State Fire Commission v Benefield - [2017] TASSC 20

[2017] TASSC 20

COURT: SUPREME COURT OF TASMANIA

CITATION: State Fire Commission v Benefield [2017] TASSC 20

PARTIES:  STATE FIRE COMMISSION
  v
  BENEFIELD, Stephen Maxwell

FILE NO: 3116/2016
DECISION

APPEALED FROM: B v State Fire Commission [2016] TASWRCT 31

DELIVERED ON:  31 March 2017
DELIVERED AT:  Hobart
HEARING DATE:  16 March 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Workers Compensation – Assessment and amount of compensation – Amount of compensation during incapacity – Lump sum payments – Permanent impairment and loss – Psychiatric or psychological injury – Impairment or symptoms thereof arising as consequence of physical injury.

Workers Rehabilitation and Compensation Act1988 (Tas), s 72(2)(a).
Aust Dig Workers Compensation [361]

Workers Compensation – Assessment and amount of compensation – Amount of compensation during incapacity – Weekly payments – Partial incapacity – Worker's ability to earn in suitable employment – Employer's onus of proof not discharged.

Workers Rehabilitation and Compensation Act1988 (Tas), s 69.
Aust Dig Workers Compensation [379]

REPRESENTATION:

Counsel:
             Appellant:  P L Jackson SC
             Respondent:  C J Gunson SC
Solicitors:
             Appellant:  Page Seager Lawyers
             Respondent:  Phillips Taglieri

Judgment Number: [2017] TASSC 20
Number of paragraphs: 44

Serial No 20/2017
File No 3116/2016

STATE FIRE COMMISSION v STEPHEN MAXWELL BENEFIELD

REASONS FOR JUDGMENT BLOW CJ

31 March 2017

On 17 July 2012 a worker named Stephen Benefield, the respondent in this proceeding, was injured in the course of his employment by the State Fire Commission. He made a claim for compensation under the Workers Rehabilitation and Compensation Act 1988 ("the Act"), and commenced to receive payments of compensation. Subsequently disputes arose in relation to three matters – his entitlement to the payment of certain physiotherapy expenses, his ongoing entitlement to weekly payments of compensation, and the extent of his "whole person impairment". The Workers Rehabilitation and Compensation Tribunal ("the Tribunal"), constituted by its Chief Commissioner, Mr S R Carey, conducted a hearing in relation to all three disputes. The worker was successful in relation to each issue: B v State Fire Commission [2016] TASWRCT 31. This is an appeal by the employer from the determinations of the learned Chief Commissioner. The determination relating to physiotherapy expenses is not challenged, but the others are.

