Transfield Services (Aust) Pty Ltd v Wicks - [2011] NSWWCCPD 63

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Transfield Services (Aust) Pty Ltd v Wicks [2011] NSWWCCPD 63
APPELLANT:			Transfield Services (Aust) Pty Ltd
RESPONDENT:			Noel Wicks
INSURER:			Transfield Services (Aust) Pty Ltd
FILE NUMBER:			A1-801/11
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:			25 May 2011
DATE OF APPEAL HEARING:		31 October 2011
DATE OF APPEAL DECISION:			4 November 2011
SUBJECT MATTER OF DECISION:			Psychological injury; post-traumatic stress disorder; evidence; accuracy of history taken by medical experts
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
REPRESENTATION:			Appellant:	Mr P Perry, instructed by Holman Webb Lawyers
Respondent:	Mr P Stockley, instructed by Steve Masselos & Co
ORDERS MADE ON APPEAL:			The Arbitrator’s decision of 25 May 2011 is revoked and the matter is remitted to another Arbitrator for re-determination. The appellant employer is to pay part of the respondent worker’s costs of the appeal, assessed at $1,200 plus GST. Costs of the first arbitration, and of the second arbitration, are to follow the event of the second arbitration.

BACKGROUND

The respondent worker, Noel Wicks, started work as a cleaner with the Government Cleaning Service at the Newcastle Police Station in about 1980. He was later transferred to the Maitland Police Station, where he worked until December 2009.
In 1993 or 1994, the Government Cleaning Service was taken over by Tempo Cleaning Services and the worker’s employment transferred to that company. Later, the appellant employer, Transfield Services (Aust) Pty Ltd (Transfield), took over the contract work performed by Tempo Cleaning Services and the worker’s employment was transferred to that company in either November 2005 or January 2006.
The worker’s duties at Maitland Police Station, where he worked for about 18 years, required him to vacuum, mop, sweep, clean toilets, and generally clean and tidy the station. Mr Wicks was also on-call 24 hours a day, seven days a week to perform additional cleaning duties. He described those duties as “forensic cleans”. They involved cleaning the prison cells, the charge room and police vehicles in which offenders had either bled, vomited, defecated or urinated. The additional cleaning duties (referred to as “emergency cleans” in part of the evidence) were sometimes performed at the Maitland Police Station, and sometimes at other stations.
On 8 December 2009, Mr Wicks was reported missing from his home. He was later picked up and admitted to Maitland Hospital as an involuntary patient on 9 December 2009, where he remained until 22 December 2009. He has not returned to work since his discharge. He was again admitted to Maitland Hospital on 21 February 2010, but was discharged the following day.
At his initial admission to Maitland Hospital, Mr Wicks gave a history of having been “exposed to traumatic crime scenes during work as a police forensic cleaner”. The provisional diagnosis was as follows:
“PTSD
Depressive Disorder
Alcohol Dependence”
In proceedings commenced in the Commission on 3 February 2011, Mr Wicks claimed weekly compensation from 9 December 2009 to date and continuing, together with hospital and medical expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act). His injury was described as “Post Traumatic Stress Disorder (psychiatric/psychological)” caused as a result of him having been:
“exposed to police exhibits including burnt and bloodied clothing from victims of murders/suicides, photographs of crime scenes generally in the course of his employment as a forensic cleaner performing cleaning duties at forensic cleans, together with cleaning cells and charge-room at police stations. Nature and conditions of employment involving aggravation, acceleration, exacerbation of disease process – psychiatric up to Dec 2009.”
Transfield disputed liability on the ground that Mr Wicks had not been exposed to traumatic crime scenes and did not suffer from post-traumatic stress disorder, or any other compensable condition as a result of his employment with them. They also disputed whether Mr Wicks was incapacitated.
The Commission listed the matter for conciliation and arbitration on 4 May 2011. On that day, the Arbitrator gave leave for Mr Perry to cross-examine Mr Wicks about the apparent inconsistency between the description of his duties in the Maitland Hospital notes and the description in various “service reports” produced by Transfield, and about his capacity for work. Mr Wicks agreed that he had not been exposed to crime scenes in the course of his employment.
The Arbitrator found (at [71]) that the dramatic decompensation Mr Wicks suffered in December 2009 had been caused by an “accumulation of events” in the course of his employment at the Maitland Police Station and other police stations. Those events were:
(a)     repeated exposure to bodily fluids in the course of his work as a cleaner (whether they were “forensic” or “emergency” cleans);
(b)     the exposure to photographs of dramatic and traumatic crime scenes and other exhibits from such scenes, and
(c)     the suicide of at least one policeman at Maitland Police Station with whom he was friendly.
The Arbitrator added (at [72]) that the consumption of alcohol by Mr Wicks up to and at the time (of his admission to Maitland Hospital) was not insignificant, but the consumption of alcohol was a symptom of the worker’s condition rather than the cause of it.
At [73], the Arbitrator said that, notwithstanding that Mr Wicks had not been exposed to crime scenes, the accumulation of what he had been exposed to throughout the course of his employment at the Maitland Police Station was “dramatic and traumatic” and, as found by Dr McDonald, sufficient to give rise to the post-traumatic stress disorder and major depressive disorder secondary to post-traumatic stress disorder diagnosed by him. This diagnosis accorded with that found by Dr Canaris, a psychiatrist qualified on behalf of Mr Wicks.
In an appeal filed on 22 June 2011, Transfield has challenged the Arbitrator’s finding on injury.

PRELIMINARY MATTERS

Fresh evidence

Transfield initially sought to tender, as additional evidence on appeal, a floor plan of Maitland Police Station, a statement of Dorothy Heath dated 17 June 2011, and a statement of Sharon Webster dated 17 June 2011. The submissions filed in support of the Application to Rely on Fresh Evidence were misleading in that they suggested that these documents were necessary because of the oral evidence Mr Wicks gave at the arbitration. That submission was incorrect and should not have been made. The worker’s case was clearly articulated in his statements attached to the Application to Resolve a Dispute filed on 3 February 2011. At the hearing of the appeal, Mr Perry wisely did not press the tender of those documents.
The profession is reminded, yet again, that fresh evidence or additional evidence may not be given on appeal except with leave. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, or could not reasonably have been obtained by the party, before the proceedings concerned, or that the failure to grant leave would cause substantial injustice in the case (s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998). Neither test was satisfied in this case.

Issues in dispute

As the original Appeal Against Decision of Arbitrator failed to identify any grounds of appeal, I listed the matter for teleconference on 22 September 2011 and directed Transfield to file an amended appeal with further submissions in support. The amended grounds of appeal alleged that the Arbitrator erred in:
(a)     concluding that Dr Canaris provided support for the proposition that Mr Wicks had sustained a psychiatric injury as a result of that work;
(b)     concluding that Dr McDonald provided support for the proposition that the worker had sustained a psychiatric injury as a result of his work;
(c)     finding that the worker had been on call 24 hours a day, seven days per week when no evidence suggested that to be the case;
(d)     finding that an accumulation of events in the course of the worker’s employment at Maitland and other police stations caused the injury, when the evidence supporting that conclusion was flawed;
(e)     finding that the worker had sustained a post-traumatic stress disorder;
(f)      accepting that the worker had sustained a post-traumatic stress disorder as the result of the suicide of a friend and concluding from that finding that the case against Transfield had been made out, and
(g)     concluding that the worker’s alcohol intake was a symptoms of his alleged injury.
At the hearing of the appeal, Mr Perry did not press ground (c) above.

