Sellings v New South Wales Police Force
[2015] NSWWCCPD 40
•2 July 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Sellings v New South Wales Police Force [2015] NSWWCCPD 40 | ||
| APPELLANT: | Rodney Sellings | ||
| RESPONDENT: | New South Wales Police Force | ||
| INSURER: | Employers Mutual Ltd TMF No 2 | ||
| FILE NUMBER: | A1-5582/14 | ||
| ARBITRATOR: | Mr R Foggo | ||
| DATE OF ARBITRATOR’S DECISION: | 25 March 2015 | ||
| DATE OF APPEAL DECISION: | 2 July 2015 | ||
| SUBJECT MATTER OF DECISION: | Alleged primary psychological injury; s 65A of the Workers Compensation Act 1987; causation of psychological injury; challenge to factual findings | ||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Whitelaw McDonald | |
| Respondent: | Moray & Agnew | ||
| ORDERS MADE ON APPEAL: | The findings made by the Arbitrator and the award made as found in Certificate of Determination dated 25 March 2015 are confirmed. | ||
BACKGROUND
Mr Rodney Sellings was, at relevant times, a serving officer of the New South Wales Police Force (the respondent). Mr Sellings’ appeal concerns a challenge to a finding made by an Arbitrator that he had no entitlement to lump sum compensation in respect of whole person impairment. That impairment was alleged to have resulted from a primary psychological injury received by him in the course of his employment with the respondent.
It should be noted at the outset that Mr Sellings, by reason of his former employment as a police officer, retains his entitlements to compensation in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act) as they stood before the passage of the Workers Compensation Legislation Amendment Act 2012: Sch 6.19H.25 to the 1987 Act.
On 4 July 2013, Mr Sellings’ solicitors gave written notice of claim to the respondent and its insurer in respect of lump sum compensation (ss 66 and 67 of the 1987 Act). The claim form which accompanied that correspondence alleged a whole person impairment of 19 per cent by reason of “psychological/psychiatric disorder” resulting from injury said to have occurred on 7 June 2010. No particulars of the circumstances or of the alleged cause of the injury were then provided.
Following dispute concerning Mr Sellings’ entitlement to the benefits claimed, these proceedings were commenced in the Commission in October 2014. The application filed on behalf of Mr Sellings alleged the date of injury as being 1 January 2010. That date was, subsequently, amended in accordance with the original claim. However the date 1 January 2010 is of significance. It is not disputed that on that day Mr Sellings, in the course of his employment, when apprehending an alleged offender, received a significant injury to his neck. Mr Sellings has since that injury undergone two procedures being surgical decompression at the hands of Professor M Stoodley, neurosurgeon, in May and August 2010. It appears, but the evidence is in many respects deficient, that Mr Sellings did not, by reason of the consequences of his neck injury, return to active duty, and was discharged from the Force in July 2011.
At a telephone conference conducted by an Arbitrator in January 2015, the parties identified the issues in dispute which were then recorded as follows:
“1. whether [Mr Sellings’] psychological injury was the result of exposure over the years to a series of violent and traumatic events or whether it was the result of the assault on 1 January 2010 ([Mr Sellings] asserts the former and the respondent the latter), and
2. whether [Mr Sellings’] psychological injury is a primary psychological injury or whether it is secondary to the physical injury he suffered to his neck on 1 January 2010.”
It may be seen that the matter in dispute between the parties concerned the question of causation of a psychological or psychiatric condition that had been diagnosed. Whilst the evidence suggests different diagnoses, there was no real dispute that Mr Sellings suffered such a condition.
The question of causation had particular relevance given the terms of s 65A of the 1987 Act which provided, before the 2012 amendments:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division (either as permanent impairment compensation or pain and suffering compensation) in respect of permanent impairment that results from a secondary psychological injury.
Note. This does not prevent a secondary psychological injury from being compensated under section 67 as pain and suffering resulting from permanent impairment (but only if that permanent impairment results from a physical injury or a primary psychological injury).