Whole person impairment

The worker was injured as a result of a large metal gate falling onto him at the employer's premises. The gate was designed not to fall down, but something went wrong. The worker was physically injured. The learned Chief Commissioner described his continuing physical difficulties as follows:
"It is accepted that he now suffers chronic pain which affects his neck, shoulders and upper limbs. He also suffers episodes of significant stiffness in his spine that he describes as 'locking up' of his neck and upper thoracic spine. He also suffers pain in his hip on occasions he still has episodes of chest pain. In summary, his physical capacity is significantly reduced by these ongoing effects of his injury."
Those findings were not challenged in this appeal.
Some time after the day of the accident, the worker commenced to suffer from post-traumatic stress disorder ("PTSD"). In the proceedings before the Tribunal, the worker sought to have the extent of his permanent impairment assessed by reference to both his physical impairment and the impairment resulting from his PTSD. The employer contended that only the physical impairment should be taken into account. The learned Chief Commissioner rejected the employer's submissions, took the PTSD into account, and made an order that "the worker has suffered a whole person impairment of 5% in respect of his physical injury and 17% in respect of his psychiatric injury". He went on to determine that the worker had suffered "a permanent impairment of not less than 20% of the whole person".
Those percentages were significant for two purposes. First, under s 71(1)(b) of the Act, a worker who suffers "permanent impairment assessed at a percentage of the whole person of between 5% and 70%, inclusive" is entitled to a lump sum by way of compensation. The amount payable depends on the percentage of "whole person impairment". Second, by virtue of s 138AB(2) of the Act, the worker was precluded from commencing proceedings for damages in respect of his injury unless the "threshold requirement" was met. By virtue of s 138AB(3)(b), that requirement was met if the Tribunal determined that the degree of his permanent impairment resulting from the injury was "not less than 20% of the whole person".
The worker had sought an assessment of his whole person impairment for the purposes of both s 71 and s 138AB. The effects of the Tribunal's decision were that he was entitled to have his lump sum compensation assessed with his PTSD being taken into account, and that he was entitled to bring an action for damages for negligence in respect of his accident.
The employer contends that the worker's PTSD should not have been taken into account by the learned Chief Commissioner in assessing the degree of permanent impairment. It relies on s 72(2)(a) of the Act, which provides as follows:
"(2) In assessing a degree of impairment of an injury –
(a) regard is not to be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, the physical injury …".
The evidence clearly established that the worker had never suffered from PTSD before the accident in July 2012, but that his PTSD symptoms began to emerge during a period of inactivity following that accident. Prior to that accident, he had been exposed to a number of traumatic incidents in the course of his work as a firefighter. Two psychiatrists gave evidence before the Tribunal – Dr Evenhuis for the employer, and Dr Sale for the worker. Dr Evenhuis opined that the worker's PTSD was a consequence of exposure to the earlier events. In one of his reports he said this:
"Mr Benefield's underlying Post-Traumatic Stress Disorder is a consequence of his exposure to multiple traumatic events during his employment with Tasmania Fire Service. His physical injury resulted in a deterioration in his mood and a decrease in his psychological resilience such that post-traumatic symptoms began to surface. Mr Benefield's mood difficulties were perpetuated by his loss of function his frustration with the Worker's Compensation process and his ongoing experience of pain. Symptoms of anxiety became more problematic as Mr Benefield's overall condition deteriorated, he became more irritable, and social situations became more difficult for him."
Similarly, Dr Sale's opinion was that the PTSD symptoms were not a direct effect of the July 2012 accident; that that injury caused the release of underlying post-traumatic psychopathology; that the worker had previously not allowed potentially distressing memories to intrude into the forefront of his mind; and that his accident resulted in him being less able to keep busy and active, and therefore less able to distract from troubling memories.
On the basis of evidence from the worker and the two psychiatrists, the learned Chief Commissioner made a finding – one not challenged in this appeal – that the PTSD "was not merely a psychiatric effect flowing from or resulting from the physical injury".
At the conclusion of his reasons, the learned Chief Commissioner said the following:
