Alexakis v Caterair Airport Services (Sydney) Pty Ltd - [2006] NSWWCCPD 274

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Alexakis v Caterair Airport Services (Sydney) Pty Ltd [2006] NSWWCCPD 274
APPELLANT:  Theodoris Konstantine Alexakis
RESPONDENT:  Caterair Airport Services (Sydney) Pty Ltd
INSURER:Vero Workers Compensation (NSW) Limited
FILE NUMBER:  WCC6597-04
DATE OF ARBITRATOR’S DECISIONS:        4 May and 27 July 2006
DATE OF APPEAL HEARING:  12 October 2006
DATE OF APPEAL DECISION:  18 October 2006
SUBJECT MATTER OF DECISION: Reasons; psychological injury; admission of late documents; section 11A Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:Oral
REPRESENTATION:  Appellant:      Peter Alexakis
Respondent:   Mr Saul of counsel instructed by Hunt & Hunt

ORDERS MADE ON APPEAL: Subject to the additional findings made in this decision, the decisions and rulings of the Arbitrator dated 4 May and 27 July 2006 are confirmed.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 2 June 2006 Theodoris Konstantine Alexakis (‘the Appellant Worker/Mr Alexakis’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 May 2006.

The Respondent to the Appeal is Caterair Airport Services (Sydney) Pty Ltd (‘the Respondent Employer/Caterair’).

Mr Alexakis was born on 22 November 1965 and started work with Caterair on as a casual cold food catering assistant on 10 May 2001 and was made a permanent casual on 13 August 2001. He previously worked for Caterair for about 12 months in 1994 or 1995. On 11 September 2001 he was lifting a box filled with bottles of water in the course of his employment with Caterair when he sustained injury. The exact nature and extent of his injury is the subject of dispute and will be discussed in detail below. He worked on suitable duties until 15 December 2002 and his employment was terminated on 30 May 2003. His claim for compensation was initially accepted and voluntary payments made until 26 July 2002.

In addition to the injuries sustained on 11 September 2001 Mr Alexakis also alleges that he sustained a physiological injury on 15 March 2002 when he was wrongly accused of being in possession of chocolates on his employer’s premises and again on 13 June 2002 when an issue arose as to whether he had left work earlier than his sign off time. Liability for both the March and June 2002 incidents was disputed by Caterair on the grounds that Mr Alexakis either suffered no injury or, if he did suffer an injury, the provisions of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) apply and it has no liability.

An Application to Resolve a Dispute (‘the Application’) was filed in the Commission on 27 April 2004 alleging injury to the neck, back and both arms as a result of the 11 September 2001 incident and alleging a psychological injury as a result of the 15 March and 13 June 2002 incidents. An allegation of injury as a result of “nature and conditions” was also included in the Application and is discussed below. Weekly compensation was claimed from 12 December 2001 and lump sum compensation was claimed under the Table of Disabilities in the sum of $6,000.00 in respect of 10% permanent impairment of the back, $8,000.00 in respect of 20% permanent impairment of the neck, $7,500.00 in respect of 10% loss of efficient use of the right arm at or above the elbow and $16,000.00 in respect of 20% loss of efficient use of the dominant left arm at or above the elbow. In addition, compensation was claimed in the sum of $23,000.00 in respect of 17% whole person impairment as a result of the alleged psychological injury or injuries said to have been sustained in March and June 2002. Compensation for pain and suffering was claimed in the sum of $80,000.00.

The claim has had a lengthy history in the Commission, and in the Compensation Court of NSW before that. That history is partly set out in the decision of Deputy President Fleming in Caterair Airport Services Pty Ltd v Alexakis [2005] NSWWCCPD 73 but it is not necessary for me to recount it here as it is not relevant to the present appeal.

After encountering several procedural problems the matter was listed for conciliation and arbitration before a Commission Arbitrator on 10 April 2006. The matter could not resolve and proceeded to Arbitrator on that day. No oral evidence was given but lengthy submissions were made by counsel for the Respondent Employer and by Peter Alexakis, the Appellant Worker’s brother, who appeared as his advocate at the Arbitration and on appeal. In a reserved decision delivered on 4 May 2006 the Arbitrator found in favour of Mr Alexakis in respect of his neck and left arm injury on 11 September 2001 but found against him in respect of the alleged psychological injuries said to have resulted from the March and June 2002 incidents. No specific findings were made in respect of the alleged injuries to the back and right arm and no findings were made in respect of the allegation of injury as a result of “nature and conditions”.

On 25 May 2006 the Respondent Employer sought a reconsideration of the Arbitrator’s decision in respect of the compensation ordered to be paid for the period 27 July 2002 to 15 December 2002. Each party made further submissions on the reconsideration and on 27 July 2006 the Arbitrator revoked the orders made on 4 May 2006 and a further Certificate of Determination was issued. The Arbitrator’s findings and reasons are set out in his decisions of 4 May and 27 July 2006 which are to be read together.

Mr Alexakis seeks leave to appeal these decisions.

LEAVE TO APPEAL

Monetary Threshold

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has yet been made for lump sum compensation but the Arbitrator’s findings would result in the Respondent Worker receiving no compensation in respect of his claim for his back, right arm or for any psychological injury and, therefore, the second limb of section 352(2) does not apply to that part of the claim (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 27 July 2006, records the Arbitrator’s orders as follows:

“1.The orders of 4 May 2002 are revoked.
2.Respondent to pay $160.34 per week from 27 July 2002 to 6 October 2002, $199.50 per week from 7 October 2002 to 13 October 2002, $160.34 per week from 14 October 2002 to 15 December 2002 and $284.73 per week from 16 December 2002 [to] date and continuing pursuant to s40.

3.Respondent to pay s60 expenses.
4.I refer the assessment of permanent impairment of the neck and loss of use of the left arm at or above the elbow to an AMS.

5.Respondent to pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)failing to make a finding of injury to the Appellant Worker’s back and right arm as a result of the injury on 11 September 2001, or as a result of the nature and conditions of employment (‘injury-back and right arm’);
(b)failing to refer the question of impairment of the Appellant Worker’s back and loss of use of right arm at or above the elbow to an Approved Medical Specialist (‘AMS’) for assessment (‘referral to AMS’);
(c)finding that the Appellant Worker did not suffer a psychological injury as a result of incidents on 15 March 2002, 13 June 2002, or as a result of the nature and conditions of employment (‘psychological injury’);
(d)refusing the Appellant Worker leave to rely on the documents contained in the Application to Admit Late Documents filed on 20 February 2006 and on 4 April 2006 (‘late documents’), and
(e)finding that the Appellant Worker’s ability to earn between 15 December 2002 and 30 May 2003 was $450.00 per week (‘ability to earn’).

An issue also arises on appeal because the transcript of the proceedings before the Arbitrator is incomplete. No oral evidence was given before the Arbitrator. However, substantial parts of the submissions made on behalf of the Appellant Worker have not been transcribed. As a result of that omission the appeal has been conducted as an oral hearing and each party has been given the opportunity to make submissions supplementing their written submissions. The Appellant Worker has been given the opportunity to repeat before me any relevant submissions he made to the Arbitrator that were not recorded and transcribed. Those submissions were made on behalf of the Appellant Worker by his brother, Peter Alexakis, who addressed me for approximately five hours on 12 October 2006.

In these circumstances, and having particular regard to the fact that no oral evidence was given before the Arbitrator, I do not believe the ‘review’ process has been impeded or that there has been any denial of procedural fairness as a result of absence of a complete transcript.

FRESH EVIDENCE

‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:

“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”

Whilst the Appellant Worker has not made a formal application to rely on fresh evidence on appeal, he argues that the Arbitrator was in error in refusing to admit certain late documents into evidence at the Arbitration hearing and he seeks to have those documents introduced as fresh evidence on appeal. This matter is dealt with below under ‘late documents’.

UNREPRESENTED PARTY

In the present case the Appellant Worker has been skilfully represented by his brother, both on appeal and before the Arbitrator. Also present during the appeal was Mr Alexakis’ younger brother (Dimitrios) who from time to time during the appeal made comments to Peter Alexakis to assist in the presentation of the case. I am confident that everything that could reasonably have been put on behalf of the Appellant Worker was put by Peter Alexakis.

I am satisfied that the Commission has complied with the provisions of the Commission’s Access and Equity Service Charter.

