as detailed in the initial Reply and Amended Reply with all the relevant attachments and canvassed at the teleconference and conciliation conference prior to [sic] arbitration hearing.

In any event, it is not clear from the Arbitrator’s decision that the failure to call the Appellant’s wife to give evidence at the arbitration hearing was prejudicial.  In this respect, the Arbitrator does not refer at length to the importance, if any, placed on this aspect of potential corroboration.  In addition, the Respondent questions the utility of the Appellant’s wife’s statement.  In this regard, the statement a [sic] provided by Mrs Bennett and attached to the Appellant’s further written submission do [sic] not elucidate the Appellant’s alleged psychological condition at the time between October 1999 until July 2002, and she cannot comment except as a lay person as to the subjective complaints purportedly asserted by her husband.

However, despite Mrs Bennett’s statement, the Respondent submits that the Appellant has not provided any objective, contemporaneous evidence, even with the inclusion of his wife’s statement, and therefore still does not satisfy its burden of establishing that the Appellant suffered any psychological injury, as defined in the Act, following the frank incident in October 1999.”

  1. In seeking to introduce the statement of Tina Bennett into evidence in this appeal, the Appellant Worker submits that a crucial element concerns “what challenge was made in respect of the causal connection between the incident in October 1999 and the psychological symptoms experienced in 2002”.  In particular, he argues that it was not contested on the papers that the Appellant continued to suffer symptoms as he described in his statement during that period.  In his further submissions, the Appellant Worker states:

“At paragraph 39 the Arbitrator refers to the Applicant’s evidence of the symptoms that he suffered between 1999 and 2002.  It is unclear whether he accepts or rejects that evidence as he makes no express finding.  The use of the word ‘whilst’ at the commencement of the paragraph and his reference to the fact that there was no evidence from the Applicant’s wife suggests that the evidence was not accepted.  If this is the case the Arbitrator was in error.  Firstly, as has already been set out, there was no dispute disclosed by either the notice or the Reply concerning the symptoms during that period.  Secondly, none of the material that had been filed in the proceedings questioned the validity of the Applicant’s history about symptoms.  The statement of Lynne Clarke was to the effect that the Applicant was withdrawn and not the same person.  Thirdly, there is no indication that the Applicant was made aware of any dispute about his history and being afforded an opportunity to call further evidence at that stage.

The last point amounts to an injustice of the type referred to by Deputy President Fleming in Ross v Zurich Insurance.  It is submitted that if the Commission is of the view that the Applicant’s symptoms between 1999 and 2002 were the subject of a dispute that could have been properly determined by the Arbitrator then the injustice can only be rectified by allowing the Applicant to call fresh evidence from the Applicant’s wife.

Finally on this point the question must be asked precisely what use the Arbitrator made of the fact that the Applicant’s wife was not called.  The only proper inference in the absence of an explanation of why she was not called is that her evidence would not have advanced the Applicant’s case.  That inference can only be drawn when there is a dispute on the evidence.  In this case there was no evidence to contradict the Applicant and accordingly the circumstances did not arise which would have allowed the Arbitrator to draw an adverse inference.

The Arbitrator’s reference to the failure to call the wife is largely unexplained. The Arbitrator does not say that he disbelieves the Applicant or that he found that the Applicant had made a full recovery from the undisputed effects of the 1999 incident.  The applicant is left unsure how the evidence was treated or what part it played in the Arbitrator’s decision.  To that extent there has been a failure in the Arbitrator’s obligation to provide reasons.”

  1. For the purposes of this application, section 352(6) of the 1998 Act provides that evidence that is fresh evidence or evidence that is in addition to the evidence received in relation to the decision appealed against may not be given on appeal to the Commission except with the leave of the Commission. Practice Direction No 6 sets out the procedural requirements that must be satisfied in making an application. Without making any findings as to the substantive issues raised in the Appellant Worker’s submissions on appeal, I find that he has complied with the requirements of the Practice Direction.

  1. Practice Direction No. 6 further states:

    “In general, the Commission will allow new evidence to be given 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.”

  2. The principles relevant to the exercise of the discretion to admit fresh evidence in appellate proceedings have been discussed and reviewed by the courts at various times.  A discussion of these principles is to be found in previous decisions of the Commission (Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7; M & S Shipman Pty Ltd v Larry John Matters [2003] NSW WCC PD 19). The factors that weigh in favour of the exercise of a discretion to admit fresh evidence include: whether a substantial injustice will result to the party who seeks to have the evidence admitted, if the request is refused; whether the evidence could not have been discovered with reasonable diligence, at the time of the original proceedings, and whether 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. Factors that militate against the exercise of the discretion to admit fresh evidence include: the interest in the finality of litigation and the importance of the ability of the successful party to rely upon the outcome of the proceedings; the prejudice if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal, and the intention of the legislative scheme in relation to the nature of the proceedings. Fresh evidence may raise new arguments in an appeal: Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287. However, it is undesirable and potentially unfair to allow a party in effect, to present a new and different case on appeal: Coulton v Holcombe (1986) 162 CLR 1. In relation to the intention of the legislative scheme with regard to the nature of workers compensation proceedings, Rule 38(1) of the Workers Compensation Commission Rules 2003 (‘the Rules’) requires an Applicant to lodge and serve with the Application to Resolve a Dispute, all information and documents on which the applicant proposes to rely and that are in the possession or control of the applicant at that time.

