RSL (QLD) War Veterans' Homes Ltd v Watkins
[2013] NSWWCCPD 44
•27 August 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | RSL (QLD) War Veterans’ Homes Ltd v Watkins [2013] NSWWCCPD 44 | ||
| APPELLANT: | RSL (QLD) War Veterans’ Homes Ltd | ||
| RESPONDENT: | Robyn Louise Watkins | ||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-10082/12 | ||
| ARBITRATOR: | Mr R Bell | ||
| DATE OF ARBITRATOR’S DECISION: | 3 May 2013 | ||
| DATE OF APPEAL DECISION: | 27 August 2013 | ||
| SUBJECT MATTER OF DECISION: | Injury; assessment of expert evidence; application of principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 to proceedings in the Commission; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; factual findings; alleged failure to give reasons; whether worker suffered a primary psychological injury or secondary psychological injury; ss 4 and 65A of the Workers Compensation Act 1987; failure to serve relevant medical report as required by cl 46(3) of the Workers Compensation Regulation 2010 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |
| Respondent: | Stacks Goudkamp Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 3 May 2013 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | ||
INTRODUCTION
The worker in this matter suffered a serious injury to her low back and coccyx when she fell heavily at work on 23 February 2009. She subsequently developed a significant psychological condition. The appeal raises two main issues: first, whether the Arbitrator erred in finding that the worker also injured her right hip in the fall and, second, whether he erred in finding that the fall caused a primary psychological injury and not a secondary psychological injury.
Whether a psychological injury is a primary or secondary psychological injury is important because no permanent impairment compensation is payable in respect of permanent impairment that results from a secondary psychological injury (s 65A(1) of the Workers Compensation Act 1987 (the 1987 Act)). A secondary psychological injury is defined in s 65A(5) to mean “a psychological injury to the extent that it arises as a consequence of, or secondary to, physical injury”. A primary psychological injury is defined to mean a psychological injury that is not a secondary psychological injury.
BACKGROUND
The respondent worker, Robyn Watkins, worked for the appellant employer, RSL (QLD) War Veterans’ Homes Ltd (the appellant) at two of its care facilities. She worked as a cleaner at one and in the kitchen at the other. On 23 February 2009, she slipped on hydraulic fluid on the concrete floor of the kitchen where she was working. As a result, she fell and the right side of her body and her head collided with the concrete floor knocking her out. An ambulance was called and took her to Belmont District Hospital where she was observed for the remainder of the day. She did not return to work until 22 July 2009.
Ms Watkins gave evidence that she was initially concerned with her lower back and her legs. She had sharp and severe pain in her back and coccyx, but said there “was also a constant ache or dull pain in [her] right hip area that was exacerbated from walking”. The pain in the right side of her body was more significant than the pain in the left side. After her return to work on light duties, she complained of her hip pain to her supervisor and to her co-workers. Prior to the fall at work, she had not had any previous injuries to, or pain in, her right hip.
She sought treatment from her general practitioner, Dr Robinson, who, “for some months”, was not concerned by the dull ache to the right side of her body “as he stated it was from the swelling and [the] back injury and would subside”. As her condition was deteriorating, in late 2010 Dr Robinson referred her for a bone scan, which was done on 10 December 2010.
Dr Howarth, consultant physician nuclear medicine, conducted the bone scan. He took a history that Ms Watkins fell onto her buttock region in February 2009 and that she had persistent coccygeal and sacral pain and “right lateral pelvic pain with clinical features of ilio-tibial band syndrome”.
The bone scan revealed a fracture of the coccyx with incomplete healing and, consistent with Ms Watkins’ clinical features, a “right proximal ilio-tibial band syndrome”. It also showed a “small focus of increased uptake in the right greater trochanter”, which was “consistent with enthesopathy at a site of bony attachment of [the] tensor fascia lata muscle”.
She was given an injection in her right hip, the cost of which, together with the scan, was met by the appellant’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz). Ms Watkins said that, as a result of the scan, it was apparent that there had been a tear of a muscle in her right hip.
Dr Robinson also referred Ms Watkins to Professor Ghabrial, orthopaedic and spinal surgeon, who she saw on 7 September 2011. He took a history of the fall and reviewed the bone scan. He arranged for a CT scan of Ms Watkins’ lower back, which revealed a right L5/S1 disc protrusion in contact with the right S1 nerve root and similar changes at L4/5. In a medicolegal report dated 16 February 2012, Professor Ghabrial stated that Ms Watkins sustained the following injuries in the fall:
(a) fracture of the coccyx;
(b) post traumatic trochanteric bursitis of the right hip;
(c) right L5/S1 disc protrusion with right S1 radiculopathy, and
(d) right L4/5 disc protrusion.
Professor Ghabrial assessed Ms Watkins to have a 16 per cent whole person impairment as a result of the above injuries.
Dealing with the emotional consequences of the fall, Ms Watkins said that she had a significant fear of falling. She was fearful of walking on any surface, which was exacerbated when walking up or down gradients, something she avoided. She had flash backs and nightmares of the accident. She was very concerned for the safety of friends who wear high heels. Every evening, before attempting to sleep, she checked to ensure that all objects were placed where they would not trip her. Her sleep was disturbed. While on light duties, Ms Watkins suffered a significant anxiety attack when she was requested to deliver mail but was unable to do so because the appellant’s premises are on a slope and the ground is uneven. A nurse saw her and took her to head office.
Because of psychological symptoms that developed after the fall, Dr Robinson referred Ms Watkins to Dr Kim Street, consultant psychiatrist, who saw her on 2 September 2011. In his report to Dr Robinson of the same date, Dr Street said that Ms Watkins was jumpy, hypervigilant, avoidant, and, at times, angry. She could not sleep and woke “reliving coming to on the concrete floor”. He diagnosed a “significant PTSD [post-traumatic stress disorder] (and Major Depression) from the work place accident” and commenced cognitive behavioural therapy to equip Ms Watkins with skills in “identifying and dealing with triggers to re-experiencing the traumatic event” (Dr Street’s medicolegal report 25 January 2012, page four).
By letter dated 23 February 2012, Ms Watkins’ former solicitors claimed permanent impairment compensation of $52,250 in respect of a 28 per cent whole person impairment, based on Dr Street’s assessment in his report of 25 January 2012. While the Application to Resolve a Dispute also refers to the 16 per cent whole person impairment caused by the injuries to the back, coccyx and right hip, it seems that (at this stage) only the claim for permanent impairment caused by the psychological injury is pressed. This is no doubt because of s 65A(4) of the 1987 Act, which states that 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 lump sum compensation in respect of the impairment resulting from one of those injuries.
In a s 74 notice issued on 16 August 2012, Allianz conceded that Ms Watkins had injured her back on 23 February 2009, but disputed that she had suffered a s 4 injury to her right hip. With respect to Ms Watkins’ psychological condition, Allianz issued a second s 74 notice on 30 November 2012 in which it disputed liability on the ground that, based on evidence from Dr Vickery, consultant psychiatrist, Ms Watkins had a Somatoform Chronic Pain Disorder with Psychological Factors and Panic Disorder with Agoraphobia, which was a secondary psychological injury not a primary psychological injury.
