Qannadian v Bartter Enterprises Pty Limited
[2016] NSWWCCPD 50
•18 October 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50 | |
| APPELLANT: | Reza Qannadian | |
| RESPONDENT: | Bartter Enterprises Pty Limited | |
| INSURER: | Employers Mutual NSW Limited | |
| FILE NUMBER: | A1-936/2016 | |
| ARBITRATOR: | Mr G Brown | |
| DATE OF ARBITRATOR’S DECISION: | 26 May 2016 | |
| DATE OF APPEAL DECISION: | 18 October 2016 | |
| SUBJECT MATTER OF DECISION: | Use of clinical notes in fact finding – application of Mason v Demasi [2009] NSWCA 227 and related authorities; procedural fairness and the rule in Browne v Dunn (1893) 6 R 67 in the Commission; rejection of evidence which is uncontroverted; weight of evidence –application of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 and related authorities; section 65A of the Workers Compensation Act 1987 and an alleged two stage test in determining primary psychological injury. | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Cater & Blumer |
| Respondent: | Gillis Delaney | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination dated 26 May 2016 is confirmed. | |
INTRODUCTION
This appeal is against a finding that a worker did not suffer ‘primary psychological injury’, within the meaning of s 65A of the Workers Compensation Act 1987 (the 1987 Act). For reasons given below, the appeal fails.
BACKGROUND
Reza Qannadian (the appellant) was employed by Bartter Enterprises Pty Limited (the respondent). His work involved forklift driving, picking and packing. He was involved in an incident in the course of his employment on 8 November 2011, when his left foot and ankle were crushed between two forklifts. Fractures in the left foot were immobilised in a plaster cast, followed by a moon boot. After about two weeks off work the appellant resumed with the respondent on selected duties.
Dr Hatfield, orthopaedic surgeon, operated on the appellant in February 2014; Dr Millons said he took that procedure (which is not specifically described in the treating medical evidence) to involve a mid-foot fusion. The appellant resumed selected duties. The respondent eventually terminated the appellant’s employment in August 2014. The appellant underwent further surgery by Dr Hatfield on 3 September 2014, involving the fusion of two more joints in the left foot, and removal of some tissue from the dorsum of the foot. The appellant has not subsequently resumed any regular employment. The respondent accepted voluntary liability to pay compensation in respect of the injury.
The appellant was assessed by Dr Millons, at the request of his solicitors. In a report dated 11 June 2015 Dr Millons assessed that the appellant suffered seven per cent whole person impairment, in respect of his left ankle.
The appellant was assessed by a psychiatrist, Dr Robertson, at the request of his solicitors. Dr Robertson reported on 11 August 2015. He said that the appellant suffered Post-Traumatic Stress Disorder as a result of the accident on 8 November 2011, and assessed 17 per cent whole person impairment in respect of this primary psychological injury. The respondent had the appellant examined by Dr Vickery, psychiatrist, who reported on 13 October 2015. He said there was “no primary or secondary psychological injury”.
The appellant’s claim pursuant to s 66 of the 1987 Act, in respect of this alleged primary psychological injury, was declined by the respondent’s insurer, in a s 74 notice dated 13 November 2015. It disputed that the appellant had suffered a psychological injury, disputed that s 9A of the 1987 Act was satisfied, and disputed that there was “permanent impairment as a consequence of psychological injury”.
THE ARBITRAL PROCEEDINGS
The proceedings were commenced by an Application to Resolve a Dispute registered on 24 February 2016 (the Application). The appellant claimed lump sum compensation for 17 per cent whole person impairment in respect of primary psychological injury. The matter was listed for arbitration hearing on 29 April 2016. Ms Balendra of counsel, instructed by Mr Jeremy, appeared for the appellant. Mr Morgan of counsel appeared for the respondent. There were no applications to adduce oral evidence or to cross-examine. The matter proceeded on the written material, and counsel addressed. The Arbitrator described the issue as “whether or not the applicant suffered a primary psychological injury in the nature of post‑traumatic stress disorder as a result of an undisputed injury at work” on 8 November 2011. The Arbitrator reserved his decision.
THE ARBITRATOR’S DECISION
The Certificate of Determination was dated 26 May 2016. It provided:
“1. Award for the respondent in respect of the applicant’s claim of primary psychological injury.”
The Certificate of Determination was accompanied by 21 pages of reasons (the reasons).
The Arbitrator briefly set out his reasons for refusing an application by the appellant to rely on a supplementary report of Dr Robertson dated 18 April 2016, under cover of an Application to Admit Late Documents dated 29 April 2016. The Arbitrator briefly summarised the parties’ submissions. He set out the appellant’s statement dated 4 February 2016. He set out the medical evidence in detail, including reference to clinical records of the Griffith Medical Centre, on which the respondent had addressed at some length.
The Arbitrator said that the appellant “… proceeds upon the basis that he suffered a primary psychological injury in the nature of PTSD as a result of the incident at work on 8 November 2011” (reasons at [38]). He referred to a number of authorities dealing with the proof of causation (reasons at [38]-[43]). He referred to a line of appellate authority dealing with the weight to be attached to records of treating medical practitioners (at [44]). He referred to Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 (Hancock) and Paric v John Holland Constructions Pty Ltd in the Court of Appeal ([1984] 2 NSWLR 505) and in the High Court ([1985] HCA 58; 59 ALJR 844) (reasons at [45]-[46]).
The Arbitrator referred in detail to material from treating medical practitioners, relating to the appellant’s injury and treatment, including complaints relevant to his psychological condition (reasons at [47]-[60]). He said at [61]:
“There is no notation in the records of any treating practitioner in support of the allegation that the applicant’s psychological symptoms are a direct result of the injury event of 8 November 2011, rather it would appear that the treating doctors have related any psychological symptoms to consequential or secondary effects of the physical injury…”
The Arbitrator at [79] said that “none of the extensive notes provided by the applicant’s treating doctors make reference to the applicant experiencing ‘nightmares’ ‘flashbacks’ startle responses or hypervigilance”. He said “a more likely explanation for those doctors not recording those references is because the applicant did not mention such matters to them”. He continued “the most likely explanation for the applicant not raising such factors was not because he wasn’t asked but because he was not experiencing such symptoms or concerns when seen by his treating practitioners”. At [83] the Arbitrator said “there is no reference in any treating medical practitioner’s notes or report that I was taken to, whether lay or medical, that made reference to the applicant suffering PTSD type symptoms or [e]ffects” (reasons at [83]).
The Arbitrator said that Dr Robertson, on whose evidence the applicant relied, did not have the benefit of the extensive clinical record (reasons at [91]). He said at [93] of his reasons:
“… I am not satisfied the history on which Dr Robertson has based his opinion is reliable or accurate, or properly engages with the applicant’s clinical history and the secondary consequences the applicant suffered since suffering injury to his foot on 8 November 2011. I am of the opinion the history relied upon by Dr Robertson is substantially incorrect and incomplete, and it follows to the extent to which such opinion is relied upon to support a diagnosis of PTSD as a primary psychological injury causally related to the applicant’s accident at work on 8 November 2011 it has not been properly based or given in a ‘fair climate’ (Hancock and Paric) and carries no weight. It follows that to the extent the opinion of Dr Robertson is relied upon to support the contention that the applicant suffered a psychological injury on 8 November 2011, I reject it.”
The Arbitrator at [93] concluded:
“To the extent the applicant has suffered symptoms and complaints of a psychological nature after 8 November 2011, I am satisfied such symptoms and condition is more likely secondary and consequential upon the applicant’s physical injury suffered at work on 8 November 2011. I am not satisfied that the applicant suffered identifiable pathological change, in the nature of a primary psychological injury as a result of the accident at work on 8 November 2011.”
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
ISSUES IN DISPUTE
The issues raised in the grounds of appeal are:
(a) Ground 1(a): Whether the Arbitrator erred in fact, in drawing an adverse inference that was not reasonably available. The relevant inference was that the more likely explanation for the lack of entries in treating records, to nightmares, flashbacks, startle response or hypervigilance, was failure by the appellant to raise such matters with treating practitioners, as he was not suffering from such symptoms at the time of the relevant consultations.
(b) Ground 1(b): Whether the Arbitrator erred in fact, in rejecting the appellant’s evidence, in his statements, that immediately after the accident he “became depressed and would have nightmares and flashbacks about the incident”.
(c) Ground 2: Whether the Arbitrator erred in determining the issue of whether the appellant suffered from PTSD, that properly being a ‘medical dispute’ within the meaning of s 121(1) of the 1998 Act which “should be referred to an AMS for determination”.
(d) Ground 3: Whether the Arbitrator denied the appellant procedural fairness, in rejecting his evidence when no challenge was made to it, no oral evidence was called, and the appellant was not given an opportunity to address the Arbitrator’s concerns regarding a “lack of information in the medical notes”. The appellant referred to the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn).
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Section 65A of the 1987 Act provides:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note. If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply:
(a)the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b)the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c)the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note. If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section:
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
GROUND 1(A) – DRAWING AN INFERENCE
The Appellant’s Submissions
The Arbitrator referred to the lack of support in treating records, for the proposition that psychological symptoms were a direct result of the injury on 8 November 2011 (reasons at [61]), and the lack of reference to “flashbacks”, “startle responses”, “hyper vigilance” and a negative reaction to hearing the word “forklift” (reasons at [62]). He said there was no reference to such factors in “the extensive and quite detailed clinical notes” (reasons at [65]). He inferred the “more likely explanation for the absence” was that the appellant did not raise such factors.
The appellant submits that it was unreasonable to draw such an inference, “in circumstances where there was no evidence from the maker of the clinical notes as to the circumstances of the consultations”. In support of this submission the appellant quotes the following passage from Mason v Demasi [2009] NSWCA 227 (Mason) at [2]:
“… such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
The Respondent’s Submissions
The respondent submits that this ground is misconceived. The finding that the Arbitrator made was that the appellant had failed to discharge his onus in establishing a primary psychological injury. The report relied on by the appellant, from Dr Robertson, was based on a history “that was substantially incorrect and incomplete”, and was rejected for this reason. The Arbitrator did not make “an adverse finding as to the appellant’s credibility”.
The respondent submits that the Arbitrator dealt with the clinical notes recognising the weight to be attached to such records. The Arbitrator engaged in a detailed analysis, and observed that the appellant’s history of “flashbacks” and “nightmares” was not corroborated in the “extensive clinical notes produced by the Griffith Medical Centre”, or “any report from a general practitioner, treating psychologist or psychiatrist”. The respondent observed “there is no evidence of any treatment at all for the asserted condition in the period from injury in November 2011 to the arbitration date”.
The respondent submits that it was open to the Arbitrator to determine what weight should be given to the opinion of Dr Robertson. “Expert evidence must provide a satisfactory basis upon which the Commission can make its findings”; the respondent refers to Hancock.
The respondent submits that Dr Vickery, who dismissed Dr Robertson’s opinion, made clinical observations as to symptoms which were confirmed by the clinical records of Griffith Medical Centre.
Discussion
The appellant’s statement was dated 4 February 2016. At [5] it said:
“Immediately after the accident I became depressed and would have nightmares and flashbacks about the incident. I knew I had seriously injured my left ankle and was uncertain about the severity of the injury. I felt somewhat hopeless.”
The history recorded by Dr Robertson in his report dated 11 August 2015, relating to psychological symptoms, said:
“Following the accident he experienced dreams and nightmares, in the form of either a replay of the accident, or he would be looking at his left leg but he could not see his foot there.
He has experienced ‘flashbacks’, i.e. vivid and disturbing involuntary memories of the accident; these may be provoked by hearing the word ‘forklift’ or when his pain is severe.
He does not socialise much. He cannot drink alcohol. He said that most of his previous soccer friends have moved away from Griffith.
He prefers not to talk about the accident or to think about it.
He is hypervigilant when he is crossing a road or whenever there is any risk from wheels or tyres.
There is an increased startle response.
He became depressed a few weeks after the accident and this increased after the unsuccessful surgery and again after his dismissal from work. He has problems with sleep, because of pain. He has gained 8 kg in weight. His energy is there, but he cannot use it. Nothing gives him pleasure. He feels at his worst last thing at night and first thing in the morning. His memory is poor. I asked him about suicidal ideation and he said that there were times that he did not want to go on but there have been no suicide attempts.”
Dr Robertson’s opinion, dealing with the psychiatric diagnosis, said:
“I have no doubt that Mr Qannadian has suffered a Post-Traumatic Stress Disorder (PTSD) as a result of the work accident of 8 November 2011.
The circumstances of the accident, and his reaction at the time satisfy the stressor criteria for PTSD. He has developed typical symptoms of PTSD, including a sleep disturbance, nightmares, flashbacks, social withdrawal, avoidance of recall, hypervigilance, whenever there is a risk of re-injury, and an increased startle response.
His PTSD has been associated with depression, and depression is an extremely common and well-recognised complication or co-morbidity of PTSD. The appropriate diagnosis is of a Major Depressive Disorder.” (emphasis added)
Dr Robertson’s history, on which his diagnosis was based, included depression from a few weeks after the accident, dreams and nightmares, and flashbacks. Dr Robertson’s recorded history comprised evidence of the facts contained in it (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [75], JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17 (Kitanoski) at [98]). The history given by the appellant in his statement, whilst short, included reference to depression, nightmares and flashbacks from immediately after the accident. It was generally consistent with the factual scenario which provided the basis for Dr Robertson’s opinion.
The Arbitrator, at [79] of his reasons, reasoned that the likely explanation for the absence of complaints such as nightmares and flashbacks, from the recorded complaints in treating records, was that the appellant was not experiencing such symptoms when providing the relevant histories to treating practitioners (see the passages quoted at [13] above). The Arbitrator at [92] of his reasons said:
“… for the reasons indicated above including the complete lack of reference to such matters in the extensive clinical record I am not persuaded that the applicant suffered ‘flashbacks’ or ‘nightmares’ in respect of the initial injury. I am not satisfied the applicant’s statement evidence, to the extent it asserts the applicant immediately suffered nightmares and/or continued to do so about the accident event is accurate or reliable and I reject it. I am not satisfied the applicant suffered ‘shock’ at the time of the accident.”
The effect of this factual finding was that the Arbitrator rejected the evidence of the appellant, in his statement and in the history recorded by Dr Robertson, that he had experienced such symptoms from immediately or shortly after the accident. I accept, contrary to the submission of the respondent, that this constituted a credit finding. It was an important credit finding. Its consequence was that the opinion of Dr Robertson was deprived of weight, because it was based on a history which was inconsistent with the factual evidence accepted by the Arbitrator (see the reasons at [93], quoted in part at [14] and [15] above).
The appellant submits that this credit finding should not have been made, in the absence of “evidence from the maker of the clinical notes as to the circumstances of the consultations”.
Mason is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).”
The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence.
The appellant’s counsel addressed the Arbitrator on the fact that the notes were a “very short form description of what actually occurs within the discussions held between the doctor and his patient” (T20.32-21.2). She addressed the Arbitrator on the possibility that a “GP may have missed, the seriousness of the psychiatric symptoms” (T24.31-2). She addressed saying that the notes did not provide “a complete history about when the symptoms arose” and constituted “a very sparse description of whatever was of primary concern at that point” (T28.30-29.1).
Potential limitations, to the use to be validly made of the notes, were clearly brought to the Arbitrator’s attention. The Arbitrator, at [44] of his reasons, referred to the need for caution in this regard. He referred to the decisions in Mason and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320.
The specific basis, on which the appellant submits that it was erroneous for the Arbitrator to reach this conclusion on credit, was that “there was no evidence from the maker of the clinical notes as to the circumstances of the consultation”. As a general proposition, the authorities do not require the existence of such evidence, before evidence in notes can be accepted. The appellant has not made specific submissions going to why such evidence would be necessary, in the particular circumstances of the current case, before the notes could be relied on.
The Arbitrator, at [62] of his reasons, said (and there is no submission to the contrary) that there were no references in the multiple clinical note entries, to the appellant raising concerns about flashbacks, startle responses, hypervigilance or negative reaction to hearing the word “forklift”. These were all matters referred to in Dr Robertson’s report, relevant to his diagnosis of PTSD. The Arbitrator gave specific reasons why, in the circumstances of the particular case, he placed reliance on the clinical notes.
The Arbitrator said that there were multiple entries in the notes which referred to “education” and “discussion”. The notes revealed “at least 120 consultations” over the course of four years. The Arbitrator said that the general practitioners had “during numerous consultation periods devoted considerable time to the applicant and his sleep disturbance and psychological symptoms” (reasons at [64]). He said that if the appellant had been experiencing symptoms of flashbacks, nightmares, or startle response over that period, it is likely that they would have been raised “with at least one of his general practitioners” (reasons at [62]-[64]). The Arbitrator said that it was “implausible” that, if the appellant suffered from such symptoms, he would not have mentioned them to “any of his treating practitioners” (reasons at [65]).
I accept the Arbitrator’s observation that the notes from the Griffith Medical Centre, overall, are “extensive and quite detailed” (reasons at [65]). The notes, as one would expect, set out in a summary form what was discussed from time to time. They do not purport to set out the full conversations between doctor and patient. There are a number which deal specifically with the appellant’s psychological condition and sleep problems. The entry on 20 December 2011 includes “He is very frustrated with pain and work. Discussion to take his Antidepressant every day.” The entry on 16 June 2012 relevantly reads:
“Feels very depressed and different feeling in the morning.
Has been on and off the same feeling as years ago.
Thinking that is not able to breathe any more.
Difficulty on sleeping, is very tired and exhausted.
Loss of energy and possible power during the day.
Is taking his medication.
Discussion about how to manage his anxiety and depression. No suicidal thought.
Thinks more negative.”The entry on 7 March 2013 includes:
“Last week been to melburne [sic] when he had an attack of not being able to move.
Been some attack of panic and not been able to do anything.
Not taking his Zoloft 3 weeks.”The entry on 28 May 2013 includes:
“Education and information.
Long discussion.
Sever [sic, severe] and chronic pain psychologically has affected him.”The entry on 16 July 2013 includes:
“Also had another attack of panic attack again last night.
Started at 10 at night when been feeling his hand is weak and heart racing.
Been for one hour and not been able to control it.
Has trying many things to distract himself.
Had just once counselling.
Been taking the medication and not controlled.
Long discussion.
Will try to manage it.
Continue the medication.”The entry on 26 March 2014 includes:
“L foot review.
Been off and on in pain.
Noted been very stressed.
Conflicts at home been affecting him.”The entry on 15 July 2014 includes:
“Noted has problems as Anxiety attacks.
Been feeling heart racing and feeling scared.
Noted had a sever [sic] attack a couple of nights.
Had thought racing.”
The Arbitrator, in his reasons at [63], said that the entries referring to psychological symptoms:
“… are not referenced as being directly related to the traumatic injury event of 8 November 2011, but rather appear to me to be associated with concerns the applicant has about significant and ongoing consequential effects of the injury, such as the ongoing pain, concerns with work security, and later, his marital situation.”
The Arbitrator’s summation on this point is accurate. The notes make specific references from time to time to the nature of the psychological symptoms (for example the panic attacks, depression and feelings of lethargy). They make specific reference, from time to time, to what the symptoms were associated with (for example pain, frustration, conflicts at home). They do not refer to flashbacks, startle responses, hypervigilance or negative reaction to hearing the word “forklift”.
The Arbitrator made reference to the relevant appellate authorities, which indicate that caution is required in dealing with such evidence. He gave specific reasons for why he approached the clinical notes as he did, in the circumstances of this case – there were many consultations over a lengthy period, the notes were extensive and detailed, there were numerous consultations involving sleep disturbance and psychological symptoms. The Arbitrator’s conclusion accurately reflects the content of the clinical notes. The approach which the Arbitrator took, dealing with the clinical notes, was reasonably open to him, even exercising appropriate caution. It did not involve error.
It should also be noted that the Arbitrator did not rely only on the clinical notes from the Griffith Medical Centre. He relied also on Dr Watanabe, a treating rehabilitation physician, who reported to the appellant’s general practitioner on 11 December 2012. Dr Watanabe, under the heading “Mood”, recorded:
“He admitted that he is frustrated by ongoing pain and limited activities including leisure activities. His sleep pattern has been affected due to pain.”
The “Impression” recorded by Dr Watanabe, in addition to the physical symptoms, included:
“2. Mood disturbances (frustrated by pain and limited activities)
3. Sleep disturbances.
4. Cognition – negative thoughts/beliefs.
5. Return to work issues.
6. Minimum psychosocial issues (he is very motivated).”
Dr Watanabe recommended that the appellant see “a psychologist who is familiar with pain/CRPS management”.
The Arbitrator, in his reasons at [90], said:
“The observations and opinion of Dr Watanabe appear to indicate any psychological symptoms are secondary to the physical injury…”
The history and opinion of Dr Watanabe also were supportive of the approach taken by the Arbitrator, in making the credit finding which he did.
For the above reasons, ground 1(a) fails.
GROUND 1(B) – THE REJECTION OF EVIDENCE
GROUND 3 – LACK OF PROCEDURAL FAIRNESS
These grounds go to the Arbitrator’s rejection of the appellant’s evidence in his statement, that “immediately after the accident I became depressed and would have nightmares and flashbacks about the incident” (appellant’s statement at [5], quoted at [29] above). It is convenient to deal with them together.
The Appellant’s Submissions
The appellant submits that the credit finding was made in circumstances where there was no evidence inconsistent with that of the appellant, and the appellant “was not afforded the opportunity to rebut such findings”. There was no reasonable basis to reject the appellant’s evidence, and the “various scenarios that the Arbitrator speculated upon” were not raised with the appellant. This was contrary to the rule in Browne v Dunn.
The appellant submits that the Arbitrator had no opportunity to assess the demeanour of the appellant. In the absence of him being cross-examined, and in the absence of the respondent relying on evidence contrary to that of the appellant, there was no proper basis to reject the evidence at [5] of the appellant’s statement.
It is submitted that the only medical history contrary to that of Dr Robertson is that of Dr Vickery. The appellant seeks to criticise the report of Dr Vickery. The Arbitrator described the history recorded by Dr Robertson as “substantially incorrect and incomplete”. The appellant submits that this view was not open, in the absence of evidence going to “the manner and circumstances” in which the history was taken, and where there was “supportive evidence in the form of the Appellant’s uncontradicted statements”. The appellant submits that in “unreasonably rejecting evidence” the Arbitrator committed an error of fact.
The Respondent’s Submissions
The respondent submits that during discussion between the Arbitrator and counsel, in the running of the arbitration hearing, the appellant had adequate opportunity to respond to the Arbitrator’s concerns. The respondent submits that evidence in the Commission “will usually be in documentary form”, and there is “limited opportunity for oral evidence”. The respondent refers to the Workers Compensation Commission Rules 2011, Pt 14 rr 14.2 and 14.3. The appellant had an opportunity to address gaps in evidence through a “detailed personal statement, additional medical evidence and submissions”.
Discussion
The Browne v Dunn Argument
There is no right to cross-examine in the Commission: Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 at [37]. In New South Wales Police Force v Winter [2011] NSWCA 330 Campbell JA (Giles JA and Handley AJA agreeing) at [77]–[85] dealt with the rule in Browne v Dunn and principles of procedural fairness, in the context of the Commission. Applying that decision in Kitanoski, Roche DP at [121] said:
“The apparent suggestion that, if an Arbitrator has not heard oral evidence from a party, it is not open to the Arbitrator to form a view about that party’s credit or consistency is plainly wrong. Subject to the relevant issues having been fully and fairly ventilated in the documentary evidence, and the parties having had a reasonable opportunity to make appropriate submissions on those issues, it is open to an Arbitrator to form a view about the credit of a witness or a party even if that witness or party has not given oral evidence or been cross-examined (New South Wales Police Force v Winter[2011] NSWCA 330 from [81]).”
The respondent relied on Dr Vickery’s report dated 13 October 2015. Dr Vickery’s examination of the appellant’s mental state included the following:
“There were no intrusive or distressing recollections of traumatic events or images, dissociative symptoms, flashback episodes, excessive physiological reactivity, efforts to avoid traumatic thoughts or an inability to recall traumatic events, a loss of loving feelings, a startle reflex or a belief in a foreshortened future.”
Thus, Dr Vickery did not record a history of matters such as flashbacks, startle responses, hypervigilance or negative reaction to hearing the word “forklift”, contrary to Dr Robertson’s history. Dr Vickery’s opinion was that the appellant had not suffered “primary or secondary psychological injury”. He said that there was “no basis in the current clinical examination on which to conclude that Mr Qannadian suffers PTSD as suggested by Dr Robertson”.
The respondent’s insurer disputed liability for the alleged primary psychological injury in a s 74 notice dated 13 November 2015. It stated “our evidence indicates that you have not suffered a psychological injury”. The notice recited the respondent’s reliance on the opinion of Dr Vickery, a copy of whose report was attached to the notice. The respondent’s Reply to the Application indicated the matters in dispute in the proceedings were “confirmed as per dispute notice(s) attached to the Application”.
The clinical notes from Griffith Medical Centre, and Dr Watanabe’s report dated 11 December 2012, were lodged by the appellant, under cover of an Application to Admit Late Documents dated 20 April 2016. The material relevant to the Arbitrator’s credit finding was ventilated between the parties prior to the arbitration hearing, in the served evidence. The respondent’s case, that the appellant had not suffered psychological injury, was made clear from when the s 74 notice dated 13 November 2015 was served on the appellant.
At the arbitration hearing, the respondent’s counsel addressed prior to the appellant’s counsel. Mr Morgan noted that Dr Robertson based his diagnosis of PTSD on a history that the appellant had developed typical symptoms of PTSD, and he recited a number of these (T7.30-8.9). He submitted that the only evidence to support Dr Robertson’s history was the appellant’s statement at [5] (T8.16-24). He submitted that the appellant’s statement largely put emphasis on “pain and the physical consequences of the injury” as leading to the psychological consequences (T9.1-20). He submitted that the evidence did not support the history on which Dr Robertson’s diagnosis was based (T9.22-3). He referred to Dr Vickery’s history and opinion, that there was no basis “to conclude that the applicant suffers PTSD as suggested by Dr Robertson” (T10.7-10). Mr Morgan referred to Dr Watanabe’s report, in which there was “nothing recorded with respect to any psychological consequences of the injury, in particular, those indicators that Dr Robertson refers to”.
Mr Morgan addressed in detail on the contents of the clinical notes from the Griffith Medical Centre (T11.13-17.21). He then submitted:
“Nowhere in any of these notes, Arbitrator, is there any reference to those matters which Dr Robertson has accepted at face value. Absent any contemporaneous support, those indicia that Dr Robertson refers to, there’s no foundation for his opinion and as a result, you wouldn’t accept it, Arbitrator.” (T17.21-27)
And:
“… the applicant is not coping with an accepted physical injury. What we say is, that’s unfortunate, he’s being treated for it and hopefully will recover, but clearly it is a condition that is secondary or reactive to a physical injury and is not a primary injury. Given that that’s the assertion made by the applicant, there ought to be an award for the respondent.” (T18.8-14)
The case run by the respondent, based on the treating medical evidence, was plain – the appellant’s history of symptoms, consistent with a diagnosis of PTSD, should not be accepted, given the contents of the contemporaneous material from treating medical practitioners. If that history was not accepted, Dr Robertson’s views were deprived of weight, and should not be accepted.
The appellant’s counsel addressed the Arbitrator after the respondent’s counsel, and had an opportunity to respond to the arguments advanced on the respondent’s behalf. She did so, referring to the limited nature of what is recorded in clinical notes, and referring to entries which related to psychological symptoms (T20.28-21.10). She addressed at some length on why Dr Robertson’s opinion should be accepted. The Arbitrator specifically raised, with the appellant’s counsel, his concern that the clinical notes did not include reference to complaints consistent with PTSD symptoms, as “it wasn’t a concern for the applicant to raise it” (T30.18-9). She responded to that query (T30.21-31.5).
The evidentiary bases of the issues were ventilated in the material served between the parties, prior to the arbitration hearing. The specific arguments run by the respondent, and accepted by the Arbitrator, were clearly raised in submissions. The appellant’s counsel had opportunity to respond to those arguments, and she did so. Consistent with the authorities referred to above, there was no procedural unfairness in the Arbitrator arriving at his findings, in the absence of oral evidence and cross-examination of the appellant.
Ground 3 fails.
The Rejection of Evidence Argument
There is an associated argument going to whether the Arbitrator erred, in rejecting the appellant’s evidence in his statement at [5]. It is submitted that in unreasonably rejecting evidence, the Arbitrator was in error, applying Whitely Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Kerr). The specific points raised in this regard are:
(a) the appellant’s demeanour could not be assessed as he did not give oral evidence and was not cross-examined;
(b) there was no evidence proffered that was contrary to this evidence of the appellant;
(c) the history recorded by Dr Robertson was consistent with this evidence from the appellant;
(d) the history recorded by Dr Vickery was inconsistent with this evidence. However, Dr Vickery’s report was contradictory in this regard, as it included reference to other symptoms such as dreams of the left foot not being present, reduced short term memory, reduced affect and despondent mood, and
(e) the Arbitrator’s finding that Dr Robertson’s history was “incorrect and incomplete was not open, in the absence of evidence going to how the history was obtained. Additionally, Dr Robertson’s history was supported by the appellant’s statements.
The point raised at (a) above must be rejected, for reasons given above dealing with ground 3.
As a general proposition, a decision maker is not obliged to accept evidence, on the basis that there is no evidence to the contrary. In SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129 the Full Bench of the Federal Court (Rares, White and Gleeson JJ) said at [24]:
“We agree with the primary Judge’s statement at [79] that there is no principle of law requiring a Court to accept unchallenged or untested evidence, at least in the absence of circumstances indicating unreasonableness to the point of perversity: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-8; Spencer v Bamber [2012] NSWCA 274 at [134], (Campbell JA, Basten and Macfarlan JJA agreeing).”
In the current matter, there was evidence (the clinical notes from Griffith Medical Centre and the report of Dr Watanabe) which, on the Arbitrator’s analysis, was inconsistent with both the appellant’s statement at [5] and the history recorded by Dr Robertson. I have concluded above that the Arbitrator’s treatment of such evidence, in his fact finding, was reasonably open to him, and did not involve error. It follows that the Arbitrator did not err in rejecting the appellant’s evidence in his statement at [5], and the accuracy of the history recorded by Dr Robertson. It certainly could not be said that the rejection of such evidence was unreasonable “to the point of perversity”. The points raised at (b) and (c) above are rejected.
Whilst the Arbitrator referred to the report of Dr Vickery, it was not the basis of his rejection of the relevant evidence in the appellant’s statement, and the history recorded by Dr Robertson. The rejection of such evidence was based on the Arbitrator’s acceptance of the clinical notes from the Griffith Medical Centre and the report of Dr Watanabe, and the conclusion he drew from that evidence, regarding the appellant’s complaints. The point raised at (d) above is rejected.
The point raised at (e) above is misconceived. The passage at [93] of the Arbitrator’s reasons, in which he referred to Dr Robertson’s history as “substantially incorrect and incomplete”, was in a passage going to the weight to be given to medical evidence, subject to the accuracy of the history on which such evidence is based. This was made clear in that part of the reasons at [93], quoted at [14] above. The Arbitrator specifically referred to Hancock and Peric in the passage.
In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) Heydon JA at [64] said:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd[1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.”
In Hancock, Beazley JA (Giles and Tobias JJA agreeing), discussing the application of Makita to proceedings in the Commission, at [82]-[83] said:
“82. Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report . In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error.”
The Arbitrator, at [93], specifically described Dr Robertson’s opinion as carrying “no weight”. It is apparent that this lack of weight resulted from the lack of correlation between the history on which Dr Robertson based his opinion, and the history as found by the Arbitrator. Evidence about how the history was obtained would not have been of assistance on this point. The issue was not how Dr Robertson obtained his history. The issue was whether there was sufficient correlation between that history, and the history as found by the Arbitrator on all of the evidence, that Dr Robertson’s opinion was entitled to weight.
It is beside the point that the appellant’s statement was consistent with the history recorded by Dr Robertson. The Arbitrator specifically rejected the appellant’s evidence in his statement on this issue (see the passage quoted at [33] above). The point raised at (e) above is rejected.
Ground 1(b) fails.
GROUND 2 –DETERMINING AN ISSUE NOT THE SUBJECT OF DISPUTE
The Appellant’s Submissions
The Arbitrator framed the question before him as “Whether the applicant suffered a primary psychological injury, in the nature of a PTSD, resulting from the accident on 8 November 2011.” The appellant says that this correctly identified the issue (his submissions at [16]). The appellant then submits that this question is to be dealt with in two stages. The first, to be determined by the Commission, is whether the appellant suffered a primary or secondary psychological injury. The appellant submits that the second part of the question is whether the appellant suffers from PTSD as diagnosed by Dr Robertson. The appellant submits that this is a ‘medical dispute’ within the meaning of s 121(1) of the 1998 Act, which should be referred to an Approved Medical Specialist (AMS) for determination.
The relief sought, set out at Part 2.10 of the appellant’s grounds and submissions, is that the Arbitrator’s decision be revoked, and:
“That the matter be referred to an AMS for determination as to whether the Appellant suffers from PTSD.”
The appellant, under this ground, repeats the submission that it was unreasonable to reject the appellant’s evidence of his symptoms “where there was no evidence to contradict it”. He repeats the submission that the Arbitrator drew inferences from clinical notes where “no information was provided by the doctors as to the circumstances of the consultations”. He submits that he had “no opportunity to address the Arbitrator’s concerns”.
The appellant refers to the decision of Romanous Constructions Pty Ltd v Arsenovic [2009] NSWWCCPD 82 (Arsenovic). The appellant submits that the Arbitrator:
“… essentially conducted a medical examination where parts of the evidence were rejected and the only evidence relied upon was documentary medical evidence with no evidence from the Appellant.”
The appellant submits that this “examination”:
(a) is contrary to s 121 of the 1998 Act;
(b) is an inappropriate basis for properly evaluating the history and symptomatology, and
(c) does not properly consider the whole of the evidence as Arsenovic requires.
The Respondent’s Submissions
The respondent submits that, consistent with Arsenovic, the Arbitrator dealt with the issue of whether the appellant had suffered a primary or secondary psychological injury by considering the whole of the evidence, both expert and lay. He was not required to accept such evidence. It was open to the Arbitrator to reject evidence in the appellant’s statement, in the absence of contradictory evidence (reference was made to Makita at [89]), and in the absence of oral evidence or cross-examination.
The respondent refers to the following passage from Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642:
“That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves ‘Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?’.”
The respondent submits:
“The Arbitrator explained his reasoning process, gave all material facts appropriate weight, and constructed inferences based on legitimate evidence and reasoning. The Arbitrator did not err in this respect: Whitely Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505.”
Discussion
Section 121 of the 1998 Act forms part of Ch 4, Pt 2, Div 7 of that Act. Pursuant to s 118A of the 1998 Act, s 121 applies only to ‘existing claims’. An ‘existing claim’ is defined in s 250(1) of the 1998 Act. The current matter is not an ‘existing claim’ within that definition. Section 121 has no application or relevance to the current claim. It should be noted that an ‘approved medical specialist’ within the definition in s 121 of the 1998 Act, is quite different to an ‘approved medical specialist’ within the definition in s 319 of the 1998 Act.
The appellant quotes no authority for the proposition, that the issue of whether the appellant suffered a primary psychological injury involves a two stage test, in which an Arbitrator determines whether there is a primary psychological injury, and the question of whether the appellant suffers from PTSD is then referred to an ‘approved medical specialist’. The appellant quotes no authority, and makes no specific reference to legislation, for the proposition that it was impermissible for the Arbitrator to attempt to determine whether the appellant suffered from PTSD. Given the misconceived reliance on s 121 of the 1998 Act, this argument cannot succeed. Even ignoring the misplaced reliance on s 121, there is no support in the legislation or authority for this argument.
If the question postulated by the appellant (see [86] above) was referred to an ‘Approved Medical Specialist’(AMS) pursuant to s 321 of the 1998 Act, any resultant Medical Assessment Certificate would not be binding on the issue of psychiatric diagnosis in any event (s 326 of the 1998 Act). The submission that the issue of diagnosis can be the subject of “determination” by an AMS is inconsistent with authority: Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; 5 DDCR 321, in which Fleming DP at [27] said “… the issue of a MAC does not equate to a determination of a dispute by the Commission”.
In Arsenovic, on which the appellant relies, Roche DP did not approach the issue as a two stage test. Rather, the Deputy President found at [60] that “Mr Arsenovic suffers from a psychological injury, namely, PTSD and depression as a result of the accident”. The Deputy President also said, at [59], that “[w]hether a worker has sustained a primary psychological injury depends on an assessment of all the evidence, lay and expert, in the particular case.” I agree with this statement of principle.
The points raised by the appellant, briefly summarised at [87] above, have been raised and dealt with under other grounds. The submission that the Arbitrator “essentially conducted a medical examination” is one which I cannot understand. The submission that such an examination is “contrary to the provisions of s 121” is misconceived.
I accept the submission of the respondent, quoted at [92] above. The Arbitrator dealt with the reports of the psychiatrists qualified on both sides (Dr Robertson and Dr Vickery). He dealt with the treating material from Griffith Medical Centre and Dr Watanabe. He dealt with the appellant’s statement. After analysing the treating material at some length, he clearly stated his reasons for rejecting both the appellant’s evidence in his statement at [5], and the appellant’s history given to Dr Robertson. He then said why this deprived the opinion of Dr Robertson of weight, referring to relevant authority. Both parties relied, in their submissions, on the decision of the High Court in Kerr (see also Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 at [19]-[21]). The Arbitrator did not fall into error, applying those principles. He considered the whole of the relevant evidence, lay and expert, consistent with Arsenovic.
Ground 2 fails.
DECISION
The Arbitrator’s determination dated 26 May 2016 is confirmed.
Michael Snell
Deputy President
18 October 2016
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