Woolworths Ltd v Sisko
[2013] NSWWCCPD 38
•16 July 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Woolworths Ltd v Sisko [2013] NSWWCCPD 38 | ||
| APPELLANT: | Woolworths Ltd | ||
| RESPONDENT: | Marijan Sisko | ||
| INSURER: | Self-insured | ||
| FILE NUMBER: | A1-7042/12 | ||
| ARBITRATOR: | Ms C D’Souza | ||
| DATE OF ARBITRATOR’S DECISION: | 28 March 2013 | ||
| DATE OF APPEAL DECISION: | 16 July 2013 | ||
| SUBJECT MATTER OF DECISION: | Psychological injury; assessment of evidence; challenge to factual findings; alleged improper use of evidence from treating specialist; substantial contributing factor | ||
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |
| Respondent: | RMB Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Subject to the amendment of the figures in paragraph four of the determination of 28 March 2013, which figures are amended by consent, the Arbitrator’s decision is confirmed. 2. Paragraph four of the determination of 28 March 2013 is amended by deleting the figures and dates therein and substituting the following rates of weekly compensation: “4. (a) $575.10 from 19 November 2009 to 31 March 2010; (b) $586.10 from 1 April 2010 to 30 September 2010; (c) $594.00 from 1 October 2010 to 31 March 2011; (d) $606.00 from 1 April 2011 to 23 April 2011; (e) $496.00 from 24 April 2011 to 30 September 2011; (f) $504.50 from 1 October 2011 to 31 March 2012; (g) $514.00 from 1 April 2012 to 17 August 2012; (h) $628.00 from 18 August 2012 to 30 September 2012; (i) $638.10 from 1 October 2012 to 11 October 2012; (j) $740.50 from 12 October 2012 to 1 November 2012, and (k) $624.70 from 2 November 2012 to 31 December 2012.” 3. The matter is remitted to an Arbitrator for a determination of the applicant worker’s entitlement to weekly compensation from 1 January 2013. 4. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | ||
BACKGROUND
The respondent worker, Marijan Sisko, worked for the appellant employer, Woolworths Ltd, for a total of about 16 years over two different periods. He last worked for Woolworths as a store services manager from about 2001 until he stopped work on 21 May 2009 after a meeting at work about his work performance. After returning home that evening, Mr Sisko attempted suicide resulting in him being admitted (as an involuntary patient) to Shellharbour Hospital.
He claimed compensation for a psychological injury (Major Depression) alleged to have been caused by the failure of Woolworths to provide sufficient support to complete his work and by harassment and bullying within the worksite.
Relying on a report from Dr Snowdon, consultant psychiatrist, Woolworths disputed liability on the ground that Mr Sisko suffered from narcotic and benzodiazepine dependence. It also alleged, in the alternative, that any aggravation of his condition caused by his employment on 21 May 2009 was a result of reasonable action taken in relation to performance appraisal and discipline under s 11A of the Workers Compensation Act 1987 (the 1987 Act).
At the arbitration, the parties agreed the following issues remained in dispute:
(a) whether Mr Sisko had suffered a psychological injury arising out of or in the course of his employment;
(b) if Mr Sisko suffered a psychological injury, was his employment a substantial contributing factor to that injury;
(c) if Mr Sisko suffered a psychological injury, was the injury wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to performance appraisal and discipline, and
(d) the extent of any dependency of Mr Sisko’s wife.
It was not disputed that Mr Sisko had been, and remained, at the date of the arbitration, totally unfit for work.
The Arbitrator found in favour of Mr Sisko on all issues and the Commission issued a Certificate of Determination on 28 March 2013 in the following terms:
“The Commission determines:
1. The claim for compensation pursuant to section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment with respect to psychological injury with a date of injury of 21 May 2009.
2. The Application to Resolve a Dispute and attachments and the Reply and attachments and the Applications to Admit Late Documents dated 29 October 2012, 27 November 2012 and 6 December 2012 and attached documents, WorkCover certificates of various dates and a copy of this Determination are to be provided to the Approved Medical Specialist.
3. Respondent to pay the applicant weekly compensation payments pursuant to section 36 of the Workers Compensation Act 1987 from 21 May 2009 to 18 November 2009 at the rate of $1,269.23.
4. Respondent to pay the applicant weekly compensation payment pursuant to section 37 of the Workers Compensation Act 1987 as follows:
(a) $565.00 from 21 May 2009 to 30 September 2009;
(b)$575.10 from 1 October 2009 to 31 March 2010;
(c)$586.10 from 1 April 2010 to 23 April 2010;
(d)$479.70 from 24 April 2010 to 30 September 2010;
(e)$486.20 from 1 October 2010 to 31 March 2011;
(f)$496.00 from 1 April 2011 to 30 September 2011;
(g)$504.00 from 1 October 2011 to 31 March 2012;
(h)$514.00 from 1 April 2012 to 17 August 2012;
(i)$628.00 from 18 August 2012 to 30 September 2012;
(j)$638.10 from 1 October 2012 to 11 October 2012;
(k)$740.50 from 12 October 2012 to 1 November 2012, and
(l)$625.00 from 2 November 2012 to 31 December 2012.
5. Respondent to pay the applicant weekly compensation payments in accordance with the Workers Compensation Act 1987 as amended from 1 January 2013 to date and continuing.
6. Respondent to pay the applicant’s medical and related expenses pursuant to section 60 of the Workers Compensation Act 1987.
7. Respondent to pay the applicant’s costs as agreed or assessed.”
Woolworths has appealed. While Mr Sisko has filed submissions in support of the Arbitrator’s determination, he has submitted that the figures in paragraph four of the award are incorrect and has asked that they be amended under the slip rule. In the event that the appeal is unsuccessful, Woolworths consents to the award being amended as requested by Mr Sisko. This issue is dealt with at [195] to [197] below under “other matters”.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator:
(a) made an error of fact in “finding an absence of drug-dependence prior to 21 May 2009” (drug dependence);
(b) erred in “improper use of Dr Pai opinion evidence” (Dr Pai’s evidence);
(c) erred in “preference of Dr Westmore’s opinion evidence” (Dr Westmore’s evidence);
(d) erred “with regard to the proposition that Dr Snowdon was in agreement with other psychiatrists” (Dr Snowdon’s evidence), and
(e) erred “[u]nder Sec 9A” (s 9A).
FACTUAL BACKGROUND
Mr Sisko was born in 1972 and is now 41 years old.
He suffered nerve damage to his neck in a car accident in 1999, which has caused pain in the left side of his neck and into his left face, shoulder and arm ever since. Dr Daya, Mr Sisko’s general practitioner, consistently prescribed either Panadeine Forte or Tramal for Mr Sisko’s symptoms arising from this accident from 1999 to 2009.
On 7 May 2001, Dr Daya recorded that Mr Sisko was under tremendous stress and feeling depressed. He was getting married in October 2001. His sleep was disturbed and his appetite had decreased. He had no motivation or concentration. Dr Daya prescribed Lovan.
On 14 May 2001, Dr Daya recorded that Mr Sisko was feeling well and was more relaxed. Lovan was again prescribed.
On 7 August 2001, Dr Daya recorded that Mr Sisko felt good on Lovan, for which the doctor provided another script, along with a script for Panadeine Forte.
On 15 October 2001, Mr Sisko returned to work with Woolworths, after having run his own café for a period.
In January 2005, Mr Sisko’s wife injured her back and was ultimately prescribed Endone and Oxycontin. Though the exact date on which she commenced that medication is unclear, it appears to have been after she had surgery in 2007. At about the same time, Mr Sisko was prescribed Endep for left sided symptoms.
Dr Daya reported that Mr Sisko had stopped smoking in November 2007. He felt depressed and had similar symptoms to those recorded in 2001. He was again prescribed Lovan, which made him feel much better, and which Dr Daya said he took “irregularly until August 2008”.
In December 2007, Mr Sisko stopped Tramal and was prescribed Endone. Further scripts for Endone and Tramal were provided throughout 2008.
On 23 June 2008, Mr Sisko and his manager at the Riverwood store completed an Individual Performance and Development Plan. Mr Sisko said that, due to personal circumstances (his wife being ill and having had back surgery) his ability to be a successful backup to his manager, Mrs Regan, had not been to the company’s standard and he aimed to drastically improve his attendance. Mrs Regan wrote that Mr Sisko had done a good job at the store, but needed to work on his “eye for detail in fresh foods” and on not having too many days off. She said he found it hard to travel every day from Wollongong. On the same day, a note was made about the need for Mr Sisko to do quality checks three times a day.
On 31 July 2008, Mr Sisko was counselled (for a third time) about having left out-of-date stock on display. It was noted that he had previously been counselled about produce quality. The interviewer expressed concern about Mr Sisko’s ability to do his job. At the conclusion of this interview, Mr Sisko asked for a transfer (to “Area 64”), saying that the travel (from Wollongong) had gotten to him, and that he was prepared to be a store services manager instead of his current position as a store trading manager. He was told that such a transfer would reduce his salary.
On 23 September 2008, Mr Sisko met with Allan Vogel, the area human resources manager, and explained that his wife had been ill since the arrival of their child and that she had had back surgery. As a result, there was a period when he was under immense pressure due to him looking after his wife, the child, the excessive travel, as well as the demands of the position. These matters led to his decision to “step back” to the position of store services manager.
In January 2009, Mr Sisko had surgery for haemorrhoids and, due to extreme pain after that surgery, was given intravenous morphine, Endone and Oxycontin. He was discharged six or seven days after surgery and prescribed Oxycontin and Endone.
Though his doctor had advised him to take a month off work, and he was still suffering quite severely from pain, he felt pressured to return to work and he did so two weeks after the surgery.
In or about February 2009, Mr Sisko was transferred to Woolworths Shellharbour and appointed store services manager. He said that the handover was short and there was no offer of support. He said that, at that time, the store was “far behind in relation to [his] role as Store Services Manager”. He notified Ron Carradine, a senior manager, and Mr Vogel of the situation and of the number of months he believed it would take to get the store up-to-date. There was no offer of support. Mr Sisko said he immediately became stressed, as he was aware that the area manager expected the highest level of performance.
Shortly after being appointed the store services manager at Shellharbour, Mr Sisko met with the store manager, Manfried Kubitzky, who told him of his expectations. Mr Kubitzky added that the store had not had a management team since about April 2008 and the store services manager and store trading manager had undertaken dual roles. Mr Sisko identified the areas that had been neglected and the time he believed it would take to bring everything up-to-date. He also requested assistance to catch up with the workload, but that was refused and no reason given. He said he became highly stressed.
At another meeting in the first week of February 2009, Mr Kubitzky told Mr Sisko that there would be a major audit of the store’s risk and safety procedures. Mr Sisko said that that area of the store had been neglected for some time and he asked for assistance for the audit, which was refused. On the same day, Mr Sisko contacted the regional safety, health and employment co-ordinator, Kathryn King, seeking assistance. She agreed to assist him to prepare for the audit the following week. He also sought support from the area manager, which was refused.
Mr Sisko said that Ms King did not “present herself until the final week in January” (query whether this should be February), when Mr Sisko was the unofficial store manager. During her tour of the store she noted a multitude of problems and commented that, if she were to do an audit, the store would not receive a grade of more than two out of five. He felt “completely in despair”. He had a large amount of work to complete to “succeed in the audit”, which was on top of his other duties, and he had no support. He started to experience “bad moods, which at times felt uncontrollable”.
Due to Mr Kubitzky being ill in the second week of February 2009, in addition to being store services manager, Mr Sisko was made the unofficial store trading manager. This meant that his responsibilities and workload doubled. He discussed his dual role with the area manager, but his request for assistance was refused. To cope with the additional workload, he worked longer hours and began to experience anxiety. He said that his attitude to staff and his family was deteriorating.
In the third week of February 2009, Mr Sisko was made unofficial acting store manager. He was therefore performing the roles of store manager, store trading manager and store services manager. He told the area manager of his position and support was sent at the end of the week. The support person was a store management trainee, Nicole, who was unqualified for the position. Due to her inexperience and lack of knowledge of audits, Mr Sisko had to supervise her work and prepare for the audit. This level of support continued for three weeks.
Mr Sisko said that, at this stage (presumably late February or early March 2009), his personality changed and he was “becoming increasingly erratic”. On average, he was sleeping only two or three hours a night. His levels of anxiety increased and his health was deteriorating rapidly. He was absent from work due to constant vomiting and diarrhoea. He was only eating one meal a day and his motivation was also deteriorating.
At the start of March 2009, proper support arrived at the store, but only lasted for four days. Mr Sisko’s temper was worsening and he had altercations with the store trading manager in the third or fourth week of March, which resulted in counselling.
In the third week of March 2009, Mr Kubitzky returned and Mr Sisko became the store trading manager. Mr Kubitzky asked about the preparations for the audit and said he expected a grade of five out of five. Mr Sisko explained the stressful time he had had and said such a grade was unrealistic as the store’s “SHE policies and procedures had not been actioned since August 2008”. He said he believed the store would receive a score of four out of five and that he refused to falsify company records. He said that Mr Kubitzky was “not content with [his] decision”.
Mr Sisko told Ms King of Mr Kubitzky’s expectations and how distressed he (Mr Sisko) was. She agreed that Mr Kubitzky was being unrealistic. Mr Sisko became very anxious about the audit and feared that a grade of four would be viewed negatively. At this time, he had not communicated with his wife for four weeks and was largely ignoring his four-year-old daughter.
The day of the audit was extremely stressful for Mr Sisko. He had not slept the previous night. When Mr Kubitzky arrived, he asked, “are we ready for a five?” Mr Sisko replied that they should really be happy if they get a four. The store received a score of 87 per cent, which was a high four and only two per cent off a five. Mr Sisko said that the auditor was very impressed with the store. While he felt relieved, he also believed that substantial damage had been done.
After the audit, Mrs Sisko’s attention was drawn to other areas of his responsibility, in particular “operation phoenix”, a project he had had little involvement in over the previous six or seven weeks.
In the last week of March 2009, the store trading manager returned and, for the first time since early February 2009, the store had a full management team and Mr Sisko was in a position to adequately fulfil his role as store services manager.
In the first week in April 2009, Mr Kubitzky spoke to Mr Sisko and questioned his ability as store services manager. Mr Kubitzky said that, since Mr Sisko had worked at Shellharbour, he had not been impressed with any of his work. Mr Sisko was extremely upset by the remark, especially at the fact that his hard work was unappreciated, and replied:
“[H]ow could you say that, I had not been back in my employed role as SSM for little over a week since I got here in February and now it’s April … What do you expect of me, why don’t you ask me that question on what I have achieved as an SSM in a few months [sic] time. Not now when I have only been back in my role for a little over a week.”
Mr Sisko discussed the incident with the area manager who said he had every right to be upset and asked him to record his meeting with Mr Kubitzky. The support Mr Sisko felt he received from the area manager was short lived and added to his feelings of confusion and isolation.
On the first Monday in April 2009, Mr Sisko had an incident with the store trading manager, Juliana Sirijovska. At 9.00 am, Mr Sisko noticed a pile of stock in aisle two in front of the bakery section, which was still present at midday. After Mr Sisko filled the shelves with the stock, Ms Sirijovska approach him and said how dare he do such a thing. He replied that he did not think it was a big deal and that the boxes had been on the floor for a number of hours and posed a “SHE risk”. She replied, “for your own good you keep out of my departments if you know what is good for you”. Further words were exchanged with Mr Sisko saying that boxes left on the floor posed a risk to customers and staff and that, “SHE” being one of his portfolios, it did involve him.
Mr Sisko reported this incident to Mr Kubitzky who said, “if she doesn’t want the help she can stuff off”. However, as the matter was not taken further, Mr Sisko felt that he received inadequate support from Mr Kubitzky. He also felt that he now had another opponent within the store (Ms Sirijovska), which made him feel more despondent “on the issue resolution process within the store”. His morale (spelt “moral” in his statement) within the store was continuously dropping and he felt alone as he did not know who to talk to.
On 6 April 2009, Ms Sirijovska asked Mr Sisko for the spare keys to the cash office. As he did not have the spare keys, she asked him to get a screw driver from the service desk, to try and break into the cash office via a ventilation duct. On his way to the service department, Mr Sisko passed the bakery manager and asked if he had a screw driver in the bakery department. Ms Sirijovska heard this conversation and screamed out, in front of staff, “I told you to go to the service desk, not the bakery department. Don’t you listen to anything I say?” Mr Sisko was upset by this and replied, in a normal tone, “shut the fuck up”. Ms Sirijovska asked him to repeat what he had just said. As there were staff present, he was embarrassed to reply to the question. (Though Mr Sisko has described this incident as having occurred on 6 April, the documents from Woolworths (discussed below at [48] and [49]) suggest that it occurred on or about 15 April.)
After this incident, Mr Sisko was called to Mr Kubitzky’s office. In the presence of Ms Sirijovska, Mr Kubitzky said, “Mario, if there is one thing I hate more than anything, it is when one of my managers is a liar”. Mr Sisko admitted that he had sworn at Ms Sirijovska and said he was “not used to being yelled at from down the hallway like some imbecile”. He assured Mr Kubitzky that it would never happen again. Mr Sisko was formally counselled and he asked Ms Sirijovska to put this incident behind them and move on.
Mr Sisko became more depressed. Ms Sirijovska was now publically humiliating him and it seemed that Mr Kubitzky was supporting everything that she was saying and only listening to one side. He was upset that he was being called a liar, even after he explained why he did not want to admit to Ms Sirijovska what he had said. He felt that his work was not appreciated, he was not given credit for anything he did and he was working very hard to get everything in his role back in order.
On 9 April 2009, Ms Sirijovska spoke to Mr Sisko in the lunchroom in the presence of two other managers about what would happen when Mr Kubitzky went on holidays. She said that she would take over as relieving store manager. When one of the other managers suggested that Mr Sisko relieve as the store trading manager, Ms Sirijovska said she would not have him do that job because he was incapable of doing it. Not wanting an altercation, Mr Sisko left the room.
When Mr Kubitzky went on holidays, Mr Sisko was not made relieving store trading manager. Instead, Ms Sirijovska did her job and the job of relieving store trading manager. While performing the two roles, she asked Mr Sisko daily to assist her in the store trading manager role. Mr Sisko assisted Ms Sirijovska and that left him struggling to complete his normal duties.
Mr Sisko felt very humiliated by the incident on 9 April 2009 and would daily go to the men’s locker room and cry for periods in a cubicle. He felt this was the “beginning of a nervous break [he] was about to suffer”. His physical health was also getting worse and he was vomiting more frequently and suffering constant diarrhoea. He was also closed off from his family.
On 15 April 2009, Mr Kubitzky formally interviewed Mr Sisko and spoke to him about his poor communications with staff and his numerous cigarette breaks (which were to stop immediately). Mr Sisko was told that he must lead by example, be honest and trustworthy, be approachable and show integrity in all that he does and, above all else, must not lie. Mr Sisko said that he believed he was being judged unfairly, as he had only been in his official role (as store services manager) for one and a half weeks, and that in four weeks it would be a different story.
Also on 15 April 2009, Mr Kubitzky counselled Mr Sisko for unprofessional conduct, in front of staff, towards a supervisor. Mr Sisko said he had apologised to Ms Sirijovska and that it was an “unintentional reflex action”. He added that he believed it was totally inappropriate for staff or managers to yell at people. He did not yell at Ms Sirijovska, but did swear at her.
In the second week of May 2009, Ms Sirijovska took time off on family leave. At about this time Bev Hogan, the store service specialist for Woolworths, was making regular visits to the Shellharbour store. She gave Mr Sisko a checklist that he wrongly believed did not need to be completed until 12 May. Due to his misunderstanding, he was counselled by Ms Hogan on or about 7 May for not having completed the list on time. When he was counselled, he felt physically and mentally exhausted, and quite ill. He told Ms Hogan that he felt ill and she said that he “did not care” and was “not fulfilling [his] duties as an SSM”. Mr Sisko said that his thoughts and emotions at that stage were uncontrollable and that he just wanted the counselling session to end as quickly as possible. He then went to the men’s room, went into a cubicle, and broke down again.
On 13 May 2009, Judith Ryan, the relief store manager at the Shellharbour store in May 2009, sat in on a counselling session that Ms Hogan had with Mr Sisko about operation phoenix. At the conclusion of the session, she asked Mr Sisko if he liked his job, to which he responded that he loved his job. Though this was only the second day on which Ms Ryan had worked with Mr Sisko, she thought he showed no drive or passion, which was what prompted her to ask the question. Mr Sisko then told her about his health issues, which involved blood cells and how many tablets he needed to take daily. She said that if he had health issues that were affecting his job, he needed to see Mr Vogel.
On the afternoon of 13 May 2009, Ms Ryan and Mr Sisko went through the induction refresher process for longer-term employees. She later noticed that he was asking people to sign off on the bottom section of the “T.C.R”, though he had not explained to them the reason for signing that document. She took him into the office and explained that it was not acceptable for employees to sign off on something “they had no idea about”. He later apologised and said that he did not know what he was thinking. (I have taken the summary of the events of 13 May 2009 from Ms Ryan’s statement of 22 May 2009.)
On or around 14 May 2009, Ron Carradine expressed his disappointment with Mr Sisko’s performance and how a senior manager could be counselled. Mr Sisko said it would not happen again and that, at that stage, Mr Carradine became very aggressive towards him, saying “are you using a tone on me?”. Mr Sisko said that he was giving direct answers and if Mr Carradine thought that that was using a tone, he was sorry. He added that operation phoenix was a small part of his role and that he had struggled to catch up because of the circumstances since he arrived at the Shellharbour store. Mr Carradine said, “I don’t give an [sic] fuck about the circumstances that have happened. You are an experienced manager and this should be a walk in the park to you”. Mr Sisko said that the circumstances had been anything but ordinary and he would have the department up-to-date in three months. Mr Carradine said “you have fucking four weeks”. (It should be noted that Woolworths called no evidence from Mr Carradine.)
After this meeting, Mr Sisko felt let down by his superiors and that they were not recognising that the store was so far behind, or the work he had done to get it up-to-date and in completing dual roles while others were off. He felt that the request to have the store up-to-date in four weeks was a totally unrealistic objective. He felt at his “wits end” and contemplated suicide.
In the week commencing 17 May 2009, Mr Sisko’s condition deteriorated. Ms Hogan was in the store daily and Mr Sisko felt he was in a daze the entire week. Ms Ryan confirms that he rang in sick on Monday, 18 May.
On 20 May 2009, Ms Ryan spoke to Mr Sisko about a work injury to another worker, Kellie Doyle, and his failure, as the return to work co-ordinator, to follow the expected process. A question arose as to why Ms Doyle had certain documentation but Woolworths did not. Mr Sisko said that Ms Doyle had gone to the doctor without him attending. Ms Ryan advised that it was his responsibility to attend the doctor with her and to assist in the return-to-work process, not the department manager’s, as Mr Sisko had wrongly believed.
On 21 May 2009, Ms Hogan called Mr Sisko into the manager’s office to discuss issues with the implementation of operation phoenix. Mr Sisko felt he was struggling to get up-to-date and did not have enough time to complete his allocated tasks. He felt helpless because his previous request for help had gone unanswered. Ms Hogan questioned him about the implementation of operation phoenix. Though Mr Sisko’s recollection of the meeting was “quite hazy”, he remembered shaking as he walked into the office and that Ms Hogan called him a liar.
At his home on the night of 21 May 2009, Mr Sisko took a whole bottle of Valium. The next thing he remembered was waking up the next morning in hospital.
Ms Hogan gave a statement on 22 May 2009. She said that the meeting on 21 May 2009 was to discuss why certain instructions relating to the implementation of project phoenix had not been followed, specifically why there had been no weekly meeting held in store with the “key team”, as had been previously requested. When asked why the meeting had not been held, Mr Sisko said that he had been sick on the Monday and he was playing catch up and forgot. He said that he was sorry and Ms Hogan replied that sorry did not “cut it as he gave his assurance that it [the meeting] would happen when it was discussed on the 13th May 2009”.
Ms Hogan also asked Mr Sisko if he had been involved with the “allocation of tasks on the integrated routine” and he said, “yes – he had seen it”. He again apologised and said it would not happen again. He then discussed his health issues. I assume, though it is unclear from Ms Hogan’s statement, that the meeting then finished. About five minutes later, Wendy McLoughan and Melanie Kerr, who had both been present at the first part of the meeting, returned to the office and said that Mr Sisko had lied regarding “his involvement in the routine”. Ms Hogan called Mr Sisko back to the office and asked why he claimed he had an involvement in the allocation of tasks on the integrated routine when he had not. Mr Sisko said that he did not mean to say that. Ms Hogan said that he had blatantly lied to her and had not shown Ms McLoughan and Ms Kerr any respect. Mr Sisko apologised and said it would not happen again. Ms Hogan said “a few words” about how she was disappointed with the lies and how she expected “progress to occur moving forward”.
Ms Hogan said the entire process was conducted in a professional manner and that she had diarised key points of the meeting.
Ms Hogan added that she had the following issues with Mr Sisko:
(a) he had been counselled on 13 May 2009 due to a failure to complete post-training assessment plans for project phoenix, which had been requested to be actioned on three occasions;
(b) numerous complaints had been received from staff about his lack of interest in the cash office and the service areas, and
(c) numerous complaints (which she described as “only hear say [sic]”) had been received about his excessive “smoke breaks”.
A Mental Health Assessment prepared by T Koning (wrongly spelt Konic by the Arbitrator), described as a “CNC” (query, clinical nurse consultant) at Shellharbour Hospital on 22 May 2009 recorded:
“BIBA following 90 – 100 x Diazepam 2 mg tabs last night in the context of ongoing workplace related stresses. Pt [sic] is a manger of local Woolworths store and has been monitored & pressured by his senior management for underperformance for the past 6 – 7 weeks. He says that this really started about 3 yrs [sic] ago when he was rated as underperforming in previous stores he worked at & that during all this time he has been using excessive quantities [of] narcotic analgesia & Diazepam procured from his wife’s supply of pain mgt [sic] medication for her chronic back pain. He claims he has been using her tablets to ease his psychological distress from his workplace worries. Last night after being castigated by another manager yesterday, he took O/D in the belief that his wife & child would be better off without him. Today he remains ambivalent about his capacity to guarantee his personal safety.”
There are extensive further notes from Shellharbour Hospital, which are basically consistent with the above entry and which are discussed in more detail below.
In a statement dated 4 June 2012, Mr Sisko said that he could not remember anything from 21 May 2009 to at least 25 May 2009 and that, according to his wife, he was a “vegetable”. He said that he had “very little recollection of what took place when he was first admitted to hospital, including the questions that [he] was asked by the doctors and the responses [he] gave”. He believed this was due to the “highly medicated” state he was in from the medication he received at hospital.
He said he was given a choice: accept the “rehab medication ie ‘Subutex’”, or, as one doctor said, “they could keep [him] here indefinitely if they wanted to”. As he missed his family, Mr Sisko did what he had to do to get out.
Mr Sisko denied having taken his wife’s “S8 medication”. The only medication he took was from his motor vehicle accident in 1999 when he was prescribed Panadeine Forte and Tramal, which he took until May 2009. He said, at [28]:
“As for the psyche unit’s reports that I have been on oxcycontin and endone for at least the last 3 to 4 years, I have not had the access to those medications. I believe there has been a misunderstanding in which [sic] during the highly medicated state I was in at the psyche ward.”
Mr Sisko said that he suffered a period of depression in about May 2001 when he was overwhelmed by stress and anxiety because he was dealing with many issues: his impending marriage, changing homes, work for his brother, and changing jobs. His general practitioner prescribed medication and his “depression and anxiety largely resolved” and he did not see his doctor for further problems with depression or anxiety until his suicide attempt in 2009. He resumed work with Woolworths in October 2001, about a week after his marriage, and everything settled down and was going well.
He denied suffering any depression in 2007. Though this statement was inconsistent with Dr Daya’s report of 5 October 2010, which recorded that Mr Sisko had stopped smoking in November 2007 and felt depressed, nothing turns on this inconsistency as Dr Westmore recorded in his report of 1 February 2012 that Mr Sisko acknowledged a previous history of depression in 2007, from which he recovered.
With regard to his work history with Woolworths, Mr Sisko said he had only ever been counselled on one previous occasion, which was for overlooking a light bulb when completing a quality control check. He said he “had always been praised” in his work with Woolworths and that it was not until he was moved to the Shellharbour store that he “began to experience difficulties”. Those difficulties were due to the limited staffing and the “work which was expected” of him, which no “reasonable person in [his] position would have been able to complete”.
Due to the stress he was under, he began to have problems in his relationship with his wife and daughter as soon as he was transferred to the Shellharbour store. He tried to shut himself off and did not communicate with them. Eventually, he could no longer deal with the stress and pressure at work, which led to the overdose on 21 May 2009.
Mrs Sisko, a trained nurse, also signed a statement on 4 June 2012. She said that she has been prescribed Oxycontin and Endone for her back injury for the past five and a half years. She was prescribed one months’ supply, it was kept in a locked safe, and only she has access to it. At no time did Mr Sisko have access to it.
She said that, as at 21 May 2009, apart from four Oxycontin tablets and eight Endone tablets in the cupboard, the only medication not locked was her clonazepam, which was the medication her husband took. She believed that he may also have taken the Oxycontin and Endone tables that were in the cupboard, because she found empty boxes for this medication. She found him in a semi-conscious state in the garage with an empty tablet bottle beside him. She called an ambulance and he was taken to hospital.
Mrs Sisko said that from the time of her husband’s admission to the Shellharbour Hospital psychiatric ward he was given Largactil. When she visited him, he did not know who she was and he was mostly in a semi-conscious state unable to communicate. She said she had to feed him and dress him. On one occasion, her husband fell unconscious on the lounge in the common area. When she called for the nurse, his blood pressure was dangerously low and he was given “medication to reverse the side effects that were overly administered and not monitored”.
She said that, during the time that she spent with her husband in hospital, especially in the first three or four days, “he was in no state of mind to be interviewed by any Doctor’s [sic] without a third party present”. She believed he was “pressured into agreeing with the Doctor’s [sic] especially when he was in no state of mind to answer questions on his own due to the medication he was on”.
She immediately questioned the doctors in charge of her husband’s care and “the medication administered in extreme doses that left [her] husband in a vegetative state for days”. It was not until she told them that she was a nurse that they agreed to cease most of the medications he was on, especially the Largactil and Subutex, the latter being a drug administered for drug withdrawal, though he “has never had a substance abuse problem” of any kind in the 15 years she had known him. She said his only medication (prior to admission to hospital) was Tramal and Panadeine Forte for his neck and shoulder injury caused by a car accident 10 years ago.
She thought it was “totally inappropriate” that, in the first three days or so (at the hospital), he was questioned about “his own medications”, especially when he was so heavily medicated by the mental health team. She believed he had no idea what he was being questioned about or the answers he was giving.
Mrs Sisko noticed a change in her husband since he was transferred from the Riverwood store to the Shellharbour store. He appeared to be under more stress and always agitated. He expressed concerns to her about the limited staffing available in the Shellharbour store. She understood that he was doing a lot more work at Shellharbour and spending more time at work than previously.
She recalled him telling her that, quite early after his transfer to Shellharbour, his supervisor was on leave and that he had to perform his supervisor’s duties as well as his own. She could see there was a lot more stress and pressure on her husband from his work. Nothing had changed in the home environment that would have caused him any additional stress or pressure. He also expressed concern to her about different work he was required to perform. He was very consumed with everything that was happening at work and she found it difficult to get him to switch off and stop thinking about work.
DRUG DEPENDENCE
The Arbitrator’s reasons
The challenged findings on this issue appear to be those made at [70] and [71] of the Arbitrator’s decision where she said:
“70. The Shellharbour clinical notes are contemporaneous, and both T Konic [sic] and Dr Sinclair, on separate occasions, have taken a history of a three year period when Mr Sisko used his wife’s drugs. I note they also record that Mr Sisko said that he was bullied and harassed in the Riverwood and Shellharbour stores. I find the opinions of the treating psychologist, treating psychiatrist and treating general practitioner more persuasive than that of Dr Snowdon and the contents of the Shellharbour Hospital records, for the reasons that those doctors have had the benefit of long term treatment and observation of Mr Sisko and are adamant that they saw no signs of long term drug use or later withdrawal. I am particularly persuaded by Dr Gillies’ report, in view of her specialist qualifications in drug rehabilitation, Dr Daya’s opinion, as he saw Mr Sisko on a long-term basis, and the absence of any references to drug taking or dependency in Dr Daya’s clinical notes.
71. I find on the basis of the evidence recorded above that on the balance of probabilities Mr Sisko did not suffer from a narcotic and benzodiazepine dependence and on this basis I do not accept Dr Snowdon’s diagnosis of an anxiety condition caused by such a dependency.”
Submissions
Notwithstanding that in the Appeal Against Decision of Arbitrator filed on 24 April 2013, the person said to have prepared the submissions is Thomas Grimes, at the conclusion of the written submissions in support of the appeal it is stated that “[t]he employer notes that these submissions were prepared by Phillip Perry, Barrister”. I have assumed that Mr Perry, who did not appear at the arbitration, prepared the submissions.
Mr Perry submitted that, contrary to the Arbitrator’s observations at [70] and [71], the evidence that Mr Sisko suffered from a narcotic and benzodiazepine dependence prior to 21 May 2009 was overwhelming. He said that the Arbitrator erred in regarding the Shellharbour Hospital records as “other than persuasive”.
The assessment of Mr Sisko’s cognition and intellectual functioning at the hospital was (described as) “grossly intact”, “preserved intellect” and “clear sensorium”. To accept the evidence from Mr Sisko and his wife that he was in a state of delusion by reason of drugs when he gave his account at the hospital, the Arbitrator “would be obliged to find that the assessment of cognition and intellectual functioning made on 22 May 2013 [sic, 2009] was flawed”. The Arbitrator did not make that finding and “did not deal with that finding”.
The Arbitrator “did not deal with the record which Dr Snowdon regarded as indicating what the worker was at the relevant time, ‘a chronic user’”.
In dealing with the question of whether there was a pre-existing use of Oxycontin, the Arbitrator ignored the “concession” made by Mr Sisko to Dr Pai, his treating psychiatrist, and recorded by the doctor in his report of 5 November 2010. Dr Pai seemed to have no difficulty in accepting that, during the time of Mr Sisko’s admission to Shellharbour Hospital, “he had features of opioid withdrawal in the context of Oxycontin” and went on to note that Mr Sisko had “been using them in the context of ‘self medicating’ them to relieve [his] ‘pain’ of psychological nature in order to find relief from his job related stress”.
This (the statement by Dr Pai recorded in the preceding paragraph) was entirely consistent with Mr Sisko’s account to Dr Sinclair on 25 May 2009 (at Shellharbour Hospital) that over the three years prior to his admission “when I was under a lot of morphine, I was normal, I coped with the yapping, yapping, yapping”. The concession to Dr Pai and the multiple acknowledgments at Shellharbour Hospital “make ludicrous [Mr Sisko’s] subsequent denials”. This, and other material, makes it clear that the proposition that Mr Sisko was other than a “user” of narcotics and of benzodiazepine “glaringly improbable” within the meaning of that term used by the plurality in Fox v Percy [2003] HCA 22; 214 CLR 118 (at [29]).
Though counsel represented Mr Sisko at the arbitration, his solicitor, Mr Khan, has prepared the submissions in opposition to the appeal. Essentially, Mr Khan submitted that the Arbitrator was entitled to accept the evidence called on behalf of Mr Sisko.
Discussion and findings
I do not accept Mr Perry’s submissions.
To understand his submissions it is necessary to set out in more detail the entries in the Shellharbour Hospital records upon which he relies, and to refer to the medical and other evidence, which he has not considered. In addition to the entry reproduced at [63] above, Mr Perry relied on the following entries in the hospital’s records.
On 22 May 2009, Mr Sisko was recorded as having told T Koning:
““In last 3 mths [sic] he’s been using ≤ 180 mg Oxycontin SR daily.
“ “ “ “ “ “ ≤ 45 mg “ 5 tabs [sic]”High dosage use can be explained by the fact that he had been using his wife’s Oxycontin scripts (without her knowledge) until he was found out by her 2 weeks ago. She had been using a minimum of her medications supported by her pain management regime.”
Under “Cognition & Intellectual Functioning” on 22 May 2009, Mr Sisko was recorded as being:
“Grossly intact
Preserved intellect
Clear sensorium”
On 23 May 2009, the notes record that Mr Sisko told the on-call psychiatric registrar:
“Seen [sic] M this morning, with charge nurse.
He was a bit sleepy as he was just woken up.He feels embarrassed about the overdose
and for not telling his wife about his work difficulties.He felt low for the last 3 years and felt his worst in the morning & his best when he comes home. However this has changed recently in the way that even coming home isn’t helping.
He coped by using his wife’s analgesics & hypnotics.
Today he looked sleepy initially & he was engaging & forthcoming.
His speech was normal in rate, rhythm and tone.His mood was low with flat affect
Slow train of thoughts otherwise logical & goal directed.”
On 25 May 2009, Dr Barbara Sinclair, psychiatrist, reviewed Mr Sisko and recorded, among other things:
“Says without medications would have had terminations
This addiction has bought me more time (another 3 years)
‘when under a lot of morphine’
‘I was normal’
‘I coped with the yapping, yapping yapping’”
Also on 25 May 2009, Dr Sinclair completed a Form 1 under the Mental Health Act 2007 in which she said:
“Patient brought in by ambulance after taking severe overdose of 90 x tablets (diazepam) in which he wanted to die
Long history of opioid dependence (prescription analgesics from wife’s supply). History of workplace disharmony.”Dr Sinclair also recorded the name of Mrs Sisko’s doctor (Dr Allen) and that “wife uses medications, he takes rest of scripts and gets them filled out. Takes to cope with stress”.
Mr Perry also relied on the following statement by Dr Sinclair on 28 May 2009, though he made no submission about its relevance:
“Now that has done detoxification
@ risk if goes and usesPressures [sic] is that does not get paid
Unless gets workcover certificate…
- needs workcover claim form
otherwise mortgage; house in arrearsWife in [sic] workers compensation; (Endorsed enrolled nurse)
- care’s [sic] allowance
1 1/2 years
- wants to go onto workers compensation”The challenge by Mr Perry to what he described as the Arbitrator’s “observations” at [70] and [71] of her decision has ignored the Arbitrator’s reasons and the other evidence in the case. Before the conclusions at [70] and [71], the Arbitrator made several additional findings relevant to her conclusion that Mr Sisko had received an injury in the course of his employment with Woolworths.
First, she noted (at [66]) that though Mr Sisko had performance issues at the Riverwood store, when he was trying to assist his wife after her injury, there was no history of a psychological injury or symptoms prior to his commencement at the Shellharbour store. To the extent that the Arbitrator was referring to psychological symptoms immediately before the commencement at the Shellharbour store, this finding was correct and has not been challenged. It has not been argued that Mr Sisko’s symptoms of depression in 2001 or 2007 are of any particular importance in the current claim.
Second, she said (at [67]) that there was no evidence that Mr Sisko received psychological treatment for some years prior to 21 May 2009. His medical case indicated that he developed symptoms in response to issues that arose at the Shellharbour store, being a heavy workload, lack of assistance and support, and treatment by management, which was aggressive and involved abusive language. This finding was open on the evidence and disclosed no error.
Third, she correctly observed (at [68]) that Mr Sisko’s treating practitioners had diagnosed him as suffering from Major Depression with melancholic features. She said that Dr Snowdon agreed with that diagnosis, though he added a further diagnosis of anxiety relating to his diagnosis of narcotic and benzodiazepine dependence. She said that Dr Snowdon based his diagnosis on the notes at Shellharbour Hospital taken on 22 May 2009 and there was ample evidence that, at that time, Mr Sisko was still under the influence of the medication on which he had attempted to overdose. These observations were correct. (The statement that Dr Snowdon agreed with the diagnosis of Major Depression is challenged and is discussed below.)
Fourth, the Arbitrator said (at [69]) that Dr Snowdon gave no reasons or explanation for why the medication on which Mr Sisko overdosed would behave as a truth drug, as he asserted. She said that the opinion of Dr Gillies, Mr Sisko’s treating psychologist, was that the medication would cause a loss of cogent thought process, making his story (in hospital) unreliable. She added that the evidence of Mr Sisko and his wife (which she accepted) was that he was heavily medicated (in hospital) and unable to communicate or recall the events of the first few days following the overdose.
The Arbitrator said (also at [69]) that Dr Snowdon noted that the drugs on which Mr Sisko overdosed can cause amnesia, and that was consistent with the evidence from Mr and Mrs Sisko about Mr Sisko’s condition in the days following the overdose. Taking these factors into account, the Arbitrator said that the opinion of Dr Gillies was more plausible than that of Dr Snowdon and she did not accept Dr Snowdon’s comments concerning the “truth drug” effect. These findings were open on the evidence and disclosed no error.
The Arbitrator then turned (at [70]) to the Shellharbour Hospital records. Noting the history recorded in the hospital notes by T Koning and Dr Sinclair, namely, that Mr Sisko used his wife’s drugs for three years and that he was bullied and harassed at Riverwood and Shellharbour stores, she found the opinions of the treating psychologist (Dr Gillies), treating psychiatrist (Dr Pai) and the treating general practitioner (Dr Daya) more persuasive than that of Dr Snowdon and the contents of the hospital records.
Her reasons for that finding were that those doctors had the benefit of long-term treatment and observation of Mr Sisko and were adamant that they saw no signs of long-term drug use or later withdrawal. She was particularly persuaded by the report from Dr Gillies, in view of her specialist qualifications in drug rehabilitation, Dr Daya’s opinion, as he saw Mr Sisko on a long-term basis, and the absence of any references to drug taking or dependency in Dr Daya’s clinical notes. These reasons were sound and were open on the evidence.
Last, based on the above analysis, the Arbitrator concluded (at [71]) that Mr Sisko did not suffer from narcotic and benzodiazepine dependence and she did not accept Dr Snowdon’s diagnosis of an anxiety condition caused by such a dependency. This conclusion was open and disclosed no error.
It follows that I do not accept the submission that the Arbitrator erred in finding the Shellharbour Hospital records as “other than persuasive”.
The Arbitrator was not “obliged” to find that the assessment of Mr Sisko’s cognition and intellectual functioning made on 22 May 2009 was “flawed”. She was obliged to consider and deal with the issues presented by the parties. Counsel for Woolworths at the arbitration, Mr Odling, made no submission about the hospital entry relied on by Mr Perry on appeal (relating to Mr Sisko’s cognition) and it is not an error for an Arbitrator not to deal with an issue never put (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111).
On the issue of whether Mr Sisko had taken his wife’s Oxycontin, Mr Odling said that the evidence from Mr and Mrs Sisko carried with it the presumption that someone who had been medicated (as Mr Sisko had been in hospital) “is not going to be telling the truth” (T15.36). He argued that the contrary would be the case and that “clearly the medical practitioners involved” were “capable of knowing whether a person’s hearing the questions and understanding the questions” (T15.40). He said that one would be entitled to conclude that (the statements in the hospital records) were more likely to be the truth because “they [the person making the statements] would not be thinking of perhaps the ramifications attaching to the statement of the truth” (T15.49).
The Arbitrator fairly summarised these submissions (at [62(l)]) by saying that Mr Odling submitted that “[w]hat Mr Sisko said at Shellharbour Hospital whilst medicated is likely to have been the truth as the same history was taken by three doctors”. She did not accept that submission, but accepted the evidence of Mr and Mrs Sisko, which was supported by the evidence from Dr Pai, Dr Daya and Dr Gillies.
The evidence from Mr and Mrs Sisko has been summarised earlier and will not be repeated. Suffice to say that they denied that Mr Sisko had used his wife’s medication, noting that it was kept in a locked safe, and denied that he had ever abused narcotics. It was open to the Arbitrator to accept their evidence. That is especially so in light of an absence of a reference to dependence on narcotics or benzodiazepines in Dr Daya’s extensive clinical notes, something to which the Arbitrator made express reference at [37].
The Arbitrator also relied on the evidence of Dr Gillies on this issue. She summarised that evidence at [38] to [43] inclusive and Mr Perry has not submitted that that summary was inaccurate. It is appropriate to consider the evidence from Dr Gillies in some detail.
Dr Gillies took a detailed history of the events at the Shellharbour store leading up to 21 May 2009. She recorded that the following one and a half weeks (when Mr Sisko was in hospital) were “poorly recalled”, though Mr Sisko had “fragmented memory” that his wife, father and sisters visited him daily and that he was heavily medicated and unable to leave because he had been scheduled under the Mental Health Act 2007 for his own protection.
Dr Gillies reviewed Mr Sisko’s medical file from Shellharbour Hospital, and noted that the specialist did not get an “independent history”. She listed the medication he had been given in hospital: diazepam, Chlorpromazine, Lexopro, Avanza, Zyban, Nicotine patch, Buprenorphine, and Largactil.
She understood the insurer’s position was essentially that Mr Sisko did not suffer a work related psychological injury but instead suffered with benzodiazepine and narcotic dependence from taking his wife’s medication, with an aggravation of symptoms following reasonable action, described as interviewing and formal counselling on 21 May 2009.
She did not agree with that opinion. She said that Mr Sisko had always denied any long-term use of his wife’s medication beyond that consumed during the overdose. He had taken Tramal in accordance with his doctor’s instructions. He also denied, to the best of his recollection, reporting otherwise to hospital staff while heavily medicated.
In her opinion, relying on a “retrospective diagnosis of drug dependence for his wife’s medication as causing his decline in mental health, including his suicide attempt, is inappropriate”. She said that it was not long-term drug dependence that was the substantive cause of Mr Sisko’s mental health issues. Workload pressure and major unreasonable behaviour by his manager had not been considered.
Dr Gillies noted that Mr Sisko denied reporting that he suffered from long-term use of Oxycontin, but agreed he used (but not abused) Tramal in the past. With regard to Dr Snowdon’s suggestion that the medication in the overdose may have acted as a truth serum, Dr Gillies suggested, as the Arbitrator stated, that it was more likely that an overdose of medication would cause a “loss of cogent thought process, rendering the story given unreliable rather than more truthful”.
Dr Gillies observed that, generally speaking, histories collected while “drug intoxication” was present were considered less reliable rather than more reliable. She doubted that a history should be collected from a person that overdosed on diazepam the night before, when that drug has a “long half-life”. That was particularly so when Mr Sisko reported that he was still affected at the time of interview, and family support during the interview was denied.
Dr Gillies said that the program for withdrawal of Oxycontin was based on the record completed by T Koning and there was no evidence that Dr Gottlieb (the doctor who provided the drug and alcohol protocol for Mr Sisko) independently collected a drug use history. Mr Sisko was under the impression that the withdrawal program was for Tramal, which his general practitioner had prescribed for him.
Dr Gillies said that it was not possible to determine whether “drug abuse”, or appropriate use of Tramal, occurred prior to the withdrawal program. The pattern of symptoms during the “brupomorphine [sic]” supported withdrawal program did not provide an index of the duration or severity of opiate use. The same pattern of withdrawal symptoms could be present from withdrawal or “wash out” of appropriately used Tramal as from the long-term major abuse of narcotics such as Oxycontin.
Significantly, Dr Gillies noted, as the Arbitrator recorded, that for 12 months before the overdose, Mr Sisko had driven daily from Wollongong to Sydney for work. This involved four hours’ of travel, in heavy traffic, in addition to working eight-hour days. Mr Sisko maintained that demanding pace and was never involved in an accident. This would be difficult to maintain without blemish if an active drug addiction was present.
It follows that the evidence from Dr Gillies, which the Arbitrator found particularly persuasive, and the other evidence noted above, provided a sound basis for the Arbitrator’s conclusion that, contrary to Dr Snowdon’s opinion, Mr Sisko did not suffer from narcotic and benzodiazepine dependence. In other words, having regard to all the evidence, it was open to the Arbitrator to prefer the opinion of Dr Gillies to that of Dr Snowdon.
The submission that the Arbitrator erred in not dealing with the “record” that Dr Snowdon regarded as indicating that Mr Sisko was “a chronic user” was based on the false assumption that the Arbitrator had to accept the evidence in the hospital records as accurate. The accuracy of those records was disputed.
The Arbitrator dealt with that dispute in the manner described above, namely, by indicating, for reasons given, a preference for the evidence from Mr and Mrs Sisko, supported by the evidence from Dr Daya of an absence of drug dependence and by the evidence from Dr Gillies. Mr Sisko was a regular user of Tramal, which had been prescribed by Dr Daya. That use did not justify the conclusion that he had been abusing narcotics. Other than the hospital notes, and the use of benzodiazepines on 21 May 2009, there was no evidence of benzodiazepine abuse.
The submission that the Arbitrator ignored the “concession” made by Mr Sisko to Dr Pai is rejected. Leaving aside that (for good reason) this submission was not made at the arbitration, and cannot be used to support a finding of error by the Arbitrator, the submission was based on the false assumption that Mr Sisko made the “concession” alleged. He did not. It has also ignored Dr Pai’s conclusion on the drug use issue.
The evidence from Dr Pai relied on by Mr Perry is at page 17 of the Application to Resolve a Dispute. It is convenient to set out the whole of that page, from the start of the second paragraph and into the top of page 18:
“2. My clinical impression was Major Depressive Episode with melancholic symptoms and with no psychotic symptoms (DSM IV 296.23, single episode) during his initial consultation. Having reviewed him a further two times in 2009, and 2010, his depressive symptoms have reduced in intensity, and he currently has prominent symptoms of Post-Traumatic Stress Disorder (DSM IV 309.81). The symptoms of PTSD include nightmares, day time flashbacks, numbing and so on, apart from him being extremely intolerant of others displaying anger and irritability. The hospital records during his admission mention him experiencing symptoms of Opioid addiction. These records, however had been documented by different clinicians at different points of time during his admission and that he had features of opioid withdrawal in the context of Oxycontin (a prescription analgesic of opioid content [)] and [Mr Sisko] has been using them in the context of ‘self medicating’ them to relieve his ‘pain’ of psychological nature in order to find relief from his job related stress. The fact that [Mr Sisko] has no past history of substance use disorder (people with primary substance use disorder would initiate their substance use in teenage years and any individual developing symptoms of substance use disorder for the first time in the fourth decade of their life or later, almost always indicates the clinical suspicion of a substance use disorder secondary to a primary psychiatric disorder such as a Depressive disorder, PTSD etc). Moreover the fact that [Mr Sisko] has had a brief period of withdrawal (a reduction of rating of 14 to 5 on Opioid withdrawal rating scale in a day), lack of any other opioid use or any other recreational drug use as well as [Mr Sisko] remaining abstinent from all the recreational substance use ever since discharge are other definite, although indirect, clinical indicators to substantiate his unlikely diagnosis of primary substance use disorder.” (emphasis added)
As the highlighted words in the above passage demonstrate, when Dr Pai referred to Mr Sisko using opioids “in the context of ‘self medicating’ them to relieve his ‘pain’ of psychological nature”, he was referring to the entry in the hospital records to that effect. To suggest that the doctor was recording a “concession” by Mr Sisko was an extraordinary misrepresentation of the evidence. Mr Sisko has consistently maintained that he did not self-medicate with his wife’s medication and her evidence corroborates that assertion. It is patently obvious that he made no “concession” and the submission that he did was incorrect and misleading.
When the relevant passage is read in full (including the entry at the top of page 18), Dr Pai’s conclusion is clear. He said that the following matters provided “definite, although indirect, clinical indicators to substantiate [Mr Sisko’s] unlikely diagnosis of primary substance use disorder”:
(a) Mr Sisko had (only) a brief period of withdrawal (“a reduction of rating of 14 to 5 on Opioid withdrawal rating scale in a day”);
(b) the lack of any other opioid use or any other recreational drug use, and
(c) Mr Sisko “remaining abstinent from all the recreational substance use ever since discharge”.
Dr Pai further explained his view in his report of 6 November 2012. After reviewing Dr Snowdon’s report, Dr Pai remained of the view he had previously expressed. He made the important point, noted by the Arbitrator at [33], that neither he, nor Dr Daya, (who had treated Mr Sisko since 1998), had ever found Mr Sisko to have features of dependence on narcotics and benzodiazepines.
Dealing with Dr Snowdon’s reference to Mr Sisko having been prescribed various painkillers, Dr Pai observed that there was no evidence in the documented records of Mr Sisko “experiencing withdrawal symptoms, craving or requiring a progressive increase in the intake of dose suggestive of tolerance all of which are features of substance dependence”. It has not been submitted that that observation was inaccurate, or was inconsistent with the evidence.
In summary, as the Arbitrator recorded at [31], Dr Pai’s evidence was that the diagnosis of “substance use disorder” was unlikely. This evidence was consistent with the evidence from Dr Gillies and supported Mr Sisko’s denial of any substance abuse prior to 21 May 2009. It was evidence the Arbitrator was entitled to accept.
The submission that the passage quoted from Dr Pai was consistent with Mr Sisko’s account to Dr Sinclair on 25 May 2009 that over the three years prior to his admission to Shellharbour Hospital, when he was under a lot of morphine, he was normal and he coped with the “yapping”, is flawed for the same reasons identified above: Dr Pai did not take that history from Mr Sisko. For the reasons given by Dr Pai, his conclusion was that the diagnosis of substance abuse was unlikely. The submission by Mr Perry was based on an incorrect reading of Dr Pai’s evidence.
The submission that, based on the hospital records, and the evidence from Dr Pai, Mr Sisko’s subsequent denials were “ludicrous” was inappropriate. The submission about Dr Pai’s evidence was demonstrably false and should not have been made. Moreover, the submission failed to address the totality of the evidence.
The submission that the proposition that Mr Sisko was other than a “user” of narcotics and of benzodiazepine was “glaringly improbable” was not based on any reasoned consideration of the evidence, but on the assumption that the (disputed) hospital records were accurate, and had to be accepted, and on the (false) assumption that Mr Sisko made certain “concessions” to Dr Pai about his use of narcotics.
A consideration of the relevant evidence, and the submissions put by Mr Perry on appeal, has not established that the Arbitrator’s conclusion that Mr Sisko did not suffer from a narcotic and benzodiazepine dependence was “glaringly improbable” or “contrary to the compelling inferences”. The Arbitrator’s conclusion was open on the evidence and Mr Perry has not supported his challenge to it with any reasoned argument or analysis of the relevant evidence. On the contrary, Mr Perry misrepresented Dr Pai’s evidence and completely ignored the evidence from Dr Gillies, both of whom provided strong support for the Arbitrator’s conclusion.
If I am wrong in this conclusion, and Mr Sisko was dependent on narcotics and benzodiazepines in the period up to May 2009, for the reasons explained below when dealing with Dr Snowdon’ evidence and s 9A, I believe the same conclusion reached by the Arbitrator follows and Mr Sisko is entitled to succeed with his claim. In other words, it makes no difference to the outcome.
DR PAI’S EVIDENCE
Submissions
Mr Perry referred to Pt 15 r 15.2 of the Workers Compensation Commission Rules 2011 (the Rules) and submitted that Dr Pai “expressly disavowed the provision of opinion evidence”. This was based on Dr Pai’s statement that he had:
“established a therapeutic alliance over time with [Mr Sisko] and I acknowledge the resultant bias, in spite of my neutrality, in compiling this report. Hence I would like to treat this as a comprehensive treating doctors [sic] report and by no means an alternative to a comprehensive independent medico legal report.” (emphasis added)
Dr Snowdon’s report was, by any assessment, a comprehensive independent medicolegal report. Mr Perry said that, directly contrary to Dr Pai’s “specific instruction”, the Arbitrator has used his report as “an alternative to that of Dr Snowdon”.
It was no surprise that Dr Pai had not expressed himself as having read the expert code of conduct, nor agreeing to be bound by it. Dr Pai’s reference to “a therapeutic alliance” would seem to indicate that he saw a form of “comradeship with the worker as therapeutic for the worker”.
Accordingly, Mr Perry submitted the Arbitrator fell into error (at [70]) in accepting Dr Pai’s evidence.
Mr Khan submitted that the Arbitrator made no error. Dr Pai did not instruct the reader to do anything, but merely recorded the standpoint from which he wrote his report. The weight it had was a matter for the Arbitrator, bearing in mind other relevant evidence.
Discussion and findings
The exact nature of the error alleged under this heading is unclear. The ground of appeal merely states “[i]mproper use of Dr Pai’s opinion evidence”. This suggests that the Arbitrator erred in making any use of the doctor’s evidence. Such a submission is untenable and is rejected. Once evidence is admitted in proceedings before the Commission, it may be considered in the determination of the issues in dispute (per Basten JA (McColl JA agreeing) in Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [83] (Sutton)).
The ultimate allegation under this heading is that, because of the statement by Dr Pai, reproduced at [137] above, the Arbitrator erred in accepting his evidence. For good reason, Mr Odling raised no objection to Dr Pai’s evidence at the arbitration and did not suggest that, because of bias, it would be improper for the Arbitrator to accept it. Mr Perry’s arguments demonstrate a fundamental misunderstanding of the nature of proceedings in the Commission and are wrong. The Arbitrator did not err in accepting Dr Pai’s evidence.
Part 15 r 15.2 of the Rules provide that, when informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative;
(b) evidence should be relevant to the facts in issue and the issues in dispute;
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable, and
(d) unqualified opinions are unacceptable.
Assuming that Pt 15 r 15.2 applies to all evidence tendered in proceedings in the Commission, and not just when the Commission is informing itself on any matter, and it almost certainly does (see Sutton at [3]), Dr Pai’s evidence complies with the rule. He set out the history he took, his findings on examination, and, after referring to the Shellharbour Hospital records, the statements from Mr and Mrs Sisko, and the evidence from Dr Snowdon, he set out his opinion. That opinion was based on his knowledge and experience as a consultant psychiatrist and a Fellow of the Royal Australian and New Zealand College of Psychiatrists. It was logical and probative and the Arbitrator was entitled to accept it.
Dr Pai’s statement that there may have been a bias as a result of having established a therapeutic alliance with Mr Sisko was no more than an acknowledgment that, in spite of his neutrality, he was Mr Sisko’s treating specialist and, as such, had developed a therapeutic association with Mr Sisko. That did not mean that acceptance of his evidence was “improper” (or erroneous), but it was a factor to be taken into account when assessing the evidence, depending on the submissions made about it. As already noted, Mr Odling made no submission on the point raised by Mr Perry on appeal.
That Dr Pai was Mr Sisko’s treating specialist was a factor that the Arbitrator felt added weight to the doctor’s opinion because he had the benefit of “long term treatment and observation of Mr Sisko”. While that was a relevant matter, it was not decisive. The Arbitrator did not treat it as decisive, but properly considered it with the other evidence, particularly the evidence from Dr Gillies.
The reference to Dr Pai’s non-compliance with the Expert Witness Code of Conduct was specious. That code applies (subject to exceptions) to proceedings in the courts listed in Sch 1 of the Uniform Civil Procedures Rules 2005 (NSW). As the Commission is not a court, and is not listed in Sch 1, the code does not apply to its proceedings.
Proceedings in the Commission are governed by the relevant legislation (the 1987 Act and the 1998 Act), the Rules and Practice Directions. Practice Direction No 3 provides detailed guidance to parties in relation to the presentation of expert’s reports in proceedings in the Commission. Dr Pai’s reports complied with the requirements of Practice Direction No 3 and the contrary was never suggested at the arbitration.
Though the Commission is not bound by the rules of evidence (s 354(2) of the 1998 Act), it “is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material” (Sutton per Allsop P (McColl JA agreeing) at [2]). As the treating psychiatrist, Dr Pai’s evidence was satisfactory, in a probative sense, and the Arbitrator was entitled to prefer it to Dr Snowdon’s evidence.
The allegation that the Arbitrator’s use of Dr Pai’s evidence was “improper” was itself, at the least, inappropriate and should not have been made.
DR WESTMORE’S EVIDENCE
Submissions
Mr Perry submitted that, at least by implication, the Arbitrator accepted the evidence of Dr Westmore on causation. He said that, unlike Dr Snowdon, Dr Westmore based his opinion on what was clearly “serious misinformation stemming from [Mr Sisko]”. It is clear, so Mr Perry submitted, that Mr Sisko did not reveal to Dr Westmore “that which is demonstrated by the chronology to be a sustained ingestion at high level of medication over ten years prior to [Mr Sisko’s] suicide attempt”.
In addition, had the Arbitrator not committed the error of concluding that Mr Sisko did not suffer the addiction Mr Sisko is recorded to have reported in the hospital records, there was a competing cause of Mr Sisko’s condition of which Dr Westmore had no indication.
Mr Perry relied on the following statement by Beazley JA (as her Honour then was) at [82] in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 (Hancock):
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence.”
He then submitted that “a basic requirement is that the expert providing the opinion have an accurate history of relevant facts”. Dr Westmore’s opinion was “consequently blighted by the history on which that opinion was based, an omission to which the Arbitrator made no reference at all”.
Mr Khan submitted that the lack of an accurate history does not require the rejection of an expert’s opinion (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510 (Paric)). He said that Dr Westmore acknowledged there was a factual question to be determined by the Arbitrator in relation to Mr Sisko’s use of his wife’s medication and the Arbitrator determined that question adversely to Woolworths.
Discussion and findings
Exactly what weight (if any) the Arbitrator placed on Dr Westmore’s evidence is unclear. While the Arbitrator summarised that doctor’s evidence at [27] and [28], the only reference to it in her “discussion and findings” is at [72], where she merely recorded that Dr Westmore said that all three psychiatrists who examined Mr Sisko, including Dr Snowdon, concurred that Mr Sisko suffered a significant depressive disorder with Major Depression caused by his employment. The reasoning in support of her conclusion (at [73]) on injury and causation is found from [66] to [71] inclusive of her decision and has been discussed above at [98] to [105].
The Arbitrator’s observation at [72] was correct, and is discussed further below. The Arbitrator’s statement at [71] is tolerably clear: she found the opinions of Dr Gillies, Dr Pai and Dr Daya more persuasive than that of Dr Snowdon and the contents of the Shellharbour Hospital records. It is therefore difficult to see that Dr Westmore’s report played any part in her decision on injury and causation.
If Dr Westmore’s evidence played a role in the Arbitrator’s conclusion, having found that Mr Sisko did not suffer from narcotic and benzodiazepine dependence, and having rejected Dr Snowdon’s diagnosis of an anxiety condition caused by such dependence, the acceptance of Dr Westmore’s evidence involved no breach of the principles discussed in Hancock.
Dr Westmore acknowledged that there was a dispute about the accuracy of the hospital records, which was not for him to resolve. The Arbitrator resolved that dispute in favour of Mr Sisko and the challenge to that finding has failed. It was therefore not necessary for the Arbitrator to refer to the allegedly “blighted” history. It follows that Dr Westmore’s history provided a “fair climate” (Paric) for the acceptance of his opinion and that it would have been open to the Arbitrator to accept his evidence, which was strongly supportive of Mr Sisko’s claim, had she chosen to do so.
I reject this ground of appeal, which was, to say the least, surprising.
DR SNOWDON’S EVIDENCE
The Arbitrator’s decision
I have already alluded to the Arbitrator’s observation at [72] of her decision. The full passage is as follows:
“Dr Westmore says that all three psychiatrists who examined Mr Sisko, including
Dr Snowdon, concur that Mr Sisko has suffered a significant depressive disorder with major depression caused by his employment.”
Submissions
Mr Perry submitted that the proposition that Dr Snowdon agreed with the other psychiatrists was inaccurate. He said that the following statement by Dr Snowdon gave rise to the Arbitrator’s statement:
“Finally, it is also possible, and perhaps even probable, on the basis of his underlying predisposition to depression, that Mr Sisko has first become depressed, perhaps of spontaneous origin, as a result of which his emotionality to events at work, with which he may normally have been able to cope, has been quite grossly increased.”
Mr Perry said that, in context, it was clear the factor that “grossly increased” in Mr Sisko’s “emotionality” was a non-work factor.
He said that similar caution ought to have been exercised, but was not, towards the following statement by Dr Snowdon:
“I feel that Woolworths Limited may be liable for treatment of depression, but not, as frankly a very unusual situation, for the element of anxiety. Even with regard to the former, however, I have considerable doubts concerning Mr Sisko’s account.”
Mr Perry said that “[c]learly, this cannot be seen as an acceptance of the proposition that [Mr Sisko] has sustained a work injury” and, likewise with another statement by Dr Snowdon (in answer to question 13, discussed below at [182]), was “so express and strong as to remove support for the proposition that the three psychiatrists are in agreement”.
Mr Perry submitted that the Arbitrator:
“ought to have made an assessment of the credibility of [Mr Sisko], particularly in the context of his denial to Dr Westmore of previous ingestion of medication, and in particular, in the light of the categorical and sustained acknowledgment to Shellharbour Hospital of methodical use of Mrs Sisko’s medication, flatly and falsely denied later.”
The proposition that “all three psychiatrists agree” is also “blighted by the inclusion of Dr Pai, in the light of Dr Pai’s express disclaimer”. In view of Dr Pai’s “firm acknowledgement of bias” he ought “not be seen as disagreeing or agreeing with any other practitioner on the issue of causation”.
Mr Khan submitted that all psychiatrists agreed that Mr Sisko suffers from depression. Dr Snowdon felt that Woolworths may be liable for that condition, but he had doubts about Mr Sisko’s account. The Arbitrator accepted Mr Sisko’s account and, in that event, all psychiatrists agreed.
Discussion and findings
I do not accept Mr Perry’s submissions, which have ignored critical parts of Dr Snowdon’s evidence and, as a result, have misrepresented his evidence.
There is no dispute that Dr Westmore and Dr Pai agreed that Mr Sisko is suffering from Major Depression caused by his employment. The submission on appeal seems to be that Dr Snowdon did not agree with that conclusion.
There are two parts to the Arbitrator’s statement at [72]. The first part is that all three psychiatrists agreed that Mr Sisko suffers from Major Depression. The second part is that they also agreed that the Major Depression had been caused by Mr Sisko’s employment.
As to the first part, Dr Snowdon’s evidence is clear. He was asked at page 28 of his report of 19 August 2010:
“Please confirm whether or not Mr Sisko has a psychological diagnosis as per the Diagnostic and Statistical Manual of Mental Health Disorders (DSM – IV – TR).”
He replied:
“As implied in discussion in the body of this report, I agree, in fact, with the diagnosis provided by Mr Sisko’s treating psychiatrist, Dr Pai, that Mr Sisko has developed a Major Depression with Melancholy [later amended by the doctor to be Melancholia, see Dr Snowdon’s report of 27 October 2010], but without psychotic features.”
It is difficult to imagine a clearer statement by Dr Snowdon as to diagnosis. At the arbitration, Mr Odling correctly conceded that Dr Snowdon and Dr Westmore had “come to the same diagnosis” (T12.17–33).
As to the second part of the Arbitrator’s statement, she said (at [48]) that Dr Snowdon opined that Mr Sisko’s depression constituted a compensable psychological injury under the 1987 Act but his anxiety condition did not. This statement was not based on the passages quoted by Mr Perry (see [163] and [165] above), but was based on the following statement by Dr Snowdon at page 31 of his August 2010 report:
“In summary, therefore, I feel that Mr Sisko’s condition, importantly from currently just his account, with regard, importantly, to depression, constitutes a compensable psychological injury under the Workers’ Compensation Act, however, this does not apply to the anxiety component of his picture.”
It is hard to imagine a clearer statement by Dr Snowdon about the cause of Mr Sisko’s depression. It provided a sound basis for the Arbitrator’s statement at [72], which was correct.
Dr Westmore’s evidence, upon which the Arbitrator relied at [72], is at page nine of his report of 1 February 2012, where he said:
“All 3 psychiatrists who have examined this man, concur that he has suffered a significant Depressive Disorder with a Major Depression being the preferred diagnosis. All 3 psychiatrists agree that his Depressive Disorder has arisen specifically as a result of his workplace difficulties. I note again, the high prevalence of anxiety in patients suffering Depressive Disorders and I am not able to indicate that Mr Sisko suffers a specific or discrete Anxiety Disorder.” (The reference to “all 3 psychiatrists” included Dr Snowdon.)
The submission by Mr Perry that the factor which “grossly increased” in Mr Sisko’s “emotionality” was a non-work factor was not developed with any reasoned analysis of the evidence and I reject it. To the extent that the “non-work factor” was narcotic and benzodiazepine dependence, the Arbitrator did not accept that Mr Sisko was so dependent and that finding has been confirmed on appeal.
The better view is that, as Dr Snowdon expressly stated, he accepted that Mr Sisko’s depression “constitutes a compensable psychological injury”. In other words, accepting Mr Sisko’s account, his depression was caused by his employment with Woolworths.
The submission that the passage quoted at [163] cannot be seen as an acceptance of the proposition that Mr Sisko suffered a work injury was wrong and ignored critical parts of Dr Snowdon’s evidence. The evidence that gave rise to the Arbitrator’s statement was Dr Snowdon’s comment reproduced at [176] above.
The reference to Dr Snowdon’s answer to question 13 does not assist Woolworths. The question was whether Mr Sisko’s employment was a substantial contributing factor to his diagnosis. Dr Snowdon answered:
“His overdose appears to have been in relation to depression, which in turn, as discussed above, on the information currently available, had been precipitated by events at Woolworths, however, again I make this comment with the very considerable reservations above.”
Mr Perry did not identify the “reservations above”, but it may be assumed they were a reference to Mr Sisko’s alleged narcotic and benzodiazepine dependence, which Dr Snowdon said “predispose to mood changes, emotional instability in general, and misperceptions of interactions with others”. In view of the finding that Mr Sisko was not dependent on narcotics and benzodiazepines, this “reservation” is of no consequence.
Even if, as Dr Snowdon suggested, Mr Sisko had a predisposition to depression and had an increase in “emotionality”, because of narcotic and benzodiazepine dependence, for the reasons explained more fully below, that does not assist Woolworths, who must take their employees as they find them (State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286).
SECTION 9A
The Arbitrator’s decision
Applying Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi), and having considered the matters in s 9A(2), the Arbitrator found (at [74]) that Mr Sisko’s employment at the Shellharbour store was a factor “which was real and of substance” and therefore his employment was a substantial contributing factor to his injury.
Submissions
Mr Perry referred to passages in Badawi and submitted that the plurality in that case “specifically endorsed the proposition that ‘something which is minor is not substantial’”. He said the Arbitrator “deprived herself of the opportunity to weigh the contribution of employment with the contribution of [Mr Sisko’s] opiate dependence, because she found against the proposition that there was any such dependence, falling into error in reaching that conclusion”.
The Arbitrator erroneously rejected the submission made at the arbitration that “Dr Snowdon’s views on causation should be taken into account as he is the only medical expert to have taken into account and accepted the history taken at Shellharbour Hospital”. Had she not made that error then, “it would clearly follow from the observations of Dr Snowdon cited above that any contribution by employment was minor”.
Discussion and findings
In breach of Practice Direction No 6, no error has been identified under this heading. The submissions involve an assumption that the Arbitrator erred in her finding that Mr Sisko did not suffer from narcotic and benzodiazepine dependence. As I have held that she made no such error, this ground of appeal is without substance.
In any event, if the Arbitrator erred on the issue of narcotic and benzodiazepine dependence, that makes no difference to the outcome. Even accepting the account recorded at Shellharbour Hospital, it is clear beyond doubt that Mr Sisko’s employment was not only a substantial contributing factor to his injury (Major Depression), it was the substantial contributing factor. Regardless of his “reservations”, Dr Snowdon conceded as much in his answer to question 13 (reproduced at [182] above). On any objective view, Dr Snowdon supported Mr Sisko’s claim that his work with Woolworths caused his injury, namely, Major Depression.
It was only Mr Sisko’s anxiety symptoms that Dr Snowdon felt were not work related. To the extent that those symptoms resulted from the Major Depression, and Dr Westmore stated that “anxiety symptoms are very common in patients who are depressed”, they are compensable. In the alternative, to the extent that the anxiety symptoms resulted from narcotic and benzodiazepine dependence, and not from the Major Depression, if the hospital records are accepted as being accurate, that dependence resulted from stressful events at work.
In considering the issue of substance abuse disorder, Dr Pai made the important point that the development of that disorder for the first time in the fourth decade of life, or later, “almost always indicates the clinical suspicion of substance abuse disorder secondary to a primary psychiatric disorder such as Depressive disorder, PTSD etc” (emphasis added). Though Dr Pai ultimately found that substance abuse disorder was an “unlikely” diagnosis, his comments make it clear that, had that diagnosis been accepted, it would have been secondary to the depressive disorder, which had been caused by events at work with Woolworths.
Consistent with this conclusion, no expert found any factor, other than Mr Sisko’s work at Woolworths, to have played a role in causing his injury. Dr Pai noted Mr Sisko to be a family oriented man who owned a house at Shell Cove and was financially secure. He said that, prior to his injury, Mr Sisko was a self-motivated, outgoing person, who had multiple outgoing hobbies and interests. Dr Pai added that there was no reason for him to believe that Mr Sisko’s personal problems (for example, his wife’s illness) had contributed to his clinical condition. He did not believe that marital or financial stress, were underlying factors in Mr Sisko’s condition.
Notwithstanding that Dr Daya was aware of Mr Sisko’s brief periods of depression in 2001 and 2007, and that he had regularly used Tramal or Panadeine Forte since 1999, he concluded that Mr Sisko’s employment was “a major contributing factor in his psychological problem”. This opinion is consistent with Dr Westmore’s view that employment was a substantial contributing factor to the onset of Mr Sisko’s “Depressive Disorder”.
It follows that, even if it were found that Mr Sisko was dependent on narcotics and benzodiazepines prior to 21 May 2009, that would not have prevented a finding in his favour.
OTHER MATTERS
Mr Khan has submitted that the figures awarded for weekly compensation from 19 November 2009 to 31 December 2012 are incorrect and that they should be amended under the slip rule. If the appeal is unsuccessful, Woolworths consents to that amendment in the manner suggested by Mr Khan. The award will therefore be amended by consent to correct the errors at paragraph four of the determination. The award is corrected under the Commission’s appellate jurisdiction to correct errors under s 352, not under the slip rule.
With regard to the compensation payable from 1 January 2013, the Arbitrator said (at [102]) that she found Woolworths liable to pay weekly compensation in accordance with the amended provisions of the 1987 Act. She directed Mr Sisko to file submissions with respect to the amount payable within 14 days and Woolworths to file submissions in response in a further 14 days.
In compliance with this direction, Mr Khan filed submissions on 11 April 2013. Woolworths did not respond to those submissions, but filed the current appeal challenging the Arbitrator’s finding on liability. As a result, the Arbitrator has not dealt with Mr Sisko’s entitlement to weekly compensation from 1 January 2013. As the appeal has been determined in favour of Mr Sisko, the quantum of his entitlement to weekly compensation from 1 January 2013 remains outstanding and must be remitted for determination.
CONCLUSION
This appeal was without merit and sought to establish error based on several issues that had not been argued before the Arbitrator. The allegation of “improper” use of the evidence from the treating specialist, when no submissions had been made on that issue at the arbitration, was most unsatisfactory and should not have occurred. Moreover, Mr Perry’s submissions misrepresented Dr Pai’s evidence and ignored critical concessions from Dr Snowdon. That was most unsatisfactory.
DECISION
Subject to the amendment of the figures in paragraph four of the determination of 28 March 2013, which figures are amended by consent, the Arbitrator’s decision is confirmed.
Paragraph four of the determination of 28 March 2013 is amended by deleting the figures and dates therein and substituting the following rates of weekly compensation:
“4. (a) $575.10 from 19 November 2009 to 31 March 2010;
(b) $586.10 from 1 April 2010 to 30 September 2010;
(c) $594.00 from 1 October 2010 to 31 March 2011;
(d) $606.00 from 1 April 2011 to 23 April 2011;
(e) $496.00 from 24 April 2011 to 30 September 2011;
(f) $504.50 from 1 October 2011 to 31 March 2012;
(g) $514.00 from 1 April 2012 to 17 August 2012;
(h) $628.00 from 18 August 2012 to 30 September 2012;
(i) $638.10 from 1 October 2012 to 11 October 2012;
(j) $740.50 from 12 October 2012 to 1 November 2012, and
(k) $624.70 from 2 November 2012 to 31 December 2012.
The matter is remitted to an Arbitrator for a determination of the applicant worker’s entitlement to weekly compensation from 1 January 2013.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Acting President
16 July 2013
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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