Nguyen v Force One Security Services Pty Limited

[2008] NSWWCCPD 19

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Nguyen v Force One Security Services Pty Limited NSWWCCPD 19

APPELLANT:  Le Xuan Ninh Nguyen 

RESPONDENT:  Force One Security Services Pty Limited

INSURER:CGU Insurance Limited.

FILE NUMBER:  WCC5348-07

DATE OF ARBITRATOR’S DECISION:          21 September 2007

DATE OF APPEAL DECISION:  14 February 2008

SUBJECT MATTER OF DECISION:                Injury; incapacity; whether psychological injury proved; whether the evidence supported a finding of continuing incapacity.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant:      Self represented

Respondent:   TurksLegal

ORDERS MADE ON APPEAL:  1.         The decision of the Arbitrator dated 21 September 2007 is revoked and the following orders are made in substitution:

(1)There is an award for the Applicant with respect to his claim for section 66 of the Workers Compensation Act 1987 whole person impairment with reference to the cervical spine.

(2)The claim of the Applicant for section 66 of the Workers Compensation Act 1987 whole person impairment from date of injury of 16 March 2006 is referable by the Registrar to an ‘Approved Medical Specialist’. The body part referred is the cervical spine for the purposes of that assessment.

(3)There is an award for the Applicant with respect to his claim for section 60 of the Workers Compensation Act 1987 medical and treatment expenses upon production of accounts and/or receipts.

(4)The Respondent to pay the Applicant’s costs as agreed or assessed.

2.The matter is remitted to another

Arbitrator for redetermination of all outstanding issues in accordance with these reasons noting the following findings:

(a)       Mr Nguyen is entitled to

weekly compensation for the period 16 March 2006 to 23 March 2006 pursuant to section 36 of the Workers Compensation Act 1987 Act (with credit to the Respondent if payment has already been made).

(b)       Mr Nguyen has suffered a

psychological injury as a consequence of the incident on 16 March 2006, and any claim for whole person impairment consequent upon that finding should be referred by the Registrar to an ‘Approved Medical Specialist’.

(c)       The Arbitrator’s findings on

the issue of incapacity during the period 23 March 2006 to 20 June 2006 are confirmed.

(d)      The question of incapacity

subsequent to 20 June 2006 to be determined in accordance with these reasons.

3.The Respondent is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

1.On 19 October 2007 Le Xuan Ninh Nguyen (‘the Appellant/Mr Nguyen’) sought leave to bring an ‘Appeal Against Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 21 September 2007.

2.The Respondent to the Appeal is Force One Security Services Pty Limited (‘the Respondent).

3.Mr Nguyen is 27 years old. He commenced employment with the Respondent on 19 January 2006 as a Static Security Guard and was deployed to various commercial locations around Sydney.

4.Mr Nguyen claimed that on 16 March 2006 whilst travelling to the Respondent’s premises at Chipping Norton he was assaulted by two men when he stopped in Bonnyrigg Heights to purchase a drink. He was due to commence employment at premises at Wetherill Park on that day and was required to attend the Respondent’s office to collect the keys to those premises.

5.The assault apparently took place at approximately 1:00pm, and Mr Nguyen was due to commence employment, according to the Respondent, at 2:45pm.

6.The police attended the scene and Mr Nguyen was taken by ambulance to Fairfield Hospital where he was treated for various injuries. Mr Nguyen provided a statement to the police.

7.He was discharged from Fairfield Hospital later that day and subsequently attended his general practitioner Dr Le at Cabramatta. Mr Nguyen remained off work for one week and then resumed his usual duties with the Respondent.

8.He eventually ceased work with the Respondent on 27 May 2006. The Respondent claimed that Mr Nguyen was dismissed following a complaint about him from the management of one of the Respondent’s customers about him sexually harassing a female staff member at those premises.

9.This is disputed by Mr Nguyen.

10.Following cessation of employment with the Respondent, Mr Nguyen then obtained employment as a forklift driver at Adecco Pty Limited shortly thereafter until ceasing with that company on or about 20 June 2006.

11.Mr Nguyen has not returned to employment since that time.

12.Mr Nguyen notified his employer of the incident on 16 March 2006 on that day. He made a claim for compensation with the Respondent’s insurer, CGU Insurance Limited (‘CGU’) on 31 October 2006.

13.By letter dated 31 October 2006 from CGU to Mr Nguyen, CGU advised that liability was declined because “[the] injury was not reported to [the] employer within two months”.

14.On 17 July 2007 M Nguyen filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 16 March 2006 together with lump sum compensation pursuant to the provisions of sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

15.In its Reply filed on 8 August 2007, the Respondent disputed, inter alia, whether Mr Nguyen sustained an injury within the meaning of sections 4 and 10 of the 1987 Act.

16.The parties attended a conciliation/arbitration hearing on 12 September 2007. No oral evidence was given, but both parties’ submissions are recorded in the transcript of that date.

17.Briefly, the Arbitrator found against Mr Nguyen in respect of his claim for compensation for psychological injury. His claim for weekly benefits in relation to injuries sustained in the assault of 16 March 2006 was also rejected.

18.It is from this decision that Mr Nguyen seeks leave to appeal.

19.In a ‘Notice of Opposition to Appeal’ filed on 17 December 2007, the Respondent submits that Mr Nguyen has failed to adequately identify the grounds on which the appeal is based and that Mr Nguyen’s “… written submissions appear to be a statement of the facts surrounding the alleged incident on 16 March 2006 and subsequent events”.

20.In the Respondent’s submission, “there is no legal basis for the appeal and no factual basis. The Applicant merely does not agree with the Arbitrator’s acceptance of certain facts over others”.

THE DECISION UNDER REVIEW

21.The ‘Certificate of Determination’  dated 21 September 2007 records the Arbitrator’s

determination as follows:

“1.      The Applicant’s claim for weekly benefits is dismissed.

2.There is an Award for the Applicant with respect to his claim for s.66 whole person impairment with reference singularly to the physical injury of the cervical spine.

3.The claim of the Applicant for s.66 whole person impairment for physical injury from date of injury of 16 March 2006 is referable by the Registrar to an ‘Approved Medical Specialist’. The body part referred, for the reasons given, is singularly that of cervical spine, for the purposes of that assessment.

4.There is an Award for the Applicant with respect to his claim for s.60 medical and treatment expenses, in the terms as determined above, upon production of accounts and/or receipts.

5.The Respondent is to pay the Applicant’s costs as agreed or assessed.”

22.A ‘Statement of Reasons’ accompanied the Arbitrator’s determination.

LEAVE TO APPEAL

23.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 Act (‘the 1998 Act’).

24.The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.

25.Leave to appeal is granted

ON THE PAPERS REVIEW

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

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

27.Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard to Practice Direction No’s 1 and 6, the documents that are before me, and the detailed submissions by both parties on appeal, 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.

THE ISSUES IN DISPUTE

28.Mr Nguyen is self represented on appeal, but was represented by a solicitor and counsel at the hearing before the Arbitrator. Annexed to his appeal application are six pages of handwritten notes from Mr Nguyen. Two pages of handwritten notes are attached to the Respondent’s ‘Notice of Opposition’, and Mr Nguyen has also attached five pages of handwritten notes to the transcript.

29.These notes are not easy to read or decipher, Mr Nguyen’s command of English being somewhat limited.

30.Whilst I agree to some extent with the Respondent’s complain that Mr Nguyen’s submissions fail to adequately address the grounds on which the appeal is based, and appear to challenge the entirety of the Arbitrator’s determination, I am obliged to consider the provisions of section 354 of the 1998 Act with regard to procedure before the Commission. I am also mindful of the provisions of section 350(2) which provides as follows:

“(2)     A decision of or proceeding before the Commission is not:

(a)   to be vitiated because of any informality or want of form …”

31.Most of the ‘submissions’ contained in the six pages annexed to Mr Nguyen’s appeal application are indeed no more than a statement of facts surrounding the incident on 16 March 2006 and subsequent events but his conclusions seem to reflect a claim that the Arbitrator erred in failing to award him weekly benefits of compensation. The thrust of Mr Nguyen’s submissions are to the effect that as a consequence of medication prescribed by both his treating psychiatrist and other doctors he is unable to “… handle heavy jobs for long”.

32.Whilst Mr Nguyen appears to challenge much of the Arbitrator’s findings and reasons, it is clear from his notation next to paragraph 46 of the Arbitrator’s Statement of Reasons the basis for his appeal. At paragraph 46, the Arbitrator concluded: “I am distinctly not satisfied that this element of claim [incapacity] is made out and it is dismissed”. Mr Nguyen has stated:

“I’am [sic] not agree – I has [sic] fresh evidences [sic]. I elected to appeal against a decision of the Commission constituted by Arbitrator about my weekly benefits please!”

33.The two pages of ‘submissions’ Mr Nguyen has attached to the Respondent’s ‘Notice of Opposition’ are no more than a criticism by him of his perceived treatment by the Respondent. For example, he states as follows:

“Your Honour! You must do something don’t let them mess around with you! And to let them understand which’s mean advantages and disadvantages! Knock your hammer give them a lesson! Their degrees of guiltiness’s enumerate at below…”

[I have not attempted, in quoting here and further below from Mr Nguyen’s submissions, to in any way edit or summarise his submissions].

34.Mr Nguyen then set out five points of complaint about the Respondent’s behaviour including “attempted to mislead Arbitrator individual specifically”.

35.Mr Nguyen concluded:

“I am respectfully sincere Your Honour factual basis and representation behalf on laws and assembly/assemblies commissioner in order to impose a fine force them to satisfy and/or quit impertinent – cheating unfairness and respects other please … Amen!”

36.As the Respondent quite properly points out, many of Mr Nguyen’s ‘submissions’  are no more than an attempt to discredit much of the Respondent’s evidence with unsubstantiated accusations and allegations.

37.The ‘submissions’ annexed to the transcript comment in detail on that document. On occasions, Mr Nguyen remarked “no comment” or “its not true, I’m not agree”.

38.In his appeal application, Mr Nguyen also attached a copy of the Arbitrator’s ‘Statement of Reasons’. Detailed notes are made on that document which I assume form part of his ‘submissions’. Again, many of the remarks made in relation to various paragraphs of the ‘Statement of Reasons’ are merely to the effect that Mr Nguyen disagrees with the Arbitrator’s conclusions. He frequently comments “its not truth” or “I’m not agree”.

39.Mr Nguyen comments on page 6 of the ‘Statement of Reasons’ appear to reflect a further ground of appeal in relation to the Arbitrator’s conclusions with respect to the claimed ‘psychological’ injury.

40.I will deal with the Arbitrator’s determination more fully below but in short, at paragraph 48, he concluded:

“I am not satisfied that the Applicant has discharged the relative onus with reference to the establishment of a psychological injury consequent upon the incident of 16 March 2006 …”

41.On page 6, of the ‘Statement of Reasons’, Mr Nguyen comments as follows:

“[The Respondent] forces me to carried my sickness self get back to work with threaten the contract depend on my presence – within 2 months everyone at Force One company knew there’s something strange abnormal at myself with finally got banished by some unfaithfulness explanation comprised within 2 months”.

42.In relation to his cessation of employment with Adecco Pty Limited, Mr Nguyen stated:

“… my engagement got terminated because I’m scared at work caused by anxiety and hypochondriacal symptoms of incident 16/3/06 certified by specialist doctor … and about sexual harassment, as a security officer how could I allow myself of making fuss non-sensical They just disparaged denigrated to me please investigate”.

