Issue 8: August 2013

Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37

1. There are three categories of claimant/worker with different dates for the commencement of the weekly payments amendments depending on the category the worker comes within:

(a) in the case of a claim made on or after 1 October 2012, the weekly payments amendments apply from the date on which the claim is made (note to cl 3(1) of Sch 8);

(b) for existing recipients of weekly compensation immediately before 1 October 2012, the weekly payments amendments apply on a date three months after the insurer makes a work capacity decision (cl 6 of Pt 19H and cl 22 of Sch 8). A work capacity decision arises from a work capacity assessment, which assessment must be done within 18 months of 1 October 2012 (cl 17 of Sch 8), and

(c) for claims made before 1 October 2012, but where the worker is not an existing recipient of weekly compensation, the weekly payments amendments and the relevant transitional arrangements do not apply to the “compensation payable” in respect of the injury until 1 January 2013 (cl 3(1) of Sch 8) [10].

2. Before the quantum of weekly compensation payable to a worker can be determined under the weekly payments amendments, it is necessary to determine, among other things, into which entitlement period the claim falls [12].

Submissions

3. The appellant submitted that the provisions in the 2012 amending Act did not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by Pt 19H (cl 3(2) of Pt 19H). As the worker was paid weekly compensation from early 2011, that is, for a period before the weekly payments amendments commenced, the new ss 36 and 37 (which deal with the calculation of weekly compensation payable in the first and second entitlement periods respectively) “[do] not apply” in this matter [21].

4. To determine that either entitlement period can run in the period from the date of the worker’s first incapacity on 28 January 2011 (which, it was assumed, was also the first date on which she received compensation) is to “apply” ss 36 and 37 to that period, which ignores the effect of cl 3(2) of Pt 19H, which states that the new provisions “[do] not apply”. The same situation arises from compensation that is “payable in respect of any period” before 1 October 2012 (cl 3(1) of Sch 8) [22].

5. If ss 36 and 37 do not apply until 1 January 2013, the entitlement periods they create cannot apply and commence to run until that date [24].

6. The appellant submitted that cl 9(4) of Sch 6 does not apply to the worker because she was not an existing recipient of weekly compensation immediately before 1 October 2012 and cl 9 only applies to existing recipients. This submission was based on the following: cl 9 comes after cl 8 of Sch 6, which deals with work capacity assessments of existing recipients of weekly payments, the heading to cl 9 states “[w]eekly payments amendments to apply after work capacity assessment”, and cl 9(1) expressly refers to existing recipients [25].

7. It was submitted that the words of cl 9(4) provide for the entitlement periods for existing recipients of weekly benefits to start to run on 1 October 2012 [34]. It was further asserted that interpreting cl 9 in this way prevents conflict with other provisions and common law principles [35].

Discussion and findings

8. The appellant’s submission regarding cl 3(2) of Pt 19H only had substance if cl 9(4) of Sch 6 did not apply to the worker, and where the appellant’s interpretation of cl 3 of Sch 8 was accepted. The Arbitrator was correct to find that cl 9(4) did not apply in the circumstances and that cl 3 of Sch 8 did not operate in the manner suggested by the appellant [37].

9. The wording of cl 8 of Sch 6 provides no assistance in determining the application and meaning of cl 9(4). Each clause performs a separate and independent function. Clause 8 deals with work capacity assessments for existing recipients of weekly payments of compensation. Clause 9(1) deals with when the weekly payments amendments apply to existing recipients of weekly compensation immediately before 1 October 2012. Sub-clause (2) of cl 9 is linked to sub-cl (1) of cl 9 by use of the conjunction “[h]owever”. Sub-clause (3) of cl 9 relates to the transitional amount [38].

10. The worker in this matter fell within the third category of worker/claimant. Though it had been conceded that such workers were not existing recipients, there was no valid reason why sub-cl (4) of cl 9 would not apply to them [44].

11. As sub-cl (4) of cl 9 does not refer to a specific date, but only uses the general expression “the commencement of [the] amendments”, the logical conclusion was that it is of general application to workers in categories two and three. It arguably applies to existing recipients of weekly compensation (workers in category two) in the manner suggested by the appellant [45].

12. However, sub-cl (4) also applies to workers in category three, such as the worker, for whom the weekly compensation amendments apply from 1 January 2013. This was reinforced by the use of the definite article “the” in the phrase “the worker” in cl 9(1), which, by its terms, applies only to existing recipients. This is to be contrasted with the use of the indefinite article “a” in the phrase “a worker” in cl 9(4), which applies to workers generally [46].

13. It followed that, applying cl 9(4), for the purpose of the application of the weekly payments amendments to weekly compensation payable to the worker after 1 January 2013, a reference in Div 2 of Pt 3 of the 1987 Act to “a period in respect of which a weekly payment has been paid or is payable” includes such a period that occurred before 1 January 2013. The reference in cl 9(4) to the period “in respect of which a weekly payment has been paid or is payable” is a reference to the words used in s 32A in defining the first and second entitlement periods [47].

14. While it is correct that the amendments include the new provisions in ss 36 and 37, those provisions do not create the entitlement periods but merely prescribe the methods to be used to calculate the quantum of compensation payable. The entitlement periods are defined in s 32A by reference to the words used in cl 9(4), namely, to a period “in respect of which a weekly payment has been paid or is payable to the worker” [49].

15. Consistent with cl 3(1) of Sch 8, the Arbitrator calculated the worker’s entitlements up to 31 December 2012 under the legislation that applied up to that date and applied the weekly payments amendments to calculate the “compensation payable” from 1 January 2013. Once the weekly payments amendments apply, it is not possible to determine the quantum of weekly compensation payable until it is decided which entitlement period the worker comes within. That requires consideration of s 32A, which applies from 1 January 2013 and refers to weekly payments paid or payable [50].

16. If the appellant was correct in her submission that the entitlement periods do not commence to run until 1 January 2013, then the worker’s weekly compensation from that date would be calculated under s 36, that is, under the first entitlement period, not under s 37, which applies to the second entitlement period [52].

17. Clause 3(1) of Sch 8 states that the transitional arrangements also apply from 1 January 2013. Clause 9(4) is part of the transitional arrangements. Clause 9(4) is in clear terms and applies in the present matter. The combined effect of s 32A and cl 9(4) is that the entitlement periods commence at the time when weekly compensation has been paid or is payable and includes periods before the commencement of the amendments, that is, in this case, before 1 January 2013 [53].

18. If the conclusion that cl 9(4) of Sch 6 applies to the worker was wrong, and the correct view was that it only applies to existing recipients, that made no difference to the outcome. That is because there is a distinction between the calculation of the quantum of weekly “compensation payable” (which is dealt with, in this case, in ss 36 and 37) and the calculation of when the entitlement periods commence to run [54].

19. The appellant submitted that cl 3(1) of Sch 8 does for ss 36 and 37 the same as cl 4 of Sch 8 does for s 39. That submission was not accepted. Clause 3(1) of Sch 8 merely states that the weekly payments amendments do not apply to the “compensation payable”. It does not deal with the commencement of the entitlement periods. It is directed to ensuring that, for claims made before 1 October 2012, the weekly payments amendments and the transitional arrangements do not apply to the “compensation payable” in respect of the injury until 1 January 2013. The Arbitrator did not apply ss 36 or 37 to calculate the “compensation payable”, until 1 January 2013 [61].

20. Similarly, the Arbitrator did not apply s 32A until 1 January 2013. However, without a clause like cl 4 of Sch 8 to deal with the commencement of the first and second entitlement periods in ss 36 and 37, once s 32A applied, it applied according to its terms. Therefore, for claimants in the worker’s circumstances, the first entitlement period will start from the date on which weekly compensation is paid or payable [62].

Conclusion

21. The weekly payments amendments apply to workers in the worker’s circumstances from 1 January 2013. That is what the Arbitrator did and that approach disclosed no error. The worker’s “accrued rights” were not affected. She received weekly compensation under the 1987 Act, unamended, up to 31 December 2012 and under the weekly payments amendments after that date.

(a) making an award in respect of weekly payments beyond 31 December 2012, under the 1987 Act, as it stood prior to the passage of  the Workers Compensation Legislation Amendment Act 2012 (the amending Act);

(b) failing to consider the operation of the amending Act upon the facts found;

(c) failing to seek submissions from the parties concerning “[Ms Sok’s] entitlement to weekly payments after 31 December 2012”;

(d) finding that Ms Sok received relevant injury arising out of or in the course of her employment with Inghams;

(e) finding that Ms Sok was totally incapacitated as a result of relevant injury;

(f) finding as to apportionment of liability as between Integrated and Inghams, and

(g) failing to find that Ms Sok received injury “by way of a disease pursuant to s 4(b)(i) and (ii) and in failing to find that the appellant was not the last employer who employed the first respondent, in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of such disease, pursuant to s 16(1)(b)”.

Held: The Arbitrator’s determination was revoked in part and an order was made concerning weekly payments from 1 January 2013. 

Submissions, discussion and findings

1. The Arbitrator’s finding that the worker received injury arising out of or in the course of employment with Inghams was challenged [46].The Arbitrator’s Reasons demonstrated that her conclusion concerning the disputed finding of injury was founded upon the opinions as expressed by Dr Holman, Dr Chau, Dr Houston and Dr New. Those expert medical witnesses each provided sufficient evidence to permit the conclusion reached by the Arbitrator, and the reasons for her conclusion had been plainly stated. No factual error had been established [50].

2. Having regard to the Arbitrator’s finding concerning repeated traumata, which constituted a finding of injury in terms of s 4(a), Inghams’ submission that the Arbitrator failed to address the question of injury, was erroneous and was rejected [51].

3. The criticism made of the medical evidence relied upon by the Arbitrator was rejected. That criticism went to the weight of that evidence and, whilst such argument may be relevant to a review of the Arbitrator’s determination of factual matters, such argument had little or no force in circumstances where the present task on appeal was to determine the commission or otherwise of relevant factual error [52].

4. The Arbitrator’s finding of total incapacity was challenged. It was suggested that it was “not open to the Arbitrator to find that [Ms Sok] became incapacitated some seven years after leaving the employ of [Inghams]” [53].

5. Inghams challenged the finding made by the Arbitrator that there was a causal nexus, in part, between the incapacity as found and the work performed at Inghams. Nothing raised by the appellant addressed the question of causal nexus between each of the injuries, as found, and the total incapacity determined by the Arbitrator [55].

6. The Arbitrator’s finding that incapacity suffered by Ms Sok was the result of injury both with Integrated and Inghams was open to her and the reasons stated by her for that conclusion had been plainly and sufficiently expressed. That reasoning related to both the question of causal nexus between injury received whilst employed by Inghams and incapacity, and the question of apportionment. For the reasons expressed, Inghams’ argument that there should be no apportionment against it or that there should be “only de minimis apportionment of liability” was rejected [56].

7. It was submitted that the Arbitrator erred in failing to find that “any [injury whilst in the employ of Inghams] was a temporary aggravation of injury suffered with [Integrated]”. No argument was advanced other than a statement that reliance was placed upon earlier submissions. Those submissions were rejected and therefore this ground was also rejected [57].

8. The Arbitrator’s finding that injury whilst employed by Inghams had resulted in “further pathology in [Ms Sok’s] lumbar spine” and that operative treatment was reasonably necessary as a result of that injury was challenged. The Arbitrator addressed the totality of the evidence. She sufficiently expressed her reasons for the acceptance of Ms Sok’s evidence concerning the history of symptoms experienced whilst working with Inghams, and that of the expert medical witnesses whose opinions inculpate that work as being, in part, causative of the need for the surgery in question. This ground was rejected [58].

9. It was also submitted that the Arbitrator erred in failing to find that Ms Sok suffered injury by way of a disease (s 4(b)(i)(ii)) and further in failing to find that Inghams was not the last employer who employed Ms Sok in relevant employment [59]. Following consideration of relevant authority and the expert medical evidence, the Arbitrator found that Ms Sok had not contracted a disease, expressed by her as being one of “gradual onset”, within the meaning of s 4(b)(i). The Arbitrator also found that Ms Sok’s injury did not consist in the aggravation, acceleration, exacerbation or deterioration of a disease: s 4(b)(ii) [60].

10. The Arbitrator’s conclusion that the disease provisions had no relevance on the present facts was supported by the evidence; her reasons for that conclusion were plainly stated and no relevant error was made out. It was thus unnecessary to address argument that Inghams was not the last relevant employer [61].

The appellants’ challenge to the Arbitrator’s award of weekly compensation

11. Both Integrated and Inghams challenged the Arbitrator’s order made in respect of weekly payments, from 1 January 2013. It was put that the Arbitrator had erred in law in purporting to make such award pursuant to s 37 of the 1987 Act in its terms before its repeal effected by the amending Act. Counsel for Ms Sok conceded at the hearing of the appeal that such error had been made [62].

12. It was the appellants’ fundamental contention that the amendments to the provisions of the 1987 Act that regulate entitlement to weekly compensation and the manner of its calculation had the consequence that the Commission no longer has jurisdiction to examine, hear and determine matters concerning entitlement to and quantification of weekly compensation [65].

Was the decision of the Arbitrator affected by relevant error?

13. It was clear that the continuing award entered by the Arbitrator made provision for weekly payments calculated upon the basis of her findings of total incapacity and that the quantum of such payments were determined by her by reference to the provisions of Div 2 of Pt 3 of the 1987 Act as it stood before the amendments. On the relevant facts, in particular the fact as agreed, that Ms Sok was not at relevant times an existing recipient of payments, her entitlement from 1 January 2013 required determination in accordance with the new scheme established by the amending Act. The Arbitrator’s entry of an award beyond 31 December 2012 pursuant to the repealed provisions was made in error and her decision, plainly, had been relevantly affected. The outcome of this appeal, in particular the nature of appropriate orders to be made following determination of such error, required determination of the correctness, or otherwise, of the appellants’ submissions suggesting an absence of jurisdiction in the Commission to make any order concerning payment of weekly benefits beyond 31 December 2012 [67].

14. It was asserted that s 33 had the effect that it is “mandatory” that employers pay compensation in circumstances where the worker is totally or partially incapacitated as a result of injury. Once a worker’s incapacity has been “established”, there is “no question as to whether” an employer should or should not pay compensation [69].

15. It followed, it was argued, that the only question before the Commission under s 33 was the existence and extent (total or partial) of Ms Sok’s incapacity. The “amendments by express words, have stripped [the Commission] of its former jurisdiction to determine this [sic, these] question [sic, questions]”. It was put that “there is nothing remaining for [the Commission] to determine under s 33 post 1 October 2012” [70].

16. In conclusion, the appellants argued that, whilst the relevant transitional provisions “may provide for the extension of weekly compensation until 1 January 2013”, there was “no transitional provision providing for the extension of the finding of incapacity beyond 30 September 2012. The question of incapacity post 1 October 2012 is solely for the insurer, to be assessed pursuant to the new ss 37 and 38 of the 1987 Act”. During argument it was put that such assessment was to be made by an insurer in accordance with the amended scheme and that only an insurer may make a work capacity decision: s 43. The Commission, it was put, had no jurisdiction to make such a decision [71].

Discussion

17. It may be seen that the legislature, when prescribing the nature and extent of the Commission’s jurisdiction, adopted the broadest of terms. Subject to the Act (which must be read as including both the 1987 Act and 1998 Act (the Acts): s 2A(2) of the 1987 Act), the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under the Acts: s 105(1) [75].

18. The jurisdiction granted may be curtailed by statutory provision and such curtailment is found in the terms of s 105 itself, as well as in numerous provisions of the Acts (viz s 65(3) of the 1987 Act and ss 43(3) and 44(5) of the 1998 Act). Such curtailment of, or limitation to, the Commission’s jurisdiction has thus been effected by express statutory provision [76].

19. Ms Sok was at the time of the Arbitrator’s determination claiming weekly compensation, from 1 January 2013 under s 37 in its amended form [78]. The appellants’ submissions that the Commission had, by reason of the passage of the amending Act and relevant transitional provisions, been deprived of its jurisdiction to determine the dispute which Ms Sok has brought before it was rejected [79].

20. The appellants’ challenge was founded upon suggested “express” provision, or “inference”, that Parliament has curtailed the Commission’s former jurisdiction to determine the dispute concerning the rate of payments beyond 31 December 2012. Such meaning or inference was not found to be drawn from the terms of the amending Act. It cannot be said that such withdrawal of jurisdiction appears “clearly and unmistakably” from the terms of the amendment. It cannot be said that such “repeal, alteration or derogation” of jurisdiction appears from the terms of the amending Act “expressly or by necessary intendment” (see discussion in Shergold v Tanner [2002] HCA 19; 209 CLR 126 at 136-137) [80].

21. Notwithstanding the profound changes introduced by the amending Act to the methods of determining entitlement to, and the rate of weekly payments, and the role of insurers in determining such matters free of any challenge before the Commission, the scheme relevant to the assessment of such rate to which Ms Sok is entitled post 31 December 2012 does not have the effect, either expressly as was suggested in argument, nor impliedly, that the Commission has no jurisdiction to determine such rate. That is so, in part, given the continuation of the relevance of the statutory concept of pre-injury “average weekly earnings” as found in ss 35 and 37 [84].

22. It may be seen that, in the absence of a work capacity assessment having been conducted, and given that no work capacity decision had been made, there was no obstacle presented by the terms of s 43(3) or s 44(5) to the Commission determining Ms Sok’s entitlement to weekly payments and the rate of such payments [82]. It followed that the rate of weekly payments to which Ms Sok was entitled must be determined by reference to s 37 [86].

23. Having regard to the Arbitrator’s finding concerning total incapacity, the fact that Dr New had advised the need for spinal surgery and having regard to the evidence generally, it was concluded that Ms Sok was not able to return to her pre-injury employment nor was she able to return to work in suitable employment and thus had no current work capacity. In so concluding, the definition of “suitable employment” which appears in s 32A was considered. It may be seen that, having regard to the terms of that definition, the concepts of “no current work capacity” and “total incapacity”, as that latter term is understood in the light of relevant authority, may not in all circumstances be equivalent in meaning [88].

(a) whether Mr Sisko had suffered a psychological injury arising out of or in the course of his employment;

(b) if Mr Sisko suffered a psychological injury, was his employment a substantial contributing factor to that injury;

(c) if Mr Sisko suffered a psychological injury, was the injury wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to performance appraisal and discipline, and

(d) the extent of any dependency of Mr Sisko’s wife.

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

(a) in “finding an absence of drug-dependence prior to 21 May 2009”;

(b) in “improper use of Dr Pai opinion evidence”;

(c) in “regard to the proposition that Dr Snowdon was in agreement with other psychiatrists”, and

(d) “[u]nder Sec 9A”.

Drug dependence

1. The appellant submitted that the evidence that Mr Sisko suffered from a narcotic and benzodiazepine dependence prior to 21 May 2009 was overwhelming. It was said that the Arbitrator erred in regarding the Shellharbour Hospital records as “other than persuasive” [82].

2. The appellant submitted that the Arbitrator “did not deal with the record which Dr Snowdon regarded as indicating what the worker was at the relevant time, ‘a chronic user’” [84].

3. In dealing with the question of whether there was a pre-existing use of Oxycontin, the Arbitrator allegedly ignored the “concession” made by Mr Sisko to Dr Pai, his treating psychiatrist, and recorded by the doctor in his report of 5 November 2010. Dr Pai seemed to have no difficulty in accepting that, during the time of Mr Sisko’s admission to Shellharbour Hospital, “he had features of opioid withdrawal in the context of Oxycontin” and went on to note that Mr Sisko had “been using them in the context of ‘self medicating’ them to relieve [his] ‘pain’ of psychological nature in order to find relief from his job related stress” [85].

4. This was alleged to be entirely consistent with Mr Sisko’s account to Dr Sinclair on 25 May 2009 (at Shellharbour Hospital) that over the three years prior to his admission “when I was under a lot of morphine, I was normal, I coped with the yapping, yapping, yapping” [86].

5. These submissions were not accepted.

6. The Arbitrator made several additional findings relevant to her conclusion that Mr Sisko had received an injury in the course of his employment with Woolworths [97]. First, she noted that, though Mr Sisko had performance issues at the Riverwood store, when he was trying to assist his wife after her injury, there was no history of a psychological injury or symptoms prior to his commencement at the Shellharbour store. To the extent that the Arbitrator was referring to psychological symptoms immediately before the commencement at the Shellharbour store, this finding was correct and had not been challenged. It had not been argued that Mr Sisko’s symptoms of depression in 2001 or 2007 were of any particular importance in the current claim [98].

7. Second, the Arbitrator said that there was no evidence that Mr Sisko received psychological treatment for some years prior to 21 May 2009. His medical case indicated that he developed symptoms in response to issues that arose at the Shellharbour store, being a heavy workload, lack of assistance and support, and treatment by management, which was aggressive and involved abusive language. This finding was open on the evidence and disclosed no error [99].

8. Third, the Arbitrator observed that Mr Sisko’s treating practitioners had diagnosed him as suffering from Major Depression with melancholic features. She said that Dr Snowdon agreed with that diagnosis, though he added a further diagnosis of anxiety relating to his diagnosis of narcotic and benzodiazepine dependence. She said that Dr Snowdon based his diagnosis on the notes at Shellharbour Hospital taken on 22 May 2009 and there was ample evidence that, at that time, Mr Sisko was still under the influence of the medication on which he had attempted to overdose. These observations were correct [100].

9. Fourth, the Arbitrator said that Dr Snowdon gave no reasons or explanation for why the medication on which Mr Sisko overdosed would behave as a truth drug, as he asserted. She said that the opinion of Dr Gillies, Mr Sisko’s treating psychologist, was that the medication would cause a loss of cogent thought process, making his story (in hospital) unreliable. She added that the evidence of Mr Sisko and his wife (which she accepted) was that he was heavily medicated (in hospital) and unable to communicate or recall the events of the first few days following the overdose [101].

10. The Arbitrator said that Dr Snowdon noted that the drugs on which Mr Sisko overdosed can cause amnesia, and that was consistent with the evidence from Mr and Mrs Sisko about Mr Sisko’s condition in the days following the overdose. Taking these factors into account, the Arbitrator said that the opinion of Dr Gillies was more plausible than that of Dr Snowdon and she did not accept Dr Snowdon’s comments concerning the “truth drug” effect. These findings were open on the evidence and disclosed no error [102].

11. Noting the history recorded in the hospital notes by T Koning and Dr Sinclair, namely, that Mr Sisko used his wife’s drugs for three years and that he was bullied and harassed at Riverwood and Shellharbour stores, the Arbitrator found the opinions of the treating psychologist (Dr Gillies), treating psychiatrist (Dr Pai) and the treating general practitioner (Dr Daya) more persuasive than that of Dr Snowdon and the contents of the hospital records [103]. Her reasons for that finding were that those doctors had the benefit of long-term treatment and observation of Mr Sisko and were adamant that they saw no signs of long-term drug use or later withdrawal. These reasons were sound and were open on the evidence [104].

12. Finally, the Arbitrator concluded that Mr Sisko did not suffer from narcotic and benzodiazepine dependence and she did not accept Dr Snowdon’s diagnosis of an anxiety condition caused by such a dependency. That conclusion was open and disclosed no error [105].

13. The Arbitrator did not err in finding the Shellharbour Hospital records as “other than persuasive” [106]. The Arbitrator was not “obliged” to find that the assessment of Mr Sisko’s cognition and intellectual functioning made on 22 May 2009 was “flawed”. She was obliged to consider and deal with the issues presented by the parties. Counsel for Woolworths at the arbitration made no submission about the hospital entry relied on by the appellant on appeal (relating to Mr Sisko’s cognition) and it is not an error for an Arbitrator not to deal with an issue never put (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111) [107].

14. It was open to the Arbitrator to accept the evidence from Mr and Mrs Sisko, that they denied that Mr Sisko had used his wife’s medication, noting that it was kept in a locked safe, and denied that he had ever abused narcotics. That was especially so in light of an absence of a reference to dependence on narcotics or benzodiazepines in Dr Daya’s extensive clinical notes, something to which the Arbitrator made express reference [110].

15. The evidence from Dr Gillies, which the Arbitrator found particularly persuasive, together with the other evidence noted above, provided a sound basis for the Arbitrator’s conclusion that, contrary to Dr Snowdon’s opinion, Mr Sisko did not suffer from narcotic and benzodiazepine dependence. In other words, having regard to all the evidence, it was open to the Arbitrator to prefer the opinion of Dr Gillies to that of Dr Snowdon [122].

16. The submission that the Arbitrator erred in not dealing with the “record” that Dr Snowdon regarded as indicating that Mr Sisko was “a chronic user” was based on the false assumption that the Arbitrator had to accept the evidence in the hospital records as accurate. The accuracy of those records was disputed [123].

17. The Arbitrator dealt with that dispute, namely, by indicating, for reasons given, a preference for the evidence from Mr and Mrs Sisko, supported by the evidence from Dr Daya of an absence of drug dependence and by the evidence from Dr Gillies. Mr Sisko was a regular user of Tramal, which had been prescribed by Dr Daya. That use did not justify the conclusion that he had been abusing narcotics. Other than the hospital notes, and the use of benzodiazepines on 21 May 2009, there was no evidence of benzodiazepine abuse [124].

18. The submission that the Arbitrator ignored the “concession” made by Mr Sisko to Dr Pai was rejected. Leaving aside that this submission was not made at the arbitration, and cannot be used to support a finding of error by the Arbitrator, the submission was based on the false assumption that Mr Sisko made the “concession” alleged. He did not. It ignored Dr Pai’s conclusion on the drug use issue [125].

19. When Dr Pai referred to Mr Sisko using opioids “in the context of ‘self medicating’ them to relieve his ‘pain’ of psychological nature”, he was referring to the entry in the hospital records to that effect. To suggest that the doctor was recording a “concession” by Mr Sisko was an extraordinary misrepresentation of the evidence. Mr Sisko consistently maintained that he did not self-medicate with his wife’s medication and her evidence corroborated that assertion. It was patently obvious that he made no “concession” and the submission that he did was incorrect and misleading [127].

20. In summary, as the Arbitrator recorded, Dr Pai’s evidence was that the diagnosis of “substance use disorder” was unlikely. This evidence was consistent with the evidence from Dr Gillies and supported Mr Sisko’s denial of any substance abuse prior to 21 May 2009. It was evidence the Arbitrator was entitled to accept [131].

21. A consideration of the relevant evidence, and the submissions put by the appellant on appeal, did not establish that the Arbitrator’s conclusion that Mr Sisko did not suffer from a narcotic and benzodiazepine dependence was “glaringly improbable” or “contrary to the compelling inferences”. The Arbitrator’s conclusion was open on the evidence and the appellant had not supported its challenge to it with any reasoned argument or analysis of the relevant evidence. On the contrary, the appellant misrepresented Dr Pai’s evidence and completely ignored the evidence from Dr Gillies, both of whom provided strong support for the Arbitrator’s conclusion [135].

22. If that conclusion was wrong, and Mr Sisko was dependent on narcotics and benzodiazepines in the period up to May 2009, the same conclusion reached by the Arbitrator followed and Mr Sisko was entitled to succeed with his claim. In other words, it made no difference to the outcome [136].

Dr Pai’s evidence 

23. The appellant referred to Pt 15 r 15.2 of the 2011 Rules and submitted that Dr Pai “expressly disavowed the provision of opinion evidence”. This was based on Dr Pai’s statement that he had:

established a therapeutic alliance over time with [Mr Sisko] and I acknowledge the resultant bias, in spite of my neutrality, in compiling this report. Hence I would like to treat this as a comprehensive treating doctors [sic] report and by no means an alternative to a comprehensive independent medico legal report. (emphasis added) [137]

24. It was submitted that the Arbitrator fell into error in accepting Dr Pai’s evidence [140]. This ground suggested that the Arbitrator erred in making any use of the doctor’s evidence. Such a submission was untenable and was rejected. Once evidence is admitted in proceedings before the Commission, it may be considered in the determination of the issues in dispute (Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (Sutton)) [142]. The Arbitrator did not err in accepting Dr Pai’s evidence.

25. Dr Pai set out the history he took, his findings on examination, and, after referring to the Shellharbour Hospital records, the statements from Mr and Mrs Sisko, and the evidence from Dr Snowdon, he set out his opinion. That opinion was based on his knowledge and experience as a consultant psychiatrist and a Fellow of the Royal Australian and New Zealand College of Psychiatrists. It was logical and probative and the Arbitrator was entitled to accept it [145].

26. Dr Pai’s statement that there may have been a bias as a result of having established a therapeutic alliance with Mr Sisko was no more than an acknowledgment that, in spite of his neutrality, he was Mr Sisko’s treating specialist and, as such, had developed a therapeutic association with Mr Sisko. That did not mean that acceptance of his evidence was “improper” (or erroneous), but it was a factor to be taken into account when assessing the evidence, depending on the submissions made about it [146].

27. The reference to Dr Pai’s non-compliance with the Expert Witness Code of Conduct was specious. That code applies (subject to exceptions) to proceedings in the courts listed in Sch 1 of the Uniform Civil Procedures Rules 2005 (NSW). As the Commission is not a court, and is not listed in Sch 1, the code does not apply to its proceedings [148]. Dr Pai’s reports complied with the requirements of Practice Direction No 3 and the contrary was never suggested at the arbitration [149].

28. Though the Commission is not bound by the rules of evidence (s 354(2) of the 1998 Act), it “is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material” (Sutton at [2]). As the treating psychiatrist, Dr Pai’s evidence was satisfactory, in a probative sense, and the Arbitrator was entitled to prefer it to Dr Snowdon’s evidence [150].

Dr Westmore’s evidence

29. The appellant submitted that, at least by implication, the Arbitrator accepted the evidence of Dr Westmore on causation. It submitted that, unlike Dr Snowdon, Dr Westmore based his opinion on what was clearly “serious misinformation stemming from [Mr Sisko]”. It was clear, the appellant submitted, that Mr Sisko did not reveal to Dr Westmore “that which is demonstrated by the chronology to be a sustained ingestion at high level of medication over ten years prior to [Mr Sisko’s] suicide attempt” [152].

30. In addition, it was argued that, had the Arbitrator not committed the error of concluding that Mr Sisko did not suffer the addiction Mr Sisko is recorded to have reported in the hospital records, there was a competing cause of Mr Sisko’s condition of which Dr Westmore had no indication [153].

31. The appellant relied on Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 (Hancock) at [82] in support of its submissions [154].

32. Exactly what weight (if any) the Arbitrator placed on Dr Westmore’s evidence was unclear. While the Arbitrator summarised that doctor’s evidence, the only reference to it in her “discussion and findings” was where she merely recorded that Dr Westmore said that all three psychiatrists who examined Mr Sisko, including Dr Snowdon, concurred that Mr Sisko suffered a significant depressive disorder with Major Depression caused by his employment [157]. It was difficult to see that Dr Westmore’s report played any part in her decision on injury and causation [158].

33. If Dr Westmore’s evidence played a role in the Arbitrator’s conclusion, having found that Mr Sisko did not suffer from narcotic and benzodiazepine dependence, and having rejected Dr Snowdon’s diagnosis of an anxiety condition caused by such dependence, the acceptance of Dr Westmore’s evidence involved no breach of the principles discussed in Hancock [159].

34. Dr Westmore acknowledged that there was a dispute about the accuracy of the hospital records, which was not for him to resolve. The Arbitrator resolved that dispute in favour of Mr Sisko and the challenge to that finding had failed. It was therefore not necessary for the Arbitrator to refer to the allegedly “blighted” history. It followed that Dr Westmore’s history provided a “fair climate” (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510) for the acceptance of his opinion and that it would have been open to the Arbitrator to accept his evidence, which was strongly supportive of Mr Sisko’s claim, had she chosen to do so [160].

Dr Snowdon’s evidence

35. The appellant submitted that the proposition that Dr Snowdon agreed with the other psychiatrists was inaccurate [163]. It was clear the factor that “grossly increased” in Mr Sisko’s “emotionality” was a non-work factor [164]. It was submitted that the Arbitrator ought to have made an assessment of Mr Sisko’s credibility [167].

36. There was no dispute that Dr Westmore and Dr Pai agreed that Mr Sisko suffered from Major Depression caused by his employment. The submission on appeal appeared to be that Dr Snowdon did not agree with that conclusion [171].

37. Dr Snowdon’s evidence was clear that he agreed Mr Sisko suffered from Major Depression [174]. He also agreed that Major Depression had been caused by Mr Sisko’s employment [176].

38. The submission by the appellant that the factor which “grossly increased” in Mr Sisko’s “emotionality” was a non-work factor was not developed with any reasoned analysis of the evidence and was rejected. To the extent that the “non-work factor” was narcotic and benzodiazepine dependence, the Arbitrator did not accept that Mr Sisko was so dependent and that finding was confirmed on appeal [179]. Dr Snowdon accepted Mr Sisko’s account that his depression was caused by his employment with Woolworths [180].

39. Even if, as Dr Snowdon suggested, Mr Sisko had a predisposition to depression and had an increase in “emotionality”, because of narcotic and benzodiazepine dependence, that did not assist Woolworths, who must take their employees as they find them (State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286) [184].

Section 9A

40 .The appellant submitted the Arbitrator “deprived herself of the opportunity to weigh the contribution of employment with the contribution of [Mr Sisko’s] opiate dependence, because she found against the proposition that there was any such dependence, falling into error in reaching that conclusion”. (Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75) [186].

41. It was alleged that the Arbitrator erroneously rejected the submission made at the arbitration that “Dr Snowdon’s views on causation should be taken into account as he is the only medical expert to have taken into account and accepted the history taken at Shellharbour Hospital”. Had she not made that error then, “it would clearly follow from the observations of Dr Snowdon cited above that any contribution by employment was minor” [187].

42. In breach of Practice Direction No 6, no error had been identified under this heading. The submissions involved an assumption that the Arbitrator erred in her finding that Mr Sisko did not suffer from narcotic and benzodiazepine dependence. No such error was made and this ground of appeal was without substance [188].

43. In any event, if the Arbitrator erred on the issue of narcotic and benzodiazepine dependence, that made no difference to the outcome. Even accepting the account recorded at Shellharbour Hospital, it was clear beyond doubt that Mr Sisko’s employment was not only a substantial contributing factor to his injury (Major Depression), it was the substantial contributing factor. Regardless of his “reservations”, Dr Snowdon conceded as much. On any objective view, Dr Snowdon supported Mr Sisko’s claim that his work with Woolworths caused his injury, namely, Major Depression [189].

44. It was only Mr Sisko’s anxiety symptoms that Dr Snowdon felt were not work related. To the extent that those symptoms resulted from the Major Depression, and Dr Westmore stated that “anxiety symptoms are very common in patients who are depressed”, they are compensable. In the alternative, to the extent that the anxiety symptoms resulted from narcotic and benzodiazepine dependence, and not from the Major Depression, if the hospital records are accepted as being accurate, that dependence resulted from stressful events at work [190].

45. Even if it were found that Mr Sisko was dependent on narcotics and benzodiazepines prior to 21 May 2009 that would not have prevented a finding in his favour [194].

Other matters

46. The award was amended by consent to correct the errors in the determination with respect to the award for weekly compensation from 19 November 2009 to 31 December 2012 (s 352) [195].

47. As the appeal was determined in favour of Mr Sisko, the quantum of his entitlement to weekly compensation from 1 January 2013 remained outstanding and was remitted for determination [197].