"30   … It is clear that whilst sitting at home after this injury and ruminating about factors involved in his work as a firefighter, the PTSD became unmasked, this occurred during a period where he was idle and unable to engage in such things as employment, recreational activities, fitness activities and social activities. It was this period of forced inactivity that allowed the PTSD to come to the surface and develop to a diagnostic level. Dr Sale says that post injury he was unable to engage in the mitigating environments such as fitness and the esprit de corps of his work environment that allowed this condition to development to a diagnostic level. Dr Sale also opined (and was not challenged as to this) that the PTSD may have developed as it did due to some form of concussive injury in the work incident, this is clearly suggestive of a primary condition. The PTSD clearly has its own separate causative circumstances from the physical injury, and it was not merely a psychiatric effect flowing from or resulting from the physical injury. It became problematic following the physical injury as the worker found himself in changed circumstances that meant that his ability to manage intrusive thoughts of traumatic events was not available to him. The Tribunal determines that the PTSD did not arise as a consequence of or secondary to the physical injury suffered in July 2012.
31    Accordingly, in relation to the various referrals it shall be ordered as follows:
·     1144/2015 (s71 and 138AB) - It is ordered that the worker has suffered a whole person impairment of 5% in respect of his physical injury and 17% in respect of his psychiatric injury. Further, the Tribunal determines that the worker has suffered a permanent impairment of not less than 20% of the whole person."
There are two important points to be made in relation to the passage quoted from [30]:
· The learned Chief Commissioner made a mistake about the evidence. Dr Sale did not opine "that the PTSD may have developed as it did due to some form of concussive injury in the work incident". He stated in one of his reports that it had been his view that the worker's psychiatric problems "reflected a primary condition, a direct result of the blow to the head". Under cross-examination he explained that he was referring to "an injury which causes minor but distinct impairment to brain function for a period" as a possibility. However the evidence established that the worker had not suffered any sort of brain injury.
· More significantly, in the passage quoted, the learned Chief Commissioner addressed only the question of whether the PTSD arose, as a psychiatric injury, as a consequence of, or secondary to, the worker's physical injury. He did not address the question whether the worker's psychiatric or psychological impairment or symptoms, as distinct from the disorder itself, arose as a consequence of, or secondary to, the physical injury. He therefore did not address all of the issues that s 72(2)(a) required him to address.
By virtue of s 63(1) of the Act, an appeal from the Tribunal to this Court may be brought only in relation to a point of law. The learned Chief Commissioner correctly identified that he needed to consider the application of s 72(2)(a), and correctly considered whether the worker's "psychiatric or psychological injury" – his PTSD – arose "as a consequence of, or secondary to, the physical injury". However he erred in law by making no findings as to whether the worker's psychiatric or psychological "impairment or symptoms" arose as a consequence of, or secondary to, the physical injury.
The employer contends that only one finding was available to the learned Chief Commissioner as to that issue, namely that the impairment and symptoms did arise as a consequence of, or secondary to, the physical injury. I agree with that contention. All of the evidence relevant to that issue supported that contention. There was no evidence to the contrary.
The learned Chief Commissioner made relevant findings of fact about psychiatric impairment and symptoms in the passage I have quoted from his reasons above. Those findings can be summarised as follows:
·     "The PTSD clearly had its own separate causative circumstances from the physical injury."
·     After the injury, "the PTSD became unmasked".
·     The "period of forced inactivity … allowed the PTSD to come to the surface and develop to a diagnostic level".
·     The worker "found himself in changed circumstances that meant that his ability to manage intrusive thoughts of traumatic events was not available to him".
Having regard to those findings of fact, and the opinions of the psychiatrists as to the reasons for the onset of PTSD symptoms, the only finding of fact open to the learned Chief Commissioner was one that all the worker's psychiatric or psychological symptoms, and therefore his psychiatric or psychological impairment, arose as a consequence of his physical injury.
It follows that, in assessing the degree of impairment of the 17 July 2012 injury, s 72(2)(a) required the worker's PTSD to be ignored.
It follows that the appeal must succeed in relation to the determination concerning ss 71 and 138AB. There is no need for me to remit that referral to the Tribunal for re-assessment. The appropriate course is for me to vary that determination to one assessing the worker's whole person impairment to be 5%, based on his physical injury alone.

Weekly payments

Before the accident, the worker was employed as a leading firefighter. As a result of his physical injuries, he was unable to return to firefighting work. He returned to work, performing other duties, in August 2013. The employer provided him with work in the bushfire planning and policy area. He did that work until 3 September 2015, but then ceased. On that day Dr Francis, a rheumatologist, provided a medical certificate that said he was incapacitated for work. He said in the certificate that his current symptoms were "Escalating neck pain & significant mood issues" and that his diagnoses were "Neck pain" and "Mood disturbance". The employer thereafter made weekly payments of compensation. It subsequently lodged a referral to the Tribunal under s 88 of the Act, seeking a determination that it was no longer liable to make weekly payments. It contended that the worker, though partially incapacitated, was able to earn an income in the employment that it had been providing to him before 3 September 2015, and that the amount he was able to earn in that employment was sufficient for him not to be entitled to any weekly payments.
The onus of proving that the worker ceased to be entitled to the payment of weekly compensation lay on the employer by virtue of s 49(2)(b) of the Act.
A partially incapacitated worker is usually entitled to weekly payments of compensation pursuant to s 69 of the Act. The relevant provisions in that section read as follows:
"(1) Subject to this section, where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by a medical practitioner or accredited person, the compensation payable to him under this Act is —
(a) in the case of the total incapacity of the worker for work, weekly payments equal to —
(i)the normal weekly earnings of the worker; or
(ii)the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity —
whichever is the greater; or
(b) in the case of the partial incapacity of the worker for work, weekly payments for the period of that incapacity equal to the difference between the worker's weekly payment calculated in accordance with paragraph (a) and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity.
…
(4) The foregoing provisions of this section have effect subject to the following provisions of this subsection:
(a) …
(b) when the question of the amount that a worker is earning or would be able to earn arises, if it appears to the Tribunal that, because of the injury that the worker has suffered (including the physical disfigurement of the worker) he is, or will be, unable to obtain employment or to remain in reasonably regular employment, the Tribunal may decide that the worker is incapacitated by the injury, either totally or partially and either permanently or temporarily, as the circumstances of the case require, and, on the Tribunal so deciding, compensation is payable to the worker in accordance with this Division;
(c) where a worker —
(i)has so far recovered from an injury suffered by him as to be fit for employment (but only for employment of a more limited kind than the employment in which he was engaged before the date when he suffered the injury); and
(ii)satisfies the Tribunal that he has taken all reasonable steps to obtain, and has failed to obtain, employment of a kind referred to in subparagraph (i), and that his failure to obtain that employment is a consequence wholly or mainly of the injury (including the physical disfigurement) of the worker —
the Tribunal may, notwithstanding any other provision of this Act or any earlier determination of the Tribunal under this Act, or any order, award, determination, or decision made by a judge under the repealed Act, in respect of that worker, determine that his incapacity shall continue to be treated as total incapacity for such period and subject to such conditions as the Tribunal thinks fit and, on the making of the determination, compensation is payable to the worker in accordance with this Division."
There was evidence that worker contacted the employer and asked to return to work; that the employer took him back as a supernumerary; that initially there was no plan as to what he was to do; that he had no support from his supervisor; that extended periods sitting at a computer caused him difficulty; that he was given a computer but not appropriate training; that non-firefighting jobs were not available to him because the employer required applicants for those positions to be fit to fight fires; that there was no money in the employer's budget to fund any position that he occupied after his return to work; and that the required funding came from the workers compensation insurer.
In his reasons at [12], the learned Chief Commissioner made a number of findings, and reached a conclusion adverse to the employer in relation to this issue. He said the following:
"12 The evidence does not establish that there was a funded position made available by the employer that the worker could have continued to be engaged in. He became unable to continue in the supernumerary position due to the uncertainty of his future and how this negatively impacted upon his mental health. The employer's case was limited to submitting that this supernumerary position was suitable employment in which the worker was capable of earning income. However, no substantive position had been created nor was the position funded by the employer. There is no evidence that the position could be created or that the insurer would continue to fund the position. Mr Collins [the employer's Manager, Bushfire Planning and Policy], in cross examination, described that there were two recognised positions within his division and that they were both currently occupied. At the current time he also stated that there was no position for the worker in his division and no budget to support such a position. Mr Collins said it would be for the employer to create the position or otherwise offer an ongoing position on the supernumerary basis. There is no evidence that the employer would create such a position or financially support such a position. The Tribunal is satisfied that it was the frustrations associated with the worker's inability to establish any clear pathway to a durable return to suitable employment with the employer that led to the exacerbation of his symptoms, in particular as to his mental condition that led to him being certified as totally incapacitated in late 2015. The deterioration in his work capacity and his mental state was described by the worker and supported by evidence of Mr Collins and Ms Coulter [an occupational therapist]. No offer of ongoing employer funded employment was ever made by the employer. Save for this supernumerary position, no evidence was provided as to the employment capacity of the worker in employment outside of the Tasmania Fire Service. The Tribunal is not satisfied on the evidence that at present there is an identified residual earning capacity.