43.Further, on page 9 of the ‘Statement of Reasons’ Mr Nguyen stated in response to the Arbitrator’s finding (paragraph 43) that: “The Applicant demonstrated the capacity for continuance of both security, and forklift, work at Adecco …” as follows:

“I’m not agree – fit or unfit neither with psychological problems its better stay away from general public – keep drinking medicines and visit doctor … nobody gonna spen money to hire a abnormal eccentrically head …”

44.It is well established, as the Respondent submits, that mere disagreement with the outcome of proceedings is not a proper basis for appeal. As Deputy President Fleming said in Rania Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34:

“Where the parties are accorded procedural fairness and the Arbitrator has taken the relevant factors into account and the discretion has been exercised fairly and lawfully, it is not appropriate, on review by a Presidential Member, to interfere with the Arbitrator’s decision.”

45.It is perhaps timely at this point to remind the parties of the nature of a review by a Presidential Member on appeal.

46.It has been succinctly summarised by Deputy President Roche in Graham Healy t/as Hunter Glass Toronto v Santarelli [2007] NSWWCCPD 188, and in many subsequent decisions. I do not propose to reiterate those principles in detail. In short, the powers of a Presidential Member to revoke a decision pursuant to section 352(7) of the 1998 Act are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error, (See Allesch v Maunz (2000) 203CLR 172), and the error must be such that, but for it, a different decision should have been made. (See Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56).

47.My task is to determine whether any errors were made by the Arbitrator notwithstanding the rather unusual form of Mr Nguyen’s submissions on appeal.

48.This I will deal with more fully below.

FRESH EVIDENCE

49.Mr Nguyen seeks leave to rely upon fresh evidence he has identified as follows:

(a)   Report of Dr S K Law, Consultant Psychiatrist, dated 13 April 2006.

(b)   A handwritten note from Mr Nguyen describing “the period of partial incapacitated [sic] … four pages of Centrelink medical certificate … plus two pages of WorkCover … medical certificate [sic].”

There are certificates from Dr Law dated 26 June 2006, 18 August 2006, 14 November 2006 and 12 February 2007.

There is a WorkCover certificate from Dr Alsaad from Fairfield Hospital dated 16 March 2006 and a certificate from Dr Le dated 22 March 2006.

(c)   Letter from the Respondent “to whom it may concern” dated 5 October 2006.

(d)   Letter from CGU to Mr Nguyen dated 31 October 2006.

(e)   Police “Event” Report dated 12 July 2006.

(f)    Report from Ms Gabby Atkins, Consultant Clinical Psychologist, dated 9 April 2007.

(g)   Statement of Joseph Keogh, employee of the Respondent.

50.Some of these documents were in fact before the Arbitrator. The “fresh evidence” seems to consist of a report of Dr Law, some of the medical certificates, and the letter from the Respondent dated 5 October 2006.

51.In addition, I have recently received from the Commission an undated letter from Mr Nguyen to which is attached an x-ray report of his cervical, thoracic, lumbosacral spine and pelvis dated 11 January 2008 apparently obtained at the request of Dr Jamal Sabsabi at Liverpool. The report is signed by Dr Barnabas Bako. I am unaware as to whether this report has been provided to the Respondent.

52.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”

53.Mr Nguyen appears to have complied with the requirements of Practice Direction No. 6 in relation to the material attached to his appeal. I simply do not know whether that is the case in relation to the x-ray report to which I have referred previously.

54.In its ‘Notice of Opposition’, the Respondent makes no comment on the ‘fresh evidence’ sought to be relied upon by Mr Nguyen simply stating: “The Respondent does not seek to admit new evidence”.

55.In the absence of evidence as to compliance with the requirements of Practice Direction No. 6, I am not prepared to admit the x-ray report. Whilst it certainly post dates the proceedings before the Arbitrator, it is of limited probative value in respect of the issues to be determined by me.

56.As to the report of Dr Law dated 13 April 2006, it seems to me that it could quite easily have been obtained by Mr Nguyen’s representatives and tendered in the proceedings before the Arbitrator. There is no doubt that reference was made to the report in submissions (page 20 transcript), but no steps were taken to have it admitted.

57.Nonetheless, relevant extracts from Dr Law’s report are contained in the report of Ms Atkins which was before the Arbitrator.

58.It appears that Mr Nguyen provided a copy of the report of Dr Law of 13 April 2006 to Ms Atkins whom he saw on 4 April 2007.

59.The report of Ms Atkins was attached to Mr Nguyen’s ‘Application to Resolve a Dispute’, and was clearly in the possession of the Respondent well prior to the arbitration hearing.

60.In all the circumstances, I am not persuaded that there is any significant prejudice to the Respondent in the admission of that report. Much of it simply documents Mr Nguyen’s symptoms and it is the conclusion that is of relevance in the proceedings before me. That conclusion was documented in Ms Atkins’ report (page 4).

61.The issue of the admission of ‘fresh evidence’ was considered at length by Deputy President Fleming in M & S Shipman Pty Limited v Larry John Matters [2003] NSWWCCPD 19. I do not propose to recite at length her comments on this issue. In short, the decision to admit or reject fresh evidence is subject to discretion. Consideration must be given to factors such as if the request is refused, whether a substantial injustice will result to the party seeking to have the evidence admitted; the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings; and 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.

62.Factors weighing against the exercise of the discretion to admit fresh evidence include the interest in finality of litigation, and the prejudice, if any, that may attach to the other party.

63.Weighing all these factors, in the exercise of my discretion, I admit the report of Dr Law.