  1. The “Amended Reply” dated 27 May, 2003 lodged by the Respondent Employer indicates at page 8 that there were no factual issues in dispute in the matter before the Arbitrator.  It goes on to outline “legal” and “medical” issues (distinguishing “medical” from other issues of fact) that were in dispute between the parties.  The presence or otherwise of symptoms displayed by the Appellant Worker is a question of fact, but is obviously linked to any alleged injury that might have given rise to particular symptoms.  On my reading of the documents that were before the Arbitrator and that are now before me on appeal, it was reasonable for the Appellant Worker to believe that generally, the factual existence of symptoms of something, as described by him, (as opposed to any disputed injury or medical condition) had not been challenged, right up to the arbitral hearing.  However, he could have been under no misapprehension that the injury as alleged, and his medical condition and its cause, were in dispute notwithstanding any symptoms claimed.  According to the transcript, there were some observations made during the arbitration proceedings as to “corroboration”, but the differences between symptoms as described by the Appellant Worker himself, injury and actual medical condition are not at all clear in those discussions.  Undoubtedly, the Appellant Worker could have put forward Mrs Bennett’s evidence at an earlier and more appropriate time, but in the circumstances, there was no apparent reason to do so.  The comments of the Arbitrator at paragraph 39 of his Statement of Reasons for Decision, could lead to the inference either, that he did not believe the Appellant Worker’s version of symptom manifestation (notwithstanding that this specific and narrow issue was apparently not in dispute, and certainly not in insofar as the Appellant Worker understood), and/or that he did not turn his mind to the distinction between symptoms as described by the Appellant Worker himself on the one hand, and injury and medical condition and its cause, on the other, in the context of the submissions and discussions in the case.  Admittedly, the Arbitrator made no particular finding on the matter, but there are no other inferences reasonably to be drawn having regard to his comments.  He was in error in making his observations as to the possible need for corroboration of facts regarding symptoms described by the Appellant Worker himself, which were strictly speaking, not formally disputed, notwithstanding what the Respondent Employer now submits to the contrary.  On balance, I consider that it would be unjust in the circumstances, not to admit into evidence Mrs Bennett’s statement of 18 December, 2003, in this appeal.  However, it can be admitted as evidence only as to what she herself claims to have observed, insofar as apparent symptoms are concerned.  The document is admitted into evidence, on that basis.   

Other evidence

  1. The other evidence that was before the Arbitrator, as outlined at paragraph 19 of his Statement of Reasons for Decision, is before me in this appeal, in addition to a copy of the transcript of the proceedings on 13 June, 2003.

SUBMISSIONS

The Appellant Worker

  1. The submissions as to the grounds of appeal are outlined above and need not be repeated.  A good deal of the further submissions lodged by the Appellant Worker in the Commission, and dated 22 December, 2003 was directed to the issue of his description of his symptoms, and the apparent inference drawn by the Arbitrator.  That has been dealt with at paragraphs 18-23, above.  The evidence of the Appellant Worker and Mrs Tina Bennett, his wife, is accepted as to their accounts of his apparent symptoms, but it must be taken in the context of the whole body of evidence in this matter.  The issue that has been raised as to a lack of complaint or attempt to obtain assistance from a medical practitioner following the events of 18 October, 1999 is another matter. 

  1. The Appellant Worker submits that the Arbitrator makes reference only to the medical evidence of Dr Lewin notwithstanding that this was not the only evidence before him.  Other medical material included the opinion of Dr Johnson “that the Applicant suffered from a post traumatic stress disorder when the only recorded history of relevant was the arrest in 1999.  That opinion was expressed in August 2002 when the Applicant’s condition was more acute than when seen later by Dr Lewin.”  Aphrodite Kyriakou, the treating psychologist examined the Appellant Worker on 12 July, 2002 and diagnosed a post traumatic stress disorder due to the incident in 1999.  “She explained how the complex symptom pattern reported by the Applicant between 1999 and 2002 was characteristic of that condition.  Those symptoms subsequently resulted in re-evoked distressing and overwhelming feelings leaving the Applicant experiencing an inability to cope with his occupational demand from the 8th July 2002 to 19th March 2003…the only reference to the report of Ms Kyriakou is at paragraph 19 which merely lists the evidence tendered.  There is nothing in the decision that informs whether the psychologists report has been considered.”  The Appellant Worker submits that it is difficult to know whether that evidence has been accepted or rejected, and further, that it is important in this case that the psychologist saw the Appellant Worker when the condition was at its worst.  “The failure of the Arbitrator to consider the evidence of Ms Kyriakou has led him to an incorrect conclusion regarding the causes of the Applicant’s incapacity.” 

  1. It is submitted that Dr Lewin considered that there were several significant contributing factors to the Appellant Worker’s condition, but he makes reference only to three of them.  He identified the incident of October, 1999 and the reaction to the requirement for the Appellant Worker to move to the office of the DPP, as factors contributing to the development of the symptoms experienced in July, 2002.  “Marital difficulties were only identified as contributing to an increase in the intensity of symptoms which were occurring at the time that Dr Lewin saw the Applicant in December 2002 by which time the Applicant had been incapacitated for 5 months.”  Ms Kyriakou’s report revealed that he was not relating his condition to marriage difficulties when being treated, but rather, they were a consequence of his continuing post traumatic stress.

  1. The Appellant Worker submits that the Arbitrator’s finding at paragraph 43 that his condition coincided with his marital difficulties, is not supported by the evidence.  While there may have been some dissatisfaction for most of the time since 1999 there is no evidence of anything occurring in the marriage in the period immediately before the episode of July, 2002.  “The coincidence that the Arbitrator considered so significant simply did not exist.”

  1. It is further submitted that the Arbitrator did not consider why it was that the Appellant Worker found the impending transfer so stressful.  It was not a move that would normally be expected to result in injury and was not a demotion or form of punishment.  The new position did not expose the Appellant Worker to extreme danger in the usual sense.  The Appellant Worker maintains that he reacted because of his prior experiences in 1999 and the unresolved post traumatic stress resulting from them. 

  1. The Appellant Worker submits that the Arbitrator does not identify the injury that he has suffered and to which consideration is required to be given, to establish whether or not employment is a substantial contributing factor, pursuant to section 9A of the 1987 Act.  The section only requires the employment to be a substantial contributing factor to the injury.  “Once injury is established there is an entitlement to compensation if there is a causal link between the injury and the incapacity applying the common law test of causation...  The injury need only be one of multiple causes and does not need to be substantial.”  The Appellant Worker submits that the distinction is of significance in this case.  He states:

“The injury suffered by the Applicant is described by Ms Kyriakou as a Post Traumatic Stress Disorder and by Dr Lewin as an Adjustment Disorder.  That condition was established well before July 2002 and was caused by the events of October 1999.  What happened in July 2002 was an increase in symptoms to an extent that the Applicant became incapacitated.  Those symptoms occurred because the Applicant had the preexisting work caused condition.  There can be no doubt that the condition was a material contributing factor to the incapacity and accordingly the Applicant is entitled to compensation for the duration of that incapacity.”

