Paul Wilson and Australian Postal Corporation
[2014] AATA 805
•30 October 2014
[2014] AATA 805
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6222
Re
Paul Wilson
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Ms J L Redfern, Senior Member Date 30 October 2014 Place Sydney The decision under review is set aside and in substitution the tribunal decides that Australia Post is liable to pay Mr Wilson compensation pursuant to s 24(1) of the Act based on 10% whole person impairment. Pursuant to s 67(8) costs are awarded to the applicant, other than for the first three days of hearing.
.................[sgd]..................................................
Ms J L Redfern, Senior Member
CATCHWORDS
COMPENSATION – employee of licensed corporation – claim for compensation for injury resulting in permanent impairment – whether accepted psychological injury arising from 2009 road rage incident resulted in permanent impairment – assessment of the degree of permanent impairment – costs – decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 2A
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 24, 27, 28, 67
CASES
Canute v Comcare (2006) 226 CLR 535
Jordan v Australia Post Corporation (2007) 99 ALD 303; [2007] FCA 2028
Martin v Australian Postal Corporation [1999] FCA 655Perry v Comcare (2006) 150 FCR 319; [2006] FCA 33
SECONDARY MATERIALS
Comcare Australia, Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 (Comcare, 2011)
REASONS FOR DECISION
Ms J L Redfern, Senior Member
30 October 2014
INTRODUCTION
Mr Paul Wilson is a postal delivery driver with the Australian Postal Corporation (Australia Post), where he has worked since 1997. On 24 April 2009 Mr Wilson was the victim of a road rage incident while undertaking his postal delivery duties. A number of men attacked him at traffic lights and he was forced to flee from his van. Mr Wilson sustained both physical and psychological injuries as a result of this incident. This is not in dispute.
On 27 August 2012, Mr Wilson was involved in a motor vehicle accident, again while he was working. He sustained physical injuries to his spine and right shoulder.
Liability was accepted by Australia Post for Mr Wilson’s work-related injuries arising out of both incidents.
On 17 May 2012, Mr Wilson made a claim for permanent impairment in respect of the psychological injury sustained by him as a result of the April 2009 incident. By determination made on 5 October 2012 Australia Post denied liability to pay compensation for permanent impairment on the basis that the degree of Mr Wilson’s permanent impairment was less than the 10% threshold required to enliven their obligation to pay lump sum compensation. Mr Wilson did not seek reconsideration of this decision but made another claim for lump sum compensation in respect of this psychological injury on 11 September 2013. By determination dated 23 October, 2013, Mr Wilson’s claim was again rejected. Australia Post accepted Mr Wilson had a psychological injury arising from the April 2009 road rage incident, accepted his impairment was permanent but did not accept that the impairment reached the 10% permanent impairment threshold. Australia Post also determined Mr Wilson was not entitled to non-economic loss.
Mr Wilson sought reconsideration but the determination was affirmed by a delegate of Australia Post on 13 November 2013.
It is common ground that Mr Wilson sustained psychological injury as a result of the 2009 incident, although there are differing views about his diagnosis. It is also common ground that Mr Wilson has permanent impairment from a psychiatric condition.
The issues in dispute are: first, whether the impairment results from the work-related incident in April 2009 and; secondly, if so, the extent of the impairment. The controversy arises because Mr Wilson has a history of alcohol consumption, the extent of which is in dispute, and suffered psychological injury arising from the second work-related incident. It is common ground that the critical issue for determination requires the tribunal to isolate the effects of the 2009 incident and assess the impairment that resulted from that incident. Both parties rely on the decision of Buchanan J in Jordan v Australia Post Corporation (2007) 99 ALD 303; [2007] FCA 2028 (Jordan) but submitted the meaning of “results” supports the conclusion for which they respectively contend.
There is no dispute that if Mr Wilson’s impairment resulting from the 2009 incident is 10% or more, he is entitled to lump sum compensation and the decision should be set aside. Conversely, if Mr Wilson’s impairment did not result from the work-related incident or is less than the 10% threshold, he will not be entitled to lump sum compensation and the decision should be affirmed. Compensation for non-economic loss is only payable where lump sum compensation is payable for permanent impairment. The parties therefore agreed prior to the hearing that if the tribunal determined Mr Wilson was entitled to lump sum compensation, the determination about non-economic loss should be remitted to Australia Post for re-determination.
If Mr Wilson is successful in his claim, a further issue arises about the costs that should be awarded. This issue arises because of the conduct of the hearing by Mr Wilson and his lawyers.
STATUTORY FRAMEWORK
Mr Wilson’s claim for compensation was made pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Section 24 relevantly provides:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
...
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
Section 27(1) provides:
Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
“Injury” is defined by s 5A of the Act relevantly as follows:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
13. Section 28 of the Act provides for the preparation of a Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”), being the “Guide” referred to in s 24(5), as follows:
(1)Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
...
(4)Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.
Having regard to the provisions of s 28(4), it is common ground that the Guide is binding in the present case and that Edition 2.1 is relevant to the assessment of Mr Wilson’s claim for lump sum compensation.
Edition 2.1 of the Guide describes the process for assessing impairment based on the concept of “whole person impairment” as follows:
This guide, like the previous editions, is, for the purposes of expressing the degree of impairment as a percentage, based on the concept of ‘whole person impairment’. Subsection 24(5) of the SRC Act provides for the determination of the degree of permanent impairment of the employee resulting from an injury, that is, the employee as a whole person. The whole person impairment concept, therefore, provides for compensation for the permanent impairment of any body part, system or function to the extent to which it permanently impairs the employee as a whole person.
Whole person impairment is assessed under Division 1 of Parts 1 and 2 of this guide.
Part 1 of the Guide sets out the “Principles of Assessment” and provides as follows:
4. PRE-EXISTING CONDITIONS AND AGGRAVATION
Where a pre-existing or underlying condition is aggravated by a work-related injury, only the impairment resulting from the aggravation is to be assessed. However, an assessment should not be made unless the effects of the aggravation of the underlying or pre-existing condition are considered permanent. In these situations, the pre-existing or underlying condition would usually have been symptomatic prior to the work-related injury and the degree of permanent impairment resulting from that condition is able to be accurately assessed.
If the employee’s impairment is entirely attributable to the pre-existing or underlying condition, or to the natural progression of such a condition, the assessment for permanent impairment is nil.
Where the pre-existing or underlying condition was previously asymptomatic, all the permanent impairment arising from the work-related injury is compensable.
5. THE IMPAIRMENT TABLES
Part 1, Division 1 of this guide is based on the concept of whole person impairment which is drawn from the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5th edition 2001.
Division 1 assembles into groups, according to body system, detailed descriptions of impairments. The extent of each impairment is expressed as a percentage value of the whole, normal, healthy person. Thus, a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this guide.
...
7. PERCENTAGES OF IMPAIRMENT
Most tables in Part 1, Division 1 provide impairment values expressed as fixed percentages. Where such a table is applicable in respect of a particular impairment, there is no discretion to choose an impairment value not specified in that table. For example, where 10% and 20% are the specified values, there is no discretion to determine the degree of impairment as 15%.
Where a table provides for impairment values within a range, consideration will need to be given to all criteria applicable to the condition, which includes performing activities of daily living and an estimate of the degree to which the medical impairment interferes with these activities. In some cases, additional information may be required to determine where to place an individual within the range. The person conducting the assessment must provide written reason why he or she considers the selected point within the range as clinically justifiable.
...
9. COMBINED VALUES
...
Where there is an initial injury (or pre-existing condition) which results in impairment, and a second injury which results in impairment to the same bodily part, system or function the pre-existing impairment must be disregarded when assessing the degree of impairment of the second injury. The second injury should be assessed by reference to the functional capacities of a normal healthy person. The final scores are then added together.
Where two or more injuries give rise to different whole person impairments, each injury is to be assessed separately and the final scores for each injury (including any combined score for a particular injury) added together.
...
It is relevant to note that for the purposes of the Guide “injury” is defined in the same terms as in the Act. As such, and as observed in Jordan by Buchanan J at [16], it follows that whole person impairment only refers to “the medical effects of an injury or aggravation arising out of or in the course of employment”.
