Oliver v Bhp [2001] NSWCC 12 (12 April 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Oliver v BHP [2001] NSWCC 12


PARTIES:
Kim Oliver v BHP Steel (Aus) Pty Limited


CASE NUMBER: 40228 of 1999 of 2001.00


CATCH WORDS: Assessment of Compensation


LEGISLATION CITED:


CORAM: Bishop J

DATES OF HEARING: 6 September 2000
16 October 2000 - 18 October 2000
19 February 2001 - 20 February 2001


DECISION DATE: 12/04/2001


LEGAL REPRESENTATIVES

FOR APPLICANT: Mr R Ingram instructed by Maguire & McInerney
FOR RESPONDENT: Mr G Levick instructed by Sparke Helmore


JUDGMENT:

1. By order of 28 June 2000 two separate proceedings instituted by the applicant were consolidated. One such application dealt with a back problem and the other with a psychological problem. With regard to the former it was claimed that on 17 April 1998 the applicant had been working for about a week lifting heavy objects and he injured his back aggravating a pre-existing injury. It was further claimed that the general nature and conditions of his employment had also affected his back. Compensation was claimed on a continuing basis from 14 April 1999 together with lump sum compensation in respect of impairment of the back and partial loss of use of the right leg at or above the knee together with a claim under s 67.

2. The proceedings relating to the psychological injury were based on a specific injury on 28 October 1998 when the applicant was said to have been engaged in a rescue exercise at the Southern Mines Rescue Station requiring to wear breathing equipment. It was further claimed that on 13 April 1999 when working underground he suffered anxiety, panic, difficulty breathing and sweating. The general nature and conditions of his employment were also referred to and the injury claimed was a psychological injury of anxiety causing panic attacks. Weekly payments were again sought from 14 April 1999 together with medical and other expenses.

3. The back claim and the psychological claim will be dealt with separately in that order.



THE APPLICANT’S PRIOR INDUSTRIAL HISTORY.

4. He is presently aged 43, married with one son dependant to 31 December 1999. The applicant is presently a newsagency owner together with his wife. He went to school and obtained the HSC and subsequently did an apprenticeship as a fitter and turner but did not complete it because he said he was not too good at the academic side of things. He then worked for eight or ten years for the Water Board as a labourer and in 1979 joined the respondent. He disclosed nothing of relevance in his prior health.
THE EVIDENCE RELATING TO THE BACK CLAIM

5. For the first ten years approximately of his time with the respondent the applicant said that he worked at the coal face. At some time between 1982 and 1984 on a date on which he was not clear he said that he injured his back in the course of his employment and had some three months off work. This back problem also affected his leg. He was not sure which but thought it was the left. After appropriate treatment he ultimately returned to work to his normal duties and managed satisfactorily.

6. After this period of ten years his duties were changed and he became a driver of transport cars moving supplies in and out of the pit. This job he described as not as heavy as working at the coal face but on occasions it involved the loading and unloading of machinery parts which were urgently required. He would make about 15 trips a day with these vehicles down into the pit.

7. On 13 March 1997 he indicated that there had been an urgent requirement for some cement and he was lifting a bag of it onto the dolly car when he sustained some pain in his back at the same level as previously. His recollection was however that on this instance the pain was really on the other side from the previous problem. He had a little bit of tightness in his legs with pain radiating down to the right groin. He had about a week off work, then about six weeks on light duties and then returned to his normal duties driving the dolly car although a certain amount of physiotherapy, hydrotherapy and chiropractic treatment continued after he had resumed his employment.

8. On 17 April 1998 he was loading equipment required for a longwall changeover. He had felt some tightness in his back for a couple of days previously but whilst loading this equipment he found that he could not straighten up. He continued his shift under difficulty but that night had severe pain and went to Bulli Hospital where he was an in-patient for four days followed by 12 days in a private hospital. He had physiotherapy and other modalities of treatment and was some six to eight weeks off work. On his resumption he was on light duties on the surface for a period and then following this rehabilitation plan he returned to his normal duties driving the dolly car in about August 1998 although he was still having problems with his back.

9. He described his back as still causing problems even now with periodic spasms and occasional problems in his left leg. His back and leg problem he said involved interference with his ability to walk in the way he used to and also interferes with surfing and paddling a surfboard. He used to do some swimming for the back problem but has trouble doing so. His jobs around the house have also been interfered with. He agreed that he would still be fit from the point of view of his back to do the job driving the dolly cart.

10. On the medical side reports of three qualified doctors were tendered.

11. Exhibit L was a report of Dr Barry Bracken, an orthopaedic surgeon who examined the applicant on 2 August 1999. He obtained a history consistent with that outlined above as to the old injury and the two in more recent years. On page four of his report Dr Bracken gave a careful analysis of the radiological evidence which he had before him which included plain x-rays and three CT scans. The doctor concluded that as a direct result of the episode on 13 March 1997 the applicant had sustained a right postero-lateral disc protrusion at L4/5 then associated with right leg pain. This was aggravated on 17 April 1998 but the most recent CT scan showed that the level of disc bulging had somewhat subsided. Nevertheless as a result of these injuries and the earlier injury the doctor was of the view that the applicant had a very clear disability. His complaints he considered were reasonable and he felt that it should be assessed at a 16 per cent permanent impairment to the back. He felt that the applicant was unfit for full underground mining duties but that he was probably fit for his job driving the dolly car.

12. Dr Bentivoglio (Exhibit M) saw the applicant on 11 June 1999. He considered that the applicant sustained a disc protrusion in the injury in the early eighties. He made a good recovery from this but the 1997 and 1998 injuries caused further damage. He assessed the impairment of the back at 25 per cent together with 7.5 per cent loss of the efficient use of the right leg.

13. Dr Lyons (Exhibit 7) saw the applicant on behalf of the respondent. His assessment of the situation basically agreed with that of the earlier specialists but he assessed the permanent impairment of the back at 12 per cent and did not consider that there was any assessable loss in the right leg. He considered that two thirds of the problem should be related to the initial injury in 1982 and one third to the injuries in 1997 and 1998.
SUBMISSIONS WITH REGARD TO THE BACK CLAIM

14. These submissions were reasonably short consistent with the fact that there was no real dispute about the particular injuries in question. Not unnaturally the respondent favoured the lower end of the competing assessments and the applicant the higher. It was also pointed out that the applicant gave evidence that when he was having his major psychological problems his back seemed to him to be worse. It was put that there was not much evidence supporting a permanent loss of the efficient use of the right leg as pleaded. There was also discussion about the question of a deductible proportion under sch 6 pt 6 cl 6. The only doctor to assess this was Dr Lyons who put it as indicated above at two thirds.
CONCLUSIONS WITH REGARD TO THE BACK CLAIM

15. The impact of the back injuries on the question of incapacity will be dealt with at the end of this judgment. However basic conclusions can be expressed at this point. I am impressed by the thorough analysis in the report of Dr Bracken particularly of the radiology. There is as he put it no doubt that the applicant has suffered a disc lesion in his lumbar spine. I accept the evidence of Dr Bracken that that precludes the applicant from the unrestricted duties of an underground miner. However as he himself conceded he could have continued to do his job driving the dolly car. Because of the applicant’s good industrial history post 1982 including a period of working on the face I am not really persuaded by the view of Dr Lyons as to the appropriate deductible proportion. His approach may have some merit from a clinical point of view but I think that this must be to an extent modified by the events over the years. With regard to the extent of any impairment taking into the account the applicant’s own complaints and my own assessment of the material I think that the answer lies between the views of Dr Bracken and Dr Bentivoglio and I will in due course find a 20 per cent impairment of the back. I do not accept the argument that in the absence of anything more precise the statutory deduction under s 68A is attractive. The radiology as outlined by Dr Bracken is more significant than that. I consider that a deductible proportion should be found of 40 per cent.

16. I do not consider that the evidence leads to any award with regard to partial loss of efficient use of the right leg.
THE APPLICANT’S CASE WITH REGARD TO THE PSYCHOLOGICAL CLAIM.

17. This case involves the consideration of the evidence of the applicant and his wife, the evidence of a number of witnesses from the mine and consideration of medical material. Matters will be dealt with in that order.

18. The applicant described a training session at the Southern Mines Rescue Station. Everybody was undergoing this training which involved amongst other things the use of an emergency unit called a Fenzy. This unit involved a bottle attached to the belt and a line bringing up a mouth piece and also some clips for the nose. The rescue station contained a simulation of an underground mine situation in a large dome.

