DEPARTMENT OF AGRICULTURE AND FOOD - v- FELS
[2014] WADC 77
•29 MAY 2014
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : STAUDE DCJ | ||
| HEARD |
| ||
| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
|
AND
PATRICK CHARLES FELS
Respondent
| FILE NO/S | : | APP 74 of 2013 |
| BETWEEN | : PATRICK CHARLES FELS |
Applicant
AND
DEPARTMENT OF AGRICULTURE AND FOOD
Respondent
ON APPEAL FROM:
| Jurisdiction | : WORKERS' COMPENSATION ARBITRATION |
SERVICE (WA)
| Coram | : ARBITRATOR RUTHERFORD |
| Citation | : A209 |
| Catchwords: |
Workers' compensation - Application by employer for leave to appeal from arbitrator's decision - Stress-related disorder - Whether wholly or predominantly caused by matters excluded by s 5(4) - Whether open to arbitrator to find that worker's onus of proof discharged by proving no predominant cause - Whether question of law involved
Workers' compensation - Application by worker for leave to appeal from arbitrator's decision - Stress-related disorder - Whether arbitrator erred in determining the period of incapacity - Whether question of law involve
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA
Result:
Employer's application for leave to appeal dismissed
Worker's application for leave to appeal dismissed
Representation:
APP 73 of 2013
Counsel:
| Appellant | : | Mr G Raithel |
| Respondent | : | Ms D Chesworth |
Solicitors:
| Appellant | : | State Solicitor for Western Australia |
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| Respondent | : | Perth City Legal |
APP 74 of 2013
Counsel:
Solicitors:
APP 74 of 2013
Counsel:
| Applicant | : | Ms D Chesworth |
| Respondent | : | Mr G Raithel |
Solicitors:
| Applicant | : | Perth City Legal |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in judgment(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Granitto v Catholic Education Office [2011] WACC C17-2011
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
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STAUDE DCJ:
Introduction
1 In March 2009 Mr Patrick Fels claimed workers' compensation from
the Department of Agriculture and Food (DAFWA) for incapacity due to psychological stress allegedly arising from his employment. The claim went to arbitration. The arbitrator found that Mr Fels was entitled to weekly payments and statutory expenses for the period 4 May 2009 to 7 February 2011 inclusive.
2 DAFWA applies for leave to appeal against the arbitrator's decision.
DAFWA contends that the learned arbitrator erred in law and fact in finding that Mr Fels suffered a compensable injury.
3 Mr Fels also applies for leave to appeal from the aspect of the
decision relating to the period for which he is entitled to compensation, contending that the learned arbitrator erred in law and fact in deciding the period of incapacity. Mr Fels contends that the period of incapacity was 26 March 2009 to 7 November 2011.
4 Mr Fels filed a notice in DAFWA's appeal (APP 73 of 2013) to the
effect that he did not wish to be heard and would abide the decision of the court, except with respect to costs. This position was confirmed by counsel at the hearing, but no formal concession of the appeal was made.
Nature of appeal
Section 247 of the Workers' Compensation and Injury Management Act 1981 (the Act) provides:
(1) If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision. (2) Subject to subsection (3), the District Court is not to grant leave to
appeal unless —
(a) in the case of an appeal in which an amount of compensation is at issue — (i) a question of law is involved and the amount at issue in the appeal is both —
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(I)
at least $5 000 or such other amount as may be prescribed by the regulations; and
(II) at least 20% of the amount awarded in
the decision appealed against;or
(ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b) in any other case, a question of law is involved. …
(4) An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application. (5) An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court. (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 cannot be given on an appeal to the District Court except with the leave of the District Court. (7) On hearing an appeal made under this section, the District Court
may —
(a) affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and (b) subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
6 In neither appeal is there any issue that the pecuniary requirement is
satisfied. The leave question in each case is, therefore, whether a question
of law is involved.
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A number of principles applicable to a s 247 appeal were identified in Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] - [57]. They may be conveniently summarised as follows:
(1)
An appeal 'involves' a question of law where either an error of law, or an error of mixed law and fact, is involved: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17.
(2)
An appeal involving a question of law is broader than an appeal 'on a question of law': Catholic Education Office of WA v Granitto [53], [65].
(3)
If no question of law can be identified in the appeal as arising from an arbitrator, there is no jurisdiction to grant leave to appeal: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17].
(4)
An arbitrator does not make an error of law merely because the arbitrator finds facts wrongly or on a doubtful basis: Atanasoska v Inghams Enterprises Pty Ltd [21].
(5)
In most cases the application for leave and the appeal should be heard together: BHP Billiton Iron Ore Pty Ltd v Brady [14]; Atanasoska v Inghams Enterprises Pty Ltd [32].
(6)
A s 247 appeal is neither a hearing de novo, nor an appeal in the strict sense; the court is required to conduct a 'real review': Pacific Industrial Co v Jakovljevic [20], [24].
(7)
Where leave is granted and a review undertaken, the appellant must still provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it: Pacific Industrial Co v Jakovljevic [20], [26].
