Issue 9: September 2015

Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250

WORKERS’ COMPENSATION – entitlement to lump sum compensation for permanent impairment – 1987 Act (NSW) (1987 Act) s 66, and Sch 6, Pt 19H, cl 15 – 2010 Regulation (NSW) Sch 8, cl 11 – one claim limitation in s 66(1A) of the 1987 Act introduced with effect on and after 19 June 2012 (Critical Date) – whether claim for lump sum compensation made prior to Critical Date distinct from further claim made after Critical Date – whether cl 15 of transitional provisions had effect that one claim limitation applies to claim for lump sum compensation made on or after Critical Date – whether cl 11 of transitional regulations had effect that making earlier claim for lump sum compensation (which had been resolved) excluded one claim limitation in respect of further claim made on or after Critical Date

WORKERS’ COMPENSATION – ss 66(1A) and 66A(3)(c) of the 1987 Act – whether s 66A(3)(c) permits further claim for lump sum compensation after Critical Date additional to that payable under a complying agreement made prior to Critical Date – Commission’s power to award additional compensation under s 66A(3)(c) dependent upon worker’s entitlement to claim under s 66 as amended

WORKERS’ COMPENSATION – meaning of “one claim” in s 66(1A) of the 1987 Act – whether “one claim” means one further claim for lump sum compensation on or after Critical Date – one claim limitation operates on facts antecedent to Critical Date

Court of Appeal

27 August 2015

Facts

On 14 December 2010, the worker claimed permanent impairment compensation in respect of a whole person impairment of seven per cent due to an injury to his back (the 2010 claim). The parties settled that claim and the worker entered a complying agreement under s 66A on 22 December 2010. That complying agreement provided for the payment of permanent impairment compensation of $8,750, in respect of seven per cent whole person impairment.

The worker’s back condition deteriorated and he had surgery in September 2012. On 29 October 2013, he made a claim for further compensation of $23,750 for a permanent impairment of 22 per cent (with credit for the $8,750 already paid under the 2010 claim), in addition to compensation for pain and suffering (the 2013 claim). This claim was denied by the insurer on the basis that s 66(1A) of the 1987 Acthad the effect that a worker could make only one claim for permanent impairment compensation in respect of permanent impairment that results from an injury.

Relevantly, s 66(1A), which was introduced by the 2012 amending Act and has effect on and after 19 June 2012, provides:

“Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”

An Arbitrator determined that the worker was not precluded from bringing his further claim for permanent impairment compensation. On appeal, the President upheld the Arbitrator’s determination. The employer appealed the President’s determination.

Other relevant provisions

Clause 15 of Pt 19H of Sch 6 to the 1987 Act provides:

“15 Lump sum compensation

An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”

Clause 11 of Sch 8 of the 2010 Regulation provides:

“11  Lump Sum Compensation

• The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.
• Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).”

The issues on appeal to the Court of Appeal concerned whether:

• s 66(1A) precluded the worker from bringing the 2013 claim, and
• s 66(1A) should be construed to mean that one further claim for permanent impairment compensation can be made after 19 June 2012.

Held: Leave was granted to appeal. The Commission’s decision in Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84 was overturned.  

Gleeson JA (Beazley ACJ and Emmett JA agreeing)

Issue one

1. Gleeson JA held that the clear object of cl 11 of Sch 8 to the 2010 Regulation was to extend the 2012 amendments to claims made before 19 June 2012, except where the “claim” specifically sought lump sum compensation. The regulation went no further [87].

2. Gleeson JA also held that cl 11 of Sch 8 does not purport to vary the operation of cl 15 of Pt 19H with respect to claims for compensation made on or after 19 June 2012. Clause 11 says nothing about claims for compensation made on or after 19 June 2012 [90].

3. Although arising out of the same injury, the 2013 claim was different to the 2010 claim. The reference to “claim” in cl 15 of Pt 19H and cl 11 of Sch 8 were held to be clearly directed to the claim under consideration (Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 considered). There was no contention that the 2013 claim was subsumed by the 2010 claim [98], [103].

4. Counsel for the worker conceded that the worker made two claims, one in 2010 (which was resolved) and another in 2013 [63]. Gleeson JA held that once it was accepted that the 2013 claim was a different claim to the 2010 claim, it followed that the effect of cl 15 of Pt 19H was that the worker’s 2013 claim was subject to the operation of the amending provisions, including the one claim limitation in s 66(1A) [91].

5. Accordingly, s 66(1A) disentitled the worker from making the 2013 claim, as he had already made one claim for permanent impairment compensation (the 2010 claim), which had resolved before 19 June 2012 and because the 2013 claim was not a claim made before 19 June 2012 that specifically sought lump sum compensation under s 66 or s 67.

Issue two

6. The transitional provisions with respect to the 2012 amendments make plain that the new “one claim” limitation applies, relevantly, to claims for lump sum compensation made on or after the critical date (19 June 2012) [119].

7. The construction that s 66(1A) means that “only one further claim” after 19 June 2012 can be made was not accepted by the Court. Gleeson JA held that that is not what the words of the provision provide. His Honour also held that in view of the plain language used and the evident purpose of the 2012 amendment there is no warrant for adopting a gloss on those words, or reading an additional word such as “further” into s 66(1A), so as to qualify the one claim limitation (Taylor v The Owner – Strata Plan No 11564 [2014] HCA 9; 88 ALJR 473 applied). In addition, Gleeson JA observed that the legislature could have provided that claims for lump sum compensation made prior to the critical date were not to be counted for the purpose of the amended s 66, but it chose not to adopt that course [129]–[132].

8. As the worker had already made his one claim for lump sum compensation, that being his 2010 claim, s 66(1A) disentitled him from making the 2013 claim for further compensation [134].

Further issue – s 66A(3)(c)

9. Gleeson JA acknowledged that the “one claim” limitation in s 66(1A) may be seen to conflict with the assumption underlying the Commission’s power to award additional lump sum compensation under s 66A(3). Relevantly, s 66A(3)(c) provides for the Commission to award compensation for additional compensation payable by virtue of a complying agreement if it is established that “since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed” [105].

10. In reconciling the conflict, Gleeson JA, firstly, had regard to the general presumption against surplusage in statutes (Taheri v Vitek [2014] NSWCA 209; 87 NSWLR 403). Secondly, Gleeson JA noted that reconciling conflicting provisions will often require the Court to determine which is the leading provision and which is the subordinate provision, and which must give way to the other (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, citing Institute of Patent Agents v Lockwood [1894] AC 347) [106]–[107].

11. Gleeson JA concluded, giving effect to the purpose and language of the 2012 amendments while maintaining the unity of the statutory scheme, requires that the one claim limitation in s 66(1A) be taken to be the leading provision and the Commission’s power under s 66A(3) must give way to it. This is because the Commission’s power to award additional compensation under s 66A(3)(c) is not independent of a worker’s entitlement to receive compensation under s 66. So much was accepted by the worker’s counsel [108].

12. It was held that s 66A(3) only has limited operation with respect to claims for lump sum compensation additional to that payable under a complying agreement, where the further claim is made before 19 June 2012 and thus would be exempted from the one-claim limitation in s 66(1A) [109].

13. It followed that s 66A(3)(c) did not assist the worker because his further claim for lump sum compensation, based on his deterioration since the 2010 complying agreement, was not made before 19 June 2012 [110].

BHP Billiton Ltd v Bailey [2015] NSWWCCPD 48

Injury received before 1 January 2002; claim pursuant to former s 67 of the 1987 Act first made in December 2014; proper construction and application of provisions of the 2012 Amendment Act and of savings and transitional provisions; consideration of continued operation of cl 3 of Pt 18C of Sch 6 to the 1987 Act; BP Australia Ltd v Greene [2013] NSWWCCPD 60 distinguished

O’Grady DP

19 August 2015

Facts:

This appeal raised questions as to the proper construction and application of certain amendments to the 1987 Act which followed the commencement of the 2012 Amending Act and of the savings and transitional provisions effected by that Act and relevant regulations. The particular provisions relevant were those amendments concerning a worker’s entitlement to lump sum compensation as found in Sch 2 to the 2012 Amending Act.

Those amendments provided, inter alia, that lump sum compensation (s 66 of the 1987 Act) was payable only in respect of whole person impairment which exceeded 10 per cent. The provisions of s 67 of that Act which formerly had made provision for payment, in certain circumstances, of lump sum compensation for pain and suffering, were repealed.

The worker was employed as a supervising chemist. That employment ceased on 24 June 1988. There was no dispute between the parties that the worker received injury arising out of or in the course of that employment, being boilermaker’s deafness or deafness of like origin. The deemed date of injury was 24 June 1988: s 17(1)(a)(ii) of the 1987 Act. The worker did not make a claim in respect of that injury until 4 December 2014. He asserted entitlement pursuant to ss 66 and 67 of the 1987 Act as those provisions stood prior to the passage of the 2001 Amendment Act. Certain savings and transitional provisions enacted by that last mentioned Act (found in Sch 6 Pt 18C to the 1987 Act) were relied upon by the worker and were of particular relevance.

It had been agreed between the parties that the worker was entitled to lump sum compensation pursuant to s 66 of the 1987 Act and that the worker was entitled to payment in respect of a 35.2 per cent binaural hearing loss. The quantum of that entitlement had been agreed as being $22,880. The parties further informed the Commission that such monetary entitlement had been calculated by reference to the Table of Disabilities which appeared at Pt 3 Div 4 of the 1987 Act before that Act’s amendment effected by the 2001 amending Act.

The dispute between the parties which led to the commencement of these proceedings concerned the appellant’s declinature of the worker’s claim made pursuant to s 67 of the 1987 Act. The Arbitrator considered himself bound by the decision in BP Australia Ltd v Greene [2013] NSWWCCPD 60 (Greene) and the Commission issued a Certificate of Determination on 15 April 2015, making an award for the worker in respect of compensation pursuant to s 67 of the 1987 Act.

The issue in dispute on appeal was whether the Arbitrator erred in relying upon Greene when reaching his conclusion that, notwithstanding the amendments passed in 2012, the worker was entitled to s 67 compensation. The appellant challenged the correctness of Greene.

Held: The Arbitrator’s determination was revoked.

The relevance of Greene to issues raised in the present appeal

1. It was important to note that the question raised in the present matter was what, if any, consequences flow from the enactment of the 2012 amendments to the 1987 Act and regulations so far as the worker’s right to a s 67 lump sum was concerned. Whilst the matter of Greene addressed those amendments and the savings and transitional provisions (cl 3 of Pt 18C of Sch 6) which had, to some extent, protected Mr Greene’s rights to s 66 lump sum compensation from the consequences of the 2001 and 2012 amending Acts, the Commission, in that matter, was not concerned with, and thus did not address, the question of the consequences, if any, concerning s 67 entitlement [47].

2. It was held that it was clear, notwithstanding the parties’ agreement before the Arbitrator that Greene was “on all fours” with the present matter, that Greene did not, expressly or by necessary implication, address the question of the preservation or otherwise of s 67 entitlement concerning injury which had been received before 1 January 2002 where a claim is first made on or after 19 June 2012. That fact had not been acknowledged by the Arbitrator in the present matter [48].

3. The Arbitrator was not bound, nor was the Commission on this appeal, by the concession made by each party as to Greene being “on all fours” with the present case (see Comcare v Fiedler [2001] FCA 1810 per the Court at [39]). Whilst there was no assertion made by the appellant that the Arbitrator’s reasons were relevantly inadequate (indeed both parties accepted the brief manner in which the Arbitrator addressed the dispute) it was held that the Arbitrator had erred in treating Greene as binding authority concerning the s 67 question [49].

Disposition of the appeal

4. Both parties accepted that the 2012 amendments did not impliedly repeal cl 3 of Pt 18C of Sch 6 of the 1987 Act (see also Michell Australia Pty Ltd v Fordham [2015] NSWWCCPD 15 at [46]). However, it was not considered that, on the present facts, the continuing existence of cl 3 had the effect, as argued by the worker, of preserving his entitlement to a s 67 lump sum following the repeal of that section in 2012 [50].

5. The worker’s submissions when dealing with grounds one and two correctly, it was held, identified the relevant amendments addressed by cl 3 of Pt 19H of Sch 6 as being those provided by cls 5, 6, 7 and 13 of Sch 2 to the 2012 amending Act. Clause 13 made provision for the repeal of s 67 [51].

6. When developing argument concerning the operation of the savings and transitional provisions, it was put by the worker that, in the case of a pre-2002 injury claim, such was brought, not pursuant to s 66 or 67 but “pursuant to cl 3 of Pt 18C”. That argument was rejected given the Deputy President’s view that such a claim made before 19 June 2012 was able to be brought pursuant to s 66 or s 67, albeit in those terms, by reason of the date of injury, as preserved by the provisions of cl 3 of Pt 18C [52].

7. The worker’s claim was not made until December 2014 at which time s 67 had been repealed. Any right to lump sum compensation for pain and suffering had, subject to the savings and transitional provisions, been expunged by the 2012 amending Act. It was held that the worker’s claim was defeated by the terms of cl 15 of Pt 19H of Sch 6 (see also ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 308 ALR 213; 13 DDCR 90 (Goudappel) at [29]) [53],[56].

8. Whilst, as found in Greene, cl 3 of Pt 18C of Sch 6 survived the 2012 amendments, that provision, thereafter, has effect as stated by Roche DP in Greene. It was held that given the issue before the Commission in that matter, that statement could be taken as determining that the work to be done by cl 3 is limited to preservation of s 66 entitlement in accordance with the pre-2001 form of that section subject to the provisions of cl 18 and cl 19 of Sch 8 to the 2010 Regulation [54].

9. Entitlement to s 67 benefits does subsist in circumstances where an exception is made by Pt 6 of Sch 6 to the 1987 Act or the Regulations: cl 3(1) of Sch 6 of Pt 19H. Such exceptions are expressly made by the terms of cl 11 of Sch 8 to the 2010 Regulation as well as by cls 25 and 26 of Pt 19H. In the case of injury suffered by police officers, paramedics and fire fighters (cl 25) and coal miners (cl 26), the 2012 amendments do not apply. There is no equivalent provision concerning pre-2002 injuries. No comfort could be gained by the worker from the continuing existence of cl 3 given, firstly, that the provision did not appear in Pt 19H or in the Regulations; and, secondly, given the terms of that clause, they being merely that the 2001 amending Act amendments do not apply to pre-2002 injuries [55].

10. It was argued by the worker that Goudappel may be distinguished from the present case given that the Court was not there dealing with an injury which occurred before 2002, nor was the question of s 67 entitlement in issue. Those arguments were rejected given the absence of any relevant exception and given that cl 11 makes express reference to “section 67” [57].

11. The worker further argued that, given an absence of any reference in the 2012 amending Act to cl 3 of Pt 18C of Sch 6, entitlement pursuant to that provision was in some way “isolated” and was “not affected by cl 15”. Given the decision in Greene and the Deputy President’s view as to the limited work to be done by cl 3 of Pt 18C of Sch 6, that argument was rejected [58].

12. The worker relied upon the protective provisions of s 30(1)(c) of the Interpretation Act 1987 when argument was advanced that the 2012 amending Act should not be taken to “retrospectively” adversely affect his accrued right to a s 67 lump sum. It was held that s 30(1)(c) must, as demonstrated by the reasoning of the plurality in Goudappel, be read together with s 5(2) of that Act, which addressed the question as to the existence of a “contrary intention” expressed by the legislature. It was held that such contrary intention was to be found in cl 15 (read with cl 11). The worker’s claim was caught by the relevant repeal [59]–[60].

Davison v State of New South Wales [2015] NSWWCCPD 47

Statutory interpretation; meaning of “seriously injured worker” in s 32A of the 1987 Act; whether that section permits multiple injuries to be aggregated to reach the impairment threshold for seriously injured worker; s 8(b) of the Interpretation Act 1987; whether singular includes the plural; whether contrary intention appears in the legislation

Keating P

12 August 2015

Introduction

This appeal concerned the construction of the term “seriously injured worker” in s 32A of the1987 Act. In particular, the issue on appeal concerned whether it is permissible to aggregate impairments that have resulted from injuries to different body parts, in a series of unrelated incidents, to meet the required permanent impairment threshold of more than 30 per cent to be characterised as a “seriously injured worker”.

For the reasons explained below, and the reasons in Merchant v Shoalhaven City Council [2015] NSWWCCPD 13 (Merchant), it is not possible to aggregate such impairments.

Facts

The worker was employed by the respondent as an administration officer. In 1996 she suffered an injury to her neck and right arm as the result of an unsatisfactory work station, for which she was awarded lump sum compensation.

In a separate and unrelated incident on 1 July 2002, the worker suffered an injury at work to her back when she fell from a chair, the wheels of which had become entangled in a rubber mat. She was awarded further lump sum compensation.

The worker was made redundant from her position on 25 November 2011. She was paid voluntary weekly payments of compensation from 29 November 2011 until 31 December 2012.

In October 2013, the worker’s general surgeon assessed her to have a whole person impairment of 35 per cent, relating to symptoms arising from the incidents in 1996 and 2002. The worker then sought a concession from the respondent that she was a “seriously injured worker”. In an undated letter, the worker’s solicitors wrote to the insurer seeking weekly compensation from 1 January 2013, based on the worker being compensated as a seriously injured worker. The claim was declined. The respondent alleged that the worker was not entitled to ongoing compensation payments because her injuries could not be aggregated to enable her to satisfy the threshold to be considered a ‘seriously injured worker’.

The issue in dispute before the Arbitrator was whether the worker could aggregate the impairments arising from two separate and distinct injuries (one in 1996 and one in 2002) in order to satisfy the definition of “seriously injured worker”. The Arbitrator found, applying Merchant, that impairments resulting from separate and distinct injuries could not be aggregated for the purposes of satisfying the threshold in s 32A.

The issue on appeal was whether the Arbitrator erred when he considered that impairments arising from different distinct injuries could not be aggregated to determine if the worker was a seriously injured worker.

Held: The Arbitrator’s determination was confirmed.

Determination

1. The appellant’s submissions were rejected for the reasons discussed in Merchant and for the reasons that follow [65]–[66].

2. The President accepted that, applying s 8(b) of the Interpretation Act, the reference to “injury” in s 32A includes a reference to injury in the plural form. However, the presumption created by s 8(b) applies “...except in so far as the contrary intention appears...” either in the Interpretation Act or the instrument concerned, which in this case is a reference to the Workers Compensation Acts. In Merchant, the President found that such a contrary intention was evidenced in the legislation for the reasons stated and he remained of that view [67].

3. The President observed that the definition of “seriously injured worker” requires that the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30 per cent [75].

4. Division 4 of the 1987 Act, which comprises ss 65–73, deals with compensation for non-economic loss. Section 65 provides that for the purposes of the Division, the degree of permanent impairment that results from an injury is to be assessed as provided by that section and Pt 7 (Medical assessment) of Ch 7 of the 1998 Act. Section 65(2), provides that where a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purpose of Div 4 [76]–[77].

5. Section 66(1) provides that a worker who receives an injury that results in a degree of permanent impairment greater than 10 per cent is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35, it was held, applying the Interpretation Act, that “injury” in s 66(1) can, in an appropriate case, include “injuries”. The President distinguished that case from the present, as the single impairment resulted from three separate injuries to the back, not separate and unrelated injuries to different body parts [78]–[79].

6. Part 7 of Ch 7 of the 1998 Act includes s 322(2). That sub-section provides the mechanism for the assessment of permanent impairments that result from the same injury. That is, impairments from “the same injury” are to be “assessed together” to assess the degree of permanent impairment of the injured worker [80].

7. Section 322(3) provides the mechanism for assessing impairments that result from more than one injury arising out of the same incident. Under this sub-section impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment [81].

8. The appellant argued that s 322 was an “authorising provision” for the assessment of injuries. She argued that s 322 did not prohibit the aggregation of injuries to different body parts and should be read as complementing the existing legal principle (in Richardson v Warrie Grazing Pty Ltd [2006] NSWWCCPD 159 (Richardson), that found where the worker sustained only one loss, which had resulted from multiple injuries, then the cumulative effect of the injuries could be considered for the purposes of determining the worker’s s 66 entitlements). The appellant submitted that legislation is presumed not to alter common law doctrines unless expressly intended [82]–[85].

9. The appellant’s submission was rejected for the following reasons. First, Richardson did not establish a general legal principle; it considered the interpretation of the law as it existed at the time that case was determined in view of the unique circumstances of the case. That law has since been substantially amended, particularly with the enactment of s 65 of the 1987 Act and s 322 of the 1998 Act [86].

10. Second, the definition of “seriously injured worker” in s 32A requires that the degree of permanent impairment has been assessed, for the purposes of Div 4, to be more than 30 per cent. The reference to Div 4 in turn directs attention to s 65, which requires that, for the purposes of Div 4, the degree of permanent impairment that results from an injury is to be assessed as provided in that section and Pt 7 Ch 7 of the 1998 Act. Part 7 Ch 7 includes s 322 of the 1987 Act which sets out how impairments that result from the same injury, or impairments that result from more than one injury arising out of the same incident, are to be assessed. Section 322 does not provide for the aggregation of whole person impairments caused by multiple unrelated incidents to different body parts involving different pathology [87].

11. Third, in Richardson the worker suffered two unrelated injuries to his back resulting in a single loss (under the Table of Disabilities). In the instant case, the injuries sought to be aggregated involve different body parts, that is, injuries to the neck, right arm and back arising from separate and unrelated injuries [88].

12. The President did not accept that, even if Richardson was applicable to the current statutory regime (which it is not), there was anything that could be drawn from that authority that would support the aggregation of impairments arising from unrelated injuries to different body parts in order to meet a statutory threshold provision such as that found in s 32A [88].

13. The appellant also submitted that because the legislature has used the words “whose injury” in s 32A, thereby deliberately choosing different terminology to that used elsewhere in the legislation, the legislature has chosen words that are amenable to the plural form. The President did not accept that submission. When one considers the terms of ss 4, 9, 33, 65 and 322, it is abundantly clear that, considering s 32A in its setting in the legislation and the substance and tenor of the legislation as a whole, a contrary intention to the presumption created by s 8(b) of the Interpretation Act is powerfully demonstrated [89]–[90].

14. The appellant further submitted that no explanation had been provided as to why it is not simply a matter of applying the “combining tables” in order to determine whether an overall impairment of greater than 30 per cent has been reached. The Combined Values Chart does not apply because, in terms of multiple impairments, s 322 does not permit multiple impairments arising from separate and unrelated injuries being assessed as one single whole person impairment. To accept the appellant’s proposition would be to introduce into the legislation a mechanism for aggregating impairments that is simply not permitted [91].

15. Although there may be instances where the Combined Values Chart can be used by an independent medical examiner (see Wynyard Properties Pty Ltd v Reyes [2013] NSWWCCPD 23) to determine the degree of permanent impairment that has resulted from an injury, that is only in the circumstances dealt with in s 322. Even accepting that it was not necessary to have an AMS use the Combined Values Chart, that did not assist the worker, because it is not open to aggregate the different impairments in the circumstances of the case [92]­–[93].

Fire and Rescue NSW v S [2015] NSWWCCPD 50

Psychological injury; refusal to vacate fourth arbitration hearing date; alleged failure to adjudicate on worker’s criminal record; alleged failure to give reasons in assessment of medical evidence; causation; whether incapacity resulted from accepted psychological injury or from later criminal conduct; principles in Calman v Commissioner of Police [1999] HCA 60, 19 NSWCCR 40 discussed and applied; alleged denial of procedural fairness; whether injury wholly or predominantly caused by transfer; alleged failure to consider evidence relating to reasonableness of transfer; s 11A of the 1987 Act

Roche DP

26 August 2015

Facts:

This appeal concerned a claim for weekly compensation, medical expenses and lump sum compensation for a psychological injury suffered in 2006 and aggravated or exacerbated by later events at work in 2012 and 2013. The employer admitted that the worker suffered a psychological injury in 2006, but it disputed liability for any compensation from 2013 as a result of that injury. It also disputed whether the worker suffered an aggravation injury in 2012 and/or 2013.

As the worker was a fire station officer, cl 25 of Pt 19H of Sch 6 to the 1987 Act precluded the amendments made by the 2012 amending Act from applying.

The Application pleaded three injuries. First, in January 2005, the worker reported a fellow officer for having taken a fire truck on a joy ride with friends. After an investigation, the fire officer involved, who had gang associations, was dismissed. This led to the worker being harassed, alienated, bullied and intimidated, with threats of physical violence against him and his family. As a result of the aftermath of this incident, the worker developed a chronic adjustment disorder with anxiety and depressed mood.

The second pleaded injury related to a harassing (abusive) phone call that the worker received in the course of his employment on 19 June 2012, which resulted in a “recurrence/aggravation of [the] adjustment disorder”.

The third injury pleaded was that on the worker’s return from extended leave in April 2013, he was confronted by his Inspector with a threat/demand to transfer him to Redfern Fire Station. The proposed transfer had been the subject of previous proceedings and had not proceeded in 2012.

In support of his claim in the Commission, filed on 25 June 2013, the worker relied on evidence from his treating psychiatrist, Dr Dinnen, who had treated him virtually continuously since 2005, his treating general practitioner, Dr Adams, who had treated him for about 20 years, and from a consultant psychiatrist, Dr Gertler, who he saw at the request of his solicitors. The insurer relied on the evidence from Dr Kaplan, consultant psychiatrist, who saw the worker once, on 20 May 2014, and stated that the worker most likely had an adjustment disorder in 2005, which resolved within several years. Dr Kaplan thought that the worker’s continuing symptoms were consistent with a Generalised Anxiety Disorder, a condition that occurs in constitutionally predisposed individuals. He did not accept that it was caused by the worker’s work.

The issue of whether the worker’s incapacity from 30 April 2014 resulted from his work injury or injuries was further complicated because, on 22 April 2014, he was charged with having supplied a prohibited drug, a charge to which he pleaded guilty in early 2015. The appellant argued that any psychological condition beyond that date, and therefore any entitlement to compensation, was caused by the stress associated with those proceedings.

By the end of 2014, with the consent of the parties, the Commission had listed the matter for arbitration on three separate dates: 23 June 2014 (the matter was adjourned because the appellant’s solicitors had issued a Direction for Production on the New South Wales Police), 24 July 2014 (counsel for the appellant sought leave to rely on late documents and sought an adjournment to seek full compliance by the NSW Police with the Direction for Production) and 18 November 2014 (the matter was then adjourned to 19 January 2015).

On 5 January 2015, the appellant’s solicitors wrote to the Commission requesting that the hearing on 19 January 2015 be vacated because the worker’s sentencing hearing for the criminal charges was listed on 16 January 2015. The worker’s solicitors opposed the application and the Arbitrator confirmed that the hearing date would not be vacated.

The Arbitrator found in favour of the worker on all issues. The Commission made an award for the worker in respect of weekly compensation, s 60 medical expenses and remitted the matter to the Registrar for referral to an AMS to assess the worker for any whole person impairment resulting from psychological injury.

The Arbitrator found that the worker had also suffered separate aggravation or exacerbation injuries in 2012 and 2013. However, because the employer had not established that those injuries had been wholly or predominantly caused by reasonable conduct with respect to transfer, the employer had not made out its s 11A defence.

The employer appealed.

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

• failing to grant the appellant an adjournment (adjournment);
• denying the appellant procedural fairness by failing to take into account a significant and relevant consideration and properly adjudicating upon the worker’s criminal conduct (failing to adjudicate on the worker’s criminal conduct);
• failing to provide adequate reasoning as to why he preferred the worker’s experts over the opinions of Dr Kaplan (preferring the worker’s experts/causation);
• denying the appellant procedural fairness by ignoring statements relied upon and documentary evidence in support of a defence under s 11A of the 1987 Act and failing to provide adequate reasoning as to his rejection of that defence (s 11A), and
• denying the appellant procedural fairness by failing to disclose adequate reasoning as to the issue of causation in determining the injuries not admitted and incapacity (preferring the worker’s experts/causation).

Held: The Arbitrator’s determination confirmed.  

Ground 1: adjournment

1. While it was correct that the appellant’s solicitors wrote to the Commission on 5 January 2015 seeking to have the arbitration date of 19 January 2015 vacated, its reason for doing so was not the reason put by counsel for the appellant on the appeal. The email made no mention of the sentencing hearing being adjourned to 16 April 2015 and made no mention of the appellant being deprived of the opportunity to examine and consider all the materials relied upon for the purposes of sentencing. Significantly, counsel for the appellant during the arbitration made no application for an adjournment and raised none of the matters presented on appeal by the appellant [100]–[101], [103]–[105].

2. On the information in the email, and having regard to the history of the matter, the decision to refuse to vacate the hearing date involved no error. As the application to adjourn was not renewed on the hearing date, the Arbitrator was under no obligation to consider the issues of prejudice or any of the other matters raised by the appellant on appeal (see Brambles Industries Limited v Bell [2010] NSWCA 162) [111]–[112], [117].

3. Contrary to the appellant’s submissions, the prejudice to the worker, had the hearing again adjourned, would have been substantial as the resolution of his claim would have been delayed for a fourth time. The refusal to vacate the arbitration date involved no error and no injustice to the appellant. Had the arbitration been vacated, it would have caused significant prejudice to the worker, both as to costs and delay [113]–[114], [122].

Ground 2: failing to adjudicate on the worker’s criminal conduct

4. The appellant had not explained how the Arbitrator denied the appellant procedural fairness [126].

5. As submitted by the worker, the worker’s criminal conduct was not an issue for determination by the Arbitrator and he was not asked to “adjudicate” on that conduct. The Arbitrator had to consider the fact that the worker had been charged with criminal offences and the effect of those charges in the context of the onset of the worker’s continuing incapacity. The Arbitrator largely, but not exclusively, determined that issue by reference to the medical evidence [127].

6. The submission that the Arbitrator “barely touches” on the expert opinions to the effect that the criminal charges aggravated the worker’s pre-existing condition was incorrect. The submission that the Arbitrator did not “take into account” the competing opinions of Dr Kaplan, on the one hand, and those of Drs Dinnen and Gertler, on the other, was also incorrect [128]–[129].

7. The Arbitrator’s finding that the 2006 injury was causally related to and had resulted in the worker’s total incapacity was open on the evidence and involved no error [130]–[131].

8. It was open to the Arbitrator to accept Dr Dinnen’s opinion that the worker’s “continuing incapacity for work is due to the work related psychiatric disorder present throughout these years”. The submission that the Arbitrator’s failure to properly identify “the stresses and strains” under which the worker would be labouring denied the appellant an understanding as to why Dr Kaplan’s opinion was rejected was untenable [132], [133].

Grounds 3 and 5: preferring the worker’s experts/causation

9. An Arbitrator’s statutory obligation is to give “[a] brief statement ... setting out the Commission’s reasons for the determination” (s 294(2) of the 1998 Act). Proceedings are to be conducted with as little formality as proper consideration of the matter permits (s 354(1) of the 1998 Act) [141], [143].

10. The Arbitrator did not have to refer to all the evidence in detail (Mifsud v Campbell (1991) 21 NSWLR 725 at 728) [149].

11. The Arbitrator’s findings in relation to the evidence of Drs Dinnen, Adams and Kaplan were all open on the evidence and disclosed no error [150]–[153].

12. The Arbitrator’s acceptance that the effects of the 2006 injury continued and that the “underlying persistence of the condition ha[d] resulted in [the worker] having an ongoing vulnerability or ‘brittleness’”, which resulted in the worker “lacking resilience or capacity to be able to deal with many work place stressors or situations generally as compared [to] the likely situation had he not suffered and continued to suffer from the effects of the 2006 injury” were open on the evidence and involved no error [155].

13. The Arbitrator correctly noted that an injury can have multiple causes, that if the precipitating or proximate cause is not a work injury, “the resulting incapacity or need for medical treatment can still result from an earlier work injury” and that incapacity is not a necessary element in the chain of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; Calman v Commissioner of Police [1999] HCA 60, 19 NSWCCR 40 (Calman); Parmalat Australia Ltd v Cheadle [2008] NSWWCCPD 39) [161].

14. The appellant did not present a coherent medical case for the Arbitrator to consider. In these circumstances, it was not necessary for the Arbitrator to engage with Dr Kaplan’s evidence in any greater detail than he did. The Arbitrator’s reasons, read as a whole, made it clear that he did not accept Dr Kaplan’s opinions. That Dr Kaplan had only seen the worker once and Dr Dinnen had seen him many times over several years was a valid reason for preferring Dr Dinnen’s evidence [162]–[163].

15. Dr Kaplan’s opinion that the worker “most likely had an Adjustment Disorder in 2005 which had been resolved within several years” was contrary to the worker’s evidence, which was supported by Dr Dinnen and Dr Adams. It was open to the Arbitrator to accept the worker’s evidence, which necessarily involved rejecting Dr Kaplan’s evidence. It is not an error of law to omit to state expressly a finding that is clear on a fair reading of the decision-maker’s decision (Polglaze v Veterinary Practitioners Board (NSW) [2009] NSWSC 347) [164].

16. Dr Kaplan’s opinion that the worker suffered from a Generalised Anxiety Disorder, a condition that occurs in constitutionally predisposed individuals, and that there was no indication in the literature that this occurs on the basis of external stressors, was inconsistent with the actual experience in this case, documented by Dr Dinnen over several years [165]–[166].

17. The Arbitrator’s findings that the worker had been in receipt of psychological medication and management treatment on a regular and on-going basis since his injury in December 2006, that, in addition to psychotherapy, the worker had been taking anti-depressant and sedative medication to manage his condition on an on-going basis over many years, and, at the time of the police action, the worker was taking anti-depressant medication prescribed for him by his treating doctors as a result of the 2006 injury, were all open on the evidence and formed part of the Arbitrator’s reasons for his conclusion. The Arbitrator’s statements at [43] were consistent with the evidence and Calman [172]–[174].

18. That the history to Dr Adams on 26 April 2014, namely that there were no new stressors, was not accurate was of limited relevance. The appellant’s submission that Dr Adams certified the worker fit from 17 March 2014 was of limited, if any, relevance [176]–[177].

19. The submission that, after 17 March 2014 Dr Adams certified the worker unfit from the “date of that consultation” and that Dr Adams “post-dates it from 24 April 2014 through to 27 April 2014” was incorrect [178].

20. While the Arbitrator did not expressly refer to the appellant’s submission that the worker “downplayed” the significance of the criminal charges in his history to Dr Dinnen, that made no difference to the result. Dr Dinnen was well aware that the worker had been charged with the supply of a prohibited substance and his history provided a “fair climate” for the acceptance of his opinion. The (initial) non-disclosure of the criminal charges to Dr Kaplan did not mandate the rejection of the worker’s claim [180]–[181].

21. The submission “that Dr Dinnen’s reports over time had dissipated and that [the worker] had been working full-time as per his medical certificates and as per the clinical records of Dr Dinnen as at March of 2014” was not an accurate summary of the appellant’s submission before the Arbitrator [183]­.

22. The appellant’s submissions about alleged “objective facts” sought to conduct the appeal as a rehearing. That is expressly prohibited in a s 352 appeal [186].

23. The Arbitrator carefully considered the appellant’s submission that the criminal charges, and the ensuing court proceedings, were the sole or predominant cause of the worker’s incapacity after 30 April 2014 and did not accept it. That conclusion was open on the evidence and disclosed no error [187].

24. The contention that the Arbitrator’s decision denied the appellant an understanding as to why Dr Kaplan’s evidence was rejected was simply wrong. It was abundantly clear, from reading the Arbitrator’s reasons as a whole, why Dr Kaplan’s evidence was not accepted. The contention that there had been a significant denial of procedural fairness, by the Arbitrator’s alleged failure to provide adequate reasons, was also rejected. There was no basis for the submission that the appellant was denied procedural fairness in either the conduct or resolution of this case [190]­–[192].

Ground 4: section 11A

25. The appellant’s submissions involved a fundamental misunderstanding of s 11A and of the Arbitrator’s decision [197].

26. The Arbitrator found that the worker’s injury had been caused by the events at work in 2005 and 2006, and that his incapacity resulted from that injury. It was therefore not necessary for him to determine whether the events of 2012 and 2013 constituted injuries [198].

27. Therefore, the Arbitrator’s findings with respect to the phone call in 2012 and the events on 5 April 2013 were obiter. It followed that, as these findings were therefore not strictly necessary to support his conclusions, whether they were right or wrong did not determine the outcome on appeal [199].

28. The Arbitrator found that the phone call in 2012 was not action with respect to transfer and, if it was, it was not reasonable action. This finding was not challenged [202].

29. The Arbitrator found that the 2013 incident was not the whole or predominant cause of the worker’s injury. This conclusion was consistent with the evidence and s 11A [204], [206].

30. As the appellant could not establish that the injury was wholly or predominantly caused by the transfer, it did not matter if the action with respect to the transfer was reasonable. In the circumstances, it was not necessary for the Arbitrator to “adjudicate” on the statements from the appellant’s lay witnesses, which only went to the reasonableness of the transfer and not to whether the transfer was the whole or predominant cause of a psychological injury [207].

Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49

Hospital and medical expenses under s 60 of the 1987 Act; whether surgery reasonably necessary as a result of work injury; relevance of subsequent non-work injury; assessment of evidence; application to rely on fresh evidence or additional evidence on appeal; s 352(6) of the 1998 Act

Roche DP

24 August 2015

Facts:

The appellant worker was a kitchen hand at an aged care facility managed by the respondent employer. On 29 June 2014, the worker slipped and fell on wet tiles in the facility’s kitchen, landing on her right side and injuring her right knee, right hip, right hand and right shoulder. Liability was initially accepted and compensation paid. The dispute on appeal concerned a claim for the cost of surgery under s 60 of the 1987 Act to the worker’s right shoulder performed on 8 December 2014.

On 15 August 2014, Dr Cossetto, orthopaedic surgeon, recommended surgery for the worker’s knee and conservative treatment for her shoulder. On 18 August 2014, the worker saw Dr Miniter, orthopaedic surgeon, at the request of the respondent’s insurer. Dr Miniter said that the proposed surgery on the right knee should be expedited. He said that the right shoulder did not require surgical treatment and, apart from a very short course of physiotherapy, required no management.

At review on 24 October 2014, Dr Cossetto wrote to the worker’s general practitioner stating that the worker was recovering well from her recent right knee surgery. However, she continued to take analgesia, predominantly for ongoing significant pain in her right shoulder, which related to a significant bursal-sided deep partial thickness tearing of the rotator cuff supraspinatus tendon portion. In view of her ongoing discomfort, he advised her that she is “now ready to proceed with right shoulder arthroscopic subacromial decompression with rotator cuff repair” and he discussed the risks of the surgery with her.

On 28 October 2014, Dr Cossetto wrote to the insurer seeking approval for the cost of the proposed shoulder surgery, which had been booked for 8 December 2014. In a s 74 notice dated 12 November 2014, the insurer disputed liability for the proposed shoulder surgery, relying on Dr Miniter’s report of 18 August 2014. Significantly, the insurer did not dispute that the worker had injured her right shoulder in the fall at work.

On a date not precisely identified in the evidence before the Arbitrator, the worker suffered a non-work-related fall at a Coles’ supermarket, in which she hurt her right shoulder, lower back and left knee.

On 8 December 2014, Dr Cossetto performed surgery on the worker’s right shoulder. On 28 January 2015, Dr Cossetto provided a medicolegal report to the worker’s solicitors. He said that the worker had fallen at work on 29 June 2014, injuring her right shoulder, right hip, right knee and right hand. Dr Cossetto said that, given the ongoing severity of the worker’s right shoulder symptoms, he advised her on 24 October 2014 to proceed with the surgery. On 13 February 2015, the worker filed an Application to Resolve a Dispute, claiming $12,254.47 for hospital and medical expenses in respect of the shoulder surgery.

At the arbitration on 14 May 2015, the respondent submitted that the fall at Coles was a significant incident. The Arbitrator accepted the employer’s submissions, saying that she was not satisfied that the surgery was “reasonably necessary in the circumstances”. On 26 May 2015, the Commission issued a Certificate of Determination stating (incorrectly) that the “proposed treatment is not reasonably necessary”. The worker appealed.

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

• failing to determine the medical issue in dispute before her by reference to the medical opinions tendered;
• determining that the worker had not discharged the onus of proof;
• reversing the onus of proof against the worker in respect of the significance of the fall at Coles;
• determining in relation to “proposed right shoulder surgery” when the worker had already had the surgery;
• finding that the worker had not proved that the non-work-related fall occurred on a date after Dr Cossetto had recommended the shoulder surgery, and
• inferring that the increase in symptoms and reduced range of movement of the right shoulder after the fall at Coles indicated that there had been a change in pathology in the right shoulder when there was insufficient factual basis to draw that inference.

Held: The Arbitrator’s determination was revoked.  

Fresh evidence

1. The worker sought leave to rely on fresh or additional evidence on appeal. As explained by Barrett JA (Macfarlan JA agreeing) in Chep Australia Ltd v Strickland [2013] NSWCA 351, s 352(6) involves two threshold questions that are alternatives. The first goes to the issue of availability of the evidence in advance of the proceedings. The second involves an assessment of whether continued unavailability of the evidence “would cause substantial injustice in the case”. The power to admit the evidence is discretionary, but the discretion only becomes available if the Commission is satisfied as to one of the threshold matters [22], [29].

2. All of the evidence that the worker sought to tender on appeal was, with reasonable diligence, readily available at the arbitration and there was no satisfactory explanation as to why it was not obtained. In the circumstance, the worker had not established the first limb in s 352(6) [32].

3. It was therefore necessary for her to establish, if the fresh evidence is to be admitted on appeal, that the unavailability of the evidence “would cause a substantial injustice in the case”. Without the fresh evidence, it was determined on appeal that the Arbitrator erred on a number of material points and that the claim for hospital and medical expenses was to be re-determined. It followed that there was no injustice if the additional evidence was not admitted on appeal and the application to rely on it, on the appeal, was refused [33]–[34].

4. The profession was reminded, yet again, that it will only be in the most exceptional case that a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal or a trial run where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration [35].

Discussion and findings

5. The Arbitrator erred in her approach. It was surprising that, at the arbitration, the worker gave no evidence about the effect the fall at Coles had on her shoulder. However, on its own, that did not provide a proper basis for rejecting the claim. The issue was whether the shoulder surgery performed on 8 December 2014 was reasonably necessary as a result of the work injury on 29 June 2014. That required an analysis of the evidence from Dr Cossetto and Dr Miniter. Because of her mistaken view about the potential significance of the fall at Coles, the Arbitrator did not properly analyse that evidence [52]–[53].

6. The Arbitrator erred in saying that both counsel agreed that it was difficult to work out the date of the fall at Coles. Counsel for the worker submitted that the fall occurred in about mid November 2014, well after Dr Cossetto had recommended the surgery in his report of 24 October 2014. In other words, the fall at Coles did not provide a proper basis for the Arbitrator to reject the claim. The Arbitrator erred in rejecting that submission and in finding that the fall at Coles could not be “pinned down to a particular date”. The evidence established, with reasonable certainty, that the fall at Coles occurred after 12 November 2014. The submission that, as a result of the fall at Coles, the worker had more pain in her shoulder and a more reduced range of movement did not advance the respondent’s position [54]­–[55], [63].

7. The Arbitrator’s statement that there was some pathology present, which was “probably” caused by the fall at Coles, was entirely speculative. More importantly, even if the fall at Coles caused some additional pathology in the shoulder, and there was no evidence that it did, there was no evidence the surgery was required because of that additional pathology. The surgery Dr Cossetto recommended in October 2014, subacromial decompression with rotator cuff repair, was exactly the surgery he performed [56].

8. Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat the worker’s claim. That is because a condition can have multiple causes. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act [57]–[58].

9. The respondent’s submission that the appeal effectively sought a reconsideration of the evidence before the Arbitrator was incorrect. The respondent’s reliance on the decision of St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64 was misplaced. That case concerned a challenge to an Arbitrator’s evaluative judgment on the reasonableness of an employer’s actions in the context of s 11A of the 1987 Act. The authorities and issues in that case had no application to the present appeal [61]–[62].

10. The relevance of the respondent’s submission that Dr Cossetto did not address causation with respect to the right shoulder pathology generally was unclear. The issue was whether the surgery was reasonably necessary as a result of the work injury [67].

11. The respondent’s submission that Dr Miniter noted that there was no evidence of an acute injury to the shoulder seemed to suggest that the worker did not injure her shoulder at work on 29 June 2014. Such a submission was not open. The s 74 notice did not dispute that the worker injured her shoulder, but merely disputed that the (then) proposed surgery was not reasonably necessary as a result of the injury. It was therefore not open to contend that the worker did not injure her shoulder [68].

State of New South Wales v Rattenbury [2015] NSWWCCPD 46

Psychological injury; disease provisions; ss 4(b)(i) and (ii) of the 1987 Act; whether worker suffered an aggravation of a disease or contracted a disease in the course of his employment; whether employment the main contributing factor to the injury; causation; assessment of expert evidence; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399; meaning of “predisposition”; standard of proof; need for objective corroboration of complaints; application of principles in Chanaa v Zarour [2011] NSWCA 199; whether incapacity resulted from found injury; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463–4; 10 NSWCCR 796; “eggshell psyche” principle; application of principles in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249

Roche DP

12 August 2015

Facts:

This appeal concerned a challenge to an Arbitrator’s finding that the worker suffered an aggravation of a psychological condition due to events at work between 2011 and 2013 and that his employment was the main contributing factor to that aggravation. The essential issues on appeal concerned the assessment of expert evidence, causation and whether, if the worker suffered an injury, his employment was the main contributing factor to that injury.

The respondent worker was employed by the appellant employer as a radiographer at Moree District Hospital between January 2009 and April 2013. In late November 2012, the worker applied for six months leave from April 2013. He sought leave because he had been feeling increasingly stressed by his treatment at work and felt that he needed time away. That application was refused as the worker had not given a reason for needing leave. He again applied on 4 December 2012, saying he required leave because of stress at work, though gave no details of the stress.

On 28 January 2013, the worker made a written complaint of bullying against his superior, Ms Dunleavy, Mr Weslake, the chief radiographer and Ms Sweeney, an administration officer. In addition, he alleged that the failure to approve his leave was exacerbating his stress. On receipt of the complaint, the worker’s application for leave was approved and he commenced leave on 15 April 2013. He did not return to work.

The appellant investigated the worker’s complaints against Ms Dunleavy, issuing an initial investigation report to the worker on 23 August 2013. Further witnesses were interviewed and the worker was sent the final report shortly before December 2013. The delay in the investigation, and the worker’s concerns regarding the process, exacerbated the worker’s symptoms.

On 30 September 2013, the worker’s leave expired. In December 2013, the worker was advised by the appellant to return to work and that it had arranged for him to have psychological counselling. The worker indicated that he was unable to return to work and his general practitioner certified that the worker was unfit for work from 16 December 2013 as a result of an adjustment disorder with depressed mood as a consequence of bullying in the workplace.

In an Application to Resolve a Dispute filed on 17 November 2014, the worker claimed weekly compensation from 16 December 2013 to date and continuing, medical expenses and lump sum compensation for a whole person impairment of 24 per cent. On 1 May 2015, the Commission issued a Certificate of Determination awarding the worker weekly compensation, hospital and medical expenses and the matter was remitted to the Registrar for the worker to be assessed by an AMS to certify the degree of whole person impairment. The employer appealed, challenging the Arbitrator’s findings and orders dealing with injury and causation, but not the finding under s 11A.

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

• finding that the worker suffered injury as defined in s 4(b)(ii) of the 1987 Act without identifying the disease which was said to have been aggravated and without providing any or any proper reasons for the finding that any disease had been aggravated (injury);
• accepting the evidence of Ms Melville (the treating psychologist) as to causation (Ms Melville’s evidence);
• finding that the worker’s employment was the main contributing factor to the aggravation of an underlying disease (causation/main contributing factor);
• attributing to the events relied upon by the worker causal significance in the development of, or material aggravation of, his psychiatric condition, when the evidence did not support that approach (causation/main contributing factor);
• failing to find that the worker’s psychiatric condition was caused by or materially aggravated by factors arising other than out of or in the course of his employment, and that its consequences were thus non-compensable (causation/main contributing factor);
• failing to deal with the submission, and in failing to find, that the worker’s incapacity for work resulted not from any injury arising out of or in the course of his employment, but from non-compensable factors which caused or aggravated his psychiatric condition (causation/main contributing factor), and
• finding that the worker’s incapacity resulted from any injury arising out of or in the course of his employment with the appellant (incapacity).

Held: The Arbitrator’s determination confirmed.  

Injury

1. While it was accepted that a mental illness, such as depression, is a disease (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 632; Rail Corporation New South Wales v Hunt [2009] NSWWCCPD 114 at [46] to [69]), there was no evidence that the worker suffered from any mental health illness prior to starting work for the appellant. The worker’s evidence was that he had not suffered any mental health problems prior to the events the subject of the claim. The histories recorded by Ms Melville and Dr Roberts were consistent with that evidence [36].

2. A mere predisposition to the development of a disease will not, on its own, establish the existence of a disease that can be later aggravated by events at work. A predisposition means no more than “a tendency in a person to react in a certain way” and “a physical condition which makes a person susceptible to a disease” [39].

3. There was no evidence to support the Arbitrator’s “suspicion” that the worker had more than a “mere predisposition” to psychiatric problems when he started to develop symptoms in 2011. Being predisposed to a disease is quite different to having a disease that is later aggravated. The worker’s evidence that he had not previously suffered from any mental health problems or symptoms, corroborated by histories recorded by Ms Melville and Dr Roberts, was compelling evidence that he did not suffer from a disease prior to the events complained of with the appellant [41].

Ms Melville’s evidence

4. The appellant’s criticism of Ms Melville’s evidence was without foundation. The fact that she saw the worker in December 2013 was, on its own, of limited relevance. Significantly, Ms Melville took no history of any non-work cause of the worker’s psychological condition. All of these matters were consistent with the worker’s evidence, which the Arbitrator clearly accepted as being correct [54].

5. It was of no consequence that the Arbitrator did not accept that the worker had been “bullied or harassed”. That expression was no more than a short hand method of describing events at work that are perceived by the claimant to have created a hostile environment. Consistent with State Transit Authority of New South Wales v Chemler[2007] NSWCA 249(Chemler), the question was whether real events occurred at work that the worker perceived as creating such an environment and whether they caused a psychological injury [59].

6. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s evidence to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (per Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [85]; 80 NSWLR 43; 8 DDCR 399) [55].

7. To the extent that an expert has based his or her opinion on assumed facts, those facts do not have to be the real facts, but only the facts asserted (Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [101]–[102]; [105]–[134]). The asserted facts do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” and whether they provide a “fair climate” for the acceptance of the opinion (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510) [56].

8. As Ms Melville’s history was “reasonably similar to the facts” the Arbitrator found, her history provided a “fair climate” for the acceptance of her opinion and the appellant’s first point under this heading was rejected. Further, Ms Melville’s opinion was not speculative. The appellant’s reference to the worker suffering gastroenteritis did not diminish the probative value of Ms Melville’s evidence and did not establish any relevant error by the Arbitrator [60].

9. While Ms Melville’s opinion did not support a finding of an aggravation injury under s 4(b)(ii), her opinion clearly supported a finding that the worker suffered an injury under s 4(b)(i). Though Dr Nichols’ history was less than ideal, it provided a fair climate for the acceptance of his opinion [61], [63].

10. It was clear from reading the Arbitrator’s decision as a whole that he accepted the worker’s evidence that events at work caused him to feel stressed and unwell. That finding was open and disclosed no error [66].

Causation/main contributing factor

11. The Arbitrator was correct to state that there was no support for the proposition that organic factors had caused the worker’s condition and that that suggestion was “no more than speculation” [82].

12. The suggestion that Dr Nichols supported the likelihood of organic factors causing the worker’s condition was simply wrong. It was accepted that the evidence demonstrated that the worker was an example of the “eggshell psyche” principle discussed in Chemler [83].

13. The alleged failure to differentiate between events arising out of or in the course of the worker’s employment and the worker’s fixation with the claims process overlooked the fact that, after stopping work in April 2013, but while still employed by the appellant, the worker was constantly contacted at home, by phone, email and in person, by the appellant’s representatives. The investigation, and the contact about it while the worker was on leave, was directly related to his employment. Thus any injury that resulted from that contact clearly arose out of the worker’s employment [85].

14. The appellant’s reliance upon the decisions of Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32 and Stewart v New South Wales Police Service [1998] NSWCC 57; (1998) 17 NSWCCR 202 was misplaced. The suggestion that the worker suffered from a “straight litigation neurosis” was completely without substance and was rejected [86],[89].

15. There can be multiple causes of an incapacity (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; Calman v Commissioner of Police [1999] HCA 60; 73 ALJR 1609; Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 at 585; Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1979] 2 NSWLR 435). It is not necessary that employment be the main (or substantial) contributing factor to the incapacity. It only has to be the main contributing factor to contracting the disease [91].

16. Though it may well have been helpful if the worker had seen a doctor earlier than December 2013, the fact that he did not was not fatal to his claim. Given that, prior to the events with the appellant, the worker had no psychological symptoms or disability, it was not open to find that his employment was only a 50 per cent contributing factor to his condition [92]­–[94].

17. Having a predisposition or susceptibility to a condition is not the same as having the condition. It merely means that the person is more vulnerable to develop a condition than another person may be (Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34). It would be different if the worker had demonstrated symptoms of a psychological illness before starting with the appellant. Then, however, the question would be whether the employment had been the main contributing factor to the aggravation of his condition [94]–[95].

18. The Arbitrator’s conclusion that the worker’s employment with the appellant was the “overwhelming” factor in the cause of his injury was correct. However, that injury was a s 4(b)(i) injury not the s 4(b)(ii) injury found by the Arbitrator [97].

19. The Arbitrator did not overlook material facts, or give undue or too little weight in reaching his conclusions. Save for the finding under s 4(b)(ii), the evidence comfortably supported the conclusions reached [99].

20. In accepting some evidence over other evidence, an Arbitrator has to weigh a myriad of competing factors. However, in a civil case, notwithstanding that the decision maker may have a “hesitation” before reaching a conclusion, the standard of proof is satisfied if he or she feels actual persuasion that a fact exists. The Arbitrator’s reasons, when read as a whole, comfortably established that he was satisfied that the worker had made out his case on the balance of probabilities. On appeal, the Deputy President reached the same conclusion on the s 4(b)(i) issue [100].

21. It was accepted that the Arbitrator did not consider if Ms Melville’s evidence supported a conclusion that the worker contracted a disease in the course of or arising out of his employment. It was held on appeal that the worker contracted a disease (a psychological illness, most likely major depression) in the course of his employment and that his employment was the main contributing factor to contracting the disease [102].

Incapacity

22. The Arbitrator’s finding was open on the evidence and the authorities, which made it clear that an incapacity can result from multiple causes. Save for the s 4(b)(ii) finding, which was replaced by a finding of an injury under s 4(b)(i), the Arbitrator’s approach and conclusion involved no error. Given that an incapacity can result from multiple causes, the finding that the worker’s incapacity had resulted from his injury was consistent with the evidence [104]–[107].

Sirikci v Hewlett Packard Australia Pty Ltd [2015] NSWWCCPD 45

Bipolar disorder; whether short period of employment was the main contributing factor to the contraction and or aggravation, acceleration, exacerbation or deterioration of the disease; s 4(b)(i) and (ii) of the 1987 Act; injury based on perception of real events; application of State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286

Keating P

10 August 2015

Facts

This appeal concerned a challenge to an Arbitrator’s finding that the worker did not suffer a psychological injury by reason of alleged bullying and harassment by her manager, through a series of emails and phone calls over a two week period of employment.

The appeal also challenged the Arbitrator’s finding that the worker’s employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a pre-existing bipolar disorder.

The worker was a sales analyst for the respondent. As her manager was based in another state they communicated daily via email, telephone or instant message. She ended her contract after a two week period of employment, following what she described as a period of constant abuse from her manager.

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

• finding that the worker’s employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her bipolar disorder;
• not accepting the consultant psychiatrist’s diagnosis of mild adjustment disorder caused by the actions of the manager;
• finding that the worker’s bipolar disorder was “beginning to manifest itself”, and
• misapplying the definition of “injury” by confusing causation of aggravation of her condition at the time of the alleged injury with her condition at the time of the assessment by the consultant psychiatrist.

Held: The Arbitrator’s determination was confirmed.

Was the worker’s employment the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her bipolar disorder?

1. The Arbitrator accepted that the worker was distressed by the manner in which the manager spoke to her and/or by the email exchanges between them. He also accepted that the worker perceived the manager was harassing and bullying her [76].

2. Notwithstanding her perception of events in the workplace, the worker failed to satisfy the Arbitrator, on the balance of probabilities, that a psychological injury resulted or that her treatment by the manager was the main contributing factor to the aggravation of a pre-existing condition. In addition, she failed to satisfy the onus of establishing that the condition of which she complained arose out of or in the course of her employment under s 4 [79]–[80].

3. The consultant psychiatrist found that the worker’s condition had an insidious onset over many years. The Arbitrator’s acceptance, based on medical evidence, that the worker was prodromal at the time she commenced her two week period of employment with the respondent was open on the evidence and disclosed no error [81].

4. Given the evidence of pre-existing psychological symptoms, for which the worker was seeking treatment prior to commencing employment with the respondent, the short period of employment, and the consultant psychiatrist’s evidence, it was open to the Arbitrator to conclude that any symptoms displayed by the worker were the emerging symptoms of the underlying bipolar disease manifesting itself [82].

Did the Arbitrator err by not accepting the consultant psychiatrist’s diagnosis of an adjustment disorder?

5. This alleged error was based on the false assumption that the consultant psychiatrist diagnosed the worker with a “mild adjustment disorder”. The consultant psychiatrist considered the possibility of a diagnosis of a mild adjustment disorder, however, after considering all relevant material she excluded that possibility, finding on balance that the worker suffered a pre-existing bipolar condition and that work played no part in her condition. There was no other evidence to support a diagnosis of an adjustment disorder. In those circumstances, this ground of appeal was rejected [90]­–[94].

Was the worker’s pre-existing bipolar disorder beginning to manifest itself at the time of the alleged injury?

6. The Arbitrator concluded that it was more likely that what occurred (at work) was the manifestation of the bipolar disorder. That finding was open for the reasons discussed above and therefore no error was demonstrated [97]–[98].

Was the employment the main contributing factor to the aggravation of the disease process?

7. This ground was in substance a repeat of the submissions in support of the first ground, which were rejected [101].

8. The Arbitrator’s findings demonstrated that he was not satisfied that the worker suffered an injury during her brief period of employment with the respondent. That was a question of fact and was open on the available evidence [103].

9. Further, the Arbitrator’s findings demonstrated that he accepted the worker suffered from a disease condition, however he was not satisfied that the employment was the main contributing factor to the contraction, aggravation or exacerbation of the disease. That was because, at the relevant time the worker was prodromal and the symptoms displayed were symptoms of the bipolar disease manifesting itself. Those findings were open on the evidence for the reasons stated above [104].

Yucel v AAES Pty Ltd t/as Roadtrack [2015] NSWWCCPD 51

Findings of fact; application of the principles in Nguyen v Cosmopolitan Homes [2008] NSWCA 246; appellate intervention on findings of fact and application of Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472

Keating P

31 August 2015

Facts

This appeal concerned a challenge to the Arbitrator’s factual finding that the appellant failed to satisfy the Commission, on the balance of probabilities, that he was injured in the circumstances alleged.

The appellant was a mechanic. In February 2003, the appellant was allegedly approached by the respondent about servicing trucks for its transport business. Shortly after, the appellant commenced servicing trucks for the respondent. The nature of that work relationship was not clear.

The appellant’s claim for compensation related to two incidents which allegedly occurred while he was servicing the respondent’s trucks, on or about 15 or 16 August 2003 and on 26 September 2003. The occurrence and mechanism of injury was subject to dispute.

The appellant made a claim for compensation for injury to the cervical spine, lumbar spine and upper digestive tract. The date of injury was identified as 16 August 2003, 26 September 2003 and the nature and conditions of employment. That claim was made in 2010, several years after the alleged injury. The respondent’s insurer denied the claim on the basis that there was no contemporaneous record of any injury prior to the making of the claim, and, if there was it was not compensable within the meaning of ss 4 and 9A of the 1987 Act.

The Arbitrator found in favour of the respondent. Essentially the Arbitrator was not satisfied that the appellant had discharged the onus of establishing that he was injured in the circumstances alleged.

The issues on appeal were whether the Arbitrator erred in:

• not finding injury to the cervical and lumbar spine;
• applying the test in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) “which is applicable to proof of facts from circumstantial evidence”;
• not considering the whole of the evidence in relation to employment when considering the credibility of the appellant, and
• “concluding that [the appellant’s treating general practitioner’s] note of ‘Upper and lower back pain’ as set out in his clinical notes of 16 August 2003 back pain could have been a note about non-descript back pain and not the pain suffered in an accident”.

Held: The Arbitrator’s determination was confirmed.  

Ground one

1. The clinical notes evidenced a long history of treatment extending back to August 2001. However, for reasons which were not explained, they did not include any notes for the consultation that was said to have taken place on 16 August 2003. For the details of that consultation the appellant was dependent upon a letter from another general practitioner (from the same practice), which referred to the alleged entry. Accepting that the appellant saw the doctor on 16 August 2003, and reported symptoms in the terms reported in the letter, that did not support his case because there was no history of the alleged injury, said to have taken place the previous day, recorded in the notes [84].

2. It was open to the Arbitrator to conclude that the appellant’s credit had been damaged by the revelation that he had been able to work for a substantial number of hours on the day following the first alleged injury. That evidence was at odds with the appellant’s earlier statement to the contrary. Further, the appellant’s evidence when challenged about that inconsistency was unconvincing [85]–[86].

3. The Arbitrator considered at length any contemporaneous evidence, or indeed any evidence, that may have corroborated the appellant’s claims. Not only did this fail to reveal evidence corroborative of his allegations, it revealed a considerable body of evidence to the contrary [87].

4. The only two objective facts which militated against the findings made by the Arbitrator, or indicated that she failed to use or palpably misused her advantage, were the fact that the appellant apparently saw his general practitioner on 16 August 2003, and second, that he submitted to a CT scan of the lumbosacral spine on 19 August 2003, that being within a few days of the alleged initial incident [89].

5. The Arbitrator clearly weighed those facts with all of the evidence before reaching her conclusion. On all of the evidence it was open to the Arbitrator to find that the inconsistencies in the evidence were sufficient to raise real doubt that the alleged injuries occurred. On this basis, the President did not accept that the Arbitrator had erred (Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 applied) [88]–[90].

Ground two

6. The President was satisfied that the Arbitrator applied the correct civil standard. The Arbitrator clearly determined the case on the balance of probabilities. She carefully analysed the appellant’s evidence and any contemporaneous material in the histories contained in the various doctors’ reports. She concluded, based on the test in Nguyen, that the appellant had not satisfied the onus. The Arbitrator identified the relevant test and applied it to the facts as found. No error was demonstrated [95].

Ground three

7. Having determined that the appellant failed to satisfy the onus that he suffered a s 4 injury, the Arbitrator was not required to consider the “worker” issue or any of the remaining defences raised in the s 74 notices [98].

8. The President added that, it did not follow that because the appellant gave a detailed account of how the accident occurred the Arbitrator was bound to accept that it happened. The appellant bore the onus of establishing that the accident occurred in the circumstances he claimed. The Arbitrator weighed the appellant’s evidence against the remaining evidence in order to reach her conclusion. The Arbitrator did not accept the appellant’s evidence for the reasons stated above [100].

Ground four

9. As the Arbitrator noted, the appellant submitted to a CT scan on 20 September 2001 of the lumbar spine which indicated that he was suffering back symptoms prior to the alleged injury. Further, the appellant conceded, in his amended statement, that prior to the alleged injury he was still symptomatic from the effects of a previous motor vehicle injury in 1986. In the context of that history, and for the reasons stated above, it was open to the Arbitrator to determine that, without reference to the alleged injury, the general practitioner’s evidence did not add weight to the appellant’s claims of an injury on 15 August 2003 [103]–[104].