THAZINE-AYE vy WORKCOVER AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and POWELL JJA 7 September 1995, 20 September 1995 [1995] NSWCA 467 WORKERS COMPENSATION ACT APPEAL — WHETHER EMOTIONAL CONSEQUENCES OF HER DISAPPOINTMENT AMOUNTED TO AN INJURY —NO FACTS The appellant brought proceedings against her employer and the WorkCover Authority on the basis that she had suffered an injury when her employer failed to appoint her to that position to which she aspired and that the emotional consequences of the disappointment resulted in incapacity. Held (per Clarke JA; Meagher and Powell JJA concurring) The trial judge was correct in failing to be satisfied that the appellant had received an injury arising out of or in the course of her employment. Although her frustration and upset was of an exceptionally high degree, it does not mean that she had sustained an injury arising out of the course of her employment. ORDERS Appeal dismissed with costs. Clarke JA Monica Thazine-Aye, the appellant, brought proceedings in the Compensation Court of New South Wales against her employer and the WorkCover Authority claiming weekly payments of compensation under the Workers Compensation Act 1987. In her application the following entry appeared opposite the column which read: "Date and place of injury, nature of work on which 1. From May, 1988 to date at Respondent's worker was then engaged, and cause of injury: premises Applicant subjected to undue stress associated with her employment. 2. On 27.6.88 applicant subjected to undue stress when notified not to do field work. 3. From June 1988 to date Applicant subjected to undue stress in being obliged to perform clerical duties." Further, the nature of the injury was described as "anxiety state and depression caused and/or aggravated by particulars in paraS hereof" (which I have set out). The employer denied liability and her case was heard by Moroney CCJ who, in a reserved decision, found an award for the respondent employer. The appellant appealed substantially upon the ground that the trial judge erred in not finding that she had suffered an injury arising out of her employment. The case was a complicated one and it is necessary to refer in a little detail to the facts. The appellant is a woman who was born in Burma and who came to Australia in 1981. She had qualifications in engineering but these were not recognised in New South Wales. She entered the employment of the New South Wales Public 2 UNREPORTED JUDGMENTS Service during the course of which she was transferred to the Department of Industrial Relations and Employment (D.I-R.T.). While there she applied for the position of Safety Officer and her application was successful. It was formally accepted by the Department on 20 October 1987 and she commenced employment in that job on 2 November 1987. She immediately undertook a training programme which continued until 13 May 1988. In the meantime notification of her appointment was published in the Government Gazette of 31 March 1988. For the next two months she carried out work as a safety officer unsupervised but on 23 June she was advised that she could not go out on any further field inspections. She was served with a written notice to this effect. She was then moved to the position of "Bi-Lingual Information Officer" which was not a demanding task as there is almost no Burmese community in Sydney. She then went to the Higher Risks Industries Branch despite her protestations that it had absolutely nothing to do with engineering. Her work in that branch was menial, virtually that of an office girl. At this time she began to suffer headaches, insomnia, early waking, morbid worry about future employment, shoulder and neck pain, tightening around the chest and general worry about her health. She then saw Dr Summers who wrote a letter to her employer as a result of which she was diverted to a special re-training programme on the Construction Safety Act. Following this programme she was given crane certification duties which she performed unsupervised. She had not been working long at this task before she was called into the Rosebery Office of the employer and told that she could not go out as a field officer. The appellant's health progressively deteriorated until she went off work on 26 July 1989, that is 8 days after she had been at the Rosebery Office, and remained off work until 17 December. During this period she was seeing Dr Summers, her general practitioner, and also a chiropractor. She returned to work on 18 December 1989 but lasted only until 16 January 1990. She has not resumed work. Her case was that the stresses associated with her employment with D.I.R.T. had led to a breakdown in her health and that she was, accordingly, entitled to compensation. Judge Moroney defined her case in this way: "The applicant seeks to prove a case of injury on the basis of the failure of the employer to appoint her to that position to which she aspired, amounted to such an injury and that the emotional consequences of her disappointment resulted in incapacity resulting from such alleged injury." His Honour said that he was not persuaded. He noted that the evidence was that "as a result of her failure to obtain the appointment and of her transfer to alternative duties the applicant experienced frustration and emotional upset." His Honour also accepted the evidence of Dr Rowe, which appeared in a medical report dated 21 September 1990 which ended with the following: "Tt is not the work itself that is stressful but the fact that she is not allowed to work in the field that she wants to and that she feels that she has been trained in, that is upsetting to her." In the light of this evidence his Honour was not satisfied that the appellant received an injury arising out of or in the course of her employment. The appellant's counsel has submitted that his Honour disregarded a number of important facts including: (a) Her disappointment was quite real and this was acknowledged by all doctors. URJHAZINE-AYE v WORKCOVER AUTHORITY OF NEW SOUTH WALES (Clarke JA) 3 (b) The disappointment was based on the expectations raised in the appellant's mind by the appointment to the position of Safety Inspector which was approved by the Executive Council and published in the Government Gazette. (c) She had in fact passed an examination for the position which at the time she believed was the final examination and she was then appointed to the position. (d) She embarked on the buddy system and for some months worked in a way that safety inspectors, when they first start, usually work. Mr Wilkins, her counsel, submitted that "the applicant's disappointment was entirely the result of the way in which the employer arranged its work selection process or the way in which it failed to arrange it". He also contended that his Honour ought to have drawn the conclusion that in those circumstances the applicant's emotional consequences were the direct result of her employment. The difficulty with the appellant's submissions is that his Honour, as it seems to me, rejected the notion that the appellant had suffered an injury. Although there were submissions put on appeal that it was possible to view her condition as the aggravation of a disease this case was not, in my opinion, the subject of attention at the trial and is not one which should be entertained by this Court for the simple reason that the course of the trial may have been different if it had been pursued there. The case was run, as his Honour's judgment suggests, solely on the issues of injury and causal nexus. His Honour's finding was that her employer's conduct, which his Honour characterised as political and bureaucratic bungling, caused the appellant to experience frustration and emotional upset. Further his acceptance of Dr Rowe's opinion meant that he thought that that frustration resulted from the fact that she was not allowed to work in the field in which she wished to work and for which she had been trained. Those findings do not support a conclusion that the appellant suffered from an injury. That follows, in my opinion, from the decision of this Court in Anderson Meat Packing Co Pty Ltd v Giocomantonio [1973] 47 WCR 3. In that case Jacobs P and Hope JA said at 7: "It is established that mental shock or trauma can be an injury within the meaning of s6 of the Act provided that the shock affects the nervous system so that it may be said that a physiological effect and not a mere emotional impulse is produced. Yates v South Kirkby Collieries Ltd [1910] 2 KB 538. Once there is a physiological effect and not a mere emotional impulse then the injury can be in the course of employment even though it is not occasioned by any external force or agency." That authority, and the quoted passage in particular, have recently been applied by the judges who sat in Austin v Director General of Education [1994] 10 NSWCCR at 374, 380 and 386. There is no finding in this case that her upset produced a physiological effect. On the contrary the finding is one of frustration and emotional upset simpliciter. That conclusion is sufficient to dispose of the appeal. I should add the further observation that the evidence of Dr Rowe, which his Honour accepted, supported his conclusion and there is no reason to conclude that his Honour was in error in accepting that evidence. The position becomes even clearer, in my opinion, if regard is had to the same doctor's later report of 8 May 1992. There he said: "My opinion is basically the same as it was when I saw her in 1990. I am obviously not competent to make any comment as to whether she is able to do the work of a safety officer in a satisfactory manner or not. Suffice it to say that I do not consider her to be suffering from any intellectual handicap, as I feel that she is of at least average intelligence. She does indeed have a very obsessional 4 UNREPORTED JUDGMENTS personality and it may be her personality that makes it difficult for her to get on with people. She does not like working as a clerk, and it is her attitude to doing a clerking job that makes her upset, not that there is anything inherent in a clerking position that should be upsetting in itself." Some support for this view is to be found in the evidence of Dr Giuffrida, a specialist psychiatrist, whose report was tendered by the appellant. He ended saying: "T believe the facts of the matter at this stage are that Ms Thazine-Aye does not suffer from an illness or disease in that sense. It is highly unlikely that an MRI scan will demonstrate any underlying pathology and I believe that a specific disease [has] been effectively ruled out and it is also reasonably clear that she no longer suffers from a significant anxiety or depressive illness. Her obsessional style of thinking and behaviour is not itself an indication of disease and is not a psychiatric diagnosis by itself. It certainly is a thinking and personality style and Ihave no doubt that it significantly impairs Ms Thazine-Aye's ability to function optimally." Ican accept that her frustration and upset was of an exceptionally high degree but that does not mean that she sustained an injury arising out of the course of her employment. I am unable to conclude that the trial judge erred and I would dismiss the appeal with costs. Meagher JA I agree with Clarke JA. Powell JA I agree with Clarke JA. Appeal dismissed with costs. COUNSEL: Appellant: RF WILKINS Respondent: CE O'? CONNOR AND JW FERNAN SOLICITORS: Appellant: JONES STAFF AND CO Respondent: PW TURK AND ASSOCIATES