Wilkes v Department of Community Services
[2006] NSWWCCPD 9
•31 January 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Wilkes v Department of Community Services [2006] NSWWCCPD 9
APPELLANT: Rodney Wilkes
RESPONDENT: Department of Community Services
INSURER:GIO Workers Compensation NSW Treasury Managed Fund
FILE NUMBER: WCC 5137-05
DATE OF ARBITRATOR’S DECISION: 14 July 2005
DATE OF APPEAL DECISION: 31 January 2006
SUBJECT MATTER OF DECISION: Relevant evidence, weight accorded to the evidence, evidence of psychological condition, whether substantial contributing factor pursuant to section 9A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Self-represented
Respondent: Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 14 July 2005 is revoked and the matter is remitted to the Registrar for referral to a different arbitrator for rehearing.
The Respondent, the Department of Community Services, is to pay the Appellant, Mr Wilkes’ costs in this appeal.
BACKGROUND TO THE APPEAL
On 26 July 2005, Rodney Wilkes sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against a decision of an arbitrator dated 14 July 2005. The Respondent to the appeal is the NSW Department of Community Services (‘the Department’). The Department’s workers compensation insurer is GIO Workers Compensation NSW Treasury Managed Fund (‘GIO’).
Mr Wilkes was born on 25 January 1964 and is aged 42. The Department employs him as a community and residential support worker, a position he has held since about 1990. His work involves assisting people with a disability living in residential group homes. Mr Wilkes was involved in a motor vehicle accident while driving to work on 17 November 1995. He suffered injuries to his back, neck, knees and right arm, and pursued his claim for workers compensation in the Compensation Court of NSW. The matter was heard by Davidson J who, on 12 October 1998, gave judgment largely in favour of Mr Wilkes. His Honour ordered: (1) the payment of weekly compensation at varying amounts in respect of different periods, (2) the payment of lump sum compensation in respect of a 5% permanent impairment of Mr Wilkes’ back and a 10% permanent impairment of his neck, and (3) payment of medical expenses. On 22 May 2001, His Honour made a further order for the payment of medical expenses in respect of chiropractic treatment, psychiatric treatment and remedial massage.
In 2003, Mr Wilkes applied for compensation to pay for a chiropractic bed, and was referred to an Approved Medical Specialist, Dr Trevor Best, for assessment. On 13 January 2004, Dr Best issued a Medical Assessment Certificate stating that, in his opinion, the request for a chiropractic bed was not reasonable in the circumstances. The matter was resolved in the Commission by consent with an award in favour of the Department.
On 21 January 2005, Mr Wilkes’ treating psychiatrist, Dr John Miller, issued a WorkCover Medical Certificate diagnosing “anxiety/depression” and stating Mr Wilkes needed “1 month off work to resolve rehabilitation issues” and was unfit for work from 21 January 2005 to 21 February 2005. No specific date of injury was mentioned in the certificate. Mr Wilkes appears to have faxed this certificate to the Department on or about 21 January 2005. GIO appears to have treated the certificate as an initial notification of injury (GIO letter dated 28 January 2005) and sought a report from Dr Miller. Dr Miller responded with a report dated 8 February 2005, enclosing a copy of an earlier report dated 20 December 2001, and stating that Mr Wilkes:
“is suffering from a relapse of depressive symptoms which I would diagnose as Adjustment Disorder with depressive symptoms related to increasing friction at work. I have recommended a month off work and a return to work at the end of that period.”
On 9 February 2005, GIO wrote to Mr Wilkes declining liability for “your claim for incapacity for work due to psychological symptoms” on the ground that his employment with the Department was not “a substantial contributing factor to your psychological condition”. On 21 February 2005, Dr Miller issued a further WorkCover Medical Certificate diagnosing “anxiety/depression” and stating Mr Wilkes was unfit for work from 21 February 2005 to 21 March 2005. This certificate stated the date of injury as 21 January 2005.
On 7 April 2005, the Commission registered Mr Wilkes’ Application to Resolve a Dispute’ in respect of his claim for weekly compensation of $800 per week from 9 February 2005 to date and continuing, and a general order in respect of medical, hospital and related expenses. The injury was described as back pain and psychological injury related to the 1995 motor vehicle accident. On 16 June 2005, the Arbitrator conducted a teleconference with the parties and, on 6 July 2005, conciliation having proved unsuccessful, he conducted an arbitration hearing. The Arbitrator gave an oral decision at the conclusion of the hearing. Mr Wilkes was legally represented in these proceedings. He was not, however, legally represented in relation to the appeal.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 14 July 2005, records the Arbitrator’s orders as follows:
“1. Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2. I confirm the Orders of His Honour Davidson J in the Compensation Court with respect to s60 of the Workers Compensation Act 1987 medical expenses. With respect to s60 medical expenses relating to any psychological injury alleged to have been suffered as a result of claims management or management by the Respondent, an Award for the Respondent.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
In the statement of reasons for his decision, given orally at the conclusion of the hearing, the Arbitrator found, in relation to Mr Wilkes’ physical disabilities, that Mr Wilkes had been able to take leave when needed, his work was not arduous, and any physical incapacity has either now subsided or has been addressed in terms of modified duties afforded him by the Department. Thus, the Arbitrator found Mr Wilkes was not totally incapacitated for work by his physical disabilities. With regard to any psychological injury, the Arbitrator found Mr Wilkes’ employment was not a substantial contributing factor to his psychological condition “as distinct from what has been described today as the psychological overlay arising from the motor vehicle accident and which I am advised that the Respondent is meeting medical treatment costs for”. The Arbitrator said “there is strong evidence to suggest paranoid ideation, and this is a matter for well-targeted therapeutic and medical intervention rather than litigation” (transcript page 39).
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator failed to have proper regard to and to take into account relevant evidence in making his decision. The parties’ submissions are discussed more fully below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties. Mr Wilkes submits that there should be an oral hearing so that “all evidence and statements can be tabled, discussed and re-examined”. The Department submits that the matter can be dealt with ‘on the papers’. Having considered the matter, 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.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), the amount of weekly compensation at issue (at the arbitration hearing, Mr Wilkes’ legal representative acknowledged that the claim being pursued was made under section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’)), from 9 February 2005 to date and continuing, exceeds $5,000 and represents more than 20% of the amount in dispute. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
By letter received on 16 August 2005, Mr Wilkes seeks leave to introduce the following new evidence: (1) letter from Mr Wilkes’ treating psychiatrist, Dr John Miller, dated 10 August 2005; (2) letter from GIO dated 17 January 2005; (3) letter from the Department dated 25 July 2005; and (4) information about the medication being taken by Mr Wilkes.
I have reviewed the evidence before the Arbitrator and the new evidence Mr Wilkes seeks to introduce:
(1) with regard to Dr Miller’s letter dated 10 August 2005, I note there was recent evidence from Dr Miller before the Arbitrator (for example, a report from Dr Miller dated 21 March 2005);
(2) the letter from GIO dated 17 January 2005 appears to have been before the Arbitrator (see Application to Admit Late Documents dated 25 May 2005);(3) the letter dated 25 July 2005 is concerned primarily with rehabilitation; and
(4) I note Dr Miller’s WorkCover Certificate for Mr Wilkes dated 21 February 2005, which was attached to Mr Wilkes ‘Application to Resolve a Dispute’, includes, under the heading “Management Plan”, reference to medication for the diagnosed “anxiety/depression”, and that Mr Wilkes gave evidence at the hearing that he takes medication prescribed by Dr Miller and as to its effect on him (transcript page 9).
Having considered the extent to which this evidence is new, I am not satisfied that to not allow the new evidence would cause a substantial injustice to Mr Wilkes and I therefore refuse leave to introduce the new evidence.
By fax dated 23 January 2006, received on 30 January 2006, Mr Wilkes also seeks leave to introduce a further report from Dr Miller dated 23 January 2006. There is no indication of whether this has been served on the Department. Having reviewed this evidence, I am not satisfied, given the number of other reports from Dr Miller already in evidence, that to not allow the new evidence would cause Mr Wilkes a substantial injustice and I therefore refuse leave to introduce this new evidence.
DISCUSSION
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Wilkes must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73 at paragraph 40 should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
Failure to take into account relevant evidence
Mr Wilkes submits the Arbitrator failed to have proper regard to and to take into account relevant evidence in making his decision. The Department notes Mr Wilkes was legally represented, and submits that the Arbitrator gave proper and due consideration to all the evidence, including permitting the examination and cross-examination of Mr Wilkes, and allowing the parties to make submissions.
I have reviewed the transcript of the arbitration hearing held on 6 July 2005. I note the initial discussion between the Arbitrator and the parties’ legal representatives as to:
(1) the nature of the claim – for weekly compensation in respect of total incapacity for work pursuant to section 37 of the 1987 Act;
(2) the issues in dispute – sections 9A (whether employment was a substantial contributing factor to the injury) and 11A (no compensation is payable for psychological injury caused by reasonable actions of the employer) of the 1987 Act;
(3) the evidence to be heard – there is reference by the Department’s legal representative to a discussion he had with Mr Wilkes’ legal representative about material in Mr Wilkes’ statements being “not being substantially material to the case” (transcript page 3), and the Arbitrator commented that while he had read the statements, he “wouldn’t want to see today moving into the minutiae of those statements” which he did not consider necessary (transcript page 4); and
(4) the course of the hearing – bearing in mind Mr Wilkes’ heightened state of anxiety.
The reference in (3) above is to Mr Wilkes’ statements dated 23 May 2005 and 30 May 2005. The earlier statement is 12 pages long with 11 attachments and is a detailed response to a statement by Brenda Gledhill, Mr Wilkes’ supervisor, dated 1 February 2005, that was included with the Department’s ‘Reply’. Both Ms Gledhill’s statement and Mr Wilkes’ response deal with various work-related matters and issues raised by Mr Wilkes. While I understand these matters and issues are important to Mr Wilkes, given what, in my view, is the high level of detail involved and the issues that the parties had agreed were the focus of the hearing, I can also understand that the parties’ legal representatives and the Arbitrator took the view that it would not be necessary to explore much of that material. As the Department has pointed out, Mr Wilkes was legally represented at the hearing and his representative presumably conducted Mr Wilkes’ case in the way he believed appropriate.
I have also reviewed the examination in chief, cross-examination and re-examination of Mr Wilkes and the evidence given by Mr Wilkes at the arbitration hearing. The two legal representatives do not appear to have been restricted by the Arbitrator in the breadth of their questioning, and Mr Wilkes had the opportunity to give evidence at some length, including about his treatment in relation to his workers compensation claim and payments, and about his treatment in the workplace. The two legal representatives also had a proper opportunity to make oral submissions to the Arbitrator.
Thus, subject to my discussion in relation to the weight to be attributed to evidence of Mr Wilkes’ psychological condition, below, I am not persuaded the Arbitrator failed to have proper regard to or to take into account relevant evidence in making his decision.
Evidence of psychological condition
In oral submissions to the Arbitrator, there was discussion between the legal representatives of Mr Wilkes’ claim in respect of his psychological injury. The Department’s representative submitted that there are two psychological injuries, the first being what he referred to as “the overlay” precipitated by the motor vehicle accident, for which liability has been accepted and which was the subject of Davidson J’s award. The second psychological injury he described as an “independent idio-pathic-sourced condition, which has been precipitated by claims of management and is not compensable”. Mr Wilkes’ legal representative submitted that there was only one psychological injury affecting Mr Wilkes - “the overlay”, and that his then current total incapacity and medical expenses were the direct consequence of the motor vehicle accident and compensable as such.
With regard to Mr Wilkes’ psychological condition, the Department relied on a report from Dr Graham Vickery, Psychiatrist, dated 2 February 2005. Dr Vickery commented:
“Mr Wilkes was anxious however there was no evidence of a major depressive disorder. He was paranoid regarding his workplace however this was not delusional in intensity. There was no evidence of gross cognitive impairment.
In response to your specific enquiries:
1. Diagnosis: Anxiety secondary to paranoid ideation. I am unable to comment on a pre-existing condition as I do not have a copy of Dr Miller’s handwritten notes and reports concerning the consultations spanning the past seven years.
2. Causation: The Paranoid ideation related to constitutional factors. There was no specific evidence from the work incidents that Mr Wilkes provided in the assessment which would objectively substantiate his paranoid overvalued ideas regarding the staff.
Mr Wilkes’ employment with the Department of Community Services was not considered a substantial contributing factor. It was Mr Wilkes’ distorted perception of events which resulted in his anxiety symptoms.”
Mr Wilkes’ psychiatric evidence comprised a series of reports from his treating psychiatrist, Dr Miller. In his report dated 24 September 1999, Dr Miller said:
“I have been seeing Mr Wilkes since referral from his GP on 12th February 1999. He has been suffering from significant depression and anxiety which has arisen out of an accident in which he was involved in November 1995 while travelling to work ...
Underlying his physical injuries, Rodney presents as a self-sufficient man who has always found it difficult to ask for help or turn to others for assistance. This results from a low self esteem coming from a family where there was deprivation and parental separation.”
In an earlier report dated 11 May 1999, Dr Miller noted that Mr Wilkes had experienced emotional symptoms associated with his physical problems arising from the accident for the past three years, but had been reluctant to acknowledge this. In a report dated 3 February 2000, Dr Miller noted Mr Wilkes’ “emerging symptoms of depression and anxiety which have interfered with his self esteem, concentration and ability to focus on his work”. In a report dated 1 June 2000, Dr Miller commented on the restrictions imposed on Mr Wilkes by his physical injuries, causing him ongoing distress, and on his anxiety about his inability to perform his pre-injury duties. In a report dated 20 December 2001, Dr Miller stated:
“Rodney is currently engaged in a supportive psychotherapeutic process aimed at rehabilitation back to work as quickly as possible and also pharmacology in the form of Aropax medication. He has a diagnosis of depressive disorder with anxiety and adjustment disorder in relation to his difficulties at work.”
In a report dated 8 February 2005, Dr Miller said:
“Recently Mr Wilkes became increasingly distressed, again about difficulties arising in his work situation where he feels unsupported and experiences challenges to his ongoing difficulties...
In the past, I have found that continuing in a difficult work situation has only aggravated his symptomatology and recently I suggested a month’s leave because of his increasing distress.
In summary, he is suffering a relapse of depressive symptoms which I would diagnose as Adjustment Disorder with depressive symptoms relating to increasing friction at work. I have recommended a month off work and a return to work at the end of that period.”
In the most recent report from Dr Miller before the Arbitrator, dated 21 March 2005, Dr Miller stated:
“Recently, in December 2004, he described problems at work where he felt he was being criticised for his time taken off work one year ago and this was on top of his situation recently being reviewed by GIO ...
Rodney has described increasing anxiety and distress about the situation at his place of employment and also his contact with staff from GIO and the ongoing contact has been affected by his distress as well.
At the current time he is unable to return to work because of the conflict he is experiencing in that situation, as he describes it to me, and the distress that is arising out of that conflict. Obviously the sooner that this can be resolved through clear communication between both parties the better.”
The Department’s medical evidence included a report from Dr Michael McGrath, Psychiatrist, dated 23 March 2000, and two reports from Dr Graham George, Psychiatrist, dated 31 March 2000 and 3 December 2001. Dr McGrath’s report and Dr George’s earlier report were both in evidence in the proceedings before Davidson J in 2001 and referred to by him in his judgment dated 22 May 2001. Dr McGrath found that Mr Wilkes was “clinically depressed with low self-esteem and this was associated with great dependency needs”, and diagnosed “Dysthymia i.e. a chronic form of low grade depression which pre-dates the accident and is more to do with his earlier life”. He considered Mr Wilkes was in need of psychiatric treatment, although of reduced frequency, and might benefit from anti-depressant medication. In his view, Mr Wilkes’ psychiatric condition was not the consequence of his injury on 17 November 1995.
In his report dated 31 March 2000, Dr George found evidence to suggest “dependent personality traits”, but did not diagnose a psychiatric disorder. Dr George found Mr Wilkes’ thought form was normal, he did not exhibit any psychotic phenomena and his cognitions were intact. However, he noted Mr Wilkes “appears to have developed elements of abnormal illness behaviour and appears to have adopted a ‘sick role’ over time ... one would have to suspect that there may well be an element of malingering in his presentation”. In his later report dated 3 December 2001, Dr George said, “I do not believe that Mr Wilkes has any ongoing psychiatric disorder”. He noted Mr Wilkes claimed to be depressed but said that, in his opinion, this depression was reactive to the frustrations of his work situation.
In his judgment dated 22 May 2001, Davidson J discussed both Dr McGrath’s report and Dr George’s earlier report, in conjunction with the evidence of Dr Miller. His Honour said, at page 5:
“I am satisfied that the applicant must be taken as being of some predisposition to a reaction from a psychological point of view to the physical consequences of his injury which might to another person seem disproportionate. I reject the respondent’s doctors’ view that such psychiatric conditions that the applicant now suffers ... is entirely due to his previous disposition. Even accepting that he had such disposition and that there are other pre-existing factors prior to the effects of the injury operating in the ongoing problem, I do not believe that it has been shown that the effects of the injury, from a psychological point of view, have been displaced. It has to be borne in mind that even with his supposed or actual predisposition, he was unaffected thereby until he had this injury. Thereafter and on a continuing basis he has obviously been psychologically affected and I believe by the accident. I believe therefore that some psychiatric treatment has been reasonably necessary.”
His Honour concluded that some psychiatric treatment was reasonably necessary but only treatment by Dr Miller once a month rather than once a week.
In his Statement of Reasons, the Arbitrator discussed both Dr Miller’s and Dr Vickery’s reports. He also discussed Dr McGrath’s and Dr George’s reports, and noted that although they both referred to Mr Wilkes’ pre-existing psychological background, that in itself “was not sufficient to have Judge Davidson find for the respondent”. The Arbitrator concluded:
“I’m satisfied that the applicant’s employment is not a substantial contributing factor to the applicant’s psychological condition as distinct from what has been described today as the psychological overlay arising from the motor vehicle accident and which I am advised that the respondent is meeting medical treatment costs for.
On my reading of the evidence, other factors are at play and circumstances have combined to create a coincidental nexus between the applicant’s psychological condition as distinct from that overlay and his employment with the respondent. In any event, it appears that the workplace actions in recent times have been downplayed in comparison to concentrate on the psychological illness that might arise from the motor vehicle accident, which, it is the applicant’s contention, provides fertile ground for further psychological dysfunction.
... It is now nearly 10 years since the motor vehicle accident, and even accepting that such conditions can develop and foster over lengthy periods, I’m not satisfied on the medical evidence that the applicant’s employment is the substantial contributing factor to the psychological condition that is said to be the ground for total incapacity. There is strong evidence to suggest paranoid ideation, and this is a matter for well-targeted therapeutic and medical intervention rather than litigation.”
The Arbitrator, having found that Mr Wilkes’ employment was not a substantial contributing factor to the psychological condition arising from the management of his employment, so that section 9A of the 1987 Act was not satisfied, found it was not necessary to determine whether section 11A of the 1987 Act applied.
Having examined Mr Wilkes’ treating psychiatrist, Dr Miller’s reports covering a period of nearly six years, I am concerned at the extent to which reliance can be placed on Dr Vickery’s report when he did not have access to Dr Miller’s reports for that period. In my view, it is clear the Arbitrator made a determination relying heavily on Dr Vickery’s report. The Arbitrator stated that there is “strong evidence to suggest paranoid ideation”. The only evidence of paranoid ideation appears to be Dr Vickery’s report. In my view, it would be unsafe to allow the Arbitrator’s decision to stand in circumstances where the principal medical evidence on which he relied in finding for the Department - Dr Vickery’s report - is evidence on which, in my view, no great weight should be placed because of deficiencies in the material before Dr Vickery at the time he formed his opinion.
Findings of fact should be supported by logically probative evidence (Rule 70 of the Workers Compensation Rules 2003). The Arbitrator made an error of law by failing to recognise this and by placing what appears to have been significant weight on Dr Vickery’s evidence. The Arbitrator did not therefore exercise his discretion fairly and according to law and his decision should therefore be overturned (South Western Area Health Service v Edmonds [2005] NSW WCC PD 18, especially at paragraph 25).
Substantial contributing factor
I am also concerned at the distinction sought to be drawn in this matter between psychological injury arising from the accident and psychological injury arising out of the management of Mr Wilkes’ employment since the accident on 17 November 1995. GIO seems to have treated Mr Wilkes’ claim in respect of total incapacity from 21 January 2005 as a recurrence of his existing psychological condition. This appears to have been Dr Miller’s opinion, expressed in his report to GIO dated 8 February 2005 (see paragraph 4, above), and I interpret his reference to a date of injury of 21 January 2005 in the WorkCover Medical Certificate issued by him on 21 February 2005 as being the date Mr Wilkes first consulted him about this “relapse”.
Mr Wilkes has continued to receive weekly compensation pursuant to the award made by Davidson J in 1998 in respect of Mr Wilkes’ injury on 17 November 1995. At that time, psychological injury was not part of Mr Wilkes’ claim, although when His Honour revisited the matter in 2001, his further order for payment of medical expenses included psychiatric treatment.
There was no mention in Mr Wilkes’ application to the Commission, or in the proceedings before the Arbitrator, of the application being one for the review of existing weekly compensation because of a change of circumstances pursuant to section 55 of the 1987 Act.
I find it difficult to understand how, in this case, a line can be drawn between psychological injury arising from the accident and psychological injury arising out of the management of Mr Wilkes’ employment since the accident. It appears that in trying to draw such a distinction, based on a submission from the Department’s legal representative, the Arbitrator may also have lost sight of the meaning of the requirement for employment to be a ‘substantial contributing factor’ to the injury, pursuant to section 9A of the 1987 Act. This states:
“(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.”
In Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740, the NSW Court of Appeal noted that there may be more than one substantial contributing factor to an injury. In that case, Mason P, with whom Meagher and Beazley JJA agreed, said:
“26. The term ‘substantial’ may have various shades of meaning. Having regard to the context, it may mean ‘large or weighty’ or ‘real or of substance as distinct from ephemeral or nominal’ (Tillmanns Butchery Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 348 per Deane J; Wong v Silkfield Pty Ltd (1999) 73 ALJR 1427 at [27]).
27. Here the word ‘substantial’ qualifies ‘contributing factor’. Obviously it is the extent of the causal link which is at issue. Bishop CCJ [at first instance] recognised this. At [29] of his judgment he held that the meaning to be adopted was that ‘substantial’ meant ‘more than minimal, large or great’. In my view, that was the correct approach, remembering that word is used in the relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition: cf University of Tasmania v Cane (1994) 4 Tas R 156.”
In Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153, Meagher JA, in the NSW Court of Appeal, held that an employment-related contributing factor that is minor in comparison to a non-employment related contributing factor cannot be regarded as ‘substantial’. The Court emphasised that what constitutes a ‘substantial’ contributing factor is a question of fact for the judge.
In the present case, the Arbitrator found Mr Wilkes’ employment was not a substantial contributing factor to the psychological condition arising out of the management of his employment, as opposed to “the psychological overlay arising from the motor vehicle accident”. Having reviewed the evidence, I am not satisfied that it is possible to draw such a distinction between the different facets of Mr Wilkes’ psychological condition. It is clear from the extract from Davidson J’s judgment, quoted above at paragraph 34, that he took the view that Mr Wilkes was psychologically affected by the accident and that such effect was continuing. I am not satisfied on the evidence that this psychological effect has now ceased – indeed, the Arbitrator did not make such a finding - and provided the accident on 17 November 1995 continues to be a substantial contributing factor to Mr Wilkes’ psychological condition, then he continues to be entitled to compensation under the 1987 Act.
Mr Wilkes’ claim in respect of the period from 21 January 2005 would therefore, it appears, be a claim for variation of his award for weekly compensation made by Davidson J in 1998, pursuant to section 55 of the 1987 Act. It will, however, be for the Arbitrator to determine whether Mr Wilkes was totally incapacitated for work during the relevant period and otherwise qualified pursuant to section 37 of the 1987 Act for weekly compensation additional to that which he is receiving under the 1998 award, and whether Mr Wilkes is entitled to recover his medical expenses, reasonably incurred, pursuant to section 60 of the 1987 Act.
Thus, in my view, the Arbitrator also made an error of fact in identifying and differentiating two psychological injuries and their effects. In my view, there is only one psychological condition in issue and the question is whether the accident on 17 November 1995 continues to be a substantial contributing factor to the injury.
DECISION
The Arbitrator having made errors of law and fact in his decision, his determination dated 14 July 2005 must be revoked and the matter remitted to the Registrar for referral to a different arbitrator for rehearing.
COSTS
The Department is to pay Mr Wilkes’ costs in this appeal.
Robin Handley
Acting Deputy President
31 January 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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