64.Some of the certificates from Dr Law which Mr Nguyen has attached to his appeal were before the Arbitrator, namely those dated 26 June 2006 and 18 August 2006. They are ‘Centrelink’ certificates. The subsequent certificates dated 14 November 2006 and 12 February 2006 do no more than reiterate the observations and certification made in the earlier reports. In short, Dr Law continued to certify Mr Nguyen unfit for work.

65.No medical evidence was tendered by the Respondent in proceedings before the Arbitrator. The material attached to the ‘Reply’ was primarily a factual report. It is unclear whether or not the Respondent arranged for Mr Nguyen to be medically examined on its behalf.

66.In those circumstances, some prejudice may attach to the Respondent and I consider it inappropriate to admit these latter two certificates on appeal, notwithstanding any apparent objection by the Respondent to the admission of all of the ‘fresh evidence’ sought to be relied upon by Mr Nguyen.

67.The certificates of Dr Alsaad and Dr Le were before the Arbitrator.

68.The letter from the Respondent dated 5 October 2006 completely contradicts the material contained in the Respondent’s own factual report. The letter is apparently signed by George (unidentifiable surname), ‘director’. It states as follows:

“To whom it may concern.

Just to advice [sic] that [Mr Nguyen] was not working nor going to work nor comming [sic] home from work at that time.

On that day he was rostered on to work at 10:30pm, he got assaulted approx 12 lunchtime.

This is not a workers comp case, he was in his own time, doing his own thing wearing my uniform.”

69.The factual report relied upon by the Respondent stated that Mr Nguyen was due to start work at 2:45pm. He was assaulted sometime shortly before 1:00pm when the police arrived.

70.This time frame was not seriously challenged by the Respondent at the hearing, although there were issues relating to the provisions of section 10 of the 1987 Act to which I will refer more fully below.

71.Ultimately, the Arbitrator accepted that Mr Nguyen did not interrupt or deviate from his ‘journey’ nor materially increase the risk of injury by stopping as he did at Bonnyrigg.

72.For reasons which I will address more fully below, I do not propose to interfere with the Arbitrator’s finding on this issue. It is in any event, as I understand it, not the subject of appeal.

73.In those circumstances, the letter from the Respondent dated 5 October 2006 is of no probative value whatsoever, and I do not propose, in the exercise of my discretion, to admit it.

74.The letter from CGU dated 31 October 2006, the report of Ms Atkins and the statement of Mr Keogh were before the Arbitrator.

75.The police ‘event’ report does not appear to have been before the Arbitrator although a statement made by Mr Nguyen to the police and apparently witnessed by a Constable Badger dated 17 March 2006, was included in the application. That statement reflects the information contained in the ‘event’ report and as such, the latter document is of limited probative value and I reject its admission.

THE SUBMISSIONS, EVIDENCE AND FINDINGS

The ‘Psychological’ Injury

76.The Arbitrator summarised “the medical and other evidence of the parties” commencing at paragraph 20, relevantly stating as follows:

“20.1… In consequence of the assault, where the evidence reliably suggests, it seems to me, that he took quite a physical pounding, the Applicant contends physical and psychological injuries (paragraph 6 of statement). He had one (1) week off work, returned to work, but finally ceased work on 22 [sic] May 2006, it seems with a sense of paranoia.

20.2He almost immediately obtained some work briefly driving a forklift for Adecco. He claimed to have left there due to psychological injuries … He contends that, mainly due to psychological injuries, he cannot sustain work. He claims still to have back and face symptoms physically, and anxiety and depression.”

77.The Arbitrator then summarised the contents of the reports of Dr Giblin, Orthopaedic Surgeon, dated 18 September 2006 qualified by Mr Nguyen, the report of Ms Atkins, Psychologist, dated 9 April 2007 and the reports of Dr Newlyn, Psychiatrist, dated 4 July 2007. He concluded (para 20.5) as follows:

“He [Dr Newlyn] felt that the Applicant’s work on 16 March 2006 was a substantial contributing factor to his presentation now. He thought that the Applicant’s presentation was consistent. He regarded the Applicant has unfit presently for security work. The doctor noted that neither he nor Dr Law diagnosed a ‘psychotic condition’, but that the principal diagnosis was PTSD, a disorder which the doctor felt began on the Applicant’s way to work.”

78.At paragraphs 23 to 28 inclusive, the Arbitrator considered whether Mr Nguyen was on a ‘journey’ within the meaning of section 10 of the 1987 Act before concluding (para 28) “I dismiss the [Respondent’s] contention based on the argued ‘journey’ exclusion”.

79.Commencing at paragraph 29, the Arbitrator dealt with the issue of ‘incapacity’. The psychological and psychiatric material was considered commencing at paragraph 37. The Arbitrator stated:

“(37) Psychologically, it is noted that Ms Atkins (report dated 9 April 2007) had difficulty in any conclusion as to whether the Applicant’s PTSD was ‘solely secondary’ to the 16 March 2006 assault, against the traumatic previous experiences, including having been shot before, and his previous internment. Here, in essence, the Respondent submits in context that there is nothing in the medical or factual evidence supportive, from a psychological stand point, of work incapacity, or of economic incapacity arising from his psychological presentation.”

80.He continued as follows:

“(38)I note that the Report of Dr Newlyn (4 July 2007 page 15) observes: ‘Mr Nguyen is unfit for security industry work but could return to work in a position where he did not have contact with the general public and where his hyper vigilance would not cause problems’.

(39)Curiously, in this same context, it is noted that in the Reportage to Dr Newlyn, at least so far as Dr Newlyn records it, the Applicant, in terms of any prior psychiatric history, appears to represent ‘none reported prior to March 2006’. This, of itself, does not accurately reflect the antecedent psychological history, including in any balanced analysis of the question of relative work capacity.

