Department of Ageing, Disability and Homecare v Pye - [2010] NSWWCCPD 18

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Department of Ageing, Disability and Homecare v Pye [2010] NSWWCCPD 18
APPELLANT:		Department of Ageing, Disability and Homecare
RESPONDENT:		Simone Pye
INSURER:		Allianz Australia trading as Allianz - TMF
FILE NUMBER:		A1-004046/09
ARBITRATOR:	Mr C Messenger
DATE OF ARBITRATOR’S DECISION:		2 October 2009
DATE OF APPEAL DECISION:		25 February 2010
SUBJECT MATTER OF DECISION:		Psychological injury; relevance of ‘misperception’ as discussed in Townsend v The Commissioner of Police (1989) 25 NSWCCR 9 and State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; (2007) 5 DDCR 286
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		Oral
REPRESENTATION:		Appellant:	Smuts McKenzie
Respondent:	Kingston Swift
ORDERS MADE ON APPEAL:		Paragraphs 3 and 4 of the Arbitrator’s Amended Certificate of Determination dated 2 October 2009 are confirmed. Paragraphs 1 and 2 of the Amended Certificate of Determination dated 2 October 2009 are revoked and the following orders made in their place: “1. The Respondent is to pay the Applicant weekly compensation at the rate of $1,430.92 per week from 21 January 2009 to 9 March 2009 and at the rate of $1,430.92 per week from 24 April 2009 to 6 May 2009 such payments are payable pursuant to the provisions of section 36 of the Workers Compensation Act 1987. 2. The Respondent is to pay the Applicant weekly compensation at a rate of $389.10 per week from 7 May 2009 to 30 September 2009 and at the rate of $396.10 per week from 1 October 2009 to date and continuing pursuant to section 37 of the Workers Compensation Act 1987.” The Appellant is to pay the worker’s costs of this appeal.

BACKGROUND TO THE APPEAL

Simone Pye (‘the worker’), who is 40 years of age, commenced employment with the Department of Ageing, Disability and Homecare (‘the Appellant’) in July 2006. It seems that soon after the commencement of her employment she was appointed, in an acting position, as Regional Learning and Development Officer (‘RLDO’), Western Region based in Dubbo NSW. The worker occupied that acting position for a period of 10 months and, following a competitive recruitment process, was appointed to that position on a permanent full-time basis.

It appears that the worker performed her duties without incident throughout 2007 however began to experience difficulties with her workload and in her dealings with a fellow worker who had been appointed as an officer of the Department in February 2008. On 15 July 2008 the worker consulted her general practitioner Dr Heather Ticehurst. On that occasion she reported that she had experienced tiredness for a period of months, that she felt exhausted, that her work was constant, that she was busy all the time and that her work was “a constant battle”. The worker also reported a history of “a bit of conflict with a colleague”. The evidence reveals that colleague to be Ms Kay Liggett who had been appointed by the appellant as Regional Risk Management Advisor in February that year.

Thereafter the worker continued to experience difficulties by reason of her workload as well as problems encountered in communications with Ms Liggett. She consulted a psychologist Ms Marie Murphy in October 2008. That consultation had been arranged by reason of her experience of anxiety and other disabling symptoms which were reported to have occured by reason of her work circumstances.

On 4 November 2008 the worker consulted Dr Paul Roth, a colleague of Dr Ticehurst, on which occasion she again reported problems encountered with her workload. The worker was diagnosed as suffering a reactive depression and was certified as being unfit for work. The worker made a claim for compensation benefits following which weekly payments were made by the Appellant’s insurer until 21 January 2009 at which time she took leave of absence from her employment. That leave continued until 10 March 2009 at which time compensation benefits recommenced. Those payments continued until 23 April 2009 at which time liability was declined by the insurer and a notice concerning such denial of liability was forwarded to her in accordance with the provisions of section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

The worker remained absent from work by reason of alleged psychological injury and an Application to Resolve a Dispute (‘ARD’) was filed on her behalf with the Workers Compensation Commission (‘the Commission’) on 26 May 2009. The ARD alleged the occurrence of an injury on 4 November 2008 being a psychological injury. The description of the occurrence of that injury was described as “unreasonable and unmanageable workload. Bullying and harassment at work”. The worker sought orders in respect of a resumption of weekly payments. The dispute came before an Arbitrator for conciliation/arbitration in Dubbo on 19 August 2009. The arbitration did not conclude on that day and the hearing resumed by way of teleconference on 9 September 2009. The proceedings were recorded and a transcript has been produced and made available to the parties (‘T’). The Arbitrator reserved his decision following the completion of submissions put on behalf of the parties by counsel.

A ‘Certificate of Determination’ was issued by the Arbitrator on 1 October 2009, which certificate was amended on 2 October 2009. That certificate was accompanied by a Statement of Reasons (‘Reasons’).

THE DECISION UNDER REVIEW

The Amended ‘Certificate of Determination’, dated 2 October 2009 records the Arbitrator’s orders as follows:

“The Commission determines:
1. That the Respondent pay the Applicant weekly compensation for a period of 9 weeks (from 23 April, 2009 to 26 June, 2009) at the rate of $1,430.92 per week pursuant to Section 36 of the Workers Compensation Act, 1987.
2. That the Respondent pay the Applicant weekly compensation at the maximum Statutory rate for a worker with no dependants as adjusted from 27 June, 2009 to date and continuing under Section 37 of the Workers Compensation Act, 1987. Such payments to continue in accordance with the provision of the Workers Compensation Act, 1987.
3. That the Respondent pay the Applicant’s reasonable expenses pursuant to Section 60 of the Workers Compensation Act, 1987.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

An Application seeking leave to appeal against the Arbitrator’s decision was filed on behalf of the Appellant with the Commission on 28 October 2009.

ISSUES IN DISPUTE

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

(1)     determining that the worker had received an injury arising out of or in the course of her employment in terms of section 4 of the 1987 Act;
(2)     determining that the conduct of an officer of the Appellant at a time following the submission of the claim for compensation represented a breach of the worker’s privacy and constituted harassment in the workplace, and
(3)     in the manner of calculation of the award entered with respect to weekly compensation.

The issues as enumerated above have been taken from the written submissions provided in support of the appeal.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

The Appellant has submitted that the appeal should be conducted by way of formal hearing to enable oral argument and submissions. In support of that application the Appellant argues that its challenge to the Arbitrator’s determination concerning “injury” requires consideration of those principles which have been enunciated in the decision of the Court of Appeal in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 (‘Chemler’). It is put that the matters raised on appeal require “all submissions by way of hearing”. It is further argued (at [67] of submissions) that the Arbitrator failed to address the evidence of Ms Liggett. It is said that the Arbitrator’s manner of addressing the evidence was such that this appeal “should be dealt with by way of hearing”. The worker submitted that the appeal may proceed ‘on the papers’.

The documentation before the Commission includes all that evidence adduced before the Arbitrator; a transcript of the proceedings conducted at first instance including transcription of oral submissions put by counsel on behalf of both parties; written submissions provided by the parties to the Arbitrator with respect to the application before him, and written submissions prepared on behalf of each party with respect to this appeal. Notwithstanding the availability of that detailed material I was not satisfied that I had sufficient information to proceed ‘on the papers’. In the circumstances the matter was listed for hearing on 11 February last. Each party was again represented by counsel.

LEAVE

There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.

The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been meet, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

FRESH EVIDENCE

The Appellant at 2.4 of Part A of the Application brought with respect to this appeal (‘the Application’) seeks to adduce additional evidence and relies upon the provisions of section 352(6) of the 1998 Act. Reference is made in the course of submissions concerning the admission of that material to Rule 16.2(4)(c) of the Workers Compensation Commission Rules 2006 (‘the Rules’) and Practice Direction Number 6, each of which have relevance to the admission of fresh evidence or evidence in addition to or in substitution for evidence adduced before the Arbitrator. Section 352(6) of the 1998 Act provides:

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

The admission of additional evidentiary material is opposed by the worker.

The additional material which the Appellant seeks to adduce includes a document which is described as a “response to the Arbitrator’s decision”. That “response” is in separate parts, the first of which was attached to the Application. That first part is said to be authored by two officers of the Appellant namely Ms Jodie Bassett and Ms Sue Curley. That first part of the “response” comprises 5 pages each divided into two columns. To the left of the page is the heading, “Findings requiring further clarification” and to the right appears the heading “Response”. As suggested by the headings the left hand column contains a paraphrase of findings made by the Arbitrator in the course of his Reasons, and that which appears in the right hand column appears to comprise factual commentary which is intended, as submitted on behalf of the Appellant, to “address the issues pertaining to the Arbitrator’s findings concerning Respondent’s employment and workload which was found to be a causative factor to the Respondent’s psychological injury” (at page 6, 2.4 of Part A of the Application).

The second part of the “response” was forwarded to the registry of the Commission under cover of correspondence from the Appellant’s solicitors dated 29 October 2009. The “response” enclosed with this correspondence appears to be in the same form as that which accompanied the Appellant’s application. However, confusingly, the document is described as:

“Response dated 29 October 2009 authored by Ms Jodie Bassett, Regional Executive officer in conjunction with Ms Sue Curley, former Regional Executive Officer, Mr Phil Watterson (DRD Western), Mr Scott Griffiths (RD Western) and Ms Joanna Battersby (A/Director L&D).”

There is also a “schedule of fresh evidence” provided in that last mentioned correspondence which includes the following documents:
1.       Email dated 25 November 2008;
2.       Memorandum to Deputy Directors-General, Regional Directors, Executive Directors, Directors dated 24 November 2008;
3.       Learning and Development Budget Allocation Principals and Guidelines 2008/2009 dated November 2008;
4.       Learning and Development Directorate;
5.       Email dated 27 February 2009;
6.       Flowchart of the process for engagement of training contractors;
7.       Approved contractors 2008-2010;
8.       Specifications re contractors;
9.       Mail merge spreadsheet of approved contractors;
10.     Flexible Working Hours Agreement, and
11.     Record of hours worked by the Respondent from February 2007 to October 2008.

The Appellant has provided detailed submissions with respect to the admission of the additional evidentiary material which appear at [5] to [13] of “Appeal Submissions” which accompany the Application. Those submissions were amplified by counsel at the hearing of the appeal. Reliance is placed upon the decision of Fleming DP in McMahon v Anthony Lagana and Joseph Lavella t/as The Vessel “Nimble 2” [2003] NSWWCCPD 22 (‘McMahon’). The Commission, in the decision of McMahon, addressed those principles relevant to the exercise of discretion as granted by the provisions of section 352(6). The authorities relevant to the admission of “fresh evidence” and relevant to the refusal of the exercise of such discretion are there summarised.

The “response”, which was apparently composed by those officers of the Appellant identified in [19] above, is described in these submissions as being “a response… to the findings of the Arbitrator in relation to [the worker’s] workload and employment and [as such] was not capable of being tendered in the previous [sic] proceedings”. It is further put that the “response” was “prepared” by, among others, Ms Curley whose statement had been relied upon by the Arbitrator in his decision. It is argued that Ms Bassett and Ms Curley “are credible witnesses with the highest understanding of the Respondent’s workload and employment activities”. It is further argued that, had the “evidence” been available at arbitration, there was a “high degree of probability that the Arbitrator would have come to a different conclusion” and that the Arbitrator’s evaluation of the evidence of Ms Curley would have been, in a relevant manner, different. It is argued that the admission of the material is required in the interests of justice.

The question of admission of evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in proceedings before an Arbitrator was considered by the Court of Appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158; (2007) 4 DDCR 634 (‘Haider’). In the course of his judgment in Haider Basten JA (McColl JA and Giles JA agreeing) made reference to the terms of Practice Direction Number 6, in its then form, which made provision for procedural requirements where a party sought to rely upon fresh or additional evidence. His Honour proceeded to say at [41]:

“ This language appears to reflect the conditions which must generally be met before ‘fresh evidence’ is admitted: see Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. However, to limit the admission of ‘new’ evidence to such circumstances is to ignore the fact that the statute expressly provides an alternative to ‘fresh’ evidence by express reference to ‘evidence in addition to or in substitution for’ the evidence received below. To apply a test such as that set out in the Practice Direction, although introduced by the amelioratory words ‘in general’, is apt to give rise to error by treating the discretion as fettered in a way which it is not: see in relation to the use of the term ‘further’ evidence in s 75A(8) of the Supreme Court Act 1970 (NSW) as applicable in this Court, Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2005] NSWCA 319; (2005) 55 ACSR 1 at [98] - [108]. Further, it is to ignore the reduction of formality and technicality and the requirement to act according to equity, good conscience and the substantial merits of the case, as mandated by s 354(1)-(3) (see [15] above).”

It may be seen that the approach of the court in Haider to the construction and proper application of the provisions of section 352(6) strongly suggests the availability of a test which is “more flexible” (per Basten JA at [45]) than that which was reflected by the content of the practice direction. Leaving aside the submission which has been summarised at [22] above concerning the availability of the additional material which the Appellant seeks to adduce in this Appeal, it is clear that there is no argument available to the Appellant that the material could not reasonably have been obtained for tender in the proceedings before the Arbitrator. Whilst that remains a consideration relevant to the exercise of the discretion it must be determined whether, in the circumstances of the present case, it is just to admit the further evidence (see Nowlan v Marson Pty Ltd (2001) 53 NSWLR 116 per Heydon JA at 124). That involves an examination of all relevant circumstances including an inquiry as to the probative value of the material and the likelihood of there being a different outcome should the material be admitted. Those last two considerations are, of course, those matters which were addressed by the court in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160.

Given the relatively large volume of material which is the subject of the Appellant’s application it is proposed to deal firstly with that document which is described as a “response”.

I have attempted to describe the format of the response at [18] above. The Appellant appears to have extracted those findings or observations made by the Arbitrator with which it takes exception and has matched those findings or observations with what appears to be a narrative of factual matters, most of which have not been established by the evidence adduced before the Arbitrator. That narrative, it is stated by the Appellant’s solicitors, has been prepared by no less than five officers of the Appellant. It may be seen that the drafting of the “response” is the product of a joint effort by those individuals.

Procedure before the Commission is governed, in part, by the provisions of section 354 of the 1998 Act. In summary such proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits; the Commission is not bound by the rules of evidence and may inform itself in such manner as the Commission thinks appropriate; the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, and the proceedings need not be conducted by way of formal hearing. Notwithstanding the provisions as I have just attempted to summarise I have reached the conclusion that the Appellant, in seeking to adduce the “response” appears to treat the conclusions reached by the Arbitrator as being of little if any relevance to a determination of the rights of the parties to this appeal.

The Court of Appeal in Sapina v Coles Myer Limited [2009] NSWCA 71 (‘Sapina’) considered the nature of an appeal such as the present brought pursuant to section 352 of the 1998 Act (per Allsop P, Hoeben and J Beazley JA agreeing) where, following a consideration of relevant authority, it was stated at [56] and [57]:

“56. The Chief Justice in Chemler at [30] used the expression “true and correct view”. In the context of merits review of administrative decisions the phrase “preferable or correct decision” has developed a currency and lineage: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577; 46 FLR 409 at 589; 419. Given the Chief Justice’s reference to “merits review” at [28], we would not take his language at [30] as intended to be other than synonymous with the “preferable or correct decision” as a long-used and well-understood description of the task of a body undertaking merits review: Aronson, Dyer and Groves Judicial Review of Administrative Action, 3rd Ed (2004) at 158; and Denn v Midland Brick Co Pty Ltd [1985] HCA 26; (1985) 157 CLR 398 at 419. We will use the form of words used by the Chief Justice in this sense.
57. Whilst the new regime of dealing with workers’ compensation claims must be examined in its own statutory context, it is important to appreciate that the legislature has used a phrase that had in the prior regime, a tolerably settled meaning. Section 36 of the Compensation Court Act used the phrase “review the decision”. Subsections 352 (1) and (5) of the WIM Act make clear that the “appeal” is to be by way of review of the decision. The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider that an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, “to decide whether the original decision is wrong [that is to] decide what is the true and correct view.” This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.”

As stated by the Court in Sapina (at [57]), “The decision under appeal is not to be ignored…”. The “response” is drafted with the object of negating those observations and findings made by the Arbitrator. The document, apparently co-authored by the five named officers, may not be characterised as evidence of one deponent. It is plain that should such a document find its way into evidence there would be no practical means by which the worker could test the authors as to its contents. Notwithstanding the scope permitted by the legislation for informality I have reached the view that the document is not testimony and is of little if any probative value, and its admission would greatly prejudice the worker in conduct of this appeal. The Appellant appears to assume that those principles which require finality in litigation may be ignored. I conclude that the “response” should not be admitted on this appeal and I summarise my reasons as follows:

1. The content of the document and the manner of its creation are such that it cannot be said to be fresh or additional evidence, but is rather a series of factual assertions jointly made by numerous persons intended as a response to the Arbitrator’s decision. Those assertions are not otherwise supported by any evidence. The document is thus of little if any probative value.
2. The Appellant’s submission noted at [22] above demonstrates a fundamental misunderstanding by the Appellant of the nature of proceedings before the Commission. The need for finality of litigation is a consideration of public interest which is relevant to all proceedings, including those before the Commission.
3. The Arbitrator’s decision and the evidence upon which it was founded are not to be treated simply as a trial hearing and disregarded. Nor must it be assumed by parties to proceedings in the Commission that an appeal, as a matter of course, is to be conducted as a de novo hearing (refer Sapina at [57]). As was observed by Roche DP in Matar v Zeineddine [2008] NSWCCPD 51 (at [21]), “Further, it cannot be overemphasised that arbitrations are not a trial run where parties can see how things turn out and then attempt to introduce on appeal evidence that was readily available at the time of the arbitration.”
4. The admission of the document would give rise to significant prejudice to the worker given that there is no practical or realistic method to afford her an opportunity to test the matters which have been compiled by five individuals.

5. There is nothing put on behalf of the Appellant that convincingly suggests that each of the many matters of fact contained in the document could not, notwithstanding due diligence, have been obtained at a time to permit presentation before the Arbitrator.

6. I reject the Appellant’s submission that there is “a high degree of probability that the Arbitrator would have come to a different conclusion if this evidence was available at the arbitration”. I have already rejected the Appellant’s characterisation of the document as constituting “evidence” and, by reason of its form and content, I have earlier expressed a view that the document lacks probative value.

The balance of the documentary material which appears in the Appellant’s “schedule of fresh evidence” appearing at [20] (some of which are nominated as attachments to the “response” which I have refused to admit) are each business records or compilations of data founded upon business records all of which may be assumed to have been in the custody of the Appellant at the time of commencement of proceedings. There is no satisfactory explanation for the Appellant’s failure to present that evidence before the Arbitrator. It must be assumed that, with the exercise of due diligence, such material could have been garnered for presentation in evidence at that time. The volume and complexity of those documents are such that, should they be admitted, considerable prejudice would be occasioned to the worker in the conduct of this appeal. The admission of that material would not, in my view, give rise to likelihood of there being a result on this appeal different to that which was determined by the Arbitrator. I am not satisfied that the interests of justice require that the Commission’s discretion be exercised in favour of the admission of that material.

For the reasons I have attempted to outline above the Appellant’s application for the admission of additional evidence on appeal is refused.

EVIDENCE

The totality of the evidence before the Arbitrator took the form of documentary material. No oral evidence was given at the hearing. At [7] of Reasons there appears what is said to be a summary of the evidence that has been admitted. That summary is not an accurate description of that material which had found its way into evidence. The items enumerated in (5) and (6) were written submissions provided on behalf of the parties and do not constitute evidence. The transcript reveals that the evidence relied upon by the worker comprised the Application to Resolve a Dispute dated 19 May 2009 together with attached documentation, an Application to Admit Late Documents dated 18 August 2009 which has attached to it a report of Ms Kath Skinner, psychologist, dated 13 August 2009. Also relied upon by the worker was a supplementary statement made by her dated 27 July 2009, which had been admitted into evidence at the hearing. Those last two items had not been mentioned in the summary to be found at [7] of Reasons.

The Appellant relied upon those documents attached to a Reply filed on 19 June 2009 together with the clinical notes of Dr Wayand, which were attached to an Application to Admit Late Documents dated 18 August 2009. There was, it seems, a second Application to Admit Late Documents bearing the date 18 August 2009 which had attached a series of documents which were described by the Appellant’s counsel as being “records of the Respondent employer in relation to the Occupational Health and Safety aspects of the employment situation”. Those documents were in evidence before the Arbitrator.

Worker’s evidence

The documents attached to the worker’s ARD included a large volume of material that she had received from the insurer which had been enclosed with the insurer’s notice issued pursuant to section 74 of the 1998 Act dated 23 April 2009. That material included a lengthy and detailed report dated 6 January 2009 by Ms Carmen Betterridge, consultant psychologist. Ms Betterridge had been retained by the insurer to conduct what is described as a “pre-liability assessment”. That assessment, having regard to its content, appears to be forensic in character rather than being a report compiled by a qualified psychologist which addresses matters of history and diagnosis in the context of the writer’s professional area of expertise. The report or assessment compiled by Ms Betterridge contains lengthy statements made by the worker and a number of her fellow workers. Those statements had been compiled by Ms Betterridge during the course of meetings arranged with the various deponents. Some statements had been confirmed by provision of signed copies which post date the report.

There is a statement dated 6 January 2009 made by the worker, which forms part of Ms Betterridge’s assessment. That statement is 52 paragraphs in length. It is stated at [2]:

“I believe that there are three contributing factors in my current distress; firstly the bullying and harassment of me by a colleague, Ms Kay Liggett, secondly, the unreasonable and unmanageable workload and finally, the failure of my manager, Ms Sue Curley, Regional Executive Officer, DADHC to address problems regarding the bullying and harassment and unreasonable workload, appropriately.”

The worker in that statement describes a scheduled meeting which she had with her co-worker Ms Liggett for which 30 minutes had been allocated. That meeting, by reason of persistent questioning on the part of Ms Liggett, lasted approximately 90 minutes. The worker’s efforts to terminate the meeting earlier had been unsuccessful and ultimately she was forced to demonstrate that the meeting was over by standing and opening the door. The worker states that Ms Liggett’s behaviour had caused her annoyance on subsequent occasions “as she had been taking up so much of my time, which due to my workload, I could not afford”.

The worker further states that a meeting between herself and Ms Liggett and the Regional Executive Officer, Ms Curley, was arranged and took place on 7 April 2008 at a café. The worker states concerning the outcome of that informal meeting, “I was unhappy as I felt that the issue had not been sufficiently explored or discussed and felt that they believed the issue to be resolved. I did not want to get confrontational about the issue however and therefore I ‘let it go’ with the hope that things would improve.”

The worker states that problems continued with Ms Liggett and that she had problems in relation to her workload. The worker felt challenged by Ms Liggett concerning the performance of her duties and the worker felt that Ms Liggett was “overstepping the boundaries of her role in questioning these things as they were not her responsibility and I do not believe that I had to justify myself in this regard”.

The worker describes at [17] of her statement an incident which occurred on 25 August 2008 during a meeting with Ms Curley, Ms Liggett and Ms Jane Miller. On that occasion the worker was questioned aggressively by Ms Liggett concerning the provision of a data projector. The worker describes Ms Liggett’s approach as being an “attack”. The following day during discussion with Ms Curley the worker received an apology from Ms Curley concerning the manner in which Ms Liggett spoke to her on the previous day. The worker states that Ms Curley informed her that she was “amazed”. The worker stated that the behaviour witnessed was similar to that which she had been experiencing “all year”, following which it is stated that Ms Curley “acknowledged to me that she had not taken my concerns seriously and acknowledged that she could have handled the situation better”.

The worker states that ongoing conflict with Ms Liggett caused her to struggle in the course of her work and for that reason she took three weeks leave in September 2008. Before taking that leave the worker described her workload as “furious” and it is stated that she was in tears daily and had, for weeks, been unable to sleep by reason of worry and anxiety.

On 20 October 2008 a “two hour conflict resolution meeting” took place between Ms Curley, Ms Liggett and the worker. It was decided at that meeting that those present were to formulate “a proactive plan to manage the conflict but the original date was change [sic] and was put on the back burner due to the workload and other impending issues by Ms Curley”.

The worker states that following that meeting Ms Liggett was absent from work for a period of two weeks. It is stated that the worker “hit the wall” at the beginning of November 2008. The worker states, “I felt paralysed by all the work, thought of dealing with Ms Liggett and felt completely isolated in my role. I left work upon medical advice”. It was further stated:

“I believe that the accumulation of unsustainable workload, numerous and continued changes of staff at Central Office level and the conflict with Ms Liggett, the isolating role (only one person in my region – not a team) were all combined so that my anxiety was progressively building so that I was simply no longer able to withstand the difficulties.”

The worker describes her workload as being “unsustainable, unreasonable and unmanageable”. The worker spoke to the Regional Director, Mr Griffiths concerning workload in early 2007 at which time she was acting in the position of RLDO. The worker drew Mr Griffith’s attention to the fact that there were “no business rules, no procedures manuals or guides for me to refer to that would support a new person in this role”.

The worker states that the problems in relation to workload had been “exacerbated” by the “revolving door” of staff at all levels in the Central Office. Detail of those alleged staff changes is to be found at [31] of her statement.

The worker further states that a “huge” increase in funding gave rise to a need to “roll out” or deliver a greater number of courses across the region. It is stated that once funding becomes available there is a need to spend that funding during the relevant period “in order to secure it for the future”.

The worker’s statement includes details concerning problems encountered with administrative assistance. By reason of funding constrains the worker does not have a dedicated administrative assistant but needs to share the services of one such officer. It is the worker’s belief that her position requires a full-time administrative officer to support the role. Those changes had been the subject of complaint by the worker to Mr Griffiths and a copy of such complaint had been forwarded to Ms Curley.

The worker’s statement between [47] and [50] summarises her views that Ms Curley had “provided a lack of effective guidance and support to my role and in relation to the bullying and harassment I have experienced with Ms Liggett”.

There is a statement made by Ms Susan Curley dated 23 December 2008 which accompanies the assessment of Ms Betterridge. That statement is 59 paragraphs in length. Ms Curley acknowledges in that statement that the worker’s workload is “very high” but states “it is not excessive but rather appropriate given her grade level. Ms Pye’s workload is certainly manageable and reasonable, which is further indicated by the current Acting RLDO whom [sic] has reported managing the role without undue difficulty”. It is also acknowledged by Ms Curley that the worker has expressed concern regarding her ability to manage her workload. It is stated that a number of strategies to support the worker had been put in place. Ms Curley identifies difficulties in the worker’s “work processes” including “being very detailed (excessively) in her written and emailed communications, not allowing her time to cover all job responsibilities efficiently”.

Ms Curley acknowledges in her statement that there are a number of factors “which may have caused Ms Pye some concern in the past three to four months which could have exacerbated her workload concerns”. Those matters are elaborated between [6] and [9] of the statement.

Ms Curley states that the worker “does not appear to manage change very well” and that she “may not be utilising effective strategies to manage her workload”. These factors, it is stated by Ms Curley, “may contribute to Ms Pye’s level of distress at the present time”.

Ms Curley in her statement confirms that the worker was “disappointed” that she no longer has her full-time administration assistant to support her. Ms Curley states that her belief is that the worker “may not be working as effectively at managing the workload, rather than the workload being ‘unmanageable’”.

Ms Curley expresses the view that she considers that she had “approached the situations to the best of my ability and that there is likely little else that could be changed. It may be the case that I needed to be more forthright with Ms Pye and be more directive from the beginning, however I would also suggest that up until the present point in time, she was satisfied to manage the difficulties on her own terms”. Ms Curley states that the worker’s communication style “can be somewhat abrupt and she does not easily accept the opinions or perspectives of others”.

Ms Curley states, “Ms Pye appears to me to be very sensitive to negative feedback, whereby even following relatively innocuous comments, she is defensive, takes it ‘poorly’ and personalises the comments unreasonably. It has also appeared to me that Mrs Pye is somewhat rigid and inflexible in her communication and work approach. I am of the opinion that this personality feature has likely contributed to the interpersonal difficulties she has reported experiencing with Ms K Liggett”. Ms Curley proceeds to state that in the few weeks before she ceased work the worker appeared to be “not coping” and that she was “notably distressed at work”.

Ms Curley expresses the opinion at [29] that “there are two primary factors causing Ms Pye to go off work: “her workload (as detailed above) and an ongoing conflict matter with her colleague Ms Kay Liggett”. Ms Curley, between [30] and [48] of her statement addresses the conflict, as reported by the worker, with Ms Liggett. Ms Curley states specifically that she does not recall telling the worker that she was concerned regarding Ms Liggett’s “aggression” towards her (the worker) at the time of the discussion concerning provision of the data projector. Ms Curley describes her observations and her attempts to resolve conflict between the worker and Ms Liggett.

Ms Curley states that, following the worker’s cessation of work, a Workers Compensation Medical Certificate in respect of the period 4 November 2008 to 31 January 2009 was provided. Ms Curley makes the following general comment at [56] of her statement:

“I was aware that Ms Pye was under “stress” ever since I commenced working as Regional Executive Officer in March 2008. It appeared to be exacerbated as time progressed, despite our ongoing efforts to address her identified stressors: the workload and the conflict with Ms Liggett.”

A statement by Ms Julie Sedon dated 14 January 2009 accompanied the assessment of Ms Betterridge. Ms Sedon is a colleague of the worker whose position with the Appellant is that of Manager Community Access. Ms Sedon records that she has observed that the worker is “generally very busy, however a colleague offered to assist Ms Pye meet some of the requirements of her role and she refused”. It was Ms Sedon’s expressed view that the worker would not accept assistance if it was offered. The statement includes the observation that, “Ms Pye appears to get along well with her colleagues”. Ms Sedon expresses the view that the worker’s approach to communication “is very formal”. The statement of Ms Sedon is generally supportive of the role adopted by Ms Curley concerning the difficulties encountered by the worker.

The report of Ms Betterridge includes notations concerning an interview conducted by her with Dr Roth, the worker’s treating general practitioner. It is noted that Dr Roth stated in the course of interview that the only indentified difficulties in the worker’s life appeared to involve work. Dr Roth had been informed by the worker that her workload was too great for one person to undertake. Dr Roth is recorded as having said that there were “strong anxiety features” of the worker’s condition but he declined to suggest a diagnosis. Dr Roth is further noted to have stated that it would not be possible for the worker to return to the same work environment if the colleague with whom the conflict existed was also present.

Ms Betterridge expresses the view in the assessment that at the time the worker went off work and at the time of the preparation of the assessment an appropriate diagnosis of the worker’s condition was “Adjustment Disorder with Mixed Anxiety and Depressed Mood (classification 309.28) as defined by the Diagnostic and Statistical Manual of Mental Disorders, forth addition, text revision”. Ms Betterridge proceeds to assert that, based on available evidence, work is not a substantial contributing factor to the worker’s current distress. Ms Betterridge asserts that the worker has not been subjected to bullying or harassing behaviour by Ms Liggett, but has experienced a strong negative and personalised reaction to seemingly realistic and standard collegial interactions with Ms Liggett. The view is expressed that whilst the workload of the worker is acknowledged as being high it is reasonable and manageable. Ms Betterridge expresses the view that support and guidance provided to the worker by Ms Curley was appropriate. It is also stated that the worker’s pre-existing personality features and communication style have acted to predispose her in terms of vulnerability to distress.

The report compiled by Ms Betterridge included an observation that the worker demonstrated “no obvious signs of thought disorder or bizarre thinking patterns”.

The section 74 Notice which was attached to the worker’s ARD also included an investigation report compiled by All States Investigations dated 2 April 2009 which was addressed to the Appellant’s insurer. That document contained a number of documents including a summary of an interview with Ms Liggett and a copy of the statement by that individual which was recorded on 31 March 2009. Ms Liggett in that statement, which takes the form of a record of interview, declined to provide her date of birth, her address and her marital status. Ms Liggett stated that she did not want to disclose her address and date of birth as that information may be obtained by the worker. Ms Liggett also asserted that her marital status was not relevant “to this interview”.

That record of interview addresses the nature of the work performed by Ms Liggett and her dealings with the worker. The general tenor of that interview was that Ms Liggett was aware of conflict between herself and the worker and of efforts to mediate and resolve problems which existed. Ms Liggett generally denied that she questioned the worker aggressively and stated that she denied and was unaware that her tonal manner made the worker very upset. These responses in the course of interview were made in the context of the exchange between Ms Liggett and the worker concerning provision of the data projector. When asked by the interviewer whether Ms Liggett’s dealings with the worker could be describes as bullying or harassment Ms Liggett replied “No, Ms Pye has at times been over sensitive in matters related to or involved in training and development. I have developed progressive working relationships with Ms Miller, Acting Learning and Development Coordinator colleagues, staff, direct reports and managers.”

Included in the voluminous material attached to the section 74 Notice is a report, described as a Supplementary Assessment, dated 27 March 2009 signed by Ms Betterridge addressed to the Appellant’s insurer. That report notes “that Ms Pye prohibited Ms Kay Liggett, Risk Management Advisor, Western Region, DADHC, or Ms Jane Miller, Administration Assistant, Western Region DADHC, from being contacted to provide a statement in relation to the current workers compensation claim”. That report also contains a summary of discussions had between Ms Betterridge and Ms Marie Murphy the worker’s treating psychologist. A report of Ms Murphy is relied upon by the worker and is summarised hereunder. The opinion as to diagnosis expressed by Ms Betterridge in her earlier report is confirmed at page 7 of the supplementary assessment of report dated 27 March 2009. Much of that report is devoted to what appears to be a factual analysis of the various descriptions of the worker’s employment conditions and the behaviour of fellow workers including Ms Liggett and Ms Curley. The report also purports to address the question of identification of a “contributing factor to injury”. The view is expressed that “there is a lack of evidence proving that she has been subjected to bullying and harassing behaviour by Ms Liggett”. Ms Betterridge also makes the observation that “Ms Pye’s workload is acknowledged as being high and of a Grade 7-8 level, it is still identified as reasonable and manageable”. Ms Betterridge proceeds to state that “in the light of Ms Pye’s pre-existing personality and psychological features, it would appear that these factors are not major contributing factors to her distress, but likely served to exacerbate her ongoing distress”. It is further opined concerning Ms Curley, that “Ms Curley has acknowledged Ms Pye’s difficulties and provided ongoing support to her throughout the past nine months in relation to her alleged conflict with Ms Liggett and alleged unmanageable workload. There is a lack of evidence to suggest that Ms Curley has not provided adequate support and guidance to Ms Pye but rather, it would appear that Ms Pye’s pre-existing personality features and communication style have acted to predispose Ms Pye in terms of vulnerability to distress”.

A report dated 21 April 2009 prepared by Dr Janelle Miller, consultant psychiatrist, addressed to the Appellant’s solicitors, which report is referred to in the insurer’s section 74 Notice, is in evidence. That practitioner examined the worker on 31 March 2009 at which time a history consistent generally with the matters recorded in the statements referred to above was obtained. Dr Miller was of the view that the most likely diagnosis was “a major depressive episode”. That opinion was founded upon the worker’s description of a range of “typical depressive symptoms including frequent tearfulness, irritability, loss of enjoyment in activities, anxious ruminations, decreased motivation, prominent fatigue, sleep disturbance, loss of confidence and self-esteem, impaired concentration, and social withdrawal”. Reference is made by Dr Miller to the conflict, which is described as “a fairly innocuous conflict”, between the worker and Ms Liggett. Dr Miller expressed the view that the worker’s “sensitivity about this matter is more likely to be a result of her depressed state, rather than it being a substantial cause. If the Applicant had not become depressed, I expect this conflict could have been resolved in the ordinary manner”. Dr Miller proceeds to state under the heading “Causation”:

“More significantly, the Applicant indicated there was increasing workload, high staff turnover, changing directives, insufficient resource and lack of adequate managerial support to perform her tasks to the required standard. If the situation was as the Applicant described, then her employment could have been a substantial contributory factor to the onset of her depressive episode. However, in the statement to Ms Betteridge, the manager (Ms Curley) does not support Ms Pye’s assertion that the workload was excessive over the relevant period, although she does acknowledge that it could become “very high” with the proposed changes. She characterises the problem as follows:

“…Ms Pye may not be working as effectively at managing the workload, rather than the workload being ‘unmanageable’.”

The manager’s account of the work practices in her area is unlikely to be entirely impartial, so it is difficult to say how reasonable her characterisation of Ms Pye’s situation is. At face value, a high workload carries some inherent risk of causing psychological harm, even if it is apparently well managed by the other employees.

It is also likely that as her depression became more severe, she would have found it increasingly difficult to cope with the routine demands of her position (even if these were not objectively excessive).”

Dr Miller expressed the view that the worker was “currently unfit for work”.

The worker relied upon the clinical notes produced by the general practice consulted by her which is described as “Dr Weyand’s Surgery”. The consultation with Dr Ticehurst, which occurred on 15 July 2008 and referred to at [2] above, is recorded. An entry dated 4 November 2008 by Dr Paul Roth records a long discussion concerning work conditions. The following notation is made “basically understaffed for the geographical area she has to cover and has developed burn out after being in the job for 18 months”. A notation is also made “has a reactive mild-mod depression”.

The clinical records of the general practice record a consultation, which occurred on 21 November 2008, where Dr Roth was consulted. At that time Dr Roth recorded “no evidence of depression”. The worker reported that she was anxious about going back to work. Dr Roth provided a certificate for two further weeks absence from work. The reason for visit was noted as “workplace stress”.

The worker again consulted Dr Roth on 2 December 2008 as recorded in the clinical notes. The records reveal the worker reporting at that time that she was “worried about returning to work and gets sweaty and tachycadic even thinking about it”. The worker reported that she had “too much work for any one person” and reported that she had been “bullied and harassed by one of her co-workers”.

The worker relied upon a report of Dr Paul Roth dated 24 February 2009 which had been prepared by that practitioner in support of the worker’s compensation claim, in particular her application seeking a review of the insurer’s decision to refuse compensation benefits. Dr Roth noted the history of alleged bullying by a co-worker, an unrealistic workload and a lack of guidance from Central Office in relation to performance of work. Dr Roth described the worker’s psychological distress as being “depression and anxiety with some features of PTSD”. The last paragraph of that report states:

“The harassment by your co-worker as you described is the major factor, with your employer’s inability to provide a safe outcome for you, coupled with the unrealistic workload and poor guidance from central office are also contributors.”

A report dated 18 February 2009 from Ms Marie Murphy, psychologist, was relied upon by the worker. That report records that the worker first presented for counselling on 24 October 2008. The history as given is recorded and that included a report of bullying and harassment from a colleague, difficulty communicating with that colleague and a description of that colleague as being “confrontational and interrogating in subtle ways”. It is also reported that efforts by her manager to resolve these problems “were really not appropriate or did not work”. Ms Murphy also recorded that the worker had been caused stress and anxiety by reason of the provision of work without proper communication between herself and her superiors. Ms Murphy was of the opinion that the symptoms displayed by the worker “clearly meets the criteria for PTSD”. Those matters taken into account included traumatic events, re-experiencing intrusive distressing thoughts, avoidance of people, places and events associated with the trauma together with physical symptoms, namely sleep problems, difficulty concentrating and irritability. It was Ms Murphy’s view that the worker would probably be fit for work if she were in a different work environment. A gradual return to work program was suggested. Ms Murphy also stated that a return to her position as it currently stands would be detrimental to the worker’s health.
The worker relies upon a further statement which she made dated 2 March 2009. That statement takes the form of a reply and commentary upon the reports of Ms Betterridge and the documents enclosed with those reports. Detail of this statement, where relevant, is addressed below.

A statement by Ms Melanie Albert, former administration officer employed by the Appellant, dated 21 February 2009 was relied upon by the worker. That statement outlines the significant work demands of the worker’s position with the Appellant as well as the need for administrative assistance.

As noted at [32] above the worker relies upon the evidence of Ms Kath Skinner, psychologist and mediator, as appears in her report dated 13 August 2009. Ms Skinner records that the worker was referred for assessment and treatment by her general practitioner. The first consultation took place on 29 April 2009 at which time a history of bullying, harassment and interrogation in the workplace was stated. Ms Skinner further records that there was no positive or constructive outcome of attempts by management to resolve the differences which existed between the worker and her co-worker. The worker further reported that she “started to lose confidence in her ability to function appropriately in her position”. It was Ms Skinner’s opinion that the worker suffered “moderate features of depression, anxiety (which peaks to the point of panic in response to specific persons from her workplace) and psychological stress”. It was earlier noted that the worker’s general practitioner had referred his patient for management of reactive depression and anxiety with features of PTSD.

As noted above at [32] a statement dated 27 July 2009 made by the worker was admitted into evidence by the Arbitrator at the hearing. This statement relates to events which have occurred since February 2009 and concerned numerous communications or attempted communications between Ms Curley and the worker. The attempted communications include alleged attendance at the worker’s private residence by Ms Curley. The relevance of this evidentiary material is addressed hereunder.

Appellant’s evidence

The documentary evidence relied upon by the Appellant was enclosed with a Reply filed on its behalf with the Commission under cover of an Application to Admit Late Documents on 19 June 2009. That documentary evidence is identical to that which is relied upon by the worker as summarised above. As noted above at [33] the Appellant also relied upon the contents of the clinical notes from Dr Wayand’s practice and that material attached to an Application to Admit Late Documents as earlier described. The content of that material is referred to, where relevant, below.

PRELIMINARY MATTERS

As noted at [32] above the worker tendered in evidence a supplementary statement made by her dated 27 July 2009. That tender was by consent. That statement contains detail of events which are alleged to have occurred since the commencement of these proceedings. Those events include detailed allegations concerning attempts by Ms Curley to contact the worker. It is this alleged conduct which is addressed by the Arbitrator at 24 of his Reasons where he stated:

“The personal approaches by Management to the Applicant at her home are in my view unreasonable and are a breach of privacy. There appears to be no reasonable grounds or urgency to make direct contact with the Applicant as an Injury Management Rehabilitation Co-ordinator based at Orange had been engaged to assist the Applicant with rehabilitation.
These further stresses are further incidents of harassment which are not in my view reasonable behaviour and cannot be anything other than a real event which occurred at the Applicant’s home and direct phone calls to the Applicant’s private phones.”

At the hearing of this appeal the parties were invited to make submissions concerning the relevance of the content of the worker’s supplementary statement at which time the Commission was informed that there had been no amendment sought by the worker with respect to her allegations of “injury”. The parties accept that the statement can be of no relevance to the issues raised and an indication was given that the worker was prepared to “withdraw” that statement. Such a course was not, in my view, appropriate given the state of the record and the Arbitrator’s reliance upon that material in reaching his decision which is the subject of the present review.

I have considered the content and relevance of the supplementary statement below at [100] and [124].

SUBMISSIONS

Submissions put before the Arbitrator

The Appellant relied upon amended written submissions dated 31 August 2009. Those submissions remain with the Commission’s papers concerning these proceedings. The Appellant made reference to and amplified those submissions during the course of the teleconference which took place on 9 September 2009. Those submissions summarised the nature of the claim, the “facts and allegations” and the medical evidence.

The Appellant relied upon a number of authorities in support of its argument that the facts establish that the worker’s “perceptions were not about real events”. It was accepted by the Appellant that the worker had “a significant problem” but that such was not “related to her employment”. It was asserted that, having regard to the authorities, there had been no injury received in the course of her employment. The authorities cited in support of argument included Townsend v The Commissioner of Police (1989) 25 NSWCCR 9 (‘Townsend’); Gross v The Health Department of NSW (unreported Wright C 13 March 1992) (‘Gross’); Chemler and Sydney South West Area Health Service v Sharma [2009] NSWWCCPD 90 (4 August 2009).

Those submissions appear to acknowledge that the worker’s workload was “heavy” but that it was “commensurate with the [worker’s] grade, expertise and experience”. The argument was advanced that the workload “was not such as to cause psychological injury”. It is put that the worker was “coping well before Ms Liggett came to the department”.

With respect to the conflict between the worker and Ms Liggett, the evidence of Dr Miller is adopted in the course of those submissions which stated that the worker’s “account was a fairly innocuous conflict around the respective roles and boundaries”. It was argued that such behaviour “was not bullying and harassment”. It was on these bases that it was asserted that the worker’s perception was not of “real events”.

Reference is made in the course of these submissions to the Code of Conduct which included definitions of “bullying” and “harassment”. It is asserted that there is “no evidence” that the worker was in fact subject to bullying and harassment in the workplace as it is described in the Code of Conduct “or otherwise”.

The submission is put that the response of Ms Curley was “appropriate”.

The worker’s submissions before the Arbitrator were in written form and those arguments were supplemented by oral submissions at the hearing on 19 August 2009 and during the course of teleconference conducted on 9 September 2009. Those submissions addressed the evidence in detail and those written submissions remain with the Commission’s papers.

The worker argued that there “is no dispute the [worker] suffered injury” and that her “exposure to a heavy workload, conflict with Ms Liggett and a failure of management to deal with the problems thus created for this [worker], contributed to the injury”.

Reference is made to the decision in Chemler and it is put that that decision is authority for the proposition that “even a misperception of real events can satisfy the test of injury”, in the relevant sense.

Submissions on this appeal

Accompanying the Appellant’s application with respect to this appeal are extensive written submissions which make detailed reference to the Arbitrator’s findings and challenge the Arbitrator’s finding of injury. The thrust of those submissions is that the Arbitrator had erred when addressing the conflict found in the evidence and that he had erred in concluding that the “events” noted by him at [43] of Reasons represented “real events”. This appears to be a challenge founded upon suggested factual error.

Reference is made in the course of those written submissions to the decisions of Chemler and Townsend and it is put that the Arbitrator had erred in law in the manner of applying relevant principle to the facts. The approach which is adopted by the Appellant in the course of these submissions represents a challenge to the Arbitrator’s factual findings concerning the four “events” found by him to be relevant to causation of injury, as well as error of law as noted. The Arbitrator’s reasoning processes are criticized and the point is made that there is no reference in the course of his reasons to the statement made by Ms Liggett.

The second ground stated in those submissions concerns “employer contact at home”. These submissions address those matters raised in the worker’s statement referred to in [75] above. Given my view as to the relevance of that statement it is convenient that I address these submissions in more detail hereunder.

The third ground relied upon by the Appellant in those submissions relates to a suggested error on the part of the Arbitrator with respect to his calculation of the worker’s entitlement to weekly benefits. These submissions are essentially arithmetical and are dealt with below.

The worker’s Notice of Opposition to this appeal filed with the Registry on 8 December 2009 is accompanied by written submissions which deal with each ground raised by the Appellant. The Arbitrator’s reasoning is supported in the course of those submissions and in particular it is put that the Arbitrator’s findings of fact were open to him on the evidence and that his findings were correct. It is argued that the Arbitrator’s application of principle as found in the various authorities, in particular as stated in Chemler, was correct. The worker draws attention to the judgment of Basten JA in Chemler and emphasis is placed upon his Honour’s reliance in the course of his reasons upon the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. It is argued that the “events” identified by the Arbitrator in the course of his reasons are “real events” and that the Arbitrator’s expressed acceptance of the evidence of the worker was open to him and represents a correct evaluation of the evidence in the case of conflict.

The worker’s submissions deal with argument raised by the Appellant founded upon the contents of the supplementary statement referred to in [75] above. As indicated that matter is addressed hereunder.

The worker’s submissions between [61] and [64] address the question of proper quantification of the worker’s entitlement to weekly compensation. These submissions address the facts concerning receipt by the worker of voluntary payments and the arithmetic calculation of entitlement founded upon an assumption of continuing total incapacity. These matters also are addressed hereunder.

Submissions put on hearing of appeal

Counsel appearing on behalf of the Appellant sought to amplify the written submissions. Those supplementary submissions may be summarised as follows:

(i) Counsel stated that the Appellant’s major complaint was that the Arbitrator’s conclusions had been reached without any proper analysis of the evidence. The argument as advanced appears to challenge the Arbitrator’s findings upon the basis of his failure to give adequate reasons for his conclusions of fact. It was put that the Arbitrator had “simply accepted the worker’s case”. It was emphasised by counsel that the Arbitrator did not, in the course of his reasons, acknowledge the evidence contained in the statement of Ms Liggett. It was suggested that the evidence of Ms Curley was treated “cursorily”. It was put that the Arbitrator had “simply repeated the language of the worker”.
(ii) The Arbitrator’s finding at [22] which concerned the worker’s workload is said in submissions to “represent a mere acceptance of the worker’s case without any analysis of the evidence”. A similar criticism is made with respect to those matters stated by the Arbitrator at [39] of Reasons where, it is suggested by the Appellant, the evidence of Ms Liggett and Ms Curley appear to have been “disregarded”. These submissions suggest that the Arbitrator’s reasoning is inadequate in that his process of reasoning leading to his ultimate conclusions is not revealed.

(iii) The Arbitrator’s preference for the evidence of the worker in cases of conflict with witnesses called on behalf of the Appellant was the subject of attack in the course of submissions. It was put that there is no apparent analysis by the Arbitrator of the evidence of Ms Curley and Ms Liggett where there is conflict with the worker’s evidence.
(iv) It was suggested in the course of submissions that there was not a “huge discrepancy between the parties” concerning relevant facts. It was suggested that the Arbitrator had erred in the manner in which he had applied relevant principle, as expounded in the matter of Chemler, to the facts as found. It was put that the Arbitrator’s manner of application of principle was “far too liberal”. Counsel, in the course of argument, sought to illustrate actual circumstances which may or may not give rise to a basis to find injury. The thrust of this argument and the illustrations was that a worker’s perception of matters which are not “real” which give rise to psychological damage is not compensable in that the injury was received by reason of misperception.

The Appellant’s argument with respect to the issue of “injury” was founded upon the propositions that, whilst the worker had a heavy workload, such was appropriate to her position and grade; that the conduct of Ms Liggett was not “such that would be reasonably characterised as either intimidating, bullying or harassing” and that the conduct of Ms Curley, in particular in the manner of her response to the worker’s complaints, was reasonable in all the circumstances and was not a cause of injury as alleged.

Counsel appearing on behalf of the worker made reference to the evidence relevant to the conduct of Ms Liggett, with particular attention given to the prolonged meeting between that witness and the worker, and argued that “it was perfectly open for the Arbitrator to see that incident as having some importance as being the initial episode in a series of episodes which would ultimately lead to the souring of the relationship between (the worker) and Ms Liggett”. It was put in respect of the several incidents that each was “real enough”. Counsel made reference to the decisions of Townsend and Chemler and suggested in argument that the authorities support the proposition that “if the matters which the person becomes distressed about are real, then it really doesn’t matter that their interpretation of those real things might be seen as unreasonable”. It was the worker’s submission that the argument advanced on behalf of the Appellant was in line with matters stated by his Honour Neilson J of the former Compensation Court in the matter of Yeo v Western Sydney Area Health Service (1999) 17 NSWCCR 573 (‘Yeo’). It was put that the proposition advanced by Neilson J in Yeo at [53] had been characterised as being too broad a statement of the authority of Townsend and Counsel relied upon those observations with respect to that decision made by Spigelman CJ in Chemler. It was on this basis that the “illustrations” made by Counsel were said to be inconsistent with principle. It was further argued that even in circumstances where the Commission considered the worker’s reaction to events to be “overwrought and unreasonable, in the sense they wouldn’t affect most people” such fact would not disentitle the worker to compensation.

It was further argued on behalf of the worker that the decision in Chemler supports the proposition that “you take (the worker) as you find them”. If there is a particular “susceptibility or an overreaction” such would not disentitle a worker to compensation. It was put that “to talk about what’s reasonable or what might normally be expected … really isn’t apt.”

The worker in submissions sought to support the manner in which the Arbitrator evalued the evidence and reached his conclusion that the worker’s evidence was to be accepted with respect to those factual matters concerning workload, conflict with Ms Liggett and the responses of Ms Curley.

The Appellant replied to the worker’s submissions and reiterated its argument with respect to “misperception” in the light of the observations made in Chemler by Spigelman CJ concerning matters stated in Yeo. It was also put by counsel that the Appellant was relying upon the provisions of section 9A of the 1987 Act. No submission was put amplifying the relevance of that section.

During the course of the hearing, the subject of the Arbitrator’s admission into evidence of the supplementary statement by the worker dated 27 July 2009 referred to in [32] above was raised. It was acknowledged by both the Appellant and the worker that the statement, which addresses facts and circumstances which have occurred since the commencement of proceedings, can have no relevance to the issue of “injury”. The worker, through her counsel, proposed that the statement be withdrawn and indicated that such a procedure was consented to by the Appellant. That course was not adopted given that the evidence had clearly been taken into account by the Arbitrator when reaching his findings concerning matters of fact. A number of such findings are the subject of complaint by the Appellant in this appeal. It was indicated to the parties that the Arbitrator’s approach to that evidence needed to be the subject of review, however, given the nature of the evidence contained in the statement, such could not be relevant to a determination of those contested issues raised during conduct of the proceedings before him and accordingly would be afforded no weight or relevance in determining those issues on this appeal. This matter is more fully addressed below at [124].

FINDINGS

Injury

The Appellant disputes the occurrence of injury, in terms of section 4 of the 1987 Act, as alleged by the worker. It is suggested in submissions that a proper evaluation of the evidence does not support a finding that the worker was in any relevant sense overworked, nor that the conduct of Ms Liggett was intimidating, bullying or harassing nor that Ms Curley’s conduct in the circumstances, as established on the evidence, was inappropriate and likely to give rise to stress or anxiety experienced by the worker leading to psychological injury.

The Appellant has, through its counsel, fairly stated that there is very little “discrepancy” between the parties concerning relevant facts. That the worker had a heavy workload was conceded by Ms Curley in her statement taken by Ms Betterridge, however, it was asserted that such work was not excessive but was appropriate given the worker’s grade level. Ms Curley makes reference in her statement to the performance of the “current Acting RLDO” who, it is suggested, is able to manage the role without undue difficulty. In my view, the question as to whether the workload is commensurate having regard to the worker’s grade within the Public Sector and the fact that her replacement is said to be capable of managing those same duties without difficulty are not matters relevant to a determination as to whether in fact the worker experienced difficulties with her workload. The uncontroverted evidence is that the worker had raised with the Regional Director, Mr Griffiths, her concerns that there was no guidance (business rules, procedures, manuals or guides) available to support a new person in the role of RLDO. Those concerns were not addressed by any superior officer. An assessment of the reliability of the worker’s assertions concerning workload may be gained by an examination of the clinical notes of the worker’s general practitioner. Dr Ticehurst recorded a history during consultation on 15 July 2008 that the worker had experienced tiredness for a period of months; that she felt exhausted; that her work was constant; that she was busy all the time and that her work was “a constant battle”. Also noted was that she “feels a lot of work pressure” and that there was a “bit of conflict with a colleague.” Concerning the rearrangement made in 2008 concerning assistance by an Administration Officer it may fairly be inferred, in my view, that any difficulty experienced by the worker at that time would likely be exacerbated by reduction in the availability of assistance.

It is my view that the worker’s allegations concerning workload are, to an extent, fortified when the evidence of Ms Curley, as found in her statement, is considered. Ms Curley fairly acknowledges that the worker had expressed concern with respect to her ability to manage the workload shortly after her commencement as Regional Executive Officer in March 2008. Those concerns led to Ms Curley making, what I conclude to be, reasonable and sensible efforts to alleviate her problems. There is much detail to be found in Ms Curley’s statement which suggests that, notwithstanding efforts to alleviate the worker’ problems, her difficulties persisted. Those difficulties concerned the Central Office restructure, budgetary submissions, the need to estimate training requirements and the absence of guidelines concerning procurement of trainers. The worker in her evidence had noted that the relevant budget had been substantially expanded placing additional pressure upon her with respect to general administration and the need to ensure that expenditure matched the budget. It is Ms Curley’s evidence that the worker was, perhaps, not “utilising effective strategies to manage her workload”. If that be so and the worker has failed to respond to the support and guidance provided by Ms Curley and others, the fact remains that the worker, having been promoted to this position, had on the face of the known circumstances found herself out of her depth and unable to perform adequately. Whether this be by reason of features of her personality or emotional make up is, for present purposes, irrelevant (see Chemler per Spigelman CJ at [40]).

The evidence suggests that the worker experienced difficulties with her workload, that that difficulty persisted until such time as she was compelled to leave work in late 2008 and that the reactive depression which was diagnosed by Dr Roth at the time of consultation on 4 November 2008 had been caused by those problems encountered with her workload as then recorded. That condition, as diagnosed, gave rise to incapacity. That issue of incapacity is not in dispute.

The relationship between the worker and Ms Liggett has assumed very considerable significance during the conduct of these proceedings. The evidence establishes that efforts had been made by Ms Curley since April 2008 to resolve conflict between Ms Pye and Ms Liggett. Ms Curley had been advised of those problems by the worker per email on 3 April 2008. Those measures included meetings on a number of occasions which had been convened in an effort to resolve difficulties, as well as informal contact between Ms Curley and the worker concerning dealings with Ms Liggett. It is clear from the evidence of Ms Curley that she had accepted that there was a degree of conflict between Ms Liggett and the worker. The manner in which these proceedings have been conducted raises significant questions as to the reality of that conflict and, perhaps more importantly, the manner in which the worker has perceived those actions of Ms Liggett. Her complaints concerning the behaviour of Ms Liggett relate to Ms Liggett’s questioning and challenges made concerning decisions that had been made by the worker. Particular attention is given in the course of the statement taken by Ms Betterridge from the worker to the occasion when a meeting between Ms Liggett and the worker scheduled for 30 minutes ran overtime to an hour and a half by reason of the suggested insistence of Ms Liggett.

A statement by Ms Liggett was not recorded by Ms Betterridge for inclusion in the report compiled by her at the request of the Appellant’s insurer. There is, however, a “record of interview” between Mr Hitchcock, an investigator, and Ms Liggett which took place on 31 March 2009. During the course of that interview Ms Liggett denied that the content of a particular email was inappropriate and/or offensive. On numerous occasions when questioned as to specific matters of complaint, Ms Liggett stated that she had no “recall”. Ms Liggett did recall events concerning a discussion between herself and the worker concerning the data projector. Ms Liggett gave a long and detailed response concerning this incident. It is clear from that response that Ms Liggett disapproved of the worker’s approach to the provision of multimedia projectors. Ms Liggett expressly denied that she had questioned the worker “aggressively” and denied that her tone or manner made the worker “very upset”. Ms Liggett expressly denied that she had interrogated, bullied and harassed the worker.

The Appellant in submissions correctly noted that the Arbitrator, in the course of his reasons, had, apparently, no regard to the evidence of Ms Liggett. The Appellant’s complaint is that the Arbitrator has accepted the worker’s evidence without qualification and, in particular, without considering the evidence of Ms Liggett including her denials of suggested interrogations, bullying and harassment.

I consider it of significance that there is nothing to be found in Ms Liggett’s record of interview with Mr Hitchcock that suggests that there was no “conflict” between herself and the worker. The evidence of those individuals differs with respect to the manner of Ms Liggett’s behaviour. One of the difficulties in evaluing the evidence in this matter arises by reason of the usage of the terms “intimidation”, “bullying” and “harassment”. Those terms appear in the worker’s statement which was taken by Ms Betterridge in December 2008. It is suggested in Ms Curley’s statement that the conflict with Ms Liggett was first referred to as “workplace bullying and harassment” in an email to her from the worker on 9 October 2008. That appears to be the earliest appearance of the terms in the evidence and those terms have come to assume great significance both in the manner of investigation of relevant facts and presentation of evidence and argument with respect to the worker’s claim.

It is important to note, in my view, that no allegations of intimidation, bullying and harassment had been recorded by those practitioners consulted by the worker prior to her cessation of work. There is no copy of a claim form lodged on behalf of the worker in respect of workers compensation benefits and it is thus not known as to the manner in which the worker initially characterised the injury which she alleged. Of particular relevance are the entries in the general practitioners clinical notes which on any reading, in my view, place particular emphasis in the recorded history upon an onerous workload. The question of conflict with Ms Liggett does not feature at all in the history recorded by Dr Roth during two consultations in November 2008. There is a reasonable basis to infer that, in some way, a case that involved overwork and personality conflict has in some manner been transformed, since making of a claim, into one of intimidation, bullying and harassment.

In my view a proper analysis of the evidence of the worker and Ms Liggett demonstrates that a state of conflict did exist between those two individuals. The submission has been put that, in the absence of hearing a witness, the Commission is at a disadvantage in assessing the evidence of such witness in cases of conflict. Whilst the demeanour of a witness may be observed and some advantage gained from such observation when the task of evaluation of evidence is undertaken, I am of the view that the Commission may gain insight into the reliability of the witness by looking at the evidence in its totality as well as by the adoption of a critical analysis of what is stated. In the case of Ms Liggett, I have earlier noted that there was a refusal to furnish Mr Hitchcock with certain particulars. That in itself is not damning, however I have formed a view having regard to those responses and others as recorded that Ms Liggett was not only uncooperative but had adopted a stance that may be described as defensive. Having regard to her undoubted knowledge at the time of the interview that there were suggestions of bullying made against her it is not surprising that such a response was provoked. In so far as the Commission is able to discern the tenor of Ms Liggett’s evidence I have concluded that, particularly bearing in mind her persistent lack of recall, her evidence is less reliable than that of the worker. I conclude not only that there was a state of conflict between the two parties in question but that Ms Liggett’s behaviour was to an extent overbearing and, on occasions, unreasonable. In that respect I accept the submission put on behalf of the worker by Mr Marsh of counsel that Ms Liggett’s conduct – “either shows an obtuseness, or else an attitude of - I shouldn’t say ‘uncaring’, but indifference to the effect that the overly long meeting was having upon Ms Pye.” Whilst that submission was limited to the circumstances concerning the prolonged meeting, I conclude that counsel’s characterisation of Ms Liggett’s behaviour is, on the probabilities, accurate in a general sense. Such conduct falls far short of intimidation, bullying and harassment. The issue here for determination is not whether such conduct should be so described, but whether the conduct was such as to cause injury.

The Appellant is correct in its suggestion that the Arbitrator’s reasoning is flawed in that he has apparently failed to consider the evidence of Ms Liggett on this subject. Notwithstanding the failure on the part of the Arbitrator to adequately state reasons and in particular, to have regard to that evidence relevant to the matter requiring determination, I similarly conclude that there existed a conflict of significance between the two personalities and that such conflict, in combination with the workload borne by the worker as discussed above caused the psychological injury which has been diagnosed by the various medical witnesses whose evidence is before the Commission.

The worker states that a “contributing factor” to her “current distress” was “the failure of my manager, Ms Sue Curley, Regional Officer, DADHS to address problems regarding bullying and harassment and unreasonable workload, appropriately”. I have earlier noted that Ms Curley, on the evidence, had taken a number of steps to overcome the difficulty which I have found to have existed between the worker and Ms Liggett. Those measures included mediation, informal meetings, and counselling as to work methods.Those efforts have failed and I conclude that the worker’s attribution of her problems, in part, to Ms Curley’s conduct is founded upon the fact that such measures failed. This is not to say that Ms Curley’s efforts were “inappropriate”. I find that Ms Curley’s efforts were both timely and appropriate having regard to all the circumstances, however I find that such failed efforts did in fact contribute, in part, to the onset of the worker’s psychological problems. It may be seen that I have found that the worker had experienced difficulty with her workload of such magnitude since her appointment as permanent RLDO that by mid July 2008 she was compelled to seek medical advice from her general practitioner Dr Ticehurst. I have also found that there existed a state of conflict between the worker and Ms Liggett which caused her distress and frustration. That conflict was reported to Dr Ticehurst at that July consultation. I have further found that those efforts made and steps taken by Ms Curley to resolve or overcome the problems reported to her by the worker concerning the workload and her dealings with Ms Liggett had failed. Those findings may, in some respects, be distinguished from those matters of fact found by the Arbitrator. It is correct, as the Appellant’s counsel has put, that “the Arbitrator’s decision itself is coloured in some respects” and that the Arbitrator’s conclusions of fact had been reached without it being revealed that in reaching his conclusions he had taken the evidence of Ms Liggett into account. I also accept the Appellant’s argument that it appears that, having regard to the manner in which his reasons are expressed, the Arbitrator has apparently given merely cursory attention to the evidence of Ms Curley. Whilst such a difference in respect of findings exists, the question remains as to whether the Arbitrator’s decision was correct or otherwise. Such question requires an application of relevant principle to the facts as I have found on review and which I have attempted to summarise above.

It is the Appellant’s argument that the leading authority concerning a determination of the occurrence or otherwise of injury on the present facts is that of Chemler. It is put in written submissions that a “test” has been formulated by the Court of Appeal in that decision which is to be applied in circumstances of suggested “misperception”. That test raises, it is put, the following issues (submissions page 7 at [30]);

“(i) Can the events be objectively considered to be “real events” or objectively considered to be “external events”?

(ii) Is there a causal relationship between the real events and the injury?
(iii) Was the perception of, or the reaction to the real events, being the causal nexus, “accurate”? In considering whether the perception was accurate there must be an objective examination of whether the response was rational, reasonable and proportionate in the face of the events that transpired.”

The argument above quoted was amplified by counsel at the hearing. It was put “ there needs to be – one needs to step back from these cases, have a look at the facts, and say, ‘do they support in some way a reasonable perception of events, even if they are not necessarily the common one?’” The Appellant’s argument was, as put by counsel, that what was occurring in the workplace was quite “ordinary”. It is also argued that the events which occurred involving interaction between Ms Liggett and the worker were “innocuous”. I should note that the term “innocuous” was used by counsel when characterising the nature of one incident (hearing transcript page 17) which, it was put, would explain the absence of recall expressed by Ms Liggett in her record of interview. The innocuous nature of the events and their ordinariness support the Appellant’s proposition, it is argued, that there has been a “misperception” or, as stated in Townsend, an “erroneous perception of external events”. Given that the worker’s psychological illness resulted from that erroneous perception, it cannot be said that there is a causal nexus between the employment and injury. Such argument reflects the reasoning of McGrath CJ in Townsend and it is that authority which is relied upon by the Appellant. Counsel made it perfectly clear during the course of submissions that the Appellant’s argument was founded upon the proposition that Townsend remains good law and has been in no relevant sense qualified by the decision of the Court of Appeal in Chemler. I accept that argument concerning the standing of the decision of McGrath CJ and note that the decision in Townsend was distinguished, on the facts, in the course of those reasons expressed by Spigelman CJ in Chemler.

The Commission here is dealing with findings that the worker had experienced difficulty with her workload over a considerable period of time causing her distress and other symptoms; there existed concurrently a state of conflict dating from February 2008 until the worker’s departure from the work place with Ms Liggett which caused the worker considerable frustration, annoyance and distraction. It has also been found that the efforts of the worker’s superior Ms Curley had failed to resolve the difficulties experienced by the worker. It cannot be suggested, in my view, that the events and circumstances that constituted each of those three matters were not real events. Nor can it be argued, in my view, that there has been any misperception, in any relevant sense, of those events by the worker. Adopting the words of McGrath CJ it cannot be said that there has been an “erroneous perception of external events”. Whilst the decision of Townsend was distinguished on its facts by Spigelman CJ in the course of his reasons in Chemler, it is clear that the reasoning of McGrath CJ has been expressly approved by the Chief Justice. It was stated by Spigelman CJ (Bryson AJA concurring);

“[51] In this case, there was no ‘erroneous perception of external events’. Not only were none of the events ‘external’, there were positive findings of fact about ‘real events’ with respect to which the respondent’s ‘perception’ was accurate. There was also evidence of perception of events which the Arbitrator found did not occur, but that did not break the causal nexus.”

The medical evidence establishes that the worker has suffered at all relevant times a disabling psychological condition. That diagnosis has been expressed in various terms including “mild-mod depression” (Dr Roth November 2008); Adjustment Disorder with Mixed Anxiety and Depressed Mood (Classification 309.28) (Ms Betterridge January 2009); “Post Traumatic Stress Disorder” (Ms Murphy February 2009) and “Major Depressive episode” (Dr Miller April 2009).

I find that the worker, as a result of her employment conditions involving in particular her excessive workload, conflict within the workplace and the perpetuation of these difficulties which remained unresolved until her departure from the work place in November 2008 has received a psychiatric injury which has caused incapacity for work. It may be seen that I have reached a conclusion with respect to the Appellant’s liability similar to that expressed by the Arbitrator.

As noted above the Appellant made a submission that reliance was placed upon the provisions of section 9A of the 1987 Act. That matter was raised for the first time by counsel in his reply to the worker’s submissions put at the hearing of the appeal. When it was drawn to counsel’s attention that the section had never been argued during the proceedings it was asserted that it had been “raised in (the insurer’s) section 74 notice”.

An examination of the section 74 notice dated 23 April 2009 reveals that the only reference to section 9A is to be found in the first paragraph of that notice where the section, along with five other sections of the legislation, is nominated as being a basis for declinature of the claim. There has not been any compliance with the requirements of the legislation or the relevant regulation concerning proper particularisation of such reliance upon section 9A. Such failure to comply has, regrettably, become a common and recurrent feature of the manner in which insurers manage contested claims. Such failure to properly identify relevant issues has been the subject of comment and criticism in numerous decisions of the Commission. In the present case, leaving aside the question as to whether the Appellant’s failure to argue the relevance of the section before the Arbitrator precludes reliance on such at this late stage, I conclude that any issue thrown up by its application to the facts may not be litigated: section 289A of the 1998 Act. I note that no argument was advanced concerning its relevance nor was any application made seeking exercise of the Commission’s discretion pursuant to section 289A(4).

Incapacity

The worker claims weekly compensation upon the basis of total incapacity which is said to continue to the present. No evidence has been adduced either at the hearing or on this appeal to dispute this allegation. In those circumstances the worker is entitled to an award in her favour in respect of such payments, however it is put on behalf of the Appellant that the Arbitrator has erred in the manner in which he has quantified such entitlement.

It is agreed that the worker has received workers compensation payments between 5 November 2008 until 20 January 2009. It is also common ground that between 21 January 2009 and 10 March 2009 the worker was absent from work having taken sick leave and annual leave. A claim for weekly benefits in respect of that latter period is made. It is agreed that compensation benefits resumed on 10 March 2009 and payments continued until denial of liability on 23 April 2009. The worker’s claim then dates from 24 April 2009 to date and continuing.

There is some suggestion in the Appellant’s written submissions that compensation payments commenced on 12 November 2008. It should be noted that there is some conflict as to the relevant chronology of payments. In the circumstances I have had regard to the worker’s wage schedule which suggests that the payments commenced one week earlier namely on 5 November 2008.

There is also a suggestion in the Appellant’s written submissions that the worker has, since the date of arbitration, been assessed as fit for suitable duties. There is no evidence of that fact and it is proposed to assess the worker’s entitlement upon the basis of total incapacity. The Appellant’s submissions (at [63]) appear to accept that the worker, upon proof of entitlement, would be entitled to payments in accordance with the provisions of section 36 of the 1987 Act for the first 26 weeks. Having regard to the assumed commencement date of payments that entitlement would cease on 6 May 2009. It follows that the worker is entitled, from 7 May 2009 to date, weekly compensation at the maximum rate prescribed from time to time and I find that such payments should continue. The current weekly wage rate for the purpose of assessing entitlement pursuant to section 36 is stated as being $1,430.92. Having regard to my analysis of the relevant chronology it appears that the worker is entitled to an award for weekly compensation founded upon her current weekly wage rate until 6 May 2009 pursuant to section 36 of the 1987 Act. Thereafter I find, as did the Arbitrator, that the worker remained totally incapacitated and that such incapacity persists to the present. The Arbitrator’s orders and findings are, to an extent, confused by his reasons, as expressed, for declining to make an order pursuant to section 38 of the 1987 Act. Entitlement pursuant to that section is founded upon a determination of partial incapacity. Given that the Arbitrator’s continuing award made in favour of the worker was entered pursuant to section 36, it is clear that there was no need for a consideration of the question of entitlement pursuant to section 38. Given that I have determined the relevant chronology with reference to the worker’s wage schedule, which appears to correspond to the chronology set forth in the Appellant’s submissions, the Arbitrator’s orders with respect to weekly payments require revocation and substitution with those orders which appear below.

I have earlier, at [73] and [100], made reference to the admission of a supplementary statement made by the worker dated 27 July 2009. Whilst the statement was admitted into evidence by consent it is clear that its contents, which relate to the employer’s contact or attempted contact with the worker since the commencement of proceedings, can have no relevance to the issues which required determination by the Arbitrator. Whilst the worker’s counsel suggested, faintly, during the course of submissions that the content of the statement has some relevance I conclude that, in the absence of there being any amendment to the allegation of injury, the matters raised in this statement have no relevance to the present dispute. Notwithstanding that fact, the evidence was before the Arbitrator and it is apparent that the Arbitrator had been, to an extent, influenced by its contents. Having regard to the worker’s preparedness at the hearing of this appeal to “withdraw” any reliance upon the statement, and my view as to its relevance, I have in this review disregarded that evidence. I note that I foreshadowed this approach in exchanges with the parties at the hearing and no objection was taken to the manner in which the evidence was to be treated.

Whilst the need to amend the terms of the Arbitrator’s award in respect of weekly payments has been determined upon this review, the appeal in all other respects has failed. The Arbitrator’s determination is to be amended in accordance with the decision as set forth below. I note that the Arbitrator anticipated at the hearing before him conducted by way of teleconference on 9 September 2009 that an uplift of 20% of professional fees would be appropriate in circumstances where the worker was successful with respect to the question of liability (T18). This matter has not been addressed on this appeal, however I note that it appears that the Arbitrator has overlooked such a notation when entering his order with respect to costs. It is proposed to confirm the Arbitrator’s order as to costs as it appears in his Certificate of Determination, however, should there be any disagreement with respect to costs or any need for further direction, I grant leave to apply on short notice.

DECISION

Paragraphs 3 and 4 of the Arbitrator’s Amended Certificate of Determination dated 2 October 2009 are confirmed.

Paragraphs 1 and 2 of the Amended Certificate of Determination dated 2 October 2009 are revoked and the following orders made in their place:

“1.The Respondent is to pay the Applicant weekly compensation at the rate of $1,430.92 per week from 21 January 2009 to 9 March 2009 and at the rate of $1,430.92 per week from 24 April 2009 to 6 May 2009 such payments are payable pursuant to the provisions of section 36 of the Workers Compensation Act 1987.
2.The Respondent is to pay the Applicant weekly compensation at the rate of $389.10 per week from 7 May 2009 to 30 September 2009 and at the rate of $396.10 per week from 1 October 2009 to date and continuing pursuant to section 37 of the Workers Compensation Act 1987.”

COSTS

The Appellant is to pay the worker’s costs of this appeal.

Kevin O’Grady
Deputy President
25 February 2010

I, EMMA LETHBRIDGE-GILL CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE