Wikner v Commissioner of Police

[2006] NSWCA 217

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Wikner v Commissioner of Police [2006]  NSWCA 217

FILE NUMBER(S):
40999/04

HEARING DATE(S):               2 March 2006

DECISION DATE:     10/08/2006

PARTIES:
Appellant - Catherine Wikner
Respondent - Commissioner of Police

JUDGMENT OF:       Santow JA Ipp JA Hislop J   

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S):          RJ 18342/02; RJ964/03

LOWER COURT JUDICIAL OFFICER:     Nielson DCJ

COUNSEL:
Appellant - Mr BJ Gross QC with Mr JJ Klarica
Respondent - Mr JJ Graves SC with Mr ET Finnane

SOLICITORS:
Appellant - Taylor & Scott
Respondent - Legal Services New South Wales Police

CATCHWORDS:
Appeal from decision confirming police officer not hurt on duty
Procedural fairness
Reasoning process
No error in point of law
ND.

LEGISLATION CITED:
Compensation Court Repeal Act 2002
District Court Act - s 142A
Evidence Act 1995 - s 144
Police Regulation (Superannuation) Act 1906 - ss 12D, 21

DECISION:
(1) Appeal dismissed
(2) Appellant to pay the respondent’s costs.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40999/04

SANTOW JA
IPP JA
HISLOP J

10 August 2006

Catherine WIKNER v COMMISSIONER OF POLICE

Judgment

1. SANTOW JA:  I agree with Hislop J. 

2. IPP JA:  I agree with Hislop J.

   HISLOP J:

   Introduction

3. The appellant joined the New South Wales police service in 1979.

4. On 26 March 2002, she sought a gratuity pursuant to s 12D of the Police Regulation (Superannuation) Act 1906 (“the Act”) in respect of alleged injury to the neck and arms due to repetitive strain resulting from the nature and conditions of her employment. On 30 April 2002 the Commissioner for Police decided, pursuant to s 12D(4) of the Act, that the alleged injury was not caused by the appellant being hurt on duty. Accordingly the claim failed.

5. On 27 November 2003 the State Superannuation Advisory Committee certified the appellant was incapable, due to the infirmity of “major depressive disorder; and chronic pain disorder” of discharging her duties of office. As a result she was discharged, medically unfit, from the police service on 5 December 2003.

6. On 11 December 2003 the Commissioner for Police decided, pursuant to s 10B(3)(a) of the Act, that the infirmity was not caused by the appellant being hurt on duty. As a result the appellant was not eligible for certain benefits.

7. The appellant applied to the Compensation Court for determinations pursuant to s 21 of the Act in relation to the decisions that she was not hurt on duty.

8. The applications were heard together by Nielson DCJ pursuant to the residual jurisdiction conferred on the District Court by the operation of the Compensation Court Repeal Act 2002. In an ex tempore judgment his Honour held the decisions of the Commissioner for Police should be confirmed.

9. The appellant has appealed to this Court from the decisions of Nielson DCJ. The appeal is pursuant to s 142A of the District Court Act which is limited to an appeal in point of law or on a question as to the admission or rejection of evidence.

   The District Court decision

10. The appellant’s case in the District Court was essentially that:

    (a) since February/March 1985 she had had symptoms affecting her neck, shoulders, arms, wrists and hands;

    (b) those symptoms had their genesis in the nature and conditions of her employment whilst in the fraud squad to which she was transferred on 11 February 1985 and where she worked until 1987. Those symptoms subsequently were exacerbated by her work duties from time to time;

    (c) the symptoms were incapacitating;

    (d) in response to those symptoms she developed a major depressive disorder.

11. The appellant and her husband gave evidence. His Honour dealt at length with the appellant’s evidence. He said of the appellant:

    I formed a very favourable impression of Mrs Wikner and I wholly accept that she has done her best to tell me the truth. However, this case does not really depend, to a large extent, on the plaintiff’s veracity because it essentially is a medical issue that I must determine.

12. The medical evidence in the appellant’s case consisted of a medical certificate of Dr Harrington (General Practitioner) dated 1 March 1985 which certified the appellant was suffering from “strain to her right wrist extensor tendon”, a medico-legal report from Dr Benanzio (orthopaedic specialist) dated 27 May 1999 and later reports of Dr Benanzio, Dr Bernard (GP), Dr Winer (rehabilitation specialist), Dr Beard (surgeon), Ms Farr (physiotherapist) and Dr Klug (psychiatrist). As is apparent, there was a gap of 14 years between Dr Harrington’s certificate and the first of the medical reports. No medical witnesses were called to give evidence.

13. The only medical evidence in the appellant’s case which expressly referred to causation was contained in the reports of Drs Benanzio, Winer and Beard. Dr Benanzio said:

    The history suggests that as a consequence of the nature and condition of the patient’s working activities as described to me, the patient sustained strains related to repetition of movements and poor sitting posture.

    Dr Winer said:

    The onset of her upper limb symptoms is clearly related to her work, … Thereafter, for various career and social reasons she persevered at work for several years in spite of recurring pains. This caused the soft tissue strains to become more entrenched  and diffuse and also caused the conditioned reflex and other physiological changes resulting in the Regional Chronic Pain Syndrome. All work related. Her current depressive state developed primarily as a result of the above sequence of events. Therefore, her depressive state also is significantly work related.

    Dr Beard said:

    On my one assessment, I could find no reason to doubt Ms Wikner’s suggestion that her symptoms were related to her work … I am unable to determine whether all Ms Wikner’s symptoms and problems can be entirely related to her work with the Police Force.

14. The medical evidence in the respondent’s case consisted of a report of Dr Potter (rheumatologist) dated 17 December 2003 and attachments and a report of Mr Semple (hand surgeon) dated 10 September 2001.

15. Dr Potter concluded the appellant “since March 1985 has had a regional pain disorder”. “No physical injuries occurred,” “… there has been no injury as such… “ “… there is no physical disorder at any stage in the context of claim” … “There is no evidence that her nature of work or responsibilities in that regard caused, initiated or aggravated any musculoskeletal pathology.” “… at no stage was the workplace in the NSW Police Force in any way a contributing factor to the physical symptoms so outlined. The pathology needs to be understood in psychosomatic psychosocial, behavioural and motivational terms.”

16. Mr Semple concluded that the cervical spine and shoulders were normal and there was nothing physically amiss in the appellant’s forearms, wrists or hands. He considered the most appropriate diagnosis was that of illness behaviour and thought it highly likely that this was of psychological origin.

1. His Honour, in his judgment, recorded the opposing contentions of counsel as follows:

   I am urged by learned counsel for the plaintiff to accept the views of, in particular, Dr Winer and inferentially Dr Beard, and also Dr Benanzio, that the plaintiff has some organic condition caused by her work, or if it not be an organic condition, that it is a psychosomatic symptom, again caused by the plaintiff’s work … However, the defendant relies on very strong opinions from Mr Semple and Dr Potter to the contrary.

2. His Honour, after a lengthy consideration of the medical evidence, concluded, in an ex tempore judgment:

   (1) there had never been any objective sign of organic disability;

   (2) the evidence pointed to the symptoms being determined by a chronic pain syndrome or regional pain syndrome that being the diagnosis of Dr Potter and Dr Winer;

   (3) that condition was not organic but was psychiatrically determined;

   (4) there was a conflict in the medical evidence. The Australian College of Physicians statement, Dr Potter and Mr Semple said the condition was not caused by injury or work practices. Dr Winer and inferentially Drs Beard and Benanzio were of the contrary opinion;

   (5) the appellant bore the onus of proof. The appellant’s experts had not adequately explained why the condition was caused by injury or work practices;

   (6) accordingly on the evidence he was not “satisfied that the chronic pain syndrome or regional pain syndrome was caused by any work that the plaintiff did when she was a member of the NSW Police Force”;

   (7) the certified infirminty was a “chronic pain disorder”. It was uncertain precisely what was meant thereby. If it meant the same as chronic pain syndrome then the appellant must fail for the reasons already given. If it was not the same then the appellant failed because there was no psychiatric evidence chronic pain disorder was caused in any fashion by her work;

   (8) the remaining infirmity “major depressive disorder”, on the evidence of Dr Klug, was secondary to her symptoms. As the appellant had failed to prove those symptoms were caused by her being hurt on duty the claim for the major depressive disorder must also fail.

   Discussion

3. On appeal senior counsel for the appellant did not address any submissions to the s 12D matter.

4. As to the s 10B matter senior counsel for the appellant identified three areas where he submitted his Honour had erred in point of law. These are discussed separately hereunder. He accepted that the appellant’s claim must have, as a starting point, a physical injury in the work place or a succession of physical injuries and that in the absence of such the claim must fail. He accepted that a psychiatric injury caused by the work was insufficient. Although there were other grounds raised in the notice of appeal, senior counsel for the appellant addressed no argument to them and accepted that if he did not succeed on the three matters identified by him he would not succeed in the appeal. Accordingly, this judgment is confined to a consideration of the three matters identified by senior counsel for the appellant.

   The first alleged error – His Honour applied a Makita (Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705) type analysis to the appellant’s expert evidence but did not apply such an analysis to the respondent’s medical evidence. This demonstrated a lack of procedural fairness.

5. His Honour referred in his judgment to comments in Davie v The Edinburgh Magistrates [1953] SC 34 at 40 where Lord President Cooper said:

   The parties have invoked the decision of the judicial tribunal and not the oracular pronouncements of an expert … Their (the experts’) duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence.

6. Davie was more fully quoted (with approval) by Heydon JA (as he then was) in Makita. The quotation included the following sentence:

   In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight.

7. The appellant’s submission was that his Honour applied the “ipse dixit” statement to the appellant’s medical evidence but not to the evidence contained in the attachments to Dr Potter’s report.

8. However the medical evidence on each side, including Dr Potter’s attachments, was tendered without objection. The reports and attachments thus formed part of the evidentiary material before his Honour. It was a matter for his Honour to determine what weight, if any, he attributed to each item of evidence.

9. His Honour had evidence before him from Dr Potter, Mr Semple and a Statement by the Royal Australian College of Physicians which supported the conclusion the symptoms were not caused by work injury or work practices. He had evidence to the contrary from Dr Winer and inferentially from Drs Beard and Benanzio. The appellant bore the onus of proof. It was for her to persuade his Honour that the certified conditions were caused by work injury or work practices. His Honour concluded that the appellant’s medical experts had not adequately explained why the condition was caused by work injury or work practices.

10. In my opinion, no error in point of law has been demonstrated. His Honour was simply not satisfied by the evidence adduced on behalf of the appellant that either of the certified infirmities was caused by her being hurt on duty. There was no lack of procedural fairness in the manner in which his Honour reached that conclusion.

The second alleged error – His Honour took what was, in effect advisory literature, (being Dr Potter’s attachments) “as amounting to a proposition that in no case can you have anyone with this type of disorder or syndrome at that point of disability by reason of any antecedent physical injury”.

1. Included among the attachments was a Statement by the Royal Australian College of Physicians. The Statement distinguished between well categorised disorders of the arm and neck which had well known pathologies, names and appropriate treatments and the 1980’s epidemic of pain in the arm and neck which was not caused by these previously well known conditions. It stated the epidemic was that of a chronic pain syndrome and that the term “regional pain syndrome” has been usefully applied to this condition. The clinical features of regional pain syndrome were said to be well described and were set out in the Statement. It was noted that the pain syndrome was not caused by work practices and the Committee concluded that the recent epidemic of arm and neck pain which occurred throughout Australia was not related to any injury due to work practices.

2. The Statement, prima facie, was entitled to weight being, on the face of it, an authoritative statement by the College. As it had been admitted into evidence without objection it was open to his Honour to give the Statement such weight as he saw fit and to accept or reject it in whole or part. His Honour found it of assistance.

3. The appellant submitted that in the present case there was a sequential three step development of the condition. The first step was physical injury. The second step, a mental reaction to the physical injury. The third step, entrenchment of that reaction in a psychiatric condition at which stage the organic origin or physical injury may have ceased to operate whilst the psychiatric condition continued. His Honour’s error, it was submitted, was that he had accepted that a condition described as a chronic pain syndrome could not be the result of an antecedent physical injury.

4. In my opinion, the appellant’s analysis involves a misconception. What his Honour did was firstly to exclude an organic basis for the appellant’s condition. He did this by a consideration of the medical evidence, not just as at the time of assessment, but over the whole period during which it was alleged the condition had existed. He concluded that there had never been any objective sign of organic disability. This conclusion was reinforced by the absence of any wasting, atrophy or trophic changes and the like and the fact that work absences did not ameliorate the condition.

5. He then concluded that the condition was that of a regional chronic pain syndrome or regional pain disorder, such description according with those of Drs Potter and Winer.

6. He then considered the causation issue. If he had approached the matter as the appellant submits he did this issue would have been already determined adversely to the appellant by the determination that the condition was a regional chronic pain syndrome. However his Honour referred to the conflict between the respondent’s evidence and that of the appellant. He ultimately determined that conflict adversely to the appellant, not by reliance on a proposition that in no case can such a condition be the result of physical injury, but rather because the appellant’s medical evidence had not satisfied him of the necessary connection.

7. The appeal is limited to error in point of law. His Honour’s reasoning process or factual findings is not open to appeal – Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155-6. In my opinion, it has not been demonstrated his Honour misdirected himself as to the question of fact which he had to determine. No error in point of law has been demonstrated.

   The third alleged error – His Honour made reference to the entry for chronic pain disorder in the DSM IV pursuant to the Evidence Act 1995 s 144 when the knowledge of which he informed himself was not knowledge that was “not reasonably open to question” and in circumstances where his Honour did not afford the appellant an opportunity to make submissions etc. as to ensure the appellant was not unfairly prejudiced.

8. There was reference in the evidence to various descriptions of the appellant’s symptoms. These included complex regional pain syndrome, chronic pain syndrome, chronic pain disorder etc. It was unclear whether such terminology was describing the same or different conditions. In particular it was unclear whether the term “chronic pain disorder” in the certificate was the same as the “chronic pain syndrome” referred to by Dr Winer.

9. In the course of submissions his Honour referred to DSM-IV. On the first occasion, after referring to the expression “complex regional pain syndrome” he said:

   A pain disorder is a psychiatric term, isn’t it? Can I have DSM-IV? Yes, it is a somatoform disorder, page 458 of the DSM-IV. The two aren’t the same thing. Dr Winer appears to equate the two.

10. Counsel for the appellant expressly agreed that chronic pain disorder was a psychiatric condition. He then submitted that the chronic pain syndrome spoken of by Dr Winer was, in context, the same as the chronic pain disorder referred to in the certificate.

11. Later during submissions his Honour asked:

    Is somebody going to put before me the discussion of pain disorder, DSM-IV, because when you look at it, it’s much the same as a complex pain syndrome not the complex, the regional pain syndrome.

12. Counsel for the appellant responded:

    They are really talking about the one type of complaint, and the one type of injury, but because of these categories, it makes something complex that is otherwise not.

13. Neither counsel put DSM-IV before his Honour. His Honour did not determine whether the regional pain syndrome was the same as the chronic pain disorder. Instead, in his judgment, he determined the application by reference to each condition. His usage of DSM-IV in the judgment went no further than the statement:

    A chronic pain disorder is a formal psychiatric diagnosis that can be gleaned from DSM-IV page 458.

14. In my opinion no error in point of law is demonstrated in these circumstances. Nor, if there was any error, did any miscarriage of justice result.

Conclusion

1. In my opinion error in point of law has not been demonstrated in respect of his Honour’s determination of either application.

2. I propose the following orders:

   (1) Appeal dismissed.

   (2) Appellant to pay the respondent’s costs.

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LAST UPDATED:               16/08/2006