Thompson v State of New South Wales
[2018] NSWWCCPD 25
•27 June 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Thompson v State of New South Wales [2018] NSWWCCPD 25 | |
| APPELLANT: | Peter Thompson | |
| RESPONDENT: | State of New South Wales | |
| INSURER: | QBE Insurance (Australia) Limited as agent for NSW Self Insurance Corp | |
| FILE NUMBER: | A1–3215/17 | |
| ARBITRATOR: | Mr G Egan | |
| DATE OF ARBITRATOR’S DECISION: | 7 February 2018 | |
| DATE OF APPEAL DECISION: | 27 June 2018 | |
| SUBJECT MATTER OF DECISION: | Clause 3 of Pt 18C of Sch 6 to the Workers Compensation Act1987; determination of amount by which compensation payable is to be reduced; alleged error of fact; application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 | |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | North Coast Compensation Lawyers |
| Respondent: | SMK Lawyers Pty Ltd | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused. | |
INTRODUCTION
Peter Thompson claimed entitlements pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a psychological injury deemed to have occurred on 12 January 2004. There was no issue that Mr Thompson suffered Post Traumatic Stress Disorder (PTSD) as a result of numerous stressors in the course of his employment between 1990 and January 2004.
As the extent of whole person impairment (WPI) was in issue, Mr Thompson was referred to an Approved Medical Specialist (AMS) for assessment. A Medical Assessment Certificate (MAC) was issued by Dr Douglas Andrews, psychiatrist, who assessed the degree of WPI to be 23%.
The only remaining issue was the amount of compensation which was required to be deducted from the lump sum compensation payable under s 66 pursuant to cl 3(2) of Pt 18C of Schedule 6 to the 1987 Act.
The matter proceeded on the basis of written submissions from both parties and was determined ‘on the papers’ pursuant to s 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The Arbitrator issued a Certificate of Determination (COD) on 7 February 2018, finding the reduction in compensation payable for the “previously non-compensable impairment” was 90%.
BACKGROUND
Mr Thompson was employed as a corrective services officer with the State of New South Wales from 1985 until he was medically retired in 2004.
Mr Thompson relied on a number of traumatic incidences occurring from 1990 which impacted his psychological well-being. He first sought psychological treatment in approximately October 2000. Mr Thompson was transferred to permanent night shift (which had less prisoner contact) and it appears he remained performing night shift duties only until his retirement in 2004. His medical retirement occurred as a result of a Health Quest assessment in November 2003. The assessment was initiated by a newly appointed Governor who wanted Mr Thompson to return to full duties and day shifts.
While the deemed date of injury was 12 January 2004, Mr Thompson relied on a significant number of events which pre-dated the legislative changes that were introduced on 1 January 2002 to Div 4 of Pt 3 of the 1987 Act. The amendments made by the Workers Compensation Legislation Amendment Act2001 introduced s 65A of the 1987 Act. Section 65A allows for lump sum entitlements in respect of primary psychological injuries where the assessment of WPI is at least 15%. The 1987 Act was also amended by the Workers Compensation Legislation Further Amendment Act 2001 that introduced Pt 18C of Sch 6 to the 1987 Act, effective from 1 January 2002. Relevantly, subcl (2) of cl 3 of Pt 18C requires a reduction in the compensation payable for any proportion of the permanent impairment that is a previously non-compensable impairment.
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.”
The parties provided written submissions to the Arbitrator and both parties are content to have the appeal determined on the papers. There are no significant legal issues that require determination and the matter is not complex.
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. I am satisfied that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirement as to quantum pursuant to s 352(3) of the 1998 Act has been met.
Time
The COD was issued on 7 February 2018. The Application – Appeal Against Decision of Arbitrator (Appeal) was registered by the Commission on 27 March 2018. The Appeal was therefore filed outside the time prescribed by r 16.2(12) of the Workers Compensation Commission Rules 2011 (the 2011 Rules).
Mr Thompson’s legal representative advises that on the day the COD was issued, he applied to the Workers Compensation Independent Review Office (WIRO) for funding to obtain advice from counsel as to prospects of success of an appeal from the Arbitrator’s decision. He says that on 20 February 2018, he contacted WIRO to ascertain the progress of the application and WIRO approved funding. On 26 February 2018, he sought counsel’s advice, but on 1 March 2018 he was advised that counsel would not be able to provide the advice. On 6, 13 and 22 March 2018 he made further enquiries “from chambers” as to the availability of counsel.
Ultimately on 26 March 2018, he received counsel’s advice as to the prospects of success of an appeal.
Mr Thompson submits that the WIRO delay was unusual, which was compounded by the delay caused by unavailability of counsel to provide the advice. He submits that the delay was reasonable and caused by reliance on third parties. He further submits that “losing the right to seek leave to appeal” would cause immense demonstrable and substantial injustice.
