Issue 12: December 2015

Srbinovski v Coles Supermarkets Australia Pty Ltd [2015] NSWWCCPD 66

Procedural fairness; use of extrinsic material to assess worker’s ability to earn; Arbitrator’s reliance on an industrial award without prior notification to the parties; findings of fact as to the worker’s ability to earn; application of ss 35, 37 and 32A of the 1987 Act

Keating P

24 November 2015

Facts

In 2014, the worker tore her right rotator cuff during the course of her employment with the respondent as second-in-charge to the service manager. The injury arose from repetitive right arm movements on a right-facing register, which required her to use her right arm to scan and place grocery items into bags for customers, in the absence of a rotation of duties.

The worker initially commenced work for the respondent employer in 1982 but resigned in 1993 to move overseas. In 2011 she resumed her career with the respondent.

Weekly payments of compensation were voluntarily paid until July 2014, at which time the employer denied liability. Amongst other things, the employer claimed that the worker was fit to return to normal hours of work. The employer also declined liability in respect of proposed surgery in the form of arthroscopic repair of the right shoulder.

A Senior Arbitrator found that the proposed surgery was reasonably necessary as a result of the injury. He further found that the worker was not fit for her pre-injury duties but was fit to work 30 hours per week as a clerk or receptionist. In order to quantify the worker’s ability to earn in suitable employment, the Senior Arbitrator relied upon the rate of earnings for an entry level clerk, as published online by the Fair Work Commission in the Clerks Private Sector Award (the Award). However, the Senior Arbitrator did not disclose to the parties his intended use of the Award to assess the worker’s ability to earn and did not give the parties an opportunity to address on the relevance of the extrinsic material.

The worker appealed. On appeal it was alleged that the Senior Arbitrator erred:

• by failing to afford the appellant procedural fairness by relying upon extrinsic material, namely the Clerks Private Sector Award, without drawing it to her attention or the attention of her legal representatives;
• by misstating or ignoring or misapplying the statutory task required of him by ss 32A, 35 and 37 of the 1987 Act, and
• in finding that the appellant was able to work as a receptionist or a clerical worker.

Held: The Arbitrator’s determination was revoked in part and remitted to another Arbitrator for the limited purpose of quantifying the worker’s ability to earn as a part-time clerical worker or receptionist.    

Ground (a) – Did the Senior Arbitrator err by relying upon extrinsic material?

1. The President considered the application of s 354(2) of the 1998 Act, r 15.2 of the Workers Compensation Commission Rules 2011 and the Commission’s Practice Direction No 13 (which notes that the Commission will notify the parties of the matter or matters about which it intends to inform itself and the parties will have an opportunity to respond).

2. The President noted that the Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits (s 354(2) of the 1998 Act). However, this power is subject to the general principles of procedural fairness: Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15 and Paul Segaert Pty Ltd t/as Lidco v Narayan [2006] NSWWCCPD 296 [56].

3. The President accepted that the Senior Arbitrator had access to the Award during the course of the arbitration hearing. However, the practical injustice in the case, as submitted by the appellant, was that the Senior Arbitrator’s reasons did not disclose the terms of the Award on which he relied other than the weekly amount payable. Further, it was impossible to know whether the Senior Arbitrator relied only on the wage rate to which he referred or other information within the Award in making his decision. Without the document being exhibited or even examined, it was impossible for the appellant to know whether the recited wage rate was even correct or applicable to the circumstances or criteria assumed by the Senior Arbitrator [59]–[60].

4. Having considered s 354 and r 15.2, the President found that, in addition to the requirements that the evidence be logical, probative and relevant to the facts in issue, and issues in dispute, when seeking to inform themselves on matters, Arbitrators have a duty to comply with the rules of natural justice and procedural fairness. That is, they must give all parties in the case a reasonable opportunity to consider the material [64].

5. In the circumstances of the case, having regard to s 354(2) and r 15.2, the President held that the Senior Arbitrator should have informed the parties that he intended to rely on the award provision and should have afforded the parties an opportunity to make submissions in relation to it and, if necessary, call evidence on it. His failure to do so was a failure to accord procedural fairness and a breach of the Commission’s own practice direction [67].

6. It followed that ground (a) was upheld [68].

Grounds (b) and (c) – Erroneous application of the weekly compensation provisions

7. In assessing the worker’s entitlement to weekly payments, the Senior Arbitrator considered the nature of the worker’s incapacity by reference to the medical evidence. Having considered the medical evidence, the Senior Arbitrator concluded that the worker was unfit to do work “where she is required to lift weights or work with her arms above her shoulders”. That finding was not challenged [99].

8. Contrary to the appellant’s submission, the Senior Arbitrator made observations about the worker’s age, including a finding that her age would not preclude her from obtaining work as a receptionist or clerical worker [100].

9. Although the evidence did not reveal what the duties of the worker’s pre-injury employment entailed, the appellant conceded that it was open to the Senior Arbitrator to infer that the work involved dealing with customers, dealing with customer complaints, handling return of goods “and those types of matters” [101].

10. The President rejected the submission that it was not open to the Senior Arbitrator to conclude that the worker’s pre-injury work experience, including her work as a second-in-charge, equipped her with the necessary skills to perform the role of a clerk or receptionist. That was precisely the submission that was made before the Senior Arbitrator and rejected due to the worker’s experience as second-in-charge, her belief that she had the necessary skills to be able to work at a service desk and the fact that her work experience indicated that she was reliable and would have attributes attractive to a putative employer. Additionally, the Senior Arbitrator found that her age and the fact that she had not worked previously as a clerk or a receptionist did not prevent her from obtaining and undertaking such work [102].

11. Further, given the supervisory responsibilities she had, the initiative she was required to exercise and in the absence of evidence in the nature of a vocational assessment, the President found that it was reasonable to infer, as the Senior Arbitrator did, that the skills derived from her pre-injury work would equip her to undertake the duties of a clerical worker [103]–[107].

12. There was a broad range of opinions amongst the treating and qualified doctors as to the worker’s ability to work full-time. The Senior Arbitrator noted the range of views and concluded that the worker would not be able to work full-time, but would be able to work around 30 hours per week in a suitable position. That finding did not involve error [109]–113].

13. The medical opinions expressed were in sufficiently general terms to give the Senior Arbitrator an insight into the nature of the physical limitations on the worker’s ability to work in general. Having regard to those limitations, it was open to the Senior Arbitrator to identify other forms of suitable employment that the worker would be capable of performing [114].

14. It followed that it was open to the Senior Arbitrator to conclude that clerical work was suitable employment in the circumstances of the case. Accordingly, grounds (b) and (c) failed [116]–[117].

Melhem v Hanna Bros Investments Pty Ltd [2015] NSWWCCPD 65

Section 66 of the 1987 Act; lump sum award in respect of whole person impairment resulting from primary psychological injury entered by Deputy Registrar acting as Arbitrator following issue of Medical Assessment Certificate by an Approved Medical Specialist; s 350(3) of the 1998 Act; recision of award by Arbitrator; whether recision order is interlocutory in nature; errors alleged in course of interlocutory proceedings; s 352 of the 1998 Act; whether relevant error made out

O’Grady DP

19 November 2015

Facts:

The worker alleged that he suffered a primary psychological injury when, on 13 November 2012 in the course of his employment with the respondent, he was held up by armed assailants and assaulted. He made a claim against the respondent in respect of whole person impairment on 10 October 2014 and upon a dispute arising as to the worker’s entitlement to such compensation, proceedings were commenced in the Commission. A tutor was appointed to the proceedings having regard to the medical opinion that the worker lacked capacity to comprehend legal proceedings.

In accordance with s 65(3) of the 1987 Act, the worker was referred to an AMS for assessment of whole person impairment. On 16 June 2015, the AMS issued a MAC. On 10 July 2015 orders were made by the Registrar’s delegate granting the parties conditional access to documents produced by the Family Court of Australia.

On 16 July 2015, the Deputy Registrar acting as Arbitrator issued a Certificate of Determination ordering the respondent pay lump sum compensation under s 66 of the 1987 Act of $112,200 in respect of a 47% whole person impairment. On the same day, it seemed coincidentally, the respondent’s solicitors wrote to the Registrar seeking referral under s 329(1) of the 1998 Act to the AMS for reassessment.

The matter was subsequently listed before an Arbitrator who vacated the Deputy Registrar’s order as well as making several requests and directions that the Registrar obtain documents previously produced in Family Court proceedings; he admitted into evidence a report of Dr Shillito, and remitted the matter on terms to the Registrar for referral of the matter back to the AMS. The worker appealed.

The grounds of appeal were:

• “The Appellant was denied natural justice and not afforded procedural fairness in relation to the issue of a Direction to Produce.”
• “The Arbitrator erred in allowing the affidavit from the family court proceedings to be admitted to the documents to be sent to the AMS.”
• “The arbitrator erred in accepting the report of Dr Shillito as a treating report when clearly it was an Independent Medical Assessment and should have been excluded under the rules.”

The complaints made in grounds 1 and 2 seemed to suggest relevant error on the part of the Arbitrator when making interlocutory rulings in the course of pre-hearing conferences. Ground 3 appeared to suggest error arising from wrongful admission of evidence.

Held: The Arbitrator’s determination was confirmed.  

Interlocutory

1. The respondent asserted that the decision was interlocutory in nature and further that leave, as required by s 352(3A) of the 1998 Act, should not be granted to proceed with the appeal. The Deputy President rejected that submission. The worker challenged the Arbitrator’s order which had the effect of revoking the award made pursuant to s 66 of the 1987 Act. The worker had, before the revocation of the award, secured an order for payment of $112,200 pursuant to that section. The revocation of the order had finally determined the question of entitlement. It was further argued that the decision was interlocutory in nature because the worker’s entitlement under the 1987 Act remained “open”. That argument was also rejected. It followed that the submission that the decision appeal against was interlocutory was rejected. [14], [16]–[17].

First ground

2. The first ground asserted “denial of natural justice” and that the worker was “not afforded procedural fairness in relation to the issue of a Direction to Produce”. The worker’s complaint failed to acknowledge two relevant matters. Firstly, the question as to whether such a direction is to be issued is one within the discretion of the Arbitrator (see r 13.4(1) of the 2011 Rules). Secondly, the procedure concerning issue of such a direction is regulated by the terms of r 13.4(3) of the 2011 Rules, again bestowing discretion upon the Arbitrator [31], [33].

3. No submission was made otherwise concerning the manner in which the Arbitrator exercised his discretion concerning the issue of the direction for production, nor concerning the question of access to the documents [35].

4. The Arbitrator’s declinature to inspect the documents when invited to do so by the worker did not ground any argument concerning denial of procedural fairness in the manner of the issue of the direction which had occurred earlier. It followed that the submission that the ultimate decision concerning revocation of the determination made on 16 July 2015 was affected by relevant error was rejected [36]–[37].

Second ground

5. It was clear that those advising the worker had misapprehended the orders made by the Arbitrator at the hearing conducted on 14 August 2015 [39].

6. Whilst there was much debate at that hearing concerning the relevance, probative value and admissibility of an affidavit which had earlier been produced by the Family Court of Australia, that affidavit was not before the Arbitrator at that time, nor was there any ruling as to its admissibility made by him. Nor was there any order made concerning referral of that document to the AMS as suggested in this “ground” [40].

7. A careful reading of the Arbitrator’s reasons demonstrates that final orders concerning particular material to be admitted and referred to the AMS would follow compliance with interlocutory orders and argument by the parties at a further hearing which had been fixed for 23 September 2015. Ground 2 was founded upon mistaken belief as to the nature of orders made and must fail [41]–[42].

Third ground

8. The issue to be determined by the Arbitrator concerned the question as to whether Dr Shillito’s report was a forensic medical report within the meaning of cl 49 of the 2010 Regulation. The question as to whether Dr Shillito’s report was a forensic medical report within the meaning of cl 49(4)(a) was essentially a question of fact. The Arbitrator’s finding was open on the evidence and the worker’s suggestion that error was made was rejected. It was important to note that the argument concerning any “concession” was not raised before the Arbitrator and, it was held, may not be argued on this appeal (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 (per the Court at 71)). No relevant error was made out concerning the Arbitrator’s ruling as to the admission of Dr Shillito’s report into evidence. Ground three failed [50], [56]–[57], [59].

Secretary, Department of Education and Communities v Oparah [2015] NSWWCCPD 67

No current work capacity; suitable employment; s 32A of the 1987 Act; need for rehabilitation plan; no evidence

Roche DP

30 November 2015

Facts:

The worker was a teacher. As a result of bullying and racist behaviour in the course of his employment, he suffered a psychological injury.

The worker’s general practitioner, Dr Gunawardena, certified that the worker was fit for teaching two days a week at another school from 29 December 2014 and was fit to work three days a week at another school from 29 January 2015 without a return to work or rehabilitation plan. Dr Dinnen, the qualified psychiatrist, expressed a similar view. The Arbitrator said that this was “too simplistic an approach”.

Mr Jupp, the treating psychologist, and Dr Synnott, consultant psychiatrist, considered that the worker would be capable of teaching on a gradual return to work (rehabilitation) plan at another school.

The Arbitrator said that it was the appellant that had the capacity to offer the worker teaching for two or three days per week and that it was the appellant that had the capacity to implement an injury management plan or rehabilitation plan, but had not done so. This placed the worker in an “invidious position”, because the worker remained “contracted” to the appellant and was not in a position to obtain work at a private or Catholic school.

As s 35 of the 1987 Act required consideration of the amount the worker is “able to earn in suitable employment”, and since he was not capable of earning anything in a teaching capacity until the appellant chose to rehabilitate him in accordance with his medical advice, the Arbitrator found that the worker was unable to earn anything in suitable employment, given his medical restrictions and “the industrial limitations” placed on him by the appellant.

Adopting a “realistic assessment” (Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 at [60]), the Arbitrator held that the worker had no current work capacity. The employer appealed.

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

• finding that the worker has no current work capacity;
• finding that the worker was not in a position to approach a private or Catholic school, and
• failing to properly apply s 32A of the 1987 Act.

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

Discussion and findings

1. All of the medical experts agreed that, from at least December 2014, the worker was fit to return to part-time work at another school. However, only Dr Synnott and Mr Jupp referred to the need for that return to work to be facilitated through a rehabilitation plan. Dr Gunawardena expressly rejected the need for referral to a rehabilitation provider and Dr Dinnen did not consider that question. Dr Synnott and Mr Jupp considered the involvement of a rehabilitation provider in such a way as to strongly suggest that such intervention would be a necessary requirement for a successful return to work [42]–[43].

2. On the issue of the need for involvement of a rehabilitation provider, the Arbitrator did not resolve the conflict between the views of Dr Gunawardena, expressed in a medical certificate without explanation, on the one hand, and the views of Dr Synnott and Mr Jupp, on the other [44].

3. The Arbitrator’s analysis involved an implied acceptance of the evidence from Dr Synnott and Mr Jupp to the effect that a rehabilitation plan was a requirement for any return to work, without any consideration of that issue and without any consideration of Dr Gunawardena’s express opinion to the contrary or Dr Dinnen’s evidence (accepting that it could be argued that Dr Dinnen’s silence on the issue could, in context, be interpreted as agreement with Dr Gunawardena’s opinion) [45].

4. Before noting that it was the appellant who had the capacity to implement an injury management plan or a rehabilitation plan, the Arbitrator had to determine whether she accepted the evidence from Dr Synnott and Mr Jupp, or the evidence of Dr Gunawardena and Dr Dinnen. She did not do that. Instead she assumed that the worker was not capable of earning anything in a teaching capacity until the respondent chose to rehabilitate him in accordance with his medical advice and the “industrial limitations placed on him” (which the Arbitrator said prevent him working in a private or Catholic school) were removed. It was conceded by the worker that there was no evidence of such industrial limitations and the Arbitrator erred on that point [46]–[47].

5. The worker sought to support the Arbitrator’s conclusion by assuming that each of the specialists recommended that the worker return to work with the condition that the return to work would be accompanied by supervised rehabilitation, and that as the condition precedent had not been met, the worker had no capacity to earn. That assumption was incorrect as only Dr Synnott and Mr Jupp expressed that view [48].

6. The appellant incorrectly assumed that the only conclusion open to the Arbitrator was that the worker was and is “able to return to teaching work at a different school”, initially two days per week and then three days per week, without any rehabilitation or injury management plan. It ignored the opinions from Dr Synnott and Mr Jupp and assumed that the Arbitrator had no option but to accept the opinion of Dr Gunawardena and Dr Dinnen [49].

7. If it was determined that the preferred view is that of Dr Synnott and Mr Jupp, which is that the worker is not able to return to work without a rehabilitation plan. It was open to find that, in the absence of such a plan (which the appellant is under a legal obligation to provide (see Pt 2 of the 1998 Act)), the worker has no current work capacity. Just as the existence of a return to work plan or rehabilitation plan is relevant, so too is the absence of such a plan in circumstances where one has been recommended by an appropriately qualified expert as a condition for a return to work [51].

8. The submission that, in the worker’s case, suitable employment is not necessarily restricted to teaching work was not a submission made at the arbitration and was not supported by any reasoning or evidence [52].

9. The Arbitrator erred in determining, in the absence of evidence, that the worker was not in a position to approach a private or Catholic school. However, whether that error affected the outcome depended on which of the competing experts’ opinions is accepted as to the need for a rehabilitation plan to facilitate a return to work. Given the parties’ submissions, it was not open for the Deputy President to conduct the re-determination [50], [53].

Bridge Inn Nominees Pty Ltd v Carr [2015] NSWWCCPD 64

Adequacy of reasons; application of Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; finding of consequential condition in the right shoulder from the use of crutches and overuse associated with an accepted injury to the left hip; assessment of expert evidence; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796

Keating P

16 November 2015

Facts

This appeal challenged an Arbitrator’s finding that on the balance of probabilities the worker suffered a consequential condition in her right shoulder as a result of the use of crutches and using the right shoulder to support herself in various activities of daily living, following an accepted injury to her left hip in August 2013.

The issues on appeal were whether the Arbitrator erred:

• in failing to provide proper and adequate reasons for finding that the worker sustained a consequential right shoulder injury;
• in finding that the worker sustained a consequential right shoulder injury when such a finding was not open on the evidence, and
• by rejecting the opinion of the respondent’s medical specialist on the basis of not having a full history.

Held: The Arbitrator’s determination was confirmed.  

The adequacy of the Arbitrator’s reasons

1. The Arbitrator made several relevant factual findings regarding the mechanism of injury and the evidence, which the President summarised. These findings, which included the Arbitrator’s finding that as a consequence of the injury to the hip it was reasonable to assume that the worker would have had to change how she moved about, how she rose from a seated position, the way she supported herself and balanced herself, were open on the evidence [51]–[53].

2. The President rejected the submission that there was any inconsistency in the Arbitrator’s findings with respect to the complaints of shoulder pain to the general practitioner and the absence of recorded complaints in the general practitioner’s clinical notes. The Arbitrator accepted the evidence of the worker that she made complaints of shoulder pain on many occasions as she said in her statement. He considered that the most likely explanation for the general practitioner not recording those complaints in his notes was because he was focused on the more serious condition, namely, the fractured left hip. Those findings sat logically together [61].

3. The Arbitrator’s reasons, when read in their entirety, exposed his reasoning process and articulated the essential ground on which he based his decision. He accepted that the worker had suffered a consequential condition in her right shoulder arising from a fracture of her left hip. The condition was due to overuse associated with the use of crutches and use of the shoulder to assist in rising from a seated position and to gain her balance. It followed that ground one failed [62] (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; Mifsud v Campbell (1991) 21 NSWLR 725 and Moylan v Nutrasweet Co [2000] NSWCA 337 applied).

The Arbitrator’s finding that the worker sustained a consequential condition in her right shoulder

4. The appellant essentially contended that due to the lack of contemporaneous evidence, inconsistency between the worker’s evidence and the clinical notes, the inconsistent history provided to a specialist doctor and the absence of treatment, the Arbitrator could not feel an actual persuasion of the existence of the fact, namely that the condition of the shoulder was consequential upon the fracture to the left hip. That submission was rejected by the President, for the reasons under ground one and for the reasons that follow [81].

5. It was open to the Arbitrator to determine causation by accepting the evidence from the worker and the general practitioner and applying the commonsense test (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), especially in circumstances where there was no medical evidence to exclude a connection between the hip injury and the shoulder condition [86].

6. The Arbitrator’s conclusion was based on his assessment of the whole of the evidence. His reasons for concluding that the worker sustained a consequential condition in her right shoulder were set out. His reliance on the general practitioner’s opinion was limited to an acceptance of the doctor’s opinion that the worker suffered from bursitis in the shoulder which was due to poor biomechanics and overuse. That was a matter that was within his expert knowledge and was based on his clinical observations and was open to the Arbitrator to accept it [87].

7. Accordingly, ground two was rejected [88] (Chanaa v Zarour [2011] NSWCA 199; Winter v NSW Police Force [2010] NSWWCCPD 121 applied).

The rejection of the respondent’s medical specialist’s opinion

8. The Arbitrator rejected the respondent’s medical specialist’s opinion on the question of causation for a number of reasons. Firstly, the specialist’s conclusion based on his clinical examination that the worker’s shoulder was normal was not correct. Secondly, the specialist’s opinion was based on an incomplete history. Thirdly, the specialist doctor found that it was normal for people of the worker’s age to have the conditions she had, albeit asymptomatic. However, he did not explain why the bursitis was present only in the right shoulder, particularly when the evidence revealed that it was the right shoulder that was subject to the overuse allegations [93]–[95].

9. The President found that it was open to the Arbitrator to reject the respondent’s medical specialist’s opinion for those reasons. Accordingly, ground three failed [97]–[98].

McCarthy v NSW Police Force [2015] NSWWCCPD 63

Inconsistent and conflicting evidence of expert tendered by the parties; inconsistency not brought to notice of Arbitrator; whether constructive error on part of the Arbitrator in failing to refer to entirety of evidence; Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 considered; s 11A of the 1987 Act; whether psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to discipline; need for remitter for redetermination by Arbitrator

O’Grady DP

13 November 2015

Facts:

The worker was a police officer. It was undisputed that the worker received a psychological injury. The respondent asserted that the injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline.

In August 2012, the worker in the course of his duties was attending a pub brawl and struck a member of the public. As a result, he was charged with assault (the assault charges).

In August 2013, the respondent commenced enquiries concerning allegations that the worker had accessed the police computer database without authority. It seemed that the worker ceased work, at first on sick report, in that month. Sometime between September and November 2013, the worker was charged with two counts of “Access/Modify restricted data held in computer: s 308 Crimes Act 1900”.

The worker then brought proceedings in the Commission alleging that, by reason of his exposure to distressing and traumatic events in the course of his employment since 2008, he suffered a psychological injury and had become incapacitated.

Both parties tendered the report of Dr Roberts in the Application to Resolve a Dispute and the Reply respectively. Both parties and the Senior Arbitrator assumed the two copies were identical and only referred to the copy of the report tendered by the worker. However, the report tendered by the employer, although bearing the same date, appeared to be a revised report and differed significantly from the other report regarding the issue of causation.

In a Certificate of Determination issued on 22 July 2015, the Senior Arbitrator determined that the worker suffered a psychological injury in the course of his employment and made an award for the respondent on the basis that the injury was caused by reasonable action taken by the respondent with respect to discipline within the meaning of s 11A(1) of the 1987 Act. The worker appealed.

The grounds of appeal relied upon by the worker were:

• “The Arbitrator had no jurisdiction to determine that the appellant wasn’t suffering from PTSD as alleged in the ARD as that was not disputed in writing before the determination, and hence erred in Law.”
• “The Arbitrator erred in fact in finding that the appellant’s incapacity for work arose after he was charged with offences relating to accessing information from the Police computer.”
• “The Arbitrator erred in fact in finding that the appellant’s incapacity arose from adjustment disorder arising from the criminal charges.”
• “The Arbitrator erred in Law in failing to determine the cause of the appellant’s incapacity for work on and from 29 April 2014 and in failing to evaluate all relevant evidence in that regard.”

A telephone conference was listed before the Deputy President in which submissions were received concerning the relevance, if any, of the evidence of Dr Roberts, as found in both reports, to the question of causation of injury as challenged on appeal, and otherwise.

Held: The Arbitrator’s determination was revoked.

Ground A

1. The worker correctly submitted that jurisdiction cannot be conferred by consent [57].

2. The success or otherwise of the defence pursuant to s 11A depended upon the Senior Arbitrator’s determination of a reasonably broad spectrum of factual issues, including the question as to appropriate diagnosis. The fundamental question was what experiences, if any, had caused psychological injury. The answer to that question, having regard to the disparate medical evidence, necessarily led to a conclusion as to diagnosis. It was abundantly clear that the necessity for the Senior Arbitrator to address factual disputes, including the question of ultimate diagnosis, was acknowledged by the worker’s counsel in the course of his submission before the Senior Arbitrator [58]–[59].

3. The obligation upon an insurer to provide a concise and readily understandable statement of the reason or reasons for denial of the claim as imposed by s 74 of the 1998 Act requires, in the case of a defence raised pursuant to s 11A, particulars as to which element prescribed by s 11A(1) is in issue. The respondent’s particularisation of the dispute in the notice met the requirements of s 74. The worker’s argument as to jurisdiction was not made out. Ground A was rejected [60].

Consideration of matters raised in supplementary submissions and those submissions put in support of grounds B and C

4. The controversy as to whether error had been committed by the Senior Arbitrator was dependent upon the true meaning of the Senior Arbitrator’s words found in the last sentence of [87] of her determination, which read: “The incapacity arose from the Adjustment Disorder arising from the criminal charges” [73].

5. The Deputy President was of the view that the words of the Senior Arbitrator were ambiguous. That ambiguity arose simply because the use of the term “charges” may be taken to refer exclusively to the 2012 assault charges or may be taken to refer to the totality of the charges including the computer related matters. This analysis of the Senior Arbitrator’s reasoning, and her failure to take account of the totality of Dr Roberts’ evidence demonstrated relevant error of law (see Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (Fitzgibbon)). Revocation has the inevitable consequence that the factual findings complained of are expunged [76]–[77].

6. Having regard to all the circumstances and, in particular, the constructive nature of the error committed by the Senior Arbitrator, it was considered that it was more appropriate that the matter be referred back to the Senior Arbitrator for further argument and redetermination rather than that there be a new decision made on this appeal [84].

Ground D

7. This ground was dealt with should there be error in the earlier findings. The worker had failed to acknowledge the Senior Arbitrator’s determination that the defence raised pursuant to s 11A should be upheld. It was unnecessary for the Senior Arbitrator to further consider the question of incapacity. In the absence of there being factual error established under grounds B and C, this complaint could not be made out [78]–[79].

8. As to the complaint concerning the Senior Arbitrator’s suggested failure to evaluate all the evidence relevant to this ground, it is clear that the evidence of the general practitioner had been considered by the Senior Arbitrator. Significantly, it was held, the Senior Arbitrator had made reference, also, to evidence not referred to by the parties. That evidence concerned the worker’s email which had been sent to the general practitioner in December 2013. It may reasonably be inferred that reference by her to that email had relevance to her evaluation of the general practitioner’s evidence [80].

9. The argument, founded upon statements made by Hayne J in Fitzgibbon, which asserts error of law in failing to take into account evidence relevant to this ground must be rejected. Ground D failed [81].