The Department of Primary Industries v Butler
[2009] NSWWCCPD 150
•25 November 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | The Department of Primary Industries v Butler [2009] NSWWCCPD 150 | ||||
| APPELLANT: | The Department of Primary Industries | ||||
| RESPONDENT: | Barbara Joan Butler | ||||
| INSURER: | Allianz Australia Insurance Limited | ||||
| FILE NUMBER: | A1-4898/09 | ||||
| ARBITRATOR: | Mr R Whitelaw | ||||
| DATE OF ARBITRATOR’S DECISION: | 18 August 2009 | ||||
| DATE OF APPEAL DECISION: | 25 November 2009 | ||||
| SUBJECT MATTER OF DECISION: | Failure to give reasons | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Rankin Nathan Lawyers | |||
| Respondent: | Ticli Blaxland Lawyers | ||||
| ORDERS MADE ON APPEAL: | Paragraph one of the Arbitrator’s determination of 18 August 2009 is amended to delete 8 December 2008 and to insert 13 January 2009. For the reasons given in this decision, the Arbitrator’s determination is confirmed in all other respects. | ||||
| The appellant employer is to pay the respondent worker’s costs of the appeal. Those costs are assessed at $2,200.00 plus GST. | |||||
BACKGROUND
The worker, Mrs Butler, alleges that she suffers from a Major Depressive Disorder and Panic Disorder With Agoraphobia as a result of workplace harassment and bullying in the course of her employment with the Department of Primary Industries (‘the Department’) since 1999.
She stopped work in June 2006 and submitted a claim for compensation on 11 July 2006. Her claim was accepted and voluntary compensation payments paid by the Department’s insurer, Allianz Australia Insurance Limited (‘Allianz’), until liability was declined in a letter dated 8 December 2008. As required by the legislation, weekly compensation continued until 12 January 2009.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 24 June 2009, Mrs Butler sought weekly compensation from 8 December 2008 to date and continuing together with an order for the payment of hospital and medical expenses.
In a Reply filed on 15 July 2009, Allianz denied liability on the grounds set out in its notice of 8 December 2008. That notice denied liability on the grounds that:
(a) Mrs Butler was fit for her pre-injury duties and had recovered from any psychological condition experienced in June 2006;
(b) Mrs Butler’s need for medical and related treatment had not resulted from the injury, and
(c) that any continuing symptoms were not related to “any work related incident in June 2006.”
Allianz has never disputed that Mrs Butler sustained a psychological injury in the course of her employment with the Department or that her employment was a substantial contributing factor to that injury.
The Commission listed the matter for conciliation and arbitration on 11 August 2009, when the Arbitrator heard submissions from each side, but took no oral evidence.
In a reserved decision delivered on 18 August 2009, the Arbitrator found in favour of the worker. The Commission issued a Certificate of Determination on 18 August 2009 in the following terms:
“The Commission determines:
1. That the Respondent pay to the Applicant weekly payments of compensation at the maximum statutory rate from 8 December 2008 to date and continuing with credit to be given for payments made.
2. That the Respondent pay the Applicant's reasonable and necessary medical and related expenses pursuant to s60 of the Workers Compensation Act 1987 upon production of receipts or accounts.
3. That the Respondent pay the Applicant's costs as agreed or assessed and that there be a certification for complexity of costs with an uplift of 10% for the Applicant and Respondent.”
In an appeal filed on 15 September 2009, the Department seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTER
Due to a technical malfunction there is no transcript of the arbitration proceedings. Both parties were advised of that fact in a letter from the Commission dated 29 October 2009 and were invited to make submissions in relation to the future conduct of the appeal given the absence of the transcript.
Mrs Butler’s solicitor, Mr Blaxland, responded by letter on 5 November 2009 that, as there had been no oral evidence at the arbitration, the appeal could proceed on the papers unless the Presidential Member allocated to hear the appeal was of the view that an oral hearing and further submissions would be of assistance.
After two follow-up telephone calls from the Commission’s staff, the Department’s solicitor, Mr Russell, replied by letter dated 24 November 2009 that his client did not wish to make any submissions in respect of the matter having regard to the contents of the Commission’s letter of 29 October 2009.