THE EVIDENCE

Mr Wicks

Mr Wicks provided two statements, the first dated 24 January 2011 and the second dated 14 April 2011. He also gave oral evidence at the arbitration.
Mr Wicks left school at the age of 14 and started work with the Newcastle City Council, where he remained for 12 years. He started work with the Government Cleaning Service as a cleaner in 1980. He initially worked at the Newcastle Police Station, but was eventually transferred to Maitland Police Station. In respect of his duties at the Maitland Police Station, he said in his first statement:
“8. As a result of working at the Police Station I was exposed to exhibits brought in, like ‘burnt and bloodied clothing of victims from murders and suicides’ which were hung up to dry and examined in the scientific room .The scientific room is now called the Forensic Police section. I also cleaned the cells and ‘charge-room’ where I cleaned up body fluids, faeces, urine, and blood from people that had been detained.
9. I also am exposed to photos of crime scenes, models of houses where victims had been murdered and graphic scenes of crime scenes where people had been burnt to death, committed suicide or had been killed in motor vehicle accidents.”
He said that he was on call 24 hours a day, seven days a week to perform “forensic cleans”. He said that, in the year leading up to December 2009, he noticed that he was irritable and grumpy all the time. He was only getting about four hours sleep each night and had “terrible dreams from [his] past about the photos and exhibits [he] had seen when cleaning them and felt that [he] was back in the Station when things actually took place”. He said he would wake up with hot and cold sweats, shaking and feeling scared. He said that he “kept seeing graphic photos of crime scenes, models of houses where people had been murdered”. By early December 2009, he felt “lost completely”, and tired and irritable all the time.
Mr Wicks then referred to his admission to Maitland Hospital on 9 December 2009, and to treatment and counselling he received from psychologists at that hospital, where he remained as an inpatient until 22 December 2009. After being discharged from the hospital, Mr Wicks attended on Dr Rai, general practitioner, and remained under his care. Dr Rai prescribed antidepressants, but Mr Wicks relapsed and was again admitted to hospital on 21 February 2010.
Mr Wicks said that, prior to his injuries, he had been very active and in good health. He used to referee his son’s football games, coach football and was involved in the football community for about 30 years. He started playing lawn bowls in about 2005 and enjoyed social drinking with his friends from lawn bowls.
Since December 2009, Mr Wicks had not gone out much and had “lost all confidence in socialising”. He said he rarely goes out unless he is accompanied by someone from his family. Prior to December 2009, he had been confident and outgoing. He ran the police social club, and arranged the Christmas parties, send-offs and social days. He said that he remained unfit for work and had “difficulty facing up to what happened and being unable to return to work”.
In cross-examination, Mr Wicks was questioned about the term “forensic clean”, which he had noted on report sheets that he completed following emergency cleans. Mr Perry asked the worker “where do you get the word forensic from?” and Mr Wicks replied “Well, it’s a thorough clean. It means that everything has to be completely sterilised and thoroughly cleaned to stop the spread of hepatitis and Aids and whatever” (T7.17). In performing these types of cleans, Mr Wicks used the products “Sure Shot” and “Retreat”.

Mary Wynands

Ms Wynands provided a statement to Transfield’s investigators on 5 April 2011. She has worked as an area supervisor with Transfield for the Maitland Muswellbrook area since January 2006. Prior to that date, she worked with Tempo Services as an area supervisor in the Newcastle area. She supervised Mr Wicks from January 2006. She commented on several “Asset Maintenance, Facility Management & Cleaning Service Reports” (service reports), which detailed additional cleaning performed by Mr Wicks between August 2008 and August 2009. With regard to the work in these documents, she said:
“12. It is Noel [Wicks] who described his work as a forensic clean. The Police Officer is primarily only concerned with ensuring the work required is done and the relevant officer signs off on that.
13. The Police Officers do not know our terminology for cleaning, I suppose they use their own terminology. The Police Officers would not question the terminology used by Noel – ‘Forensic clean’. They probably would not care what the ‘Full Description of Cause’ was stated as being. They are only interested in getting the cells cleaned or any other cleaning for the call out.”
She said that Transfield does not have and has never had forensic cleaners. They are called “emergency cleans” and Mr Wicks was trained to perform emergency cleans. She said that she did not know what Mr Wicks meant by the term “forensic cleaning”. She believed the term “forensic cleaning” applied to a murder or suicide and that such a clean would be undertaken by a highly trained person in a specific field.
Apart from “emergency cleans”, the worker’s duties were general cleaning duties at the Maitland Police Station. Those duties included cleaning toilets, garbage removal, vacuuming and mopping floors, and removal of external cobwebs. She said that “Retreat” is a bleach used for cleaning toilets and bathrooms and prison cells. It is a general purpose household bleach and has nothing to do with forensic cleaning. Similarly, “Sure Shot” is a multi-purpose cleaner used for cleaning floors. Mr Wicks used both products in the course of his normal cleaning duties. For emergency cleans, Transfield provided a kit that included disposable gloves, a vomit kit, disposable paper overalls and a paper face mask.

Dorothy Heath

Ms Heath provided a statement to Transfield’s investigators on 19 April 2011. She said that, since December 2009, she had worked as the court process officer at the Maitland Police Station. Prior to that date, she worked as the parking patrol officer with the NSW Police at Maitland and Cessnock. Prior to that, she worked as a cleaner at Cessnock High School and Mount View High School.
She said that, in early December 2010 (presumably this should be 2009), Mr Wicks was reprimanded for revealing information about a highway patrol operation that was to take place near a bowling club. He allegedly leaked the information to the club, which resulted in the operation being cancelled. Subsequent to the reprimand, Mr Wicks stopped work and had not returned.
Ms Heath was aware that Mr Wicks alleged he was suffering from post-traumatic stress disorder as a result of flashbacks from his duties as a forensic cleaner attending murder scenes and a suicide scene. She said that no such duties had ever been conducted by Mr Wicks as an employee of Transfield. She then explained the general nature of his usual duties. Cleaning prison cells might “on occasion” have included the cleaning of blood, vomit, faeces and other bodily fluids. However, that would be rare, as the cleaning activity was only ever in and around the police station.
Ms Heath said that, approximately four years ago, there was a vehicle at Morpeth Police Station in which a person had committed suicide. The family wanted the vehicle returned and Ms Heath contacted Mr Wicks to see if his wife, who ran her own cleaning business, was interested in cleaning the vehicle. She could not recall if the worker’s wife cleaned the vehicle.
Ms Heath said that “emergency cleaning” may have been required from time to time and would involve cleaning blood and bodily fluids in a police station or police vehicle. She could recall Mr Wicks, on rare occasions, travelling to Beresfield, Raymond Terrace, Cessnock and Newcastle Police Stations. He would have used bleach and detergent to perform that work.
Mr Wicks had a few problems in his family life immediately prior to leaving work. Ms Heath said that he had been having an affair with a woman in town and that his wife found out.
At work, Mr Wicks was a relaxed, nice person. He was fantastic with the social club. However, as a cleaner he was very poor. His attendance was poor and, when he was at work, he would often start late and finish early. The duties he performed were “less than satisfactory”.

Response by Mr Wicks

In his April 2011 statement, Mr Wicks responded to the statement provided by Ms Wynands. He said that he had never been reprimanded by Ms Wynands or the police department for giving out confidential information. He felt that Ms Wynands has only had a problem with his work since he had been off sick.
With respect to the suggestion that he had problems at home with his wife, he said that he had arguments with his wife “like any other couple”.

Documentary evidence

Mr Wicks completed an employee’s report of injury form on 4 May 2010. Under “how did the injury occur, what were you doing at the time?” he wrote:
“FLASHBACKS FROM FORENSIC CLEANING
POST TRAUMATIC STRESS DISORDER”

Maitland Hospital

The Mental Health Assessment in the hospital’s notes for 9 December 2009 includes the following under “formulation/overall clinical impression”:
“• 55 year old male, presents in company of police, after being reported as missing person yesterday – left suicide note & left house, intoxicated, just before midnight. No trigger yesterday, but worsening depression over 2/52.
·   Long history of being exposed to traumatic crime scenes, during work as police forensic cleaner. Reported increased startle response.
·   Experiencing flashback & nightmares.
·   Worsening of depressive symptoms, with chronic disturbance of sleep, appetite, motivation & anhedonia. Alcohol consumption has increased with depressive symptoms.”
Other notes on admission refer to Mr Wicks having been plagued by negative thinking for the past two years and feeling depressed for six to eight months. Other parts of these notes are difficult to read, but there is a clear reference to Mr Wicks drinking “around 10 schooners/day”. There was also a reference to “suicidal ideation daily 12/12”.
The notes also record:
“Noel admitted as markedly ill. Noel has 18/12 to 24/12 history of features of PTSD (with recurrent images, flashbacks, nightmares; hypervigilance & hyperarousal, avoidance behaviour (he has been avoiding certain requests to clean places where he felt [it] may be hard for him to handle past 2 years), & numbness (with him feeling no emotion).”
The hospital notes for 10 December 2009 refer to “PTSD symptoms” of intrusive disturbing memories and images from homicides and suicides Mr Wicks has had to “industrially clean”. Earlier incidents were particularly recalled. They included murders at Mayfield and Newcastle Beach, and two murders at Stockton. He remembered the victims’ names. The notes added:
“-    More recently intrusive images cells he cleans up of blood
-      Last incident where decided no longer to go on homicide/suicide events – mum shot 2 kids & herself. Noel knew family, & at time and he started having own grandchildren.
-      Repeated memories & images occur ‘nearly all the time’.
-      Has repeated disturbed nightmares, wakes up startled & jumps. Occurs 4–8 times per night.”

The notes also referred to Mr Wicks thinking of bad things and “stressful life events”, for example, “blood all over walls, cleaning up crime scenes”.
The notes for 11 December 2009 record that Mr Wicks started using alcohol regularly five years ago, when the last of his children left home. Prior to that, he drank “a couple of beers on social occasions”. Five years ago, he started drinking 15 gm daily. Two-and-a-half years ago, he increased his intake of alcohol to 60–150 gm daily, depending on his mood. He said that stress from work and memories of the past would make him increase his alcohol intake so he would sleep better.
The hospital’s discharge referral dated 22 December 2009 includes the following under “presenting problem”:
“Recurrent flashbacks, nightmares, hypervigilance, hyperarousal and avoidance behaviour related to his work as a forensic cleaner (cleaning of crime and murder scenes for police). Heavy alcohol intake.”
Clinical notes from Maitland Hospital for 21 February 2010 record under “impression”:
“Depression
? PTSD, certainly some symptoms present
in the context of alcohol abuse and exposure to trauma through his job as a forensic cleaner”.

Adele Sedgman

Ms Sedgman is a clinical psychologist who saw Mr Wicks for eight sessions in 2010, with the first being on 23 April 2010. She reported to Dr Rai on 16 August 2010 that Mr Wicks presented with symptoms consistent with post-traumatic stress disorder. He reported “experiencing recurrent intrusive thoughts and images, recurrent distressing dreams and intense psychological distress when exposed to cues that resemble the traumatic events”. He had difficulty falling and staying asleep, irritability, difficulty concentrating and hypervigilance. He also experienced feelings of loss of control, hopelessness and helplessness.

Medical evidence

Dr Rai provided a report to Steve Masselos & Co on 21 July 2010. He first saw Mr Wicks on 24 December 2009, when he gave a history of “flashbacks from being a Forensic Cleaner of murder cases, etc and has been under Maitland Mental Health Team where he was admitted with severe depression and anxiety”.
On examination, Dr Rai found the worker to be a very depressed man. He was on antidepressants, undergoing counselling and attending the Maitland Mental Health Team. He was waiting for an appointment to see a psychiatrist in Sydney and was unfit to work until review on 31 July 2010.
Dr Rai issued the first WorkCover medical certificate on 3 May 2010. Under diagnosis, he recorded “flash back from being employed as a forensic cleaner”. He has ticked “yes” to the question of whether the worker’s employment was a substantial contributing factor to the injury.
Dr Canaris is a consultant psychiatrist who saw Mr Wicks at the request of his solicitors on 14 September 2010. In his report of 21 September 2010, he said that he gathered that Mr Wicks “had been designated an emergency cleaner as opposed to a forensic cleaner despite putting the latter on his timesheets”. Mr Wicks described his duties as follows:
“basic cleaning most of the time – I do the cell complexes – ground floor – and I get to do body fluids of any description – blood – in vehicles – cells – I get called to other stations to do it.”
Mr Wicks would do forensic cleanups or “emergency cleans as they call it” in Police Stations in Newcastle, Maitland, Cessnock and Nelson Bay. He said he enjoyed going to work and that the police stations were never dull. He started having bad sleeping habits two-and-a-half years ago when one of his mates, a policeman, committed suicide. In describing his broken sleep, he said:
“You’d be dreaming and you’d wake up – you’d been in a hot sweat – you’d wake up with your head full – it could be photos you saw in the scientific section – it could be the smell of dried blood on clothes – dry blood has [a] really funny smell to it.”
Mr Wicks found it difficult to distinguish between dreams and flashbacks. His sleeping problems left him feeling tired most of the time. He said that “back then” he drank probably four or five schooners a day. It was more of a social thing with his mates, rolled up with a few games of bowls. He said he had stopped drinking at the time he saw Dr Canaris.
Mr Wicks continued working until his psychiatric hospitalisation in December 2009. He said that he thought he was all right and that everything was okay, but on that day he “just didn’t want to be there”.
Mr Wicks said he used to look forward to working, but now just the smell of something would set him off. Depression remained a constant presence in his life. He said that he struggled to understand what had happened.
Dr Canaris said that Mr Wicks seemed to recall unpleasant events from his time at work, though he had significant difficulty articulating his experiences. He had been completely physically and mentally well “before all this”.
Dr Canaris concluded:
“Your client gives a history of ongoing exposure to highly distressing scenes flowing from having to clean up in the aftermath of serious injuries with his distress greatly magnified by learning of the suicide of a police officer whom he regarded as a friend. He initially presented after having gone missing – his distress when he presented to hospital is amply documented in the hospital file and in the Schedule one form.
He described and continues to describe persistent and distressing reliving of trauma exposure though he found it difficult to distinguish between nightmares and flashbacks whilst saying he would find it very distressing to return to his workplace because it brought back memories of traumatic events.”
Mr Wicks had become generally avoidant, as was apparent from his reluctance to go to his workplace, coupled with becoming socially isolative, withdrawn, and depressed to the point of feeling that he wanted to die. He showed evidence of ongoing hyperarousal, with difficulties sleeping, particularly in the context of anxiety-fraught dreams and flashbacks, hypervigilance, and irritability. His symptoms had been present for an extended period and had taken on a chronic course, interfering substantially with his social functioning, capacity for work, and quality of life. His presentation was complicated by a significant depressive component, with a period of alcohol abuse that was in apparent remission.
In a supplementary report dated 13 October 2010, Dr Canaris said that it was his strong view that the work Mr Wicks performed as a forensic cleaner contributed very substantially to the onset of his post-traumatic stress disorder.
Dr McDonald is a consultant psychiatrist. He first saw Mr Wicks on 1 November 2010 on referral from Dr Rai. In his report of 30 November 2010, Dr McDonald reported that Mr Wicks said:
“I just had a breakdown. I lost the plot completely … I wanted to commit suicide. The police came into my home and took me to hospital … I stayed a few days in the mental health section.”
Dr McDonald added :
“Noel told me that he had worked all of his life, and had enjoyed most aspects of his work, so that it had been a great loss to be no longer able to work. He told me that while he had improved somewhat over the past 12 months, life was still a struggle. A lot of unpleasant memories kept coming back regarding his years at work, often triggered by smells, by news items (eg regarding accidents) and he would start to feel powerful emotions which he had difficult [sic] explaining. He found himself thinking about unpleasant events related to his work, which at the time he thought he had dealt with quite well. These events had involved exposure to blood spills at the scenes of crimes or suicides, exposure to explicit photographs (of dead bodies), and grief over the suicide deaths of certain police officers whom he had worked with. In particular he recalled the smell that was left behind by dead bodies or large amounts of congealed blood. He said that this smell was something that you could ‘not get away from’.”
Mr Wicks felt that life had very little purpose or pleasure, although he was able to enjoy contact with his family, particularly his children and grandchildren. He had lost confidence and did not like going out unless he was accompanied by a close family member. He had become something of a recluse. He often thought about suicide. His sleep was disturbed and he would often have disruptive dreams. His mood was depressed much of the time, but not quite as badly as it had been in December 2009. He gave no history of psychological difficulties prior to the development of his current illness. He remained on antidepressant medication at the time of Dr McDonald’s assessment.
Mr Wicks had not consumed alcohol since March 2010. He said that “[p]reviously, his general intake had been three to five schooners on weekdays, somewhat more on Saturdays and sometimes more on Sundays”. The worker’s developmental history was sound. He was the third of seven siblings, in a close and loving family. He led a simple, hardworking life. He was no scholar and left school at 14 to work in the abattoirs. There was no history of early life trauma, deprivation or abuse. He had never been out of work until he became ill in December 2009. He married at the age of 18 in 1972 and his relationship with his wife had been a good one. He still wanted to get back to some sort of work, but said that he would not even be able to help his wife in her cleaning work, as the smell of the cleaning agents would immediately trigger distressing memories.
On examination, Mr Wicks presented with a “sad and restricted affect”. He gave poor eye contact and described himself as “nervous, a bit agitated”. His thought content showed good reality testing, preoccupation with loss and sadness, and in particular the loss of people with whom he had previously worked. He could not understand what had gone wrong.
Dr McDonald diagnosed chronic post-traumatic stress disorder and major depressive disorder secondary to the post-traumatic stress disorder. He thought that the post-traumatic stress disorder had arisen “in direct response to an accumulation of extremely unpleasant experiences symbolically associated with violent death, in the course of his lengthy employment as a cleaner with the Police Service.”
He recommended a continuation of antidepressants and tranquilisers. He also recommended regular psychotherapy. He thought that Mr Wicks had been and remained totally incapacitated for work.
Dr McDonald saw Mr Wicks again on 21 December 2010 and reported to Dr Rai on that day. The worker’s dreams had become more vivid and he woke from them fearing that some calamity had befallen his loved ones. That could partly be explained by the time of the year and partly by the increase in his Efexor dose, which probably increased his dream activity. Mr Wicks spoke of the immense sense of loss he experienced with the suicide of an inspector at East Maitland station on Christmas Eve three or four years ago and even more so from the unexpected suicide of an inspector from another station who had been his friend for over 20 years and whom he had seen only a day or so before the suicide.
Dr McDonald reported on 3 February 2011 (wrongly dated 3 February 2010) that Mr Wicks continued to have marked sleep disturbance with only four hours sleep per night, broken and characterised by nightmares and flashbacks which, when he woke, seemed so real that he often feared for the safety of his family. He remained on antidepressant medication.
Dr Akkerman is a consultant psychiatrist who examined and reported on Mr Wicks at the request of Transfield’s solicitors on 9 March 2011. He said that Mr Wicks alleged that he had post-traumatic stress disorder as a result of his work, which he called “forensic cleaning”. He said that Mr Wicks worked at Maitland Hospital (corrected in a later report to Maitland Police Station) and that he was not employed to do forensic cleaning and was not exposed to any kind of material that he alleged in his recent statement. The incidents referred to in the clinical notes from Maitland Hospital did not occur at the Maitland Police Station and he did not attend those incidents as an employee of Transfield. Dr Akkerman said there was a history of alcohol abuse and there may have been a separation from his wife at some point.
Dr Akkerman said that Mr Wicks did not volunteer any post-traumatic stress disorder symptoms. The worker did say he had nightmares, but Dr Akkerman’s description of this part of the history is difficult to follow. He recorded:
“He says he has nightmares, he said they are regarding the job, they require him cleaning blood, he says they vary in content although they tend to be stereotypical.”
Dr Akkerman recorded:
“I inquired as to what the cause was. He said it was a build up of things, he said it just happened. I asked him about crime and murder scenes. He said ‘You see them coming in’, he had to clean up blood, he also had to clean up other body fluids. He is not claiming that he actually went to crime or murder scenes any more. He said there were no other stressors.”
Mr Wicks told Dr Akkerman that he had drunk to excess in the past, but was vague regarding details. Dr Akkerman said he detected alcohol on the worker’s breath, in spite of the consultation being in the middle of the day. He said that Mr Wicks exaggerated his symptoms. His mood was mildly depressed, as was his affect. His concentration was normal and short term memory was also normal. He was not irritable or tearful and did not seem to become upset when he described any stressors. There was no avoidance and he did not startle easily.
Dr Akkerman concluded that, most likely, Mr Wicks suffered from a mild mood disorder in the form of an adjustment disorder at the time he went off work. The disorder would have been related to the expected disciplinary action regarding tipping off the public over the police action. He considered that the worker’s employment was a substantial contributing factor to his psychiatric condition, but s 11A, reasonable action taken by the employer regarding discipline was “the cause of the condition”. He said that Mr Wicks had convinced himself that he could not work. In Dr Akkerman’s opinion, there were no restrictions on his ability to work; he can work, but does not want to work.
Dr Canaris reported again on 28 March 2011, after having reviewed Dr Akkerman’s report of 3 March 2011. He found it surprising that, as best he could tell, Mr Wicks did not volunteer to Dr Akkerman any symptoms of post-traumatic stress disorder. He said that the history had to be clarified because the diagnosis of post-traumatic stress disorder, and liability for it, requires a history of exposure to “certain types of events”.
Dr Canaris then dealt with the criteria for post-traumatic stress disorder in respect of Criterion A, and then referred to the history he previously took from Mr Wicks. He then said:
“Nevertheless, he did seem to be saying that he witnessed situations that he associated with violence and serious harm to others that caused him considerable distress. However, if he did not clean up after crime scenes and did not have exposure to blood, bodily fluids or photographs, then the diagnosis of posttraumatic stress disorder would be harder to sustain. You will note under Criterion B that I have alluded to the suicide of a police officer who he seemed to regard as a friend, which seemed to coincide with the deterioration in his psychological health. He seemed to regard this event as especially troubling.” (emphasis included in original)
With respect to Criterion B, Dr Canaris again noted the history he previously took from Mr Wicks and said that his symptoms accorded with Criterion B. He said that the Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV) allowed a wide range of forms of re-experiencing in alluding to thoughts, dreams, or perceptions as opposed to mere flashbacks. A person waking from a nightmare might well find it difficult to say whether he had been dreaming or experiencing a flashback.
Dr Canaris then considered Criteria C, D, E and F, and referred to the complaints by Mr Wicks that were consistent with those criteria. He concluded:
“I note that some of your client’s symptoms overlap with his comorbid depression, which often accompanies post-traumatic stress disorder. He also has been abusing alcohol – a very common comorbidity with post-traumatic stress disorder. The distinction between post-traumatic stress disorder and depression can be difficult to delineate, but the two conditions occur simultaneously so often as to comprise effectively one syndrome.”
Dr McDonald prepared a supplementary report on 5 April 2011, in which he responded to Dr Akkerman’s report of 3 March 2011. He obtained the impression that Dr Akkerman took quite a brief and superficial history from Mr Wicks, and that he (Dr Akkerman) was relying far more on collateral information. Dr McDonald thought that was “at odds” with Dr Akkerman’s statement that his opinion was “based entirely upon evaluation of objective findings identified”.
Dr McDonald found Dr Akkerman’s statement that Mr Wicks “exaggerated his symptoms” to be “extraordinary”. With respect to Dr Akkerman’s assertion that Mr Wicks “did not volunteer any symptoms of post-traumatic stress disorder”, Dr McDonald said that patients often do not volunteer a description of their symptoms, particularly if they are not articulate, on account of personality, educational background or social background. The elicitation of symptoms was often achieved only by careful and sensitive interview in which the patient felt comfortable enough to speak honestly and fully.
In relation to Dr Akkerman’s assertion that Mr Wicks had no restrictions on his ability to work, Dr McDonald said that there was no indication as to why Mr Wicks, who has worked for so many years, had come to the point where he no longer wanted to work.
Commenting on Dr Akkerman’s conclusion that Mr Wicks did not describe symptoms consistent with the diagnosis of post-traumatic stress disorder, Dr McDonald said, in summary:
(a)     Mr Wicks described exposure to blood spills at the police station or scenes of violence, and explained that it was part of his job to clean up such spills. He said that he had been exposed to explicit photographs of dead bodies. Additionally, he had learnt about the suicide deaths of certain police officers with whom he had worked and become friendly. Thus, Mr Wicks satisfied diagnostic Criteria A1 and 2, in that he had experienced being confronted with events that had involved actual death and/or serious injury to others in such a way as to provoke a response of intense fear. This exposure, and the resultant emotion, had become cumulative over time;
(b)     Mr Wicks described re-experiencing phenomena which satisfied Criterion B for post-traumatic stress disorder. Mr Wicks had recurrent and intrusive distressing recollections (B1) and recurrent distressing dreams (B2) related to the above events. He also experienced distress triggered by cues such as news items or smells which resembled some aspect of the traumatic events (B4);
(c)     Mr Wicks satisfied a number of Criterion C items relating to persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. He found it impossible to imagine going back to his former employment owing to the associations that it now had for him. He had cut back dramatically on his socialising, become reclusive and preferred to spend time either with his close family or alone (C4). He described reduced purpose and lowered expectation of the future, with doubts as to whether he will live long enough to see his grandchildren grow up (C7). He also described deep feelings of isolation and loneliness (C5);
(d)     Mr Wicks also described persistent symptoms of increased arousal since his exposure to the traumatic events, in particular, his disturbed sleep (D1), his forgetfulness, which he thought likely to reflect difficulty with concentration (D3), increased tension and wariness (D4), and an increased tendency to startle (D5); and
(e)     the duration of his impairment and the significant distress and impairment of his social functioning satisfied Criteria E and F. The duration of his symptoms qualified him for the chronic form of post-traumatic stress disorder, namely, symptomatic for more than three months.

