Berri v Harbour City Ferries Pty Limited - [2019] NSWWCCPD 9

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Berri v Harbour City Ferries Pty Limited [2019] NSWWCCPD 9
APPELLANT:	Mohamad Abboud Berri
RESPONDENT:	Harbour City Ferries Pty Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-3405/18
ARBITRATOR:	Mr N Read
DATE OF ARBITRATOR’S DECISION:	5 October 2018
DATE OF APPEAL DECISION:	15 March 2019
SUBJECT MATTER OF DECISION:	Factual findings – whether material facts were overlooked or given too little weight; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied; current work capacity; s 32A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:	Taylor & Scott Lawyers
Respondent:	Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. Paragraphs [2] and [5] and Order [2] of the Certificate of Determination dated 5 October 2018 are revoked, otherwise the Certificate of Determination is confirmed.
2. The matter is remitted to a different Arbitrator for re-determination of the outstanding issues, consistent with these reasons.

INTRODUCTION

This appeal concerns a claim for weekly compensation under the Workers Compensation Act 1987 (the 1987 Act). In particular, it concerns a challenge to the Arbitrator’s finding concerning the worker’s capacity for suitable employment as defined in s 32A of the 1987 Act.

BACKGROUND

In late 2005 Mohamad Berri, the appellant worker, commenced work with Harbour City Ferries Limited, the respondent, as a ships painter. He was required to maintain the exterior and interior of ships with paint covering.
On 21 May 2015, the worker lodged a claim for injury to his right shoulder. He claimed he sustained an injury to his right shoulder after painting the base of the seats on a river cat in October 2014. On 7 September 2015, the insurer denied liability for the claim.
On 7 January 2016, the worker was suspended on full pay pending an investigation into allegations of serious misconduct. As a result of the investigation, the respondent found a number of allegations to be substantiated relating to misconduct, unsafe work practices and breach of the respondent’s code of conduct.
On 18 January 2016, the worker attended a meeting with the respondent to discuss his response to the investigation findings. Amongst other things, during the meeting the worker raised several allegations of bullying and harassment. The respondent investigated those allegations.
On 8 February 2016, the worker made an application to the respondent to be made redundant. He said he felt anxious working around people who had been involved in the workplace investigation into the allegations against him. That request was denied.
On 27 June 2016, the worker reported that he felt pain in his left shoulder after using a needle gun to descale paintwork on 21 June 2016.
From 29 June 2016, the worker undertook suitable duties.
On 27 July 2016, the worker stopped working for the respondent. This was following a further alleged incident of workplace bullying and abuse.
On 14 July 2017, the insurer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying the claim for compensation for psychological injury as a result of the left shoulder condition.
On 25 July 2017, the worker underwent surgery on his right shoulder at the hand of Dr Doron Sher, orthopaedic surgeon.
On 13 October 2017, the worker made a claim for compensation against the respondent. He claimed that he sustained a psychological injury (major depression). The description of the injury recorded that the psychological condition occurred due to multiple incidents of bullying and harassment from co-workers from 1 January 2014 to 27 July 2016, when he ceased working for the respondent. The only reference to the injuries to the shoulders is recorded under a section referring to “previous injury/condition that relates”, where it is recorded: right shoulder injury deemed 1 October 2014 and left shoulder injury dated 21 June 2016.
On 16 November 2017, the insurer issued another notice pursuant to s 74 of the 1998 Act, denying liability for the alleged psychological injury.
On 5 July 2018, the worker lodged an Application to Resolve a Dispute (the Application) seeking weekly benefits and medical expenses in respect of three injuries. The first injury is recorded as an injury to the right upper extremity, alleged to have occurred on 1 October 2014 when the worker felt significant pain in his right shoulder after painting the base of the seats on a river cat. The second injury is recorded as injury to the left upper extremity, alleged to have occurred on 21 June 2016 after he spent a day using a needle gun to descale paintwork and painted the floor of a ferry, using his left arm so as to protect his injured right shoulder. The third injury is recorded as a psychological injury deemed to have occurred on 27 July 2016, alleged to have occurred as a result of exposure to bullying and harassment from the worker’s co-workers and supervisors from 2014 until 27 July 2016, on which date he ceased working. It is also recorded that following the worker’s “bilateral shoulder injuries [he] noticed an increase in the number of incidents.”
On 26 July 2018, the respondent filed a Reply to the Application relying on the s 74 notices issued.
On 7 September 2018, the matter was listed for conciliation/arbitration proceedings before Arbitrator Read. At the commencement of arbitration proceedings, the Arbitrator granted the appellant leave to amend the date of the injuries claimed to a deemed date of 27 July 2016, that being the last date of work and first date of alleged no current work capacity. Following the arbitration proceedings, the Arbitrator reserved his decision.
On 5 October 2018, the Arbitrator issued a Certificate of Determination finding that the worker continued to suffer from the effects of his right shoulder injury but that the left shoulder condition had resolved. He also found that the worker suffered a primary psychological injury pursuant to s 4 of the 1987 Act, to which employment with the respondent was the substantial contributing factor. The Arbitrator further found that the worker had current work capacity for suitable employment.
The worker appeals the Arbitrator’s Certificate of Determination. The appeal is limited to the Arbitrator’s findings on current work capacity.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

EVIDENCE

The issues in dispute concern the worker’s current work capacity for the period 26 July 2016 to date and continuing. The following evidence is relevant to the worker’s current work capacity.

The worker’s evidence of work capacity

In evidence are two statements prepared by the worker, dated 12 November 2017 and 20 August 2018. In his first statement, the worker stated that he wanted to return to work but felt that he could not “work in the same area as the persons who have bullied and harassed” him.
In his second statement, the worker referred to the report of Dr Smith dated 31 July 2018 (extracted below). The worker referred to the work restrictions Dr Smith recorded in his report and stated that those restrictions were appropriate for the shoulder injuries. However, the worker stated:
“I am not confident that I would be able to work full-time with those restrictions but if I were able to work I would be prepared to try. I do not have any experience performing work within the restrictions Dr Smith sets out.”
The worker provided a history of work as a painter, motor vehicle spray painter, and owning a motor vehicle repair business. He stated:
“In all of these employments I had to lift and/or carry weight significantly greater than 10 kg with my arms in all positions including outstretched and elevated. I cannot think of any job which I would be able to do by reason of training education or experience which has a lifting restriction of 5 kg - 10 kg (not repetitively) and with most of the work being done with my arms reasonably close in by my side.”