The relevant table for the assessment of Mr Wilson’s claim is Table 5.1 “Psychiatric Conditions”. Table 5.1 contains definitions for different percentages of impairment and relevantly provides, covering the percentages for impairment in the range 0 % to 15% as follows:
% WPI Description of level of impairment 0 Reactions to stresses of daily living without loss of personal or social efficiency
and
Capable of performing activities of daily living without supervision or assistance.
5 Despite the presence of one of the following employee is capable of performing activities of daily living without supervision or assistance:
· reactions to stresses of daily living with minor loss of personal or social efficiency
· lack of conscience directed behaviour without harm to community or self
· minor distortions of thinking.
10 Despite the presence of more than one of the following employee is capable of performing activities of daily living without supervision or assistance:
· reactions to stresses of daily living with minor loss of personal or social efficiency
· lack of conscience directed behaviour without harm to community or self
· minor distortions of thinking.
15 Any one of the following accompanied by a need for some supervision and direction in activities of daily living:
· reactions to stresses of daily living which cause modification to daily living patterns
· marked disturbances in thinking
· definite disturbance in behaviour.
Given the contentions of Australia Post about the effect of the 2012 accident and Mr Wilson’s underlying alcohol problems, which are denied by Mr Wilson, the Principles of Assessment set out in the Guide are significant. Buchanan J commented on the importance of attributing impairment to a compensable injury for the purposes of assessing lump sum compensation payable under s 24 of the Act. While Edition 1 of the Guide was the relevant version for consideration in Jordan, the parties agreed that the observations of Buchanan J applied equally to the facts of this case. His Honour stated at [14] as follows:
… where possible, only compensable injury should be assigned a value. That is consistent with s 24 which directs a determination of the degree of impairment resulting from an “injury”: as defined in s 5A. Neither s 24 nor the guide contemplate unnecessary assessment of, or the assignment of a percentage value of impairment to, non-compensable injury or underlying conditions. It follows from this statement of principles, and from authority which will be referred to in due course, that if it was not possible to isolate the compensable effects of a work-related injury from those of an underlying condition the assessment was to be made by reference to the totality of effects.
Section 67(8) of the Act confers discretion to award costs, or part of those costs, where the Tribunal varies or sets aside and substitutes a decision that it is that is more favourable to the claimant than the reviewable decision.
BACKGROUND FACTS AND EVIDENCE
Mr Wilson worked in the oil industry for many years prior to being retrenched in 1995. He joined Australia Post in July 1997.
According to a memorandum from Mr Wilson’s personnel file produced by Australia Post, he was asked to leave work and go home on 24 December 1997 because his behaviour was observed to be erratic. His manager suspected that Mr Wilson was under the influence of alcohol. The note also records that Mr Wilson was interviewed about his behaviour on his return to work after Christmas and he accepted counselling. Mr Wilson apparently signed the note on 29 December 1997.
There was a further incident alleged to have taken place on 28 July 1998 which was recorded in an undated report by his supervisor to the Manager of the South Parcel Centre, the receipt of which was acknowledged by the Manager on 4 August 1998. The report referred to discussions between the supervisor and Mr Wilson regarding complaints by Mr Wilson about pain to his back and arm and included the following:
During our conversation he was very agitated, nervous and smelt of alcohol. This drinking problem has been ongoing since last Christmas when he was sent home. I have been receiving constant complaints from staff concerning his behaviour and attitude.
In my opinion if nothing is done to alter his above actions e.g. numerous forklift and driving accidents, there could be serious accident or injury forthcoming to himself and others.
I am hoping my report will be taken into your kind consideration. NB already has received counselling once concerning his drinking habits.
According to a leave application form signed by Mr Wilson’s supervisor and dated 27 January 2000, Mr Wilson was again sent home on 24 December 1999 and the reason recorded on the leave application form was “consuming alcohol”.
It is unclear if any disciplinary action was taken following these incidents and no further information was provided by Australia Post in this regard.
Mr Wilson was questioned about these incidents during the hearing. He agreed he was sent home before Christmas, although he did not specify which year he was referring to, and said this was because he had told his supervisor he wanted to resign. He said he was given a six pack of beer and told to go home. Mr Wilson denied he had alcohol problems at this stage and said that he disagreed with the report of the July 1998 incident. He did not deny signing the 1997 report but had little recollection of these incidents. This is not surprising given they relate to events over 15 years ago.
There is no record of any subsequent alcohol-related incident at work after this date.
On 24 April 2009, Mr Wilson was driving his work van when he merged into a lane before stopping at traffic lights. The driver behind him apparently took offence and got out of his car, together with his passenger, and abused Mr Wilson. On Mr Wilson’s account, and there is no contest on this, the driver said he was going to kill Mr Wilson. He and his passenger then proceeded to smash windows in Mr Wilson’s van. Mr Wilson said he fled the van and while he was running away, tore his hamstring. Mr Wilson did not take any time off work at this time. He was required to give evidence at the criminal trial and reported to doctors that one of his attackers confronted him at the local club after the sentence. Both attackers were apparently given a good behaviour bond. Mr Wilson gave evidence that he had wanted someone from Australia Post to accompany him when he gave evidence but colleagues refused because of concern of possible reprisals. He said he felt unsupported by Australia Post at this time.
In March 2010, Mr Wilson was referred to a psychologist for treatment by his general practitioner. In her report dated 22 March 2010, Ms Flora Truong, psychologist, opined that Mr Wilson presented with a diagnosis of adjustment disorder with anxious mood. She stated that he would benefit from psychological and pain management counselling. Mr Wilson underwent six sessions with Ms Truong.
He was also examined by Mr Thomas O’Neill, clinical psychologist, on 25 March 2010 who opined that Mr Wilson did not suffer a psychological or psychiatric disorder but suffered anxiety “experienced in specific situations, notably closed spaces and dense traffic”.
In about March 2012, Mr Wilson separated from his second wife, to whom he had been married for approximately nine years. Mr Wilson was referred to a psychologist for counselling in relation to his marriage difficulties but, after attending a session on 29 April 2012, declined to attend further sessions. In his evidence to the tribunal, Mr Wilson said there was no point attending because his wife refused to participate. According to the clinical notes from his general practitioner, Mr Wilson had marriage issues “related to his gambling and drinking over the weekends”. In his evidence to the tribunal and his reports to various doctors, Mr Wilson blamed the breakdown of his marriage on his moods and drinking following the incident in April 2009.
In May 2012, Mr Wilson made a claim for permanent impairment for a psychological condition which he claimed resulted from the April 2009 incident. In his claim form, Mr Wilson stated that his psychological injury had caused his marriage to break up.
Mr Wilson was examined by Dr Phillip Brown, consultant psychiatrist and psychologist, at the request of Australia Post. In his report dated 3 July 2012 Dr Brown opined as follows:
In my opinion Mr Wilson developed Specific Phobia of Being Assaulted and of Enclosed Spaces. It was and is of a mild degree, and he has been treating it himself by resisting most avoidant-behaviour, apart from not being prepared to fly in a plane and some minor avoidance of where the assault occurred and in some behaviour at home.
This is a psychological condition under the criteria of DSM IV, the internationally accepted manual of psychiatric diagnosis.
In my opinion he does not have an Adjustment Disorder or any other anxiety disorder, such as Post Traumatic Stress Disorder.
Dr Brown further opined:
Mr Wilson’s psychological symptoms are mild. However, they are unlikely to abate with the passage of time. He is resisting [them] apart from avoiding the place of the assault, airplane travel and some mild avoidant behaviour at home. They are not otherwise significantly affecting his life and are not affecting his work.
On 27 August 2012 Mr Wilson was involved in a motor vehicle accident while on his deliveries. A truck went through a stop sign causing Mr Wilson’s van to smash into the truck. He suffered injuries to his spine and right shoulder.
On 17 September 2012, Mr Wilson was examined by Dr Anne-Marie Rees, consultant psychiatrist, at the request of Australia Post. In her report dated 3 October 2012, Dr Rees opined as follows:
In my opinion he has a specific phobia related to enclosed spaces and fear of assault. There is avoidance related to enclosed spaces and this issue is of a mild degree. By avoiding he has not developed panic attacks. In my opinion he does not have a significant depressive illness or significant psychological effects related to his chronic pain and he manages this quite well with his exercise program. He has more recently developed further pain due to a motor vehicle accident just a few weeks ago. In my opinion he does not have Post Traumatic Stress Disorder. In my opinion he has psychological distress related to his wife leaving him six months ago. In my opinion he may well have an Adjustment Disorder related to this and he certainly has substance abuse issues related to his wife leaving him. This is in the form of alcohol.
