Issue 7: July 2012

Preston v Randwick City Council [2012] NSWCA 178

INTERLOCUTORY APPLICATION - Application for leave to appeal - Workers Compensation Commission dismissed appeal against consent orders made in proceedings before Commission constituted by an Arbitrator - Workplace Injury Management and Workers Compensation Act 1998, s 354(7A) - whether the Commission constituted by a Presidential member erred in law - whether applicant was denied procedural fairness - no denial of procedural fairness - leave to appeal dismissed

Allsop P

Sackville AJA

7 June 2012

Facts:

Mr Preston commenced proceedings against his employer, Randwick City Council, seeking orders as to his entitlement to workers compensation benefits following an alleged injury in the course of his employment on 6 May 2009.

On 17 August 2011, whilst the matter was before Arbitrator Robinson for conciliation and arbitration, the parties’ representatives reached agreement concerning the claim.  A document titled “Heads of Agreement” was prepared and signed by the parties’ representatives and Mr Preston.  The content of that document formed the basis of the consent orders subsequently made by the Arbitrator which issued on 22 August 2011.

Mr Preston was self-represented on appeal. On appeal he alleged that he had signed the “Heads of Agreement” under duress and that he did not understand the terms of the agreement he had agreed to at the time of signing.  He additionally made allegations of misconduct by both opposing counsel and Arbitrator Robinson.

On appeal, Mr Preston sought to have the consent orders set aside and the matter “heard afresh”. Orders were also sought in respect of entitlement to weekly payments, medical expenses and lump sums as well as orders concerning the destruction of documents and records.

O’Grady DP determined that the appeal was misconceived pursuant to s 354(7A) of the 1998 Act because Mr Preston’s challenge had not addressed any relevant error on the part of the Arbitrator.

In the alternative, Mr Preston sought a reconsideration of the Arbitrator’s orders. Mr Preston failed to identify any legislative power available to the Commission allowing the transfer or conversion of an appeal application into a request for reconsideration.  The power to remit (s 352(7)) does not extend to circumstances where a litigant, because of failure of the appeal process, seeks reconsideration of the Arbitrator’s decision. The appeal was dismissed.

Mr Preston sought leave to appeal to the Court of Appeal complaining that:

“although he signed the Heads of Agreement and was present when the orders were made by the Arbitrator, he did not understand the terms of the Heads of Agreement or the import of the consent orders, particularly in relation to his entitlement to be compensated for future medical and related expenses. The applicant says that the Arbitrator should have satisfied herself that he (the applicant) understood the terms of the Heads of Agreement and that he truly consented to the orders that were to be made [5].”

Held: Application for leave to appeal dismissed with costs.

1. An appeal to the Court of Appeal against a decision of the Commission constituted by a Presidential member is governed by s 353 of the 1998 Act. Such an appeal is only available where a party is “aggrieved by a decision of the Presidential member in point of law”: s 353(1) [25].

2. The Commission’s decision to dismiss the appeal from the Arbitrator’s decision was in effect a summary dismissal of the appeal under s 354(7A) of the 1998 Act and therefore an interlocutory decision: see Spears v Department of Ageing, Disability & Homecare of NSW [2010] NSWWCCPD 35, at [28]-[29], per Roche DP and authorities cited there; and cf Wickstead v Browne (1992) 30 NSWLR 1 at 11 [8]. It can also be considered interlocutory as Mr Preston retains a statutory entitlement, pursuant to s 350(3) of the 1998 Act, to request the Arbitrator to reconsider her decision to make the consent orders (Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423) [9].

3. O’Grady DP correctly distinguished between the Commission’s reconsideration power under s 350 and the right of a party to appeal an Arbitrator’s decision under s 352(5).

4. The Commission constituted by a Presidential member does not have a general discretion on appeal to reopen or reconsider the Arbitrator's decision [29].

5. The Commission correctly observed that if Mr Preston could show that the Arbitrator failed to discharge her duties under the 1998 Act or the Rules, she may have denied him procedural fairness and therefore erred in law. However, on the material before the Commission, the Arbitrator simply made orders by consent in accordance with an agreement in writing between the parties, signed not only by Mr Preston’s counsel but by Mr Preston himself [30].

6. O’Grady DP was correct in concluding that Mr Preston had done no more than make unsubstantiated allegations and that he had failed to make out an arguable case that the Arbitrator’s decision was affected by an error of fact, law or discretion [32].

7. Mr Preston had not been denied procedural fairness as O’Grady DP alerted him to the difficulties he faced with his appeal and gave him the opportunity to address those difficulties [33].

Millan v Technicolor Pty Ltd [2012] NSWWCCPD 35

Hearing loss; s 17 of the 1987 Act; expert evidence

Keating P

29 June 2012

Facts:

The appellant, Sergio Millan, was employed by Technicolor Pty Ltd as a machine operator. He claimed that, as a result of exposure to noise at the Technicolor’s premises, he suffered from industrial deafness.

Mr Millan stated that he was employed as a machine operator by Technicolor from October 1994 to 2008. He said in his 21 July 2011 statement that his duties included operating a noisy machine that packaged DVDs and CDs, and another machine that packaged CDs into cylinders. He said that it was impossible to speak while the machines were running and he had to raise his voice when he needed to be heard. He was not provided with earplugs or earmuffs.

In his statement dated 24 October 2011, Mr Millan added some further detail in relation to the nature of his duties. He said that his job involved packing 120 DVDs per minute into three boxes. The boxes were then taped by a machine. He carried the boxes and placed them onto a pallet. Once the pallet was full, the pallet jack would be transported elsewhere.

Mr Millan worked on “three stations of the Kyoto machine”. All of the processing machines were very noisy. He was exposed to that noise, plus the noise of the pallet jack, from 7am to 3pm, Monday to Friday, for 23 years.

In his statement dated 9 November 2011, Mr Millan stated that, initially, he worked in the respondent’s warehouse packaging videotapes and wrapping them with a plastic wrap machine. He then moved to the factory where his duties included working on the Kyoto stations, packing DVDs, shrink-wrapping DVDs and manually pushing the pallet jack.  These machines produced a significant amount of noise.

In a further statement dated 8 December 2011, Mr Millan said that, in addition to the wrapping machines, he was also trained to operate the Kyoto machines but, due to his poor eyesight, he did not operate them for any extended period. However, he did work amongst the Kyoto machines.

Mr Millan lodged an application in the Commission claiming $9,625 in respect of a seven per cent whole person impairment as a result of industrial deafness. The deemed date of injury being “November 2008”. The respondent filed a reply on 25 August 2011.

The issues before the Arbitrator were:

(a)  whether the worker was exposed during the course of his employment with the respondent to noise to the nature of which his injury was due, and

(b)  whether the worker had established that his employment with the respondent had the tendencies, characteristics and incidents capable of causing industrial deafness.

