Romanous Constructions Pty Ltd v Arsenovic
[2009] NSWWCCPD 82
•17 July 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Romanous Constructions Pty Ltd v Arsenovic [2009] NSWWCCPD 82 | ||||
| APPELLANT: | Romanous Constructions Pty Ltd | ||||
| RESPONDENT: | Mirko Arsenovic | ||||
| INSURER: | GIO General Limited | ||||
| FILE NUMBER: | A1- 9873/08 | ||||
| ARBITRATOR: | Ms F Robinson | ||||
| DATE OF ARBITRATOR’S DECISION: | 24 March 2009 | ||||
| DATE OF APPEAL DECISION: | 17 July 2009 | ||||
| SUBJECT MATTER OF DECISION: | Section 65A of the Workers Compensation Act 1987; psychological injury; whether worker received a primary psychological injury or a secondary psychological injury; entitlement to compensation where worker has received both a physical injury and psychological injury; effect of payment of lump sum compensation for physical injury before assessment of impairment from psychological injury | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Hicksons | |||
| Respondent: | Martin Bell & Co | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 24 March 2009 is confirmed. | ||||
| The appellant employer is to pay the respondent worker’s costs of the appeal. | |||||
INTRODUCTION
This appeal concerns the application and interpretation of section 65A of the Workers Compensation Act 1987 (‘the 1987 Act’) and whether the worker’s psychological condition of post traumatic stress disorder with depression is a primary psychological injury or a secondary psychological injury, and the circumstances in which a worker is “entitled to receive” lump sum compensation when he or she has received both physical and psychological injuries in the one incident.
BACKGROUND
The worker, Mr Arsenovic, sustained multiple injuries in a car accident on 1 October 2002 when he was driving from his place of employment with the appellant, Romanous Constructions Pty Ltd (‘Romanous’), to his home. There is no dispute that he injured his neck and lower back in the accident.
In a claim for lump sum compensation filed in the Commission in 2003 (Matter No. 12210 of 2003) Mr Arsenovic recovered lump sum compensation in the sum of $6,250.00 in respect of a 5 percent whole person impairment as a result of injuring his lumbar spine in the car accident (Certificate of Determination dated 7 April 2004). That compensation was paid as a result of a Medical Assessment Certificate (‘MAC’) issued by an Approved Medical Specialist (‘AMS’), Dr Meakin, after his examination on 3 February 2004. Dr Meakin also assessed Mr Arsenovic to have nil whole person impairment as a result of injury to his cervical spine.
On 16 October 2008, Mr Arsenovic made a claim for lump sum compensation in respect of a 19 percent whole person impairment as a result of a deterioration in his cervical and lumbar spines and as a result of an injury to his right upper extremity. He also claimed compensation in respect of 18 percent whole person impairment for a primary psychiatric injury alleged to have resulted from the car accident.
By letter dated 11 November 2008, GIO General Limited (‘GIO’) disputed liability in respect of the claim for additional lump sum compensation on the grounds that Mr Arsenovic had not injured his right upper extremity in the accident and had not sustained a primary psychiatric injury.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 9 December 2008, the following appears under “Injury description”:
“On 1.10.02 suffered severe injury in motor vehicle accident when a speeding vehicle appeared without warning injuring right shoulder and arm, cervical, thoracic and lumbar spines, vestibular injury, dizziness, vertigo, primary psychiatric injury, and anxiety and depression.”
In a Reply filed on 24 December 2008, Romanous disputed liability on the grounds set out in the notice forwarded by the GIO on 11 November 2008.
The matter was listed for hearing before a Commission arbitrator on 13 March 2009. After hearing submissions from counsel for each of the parties, the Arbitrator delivered a reserved decision on 24 March 2009 in which she determined that, as a result of the accident, Mr Arsenovic injured his right upper extremity and suffered a primary psychological injury. By Certificate of Determination delivered on 24 March 2009, the Commission recorded the Arbitrator’s determination as follows:
“ORDERS
1 The claims, pursuant to s66 of the 1987 to be remitted to the registrar for referral to an Approved Medical Specialist for assessment. The referral is to be in the following terms:
Date of Injury: 1 October 2002:
Assessment of: By consentLumbar and Cervical Spines
By determination
Right upper extremity
Primary Psychological injury
2 The Respondent to pay the costs of the Applicant as agreed or assessed.
Certification as to Costs
For the reasons above I certify the matter as complex and allow the Applicant 20% uplift. And I also allow the Respondent 20% uplift.”
By an appeal filed on 20 April 2009, Romanous seeks leave to challenge the Arbitrator’s determination that Mr Arsenovic suffered a primary psychological injury in the car accident, but does not challenge her determination in respect of the right upper extremity.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
Interlocutory
I am satisfied that the Arbitrator’s finding that Mr Arsenovic sustained a primary psychological injury is not a determination or ruling of an interlocutory nature. It is a final determination on “injury” (see P & O Ports Limited v Hawkins [2007] NSWWCCPD 87).
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Mr Arsenovic sustained a primary psychological injury (‘primary psychological injury’), and
(b) failing to find that, as Mr Arsenovic has already “received” lump sum compensation for his physical injuries in the car accident, he is precluded from receiving lump sum compensation for a primary psychological injury (‘section 65A(4)’).
THE EVIDENCE
Mr Arsenovic was born in Bosnia in 1959. He qualified as a cabinetmaker in that country and worked in that field until 1992. As a result of political conflict at that time he became a refugee from approximately 1992 until 1996. He came to Australia in May 1996 and ultimately commenced work with Romanous as a carpenter in May 2002.
He was involved in a car accident whilst driving home from work on 1 October 2002 at about 3.30pm at the intersection of Alexandria Parade and Patterson Avenue, Waitara. As he attempted to turn right, a second vehicle struck his car. As a result of the impact, Mr Arsenovic hit his head on the side window and felt immediate pain in his neck, upper body and back. He saw his general practitioner, Dr Homsi, that afternoon complaining of pain in his neck, back and right shoulder together with headaches.
Mr Arsenovic saw Dr Homsi for a second time on 1 November 2002. Dr Homsi was not aware of any vestibular symptoms or dizziness and found it difficult to predict the prognosis because of a lack of follow up.
Several medical certificates from 2002 have been tendered. The initial certificates from Dr Homsi refer to neck and back pain, but the certificate of 25 October 2002 also refers to anxiety.
Because of his continuing pain in his neck and back and because of pain in both knees, Mr Arsenovic attended on a different general practitioner, Dr Oreb, on 28 October 2002. Dr Oreb referred him to Dr Medhat Guirgis, orthopaedic surgeon. Extensive investigations were undertaken including a full spinal MRI scan on 2 January 2003 and an EMG on 30 January 2003.
In 2003, Mr Arsenovic claimed lump sum compensation in respect of his physical injuries. That claim was referred to an AMS, Dr Meakin, for assessment. In a MAC issued in early 2004, Dr Meakin assessed Mr Arsenovic to have a nil whole person impairment as a result of his neck injury and a 5 percent whole person impairment in respect of his lumbar spine injury. Dr Meakin was not convinced that there had been a direct injury to the right or left shoulders and did not assess those parts of the body.
In a report dated 23 August 2005, Dr Kecmanovic, consultant psychiatrist, wrote to the GIO stating that he had been providing counselling to Mr Arsenovic aimed at strengthening his “ego defence”. He also prescribed an anti-depressant for him. Dr Kecmanovic felt that, overall, Mr Arsenovic’s mental condition had “slightly improved”, but his core symptoms remained deeply entrenched. The doctor did not identify what those core symptoms were or indicate when he commenced seeing Mr Arsenovic or what history he took from him.
As a result of his ongoing pain in his right shoulder and increasing problems with his back and neck, Mr Arsenovic was referred to Dr Houang for further investigations in October 2007.
In his statement of 13 August 2008, Mr Arsenovic states that he continues to experience increased problems in his right shoulder, mid to low back, and his neck.
At paragraph 20 of his statement, Mr Arsenovic states:
“As a consequence of my preoccupation with the accident, my consistent panic attacks and nightmares, Dr Zeljko Oreb, my treating general practitioner, referred me to Dr Dusan Kecmanovic, consultant psychiatrist. He subsequently referred me to a clinical psychologist, Dr Vito Zepinic.”
Mr Arsenovic also states that his ongoing symptoms include “nightmares, flashbacks, panic attacks, car phobia and a general feeling of fearfulness and apprehension”. He still drives, but tends to drive far less than he used to prior to the accident. As a result of his injuries, he finds it difficult to sleep and is often sleep deprived. He has great difficulty caring for himself and his social life has “all but vanished”. He avoids travelling and his social relationships have been “decimated”.
Medical evidence
Dr Homsi reported on 27 December 2007 that he first saw Mr Arsenovic after the accident on the afternoon of 1 October 2002. He took a history that Mr Arsenovic had been involved in a car accident and that he hit his head on the glass window but denied any loss of consciousness. Examination revealed a restricted range of movement at the cervical and lumbar spines together with restricted movement in the right shoulder. He referred Mr Arsenovic for physiotherapy and prescribed a muscle relaxant. Even with physiotherapy, the level of improvement was minimal, which caused Mr Arsenovic “some anxiety”.
Dr Oreb reported on 20 October 2007 that he first saw Mr Arsenovic on 28 October 2002. Mr Arsenovic complained of pain in his neck and low back and both knees. The doctor took a history of the motor vehicle accident on 1 October 2002 and noted that no ambulance was called and, incorrectly, that Mr Arsenovic did not seek any medical attention until his pain became severe two days later. Dr Oreb then set out his findings on examination (presumably his examination on 28 October 2002) and listed the details of several radiological investigations. He noted that treatment has remained conservative and consisted of “rest, analgesia, and SAID and anti-depressants”. He did not indicate when the anti-depressant medication began.
Under “Diagnosis”, Dr Oreb stated:
“- Post-traumatic mechanical derangement of the cervical, thoracic and lumbar spine.
- Post-traumatic symptoms of the right and left knee caused by contusion of the patella articular surface.
- Mental stress, anxiety and depression.”
He considered Mr Arsenovic to be fit to work six hours per day for four days per week with a lifting restriction of five kilograms. He then added:
“Over the twelve months Mr Arsenovic’s mental state has slowly deteriorated and he has needed ongoing treatment with a Psychiatrist and Psychologist and he has required antidepressants for his depression. He has undergone an extensive programme with KAIRROS (Occupational Rehab) but unfortunately not been able to return to any form of employment.
I feel that Mr Arsenovic is unlikely to ever return to any gainful employment given his poor mental state, poor English language skills and his minimal transferable skills.”
On a date that is not disclosed in the evidence, Dr Oreb referred Mr Arsenovic to Dr Vito Zepinic. Dr Zepinic describes himself as a “Consultant in Psychological Medicine”, but it seems that he is in fact a consultant psychologist who has a PhD in psychology (T8.40 and T9.22). Dr Zepinic saw Mr Arsenovic on referral from his family doctor who required an assessment and assistance regarding “psychological disturbances (anxiety, depression) as outcomes of a motor vehicle accident.” In his report of 18 July 2007, Dr Zepinic recorded Dr Oreb’s referral as saying that Mr Arsenovic:
“…also experienced panic attacks and has had many difficulties in his day-to-day functioning including broken relationships. There were [sic] also a depleted [sic] self-values and confidence, loss of libido, insomnia followed by nightmares and bad dreams, and irritability.”
At his first appointment with Dr Zepinic Mr Arsenovic appeared to be depressed, with a lack of energy or motivation to initiate any activity.
Dr Zepinic described the purpose of his report to be to “describe assessed symptoms and condition [sic], determine Mr Arsenovic’s reported functional limitations, pain, emotional and personality changes since the accident.” Dr Zepinic noted that there was evidence of a highly depleted level of self-values and a lack of confidence. Mr Arsenovic presented with a depressed mood. He reported having difficulties in decision-making and often felt confused. He felt angry and disappointed at his current condition and mental state and felt “useless and worthless”. He reported guilty feelings because of his unemployment.
Dr Zepinic felt that there was no doubt that the accident had caused a “significant impact on Mr Arsenovic’s mental state, his social and daily life, personality and employability.” Mr Arsenovic felt little hope about the prospect of his condition and employability. He often reported his anger towards the insurer and his previous employer. He felt neglected, hopeless, and that he was “ruled out”. He also complained of tiredness and fatigue and that his energy “disappeared”, even for doing ordinary things.
Dr Zepinic noted that the range of emotions demonstrated by Mr Arsenovic was consistent with “overwhelming psychological disturbances” and there was a “gross motor slowing suggestive of a serious and disabling mental illness (depression) with a genuine distress” regarding his overall condition. His impaired concentration and memory difficulties were suggestive of a significant mood disorder accompanied with cognitive dysfunction and loss of pleasure.
Under “Personal details”, Dr Zepinic recorded that Mr Arsenovic could not accept his current dysfunction as a father and husband.
In respect of the car accident the subject of this claim, Dr Zepinic recorded that there was no loss of consciousness, but Mr Arsenovic was stunned or blank for a short period of time. Due to his psychological condition he was referred to Dr Kecmanovic, a psychiatrist. He had regular appointments regarding his mental problems for three years and was prescribed various sedatives and anti-depressants. Mr Arsenovic had not returned to work since the accident and Dr Zepinic considered that to be a “further negative contributing factor on his mental health.”
Dr Zepinic added that since the accident Mr Arsenovic has had various psychiatric/psychological symptoms. He was initially very wary about driving, but eventually resumed driving and then subsequently stopped. Mr Arsenovic described himself as “too scared and paranoid to drive.” He said that he was afraid of causing another accident in which someone could be killed. He even found travelling as a passenger to be difficult as he panicked and urged the driver to be careful to the point where his family and friends refused to drive with him. He described “flashbacks” of the accident, but Dr Zepinic stated that they seemed to be more like recurrent intrusive images coming into his mind. He stated that if he drives past the accident scene he cries as it “reminds him of what happened causing his current mental health problems”. He also cries if he sees a car accident and he avoids watching any pictures of car accidents on television. He worries if another vehicle passes the vehicle in which he is travelling. If he hears the screech of tyres he feels “jumpy”.
Under “Current symptoms”, Mr Arsenovic reported having disturbed sleep, being fearful of a further car accident, and avoiding anything that might remind him of his own accident. His mood was low and he saw no future for himself and he has withdrawn socially. He described himself as very forgetful, distracted and disrupted. His mood changed often. He expressed his disappointment that no progress had been achieved in his mental health despite being on medication for over three years. He was resigned to living the rest of his life in a state of continual pain and being mentally sick. Prior to the accident he was a very active person who played different sports, entertained friends and had outings with his family and friends.
Dr Zepinic concluded that Mr Arsenovic suffered from a Dysthymic Disorder, a deep-seeded depression associated with significant occupational and social dysfunctions. He assessed Mr Arsenovic to have a whole person impairment of 21 percent.
Mr Arsenovic’s current solicitor referred him to Dr Thomas Clark, consultant forensic psychiatrist, for a medicolegal examination on 5 September 2007. In his report of 27 September 2007, Dr Clark recorded Mr Arsenovic was turning right at a T section on 1 October 2002 when his vehicle was struck by a van. He had some blurring or loss of consciousness and was temporarily disoriented in the accident, suffering vertigo and dizziness as he got out of his car.
Although Mr Arsenovic was able to “get around and drive locally” he was a very nervous man. He had no recreational activities with his children. He despairs, but hates to admit that he wants to cry. He developed a continuing anxiety, depression and hyper vigilance, all the hallmarks of a Post-Traumatic Stress Disorder (‘PTSD’). He had minor changes of his cognitive functioning. He was moody and becomes confused losing his memory for small details. He could not sleep and was agitated after a couple of hours. He had thoughts of suicide and he had threatened to overdose.
On psychiatric state examination, Dr Clark found no signs of a psychotic disorder. Mr Arsenovic had some memory problems and found it difficult to concentrate on tasks. He was markedly slow in his speech and thinking. He was hyper vigilant, irritable and incapable of living independently as he needed assistance in domestic care and coping with outsiders. His social life had become very restricted and he did not like crowds. His ability to travel was also restricted.
Under “Opinion”, Dr Clark concluded:
“This man had a reaction to a motor vehicle accident which he thought he could shrug off but his pains have persisted and disabled him. That is, he had a post-traumatic reaction and shows few signs of recovery. It is most probable that he had a shock episode or Acute Stress Reaction at the time. Since then, he has developed all the signs and symptoms of a Severe Depression.”
Dr Clark was asked to answer several specific questions. On the issue of primary psychological injury, he was asked:
“If you are of the opinion that Mr Arsenovic has suffered a primary psychiatric injury, please provide your assessment of Mr Arsenovic’s Whole Person Impairment under the amended Worker’s Compensation Act in percentage terms, detailing all of the separate elements comprising the assessment. Whole Person Impairment compensation is available for the assessment of Mr Arsenovic’s primary psychiatric injury only – Section 65A states ‘no compensation is payable… in respect of permanent impairment that arises from a secondary psychological injury’.”
In answer to the above question, Dr Clark stated that, “This is a primary psychiatric injury”. In a separate report, Dr Clark assessed Mr Arsenovic to have a whole person impairment of 18 percent.
Dr Medhat Guirgis reported to Mr Arsenovic’s solicitor on 13 February 2008. This report deals exclusively with the physical injuries sustained in the accident. The doctor concluded that Mr Arsenovic suffered post-traumatic mechanical derangement of the cervical spine as a result of a strain with intervertebral disc involvement. He expressed similar conclusions in respect of the thoracic and lumbar spines.
Romanous relies on a report from Dr Graham Edwards, psychiatrist, dated 26 October 2008 and headed “Supplementary Report”. This report is so short it can be set out in full:
“I advise the following in relation to your request:
Do you consider that Mr Arsenovic’s psychological condition is a primary injury or secondary to a physical injury sustained on 01/10/2002?
I consider Mr Arsenovic’s psychological condition of chronic Major Depression is secondary to the physical injury sustained on 01/10/2002.
I note in the documentation that there have been medical specialists assigning a percentage of impairment relating to his physical spinal pain problems and I note that Dr C Kuo, occupational physician, ascribed an 11% whole person impairment.Dr P Conrad in his report of 08/05/2003 ascribed a 17% whole person impairment due to the combination of back strain, neck strain and upper limb impairment.
Dr M Girgis [sic] in his report dated 13/02/2008 ascribes a 19% whole person impairment related to the combination of spinal impairments.
Accordingly, pursuant to WorkCover New South Wales Guides for the Evaluation of Permanent Impairment, November 2006;
His depression associated with the back injury is a secondary psychiatric condition.
Accordingly, I regard Mr Arsenovic’s chronic Major Depression as a secondary psychiatric injury.
Should you have any further questions concerning Mr Arsenovic please do not hesitate to contact me.”
THE ARBITRATOR’S REASONS
In a reserved Statement of Reasons (‘Reasons’), the Arbitrator stated:
(a) she proposed to disregard Dr Edward’s report because it did not disclose his reasoning process and thus offended Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) (Reasons, at [37]);
(b) Mr Arsenovic’s claim that he sustained a primary psychological injury was supported by his statement and convincing medical evidence, and Romanous had not provided acceptable evidence to refute the claim (Reasons, at [38]);
(c) she found that Mr Arsenovic sustained a primary psychological injury, namely, a post-traumatic stress disorder as a result of the motor vehicle accident in October 2002 which she found to be a personal injury (Reasons, at [39]), and
(d) there is no provision in the legislation that precludes a referral to an AMS for an assessment of whole person impairment arising from a psychological injury (Reasons, at [40]).
SUBMISSIONS, DISCUSSION AND FINDINGS
Primary psychological injury
Subsection 1 of section 65A of the 1987 Act provides:
“(1) No compensation is payable under this Division (either as permanent impairment compensation or pain and suffering compensation) in respect of permanent impairment that results from a secondary psychological injury.
Note: This does not prevent a secondary psychological injury from being compensated under section 67 as pain and suffering resulting from permanent impairment (but only if that permanent impairment results from a physical injury or a primary psychological injury).”
Subsection 5 of section 65A of the 1987 Act provides:
“(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.” (emphasis included)
The appellant argues that “post-traumatic” means “following an injury or traumatic event” and, as the “injury or traumatic event” was the physical injury sustained in the car accident, Mr Arsenovic’s post-traumatic stress disorder is a consequence of, or secondary to, the physical injury. It concedes that the Act envisages circumstances where there can be both a physical injury and a primary psychiatric injury, but argues that, in those cases, a worker would only be considered to have suffered a primary psychological injury where the evidence established that the worker’s psychological problems continued to flow from his or her reaction related to the circumstances of the incident, rather than a psychological reaction to the ongoing physical pain.
The appellant also submits:
(a) Dr Homsi noted no initial psychological symptoms, but recorded Mr Arsenovic developing some anxiety, which he believed was as a result of minimal improvement of (presumably) his physical injuries;
(b) Dr Oreb recorded no psychological symptoms on 28 October 2002. Though his report referred to mental stress, anxiety and depression, he did not state whether those symptoms were a result of a primary psychological reaction or psychological problems secondary to the physical problems;
(c) there is no evidence of when Mr Arsenovic first saw a psychiatrist or psychologist for treatment;
(d) there is no “necessary characteristic” of a dysthymic disorder to make it either a primary or a secondary psychological disorder;
(e) Dr Clark’s report should be interpreted as concluding that the post-traumatic reaction has been a reaction principally to the effects of Mr Arsenovic’s “pains” from his physical injuries;
(f) Dr Clark has detailed no reasoning process connecting Mr Arsenovic’s severe depression and his conclusion that the condition is a primary psychiatric injury. Severe depression more usually arises from the effects of physical injuries. The doctor’s use of the term “post-traumatic stress disorder” does not automatically make it a “primary psychological injury”, and
(g) Mr Arsenovic’s current psychological condition is secondary to his physical injuries.
It is submitted on behalf of Mr Arsenovic that:
(a) motor vehicle accidents are a classic cause of primary psychiatric injury and reference is made to the evidence linking Mr Arsenovic’s psychological symptoms to the trauma of the accident;
(b) the evidence is that Mr Arsenovic was referred to Dr Kecmanovic as a consequence of his preoccupation with the accident, his persistent panic attacks and nightmares. This presentation is entirely consistent with a primary psychiatric injury as diagnosed by Dr Clark, and
(c) Dr Zepinic and Dr Clark both list symptoms consistent with a primary psychiatric injury and Dr Clark specifically diagnosed such an injury.
The appellant’s submissions are unpersuasive. The only evidence of any probative value on the issue in dispute is the evidence from Mr Arsenovic and Dr Clark, which I accept.
The appellant’s first argument seems to accept that Mr Arsenovic has PTSD, but because “post-traumatic” means “following an injury or traumatic event” then, because Mr Arsenovic’s “injury or traumatic event” was physical, the psychological symptoms are a consequence of, or secondary to, the physical injury and section 65A applies. The evidence does not support that submission. Dr Clark did not base his conclusion on the effects the physical injury have had on Mr Arsenovic, but on his view that it was probable that Mr Arsenovic “had a shock episode or Acute Stress Disorder at the time” of the accident.
Whether a worker has sustained a primary psychological injury depends on an assessment of all the evidence, lay and expert, in the particular case. It is not to the point that neither Dr Homsi nor Dr Oreb recorded that Mr Arsenovic complained of psychological symptoms in their initial consultations. Dr Oreb did record a diagnosis of “mental stress, anxiety and depression” and referred Mr Arsenovic to Dr Kecmanovic for treatment. It is of no consequence that neither general practitioner referred to Mr Arsenovic suffering a primary psychological injury.
Though it is unclear when Mr Arsenovic was first referred for psychological treatment, that is not determinative of the issue before me. Mr Arsenovic’s uncontested evidence, which I accept, is that he was referred to Dr Kecmanovic as a consequence of his preoccupation with the accident, his consistent panic attacks and nightmares, not because of his pain. The evidence from Dr Clark establishes, and I accept, that Mr Arsenovic suffers from a psychological injury, namely, PTSD and depression as a result of the accident on 1 October 2002. His symptoms – anxiety, depression, and hyper vigilance – are consistent with that diagnosis. The appellant has called no persuasive evidence to rebut Dr Clark’s conclusion.
Whilst Dr Zepinic’s history also records factors that suggest that Mr Arsenovic’s current psychological symptoms may well be contributed to by his inability to return to work, the only probative medical opinion on whether the injury is a primary or secondary psychological injury is from Dr Clark. I find Dr Clark’s opinion, based on a detailed and largely accurate history, his unchallenged findings on examination, and his qualifications as a consultant psychiatrist, to be persuasive and compelling. Though Dr Clark referred to Mr Arsenovic having an expectation that he would shrug off his pains, he did not base his conclusion on Mr Arsenovic’s continuing pain and did not take a history that suggested the psychological symptoms had resulted from the pain. I therefore reject the appellant’s submission that Dr Clark’s report should be interpreted as concluding that the post-traumatic reaction is a reaction to the effects of Mr Arsenovic’s pain from his physical injuries.
As with the question of whether employment is a substantial contributing factor to an injury, the question of whether a worker has sustained a primary psychological injury or a secondary psychological injury is a question for the Commission to determine on the basis of the whole of the evidence. Though the medical evidence will always be of great importance, it is not the only evidence to be considered. Based on Dr Clark’s evidence, I am comfortably satisfied that Mr Arsenovic sustained a primary psychological injury as a result of the car accident. Dr Clark explained the basis for his diagnosis and conclusion and that is sufficient to enable me to conclude that Mr Arsenovic’s injury is a primary psychological injury. It is therefore of no consequence that Dr Clark did not explain why he felt Mr Arsenovic’s injury was a primary psychological injury as opposed to a secondary psychological injury. That conclusion is consistent with his history and diagnosis and provides a sound basis for my conclusion that Mr Arsenovic has sustained a primary psychological injury.
The symptoms recorded by Dr Zepinic – intrusive images of the accident, fear of driving, fear of another accident, feeling uncomfortable if he drives past the accident scene or any other accident, insomnia – are not challenged by any evidence from the appellant and are not inconsistent with Dr Clark’s conclusion that Mr Arsenovic’s psychological injury has resulted from the trauma of the accident and is not secondary to the physical injury he received in it. Though Dr Zepinic does not suggest that the worker’s psychological symptoms are secondary to his physical injury, he expressed no clear opinion on the issue before me and I therefore base my decision on Dr Clark’s evidence. It follows that the appellant’s criticisms of Dr Zepinic’s report are of no consequence.
The submission that severe depression more usually arises from the effects of physical injuries is unsupported by any evidence and ignores the fact that Dr Clark’s full diagnosis is that Mr Arsenovic has PTSD and “ensuing Severe Depression”.
For reasons that have not been explained, the appellant has only tendered Dr Edwards’ “supplementary report”. I infer that the doctor prepared this report as a supplement to a more detailed report. In the absence of any history or findings on examination, the supplementary report is clearly of little, if any, weight because it merely provides a bare conclusion (Makita). Why it was admitted without the doctor’s main report is unclear. Nevertheless, it having been admitted, I have considered it and, for the reason set out above, prefer Dr Clark’s evidence.
Section 65A(4)
Section 65A(4) of the 1987 Act provides:
“(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.”
The appellant submits that, as Mr Arsenovic has already “received” lump sum compensation for his physical injury, he is now precluded from receiving lump sum compensation for any impairment he may have from his primary psychological injury.
It is submitted on behalf of Mr Arsenovic that section 65A (4) relates to the receipt of compensation and does not preclude the making of a claim. The only time the receipt of lump sum compensation for a physical injury becomes relevant, it is submitted, is when there is an assessment of a primary psychiatric injury whole person impairment of 15 percent, or more, and compensation has been paid for that percentage, or more, for a physical injury. In such circumstances it is conceded there would be no entitlement to lump sum compensation in respect of the psychological injury.
I do not accept the appellant’s interpretation of section 65A(4). It is clear that, if a worker receives a primary psychological injury and a physical injury arising out of the same incident, he or she is only “entitled to receive” lump sum compensation in respect of the impairment resulting from one of those injuries. That does not mean, however, that if a worker has received lump sum compensation in respect of a physical injury and has a later assessment of a psychological impairment resulting from the same incident, he or she is prevented from claiming lump sum compensation for the psychological injury. The provision does not act to exclude workers from claiming compensation to which they are otherwise entitled, but merely limits the recovery of compensation in certain specified circumstances. Those circumstances, on the evidence before me, do not apply in the present case.
Subsections (a) and (b) of section 65A(4) make it clear that the impairments resulting from the psychological injury and from the physical injury must be assessed separately (section 65A(4)(a)). A worker “is entitled” to receive lump sum compensation for whichever injury results in the “greater amount of compensation being payable” and is not entitled to compensation for the impairment resulting from the other injury (section 65A(4)(b)). In other words, if there are two whole person impairment assessments, one as a result of the physical injury and one as a result of a psychological injury, the worker is entitled to receive lump sum compensation for the injury that results in the greater compensation.
At the time of the 2004 settlement, Mr Arsenovic was only “entitled to receive” the lump sum compensation in respect of the impairment as a result of his physical injuries. He made no claim for any other impairment. The 1987 Act, however, has always acknowledged that workers’ conditions change over time and, as a result, workers are entitled, and have always been entitled, to claim additional compensation in the event of a deterioration in a previously compensated condition or injury (see section 66(2A) and (2B) of the 1998 Act). The question of Mr Arsenovic having a potential entitlement to receive lump sum compensation for his psychological injury did not arise until he made that claim in 2008. Even now, it has not formally arisen because he has not been assessed by an AMS as being entitled to lump sum compensation in respect of his psychological injury.
Section 65A(4) does not apply until there are two assessments, one for the impairment resulting from the physical injury or injuries and one for the impairment resulting from the psychological injury. That situation will not arise until two AMSs have issued two separate binding MACs, one for the physical injury or injuries and one for the psychological injury. Once the impairment/s from the separate injuries have been separately assessed, then, but only then, does section 65A(4) apply and the worker is only entitled to receive lump sum compensation in respect of the injury that resulted in the greater amount of compensation.
If the impairment from his psychological injury is assessed to be less than 15% Mr Arsenovic will have no entitlement to lump sum compensation in respect of that injury (section 65A(3)), and he will be entitled to receive the whole person impairment compensation assessed as a result of his physical injuries. If, on the other hand, the impairment from his psychological injury is assessed to be 15% or greater, then he will be entitled to receive the compensation payable for that impairment, because it will give the “greater amount of compensation”. He will not, however, be entitled to receive lump sum compensation resulting from both injuries and, if there is an entitlement to lump sum compensation for the psychological injury, the employer will be entitled to a credit for the previous payment of $6,250.
The appellant further argues that there is no evidence of whether there was a primary psychological injury at the time of the settlement of the initial lump sum claim or, if so, whether any primary psychological injury impairment was greater than the physical injury impairment. As Mr Arsenovic carries the onus, so it is submitted, it is argued that his argument cannot be accepted. The operation of section 65A(4) depends on the quantum of compensation payable as a result of the two separate injuries (the psychological injury and the physical injury), not on the occurrence of the injury or injuries. The Commission’s records reveal that Dr Meakin’s MAC was the only MAC issued between 2004 and the arbitration on 13 March 2009 and that Mr Arsenovic has made no previous claim for lump sum compensation for a psychological injury. There has never been a whole person impairment assessment by an AMS in respect of Mr Arsenovic’s psychological injury and there has never been any agreement about that claim. The GIO expressly disputed the claim in its section 74 notice. The only reasonable inference from the evidence is that, as at 7 April 2004, Mr Arsenovic had no entitlement to lump sum compensation in respect of his psychological injury. Therefore, if the worker carries the onus on this issue (which I expressly refrain from deciding in the absence of detailed argument) I am comfortably satisfied that he has discharged that onus.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded, for the reasons given in this decision, that the Arbitrator’s decision is correct and I agree with her conclusions.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 24 March 2009 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal.
Bill Roche
Deputy President
17 July 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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