Anderson v Mercy Hospital Mount Lawley - [2018] WADC 74

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ANDERSON -v- MERCY HOSPITAL MOUNT LAWLEY [2018] WADC 74
CORAM:   JUDGE LONSDALE
HEARD:   20 DECEMBER 2017 & 18 JANUARY 2018
DELIVERED          :   1 JUNE 2018
FILE NO/S:   APP 63 of 2017
BETWEEN:   SHARON MARIE ANDERSON
Appellant
AND
MERCY HOSPITAL MOUNT LAWLEY
First Respondent
ST JOHN OF GOD HEALTH CARE INC.
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram:   ARBITRATOR SONTER
File Number             :   A38241 of 2017

Catchwords:

Workers' compensation - Appeal - Section 247 of the Workers' Compensation and Injury Management Act 1981 - Question of law - Whether arbitrator failed to properly determine that the appellant sustained an injury - Whether arbitrator erred by failing to determine the extent to which the appellant had contracted a disease - Credibility of appellant - Failure to provide adequate reasons - Conflicting expert evidence

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 5, s 5(a), s 5(c), s 5(d), s 5(5), s 18, s 188, s 213, s 213(4), s 247(1), Sch 1 cl 17, Sch 1 cl 19

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr M J Lourey
First Respondent	:	Ms M C Browne
Second Respondent	:	Mr R D McCabe

Solicitors:

Appellant	:	Chapmans Barristers & Solicitors
First Respondent	:	Jackson McDonald
Second Respondent	:	St John of God Health Care Inc.

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430

Beer v Duracraft Pty Ltd [2004] WASCA 192

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250

BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6

Catholic Education Office of WA v Granitto [2012] WASCA 266

Department of Education v Azmitia [2014] WADC 85

Department of Education v Azmitia [2015] WASCA 246

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273

Pacific Industrial Co v Jakovljevic [2008] WASCA 60

Peter Nardi v Department of Education and Training [2006] WACC C22-2006

Pilbara Iron Company (Services) Pty Ltd v Space Suleski [2017] WADC 114

Pollock v Wellington (1996) 15 WAR 1

Sotico Pty Ltd v Wilson [2007] WASCA 112

Summit Homes v Lucev (1996) 16 WAR 566

Vetter v Lake Macquarie City Council (2001) 202 CLR 439

Contents

Introduction

The facts

The appellant's position before the arbitrator

The second respondent's position before the arbitrator

The arbitrator's summary of the parties' respective positions

The arbitrator's findings

The grounds of appeal

The appeal must involve an error of law

Grounds 1 and 2

Legal principles governing the arbitrator's reasons

Ground 3

Ground 4

The requirement to give reasons

The arbitrator's reasons – analysis of adequacy of reasons

The appellant's denial of being angry with her employer

Discrepancies between the evidence of the appellant and Ms Sanasi

The appellant misled Dr Piirto

The appellant's evidence as to her reasons for taking sick leave

The appellant misled Dr Claassen and Dr Bassett

Grounds 5 and 6

Orders

JUDGE LONSDALE:

Introduction

This is an application for leave to appeal against the decision of Arbitrator Sonter of the Workers' Compensation and Arbitration Service on 30 June 2017 whereby the appellant's claim for workers' compensation was denied.
The appellant claims she developed Post‑Traumatic Stress Disorder (PTSD) and/or Major Depressive Disorder (MDD) as a consequence of an incident on Sunday, 4 May 2014 whilst she was working as a nurse in the Special Nursing Unit (SNU) at the Mercy Hospital in Mount Lawley (the hospital).
The hospital was under the control and ownership of the first respondent until midnight on 4 May 2014. Thereafter, ownership and control was transferred to the second respondent.
The appellant contends that her condition was an injury as defined in s 5 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) which relevantly provides as follows:
injury means -
…
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree;
…
(5)In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account -
(a)the duration of the employment; and
(b)the nature of, and particular tasks involved in, the employment; and
(c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and
(d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and
(e)matters affecting the worker's health generally; and
(f)activities of the worker not related to the employment.
'Disease' is defined by s 5(1) and includes any '… mental ailment, disorder … whether of sudden or gradual development'.

The facts

The facts relating to the incident in question are as follows. At 9.00 pm on Sunday, 4 May 2014, the appellant commenced night shift. She was assigned to care for a patient in the SNU who had returned to the hospital with post‑operative obstetric complications from a caesarean section. At about midnight, the patient informed the appellant that she needed to go to the toilet. The patient passed a large clot of blood so the appellant contacted the patient's obstetrician, Dr Thyer. Dr Thyer gave her instructions on how to treat the patient.
At about 12.30 am on 5 May 2014, the appellant told a supervisor that she believed that the patient should be transferred to a hospital with emergency facilities. The appellant voiced her concerns to Dr Thyer who appeared unconcerned by the patient's condition and decided not to move her immediately.
The appellant was left to care for the patient. After Dr Thyer left, the patient began to exhibit signs of pain and started crying and screaming.
When Dr Thyer returned at approximately 2.20 am, the appellant suggested that he authorise transfer of the patient immediately. Dr Thyer called for assistance from a consultant at another hospital and a transfer was arranged at 4.30 am.
The appellant did not seek medical help in the period of time immediately following the incident for issues related to that incident. It was not until July 2016 (more than two years after the incident) that she claimed to have realised that her mental health problems could be attributed to the events of 4 and 5 May 2014. The first record of her claim to be suffering PTSD was on 14 July 2016 when she presented to Dr du Preez reporting that she believed she may be suffering from PSTD.
Prior to July 2016 the appellant had only ever complained to her doctors of symptoms consistent with a diagnosis of Premenstrual Dysphoric Disorder (PMDD).

The appellant's position before the arbitrator

In proceedings before the arbitrator, it was the appellant's case that she left work before the completion of her shift at the suggestion of her supervisor, Ms Anna Sanasi. The appellant said that she lost time from work soon after the incident and consulted her general practitioner, Dr Azucar. Dr Azucar made a note of her consultation with him dated 12 May 2014 which demonstrates that she spoke with him about what happened (as well as other matters) shortly after the incident.
The appellant contended that, although she initially had believed her psychological problems were related to gynaecological issues, they were in fact related to the incident at work. She asserted that her psychological health deteriorated following the incident. She claimed that this was evidenced by the fact that she had begun to engage in avoidance behaviour following the incident. For example, she had begun to resist being in the area where the events occurred and being in positions of responsibility.
The appellant relied principally on the reports of psychiatrists Dr Claassen and Dr Bassett in support of her contention that her psychological condition was related to the events of 4 and 5 May 2014.
Dr Claassen expressed the opinion (in reports dated 24 and 28 November 2016) that the appellant suffered PTSD which was caused by the incident on 4 May 2014.[1]
[1] Exhibit A5.
Dr Bassett also expressed the opinion in a report dated 28 November 2016 that the appellant suffered PTSD and MDD as a consequence of the incident on 4 May 2014.[2]
[2] Exhibit A6.

The second respondent's position before the arbitrator

The first respondent did not appear at the hearing before the arbitrator but the second respondent did.
The second respondent denied that the appellant could prove that she suffered PTSD or MDD. Alternatively, the second respondent contended that any psychological condition suffered by the appellant was not contracted in the course of her employment - nor was it a condition to which her employment contributed to a significant degree. The second respondent submitted that the cause of the appellant's psychological difficulties was likely PMDD and marital problems.
The second respondent asserted that the history and symptoms the appellant had reported to doctors (especially Dr Claassen and Dr Bassett) were unreliable - and consequently, it was not possible to reach a conclusion on the balance of probabilities that the appellant sustained an 'injury' in the meaning of s 5 of the Act.
The second respondent submitted that the arbitrator should prefer the opinion of psychiatrist Dr Piirto who (in reports dated 9 and 10 February 2016) expressed the opinion that the appellant did not suffer from PTSD. Dr Piirto said that the appellant had either consciously or unconsciously exaggerated her symptoms or falsely attributed her symptoms to the incident on 4 and 5 May 2014.[3]
[3] Exhibits R6.1 and R6.2.
The medical evidence relied on by the appellant to support her claim of work‑related psychological injury was dependent upon an acceptance of the appellant's account of the symptoms she had suffered. The second respondent submitted that the appellant's evidence could not be accepted and therefore the opinions of Dr Claassen and Dr Bassett could not support a finding that she had suffered an injury or disease in the course of her employment or to which the events of 4 and 5 May 2014 had contributed to a significant degree.

The arbitrator's summary of the parties' respective positions

The arbitrator summarised the respective positions of the parties as follows:
16.It is the applicant's case that:
(a)she left work before the completion of her shift at the suggestion of Ms Sanasi and consulted her doctor;
(b)still distressed by the events, she lost time from work soon after and consulted her doctor;
(c)without her realising it, or understanding why (until much later, following medical consultation), her psychological health deteriorated and life at work and away from work (particularly in respect of her family life) was affected significantly. Initially she believed her psychological problems were related to gynaecological issues and she had arranged for the removal of a Mirena in the hope that this would alleviate the situation;
(d)in particular, she engaged in avoidance behaviour at work, resisting involvement in the area where the events occurred, and being in positions of responsibility;
(e)she sought medical help from time to time but in July 2016 realised she particularly required medical assistance for psychological injury and consulted her doctor;
(f)she suffered a personal injury by accident in the course of her employment on 4 May 2014 and/or contracted the disease (being a mental ailment) in the course of employment (in particular the events during the night shift) on and from 4 May 2014 to which the employment contributed to a significant degree; and
(g)she is entitled to payments of weekly compensation and expenses pursuant to cl 17 and 19 of Sch 1 of the Act.
17.It is the second respondent's case that:
(a)the credibility of the applicant is in issue. The evidence of the applicant and the symptoms and history she reported [to] the doctors alleging a work‑related post‑traumatic stress disorder or other work‑related psychological condition is unreliable and the appellant has failed to establish a case on the balance of probabilities;
(b)the contemporaneous medical records are more reliable and objective evidence than the appellant's testimony and establish significant non‑work‑related psychological conditions including a Pre‑Menstrual Dysphoric Disorder (PMDD) and significant marital problems culminating in the period of separation requiring counselling and medical support;
(c)since the reported history and symptoms are unreliable, it is not possible to reach a conclusion on the balance of probabilities that the appellant sustained an 'injury' in the terms contemplated by s 5 of the Act on 4 or 5 May 2014. In particular, the evidence does not establish, on the balance of probabilities that the employment was a significant contributory factor to the development of a psychological condition;
(d)due to primary or secondary motivators/gains the appellant has consciously or unconsciously falsely:
i.exaggerated her symptoms and psychological profile including the nature, intensity and chronicity of the symptoms; and
ii.attributed her psychological symptoms to an alleged incident in the course of employment, rather than to non‑work‑related factors; and
(e)the appellant has failed to establish liability under s 18 on the balance of probabilities and the application ought to be dismissed.

The arbitrator's findings

The arbitrator found that the appellant had not established on the balance of probabilities that she suffered an injury within the meaning of the Act. Essentially, the arbitrator found that the medical evidence could not support the appellant's claim that she suffered PTSD because the accounts she gave to the medical practitioners lacked credibility. The arbitrator was not prepared to give weight to the opinions of the psychiatric evidence supporting her claim in the absence of independent corroboration of the symptoms said to evidence that diagnosis.
The arbitrator gave comprehensive reasons for why the appellant was not a credible witness and why he believed her accounts to doctors to have been false and misleading. The arbitrator said at [35] and [43] ‑ [48]:
35.I have observed Ms Anderson giving evidence and make the following comments:
(a)whilst I do accept Ms Anderson's account of the events which occurred over the shift on 4 and 5 May 2014 until the point where the patient was transferred to another hospital, I did not find Ms Anderson to the otherwise be an entirely frank witness. At times she:
i.was evasive and/or unresponsive to questions;
ii.offered what I found to be implausible, unconvincing, inconsistent and uncorroborated explanations for certain events and circumstances which were not corroborated;
(b)Ms Anderson asserted that she was not angry about certain events or circumstances. However, this stands in contrast to many references in her own statement and to doctors that she was angry about matters including:
i.the fact that Dr Thyer had not taken account of her opinion;
ii.the fact that she was not offered counselling or debriefing following the incident;
iii.the unsafe operation and overwork in the hospital where she worked; and
iv.the context of her marital relationship, and angry outbursts in relation to the marriage counselling.
…
43.I find that the evidence given by Ms Anderson during the arbitration that:
(a)the people she was seen on occasion to engage in conversation whilst under surveillance were 'acquaintances' and not 'friends';
(b)the marquee outing could not be described as a social activity;
(c)she was only happy 'to a certain degree' on 26 January 2017
was implausible, unconvincing, evasive, and lacking in frankness.
44.I am not persuaded to accept the uncorroborated evidence of the appellant as to the existence of certain symptoms consistent with the diagnosis of PTSD. The symptoms were not reported by her on the numerous occasions before 14 July 2016 when she attended her GP for treatment. It was the appellant's evidence that she had not relayed the history of symptoms to doctors because she had been told by Ms Sanasi to put the event behind her and move on. That was not consistent with the evidence of Ms Sanasi, whose evidence I prefer to that of the appellant. Further, I note that:
(a)Ms Anderson agreed in cross‑examination that she understood the importance of providing a full history to doctors and said that she always told her doctors the truth;
(b)the histories obtained in clinical notes were often detailed and cannot be described as brief or perfunctory. In particular, notwithstanding her evidence that she had suppressed her recollection of the event, on 12 May 2014, Ms Anderson provided Dr Azucar with a detailed history of the circumstances of the incident;
(c)the content of notes on the Performance Review and Development Plan signed by Ms Anderson on 11 December 2014, with the comment from Ms Anderson being 'Thank you for your positive comments. I am happy with my discussion for my future development and outcomes' and with the comment from Ms Sanasi:
Sharon is a valued member of the team, choosing this year to flex onto days when needed. Sharon has some challenging patient events that have undermined her confidence in Team Leading at nights. In 2015 Sharon has requested to be rostered on day shifts, back space that can allow her to increase the knowledge and skills and also meet her family needs. I look forward to progressing with Sharon through to a more positive working environment.
Those comments do not support an assertion that Ms Anderson had symptoms of PTSD.
…
47.The fact that Ms Anderson previously provided history that she was not attending the gym but admitted in cross‑examination that she had been attending the gym significantly undermined her credibility. I note her evidence that in May 2015 she injured her coccyx in a gym incident also confirms gym attendance in the period after 4 May 2014.
48.The appellant has asserted that her work situation with the employer after the events on 4 May 2014 precipitated a search for employment elsewhere. I do note that there is an entry in clinical notes on 18 February 2014 relating to a pre‑employment medical. As it appears that event occurred well after the appellant started work at Mercy Hospital, it is not unreasonable to infer that the pre‑employment medical related to the seeking of employment elsewhere on a date prior to 4 May 2014.
The arbitrator made further findings adverse to the appellant's credibility. He found that she had deliberately misled psychiatrists Dr Piirto, Dr Claassen and Dr Bassett. He said in his reasons [39] ‑ [42]:
39.I have concluded that the applicant deliberately misled psychiatrists as to certain matters in that:
(a)she failed to mention gynaecological issues, her attendance upon her general practitioner for treatment in that regard, the opinion expressed by the general practitioner that those issues may be the cause of her condition, and the prescribing of Lovan;
(b)she informed Dr Piirto that she was unhappy, socially withdrawn, suffered from low energy, was hypervigilant and acutely aware of danger, and suffered from agoraphobia and panic attacks. I do not accept her evidence that she did not mislead Dr Piirto because the doctor did not ask about her current mental and physical condition. I prefer the evidence of comments Dr Piirto that the questions were asked of Ms Anderson. I accept the views expressed by Dr Piirto that the surveillance conducted of Ms Anderson contradicted her representations. Specifically, I accept the comments of Dr Piirto that:
i.her attendance at the marquee event and her interactions with others outside the gym, inside the shopping centre and at the Café during the surveillance showed her laughing, smiling on occasions, and happy and relaxed without any suggestion of being affected by any mood or anxiety symptoms and that there was certainly no behaviours;
ii.her suggestion that she was socially withdrawn was not evident – she was seen to engage in sometimes animated conversation with others on numerous occasions and there was no evidence of social avoidance;
iii.her attendance at the gym prior to at her attendance upon Dr Piirto (admitted by her in cross examination) raised questions about her credibility as a historian;
iv.she was hypervigilant and acutely aware of danger was countered by the fact that:
1.at the crowded marquee event, and over an extended period, she did not seem to be scanning environment for danger despite having two young girls with her;
2.she set off on her outing with the bikes with earphones in which was not consistent with a hyperalert individual; and
v.her attendance at shopping centres, on one occasion in a venue likely to be crowded two days before Christmas was in contradiction to her assertion that she avoided crowds;
40.The history relied upon by Dr Claassen to obtain a diagnosis included recurrent distressing memories and flashbacks, negative mood, detachment and estrangement and startle response. Due to my observations about the veracity of the applicant and to competing evidence, I am not satisfied that the history provided to Dr Claassen was reliable.
41.The history relied on by Dr Bassett to obtain a diagnosis included low mood, low energy, low motivation, anhedonia and non‑involvement. Due to my reservations about the veracity of the applicant and to competing evidence, I am not satisfied that the history provided to Dr Bassett was reliable.
42.The evidence of the applicant that her numerous absences from work was due to stress occasioned by the PTSD condition, and the history given to Dr Piirto that she had 27 such absences is contradicted by review of the Staff History Record where is the explanation for absences on numerous occasions were not for such reasons. The Staff History Record indicates that there were absences for her to care for sick children. In cross examination Ms Anderson admitted that she was in fact absent between 12 and 14 May 2015 because of a fractured coccyx. Whilst the applicant contended that she was on sick leave between 15 and 17 July 2015 due to severe panic attacks and flashbacks, clinical notes indicate she attended for treatment in respect of a viral rash. The Staff History Report records family leave on 14 September 2015 and leave without pay on the 15 September 2015. On 18 September 2015 there is a clinical note that Ms Anderson attended for treatment for PMS. Between 12 May 2014 and 14 July 2016 there is nothing in the clinical notes regarding absences due to stress, nor any mention of stress in the relevant periods in the Staff History Report;
…

The grounds of appeal

The notice of appeal relied on by the appellant raised six grounds of appeal as follows:
1.The learned arbitrator erred in law insofar as, having [at paragraph 35 of his Reasons. P.21] found that the events of 4 and 5 May 2014 had occurred as described by the appellant, he failed to then properly determine whether the appellant had sustained an injury (as defined by the Act), whether
1.1A personal injury by accident in the course of her employment, so as to fall within paragraph (a) of the relevant s 5 definition; and/or
1.2A mental disease (as defined) so as to fall within paragraph (c) and/or paragraph (d) of that definition;
2.As a consequence of that error, in respect of 1.2, the learned arbitrator also erred by failing to determine, to the extent the appellant had contracted a disease, or suffered the recurrence, aggravation, or acceleration of any pre‑existing disease, whether:
2.1Her employment was a contributing factor:
•to her contracting that disease; or
•to the recurrence, aggravation or acceleration of any pre‑existing disease
And, if so
2.2Whether any such contribution was significant for the Act's purposes, including s 5(5).
3.Further, and/or in the alternative, the learned arbitrator erred by focusing on the matter of the appellant's credibility as a 'central issue' [Reasons par.23, p.10] when there was no, or alternatively, the learned arbitrator failed to establish any, proper basis for so doing, as part of the proper assessment of facts, the making of relevant findings of fact, and applying relevant law to those facts.
4.Further, and in any event, the learned arbitrator erred in law by failing to provide adequate reasons for finding:
4.1The appellant's credibility was 'a central issue' [Reasons par.23, p.10] in a context of it being the second respondent's mere assertion as its principal submission [see Reasons at par.17, p.6], that 'the credibility of the appellant is in issue' and (she) 'has failed to establish a case on the balance of probabilities'; and
4.2The witness' evidence of Ms A Sanasi was to be preferred over the appellant's evidence, without identifying what the (presumably relevant) 'significant discrepancies' [see Reasons par.36, p.25] were between the respective testimonies;
5.Further, and in any event, the learned arbitrator erred in law by failing to find the appellant's psychiatric condition, the existence of which was not in issue [see Reasons at par.20, p.8], was Post Traumatic Stress Disorder (PTSD) when:
•It was the evidence of Doctors Claassen and Bassett that the appellant was suffering from PTSD;
•There was no evidence from Dr Piirto that the appellant was not suffering from PTSD; and
•The appellant's evidence of her symptoms was consistent with the diagnosis provided by Doctors Claassen and Bassett; or
6.In the alternative, make any finding as to the nature of the appellant's psychiatric condition.

The appeal must involve an error of law

Section 247(1) of the Act provides that any appeal from an arbitrator must be by way of leave of the court. Leave may only be granted if 'a question of law is involved'. In order for the appeal to succeed the appellant must establish that the arbitrator has made an error of law.[4]
[4] Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] ‑ [54]; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
A tribunal such as WorkCover WA does not make an error of law merely because the court or tribunal finds facts wrongly or on a doubtful basis.[5]
[5] Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] – [55]; BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6 [52] – [54].
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason J said (355 – 357):
(4)Review of the Findings of Fact
(a)Grounds of Review
As I have explained, findings of fact and inferences of fact are not reviewable under the A.D. (J.R.) Act unless jurisdiction is enlivened by the review of a 'decision' or 'conduct'. Findings of fact, including inferences, may be reviewed under the A.D. (J.R.) Act for error of law (s 5(1)(f)) and on the ground 'that there was no evidence or other material to justify the making of the decision' (s 5(1)(h)). It is not necessary to consider the content of the ground in s 5(1)(j), 'that the decision was otherwise contrary to law'.
The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (46); Australian Gas Light Co v Valuer‑General (47). Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light (47); Hope v Bathurst City Council (48). This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of difference conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (49). So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (50).
But it is said that '[t]here is no error of law simply in making a wrong finding of fact': Waterford v The Commonwealth (51), per Brennan J. Similarly, Menzies J observed in Reg v District Court; Ex parte White (52):
Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g illogical) inference of fact would not disclose an error of law.
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
In Pacific Industrial Co v Jakovljevic [2008] WASCA 60 the Court of Appeal considered the question of whether a question of mixed law and fact would 'involve' a question of law under the Act. Wheeler JA said:
17As has been noted on many occasions, the purposes of the Act include the resolution of disputes in a way which is fair and which is also expeditious, informal and inexpensive (s 3(d)). The primary fact‑finder in the event of a dispute is, clearly, the arbitrator. The arbitrator may refer novel or complex questions of law to the commissioner (s 246). In some circumstances, the legislative intention appears to be that the commissioner's jurisdiction can be invoked only where there is, not only a question of law, but a question of law of some significance in terms either of its general importance in the administration of the Act, or in its impact upon a litigant (s 247(2)(a)). No doubt because of the potential economic impact of a decision that a worker is, or is not, entitled to take common law proceedings, the Act does not provide for an additional test of importance on appeal from an arbitrator's decision pursuant to s 93D(10). In respect of those matters, provided only that there is a question of law 'involved', leave may be granted. If no question of law whatever can be identified as arising from an arbitrator's decision, there is of course no jurisdiction in the commissioner to grant leave to appeal. The statutory framework indicates that the correction of errors of law is the commissioner's primary, but not sole, function.
18The legislative use of the term 'involved' indicates that the commissioner's role is not confined to the determination of pure questions of law. Plainly, it extends to questions of mixed fact and law. Further, in other contexts, it has been held that, if an appeal is provided for where a question of law is 'involved', the result is that if some question of law is involved, the whole of the decision appealed from is open to review, and not merely the question of law. (references omitted)
And at [25]:
… should an appellant raise a number of issues which were plainly questions of law, but were equally plainly unarguable, in an attempt to persuade the commissioner to engage in a pure factual review, the commissioner might consider that that was not appropriate, having regard to the legislative focus upon the correction of errors of law as the commissioner's principal, but not only, task.

Grounds 1 and 2

Grounds 1 and 2 both assert similar errors of law and can be dealt with together.
Ground 1 contends that the learned Arbitrator 'failed to properly determine' whether the appellant suffered an injury within the meaning of the Act.
Ground 2 contends that, as a consequence of the error in ground 1, the arbitrator 'failed to determine' whether the appellant's employment was a contributing factor to the recurrence, aggravation or acceleration of a pre‑existing disease.
Counsel for the appellant in effect submitted that, because the appellant had a perception that her injuries were caused by the incident at work, the arbitrator was compelled to conclude that she suffered an injury within the meaning of the Act. The appellant submitted that, in these circumstances, the decision of McCann DCJ in Department of Education v Azmitia [2014] WADC 85 (a decision upheld on appeal in Department of Education v Azmitia [2015] WASCA 246) proscribed a 'decision making structure' which the arbitrator was bound to follow.[6]
[6] Appeal ts 128.
Counsel for the appellant submitted that the 'decision-making structure' that the arbitrator was supposedly bound to follow was contained in McCann DCJ's reasons where his Honour said [21]:
The arbitrator summarized the issues to be determined in his reasons for decision (at [6]). These were:
(a)whether the events described by the respondent on 23 and 26 March 2012 occurred;
(b)if so, whether she sustained an injury, being a mental disease such as to fall within s 5(c) or s 5(d) of the Act;
(c)if so, whether her employment was a contributing factor to the contraction of the disease;
(d)if so, whether the employment contributed to a significant degree to the contraction of the disease;
(e)whether the disease wholly or predominantly arose from an excluded matter within s 5(4) of the Act and, if so, whether the relevant conduct of the appellant was harsh and unreasonable;
(f)whether the respondent failed to mitigate her loss and, if so, the consequence (if any) of that failure;
(g)whether the respondent is entitled to weekly payments of compensation for total incapacity and, if so, the amount;
(h)whether the respondent is entitled to payment of statutory expenses.
One issue in Azmitia [2014] WADC 85 was the question of whether the worker suffered the disease caused by her perception of what occurred (and whether by reason of the disease she was totally incapacitated for work).
His Honour Judge McCann said [16]:
A stress claim is compensable if it is caused by a worker's subjective reaction to objectively proven facts. It is not necessary for a worker to prove that his or her subjective perception of proven facts was reasonable. (See Wiegand v Comcare [2002] FCA 1464; Gallin v Central West Coast College of TAFE [2006] CM - 21/2003; Pedley v West Coast College of TAFE C21 - 2006 [26], [50] - [51]).
His Honour then said [19]:
Thus, in this case, the onus lay on the respondent to prove, first, that she suffered a disease caused by her perception of proven facts and, second, that by reason of the disease she was totally incapacitated for work in the sense that she was wholly unfit to return to her employment as a primary school teacher in any capacity.
In one subsequent case before the tribunal, a worker's subjective reaction to objectively proven facts was referred to by counsel as the worker's 'Azmitia' perception: Pilbara Iron Company (Services) Pty Ltd v Space Suleski [2017] WADC 114 [43] ‑ [46] (Herron DCJ).
As I understand counsel for the appellant's submission, because the appellant claims to have a perception her injuries were caused by the incident at her workplace on 4 and 5 May 2014 (a so-called 'Azmitia' perception) the arbitrator was compelled to find that her mental health issues were either caused or contributed to by that incident and therefore constituted an 'injury' within the meaning of s 5. This argument is misconceived.
Neither the decision of McCann DCJ in Azmitia [2014] WADC 85 (nor the decision of Court of Appeal which upheld that decision) approved a structure of decision‑making which an arbitrator is bound to follow in every case where a worker's claim of psychiatric or psychological injury is based wholly or partly on a worker's claimed perception of the cause of injury.
Azmitia[2014] WADC 85 can also be distinguished on its facts. In that case, although the arbitrator had made a finding that the worker lacked credibility, he allowed the claim on the basis that there was objective evidence to establish that the worker's employment had contributed to her injury to a significant degree. Also, in that case, it was relevant that the worker had sought immediate medical attention following the incident the subject of her claim.[7]
[7] Azmitia [35].
In contrast to the facts in Azmitia [2014] WADC 85, the appellant in the present case did not seek treatment immediately. Although there is evidence that the appellant complained about the incident in a consultation with general practitioner Dr Azucar on 4 May 2016, she did not seek treatment for mental stress related to that incident - and there was no evidence that she needed any such treatment. Further, although there is also no dispute that the appellant (through her counsel) now claims that she had an 'Azmitia' perception related to that incident, the objective evidence in my view does not support her perception (whether genuine or feigned) that her mental health issues were related to her employment. I make this finding substantially for the reasons given by the arbitrator. I do not therefore accept the appellant's submissions that the learned arbitrator was not mindful of the kind of issues raised in Azmitia [2014] WADC 85.
It is correct that the arbitrator did not determine that the appellant suffered an injury within the meaning of s 5 of the Act. The fact that he did not make specific reference to what her condition was and whether that fitted within the definition of s 5(a) or s 5(d) of the Act is of no consequence. What was important was the finding that - whatever condition the appellant suffered - it was not a condition which was caused by her employment or to which her employment made a significant contribution.
Having rejected the appellant's submission that Azmitia[2014] WADC 85 proscribed a decision making structure that the arbitrator was bound to follow, there is no other basis in grounds 1 or 2 for the proposition that the arbitrator 'failed to properly determine' the issues.
On their face, grounds 1 and 2 do not involve an error of law. The grounds amount to bald assertions of legal error. They do not particularise how the learned arbitrator fell into error or indeed how he 'failed to properly determine' or 'failed to determine' the issue of whether the appellant had suffered an injury or recurrence, aggravation or acceleration of a pre‑existing disease.
At the hearing of the appeal the appellant's counsel was invited to particularise why it was that the appellant submitted that the arbitrator 'failed to properly determine' whether the appellant had suffered an injury within the meaning of s 5(c). Counsel for the appellant appeared to submit that, because the arbitrator had focused on the appellant's credibility, this had caused him to fall into error because he then rejected the opinions of Dr Claasen and Dr Bassett; which then meant he failed to determine that she had suffered an injury within the meaning of the Act.[8]
[8] Appeal ts 13.
This argument has no merit.
It was not a particular of grounds 1 and 2 that the focus on the appellant's credibility caused the arbitrator to fall into error. In any event, although the arbitrator may not have expressly said so, it was plain that the arbitrator had concluded that the appellant did not suffer an 'injury' within the meaning of s 5(c) of the Act.
The main theme of the appellant's submissions at the hearing of the appeal was that the arbitrator had erred in law by placing undue emphasis on the issue of the appellant's credibility. In that regard, it seems that the appellant relies primarily on grounds 3 and 4.
I will consider the merits of the arbitrator's focus on the issue of the appellant's credibility and the adequacy of his reasons in relation to that issue when I deal with grounds 3 and 4.
However, if it is being suggested that the arbitrator 'failed to properly determine' whether the appellant suffered an injury for some reason other than what is said to be an undue focus on the issue of credibility, it is appropriate that consideration be given to the principles governing the arbitrator's obligation to give reasons. Those principles are to be found in the legislation.

Legal principles governing the arbitrator's reasons

Section 5 of the Act requires that the arbitrator answer the question of whether the worker can establish (on the balance of probabilities) that they suffered an injury caused by their employment or an injury which was contributed to a significant degree by their employment. In my view, the arbitrator was acutely aware of the fact that the appellant suffered a psychiatric condition and that he was required to make a finding as to whether this was an 'injury' caused or contributed to by her employment. He said [20]:
It is important to note that there is no dispute that Ms Anderson suffers from a psychiatric condition. However, issues in this matter are whether:
(a)there was an injury (as contemplated by s 5 of the Act); and
(b)in the event of there being an injury, the employment caused that injury or contributed to it to a significant degree.
Section 188 of the Act provides that an arbitrator is bound by rules of natural justice but is not generally bound by the usual rules of evidence. It provides:
188.Practice and procedure, generally
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator —
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Section 213 of the Act governs the principals to be applied by the arbitrator in the provision of reasons. Relevantly, it states:
213.Decisions and reasons, form and content of
(1)…
(4)The reasons for an arbitrator's decision -
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(5)A written transcript of the part of the proceeding in which a decision is given orally or reasons are given orally is sufficient compliance with the requirement for the decision or reasons to be in writing.
(6)The fact that a decision is, or reasons are, given orally or in accordance with subsection (4) or (5) is not of itself a ground for reversing or modifying the decision on an appeal.

Counsel for the appellant's submissions lacked any meaningful analysis as to why the arbitrator's decision making process was wrong or inadequate. In reality the appellant's submission amounted to no more than a complaint that the arbitrator made findings of fact contrary to that for which the appellant contended.
Having regard to the fact that section 213(4) of the Act is designed to promote 'expedition, simplicity and transparency'[9] the arbitrator was not required to provide detailed reasons.
[9] See: Peter Nardi v Department of Education and Training [2006] WACC C22-2006
As I will explain however in relation to ground 4 the arbitrator did provide comprehensive reasons for his findings that the appellant did not suffer a compensable injury.[10] I can find no deficiency in his reasons amounting to an error of law.
[10] Arbitrator's reasons, pars 35 ‑ 49.
I would refuse leave in respect of grounds 1 and 2.

Ground 3

The arbitrator found that the appellant's account of the incident was accurate but that she was not credible. He found that her account of her symptoms of PTSD was not plausible.
At the hearing of the appeal counsel for the appellant submitted that the arbitrator fell into error because he gave the question of credibility 'more than its proper place in the decision‑making framework'.[11] The thrust of the appellant's argument in relation to ground 3 was, because the arbitrator had said that the central issue was the credibility of the worker, it led to the inevitable conclusion that any medical evidence favourable to the worker could not be relied on. Counsel for the appellant submitted that the learned arbitrator erred because, once he found the appellant not to be credible, he rejected 'anything [she] had [has] ever said to anyone'[12] (in particular, what she had said to her treating doctors).
[11] Appeal ts 33.
[12] Appeal ts 41.
As I will explain, having regard to various factors, including the delay in the appellant having reporting the alleged injury, the appellant's gynaecological issues, the evidence of Ms Sanasi to the effect that the appellant made no complaint in the weeks following the incident, the various clinical notes in the two years post the incident (which make no mention of the appellant being concerned about it) together with Dr Piirto's opinion, an adverse finding as to her credibility was inevitable. Once that finding was made, it followed that arbitrator was not bound to conclude that the opinions of Dr Claasen and Dr Bassett (upon whose opinion her entire claim rested) should be accepted.
As I will explain in due course, both Dr Claassen and Dr Bassett had been misled by the appellant in a number of significant respects.
It is difficult to understand the appellant's submission that the arbitrator fell into error by placing too much emphasis on the appellant's credibility. This is a case about alleged psychiatric injury. Plainly the credibility of the appellant's account to the doctors (who the appellant knew were to provide reports for the tribunal of fact) was an important issue.
In the case of Beer v Duracraft Pty Ltd [2004] WASCA 192 [80], McLure J held:
80.In this case, as with the majority of cases involving medical expert evidence, the relevant history supplied by the claimant provides the factual foundation for the statement of expert opinion. In many cases there is not an exact correlation between the facts proven in evidence and the facts relied upon by the medical practitioner upon which his or her opinion is based. The role of the decision maker is to examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight.
To the extent that there was no other objective evidence of the appellant having suffered the 'injury' complained of (ie PTSD) the appellant's account of her symptoms to the doctors and her evidence at the hearing was not only important but critical.[13]
[13] Pollock v Wellington (1996) 15 WAR 1; Beer v Duracraft Pty Ltd [2004] WASCA 192.
Given the arbitrator's finding that the worker's description of her symptoms to Dr Claassen and Dr Bassett was unreliable, the arbitrator had little choice but to conclude that their opinions had been based on unproven facts and could therefore carry little weight.
I would grant leave to appeal in relation to ground 3 but dismiss that ground.

Ground 4

The first limb of ground 4 asserts a similar error to that asserted in ground 3. Here it is said that the arbitrator focused too heavily on the appellant's credibility. Therefore, for the reasons I have given in relation to ground 3, I would grant leave but dismiss the appeal on the first limb of ground 4.
The second limb of ground 4 in effect complains that the arbitrator failed to give adequate reasons for preferring the evidence of Ms Sanasi.

The requirement to give reasons

The common law requirement for judicial officers to give reasons also applies to review officers.[14] The reasons given should enable the parties to understand why they were not successful.[15]
[14] See Summit Homes v Lucev (1996) 16 WAR 566, 571 (Ipp J).
[15] See Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 [27].
In Beale v Government Insurance Office(NSW) (1997) 48 NSWLR 430, 422 Meagher JA said that where there is conflicting evidence an arbitrator should set out his findings as to why one set of evidence is preferred to another.
An assertion of a failure to give adequate reasons can involve a question of law. An assertion of providing inadequate reasons can only amount to an error of law and to an appealable error where there is a miscarriage of justice.[16]
[16] See Mount Lawley Pty Ltd v Western Australia Planning Commission (2004) 29 WAR 273 Catholic Education Office of WA v Granitto [2012] WASCA 266.
Once a question of law is involved the whole decision is open to review.[17] The court must conduct a real review but, before the appeal is allowed, there must be demonstrated some error of fact, law or logic.[18] A decision does not involve a question of law unless the error is material to the decision.[19]
[17] Pacific Industrial v Jakovljevic [18].
[18] Pacific Industrial v Jakovljevic [20] and [26].
[19] Australian Broadcasting Tribunal v Bond (353).
As ground 4 involves a question of law it is appropriate to examine the arbitrator's reasons in relation to his findings as to the appellant's credibility and conduct a real review of them.

The arbitrator's reasons – analysis of adequacy of reasons

At the hearing of the appeal, the appellant's counsel submitted the inadequacy of the arbitrator's reasons was evident from the fact that the hearing went for a number of days and the arbitrator's reasons amounted to 'no more than five or six pages'.
There were in fact 31 pages of reasons (albeit that a large portion of the reasons summarised the respective positions of the parties and the evidence). However, the fact that the reasons were comparatively short is not a valid criticism.
Counsel for the appellant could not articulate why the arbitrator failed to give adequate reasons for his factual findings. In the course of his oral submissions, he repeatedly described the arbitrator's reasons in pejorative terms. For example, at the hearing of the appeal he said:
a quick and shoddy decision that did not do justice to the evidence, never mind that's the outcome. That's the effect of the poor decision‑making process that's been followed by the learned arbitrator contrary to what's required of him at law in terms of discharging his obligation to act judicially. It's just simply not decision‑making that meets any basic requirements for the discharge of the onus that a decision‑maker bears.[20]
[20] ts 53 - 54.
Counsel for the appellant also claimed that the arbitrator took 'shortcuts at every opportunity', 'jumped to end points' and did not have 'proper regard to what the evidence – how the evidence ought properly to have been construed'.[21]
[21] Appeal ts 53 – 54.
Counsel for the appellant's description of the arbitrator's reasons in these terms fails to demonstrate why the reasons were inadequate. The submissions were akin to saying that the arbitrator's findings are 'contrary to the weight of the evidence'. This is to make submission as to an error of fact. Glass JA (with whom Samuels JA agreed) said in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 [156]:
It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Exparte White (1966) 116 CLR 644 at 654.
The second limb of ground 4 criticises the arbitrator for preferring the evidence of Ms Sanasi to that of the appellant, without identifying the significant discrepancies between their evidence.
The requirement for the arbitrator to give reasons has to be considered in light of s 213(4) of the Act.
In Peter Nardi v Department of Education and Training [2006] WACC C22-2006 Commissioner McCann said [31] that the purpose of s 213(4) was to promote expedition, simplicity and transparency in the giving of reasons.
Also, in Sotico Pty Ltd v Wilson [2007] WASCA 112, Wheeler JA held that this section did not require an arbitrator to engage in an exhaustive process of specifying which medical opinions were rejected and the reasons for their rejection. This would only be necessary where the rejected opinion attacked the reasoning process of the accepted opinion.
Both cases are consistent with what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 where the Court held that the reasons of an administrative decision maker should not be scrutinised over-zealously.
In my view, although the arbitrator may not have examined every item of evidence, he was not required to do so. His failure to examine every item of evidence, even if that could be established, would not be sufficient to conclude that there had been an error of law giving rise to a miscarriage of justice.
In any event, the arbitrator did specifically refer to discrepancies between the evidence of Ms Sanasi (as well as other evidence) and the appellant.[22]
[22] Arbitrator's reasons at [44].
The following examples of discrepancies between her evidence and other evidence illustrate why the arbitrator was justified in reaching the conclusion that he did in relation to the issue of credibility.

The appellant's denial of being angry with her employer

The appellant gave evidence in cross‑examination denying that she was angry about the events.[23] However, in her witness statement filed in support of her application she said that she was angry Dr Thyer had not taken her opinion into account.[24] She said she was 'so angry that she been asked to perform an unsafe operation by Dr Thyer.[25] She had also said that she felt a 'mix of emotions' after the events, including anger.[26]
[23] ts 36, 173.
[24] Exhibit A4 par 37.
[25] Exhibit A4 par 34.
[26] Exhibit A4 par 42.
In contradiction to her evidence, Dr Piirto noted in the mental state examination conducted on 3 January 2014 that the appellant appeared more frustrated and angry rather than anxious when describing what had happened. [27]
[27] Exhibit R6.1 page 12.
The appellant asserted that the second respondent had failed to offer her counselling or debriefing services after the incident. However, there was evidence that on 12 May 2014 her general practitioner did offer her counselling services but she turned the offer down.[28] Also, Dr Bassett's report referred to the fact that the appellant had made similar comments which suggested that she was more concerned about the failure of the hospital to manage the situation properly.[29]
[28] Exhibit R 6.1 page 17.
[29] Exhibit A6 page 72.
The appellant's denial of being angry with her employer for not offering counselling or debriefing was inconsistent with her contention that her employment - and specifically the events of 4 and 5 May 2014 - were a primary reason for her mental illness.

Discrepancies between the evidence of the appellant and Ms Sanasi

There were a number of significant discrepancies between the evidence of the appellant and the witness Anna Sanasi who gave evidence that the appellant did not report any ongoing distress following the incident.[30]
[30] Exhibit R4.1 pars 32 – 33, ts 227, 249, 250, 256.
Although in the period following the incident in question, the appellant took sick leave and was absent from work on a number of occasions, Ms Sanasi's evidence was that the reason for her absenteeism was not related to the incident on 4 and 5 May 2014.[31]
[31] Exhibit R 4.1 pars 27, 28, 34 – 36, ts 225, 235, 238, 255.
The appellant was cross‑examined as to why she had not told any doctor before 14 July 2016 that she suffered symptoms consistent with PTSD. The appellant said that she did suffer ongoing distress but the reason why she had not told anyone was because Ms Sanasi had told her to 'put the event behind her' and 'move on'.[32] This was inconsistent with the evidence of Ms Sanasi who denied that she said words to that effect to the appellant.[33]
[32] Exhibit A4 par 88, ts 32 – 33, 40 – 43, 56 – 57, 65, 86, 90, 92, 192, 193.
[33] ts 249, 256.

The appellant misled Dr Piirto

In her report dated 9 February 2017, Dr Piirto said that in January 2017 the appellant had reported an array of symptoms which included feeling lethargic, not going to the gym and suffering social withdrawal.[34] Dr Piirto provided a supplementary report dated 10 February 2017 after she had been provided with surveillance footage of the appellant showing her in December 2016 and January 2017 at a shopping centre, at the gym and spending time with family and friends. In that supplementary report Dr Piirto expressed the opinion that what was in the footage was not consistent with the symptoms the appellant had described to her in January 2017.[35]
[34] Exhibit R6.1, page 8.
[35] Exhibit R6.2, pages 5 – 7.
Under cross‑examination, the appellant explained that she believed that Dr Piirto's description of symptoms in her report dated 9 February 2017 related to the appellant's complaint of past symptoms (from which she has subsequently recovered). She said that Dr Piirto had not asked her about her current symptoms.[36] However, in her report dated 10 February 2017, Dr Piirto made it clear that the symptoms the appellant had described to her were related to her current symptoms.[37]
[36] ts 96 – 102, 104 – 109, 127, 137.
[37] Exhibit R6.2.
The appellant admitted in cross‑examination that she had been to a gym class on 12 May 2015[38] so her claim that she took time off work for stress on that day was not true.
[38] ts 47.
The appellant admitted that she did not tell Dr Piirto that she had received treatment for PMS and gynaecological symptoms.[39]
[39] ts 93, 94.
The appellant told Dr Piirto she had 27 absences from work prior to July 2016 for symptoms related to PTSD.[40] However, the evidence contradicted this claim. On 21 August 2014 she attended upon Dr Azucar and said that she was not coping with normal day-to-day activities.[41] Dr Azucar had recorded in his clinical notes for that consultation that the appellant was having issues at home; but there was no record in his notes of her having issues at work.[42]
[40] Exhibit R6.1.
[41] Exhibit A4, [69].
[42] Exhibit R6.3.
Under cross‑examination the appellant insisted that she had reported work issues to Dr Azucar (and claimed that he had not written down what she said). She eventually conceded under cross‑examination that she did not mention work issues to Dr Azucar that day.[43]
[43] Exhibit A4, exhibit R6.3, ts 39.

The appellant's evidence as to her reasons for taking sick leave

The appellant claimed that she took time off work due to illness between 24 September 2014 and 1 October 2014.[44] In cross‑examination, however, she conceded that she had not gone to the doctor at that time and that she had not taken the whole week off; she had only taken one day of 'family leave'.[45]
[44] Exhibit A4.
[45] Exhibit R4.1, [71] ts 41.
The appellant claimed that she took leave between 12 May 2015 to 14 May 2015 due to stress. The medical reports establish, however, that during that period of time, she had attended her doctor for a fractured coccyx (which she had suffered whilst dancing during a Zumba class at the gym).[46]
[46] Exhibit A4, ts 47 – 48.
The appellant further claimed she took sick leave between 15 July 2015 to 17 July 2015 for stress. However, under cross‑examination, she agreed that she had been to see Dr Swart on 14 July 2015 for a rash but had made no mention of stress at that time.[47]
[47] Exhibit A4, exhibit R6.3, ts 55.

The appellant misled Dr Claassen and Dr Bassett

Dr Claassen's opinion that the appellant suffered PTSD was based entirely on the appellant's own account of her symptoms.[48]
[48] Exhibit A5.
The appellant admitted in cross‑examination that she had not informed Dr Claassen about having had extensive treatment for PMS in 2014 and 2015.[49]
[49] ts 88.
Dr Bassett also provided a report expressing the opinion that the appellant suffered PTSD, which he said had been unrecognised due to her tendency towards denial and her 'high psychological resistance'. Dr Bassett expressed the opinion that the appellant also suffered MDD.[50]
[50] Exhibit A6.
However, Dr Bassett's opinion was also based on a history provided to him by the appellant who provided a number of contradictory explanations for her absences from work. Further, the history provided to Dr Bassett did not include references to her symptoms of PMS. Dr Bassett was not asked about whether the surveillance footage of the appellant changed his opinion.
Having regard to the examples I have just given, even if it could be said that the arbitrator failed to give adequate reasons for his conclusions (which I do not accept) I would not conclude that there has been a miscarriage of justice.
I would grant leave in respect of the second limb of ground 4 but dismiss the appeal on that ground.

Grounds 5 and 6

Grounds 5 and 6 raise the question of whether the appellant's condition was an 'injury' within the meaning of the Act.
Ground 5 asserts that the arbitrator erred in law by failing to find the appellant's psychiatric condition (the existence of which was not in issue) amounted to PTSD or, in the alternative, failed to make any finding as to the nature of the appellant's psychiatric condition.
The question of whether the facts meet a particular statutory definition, such as, in the present case the definition of 'injury' within the meaning of s 5 of the Act raises a question of law: Vetter v Lake Macquarie City Council (2001) 202 CLR 439 [24] (Gleeson CJ, Gummow and Callinan JJ):
Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law.

At the hearing of the appeal, the second respondent conceded that it would have been helpful if the arbitrator had specifically addressed whether the injury was a s 5(a), s 5(c) or s 5(d) injury, but submitted that his failure to do so did not mean he fell into error.
In my view the arbitrator's reasons disclose sufficient reasons for rejecting a conclusion that the appellant's psychiatric problems were related to the incidents of 4 and 5 May 2014 and did not therefore amount to an 'injury' within the meaning of s 5 of the Act. In this regard the arbitrator gave the following reasons:
24.Dr Claassen, Consultant Forensic Psychiatrist, reported on 28 November 2016. He stated that at the end of the initial consultation he diagnosed Post‑Traumatic Stress Disorder.
25.Dr Bassett, Consultant Psychiatrist, prepared a report dated 24 November 2016. He stated that it was his opinion that Ms Anderson suffered from:
(a)Post‑Traumatic Stress Disorder which he thought lay unrecognised for some time because of a tendency towards denial and a high psychological resilience; and
(b)a Major Depressive Disorder with melancholic symptoms
which he related directly to the work incident.
26.Dr Piirto, Consultant Psychiatrist, first reported on 9 February 2017. The doctor said that:
(a)on the basis of the history given to her:
i.she had concluded that Ms Anderson presented with a Unspecified Anxiety Disorder, which included some phenomena of a Post‑Traumatic Stress Disorder but she had not been convinced after assessment that Ms Anderson presented with sufficient criteria respect to quality and severity to diagnose a formal PTSD;
ii.she had concluded that Ms Anderson had presented with a Depressive Disorder, the differential diagnosis being a Major Depressive Disorder in partial remission or a Persistent Depressive Disorder which had partially responded to treatment;
(b)on the basis of the collateral history provided she formulated the opinion that Ms Anderson presented with Premenstrual Dysphoric Disorder, which had been clinically significant for an extended period. Dr Piirto said she believed Ms Anderson was aware of the diagnosis or that of Premenstrual Syndrome but did not disclose that to Dr Piirto on either medical or psychiatric enquiry. The contaminating factor was that Ms Anderson had knowingly exaggerated the psychiatric profile, including the nature and intensity of symptoms of concern, as well as their chronicity and the associated functional impairment, for primary and secondary gain. She also stated that Ms Anderson may not present with as many PTST phenomena as she disclosed;
(c)in view of the Premenstrual Dysphoric Disorder, Ms Anderson was somewhat predisposed to developing other psychiatric disorders but she did not disclose any other formal history;
(d)Ms Anderson's description of being angry at not being offered debriefing or counselling by her employer was to be compared with Ms Anderson's declinature of an offer of counselling a week after the event by her general practitioner. Dr Piirto said Ms Anderson's indignant response regarding the lack of follow‑up after the event by management was a reflection about how she perceived the situation was not dealt with appropriately and was not primarily about her belief that she had a debilitating stress response which was not addressed;
(e)whilst there may have been some indirect impact on the marriage from Ms Anderson's mental state, she felt it unlikely the most significant factor particularly as Ms Anderson's husband acknowledged he had directly contributed to difficulties;
(f)medical practice notes did not support the history given by Ms Anderson that she had had been off work on 27 occasions because of stress and anxiety. The sick leave probably included time such as when she fractured her coccyx; and
(g)the concept of a diagnosis of Post‑Traumatic Stress Disorder had been introduced by Ms Anderson in July 2016 and the understanding of the timing of that was important. The extended delay in presenting to the GP suggested Ms Anderson was not sufficiently distressed or impaired to the extent of seeking confirmation of diagnosis and treatment. The GP did not document an independent assessment of symptoms suggesting PTSD was present. He did not describe her demeanour as being anxious or distressed but instead as 'slightly overbearing'. He referred her to a psychiatrist to confirm the diagnosis and Ms Anderson both attended the GP and subsequently the psychiatrist with a purpose. It appeared Ms Anderson had decided to pursue a worker's compensation claim on the basis of PTSD but needed to have the diagnosis confirmed. However, when she attended the GP for the referral, she had informed him she wanted to quit as she believed the work environment to be unsafe. This belief was not illness related. The doctor thought it was relevant that Ms Anderson had attended to issues relating to her workers compensation claim without evidence of cognitive impairment or functional compromise.
(h)she thought that the shift in Ms Anderson's presentation to a GP in early November 2016 and to an independent psychiatrist in late 2016 was informative. The doctor said that either the circumstances the latter assessment or unusually stressful or Ms Anderson exaggerated her symptoms and that both possibilities did not equate with a significant disorder being present.
Whilst the evidence of Dr Claassen and Dr Bassett might support a finding that the appellant had PTSD, as I have explained, the arbitrator was entitled to conclude the factual basis for their opinion was not established. If the factual basis for their opinions was not established then the arbitrator was justified in rejecting them. There was no other evidence which would have permitted the arbitrator to conclude that the appellant suffered PTSD. The arbitrator was entitled to prefer the evidence of Dr Piirto whose opinion was that the appellant did not suffer PTSD related to her employment or at all. If there was no psychiatric condition caused by her employment or to which her employment was causally related, there could be no 'injury' within the meaning of s 5 of the Act.
In my view, in light of the opinions of Dr Claassen and Dr Bassett it cannot be said that grounds 5 and 6 are 'plainly arguable'. I would grant leave on grounds 5 and 6 but for the reasons articulated above I would dismiss the appeal on those grounds.

Orders

My orders are as follows:
1.Leave is refused on grounds 1, 2, 3 and on the first limb of ground 4.
2.Leave on the second limb of ground 4 and grounds 5 and 6 is granted but the appeal on those grounds is dismissed.
I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
IG
ASSOCIATE TO JUDGE LONSDALE
1 JUNE 2018