At the arbitration on 30 April 2013, Mr Coren, a solicitor, represented Ms Watkins and Mr Jobson, a barrister, represented the appellant. Neither side sought leave to call any oral evidence. After hearing brief submissions, the Arbitrator delivered an extempore decision in which he found in favour of Ms Watkins on both issues.
The Commission issued a Certificate of Determination on 3 May 2013 in the following terms:
“The orders made are as follows:
1.That the Commission finds that the applicant suffered injury to the right hip and primary psychological/psychiatric injury in the course of employment with the respondent on 23 February 2009, and that the employment was a substantial contributing factor to the injuries.
2.That the claim for [sic, under] section 66 of the Workers Compensation Act 1987 lump sum [compensation] for psychological/psychiatric injury; and injury to the lumbar spine on 23 February 2009 is remitted to the Registrar for referral to an Approved Medical Specialist (AMS).
3.That in addition to the documents attached to the Application to Resolve a Dispute and to the Reply, the documents annexed to Applications to Admit Late Documents filed by:
a)Applicant on 1 March 2013;
b)Respondent on 11 February 2013,
are admitted in evidence before the AMS.
4.That the respondent pay the applicant’s costs as agreed or assessed.
5.I certify this matter as complex for the purposes Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2010; there is to be an uplift of 10 per cent to the costs applicable to both parties.
Reasons for certification as to complexity:
The applicant submitted that the matter is complex for costs purposes, due to the difficult medical issues on the disputes as to the psychological and hip injuries. I agreed with their submissions for the reasons given at the conference, and consider that the increase should be in this instance 10 per cent pursuant Schedule 6, Table 4, Item 4.”
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.
ISSUES IN DISPUTE
The issues in dispute on appeal are whether the Arbitrator erred in:
(a) finding that Ms Watkins injured her right hip on 23 February 2009;
(b) failing to give adequate, or any, reasons for finding that Ms Watkins suffered an injury to her right hip;
(c) making a finding that was against the evidence, and
(d) failing to give adequate, or any, reasons for the finding that Ms Watkins suffered a primary psychological injury in the course of her employment.
It is convenient to deal with these issues under two headings: the hip injury and the psychological injury. A preliminary matter concerns an application by Ms Watkins to rely on fresh evidence or additional evidence on appeal and it is convenient to deal with that matter first.
FRESH EVIDENCE
Since the arbitration, Ms Watkins has instructed new solicitors. On 5 August 2013, those solicitors filed a Notice of Opposition to Appeal Against Decision of Arbitrator. Included in that document is an application to rely on fresh evidence or additional evidence on appeal.
The fresh evidence comprises:
(a) clinical notes from Dr Robinson from 25 May 2009 to 26 October 2010 and from 7 December 2010 to 8 August 2011, and
(b) a report from Dr Street addressed to Allianz dated 2 February 2011.
In support of the application to rely on fresh evidence, Ms Watkins’ solicitor, Ms Borrie, submitted that, “for some reason”, the notes from 25 May 2009 to 26 October 2010 were not provided to the worker’s former solicitors. They were requested by Ms Borrie and provided on 31 July 2013. The notes support the evidence from Ms Watkins that she complained to her general practitioner about sacral pain on more than two occasions.
Ms Borrie said that the notes from 7 December 2010 were “apparently not requested by the former solicitors”. She said that the transcript showed there was a question about who referred Ms Watkins to Dr Street and the notes confirmed that the referral was made by Dr Robinson. (This issue was resolved at the arbitration where it was agreed that Dr Robinson referred Ms Watkins to Dr Street (T4.25–42)).
Ms Borrie said that the report from Dr Street had not been provided to the worker’s former solicitors and “came to light in the course of [Ms Watkins’] current solicitor’s investigations”. The report provides an expanded explanation of Dr Street’s reasons for diagnosing PTSD. Ms Borrie submitted that, as the appellant had been in possession of the report and was aware of its contents, it was not prejudiced by its inclusion in the evidence on appeal.
In submissions dated 16 August 2013, but not filed with the Commission until 26 August 2013, that is, outside the timetable issued for the filing of submissions in reply, Mr Jobson opposed the introduction of the fresh evidence.
The admission of fresh evidence on appeal is governed by s 352(6) of the 1998 Act which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The admission of such evidence requires leave and is therefore discretionary. The Commission is not to grant leave to a party to rely on fresh evidence on appeal unless it is satisfied that:
(a) the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned, or
(b) failure to grant leave would cause substantial injustice in the case.
Consistent with the subsection, and the principles discussed in Akins v National Australia Bank [1994] FCA 1209; 34 NSWLR 155 and Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116, an applicant seeking leave to rely on fresh evidence (or evidence in substitution) must establish:
(a) that the evidence could not have been obtained with reasonable diligence for use at the arbitration;
(b) that the evidence is such that there is a high degree of probability that there would be a different result if the evidence had been available to the Arbitrator (whether the further evidence would have produced a different outcome must be addressed in the context of the grounds of appeal as well as separately from those grounds: Tjiong v Tjiong [2012] NSWCA 201 Meagher JA (Whealy and Barrett JJA agreeing) at [14]);
(c) that the evidence is credible, or
(d) that the failure to grant leave would cause substantial injustice in the case.
Essentially, the power to admit fresh evidence (or additional evidence) on appeal exists to “serve the interests of justice in preventing a substantial wrong” (Meagher JA (Beazley and Macfarlan JJA agreeing) in Levy v Bablis [2013] NSWCA 28 at [12]). In an appeal from the Full Court of the Family Court of Australia dealing with what is arguably a broader provision relating to fresh evidence on appeal (s 93A(2) of the Family Law Act 1975) than exists in s 352(6), McHugh, Gummow and Callinan JJ said in CDJ v VAJ [1998] HCA 67; 197 CLR 172 (at [111]):
“Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.”
Whether there will be a substantial injustice if the fresh evidence is excluded depends on the outcome of the appeal, without considering that evidence. As will become apparent from the reasons explained in this decision, the appeal is without merit and the Arbitrator’s decision is confirmed. It follows that there is no injustice if the application to rely on fresh evidence is refused and that is the order I make.
HIP INJURY
Submissions
Mr Jobson submitted that Professor Ghabrial did not see Ms Watkins until 7 September 2011, that is, more than two and a half years after the injury, and he was the first to take a history of an injury to the right hip. When faced with contrary evidence, the Arbitrator dismissed it, as it “concentrates on the coccyx” (T10.5).
He said the Arbitrator failed to give “appropriate weight to the bone scan dated 10 December 2010 with findings that were contrary to [Professor] Ghabriel’s [sic] 7 December 2011 opinion” (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang)).
