Issue 9: September 2013

Northern NSW Local Health Network v Heggie [2013] NSWCA 255

(a) events involving the same patient on the previous evening;

(b) the failure to inquire further before taking action;

(c) the dire consequences which attended the disciplinary action, and

(d) the absence of evidence of reasons of the general manager.

The Arbitrator’s determination was revoked and an award of weekly compensation and payment of medical expenses was made in favour of Mr Heggie.

The appellant appealed the decision of the Deputy President. The issues in dispute on appeal to the Court of Appeal were whether the Deputy President erred in law by:

(a) misdirecting himself as to matters necessary to be taken into account when determining reasonableness of disciplinary action taken by the appellant in consideration of s 11A of the 1987 Act, and

(b) conducting a review of factual findings in contravention of s 352(5) of the 1998 Act, in that he failed to identify any error of fact, law or discretion on the part of the Arbitrator.

Basten JA (Ward JA agreeing)

1. At least in relation to the consequences for the respondent worker, the Deputy President took into account material which arose after the date of the decision to suspend, and was in error in so doing. As Sackville AJA noted, it is possible that the Arbitrator also took into account subsequent events, but to the extent that he did so, it was a course favourable to the respondent worker, and thus not challenged on appeal [29].

2. The Deputy President placed weight on the subjective decision-making of the employer, rather than limiting his consideration, in the circumstances of the case, to an objective consideration of the reasonableness of the decision, based on information available at the time the decision was taken. That approach involved an error in point of law [30].

3. The Deputy President correctly identified the matters for determination as being limited to whether the decision of the Arbitrator was affected by "any error of fact, law or discretion" and to "the correction of any such error": s 352(5). No error of law was identified nor did any question arise as to the exercise of a discretion. The criticisms made by the Deputy President of the Arbitrator's reasons were restricted to questions of fact and, in particular, factors which he said should have been taken into account but were not. These matters did not constitute relevant "errors" for the purpose of s 352(5). That he may have taken a different view of some facts to that of the Arbitrator did not relevantly demonstrate "error" for the purposes of s 352(5). The Deputy President erred in taking an unduly expansive view of the scope of the appeal [31].

Sackville AJA (Basten and Ward JJA agreeing)

4. The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the 1987 Act:

(i) A broad view is to be taken of the expression "action with respect to discipline". It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.

(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.

(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.

(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.

(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.

(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.

(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact. [59]

5. The reasonableness of an employer's action for the purposes of s 11A(1) is to be determined by the facts that were known to the employer at the time or that could have been ascertained by reasonably diligent inquiries. The statutory language directs attention to whether the psychological injury was caused by reasonable disciplinary action taken or proposed to be taken by the employer. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action of any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline [61].

6. A test that assesses reasonableness by reference to facts that could not have been known at the time the critical step is taken invites an extensive factual inquiry potentially far removed from the fairness or integrity of the actual decision-making process. A fortiori, action with respect, for example, to the transfer, performance appraisal or retrenchment of workers may be perfectly reasonable when taken. Yet in the light of subsequent, unforeseeable developments the action might turn out to have been mistaken and therefore retrospectively vulnerable to being characterised as unreasonable [63].

7. Reports prepared or correspondence created after the event may shed light on the facts known to the employer at the time the action was taken or that could have been ascertained had reasonably diligent inquiries been undertaken [64].

An Error in Point of Law?

8. The error identified by the Deputy President was that the Arbitrator had failed to take into account a number of factual matters that he was bound to take into account on the question of reasonableness (Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505). None of the matters relied upon by the Deputy President was capable of demonstrating that the Arbitrator had erred in finding that the appellant's actions relating to discipline were reasonable [171].

9. Section 352(5) of the WIM Act imposed limits on the power of the Deputy President to interfere with the Arbitrator's decision. He was not empowered to overturn the decision if (relevantly) it was not affected by an error of fact. The Deputy President was aware of this limitation and expressed his conclusion by reference to what he considered to be the Arbitrator's failure to address "shortcomings" in the actions taken by the appellant. However, the Arbitrator either did take the matters identified by the Deputy President into account or was entitled, in the exercise of his evaluative judgment, to regard them as having little or no bearing on the question he had to determine: that is, whether the appellant had shown that its actions in suspending Mr Heggie on full pay and initiating an inquiry into the allegations against him were reasonable [179].

10. An error in "point of law" need not be a jurisdictional error. However, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, McHugh, Gummow and Hayne JJ observed that a jurisdictional error may be committed if the decision-maker asks the wrong question, ignores relevant material or relies on irrelevant material in a way that affects the exercise of power [180].

11. In this case, the Deputy President asked the correct question, namely whether the Arbitrator's decision, to suspend Mr Heggie on full pay and initiate an investigation was reasonable, was affected by an error of fact. But in answering that question he took into account material that could not demonstrate that the Arbitrator had erred and was therefore irrelevant. This was not merely a factual error by the Deputy President but one which led him to exceed the authority conferred on the Commission by s 352(1) and (5) of the 1998 Act. He therefore erred in point of law [181].

Facts:

Mr Paabo worked as a train driver. For the purpose of this claim, his employment was divided into three periods:

(a) between March 1960 and 30 June 1996, when he worked for the first respondent, State Rail Authority of New South Wales (SRA);

(b) between 1 July 1996 and 22 May 1998, when he worked for the second respondent, originally known as Freight Corporation (FreightCorp), but later known as Pacific National (NSW) Pty Ltd, and

(c) between February 2001 and February 2011, when he worked for National Rail Corporation Ltd (National Rail), which was later acquired by Asciano Ltd trading as Pacific National (Asciano). At all material times, National Rail was insured under the Commonwealth workers compensation scheme.

(a) by finding that the worker first became aware he had suffered an injury (hearing loss) on 16 March 2009;

(b) in the alternative, failing to find that the worker first became aware that he had suffered an injury when he submitted to an independent medio legal assessment and sought legal advice in 2011;

(c) by failing to find that the worker made a claim for compensation on 16 March 2009;

(d) by failing to find that any failure by the worker to claim within time, was occasioned by ignorance, mistake or other reasonable cause, and

(e) by failing to refer a claim for the provision of hearing aids pursuant to s 60(5).

Held: The appellant’s failure to make a claim within time was occasioned by ignorance of his rights and obligations.

Application to extend time to appeal

1. The appellant sought an order extending the time for making the appeal. The discretion to extend the time for the making of an appeal is governed by Pt 16 r 16.2(12) of the 2011 Rules.

2. Mr Dougall stated in an affidavit, that instructions to appeal were received from Mr Paabo on 19 April. Mr Dougall was on leave from 22 to 29 April. Counsel prepared the chronology and submissions and these were served on the respondents and forwarded to the Commission on 24 April. Upon returning from leave on 29 April, Mr Dougall noticed the formal documentation had not been forwarded to the Commission. A Form 9 was lodged 30 April, four days out of time. Neither Opposition raised compliance with s 352(4) as an issue.

3. Judge Keating considered whether strict compliance with the time limits would work an injustice and considered the factors set out by McHugh J in Gallo v Dawson [1990] [1990] HCA 30; 93 ALR 479. Although the requirements of s 352(4) were not complied with, the respondents were on notice within time of the intention to appeal and grounds and reasons relied upon. As neither respondent sought to argue any prejudice arising from the formal appeal being lodged out of time and for reasons outlined in the decision, the time for lodging an appeal was extended to 30 April 2013 [91]-[93].

When Mr Paabo became aware he had received an injury

4. The Arbitrator was correct to find that Mr Paabo was aware he had received an injury on 16 March 2009. That was the date of the letter from Ms Payne which stated he had received an injury/illness being industrial deafness which was contributed to by his employment [152].

5. Further, Mr Paabo acknowledged that, after seeing Dr Howison in 2009, Asciano agreed to pay for hearing aids which were provided to him. He said it was around this time that he became concerned that his hearing had deteriorated due his employment with National Rail. Thus he was aware he had received an injury [154].

When was the claim made?

6. At the arbitration, Mr Morgan submitted that Mr Paabo had not become aware of his injury until he sought legal advice in 2011. He submitted that Mr Paabo’s claim was submitted within six months of receiving that advice and was therefore in time. On appeal, however, he sought to advance an alternative argument [155].

7. He argued that, if it was accepted that Mr Paabo became aware that he had sustained an injury as found by the Arbitrator in March 2009, then the provisions of s 261(1) were satisfied because the correspondence of 16 March 2009 demonstrated that a claim had been made shortly prior to that date. As no such argument was put to the Arbitrator, the submission that the Arbitrator erred could not be sustained. An Arbitrator cannot fall into error by failing to deal with an issue that was never argued: Brambles Industries Ltd v Bell [2010] NSWCA 162. [156]

8. The claim made by Mr Paabo was not in evidence, however, given the terms of letter of 16 March 2009 from Ms Payne to Mr Paabo, the only reasonable inference available, was that it responded to a claim made under the SRC Act. Given that, by then, Mr Paabo had been employed by National Rail (and its successors in title), for some eight years, the claim probably concerned a claim for loss of hearing sustained during the course of his employment with that employer, which would have fallen for determination under the SRC Act, and is an entirely different claim to the claim the subject of these proceedings. This was consistent with the way in which Mr Raymond responded to the claim. It was also consistent with Mr Paabo abandoning the claim (and the AAT proceedings) when it became apparent that the impairment as assessed by Dr Howison was insufficient to satisfy the threshold of the lump sum compensation under the SRC Act. There was no evidence to support the submission that the claim made on or about March 2009 was a claim under the New South Wales legislation [157].

9. Mr Morgan’s submission that the claim made by Mr Paabo in March 2009 satisfied the provisions of s 261(3) of the 1998 Act because Mr Paabo was considered to have made a claim for compensation when he made “any claim for compensation” in respect of the injury concerned was rejected. No reasoned argument or authority was advanced. “Compensation” was defined in s 4 of the 1998 Act “means compensation under the Workers Compensation Acts and includes any monetary benefit under those Acts” [158].

10. The Arbitrator’s finding that a claim was not made on the respondent until 8 September 2011, which was outside the six months’ time limit prescribed by s 261(1) but within the time prescribed by s 261(4)(a) of the 1998 Act, was correct [160].

Can the failure to claim within time be excused?

11. In Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 (Gregson) Burke CCJ considered the meaning of “ignorance” under s 65(13) of the 1998 Act, which was in similar terms as s 261(4) of the 1998 Act. His Honour held:

the ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.

12. Gregson was applied in Westlake v Sydney Sympthony Orchestra Subscribers Committee [2009] NSWWCCPD 12 at [61]–[62], Irvin v LA Logistics Pty [2011] NSWWCCPD 23 and Inghams Enterprises v Jones [2012] NSWWCCPD 17 at [93].

13. Whilst the Arbitrator found that Mr Paabo indicated he had not received any legal advice in regard to his obligation to report injuries or when to report them, his finding that his statements were silent as to whether he was ignorant of his rights under the 1998 Act, or whether he lacked knowledge of the claims procedure and the time limits involved for making a claim for hearing loss, was contrary to the evidence [163].

14. Mr Paabo stated that it was not until he sought advice from his solicitor, Mr Dougall, following Dr Noyce’s assessment, that he became aware that he may be entitled to bring a claim either against the first respondent or the second respondent in respect of the further loss of hearing in the discrete period between 1992 and 1998. He said he was not aware at any stage prior to the receipt of that advice that he had suffered deterioration in his hearing due to his employment with either the first respondent or the second respondent between 1992 and 1998 [164].

15. That finding was not open on the evidence and was an error. Accordingly, the finding that Mr Paabo was unable to rely on the provisions of s 261(4)(a) of the 1998 Act must be revoked and re-determined [166].

16. Mr Paabo’s evidence about the state of his knowledge in or about February/March 2009 was consistent with the evidence in relation to the manner in which his earlier claims were dealt with. When he complained to SRA about his hearing, he was sent for hearing assessments. Following such assessments in 1984 and again in 1992 he was sent a letter in the mail regarding the outcome of the assessments and a cheque representing compensation for hearing losses sustained at that point. He did not seek or obtain legal advice on either of those occasions. Nor did he do so in 2009 [167].

17. The Arbitrator’s observation that Mr Paabo’s statements were silent as to why he did not seek legal advice following the hearing tests in 2001 and 2004, or after he was contacted by Asciano on or about 16 March 2009, was not to the point. The critical fact was that he was unaware of his rights and obligations under the legislation until he received advice from Mr Dougall in August 2011 [168].

18. Similarly, with respect to the claim in March 2009, the Judge noted that the correspondence at that time was between Pacific National and Mr Paabo. There was no evidence that he was at that time legally represented or that he had obtained legal advice. The response from Pacific National stated that Mr Paabo’s claim had been accepted and that his “entitlement to permanent impairment will be advised to you in a separate determination”. It made no reference to the statutory impairment threshold or any other impediment to the acceptance of his claim. It stated that liability had been accepted [169].

19. Mr Paabo’s unchallenged evidence that he was not aware of his right to bring a claim under the 1987 Act for the further loss of hearing relating to his employment during the discrete period between 1992 and 1998, until after he saw Dr Noyce and obtained advice from his solicitor was accepted. This occurred between 23 and 26 August 2011. It was not until late August 2011, that Mr Paabo became aware of his rights and obligations with respect to claims for compensation for hearing loss. It follows that, up to that point, Mr Paabo was “ignorant” of his rights and obligations deriving from the 1998 Act (Gregson) [171].

20. The Arbitrator’s finding that Mr Paabo could not rely on the provisions of s 261(4) was wrong. Mr Paabo had discharged the onus of proof that his failure to make his claim within six months of 16 March 2009 was occasioned by his ignorance of his rights and obligations under the 1987 Act. Therefore, in accordance with the provisions of s 261(4), as the claim was made within three years of Mr Paabo first becoming aware of his injury, his failure to make the claim within time was not a bar to recovery [172].

(a) finding that a claim forwarded by the worker’s solicitors by post on 18 June 2012 and received by the appellant on 19 June 2012 had been made on 18 June 2012;

(b) in failing to follow Watts v Vickers, Lim [1917] L.J.K.B. 177 (Watts);

(c) in considering the WorkCover Guidelines for Claiming Workers Compensation Benefits (the Guidelines), issued by the WorkCover Authority of NSW on 13 March 2012, the Arbitrator failed to have regard to the distinction contained within the Guidelines between a claim being served, a claim being received and a claim being made;

(d) in failing to have due regard to the relationship between the amending legislation and the Guidelines;

(e) in considering retrospectivity, the Arbitrator erred in applying the rule too broadly and in failing to have regard to its proper context;

(f) in considering the beneficial nature of the legislation as being relevant where the purpose of the amendment was to limit workers’ entitlements;

(g) in looking beyond Watts, and

(h) in failing to have regard to the Arbitrators’ decisions in Pietrobon v Alliance Marketing Corporation Pty Ltd [2013] NSWWCC 11 (Pietrobon) and Hobson v Port Waratah Coal Services Ltd [2013] NSWWCC 145 (Hobson).

Watts

1. The appellant submitted that the Arbitrator erred in not following Watts [28]. It was submitted that, though Watts is an English decision, and relates to different legislation, the principle is essentially the same and cannot properly be distinguished. In the absence of competing authority, it was submitted that the Commission should regard Watts as so persuasive as to be binding (Gaydon v Public Transport Commission of New South Wales [1976] 2 NSWLR 44 (Gaydon); Bassell v McGuiness [1982] 29 SASR 508 (Bassell)). It was added that, unless it is “convinced that the interpretation is plainly wrong” (Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 (Farah Constructions)) the Commission should consider itself bound by Watts [35].

2. The reliance on Gaydon and Bassell was misplaced as more recent High Court authority had superseded the statements in those cases: Cook v Cook [1986] HCA 73; (1986) 162 CLR 376. Farah Constructions provided the appellant with no assistance and did not support the proposition advanced, because it dealt with decisions by intermediate courts of appeal dealing with “uniform national legislation” [39].

3. The Arbitrator did not err in not following the observations by Warrington LJ in Watts as to when a claim is made. He was not bound to do so. Though the observations were a clear and direct statement of general principle, and therefore entitled to careful consideration, the case turned on the trial judge’s finding that the employer had received the letter of 29 December 1915 within the relevant six-month period for a claim for compensation to be made. Therefore, the statements relied on were obiter dicta and not binding, regardless of whether there was any subsequent Australian authority on the issue and regardless of the status of English Court of Appeal decisions in Australia [41].

4. In any event, the provision with which Watts was concerned was similar to s 261(1) of the 1998 Act. The appeal did not concern that section, but concerned cl 15 of the savings and transitional provisions in Sch 6 of the 1987 Act. That was a different question, in a substantially different statutory context, to the question considered in Watts [42].

The Guidelines

5. The appellant referred to cl 5 of Pt 2 of the Guidelines, and submitted that, at least in respect of claims for weekly payments and medical expenses, “that receipt is the minimum prerequisite before a claim can be regarded as having been made”. It was added that, given the expression used in cl 15 (“claim is made”), there was no basis to interpret a claim for lump sums differently [43] – [44].

6. Those submissions were not accepted. Clause 5 of Pt 2 expressly applies to claims for weekly compensation, not to claims for permanent impairment compensation. The Guidelines for claims for permanent compensation are in quite different terms and, contrary to the appellant’s submissions, there was no reason to suggest that cl 5 of Pt 2 applied to such claims, which are dealt with (in detail) in Pt 5 [45].

7. Part 5 of the Guidelines deals with the making of claims for lump sum compensation and its detailed provisions make no direct or indirect comment about when a claim has been “made” or how it is to be served [47].

Retrospectivity and statutory interpretation 

8. The appellant submitted that, in considering retrospectivity, the Arbitrator erred in “applying the rule to [sic] broadly and failed to have regard to the nature and context of the amendment in this case”. It said that the amendment was clearly expressed to be retroactive [48]. The appellant also submitted that the Arbitrator overlooked “that limitations, constraints and restrictions are fundamental to the legislation and the amending legislation has a specific purpose in that regard” [54].

9. It is undoubtedly true that legislation may impose limitations and constraints. However, if those limits are applied retrospectively, in a way that eliminates accrued rights, then clear language must be used (Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355; Buck v Comcare [1996] FCA 1485; 66 FCR 359; Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292; 74 NSWLR 257). The issue in the present case was when the limits and constraints imposed by cl 15 commenced. The appellant’s submissions did not address the Arbitrator’s reasoning and did not advance its position [55], [58]-[59].

10. The Arbitrator correctly observed that the Guidelines did not stipulate the time at which a worker’s claim was made, or provide a method by which the timing could be reckoned. He correctly said that a textual analysis of cl 15 did not elucidate whether a claim for compensation is made at the time a worker had complied with the Guidelines and sent the claim to the employer, or at the time the employer receives it. Nor did he think the ambiguity in the meaning of the clause was made clear from the context of the legislation [57].

11. The right to permanent impairment compensation accrues at the time of the injury (Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318; TNT Australia Pty Ltd v Horne (1995) 36 NSWLR 630; 11 NSWCCR 497; Speirs v Industrial Relations Commission (NSW) [2011] NSWCA 206, [2011] NSWCA 206; 81 NSWLR 348). Dealing with these authorities, Basten JA observed in Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 that it followed that a “right” to compensation arises “at the date of injury, although quantification of the amount payable depended on agreement or an award of the Commission” [60].

12. In hearing loss cases there will often be an issue as to when the injury was received. In Race v DTM Pty Ltd [2013] NSWWCC 238 (Race) it was argued that there was no injury until the worker gives notice of injury under s 17 of the 1987 Act.

13. It was wrong to treat s 15 or s 16 of the 1987 Act as creating liability for compensation (Race citing Crisp v Chapman [1994] NSWCA 73; 10 NSWCCR 492). Each of those sections assumes that an injury has occurred and each provides the means of determining when the injury is deemed to have happened, by whom compensation is payable, and other ancillary matters and that reasoning applies to s 17 [62].

14. The Arbitrator did not err in his approach to the retrospectivity issue or the question of statutory interpretation generally [65].

15. The legislature has replaced the requirement that a claim be made by service on the employer, and in some cases, on the insurer, (ss 92A, 66 – s 92A having been repealed and s 66 only applying to claims made before 1 January 2002) with a requirement that claims must be made “in accordance with the applicable requirements” of the Guidelines (s 260). With regard to claims for permanent impairment compensation, the applicable Guidelines do not expressly require service of the claim on the employer or insurer. That pointed strongly to an intention by Parliament to remove the need for service on the employer before it could be said that a worker had made a claim [66].

Beneficial legislation

16. The Arbitrator considered the beneficial nature of the 1987 and 1998 Acts. The appellant submitted that “the beneficial nature of the legislation is irrelevant in this context because it is the amending act that must be interpreted and that Act specifically limits entitlement” [67]-[69].

17. The principle that beneficial legislation should be given a liberal construction does not entitle the Commission to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164, citing IW v City of Perth [1997] HCA 30; 191 CLR 1). However, the established principle is that, where two constructions are possible, that which is favourable to the worker should be preferred (Wilson v Wilson’s Tile Works Pty Ltd [1960] HCA 63; 104 CLR). The interpretation “must be restrained within the confines of the actual language employed and what is fairly open on the words used” (Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622) [70].

18. While it was an overstatement to say that the clause had to be interpreted in a way that protects workers’ rights, the Arbitrator was entitled to have regard to the beneficial nature of the legislation. The Arbitrator was required to interpret cl 15 in its proper statutory context. That context includes the beneficial nature of the legislation overall, the history of the claims provisions in that legislation and that a right to permanent impairment compensation is a right that accrues at the time of the injury. Consistent with the authorities, he applied the accepted methods of statutory interpretation. Interpreting “made” as meaning the date on which the claim was posted was not an unreasonable or unnatural construction of the clause [71].

19. The Arbitrator’s general approach and conclusion, was open, within the confines of the language used in cl 15. If this was wrong, it made no difference to the outcome because, applying the accepted principles of statutory interpretation the Deputy President arrived at the same conclusion [72].

Pietrobon and Hobson

20. The appellant submitted that the Arbitrator should have followed Pietrobon and Hobson. In Pietrobon, the Arbitrator held, relying on s 76 of the Interpretation Act, that a claim for permanent impairment compensation posted to the employer on 18 June 2012 had not been duly made prior to 19 June 2012 and she struck out the Application to Resolve a Dispute [73].

21. However, as the Arbitrator in the present matter found, that section only applies where an Act or instrument requires a document to be served by post. As there is no provision in the legislation or the Guidelines that requires that a claim be “made” by post, the Arbitrator correctly concluded that s 76 does not apply [74].

22. The facts in Hobson were similar to the matter on appeal [75]. However, though parts of the legislation may be predicated on the assumption that the employer has received the claim that is not determinative of when, for the purposes of cl 15, a claim has been “made”. Nothing in Hobson undermined that conclusion [77].

23. The suggestion that there must be “mutuality” was unsupported by any reasoned argument. There is nothing in the text of cl 15, or the context of the legislation as a whole, to suggest there must be “mutuality ‘between the worker and employer’”, as the Arbitrator found in Hobson. It was untenable to suggest that a claim cannot be “made” unless and until certain steps have been taken by both sides, if that was what was suggested [78].

24. Dealing with Macrae v St Margaret’s Hospital [1999] NSWCA 381; (1999) 19 NSWCCR 1 (Macrae), on which the respondent relied, the Arbitrator in Hobson correctly observed that Macrae was not “directly on the point at issue”. However, he added that “the overall context of the consideration of the matter involved the assumption that a claim at the time had to be ‘received’ at a proper address in order to be duly made” and he did not “discern any intended change to that assumption since Macrae” [80].

25. Regrettably the Arbitrator in Hobson was not taken to the legislative history of s 92A and, while the “assumption” to which he referred may have been appropriate in Macrae, in light of the significant changes in the legislation since that decision, it was no longer appropriate [81].

26. In the context of cl 15, when read with the legislation as a whole, including the legislative history, the correct view was that the worker made his claim on the date it was posted, that is, on 18 June 2012, and that Hobson was incorrect [82].

Race 

27. The decision of Race, where the Senior Arbitrator held that the claim for permanent impairment compensation in that case was “made” when placed in the document exchange on 18 June 2012, though it was not received by the employer until 21 June 2012 was considered [84]-[85].

28. Whether a claim has been “made”, notwithstanding that some particulars may be outstanding, depends on the context in which that question arises. As held by Basten JA in Tan, s 260 clearly envisages that a claim may constitute a “claim” though it has not been made as required by the Guidelines [88].

29. There is no suggestion, in either the legislation or the Guidelines, that a claim has not been made if the claimant has not provided all relevant particulars. Each case will turn on its own facts and the nature of the alleged deficiency in the particulars. Given that s 281 does not define when a claim is made, a claim can be “made” even though some particulars may be outstanding. The purpose of ss 281 and 282 is to enable claims for permanent impairment compensation to be resolved expeditiously, fairly and without unnecessary expense. To that end, workers must provide “relevant particulars” about the claim. In the present matter, the worker’s solicitors provided those particulars in the letter of claim [89].

30. There is no legislative (or other) requirement that the worker ensure that the employer has received the claim before it can be said that the worker has “made” a claim. It may be that certain time limits (such as in s 281) do not commence to run until the claim is received, but that does not mean that the claim has not been made when it is posted [93].

31. The suggestion that the appellant did not contend for a “further requirement” was incorrect. The appellant was seeking an interpretation that requires workers to prove the employer “received” the claim before 19 June 2012, or that it was “communicated” to the employer prior to that date. Such an additional requirement is not justified by the legislation or the Guidelines [95].

32. In the context of cl 15, where certainty and precision are critical to deciding if a worker’s accrued rights have been removed, a construction that provides that certainty is preferable to one that will leave the issue to be determined by the uncertainties of the particular method of communication used [96].

33. The Senior Arbitrator was correct to note that the Act and Guidelines distinguish between the making of a claim, and its receipt by the employer. Notwithstanding that distinction, the legislature has not defined when a claim is “made”. In particular, it has not stated that a claim is made only when the employer has received it [99].

34. Clause 15 is concerned with the removal of an accrued right from a certain date, determined by reference to when the claim was made. An interpretation that gives certainty (the date of posting), rather than the uncertainties that are inherent in the date of “receipt” or “communication” is to be preferred [100].

Conclusion

35. It followed that the Arbitrator did not err in finding that the worker made his claim for permanent impairment compensation when his solicitor posted the letter of claim on 18 June 2012. This construction promotes certainty for the change to the new threshold in s 66 of the 1987 Act and avoids the potentially capricious result that would follow from the alternative method urged by the appellant. It was an interpretation that was fairly open on the words used, having regard to the inherent ambiguity of the clause. That was especially so having regard to the history of the legislation, in particular, the decision not to replace ss 92A(4) and 66(3) [101].

Facts:

(a) finding that Ms de Boer’s business was a “hobby”;

(b) finding that Ms de Boer had no earnings from the business;

(c) finding that Ms de Boer’s engagement in the business did not demonstrate any capacity for employment;

(d) accepting the opinions of doctors qualified as experts despite the inaccurate history taken by those doctors, and

(e) failing to consider an appropriate deduction, as defined by “E” in s 35(1) of the 1987 Act, as amended, and failing to apply the correct definition of “suitable employment” as set out in s 32A of the 1987 Act, as amended, when he determined Ms de Boer to have no current work capacity since 1 January 2013.

Fresh Evidence

1. The appellant sought to tender, as fresh evidence on appeal, two articles [36]. It was submitted that the articles were of significant probative value because they had implications for Ms de Boer’s credit, the finding of total incapacity, and the finding that the business is a “hobby”. Therefore, there would be a substantial injustice if they were not admitted on appeal [45].

2. It was concluded that, had the articles been available at the arbitration, there would not have been a high probability of a different outcome, at least so far as the claim up to 31 December 2012 was concerned, and there was no injustice if they were excluded on appeal [58], [117].

Ms de Boer’s earning capacity up to 31 December 2012

3. Whether a worker is totally incapacitated for work prior to 1 January 2013 requires consideration of the principles discussed in Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; (1996) 25 NSWCCR 206 (Lawarra) and followed in Moran Health Care Services v Woods [1997] NSWSC 147; 14 NSWCCR 499 (Woods) and O’Brien Glass Industries Pty Ltd v Bahmad [2001] NSWCA 224 (Bahmad).

4. It was submitted that Ms de Boer’s capacity was not merely nominal, but was significant. It was said she could do physical work, and had done it for three days’ per week, and could do marketing and administrative work. Those submissions were not accepted [75].

5. The submissions ignored Ms de Boer’s evidence that Ms Gilmour had to help her during the 2012 picking season because she (Ms de Boer) was “jittery, forgetful, easily confused and needed direction”. This evidence was not challenged in cross-examination and provided strong support for the Arbitrator’s conclusion on incapacity [76].

6. Ms de Boer was under no compulsion to get the work on the farm done. This was consistent with her comment that she tried not to put herself under pressure. It was difficult to see that such activities could be realistically translated into an employment situation where one has to work to set standards and deadlines [77].

7. The suggestion that Ms de Boer had saleable skills in marketing was untenable nonsense. The reference to her having been involved in marketing was when she lived in Sydney, when her father ran the farm, and she would try to “drum up business”. In response to a question about her current involvement in marketing, she said she got phone calls and took orders. That evidence did not demonstrate any saleable skills in marketing on the open labour market accessible to her [78].

8. Last, it was submitted that Ms de Boer had administrative skills. It was assumed that those skills were the skills involved in taking and filing orders. Such activities were conducted in the context of a modest farming business where Ms de Boer could set her own hours and work at her own pace, free from the rigours and demands of a normal work environment. That did not demonstrate any relevant capacity to earn on the open labour market accessible to her [79].

9. The appellant’s submissions were contrary to the medical evidence, which was unanimous that Ms de Boer was unfit for work. That included evidence from the treating general practitioner, treating psychologist, and qualified psychiatrists [80].

10. The submission that the opinion of Mr Anderson, her counsellor, that Ms de Boer was not fit for work was “flimsy” was not accepted. Mr Anderson’s evidence was in two parts: first, a general statement that Ms de Boer had not been fit for work since 27 March 2012 and, second, a specific statement that she was unfit to return to her old workplace. The specific reference to her old workplace did not diminish the breadth of the first statement [84]. His opinion was clearly based on his expertise as a psychologist, the history he took and his findings on examination [85].

11. The submission, made at the arbitration, that the report of Associate Professor Robertson, consultant psychiatrist, should be given very little weight because it was “really quite contradictory in all of the conclusions that it reaches” was surprising and was rejected. Associate Professor Robertson took a detailed history of the consequences of the psychological injury and the effect they had on Ms de Boer. Far from being “self-contradictory”, and far from supporting the appellant’s case, the Associate Professor’s evidence was unambiguously supportive of the Arbitrator’s conclusion on incapacity [94].

12. Though Dr Parsonage, consultant psychiatrist, referred to Ms de Boer’s diminished capacity to cope with stressful situations by reference to caring for patients, that did not diminish the probative value of his opinion that she was “unfit for work due to her anxiety”. The evidence from Dr Parsonage and Associate Professor Robertson provided strong support for the Arbitrator’s conclusion that Ms de Boer was totally unfit for work [104].

13. Moreover, as explained in Wilson, Woods and Bahmad, determining if a worker is totally incapacitated under the law as it existed prior to the amendments introduced by the 2012 amending Act is a practical exercise having regard to the realities of the labour market in which the worker lives. That she may have been able to do some limited activities in the artificial circumstances on her own farm does not establish an ability to earn on the open labour market, unless there is evidence that that kind of special work is available in the labour market accessible to her. There was no such evidence [105].

14. Dealing with the fresh evidence sought to be tendered on appeal, the Deputy President held that the first article did no more than suggest that, several weeks after the arbitration, Ms de Boer made representations in opposition to the construction of an antenna. This did not demonstrate any capacity for employment. To the extent that it was suggested that the article was relevant to Ms de Boer’s credit, it was never part of Ms de Boer’s case that she was house bound, or incapable of making representations of the kind made to the Council, and the article did not undermine her credit [108]. The article did not undermine Ms de Boer’s evidence of her capacity to engage in paid employment or advance the appellant’s position on the question of total incapacity [109].

15. That limes from the farm have been used on certain television cooking shows was completely irrelevant to Ms de Boer’s ability to earn. The second article did not suggest or imply that the limes came to be on those shows because of Ms de Boer’s efforts. It merely said that export agents told Ms de Boer where the limes go. When asked about marketing, she said that she got phone calls from people who were interested in the fruit, and that she took orders from those people. When it was put to her that she was responsible for taking orders and “running the orders through”, Ms de Boer said that the fruit was picked with Ms Gilmour, boxed and sent away. It was not accepted that the article demonstrated that, in 2012, Ms de Boer had a capacity to work in a marketing position [111].

16. Whether the farm is characterised as a “going concern” or as a hobby was of limited relevance to the determination of Ms de Boer’s capacity to earn in the labour market reasonably accessible to her. What was relevant was the value of Ms de Boer’s labour in the open labour market, not in her own protected environment on a small rural holding. Ms de Boer’s unchallenged evidence was that, in 2012, Ms Gilmour had to help her out during the picking season because she was jittery, forgetful, easily confused and needed direction. Such help would not be available in normal paid employment [112]. Having heard and seen Ms de Boer give oral evidence, it was open to the Arbitrator to accept that evidence (as he essentially did) and to find that those activities would have “no real saleability on the open labour market” [113].

17. That Ms de Boer hoped to export to Sainsbury’s and Tesco was merely a desire for the future. It was not an indication of her current work capacity. So too was Ms de Boer’s hope to expand with a line of bush tucker products for supermarkets [114].

18. The submission that the reference in the article to the harvest being between May and September demonstrated an inconsistency in Ms de Boer’s evidence was not accepted. Ms de Boer’s evidence was that the “main” time for picking was May and June. However, consistent with the article, Ms Gilmour’s evidence was that the harvest time was from May to September. The reference to the harvest time in the article added nothing to the evidence that was already before the Arbitrator [115].

19. Accepting that the “eye of the needle” test did not represent a correct approach to the concept of “total incapacity” up to 31 December 2012, and that it is a “practical exercise”, the Arbitrator’s conclusion that Ms de Boer was totally unfit up to 31 December 2012 was open on the evidence and, regardless of the articles, disclosed no error. The application to rely on fresh evidence was therefore refused [118].

Expert evidence

20. The Court of Appeal’s assessment of expert evidence in the Commission in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 was considered [125].

21. To the extent that the expert has based his or her opinion on assumed facts, those facts do not have to be the real facts, but only the facts asserted (Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [101]–[102]; [105]–[134] (Rich)). The asserted facts do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” and whether they provide a “fair climate” for the acceptance of the opinion (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510) [126].

22. In the present case, the medical experts each recorded a history of the circumstances that caused Ms de Boer’s injury, her personal and relevant medical background, his findings on examination, and his conclusions. Ms de Boer did not provide a misleading history about her activities after she stopped work: she was not asked about it. In the circumstances, the histories recorded provided a “fair climate” for the acceptance of the doctors’ evidence [127]. The Arbitrator did not err in accepting them [131].

23. In circumstances where the appellant was well aware of Ms de Boer’s involvement in the farm as early as 24 July 2012, and it (apparently) took no steps to seek Associate Professor Robertson’s opinion on the relevance of that involvement, it was not open to argue that it was prejudiced by the failure to refer to the farm activities [128].

24. Ms de Boer’s activities on the farm did not demonstrate a capacity for employment (having regard to Wilson, Woods and Bahmad) in the labour market reasonably accessible to her. It followed that the attack on the medical evidence, that the doctors were not aware of the activites on the farm demonstrated a capacity for employment and therefore their opinions were of no weight, was without merit [129].

Current work capacity

25. The Arbitrator did not refer to the definition of “no current work capacity” and “suitable employment” under s 32A, but merely treated the finding of total incapacity as if it was synonymous with the definition of “no current work capacity”. As those definitions make clear, the two concepts are quite different. While there will be many cases where a worker found to be totally incapacitated under the law as it stood before the amendments introduced by the 2012 amending Act will also have no current work capacity under the new provisions (see, for example, Inghams Enterprises Pty Ltd v Sok [2013] NSWWCCPD 39 at [88]), whether that is so requires a consideration of the evidence in light of the definitions of those phrases [143].

26. In determining Ms de Boer’s entitlement to weekly compensation from 1 January 2013, the Arbitrator failed to consider the amended legislation and, other than saying that Ms de Boer was “genuinely totally incapacitated and that [work on the farm] is exceptional work that would have no real saleability on the open labour market”, he failed to consider whether, by reference to the amended legislation, Ms de Boer had “no current work capacity” from 1 January 2013. As a result, he erred in his approach and this part of the claim had to be re-determined [144].

(a) finding that the worker injured her right hip on 23 February 2009;

(b) failing to give adequate, or any, reasons for finding that the worker suffered an injury to her right hip;

(c) making a finding that was against the evidence, and

(d) failing to give adequate, or any, reasons for the finding that the worker suffered a primary psychological injury in the course of her employment.

Held: The Arbitrator’s determination was confirmed. 

Fresh Evidence

1. The worker instructed new solicitors, after the arbitration. Those solicitors made an application to rely on clinical notes from Dr Robinson, the worker’s general practitioner, and a report from Dr Street, consultant psychiatrist, as fresh evidence on appeal. It was submitted that the clinical notes were not provided to and/or requested by the worker’s former solicitors and the report had not been provided by the appellant employer. It was further submitted that this evidence supported the respondent worker’s case and the appellant would not be prejudiced by its inclusion. The appellant opposed the application [21]-[26].

2. Whether there will be a substantial injustice if fresh evidence is excluded depends on the outcome of the appeal, without considering that evidence. As the appeal was without merit and the Arbitrator’s decision was confirmed, it followed that there was no injustice if the application was refused and that was the order made [31].

Hip Injury

3. The appellant submitted that Professor Ghabrial, orthopaedic and spinal surgeon, did not see the worker until more than two and a half years after the injury, and he was the first to take a history of an injury to the right hip. When faced with contrary evidence, the Arbitrator dismissed it, as it “concentrates on the coccyx” [32].

4. Professor Ghabrial’s evidence had to be read with the other evidence in the case. That evidence clearly indicated that the worker complained to Dr Robinson of her right sided symptoms, prior to attending on Professor Ghabrial, which undoubtedly included her hip [45]. It was open to the Arbitrator to accept Professor Ghabrial’s opinion, as it was consistent with the worker’s unchallenged evidence of having complained of hip pain to her work colleagues while on light duties [46].

5. The appellant submitted, it was assumed, that the Arbitrator failed to give “appropriate weight” to the bone scan, which had findings that were said to be contrary to Professor Ghabrial’s opinion that the worker suffered an injury to her right hip in the fall in February 2009 [48].

6. The bone scan report, which revealed right proximal ilio-tibial band syndrome, was consistent with, and supportive of, the worker’s case that she injured her right hip in the fall [49]-[50]. It was assumed that the submission related to the comment in the bone scan report that there was “[n]o scan evidence of active trochanteric bursitis associated with this syndrome”, which was inconsistent with Professor Ghabrial’s opinion that there was. While this point was not made at the arbitration and it was therefore not open to argue on appeal that an Arbitrator erred in not dealing with it (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 (Bell)), it was nevertheless dealt with by the Deputy President [53].

7. As Professor Ghabrial expressly commented on the bone scan, it was reasonable to assume that he was aware of the comment. Nevertheless, as the treating specialist, he was entitled to express his opinion, based on the history, his findings on examination and his clinical judgment, which no doubt took into account the benefit the worker received from the steroid injection to her right hip on 7 September 2011 [54]. The critical point was that the bone scan report provided corroboration of the worker’s evidence that she injured her hip in the fall [55].

8. The reference to Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang) to the issue of whether the worker suffered a s 4 injury to her right hip was not explained in the submissions. It was not an authority relied on at the arbitration and nothing in that decision advanced the appellant’s position on appeal [56].

9. The complaint that Professor Ghabrial failed to provide the basis for his conclusion and that, therefore, his reports did not satisfy Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita), was not a point argued at the arbitration and it was therefore not open to argue on appeal that the Arbitrator erred by not dealing with it (Bell) Nevertheless, the submission was considered and it was determined that it was without merit [57].

10. The Court of Appeal examined the application of Makita to proceedings in the Commission, in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399. Beazley JA (as her Honour then was) said there could be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. However, even in evidence-based jurisdictions, “that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report” [58].

11. Her Honour added that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests”. An expert’s reports must be read together, and with the other evidence tendered. That is because a deficiency in one part of the expert’s evidence “may be made good by other material, either in another report or in oral evidence” [59].

12. Experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports (Adler v Australian Securities and Investments Commission [2003] NSWCA 131; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; Australian Security and Investments Commission v Rich [2005] NSWCA 152) [62].

13. Professor Ghabrial’s history provided a “fair climate” for the acceptance of his opinion (Paric v John Holland (Constructions) Pty Ltd [[1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505) and his reports, when read together, provided the basis for his conclusion. His evidence complied with the principles governing expert evidence in the Commission and it was open to the Arbitrator to accept the Professor’s conclusions, along with the worker’s evidence, and to find that the worker suffered an injury to her right hip in the fall in February 2009 [64].

14. It was not accepted that the Arbitrator failed to give adequate reasons as to “why the clinical notes of [Professor] Ghabriel [sic] [were] accepted over those of Dr Robinson” [65]. It was open to the Arbitrator to accept Professor Ghabrial’s evidence about the hip injury notwithstanding that Dr Robinson had not recorded a history of hip symptoms. Consistent with the principles in Mason v Demasi [2009] NSWCA 227, the Arbitrator approached the inconsistency between Dr Robinson’s evidence and the worker’s evidence with caution and gave appropriate reasons for accepting the worker’s evidence. His approach and conclusion were open and disclosed no error [68].

15. The complaint that the Arbitrator “failed to explain how there is a causal link between the right hip not complained of for more than two years and the work injury on 23 February 2009” was incorrect. The Arbitrator considered the evidence and accepted the worker’s evidence. That evidence was that she complained of hip pain to her supervisor, her co-workers and Dr Robinson. It was open to the Arbitrator to accept that evidence [72].

16. The accepted evidence from the worker was that the pain in her right hip was a “constant ache or dull pain”, whereas the pain in her back and coccyx was “sharp and severe”. This was consistent with the Arbitrator’s finding that it (the hip pain) was of “secondary importance” (though still important enough that she mentioned it to Dr Robinson and to her supervisor and co-workers) until the pain worsened (in 2010) and the bone scan revealed pathology in the hip and “confirmed the injury”. This conclusion was open to the Arbitrator, especially in light of the worker’s further evidence that she had no hip pain before the fall [74].

17. The assertion that the Arbitrator did not give adequate reasons why the reports of Professor Ghabrial were “sufficient for him to find that there was a causal link between the work injury and the alleged hip injury” was untenable [75]. The Arbitrator concluded that he was satisfied the worker had discharged the onus of proof and that she injured her right hip in the fall on 23 February 2009 [76]. The Arbitrator’s reasons were clearly adequate to explain the grounds that led him to his conclusions concerning the issues in dispute (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271) [80].

18. The submission that the Arbitrator erred in not accepting the evidence from Dr Pillemer, orthopaedic surgeon, was without merit [81]. On appeal, it was submitted that Dr Pillemer took a history of no discomfort in the hip area and the Arbitrator did not give adequate reasons for rejecting the doctor’s conclusion [83]. The obligation to give reasons is related to and dependent upon the submissions presented at the hearing (Bell). Given the fleeting reference the appellant made at the arbitration to Dr Pillemer’s evidence, it was hardly surprising that the Arbitrator did not deal with it in greater detail. The Arbitrator was required to assess the whole of the evidence. That evidence included the evidence from Professor Ghabrial and the worker which the Arbitrator accepted. The acceptance of that evidence meant that Dr Pillemer’s conclusion carried little weight on the injury issue and no further analysis was required [86].

Psychological injury 

19. Whether a psychological injury is a primary or secondary psychological injury is important because no permanent impairment compensation is payable in respect of permanent impairment that results from a secondary psychological injury (s 65A(1) of the 1987 Act). A secondary psychological injury is defined in s 65A(5) to mean “a psychological injury to the extent that it arises as a consequence of, or secondary to, physical injury”. A primary psychological injury is defined to mean a psychological injury that is not a secondary psychological injury [2].

20. The Arbitrator correctly noted that the two issues for him to determine were what was the worker’s psychological condition and was that condition a primary psychological injury or a secondary psychological injury [100].

21. The question of whether a worker has suffered a primary psychological injury or a secondary psychological injury depends on an assessment of all the evidence, lay and expert. That a doctor does not address the ultimate legal question to be decided is not fatal. The judge (or Arbitrator) must decide such a question on all the evidence, and lay evidence may carry the day over an opposing expert (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225). In any event, in the present case, Dr Street’s evidence was consistent with the worker having suffered a primary psychological injury [108].

22. The Arbitrator said that Dr Street’s reports, when read together, created a “picture that connects the symptoms of the condition to the incident of injury” because all of the feelings that Dr Street recorded related to fear arising from the accident, which was cued by walking on uneven ground and the possibility of falling again [109].

23. The Arbitrator’s statement that “[i]t’s about the fall” was well justified by the evidence and may well have been expressed “it is all about the fall”. That was the only logical conclusion from Dr Street’s evidence where he said that the worker had significant PTSD and Major Depression “from the work place accident”. That was a clear and unequivocal reference to the trauma of the fall itself [111].

24. The Arbitrator’s statements were open on the evidence and properly explained why he accepted Dr Street’s evidence and did not accept Dr Vickery’s evidence [114].

25. The submission that Dr Robinson’s notes did not provide the Arbitrator “with significant nexus to find that [the] psychiatric injury was a primary injury” was misguided. The Arbitrator did not rely on Dr Robinson’s notes to support his finding. Dealing with the absence of a reference to a psychological injury in Dr Robinson’s notes, the Arbitrator said that the notes could not “be expected to record everything”. He added that the worker’s evidence, which he accepted, outlined “the history of the symptoms”, which was consistent with the history taken by Dr Street and, largely, by Dr Vickery. These observations and findings were open on the evidence [115].

26. The Arbitrator acknowledged that the time was lengthy, but said that it was not unusual with a psychological injury and the “main thing was to treat the physical pain”. He said the main element in the worker’s favour was “the nature of the symptoms which relate to the incident of injury itself and the fear associated with that”. This statement was open on the evidence and further explained the Arbitrator’s acceptance of Dr Street’s evidence [117].

27. The submissions relating to South West Area Health Service v Dyer [2012] NSWWCCPD 46 and Kooragang regarding an alleged failure of the Arbitrator to explain his reasoning in favouring a sufficient connection with the injury to conclude the injury was a primary psychological injury, and Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 regarding the failure to provide sufficient weight to the lack of treatment around the time of the injury and lack of complaint to the general practitioner, were not explained and were rejected [119], [122].

28. The Arbitrator concluded that the overwhelming weight of the evidence was that the fall itself, not the pain secondary to the physical injuries received in the fall, was the cause of the worker’s psychological condition and that he preferred the evidence of Dr Street to that of Dr Vickery as to diagnosis and “opinion generally”. The Arbitrator gave comprehensive reasons for accepting Dr Street and rejecting Dr Vickery. His detailed reasons were open on the evidence and disclosed no error [123].

Other matters 

29. Dr Street’s report of 2 February 2012, was a “relevant report” and the respondent’s failure to provide the worker with a copy or attach it to the s 74 notice breached cl 46(3) of the 2010 Regulation [124]-[125].