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division (either as permanent impairment compensation or pain and suffering compensation) in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note. If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply:
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note. If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section:
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
The matter came before Arbitrator Robert Foggo for conciliation and arbitration on 4 March 2015. The matter proceeded to hearing and the Arbitrator reserved his decision. A Certificate of Determination, accompanied by a Statement of Reasons, was issued on 25 March 2015 which recorded the following :
“The Commission determines:
1. Award for the respondent in respect of the applicant’s claim that on 7 June 2010 he suffered a primary psychological injury as a result of his exposure to traumatic events during his employment with the respondent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
PRELIMINARY MATTERS
Thresholds
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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
On the papers
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions 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 grounds of appeal relied upon by Mr Sellings are expressed as follows:
“1. The Arbitrator erred in his examination of the medical evidence.
2. The Arbitrator erred in his examination of the Applicant’s evidence.
3. The Arbitrator erred in asserting a diagnostic pathway for post traumatic stress disorder (PTSD) which is not consistent with the medical evidence.”
It may be seen that Mr Sellings has failed to identify in those grounds the errors allegedly committed by the Arbitrator. The mere suggestion in each ground that the Arbitrator had “erred” in his approach to the evidence does not constitute an allegation of relevant error. 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 submissions put in support of each ground suggest that the Arbitrator’s conclusions of fact were “inconsistent with the evidence”; that the Arbitrator had “[ignored] strong medical evidence” concerning diagnosis of Mr Sellings’ condition; that the Arbitrator’s conclusion as to causation was “totally at odds with established medical opinion and practice”; that the Arbitrator had “erred in his assertion of an alternative diagnostic pathway”, and that the Arbitrator had failed “to address the issue of what that injury actually was and whether it is secondary to the injury to his cervical spine”.
The manner of presentation of the appeal constitutes a failure to comply with the requirements of Practice Direction No 6 and is, thus, unhelpful. The arguments as advanced with, perhaps, the exception of one submission put in respect of ground three, appear to seek a review of the Arbitrator’s decision. As noted above, such review is expressly excluded by the terms of s 352(5).
Having regard to the general tenor of the submissions put on behalf of Mr Sellings, it is reasonably clear that he asserts factual error on the Arbitrator’s part concerning the question of causation of his psychiatric or psychological condition. Such, on the present facts, raises the question of the correctness or otherwise of the Arbitrator’s determination that Mr Sellings’ psychological condition was not a primary psychological condition within the meaning of s 65A and was thus not compensable. I note that it is conceivable that one argument, concerning the Arbitrator’s approach to the expert medical evidence, constitutes suggested error of law in that it seems to be put that there was no evidence before the Commission that could permit the conclusion reached.
THE ARBITRAL PROCEEDINGS
The proceedings were recorded and a transcript has been produced. Copies of that transcript have been made available to the parties. No oral evidence was adduced before the Arbitrator. The documentary evidence tendered on behalf of the parties was identified at [8] of the Arbitrator’s Reasons.
The evidence of Mr Sellings
There is in evidence a written statement made by Mr Sellings dated 9 December 2013. Mr Sellings joined the New South Wales Police Academy in August 2000 and was attested as a police officer on 29 August 2001. He was first stationed at Moree. Mr Sellings was granted a compassionate transfer to the northern region, Coffs/Clarence LAC and was stationed at Bellingen commencing on 3 September 2002. The grounds for the transfer are not revealed in that statement. Mr Sellings completed his tenure at Bellingen following which he was transferred to Coffs Harbour.
Mr Sellings stated that he continued working at Coffs Harbour in general duties, custody management and supervising roles, until he was injured on 1 January 2010. He was medically discharged from the NSW Police Force on 21 July 2011. Since that discharge he has undergone two cervical spine operations with very little benefit. It was further stated that he had been diagnosed with “chronic depression, chronic anxiety and chronic post traumatic stress disorder”.
Mr Sellings’ statement contains considerable detail of numerous terrifying, disturbing and gruesome experiences which had occurred during his service as a police officer. The statement does not include any detail of any emotional or other reaction to these incidents having been experienced by Mr Sellings.