On 27 March 2012, the Arbitrator made an award in favour of the respondent.

The appellant submitted that the Arbitrator erred by:

(a) misapplying the standard of expert evidence to be adduced by a worker regarding acoustic engineers’ reports;

(b) misattributing the onus of proof regarding the respondent’s hypothesis on causation;

(c) failing to draw an adverse inference relating to the respondent’s failure to adduce medical evidence;

(d) failing to afford procedural fairness in relation to findings regarding WorkCover guidelines;

(e) failing to afford procedural fairness relating to findings regarding the use of dosimeters by the respondent’s expert, and

(f) making findings regarding dosimeters not reasonably open on the evidence.

Held: Arbitrator’s decision confirmed.

Fresh evidence

1. The appellant sought to rely on fresh evidence being a report from Dr Stylis of 14 April 2012 in response to a request from Mr Millan’s solicitors to express an opinion as to whether Mr Millan’s employment could have given rise to industrial deafness based on Mr Millan’s statements. Mr Millan’s statements were made prior to the arbitration hearing.  No attempt was made to explain why Dr Stylis was not asked to comment on that evidence before the arbitration. Dr Stylis was an independent medical examiner who first examined the worker in February 2011. There was no apparent reason why the appellant could not have approached the doctor prior to arbitration to seek further evidence [61].

2. The opinion expressed by Dr Stylis was based upon subjective evidence from the worker which the Arbitrator found to be unreliable. No challenge was made to the Arbitrator’s findings concerning Mr Millan’s evidence. His statements were internally inconsistent [62]. It was not apparent what history Dr Stylis was relying upon in order to form the conclusion he did. By then, he had obtained his own history from the worker and had access to three supplementary statements, all of which described his duties differently. These inconsistencies undermined the weight to be placed on Dr Stylis’s report [63]. There was no apparent reason why this material could not have been placed before the Arbitrator, and appeared to be an attempt to rectify a deficiency in the evidence as found by the Arbitrator. The report was not admitted on appeal [64].

3. Dr Stylis’s report of 24 April 2012 was an attempt to address the question of the extent, if any, to which Mr Millan’s activities as a musician contributed to his hearing impairment. No attempt was made to explain why this material was not prepared before the hearing. The respondent did not argue that Mr Millan’s impairment was due to playing in a band. Its case was that Mr Millan’s exposure to noise in the course of his employment was not excessive and therefore his employment with the respondent was not employment to the nature of which his injury was due. The admission of the report was rejected [66].

4. The further statement of Mr Millan dated 5 May 2012 was prepared after the Arbitrator’s decision. The statement provided background regarding Mr Millan’s employment in Chile before coming to Australia and some further information concerning his engagement as an acoustic guitarist in Australia.

5. The terms of s 352 of the 1998 Act prohibit the Commission from granting leave to admit fresh evidence or further evidence on appeal unless it is satisfied that the evidence concerned was not available to the party and could not reasonably have been obtained by the party before the proceedings. The appellant could not satisfy that provision as the issues had been identified in the respondent’s Reply. The admission of the further statement was rejected [69]. The material did not materially add to the evidence already before the Arbitrator and did not address the Arbitrator’s principal ground for deciding the case adverse to the worker; namely, the respondent’s evidence, which the Arbitrator accepted, that the occupational noise survey performed during a period of peak production generated noise levels that were less than current regulatory noise limits [72].

Misapplying the standard of expert evidence

6. The appellant’s submission that the only evidence going to the question of whether the appellant’s employment was noisy was the evidence of the worker and the report of Dr Stylis was clearly wrong. The evidence of Dr Benke was directly related to that issue [106].

7. The appellant’s submission that the Arbitrator erred in relying upon Ilievski v Sutherland Shire Council (unreported, 6 March 2001) because the particular employment of the worker was not established, as the Dr Benke report did not address the worker’s own unique employment situation, was rejected. The noise survey did address the worker’s own employment circumstances:

(a) Mr Millan worked at Technicolor’s manufacturing facility at Alexandria, which was the site surveyed by Dr Benke;

(b) Dr Benke’s report related to noise exposure in the role and duties undertaken by Mr Millan in his employment, which were tested in the noise survey dosimeter testing, and

(c) the testing was conducted in 2009, just months after the appellant ceased employment with the respondent [108].

8. The tests carried out by Dr Benke were comprehensive and included all of the processing areas where Mr Millan said he worked. Dr Benke’s evidence was clearly relevant to the principle issue in dispute, namely, whether Mr Millan’s employment with the respondent had the tendencies, characteristics and incidents capable of causing industrial deafness. There was no challenge to Dr Benke’s expertise and the Arbitrator was entitled to give it weight in determining whether it was to be preferred to the appellant’s evidence [111]. The fact that the noise survey was not created for the purposes of these proceedings did not detract from its relevance or probative value. The report directly concerned the workplace which Mr Millan alleged to have been noisy, and it was directly relevant to the question of whether Mr Millan’s employment with the respondent was employment to the nature of which the injury was due [112].

9. The appellant’s submission that Dr Benke’s report did not satisfy the requirements of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 was rejected. Dr Benke went to considerable lengths to set out the methodology and the facts observed by him. There was no challenge to the facts referred to by Dr Benke as forming a proper foundation for the opinion he expressed [113].

10. The appellant’s submission that the most persuasive evidence of noise levels within the respondent’s premises was the worker’s own evidence was rejected for two reasons. First, the Arbitrator found the worker to be unreliable, a finding which was not challenged and was one that was clearly open to the Arbitrator. Second, the worker’s subjective account of noise exposure will generally not be preferred if there is particular evidence as to the noise levels in the particular employment (Ilievski) [115].

Failure to adduce medical evidence

11. The fact that the noise survey did not address the medical issues relating to the hearing loss did not make the evidence inadmissible or without weight, having regard to the type of evidence it related to. The submission that the report was either inadmissible or lacked weight because “any general assessment of noise in various places at the respondent’s place of business is irrelevant” was rejected. It was directly relevant for the reasons given. Contrary to the appellant’s submission, the issue was not whether the employment caused the worker’s hearing impairment as submitted. Proof of actual causation was not required. All that was necessary was for the worker to prove that the employment was one to which the nature of the injury was due (A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; 14 NSWCCR 158) [116].

12. There was no obligation on the respondent to obtain medical evidence.  If the worker was successful on the liability issues, the quantum of his hearing impairment would be referred for assessment by an AMS appointed by the Commission. There was no evidence that the respondent arranged for Mr Millan to be medically examined or that it held any medical evidence regarding the cause of his hearing impairment that was not disclosed to the appellant or to the Commission [125].