  1. It is further submitted that the comments regarding section 9A of the 1987 Act also apply to section 11A of that Act.  The section is concerned with the causes of injury as opposed to incapacity.  The transfer of the Appellant Worker did not cause the condition that already existed: 

“The only role that the transfer played was as a provocation to the manifestation of the symptoms of the pre existent injury.  Even if the transfer was seen as a contributing factor to the injury it could not be said that the injury was wholly or even predominately caused by the transfer.  The predominant cause was the events of 1999.  Those were the only events that had the character of threatening the Applicant which are considered to be pivotal in the development of such conditions.”

The Respondent Employer

  1. Initial written submissions were dated 5 September, 2003 and 4 November, 2003.  Further submissions were lodged on 14 January, 2004 but are dated 14 December, 2003. 

  1. In its submissions of 5 September, 2003, the Respondent Employer refuted the claim that the Arbitrator ignored or failed to take into account the medical evidence presented, and submits that he carefully considered all of the medical evidence as set out at paragraph 19 of the Statement of Reasons for Decision.  It is further submitted that the reports of Dr Lewin do not form a basis for the submissions made by the Appellant Worker that Dr Lewin was of the view that there were “several significant contributing factors to the Applicant’s condition.  Rather, Dr Lewin opined that he ‘considered it possible’ that his symptoms in July 2002 were related to the incident in October 1999 at the Police Centre.”  He went on to note other factors including marital crisis as relevant factors.  Dr Lewin did not find on the balance of probabilities, that the alleged incident in October, 1999 was a substantial contributing factor to the Appellant Worker’s psychological condition.  Accordingly, the Arbitrator did not fall into error in reaching the conclusion that he did, on the basis of all of the material, including all of the medical evidence, before him.

  1. The Respondent Employer disputes the claim that there was no dispute about the Appellant Worker’s evidence as to his subjective reaction and no dispute about the symptoms that he claimed to suffer.  This has been dealt with at paragraph 18-23, above.  However, in terms of the alleged injury and any psychological condition, the Respondent Employer submits: 

“…it was both explicitly stated in the Respondent’s argument and submissions that the Respondent disputed the causal connection between the alleged injury and any psychological condition which the Applicant suffered in 2002, primarily because of the lack of contemporaneous record of complaint of any symptoms between October 1999 and 2002.”

The Arbitrator correctly found that there was a significant issue as to the causal nexus alleged, between the incident in October, 1999 and the onset of the alleged psychological symptoms in 2002.  It was made plain in both argument and submissions that the issue was the failure to make any complaint to the medical practitioners between October, 1999 and July, 2002.

  1. It is further submitted that the Appellant Worker fails to identify any evidence to support his assertion that the evidence discloses a causal link between the October, 1999 incident and the subsequent marital problems.  Ms Kyriakou’s report of 27 May, 2003 expressed a contrary conclusion.  The Arbitrator took Ms Kyriakou’s evidence into consideration and therefore, did not fall into error.

  1. The Appellant Worker’s submission that the Arbitrator did not give consideration to the proposition that the applicant would find a proposed transfer of duties stressful, and how that transfer led to a manifestation of symptoms caused by the previous, established psychological injury, is not supported by the evidence. 

  1. The written submissions dated 4 November, 2003 addressed the issue of timeliness in lodgment of the appeal (dealt with at paragraph 9, above), and repeated the submissions made in the document dated 5 September, 2003.

  1. Paragraphs 1 to 9 of the submissions of 14 January, 2004 relate to the issue of symptom manifestation and the value of corroboration provided by the Appellant Worker’s wife.  This has been dealt with and requires no further elaboration.  However, the critical aspect of the submission on this issue goes to the weight to be attached to the evidence of the Appellant Worker and the statement of his wife, and the legal and medical conclusions, if any, that can be drawn.  I note in particular, the following submissions, set out in paragraphs 8 to 11 of the document:

“…the statement a [sic] provided by Mrs Bennett and attached to the Appellant’s further written submission do[sic] not elucidate the Appellant’s alleged psychological condition at the time between October 1999 until July 2002, and she cannot comment except as a lay person as to the subjective complaints purportedly asserted by her husband.

However, despite Mrs Bennett’s statement, the Respondent submits that the Appellant has not provided any objective, contemporaneous evidence, even with the inclusion of his wife’s statement, and therefore still does not satisfy its burden of establishing that the Appellant suffered any psychological injury, as defined in the Act, following the frank incident in October 1999.

Further, it is submitted that any psychological symptoms suffered by the Appellant in the period October 1999 until July 2002 were not of a severity to cause him any functional incapacity, which is evidenced by his ability to continue his pre-injury employment without impediment, until he was advised of the proposed transfer to the DPP, which transfer was to facilitate the Appellant’s desire to continue with 8 hour rather than 12 hour shifts.

On the basis of that factual evidence, which is not contravened either by the Appellant of [sic] his wife, the Respondent submits that the Arbitrator did not err in noting the discrepancy between the Appellant’s actual contemporaneous functioning, and his alleged psychological symptoms during the same period, so as to infer that he did not in fact suffer any incapacitating psychological injury as a result of the incident in October 1999.”

  1. The Respondent Employer notes that according to paragraph 19 of his Statement of Reasons for Decision, the Arbitrator states that, in formulating his decision, he took into account the medical reports and certificates of Dr Johnson as well as the clinical notes and medical reports of Ms Kyriakou, in addition to other information.  It is submitted that the relevant weight to be placed on any information tendered by both parties is a matter of discretion for the Arbitrator in arriving at his decision, and is not evidence of a demonstrable error.

  1. The Respondent Employer comments that the Appellant Worker further claims that the Arbitrator erred in not identifying the injury that he allegedly suffered as to whether it was “substantially work related pursuant to section 9A of the Act.”  It is submitted that the Appellant Worker’s analysis of section 9A of the 1987 Act is incorrect to the extent that if an injury is established, the test to be satisfied is whether an injured worker’s employment was a “…’substantial contributing factor to the event causing the injury or to the receipt of injury’ (Rootsey v Tiger Nominees Pty Ltd (2002) 20 NSWCCR 725 per Nielson J at 733).  Clearly the causal connection to be proven is between employment and injury, not injury and incapacity.”  It is submitted that in paragraph 38 of his decision, the Arbitrator stated that he was not satisfied that the incident on 18 October, 1999 was a substantial contributing factor to the alleged injury.  He submits:

“In our view, the Arbitrator whilst accepting that the Appellant suffered an injury (see paragraph 48), was nevertheless not persuaded that the cause of that injury was related to the Appellant’s employment, and in particular the frank incident that occurred on 18 October 1999.  In his discussion of the requirements of Section 9A, the Arbitrator at paragraphs 43-46 noted that whilst the Appellant’s emotional reaction to the events at work on 18 October 1999 contributed to the Appellant’s injury, those events in his considered opinion were not a substantial contributing factor to the onset of the Appellant’s alleged condition.”

  1. The Respondent Employer goes on to submit the following:

    “In this regard, although the Appellant in relation to this appeal suggests that ‘injury need only be one of multiple causes and does not need to be substantial’, despite incorrectly referring to the connection between injury and incapacity, it is the Respondent’s submission that this assessment is imprecise based on the current case law. In particular, it is noted that in the Court of Appeal decision of Mercer v ANZ Banking Group Pty Ltd (2000) 48 NSWLR 740, Mason P agreed with the trial judge, Burke J, that ‘substantial’ meant more than minimal but noted that the construction of Section 9A left ‘a broad area within which the personal judgment of the individual judge as to what is ‘substantial’ may be ‘determinative’. Further, in the matter of Harpur v State Rail Authority (NSW) (2000) 19 NSWCCR 256 at 268, Burke J stated that the word substantial was a guide to the decision maker. His Honour further stated that ‘the determination whether employment among a number of factors is substantial is not to be made mathematically nor by substitution of synonyms for ‘substantial’ but as a matter of impression.”

    Following these authorities, the Respondent Employer submits that the Arbitrator exercised his personal judgment based upon the medical material before him and concluded that the work incident in October 1999 was not substantially related to the onset of the Appellant’s injury, but that his marital concerns were a more prevailing cause of his psychological complaints at that time.  Having established that there was no substantial work related injury arising from the incident in October 1999, it is submitted that the Arbitrator was at liberty to find that the Appellant’s response to the proposed transfer to another work location in 2002, was not compensable on the basis of the provisions of section 11A of the 1987 Act, in relation to reasonable action taken by the Respondent Employer in implementing that transfer.  The submission concludes:

“Further, the Arbitrator at paragraph 47 rightly concludes that even if it is found that there is a work related injury caused or aggravated in July 2002, the application of Section 11A of the Act precludes the Appellant from succeeding, as there was no factual or oral evidence offered by the Appellant to suggest that the employer’s action in offering him a transfer in keeping with his desire to work 8 hour shifts as opposed to 12 hour shifts was unreasonable.”

EVIDENCE

The Facts

  1. The events that took place on 18 October, 1999, when the Appellant Worker was required, during the course of his duties, to deal with a male person who was armed with a gun, are not disputed.  There is no dispute that the Appellant Worker was confronted with and was attempting to deal with marital problems around that time, and since then, although the precise date of commencement and the duration of these difficulties, is not entirely clear.  There is no dispute that the Appellant Worker was transferred to the Zetland Police Complex (‘Zetland’) early in 2001, as he did not wish to meet the new requirement to work twelve-hour shifts.  It is not disputed that in due course, a decision was made to transfer him to the Office of the DPP in the City of Sydney, where he was to work shifts of eight hours’ duration.  This was done because the requirement to work shifts of twelve hours’ duration was to be introduced at Zetland.  There is no dispute that the Appellant Worker did not wish to transfer to the DPP in the City where he would be required to deal with the public.  He became distressed at this prospect and consulted his family doctor, Dr Johnson who gave him a medical certificate to cover his absence from duty until 7 August, 2002.  A series of medical certificates was issued subsequent to this.  The Arbitrator observed at paragraph 30 of his Statement of Reasons for Decision that “Dr Johnson stated in the certificate that the Applicant was suffering a post traumatic stress disorder, relating back to [sic] earlier incident, which he noted took place in October 2000 [rather than 18 October 1999].”   The brief details of events are set out in paragraph 4, above.  There is no dispute that he did not notify the Respondent Employer formally of any injury that he claimed to have suffered as a result of any of these events, until 8 July, 2002, which was at the time of his transfer to the DPP.  However, he did notify the Respondent Employer of the incident that took place on 18 October, 1999, an investigation was carried out, and he received a commendation in due course.  The claim that he suffered a psychological injury at work as a result of the incident on that day is disputed, and the Respondent Employer has denied liability.

Evidence of the Appellant Worker and Mrs Tina Bennett, his Wife

  1. While the Respondent Employer now seeks to challenge the existence of general symptoms described by the Appellant Worker, these were not specifically in dispute in the matter before the Arbitrator.  However, “medical” issues were in dispute.  As I have stated already, there is a lack of clarity in the submissions and proceedings before the Arbitrator regarding the distinction between symptoms as described by the Appellant Worker, medical condition and its cause, and injury.  Nevertheless, it is clear that his claimed injury and his condition as alleged, are disputed.  I accept the Appellant Worker’s own account and the evidence of Mrs Bennett as outlined in her statement, insofar as this is an account of their observations of symptoms displayed and/or apparently experienced by the Appellant Worker.  However, these observations cannot be regarded as diagnostic in nature.  Nor are they determinative.  They must be weighed in the context of the medical and other evidence that was before the Arbitrator and is before me in this appeal. 

Medical Evidence

  1. Dr Harry Johnson.  Dr Harry Johnson, the Appellant Worker’s nominated treating doctor, issued a series of medical certificates stating that the Appellant Worker was suffering from a post traumatic stress disorder.  In the first of these, dated 8 July, 2002, Dr Johnson stated the Appellant Worker required counselling and “suitable duties no client contact until better”, and certifying that he was unfit for work from that date until 22 July, 2002.  Also in that document Dr Johnson commented as to how the injury occurred: “Arrested a person that was armed with a gun.  He felt that this person was going to kill him.  He indicated that he had a gun.  He restrained the person in a chair until back up arrived.” 

  1. Aphrodite Kyriakou.  Consultant Psychologist and Psychotherapist Aphrodite Kyriakou wrote to Dr Johnson on 9 September, 2002.  She reported that the Appellant Worker: 

“currently presents with some significantly negative mood symptomatology.  It is considered likely that at the time he initially ceased work, his symptomatology may have been of sufficient severity to warrant the diagnosis of Post Traumatic Stress Disorder.  The Depressive Anxiety Stress Scale (DASSS21) results suggest that Mr Bennett’s current level of Depression is ‘moderate’, Anxiety is ‘moderate’ and Stress symptoms are in the ‘moderate’ range.

