Transfield Services (Aust) Pty Ltd v Wicks (No 2)
[2012] NSWWCCPD 77
•20 December 2012
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Transfield Services (Aust) Pty Ltd v Wicks (No 2) [2012] NSWWCCPD 77 | |||||
| APPELLANT: | Transfield Services (Aust) Pty Ltd | |||||
| RESPONDENT: | Noel Wicks | |||||
| INSURER: | Transfield Services (Aust) Pty Ltd | |||||
| FILE NUMBER: | A2-801/11 | |||||
| ARBITRATOR: | Ms K Haddock | |||||
| DATE OF ARBITRATOR’S DECISION: | 2 July 2012 | |||||
| DATE OF APPEAL HEARING: | 13 December 2012 | |||||
| DATE OF APPEAL DECISION: | 20 December 2012 | |||||
| SUBJECT MATTER OF DECISION: | Psychological injury; post-traumatic stress disorder; fresh evidence or additional evidence on appeal; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; disease; aggravation of disease; points not argued at arbitration; non-compliance with Practice Direction No 6 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | Oral | |||||
| REPRESENTATION: | Appellant: | Mr Beauchamp, instructed by Holman Webb Lawyers | ||||
| Respondent: | Mr Stockley, instructed by Steve Masselos & Co | |||||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 2 July 2012 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530. | |||||
INTRODUCTION
This is the second appeal between the same parties over the same subject matter. The essential issue is whether the respondent worker, Noel Wicks, received a psychological injury in the course of or arising out of his employment as a cleaner with Transfield Services (Aust) Pty Ltd (Transfield). In the first Arbitrator’s decision, delivered on 25 May 2011, Mr Wicks succeeded.
I upheld Transfield’s appeal against that decision and remitted the matter to another Arbitrator for re-determination (Transfield Services (Aust) Pty Ltd v Wicks [2011] NSWWCCPD 63). In a second arbitration, heard on 11 April 2012 and 31 May 2012, and decided on 2 July 2012, Mr Wicks again succeeded with his claim. Transfield has again appealed.
BACKGROUND
Mr 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 Pty Ltd (Tempo) and Mr Wicks’s employment transferred to that company. Later, Transfield took over the contract work performed by Tempo and Mr Wicks started work for that company on 29 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. He was also on-call 24 hours a day, seven days a week to perform additional cleaning duties, which he described as “forensic cleans” (referred to as “emergency cleans” in other parts of the evidence). They involved cleaning blood, vomit, faeces and urine from prison cells, the charge room and police vehicles.
In addition, Mr Wicks said that, in the 1980s and 1990s, that is, before he started work with Transfield, he was exposed to distressing photographs and other exhibits of crime scenes in the forensics room at the Maitland Police Station. That exposure stopped prior to him starting work for Transfield in January 2006, but he continued to manually dispose of blood stained exhibits up to at least September 2006 and most likely beyond that date, and continued to be exposed to blood and other bodily fluids in the course of his work up to December 2009.
Mr Wicks went on annual leave on 7 December 2009. He was reported missing on 8 December 2009 and was later picked up by police and admitted to Maitland Hospital as an involuntary patient on 9 December 2009, where he remained until 22 December 2009. He was again admitted to Maitland Hospital on 21 February 2010, but was discharged the following day. He has not returned to work since he stopped work on 7 December 2009.
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”
On 4 May 2010, Mr Wicks completed a report of injury form in which he said that he had experienced flashbacks from forensic cleaning and had sustained post-traumatic stress disorder (PTSD). He said the date of injury was 9 December 2009.
In his Application to Resolve a Dispute (the Application), Mr Wicks alleged that he suffered a psychiatric/psychological injury (PTSD). The following is recorded under “Describe how injury occurred”:
“The worker was 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 cleaning [sic] 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 the disease process – psychiatric up to Dec 2009.”
He claimed weekly compensation from the date of injury on 9 December 2009 to date and continuing together with hospital and medical expenses of approximately $6,000.
Transfield disputed liability on the ground that Mr Wicks had not been exposed to traumatic crime scenes and did not suffer from PTSD, or any other compensable condition, as a result of his employment with it between January 2006 and December 2009. Its case was that Mr Wicks had not been employed as a forensic cleaner and would only rarely have cleaned up blood, vomit and faeces.
Transfield’s medical case was from Dr Akkerman, psychiatrist, who stated that Mr Wicks suffered from a mild mood disorder in the form of an adjustment disorder, which was related to expected disciplinary action regarding Mr Wicks having given the public information about a proposed highway patrol random breath-testing operation (described in the evidence as a police “sting”).
FIRST ARBITRATION
The first Arbitrator found 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 that was a symptom of the worker’s condition rather than the cause of it.
He 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, his treating psychiatrist, sufficient to give rise to PTSD and a major depressive disorder secondary to the PTSD diagnosed by him. This diagnosis accorded with the opinion of Dr Canaris, a psychiatrist qualified on behalf of Mr Wicks.
FIRST APPEAL
In upholding Transfield’s appeal, I concluded that the evidence from Dr Canaris, Dr McDonald and Maitland Hospital had been based on the incorrect assumption that Mr Wicks had been directly exposed to the trauma of serious crime scenes and that that trauma caused him to suffer PTSD and that error reduced the probative value of their evidence.
The evidence was that Mr Wicks had never cleaned up after crime scenes but had been occasionally exposed to blood and other bodily fluids when he did emergency cleans in the cells (and other places) and had been exposed to photos of crime scenes. The evidence did not address whether, in the absence of direct exposure to serious crime scenes, exposure to photos and having to clean up blood (and other bodily fluids) in cells, would be sufficient to sustain a diagnosis of PTSD, or some other psychiatric condition.
Referring to State of New South Wales v Seedsman [2000] NSWCA 119; 217 ALR 583, I acknowledged that 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 appeal was the accuracy of the histories upon which the doctors had based their conclusions. While those histories do not have to accord with complete precision with the facts, the inaccuracies in the present case were of such a magnitude, and 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, he still gave them full weight because, in his view, Mr Wicks had been exposed to an “accumulation of events” that were “dramatic and traumatic”. That was an error. The evidence was that Mr Wicks occasionally cleaned blood, and other bodily fluids, and had been exposed to photos of crime scenes. His doctors did not consider whether those matters could have caused his condition.
With regard to Mr Wicks’s consumption of alcohol, I concluded that there was no evidence to support the Arbitrator’s statement that the worker’s “consumption [of alcohol] was a symptom of his condition rather than the cause of it”. Nor was there any evidence to support Transfield’s argument that alcohol was “very much in the centre of this case” and that Mr Wicks’s psychological condition had resulted from his consumption of alcohol. Further evidence was needed before any concluded view could be expressed on that issue.
As far as the Arbitrator had concluded that Mr Wicks’s condition had been caused or contributed to by the suicide deaths of police officers, with whom he had been friends, it was never part of Mr Wicks’s case that his injury had been caused by those deaths and the Arbitrator erred in taking them into account.
The parties agreed that, if I found the Arbitrator had erred, the matter should be remitted to a different Arbitrator for re-determination and that was the order I made.
SECOND ARBITRATION
Background
At the direction of the second Arbitrator, both sides filed additional evidence dealing with the issues identified in the first appeal. Mr Wicks’s allegations as to the cause of his injury were in the same terms as before (see [9] above), but he relied on additional evidence from Dr Canaris and Dr McDonald, and on an undated supplementary statement (the supplementary statement) he prepared that was served on Transfield on 23 December 2011.
Transfield relied on an amended s 74 notice dated 16 March 2012, which disputed liability on the following grounds:
(a) Mr Wicks had not received an injury as alleged or at all;
(b) in the alternative, if Mr Wicks suffered the psychological injury he asserted, his employment with Transfield was not a contributing factor or a substantial contributing factor to that injury;
(c) Mr Wicks had been employed by Transfield from 29 January 2006 as a commercial cleaner, not as a forensic cleaner, and at no time during his employment with it had he been exposed to any of the experiences identified by Dr Canaris and Dr McDonald as possible factors in the development of a psychiatric condition;
(d) all of the incidents Mr Wicks referred to in his supplementary statement, which he alleges contributed to his injury, occurred prior to 29 January 2006;
(e) the supplementary statement and the recent medical reports from Dr Canaris and Dr McDonald were all to the effect that Mr Wicks sustained injury “in the Forensics room” and, as that room did not exist during his period of employment with Transfield, if he sustained injury, which was denied, it was sustained in the employ of his previous employers;
(f) further, or in the alternative, if Mr Wicks’s injury consisted of a disease contracted by a gradual process, Transfield was not the employer who last employed him in employment to the nature of which the disease was due;
(g) Transfield did not employ Mr Wicks in employment that was a substantial contributing factor, or a factor at all, to the aggravation, acceleration, exacerbation or deterioration of a disease;
(h) liability for hospital and medical expenses was denied because they were “unreasonable” and/or they did not relate to any injury sustained during the course of employment with Transfield;
(i) if Mr Wicks became anxious or depressed as a result of hearing of the death of friends or acquaintances who were police officers, that was not an injury sustained by him within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act), and
(j) all of the incidents referred to in Mr Wicks’s supplementary statement occurred prior to him starting work for Transfield on 29 January 2006. As the additional evidence from Dr Canaris and Dr McDonald was to the effect that Mr Wicks had sustained his injury “in the Forensics room”, and as that room did not exist during Mr Wicks’s period of employment with Transfield, even if he sustained an injury, it was sustained in the employ of his previous employers.
Essentially, Transfield’s case was that, because the events and experiences that Mr Wicks said were injurious occurred prior to him starting work for it on 29 January 2006, he should have claimed against his previous employers. The s 74 notice added that the claim was frivolous and vexatious and brought without proper justification and Mr Wicks was not entitled to costs. If Mr Wicks continued with the proceedings, Transfield would rely on s 341 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) “in respect of any application for costs”.
The Arbitrator identified the issues to be:
“(a) Whether the applicant suffers from, or has ever suffered from, PTSD;
(b) Whether [Mr Wicks] sustained injury arising out of or in the course of his employment with [Transfield];
(c) Whether [Mr Wicks’s] employment with [Transfield] was a substantial contributing factor to any such injury;
(d) Whether, if [Mr Wicks’s] injury is a disease contracted by gradual process, [Transfield] was the employer that last employed him in employment to the nature of which the disease was due; and
(e) Whether [Transfield] employed [Mr Wicks] in employment which was a factor in the aggravation, acceleration, exacerbation or deterioration of any disease.”
Arbitration hearing
All references to the transcript for 31 May 2012 are to the amended transcript, which the Commission forwarded to counsel on 6 December 2012.
By leave, and over objection from Transfield’s counsel, Mr Perry, the Arbitrator permitted Mr Wicks to give oral evidence on 11 April 2012 dealing with matters that arose from evidence tendered by Transfield in its amended Reply lodged on 22 March 2012 in a memo from Mr Southam dated 13 September 2006 dealing with the system for disposing of exhibits in 2006. At the conclusion of that evidence, Mr Perry sought and was granted an adjournment on the ground that the oral evidence raised significant allegations with regard to s 16 of the 1987 Act, which deals with aggravation of a disease (T25.2 – 11 April 2012).
Mr Perry said that, based on Mr Wicks’s oral evidence, between January 2006 and September 2006 there was direct exposure to things that may or may not have caused some exacerbation of Mr Wicks’s condition. Mr Perry said that that allegation would be the subject of a “very strong challenge” (T25.19 – 11 April 2012) and that he would need an adjournment to get a statement from Mr Southam and that his client would be compromised without that material. He added that, without knowing what Mr Southam would say, it would be inappropriate to cross-examine (T26.2 – 11 April 2012). He acknowledged that he was under an obligation to get a statement from Mr Southam and serve it (T26.10 – 11 April 2012).
Over strong opposition from Mr Stockley, the Arbitrator adjourned the matter to 31 May 2012. Notwithstanding that the matter had been adjourned for Transfield to obtain a statement from Mr Southam, on 21 May 2012 Mr Wicks’s solicitor filed a statement from Mr Southam dated 15 May 2012.
On 31 May 2012, Mr Perry cross-examined Mr Wicks at length about matters in his supplementary statement. He particularly focused on the evidence in Mr Wicks’s statement that he started to have dreams and flashbacks in late 2005 and early 2006 (T5-6 – 31 May 2012). It was put to Mr Wicks that, when he started to have the dreams and flashbacks, that was when he started drinking more to forget what he had seen at work (T7.1 – 31 May 2012). Mr Wicks said that he drank to try to get some sleep and peace of mind (T7.16 – 31 May 2012), but drinking “makes you worse” (T7.9 – 31 May 2012).
Mr Perry also asked Mr Wicks about his statement that bloodied clothing was hung up to dry or laid on a large aluminium table. He agreed that the table was removed a couple of years after the forensic section moved to Newcastle and the room became administration offices (T11.22 – T12.9 – 31 May 2012).
With regard to Mr Southam’s statement of 15 May 2012, Mr Perry asked Mr Wicks if he had discussed with Mr Southam better, more hygienic, ways of disposing of exhibits (T12.25 – T13.23 – 31 May 2012). Significantly, notwithstanding that the matter had been adjourned for Transfield’s solicitor to obtain a statement from Mr Southam, and to allow Mr Perry to cross-examine Mr Wicks about his evidence dealing with Mr Southam’s memo of 13 September 2006, Mr Perry did not challenge any part of Mr Wicks’s oral evidence on that topic. Mr Stockley did not re-examine.
Submissions at arbitration
Mr Perry conceded that Mr Wicks was “traumatised” (T14.15 – 31 May 2012), but submitted that he was exposed to photographs of crime scenes and bloodstained items spread out on a large aluminium table in the forensics room in the 1980s and 1990s (T15 – T16.3 – 31 May 2012) and the trauma to which he had been exposed had had its effect by “late 2005, early 2006” (T16.16 – 31 May 2012) when he commenced to have dreams and flashbacks. Mr Wicks started drinking more heavily because of the dreams and flashbacks he had in 2006 (T16.32 – 31 May 2012).
Mr Perry then took the Arbitrator to Dr Akkerman’s evidence that it was possible, indeed likely, that Mr Wicks’s alcohol intake was a causative factor in his condition and might have been the only factor (T18.8 – 31 May 2012). Traumatised by what Mr Wicks saw, he had flashbacks in late 2005 and early 2006 “directly leading to much more heavy drinking … in a man who was already a regular drinker” (T18.22 – 31 May 2012). And, critically, in Mr Perry’s submission, “the drink made things worse” (T18.24 – 31 May 2012).
He added, at T18.27 – 31 May 2012:
“The flashbacks didn’t get better, it’s critically important. They only got worse. The drink had exactly the reverse effect, that’s increased drinking, had the reverse effect that for which Mr Wicks hoped. And now he’d wake up shaking, disturbed, all of the indicia of the medical condition which he brings to you. All of which he had fully blown in place complete prior to his commencement with Transfield.
If his injury occurred, his injury occurred in the course of and arising out of his employment with Tempo Australia Limited.”
Referring to Mr Wicks’s expert evidence, which Mr Perry said was to the effect that, because Mr Wicks from time to time smelt and saw blood, which reawakened traumatic experiences in the past, that was “simply indicative of a condition that was utterly in place by the end of 2005” (T19.15 – 31 May 2012). He understood Mr Wicks to say that almost anything could bring on the flashbacks and make him feel worse. It was “not strictly an employment thing” (T19.22 – 31 May 2012).
Dealing with the disease provisions, Mr Perry submitted that Mr Wicks’s condition was not a disease contracted by gradual process or an aggravation of a disease. From the start of 2006, Mr Wicks was traumatised and had flashbacks, dreams, was drinking, waking up, having more flashbacks, and was never in a staid condition from that time (T20.9 – 31 May 2012). He remained at work until he was suddenly hospitalised. But it was not the case where something traumatic occurred at work that took him straight to hospital. At hospital, Mr Wicks referred to traumatic scenes he had witnessed, which people misunderstood as having occurred when he attended crime scenes, rather than through exposure to photographs.
Mr Perry submitted that it was a Tempo case, not a Transfield case, and that which suggested that Mr Wicks was made worse in the employ of Transfield was “not convincing” (T20.32 – 31 May 2012). He dealt only briefly with Mr Southam’s evidence, saying that he gave evidence that the “unsatisfactory system” (for disposing of exhibits) (T21.6 – 31 May 2012) continued until “March 2006”, but it was not the case that Mr Wicks was exposed to horrific photographs while he worked for Transfield and there should be an award for Transfield.
On the question of incapacity, Mr Perry submitted that it was a case of partial incapacity not total.
In his submissions in reply, Mr Perry referred to the evidence Dr Canaris gave about the development of PTSD and alcohol exacerbating PTSD. He submitted that Mr Wicks’s profound distress (the flashbacks, dreams, and drinking) occurred before Mr Wicks started work with Transfield. Thus, Mr Wicks had “fully blown PTSD” (T31.19 – 31 May 2012) before he started with Transfield.
Mr Perry then referred to the Maitland Hospital notes that referred to Mr Wicks starting to drink 15 grams of alcohol per day five years ago, which Mr Perry said took you back to Mr Wicks’s statement, so the exacerbation took place when he increased his drinking to help him sleep better when dealing with stress from work and memories of the past (T32.9-17 – 31 May 2012). He said the overwhelming conclusion was the one Dr Canaris reached; Mr Wicks was injured, traumatised on Dr Canaris’s case (T32.31 – 31 May 2012), and it happened in the years leading up to the end of 2005, prior to the commencement with Transfield.
Arbitrator’s reasons
Accepting the evidence from Dr Canaris and Dr McDonald, the Arbitrator found (at [151]) that Mr Wicks suffers from PTSD and comorbid depression, with abuse of alcohol also a feature of his presentation, and that his condition is a disease of gradual process (at [161]).
The Arbitrator noted that, despite the error in the Maitland Hospital notes that Mr Wicks had attended at crime and murder scenes, those notes recorded symptoms of PTSD, such as flashbacks, nightmares, hyper vigilance, hyper arousal and avoidance behaviour. She accepted the evidence from Dr Canaris that Mr Wicks presented as a naïve person who was unlikely to have been familiar with the symptoms of PTSD and noted that Transfield had not suggested that Mr Wicks had not been frank in giving his evidence (at [152]).
The Arbitrator accepted (at [163]) the evidence from Dr Canaris that cleaning at a police station, and dealing with the detritus of major violence or physical injuries, would carry a substantial risk of eventually triggering an illness such as PTSD and, once his illness emerged, his continuing employment between 2006 and 2009 would have aggravated, accelerated, and exacerbated such a condition.
Dealing with Mr Perry’s submission that Mr Wicks’s condition was “fully blown” when he commenced work with Transfield, it having commenced with Tempo, the Arbitrator said that that did not “finally determine the matter” (at [165]). She accepted that Mr Wicks was called out on forensic cleans, which she said were more accurately called emergency cleans, on several occasions in 2008 and 2009, and that he cleaned blood and other bodily fluids on those occasions (at [168]).
The Arbitrator noted (at [169]–[171]) the conflict in evidence between Ms Heath and Mr Southam. Ms Heath, who is now a court process officer, but who had worked as a parking patrol officer at the relevant time, said that the recording, storage, transfer and disposal of exhibits never involved cleaning staff. In contrast, Mr Southam, the relieving sergeant in charge of the exhibits office between 2003 and 2007, referred in his memo of 13 September 2006 to blood stained exhibits being classified as contaminated waste, and gave evidence that Mr Wicks would assist him to dispose of the exhibits and manually handled some items. Mr Southam’s uniform was often soiled by blood or seepage. If he did not want to touch something, he asked Mr Wicks to do it.
The Arbitrator said (at [172]) that Mr Wicks confirmed in his oral evidence that he had regularly seen material of the type referred to by Mr Southam in his memo of 13 September 2006. She added that, while the material was enclosed in bags, it did not remain so when Mr Wicks disposed of it.
She also referred (at [173]) to the evidence of another exhibits officer, Mr Gout, who gave evidence that, before the introduction of specialised bins, bins sometimes overflowed with items, including blood stained clothing. Mr Wicks transferred the items to other bins, and also cleaned blood and other bodily fluids from the custody area.
On the issue of whether the cleaning staff had ever been involved in disposing of exhibits, the Arbitrator said (at [174]) that she preferred the evidence of Mr Southam and Mr Gout to that of Ms Heath. Her reason was that, as exhibits officers, they were better placed than Ms Heath, a parking patrol officer, to know the procedure involved. She also observed that Mr Southam had not seen or spoken to Mr Wicks since about 2007 and had no reason to give other than truthful evidence.
The Arbitrator noted (at [175]) the evidence from Dr Canaris that he had dealt with patients who had the symptoms of PTSD, but whose trauma seemed to emanate from contact with the detritus of serious crime, rather than direct exposure to it. Mr Wicks reported distress triggered by the smell of blood and Mr Southam’s evidence confirmed that Mr Wicks was exposed to the detritus of violence while working for Transfield.
The Arbitrator referred (at [176]) to the evidence of Dr Canaris that a criterion for the diagnosis of PTSD was being “confronted” with an event and that sighting physical evidence of such an event, rather than being exposed to the event, would suffice. He added that it was common for workers to carry the burden of exposure to trauma for many years, but cumulative exposure took its toll.
The Arbitrator accepted that that was what happened to Mr Wicks and that he started to feel distress in 2005 or 2006 and had symptoms of PTSD. He continued to work and had continued exposure to “distressing material and events” ([177]). She concluded that Mr Wicks’s injury was due to the aggravation, acceleration, exacerbation and deterioration of the disease, to which his employment with Transfield was a substantial contributing factor.
Adopting the words of Burke CCJ in Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88 (which applied the principles in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch)), the Arbitrator said (at [178]) there has been an aggravation or acceleration of a disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker. In Mr Wicks’s case, while employed by Transfield, he had gone from being a functioning employee, albeit with some psychological symptoms, to a person who was suicidal, hospitalised and unable to work. As Mr Wicks became incapacitated for work on 9 December 2009, that was the deemed date of injury.