Procedural fairness

13. The submission that the Arbitrator’s reference to the Guidelines in rejecting the Jones v Dunkel submission was a denial of procedural fairness was rejected. The Arbitrator referred to the Guidelines to demonstrate that there were constraints on scheme agents to require workers to submit to independent medical examinations. However, the respondent did not assert that it was constrained in obtaining an independent medical examination by reason of the Guidelines; it simply chose to defend the application on a different basis. If he was wrong on this issue, his Honour Judge Keating said it would not make any difference to the outcome of the appeal because the Arbitrator’s principal reason for rejecting the Jones v Dunkel inference was, if liability was established, the quantum of the impairment would be determined by referral to one of the appointed AMSs [128].

Greater Western Area Health Service v Mackay [2012] NSWWCCPD 33

Evaluation of evidence

Keating P

18 June 2012

Facts:

Mr Mackay worked for the appellant employer as a health and security assistant at Bourke Hospital. On his days off from the hospital, he worked for the local IGA supermarket on a  casual basis as a security officer.

On 13 November 2008, whilst attempting to restrain a patient, Mr Mackay fell. He injured his left elbow, which was not disputed. The employer disputed the worker’s allegation of injury to his right knee in the same incident.

On 14 November 2008, Mr Mackay attended Dr Sewell who noted the incident at work and that Mr Mackay fell on his left elbow, striking it on the floor. On 17 November 2008, an x-ray was performed of the left elbow. The x-ray report noted degenerative changes in the elbow and evidence of a healed fracture from a prior trauma.

On 19 November 2008, Mr Mackay saw Dr Du Toit (at the same practice as Dr Sewell).  His left elbow was reviewed and the doctor certified Mr Mackay fit for work without restriction from 19 November 2008.

On 22 December 2008, Mr Mackay went on annual leave from his employment with the appellant until 24 January 2009. During this period, he worked for IGA, seven days a week, nine hours a day, when the shop was open. He said that work was essentially light work, undertaking security duties, which required him to patrol the store.

On 23 December 2008, while walking from his home to collect mail, Mr Mackay’s foot “clipped the side of the gutter”, causing his right knee to give way and causing him to fall. The following day he attended Dr Du Toit. The doctor recorded that Mr Mackay had fallen the previous day and injured his right knee. Mr Mackay’s right knee was x-rayed on 24 December 2008. No abnormality was found.

On 7 January 2009, while at home, Mr Mackay was standing on a chair to change a light bulb. As he was stepping down from the chair, he placed weight on the right knee, which gave way under his weight, causing him to fall heavily onto the knee and his right elbow.  He put out his right hand to break his fall and took most of his weight on the palm of his right hand and suffered a dislocation to the right elbow.

On 8 January 2009, around midnight, Mr Mackay attended Bourke Hospital and saw Dr Evans. Dr Evans noted the history outlined above and noted that Mr Mackay had consumed 10-12 drinks that evening “(more than usual)”. The dislocation to his right elbow was reduced.

Mr Mackay was incapacitated for work at IGA from 8 January 2009 to 24 January 2009 with respect to the injuries to the right knee and right elbow.

On 4 March 2009, Mr Mackay underwent a medial and lateral meniscectomy, and a full reconstruction of the anterior cruciate ligament.  He returned to work on 5 April 2009 on a structured return to work plan.

On 25 October 2011, Mr Mackay lodged an application in the Commission claiming weekly compensation benefits from 13 November 2008 to 31 January 2010, in the sum of $1,750 gross per week. He also claimed lump sum compensation of $15,400 in respect of an 11 per cent whole person impairment relating to the right lower extremity and the left upper extremity and $15,000 for pain and suffering.

The insurer denied liability on the basis that medical evidence confirmed that the worker did not sustain an injury to his right knee following the reported incident on 13 November 2009, nor did he sustain an injury to the right elbow or knee on 7 January 2009 as a result of his employment with the appellant.

The Arbitrator found in favour of Mr Mackay.

The appellant alleged that the Arbitrator erred:

(a) in the inferences drawn and the weight given to the document “Security Monthly Report”;

(b) in preferring a view of the primary facts when other probabilities so outweigh those chosen by the Arbitrator;

(c) in overlooking material facts or giving too little weight to those facts in deciding the inferences to be drawn, and

(d) in failing to have any regard to either of the opinions of the treating doctor, Dr Evans, and that of Dr Pillemer.

Held: Arbitrator’s decision confirmed.

1. The issue for determination was whether Mr Mackay suffered an injury to his right knee in the course of his employment during the incident on 13 November 2008.

2. The worker’s evidence on this issue was inconsistent with a number of objective facts.  He made no mention of the injury to his right knee to Dr Sewell or Dr Du Toit in November 2008 [100].  When seeing Dr Du Toit after the fall on 23 December 2008, he again made no mention of an injury to the right knee on 13 November 2008 [102].  After the incident on 7 January 2009, Dr Evans’s notes suggested that the history given by Mr Mackay suggested an injury to the knee being sustained a few days earlier, which was consistent with the injury to the knee initially having occurred in the incident on 23 December 2008, not on 13 November 2008, as alleged [102].

3. Mr Mackay relied upon a document styled “Security Monthly Report, November 2008” as corroborative evidence that he injured his right knee during the incident on 13 November 2008.

4. The appellant submitted that the security report was a self-serving document brought into existence to support the worker’s claim. Given that it was undated and unsigned, and no evidence was tendered in support of it being a contemporaneous report of injury, the appellant submitted that the Arbitrator erred by placing weight on it [105].

5. While the deficiencies placed doubt on the acceptance of Mr Mackay’s evidence, these were matters the Arbitrator carefully weighed before concluding that the worker had, on the balance of probabilities, established that he did in fact suffer an injury to his knee in the incident on 13 November 2008 [106].

6. Following the amendments to s 352 of the 1998 Act (in respect of Arbitrators’ decisions decided on and after 1 February 2011), it is the identification of error which now defines the appeal process. In this case, the Arbitrator preferred one view of the primary facts to another as being more probable. In accordance with the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (Kerr) (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227), such a finding may only be disturbed by a Presidential member if other probabilities so outweigh that chosen by the Arbitrator that it can be said that his or her conclusion was wrong. Having found the primary facts, the Arbitrator may draw a particular inference from them. It is not enough that the Presidential member may have drawn a different inference; it must be shown that the Arbitrator was wrong [107].

7. Reading the Arbitrator’s decision as a whole, he was alert to the inconsistencies in Mr Mackay’s case. He concluded that, absent the corroborative evidence of the security report, the remaining evidence would not have been sufficient to establish on the balance of probabilities that Mr Mackay injured his right knee at work on 13 November 2008. However, the Arbitrator was satisfied that, notwithstanding the inconsistencies in the medical history, the security report sufficiently corroborated Mr Mackay’s assertion of injury to the right knee in the incident on 13 November 2008 to discharge the onus of proof on the balance of probabilities. On the evidence, it could not be concluded that the Arbitrator erred in reaching that conclusion [108].

