University of Newcastle v Perkins
[2005] NSWWCCPD 120
•20 October 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:University of Newcastle v Perkins [2004] NSW WCC PD 120
APPELLANT: University of Newcastle
RESPONDENT: Dr Janice Perkins
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC2253-05
DATE OF ARBITRATOR’S DECISION: 12 May 2005
DATE OF APPEAL DECISION: 20 October 2005
SUBJECT MATTER OF DECISION: Section 4, section 15 and section 16 of the Workers Compensation Act 1987; deemed date of injury; weight of evidence; psychological injury.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: Sparke Helmore Lawyers
Respondent: Cantle Carmichael Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
BACKGROUND TO THE APPEAL
Dr Janice Perkins has been employed as a Senior Lecturer in the Faculty of Medicine and Health Sciences at the University of Newcastle since 1997. Dr Perkins claims to have suffered a work injury, being a psychological injury, arising out of or in the course of her employment with the University. Her current claim is to an entitlement to weekly compensation on and from 9 March 2004, and lump sum permanent impairment and pain and suffering compensation. The University disputes certain aspects of her claim.
The dispute went before a Commission Arbitrator on 6 May 2005. The parties came to an agreement as to payment of weekly benefits compensation to Dr Perkins pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) and payment of reasonable medical expenses pursuant to section 60 of the 1987 Act.
The Arbitrator determined the threshold issue of the ‘date of injury’ prior to referral of the matter to an Approved Medical Specialist. He found that the ‘date of injury’ was 30 September 2002. He gave his reasons orally. They were recorded and transcribed for the benefit of the parties and the Commission file. A Certificate of Determination, recording the decision, was issued on 12 May 2005.
On 7 June 2005 the University filed an appeal against the Arbitrator’s finding on the ‘date of injury’. The University submits the Arbitrator made an error of law. The University wants the Arbitrator’s decision revoked and a new decision substituted for it, that the ‘date of injury’ is 4 October 2000.
The University’s workers compensation insurer is Allianz Australia Workers Compensation (NSW) Limited. The Insurer acted for and on behalf of the University in the Commission proceedings.
I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances (section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)). The parties have agreed to this course.
LEAVE TO APPEAL
In this matter I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act).
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
ISSUE IN DISPUTE
There is only one issue in dispute in the appeal, namely; did the Arbitrator err in determining that 30 September 2002 was the ‘deemed date of injury’ for Dr Perkins?
CONSIDERATION
Relevant Facts
The fact that Dr Perkins suffered an ‘injury’, pursuant to section 4 of the 1987 Act, and that her employment with the University was a ‘substantial contributing factor’ to that injury, pursuant to section 9A of the 1987 Act, is not in dispute.
Dr Perkins filed a number of documents with her original application to the Commission, including a statement dated 2 November 2000. She also gave oral evidence at the hearing. From these the history of the injury and the claim appear as follows:
· From early 2000 she experienced work difficulties with her colleague and supervisor Jill Cockburn.
· Dr Perkins sought mediation to resolve these difficulties, however this did not occur.
· On 4 October 2000 she lodged a claim for compensation, which stated the date of injury as “05/00”, the nature of the injury as “Major Depression” and the description of “what happened” as “workplace conflict & the failure of adequate implementation of faculty grievance procedures leading to major depression”.
· Dr Perkins consulted her General Practitioner, Dr Lambert, about her injury in 2000. She was referred to a Psychiatrist Dr Steele, whom she saw at regular intervals throughout 2000 and 2001.
· Dr Perkins was paid weekly compensation benefits (as evidenced by the Insurer’s records of payments which are in evidence, although not necessarily complete) as a result of her injury and subsequent claim from:
4 October 2000 - 9 October 2000
8 November 2000 - 13 November 2000
19 October 2001 - 2 November 2001
7-8 March 2002
26 April 2002 – 12 April 2004· On 19 September 2002 the University wrote to Dr Perkins stating that ‘suitable duties’ in accordance with a medical certificate she had submitted, were not available.
· The University terminated Dr Perkins’ employment on 1 August 2003 and on 2 September 2003 reinstated her.
· Dr Perkins weekly benefits were terminated on 12 April 2004 (pursuant to section 40 of the 1987 Act) following an assessment by the Insurer that she had the ability to earn the equivalent of her pre-injury earnings.
· Dr Perkins has not resumed work at the University since 26 April 2002, although she remains an employee of the University.
The evidence as to the onset of Dr Perkins symptoms and the diagnosis of ‘major depression’ are as follows:
·Dr Perkins dates her injury on the claim form of October 2000 as “05/00”.
·Dr Steele, reporting on 27 November 2001 records a “history of Major Depression extending back to July, 2000”. He reports ongoing periods of time off work in 2001 followed by improvement in her condition, which then worsened upon return to work.
·Dr Steele also reported on 4 December 2002. He considered that employment remained a substantial contributing factor to her Major Depression, previously diagnosed in November 2001. He reported that a ‘Return to Work Plan’ had not been properly implemented.
·Dr Lambeth, a WorkCover Approved Medical Assessor, reported on 5 October 2004 (x2) and 20 October 2004 (these reports appear to have been considered together as one medical specialist report for the purpose of part 10 of the Workers Compensation Regulation 2003). He reports that Dr Perkins had psychological symptoms from 2000 and that she continued to be disappointed at the failure to implement an effective return to work plan. His diagnosis is of “Adjustment Disorder with Depressed and Anxious Mood”, although he also recognised that a diagnosis of Major Depression would also be appropriate at times.
·Samara Rabe, Psychologist, reported on 29 January 2004. Her report details a history given by Dr Perkins of an injury occurring in May 2000, although she did not take time off work until October 2000.
·In her application to the Commission Dr Perkins states the ‘Date of Injury’ as “[f]rom in or around January 2000 to 31 July 2003”.
·Dr McClure, Psychiatrist, reporting for the Insurer, examined Dr Perkins on 25 September 2002 and reports the onset of symptoms “approximately three years ago”.
The Arbitrator’s Reasons for Decision
The Arbitrator’s reasons for the decision that Dr Perkins ‘deemed date of injury’ was 30 September 2002, were given orally at the hearing and may be summarised as follows:
· The psychological injury of “major depression” may be distinguished from an injury that initiates a degenerative disease process, in that it is possible to have complete recovery.
· Her injury was the result of a series of “micro-traumata in the psychological sense” which occurred from May 2000.
· Dr Perkins’ evidence, which was accepted as “clear and direct”, was that her “incapacity worsened as a result of the return-to-work issues contained” in a letter from the University of 19 September 2002, which stated that it could not provide her with suitable duties.
· There was a “qualitative change” in the extent of Dr Perkins symptoms following receipt of this letter.
· Section 11A of the 1987 Act was not relevant to this dispute.
· From May 2000 the injury has “waxed and waned” however the events of September 2002 were more significant and “changed the nature of the injury considerably”.
· “It would be rather artificial to say, well look, I have a deemed date of injury at the beginning of the symptomatology as the start of the display of symptoms”.
· The appropriate ‘date of injury’ is the “first day of incapacity after the sequence of events from May 2000 to September 2002”.
Submissions
The Insurer submits that the Arbitrator erred in finding that a worsening of Dr Perkins’ symptoms of depression was the “test as to ascertain the date of injury… Once injury is established by symptomatology and incapacity it matters not whether there is an exacerbation thereafter provided that the injury and incapacity has continued”. The proper finding, argues the Insurer, is that the date of injury is 4 October 2000, the date of incapacity, pursuant to the application of section 15 of the 1987 Act.
Dr Perkins submits that the Arbitrator was correct to find that the ‘date of injury’ was 30 September 2002. She argues that although she had time off work from May 2000 to September 2002 she also had periods where she “had recovered at least to the extent that she was able to undertake normal duties”. She argues that section 15 of the 1987 Act has no application, as her condition is not a ‘disease of gradual process’. The injury in this case, argues Dr Perkins, is referable to section 4(b)(ii) of the 1987 Act, namely, an “aggravation, acceleration, exacerbation, or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration”.
Findings on Appeal
The finding of ‘date of injury’ is critical to Dr Perkins’ claim. A statutory entitlement to lump sum compensation for permanent impairment for a psychiatric condition did not arise until 1 January 2002. A finding of injury prior to that date will therefore result in no lump sum compensation pursuant to section 66 of the 1987 Act being payable to her.
The Arbitrator assisted the parties to a timely resolution of the issue and referral to an Approved Medical Specialist by giving the reasons orally at the conclusion of the arbitration. However the Arbitrator’s reasons for decision are slight, difficult to follow and do not appear to deal with much of the evidence that was before him. The matters required of rule 73 of the Workers Compensation Commission Rules 2003 are not adequately addressed. It is inadequate, for instance, that the entirety of the evidence of what occurred prior to 30 September 2002, i.e: Dr Perkins onset of symptoms in May 2000, her claim for compensation in October 2000, visits to her general practitioner, time off work in 2001 and 2002, ongoing and consistent diagnosis and treatment for major depression by her Psychiatrist from November 2000, ongoing and consistent reporting of the aggravation and exacerbation of her symptoms by work stressors, attempts to return to work and the formulation of a return to work plan: can be summed up by the Arbitrator as a series of symptoms which “waxed and waned”.
The determination of the ‘date of injury’ is a question of fact and law, to be determined in the circumstances of the instant case. In my view, having reviewed the evidence and the parties submissions, the Arbitrator’s finding that for the purpose of this claim Dr Perkins injury occurred on 30 September 2002 was open to him on the evidence.
Dr Perkins has consistently reported that she suffered psychological symptoms amounting to an ‘injury’, diagnosed as ‘Major Depression’ on and from early 2000, and at least from May 2000. She had periods off work from 4 October 2000, for which she received weekly benefits compensation. She gave oral evidence that the withdrawal of “selected duties” in September 2002 caused her to feel significantly worse. She said: “This was a loss of my career, and it wasn’t just because I wasn’t able to work at Newcastle University. It was for all the reasons that I said before: my failure to continue with my track record, the loss of my students. They were in a room, only I wasn’t allowed to respond to them. Some of those phone calls became very aggressive and angry and I just - I wasn’t ready to retire. I saw my career being taken away from me. I couldn’t get an explanation as to why and I felt more helpless and more hopeless than I had felt previously”.
Dr Steele, her treating Psychiatrist reported that: “When I saw her on 15th October, 2002 the ongoing chronic circumstantial stressors of the unenforced Return to Work plan had resulted in worsening of her depression such that she had tearfulness, insomnia with early morning wakening, was unable to concentrate on reading, felt hopeless about the situation, had withdrawn actively from social activities , was having interpersonal problems with her husband, vis general worsening of her depression”.
In my view the evidence supports Dr Perkins claim that she had periods where her symptoms lessened to the extent that she was able to undertake more of her normal duties, and that therefore the “qualitative change in the extent of her symptoms” in September 2002 when she suffered further incapacity for work, constituted, in essence, a fresh injury.
The Arbitrator has not stated whether he found Dr Perkins’ injury to have arisen from a personal injury “simpliciter” or a “disease” pursuant to section 4 of the 1987 Act. He refers to a “series of microtraumata”. The parties are in dispute about the application of section 15 of the 1987 Act and in particular whether Dr Perkins’ injury is in the nature of a “disease of gradual process”. Dr Perkins evidence is that she began to have symptoms of depression and anxiety from early 2000, they worsened and were obvious by at least May 2000 and she was first incapacitated for work by them in October 2000.
The evidence, as outlined above, is that Dr Perkins developed symptoms of major depression from early January 2000. There was no single event or incident which caused her illness, instead it was a series of incidents involving alleged harassment by Professor Cockburn, which eventually led to symptoms of depression such as crying, not sleeping and having trouble eating. It was, on the evidence, a disease (of the mind) of gradual process, which worsened as a result of her employment with the University. This ‘injury’ gave rise to her entitlement to weekly compensation for incapacity, which was met by the Insurer prior to 2002, and settled by agreement in this dispute. It meets the definition in section 4(b)(i) of the 1987 Act. Her claim for lump sum compensation for permanent impairment relates (although poorly particularised by her legal representative in the documents before the Commission) to the alleged “aggravation, acceleration, exacerbation, or deterioration” of that disease, in September 2002, pursuant to section 4(b)(ii) of the 1987 Act.
The Insurer is correct to assert that the mere worsening of symptoms does not constitute a fresh or new injury. However on the facts of this case, the evidence supports a finding that in September 2002, after Dr Perkins received the letter from the University, she suffered significant aggravation or exacerbation of her depression, consistent with, and sufficient, to be a discrete injury in itself (Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267). Her first incapacity arising from that injury was 30 September 2002, which is the deemed date of injury pursuant to section 16(1)(a)(i) of the 1987 Act.
The Arbitrator has therefore not erred in finding that the ‘date of injury’ was 30 September 2002.
DECISION
The decision of the Arbitrator is confirmed.
Dr Gabriel Fleming
Deputy President
20 October 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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