Issue 10: October 2015

Stella Maris College v Robin-True [2015] NSWWCCPD 57

Second claim for permanent impairment compensation; first claim settled by way of complying agreement; whether second claim prevented by amendments introduced by the 2012 amending Act; ss 66A(3) and 66(1A) of the 1987 Act; Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 applied and followed

Roche DP

28 September 2015

Facts:

This appeal challenged a Senior Arbitrator’s decision that, notwithstanding s 66(1A), a worker who claimed and was paid permanent impairment compensation pursuant to a complying agreement is entitled to bring a second claim for such compensation because of a deterioration in the worker’s condition.

Since the Senior Arbitrator’s decision, the Court of Appeal authoritatively determined the issue in dispute in favour of the appellant: Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (Cram Fluid).

On 17 August 2009, the respondent worker injured her right knee when she fell in the course of her employment with the appellant employer.

On 30 November 2012, the worker claimed permanent impairment compensation for a 12 per cent whole person impairment as a result of her injury. The appellant accepted that claim and the parties entered into a complying agreement under s 66A, dated 17 January 2013, that provided for the payment of $17,050 in respect of the 12 per cent whole person impairment. On 13 September 2013, the worker underwent a total right knee replacement operation. On 8 May 2014, the worker was assessed to have a whole person impairment of 32 per cent as a result of her right knee injury.

The worker commenced proceedings in the Commission seeking additional lump sum compensation of $46,200 in respect of an additional 20 per cent whole person impairment.

On the Senior Arbitrator’s construction, s 66A(3) had continued operation unrestrained by s 66(1A) and that s 66(1A) should be read as subject to s 66A(3).

On 21 May 2015, the Commission issued a Certificate of Determination remitting the matter to the Registrar for referral to an AMS to assess whole person impairment of the right knee resulting from injury on 17 August 2009. The employer appealed.

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

• s 66(1A) was a later enactment to s 66A(3), which was a separate subject, and that the maxim generalia specialibus non derogant applied;
• s 66(1A) should be read subject to s 66A(3), and that there is an inconsistency between the two provisions, and
• compensation sought under s 66A(3)(a) and (b) requires the making of a further claim, and that the construction of the provision contended for by the appellant would lead to consequences that are “irrational and unjust”.

Held: The Arbitrator’s determination was revoked.  

Preliminary matters

1. Though the decision was an interlocutory decision, leave to appeal was granted as the issue in dispute had been authoritatively determined by Cram Fluid in favour of the appellant, and as the resolution of the appeal in favour of the appellant would eliminate the need for a medical assessment by an AMS, it was necessary and desirable for the proper and effective determination of the dispute that leave to appeal be granted [26].

Findings and conclusions

2. It was not accepted that Gleeson JA’s observations in Cram Fluid on the operation of s 66A(3), in the light of the amendment to s 66, were obiter dicta and therefore not binding on the Commission. The parties made detailed submissions on the operation of s 66A(3) and the effect of s 66(1A) on it. Though the appeal could have been disposed of on a narrower basis, namely the interpretation of the relevant transitional provisions, Gleeson JA dealt with the merit of Mr Green’s alternative argument. That was an essential part of the decision, though not the only part, and it clearly bound the Commission [49].

3. If Gleeson JA’s observations on s 66A(3) were only obiter dicta, the comments were considered dicta given after hearing argument on the issue. While a mere passing remark on a matter that the parties have not argued is one thing, a considered judgment on a point fully argued is another (Brunner v Greenslade [1971] Ch 993 at 1002–3). As observed by Heydon J in the article Limits to the Power of Ultimate Appellate Courts (2006) 122 LQR 399 at 415 footnote 114, “[a] statement of this kind has judicial weight nearer to that of a ratio decidendi than an obiter dictum” [50].

4. Moreover, “seriously considered dicta” by an appellate court, which is not “plainly wrong”, should be accepted by a lower court (or tribunal) (Macfarlan JA (Leeming JA and Bergin CJ in Eq agreeing) in Kendirjin v Lepore [2015] NSWCA 132 at [33]) [51].

5. It followed that however logical and persuasive the Senior Arbitrator’s reasoning may have been, it could not stand in light of Cram Fluid. That was so regardless of the fact that the Senior Arbitrator considered several matters that the parties (apparently) did not submit on in the Court of Appeal [52].

6. The issue in this matter was indistinguishable from the issue determined by Cram Fluid and, absent a successful appeal to the High Court, the Commission was bound to apply the law stated in that decision. That led to only one conclusion: the appeal had to succeed and, having already made one claim for permanent impairment compensation, the worker was not entitled to make a second [53].

7. The worker’s alternative argument was not accepted. That argument was that the current claim was not a fresh claim but was an application for a variation of the original claim and therefore did not require a further “claim”. As explained by the Senior Arbitrator, the worker’s current claim was a claim for a monetary benefit under the legislation. Such a claim for compensation must be, and was, the subject of a “claim” for that benefit [54].

8. The Senior Arbitrator’s finding on this point was consistent with Gleeson JA’s observation (at [108] in Cram Fluid) that the Commission’s power to award additional compensation under s 66A(3)(c) is not independent of a worker’s entitlement to receive compensation under s 66, which requires that a “claim” be made, and with Emmett JA’s observation (at [11]) that Mr Green’s first claim was a “totally separate and discrete claim” from his second claim [55].

Amalgamated Pest Control Pty Ltd v Chaaya [2015] NSWWCCPD 53

Whether claimant a worker or, in the alternative, a deemed worker under the 1998 Act; consideration of the relevant indicia; consideration of the “ultimate question”, namely, whether the claimant worked in and for his own business or in the business of another; application of principles in Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366; 279 ALR 341; whether claimant carried on a trade or business; application of principles in Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389

Roche DP

3 September 2015

Facts:

This matter was an appeal against an Arbitrator’s finding that the claimant was a worker within the meaning of that term in s 4 of the 1998 Act.

The appellant is in the pest control business, conducting its business by issuing licences to licensees wishing to carry on a pest control business in accordance with what it described as “the System and the Image”.

The claimant entered a “Technician Licence Agreement” (the Agreement) with the appellant on or about 19 April 2010. The Agreement described the claimant as the “Licensee” and the appellant as the “Licensor”. While performing work as a pest controller under the Agreement, the claimant injured his back. He claimed compensation from the appellant on the ground that he was either a “worker” or a deemed worker under cl 2(1) of Sch 1 to the 1998 Act. The appellant argued that the claimant was an independent contractor.

On 20 April 2015, the Arbitrator determined that the claimant was a worker employed by the appellant and, therefore, entitled to benefits under the legislation. The Commission issued a Certificate of Determination ordering the parties to file an agreed schedule of the appropriate compensation payable and remitted the claim for lump sum compensation to the Registrar for referral to an AMS. The Arbitrator did not determine, if he was wrong on the worker issue, the issue of whether the claimant was a deemed worker. The employer appealed.

The issues in dispute on appeal were whether the Arbitrator failed to “properly consider” the evidence relating to: control; hours of work; income tax and other taxation arrangements; the delegation of work; the right to dismiss; the mode of remuneration; and whether he failed to give “any consideration” to evidence relating to the: maintenance of equipment; obligation to work; provision of holidays; obligation to secure insurance; creation of a saleable asset; control the claimant had over how the work was to be done and the pricing of particular jobs; fact that there was no payment of superannuation entitlements made on behalf of the claimant, and fact that there was no industrial award covering the claimant.

Held: The Arbitrator’s determination was confirmed.  

Applicable law

1. The Arbitrator said that it was necessary to have regard to not only the indicia “but to the totality of the relationship, looking beyond and beneath the documents”. Relying on Bromberg J at [204], [207]–[208] in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366; 279 ALR 341 (On Call Interpreters), the Arbitrator concluded that that “the ultimate question, or the focal point, is rooted fundamentally in the question as to whether a person is providing services to another business as part of his [or her] own business or whether he [or she] was working in that other business” [25], [27].

2. The test stated in On Call Interpreters is substantially the same as thatstated by McColl JA in Australian Air Express Pty Ltd v Langford [2005] NSWCA 96. The appellant did not submit that the Arbitrator applied the wrong test or that the statements by Bromberg J in On Call Interpreters were not a correct statement of the principles to be applied [31].

Control

Customers

3. Given the definition of “Customer” in the Agreement, and given that the claimant was not to perform any work or services for persons who were not customers, unless otherwise approved by the appellant, and given that the appellant decided which customers were referred to the claimant, the claimant was clearly not free to work for anyone he chose, as an independent contractor or entrepreneur could do. In other words, unlike an independent contractor, he had no customers of his own. The critical point was that all “customers” were the appellant’s customers [42], [45].

Vehicle

4. While it was correct that there was no express prohibition on the claimant using his vehicle other than in the performance of his duties for the appellant, given the tight controls on how the vehicle was to be “constructed, painted, signed, equipped and outfitted”, it was difficult to see how, in a practical sense, the claimant could have used his vehicle other than in the performance of the appellant’s business. The fact that the claimant provided his own vehicle was not a factor that pointed decisively to him being an independent contractor [51]–[52].

Tools and equipment/maintenance of equipment

5. It was clear that, reading the Arbitrator’s decision as a whole, he did not regard the provision of equipment as determinative. That involved no error. Normally, the provision by the claimant of his or her own tools and equipment indicates that the person is an independent contractor (Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 (Hollis) at [56]). However, that is not always so. The equipment was not the claimant’s to do with as he pleased. The appellant exercised significant control over the use and maintenance of the equipment. This did not support a conclusion that the claimant was an independent contractor running his own business. It followed that if the Arbitrator failed to consider maintenance of equipment, it did not matter because this point did not advance the appellant’s position on appeal [62]–[63], [65].

Power to terminate/right to dismiss

6. The Minimum Performance Criteria, the Amalgamated Operating System, and the System were all interrelated to ensure, among other things, a “consistent high quality approach to customer service”. It followed that, given the consequences if the claimant did not meet the Minimum Performance Criteria, or comply with any directions issued under cl 3 of the Agreement, the appellant’s right to terminate the contract under cl 3.5(1) was, as the Arbitrator found, analogous to an employer’s power to terminate an employee. Similarly, the appellant’s powers under cl 3.2 and 3.3 were similar to an employer’s power to performance manage a poor performing employee. An independent contractor would not be subject to such controls [78].

7. This conclusion was not eroded by describing the contract as a commercial arrangement. The labels used to describe the parties are of little assistance if they “are inconsistent with the real substance or reality of the relationship” (On Call Interpreters at [246]. See also R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Limited [1952] HCA 10; 85 CLR 138 per Dixon, Fullagar and Kitto JJ at 151). Consistent with these authorities, and given the reality of the arrangement in the present case, it was found that cl 20 (which said that no relationship of employment was intended or implied) was of no effect [79], [171].

ABN and tax arrangements

8. The Arbitrator’s significant finding was that, though the claimant had an ABN, he had no business name and he had been required to get an ABN at the direction of the appellant. Both of those observations were correct, but neither was determinative of whether the claimant was an employee and the Arbitrator did not suggest that they were (see On Call Interpreters at [244] and ACE Insurance Ltd v Trifunovski [2013] FCAFC 3 at [37]). The requirements in cl 31.4 of the Agreement suggested a high degree of control over the claimant and, though not determinative, were not consistent with the claimant operating an independent business [85], [89].

Conclusion – control

9. The appellant exercised considerable direct control over the claimant in several important areas. This was a strong indicator that the claimant was an employee. However, that did not determine the matter because, as the authorities make clear, “the modern approach is multi-factorial” (On Call Interpreters at [204]) and required further examination of the parties’ arrangements [90].

Hours of work/obligation to work

10. The Arbitrator’s misstatement about the claimant working “set hours” (at [106]) made no difference to the outcome. That was because it did not matter that the claimant did not work “set hours”. The lack of set hours is not demonstrative of a lack of control (Wesfarmers Federation Insurance Ltd v Stephen Wells t/as Wells Plumbing [2008] NSWCA 186 at [69]–[72]). Of more significance was the fact that the claimant worked regular and consistent hours for the appellant and that he worked for no one else [101].

11. While it was correct that there was no evidence that the appellant dictated the hours the claimant was required to work or the amount of work he was to undertake, Mr Farr’s evidence that “[t]here was a general expectation that licensees would be available for 6 days a week in summer and 5 days in other seasons” was inconsistent with his further statement that each licensee had the right to refuse jobs, something that the claimant disputed. It was held that it was difficult to see that the claimant was free to refuse jobs at will [103], [106].

12. As observed (at [267]) in On Call Interpreters, while a lack of obligation to work is a feature of an independent contractor it is also a feature of casual employment (Sgobino v State of South Australia (1987) 46 SASR 292). Therefore, even if Mr Farr’s evidence was accepted, it would not, looking at the totality of the arrangement, lead to a different outcome [107].

13. It was also open to the Arbitrator to conclude that, “[a]pplying the test, the work did have the appearance that [the worker] was working as a representative of the business receiving the work, that is to say, the [appellant]”. The Arbitrator’s reference to “the test” was a reference to the test applied in On Call Interpreters [108].

Holidays/sick leave

14. It was not disputed that the absence of such provisions is a relevant indicator of the type of relationship entered. However, it is not determinative. Reliance on these factors may involve circularity of reasoning (see On Call Interpreters at [219], citing Hollis at [37]). What was important was that, as the Arbitrator correctly found, the claimant worked as a representative of the appellant’s business. That finding was open on the evidence and was, in the circumstances, critical to the outcome [110]–[112].

Delegation of work

15. The Agreement significantly restricted and controlled the power of delegation. The claimant could only delegate work to people trained in the appellant’s system. Such people had to wear the appellant’s uniform. Moreover, they had to be “supervised at all times”. Such restrictions on the power of delegation were not consistent with the normal operation of an independent contractor, who is free to employ whomever he or she wishes and on such terms and conditions as he or she wishes. Consistent with On Call Interpreters (at [284]), the absence of delegation tended strongly against the conclusion that the work provided was performed in and for the claimant’s own business [117]–[120].

Mode of remuneration

16. The critical facts were that, consistent with Mr Farr’s evidence, all money received for work done by the claimant was credited to an account run by the appellant called the “Open Account”. After making numerous deductions (as per the Agreement), the appellant returned to the claimant about 48 per cent of the gross takings from his work. The Arbitrator’s conclusion at [112], based primarily on the fact that the appellant received the income generated by the claimant’s labour, either directly from the customer, or via the claimant, which it then disbursed to the claimant, after deductions, was open on the evidence and disclosed no error. While it was accepted that the appellant did not pay the claimant a wage, the method of remuneration adopted strongly supported the Arbitrator’s conclusion that the claimant was an employee [128]–[130].

17. Invoices were issued on the appellant’s letterhead. Though the claimant’s name appeared on the invoices, as Licensee, all contact details on the invoices were the appellant’s. The appellant kept control of all revenue and was responsible for collecting any outstanding debts. None of these matters were compatible with the claimant being an independent contractor running his own business [131].

Insurance

18. It was correct that the Arbitrator did not expressly deal with the fact that the Agreement required the claimant to have his own insurance (often a requirement for independent contractors). On its own, that fact was not determinative, and the Arbitrator’s failure to refer to it was of no consequence [135].

Asset/sale of licence/goodwill

19. It was difficult to see how any Licensee could realistically build goodwill in the “business” that would have any saleable value. Other than his utility vehicle (which had the appellant’s sign writing and logo on it), which depreciates, there were no “business” assets that the claimant could expect to sell at a profit. The benefits flowing from good work by the claimant and customer satisfaction were benefits that flowed to the appellant. With respect to any intellectual property or innovations that a Licensee may develop, the Agreement required the Licensee to assign all of the Licensee’s rights to, and intellectual property in, to the appellant [143], [145]–[146].

Control of work practices and price

20. The appellant allocated the work to the claimant. The suggested freedom given to a Licensee to vary the times when a job was to be done was restrained by the obligations in cl 7. An independent contractor would not be subject to such restraints. Given the close degree of control exercised by the appellant, it was inconceivable that the claimant was free to set any fee he chose for domestic customers. Any suggestion that there was even scope for the claimant to adopt his own “work practices” was untenable. The evidence of work practices pointed strongly to the claimant being an employee. The Arbitrator’s conclusions were clearly open on the evidence and disclosed no error [152]‑[153], [155], [158]–[159].

Conclusion on worker

21. Notwithstanding that the Arbitrator misstated the evidence on some points, and did not expressly deal with some of the indicia, the compelling conclusion, having regard to the totality of the relationship, and applying the relevant authorities, was that, as the Arbitrator found, the claimant did not conduct a business and that he was a worker employed by the appellant under a contract of service [175].

Deemed worker

22. If the Arbitrator erred in finding that the claimant was a worker, the Deputy President considered if he was a deemed worker. To rely on the deemed worker provision (cl 2 of Sch 1 to the 1998 Act), a claimant must establish:

• he (or she) was a party to a contract with the respondent to perform work;
• the work exceeded $10 in value;
• the work is not work incidental to a trade or business regularly carried on by the applicant in his (or her) own name or under a business or firm name, and
• the applicant has neither sublet the contract nor employed workers in the performance of it (Scerri v Cahill (1995) 14 NSWCCR 389).

As it was conceded that the claimant was a party to a contract to perform work that exceeded $10 in value, the last issue was whether the work was incidental to a trade or business regularly carried on by the claimant [179]–[180].

23. Considering the totality of the arrangement, it was held that the claimant was not regularly conducting a trade or business (Turner v Stewardson [1962] NSWR 137; Higgins v Jackson [1976] HCA 37; 135 CLR 174; Cam v Cousins Interstate Transport Pty Ltd [1964] NSWR 1288; Wathen v AUT Holdings Pty Ltd [1977] 51 WCR 1; Coleman v Grafton Greyhound Racing Club (1955) 55 SR (NSW) 214). It followed that the work he performed when he was injured was not work incidental to a trade or business regularly carried on by him in his name or a business or firm name. He was doing work for the appellant as part of the appellant’s business [180], [191].

24. The claimant’s relationship with the appellant was clearly “special or particular” (Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389 at 401) and he did not perform work successively or concurrently for his customers in the course of a trade or business. The claimant had no customers and no independent business outside of the work he did for the appellant. That finding, together with the appellant’s concession, brought the claimant within the ambit of cl 2 of Sch 1 [192].

25. The evidence clearly established that the claimant did not sublet the contract or employ any worker. Although the Agreement permitted the claimant to sublet the contract or employ any worker, the disentitling provision was not relevant as the claimant did neither [193].

26. It followed that, if the Arbitrator erred in finding the claimant to be a worker, he was a deemed worker under cl 2 of Sch 1 and entitled to the benefits under the legislation [194].

Lagana v Australian Retirement Partners Realty Pty Ltd [2015] NSWWCCPD 55

Claim for permanent impairment compensation; injury; whether worker suffered an injury as defined or merely a consequential condition; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 discussed; s 4 of the 1987 Act; role of Commission and Approved Medical Specialist in assessing permanent impairment as a result of injury

Roche DP

17 September 2015

Facts:

The worker was a personal care assistant at the Grange Retirement Village at Waitara for the respondent. On 28 December 2010, she injured her back while pulling a fold-up bed up a step (the 2010 injury). The respondent’s insurer accepted liability for that injury and paid compensation. The worker underwent an L5/S1 discectomy and S1 nerve root rhizolysis on 2 May 2011 for that injury.

On 30 July 2012, the worker claimed compensation under ss 66 and 67 of the 1987 Act. On 23 October 2012, an AMS assessed the worker to have a 14 per cent whole person impairment as a result of the 2010 injury.

Also on 23 October 2012, at about 8 pm, the worker slipped and fell while carrying two bags of garbage down stairs in the course of her employment with the respondent (the 2012 fall). Her evidence was that she “miscalculated the ground as [she] had been experiencing numbness / a loss of feeling in [her] right heel” because of her 2010 injury.

On 27 May 2013, the worker underwent an L3/4 laminectomy and fusion.

On 6 June 2013, the worker settled her claim for lump sum compensation for her 2010 injury for 14 per cent whole person impairment plus $16,000 for pain and suffering.

On 8 August 2014, the worker claimed lump sum compensation for a 32 per cent whole person impairment in respect of the 2010 injury. The insurer disputed liability, asserting that the worker had made one claim for permanent impairment compensation and was not permitted to make another. In an Amended Application to Resolve a Dispute the worker deleted reliance on the 2010 injury and alleged that she injured her back when she fell down the stairs at work on 23 October 2012. She claimed lump sum compensation in respect of a whole person impairment of 23 per cent and hospital and medical expenses of $7,501.

The Arbitrator held that the fall in 2012 resulted from the injury in 2010. As the worker had already made one claim for permanent impairment compensation in respect of the 2010 injury, s 66(1A) precluded her from making “a further claim for permanent impairment compensation that results from that injury”. An award was entered in favour of the respondent in respect of a s 66 claim. There was no order made regarding the worker’s claim under s 60. The worker appealed the award under s 66.

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

• failing to consider whether the worker sustained an injury, as pleaded, within the meaning of s 4 of the 1987 Act;
• failing to consider whether the injury pleaded was a personal injury for the purposes of s 4 of the 1987 Act;
• failing to consider whether, under s 9A of the 1987 Act, the worker’s employment was a substantial contributing factor to the pleaded injury;
• failing to consider the nature of the work performed at the time of injury or the particular tasks of that work;
• treating as decisive, without referring to the elements of ss 4 and 9A, the worker’s pre-existing right heel numbness;
• failing to give sufficient weight to the worker’s short supplementary statement or to Dr Endrey-Walder’s history, which both referred to the duties performed at the time of the 2012 fall;
• if she found that the worker suffered an injury on 23 October 2012, determining the degree of permanent impairment otherwise than in accordance with Ch 7 of the 1998 Act and failing to remit the dispute to the Registrar for referral to an AMS;
• proceeding on the basis that two injuries had been pleaded;
• taking into account and treating as relevant the worker’s potential compensation entitlements for the 2010 injury, and
• misstating and misapplying the applicable law relating to the causal link between injury and benefits.

Held: The Arbitrator’s determination was revoked.  

Submissions, discussion and findings

1. The Arbitrator erred in her approach and conclusion. The Arbitrator’s statement at [96], that she needed to consider whether the impairment claimed resulted from the 2010 injury or the 2012 fall, involved a misstatement of an Arbitrator’s role in a claim for permanent impairment compensation. It was not for the Arbitrator to determine whether the permanent impairment for which the worker had claimed compensation resulted from the 2012 fall or from the 2010 injury. An AMS must determine that question and an AMS’s assessment will be conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of an injury (s 326(1) of the 1998 Act). The Arbitrator’s role was to determine if, in the 2012 fall, the worker received an injury within the meaning of s 4 of the 1987 Act. The Arbitrator did not consider that question [43]–[45].

2. On any view of the evidence, the worker suffered a personal injury in the course of her employment with the respondent in the 2012 fall and the Arbitrator erred in not making that finding. It did not matter that the numbness in the worker’s right heel played a role, even a substantial role, in causing her to fall. Nor did it matter that she had fallen in January 2012 because of the numbness in her right heel. It is trite law that an injury can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; Calman v Commissioner of Police [1999] HCA 60, 19 NSWCCR 40; ACQ Pty Ltd v Cook [2009] HCA 28; 237 CLR 656 at [25] and [27]) [46].

3. The worker fell at work on 23 October 2012 while doing her normal work duties and sustained injury to her back and other parts of her body. She fell partly because of the numbness in her heel, which contributed to her clipping her heel on the stairs, and partly because she was carrying two bags of garbage (one in each hand) and could not save herself from falling, and because of the general circumstances of her duties, which required her to carry garbage down steep, narrow stairs. That was undoubtedly a s 4 injury that was received in the course of her employment. There was also no doubt that the worker’s employment was a substantial contributing factor to her 2012 injury [47]–[48].

4. A work injury is still a s 4 injury though a previous work injury may have contributed to the particular injurious event (in this case, the fall down stairs) for which compensation is claimed. If the two events had occurred with different employers, there may have been arguments about apportionment of liability for the compensation payable, but it could not be seriously argued that the worker did not suffer a s 4 injury when she fell at work in 2012. Employers take their employees as they find them (State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; 5 DDCR 286 at [40]) [49].

5. The contention that the worker could not succeed because the 2012 fall resulted from the 2010 injury misconceived the principles involved [50].

6. As the insurer disputed the degree of permanent impairment that had resulted from that injury, the matter was remitted to the Registrar for referral to an AMS for that assessment [54].

Chamma v P & M Quality Smallgoods Pty Ltd t/as Primo Smallgoods [2015] NSWWCCPD 58

Claim for permanent impairment compensation; injury; whether worker suffered an injury as defined or a consequential condition; challenge to factual findings; whether impairment from the injuries as found sufficient to satisfy threshold requirements; s 66(1) of the 1987 Act

Keating P

29 September 2015

Facts

The worker suffered an accepted injury to his lower back when he lifted a large plastic roll in the course of his employment on 29 December 2010. Liability for the back injury was not in issue. The Arbitrator rejected the worker’s allegation that he also sustained injuries to the neck and shoulders in the subject incident or that, in the alternative, he developed symptoms in his neck and shoulders as a result of treatment for the accepted back injury.

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

• finding that the worker’s statements were completely inconsistent;
• finding that the medical history provided by the worker was inconsistent;
• failing to give reasons why alleged complaints of neck and shoulder pain did not result from the pleaded injury, and
• declining to remit the claim for whole person impairment of the lower back (alleged to be less than 11 per cent) to the Registrar for referral for assessment by an AMS.

Held: The Arbitrator’s determination was in part revoked by consent.

The finding that the worker’s evidence was inconsistent (ground (a))

1. The appellant submitted that the absence of initial complaints of neck and shoulder pain were explained by the severity of the symptoms in the lower back overshadowing any complaints of neck and shoulder pain. However, the worker never provided that information as an explanation for the absence of initial complaints in respect of the neck and shoulders. In addition, there was no evidence to support the submission [41].

2. Although this ground of appeal concerned the Arbitrator’s alleged error in terms of her findings that the worker’s statements were inconsistent, the submissions focused on the medical history the worker provided to his treating doctor. The appellant’s submission that the treating doctor was sufficiently concerned about the neck and shoulder pain by November 2011 that he arranged for radiology to be undertaken lacked forced. This was because almost a year had elapsed since the incident before the symptoms in the neck and shoulders were sufficiently severe to warrant any form of investigation [43].

3. The respondent accepted that the worker made complaints in relation to pain in the neck and shoulders in April 2011. However, it was the absence of complaints between December 2010 and April 2011 that the Arbitrator determined, correctly, was inconsistent with the worker’s evidence that the injuries to the neck and shoulders were sustained in the incident on 29 December 2010 [44].

4. The worker’s evidence was “completely inconsistent”. It was not until his fourth statement that he attributed his complaints of neck and shoulder pain to his treatment for his back. Until that time he had maintained that his neck and shoulders were injured in the initial incident on 29 December 2010, notwithstanding an absence of any symptoms for many months after the alleged injury [45].

5. The submission that the Arbitrator erred by concluding that the worker’s statements were inconsistent was not made out [46].

Did the Arbitrator err in finding that the medical history provided by the worker was inconsistent? (ground (b))

6. The President set out the inconsistences in the medical evidence. He then found that given the conflicting state of the medical evidence, which the Arbitrator dealt with and summarised, the Arbitrator’s findings were clearly open to her [50]–[51].

7. The President rejected the appellant’s submission that the absence of complaints of neck and shoulder pain occurred because of “an absence of applied forensic effort”, in recording complaints of the neck and shoulders due to the relative severity of those symptoms compared with the more dominant symptoms in relation to the back. The worker had every opportunity to complain if he was suffering from symptoms in his neck and back following the injury on 29 December 2010. Notwithstanding numerous visits for treatment of his lower back condition in the months following the incident, the worker made no attempt to complain to anyone of symptoms related to his neck and shoulders. This was confirmed by the medical evidence of two treating doctors [47], [52].

Did the Arbitrator fail to give adequate reasons with respect to the alleged consequential conditions? (ground (c))

8. The worker’s claim failed because he failed to satisfy the onus to establish that he injured his neck and shoulders in the incident in December 2010 or that his symptoms developed as a result of treatment for his back injury [58].

9. The Arbitrator adequately exposed her reasoning process for the decision reached. Essentially, those reasons were that she was not satisfied that the worker sustained injuries to his neck and shoulders in the alleged incident or that he suffered any consequential condition arising from treatment of his back injury. That was because of inconsistency in the worker’s own evidence, the inconsistency in the histories provided to the numerous medical practitioners who assessed him, and the inconsistent opinions of the medical witnesses on the question of causation (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 applied) [59]–[62].

The findings with respect to the referral of the question of whole person impairment to an AMS (ground (d))

10. The initial claim made by the worker, as quantified by Dr Qidwai, sought compensation based on a final combined whole person impairment of 28 per cent, which comprised of assessment of impairments to the lower back, cervical spine, activities of daily living, left and right shoulders. The lower back was assessed at 10 per cent and activities of daily living were assessed at two per cent. It followed from the doctor’s description of the activities of daily living that he considered that the worker’s activities of daily living were impaired by reason of the accepted injury to his back. It was therefore reasonable to infer that some proportion, if not all, of the amount assessed for difficulties associated with activities of daily living related to the back. It followed that the worker’s claim for whole person impairment as a result of his back injury exceeded the threshold under s 66 and there was no impediment to the referral of the back injury for assessment [63]–[66].

11. The parties agreed that this ground of appeal must be upheld and the matter must be referred to the Registrar for referral to an AMS for assessment of the impairment of the lower back. All other submissions under this ground were withdrawn [68].

Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56

Whether worker suffered a psychological injury; whether Arbitrator erred in assessing claim as two separate and discrete injurious events rather than as the cumulative effect of many events over time; absence of complaint to general practitioner; application of principles in Attorney General’s Department v K [2010] NSWWCCPD 76; assessment of evidence; credit findings; whether credit findings contrary to incontrovertible facts; application of principles in Fox v Percy [2003] HCA 22; 214 CLR 118; failure to consider expert evidence from treating psychiatrist; assessment of expert evidence generally; relevance of worker’s application for re-employment with respondent after ceasing work

Roche DP

24 September 2015

Facts:

The worker was a general hand with the respondent, performing the duties of mowing and general cleaning and maintenance at the respondent’s Woronora Cemetery.

He alleged that he suffered major depressive disorder due to numerous events that occurred in the course of, or arose out of, his employment with the respondent from 5 March 2013 to 25 September 2013. He alleged that, in this period, he was subjected to numerous instances of bullying and harassment, particularly (but not only) at the hands of a co-worker at the cemetery.

The problem came to a head on 26 September 2013, when a Constable Taylor contacted the worker, investigating an allegation by the co-worker that the worker had falsely reported him to the police for carrying a gun in his vehicle and of having had an association with a bikie group. The worker immediately stopped work and attended his general practitioner. He did not return to work.

Statements from co-workers tendered on behalf of the respondent disputed some of the worker’s assertions, but (significantly) conceded many others.

The Arbitrator found that the “perceived slights, snubs, discrimination and victimisation” alleged by the worker “did not occur”. He added that, irrespective of that finding, the worker suffered no psychological injury, which was “evidenced by the fact that he did not consult his general practitioner at any time in respect of such injury up until 26 September 2013”. On 16 June 2015, the Commission issued a Certificate of Determination finding that the worker did not suffer injury arising out of, or in the course of, his employment with the respondent and entered an Award for the respondent. The worker appealed.

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

• considering whether the worker suffered injury by reference to two distinct periods, namely the period up to 26 September 2013 and the incident on that day;
• relying on the absence of any complaint by the worker to his treating general practitioner up to 26 September 2013, as the sole basis for finding that the worker suffered no psychological injury during that period;
• failing to give adequate reasons for not accepting that many, if not most, of the events complained of by the worker actually occurred, or occurred in the way in which the worker related, and his finding in that regard is against the weight of evidence;
• misapplying the test in Attorney General’s Department v K [2010] NSWWCCPD 76 (K);
• accepting the opinion of Dr Newlyn (consultant psychiatrist qualified by the respondent) over those of the worker’s experts (Dr Westmore, forensic psychiatrist qualified by the worker’s solicitors and Dr Stevans, his treating psychiatrist);
• palpably misusing his advantage (in seeing the worker give evidence) in making adverse findings as to the worker’s credit, and
• admitting into evidence part of a letter from Cheryl Williams (the respondent’s human resources manager) dated 13 May 2015, after evidence had closed and the worker’s solicitor had made his submissions.

At the oral hearing of the appeal, it was alleged that the Arbitrator erred in two additional respects: first, in finding that the worker’s application for re-employment with the respondent in 2014 indicated that he was not psychologically ill such as to prevent him from resuming employment with the respondent and, second, in finding that the worker’s oral evidence about that application was inconsistent with Ms Williams’ statement in Ex A.

Held: The Arbitrator’s determination was revoked.  

Ground 1: the two distinct periods

1. It was necessary for the Arbitrator to determine the case presented to him. He did not do that. He wrongly approached the case on the basis that the worker alleged that he suffered injury due to two separate and discrete injurious incidents or episodes; the bullying and harassment up to 26 September 2013 and the phone call from Constable Taylor on 26 September 2013, which the Arbitrator considered separately and independently from the first [72]–[73].

2. The Arbitrator added that the worker was upset by the phone call from Constable Taylor and that it was the catalyst for him going off work on 26 September 2013. He did not accept the worker’s assertion that the phone call took the bullying and harassment to a new level. This statement missed the critical point [74].

3. The worker clearly perceived the giving of his name to the police (by the co-worker) to be a hostile action by a co-worker with whom he had been in conflict at work over a considerable period. It was for the Arbitrator to assess the relevance of the phone call against that background. He failed to do that. Instead, he focused on the phone call as if it was a separate and isolated event unrelated to the problems at work over the preceding 18 months. That was not the worker’s case and the Arbitrator erred in treating it as if it was [76].

Ground 2: absence of complaint

4. It was correct that the worker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether the worker suffered a psychological injury as a result of events at work up to and including that date. The lack of complaint to a general practitioner is a factor an Arbitrator is entitled to take into account in considering whether to accept a worker’s assertion that certain events occurred and that they affected the worker in a certain way. However, on its own, the absence of such a complaint to the worker’s general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the Arbitrator erred in treating it as if it was [80]–[81].

5. Whether the worker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. In the circumstances, it was not appropriate to conclude that the worker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013 [82].

6. The Arbitrator’s conclusion, on this issue, really amounted to a finding that he did not accept that the worker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA 199 at [86]) and, to the extent that the Arbitrator thought that such corroboration was necessary, he erred [83].

7. Moreover, as Beazley JA (as her Honour then was) (Campbell and Macfarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA 118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness. Dr Stevans made that diagnosis on 27 September 2013 and the Arbitrator did not properly consider that evidence [84].

Ground 3: failure to give adequate reasons/weight of the evidence

8. Though the Arbitrator did not deal with each of the alleged instances of bullying, he did not accept the worker’s case as to the alleged bullying and harassment. On this issue, he discharged his obligation to explain the basis for his conclusions (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247) [93].

9. The worker’s real complaint was that the Arbitrator’s findings were erroneous on several key issues. More specifically, under this heading, he asserted that the findings at [70] were against the weight of the evidence. This complaint was made out [94].

10. There were a number of difficulties with the Arbitrator’s reasons at [70]. The first sentence at [70] properly acknowledged that the worker had significant personality differences with virtually all of his co-employees. However, the next statement in that sentence, that the worker perceived slights, snubs, discrimination and victimisation where “these did not occur”, was inconsistent with an objective view of the evidence. That was because, while several of the worker’s complaints were challenged in statements by co-workers, many others were conceded. They were real events that occurred at work during work hours [95]–[100].

11. In light of those events, it was not open to the Arbitrator to conclude that the perceived snubs, etc “did not occur” and he erred in doing so. It was clear beyond doubt that, even leaving aside the phone call from Constable Taylor (which the Arbitrator should not have dealt with separately), numerous conflicts occurred at work that created significant tensions. This was confirmed by the evidence from the respondent’s witnesses and by the worker’s numerous complaints about bullying and harassment, which complaints commenced in July 2012. This error alone was sufficient to justify the matter being set aside and re-determined, as it went to the heart of the first step in the assessment of a psychological injury claim, namely, whether real events occurred at work that the worker perceived as creating a hostile work environment. The evidence from the worker’s co-workers established beyond doubt that several events occurred at work that, on any view, created a hostile work environment and the Arbitrator’s apparent finding to the contrary was against the overwhelming weight of the evidence and was erroneous [101], [105].

12. In the fifth sentence of [70], the Arbitrator said that, having regard to the whole of the evidence, he had “significant doubt as to whether many of the events complained of by [the worker] actually occurred, or occurred in the way in which [the worker] relates”. This was a different finding to the one the Arbitrator made in the first sentence at [70], where he said, “these [snubs, etc] did not occur”. Whether the events occurred exactly as the worker described them was not, in the circumstances, critical. What was critical was whether the worker perceived them as creating a hostile work environment. His many complaints to his supervisors about the conduct of the co-workers strongly suggested that he did [104].

13. To the extent that the Arbitrator relied solely on the absence of complaint to the general practitioner to support his finding that the worker suffered no injury, the Arbitrator erred [107].

Ground 4: Attorney General’s Department v K

14. To the extent that the Arbitrator based his conclusions on a finding that “fundamental facts were not proved”, he was wrong. The respondent’s witnesses established the “fundamental facts”. Though the Arbitrator referred to K, he failed to apply the principles discussed in it [113].

15. In a case where it is alleged that a hostile work environment resulted from numerous events over a long period, the claim does not fail because one or two of the alleged events may not have occurred, or may not have occurred exactly as alleged. In such a case, an Arbitrator must assess whether, considering the evidence overall, the worker perceived that a hostile work environment existed. The Arbitrator failed to undertake that exercise [114].

Ground 5: opinions of Drs Newlyn, Westmore and Stevans

16. Dr Newlyn was wrong to separate the allegation of injury into two discrete periods or events. That was not the worker’s case. That did not necessarily mean that Dr Newlyn’s evidence had no probative value. It merely meant that the Arbitrator had to consider Dr Newlyn’s evidence with that caveat in mind. He did not do that. It was wrong to consider the effect of the phone call as a separate and distinct cause of injury. The Arbitrator had to consider the cumulative effect of all of the events at work over the whole period of employment [125].

17. Dr Newlyn’s opinion on causation was based on a false premise. His statement that the worker’s symptoms appeared to be related to anxiety concerning the outcome of the workplace investigations was not an accurate summary of the history. Dr Newlyn’s history was that the worker’s symptoms developed as a result of the workplace bullying and that the investigations merely affected his recovery. Thus, it was inconsistent to conclude that the worker’s problems related to the outcome of the investigations into the claims. Though it was unclear exactly what weight the Arbitrator placed on this part of Dr Newlyn’s evidence, it was clear that he gave it some weight because he quoted (at [76]) Dr Newlyn’s statement that the worker “worries about the outcome of the investigations” and the doctor’s further statement that it was “[t]his worry” that caused him to report multiple symptoms [126].

18. Dr Newlyn’s opinion that there was no “substantive contemporaneous documentation of any psychiatric symptoms or the diagnosis of a psychiatric disorder before 26 September 2013” seems to have assumed that, for the worker to succeed, such documentation had to be available. Such an assumption was erroneous. To succeed, a claim does not have to have substantive contemporaneous documentation of psychiatric symptoms or diagnosis prior to the initial attendance on a doctor. After noting his “reservations” about the worker’s oral evidence, which went only to whether the worker recalled completing the application for re-employment, the Arbitrator (at [74]) expressly agreed with this part of Dr Newlyn’s evidence. He erred in doing so without first considering properly the lay and expert evidence that gave substantial support to the worker’s claim [127].

19. The Arbitrator erred in discounting Dr Westmore’s evidence on the ground that he did not have the co-workers’ statements when he did have them and considered them [131].

20. The Arbitrator said that the worker was noted to be very abusive (and to have said) that Dr Rajan (his general practitioner) would not be his workers’ compensation doctor and (that he) left angry. The Arbitrator did not clarify why this evidence, the context of which the worker fully explained, was “notable and significant”. In these circumstances, to the extent that the Arbitrator relied on it as a ground for rejecting the worker’s claim, he erred because he took into account an irrelevant matter [135].

21. When considering the medical evidence, the Arbitrator focused his attention on the evidence from Dr Westmore and Dr Newlyn, but gave no reasons for rejecting Dr Stevans’ evidence. He did not consider the doctor’s history, findings on examination or his diagnosis. It followed that the Arbitrator failed to consider properly Dr Stevans’ evidence or give any reasons for rejecting that evidence [139].

22. The worker’s complaint that the Arbitrator erred in finding that the worker’s April 2014 application for re-employment with the respondent indicated that he was “not psychologically ill at that time such as to prevent him from resuming employment with the respondent” was made out. The fact that a worker has applied for re-employment with the respondent will rarely establish that the worker is not psychologically ill “such as to prevent him from resuming employment”. The application for re-employment was in the context that the worker said he was “clutching at straws at that time” and “not thinking clearly”. The Arbitrator failed to consider the significance of this evidence [140]–[142].

23. On the issue of whether the illness was such as to prevent the worker from resuming employment, a worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury (Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 at [38]). The Arbitrator had to consider the evidence of the job application, and the context in which it was made, together with the other evidence in the case, especially the evidence from Dr Stevans. He did not do that [143].

Ground 6: The worker’s credit

24. It was accepted that the Arbitrator’s finding that he did not accept the worker’s evidence that he did not remember making the job application was an adverse credit finding. He effectively found that part of the worker’s sworn evidence could not be accepted [152].

25. The issue was whether the worker could be accepted when he said that he could not remember completing the letter that contained the application for re-employment. Having regard to the matters the worker did recall, it was open to the Arbitrator to reject the worker’s evidence that he did not recall completing the job application. It was not accepted that, in making that finding, the Arbitrator “failed to use or palpably misused his advantage” (Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 at 479) [154].

26. However, the Arbitrator did not say that he rejected the worker’s case because he found him to be a witness who lacked credit or who, generally, could not be believed. He rejected the claim for several reasons. Those reasons included the fact that he had “reservations” about the worker’s oral evidence. That evidence only went to the worker’s application for re-employment [155].

27. However, critical parts of the Arbitrator’s reasons, in particular the Arbitrator’s statement that the perceived snubs, etc did not occur were inconsistent with “incontrovertible facts or uncontested testimony” (Fox v Percy [2003] HCA 22; 214 CLR 118 at [27]) from the respondent’s own witnesses. The Arbitrator’s findings, on those matters were therefore erroneous, even if they were based on a credibility finding. If the Arbitrator relied on the adverse credit finding to reject the worker’s assertion that bullying and harassment occurred at work, he erred [156].

28. An adverse credit finding does not mean that the whole of the relevant witness’s evidence must be rejected (Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117) [157].

Ground 7: Cheryl Williams’ letter

29. The admission or rejection of late evidence is a matter for an Arbitrator’s discretion. There was no evidence that the Arbitrator misused his discretion or that the worker suffered any prejudice because of the admission of Ex A. The worker’s solicitor made no application to call evidence in reply, nor did he seek an adjournment to deal with the contents of the letter. The submission that the admission of the letter was grossly prejudicial to the worker was without substance and was rejected [161].

30.The real complaint under this heading was that the Arbitrator wrongly relied on Ex A as evidence of an inconsistency with the worker’s oral evidence. The Arbitrator said that the worker’s oral evidence was that he discussed his immediate past employment with Ms Williams on the phone prior to 14 April 2014 and that that was inconsistent with Ms Williams’ note in Ex A. The Arbitrator erred on this point, as Ms Williams’ evidence was not inconsistent with the worker’s evidence [162], [166].

Hopkins v Achieve Australia Limited [2015] NSWWCCPD 54

Causation of injury; psychological injury; challenge to factual findings; weight of expert evidence

O’Grady DP

4 September 2015

Facts:

The worker was a carer or social educator. His duties required him to supervise and educate individuals, being clients of the respondent, who suffered mental disability. The clients were accommodated in premises provided by the respondent at various locations in suburban Sydney and were the subject of supervision by the respondent’s staff around the clock.

On 9 April 2010 the worker was working at one of the respondent’s homes situated at Bella Vista where one of the resident clients was a recently discharged psychiatric patient. The client became violent and the worker was unable to control him. The worker completed the shift on that day and returned the following day, but found he was unable to continue working because the client in question made him “very stressed” and he was not able to “cope with that client”. The worker was absent from work for four days, during which he received workers compensation benefits.

The worker returned to duty with the respondent and remained in that position until a date in February 2013. In the course of his work, the worker encountered particular difficulties with a client, Mark. It was the worker’s allegation that his work conditions, which included the difficult supervision of Mark and extremely long and taxing hours of work, had resulted in a psychological injury causing incapacity. The worker gave evidence he smoked cannabis to help him relax and get to sleep. The worker had not returned to work since February 2013 by reason of significant ongoing health problems.

The worker first obtained a WorkCover Medical Certificate from his treating psychiatrist, Dr Ben Teoh, who had first been consulted in August 2013. Dr Teoh recorded that the worker suffered from Major Depression and opined that such condition had been caused by his employment, that is, that he had experienced psychological trauma and stress as a result of his work.

Proceedings concerning weekly payments and medical expenses came before the Commission on 23 September 2014, at which time the worker was granted leave to discontinue the proceedings in circumstances where the respondent agreed to make certain payments by consent.

Dr Samuell (clinical and forensic psychiatrist qualified by the respondent) also expressed the opinion that the worker suffered from Major Depression. However, Dr Samuell, in his first report, expressed the opinion that the worker’s cannabis use would have contributed to his depression, but noted that cannabis use had ceased. In his second report, Dr Samuell added that he had seen the worker’s medical history and concluded that it was “self-evident” that the worker’s difficulties well and truly pre-dated his employment. The relevant history was of “psychogenic hyperemesis and cannabis misuse”. Dr Samuell further noted that the worker “sought to revise his history to make it seem as though the cannabis abuse and hyperemesis were consequential of his employment”. In a third report, Dr Samuell opined that any psychological condition suffered by the worker had significant genetic and environmental components.

Payments of weekly compensation in accordance with the agreement continued until 19 February 2015. The worker had earlier, in August 2014, made a claim in respect of lump sum compensation against the respondent. In September 2014, the worker’s solicitors were forwarded a s 74 notice declining liability in respect of the lump sum compensation claim. On 24 September 2013, a notice pursuant to s 54 of the 1987 Act was forwarded to the worker, in which notice was given of the respondent’s intention to discontinue payment of weekly benefits.

The worker filed an Application to Resolve a Dispute in the Commission on 30 October 2014.

On 29 April 2015, the Commission issued a Certificate of Determination, in which it was determined that the worker had not discharged the onus of proof on him to show that he suffered psychological injury arising out of or in the course of his employment and made an award for the respondent. The worker appealed.

The grounds of appeal were whether the Arbitrator erred in:

• finding that the worker had not discharged the onus of proof on him to show that he suffered a psychological injury arising out of and in the course of his employment;
• failing to have regard to the controverted evidence of the nature and conditions of the worker’s employment when having regard to the cause of the worker’s psychological injury;
• failing to determine whether the worker’s use of cannabis arose as a result of the worker’s employment, and
• accepting the pre-injury medical history, failing to consider the circumstances in which those histories were taken and in consequence the reliability of that material.

Held: The Arbitrator’s determination was confirmed.  

Grounds one, two and three

1. The worker’s arguments, it was held, failed to acknowledge Dr Samuell’s view expressed in his report of 21 November 2014, after noting the correct history of the myriad health difficulties experienced by the worker over a protracted period, that it was “self-evident [the worker’s] difficulties well and truly pre-date his employment”. The Arbitrator found that the worker had attempted, unconvincingly in his view, to attribute that THC abuse to work conditions [72].

2. The argument that error was demonstrated by the Arbitrator’s failure to “engage in any analysis of [the work conditions] and their capacity to cause harm to [the worker]” was held to be put in disregard of the true nature of the Arbitrator’s factual conclusion, that being that he was not satisfied on the evidence that it had been proven that there was a causal nexus between the work conditions and the psychiatric state of the worker [74].

3. The worker argued that the Arbitrator had erred in relying upon flawed evidence. Whilst it was correct that the brief reports from Dr Baumgart (the worker’s general practitioner) made no reference to work conditions as being relevant to his diagnosis and suggested treatment, that practitioner had been consulted, it seemed, in relation to allergic responses experienced by the worker. The relevance of Dr Baumgart’s evidence to the factual conclusion reached by the Arbitrator was that, once Dr Baumgart was aware of the worker’s cannabis use, an additional diagnosis of marijuana hyperemesis was made by that practitioner. Treatment in respect of that condition was advised. That second diagnosis coincided with the diagnosis of Dr Samuell following revision of his earlier expressed view and, as stated by Dr Samuell, the worker’s symptoms of depression are related to that illness and not causally related to work. The Arbitrator’s acceptance of that evidence was open to him and no relevant error was made out [76].

4. It was argued that the standards required of an expert witness as stated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 had not been met. It was suggested that Dr Samuell simply rejected the contention that the worker’s “depression is caused by anything other than [his] assumed previous cannabis use.” That submission was rejected given Dr Samuell’s analysis of the known facts, following receipt by him of material that enabled a full and relevant history to be considered. The question as to what weight is to be ascribed to particular evidence is a matter for the Arbitrator. No error concerning the acceptance of Dr Samuell’s evidence was demonstrated. Grounds one, two and three, were not made out [77].

Ground four

5. It was argued by the worker that the fact finding process required of the Arbitrator in the present case was in some way analogous to the fact finding process of a Medical Panel, as in Owen v Motor Accidents Authority of New South Wales [2012] NSWSC 650 (Owen). That argument was rejected. As was demonstrated by Campbell J in Owen, the Panel was charged with the obligation of determining whether a particular injury was “caused or materially contributed to by the motor accident”. As his Honour pointed out (at [50]), the motor accident did not have to be the sole cause, as long as it is a contributing cause, which is more than negligible. His Honour found that the Panel had not directed itself as to the law as required, hence his finding as to jurisdictional error [79].

6. It was open to the Arbitrator to conclude as he did in rejecting the contention that the psychiatric condition suffered by the worker was causally related to his work conditions [80].

7. The difficulty with the worker’s argument that the history taking, as recorded in the various hospital records and elsewhere, should have been assessed by the Arbitrator in a manner which took into account the “context” of the making of those records was that the Arbitrator had, on the evidence available, rejected both the argument concerning causation of the psychological condition and the suggested need to self-medicate. This appeal was not a review or new hearing: s 352(5) of the 1998 Act [81].

8. The conclusion that the worker had not made out relevant factual error was fortified by a careful examination of the records of Dr Bauer and those of the South Pacific Private Hospital which came into being at the very time the worker ceased work. It was significant that whilst a past medical history of depression and anxiety was recorded, there was no recorded description, nor complaint, concerning work conditions with the exception of a reference to working long hours made by Dr Bauer in his letter of referral  [82]–[83].

9. The Deputy President noted that it must be remembered that Dr Teoh was first consulted six months after work ceased and that the worker had had repeated absences from work for treatment in respect of, what was subsequently diagnosed as, cannabis hyperemesis. Having regard to the records before the Arbitrator, it was plainly open to the Arbitrator to conclude as he did concerning the question of causation and the suggested occurrence of injury. This ground was rejected [84].

McLean v Shoalhaven City Council [2015] NSWWCCPD 52

Deemed worker; cl 2 of Sch 1 to the 1998 Act; alleged failure to give reasons; whether worker conducted a trade or business; whether work incidental to a trade or business; relevance of indicia of employment in a claim under cl 2 of Sch 1

Roche DP

2 September 2015

Facts:

The worker supplied a tip truck and driver to the respondent from the mid-1980s until his injury in 2013. On 2 August 2013, the worker sustained injuries when his truck slid off the road and down an embankment. He claimed weekly compensation from 2 August 2013 to 2 August 2014, compensation for medical expenses, and compensation for permanent impairment said to have resulted from his injuries.

The worker’s case was that he was a deemed worker under cl 2 of Sch 1 to the 1998 Act and that he worked “on an almost exclusive basis” for the Council under a Services Agreement.

Before the Arbitrator, the issue was whether the work being performed by the worker at the time of his injury was incidental to a trade or business regularly carried on by him in his own name or a business or firm name. The Arbitrator concluded that the contract between the worker and the Council was not a contract to perform work, as required to come within the terms of cl 2 of Sch 1, but was a contract to “provide a particular truck with a driver”. Consequently, the worker could not come within the terms of cl 2 of Sch 1 and the Arbitrator made an award for the respondent. The worker appealed.

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

• failing to give adequate reasons and explanation for concluding that the worker’s injury occurred in circumstances that were incidental to his business;
• determining that driving the truck was not personal labour under the terms of the Agreement;
• determining that the worker was injured in circumstances that were incidental to the worker’s business;
• failing to appropriately deal with the relevant indicia of employment (indicia of employment), and
• allowing into evidence, as late documents, the statements of lay witnesses (admission of lay evidence).

Held: The Arbitrator’s determination was confirmed.  

Grounds 1, 2 and 3: was the work incidental to Mr McLean’s business

1. The worker’s submissions could not be accepted. The relevance of the worker’s “longevity and permanency” with the Council was not explained with any meaningful submission. To succeed under cl 2 of Sch 1, a claimant must establish the matters listed in Scerri v Cahill (1995) 14 NSWCCR 389 (Scerri). The worker’s counsel had not addressed the terms of that decision or the terms of the legislation. Clause 2 of Sch 1 applies only to claimants who come within its terms [29]–[30].

2. Neither the longevity nor the permanency of the worker’s arrangement with the Council brought him within the operation of the clause. Applying Scerri, the Arbitrator correctly concluded that cl 2 of Sch 1 did not apply to the worker [31].

3. The submission that the Arbitrator’s finding, that the contract was for the provision of a truck and a driver, was “artificial” was unhelpful and made without reference to the Arbitrator’s decision or the evidence [32].

4. The submission that the arrangement (subject to agreed exceptions) was exclusively with the Council was incorrect. The worker did not hire his truck exclusively to the Council. His evidence was that he worked for the Council “on an almost exclusive basis” [36].

5. The worker issued invoices that described himself as a “Sole Trader” and included his Australian Business Number. The invoices established that the worker held himself out as conducting a business [37].

6. It was accepted that the work with Tait Miller McIntyre was minor property maintenance work, which was of a different nature to the services provided to the Council, and that the worker’s activities for Nowra Golf Club were voluntary. However, that did not assist the worker. His business was not exclusively with the Council [38].

7. The Arbitrator was satisfied that the work carried out pursuant to the contract (with the Council) was incidental to a business regularly carried on by the worker for the hire of his truck and the provision of a suitable driver. The worker’s tax records, the invoices, and the worker’s own evidence, which was that he did not work exclusively for the Council, supported that finding [41].

8. The submission that the Arbitrator gave no reasons for his conclusions was incorrect and without substance. The Arbitrator’s reasons adequately explained the basis for the Arbitrator’s conclusions (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). The submission that, with regard to Mr McLean’s activities with the Council, the Arbitrator did not have regard to the regularity of duties, the manner of engagement or the regular method of payment was also incorrect [42]–[44].

9. The relevance of the submission that the worker did his other work “outside normal Council work hours” was unclear. The evidence established that, during the period of the Agreement with the Council, the worker regularly conducted a business of hiring his truck with a driver [46].

10. Even if it was accepted that, contrary to the Arbitrator’s finding, the contract with the Council was for the performance of work by the worker personally, that made no difference to the outcome. The Arbitrator found that the worker conducted a business and that the work he did for the respondent was incidental to that business [47].

11. The submission that, “except in limited circumstances”, the worker did not employ workers did not advance the worker’s position on appeal. The question was whether, during the period of the Agreement, the worker employed a worker or workers. His evidence was that he paid a driver to fill in for him when he took holidays. The Arbitrator’s approach and conclusion involved no error [49], [52].

Ground 4: indicia of employment

12. This ground of appeal was fundamentally misconceived and was rejected. The “indicia of employment” are relevant to determining whether a claimant is a worker or an independent contractor. As the worker conceded that he was an independent contractor, and not a “worker”, it was not necessary or appropriate for the Arbitrator to consider the indicia of employment. Given that concession, it was irrelevant that the worker may have been under the Council’s “complete control” [56]–[57].

13. The additional submission, that the worker only performed work for others when the Council did not require him, which the Arbitrator accepted, did not advance the worker’s position on appeal. The challenge to the Arbitrator’s finding that the business was the hiring of the worker’s truck was unsustainable and was rejected [59]–[60].

Ground 5: admission of lay evidence

14. This ground, which had ignored the way the arbitration was conducted, was untenable and was rejected. The statements referred to were filed and served within the timetable set by the Arbitrator on the first arbitration date on 23 March 2015. When the Arbitrator invited the parties to look at the issues raised by the statements, counsel for the worker merely objected to some of the paragraphs in some of the statements. Most of those objections were upheld. At the conclusion of submissions, the Arbitrator indicated that paragraph 17 of one statement did not assist him and counsel for the worker did not press his objection. It followed that, without properly identifying the evidence that was said to have been wrongly admitted, and how that had affected the outcome, this ground of appeal was completely specious [62]–[65].