Issue 3: March 2014

Andrews v Rail Corporation NSW [2014] NSWWCCPD 7

Causation of psychiatric injury; reasonable action in respect of discipline; s 11A of the 1987 Act; challenge to factual findings

O’Grady DP

12 February 2014

Facts:

The worker commenced employment as a labourer with the respondent employer on 18 January 1976. Since April 2006 he held the position of Purchasing Officer in the employer’s Business Financial Services and Purchasing Section.

On 26 July 2010, the worker ceased work by reason of incapacity caused by an alleged psychological injury resulting from the nature and conditions of his employment with the employer. The worker alleged that he had been subjected to harassment, bullying and intimidation by members of management. At that time the employer commenced a disciplinary process concerning certain allegations relating to the worker’s conduct.

A claim for workers compensation benefits was declined by the employer on the ground that no relevant injury had been received. In the alternative, the employer argued that the alleged injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to discipline (s 11A).

The Arbitrator made an award in favour of the employer.

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

• failing to give any or adequate reasons for rejecting lay statements;
• failing to accept or give any or adequate weight to unchallenged evidence of the worker;
• failing to accept the unchallenged evidence of the treating general practitioner as to the history of complaints and the genesis of injury and/or gave no proper reasons for finding that the general practitioner’s history and opinion were false;
• failing to give any or adequate weight to the medical and lay evidence that supported a finding that the worker’s psychiatric condition was caused or significantly contributed to by workplace bullying, harassment and/or other workplace stressors in the period 2002 to April 2010;
• erroneously applying s 11A, and
• failing to find that the delay in processing the misconduct inquiry against the worker between April 2010 and about September 2010 was not reasonable conduct within the meaning of s 11A.

Held: The Arbitrator’s determination was confirmed.  

Submissions, discussion and findings

1. The assertion that the Arbitrator’s observations were in any way disparaging of the lay witnesses was rejected. The Arbitrator treated that evidence simply as being the observations made and views expressed by the worker’s colleagues. It was a matter for the Arbitrator to determine the weight to be ascribed to that evidence and no error was demonstrated by the Arbitrator’s characterisation of that evidence as lacking, to some extent, objectivity [61].

2. The Deputy President agreed with the Arbitrator’s conclusion that the evidence did disclose an element of conflict between employees and management regarding involvement of the union and that union membership gave rise to tension and conflict in the workplace. The Arbitrator had to determine whether such conflict had been causative of the worker’s psychological injury. In so far as the rejection of lay evidence was relevant to this point that argument was rejected. The Arbitrator took the lay evidence into account, together with the balance of the evidence and proceeded to examine the medical evidence to determine whether those circumstances were relevant to causation of injury [62].

3. The complaint that the Arbitrator failed to accept or give adequate weight to the worker’s unchallenged evidence was rejected. Whilst ultimately the Arbitrator concluded that the worker’s experience at work during the relevant period was not causative of injury, there was nothing to be found in his reasons which constituted rejection of the worker’s evidence. It was a matter for the Arbitrator to ascribe weight to that evidence and there was no failure by the Arbitrator to take into account the detail found in the worker’s evidence concerning work conditions [64].

4. While the Arbitrator rejected the general practitioner’s evidence he did not find his evidence as to history and expression of opinion to be false. The Arbitrator rejected the inference drawn by the doctor that the discussions had with the worker concerning work conditions were “indicative of psychological disturbance” and stated his reasons for so concluding with clarity. It was the Arbitrator’s task to determine whether the evidence demonstrated that work conditions were causally relevant to the subject injury. In so far as the circumstances in 2002 were relevant to that evaluation the Arbitrator correctly noted that the psychological symptoms then demonstrated related to work conditions quite different to those characterised as intimidation and harassment [65].

5. The Arbitrator’s reasons revealed that he examined in detail the evidence in its totality and those reasons for rejecting the assertion that work conditions were relevant to causation of the condition were plainly stated [66].

6. It was suggested that the Arbitrator had asked the wrong question concerning matters relevant to the application of s 11A. It was found on appeal that the question as formulated by the appellant had been raised by the Arbitrator, albeit in different terms to those appearing in submissions [67]-[68].

7. It was submitted that whilst the institution of the disciplinary process may have been reasonable the manner of execution of that process was not. It was submitted that the delay was protracted and failure to keep the worker informed was unreasonable [70].

8. The question of reasonableness is one of fact, the onus being on the employer to establish that fact, and is to be determined objectively (Northern NSW Local Health Network v Heggie [2013] NSWCA 255; Irwin v Director-General of School Education (unreported CCNSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997)) [73].

9. The Arbitrator’s rejection of the worker’s argument concerning delay was open to him on the evidence and he stated his reasons for so concluding. It could not be said that the Arbitrator had overlooked or given undue or too little weight to relevant evidence in deciding the question of reasonableness (Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505) [74]-[75].

Conclusion

10. The grounds of appeal suggested, essentially, factual error. That error was said to be the Arbitrator’s finding that there was no relevant injury prior to July 2010. The argument advanced as to factual error went no further than to repeat that which was presented before the Arbitrator which had been rejected. Further argument suggested application of a wrong test as to causation and error when addressing the question of reasonableness. In so far as error of law was suggested, the appellant failed to establish any “perverse or unreasonable applications of law to the facts found” (Azzopardi v Tasman UEB Industries LTD (1985) 4 NSWLR 139) [76].

Cooper v Family and Community Services (Ageing, Disability and Home Care) (wrongly sued as NSW Department of Family and Community Services (Ageing, Disability and Home Care)) [2014] NSWWCCPD 8

Interlocutory orders; leave to appeal; dismissal of proceedings by Arbitrator; monetary thresholds not satisfied; s 352 of the 1998 Act

Roche DP

21 February 2014

Facts:

The worker suffered an accepted psychological injury. The dispute related to the worker’s entitlement to weekly compensation and medical expenses in respect of that injury.

At a teleconference held on 6 November 2013, a Senior Arbitrator struck the matter out because it was “…so patently not ready to proceed that it would be inappropriate for it to be set down for hearing”.

The worker filed an appeal in which she asserted that the appeal did “not relate to an interlocutory event” and that the Senior Arbitrator erred in not giving the worker’s solicitor the opportunity to make submissions.

Held: Leave to appeal an interlocutory decision was refused.

Interlocutory decision

1. Section 352(3A) of the 1998 Act provides that there is no appeal under that section against an interlocutory decision except with the leave of the Commission. The Commission “is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute” [11].

2. An order striking out proceedings is an interlocutory order because it has not finally determined the parties’ rights (Shams v Venue Services Group Pty Ltd [2013] NSWWCCPD 57 and Licul v Corney [1976] HCA 6; 180 CLR 213). Though the basis for the strike out order in Shams was different to the basis in the present matter, the principle was the same. That principle was that the order made had not finally determined the parties’ rights [21]–[22].

3. The worker did not advance any reason why leave to appeal should be granted and it was conceded that there had been no determination of the issues in dispute [23].

4. Granting leave to appeal, and upholding the appeal, was neither necessary nor desirable for the proper and effective determination of the dispute. That was because, as in Shams, the Senior Arbitrator made no findings on the merits of the claim and no order made on appeal, if leave were granted, would have advanced the determination of the claim. It would have merely remitted the matter to another Arbitrator. That step could be achieved, without any prejudice to the worker, by the issuing of a fresh application [25].

Challita v Assetlink Services Pty Ltd [2014] NSWWCCPD 9

Appeal to Presidential member; absence of proper grounds of appeal; absence of proper submissions in support of appeal; unmeritorious appeal; s 352 of the 1998 Act; Practice Direction No 6; purpose of supplementary submissions; delay in obtaining transcript; obligation on lawyers to take a note of proceedings

Roche DP

27 February 2014

Facts:

The worker claimed lump sum compensation for an alleged injury to her neck and right shoulder that she said occurred in the course of her employment with the respondent in July 2008. The employer admitted liability for the injury to the right shoulder but disputed that the worker injured her neck.

The Arbitrator was not satisfied that the worker injured her neck in the circumstances alleged and in an extempore decision entered an award for the employer. The worker appealed.

The appeal purported to challenge the Arbitrator’s finding that the worker suffered no injury to her neck in July 2008. The appeal was unsupported by any proper grounds or submissions. The worker reserved the opportunity to make further submissions in support of the appeal once a final transcript of the Arbitrator’s reasons became available.

Held: The Arbitrator’s determination was confirmed.  

Preliminary matter

1. While Practice Direction No 6 makes provision for supplementary submissions to be lodged within 28 days of the date of the Registrar’s letter enclosing a copy of the transcript, it is not an acceptable practice to file an appeal with, in effect, no substantive submissions in support, pending receipt of the transcript. Such a step invariably requires, as occurred in this appeal, a fresh timetable for submissions, which results in an unnecessary delay in the resolution of the appeal and the matter generally [19]. The respondent to the appeal is entitled to know, from the original Appeal Application, the grounds of appeal and the detailed submissions in support [21].

Discussion and Findings

2. The “grounds” of appeal were completely unsustainable and were unsupported by any reasoned argument or analysis. The first “ground” of appeal was virtually incomprehensible. It was assumed that it was a complaint that, as the Arbitrator did not consider the evidence in the statements from the worker and her husband to be “false or misleading”, he erred in not considering the “substantial facts” in those statements [23].

3. The Arbitrator gave careful consideration to the evidence from the worker and her husband. As that evidence was inconsistent with the evidence from the contemporaneous material from her general practitioner, and as the statements had been given four years after the event, the Arbitrator was unable to be satisfied that the worker injured her neck in the circumstances she alleged. Thus, the worker had failed to discharge the onus of proof. That finding was open on the evidence and disclosed no error [24].

4. The second “ground” of appeal, which suggested that the Arbitrator gave a decision contrary to the weight of the evidence, was unsupported by any reference to the evidence or any reasoned argument. The Arbitrator considered the relevant evidence in detail and concluded that the worker had not discharged the onus. His decision was open to him and, rather than being contrary to the weight of the evidence, was consistent with it [25].

Other matters

5. The appeal was completely without merit and had no prospect of success. The first “ground” of appeal was virtually unintelligible and clearly had not been checked before it was filed. Notwithstanding that the Commission allowed time for supplementary submissions, the worker filed no submissions at all. Such conduct of an appeal treats the Commission with contempt and is unacceptable. If, after receipt of the transcript, the appellant did not wish to proceed with the appeal the appropriate course would have been to file an Election to Discontinue Proceedings (Form 14B) [26].

Endeavour Energy v Ohmsen [2014] NSWWCCPD 6

Absence of transcript; failure to provide reasons for decision; need for revocation of order and remitter for hearing afresh

O’Grady DP

4 February 2014

Facts:

In 1990 the worker received an injury when she was involved in a motor vehicle accident which occurred in the course of her employment with the appellant employer. In 2012 a dispute arose between the worker and the employer concerning the worker’s entitlement to weekly compensation and reimbursement of medical and associated expenses which she had claimed. The employer also disputed the worker’s claim that proposed medical treatment, being a trial of sub-occipital nerve stimulation, was, as a result of the subject injury, reasonably necessary medical treatment within the meaning of s 60.

The Arbitrator ordered that the questions raised concerning the proposed medical treatment be referred to an AMS for an assessment. The AMS recommended that the worker undergo the trial.

During further proceedings before the Arbitrator, the worker discontinued her claim for weekly payments but pressed her claim with respect to medical expenses incurred and her claim in respect of proposed treatment. The Arbitrator determined that the proposed treatment (the trial) was reasonably necessary. The employer appealed.

The Arbitrator’s decision, and her reasons for so ordering, were made and delivered in the course of a teleconference of which no recording exists and therefore no transcript was available of the Arbitrator’s reasons for her ultimate orders.

The parties acknowledged during a telephone conference before the Presidential member that no order concerning the worker’s claim pursuant to s 60 in respect of incurred medical and associated expenses was made.

Held: The Arbitrator’s determination was revoked and the matter was remitted back to the Arbitrator for hearing afresh.  

1. The absence of a transcript of the Arbitrator’s Reasons constitutes a constructive failure to provide reasons (Nepean Rubber Moulding Pty Ltd v Veljanoski [2014] NSWWCCPD 3; Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWCCPD 14). The provisions of s 294 of the 1998 Act require that a statement of such reasons be provided. Failure to provide sufficient reasons, as a matter of general principal, constitutes error of law: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 [11].

2. It followed that the Arbitrator’s orders were revoked and remitted back to the Arbitrator for hearing afresh [13], [16].