Secretary, Department of Family and Community Services v Colleen Jones by Executor of her Estate Carol Hewston - [2016] NSWWCCPD 63

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Secretary, Department of Family and Community Services v Colleen Jones by Executor of her Estate Carol Hewston [2016] NSWWCCPD 63
APPELLANT:	Secretary, Department of Family and Community Services
RESPONDENT:	Colleen Jones by Executor of her Estate Carol Hewston
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-2074/16
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	25 August 2016
DATE OF APPEAL DECISION:	23 December 2016
SUBJECT MATTER OF DECISION:	Alleged errors in fact finding; drawing inferences
PRESIDENTIAL MEMBER:	Acting President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Rankin Ellison Lawyers
Respondent:	Slater and Gordon Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination dated 25 August 2016 is confirmed.

INTRODUCTION

This matter involves a claim by Carol Hewston, as Executor of the Estate of the Late Colleen Jones (the respondent) for the lump sum death benefit pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act), on the basis that the death of Colleen Jones (the deceased), on 13 to 14 August 2015, resulted from a conceded employment injury suffered by her on 16 January 2015. There were no persons dependent on the deceased as at the date of her death, and the claim is brought by her estate.

BACKGROUND

The deceased was employed by ‘Ageing, Disability and Home Care’, a service conducted by the Department of Family and Community Services (the appellant). The deceased, in adulthood, had undertaken training at Nowra TAFE to qualify as an assistant in nursing. She was a disability support worker, who assisted people with disabilities, in ‘group homes’. She suffered injury on 16 January 2015, when she took the weight of a client she was helping to bed. She suffered a cystocoele and a uterine prolapse as a consequence. The respondent accepted liability to pay workers compensation in respect of this injury.
Professor Reid, a urogynaecologist, examined the deceased at the request of the respondent’s insurer (the insurer), and reported on 22 June 2015. Professor Reid described the injury as “stage III diffuse cysto-urethrocoele and a stage II uterine prolapse”. He recorded that the injury was associated with diffuse pain in the left shoulder, left back and left hip. The deceased made arrangements to undergo surgery, which was scheduled for 2 September 2015, to rectify the problem. She performed restricted duties with the appellant until 11 August 2015, when she ceased, telling the appellant that she needed to take time off until her surgical procedure was performed.
Rachel Brady-Jones, the deceased’s daughter, with whom the deceased lived at the time of the deceased’s death, said that the deceased was intoxicated on the night of 13 August 2015. She was unable to get the deceased to bed, and left her on the floor of her bedroom, with her head on a pillow and covered with a blanket. The deceased’s daughter said that she did not see the deceased again on that night or on the following morning before she, the daughter, went to work. When Ms Brady-Jones arrived home at about 5.15 pm on 14 August 2015, she found the deceased on the floor where she had been left the previous night. The deceased had died.
The deceased took a number of prescription medications, prior to her death. The autopsy report dated 25 September 2015 referred to toxicology results:
“Toxicology of postmortem femoral blood showed an alcohol concentration of 0.117 g/100mL. Although this level is not in the lethal range, the analysis also revealed the presence of multiple other drugs and medications that cause sedation and may be lethal in combination with alcohol. These include diazepam (a benzodiazepine sedative), codeine and oxycodone (opioid analgesics), and amitriptyline. The latter is a tricyclic antidepressant that is known to have overlapping therapeutic and toxic levels, and is additive with alcohol in its adverse effects. It was found in the deceased at a level of 1.1 mg/L, which is within the lethal range reported in a series of deaths due solely to this agent.”
The pathologist concluded that “the cause of death in this woman was mixed drug toxicity”.
The Coroner’s Report on Dispensing with an Inquest was dated 4 November 2015 (the Coroner’s report). After reciting some short facts, at [2] it said:
“Post mortem results show that Ms Jones had alcohol and a number of other drugs present in her system at the time of death. These included diazepam (Valium), codeine (found in Panadeine Forte), amitriptyline (Endep) and oxycodone. Amitriptyline is known to have toxic effect at certain doses if it is combined with alcohol. The level of amitriptyline found in her system was within the lethal range reported in a series of deaths due solely to that drug, and in this case it was exacerbated by alcohol. It appears that Ms Jones died of mixed drug toxicity. There are no suspicious circumstances.”
A claim by Ms Hewston, the deceased’s sister, as executor of her estate, for the death benefit pursuant to s 25 of the 1987 Act, was disputed by the insurer in a s 74 notice dated 5 May 2016. The insurer said that the death of the deceased “did not result from the injury which she sustained in the course of her employment on 16 January 2015 or any other injury sustained in the course of her employment”. It referred to the deceased’s “complex medical history”, including a history of anxiety and depression dating back 10 years, for which she had been under the care of a psychiatrist, Dr Pulley, from 2014.

THE ARBITRAL PROCEEDINGS

The Application in Respect of Death of Worker was registered on 22 April 2016. It claimed the relevant lump sum death benefit of $750,000, together with funeral expenses of $6,545.44.
The matter was listed for arbitration hearing on 15 August 2016. Mr McManamey of counsel appeared for the respondent, and Mr Flett of counsel appeared for the appellant. There were no applications to adduce oral evidence or to cross-examine. The matter proceeded on the basis of the documentary material, and counsel made submissions. The Arbitrator reserved his decision.