DAFWA's grounds of appeal
The grounds of DAFWA's appeal are as follows:
1. The arbitrator erred in law by finding that the applicant suffered an injury for the purposes of the Act.
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2. The arbitrator erred in law by misdirecting himself as to, and misapplying, the relevant tests of causation for stress-related diseases in that:
(a) the arbitrator applied a too generalised approach to the issue; and (b) the arbitrator erroneously considered the cumulative effect of various stressors, and thereby failed to properly address whether the stress arose wholly or predominantly from an expectation of an excluded matter. 3. Alternatively, the arbitrator erred in law by misdirecting himself as to, and misapplying, the relevant test of 'expectation' in that:
(a) the arbitrator applied a too generalised approach to the issue; and (b) the arbitrator erroneously considered the cumulative effect of various stressors, and thereby failed to properly address whether the stress arose wholly or predominantly from an expectation of an excluded matter. 4. As a result, the arbitrator erred in concluding that the applicant suffered an injury and that the injury did not arise wholly or predominantly from an excluded matter, or alternatively, an expectation of an excluded matter.
DAFWA contends that Mr Fel's claim for workers' compensation should be dismissed. The amount in issue in its estimation is $88,462.60. appeal notice as follows:
The questions of law raised by DAFWA's appeal are set out in the
1. On what basis may an arbitrator be satisfied, on the balance of probabilities, that an applicant has suffered an injury for the purposes of the definition of injury in s 5(1) and s 5(4) of the Act?
2. What is the meaning and scope of the phrase 'wholly or predominantly arises from' for the purposes of the definition of injury in s 5(1) and s 5(4) of the Act?
3. Can an applicant for compensation discharge their onus of proof that the stress-related disease did not arise wholly or
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predominantly from an excluded matter (or expectation thereof) by
demonstrating that there was no predominant causative factor?
Mr Fel's grounds of appeal
The grounds of Mr Fel's appeal are as follows:
1. The arbitrator erred in concluding that the evidence between 26 March 2009 and 3 May 2009 was insufficient to establish total incapacity and is contrary to the opinion of Dr Lochner and Dr Manners.
2. The arbitrator failed to take into account the medical certificates of Dr Lochner and the medical report of Dr Manners when concluding there was insufficient evidence to establish total incapacity between 26 March 2009 and 3 May 2009.
3. The arbitrator erred in concluding that the appellant had recovered from the adjustment disorder and was not totally incapacitated by 8 February 2011 contrary to the evidence of Dr Manners dated 1 March 2011.
4. The arbitrator failed to take into account the report of Dr Manners dated 1 March 2011 when concluding that the applicant had recovered from the adjustment disorder and was not totally incapacitated between 8 February 2011 and 7 November 2011.
5. The arbitrator failed to provide adequate reasons for his decision that the appellant was not suffering from an adjustment order and totally incapacitated between 8 February 2011 and 7 November 2011.
12 Mr Fels contends that he is entitled to weekly payments for the total
incapacity and statutory allowances from 26 March 2009 to 7 November
2011. The amount in issue in his estimation is $42,308.20.
Relevant legislative provisions
13 Section 18 of the Act provides that if an injury to a worker occurs,
the employee shall, subject to the Act, pay compensation in accordance
with sch 1.
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Section 5(1) relevantly defines 'injury' to mean:
…
(c) a disease contracted by a worker in the course of his employment at or away from his place of employment to which the employment was a contributing factor and contributed to a significant degree; … But does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in s 5(4) unless the matter is mentioned in par (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer.
15 Section 5(1) defines 'disease' to include any ' physical or mental
ailment, disorder, defect, or morbid condition, whether of sudden or
gradual development'.
Section 5(4) provides:
For the purposes of the definition of 'injury' the matters are as follows –
(a) the workers dismissible, retrenchment, demotion, discipline, transfer or redeployment; (b) the worker not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and (c) the worker's expectation of – (i) a matter; or
(ii) a decision by the employer in relation to a matter referred to in par (a) or (b).
Section 5(5) provides:
In determining whether the employment contributed, or contributed to a significant degree to the contraction, recurrence, aggravation or acceleration of a disease for the purposes of the definitions of injury and relevant employment, the following should be taken into account -
(a) the duration of the employment; (b) the nature of, and particular tasks involved in the employment; (c)
the likelihood of the contraction, occurrence, aggravation or acceleration of the disease occurring despite the employment;
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(d) the existence of any hereditary factors in relation to the contraction, occurrence, aggravation or acceleration of the disease; (e) matters affecting the worker's health generally; (f) activities of the worker not related to the employment.
18 In short, injury in the form of a stress-related disorder is
compensable if the worker's employment was a contributing factor and contributed to a significant degree, and if it did not wholly or predominantly arise from any of the matters set out in s 5(4).
19 It is not disputed that for the purposes of s 5(4) the onus of proving
that a stress-related disorder does not arise wholly or predominantly from
an excluded matter lies on the worker.
History
There is no real issue as to the history of the employment relationship. It may be briefly outlined as follows.