The expert medical evidence
The following reports and correspondence were tendered on behalf of Mr Sellings:
Report from Mr Ian F McCombie, psychologist, addressed to Dr I Martyn dated 24 June 2010
Mr Sellings had been referred to Mr McCombie by Dr Martyn. The first consultation occurred on 23 June 2010. The following history of injury was recorded:
“Rod reported that he was a General Duties police officer, joining the NSW Police Force (NSWPF) in 2000. He stated that he had worked at Moree, for 12 months, Bellingen for 3 years and in Coffs Harbour since 2004.
Rod reported that he had been exposed to the usual traumatic situations encountered by General Duties (GD) officers – violence, death from all causes, attendance at motor vehicle accidents and the management of injured people, domestics and personal attack with weapons as well as physical violence. He stated that he had been managing this exposure to trauma reasonably well.
However, he stated that, on the 31/12/09, he had sustained a left shoulder and neck injury when assisting to put a person in the police truck. He stated that, as he was closing the door, the person kicked out and forced the door back, causing Rod to sustain neck and left shoulder injuries. He stated that he had not felt injured initially but that he had subsequently developed left shoulder and neck pain and numb fingers.
Rod stated that some 3 or 4 weeks ago, he had sustained the exacerbation of his injury while rolling over in bed.”
Mr McCombie recorded Mr Sellings’ “[p]resent problems” as:
“Rod stated that, since the accident of the 31/12/09, he had developed the following physical and emotional problems.
Physical problems:
· Left shoulder ache – hurts with activity with kids/dirt bike (3/4-5/6);
· stiff neck; numb neck; stiff and sore;
· weight gain 5 kg.
Emotional problems
· anxiety: sleep disturbance, wakes, toss and turn always since joining in the police, but more now since his injury and pain; dreams occasional real life and real life based – related to traumatic situations he had encountered in his work; emotionality and emotional numbness; angry and irritable (“personality change” and attacks family about which he feels very guilty); avoids mates and friends – not capable; severe fear of further injury;
· depression: feels low, unhappy, sad; low confidence; low motivation, energy; upset kids don’t like him because of his behaviour; upset that there has been no work contact – one brief call – and not much support from the police;
· cognitive probs, forgetful drifts off (for a while);
· alcohol: under WHO guidelines.”
Mr McCombie expressed the opinion:
“I think that given that Rod’s disorders commenced with the accident of the 31/12/09, that his signs and symptoms are consistent with this incident being the cause of his disorders and that there are no other causes for his disorders, his mental disorders, as outlined above, are substantially work caused.”
Mr McCombie’s diagnosis was stated to be “Adjustment Disorder with Mixed Anxiety and Depressed Mood – Chronic – Moderate severity; and pain Disorder associated with Psychological Factors and a General Medical Condition”.
Copy of facsimile dated 21 July 2014 from Mr McCombie to Mr Sellings’ solicitor, Mr Hetherington
That correspondence addressed the question of diagnosis. Mr McCombie expressed the view that Mr Sellings was, by reason of his neck injury and its impact upon his life, “less able to articulate the full state of his emotional problems” when he initially presented to Mr McCombie. Mr McCombie noted that “[b]ecause of his desire to not be seen as weak physically or emotionally, Mr Sellings tried to minimise his emotional and pain problems”. Because of his circumstances, Mr Sellings did not, in Mr McCombie’s view, “report clear signs of post traumatic stress disorder (PTSD) when initially seen”. Notwithstanding Mr McCombie’s earlier diagnosis as expressed in his correspondence dated 24 June 2010, subsequently described as a “working diagnosis”, he stated that he had an “underlying thought” that Mr Sellings “suffered from Post-traumatic Stress Disorder and a Major Depressive disorder” but, at the time of the first consultation Mr McCombie “was not confident that [Mr Sellings] met the full criteria for these diagnoses – given his reticence”. It was Mr McCombie’s view that by November 2011 Mr Sellings “was showing signs of a clear PTSD”.
Report of Dr Ian Martyn, general practitioner, addressed to NSW Police Service dated 1 December 2010
That report recorded the two “ongoing conditions” suffered by Mr Sellings. Dr Martyn noted Mr Sellings’ “long term pain in his left neck, shoulder and arm” and recorded his treatment at the hands of Professor Stoodley. Also recorded was “reactive depression and anxiety”. Dr Martyn expressed the view that Mr Sellings would “never be able to return to police duties due to his neck injury. His psychological problems as outlined by Ian McCombie also preclude him from returning to the police force.” Dr Martyn enclosed a copy of a report from Mr McCombie (which had not been included in the tender).