THE ARBITRATOR’S DECISION

The Commission issued a Certificate of Determination dated 25 August 2016. It was accompanied by 16 pages of the Arbitrator’s reasons (the reasons).
The Arbitrator noted that the sole issue between the parties was whether the death of the deceased resulted from the injury on 16 January 2015. He referred to the autopsy report and the Coroner’s report, describing these as “the only evidence as to the cause of death” (reasons at [13]-[15]). He noted “[t]he opinions and findings of the pathologist and of the Coroner were not disputed by the parties” (reasons at [16]). He referred to submissions on the respondent’s behalf, that the deceased’s “level of pain”, and consumption of Panadeine Forte, increased after the injury. He noted the submission that “an increase in the level of medication”, which resulted from the injury, when combined with alcohol, resulted in death. The injury “did not need to be the sole cause of death”, it was sufficient if it “contributed to the outcome” (reasons at [17]-[18]).
The Arbitrator referred to the appellant’s submissions. There were “a number of possible hypotheses as to the reason for the consumption of the medication together with alcohol”, by the deceased. The records from various general practitioners did not show complaints of pain related to the injury, or the prescription of medication linked to it. The deceased took diazepam for reasons unconnected to the injury. The deceased suffered “an adverse response” to attempts to reduce her intake of that drug. This explained an increase in the use of amitriptyline (reasons at [19]-[20]).
The Arbitrator then engaged in a detailed description of the treating medical notes from the three relevant general practitioners, Dr Killalea, Dr Pham and Dr Ibrahim (reasons at [22]-[92]), and the treating psychologist, Elizabeth McIver (reasons at [93]-[108]). The Arbitrator also referred to the report of Professor Reid (the urogynaecologist who reported to the insurer) dated 22 June 2015 (reasons at [80]).
The Arbitrator referred at some length to the undated (and unsigned) statement of Carol Hewston (the deceased’s twin sister and executor). I note that no objection was taken to the statement, or to its weight, on this basis. I will deal with the statement consistent with the approach taken by the parties at the arbitration hearing. I should note that the practice of relying on unexecuted statements is unsatisfactory.
Ms Hewston’s statement dealt with the deceased’s medical history, complaints after the injury on 16 January 2015, and the telephone conversations between the sisters on 11, 12 and 13 August 2015. She said that “in the evening of 13 August 2015” she spoke to the deceased “for a long time”. She said the deceased had said the pain was “escalating on a daily basis and at times she would just lie in bed and cry”. At the end of that conversation, the deceased said “I’m going to bed and lay down, Sis, my back is really killing me” (reasons at [109]-[118]).
The Arbitrator referred to two statements of Ms Brady-Jones dated 9 September 2015 (taken by the police) and 9 August 2016. She said the deceased “would occasionally get depressed but not suicidally”, and “other than the prolapsed bladder her mother’s state of health had been ‘ok’”. She said the deceased consumed alcohol “on a daily basis”, usually “about two beers and a glass of wine”. She described the deceased as “intoxicated” on the night of 13 August 2015. She described her unsuccessful attempt to put the deceased to bed, and then leaving her, covered and with a pillow, on the floor. She said the deceased “had had two beers and two glasses of wine and taken some painkillers on the evening before her death”. The deceased “had been very depressed at that stage” (reasons at [119]-[124]).
The Arbitrator said the respondent relied on a “chain of reasoning commencing with the admitted injury on 16 January 2015”. It was the respondent’s case that it should be “inferred” that the increasing reliance on medication, ultimately consumed at an “inappropriate level”, with alcohol, was due to symptoms arising from the injury. He said that notes, from the various general practitioners, recorded an increase in the rate of prescribing Panadeine Forte in the months preceding the deceased’s death. Professor Reid accepted “complaints of pain arising from the injury”. Dr Coleman (the treating gynaecologist) prescribed Panadeine Forte when the deceased consulted him about the injury (reasons at [126]-[127]).
The Arbitrator said the “more problematic link in the chain” was the role of the injury in the actual consumption of the medication which led to the deceased’s death. He noted the absence of medical reports from the treating psychiatrist, gynaecologist and three general practitioners, dealing with the “causal link”. He said the respondent relied on the clinical records, the statements from Ms Hewston and Ms Brady-Jones, and “a common sense approach” (reasons at [130]).
The Arbitrator referred to the toxicology results, and said he accepted that the concentrations of prescription drugs, other than amitriptyline, were at “non-lethal levels”. He said there was no basis for concluding that the level of codeine in the blood “was above that expected for appropriate dosage of Panadeine Forte”. He accepted that “death was due to [the] significant level of amitriptyline coupled with alcohol” (reasons at [131]-[132]).
The Arbitrator said he accepted that increasing doses of amitriptyline were prescribed over the two years prior to the work injury on 16 January 2015. Drs Ibrahim and Killalea each prescribed Endep in December 2014 (reasons at [135]). The Arbitrator said he did not accept the respondent’s submission that the deceased’s mental state changed from being characterised by anxiety (prior to the injury) to depression (after the injury). The clinical notes referred to a lengthy history of depression prior to the injury (reasons at [136]).
The Arbitrator referred to entries in the clinical material consistent with reduction of the deceased’s prescription for diazepam (Valium) being a factor in her presentation from March 2015 onwards (reasons at [137]-[142]). The Arbitrator noted the deceased consulted Ms McIver on 13 August 2015. He said that the psychologist’s notes made it clear that the deceased’s “principal preoccupation” that day was her “impending operation”. The deceased was “nervous” about it, and “afraid of the pain”. The psychologist noted that the deceased, at that consultation, was “in pain following a heavy day at work”, leading to her decision to cease work (reasons at [144]-[145]).
The Arbitrator accepted that a “common sense approach is appropriate based on the evidence”, referring to Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang) (reasons at [150]). The Arbitrator referred to the medical evidence from Professor Reid, Dr Coleman and Ms McIver, and the statements from Ms Hewston and Ms Brady-Jones. He said this provided:
“… a reasonable basis to accept that [the deceased] suffered an increased level of pain after the subject injury whatever other physical problems she may have been experiencing with her left foot and back.” (reasons at [152])
The Arbitrator said that the notes of Ms McIver demonstrated that the deceased’s mental state was, as at 13 August 2015, “affected adversely by the consequences of the subject injury”. He accepted that the injury caused pain and distress to a person who was “already in a vulnerable mental state as evidenced by her ongoing reliance on Endep and diazepam in various forms prior to the subject injury”. He said he could not say whether nervousness and anxiety about the operation led the deceased to increase her consumption of alcohol. However, the “level of amitriptyline found was within the lethal range in any event” (reasons at [153]-[155]).
The Arbitrator at [157]-[158] concluded:
“157. Weighing the evidence I accept the notes of the psychologist, Ms McIver, made in respect of the attendance on 13 August 2015, as establishing that Ms Jones’ mood was affected by the consequences of the subject injury and as weighing the balance in favour of the view that Ms Jones increased her consumption of medication (and in particular amitriptyline) to help her to cope.

158. I am therefore satisfied on the balance of probabilities that, in the period following her ceasing work after 11 August 2015, it is likely Ms Jones increased her consumption of medication and in particular amitriptyline in an attempt to improve her low mood but unintentionally leading to a [sic] her death.”

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ISSUES IN DISPUTE

The pleaded grounds, in the Amended Application Appeal Against Decision of Arbitrator lodged on 4 October 2016, state there is a single ground of appeal. This is that the Arbitrator erred in making his finding of ultimate fact, being that the death of the deceased resulted from the injury on 16 January 2015. The document then sets out four more specific grounds, which (consistent with the description in the appellant’s submissions) I will refer to as grounds (i) to (iv). These are:
(a)     Ground No (i) – the Arbitrator erred in fact in finding that the clinical notes from the psychologist demonstrated that the deceased’s mental state was adversely affected by the consequences of the injury.
(b)     Ground No (ii) – the Arbitrator erred in fact in finding that the deceased increased her consumption of amitriptyline.
(c)     Ground No (iii) – the Arbitrator erred in fact in finding that the deceased increased her consumption of amitriptyline to help her cope.
(d)     Ground No (iv) – the Arbitrator erred in finding a causal link between the increase of amitriptyline and the work injury.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The Application to Appeal contains a detailed chronology, which is not challenged by the respondent. It contains some introductory submissions, in which the appellant says, in part:
“1.4. It is submitted that the Arbitrator erred in his assessment of whether the Worker’s death was as a result of the Work Injury.
1.5. Specifically, it is submitted that the Arbitrator erred in finding an increase in the use of amitriptyline that was as a result of the Work Injury.
1.6. It is submitted, therefore, that the Arbitrator should have found that the Applicant [sic] failed to discharge her evidentiary burden in proving a sufficient causal link between the Worker’s death and her Work Injury.”
The introductory submissions continue, referring to s 25 of the 1987 Act and the law of causation. The appellant relies on Pickersgill v Freightbases Pty Ltd [1983] 3 NSWLR 117 (Pickersgill), as authority for the following proposition:
“2.3. It is not sufficient to prove that ‘death results from an injury’ to establish that work-related conditions had in some way predisposed the worker to a fatal incident.”
The appellant then refers to the test on causation in Kooragang, submitting:
“2.4. If an injury sets in motion a series of events that are unbroken and provide the relevant causative explanation of the death, then it may be said that the incapacity or death resulted from the injury.
2.5. In Kooragang, it was held that whether death resulted from a relevant work injury is a question of fact to be determined by a commonsense evaluation of the causal chain, with regards to the formula ‘results from’.”
The appellant notes that the only medical evidence comprised the “clinical records and the reports of the Coroner and a pathologist. There were no ‘medicolegal’ type opinions tendered”. The appellant also states that amitriptyline is an anti-depressant sold under the brand name Endep.
The primary issue is one of causation. It is convenient at the outset to deal with the nature of the test of causation, in light of the parties’ submissions and the approach taken by the Arbitrator. The appellant refers to Pickersgill, an authority dealing with the meaning of “results from” in the Workers Compensation Act 1926. It was an authority which placed emphasis on the ‘proximate cause’ of death or incapacity. Moffitt P at 118G said of the phrase:
“The words ‘results from’ are not appropriate to be applied to an injury which gives rise to a bodily condition which merely predisposes the worker or makes him more vulnerable to later injury. The phrase imports some elements of proximity in the causative links between injury and incapacity. It imports some element of precipitation. In the factual field the necessary proximity can or can normally be expected to be temporal.”