21 Mr Fels was born on 9 November 1966. He started working for
DAFWA as a plant breeding technician in 1988 on a seasonal basis. In 1996 Mr Fels commenced working for DAFWA full-time as an agricultural research technician at the Wongan Hills Research Station. He resided at the research station from that time. He became a permanent employee in April 1998.
22 Mr Fels was primarily engaged as a technician in DAFWA's canola
plant breeding programme. Mr Fels' technical skills were highly valued by DAFWA. By all accounts he was an excellent technician. The annual performance appraisal and personal development review completed on 1 April 2007 shows a 100% completion rate across all job tasks. His overall performance rating was 'highly capable'.
In 2006 Federal funding for the breeding programme was terminated, but Mr Fels continued to work in the programme throughout 2007. He was the only technician engaged in that work during 2007.
24 On 21 November 2007 DAFWA's director general Mr Ian Longson
published a briefing note entitled 'Expression of Interest for Access to Canola Germplasm'. The briefing note indicated an intention to divest canola germplasm owned by DAFWA to the private sector. The briefing note stated that DAFWA discontinued its work in canola breeding in 2006 with closure of the national brassica (canola) breeding programme, but
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had continued to maintain its germplasm pool. Canola breeding had become a predominantly private sector activity and other State governments had decided to discontinue their programmes. A process of divestment was recommended.
25 The briefing note is the genesis of the conflict between Mr Fels and
DAFWA. He interpreted the statement as dishonestly and improperly denying the existence of the work that he had undertaken in the breeding programme during 2007. He also took the view that the proposal as set out in the briefing note would squander a valuable publicly owned resource, given the commercial value of the breeding programme and its outcome. Mr Fels communicated his views to his employer in a number of emails in December 2006 and January and February 2007.
26 On 7 December 2007 Mr Fels was requested by DAFWA's
programme manager for legume and oil breeding, to provide him with a dossier 'probably in the form of a spreadsheet that provides all important information including pedigree of our brassica germplasm EGOLL, mustards etc'. On 10 December 2007 Mr Fels responded to this request by an email in which he said, in part:
The attached Word document is a briefing note handed out to participants of the 21 November meeting in South Perth. This document denies the existence of the current DAFWA Brassica Breeding Effort.
An attempt is currently being made to terminate the current DAFWA Brassica Breeding Effort through a process consensual denial of existence. This action is dishonest, and therefore improper.
I am not prepared to participate in improper conduct, so I won't be providing you with a divestment 'dossier' of germplasm from the current DAFWA Brassica Breeding Effort.
27 On 11 December 2007 Mr Mark Sweetingham of DAFWA sent an
email to Mr Fels, which was in part a response to Mr Fels' email of the
previous date. In his email Mr Sweetingham said:How would you amend the briefing note to acknowledge the work you have done since the National Brassica Improvement Programme ceased? There is obviously no intention to be dishonest.
David and I have looked at several options for you going forward and believe the role with the Barley Breeding Group is the best fit for your skills, your desire to stay at Wongan Hills at DAFWA's direction. Can you see any reason why you should not accept this offer starting January 2008?
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28 On 11 December 2007 Mr Fels responded to Mr Sweetingham's
email suggesting that the department 'start again from first principles'. He put forward a number of considerations, including public interest in retaining the breeding programme and the current skill base and technical capacity of the programme, and requested acknowledgement of the existence, efficiency and effectiveness of the local breeding effort. He went on to say:
I am an oilseeds genetic improvement technician, but the offered role in the barley breeding group would fit my skills. Thanks for giving me a choice in the matter.
I definitely can see a number of reasons why I should not accept the job offer; but if DAFWA has a proper look at this issue and makes an honest, well informed, transparent decision to terminate the current DAFWA brassica breeding effort, then I will happily accept the barley job.
29 Subsequent attempts by DAFWA to resolve Mr Fels' grievance were
unsuccessful. A teleconference was arranged for 4 February 2008 to discuss his transfer to another position, but Mr Fels sought a postponement at the last minute. This prompted the acting director general Mr Robert Delane to send a memorandum to Mr Fels on 7 February 2008 confirming that the canola breeding programme had been phased out and that he would be assigned to the barley breeding programme from 4 March 2008. Mr Fels was instructed to provide another employee with all relevant hard copy and electronic documents and to provide all necessary assistance to complete cleaning, packaging, documentation and relocation of the seed material. The memorandum noted his highly developed technical skills, his commitment and experience in plant breeding and his desire to stay in Wongan Hills and went on to detail the technical services he would perform. The memorandum acknowledged Mr Fels stated concerns about the department's decision.
30 On 22 February Mr Fels, at the direction of Mr Sydney Dunstall,
manager Wongan Hills Research Station, attended a 'workplace support meeting' with Dr Terry Simpson, senior psychologist with OSA Group. This meeting was convened to address Mr Fels' apparent resistance to accepting a transfer to the barley breeding programme. At that time it was noted that Mr Fels felt that his motivation to transfer to a new position was affected by his perception that DAFWA had acted improperly.