In an email from the Commission to the Department’s solicitor on 25 November 2009, advice was sought as to whether the Department was content for the matter to be re-determined on the basis of the submissions already made. Mr Russell replied by email the same date that “the Department is content with the matter being dealt with upon the existing submissions in light of the unavailability of the transcript.”
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the 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.
THE EVIDENCE
Mrs Butler’s evidence is set out in her statement dated 5 May 2009. She was born in 1955 and completed her schooling at the end of year 10 in 1972. She then completed a TAFE course and started work with the Department of Agriculture (the Department’s predecessor in title) as a typist on 6 September 1973. She progressed to the level of Office Supervisor at the Grafton Research Station and continued in that role until she was medically retired in June 2007. As the Office Supervisor she performed administrative duties and supervised a staff of three to four people.
In 1996 she discovered that a former employee had stolen money from the Department. She notified her manager and a departmental investigation revealed that a substantial sum of money had been stolen. The person concerned was charged with and convicted of embezzlement in 1999 and sentenced to one year in prison. As a consequence, there was a great deal of stress in 1999 and Mrs Butler was off work from July 1999 until February 2000. She sought treatment from her local general practitioner, Dr Bacon, from 1999 and remained on medication from that time until she started seeing a new general practitioner, Dr Kramer, in June 2006.
Notwithstanding that she was back at work full-time from May 2000, she continued to experience a lot of “psychological pressure at work” with workers regularly saying to her “you’re the whistleblower”. As a result, she experienced “increasing psychological problems” that got to a level in 2006 where she sought treatment from Dr Kramer and was referred to a psychologist, Mr McCombie, in July 2006. Since then, she has continued to receive treatment from Dr Kramer and remained on medication prescribed by him. She continued to see Mr McCombie until January 2008 when he believed there was nothing further he could do for her.
At the time of her statement in May 2009, she was taking Lovan, an anti-depressant, Epilim, a mood stabiliser, as well as Zyprexa, an anti-psychotic drug.
She states that she would not be able to cope with any type of work as she is now hypersensitive to any comments made about her and if there were “even the slightest pressure” she just could not cope. Her work was her life and she enjoyed it up until 1999. She now finds it difficult to leave her home and she only does so when it is absolutely necessary to visit her doctors or her sister.
Mrs Butler confirmed that she had read Dr Delaforce’s report of 3 April 2009 and that the information he took from her was accurate and that all other information in his report was accurate to the best of her knowledge and belief.
At the request of Allianz, Ms Dobrowolski, psychologist and rehabilitation consultant, prepared an Initial Assessment Report on 22 January 2007. Ms Dobrowolski took a history of various workplace conflicts that culminated in Mrs Butler ceasing work in June 2006. She also took a history of the fraud that Mrs Butler had previously exposed and that Mrs Butler felt under a lot of stress because some of her co-workers saw her as a “snitch”. After liaising with Dr Kramer, Ms Dobrowolski concluded that Mrs Butler was unfit to participate in any occupational rehabilitation.
The Department arranged for Mrs Butler to be examined by Dr Roberts, consultant psychiatrist for HealthQuest, on 21 March 2007. In her report of 28 March 2007, Dr Roberts stated that Mrs Butler described symptoms consistent with the diagnosis of Adjustment Disorder with mixed anxiety and depression. Her symptoms included chronic low mood, very marked anxiety and very poor concentration and memory, feeling confused and disorganised, feeling helpless and hopeless, poor sleep, variable appetite, nausea, diarrhoea, unable to go near the workplace, unable to socialise, and some suicidal thoughts. She also complained of experiencing chronic head and body aches from tension.
Dr Roberts felt it was unlikely that Mrs Butler would recover in the foreseeable future and concluded that she was “permanently unfit for the full range of duties of her substantive position of Office Manager with the Department of Primary Industries in the present location.” She added that Mrs Butler was also unfit for alternative duties with the Department and that her state of unfitness was likely to persist for 12 months or more.
Based on Dr Roberts’ report, the Department advised Mrs Butler of its intention to medically retire her. Mrs Butler appealed against that decision. In a letter dated 18 June 2007 from Dr Gardner, Chairman, HealthQuest Appeals Committee, Mrs Butler was advised that her appeal was unsuccessful. Based on all the medical material available, it was determined that she was unfit to complete all inherent requirements of her position.
Dr Delaforce, psychiatrist, examined Mrs Butler at the request of her solicitor for medico-legal purposes on 20 May 2008. He also conducted a separate interview with her husband. In his report of 3 June 2008, Dr Delaforce recorded a detailed history of Mrs Butler’s employment and social history. In particular, he noted that, after the former employee was convicted of embezzlement, Mrs Butler was repeatedly targeted by some of the scientists and technical staff as a “whistle-blower”.
Mrs Butler felt isolated and excluded and that she was being victimised for having reported the missing money. Dr Delaforce also recorded that from 2003 Mrs Butler had increasing problems with the scientists and technicians. In 2005, six scientists lodged grievance complaints against Mrs Butler and her manager. Following advice, Mrs Butler lodged counter complaints against the scientists. These complaints culminated in six mediation meetings that failed to permanently resolve the issues causing conflict and distress.
When Dr Delaforce asked Mrs Butler to sum up what she felt her Grafton Research Station work had done to her, she replied:
“It’s destroyed me. It’s destroyed my confidence. My attitude to people. I don’t trust people. I don’t want to mix with people. I’ve been a bit of a recluse. I’ve lost confidence… It’s destroyed my life, my trust. I don’t have the same enjoyment about anything… to the point I don’t want to live anymore in this sad, sad state.”
Mrs Butler commenced on anti-depressant medication in 1999 and has continued on it to the present time. Increasingly from 2003, her mental health deteriorated and was worse in 2006. Since she ceased work there had been “virtually no improvement.” Dr Delaforce added:
“She reported her current symptoms as follows:
·Having very little joy
·Feeling down
·Feeling sick of feeling sad
·Not wanting to live
·Suicidal
·Believing having a terminal illness would be a welcome relief
·Feeling she is not much use to her family
·‘I feel like I am just wasting away’
·‘I wonder why I am here’
·‘I am just wasting space’
·Lonely
·Worthless
·Avoiding housework”
In addition, Dr Delaforce noted that Mrs Butler experienced the following symptoms since June 2006:
“Sudden and unexpected panic symptoms – shakes, palpitations, shortness of breath, chest tightness, hot flushes, nausea, loss of control, and sometimes feeling dizzy. Also since then she has experienced an unreasonably strong fear of crowds, shops, and public places that she would avoid.”
Dr Delaforce reviewed a number of documents, including reports from Mr McCombie, Dr Kramer, and Dr Walker, a psychiatrist qualified by Allianz in or about August 2007. Mr McCombie diagnosed an adjustment disorder with mixed anxiety and depressed mood. Dr Walker diagnosed major depressive disorder, generalised anxiety disorder, panic disorder with agoraphobia. Dr Walker added that Mrs Butler’s employment with the Department was a substantial contributing factor to those psychological conditions.
Dr Delaforce diagnosed Mrs Butler to be suffering from a Major Depressive Disorder, Single Episode, Moderate, Chronic and Panic Disorder with Agoraphobia, Mild. He felt that her employment with the Department substantially contributed to the onset and continuation of her condition.
Dr Kramer reported to Allianz on 19 October 2008 that he did not agree with a report obtained by the insurer from Dr Lowy, clinical psychologist, that Mrs Butler was fit for her pre-injury duties. In Dr Kramer’s opinion, Mrs Butler was still unfit for any type of work. Her symptoms included “disturbed sleep, anhedonia, reduced libido, constant ruminations, despair, and anorexia.” He did not feel that Dr Lowy had drawn accurate or relevant conclusions based on a single contact with Mrs Butler on a very rushed trip to Sydney where the timeframes for her flights and appointments were “unrealistically tight.” Dr Kramer also provided Mrs Butler with several WorkCover certificates between February 2008 and April 2009 declaring her unfit until 1 September 2009 because of “adjustment disorder/depression”.