Mr Bennett reported a symptom pattern including: low moods, weight loss, sleep difficulty, difficulty concentrating, agitation, fear & somatic anxiety symptoms (i.e. panic attacks, sweating, heart pounding).  As well as this, cognitive symptoms of shame, helplessness, decreased self-confidence and a decrease in pleasure and enjoyment.  Behaviourally, Mr Bennett has socially withdrawn himself, fears going back to work…, has avoidance symptoms, and symptoms of agoraphobia.  Mr Bennett also reports hyper-vigilance and intrusive dreams.”

Ms Kyriakou expressed the view that the Appellant Worker had been traumatized by the events of 18 October, 1999 and had internalised a subjectively experienced trauma response with delayed onset leaving him with cognitive, physical and behavioural deficits.  She said that he was open to investigating options toward recovery and that she was waiting on his insurer to approve counselling.  They said that he needed at least 10-20 sessions of “CBT” treatment in the interim to address new coping skills that would assist his gradual return to work and help alleviate his mood disorder and “PTSD” symptomatology.

  1. Ms Kyriakou provided a further, detailed report dated 27 May, 2003 that was “...an assessment of Mr Bennett’s current psychological status and possible prognosis of sustained disabilities in relation to a work related incident of 18.10.1999 and one on the 10.3.03.”  She said that at the initial consultation with the Appellant Worker, she had suggested that he might consider a further independent assessment with a forensic psychologist, if required.  In summary, Ms Kyriakou said:

·     The Appellant Worker reported that on 7 July, 2002, the night before he was to take up at the DPP he became overwhelmed with fear of dealing with the public, as he would be very exposed and vulnerable to attack in that location.

·     The Appellant Worker related again to her the details of his experience of 18 October, 1999, including the fact that an armed person with whom he had the encounter had committed a murder earlier in the day.

·     Following that event, he said that he had not been debriefed or offered counselling, but discussed the events with his wife that night.  He was congratulated two days later by the Commissioner of Police and the Deputy Commissioner.

·     The Appellant Worker informed her that since that incident he was “depressed on and off”, woke up with nightmares, experienced night sweats, had become socially withdrawn, felt detached and had experienced problems in his relationship with his wife.  He further informed Ms Kyriakou that he could not get the incident out of his mind.

·     The Appellant Worker had experienced a number of life stressors and events from March, 1995.  They were:

-     March, 1995 – Mother passed away, having been diagnosed with bowel cancer in 1993

-November, 1996 – foot run over by a Police vehicle

-December, 1996 – Almost run over by a vehicle which had gone through a red light and struck a pedestrian in front of him

-     March, 1997 – Observed shots being fired in Hyde Park

-February, 1998 – Married

-     December, 1998 – Arrested a violent offender

-     January, 1999 – pursued and arrested two offenders in a stolen vehicle while off duty

-     February, 1999 – His son Brett was born

-     June, 1999 – Took four weeks annual leave because of his wife’s postnatal depression.  Brett stopped breathing and almost died

-     18 October, 1999 – The firearms incident at Police Headquarters

-     March, 2000 – Incident involving male person who had made threats against the Police

-     May, 2000 – Brother diagnosed with schizophrenia

-     January, 2001 – Transferred to Zetland due to introduction of 12 hour shifts

-     August, 2001 – Crisis team came to the house as brother involuntarily “scheduled”

-     October, 2001 – Grandfather passed away

-     8 July, 2002 – Was to be transferred to DPP and experienced panic attacks on the night before.

  1. Other aspects that the Appellant Worker spoke of were his reluctance to attend at a public counter, his marital problems during 2001 to 2002 and attendance at marriage counselling, the overwhelming emotional reaction at the prospect of being transferred to the DPP, and his wife becoming involved with another man.  On 10 March, 2003 after returning to work a constable was stabbed at the front counter whereupon his experience of 18 October, 1999 came back to him and he needed to be debriefed by the Police Psychologist.  He did say that he felt supported by his supervisors and peers at that time.  Ms Kyriakou listed a range of presenting symptoms that were derived from the Appellant Worker and from his responses during various tests that were conducted.  In terms of her diagnosis Ms Kyriakou stated that the presenting history, findings and background information of the clinical examination of 12 July, 2002 point to a diagnosis of Post Traumatic Stress Disorder with delayed onset as the principal diagnosis, as well as underlying depression.  She observed that:

“The incident of the 18th October 1999 was experienced as dangerous and threatening to Mr Bennett’s life, where he subjectively perceived the event as potentially harmful, not only to himself but to others at Police Headquarters.  He subsequently developed a mood disorder and a range of Post Traumatic Stress symptoms essentially resulting from exposure to this trauma.  Regardless of any pre-existing stressors in his life that may have impinged upon his experience of his sense of control or safety in the world, there is no doubt that his exposure to this trauma was experienced as life threatening.  Any prior marital disharmony alone would not substantiate the pattern of symptoms that Mr Bennett presented with the night before going to a new work environment on the 8th July 2002.”

  1. The prognosis was favourable and the Appellant Worker perceived that his move to Government House provided a safe environment in which to work during his rehabilitation.

  1. Meg Campbell-Dowling and Rod Gutierrez, Stress Solutions - Injury Management.

    This report dated 18 August, 2002 is quite comprehensive and includes summaries of interviews with the Appellant Worker, Acting Senior Sergeant Sankey, Inspector Philip Higgins, Special Constable Lynne Clarke and Dr Harry Johnson.  According to the report, attempts were made to contact Aphrodite Kyriakou, without success.  The report of the interview with the Appellant Worker is substantially consistent with his evidence, except relevantly, that he stated that he did not think that he was having problems arising from the incident of 18 October, 1999 until his panic attack on 7 July, 2002.  Acting Senior Sergeant Sankey, the Appellant Worker’s supervisor for a period of approximately one year up to the date of the interview on 15 August, 2002.  He was aware of the incident in October, 1999 but said that he had “no knowledge of Mr Bennett’s symptoms until recently, when we were brought to understand the impact that they were having on him.”  He rated the Appellant Worker’s work performance as “outstanding”.  Inspector  Philip Higgins was not aware of the incident in October, 1999, until the workers compensation claim was made.  According to the report, Inspector Higgins made the following comments in terms of his own observations:

