Issue 8: August 2015

Pioneer Studios Pty Ltd v Hills [2015] NSWCA 222

WORKERS COMPENSATION - respondent injured at party held on work premises - whether injury arose out of employment - whether injury arose in course of employment - respondent awarded compensation in Workers Compensation Commission by presidential member - injury found to have arisen in course of employment - injury found to have arisen out of employment - appeal from decision of presidential member - appeal limited to appeal in point of law – the 1998 Act, s 353(1)

APPEAL - whether Workers Compensation Commission erred in point of law in finding injury arose in course of employment - Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 - Comcare v PVYW [2013] HCA 41; 250 CLR 246 - whether Workers Compensation Commission erred in point of law in finding injury arose out of employment

APPEAL - whether Workers Compensation Commission erred in determining terms and conditions of employment by reference to respondent’s subjective perception - employer defines the terms of employment, Henderson v Commissioner of Railways (WA) [1937] HCA 67; 58 CLR 281 - Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 - appeal allowed

Court of Appeal

4 August 2015

Facts:

The worker, a trained photographer, was employed by the appellant who conducted a business of providing studios and equipment for photographic purposes. She commenced employment in early March 2004. On the evening of Saturday 13 March 2004, the worker attended a party at her employer’s premises. The party was a birthday party for a former employee (which was also a farewell for him) as well as for the birthdays of two friends of the former employee. At about 3.30am, when about to leave the party, the worker fell over a balustrade in the stairwell and suffered significant head injuries. After some months of treatment and rehabilitation, she was eventually able to return to work, though not with the appellant. She made a claim for worker’s compensation, in August 2010. On 13 January 2011, then Senior Arbitrator Moore rejected the worker’s claim.

On appeal before Roche DP, the worker’s appeal was successful. The employer then appealed Roche DP’s decision to the Court of Appeal (Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 (Pioneer No 1)). Roche DP’s decision was overturned and the matter was remitted to a Deputy President to be determined according to law. The worker then unsuccessfully sought leave to appeal in the High Court.

After the special leave application was rejected, the matter was determined by O’Grady DP who upheld the worker’s appeal from the Senior Arbitrator. The employer then appealed Deputy President O’Grady’s decision to the Court of Appeal for a second time. This is that decision.

The grounds of appeal concerned the following issues:

• as to the conclusion that the injury arose in the course of the worker’s employment:
  • whether the Deputy President erred in law by misdirecting himself as to, or failing to take into account, the “terms, conditions and incidents” of the worker’s employment;
  • whether there was evidence to support the conclusion that Ms Martel had authority (ostensible or otherwise) “to fix and extend” the worker’s working hours to include the party;
  • whether there was evidence that the employer (through Mr Ludbrook or anybody else) had communicated to the worker that attendance at the party was an incident of her employment;
  • whether the Deputy President had erroneously taken into account the worker’s perception of what was involved in her employment; and
• as to the conclusion that the injury arose out of the worker’s employment:
  • whether the conclusion “that a finding that an injury occurs in the course of employment will almost invariably, and apparently of itself, support a finding that the injury arose out of the employment” was erroneous in law;
• as to the finding under s 9A of the 1987 Act:
  • whether the Deputy President correctly directed himself as to the construction and application of s 9A; and
  • whether there was evidence capable of satisfying the “elements” of s 9A.

Held: The Presidential orders were set aside and in their place the appeal from the decision of the Senior Arbitrator of 13 January 2011 was dismissed.  

Basten JA (McColl JA agreeing)

1. When this matter was first considered in the Commission, the focus was upon the first limb of the definition of s 4 of the 1987 Act, namely whether the injury “arose out of” the respondent’s employment: on the rehearing, the focus changed to the second limb, namely whether the injury arose “in the course of” her employment [8].

High Court Authority

2. Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis) and Comcare v PVYW [2013] HCA 41; 250 CLR 246 (PVYW) had one important feature in common: both were concerned with injuries which occurred to a worker who was not actually engaged at the time of the injury in the essential activities of his and her employment, but was away from home as a result of that employment [13].

3. Not every activity which an employer may encourage, or even induce, an employee to undertake will result in the employee acting in the course of his or her employment by acceding to such encouragement or inducement. As noted in both Hatzimanolis and in PVYW, were an employer to encourage a worker to see a doctor after working hours, an injury which occurred whilst the worker was visiting the doctor would not be an injury in the course of employment [15].

4. While the Deputy President expressly acknowledged the point of distinction, if it appeared that he applied the reasoning in PVYW (and thus Hatzimanolis), without proper regard to that distinction, that would constitute an erroneous decision in point of law [16].

5. There was, however, a second way in which the Deputy President appeared to have erred, which required reference to the factual findings. This error involved a repetition of the error identified in the first presidential decision, namely identification of the scope of employment primarily by reference to the worker’s understanding of what was required of her. That was found in the first decision of the Court of Appeal to involve an erroneous decision in point of law [17].

Erroneous approach to fact finding

6. Although the employer was a reasonably small organisation with some 20 employees at the time of the accident, there were two persons with authority in respect of the respondent’s work. The sole director of the company was Richard Ludbrook, who gave permission for a former employee, Alistair Buchanan, who was about to leave, to have a party at the studios which was to be both a farewell for him and a birthday party for him and two of his friends, all three having birthdays in March [19].

7. The reference to Mr Ludbrook’s intention was somewhat unclear. Mr Ludbrook (who was not cross-examined) gave unequivocal and consistent evidence in two statements that the company “had no involvement in the organisation or control over what was happening at the party”; that the party was by invitation only; that he himself attended because he was invited, and that Mr Buchanan had arranged for security at the door and for catering and cleaning.  He also said that no member of staff was directed to attend, a statement confirmed by another staff member, Samantha Hawken, who was also unchallenged.  It might have been more accurate to say that Mr Ludbrook “expected” that staff would attend, but nothing turned on that [21].

8. The person from whom the worker took instructions was Jennifer Martel, whose job she was to take over. Ms Martel said that at about 2am Mr Ludbrook had requested her to move people out, a request which led her to ask people to move back into the studio. She helped the worker find her bag, which she had mislaid [22].

9. Ms Martel made a further statement on 7 April 2006 confirming Mr Ludbrook’s statement that the party was by invitation only; that it was a combined birthday party for three people and also a farewell party for Mr Buchanan; that staff were not directed to go to the party by the company and that attendance was purely voluntary [23].

10. The worker gave evidence to somewhat different effect and it was a matter for the Commission to determine what was said by whom and in what circumstances. Unless aspects of the evidence given above by Mr Ludbrook were expressly rejected, it would not be reasonably open to the fact finder to conclude that attendance at the party was an activity undertaken by the worker in the course of her employment. No different conclusion could follow from the evidence of Ms Martel [25].

11. No doubt an enquiry as to whether an employee intends to attend a party may be treated as encouragement, or even an inducement, whether or not it is so intended. However, it is not conduct of a kind which would be sufficient to turn a party into part of the employee’s employment. Further, the fact that Mr Ludbrook anticipated that members of staff would attend did not mean that the party was thereby rendered part of the employment of each employee. That finding was not reasonably open on the evidence given by Mr Ludbrook, including the lack of involvement of the employer accepted by the Deputy President. The matter was not taken further by the evidence of Ms Martel [29].

12. Although the Deputy President said that the worker’s understanding of the discussions “is not determinative of the issue as to whether, in attending the party, she was in the course of her employment”, the fact that she was found to have been “induced or encouraged” by the inquiry made by Mr Ludbrook and the discussion with Ms Martel was critical [31].

13. At [90] of the Deputy President’s decision, the first and last sentences dealt with the causal connection between the injury and the employment on the assumption that the injury occurred in the course of employment. The passage in between appeared to reflect a finding that the party formed part of the course of employment and for the reason that the worker believed it to be such. The fact that she did not know of the original reason (as found by the Deputy President) for Mr Buchanan to organise the party did not mean that her belief became the objective reason for the party. It merely meant she was ignorant of the true facts [32].

14. Unfortunately, this reliance on the subjective belief of the worker was the reasoning rejected in the first judgment of the Court of Appeal. Further, it appeared that the Deputy President had taken the elements of inducement and encouragement from the reasoning in Hatzimanolis, without regard to the different circumstances and without regard to the purpose for which that language was adopted, and applied it as a freestanding test of how an activity may fall within the course of employment. The fact that the worker was encouraged, or even induced, to attend the party was not sufficient to render it part of her employment [33].

The legal test

15. The language in the passage cited from Dixon J in Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281, and repeated without disagreement in subsequent cases, is inconsistent with the proposition that the course of employment is to be determined by the employee’s view of the conduct of the employer. Rather, it depends on an objective characterisation of the employer’s requirements and expectations, though with no precise limitation to the contract of employment. It is not sufficient that this particular employee held a particular view which, on the evidence, was not shared either by the director of the company, by her immediate supervisor, nor by the only other employee who provided a statement. The contrary view adopted by the Deputy President revealed an incorrect approach to the legal standard or criterion to be applied [36].

Orders

16. As this was the sixth hearing regarding facts that occurred a decade ago and the Court of Appeal inferred that neither party sought to adduce further evidence on the second presidential hearing, the majority decided against remitting the matter to the Commission and allowed the appeal against the presidential decision, and dismissed the appeal from the Senior Arbitrator.

Simpson JA (dissenting)

17. One feature that distinguishes Hatzimanolis and PVYW from the worker’s case is that in each of those cases, the employee was deployed to work away from home, involving overnight stays, in accommodation provided by the employer. That was not this case. It is not a distinguishing feature that renders the decisions irrelevant; far from it. However, the consequence was that the principles stated, while relevant, may not always be directly in point [62].

18. Although PVYW was, like Hatzimanolis, a case involving “an overall period of work” in the sense that the employee was continuously absent from her usual place of work and residence, they can be applied to injuries suffered during an interval or interlude between discrete periods of work. The question is what the employer induced or encouraged the employee to do. That question is not looked at in isolation; it is also necessary to have regard to “the general nature, terms and circumstances of the employment” (see the last sentence of [33] in PVYW) [70].

(i)    did Deputy President O’Grady err in point of law in failing to address the issue of “encouragement or inducement” in the context of “the general nature, terms and conditions” of the worker’s employment?

19. On initial assessment, the complaint appeared to have some force. There was little, if anything, in that part of the Deputy President’s judgment that dealt with whether the injury was suffered in the course of employment that indicated that he had directed his attention to this consideration [92].

20. Resort to the proceedings before Deputy President O’Grady showed that the initial impression was misleading. There was little in the evidence that identified the nature and terms of the worker’s employment. That may have been because, at the time the evidence was being prepared and presented to Arbitrator Moore, the worker concentrated on asserting that her injury was caused by her employment, to which inducement or encouragement may have less, or little (if any), relevance [93].

21. The absence of evidence on this subject was attributable to both parties. Evidence of the terms and conditions of the worker’s employment became relevant when leave was granted to her to assert injury occurring in the course of her employment. Neither party appeared to have adverted to what was asserted to be the need for evidence of this kind to be adduced [95].

22. lthough written submissions were provided by both parties to Deputy President O’Grady, there was nothing in the submissions either of the worker or of the employer that drew attention to the need to examine the question of encouragement or inducement in the light of the general nature of the worker’s employment. Examination of the transcript of the appeal before Deputy President O’Grady revealed that no such issue was raised in that proceeding. The Deputy President was not invited to consider whether the worker had been encouraged or induced to attend the party in the light of the general terms of her employment. Definition of the issues in adversarial litigation is the role of the parties: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 [96],[97].

23. In this case, no issue concerning the terms and conditions of the worker’s employment was raised in the proceeding before the Deputy President. It was not in error in point of law for a decision maker to fail to address an issue that is not presented for determination. The grounds of appeal that asserted an omission to address the general nature, terms and conditions of the worker’s employment were rejected by Simpson JA [98]–[99].

(ii)   did Deputy President O’Grady erroneously base his finding that the worker’s injury arose out of her employment on his earlier finding that it arose in the course of her employment?

24. The complaint here made was that the finding that the injury arose out of the worker’s employment depended entirely upon the anterior finding that it arose in the course of her employment. The complaint arose out of the opening sentence of [90] of the judgment. The first sentence was no more than a factual observation. Whether it was correct or not did not matter. It did not form the basis for the finding concerning the injury having arisen out of employment. In the remainder of the paragraph, Deputy President O’Grady gave detailed reasons for that conclusion. The conclusion was one of fact, not subject to appeal to the Court of Appeal. This ground of appeal was rejected by Simpson JA [100]–[102].

(iii)  the authority of Ms Martel to direct the worker

25. The ground of appeal was one of a number of sub-paragraphs in Ground 1. These grounds appeared to be contingent upon an anterior error in the finding that the injury occurred in the course of employment, a contention that her Honour had rejected. The submission went on that, even if that were not correct, the evidence of Ms Martel made it clear that she did not regard herself as having any authority to induce the worker’s attendance at the party, and that the finding must have been based “squarely” upon the worker’s subjective evidence of her view of Ms Martel’s standing [103]–[104].

26. This latter proposition appeared to draw upon the conclusion in Pioneer No 1, that the scope of employment is not to be determined by the employee’s subjective perception. The issue was, of course, different; if Mr Ludbrook and/or Ms Martel conducted themselves in such a way as to create the impression in the worker that Ms Martel had authority to direct her, then the worker’s subjective appreciation is relevant [105].

27. The evidence was limited, but, to the extent that there was evidence, it supported the conclusion of the Deputy President. There was no challenge to the worker’s evidence that Ms Martel was assigned, by Mr Ludbrook, to induct her into the workplace, and teach her what was required of her. This was a finding of fact that was open on the evidence. No error in point of law was disclosed. This ground of appeal was rejected by Simpson JA [106]–[107].

(iv)  The worker’s personal view of her scope of her employment

28. Pioneer No 1 is authority for the proposition that it is the employer who defines the terms of employment, and that that question is not determined by the employee’s subjective views. It would, therefore, be erroneous in point of law for the Deputy President to determine the worker’s terms and conditions of employment by reference to her subjective perception. It was held that he did not do so [108].

29. It was quite clear that the Deputy President appreciated that the worker’s subjective belief, or impression, of what was expected of her, played no role in determining whether the worker’s injury was suffered in the course of her employment [110].

30. It was true, as Basten JA had pointed out, that the Deputy President extracted passages from the worker’s statements that contain assertions by her as to the reason she attended the party; these include statements of her belief, feeling or perception that attendance was required or expected of her. But these extracts occur in the part of the judgment in which the Deputy President was recording the factual and evidentiary background. They play no role in that part of the judgment that is devoted to the process of reasoning by which the Deputy President reached his final conclusion. Simpson JA held that the grounds that sought to rely on the claim that error in point of law was disclosed by reliance on the worker’s subjective perception of her employment failed [111]–[112].

(v)   was there error in point of law in concluding that the employment was a substantial contributing factor to the injury?

31. The complaint made in respect of the assessment under s 9A of the 1987 Act that the worker’s employment was a substantial contributing factor to her injury depended upon what was said by Basten JA in Pioneer No 1. Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 was not read as defining the circumstance in which a causal connection may be established, or as laying down a test, or a minimum standard for, a finding of a causal connection [113]–[114].

32. Deputy President O’Grady substantially adopted the earlier reasoning of Deputy President Roche in this respect, reasoning with which he expressly agreed. Deputy President Roche referred to the various considerations set out in sub-s (2) of s 9A and made relevant findings of fact. The matters raised under these grounds did not establish error in point of law. The assessment that the worker’s employment was a substantive contributing factor to her injury was a finding of fact, unreviewable in the Court of Appeal. These grounds were rejected by Simpson JA [116]–[119].

BlueScope Steel Ltd v Jovanovski [2015] NSWWCCPD 44

Claim for future hospital and medical expenses; existing claim; whether claim exempt from the operation of s 59A of the 1987 Act; whether, in the circumstances of the case, an Arbitrator entitled to determine whether worker suffers permanent impairment; whether worker’s claim satisfied the requirements of cl 28 of Pt 2 of Sch 8 to the 2010 Regulation

Roche DP

31 July 2015

Facts:

This case involved a claim for the cost of proposed surgery to repair a right inguinal hernia and a traumatic right hydrocele. Prima facie, the right to recover compensation for the cost of that surgery was governed by s 59A of the 1987 Act. However, that section does not apply if a worker is a “seriously injured worker” as defined in s 32A of the 1987 Act. The Arbitrator held that the worker was a seriously injured worker, as defined, and that s 59A did not apply to him. The appellant employer challenged that finding.

However, the arbitration proceeded on the wrong basis. On the appeal, the parties agreed that the worker’s claim was an “existing claim”, that is, it was a claim that was made before 1 October 2012, meaning that the worker’s right to recover compensation under Div 3 of Pt 3 of the 1987 Act (which includes compensation for hospital and medical expenses in s 60) was governed by Pt 2 of Sch 8 to the 2010 Regulation. If a worker’s claim comes within the terms of cl 28 of Pt 2 of Sch 8, that claim is “exempt from the operation of section 59A” (cl 28(1)).

The respondent worker worked for the appellant employer, or its predecessors in title, for about 40 years. On 25 February 2011, he was pushing a large trolley filled with scrap metal when he felt sharp pain in his right groin. A few days later, he noticed swelling in his right scrotum. He remained at work and sought medical advice from a doctor at the appellant’s medical centre. One ultrasound on 25 February 2011 revealed a small direct right inguinal hernia and another on 28 February 2011 revealed a large hydrocele on the right. On 15 March 2011, Dr Horan, specialist surgeon, confirmed the presence of the hydrocele but could “not feel a definite hernia in [the worker’s] right groin”. He felt the incident in February 2011 was possibly muscular in origin.

On 13 December 2011, Dr Ellis examined the worker and assessed the worker to have a three per cent whole person impairment. On 20 March 2012, Dr Drew, general surgeon, examined the worker at the request of the appellant. Accepting that the hernia was clinically insignificant, and there being no palpable defect, Dr Drew said there was nil assessable impairment.

In proceedings commenced in the Commission on 26 September 2012 (the 2012 proceedings), the worker claimed permanent impairment compensation in respect of a three per cent whole person impairment. The Commission referred that claim for assessment by an AMS, Dr Kumar. On 31 October 2012, Dr Kumar issued a MAC in which he diagnosed the worker to have, as a direct result of the incident on 25 February 2011, bilateral inguinal hernias and a traumatic right hydrocele. However, he said that the worker’s hernias were still “in the process of progression and development” and that the relevant “body parts/systems” had not stabilised or reached maximum medical improvement. He expected that to happen “after adequate repair of both the hernias and cure of [the worker’s] hydrocele”. Without any complications from the operation, he expected the worker’s maximum medical improvement to occur six months after surgery.

On 27 November 2012, the worker sought the appellant’s approval to have the surgery recommended by Dr Kumar. The appellant disputed liability for the proposed surgery. On 10 July 2013, the worker claimed the cost of the proposed surgery. The Commission referred the question of whether the surgery was reasonably necessary to a second AMS, Dr Berry.

Meanwhile, on 6 December 2012, acting on the MAC issued by Dr Kumar, the Commission issued a Certificate of Determination in the 2012 proceedings in which it determined that “the degree of permanent impairment resulting from injury to [the worker] on 25 February 2011 is not fully ascertainable”. The Determination added that either party could apply to “restore proceedings when [the worker] has attained maximum medical improvement”.

After an examination on 4 March 2014, Dr Berry issued a MAC on 13 March 2014 concluding that the proposed treatment for those conditions (surgery) was reasonably necessary as a result of the injury on 25 February 2011. Notwithstanding this report, the appellant continued to dispute liability.

On 16 April 2015, holding that the worker was a seriously injured worker, the Commission issued a Certificate of Determination determining that the proposed surgery was reasonably necessary as a result of the injury at work on 25 February 2011 for the purposes of s 60(1) of the 1987 Act. The appellant employer appealed.

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

• finding that the worker’s injury has resulted in permanent impairment, when there is no evidence to support this finding and when such finding was not “within the province of the Arbitrator”;
• interpreting s 32A as allowing for the worker to qualify as a seriously injured worker, when the evidence did not indicate that there was any prospect that the worker would have permanent impairment of more than 30 per cent when maximum medical improvement is reached;
• finding that the worker is a seriously injured worker, and
• finding that s 59A did not apply to the worker.

Held: The Arbitrator’s determination was confirmed.  

Permanent impairment

1. The appellant’s submissions were not accepted. There was no basis for the appellant’s contention that the worker required an AMS to have considered the competing views of Dr Ellis and Dr Drew, and to have made a preliminary finding that the injury had resulted in permanent impairment. There is nothing in the legislation or the “scheme” that requires it [29]–[30].

2. In the 2012 proceedings, the Registrar referred to an AMS the assessment of the degree of permanent impairment suffered by the worker as a result of his injury. Before an AMS can make such an assessment, he or she must be satisfied that the relevant impairment is permanent. Though that was one of the questions put to him, Dr Kumar did not answer that question. He merely said that the worker had not reached maximum medical improvement and, therefore, the degree of permanent impairment could not be assessed. He declined to assess whole person impairment because the bilateral hernias were getting worse and were not stable, thus the worker’s condition did not meet the requirements of maximum medical improvement, as defined in the WorkCover Guides. If, in a valid MAC, an AMS has expressed that view, it will be conclusively presumed to be correct (s 326(1)(d)) and it will not be open to an Arbitrator to reach a contrary conclusion. However, Dr Kumar had not expressed that view [34], [40]–[41].

3. The appellant’s submission that an Arbitrator has no jurisdiction to determine whether a worker’s injury has resulted in permanent impairment and that an AMS must determine that question could not be accepted. There is no such requirement [35].

4. It is correct that cl 28(2)(b) contemplates that an assessment (by an AMS) of the degree of whole person impairment “is pending and has not been made”. However, it does so in very specific circumstances, namely, where the degree of permanent impairment has not been assessed “because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable”. Paragraph (b) (of cl 28) does not require that, before a finding or determination is made that the “injury has resulted in permanent impairment”, there must be an assessment to that effect by an AMS [36].

5. The fact that an impairment may improve (or deteriorate) in the future does not prevent a finding of permanent impairment at a particular time. Assessments of the degree of permanent impairment are only to be conducted when the medical assessor considers that the degree of permanent impairment of the injured worker is “fully ascertainable”. The permanent impairment will be fully ascertainable where the medical assessor considers that the person has attained maximum medical improvement. That occurs “when the worker’s condition has been medically stable for the previous three months and is unlikely to change by more than 3%WPI in the ensuing 12 months with or without further medical treatment (ie further recovery or deterioration is not anticipated)” (the WorkCover Guides at cl 1.21). It does not mean that further recovery or deterioration has been excluded as a possibility [37].

6. The Appellant’s submission that Dr Kumar “contemplated” that, after surgery, the worker would have a lesser impairment or no impairment was not accepted. He did not say that surgery would leave the worker with no impairment. Similarly, contrary to the worker’s submission, it was not open to infer that Dr Kumar thought there was impairment. He simply did not express an opinion on that question. That was regrettable, but it left the question to be determined by the Arbitrator on the evidence tendered and it was open to her to accept the evidence from Dr Ellis that permanent impairment exists. That finding, though made in the context of the definition of seriously injured worker, was also applicable to cl 28 [42].

7. The Appellant’s submission that, in purporting to find that the worker has permanent impairment, the Arbitrator did not consider the fact that his condition may resolve entirely could not be sustained [43].

8. The submission that an Arbitrator is not “equipped” to determine a dispute as to whether a worker’s injury has resulted in permanent impairment was without substance. Such a determination will be based on the expert medical evidence in the case. The Arbitrator reached her conclusion that a permanent impairment existed by accepting the evidence from Dr Ellis. It was open to her to do so and her acceptance of Dr Ellis’s evidence involved no error [45].

Applying clause 28, is Mr Jovanovski’s claim exempt from the operation of s 59A?

9. The Appellant’s submissions were inconsistent with the terms of the Regulation and could not be accepted [52].

10. Applying the text of cl 28(2) led to only one conclusion: the worker came within the terms of the clause. That was because the Arbitrator found, as it was open to her to do, that the worker’s injury had resulted in permanent impairment. An assessment of the degree of permanent impairment is pending (the Certificate of Determination issued on 6 December 2012 granted leave to the parties to restore proceedings when the worker has attained maximum medical improvement) and has not been made because Dr Kumar had declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable [57].

11. The Appellant’s submissions sought to impute to the legislation a policy that is desired by the employer, regardless of the words used. There was nothing in the text or context of cl 28 that justified that approach. The use of “or” between paragraphs (a), (b) and (c) of cl 28(2) demonstrates a clear intention that those paragraphs are to be interpreted disjunctively and not conjunctively. That is, each paragraph stands on its own [58].

12. The submission that the meaning of paragraph (b) is to be determined by the meaning of (a) and (c) was untenable. It introduces a qualification to paragraph (b) that is not there, namely, that to satisfy paragraph (b) a worker must establish that it is “probable” or that there is a “prospect” that, when the worker’s condition has reached maximum medical improvement, the degree of permanent impairment will be greater than 20 per cent. That approach reads words into the legislation that are not there and was not open [59].

13. There is nothing about the context of cl 28(2), the consequences of a literal or grammatical construction, the purpose of the statute, or the canons of construction that require the words of paragraph (b) to be read in a way that does not correspond with the literal meaning. It was reasonable to conclude that it was introduced to reduce the potentially unfair impact of s 59A (on claims made before s 59A was introduced) where a worker has a permanent impairment, but the degree of that impairment cannot be assessed. It does so in a very clear, specific, and limited way [63].

14. There was nothing in the purpose or objectives of the legislation that supported the Appellant’s construction. Clause 28 is consistent with the objectives and with the beneficial purpose of the legislation overall. It is therefore entitled to a beneficial construction (see ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 308 ALR 213 at [29]) [64].

15. The only substantive benefit that the worker received by virtue of cl 28 was that for a period, the worker is not caught by the 12-month limit in s 59A. He got no additional compensation or benefit. This was a further reason for not restricting the operation of the clause as urged by the appellant [66].

Other matters

16. Even if the Appellant’s arguments had been accepted, it would not have relieved the appellant of liability for the cost of the proposed surgery, because, under s 59A(3), if a worker becomes entitled to weekly payments of compensation after ceasing to be entitled, he or she is once again entitled to compensation under Div 3 of Pt 3, but only in respect of treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker (see at Flying Solo Properties Pty Ltd t/as Artee Signs v Collet [2015] NSWWCCPD 14 at [74]) [70]–[71].

Coles Supermarkets Australia Pty Limited v Conway [2015] NSWWCCPD 42

Section 60(5) of the 1987 Act; claim for payment of proposed surgery; s 59A of the 1987 Act; limit on payment of compensation; s 352(3) of the 1998 Act; whether monetary threshold met to permit appeal; consideration of Air Electrical Pty Ltd t/as DJ Staniforth & Co v Mortimer [2015] NSWWCCPD 18; facts in present matter distinguishable; Arbitrator’s order concerned compensation that will be payable; challenge to finding of fact; whether issues posed in argument addressed by Arbitrator

O’Grady DP

28 July 2015

Facts:

The worker received injury whilst employed by the appellant as a butcher in late January or early February 2014. The worker had, on an uncertain date before 12 May 2014, made a claim against the appellant in respect of medical or related treatment incurred, as well as the cost of proposed treatment, being right shoulder arthroscopy and rotator cuff repair. The appellant’s declinature of the claim was based upon a denial of injury and reliance was placed upon the provisions of s 59A of the 1987 Act.

It was relevant that the worker lost no time from work following the alleged injury and that he had reached retirement age, as fixed by the provisions of s 52 of the 1987 Act, in 2012.

In November 2014, the worker filed an Application to Resolve a Dispute in the Commission. The dispute between the parties concerning the cost of proposed surgery was, in accordance with the provisions of s 60(5) of the 1987 Act, referred to an AMS, Dr Breit, for assessment. In a MAC, Dr Breit expressed his opinion that the subject surgery was reasonably necessary as a result of the injury.

On 10 February 2015, it was noted by the Arbitrator that the appellant had conceded “... that time allowed for the surgery until, at the earliest, 10 April 2015”. It was also noted by the Arbitrator that “s 59A has now been removed/resolved as an issue”. On 5 March 2015, the Commission issued a Certificate of Determination, ordering the appellant to pay, pursuant to s 60 of the 1987 Act, the reasonable costs of and related to surgery of the worker’s right shoulder as proposed. The employer appealed.

The grounds relied upon on appeal were whether the Arbitrator:

• erred in finding that the worker suffered an injury ‘in February 2014’ and/or ‘late January 2014’ pursuant to s 4 of the 1987 Act arising out of or in the course of his employment;
• erred in finding that employment was a substantial contributing factor to any alleged injury sustained;
• failed to give due consideration to the lack of contemporaneous evidence supporting an alleged injury, and erred by accepting later allegations of an injury without considering these allegations in the context in which they were made;
• misdirected himself in his determination of injury and the causative nexus between alleged injury and the need for medical treatment, and
• erred in accepting the opinion of Dr Breit, AMS, regarding causation as persuasive despite conceding that Dr Breit had failed to properly consider the contemporaneous evidence and more detailed analysis of other independent examiners.

Held: The Arbitrator’s determination was confirmed.  

Threshold matters

1. There was no evidence before the Arbitrator as to the quantum of the incurred or proposed medical or related treatment expenses claimed by the worker. The surgery had not been carried out prior to the hearing of the appeal [24].

2. The appellant’s argument that the amount of the compensation at issue met the relevant threshold, subject to resolution of the argument founded upon s 59A, was accepted. The best guide concerning the determination of the sum at issue on the appeal is the sum as particularised ($10,000) by the worker in his application [26].

3. Given that the worker had not had any absences from work by reason of incapacity resulting from the subject injury, it was not disputed that weekly payments of compensation were not, nor had they been, paid or payable to him. As at the date of the hearing before the Arbitrator, the worker was entitled to such compensation if the treatment in question (the surgery) had, following the Arbitrator’s finding as to injury, been given or provided within 12 months of the date of claim. That period expired on an uncertain date being before 12 May 2015 (accepted by the appellant to be, at the earliest, 10 April 2015) [28].

4. The appellant’s argument that the monetary threshold requirements were in some way satisfied by reason that it was open to the worker to bring a lump sum claim in the future was rejected. Such a submission was based upon speculation and there was no certainty concerning relevant facts including, at least, the existence and extent of any whole person impairment that might follow the surgery [31].

5. The appellant’s argument which suggested the relevance of the fact, alone, that the threshold was met at the time of the Arbitrator’s decision was not supported by relevant authority and was rejected, as was a similar argument rejected in Air Electrical Pty Ltd t/as DJ Staniforth & Co v Mortimer [2015] NSWWCCPD 18 (Mortimer). It was held that the reasoning and the conclusion concerning the absence of a right of appeal, by reason of failure to satisfy the monetary thresholds in s 352(3), were correct. However, it was accepted that this matter may be distinguished from Mortimer on its facts [29]–[30].

6. It was of particular significance that the worker’s injury, as found by the Arbitrator, occurred on a date which post-dated the attainment by the worker of his retirement age. It was that fundamental fact which distinguished the present case from the circumstances considered by the Commission in Mortimer. Section 52(2)(b) of the 1987 Act provides that in circumstances where a worker receives an injury on or after reaching the retiring age, a weekly payment of compensation shall not be made in respect of any resultant period of incapacity for work occurring more than 12 months after the first occasion of incapacity for work resulting from the injury. It may be seen that upon the worker’s anticipated cessation of employment for the purpose of undergoing the subject surgery, he will be entitled to weekly payments for a period not exceeding 12 months after the first occasion of incapacity resulting from the subject injury. That circumstance will, having regard to the terms of s 59A(3), revive the worker’s entitlement to compensation under Div 3 of Pt 3 of the 1987 Act. Such entitlement would embrace the cost of treatment which had been the subject of the Arbitrator’s order, the subject of this appeal [32].

7. On the present facts, given the terms of s 52(2)(b) and of s 59A(3), the appellant’s liability as determined by the Arbitrator in respect of the cost of the proposed treatment that will be payable persisted. Its obligation to indemnify arose upon the occasion of the worker’s cessation of work and his undergoing the treatment. In the circumstances, the threshold requirements of s 352(3) of the 1998 Act had been met and the appeal was allowed to proceed [33].

Grounds one, two and three

8. The Arbitrator’s finding of injury was stated by him to be founded upon his acceptance of the worker’s evidence that “he did suffer an aggravation at work as described in early 2014”. The worker’s evidence was, to an extent, corroborated by the evidence of a co-worker, which had earlier been referred to by the Arbitrator in the course of his reasons [82].

9. As to the complaint concerning suggested error “in finding that employment was a substantial contributing factor to [the injury]” (ground two), the appellant was plainly suggesting that the Arbitrator erred in finding that the requirements of s 9A of the 1987 Actwere satisfied. The appellant correctly noted that the Arbitrator’s “phraseology” adopted when apparently addressing s 9A lacked exactitude [84].

10. As to the correctness of the finding as to injury, and leaving aside the somewhat confusing reference to discretion, it was concluded that the finding of the occurrence of the injury was open on the evidence. As to whether employment was a substantial contributing factor to the injury, that question was one of fact: Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46. Such question is to be determined upon a consideration of the totality of the evidence. The Arbitrator had accepted the evidence of Dr Breit. That evidence established that the radiological evidence dated 2011 demonstrated the existence of pre-injury damage to the shoulder joint [85]–[86].

11. The evidence of Dr Breit, it was held, would permit the Arbitrator’s challenged finding concerning s 9A of the 1987 Act. The appellant’s submission that “in view of the already existing pathology identified on 23 January 2014, any significant injury... would be apparent in further objective imaging of the right shoulder” was not supported by the evidence. The Arbitrator’s failure to draw such an inference did not demonstrate error [87].

12. It was held to be open to the Arbitrator to accept the views of Dr Breit concerning the absence of “importance” of the evidence of “pre-existing damage to the rotator cuff subsequent to the second injury” [91].

Ground four

13. It may be seen that the Arbitrator had again stated his acceptance of the worker’s evidence as to the occurrence of the injury, and of the opinion of Dr Breit which caused him to conclude that, as a result of the January/February incident, the worker’s condition had “got to the stage where surgery had become necessary”. As noted by the Arbitrator, there was no evidence that such procedure needed to be performed at an earlier time [94].

14. The difficulty with the appellant’s argument concerning this ground was that the Arbitrator had, upon the acceptance of other evidence preferred by him, concluded otherwise than as the appellant argued he should have decided. This appeal was not a rehearing and this ground was rejected [96].

Ground five

15. The appellant was correct to submit that Dr Breit did not make express reference to the findings of the January 2014 ultrasound. The Arbitrator plainly, it was held, inferred that Dr Breit had, notwithstanding his failure to mention the ultrasound study, noted that material when considering the papers before him. It was thus seen that the criticism of Dr Breit’s evidence had been addressed by the Arbitrator. It was clear that the Arbitrator had nonetheless given weight to Dr Breit’s views and that the evidence was found to be persuasive, notwithstanding argument advanced by the appellant [99]–[100].

16. Whilst the appellant was correct to draw attention to the absence of detail to be found in the Arbitrator’s reasons concerning the January 2014 ultrasound, it was clear that the controversy raised by those findings as postulated by Dr Assem had been taken into account by the Arbitrator. There was no error of law made out under this ground [101]–[102].

Allen v Roads and Maritime Services [2015] NSWWCCPD 39

Extension of time to appeal; less than satisfactory explanation for why the appeal was not lodged in time; Pt 16 r 16.2(12) of the 2011 Rules; application for increase in weekly compensation under s 55 of the 1987 Act; previous award decreased in absence of application for a decrease by the respondent; determination of matter on basis not argued; denial of procedural fairness; principles in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1; Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 applied

Roche DP

1 July 2015

Facts:

The worker was a part-time receptionist with the respondent, working 20 hours per week at $310.75 per week. On 1 May 2002, the worker injured her back whilst loading paper into a photocopier.

On 24 July 2002, the day before a disciplinary hearing for an unrelated matter, the worker resigned. A letter from the respondent, dated 12 September 2002, stated that the respondent did not accept the worker’s resignation and terminated her employment.

Between August 2002 and February 2004, the worker worked as a casual call taker in the dispatch centre for Newcastle Taxis. Her hours varied between nil and 26.5 hours per week. She could not cope because of her back pain and her doctor put her off work.

In a MAC issued on 15 October 2004, an AMS, Dr Ostinga, stated that the worker’s history was consistent with “an intradiscal rupture producing severe pain that has gradually resolved to low grade symptoms”. He assessed her to have, as a result of her injury, a six per cent whole person impairment (DRE lumbar category II with a one per cent allowance for restricted activities of daily living).

In an award entered on 13 June 2006,the worker received compensation from 1 May 2002 to 18 August 2002 of $310.75 per week and $102.70 per week from 19 August 2002 to date and continuing (the first award).

In December 2009, the worker, relying upon a report from an orthopaedic and spinal surgeon who had assessed her to have a 13 per cent whole person impairment, sought additional lump sum compensation because of a deterioration in her back.

In August 2010, the worker gave birth to her first child.

In a MAC issued on 1 April 2011, Dr Ostinga assessed the worker to have a seven per cent whole person impairment. He recorded that her backache and legs were worse and ached a lot and noted in his examination on 24 March 2011 that the worker was “quite heavily pregnant”. Dr Ostinga’s increase from his previous assessment was because, on the second occasion, he allowed two per cent “from her description of activity of daily living”, whereas he had only allowed one per cent for that item in his first report. From the assessment, an award of $1,250 for an additional one per cent of lump sum compensation was made on 9 May 2011.

On 5 July 2011, the worker gave birth to twins.

On 13 November 2012, the worker lodged an Application to Resolve a Dispute (the Application), seeking under s 55 of the 1987 Actto have the weekly compensation awarded in the first award increased to $232.05 per week from 28 April 2011 to 10 September 2014 (from that time, the worker became the subject of a work capacity decision).

The Arbitrator found that the worker’s symptoms had increased and he therefore had jurisdiction to review the first award. He considered it necessary to apply the five steps required by s 40 of the 1987 Act as explained in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell). The Arbitrator applied Neilson CCJ’s observation in Hirst v Illawarra Area Health Service [2000] NSWCC 22; 21 NSWCCR 82, that “pursuing the process of giving birth to a child and breastfeeding it or otherwise nursing it in its early years is an activity incompatible with employment” and that the worker’s “entitlement during the period claimed should be reduced to a nominal sum”.

As a result, in a Certificate of Determination issued on 10 March 2015, the Arbitrator, in the exercise of the discretion at step four (of Mitchell), varied the first award by reducing the award to the nominal sum of $20 per week. He did not direct the overpayments of compensation up to 10 September 2014 to be refunded. The worker appealed.

Although several grounds of appeal were alleged, the critical ground on which the appeal turned was whether the Arbitrator denied the worker procedural fairness in reducing her award of weekly compensation in circumstances where the respondent made no application for a reduction and without giving the worker the opportunity to address on whether the award should be reduced.

Held: The Arbitrator’s determination was revoked.  

Extension of time to appeal

1. The application to appeal was filed out of time. Though the explanation for the delay in lodging the appeal was less than satisfactory, there were exceptional circumstances that justified the extension of time to appeal that included: the appeal was out of time by only a few days; there was no prejudice to the respondent if time was extended, and, as the Arbitrator’s decision involved a fundamental error, the appeal must succeed [34], [40].

Discussion and findings

2. It was correct that, on review under s 55, the relevant weekly payment “may be ended, reduced or increased” (s 55(2)). However, that provision is subject to the nature of the case presented and argued. While it was accepted that the Commission is not bound by strict pleadings (Far West Area Health Service v Radford [2003] NSWWCCPD 10), at no stage did the respondent seek a decrease in the first award. Counsel for the respondent expressly acknowledged that the issue was whether there had been a change in circumstances “such as to entitle” the worker to “an increase in weekly payments” [57].

3. Though the employer’s counsel referred to the worker having given birth to three children, he did not submit that that fact would lead the Arbitrator to decrease the award. His concluding submission was that the worker had not demonstrated a relevant change in circumstances “such as to demand an increase in her weekly compensation” [58].

4. It was accepted that an Arbitrator is not obliged to determine a case by reference only to the matters put by counsel, and that, in deciding a case, an Arbitrator is entitled to think for himself or herself (Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 212; [1978] 3 All ER 1033 at 1037 per Lord Wilberforce; Klein v Minister for Education [2007] HCA 2; 232 ALR 306 at [38] per Kirby J; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [13] per Brennan CJ). However, if an Arbitrator is minded to determine a case on a basis not pleaded or argued, he or she is required to give the parties an opportunity to be heard [59].

5. By determining the case on a basis not claimed or argued, the Arbitrator denied the worker procedural fairness (Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [78]; 3 DDCR 1; Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 at [75]). In the circumstances, it was a fundamental error for the Arbitrator to decrease the award when he was not asked to do so, when the parties made no submissions on that possibility, and when he gave the worker no opportunity to meet that issue. Though there was some force in the Arbitrator’s conclusion, it could not be held that the error “could have had no bearing on the outcome” (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145) [60].

6. In a worker’s application for an increase in weekly compensation under s 55, the Commission should not, as a matter of basic procedural fairness, decrease or terminate an existing award in the absence of proper notice and particulars of a claim seeking such an order (see Ross v State of New South Wales [2014] NSWWCCPD 74 at [24]). Before the Commission will consider the reduction or termination of an existing award of weekly compensation, an application should (normally) be filed by the employer, with proper particulars in support outlining the grounds for that claim (Pt 10 of the 2011 Rules; Pages Hire Centre Kogarah v Chapman [2009] NSWWCCPD 9 at [34]). (It was noted that, in the appropriate case, the Commission has power to dispense with compliance with the 2011 Rules: Pt 1 r 1.6(2)) [61].

Sellings v New South Wales Police Force [2015] NSWWCCPD 40

Alleged primary psychological injury; s 65A of the 1987 Act; causation of psychological injury; challenge to factual findings

O’Grady DP

2 July 2015

Facts:

This appeal concerned a challenge to a finding made by an Arbitrator that the worker had no entitlement to lump sum compensation in respect of whole person impairment. That impairment was alleged to have resulted from a primary psychological injury received by the worker in the course of his employment with the respondent.

The worker was a police officer employed by the respondent. In the course of his duties, the worker experienced numerous terrifying, disturbing and gruesome experiences. The worker did not give evidence of any detail of any emotional or other reaction to these incidents he had experienced.

On 1 January 2010, the worker, in the course of his employment, when apprehending an alleged offender, received a significant injury to his neck. The worker did not, by reason of the consequences of his neck injury, return to active duty, and was discharged from the Force in July 2011. The worker underwent two surgical decompressions in May and August 2010.

As the worker was a police officer, the 1987 Act applied as it was prior to the 2012 Amending Act.

On 4 July 2013, the worker’s solicitors gave written notice of claim to the respondent and its insurer in respect of lump sum compensation under ss 66 and 67 of the 1987 Act, alleging a whole person impairment of 19 per cent by reason of “psychological/psychiatric disorder” resulting from injury said to have occurred on 7 June 2010. No particulars of the circumstances or of the alleged cause of the injury were then provided. Whilst the evidence suggested different diagnoses, there was no real dispute that the worker suffered such a condition.

In October 2014, the worker filed an Application to Resolve a Dispute with the Commission. Before the Arbitrator, the issues in dispute were whether the worker’s psychological injury was the result of exposure over the years to a series of violent and traumatic events or whether it was the result of the assault on 1 January 2010 and whether the worker’s psychological injury was a primary psychological injury or whether it was secondary to the physical injury he suffered to his neck on 1 January 2010.

Amongst other reports and correspondence from various doctors and psychiatrists, both parties relied upon various reports and correspondence from Mr McCombie, psychologist.

On 25 March 2015, the Commission issued a Certificate of Determination, making an award for the respondent in respect of the worker’s claim that on 7 June 2010 he suffered a primary psychological injury as a result of his exposure to traumatic events during his employment with the respondent. The worker appealed.

The grounds of appeal were whether the Arbitrator erred in: his examination of the medical evidence; his examination of the worker’s evidence, and asserting a diagnostic pathway for post traumatic stress disorder (PTSD) which is not consistent with the medical evidence.

The essential issue in dispute on the appeal was whether the Arbitrator made a factual error concerning the question of causation of the psychiatric or psychological condition. That raised the question of the correctness or otherwise of the Arbitrator’s determination that the worker’s psychological condition was not a primary psychological condition within the meaning of s 65A of the 1987 Act (as it stood prior to the 2012 Amendments) and was thus not compensable. There was also one argument concerning the Arbitrator’s approach to the expert medical evidence that constituted suggested error of law, in that it appeared to be put that there was no evidence before the Commission that could permit the conclusion reached.

Held: The Arbitrator’s determination was confirmed.  

1. The worker failed to identify in his grounds the errors allegedly committed by the Arbitrator. The mere suggestion in each ground that the Arbitrator “erred” in his approach to the evidence does not constitute an allegation of relevant error. The arguments as advanced with, perhaps, the exception of one submission put in respect of ground three, appeared to seek a review of the Arbitrator’s decision. Such review is expressly excluded by the terms of s 352(5) of the 1998 Act [13], [15].

Ground one

2. The worker drew attention to the Arbitrator’s evaluation of the evidence of Mr McCombie. It seemed to be argued that factual error had been made by the Arbitrator when he concluded, after summarising the initial diagnosis stated by Mr McCombie, “[i]t is therefore readily apparent from Mr McCombie’s contemporaneous reports that [the worker] had no discernible signs of PTSD when first seen by Mr McCombie.” It was put that such conclusion was “not supported [by Mr McCombie]” [37].

3. It was correctly asserted by the worker that Mr McCombie, when responding to correspondence received by him from the worker’s solicitors, explained his “working diagnosis” as originally expressed [38].

4. That explanation found in Mr McCombie’s facsimile demonstrated that the worker “did not report clear signs of [PTSD]” when he first attended Mr McCombie. That statement afforded an evidentiary basis for the Arbitrator’s conclusion concerning “no discernible signs of PTSD when first seen by Mr McCombie”. No relevant error was made out [39].

5. The worker’s argument gave particular attention to Mr McCombie’s revised diagnosis, being that of PTSD, which it was argued, had plainly come about in February 2011 when the worker was referred to the St John of God Hospital. The evidence of Mr McCombie was, it seemed, relied upon to explain why, when first examined, the worker was “reticent” concerning his reaction to trauma as described in his statement [40].

6. It was held that the Arbitrator’s reasons demonstrated that such explanation was not accepted. His reasons for rejecting those statements made by Mr McCombie extended beyond the absence of contemporaneous complaint concerning workplace trauma and associated symptoms. Particular reference was made by the Arbitrator to the view expressed by Mr McCombie concerning the relevance of the worker having read the report of Dr Prior, and, in particular, to the absence of meaningful evidence from the worker concerning relevant reaction to the workplace trauma [41].

7. Leaving aside the question as to whether the Arbitrator’s analysis of the evidence as to diagnosis was correctly outlined in the worker’s submissions, it was not in issue before the Arbitrator that the worker had suffered a relevant psychological or psychiatric injury. The Arbitrator’s Reasons addressed the question of causation of such condition. That question, not the question of diagnosis, required determination, and the Arbitrator ultimately concluded that the relevant condition was causally related to the physical injury. Mr McCombie had, as was submitted, expressed “two clear and separate diagnoses”. It remained for the Arbitrator to determine on the evidence whether there had been “clear and separate injuries”. The Arbitrator’s conclusion that the worker had not suffered a primary psychological injury as a result of exposure to traumatic events was available on the evidence. No error was made out [42].

Ground two

8. It seemed that this ground suggested that the Arbitrator erred in concluding that, because the worker had not “articulated a response to [the traumatic events]”, there exists “an obstacle to being able to conclude a causal link between [that exposure and the PTSD condition]” [43].

9. The Arbitrator examined the evidence of the worker concerning the traumatic events. The Arbitrator’s evaluation of the evidence of the worker was open to him. The relevance of that evidence to the question of causation of PTSD was a matter for the Arbitrator’s determination [44]–[45].

10. The deficiency identified by the Arbitrator (at [45]), to be found in the expert medical evidence was not overcome by the evidence, as evaluated by him, of the worker. Nor was it overcome, in the Arbitrator’s view, by anything stated by Mr McCombie in his communication dated 27 July 2014. No relevant error was made out [46].

11. A number of submissions were made in respect of this ground which could not, given the state of the evidence, be in any manner persuasive of error. There was no evidence of, nor could the Arbitrator take notice of, “established medical opinion and practice”. Likewise there was no persuasive evidence, nor any basis upon which notice could be taken by the Arbitrator, of “policing culture” or “usual indicators” of PTSD. The assertion that “the circumstances in which [the worker] suffered the neck injury are not capable... of being causally responsible for [the worker’s] PTSD” was not supported by evidence and was made in disregard of the opinion of Dr George [47].

Ground three

12. It was suggested in argument that it was “not clear from the Arbitrator’s Statement of Reasons as to what conclusions he reached regarding the actual diagnosis of [the worker’s] psychological injury”. Such argument failed to acknowledge the Arbitrator’s acceptance that the worker’s psychiatric symptoms worsened significantly after he became aware of the contents of Dr Prior’s report and that hospitalisation and treatment for PTSD was required. It was implicit that a diagnosis of PTSD was accepted by the Arbitrator [49].

13. The Arbitrator’s reasoning plainly demonstrated that he had rejected the worker’s argument that he suffered from a “separate PTSD condition”, that is, that his symptoms of PTSD which required treatment were caused by his exposure to traumatic events. That conclusion reached by the Arbitrator did not require, as seemed to be suggested, that the Arbitrator “embark upon an alternative diagnostic pathway for either PTSD or PTSD type symptoms” [50]­–[51].

14. In so far as the arguments raised under this ground may be construed as suggesting that there was an absence of evidence which permitted the Arbitrator’s conclusion as to causation of the worker’s undoubted psychological condition, such arguments were rejected. Some support for the worker’s case was found in the evidence of Dr Robertson. Mr McCombie’s evidence, which constituted a reconsideration by him of relevant matters and diagnoses, also afforded the worker support. Those opinions had been rejected by the Arbitrator. His reasons demonstrated the basis upon which such evidence was rejected, and his conclusions were available to him having regard to the evidence as a whole [52].