Two reports from Associate Professor Michael Robertson, consultant psychiatrist, dated 13 June 2013 and 30 September 2013
These reports were prepared for the purposes of this litigation. The first of those reports recorded a history concerning the neck injury received on new year’s eve 2010. Also recorded was that Mr Sellings’ “mental health difficulties date back to perhaps the mid-2000’s.” Dr Robertson recorded that Mr Sellings had reported that he had “encountered numerous traumatic events [in the course of his general police duties and] had been affected by a number of fatal motor vehicle accidents he had attended in the mid north coast area, as well as dealing with violent offenders”. The view was expressed that Mr Sellings “is suffering from chronic posttraumatic stress disorder”. Dr Robertson also recorded that Mr Sellings suffers a chronic pain syndrome and alcohol abuse. Dr Robertson had been asked to express an opinion as to “whether [Mr Sellings’] employment and the incidents he has been exposed to during the course of that employment were a substantial contributing factor to the injury”. Dr Robertson replied:
“Mr Sellings ceased duties as a consequence of an incident where he sustained injuries to the cervical spine during an affray. This occurred against a background of cumulative exposure to traumatic events in the course of his work as a police officer. As such, work was a substantial contributing factor.”
Dr Robertson assessed Mr Sellings’ whole person impairment by reason of his mental state as being 19 per cent.
The second report by Dr Robertson is addressed to the respondent’s insurer. That report was requested by the insurer with particular attention drawn to a report of Dr Graham George which had been forwarded to Dr Robertson for comment. That report concerned a diagnosis that Mr Sellings suffered obstructive sleep apnoea (OSA). Dr Robertson accepted the correctness of Dr George’s statement that “severe OSA can exert deleterious psychological symptoms”. Dr Robertson disputed the assertion that OSA would account for more than three per cent of Mr Sellings’ whole person impairment.
The following reports and correspondence were tendered in evidence on behalf of the respondent:
Reports from Mr McCombie
The first is an undated letter addressed to “Dear Ian” (plainly Dr Martyn) from Mr McCombie which records that Mr Sellings had been seen again on 16 February 2011. At that time, Mr Sellings was in a state of severe distress in response to having received a copy of a report by Dr Michael Prior. It was Mr McCombie’s view that hospitalisation of Mr Sellings may assist to “help him to settle”. Treatment at St John of God Hospital, at the PTSD program, was recommended.
There is also an undated letter addressed to Dr Martyn. Mr McCombie records that he saw Mr Sellings most recently on 12 June 2012. Mr Sellings appeared to be “calm, flat and in control of his life”. Mr Sellings reported to Mr McCombie that he was “not presently being troubled by signs of his PTSD and/or Major Depression and that he felt that his life was manageable”. Further surgery to his neck at the hands of Professor Stoodley was recorded. Mr McCombie reported that his treatment had come to an end.
Another document authored by Mr McCombie is, again, undated and is addressed to “Dear Ian”, which appears to be Dr Martyn. There is no indication in that correspondence as to the probable date of its transmission to Dr Martyn, however it is recorded that Mr Sellings had “redeveloped his anxiety, depression and threat sensitivity, ruminations about physical problems and increased pain in his neck”. Mr McCombie was of the opinion that Mr Sellings had developed a “significant exacerbation of his emotional problems”.
A further undated letter addressed to Dr Martyn from Mr McCombie records that Mr Sellings had been seen “yesterday”. Mr Sellings was “quite confused following his follow up assessment by Dr Stoodley, which has increased his experience of anxiety and depression”. Mr McCombie referred Mr Sellings to Dr Martyn for further management.