In a proof of evidence that was tendered before the Tribunal, Mr Collins said that the worker's contribution in the supernumerary position was valuable and meaningful, and that that would still be the case if he were still working in that position. He said that the workload meant that work continued to be available for him after he ceased work. In his evidence-in-chief he said he understood that work would be available for the worker if he came back. However the following exchange occurred during his cross-examination:
"So would it be fair to say that if Mr Benefield tomorrow said, 'I want to come back to doing the job I was doing with you,' the starting point would be there's actually no job there right now for him to walk into ?……Yes.
There's no budget to find it?……Yes.
And the creation of such a position has not been approved?……Correct.
So for all intents and purposes, absent the willingness of the Tasmanian Fire Service to make an exception for Mr Benefield there's not a job there for him to walk into?……Correct."
There was evidence that in the opinion of Ms Coulter, the occupational therapist, the redeployment opportunities for the worker with other employers were poor as he had few transferable skills.
In my view it was open to the learned Chief Commissioner to conclude that, ever since 3 September 2015, the worker had been partially incapacitated for work because of mental health problems that arose as a consequence of his physical injury, and to conclude that the employer had failed to establish on the balance of probabilities that the worker was capable of earning anything after that date, having regard to his lack of transferable work skills, and the unavailability of any funded position in the employer's workforce.
The notice of appeal contains four grounds relating to the weekly payments issue, grounds 4 to 7. For the reasons set out below, I have decided that each of those grounds must fail.

Ground 4

Ground 4 asserts, in substance, that the Tribunal failed to identify and properly address the questions that needed to be addressed under s 69(1)(b) of the Act. That ground has no merit. The learned Chief Commissioner clearly accepted that the worker was partially incapacitated, considered the evidence as to what the worker was able to earn, and was not satisfied on the balance of probabilities that he was able to earn anything as from the date he ceased work.

Ground 5

Ground 5 attacks seven of the learned Chief Commissioner's findings of fact on the basis that those findings were of no relevance to the questions that needed to be addressed under s 69(1)(b). I need not list all of those findings. Most of them relate to matters relevant to the state of the worker's mental health when he ceased work, and are therefore relevant to both his capacity for work and the question of what he was able to earn. The others relate to his prospects of returning to work either for the employer or some other employer. All of the impugned findings related to relevant matters.