He contends that the advice from counsel (which is not provided to the Commission) confirms there are valid grounds for appeal and the Appeal was only 20 days out of time.
The State of New South Wales concedes that it will suffer no prejudice if time to appeal is extended. It relies on the decision of Deputy President Snell in Lotos Concretors Pty Ltd v Mitchell,[1] in which the Deputy President discussed and applied the principles laid down in Gallo v Dawson[2] and Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd.[3]
[1] [2018] NSWWCCPD 16.
[2] [1990] HCA 30; 64 ALJR 458 (Gallo), 459.
[3] [2014] NSWCA 34, per Basten JA (Beazley P and Leeming JA agreeing), [9].
It also relies on the decision of Deputy President Snell in Erskine v Cozwine Pty Ltd[4] with respect to the consideration of r 16.2(12) of the 2011 Rules and “exceptional circumstances”.
[4] [2018] NSWWCCPD 9 (Erskine), [36].
The State of New South Wales submits that the onus rests with Mr Thompson to establish that exceptional circumstances exist. It submits that a delay in obtaining advice or submissions from counsel is not uncommon or rare and occurs regularly. That, of itself, does not constitute exceptional circumstances (citing Karakurt v Vickson Australia Pty Ltd t/as South Coast Chicken Fillets and Smallgoods).[5]
[5] [2018] NSWWCCPD 3, [48]–[49].
The State of New South Wales submits that the reasons for the delay do not constitute exceptional circumstances and Mr Thompson has failed to discharge the onus of proving exceptional circumstances.
The State of New South Wales acknowledges that establishing exceptional circumstances is but one factor to be considered. The State of New South Wales submits that an order extending the time to appeal should not be made because the Appeal has minimal prospects of success. It relies on its substantive submissions to that effect.
In reply, Mr Thompson submits that the main reason for the delay was the period required to obtain funding from WIRO. He submits that the requirement to obtain funding before lodging an appeal is uncommon, relying on Yacoub v Pilkington (Australia) Ltd[6] at [66] where Campbell JA, (Tobias JA and Handley AJA agreeing) said exceptional circumstances are those that are “out of the ordinary course or unusual, or special, or uncommon.”
[6] [2007] NSWCA 290 (Yacoub).
Further, Mr Thompson contends that the delay in obtaining counsel’s advice, together with the delay in funding, in combination satisfies exceptional circumstances. Mr Thompson again relies on Yacoub at [66], where Campbell JA added:
“Exceptional circumstances may be established by ‘a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional’.”
Mr Thompson relies on Erskine,[7] to submit that an assessment of the prospects of success requires a consideration of the merits of the case. Mr Thompson further relies on the decision of Acting Deputy President Candy in Hrvat v Thiess Pty Ltd and Hachtief AG Australia[8] as authority for the proposition that all that is necessary in an assessment of the prospects of success is to demonstrate a “fairly arguable case”.
[7] Erskine, [43].
[8] [2010] NSWWCCPD 69.
Mr Thompson disputes that the Appeal has minimal prospects of success, relying on his further substantive submissions in reply. He submits that he has a fairly arguable case and that losing the right to appeal would work demonstrable and substantial injustice.
Rule 16.2(12) of the 2011 Rules provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The rule requires me to consider whether “exceptional circumstances” exist. Whether there are exceptional circumstances and whether the party seeking an extension would suffer a demonstrable or substantial injustice if leave were not granted is “a composite expression in the rule to be dealt with within jurisdiction.”[9]
[9] Bryce v Department of Corrective Services [2009] NSWCA 188, [8]–[10] (per Allsop P (as his Honour then was) (Beazley and Giles JJA agreeing).
Mr Thompson’s legal representative was aware of the 28 day limitation on the period to appeal. It is noted that he acted promptly to apply for funding, but there is a lack of any explanation as to why he waited 13 days (almost half the appeal period) before he followed up the application with WIRO. Mr Thompson’s legal representative did not brief counsel for the arbitration and had first hand knowledge of the case that had been run before the Arbitrator. Further, he has not sought to brief counsel on this appeal and has signed the written submissions himself. He has not explained why it is that in these circumstances, he was reliant upon counsel for advice on prospects of success of the appeal. Nor has he explained why he waited until 26 February 2018 (a further 6 days after funding was granted) to attend to briefing counsel for an advice on the prospects of an appeal.
Any application for extension of time must be decided on its own facts and circumstances. In the context of lack of pro-activity on the part of Mr Thompson’s legal representative, the reasons offered by Mr Thompson, in my view, do not constitute exceptional circumstances.
In any event, Mr Thompson must show that a demonstrable or substantial injustice would occur if leave to extend time for the making of the appeal was not granted. I am therefore required to assess the merits of the case in order to assess whether demonstrable or substantial injustice would occur if leave was refused.
Justice McHugh said in Gallo that in considering an extension of time:
“The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. ... This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. ... When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. ... It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted. ... It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.”[10]
[10] Gallo, 459.