Dealing with Dr Akkerman’s criticism that Dr McDonald’s report of the worker’s mental state examination did not describe symptoms of post-traumatic stress disorder, Dr McDonald said that the mental state examination had to be distinguished from the clinical history obtained from the patient. Dr McDonald then set out his previous findings on examination and said that he took the worker’s word “as being accurate when it came to the history that he reported”. He felt it advisable to assume, in the absence of any evidence to the contrary, that the patient was reporting more or less the version of events that he believes is true.
Dr McDonald concluded:
“In summary, Mr Wicks’s history (as given by him) and his presentation were consistent firstly with the diagnosis of major depressive disorder and secondly they were consistent with a diagnosis of chronic PTSD. If the independently corroborated history was in general consistent with the history given to me by Mr Wicks, then I would postulate that his depression has arisen as part and parcel of the anxiety disorder, namely PTSD. If, on the other hand, independent and reliable sources were to lead to the conclusion that Mr Wicks’s history was inaccurate in certain fundamental and important details, then I would still be asking the question as to why Mr Wicks has become depressed, and was at times so depressed as to want to take his own life, particularly when intoxicated with alcohol. Something had happened, or a series of things had happened in his life, to bring about a profound change in his attitude to himself and to his life. Dr Akkerman made no attempt that I can see, to elicit why this should be so” (emphasis included in original).
Dr Akkerman reported again on 29 April 2011, when he commented on the reports from Drs Canaris and McDonald, and the statement from Ms Heath dated 19 April 2009.
Dr Akkerman said:
(a)     he had been informed that Mr Wicks did not have to clean up after crime scenes and had not been exposed to blood, bodily fluids, etc;
(b)     patients can exaggerate or play-act their symptoms;
(c)     while it might not be uncommon for patients not to volunteer symptoms in a therapeutic setting, in a medicolegal setting, the opposite was often true. Patients who are trying to convince an independent examiner that they suffer from post-traumatic stress disorder often give details of their history and symptoms “more than is necessary”;
(d)     Dr McDonald described symptoms of depression, but did not describe symptoms typical of post-traumatic stress disorder, such as getting upset when reiterating the history, using avoidance, startling easily or being hypervigilant;
(e)     Mr Wicks was reprimanded in early December 2010 for revealing information about a highway patrol operation that was to take place near a bowling club. He left his employer and he has not returned to work;
(f)      he noted Ms Heath’s statement to the effect that Mr Wicks did not do forensic cleaning and was not required to attend murder or suicide scenes;
(g)     the history Mr Wicks gave to Dr Akkerman of having been exposed to crime and murder scenes was not correct;
(h)     that the nightmares were stereotypical “is a strong indicator of malingering”. Very soon after the development of post-traumatic stress disorder, the content of nightmares starts to change;
(i)      Mr Wicks was only mildly depressed and did not have symptoms of post-traumatic stress disorder. As he was not exposed to the stressors he said he had been exposed to, he did not fulfil Criterion A of having been exposed to severe stressors. Therefore, the diagnosis of post-traumatic stress disorder, by definition, was not possible;
(j)      neither Dr Canaris nor Dr McDonald described in the mental state examination any of the observable signs of post-traumatic stress disorder. It appeared that they both accepted the worker’s story “on face value”. However, “in the medical legal [sic], patients have a clear secondary gain by monetary gain and as a consequence one needs to look for objective criteria”. Neither Dr Canaris nor Dr McDonald did so. They both took the history of being exposed to crime scenes on face value. It was clear that Mr Wicks had not been exposed to that “issue”;
(k)     neither Dr Canaris nor Dr McDonald appeared to be aware of Mr Wicks’s extramarital affair, nor the fact that Mrs Wicks had found out;
(l)      Dr Canaris and Dr McDonald have relied on an unreliable history and taken the history on face value. They did not record a mental state examination required for the diagnosis of post-traumatic stress disorder;
(m)   his opinion remained unchanged, and
(n)     he thought it would be useful for Mr Wicks to be re-examined regarding the affair and how his wife found out, particularly to look at when it occurred and how it related to his admission of the development of symptoms, etc.

