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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWWCCPD 63
Decision Date: 4 November 2011

CaseChat Overview and Summary

Transfield Services (Aust) Pty Ltd was the appellant in this case, and Mr. Wicks, a former employee, was the respondent. The dispute centered around psychological injury, specifically post-traumatic stress disorder (PTSD), and the accuracy of the history taken by medical experts. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the Arbitrator correctly applied the DSM-IV in assessing the claimant's PTSD and if the Arbitrator adequately considered the history provided by the medical experts. The appellant argued that the Arbitrator had misapplied the DSM-IV, while the respondent contended that the Arbitrator's assessment was appropriate. The court needed to determine if the Arbitrator's decision was legally sound and whether it was open to the Arbitrator to make the findings they did.

The court found that the Arbitrator had not correctly applied the DSM-IV, as the manual is not meant to be used mechanically but rather as a guideline for professional judgment. The court highlighted that the DSM-IV contains explicit warnings against its use in a cookbook fashion, emphasizing that clinical judgment should inform the application of its criteria. The court further noted that the limitations of the categorical approach in the DSM-IV must be recognized, and that individuals with the same diagnosis can be heterogeneous. The court concluded that the Arbitrator's reliance on the DSM-IV as a definitive diagnostic tool was incorrect, and the Arbitrator's decision was therefore flawed. As a result, the Arbitrator’s decision was revoked, and the matter was remitted to another Arbitrator for re-determination. The appellant was also ordered to pay part of the respondent's costs of the appeal, with costs of the first and second arbitration to follow the event of the second arbitration.

Orders

Orders of the court

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

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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)

Ratio Decidendi

Legal Principle Established

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