I have discussed the merits of the Appeal below. Even if exceptional circumstances existed, the Appeal lacks merit and in the circumstances, it would be inappropriate to exercise the discretion to extend time pursuant to r 16.2(12) of the 2011 Rules. I am of the view there can be no substantial injustice occasioned by a refusal to grant leave.
THE EVIDENCE
Mr Thompson’s evidence
Mr Thompson said that he commenced employment in Corrective Services with the State of New South Wales in 1985. Before commencement, he had not suffered from any psychological or psychiatric complaint, nor had he received treatment for any such condition.
He reported that in 1990 he observed an inmate who dropped a knife in front of him. He reported the incident and, consequently, the prisoners rioted. He further recalled that in about 1991 his brother (also a Corrective Services Officer) was severely injured during a prison breakout. Mr Thompson visited the hospital and was “horrified by the extent of”[11] his brother’s injuries.
[11] Mr Thompson’s statement, [6].
Mr Thompson said he began to feel anxious and fear for his own safety, but had to hide his own feelings while at work. He avoided direct contact with prisoners by trying to work as many night shifts as possible.
In 1997, an inmate committed suicide by hanging himself.
Mr Thompson gave examples (without providing a time frame) of other traumatic incidences, including:
(a) the murder of a fellow prison officer by inmates;
(b) being at the receiving end of threats and verbal aggression from inmates;
(c) being involved in prison riots when shots were fired;
(d) having to deal with self-mutilation by inmates, and
(e) having to give evidence in an inquiry into a death in custody.
Mr Thompson said that he believed the inmates blamed him for the 1990 riots and he felt at risk of retaliation. He feared for his own safety and the safety of his family and friends and that fear continued. He reported becoming more depressed and withdrawn over the years, felt trapped in his job and could see no end to it.
Mr Thompson said he felt that because of his physical limitations he would not be able to defend himself and so he had to hide those limitations from the prisoners.
Mr Thompson said he was able to avoid anxiety by doing night shifts, but the Deputy Governor “felt this was an issue”. As a consequence, in October 2000, Mr Thompson sought treatment from Dr Leo Tsang, psychiatrist, who prescribed Sertraline. He consulted Dr Tsang on many occasions thereafter. At about that time, he was assessed by Health Quest who recommended he remain on night shifts.
In the second half of 2003 a new Governor was appointed to the Correctional Centre. Mr Thompson said he was put under pressure by the Governor to return to full duties and day shifts and in November 2003 was again assessed by Health Quest. As a result, he was medically retired in January 2004. Following retirement, he continued to suffer from psychological symptoms.
The medical evidence
Dr Tsang provided a report dated 6 September 2013.[12] He confirmed he had treated Mr Thompson between October 2000 and August 2004 and again from 2008. The doctor explained that between 2004 and 2008 Mr Thompson was under the care of Dr James J Holmes, psychiatrist, in Kempsey, New South Wales. Dr Tsang reported that Mr Thompson attributed his anxiety symptoms to incidences from 1990, including the incident involving the prisoner with a knife that sparked riots, and two suicides in 1997, one of which was a hanging, that again sparked riots. Dr Tsang reported that Mr Thompson had vivid memories of the turmoil of the riots and resulting fires, and that Mr Thompson believed that the inmates thought he was to blame. He worried about retaliation by ex-inmates and family of the deceased inmates.
[12] Reply to Application to Resolve a Dispute (Reply), pp 73–78.
Dr Tsang also recorded a history of the incident in 1991 when Mr Thompson’s brother was horrendously injured in a gaol break-out attempt and was on life support in the hospital intensive care ward. Mr Thompson told Dr Tsang he had traumatic memories of his brother’s unrecognisable appearance. From that time, Mr Thompson feared for his own safety and was nauseous and anxious about going to work. He avoided direct contact with prisoners by doing as many night shifts as possible. He became increasingly depressed with insomnia and had poor appetite. He felt trapped in his job.
Dr Tsang noted other traumatic events over the years, including a fellow officer being killed by inmates, self-mutilating behaviours by the prisoners, further riots with shots fired, ongoing threats and a death in custody inquiry. He had physical injuries and conditions that he had to hide from the inmates because such weaknesses would make him vulnerable.
Dr Tsang reported he regularly reviewed Mr Thompson, whose mood had improved by December 2000, but suffered residual anxiety. He described that Mr Thompson’s attempt to minimise direct contact with prisoners was “an adaptive survival strategy”.
Dr Tsang recorded that the new Governor appointed in 2003 pressured Mr Thompson to return to full duties and day shifts, which resulted in a Health Quest assessment and medical retirement in January 2004. Dr Tsang said Mr Thompson had reported to him that the medical retirement had “crushed” him.
Dr Tsang provided a brief overview of Mr Thompson’s ongoing physical and psychological difficulties, which included continuing fear of confrontation with ex-inmates who had been involved in the riots. Dr Tsang concluded that the traumatic events occurred over a period of 17 years.