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31 On 25 February 2008 Mr Fels sent an email to a number of
DAFWA's senior officers, including Mr Delane. In his email Mr Fels said, amongst other things:
The current DAFWA brassica breeding effort is a valuable asset with a value that exceeds the value of its germ plasm … and yet you continue to maintain the pretence that DAFWA's brassica breeding activities ended with the cessation of the national breeding programme in 2006. In the face of evidence and criticism you have maintained your consensual, knowing denial of the existence of the current DAFWA brassica breeding effort … and you have retained your commitment to a dishonest plan … that conveniently terminates the current DAFWA brassica breeding effort without any acknowledgement of its actual existence.
In my opinion, it is improper to conceal and secretly destroy a valuable asset. I also consider it improper to knowingly participate in impropriety, and my refusal to participate in what I regard as improper conduct will extend to all aspects of my involvement with your brassica breeding termination plan, up to and including your moves to exclude me from my career.
If you think what I'm saying is a bit extreme, try to imagine how you would feel if someone in a position of power informed you that several years of your own public service work had been declared 'officially non-existent' just when you were on the brink of real success, and that your final assigned task before being marginalised from your chosen profession would be to catalogue and package the products of your own 'officially non-existent' labour for disposal to commercial clients.
32 By emails dated 26 and 27 February 2008 Mr Fels confirmed that he
would not comply with Mr Delane's directive to take up the new duties. In his email to the manager of the research station dated 27 February 2008 Mr Fels said:
To further clarify my intentions: I will turn up to work on 4 March 2008. You will find me in a deckchair reading a paperback at the research station front entrance; and I will be ready and willing to follow any Management directive that is not related to Management's ongoing scheme to dishonestly conceal the termination of a publicly run bio-diesel breeding programme from the awareness of the WA public.
The research station front entrance can sometimes be a lonely place, so I am considering inviting some journalists to pop over for a chat about Management's ongoing plan to kill the programme and provide the Department's publicly owned brassica germplasm pedigree lists and seed stocks to Eastern States multi-national bio-technology company.
| 33 | Mr Fels did not commence work in the barley breeding programme on 4 March 2008. Rather, from that date through to 23 April 2008 |
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(seven weeks) Mr Fels mounted what he considered to be a principled protest against DAFWA by sitting in a deckchair at the front gate of the research station reading books, listening to music and waving at passing traffic. In addition, during this period Mr Fels failed to provide to the senior management of DAFWA the data from the breeding programme despite repeated requests.
On 9 April 2008 Mr Fels had a further meeting with Dr Simpson whose report of 10 April 2008 records the following observations:
[T]ime was spent hearing Patrick's issues and working through his thought processes. Attempts were made to counter his rationalisation, challenging his perceptions and reality testing the consequences of his actions (at a personal, professional and organisational level).
While Patrick engaged in the discussion and was very calm and collected, his rationalisation of each point (while sounding well considered) revealed that he had resigned himself to the potential costs of making his stand and that he had compartmentalised his need to address these potential costs to a later date in place of holding onto a faint glimmer of hope that decisions made affecting his 'career' and the program be reversed and hypothesising around the department's actions to date. What he did not engage in working towards were workplace objectives outlined in the WSP and he remained fixed on his perception of improper conduct and dishonesty as the issues fuelling his resistance.
35 DAFWA then engaged a psychiatrist, Dr Gemma Edward-Smith, to
examine Mr Fels and provide a report in accordance with cl 26(4) of the Public Service Award 1992. Mr Fels saw Dr Edward-Smith on 22 April 2008. On 19 May 2008, following receipt of Dr Edward-Smith's report, Mr Dunstall sent an email to Mr Fels, who was still living on the research station's premises, directing him to take medical (sick) leave retrospectively, commencing 2 May 2008. Dr Edward-Smith had expressed concern that Mr Fels exhibited features of Asperger's syndrome and might be suffering from a paranoid delusional disorder. She had opined that he was not fit for work as his mental state might be exacerbated by his reassignment.
DAFWA informed Mr Fels that he could return to work if he obtained certification from a psychiatrist that he was fit to work.
37 DAFWA did not provide Mr Fels with a copy of Dr Edward-Smith's
report because it considered, in view of the contents, that the better course was to provide the report to Mr Fels' doctor who could then explain it to him. DAFWA considered that to do otherwise might adversely affect Mr Fels' health.
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38 Mr Fels did not accept the decision of DAFWA not to provide him
directly with a copy of Dr Edward-Smith's report. On a number of occasions over a period of some weeks he requested DAFWA to release the report to him together with the briefing notes given to Dr Edward-Smith. He declined to give DAFWA written authority to send the report to his doctor. Mr Fels remained at his accommodation at the research station on directed sick leave.
39 On 13 June 2008 Mr Fels sent an email to Mr Kanagasabapathy
Vijeyen, manager workplace reform, copied to a number of members of Parliament, requesting access to his personal files, Dr Edward-Smith's medical report and the briefing notes given to Dr Edward-Smith.
40 On the same day Mr Fels sent an email to Mr Michael Bowley,
regional manager, Northern Agricultural Region, noting that Mr Bowley had telephoned Mr Fels' brother regarding a proposed meeting in Perth with Mr Fels and his parents. Mr Fels asked for details of the proposed meeting. Mr Bowley replied, suggesting Wednesday afternoon at 4.00 pm. His email stated that it was not imperative that Mr Fels' parents attend. Mr Fels responded saying that he could attend on the Wednesday, but needed to know the agenda and who would be attending.
41 Mr Bowley responded, saying the meeting would be between him
and Mr Fels regarding a resolution of the matter and how he could return to work. Mr Fels responded stating that he intended to continue his 'refusal to participate in improper conduct at the front gate on Monday morning'. He said 'I have been shut out of my career and I have nothing to lose'. Mr Bowley emailed Mr Fels expressing disappointment and stating that he had no option other than to contact his family as they had been nominated as an emergency contact.
42 Mr Fels replied that he was with his family and that they supported
him. He then nominated his brother Daniel as his emergency contact. He sent an email to Mr Bowley stating that his parents were distressed and angry as a result of his attempt to involve them. Mr Bowley sent an email on 19 June 2008 stating that he had tried unsuccessfully to get in touch with Mr Fels and was concerned for his well-being.
Further email correspondence ensued.
On 29 July 2008 the report of Dr Edward-Smith was disclosed in response to Mr Fels' Freedom of Information (FOI) application.
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45 Mr Fels initially declined to see a psychiatrist, but eventually saw
Dr Ross Manners. In his report to Mr Fels' general practitioner dated 15 July 2008 Dr Manners expressed the opinion that Mr Fels had a 'mildly eccentric way of reacting to his work-related stresses', but did not have a paranoid disorder or a 'social phobia', and was not suffering from any form of delusional disorder. Dr Manners noted a history of ADHD (Attention Deficit Hyperactivity Disorder) treated with dexamphetamine.
46 Mr Fels sent Dr Manners' report to DAFWA. DAFWA took some
weeks to consider it. DAFWA then advised Mr Fels that the report did not certify that Mr Fels was fit for work. There was some further argument between the parties about the effect of the report.
47 On 11 November 2008 Mr Kim Waller, director human resources,
wrote Mr Fels confirming that Dr Manners' report was not an adequate certification of fitness to work, but that as he (Mr Fels) was claiming that he no longer required medical treatment, the department deemed him to be on leave without pay unless other leave arrangements were made.
48 Mr Fels wrote by email to Mr Bowley on 14 November 2008 that his
psychiatrist's report did in fact indicate that he was fit for work. Mr Bowley replied to the effect that an express medical confirmation of fitness to work was required. Mr Fels responded saying that he would obtain a further report. He said he needed to clear his reputation. He said he wanted to work. He said the management had 'taken a short cut that involved the denial of existence and effective plagiarism of several years of my work'. All management had to do, he said, was 'acknowledge my allegation of improper conduct and deal with it appropriately'. He indicated that he would seek to reverse the leave without pay direction.
49 In a further report dated 1 December 2008 Dr Manners repeated the
opinions that he had expressed in his first report, adding that Mr Fels was not suffering from 'mood disorder other than some features of an adjustment disorder as a result of pressures being applied to him by his employer'. These features were not of such severity to enable a diagnosis of adjustment disorder. According to Dr Manners, Mr Fels was completely fit for work.
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50 In light of the contents of Dr Manners' second report, Mr Waller
wrote a letter to Mr Fels dated 7 January 2009. In his letter Mr Waller
referred to the report of Dr Manners dated 1 December 2008 and said:The Department having now received this medical advice, and, in the interest of resolving of this matter, hereby confirm your employment status to return to work and resume duties as soon as practicable.
Your line managers … have been advised of your impending return to work, and, meaningful work in plant breeding programmes (that you have participated in before), is available for your immediate start at the Wongan Hills Research Station.
You hereby instructed to contact your line managers, by close of business 13 January 2009, to confirm your date of return to work at the Wongan Hills Research Station.
On 12 January 2009 at 12.21 pm Mr Fels sent an email to
Mr Dunstall:
I just read Kim Waller's 7/1/09 letter, which supersedes all previous directives for me to not attend work.
I am having lunch now, and I will be at work at 1.30 pm today.
I remind you that I made an allegation of improper conduct on 21/2/08. This allegation hasn't yet been acknowledged or addressed. I also have a number of other concerns over bullying, the harassment of my parents, loss of income, loss of accrued medical leave.
52 On 12 January 2009 Mr Fels returned to work. He was directed to
do work which was not plant breeding work, despite the terms of the letter dated 7 January 2009. He was directed to the 'Pedigree Seeds Division'. Mr Fels was not happy about this and complained accordingly to Mr Dunstall.
One week after his return to work Mr Fels took long service leave.
On 9 March 2009 Mr Waller sent a letter to Mr Fels:
Further to our letter of 7 January 2009 I am sending this letter as confirmation of the details for your return to work at the Wongan Hills Research Station.