The judgment of Priestley JA (Samuels JA agreeing) was to similar effect.
In Kooragang, Kirby P (Sheller and Powell JJA agreeing) at 463F said:
“Certainly, the notion that ‘results from’ imports an idea of causation limited to the immediate proximate cause of incapacity or death, has been disapproved. In Australian Electrical Industries v Marlborough [Court of Appeal, 16 June 1989, unreported], my opinion to this effect was agreed in by Meagher JA.”
And at 463G:
“The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted.”
In Kooragang Kirby P, after reviewing a number of authorities on causation, at 462E said:
“Since that time, [the decision in Ystradowen Colliery Co Ltd v Griffiths [1909] 2 KB 533], it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
The appellant’s reference at [2.5] of its submissions, to the test in Kooragang, apparently refers to the following frequently applied passage from the judgment of Kirby P at 463G-464B:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
The test in Kooragang was affirmed by Clarke JA (Priestley JA and Hunter AJA agreeing) in Sutherland Shire Council v Baltica (1996) 39 NSWLR 87 (Baltica) at 97E-G, where his Honour said it had “summed-up the present law”. The test in Pickersgill cannot, as a general proposition, be regarded as good law. The limited proposition put forward at 2.3 of the appellant’s submissions is, in any event, supported by the passage from Kooragang quoted immediately above.
The respondent’s counsel, at the arbitration hearing, submitted on the law of causation, saying:
“It’s a common sense test, we don’t look for approximate [sic proximate] cause, we don’t look for sole causes. It is sufficient so long as the prolapse and its consequences is one of the factors that contributes to the death on 14 August 2015 and it doesn’t even have to be a big factor so long as it is material.” (T9.30-10.1)
This submission is consistent with the passage from Kooragang quoted above, and also with the decision of the High Court in Accident Compensation Commission v CE Heath Underwriting and Insurance (Aust) Pty Ltd [1994] HCA 68; 121 ALR 417; 68 ALJR 525 (Accident Compensation Commission). Brennan J (Mason CJ, Deane, Dawson and Toohey JJ agreeing) at [5] said:
“Similarly, liability under the Act to make weekly payments during incapacity or to pay a lump sum in redemption of that liability arises from each of the injuries which caused or materially contributed to the incapacity. Any employment in the course of which the worker sustained an injury causing or materially contributing to his incapacity attracts liability to the employer and to the insurer on risk at the time of the injury…”
In Baltica Clarke JA, after referring to the above passage from Accident Compensation Commission, and quoting the above passage from Kooragang, at 97G- 98A said:
“I would agree with those observations but would add that in the light of the judgment in Accident Compensation Commission v CE Heath, I do not think there is any impediment to my acceptance of the view that the common law test applies and that the relevant enquiry directs attention to whether the injury caused or materially contributed to the incapacity. Accordingly, the approach evident in [Morris v George], which reflected the restrictions imposed by the search for a proximate or direct cause, should, in my view, no longer be regarded as sound.”
The above is generally consistent with the review of the authorities and analysis, by Roche DP, in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) at [57]-[58]. Murphy was a matter where there was a causation issue going to the need for medical treatment. Roche DP at [57] said:
“The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.”
And at [58]:
“That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in [Baltica].)”
The parties and the Arbitrator approached the matter on the basis that a commonsense test, consistent with that propounded in Kooragang and Baltica, should be applied. Other than the reference, in passing, to Pickersgill, neither party has submitted that a test other than that in Kooragang should be applied.

GROUND NO (i) – THE DECEASED’S MENTAL STATE

This ground is set out at [29] above.

The Appellant’s Submissions

The appellant refers to the Arbitrator’s reasons at [155]-[158]. The appellant quotes the relevant entry in the records of Ms McIver for 13 August 2015. The appellant submits that there was no evidence to support the Arbitrator’s findings that:
(a)     the deceased being “nervous and worried about the pain that may ensue from the operation… caused her to be more depressed or anxious than she had been in the past”;
(b)     the deceased being nervous and anxious “about the forthcoming operation led to an increase in [her] consumption of amitriptyline”, and
(c)     “the [d]eceased increased her consumption of amitriptyline in an attempt to improve her low mood.”
The appellant submits that nervousness and fear of pain “is entirely normal of [sic] someone about to undergo surgery”. There was no evidence of the deceased’s mood being affected. The appellant refers to the description in Ms Hewston’s statement of her telephone conversations with the deceased on 12 and 13 August 2015. She said the deceased “sounded a lot happier” on 12 August 2015. She said on 13 August 2015 the deceased was “excited about picking up a new car” and her GP had made her “feel more positive” about the operation.

The Respondent’s Submissions

The respondent states there was evidence that the deceased “was experiencing pain because of her work injury”. The respondent refers to the lay evidence. Ms Brady-Jones said that when she returned from overseas the deceased was depressed and complained of “a lot of pain”. She said that as a result the deceased “drank a large amount of alcohol and used painkillers and antidepressants”. The deceased said that drinking beer and wine “made some of the pain go away”. Ms Brady-Jones said the deceased “complained of pain almost all of the time”. Ms Hewston referred to her telephone conversations with the deceased. She said that on 11 August 2015 the deceased said her pain was “unbearable”, and she was taking codeine up to three times a day so that she could function. On 12 August 2015 the deceased said she was still in a lot of pain. On 13 August 2015 the deceased spoke of her apprehension about the surgery. There were times when she would just lie in bed and cry. She concluded that conversation saying “my back is really killing me”.
The respondent refers to Ms McIver’s notes for 13 August 2015. They are consistent with the deceased being concerned about her pain, both at that point in time, and the possible pain of the surgery. The lay evidence confirms that “the deceased’s mood was affected by the consequences of the work injury”. Ms McIver’s notes verify this.
The Arbitrator concluded that this alteration in mood led to an increase in the deceased’s consumption of medication. This is supported by the lay evidence, particularly Ms Brady-Jones. The notes of Ms McIver are confirmatory of the lay evidence, “that the deceased’s mood was affected by the consequences of the work injury”. The Arbitrator then drew a logical inference, which was available to him, “that the pain and depression contributed to the overdose of drugs and alcohol taken on 13 and 14 August 2015”. The appellant “offers no other explanation for why there was an overdose that night”. The respondent submits:
“The evidence supports the conclusion that the subject injury and its consequences were contributing to the deceased’s depression and anxiety and those concerns would have contributed to the ingestion of too much Endep on the night of her death.”

Appellant’s Submissions in Reply

The appellant lodged submissions in reply on 14 December 2016. It submitted that:
(a)     “… there was no persuasive evidence put forward by the Applicant that the Deceased’s depression increased due to the Work Injury and that any increased use of amitriptyline was due to the Work Injury”;
(b)      “… the mere linking of pain and depression without actual medical evidence on the issue ought not be considered sufficient to discharge the onus on the Applicant”, and
(c)     the deceased’s “long history of depression and increased dosage prescriptions for Endep… provides one plausible alternate explanation” for the “increased use of amitriptyline”.

Discussion

The relevant passage of the Arbitrator’s reasons reads:
“154. I accept that the subject injury caused pain and distress to Ms Jones. Ms Jones was clearly already in a vulnerable mental state as evidenced by her ongoing reliance on Endep and diazepam in various forms prior to the subject injury.

155. It is not possible to say from the evidence whether or not the pain experienced by Ms Jones and her nervousness and anxiety about the forthcoming operation led to an increase in her consumption of alcohol but the pathologist report makes it clear that the level of amitriptyline found was within the lethal range in any event.

156. I accept that Ms Jones was nervous about the operation and afraid of the pain that may be entailed. I accept that Ms Jones was experiencing a level of pain that forced her to cease work although it is clear from the psychologist noted [sic] that she normally enjoyed her work.

157. Weighing the evidence I accept the notes of the psychologist, Ms McIver, made in respect of the attendance on 13 August 2015, as establishing that Ms Jones’ mood was affected by the consequences of the subject injury and as weighing the balance in favour of the view that Ms Jones increased her consumption of medication (and in particular amitriptyline) to help her to cope.

158. I am therefore satisfied on the balance of probabilities that, in the period following her ceasing work after 11 August 2015, it is likely Ms Jones increased her consumption of medication and in particular amitriptyline in an attempt to improve her low mood but unintentionally leading to a [sic] her death.” (emphasis added)
The appellant’s submissions on this ground were directed specifically to Ms McIver’s entry for 13 August 2015. The appellant submits that the relevant entry recorded nervousness and worry about the surgery, referred to by the Arbitrator. The evidence did not say that this caused the deceased to be more depressed and anxious than she had been in the past. The Arbitrator did not find nervousness and worry about the operation caused the “increase in the use of Endep to the lethal levels recorded”.
The appellant says that the Arbitrator found that “the Deceased’s mood was affected by the consequences of the Work Injury and the Deceased increased her consumption of medication and in particular amitriptyline to help her cope”. It submits “[i]n light of the evidence this was an error of fact”. The appellant submits that there is not any evidence that the deceased increased her consumption of amitriptyline to improve her low mood. The appellant submits the records of Ms McIver do not show the deceased’s mood was affected by the work injury, only complaints of nervousness and fear of potential pain associated with the operation. Such fears are “entirely normal”. “There was no mention of pain, at that point in time, causing serious psychological concern”.
In assessing the weight to be attached to the various clinical notes, including those of Ms McIver, regard should be had to the line of authority which includes Mason v Demasi [2009] NSWCA 227. In Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, but not on this point) Roche DP at [183] said:
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).”
The appellant’s submissions on this ground concern themselves essentially with what is proved by the entry on 13 August 2015. This is probably in response to how the finding of fact at [157] of the Arbitrator’s reasons is expressed. The respondent’s submissions on this ground refer extensively to the lay evidence from Ms Hewston and Ms Brady-Jones, including reference to the days leading up to 13 August 2015.
A statement of reasons must be looked at as a whole: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 per Meagher JA at 444. Whilst the finding at [157] of the reasons refers to Ms McIver’s note on 13 August 2015, it is necessary that that finding be read in the light of the evidence overall. The finding at [157] specifically refers to “[w]eighing the evidence” and “weighing the balance” (I infer of the evidence). The Arbitrator’s finding was not based simply on Ms McIver’s clinical note for 13 August 2015.
The Arbitrator at [130] of his reasons specifically stated “The applicant relies on the clinical records, the evidence of Mrs Hewston and Rachel [Brady-Jones] and a common sense approach.” The Arbitrator approached the issue before him on the basis that there was no direct evidence to make the causal link between the accepted employment injury, and consumption of the fatal dose of amitriptyline. He specifically noted, in his reasons at [126], that the respondent submitted it “should be inferred” that the deceased’s increasing reliance on medication was “due to symptoms arising from the injury”.
It follows that, in considering whether there was evidence which would support the factual findings made by the Arbitrator, it is necessary to refer to the evidence as a whole, of which Ms McIver’s clinical notes are one part.

The State of the Evidence

The deceased had various health difficulties, prior to the employment injury. The respondent has not challenged the chronology attached to the Application to Appeal, which sets out events dating from 23 January 2014. From that date to 16 January 2015 the deceased was receiving scripts for various painkillers, antidepressants and anti-anxiety drugs. The deceased over that period was under the care of three general practitioners, Dr Ibrahim, Dr Phan and Dr Killalea. She was under the care of Ms McIver, a psychologist and Dr Pulley, a psychiatrist.
Dr Pulley, on 7 November 2014, recorded a history of “depression and anxiety beginning about 10 years ago”, and “major problems with anxiety in the past 10 years”. He diagnosed a “major depressive disorder – partial remission”. Professor Reid, in his report dated 22 June 2015, recorded a history of a “gastric band operation two years ago”, replaced with a “gastric sleeve 14 months ago”, which led to 21 kilograms weight loss. He also recorded the deceased had a “Hepatitis C carrier state, moderate osteoarthritis (right greater than left) and left foot pain secondary to a fracture three years ago”.
The deceased apparently carried out her duties with the appellant satisfactorily, prior to the employment injury, notwithstanding these health difficulties. Ms Azzopardi, co-ordinator accommodation and respite with the appellant, said that she was “a really nice lady, who tried her best at work” and was “well regarded by her Team Leader”.
Professor Reid recorded that the deceased had been working in the Wallace Street Group Home with five elderly ladies, and “reports being very happy at work and was physically capable of doing the necessary jobs until the sudden occurrence of a prolapse”. Professor Reid took a history of the incident on 16 January 2015, in which the deceased arrested a client’s fall when a bedframe suddenly collapsed. “In the succeeding hours she developed diffuse pain in her left shoulder, left back and left hip.” On the following morning when showering she was conscious of a vaginal bulge.
Professor Reid’s description of the deceased’s symptoms included:
“Miss Jones is aware of an anterior vaginal bulge, which is very bothersome. The bulge is present even on awakening, and descends even further with standing. This prolapse creates a feeling of diffuse bulge discomfort. She is also feeling a significant degree of emotional distress at the alteration in her genital anatomy.
Miss Jones also has a pelvic heaviness and lower back discomfort, which worsens during the course of the day. This symptom is attributable to her prolapse, rather than to any orthopaedic back problems.”
Professor Reid recorded difficulties with urination. He described the deceased’s symptoms as “completely consistent with the reported injury”. He noted the deceased had been able to continue working the same hours as previously. He said:
“I believe that surgery is strongly indicated, both to resolve her constant physical discomfort as well as to restore her work capacity to a pre-injury level.”
It appears that the deceased consulted Dr Sahar Ibrahim (a woman) about the uterine prolapse and cystocoele, initially on 9 February 2015. The records of Dr Pham and Dr Killalea do not indicate that they treated the deceased for this problem. Dr Ibrahim referred the deceased to Dr Johnson, a gynaecologist. He reported on 11 March 2015, saying that the deceased did not want surgical treatment for the prolapse. The deceased was referred to another gynaecologist, Dr Coleman. He reported on 30 April 2015, saying that the prolapse “seemed to worsen” over the last three months. He offered a repair procedure, with the possibility of a hysterectomy, “depending on the findings under anaesthesia”. This was the surgical procedure the deceased was waiting on at the time of her death.
The deceased regularly mentioned the prolapse to Ms McIver, initially on 13 February 2015. On 16 April 2015 Ms McIver recorded that the deceased was feeling “v. sad”. The deceased said that she was going to get compensation at work, a doctor had said “it didn’t happen at work – Dr said wear and tear”. The deceased said the “accident happened in residence”, she filled in an “accident report next morning”, and she needed eight weeks off for the surgery. She was encouraged to move ahead with the operation. The entry for 12 May 2015 said that the deceased was looking forward to a holiday swimming with whale sharks. It said the deceased had had a “[b]ad couple of days cried to sister”. The history was of family difficulties. It also said “Loves her work – works a lot, 2 jobs, loves her clients (disabled).” On 26 May 2015 Ms McIver recorded the deceased saying “It’ll be good to fly away – Monday”. There was a history of family difficulties. The notes recorded the deceased was “going to try to get 6 weeks paid leave after operation, will see Union solicitor about compensation. She is currently on restricted duties, no lifting no mopping and so on”.

Ms McIver’s entry on 14 July 2015 recorded that Dr Phan had cut down the deceased’s Valium from “5, now 2 mgs, not enough”. The entry said the deceased needed to talk to Dr Pulley about Valium. It included:
“They have accepted the need for operation & she is waiting for a date.
         Very sad about everything – crying and shaking –
         DASS – Depression 14 – 87% moderate
  Stress 11 – upper normal 60%
  Anxiety 15 – severe 95%”
On 3 August Ms McIver recorded that Dr Pulley had put the deceased back on “5 mgs” of Valium. It also said:
“[The deceased] is considering having time off on comp if she is too uncomfortable before op – a long time to wait – she was expecting August not October.”
The entry from the records of Ms McIver for 13 August 2015 reads:
“On compo now till end of October –good. Nervous about operation, afraid of the pain. Doesn’t know if it will be keyhole – has had 2 keyhole ops & the pain from the trapped air lasts for months.
C. dwells on getting old – afraid of infirmity, not death.
Although at work they knew she shouldn’t lift, etc, she had to collect 5 women & get them bathed, fed & into bed, & floor mopped. She was in a lot of pain the next morning so decided to go on compo.
C. plans to take 8 weeks off after op & go back on light duties.
3 week [sic] to operation.
2/52”
The respondent’s submissions referred to Ms Hewston’s statement. She said the deceased told her that when showering she found a “large soft lump ‘about the size of a tennis ball’ protruding from her vaginal area”. The deceased said she was “‘scared’ of what this could be”. The deceased subsequently told Ms Hewston that she was in “increasing and escalating pain”. The deceased told Ms Hewston that “she had to manipulate her bladder continuously through out [sic] the day”. Her “bladder would drop between her legs with very little effort and this caused her to be uncomfortable and distressed”. This was at a time when the deceased was continuing to work with the appellant, on modified duties.
Ms Hewston described telephone conversations with the deceased on the last few days of her life. She said that on the morning of 11 August 2015 the deceased was “distressed and crying”, after completing her shift. She told Ms Hewston “I just cannot do this anymore; I am in unbearable pain and taking Codeine up [to] 3 times a day just so I can function.” She said that she would inform the office that “she was unable to perform her duties and needed to take the rest of the time off before her scheduled procedure.” Ms Hewston spoke to the deceased again on the night of 11 August 2015. The deceased was “a lot happier” as she had spoken to the office, who had supported her request and she “finished up on that day”.
Ms Hewston said she spoke to the deceased again by telephone on 12 August 2015, when the deceased:
“… sounded a lot happier, and, while she was still in a lot of pain, she was rested and looking forward to the medical procedure so she would be able to get back to ‘normal’.”
Ms Hewston described speaking to the deceased for “a lengthy time” on the evening of 13 August 2015. She said that the deceased was excited to be picking up a new car, was happy, and the two of them were planning a trip to Spain and Greece. The deceased was planning to spend the latter part of her recuperation from the surgery with Ms Hewston, in Townsville. The deceased had had confirmation the surgery was to go ahead on the set date. She was a bit apprehensive that the procedure would cause her more pain, but had been told that pain treatment would be available, which “made her feel more positive”. However the deceased also said that at that time “her pain was escalating on a daily basis and there were times a [sic] she would just lay in bed and cry”. She said that she asked the deceased if her daughter was helping her, and the deceased said that her daughter “couldn’t careless [sic, care less]”. The deceased said that she had seen a psychologist that day “and she was working through her issues regarding her daughter”. Ms Hewston said the deceased’s last words to her were:
“I am going to bed and lay down, Sis, my back is really killing me. Bye. I’ll speak to you tomorrow. I love you.”
The respondent’s submissions refer also to the statements of Ms Brady-Jones. Her statement dated 9 September 2015 said she arrived home on 13 August 2015 at about 5.15 pm to find the deceased drinking a glass of wine. Ms Brady-Jones went for a walk from 7.15 pm to 8.30 pm. On her return she found the deceased “intoxicated”. She did not know what the deceased had been drinking other than wine, or how much. She said that “[a]bout 9 pm my mother was extremely intoxicated with her not being able to comprehend anything”. It was at that point that she tried unsuccessfully to get the deceased to bed, eventually leaving her covered on the bedroom floor.
Ms Brady-Jones’s statement dated 9 August 2016 said that she returned from eight weeks’ holiday in Europe, about three weeks before the deceased’s death. Ms Brady-Jones lived with the deceased from then until the death of the deceased. She found the deceased “very depressed”, “under a lot of stress”, “very down”, “very quiet”. She said the deceased “complained of being in a lot of pain, and as a result drank a large amount of alcohol and used painkillers and antidepressants”. Ms Brady-Jones said that she and the deceased fought about the deceased’s consumption of alcohol and medication. The deceased often complained of pain, and said she felt like her bladder was “going to fall out”. Ms Brady-Jones said that the deceased “complained of pain almost all of the time”, and the deceased said “medication was the only thing that helps”. She said that the deceased was “very depressed at that stage, almost childlike in her behaviour”, “often quite [sic, quiet] and moody, and I remember her memory was really bad”.
Senior Constable Mullins, in his statement dated 2 October 2015, described carrying out various investigations. At [25] of the statement he said:
“After speaking with everyone in attendance and some of the deceased[’s] doctors, in my opinion the cause of the deceased[’s] death is unknown. It appears that the deceased was suffering a lot of pain due to the prolapsed bladder. She also appeared to be using a large amount of pain relief medication along with using anti depressant medication. She also appeared to be a regular drinker of alcohol, at times drinking herself extremely intoxicated.”
The appellant, in the running of the arbitration, did not challenge the reliability of the evidence of Ms Hewston. There was some challenge to the contents of the statements of Ms Brady-Jones. In her statement dated 9 September 2015 at [7] Ms Brady-Jones said:
“I was not sure what she [the deceased] had been drinking other then [sic, than] wine and not sure how much she had drunk.”
In the statement dated 9 August 2016 at [2(j)] Ms Brady-Jones said:
“I was there when my mother sadly passed away. I remember she had about two beers, two glasses of wine and took some painkillers.”
The appellant’s counsel submitted “That just can’t be right.” (T46.17) The appellant’s counsel also referred to Ms Brady-Jones’s statement dated 9 August 2016 at [2(d)]:
“I remember that she complained of being in a lot of pain, and as a result drank a large amount of alcohol and used painkillers and antidepressants.”
The appellant’s counsel referred to this evidence, submitting “… one doesn’t know what the pain was.” He suggested it may have been “foot pain” (T47.6-12). He submitted:
“… there’s inherent conflict between the two statements and there’s no attempt to sort out what that conflict is.”
The Arbitrator referred to the evidence of Ms Brady-Jones at [119]-[124] of his reasons. He described it without any form of criticism, he did not suggest that he had reservations about accepting it. At [152] of his reasons the Arbitrator referred to complaints of pain, made to Ms McIver, Ms Hewston and Ms Brady-Jones, as providing “a reasonable basis to accept that Ms Jones suffered an increased level of pain after the subject injury”. This apparent acceptance of the evidence of Ms Brady-Jones is not the subject of challenge on this appeal.

The Availability of the Inference Drawn

In Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 (Fernandez) Glass JA at 197C said:
“The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: E.M.I. (Australia) Ltd v Bes (1970) 2 NSWR 238, (1970) 44 ALJR 360. The evidence will be sufficient if, but only if, the materials offered justifies an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence.”
In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (Bradshaw) the High Court at 5 said:
“In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.”
The above passage from Bradshaw was described as “the test to be applied” in Luxton v Vines [1952] HCA 19; 85 CLR 352 per Dixon, Fullagar and Kitto JJ at [8].
In Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [90]-[91] Spigelman CJ said:
“90. Proof on the balance of probabilities, indeed on the beyond reasonable doubt standard, may be established on the basis of circumstantial evidence. As Lord Cairns said in Belhaven and Stenton Peerage [1875] 1 AC 278 at 279:
‘My Lords in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.’
91. Causation, like any other fact can be established by a process of inference which combines primary facts like ‘strands in a cable’ rather than ‘links in a chain’, to use Wigmore's simile. (Wigmore on Evidence (3rd ed) para 2497, referred to in Shepherd v R[1990] HCA 56; (1990) 170 CLR 573 at 579).”
The High Court, in Fuller-Lyons v New South Wales [2015] HCA 31 at [46], referred to the need for an inference of fact to involve “a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts”.
Acceptable evidence establishes the following:
(a)     The deceased had a history, going back about ten years before the employment injury, of depression and anxiety. This was treated with a number of medications (including amitriptyline). Prior to the employment injury, the deceased was under the care of three general practitioners, a psychiatrist and a psychologist. The Arbitrator described the deceased as “already in a vulnerable mental state” prior to the employment injury (reasons at [154]). This description was justified on the evidence.
(b)     The deceased carried out her work duties satisfactorily before the employment injury (Ms Azzopardi), she loved her work (Ms McIver’s notes, Professor Reid’s report).
(c)     Following the uterine prolapse, the deceased was conscious of a vaginal bulge which was “very bothersome”, and she felt a significant degree of emotional distress at the alteration in her genital anatomy. There were difficulties with urination. She suffered from pelvic heaviness and lower back discomfort as a result of the prolapse (Professor Reid’s report).
(d)     As at the date of her death, the deceased was awaiting surgery by Dr Coleman, involving repair of the prolapse, with the possibility of a hysterectomy. This was arranged for 2 September 2015 (Dr Coleman’s report dated 30 April 2015, statement of Ms Hewston).
(e) The clinical notes of Ms McIver are referred to at [69]-[72] above. The recorded history referred from time to time to family difficulties, and adjustments to the deceased’s Valium dosage. There were also regular references to the deceased’s prolapse, its effects on her work, and the associated surgery. The note on 3 August 2015 said that the deceased was “considering having time off on comp if she is too uncomfortable before op”. The note on 13 August 2015 described a busy time at work looking after five women, following which the deceased was “in a lot of pain the next morning so decided to go on compo”. It also said “3 week [sic] to operation”, and described the deceased as “nervous about operation, afraid of the pain”.
(f) Ms Brady-Jones’s statements are described at [77]-[78] above. In her statement dated 9 August 2016, she described the deceased’s mood in the last three weeks of her life, with terms such as “depressed”, “very down”, “very quiet”, “moody”. There were references to the deceased complaining of “a lot of pain”, complaining of pain “almost all of the time”, and saying that drinking and medication helped with the pain. The deceased “complained of being in a lot of pain, and as a result drank a large amount of alcohol and used pain killers and antidepressants”. The references to pain in this statement frequently lack specificity. It is tolerably clear from the passage at [2(h)] that these complaints related, at least in part, to the uterine prolapse:
“She often complained of pain, particularly when she sat down. She often said she felt like:
‘my bladder is going to fall out.’”
(g) Ms Hewston’s statements are described at [73]-[76] above. On 11 August 2015 the deceased said she was “in unbearable pain and taking codeine up [to] 3 times a day just so I can function”; she was “distressed and crying” on the telephone. Whilst the deceased was happier on 12 August 2015, after ceasing work, she was described as “still in a lot of pain”. On 13 August 2015 the deceased was happier about some things (a new car and planning a holiday), she was apprehensive about the upcoming surgery, she said her pain was “escalating on a daily basis”, and there were times “she would just lay in bed and cry”. The deceased told Ms Hewston that she was going to bed as her back was “really killing” her. It should be noted that Professor Reid, in his report dated 22 June 2015, said that the lower back discomfort was “attributable to [the deceased’s] prolapse, rather than to any orthopaedic back problems”.
The Arbitrator specifically found that the deceased’s “mental state” or “mood” was “affected by the consequences of the subject injury” (reasons at [153] and [157]). This was consistent with the lay evidence. That of Ms Hewston contained clear evidence of complaint of physical symptoms, in association with emotional distress and crying. That of Ms Brady-Jones referred to the deceased’s complaints of pain, her demeanour, her use of alcohol, pain killers and antidepressants. It was consistent with the history recorded by Professor Reid, that the deceased felt “a significant degree of emotional distress at the alteration in her genital anatomy”. An inference that the deceased’s mental state was adversely affected by the consequences of the subject injury was available, consistent with the authorities referred to above. The evidence, both lay and medical, gives rise to a reasonable and definite inference to that effect.
Ground No (i) fails.

GROUND NO (ii) – INCREASE IN THE CONSUMPTION OF AMITRIPTYLINE

GROUND NO (iii) – INCREASE IN AMITRIPTYLINE CONSUMPTION TO HELP THE DECEASED COPE

GROUND NO (iv) – ERROR IN FINDING A CAUSAL LINK

These grounds are related, and it is appropriate to deal with them together. They are set out at [29] above.

The Appellant’s Submissions

The Arbitrator found that the deceased died “due to significant level of amitriptyline coupled with alcohol” (reasons at [132]). The appellant submits the deceased had a long-standing history of depression and anxiety, and was “reliant on increasing doses of amitriptyline prior to the work injury” (reasons at [146]). There was an increase in the prescription of this drug over the two years prior to the employment injury (reasons at [133]).
The appellant submits that there was no evidence of the deceased being prescribed, or consuming, increased dosages of amitriptyline after the employment injury. There was no evidence that the deceased took increasing doses of Endep for pain, or to help her cope. The reasons for any increase in the consumption of Panadeine Forte were unclear, but in any event Panadeine Forte did not contribute to the death of the deceased. The finding that the deceased increased her consumption of amitriptyline after the employment injury was an error of fact.
The submission going to Ground No (iii) simply states that as there was no increase in the consumption of amitriptyline after the employment injury, there was no increase to help her cope.
The appellant’s primary submissions on Ground No (iv) are set out at [7.7]-[7.8] of its submissions:
“7.7 By finding that the Work Injury led to an increased consumption of amitriptyline the Arbitrator has made an error of fact.
7.8 By therefore finding that the Work Injury resulted in the death of the Applicant [sic], the Arbitrator also erred at law.”
The appellant additionally submits that, in the running of the case, the respondent’s counsel addressed on “increased use of Panadeine Forte”, and “there was no evidence of increased use of amitriptyline to treat pain”. It submits that there was no “evidence that proves nervousness and anxiety about the forthcoming operation led to an increase in the Deceased’s consumption of amitriptyline”.

The Respondent’s Submissions

The respondent submits:
“The fact that the deceased increased her dose of amitriptyline is unchallengeable. The fact is that prior to 13 August 2015 she had never ingested sufficient amitriptyline to be fatal. On 13 August 2015 she ingested a fatal dose. She must have increased her dosage on that day at least.”
The respondent refers to the Arbitrator’s finding that the deceased “increased her consumption of medication and in particular amitriptyline” following her cessation of work on 11 August 2015. The respondent submits that it was open to the Arbitrator to conclude “the increase that led to the death occurred during those 2 days”. “The deceased merely needed to take a larger dose from the supply she had on hand.”
On Ground No (iv) the respondent refers to the evidence of Ms Hewston and Ms Bradley-Jones, dealing with pain, and an increase in the consumption of medication, including antidepressants. Pain was raised with Ms McIver on 13 August 2015. It is “an easy inference to conclude that continuing pain and concern about upcoming surgery would aggravate depression in a person like the deceased”. It is “an easy connection to make”.

Discussion

I should refer in passing to the appellant’s submission that, in the running of the matter before the Arbitrator, the respondent’s counsel referred to levels of Panadeine Forte consumption, but not amitriptyline consumption. The submission said that transcript references would be provided “once official transcript is received”. No further submissions dealing with this topic were lodged, and it was not a subject touched on in the appellant’s submissions in reply. I note that the respondent’s counsel’s submissions touched on the prescription of Panadeine Forte and Endep after the employment injury (T17.4-12 & 56.21-57.6), and in a general sense on the “lethal cocktail” of medication (T22.7-15). Given the lack of further references by the appellant to this issue, the submission appears not to have been actively pursued.

The Arbitrator said (reasons at [129]):
“The more problematic link in the chain is the role of the injury in relation to the consumption of medication that led to Ms Jones’s death.”
The deceased was prescribed amitriptyline (Endep) by the practices of both Dr Ibrahim and Dr Killalea, before and after the employment injury. She also was prescribed other antidepressants by the practice of Dr Pham, before and after the employment injury. The respondent’s submission is correct, that an increase in the consumption of amitriptyline would “… not need to be reflected in any increase in prescription. The deceased merely needed to take a larger dose from the supply she had on hand.”
Ms Hewston’s statement referred to the deceased saying that her “GP” prescribed “pain killing medication”, and that while working she was “taking codeine up [to] 3 times a day just so I can function” (this would be consistent with the consumption of Panadeine Forte). Ms Hewston did not refer to the consumption of other medication, including amitriptyline.
Ms Brady-Jones’s statement dated 9 September 2015 said that she had resided with the deceased “for about 18 years”. She referred to the deceased being diagnosed with depression “about 14 years [ago]”, and being “prescribed various medications, with her mostly using Endep which is an anti depressant”. Ms Brady-Jones referred to the employment injury, and said:
“Due to this she was using various pain killers, consisting of paracetamol and calmative tablets containing codeine.”
In the same statement Ms Brady-Jones referred to the deceased being prescribed Endep by Dr Killalea.
In her statement dated 9 August 2016, Ms Brady-Jones dealt with the deceased’s situation from about three weeks before the deceased’s death, when Ms Brady-Jones returned to live with the deceased following eight weeks’ holiday overseas. At [2(d)] of that statement Ms Brady-Jones said:
“I remember that she complained of being in a lot pain [sic], and as a result drank a large amount of alcohol and used pain killers and antidepressants.”
Ms Brady-Jones also referred to the deceased taking medication in her room, and the deceased saying that “the medication was the only thing that helps the pain”. She said she and the deceased had “fights over the amount of alcohol content that she was consuming and the amount of medication that she was using”. These other references did not specify the medication involved.
The respondent on this appeal submits:
“The fact that the deceased increased her dose of amitriptyline is unchallengeable… prior to 13 August 2015 she had never ingested sufficient amitriptyline to be fatal. On 13 August 2015 she ingested a fatal dose. She must have increased her dosage on that day at least.”
The difficulty with this submission is that the deceased’s death did not, on the basis of the toxicology results and the Coroner’s report, result solely from the ingestion of amitriptyline. The toxicology results, and the relevant passage from the Coroner’s report, are set out at [5] and [6] above.
The toxicology results described “the presence of multiple other drugs and medications that cause sedation and may be lethal in combination with alcohol”. The blood alcohol concentration was 0.117 g/100mL. This was said to be “not in the lethal range”. The results then referred to various other medications which were present. The report spoke of the concentration of one of them, amitriptyline, as being “at a level of 1.1 mg/L, which is within the lethal range reported in a series of deaths due solely to this agent”. The description of amitriptyline said it “is known to have overlapping therapeutic and toxic levels, and is additive with alcohol in its adverse effects”. The pathologist’s conclusion was that death resulted from “mixed drug toxicity”.
The Coroner’s report said:
“The level of amitriptyline found in [the deceased’s] system was within the lethal range reported in a series of deaths due solely to that drug, and in this case it was exacerbated by alcohol. It appears that Ms Jones died from mixed drug toxicity. There are no suspicious circumstances.”
The concentration of amitriptyline was described as “within the lethal range”, it was not described as necessarily constituting a fatal dose. On this occasion it was combined with alcohol, a substance with which amitriptyline is “additive… in its adverse effects”. The other “drugs and medications” detected “may be lethal in combination with alcohol”. However, even in the presence of the detected concentration of alcohol, they were not referred to in the pathologist’s report as being in a lethal range.
The Arbitrator at [132] of his reasons made the finding:
“I accept that death was due to significant level of amitriptyline coupled with alcohol.”
This finding was available on the expert evidence of the pathologist, and is one with which I agree.
It is conceivable that the deceased could have ingested a similar amount of amitriptyline previously, but that it was not lethal in the absence of the concentration of alcohol detected in the post mortem pathology results. This may or may not have occurred. Given the potential interaction between alcohol and amitriptyline, it cannot be inferred that, because death occurred on 13 to 14 August 2015, the deceased on that occasion ingested a larger dose of amitriptyline than she had previously. There is no other expert evidence, beyond the pathologist’s report, that sheds light on this issue. I do not accept the respondent’s submission that the deceased’s death, per se, leads to the conclusion that she took a dose greater than she had ever taken previously.
The issue was not, in any event, whether the deceased took the largest dose of amitriptyline she had ever taken, but rather whether she consumed the overdose as a result of the employment injury. The respondent’s counsel, at the arbitration hearing, submitted (at T18.30-2):
“The central question to be decide[d] is what were the causes of the deceased overdosing on 13 August? Now, the answer to that is not in why was she prescribed the medication or who gave it to her, the answer is in why does she take it?”
The respondent, in its submissions at [14]-[16], said:
“14. The relationship between the work injury and the ongoing pain and depression is one that is established by the evidence. It is a simple inference to conclude that the pain and depression contributed to the overdose of drugs and alcohol taken on 13 and 14 August 2015. That inference was available to the Arbitrator and there is no error when he reached that conclusion.
15. It is significant that the Appellant offers no other explanation for why there was an overdose that night. Given the evidence that supports the Arbitrator’s conclusion it requires an alternate explanation to displace the logical inference to be drawn. There is in fact no other available inference.
16. The evidence supports the conclusion that the subject injury and its consequences were contributing to the deceased’s depression and anxiety and those concerns would have contributed to the ingestion of too much Endep on the night of her death.”
The evidence of Ms Hewston and Ms Brady-Jones is consistent with the deceased being in significant physical and emotional distress prior to her death. The complaints to Ms Hewston were of “unbearable pain” (on 11 August 2015), “a lot of pain” (on 12 August 2015) and pain “escalating on a daily basis” (on 13 August 2015). Ms Brady-Jones recorded that the deceased, during the three weeks before her death, “complained of pain almost all of the time”. Professor Reid recorded “a significant degree of emotional distress” on the deceased’s part. Ms Brady-Jones found the deceased “very depressed and under a lot of stress. She seemed very down to me, and was very quiet.”
Ms Brady-Jones was familiar with medications for depression, and in particular Endep, as the deceased had been prescribed such medications (including Endep) previously (her statement dated 9 September 2015 at [5]). Ms Brady-Jones recorded specific complaint from the deceased that she was “in a lot of pain”, and this was why she “drank a large amount of alcohol and used painkillers and antidepressants” (her statement dated 9 August 2016 at [2(d)]). The medications in the deceased’s post mortem blood analysis, present in sufficient quantities that the pathologist referred to them in the discussion of toxicology in the Autopsy report, were diazepam, codeine, oxycodone and amitriptyline. Amitriptyline is the only one of these which is an antidepressant. It is known that the deceased was, at the relevant time, being prescribed amitriptyline by Dr Ibrahim and Dr Killalea. It is a reasonable inference that when Ms Brady-Jones referred to the deceased taking antidepressants, this was a reference to her taking amitriptyline.
It follows that the deceased’s statement to Ms Brady-Jones, that she took antidepressants because she was in a lot of pain at that point, was (it may be appropriately inferred) evidence that she took amitriptyline for this reason. It was also evidence that this was why she “drank a large amount of alcohol”. In the discussion above, dealing with Ground No (i), I concluded that the evidence supported the inference drawn by the Arbitrator, that the deceased’s mental state was adversely affected by the consequences of the employment injury.
The Arbitrator, at [157]-[158] of his reasons, found that the deceased “increased her consumption of medication (and in particular amitriptyline)”, to “help her to cope”, and “in an attempt to improve her low mood”, in the days after 11 August 2015. The appellant submits there was no evidence that the deceased increased her dosage of Endep after, or as a result of, her employment injury. It submits there was no evidence that the deceased took increased doses of Endep for pain, or to help her cope.
It is not necessary that the respondent establish that the deceased, in the lead up to her death, consumed more amitriptyline than she had taken in the past. Rather, it is necessary, if the respondent is to succeed, that she establish that the employment injury materially contributed to the fatal ingestion of amitriptyline. There was ample evidence of the deceased’s low mood. There was ample evidence of the deceased’s regular complaints of pain, to Ms Hewston and Ms Brady-Jones, her twin sister and her daughter. There were associated complaints to Ms McIver. There was evidence from Ms Brady-Jones that the deceased took medication, including amitriptyline, because she was in a lot of pain. In those circumstances, the deceased consumed a dose of amitriptyline which was fatal. I accept the respondent’s submission, that the available and compelling inference is that pain and depression, occasioned by the employment injury, materially contributed to the overdose taken on 13 August 2015.
The alternative explanation for the overdose, set out in the appellant’s submissions in reply, is that “the Deceased had a long history of depression and increased dosage prescriptions for Endep”. This submission effectively is that it was coincidental that the overdose occurred in these particular circumstances, there was not a relevant causal link between the overdose and the employment injury.
The evidence is consistent with the deceased having a long history of problems with depression, and being a long term user of Endep, with increasing dosages. The Arbitrator acknowledged as much, in his description of her as “vulnerable”. The overdose occurred following the deceased’s uterine prolapse, while she was in significant pain, suffering “emotional distress at the alteration in her genital anatomy”, her mental state adversely affected, about two to three days after she had gone off work due to pain, whilst she was awaiting surgery (about which she was apprehensive) involving repair of the prolapse and possible hysterectomy.
The employment injury, in a vulnerable person, resulted in significant complaints of pain, and a worsening of her mental state. These were associated with the consumption of alcohol, pain killers and antidepressants (on the probabilities, amitriptyline). The deceased died as the result of her consumption of an accidental overdose of amitriptyline. On the probabilities, the materials “justified an inference of probable connection” (the language in Fernandez). On the probabilities, the employment injury, and its physical and mental consequences, materially contributed to the death of the deceased. The deceased’s death resulted from the employment injury, consistent with the principles in Kooragang and Baltica referred to above.
Grounds Nos (ii), (iii) and (iv) fail.

DECISION

The Arbitrator’s determination dated 25 August 2016 is confirmed.

Michael Snell
Acting President

23 December 2016