Dr Leonard Lee, psychiatrist, was asked by the then workers compensation insurer (the insurer) to conduct a medicolegal examination and provide a report in 2005. In his report dated 27 October 2005,[13] Dr Lee reported that Mr Thompson responded to the query as to when his psychological symptoms began by saying “[w]ell I can only put it down to a riot in 1991.”
[13] Reply, pp 97–101.
Dr Lee recorded the history that Mr Thompson was in the tower at the time, and had fired his gun at a sandstone wall, which caused the rioting. He had to wait in the tower until someone relieved him, and he was shaking like a leaf. From that time onwards, he tried to take nightshifts as it was less contact with prisoners, although it impacted his family. Mr Thompson corrected the date of the riot to be 1990. He said he was blamed by the prisoners for the riot and was told by one of the executive officers to get out of prison work and stop inflaming the prisoners.
Dr Lee took a history of a further incident in 1997, which was the hanging suicide by an inmate. There were disciplinary charges brought against him for how he handled that incident. It took 18 months to have those proceedings resolved in his favour. Mr Thompson complained that he was transferred to another prison, which was very disorganised. During that period, he was under increased pressure to take a higher, more stressful position and he was criticised for working night shift. This resulted in the Health Quest assessment in 2000, which reportedly recommended a three-month trial of further night shifts.
Dr Lee reported that Mr Thompson remained on night shift for the following three years. He said Mr Thompson reported that he was happier doing night shift because there was no prisoner contact. He did not expect that he would be medically retired, and he admitted he missed being at work. After prompting, Mr Thompson told Dr Lee about his brother being seriously injured in 1991.
Dr Brian Parsonage, psychiatrist, was also asked to examine Mr Thompson and provide a report to the insurer in 2005 and again in 2012.
In the first report (dated 21 September 2006),[14] Dr Parsonage took a general history of the stressful work environment with only specific references to the rioting incident in 1990 and the inmate hanging in 1997. Dr Parsonage diagnosed Post Traumatic Stress Disorder attributable to traumatic experiences “such as feeling his life was threatened or dealing with prisoners who had committed suicide or injured themselves.”
[14] Reply, pp 88–96.
Dr Parsonage provided a second report dated 17 February 2012,[15] following a further assessment of Mr Thompson. Dr Parsonage confirmed the earlier history and diagnosis. He further confirmed that Mr Thompson had managed to continue to work until medical retirement by working night shift, thereby avoiding prisoner contact.
[15] Reply, pp 79–87.
Mr Thompson’s treating psychiatrist, Dr Holmes, also wrote a short report dated 5 December 2006.[16] He referred to an earlier report, which is not in evidence. He confirmed Mr Thompson’s symptoms continued and his condition had become chronic. Dr Holmes said that Mr Thompson’s condition had been reinforced over the years by continuing to work. He had managed to continue at work over the years by adopting avoidance behaviour such as working night shifts. He discussed further treatment options.
[16] Application to Resolve a Dispute (ARD), p 11.
Dr Doron Samuell, psychiatrist, also provided a medicolegal report directed to the insurer, dated 27 April 2009.[17] Dr Samuell referred to a large number of documents and a detailed summary of events. Those documents were not included with the report. Dr Samuell recorded that Mr Thompson last worked in an unrestricted capacity in 2000.
[17] Reply, pp 102–110.
Dr Samuell said that Mr Thompson described his injury as “a progression” with no actual date of injury. Mr Thompson told Dr Samuell that “I did go through some incidents … but it’s not an incident that, bang, straight away I’ve got a problem”. He reported to Dr Samuell that he had been involved in riots, and seen hangings. His life had been threatened many times and the events “all built up”. He indicated he wanted to go back and try to work in the prisons again.
Dr Samuell took the history that Mr Thompson had worked for the last two years of his employment doing night shift and he was happy with that. Mr Thompson believed there was no reason for him to have been medically retired. Dr Samuell formed the view that he could not retrospectively confirm or rule out the mechanism of injury.
Mr Thompson’s legal representative arranged for Mr Thompson to be medically examined by Dr Roger Wenden, psychiatrist, for the purposes of the s 66 claim. He provided two reports dated 16 December 2016. The smaller report assessed Mr Thompson’s WPI at 23%.[18]
[18] ARD, pp 8–10.
In the substantive report of the same date,[19] Dr Wenden took a consistent history of the many traumatic events that occurred during the course of Mr Thompson’s employment. The history included the 1990 riots and the disciplinary issues that followed, the threats from inmates, allegations that he was to blame for the riots, the serious injury to his brother in 1991 and the deliberate self-harm by inmates.
[19] ARD, pp 1–7.
