Qantas Airways Ltd v Strong [2011] NSWWCCPD 40

Novel or complex question of law; application of s 69A of the 1987 Act; boilermakers deafness; threshold requirements and additional allowances for severe tinnitus

Keating P

3 August 2011

Facts:

Mr Strong was employed by Qantas as a baggage handler/ramp operator from 13 March 2002 to 16 July 2010.  He alleged he was exposed to the noise of heavy machinery used in loading and unloading aircraft, and jet engine noise resulting in noise-induced hearing loss.

On 20 September 2010, Mr Strong made a claim for $4,125 in respect of a three per cent whole person impairment relating to the alleged industrial deafness. His claim was supported by a report from Dr G Lucchese, an ear, nose and throat surgeon, who assessed a binaural hearing loss of 4.5 per cent. Dr Lucchese noted that Mr Strong suffered from severe tinnitus and added an additional two per cent, making the total compensable binaural hearing loss 6.5 per cent, which equated to three per cent whole person impairment.

Mr Strong was examined by Dr John Walker on behalf of Qantas on 16 November 2010 who assessed a binaural hearing loss of 1.3 per cent.

On 31 December 2010, Qantas issued a s 74 notice under the 1998 Act denying the claim. Qantas relied on, amongst other things, s 69A of the 1987 Act on the basis that Mr Strong’s total hearing loss due to industrial deafness was less than the six per cent threshold required by s 69A.

Mr Strong lodged an application in the Commission on 18 January 2011 in which he claimed $4,125 in respect of a three per cent whole person impairment due to “binaural hearing loss”.  Qantas denied liability in its Reply filed on 28 January 2011.

Mr Strong was assessed by an AMS, Dr Kenneth Howison, on 14 March 2011 who recorded a 4.5 per cent binaural hearing loss. He also recorded symptoms of severe tinnitus and agreed with Dr Lucchese’s assessment of a further two per cent additional loss, resulting in a 6.5 per cent binaural hearing loss, being a three per cent whole person impairment.  A MAC was issued on 14 March 2011 recording those findings.

At a teleconference held by Senior Arbitrator Snell on 19 April 2011 both parties joined in an Application to Refer a Question of Law pursuant to s 351 of the 1998 Act.  An Application was lodged in the Commission on 4 May 2011. Pursuant to Pt 16 r 16.1 of the 2011 Rules the WorkCover Authority was joined as a respondent to the application.

Question 1:  

Q. Is it permissible in the application of s 69A of the 1987 Act to have regard to any allowance for severe tinnitus?

A. Yes.

Question 2:

Q. Further or alternatively, does the correct application of s 69A of the 1987 Act require consideration only of a worker’s binaural hearing loss without any addition of an allowance for severe tinnitus?

A. No.

Question 3:

Q. Further or alternatively, whether severe tinnitus within the meaning of cl 9.11 of the WorkCover Guides for the Evaluation of Permanent Impairment, 3rd ed dated 6 February 2009 (the WorkCover Guides) constitutes hearing loss due to boilermakers deafness within the meaning of s 69A(1) of the 1987 Act.

A. Not necessary to answer.

Leave to refer a question of law

1. The application was allowed as the questions raised involved complex questions concerning the construction of s 69A of the 1987 Act and cl 9.11 of the WorkCover Guides, issued pursuant to s 376 of the 1998 Act, with respect to the assessment of the degree of permanent impairment arising from a work-related injury or condition occurring on or after 1 February 2009.  The only decision on this issue was by Arbitrator Leigh Virtue in James Galea v Blacktown City Council [2003] NSWWCC 31 (Galea) determined on 2 May 2003.  There are no decisions at Presidential level.  Having regard to the amount of compensation in dispute, it is likely matters such as this would be excluded from an appeal under s 352 of the 1998 Act as they are below the appeal threshold.  [28]-[29]

2. The employer submitted that complexity also arose from the fact that the threshold requirements in s 69A were introduced into the 1987 Act in 1995, whereas the WorkCover Guides introduced in 2002, for the first time, a component of compensation for severe tinnitus.  The construction and interaction of these provisions had not been the subject of consideration by a Presidential member. [31]

3. The worker’s submission that there was no jurisdiction for the President to consider the matter as a question of law due to the fact that an AMS had provided a certificate certifying the extent of the worker’s impairment was rejected.  The certificate issued by the AMS is conclusively presumed to be correct as to the level of impairment but does not equate to a determination of the dispute by the Commission (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; 5 DDCR 321). [32]

Is it permissible in the application of s 69A of the 1987 Act to have regard to any allowance for severe tinnitus?

4. Section 69A of the 1987 Act was introduced by the WorkCover Legislation Amendment Act 1995 – Act No 89 of 1995.  Amendments were made to s 69A by the WorkCover Legislation Amendment Act 1996 – Act No 120 of 1996. Section 69A was replaced in its entirety by the Workers Compensation Legislation Amendment Act 2001 – Act 61 of 2001.  However, all versions of s 69A required a loss of hearing due to boilermakers deafness of six per cent or more before an entitlement under s 66 in respect of industrial deafness is established. [61]-[62]

5. Severe tinnitus was not a relevant factor or consideration when a worker’s s 66 entitlement for industrial deafness was determined when the s 69A threshold was introduced.  It only became relevant with the introduction of cl 9.11 of the WorkCover Guides, which regulates the determination of impairment entitlements in respect of injuries after 1 January 2002. [64]-[65]

6. Section 33 of the Interpretation Act 1987 is relevant in determining the construction of s 69A of the 1987 Act and cl 9.11 of the WorkCover Guides and that section requires a purposive approach to interpreting statutory provisions. [67]

7. Qantas and WorkCover submitted that the determination of the question required a literal interpretation of s 69A as the section did not expressly or impliedly authorise or permit regard to be had to tinnitus or severe tinnitus in the assessment of permanent impairment resulting from the loss of hearing due to boilermakers deafness.  That submission ignored the fact that the assessment of an entitlement to compensation for boilermakers deafness is governed by the application not only of s 69A, but also by s 322 of the 1998 Act and by cl 9.11 of the WorkCover Guides.  Section 322(1) provides that assessments for the purposes of the Workers Compensation Acts be made in accordance with the WorkCover Guides (in force when the assessment is made) issued for that purpose.  The WorkCover Guides are specific and unambiguous, in that an allowance of up to five per cent may be added to the work-related binaural hearing impairment before the determination of the whole person impairment. [69]

8. WorkCover has power to issue guidelines with respect to the assessment of the degree of permanent impairment pursuant to s 376 of the 1998 Act. WorkCover first issued Guidelines for the Evaluation of Permanent Impairment in 2001. These have been reviewed and updated and all versions made an allowance for severe tinnitus. [70]-[71]

9. Qantas also submitted that it was significant that s 69A(4), which provides several examples to illustrate the operation of s 69A(1), did not provide an example of an allowance for severe tinnitus in determining whether the threshold had been met.  However, the three examples in that section are not an exhaustive list and are principally directed to the application of s 69A in a case of multiple hearing losses or for losses falling under the threshold. [74]

10. Qantas relied on the Minister’s Second Reading Speech at [49] to argue that to allow a worker to utilise an allowance for tinnitus to satisfy the threshold would constitute a weakening or reduction of the s 69A(1) threshold. However, the Minister’s remarks concerned the administrative costs associated with small claims, and did not provide any support for Qantas’s submissions concerning the utilisation of an allowance for severe tinnitus in connection with the satisfaction of the threshold requirements. [76]-[77]