Ground 6

I need to set this ground out in full in order to debunk it. It reads as follows:
"6 The Tribunal erred in law in that it gave primacy or undue weight to the supernumerary and non-permanent character of the employment made available to the worker and in doing so failed to have any regard to the evidence that established that the subject employment met all of the requirements of pars (a) to (e) in s 143M(5) of the Act and did not fall within the proscriptions imposed by paragraphs (f) and (g) of that subsection.
In taking that approach the Tribunal ignored the objects of the Act set out in section 2A, pars (a) and (f) and the manifestation of those objects in the provisions of sections 139 and 143M and the basic premises that underpin the quantification of what is payable by way of weekly compensation in the case of partial incapacity in accordance with s 69(1)(b)."
The first assertion in this ground is that the Tribunal gave "primacy or undue weight" to certain matters. Giving too much weight to any factor or group of factors does not constitute an error of law unless the fact-finder goes so far as to apply a wrong principle. That cannot be said here.
It is clear from the wording of s 69(1)(b) that, in assessing the amount that a worker "would be able to earn", possible earnings from temporary work have the same status as possible earnings from employment in a permanent position. This ground seems to suggest that the learned Chief Commissioner made some sort of mistake as to the status of earnings from temporary work. However there is nothing in his reasons to suggest that he made any such error.
Another assertion in this ground concerns s 143M(5) of the Act. That subsection reads as follows:
"(5) For the purposes of this Part, suitable alternative duties in relation to a worker are those duties for which the worker is suited, having regard to the following:
(a) the nature of the worker's incapacity and pre-injury employment;
(b) the worker's age, education, skills and work experience;
(c) the worker's place of residence;
(d) any suitable duties for which the worker has received rehabilitation training;
(e) any other relevant circumstances –
but do not include —
(f) duties that are merely of a token nature or do not involve useful work, having regard to the employer's trade or business; or
(g) duties that are demeaning in nature, having regard to paragraphs (a) and (b) and to the worker's other employment prospects."
It seems that the author of ground 6 has taken s 143M(5) out of context. Section 143M is in Pt XI of the Act, which is entitled "Injury Management". Section 143M(1) imposes a duty on employers to ensure that workers who have been injured are given "suitable alternative duties to perform". Failure to do that amounts to an offence punishable by a fine. It is for the purpose of s 143M(1) and other provisions in Pt XI, not s 69, that s 143M(5) defines "suitable alternative duties".
It may very well be an incontrovertible fact that the employment that was made available to the worker as a result of funding from the insurer amounted to "suitable alternative duties" as defined by s 143M(5), but that is not to the point. The learned Chief Commissioner was not satisfied that such duties were available to the worker after the original arrangement relating to them came to an end on 3 September 2015. That finding was open to him.
The Tribunal is never required to take on an inquisitorial role. Section 57(1) of the Act requires the Tribunal to resolve matters "on such evidence as is placed before it". The learned Chief Commissioner was not required to evaluate the suitability of the supernumerary duties when he was not satisfied that there would be a supernumerary position for the worker to return to.
Next, this ground suggests that the learned Chief Commissioner made errors in relation to ss 2A, 139 and 143M of the Act. This limb of ground 6 received very little attention in the written and oral submissions of counsel for the employer. It seems to suggest that the learned Chief Commissioner did not apply the correct principles in relation to rehabilitation.
Section 2A sets out the objects of the Act. It reads as follows:
"The objects of this Act are to establish a rehabilitation and compensation scheme for workplace injuries that —
(a)provides for the prompt and effective management of workplace injuries in a manner that promotes and assists the return to work of injured workers as soon as possible; and
(b)provides fair and appropriate compensation to workers and their dependants for workplace injuries; and
(c)assists in securing the health, safety and welfare of workers and in reducing the incidence of workplace injuries; and
(d)provides an effective and economical mechanism for resolving disputes relating to the treatment and management of, and compensation in relation to, workplace injuries; and
(e)is efficiently and effectively administered; and
(f)is fair, affordable, efficient and effective."
It would seem from the wording of this limb of ground 6 that s 2A is asserted to be relevant only in relation to ss 139, 143M, and 69(1)(b).
Part XI of the Act, entitled "Injury Management", begins with s 139, which sets out the purposes and principles relevant to its provisions. Essentially they relate to the desirability of rehabilitation. I need not set out the section.
The evidence in this case established that the employer did remarkably little to facilitate the worker's return to work in suitable duties following his injury, to the point of adhering to a policy that employees had to be fit to fight fires even when employed in positions that did not require any firefighting.
As to s 69(1)(b), it is quite clear that, in assessing the amount that a worker "would be able to earn", possible earnings from temporary work must be taken into account. But there is nothing in the reasons of the learned Chief Commissioner to suggest that he made any error as to the significance of possible earnings in temporary employment. There is no merit at all in ground 6.

Ground 7

This ground reads as follows:
"7 The findings (at [12]) that exacerbation of the worker's 'mental condition … led to him being certified as totally incapacitated in late 2015' and that the worker 'became unable to continue in the supernumerary position due to the uncertainty of his future and how this negatively impacted upon his mental heath' were findings that were not open to the Tribunal on the evidence.
The only finding that was reasonably open to the Tribunal was a finding that throughout the period from 3 September 2015 to the date of the hearing the worker was and remained partially incapacitated for work and, more specifically, fit for the employment that was made available to him by the employer."
I disagree with both paragraphs of this ground. There was evidence from the worker, Dr Francis, and even Mr Collins that supported the finding at [12]. It follows that the finding suggested in the second paragraph of this ground, if it was open at all, was not the only finding that was reasonably open. In substance this ground is an attempt to assert errors in fact-finding. However there is no error of law in making a wrong finding of fact: Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J at 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 356.

Conclusion

For the reasons stated, this appeal must succeed in relation to the whole person impairment issue, but fail in relation to the weekly payments issue. The learned Chief Commissioner was dealing with separate referrals in relation to each of the issues before him. I will therefore make no order in relation to the weekly payments issue. My orders are as follows:
1 The appeal is allowed.
2 The determination of the Tribunal in relation to referral 1144/2015 is varied to read, "It is ordered that the worker has suffered a whole person impairment of 5% in respect of his physical injury alone. Further, it is determined that the worker has not suffered a permanent impairment of not less than 20% of the whole person."