“I stated to Michael Bennett he was a good operator and I would not want to lose him, when he made the comment about having to look for another job.  From my perspective, it’s interesting that he is off sick when he is supposed to move locations.  Additionally, he did not ask for the move to Zetland and seemed quite happy when he was working at Head Quarters [sic].  The times I saw him at Head Quarters [sic] he never appeared distressed.  I can only give a limited assessment, as I had a certain amount of exposure to him in the workplace, over a ten month period, but he seemed happy in the workplace.  I was in contact with him between February 2000 when I commenced with the Branch and January 2001 when Mr Bennett was moved to Zetland.  As the issue of 12 hour shifts took 12 months to resolve, Michael Bennett was certainly in a ‘comfort zone’ at Zetland.  I did not see any outward signs of distress, by Michael Bennett, through him dealing with members of the public.  Given that Michael Bennett is off work with an illness at the time he is suppose [sic] to move to a location where he did not want to go, may be coincidental.  It needs to be borne in mind, that he is a Security Officer. He guards Offices and doorways…”  He then goes on to comment and speculate on the incident of 18 October, 1999, which he did not witness, personally.      

  1. Special Constable Lynne Clarke said that she was a co-worker of the Appellant Worker and a Peer Support Officer.  She said that she was not on the shift at the time of the incident on 18 October, 1999.  She said “Michael is normally a quiet person, perhaps we haven’t picked up on any problems that he had.  He is quiet and professional and goes about his duties.”  She went on to say: 

“I did speak with him one night, before he went off work in July 2002, when he was working at Zetland.  He had become quiet and withdrawn.  Michael said to me he did not want to go out and that there were things at home that he did not want to be involved with, but he did not elaborate on what these issues were.  He stated that his wife was not home much and that he was home by himself.  Michael had withdrawn more and more into himself and was now not the same person.  He appeared withdrawn, his voice would quaver and his breathing was faster.  For instance he appeared to have more breaths per minute.  When speaking with Michael he sounds withdrawn.  I have been mainly involved with Michael since he has been off work in July 2002 and have had contact with him approximately three to four times per week in this period.”

  1. The summary of the interview with Dr Harry Johnson, the Appellant Worker’s treating doctor, states:

“I have been Michael Bennett’s General Practitioner for approximately five years.  He first consulted with me on 8 July 2002, in relation to his workplace issues.  I don’t recall seeing Michael Bennett before that time in regard to work related incidents.  He does not consult with me very often.

On 8 July 2002, Michael Bennett gave me a history of what had been effecting [sic] him and he stated he had to arrest somebody in relation to his work.  I have not placed him on any medication and he is not on any medication, as far as I am aware, although I do not have my notes with me at this current location.

The symptoms that Mr Bennett presented with on 8 July 2002, were that he was anxious, he appeared to be depressed, stressed and this was having an effect[sic] on his marriage. I believe he is suffering from post traumatic stress problems and is in need of intense counselling.  What he reports experiencing, he also reports has had a profound effect [sic] on his marriage.  He stated that his initial claim was declined and he was not able to continue with counselling, because he had to pay for that himself.

I have given a provisional working diagnosis of Post Traumatic Stress Disorder to Mr Bennett.”

  1. The report indicates that the Appellant Worker presented as an individual who was gaunt in the face and had difficulty making eye contact.  He wept openly as he spoke of the incident of 18 October, 1999 and the thought that he may have never seen his family again.  He said that he did not believe he was having any problems regarding the incident in October, 1999, until Sunday 7 July, 2002, when he had a panic attack and an overwhelming sense of fear.  He attended his own doctor as a consequence, reporting symptoms including increased breathing, increased heart rate, difficulty sleeping, sweating and shaking.  He said that since 7 July, 2002 he experiences disturbed sleep, weight decrease, poor memory, inability to relax, intermittent diarrhoea for a period of one year to date, headaches, anxiety when going out in public, social withdrawal and irritability.  He spoke of his marital problems and the fact that his wife threatened to leave him in March, 2002.  Mrs Bennett accompanied him to the appointment with Stress Solutions.

  1. At the time of the assessment, it was concluded that the Appellant Worker “was suffering from a clinically significant condition, Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-IV, American Psychiatric Association 1994).  Additionally, Mr Bennett reported experiences which indicate he has experienced some sub-clinical Post Traumatic Stress symptoms in the past.”   The report goes on to say: 

“Mr Bennett has submitted this claim in July 2002, following his experiencing severe panic like symptoms the night before being moved to a new workplace location.  Mr Bennett has stated that he now believes the reason for his current psychological distress is due to the impact of an incident he was involved in, in October 1999.  However, Mr Bennett himself did state that he did not feel the October 1999 incident had affected him and he did not connect his becoming socially withdrawn over a period of approximately 12 months, to the October 1999, until he consulted his doctor on 8 July 2002.”

It was further observed that:

·     He had less than one week off work following the incident on 18 October, 1999.

·     He reported experiencing nightmares commencing some weeks after the incident and recurring at various intervals since then, from time to time.

·     He has not consulted with any health practitioners regarding his reported symptoms, therefore, for the period between October, 1999 and the submission of his claim in July, 2002 there is no supporting information from treating practitioners.

·     If he was experiencing difficulties between October, 1999 and July 2002 he has not sought medical assistance nor assistance from his supervisors.  His supervisors have observed him to perform his duties and to function well in the workplace during the years 2000 and 2001.

·     He was distressed at the time of the assessment but it is difficult to reconcile that he did not request a move from the location where the incident occurred in October, 1999 and did not seek assistance.  He remained at the location at Police Headquarters until he was moved to Zetland when he indicated that he did not wish to work 12 hour shifts and had nothing to do with his psychological state or the incident that had occurred.

·     He was recently informed that he was to be transferred to the DPP in order to accommodate his wish not to work 12 hour shifts.  His response was that he would need to obtain other employment.

·     Although he is suffering distress currently, it is difficult to establish the link between the October, 1999 incident and the present level of distress.  This observation is made having regard to the facts that the Appellant Worker has been able to fulfil his workplace responsibilities in an outstanding manner, he has not sought treatment and has not sought workplace assistance or transfers.

·     It would appear that his condition has arisen as a direct result of his transfer to the DPP.

·     Twelve sessions of cognitive behaviour therapy are required to instruct him in stress management techniques, relaxation as well as depression management, and injury management/rehabilitation recommendations were outlined.

  1. Dr Robert Lewin, Psychiatrist

    Dr Lewin provided reports dated 9 December, 2002, 25 February, 2003 and 12 March, 2003.  The report of 9 December, 2002 is comprehensive and traversed in some detail, the Appellant Worker’s reported symptoms and events over a period of time.  Dr Lewin’s diagnosis included the following:

·It is possible that his emotional symptoms “at that stage” were related to the events of 18 October, 1999.

·He indicated that he developed a range of acute symptoms the night before his assignment to the DPP was to commence.

·It would be prudent for the general practitioner to review his complaints to exclude relevant, physical conditions.

·In the context of the recent marital crisis his symptoms have worsened once again.

·An Adjustment Disorder was diagnosed, noting hyperventilation symptoms, other bodily symptoms of anxiety and mild depressive symptoms.

·It was concluded that his condition is not a Post Traumatic Stress Disorder.  “The quality of the stressor and the pattern of his persisting symptoms would not satisfy diagnostic criteria regarding that particular condition.  Mr. Bennett has some post traumatic symptoms of anxiety, but his condition is of a much more mild nature.”

·“There are several significant contributing factors.  These include his emotional reaction to the requirement to move to the office of the DPP on 8/7/2002, and his emotional reaction to the events of 18/10/1999.  A recent increase in the intensity of symptoms appears to derive directly from marital distress.  I found no evidence of any pre-existing psychiatric illness and there was no history of prior trauma relevant to Mr Bennett’s current condition.”

·The Appellant Worker’s current level of anxiety and depressive symptoms appear to be partly a reflection of the difficulties in the workplace but essentially are a response to the current marital crisis.  “These difficulties will need to be addressed.  It is likely that once Mr Bennett finds a clear direction in regard to returning to work, that his overall level of distress will diminish.”

Other Evidence

  1. As indicated at paragraph 12 above, the other evidence that was before the Arbitrator in the proceedings before him is before me in this appeal, in addition to a copy of the transcript of the proceedings on 13 June, 2003.  All of this is taken into account in this appeal.

FINDINGS AND DISCUSSION

Evidence of Appellant Worker and Mrs Tina Bennett concerning symptoms

  1. This issue has been dealt with and I confirm my observations and findings at paragraph 43, above.

Whether the Arbitrator took into account the report of Aphrodite Kyriakou

  1. The Arbitrator did take into account the reports of Aphrodite Kyriakou, Consultant Psychologist and Psychotherapist (see paragraphs 19, 31, 32 and 33), but to what extent it is difficult to say at first glance, as there is no specific reference to the documentation provided by Aphrodite Kyriakou in what follows after the heading ‘Decision’ in his Statement of Reasons for Decision. The extent that the Arbitrator weighed up this evidence against other evidence ought to have been more clearly stated by him, and it should not be left to the parties to draw inferences or their own conclusions, no matter how obvious these may be from a reading of the Statement of Reasons for Decision in the context of their own knowledge of the contents of the documents that are in evidence. The Arbitrator did, however, state his reasons for adopting the report of Dr Lewin. Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’) sets out requirements to be met in relation to reasons referred to in section 294(2) of the 1998 Act. Reasons for the decision, the consideration of the law including relevant Rules and Practice Directions, and other relevant matters that have been taken into account should be evident (Absolon v NSW TAFE [1999] NSWCA 311). Having regard to the detail of medical evidence before him, the Arbitrator’s reasons ought to have been more fulsome. However, they are adequate in my view.

Medical evidence; incident of 18 October, 1999; marital disharmony; transfer in July, 2002; substantial contributing factor

  1. Dr Harry Johnson, the treating doctor issued a series of medical certificates on the basis of his diagnosis that the Appellant Worker was suffering from a post traumatic stress disorder.  The first of the medical certificates is dated 8 July, 2002, the day on which the Appellant Worker was due to commence work at the DPP, nearly three years after the incident on 18 October, 1999.  Dr Johnson subsequently told Stress Solutions – Injury Management, that  8 July, 2002 was the first time that the Appellant Worker had consulted him in relation to workplace issues and that “he does not consult with me very often.”    He said that the Appellant Worker had revealed the history of what had been affecting him, including the fact that he was required to arrest someone [the incident of 18 October, 1999].  Dr Johnson stated that he had given a provisional working diagnosis of post traumatic stress disorder, but had prescribed no medication. 

  1. There is no evidence that the Appellant Worker consulted with or received any treatment from any medical practitioner following the events of 18 October, 1999, prior to his visit to Dr Johnson on 8 July, 2002, notwithstanding the claimed presence of severe and ongoing difficulties, supported by the statement of Mrs Tina Bennett. 

  1. On 9 September, 2002 Aphrodite Kyriakou reported that at the time that the Appellant Worker finished work [in July, 2002] “it is considered likely that...his symptomatology may have been of sufficient severity to warrant the diagnosis of Post Traumatic Stress Disorder.  The Depressive Anxiety Stress Scale (DASSS21) results suggest that Mr Bennett’s current level of Depression is ‘moderate’, Anxiety is ‘moderate’ and Stress symptoms are in the ‘moderate’ range.”  She expressed the view that the Appellant Worker had been traumatized by the events of 18 October, 1999 and had internalised a subjectively experienced trauma response with delayed onset leaving him with cognitive, physical and behavioural defects.  She said that she suggested to him that he might consider further independent assessment with a forensic psychologist, if required.  There is no evidence that the Appellant Worker followed up on this suggestion.  As outlined at paragraph 47, above, Ms Kyriakou attributed his condition to the incident of 18 October, 1999 and dismissed any prior marital disharmony as the cause of the symptoms that the Appellant Worker displayed on the night before he was due to transfer to the DPP. 

  1. The Stress Solutions report revealed that the Appellant Worker informed them that he did not believe that he was having any problems regarding the incident in October, 1999, until Sunday 7 July, 2002, when he had a panic attack and an overwhelming sense of fear.  Symptoms that presented since that date were detailed in the report.  He said that he did not connect the incident of 18 October, 1999 to becoming socially withdrawn over the previous twelve months, until he consulted Dr Johnson on 8 July, 2002.  However, both the Appellant Worker and his wife have given evidence that he has been suffering severe and ongoing difficulties following the incident on 18 October, 1999.  This is not consistent with the information that he gave to Stress Solutions.  I note that it was also pointed out that there is no supporting information from treating doctors prior to July, 2002 and no evidence that he sought any assistance.   The Appellant Worker has given no reason why he did not seek medical and other assistance in the considerable period between 18 October, 1999 and 8 July, 2003, notwithstanding the significant problems and ongoing suffering that he describes.  Having regard to his account, it is inconceivable that he would not seek assistance of some kind unless the extent of his difficulties were relatively minor and that he considered that he did not require assistance.      

  1. Stress Solutions also interviewed two supervisors and one work colleague, as previously described.  Each gave indications of the Appellant Worker’s strong performance at work and that he gave no indication that anything was wrong for the whole of that period, until he was due to be transferred to the DPP.  Indeed, he continued to work at the location where the incident of 18 October, 1999 took place for some time and transferred from that location only because he did not wish to work twelve hour shifts.  He took two rostered days off work following that incident and returned to work without seeking medical help, requiring further time off, or requesting any kind of support or assistance from the Respondent Employer.  They said that he continued to deal with members of the public without any apparent discomfort.  This evidence too, is substantially inconsistent with the evidence of the Appellant Worker and Mrs Tina Bennett, his wife.  I note further that Stress Solutions reported that the Appellant Worker was distressed at the time of the assessment, but that it is difficult to establish the link between the October 1999 incident and the current level of distress.  The opinion is expressed that his condition has arisen as a direct result of his transfer to the DPP.  

  1. Dr Lewin indicated that it was possible that the Appellant Worker’s emotional symptoms

    at that stage, related to the events of 18 October, 1999.  However, Dr Lewin discounted a Post Traumatic Stress Disorder and diagnosed an Adjustment Disorder, saying that some post traumatic symptoms of anxiety were present, but that the condition of the Appellant Worker is of a much more mild nature.  He attributed the increase in the intensity of symptoms to derive directly from marital stress.  He reported that the Appellant Worker told him that he developed a range of acute symptoms the night before his assignment to the DPP was to commence and that his symptoms had worsened in the context of his marital crisis.  In his letter of 25 February, 2003 he said that the pattern of bodily symptoms or arousal and avoidance symptoms that were reported by the Appellant Worker could reasonably be related, in part, to some reactive anxiety arising in October 1999. 

  1. The various views and diagnoses expressed in the medical evidence were derived following consultation with the Appellant Worker, an examination of his medical condition and observations of him and his symptoms.  The evidence of Stress Solutions and Dr Lewin, Psychiatrist is quite probing, detailed and well supported.  On balance, that evidence is to be preferred to the provisional working diagnosis of Dr Johnson, the treating doctor, and the conclusion reached by Aphrodite Kyriakou that his condition at that time was indicative of a post traumatic stress disorder arising from the incident on 18 October, 1999, and that had manifested some three years later, but also suggesting that further independent assessment with a forensic psychologist would be useful, if required. 

  1. The three incidents that emerge in this matter are the incident on 18 October, 1999, the marital difficulties and the transfer to the DPP, which was to take place on 8 July, 2003.  Dr Lewin said that it was “possible” that the incident of 18 October, 1999 could have been one of the factors contributing to his condition.  He and Stress Solutions were much more certain that the Appellant Worker was suffering from an Adjustment Disorder, and not Post Traumatic Stress Disorder, attributed to his marital problems and the transfer to the DPP.  There is little doubt that the prospect of the transfer to the DPP caused a good deal of stress to the Appellant Worker, however, section 11A(1) of the 1987 Act precludes a successful claim against the Respondent Employer on this basis.  Having regard to the evidence, I agree with the Arbitrator’s conclusion on this issue.

  1. There is clear evidence to substantiate the fact that the marital difficulties being experienced by the Appellant Worker over a considerable period of time were a significant cause of stress and contributed to his condition.  A consideration of the evidence suggests, on balance, that the marital problems are not the result of the incident on 18 October, 1999, which itself may have caused some level of anxiety, but which did not cause post traumatic stress disorder or other demonstrable injury.  This is borne out by the assessments made by Stress Solutions and Dr Lewin, following their examinations of and close consultation with the Appellant Worker. 

  1. Section 9A(1) of the 1987 Act provides that no compensation is payable in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.  

The evidence provided by his colleagues, his strong work performance and his conduct at work (including no apparent discomfort in dealing with members of the public) following the incident of 18 October, 1999 is indicative that the Appellant Worker was not unduly traumatised by that incident.  Moreover, he sought no medical assistance for nearly three years, coinciding with his transfer to the DPP, an event that he found stressful in itself.  Again, he did not seek any counselling or assistance from his employer and as stated, he continued to work effectively for some time after the incident of 18 October, 1999, until he transferred for an entirely unrelated reason that suited his own convenience.

  1. In Dayton v Coles Supermarkets Pty Limited [2001] NSWCA 153, Meagher J said “this word [substantial] is a plain English word which is understood by anyone who is not a judge.”  In essence, ‘substantial’ must be given its usual meaning.  It is more than simply arising out of employment (Mercer v ANZ Banking Group [2000] NSW CA 138; section 9A(3)(a) of the 1987 Act).  The employment must be a substantial contributing factor to the event causing the injury or to the receipt of injury (Rootsey v Tiger Nominees Pty Ltd [2002] 23 NSWCCR 725 per Neilson J at 733). Having regard to the whole of the evidence as to the events that followed the incident on 18 October, 1999 and the medical evidence, I am unable to conclude that the Arbitrator erred in finding that the Appellant Worker did not suffer an injury to which his employment was a substantial contributing factor within the meaning of section 9A of the 1987 Act, whatever his state of mind may have been at that time.

  1. On a close consideration of the whole of the evidence, it is my view that the Arbitrator made no fatal error of fact, law or discretion, and that he arrived at the correct conclusion with which I agree, on the evidence that was before him. 

DECISION

  1. The decision of the Arbitrator is confirmed.

COSTS

  1. No order is made as to costs.

Gary Byron

Deputy President  23 March, 2004

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

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Cases Cited

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Suttor v Gundowda Pty Ltd [1950] HCA 35
Litynski v Albion Steel Pty Ltd [1994] NSWCA 186
Coulton v Holcombe [1986] HCA 33