Zlateska v Consolidated Cleaning Services Pty Ltd
[2008] VSCA 85
•26 May 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3722 of 2007
| LENKA ZLATESKA | |
| Appellant | |
| v | |
| CONSOLIDATED CLEANING SERVICES PTY LTD - and - NRMA WORKERS COMPENSATION (VIC) LIMITED | First Respondent |
| Second Respondent |
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JUDGES: | NEAVE and DODDS-STREETON JJA and OSBORN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 May 2008 | |
DATE OF JUDGMENT: | 26 May 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 85 | |
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ACCIDENT COMPENSATION — Employee with non-compensable knee injury claims psychiatric injury due to supervisor’s request for medical certificate – Claim that no evidence of incapacity for work - Whether rejection of claim vitiated by finding that psychiatric injury caused by employee’s awareness of incapacity to work due to knee injury – Whether trial judge’s reasons adequate to explain findings of fact, causation and contradictory evidence – Accident Compensation Act 1985 (Vic) s 82 – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R P Gorton QC and Mr R H Forsyth | John Dellios & Associates Pty Ltd |
| For the Respondents | Mr J J Noonan SC, Mr P H Solomon and Ms S Manova | Wisewoulds Lawyers |
NEAVE JA:
For the reasons given by Dodds-Streeton JA, I agree that the appeal should be dismissed.
DODDS-STREETON JA:
The appellant, Lenka Zlateska, appeals pursuant to s 52 of the Accident Compensation Act 1985 (‘the Act’) from the judgment of a judge of the County Court given on 11 December 2006. His Honour dismissed the appellant’s claim for weekly payments of compensation from 30 May 2002 in respect of a psychiatric injury which had allegedly arisen out of her employment by the first respondent, Consolidated Cleaning Services Pty Ltd (‘Consolidated’) on 30 May 2002. His Honour also ordered that the appellant pay the respondents’ costs.
The appellant alleged that as a result of a conversation with her supervisor at work on 30 May 2002, in which he asked her to provide a full medical certificate stating that she was fit for work, she suffered a catastrophic psychiatric injury rendering her totally incapacitated for work.
Section 52(1) of the Act provides:
Any person who was a party to proceedings before the County Court at which a judgement or decision was given or made may appeal to the Court of Appeal on a question of law raised during those proceedings.
Notice of Appeal
The appellant, by a Notice of Appeal dated 6 June 2007, identified the following questions of law:
1. The learned Trial Judge found that the [appellant]’s chronic adjustment reaction was a reaction to her inability to work by reason of her non compensable knee injury when there was no evidence which permitted the finding that as at 29 May 2002 and at relevant times thereafter the [appellant] was unable to work by reason of her knee injury.
2. The learned Trial Judge erred in that he failed to consider properly or at all whether the [appellant]’s reaction at work on 30 May 2002 constituted a mental injury arising in the course of her employment.
3. The learned Trial Judge failed to provide any sufficient reasons to justify his findings of fact that the [appellant] was unable to work at the relevant times by reason of her knee injury or his consideration of mental injury in the course of the [appellant]’s employment.
At the hearing of the appeal, ground 2 (which comprehended the element of ground 3 relating to the consideration of mental injury in the course of employment) was abandoned.
Background and Evidence
The appellant is now aged 51, having been born in Macedonia on 28 February 1957. She migrated to Australia in 1984 and is divorced with two children.
From 1984 until 1987, she was employed by Flair Menswear, engaged in ironing throughout the day. She developed an injury to her right arm and suffered a consequential psychiatric injury, for which she was paid compensation.
From about 1990, the appellant worked as a cleaner for Berkley Challenge. In 2000, Berkley Challenge was taken over by Consolidated, which became the appellant’s employer.
For about five years, the appellant worked for Consolidated on a full-time basis as a cleaner at the Crown Casino. Her duties involved mopping, scrubbing floors and using an industrial vacuum cleaner.
On 14 March 2002, the appellant, while shopping after work, slipped and fell in a fruit shop. She landed heavily on her left knee and consequently attended a medical clinic at Mill Park. A medical practitioner, Dr Tsigaratos, gave her a medical certificate stating that she was unfit for work for ten days. X-rays and an ultrasound of her knee revealed an injury to the ligaments and a possible cracked fracture of the lateral condyle.
The appellant returned to work after about a fortnight and continued her normal duties. On 16 April 2002, however, she received another medical certificate from Dr Tsigaratos to be off work for left knee pain until 18 April 2002. On 22 April 2002, she attended an orthopaedic specialist, Mr Kudelka.
On 29 May 2002, the appellant attended her general practitioner, Dr Gorgioski, complaining of knee pain, and received a certificate to be off work for one day.
On 30 May 2002, she returned to work, arriving at the usual time of approximately 6.50 am. She gave evidence that she handed the medical certificate obtained on the previous day from Dr Gorgioski to her supervisor, Clive McNamara.
There was disputed evidence about the interchange between the appellant and Mr McNamara.
The trial judge recounted the appellant’s evidence as follows:
The [appellant] said that Clive insisted that she produce a clearance certificate stating that she was able to work. She said Clive told her that:
"Legally, you are not allowed to continue. If you fall here, then you would be suing us."
The [appellant] asked Clive:
"Why are you doing this to me? I need the job."
The [appellant] said Clive replied:
”Take the things and go and work for two hours until I find a replacement for you to replace you."
He said:
"Until the other lady comes, you'll be working and after that you are not to work any more. Legally we can't keep you just in case you fall."
After about 30 minutes Clive came upstairs. The [appellant] said to him: "Why are you doing this to me?"
She insisted to him that nobody requested a certificate at the time of the incident and she continued to work thereafter. She told him:
"I have a house to pay. I need this job. I live by myself."
Clive replied:
"Because you are by yourself, you will go on Centrelink and you should go and see a solicitor."
The [appellant] kept on pleading with Clive to leave her at work because she needed the job. Clive replied:
"You listen to what I tell you. I'm the supervisor and you are the cleaner."
The [appellant] said:
"I know I am a cleaner."
She alleged that Clive put her down. He said he had no time to waste with her and he left.
At about 5 past 9 Clive told the [appellant] to give him the radio. He told her to transfer her job to another worker and to sign off. The [appellant] said she reacted immediately. She became numb, stressed and her legs became weak. The [appellant] said that she felt like she had lost everything, her house, her life, everything. She said:
"That killed me. That killed me. It cut me up".
The [appellant] said she was crying and Clive tried to calm her down. She said she was pleading with Clive to leave her at work. She repeatedly said:
"I need work, I don't need Centrelink, I don't need a solicitor." But Clive kept on saying, 'You listen to what I tell you.' He didn't want to waste any time, he didn't want to listen to me."
The [appellant] said she left the casino and got the train home, but she was confused. She got off at the wrong station. She was upset and lost. She felt as if she was going to explode. She thought to herself:
"It would be better if I'm dead instead of losing my house."
The appellant testified that she had pain in her left knee on 30 May 2002 and was also limping. She conceded that her employment was not terminated, but stated: ‘They never sacked me, but they destroyed me psychologically’.
The appellant conceded that she knew, on 30 May 2002, that ‘no doctor was going to pass her fit to work in view of the painful state of her knee’.
She denied that she was already crying when she first encountered Mr McNamara on the morning of 30 May 2002. She contended that he made her cry when he told her that she could not continue working.
Mr McNamara, in contrast, testified that on the morning of 30 May 2002, he observed the appellant limping and crying, asked her why and was informed that she had fallen at a supermarket and hurt her knee, which was sore and aching. He observed that one of her knees looked swollen and larger than the other.
According to Mr McNamara, he then told the appellant, without raising his voice or shouting, that ‘I think it’s best if she goes home because she had an injury’. ‘I said to her that I was going to send her home for her own well being … and I would get a replacement for her and I said did she want to stay around until I found someone or go straight away.’
Mr McNamara did not recall the appellant handing him a certificate when she first arrived at work. He testified that the appellant was already crying when he first saw her and was also crying after their conversation.
He denied that he told the appellant that he had no time to waste on her or that the situation was not his problem. He conceded that he told the appellant that she must obtain a full medical certificate before she could come back to work.
Mr McNamara agreed that when the appellant told him that she could not afford not to work, he suggested that she see the supermarket where she had fallen over, obtain legal advice and consider Centrelink if she could not work for an extended period.
Mr McNamara recorded in the incident book on 30 May 2002 that ‘I sent Lenka home today because her knee was sore.’
After the conversation with Mr McNamara, the appellant worked for approximately two hours until a replacement cleaner arrived.
The appellant consulted Dr Gorgioski on 30 May 2002 but did not obtain a certificate of fitness to work. She did not return to work after 30 May 2002. In November 2003, the appellant issued a proceeding under the Act claiming weekly payments of compensation from 30 May 2002 in respect of incapacity for work resulting from a mental injury which allegedly arose out of or in the course of her employment with Consolidated, particularly on or about 30 May 2002. The respondents denied that the appellant suffered the injury as alleged or was incapacitated for work.
The proceeding was heard in the County Court on the 4th, 5th and 7th of December 2006. On 11 December 2006, his Honour dismissed the appellant’s claim and published his reasons.
Oral evidence called by the appellant was given by the appellant, Mrs Josevska, the appellant’s daughter, a general practitioner, Dr Gorgioski, and psychiatrists Drs Wahr and Fail and Associate Professor Paoletti. The appellant also relied on the expert medical evidence of Mr Kudelka, an orthopaedic surgeon. The respondent relied on the evidence of a general practitioner, Dr Tsigaratos, psychiatrists Drs Shan and Gibney, orthopaedic surgeons Messrs Jones, Westh and Shannon, a rheumatologist, Mr Kostos, the Austin Hospital, and the supervisors of the appellant at Consolidated, Ms Coe and Mr McNamara.
Medical Evidence
The appellant’s general practitioner, Dr Gorgioski, gave evidence that her primary complaint on 29 May 2002 had been ‘the left knee problem’, and that it was ‘causing her pain to walk and to be on her feet for an 8 hour day as a cleaner’.
He testified that when the appellant consulted him on 30 May 2002, she told him that she had gone to work that morning, was sent home by the supervisor and was very upset because she had been dismissed from her job.
Dr Gorgioski asserted several times that the appellant told him that she had been ‘sacked and dismissed’. He stated that ‘the ongoing emotional upset all centres around the fact that she was dismissed’, upon which anxiety depression started. He testified that the appellant said ‘she wanted to work, she liked to work and she had been sacked’.
Dr Gorgioski was reluctant to state whether he recalled the appellant on 30 May 2002 requesting a medical certificate stating that she was fit to return to work, but ultimately conceded that the appellant informed him that her employer required such a certificate.
At several points, Dr Gorgioski asserted that the appellant was fit for work ‘until’ 30 May 2002. He then asserted that she was fit for work ‘on’ 30 May 2002.
Dr Gorgioski asserted that, although the appellant requested him to provide a certificate of fitness because her employer required it, and he believed her to be fit, he did not provide it, because there was ‘no need’.
At another point, Dr Gorgioski asserted that the appellant was unfit for work on 30 May 2002.
The following exchange occurred between the trial judge and Dr Gorgioski. His Honour: ‘What I can’t understand is, was she fit or unfit on 30 May – she was not fit, Your Honour, that day – since then – yes.’
Dr Gorgioski did not provide the appellant with a certificate of fitness on 30 May 2002. On the following day, he provided her with a WorkCover certificate of incapacity dated 31 May 2002 (backdated to 30 May 2002). It certified incapacity in relation to the appellant’s psychiatric condition from 30 May 2002 to 15 June 2002.
Dr Gorgioski distinguished between the appellant’s physical and psychological condition. He stated: ‘She was fit for work until she was sacked and developed the psychological condition’ and ‘if it wasn’t for that I’m sure she would have kept working’.
Although Dr Gorgioski asserted that the appellant’s knee injury would not have permanently deprived her of work capacity, his evidence did not indicate that she could have worked immediately. He stated:
If her knee was going to be big trouble, she would already had treatment done, arthroscopies or whatever, two or three weeks off, how much she needed …
Dr Gorgioski provided the appellant with WorkCover certificates throughout 2002, based on her psychiatric condition.
Lydia Coe, a shift and payroll manager with Consolidated, testified that on 20 October 2002, the appellant attended the workplace to deliver a medical certificate. Ms Coe recorded in the file that ‘Lenka came into work today to drop off her work certificate. She was limping slightly. I spoke with her and she said that she really wanted to return to work but can’t come into work while her knee is still [“sore”].’
On 2 July 2003, the appellant underwent an arthroscopy on her left knee at the Austin Hospital. At the time of trial, a second arthroscopy was anticipated. At trial, there was conflicting medical evidence on whether the appellant had a psychiatric condition, and if so, what had caused it. Drs Wahr, Paoletti and Fail considered that the appellant had a psychiatric injury. Dr Shan, who gave evidence for the respondent, considered that the appellant did not have a psychiatric injury. The medical experts’ reports were based on the appellant’s account of her exchange with Mr McNamara (which the trial judge ultimately rejected).
As the trial judge found, Dr Wahr considered that the events described by the appellant as occurring at work on 30 May 2002 set off a psychiatric depressive reaction.
Dr Wahr stated that it was a matter for the Court to determine what had occurred on 30 May 2002 and whether it set off the appellant’s condition, although he opined that the events set off a catastrophic reaction.
Associate Professor Paoletti diagnosed the appellant as having an associated depressive state. He considered that the events at work precipitated the appellant’s injury on 30 May 2002 and that her account of events had emphasised the supervisor’s inflexibility.
His report stated:
Whilst some role of her non-work related physical injury cannot be excluded, the bulk of her psychiatric illness appears to be related to a combination of the way she was treated at work when she was not allowed to continue and the financial effects of not being at work.
Dr Fail first saw the appellant on 3 June 2003. In a report dated 4 June 2004, he concluded that the appellant was suffering from a chronic adjustment reaction. The report stated:
It appears that the claimant has reacted to a very reasonable request made by the employers and that is that she obtain a medical certificate that she was fit to continue with her normal duties. The claimant was suffering from a non-work-related knee injury. The claimant has reacted in a rather catastrophic way to not being able to work as it appears that work is an important part of her life. She is not in any current relationship and it appears that a lot of her social relationships revolve around the people at work.
In examination-in-chief, Dr Fail stated that:
The appellant reacted in a rather catastrophic way and by not being able to work … Not reacting to being asked to get a doctor’s certificate but not being able to work. … It appears that a lot of her social relationships were involved in the workplace and she had significant financial pressures, she had to pay off her mortgage and I think that seemed to be the important things that caused her to react in such a psychological manner …
He stated:
She is reacting to the stress, stress being not being able to work, being told to go home, get a doctor’s certificate and the implication that she wouldn’t be able to work if she couldn’t get a doctor’s certificate.
Further, he considered that ‘it was what the physical injury actually meant for her that was more important’.
In cross-examination, Dr Fail acknowledged that the appellant had informed him of her limp and pain in the knee, while asserting that she could cope with the problem. She did not inform him that she had not worked on 29 May 2002 due to the knee problem or that she had a torn medial meniscus for which she subsequently underwent arthroscopy.
He acknowledged the high probability that the appellant realised at the time that she probably was not going to be in a position to return to work in view of her left knee condition and that he could not get ‘a straight answer’ as to why she had been unable to get a doctor’s certificate.
He was informed that the appellant conceded that she knew on 30 May 2002 that no doctor was going to pass her fit in view of the painful state of her knee.
Dr Fail then stated:
Dr Fail:Well, that certainly explains why she reacted in such a collapsing way, in such a catastrophic way. I assume she knew she couldn’t get a doctor’s certificate so therefore she wasn’t going back to work.
Mr Noonan:But she wasn’t going to be able to go back to work by reason of the knee injury wasn’t it?
Dr Fail:Yes. Yes.
Mr Noonan:And the reaction that you speak of, whilst it can be seen to be proximate to the time of the request, the reaction has its true linkage to an appreciation by her that by reason of her left knee condition she is not going to be able to do her work?
Dr Fail:Yes.
Mr Noonan:That explains the significance of being told to go and get a doctor’s certificate, is that she knew she wasn’t going to go back to work and so she is reacting to the significance of it, not to the actual event.
Dr Fail:Yes.
Mr Noonan: It is to the consequences rather than the actual request, isn’t it?
Dr Fail:Yes.
Mr Noonan:She knew – well, if what you say is true, that she knew what the consequences of that request were.
Dr Fail:Yes.
Dr Fail agreed that his conclusion would be fortified by the appellant’s acknowledgement in October 2002 that she would like to return to work, but was unable to do so because her knee was sore, her history to that effect given to the Austin Hospital in March 2003 and her ongoing knee pain.
In re-examination, Dr Fail agreed that the precipitating factor of the reaction was ‘the realisation that she couldn’t get a medical certificate, being told to get one.’
The following exchange occurred:
Mr Forsyth:What was the precipitating factor that happened at work that led to that?
Dr Fail:You mean being asked to get a doctor’s certificate?
Mr Forsyth:Thank you. And if it hadn’t been for her being asked to get a doctor’s certificate, are you able to say one way or the other as to whether she would have suffered the catastrophic reaction?
Dr Fail:If she hadn’t been asked that day, she certainly wouldn’t have.
Evidence on knee injury at trial
Mr Kudelka, an orthopaedic surgeon, examined the appellant on 22 April 2002 and 28 June 2002. His report to the appellant’s lawyers dated 29 July 2002, stated that when he first examined her (after her fall, but before the 30 May 2002 incident), he found considerable patello-femoral tenderness and formed the opinion that the appellant had sustained a ligamentous strain and possibly a contusion of the patella.
When he saw the appellant on 28 June 2002, after the workplace incident, Mr Kudelka reported that he:
[D]id not think that there was an indication for surgery to the left knee, but I thought that at the age of 45, it could take some months for her knee condition to improve and I suggest she continue with physiotherapy and continue to see Dr Gorgioski. I did not feel that her condition had stabilised at the time of my last examination, and asked to review her if symptoms persisted.
Mr Westh, an orthopaedic surgeon, reviewed the appellant on 13 November 2002. In a report dated 17 November 2002, he stated that her MRI scan showed an oblique horizontal undersurface tear of the posterior horn of the medial meniscus with a mild predial joint space compartment degenerative change.
The report further stated:
Ms Zlateska is still experiencing significant pain in her knee and I did suggest possible arthroscopic surgery pointing out ... that this may not necessarily completely fix her problem.
The appellant’s daughter gave evidence that, in the weeks after the workplace incident, the appellant had a little pain, which did not restrict her normal life.
Mr Kostas, a rheumatologist, by a report dated 8 July 2004, stated that at his examination of the appellant on 7 July 2004 she informed him of her knee injury and complained of other pain throughout her body.
Mr Kostas’ report did not refer to any investigation or examination of the appellant’s knee. It stated that her problem was a chronic pain syndrome and ‘the main reason that she finds herself in this predicament today is because she believes someone should pay for her misfortune which resulted from the injury to her right knee and led to her inability to work.’
Mr Shannon, an orthopaedic surgeon, examined the appellant on 1 December 2004. In a report dated 1 December 2004, he referred to the appellant’s knee injury and stated:
She had an arthroscopy of her knee performed at the Austin, in 2003, and the knee has improved but more recently she has been getting a sense of locking and swelling … Her left knee has scars from arthroscopy, a good range of movement and no effusion … X-rays of the left knee show early medial compartment osteoarthritis.
The report stated:
The fact of the matter is that despite her complaints Ms Zlateska did not submit a Work Care Claim nor did she lose any time from work until she injured her knee in non-compensable circumstances. It is unfortunate that she lost her job because of the non-compensable knee condition, and given her financial circumstances it is not surprising that the loss of her job has resulted in her psychological reaction and has probably tended to magnify the pain syndrome.
It concluded that ‘the appellant was fit for light cleaning duties’ and ‘I am aware of her left knee problem which certainly would have interfered with her work capacity at the time leading up to surgery but she seems to have made a reasonable recovery from the knee injury.’
The Austin Hospital Report dated 17 January 2005 stated that –
Mrs Zlateska was referred to the Orthopaedic Surgical Unit because of ongoing pain in the left knee and attended that clinic on 13 March 2003. Mrs Zlateska stated that the pain in her knee had prevented her from returning to work.
The report referred to a tear of the medial meniscus revealed by an MRI scan and that on 2 July 2003, the appellant underwent an arthroscopy and resection of the medial meniscus of the left knee, which was uncomplicated. The appellant nevertheless, on 17 July 2003, complained of increasing pain, rather than improvement. The most recent review on 26 February 2004 indicated that the pain was ongoing but variable, and generally somewhat improved.
The trial judge’s analysis
The trial judge found the appellant to be an unreliable witness, due to her presentation in the witness box, her exaggeration, frequent non-responsiveness and evasion in cross-examination, her unexplained denial to treating doctors in 2003, 2004 and 2006 of her past psychiatric problems, and her attempts to minimise the effect of her knee injury and to maximise the effects of her psychological symptoms.
He accepted the contrary evidence of Mr McNamara, whom he considered a straightforward witness of truth.
His Honour made the following findings of fact about the events of 30 May 2002:
1. The [appellant] spoke to Mr McNamara at the Crown Casino in the vicinity of the elevators near the Village Cinema complex.
2. Before any conversation with Mr McNamara, the [appellant] was limping and crying.
3. The [appellant] was both before and during the conversation emotionally upset.
4. When Mr McNamara saw the [appellant] crying and limping, he asked her why she was crying and limping and the [appellant] explained that she had hurt her knee in a fall. The [appellant] complained that her knee was painful. The [appellant]’s knee was swollen.
5. Mr McNamara said to the [appellant] that he thought it best if she went home. He said he would send her home for her own well-being. Mr McNamara was trying to look after the heath and welfare of a staff member.
6. Mr McNamara asked the [appellant] if she wanted to go home immediately or remain at work until he found a replacement. The [appellant] wanted to remain at work. She explained that she could not afford not to work. She needed the money, she had a mortgage to pay.
7. Mr McNamara told the [appellant] that before she could return to work she required a full medical clearance certificate.
8. After the [appellant] explained to Mr McNamara why she needed to remain at work, he suggested that she might need to get some legal advice in respect of her fall and, if she was not able to work for an extended period, she might need to consider Centrelink.
9. Mr McNamara did not terminate the [appellant]’s employment.
10. Mr McNamara spoke to the [appellant] in a calm and measured manner. He did not yell or scream at the [appellant]. He did not demean the [appellant] or state that he would not waste time on her. Mr McNamara was trying to calm the [appellant] as she was emotionally upset.
11. At about 9am the [appellant] signed off and handed in her radio. She was still emotionally upset and concerned about her situation.
The learned trial judge rejected the evidence of Dr Gorgioski as ‘entirely unsatisfactory … contradictory and confusing’ on critical matters. Dr Gorgioski was, his Honour found, a ‘most unimpressive expert witness’, who did not explain matters, including why he failed to provide the appellant with a medical clearance certificate on 30 May 2002. Dr Gorgioski also wrongly assumed, on the basis of a history rejected by the trial judge, that the appellant was upset because she had been dismissed.
The trial judge considered Dr Fail to be the most impressive expert medical witness. He accepted Dr Fail’s diagnosis that the appellant had a psychiatric injury of chronic adjustment reaction. His Honour found, however, on the balance of probabilities, that the appellant’s psychiatric injury was not a reaction to the words and actions of the supervisor. Rather, he concluded that it arose from the appellant’s reaction to her inability to work by reason of her non-compensable left knee injury.
His Honour therefore concluded that the appellant had not discharged the onus of establishing that the psychiatric injury arose out of her employment, in the requisite sense that the employment was a cause, for the following reasons:
1. I find the [appellant] was crying and limping before she even spoke to her supervisor.
2. I am satisfied that the [appellant] was suffering from significant pain and discomfort in the left knee on 30 May 2002. She was subsequently diagnosed as suffering from a torn medial meniscus. She has undergone one arthroscopy and is awaiting further surgery.
3. I find that the [appellant] knew as at 30 May 2002 that no doctor would certify her fit for work in view of her left knee injury. Therefore, the [appellant] had a true appreciation of the significance of this injury.
4. I accept the evidence of Lydia Coe that the [appellant] said she was unable to return to work in October 2002 while her knee was still sore.
5. The [appellant] was a committed worker who needed to work. She was seen to be very concerned about not retaining her job in 2000 when her employment changed.
6. I find that the [appellant]'s chronic adjustment reaction was a reaction to her inability to work by reason of her non-compensable left knee injury. I do not accept that her reaction was to the request that she obtain a clearance medical certificate or to any part of the conversation with her supervisor on 30 May 2002. Rather, it was to her realisation that her left knee injury prevented her from working. The [appellant] has reacted to the consequences of that left knee injury; namely, an inability to work with all that entails in respect of financial loss and the loss of work-related social relationships.
Grounds of Appeal
Ground 1
The appellant contended that his Honour erred because he based his decision on a finding that her injury was caused by her inability to work due to the knee injury on 30 May 2002, and for the short term thereafter, in the absence of any evidence to support it. His Honour thus, it was said, appeared to conflate a finding that no doctor would have given the appellant a full work clearance certificate with the issue of her actual incapacity to work.
Counsel submitted that the trial judge’s erroneous finding that the appellant was unable to work due to her knee injury undermined his rejection of her claim that her employer’s requirement for a medical certificate caused her psychiatric injury.
The appellant acknowledged that in order to determine the claim, it would have sufficed for his Honour to find, as he did, that he was not satisfied that the events at work were a cause of her psychiatric injury. It was unnecessary for him to go further and positively identify the cause of the appellant’s psychiatric injury. The gratuitous adoption of a causal explanation for the psychiatric injury which was not based on evidence, however, indicated that his Honour’s reasoning and ultimate conclusion were necessarily doubtful and unsafe.
Counsel for the appellant emphasised that, although she had time off work and was limping and in pain since the injury on 14 April 2002, she had been able to work (save for the specified days off) up until 30 May 2002. Her own assessment was that she could have continued to work had her employer not prevented her, and there was nothing in the evidence to indicate that the appellant was unable to perform her work as at 30 May 2002, or in the short term thereafter.
The respondent contended that the first ground of appeal was based on the false premise that the objective facts involved in the statutory test of capacity to work were properly the primary focus in this context. The correct focus was, however, the appellant’s state of mind and her own reaction to her work capacity as affected by the left knee injury.
In Zlateska v Consolidated Cleaning Services Pty Ltd,[1] the Court of Appeal considered the approach to determining whether an injury arose out of employment pursuant to s 82(1) of the Act. The Court stated:
We summarise our conclusions as follows. We are presently concerned with a typical claim under s 82(1), where the injury is said to have resulted from the act or omission of the employer ( including any servant or agent of the employer). The question which falls for consideration is whether it was an injury arising out of the worker's employment. The words “arising out of” the employment have long been recognised as requiring a causal connection between the employment or its incident and the injury. (Kavanagh v The Commonwealth (1960) 103 CLR 547 at 556 per Dixon CJ.)
For the reasons set out below, where it can be shown on the balance of probabilities that the act or omission of the employer was a cause of the injury, the worker will have established a sufficient connection to their employment to characterise the injury as “arising out of” their employment. (There may be exceptions to the generality of this proposition but we cannot for the present conceive of any. Nor did either counsel suggest any exceptions when this proposition was put to them by the President in the hearing.)
The question of causation is a matter of common sense. It is not necessary for the worker to establish that the act or omission of the employer was the sole or dominant cause of the injury, or that the employment itself created any "special risk" of or "special exposure" to injury.
Under the present legislative scheme, save in special circumstances with which we are not concerned, (See s 82(2B) and (2C).) it is no longer necessary to show that the employment was a significant contributing factor to the injury. But the circumstances will be rare where it can be said that the injury does not arise out of the employment if the employment was a significant contributing factor.
In determining whether the act or omission of the employer was a cause of the injury, the employer must take the worker as it finds him/her. Any special susceptibility or vulnerability on the part of the worker may explain why the particular act or omission is of causal significance. The fact that the act or omission would not have caused injury to a worker who did not have the susceptibility or vulnerability of the injured worker does not alter the causal character of the act or omission.
[1][2006] VSCA 141.
If the trial judge, in rejecting the cause alleged by the appellant, had adopted, albeit superfluously, a different but patently flawed causal explanation which was unsupported by evidence, it would clearly call into question his reasoning and ultimate conclusion. In such circumstances, there could be no confidence that the rejection of the appellant’s case was not dictated or influenced by a false assumption.
In my view, however, there was considerable evidence to support the conclusion that the appellant could not work, either on 30 May 2002 or, (to the extent to which his Honour implicitly so found), in the short term thereafter.
On 14 April 2002, the appellant had sustained the left knee injury in a heavy fall. She conceded that she suffered pain following 14 April 2002, and was limping and off work. The physical injury was initially diagnosed as a ligamentous strain and a possible contusion of the patella. In November 2002, it was diagnosed as a torn medial meniscus. The appellant was again unable to work on 29 May 2002 due to problems with her knee. On 30 May 2002, she was, from the outset, distressed, crying and limping. The supervisor did not sack or ill treat her. Dr Gorgioski did not provide her with a certificate, although aware that she urgently required one in order to satisfy her employer’s request. He did not satisfactorily explain his failure to do so.
The appellant informed Ms Coe on 20 October 2002 that she was unable to work due to the knee injury. She also informed the Austin Hospital on 13 March 2003 that she was unable to work due to the knee injury.
The appellant underwent an arthroscopy on the knee on 2 July 2003. She was subsequently scheduled for a further arthroscopy.
Some of the expert medical evidence also supported the view that the appellant was prevented from working due to her left knee injury. Dr Shannon stated that her ‘left knee problem’ would have ‘interfered with her work capacity at the time leading up to the surgery’. Mr Kostas assumed that the knee injury prevented the appellant from working. Dr Gorgioski conceded that the appellant may have needed time off if (as was the case), arthroscopy was required.
The appellant, in relation to ground 1, faced the high hurdle of establishing that there was no evidence to support the relevant factual finding. It was not sufficient to point to contrary or inconsistent evidence. The facts and circumstances referred to above constituted evidence on which it was open to his Honour to find, as he did, that the appellant was unable to work on 30 May 2002 and for a time thereafter. As the respondents contended, that finding was, moreover, but one element of six supportive findings based on evidence which, in its totality, entitled the learned judge to conclude that the appellant’s chronic adjustment reaction did not arise out of the workplace incident, but was due to her realisation that the left knee injury prevented her from working.
It follows that, in my opinion, the first ground of appeal is not made out.
Ground 3
The appellant also contended that the trial judge failed to provide sufficient reasons to justify his findings of fact that the appellant was unable to work at the relevant times.
On appeal, counsel for the appellant reiterated that a finding that the knee injury prevented the appellant from working was not open on the evidence. He also submitted that paragraph 6 of his Honour’s reasons failed to address the question whether the appellant could have continued to work despite the left knee injury, which demonstrated that his Honour did not analyse the causation issue properly.
Counsel submitted that even if the finding that the appellant was unable to work due to the knee injury were open on the evidence, the trial judge had failed to explain his finding that her reaction to that circumstance was the only cause of the psychiatric injury. Further, he did not address the equivocal quality of Dr Fail’s evidence.
The appellant’s more substantial complaint concerning the reasons for judgment thus went significantly beyond that contained in the Notice of Appeal. Before us, however, no objection was taken.
The standard required of reasons for judgment has been considered in numerous authorities.[2] Although the precise content of reasons may vary according to the nature, complexity and volume of the particular case, they must be of a quality sufficient to fulfil the fundamental function of informing litigants why they lost, so that they are not ‘left to wonder’.
[2]Nichols v Robinson [2001] VSCA 11 (per Winneke P, with whom Phillips and Charles JJA agreed), approved by Eames JA in Dwyer v Calco Timber [2006] VSCA 187. See also Dressing v Porter [2006] VSCA 215, [26] where Ashley JA stated that ‘what will be sufficient in a particular case will be influenced by the ambit of the dispute at trial’.
Where conflicting evidence is essential to the determination of a case, the reasons must acknowledge it and disclose why particular evidence is preferred. In Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis,[3] Maxwell P stated that the obligation to give adequate reasons entailed a rational explanation for preferring one witness’s opinion over another. Nettle JA, in Spence v Gomez,[4] observed that the judge is obliged to expose the reasons for ‘resolving a point critical to the contest between the parties … ; in other words, to ‘enter into’ the issues canvassed and explain why one case is preferred over another.’[5]
[3][2007] VSCA 46.
[4][2006] VSCA 48.
[5]Ibid [65].
In Hunter v Transport Accident Commission,[6] Nettle JA stated that a ‘mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is about as good as useless.’ [7] His Honour further stated:
Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those findings are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.
[6][2005] VSCA 1.
[7]Ibid [28].
The complaint in the Notice of Appeal that the trial judge failed to provide sufficient reasons to justify his findings of fact that the appellant was unable to work at the relevant times, is not, in my opinion, made out. As discussed above, his Honour set out the relevant evidence and his related findings in a comprehensive, logical sequence, which both supported and made plain his path of reasoning on that issue.
Similarly, in my view, the appellant’s more general complaints in relation to causal analysis and the treatment of Dr Fail’s evidence (which were not the subject of the Notice of Appeal) are not made out.
In the present case, the medical evidence revealed a diversity of opinions as to whether the plaintiff had a psychiatric injury and if so, what caused it. The oral evidence of the medical experts did not, in all cases, completely coincide with the written reports.
On the history and case presented by the appellant, the employer’s request for the full medical certificate was unjustified (as she was capable of working) and the request for the certificate was the sole cause of the psychiatric injury. An alternative cause of the psychiatric injury was the appellant’s realisation that the knee injury would prevent her from working. According to a third view, the supervisor’s request was a trigger, without which the psychiatric injury would not have happened. There was support for all three causal explanations in the expert evidence of Dr Fail.
A significant element of Dr Fail’s evidence on cross-examination however, supported the view that the cause was the appellant’s realisation of the consequences of her physical state, namely, that she could not go back to work.
His Honour found Dr Fail to be the most impressive medical witness and accepted his diagnosis of chronic adjustment reaction. He was, however, as his reasons reveal, alive to the inconsistencies in Dr Fail’s evidence about the causal role if any, of the request for the medical certificate. The trial judge expressly referred to elements of Dr Fail’s evidence which supported the view that the request for the certificate was the cause, the view that it was a trigger and the view that it had no causal effect.
His Honour also expressly stated that counsel for the respondents and counsel for the appellant ‘both accepted that there was support for each of their respective cases in the evidence of Dr Fail.’
Having noted the contradictory aspects of Dr Fail’s evidence, his Honour accepted his acknowledgement in cross-examination that the ‘true linkage’ of the appellant’s reaction was to her appreciation ‘that she was not going to be able to work by reason of her left knee condition.’
His Honour stated: ‘Thus the [appellant] was reacting because she knew she wasn’t going to be able to go back to work. It was a reaction to the consequences rather than the actual request.’
In the context of the above (including the medical evidence, the diversity and inconsistency of which his Honour clearly recognised), the evidence of the physical state of the appellant’s knee prior to and after 30 May 2002 and her conduct and statements in relation to it, his Honour concluded that he was not satisfied that the injury arose from the appellant’s employment.
The six supportive findings, in my view, constitute a clear and comprehensible pattern of reasoning which, in the light of the evidence, sufficiently demonstrate how his Honour reached his conclusion.
There is a fine distinction between, on the one hand, a reaction caused by the appellant’s realisation that she was unable to work due to an injury (from which incapacity her inability to obtain a medical certificate followed) and, on the other hand, a reaction caused by a request to obtain a medical certificate.
The subtle distinctions involved were inherent in the conflicting evidence,
which his Honour adequately acknowledged. It was open to his Honour to adopt a view of causation supported by relevant evidence, including significant elements of Dr Fail’s testimony. He made his path of reasoning manifest to the requisite degree.
It was not, in principle, essential to the validity of his Honour’s reasoning (which focussed on the appellant’s apprehension of her physical injury and its consequences) to find that she sustained a physical injury that prevented her from working on 30 May 2002 and for the short term thereafter. The appellant’s apprehension of the nature of her injury, even if mistaken, could have caused a reaction. The trial judge’s reasoning is nevertheless predicated on the assumption that the appellant understood, correctly, that the knee injury prevented her from working on 30 May 2002 and shortly thereafter. While an absence of evidence to support that assumption could undermine the reasoning process, there is, in my view, as discussed above, ample evidence to support the finding not only that the appellant apprehended on 30 May 2002 that her physical injury prevented her from working, but that the injury in fact had that effect. The fact of the symptomatic physical injury bore on the probability of the cause of the mental reaction.
His Honour adequately addressed the conflicting evidence on causation. He sufficiently explained his finding that the appellant’s psychiatric injury was a reaction to her apprehension of the nature and consequences of her knee injury, rather than the supervisor’s request for a medical certificate.
In my opinion, the third ground of the appeal is not made out.
Conclusion
In my opinion, the appeal should be dismissed.
OSBORN AJA:
I also agree that for the reasons given by Dodds-Streeton JA, the appeal should be dismissed.
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