He argued that Professor Ghabrial failed to provide the basis for concluding that Ms Watkins sustained an injury to the right hip and his reports did not satisfy the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) in that there is “insufficient evidence of any factual basis identified in the reports to conclude as Arbitrator Bell did”.
Furthermore, Professor Ghabrial’s history was not consistent with that given by Ms Watkins to Dr Robinson and the Arbitrator failed to give adequate reasons as to “why the clinical notes of [Professor] Ghabriel [sic] [were] accepted over those of Dr Robinson”. Mr Jobson referred to Pt 15 r 15.6 of the Workers Compensation Commission Rules 2011 (the Rules) and to Precision Valve Australia Pty Ltd v Nanda [2012] NSWWCCPD 48 (Nanda).
Mr Jobson referred to Dr Robinson’s “notes” for 30 April 2009 and 26 October 2009, which recorded sacral pain, and submitted that the Arbitrator “failed to explain how there is a causal link between the right hip not complained of for more than two years and the work injury on 23 February 2009” (Kooragang).
The Arbitrator conceded that there was no clinical evidence to support an injury to the hip, but used Ms Watkins’ statement in support of his finding.
Mr Jobson then (inaccurately) quoted the following passage from the decision, which he said was at page 14 of the judgment. The passage relied on actually starts at T13.26 and (correctly transcribed) reads:
“So I’ve preferred Dr [sic] Ghabrial’s opinion to that of Dr Watson because Dr Ghabrial’s opinion is consistent with Ms Watkins’ Statement, which I accept, and there’s no explanation from Dr Watson as to why it was that the symptoms came on at the time of the fall but there’s no relationship even though he recognises a condition. There were no symptoms prior to the fall. The onset was with the fall and that was seen as [of] secondary importance until it worsened and then the pathology was revealed in the bone scan and confirmed the injury.”
He submitted that “this interpretation is not available to him from the evidence that was put forward on behalf of [Ms Watkins]”.
Mr Jobson also argued that the Arbitrator failed to give adequate reasons why the reports of Professor Ghabrial were “sufficient for him to find that there was a causal link between the work injury and the alleged hip injury” (Nanda at [92]–[98]).
He concluded that the Arbitrator erred in failing to accept the evidence from Dr Pillemer, orthopaedic surgeon qualified by the appellant, who, on 5 September 2012, took a history of no discomfort in the hip area. He added that the Arbitrator did not give any, or any adequate, reasons why he rejected Dr Pillemer’s conclusion that Ms Watkins had coccydynia arising from the fall (Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419 (Strinic)).
With respect to the absence of complaint of hip pain in Dr Robinson’s evidence, Ms Borrie relied on the evidence from Ms Watkins that she had complained to the doctor about that pain, but his response was that it was all due to swelling from the back injury. The fact that Dr Robinson did not make a record of complaints of right hip pain was not proof that Ms Watkins did not mention it to the doctor, but, Ms Borrie submitted, indicated that he believed the hip pain was part of the back injury. She said that Dr Robinson also diagnosed a soft tissue injury and that it was 22 months before he referred Ms Watkins for a scan that revealed a fractured coccyx: that hinted at either a stoic patient or a busy general practitioner who did not take his patient’s complaints seriously enough to write all of them down.
In his submissions in reply, Mr Jobson said that Ms Watkins relied on a statement made well after the event as evidence that Dr Robinson was informed of the alleged right hip injury and that Ms Borrie’s submissions were “mere speculation”. He added that Ms Borrie’s submissions were non-responsive to the “primary submission of no history for [Professor] Ghabriel [sic] to come to the conclusion he did” and that her submissions did nothing more than to suggest that “if a complaint is mentioned in the statement it is conclusive evidence of injury”.
Discussion and findings
I do not accept Mr Jobson’s submissions.
Professor Ghabrial’s evidence must be read with the other evidence in the case. After giving unchallenged evidence that she had complained of right hip pain to her supervisor and her fellow workers, Ms Watkins said that Dr Robinson was “not concerned by the dull ache” to the right side of her body, because it was from “the swelling and back injury and would subside”. This evidence clearly indicated that Ms Watkins complained to Dr Robinson of her right sided symptoms, which undoubtedly included her right hip.
In light of Ms Watkins’ evidence, which the Arbitrator accepted, it was open to the Arbitrator to accept Professor Ghabrial’s opinion (which is discussed further below). It is not determinative that Ms Watkins’ statement was made some time after the event. As that evidence was consistent with Ms Watkins’ unchallenged evidence of having complained of hip pain to her work colleagues while on light duties, it was open to the Arbitrator to accept it.
While it is correct that Dr Robinson did not refer Ms Watkins for a scan until many months after the fall, whether that indicated that Ms Watkins was stoic or that Dr Robinson was a busy practitioner who did not take his patient’s complaints seriously enough to record them, is speculative. In any event, however, those matters are not determinative of the issue in dispute, which ultimately turned on the Arbitrator’s acceptance of the evidence from Ms Watkins.
Mr Jobson’s next submission (set out at [33] above) is difficult to understand. I have assumed his complaint is that the Arbitrator failed to give “appropriate weight” to the bone scan, which had findings that were contrary to Professor Ghabrial’s opinion. He did not expand on the submission, or refer to any parts of the evidence or the decision said to support it. Nor did he explain what weight the Arbitrator should have given to the bone scan.
Consistent with the evidence from Ms Watkins, the clinical history recorded by Dr Howarth in the report accompanying the bone scan of 10 December 2010 was as follows:
“Fall onto buttock region [in] February 2009. Persistent coccygeal and sacral pain. Also right lateral pelvic pain with clinical features of ilio-tibial band syndrome.”
Dr Howarth concluded that the “[c]linical features and scan appearance [were] consistent with right proximal ilio-tibial band syndrome”. Thus, Dr Howarth’s history and conclusion were consistent with, and supportive of, Ms Watkins’ case that she injured her right hip in the fall.
Contrary to Mr Jobson’s submission, Professor Ghabrial did not give an opinion on 7 December 2011 and I have assumed Mr Jobson was referring to the Professor’s report to Dr Robinson on 7 September 2011. In that report, Professor Ghabrial took a history that Ms Watkins suffered an injury to her lower back and sacro-coccygeal region on 23 February 2009 when she fell on concrete at work. On examination, he noted, among other things, tenderness over the greater trochanter of the right hip, consistent with right trochanteric bursitis, and that Ms Watkins walked with a limp. The hip was injected with steroids, which gave some help for three weeks.
In his medicolegal report of 16 February 2012, Professor Ghabrial repeated the history of Ms Watkins developing pain in her lower back radiating into her right leg and pain in the coccygeal region, and added that she also had pain in the right hip region. As this report was prepared without a further consultation, it is probable that Professor Ghabrial took the history of right hip pain at his examination on 7 September 2011. When he saw her on 19 October 2011, he suggested she may consider an injection for her right trochanteric bursitis and discussed surgery. His opinion was that, as a result of the fall, Ms Watkins suffered post traumatic trochanteric bursitis in her right hip.
I assume that Mr Jobson’s submission relates to Dr Howarth’s additional comment that there was “[n]o scan evidence of active trochanteric bursitis associated with this syndrome”. If that is the point being made, it was not argued at the arbitration (where Mr Jobson did not refer to the bone scan) and it is not open to argue on appeal that an Arbitrator erred in not dealing with a point never raised (Brambles Industries Ltd v Bell [2010] NSWCA 162 at [22] and [30]; 8 DDCR 111 (Bell)). Though Mr Jobson advanced no reason why the point should be allowed for the first time on appeal, I will deal with it.
As Professor Ghabrial expressly commented on the bone scan, it is reasonable to assume that he was aware of Dr Howarth’s comment. Nevertheless, as the treating specialist, he was entitled to express his opinion, based on the history, his findings on examination and his clinical judgment, which no doubt took into account the benefit Ms Watkins received from the steroid injection on 7 September 2011.
Dr Howarth’s reference to there being no “scan evidence of active trochanteric bursitis” was not determinative of whether there were clinical grounds for making that diagnosis. Nor was it determinative of whether Ms Watkins had injured her right hip in the fall. The critical point is, as I have already noted, Dr Howarth’s report provided corroboration of Ms Watkins’ evidence that she injured her hip in the fall.
The relevance of Kooragang to the issue of whether Ms Watkins suffered a s 4 injury to her right hip was not explained in the submissions. That case concerned a worker’s death from a heart attack that resulted from an accepted back injury several years earlier. It did not involve a dispute about whether a worker received an injury under s 4 of the 1987 Act. It was not an authority relied on at the arbitration and nothing in that decision advances the appellant’s position on appeal.
The complaint that Professor Ghabrial failed to provide the basis for his conclusion and that, therefore, his reports did not satisfy Makita, was not a point argued at the arbitration and it is not open to argue on appeal that an Arbitrator erred by not dealing with a point not argued at the arbitration (Bell). As Ms Borrie submitted, parties are normally bound by the conduct of their cases at first instance (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 at 71). Nevertheless, I have considered the argument and, for the reasons explained below, have determined that it is without merit.
The Court of Appeal examined the application of Makita to proceedings in the Commission, in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399. Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) said (at [82]) there could 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. However, 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”.
Her Honour added (at [83]) that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]). An expert’s reports must be read together, and with the other evidence tendered. That is because a deficiency in one part of the expert’s evidence “may be made good by other material, either in another report or in oral evidence” ([92]).
In Hancock, the primary judge rejected the evidence from the treating specialist (Dr Summersell) because he did not have a history of significant subsequent non-work incidents and he had not provided an “explanation of the scientific or other intellectual basis for the conclusion reached” (see the quote at [89] of Hancock). Dealing with the first point, Beazley JA said (at [88]) “the principle[s] in Makita do not require that there be an exact correspondence between the assumed facts upon which an expert opinion is based and the facts proved”.
Dealing with the second point, her Honour said, at [90]:
“Dr Summersell stated that, in his opinion, he suspected that ‘the subcutaneous changes are present due to a recent fall that [the appellant] had due to the pre-existing instability of his knee’. This opinion provided the scientific basis for the conclusion he reached in the respective reports, that the injury sustained in the work incident was responsible for the current condition of the appellant’s knee. Accordingly, there was no failure to comply with the second limb of Makita.” (emphasis included in original)
The scientific basis for Dr Summersell’s opinion was not explained in any greater detail than is present in Professor Ghabrial’s reports. What is required by way of an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [631]). However, the authorities are clear that an expert does not have to “offer chapter and verse in support of every opinion” (Sydneywide Distributors Pty Ltd vRed Bull Australia Pty Ltd [2002] FCAFC 157 at [89]). As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich [2005] NSWCA 152 at [170] “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”. In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports.
Consistent with Hancock, Professor Ghabrial’s opinion was based on:
(a) the history he took that Ms Watkins fell on a concrete floor at work on 23 February 2009 and developed lower back pain radiating to the right lower limb, pain in the coccygeal region and in “her right hip region”;
(b) the findings in the bone scan, and
(c) his clinical findings on examination on 7 September 2011, which included a finding of tenderness of the greater trochanter of the right hip, that Ms Watkins walked with a limp, and that a steroid injection gave her some help for about three weeks.
Professor Ghabrial’s history provided a “fair climate” for the acceptance of his opinion (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510) and his reports, when read together, provided the basis for his conclusion. His evidence complied with the principles governing expert evidence in the Commission and it was open to the Arbitrator to accept the Professor’s conclusions, along with Ms Watkins’ evidence, and to find that Ms Watkins suffered an injury to her right hip in the fall in February 2009.
I do not accept that the Arbitrator failed to give adequate reasons as to “why the clinical notes of [Professor] Ghabriel [sic] [were] accepted over those of Dr Robinson”. (I should record here that there are no “clinical notes” in evidence from Professor Ghabrial and I have assumed that Mr Jobson was referring to the Professor’s reports.) The Arbitrator correctly acknowledged (at T10.41) that Dr Robinson did not have a history of hip pain. He then considered Ms Watkins’ statement, from which he quoted the following passages, starting at T10.49:
“9. My initial concern with [my] physical injury following the accident was in relation to my lower back and both legs.
10. Following the accident, the pain in my right side was more significant than the pain in the left side of my body. The back and coccyx pain was sharp and severe. There was also a constant ache or dull pain in my right hip area that was exacerbated from walking.
11. I complained of this right hip pain verbally to my supervisor and fellow employees when undertaking light duties following the accident.
12. For some months following the accident, my general practitioner Dr Robinson was not concerned by the dull ache to my right side of the body as he stated it was from the swelling and back injury and would subside.
13. However in late 2010, as my condition was deteriorating, Dr Robinson referred me for a nuclear bone scan …”
He then reviewed the medical evidence from both sides. He acknowledged that Professor Ghabrial’s report about the hip was many months after the injury, but said, at T12.34:
“as in some of these sorts of injuries where multiple body parts are affected, there were greater initial problems than the hip. The coccyx obviously is a painful part of the body to fracture and that wasn’t initially identified and there’s a wrist as well. That was thankfully resolved but that was a focus as well right at the time and for a period afterwards.”
He added that the “focus” (T12.42) of both Dr Robinson and Ms Watkins “was on those apparently more acute areas where the pain was greater” (T12.43), as Ms Watkins said in her statement. He continued (at T12.49) that it was uncontested that Ms Watkins had complained of right hip pain when she was doing light duties after the fall and that she had no hip pain before the fall. He also noted (at T12.53) Ms Watkins’ evidence (which was also uncontested) that she had told Dr Robinson “about the right side pain” but he did not act on it, assuming it was part of the back injury. In the context of her statement, reading paragraphs [10], [11] and [12] together, the reference to “the right side pain” clearly included the right hip pain.
Having regard to the matters set out in the preceding paragraph, the Arbitrator said he did not find anything “sinister” (T13.19) about the lack of a reference to hip pain in Dr Robinson’s notes. In these circumstances, it was open to him to accept Professor Ghabrial’s evidence about the hip injury notwithstanding that Dr Robinson had not recorded a history of hip symptoms. Consistent with the principles in Mason v Demasi [2009] NSWCA 227 at [2], the Arbitrator approached the inconsistency between Dr Robinson’s evidence and Ms Watkins’ evidence with caution and gave appropriate reasons for accepting Ms Watkins’ evidence. His approach and conclusion were open and disclosed no error.
Mr Jobson’s reference to Pt 15 of the Rules and to Nanda was not accompanied by any relevant submission and was unhelpful. Part 15 r 15.6 of the Rules states:
“15.6 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294 (2) of the 1998 Act is to include:
(a) the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that lead the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
The Arbitrator’s reasons included findings on material questions of fact and referred to the evidence on which those findings were based. The reasons clearly explained the reasoning process that led the Arbitrator to his conclusions. As Mr Jobson made no submissions on any legal issues, and did not take the Arbitrator to any case law, the Arbitrator did not refer to any authorities.
In Nanda, it was found (at [104]) that the Arbitrator had failed to consider relevant evidence or the submissions dealing with that evidence. In the present case, the Arbitrator examined all of the relevant evidence and considered the arguments Mr Jobson presented. His reasons were adequate to explain the basis for his conclusion.
Mr Jobson’s next point commenced with a reference to Dr Robinson’s references on 30 April 2009 and 26 October 2010 to Ms Watkins complaining of pain in the sacral region. The complaint that the Arbitrator “failed to explain how there is a causal link between the right hip not complained of for more than two years and the work injury on 23 February 2009” is incorrect. The Arbitrator considered the evidence and (at T13.28) accepted Ms Watkins’ evidence. That evidence was that she complained of hip pain to her supervisor, her co-workers and Dr Robinson. It was open to the Arbitrator to accept that evidence.
The submission that the Arbitrator’s interpretation (encompassed in the quote set out at [38] above) was not available to him from the evidence, which Mr Jobson did not develop with any reasoned argument or reference to the evidence, is unsustainable. It is convenient to repeat the relevant quote:
“So I’ve preferred Dr [sic] Ghabrial’s opinion to that of Dr Watson because Dr Ghabrial’s opinion is consistent with Ms Watkins’ Statement, which I accept, and there’s no explanation from Dr Watson as to why it was that the symptoms came on at the time of the fall but there’s no relationship even though he recognises a condition. There were no symptoms prior to the fall. The onset was with the fall and that was seen as [of] secondary importance until it worsened and then the pathology was revealed in the bone scan and confirmed the injury.”
The accepted evidence from Ms Watkins was that the pain in her right hip was a “constant ache or dull pain”, whereas the pain in her back and coccyx was “sharp and severe”. This was consistent with the Arbitrator’s finding that it (the hip pain) was of “secondary importance” (though still important enough that she mentioned it to Dr Robinson and to her supervisor and co-workers) until the pain worsened (in 2010) and the bone scan revealed pathology in the hip and “confirmed the injury”. This conclusion was open to the Arbitrator, especially in light of Ms Watkins’ further evidence that she had no hip pain before the fall.
The assertion that the Arbitrator did not give adequate reasons why the reports of Professor Ghabrial were “sufficient for him to find that there was a causal link between the work injury and the alleged hip injury” is untenable. With respect to Professor Ghabrial’s opinion on whether Ms Watkins injured her right hip in the subject fall, and the acceptance of Ms Watkins’ case generally, the Arbitrator said:
(a) on 7 September 2011, the Professor noted tenderness of the greater trochanter (referred to in the transcript at T9.51 as the “graduate trochanter”) and that Ms Watkins walked with a limp (T9.52);
(b) in Professor Ghabrial’s report of 16 February 2012, he noted the history of the fall on 23 February 2009 and that Ms Watkins developed lower back pain and pain radiating to the right lower limb and “also complained of pain in the coccygeal and neck region and right hip region” (T10.9) (the reference to neck pain appears to have been incorrect, but nothing turns on this);
(c) Professor Ghabrial noted the injury as a result of the fall, “including the right hip post traumatic trochanteric bursitis” (T10.16);
(d) the bone scan, which was “the basis of that opinion [by Professor Ghabrial]” (T10.19), showed “clinical features [and] scan appearance[s] consistent with right proximal iliotibial [sic] band syndrome” (T10.24);
(e) Professor Ghabrial took a history of what happened and concluded that the hip symptoms were related to the fall (T12.21);
(f) Professor Ghabrial’s “diagnosis and opinion as to cause is consistent with Ms Watkins’ Statement as to the symptoms in the hip area from the time of the injury through to the end of 2010” (T12.24);
(g) the focus of Dr Robinson and Ms Watkins (initially) was on the more acute areas “where the pain was greater” (T12.44). The back and coccyx pain being “sharp and severe whereas the right hip pain was a constant ache and dull pain made worse by walking” (T12.46);
(h) it was uncontested that Ms Watkins complained of right hip pain when she was doing her light duties after the fall and that she had no pain in that area before the fall (T12.49). She also reported that she told Dr Robinson about the right side pain “but they didn’t act on it” (T12.53–T13.1). It was assumed to be, Ms Watkins said, and treated as, part of the back injury (T13.1);
(i) many things are not recorded in clinical notes and there was nothing sinister about that (T13.17);
(j) the hip is in “close proximity” to the “other area of injury” (T13.21);
(k) there was an “onset of pain in the right side after the fall” (T13.22) and Professor Ghabrial found “the fall to be the cause” (of the hip injury) (T13.24);
(l) he preferred Professor Ghabrial’s opinion to that of Dr Watson because it was consistent with Ms Watkins’ statement, which he accepted, and there was no explanation from Dr Watson as to why it was that the symptoms came on at the time of the fall but there is no relationship (with the fall) “even though he recognised a condition” (T13.26), and
(m) the onset (of the hip pain) was “with the fall and that was seen as [being of] secondary importance until it worsened and then the pathology was revealed in the bone scan and confirmed the injury” (T13.32).
Based on the above analysis, the Arbitrator concluded (at T13.36) that he was satisfied Ms Watkins had discharged the onus of proof and that she injured her right hip in the fall on 23 February 2009.
As previously noted, Professor Ghabrial based his opinion on three things: Ms Watkins’ history, his findings on examination, and the pathology revealed in the bone scan. As to the first point, the Arbitrator accepted Ms Watkins’ evidence that she injured her hip in the fall, that she complained of hip pain to her supervisor, and that she had mentioned her hip symptoms to Dr Robinson. He also accepted that she had no hip symptoms prior to the fall. These findings were open and were consistent with the evidence.
As to the second point, Professor Ghabrial’s findings on examination and Ms Watkins’ complaints of pain in her hip were not challenged. The inconsistency between Ms Watkins’ evidence and Dr Robinson’s evidence raised an issue that the Arbitrator considered in detail and resolved, for the reasons the Arbitrator gave, in favour of Ms Watkins.
As to the third point, relating to the findings in the bone scan, the Arbitrator preferred Professor Ghabrial’s evidence because Dr Watson had not explained why the hip symptoms, which the Arbitrator accepted (based on Ms Watkins’ evidence) started at the time of the fall, but were unrelated to it, even though he recognised a condition in the hip that would explain her hip symptoms. That conclusion was open to him and was consistent with the evidence.
The Arbitrator’s reasons were clearly adequate to explain the grounds that led him to his conclusions concerning the issues in dispute (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 at [100]).
The submission that the Arbitrator erred in not accepting the evidence from Dr Pillemer is without merit. The only submission Mr Jobson made at the arbitration about Dr Pillemer’s evidence was at T2.30, where he said Dr Pillemer “conclude[d] that the injury is related to the coccyx - the coccygeal area rather than the area of the hip”.
Dealing with Dr Pillemer’s evidence, the Arbitrator said, at T11.45:
“And we’ve got Dr Pillemer as well but he doesn’t really directly mention the hip. He’s more talking about the coccyx. No specific mention there.”
On appeal, Mr Jobson submitted that Dr Pillemer took a history of no discomfort in the hip area and the Arbitrator did not give adequate reasons for rejecting the doctor’s conclusion. Though Mr Jobson referred to Strinic, he made no submission about the relevance of that case to the issue on appeal.
Dr Pillemer took a history that Ms Watkins slipped and fell on 23 February 2009, landing on her right side and striking her head. She injured her coccyx and lower lumbar region. She had significant ongoing problems, particularly in relation to her coccyx but also extending across the lumbar region, both buttock areas and down her posterior thighs to her knees. Dr Pillemer recorded that Ms Watkins had had tablets, physiotherapy and an injection in her right hip area, which helped for about three months. Significantly, Dr Pillemer did not suggest that the need for the injection did not result from the injuries sustained in the fall.
Ms Watkins’ complaints on examination were of “widespread symptoms in the lumbar region going to both sides and down into the coccyx and into both buttock areas and into the posterior aspect of both thighs”. On direct questioning, she did “not have any discomfort in the lateral hip area at the present time”. He concluded that she was suffering from coccydynia.
The obligation to give reasons is related to and dependent upon the submissions presented at the hearing (Bell at [22]). Given the fleeting reference Mr Jobson made to Dr Pillemer’s evidence, it is hardly surprising that the Arbitrator did not deal with it in greater detail. The Arbitrator’s observation that there was “[n]o specific mention there” (of the hip) was essentially correct. However, the absence of a complaint of hip pain to Dr Pillemer and the lack of discomfort in the lateral hip area at the time of his examination was not determinative of whether Ms Watkins injured her right hip in the fall, though it is obviously relevant to the degree of whole person impairment alleged to have resulted. The Arbitrator was required to assess the whole of the evidence. That evidence included the evidence from Professor Ghabrial and Ms Watkins, discussed above, which the Arbitrator accepted. The acceptance of that evidence meant that Dr Pillemer’s conclusion carried little weight on the injury issue and no further analysis was required.
Mr Jobson’s reference to Strinic was surprising. That case concerned whether a judge of the District Court had used his own medical knowledge, gained from experience in personal injury litigation, as opposed to the evidence tendered, to determine the issues in dispute. The Court of Appeal confirmed that courts must determine cases on the evidence and that the District Court is not a court of specialist jurisdiction and the principles that apply to such courts do not apply to it (Beazley JA (as her Honour then was) (Ipp and Basten JJA agreeing) at [58]).
As there is no suggestion that the Arbitrator used his own medical knowledge, as opposed to the evidence tendered, to determine Ms Watkins’ claim, it is difficult to see what relevance Strinic has to the present appeal. In any event, Strinic (at [58]) expressly acknowledged the expertise of jurisdictions such as the former Compensation Court of NSW in determining questions of medical causation. As the Commission has assumed the role previously performed by the Compensation Court of NSW, it may be assumed that it has the same expertise (Grasa v Roads & Maritime Services [2013] NSWWCCPD 30 at [61]–[62]).
It follows that this ground of appeal fails.
PSYCHOLOGICAL INJURY
Submissions
Mr Jobson referred to the following statement by the Arbitrator, at T18.14:
“The overwhelming weight of the evidence is of that cause, not the suffering of pain secondary to the injury. I prefer Dr Street as treating specialist to Dr Vickery as to diagnosis and opinion generally.”
The Arbitrator’s reference to “that cause” was accepted by Mr Jobson to be a reference to the injury (the fall) on 23 February 2009. Mr Jobson submitted that the Arbitrator failed to give reasons as to why he accepted Dr Street’s opinion.
He said that the Arbitrator erred in finding that the psychiatric impairment currently experienced by Ms Watkins was a “primary injury” and that, in the absence of any evidence, Ms Watkins relied upon the report of Dr Street dated 26 January 2012. He said that Dr Street failed to “relate the report in such a way as to allow Arbitrator Bell to find that it is a primary injury”. Dr Street’s report could only be used, so it was argued, to conclude that Ms Watkins has a psychiatric problem, but it “gives no history of psychiatric problems commencing within a relatively short period of time after the injury”.
He added that Dr Robinson’s clinical notes did not provide the Arbitrator “with significant nexus to find that [the] psychiatric injury was a primary injury” (Nanda).
He said that the Arbitrator failed to give reasons why the definition in “sub-section 5 of Section 55.8A of the Workers Compensation Act 1987 of secondary psychological injury was not the applicable finding”.
He said the Arbitrator “failed to explain his reasoning in favouring a sufficient connection with the injury to allow him to conclude a psychological primary injury rather than take into account [a] proper interpretation of all of the evidence in that the psychological problems arose secondary to the injury” (Kooragang; South West Area Health Service v Dyer [2012] NSWWCCPD 46 at [58]-[60] (Dyer)).
On the other hand, Mr Jobson submitted, the report from Dr Vickery concluded that Ms Watkins was suffering from a secondary psychological injury. The Arbitrator erred in giving weight to the view of Dr Street as against that of Dr Vickery and he failed to give any or any adequate reasons why the view of Dr Vickery should be rejected.
His last point was that “[l]ack of treatment around the time of the injury and lack of complaint to the GP were also not given sufficient weight by the Arbitrator” (Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 (Shore)).
Dealing with the reference to Ms Watkins reflecting on the injury by way of flashbacks and nightmares, Mr Jobson submitted, in reply, “[n]o contemporaneous evidence is given to support the proposition of a primary injury”. He said that what was put forward “only supports the proper finding that the [psychological] injury was secondary to the fall”.
Discussion and findings
I do not accept Mr Jobson’s submissions.
The Arbitrator correctly noted that the two issues for him to determine were what was Ms Watkins’ psychological condition and was that condition a primary psychological injury or a secondary psychological injury.
The Arbitrator considered the evidence from Dr Street and (at T14.14) recounted the doctor’s observation that when Ms Watkins was:
“drawn to the workplace incident she breathed more rapidly. She was flushed and was less able to respond to questions. She was tearful at times when attempting to articulate the aftermath of the workplace event.”
In answer to the question of whether Ms Watkins has suffered any permanent impairment in relation to her psychological condition, Dr Street said, as noted by the Arbitrator at T14.23:
“Yes, Ms Watkins has suffered significant permanent impairment as a result of her psychiatric injuries. Her P.T.S.D. and Major Depression are primary diagnoses. She has reached maximum medical improvement, and has been stable for more than three months.”
The Arbitrator then recorded that Dr Street went through the “ratings scale” (T14.29) relating to her impairment due to her psychological condition. He said (at T14.36) that Dr Street addressed the diagnostic criteria (under DSM IV TR) for PTSD and found that, except for one (ability to recall an important aspect of the trauma) Ms Watkins had all of the clinical symptoms listed to qualify for that diagnosis. Those symptoms included, but were not limited to, flashbacks, recurrent distressing dreams, and reaction to cues that symbolised or resembled an aspect of the traumatic event.
Significantly, all of the criteria in DSM IV for PTSD relate to the consequences of exposure to a traumatic event, as opposed to symptoms (such as chronic pain) that arise as a “consequence of, or secondary to, a physical injury”. In this case, the traumatic event was the fall that knocked Ms Watkins unconscious and required her to be taken to hospital by ambulance. The Arbitrator (at T17.6) rejected Mr Jobson’s submission (which was inaccurate in any event) that Dr Street’s evidence should not be accepted because he found all the elements of PTSD to be present, correctly noting that the doctor’s clinical assessment was consistent with Ms Watkins’ statement “as to those symptoms” (T17.11).
Consistent with Dr Street’s evidence, the Arbitrator properly referred (at T14.51–T15.6) to Ms Watkins’ evidence of her fear of falling and fear of walking on surfaces with uneven grades (her actual evidence was that she was “fearful of walking on any surface”, which was “exacerbated when she was required to walk up and down uneven grades”), her experiencing flashbacks and nightmares of the accident, her concern for people wearing high heels, her concern about safety and the possibility of a trip and fall, her sleep interruptions, and her anxiety attacks (including her anxiety attack when walking on a slope at work while on light duties).
The Arbitrator then noted Dr Vickery’s diagnosis of Somatoform Chronic Pain Disorder with Psychological Factors and Pain Disorder with Agoraphobia, which the doctor felt was secondary (to the injury), because it came on as a result of the pain from the (physical) injuries, rather than being directly related to the incident itself. Overall, the Arbitrator felt that Dr Vickery’s history was “pretty similar” (T15.27) to that recorded by Dr Street. Dr Vickery talked about Ms Watkins suffering from panic attacks and looking for exits in shopping centres. He also noted that she remembered going from work in an ambulance and felt sick when she hears an ambulance siren because the fall scared her and she did not ever want to fall again.
The Arbitrator acknowledged (at T16.1) that there were differences between Dr Vickery and Dr Street, though he did not fully explore those differences (I note that those differences had not been explored in submissions before him). He also acknowledged that Dr Street did not give an (express) opinion about whether Ms Watkins’ condition is a primary psychological injury or a secondary psychological injury. However, he said that he did not see a problem with that because it was a legal question for determination by an Arbitrator. I agree.
The question of whether a worker has suffered a primary psychological injury or a secondary psychological injury depends on an assessment of all the evidence, lay and expert. That a doctor does not address the ultimate legal question to be decided is not fatal. The judge (or Arbitrator) must decide such a question on all the evidence, and lay evidence may carry the day over an opposing expert (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In any event, in the present case, for reasons explained below, Dr Street’s evidence is consistent with Ms Watkins having suffered a primary psychological injury.
The Arbitrator continued that Dr Street’s opinion “overall” was “quite clear” (T16.24) and supported a conclusion that Ms Watkins suffers a primary psychological injury. He said that Dr Street’s two reports, when read together, created “a picture that connects the symptoms of the condition to the incident of injury” (T16.40). That was because:
“All of the thoughts and feelings and notations that Dr Street’s recorded relate to things like the ambulance and the fear arising from that incident which is cued by things like uneven ground - walking on uneven ground and the possibility of falling again. It’s about the fall.” (T16.41) (emphasis added)
The Arbitrator’s reference to Dr Street’s two reports was a reference to his report of 2 September 2011 to Dr Robinson and his medicolegal report of 25 January 2012. In the first report, Dr Street said that Ms Watkins had “significant PTSD (and Major Depression) from the work place accident” (emphasis added) and that she had a “full hand of PTSD symptoms”. In the second report, he recorded, among other things, that Ms Watkins was tearful at times when attempting to articulate the aftermath of the “workplace event” and, significantly, that she met all but one of the diagnostic criteria for PTSD. Those criteria related Ms Watkins’ reaction to the traumatic event, namely, the fall, rather than the pain caused by her physical injuries.
Thus, the Arbitrator’s statement that “[i]t’s about the fall” was well justified by the evidence and may well have been expressed “it is all about the fall”. That is the only logical conclusion from Dr Street’s evidence where he said that Ms Watkins had significant PTSD and Major Depression “from the work place accident”. That was a clear and unequivocal reference to the trauma of the fall itself.
Consistent with his statement that it is “about the fall”, the Arbitrator added (at T16.48) that “[i]t’s not about the pain”. In other words, he found that Ms Watkins’ psychological condition is not “a consequence of, or secondary to,” her physical injuries.
Dealing with Dr Vickery’s opinion that the condition is due to Ms Watkins’ pain, the Arbitrator expanded on his earlier statement that it was not about the pain, and said, “the evidence isn’t that it’s the pain that is what is driving the development of the condition” (T16.53 – T17.2). He said (at T17.14) that Dr Vickery noted an absence of pain behaviour on presentation and, though pain was an issue from time to time, there was no evidence that pain brought on Ms Watkins’ (psychological) condition. The evidence was that the focus of Ms Watkins’ concern was “the incident of injury itself” (T17.22). In other words, Ms Watkins’ psychological condition resulted from the trauma of the fall itself and not from the pain that was secondary to her physical injuries.
The Arbitrator’s statements were open on the evidence and properly explained why he accepted Dr Street’s evidence and did not accept Dr Vickery’s evidence.
The submission that Dr Robinson’s notes did not provide the Arbitrator “with significant nexus to find that [the] psychiatric injury was a primary injury” was misguided. The Arbitrator did not rely on Dr Robinson’s notes to support his finding. Dealing with the absence of a reference to a psychological injury in Dr Robinson’s notes, the Arbitrator said that the notes could not “be expected to record everything” (T17.27). He added that Ms Watkins’ evidence, which he accepted, outlined “the history of the symptoms” (T17.28), which was consistent with the history taken by Dr Street and, largely, by Dr Vickery. These observations and findings were open on the evidence.
The Arbitrator dealt with Mr Jobson’s (surprising) submission that alcohol and other outside influences could be the cause of Ms Watkins’ psychological condition and (correctly) stated that there was no evidence to support that submission (T17.37). He also rejected Mr Jobson’s submission that Dr Street’s evidence should be treated with care because Ms Watkins’ daughter had assisted with the history. He rightly pointed out (at T17.42) that Dr Street had a full history, which was consistent with Ms Watkins’ evidence. He did not accept that Dr Street had become an “advocate” (T17.45), as Mr Jobson had submitted.
Turning to the time between the fall and the seeking of psychological treatment, the Arbitrator acknowledged that the time was lengthy, but said that it was not unusual with a psychological injury and the “main thing was to treat the physical pain” (T18.9). He said the main element in Ms Watkins’ favour was “the nature of the symptoms which relate to the incident of injury itself and the fear associated with that” (T18.11). This statement was open on the evidence and further explained the Arbitrator’s acceptance of Dr Street’s evidence.
Neither Dr Street nor Dr Vickery raised any issue about the delay between the fall and Ms Watkins’ presentation for psychiatric treatment. The question was whether she was suffering symptoms, which properly diagnosed, constituted the condition of PTSD and Major Depression (Patrech v State of New South Wales [2009] NSWCA 118 at [77], [91], [105] and [149]) and whether the fall caused that condition. Dr Street dealt with those questions and, in the circumstances of this case, the lack of contemporaneous evidence is of no consequence. It is complete nonsense to suggest, as Mr Jobson did in his submissions in reply, that what was put forward (by Ms Borrie) only supports a finding that the psychological condition is a secondary psychological injury. It clearly does not.
The relevance of Shore was not explained in the submissions. That case concerned whether an undisputed psychological injury had been caused by reasonable action with respect to transfer under s 11A of the 1987 Act. It has nothing whatsoever to do with the issues in the present appeal.
The Arbitrator rejected Mr Jobson’s submission that PTSD and Major Depression are “common secondary results of secondary psychiatric injuries” (T9.28). He said that PTSD and Major Depression were “typical of a primary injury in this instance in light of the evidence overall” (T18.5). That statement was open on the evidence from Dr Street and, though it was brief, Mr Jobson’s submission, which was not supported by any reference to the evidence or reasoned argument, did not call for a more detailed response.
Mr Jobson’s reference to the definition in “sub-section 5 of Section 55.8A” was presumably a reference to the definitions in s 65A(5). I have already explained why the Arbitrator’s finding that Ms Watkins received a primary psychological injury involved no error and this additional “submission” did not advance the appellant’s position.
Mr Jobson did not explain his reference to Dyer and Kooragang. Dyer concerned whether a psychological condition arose out of a work injury to the elbow, or was caused by an assault while the worker was receiving care for her physical injury. I held that the assault broke the chain of causation and the worker was not entitled to compensation for her psychological condition, whether it was a primary psychological injury or a secondary psychological injury. Nothing in Dyer supports any of the arguments presented by Mr Jobson. I have already explained why Kooragang is not relevant to the current claim (see [56] above).
It was only after giving the above reasons that the Arbitrator concluded that the overwhelming weight of the evidence was that the fall itself, not the pain secondary to the physical injuries received in the fall, was the cause of Ms Watkins’ psychological condition and that he preferred the evidence of Dr Street to that of Dr Vickery as to diagnosis and “opinion generally” (T18.17). As the above analysis has demonstrated, the Arbitrator gave comprehensive reasons for accepting Dr Street and rejecting Dr Vickery. His detailed reasons were open on the evidence and disclosed no error. The submission that the Arbitrator failed to give adequate reasons was without foundation and specious.
OTHER MATTERS
The application to rely on fresh evidence has disclosed that, on the face of it, Allianz failed to comply with cl 46(3) of the Workers Compensation Regulation 2010 (the Regulation), which requires that the employer or insurer “must provide a copy of any relevant report to which the clause applies to the worker”, as an attachment to the s 74 notice, except where the report has already been supplied to the worker.
Dr Street’s report of 2 February 2012 was addressed to Allianz and was a “relevant report” and was not attached to the s 74 notice, or served at some other time. The failure to serve the report is a serious matter that Ms Watkins’ solicitors are entitled to raise with WorkCover for investigation. The obligation to provide a copy of a report to a worker applies to any report that is relevant to the claim or any aspect of the claim to which the decision (to dispute the claim) relates, “whether or not the report supports the reasons for the decision” (cl 46(4) of the Regulation).
Dealing with this issue in his submissions in reply, Mr Jobson said that the report was “produced to the insurer as a normal request for particulars”, that it was in the general practitioner’s notes and Ms Watkins’ solicitor could have obtained it before the arbitration. This submission has ignored cl 46(3) of the Regulation, which is in mandatory terms and requires insurers or employers to provide workers with copies of any relevant report/s. Dr Street’s report of 2 February 2012 was such a report. It is not to the point that Dr Robinson held a copy of the report (if that was in fact the case) and Ms Watkins could have obtained a copy prior to the arbitration by issuing to Dr Robinson a direction for production under s 357 of the 1998 Act. The insurer was required to provide a copy to Ms Watkins.
CONCLUSION
The Arbitrator clearly articulated the reasons for his conclusions and the appeal was without merit and should not have been filed.
As to the appeal in general, the submissions prepared in support were unsatisfactory. They did not deal clearly and succinctly with each ground of appeal, or include appropriate page references to the evidence and transcript, as required by the Practice Direction No 6. Indeed, they appear to have been prepared without any proper consideration of the evidence or the Arbitrator’s reasons.
In addition, they:
(a) referred to several authorities that were irrelevant to the issues in dispute;
(b) referred to authorities without making any attempt to explain their relevance;
(c) contained several incorrect or incomplete case citations;
(d) contained incorrect references to the transcript;
(e) ignored the bulk of the Arbitrator’s reasons;
(f) ignored the bulk of the relevant evidence, and
(g) attempted to present on appeal arguments that had not been relied on at the arbitration.
The profession is reminded, yet again, that written submissions must comply with Practice Direction No 6 and must articulate, with appropriate references to the evidence and transcript, how the Arbitrator is alleged to have erred and how that error has affected the result. The appellant’s submissions did not do that and, in some instances, were virtually unintelligible. They clearly had not been checked before they were filed. The filing of such submissions essentially treats the Commission with contempt and is unacceptable.
DECISION
The Arbitrator’s determination of 3 May 2013 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
27 August 2013
I, KATHRYN CAMP, 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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