With regard to Mr Wicks’s consumption of alcohol, the Arbitrator said (at [154]) that both Dr Canaris and Dr McDonald regarded it as a symptom, or a consequence of the injury, rather than a cause of it.
After referring to the evidence on incapacity, the Arbitrator found Mr Wicks to be totally unfit for work since 9 December 2009 to date and continuing.
ISSUES IN DISPUTE ON APPEAL
The issues in dispute in the second appeal were identified in a document headed Amended Grounds of Appeal lodged on 13 September 2012. It was alleged that the Arbitrator erred in:
(a) finding that Mr Wicks’s abuse of alcohol was a consequence of his injury, rather than a cause (abuse of alcohol);
(b) finding that Mr Wicks is suffering a disease of gradual process as a result of an accumulation of events in the course of his employment at the Maitland Police Station, when the evidence supporting such a conclusion is flawed (finding of disease);
(c) accepting that the evidence of Mr Southam, Mr Wicks and others, sufficiently established that Mr Wicks’s disease was aggravated during the course of his employment with Transfield on the basis of having been exposed to “an ambiance [sic] of the aftermath of serious violence” on the basis that Mr Wicks had assisted Mr Southam in the disposal of exhibits between January 2006 and November 2006, when there was no actual evidence of the exhibits disposed of at that time led by Mr Wicks and in light of the evidence of Ms Heath and Ms Webster to the contrary and/or based on his work cleaning up police cells at Maitland Police Station (aggravation of disease);
(d) concluding that Mr Wicks was totally incapacitated for work and rejecting the opinion of Dr Akkerman in respect of Mr Wicks’s capacity for work when neither Dr McDonald nor Dr Canaris had recently examined Mr Wicks as Dr Akkerman had done (incapacity);
(e) preferring the evidence of Dr McDonald, given that she found that the events after January 2006 aggravated, accelerated or exacerbated Mr Wicks’s psychiatric disease whilst Dr McDonald found that his disease commenced after January 2006 (Dr McDonald’s evidence), and
(f) preferring the reports of Dr Canaris and Dr McDonald as these reports suffered forensic inadequacies (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) (Makita v Sprowles).
At the oral hearing of the appeal, Mr Beauchamp, counsel for Transfield on the appeal, submitted that there were really two grounds, the fresh evidence point and the Makita point. Notwithstanding this statement, Mr Beauchamp only formally withdrew the first ground of appeal. Regrettably, given the way the appeal was presented, there is some overlapping of issues and repetition of certain points.
FRESH EVIDENCE
Chronology after the appeal
Before dealing with the application to rely on fresh evidence, it is convenient to set out a chronology of events after the Arbitrator’s decision on 2 July 2012.
On 30 July 2012, Transfield’s solicitor, Ms Sutton, partner with Messrs Holman Webb, lodged with the Commission an Appeal Against Decision of Arbitrator (the Notice of Appeal), which stated that no application was made to rely on fresh evidence or evidence in addition to or in substitution for the evidence at the arbitration. This document identified four grounds of appeal, but included no submissions in support of those grounds, stating that submissions would be provided following receipt of the transcript. It should be noted that, consistent with Practice Direction No 6, the grounds of appeal and submissions in support of those grounds should have been filed with the Notice of Appeal.
On 1 August 2012, the Commission issued a direction setting a timetable directing that, among other things, Transfield was to lodge with the Commission by 22 August 2012 a Certificate of Service certifying service of the Notice of Appeal, and giving Mr Wicks until 12 September 2012 to lodge his Notice of Opposition.
Also on 1 August 2012, the Commission served both parties’ solicitors with a copy of the transcript of the arbitration.
On 21 August 2012, Ms Sutton wrote to the Commission stating that counsel had advised, “he needs to travel overseas from today returning on 2 September 2012 and he has requested that we approach the Commission for an extension of 10 days in which to complete our client’s grounds of appeal and submissions on the appeal”. Ms Sutton sought until 13 September 2012 to lodge the document.
In response to the request for an extension of time in which to complete the grounds of appeal and submissions, Margot Undercliffe, acting on behalf of the Registrar, issued a direction on 21 August 2012 extending time for Transfield to lodge its submissions in support of the Notice of Appeal until 13 September 2012, for Mr Wicks to lodge his Notice of Opposition by 11 October 2012, and for Transfield to lodge submissions in reply, if required, by 25 October 2012.
On 13 September 2012, Ms Sutton lodged a document headed Transfield’s Submissions on Appeal and Amended Grounds of Appeal. These submissions did not comply with Practice Direction No 6 in that they did not even attempt to address the grounds of appeal and made no reference to any alleged error by the Arbitrator. That was completely unacceptable.
In non-compliance with Practice Direction No 6, on 24 September 2012 Ms Sutton lodged an Application to Admit Late Documents in which she sought to rely on the documents from Austrace dated 15 and 30 August 2012 as late documents, as if the appeal was merely a continuation of the arbitration hearing and the dispute had not been the subject of a determination.
On 25 September 2012, Margot Undercliffe, again acting on behalf of the Registrar, returned to Holman Webb the Application to Admit Late Documents lodged on 24 September 2012 and provided the solicitors with a copy of Practice Direction No 6.
On 25 October 2012, the date by which Transfield’s submissions in response to the respondent worker’s Notice of Opposition should have been lodged, Ms Sutton wrote to the Commission and advised that Transfield had obtained fresh evidence relating to Mr Wicks’s activities and that she had requested a further report from Dr Akkerman “in relation to same” and had been informed that Dr Akkerman would complete his report upon his return from leave on 5 November 2012. She advised that she was awaiting that report to finalise Transfield’s submissions in response and in respect to the admission of fresh evidence on appeal. She sought an extension of time to file Transfield’s submissions in response until 19 November 2012.
On 26 October 2012, the appeal was allocated to me. I issued a further direction on 26 October 2012 stating that, notwithstanding that Transfield had sought and been granted an extension of time in which to complete its grounds of appeal and submissions in support, the submissions filed by Ms Sutton did not comply with Practice Direction No 6, which states that, among other things, submissions must deal with each ground of appeal and include page references to the evidence and transcript where necessary.
Because of the unsatisfactory submissions filed by Ms Sutton on 13 September 2012, I directed Transfield to file and serve on or before 19 November 2012 “detailed and comprehensive submissions with full references to the evidence and transcript in support of the amended grounds of appeal filed on 13 September 2012”, together with a complying chronology. The direction also allowed for submissions in reply by Mr Wicks and for submissions in response by Transfield.
On 19 November 2012, Ms Sutton lodged a document headed “Transfield’s Submissions Pursuant to Direction of the Commission”. Mr Beauchamp prepared these submissions though Ms Sutton has signed them. Apart from a few minor changes, these submissions are similar to the submissions Ms Sutton lodged on 13 September 2012. These submissions touched on the Makita point, but made no relevant submissions on the other grounds of appeal.
Included in the 19 November 2012 submissions, Transfield sought to tender the following fresh evidence on appeal:
(a) two surveillance reports from Austrace Investigations Pty Ltd (Austrace) dated 15 August 2012 and 30 August 2012 which summarise observations of Mr Wicks’s activities over several days between 8 August 2012 and 29 August 2012, together with four DVDs of Mr Wicks’s activities on those days, and
(b) a report from Dr Akkerman dated 14 November 2012.
The submissions filed on 19 November 2012 said nothing in support of the application to tender fresh evidence save that Transfield sought to rely on the evidence “either on appeal or by way of reconsideration”. It should be noted that there is no application for reconsideration before the Commission. At the oral hearing of the appeal, Mr Beauchamp said that it was felt that it was imperative to “act quickly” with the fresh evidence.
The legislation and authorities
The introduction of fresh evidence or evidence in addition to or substitution (fresh evidence) for the evidence at the arbitration is governed by s 352(6) of the 1998 Act, which states:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The first point to note about this provision, which applies to Arbitrators’ decisions made after 1 February 2011, is that it is in quite different terms to the provision considered by the Court of Appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158; 4 DDCR 634.
The second point is that the admission of fresh evidence on appeal requires leave and is therefore discretionary. The Commission is not to grant leave to a party to rely on fresh evidence on appeal unless it is satisfied that:
(a) the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned, or
(b) failure to grant leave would cause substantial injustice in the case.
Consistent with the subsection, and the principles discussed in Akins v National Australia Bank (1994) 34 NSWLR 155 and Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116, an applicant seeking leave to rely on fresh evidence (or evidence in substitution) must establish:
(a) that the evidence could not have been obtained with reasonable diligence for use at the arbitration;
(b) that the evidence is such that there is a high degree of probability that there would be a different result if the evidence had been available to the Arbitrator (whether the further evidence would have produced a different outcome must be addressed in the context of the grounds of appeal as well as separately from those grounds: Tjiong v Tjiong [2012] NSWCA 201 Meagher JA (Whealy and Barrett JJA agreeing) (Tjiong) at [14]);
(c) that the evidence is credible, or
(d) that, in the circumstances of the case, it is just to admit the evidence.
In the event that evidence sought to be tendered is evidence that was available to the party, or could reasonably have been obtained by the party, before the proceedings concerned before the Arbitrator, then, in addition to the matters identified in the preceding paragraph, it will be necessary to establish that the failure to grant leave to admit the evidence will cause “a substantial injustice in the case”.
Essentially, the power to admit fresh evidence (or additional evidence) on appeal exists to serve the demands of justice. In an appeal from the Full Court of the Family Court of Australia dealing with what is arguably a broader provision relating to fresh evidence on appeal (s 93A(2) of the Family Law Act 1975) than exists in s 352(6), McHugh, Gummow and Callinan JJ said in CDJ v VAJ [1998] HCA 67; 197 CLR 172 (at [111]):
“Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.”
Submissions
Mr Beauchamp submitted that the fresh evidence was important, but how important depended on what Dr Canaris and Dr McDonald thought about it. He noted that Dr Canaris referred to Mr Wicks only playing bowls with his boys and that he did not play by himself because he did not feel comfortable going out. He said that both Dr Canaris and Dr McDonald had a history that Mr Wicks had stopped drinking and that he was inhibited and did not go out. He added that, if the diagnosis of PTSD was wrong and the incapacity does not result from the condition, then causation has to be re-examined.
On the question of why the evidence was not obtained before the arbitration, Mr Beauchamp said that Mr Wicks had been placed under surveillance prior to the arbitration hearing but had only been sighted once when he was talking to neighbours. He had not been sighted on other occasions when he had been followed, but Mr Beauchamp did not indicate the period of surveillance.
Mr Stockley opposed the introduction of the fresh evidence, noting there had been no attempt to comply with the leave requirements in s 352(6). He submitted that whether Mr Wicks played bowls did not feature at the second arbitration, but was something that Mr Wicks had been cross-examined about at the first arbitration and it was not a matter that supported a finding of error. He also questioned the relevance of the film, noting that it may indicate a change in circumstances and, if so, Transfield has other remedies and a s 352 appeal is not the appropriate vehicle.
Dealing with the application to tender Dr Akkerman’s report, Mr Stockley said that an attempt to get another medical opinion into evidence was not a proper basis to allow fresh evidence on appeal. He added that he prepared his submissions in opposition to the appeal on 9 October 2012 and that Ms Sutton retained Dr Akkerman on 12 October 2012. He observed that the questions directed to Dr Akkerman seemed to be an attempt to deal with his submissions and that that underscored the lack of utility in the process. The marital disharmony and the alleged issue of police discipline were not issues that had been agitated at the second arbitration. He said that the fresh evidence had no probative value.
Discussion and findings
The surveillance reports and video
The first surveillance report is dated 15 August 2012, approximately six weeks after the Arbitrator’s decision delivered on 2 July 2012. Mr Wicks was placed under surveillance for a total of 24 hours over four days between 8 August 2012 and 11 August 2012 inclusive. No relevant activities were reported, but it was noted that “information received reveals that [Mr Wicks] is a member at the Raymond Terrace Bowling Club” and that he was registered to play on 18 August 2012.
The second report from Austrace summarised 50 hours of surveillance undertaken between 18 August 2012 and 29 August 2012. The operative videoed Mr Wicks playing lawn bowls on 18 August 2012 and 29 August 2012. He was also reported to have been seen “having a drink” at the Club while he “waited for his turn” (to bowl). Also attached to the reports from Austrace were copies of a draw for the 2012 Club Fours Championship at Mr Wicks’s club, which reveal that Mr Wicks competed in that event.
The application to rely on the surveillance reports and the video on appeal is refused for the following reasons.
First, there is no satisfactory explanation of what steps were taken to obtain this kind of evidence prior to the two arbitrations. The only “explanation” came from Mr Beauchamp during the hearing of the appeal. He revealed, for the first time, that Mr Wicks had been previously placed under surveillance, but had no details of when or for over what period. In breach of cl 46 of the Workers Compensation Commission Regulation 2010 (the 2010 Regulation), Transfield did not serve the previous surveillance reports on Mr Wicks. Given that Transfield was well aware that Mr Wicks played bowls (as it was referred to in Dr Akkerman’s reports of 9 March 2011 and 14 February 2012), I am not satisfied that, with reasonable diligence, the evidence in the surveillance reports could not have been obtained prior to the arbitration.
Second, the evidence is of limited probative value. Mr Beauchamp relied on the reports on three issues, first, whether Mr Wicks had stopped drinking, as he claimed, second, whether he was as socially isolated as he had told the doctors, and, last, whether Mr Wicks was totally incapacitated.
Mr Beauchamp referred to the following history recorded by Dr Canaris in his report of 21 September 2010:
“His sleeping problems left him ‘just tired most of the time but before December [2009] I was still having a game of bowls – I enjoyed having a drink – everything’s changed – I just haven’t gone out for a game of bowls – I’ve stopped drinking…’
Back then, he drank ‘probably about four or five schooners a day – it was more of a social thing with mates – roll up a few games of bowls – these days, the only time I play bowls is with me boys – I don’t play bowls by meself – I just don’t feel comfortable going out – I feel like I gotta explain meself … I don’t want to – that’s why I don’t go out – it’s not a physical problem that people can see – I don’t want to be known as a layabout or bludger.”
This history must, however, be read with the other evidence in the case. Consistent with this history, Mr Wicks said at the first arbitration that he did not go out by himself anywhere any more, but he played bowls with his son and son-in-law, which was the only outlet he had (T12.55 – T13.11 – 4 May 2011). (The parties agreed that evidence at the first arbitration was evidence at the second (T2.8 – 11 April 2012)).
Dr Akkerman recorded on 9 March 2011:
“He plays lawn bowls. He plays with his son and son-in-law. He says he does not play with anybody else. He goes in competitions with them.”
In his report of 14 February 2012, Dr Akkerman said that Mr Wicks “still plays bowls but he says he does this less now”. He did not record how often he played.
The other relevant histories are from Dr McDonald in his report of 30 November 2010 where, after noting that Mr Wicks had worked all his life (having left school at the age of 14), he recorded that Mr Wicks felt he had very little purpose or pleasure, though he was able to enjoy contact with his family. Mr Wicks had lost confidence and did not like going out unless he was by a close family member. He had become a recluse. He often thought about suicide and “without the family I wouldn’t be here”. Dr Canaris recorded in his September 2010 report that Mr Wicks spoke of isolating himself, saying that he just wanted to “sit and sulk”. The surveillance evidence, when considered with Mr Wicks’s oral evidence at the first arbitration, is not necessarily inconsistent with this history.
Dr Canaris and Dr McDonald had histories that Mr Wicks had stopped drinking after March 2009, though Dr Canaris described his period of alcohol abuse (which tended to come on in the context of a co-existing mood or anxiety disorder) as “now in apparent remission”. Dr Akkerman said that he detected alcohol on Mr Wicks’s breath at his examination on 9 March 2009.
The fact is that Mr Wicks has never denied that, since December 2009, he has played bowls. Whether Mr Wicks’s son or son-in-law were present when he was observed playing bowls in August 2012 is not known, but is not determinative in any event. Dr Akkerman’s history that Mr Wicks did not play with anyone else was inconsistent with the next sentence in his report, which asserted that Mr Wicks played in competitions. Clearly, to play in competitions, Mr Wicks would have to play with other competitors. This inconsistency was not explored in cross-examination. Indeed, the issue of Mr Wicks playing bowls was not raised at the second arbitration, though Transfield was well aware of it (see [88] above).
The evidence in the second surveillance report that Mr Wicks was “having a drink” at the Club while he “waited for his turn” (to bowl) is also of extremely limited, if any, probative value. It is not known what he was drinking or how many drinks he had.
The fact that Dr McDonald had a history that he had stopped drinking may or may not be inconsistent with Mr Wicks’s current circumstances. The evidence that Mr Wicks may still have been drinking after March 2009 was available to the Arbitrator from Dr Akkerman, who said that he smelt alcohol on his breath at the examination on 9 March 2011. Dr Canaris saw and commented on this report, but made no reference to Dr Akkerman’s observation about smelling alcohol on Mr Wicks’s breath. Moreover, the fact that Mr Wicks’s alcohol abuse was “in remission” does not exclude the possibility that he may still have had a social drink. Indeed, he conceded that he has a “couple of beers every now and again” when cross-examined at the first arbitration (T12.36 – 4 May 2011). The surveillance evidence therefore adds nothing that was not already before the Arbitrator.
If Mr Wicks’s circumstances have changed to any significant extent (with regard to his ability to socialise and/or his drinking habits), and, on the fresh evidence sought to be tendered on appeal, I am not satisfied that they have, Transfield has other (more appropriate) remedies it can pursue. Unlike common law verdicts, where damages are usually assessed in one lump sum, an award of weekly compensation is an ongoing entitlement that is subject to review and, in limited circumstances, reconsideration. Though the Workers Compensation Legislation Amendment Act 2012 has repealed the review provision in s 55 of the 1987 Act, other provisions allow Mr Wicks’s weekly compensation to be re-assessed without the need for a re-hearing. An appeal under s 352, which is restricted to the identification and correction of error, is not the appropriate avenue to pursue a change in circumstances argument.
Third, while the evidence in the surveillance reports may well be credible, its weight depends very much on other evidence called in support or response to it. The only other evidence presented in support is the evidence from Dr Akkerman, which, for reasons explained below is also of no probative value.
Fourth, in the circumstances of this case, it is not in the interests of justice that the evidence be admitted on appeal. In making this statement I have had regard to the history of the matter and, in particular, to the fact that there have been two arbitrations and two appeals, and to the fact that whether Mr Wicks played bowls or socialised was not the subject of cross-examination or submissions at the second arbitration. If the fresh evidence were admitted on appeal, procedural fairness would require that Mr Wicks be given the opportunity to respond to it. That would require a third arbitration in circumstances where I am not satisfied that the fresh evidence would have been likely to produce a different result if it had been available at the second arbitration. That would be fundamentally unfair to Mr Wicks.
Last, having considered the content of the surveillance reports (noting that I was not asked to view the videos and that it was not suggested that the reports did not provide a fair summary of the videos), I am of the view that the surveillance evidence neither undermines Mr Wicks’s case nor advances Transfield’s case. It is not evidence that creates a high probability that there would have been a different result if it had been available to the Arbitrator. It shows Mr Wicks doing something that he had readily admitted doing: playing bowls. The evidence of him drinking is of limited weight, at best, and, in any event, as noted above, adds nothing to the evidence that was already before the Arbitrator in the transcript of the first arbitration. Transfield has not established that the exclusion of the surveillance reports (and video evidence) would cause any injustice, let alone a substantial injustice.
Dr Akkerman’s report of 14 November 2012
Dr Akkerman prepared his report of 14 November 2012 in response to a letter from Ms Sutton dated 12 October 2012. The request included a copy of the Arbitrator’s decision, the surveillance reports and the video evidence. Dr Akkerman did not view the videos, but read the reports from Austrace. He said that “lawn bowls requires sustained concentration and requires extensive socialising” and neither of those were “consistent with severe mental illness Mr Wicks claims to have”. The relevance of these comments is considered under “Incapacity” below.
Dr Akkerman’s report included the following:
“You asked me to provide an opinion as to the following issues:
·If it is the case that Mr Wicks was suffering from the effects of Post Traumatic Stress Disorder prior to 29 January 2006 due to the incidents at work with his then employer, Tempo, and there were no incidents at work following that time with your client of a similar nature, would his drinking have contributed to a deterioration of his condition to lead to hospital admission in 2009 and/or the alleged breakdown at that time.
Alcohol abuse in vulnerable subjects can lead to a variety of psychological conditions and it is certainly possible that his deterioration was caused by Alcohol Abuse.
·If it was not the effects of increased alcohol consumption from 2006 onwards, what in my view would have contributed to the hospital admission in 2009 assuming there was a relationship breakdown with his wife or altercation with the Police regarding the setting up of an RBT unit at the club.
These are both issues that are severe stressors and they would have contributed as well. It is quite possible that his increased alcohol intake was actually as a consequence of the relationship breakdown and the issues with the police.
·Dr Canaris and Dr McDonald state that the injury is all due to his employment conditions with your client and seem to pay no regard to the worker’s statement that everything occurred prior to January 2006, that is, prior to his employment with your client. You ask me to provide my comments as to the reliability of these opinions in light of Mr Wicks’s own account of his experiences.
As I expressed before, I believe that Dr McDonald and Dr Canaris are not correct in totally attributing his symptoms to his experiences at work. I have described in some detail in my earlier reports.
I hope this report is of assistance to you. If any aspect of this report requires clarification please do not hesitate to contact me.” (emphasis included in original)
The report from Dr Akkerman is unsatisfactory in several respects and lacks probative value. The first issue on which Ms Sutton asked Dr Akkerman to provide an opinion involved assumptions that are not supported by the evidence. They were that Mr Wicks was suffering the effects of PTSD prior to 29 January 2006, that the condition was due to incidents with Tempo, and that there were no incidents at work following 29 January 2006 with Transfield of a similar nature.
Exactly when Mr Wicks started to suffer the effects of PTSD is unclear. He gave evidence that “[i]n about late 2005 early 2006” he started to have dreams and flashbacks of things he had seen at work. When cross-examined about whether his flashbacks were of things listed at page four of his supplementary statement, which referred to things that had happened in the 1980s, Mr Wicks said “not necessarily, there’s other things in 2005, 2006 … that happened” (T5.19 – 31 May 2012). He added, “things that happened in 2005/2006 just remind you of things that happened years ago. Everything’s like de Sauvé [sic, déjà vu]. This thing happened back then, it’s happening again now” (T6.3 – 31 May 2012). (It should be remembered that Mr Wicks was working for Transfield in 2006.)
Dr Canaris recorded that Mr Wicks did not begin to “feel distress” until around 2006. Dr Akkerman did not accept that Mr Wicks had PTSD and therefore had no history of when the condition started. Dr McDonald seems to have accepted that the symptoms of PTSD started after 2006. The notes from Maitland Hospital recorded that Mr Wicks’s symptoms commenced two years prior to December 2009.
It follows that Ms Sutton’s assertion that Mr Wicks was suffering the effects of PTSD before 29 January 2006 may not have been accurate. Her statement was, however, consistent with a submission made by Mr Perry at the second arbitration, namely, that Mr Wicks’s condition was “fully blown” and “complete” (T18.34 – 31 May 2012) prior to starting with Transfield. The Arbitrator dealt with that submission (at [165]) where she said, “the fact that the applicant may have had PTSD when he commenced work with the respondent does not finally determine the matter”. That statement has not been challenged on appeal and, in any event, was perfectly correct.
More importantly, the statement that there were “no incidents” at work following 29 January 2006 with Transfield of a “similar nature” was inaccurate. While it is not known exactly what “incidents” Ms Sutton was referring to, the evidence established that Mr Wicks was exposed to blood and other bodily fluids for the whole time he worked for Transfield and that he disposed of blood stained exhibits until at least late 2006, if not later. Mr Wicks reported distress triggered by the smell of blood and Dr Canaris gave evidence, which the Arbitrator accepted, that the sighting of physical evidence of violence, rather than being exposed to the event itself, would suffice to satisfy the first criterion for the diagnosis of PTSD, namely, having been “confronted” with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others (this issue is discussed further at [194] and [195] below).
Given that the underlying assumptions Ms Sutton asked Dr Akkerman to make were inaccurate, his opinion has no weight. Moreover, Dr Akkerman’s opinion that alcohol abuse in vulnerable subjects can lead to a variety of psychological conditions and that it is “possible” that Mr Wicks’s deterioration in 2009 was caused by alcohol abuse is of no probative value, something that Mr Beauchamp acknowledged at the hearing. Moreover, it took the matter no further than Dr Akkerman’s previous evidence, which the Arbitrator rejected.
The second issue on which Dr Akkerman commented was, assuming that Mr Wicks’s condition was not due to the effects of increased alcohol consumption from 2006, what would have contributed to his admission to hospital in 2009, assuming there was a relationship breakdown with his wife or an altercation with the police. It should be noted that Mr Perry did not cross-examine Mr Wicks on either of these matters, and made no submissions on them. Not surprisingly, the Arbitrator did not deal with them.
In his report of 9 March 2011, Dr Akkerman said that Mr Wicks suffered from an adjustment disorder that was related to the expected disciplinary action regarding tipping off the public over proposed police action and that s 11A “was the cause of the condition”. As s 11A had never been part of Transfield’s defence, the doctor’s reference to it was more than a little surprising and suggested that he had gone beyond the role of a medical expert.
The evidence on the alleged altercation with the police is from Ms Wynands and Ms Heath. Ms Wynands said in her statement of 26 July 2010 that Mr Wicks had been reprimanded because he had warned members of the Bowling Club of an expected “sting” comprising random breath testing at Beresfield. She did not say when he was reprimanded, nor by whom. Ms Heath gave similar evidence. Mr Wicks’s response was that neither Ms Wynands, nor anyone else, had reprimanded him for giving out confidential police information. He added that he would not have had his job for so many years if he had.
Contrary to the assumption put to Dr Akkerman by Ms Sutton, there is no evidence that Mr Wicks’s marriage broke down, though there is evidence that he had had an affair and that his wife had found out. Dr Akkerman said in his report of 9 March 2011 that there may have been a separation from Mr Wicks’s wife at some point, though he did not say when that was. In his report of 29 April 2011, Dr Akkerman said 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. In his report of 14 February 2012, prepared after he had re-examined Mr Wicks, Dr Akkerman recorded that Mr Wicks “gets on well with his wife” and that they had been together for 39 years. This was consistent with the history recorded by Dr McDonald in his report of 30 November 2010 that the relationship between Mr Wicks and his wife had been a good one.
As there is no satisfactory evidence of an “altercation with police”, or of a permanent relationship breakdown with Mr Wicks’s wife, Dr Akkerman’s opinion on these points has no weight. More importantly, there is no persuasive evidence to support the conclusion that either of these matters played any role in the development of Mr Wicks’s condition. In any event, even accepting that these matters “contributed” to the condition, an injury can be caused by several factors and employment only has to be a substantial contributing factor, not the substantial contributing factor.
The third issue on which Ms Sutton asked Dr Akkerman to comment, namely, the assertion that Dr Canaris and Dr McDonald said that Mr Wicks’s injury was “all due to his employment conditions” with Transfield, was also incorrect. Dr Canaris said that the employment between 2006 and 2009 “would be substantially more probably than not the predominant cause of his condition” and that cleaning a police station and “dealing with the detritus of major violence or physical injuries would carry a substantial risk of eventually triggering” PTSD. Dr McDonald said that he was unaware of other stressors (affecting Mr Wicks) and, if there were other stressors, he doubted that they were of a significance equal to that of his continuing exposure to events, images, and other stimuli and cues which evoked traumatic memories from the many years of his work as a cleaner at police stations.
The above analysis demonstrates that the assumptions put to Dr Akkerman were not accurate and, consequently, his opinions are of no value. They certainly do not provide any persuasive evidence that justifies a different outcome. The issue of Mr Wicks’s consumption of alcohol, in particular, was fully canvassed in the evidence before the Arbitrator and Dr Akkerman’s further opinion on this issue adds nothing to his previous evidence, which the Arbitrator did not accept.
I do not accept Mr Beauchamp’s submission that, if the diagnosis of PTSD was wrong and the incapacity does not result from the condition, then causation has to be re-examined. Dr Akkerman’s further evidence does not undermine the diagnosis of PTSD and does not come close to justifying a re-examination of the causation issue. Before the Arbitrator, Transfield had limited credible evidence on the question of diagnosis and Mr Perry did not seriously challenge the diagnosis of PTSD, but argued that the condition had been caused by Tempo. Dr Akkerman’s further report has not provided any credible evidence on which to challenge the diagnosis of PTSD.
In summary, I refuse the application to rely on Dr Akkerman’s report as fresh evidence on appeal because:
(a) it adds nothing to the evidence already tendered and, for the reasons explained above, is of no probative value;
(b) if the report were admitted, and given some weight, fairness would require that Mr Wicks be given the opportunity to call evidence in response, thus requiring a third arbitration. There is no justification for the delay, stress, inconvenience and cost involved in having yet another arbitration;
(c) it is not probable that, if the report had been admitted at the arbitration, it would have resulted in a different outcome;
(d) as the evidence would not have affected the outcome, there is no injustice to Transfield, let alone a substantial injustice, if the report is excluded, and
(e) given the history of the matter, namely, the fact that there have already been two arbitrations and two appeals, and the lack of weight to be attached to the report, it is not in the interests of justice that it be admitted.
The relevance of the fresh evidence (both the surveillance and Dr Akkerman’s report) to the finding of total incapacity is considered below under “Incapacity”.
ABUSE OF ALCOHOL
Mr Beauchamp did not press this ground of appeal and acknowledged that the evidence supported the Arbitrator’s conclusion that Mr Wicks’s consumption of alcohol was a symptom not a cause of his condition.
The evidence in support of this conclusion is from Dr Canaris, who concluded that Mr Wicks has PTSD with comorbid alcohol abuse. His employment between 2006 and 2009 was more probably than not the predominant cause of his condition, although his alcohol abuse “would not have helped”. However, his alcohol abuse appeared to have been “more a consequence than a cause of his illness”. This evidence provided ample support for the Arbitrator’s conclusion and her acceptance of it involved no error.
FINDING OF DISEASE
Mr Beauchamp made no submissions about whether the Arbitrator erred in concluding that Mr Wicks suffers from PTSD, but did not abandon that ground of appeal and I will deal with it.
Dr Canaris gave unequivocal evidence that Mr Wicks’s PTSD “was a disease contracted by a gradual process” and that cleaning at a police station and “dealing with the detritus of major violence or physical injuries would carry a substantial risk of eventually triggering such an illness”. Once the illness emerged, Mr Wicks’s continuing employment between 2006 and 2009 would have aggravated, accelerated, and exacerbated a condition, which might have remitted, had it been recognised earlier resulting in treatment and a change in his conditions of work. This evidence was logical and consistent with Mr Wicks’s condition having developed in either late 2005 or early 2006 and getting worse while working for Transfield. That the notes from Maitland Hospital suggested that the condition may not have emerged until 2007 does not assist Transfield but merely means that, rather than being an aggravation injury under s 4(b)(ii) (as the Arbitrator found), it is a disease injury under s 4(b)(i) (this issue is discussed further at [130], [131] and [174] below).
Dr McDonald expressed the view that PTSD and “major depressive disorder was a disease contracted by a gradual process of exposure to psychological stressors in his workplace”. Dr McDonald took a history that Mr Wicks was exposed to alarming, distressing and sometimes horrifying situations and images, representing violence and violent deaths, during the 1980’s at Newcastle Police Station, and from 1987 until December 2009, when he was employed at Maitland Police Station. His condition did not arise in response to a single incident, but rather following an accumulation of incidents over a long period, leading to a decompensation, so that events from a long time earlier, which he thought he had dealt with adequately, returned to his consciousness in alarming fashion, to cause him increasing disability.
Dr McDonald added that Mr Wicks’s employment between January 2006 and December 2009, which represented a continuation of work that he had done over many years, led to a gradual accumulation of psychonoxious experiences to the point where his capacity to adapt and accommodate faltered, his PTSD emerged and became more distressing, and he increased his alcohol intake in a maladaptive attempt to relieve stress. While Mr Wicks was not exposed to photographs of victims of crime when he worked for Transfield, the evidence established that he had been exposed to blood stained exhibits until at least September 2006 and that he had been exposed to blood and other bodily fluids during emergency cleans for the whole of his time with Transfield.
The only evidence against this was from Dr Akkerman who said that, at the time Mr Wicks stopped work, Mr Wicks had a mild mood disorder in the form of an adjustment disorder from which he had recovered. He did not say if that disorder was a disease. In any event, Dr Akkerman said that Mr Wicks had recovered from his adjustment disorder and did not suffer from any condition as at 14 February 2012.
The Arbitrator did not accept Dr Akkerman’s diagnosis. She said (at [161]) that she accepted the evidence from Dr Canaris and Dr McDonald that Mr Wicks was suffering from a disease of gradual process, namely, PTSD and comorbid depression as a result of an accumulation of incidents over a long period. Her reasons for this finding have been discussed above. Neither her finding nor her reasons disclose any error and, save as to the Makita point (discussed below), Mr Beauchamp did not suggest otherwise.
Transfield’s argument before the Arbitrator was that, if Mr Wicks suffered from PTSD, it was a condition that was “fully blown” prior to his starting work with it. There is no medical support for that proposition and the Arbitrator was right to reject it.
Mr Stockley also made the point that the argument he presented to the Arbitrator was that the case was a disease of gradual onset (under ss 4(b)(i) and 15), which is supported by Dr McDonald, but the Arbitrator found injury in the nature of an aggravation of disease (under ss 4(b)(ii) and 16), which is supported by Dr Canaris. Whichever approach is taken, the evidence from Dr Canaris and Dr McDonald supports the necessary causal nexus between the employment and Mr Wicks’s condition.
Mr Wicks’s exposure to distressing crime scene photographs and exhibits with earlier employers (which seems to be Transfield’s main complaint) does not mean that he had to fail against Transfield and the arguments presented in the Amended Grounds of Appeal demonstrate a fundamental lack of understanding of the disease provisions. If Mr Wicks’s symptoms emerged prior to January 2006, that does not prevent a finding of injury under the disease provisions against Transfield. The question is, in the case of a s 4(b)(i) injury, whether the employment with Transfield was employment “to the nature of which the disease was due” or, in the case of s 4(b)(ii), whether it was “a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration” of the disease (it should be noted that, in a s 4(b)(ii) case, employment only has to be a substantial contributing factor to the aggravation, acceleration or deterioration of the disease not the underlying condition: Murray v Shillingsworth [2006] NSWCA 367 at [64]). In either case, on the evidence presented, which is not in any way undermined by the fresh evidence sought to be tendered on appeal, Mr Wicks is entitled to succeed.
Aggravation of disease
Mr Beauchamp declined to make any submissions on this ground at the oral hearing, but did not abandon the point. I have been unable to find any coherent reference to it in the written submissions.
The Arbitrator said (at [156]) that Mr Wicks’s case was that his injury was due to the aggravation, acceleration, exacerbation or deterioration of a disease, namely, PTSD. She correctly identified the following questions from Semlitch as being the questions that had to be determined:
(a) Was Mr Wicks suffering from a disease?
(b) If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c) If so, was Mr Wicks’s employment a contributing factor?
(d) If so, did total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?
The Arbitrator also noted that there will be an aggravation of a disease if the consequences of the affliction have become more serious (Semlitch at 639). Accepting the evidence tendered on behalf of Mr Wicks, the Arbitrator found in his favour on all of these questions.
To the extent that this ground of appeal suggests that the Arbitrator erred in accepting the evidence of Mr Southam, I reject that submission for the following reasons.
The starting point on this issue is Ms Heath’s evidence. With regard to her evidence that recording, storage, transfer and disposal of exhibits had never involved cleaning staff, the Arbitrator noted and preferred the evidence of Mr Southam, the relieving sergeant in charge of the exhibits office at Maitland Police Station between 2004 and 2007. In his memo of 13 September 2006, that is, well after Mr Wicks started work for Transfield, Mr Southam referred to exhibits, some of which were bloodstained, soiled or chemically treated, and would be classified as contaminated/hazardous waste.
Mr Southam gave evidence in a statement dated 15 May 2012 that Mr Wicks helped him to dispose of the exhibits described in his memo of 13 September 2006. That involved opening the bags in which the exhibits were held and manually handling them. He said the exhibits included bloodstained and soiled items. He added that Mr Wicks generally did a lot more than he was expected to do as a cleaner. Mr Southam said the room where this was done was unventilated and that the smells were disgusting. His uniform was often soiled with blood or seepage from unsealed items. If he did not want to touch anything, he asked Mr Wicks to do it.
The Arbitrator noted that, in his oral evidence, Mr Wicks said that he had regularly seen material of the type referred to by Mr Southam in his memo of 13 September 2006. While the material was enclosed in bags, it did not remain so when Mr Wicks disposed of it. Mr Wicks was not challenged about this evidence.
The evidence that Mr Wicks transferred exhibits to bins, and had to clean blood and other bodily fluids from the custody area, was also corroborated by Mr Gout, an exhibits officer at Maitland Police Station.
After referring to the above evidence, the Arbitrator said (at [174]) that she preferred the evidence of Mr Southam and Mr Gout to the evidence of Ms Heath because, as the exhibits officers, they were better placed than Ms Heath, a parking patrol officer, to know the procedure involved. As Mr Southam had not seen or spoken to Mr Wicks since about 2007, the Arbitrator felt that he had no reason to give untruthful evidence. These findings are sound and disclose no error.
To the extent that this ground suggests that Mr Wicks’s employment with Transfield did not expose him to “an ambience of the aftermath of serious violence”, I assume that it is a reference to Dr Canaris’s statement that Mr Wicks suggested that he “worked in an ambience very much permeated by the aftermath of serious violence”. The submission seems to be that the Arbitrator erred in accepting the doctor’s opinion based on this history when:
(a) there was no actual evidence of the exhibits disposed of at that time led by Mr Wicks;
(b) the evidence of Ms Heath and Ms Webster was to the contrary, and/or
(c) Mr Wicks was employed to clean up police cells at Maitland Police Station.
I have already dealt with Mr Southam’s evidence and the Arbitrator’s preference for it over the evidence of Ms Heath.
The Arbitrator summarised Ms Webster’s evidence, but did not refer to it in her analysis. As Ms Webster’s evidence was in similar terms to that given by Ms Heath, and was inconsistent with the evidence from Mr Southam and Mr Gout, it stands to reason, reading the Arbitrator’s decision as a whole, that the Arbitrator also impliedly rejected it. At the arbitration, Mr Perry’s only reference to Ms Webster’s evidence was in the context that exhibits were placed on an aluminium table in the forensics room before 2006. As this point was not contentious, it is hardly surprising that Ms Webster’s evidence did not figure in the Arbitrator’s analysis. I do not regard the omission as one that has affected the outcome and, in any event, as best I can determine, it is not a ground of appeal.
The reference (in the Amended Grounds of Appeal) to there being no “actual evidence of the exhibits disposed of at that time led by Mr Wicks” was unhelpful and did not go to any alleged error by the Arbitrator. Mr Wicks’s evidence was that it was part of his job to dispose of all exhibits and rubbish at the Maitland Police Station. That he did so was corroborated by Mr Southam and Mr Gout. It is beyond dispute that those exhibits included blood stained and noxious items that had a disgusting smell. That Mr Wicks did not identify a specific exhibit that distressed him between 2006 and 2009 is of no consequence.
Though the arbitration was adjourned to enable Transfield to call evidence from Mr Southam, and to enable Mr Perry to be in a position to cross-examine Mr Wicks about that evidence, Transfield called no further evidence from Mr Southam (Mr Southam’s statement of 15 May 2012 having been tendered by Mr Wicks) and Mr Perry put no questions to Mr Wicks about the nature of the exhibits he had to handle. The submission on appeal that there was no “actual evidence of the exhibits disposed of at that time led by Mr Wicks” was without merit.
The evidence of Mr Smith, on which the Arbitrator also relied in support of her conclusion, is also relevant to the nature of Mr Wicks’s duties with Transfield. Mr Smith was a police officer between 1988 and September 2010, who had known Mr Wicks since he (Mr Smith) was transferred to Maitland Police Station in February 1995. From about 2000, Mr Smith spent a lot of shifts rostered as the custody manager. He recalled Mr Wicks attending work at about 4:00am most mornings. His duties included cleaning the cells and charge room area. He recalled many occasions when Mr Wicks cleaned blood, vomit, urine and faeces from the dock and cells. On numerous occasions, Mr Smith had to “call out” Mr Wicks for emergency cleans of the dock and cells. He said that the interview and exhibit transit rooms were located within the charge room and cell complex. He added that it was not uncommon for Mr Wicks to witness and even assist in the transport of exhibits “from the van dock or station area to exhibit transit areas”. It was open to the Arbitrator to accept Mr Smith’s evidence.
Exactly what was meant by the reference to Mr Wicks’s “work cleaning up police cells at Maitland Police Station” is unclear and was not developed by Mr Beauchamp. I assume that it was intended to ground an argument that Mr Wicks’s work as a cleaner did not expose him to blood, other bodily fluids, or bloodstained exhibits. The evidence clearly established otherwise and I do not accept that submission.
INCAPACITY
The Arbitrator correctly observed that the medical evidence mainly addressed the issue of causation and was “of limited assistance in determining incapacity” (at [180]). She repeated that Dr McDonald concluded that Mr Wicks had chronic PTSD and major depression. Though his alcohol abuse was in remission, he continued to suffer a high level of psychological distress.
The Arbitrator also referred to Dr Canaris’s evidence in September 2010 that Mr Wicks was unfit to work as a cleaner for Transfield and would probably never be. He added that Mr Wicks might be more likely to recover if given appropriate support and assistance to find other work, but he was probably not well enough to do so “off his own bat” (at [182]). I note that Transfield has never offered any rehabilitation or other return to work assistance to Mr Wicks.
The Arbitrator referred (at [184]) to Mr Wicks’s evidence in his 24 January 2011 statement that he rarely went out, had lost all confidence in socialising and was unfit for work. His medication made him tired, and unable to concentrate or organise himself.
She also referred to Dr Akkerman’s evidence, which she did not accept, that Mr Wicks’s symptoms were minimal, that there was no need for treatment, and there was no restriction on his ability to work. Dr Akkerman added that Mr Wicks did not want to work.
After referring to Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 (Lawarra Nominees), the Arbitrator noted that the principles in that case had been applied in Moran Health Care Services v Woods (1997) 14 NSWCCR 499 (Woods) and in O’Brien Glass Industries Pty Ltd v Bahmad [2001] NSWCA 224 (Bahmad) and that, in Bahmad, it was held that the test for total incapacity is not that a worker is unfit for all things that form part of employment activity, but whether the injured worker’s labour is “unsaleable in the relevant labour market”.
She noted that the relevant labour market for Mr Wicks was “limited” (at [188]) because he was 58 years old, left school at the age of 14 and had, since 1980, been employed as a cleaner. He lived at Thornton, which, though it is close to Maitland and Newcastle, is a rural area. In the circumstances, the Arbitrator determined that Mr Wicks was totally incapacitated for any work in the labour market available to him.
This conclusion was consistent with Mr Stockley’s submission to her (at T28.6 – 31 May 2012) that it was difficult to identify remunerative employment for a man living in Thornton within the ambit of his particular vocational, educational and other skill sets, given the fact that, if you accepted Mr Wicks’s (medical) case, he has a significant psychological disorder.
