Boral Recycling Pty Ltd v Figueira - [2014] NSWWCCPD 41

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41
APPELLANT:	Boral Recycling Pty Ltd
RESPONDENT:	Angelia Figueira
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-4577/13
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	10 March 2014
DATE OF APPEAL DECISION:	4 July 2014
SUBJECT MATTER OF DECISION:	Finding of no current work capacity; weight of evidence; relevance of worker’s applications for full-time employment; assessment of medical evidence; s 32A of the Workers Compensation Act 1987; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; alleged failure to give reasons
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Astridge & Murray
Respondent:	Steve Masselos & Co
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 10 March 2014 is confirmed. 2. No order as to costs.

INTRODUCTION

This appeal concerns an employer’s challenge to an Arbitrator’s finding that the worker had no current work capacity between 1 March 2013 and 30 June 2013 and that her work capacity beyond that date was 21 hours per week. Essentially, it involves a challenge to the weight the Arbitrator gave to evidence that the worker had made numerous job applications in a period when the Arbitrator found, consistent with medical certificates from the treating general practitioner, that the worker had no current work capacity.

BACKGROUND

The respondent worker, Angelia Figueira, worked for the appellant employer, Boral Recycling Pty Ltd (Boral), as a personal assistant from January 2010 until she was made redundant on 28 February 2013, having stopped work, because of her injury, on 8 December 2012. She had previously worked for one of Boral’s related companies between 2003 and 2010.
Ms Figueira alleged that she suffered a psychological injury as a result of having been harassed, criticised and victimised by her managers and work colleagues from August 2010 until February 2012. The reference to February 2012 was clearly an error and, though the pleadings do not appear to have been amended, the case proceeded on the basis that the correct date was February 2013.
By letter dated 31 October 2012, Ms Figueira notified Boral’s insurer, QBE Workers Compensation (NSW) Ltd (QBE), of her claim for compensation and gave a date of injury of 8 October 2012. QBE disputed liability for the claim.
In an Application to Resolve a Dispute (the Application) filed with the Commission on 26 March 2013, Ms Figueira claimed weekly compensation from 15 October 2012 to 26 October 2012 and from 6 December 2012 (later amended to 9 December) to date and continuing, together with a general order for the payment of hospital and medical expenses, as a result of her psychiatric injury.
At the arbitration, Boral disputed injury, whether employment was the main contributing factor to any disease injury, whether the injury had been wholly or predominantly caused by reasonable action with respect to performance appraisal, incapacity, entitlement to hospital and medical expenses, and the Commission’s jurisdiction to determine a claim for weekly compensation in accordance with the Workers Compensation Act 1987 (the 1987 Act) as amended by the Workers Compensation Legislation Amendment Act 2012.
In respect of the claim for weekly compensation beyond 1 March 2013, Boral had argued that, as Ms Figueira had made numerous applications for full-time employment between March and July 2013 in work similar to her pre-injury employment with Boral, she had no incapacity from that time.
In a detailed and impressive decision, the Arbitrator found against Boral on all issues. He found that Ms Figueira suffered from a Major Depressive Disorder and/or Adjustment Disorder, a disease, which she contracted in the course of her employment and to which her employment was the main contributing factor. Dealing with the period from 1 March 2013, the Arbitrator said that Ms Figueira’s job applications did not “necessarily mean” ([163]) that she considered herself fit for that work.
The Arbitrator found, relying on evidence from Ms Figueira’s general practitioner, Dr Gunawardena, and other evidence, that Ms Figueira had no current work capacity from 15 October 2012 to 26 October 2012 and from 9 December 2012 to 30 June 2013. He found that, from 1 July 2013, she was fit to work in suitable employment for 21 hours per week earning $630.
Consistent with the Arbitrator’s reasons, the Commission issued a Certificate of Determination on 10 March 2014 in the following terms:
“The Commission determines:
1.     The applicant sustained a psychological injury arising out of or in the course of her employment from August 2010 to 28 February 2013.
2.The applicant’s employment was the main contributing factor to her psychological injury.
3.The applicant had no current work capacity from 15 October 2012 to 26 October 2012 and from 9 December 2012 to 30 June 2013.
4.     Since 1 July 2013, the applicant has been fit for suitable employment.
5.The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to performance appraisal.
The Commission orders:
6.     The respondent to pay the applicant:
(a) $1,361.35 per week from 15 October 2012 to 26 October 2012 and from 9 December 2012 to 25 February 2013 pursuant to section 36(1) of the Workers Compensation Act 1987;
(b) $1,146.40 per week from 26 February 2013 to 30 June 2013 pursuant to section 37(1) of the Workers Compensation Act 1987, and
(c) $516.40 per week from 1 July 2013 to date and continuing pursuant to section 37(3) of the Workers Compensation Act 1987.
7.The respondent to pay the applicant’s reasonably necessary medical expenses pursuant to section 60 of the Workers Compensation Act 1987.
8.No order as to costs in accordance with section 341(2) of the Workplace Injury Management and Workers Compensation Act 1998.”
Boral has appealed, but has only challenged the Arbitrator’s award of weekly compensation from 1 March 2013. For the reasons explained below, the appeal is unsuccessful.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) determining that the job applications Ms Figueira made from March 2013 did not necessarily mean that she considered she was fit to perform the jobs for which she applied and in giving insufficient weight to those applications, and
(b) relying on the certificates of capacity from Ms Figueira’s general practitioner, Dr Gunawardena, as being a satisfactory basis on which to determine her capacity for work and in placing undue weight on the certification of work capacity in those certificates.

SUBMISSIONS

Though experienced counsel appeared for Boral at the arbitration, its solicitor, Thomas Murray, has prepared the submissions on appeal.
Mr Murray submitted that the Arbitrator’s finding at [163] (that Ms Figueria’s job applications did not necessarily mean that she considered herself fit for that work) appeared to be based on the history recorded by Dr Roberts, the psychiatrist qualified by QBE, in his report of 25 November 2013 that Ms Figueira would need to discuss with her doctor if she were offered a full-time position. Mr Murray contended that that history did not indicate Ms Figueira’s view regarding her capacity for work, but merely said that she would consult with her doctor if a full-time position were offered. It did not suggest that Ms Figueira’s job applications were not for the sole purpose of obtaining the roles for which she applied or that she did not consider herself able to work in those positions.
Mr Murray said that Ms Figueira did not rely on any direct evidence that her job applications were not bona fide. The job applications were a “clear concession regarding [Ms Figueira’s] own view of her fitness for that work”. Her counsel, Stephen Hickey, made no submission to the contrary at the arbitration, but merely said that fitness for work was a medical question. Nor did Mr Hickey submit that Ms Figueira did not believe she was fit to work in the roles for which she applied. Mr Murray said that one would have expected an application to lead evidence from Ms Figueira, if she disputed the submissions by Boral’s counsel, Mr Saul, (at T54.10) to the effect that her job applications meant that she felt she was fit for the positions for which she applied.
Mr Murray contended that the Arbitrator should have found that the making of the job applications was “a representation of [Ms Figueira’s] view, opinion and belief on her fitness for work”, as was urged by Mr Saul at the arbitration. He said they should have been afforded “appropriate weight”, which did not occur, thereby constituting error. Mr Murray relied on the observation in Jackson v Cement Australia (Kandos) Ltd [2012] NSWWCCPD 67 at [45] (Jackson) that the worker’s efforts to obtain work as a receptionist “strongly suggested” that it was not her view that, despite her injury, such work was beyond her. He said that that case “demonstrate[d] how the Arbitrator should have approached and considered the making of the job applications in the present matter”: that is, the making of applications for a certain role “strongly suggests” that Ms Figueira’s view was that the roles for which she applied were not beyond her due to the effects of the injury. This failed to occur.
Mr Murray added that Ms Figueira’s job applications represented a “systematic and concerted effort” by her to secure employment within her fitness, abilities and skills. The list of applications was said to be “compelling” and was not, according to Mr Murray, afforded appropriate consideration by the Arbitrator. In the absence of direct evidence, Mr Murray submitted that it was not open to the Arbitrator to find that Ms Figueira’s job applications did not necessarily mean that she considered herself fit for those jobs. He said it was instructive that the roles for which Ms Figueira applied were similar, or identical, to her pre-injury role, which meant that she “knew full well the type of work she would be expected to perform in those roles and made the applications regardless”.
Dealing with Dr Gunawardena’s certificates, Mr Murray submitted that, in making his determination as to Ms Figueira’s work capacity from 1 March 2013, the Arbitrator has “been informed and guided entirely by the opinion and certification made by” Dr Gunawardena in the numerous certificates in evidence. Though the Arbitrator referred to accepting this evidence “on a background” of the views of Mr Jupp, the treating psychologist, and Dr Henson, the treating psychiatrist, it did not appear that the Arbitrator placed any reliance on “such opinions on this issue”.
Mr Murray argued that the Arbitrator should have placed little, if any, weight on Dr Gunawardena’s certificates because there is no evidence that the doctor was aware that Ms Figueira was applying for positions similar to her pre-injury role. This deficiency in the doctor’s opinion has not been “squarely addressed” by the Arbitrator. In these circumstances, the Arbitrator should have accepted the submissions by Mr Saul regarding the effect of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita). In fact, the Arbitrator did not “properly engage” with that submission.
The Arbitrator’s reliance on Dr Gunawardena’s certificates was “all the more erroneous”, Mr Murray asserted, when the Arbitrator had earlier (at [133]) been critical of Dr Gunawardena’s opinion on causation on the ground that the doctor had not provided detailed reasons for his opinion. The Arbitrator should have made the same finding, according to Mr Murray, about the doctor’s opinion on Ms Figueira’s fitness for work.
Mr Murray submitted that the Arbitrator erred in accepting Dr Gunawardena’s opinion on Ms Figueira’s fitness for work. He argued that that opinion was “flawed” because the doctor was not aware that Ms Figueira had been job seeking and the doctor failed to explain the basis of his opinion.
Mr Murray further complained that the Arbitrator said (at [205]) that, in addition to the certificates from Dr Gunawardena, he had regard to Ms Figueira’s age, education, skills, work experience and “the other matters in the definition” of suitable employment in s 32A of the 1987 Act in determining that Ms Figueira was not fit for suitable employment prior to 30 June 2013. However, he contended that the Arbitrator did not make clear what use he made of the “other matters” or whether Ms Figueira’s age, skills, education and work experience were “actually taken into account as no reasons” were provided. Mr Murray contended that the Arbitrator’s findings regarding Ms Figueira’s entitlement to weekly compensation were based “purely” on Dr Gunawardena’s medical certificates.
Mr Hickey submitted that the Arbitrator had before him compelling sequential medical certificates and reports from Dr Gunawardena as to Ms Figueira’s lack of capacity for work at the end of 2012 and throughout 2013 due to her psychological injury. Mr Hickey also referred to evidence of Ms Figueira’s unfitness from Mr Jupp, and her qualified psychiatrist, Dr Canaris. He contended that the Arbitrator properly considered Ms Figueira’s job applications and, in the context of her history of her ongoing condition and the medical evidence, correctly found that she had no work capacity until 1 July 2013 and a capacity of only 21 hours per week thereafter. He also referred to Dr Canaris’s history that Ms Figueira had been to a couple of interviews but got very teary eyed and couldn’t do it because she was afraid the same thing would happen.
In submissions in reply, Mr Murray said that the Arbitrator did not base his decision on the opinions of Mr Jupp and Dr Canaris with respect to Ms Figueira’s capacity for work and did not say that he Dr Canaris’s history was relied upon in support of his conclusion that the job applications did not necessarily mean Ms Figueira was fit for that work.
Mr Murray contended that Dr Canaris’s history would not be consistent with Dr Roberts’ history that Ms Figueira would have accepted a part-time position if one were offered, which clearly supported an acceptance on the part of Ms Figueira that she considered herself fit to work the jobs for which she was applying (at least for a part-time position) and that it was only a full-time position that she would need to speak to her doctor about.

DISCUSSION AND FINDINGS

I do not accept Mr Murray’s submissions.
The first challenge relates to the Arbitrator’s findings at [163] and [203]–[206], where he said:
“163.The fact that the applicant applied for numerous fulltime positions does not necessarily mean that she considered that she was fit for that work[.] Indeed, her discussions with Mr Tasker regarding her reduced work hours shows that she was reliant on her doctor’s opinion regarding her fitness for fulltime work and at the time that she was applying for work, Dr Gunawardena indicated that she had no current work capacity. Further, she informed Dr Roberts that she would have accepted a part time position, but she would need to discuss any fulltime position with her doctor.
…
203.According to the certificates of Dr Gunawardena, the applicant was totally incapacitated prior to 20 January 2013 and the applicant had no current work capacity from then until 30 June 2013. There is no evidence of her capacity in July 2013. On 1 August 2013, the doctor certified her fit for some work for 21 hours per week.
204.In light of his opinion, on a background of the views of Mr Jupp and Drs Henson and Canaris, I am satisfied that the applicant was unable to return to her per-injury duties prior to 30 June 2013, apart from the trial of her per [sic]-injury duties from 29 October 2012 to 8 December 2012.
205.Similarly, having regard to the definition of suitable employment in s 32A of the 1987 Act, based on Dr Gunawardena’s certificates, her age, education, skills, work experience and the other matters referred to in the definition, I am not satisfied that the applicant was fit for suitable employment prior to 30 June 2013. Thus she had no current work capacity from 15 October 2012 to 26 October 2012 and from 9 December 2012 to 30 June 2013.
206.Whilst it is true that the applicant made a number of applications for fulltime employment between March and July 2013, it is clear from the medical evidence of Dr Gunawardena that the applicant had no work capacity in that period.”
The submission that the Arbitrator’s conclusion at [163] appears to be based on Dr Roberts’ history is inaccurate and involves a surprising misreading of the Arbitrator’s clear reasons. In reaching his conclusion that Ms Figueira’s application for numerous full-time positions did not necessarily mean that she considered she was fit for that work, the Arbitrator relied on three things, not one. They were:
(a)     Ms Figueira’s discussions with Mr Tasker regarding her reduced work hours showed that she was reliant on her doctor’s opinion regarding her fitness for full-time work;
(b)     Dr Gunawardena’s evidence, and
(c)     the fact that Ms Figueira had told Dr Roberts that she would accept a part-time position, but would need to discuss any full-time position with her doctor.
The Arbitrator referred (at [22]) to the evidence of Ms Figueira’s discussions with Mr Tasker. He correctly noted that, in a conversation with Ms Figueira on 4 December 2012, Mr Tasker had raised the issue of Ms Figueira’s working hours and she had “advised that she was reliant on her doctor’s instructions regarding treatment and the need to work for fewer hours”.
This observation was consistent with Ms Figueira’s statement of 21 December 2012, where, when responding to Mr Tasker’s apparent complaint about the hours she was working (after she had submitted her claim), she said (at [39] of her statement) that “[Mr Tasker] was not a doctor and nor was [she]” and that it was the doctor’s instruction that, at that time, she work from 9 am until 4 pm, not from 9 am until 5 pm. It was also consistent with Mr Tasker’s file note of 4 December 2012 (referred to by the Arbitrator at [55]) to the effect that Ms Figueira was reliant on her doctor’s recommendations regarding her work hours.
This evidence provided persuasive support for the Arbitrator’s conclusion that Ms Figueira was reliant on her doctor’s opinion regarding her fitness for full-time work. As the Arbitrator correctly recorded, at the time Ms Figueira was looking for work, Dr Gunawardena indicated that she had no current work capacity. Though the Arbitrator did not expressly say so, this evidence also supports a conclusion that Ms Figueira was dependent on her doctor’s opinion regarding her work hours in general, including part-time work. Thus, this evidence supported a finding that Ms Figueira’s applications for employment did not necessarily mean that she was fit for either full-time (or part-time) work between March and June 2013. If the Arbitrator erred in failing to refer (at [163]) to part-time work, that error does not assist Boral because, in light of the other evidence in the case, which is discussed below, it makes no difference to the outcome.

Turning to Dr Roberts’ evidence (Dr Gunawardena’s evidence is discussed below), the relevant history recorded by Dr Roberts is in his report of 25 November 2013, where he said:
“Ms Figueira stated that since losing her job she had applied for positions I understand of a similar type to that which she had had with Boral. When asked as to whether if she had been successful in such a job application as to whether she would have accepted that position Ms Figueira stated that she would have accepted a part-time position – she stated that if it was a full-time position she would ask her doctor.”
The Arbitrator accurately summarised this evidence at [84]. His comment (at [163]) repeated the essential point in that history. He was entitled to consider that history in his assessment of the claim for weekly compensation. Though Dr Roberts’ history was relevant, it was not determinative and the Arbitrator did not treat it as determinative. His reference to it involved no error, but provided support for the Arbitrator’s conclusion.
Mr Murray’s submissions about the effect of Ms Figueira seeking full-time positions are based on three false assumptions. First, that Ms Figueira’s applications for full-time employment established that her view was that she was fit for that work. Second, that Ms Figueira’s view was determinative of the issue of whether she had no current work capacity. Last, that the Arbitrator was therefore bound to accept that view and erred in not doing so.
As Ms Figueira did not directly deal with her fitness for work in her statements, the submission that her view was that she was fit for full-time work was an inference from the fact that she had made several job applications in the period concerned. That inference may or may not have been correct. Dr Roberts’ history supported the conclusion that Ms Figueira clearly did not think she was fit for full-time work without first checking with her doctor. Her doctor was of the view that she was not fit for such work, or, in the period up to 30 June 2013, fit for part-time work.
Even if it were accepted that Ms Figueira thought she was fit for full-time work, and the Arbitrator (correctly) did not believe that that was her view, that was not determinative of the issue in dispute. First, a worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury, and the Arbitrator was not bound to accept the job applications as evidence of a capacity to work. He had to consider the whole of the evidence, including the medical evidence, and make an assessment based on that evidence. That is what he did.
Second, at its highest, Ms Figueira’s alleged view of her capacity was no more than an informal out-of-court admission or concession that may be contradicted by other evidence. As explained by Heydon JA (Spigelman CJ and Sheller JA agreeing) in Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492 (at [151]), a court (or, I would add, tribunal) can choose between the admission and the other evidence and the court is not bound to accept the admission as correct, even if it is not contradicted. In the present case, Ms Figueira’s “admission” was contradicted by a substantial body of medical evidence, which the Arbitrator considered in reaching his conclusion. He therefore did not err in not accepting Ms Figueira’s alleged “admission” or concession.
It follows that it is of no consequence that Mr Hickey did not apply to call further evidence from Ms Figueira about the job applications. He was not bound to do so and the Arbitrator was not bound to reach the conclusion urged by Mr Saul about the effect of the job applications.
Mr Murray’s reliance on Jackson is misplaced. In that case, unlike the present matter, the medical evidence in the period concerned, which the Arbitrator accepted, was unanimous that the worker was fit for light duties. The worker appealed that finding, arguing that the Arbitrator erred in not finding that she was totally unfit. In dismissing that ground of appeal, I noted the medical evidence and said that the worker’s evidence that she had been looking for suitable duties provided evidence that it was not her view that she was totally unfit for work. It followed that, on the whole of the evidence in that case, the Arbitrator had not erred in not finding the worker to be totally unfit.
There is no valid comparison between Jackson and the present claim. Contrary to Jackson, in the present claim, the medical evidence in the period concerned is that Ms Figueira had no capacity for work. Contrary to Mr Murray’s submission, Jackson does not “demonstrate how the Arbitrator should have approached and considered the making of the job applications in the present matter”. It was decided on its own facts and provides no assistance at all in the present matter. That is probably why Mr Saul did not refer to it.
I do not accept that the Arbitrator failed to afford appropriate consideration to the job applications. He considered Mr Saul’s submissions about them and, for the reasons stated, concluded that they did not necessarily mean that Ms Figueira considered she was fit for those jobs. That finding was open and disclosed no error.
Moreover, even if Ms Figueira did consider herself fit for those jobs, even part-time, her subjective view was not determinative but had to be weighed against the other evidence in the case, which included evidence of the nature of the injury, its consequences, and the medical evidence. The Arbitrator weighed the relevance of the job applications against the other evidence. That approach was appropriate.
In assessing whether Ms Figueira had “no current work capacity” between 1 March 2013 and 30 June 2013, the Arbitrator had to consider if, arising from her injury, Ms Figueira was “not able to return to work, either in [her] pre-injury employment or in suitable employment” (s 32A). Relevantly, suitable employment is defined in s 32A 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 WorkCover Guidelines may specify, and…”
Applying s 32A, the first matter to which the Arbitrator had to have regard was the nature of the incapacity and the details provided in medical information including, but not limited to, any certificate/s of capacity supplied by the worker. The certificates of capacity in the present matter are from Dr Gunawardena.
Contrary to Mr Murray’s submission, it is not correct that the Arbitrator’s determination of Ms Figueira’s work capacity from 1 March 2013 was “informed and guided entirely by the opinion and certification made by” Dr Gunawardena in his numerous certificates. The Arbitrator considered those certificates “on a background” ([204]) of the views of Mr Jupp and Drs Henson and Canaris, whose views he clearly accepted. In view of Mr Murray’s submissions, it is necessary to consider that evidence, and Dr Gunawardena’s evidence, in detail.
The Arbitrator referred (at [60]) to the evidence in Dr Gunawardena’s reports of 3 December 2012 and 10 December 2012 addressed to QBE. In the 3 December 2012 report, Dr Gunawardena diagnosed Ms Figueira to have stress induced anxiety resulting in headaches, low back pain, chest pains, insomnia and an increase in hypertension requiring additional anti-hypertensive medication. As her symptoms were not improving, he referred her, at her own cost, to a psychologist (Mr Jupp). In his report of 10 December 2012, Dr Gunawardena diagnosed Ms Figueira to have an Adjustment Disorder. He noted that she had been seen by Mr Jupp, who recommended two weeks off work due to her work related anxiety symptoms.
In a third report, dated 20 December 2012 and also addressed to QBE, Dr Gunawardena said that Ms Figueira had been seen by a psychologist, Mr Jupp, “who recommended the downgrading. He has advised that she is unfit for work at present”. Presumably, this was in response to an enquiry by QBE (not in evidence) about Ms Figueira having been certified unfit from 9 December 2012.
The Arbitrator referred to Dr Gunawardena’s certificates at [61]–[62]:
“61.Dr Gunawardena issued certificates for total incapacity from 15 October 2012 until 26 October 2012, when he cleared the applicant for return to her pre-injury duties on a trial basis until 9 December 2012. He certified her fit for suitable duties from 3 December 2012 to 9 December 2012 from 9.00 am to 4.00 pm. From 9 December 2012 to 20 January 2013, the doctor certified the applicant as totally unfit for work.
62.Dr Gunawardena indicated that the applicant had no current work capacity due to anxiety and stress from 19 January 2013 to 30 June 2013. Finally, the doctor certified that the applicant had the capacity for some type of work for 21 hours per week from 1 August 2013 to 31 December 2013.”
The Arbitrator then referred (at [63]–[65]) to the evidence from Mr Jupp. In his report of 28 November 2013, Mr Jupp confirmed that he first saw Ms Figueira on 8 December 2012 and noted that she had strong symptoms of anxiety due to workplace stressors. On 9 January 2013, Ms Figueira raised with Mr Jupp her concerns about the investigation regarding her claim. Her return to work remained in issue due to her previous workplace stressors.
The Arbitrator accurately recorded (at [65]) that Mr Jupp did not observe any improvement in Ms Figueira’s condition during his six counselling sessions prior to 4 June 2013 and there may have been (a) deterioration in her condition after February 2013. Specifically, Mr Jupp said, “there was no noticeable change in [Ms Figueira’s] level of distress between” 8 December 2012 and 4 June 2013. When Mr Jupp saw Ms Figueira in October 2013 and November 2013, he considered that she was still suffering from an Adjustment Disorder with mixed anxiety and depression that was initially associated with workplace stressors and was becoming chronic.
This was a generally accurate summary of Mr Jupp’s report. I would add, however, that Mr Jupp’s testing suggested that Ms Figueira had a “relatively severe Adjustment-like disorder (mixed anxiety/depression) initially associated with workplace stressor[s] and now tending to be chronic”. Mr Jupp added:
“Consistent with expectation [Ms Figueira] has not responded to therapy directed at regaining sufficient resilience to return to her work position. Now the prognosis for this, even if conditions were dramatically positively changed, is very poor indeed. Therapy is now directed at preserving general mental health by developing strategies to deal with anxiety and most particularly to interrupt the development of an emerging agoraphobia and transition to suicidal intent. In these regards there is a need to re-establish her self-esteem around her person and skills attributes.”
Other matters not expressly noted by the Arbitrator, but raised by Mr Hickey on appeal, were Mr Jupp’s statements in his reports headed “Psychological Report to GP” on 8 December 2012 and 4 June 2013, which were addressed to Dr Gunawardena. In the first of these reports, Mr Jupp said, under “ongoing management recommendations”, “[p]resently unfit for work. Would benefit from time away from work stressors”. In the second report, he said Ms Figueira would continue to benefit from counselling.
The Arbitrator considered (at [66]–[72]) the evidence from Dr Henson. In his report of 27 March 2013 to Dr Gunawardena, after his initial examination on 22 March 2013, Dr Henson diagnosed Ms Figueira to be suffering from a Major Depression Episode, Anxiety Disorder and Post Traumatic Stress Disorder that was “persisting and disabling”. Dr Henson saw Ms Figueira on a further six occasions between the first visit and 16 October 2013.
In his 8 November 2013 report, Dr Henson noted that Ms Figueira’s condition had improved and that she had been looking for work without success. She was still depressed, anxious and distressed about the events at work between 2010 and 2012. Her condition had become worse when she lost her job and she continued to experience recurring thoughts. The doctor was not able to say what restrictions should be placed on her return to work, which he thought would be determined by the work placement she will be able to find and what progress (was made) “with [her] Depression, Anxiety and Post Traumatic Stress Disorder over time before she finds suitable employment”.
The Arbitrator also referred to Dr Henson’s clinical notes, which revealed on 22 May 2013 that Ms Figueira was looking for a job more seriously. However, the notes for 10 July 2013 recorded that Ms Figueira felt worse again. On 15 August 2013, it was noted that she had succeeded in her Fair Work claim and that she was feeling better. However, on 13 November 2013, Dr Henson recorded that Ms Figueira was depressed a lot of the time and was anxious and distressed.
The evidence from Dr Canaris, which the Arbitrator summarised at [73]–[79], was in a medicolegal report addressed to Ms Figueira’s solicitors dated 22 November 2013. The Arbitrator recorded that Dr Canaris took a history that, since being made redundant, Ms Figueira had experienced sleeping problems and lacked energy, and that she had attended a few job interviews but came away teary eyed. On this last point, the Arbitrator’s summary was not completely accurate. Dr Canaris actually wrote:
“[Ms Figueira] was terminated on the grounds of redundancy.
I asked how she had fared since then. She replied, ‘It’s not easy – I’ve lost a job that I enjoyed – for it to be just taken from me – I’ve been having a lot of difficulty sleeping – I’ve been finding that the mornings are difficult’. She continued, ‘I’ve been to a couple of interviews but when I go I get very teary eyed and I can’t do it because I’m afraid the same thing will happen again – I’ve been lacking in energy and I spend most of the time just sleeping [during the day] – I normally was a very domesticated person but I find I just don’t have the energy to get things done.’
She continued, ‘I also enjoyed going out to the movies or going out with my friends bush walking but I don’t enjoy it now – people ask me why and I make excuses…I just feel terrible and so I’d rather not spoil things.’”
Dr Canaris diagnosed Ms Figueira to have a Major Depressive Disorder with prominent anxiety linked to her workplace. He recommended on-going treatment (which included continuing her anti-depressant medication), but did not comment on her capacity for work.
The Arbitrator considered, but did not accept, the evidence in Dr Roberts’ first report, which was that Ms Figueira did not suffer from any psychological condition, but he noted that, in his second report, Dr Roberts conceded that Ms Figueira’s symptoms were consistent with Major Depression. The rejection of Dr Roberts’ initial opinion has not been challenged and his evidence need not be considered further.
Given the above medical evidence, save for the evidence from Dr Roberts, Mr Murray’s criticism of the Arbitrator for relying on Dr Gunawardena’s medical certificates is surprising. Section 32A expressly requires that regard to be had to “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)”. Thus, the Arbitrator was not only entitled to have regard to Dr Gunawardena’s certificates he was required to do so.
The submission that the Arbitrator should have placed little, if any, weight on Dr Gunawardena’s certificates, because there was no evidence that he was aware that Ms Figueira was applying for positions similar to her pre-injury role, is unsustainable. Mr Saul did not make that submission at the arbitration. His submission was, as the Arbitrator accurately summarised it at [118], that no weight could be given to the certificates because the doctor had not explained why Ms Figueira had no capacity for work prior to 1 August 2013 and was only fit for 21 hours per week thereafter, especially in light of Ms Figueira’s job search in that period. It is not an error for an Arbitrator not to deal with a point not argued (Brambles Industries Ltd v Bell [2010] NSWCA 162 at [22] and [30]).
In any event, the merit of Mr Murray’s submission on appeal on this point is dependent on the weight attached to the job applications. As explained above, those applications were not determinative and had to be considered in light of all the evidence. Having considered the evidence, it was open to the Arbitrator to accept the opinions in Dr Gunawardena’s certificates regardless of whether the doctor was aware that Ms Figueira had been seeking employment. On this last point, I note that the evidence is silent as to whether Dr Gunawardena was aware of Ms Figueira’s job applications. Given that he saw Ms Figueira on many occasions, it is quite possible that he was aware that she had been seeking employment. Nevertheless, whether or not he was aware was not critical to the acceptance of his opinion.
Mr Murray’s second attack on the Arbitrator’s acceptance of Dr Gunawardena’s certificates is based on the Arbitrator’s alleged criticism (at [133]) of the doctor’s opinion on causation. This attack is based on a false reading of the Arbitrator’s decision. At [133], the Arbitrator said:
“133.It is true that Dr Gunawardena has not provided detailed reasons for his opinion and it would have been prudent for [Ms Figueira’s] solicitor to obtain a detailed report and file copies of his clinical notes to enable greater weight to be given to his views. However, I do not believe that the same can be said of [Ms Figueira’s] other doctors.”
A fair reading of this passage does not support Mr Murray’s submission. The Arbitrator was not critical of Dr Gunawardena’s opinion on causation. He merely observed, quite properly, that it would have been prudent if Ms Figueira’s solicitors had obtained copies of the doctor’s clinical notes and a detailed report. The Arbitrator did not criticise Dr Gunawardena’s opinion on causation, but after considering it with the other evidence, accepted it.
If Mr Murray’s complaint is that the Arbitrator failed to properly deal with the submission made by Mr Saul about Dr Gunawardena’s evidence, I do not accept that to be so. The Arbitrator accepted the evidence of Dr Gunawardena and gave perfectly logical reasons for doing so. After stating (at [198]) that Mr Jupp and Drs Henson, Canaris and Roberts had not commented on Ms Figueira’s fitness (which was not entirely accurate and is discussed at [68] below), the Arbitrator said, at [199]:
“199. In these circumstances, I am of the view that the opinion of Dr Gunawardena should be preferred, especially given that he saw [Ms Figueira] on each occasion that he issued a certificate and he was in the best position to assess her capacity for work. However his certificates refer to both ‘total incapacity’ and no ‘current work capacity’.”
The Arbitrator again returned to the certificates (at [203]) and then (at [204]) said that “[i]n light of [Dr Gunawardena’s] opinion, on a background of the views of Mr Jupp and Drs Henson and Canaris” he was satisfied that Ms Figueira was unable to return to her pre-injury duties prior to 30 June 2013, apart from the trial of her pre-injury duties from 29 October to 8 December 2012. In light of the expert evidence summarised above, the Arbitrator’s conclusions at [199] and [204] were open and disclosed no error.

If the Arbitrator erred, he erred by saying that Mr Jupp and Dr Henson had not commented on Ms Figueira’s fitness. In fact, Mr Jupp stated in his report to Dr Gunawardena of 8 December 2012 that Ms Figueira was unfit for work. This statement, read with his statement in his report of 28 November 2013 that he did not see any improvement in Ms Figueira’s condition in the six counselling sessions prior to 4 June 2013 and that there may have been some deterioration after February 2013, provides strong support for the Arbitrator’s conclusion. Similar support is found Dr Henson’s report of 27 March 2013, where he said that Ms Figueira’s condition was “persisting and disabling”. Thus, if the Arbitrator erred in his assessment of this part of the evidence, it is not an error that has affected the outcome. In other words, it was an error that was (potentially) adverse to Ms Figueira, not Boral.
Turning to Mr Murray’s general submissions on appeal, those submissions have ignored the principles relating to expert evidence in the Commission discussed in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock), which the Commission has consistently applied in several decisions. Hancock made it clear that, even in evidence based jurisdictions, compliance with the usual requirements for expert evidence “does not require strict compliance with each and every feature referred by Heydon JA in Makita to be set out in each and every report” (per Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) in Hancock at [82]).
Beazley JA added (at [83]) that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]). If an expert has done more than one report, those reports must be read together, and with the other evidence tendered. That is because a deficiency in one part of the expert’s evidence “may be made good by other material, either in another report or in oral evidence” ([92]).
What is required by way of an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [631]). However, an expert does not have to “offer chapter and verse in support of every opinion” (Sydneywide Distributors Pty Ltd vRed Bull Australia Pty Ltd [2002] FCAFC 157 at [89]).
As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich [2005] NSWCA 152 at [170] “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”. In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports.
In the present case, the history on which Dr Gunawardena relied was recorded in his first certificate, dated 20 October 2012, where, in different handwriting to the body of the certificate, the following appears under “How the injury occurred”:
“CONSPIRACY, BULLYING, INTIMIDATION BY CERTAIN MANAGERS AND STAFF, NAME CALLING AND DEFAMATION BY CERTAIN INDIVIDUALS CAUSED ME A LOT OF STRESS & ANXIETY.”
Though there is no evidence on it, the reasonable inference is that this was written by Ms Figueira.
In addition, as noted above, Dr Gunawardena had the benefit of the report from Mr Jupp dated 8 December 2012 in which it was stated that Ms Figueira was unfit for work. Dr Gunawardena’s certificates stated his opinion on diagnosis, the management plan for Ms Figueira, and his opinion on her fitness for work. The certificates, when read with the other evidence in the case, which Hancock makes clear an Arbitrator is entitled to consider, provided ample support for the Arbitrator’s conclusions on Ms Figueira’s fitness for work.
The other evidence of particular relevance in this case includes:
(a)     Mr Jupp’s evidence that he had not observed any improvement in Ms Figueira’s condition during his six counselling sessions prior to 4 June 2013 (referred to by the Arbitrator at [65]);
(b)     Dr Henson’s evidence that Ms Figueira’s condition became worse when she lost her job (referred to by the Arbitrator at [68]), and
(c)     the evidence from Dr Canaris that Ms Figueira had attended a few job interviews but became teary eyed (referred to by the Arbitrator at [78]).
While the Arbitrator did not expressly refer the evidence from Mr Jupp in his report to Dr Gunawardena of 8 December 2012 that Ms Figueira was unfit for work, as explained at [68] above, that omission was adverse to Ms Figueira and has not affected the outcome. Similarly, the Arbitrator’s failure to expressly refer to Dr Henson’s comment in his March 2013 report that Ms Figueira symptoms were “persisting and disabling” does not assist Boral. The Arbitrator was aware of Dr Henson’s evidence and (correctly) accepted that it was supportive of Ms Figueira’s claim. In any event, as noted at [68] above, the omission was one that was adverse to Ms Figueira and makes no difference to the result.
I have not overlooked the fact that the Arbitrator’s summary of Dr Canaris’s evidence (reproduced at [76(c)] above) was not a completely accurate statement of Dr Canaris’s history. However, the full history (set out at [58] above) is more strongly supportive of Ms Figueira than that recorded by the Arbitrator. That is because it recorded not only that Ms Figueira got teary eyed when she went to job interviews, as the Arbitrator noted, but, more significantly, that Ms Figueira said “I can’t do it because I’m afraid the same thing will happen again”.
This was a powerful statement, at the time of the job applications, of Ms Figueira’s inability to cope with the stress of a job interview, let alone the demands of regular employment, and provided strong additional support for the Arbitrator’s findings. The Arbitrator’s failure to refer to the full history was an error, but was not an error that has affected the outcome. That is because the full history supports Ms Figueira, not Boral.
An additional matter, which the Arbitrator did not refer to, but Mr Hickey raised on appeal, was Mr Jupp’s evidence that testing suggested that Ms Figueira had a “relatively severe Adjustment-like disorder” and that she Ms Figueira had not responded to therapy directed at regaining sufficient resilience to return to her work position (see [53] above). Though the Arbitrator erred in not referring to it, the error has not affected the outcome because, if anything, this evidence further confirms the Arbitrator’s conclusion. So too does Dr Henson’s 8 November 2013 report where he said that Ms Figueira’s condition had improved but she was still depressed, anxious and distressed about the events at work between 2010 and 2012 (see [56] above).
It follows that, when considered on the background of the evidence from Mr Jupp, Dr Henson and Dr Canaris, the Arbitrator’s acceptance of Dr Gunawardena’s evidence complied with the principles in Hancock and involved no error. If there were errors, they were errors that made no difference to the outcome because the full histories from Ms Figueira’s medical experts were even more supportive of her case on incapacity than the Arbitrator had allowed.
Mr Murray’s next submission relates to the Arbitrator’s statement at [205], where he said:
“205.Similarly, having regard to the definition of suitable employment in s 32A of the 1987 Act, based on Dr Gunawardena’s certificates, her age, education, skills, work experience and the other matters referred to in the definition, I am not satisfied that the applicant was fit for suitable employment prior to 30 June 2013. Thus she had no current work capacity from 15 October 2012 to 26 October 2012 and from 9 December 2012 to 30 June 2013.”
The complaint appears to be that the Arbitrator did not make clear what use he made of the “other matters”, or whether Ms Figueira’s skill, education etc were “actually taken into account”, as no reasons were provided. Mr Murray also repeated that the Arbitrator’s findings regarding Ms Figueira’s entitlement to weekly compensation were based “purely” on Dr Gunawardena’s medical certificates.
Mr Murray has not identified a failure to give reasons as a separate ground of appeal, but has linked his submissions on this point to his complaint that the Arbitrator should not have accepted the evidence in Dr Gunawardena’s certificates. I have dealt with that issue and rejected Mr Murray’s submissions on it.
To the extent that Mr Murray seeks to raise an additional ground of appeal, namely, that the Arbitrator erred in failing to give reasons for his findings on incapacity, his complaint is without merit. A tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence (per McHugh J (sitting as a single judge) in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405; applied by Campbell JA (Allsop P and Beazley JA agreeing) in Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 at [47]).
It is also prudent to remember (as the Commission has pointed out in dozens of decisions) that, when considering a challenge to the adequacy of reasons, the decision must be read as a whole and that “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443–444).
The Arbitrator exposed his reasoning on the critical issue in dispute (Ms Figueira’s work capacity) and articulated the essential ground on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). That ground was based on his acceptance of Dr Gunawardena’s evidence, on a background of evidence from Mr Jupp and Drs Henson and Canaris, and Ms Figueira’s age, education, skills, work experience and the other matters in the definition of suitable employment. His reasons were adequate in the circumstances. This is sufficient to dispose of Mr Murray’s submission on this point. However, for completeness, I make the following additional observations.
The Arbitrator’s reference to Ms Figueira’s age, education, skills, and work experience was a reference to the fact that Ms Figueira is 63 years of age and had worked as a personal assistant with Boral, or one of its related companies, since 2003. Though he did not expressly refer to her education and skills, the uncontested evidence was that Ms Figueira completed seven years of primary school and four years of secondary school in Nairobi, and then a secretarial course. She came to Australia at about 18 years of age. She did office work in an insurance company for 16 years. This was the extent of the evidence of Ms Figueira’s education, skills and experience.
Given the diagnosis that Ms Figueira suffers from a Major Depressive Disorder and/or Anxiety Disorder, and the symptoms that go with such a diagnosis, which the Arbitrator accepted (see [137]), it is a matter of commonsense, which requires little further explanation or articulation, that such a condition/s would adversely affect the capacity to earn of a woman of Ms Figueira’s age, education and work experience.
It is correct that the Arbitrator did not identify the “other matters referred to in the definition” of suitable employment. The other matters in the definition include any return to work plan or injury management plan, any occupational rehabilitation services provided to the worker, and such other matters as the WorkCover Guidelines may specify. Mr Saul properly acknowledged (at T51.19) that these matters were not relevant in the present case. That was because Boral never offered a return to work plan or occupational rehabilitation service. In these circumstances, the “other matters” were irrelevant to the Arbitrator’s determination. It was not necessary for the Arbitrator to make that rather obvious point. Mr Murray’s submission was more than a little surprising.

CONCLUSION

The appeal was without merit. If the Arbitrator erred, his errors were against Ms Figueira’s interests and (clearly) did not affect the outcome. Mr Murray’s submissions were plainly wrong on several issues and misguided on others. He ignored binding Court of Appeal authority dealing with expert evidence in the Commission (Hancock). In general, his submissions involved a sustained misreading of the Arbitrator’s reasons.

DECISION

The Arbitrator’s determination of 10 March 2014 is confirmed.

COSTS

No order as to costs.

Bill Roche
Acting President

4 July 2014

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

ASSOCIATE