Dr Rees was asked whether Mr Wilson’s injury resulted in permanent impairment. She responded as follows:
In terms of permanent impairment in my opinion Mr Wilson is able to function in his activities of daily living in terms of self care and communication and physical activity. He is able to drive a vehicle although describes some difficulties with taking a train due to the claustrophobia. There are problems with his sexual function and sleep patterns related to his physical injuries. His social and recreational activities have been impacted upon by his physical injury and in my opinion not by his psychological injury. In my opinion he has developed some permanent impairment over the last few years related to his anxiety which includes difficulties with enclosed spaces. This would have become permanent over the last year.
Dr Rees was asked to provide her opinion as to the level of permanent impairment suffered by Mr Wilson caused by his work-related injuries. She responded as follows:
In my opinion overall I note that Mr Wilson is able to perform his activities of daily living without supervision, assistance or direction. He does have some minor distortions of thinking mainly related to his fear of enclosed spaces which relates to the traumatic incident that he was involved in with road rage. In my opinion his permanent impairment rating would be 5%. I note that he has not received any treatment for this condition and continues to function with work and socially reasonably well.
On 15 January 2013, Mr Wilson was examined by Associate Professor Michael Robertson, consultant psychiatrist. Professor Robertson was asked to make a diagnosis and to assess Mr Wilson’s impairment. In his report dated 16 January 2013, Professor Robertson opined as follows:
Having assessed Mr Wilson, it is my opinion that his primary problem is alcohol dependence. His alcohol use is clearly in excess of safe levels. He continues to drink in spite of serious physical and social consequences and his alcohol use has led to a diminished repertoire of behaviours surrounding his drinking.
As to the underlying psychopathology, Dr Brown’s formulation of a simple phobia seems, in itself, somewhat simplistic. Whilst it is difficult to make a definitive assessment of psychopathology in the context of such significant alcohol misuse, he describes symptoms, some of which are pathognomonic of post-traumatic stress disorder. He also has significant mood symptoms and periods of suicidal ideation.
I suspect in the final analysis he probably has an underlying post-traumatic stress disorder but a definitive diagnosis cannot be made until he has had a period of sobriety. The most pressing clinical issue is his problematic drinking. His alcohol use appears to be the factor that has deteriorated since the incident in 2007. He attributes much of his drinking behaviour to attempting to abolish the symptoms of anxiety, which were most prominent following a serious road-rage incident in 2009 in the course of his employment.
Mr Wilson told the tribunal that after his visit with Professor Robertson, he attempted to reduce his alcohol consumption. This is corroborated by the opinion expressed by Professor Robertson in his second report dated 20 June 2013 in which Professor Robertson stated as follows:
I am pleased to note that your client has significantly attenuated his alcohol use and that his use of alcohol appears to be within a healthy target range. It is clear that there is underlying post-traumatic stress disorder which has become more clinically apparent now that his alcohol use has abated and his presentation is now of chronic post-traumatic stress disorder, related in part to the road rage incident but more significantly to the subsequent motor vehicle accident which figures prominently in his re-experiencing phenomenon.
Professor Robertson was asked about Mr Wilson’s percentage of whole person impairment and responded as follows:
Mindful of the impairment in activities of daily living outlined in the above report, and the fact that your client reacts excessively to ambient stressors, exhibits a lack of conscience-directed behaviour at times and has minor distortions in thinking. This constitutes 10% permanent impairment.
Dr Rees reassessed Mr Wilson on 9 October 2013. In her report of 17 October 2013, she opined:
In my opinion his psychiatric symptoms are best met by a diagnosis of an Adjustment Disorder with Anxious and Angry Mood. He reports distress about the road rage incident in 2009 and then the motor vehicle accident last year but there is also stress related to his chronic pain problems related to his son being in gaol and his divorce.
She further noted as follows:
In my opinion he is suffering from an Adjustment Disorder with Anxious and Depressed Mood which waxes and wanes and related originally to stress from the road rage incident and then the motor vehicle accident last year and there have been some problems with claustrophobia, which in my opinion have improved. There is ongoing stress with chronic pain related to multiple physical problems and stress with his son being in gaol and a recent divorce, all of which would have contributed to the Adjustment Disorder.
In my opinion there is no evidence of significant Posttraumatic Stress Disorder. There is however evidence of Alcohol Dependence which is not in full remission; it has however improved since I last saw him and it appears that his drinking was much heavier than he had originally admitted. In my opinion it is likely to have been a long-term problem which then worsened when his wife left him but was occurring prior to this also.
In response to the question about Mr Wilson’s overall percentage of whole person impairment, Dr Rees assessed his impairment as 10%. When asked to assess the percentage of whole person impairment arising “solely from work related factors” and from “non work related factors”, Dr Rees responded as follows:
In my opinion if a Whole Person Impairment assessment had been conducted prior to 2009 there would have been minor distortions of thinking if not reactions to stresses of daily living with minor loss of personal and social efficacy back then. I would suggest therefore that the Whole Person Impairment should be assessed at 5% at least for non-work related factors including prior to the road rage incident in 2009 and therefore Whole Person Impairment for solely work-related factors would be 5%.
Mr Wilson provided an outline of his evidence dated 10 March 2014. In his outline Mr Wilson stated that since the attack in April 2009 he felt anxious all the time. He felt like crying and had suicidal thoughts. He continued to regularly have flashbacks of the attack. Before the attack he was fun, liked everyone, liked to carry on with his friends and enjoyed life. He now no longer has much of a social life. He goes to the local pub with his friends on Saturdays but otherwise keeps to himself through the week. He was very wary of strangers and found it difficult to attend functions. He had missed out on important family events like his son’s engagement party and his mother’s 80th birthday. He regularly suffers from mood swings which did not happen before the attack. Before the attack he went to work to earn a living but since the attack he feels he needs to go work to feel safe with his work colleagues.
Mr Wilson stated that he found it very difficult to do the same activities he used to do before the attack. For example, due to his anxiety, he could not take public transport or be in a car for too long. Because his mother’s house was eight hours away, he was no longer able to drive to see her. According to Mr Wilson, prior to the attack he used to play rugby league, jog, swim, play golf and socialise with his friends and family on a regular basis. While he continues to swim and to see his friends on Saturdays he was no longer able to undertake other interests and hobbies. Mr Wilson stated that he would like to return to play golf but because he was anxious around strangers, golf stressed him. He found it difficult to visit his son in gaol because of his claustrophobia. Mr Wilson stated that after the attack begin to suffer from mood swings. Mr Wilson recounted an incident in November 2010 where he and his wife went to his school reunion about 700 kilometres away. On Mr Wilson’s account it got to a point where his wife could not handle him and she left him stranded at the reunion. There were further difficulties between him and his wife because he liked to sleep with the door open and his wife liked to sleep with the door shut. This caused difficulties between them. He also had disturbed sleep. His marriage broke down in 2012. He was devastated by this.
Dr Rees gave oral evidence that at the time of the first report, Mr Wilson told her he had been drinking about 40 schooners a week, with two days off, but “a few years ago” he would have been drinking an average of 15 to 20 beers a week. Dr Rees said she had the impression this was before 2009 because she made a diagnosis of substance dependence over time. According to Dr Rees, in her clinical experience it was not common for someone to develop a level of alcohol dependence so acutely. Relevantly, Dr Rees gave the following evidence when asked about the basis of this opinion:
Mr Dodd: How did you come to the opinion that before 2009 there would’ve been minor distortions of thinking in your report of October 2013?
Dr Rees: Because he was drinking excessively and that would imply, as I said to you, that it’s a huge probability that he would’ve had problems with his mental health to be drinking that excessively, for the reasons I’ve just outlined.
Mr Dodd: Although in a situation where the only history you took was for the few years before 2012?
Dr Rees: M’mm.
Mr Dodd: Is that right?
Dr Rees: Well, a few years is a grey term, I agree, so my understanding was that it was a few years. I don’t know whether I meant 10 years, 20 years. Most people that drink like that have drunk like that for a long time.
Mr Dodd: You don’t know whether he was drinking full strength beer or light strength beer?