SUBMISSIONS

The appellant’s submissions

The history given by Mr Wicks to Dr Canaris, namely, that he suffered from ongoing exposure to highly distressing scenes while having to clean up in the aftermath of serious injuries, was untrue. There can be no doubt that Dr Canaris proceeded on the basis that Mr Wicks was attending as a forensic cleaner to the scenes of serious injuries. Dr McDonald proceeded on the presumption of the accuracy of the worker’s history that he, the worker, had been exposed to “blood spills at the scenes of crimes or suicides”.
Though the Arbitrator conceded that the medical experts were misled about the nature of the worker’s duties, he failed to acknowledge that the opinions provided by those experts as to diagnosis were “tainted”. The diagnosis of post-traumatic stress disorder was founded on the history of the worker performing forensic cleans, which Drs Canaris and McDonald understood to be cleaning up crime scenes and which the Arbitrator accepted was an incorrect assumption.
This error was critical to the decision, as it is clear that the Arbitrator proceeded on the basis that he could accept the opinions of Drs Canaris and McDonald that Mr Wicks had sustained a post-traumatic stress disorder. The Arbitrator failed to inform himself that the weight to be accorded to the evidence from Drs Canaris and McDonald had to be assessed in the light of the criteria accepted by those experts (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 at [76] (Hancock)).
The Arbitrator also erred in stating that, based on Dr McDonald’s evidence, the worker’s “consumption [of alcohol] was a symptom of his condition rather than the cause of it”. Mr Perry said that Dr McDonald’s evidence did not support the Arbitrator’s conclusion. He also referred to the Maitland Hospital notes, which referred to Mr Wicks starting to use alcohol five years ago when the last of his children left home.
With respect to the suicide deaths of two of the worker’s friends who had been police officers, it was submitted that there was no evidence that those deaths caused a reaction of intense fear or horror. In any event, the deaths were not causally linked to the worker’s employment and the Arbitrator erred in relying on them to support a finding of post-traumatic stress disorder that had resulted from employment with Transfield.

The worker’s submissions

Mr Stockley submitted that Mr Wicks was diagnosed with post-traumatic stress disorder when he was first admitted to Maitland Hospital on 9 December 2009 and that he was treated for a serious psychiatric condition. A great deal of his symptoms and dreams related to his workplace. He referred to the entry in the notes from Maitland Hospital under “Mental Health Assessment” (quoted at [37] above) and, in particular, emphasised that Mr Wicks gave a “[l]ong history of being exposed to traumatic crime scenes, during work as police forensic cleaner” and “[r]eported increased startle response”.
A worker might be careless on a claim form, but would not make up such a history at a hospital. Mr Stockley referred to the service reports in evidence, which recorded that, from time to time, Mr Wicks had to clean blood from either police cells or police cars. The reports described that work as a “forensic clean”.
Mr Stockley placed great weight on Dr McDonald’s opinion in his report of 30 November 2010 that the worker’s post-traumatic stress disorder “had arisen in direct response to an accumulation of extremely unpleasant experiences symbolically associated with violent death, in the course of his lengthy employment as a cleaner”.
After referring to Transfield’s expert evidence from Dr Akkerman, Dr McDonald and Dr Canaris both made appropriate concessions, but adhered to their original diagnosis. Dr McDonald asked rhetorically, what is the explanation if it is not work? Transfield’s answer of alcohol abuse is a red herring.
Hancock makes it clear that the assessment of expert evidence is a question of fact and that it is not necessary to catalogue every fact. Nor is it necessary that there be strict compliance with each and every feature referred to by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) to be set out in each and every report. The facts proved do not have to correspond with complete precision to the proposition on which the opinion is based (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 (Paric)).
Mr Stockley also relied on Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451, where it was noted that the Compensation Court did not have to determine cases with scientific certainty. In undertaking its analysis of the facts, it can be guided by its impressions.
Taking into account the opinions of Dr McDonald and Dr Canaris, the chronology, the decompensation in December 2009 (which was said to be referrable to the workplace), and the worker’s history of dreams and flashbacks about traumatic events, the Arbitrator’s conclusions were open to him and disclose no error. If there was some minor part of the evidentiary chain where an error occurred, it was not of sufficient significance to justify setting aside the decision. The Arbitrator’s conclusion was inevitable.
The Arbitrator did not say that Dr Canaris had an incorrect history. He said (at [56]) that it “may have been” that Dr Canaris was under a misapprehension as to the true nature of the worker’s duties.
Caution should be exercised in saying that Dr McDonald had an inaccurate history. Dr McDonald said at page 2 of his report of 30 November 2010 that:
“A lot of unpleasant memories kept coming back regarding his years at work, often triggered by smells, by news items (eg regarding accidents) and he would start to feel powerful emotions which he had difficult[y] explaining. He found himself thinking about unpleasant events related to his work, which at the time he thought he had dealt with quite well. These events had involved exposure to blood spills at the scenes of crimes or suicides, exposure to explicit photographs (of dead bodies), and grief over the suicide deaths of certain police officers whom he had worked with. In particular he recalled the smell that was left behind by dead bodies or large amounts of congealed blood. He said that this smell was something that you could ‘not get away from’.”
It was argued that this statement by Dr McDonald provided the evidence of the “accumulation of events” referred to by the Arbitrator. The cleaning of blood that Mr Wicks did was not in a geriatric ward, but was in the context of a violent event and lends support to the impressions recorded by Dr Canaris and Dr McDonald.
The medical evidence provides a strong basis to conclude that Mr Wicks has a psychological condition. If the appellant seeks to undo that by strict reference to the DSM-IV, I should read the introduction of the DSM-IV, which has directions as to how to apply its classifications and criteria. Taking those matters into account supports the conclusions reached by Dr Canaris and Dr McDonald.

DISCUSSION AND FINDINGS

The opinions of Dr Canaris, Dr McDonald and Maitland Hospital were based on the assumption that, among other things, Mr Wicks had been exposed to the trauma of serious crime scenes and that that trauma caused him to suffer post-traumatic stress disorder. That assumption was wrong and that reduced the probative value of their opinions.
The history recorded by Maitland Hospital that Mr Wicks had a “long history of being exposed to traumatic crime scenes during work as a police forensic cleaner” was false. The Arbitrator said this history was false if it meant that Mr Wicks had been physically exposed to traumatic crime scenes, but was accurate if it referred to exposure to those scenes through photos.
The hospital notes made no reference to Mr Wicks having been exposed to such scenes through photographs. They expressly refer to Mr Wicks having been “exposed to traumatic crime scenes during work as a police forensic cleaner” and to “disturbing memories & images from homicides & suicides he has had to industrially clean” (emphasis added). Mr Wicks never cleaned homicide or suicide scenes.
Dr Canaris accepted that Criterion A in the DSM-IV for the diagnosis of post-traumatic stress disorder existed in this case. Criterion A states:
“The person has been exposed to a traumatic event in which both of the following were present:
(1) The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self and others
(2) The person’s response involved intense fear, helplessness, or horror.”
Dr Canaris then recounted the worker’s cleaning duties and noted that Mr Wicks had recalled “unpleasant [traumatic] events from his time at work though he had significant difficulty articulating his experience”. Dr Canaris added:
“Nevertheless, he did seem to be saying that he witnessed situations that he associated with violence and serious harm to others that caused him considerable distress. However, if he did not clean up after crime scenes and did not have exposure to blood, body fluids, or photographs, then the diagnosis of post-traumatic stress disorder would be harder to sustain.” (emphasis added)
Mr Wicks did not clean up after crime scenes. He was, however, occasionally exposed to blood when he did emergency cleans of the cells (and other places) and he gave evidence that he was exposed to photographs of crime scenes. The evidence has not addressed whether, in the absence of direct exposure to serious crime scenes, exposure to photos and cleaning up blood in cells would be sufficient to sustain a diagnosis of post-traumatic stress disorder, or some other psychiatric condition.
The conclusion that Mr Wicks has post-traumatic stress disorder as a result of his experiences at work is also undermined by Dr McDonald’s history that, rather than feeling intense fear, helplessness or horror at the events to which he was exposed in the course of his employment, Mr Wicks had “enjoyed most aspects of his work”. Dr Canaris took a similar history, namely, that Mr Wicks enjoyed going to work.
The submission that neither Dr McDonald nor Dr Canaris took a history of an event (as opposed to seeing a photo) to which Mr Wicks responded with intense fear, helplessness or horror is correct. This issue has not been addressed in the evidence.
Mr Stockley urged me to read the introduction to the DSM-IV, which directs how it is to be used. The Court of Appeal considered the use of the DSM-IV in State of New South Wales v Seedsman [2000] NSWCA 119; 217 ALR 583, where Spigelman CJ made several important observations. At [114]–[122], his Honour said:
“114. DSM-IV is not a statutory formulation which a court must construe and decide whether the requirements are satisfied. It is, as its title suggests, a ‘diagnostic manual’ for clinical use. It contains within itself a number of explicit warnings against the kind of use to which the Appellant sought to put it and which emphasise that the criteria are only guidelines for professional judgment.
115. Under the heading ‘Cautionary Statement’, the authors say:
‘The specific diagnostic criteria for each mental disorder are offered as guidelines for making diagnoses, because it has been demonstrated that the use of such criteria enhances agreement among clinicians and investigators. The proper use of these criteria requires specialised clinical training that provides both a body of knowledge and clinical skills’.
116. Under the heading ‘Use of Clinical Judgment’ the authors say:
‘It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion. For example, the exercise of clinical judgment may justify giving certain diagnoses to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe.’
117. Finally, under the heading ‘Limitations of the Categorical Approach’, the authors say:
‘DSM-IV is a categorical classification that divides mental disorders into types based on criteria sets with defining features. ... A categorical approach to classification works best when all members of a diagnostic class are homogenous, when there are clear boundaries between classes; and when the different classes are mutually exclusive. Nonetheless, the limitations of the categorical classification system must be recognised.
In DSM-IV, there is no assumption that each category of mental disorder is a complete discrete entity with absolute boundaries dividing it from other mental disorders or from no mental disorder. There is also no assumption that all individuals described as having the same mental disorder are alike in all important ways. The clinician using DSM-IV should therefore consider that individuals sharing a diagnosis are likely to be heterogeneous even in regard to the defining features of the diagnosis and that boundary cases will be difficult to diagnose in any but a probabilistic fashion.’
118. As one commentator has noted:
‘The DSM represents guidelines that should be subjected to clinical judgment, adherence to the diagnostic criteria is not mandatory but advisory’. (Neal ‘The Pitfalls of Making a Categorical Diagnosis of Post Traumatic Stress Disorder in Personal Injury Litigation’ (1994) 34 Med, Science and the Law 117 at 121).
119. DSM-IV also contains reservations about its use in litigation which it is unnecessary to set out. The limitations of such use was also referred to in Vernon v Bosley (No 1) [1996] EWCA Civ 1310; [1997] 1 All ER 577 esp at 610–611 per Thorpe LJ. At 611 his Lordship rejected the proposition that the existence of a recognised psychiatric illness can be reduced to PTSD as defined in the DSM-IV or nothing.
120. Aspects of the application of Post Traumatic Stress Disorder in litigation remain controversial. (see, for example, Mendelsohn ‘Post Traumatic Stress Disorder and Litigation’ (1999) 15 Australian Forensic Psychiatry Bulletin 3; Freckelton ‘Post Traumatic Stress Disorder: A Challenge for Public and Private Health Law’ (1985) 5 Journal of Law & Medicine 252).
121. The issue is not one of labelling, but of establishing a psychiatric injury of some character. As Brennan J put it in Jaensch v Coffey (1984) 155 CLR 549 at 560:
‘Compensation is awarded for the disability from which the plaintiff suffers, not for its conformity with a label of dubious medical acceptability.’
122. In each case, the Court must deal with the particular submissions made to it.” (emphasis added)
I accept that the DSM-IV is only a guide that is subject to clinical judgment, and that adherence to the diagnostic criteria is not mandatory but advisory. However, the main issue in the present case is the accuracy of the histories upon which the doctors have based their conclusions. While those histories do not have to accord with complete precision with the facts, the inaccuracies in the present case are of such a magnitude, and are on such critical issues, as to undermine the weight to be attached to opinions based on them.

Though the Arbitrator acknowledged that the histories were inaccurate, on the basis that Mr Wicks had been exposed to an “accumulation of events” that were “dramatic and traumatic”, he still gave them full weight. That was an error. The evidence is that Mr Wicks occasionally cleaned blood, and other bodily fluids, and was exposed to photos of crime scenes. His doctors did not consider whether those matters, on their own, could have caused his psychological injury.
When asked to comment on Transfield’s medical case, which was that Mr Wicks had not been exposed to crimes scenes and did not have post-traumatic stress disorder, Dr McDonald said in his report of 5 April 2011 that he took the worker’s “word as being accurate when it came to the history that he reported”. He added that the worker’s history “as given by him” and his presentation were consistent with the diagnosis of a major depressive disorder and chronic post-traumatic stress disorder. The worker’s history to Dr McDonald was incorrect in a critical respect: Mr Wicks was not exposed to crime scenes.
The submission that the unpleasant experiences to which Mr Wicks was exposed were “symbolically associated with violent death” provides the worker with little assistance. As the preceding paragraph makes clear, Dr McDonald based his conclusions on the history he initially took from Mr Wicks. That history was wrong on the critical issue of the worker’s exposure to crime scenes. Dr McDonald failed to deal with the alternative history in Dr Akkerman’s report but continued to assume that the history from Mr Wicks was accurate.
With regard to the worker’s consumption of alcohol, I have been unable to find any evidence from Dr McDonald that supports the Arbitrator’s statement that the worker’s “consumption [of alcohol] was a symptom of his condition rather than the cause of it”. However, Dr Canaris said that “abusing alcohol” was “a very common comorbidity” with post-traumatic stress disorder. Assuming he meant that abusing alcohol commonly occurs with post-traumatic stress disorder, that does not support the Arbitrator’s statement, but suggests that the two conditions appear concurrently.
The Maitland Hospital notes have a detailed note of the worker’s use of alcohol. They record that, five years before his admission to hospital in December 2009, when the last of his children left home, he started drinking 15 gm of alcohol daily and increased two-and-a-half years ago to 60–150 gm daily “depending on mood”. Before that, he only had a couple of beers on social occasions. The hospital notes added “claims stress from work & memories of past would make him ↑ his alcohol intake so he would sleep better”. This history tends to support Dr Canaris’s opinion about the comorbidity of alcohol and post-traumatic stress disorder.
There is no evidence that the worker’s psychological condition has resulted from his alcohol consumption and there is no evidence to support Mr Perry’s submission at the arbitration (at T18.12) that “alcohol is very much in the centre of this case”. As Mr Stockley correctly submitted in reply at the arbitration (at T24.31), alcohol is one of the features of the worker’s presentation, but it does not answer the essential questions in this case. Whether Dr Canaris intended to say that increased consumption of alcohol resulted from the worker’s psychological condition is unclear. This issue requires further evidence before any concluded view can be expressed.
With respect to the suicides, it is necessary to distinguish between exposure to suicide scenes that Mr Wicks alleged he had to clean, and the suicide of police officers with whom Mr Wicks had been friends. It is accepted that Mr Wicks did not clean suicide scenes and, to the extent that the worker’s doctors assumed that he did, their opinions are further undermined.
With respect to the suicide of the police officers, Mr Wicks told Dr Canaris he started having bad sleeping habits two-and-a-half years ago when one of his mates, a policeman, committed suicide. Dr Canaris said that the worker’s distress was greatly magnified by learning of the suicide. He added that the suicide of a police officer, who Mr Wicks seemed to regard as a friend, seemed to coincide with the deterioration in his psychological health.
Dr McDonald said that Mr Wicks spoke of the enormous sense of loss he experienced with the suicide of an inspector at East Maitland and even more so from the unexpected suicide of an inspector from another station who had been his friend for over 20 years. He relied on the suicides (and other events) to support his opinion that Mr Wicks satisfied diagnostic Criteria A1 and 2 in the DSM-IV.
The Arbitrator found (at [71]) that Mr Wicks was “also affected by the suicide of at least one policeman at Maitland Police Station with whom he was friendly, and possibly more than one”. While this statement has some support in the evidence, there are a number of difficulties with it. How the suicide of police officers, or the worker’s reaction to those suicides, could be said to have been caused by or arisen out of his employment with Transfield is unclear and is not addressed in the Arbitrator’s decision. The worker’s pleadings referred to Mr Wicks having been “exposed to burnt and bloodied clothing from victims of murders/suicides”, but did not allege any injury as a result of the suicide of the police officers. It follows that the Arbitrator’s finding on this issue cannot stand.

OTHER MATTERS

Regardless of the outcome of the appeal, Mr Stockley sought costs. He submitted that Transfield’s initial notice of appeal did not identify any grounds of appeal and, as a result, the matter was listed for teleconference, further written submissions were required and the matter was then listed for oral hearing. Mr Perry made no submissions on this point.
Applying the principles in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at 97–98, a successful appellant employer should not be ordered to pay the costs of an unsuccessful respondent worker unless the employer has:
(a) been guilty of some sort of misconduct;
(b) by its lax conduct, effectively invited the litigation, or
(c) unnecessarily or unreasonably protracted the proceedings.
The appellant’s conduct in not properly identifying the grounds of appeal and in seeking to rely on additional evidence, and then withdrawing that application on the day of the hearing, has unnecessarily and unreasonably protracted the proceedings and required the worker’s legal advisers to undertake additional work that would not otherwise have been necessary. In these circumstances, it is appropriate that the appellant pay part of the respondent worker’s costs of the appeal. However, given the issues involved, it is highly likely that I would have listed the matter for an oral hearing in any event. In these circumstances, it is appropriate that the respondent worker recover part of his costs on appeal. I assess those costs at $1,200 plus GST.

CONCLUSION

I am satisfied that the Arbitrator erred in accepting the conclusions of Dr Canaris and Dr McDonald when those conclusions were based, in part, on a patently false history on a critical issue. The Arbitrator also erred in finding that Mr Wicks was also affected by the suicide deaths of police officers when that did not form part of his case. The parties agreed that, if I found error, the matter should be remitted to another Arbitrator for re-determination and that is the course I propose to adopt.

DECISION

The Arbitrator’s decision of 25 May 2011 is revoked and the matter is remitted to another Arbitrator for re-determination.

COSTS

The appellant employer is to pay part of the respondent worker’s costs of the appeal, assessed at $1,200 plus GST. Costs of the first arbitration, and of the second arbitration, are to follow the event of the second arbitration.

Bill Roche

Deputy President
4 November 2011

I, CATHRINE LOREN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE