CFC Consolidated Pty Ltd v Armet
[2020] WADC 85
•11 JUNE 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CFC CONSOLIDATED PTY LTD -v- ARMET [2020] WADC 85
CORAM: WALLACE DCJ
HEARD: 11 MARCH 2020
DELIVERED : 11 JUNE 2020
FILE NO/S: APP 88 of 2019
BETWEEN: CFC CONSOLIDATED PTY LTD
Appellant
AND
STEPHANE ARMET
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram: ARBITRATOR SOH
File Number : A49618
Catchwords:
Workers' compensation - Appeal - Whether common law principles governing admissibility of expert evidence have application - Whether assessment of weight of expert evidence is an error of law - Wrongful finding of fact not an error of law - Irrelevant finding of fact not an error of law
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr T H Offer |
| Respondent | : | Ms M Aranda |
Solicitors:
| Appellant | : | SRB Legal |
| Respondent | : | Maryse Aranda Lawyers |
Case(s) referred to in decision(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Beer v Duracraft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Cape Australia Holdings Pty Ltd v Burridge [2019] WADC 105
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
MacMahon Holdings Ltd v McKenzie [2018] WADC 28
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Marks v Coles Supermarkets [2020] WADC 36
Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550
Suleski v Pilbarra Iron Company (Services) Pty Ltd [2018] WASCA 147
WALLACE DCJ:
On 18 March 2015, whilst the respondent, Mr Stephane Armet, was employed as a labourer with the appellant, CFC Consolidated Pty Ltd, he suffered an injury to his back. He made a claim under the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act). The appellant accepted liability and commenced weekly compensation payments to the respondent.
On 23 January 2018, the respondent made an application to WorkCover WA (WorkCover) alleging that the ongoing symptoms of pain due to the compensable back injury had caused him to suffer psychiatric injury in the form of an Adjustment Disorder.
The application came on for arbitration at WorkCover on 21 and 22 February 2019 (Arbitration) and by decision dated 24 October 2019 (Decision), which was published on 14 November 2019, a WorkCover arbitrator (Arbitrator) determined liability and ordered the appellant to pay the respondent the sum of $240 in respect of medication expenses and the reimbursement or funding of up to $6,000 for referral to a clinical psychologist for up to 24 treatment sessions, being a reasonable medical expense likely to be incurred under sch 1 cl 17(1) of the WCIM Act.
The appellant appealed the decision to this court by filing an appeal notice on 21 November 2019. The appellant raised three questions of law:
1.Whether the principles outlined in Makita (Aust) Pty Ltd v Sprowles, Pollock v Wellington and Pownall v Conlan Management Pty Ltd have application in the context of a WorkCover Arbitration.
2.Whether the learned Arbitrator made findings of fact that were not supported by evidence.
3.Whether the learned Arbitrator made a finding of fact that was not material to any question to be determined by him.
Background facts
On 24 October 2012 the respondent began working with the appellant as a manual labourer.
On 18 March 2015, the respondent suffered an injury to his back after unloading a container for the appellant. The incident was reported by the respondent and an incident report was prepared.
The respondent returned to work with the appellant on 24 March 2015. He was taking pain medication for his back injury during this time and medical certificates certified him for light duties.
On 28 July 2015 the respondent claimed workers' compensation for his back injury.
The respondent attended on his general practitioner and was referred for a CT scan of his lumbosacral spine. The first WorkCover WA certificate of capacity noted in respect to the CT scan that there were shallow disc bulges at L3/L4, L4/L5 and L5/S1 and capacious spinal canal with no evidence of cauda equina or nerve root compression.[1]
[1] WorkCover WA - first certificate of capacity dated 28 July 2015.
During 2 - 4 September 2015 the respondent aggravated his back injury by undertaking manual tasks which involved pumping, pushing, pulling and moving heavy pallets. He experienced pain to his coccyx region which was reported to the appellant and a 'hazard/near miss' report was prepared.[2]
[2] Dated 4 September 2015.
The respondent left the workplace of the appellant on 14 September 2015 and has not returned to work since that date.
A progress certificate of capacity issued on 15 September 2015 certified that the respondent was totally unfit for work and referred him for physiotherapy treatment.[3]
[3] Report of Dr Terace dated 12 February 2019, page 5.
On 14 October 2015, the appellant's insurer accepted liability for payment of statutory workers compensation benefits for the respondent's lower back injury.
The respondent was referred to Dr Peter McCarthy, consultant psychiatrist, for an independent psychiatric assessment on 9 October 2017 and 6 November 2017. Dr McCarthy in his report dated 17 November 2017 noted:[4]
Mr Armet says that in late 2015 into 2016 he developed symptoms of anxiety and depression in the context of chronic pain, tinnitus and difficulty with his physical movements. He became frustrated over his injuries for which he attempted to access treatment …
…
Mr Armet says that since late 2015 he has suffered from restless sleep with initial insomnia and tiredness during the day. He complains that he has been persistently moody with irritability and fluctuating symptoms of anxiety and depression although without panic attacks, agoraphobia or obsessive compulsive symptoms. He says he has become socially avoidant. He has a poor appetite and a poor libido. He says his memory and concentration are impaired and he is easily distractible …
…
Mr Armet describes the development of mechanical back and neck pain in 2015 in the context of the above described injuries. Since then he has developed tinnitus, foot pain and alopecia which he believes is related to his original injury. He describes a now two year history of fluctuating symptoms of anxiety and depression. He has received a modicum of treatment with only some improvement in his mood.
Mr Armet is suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-5 309.28). A Chronic Adjustment Disorder refers to the development of emotional symptoms, in Mr Armet's case, symptoms of anxiety and depression, in response to an identifiable stressor, the development of low back pain from two apparently work‑related injuries. His emotional distress has been associated with a significant impairment in his social and occupational functioning.
[4] Report of Dr McCarthy dated 17 November 2017, pages 4 - 6.
The respondent applied for medical expenses, funding for treatment and other statutory allowances in January 2018 in respect to his Adjustment Disorder.
The appellant arranged for the respondent to be assessed by Dr Lawrence Terace, consultant forensic psychiatrist, on 31 January 2019.
Dr Terace prepared a report dated 12 February 2019 which relevantly noted:[5]
[5] Report of Dr Terace dated 12 February 2019, pages 37 - 40.
Mr Armet did not describe being depressed but rather his frustration and anger with the procedures relating to the medico-legal processes, with particularity to one medical practitioner, the compensation process, Workcover, the District Court and Court of Appeal.
He described anxious rumination about his work and treatment future.
He described interruptions to sleep associated with matters of the workers compensation and legal process.
He described daytime fatigue, anergia and loss of motivation which was described as relating to his consuming obsession with the same process.
He described appetite impairment, but no cognitive disturbance.
…
At the end of 2017, he consulted a psychiatrist, reportedly because his ex-partner and general practitioner were concerned about his behaviour at home and he described constant pain, insomnia related to tinnitus, and loss of control, such that he damaged a door on one occasion requiring attendance to Rockingham Hospital on 4 April 2016.
…
I concluded that he perceived that his symptoms were the product of pain and physical symptoms including tinnitus and hair loss, the workers' compensation process itself, the litigation, and his perception that he had been mistreated by individuals in the process, and the process itself.
However, the history supports the view that his psychological symptoms were probably multi-factorial in causation.
…
There were no internal inconsistencies in the sense that from a psychiatric perspective he presented at most with an Adjustment Disorder with Anxiety which I considered to be relatively mild in severity.
…
Mr Armet barely exceeds the threshold of an Adjustment Disorder, and it should be noted that the threshold of an Adjustment Disorder is generally low in psychiatric terms.
Essentially, he is frustrated, angry and aggrieved in psychological terms.
Arbitration
The Arbitration took place on 21 and 22 February 2019. The respondent gave oral evidence. In addition, the Arbitrator had the benefit of the following material:
(a)the report of Dr Terace dated 12 February 2019;
(b)the report of Dr McCarthy dated 17 November 2017;
(c)Centurion hazard/near miss report dated 4 September 2015;
(d)report of Dr Hannes Gebauer dated 22 March 2017;
(e)supplementary report of Dr Ian Wallace dated 8 September 2016;
(f)the report of Mr Soni Narula dated 12 February 2018;
(g)incident identification report dated 18 March 2015;
(h)incident report prepared by the respondent dated 25 March 2015;
(i)appellant's team member interview form dated 21 July 2015; and
(j)WorkCover WA first certificate of capacity dated 28 July 2015.
The Arbitrator also had the benefit of numerous written submissions as well as oral submissions made during the course of the hearing by the parties.
The respondent was not legally represented at Arbitration.
On 21 February 2019 the respondent gave the following oral evidence before the Arbitrator:
Arbitrator:So when did you first start feeling the stress?
Mr Armet:Since I got the pain. When you've got pain, of course you were stressed. I mean, it's common sense. …
Arbitrator:So that's the pain from the …
Mr Armet:From the back.
…
Mr Armet:But, yes, I mean it creates stress, anxiety. It's not fears because I don't have any - fears is something else.
…
Arbitrator:So when did you start getting anxiety?
Mr Armet:From the day that you enjoy yourself because you - you're having pain with - unusual pain. I had never been in that pain before. Then you feel a little bit concerned. You feel, like, anxious and you feel stress. If you're to perform a physical activity like mine on a regular basis, without any change of duties, then you have to pace yourself. You have to be careful. To be careful is going against the natural duties of the employee towards the employer. … [6]
[6] Arbitration ts 86.
…
Arbitrator:… Did anything develop mentally?
Mr Armet:No, because I stop - once I got the coccyx done on Friday, I say, 'no, this is going nuts. There's something wrong with me. There is something wrong with me'. So, yeah, the distress - the distress hasn't been out of me since the first injury. It just went up everyday that I show up at work and nobody gives an eff. No attention. No medical exam. It doesn't matter. …[7]
[7] Arbitration ts 102.
…
Mr Armet:My symptoms? My roster of sleeping was like I was awake two or three days in a row, no sleep.
Arbitrator:Awake you say two days in a row?
Mr Armet:Yeah, two or three days in a row. So I had to be extremely tired to get fucked and, sorry, to take a break or fall asleep for a few hours.
Arbitrator:So what was causing you to not sleep properly? …
Mr Armet:So there's no noise. If I go - because when you are in an environment where there's no noise then the ring is more - you can hear it even stronger, ok. …
…
But not only because of the tinnitus, because when I lay in the bed I am in pain in the back and in the foot. The neck is basically pain who appears only when I do the movement to the right side, ok - not to the left, to the right.
Arbitrator:So you are tired, you've been awake two or three days. So how are you mentally? Just describe it for me.
Mr Armet:I am exhausted - exhausted. I am exhausted. For sure I am stressed, anxiety. …
Arbitrator:Do you remember any specific or behaving in any specific manner because of the exhaustion, stress and anxiety?
Mr Armet:Yeah. Yeah, ok (indistinct) will be my partner, ex‑partner, to the - I start to get very - how is it - because if she makes a noise behind me then I get crazy. If she bangs something without me getting ready to hear the banging then I get crazy.
…
Arbitrator:What did you do?
Mr Armet:… You try to control the - you try to control, otherwise you're going to kill somebody or you're going to hurt somebody, you know, but - what do you think?
Arbitrator:How did you behave when you were depressed?
Mr Armet:Well, you - know.
Arbitrator:I want to know what you did.
…
Mr Armet:I knew she is doing something with - that I - I say 'what the fuck are you doing? I mean' - and of course she gets scared. She is only 34 years old, you know. I am 52.
…
Arbitrator:All right. Did you ever do anything physically, as in violence?
Mr Armet:I think there was a report in April, 4 April. It's a medical report from the hospital because I had to go to the hospital to get some medication because I demolished the bedroom - no, not the bedroom. I demolished the door.
…
Mr Armet:There was numerous incidents, ok.
…
Mr Armet:When the vase overflow with the water, the accumulation of the pain, the accumulation of the things who hurt you, the vase goes up and once the splash - the last splash on top of the vase make the water to overflow, then it creates a tsunami. That was the tsunami on 4 April 2016, ok. That's when - I didn't smash anything before, ok, but I scared her from the start. So I lose her after I left the job, ok, gradually.[8]
…
Mr Armet:… So if it's related to stress and anxiety, then this - I got it from the start, once I got the pain, ok. If I didn't have any pain on my back radiating to the leg and the foot, I surely wouldn't be stressed or suffer from anxiety and all the definitions from this MSD or whatever - DSM, ok.[9]
[8] Arbitration ts 102 - ts 108.
[9] Arbitration ts 117.
The Arbitrator ultimately found that the respondent's back injury and associated pain symptoms materially or significantly contributed to the contraction and development of his Adjustment Disorder[10] and thus found that the appellant was liable to pay compensation to the respondent in respect to the psychiatric injury, being a consequential condition caused by his original compensable back injury.
[10] Decision [144].
Of relevance to the appeal currently before this court, the Arbitrator found:[11]
[11]Decision [54] - [66].
Mr Armet gave unchallenged evidence that since suffering his back injury on 18 March 2015, he began to experience stress and anxiety. Mr Armet said he became anxious when he returned to work after the March 2015 incident because his work duties did not change, and he had to be careful whilst doing physical tasks. He described his mental state at the time, saying 'the stress went up every day I showed up at work'.
Mr Armet also gave evidence that after he left CFC on 14 September 2015, his 'back went crazy', he discovered 'ringing' in the ear (tinnitus), experienced an unpleasant feeling in the neck, and had pain radiating from his back down to his leg. He also said that his 'foot went ballistic'. In this case, Mr Armet's tinnitus and neck pain are not compensable conditions. …
Mr Armet said he became mentally exhausted from stress, anxiety and not sleeping properly. He said he would be awake 2 - 3 days in a row and became extremely tired. He said he was not sleeping properly because of the 'ringing' in the ear. He also said he had pain in the back and foot when he was lying in bed. He said he started to get very aggressive if his partner made a noise behind him, particularly loud noises.
…
The medical evidence that I have referred to suggests that Mr Armet has at least an Adjustment Disorder with anxiety, and I find this diagnosis established, particularly taking into account the diagnostic criteria referred to and set out by Dr Terace in Annexure A of his report (see p 60 of Exhibit 2). In my view, there is a reasonable and sound basis for both Dr McCarthy and Dr Terace to conclude in their respective reports that Mr Armet suffers from an Adjustment Disorder. The real or substantive issue for determination in this case is whether the Adjustment Disorder has been caused by Mr Armet's back injury and associated pain symptoms.
In Cape Australia Holdings Pty Ltd v Burridge [2019] WADC 105, his Honour Gething DCJ effectively ruled that principles which are part of the 'rules of evidence' for the purposes of s 188(2)(a) of the Act, do not apply to proceedings before an arbitrator, and as an arbitrator is not bound by the rules of evidence, the failure to apply such principles cannot constitute an error of law: see [43] - [44] of Cape Australia Holdings Pty Ltd v Burridge.
….
The common law rules for admissibility of expert evidence as articulated in decisions such as Beer v Duracraft Pty Ltd [2004] WASCA 192, Pollock v Wellington (1996) 15 WAR 1 and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, provide useful judicial guidance when dealing with expert evidence, however such authorities do not have strict application in the WorkCover WA jurisdiction presided by arbitrators, who are entitled by s 188(3) to inform themselves on any matter as they think fit.
Accordingly, I can have regard to and take into account, the expert evidence of Dr Terace and Dr McCarthy, accept or reject any part of that evidence, and inform myself as I see fit in respect of the medical issues.
The Arbitrator concluded:[12]
[12] Decision [137] - [143].
I take into account:
(a)the passage of time since the date of the work incidents which caused and/or contributed to Mr Armet's back injury in March 2015 and September 2015;
(b)Mr Armet's symptoms of ongoing pain, which is consistent in my view with a long term, chronic condition of his back injury;
(c)the development of Mr Armet's symptoms of stress and anxiety since sustaining his back injury;
(d)that Mr Armet has not returned to work and still remains incapacitated for work; and
(e)that Mr Armet was still receiving ongoing weekly payments of compensation for his back injury as at the time of arbitration.
Having regard to those factors, I am satisfied and conclude that Mr Armet's back injury and associated pain symptoms is material and significant in severity, and constitutes an ongoing condition, that is chronic and has not yet resolved.
…
Having regard to Dr Terace's opinion on the issue of causation, it is open for me to conclude that Mr Armet's pain symptoms and back injury has also contributed to his mental state, in a material sense. There is a rational and logical factual basis for me to accept Dr Terace's opinion, if I find that Mr Armet's back injury and associated pain has materially contributed to the contraction of his Adjustment Disorder. I am prepared to draw that inference in this case because I am satisfied that the evidence has established Mr Armet's back injury and pain symptoms to be material, significant, ongoing and chronic.
I also accept Dr Terace's opinion that the cause of Mr Armet's Adjustment Disorder is multi-factorial. I find that Mr Armet's back injury, together with his tinnitus condition, use of marijuana, and frustrations/anger with the workers' compensation dispute and ongoing litigation, have all materially contributed to the development of his Adjustment Disorder.
Whilst his back injury and pain symptoms may not be the predominant contributor to Mr Armet's Adjustment Disorder, I am nevertheless satisfied that the back injury and associated pain has still materially contributed to the contraction and development of his Adjustment Disorder over time. The back injury does not have to be the true cause, or main/predominant cause of the Adjustment Disorder, simply that it is a material cause, for which I am satisfied and so find.
I have also taken into account Dr McCarthy's opinion that Mr Armet has described a two year history of fluctuating symptoms of anxiety and depression, and that Mr Armet's symptoms of anxiety and depression are in response to development of low back pain. Dr McCarthy said Mr Armet's emotional distress has been associated with a significant impairment in his social and occupational functioning.
The District Court appeal
By notice filed 21 November 2019, the appellant appealed from the Decision. The appeal notice was filed within 28 days after the day on which the written reasons for the Decision were given to the appellant, as required by s 249(4) of the WCIM Act.
The appellant requires leave to be granted to appeal and pursuant to s 247(2)(b) of the WCIM Act, leave is not to be granted unless a question of law is involved.
The grounds of the appeal are as follows:
1.The learned Arbitrator erred in law in finding that he could have regard to the expert medical reports of Dr McCarthy and Dr Terace notwithstanding that material facts relied upon by those practitioners in forming their opinions, were not established in evidence.
2.The learned Arbitrator erred in law in finding that the respondent's back injury was 'ongoing', such finding having been made on 24 October 2019 in the absence of any evidence as to the status of the injury after 22 February 2019.
3.The learned Arbitrator erred in law in finding that the respondent 'continues to remain incapacitated for work' such finding having been made on 24 October 2019 in the absence of any evidence as to the respondent's work capacity after 22 February 2019.
4.The learned Arbitrator erred in law in finding that the respondent suffered from back symptoms caused by two 'work incidents' in March 2015 and September 2015 when the evidence was that the relevant back injury was sustained on 18 March 2015.
5.The learned Arbitrator erred in law in finding 'there was some degree of pressure being exerted on Mr Armet to return to his normal duties as soon as possible, notwithstanding his back injury' when:
5.1there was no evidence upon which such finding could be made; and
5.2such finding was not material to the question in issue, namely whether the respondent's psychiatric condition was materially contributed to by pain arising from a compensable injury, namely the respondent's back injury.
On 26 November 2019 the respondent filed a Notice of Respondent's Intention in which he advised that he intended to take part in the appeal.
The parties each filed written submissions dated 9 March 2020.
General legal principles
Leave to appeal will only be granted if there is a question of law involved: s 247(2)(b) of the WCIM Act.
An appeal will involve a question of law if the arbitrator has either made an error of law or an error of mixed law and fact.[13] A mere error of fact alone is insufficient.[14]
[13] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20].
[14] Erceg v Galati Nominees Pty Ltd [2016] WASCA 112 [31]; BHP Billiton Iron Ore Pty Ltd v Brady [5].
A misstatement of principle or technical error which is not material to the decision in the sense that it contributes to it, does not constitute an error of law.[15]
[15] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [15].
Evidentiary matters may raise questions of law; for example, if an arbitrator makes a finding of fact in the absence of any supporting evidence.[16]
[16] Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147 [19]; Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 [34].
However, an arbitrator does not make an error of law merely because:
(a)they find a fact wrongly or on a doubtful basis;[17]
(b)because they prefer one version of the evidence or one set of inferences over another version of the evidence or set of inferences;[18] or
(c)an inference drawn is as a result of illogical reasoning, as long as it was reasonably open to be made.[19]
[17] Atanasoska v Inghams Enterprises Pty Ltd [21].
[18] BHP Billiton Iron Ore Pty Ltd v Brady [5].
[19] Australian Broadcasting Tribunal v Bond [356].
It is for the court to properly analyse each ground of appeal to ensure that it involves a question of law, giving careful consideration to its true nature.[20]
[20] Atanasoska [21].
Even if a question of law is involved, leave is not automatically granted. The court retains a discretion whether to grant leave.[21]
[21] BHP Billiton Iron Ore Pty Ltd v Brady [20].
If leave to appeal is granted, then the appeal is to be by way of review of the decision: s 247(5) of the WCIM Act.
The review is to be a real review and is not limited to pure questions of law.[22]
[22] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43]; Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18].
The appellant must show a 'proper basis' for disturbing the decision at first instance such as establishing an error of 'fact, law or logic'.[23] Unless the review persuades the court that the arbitrator's decision should be varied, discharged or otherwise disturbed it should remain unaltered.[24]
[23] Erceg v Gallanti Nominees Pty Ltd [33]; Pacific Industrial Co v Jakovljevic [26].
[24] Pacific Industrial Co [20] - [26].
The appeal hearing proceeded in the usual manner, that is, the issue as to whether I should grant leave to appeal was simultaneously addressed with the substantive issue as to whether the appeal ought to be allowed. Where this occurs, the appropriate approach is to address the question of leave after proper consideration of the substantive merits of the appellant's grounds of appeal. The court is then in a position to either grant leave and uphold or dismiss the appeal, or alternatively, to refuse leave and to dismiss the appeal.[25]
[25] BHP Billiton Iron Ore Pty Ltd v Brady [14].
Determination
Ground 1 of the appeal
The appellant submitted the following in relation to ground 1:
(a)the psychiatric opinions were based on particular underlying facts and it was therefore necessary for the respondent to lead evidence establishing those underlying facts;
(b)given that there was a variation between the facts underpinning the psychiatric opinions before the Arbitrator and the evidence of the respondent, it was necessary for the Arbitrator to examine the variation in order to assess whether any unproven fact relied upon by the experts, or any omission from the material given to them, rendered the expert opinions either inadmissible or of lesser weight; and
(c)the learned Arbitrator appeared to rely on the decision of Gething DCJ in Cape Australia Holdings Pty Ltd v Burridge[26] and s 188(3) of the WCIM Act to effectively allow the Arbitrator to bypass the necessary task set out in Beer v Durocraft Pty Ltd.[27] Such an approach demonstrates a clear error of law.
[26] Cape Australia Holdings Pty Ltd v Burridge [2019] WADC 105 [92] - [94].
[27] Beer v Duracraft Pty Ltd [2004] WASCA 192.
The respondent submitted:
(a)this ground of appeal discloses no error of law and is merely asserting an error of fact only;
(b)there is no need for an exact correlation to exist between the facts underpinning an expert opinion and the facts established in oral evidence at the hearing; and
(c)it was open to the Arbitrator to make the findings made on the basis of all of the evidence before him including all of the underlying medical reports, the psychiatric reports and the evidence of the respondent, which was found to be honest and reliable.
In respect of the application of the rules of evidence to arbitration hearings conducted at WorkCover, s 188 of the WCIM Act provides as follows:
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
The fact that an arbitrator is not bound by the rules of evidence does not mean that the fundamental principles underpinning those rules, which helpfully guide a decision maker's consideration of evidence and the weight to be afforded to it, should therefore simply be ignored.
As noted by his Honour O'Neal DCJ in McMahon Holdings Ltd v Mckenzie:[28]
The historical common sense as to what makes particular evidence persuasive or gives it value for a decision maker, and how contentious facts should be proved to ensure fairness to all concerned, are not to be discarded lightly. Section 188(2)(b) of the Act itself expressly requires that hearings before arbitrators be conducted, 'according to equity, good conscience and the substantial merits of the case …'.
[28] MacMahon Holdings Ltd v McKenzie [2018] WADC 28 [40].
In relation to the admissibility and weight to be given to expert evidence, McClure J set out the following principles in Beer v Duracraft Pty Ltd at [78] - [80]:
… An expert must either prove by admissible means the facts on which the opinion is based or explicitly state the assumptions as to fact on which the opinion is based: Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Pollock v Wellington (1996) 15 WAR 1; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
Further, the process of inference that leads to the formation of the relevant opinion must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about their reliability: Pollock v Wellington at 4 per Anderson J; Makita v Sprowles at 741 per Heydon JA.
In this case, as with the majority of cases involving medical expert evidence, the relevant history supplied by the claimant provides the factual foundation for the statement of expert opinion. In many cases there is not an exact correlation between the facts proven in evidence and the facts relied upon by the medical practitioner upon which his or her opinion is based. The role of the decision maker is to examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight.
The application of these principles in the WorkCover jurisdiction has already been cited with approval by this court.[29]
[29] Marks v Coles Supermarkets [2020] WADC 36 [127] - [130].
Firstly, as to whether this ground of appeal involves a question of law, if the ground of appeal merely asserted a failure by the learned Arbitrator to apply the rules of evidence in respect to admissibility of expert evidence, that would not constitute an error of law given the operation of s 188(2)(a) of the WCIM Act.
However, this ground of appeal contends that the learned Arbitrator wrongly found, given that the rules for admissibility of expert evidence do not have strict application, that he was not required to have regard to the relevant common law principles in assessing the admissibility and weight to be afforded to the psychiatric expert evidence before him.
Alternatively, the appellant submitted that if the learned Arbitrator did have regard to the common law principles governing the admissibility of expert evidence, then he failed to properly apply them, specifically, by failing to identify any variation between the facts proven in evidence and the foundational facts relied upon by the medical experts on which their opinions were based.
Whilst the rules of evidence are not to be strictly applied by an arbitrator, the fundamental principles underpinning them nevertheless remain persuasive and are an important guide or tool to assist in the careful assessment of the reliability, probative value and weight to be given to expert evidence. Such a position is, in my view, entirely consistent with s 188(2)(b) of the WCIM Act which requires an arbitrator to act according to equity, good conscious and the substantial merits of the case.
The fundamental principles which underlie the task of assessing expert evidence therefore should not be discarded or given little consideration or no practical application by an arbitrator in the WorkCover jurisdiction.
The principles importantly reinforce what are matters of common‑sense and logic, by identifying the need for a decision maker to satisfy themselves that the assumed facts, upon which an expert opinion is based, are proven or proven to such an extent that the opinion can be given weight and probative value. The necessity for such an assessment avoids the risk of a decision-maker placing weight on unreliable, unsupported or speculative expert opinions.
Thus the application of the principles set out in Beer v Duracraft, Pownall v Conlan and Makita (Australia) v Sprowles is in the context of assessing the admissibility of, and the weight to be given to, expert evidence.
Deciding what weight should be given to expert evidence is a factual determination. The issue of weight is therefore a matter for an arbitrator in the context of all of the evidence before them.[30] An error of law will therefore only arise if the arbitrator makes a finding of fact in the complete absence of the factual foundational evidence.
[30] BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60 [60]; Erceg v Galati Nominees Pty Ltd [32]; BHP Billiton Iron Ore Pty Ltd v Brady [5].
As to whether such an error of law occurred in the context of this appeal, I need to first identify what factual findings underpinned the expert evidence opinions before the learned Arbitrator and which of those facts, if any, were proven in evidence at Arbitration.
The findings of fact underpinning the diagnosis of Adjustment Disorder made by Dr Terace appear to be the following symptoms:
(a)anxious rumination;
(b)interruptions to sleep;
(c)daytime fatigue;
(d)anergia;
(e)loss of motivation;
(f)appetite impairment;[31] and
(g)frustration, anger and feeling aggrieved.[32]
[31] Dr Terace's report dated 12 February 2019, page 38.
[32] Dr Terace's report dated 12 February 2019, page 40.
The diagnosis of Adjustment Disorder made by Dr McCarthy appeared to be based on the following symptoms:
(a)insomnia and tiredness during the day;
(b)persistently moody with irritability;
(c)fluctuating symptoms of anxiety and depression;
(d)socially avoidant;
(e)poor appetite;
(f)poor libido;
(g)memory and concentration impairment and easily distractible;[33] and
(h)significant impairment in social and occupational functioning.[34]
[33] Dr McCarthy's report dated 17 November 2017, page 5.
[34] Dr McCarthy's report dated 17 November 2017, page 6.
The appellant submitted that much of the underlying facts underpinning the expert evidence were not proven at Arbitration including:
(a)moodiness and irritability;
(b)depression;
(c)socially avoidant;
(d)poor appetite;
(e)poor libido;
(f)memory and concentration impaired and easily distractible; and
(g)lack of motivation.
On my assessment, the evidence before the learned Arbitrator established that the respondent was suffering from the following symptoms:
(a)stress and anxiety;[35]
(b)insomnia;[36]
(c)exhaustion;[37]
(d)irritability and anger particularly with the respondent's ex‑partner;[38]
(e)aggression;[39]
(f)impairment of occupational functioning;[40] and
(g)significant impairment in social functioning.[41]
[35] 21 February 2019 ts 86.
[36] 21 February 2019 ts 104, ts 158.
[37] 21 February 2019 ts 105.
[38] 21 February 2019 ts 105 - ts 106.
[39] 21 February 2019 ts 106.
[40] 21 February 2019 ts 53.
[41] Illustrated by the respondent's evidence of numerous incidents of violence with his ex-partner, albeit only one which was proven, 21 February 2019 ts 107.
In my opinion, the learned Arbitrator accepted as credible the respondent's evidence in respect of the symptoms he was experiencing in relation to his psychiatric injury.
The respondent gave evidence in respect to every symptom identified by Dr Terace in his report other than in relation to a lack of appetite. Thus, there was only one variation in respect of the facts proven in evidence and the facts relied upon by Dr Terace in reaching his diagnosis.
In relation to Dr McCarthy, in my view, the following facts were not proven in evidence but may have had some relevance to Dr McCarthy's diagnosis of psychiatric injury:
(a)depression;
(b)socially avoidant;
(c)poor appetite;
(d)poor libido; and
(e)memory and concentration impairment.
I do not accept the appellant's submission that the respondent did not give evidence of moodiness, irritability, despondence or lack of energy or that he was argumentative. As set out above, in my view, that evidence was before the learned Arbitrator and accepted by him.
However, I do accept that the learned Arbitrator did not identify the variances in the facts proven in evidence and those relied upon, primarily by Dr McCarthy. I also accept that the role of the Arbitrator was to examine any material variation between the two in order to assess whether any unproven facts relied on by Dr McCarthy rendered his opinion inadmissible or of no or lesser weight and probative value.
However, it cannot be said that the Arbitrator is therefore precluded, as a matter of law, from giving any weight at all to the opinion of Dr McCarthy on the basis that there was no factual foundation in the evidence to support the opinion. Giving weight to Dr McCarthy's evidence in an evidential context in which a number of the foundational facts were proven, even though others were not, merely required an assessment of weight to be made by the learned Arbitrator, which does not raise an error of law. At most it may lead to a wrongful or doubtful finding of fact.[42]
[42] Atanasoska v Inghams Enterprises Pty Ltd [21].
If I am wrong in this regard, in any event in my view, any error made by the Arbitrator in assessing the expert evidence did not materially contribute to the Decision such that in the absence of such an error the Decision would have been or may have been different. I say this for the following reasons.
Whilst Dr Terace stated that the respondent barely exceeded the threshold of an Adjustment Disorder, he nevertheless made that diagnosis on the basis a number of symptoms which were all facts proven in evidence before the Arbitrator with the exception of lack of appetite. It was open to the Arbitrator to find, given the substantive corroboration and correlation of facts underpinning the opinion of Dr Terace with the proven facts in evidence, that the diagnosis was reliable and to give it weight.
Having regard to Dr Terace's opinion on the issue of causation, it was open to the Arbitrator to conclude that the respondent's pain symptoms and back injury had materially contributed to his mental state such that it had contributed to his contraction of his Adjustment Disorder.
Whilst not every underlying fact to the opinion of Dr McCarthy was proven in evidence at Arbitration, it was open to the Arbitrator to find that opinion reliable and to accord it weight given that the significant symptoms appeared to be a two year history of fluctuating symptoms of anxiety and depression in response to an identifiable stressor, being the development of low back pain, and the respondent's emotional distress associated with 'a significant impairment in his social and occupational functioning'.
Whilst the evidence of depression before the Arbitrator was certainly equivocal,[43] nevertheless there was strong evidence at Arbitration of the respondent's stress and anxiety, heightened emotional distress and significant impairment in his social and occupational functioning. The 'Opinion' section of Dr McCarthy's report on page 6 makes it clear that those particular factual matters were of significance to the diagnosis of Adjustment Disorder.
[43] 21 February 2019 ts 106.
The significant impairment in occupational functioning was self‑evident at Arbitration given that the respondent had not worked since September 2015.
The significant impairment in his social functioning was supported at Arbitration by the respondent's evidence that there had been numerous incidents of aggression/violence leading to the ultimate breakdown of his relationship with his ex-partner.
Whilst the facts of socially avoidant, poor appetite and libido or memory or concentration impairment were not facts proven in evidence, it was nevertheless open to the Arbitrator to place weight on the opinion of Dr McCarthy in circumstances where symptoms of significance were proven in evidence, and given that the opinion of Dr McCarthy was also supported by the expert opinion of Dr Terace, and was consistent generally with all other evidence before the Arbitrator.
In my opinion, it was therefore open to the Arbitrator, if the Arbitrator had undertaken the comparative exercise, to find that despite the variances in the facts proven and the foundational facts underpinning the expert opinion of Dr McCarthy, the case was nevertheless proved sufficiently so as to render Dr McCarthy's opinion valuable.
It cannot be said that the disparities between the proven facts and the foundational facts underpinning the opinion of Dr McCarthy are such that they would render that evidence unsafe or that the finding made by the Arbitrator was not open to be made.
A discrepancy in and of itself between the facts as proven and the facts assumed by the expert medical practitioner, does not inevitably lead to a position that the opinion of the medical practitioner should be afforded no weight.
As identified in the judgment of Heydon JA in Makita v Sprowles, it is enough if the case proved is sufficiently like the case assumed, to render the expert's opinion valuable.[44]
[44] Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [64].
Therefore, if there was an error of law made by the learned Arbitrator, rather than simply an error of fact, nevertheless it would have made no material difference to the Arbitrator's Decision for the reasons that I have articulated.
Leave to appeal is therefore refused and this ground is unsuccessful.
Grounds 2 and 3 of the appeal
Grounds 2 and 3 of the appeal are inter-related and assert that the learned Arbitrator erred in law in finding that the respondent's back injury was ongoing and that he remained incapacitated for work as at 24 October 2019, in the absence of any evidence as to the status of the respondent's injury or work capacity after 22 February 2019.
I raised with the appellant at the hearing of the appeal that I could not see a basis for asserting that an error of law in this regard had been made by the learned Arbitrator. This is because the Decision of the learned Arbitrator could only be interpreted on the basis of the evidence before him at Arbitration in February 2019. It could not be interpreted that the learned Arbitrator was making any finding of fact in relation to the status of the respondent's injury or capacity for work at any later date.
Indeed this point was conceded by the respondent at the hearing.[45]
[45] 11 March 2020 ts 15.
It appeared at the appeal hearing that the appellant was content if the court dismissed grounds 2 and 3 of the appeal, if it did so on the basis of clarifying the learned Arbitrator's findings.
In the avoidance of any ambiguity on this point, it is clear to me that the learned Arbitrator could only make findings, and only intended to make findings, in relation to the ongoing nature of the respondent's back injury and his incapacity for work on the evidence before the Arbitrator as at 22 February 2019.
The Arbitrator did not, in my view, make any findings as to the nature of the respondent's back injury, as to whether it was ongoing, or in relation to the respondent's capacity or otherwise for work, after 22 February 2019 and certainly not in October or November 2019.
Other than making the above clarification in relation to the interpretation of the findings made by the learned Arbitrator, I otherwise find that grounds 2 and 3 of the appeal do not raise a question of law and therefore leave to appeal is refused and those grounds are unsuccessful.
Ground 4 of the appeal
In my view this ground of appeal also does not raise an error of law.
The appellant contends that the learned Arbitrator erred in law in finding that the respondent suffered from back symptoms caused by two work incidents in March 2015 and September 2015 when the evidence was that the relevant back injury was sustained on 18 March 2015.
The respondent agreed with the appellant that there was only one injury which was simply aggravated in September 2015 and that no new injury arose at that time.[46]
[46] 11 March 2020 ts 16.
In my view, the learned Arbitrator clearly identified that there was only one compensable injury in relation to the respondent's back which was sustained on 18 March 2015. This finding was referred to at numerous paragraphs of the Arbitrator's Decision including at [2], [51(c)], [54], [78(b)], [78(c)], [79], [89], [100], and [134]. Thus, to the extent that the learned Arbitrator referred to an injury sustained by the respondent in September 2015, I find it to be an inadvertent error.
If I am wrong in that regard, and the Arbitrator made a finding of a back injury sustained by the respondent in September 2015, it is a wrongful finding of fact which is not an error of law.
In any event, in my view, it is clear when one interprets the Arbitrator's Decision as a whole, that he accepted that there was one compensable injury in respect to the respondent's back which was sustained on 18 March 2015. As I have stated, that position was accepted by the respondent at the hearing of the appeal.
As such leave is refused in respect to ground 4 of the appeal and it is unsuccessful.
Ground 5 of the appeal
Lastly, the appellant contends that the learned Arbitrator erred in law in finding that there were some degree of pressure being exerted on the respondent to return to his normal duties as soon as possible, notwithstanding his back injury, in circumstances where there was no evidence upon which such a finding could be made and such a finding was not material to the question in issue.
The respondent submitted to the court that there was evidence of the respondent which supported the finding made by the learned Arbitrator. The respondent also submitted that one of the reasons that the respondent was suffering anxiety was because of the pressure he said was being exerted on him to continue his normal working duties and this thus contributed to his psychiatric injury.[47]
[47] 11 March 2020 ts 18.
Firstly, I do find that there was evidence before the Arbitrator on which he could find that there was some degree of pressure being exerted on the respondent to return to his normal duties as soon as possible notwithstanding his back injury as follows:
(a)The team member review form of the appellant dated 21 July 2019 stated that 'at the end of the two weeks, we will require you to be fully fit to return to full duties. We will require a medical certificate stating that you are fully fit'.
(b)The respondent gave evidence-in-chief before the Arbitrator 'if you were to perform a physical activity like mine on a regular basis, without any change of duties, then you have to pace yourself. You have to be careful. To be careful is going against the natural duties of the employee towards the employer. Because when you are working for somebody who pays you, you have to perform at your best, not at your (indistinct)'.[48]
(c)The respondent gave evidence-in-chief before the Arbitrator that despite being certified for modified or alternative duties by his general practitioner the employer asked him to return to his normal duties.[49]
[48] 21 February 2019 ts 86.
[49] 21 February 2019 ts 93.
Therefore I find that there was evidence before the Arbitrator to make this particular finding of fact.
It cannot be said, in my view, that there was no evidence upon which such a finding could be made such that an error of law arises.
Secondly, whilst I accept the appellant's submission that such a finding was not material to the question in issue, namely whether the respondent suffered from a psychiatric injury caused by the respondent's compensable back injury, in my view making an irrelevant finding of fact does not raise an error of law.
Lastly, if I am wrong in that position, I find that it did not materially contribute to the Arbitrator's Decision such that in the absence of such a finding the Decision would have been or may have been different.
Therefore no error of law has been made.
Thus leave to appeal is refused in respect of this ground of appeal and it is also unsuccessful.
Orders
The following orders are made:
1.Leave to appeal is refused.
2.The appeal is hereby dismissed.
3.The appellant shall pay the costs of the respondent to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KR
Associate to Judge Wallace11 JUNE 2020
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