11. Statements as to legislative intention made in explanatory memoranda or by Ministers cannot overcome the need to carefully consider the words of the statute to ascertain its meaning (Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [31], the plurality approved the observations of Gummow J in Wik Peoples v State of Queensland (1996) 187 CLR 1; HCA 40).  Even if Qantas’s submission regarding the import of the Minister’s remarks was accepted, it could not overcome the language of cl 9.11. [78]-[79]

12. Section 69A creates an entitlement to compensation for boilermakers deafness although no compensation is payable unless the worker’s total hearing loss is at least six per cent. The provision does not prescribe how the assessment is to be undertaken. The application of s 322 of the 1998 Act provides the task is to be undertaken in accordance with the terms of the WorkCover Guides, which prescribe how the assessment is to be made. [80]

13. The WorkCover Guides are expressed in clear and unambiguous terms. An allowance of up to five per cent may be added to the work-related binaural hearing impairment for severe tinnitus caused by a work-related injury, after presbycusis correction if applicable, and before determining the whole person impairment. [82]

14. WorkCover submitted that tinnitus is a secondary symptom of binaural hearing impairment and does not stand alone as a compensable impairment in the absence of binaural hearing loss and therefore it should not be permissible to add any allowances for tinnitus to the noise-induced binaural hearing loss in order to aggregate the total losses to exceed the six per cent threshold.  It was held that whether the condition is characterised as a secondary symptom or not is irrelevant because tinnitus is recognised as a compensable condition under the WorkCover Guides and any additional allowance for tinnitus must be added to the assessed hearing impairment before an assessment of the whole person impairment is reached. [84]

15. Since the decision in Galea, the WorkCover Guides have been reissued on two occasions. Had the legislature intended that any allowance for severe tinnitus was to be excluded for the purposes of satisfying the threshold in s 69A(1), it could have done so, but it has not.  [87]

16. Workers compensation legislation is beneficial legislation. Entitlements under beneficial legislation should not depend on “distinctions which are too nice” (Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765, per Mahoney JA). However, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164, citing IW v City of Perth [1997] HCA 30; 191 CLR 1 (at 11-12) per Brennan CJ and McHugh J). If there was any ambiguity in the language used, then in the context of beneficial legislation, the ambiguity should favour the worker and the Acts should be construed beneficially (Bull v The Attorney General for New South Wales [1913] 17 CLR 370 at 384). [88]-[90]

DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd) v Kelly [2011] NSWWCCPD 43

Aggravation of disease; s 4(b)(ii) of the 1987 Act; weight of evidence; alleged apprehended bias by Arbitrator during conciliation; application of principles in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421; unmeritorious and baseless appeal

Roche DP

11 August 2011

Facts:

Mr Kelly drives a rubber tyre gantry crane (an RTG) for DP World Sydney Ltd, the appellant. This requires him to look down with his chin on his chest. As a result of driving an RTG, he alleged that he received an injury in the nature of an aggravation of degenerative changes in his neck.

DP World’s insurer denied Mr Kelly’s claim for weekly compensation (from 19 April 2009 to 24 April 2009), lump sum compensation, and disputed injury, whether employment had been a substantial contributing factor to the injury, entitlement to lump sum compensation, whether the effect of the injury had ceased, and incapacity.

At the end of the conciliation phase, counsel for DP World unsuccessfully applied to have the Arbitrator disqualify herself on the grounds of apprehended bias.

In an extempore decision, the Arbitrator found that Mr Kelly had suffered an injury in the nature of an aggravation of a disease under s 4(b)(ii) of the 1987 Act.  She made an award in his favour for the weekly compensation claimed and referred the claim for lump sum compensation to an AMS for assessment.  

DP World appealed. The issues in dispute were whether the Arbitrator erred in:

(a) finding that Mr Kelly suffered an aggravation injury to his cervical spine (s 4(b)(ii)) and that his employment was a substantial contributing factor to the alleged injury;

(b) finding that Mr Kelly had discharged the necessary onus of proof on the issues of “injury”, “substantial contributing factor” and “incapacity” and the findings on these issues were contrary to the weight of the evidence;

(c) failing to find that any aggravation of an underlying disease process had ceased, and

(d) failing to disqualify herself on the grounds of apprehended bias.

Held: Arbitrator’s decision confirmed

Injury and substantial contributing factor

1. DP World submitted that Dr Bodel’s evidence, relied on by Mr Kelly, could not be accepted for a number of reasons including that it contained an inaccurate or incomplete history and was “inadmissible” because he based his opinion on a CT scan that was not in evidence. The question of acceptability of expert evidence in the Commission is not one of admissibility but of weight (Beazley JA (Giles and Tobias JJA agreeing) in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 at [83]). Dr Bodel mistakenly referred to a plain x-ray as a CT scan. That error was of no consequence. Dr Bodel based his opinion on his clinical findings on examination, the history he took from Mr Kelly and the x-ray report that showed osteophytes at C4/5, C5/6 and C6/7. He therefore properly identified the facts and reasoning process which he asserted justified his opinion and that was sufficient to enable the Arbitrator to evaluate the opinions expressed (Spigelman CJ in ASIC v Rich [2005] NSWCA 152;  218 ALR 764 at [105]). The history taken by Dr Bodel provided a “fair climate” for Dr Bodel’s opinion to be accepted (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510) and his opinion that employment was a substantial contributing factor was open to him.  Employment does not have to be the contributing factor to an injury.  That is a question of fact and not solely dependent on medical evidence. [44]-[51]

2. DP World submitted that Mr Kelly had to establish the presence of degenerative changes in his cervical spine as well as some “disturbance in function or structure” of the affected body part.  The Arbitrator correctly stated that there is an aggravation of a disease if it is made more serious in its effects, and “pain can be – often is the effect of injury”.  This was consistent with authorities: Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; 16 NSWCCR 253 (Perry) at [57]; Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 at [61]; Toll Pty Ltd v Bartimote[2007] NSWWCCPD 153 at [100].

3. A disease is aggravated if the condition is made “more grave, more grievous or more serious in its effects upon the patient” (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34;110 CLR 626 at 639; Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88) [59].

4. DP World’s argument that the evidence did not establish that the worker’s employment had been a substantial contributing factor to the injury was rejected. In the case of an aggravation injury under s 4(b)(ii), it is only necessary to establish that the employment was a substantial contributing factor to the aggravation, not to the underlying condition (Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 at [64]). The evidence comfortably established that the employment was a substantial contributing factor to the injury. [61]-[62]

Incapacity and aggravation

5. It was submitted by DP World that the effects of the injury were temporary and had ceased as Mr Kelly had returned to his pre-injury duties the day after reporting his symptoms.  Mr Kelly’s continued performance of his pre-injury duties did not establish that the aggravating effect of his injury had ceased. His evidence, accepted by the Arbitrator, was that his neck symptoms continued, though he was able to return to work. [70]-[73]

Onus of proof/weight of evidence

6. DP World unsuccessfully submitted that a Jones v Dunkel [1959] HCA 8; 101 CLR 298 type inference should have been drawn in relation to the absence of a report from Dr Lewis, Mr Kelly’s general practitioner.  Dr Lewis’s clinical notes and a WorkCover certificate issued by him were in evidence. Those notes established that he was aware that Mr Kelly’s duties involved “constant neck bending” and that he supported a connection between those duties and the development of Mr Kelly’s symptoms. The Arbitrator’s refusal to draw a Jones v Dunkel inference disclosed no error [75].

7. Even if a Jones v Dunkel inference were drawn, that inference was only that Dr Lewis’s evidence would not have assisted Mr Kelly’s case, not that it would have been adverse to him (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 276 ALR 375 at [63] and [64]). If Mr Kelly’s case was otherwise accepted (and it was) such an inference would not adversely affect the outcome (Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29 at [100]) [77].

Apprehended bias

8. At the arbitration, counsel for DP World advised the Arbitrator that his client did not wish to conciliate the matter and wanted to have the matter proceed to arbitration at 10 am and have the issues in dispute determined. It was submitted that the Arbitrator’s failure to honour this request and her discussion about the reliability (or otherwise) of DP World’s evidence, in the presence of the worker, gave rise to a situation of apprehended bias. The Deputy President rejected these submissions. [96]-[97]

9. The conciliation process must be viewed in its statutory context. An Arbitrator has a statutory obligation to attempt to bring the parties to a settlement before making an award or otherwise determining the dispute: s 355(1) of the 1998 Act. That obligation is a continuing one, but is primarily discharged at the conciliation stage of the proceedings. The Commission’s rules require that the parties have the opportunity to explore settlement (Pt 15 r 15.3 of the 2011 Rules. See also the Conciliation/Arbitration Guidelines). [101]

10. The test for apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” (Johnson v Johnson [2000] HCA 48; 201 CLR 488). [104]

11. The test is not whether the judicial officer will decide the case adversely to one party, but whether he or she will decide the case impartially and without prejudice (Mason J in Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352 (JRL)). Reasonable apprehension of bias on the ground of prejudgment must be “firmly established” (JRL). [105]

12. In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 McColl JA (Giles and Tobias JJA agreeing) observed:

(a) the conduct of the decision-maker must be considered in the context of the nature of the decision-making process in which he or she is engaged (Edmonds at [103] citing Minister for Immigration and Multicultural Affairs v Jia Legeng[2001] HCA 17; 205 CLR 507 (Jia Legeng) at [78]);

(b) a judicial officer has never been required to approach a case with a blank mind. An Arbitrator is required to consider the “substantial merits of the case” (s 354(3) of the 1998 Act and Edmonds at [104]);

(c) an Arbitrator’s first task at the initial teleconference is to use his or her best endeavours to bring the parties to a settlement acceptable to them before determining any dispute (s 355 of the 1998 Act and Edmonds at [104]);

(d) an Arbitrator has an “overall and continuing duty” (Aluminium Louvres & Ceiling Pty Ltd v Zheng [2006] NSWCA 34 at [25]) to use his or her best endeavours to bring the parties to a settlement by identifying issues and practical solutions to those issues (Edmonds at [104]);

(e) “the nature of the jurisdiction the Arbitrator was exercising made it obligatory that he form a view about the issues” (Edmonds at [105]);

(f) in assessing whether a decision-maker has been guilty of actual or apprehended bias, it is necessary to consider the extent to which that person is constrained from taking into account an opinion formed in the course of undertaking his or her task (Edmonds at [106] citing Hayne J in Jia Legeng at [187]);

(g) while a Commission Arbitrator is obliged to act impartially, he or she is entitled, in discharging the decision-making function, to take into account views he or she has formed in the course of discharging the primary role of achieving a settlement acceptable to both parties (s 355(1) of the 1998 Act) (Edmonds at [106]), and

(h) the requirements of natural justice are not infringed by a mere lack of nicety(R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553). The forming of a provisional view will facilitate an expeditious hearing, but does not demonstrate that the Arbitrator has so prejudged the matter as to be incapable of altering his or her views (Edmonds at [110]). [107]

13. No aspect of the Arbitrator’s conduct during the conciliation came close to apprehended bias and DP World’s submissions ignored the legislation and authorities. The Arbitrator’s statutory obligation to attempt to bring the parties together was not eliminated because one party did not wish to participate in the conciliation. The Arbitrator’s refusal to commence the arbitration at 10 am, as demanded by the employer’s counsel, did not demonstrate anything approaching apprehended bias. Nor did it deny the employer procedural fairness. [108]-[109]

14. The conciliation phase serves a broader function than the important purpose of exploring settlement options. It allows the parties to identify the issues still in dispute, the issues of fact on which findings will be required, legal issues, and the evidence to be admitted. As a result of the conciliation, the parties considered the evidence to be admitted in an application to admit late documents filed by DP World, clarified the allegation of injury (that it was to the neck, not the back), and reduced the period of the claim. None of those steps indicated that the Arbitrator would not bring an impartial mind to the determination of the dispute. Dealing with those issues during the conciliation involved no error [111].

15. The expression by an Arbitrator of a preliminary view during conciliation does not demonstrate that the Arbitrator has so prejudiced the matter as to be incapable of altering his or her view. In cases where all the papers have been before the Arbitrator prior to the start of the hearing, the forming of a preliminary view will facilitate an expeditious hearing [113].

El Gusto Ristorante Pty Ltd v Bijas[2011] NSWWCCPD 45

Appeal against findings based on credit of witness; dependency of spouse; s 37(4) of the 1987 Act; consequences of non-compliance with requirements of Pt 15 r 15.5 of former Workers Compensation Rules 2010 concerning content of Schedule of Earnings; obligation to provide sufficient reasons for decision

O’Grady DP

24 August 2011

Facts:

Mrs Bijas was employed with El Gusto Ristorante Pty Ltd (the restaurant), the appellant, as a kitchen hand/cook. She ceased work on 1 November 2008 due to alleged physical and psychiatric injuries received in the course of that employment.

She claimed compensation benefits in April 2009. Her claim form described her injury as “R arm, both shoulders and neck with depression and anxiety” and alleged abuse and harassment experienced in the course of her work. The psychological injury was said to have arisen as a result of incidents at work, in particular, incidents on 28 October 2008 and 1 November 2008 with co-worker, Ms Tuipe’a.

Liability with respect to the allegation of physical injury (as particularised in the claim form) was accepted and weekly payments of compensation together with medical and other treatment expenses were paid to Mrs Bijas since that acceptance.

Liability in respect of the alleged “anxiety disorder” was disputed.

Mrs Bijas sought orders with respect to weekly payments and medical expenses for injury described as “both hands/arms and anxiety disorder”. She claimed weekly payments from 3 November 2008 and alleged that her spouse was a dependent spouse under s 37(6) of the 1987 Act on the ground that he left employment for the purpose of caring for her.

While the matter was reserved, the Arbitrator issued a direction seeking submissions relating to s 37(4) of the 1987 Act on whether Mr Bijas was totally or mainly dependent for support on Mrs Bijas at the time compensation was claimed. Submissions were filed.

At a telephone conference the Arbitrator made a further direction for the filing of further submissions by each party addressing “the section 37(4) issue”. Submissions were again filed by the parties and the restaurant tried, unsuccessfully, to tender Mrs Bijas’s group certificates for years ending 2003 to 2008.

The Arbitrator found in favour of Mrs Bijas in relation to medical expenses in respect of her claimed psychiatric injury, found that Mr Bijas, “since 1 July 2009 was and is mainly dependent on her for support” under s 37(4) of the 1987 Act and ordered weekly compensation under ss 36, 37 and 40 of the 1987 Act. She rejected the application that Mr Bijas was dependent under s 37(6).

The restaurant appealed. The issues in dispute on appeal were whether the Arbitrator erred in:

(a) finding that Mrs Bijas’s psychological condition arose out of or in the course of employment and that employment was a substantial contributing factor to that injury;

(b) finding that Mrs Bijas’s husband was “dependent” and by awarding weekly compensation in respect of that dependency;

(c) failing to “exercise procedural fairness in considering the application of s 37(4)” of the 1987 Act and rejecting the restaurant’s tender of Mrs Bijas’s group certificates;

(d) the determination of Mrs Bijas’s probable earnings but for injury, and

(e) failing to correctly apply the provisions of s 40 of the 1987 Act.

Held: The Arbitrator’s finding concerning the occurrence of psychiatric injury was confirmed. The Arbitrator’s findings and orders concerning dependency of Mr Bijas and quantum of the award of weekly compensation were revoked and remitted to the Arbitrator for redetermination.

Occurrence of injury

1. The restaurant made the following complaints:

(a) the determination was made against “the weight of the evidence”;

(b) the Arbitrator erred “in concluding that the apology made by Ms Tuipe’a and referred to in her statement supports the worker’s version of events”, and

(c) the Arbitrator’s acceptance of Mrs Bijas’s evidence was against the evidence.

2. The Arbitrator’s preference for the evidence of Mrs Bijas was a conclusion reached, in part, upon an assessment of the credit of the witnesses.

3. A finding as to credit made by the trial judge may be overturned “only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the effect of the overall evidence was such that it was not reasonably open to the trial judge to accept [the plaintiff] as a witness of truth”: Devries v Australian National Railways Commission [1993] HCA 78; 112 ALR 641; 67 ALJR 526; 177 CLR 472 (Devries) (per Deane J and Dawson J at 483). See also the joint judgment of Brennan, Gaudron and McHugh JJ (at 479) in Devries. [55]

4. The Arbitrator said she preferred Mrs Bijas’s evidence because Mrs Bijas provided consistent histories to doctors, Ms Tuipe’a apologised for her behaviour, Mr Elali’s (director and head chef of the restaurant) evidence was based on information provided to him, there was an inconsistency between the evidence of Ms Tuipe’a and Mr Elali’s evidence and she accepted evidence that Mrs Bijas had experienced a panic attack on her last day of employment which would have been “unlikely” if the events had occurred as described by Ms Tuipe’a [57]. The inference drawn by the Arbitrator from the evidence concerning the apology “that some workplace conflict had occurred between [Mrs Bijas] and Ms Tuipe’a, sufficient to warrant the apology” was open to her and was not “glaringly improbable”: Devries [57]-[58].

5. As the Arbitrator accepted Mrs Bijas’s evidence, it was also open to her to draw the inference that Mrs Bijas would not have “suffered a panic attack of the severity” experience on 1 November 2008 if events of that day were as described by Ms Tuipe’a. The Arbitrator’s conclusion was in accordance with Dr Jones’s opinion (psychiatrist, relied on by the hospital) that if Mrs Bijas’s version was correct then work would be a substantial contributing factor. [59]-[61]

Dependency (s 37(6) and s 37(4)) and tender of group certificates

6. Having rejected Mrs Bijas’s application under s 37(6), the restaurant complained that the Arbitrator should not, as a matter of procedural fairness, have “assessed” entitlement under s 37(4) after the hearing had been concluded. The issue was whether the restaurant had been given an opportunity to present its case, given the Arbitrator’s intervention. [68]

7. It was appropriate, and in accordance with s 354 of the 1998 Act, for the Arbitrator to bring the possible relevance of s 37(4) to Mrs Bijas’s claim to the attention of the parties. The making of the Direction was consistent with a view expressed by Deane J (with whom Fisher J agreed) in Sullivan v Department of Transport (1978) 20 ALR 323 at 342–343 in relation to a provision substantially similar to s 354 (s 39 of the Administrative Appeals Tribunal Act 1975 (Cth)):

[c]ircumstances may … arise in which … a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case. [69]-[70]

8. Having properly brought the issue of s 37(4) to the parties’ attention, a close examination of the evidence concerning the earnings of both Mr and Mrs Bijas was required. The restaurant’s attempt to tender Mrs Bijas’s group certificates was refused and instead the earnings set out in the undisputed wages schedule was “deemed to be admitted”. [71]

9. The restaurant was not given the opportunity to present its case on the dependency issue and was therefore deprived of the possibility of a successful result [71].

10. The restaurant’s submission that “the Arbitrator’s findings and orders for the payment of weekly compensation have been made without adequate reasons or findings or analysis of residual earning capacity” was accepted [78].

11. The wages schedule relied on was fundamentally flawed [79] and did not provide an evidentiary basis for the Arbitrator’s finding concerning relevant earnings or her quantification of entitlement to weekly compensation. [80]

Section 40

12. The restaurant’s challenge to the Arbitrator’s reasoning and entry of an award under s 40 was accepted as she made no express finding as to the extent of incapacity and did not address the matters required by Mitchell v Central West Health Service (1997) 14 NSWCCR 526. Mrs Bijas unsuccessfully submitted that the Arbitrator’s reference to s 40 was a “slip” and should have referred to s 37. [81]-[84]

Chisholm v Thakral Finance Pty Ltd t/as Novotel Brighton Beach [2011] NSWWCCPD 39

Psychological injury; causation; whether injury due to reasonable action with respect to discipline, performance appraisal and or dismissal; meaning of “dismissal” in s 11A of the 1987 Act

DP Roche

2 August 2011

Facts:

Mr Chisholm commenced work for the Novotel in July 2006 as the assistant chief engineer, and became its chief engineer in February 2007.  His duties involved coordinating subcontractors engaged in plant maintenance at the hotel and the testing of all essential emergency equipment.

Mr Chisholm’s case was that his employment was satisfactory until a new executive assistant manager, Artur Pachecki, commenced work for the Novotel in August 2008. He alleged that he suffered a psychological injury in the form of anxiety and depression as a result of being bullied and harassed by Mr Pachecki between October 2008 and 15 February 2010.

Novotel conceded that Mr Chisholm had suffered a psychological injury in the course of or arising out of his employment, and that his employment was a substantial contributing factor to that injury.  Its defence was that no bullying or harassment occurred and the injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline and/or performance appraisal and/or dismissal.

The discipline or performance appraisal was alleged to have been the suspension of Mr Chisholm from work on 10 February 2010, pending an investigation after a power failure in the hotel on 27 January 2010 and the failure of the backup generator. Mr Chisholm argued his suspension was not discipline within the terms of the legislation and, if it was, it was not the whole or predominant cause of his injury and, if it was, it was not reasonable.

The alleged dismissal occurred following a meeting on 1 March 2010, which Novotel argued, had to be considered in light of an earlier statement by Mr Chisholm that he would not work under Mr Pachecki. At that meeting Novotel’s human resources manager, Ms Holdsworth, told the worker that the hotel had lost confidence in him and that the working relationship was permanently flawed.  She said the hotel could make a payment to end his employment.  Negotiations on ending Mr Chisholm’s employment failed and he remained employed until his employment was terminated by letter dated 28 July 2010.

The Arbitrator determined that the suspension was an act with respect to discipline and the meeting on 1 March 2010 was a constructive dismissal. She made an award for Novotel on the grounds that Mr Chisholm’s injury had been predominantly caused by his “suspension and dismissal”, and that the employer’s “actions both in the performance management and disciplinary action of suspension and the dismissal were reasonable”.

Mr Chisholm lodged an appeal on 24 March 2011 stating the Arbitrator had erred in:

(a) finding the suspension was a disciplinary measure;

(b) failing to find that Mr Pachecki had at any time bullied or harassed Mr Chisholm, and finding that the injury had been caused predominantly by his suspension and dismissal;

(c) finding that the employer’s actions in suspending Mr Chisholm were reasonable, and

(d) finding that the employer’s actions in dismissing Mr Chisholm were reasonable.

A further issue raised at hearing was whether the meeting on 1 March 2010 was an action with respect to dismissal or was a constructive dismissal.

Held:  Arbitrator’s decision revoked

Suspension

1. It is necessary to consider the process involved and the steps taken, or proposed to be taken, in determining whether the action being considered was discipline within the terms of s 11A.  It was held that the inquiry into the power failure was action taken to establish whether the failure resulted from a failure by Mr Chisholm in discharging his role as the hotel’s chief engineer.  The suspension was a step in a process to determine what action, if any, the hotel needed to take “with respect to” discipline.  [84]

Causation

2. There were three potential work-related causes of Mr Chisholm’s psychological injury:  the alleged bullying and harassment by Mr Pachecki, the action taken with respect to the suspension, and the action taken on 1 March 2010.  The Arbitrator’s approach to each had to be considered to determine if she erred in determining that the predominant cause of the injury was the “suspension and dismissal”. [99]

Bullying and harassment

3. The evidence did not support the conclusion that Mr Chisholm’s injury resulted from Mr Chisholm’s interacting with Mr Pachecki:

(a) Mr Chisholm’s general practitioner, Dr Yohendran, concluded that he suffered from anxiety and depression and that his mood disorder resulted from “work place bullying and harassment”.  However, the doctor had no history of the circumstances leading up to Mr Chisholm being suspended, or of the suspension. [102]

(b) Mr Chisholm had not complained to management about harassment or bullying by Mr Pachecki until he spoke to Ms Holdsworth on 15 February 2010, which was after he had been suspended. Neither of the two co-workers to whom Mr Chisholm expressed his concerns about Mr Pachecki gave evidence.  [106]

(c) Mr Judge, social worker at the Wellbeing Clinic, took a history that did not include the fact that Mr Pachecki had been working at another hotel from mid-December 2009 until 16 February 2010.  Further, Mr Judge stated that Mr Chisholm suffered “a considerable degree of harassment in the workplace” which was not supported by the evidence which suggested there were five incidents of concern over two years.  Mr Judge’s statement that the “manner in which this process was managed exacerbated an already established condition” was not supported by the evidence.  There was no evidence that Mr Chisholm had an “established condition” prior to February 2010. Further, Mr Chisholm had not complained about Mr Pachecki until 15 February 2010, so there was no “process” being managed regarding the alleged harassment.   Mr Judge’s report did not make any reference to the power failure or the investigation into that failure. [113]-[118]

(d) Ms Cartwright, clinical psychologist, stated that Mr Chisholm presented on 25 February 2010 with an “approximate one month history of anxiety and stress” in the context of a workplace disciplinary matter and perceiving ongoing bullying.  This was inconsistent with Mr Chisholm having suffered a psychological injury because of bullying and harassment by Mr Pachecki throughout 2008 and 2009. Critically, Ms Cartwright noted that “the process had really distressed him” because he did not know why they could not have just ask him about the documentation in the first place and the process “made him feel like he had done something wrong and made him sick with worry”. [120]-[122]

Suspension and dismissal

4. The expression “constructive dismissal” was inappropriate and the Arbitrator erred in using it to describe what happened on 1 March 2010.  The expression has been used in wrongful dismissal cases in the Industrial Relations Commission where it has been criticised (see Resign or be Fired – Resignation or Dismissal? By Greg McCarry (1995) 8 AJLL 1).  As Mr McCarry observed, the expression “constructive dismissal” should be reserved for a situation where it is alleged that the employer has in some way acted oppressively or in breach of contract or in a manner which justifies the innocent employee leaving employment.  That did not happen in this case. [128]

5. The term “dismissal” in s 11A should be given its ordinary meaning. A worker is dismissed when an employer terminates his or her employment without the worker’s consent (Smith v Director General of School Education [1993] NSWIRComm 134).  The section extends not only to the dismissal, but also to reasonable action taken, or proposed to be taken, with respect to the dismissal. In the context of s 11A, the relevant question was whether the whole or predominant cause of the psychological injury was reasonable action taken, or proposed to be taken, by or on behalf of the employer with respect to the termination of a worker’s employment without the worker’s consent. [129]

6. The decision to take steps to make a payment to end the employment relationship by consent was made before the meeting on 1 March 2010. It had started with the email from Mr Whittome dated 17 February 2010. [131]

7. Novotel’s purpose at the meeting on 1 March 2010 was to bring about an end to Mr Chisholm’s employment by negotiating an agreed termination payout. Ms Holdsworth’s actions were taken with respect to ending the contract of employment by agreement. They were not actions taken with respect to dismissing Mr Chisholm. [136]

8. Novotel’s s 11A defence failed because it did not establish that Mr Chisholm’s injury was wholly or predominantly caused by reasonable action with respect to discipline and/or dismissal.  It was caused partly by the suspension (discipline) and partly by the employer’s conduct in seeking to negotiate an agreed termination payout on 1 March 2010. [140]

Reasonableness

9. The Arbitrator erred in her approach to the reasonableness question by asking if the employer’s actions “in the performance management and disciplinary action of suspension and the dismissal” were reasonable. Performance management is not in s 11A and the Arbitrator erred in referring to it.  The question of reasonableness must match the findings on causation. The correct question was whether the employer’s actions with respect to discipline (the suspension) and dismissal were reasonable.  The extent to which the Arbitrator considered this question, she erred in her approach and conclusion.  [159]

10. The Arbitrator failed to have proper regard to all relevant evidence, namely, Mr Whittome’s email of 2 February 2010 and the hotel’s own procedures for dealing with performance issues. Failure to have regard to evidence relevant to an issue in dispute is an error (Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 per Hayne J at [130], applied by Beazley JA in Hancock v East Coast Timber Products Pty ltd [2011] NSWCA 11). [160]

11. Mr Whittome’s email of 2 February 2010 demonstrated that, before any investigation, and without saying if he had considered other issues, the owner’s representative had made up his mind that Mr Chisholm was “incompetent” and should be relieved, suspended or terminated.  That is what happened: after seeking Mr Chisholm’s explanation for the failure of the backup generator, which he gave, he was suspended without apparent consideration of that explanation, or further inquiry. Though the suspension was brief and lifted after the engineer’s report, it was fundamentally unfair to Mr Chisholm. [161]

12. While an assessment of current performance will be judged by reference to past events (Waqa v TAFE Commission [2008] NSWSC 808), Mr Chisholm’s past performance did not warrant suspension.  The results of the 2009 audit were dealt with at the time. There was no follow up, no counselling and no warning. [163]

13. Although the failure of the emergency generator raised important issues for the proper running of the hotel, the seriousness of the situation did not make it reasonable for Mr Chisholm to be suspended during the investigation.  There were no allegations of misconduct or impropriety by him, or any suggestion of potential interference with evidence or witnesses relevant to the investigation. The investigation was an “operational audit” which involved checking documents, not interviewing witnesses. [166]

14. The Arbitrator erred in failing to refer to the “Human Resources Performance Management Policy”.  The procedure to be followed in that policy involved a five-step process and each step had a detailed process to be followed. The hotel’s conduct with respect to Mr Chisholm’s suspension, when measured against its own policy, was not reasonable. [176]

15. The evidence did not support the Arbitrator’s conclusion that it was only when Mr Chisholm provided what was “tantamount to an ultimatum on 1 March 2010 that he would not work with Mr Pachecki that discussions took place about terminating the employment relationship”.  Mr Chisholm gave no such “ultimatum”.  Although he said he did not “want to be answerable to Artur”, that statement had to be read with evidence that Mr Chisholm had obtained a clearance from Dr Yohendran to return to work on 1 March 2010 and that he wanted to do so, knowing Mr Pachecki had returned to the hotel.  Rather than resolve those issues through mediation and counselling, Ms Holdsworth made it clear that, whether it was fair or not, a decision had been made to put a payment to Mr Chisholm to end the employment. [184]

Zhang v Ausco Martin Pty ltd t/as Westin Hotel [2011] NSWWCCPD 47

Assessment of evidence; sufficiency of reasons

Keating P

25 August 2011

Facts:

The appellant worker, Ms Zhang, was employed by the Westin Hotel as a housekeeper. Her duties included cleaning and servicing hotel suites.  She alleged that on 2 October 2005, she suffered injuries to her back, neck and left shoulder while lifting a heavy mattress in the course of her employment. In her report of injury form she reported the injury as “lower back pain”.  Ms Zhang further alleged that, on 9 May 2006, she aggravated her injuries when she fell on the steps at Granville railway station while on her way to work.

The Westin Hotel initially accepted liability in respect of the injury on 2 October 2005 and commenced weekly payments of compensation.

On 11 October 2007, Ms Zhang’s former solicitors wrote a letter of demand claiming $65,000 under s 66 of the 1987 Act in respect of a 35 per cent whole person impairment and an additional $40,000 for pain and suffering pursuant to s 67. The demand was in respect of injuries to the back, neck, both legs, the left shoulder, arm and hand, and depression.

Cambridge, the employer’s claims agent, denied liability for weekly compensation alleging that Ms Zhang was no longer incapacitated as a result of the incident on 2 October 2005.  It also denied liability for any continuing expenses associated with the treatment of Ms Zhang’s injuries.  They later denied liability in respect of the claims for lump sum compensation, alleging Ms Zhang had not sustained any permanent impairment due to the incident on 2 October 2005.

On 18 November 2010, Ms Zhang filed an application in the Commission claiming weekly payments from 2 September 2008 and lump sum compensation in accordance with her demand.  The Westin Hotel filed a Reply on 10 December 2010 disputing liability for weekly payments and lump sum compensation.

On 15 March 2011, the arbitration hearing was conducted by Senior Arbitrator Grotte.  The Senior Arbitrator found in favour of the Westin Hotel in respect of the allegations of injury to the neck/cervical spine, but in respect of Ms Zhang in respect of the other claims.

Ms Zhang lodged an appeal of the Senior Arbitrator’s finding concerning the allegations of injury to the cervical spine.

Held:  Senior Arbitrator’s decision confirmed

Did the Senior Arbitrator err in her treatment of the worker’s evidence?

1. Ms Zhang submitted that the Senior Arbitrator failed to take into account her evidence of the symptoms she experienced in her cervical spine. His Honour held that the Senior Arbitrator had not failed to take into account Ms Zhang’s evidence of complaints of her neck as it was clear she accepted that from 2007 Ms Zhang made complaints of neck pain. However, the issue before the Senior Arbitrator was whether any injury to the neck or cervical spine arose out of or in the course of Ms Zhang’s employment on 2 October 2005, and whether employment was a substantial contributing factor to the injury. [74]

2. The Senior Arbitrator also gave a number of compelling reasons in support of her conclusion that Ms Zhang did not injure her neck in the incident on 2 October 2005:

(a) Ms Zhang made no complaint initially to her treating general practitioner Dr Au-Yong of any symptoms in her neck. Her first complaint was on 28 October 2005 but the complaint was not investigated and no further complaints were made to Dr Au-Yong.

(b) Ms Zhang did not make any complaint to Dr Sher (orthopaedic surgeon) of symptoms referable to her neck and did not provide him with a history of any injury to her neck.

(c) Ms Zhang was referred to Dr Sun (rehabilitation medicine and pain medicine) who first saw her on 2 February 2006. Dr Sun saw her on nine occasions throughout 2006, and on at least three occasions in 2007.  However, it was not until April 2009 that Ms Zhang first complained of neck pain to Dr Sun.

(d) Dr Schiff (injury management consultant) took a detailed history from Ms Zhang in February 2006.  Ms Zhang made no mention of any injury to her neck or any associated neck symptoms.

3. Ms Zhang’s submission on appeal that the injury to her neck was masked by the severity of symptoms associated with her back and shoulder was not argued before the Senior Arbitrator.  In Harmer v Hare [2011] NSWCA 229 at [150] the Court of Appeal considered whether parties should raise issues on appeal that were not raised during the initial proceedings.  Whealy JA (Beazley JA and Sackville AJA agreeing) noted the general proposition is that a party is bound by the conduct of his or her case at trial (University of Wollongong v Metwally (No 2) (1985) 60 ALR 68 at 71). His Honour acknowledged, however, that a point may be raised for the first time on appeal.  This may occur where the point could not possibly have been met by evidence led at the trail below (Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 6-7) or where it is in the interests of justice and would not cause prejudice to the respondent (Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 498). [80]

4. The submission was allowed on appeal as had the point been raised at the arbitration it was unlikely it would have been met by any additional evidence and therefore no prejudice arose in permitting the argument on appeal.  Further, in the circumstances of the case and given the nature of the dispute, it was in the interests of justice that all of the worker’s submissions be considered and determined without further delay.  [81]

5. The submission in respect of the ‘masking’ allegation did not disclose any error by the Senior Arbitrator. The obligation for the Senior Arbitrator to consider the issue has to be considered in the light of the issues raised by the parties.  If a matter is not raised, it is not an error of law to refer to it (Brambles Industries Ltd v Bell [2010] NSWCA 162 at [22] and [30]). [82]

6. Further, there was no evidence of neck symptoms being masked by other injuries.  There was nothing in the worker’s evidence to that effect and it was inconsistent with the medical evidence.  It was not until July 2007 that the first mention of cervical spine pain was made to Dr Kaushik, who made a brief reference to it in the report of a bone scan performed on that date. [83]

Did the Senior Arbitrator have regard to the whole of the evidence of Ms Zhang’s treating general practitioner?

7. Ms Zhang submitted that the Senior Arbitrator adopted only part of the opinion of Dr Ven Tan which she submitted supported her claim of injury to her neck arising out of the course of her employment on 2 October 2005.  [86]

8. Dr Ven Tan’s report on 22 June 2009 concluded that Ms Zhang’s neck pain was probably a combination of degenerative changes due to age, referred pain from the shoulder injury, and psychosomatic from her depression and chronic pain syndrome.  The doctor’s medical certificates between May 2006 and February 2009 diagnosed “lumbrosacral disc lesion and adhesive capsulitis of the L shoulder”. The medical certificates issued between 18 April 2009 and 24 July 2009 added “cervical disc lesion”. The Senior Arbitrator did not accept the diagnosis of cervical disc lesion related to the incident at work on 2 October 2005 or that Ms Zhang suffered any neck injury at that time. [90]-[91]

9. The Senior Arbitrator noted that Dr Tan’s diagnosis of cervical disc lesions was at odds with his opinion, expressed with the benefit of the findings of the cervical CT and MRI, that the neck pain was probably due to a combination of degenerative changes due to age, referred pain from the shoulder injury, and psychosomatic from her depression and chronic pain syndrome.  The genesis of the “cervical disc lesion” was unexplained as there was no reference in any of Dr Tan’s reports of Ms Zhang having suffered from a cervical disc lesion, nor an explanation of how it was causally related to the incident of October 2005. [92][-[93]

10. The Senior Arbitrator’s rejection of Dr Ven Tan’s conclusion concerned the alleged injury to the neck and the causal relationship to the incident in October 2005 on the evidence did not disclose an error. [94]

Adequacy of reasons/assessment of medical evidence

11. The failure to provide adequate reasons constitutes an error of law. Arbitrators have a statutory and common law obligation to provide adequate reasons for their decisions (s 294(2) of the 1998 Act; Pt 15 r 15. 6 of the 2011 Rules; Absolon v NSW TAFE [1999] NSWCA 311 (Absolon). [97] To succeed in having the decision set aside on this ground, the appellant must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his or her statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21). [97]

12. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential member on appeal to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (Yates); Ainger v Coffs Harbour City Council [2005] NSWCA 424). [100]

13. The Senior Arbitrator carefully recorded and analysed the worker’s evidence and the medical evidence submitted.  Her findings with respect to the alleged neck injury were clearly set out in her Statement of Reasons. The Reasons were expressed in sufficient detail to comply with the Senior Arbitrator’s statutory obligation and comply with the requirements of Pt 15 r 15.6 of the Commission’s rules.  They clearly demonstrated the essential grounds upon which the decision rested and did not disclose any error. [122]

Ibrahim v Sydney South West Area Health Service[2011] NSWWCCPD 44

Workplace injury management dispute; order that worker attend a psychiatric examination; compensation; no compensation at issue on appeal; s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998

Roche DP

12 August 2011

Facts:

Mr Ibrahim is employed as a security guard with the Sydney South West Area Health Service at Royal Prince Alfred Hospital (the hospital), but has not worked since September 2009.

He claimed workers’ compensation because of an adjustment disorder with mixed anxiety/depression because of alleged bullying and harassment at work. His nominated treating doctor recommended a psychiatric assessment, which Mr Ibrahim did not attend.

Mr Ibrahim failed to attend medical appointments made as part of his return to work plans or appointments arranged by the insurer in respect of his workers’ compensation claim. He was told not to report for duty until he had attended an independent psychiatric/ psychological assessment arranged by the hospital. He did not attend that appointment.

He filed an Application to Resolve a Workplace Injury Management Dispute with the Commission seeking a recommendation that he be allowed to return to work without undergoing a psychiatric/psychological assessment.

Dr Keller, occupational physician appointed by the Commission, concluded that the hospital had a statutory duty of care to its staff and visitors to ensure that all employees are fit for work and a psychological evaluation was necessary prior to Mr Ibrahim’s return to work. A delegate of the Registrar made a ‘Recommendation’ under s 307 of the 1998 Act that the hospital obtain a psychiatric clearance for Mr Ibrahim before allowing him to return to work. An Arbitrator under s 308 of the 1998 Act made a similar order. Mr Ibrahim appealed the Arbitrator’s decision.

Held: Arbitrator’s decision confirmed

1. The appeal was fundamentally flawed because there was no compensation “at issue” and therefore there was no appeal under s 352 of the 1998 Act.

2. The term “compensation” is defined in s 4 of the 1998 Act to mean “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”. Mr Ibrahim had not applied for weekly or any other monetary compensation. The purpose of the Application before the Commission was to obtain an order to relieve Mr Ibrahim of the obligation to attend a psychiatric or psychological assessment before returning to work. It was not a claim for monetary compensation [54].

3. While Roche DP expressed reservations about the Commission’s power to make the order the worker sought, namely, an order recommending that the hospital allow him to return to work without having to attend a psychiatrist or psychologist, he did not have to determine that matter [52].

Ensign Services (Aust) Pty Ltd v Pine [2011] NSWWCCPD 42

Sufficiency of reasons for decision; s 17(1)(a)(ii) of the Workers Compensation Act 1987; employment to the nature of which the injury was due

O’Grady DP

11 August 2011

Facts:

Mr Pine was employed as a labourer/washer by Ensign Services (Aust) Pty Ltd (Ensign), the appellant, which conducted a commercial laundry.

Mr Pine claimed from Ensign lump sum compensation under s 66 of the 1987 Act in respect of alleged hearing loss. He alleged that Ensign was the last employer to employ him in employment to the nature of which the alleged hearing loss was due within the meaning of s 17 of the 1987 Act.

The Arbitrator found in Mr Pine’s favour in respect of injury and ordered that the matter be remitted to the Registrar for referral to an AMS.

Ensign appealed. The issues in dispute on appeal were whether the Arbitrator erred in:

(a) failing to consider and refer to relevant evidence;

(b) failing to give reasons as to why relevant evidence was not accepted, and

(c) making a finding in favour of Mr Pine against the evidence.

Ensign submitted that the Arbitrator:

(a) failed to refer to the suggested conflict between the history taken by Mr Pine’s expert, Dr Stylis, an ear, nose and throat surgeon, and the “outcome of the noise survey”;

(b) made no reference to the suggested conflict between Mr Pine’s evidence, related to noise levels, and the noise survey report;

(c) made no reference to the suggested conflict between Dr Seymour’s evidence (Ensign’s ear, nose and throat specialist) concerning the duration of exposure relevant to risk of injury, and

(d) failed to give sufficient reasons for her decision.

Held: Appeal dismissed. Paragraph one of Arbitrator’s decision revoked. Paragraphs two and three confirmed.

1. The Arbitrator failed to give sufficient reasons for her decision and therefore erred in her manner of fact-finding as she failed to examine all of the material relevant to particular issues: Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 (between [129] and [131]). That was an error of law and made it necessary to examine the evidence to determine whether the Arbitrator’s decision was or was not affected by that error: s 352(5) of the 1998 Act [51].

2. The authorities establish that the Commission is not concerned with the question as to whether the subject employment actually caused the hearing loss, but whether the last employment was one to which the nature of the disease is due [54].

3. The alleged “conflicts” in the evidence did not defeat Mr Pine’s claim against Ensign for the following reasons:

(a) the proper construction of the words “employment to the nature of which the injury was due” had to be considered: Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 at 64D;

(b) the noise level survey demonstrated that two machines, the Renzacci and Ducker machines, located in the washroom at the workplace emitted noise exceeding relevant standards. Those noise levels, in the opinion of Ensign’s own expert, Dr Seymour, gave rise to risk of relevant injury in the case of five hours or more exposure. Acceptance of that evidence led to the conclusion that the nature of the work was such that the “‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered” [62], and

(c) Mr Pine worked regular twelve hour shifts as well as, on occasions, ten hours overtime on Saturdays. Most of his work was conducted in the washroom area. The state of the evidence did not permit any finding concerning the duration of Mr Pine’s exposure to noise generated by the Renzacci and Ducker machines. The absence of that evidence was not fatal to Mr Pine’s claim against Ensign. The test is “the nature of the work and not the actual work done or the employment as it actually affected the man”: Commonwealth v Bourne (1960) 104 CLR 32; ALR 496 [63].

4. The Arbitrator’s determination that the employment was one to the nature of which the injury was due within the meaning of s 17(1)(a)(ii) was not affected by the error. [64]

5. The appeal was dismissed but the terms of the Arbitrator’s determination recorded in paragraph one were corrected to reflect an agreement made during the teleconference conducted by the Arbitrator that should there be a finding of liability against Ensign, then the “deemed date” of injury was to be the last day of Mr Pine’s employment. [65]

Rhodes v St Luke’s Hospital Complex [2011] NSWWCCPD 46

Causation; whether impairment of lower digestive tract resulted from ingestion of medication for concede physical injury

DP Roche

24 August 2011

Facts:

Tania Rhodes worked as an assistant in nursing with St Luke’s Hospital Complex. On 24 June 2003, she slipped on a wet floor in the hospital’s kitchen injuring her neck, left shoulder and back. Her symptoms later included migraine and right hip pain.

On 20 November 2007, the Commission issued a Certificate of Determination awarding Ms Rhodes lump sum compensation of $18,500 in respect of a 14 per cent whole person impairment due to the injury to her cervical spine and left shoulder, and $12,500 in respect of pain and suffering.

On 17 December 2010, Ms Rhodes lodged an application seeking an additional $8,750 lump sum compensation because of an alleged impairment of her lower digestive tract resulting from the consumption of medication for her injuries.

The hospital disputed the claim arguing that Ms Rhodes had not established the need for the pain-relieving medication arose from her injury and that Ms Rhodes took similar medication for the condition of endometriosis, and had similar lower digestive tract symptoms prior to her injury on 24 June 2003.

The matter was listed for Arbitration on 7 April 2011. The Arbitrator made an award for the hospital as Ms Rhodes had not established that her lower digestive tract condition had resulted from her ingestion of medication for her injuries.

Ms Rhodes lodged an appeal. The issues on appeal were whether the Arbitrator erred in:

(a) finding that Professor Bolin found that the drugs Endone, Tramal, Mersyndol Forte and MS Contin were only taken after the June 2003 injury (Professor Bolin’s evidence);

(b) misdirecting himself as to the test for causation in a claim for a further impairment (causation), and

(c) applying s 9A in saying that the worker’s endometriosis was the substantial contributing factor that caused Ms Rhodes to take pain-relieving mediation in any event (s 9A).

Held:  Arbitrator’s decision confirmed

Professor Bolin’s evidence

1. The Arbitrator correctly recorded that Professor Bolin’s opinion was based on a history that Ms Rhodes commenced analgesic medications as a result of her work injury.  After seeing Dr Gillies’s report, Professor Bolin did not deal in any meaningful way with the additional history recorded in that report but stated he needed to “reiterate” that his history was “quite different”. The Arbitrator correctly observed that Professor Bolin’s history was inaccurate on several key issues and that these inaccuracies reduced the weight to be attached to his opinion. The evidence that Ms Rhodes was treated with Tramal, Mersyndol Forte, MS Contin and, probably, Endone because of her pelvic pain was significant.  Professor Bolin failed to consider that evidence and the Arbitrator was right to state that his opinion was founded upon assumptions that were different from the facts proved in the evidence. [55]-[56]

Causation

2. The test for causation in a claim for compensation for a consequential loss or impairment is the same as it is in a claim for weekly compensation, namely, has the loss or impairment “resulted from” the relevant work (Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7; 16 NSWCCR 123; Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648). That test was correctly applied as the Arbitrator stated the issue for determination was whether the condition of the worker’s lower digestive tract “resulted from the injury of 24 June 2003”.  That test was consistently applied throughout his decision. [60]

3. While a condition can result from more than one cause, the worker rested her case on the false assumption that she had been well before the work injury and she took multiple medications because of the effects of that injury.  Professor Bolin’s opinion was based on an inaccurate and flawed history which resulted in the Arbitrator not accepting the Professor’s opinion. That conclusion was open to the Arbitrator. [61]

4. The submission that the bowel problem in 1998 was a one-off problem for which she no longer needed treatment was not correct. The worker’s evidence was that she had problems with constipation and diarrhoea for “a number of years on and off”. [62]

5. The Arbitrator did not ignore the worker’s back pain, or the medication taken for it, in assessing the claim.  He said that, at some time in late 2004 or early 2005, Ms Rhodes was prescribed medication, implicated in her bowel problems, for her work injuries. However, the worker’s lower digestive tract problems started before 2004 and the Arbitrator felt that it was likely that she would have continued to take significant doses of analgesics for her pelvic pain to date even if she had not suffered her injury at work. [63]

6. The submission that Ms Rhodes only started to receive “excessive prescriptions for pain medication after her accident in June 2003” missed the point. Ms Rhodes had long-term pelvic pain and by 2003 was using Tramal, Mersyndol Forte and occasionally MS Contin because of that pain, not because of the effects of the injury.  Ms Rhodes’s evidence that she was not seeking strong analgesics for her pelvic pain in August 2003 was not supported by the contemporaneous medical evidence.  [64]

Section 9A

7. The Arbitrator did not refer to s 9A or the concept of substantial contributing factor in his decision.  He considered whether, on the balance of probabilities, the worker’s condition had resulted from her injury.  Having considered the worker’s case, and having rejected the worker’s evidence where it conflicted with contemporaneous evidence, and having rejected Professor Bolin’s evidence because of the inaccurate history, he was not satisfied that the condition had resulted from the injury. [69]

Workers Compensation Nominal Insurer v England [2011] NSWWCCPD 41

Application to strike out pre-filing statement; s 151DA of the 1987 Act

Keating P

5 August 2011

Facts:

Mr England was employed as a carpenter by Rodney Coombes trading as RJ and MK Coombes (Coombes).  On 24 May 2006, Mr England was assaulted by a co-worker and suffered injuries to his face and left eye.  Coombes was uninsured for workers compensation purposes at the time of the assault.

Mr England pursued his claim for compensation entitlements against the Nominal Insurer. The Nominal Insurer accepted the claim, and payments were made.

Mr England brought a claim for lump sum compensation pursuant to s 66 and s 67 of the 1987 Act. That claim was resolved on 4 July 2008 on the basis that Mr England had suffered a 17 per cent whole person impairment.  Mr England and the Nominal Insurer entered into a complying agreement to that effect.

Mr England provided particulars pursuant to s 282 of the 1998 Act to the Nominal Insurer on 25 February 2009.  Mr England’s pre-filing statement was received by the Nominal Insurer on 19 June 2009. In it he alleged injuries to his head, face and left eye arising from the incident on 24 May 2006.  The Nominal Insurer served a pre-filing defence on 30 July 2009 on both the claimant and the solicitors representing Coombes.

Mr England lodged an application for mediation on 13 August 2009.  A mediation was held on 21 December 2009 but the matter could not be resolved and a certificate of mediation was issued by the Commission on 24 December 2009.

On 4 June 2010, the Nominal Insurer’s solicitor wrote to Mr England’s lawyers, noting that a statement of claim had not been received and noting its intention to strike out the pre-filing statement.  They again wrote to Mr England’s solicitors on 23 September 2010 and 3 December 2010 indicating an intention to apply to strike out the pre-filing statement.

Mr England took no significant steps to progress the matter since the failed mediation on 21 December 2009.  The Nominal Insurer’s solicitors lodged an Application to Strike Out a Pre-filing Statement on 12 May 2011.

A Direction was issued on 17 May 2011 regarding service of the Application and the Nominal Insurer’s solicitor lodged a Certificate of Service confirming service on 20 May 2011.

Following service and enquiries from the Commission, no Notice of Opposition or submissions were lodged by Mr England, and no submissions were received from Coombes.

Held: claimant’s pre-filing statement was struck out

17. Although the legislation is silent on the grounds upon which an application may be made to strike out a pre-filing statement, the legislative intention behind the introduction of s 151DA of the 1987 Act and s 318A(2) of the 1998 was to facilitate the resolution of a claim through the early exchange of information and evidence, and the participation of both parties in mediation (Sheahan P in Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 at [11] (Gardner)).  However, time within which the claimant may bring work injury damages claims should not be extended indefinitely (Gardner at [15]). [28]-[29]

18. Mr England was legally represented at all material times and made no attempt to provide any explanation for the delay in prosecuting his claim.  His continued failure to prosecute his claim after being alerted to the Nominal Insurer’s intention to have the application struck out and his failure to resist the application were powerful factors in granting the application to strike out the application (Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104; 54 NSWLR 207). [33]

19. The Nominal Insurer submitted that it had been informed by the solicitors for Mr England that the alleged assailant had been killed in a motor vehicle accident.  It was held that the Nominal Insurer would suffer presumptive and actual prejudice in defending the claim in relation to the primary facts concerning the claimant’s allegations of injury in 2006.  Further, Mr England made no attempt to persuade the Commission to the contrary. [36]-[38]