(40)Psychologist Ms Atkins made some observations, to which I have earlier referred, … Her observations distinctly included references to Mr Nguyen’s antecedent psychological challenges including ‘… quite serious psychological injury as a result of his previous experiences in 1998 necessitating six months of psychiatric intervention’. She refers to a ‘precipitation’ of psychotic symptoms from the 6 March 2006 incident. However, these reflections, and indeed the totality of medical evidence in this regard, is measurable (amongst other factors) against the demonstrated capacity, as I see it emerging reliably from the materials and evidence, of the Applicant being demonstrably able to continue uninterruptly with, largely, his normal workplace security duties, and other work later of a physical type as demonstrated, with the Respondent and for the brief period at Adecco.

(41)Essentially, the Applicant’s claim for weekly benefits is founded on the contention of total or partial incapacity for work consequent upon his contended physical and psychological injury presentation from the 16 March 2006 incident …”

81.The Arbitrator then went on to summarise the opinions of the various specialists on the issue of ‘incapacity’ noting that Dr Giblin had assessed Mr Nguyen as unfit for labouring work but “fit for his current work environment”. Dr Giblin saw Mr Nguyen at the request of his solicitors on 13 September 2006 and did not obtain any history of him ceasing work with the Respondent and commencing with Adecco Pty Limited. Dr Giblin simply noted “he was off work for a week and then returned to his job on normal duties”.

82.Dr Newlyn opined that Mr Nguyen was unfit for security work.

83.The Arbitrator then noted the evidence that, notwithstanding various medical certificates, Mr Nguyen had returned to work a week after the incident and remained in the employ of the Respondent until 27 May 2006 when he was terminated, as the Arbitrator put it, “for a disciplinary reason”.

84.The Arbitrator concluded that Mr Nguyen had demonstrated (para 43): “… the capacity for the continuance of both security, and forklift, work at Adecco.”

85.At paragraph 46 he stated:

“In short, I do not accept that the Applicant has suffered from any work incapacity, in consequence of any physical or psychological injuries from the pleaded 16 March 2006 incident …

86.The Arbitrator accepted (para 47) that “… the Applicant endured a range of physical injuries in the 16 March 2006 assault”.

87.At paragraph 48 he stated:

“For completeness, I am not satisfied that the Applicant has discharged the relevant onus with reference to the establishment of a psychological injury consequent upon the incident of 16 March 2006. There is an accumulated antecedent psychological background in the presentation of the Applicant and where, further (for the reasons elsewhere stated) he was demonstrably able to continue with his work place duties uninterruptedly, from a psychological standpoint”.

88.In his application, Mr Nguyen claimed, as a consequence of the incident on 16 March 2006, that he suffered from injuries to the “head, neck, right arm, left arm, chest, right leg, left leg, and anxiety and/or depression, post concussional syndrome.”

89.In his statement dated 27 June 2007 he said as follows:

“(6)In addition to my physical injuries I also sustained psychological injuries including withdrawal from my work mates, hyperactivity, I am suspicious of everyone including my work mates, absent mindness, recurrent nightmares and depression. I took about one week off work and returned to work at Force One Security, however, I felt very paranoid about people looking at me and ceased work on 22 May 2006.

(9)I then gained work for a short period of time driving a forklift, but I had to stop work, due to my psychological injuries.

(11)I am currently under the care of Dr Low [Law] whom I see one – three times per week. At the present time due to my injuries, mainly my psychological symptoms, I am not able to perform any type of work.

(14)     I believe the injury has affected my psychological outlook.”

90.Mr Nguyen was issued with a certificate under the hand of Dr Alsaad from Fairfield Hospital certifying him unfit to work from 16 March 2006 to 23 March 2006. A certificate from Dr Jonathan Le, Mr Nguyen’s general practitioner, dated 22 March 2006 certified him unfit to work from 22 March to 15 April 2006. Notwithstanding this certificate, Mr Nguyen returned to work. It is noteworthy however that that certificate refers to, inter alia, “psychological condition”.

91.A Centrelink certificate under the hand of Dr Law dated 26 June 2006 notes that Mr Nguyen has been his patient since 12 April 2006. That certificate (and subsequent ones to which I have referred previously), certified Mr Nguyen unfit for work. His condition was described as “severe anxiety disorder”.

92.Mr Nguyen apparently self referred to the Sydney Trauma Clinic in February 2007. He underwent psychological assessment by Ms Gabby Atkins. In her report of 9 April 2007, she made reference to the report of Dr Law of 13 April 2006 quoting from that report as follows:

“Dr Law’s report stated Mr Nguyen to be ‘a bit slow and hesitant in answering questions. He was preoccupied with his various psychomatic and psychological symptoms. He was not overtly depressed’. Dr Law concluded ‘he probably has some anxiety and hypochondriacal symptoms. These symptoms have probably arisen following the incident of his being assaulted on 16-3-2006”.

93.She noted Dr Law had prescribed nortryptiline, a tricyclic anti-depressant.

94.Ms Atkins obtained a history that Mr Nguyen was asked to leave the employ of Adecco Pty Limited “… following an incident at work while he was driving the forklift”. She noted Mr Nguyen’s statement that “… the medicine Dr Law gave him relaxed him, but made him tired and ‘reduced my physical fitness’.”

95.Ms Atkins continued as follows (page 6):

“Dr Law’s report on 13 April 2006 stated Mr Nguyen ‘denied any past history of having been assaulted’. However, when asked at interview whether he had ever seen a psychologist or psychiatrist before Mr Nguyen admitted to seeing a psychiatrist in the past for about six months … Mr Nguyen stated in 1998 he was shot in the right hip and the bullet travelled to his left hip where it is still lodged … he was at a coffee shop in Marrickville and ‘somebody shot me’ but said he did not know why … Mr Nguyen believes he was shot accidentally. Mr Nguyen said he was then arrested and held in prison for three months after which time was granted bail. Mr Nguyen said he was held at Silverwater, Long Bay and Parklea Detention Centres and during this time he ‘witnessed very bad experiences’. During this account Mr Nguyen become quite withdrawn and distant … He stated the reason why he saw the psychiatrist, whose name he could not supply, was because of his experiences while in detention”.