Medical evidence of work capacity

Treating general practitioners’ WorkCover NSW – certificates of capacity

From 28 June 2016 until 14 July 2016, Dr Nicholas Ioannides, general practitioner, issued several WorkCover NSW – certificates of capacity in respect of the worker’s left shoulder strain. Dr Ioannides certified the worker to have capacity for some type of employment from 28 June 2016 to 28 July 2016, with a lifting/carrying capacity of no more than 5 kg with both arms and pushing/pulling ability of no more than 5 kg. Dr Ioannides also recorded “[n]o overhead work. No excessive reaching. No sanding, no rattle gun use.”
The next available WorkCover NSW – certificate of capacity issued by Dr Ioannides is dated 10 August 2016. Dr Ioannides issued further WorkCover NSW – certificates of capacity in respect of the left shoulder strain between 10 August 2016 and 24 August 2016. Dr Ioannides certified the worker with capacity for some type of employment from 10 August 2016 to 31 August 2016, with a lifting/carrying capacity of no more than 10 kg to the waist with both arms, 5 kg above with the right arm and no more than 2 kg above head with the right arm. Dr Ioannides also recorded a pushing/pulling ability of no more than 5 kg.
From 1 September 2016 to 16 November 2016, Dr Ioannides issued further WorkCover NSW – certificates of capacity in respect of the left shoulder strain, certifying the worker to have capacity for work from 31 August 2016 to 28 September 2016, 12 October 2016 to 14 December 2016, but with variations on lifting/carrying capacity.
On 7 December 2016, Dr Ioannides issued a WorkCover NSW – certificate of capacity in respect of the left shoulder strain certifying the worker fit for a trial of pre-injury duties. Dr Ioannides issued further WorkCover NSW – certificates of capacity in similar terms on 21 December 2016 and on 4 January 2017 in respect of the left shoulder and adjustment disorder.
On 22 December 2016, Dr Hany Hanna, a treating general practitioner, issued a WorkCover NSW – certificate of capacity certifying the worker to have no current work capacity from 22 December 2016 to 22 January 2017 in respect of the injury to the right shoulder.
On 18 January 2017, Dr Ioannides diagnosed the worker as suffering from an adjustment disorder in addition to the left shoulder strain. On that same date, Dr Ioannides issued a WorkCover NSW – certificate of capacity certifying the worker fit for pre-injury duties.
On 23 January 2017, Dr Sushma Sharma, another treating general practitioner, issued a WorkCover NSW – certificate of capacity, in respect of the right shoulder and the psychological condition, certifying the worker to have no current work capacity from 23 January 2017 to 23 February 2017.
On 15 February 2017, Dr Ioannides issued a WorkCover NSW – certificate of capacity certifying the worker fit for pre-injury duties. He recorded the injury to be “left shoulder strain; adjustment disorder – added 18/1/17”. Dr Ioannides issued similar WorkCover NSW – certificates of capacity on 8 March 2017, 5 April 2017, 3 May 2017, 31 May 2017 and 29 June 2017.
From 20 February 2017 to 20 April 2017, Dr Hanna issued several further WorkCover NSW – certificates of capacity certifying the worker to have no work capacity from 23 February 2017 to 23 April 2017. On 20 February 2017, Dr Hanna issued a WorkCover NSW – certificate of capacity certifying the worker as having no current work capacity from 23 February 2017 to 23 March 2017, in respect of the right shoulder injury. On 20 March 2017, Dr Hanna certified the worker as having no current work capacity from 23 March 2017 to 23 April 2017, in respect of the diagnosis of major depression and right shoulder injury. Further medical certificates were issued in the same terms for the period up to 23 June 2017.
On 20 June 2017, Dr Hanna issued further WorkCover NSW – certificates of capacity certifying the worker to have no current capacity for employment from 23 June 2017 to 23 July 2017. Dr Hanna recorded the injury as “Injury R shoulder full [thickness] tear supraspinatus tendon R shoulder and [major] depression” and noted that the injury was related to work because the worker had been “washing sanding and painting…” Dr Hanna issued several similar medical certificates certifying the worker with no current work capacity from 23 July 2017 to 10 October 2017.
Dr Hanna issued several further medical certificates certifying the worker to have no current work capacity from 18 October 2017 to 17 August 2018 in respect of the diagnosis of major depression.

Dr Ioannides

In evidence are Dr Ioannides’ notes on examination of the worker. In response to questions raised by the insurer, in a document dated 9 February 2017, Dr Ioannides recorded “2x injuries, which limited his ability to work; he stated that there may be some workplace bullying”.
In response to further questions raised by the insurer, in a document dated 14 March 2017, Dr Ioannides recorded that the adjustment disorder was likely to be multifactorial and that the left and right shoulder injuries and the outcomes of their management were “likely to be impacting”. In respect of the left shoulder, Dr Ioannides recorded that the “symptoms have settled significantly. Ideally he should be at least trialling his [pre-injury duties] to see whether he is able to tolerate them.” He added, “I would expect the tendinosis and bursitis to have settled. The OA and degenerative changes wouldn’t have settled and may cause pain from time to time.”

Dr Thomas Newlyn

On 2 June 2017, Dr Thomas Newlyn, consultant family and child psychiatrist, issued a report at the request of the respondent. He recorded that the worker “did not meet criteria for the diagnosis of either Major Depressive Disorder or an Adjustment Disorder”. He found that the worker did not have a psychiatric disorder.

Concord General Repatriation Hospital

On 26 July 2017, Dr S Minto, from Concord General Repatriation Hospital issued a medical certificate following surgery on the worker’s right shoulder under the hand of Dr Sher. The certificate recorded that the worker was an inpatient of the hospital and would be unfit for work from 26 July 2017 until 26 September 2017.

Dr Doron Sher

On 29 January 2018, Dr Doron Sher, orthopaedic surgeon, issued a report in respect of the worker’s prognosis following surgery to the right shoulder on 25 July 2017. Dr Sher recorded that the worker’s prognosis remained very good but he would be “unlikely to return to repetitive strength overhead activities.”

Dr Hany Hanna

On 7 February 2018, Dr Hanna issued a report. Dr Hanna noted that the worker continues to complain of pain in both shoulders. Dr Hanna recorded that the complaint of pain is “[m]ore so on the right than the left” and that the worker has difficulty of movement. In terms of the worker’s “work fitness and employment”, he certified the worker “as unfit” and said “[i]t is my opinion that he will not be able to return to his previous duties. Long term employment should focus on light duties or administrative roles within his capacity provided his anxiety depressive state is controlled.”
In a report dated 9 February 2018, Dr Hanna recorded that given the chronicity of the worker’s psychiatric symptoms, his limited personal resources and his co-morbid physical condition, the worker’s “prognosis remains poor.”

Dr Thomas Oldtree Clark

In evidence is a report by Dr Thomas Oldtree Clark, consultant forensic psychiatrist qualified by the worker, dated 25 March 2018. Dr Clark diagnosed the worker with persistent depressive disorder, as a result of continual bullying and harassment in the workplace. In answer to a question “[w]hether it was reasonable in your opinion that our client has been totally incapacitated for work as a result of a psychological condition since 27 July 2016”, Dr Clark stated “This is the case. He has also had an operation on his shoulder.”
Dr Clark recorded that the worker had not reached maximum medical improvement. He also recorded that the worker would not likely be considered “permanently impaired until 9-18 months’ time, when the picture should be clearer about his future.”

Dr J C Beer

In evidence is a report by Dr Beer, orthopaedic surgeon qualified by the worker, dated 10 April 2018. In that report, Dr Beer recorded pain on attempting to lift weights above 4-5 kg at or above shoulder height. In relation to the left shoulder, Dr Beer found that the worker “can reach above shoulder height. Pain is less than before as he has not been working with the shoulders. He can manage weights of 7 kg but not repeatedly or weights above shoulder height repeatedly.”
Dr Beer found that the worker sustained a tear of the supraspinatus of the right rotator cuff and a degree of tendonitis in the rotator cuff tissues of the left shoulder. In response to a question about the right shoulder condition and periods when the worker had been “totally incapacitated” and “partially capacitated” for work, Dr Beer recorded:
“He would be totally incapacited for work from July 2016.
         He is not fit to resume his painting duties at work.
         I do not feel he is fit to resume these painting duties at Harbour City Ferries.
         He would need to carry out duties below shoulder height.
         He could not carry out repetitive heavy type work.
         …
After he improves following his exercises, I feel he may gradually be able to carry out painting duties such as tables and chairs, avoiding duties at or above shoulder height.”

Dr Ian Smith

On 31 July 2018, Dr Ian Smith, injury management consultant qualified by the respondent, issued a report in respect of the worker’s shoulders and psychological condition. In respect of the worker’s capacity, Dr Smith recorded that the worker:
“…cannot sustain loads in the outstretched or elevated position but is reasonably comfortable using his arms in close by side. In his right shoulder, he gets the occasional sharp pain.
He is able to lift 10 kg with each arm and he has done a series of repetitions, lifting 12 kg as part of his structured exercises.
The main issue are [sic] the ongoing mental health issues. Mr Berri is depressed and tearful and was extremely upset … He feels there is entrenched bullying and harassment in his workplace and that he cannot go back to that workplace.”
In respect of the worker’s psychological condition and the worker’s evidence, Dr Smith recorded that the worker did “not feel mentally well enough to return to Sydney Ferries or even work in a different job.” (emphasis added)
Dr Smith recorded that he discussed the worker’s condition with Dr Hanna, and that Dr Hanna “agrees that the shoulder do [sic] not preclude working full time with appropriate restrictions.” Dr Smith added that Dr Hanna:
“…feels the [worker’s] mental health symptoms are such that he would not be able to enter any workplace. He is happy to support a return to the pre-injury workplace but believes there are issues that need to be resolved if the [worker’s] assertions are correct to ensure that there is no bullying or harassment, either real or perceived, in the workplace.” (emphasis added)

Dr Smith also recorded that Dr Hanna was open to the worker returning in a “temporary role at Circular Quay but would only do so if [the worker] was agreeable.”
Dr Smith was in doubt that the worker would “ever become fully fit for his pre-injury duties from the physical perspective” because of his “limited capacity to sustainably use the arms in the outstretched or elevated position.” However, Dr Smith found that that did not preclude the worker from “working full time with a lifting restriction of 5 kg to 10 kg but not repetitively, with most of the work being done with his arms being reasonably close in by his side.”
In respect of the worker’s psychological condition, Dr Smith found that the worker has “depression and at the present time the severity is such that he would not be fit to work.” He added that, “[p]otentially, he could work at a different workplace once his mental health symptoms settle down but at the present time, based on his presentation, I do not believe he is fit to work” (emphasis added). Dr Smith’s opinions are critical in terms of the Arbitrator’s deliberations and will be considered later in this decision.

Professor William Cumming

On 21 August 2018, Professor William Cumming, orthopaedic surgeon, issued a report at the request of the respondent. In the history, Professor Cumming recorded that the worker stated that “on a physical basis he could certainly could [sic] try to return to work but that he would not return to the same workplace or to Sydney Ferries because of the problems of the bullying which he had outlined and provided to me in the written documentation.”
Professor Cumming recorded that the left shoulder was symptom free and that the condition of the left shoulder had resolved. He also recorded that the worker was fit to return to suitable duties:
“He is certainly fit, however, to return to work avoiding overhead heavy repetitive activities and he is fit to try this on a progressive basis as soon as it can be arranged ... he also confirms that he is away from work because of the non-physical aspects of his depressive state related to the workplace bullying.”

Radiological Investigations

The last recorded treatment of the worker’s left shoulder was in late August 2016 when the worker underwent treatment of the left shoulder with an ultrasound guided injection.

THE ARBITRATOR’S REASONS

The Arbitrator provided a detailed summary of the evidence, in respect of the issues in dispute. Having considered the lay and medical evidence, the Arbitrator analysed the issues in dispute.
The Arbitrator correctly identified that whether the worker’s symptoms in his right or left shoulder had resolved was a question of fact to be determined having regard to the evidence.[1] He observed that the medical opinion evidence supported that the worker was not fit for his pre-injury duties and could only return to suitable employment with lifting restrictions.
[1] Berri v Harbour City Ferries Pty Limited [2018] NSWWCC 239 (Reasons), [79].
In respect of the right shoulder, the Arbitrator referred to the evidence of Dr Beer and Professor Cumming that recorded that the worker would be unable to return to work that involved overhead repetitive activities with his right arm. He observed that these opinions were consistent with the evidence of Dr Sher, that the worker was unlikely to return to repeated overhead activities. On this basis, the Arbitrator was “comfortably satisfied that [the worker] continues to suffer from the effects of the right shoulder injury.”[2]
[2] Reasons, [81].
In respect of the left shoulder, the Arbitrator referred to the evidence of Dr Ioannides who diagnosed the worker to suffer from a “strain injury” and Dr Beer’s findings of tendinitis of the rotator cuff.[3] The Arbitrator observed that radiological investigations in August 2016 did not record any significant pathology. He also observed that the last record of treatment of the left shoulder was an ultrasound guided injection in August 2016, which was over two years before this consultation. The Arbitrator referred to evidence of Dr Ioannides dated 9 February 2017 and Professor Cumming dated August 2018 that indicated that the symptoms of the left shoulder had resolved. He observed that:
“Dr Smith’s comment that the applicant continued to experience symptoms in both shoulders appears to be based on what the applicant told him, as was the comment of Dr Hanna.”[4]
[3] Reasons, [82].
[4] Reasons, [85].
Having regard to the totality of the evidence, the Arbitrator found that the worker’s injury to left shoulder had resolved.[5]
[5] Reasons, [85].
The Arbitrator accepted that the events of bullying and harassment in the workplace were real events that the worker perceived as creating an offensive or hostile working environment. The Arbitrator found that the worker’s employment was a substantial contributing factor to receipt of the psychological injury and that there was no evidence to support the submission that the condition was wholly or predominantly caused by disciplinary action of the respondent. The Arbitrator found that the worker sustained a primary psychological injury.
The Arbitrator then considered the claim for weekly payments of compensation, in the context of the worker’s current work capacity. The Arbitrator observed that the evidence supported the fact that the worker was “not fit to return to pre-injury employment”.[6] He identified the relevant question for resolution to be whether the worker has “no current work capacity”. In this regard, the Arbitrator observed that “No current work capacity” exists when a worker is not able to return to work in either pre-injury employment or suitable employment.[7] The Arbitrator referred to the decisions in Giankos v SPC Ardmona Operations Limited[8] and Wollongong Nursing Home Pty Ltd v Dewar[9] in respect of what constitutes suitable employment.[10]
[6] Reasons, [118].
[7] Reasons, [119].
[8] [2011] VSCA 121.
[9] [2014] NSWWCCPD 55.
[10] Reasons, [120].
The Arbitrator found that the weight of the evidence was that the worker’s restriction for work was “due to psychological and not physical incapacity.”[11] He added that the worker’s left shoulder condition resolved but the right shoulder injury continued to cause the worker “pain and some incapacity for work flows from that.”
[11] Reasons, [121].
The Arbitrator did not accept Dr Beer’s opinion that the worker was “totally incapacitated” for work due to the physical injuries, on the basis that it was inconsistent with the weight of the medical evidence of Drs Hanna and Sher.[12] The certificates of capacity issued by Dr Hanna only referred to psychological issues and did not refer to physical restrictions.
[12] Reasons, [122].
The Arbitrator did not accept Dr Oldtree Clark’s opinion that the worker was “totally incapacitated for work” because the doctor had not provided an explanation for why the worker’s psychological injury was such that he could not work.[13]
[13] Reasons, [123].
The Arbitrator considered the evidence of Dr Smith and Dr Hanna regarding the worker’s current work capacity. The Arbitrator inferred from Dr Smith’s evidence that a fundamental barrier to the worker’s return to work was his perception that it was impossible for him to return to the workplace due to the allegations made by him about work practices.[14] He recorded that Dr Hanna agreed with Dr Smith on the worker’s current work capacity in respect of the physical injuries. The Arbitrator also recorded that Dr Hanna was “open to the applicant returning to a temporary role but only if the applicant was agreeable.”[15] The Arbitrator added that, although “Dr Hanna certified the applicant as having no capacity for work, I infer this is largely because the applicant is not desirous to return to employment.”[16]
[14] Reasons, [128].
[15] Reasons, [127]-[128].
[16] Reasons, [127].
The Arbitrator found that whether the worker “may perceive a return to the respondent’s workplace difficult is not a relevant consideration as to whether he may return to work in suitable employment” under s 32A of the 1987 Act.[17]
[17] Reasons, [129].
The Arbitrator considered the worker’s statement of evidence and his prior work experience, which mostly involved moderate physical activity. He said that the worker:
“is ‘prepared to try’ to work within the physical restrictions is consistent with capacity for some type of employment. It also indicates that the applicant’s mental state is not such that he would be unable to enter any workplace.” [18]
[18] Reasons, [130].
Having considered all of the evidence, the Arbitrator was not satisfied that the worker had “no current work capacity” and found the worker to have current work capacity for suitable employment.[19] The Arbitrator found:
“I find that the applicant is able to undertake suitable employment up to 15 to 20 hours per week. There is no evidence before me as to the amount the applicant may earn in suitable employment. The national minimum wage is $18.93 per hour. Taking the middle point (17.5 hours) point [sic], I find that the applicant is able to earn $331.27 per week in suitable employment.”[20]
[19] Reasons, [132]-[133].
[20] Reasons, [134].
On 5 October 2018, the Arbitrator issued a Certificate of Determination in the following terms:
“The Commission finds:
1.     The applicant continues to suffer from the effects of his right shoulder injury.
2.     The injury to the applicant’s left shoulder has resolved.
3. The applicant suffered a primary psychological injury under section 4 of the Workers Compensation Act 1987 (the 1987 Act).
4.     Employment with the respondent was a substantial contributing factor to the applicant’s psychological injury.
5.     The applicant has current work capacity for suitable employment.
The Commission determines:
1.     Award for the applicant on the allegation of primary psychological injury (deemed date of injury 27 July 2016).
2.     Award for the applicant on the claim for weekly benefits compensation. The respondent is to pay the applicant weekly benefits compensation as follows:
(a)For the period 27 July 2016 to 25 October 2016 under section 36 of the 1987 Act at a rate of $1,091.05;
(b)For the period 26 October 2016 to date and continuing under section 37 of the 1987 Act at a rate of $866.47.
A statement is attached setting out the Commission’s reasons for the determination.”
The appellant challenges the Arbitrator’s finding that the worker has current work capacity and the quantum of the award for weekly compensation based on that finding.

GROUNDS OF APPEAL

The worker appeals the Arbitrator’s determination on the following grounds:
(a)    Ground one: The Arbitrator erred when he failed to properly consider or misconceived the medical evidence or misdirected himself as to that evidence in determining that the worker had “some capacity for employment” and could earn $331.27 per week (Reasons [132], [134]) throughout the period 23 July 2017 to 26 September 2017 when in that period the evidence proved that the worker had “no work capacity”.
(b)    Ground two: The Arbitrator erred when he failed to properly consider or misconceived the medical evidence and the worker’s statements or misdirected himself as to that evidence when he determined that the worker had “some capacity for employment” and could earn $331.27 per week (Reasons [132], [134]) throughout the period 26 July 2016 to date and continuing when the accepted evidence proved that the worker had “no work capacity”.
(c)    Ground three: The Arbitrator erred when at (Reasons [85]) in finding that “the appellant’s injury to his left shoulder has resolved” he failed to properly consider the medical evidence and worker’s statements and give reasons as to whether the worker’s left shoulder condition contributed to his current work capacity from 26 July 2016 to an undetermined date in 2018 by which time it was found to have resolved.
(d)    Ground four: The Arbitrator erred when he:
(i)failed to make a finding of the date(s) of injury, in respect of the worker’s left and right upper extremities (shoulders) arising out of or in the course of employment with the respondent (Certificate of Determination dated 5 October 2018), and
(ii)in respect of the left shoulder did not make a finding of a specific date by which the left shoulder condition resolved.

SUBMISSIONS

Appellant’s submissions

Ground one

The appellant submits that there is evidence to support the worker had “no current work capacity” during the period 23 July 2017 to 26 September 2017, due to having been admitted to hospital on 25 July 2017 for right shoulder surgery on 26 July 2017 with a subsequent recovery period from that surgery. The appellant submits, amongst other things, that Dr Hanna certified the worker as having no current work capacity from 23 July 2017, in respect of the right shoulder and major depression.
The appellant submits that the Arbitrator referred to the right shoulder surgery but did not assess the incapacitating effect of that surgery and the medical evidence addressing no current work capacity. Dr Beer, in a report dated 10 April 2018, found that in relation to the right shoulder the worker had been “totally incapacitated for work from July 2016” to the date of his report.
The appellant refers to the medical certificates issued by Dr Hanna from 23 July 2017 certifying the worker to have no current work capacity to 23 August 2017. The appellant also refers to the medical certificate of Concord General Repatriation Hospital, issued by Dr S Minto dated 26 July 2017, certifying the worker unfit for work from 26 July 2017 until 26 September 2017. The appellant submits that this was of particular probative significance and confirms and adds weight to Dr Hanna’s certification of “no work capacity”.
The appellant also refers to Dr Oldtree Clark’s report dated 25 March 2018, which recorded that the worker had been “totally incapacitated for work” since 27 July 2016.
The appellant submits that the Arbitrator accepted that the worker’s right shoulder continues to cause him pain and some incapacity flows from that but:
“omitted to assess the combined effect of both left and right shoulder injuries for that time (26-7-2017 to 26-9-2017) in terms of incapacity. He also omitted to assess the combined effect on ‘capacity’ of the three injuries (left and right shoulders and psychological injury) as at that time.”

Ground two

The appellant refers to the worker’s statement, dated 20 August 2018, commenting on the report of Dr Smith dated 31 July 2018. The appellant extracts the following from the worker’s statement:
“I have read the report of Dr Ian Smith dated 31 July 2018. I note the work restrictions at page 6 of his report which Dr Smith believes are appropriate in relation to my shoulder injuries. I am not confident that I will be able to work full time with those restrictions but if I were able to work I would be prepared to try. I do not have any experience performing work within the restrictions Dr Smith sets out.” (emphasis added by the appellant)
The appellant submits that the Arbitrator misdirected himself by misconceiving the effect of the worker’s statement. In the context of the accepted psychiatric evidence supporting no current work capacity, the appellant submits it was not open to infer from or interpret the worker’s statement that he is “prepared to try” to be consistent with current work capacity for some type of employment. The appellant submits that the:
“…steps taken by the arbitrator in firstly finding that the appellant indicated in his statement that he had a physical capacity and secondly inferring that such capacity indicated that his psychological condition would not prevent him from working were errors and were not steps open to be taken on the evidence. That evidence is the medical evidence supporting total incapacity in respect of the psychological evidence and more so in respect of the additional left (now resolved) and right shoulder injuries.”
The appellant refers to the work history the worker sets out in his statement and the comment that the worker did not think there was any job which he would be able to do by reason of his training, education and experience within the restrictions set by Dr Smith.
The appellant submits that the medical evidence relied on in the submissions supporting ground one supports the fact that the worker had no current work capacity. In particular, the appellant relies on the evidence of Dr Oltdree Clark certifying the worker with “no capacity” due to psychological injury, and Dr Beer and Professor Cumming’s evidence of the worker having a “significant reduction in capacity as far as his physical injuries to the right and left shoulders.” The appellant also relies on the evidence from Dr Smith, in a report dated 31 July 2018, which found that the worker had pain in both shoulders above shoulder height activity and could not sustain loads in an outstretched or elevated position.
The appellant concedes that the Arbitrator did not accept the totality of the evidence of Dr Smith and Dr Hanna but submits their evidence “supported total incapacity in respect of the worker’s psychological injury as diagnosed by Dr Oldtree Clark”. In particular, the appellant submits that Dr Smith “opined that he was in doubt that the appellant would ever become fully fit for his pre-injury duties from a physical perspective.” However, Dr Smith found that the worker’s physical restrictions would not prevent him from working full-time with restrictions. In respect of the worker’s psychological condition, Dr Smith commented that the worker was depressed and would not be fit to work based on his presentation.
The appellant refers to Dr Hanna’s reports dated 7 February 2018 and 9 February 2018, where he recorded that the worker “will not be able to return to his previous duties. Long-term employment should focus on light duties or administrative roles within his capacity provided his anxiety depressive state is controlled.” The appellant then refers to several WorkCover medical certificates certifying that the worker:
“was totally incapacitated for work from 22-12-2016 to 22-1-2017 in respect of the right shoulder … and for right shoulder and depression from 23-1-2017 to 23-2-2017 … and for right shoulder from 23-2-2017 to 23-3-2017 … and for right shoulder and major depression from 23-3-2017 to 10-10-2017 and thereafter due to major depression from 18-9-2017 to 18-8-2018.” (emphasis added by the appellant)
The appellant further refers to Dr Hanna’s report dated 20 July 2017 stating that the worker had injured his left shoulder on 21 June 2016 and since then could not work because he developed major depression.
The appellant submits that the Arbitrator “erred when he inferred in the face of medical opinion evidence squarely to the contrary of that which he inferred as a tribunal of fact”. The Arbitrator inferred from Dr Smith’s report that the “fundamental barrier to the applicant returning to work is the perception that it is impossible for him to return to the respondent’s workplace due to the allegations made by him about work practices.” That inference, the appellant submits, was fairly open to the Arbitrator “but is not contrary to the appellant having ‘no capacity’ due to his psychological injury alone”. The Arbitrator went further and “inferred without sufficient evidence and contrary to the only said accepted medical evidence that Dr Hanna had been certifying the worker as having no capacity for work ‘largely because the applicant is not desirous to return to employment.’”

Ground three

The appellant submits that the worker’s left shoulder condition was found to have only resolved by an undetermined date in 2018. This was based on the reports of Dr Beer, dated 10 April 2018, and Professor Cumming, dated 21 August 2018. The appellant also submits that the left shoulder condition was in issue in terms of whether it had resolved and as to whether it contributed to the worker’s current work capacity.

The appellant further submits it was Professor Cumming’s opinion, in the report dated 21 August 2018, that the left shoulder condition had resolved. Dr Beer’s report, dated 10 April 2018, recorded that the worker’s left shoulder had a degree of tendonitis present in the rotator cuff tissues.
Assuming that the tendonitis as found by Dr Beer had resolved by the date of examination by Professor Cumming, the appellant submits that it would have been reasonable to determine that the left shoulder condition resolved on 21 August 2018 at the time of Professor Cumming’s examination and report.

Ground four

The appellant submits under ground four (i) and (ii) that “[t]hese grounds of appeal are self evident.” This ground is otherwise not further developed.

Respondent’s submissions

Ground one

The respondent concedes that the worker underwent surgery on 26 July 2017. It also concedes that there was a certificate from Concord General Repatriation Hospital certifying the worker unfit for work until 26 September 2017, due to symptoms in the right shoulder. Therefore, the respondent accepts that “during this two-month period, but this period only, the appellant was totally incapacitated for work.” Accordingly, the respondent concedes that the Arbitrator’s Certificate of Determination needs to be amended.

Ground two

The respondent submits that, outside of the July 2017 to September 2017 period, the Arbitrator did not err in finding that the worker was fit for suitable duties, and able to earn $331.28 (sic, $331.27) per week.
The respondent also submits that the worker is bound by its case at arbitration. The worker’s counsel submitted that the worker could earn in the range of $400 per week from a physical perspective, working at least 20 hours per week, earning $20 per hour. The respondent relies on the decisions in Brambles Industries Ltd v Bell,[21] Smits v Roach[22] and University of Wollongong v Metwally (No 2).[23] The respondent further submits that if the worker is totally incapacitated it could only be because of the psychological symptoms.
[21] [2010] NSWCA 162; 8 DDCR 111 (Bell).
[22] [2006] HCA 36; 228 ALR 262; 80 ALJR 1309 at [46] (Smits).
[23] [1985] HCA 28.
The respondent submits that the worker’s submissions on appeal largely attempt to re-agitate issues already addressed and determined during the arbitration proceedings, to the effect that the worker claims the medical evidence taken as a whole should equate to a finding of no current work capacity.
The respondent contends that the Arbitrator more than satisfied his task of engaging with the evidence and providing reasons why he accepted or rejected certain doctors’ opinions. There was no error in the application of law. The Arbitrator’s finding was open based on his analysis of the evidence and submissions.
The respondent provided detailed submissions in response to the appellant’s submissions that the Arbitrator failed to properly appreciate the worker’s statement. The respondent submits that the worker’s statement must be read as a whole and the proper context is that the worker was not confident he would be able to meet the restrictions offered by Dr Smith, but if it is established he was able to, he would be prepared to try. The respondent submits that there is a material and important difference between a worker not being ‘confident’ they could return to work and believing they are unable to. The respondent adds that there was no error in the Arbitrator finding that the worker was “willing to try” to return to work and the Arbitrator’s acceptance of this was further evidence the worker was capable of some suitable employment.
The respondent submits that the Arbitrator did not err when inferring the worker believed he had psychological capacity to try suitable employment. The Arbitrator drew a correct and permissible inference from the worker’s statement dated 20 August 2018, and other material admitted in the proceedings. In this regard, the respondent notes:
(a)    The worker stated, in his statement dated 12 November 2017, that he wanted to return to work, but he felt he could not work in the same area as the people who had previously allegedly bullied him.
(b)    The worker similarly stated, in his statement dated 20 August 2018, that he would be prepared to try a return to work.
(c)    The worker, in his statement dated 20 August 2018, did not refute Dr Smith’s assertion that he might be capable of returning to work at another location, but did not want to do so. The worker did not dispute Dr Smith’s comments that Dr Hanna was issuing certificates of capacity largely because the worker did not want to return to work at a different location.
(d)    The worker reported to Professor Cumming on 21 August 2018 that he considered himself physically fit to attempt a return to work but that he would not do so at the same location.
The Arbitrator was open to draw the finding that the worker believed he was psychologically fit for a return to work but did not wish to do so. The appellant has not demonstrated any error of fact or law.
The respondent submits that the worker should not be permitted to simply re-argue the medical evidence indicating “total incapacity”. The respondent submits:
(a)    The Arbitrator accepted its submission that the opinion of Dr Oldtree Clark, at least with respect to current work capacity, was essentially a bare ipse dixit and should not be accepted.[24]
(b)    The Arbitrator specifically considered and rejected Dr Beer’s comment that the worker was totally incapacitated. That was the correct finding in light of the assessment by Dr Beer that noted the worker had improvement since surgery to the right shoulder and a “good response” and that he only needed to restrict his activities.
(c)    In a report dated 21 August 2018, Professor Cumming noted the left shoulder was symptom free and that he had current work capacity.
(d)    The Arbitrator adequately summarised Dr Smith’s report, which noted that the worker was fit for a return to work, and while the worker “felt” he was psychologically unable, that was ultimately not the view shared by Dr Smith.
(e)    As the respondent submitted at arbitration, Dr Hanna’s certificates of capacity were inconsistent with the balance of medical evidence and Dr Hanna’s own reports. In his two reports, dated 7 February 2018 and 9 February 2018, it was recorded that long term employment should focus on light duties or administrative roles demonstrating the worker was “not totally incapacitated for work.”
(f)    The report of Dr Oldtree Clark, in respect of diagnosis and the finding that an injury was sustained, was accepted by the Arbitrator. However, the Arbitrator specifically considered and rejected Dr Oldtree Clark’s opinion on current work capacity and gave adequate reasons for doing so.
[24] Citing Reasons, [123].
The Arbitrator properly considered the evidence available and discharged his obligation of providing adequate reasons why he preferred some evidence over other. Any inferences he drew were clearly open to him on the balance of the available evidence.
The Arbitrator found the worker could only earn $331.27 per week, which is to be contrasted with the worker’s pre-injury average weekly earnings which the parties conceded were over $1,400 gpw. That finding was open on the evidence.

Ground three

The respondent submits that the appellant’s submissions are unsustainable, in circumstances where the appellant conceded at arbitration that he was fit for at least 20 hours a week of work from a physical perspective.
The worker was certified fit for pre-injury duties. It is inconsistent for the worker to argue the Arbitrator erred when finding he was capable of suitable duties because of an error about the left shoulder resolving. The worker’s own evidence did not establish no current work capacity due to the left shoulder beyond December 2016.
The respondent submits, it cannot have been an error for the Arbitrator not to determine a precise date when the left shoulder condition resolved, in the circumstances where the parties did not ask for any specific date.[25]
[25] Citing, Bell.

Ground four

In respect of ground 4(i) the respondent submits the Arbitrator did not err in failing to give a date of injury regarding the left and right upper extremity. In this regard, the respondent relies on the transcript of proceedings before the Arbitrator where the nature of injury, allegations of the mechanisms of injury and dates of injury were clarified by the Arbitrator with the appellant’s counsel.[26] The respondent submits that the appellant’s counsel was invited to comment on any further issues and did not do so.
[26] Citing, Transcript of Proceedings (T), Berri v Harbour City Ferries Pty Limited (WCC, [2018] NSWWCC 239, Arbitrator Read, 7 September 2018), 1.35-2.31.
In respect of ground 4(ii), the respondent submits that this is a re-statement of the complaints under ground three. The respondent relies on its submissions under ground three.

PRINCIPLES ON APPEAL

The principles to be applied on appeal are found in s 352(5) of the 1998 Act, which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
It is therefore necessary for the appellant to demonstrate error in the relevant sense (that is of fact, law or discretion) before the Commission can intervene to disturb the Arbitrator’s decision.
The power to disturb a finding of fact and the application of s 352(5) of the 1998 Act was considered by the Commission in Raulston v Toll Pty Ltd.[27] In Raulston, Roche DP stated the following principles regarding a s 352(5) appeal:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 [Whiteley Muir] cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227 are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)     An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”[28]
[27] [2011] NSWWCCPD 25; 10 DDCR 156 per Roche DP (Raulston).
[28] Raulston, [19]–[20].
The principles stated in Whiteley Muir have been consistently applied in the Commission.[29]
[29] Bonica v Piacentini & Son Pty Ltd [2019] NSWWCCPD 4; Fairfield City Council v Deguara [2019] NSWWCCPD 1; Reln (Manufacturing) Pty Ltd v Smith [2018] NSWWCCPD 51; Bekkers v State of New South Wales [2018] NSWWCCPD 46; State Super Financial Services Australia Limited v McCoy [2018] NSWWCCPD 26.
The appeal also concerns the Arbitrator’s assessment of the worker’s “current work capacity” for the purposes of an entitlement to weekly compensation under subdiv 2 of Pt 3 of the 1987 Act. “Current work capacity” is defined in s 32A of the 1987 Act as “a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment”. “No current work capacity” is defined in s 32A of the 1987 Act as “a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment”.
Section 32A of the 1987 Act defines “suitable employment” as follows:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”

DISCUSSION

Ground One

This ground is limited to the period between 23 July 2017 and 26 September 2017. The appellant sets out detailed reasons as to why the worker should have been found to have “no current work capacity” for suitable employment during this period. The appellant relies on the Concord General Repatriation Hospital medical certificate dated 26 July 2017 and the medical certificates of Dr Hanna from 23 July 2017 certifying the worker to have no current work capacity during this period. Whilst the appellant’s submissions on ground one go beyond the period ending 26 September 2017, ground one in its terms is limited to the period 23 July 2017 and 26 September 2017, and therefore will be so limited.
The respondent properly concedes that the worker was totally incapacitated for work during the period 26 July 2017 and 26 September 2017, as a result of the surgery to the right shoulder. However, outside that period, the respondent submits the Arbitrator did not err in finding the worker was fit for suitable duties earning $331.27 per week.
The Arbitrator considered the application of s 32A of the 1987 Act and the definition of suitable employment, in the context of the worker’s current work capacity. The Arbitrator recorded that almost a year after ceasing work, the worker underwent surgery on his right shoulder on 25 July 2017 at the hand of Dr Sher.[30] However, in his examination of the available evidence on the worker’s capacity to earn in suitable employment he failed to have regard to the Concord General Repatriation Hospital medical certificate dated 26 July 2017, which records that the worker was an inpatient and certifies the worker to be unfit for work from 26 July 2017 to 26 September 2017. The failure to consider that evidence was an error.[31] The hospital certificate is clearly a material fact that the Arbitrator overlooked, although in fairness to the Arbitrator, this evidence was not subject to any submission in terms of what is now advanced in ground one on appeal.
[30] Reasons, [26], [49].
[31] Whiteley Muir.
Dr Hanna’s medical certificates dated 20 July 2017 and 4 August 2017 and Dr Sharma’s medical certificate dated 12 September 2017 are consistent with the hospital records, certifying the worker to have no current work capacity from 26 July 2017 to 26 September 2017. Although, I note that Dr Hanna’s medical certificate dated 20 July 2017, certifying the worker to have no current work capacity for the period 23 July 2017 to 23 August 2017, was issued prior to the worker’s surgery on the right shoulder.
Having regard to that evidence, it is clear that the worker had no current work capacity for the period 26 July 2017 until 26 September 2017. The Arbitrator’s factual finding to the contrary was wrong and an error of the kind discussed in Whiteley Muir.
It follows that the Arbitrator’s finding that the worker had current work capacity must be revoked, in so far as it concerns the period 26 July 2017 to 26 September 2017.
The remaining issue to be resolved under this ground concerns the period between 23 July 2017 and 25 July 2017. The appellant submits that the Arbitrator erred in finding that the worker had current work capacity for this period, against the weight of the medical evidence. As this period in dispute falls within the period in dispute under ground two, I propose to deal with this disputed period under that ground of appeal.

Ground Two

The appellant submits that the Arbitrator erred in finding that the worker was a worker with “some” current work capacity, from 27 July 2016 to date and continuing. The appellant concedes that the Arbitrator did not accept the totality of the evidence that supported “no current work capacity” in respect of the worker’s psychological injury. However, in support of its submissions, the appellant relies on the evidence of Dr Smith and Dr Hanna which recorded that the worker would not be able to return to his pre-injury duties. The appellant also relies on the evidence of Dr Oldtree Clark which recorded that the worker had no current work capacity due to the psychological injury. The appellant further relies on the evidence of Dr Beer and Professor Cumming that recorded the worker had a significant reduction in capacity in respect of his physical injuries to the right and left shoulders.
With respect to the medical evidence, the appellant’s real complaint is that the Arbitrator’s factual findings regarding the medical evidence were “misconceived”, namely, that the medical opinions all indicated that the worker had no current work capacity. Therefore, the appellant submits it was not open to the Arbitrator to find that the worker had “some” current work capacity.[32]
[32] Reasons, [132].
With respect to the lay evidence, the appellant’s main complaint is the Arbitrator’s interpretation of the worker’s evidence. In particular, the interpretation of the worker’s statement dated 31 July 2018 commenting on Dr Smith’s assessment that the worker could return to work with restrictions. The particular extract from the worker’s statement is as follows:
“I am not confident that I would be able to work full-time with those restrictions but if I were able to work I would be prepared to try. I do not have any experience performing work within the restrictions Dr Smith sets out.” (emphasis added)
The Arbitrator considered the evidence regarding the worker’s current work capacity. The Arbitrator then correctly identified the issue for determination was whether the worker had “no current work capacity”, which exists when a worker is not able to return to work in either the worker’s pre-injury employment or in suitable employment as defined in s 32A of the 1987 Act. In determining that question, the Arbitrator provided reasons as to why he did not accept some of the worker’s medical evidence and why he was not satisfied the worker had “no current work capacity”.

The Arbitrator observed that the weight of the evidence demonstrated that the worker’s restriction for work was due to the psychological injury and not the physical injury.[33] The Arbitrator found that a fundamental barrier to the worker’s return to work was his perception that it was impossible to return to the workplace due to the allegations made by him about the work practices. The Arbitrator made this finding, having regard to the evidence of Dr Smith (and Dr Smith’s record of conversation with Dr Hanna) regarding the worker’s current work capacity. That is, the evidence recorded in Dr Smith’s report dated 31 July 2018, that it was impossible for the worker to return to the respondent due to the allegations of bullying and harassment and that the worker was fit to return to the workplace in a temporary role “if the applicant was agreeable.”
[33] Reasons, [121].
On the background of the Arbitrator’s finding regarding the worker’s perception, the Arbitrator then turned his mind to the worker’s further statement dated 20 August 2018. The Arbitrator referred to the worker’s comment that he doubted he could work within the restrictions set by Dr Smith but that he would be “prepared to try”. The Arbitrator inferred from that comment that the worker had “capacity for some type of employment” and that the worker’s “mental state is not such that he would be unable to enter any workplace.”[34] He found that the worker had current work capacity for suitable employment.[35]
[34] Reasons, [130].
[35] Reasons, [133].
For the reasons discussed below, in the context of the medical evidence supporting the worker to have no current work capacity, it was not open to infer from the worker’s comment that his preparedness to “try” was consistent with capacity for some type of employment.
It is clear from the worker’s evidence that he felt that he could not return to work at the respondent’s premises due to what he alleged to be systematic bullying and harassment. But the worker, both in his statement and in various statements made to the doctors, indicated a preparedness to consider other work.
However, in drawing the disputed inference the Arbitrator overlooked Dr Smith’s ultimate conclusion, in his report dated 31 July 2018, regarding the worker’s current work capacity in respect of the psychological injury. Dr Smith recorded that: “[p]otentially, he could work at a different workplace once his mental health symptoms settle down but at the present time, based on his presentation, I do not believe he is fit to work” (emphasis added). While Dr Smith made observations about the worker’s preparedness to return to work, having discussed the worker’s condition with Dr Hanna, his ultimate conclusion was that the worker was not “fit to work” at the present time. The Arbitrator did not consider Dr Smith’s ultimate conclusion in determining the issue of current work capacity and did not provide reasons for rejecting that opinion. It was material evidence which the Arbitrator should have taken into account in deciding the ultimate question on current work capacity and the inference to be drawn. The Arbitrator’s failure to consider that material was an error of the kind discussed in Whiteley Muir.
Further, the Arbitrator has overlooked or given too little weight to the evidence of Dr Hanna. The Arbitrator recorded that Dr Hanna certified the worker as having no current work capacity. However, he failed to take into account and analyse Dr Hanna’s evidence, in his report dated 7 February 2018, that “[l]ong term employment should focus on light duties or administrative roles within his capacity provided his anxiety depressive state is controlled” (emphasis added). That evidence is inconsistent with the inference the Arbitrator drew on capacity. The Arbitrator erred in failing to take into account this evidence and according no, or too little, weight to that evidence in deciding the inference to be drawn on the worker’s current work capacity.[36] I am satisfied that the Arbitrator has also fallen into error by failing to analyse that evidence.
[36] Whiteley Muir.
The Arbitrator’s reasoning process and ultimate determination, on the issue of current work capacity and the quantification of the worker’s entitlement to weekly compensation in the disputed period, was infected by these errors. It follows that the Arbitrator’s decision on the worker’s current work capacity must be revoked.
The medical evidence provides for various periods of differing levels of capacity. In particular, the contemporaneous evidence of the worker’s treating general practitioners provides for various periods of differing levels of capacity. Some periods in which the worker has been certified to have no current work capacity overlap with periods in which the worker has been certified to have current work capacity, with restrictions. While the parties have provided some submissions on the medical evidence, the parties have not addressed this issue on appeal to the requisite detail needed and should be provided with an opportunity to do so. Further, the re-determination of this matter requires a consideration of all of the material facts and an assessment of the weight to be afforded to that evidence. In the circumstances, the appropriate course is that the matter regarding the worker’s current work capacity be remitted, pursuant to s 352(7) of the 1998 Act, to another Arbitrator for re-determination.
To the extent that the appellant conceded that the worker had current work capacity for suitable employment for at least 20 hours per week, I note that that concession is made in respect of the worker’s physical impairments and not the worker’s psychological impairment.
It follows that the Arbitrator’s finding at [5], that the worker has current work capacity for suitable employment, and order [2], regarding the quantification of the worker’s entitlement to weekly compensation, set out in the Certificate of Determination dated 5 October 2018 must be revoked.
There was much debate by the appellant about how the Arbitrator construed the worker’s second statement in this appeal. In light of the findings that I have reached it is not necessary to resolve this argument any further. However, I observe that the construction of the worker’s statement by the Arbitrator was an available construction, simply based on a consideration of the statement itself. The error under this ground arose in attempting to support this construction by an erroneous consideration of the medical opinions of Drs Smith and Hanna.

Ground Three

The appellant submits that the Arbitrator ought to have determined a precise date at which point the worker’s left shoulder condition had resolved. The appellant also alleges that the Arbitrator failed to consider whether the left shoulder condition contributed to the worker’s current work capacity from 26 July 2016 to an undetermined date in 2018 by which time it was found to have resolved.
In determining the worker’s current work capacity, as defined in s 32A of the 1987 Act, it was necessary for the Arbitrator to identify whether and, if so, when the left shoulder condition resolved. That is because in assessing the worker’s current work capacity for suitable employment the Arbitrator was required to determine whether, and to what extent, the left shoulder condition contributed to the worker’s current work capacity. This necessitated a finding of when the left shoulder condition resolved. The Arbitrator’s failure to find when the left shoulder condition resolved was an error. It follows that Paragraph [2] of the Certificate of Determination dated 5 October 2018 must be revoked.
In view of my findings under ground two, and as this issue may become relevant in re-determining the quantification of the worker’s entitlement to weekly compensation, it is appropriate that the Arbitrator on remitter determine the question of whether and when the left shoulder condition resolved.

Ground Four (i)

The appellant submits that the Arbitrator failed to make a finding of the dates of injury with respect to the worker’s left and right shoulders. The appellant under this ground merely submits “[t]hese grounds of appeal are self evident”. I have not been taken to any authority to support this submission or any submission that would suggest such a finding would change the outcome.
At the commencement of the hearing on 7 September 2018, counsel for the appellant, by consent, amended the dates of injury pleaded. The pleadings were amended to record the deemed date of injury to the right shoulder, consequential condition to the left shoulder and psychological injury as 27 July 2016.[37] In the proceedings before the Arbitrator, the parties did not provide submissions on any other relevant date of injury.
[37] T2.5.
In his reasons, the Arbitrator confirmed the amendment to the pleadings:
“At the commencement of the proceedings Mr Hickey made an application to amend the date of injury to a deemed date of 27 July 2016. This is the date the applicant last worked, and the date of the first alleged incapacity. I granted leave to make the amendment.”[38]
[38] Reasons, [11].
It is well accepted that a party is generally bound by the conduct of his or her counsel.[39] The Arbitrator determined the matter on the basis of the pleaded deemed date of injury and this was consistent with how the case was run. The appellant does not submit on appeal that the case was run on a different basis. The appellant cannot now attempt to re-agitate matters in a manner that is not consistent with the conduct of the case at first instance.
[39] Smits, [46]; University of Wollongong v Metwally(No 2) [1985] HCA 28; 59 ALJR 481, [7] 483.
It follows that this ground of appeal is not made out.

Ground Four (ii)

This appeal ground restates that which is contained in ground three. For the reasons discussed under ground three, the Arbitrator erred in not finding the precise date in which the left shoulder condition resolved. The question of whether and when the left shoulder condition resolved is to be determined on remitter.

CONCLUSION

For the reasons stated above, I have concluded that the Arbitrator erred in overlooking critical evidence regarding the worker’s current work capacity. A determination of the worker’s current work capacity depends on an assessment of the medical evidence overlooked and reconciling the inconsistences in the contemporaneous medical evidence. The parties have not addressed that issue and the parties should be given an opportunity to do so. Therefore, that issue and the quantum of the worker’s entitlement to weekly compensation for the remaining disputed period must be re-determined before a different Arbitrator.

ORDERS

Paragraphs [2] and [5] and Order [2] of the Certificate of Determination dated 5 October 2018 are revoked, otherwise the Certificate of Determination is confirmed.
The matter is remitted to a different Arbitrator for re-determination of the outstanding issues, consistent with these reasons.

Judge Phillips

PRESIDENT

15 March 2019