Report of Dr Michael Prior, consultant psychiatrist, dated 13 December 2010
This report is addressed to the respondent. Dr Prior examined Mr Sellings on 7 December 2010 at the request of the respondent. Dr Prior recorded a date of injury as being 1 January 2010. Also recorded was that Mr Sellings “denied significant stressors or life events in his work environment background”. Dr Prior recorded “there was no pre-existing psychiatric condition prior to his date of injury”. When summarising Mr Sellings’ psychiatric symptoms, Dr Prior noted that “Mr Sellings described secondary anxiety and affective symptoms to his pain and physical limitation and change to his lifestyle and capacities because of his pain and physical limitation”. Dr Prior recorded the onset of secondary affective and anxiety symptoms occurring “about two months following the date of injury”. Dr Prior diagnosed “Chronic Adjustment Disorder with Anxious and Depressed Mood”. He expressed the view that that condition “is a secondary psychiatric diagnosis having its onset at some stage following the injury and being caused by Mr Sellings’ pain and physical limitations and changes to lifestyle and social and recreational activities because of his pain and physical limitations”. Later in that report Dr Prior stated that “Mr Sellings’ adjustment disorder is a secondary disorder entirely driven by his underlying pain and physical limitations”.
Report of Dr Martyn addressed to Dr K Reinhardt, dated 22 March 2011
This correspondence appears to be a letter of referral by Dr Martyn of Mr Sellings to Dr Reinhardt. The injury received by Mr Sellings in January 2010 is recorded. Dr Martyn proceeded to state “since that time he has become increasingly depressed and anxious”. I note that Dr Reinhardt is, as recorded by Mr McCombie, a practitioner who conducts the PTSD program at the St John of God Hospital.
Reports from Dr Graham George, psychiatrist, dated 6 September 2013 and 27 March 2014
These reports are addressed to the respondent’s insurer and had been prepared for the purposes of this litigation. Dr George recorded a history concerning the neck injury in January 2010 and subsequent treatment. Mr Sellings gave a further history that at times he would remember traumatic events which he had attended in the past involving road fatalities or suicides. Mr Sellings recalled that in the past “he had sought the help of an EAP counsellor with a particular suicide of a young man”. Dr George’s diagnosis was one of Major Depression (inclusive of symptoms of post traumatic stress disorder). He expressed the view that that condition related to the injury of 1 January 2010. Dr George had earlier taken a history of Mr Sellings’ experience of obstructive sleep apnoea. The view was expressed that “obstructive sleep apnoea could contribute to his presentation as well as his alcohol abuse”.
The second report dated 27 March 2014 was written by Dr George in response to particular questions put to him by the insurer. When questioned as to whether Mr Sellings suffered a primary or secondary psychological injury as a result of his employment, Dr George responded in part:
“I stated that his major depression was contributed to by chronic pain, which he indicated he suffered on a daily basis and I acknowledge that he did have elements of chronic post traumatic stress disorder related to workplace events”.
Dr George concluded his response by stating:
“Mr [sic, my] general assessment of Mr Sellings is, therefore, that his pain disorder was the initial reason that he left work. His psychological condition has been contributed to by a number of different factors that followed subsequently and I see his psychological/psychiatric condition as being secondary to a pain disorder.”
The factors contributing to Mr Sellings’ depressive disorder included, in the opinion of Dr George, “pain disorder, alcohol abuse, untreated severe obstructive sleep apnoea with probable cognitive deficits and whilst in a depressed state, he has then become preoccupied by past traumatic events associated with his police career”.
Submissions before the Arbitrator
Counsel appearing on behalf of Mr Sellings was permitted leave to amend the alleged date of injury by deleting reference to 1 January 2010 and substituting that date with 7 June 2010. The Arbitrator enquired of counsel as to the relevance of the date 7 June 2010. There followed an exchange between the Arbitrator and both counsel, however the relevance of the amended date remained obscure. Mr Sellings’ counsel suggested that it was relevant having regard to the date of referral of Mr Sellings by Dr Martyn to Mr McCombie and that the date appeared in the original claim.
Mr Sellings’ counsel submitted that the matter was “complicated” given that Mr Sellings had ceased work by reason of the severe injury to his neck and that treatment in respect of his neck was conducted “on a parallel line with, what we say is, treatment for the psychological injury which, we say, … is a stand-alone injury” (T5). Counsel proceeded to address the expert medical evidence with particular emphasis placed upon history as recorded by Mr McCombie. Counsel appeared to suggest that the fact that the respondent paid for treatment at the St John of God Hospital was relevant to issues before the Arbitrator.