You have been found meaningful and gainful employment in your role as a Technical Officer at the Research Station. As of 9 March 2009 you are required to work in Seed Industry Services …
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In an email to a Mr Richard Bank dated 9 March 2009 Mr Fels said, amongst other things:
I am returning to work tomorrow after some long service leave, and I feel that I need help with respect to a directive I got today … for me to work for Seed Industries Testing and CVT. Comments are as follows –
I have a real deep anxiety about being moved into this job. …
Management knows that I loathe the prospect of working in that shed.I am a highly skilled plant breeding technician, but the Ped Seed/CVT job isn't plant breeding work.
On 12/1/09 I received and complied with a directive to return to work … This directive indicated that I was to do plant breeding work. The directive I received today – to do work that isn't plant breeding – is a betrayal of the undertaking in the original letter.
I have been in a messy dispute with management since 2007. This dispute is unresolved and my concerns … are still being ignored. This increases my anxiety.
I've been wrongfully labelled as mentally ill (I'm not …), but management has refused to acknowledge to me that I’m sane. The humiliating prospect of returning to work for an employer who refuses to acknowledge my sanity further increases my anxiety.
56 Mr Fels then proceeded in his email to provide some examples of
matters relating to his work which were adding to his anxiety.
He concluded his email in the following terms:My anxiety and frustration is very real, and I really can't and won't attend work for CVT/PED Seed tomorrow.
57 On 9 March 2009 Mr Fels attended upon Dr Manners. During this
consultation Mr Fels told Dr Manners that he was apprehensive and was becoming increasingly concerned and worried about the negative attitude of management towards him. He told Dr Manners that he felt intimidated. Dr Manners formed the view that Mr Fels was developing features of an adjustment disorder.
58 On 10 March 2009 Mr Fels sent an email to Mr Dunstall stating that
he was 'unwell' and would apply for sick leave. He did not provide any
details of his disorder. Mr Fels did not return to work on 10 March 2009.59 On 25 March 2009 Mr Fels lodged his claim for workers'
compensation payments together with a first medical certificate dated 23 March 2009. In the claim Mr Fels identified the date of injury as
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9 March 2009. He specified the relevant occurrence to be 'unresolved grievances' and asserted that the injury that he had suffered was 'psychological stress'. The first medical certificate included the worker's description as 'Continuous anxiety and feeling of stress due to workplace grievances'. The medical assessment was: 'Patient was agitated due to the unresolved problems at work. There is a continuous underlying feeling of wrongdoing, which causes his inability to work'. The certificate was for 30 days.
Over the next 10 months or so, Dr Manners saw Mr Fels on a further nine occasions (4 May 2009, 4 June 2009, 2 July 2009, 30 July 2009, 27 August 2009, 24 September 2009, 22 October 2009, 24 November 2009 and 12 January 2010).
61 On 17 April 2008 DAFWA by notice of that date instituted
disciplinary proceedings against Mr Fels. The proceedings were not progressed at that point in time due to the question surrounding the medical certification of Mr Fels' fitness to work.
62 By further notice dated 18 March 2009 DAFWA in effect
re-instituted the disciplinary proceedings. In the notice DAFWA asserted that Mr Fels may have committed acts which constituted breaches of discipline under s 80 of the Public Sector Management Act 1994. The notice then set out the alleged acts. In summary they were:
1. communicating directly with a minister of the Crown, this allegation relating to emails allegedly sent to the minister by Mr Fels in February and March 2009 regarding Mr Fels's grievances concerning the alleged improper conduct; 2. failing to obey a lawful instruction, this allegation relating to DAFWA's direction to Mr Fels to attend and seek medical attention and allegedly failing diligently to address that instruction; 3. withdrawing his labour after being notified on 7 February 2008 that he was being transferred to the barley breeding project;
4. wilfully withholding by Mr Fels of DAFWA data and information. The disciplinary complaint proceeded. As a result of the 63
proceedings, Mr Fels's employment was terminated in November 2009. Mr Fels appealed the decision to terminate his employment to the Public
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Service Appeal Board. On 5 August 2009 the Board dismissed Mr Fels' appeal.
64 On 23 March 2011 and 20 April 2011 at the request of DAFWA,
Mr Fels was examined by Dr Victor Cheng, consultant psychiatrist. Following these examinations, Dr Cheng produced a report dated 23 March 2011 [sic May]. In his opinion Mr Fels was not capable of working, but was not suffering any recognisable psychiatric condition.
65 On 31 October 2011 a Medical Assessment Panel (the Panel) was
constituted pursuant to s 145C of the Act to determine whether Mr Fels had a diagnosable psychiatric disorder. The Panel determined that question in the negative. By s 145E(6) and s 145E(7), the determination is final and binding and constitutes conclusive evidence as to the matters determined. Therefore, by 8 November 2011 Mr Fels did not suffer from a diagnosable psychiatric compensable injury.
66 On 25 November 2010 Mr Fels made an application to WorkCover's
Dispute Resolution Directorate to resolve the dispute with DAFWA. On 8 December 2010 DAFWA filed its reply. As the dispute was not resolved through the conciliation process, the matter proceeded to arbitration on 23 - 27 July 2012.
Arbitrator's decision
67 After noting that Mr Fels bore the onus of proving, for the purposes
of s 5(4), that his disorder did not arise wholly or predominantly from an excluded matter, the learned arbitrator observed that the onus could be discharged by proving that any excluded matters or expectations of the same were not the entire or predominant causal factors, or otherwise showing that there was no predominant factor.
68 Mr Fels pointed to 11 unresolved workplace issues as being
causative of his disorder, none of them excluded matters. These are set out at [47] of the reasons. DAFWA argued that the disciplinary proceedings together with a transfer to a different job were the predominant causal factors.
69 The learned arbitrator found that there appeared to be a temporal
connection between the 2009 disciplinary proceedings and the commencement of Mr Fels' disorder, sufficient to establish a prima facie causal nexus between the claimed injury and a matter of discipline, or at least an expectation of discipline. This finding was made on the basis of Dr Manners' reports which indicated that he observed Mr Fels' level of
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anxiety increase as the disciplinary process unfolded. The evidence did not demonstrate, however, that the disciplinary process, or an expectation of discipline, was the whole or predominant cause of the disorder, even though it made some impact on Mr Fels' health.
70 The learned arbitrator also considered the relevance of the transfer of
Mr Fels to a different position. He found that this transfer, which was proposed in 2007 and given effect in March 2009, upset Mr Fels and was therefore a relevant factor, but again the evidence did not show that the transfer was the whole or predominant cause of the worker's disorder.
71 The learned arbitrator indicated that he had given consideration to all
of the factors which contributed to the adjustment disorder suffered by
Mr Fels including the disciplinary process and the transfer.72 He also considered Mr Fels' ongoing grievance with his employer's
conduct with respect to the announcement made in 2007 of the planned divestment by DAFWA of the brassica breeding program in which Mr Fels had been closely involved over many years.
The learned arbitrator said [121] – [122]:
I have considered all the factors which allegedly contributed to the worker's stress-related disorder, including the disciplinary process and transfer. Nonetheless, other factors also have relevance when carefully considered. I have taken into account the worker's consistent grievance with the employer as to the alleged 'improper conduct'. Further, in early January 2009, he was first told one thing, then the next as to what work and in what division he was working. That change clearly upset the worker. I find all the 2008 issues, which had not 'gone away' from the worker's mind resurfaced, and on top of that, he was further distressed regarding the nature of the work he was directed to do.
Ultimately I am satisfied that it was the cumulative effect of all various stresses as referred to above including all the factors alleged by the worker (including those referred to in par 43 herein which I have accepted) and the disciplinary processes (and expectation thereof) and proposed transfer which led to the worker's disorder. I find in essence, there was no one predominant factor. The disciplinary and transfer factors were a cause, but not the entire or predominant cause. I am satisfied that also causative included the worker's genuinely held fears about being required to participate in what he saw as improper conduct by, inter alia, attending work as directed, his grievances about being directed to see Dr Edwards-Smith and the sequelae, that he was directed to an area different to the one he was told he was working in (March 2009) and the other identified grievances. Put broadly, and without intending to be too
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general, all these factors together became collectively too much for the
worker to cope with.
74 The learned arbitrator found no evidence of any non-work related
factors contributing to his disorder: [124]. He was therefore satisfied that the psychiatric condition was an injury as defined by s 5(1) for the purposes of s 18: [126].
75 The learned arbitrator's ultimate decision in this case was based on a
finding of fact that in the period 4 May 2009 to 7 February 2011 Mr Fels was totally unfit for work by reason of a diagnosed adjustment disorder. This finding was based on an acceptance of the evidence of Mr Fels and his psychiatrist Dr Manners. The period of incapacity was determined on the following basis:
1.
The first medical certificate did not set out a diagnosis or recognisable psychiatric disorder as the basis for disability.
2.
Dr Manners first reported a diagnosis of an adjustment disorder with anxious and depressed mood on 4 May 2009.
3.
Dr Cheng did not dispute Dr Manners' diagnosis, but found that Mr Fels was not suffering a recognisable psychiatric condition when he examined him for the purpose of his report of 23 May 2011. The MAP did not dispute Dr Manners' diagnosis either: see report 8 November 2011.
4.
Although Dr Manners stated in his report of 1 March 2011 that Mr Fels continued to have an adjustment disorder as at the date of his last examination, being 7 February 2011, the learned arbitrator was not satisfied that the psychiatric disorder caused Mr Fels to be unfit after that date.
DAFWA'S grounds of appeal
Ground 1
DAFWA contends that the arbitrator made an error of law by finding that the applicant suffered an injury for the purposes of the Act.
77 The submission is that the arbitrator erred in principle in holding that
Mr Fels had discharged the onus of proving that his stress-related disorder did not wholly or predominantly arise from an excluded matter, being a matter mentioned in s 5(4).
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DAFWA's counsel submitted that the learned arbitrator erred by citing Granitto v Catholic Education Office [2011] WACC C17-2011 [16] as authority for the proposition that the worker's onus of proving that the stress-related disorder did not arise from a s 5(4) matter could be discharged by proving that there was no predominant causal factor. The learned arbitrator was apparently unaware of the outcome of the employer's appeal to the Court of Appeal in that case.
79 In my view, there was no misdirection occasioned by the arbitrator's
reference to the learned commissioner's decision in Granitto. The proposition in question is a truism. To prove there was no predominant factor giving rise to the stress-related disorder in question is to prove that the injury did not arise wholly or predominantly from an excluded matter. The Court of Appeal decided that no question of law arose in respect of the finding of the arbitrator in that case that the worker had failed to discharge the relevant burden of proof. The decision of the Court of Appeal also dealt with a procedural fairness issue unrelated to s 5(4). The decision does not, contrary to DAFWA's submission, authorise any test of causation.
80 The burden of proof in Granitto was not discharged because the worker gave no evidence with respect to the potential contribution of the relevant excluded matters and was otherwise disbelieved as to his evidence with respect to causation.
81 There are no striking similarities between the present case and
Granitto as submitted. In the present case the worker's evidence was accepted and afforded a proper basis, together with the medical and other evidence, for findings of fact from which it could be inferred that the excluded matters, taken together, were not the predominant cause of the worker's stress. There is no reason to think the learned arbitrator would have come to a different view had he been aware of the decision of the Court of Appeal.
82 I would add that DAFWA's submission that the learned arbitrator
failed to make any reference to the transfer as a causative factor is
incorrect. It was dealt with expressly at [119].83 The questions of law enunciated by DAFWA do not arise in
circumstances where the decision is a factual one, based on an inference
drawn from the facts of which the arbitrator is satisfied on the evidence.
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Grounds 2 and 3
84 DAFWA contends positively that as a matter of fact Mr Fels'
disorder was caused by stress occasioned by disciplinary proceedings or a transfer within his employment, or the expectation of those things. It invites this court to come to a different view of the facts, the very approach that the Court of Appeal corrected in Granitto. No question of law arises in respect of this ground.
Ground 4
This is not a ground of appeal.
Mr Fels' appeal
86 The grounds of Mr Fels' appeal are merely challenges to findings of
fact. They do not disclose any question of law, in my opinion, notwithstanding the reference in ground 4 to a failure to take into account the report of Dr Manners dated 1 March 2011, and the reference in ground 5 to a failure to provide adequate reasons for deciding that Mr Fels was not suffering from an adjustment disorder between 8 February and 7 November 2011.
87 As I have noted, the learned arbitrator found that the first medical
certificate of Dr G Zandstra dated 26 March 2009, indicating incapacity from 9 March 2009, did not describe a recognisable psychiatric disorder. It was too vague to be of assistance: [13]. The learned arbitrator found that on 9 March 2009 Mr Fels did not want to go back to work: [110].
88 The learned arbitrator dealt with the reports of Dr Manners at length,
noting that he had seen Mr Fels from 9 July 2008. He noted that, according to Dr Manners, as at 9 March 2009, Mr Fels was developing features of an adjustment disorder. The arbitrator did not interpret that observation to amount to a diagnosis. In any event, Mr Fels was due to resume work at that time. Dr Manners did not suggest that he was unfit to do so. By 4 May 2009, however, Dr Manners was of the view that Mr Fels had developed an adjustment disorder with anxious and depressed mood and was unable to work.
89 There was a progress medical certificate issued by Dr Lochner on
14 April 2009, indicating 'stress anxiety – continuing unresolved issues in the workplace'. It certified Mr Fels 'totally unfit from 10 April 2009 to 11 May 2009'. The certificate is not mentioned, but it can be inferred from the way in which Dr Zandstra's certificate was dealt with, that the progress certificate was also seen to be unhelpful. Clearly, the learned
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arbitrator took the view that Dr Manners' opinion was a more reliable basis for the relevant findings than the medical certificates. There is, therefore, an adequate evidential basis for the finding that incapacity existed from 4 May 2009. No error of law is disclosed.
90 As to the end point, the learned arbitrator was confined by the
assessment of the Panel. He also had Dr Cheng's opinion, which he accepted that as at the date of his examinations on 23 March and 20 April 2011 Mr Fels was not suffering a psychiatric disorder. The question was: up to what point prior to 8 November 2011, the date of the Panel report, was Mr Fels incapacitated due to compensable injury?
91 The learned arbitrator dealt with this from [135] - [140]. He was
satisfied by the report of Dr Manners dated 1 March 2011 that Mr Fels was continuing to suffer an adjustment disorder and to be incapacitated up to 7 February 2011 the last date of examination by him.
92 Having accepted Dr Cheng's opinion, it would have been speculative
to allow any period of incapacity beyond 7 February 2011. In my view, it was a matter for the arbitrator to determine, doing the best he could on the evidence. It cannot be argued that there was no reasonable basis for his finding so as to give rise to a question of law.
The learned arbitrator did not fail to take account of the evidence. He did not fail to give adequate reasons.
Conclusion
94 I have for the purpose of the hearing of this matter given
consideration to the evidence and the findings. In my view, each appeal is essentially a challenge to the factual findings of the learned arbitrator. I am not satisfied that either appeal gives rise to a question of law. Each application for leave to appeal is dismissed.
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