Dr Rees: No. When I put beer I mean beer, not light beer, because he also made the reference to the fact that when he was trying to cut down his drinking that he then tried to drink light beer, but that that wasn’t socially acceptable in a club. So I would’ve made the assumption that the fact that he said he was cutting down to light beer, that his normal type of beer that he preferred to drink was full strength beer.
Mr Dodd: So this is just another assumption on your part, is that right?
Dr Rees: No, not an assumption. I think there’s reasonable evidence for that, from what he told me.
Mr Dodd: And what distortions of thinking do you think he had back before 2009?
Dr Rees: Well, related to anxiety and worry. Well he had a – – –
Mr Dodd: What did he tell you he was worried about before 2009?
Dr Rees: Well, I formed the opinion that if you’ve got a son that’s gone to gaol that that didn’t just suddenly happen that he suddenly went to gaol. There were likely to have been problems for some time leading up to that, so that would’ve been causing him worry and anxiety.
Dr Rees reported that when Mr Wilson saw Professor Robertson for the second time his alcohol consumption had abated but by the time he saw her again in October 2013, this was not the case. Dr Rees described Mr Wilson as having a “chronic alcohol problem” characterised by the fact that his alcohol use would wax and wane depending on what was going on in his life. When questioned about this, Dr Rees explained as follows:
… When his wife left him he was drinking 40 schooners instead of the 20 whatever because he was more stressed, so I think that – my opinion was that he had underlying alcohol issues anyway, and then all these different stressors are coming on board and then he’s drinking more at those times, but there’s been an underlying substance abuse going on, regardless of that and then it escalates at the times when the different stressors have occurred, either the work related ones or the non-work related ones.
When pressed about the basis for her opinion that it was likely Mr Wilson had a longstanding drinking problem prior to 2009, Dr Rees observed that Mr Wilson’s gout and his gastric ulcers were indicators of long-term alcohol dependence.
Dr Rees explained her process of reasoning in concluding that Mr Wilson had sustained 5% whole person impairment as follows:
Mr Dodd: Have you approached it this way, doctor, in that you’ve come to a view that his whole personal impairment should be assessed at 5 per cent but from that should be deducted 5 per cent for pre-existing or subsequent causes?
Dr Rees: In my first report I gave him an assessment of 5 per cent but when I saw him the second time I actually decided that it was 10 per cent based on the information that he gave me.
Mr Dodd: Certainly?
Dr Rees: And then I have taken this process of looking at prior to the workplace instance in 2009. There was a whole person impairment of 5 per cent. So, then I deducted the 5 per cent from that 10 per cent and, therefore, come up with an overall 5 per cent. Does that make sense?
Mr Dodd: In respect of work-related causes, is that what you’re saying?
Dr Rees: Yes.
Mr Dodd: Thank you.
Dr Rees: So, the overall final amount of 5 per cent is work-related causes and there’s 5 per cent taken off for non-work related.
Mr Dodd: And in doing so, doctor, you’ve taken off as part of that 5 per cent a factor for matters prior to 2009; is that right? That’s what it says in your report?
Dr Rees: I’ve said non-work related factors. They’ve not all happened prior to 2009.
Mr Dodd: No, but that’s one of them, is that right?
Dr Rees: Sorry, can you ask that again?
Mr Dodd: That’s cut off the 5 per cent that you’ve deducted is in respect of matters occurring before 2009?
Dr Rees: Well, the matters that are non-work related, let me just go through it, are the marriage breakdown, which happened after 2009; the gaoling of his son, which I think is just after 2010, I think that is; and then the alcohol dependency is the main thing that we’ve been debating about, how pre-existing was that prior to 2009 and I’ve been trying to get across the point that I think this gentleman has a longstanding alcohol problem, which has waxed and waned over time depending on stressors in his life, yes.
Mr Dodd: Firstly, there’s obviously no relationship between his work accident and his son going to gaol?
Dr Rees: Yes.
Mr Dodd: But we’ve already discussed a relationship potentially between the work accident of 2009 and an increase in the amount of alcohol he was consuming; do you agree with that?
Dr Rees: Yes.
Mr Dodd: So, is this the case, doctor, that one of those factors that you’ve discounted, indeed, has, in part, been caused by what occurred in 2009?
Dr Rees: I’m going in a circle a bit with that. Can you maybe word that a little bit differently so I know exactly what I’m answering, yes.
Mr Dodd: In terms of non-work related factors, we’ve been discussing his alcohol usage?
Dr Rees: As one of them, yes.
Mr Dodd: And, in your view, he had excessive alcohol usage before 2009?
Dr Rees: M’mm.
Mr Dodd: And you’ve excluded alcohol usage overall, is that right, from assessment of this man’s whole person impairment in respect of his work injuries as opposed to non-work related factors?
Dr Rees: No, I’ve said in question, and the fourth line, I said, “In my opinion the alcohol problems, his wife leaving him are not certainly related to the road rage motor vehicle accident last year.”
Mr Dodd: Thank you, doctor. So, is this the case that in your view the alcohol problems and his wife leaving him, if not solely related, might have been partially related to the road rage incident?
Dr Rees: Yes, I think they would have been contributing. His change in behaviour after the road rage incident would have been factors that may have – that’s what he told me is that his wife wasn’t happy with his behaviour and that pushed their relationship over the edge and she then left him. He also said that he drank more because he was so stressed from the road rage incident.
Mr Dodd: Thank you, doctor. So, putting aside the word ‘solely’, then those factors, that is the alcohol usage and his marriage breakdown, were, in your view, related in part to the road rage incident of 2009?
Dr Rees: The alcohol consumption, as reported by Mr Wilson has worsening, related to the road rage incident and then the motor vehicle accident. I put the two together, as I said, at the beginning.
Mr Dodd: Thank you?
Dr Rees: Yes.
Mr Dodd: So, doctor, when it gets to your paragraph just above the box at the bottom of page 8, you make an assessment of whole person impairment for solely work-related factors of 5 per cent in the way that you’ve described, 10 minus five is five; is that right?
Dr Rees: Yes.
Dr Rees was cross-examined about whether factoring in Mr Wilson’s alcohol problems arising from his marriage breakup was work-related would change her assessment and she responded as follows:
Mr Dodd: And the doctor, if we were to factor back in those elements of additional alcohol problems and his wife leaving him as being factors, that would change that calculation; is that correct?
Dr Rees: Not significantly. Perhaps 1 per cent maybe, not significantly. You have to go with either 5 per cent or 10 per cent, so it would still get rounded down to 5 per cent.
Mr Dodd: You’re then looking at how the tables working from zero to five or 10?
Dr Rees: Sure. Yes, I’m just trying to give you my mind and where I’m falling. I’m trying to explain how it would still come back to 5 per cent because what I’m saying is I really think it might push up a little bit but not enough to then get up to choose a 10 per cent option I think.
Dr Rees was asked to make a number of assumptions about Mr Wilson’s history and his symptoms and was asked whether she would have concluded that not only did Mr Wilson have minor disturbances of thinking but he had a number of reactions to stresses of daily living with minor loss of personal or social efficacy. Dr Rees queried the assumptions on the basis that they were inconsistent with the history she said had been given to her by Mr Wilson but nonetheless agreed that if this history was correct, Mr Wilson would have satisfied the 10% threshold for whole person impairment. Those assumptions included the matters set out in Mr Wilson’s outline of evidence.
Professor Robertson reassessed Mr Wilson on 12 September 2014 and prepared a report that day. He was asked to distinguish between the effects of two psychological injuries, the first being the road rage incident in April 2009 and the second being the motor vehicle accident in August 2012. Professor Robertson opined on Mr Wilson’s mental state from April 2009 to August 2012 and after August 2012, being the date of the motor vehicle accident. He concluded as follows:
Having had the opportunity to reconsider the information, it is clear that Mr Wilson consumed alcohol in an unhealthy pattern in the period prior to 2009, however the escalation of his drinking followed the accepted psychological injury led to the development of alcohol dependence with a serious constellation of behavioural and physical disturbances. The clear improvement in his consumption of alcohol in the period in between my two assessments enabled the symptoms of post traumatic stress disorder to become more clinically apparent. This conforms to a clinical picture one sees frequently with co-morbid alcohol abuse in post-traumatic stress disorder.