Dr Delaforce reviewed Mrs Butler on 2 March 2009 and prepared a further report on 3 April 2009 after again interviewing her for over two hours and separately interviewing her husband. Mrs Butler had not been in employment, nor looking for employment. She said that she did not believe she could last in the workplace. Since February 2009 she had complied with a request from Clarence Community Programs to voluntarily teach intellectually disabled people basic beading techniques, such as making jewellery. She found that activity very stressful and she had difficulty co-ordinating what she was doing and felt so anxious that one of the other workers asked if she was all right. She felt she was unable to continue with the activity because it was too difficult.
Dr Delaforce confirmed that Mrs Butler’s symptoms were the same or maybe worse than they had been at the time of his first assessment. Mr Butler reported that his wife’s main problem was being withdrawn from others and very moody. He said that his wife was “broken” following the interview with Dr Lowy and she said that she had problems with Dr Lowy’s attitude, including the doctor cutting her off from speaking.
Dr Delaforce concluded that Mrs Butler was unable to undertake any employment of any nature for any number of hours a week.
The Department relies on reports from Dr Lowy, and Dr Lee, consultant medico-legal psychiatrist.
Dr Lee examined and reported on Mrs Butler on 9 April 2008. He found her to present as frustrated, angry and hurt. She felt she was made a scapegoat by the Department who she feels should have disciplined a group of six people who made false complaints against her. This made her lose trust in people and to lose motivation in working for anyone else.
Dr Lee thought her presentation was not consistent with a depressive illness. She described anger, resentment and injustice. This made her withdraw from work and put her energies into beading, which she found creative and a solace. Dr Lee did not believe that Mrs Butler suffers from a major depressive disorder but accepted the lesser severity diagnosis of dysthymic disorder. He also thought that she has obsessive-compulsive personality traits, which may explain why she has become fixated on the issue of injustice. He found it difficult to say whether she could be certified for pre-injury duties with another employer. Though Mrs Butler reported that she could not concentrate or trust people, her presentation was not someone who could not concentrate or relate provided she felt “understood”. He assessed he to have a psychiatric impairment of 5 per cent.
In a supplementary report dated 1 July 2008, Dr Lee stated that Mrs Butler was not still suffering from a work related condition. She presented as frustrated, angry and hurt, but that was not a psychiatric disorder.
In her report of 29 September 2008, Dr Lowy took a remarkably similar history to that recorded by Dr Delaforce. In particular, she recorded that Mrs Butler could not stand being with people or pressure of any sort. She could not see herself working because she could not make decisions. She did not like going out shopping or going out in crowds. Dr Lowy did not consider Mrs Butler’s symptoms to be consistent with a major depressive disorder and, as she was compliant with her anti-depressant medication, Dr Lowy expected her symptoms would have gone into remission, or at least be alleviated. She concluded that Mrs Butler’s psychological condition would have resolved given that she had a good work history of 33 years, is in good physical health, her husband is supportive and her children are independent and in good health.
In Dr Lowy’s opinion, any claimed symptoms were not related to any work-related incident on 16 June 2006. Any psychological symptoms would be related to constitutional factors, including secondary gain factors. Dr Lowy felt that Mrs Butler could be “certified for pre-injury duties with another employer.” She added, however, that as Mrs Butler had not worked for two and a half years, her return to work would be based on a graduated return to work schedule. Mrs Butler’s perceived negative one-off experience in June 2006 should not, in Dr Lowy’s opinion, under normal circumstances be regarded as a cause for permanent mistrust of people. Her reluctance to return to paid work was consistent with a lack of motivation because she did not need to work for financial reasons.
Dr Lowy prepared a supplementary report on 12 November 2008 in which she stated that as Mrs Butler had been away from work since June 2006, she felt that any work related adjustment disorder would have remitted. Therefore, Dr Roberts’ assessment did not make Dr Lowy change her views.
Dr Lowy prepared a further supplementary report on 20 July 2009 in which she reviewed several other medical reports dealing with Mrs Butler’s condition, including Dr Delaforce’s report of 28 August 2008 in which he commented on her earlier report. Essentially, she maintained the opinions she expressed in her September 2008 report.
Dr Lee provided a further supplementary report on 22 July 2009 in which he dealt with issues in Dr Delaforce’s report of 28 August 2008 and concluded that he maintained the opinion he previously expressed in his report of April 2008.
THE ARBITRATOR’S REASONS
After briefly reviewing the evidence in his Statement of Reasons (‘Reasons’), the Arbitrator said (at [25] – [27]):
“25. It is difficult for a lay person to follow the differences of opinion set out by Drs Kramer and Delaforce on the one hand and Drs Lowy and Lee on the other.
26. In this instance I tend to favour the opinions of Drs Kramer and Delaforce as Dr Kramer is the treating doctor for the Applicant and Dr Delaforce has spent considerable time with her. It appears to me that he has given a more extensive outline of the Applicant's symptoms.
27. As such, I find that the Applicant is for all intents and purposes totalling [sic] incapacitated given her current treatment and symptoms, particularly the agoraphobia. It may be that she may be able to do some work in another work place as she is certainly qualified for administrative tasks however there is no evidence of a trial having been organised or a vocational assessment report arranged which would assist me in determining this.”
The Arbitrator then concluded that Mrs Butler was entitled to weekly compensation at the maximum statutory rate from 8 December 2008 to date and continuing with credit to be allowed for any payments made by the insurer.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to consider the nature and extent of the injury relied upon by Mrs Butler;
(b) failing to provide sufficient reasons for his decision, and
(c) preferring the evidence of Dr Delaforce.
SUBMISSIONS, DISCUSSION AND FINDINGS
The Department’s challenge to the Arbitrator’s decision is that it fails to provide sufficient or adequate reasons for his conclusion. He made no reference to Mrs Butler’s evidence and acknowledged his difficulty in understanding the respective medical opinions. Though the Arbitrator preferred Dr Kramer’s evidence because of his status as a treating doctor, the Arbitrator did not identify “the substance of that opinion”. Therefore, so it is argued, it is impossible to identify the existence, or test the plausibility of, the Arbitrator’s reasoning.
It is argued that the Arbitrator’s acceptance of Dr Delaforce’s opinion was erroneous because both Dr Delaforce and the employer’s doctors took detailed descriptions of Mrs Butler’s symptoms. In summary, it is submitted that the Arbitrator failed to consider the nature of Mrs Butler’s injury, conceded that he could not untangle the medical issue, and made an unreasoned choice founded upon an arbitrary basis. The Department requests that the Arbitrator’s determination be revoked and an award be entered in its favour.
In my view, the Arbitrator has failed to discharge his obligation to provide adequate reasons in this matter. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.”
The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd & anor [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148, McColl JA said at [69]:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).”
Her Honour’s comments in Hevi-Lift (PNG) Limited v Etherington [2005] NSWCA 42 at [100] are also relevant:
“The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the judge refer to all the evidence, ‘[w]here nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged’: Soulemezis, at 259, per Kirby P.”
The Arbitrator’s reasons do not comply with the standard required by the above authorities. The Arbitrator did not properly consider or analyse the issues presented in the evidence or indicate a proper basis for his conclusion. Saying that he tended to favour the opinions of Drs Kramer and Delaforce because Dr Kramer was the treating doctor and Dr Delaforce had spent considerable time with Mrs Butler, did not deal with the issues thrown up by the evidence. This error requires that the matter be re-determined. As Mrs Butler did not give oral evidence and was not cross-examined, I am in as good a position as an Arbitrator to conduct that re-determination and that is the course I propose to adopt.
The starting point in the re-determination is a consideration of Mrs Butler’s evidence. She is now 53 years of age. She spent the whole of her working career with one employer: initially the Department of Agriculture and then later, due to a name change, the Department of Primary Industries. That fact speaks highly of her dependability and reliability and the Department has tendered no evidence to suggest to the contrary. Nor has the Department tendered any evidence to suggest that her allegations of harassment and bullying were untrue or exaggerated. Her claim was accepted without dispute.
Mrs Butler’s symptoms were considered to be so severe that, after arranging an examination with a consultant psychiatrist, Dr Roberts, the Department medically retired her, no doubt on the basis that Dr Roberts considered her to be permanently unfit for her substantive position or for alternative duties. Her appeal against that decision was unsuccessful.
