WDS v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 1/98 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN WDS DCA 169/93 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at CHRISTCHURCH on the 13th day of November 1997 APPEARANCES: Mr A Cadenhead for appellant Miss J A Goodall for respondent DECISION OF JUDGE M J BEATTIE Pursuant to s.96 of the Act there is an order prohibiting publication of the name of the appellant and of any particulars likely to lead to the identification of the appellant. 2 The issue in this appeal is whether the condition of post-traumatic stress disorder currently experienced by the appellant constitutes personal injury under the Act for which there can be consideration for cover under s.7(1) of the Act. Background Facts On the 14th of April 1993 the appellant, then aged 30, lodged a claim for cover and treatment expenses for "emotional damage injury due to work". The medical certificate accompanying this claim from his GP Dr Bartle described the appellant's injury as "emotional stress and tension" such being caused by "continuous emotional trauma whilst working in an unsatisfactory work environment i.e. Tenants Protection Association. The period over which the injury is said to have occurred was from April 1986 to December 1989. In a decision letter of 6th May 1993 the Corporation declined the appellant's claim for cover stating as the reason "what had developed does not constitute "personal injury" insofar as that term is defined." The appellant sought review of that decision and the hearing of that review took place on the 1st of October 1993. At the review hearing the Review Officer considered that the appellant was seeking to obtain cover under s.7 of the Act, namely, personal injury by gradual process arising out of and in the course of employment. However the review hearing, as indeed the Corporation's considerations prior to its decision, did not touch on the provisions of s.7(1)(a)(b)(c) but rather went directly to s.7(4) and it was a consideration of that section only which has ever been addressed by the Corporation and the Review Officer. It was the Review Officer's decision that the appellant's injury was not related to physical stress and therefore cover was excluded by s.7(4) of the Act. 3 At the time the matter was considered by the Review Officer there was only the medical certificate from Dr Bartle as mentioned above. The review hearing consisted of the appellant giving a narrative of his time of employment with the Christchurch Tenants Protection Association between April 1986 and December 1989. For the purposes of the appeal to this Court leave was granted to both the appellant and the respondent to adduce further medical evidence and such evidence consists of two psychiatric reports on the appellant from Dr Ding a consultant psychiatrist, such reports being prepared at the request of the appellant's counsel. Secondly two reports from Dr Bartle sought at the request of the Corporation. The relevant statutory provision this Court is called upon to consider is s.7(4) of the Act which provides: "Notwithstanding anything in subsection (1) of this section personal injury that is related to non-physical stress shall be deemed not to have been caused by gradual process, disease, or infection arising out of and in the course of employment." Before considering the medical opinion on the appellant's present condition I consider it necessary to review the evidence that he gave as to the circumstances of his employment with the Tenants Protection Association that gave rise to his post-traumatic stress disorder. The appellant is described as being of slight stature and build. After leaving school he did not work for the first two years and thereafter had a series of jobs for varying lengths of time until he took up the position of community worker / administrator for the Christchurch Branch of the Tenants Protection Association. He was the sole employee of this association and the first 4 it had hired in a full-time capacity. I now set out a summary of the evidence given by the appellant to the Review Officer as contained in her decision: "He said that he commenced work as a community worker/administrator in about April 1986 and he was excited about the job. He was a sole position in the organisation. He said that at the time there was an extensive homeless problem in Christchurch with which he became involved. He was particularly affected by cases involving children, parents with young families and elderly people. His work involved the homeless issue as well as tenancy disputes. WDS was required to deal with difficult landlords and property developers and he described the whole environment as a culture with which he was not familiar. He gave examples of landlords requiring sexual favours from their tenants and said it was stressful having to deal with all those kinds of situations. He said some people's behaviour was offensive and vicious. He said some developers tried to evade the regulations and he became caught up in the politics of situations. At times this brought him into conflict with Government Departments such as the Department of Social Welfare and Housing Corporation. He was also coming into conflict with developers and at times was subjected to personal threats and was followed home at night. He said that he had been assaulted by tenants and on one occasion a tooth was damaged and he required dental treatment. He said the dental treatment had given rise to a previous ACC claim. He said the people with whom he was dealing could be aggressive, even violent. He said that he had personal belongings stolen from his office. He said the volume of the work was overwhelming. He said the office from which he was working was tiny and at one stage he was sharing a space with a part time worker. He would be called out to disputes at night and in the early hours of the morning. He said he was working seven days a week, 60 hours a week. He said he found the job very difficult and stressful. He said he had no training for the work and received no support from the managing committee." At page 3 of the review decision the Review Officer notes: 5 "He thinks that he did mention to his general practitioner about the assaults but that this would have been linked to his consultations for the mental stress." At page 5 of her decision the Review Officer concludes: "It is clear from WDS's evidence that his working environment at the Tenants Protection Association was wholly unsatisfactory. He told me had had no training for the difficult and stressful job, no support from his employer committee, personal difficulties with the chairperson, inadequate accommodation and an overwhelming workload. In addition, he was subjected to threats, was followed home at night and had belongings stolen from his office. On occasions he was assaulted. I observed his distress at recalling various incidents which he said were just a few examples and not a complete account of the difficulties he faced." The appellant first consulted Dr Bartle about the stress which his employment was causing him on the 18th of March 1988. Dr Bartle advised that he presented as being extremely anxious and somewhat depressed and in need of some counselling. Dr Bartle put him on a sickness benefit for 8 weeks with the diagnosis of stress and anxiety and referred him to a clinical psychologist Mr Don Fergus. It seems as though the appellant never did consult Dr Fergus as he was directed. The second time Dr Bartle saw the appellant was on the 19th of December 1989 at the time he resigned from his position with the Tenants Protection Association. At that time he again went back on a sickness benefit. For the purposes of evidence for this appeal there are no further indications of him seeking medical help until he was seen by Dr Ding consultant psychiatrist on three occasions, namely, 14 December 1995, 8 January 1996 and 9 January 1996. It was following those consultations that Dr Ding prepared his principal report of 2nd February 1996. 6 The Medical Evidence At the time when the appellant sought cover under the Act in April 1993 Dr Bartle diagnosed "emotional stress and tension" and gave as its cause "continuous emotional trauma whilst working in an unsatisfactory work environment i.e. for Tenants Protection Association." When Dr Bartle saw the appellant in March 1988 he presented as being extremely anxious and somewhat depressed and in need of counselling. He was placed on a sickness benefit with the diagnosis of stress and anxiety and referred to Mr Fergus. In December 1989 the appellant presented himself after having resigned from his job because of stress factors and he felt that he needed to go back onto a sickness benefit. Dr Bartle was not able to be more specific about his reference to the term "stress factors" and had no specific details of the causes of the stress. He advised that he had no specific detail on the causes of the stress before December 1989. Dr Bartle did further state that he had no documented evidence of any assault on the appellant during the time of his employment. Dr Bartle said "I suspect that he felt that the physical effects were too minor to warrant medical intervention and that any minor bruising or injury would heal spontaneously and I am sure that he would not have envisaged needing documented evidence six years later for a recurrent problem." In a later report he indicated that subsequent to December 1989 when he had consultations with the appellant there were physical assaults but he has no information on any prior to December 1989. 7 Dr Ding in his thorough and detailed report of 2nd February 1996 covering 11 pages states at page 6 and following under the heading "Psychological Reactions - 1988 to 1989": "WDS found that his state of emotional tension was affecting his physical health by late 1988 which rapidly deteriorated in the course of 1989 to the point when he took sick leave for a month in October 1989. He resigned from his work in December 1989. He described the way he felt in the following way. He felt that when at work he was in a spin, was wound up and could barely slow himself down. Progressively he became more distressed and had great difficulty in waking up in the mornings. He would have to drag himself out of bed and push himself to get to work. If he did not do so he could stay in bed all day and sleep for most of the day. By late 1989 his concentration was impaired. He was forgetful and would have difficulty in remembering appointments and meetings. He would procrastinate and would avoid meeting people if possible. He felt that he was overloaded and that he was losing his grip and could not cope. He felt angry, irritable and was snappy towards people. He was particularly so, in his attitude and approach to statutory organisations, but much less so to the tenants. Although he stated that he did not feel depressed, he was weepy, he could not see his way out of his situation, and on two occasions towards the end of 1989, was so alarmed by his self-destructive thoughts that he presented to the Psychiatric Emergency Service of Christchurch Hospital." Then on page 9 under the heading "Conclusions" he states inter alia: "Major Depressive Illness 8 The clinical symptoms that WDS experienced, especially in the course of 1989, would have been consistent with a diagnosis of a Major Depressive Episode. The stress associated with his work situation would have been clearly the cause of his psychological state. Post-Traumatic Stress Disorder The pattern of symptoms that he currently experienced, especially the re- experiencing of past painful emotions, the trigger factors, his intense avoidant behaviour, anxiety and frightening dreams and his strong feeling of insecurity would be consistent with a diagnosis of post-traumatic stress disorder. The initial depressive reaction could be viewed as the acute phase of his pathological reaction, and after his departure from his work the settling down of his acute symptoms then highlighted the post-traumatic stress disorder features. His symptoms are such that he is totally disable from being able to work. His personal life is also severely restricted. Physical/Psychological Stress Factors In my opinion it is impossible to neatly separate those stress factors which would be classified under 'psychological' and those under 'physical' in terms of the impact on WDS. However, I would classify under 'physical' those stressful encounters associated with threats of and actual physical assaults by his clients and the physical assault by one of his chairmen. The psychological factors would be related to the ongoing stressfulness of his work, not feeling supported, the intense and acrimonious nature of the conflicts he experienced with various agencies and social ostracization. Against this background psychological stress, physical assaults would have a compounding and accentuateng effect. 9 If physical assaults have not taken place I am sure that his depressive episode and his current Post-Traumatic Stress Disorder would have occurred. It is likely, however, that they would have been less severe. If he had been subjected to the physical assaults and threats, but without the ongoing psychological stress factors, it is also likely that he would have developed a depressive episode and post-traumatic stress disorder. Similarly, the intensity of it would be significantly less severe. I am not sure how or whether it is possible to give some sort of qualitative apportioning of causative effects between psychological and the physical stress associated with the assaults. I have no doubt that the continuous and undermining nature of the psychological stress factors would have made him more vulnerable to the effects of the physical assaults." Submissions Counsel for the appellant submits that in this case there is a combination of physical and mental elements of stress which cannot be unwoven. He submits there is specialist psychiatric evidence to link the ongoing psychological difficulties with these elements and that both physical and psychological stressors were present during the course of employment. For this reason counsel submits that s.7(4) has no application to this appellant. In the alternative counsel submits that if it is found that there are no physical stressors or that the physical stressors in the form of assaults and abuse are of insufficient weight, then and in combination with those factors it is submitted that there has been a physical change at a chemical level. 10 He submits that the events experienced by the appellant have caused physical change at a chemical level which have led on to the disorders from which he now suffers. He contends that this is physical stress and as such s.7(4) does not apply. For this latter submission counsel refers to the report of Dr Ding on the question of chemical change, and in addition to the opinions of Doctors Cliff and Collier which are quoted at length in the decision of AB v ARCIC 1996 1 BACRC 336, this being a case where the issue largely involved consideration of s.7(4) of the Act. Counsel for the respondent similarly cites the decision of Judge Ongley in AB v ARCIC as supportive of her contention that the physical aspects of the symptoms which the appellant is suffering are not relevant. The issue in the appeal is the cause of those symptoms. She submits that if the cause is related to non-physical stress then compensation is excluded by s.7(4). Counsel submits that there is little or no evidence of physical stress which has been causative of the appellant's injuries. Insofar as the appellant's alternate submission is concerned, counsel for the respondent submits that the question of chemical changes brought about by the condition are not relevant to determining the issue. She submits that they are not a cause of the appellant's disorder, simply a consequence. It is the cause not the consequence that is relevant to the claim. Putting it another way counsel says the question to be considered is what caused the disorder not whether it manifests itself in a physical or non-physical way. The resolution of the issue in this case is very much bound up with determining what is non-physical stress as opposed to physical stress. It is to be noted that in the definition of personal injury in section 4 of the Act it includes any mental injury which is the outcome of a physical injury to a person. 11 Thus if a person suffers ongoing stress or trauma as a consequence of an assault that ongoing stress or trauma will entitle cover for the consequences of it even though the physical scars of the injury have long since healed. Section 7(4) is not talking of mental injury but rather personal injury caused by non-physical stress, but by the term "non-physical" I take that to mean mental stress. It is to be remembered that s.7 deals with personal injury caused by gradual process, disease or infection arising out of and in the course of employment. Physical stress is at the very heart of the gradual process injury such as say the constant banging or thumping in a work environment causing damage to the ear drum or the repetitive use of ligaments in the hand or wrist in the work task causing carpal tunnel syndrome, or the more general repetitive use of muscles or ligaments which cause stress to them and which result in what is generically known as repetitive strain injury or occupational overuse syndrome. Thus s.7(1) taken in conjunction with s.4 contemplates workplace tasks causing physical stress to body parts which result in physical injury as being covered under the Act. The antithesis of the foregoing is the workplace situation where the task does not involve some physical stress to a body part but where the work itself becomes too much for the person to cope with mentally and which causes mental stress. There has been no physical stressor which is the cause of the stress. It is simply a consequence and manifestation of an individual being over-borne by the circumstances of his/her employment and the pressures created by it. Such a condition is excluded from cover by virtue of s.7(4). His Honour Judge Ongley succinctly explained the dichotomy of s.4 and s.7(4) in the AB decision (supra) when he stated: 12 "It follows that the appellant has to establish physical injuries and that any mental injury can qualify only to the extent that it is the outcome of those physical injuries. Even if that is established, a gradual process claim has to meet a further requirement under .7(4), that it is not related to non-physical stress. It is s.7(4) that causes the most difficulty in this appeal." Then further on his Honour says: "The two sections when read together appear to be intended to exclude mental injury that is not an outcome of physical injury and also personal injury that is related to non-physical stress; that is to say physical or mental injury that is related to non-physical stress in the sense of a non-physical influence." His Honour concluded by stating: "I reached the conclusion that there are sound reasons for the interpretation of s.7(4) suggested by the respondent and that a physical injury related to non- physical pressure or influence is excluded from cover as a gradual process injury." The AB case concerned a claim for personal injury in the form of post-traumatic stress disorder arising from the appellant's employment in undercover police work. In addition to, or as part of the post-traumatic stress disorder, the appellant had suffered an addiction to cannabis as a consequence of being involved in undercover drug operations. The Court heard that the nature of his work as an undercover police officer involved in drug operations was particularly stressful with the ever present threat of exposure and the consequences that it may have. This was in addition to the clinical fact that he had become addicted to cannabis as a result of having experienced situations in which he felt he had no alternative but to use cannabis in order to preserve the protection of his assumed character. 13 In his decision the learned Judge reached the conclusion that s.7(4) applied to deny the appellant cover in that the physical injury which he undoubtedly did have was caused by non-physical pressure or influence. However in the circumstances of that case there was the additional factor of the cannabis addiction and that as the appellant's incapacity had been clinically established as being due to a combination of chronic post-traumatic stress disorder and cannabis addiction and that it was not possible to ascribe a quantum contribution of each condition, even though in the expert's opinion the greater contribution was attributable to the post-traumatic stress disorder, the appeal was allowed to the extent of the physical stress of smoking cannabis. In the case of the present appellant I find that the stress factors which have caused his post-traumatic stress disorder are non-physical in quality. There is some evidence that there was an assault by an office holder of the Tenants Protection Association and there was an occasion when he was assaulted by a tenant and suffered a chipped tooth. There is other evidence that he was at certain stages in a threatened situation where assault may have been in prospect. These incidents were not known or related to Dr Bartle at the times he saw the appellant in 1988 and 1989 which no doubt caused him to conclude some years later that "the appellant felt that the physical effects were too minor to warrant medical intervention and that any minor bruising or injury would heal spontaneously." Insofar as Dr Ding is concerned he gives his opinion that he would classify under 'physical" those stressful encounters associated with threats of an actual physical assault. He went on to state that the psychological factors would be related to the ongoing stressfulness of his work, not feeling supported, the intense and acrimonious nature of the conflicts he experienced with various agencies and social ostracization. 14 Dr Ding advised that even if the physical assaults had not taken place, he felt sure that his depressive episode and current post-traumatic stress disorder would have occurred. Dr Ding also advised that even if he had been subjected to physical assaults and threats without the ongoing psychological stress factors, it is also likely he would have developed a depressive episode and post-traumatic stress disorder. In his later report of the 16th of May 1997 Dr Ding himself puts the concept of physical assaults in perspective when he stated "In terms of the concept of physical assaults there was the occasion when he alleged that his chairman grabbed him by his neck. There were also occasions when he was directly threatened by landlords or clients in a face-to-face confrontational manner. At other times he has been threatened with words. It is my opinion that the nature of the appellant's personality and the state of his mind, especially during the latter part of his work career, he would have been abnormally vulnerable to not only a direct contact physical assault but also to confrontational threats." In the light of that opinion I find that it cannot be said that it was indeed physical stress or even partly physical stress which has caused his present condition. Any actual physical assault or confrontation was not itself physical stress of a nature contemplated by s.7(1). Each was an incidental and untoward event which of itself left no mental scars as they were of a minor and incidental nature. There is no suggestion that the Act could provide cover under s.8(2)(a) in any of these circumstances or that his post-traumatic stress disorder was the outcome of physical injury. There was no physical stressor which caused his post-traumatic stress disorder, rather it was the non physical stress of the nature of the employment and the manner in which his personality reacted to it. This, I rule, brings it within s.7(4) and his condition is thereby excluded from cover. 15 Turning to Mr Cadenhead's alternate argument, I find that this does not appeal as whilst it may be well documented that physical changes do occur as a consequence of post-traumatic stress disorder and that this has indeed occurred in the case of this appellant, the chemical changes are not the cause of the disorder rather they are a consequence. The chemical change has not caused the disorder rather it is the other way around and therefore the physical manifestation of the post-traumatic stress disorder does not enable the appellant to overcome the exclusion in s.7(4). Accordingly then I find that the appellant's personal injury is related to non- physical stress and that any physical stress such as the application of force on his person was incidental and not causative and accordingly the appellant has not suffered a personal injury for which he has cover under the Act. This appeal is therefore dismissed. DATED at WELLINGTON this 7" day of January 1998 MJ Beattie District Court Judge Smith.doc KD