Dr Wenden also recorded the onset of anxiety symptoms from the “early 1990’s” and the development of nausea and vomiting when going to work. The doctor noted that Mr Thompson moved to night shift duties to avoid contact with prisoners, which alleviated the symptoms. Dr Wenden further noted the new Governor was appointed and that in 2003 Mr Thompson was told he could no longer be accommodated on permanent night shift.
Dr Wenden diagnosed Mr Thompson’s symptoms as PTSD, resulting from his employment.
In 2017, the insurer arranged for a further review and opinion in relation to Mr Thompson’s claim. On this occasion Dr Ian De Saxe, psychiatrist, examined Mr Thompson and provided a report dated 21 April 2017.[20] Dr De Saxe took a limited history of work-related stressors. The history was confined to Mr Thompson:
(a) observing two prisoners, one of which had a knife. Mr Thompson fired a shot into sandstone which scattered debris and hundreds of prisoners started gathering. This event occurred in 1990 and as a result of this incident, Mr Thompson moved to permanent night duty;
(b) being moved to Silverwater Gaol in 1997, where he was required to sit at a desk in the middle of a cell block, surrounded by prisoners. Mr Thompson said he rang his wife, asking her to “Get me out of here”, and
(c) always being threatened and abused. Mr Thompson said this occurred over time and it was the main thing that had affected him.
[20] Reply, pp 1–14.
Dr De Saxe diagnosed chronic PTSD with Persistent Depressive Disorder and assessed 7% WPI. He opined that employment was the main contributing factor to the injury and the injury was attributable to a number of traumatic incidences as well as ongoing abuse from prisoners.
Two brief reports dated 1 August 2013 and 29 August 2013 are in evidence from Mr Thompson’s general practitioner in Kempsey, Dr Peter Ackerley.[21] Those reports do not add anything further to Mr Thompson’s history of complaints provided to the above medical experts. Dr Ackerley did however confirm that Mr Thompson had been experiencing psychological problems since the 1990s.
[21] ARD, pp 12–16.
In the second report, Dr Ackerley was asked to respond to the following question from the insurer:
“Is the injury of 12 January 2004 still the reason why Mr Thompson is [sic] not been upgraded to suitable duties.”
Dr Ackerley responded:
“Has been under treatment since 2000 (aprox [sic]) therefore not 12/1/2004 Problems apparently go back to a gaol riot in 1990.”
Mr Thompson was referred by the Registrar to an Approved Medical Specialist, Dr Douglas Andrews, psychiatrist, for assessment of his WPI. Dr Andrews issued a MAC on 23 August 2017.
Dr Andrews recorded a history that included:
(a) the event in 1990 that culminated in the prisoners rioting, following which Mr Thompson felt hassled and intimidated by the inmates, who he believed blamed him for the riot. Thereafter, Mr Thompson sought night shift duties;
(b) the severe assault on his brother in 1991;
(c) Mr Thompson being requested to perform the duties of the senior officer which involved added responsibility and was more stressful;
(d) attending to an inmate who had suicided by hanging, following which he was criticised for not following procedures. It took three to four years before he was exonerated;
(e) being transferred to Silverwater, which was three times larger than the former prison and inmates were allowed to mingle with the guards;
(f) receiving threats that he or his family would be hurt, and
(g) being psychologically assessed by Health Quest after he refused a promotion, which resulted in him being permanently appointed to the gatehouse.
Dr Andrews formed the view that the exposure to traumatic experiences reported to him were sufficient to satisfy the criteria for a diagnosis of PTSD. He said that almost immediately after the riots, Mr Thompson had increased anxiety and adopted avoidant behaviour. Further intrusive symptoms developed including changes in mood and cognition. Dr Andrews felt Mr Thompson also suffered from a persistent depressive disorder (dysthymia). He assessed Mr Thompson’s WPI to be 22%.
The remaining evidence is not relevant to the issue on appeal and therefore will not be reviewed here.
THE ARBITRATOR’S REASONS
In order to determine when the traumatic events relied on occurred, the Arbitrator found it necessary to take into account not only Mr Thompson’s statement evidence, but also the histories provided by him to various doctors, whose reports were in evidence.
The Arbitrator reviewed all of the evidence and the histories recorded by each of the medical experts. He noted the submissions of both parties.
He further noted that the parties agreed the “transitional provisions are engaged” and that the task before him was to examine the events occurring before and after 1 January 2002.[22] He noted Mr Thompson relied on the factual similarities between his case and in the Presidential decision in Fire & Rescue NSW v Hogrefe,[23] in which the Arbitrator’s decision to deduct 30% of the amount payable because of pre-2002 events was upheld by Deputy President O’Grady. The Arbitrator also noted that the State of New South Wales relied on Department of Environment, Climate Change & Water v J,[24] in which Deputy President Roche determined that despite the deemed date of injury being post 2002, all events occurred before 2002 and so the deduction to the amount payable was 100%.
[22] Thompson v State of New South Wales [2018] NSWWCC 34 (Reasons), [74].
