Godfrey v Workcover/Royal & Sun Alliance

3 The worker is a man aged 47 years who after leaving school at the age of 16 undertook an apprenticeship as a boilermaker/wielder culminating in him obtaining that trade qualification in about 1973.

4 Thereafter, he worked in a number of different jobs as a boilermaker including a casual position with Port Adelaide Constructions Pty Ltd (the employer). He subsequently became a full time employee of the employer from March 1997.

5 Although most of the boilermaking work that was undertaken by the employer was undertaken at its premises, from time to time it was necessary for its employees to conduct such work off site.

6 It was the worker's preference not to undertake these duties. He would have it that it was essentially agreed with the employer that he would not have to undertake such work. Representatives of the employer who gave evidence before me put it somewhat lower than that, but be that as it may, on 6 March 1999, the worker was required to undertake boilermaking work at the premises of Adelaide Brighton Cement during the period of their shut down. In particular, he was required to repair a cracked plate section in the ballast tank of a ship known as the MV Accolade II.

7 At approximately 9 am on the morning of Saturday 6 March 1999 the worker, in the company of his workshop supervisor, Mr Andy Fitter, and an apprentice, Mr Reece Woods, went on board the Accolade II. Once aboard the boat Mr Fitter and the worker climbed into the ballast tank whereupon Mr Fitter showed the worker which damaged pieces had to be cut and repaired.

8 The worker then obtained his tools, including an oxyacetylene torch, and he went about his work. He used a grinder to mark out the area to be cut and used the oxy torch to cut the metal sheet. Whilst undertaking these duties, the area in which the worker was working became filled with smoke. The worker asked Mr Woods to get the ship wielder. He then became overcome with smoke and panicked. He left the area gasping for air. He was in a very distressed state. At about 10.20 am Mr Fitter had returned to see how the worker was progressing and he noted that the worker appeared to be distressed and was experiencing difficulty in breathing. The worker then left to borrow a ventalin inhaler from another employee. In the meantime Mr Fitter obtained an extraction fan to extract smoke from the area in which the worker had been working. Thereafter the worker complained that he was not feeling well and he went home.

9 After visiting the Wakefield Hospital complaining that he had been poisoned the worker was discharged. The following Monday he went to see his local General Practitioner, Dr Bill Tolis. Dr Tolis recorded a history of the worker feeling unwell, panicky, and short of breath. He prescribed medication to deal with his respiratory problems. He then reviewed the worker on 10 and 12 March. In this latter consultation Dr Tolis noted that the worker was complaining of a significant degree of anxiety resulting in a panic state. He gave the worker a certificate of incapacity for two weeks and he referred him to a psychologist. In the meantime, the worker had come to be referred to Dr Kim Laburn, at the Work Health Clinic. In the course of her consultation on 11 March 1999 she recorded the following history:

"He was initially booked into me with a `lung problem' and had in fact been given a prescription for respiratory drugs from his local medical officer. The story is that he was working in a confined space in a hull, at the wharf, welding a crack. This was on 6.3.99. After about thirty minutes he noticed fumes. Then he completely panicked. He `lost the plot'. When I saw him he still felt nauseated, and was experiencing panic attacks. He was unable to sleep, had a racing heart beat, and was having episodes of amnesia.

When I saw him he was agitated, nervy and in fact could not listen to me because of his total lack of concentration. He was obsessed with the lack of safety equipment and was very angry at his employer whom he said would not assist him in paying for his medication. I was extremely concerned about his psychological state and referred him that day for urgent psychological counselling." (BOD 33)

10 The psychologist, to whom Dr Laburn had referred the worker, was Mr Richard Oborn. In a report he prepared dated 1 April 1999 he records that at the time of his consultations with Mr Godfrey, he:-

"... presented as highly agitated, exhibited a wide range of the symptoms of sympathetic arousal, lacked coherence and sequence in his account and had ruminative and persistent patterns of thought. This amounted to a particularly florid presentation, and represented what I would clearly recognise as an acute anxiety condition." (BOD 28)

11 The worker returned to work with the employer on 12 April 1999 and worked the following day.

12 Over the next two or so weeks he worked most days but often for less than a full day.

13 On 23 April 1999, at the request of the Corporation's agent, Dr John Burvill, a psychiatrist, examined the worker.

14 Based upon that consultation Dr Burvill concluded that the worker had suffered an acute anxiety reaction which he attributed in part to the experience of feeling shortness of breath whilst working in a confined space in the ships hull. He thought, however, that what was of greater significance, was an altercation that the worker apparently had with a representative of his employer, Mr Glenn Miller, regarding an advance of money to pay for the prescription that he had been provided by Dr Tolis; the feelings that he had been lectured, intimidated and threatened by Mr Miller; and by the fact that he had been persuaded to work outside the construction workshop in circumstances that compromised his safety.

15 Dr Burvill was of the view that the worker had made a relatively good recovery from his psychological problems by the time of his consultation. He said in his evidence before me that he anticipated that within a couple of weeks of that consultation, the worker would have made a complete recovery and would have been capable of returning to normal full time duties. He said that he was fortified in that view by the certificate of Dr Laburn of 29 April 1999, which cleared the worker to return to normal duties from 18 May 1999.

16 Dr Laburn consulted with the worker on 29 April 1999 and in her report of 25 May 1999 she records:

"... he was still extremely agitated, unable to communicate properly and still very obsessive about the work site and the employer. He also was having early morning waking, consistent with depression." (BOD 33)

17 It would seem that the worker had expressed to Dr Laburn a desire to return to work and as a result, Dr Laburn issued the certificate to which I have just referred and she made arrangements to attend at the work place with the worker and with the employer on 18 May 1999.

18 The meeting proceeded as scheduled. Besides the worker, Mr Miller and Dr Laburn, two other employees of the employer, Ms Sonya Ronerberg and Ms Jenny Heyton were present.

19 During the course of that meeting the worker became highly agitated and out of concern for his health, Dr Laburn called a meeting to an end.

20 Although the purpose of the meeting was to discuss the worker's rehabilitation and his return to work program, as events transpired, the topics discussed included an issue relating to an alleged over payment of wages to the worker, an allegation by the worker that Mr Miller had lied, and a discussion about a medical condition concerning one of the employer's office staff.

21 Following that meeting the worker did not return to work and his employment was formally terminated a couple of months later.

22 The worker contends that as result of the incident that occurred on 6 March 1999 he has developed a severe psychological disorder as a sequelae to the physical injuries that he sustained. He says that consistent with the views expressed by the Full Bench of the Tribunal in Arrowcrest Group Pty Ltd v Nguyen [2000] SAWCT 121, on those facts a consideration of s 30A of the Act does not arise. Next he says, that in the all the circumstances there should be a finding of an ongoing incapacity from work from 18 May 1999 to date and continuing and an order that he is entitled to the relief sought.

23 I did not understand the Corporation to seriously take issue with the assertion that the worker is suffering from a debilitating psychiatric condition that has compromised his capacity for work and has resulted in the need of regular and ongoing treatment. Its case is that the condition does not result from a compensable disability. It says that the worker clearly has a personality that predisposed him to develop such a condition and that the worker's response to the incident on 6 March 1999 is an example of that. It says however that the effects of the incident have been spent and that the worker's ongoing problems are attributable to the events of 18 May 1999 and events thereafter, such as the termination of his employment. It says that in respect thereof s 30A applies and that the worker has failed to discharge the onus that that provision imposes on him. In maintaining this position it relies upon the opinion of Dr Burvill.

24 In addition to various medical reports that were placed before me I heard oral evidence from Dr Burvill, Dr Laburn and another psychiatrist, Dr Philip Kneebone. Dr Kneebone is a psychiatrist attached to the Queen Elizabeth Hospital who treated the worker after Dr Laburn had referred him for emergency admission in August 1999.

25 I did not find the opinion of Dr Burvill persuasive. In my view, it was based upon assumptions that were not borne out by the evidence.

26 Although Dr Burvill may have genuinely expected, based upon his consultation of the worker in April 1999, that the worker was in recovery mode and that his recovery would continue, I find that that was not in fact the case.

27 Much was made of the fact that Dr Laburn had issued a prescribed medical certificate clearing the worker to return to work on 18 May 1999. But that preparation of that certificate has to be considered in context and it was in the context of the worker positively asserting to Dr Laburn that he wanted to return to the work place.

28 Notwithstanding Dr Laburn's preparation of that certificate, she candidly admitted in her evidence before me that with the benefit of hindsight she recognises that she made a mistake and that she was wrong to have issued a certificate in those terms. She gave evidence, which I unhesitatingly accept, that in hindsight she recognises that the worker failed to have insight into his own problems.

29 The evidence of Dr Kneebone particularly impressed me. He explained that the worker's psychological makeup was as such that his natural inclination was to tackle whatever problems he was experiencing himself and to attempt to deal with them and move on with his life and that he had a natural disinclination to seek appropriate help.

30 I think this explains the dynamics that were in place in that period during which the worker saw Dr Burvill in April 1999 and the events of 18 May 1999. I find that the worker was deeply troubled by the events of 6 March 1999 and was significantly traumatised as a result of them. In his usual way, albeit with some medical assistance, over the weeks that followed he endeavoured to deal with those problems and I think that Dr Kneebone's illustration of a person wanting to get back on a horse having fallen off is particularly apt. On the one hand the worker wanted to get back to work to prove to himself that the problems that he was experiencing had been dealt with and that he had moved on. On the other hand, being back within that environment provided a potent reminder of the circumstances that had caused the problem in the first place and as result his feelings of panic and anxiety became heightened.

31 I think that it was this process that lead Dr Burvill to believe that the worker was on the road to recovery when he saw him on 23 April 1999. It was also this process which persuaded Dr Laburn that the worker was ready to return to work in mid May.

32 I was asked to ignore the opinions expressed by Dr Kneebone because he had not examined the worker until months after the relevant events occurred.

33 I do not consider that that criticism is justified. It is clear that Dr Kneebone has spent much time with the worker and has taken a detailed history from him. I have no reason to believe that the history that the worker provided to Dr Kneebone was false. On the basis of it Dr Kneebone has made a diagnosis of post traumatic stress disorder and major depression with panic attacks which he attributes to the events at work on 6 March 1999.

34 I agree with that opinion. It is one that sits comfortably with Dr Laburn's observations that in the dealings with the worker prior to March 1999, which were all in the context of industrial injuries, he came across a normal individual and that subsequent to the events of the 6 March 1999 he has came across as a vastly different man. He has now lost confidence, is unable to concentrate and is confused. She has noted that throughout the period from 19 March 1999 and 20 September 2000, during which she has consulted with him 37 times, the worker has repeatedly presented with marked anxiety, agitation, anger, symptoms of panic, deep depression, paranoia and confusion.

35 All of this leads me to find that as a result of the physical injuries that he sustained on 6 March 1999 the worker has suffered from an ongoing mental disorder in the nature of anxiety and depression, that has incapacitated him from work and has resulted in the need for him to incur expenses pursuant to s 32 of the Act. It is likely that other events, such as the meeting of 18 May 1999 and the termination of his employment have aggravated the situation, but not in a way that it can be said that the worker's ongoing problems do not result from the physical injuries he sustained. The worker has elected to limit his claim to this disability. For the reasons explained by King J (as he then was) in Australian Eagle v Federation Insurance (1976) 15 SASR 282 at 292, he was entitled to do so. See also: Wardleworth v Green [1996] SASC 5720; (1996) 66 SASR 421 at 432-436 per Doyle CJ and WorkCover v Beckwith (unreported Supreme Court of SA delivered 1 August 1996, S5774). The fact that the worker's ongoing incapacity might also be attributable to these other events is not to the point.

36 As a result of this finding it is not, in my opinion necessary for the worker to satisfy the requirements of s 30A.

37 But, even if I am wrong about that I would nevertheless conclude that the requirements of s 30A have been met.

38 It was quite properly conceded by Mr Preston, counsel for the Corporation, that even if I accepted Dr Burvill's opinion I should find that employment was a substantial cause of the worker's disability. That then leaves the question as to whether the requirements of s 30A(b) have been met. In my view they have. For the reasons explained above, I find that that the incident of 6 March 1999 continues to feature significantly in the worker's illness of the mind. That incident cannot be categorised as one of the disqualifying events stipulated in s 30A(b)(i)-(iv). As Doyle CJ explained in WorkCover v Summers (1995) 65 SASR 243, not every activity of the employer falls within these categories. Thus a consideration of the reasonableness of the employer's conduct in relation to the worker's welding on the Accolade II does not arise. Because this incident was so prominent, it cannot be said that the disability arises wholly or predominantly from any of the other stipulated events.

39 I therefore set aside the determination of the Corporation dated 7 June 1999, accepting the worker's claim for a physical injury only and for a closed period and its determination of 10 August 1999 rejecting the claim based on anxiety/panic attack. I determine in lieu thereof that the worker has been partially incapacitated for work from 6 March 1999 to date and continuing.

40 The worker is not of course entitled to recover weekly payments during the periods in which he received wages and from 6 March 2000 weekly payments, which he is entitled, must be reduced to 80 per cent in accordance with s 38A and 35(5) of the Act. The parties have not addressed me on the precise quantum of the worker's entitlements. I therefore adjourn this judicial determination to enable them to reach agreement on this and in default of their agreement I grant them liberty to apply.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.