Mr Perry made only brief submissions on incapacity. He said that it was not a “total case” (T22.5 – 31 May 2012) but a partial case. In support of that submission he said the evidence regarding alcohol was “in one direction” (T22.8 – 31 May 2012). He said that that was a significant factor, that (the incapacity) was “multifactorial”, and the Arbitrator could not find that the increase in consumption of alcohol was directly related to any injury with Transfield.
As the Arbitrator found that Mr Wicks’s consumption of alcohol was a consequence of his injury with Transfield, and not the cause of his psychological condition (a finding originally challenged on appeal, but ultimately abandoned at the oral hearing), the alcohol argument carried no weight on the question of incapacity. In any event, there is no evidence that Mr Wicks’s incapacity has resulted from his consumption of alcohol.
Transfield’s medical case is that Mr Wicks is fully fit. It says on appeal that its case is supported by the surveillance reports and Dr Akkerman’s further report, and that the Arbitrator erred in concluding that Mr Wicks’s incapacity was total and in rejecting Dr Akkerman’s opinion on incapacity when neither Dr Canaris nor Dr McDonald had recently examined Mr Wicks but Dr Akkerman had. I do not accept those submissions.
Dr Akkerman’s bald assertion that lawn bowls requires sustained concentration is open to doubt and, in any event, is of little probative value. In any event, as Mr Wicks’s employment as a cleaner was not one that required high levels of concentration, Dr Akkerman’s statement is of no assistance and adds nothing to the issue of incapacity.
While I accept that playing bowls involves socialising, as Mr Wicks never denied playing bowls, Dr Akkerman’s statement about Mr Wicks socialising is of limited weight. I also acknowledge that Dr Canaris and Dr McDonald accepted Mr Wicks had become reclusive since December 2009. The surveillance reports, however, merely establish that Mr Wicks did something he consistently admitted he did. It takes the matter no further.
The Commission had to assess Mr Wicks’s capacity in the context of his injury, age, work history, education and training, and the labour market reasonably available to him. Consistent with the authorities of Lawarra Nominees, Woods and Bahmad, none of which were referred to by Mr Beauchamp on appeal, the Arbitrator correctly referred to those matters and her conclusion is not undermined by the fresh evidence on appeal.
In response to a suggestion from Mr Perry at the first arbitration that, if going for a walk with his granddaughters gave him pleasure and relief from being at home all the time, a job would have the same effect, Mr Wicks said that he got “too jittery” and that he did not “socialise real well any more” (T13.40 – 4 May 2011). Nothing in the fresh evidence erodes the weight of that evidence.
In addition to Mr Wicks not socialising well, Mr Wicks also suffers from other significant symptoms that would affect his ability to work. As Dr McDonald recorded in his report of 30 November 2010, they include loss of confidence, disturbed sleep, depressed mood, feeling unworthy, being frequently forgetful, nightmares, and constant tension and wariness. Dr McDonald also recorded, as did Dr Canaris, that smells of cleaning agents would immediately trigger distressing memories. This is significant on the incapacity issue because it prevents him from even helping his wife in her cleaning work and cleaning work is the only work in which Mr Wicks has had any recent experience. This evidence is in the context of a man who has never been out of work since he left school at age 14, and who started work in an abattoir. Neither the surveillance reports nor Dr Akkerman’s further report undermine the significance of this evidence.
The symptoms recorded in the preceding paragraph were all consistent with Dr McDonald’s findings on examination of a man “with a sad and restricted affect, a furrowed brow, giving poor eye contact” who described himself as “nervous, a bit agitated”. He fiddled with his spectacles throughout the interview. His manner was hesitant and his speech was delivered in a monotone. Dr McDonald did not accept Dr Akkerman’s suggestion that Mr Wicks was malingering. He added that, on every occasion when he saw Mr Wicks, (bearing in mind that Dr McDonald said he spent “considerable time” with Mr Wicks since November 2010), he noted “from the first to the last moment of the consultation a multitude of signs of physiological distress in Mr Wicks, and compelling evidence of reported symptoms consistent with genuine suffering in accord with the syndrome of posttraumatic stress disorder”. In other words, Dr McDonald considered Mr Wicks’s presentation to be genuine.
The fact that neither Dr Canaris nor Dr McDonald had re-assessed Mr Wicks immediately before the second arbitration is of no moment. Mr Wicks’s unchallenged evidence in his supplementary statement that he continued to have the symptoms of which he complained to the doctors, namely, dreams of distressing events, and that he still woke up at night in a cold sweat, provided a sound basis for the acceptance of their opinions on incapacity. That is especially so bearing in mind Dr Canaris’s evidence that Mr Wicks would “probably never” be well enough to return to his old job with Transfield, and given Dr McDonald’s evidence that, though he did not say when his last consultation was with Mr Wicks, he had spent “considerable time” with him since November 2010.
The lack of evidence of a recent examination might have been relevant if there were any persuasive evidence that Mr Wicks’s condition had materially improved. Mr Perry did not suggest that was so in his cross-examination and Dr McDonald noted in his report of 30 November 2010 that, despite an increase in Efexor, there had been no substantial change in Mr Wicks’s condition.
Given that Mr Wicks has no transferrable skills, and has not been offered any re-training or rehabilitation, and given that neither Mr Perry at the arbitration, nor Mr Beauchamp at the appeal, suggested any alternative suitable employment for which Mr Wicks was fit, the Arbitrator’s conclusion that Mr Wicks is totally unfit was open and is not in any way affected by fresh evidence sought to be tendered on appeal.
Mr Wicks’s incapacity has resulted from the consequences of his PTSD and major depression. As Dr Akkerman never accepted that diagnosis, and never accepted Mr Wicks’s complaints as genuine, his opinion on incapacity is of little weight and the Arbitrator did not err in rejecting it. His assertion that Mr Wicks’s participation in lawn bowls was not consistent with the severe mental illness Mr Wicks claimed to have has no probative value in circumstances where Dr Akkerman did not explain why that was so and where he had previously expressed the view that Mr Wicks had recovered from a mild adjustment disorder in any event. In other words, Dr Akkerman has used the surveillance evidence to support his previously entrenched view, a view that the Arbitrator rightly rejected on the basis of persuasive evidence from the treating psychiatrist and from Dr Canaris.
Mr Beauchamp’s submission that the surveillance reports must be put to Dr Canaris and Dr McDonald to see if they change their opinions was surprising. This submission has assumed that the appeal is merely a continuation of the arbitration and ignores the fact that Mr Wicks has succeeded with his claim and it is for Transfield to establish error before the Arbitrator’s decision is set aside. Mr Wicks has no obligation to put anything to his medical experts. If the issue of Mr Wicks playing bowls was considered to be of any importance, Transfield had every opportunity to put it to Mr Wicks’s experts at the second arbitration. Not only did it not do so, the fact that Mr Wicks played bowls did not figure at all at the second arbitration.
It follows that, having regard to the fresh evidence as if it had been admitted into evidence, Transfield has not established error by the Arbitrator, or that the finding of total incapacity is wrong.
DR McDONALD’S EVIDENCE
Mr Beauchamp submitted that Dr McDonald’s evidence, namely, that Mr Wicks had not suffered any diagnosable disease before 2006 and that the disease developed after 2006, “was not in accordance with the Arbitrator’s findings of causation”.
This submission does not advance Transfield’s case.
Dr McDonald concluded in his report of 18 January 2012 that Mr Wicks’s condition:
“did not arise in response to a single incident, but rather following an accumulation of incidents over a long period, leading eventually to a situation where there was decompensation, in other words, a failure of his initial coping strategies or defences, so that events from a long time earlier, which he thought he had dealt well with adequately, returned to his consciousness in alarming fashion, to cause him increasing disability.”
He added:
“Thus, the posttraumatic stress disorder and major depressive disorder was a disease contracted by a gradual process of exposure to psychological stressors in his workplace. His employment between 2006 and 2009 was of such a nature as to be the cause of the development of his psychiatric disorder, or disease.”
While I accept Mr Stockley’s submission that this evidence is sufficient to ground a finding of injury, it grounds a finding of injury under s 4(b)(i), not under s 4(b)(ii). The Arbitrator based her conclusion on s 4(b)(ii), that is, that the injury was an aggravation, exacerbation or acceleration of a disease. In support of that finding, she relied on the evidence from Dr Canaris. That finding discloses no error.
Notwithstanding this finding, Dr McDonald’s evidence was still relevant to the diagnosis and the question of incapacity. For the reasons explained above, the Arbitrator’s acceptance of Dr McDonald’s evidence on these issues discloses no error.
MAKITA v SPROWLES
Mr Beauchamp submitted that the overriding principle is that determinations should be made on evidence properly founded and, if it is not properly founded, it is of limited weight. He added that Dr Canaris and Dr McDonald gave no proper explanation for the change in emphasis in their latest reports and those reports breached the principles in Makita.
Mr Beauchamp did not take me to any passages in the Arbitrator’s decision that were said to demonstrate error on this point. He was not able to do so because Mr Perry did not argue any Makita point, or anything like it, at the second arbitration. Mr Perry submitted that Mr Wicks had “fully blown” PTSD prior to starting work with Transfield and that Transfield therefore had no liability. The Arbitrator rejected that submission. Parties are normally bound by the conduct of their counsel (Smits v Roach [2006] HCA 36; 227 CLR 423) and there is no reason why that should not be so in this case.
It is not open to submit on appeal that an Arbitrator has erred in failing to deal with an issue never put (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111). On the issue of whether Transfield should be allowed to raise the issue on appeal, Mr Beauchamp submitted that, should a new hearing be required on this point, any prejudice to Mr Wicks could be cured in costs or an order for the interim payment of compensation.
I do not accept that any prejudice to Mr Wicks can be cured in the way Mr Beauchamp suggested. Mr Wicks has been through two arbitrations and has been cross-examined (by leave) at each hearing. This is the second appeal. There is no valid reason why he should be put through a third hearing to deal with matters Transfield could and should have put at the arbitration. His prejudice is not merely related to costs but goes to the inconvenience and stress involved in a further hearing. In any event, costs in the Commission are strictly controlled and no costs order I could make would come close to compensating Mr Wicks’s legal advisers for having to prepare and present a third arbitration.
Moreover, a party is normally bound by the conduct of his or her case at first instance (University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68, at 71). A point may be raised for the first time on appeal where the point could not possibly have been met by evidence led at the trial below (Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Coulton v Holcombe [1986] HCA 33; 162 CLR 1, at 6–7), or where it is in the interests of justice and would not cause prejudice to the respondent (Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 498).
Had the Makita point been raised at the second arbitration, it could have been met by calling additional evidence (if thought necessary) from either Dr Canaris or Dr McDonald. Mr Beauchamp raised no persuasive argument as to why it was in the interests of justice that the point should be argued for the first time on appeal.
Notwithstanding the above matters, I have considered Mr Beauchamp’s submissions on the Makita point and concluded that they are without merit.
In his written submissions, Mr Beauchamp referred to Dr Canaris’s view that the presence of physical evidence, if one rejected the evidence of Ms Wynands and Ms Heath, was sufficient to place Mr Wicks “in an ambience very much permeated by the aftermath of serious violence”. He said that it was the doctor’s view that he had inadequate knowledge of the actual exposure to serious crime scenes and that, without a further examination, and with his “professed lack of knowledge about crucial historical aspects”, the doctor’s opinion has not been advanced from its previous unsatisfactory state and lacks the reasoning required (by Makita) in forming conclusions.
There are three points to note about this submission.
First, the Arbitrator rejected the evidence of Ms Heath, preferring the evidence of Mr Southam and Mr Gout (see [50] above). Her reasons for reaching that conclusion were open to her and disclose no error. While the Arbitrator referred to the evidence from Ms Wynands, she did not expressly say if she accepted it or rejected it. This was not the subject of a ground of appeal. However, to the extent that the evidence from Ms Wynands was at odds with the evidence from Mr Southam and Mr Gout, it follows, as a matter of logic, reading the decision as a whole, that the Arbitrator impliedly rejected her evidence.
Second, I do not accept the submission that Dr Canaris was of the view that he had inadequate knowledge of Mr Wicks’s actual exposure to serious crime scenes. Mr Beauchamp based this submission on page three of Dr Canaris’s report of 11 January 2012 where the doctor said:
“In short, your client’s history (if accurate) suggests that he was undoubtedly exposed reasonably often to stressors of the type sufficient for a diagnosis of posttraumatic stress disorder. The frequency of such exposure would be worth clarifying. If he had encountered virtually no situations involving confrontation with death or serious injury as suggested by Mary Wynands and Dorothy Heath, the diagnosis of posttraumatic stress disorder on the face of it would be difficult to sustain. However, your client suggests that he worked in an ambience very much permeated by the aftermath of serious violence as described in the preceding paragraph. In the event that the latter version more accurately portrays his workplace experience, then the diagnosis of posttraumatic stress disorder becomes inherently probable.”
Dr Canaris merely said that it would be worth clarifying the frequency of Mr Wicks’s exposure to stressors of the type sufficient for a diagnosis of PTSD. This evidence must be read with Mr Southam’s evidence, which I referred to at [137] above, (to which Mr Beauchamp made no reference) that Mr Wicks assisted him to dispose of exhibits “several times in a week” and that that involved opening the bags in which the exhibits were held and manually handling them. He said the exhibits included blood stained items. The exhibits room was unventilated and they handled “some of the filthiest things on the planet”. His uniform was often soiled with blood or seepage from unsealed items. He would ask Mr Wicks to manually handle some items, because he was better equipped to dispose of them. He thought that Mr Wicks did a lot more than he was expected to do as a cleaner. Thus, the evidence clearly established frequent exposure to stressors of the type sufficient for a diagnosis of PTSD, that is, physical evidence of the aftermath of serious violence.
Third, the history recorded by a doctor does not have to correspond with complete precision with the facts. It is sufficient if the history provided a fair climate for the acceptance of the opinion offered (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510). The facts assumed do not have to be the true or real facts, but only the facts asserted. An expert must identify the “facts and reasoning process which he or she asserts justify the opinion” (AustralianSecurities and Investments Commission v Rich [2005] NSWCA 152). That is sufficient to enable the tribunal of fact to evaluate the opinions expressed (Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43; 8 DDCR 399; NSWCA 11 at [85] (Hancock)).
The evidence from Mr Southam, Mr Gout, Mr Smith and Mr Wicks provided ample support for Dr Canaris’s statements that Mr Wicks “worked in an ambience very much permeated by the aftermath of serious violence” and that he dealt with “the detritus of major violence or physical injuries”. That being so, Dr Canaris’s evidence satisfied the principles relating to expert evidence and it was open to the Arbitrator to accept his opinion that Mr Wicks’s employment between 2006 and 2009 aggravated, accelerated and exacerbated the condition of PTSD.
In his oral submissions, Mr Beauchamp said that Dr Canaris and Dr McDonald did not explain the change in emphasis in their later reports and did not explain why matters that were important in their earlier reports were not so important in their later reports.
I do not accept this submission.
Before providing their latest reports, Dr Canaris and Dr McDonald were provided with Mr Wicks’s supplementary statement and with a copy of my decision in the first appeal. Therefore, any misunderstanding about the nature of Mr Wicks’s duties was largely rectified and the conclusions expressed by Dr Canaris and Dr McDonald were supported by factual material. Indeed, at the arbitration, Mr Stockley submitted (at T27.16 – 31 May 2012) that there could be no doubt that “the medical commentary now assumes a correct history and that that history has [been] augmented and rendered more coherent by the evidence of Mr Southam”. Mr Perry did not challenge this submission.
As observed by Beazley JA in Hancock at [85], what is required for satisfactory compliance with the principles governing expert evidence is for the expert to set out the facts observed, the assumed facts, including those garnered from other sources such as the history provided by the worker, and information from investigations. The evidence from Dr Canaris and Dr McDonald met that standard.
Dr Canaris gave a comprehensive explanation for his opinion. He said that criterion A in DSM IV is satisfied if a person is “confronted” with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. He explained that the person does not have to witness an act of violence or see a corpse to be “confronted” by an event involving actual or threatened death or serious injury. Sighting the physical evidence emanating from the aftermath of such an event would suffice. Exposure to blood stained clothing hanging out to dry or significant blood spills would suffice.
The evidence established that Mr Wicks was exposed, reasonably often, to blood stained exhibits and blood spills while he worked for Transfield. In other words, Mr Wicks worked for Transfield in an “ambience very much permeated by the aftermath of serious violence”. In that situation, Dr Canaris said that the diagnosis of PTSD became “inherently probable”. In a disease case, it is no defence that Mr Wicks was also exposed to distressing photographs and other items before January 2006, which seems to be Transfield’s main contention in its written submissions. Such an argument is analogous to saying that a shearer cannot succeed in a disease claim against his last employer because he did heavier, and more demanding shearing (say, with rams), with earlier employers.
Dealing with the second leg of criterion A, the need for the person to feel “intense fear, helplessness, or horror”, Dr Canaris said that DSM IV does not envisage that that response be present from the initial exposure to the triggering stressor. He added that he commonly encountered workers who for many years have been able to carry the burden of major trauma exposure with seeming “insouciance”. However, cumulative exposure seems to take its toll and “eventually events begin to elicit symptoms of profound distress”. In such a setting, work performance declines and, often, alcohol abuse appears, much as reported by Mr Wicks.
The evidence of Mr Wicks’s decline is found in his statement of 24 January 2011 that, in the year up December 2009, he was “irritable and grumpy all to the time”, though he did not tell anyone that there was anything wrong with him. He only got about four hours’ sleep a night and had “terrible dreams” from his past about photographs and exhibits he had seen. This evidence is largely consistent with the notes from Maitland Hospital, which recorded that he suffered disturbed sleep due to traumatic memories, decreased memory, and worsening depression for two years prior to December 2009, and suicidal ideation for one year before that time.
Dr Canaris went on to explain that, while Mr Wicks’s “employment as a cleaner per se” would be unlikely to contribute to PTSD, cleaning a police station and dealing with the “detritus of major violence or physical injuries would carry a substantial risk of eventually triggering such an illness”. This evidence was more than adequate to comply with the requirement that experts explain their opinions.
Dr McDonald also explained that the memory of Mr Wicks’s exposure over time to images of crimes (bloodied exhibits, blood and other bodily excretions) “provoked horror”. He explained that Mr Wicks felt strongly the “personal significance” (emphasis in original) of the images, rather than seeing them as merely depersonalised materials. It was his view that Mr Wicks’s unsophisticated language expressed an experience by which he felt “as if he had been present at the crime scenes” (emphasis in original). Dr McDonald felt that there was no other diagnostic category in DSM IV that came close to capturing the nature, pervasiveness, persistence and disabling character of the syndrome suffered by Mr Wicks.
On the question of causation, Dr McDonald explained that, as is often the case with PTSD, Mr Wicks’s condition did not arise in response to a single incident, but rather following an accumulation of incidents over a long period, leading to decompensation. Thus, Mr Wicks’s employment between January 2006 and December 2009, which represented a continuation of work he had done over many years (though he was not exposed to photographs or the exhibits in the forensics room in that period), led to an accumulation of psychonoxious experiences, to the point where his capacity to adapt and accommodate faltered and his symptoms of PTSD emerged and became more distressing.
With regard to the relevance of other stressors, Dr McDonald said that he was not aware of any such events or factors from the history he had and, if there were such factors, he doubted that they were of a significance equal to that of his continuing exposure to events, images, and other stimuli and cues which evoked traumatic memories from the many years of his work as a cleaner at police stations. This comment was made notwithstanding that Dr McDonald had a history of the suicide death of a police officer that upset Mr Wicks.
It follows from the above that both Dr Canaris and Dr McDonald provided comprehensive reasons for their conclusions and that the Makita point is completely without merit.
OTHER MATTERS
Mr Beauchamp’s written submissions referred to the history in Dr Canaris’s report of 21 September 2010 where he recorded that Mr Wicks started having problems with his sleep two and a half years earlier, that is, in early 2008, when one of his mates (a policeman) committed suicide. The relevance of this submission is unclear and, though it was referred to at the oral hearing of the appeal, it was not developed in any meaningful way. If it was intended to support a submission that Mr Wicks’s psychological condition resulted from the suicide of the police officer, (a submission that was never made) there is no medical evidence to support that proposition. While Dr Canaris and Dr McDonald both referred to the suicide, neither suggested that Mr Wicks’s condition had resulted from it and not from his work. Even if the suicide was one of the causes of Mr Wicks’s psychological condition, that does not stop work from being a substantial contributing factor to the injury.
CONCLUSION
This appeal was without merit and amounted to no more than an attempt to run new issues on appeal after experienced counsel had run the arbitration in a very specific and deliberate way. Essentially, Transfield’s legal advisers have attempted to conduct the appeal as if there had been no determination by the Arbitrator and they were free to do as they pleased. Appeals under s 352 are restricted to the identification and correction of error. Fresh evidence is only admitted with leave in the circumstances set out in s 352(6), a provision that the appellant’s legal advisers simply ignored in their written submissions.
There are a number other troubling features about this appeal that require comment. First, Ms Sutton’s repeated failure to comply with Practice Direction No 6, and with the Commission’s directions, was unacceptable and unsatisfactory. Second, the attempt to conduct the appeal (effectively) as a hearing de novo, with no regard to the terms of s 352, was also unsatisfactory. Third, several of the points raised on appeal demonstrated a fundamental lack of understanding of the basic legal principles relating to disease cases. Fourth, in light of the previous directions issued, the failure to comply with the direction I issued on 26 October 2012 involved a total disregard for the Commission’s procedures. Last, the fact that Transfield is (apparently) in possession of other surveillance reports that, in breach of the 2010 Regulation, it has not served is a matter that requires further investigation.
DECISION
The Arbitrator’s determination of 2 July 2012 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530.
Bill Roche
Deputy President
20 December 2012
I, MARGOT UNDERCLIFFE, 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
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