8. The Arbitrator recognised that the conclusions open to him were finely-balanced on the evidence. Although the Arbitrator accepted that the monthly security report on which Mr Mackay relied was undated and unsigned, he dismissed the appellant’s submission that it “lacked provenance” for several reasons. First, that it was likely that the report was prepared by Mr Mackay, a conclusion that was strengthened by the use of the phrase in that report, “We had to tackle him to stop him” [109].

9. Second, the report dealt with security issues which appeared to have arisen during the month of November and it was likely that such a report would be prepared on a monthly basis and submitted at some time during the following month [110].

10. Third, the appellant produced no evidence in response to the security report even though the reports were likely to be in the possession of the appellant and it could reasonably be expected that matters such as who prepares them and when they are prepared would be within the knowledge of the appellant employer [111].

11. Fourth, on its face, the document appeared to be a record of the appellant [112].

12. Fifth, in the absence of any evidence contradicting or explaining the significance of the document in some other way, the Arbitrator was satisfied that the document was probably lodged as a security report after 1 December 2008 and prior to Mr Mackay going on leave on 22 December 2008 [113].

13. Sixth, the Arbitrator inferred that, because of the monthly nature of the report and the nature of the events reported on, it would appear to require a reasonably immediate response. He concluded that a report of this nature more than a month old would be of limited assistance to the organization [114].

14. In reaching his conclusion, the Arbitrator weighed the fact that the notebook entry of the injury on 13 November 2008, referred to by Mr Mackay in his statement, which could have further corroborated his claim, was not in evidence. The Arbitrator made specific reference to the absence of the notebook [116].

15. There was no evidence to suggest that any of the reasons given by the Arbitrator for his acceptance of the notation in the security report was contrary to the evidence and, given his acceptance of the worker’s evidence, his Honour Judge Keating was not persuaded that other probabilities for which the appellant contended so outweighed those chosen by the Arbitrator that it could be said his conclusion was wrong [117].

Fire & Rescue NSW v Hogrefe [2012] NSWWCCPD 34

Schedule 6 Pt 18C cl 3 to the 1987 Act; determination of amount by which compensation payable is to be reduced

O’Grady DP

29 June 2012

Facts:

Mr Hogrefe was employed as a firefighter with Fire & Rescue NSW, the appellant, from 1980 until 29 September 2006 when he was medically retired. In the course of his employment, Mr Hogrefe received various physical injuries and was exposed to a number of very distressing incidents.

On 25 February 2006, Mr Hogrefe experienced significant abdominal pain which caused him to collapse whilst on duty. He was paid provisional weekly compensation for a period before returning to suitable duties.

On 20 October 2006, he claimed workers compensation benefits for post traumatic stress, anxiety/depression and injuries to right knee and right elbow. Liability was accepted and weekly compensation benefits were paid.

In August 2009 Mr Hogrefe’s solicitors forwarded a workers compensation claim form to the appellant’s insurer. That form did not particularise the benefits claimed, however the injury alleged was particularised as “post traumatic stress disorder caused by the nature and conditions of employment (see Annexure 1)”. The annexure contained detail of seven very distressing and traumatic incidents to which Mr Hogrefe had been exposed in the course of his duties.

Mr Hogrefe’s solicitors wrote to the insurer on 14 October 2009 giving notice of a claim for compensation pursuant to ss 66 and 67 of the 1987 Act. Liability for the lump sum claim was declined on the basis of the provisions of cl 3(2) of Pt 18C to Sch 6 to the 1987 Act.

Mr Hogrefe registered an Application to Resolve a Dispute with the Commission in April 2011. A Certificate of Determination was issued on 22 March 2012 in the following terms:

“The Commission determines:

1. Thirty per centof the applicant’s permanent impairment as a result of psychological injury on 25 February 2006 (deemed date) is due to his exposure to traumata in the employ of the respondent prior to 1 January 2002.

2. Award for the applicant in the sum of $16,100 pursuant to section 66 of the Workers Compensation Act 1987, for psychological injury on 25 February 2006 (deemed date), being the difference between the sum of $23,000 payable in respect of an agreed 17 per cent whole person impairment and thirty percent thereof.

…”

The issues in dispute on appeal were whether the Arbitrator erred when addressing the proper application of cl 3(2) of Pt 18C of Sch 6 to the 1987 Act and in the manner of application of the transitional provisions found in Sch 6 to the facts as found [11]–[12]. The parties had previously agreed that should a reduction be made in accordance with cl 3, such reduction “should be a reduction in the compensation payable, rather than in the degree of whole person impairment: Fleming v NSW Police Force [2011] NSWWCCPD 33” [52].

Held: Arbitrator’s decision confirmed.

1. A worker’s entitlement to lump sum compensation in respect of psychological injury was introduced following the passage of the Workers Compensation Legislation Amendment Act 2001, which became operative on 1 January 2002, making provision for the insertion of s 65A in its present form into the 1987 Act [60].

2. The deemed date of injury agreed between the parties was “the date of medical retirement” which was 29 September 2006 and not 25 February 2006 as found by the Arbitrator. Nothing turned on that conflict. The Arbitrator’s finding was one in respect of a deemed date of injury and that such injury fell within either s 4(b)(i) or s 4(b)(ii) of the 1987 Act, and unspoken notice had been taken of either ss 15 or 16 of that Act. The Arbitrator’s finding in respect of the deemed date of injury was open to him on the evidence (see P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 215; 49 NSWLR 481, GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 and Milburn v Veolia Environmental Services (Australia) Pty Ltd [2012] NSWWCCPD 26) [60].

3. The questions raised on this appeal were the subject of consideration by the Court of Appeal in SAS Trustee Corporation v Pearce [2009] NSWCA 302 (Pearce) where it was stated by Basten JA (Beazley JA agreeing):

“111. To the extent that the PTSD constituted, or was the consequence of, an injury received before the commencement of the amendments, the lump sum compensation amendments did not apply. However, once the Commissioner determined that the injury happened in 2005 because the PTSD constituted a disease within the terms of s 15 or s 16, it was an injury received after the commencement of the amendments on 1 January 2002. The transitional provisions are then engaged.

112. The reduction required by the transitional provision turns on a causal connection between the impairment and events which occurred before the commencement of the amendments. There may be various circumstances in which an injury is received after a particular date but is “due to something” that occurred before that date. Circumstances which engage ss 15 or 16, providing for deemed dates of injury, could also engage the transitional provision and require a reduction under cl 3(2). They require the assessment of a “proportion” of the impairment which is “due to” events occurring before 2002.”

4. The appellant unsuccessfully challenged the Arbitrator’s factual findings as to the extent of the causal connection between the impairment and the traumatic events noted by Dr Westerink, consultant psychiatrist, which occurred prior to 1 January 2002. The appellant also suggested that the Arbitrator applied the wrong test when determining the relevance of those traumatic events, and of events after 1 January 2002. This argument was rejected [63].

5. The suggestion that the Arbitrator confused “the concepts of incapacity and impairment” was rejected. The Arbitrator treated the events of 25 February 2006 as causative, in part, of injury and found that the injury gave rise to incapacity [67].

6. The submission that the Arbitrator erred in failing to reduce the compensation payable by 100 per cent was rejected. The Arbitrator addressed the matters raised in Pearce concerning the determination of an appropriate proportion of the compensation payable [70].

Inghams Enterprises Pty Ltd v Stanhope [2012] NSWWCCPD 32

Section 60(5) of the 1987 Act; employer’s liability for proposed treatment or service; referral by Registrar of dispute concerning proposed treatment or service to an Approved Medical Specialist for assessment; mandatory requirement to refer; consequences of failure to remit matter to Registrar for referral; weight of evidence concerning alleged injury

O’Grady DP

15 June 2012

Facts:

Mr Stanhope has been employed by Inghams Enterprises Pty Ltd (the appellant) for the past 30 years. Since approximately 1995 his duties have been those of a maintenance worker on chicken farming properties.

Mr Stanhope alleged that he suffered injury, being bilateral carpal tunnel syndrome, as a result of the forceful and repetitive use of his arms, hands and wrists in the course of his employment. He reported the injury in September 2009. The appellant declined liability for the cost of recommended surgical treatment.

Following an unsuccessful review of the decision to deny liability, Mr Stanhope filed an Application in the Commission seeking an order “under Section 60(5) of the Workers Compensation Act 1987 for the reasonably necessary cost of bilateral carpal tunnel release surgery and any related medical costs”.

The Senior Arbitrator found that Mr Stanhope sustained an injury within the meaning of s 4(b)(ii) of the 1987 Act, to which his employment was a substantial contributing factor, that it was reasonably necessary for him to undergo treatment in the form of bilateral median nerve decompression and that as there was no dispute concerning the proposed treatment, it was not necessary to refer the matter for assessment in accordance with section 60(5) of the 1987 Act. The appellant was also ordered to pay Mr Stanhope’s reasonably necessary treatment expenses in accordance with s 60.

The issues in dispute on appeal were that the Arbitrator:

(a) failed to refer the dispute to an AMS as required by s 60 of the 1987 Act;

(b) did not correctly evaluate the evidence of Drs Bentivoglio and Lyons when considering causation of Mr Stanhope’s condition of bilateral carpal tunnel syndrome;

(c) failed to consider the fact that Mr Stanhope’s initial complaints in September 2009 were confined to his right hand only;

(d) failed to properly consider whether the date of injury alleged (1 September 2009) “had been made out”, and

(e) erred in determining a date of injury being one “not relied upon or asserted” by Mr Stanhope.

Held: Paragraph 1 of the Arbitrator’s decision was confirmed. Paragraphs 2, 3, 4, and 5 were revoked. Deemed date of injury was found to be 10 February 2010 and the matter was remitted to the Registrar for referral to an AMS.

Referral of the dispute to an AMS

1. Section 60(5) requires that the referral of the dispute by the Registrar for assessment under Pt 7 (Medical assessment) of Ch 7 of the 1998 Act “must” take place. The use by the legislature of the word “must” suggests that the requirement is mandatory rather than simply directory. This distinction is discussed by Giles JA (with whom Sheller JA and Davies AJA agreed) in Baker v Rothmans of Pall Mall (Australia) Ltd [1999] NSWCA 245; 18 NSWCCR 374 [55]. See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 391. The non-performance of a mandatory statutory requirement, such as the requirement of referral, has the consequence that the findings and orders of the Arbitrator concerning the dispute relating to proposed treatment are null and void having been made without jurisdiction (Minahan v Baldock [1951] HCA 27; 84 CLR 1 per the Court at 11; Hatton v Beaumont (1977) 2 NSWLR 211 (Hatton) per Hope JA at 220) [54].

2. Section 60(5) was inserted into the 1987 Act by the Workers Compensation Amendment Act 2010 to extend the jurisdiction of the Commission to permit the making of orders for payment of proposed medical treatment [57]. Section 60(5) addresses the subject of a medical dispute as defined by s 319 of the 1998 Act [58]. Part 7 of Ch 7 of the 1998 Act makes provision for medical assessment in the case of a medical dispute [59]. An assessment of a dispute concerning future medical expenses would be evidence (but not conclusive evidence) in proceedings before the Commission (s 326(2)) [60]. Parliament intended the Commission to have the benefit of this evidence in such disputes [61]. However, this intention is not determinative of the force of the provision (see Hatton at 26) [61].

3. The proper construction of s 60(5) requires that the liability questions concerning whether such proposed treatment was as a result of injury and whether the treatment was reasonably necessary may only have been answered following remitter to the Registrar for referral to an AMS. As the requirements concerning referral found in s 60(5) are mandatory, the failure to remit meant that the Arbitrator’s findings and orders concerning the proposed treatment were null and void [63].

Evidence of Drs Bentivoglio and Lyons

4. The appellant’s submission that Dr Bentivoglio “took an extremely limited history of the work activities” was rejected, as the history that was taken was consistent with Mr Stanhope’s evidence [66].

5. The appellant submitted that Dr Lyons placed reliance on “a different history” to that of Dr Bentivoglio. This was rejected as the history was consistent with matters recorded by Dr Bentivoglio and Mr Stanhope’s evidence [67].

6. It was open to the Arbitrator to accept the evidence of Drs Bentivoglio and Lyons in preference to that of Dr Stapleton. The Arbitrator made an evaluation of the weight of the evidence of each expert witness and stated her reasons for her preference which included an apparent contradiction in Dr Stapleton’s evidence [68]–[69].

Initial complaints in September 2009 confined to his right hand

7. Mr Stanhope’s initial complaints and treatment were focussed on pain and disability in his right hand. However, the evidence established that the investigations confirmed the existence of bilateral carpal tunnel syndrome. His general practitioner confirmed a diagnosis of bilateral carpal tunnel syndrome during a consultation on 12 November 2009. The Arbitrator’s acceptance of this evidence was open to her [70]–[72].

Date of injury

8. The Arbitrator made no finding as to the date of injury. The Arbitrator’s failure to make a finding as to the date of injury was an error of law [82].

9. Once it is accepted that the injury alleged was one as defined in s 4(b)(ii), namely the aggravation etc of a disease, a proper determination of the appellant’s liability or otherwise to pay the compensation claimed required the Arbitrator to address all questions “posed by the statute” (per Mahoney A-P in Crisp v Chapman (1994) 10 NSWCCR 492 at 498) including whether Mr Stanhope received injury and if so, the date of such injury [81].

10. The appellant’s submission that the Arbitrator was bound to either find injury to have occurred on the date particularised by Mr Stanhope or otherwise enter an award for the appellant was rejected [79], [82].

11. Once injury is found, the provisions of s 16 should have been applied to ascertain the date of injury. The evidence established that a claim for compensation in respect to the injury was made on 10 February 2010. Therefore, as the injury giving rise to the claim did not result in death or incapacity, the date of injury was to be determined by s 16(1)(a)(ii). The deemed date of injury was found to be 10 February 2010.

Icejade Pty Ltd t/as Ryan’s Hotel v Summers [2012] NSWWCCPD 31

Disease; deemed date of injury; incapacity; s 16(1)(a)(i) of the 1987 Act

Roche DP

15 June 2012

Facts:

Ms Summers worked as a bar attendant for the appellant employer, Icejade Pty Ltd trading as Ryan’s Hotel, from 1983 to 30 August 2009. Her duties involved repetitive bending, twisting, flexing and rotating her neck. She developed neck pain in about 2005, which increased over time.

X-rays of her cervical spine revealed degenerative scoliosis and degenerative changes in the form of spondylosis and osteoarthritis. On a date not disclosed in the evidence, she reduced the number of shifts she worked per week.

By August 2009, her symptoms had spread to include left arm pain and tingling that radiated into her hands. Ms Summers stopped work after her shift on 30 August 2009 because of her symptoms.

Ms Summers underwent a cervical discectomy at the C6/7 level on 28 September 2009 and a fusion (with fixation) on 26 March 2010.

She claimed weekly compensation for partial incapacity from 1 July 2004 to 31 August 2009 and for total incapacity from 1 September 2009 to date and continuing, and lump sum compensation in respect of a 23 per cent whole person impairment due to her neck condition.

The employer’s three insurers disputed the following issues at the arbitration:

(a) whether Ms Summers had received an injury to her cervical spine within the meaning of s 4(b)(ii) of the 1987 Act;

(b) whether she suffered an incapacity as a result of that injury, and

(c) the correct deemed date of injury under s 16 of the 1987 Act.

The Arbitrator found in favour of Ms Summers on those first two issues. She found Ms Summers was totally incapacitated from 31 August 2009 to date and continuing and that that was the deemed date of injury under s 16(1)(a)(i) of the 1987 Act. She essentially based this finding on “insufficient medical or other evidence to support a finding of economic incapacity as a result of the work injury prior” to that date.

One of the insurers, Hotel Employers Mutual Ltd, challenged the Arbitrator’s finding of a deemed date of injury on 31 August 2009 instead of 26 January 2006. The appeal was opposed by the other insurers.

Held: Arbitrator’s decision confirmed.

1. The Arbitrator was not persuaded that the reduction in Ms Summers’ earnings was as a result of her neck condition. This finding was open on the evidence and disclosed no error [29]. There was no persuasive medical evidence that the reduction in her income in the financial year ending 30 June 2005 (compared to 2004) resulted from any work injury [30]. There was evidence that the reduction in Ms Summers’ hours coincided with a period when the appellant recruited younger staff [31]. Her earnings were not definitive, her income fluctuated and her earnings in 2006 were comparable to her earnings in 2002 and 2003 before she developed any neck symptoms [32].

2. The Arbitrator had to determine the date of incapacity, that is, the date on which Ms Summers was entitled to compensation (in accordance with P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481), not the date of first complaint of symptoms [37].

3. The need for treatment, and the fact that Ms Summers had acupuncture and other treatment prior to August 2009, was of no consequence to the determination of the date of incapacity. It did no more than establish that she had symptoms in that period, not that she suffered an incapacity that entitled her to compensation [42].

4. The Arbitrator’s conclusion that there was insufficient medical or other evidence to support a finding of economic incapacity as a result of the work injury prior to 31 August 2009 was open to her on the evidence [45]. The lack of evidence from her treating general practitioner that any incapacity commenced before August 2009 also supported this conclusion [46].

5. The hotel licensee’s evidence that Ms Summers was always given time off for overseas holidays and for neck surgery did not establish that Ms Summers was incapacitated in either 2004 or from January 2006 [52]. His evidence that she had not previously recorded an injury or requested light duties until she ceased work in August 2009 supported the Arbitrator’s conclusion [53].

6. The history contained in Dr Mobbs’ (treating specialist) report was consistent with Ms Summers having continued her normal duties until the end of August 2009 and with a significant deterioration in her condition in the months leading up to her ceasing work [61].

7. The WorkCover certificate and report of 14 March 2011 by one of her treating general practitioners made no mention of her being incapacitated by her neck symptoms prior to August 2009. There was “insufficient” medical or other evidence to support a finding of economic incapacity prior to 31 August 2009 [62].

8. The submission that Ms Summers was incapacitated from 26 January 2006 was inconsistent with submissions made on behalf of the appellant at the arbitration [63]–[64]. Parties are bound by the conduct of their case at the arbitration and usually cannot raise new arguments for the first time on appeal: University of Wollongong v Metwally (no 2) [1985] HCA 28; 60 ALR 68 at 71.

Gibbs v Trustees of the Roman Catholic Church of the Diocese of Lismore[2012] NSWWCCPD 30

Psychological condition; injury; causation; evaluation of evidence

DP Roche

1 June 2012

Facts:

The appellant worker, Vicki Gibbs, worked for the respondent as a carer/activities officer at the respondent’s Mater Christi aged care facility at Toormina between September 2003 and June 2005. She alleged that she suffered a psychological injury as a result of being “regularly harassed and bullied in the workplace, placed under an extreme amount of workplace pressure by her superior Ms Susanne Wheelahan and other staff, [being] intimidated and humiliated in the workplace and [having] unreasonable workplace demands made upon her” in the course of her employment.

The respondent disputed that the worker received any injury and, if she had, disputed that her employment was a substantial contributing factor to that injury. In the alternative, it argued that any psychological injury resulted from reasonable action taken by it in respect of performance appraisal, dismissal and transfer. It also disputed whether the worker suffered any incapacity.

The Arbitrator found that the worker was not a reliable witness and that he preferred the evidence from Ms Wheelahan, and the other witnesses who gave evidence for the respondent, that no bullying or harassment occurred and that the respondent had not made unreasonable demands on the worker. As the worker’s medical case was largely dependent upon the accuracy of the worker’s evidence, which the Arbitrator did not accept, he did not accept her medical case and made an award for the respondent.

The appellant submitted that the Arbitrator erred in:

(a) the manner in which he purported to apply the principle in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler) and Attorney General’s Department v K[2010] NSWWCCPD 76 (Attorney General v K);

(b) the comprehension and evaluation of the evidence by finding that the worker’s credit was impugned by a psychotic or delusional perception, and

(c) overlooking material facts in coming to his determination.

Held: Arbitrator’s decision confirmed.

Chemler

1. The principles in Chemler do not eliminate the need for a worker to establish that his or her injury has been caused or contributed to by the relevant employment and that employment was a substantial contributing factor to the injury. Causation was the critical issue in this case and, for the reasons explained by the Arbitrator, Ms Gibbs failed to establish that her employment caused her psychological condition [193].

2. The Arbitrator’s reasons fully disclosed the basis for his conclusions. He found the worker’s evidence to be unreliable and did not accept it. Dr Clark’s opinion was based on an acceptance of the accuracy of the worker’s complaints that she had been bullied and harassed. The rejection of the worker’s allegations that she had been bullied and harassed provided a sound basis for not accepting Dr Clark’s evidence [194].

3. The submission that it seemed more likely that the Arbitrator found that the events at work, and the worker’s perception of them, did not cause any psychological injury because the worker “was already so badly affected by such an injury that it could not be said that her perceptions influenced the course of her condition”, was simply untenable and was not supported by any reference to the decision or any reasoned argument [195].

4. The Arbitrator made no finding of the kind referred to in the preceding paragraph. He accepted that the evidence suggested the worker was suffering from a psychological condition during the latter months of her employment. However, the critical issue was whether her employment had caused or contributed to her condition. The Arbitrator concluded that the worker had not established her case [196].

5. The Deputy President did not accept that the evidence showed that Ms Gibbs had been bullied and harassed in the workplace. The evidence of Ms Bragg established no more than that she believed the worker was not coping with her work and that she had spoken to her about it in the “quiet room”, a room the worker described as a storage closet [198]. The evidence from Ms Ireland was that the worker was volatile at work and responded to approaches in a negative and offensive way. Her statement that the worker often misunderstood what people were endeavouring to do was some evidence of a misperception of events by the worker. However, the worker had to establish that that misperception caused her injury. She failed to do so [199].

6. Ms Hale said that Ms Bragg and the staff in the dementia unit “went to a lot of effort to support [the worker] because when she was experiencing one of her mood swings, she was totally unsuitable for her role in the dementia unit”. The conversation referred to in the submissions on appeal occurred at Ms Hale’s home in June 2005. The worker said that Ms Hale was going to lose her job because of time she (Ms Hale) had had off through illness. After making inquiries, Ms Hale concluded that what the worker had said to her was false. If anything, this evidence tended to undermine significantly the reliability of the worker’s evidence. The Arbitrator’s acceptance of Ms Hale’s evidence in preference to the worker’s evidence was open to him and disclosed no error [201].

7. Accepting that the worker’s hours were reduced, that there were difficulties with her roster and that she had made complaints about Mr O’Donohue, the evidence did not establish that those matters caused her psychological condition. There was no persuasive medical evidence that those matters on their own, and leaving aside any issue of bullying and harassment, caused or contributed to her injury, and that was a critical omission in the worker’s case [204].

8. The Deputy President did not accept Mr Morgan’s submission that the Arbitrator developed a “theory” about causation and diagnosis. The Arbitrator referred to, and relied on, the evidence that, in 2005, the worker suffered from a psychosis. That evidence was from several sources, but mainly from Dr Patterson and Ms Gray. As the treating psychiatrist, Dr Patterson’s evidence was entitled to significant weight. He provided clear and cogent evidence that the worker had suffered from an “amalgam of psychotic symptoms” over at least six months prior to December 2005. That conclusion was strongly supported by the evidence from Dr Leal that the worker suffered delusions in July 2005 and by Ms Gray’s evidence in October 2005 of a six-month history of psychosis [205].

9. The Arbitrator was justified in concluding that the evidence that the worker suffered from psychotic episodes in 2005 was “compelling”. Given this finding, it also followed that it was open to the Arbitrator to conclude that he was unable to accept her as a reliable witness as to the events that occurred at work [207].

10. Though the Arbitrator accepted there were incidents of interpersonal conflict between the worker and other employees, the Deputy President did not accept that, in reaching his conclusion, the Arbitrator ignored the relevance of the clinical notes, which referred to problems at work, or that his reasons were internally inconsistent. While it was accepted that there were conflicts at work, and that, except to the extent that it was relevant under s 11A, it did not matter who instigated those conflicts, that did not mean the worker had to succeed or that the Arbitrator erred in finding in favour of the respondent. The Arbitrator was required to weigh all the evidence, lay and expert, to determine if the worker had suffered a compensable injury. He did that and concluded that the worker had not established her case. That finding was open and neither the conclusion nor the reasoning disclosed any error [217].

Mr O’Donohue

11. Contrary to the worker’s submissions, the Arbitrator did comment on Mr O’Donohue’s behaviour and expressly noted that the worker alleged that he had “continually harassed her at work”. He correctly recorded that, apart from the complaint of 5 October 2004, there was no further record of any complaint by the worker about Mr O’Donohue [230].

12. While the Arbitrator did not refer to the worker being the butt of jokes because Ms Wheelahan referred at a meeting to Mr O’Donohue’s accusation that the worker was sexually harassing him and stalking him, he referred to the allegation (denied by the worker) that the worker had had a relationship with Mr O’Donohue. Given that the evidence in this case exceeded 900 pages, and given that the worker’s counsel made no submissions on this point at the arbitration, it was hardly surprising that the Arbitrator did not refer to it in his decision [231].

13. It was not open on appeal to complain that the Arbitrator erred in not dealing with an issue that was not the subject of submissions (Brambles v Bell [2010] NSWCA 162; 8 DDCR 111). In these circumstances, the Arbitrator’s failure to refer to the worker being the butt of jokes because of Mr O’Donohue’s allegation that she had sexually harassed him involved no error. If the Arbitrator did err in failing to consider this issue, in the absence of medical evidence dealing with the effect it had on the worker’s condition, the Deputy President did not believe it affected the result [232].

14. The Arbitrator made a finding of fact that the worker had not been bullied or harassed. He based that finding on an acceptance of the evidence called by the respondent and a rejection of the worker’s evidence, which he found to be unreliable. It followed that, even assuming that Mr O’Donohue’s evidence would not have advanced the respondent’s case, the absence of evidence from him could not disturb the finding actually made [239].

15. The submission that the respondent had not met its evidentiary onus to overcome the prima facie case made out by the worker was based on a false assumption that the worker established a prima facie case. The Arbitrator did not accept that the worker had established a prima facie case, but found that she had not made out her case. That finding was open to him and disclosed no error [240].

16. While the Deputy President accepted that the worker had complained about Mr O’Donohue’s conduct in 2004 that did not mean that the Arbitrator erred in failing to accept that the things complained of occurred. Though the respondent did not call evidence from Mr O’Donohue, it tendered evidence from other witnesses that contradicted the worker’s evidence on several critical issues. It followed that it was incorrect to say, as had been submitted on appeal, that the worker’s allegations were substantiated and unchallenged. The Arbitrator accepted the evidence from the respondent’s witnesses and rejected the worker’s evidence. It was open to him to do so [241].

17. In any event, even if it were accepted that Mr O’Donohue had treated the worker in the manner alleged, that did not establish the worker’s case. It was still necessary for Ms Gibbs to establish that his conduct caused a psychological injury. Given that the worker said in the document headed “To Whom It May Concern” that most of what Mr O’Donohue did was “petty and/or demeaning” it was difficult to accept that, if those events did occur, they caused or contributed to an injury, or were a substantial contributing factor to an injury. That was especially so in circumstances where, on balance, it is likely that Mr O’Donohue was not working with the respondent after 2 March 2005 [243].

Aggravation

18. The worker did not base her case at arbitration on an aggravation of a pre-existing condition. Dr Clark concluded that the most probable cause of the worker’s depression was the stress she experienced while at work. He did not refer to her having suffered an aggravation of a pre-existing condition [245].

19. As the worker’s counsel at the arbitration never submitted that his client had suffered an injury in the nature of an aggravation of a disease, it was not open to challenge the Arbitrator’s decision for failing to find that the conduct complained of aggravated a pre-existing psychological condition. It followed that the Arbitrator did not err in failing to deal further with an issue never argued (Bell) [246].

20. In the absence of any evidence that, because of her employment with the respondent, the worker suffered an aggravation of a pre-existing psychological condition, this conclusion was open on the evidence and disclosed no error [249].

Evidence overlooked and onset of condition

21. The finding that, because of the worker’s mental health, her evidence was unreliable was open to the Arbitrator and disclosed no error. Moreover, that was only one reason the Arbitrator gave for not accepting the worker’s case. He also referred to and preferred the evidence of the respondent’s witnesses [276].

22. The submissions on appeal seemed to have assumed that, because the worker’s condition deteriorated after she ceased work for the respondent, the deterioration occurred because of the employment and the circumstances in which it ceased. Given that there was no persuasive expert evidence to that effect, and given that counsel made no submissions to that effect at the arbitration, the Arbitrator’s failure to make that finding involved no error [277].

23. The submission that the Arbitrator did not explain the deterioration in 2005 was incorrect. The Arbitrator referred to incidents in 2005 outside the worker’s employment that were potentially extremely stressful. The first was when the worker took in a boarder or sub-tenant who left her financially out of pocket. The second was when she took in a man and his sons on the same basis, only to find that he “went to the real estate and told them that [the worker] was moving out and signed documents and took over the house and then kicked me out”. The worker did not challenge either of those observations [278].

Dr Patterson’s evidence

24. The submission that it was not until the worker had stabilised that the cause of her condition was investigated was of limited assistance. There was no persuasive medical evidence supporting the claim until Dr Clark’s report of 29 October 2010, which he prepared after his examination on 20 October 2010. The Deputy President noted Mr Petersen’s report of 15 July 2009, though neither party made any submissions about it at the arbitration or on appeal. That report was of little probative value because, rather than taking a history and expressing an opinion based on that history, he appeared to have assumed that the worker suffered from post-traumatic stress disorder as a result of her experiences with the respondent. That was the very issue in dispute. To the extent that he based his opinion on a history that the worker had been subjected to constant emotional abuse while she worked with the respondent, the Arbitrator did not accept that to be so and, as a result, his opinion was of little weight [294].

25. The submission that Dr Patterson “acknowledged the involvement of the respondent” was of limited assistance. He merely recorded that “recent stressors are multiple and varied” and included an “alleged run in with the Director of the aged home where she worked, or the sense that she was being constantly belittled”. He did not suggest that work with the respondent, or the circumstances of the termination of her employment, were the cause of the worker’s condition. Rather, after referring to other stressors, namely, the abuse by her carer and “no money, no phone, no car”, he said it was difficult to identify with any assurance which of these episodes had actually occurred and whether her recollection was reliable, it being “coloured by the filter of her personality” [296].

26. It was not to the point that none of the medicolegal experts diagnosed the worker as continuing to suffer from a psychosis or that no expert regarded her as suffering from a psychotic condition while employed by the respondent. Dr Patterson’s history was that the worker had experienced an “amalgam of psychotic symptoms” over “at least the last 6 months” and that “over the last 18–24 months” her medical history included “diffuse neurological symptoms, including ‘visual flashes’, episodes of difficulty with articulation and co-ordination with an aura and post-episode fatigue”. Though the Arbitrator did not refer to the latter part of this history, it provided further support for the doubts he expressed about the reliability of her evidence that she had been harassed at work [299].

Dr Clark’s evidence

27. As Dr Clark assumed a history relating to the development of the worker’s illness that was “starkly different to the facts” the Arbitrator accepted and which omitted matters of history that were important, the Arbitrator was not “satisfied that his opinion [was] persuasive on the issue of causation”. That finding was open and disclosed no error [307].

28. Dr Clark’s history was based on the worker’s statement of 20 July 2010, which was, in essence, that she had been bullied and harassed out of her job and experienced obstructiveness, stress and bullying in her work situation. He diagnosed depression and concluded, after noting that there was no pre-existing condition, that it was “most probable that this depression started with the events at work” [308].

29. The worker’s childhood experiences were not decisive in the Arbitrator’s determination, but were a matter that he was entitled to consider in assessing the weight he gave to the expert evidence. That was especially so in the context of Dr Patterson’s history that the worker believed she had been “singled out for different attention from her parents, and was the odd one out”. That was, according to Dr Patterson’s history, a theme in her life, namely, “that she felt under-appreciated and that her life was ‘one long story of abuse’” [309].

30. The Arbitrator’s conclusion about the weight he gave to Dr Clark’s evidence did not depend wholly, or even mainly, on the missing history of the psychosis or the lack of analysis of the childhood experiences, though those were matters the Arbitrator was entitled to consider. The Arbitrator did not accept the essential plank in the worker’s case, namely, that she had been bullied and harassed at work. In light of that critical factual finding, which was open to him, logic dictated that Dr Clark’s evidence was not persuasive on the issue of causation. This conclusion involved no breach of the principles discussed in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 and was open on the evidence [310].