Reference was made by counsel to the opinion of Associate Professor Robertson. Whilst not clearly stated, it was argued that, having regard to the recorded complaints made to the various medical practitioners, it appeared that “… into the middle to late 2010, nearly a year after the neck injury [Mr Sellings] is still pretty much in denial of anything to do with PTSD”.
Mr Sellings’ counsel argued that the disturbing and gruesome experiences described by Mr Sellings in his statement were “sufficient for Dr Robertson to base his diagnosis of PTSD”. It was argued that Dr George’s suggestion of the relevance of the sleep apnoea should be rejected. Submissions were concluded with the following statement by counsel for Mr Sellings concerning the diagnosis of PTSD: “It’s something that evolved out of [Mr Sellings’] treatment and it evolves, in my submission, from an accumulation of traumatic events.” Counsel argued that there was abundant evidence to permit “a finding of a separate injury” (T13-14).
Counsel for the respondent appeared to accept that Mr Sellings suffered “some psychological difficulties” (at T16) but argued that the opinion of Dr Robertson should not be accepted given the inaccuracy of the history recorded. Counsel contrasted the history as recorded by Mr McCombie with that recorded by Dr Robertson.
Submissions were put that the evidence suggests that:
“…there was no overt symptomatology until after January 2010. There is a strong temporal connection between the accident and the subsequent development of symptoms and that in the light of that [the Commission] would find that it is more probable than not that these symptoms of which the applicant complains have a genesis in the assault on 31 December 2009 and not the work that preceded it …” (at T21).
The Arbitrator’s decision
At the outset of his Statement of Reasons, the Arbitrator identified the issues for determination noted above at [5]. Following a summary of submissions put on behalf of each party, the Arbitrator addressed the content of the expert medical witnesses’ reports. Particular attention was given to the history as recorded by Mr McCombie. A conclusion was reached by the Arbitrator at [32] that “Mr McCombie must have diagnosed [Mr Sellings] to be suffering from PTSD, or to have elements of that condition [as at February 2011] to specifically refer him to a PTSD program requiring hospitalisation”.
The Arbitrator noted that Mr McCombie made no mention in his report to Dr Martyn forwarded in February 2011 of “previous traumatic events during his service as a policeman as being the initiators or contributors to the PTSD condition”.
Reference was made by the Arbitrator to the undated report addressed to Dr Martyn where it is recorded that Mr Sellings had presented “in a state of significant distress in response to the lack of progress with regard to his neck surgery”. The Arbitrator proceeded to state (at [35] and [36] of Reasons):
“It is therefore apparent that the contemporaneous records of the treating psychologist demonstrate that the significant worsening of [Mr Sellings’] psychiatric symptoms, sufficient to require hospitalisation for PTSD treatment, was a result of [Mr Sellings] becoming aware of the contents of the report from Dr Prior, which had put [Mr Sellings] into ‘a state of severe distress’.
My finding that this reaction was what caused [Mr Sellings] to be hospitalised and treated for PTSD is, I think, supported by the manner in which [Mr Sellings] describes his exposure to traumatic events.”
The Arbitrator proceeded to address the contents of Mr Sellings’ statement concerning the traumatic events. The observation was made by the Arbitrator that Mr Sellings’ description of the effects of those events upon him is “quite laconic”. Observations were also made that Mr Sellings made no comment “upon the effect of these disturbing incidents upon him”, which were set out in the first two pages of his statement. The balance of the statement was addressed, following which the Arbitrator made the observation (at [40] of Reasons) that:
“[Mr Sellings] describes no instance where he has experienced difficulty in dealing with these events and so it would seem that a vital link in the chain of causation between traumatic events and the development of a PTSD condition seems to be missing in [Mr Sellings’] accounts of these series of gruesome incidents. [Mr Sellings’] descriptions do not enable one to discern how these events affected him at the time.”
The Arbitrator further observed that there is nothing to be found in Mr Sellings’ statement “which describes when his thoughts or recollections over these incidents became intrusive, and when this occurs in the context of the psychological problems which ensued from his physical injury”.
The Arbitrator, at [45] of his Reasons, concluded that the opinion of Dr Robertson was of no assistance or evidentiary weight. His reasons for so concluding included an absence in Dr Robertson’s report of detail concerning the timing of the presentation of symptoms occurring “in the context of [Mr Sellings’] psychological difficulties stemming from his physical injuries in respect of which he was referred to Mr McCombie on 23 June 2010.”
The Arbitrator proceeded to accept the evidence, found in Mr McCombie’s report concerning Mr Sellings’ presentation on 16 February 2011, that the “stressors which are their [sic, there] contemporaneously enumerated are all related to the consequences of his physical injury on 1 January 2010”.
The conclusion reached by the Arbitrator is expressed at [49] of Reasons as follows:
“Accordingly I am not persuaded that [Mr Sellings’] psychological condition is a primary psychological injury as a result of his exposure to traumatic events during his service with the respondent.”
The Arbitrator proceeded to make the award noted at [8] above.
DISPOSITION OF THE APPEAL
Ground one
Mr Sellings draws attention to the Arbitrator’s evaluation of the evidence of Mr McCombie. It seems to be argued that factual error has been made at [27] of the Arbitrator’s Reasons where he concluded, after summarising the initial diagnosis stated by Mr McCombie, “[i]t is therefore readily apparent from Mr McCombie’s contemporaneous reports that [Mr Sellings] had no discernible signs of PTSD when first seen by Mr McCombie.” It is put that such conclusion “is not supported [by Mr McCombie]” (at [1.5] of submissions on appeal).
It is correctly asserted by Mr Sellings that Mr McCombie, when responding to correspondence received by him from Mr Sellings’ solicitors, explained his “working diagnosis” as originally expressed (as is noted at [21] above where facsimile dated 21 July 2014 is summarised).
That explanation found in Mr McCombie’s facsimile demonstrates that Mr Sellings “did not report clear signs of [PTSD]” when he first attended Mr McCombie. That statement affords an evidentiary basis for the Arbitrator’s conclusion concerning “no discernible signs of PTSD when first seen by Mr McCombie”. I am not persuaded that any relevant error is made out.
The narrative form of argument gives rise to difficulty in identifying the precise complaints made, however it seems that particular attention is given to Mr McCombie’s revised diagnosis, being that of PTSD, which, it is argued, had plainly come about in February 2011 when Mr Sellings was referred to the St John of God Hospital. The evidence of Mr McCombie is, it seems, relied upon to explain why, when first examined, Mr Sellings was “reticent” concerning his reaction to trauma as described in his statement.
The Arbitrator’s Reasons demonstrate, in my opinion, that such explanation was not accepted. The Arbitrator’s reasons for rejecting those statements made by Mr McCombie extended beyond the absence of contemporaneous complaint concerning workplace trauma and associated symptoms. Particular reference is made by the Arbitrator to the view expressed by Mr McCombie concerning the relevance of Mr Sellings having read the report of Dr Prior, and, in particular, to the absence of meaningful evidence from Mr Sellings concerning relevant reaction to the workplace trauma.
Leaving aside the question as to whether the Arbitrator’s analysis of the evidence as to diagnosis is correctly outlined in Mr Sellings’ submissions, it was not in issue before the Arbitrator that Mr Sellings had suffered a relevant psychological or psychiatric injury. The Arbitrator’s Reasons, in my view, address the question of causation of such condition. That question, not the question of diagnosis, required determination, and the Arbitrator ultimately concluded that the relevant condition was causally related to the physical injury. Mr McCombie had, as is submitted, expressed “two clear and separate diagnoses”. It remained for the Arbitrator to determine on the evidence whether there had been “clear and separate injuries”. The Arbitrator’s conclusion that Mr Sellings had not suffered a primary psychological injury as a result of exposure to traumatic events (Reasons at [49]) was available on the evidence. No error is made out. Ground one fails.
Ground two
It seems that this ground suggests commission of error by the Arbitrator in concluding that, because Mr Sellings had not “articulated a response to [the traumatic events]”, there exists “an obstacle to being able to conclude a causal link between [that exposure and the PTSD condition]” (at 2.1 of submissions).
The Arbitrator examined the evidence of Mr Sellings concerning the traumatic events between [36] and [39] of Reasons. The Arbitrator’s evaluation of that evidence is to be found at [40] and [41] of Reasons, where it was stated:
“He describes no instance where he has experienced difficulty in dealing with these events and so it would seem that a vital link in the chain of causation between traumatic events and the development of a PTSD condition seems to be missing in [Mr Sellings’] accounts of these series of gruesome incidents. [Mr Sellings’] descriptions do not enable one to discern how these events affected him at the time.
More importantly, there is nothing in this statement which describes when his thoughts or recollections over these incidents became intrusive, and when this occurs in the context of the psychological problems which ensued from his physical injury.”
The Arbitrator’s evaluation of the evidence of Mr Sellings was, in my view, open to him. The relevance of that evidence to the question of causation of PTSD was a matter for the Arbitrator’s determination. The Arbitrator concluded (at [42] of Reasons) that the evidence of Mr McCombie and Dr Robertson failed to explain:
“[H]ow the initial psychiatric condition which developed in response to [Mr Sellings’] physical injury on 1 January 2010 either changed to PTSD or how it became a fresh psychiatric injury which only had its genesis in the exposure to trauma, and not to the physical injury of 1 January 2010” (at [42] of Reasons).
The deficiency, identified by the Arbitrator, to be found in the expert medical evidence was not overcome by the evidence, as evaluated by him, of Mr Sellings. Nor was it overcome, in the Arbitrator’s view, by anything stated by Mr McCombie in his communication dated 27 July 2014. No relevant error is made out.
It should be noted that a number of submissions were made in respect of this ground which could not, given the state of the evidence, be in any manner persuasive of error. As to submission 2.2 there was no evidence of, nor could the Arbitrator take notice of, “established medical opinion and practice”. Likewise there was no persuasive evidence, nor any basis upon which notice could be taken by the Arbitrator, of “policing culture” or “usual indicators” of PTSD. The assertion made at submission 2.4 that “the circumstances in which [Mr Sellings] suffered the neck injury are not capable… of being causally responsible for [Mr Sellings’] PTSD” is not supported by evidence and is made in disregard of the opinion of Dr George as is noted at [22] above.
Ground two is not made out.
Ground three
It is suggested in argument that “it is not clear from the Arbitrator’s Statement of Reasons as to what conclusions he reached regarding the actual diagnosis of [Mr Sellings’] psychological injury”. Such argument fails to acknowledge the Arbitrator’s acceptance that Mr Sellings’ psychiatric symptoms worsened significantly after he became aware of the contents of Dr Prior’s report and that hospitalisation and treatment for PTSD was required (at [35] and [36] of Reasons). It is implicit that a diagnosis of PTSD was accepted by the Arbitrator.
The Arbitrator’s reasoning plainly demonstrates that he had rejected Mr Sellings’ argument that he suffered from a “separate PTSD condition” (emphasis added) that is, that his symptoms of PTSD which required treatment were caused by his exposure to traumatic events.
That conclusion reached by the Arbitrator did not require, as seems to be suggested, that the Arbitrator “embark upon an alternative diagnostic pathway for either PTSD or PTSD type symptoms” as put at 3.3 of submissions.
In so far as the arguments raised under this ground may be construed as suggesting that there was an absence of evidence which permitted the Arbitrator’s conclusion as to causation of Mr Sellings’ undoubted psychological condition, such arguments must be rejected. Some support for Mr Sellings’ case is found in the evidence of Dr Robertson who recorded the history noted at [21] above. Mr McCombie’s evidence, which constitutes a reconsideration by him of relevant matters and diagnoses, also affords Mr Sellings support. Those opinions have been rejected by the Arbitrator. His reasons demonstrate the basis upon which such evidence was rejected, and his conclusions were available to him having regard, in my view, to the evidence as a whole. Ground three fails.
DECISION
The findings made by the Arbitrator and the award made as found in Certificate of Determination dated 25 March 2015 are confirmed.
Kevin O'Grady
Deputy President
2 July 2015
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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