RPC Computer Consultancy Pty Limited v Musial [2008] ACTSC 5 (5 February 2008)

Last Updated: 21 February 2008

RPC COMPUTER CONSULTANCY PTY LIMITED v RICHARD STANISLAW MUSIAL

[2008] ACTSC 5 (5 February 2008)

WORKERS COMPENSATION - entitlement to compensation - employment related injury, disability or disease - employment substantial or contributing factor

MAGISTRATES - appeals from or control over magistrates - arbitration - no error

Workers Compensation Act 1951 (ACT)

Ucar v Nylex Industrial Products Pty Limited [2007] VSCA 181 (27 September 2007)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 36 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 5 February 2008

IN THE SUPREME COURT OF THE )

) No. SCA 36 of 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: RPC COMPUTER CONSULTANCY PTY LIMITED

Appellant

AND: RICHARD STANISLAW MUSIAL

Respondent

ORDER

Judge: Higgins CJ

Date: 5 February 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This was an appeal from a decision of Magistrate Somes, handed down on 26 April 2007, making an award in favour of the respondent in consequence of the arbitration by him of a claim made by the respondent for compensation.

2. The appellant employed the respondent as a computer expert from about 2003. A principal of the respondent was Mr Cowdroy. Before then he and the appellant were independently employed experts. They were advised by their accountant to become engaged as employees of the appellant, though their activities remained much as before.

3. Mr Stretton, who appeared for the employer, conceded that the respondent had suffered a mental disorder. The question at issue was the contribution, if any, of his employment to that condition, which was a "disease" for the purposes of the Workers Compensation Act 1951 (ACT). The question at issue was whether the evidence established that the employment "substantially contribute[d] to the injury". A "disease" is defined as an "injury".

4. There was no dispute concerning incapacity. Nor was the evidence of the respondent in dispute.

5. It was his evidence that during the performance of a contract in July or August 2004 he developed symptoms, the progress of which led to his incapacity.

6. His Honour noted that Dr Jacob Foo, the respondent's treating general practitioner, had recorded, on 29 July 2005, symptoms of visual disturbance, disorientation and confusion. On 28 October 2003 Dr Foo recorded complaint of visual disturbance, "eyes feel `wide open', difficult to focus, tingling in left scalp, buzzing in left ear, pressure left parietal region, feels `funny' ... hard to concentrate".

7. Then, on 24 August 2004 came the first complaint by the respondent of tinnitus. On 13 September 2004 to that complaint was added "cannot read or concentrate, cannot sleep, struggling at work".

8. His Honour concluded from those notes that there had been earlier signs of the disabling condition which emerged in August 2004. The nature of the work undertaken by the respondent had not altered.

9. It had been a submission of Mr Stretton to his Honour that the lack of concentration followed the tinnitus. That history, his Honour considered, weakened that submission in so far as it was the appellant's contention that the tinnitus was the cause of the lack of concentration and subsequent inability to work.

10. His Honour accepted that the work the respondent was doing was generally stressful. He was entitled so to conclude. It seems to me to have been a fair assessment of the respondent's account of his duties. He had deposed that his inability to cope came on before the tinnitus. That evidence was not challenged in so far as it represented the respondent's perception. The appellant's contention was that the expert evidence did not support a causal connection.

11. There was no physical cause found, it seems, for the tinnitus. The respondent was referred to Dr Fatma Lowden, a psychiatrist. She has continued to treat him. She diagnosed depression and referred him to the Black Dog Institute of the Prince of Wales Hospital in New South Wales for a second opinion. That diagnosis was confirmed and Professor Parker of that institute considered the depression to be work-related.

12. Thus the respondent made a claim, though not until August 2005. His initial claim had been upon a disability insurer.

13. Other stressors were suggested by Mr Stretton as causative of the respondent's depressive condition.

14. His Honour accepted, as he was entitled to, that the respondent was a truthful witness whilst recognising that his memory could be faulty because of his illness.

15. His Honour accepted the medical evidence tendered for the respondent which supported the view that his depression was symptomatic of a bi-polar disorder. His tinnitus was considered a product of that disorder not a cause of it.

16. There were three treating psychiatrists (Drs Lowden and Barrett and Professor Parker) who considered the stress of work for the appellant had caused or exacerbated to a disabling extent the disorder which, in turn, resulted in the relevant incapacity.

17. His Honour accepted those opinions. They were cogent and well reasoned. There was no reason why his Honour should reject them.

18. One psychiatrist, Dr Saboisky, was of a different opinion. Though not accepting the opinions of Drs Lowden and Barrett and Professor Parker, he did not offer a view as to what was the trigger for the respondent's illness.

19. His Honour noted that Dr Saboisky had been engaged by the income protection insurer for whom the issue was the presence of disability rather than any connection of it with work. The focus of that inquiry was simply the presence of a disability rather than its cause. His Honour felt the other psychiatrists were more focussed on the ascertainment of the cause of the condition and, hence, their opinion was to be preferred.

20. That is, itself, a rational basis for preferring as more probable the opinions of the other experts to that of Dr Saboisky.

21. Dr Champion, a medico-legal expert engaged by the appellant, ruled out work as a causal factor. His Honour felt that Dr Champion was straining to exclude work as a substantial causative factor. Indeed, Dr Champion went so far as to suggest that the respondent's entitlement to income protection was reinforcing his incapacity and, hence, was causative of it. His Honour found Dr Champion's views unpersuasive. He was entitled so to do and there is no apparent error in the approach his Honour adopted. Indeed, I would have come to a similar conclusion.

22. The Notice of Appeal complained, effectively, that his Honour erred in accepting the evidence of and for the respondent rather than the evidence of the appellant's medical witnesses.

23. The appellant advanced a number of contentions on appeal.

24. Mr Stretton first noted that the claim was that the disabling condition commenced on 1 September 2004 when he went off work. It is clear that the onset of the depressive illness could not have been that date. As noted above, it was open to find onset during August 2004, possibly earlier. However, I do not consider that his Honour was finding that. The disability converted into unfitness for work on and from 1 September 2004 and that is a convenient way to describe the onset of the relevant disability.

25. I have already noted that it was clearly open to his Honour to find that depressive symptoms followed the work situation which caused the respondent to feel stressed but that the tinnitus symptoms followed those events. In any event, that would have seemed to me to have been the more probable sequence given the medical evidence noted above.

26. To so decide was not, as submitted, the making of a medical judgment by an unqualified person. His Honour was informed by expert medical testimony sufficient to recognise for himself the similar symptoms referred to in notes of July and October 2003 as bearing a connection to the 2004 symptoms.

27. Reliance was placed on Ucar v Nylex Industrial Products Pty Limited [2007] VSCA 181 (27 September 2007). There the Victorian Court of Appeal considered that reliance on in court behaviour of a party, out of view of his counsel, should be disclosed to counsel so that inferences to be drawn from it might be the subject of argument.

28. That is different from this case. Here all evidence was given in open court. The inferences that might be drawn from it could be and were addressed. The mere fact that a doctor (Dr Champion) was not challenged as to the accuracy of his history does not mean that other evidence, contrary to it, could not be accepted.

29. It was also contended that his Honour was in error in accepting the proposition that Dr Foo, the respondent's general practitioner, had agreed with Dr Lowden's diagnosis of bipolar disorder. However, at first Dr Foo had not related the respondent's depression to work or bipolar disorder. But coping problems had not then been mentioned to him and "looking back" he was of the view that it could be work-related (see AB82).

30. Taken as a whole, Dr Foo's evidence did warrant his Honour's conclusions as to the effect of that evidence.

31. Much of the appellant's criticism of the learned Magistrate's conclusions rested on the proposition that the tinnitus condition preceded the depressive symptoms. The mere fact that his Honour might have come to a different conclusion had he assessed, say, Dr Champion's evidence otherwise does not bespeak error.

32. It is apparent that Dr Lowden, as his Honour commented, was difficult to keep on track, however, it does not need to be explained that that would not have much to do with her honesty or professional accuracy. Some people do tend to wander off the path of strict relevance. It does not need to be explained that such a tendency, though frustrating, does not affect, per se, the acceptance of the evidence of that witness. It is true that in the proforma report to the disability insurer, Dr Lowden does not relate the bipolar disorder to work problems. She did not record an entry on a line inviting comment re "work problems" though a possible "ditto" symbol inviting a (+) does appear. At AB128 Dr Lowden did attempt to explain that that did not indicate an absence of knowledge of work problems. She was "distracted" by pressure of work herself. She did, however, record, opposite "insight/judgment/my own reaction "no idea - hard projects one after another".

33. Although as Dr Saboisky deposed, tinnitus could lead to depression, the alternative causal order could also occur.

34. That is enough to conclude that his Honour's assessment of the evidence was clearly open to him and, in my respectful opinion, correct.

35. The appeal should be dismissed. I will hear the parties as to any consequential issues including costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 5 February 2008

Counsel for the appellant: Mr G Stretton

Solicitor for the appellant: Dibbs Abbott Stillman Lawyers

Counsel for the respondent: Mr G Lunney SC

Solicitor for the respondent: Pamela Coward & Associates

Date of hearing: 16 and 17 October 2007

Date of judgment: 5 February 2008