96.Mrs Atkins concluded as follows:

“It is difficult to conclude whether or not Mr Nguyen’s current PTSD is solely secondary to the assault he sustained on March 16 2006 in view of his similarly traumatic past experiences of having been shot and incarcerated for three months. These past experiences obviously affected Mr Nguyen psychologically since he attended six months of psychiatric intervention twice a month.

What is of concern is Mr Nguyen’s current psychotic state, which he claims began following the assault in March 2006. Although he is under psychiatric care, his positive symptoms of auditory hallucinations are persisting … as well as cognitive deficits.

It is not unreasonable to conclude that the assault on March 16 2006 may have been sufficiently stressful to precipitate his currently reported psychotic symptoms. Particularly since it is highly likely he suffered quite serious psychological injury as a result of his previous experiences in 1998 necessitating six months of psychiatric intervention.

In view of Mr Nguyen’s current, severely disturbed psychological state at least in part due to the assault he sustained on March 16 2006, the following recommendations are made …”

97.Ms Atkins recommended that Mr Nguyen “… be admitted to an inpatient acute PTSD management programme as a matter of urgency.”

98.At the Sydney Trauma Clinic Mr Nguyen was also seen by Dr David Kaye, Director of Clinical Services. (Dr Kaye’s qualifications are not known). In a report dated 21 March 2007 addressed to CGU, Dr Kaye concluded “… Mr Nguyen suffers from Chronic Post Traumatic Stress Disorder with features of anxiety, depression and displaced anger,” consequent upon the reported incident in March 2006. Dr Kaye also considered that Mr Nguyen ought be admitted as an inpatient.

99.I note that both Ms Atkins and Dr Kaye’s reports were addressed to the Case Manager at CGU, with the relevant claim number identified.

100.Mr Nguyen also consulted Dr Thomas Newlyn, Psychiatrist, at the request of his solicitors, on 22 May 2007. In a detailed 20 page report, Dr Newlyn concluded as follows (page 15):

“Mr Nguyen is unable to resume his normal pre-injury duties in the security industry because of his post-traumatic symptoms with hypervigilance being a particular barrier to return to work … Mr Nguyen is unfit for security industry work but could return to work in a position where he did not have contact with the general public and where his hypervigilance would not cause problems … Mr Nguyen has a temporary disability that should resolve over the next year. At that time, Mr Nguyen may be able to return to the security industry”. 

101.As the Arbitrator rightly pointed out, Dr Newlyn did not obtain any history of previous psychiatric intervention as noted by Ms Atkins.

102.Although not his speciality, it is perhaps worth noting that Dr Giblin obtained no history of any symptoms of a psychological or psychiatric nature.

103.As I said earlier, no medical evidence was tendered by the Respondent.

104.In these circumstances, I am at a loss to understand how the Arbitrator could have concluded that Mr Nguyen had failed to discharge “… the relative onus with reference to the establishment of a psychological injury consequent upon the incident of 16 March 2006”, notwithstanding a previous history of psychiatric treatment as noted by Ms Atkins.

105.The Arbitrator’s finding on this issue was in my view incorrect: there was more than adequate evidence, particularly in the absence of any evidence to the contrary from the Respondent to support a finding that Mr Nguyen suffered a psychological ‘injury’ as a consequence of the incident on 16 March 2006. Indeed, the thrust of the Respondent’s submissions before the Arbitrator were to the effect that (para 37) “… there is nothing in the … evidence supportive, from a psychological standpoint, of … economic incapacity arising from his psychological presentation.”

106.The consequence of such an injury, and indeed the previous psychiatric intervention, is a different matter altogether, in particular, the issue of incapacity to which I will shortly refer. There are however implications in the Arbitrator’s ultimate findings as to injury and as to the referral for assessment to an Approved Medical Specialist (‘AMS’).

The ‘Incapacity’ Issue

107.Mr Nguyen submits that Arbitrator erred in failing to award him weekly benefits of compensation.

108.Mr Nguyen’s assertion appears to be correct insofar as the period 16 March 2006 to 23 March 2006 is concerned.

109.The transcript records counsel for the Respondent’s submissions as follows (page 10):

“… The Applicant in the sense of economic incapacity had recovered when he returned to work on 23 March. So, in those circumstances, the Respondent submits that the Applicant is entitled to only one week compensation, that is, if the Respondent’s submission regarding injury [in relation to section 10 of the 1987 Act] fails.”

110.Previously (page 9), submissions were made regarding Mr Nguyen’s claim for weekly benefits at the rate of $1100.00 per week. Annexed to Mr Nguyen’s Application were a series of payslips from the Respondent commencing the week ending 22 January 2006 and concluding in the week ending 21 May 2006. Mr Nguyen’s evidence was that he was off work for one week between 16 March 2006 and 23 March 2006. That did not appear to be disputed by the Respondent. Curiously however, the payslip for the week ending 19 March 2006 records Mr Nguyen as working a total of 24 hours at an hourly rate of $16.50, a gross amount of $396.00. For the period ended 26 March 2006, he was again recorded as working 24 hours earning a total of $396.00 for that week.

111.Consideration must then be given to the amount of weight to be attached to these documents. They are in effect the Respondent’s documents but appear to conflict with the material contained in a factual report from MJM Investigations (Australia) Pty Limited (‘MJM’) annexed to the Respondent’s Reply. In that report, the investigator concluded (page 13): “He [Mr Nguyen] was absent from the workplace to the 23 March 2006 …” A document titled “Sign in register for the Claimant” attached to the report appears to confirm that Mr Nguyen was indeed absent from the 16^th to 23^rd March 2006.

112.However, accepting the payslips at face value, they reveal that in the early weeks of his employment, Mr Nguyen worked around 36 hours per week. By February he had increased to 48 hours per week and in the week ending 2 April 2006 he apparently worked 50.5 hours. That dropped back to 24 hours in the week ending 9 April 2006 and increased to 60 hours for the week ending 23 April 2006.

113.In the week ending 14 May 2006 he apparently worked 65.5 hours, and the week ending 21 May 2006, a total of 64 hours.

114.Accordingly, his income varied substantially from week to week. By my calculations, in the five months or so he was employed by the Respondent, he appears to have earned an average of approximately $822.00 per week.

115.It is not clear whether the documents annexed reflect the total earnings for the period of employment. It is claimed that Mr Nguyen ceased work with the Respondent on 27 May 2006, but the last pay period seems to end at the week ending 21 May 2006. There is thus some difficulty in establishing the exact period of employment with the Respondent. 

116.The evidence, particularly from the Respondent, supported a finding of total incapacity for the period 16 March 2006 to 23 March 2006, and Mr Nguyen is entitled to an award for that period.

117.The issue of incapacity thereafter is more contentious.

118.Despite Mr Nguyen’s assertions as to his difficulties at work with the Respondent in the period 23 March 2006 until his termination, there is no evidence that he suffered any economic incapacity during that time. Indeed, again accepting the payslips at face value, he appears to have worked many more hours per week than he had pre-injury. This is supported to some extent by the MJM report relied upon by the Respondent, particularly the statement of Mr Keogh in that report to which I have referred previously. Mr Keogh claims that:

“He worked for us doing his normal security duties to 27 May 2006. At no time did he complain of any injury or illness and at no time did he request any change of duties”.

119.The Arbitrator was entitled to accept the evidence of the Respondent, in particular the statements of Mr Saolotaga (Junior) Tautaiolefue and Mr Keogh as to the circumstances of Mr Nguyen’s dismissal from the Respondent’s employ. Mr Nguyen did not give oral evidence nor provide a statement to refute the allegations contained in the Respondent’s statements.

120.It is clear that shortly after leaving the employ of the Respondent, Mr Nguyen obtained work at Adecco Pty Limited where, the Arbitrator recorded (para 32), “… he was earning of the order of $829.00 weekly, apparently akin to, and largely greater than, the continuance of his earning capacity, including post-injury, with the Respondent previously.”

121.In his report of 4 July 2007, Dr Newlyn reported Mr Nguyen as stating:

“On 31 May I changed to be a forklift driver for Adecco. I lost concentration and smacked the forklift. I stopped work 20 June 2006. I couldn’t work after that. My head has problems. It isn’t my head no more.”

122.In short, the evidence supported the Arbitrator’s findings that Mr Nguyen did not suffer any economic incapacity as a result of his injuries (whether physical or psychological) up until the time he ceased work with Adecco Pty Limited.

123.The question of incapacity beyond that date is more vexed. As the Arbitrator rightly noted, Dr Giblin (an Orthopaedic Surgeon) had certified Mr Nguyen unfit for labouring work, but “fit for his current work environment”. As I said earlier, Dr Giblin had no history of Mr Nguyen ceasing employment with the Respondent, nor indeed of his work at Adecco Pty Limited. Dr Newlyn opined that the Applicant was unfit for security work. Although not addressing the issue directly, Ms Atkins was of the view that Mr Nguyen needed urgent psychiatric treatment as an inpatient. She concluded “… the prognosis is positive providing Mr Nguyen receives suitable and prompt intervention and his psychotic symptoms are stabilised and monitored regularly”. That statement suggests that Mr Nguyen was certainly incapacitated, whether partial or total is speculative, as at February 2007.

124.Mr Nguyen, in his submissions, maintains that he has been incapacitated, essentially from a psychiatric point of view, at least since ceasing work with Adecco Pty Limited. The evidence is certainly equivocal. Dr Giblin, although admittedly not his speciality, nonetheless did not obtain any history of any psychological symptoms. Moreover, I note Dr Newlyn opined that Mr Nguyen’s condition ought resolve over a period of approximately 12 months.

125.It seems that the Arbitrator dismissed Mr Nguyen’s claim for weekly benefits from 16 March 2006 firstly on the basis that he was able to work, without loss, for some months following the incident, and secondly, because of his finding that Mr Nguyen had not “discharged the relative onus” in establishing a psychological injury.

126.Having determined that the Arbitrator erred in that aspect of his decision, the question then becomes to what extent, if any, was Mr Nguyen incapacitated as a consequence of any psychological injury following cessation of employment with Adecco Pty Limited. Mr Nguyen himself both in his statement and submissions on appeal, suggests that his incapacity is as a result of a psychological injury.

127.The question to consider, as Jacobs JA said in Metropolitan Coal Company Limited v Duffy [1996] 67 SR (NSW) 163 (at 168) is whether Mr Nguyen’s injuries have:

“… affected the value of the worker on the labour market ... The fact that his previous job is open to him and that he is able to carry it out are no doubt very important elements in determining whether the injury has affected the value of the worker on the labour market. However, they are not conclusive and, particularly if his pre-injury employment is a suitable employment as a result of particular circumstances of the Applicant’s position, it does not follow as a matter of law that the Applicant has suffered no incapacity for work.”

128.In Steggles Pty Limited v Aguirre (1998) 12 NSWLR 693 Priestly JA, quoting from Atkin LJ in Hamilton v Shelton Iron and Steel & Co Limited (1926) 96 LJKB 295 said: 

“... If (the partially incapacitated worker) gives up a job of his own accord, it may very well be found by the Judge that in fact he was able to earn those wages, because except for his own fault he would be in that employment still earning those wages. That is a matter to be taken into account: but if the job has ceased, then it seems to me it matters not why it has ceased ... the job, at any rate, is then at an end and the Judge has to determine whether or not the man is able to earn in the labour market the wages, and if so, at what rate, taking into account the fact that he was when last employed earning the particular wages that he received from his employer.”

129.In other words, an enquiry must be made as to whether the compensable injury impacts in a negative way on the worker’s capacity to earn in the open labour market

130.In my view, this is a matter that requires redetermination. It is not possible for me, on the material before me, to determine if there is any continuing economic incapacity consequent upon the effects of a psychological injury particularly in view of the difficulty in establishing Mr Nguyen’s earnings.  I am mindful of the lack of evidence by the Respondent on this issue although it is clear that since at least March 2007, the Respondent was aware of the allegation of psychological injury (see reports of Dr Kaye and Ms Atkins). In this matter both parties may need to consider the state of the evidence.

131.The appropriate course is to remit the matter to another Arbitrator to determine the issue of incapacity subsequent to 20 June 2006.

CONCLUSION

132.The Arbitrator’s finding that Mr Nguyen’s injury arose on a journey within the meaning of section 10 of the 1987 Act was valid and in line with the totality of the evidence before him. It was similarly appropriate for him to find that the interruption or deviation to his journey for the purposes of purchasing a drink at a store did not materially increase the risk of injury within the meaning of section 10(2) of the 1987 Act. The Arbitrator appears to have dismissed Mr Nguyen’s claim for psychological injury at least in part on the basis of “… accumulated antecedent psychological background …” Although not specified, it appears that the Arbitrator had in mind the provisions of section 9A of the 1987 Act however, it must be noted that subsection 4 of section 9A provides “this section does not apply in respect of an injury to which section 10, 11 or 12 applies”. Thus Ms Atkins’ statement that: “It is difficult to conclude whether or not Mr Nguyen’s current PTSD is solely (my emphasis) secondary to the assault he sustained on March 16, 2006 …” is not relevant in the context of the injury claimed. What is relevant is her ultimate conclusion that: “It is not unreasonable to conclude that the assault on March 16, 2006 may have been sufficiently stressful to precipitate his currently reported psychotic symptoms.” His condition, she concluded was, “… at least in part due to the assault …”

133.The Arbitrator’s determination that Mr Nguyen had failed to discharge “… the relative onus with reference to the establishment of a psychological injury consequent upon the incident of 16 March 2006” was wrong in law, and against the weight of the evidence. Notwithstanding any pre-existing psychological condition, there was clear and uncontroverted evidence that Mr Nguyen suffered a psychological injury as a consequence of the assault on 16 March 2006, and he is entitled to test the consequences of that finding.

134.The Arbitrator further erred in failing to award Mr Nguyen weekly benefits for the period 16 March 2006 to 23 March 2006.

135.Given the unexplained and unresolved inconsistencies in much of the evidence, particularly the pay records to which I have referred, it is not appropriate for me to substitute my own award for that period. If the pay records are in fact accurate, it would appear that Mr Nguyen is entitled to an award at the rate of $822.00 per week for that period.

136.The Arbitrator’s determination in relation to the injury to the cervical spine was consistent with the evidence. Counsel for Mr Nguyen conceded that (page 22 transcript): “… I think the neck seems to be the only one where there is a proper assessment … I think it’s only the cervical spine”.

137.Dr Giblin had assessed Mr Nguyen as suffering a 5% WPI as a consequence of injury to his neck.

138.Dr Newlyn has assessed a 2% WPI as a consequence of psychological injury however I note that this is based on his acknowledgment that “there is no pre-existing impairment”.

139.It seems to me that Mr Nguyen is entitled to have his claim for psychological injury referred for assessment by an AMS. Thus the Arbitrator’s determination at paragraphs 2 and 3 of his ‘Certificate of Determination’ should remain, omitting the reference to “singularly” to the physical injury of the cervical spine.

DECISION

140.1.        The decision of the Arbitrator dated 21 September 2007 is revoked and the following orders are made in substitution:

(1) There is an award for the Applicant with respect to his claim for section 66 of the Workers Compensation Act 1987 whole person impairment with reference to the cervical spine.

(2) The claim of the Applicant for section 66 of the Workers Compensation Act 1987 whole person impairment from date of injury of 16 March 2006 is referable by the Registrar to an ‘Approved Medical Specialist’. The body part referred is the cervical spine for the purposes of that assessment.

(3) There is an award for the Applicant with respect to his claim for section 60 of the Workers Compensation Act 1987 medical and treatment expenses upon production of accounts and/or receipts.

(4) The Respondent to pay the Applicant’s costs as agreed or assessed.

2.The matter is remitted to another Arbitrator for redetermination of all outstanding issues in accordance with these reasons noting the following findings:

(a)Mr Nguyen is entitled to weekly compensation for the period 16 March 2006 to 23 March 2006 pursuant to section 36 of the Workers Compensation Act 1987 Act (with credit to the Respondent if payment has already been made).

(b)Mr Nguyen has suffered a psychological injury as a consequence of the incident on 16 March 2006, and any claim for whole person impairment consequent upon that finding should be referred by the Registrar to an ‘Approved Medical Specialist’.

(c)The Arbitrator’s findings on the issue of incapacity during the period 23 March 2006 to 20 June 2006 are confirmed.

(d)The question of incapacity subsequent to 20 June 2006 to be determined in accordance with these reasons.

COSTS

141.Mr Nguyen has been in part successful on appeal. In these circumstances, it is appropriate that the Respondent pay the costs of the appeal.

Deborah Moore

Acting Deputy President

14 February 2008

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE