Issue 10: October 2014

Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55

Claim for weekly compensation; meaning of “no current work capacity”, “current work capacity” and “suitable employment” in s 32A of the 1987 Act; relevance of unavailability of light duties previously provided by the employer; relevance of Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; (1996) 25 NSWCCR 206 in light of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012

Roche DP

2 September 2014

Facts:

The respondent worker, Carol Dewar, started work in 2000 with the appellant employer, Wollongong Nursing Home Pty Ltd (the Nursing Home) as a permanent part-time assistant at the Nursing Home’s aged care facility. From about 2007 or 2008, she worked 16 hours per week over Saturdays and Sundays.

On 12 January 2013, Mrs Dewar injured her right shoulder in the course of her employment. After a brief period off work, she returned to work on light duties in early February 2013, “making beds, feeding patients, cutting nails and general cleaning”. While doing this work she experienced a burning pain in her right shoulder. She worked on light duties until they were withdrawn on 19 August 2013. The insurer had denied liability on 12 August 2013 because it disputed injury. On 13 September 2013, at her own expense, Mrs Dewar underwent surgery on her right shoulder.

On 17 December 2013, Dr Sherrell, Mrs Dewar’s treating general practitioner, issued a WorkCover medical certificate where he certified her fit for work for eight hours per day two days per week with a lifting restriction of two kilograms on her right hand, no above shoulder height activities with her right arm and no pushing and pulling. Mrs Dewar presented that certificate to the Nursing Home on 24 December 2013 and was told that there were no suitable duties available.

In her statement of 12 February 2014, Mrs Dewar said her arm was very weak and the only light duties she would be able to perform at the Nursing Home were reading to patients and feeding them. She had been looking for work in her local newspaper and on online job sites, but did not identify the jobs she thought she could do.

The claim before the Arbitrator was for weekly compensation from 12 August 2013 to date and continuing and for hospital and medical expenses. The appellant’s insurer disputed injury, whether employment was a substantial contributing factor to any injury, whether Mrs Dewar had any entitlement to weekly compensation under Pt 3 Div 2 of the 1987 Act, and whether treatment expenses for surgery to the right shoulder were reasonably necessary treatment as a result of the injury.

The Arbitrator found against the Nursing Home on all issues. The only issue relevant to the appeal was the dispute about Mrs Dewar’s entitlement to weekly compensation. The Arbitrator found that Mrs Dewar had “no current work capacity” from 12 August 2012 to date and continuing. He found that the words “employment in work for which the worker is currently suited”, in s 32A, imply “capacity which is, of its nature, capable of sale on the labour market”. While acknowledging that the 2012 amendments removed the requirement that allowance must be made for the availability of work, the Arbitrator said that the “suitable employment” must still “represent real work and not ‘made up’ duties”.

Turning to other provisions in the legislation, the Arbitrator noted that the requirement in s 35(1) of the 1987 Act, to assess the amount “the worker is able to earn”, “strongly suggested that it is the extent to which ‘suitable employment’ is capable of producing income which is the significant factor”.

The Arbitrator said that while the tasks Mrs Dewar performed (while on light duties up to 19 August 2013) may have been tasks that were within her physical capacity, they did not represent “suitable employment” in “the sense of work which could be performed for reward within the Australian industrial regime which prescribes a minimum hourly payment for workers”. The Arbitrator was satisfied that, as a result of restrictions from her right shoulder injury, Mrs Dewar would be “unable to sell her restricted abilities to perform work”. Thus, he concluded that she had no current work capacity from 12 August 2013 to date and continuing. The Commission determined that the Nursing Home was to pay the applicant weekly payments of compensation:

• in the sum of $296.72 per week from 12 August 2013 to 3 November 2013 pursuant to s 36(1)(a) of the 1987 Act, and
• in the sum of $249.60 per week from 4 November 2013 to date and continuing pursuant to s 37(1)(a) of the 1987 Act.

The Nursing Home appealed the award for the periods from 12 August 2013 to 12 September 2013 and from 10 December 2013 to date and continuing. It conceded that Mrs Dewar was entitled to weekly compensation for the period from 13 September to 9 December 2013, when she was recovering from surgery.

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

• finding that Mrs Dewar had no current work capacity;
• failing to properly apply s 32A and the definition of suitable employment in that section, and
• considering whether Mrs Dewar could sell her labour in the labour market
• rather than deciding what employment she was capable of performing.

Held: The appeal was successful.

Discussion and findings

1. Having accepted that Mrs Dewar had an “inability” arising from her work injury, the Arbitrator’s task was to determine, having regard to the matters listed in the definition of suitable employment, if she was “able to return to work in suitable employment”. The legislation required an assessment of whether the worker was able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is “available” or is of a type or nature that is “generally available in the employment market” [48].

2. The determination of whether a worker has a current work capacity or no current work capacity will depend on all the evidence. In the present case, given the medical evidence that Mrs Dewar was fit for light duties, and there being no reports from any rehabilitation or vocational experts, it was not open to the Arbitrator to find that, in the periods in dispute, Mrs Dewar had no current work capacity [49].

3. After referring to Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; 25 NSWCCR 206 (Lawarra Nominees), the Arbitrator said that, to be viewed as “suitable employment”, there must be a capacity that is at least “potentially able to be realised for financial reward on the labour market”. If, by that statement, the Arbitrator meant that the work had to be available in a labour market reasonably accessible to Mrs Dewar, his statement was inconsistent with s 32A and was wrong. If the Arbitrator meant that the suitable employment must be employment that is real and is (potentially) available in the labour market at large, though not available to Mrs Dewar and not “generally available in the employment market”, that would be correct. However, even if the light duties Mrs Dewar performed up to 19 August 2013 fell into that category, that is, they were not real employment or work that was potentially available in the labour market at large (an issue that the Arbitrator did not properly determine in any event) that did not relieve the Arbitrator of his obligation to determine if Mrs Dewar was fit for other suitable employment [51]-[52].

4. Regardless of what the Arbitrator meant by “potentially able to be realised for financial reward”, he did not explain why Mrs Dewar could not have (potentially) realised her capacity for reward. The unavailability of her previous light duties with the Nursing Home did not answer that question. There was no evidence of the kind of jobs for which Mrs Dewar had applied, but it was reasonable to assume that they were real jobs that she felt were within her capacity and, significantly, within the restrictions in Dr Sherrell’s certificate. Thus, on the evidence, Mrs Dewar had a capacity (potentially) able to be realised for reward [53].

5. In light of the 2012 amendments, care must be exercised in relying on Lawarra Nominees and Moran Health Care Services v Woods [1997] NSWSC 147(Woods). Under those authorities, the task of assessing whether a worker was wholly or partially incapacitated was a “practical exercise” that “involve[d] the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which [the worker] is to be engaged” (Lawarra Nominees) [54].

6. This approach was consistent with the High Court’s decision in Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2, where it was said that “the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work” (emphasis added) [55].

7. It is the emphasised words in the two preceding paragraphs ([5] and [6]) that have effectively been eliminated by the directions in s 32A that employment for which the worker is currently suited is determined “regardless of” whether the work or employment is “available” and regardless of whether it is “of a type or nature that is generally available in the employment market”. However, other aspects of Lawarra Nominees and Woods remain relevant in determining whether a worker is “suited” for suitable employment [56].

8. The determination of whether a worker is “able to return to work in suitable employment” is not a totally theoretical or academic exercise. Mason P’s reference to the “eye of the needle” test in Woods may still be relevant in many cases [60].

9. The determination of what is suitable employment requires the identification of whether there are any “real jobs” (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are “available” (to the worker) or are “of a type or nature that is generally available in the employment market”. The Arbitrator did not properly undertake that task and did not resolve the conflict in the evidence about the nature of the light duties Mrs Dewar performed [63].

10. In determining if a worker is “not able to return to work” in suitable employment there will often be issues about the suitability of the work in question. Such issues will be determined on a case-by-case basis, depending on the available evidence dealing with the issues in sub-s (a) of the definition. In the present case, the only evidence that addressed the issue, including the evidence from Mrs Dewar, was that she was fit for suitable employment, but with the restrictions noted by Dr Sherrell. Though the evidence of the kinds of jobs Mrs Dewar could now perform was in an unsatisfactory state, that did not relieve the Arbitrator from performing his statutory task [64].

11. If there is a current work capacity, that is relevant to calculating “E” (the amount to be taken into account as the worker’s earnings after the injury, where the worker is not employed), which is then used in the equations in ss 36(2) and 37(2) and (3). If there is no current work capacity, one looks to s 36(1) or s 37(1), depending on whether the claim is in the first or second entitlement period [66].

12. The words “the amount the worker is able to earn in suitable employment” in s 35 are not relevant to the preliminary question of whether a worker has a current work capacity. They are, however, relevant to determining the amount to be taken into account as the worker’s earnings after the injury where he or she is not employed. In assessing that amount, the reference to “the amount the worker is able to earn in suitable employment” is a reference to the amount the worker is able to earn in suitable employment, as that term is defined in s 32A [67].

13. Sections 36 and 37 provide the methodology for calculating the amount of weekly compensation payable. However, that does not mean that the phrases “current work capacity” and “no current work capacity” have no purpose other than to determine which of the subsections in ss 36 and 37 applies. Before getting to ss 36 and 37, there must be a determination of whether the worker has a “current work capacity” or “no current work capacity”, determined by reference to the definitions in s 32A [68].

14. It is a matter for the parties how they conduct the next arbitration. However, at a minimum, it would be necessary to tender relevant evidence as to the kinds of jobs that Mrs Dewar is now fit to perform. It will also be necessary for a finding to be made as to the nature of the light duties Mrs Dewar performed with the Nursing Home and to then determine whether those duties come within the definition of “suitable employment”. If it is determined that the light duties were not “suitable employment”, it will then be necessary to determine if there is other “employment in work for which [Mrs Dewar] is currently suited” and the rate of remuneration of that employment [70].

Downer EDI Works Pty Ltd v McLuckie [2014] NSWWCCPD 57

Disease; skin cancer; claim for lump sum compensation and medical expenses; determination of deemed date of injury where two separate claims made; possibility of multiple deemed dates of injury; relevance of discontinuance of proceedings based on first claim; determination of employer who last employed worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease of skin cancer; principles in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 discussed; ss 4(b), 15 and 16 of the 1987 Act; difference between s 4(b)(i) and s 15 claims, on the one hand, and s 4(b)(ii) and s 16 claims on the other; apparent non-compliance with requirement to serve all relevant medical reports under cl 46 of the Workers Compensation Commission Regulation 2010

Roche DP

9 September 2014

Facts:

This appeal concerned a claim for lump sum compensation and medical expenses. The claim was based on the disease of skin cancer said to have been aggravated, accelerated or exacerbated due to Mr McLuckie’s exposure to sunlight in the course of his employment in road maintenance with several different employers between 1971 and 2013.  Though his work was essentially for the same organisation, the legal identity of Mr McLuckie’s employer changed several times over the years. In the course of his work since 1971, Mr McLuckie was employed by the following entities:

• Allen Brothers Asphalt Ltd, the second respondent on appeal and the first respondent at the arbitration, from 21 October 1971 to 31 July 1990;
• Emoleum Australia Ltd, the third respondent on appeal and the second respondent at the arbitration, from 1 August 1990 to 31 July 1996;
• CSR Emoleum Road Services Pty Ltd (the fourth respondent on appeal and the third respondent at the arbitration) and CSR Emoleum Services Pty Ltd (the fifth respondent on appeal and the fourth respondent at the arbitration), from 1 August 1996 to 31 March 2003;
• Readymix Holdings Pty Ltd, the sixth respondent on appeal and fifth respondent at the arbitration, from 1 April 2003 and 10 April 2003;
• Readymix Emoleum Services Pty Ltd (Readymix Emoleum), the seventh respondent on appeal and the sixth respondent at the arbitration, from 11 April 2003 to 31 March 2006, insured by Rinker Group Ltd, and
• Downer EDI Works Pty Ltd (Downer EDI), the appellant on appeal and the seventh respondent at the arbitration, from 1 April 2006 to 30 June 2013.

The first claim – 17 November 2005

By letter dated 17 November 2005, Mr McLuckie claimed from Rinker Group Ltd $26,000 in respect of a 19 per cent whole person impairment due to “solar induced skin damage”, plus $25,000 for pain and suffering under s 67 of the 1987 Act. On 7 August 2008, Mr McLuckie filed an application in the Commission (matter No 6127/08) against several employers in which he sought to have liability for the first claim determined. He discontinued these proceedings on 15 September 2008.

The second claim – 10 November 2008

By letter dated 10 November 2008, addressed to Downer EDI’s solicitors, Mr McLuckie claimed lump sum compensation for a 36 per cent whole person impairment, and compensation for past and future hospital and medical expenses. The letter alleged a date of injury of “11 November 2005” “due to the nature and conditions of work” from 1971 and “ongoing” with the seven employers who became the seven respondents at arbitration.

The current proceedings in the Commission

By an Application registered with the Commission on 11 December 2012, Mr McLuckie claimed from each of the seven employers the lump sum compensation particularised in the letter of 10 November 2008 plus $40,548.42 for past hospital and medical expenses and $55,000 for future hospital and medical expenses. The Application pleaded the same particulars against each of the seven named employers. It alleged a date of injury of 10 November 2008. The injury was alleged to have occurred as a result of “[l]ong term exposure to sun in the course of work duties”.

The first, second, third and seventh employers, and their respective insurers, disputed liability on the several grounds. They asserted that the worker was “suffering from a disease of gradual onset caused or aggravated by work” and that they were not liable because they were not the last relevant employer or insurer on risk. They added, presumably in the alternative, at least so far as Downer EDI was concerned, that Mr McLuckie had previously commenced proceedings in respect of the same claim in 2005 (the first proceedings had not in fact been commenced until 2008) and the deemed date of injury was the date the claim for impairment was made (on 17 November 2005). Consequently, it was contended that liability “in those circumstances should lie with the employer and insurer on risk at the time that that claim was made”.

The employer as at 17 November 2005 was Readymix Emoleum, the sixth employer in time and the seventh respondent on appeal, insured by Rinker Group Ltd. In a s 74 notice dated 23 July 2008, Rinker Group Ltd disputed liability, presumably on behalf of Readymix Emoleum, on the ground that Mr McLuckie did not sustain any injury with it and, in the alternative, that any injury was in the nature of a disease process and Rinker Group Ltd was not the last employer for whom Mr McLuckie carried out work to the nature of which any disease was due. It also asserted that the worker did not compy with the legislative requirements regarding notification of injury and the claiming of compensation benefits.

Proceedings before the Arbitrator

The main issues argued before the Arbitrator were, first, whether Mr McLuckie’s employment after 12 January 1997, the date on which s 9A commenced, was a substantial contributing factor to the aggravation of his skin cancer and second, the identification of the correct deemed date of injury, which would identify the employer liable.

The Arbitrator determined that the applicant suffered injury arising out of and in the course of his employment to which his employment was a substantial contributing factor, namely aggravation and acceleration of the disease of skin cancer. The deemed date of injury was 10 November 2008 when the applicant was employed by the seventh respondent. Awards were made for the first, second, third, fourth, fifth and sixth respondents and the seventh respondent was ordered to pay the applicant’s hospital and medical expenses pursuant to s 60 of the 1987 Act. Downer EDI appealed.

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

• finding two deemed dates of injury under s 16(1)(a);
• disregarding 17 November 2005 as a deemed date of injury, because of a nomination or election by Mr McLuckie’s counsel, and
• finding that Downer EDI was the entity that last employed Mr McLuckie in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of Mr McLuckie’s disease.

The Deputy President dealt with the first two grounds under “deemed date of injury” and the last under “last relevant employer”.

Held: The appeal was successful. Paragraphs 1, 2, 3, 4, 5, 6, and 7 of the Arbitrator’s determination of 31 March 2014 were revoked and the matter was remitted to another Arbitrator for re-determination.

Deemed date of injury

1. Just as it is for plaintiffs to plead their claims and to establish that any claimed impairment has resulted from the pleaded injury (Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354), so it is for applicants to do the same in the Commission (NSW Police Force v Gurnhill [2014] NSWWCCPD 12) [74].

2. The pleadings, though unsatisfactory, identified 10 November 2008 as the date of injury and, more importantly, that was the date on which Mr McLuckie’s counsel relied [75].

3. The reference to 11 November 2005 (which it was accepted was intended to be 17 November 2005) in the letter of 10 November 2008 was of no consequence. The reference to November 2005 must be considered in light of the way the case was pleaded and run. Mr McLuckie ran his case on the deemed date of injury of 10 November 2008 and nothing in the evidence or the transcript of the submissions before the Arbitrator suggested the contrary. Therefore, the reference to the date of injury of November 2005 in the letter of 10 November 2008 was irrelevant [80].

4. Given the way in which the case was argued, the Arbitrator correctly found the relevant deemed date of injury to be 10 November 2008 [82].

Last relevant employer

5. In determining if a worker is entitled to compensation for an aggravation injury under s 4(b)(ii), it is necessary to ask (with appropriate modifications as to the nature of the current claim and the introduction of s 9A) the questions posed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 638, namely:

• “Was the applicant suffering from a disease?
• If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
• If so, was [the] employment a [substantial] contributing factor?
• If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?” (In the present case, as there is no claim for weekly compensation, the question is whether the claimed whole person impairment and medical expenses have resulted from the aggravation.) [100]

6. There is an aggravation of a disease if it is made more grave or more serious in its effects upon the patient. It was not disputed that the worker’s condition was a disease or that, as a result of his employment between 1971 and 2013, his disease was aggravated by his employment. The appropriate deemed date of injury was 10 November 2008 [101]–[102].

7. The next issues were whether impairment and need for medical treatment resulted from the aggravation and the identity of the employer liable for compensation. The Arbitrator did not address if Mr McLuckie’s employment with Downer EDI was a substantial contributing factor to an aggravation injury. His reasons focused on “the employment” generally and he concluded that the worker’s exposure to sunlight after 12 January 1996 and up to 30 June 2013 was a substantial contributing factor to the aggravation of the disease of skin cancer. He did not identify the aggravation that allegedly occurred with Downer EDI [103]–[108].

8. If only one employer had employed the worker between January 1996 and 30 June 2013, the Arbitrator’s finding may have been sound. However, there were several employers in that time. To determine the last relevant employer under s 16, the Arbitrator had to determine the employer who, prior to 10 November 2008, “last employed” the worker in employment that was a substantial contributing factor to the aggravation. There was no persuasive evidence that Downer EDI was that employer [109].

9. There was no evidence that Mr McLuckie’s impairments, or his need for medical treatment, resulted from any aggravation with Downer EDI. The passages the Arbitrator quoted from the medical evidence established that repeated exposure to the sun was likely to have a deleterious effect upon Mr McLuckie’s condition. They did not establish that Mr McLuckie suffered an aggravation injury with Downer EDI [110].

10. Rinker Group Ltd’s submission that it was unnecessary for the worker to demonstrate that the work with Downer EDI caused his injury was incorrect. The authority relied on, McDonald v MW & JM Riddiford [2014] NSWWCCPD 27(McDonald), concerned a case under s 4(b)(i) not s 4(b)(ii). In a case under s 4(b)(i) (which must be read with s 15), it is not necessary for the worker to prove that his or her employment with the last relevant employer caused the injury [111].

11. As explained by Meagher JA (Bathurst CJ and Hoeben JA agreeing) in CSR Timber Products Pty Limited v Weathertex Pty Limited [2013] NSWCA 49; 83 NSWLR 433 (Weathertex), the following are legally indispensable in a claim under s 4(b)(i):

• that the worker contracted a disease in the course of employment and to which that employment was a contributing factor (s 4(b)(i));
• that the employment was a ‘substantial contributing factor’ to that injury (s 9A(1));
• that the disease was a disease of such a nature as to be contracted by a gradual process (s 15(1));
• that the worker made a claim for compensation in relation to that disease on a specific date (s 15(1)(a)(ii)), and
• that the employer from whom compensation is claimed was the employer who last employed the worker in employment to the nature of which that disease was due (s 15(1)(b)) [112].

12. Employment to the nature of which the disease was due means employment of such a kind as to involve a risk to the employee of contracting the gradual process disease which is disabling the worker (Smith v Mann [1932] HCA 30; 47 CLR 426; Blatchford v Staddon & Founds (1927) A.C. 470; Tame v Commonwealth Collieries Pty Ltd [1947] NSWStRp 9; (1947) 47 SR (NSW) 269) [113]–[115].

13. Section 4(b)(ii) must be read with s 16, which is different to s 15. Unlike s 15, s 16 states that compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation. This issue did not arise in McDonald because the worker in that case relied only on ss 4(b)(i) and 15. Thus, the worker did not have to prove that his employment with the last relevant employer caused an aggravation of his condition [116].

14. While the pleadings in the present case referred to both ss 15 and 16, which suggested that reliance was placed on s 4(b)(i) and (ii), counsel for Downer EDI was unable to refer to any part of the transcript of the arbitration proceedings where he expressly relied on s 4(b)(i), but nevertheless maintained on appeal that it was “implicit” that he had relied on both sub-sections [117].

15. The reliance on s 4(b)(i) created a difficulty in the ultimate resolution of this case. That was because Downer EDI urged that, if it succeeded on appeal, there should be an award in its favour. If that submission were accepted, Mr McLuckie’s rights against that company would have been at an end. That would leave Mr McLuckie to pursue his claim against Readymix Emoleum, and the earlier employers, and face the difficulties that that may entail in a disease case. As the last employer issue was not properly and finally determined, it was necessary to revoke the awards in favour of the other respondents to the appeal and remit the matter for re-determination [117], [123].

Sydney Local Health District (wrongly sued as Sydney South West Area Health Service) v Fragar [2014] NSWWCCPD 59

Section 10 of the 1987 Act; whether nurses’ accommodation unit was a place of employment; application of the principles in Toner v Leconfield Colliery [1961] 35 WCR 101

Keating P

11 September 2014

Facts:

The worker was a registered nurse and midwife travelling between two hospitals where she was employed when she received an injury to which s 10(5) of the 1987 Act applies. She worked for Sydney Local Health District (the appellant), at Canterbury Hospital, and for the second respondent, Lithgow Community Private Hospital Ltd (LCPH) at Lithgow Private Hospital.

When working at Canterbury Hospital the worker was permitted to stay in one of the nurses’ units located at the side of the hospital.

On 7 October 2010, the worker commenced her first day of work at LCPH, as a casual. She finished her rostered shift that day at approximately 5.30 pm. After finishing work that day she set out to drive to Sydney with the intention of staying overnight in the nurses’ units at Canterbury Hospital before commencing duties the next day at the hospital. Her shift was due to commence at that hospital on 8 October 2010 at 9.30 pm.

During the course of the journey, at approximately 7.30 pm, the worker stopped for coffee at the McDonald’s restaurant at Blaxland. As she left the restaurant and walked towards her vehicle, which had been parked in the McDonald’s car park, she fell. The worker suffered a fracture to her right elbow, as a result of which she was incapacitated from 7 October 2010 to 6 December 2010.

The worker made a claim for weekly compensation against both employers for injury to her right elbow. The insurers for both employers denied the claim.

The matter came before a Commission Arbitrator who found in favour of the worker against the appellant, on the basis that when the worker was injured she was on a periodic journey between her place of employment with LCPH to her place of employment with the appellant and was therefore deemed to be on a periodic journey from her place of abode to her place of employment pursuant to ss 10(1), 10(3)(a) and 10(5) of the 1987 Act. The Arbitrator entered an award in favour of LCPH. The Arbitrator’s determination was appealed.

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

• it was a term and condition of the worker’s employment that she be provided with temporary accommodation;
• the worker was on a journey to her place of employment, because the accommodation was at the side of Canterbury Hospital;
• the 12 hour period, prior to commencing her shift, was not a period of convenience for the worker;
• the unit at the side of Canterbury Hospital was a place of employment as envisaged by s 10(5) of the 1987 Act, and
• it was unnecessary for him to consider whether the journey might be of a type as described in s 10(3)(e).

Held: The Arbitrator’s determination was confirmed.  

Discussion and Findings

1. The appellant’s submission that the Arbitrator erred by finding that it was a “term and condition” of the worker’s employment that she be provided with temporary accommodation was misconceived and rejected by the President. The Arbitrator did not make that finding. He found that the worker was “provided” with accommodation in a unit located at the side of the hospital. The appellant’s counsel conceded that there was an arrangement in place between the worker and the appellant whereby she was permitted the use of accommodation in the nurses’ units at the side of Canterbury Hospital, from time to time. That was consistent with the evidence [67].

2. The Arbitrator was satisfied that the nurses’ units to be occupied by the worker was both a place of abode and a place of employment pursuant to s 10(5). That was supported by the evidence [71].

3. The appellant had control over the occupation of the nurses’ units. The occupation of the units was restricted to staff needing temporary accommodation either prior to a shift or between shifts. The appellant determined, on application from an employee, when and for how long the units could be occupied. Access to the units was by means of a key, which was issued by the appellant. There seemed to be no dispute that the units, although being described as being at the side of the hospital, are situated on premises owned and occupied by the appellant [72].

4. The real issue was whether the Arbitrator erred in finding that the period of 12 hours or so available to the worker, between rising on the morning of 8 October 2010 and commencing duties at the appellant at 9.30 pm that night, was not a sufficient period of time to bring about the degree of temporal separation such as to change the characterisation of the occupation of the nurses’ unit from being both a place of abode and a place of employment to be a place of abode only. The determination of that issue is a question of fact and degree (Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 and Roy Morgan Research Ltd v Commissioner of State Revenue (1997) 37 ATR 528 applied) [74]–[75].

5. The only evidence concerning the worker’s occupation of the nurses’ unit on the day in question was her evidence, that after finishing work at LCPH at about 5.30 pm, it was her intention to have something to eat and then drive to the accommodation at the side of Canterbury Hospital prior to starting her rostered shift at 9.30 pm on 8 October 2010. That evidence was unchallenged and no other evidence was presented to suggest that her planned occupation of the unit that day was for reasons unconnected with her employment [77].

6. The Arbitrator found that that period of time, prior to the worker commencing her shift at Canterbury Hospital, was insufficient to change the characterisation of the nurses’ unit to only be a place of abode rather than both a place of abode and a place of employment (Toner v Leconfield Colliery [1961] 35 WCR 101 applied). He found, in context, that it was a short period during which a nurse would largely need to rest to prepare for the coming all night shift. That finding was open on the evidence and disclosed no error [78]–[79].

7. Having found that the worker was entitled to succeed pursuant to ss 10(1), 10(3)(a) and 10(5), the Arbitrator was not required to consider the application of s 10(3)(e)(ii) and his failure to do so did not constitute an appealable error [82].

8. Section 10(3)(e)(ii) had no application to the case. It applies to a “journey between any camp or place” – (1) where the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to reside temporarily, or, (2) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker’s employment and the worker’s place of abode when not so residing [83].

9. At the time the worker was injured she was not on a journey between “any camp or place” where she was required to reside temporarily and her place of abode when not so residing. She was, as the Arbitrator correctly found, on a journey from a place of employment with one employer to a place of employment with another employer. That was so notwithstanding that the second place of employment was, for a period of time, also a place of abode [84].

Sydney’s American Imports Pty Ltd (Deregistered) v Ljubic [2014] NSWWCCPD 56

Claim for lump sum death benefit; whether employment was a substantial contributing factor to the deceased’s injury; s 9A of the 1987 Act

Keating P

3 September 2014

Facts:

The deceased and his wife were directors and employees of Sydney’s American Imports Pty Ltd (Deregistered) (the appellant). The deceased was a motor vehicle dealer who was involved in the purchase, repair and resale of prestige used vehicles until it ceased to trade as a business at the end of August in 2005. The deceased and his wife worked at the appellant’s Silverwater premises.

In the evening of 23 March 2005, the deceased attended a remote location in Wollstonecraft to inspect a Ferrari motor vehicle with a view to his purchase of the vehicle. It was not uncommon for the deceased to inspect motor vehicles at irregular hours and often at night.

It was later revealed that the deceased had been lured to Wollstonecraft by three co-conspirators with the intention of kidnap and extortion. In the course of the bungled extortion attempt the deceased was murdered.

The respondent claimed the lump sum death benefit and weekly payment provided for by s 25 of the 1987 Act. That claim was denied and the matter came before a Commission Arbitrator who found that the deceased died as a result of injury arising out of and in the course of his employment to which his employment was a substantial contributing factor. The Arbitrator entered an award against the appellant for payment of the lump sum death benefit and weekly benefits pursuant to s 25 of the 1987 Act. The Arbitrator’s decision was appealed.

The issues in dispute for resolution on appeal concerned the following two questions:

• in considering whether the deceased’s employment was a substantial contributing factor to the injury which caused his death, did the Arbitrator err by reversing the onus of proof?, and
• was there sufficient evidence to support the Arbitrator’s finding that the deceased’s employment was a substantial contributing factor to the injury?

It was not disputed that the deceased was in the course of his employment at the time of the injury which led to his death. As a result the requirements of s 4 of the 1987 Act were satisfied, irrespective of the Arbitrator’s finding that the injury also arose out of the deceased’s employment.

Held: The Arbitrator’s determination was confirmed.  

Discussion and Findings

1. The President did not accept the appellant’s submission that the Arbitrator reversed the onus of proof by finding that the appellant had failed to prove the non-employment related factors on which it relied rather than approaching the s 9A issues on the basis that the respondent bore the onus of satisfying s 9A [69]­–[70].

2. To the extent that the appellant sought to argue that the kidnapping of the deceased and the attempted extortion was motivated by a private vendetta, such that it would militate against a finding that the injury and subsequent death arose out of his employment, the evidentiary burden was on the appellant to establish those matters to the satisfaction of the Arbitrator. Where a claimant has proved an incapacitating injury (or injury causing death) arising out of or in the course of his employment, at least to a prima facie level, it is for the employer to show if it can, that there is something which disentitles the worker to compensation (Nunan v Cockatoo Docks and Engineering Co Ltd [1941] NSWStRp 23; (1941) 41 SR (NSW) 119). That is the approach the Arbitrator correctly adopted in the findings on s 4 [70].

3. The Arbitrator correctly identified that whilst “arising out of” (s 4) and substantial contributing factor (s 9A) both involve causative elements, the requirement that the employment must be “a substantial contributing factor” to the injury suffered by a worker found in s 9A is a different or added requirement to the causation element required to satisfy the “arising out of” limb of s 4 [71].

4. The Arbitrator clearly accepted that the onus of proving that the deceased’s employment was a substantial contributing factor to the deceased’s injury and subsequent death was with the respondent. The methodical way in which the Arbitrator analysed the issues under s 9A(2) graphically demonstrated that [73].

5. The factors which led the Arbitrator to his conclusion, that employment was a substantial contributing factor to the deceased’s injury, included an examination of the matters referred to in s 9A(2). The Arbitrator was correct to find that the scheme depended upon utilising the nature of the deceased’s employment to lure him to the car park so that he might be seized in circumstances which precluded either escape or recognition of his conspirators. That plan minimised the intervention by family, friends or work colleagues or members of the public to frustrate the plan [77]–[79].

6. In the unusual circumstances of this case, as the Arbitrator correctly found, there may have been a number of factors that contributed to the abduction and death of the deceased. However, whilst some of those factors may not have been employment related, the fact that it was the nature of the deceased’s employment that caused him to be lured to an isolated location from which he was abducted and later killed was clearly a substantial contributing factor to his injury and subsequent death [80].

7. A finding as to the strength of the causal connection between the employment and the injury is an evaluative one. The Arbitrator’s conclusion based on his evaluation of the available evidence was open to him and did not demonstrate error. The Arbitrator methodically analysed the relative contributing factors leading to the deceased’s death. His conclusion that the deceased’s employment was a substantial contributing factor to his injury and death was open on the evidence and disclosed no error [81].

Hunter New England Local Health Network v Turnbull [2014] NSWWCCPD 58

Claim for lump sum compensation; chronic/recurrent pseudomonas infection; causation of bronchiectasis; interlocutory decision; causation of infection; error of law alleged

O’Grady DP

10 September 2014

Facts:

From 1979 to 2010, the appellant employed Ms Turnbull as a registered nurse, on an intermittent basis. From 2005, when the worker obtained qualifications as a Clinical Nurse Specialist (CNS) in respiratory medicine, her duties concerned management of patients who were suffering respiratory illnesses including infection.

In March 2006, the worker consulted her general practitioner, Dr Haron, concerning a troublesome cough. Dr Haron diagnosed acute bacterial bronchitis due to haemophilus influenzae and pseudomonas infection. After an absence, she returned to work before she experienced recurrent respiratory illness. In August 2010, Dr Haron provided a WorkCover NSW medical certificate which certified that Ms Turnbull was unfit for work due to “chronic/recurrent pseudomonas bronchitis and sinusitis” and that her employment was a substantial contributing factor to her injury. Since ceasing work with the appellant in 2010, she continued to suffer recurrent respiratory symptoms and has had intensive medical treatment.

A claim for compensation benefits was presented to the appellant by the worker. That claim was declined in a letter dated 8 September 2010. The matters in dispute were noted in that correspondence as the worker’s failure to make a claim for compensation within “the timeframes set in the legislation”; that no injury had been suffered in the course of the worker’s employment, and that the worker’s employment was not a substantial contributing factor to any condition that she might “now have”.

In March 2013 Ms Turnbull commenced proceedings in the Commission against the appellant seeking orders with respect to her entitlement to workers compensation benefits. It was her allegation that the condition, being acute bacterial bronchitis due to haemophilis influenza and pseudomonas infection, was caused by reason of her exposure to patients suffering pseudomonas infection whilst they were resident at the appellant’s hospital. Ms Turnbull claimed weekly payments of compensation dating from March 2010 and continuing as well as lump sum compensation.

The claim was subsequently amended by deletion of the weekly payments claim. The outstanding claim, concerning lump sum compensation, came before a Commission Arbitrator for conciliation and arbitration on 5 June 2014. The matter proceeded to hearing and the Arbitrator found that, on the balance of probabilities, the worker suffered personal injury arising out of and in the course of her employment with the appellant as a CNS in respiratory medicine in February 2006 when she suffered pseudomonas infection which led to the development of bronchiectasis. The Arbitrator further found that the employment concerned was a substantial contributing factor to her injury.

The issues in dispute on appeal were that:

• there was insufficient evidence to support the finding that the pseudomonas bacteria tested to be present in 2006 was as a result of the nature of the work the worker performed with the respondent;
• the Arbitrator erred in determining that there was sufficient evidence to establish that the bronchiectasis diagnosed in September 2010 resulted from the pseudomonas bacteria tested to be present in 2006, and
• the Arbitrator failed to take into account all of the evidence before the Commission in assessing the issue of causation.

Held: The Arbitrator’s findings and orders as recorded in the Certificate of Determination dated 16 June 2014 were confirmed.

Ground (a)

1. The Arbitrator did not found his factual conclusion concerning injury solely upon evidence concerning the worker’s exposure to a particular patient. Instead, he placed reliance on the evidence of the worker’s supervisor, Ms McCormack, that patients with respiratory problems “would not be identified necessarily as suffering from a pseudomonas infection for at least five days when the pathology test results came back”. The Arbitrator noted that before suffering the relevant infection, the worker had been employed as a CNS and “found herself caring for patients with respiratory illnesses every day at work”. It was clear that the Arbitrator accepted this lay evidence. It was a matter for the Arbitrator to determine the weight, if any, to be attached to that and other evidence before him [56]–[57].

2. Having accepted that Ms Turnbull was regularly treating patients with respiratory difficulties, the Arbitrator considered the expert medical evidence in reaching his conclusion concerning injury. In addition to Dr Haron’s evidence, the Arbitrator had regard to the evidence of Dr Kaufman, respiratory physician and allergist, and Associate Professor Wark, specialist respiratory and sleep medicine, whose evidence was that it was “not possible to demonstrate an exact genetic match between pseudomonas grown from the worker’s sputum and that from her patients”. The Arbitrator also considered the views of Dr Bartley, infectious diseases consultant physician, that it was “almost impossible to prove” the hypothesis of occupationally-acquired pseudomonas lower respiratory tract infection [59]–[60].

3. The Arbitrator’s reasoning demonstrated that he adopted the correct approach when evaluating the evidence concerning the probability of the worker’s infection having arisen out of or in the course of her employment. As stated by the Arbitrator, it was not incumbent upon the worker to prove with scientific certainty that the infection was so caused, but rather to establish on the probabilities that such was the case [61].

4. The expert evidence, together with the lay evidence, satisfied the Arbitrator as to the probable causal nexus. The appellant’s complaint concerning insufficiency of evidence was rejected [65].

Ground (b)

5. The Arbitrator’s finding concerning causation of bronchiectasis was that the worker’s contraction of the pseudomonas in 2006 had led to the bronchiectasis. The appellant correctly submitted that Dr Kaufman was the only expert medical witness to express an opinion concerning the relationship between the 2006 infection and the development of bronchiectasis. The finding as to causation of the bronchiectasis was of importance given Dr Kaufman’s method of assessing whole person impairment. That finding was also of importance given Dr Kaufman’s opinion, which appeared to have been accepted by the Arbitrator, that the condition of bronchiectasis “could account for recurrent cough with purulent sputum production” [67].

6. Dr Kaufman’s evidence established more than a mere possibility of there being a causal nexus between infection and the bronchiectasis. That practitioner accepted as being reasonable, an inference that such causal nexus exists. Dr Kaufman’s reasons for holding that opinion were stated. The Arbitrator accepted that evidence and drew the inference as to causation. The Arbitrator’s conclusion was not mere speculation. The appellant’s argument suggesting error of law due to insufficiency of evidence with respect to this finding was rejected [71].

Ground (c)

7. Ms Turnbull was treated in the 1960s and 1970s in respect of allergic rhinitis. Polypectomy was conducted. Ms Turnbull has, since 2006, suffered from allergic rhinitis and sinusitis and has suffered from asthma for many years. These matters were recorded in various reports provided by the medical experts, whose evidence was acknowledged by the Arbitrator as having been “taken into account” in reaching his conclusions concerning the dispute [74].

8. There was no expert medical evidence which supported the appellant’s assertions relating to “causation”, specifically concerning the relevance of other medical conditions suffered by the worker. By way of illustration, the argument put on appeal was that it was of profound significance that the worker experienced a substantial worsening of her asthma condition in 2010. The fact of worsening was not in dispute. None of the medical evidence was supportive of the suggestion that the asthma was causally, or otherwise, relevant to the matters in dispute [76].

9. The Arbitrator addressed those matters related to causation as he was bound to do (Haris v Bulldogs Rugby League Club Ltd [2006] NSWCA 53). The appellant has failed to make out any relevant error. Ground three was rejected [77].

Camden Council v Victory [2014] NSWWCCPD 60

Weekly compensation; challenge to finding of total incapacity; self-employed worker; approach to determining actual earnings while self-employed; approach to assessment of ability to earn after self-employment ceases; s 37 of the 1987 Act (as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012); relevance of alleged supervening incapacity; non-compliance with Practice Direction No 6

Roche DP

15 September 2014

Facts:

In 1992, the respondent worker started work for the appellant, Camden Council (the Council), as a garbage collector/truck driver. While working for the Council, the worker suffered a serious injury to his right hand on 19 September 1997 when it was crushed between a garbage bin and a truck. After a period off work, he returned to the Council on a return to work program, but never regained full use of his right hand. On 25 May 1998, the worker again injured his right hand at work when it was crushed by a wheelie bin. On 20 July 1999, the worker had an arthrodesis of the third carpometacarpal joint of his right hand. Following the operation, he was unable to move his hand.

On 9 October 2000, the worker settled a claim for lump sum compensation in the former Compensation Court of NSW for a sum representing a 50 per cent permanent impairment of his right hand. It was assumed that he was already in receipt of voluntary payments of weekly compensation at that or about that stage, which continued until the end of 2012.

On 1 October 2001, the worker resigned. In November 2001, he commenced with Staple Brothers Pty Ltd, driving a street sweeper or on a one-man garbage truck. Whilst in this role for 18 months, he struggled “essentially one handed”. On 4 June 2002 and 9 July 2002, the worker received nerve block treatment for his hand. Sometime in 2003, he recognised that his physical disabilities would inhibit him finding work, and self-employment was the only option. He started a truck driving business with his wife. In December 2003, he underwent a revision of the previous arthrodesis of the third carpometacarpal joint of his right hand.

On 15 November 2012, the Council’s insurer, QBE Workers Compensation (NSW) Ltd, issued a s 54 notice in which it gave notice that it would be reducing Mr Victory’s weekly compensation to nil on and from 28 December 2012. The ground for the notice was that, based on a vocational capacity assessment dated 6 July 2006, Mr Victory’s ability to earn as a truck driver exceeded his probable earnings with the Council but for his injury.

On 18 December 2012, Mr Victory filed an Application in the Commission seeking weekly compensation from 28 December 2012 to date and continuing. On 26 March 2013, Mr Victory’s general practitioner, Dr Arnaudon, issued a WorkCover medical certificate certifying Mr Victory unfit for work from that date until 26 June 2013 because of “asthma caused by his work exposure”. On 28 March 2013, Mr Victory ceased work in his business, stating that his condition had deteriorated and that the work was “too overwhelming”.

The Arbitrator found Mr Victory to be totally unfit for work from 28 December 2012 to date and continuing. He made an award at the statutory rate for a worker with a dependent wife and three dependent children under s 37, as it stood prior to the amendments introduced by the 2012 amending Act. The Council appealed.

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

• finding Mr Victory to be totally incapacitated for work when there was no evidence of total incapacity;
• finding Mr Victory to be totally incapacitated for work when such a finding was against the weight of the evidence;
• finding Mr Victory to be totally incapacitated when such finding was inconsistent with the Arbitrator’s other findings;
• considering irrelevant material, namely, that Mr Victory required weekly compensation benefits to run his business;
• failing to provide reasons, and
• identifying the relevant legal test to be applied but failing to apply that test.

As different principles apply to the calculation of weekly compensation depending on whether a worker is employed (or self-employed) compared to when the worker is not employed, it was convenient to deal with the parties’ submissions under the following headings: “period from 28 December 2012 to 28 March 2013 (the first period)”, “relevance of Mr Victory’s asthma”, “relevance ofMr Victory’s emotional and/or physical breakdown”, “total incapacity”, and “reasons”.

Held: The appeal was partially successful. The following orders were made: the respondent employer was to pay to the applicant worker weekly compensation at the appropriate statutory rate for a worker with a dependent wife and three dependent children from 28 March 2013 to date and continuing under s 37 of the 1987 Act, as in force prior to the amendments introduced by the 2012 amending act. The applicant worker’s entitlement to weekly compensation for the period from 28 December 2012 to 27 March 2013 was remitted to another Arbitrator for re-determination.

Period from 28 December 2012 to 28 March 2013 (the first period)

1. It was conceded that, because the worker was working in the period from 28 December to 28 March 2013, the Arbitrator erred in making an award for total incapacity for that period. The worker’s entitlement to weekly compensation in that period had to be assessed under s 40 [34].

2. The method the Arbitrator purported to use (to determine Mr Victory’s actual earnings while self-employed) was to determine what Mr Victory’s labour would have been worth if he had been employed by another to do the work. However, while the Arbitrator thought this was the appropriate test, he failed to apply it in determining Mr Victory’s earnings in the first period. Instead, he said that he accepted Mr Victory’s evidence that he was reliant upon his workers compensation payments to “keep his head above water” and was unable to run his business without that assistance. That is not the test for determining actual earnings under s 40(2)(b) and was an erroneous approach to the calculation of Mr Victory’s actual earnings in the first period [37].

3. It follows that the Arbitrator did not properly determine Mr Victory’s actual earnings in the first period and that part of the claim must be re-determined. As neither side referred to the business accounts, or made any useful submission as to the calculation of Mr Victory’s actual earnings in the first period, this part of the claim was remitted to a different Arbitrator for re-determination [38].

Relevance of Mr Victory’s asthma

4. The right to compensation under the 1987 Act (prior to the 2012 amending Act) still arises under s 9, but Division 2 of that Act governs the quantification of weekly compensation. Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, compensation payable includes weekly compensation. Compensation for total incapacity is determined by ss 34 to 37 inclusive [44].

5. As with s 9 of the 1926 Act, provided it is established that the claimed incapacity has resulted from the work injury (Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70), retirement, or other supervening events, such as Mr Victory’s asthma, were not relevant to determining entitlement to compensation for total incapacity. They were however, most relevant to the exercise of the discretion under s 40 (s 11(1) of the 1926 Act), as is illustrated in Hirst v Illawarra Area Health Service (2000) 21 NSWCCR 82 and Wrigley Co Pty Ltd v Holland [2002] NSWCA 109 [45].

6. It was irrelevant whether Mr Victory suffered from asthma in March 2013 or whether it played a part in him stopping work in his business. The critical question was whether, when he stopped work on 28 March 2013, he was incapacitated as a result of his work injury. Given the serious injury suffered, the answer was clearly yes. Once that was accepted, the next question was his ability to earn beyond 28 March 2013 in the labour market reasonably accessible to him. The Arbitrator correctly determined that, as a result of his work injuries with the Council, Mr Victory had no ability to earn [46].

Relevance of Mr Victory’s emotional and/or physical breakdown

7. The submission that the Council has no liability for any emotional and/or physical breakdown identified by the Arbitrator was also misguided. The Arbitrator said:

“With regard to the period between 28 December 2012 and the subsequent sale of [Mr Victory’s] truck on 28 March 2013, I am satisfied that [Mr Victory] was unable to earn any income. [Mr Victory], according to his evidence (which I accept), had a complete emotional and physical breakdown. He had repayments running at $8000 per month, and it is probable that his inability to keep these payments up eventually led to his breakdown. I infer that, during the period, if he did receive some income, it was not sufficient to pay his expenses properly related to his ability to earn.” (emphasis added) [47]

8. The emphasised words above made it clear that this statement dealt only with the first period. The Arbitrator made no findings as to duration of the emotional/physical breakdown and did not have to because, with respect to the period beyond 28 March 2013, he did not base his finding of total incapacity on the emotional/physical breakdown (or the asthma). The Arbitrator’s reference to the emotional and/or physical breakdown was only in the context of considering why Mr Victory ceased to operate his business. It followed that the reference to the emotional and/or physical breakdown was of limited relevance to the assessment of the claim beyond 28 March 2013 [48]–[49].

Total incapacity

9. The Arbitrator found Mr Victory to be totally incapacitated from 28 March 2013. The evidence comfortably supported this finding. When considered with the principles discussed in Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; (1996) 25 NSWCCR 206, which states that the assessment of a worker’s ability to earn is a practical exercise having regard to the realities of the accessible labour market, the Arbitrator’s conclusion that, from 28 March 2013 to date and continuing, Mr Victory was totally unfit for work was open to him and disclosed no error [55].

10. The Arbitrator was required to consider whether Mr Victory was fit to work as a truck driver in the general labour market. In this context, it was relevant for him to consider the circumstances in which Mr Victory conducted his truck driving business and to note that, in that business, Mr Victory operated a fully automatic vehicle and was only able to maintain the business with the assistance of the weekly compensation payments he received. In the context of the case, the work as a truck driver in the business was an “artificial expectation” of Mr Victory’s ability to earn in the open labour market. That finding, considered in its proper context, was open on the evidence and disclosed no error [59].

Reasons

11. Though failure to provide reasons was identified as a ground of appeal, no submissions were made in support of this ground [61].

12. Leaving aside the period from 28 December 2012 to 28 March 2013, which had to be re-determined in any event, the Arbitrator exposed his reasoning on the critical issue in dispute, namely, Mr Victory’s work capacity beyond 28 March 2013, and articulated the grounds on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). Those grounds were based on acceptance of the worker’s evidence and the expert medical evidence, which was strongly supportive of the finding of total incapacity [62].

13. In respect of the Arbitrator’s acceptance of Mr Victory’s evidence, the Arbitrator had the opportunity to hear and see the worker give evidence and he found him to be a witness of credit. Consistent with that finding, the Arbitrator said that he was satisfied that Mr Victory was a well-motivated man unlikely to cease work unless the condition of his hand compelled him to do so. This finding was consistent with the evidence and disclosed no error. The alleged failure to give reasons ground was rejected [63]–[64].

Tarif v Anglican Retirement Villages Diocese of Sydney [2014] NSWWCCPD 61

Psychological injury; challenge to factual findings; evaluation of conflicting evidence; application of the principles in Northern NSW Local Health Network v Heggie [2013] NSWCA 255; reasonable conduct with respect to discipline; s 11A of the 1987 Act

Keating P

24 September 2014

Facts:

The worker was employed by Anglican Retirement Villages, the respondent, as a registered nurse between January 2009 and October 2012. The worker alleged that as a result of the nature and conditions of his employment, during that time, he sustained psychological injuries. He claimed that he was “subject to ongoing workplace bullying, discrimination and harassment from his supervisors”.

The respondent denied the worker’s claim for compensation and the appellant filed an Application to Resolve a Dispute. The matter came before a Commission Arbitrator and the Arbitrator found that the worker did not suffer a psychological injury arising out of or in the course of his employment with the respondent. In the alternative, the Arbitrator found that if the worker suffered a psychological injury it was a result of receiving a letter from the respondent, dated 3 September 2012, requesting that he attend a meeting to address work-related concerns. The Arbitrator found that such action was reasonable with respect to performance appraisal or discipline (s 11A of the 1987 Act). The Arbitrator’s determination was appealed.

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

• finding that it was not possible nor necessary to come to any concluded view as to the worker’s complaints of micromanagement, bullying and harassment;
• determining that there was no evidence at all of any complaint of any psychological systems or distress caused by his employment;
• preferring Dr Lee’s evidence, when so doing, failing to properly analyse and evaluate the competing opinions in light of both the medical evidence and the lay evidence and failing to give proper reasons for the acceptance of Dr Lee’s report;
• finding that s 11A defence was available notwithstanding the performance appraisal resulted from unreasonable workloads and demands by the respondent, and
• finding that the worker’s psychological condition was not caused by work, when such a conclusion was supported by Drs Bashir and Hampshire, notwithstanding the absence of evidence of complaints of panic attacks or psychological symptoms.

Held: The Arbitrator’s determination was confirmed.  

Did the Arbitrator err in not reaching a concluded view on the merits of the allegations of micromanagement, bullying and harassment?

1. The Arbitrator’s conclusion on the question of injury turned on the fact that, irrespective of the merits of the worker’s allegations of micromanagement, there was no evidence at all of any complaints of symptoms of a psychological condition caused by the events that had been unfolding in the workplace prior to the worker ceasing work in September 2012. That finding was open to the Arbitrator and did not involve error [94].

2. The worker failed on the question of injury not because the Arbitrator did not examine and reach a concluded view on his allegations of micromanagement, bullying and harassment, but because even if his allegations were accepted, he failed to discharge the onus of proof that he suffered a psychological injury by reason of same [95].

Were there complaints of psychological symptoms or distress?

3. The President did not accept the appellant’s submission that the Arbitrator’s decision not to make a determination on the lay evidence about the worker’s allegations of micromanagement affected the Arbitrator’s reasoning and caused him to err in the exercise of his discretion when he determined that there was no evidence at all of any complaint of any psychological symptoms or distress caused by what was going on at work [97].

4. The Arbitrator specifically referred to the lay evidence of the worker’s colleagues and accepted that their evidence corroborated the appellant’s complaints of discord in the workplace. That evidence provided “insight” into what was happening at the workplace. However, it was not directly relevant to the worker’s complaints and did not deal with, and certainly did not corroborate, the worker’s allegations of the onset of panic attacks and stress from the early part of 2012 [99]–[100].

5. The worker visited his general practitioner on 21 occasions between 4 April 2012 and 8 October 2012 and on none of those occasions did the doctor make any reference to any complaints of anxiety, panic attacks or any other psychological symptoms [101].

6. It followed that the Arbitrator’s finding of absence of panic attacks and stress from the early part of 2012 was consistent with the evidence presented and did not involve error [102].

Did the appellant suffer a psychological injury?

7. The appellant alleged that in reaching his conclusion that the appellant did not suffer a psychological injury arising out of or in the course of his employment, the Arbitrator erred by preferring Dr Lee’s evidence, because Dr Lee failed to analyse and evaluate the evidence in relation to the worker’s ongoing treatment and prescriptions of medication (Valium, Cymbalta and Zoloft) [103].

8. The evidence of prescription of medication did not advance the worker’s case and, whether or not the Arbitrator took that into account, it could not have amounted to an error that affected the outcome [105]–[106].

9. The appellant’s submission that the Arbitrator failed to consider the fact that the worker was taking antidepressant medication at the time of Dr Lee’s assessment was not supported by any reasoned argument or reference to relevant evidence. There was no evidence that the results of the tests conducted by Dr Lee, on which his opinion was based, were in any way affected by the worker’s medication [107]–[108].

10. The appellant submitted that the Arbitrator erred by failing to properly and adequately analyse the lay and medical evidence and provide adequate reasons for his decision. An Arbitrator’s obligation to give reasons depends on the circumstances of the individual case: Mifsud v Campbell (1991) 21 NSWLR 725. The issue before the Arbitrator was whether the worker had suffered a psychological injury arising out of or in the course of his employment. The Arbitrator exposed his reasoning on the critical issues in dispute and articulated the essential grounds upon which he based his decision (Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247). The Arbitrator’s reasons were adequate in the circumstances [109]–[110].

Was the alleged psychological injury caused by work?

11. The appellant submitted that the mere fact that the worker did not seek medical attention until 8 October 2012 was “not definitive of not having had psychological symptoms over 2012”. The appellant submitted that the evidence of the worker’s general practitioner and Dr Hampshire left it open for the Arbitrator to accept that the worker suffered the symptoms complained of over 2012 [112].

12. No error was identified in the appellant’s submissions as required by s 352 of the 1998 Act. The submission was no more than a plea that the Arbitrator should have viewed the evidence in a way that was favourable to the appellant. The Arbitrator had to determine whether the worker’s psychological condition had been caused by work by reference to the whole of the evidence. He did that and his finding that the worker had not suffered psychological injury arising out of or in the course of his employment with the respondent was open on the evidence and disclosed no error [113], [117].

If Mr Tarif had suffered a psychological injury was it caused by reasonable action taken or proposed to be taken with respect to performance appraisal or discipline?

13. This issue only arises if it is first established that the worker suffered a psychological injury that was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal or discipline. As the Arbitrator found that the necessary causation had not been established, and as that finding has been upheld on appeal, it was not necessary for the President to deal with the s 11A defence, however, for the sake of completeness he did [118].

14. The appellant alleged that the Arbitrator erred in law and fact in determining that the respondent’s actions in calling a performance appraisal meeting were reasonable. He alleged that the evidence established that the intended appraisal “sprang from unreasonable and undue workload(s) imposed on the worker and unreasonable dealings with the worker in his workplace” [119].

15. The Arbitrator set out the principles he intended to follow as identified in Northern NSW Local Health Network v Heggie [2013] NSWCA 255. The appellant did not take any issue with the principles referred to by the Arbitrator. No error of law was identified. The alleged error merely asserted that the Arbitrator should have formed a different conclusion on the evidence. That is a question of fact [120].

16. As observed in Jeffery v Lintipal Pty Ltd [2008] NSWCA 138, the statute does not require “that the action be demonstrated to be ‘unreasonable’ in order for a claimant to succeed, but rather ... that compensation will not be payable if the action were ‘reasonable’”. On the available evidence it was certainly open to the Arbitrator to conclude that it was reasonable for the respondent to investigate, in the manner that it did, issues which predominantly concerned shortcomings in compliance with procedures relating to patient care [126]–[127].

17. Therefore, had the worker established that he suffered a psychological injury by reason of the employer’s conduct in requiring him to participate in a fact finding meeting, the Arbitrator’s conclusion that such conduct was reasonable was a finding which was open on the evidence and disclosed no error [128].