Voluntary compensation payments eventually ceased on 12 January 2009 on the basis of notice provided by Allianz on 8 December 2008. The reasons given for declining the claim were that Mrs Butler had recovered and/or was no longer incapacitated as a result of her injury. It was stated that Dr Lee’s reports “did not consider that you were continuing to suffer from a work related condition” and that Dr Lowy considered that any psychological condition experienced in June 2006 would have resolved.
The reference to Dr Lee’s reports in the notice declining liability is incomplete. Dr Lee did not initially conclude that Mrs Butler was no longer suffering from a work related condition. He accepted that she was suffering from “the lesser severity diagnosis of dysthymic disorder”. He also assessed her to have a psychiatric impairment of 5 per cent with no deduction for her pre-existing obsessive traits. The only inference from Dr Lee’s first report is that he believed that the 5 per cent psychiatric impairment had resulted from the injury Mrs Butler received in the course of her employment with the Department. Dr Lee did not declare Mrs Butler fit for her pre-injury duties, but said it was “difficult to precisely say whether she can be certified for pre-injury duties with another employer.” This report provided no basis for the termination of voluntary weekly compensation.
Dr Lee attempted to retrieve the position in his supplementary report of 1 July 2008 where he said that he did not feel that Mrs Butler was still suffering from a work related condition. This statement is completely contrary to the conclusions reached in his first report and yet he offers no explanation for the inconsistency. In these circumstances, Dr Lee’s opinions are of little persuasive value and I do not accept them.
Dr Lee points out in his supplementary report of 22 July 2009 that merely obtaining “reports of symptoms”, as Dr Delaforce did, does not explain whether they are valid, even if the examiner checks for their presence. He is also criticises Dr Delaforce for not attempting to clarify if the complaints made about Mrs Butler by co-workers were unfounded, as she claimed. Neither of Dr Lee’s points undermines Dr Delaforce’s evidence. I accept that Mrs Butler has the symptoms recorded by Dr Delaforce and that they were and are disabling. Whether the complaints by Mrs Butler’s co-workers were unfounded is not in issue. The Department has never disputed the circumstances in which Mrs Butler’s injury arose and, in any event, the question is not whether the complaints were unfounded but whether Mrs Butler believed them to be unfounded (The State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [55] (‘Chemler’)). Dr Lee’s supplementary report is concerned mainly with defending his assessment of Mrs Butler and criticising Dr Delaforce’s reports and conclusions. He made no effort to explain the change of opinion between his first and second reports.
Dr Lowy’s conclusions seem to be based on her assertion that Mrs Butler’s symptoms were “vague, non-specific symptoms” and therefore not consistent with a major depressive disorder. That conclusion is inconsistent with the very specific and detailed symptoms listed by Dr Delaforce in both of his reports and substantially repeated in Dr Lowy’s report. Those symptoms are confirmed in Mrs Butler’s statement where she expressly acknowledged the accuracy of Dr Delaforce’s report of 3 April 2009. They are also corroborated, in part, by the history Dr Delaforce took from Mr Butler. A history of symptoms recorded in a medical report is evidence of the fact (Papercoaters Pty Ltd v Jessop [2009] NSWCA 1 at [42]). Those symptoms have been listed above at [32] and I have no hesitation in accepting them to be not only specific but also genuine. It was on the basis of these symptoms that Dr Delaforce made his diagnosis that Mrs Butler suffers from a major depressive disorder and a panic disorder with agoraphobia. That diagnosis is consistent with the diagnosis reached by Dr Walker, psychiatrist retained by the Department in August 2007 (see [34] above). It is also not inconsistent with the certifications by Dr Kramer through 2008 and 2009 that Mrs Butler suffers from “adjustment disorder/depression”, and with Dr Roberts’ clear and unequivocal opinion in March 2007.
Dr Delaforce noted that Mrs Butler attempted to reduce her medication in 2002, but could not do so without a recurrence of symptoms (page 12 of his report of 3 April 2009). He considered that fact to be “highly relevant” and he noted that Dr Lowy’s report gave no indication that she understood the significance of that evidence. Dr Delaforce further explained that the history suggested that the anti-depressant medication in 2002 was effective and needed. However, that Mrs Butler had to have her medication and dosage changed in 2008 indicated “much difficulty gaining improvement from psychiatric medication”. This evidence, which I accept, demonstrates the fallacy in Dr Lowy’s assertion that if Mrs Butler had been compliant with her prescribed anti-depressant medication her symptoms would either have remitted or decreased to the extent that they would no longer satisfy criteria for a major depressive disorder.
The fundamental flaw in Dr Lowy’s report is her assertion that any psychological condition experienced by Mrs Butler in June 2006 would by now have resolved given that she had a good work history, good physical health, a supportive husband and independent children who are also in good health. Whilst a favourable outcome often occurs in cases of this kind, as Dr Delaforce points out, that does not always occur and has not occurred in this case. In light of Mrs Butler’s consistent complaints of significant and disabling symptoms, which complaints I accept as being genuine, Dr Lowy’s conclusions are untenable and I do not accept them.
To the extent that Dr Lowy suggests that Mrs Butler may be a vulnerable personality who does not cope well with life’s stressors, that does not provide a valid basis for denying liability. Employers must take their employees as they find them (Chemler at [40]). Dr Lowy’s evidence has ignored or failed to give proper weight to the fact that Mrs Butler worked effectively and successfully for the Department for almost three decades prior to the development of the symptoms in 1999, which deteriorated until she ceased work in 2006. It is conceded that those symptoms developed as a result of an injury received in the course of or arising out of her employment and that her employment was a substantial contributing factor to that injury. The symptoms have not abated over time.
The evidence does not support Dr Lowy’s assertion that Mrs Butler’s psychological symptoms are related to “constitutional factors including secondary gain factors”. Dr Lowy is firmly of the view that Mrs Butler did not display “features of cluster C personality disorders which include obsessive compulsive disorder.” It is therefore unclear which “constitutional factors” Dr Lowy is referring to. Dr Lowy did not identify the alleged secondary gain factors. If it is suggested that those factors are monetary, that is patently untenable. Mrs Butler’s salary with the Department was significantly higher than any compensation payments she may recover in the current proceedings. Her outstanding work record of over 30 years with one employer also testifies to her genuine and responsible attitude. I accept her evidence that her work was her life and that she enjoyed it. I do not accept that she is motivated by secondary gain.
I have found Dr Lowy’s evidence to be unconvincing. Her supplementary report of 20 July 2009 merely defends her general conduct of a medico-legal assessment and stands by the opinions expressed in her earlier report. For the reasons outlined, I do not accept Dr Lowy’s conclusions.
Given Mrs Butler’s consistent history, her extensive symptoms, which are partly corroborated by her husband, and which I accept as being accurate and genuine, her excellent work record, the supportive evidence from Dr Kramer and Dr Roberts, and the shortcomings in the evidence from Dr Lee and Dr Lowy, I prefer and accept Dr Delaforce’s evidence.
The evidence of Mrs Butler’s fitness for work is in Dr Delaforce’s report of 3 April 2009 (see [39] above). His opinion that she is totally unfit for work is consistent with Dr Kramer’s certificates from 27 February 2008 to 23 April 2009, which cover the period up to 1 September 2009. That evidence is consistent with Mrs Butler’s evidence, which I accept, that she is unable to work because of her continuing psychological symptoms. Though she has not attempted any employment activities since 2006, her attempt to teach intellectually disabled people basic beading techniques, which she felt unable to continue, is a clear indication of the nature and extent of her incapacity. I am comfortably satisfied that Mrs Butler was and is totally unfit for employment as a result of the psychological injury she sustained as a result of harassment and other conduct in the course of her employment with the Department up to 16 June 2006.
CONCLUSION
It follows that, having conducted a review on the merits, I have concluded, for the reasons given in this decision, that the Arbitrator’s conclusions are correct. However, as Mrs Butler was paid weekly compensation up to and including 12 January 2009, her entitlement to compensation commences on 13 January 2009 and that amendment will be made to the Arbitrator’s award. In all other respects, the Arbitrator’s determination is confirmed.
DECISION
Paragraph one of the Arbitrator’s determination of 18 August 2009 is amended to delete 8 December 2008 and to insert 13 January 2009. For the reasons given in this decision, the Arbitrator’s determination is confirmed in all other respects.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal. Those costs are assessed at $2,200.00 plus GST.
Bill Roche
Deputy President
25 November 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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