Assessments of disturbances of mental state at any given point are by nature qualitative and therefore extrapolation of this into quantification, particularly of what percentage of impairment can be attributed to different events, is a flawed process. However, it is evident that the escalation in Mr Wilson’s drinking activity became most apparent following the accepted psychological injury and that the trajectory of this disorder was disturbed further by the second injury in August 2012.
It is clear that there was extant problem drinking in the period immediately prior to the April 2009 incident.
Professor Robertson assessed Mr Wilson as having a 10% whole person permanent impairment on the basis that:
Mr Wilson tends to react excessively to stressful situations in the community and at times exhibits a lack of conscious directed behaviour through avoidant or irritable outbursts and also has minor distortions of thinking that are consistent with the observation of post traumatic stress disorder.
He made this assessment based on the observations recorded in his report, which were in turn based on information provided to him by Mr Wilson. These observations can be summarised as follows:
(a)In the period following the April 2009 incident Mr Wilson’s consumption of alcohol escalated to the point where he drank alcohol daily. He would usually take his first drink as soon as he ceased a day’s work and on weekends he would start drinking at 10 am;
(b)Mr Wilson made no attempts to cut down on his drinking until he consulted with psychologist, Thomas O’Neill, in March 2010;
(c)Mr Wilson’s alcohol consumption seemed to have caused significant disruption to his social behaviour and on several occasions he became involved in heated disagreements with workmates and family. This was illustrated by circumstances leading to his mother’s 80th birthday in which Mr Wilson’s family “beseeched” him to refrain from consuming alcohol heavily at the function;
(d)Mr Wilson perpetrated a number of what would commonly be referred to as “drink and dial” incidents in which he would make telephone phone calls whilst intoxicated and become verbally abusive. This behaviour spilled over into arguments with his wife who ultimately left the marriage in March 2012 citing his mood swings;
(e)Mr Wilson avoided his mother’s birthday party but visited her later. There was an altercation with his wife and he was forced return to Sydney by himself;
(f)Mr Wilson claims he is in constant fear for his safety and he was aggrieved at the conduct of his employer;
(g)In the period immediately preceding the breakdown of his marriage in March 2012, Mr Wilson said that he was guilty of various instances of aggressive behaviour towards his wife, manifesting as verbal abuse and threats of violence;
(h)The arrest of Mr Wilson’s son was in 2008. His son was released on bail prior to the road rage incident in April 2009 and at this stage, Mr Wilson believed there was a reasonable prospect of either acquittal or conviction of a lesser offence. His son was convicted on in May 2011 and was sentenced to 16 years with a 10 year non-parole period. Mr Wilson specifically denied that his alcohol use escalated in the period following his son’s arrest and/or conviction;
(i)Mr Wilson sought to clarify the nature of his post-traumatic mental health in the period following the motor vehicle accident. Professor Robertson had stated in his second report that the dominant theme in Mr Wilson’s intrusive symptoms, particularly his nightmares, related to the motor vehicle accident in 2012. During the examination in September 2014 Mr Wilson sought to “modify” his statement by stating that the content of his intrusive symptoms varied between the April 2009 injury and the subsequent motor vehicle accident.
Professor Robertson concluded that Mr Wilson was independent in self-care and his communication, sensory function and hand function was unaffected by his accepted psychological injury. Mr Wilson’s physical activity was restricted due to his underlying physical injuries but his driving was affected, with anxiety and he often avoiding heavy traffic. He concluded that Mr Wilson had apprehension in relationships, interpersonal anxiety, periods of irritability and his sleep was disturbed with nightmares. Professor Robertson also concluded that Mr Wilson avoided crowded situations due to phobic anxiety and was disengaged from socialisation. He therefore met three of the criteria listed in Table 5.1 of the Guide for permanent impairment in the range of 5 to 10% and accordingly fell within the 10% threshold set out in the Table.
Mr Wilson was cross-examined on his outline of evidence and the information he had provided to Professor Robertson and other doctors. Because this was said to be critical to Professor Robertson’s opinion, it is useful to summarise this evidence.
Mr Wilson was questioned about the impressions that were said to have been created in his statement that he no longer undertook sporting activities because of his psychological injuries. Mr Wilson confirmed that he had given up playing football and jogging many years ago but continued to swim. One of the main reasons he had given up golf was because of his shoulder and neck injury, not his psychological injury. Mr Wilson was also cross-examined about his evidence that he socialised less after the April 2009 incident. He agreed that he continued to socialise with his friends on a regular basis, particularly on Saturdays. He continued to go to the local club. He said that when he was married, his wife controlled his spending and only gave him about $70 a week. This controlled his drinking and gambling habits. Mr Wilson denied he had a drinking problem prior to April 2009. He said that he met his wife in 2001 and things were different after this. She was his rock and helped him through his problems. His consumption of alcohol escalated after his wife left him. He said that he used alcohol to ease his pain.
When asked about why he had not gone to his mother’s birthday party, Mr Wilson denied that it was because his family had asked him not to drink. He said that his sister did not like his wife and his wife had decided not to go. Mr Wilson said he could not go to his mother’s house by himself because of the long drive. When questioned about the reasons why he found it difficult to drive long distances, Mr Wilson said it was because of back pain from sitting too long. He was questioned about the conflict between him and his sister. Mr Wilson said that the main conflict was that his sister criticised him for drinking. His sister was a non-drinker and she was concerned he would be like their father, who was a drinker. Mr Wilson said that the fact his son was in prison and had been gaoled for a minimum of 10 years did not cause him anxiety. He believed his son was innocent and would succeed on his appeal. Mr Wilson was questioned about why the history of having nightmares after the April 2009 incident related to Professor Robertson had not been referred to in his discussions with Dr Brown and Mr O’Neill. Mr Wilson said that the other doctors did not ask him questions about the nightmares and that was why he had not specifically referred to them. It was put to Mr Wilson that the nightmares had only arisen after the motor vehicle accident. He denied this.
After the separation from his wife Mr Wilson had a relationship with another woman. They lived together for about six months. He has met a couple of ladies through an online dating website and had another brief relationship with a woman earlier in the year. They broke up after three months. Mr Wilson agreed that he continued to socialise with his friends at the club and attempted to meet other women after the breakdown of his marriage but said that these relationships broke down quickly. He was hoping he and his wife would reconcile.
Professor Robertson was cross-examined on his reports at length. He said that when he spoke to Mr Wilson in June 2013 he formed the impression the motor vehicle accident in 2012 had the most significant effect on Mr Wilson’s functioning but when he saw Mr Wilson in September 2014, Mr Wilson spoke more about the road rage incident. Professor Robertson said that Mr Wilson’s history and diagnosis was “a mess” and it was therefore difficult to attribute permanent impairment to a particular event or condition. There was evidence Mr Wilson had problems with drinking prior to 2009. Furthermore, there had been two major traumatic incidents at work and personal dramas in his life. Alcohol dependency can be exacerbated by trauma. Professor Robertson concluded that Mr Wilson had whole person impairment of 10% because there was evidence he was experiencing minor distortions of thinking, he overreacted to stresses of daily living and had a lack of conscious directed behaviour. He also concluded that this impairment had resulted from the road rage incident.
Professor Robertson was asked whether he would change his opinion if there was evidence that there had been no acceleration of alcohol consumption following the incident of April 2009 and that Mr Wilson had not experienced nightmares until July 2013. He agreed this could “challenge” his assessment. He also agreed that his opinion was heavily reliant on the truth of what he had been told by Mr Wilson, including what Mr Wilson said about the difficulties with his social activities, claustrophobia and the relationship with his wife. However, he did not feel Mr Wilson was over-emphasising the effect of the April 2009 incident at the third examination but simply attempting to be clearer with his history about the events.
Professor Robertson was asked about the long-term effects of alcohol consumption on the mental health and functioning of a person. He said there could be long-term effects where there had been alcohol abuse over decades. He was also asked to opine on Dr Rees’ conclusion that 5% of Mr Wilson’s whole person impairment related to the pattern of his alcohol consumption before 2009. Professor Robertson was referred to the reports about Mr Wilson being sent home from work in 1997, 1998 and 1999 because of concerns about him consuming alcohol. Professor Robertson said that this would suggest Mr Wilson’s drinking problems at this time were “severe” which would favour Dr Rees’ view. However, he noted it was possible for a person to attenuate their drinking after abstinence for a period.