19. He described how on 28 October 1998 he with a number of others was directed into the dome and told to put on the Fenzy unit and wait to be rescued. He described how he put the unit on but had difficulty with breathing and sat down and then stood up fearing that he might have bent the tube. He said that he was breathing with difficulty, his heart was pounding and he was sweating and that he could not get the mouth piece back in. The simulated rescue took place and he and the others were taken outside and he went immediately to the toilet in a distressed state. He felt strange and dizzy. He had previously used a self rescuer in earlier training but not of this particular type. After this first episode at the rescue station the roles were reversed and he and his colleagues were required to put on full oxygen equipment and rescue the other miners. This he said he managed. The training session also involved some fire fighting drill and some paper work.

20. The applicant indicated that he had not previously had feelings like this. At all events after the training session he resumed his normal job of driving the dolly car but described how probably three weeks later he woke up in bed feeling very unsettled, scratching and sweating heavily. He went to work the next day which was a normal day. However he said that these attacks continued until one Friday night in January 1999 he again had symptoms in bed, he was choking and could not breathe. In the intervening period he had had what he described as small sensations of itching. The next morning after this Friday night he consulted his GP, the records showing that this was on 23 January 1999.

21. Also in this three month period before 23 January 1999 he had some episodes of tightness in the chest and recalled one particular episode when he and his wife were at the pictures at Port Kembla. He was however managing his work satisfactorily.

22. Late in February 1999 on a Sunday morning he had another of these attacks and went to Bulli Hospital to be checked out and then returned to his general practitioner.

23. The applicant went on to describe the second pleaded injury on 13 April 1999. The dolly car had come to a halt with a battery problem somewhere down the tunnel. The applicant volunteered to take a battery down to change it but he had a further attack on the way and was unable to get back up the tunnel and went down to pit bottom and rang to the surface for his tablets. When he got back to the surface he was not too good and went to see his general practitioner and was referred for counselling to a Mr Wenzel, a psychologist.

24. He was put off work and returned on a rehabilitation program on the surface in June 1999. After a period arrangements were made for him to go underground with the initial visit being in the company of the rehabilitation officer and the pit doctor. He managed this initial visit satisfactorily and was then asked the next day to commence a program of working four hours on the surface and four hours doing maintenance jobs underground. He managed this for two days only. On the first night he had sleeping and breathing problems and told the rehabilitation officer. He was maintained on surface duties while discussing the problem with management. Ultimately he said he was told to go home until he was fit to resume work underground on a full time basis. He soon realised that he would not be able to go back underground because he was getting claustrophobic problems even travelling in elevators. Ultimately in about September 1999 he took a voluntary retirement. Then in early 2000 he and his wife bought a newsagency at Thirroul in partnership. In his evidence in chief the applicant indicated that he was not doing very much himself at this newsagency but his wife was doing most of the work. He also recalled that he had had some claustrophobic experiences while undergoing a CT scan with regard to his back.

25. The applicant was subjected to a lengthy and methodical cross-examination. He maintained that he had not had any previous psychological problems. He also indicated in his testimony on 16 October 2000 that the first time that he thought that the incident of 28 October 1998 was significant was after visiting his doctor who said that she felt something must have caused this. However after some pressing he indicated that he would accept that the first time he made reference to the Mines Rescue Station incident to his general practitioner was on 13 April 1999. It was not mentioned to the general practitioner or her partner at the time of consultations on 23 January 1999 or 25 February 1999. It was put to him that he told his general practitioner, Dr Ellacott,. at a consultation on 19 March 1999 that he had been having anxiety attacks for eight to ten weeks (ie since January 1999). He was unable to recall why the doctor would have noted in her history that he had indicated an attack years ago. However the applicant subsequently recollected this incident which will be mentioned in a moment.

26. He described the symptoms in early 1999 as similar to those at the mines Rescue Station to a certain extent but that they got worse.

27. His problems in the Rescue Centre got worse after the trainer left the site. He agreed that he did not complain to the instructor because he was not there when the trouble started and that he only told Mr Banks a fellow employee. He was unable to remember an assessment form following from the Fenzy training but when the form which was tendered was put before him he indicated that it looks like my signature.

28. He agreed that he resumed his normal duties on the day following the Mines Rescue Station training and continued them until 13 April 1999. These journeys involving the driving of the dolly car regularly during the day down the dark tunnel.

29. He was further taken through the history about what he told Dr Ellacott of problems in a plane flight to the Gold Coast on holidays and attending a show in a casino prior to April 1999.

30. He agreed that he probably could have resumed work at the face with regard to his back and would be probably be still at the mine if it was not for his psychological problems. He was then cross-examined in some detail about attending a football match in a crowded grandstand without any apparent problems with his claustrophobia.

31. He did say however that by October 2000 he was starting to feel a bit better and finally indicated that he recalled that the complaint many years previously referred to by his general practitioner took place when he was with his wife and some friends on a skiing holiday about six years previously. He also agreed that he had had a fear of heights all his life and that this produced some degree of anxiety.

32. There were two characteristics of the way in which the applicant gave his evidence. The first of these was that he presented in a very flat and unemotional way. The second was that to a lot of questions he indicated he was unable to remember. These memory problems moved into the realm of evasion at times when being cross-examined particularly on the issue of the football games.

33. The applicant’s wife was called to give evidence. She described how the newsagency was structured and the various part-time employees that were there. She said that initially that she did most of the work herself but that in the last six months the applicant was doing more. This evidence was given on 19 February 2001 and would accordingly indicate that from about late August 2000 the applicant’s ability to do things in the newsagency started to improve.

34. She also discussed the economics of the newsagency and this will be returned to further on in this judgment. With regard to what she could say about the applicant’s problems she recalled the episode of him fidgeting and stating that he was feeling funny in the picture theatre towards the end of 1998. She also confirmed the evidence of the first major attack at home in January 1999.and also covered the episode at Bulli Hospital and the holiday trip to Queensland.

35. With regard to the episode of 28 October 1998 at the Mines Rescue Station it is useful to quote the following section of her evidence.:

Q. Do you remember if he ever told you of any incident that happened to him at work or anywhere else. A. At the Mines Rescue Station he told me that something had happened to him then.

Q. I would like to ask you some questions about that discussion. Where were you both when he told you about that. A. We’d just arrived at home.

Q. From where. A. Him from the Rescue Station and myself from work.

Q. Are you saying this is happening - this has happened on the day that he went to the Rescue Station. A. Yes. It was unusual for us both to arrive home at the same time because Kim was always on afternoon shift, and he’s normally not there. So we both arrived home at the same time basically. He just popped in the door and I drove in the driveway.

Q. Yes. So as you drove in the driveway, what, you saw him at the front door, or - A. Yes.

Q. And either then or soon after that, did you notice anything about him. A. No, there was just talking. As soon as I got out of the car - he waited for me to get out of the car and I just asked him how he went today at his course, ‘cause I knew he had gone to the course, and he said “Oh, well, actually, I went a bit funny”. He said “I had trouble with the breathing apparatus”, and I said “What do you mean, “funny”? and he said “I don’t really know, I just went a bit funny and had to go to the toilets and splash water on my face” and I said “How do you feel now?” and he said “Oh, alright, I suppose”.

Q. Do you recall you husband complaining of any problems about feeling funny or strange before that. A. No, I don’t think so.

36. She indicated that she did not really observe anything abnormal with her husband before the episode of December 1998.

37. At the present time she said that he is doing a lot of hours in the shop and sometimes starts as early as 4.30 am.

38. Mrs Oliver impressed as a very genuine witness. While to a certain extent she seemed a little vague on detail I see no reason not to accept her evidence of the discussion that took place when she and her husband arrived home on 28 October 1998.

39. The applicant called in his case a number of witnesses from the mine.

40. The first of these was Barry Banks, formerly a plant operator with the respondent, who attended with the applicant on the training session at the Mines Rescue Station on 28 October 1998.

41. Mr Banks indicated that after having the Fenzy mouthpiece in for about five minutes he had some difficulty with the build up of saliva.

42. After six or seven minutes when they had donned the equipment he noticed that the applicant appeared to be sweating and twitching and that his eyes were bulging. He saw the applicant spit out the mouthpiece and he encouraged him to try again but without much success. Not long after this they were taken out of the dome. When they got out he described the applicant as very white and pasty. He recalled in general terms another episode subsequently at the mine where the applicant looked grey and in trouble and wanted some medication. He said that he did not raise the applicant’s problem with either the applicant or the supervisor, Mr Shrubb.

43. He noted in passing that there had been talk about automating the dolly car in the mine for years.

44. Mr Banks appeared to be a straight forward witness.

45. Richard Kincade was in 1999 a bathroom attendant and first aide man at the mine and occasionally drove the dolly car. He recalled an episode the time and date of which he could not recall of speaking to the applicant on the ramp going down to the dolly car. The applicant appeared flushed and sweating with his eyes enlarged and was sitting down. He told Mr Kincade that he was crook but did not want to be checked out and just wanted to rest. He asked Mr Kincade he would take the dolly car down and pick up the shift instead of him which the witness did do. He made a note of the episode in his diary and when the applicant’s wife picked him up he suggested that she should take him to the doctor. He did not recall any other episodes before or since.

46. Mr Kincade also appeared to be a very straight forward witness.

47. Grant Ostwald was employed by the respondent about the same time as the applicant but remained working at the face. He recalled an episode setting up a panel when the applicant was part of the crew. He thought that he looked a bit down and that subsequently in the crib room he seemed a bit embarrassed and took some tablets and said without giving any details that he had been having some turns. He thought that the incident occurred on 16 March 1999 but conceded that he did not have a good recollection for dates now but he felt that this was the first date he was back from leave.

48. Whilst Mr Ostwald as he said did not seem to have a precise recollection as to times he was an acceptable witness.

49. Edward Betts gave evidence on two occasions. He was a first aid man and lamp room attendant employed at the mine. He outlined the system of recording of injuries in the mine which was that if any first aid attention was required the matter was formally written up in a medical record but if there was no treatment a document called a D form was kept in the room. He recalled that shortly after the Rescue Station episode the applicant spoke to him about it and said that he had trouble with the Fenzy unit. He did not ask him to make an official record of the complaint and he did not make such a record but he wrote a little note as to what the applicant had told him. He also recalled a subsequent episode involving the battery problem in the dolly car when the applicant was in a very nervous state and he would not let him drive home. On being recalled the witness produced the book from which he said his little note was taken and was cross-examined about his statement to the investigator and his recollection generally. Without going into any detail of the particular areas of cross-examination I found Mr Betts to be a confused and unreliable witness. His testimony is not in my view of any great assistance.

50. The final witness was Brian Begley. He thought that in about October 1998 he had a discussion with the applicant in the lamp room about the Rescue Station episode and that the applicant indicated that he did not like the Fenzy escape unit on his face. He said that he wrote out a statement about all this which was subsequently produced. He was very firm in his evidence despite a very thorough cross-examination about the circumstances of the statement. The testimony of the witness must in my view be accepted with some reservation. I received a very strong impression that he was a person much closer to the applicant than he endeavoured to depict.

51. The medical evidence in the applicant’s psychological case came from his general practitioner, Dr Ellacott, Mr Wenzel, the psychologist and a psychiatrist, Dr Brown.

52. Dr Ellacott indicated that she was a general practitioner of considerable standing and had had a lot of experience with mining patients including those with psychological problems. She confirmed that the first consultation with the practice on the applicant’s current difficulty was on 23 January 1999 when he was seen by her partner and that she first saw him on 19 March 1999. She confirmed the history of recurrent anxiety attacks for the previous eight to ten weeks and a history of an attack some years ago. She described how he came back on 13 April 1999 having had an attack whilst underground in the pit. It was then that he discussed with her the episode in the Mines Rescue Station in October 1998. This was the first time that episode was mentioned. She said that she may have said to the applicant I wonder what’s triggered this. The applicant’s testimony of what happened in the Mines Rescue Station on 28 October she considered to be a very good description of a panic attack. She indicated that in her practice she had previously encountered situations with patients saying they were suffering stress after a simulated exercise at the Rescue Station. She could not however state that this was anything to do with Fenzy masks. When he took the voluntary retirement package she was of the view that it was his psychological problem that would stop him driving the dolly car.

53. She thought that the episode some years ago in the caravan was probably a panic attack but not of such severity as she was told about in October 1998. The delay in reporting the episode of 28 October she described as surprising but explicable. She thought that the applicant’s fear of heights was simply a basic fear that he coped with falling short of anxiety. She agreed that for the applicant after October to continue his normal job driving the dolly car in the dark tunnel was a challenging situation for someone who was suffering claustrophobia.

54. Gerhard Wenzel, is a clinical psychologist of some considerable experience to whom the general practitioner referred the applicant. The first consultation was on 30 April 1999. At the initial interview he was given the history of the episode of 28 October 1998 in the Mines Rescue Station. He considered overall that the applicant was undergoing recurring episodes of anxiety interspersed with panic attacks, claustrophobia and some degree of depression. The panic attacks he described as a consequence of the underlying anxiety. On pre-existing fears of heights he considered that these types of problems are often found with people and it is a question of degree as to whether the particular fear moves from something that was a bit unpleasant to something sufficiently strong to classify it as an anxiety disorder. However that together with the episode in the caravan while skiing indicates a possibility of a person with some underlying anxiety. The applicant’s duties driving the dolly car he agreed would be very challenging for somebody with a claustrophobic problem. When cross-examined about the failure to report the episode of 28 October to the general practitioner for a considerable period, Mr Wenzel was clearly somewhat troubled. He indicated that he could not exclude the applicant suffering from an underlying anxiety condition which was constitutional. If anything happened on the episode of 28 October 1998 it was possibly a short term aggravation of an underlying condition. However on the history given to him by the applicant Mr Wenzel maintained his view on the issue of causation, namely that the incident of 28 October was the triggering point. However there was clearly in his evidence an element of disquiet on this issue.

55. Dr Phillip Brown, a specialist psychiatrist also gave evidence for the applicant. He agreed with the diagnosis of panic attacks in conjunction with an anxiety disorder. He explained that when the first panic attack occurs one looks for a precipitant. There is not always one to be found. If the description of what happened in the Rescue Station was as put to him he considered that that would have been sufficient to act as the precipitant.

56. He agreed that the applicant’s continuation of driving the dolly car would be difficult for a claustrophobic. Despite cross-examination of some meticulousness the doctor declined to rule out his causation argument by the delay in the report of the incident of 28 October. He felt that it could be explained by the fact that people with panic attacks worry the attacks rather than the cause. The doctor also felt that security of employment could be acting as a stressor. Finally he conceded that in clinical practice with this type of anxiety disorder a precipitating cause cannot be identified in about 50 per cent of the cases. He also agreed from his experience of examining the applicant there was no reason why he should not be able to give his evidence in a straightforward fashion.
THE RESPONDENT’S CASE ON THE PSYCHOLOGICAL CLAIM.

57. This comprised evidence from the supervisor of the training session at the Mines Rescue Station and from psychiatrists Dr John Shand and a report from a psychiatrist Dr L Lee.

58. Mr Paul Shrubb indicated that as at 28 October 1998 he was a contract training officer at the Mines Rescue Station. He described the training as directed towards outburst awareness. An outburst is a type of emergency that can occur below ground requiring the immediate use of breathing equipment. He described how he carried out an introductory presentation with regard to the Fenzy equipment. He confirmed the team approach for rescuers and rescuees and asked that anybody having difficulties with the equipment should say so. He did not remember if he came in with the rescuers in the case of the applicant. However he did stress that workers were told not in the case of this simulation to remove the mouth piece until they were in clean air and were told to do so. He said that he did not see the applicant with the unit on and the mouthpiece out and no one reported that to him.

59. Exhibit 1 was the self assessment form and he identified his signature on the form. He said that he spoke to the applicant during the day and he had no complaints put to him. In his opinion it should have been seen if the applicant was without his mouth piece in position whilst leaving the mine simulation area.

60. Mr Shrubb was a very presentable witness but left the impression of a general recollection only.

61. The reports of Dr J Shand were tendered and he gave evidence on behalf of the respondent. He agreed on the history given to him the incident on 28 October 1998 was the first episode of a panic attack as distinct from claustrophobia. He found the failure to report the symptoms from 28 October 1998 to the general practitioner for the period indicated earlier puzzling and difficult to explain. On the history given to him the symptoms were much the same on each occasion and he would have expected the applicant to have remembered them. He was unable to furnish an explanation for the applicant’s constant inability to remember the answer to questions when in the witness box unless the applicant was at the time acutely anxious or disturbed. This would demonstrate as a morbid appearance, slowness of response and depression demonstrated in his face. There could well have been some agitation capable of some external perception. On a review of the evidence given he did not consider that the back condition played a part in the applicant’s psychological picture. In his view the condition of anxiety from which the applicant was suffering was basically of constitutional origin. If the history of 28 October was correct that could have triggered of the first panic attacks. Going back to the delay in report Dr Shand indicated in the transcript of 19 February 2001 at page 14 in answer to a question on this issue:

Well, if he thought it worth mentioning the following day at the first aid station and he had further attacks of the same kind, they should have formed a continuum in his mind when it came to giving histories to doctors, and again, I can’t be certain about why I think that happened, but it is puzzling if it didn’t, because the symptoms themselves were much the same. I can only say that maybe they weren’t severe enough. I can’t really accept that he had completely forgotten the experience, if they were as described to me.

62. With reference to the film which was shown in evidence which the doctor had seen he commented that the applicant did not seem in the film to be overly anxious.

63. The report of Dr Lee was tendered as Exhibit 6. The doctor in that report threw considerable doubt on the reliability of the applicant and in particular seemed to base this on a negative urine test for the consumption of Serzone which at one stage had been prescribed by his general practitioner. There is a note in the general practitioner’s records that were tendered as Exhibit B that the applicant was off that drug some weeks before the urine test was carried out. I do not find the advocacy position adopted in Dr Lee’s report particularly helpful especially in view of the doubt as to the relevance of the negative urine test. Counsel for the respondent fairly indicated that he would not be relying on this report and under the circumstances it will be set to one side.


SUBMISSIONS WITH REGARD TO THE PSYCHOLOGICAL CLAIM

64. Counsel for the respondent made it clear that the fundamental issue was whether anything happened on 28 October 1998 and if it did was it anything of any materiality or was it simply a trivial event. Counsel reviewed the background lay evidence in some detail and conceded very properly that the applicant’s wife was an impressive witness with regard to the episode that took place at home on 28 October. Some of the other lay witnesses were the subject of considerable criticism especially Mr Betts and Mr Begley. It was also submitted that the applicant’s own testimony was somewhat selective in its recall and that the court should not be satisfied that there was any medical reason for this. The evidence in the video and the cross-examination relating to the attendance at football games was also relied upon. Any psychiatric condition had substantially resolved by about six months ago. However the applicant’s work history at the present time in the newsagency suggests him working as much as 50 to 60 hours per week. This would on the financial material submitted point to a very high ability to earn.

65. Counsel for the applicant carefully reviewed the evidence and stressed the support still remaining for the applicant as to causation from Drs Ellacott and Brown. As a fall back position reliance was placed upon the attack of 13 April. The failure to report the incident of 28 October was it was conceded puzzling.
CONCLUSIONS ON THE PSYCHOLOGICAL CLAIM

66. This has been the main and most difficult area of this case.

67. There is on the evidence no doubt that the applicant has been suffering from a psychological problem described as anxiety leading to panic attacks. The evidence that he has in fact suffered from this condition is overwhelming. It is also clear that from about September last year he has significantly improved. Such appears from his own evidence, the evidence of Mrs Oliver and also the second report of Dr Brown. However I do not think that the evidence indicates total recovery.

68. As to the issue of what occurred on 28 October 1998 the balance of the evidence indicates that some episode did in fact occur. As indicated earlier I accept the evidence of Mrs Oliver as to the conversation that took place on her husband’s return from work on that date. I accept on the probabilities that he found the use of the Fenzy equipment very uncomfortable. However on the issue of the significance or drama of that particular episode a number of factors need to be taken into account.

69. Firstly the clinical notes of Dr Ellacott indicate that on the consultation of 19 March 1999 she was given a history of anxiety attacks for eight to ten weeks. This equates to the beginning of 1999 which is about the time of the episode in the picture theatre and the like. Next the applicant’s constant inability to remember answers to questions is not adequately explained on the evidence. The view of Dr Shand that this would be explicable if there were overt signs whilst in the witness box of anxiety or depression is persuasive. No such signs were evident and as commented above the applicant’s presentation was fairly flat and unemotional. The failure to report the episode to the general practitioner until April is hard to explain. However it is significant that the evidence of both Dr Ellacott and Dr Brown referred to the need to look for a precipitating cause. Indeed the fact this discussion took place is conceded by the applicant in his own evidence. The fairly unsatisfactory evidence of Mr Betts and Mr Begley is very consistent with a picture of what was a minor episode on 28 October 1998 being retrospectively given more significance. The ability of the applicant to continue his normal duties in the intervening period is very consistent with this conclusion. It is open to a court to disbelieve evidence tainted by hindsight. (see Ellis v Wallsend District Hospital (1989) 17 NSW LR 553 at 581 per Samuels JA).

70. The applicant in my opinion has failed to discharge the onus of establishing that any incident that occurred on 28 October 1998 was the cause of his psychological condition. The argument that the episode of 13 April 1999 when the applicant had the attack in the tunnel can be utilised instead also has difficulties. The applicant’s whole case was based on a precipitating episode on 28 October. It is true that after that event on 13 April the applicant was certified as being unfit for employment and underwent treatment. One of my colleagues has talked with his customary eloquence in many judgments about the difference between genesis and revelation. Episodes of panic had occurred before that date outside the work environment. The evidence of the doctors referred to finding the initial precipitating cause and none of that evidence to my mind comes far enough to support the episode in April as falling within that description. It is more a case of revelation than genesis.

71. There is nothing in the evidence to implicate the nature and conditions of employment in any causative way.

72. Finally and most importantly it was very clearly conceded on the evidence that with this type of anxiety condition there is an underlying constitutional aspect and in many instances a precipitating cause simply cannot be found.

73. In general terms I prefer the assessment terms of the situation by Dr Shand.

74. Accordingly the applicant’s claim for the psychological problem fails.
OVERALL CONCLUSIONS

75. In view of the findings set out earlier with regard to the applicant’s back claim he is clearly entitled to an award.

76. With regard to earning matters the wages schedule, Exhibit N, reveals comparable earning figures at all relevant times at the rate of $1,150. Two figures were put forward with regard to the ability to earn. One was the figure of $443.80 representing the award rate for a shop assistant, 21 years and over. The second was $482.90 representing the rate for a shop assistant in charge of a shop with the duty of buying.

77. The evidence with regard to the financial aspect of the current newsagency business is owing to the nature of the business and its relevant newness not of a great deal of assistance. At this point there is no clear picture emerging from the figures as to what is the real earning rate from the applicant’s point of view. It follows that in this instance at this point in time there is little option to look at the evaluation of the worth of the applicant’s duties to the business. As to this a strong argument was put forward on behalf of the respondent that in recent times the applicant is working up to 60 hours per week in the business and by applying the normal casual rates for a shop assistant this would result in a potential earning figure virtually up to the comparable earning rate.

78. Doing the best one can with the evidence the view to which I have come is as follows. I think with regard to the initial period of the applicant’s activities in the shop before the improvement in his psychological condition his ability to earn ought to be taken at the lower of the award rates shown in Exhibit N, namely $443.80. Following the period of his improvement in September 2000 I propose taking the higher of the figures in the wage schedule but adjusted upwards to $600 to take into account the extra hours being worked. I think that the applicant’s fairly recent improvement from his psychological condition combined with the fact that the business has not been going for a very long period of time would indicate that it is premature to go above that figure at the present time. This however a position which may alter as time goes by.

79. It follows that the differentials from the point of view of the exercise which must be undertaken are from 14 April 1999 to 31 August 2000 $706.20 per week and thereafter $550.

80. I come now to the question of discretion which is very significant in this case. There is no doubt that until the improvement started in the psychological condition this was a factor markedly interfering with the applicant’s ability to earn and on his own case took him out of the mining industry. That warrants a significant exercise of discretion. From September 2000 when an improvement has occurred in the psychological condition the amount of the discretionary reduction must diminish but at the same time the differential between the probable earnings and the ability to earn has also reduced because it is from this date that the higher ability to earn figure is applicable. These discretionary adjustments are reflected in the award which I will now set out.
AWARD

81. 1. The applicant received injuries to his back in the course of his employment in

approximately 1982 and on 13 March 1997 and 14 April 1998.

2. The applicant has been partially incapacitated thereby since 14 April 1999.

3. I make an award in his favour under the former s 11(1) at the rate of $175

per week from 14 April 1999 to 31 August 2000 and at the rate of $165

per week from 1 September 2000 to date and continuing.

4. Under s 66 I find 20 per cent permanent impairment of the back less a

deductible proportion of 40 per cent $9,525.60.

5. Medical and other expenses s 60.

6. Respondent to pay the applicant’s costs.
Mr R Ingram instructed by Maguire & McInerney appeared for the applicant
Mr G Levick instructed by Sparke Helmore appeared for the respondent.