[23] [2012] NSWWCCPD 34 (Hogrefe).
[24] [2010] NSWWCCPD 56.
The Arbitrator also considered the decision in SAS Trustee Corporation v Pearce[25] as authority to say that even if the injury is a disease deemed to have occurred after 2002, the task is to determine the causal connection between events before 2002 and the subsequent manifestation of symptoms consistent with the disease. Further, it was not a correct approach to discard events as being causative because no symptoms consistent with a psychological condition manifested at the time of the incidents.[26]
[25] [2009] NSWCA 302.
[26] State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 (Cornes), per Basten JA (McColl JA and Preston CJ of LEC agreeing) at [31] and [57].
The Arbitrator observed that he was not assisted by the lack of contemporaneous material. He further observed that Mr Thompson’s condition was diagnosed as PTSD with Major Depression and that Mr Thompson and the medical examiners focussed on the traumatic events that occurred in the 1990s. In particular, the Arbitrator referred to the opinion of the AMS that the events during the 1990s satisfied the diagnostic criteria required by the Diagnostic and Statistical Manual of Mental Disorders, Fifth edition (Criteria A) for the diagnosis of PTSD.
The Arbitrator considered the opinion of Dr Holmes that the PTSD was chronic, that it had been “reinforced” by continuing to work, and that Mr Thompson coped by using avoidant behaviour. The Arbitrator formed the view that Dr Holmes’ evidence suggested the avoidant behaviour led to “limited contribution to his condition”.[27]
[27] Reasons, [80].
The Arbitrator further reviewed the medical opinions of Dr Parsonage, Dr Tsang, Dr Wenden, Dr De Saxe and the AMS. After considering that evidence, the Arbitrator noted that the causative events complained of to each of those doctors occurred, or could be inferred as occurring, prior to 1 January 2002. Further, the Arbitrator noted the question posed by the insurer to Dr Ackerley and Dr Ackerley’s response, quoted at [66] and [67] above.
The Arbitrator formed the view that the decision in Hogrefe did not support Mr Thompson’s case as it was factually different. In Hogrefe, the worker had totally decompensated in 2006 because of events that occurred from 2005 when he was subjected to victimisation and abuse.
The Arbitrator concluded that the only significant event in Mr Thompson’s history that post-dated 1 January 2002 and contributed to his condition was his medical retirement. He accepted that this was a significant event, but also noted there was no medical opinion that attributed the retirement to the development of the condition or that it contributed to Mr Thompson’s condition.
The Arbitrator determined that “the vast majority of [Mr Thompson’s] impairment is a ‘previously non-compensable impairment’ … Given the almost total concentration of the medical evidence on the ‘Criteria A’ stressors prior to 2002…” the appropriate deduction of the compensation payable was 90%. He acknowledged that the calculation was somewhat conjectural, but considered the medical retirement was a factor to be considered.[28]
[28] Reasons, [90].
The Certificate of Determination issued on 7 February 2018 records:
“1. The applicant suffers from 22 per cent whole person impairment as a result of psychological injury sustained in the course of his employment with the respondent, the deemed date of injury being 12 January 2004.
2. The reduction in the compensation payable under s 66 of the Workers Compensation Act 1987, for the proportion of the permanent impairment suffered by the applicant that is a ‘previously non-compensable impairment’ is 90 per cent, applying Part 18C, clause 3 in Schedule 6 to the Workers Compensation Act 1987.
3. The respondent is to pay the applicant $3,250 pursuant to s 66 of the Workers Compensation Act 1987.”
GROUNDS OF APPEAL
Mr Thompson alleges three ways in which the Arbitrator has erred. Those are said to be that the Arbitrator erred in:
(a) failing to properly apportion between the incidents causing injury;
(b) not properly considering the effect to Mr Thompson of his loss of rostered night shifts, and
(c) apportioning 90% to pre-2002 injuries when the loss of night shifts escalated his psychiatric condition to an assessment of 22% WPI.
LEGISLATION
Sub-clause (2) of cl (3) of Pt 18C of Sch 6 to the 1987 Act provides:
“(2) There is to be a reduction in the compensation payable under Division 4 of Part 3 (as amended by the lump sum compensation amendments) for any proportion of the permanent impairment concerned that is a previously non-compensable impairment. This subclause does not limit the operation of section 323 of the 1998 Act or section 68B of the 1987 Act.”
Sub-clause (3) of cl 3 of Pt 18C provides:
“(3) A ‘previously non-compensable impairment’ is loss or impairment that is due to something that occurred before the commencement of the amendments to Division 4 of Part 3 made by the lump sum compensation amendments, being loss or impairment that is of a kind for which no compensation was payable under that Division before that commencement.”
SUBMISSIONS
Mr Thompson accepts that the Arbitrator correctly stated the law in accordance with cl 3.
He submits that the Arbitrator did not place enough weight on or properly consider the effect of the removal of night shift duties.
Mr Thompson refers to [41] of the Arbitrator’s Reasons in which the Arbitrator recorded the opinion of Dr Holmes that Mr Thompson continued to work using “avoidant behaviour”. Mr Thompson also refers to the Arbitrator’s Reasons at [45] in which the Arbitrator noted the history provided to Dr Samuell that Mr Thompson was happy to continue doing night shifts.
Mr Thompson further submits that the loss of night shifts was the “final straw” that led to him being assessed for the purposes of the “Workplace Injury Management Act” and impacted his employability.[29]
[29] Mr Thompson’s submissions, [7].
Mr Thompson says that the loss of night shifts was a significant factor in the assessment of his WPI and it “stands to reason” that it should constitute “40–50% of the causative factor” to his impairment.[30]
[30] Mr Thompson’s submissions, [8].
Mr Thompson maintains that the facts in his case are closely aligned with those in Hogrefe, in that both Mr Hogrefe and Mr Thompson suffered harassment at the hands of a new commander, and that conduct led to their decompensation.
The State of New South Wales submits that the clear language of s 352(5) of the 1998 Act requires that a decision of an Arbitrator cannot be overturned unless there is an error of fact, law or discretion. It says that where there is a challenge to an evaluative judgment, it is not sufficient for the appeal court to interfere simply because it prefers a different conclusion. The State of New South Wales relies on the Presidential decision in Raulston v Toll Pty Ltd[31] and Deputy President Roche’s discussion in that case of the observations of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd.[32]
[31] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[32] [2001] FCA 1833.
The State of New South Wales submits that the Arbitrator weighed all of the evidence and ultimately applied an evaluative judgment in determining that 90% of Mr Thompson’s condition was due to events occurring before 1 January 2002. It contends that Mr Thompson’s submissions fail to disclose or articulate the basis upon which any error has occurred.
The State of New South Wales further contends that any claimed error appears to be either an alleged error in the exercise of the Arbitrator’s discretion or an alleged factual error in undertaking the task of apportionment. The State of New South Wales relies on Davis v Ryco Hydraulics Pty Ltd[33] and submits that Mr Thompson is merely attempting to re-ventilate the merits of the dispute.
[33] [2017] NSWWCCPD 5, [65].
The State of New South Wales refers to the Arbitrator’s decision at [88]–[89], where the Arbitrator accepted that Mr Thompson’s medical retirement had a significant effect on him. The Arbitrator also referred to the lack of any medical evidence that attributed the retirement to the development of the condition or the extent to which the retirement contributed to the impairment. It says the Arbitrator correctly observed that Mr Thompson’s ability to function was not conclusive as to the extent of any contribution from any event to the impairment.
The State of New South Wales contends that the Arbitrator addressed in detail the retirement and Mr Thompson’s capacity to remain at work. It submits that the Arbitrator specifically took into account the effect of the retirement (said by the Arbitrator to be significant) despite the absence of expert evidence attributing impairment to that event.
The State of New South Wales submits that the Arbitrator was correct in determining that the state of Mr Thompson’s capacity was not definitive of any contribution to the impairment. Further it contends that the Arbitrator was correct to observe that the medical evidence placed significant emphasis on the pre-2002 traumatic events which satisfied the criteria for PTSD. The State of New South Wales says that approach was consistent with the authority laid down in Cornes.
The State of New South Wales submits that given the preponderance of traumatic events occurring prior to 1 January 2002, together with the onset of psychological symptoms at the time of those events, it was open on the evidence for the Arbitrator to conclude the apportionment accordingly. It submits that the deduction was warranted.
The State of New South Wales further submits that the Arbitrator was correct to distinguish Hogrefe on its facts and the Arbitrator’s COD should be confirmed.
In reply, Mr Thompson repeats that the Arbitrator has fallen into error in the exercise of his discretion by deducting 90% from the compensation payable. He maintains also that the Arbitrator erred in fact by distinguishing Hogrefe and “applying a greater apportionment for those events which occurred after the Appellant lost his night shifts”.
Mr Thompson says he disagrees that he is merely re-ventilating the merits of the dispute.
DISCUSSION
In essence, Mr Thompson alleges that the Arbitrator failed to give sufficient weight to the evidence that the withdrawal of rostered night shifts caused Mr Thompson further psychological decompensation to the point where his employability was greatly impaired.
In Shellharbour City Council v Rhiannon Rigby,[34] Beazley JA (Ipp JA agreeing, and Basten JA agreeing in principle) said at [144]:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”
[34] [2006] NSWCA 308.
The only stressor alleged by Mr Thompson to have occurred after 1 January 2002 was the pressure he felt he was under to return to normal shifts which resulted in the Health Quest assessment and medical retirement.
Mr Thompson makes only brief reference to those events in his statement and does not describe the effects, if any, those events on his psyche.
The history provided to Dr Tsang included a stabilisation of Mr Thompson’s mood until 2003, when the new Governor pressured Mr Thompson to return to normal shifts. Mr Thompson described to Dr Tsang that his medical retirement had “crushed” him, and he would have been happy to keep working on night shift. Dr Tsang did not articulate any particular stressor as being causative. He attributed the symptoms to “many incidents during the course of his employment with the Corrective Service and not from a specific event in 2004”.[35]
[35] ARD, p 22, [9].
The Arbitrator noted that history at [48]–[52] of his Reasons and considered Dr Tsang’s views at [82]. The Arbitrator inferred that the period of 17 years referred to by Dr Tsang would have commenced in 1985 (the start of Mr Thompson’s employment) and concluded in 2002. Mr Thompson does not challenge that inference on appeal.
The Arbitrator recorded the histories provided to all the medical experts.[36] He summarised the evidence of both Mr Thompson and the doctors who had examined him as having “largely focussed on the specific traumatic events the applicant unfortunately encountered during the 1990’s”.[37] The Arbitrator briefly reiterated each expert’s opinion at [80]–[85] and Mr Thompson’s evidence at [87].
[36] Reasons, [34]–[65].
[37] Reasons, [78].
The Arbitrator concluded that on the totality of the evidence, he was satisfied the only significant event that contributed to Mr Thompson’s impairment after 2002 was the medical retirement. He arrived at that conclusion after taking into account Mr Thompson’s evidence that he was happy to continue working night shift, the manner in which the case had been brought in the Commission and the “preponderance” of medical opinion.[38]
[38] Reasons, [87].
As the Arbitrator observed, there was no medical opinion that attributed the impairment to the medical retirement, however, the Arbitrator considered it to have had a significant effect on Mr Thompson.
Mr Thompson’s contention that the loss of night shifts was a significant factor in the assessment of his WPI has no foundation in the medical evidence. Nor has the assertion that the contribution ought to have been 40–50%. Mr Thompson describes the loss of night shift as the “final straw” that led to his assessment. Once again, there is no medical evidence that the event worsened Mr Thompson’s psychological state, although the Arbitrator considered it a factor contributing to the overall impairment.
Mr Thompson refers to the Arbitrator’s consideration of the evidence of Dr Samuell and Dr Holmes that Mr Thompson was happy doing night shifts, described by the experts as avoidant behaviour. He does not elaborate as to how that evidence assists his case that the Arbitrator erred in his factual determination as to the extent of the deduction in the compensation payable. On one view, the evidence goes to an amelioration of the effect of continuing to work beyond 2001. The medical retirement was only one factor in the long history of significant traumatic events that led to an ultimate diagnosis of PTSD. As the Arbitrator noted,[39] that diagnosis was dependent upon events consistent with Criterion A of the diagnosis, namely experiencing or witnessing actual or threatened death or serious injury.[40] On the chronology constructed from the evidence, such events all occurred in the 1990s.
[39] Reasons, [79].
[40] Diagnostic and Statistical Manual of Mental Disorders, Fifth edition.
Mr Thompson maintains that the Arbitrator erred in distinguishing Hogrefe. He alleges the facts are closely aligned because both Mr Hogrefe and Mr Thompson suffered harassment at the hands of a new commander.
The Arbitrator considered that submission in his Reasons.[41] Each case must be determined on its own facts. Mr Hogrefe was exposed to significant trauma prior to 2002, as was Mr Thompson. The two cases depart factually, however, in that Mr Hogrefe was thereafter transferred and was happy, very content, and had a good relationship with his superior. In 2005, a new fire station commander was appointed who, together with Mr Hogrefe’s co-workers, victimised and humiliated him, which ultimately led to his significant de-compensation.
[41] Reasons, [23].
There is no evidence in the present case that Mr Thompson was exposed to victimisation and harassment. At worst, the treatment of him by the new Commander was described as “pressure” to return to full duties. While Mr Thompson’s symptoms stabilised by avoiding the stressor of day shift, the evidence establishes that he suffered from significant symptoms consistent with a diagnosis of PTSD throughout the 1990s that continued during the period when he was on permanent night shifts and long after he ceased employment.
It was open to the Arbitrator to factually distinguish Hogrefe.
In Raulston, Roche DP said:
“Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.”[42]
[42] Raulston, [19] (sub-paragraph letting omitted).
The Arbitrator did not overlook material facts, or give undue or too little weight to the evidence before him. His reasons set out the relevant evidence fully, and adequately explained why he arrived at his conclusions. Mr Thompson has not identified any evidence that lends support to his complaint that the Arbitrator erred in any respect, or that there is an inference so preponderant that the inference drawn by the Arbitrator was wrong. It follows that there is no basis upon which to overturn the decision and the Appeal has no prospects of success.
Mr Thompson’s application to extend time for filing his appeal is refused.
DECISION
The appellant’s application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.
Elizabeth Wood
Deputy President
27 June 2018
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