In conclusion, Professor Robertson said that the question of causation relating to Mr Wilson’s permanent impairment was complicated. There could be a number of contributing causes for a psychological condition and impairment. In this case there were multiple causes but in his view the events of 2009 were a material contributing cause.
CONDUCT OF THE HEARING
Prior to the hearing, directions were made about the filing of evidence from Mr Wilson and statements of facts, issues and contentions to identify the critical issues in dispute between the parties. I also made a direction that the parties confer and file an agreed statement of issues which was to be lodged with the tribunal prior to the hearing. The parties did not file an agreed statement of issues, principally because counsel for Mr Wilson was not available to confer prior to the hearing. However, at the commencement of the hearing, counsel for Mr Wilson gave an opening to the effect that the parties had conferred just prior to the commencement of the hearing and they agreed the case would primarily focus on the medical evidence and legal issues. According to counsel for Mr Wilson, there was little disagreement between the experts about the degree of Mr Wilson’s permanent impairment but there was a flaw in the report of Dr Rees which was fatal to Australia Post’s case. Dr Rees had assessed Mr Wilson’s impairment by reference to a pre-existing condition and had made a deduction of 5% from her assessment of the degree of whole person impairment. This was impermissible. There were no significant factual matters in dispute. On this basis, Mr Wilson’s outline of evidence was tendered without objection and there was limited cross-examination of Mr Wilson by counsel for Australia Post.
During the hearing it emerged that the controversy between the experts and the history given by Mr Wilson was more complicated than originally anticipated. Counsel for Mr Wilson cross-examined Dr Rees extensively about the basis for her report and asked her to make certain assumptions and to opine on those assumptions about the percentage of permanent impairment said to arise from Mr Wilson’s accepted psychological injury in 2009. He also sought to elucidate further oral evidence from Professor Robertson about his opinion, having regard to the fact that his second report made an assessment of the degree of permanent impairment based on the impact of both the 2009 incident and the 2012 motor vehicle accident. It was conceded that the evidence of Professor Robertson, as it stood at the time of the second day of the hearing, did not support Mr Wilson’s case. This should have been apparent prior to the commencement of the hearing and certainly at the time of the last directions hearing, which was approximately one month before the hearing. Counsel for Australia Post objected to any further oral evidence on the basis that the case had been prepared in response to the evidence and statement of facts, issues and contentions filed by Mr Wilson (or on his behalf). Accordingly, Australia Post may be prejudiced and this would be unfair and a denial of procedural fairness.
I accepted this submission. Clearly to allow Mr Wilson to significantly alter his case at such a late stage of the proceedings may have disadvantaged Australia Post if it did not have the opportunity to consider its position, respond, file further evidence if necessary and cross-examine Mr Wilson. However, I also accepted the submission that the inadequacies in the case and, in particular the way it was presented, had the potential to significantly impact and prejudice Mr Wilson’s claim. Counsel for Mr Wilson conceded that this was an error by Mr Wilson’s advisers and not of Mr Wilson’s making.
This raised consideration about whether the matter should be adjourned to allow Mr Wilson to file and serve supplementary evidence from Professor Robertson, to which Australia Post would be given the opportunity to respond.
Australia Post objected to this course but could not point to any prejudice, other than delay and the costs that had been incurred and thrown away that would be occasioned by the adjournment. For his part, counsel for Mr Wilson conceded he could not oppose any adverse costs order made in the event Mr Wilson succeeded in his claim. The tribunal does not have a general power to make orders in respect of costs and can only make orders in the limited circumstances as prescribed in the Act. As such, Australia Post has limited recourse against the failure of Mr Wilson’s legal advisers to properly and adequately consider the preparation of his case. The unfairness of adjourning the matter to allow Mr Wilson to obtain further evidence from Professor Robertson was a submission forcefully made by counsel for Australia Post. I have considerable sympathy with this submission.
Section 2A of the Administrative Appeals Tribunal Act1975 (Cth) provides that, in carrying out its functions, the tribunal must “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”. Taking into account these objectives and the circumstances of the case, I decided to allow a brief adjournment for the limited purpose of obtaining further evidence from Professor Robertson, directed that any further report be served a week before the resumed hearing and provided Australia Post with the opportunity to call Dr Rees to give any evidence in response at the hearing. I also directed Mr Wilson to file and serve an amended statement of facts, issues and contentions. While the adjournment and directions provided Australia Post with procedural fairness in allowing its advisers time to consider and respond to the case being advanced by Mr Wilson, I accept there is an element of unfairness in adjourning a matter to allow for further evidence when the defect may not be able to be adequately addressed by adverse costs orders. However, to disallow further evidence on what was identified as a critical issue would be disproportionately unfair to Mr Wilson when it was common ground his lawyers were at fault.
SUBMISSIONS OF THE PARTIES AND QUESTIONS FOR DETERMINATION
There is no dispute Mr Wilson has a psychiatric condition or that he has 10% permanent impairment based on his psychiatric condition. The question is whether his impairment resulted from the road rage incident in 2009.
Counsel for Mr Wilson submitted that there is evidence the road rage incident was a material contributing cause. This is enough to establish liability under s 24 of the Act. There is evidence from Professor Robertson that this is the case. The evidence of Dr Rees, insofar as she assesses Mr Wilson’s impairment at 5%, should not be accepted because she has impermissibly sought to assess Mr Wilson’s work-related impairment by assessing his pre-existing impairment and deducting this assessment from his current whole person impairment. Three psychiatrists have reviewed Mr Wilson and taken his history. Counsel accepted that Mr Wilson may have made inconsistent statements in his evidence but ultimately there was no dispute he had a psychiatric condition which he had had for some time. The tribunal must decide whether, on the balance of probabilities, Mr Wilson has at least 10% whole person permanent impairment and whether the 2009 incident materially contributed to this impairment. The evidence of Professor Robertson supports his case.
Counsel for Australia Post submitted that the injury must “result in” permanent impairment, not just be a material contributing cause. Section 24 of the Act requires the decision maker to undertake two steps. First, the decision maker must decide whether the person suffered an injury arising out of, or in the course of, their employment. If a work-related incident materially contributes to the injury, then this will be sufficient nexus between the incident and the injury for the purposes of s 5A of the Act. Secondly, the decision maker must decide whether the injury results in permanent impairment. This connotes that there must be something more than material contribution. The decision maker must identify and assess the impairment that is referable to the injury. The injury must therefore be the sole cause for the impairment.
Australia Post submitted that the preponderance of evidence is that Mr Wilson increased alcohol consumption after his wife left him, not after the 2009 incident. There is also evidence that Mr Wilson has had longstanding alcohol dependency and it is likely this contributed to permanent impairment. In this regard, Australia Post relies on the evidence of both Dr Rees and Professor Robertson. Mr Wilson’s evidence about the effect of the 2009 accident should not be believed. He was “gilding the lily”. Mr Wilson did not have nightmares, increase his alcohol consumption or stop socialising. He continued to work without any time off work. Mr Wilson may have permanent impairment but he has not established, on the balance of probabilities, that this impairment meets or exceeds the 10% threshold. Professor Robertson has formed his opinion on the basis of information provided to him by Mr Wilson but conceded his opinion could be “challenged” given the different history provided by Mr Wilson at the hearing.
The critical issue for determination is therefore whether Mr Wilson’s accepted psychological injury in 2009 resulted in permanent impairment of at least 10% based on Table 5.1 of the Guide.
CONSIDERATION AND FINDINGS
According to the High Court in Canute v Comcare (2006) 226 CLR 535, s 24(5) requires attention to focus on the degree of permanent impairment resulting from an injury. Each injury suffered by an employee requires separate assessment of the degree of impairment. As such, it is not appropriate to aggregate impairment resulting from the 2009 and 2012 incidents to assess Mr Wilson’s permanent impairment for the purposes of s 24(1). Both Professor Robertson and Dr Rees took this approach in their earlier reports and to the extent they expressed an opinion about Mr Wilson’s impairment based on this assessment, their opinions did not relevantly address the critical issue for determination. This is not in dispute.
The parties rely on the comments of Buchanan J in Jordan and accept that s 24 requires the decision maker to attempt to “isolate” compensable effects from effects of an underlying or non-compensable condition when making an assessment about permanent impairment. As observed by Buchanan J at [26]:
The Act and the guide only contemplate and direct that a value will be assigned to the degree of permanent impairment arising from an “injury”.
In her second report, Dr Rees made an assessment of the degree of Mr Wilson’s permanent impairment by taking a number of factors into account, including an underlying condition that she diagnosed as alcohol dependency, which she opined pre-dated the April 2009 incident. Dr Rees assessed Mr Wilson’s impairment from this underlying condition by reference to Table 5.1 as 5% and deducted this from her assessment of Mr Wilson’s whole person impairment to arrive at the percentage impairment for work-related factors. Dr Rees explained this reasoning process in her evidence. This does not assist the tribunal in determining the degree of Mr Wilson’s permanent impairment resulting from a compensable injury. This is not in contest.
In his third report, Professor Robertson noted the difficulties in attributing a percentage of impairment to different events but concluded Mr Wilson had 10% permanent impairment “arising from the psychological injury that occurred in April 2009”. In his oral evidence Professor Robertson said that the 2009 incident was a material contributing cause of Mr Wilson’s permanent impairment.
Counsel for Australia Post submitted that this was not enough. This was similar to the submissions made by Australia Post in Jordan, in which Australia Post contended that a relevant injury must be wholly related to work. In dealing with this submission, Buchanan J stated at [30]:
To the extent that the submission invokes the definition of “injury” earlier set out and its associated effect on s 24 and the guide, it is clearly correct. However, neither the Act nor the guide exclude the possibility that some impairment might result from the combined effect of an underlying condition and a work-related aggravation of that condition. In those circumstances it is, strictly speaking, only the work-related aggravation which is compensable. The guide directs that, “where it is possible”, the compensable effects of any work-related aggravation should be isolated from the effects of the underlying condition for the purpose of assessing the degree of permanent impairment due to compensable effects. That may be easier said than done. If it is not possible the assessment made should operate beneficially to the claimant: see Martin at [29]-[30].
In rejecting the approach of the tribunal of discounting the percentage of whole person impairment to take into account a pre-existing degenerative condition, Buchanan J stated at [32]:
The guide directs the compensable effects be isolated “where it is possible”. As already observed, where that is not possible no discount, to the disadvantage of the claimant, of the effects of the work-related injury will be permissible.
In Jordan, there was an issue about aggravation of a pre-existing degenerative condition. There is no such allegation in this case. According to Professor Robertson, there is evidence Mr Wilson consumed an “unhealthy” level of alcohol prior 2009. Dr Rees goes further and concludes there is evidence he had long-standing alcohol dependency. Neither doctor suggests the 2009 incident aggravated underlying alcohol dependency. However, much of the controversy during the hearing focussed on the extent to which non-work related issues and the 2012 accident contributed to Mr Wilson’s permanent impairment. Counsel for Mr Wilson submitted that there was no evidence of excessive alcohol consumption in the 10 years prior to the 2009 incident and that Mr Wilson’s alcohol consumption escalated following the April 2009 following the incident. This led to further problems, including the breakdown of Mr Wilson’s marriage. In contrast, Counsel for Australia Post submitted that there was evidence Mr Wilson had alcohol dependency prior to April 2009, his alcohol consumption did not escalate until his marriage broke down and therefore Mr Wilson’s permanent impairment did not result from the April 2009 incident.
While the parties, and their experts, take different views about the nature and extent of Mr Wilson’s alcohol consumption prior to 2009, both appear to agree Mr Wilson had a predisposition for alcohol dependency. This is not, in itself, fatal to Mr Wilson’s claim but it makes assessment of the permanent impairment attributable to the April 2009 incident complicated. The position is further complicated by the fact Mr Wilson has a number of other personal factors affecting his mental health as well as the psychological impact from the 2012 accident. Notwithstanding these multifaceted factors, the question is whether the psychological effects of the April 2009 incident resulted in at least 10% permanent impairment. In making this assessment, it is not appropriate to focus on the effects of the non-work related or non-accepted injury and discount those. According to Buchanan J, the critical task of the decision-maker is to isolate the effects of the accepted psychological injury “where it is possible” and assess their impact on the psychological functioning of the claimant by reference to the criteria in the relevant table in the Guide. If this is not possible, the assessment should operate beneficially to the claimant (refer also Martin v Australian Postal Corporation [1999] FCA 655). Because it is difficult to isolate the impact of various factors, it is superficially attractive to adopt the approach taken by Dr Rees but this would be in error. Accordingly, I do not accept the submission of Australia Post that unless there is evidence the psychological injury arising from the April 2009 solely or wholly contributed to the permanent impairment, Mr Wilson must fail. Nor do I accept the submission of Mr Wilson that all he needs to establish is that the accepted psychological injury was a material contributing factor.
The exercise is more complicated than this. The initial step is to assess the effects of the accepted psychological injury then identify whether these effects meet the relevant criteria in Table 5.1. Both steps may be impacted by multiple factors, some work-related, some not. There nonetheless must be a sufficient causal connection between the injury and the factors that meet the Table 5.1 criteria. The emphasis is on whether the effects can be isolated and measured. If they cannot, according to Jordan and Martin, the claimant should be given the benefit of the doubt.
I accept that there is evidence Mr Wilson had serious alcohol dependency issues between 1997 and 1999. However, there is insufficient evidence to establish whether those problems were ongoing between 1999 and April 2009. On balance, the evidence suggests otherwise. Australia Post has not provided any evidence of alcohol-related work incidents after 1999, nor do the medical records produced support such a finding. I therefore find that while Mr Wilson had serious problems between 1997 and 1999, has a pre-disposition for alcohol dependency and was drinking at unhealthy levels prior to April 2009, there is no evidence to support Dr Rees’ diagnosis of longstanding alcohol dependency and abuse. The fact Mr Wilson had gout, stomach ulcers and a father who drank does not establish Mr Wilson had longstanding alcohol dependency, as opposed to regular alcohol consumption, prior to April 2009. I accept Mr Wilson’s evidence that his drinking was regular but controlled prior to the 2009 incident.
However, it is relevant to note that there was significant conflict in the evidence about Mr Wilson’s alcohol consumption after April 2009. Mr Wilson gave evidence to the effect that his wife tightly controlled his finances but after they separated his alcohol consumption escalated to excessive levels. Yet at the interview with Professor Robertson in September 2014 he said his consumption of alcohol escalated following the 2009 incident to the point where he drank alcohol daily and he made no attempts to cut down his drinking until he consulted with Thomas O’Neill in March 2010.
It is difficult to reach any concluded view about why Mr Wilson’s marriage of nine years broke down. He attributes it to mood swings. He told his general practitioner it was because of his drinking and gambling, yet his evidence was that drinking was not the problem until after his wife left. There is no evidence from Mr Wilson’s former wife about the reasons for the marriage breakdown but clearly this had a significant impact on Mr Wilson’s mental health.
In his evidence to this tribunal, Mr Wilson was careful to down play the impact of his drinking and his son’s imprisonment on his mental health. Mr Wilson sought to emphasise the impact of the April 2009 incident in his outline of evidence but accepted he had overstated the position in cross-examination. In the information he provided to Professor Robertson, Mr Wilson also sought to emphasise the impact of the April 2009 incident in contrast to the impact of the 2012 accident. Australia Post submitted that Mr Wilson’s history was critical to Professor Roberson’s opinion. Relevantly, Professor Robertson changed his opinion based on his reassessment of and discussions with Mr Wilson in September 2014.
Professor Robertson’s evidence was based on his clinical assessment of Mr Wilson, his experience with patients that have experienced trauma and the history given to him by Mr Wilson. Taking into account the complexities of Mr Wilson’s history and some of the inconsistencies in Mr Wilson’s evidence, Professor Robertson nonetheless concluded that the April 2009 incident was a material contributing factor to Mr Wilson’s permanent impairment which he assessed at 10% by reference to Table 5.1 of the Guide. He explained the reason for the change in his opinion. I accept his evidence. He was a considered and experienced witness attempting to make an assessment about the effects of an injury when there were multiple factors that had the potential to impact on Mr Wilson’s mental health and his functioning.
In this case it is difficult to isolate and assess the impact of Mr Wilson’s accepted psychological injury because there are a number of factors that are active stressors for Mr Wilson. The critical question is not whether the 2009 accepted psychological injury “materially contributed” to the 10% permanent impairment identified by Professor Robertson and Dr Rees but rather whether it is possible to attribute at least two of the relevant criteria in Table 5.1 to the accepted injury. If the effects of the 2009 accepted psychological injury cannot be isolated and measured by reference to Table 5.1 of the Guide, then the issue should be resolved beneficially in Mr Wilson’s favour. The difficulty in the exercise is illustrated by the evidence of Dr Rees. For instance, in her second report Dr Rees expressed the view that if Mr Wilson had been assessed prior to April 2009, he would have had minor distortions in thinking and therefore would have been assessed as having permanent impairment of 5%. The inference being that this impairment could therefore not be attributable to the 2009 injury. First, I do not accept there is evidence to support such a finding. Secondly, the focus of this assessment is not on the compensable injury but rather on a non-compensable condition. That is not what s 24 and the Guide requires.
Mr Wilson continued to work after the 2009 incident and he has “gilded the lily” in some of his evidence about the impact of the April 2009 incident. It is clear that there are a number of things Mr Wilson does not do because of his physical rather than psychological injury. On his own evidence, Mr Wilson’s drinking did not escalate until his marriage broke down. Against this, it is accepted Mr Wilson has claustrophobia resulting from the 2009 incident and he reported anxiety to psychologists Ms Truong and Mr O’Neill nearly a year after the attack, well before his marriage breakdown and the 2012 accident. The puzzling part of the case is that the history related to Professor Robertson by Mr Wilson about his drinking was at odds with his evidence to the tribunal. Professor Robertson said there could be delayed onset of symptoms in trauma cases but frankly conceded his assessment could be “challenged” if the evidence was to the effect that there was no acceleration in Mr Wilson’s alcohol consumption or nightmares immediately after the 2009 incident. Taken as a whole, Professor Robertson’s evidence and opinion was finely balanced.
While the conflict in Mr Wilson’s evidence about his drinking impacts on the credibility of the history he has given, it is likely that the true position is somewhere between the two different accounts. Mr Wilson has embellished some of his evidence about the effects of the April 2009 incident but also minimised the extent of his alcohol consumption when giving oral evidence. This could be for a number of reasons. There was evidence from Dr Rees that people with alcohol dependency have little insight into the extent of their drinking problem. It may be that Mr Wilson believed this evidence would make his claim more difficult or that he was embarrassed to admit his problem when pressed. He may have given a false account to Professor Robertson in the belief it would advance his case but felt compelled to correct this on cross-examination.
Having had the opportunity to observe Mr Wilson closely and examine his evidence, I have not formed the view he is malingering or fabricating his symptoms about the effect of the April 2009 incident. I also note that Professor Robertson, who has interviewed Mr Wilson three times, was of a similar view. Mr Wilson may be exaggerating the impact but on any view the 2009 incident was violent and traumatic.
Because of the complexities of Mr Wilson’s various conditions and stressors, it is not possible to precisely isolate the effects of the 2009 accepted psychological injury from the impact of Mr Wilson’s non-compensable conditions when assessing his permanent impairment under the Guide. Accordingly, the assessment should be made beneficially to Mr Wilson. Having regard to all of the evidence I therefore find that the 2009 accepted psychological injury resulted in 10% permanent impairment.
CONCLUSION AND COSTS
I have found for Mr Wilson and therefore the appropriate order is to set aside the decision under review and substitute a decision that Australia Post is liable to pay Mr Wilson compensation pursuant to s 24(1) of the Act based on 10% whole person impairment.
The parties addressed on the question of costs. Counsel for Mr Wilson conceded that the applicant should not be entitled to costs thrown away for the first two days of the hearing but submitted that he otherwise should be entitled to recover his costs if he was successful in his application. Counsel for Australia Post submitted that Mr Wilson should not be entitled to any costs prior to the third report of Professor Robertson or indeed the last day of hearing when Professor Robertson’s evidence was fully tested and known. In Australia Post’s submission, Mr Wilson should not be entitled to costs until he brings a case that he can possibly win. It was relevant that Australia Post had declined Mr Wilson’s claim on the basis of the reports of Dr Rees and that there was nothing in the subsequent reports of Professor Robertson, including the second report, to challenge this decision. Unnecessary costs were incurred by Australia Post in the circumstances of this case it was not until the last day of the hearing when Professor Robertson, was cross-examined on his third report, that Australia Post and its advisers could have known about the evidence raised in support of Mr Wilson’s case.
Where a claimant is successful in review proceedings, namely, where the tribunal makes a decision that is more favourable than the reviewable decision, s 67(8) of the Act gives the tribunal the discretion to order that the costs incurred, or part of those costs, be paid. It is clear from the cases that the discretion is broad. In dealing with a costs order made by the tribunal taking into account the effect of a “Calderbank” letter of offer, in Perry v Comcare (2006) 150 FCR 319; [2006] FCA 33 Greenwood J stated at [90] – [91]:
[90] The Tribunal properly had regard to the letter of offer in exercising its discretion. That discretion was not fettered by any rule, policy or binding principle. The fundamental obligation of the Tribunal in the exercise of the discretion was to do justice between the parties according to its assessment of the circumstances of the case. Whether, in exercising the discretion, if conferred upon it, the Court might have taken a different view about the allocation of costs or circumstances influencing whether the respondent might be ordered to pay the costs or a part of the costs, is not to the point. The question of whether, in all the circumstances, the applicant acted reasonably is a question of fact to be determined by the Tribunal and it is not open to the Court to substitute its own view of those facts or the exercise of the discretion.
[91] The applicant has not demonstrated that the Tribunal acted upon grounds outside the purposes for which the Tribunal was entrusted with discretionary power and nor has the Applicant demonstrated that the Tribunal made an error of law in exercising the discretion by applying a wrong principle or having regard to irrelevant matters. For the reasons indicated at [87], the applicant has not demonstrated that the Tribunal failed to consider material facts which resulted in a decision which is unreasonable or plainly unjust. The decision on the facts was open to the Tribunal although minds might legitimately differ about the assessment of those facts. Accordingly, the exercise of the discretion has not miscarried and the Tribunal has not made an error of law in making the order for costs it made. [Emphasis added.]
In this case Mr Wilson made a claim for lump sum compensation under s 24(1). The claim was rejected on the basis of a report from Dr Rees. Ultimately I was not persuaded by her evidence but neither was I persuaded by the first and second reports of Professor Robertson. The problem with the reports is that neither doctor opined on the critical issue that required determination. The parties attempted to unsuccessfully grapple with the complexity of the issues in the early stages of the hearing but it was not until the third report and evidence of Professor Robertson that the issues in dispute and questions for determination became clear. This is most unsatisfactory. The issue was always going to be complicated, as evidenced by Professor Robertson’s evidence on the last day of the hearing, but these issues should have been identified at an earlier stage in the proceedings. This resulted in the request for an adjournment at the end of the second day of the hearing.
Taking into account these matters, I conclude that Australia Post should not be required to pay costs for the first two days of hearing and the first day of the resumed hearing. Insofar as there were costs incurred by Mr Wilson in filing his claim, preparing statements of facts, issues and contentions, amended statements of facts, issues and contentions and retaining Professor Robertson, I find that those costs should be recoverable as they most likely would have been incurred in any event. The discretion in s 67(8) should not be used to punish a party but should be used to affect justice between the parties in the circumstances of the case. I therefore order that the costs of these proceedings, other than for the first three days of the hearing, be paid by Australia Post.
DECISION
The decision under review is set aside and in substitution the tribunal decides that Australia Post is liable to pay Mr Wilson compensation pursuant to s 24(1) of the Act based on 10% permanent impairment. Pursuant to s 67(8) costs are awarded to the applicant, other than for the first three days of hearing. I note that the parties have agreed that the issue in relation to s 27(1) of the Act will be re-determined by Australia Post having regard to the findings of the tribunal.
I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member ................[sgd]...................................................
Associate
Dated 30 October 2014
Dates of hearing 3-4, 25-26 September 2014 Counsel for the Applicant Mr J Dodd Solicitors for the Applicant Slater and Gordon Lawyers Counsel for the Respondent Mr M Gollan Solicitors for the Respondent Australian Postal Corporation
0
5
0