THE CLAIM

The Arbitration hearing proceeded on the basis of the Application filed on 27 April 2004. Before the hearing commenced there was a discussion between the parties as to the cause of Appellant Worker’s injuries and the Arbitrator stated “if the matter proceeds now, it’s on the basis of what has been pleaded, not including that date as to injury” (Arbitration transcript, page four line 49). The reference to “that date” is a reference to an incident alleged to have occurred on 18 January 2003.

The Appellant Worker agrees that no amendment was made to the Application but submits that the allegation of “nature and conditions” was a general allegation that included an allegation of psychological injury as a result of all events that occurred at work up to 15 December 2002. Mr Saul, counsel for the Respondent Employer, submits that the nature and conditions claim was restricted to the physical injuries and the psychological injury, if any, was alleged to have resulted from two specific events: first, on 15 March 2002 when the Appellant Worker was spoken to about being in possession of chocolates at work and, second, on 7 June 2002 (pleaded as 13 June 2002) when the Appellant Worker allegedly left work at 3.00pm but signed off that he had left at 4.00pm.

The Arbitration transcript does not help to resolve this issue and when it was raised on appeal Peter Alexakis, after speaking to the Appellant Worker, was not prepared to concede that the matter proceeded on the basis asserted by Mr Saul. The Arbitrator’s Statement of Reasons for Decision (‘Reasons’) dated 4 May 2006 does not refer to the “nature and conditions” claim, either in respect of the physical injury or the alleged psychological injury. The Arbitrator has divided his Reasons into subheadings dealing with “Injury on 11 September 2001” (Reasons, page four) and “PSYCHIATRIC INJURY ON 15 MARCH 2002 and 13 JUNE 2002” (Reasons, page seven). Mr Saul submits that this reflects the way the case was presented and argued at the Arbitration. Whilst this submission is consistent with the general structure and reasoning in the Arbitrator’s decision, the end result is that the Arbitrator has not expressly dealt with the “nature and conditions” claim, either in respect of the psychological injury, or the physical injuries, and has not made any findings in respect of the alleged injury to the back or right arm. This failure constitutes an error because the Arbitrator has not dealt with parts of the claim pleaded (though never properly particularised) in the Application. If it was agreed that the case would be presented and determined in the manner set out in the Arbitrator’s decision, that agreement has not been formally recorded on the transcript or in the Arbitrator’s Reasons.

When this issue was raised on appeal I asked Peter Alexakis if the Appellant Worker consented to the matter being redetermined by me on review or if he wished the matter to be remitted to the Arbitrator for redetermination. He indicated that the Appellant Worker consented to the matter being reassessed by me.

In these circumstances I intend to assess and determine his claim in respect of the alleged injury to his back and right arm resulting either from his injury on 11 September 2001 or from the nature and conditions of his employment up to 15 December 2002. The alleged psychological injury will be dealt with according to the issues raised on appeal and in the submissions made.

THE EVIDENCE

The Appellant Worker’s evidence is set out in two statements identified as ‘Deposition A’ dated 20 January 2004 (‘the first statement’), ‘Statement B’ dated 4 May 2004 (‘the second statement’) and in various letters and medical reports which I will refer to as appropriate. The first statement is headed as follows:

“From:Theodoros K Alexakis
To:Workers Compensation Commissioner
Subject:Accidents – Body (Left handed)
Date:11-9-01
Subject:Accidents – Psychological
Date:15-3-02, 13-6-02
Respondents: CATERER [sic] AIRPORT (SYDNEY)”

The Appellant Worker’s duties were to place ingredients such as salad, biscuits, butter, water and milk into plastic boxes and to then place the boxes onto trays which were wheeled into a cool room (the first statement, page three). The work also required him to raise his hand up to head height to reach the boxes. He stated that he had to carry a “big box” weighing 65-70 kilos from a distance of 100 metres or more. It is not identified how often the “big box” had to be carried.

On 11 September 2001 Mr Alexakis lifted a 15 kilo box containing small bottles of water when he felt and heard a cracking noise in his left shoulder. The incident was reported at work and he attended on Dr Hasnani, his general practitioner, on 12 September 2001 complaining of pain in the left shoulder. Dr Hasnani certified Mr Alexakis unfit for work on 17 and 18 September 2001 and fit for suitable duties from 19 September 2001.

A statement was also tendered by Thiyagi Velupillai, the Respondent Employer’s food services manager. In it he describes Mr Alexakis’ duties as follows:

“7.Mr Alexakis was employed by the company in the capacity of Casual Cold Food Catering Assistant.
8.In this role his duties were mainly to prepare salads and fill individual airline catering trays.

9.The tasks involved were cleaning by way of washing salad ingredients such as lettuce, tomatoes. He would put a quantity of salad ingredient into a colander and wash it in a sink. He would then put pre-determined portions into the trays and repeat the process as required. The completed salad portions are then put into the airline food carts. I also produced a copy of his job description.

10.His restricted duties were that he was not to lift any more than 2 kilograms at one point and this was eventually raised to 7 kilograms. I recall that at some point he was allowed a 10 minute break every hour. As to his actual duties and restrictions these changed numerous times.

11.His normal hours of duty were 8 hours with 2 breaks of 20 minutes each. The first was taken after 3 hours and the second 2 hours after the first.

12.I would describe his work performance as poor, he lacked motivation and would question authority when given specific instructions or advice on how to go about a task. In respect of complaints he was always complaining about something and his attitude at times was belligerent and he upset other members of staff when he shouted and raised his voice.”

On 2 November 2001 the Appellant Worker saw Dr Goldberg who noted that his left shoulder was non tender on examination and exhibited a full range of movement. However, Mr Alexakis’ neck was tender as was the left trapezius muscle. Extension of the neck reproduced his pain and his neck movements were limited. The doctor took no history of pain in the right upper limb or in the back. In his first statement, Mr Alexakis said “a few days before I went to see doctor Goldberg, my pain would shift in [sic] other parts of my body. Initially on my neck, and later on my back” (the first statement, page four).

On 14 November 2001 Mr Alexakis underwent a cervical CT scan which showed minor disc bulging at C4/5.

Mr Alexakis changed his general practitioner to Dr Criticos in November 2001.

Certificates from Dr Criticos in November 2001 refer to “exacerbation [sic] pain in both shoulders”.

In his first statement Mr Alexakis refers to his back pain “growing” at the end of 2001 and beginning of 2002 (the first statement, page five). As a result he asked to be referred to a specialist for his back which request was declined by Dr Criticos. Mr Alexakis then changed to Dr Tadros in February 2002 who referred him to Dr Cohen, consultant physician. Dr Cohen examined Mr Alexakis on 21 February 2002 and reported to Dr Tadros on 28 February 2002. Dr Cohen reported at page one:

“Before reporting in detail, I would make two comments: firstly I do not believe that Mr Alexakis does suffer from any significant disease or damage process, although he is very fearful that he does so; and secondly that he appeared not at all pleased when I attempted to explain to him the fundamentally benign somatic nature of his predicament. However, it does appear that this problem has occurred in a difficult industrial context.”

Dr Cohen reported Mr Alexaki as describing “his shoulder problem as being better but reported sensitivity of his upper back to air conditioning”. The doctor added:

“He was currently working at light duties but not every day, as he is in a rehabilitation program where lifting restrictions to less than 5kg are placed. He has apparently rigidly adhered to medical restrictions regarding lifting and these restrictions determine his reported disability.”

The doctor noted the CT scan of 14 November 2001 and commented that he believed it was within normal limits, as was the plain x ray of the left shoulder taken in September 2001. Whilst Dr Cohen refers to the pain spreading to “both shoulder regions” in November 2001 he does not provide any support for a finding of a work injury to the right shoulder or the back. The doctor added that Mr Alexakis was “clearly angry that the employer has apparently taken no note of his negotiations to ease the discomfort of entering the cool room”.

Dr Ditton, consultant in pain management, saw Mr Alexakis on 23 April 2002 after a referral from Dr Tadros. On examination Dr Ditton noted that there was significant avoidance behaviour though Mr Alexakis had a full range of movement of the neck and left shoulder with no evidence of radiculopathy in the upper limbs. There was a tender point in the suprascapular region which may have related to a focal muscle tear. The doctor suggested injecting some local anaesthetic but Mr Alexakis “would not accept any interventions”. The doctor concluded his report saying “I have tried to reassure [Mr Alexakis] of the benign nature of his problem and suggested that he should gradually increase his work capacity”. Dr Ditton had no history of back or right shoulder problems.

Mr Alexakis’ statement of 20 January 2004 also includes several comments about Rosemarie Dravnieks, a rehabilitation consultant. He says at page five of his first statement: “I asked her for justice and I received unprofessional service, mockery, lies, ingratitude, and she did all this for one reason only, her own interests, and her obligation to the insurance since she was getting paid by it”. The specific complaint against Ms Dravnieks is that she would make appointments for him and book an interpreter without first consulting him. It is also alleged that the company wouldn’t respect the doctors’ reports with regard to Mr Alexakis’ work restrictions.

Mr Alexakis states that the functional assessment report from Ms Dravnieks was “based on lies and her unprofessionalism [sic], since its content is [sic] false, and she would create, repeatedly, problems for me during the examination” (the first statement, pages five and six). No functional assessment report was tendered in evidence and it is impossible to assess the validity of this allegation. In any event, I do not accept that these allegations provide any basis for a finding of a psychological injury due to “nature and conditions”.

Mr Alexakis refers in his statement to the company starting a “war against me from the offices with unwavering protagonists, Mrs Carol Rogan (health and safety company co-ordinator) and Mrs Helen Malcolm-Smith H/R/M [sic]” (the first statement, page seven). Again such generalised attacks provide no basis for a psychological injury alleged to have been caused or arising out of Mr Alexakis’ employment.

However, evidence of tension between Mrs Malcolm-Smith and Mr Alexakis is apparent from correspondence which I will refer to shortly.

The next matter referred to in Mr Alexakis’ statement is the incident that occurred at work on 15 March 2002. This date is pleaded in the Application and is referred to in detail in the Arbitrator’s Reasons. The Appellant Worker states that on this day he purchased five small chocolates from a co-worker. At the end of his shift he went to the bathroom to wash his hands and then to change his clothes. He was spoken to by Jason Cachia, the pricing manager, who allegedly asked him “where are you taking those chocolates”. He was then asked to go to Mrs Malcolm-Smith’s office, which he did. She then asked him to attend the company kitchen to speak to the person from whom he’d purchased the chocolates (Germaine Selim). That was done. The woman concerned confirmed that she sold the chocolates to Mr Alexakis to raise money for her school. Mr Alexakis claims that he was humiliated in front of 60 co-workers and that the matter was handled unprofessionally and should have been dealt with in private.

A file note prepared by Mrs Malcolm-Smith on 15 March 2002 was in evidence before the Arbitrator. This note confirms that Mr Alexakis attended on Mrs Malcolm-Smith in the presence of Jason Cachia on the afternoon of 15 March 2002 because of concern about certain chocolates. At that meeting Mr Cachia told Mrs Malcolm-Smith that the chocolates did not look like products supplied by the Respondent Employer. She states that throughout the conversation Mr Alexakis appeared calm, relaxed and co-operative. She added that:

“At no time did I indicate to Theo that I believed he had done anything wrong or that he has stolen company property. I dealt with the matter quickly, privately, and with Theo’s co-operation.
I have addressed Germaine Selim and advised her of the company’s policy against solicitation, which prohibits the ‘unauthorised sale of tickets or products’ in the workplace. I have also discussed the implications regarding our HACCP/food safety system. I believe I brought both these points up with Theo as we were walking to the kitchen, but I did not imply that he had done anything wrong.”

The evidence from Mr O’Neill, clinical psychologist, in his report of 30 May 2002 records that he was informed that their “were approximately 50 people in the whole building, but that only 2 people were present when discussing the issues about the chocolate” (Mr O’Neill, report 30 May 2002, page seven). In the light of this note and the evidence of Mr Cachia and Mrs Malcolm-Smith, I do not accept Mr Alexakis’s evidence that he was insulted in front of 60 people. I do not believe the incident was of great significance.

On the evening of 15 March 2002 Mr Alexakis attended at Royal Prince Alfred Hospital complaining of an anxiety related headache and of having been accused of stealing. He also attended on Dr Tadros on 16 March 2002 complaining of anxiety.

At page eight of his first statement Mr Alexakis complains that following the incident on 15 March 2002 the:
“…war from the company was continuing, they would create situations and they would give me minimum [sic] time to reply in writing. So, I, although with pains on my back, neck, hands, although my head was hurting, I had to find the strength to take the pressure and reply because at the end, the written text is the evidence, and not the spoken word. As a result of this, I was feeling that my soul strength was giving in on me.”

Dr Tadros referred Mr Alexakis to Dr Takas, psychiatrist, in July 2002 because of agitation and depression. In consultation with Dr Takas on 11 July 2002 Mr Alexakis complained of:

· feelings of depression and anxiety;
· irritability;

· suffering from ‘nerves’;

· disturbed sleep; difficulty with concentration;

· ongoing physical problems in the form of pain affecting his left shoulder, as well as difficulty with the movement of his left upper limb;

· feelings of agitation whenever thinking of his ongoing problems at work;

· reduced appetite, with weight loss, and
· difficulty in experiencing pleasure in any daily activities.

The above problems were said to follow a progressively deteriorating course, “further aggravated by the ongoing work problems”. Dr Takas diagnosed Mr Alexakis as suffering from “acute stress disorder, triggered by his ongoing work-related problems”. The Arbitrator accepted this diagnosis and added at paragraph 17 of his Reasons that:

“It is significant that Dr Takas did not get a history of the later incidents at work and attributed all of the psychological condition to the earlier physical work injury.”

The Appellant Worker challenges this statement and submits that Dr Takas had a copy of a “Statement of Facts” which included all relevant information about the incidents at work. The evidence does not disclose exactly what information was before Dr Takas. The doctor’s report is dated 26 January 2004 and is addressed to Mr Alexakis’ former solicitors. Nevertheless, Dr Takas specifically refers to the injury in September 2001 when Mr Alexakis injured his left shoulder. He then adds that Mr Alexakis had difficulties with the suitable duties given to him and “he continued working, but his psychoemotional state deteriorated rapidly. His general practitioner referred him to see me in July 2002”. The doctor added:

“He has reported continuing to be under a lot of pressure at work and being the victim of intimidation and humiliation, as well as wrongful accusations.”

Under ‘opinion’ Dr Takas concluded:

“From the history obtained from Mr Alexakis, as well as various documentation presented to me, it appears that he had suffered ongoing problems at his workplace which resulted in physical and psychological injuries.
With regard to his physical injuries, these had been dealt with by the relevant orthopaedic specialist.
With regards to the psychological injuries, these had led to the development of, initially, an acute Stress Disorder which developed into a severe Adjustment Disorder with depressed mood.”

Mr Alexakis’ statement then refers to a medical certificate from Dr Takas certifying him unfit from “16/02/02 [sic] to 17/01/03” (first statement, page nine). In fact the certificate is a non WorkCover certificate from 16 December 2002 to 17 January 2003.

Mr Alexakis’ statement then refers to correspondence from the Respondent Employer dated 19 October 2001 and 6 November 2001. Mr Alexakis’ comment about the letters is that “their lies appear in their own letters” (first statement, page 10). The October 2001 letter was signed by Mrs Malcolm-Smith and reads:

“Dear Theo,

According to our records, you have not attended for work since 7 October 2001. Theo, we are concerned for your health and welfare and would like to know whether you are ill or whether or not you intend to work at Caterair Airport Services.

Would you please contact me on 9667 8034 or 0407 299 546 by 12:00 on Wednesday 24 October 2001 to notify me of your intentions. (NB Please ensure you speak to me directly or leave a voice mail clearly explaining your intentions.)

If you wish to resign, you need to notify the company in writing so that we might pay you any out standing entitlements. If we do not hear from you by 12:00 on Wednesday 24 October 2001, we will terminate your employment with the company based on abandonment of employment.”

Mr Alexakis says of this letter that “it blackmails me that if I don’t respond till [sic] the time I was given she will dismiss me”. As a result of the October 2001 letter a meeting was held on 6 November 2001 and the following letter was sent by Mrs Malcolm-Smith to Mr Alexakis on the same day:

“Dear Theo

I refer to my letter dated 19 October 2001 which was discussed at a meeting today with Carol Rogan, Occupational Health and Safety Coordinator, Anna Papaloizou, translator, and myself.

As discussed, the letter dated 19 October 2001 follows a standard used by the company when employees do not report for work and cannot be contacted.

We note your statement that you contacted the payroll office to advise them of your absence from work. In future, would you please ensure that you communicate with Carol Rogan on 9667 8030 in the first instance. Carol will then ensure the Payroll Officer, Sous Chefs and myself are advised of your situation as necessary. If Carol does not answer her telephone, please leave a message for her. If the matter is urgent and you cannot contact Carol, please telephone me on 9667 8034.

Theo, as discussed today, our primary focus is to support you to return to your full duties here at Caterair. If you have any questions about your rehabilitation, please do not hesitate to contact Carol Regan.”

On 11 February 2002 Mrs Malcolm-Smith wrote to Mr Alexakis to summarise a meeting held with him on 8 February 2002. Among other things, the letter confirmed that at the meeting the company’s ‘Work Rules Policy’ and ‘Code of Conduct’ were translated in full and that the company’s ‘Discipline Policy’ was referred to, “including the progressive warning system”. It was noted that there had been a number of complaints about Mr Alexakis’ behaviour, including an incident where he raised his voice and used foul and abusive language when speaking to the payroll officer. In another incident it was alleged that Mr Alexakis failed to follow lawful directions given to him by a supervisor.

On 11 June 2002 Mrs Malcolm-Smith wrote to Mr Alexakis concerning a complaint she had received from Carol Regan regarding several issues that occurred in the week starting 3 June 2002. Four specific matters were raised: first, that he had failed to contact the company to report in ill on 4 or 5 June 2002, second, that he shouted at Carol Rogan and Rosemarie Dravnieks at a meeting on 6 June 2002, third, that he had left work early on 7 June 2002 in breach of company rules and fourth, that he had completed the authorisation log and recorded his finishing time as 4.00pm on 7 June 2002 when he had in fact finished work earlier than that time. Mr Alexakis was requested to reply in writing by 19 June 2002. That time was later extended and Mr Alexakis replied by letter dated 22 June 2002.

In his letter of 22 June 2002 Mr Alexakis categorically denied shouting at the meeting of 6 June 2002 and denied that he left the meeting in a hostile manner. The letter also said that:

“As the meeting progressed, I realised it was ‘getting nowhere’ and worse, it was adversely affecting my health. I felt that both Carol and Rosemarie with joined forces were conducting a psychological war against me. I sensed a hostile attitude towards me from both Carol and Rosemarie. In my opinion I was not treated with appropriate respect and understanding and given my psychological status at that time, as a result of this, I felt it was necessary for me to immediately exit myself from the meeting. Shortly after, I composed myself, I felt a little better, I returned to my post and just managed to complete my work for that day. Despite all, I did not think it would be appropriate to take this matter further. However, I was rather surprised that Carol and Rosemarie did so themselves.”

In respect of the allegation that he left work early on 7 June 2002 the Appellant Worker wrote in his letter of 22 June 2002 that he believed he left work at the correct time (4.00pm) but:

“In hindsight, it appears that I left work at exactly 3.00pm (i.e. 1 hour earlier). Should this be the case I sincerely state that this was an ‘innocent’ and unintentional human mistake on my behalf. I looked at my watch and honestly believed that it showed 4.00pm. Consequently at the time of signing the authorisation log, I was of the impression that the time was 4.00pm. I had no reason to leave from work [sic] early.”

Carol Rogan provided a statement dated 21 June 2004 which was tendered in evidence. In it she said that she went to find Mr Alexakis at 3.30pm on 7 June 2002 but found that he had already left the premises and had “booked off duty” signing that he had finished work at 4.00pm. She said that when he was spoken to about this matter he “offered the excuse that he had misread the clock by thirty minutes”.

In respect of the allegation that he had failed to contact the company to report that he would not be in on 4 and 5 June 2002, Mr Alexakis said that he had contacted Carol Rogan on 3 June 2002 and reported ill on that day and said that if he felt better on 4 June 2002 he would attend work. He agreed that he did not call again on 4 June. In respect of 5 June Mr Alexakis said that he had an appointment with his psychologist and that Carol Rogan should have been aware of that fact. Therefore, he did not consider it necessary to phone in on 5 June.

After considering Mr Alexakis’ letter of 22 June 2002 and making further enquires, Mrs Malcolm-Smith responded in writing on 27 June 2002. In summary the response was:

1.the phone call from Mr Alexakis on 3 June 2002 was vague and did not provide a clear indication (as is required in the ‘employee handbook’) of when Mr Alexakis would be returning to work;

2.Mr Alexakis’ conduct at the meeting was ‘cross checked’ and “the evidence is clear that you did shout as alleged which is a breach of company policy” and, as such, the letter of 27 June 2002 served as “a written warning and the first stage of the disciplinary process. Any further instances of disorderly conduct or shouting in the workplace may result in further disciplinary action, including termination of employment”;

3.it was clear that Mr Alexakis was not at his work station as he should have been on the afternoon of 7 June 2002 and failure to seek approval to leave the work area before the end of the work day may result in disciplinary action, and

4.in respect of the allegation of falsely reporting time worked, it was not possible to prove the exact sequence of events on 7 June 2002 but Mr Alexakis was overpaid by 30 minutes for that day.

Other than referring to his letter of 22 June 2002, Mr Alexakis’ statements do not deal in any way with the events of 6 June 2002.

His first statement does refer to a “problem with another worker” at work on 18 October 2002. This incident became know as the ‘Marikone’ incident and is dealt with by Mr Alexakis in a memo he wrote to Carol Rogan on 22 October 2002. On 18 October 2002 Mr Alexakis was wrapping sandwiches when a co-worker (Islam) said “you are too slow”. Later Mr Alexakis was waiting for a third worker to finish a task so he (Mr Alexakis) could continue his job when Islam yelled out “Marikone, why are you wasting your time, go back to your job”. The word ‘Marikone’ is said to mean ‘wanker’ in English. Mr Alexakis was offended and angered by this comment. His memo of 22 October 2002 also states:

“At this point, I feel it is my duty to report to you (rather to remind you) that since my injury at work (11/09/01) and in conjunction with the incidents of 15/03/02 and 13/06/02 at work, where I sustained psychological injuries, I have been suffering bodily pain and have been in bad psychological status. Undoubtedly, such incidents as the above mentioned, only contribute adversely towards deterioration of my health.

At this stage I do not seek my colleague to be punished. However, I would urge you that he is cautioned and [sic] to avoid similar incidents in the future.”

As a result of this incident Mr Velupillai wrote to Mr Alexakis on 21 October 2002 providing him with a second warning that use of foul and abusive language is prohibited. The Marikone incident does not appear to have been investigated despite a memo being sent by Mr Alexakis to Mrs Malcolm-Smith on 18 November 2002 setting out certain questions.

In his first statement Mr Alexakis says that the “bosses” must take a share of the responsibility for the Marikone incident because they did not explain to co-workers that he was on a return to work program. As a result there was a degree of resentment towards Mr Alexakis from co-workers. He adds that Mrs Malcolm-Smith was the person “behind” the letter from Mr Velupillai’s of 21 October 2002 and that “it was her own usual blackmailing way of communicating” (the first statement, page 11). He states that he spoke to Mr Velupillai and was told that Mrs Malcolm-Smith wrote the letter of 21 October 2002 and “she made him [Mr Velupillai] sign it”. This allegation is difficult to accept as the letter starts “I refer to the incident I witnessed in the food production area on Friday 18 October 2002” (emphasis added).

Mr Alexakis’ second statement sets out his difficulties with his previous legal advisers and the circumstances leading up to the adjournment of his case in the Compensation Court of NSW on 11 December 2003. It adds nothing of relevance to the evidence on the question of injury or to the matters raised on appeal.

Mr Alexakis stopped work on 15 December 2002 after producing a non WorkCover medical certificate from Dr Takas declaring him unfit from 16 December 2002 to 17 January 2003 because of an “episode of severe depression”. Mr Alexakis also produced a certificate from Dr Tadros dated 17 January 2003 declaring him fit for suitable duties from 18 January 2003. There was meeting between Mr Alexakis and Carol Rogan on 17 or 18 January 2003 at which it is alleged Mr Alexakis pushed over a chair and yelled at her in a loud voice.

By letter dated 20 January 2003 from Carol Rogan the Appellant Worker was advised that he would not be permitted to return to work until a certificate or report was obtained from Dr Takas stating that he was able to resume duties. Mr Alexakis responded by typed note the same day alleging, among other things, that Carol Rogan had “wilfully denied me opportunities in the workplace as well as monies owed to me”. There then followed a series of letters between the Respondent Employer and Mr Alexakis concerning the chair incident and perceived problems with Carol Rogan. The content of these letters does not have to be considered in detail as they relate to a period after the “nature and conditions” claim ends on 15 December 2002.

As no clearance to return to work had been received from Dr Takas in respect of Mr Alexakis’ psychological condition and as there had been no sustained improvement in his left shoulder/neck condition, the Appellant Worker was asked in a letter dated 8 May 2003 to put forward reasons why his employment should not be terminated. As it was unlikely that Mr Alexakis would be able to return to his full pre-injury duties his employment was terminated effective 30 May 2003.

Additional Medical Evidence

Physical Injury

Dr Tadros reported on Mr Alexakis’ condition on 21 September 2002. This report sets out a history of the chocolate incident of March 2002 and incorrectly notes that one of the Respondent Employer’s administrative employees “told the manager that Mr Alexakis took or ‘stole’ the chocolates from the kitchen” (report Dr Tadros, 21 September 2002, page one). It records that Mr Alexakis was very upset as he had to stand “among about sixty kitchen workers being accused of stealing”. I do not accept that this is an accurate description of the events that took place on 15 March 2002.

Under ‘past history’ the doctor recorded:

“A neck and left shoulder injury on 11/09/2001 when a box of bottled water about fifteen kilograms in weight fell on his shoulder. He had appropriate treatment and continued to work doing selected duties since then. There was no other relevant past history.”

At the examination on 16 March 2002 Dr Tadros thought Mr Alexakis looked distressed, anxious and depressed. The doctor felt that Mr Alexakis gave an “honest and accurate account of what happened to him at work” (report 21 September 2002, page two). Dr Tadros felt that Mr Alexakis was suffering from “an anxiety depressive reaction which is causally related to the incident on 15/03/2002 in the way described above” (emphasis added) (report 21 September 2002, page three).

On 5 June 2002 Mr Alexakis saw Lynne Bousfield, clinical psychologist, on referral from Dr Ditton who reported on 12 June 2002. She took a history of the 11 September 2001 incident and of the 15 March 2002 chocolate incident. In respect of the latter she recorded:

“He said he had been unjustly accused of theft of company property on this day. When the employer investigated the accusation in a manner that Mr Alexakis believed further humiliated him it was discovered that there was no evidence to support the accusation. Despite receiving an apology from the employer, Mr Alexakis remains considerably distressed by both the accusation and the way the matter was handled. He believed he was being judged because of his honesty and outspokenness about matters in the workplace in the past and now because he was on workers compensation he considered the employer wanted to get rid of him.”

Ms Bousfield also took a history of Mr Alexakis experiencing pain in both shoulders, neck, head and his upper back. The pain in the shoulders corresponded to how much weight he lifted. Mr Alexakis told Ms Bousfield that he worried about “not meeting his commitments in Greece, given that this time he has been in Australia much longer than usual because of his injury” (report 12 June 2002, page three).

Under ‘conclusions and recommendation’ Ms Bousfield said:

“Mr Alexakis gave me the impression of being someone who is quite precise and who provides considerable detail about his condition and the factors that he believes have contributed to his condition. He believes those treating him require this degree of detail to understand his situation. He is likely to feel somewhat slighted if unable to provide this information….He perceives himself to be extremely honest, meticulous and scrupulous. Given these aspects of his personality style, his approach to his situation may test the patience of those involved with him. Furthermore, despite some grasp of English he is not fluent, and any difficulty he has understanding what is required of him is only likely to add to his stress, influence his own communication and behaviour and lead to further misunderstanding. Nevertheless, these factors aside, Mr Alexakis did not report problems too different from many individuals with pain problems caught up with industrial issues and the workers compensation process. These issues in combination with his personality style and language limitations have probably limited his capacity to cope with the stress associated with changes to his duties as a result of his injury. As well as these issues and what now appears to be the development of a stand off in the workplace, his conviction that someone will be able to cure him will also limit any intervention for pain management at this point. In my opinion the best that can be offered to him is some stress reduction strategies, rather than strategies aimed at improved functioning physically in association with his pain.
…While I did not diagnose depression at assessment it is likely that it will develop without some resolution of his concerns.” (emphasis added)

In a report dated 12 March 2003 addressed to Mr Alexakis’ former solicitors, Dr Tadros recorded that when he first saw Mr Alexakis on 1 February 2002 he complained of pain in both shoulders (the left being worse than the right), neck pain and pain in the interscapular region. Entering the cool room and exposure to air conditioning particularly exacerbated his pain. The doctor’s opinion was that Mr Alexakis had sustained the following injuries “causally related to the accident on 11/09/2001” (emphasis added) (report 12 March 2003, pages three and four):

1.musculo ligamentous sprains of the cervical spine with possible implication of the disc;

2.musculo ligamantous sprains of the dorsal spine, and

3.shoulder pain due to muscular sprains with the development of tendonitis or referred from the neck.

Significantly, Dr Tadros makes no diagnosis of injury as a result of the “nature and conditions” of employment.

In his report of 29 May 2003 Dr Tadros gave certain assessments for permanent impairment of Mr Alexakis’ neck and back “as a result of the accident on 11/09/2001” (report 29 May 2003, page two).

In his report of 13 October 2003 Dr Tadros noted Mr Alexakis’ complaints of continuing shoulder, neck and back pain and stated that his opinion was the same as expressed in his reports of 12 March and 29 May 2003. In his October 2003 report he added that Mr Alexakis’ had a loss of efficient use of his left arm at or above the elbow of 20% and of the right arm at or above the elbow of 10%.

Dr Patrick examined Mr Alexakis on two occasions at the request of his former solicitors and prepared three reports, two dated 4 June 2002 and one dated 3 September 2003. In his June 2002 reports he noted that after his September 2001 injury Mr Alexakis return to work on light duties, but the work was not really light and he had difficulty with it. Dr Patrick recorded Mr Alexakis’ symptoms and restrictions as being:

· pain at the left side of the cervical spine postero-laterally;
· difficulty with heavy lifting, particularly with the left arm;

· pain in the upper-mid thoracic area, and

· restricted recreational activities.

On examination Mr Alexakis was noted to be unfit and deconditioned. Range of movement of both shoulders was found to be reasonably full. Under ‘opinion’ Dr Patrick concluded:

“Mr Alexakis, I believe, has sustained some left cervico-brachial strain injury and also upper-mid thoracic strain injury, probably musculoligamentous when lifting the carton of full water bottles at work on 11 September .” (emphasis added)

The doctor assessed Mr Alexakis to have an 8% permanent impairment of his neck and a 10% permanent impairment of his back but no loss of use of either arm.

In his report of 3 September 2003 Dr Patrick noted Mr Alexakis to have the following symptoms:

· posterior neck pain;
· numbness into the hands, left worse than right;

· lifting 3-4 kg often caused sharp pain in his back, mainly at the upper back and left lower thoracic region;

· discomfort at the ventral elbows at the cubital fossae, and

· discomfort at both shoulders, left worse than right.

Dr Patrick thought there was some degree of ongoing anxiety/depression.

An MRI scan taken of the cervical spine on 30 April 2003 showed some loss of disc height at the C4/5 and C5/6 levels. An MRI scan on the same date of the lumbar spine was normal.

Dr Patrick’s opinion was not significantly altered as a result of his second examination. He confirmed that the impairments found had resulted from the work injury on 11 September 2001.

Mr Alexakis saw Dr Grahame Mahony on 16 April and 21 May 2003 after being referred by Dr Tadros. In his report of 4 June 2003 Dr Mahony records the incident of 11 September 2001 when Mr Alexakis felt a cracking of the left shoulder. He also noted the following under ‘past health’:

“Several months prior to this incident [September 2001], he was lifting boxes at work weighing up to 50 kgs as apparently there were not enough trolleys. He sustained injuries to his neck, shoulders and back.”

Mr Alexakis complained to Dr Mahony of pain in his neck radiating into the occipital area and into the shoulders and hands, pain in the left shoulder, mid back and low back. In the doctor’s opinion Mr Alexakis had symptoms referable to a cervical strain with nerve root irritation affecting the upper limbs together with capsulitis of the left shoulder and a thoraco lumbar strain. On the issue of causation, Dr Mahony stated:

“It is consistent that the lifting [of] boxes at work weighing up to 50kgs has produced injuries to his neck, shoulders and back and a subsequent incident on 11 September 2001 producing added symptoms to his left shoulder.”

Mr Alexakis saw Dr David Champion on referral from Dr Tadros on 6 February 2004. In his report dated 22 March 2004, the doctor recorded that as a result of his repetitive duties Mr Alexakis experienced fatigue in his shoulders within one or two weeks of starting work for the Respondent Employer in May 2001. The incident of September 2001 causing a ‘crack’ in the left shoulder is also recorded. However, the doctor also noted that Mr Alexakis worked until 12 October 2001 and that by then there was a lot of pain in the “neck, upper and mid back, posterior shoulders and arms” (report 22 March 2004, page two). This history is demonstrably false. He also noted that the light duties certificates were “not respected”.

Dr Champion’s diagnosis was that as a result of work related mechanical stresses Mr Alexakis sustained cervical pain syndrome, upper thoracic spinal pain syndrome and painful inhibition of shoulder abduction bilaterally. The doctor’s opinion on causation is a little difficult to follow. He states:

“He [Mr Alexakis] was performing work at Caterair which clearly put him at risk of a neck and upper limb chronic pain disorder and there were some symptoms along those lines prior to the incident on 11.9.01. However the incident as described was the precipitating event that led him to seek medical attention and was the commencement of significant and sustained work-related handicap, periods of [sic] work leading ultimately to his total discontinuation from work.”

Dr Champion felt that there had been important psychosocial consequences as a result of his injury, especially initial distress followed by adjustment disorder with significant depression.

Psychological Injury

Dr Takas is the only psychiatrist or psychologist relied on by the Appellant Worker.

For the Respondent Employer Mr Alexakis saw Mr O’Neill, clinical psychologist, on 30 May 2002. In his report he records details of a telephone conversation he had with Carol Rogan about the chocolate incident. She informed him that it was company policy, for quarantine reasons, “that people could no [sic] carry food or eat food in the factory and staff could only eat food in the kitchens” and Mr Alexakis was aware of these rules. She also stated that Mr Alexakis was never accused of stealing the chocolates but was simply asked where he got them and about his understanding about the quarantine regulations. She added that only two people were present when the issues were discussed with Mr Alexakis.

On testing, Mr Alexakis had an extremely severe elevation on the “Obsessive Compulsive Sub-scale of Anxiety Related Disorders measures” (report 30 May 2002, page five). This indicated that he was an “extremely obsessive and rigid person, who tends to ruminate about issues including perfection, and who experiences difficulties putting issues into perspective in a stressful situation”. Mr O’Neil thought this reflected Mr Alexakis’ general personality and not something he developed as a result of specific recent experiences.

Mr O’Neill concluded at page eight of his report, that:

“…Mr Alexakis has an Obsessive Compulsive Personality Disorder, tends to ruminate about insignificant issues and deals very poorly with any confrontation on [sic] life situations that involve stress….
There is no doubt that Mr Alexakis developed an acute anxiety reaction after the chocolate event on the 15 March 2002. However, I would not classify this as a psychiatric diagnosis per se but more a reflection of his personal response style and personality disorder. I consider that the workplace dealt with the circumstance rationally and in a fair way and took reasonable action to ensure the issues involved were addressed and apologies were given once the issues were clarified.
Mr Alexakis’ psychological reactions are predominantly a reflection of his personality and considering that his employer acted reasonably in this situation, I do not believe that his claim is compensable under the NSW Workers Compensation System.”

The Respondent Employer also relies on a report from Dr Akkerman, psychiatrist, dated 30 March 2004. He thought that Mr Alexakis exaggerated his symptoms. He concluded that the Appellant Worker suffers from a mild Adjustment Disorder secondary to his neck injury. He noted that Mr Alexakis agreed with that conclusion (report 30 March 2004, pages three and six).

ARBITRATOR’S DECISION

Whilst the Arbitrator’s first Certificate of Determination date 4 May 2006 was revoked by the Certificate of Determination issued on 27 July 2006, his Reasons and findings given on 4 May 2006 remain valid and are to be read with the Reasons given on 27 July 2006 after the determination of the Respondent Employer’s reconsideration application. No appeal has been filed against the Arbitrator’s reasons given on 27 July 2006.

In a detailed and carefully prepared decision the Arbitrator reviewed the relevant evidence and concluded at paragraph 23:

“Considering all of the medical evidence it seems to be common ground that the Applicant suffered injury to his neck on 1 September 2001 [sic]. There is no evidence of underlying pathological change as a result of the incident. The doctors agree that the injury is a musculo ligamentous strain. The Applicant has complained of pain and restriction since that time. The extent of the pain is disproportionate to the injury suffered but there is no evidence that he is not suffering from the pain that he complains of. There is no evidence that leads to the conclusion that he no longer suffers pain. At most the doctors retained by the Respondent consider the Applicant fit for work because of the absence of objective signs of continuing restriction. Dr Takas diagnosed a stress disorder secondary to the injury. When that diagnosis is considered with the views of Drs Akkerman and Morris the picture becomes clear. In my view the Applicant is continuing to experience the level of pain that he does because of the psychiatric condition that is secondary to the primary physical injury to the neck.”

In respect of the alleged psychiatric injury the Arbitrator assessed this part of the claim under the heading “PSYCHIATRIC INJURY ON 15 MARCH AND 13 JUNE 2002” on page seven of his 4 May 2006 decision. Whilst the June 2002 event was alleged to have occurred on 13 June 2002 the Arbitrator in his Reasons accepted that the relevant date was 7 June 2002 when the Appellant Worker was alleged to have left work early.

The Arbitrator’s conclusion on the issues he considered is set out at paragraph 28 of his Reasons. After referring to the medical evidence the Arbitrator stated:

“Mr O’Neill accepted that the Applicant developed an acute anxiety reaction after the episode of 15 March 2002 but did not consider that it was a psychiatric diagnosis per se. I agree with that conclusion. In my view the reaction of the Applicant to the incident of 15 March 2002 and the incident of 13 June 2002 was not an injury but was a reaction due to his personality and the acute stress disorder caused by his physical injuries.”

In summary the Arbitrator found:

· On 11 September 2001 Mr Alexakis received an injury to his neck and left arm arising out of or in the course of his employment with the Respondent Employer;
· Mr Alexakis did not receive a psychological injury arising out of or in the course of his employment with the Respondent Employer;

· Mr Alexakis’ employment was a substantial contributing factor to his neck and left arm injury, and

· Mr Alexakis was partially incapacitated for work as a result of his injuries from 27 July 2002.

Other findings were made in respect of earnings that are not challenged on appeal.

REVIEW

The nature of a review has been considered by the Commission in many cases. In Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15 it was held:

“39. A Presidential Member on appeal has a specific and limited role in the review of the decision of an Arbitrator. The review is not a rehearing, nor is the Presidential Member dealing with the matter de novo, nor is he or she arriving at a fresh decision based upon all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”

The question of the weight to be attached to an Arbitrator’s decision relating to discretionary matters has also considered and determined. In Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSW WCC PD 73 Fleming DP held:

“Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully.”

It was also noted in Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 that:

“As stated in South Western Sydney Area Health Service v Edmonds [2005] WCCPD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCFA 206 at [21]). (per Byron DP at [54])”

SUBMISSIONS AND FINDINGS

Injury – Back and Right Arm

The Appellant Worker submits that the Arbitrator made no findings in respect of the claim for the back and right arm. The Respondent Employer submits that the findings made by the Arbitrator clearly exclude any entitlement in respect of the back and right arm. An Arbitrator has an obligation to provide reasons for his or her decision (Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSWWCCPD 1). Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’) requires Arbitrators to give a brief statement setting out the reasons for the determination, including:

“(1). . .
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning process that lead the Commission to the conclusions it made.

(2) Without limiting subrule(1), the reasons set out in a statement referred to in subrule(1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”

The Arbitrator has not given any reasons in respect of the Appellant Worker’s claim that he injured his back and right arm either on 11 September 2001 or as a result of the nature and conditions of his employment. As each party has made detailed submissions on this issue on appeal it is appropriate that it be redetermined by me on review.

There is no persuasive evidence that Mr Alexakis injured his back or right arm on 11 September 2001. The first complaint of back pain was not until late 2001 or January 2002. The report of Dr Cohen of 28 February 2002 makes it clear that Mr Alexakis was complaining of “sensitivity of his upper back to air conditioning”. Dr Cohen’s opinion was that the Appellant Worker’s problems with his back were “fundamentally benign”. I accept that opinion. The MRI scan of the lumbar spine dated 30 April 2003 was normal. There are no investigations that support a finding of injury to the right arm or shoulder.

Dr Tadros (12 March 2003) and Dr Patrick (4 June 2002 and 3 September 2003) have histories of injury as a result of the lifting incident on 11 September 2001 and but make no mention of “nature and conditions”. Dr Champion and Dr Mahony have quite different histories. I have found Dr Champion’s opinion unhelpful. On the one hand he talks about the incident of 11 September 2001 as being “the precipitating even” that led Mr Alexakis to seek treatment. On the other he talks about “work related mechanical stresses” but he does not identify those stresses. His diagnosis of “thoracic spinal pain syndrome” is not supported by any other doctor in the case and the cause of the condition remains unclear. His diagnosis for the shoulders of “regional pain disorders” is equally unsupported by any other doctor or by radiological investigations. For these reasons I do not accept Dr Champion’s conclusions with respect to the Appellant Worker’s back and right shoulder.

Dr Mahony’s opinion is based on the history that Mr Alexakis sustained injury as a result of lifting boxes “several months prior to” 11 September 2001 (see paragraph [89] above). That history is incorrect. The clinical notes from Dr Hasnani note that Mr Alexakis attended on 8 August 2001 complaining of pain in the lower back. On examination flexion was full, rotation was not painful and lateral bending was normal. The doctor’s impression was that Mr Alexakis had “muscular pain” and nurofen was recommended. The doctor took no history of any work injury or any activity at work that may have caused the pain. When Mr Alexakis attended on Dr Hasnani on 12 September 2001 he complained of pain in his left shoulder that started on 11 September 2001. Whilst there was a history of “repetitive arm movements”, there was no history of back pain or right arm pain caused as a result of the nature and conditions of employment. Therefore, I do no accept Dr Mahony’s opinion that Mr Alexakis suffered injury to his back or right arm as a result of the work he performed for the Respondent Employer up to September 2001. Dr Mahony took no history of injury as a result of the nature and conditions of employment after 11 September 2001.

I am fortified in this conclusion by the fact that Mr Alexakis performed light duties after his September 2001 injury. I understand that he complains that the Respondent Employer did not always comply with the light duties restrictions. However, the medical evidence does not satisfy me that Mr Alexakis sustained an injury to his back or right arm or shoulder as a result of the performance of those duties.

For these reasons, I find that the Appellant Worker has not sustained any injury to his back or his right arm or shoulder caused by or arising out of his employment with the Respondent Employer either as a result of the incident on 11 September 2001 or as a result of the nature and conditions of employment.

Therefore, whilst the Arbitrator was in error in failing to make a finding in respect of the alleged injury to the back and right arm or shoulder, that error makes no difference to the end result.

Referral to AMS

For the reasons given above the Arbitrator was correct in not referring assessment of the back and right arm at or above the elbow to an AMS because there is no injury to be assessed. The determination of injury is a matter for the Commission and is a threshold question that must be decided before any issue of permanent impairment or loss of use is considered by an AMS.

Psychological Injury

The Appellant Worker challenges the Arbitrator’s finding that he did not suffer a psychological injury as a result of the events at work on 15 March 2002 and or 7 June 2002. As noted above the Appellant Worker argues on appeal that it was not just the events on those two dates that were relevant to whether Mr Alexakis suffered a psychological injury but all the events that occurred at work up to 15 December 2002. The Respondent Employer objects to this approach being taken on appeal because it is contrary to the way the case was presented at Arbitration. In the absence of a complete transcript of the Arbitration proceedings and in the interests of procedural fairness, I allowed the Appellant Worker to make detailed submissions in respect of any psychological injury alleged to result from “nature and conditions” up to 15 December 2002 and I intend to assess that part of the claim on review.

The Appellant Worker argues that he is a person of good character who takes great pride in his honesty and integrity. In these circumstances the events of 15 March 2002 had a great impact on him and made him feel humiliated. I accept Mr Alexakis is a man who takes great pride in his integrity but that does not determine whether he has sustained a compensable psychological injury under the relevant legislation.

It is argued that the Arbitrator was wrong to conclude that Dr Takas did not have a history of the chocolate incident because the doctor had a copy of Mr Alexakis’ ‘Statement of Facts’. As I have noted above it is not clear what statement was given to the doctor. In any event, the Appellant Worker’s recounting of the chocolate incident in his first statement is at odds with the account given by Jason Cachia and Mrs Malcolm-Smith. As the account from Mrs Malcolm-Smith is recorded in a near contemporaneous memo (see paragraph [46] above) and Mr Cachia has no particular interest in the outcome of the case, I prefer their version of events to Mr Alexakis’ version. I do not accept that Mr Alexakis was accused of stealing as he alleges. I do not accept that he was humiliated in front of 60 people. The incident was a minor one that involved a breach of the company’s rules that was resolved within minutes. Neither Mrs Malcolm-Smith nor Mr Cachia noticed anything untoward about Mr Alexakis at the time of the incident. Therefore, if Dr Takas did take into account the version of events set out in Mr Alexakis’ first statement, he based his conclusion on an incorrect history and the weight to be attached to his opinion is significantly reduced as a result (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705).

It is submitted that several events occurred in June 2002, not merely the events of 7 June 2002. It was strongly pressed before me that the Appellant Worker suffered psychological injury as a result of the discussions he had with Carol Rogan and Ms Dravnieks on 6 June 2002. This discussion took on great importance during the appeal but it is not referred to in any detail in either of Mr Alexakis’ statements and is not referred to by Dr Takas or Dr Tadros. The Appellant Worker’s behaviour at the meeting on 6 June 2002 was one of the matters raised in the Respondent Employer’s letter of 11 June 2002. After considering Mr Alexakis’ detailed response to that letter and after making further enquires, Mrs Malcolm-Smith concluded that Mr Alexakis had shouted at that meeting and he was given a warning about his behaviour. I accept this evidence and I reject the Appellant Worker’s version on the events on 6 June 2002. I reject his claim that he suffered a psychological injury as a result of the meeting on 6 June 2002.

The other events in June 2002 related to Mr Alexakis’ conduct and his failure to follow correct company procedures with regard to telephoning when sick and leaving work early. I see nothing about the Respondent Employer’s conduct that could be said to have caused or contributed to Mr Alexakis suffering a psychological injury.

The other incident on which the Appellant Worker places great importance as being causative of a psychological injury is the Marikone incident referred to above at paragraphs [65] to [67] inclusive. Whilst I accept that there may have been tensions in the work place as a result of the Appellant Worker being on light duties, I do not accept that this incident caused him any psychological injury. The letter from Mr Velupillai makes it clear that foul language was used by Mr Alexakis. Whether Mr Alexakis was provoked is unclear. The allegation that Mrs Malcolm-Smith wrote the letter and made Mr Velupillai sign it is does not detract from its contents as Mr Velupillai was recounting the events he observed. If it is suggested that Mr Velupillai made up the content and substance of the letter, I reject that suggestion.

The Appellant Worker submits that Dr Takas “clearly indicates that the psychological/psychiatric condition is directly related to the ‘different incidents’ that had occurred at his workplace” (Appellant Worker’s submissions, paragraph 2.9 page 11) and that it is the culmination of these incidents that has led to Mr Alexakis’ current psychological state. I do not accept that submission.

Dr Takas’ opinion is based on the following history (page three):

“He [Mr Alexakis] reported continuing to be under a lot of pressure at work and being the victim of intimidation and humiliation, as well as wrongful accusations. I understand that this continued until 15 May 2003 in different shapes and forms.”

The above history is incorrect and significantly reduces the weight to be attached to Dr Takas’ conclusion. In the absence of a proper history it was open the Arbitrator to conclude that Dr Takas attributed “all of the psychological condition to the earlier physical work injury” (Reasons, paragraph 17). The doctor diagnosed Mr Alexakis to be suffering from “Acute Stress Disorder, triggered by his ongoing work-related problems”. Exactly which problems the doctor was referring to are not identified but it is clear that ongoing physical problems were a very significant factor.

In any event, it was open to the Arbitrator to accept the evidence on Mr O’Neil and Dr Akkerman which he did at paragraphs 23 and 28 of his Reasons. That evidence has been set out above at paragraphs [97] and [98]. In addition, that evidence is consistent with the evidence of Ms Bousfield I highlighted at paragraph [77] above which emphasises certain aspects of Mr Alexakis’ personality style. I agree with the Arbitrator’s conclusion that Mr Alexakis did not suffer any psychological injury as a result of the events at work on 15 March 2002 and or on 7 June 2002. His conclusion discloses no error of fact, law or discretion. I agree with and confirm the Arbitrator’s finding that the Appellant Worker suffers from an acute stress disorder caused by his physical injuries.

In respect of the other work incidents relied on by the Appellant Worker on appeal, I do not accept that those events, either individually or cumulatively, have caused Mr Alexakis to suffer any psychological injury separate and distinct from the secondary psychological injury found by the Arbitrator to have resulted from the physical injuries found. In this regard I accept the conclusions of Mr O’Neil and Dr Akkerman and, because of his inaccurate and incomplete history, I reject the opinion of Dr Takas so far as it seeks to sustain a primary psychological injury. I find, contrary to the history recorded by Dr Takas, that Mr Alexakis was not the victim of intimidation, humiliation or wrongful accusations at work but that his reaction to the events at work was a result of his stress disorder (caused by his physical injuries) and his personality traits as detailed by Mr O’Neil, Dr Akkerman and Ms Bousfield.

Section 11A

If I am wrong in my analysis of the medical evidence it is appropriate for me to consider section 11A of the 1987 Act. That section provides in subsection (1):

“11A No compensation for psychological injury caused by reasonable actions of employer

(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

The meaning of this subsection has recently been considered by the Court of Appeal in Department of Education and Training v Sinclair [2005] NSWCA 465 (‘Sinclair’) where the Chief Justice held at [35] that:

“The formulation in s11A extends to the entire process involved in, relevantly, ‘discipline’ including the course of an investigation.”

In the present case, I find that the steps taken by Mr Cachia and Mrs Malcolm-Smith on 15 March 2002 were part of an investigation process to determine if there had been any improper conduct by the Appellant Worker. In light of the company policy that people were not permitted to carry or eat food in the factory (see Mr O’Neill’s evidence at paragraph [95] and Mrs Malcolm-Smith evidence at paragraph [46]) it was reasonable for Mr Cachia to stop Mr Alexakis and speak to him about the chocolates. What followed was also reasonable and appropriate. Mrs Malcolm-Smith confirmed, virtually immediately, that the chocolates were not company property (and, therefore, had not been stolen) and then spoke to Germaine Selim in the presence of Mr Alexakis. That conversation would have taken no more than a few seconds. That was the end of the matter. In my opinion the actions taken by the Respondent Employer on 15 March 2002 were part of a reasonable investigation “with respect to” discipline and if the Appellant Worker has suffered a psychological injury as a result of that action he is not entitled to compensation.

In respect of the incidents that occurred in June 2002 I note that those incidents were all raised by Mrs Malcolm-Smith in the letter of 11 June 2002. I find nothing objectionable or unreasonable about the tone or content of that letter. It promptly raised issues that were of considerable importance to the efficient running of the company. Those issues related to matters set out in the company’s Employee Handbook. The Respondent Employer was entitled to raise those issues and it was fair that it sought Mr Alexakis’ comments before taking any action in respect of serious allegations. Mr Alexakis did respond on 22 June 2002 and his response prompted further investigations by Mrs Malcolm-Smith before she wrote on 27 June 2002 stating the Respondent Employer’s position and issuing Mr Alexakis with a warning about his behaviour on 6 June 2002. No action was taken in respect of the allegation that Mr Alexakis had falsified his time sheet.

In my opinion the steps taken by Mrs Malcolm-Smith were part of a reasonable investigation process that led to discipline in the form of a written warning.

On appeal Mr Alexakis argued that his psychological injury was sustained at the meeting on 6 June 2002 and, as the letter from the Respondent Employer was dated 11 June 2002, the psychological injury had already been sustained before any investigation or disciplinary action was started. I reject that argument and refer to my findings at [120] above.

As the Marikone incident was not fully investigated the evidence is insufficient to enable me to determine if the Respondent Employer acted reasonably in issuing the letter signed by Mr Velupillai on 21 October 2002. I do not believe that this incident has caused any psychological injury.

Looking at “the entirety of the conduct with respect to, relevantly, discipline” (Sinclair at [96]) I find that that conduct by the Respondent Employer was reasonable and, as a result, to the extent that the Appellant Worker has suffered a psychological injury wholly or predominantly caused by that conduct, no compensation is payable.

My finding in respect of section 11A does not alter the Arbitrator’s finding (set out and confirmed at [126] above) that Mr Alexakis does suffer from an acute stress disorder caused by his physical injuries. However, that disorder is a secondary psychiatric condition, not a primary psychiatric condition and he is therefore not entitled to receive lump sum compensation in respect of it (see section 65A of the 1987 Act).

Late Documents

It is argued that the Arbitrator was in error in refusing to admit into evidence the documents attached to two Applications to Admit Late Documents filed by the Appellant Worker. The first application is dated 20 February 2006 and the second 4 April 2006. The first application sought to tender several newspaper cuttings relating to the death of one of Caterair’s employees in December 2005. I have read the newspaper cuttings. There is nothing to be gained by me recounting the details surrounding that tragic incident. The events surrounding the death of that worker have no relevance whatsoever to the claim before the Commission. They do not relate to a work accident or injury. They do not relate to the circumstances in which Mr Alexakis was injured or to the conduct of which he complains after his physical injury. They happened three years after Mr Alexakis stopped work and do not advance his case or undermine the Respondent Employer’s case.

Also attached to the application dated 20 February 2006 were letters from the Appellant Worker’s former solicitors relating to notice given to seek to amend the Application to allege injury as a result of nature and conditions of employment up to 15 May 2003. The question of amending the Application was considered by the Arbitrator and his ruling was that the matter could only proceed on the basis of the Application filed on 27 April 2004 and if Mr Alexakis wanted to allege an injury after 15 December 2002 then it would be necessary to discontinue the current Application (Arbitration transcript, page four lines 24 to 57 inclusive). Mr Alexakis confirmed that he wished to proceed with the Application as originally pleaded (Arbitration transcript, page five line five). In these circumstances it is not open to argue on appeal that the Arbitrator was in error in not allowing an amendment to rely on nature and conditions beyond 15 December 2002.

The Application to Admit Late Documents dated 4 April 2006 attaches an internal email dated 30 July 2002 from Carol Rogan to Tanya Pejakovic relating to when Mr Alexakis received notice that liability for his claim had been declined. It has no relevance to any matter before the Arbitrator or on appeal. Whilst the Arbitrator did not rule on this document, his failure to do so is of no consequence and does not constitute an error. The other letters attached to the application of 4 April 2002 were already in evidence before the Arbitrator.

The Arbitrator’s rulings in respect of the Applications to Admit Late Documents disclose no error of fact, law or discretion.

Leave to admit fresh evidence on appeal is refused.

Ability to Earn

It is submitted that the Arbitrator erred in finding that the Appellant Worker had an ability to earn $450.00 per week in the period from 16 December 2002 to 30 May 2003 because in that period he was still employed by Caterair. It is correct that Mr Alexakis was still employed by Caterair in that period but that is not the relevant test. The question is: what was Mr Alexakis’ ability to earn in the labour market reasonably available to him? At that time he was found to be partially incapacitated for work as a result of his neck and left shoulder injury. The fact that his employment with Caterair had not been terminated did not prevent Mr Alexakis from exercising his capacity to earn on labour market available to him. I reject the Appellant Worker’s submission on this issue and confirm the Arbitrator’s finding in respect of Mr Alexakis’ ability to earn in the period 16 December 2002 to 30 May 2003.

DECISION

The Arbitrator’s decisions and rulings of 4 May and 27 July 2006 are confirmed.

COSTS

No order as to costs of the appeal.

Bill Roche
Acting Deputy President
18 October 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE