Department of Community Services wrongly named as Department of Children's Services v Rydzewski
[2006] NSWWCCPD 307
•14 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Department of Community Services (wrongly named as Department of Children’s Services) v Rydzewski [2006] NSWWCCPD 307
APPELLANT: Department of Community Services (wrongly named as Department of Children’s Services)
RESPONDENTS: Danuta Rydzewski
INSURERS:GIO Workers Compensation (Treasury Managed Fund)
FILE NUMBER: WCC6244-05
DATE OF ARBITRATOR’S DECISION: 13 September 2005
DATE OF APPEAL DECISION: 14 November 2006
SUBJECT MATTER OF DECISION: Sections 4, 9A and 11A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers.
REPRESENTATION: Appellant: Vardanega Roberts
Respondent: Napier Keen
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 13 September 2005, is confirmed.
The Appellant is to pay the Respondent’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 12 October 2005 the Department of Community Services (wrongly named as Department of Children’s Services) (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 13 September 2005.
The Respondent to the Appeal is Danuta Rydzewski (‘the Respondent’).
The Respondent is and was, at all relevant times, employed as a Senior Customer Service Officer at Penrith Community Services Centre. The Respondent alleges that she suffered injury being adjustment disorder/major depression/dysphonia in the course of her employment on 8 July 2003.
The Appellant presented a WorkCover NSW Medical Certificate dated 11 July 2003 issued by Dr Rundle, ENT Surgeon, to the Respondent. That document certified a diagnosis of dysphonia and that the Respondent’s employment was a substantial contributing factor to the injury. It further certified that the Respondent was fit for suitable duties from 8 July 2003 to 8 September 2003. The Respondent also furnished WorkCover NSW Medical Certificates issued by her General Practitioner, Dr Khan which certified that she was suffering from dysphonia and was fit for suitable duties. The Respondent continued to work up until 17 September 2003 on which date Dr Khan certified that she was unfit to work.
The Respondent claimed and was paid workers compensation benefits by the Appellant’s Insurer. The Insurer made payments with respect to medical, hospital and associated expenses until 14 April 2004 and weekly benefits payments until 19 May 2004 upon which dates liability was declined by the Insurer. Correspondence received by the Respondent from the Insurer stated that liability was declined upon reliance of the provisions of section 4 and section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’).
The Respondent remained absent from her employment until 9 June 2005 from which date she has been performing work on restricted hours, namely 14 hours per week.
The Respondent filed an Application to Resolve a Dispute with the Commission on 29 April 2005 seeking orders with respect to her entitlement to weekly payments and medical expenses. As noted above the Respondent alleged in that Application that the date of injury was 8 July 2003 however at Part 3 of her Application reference is made to a Statutory Declaration sworn by the Respondent attached to that Application in which a description of the occurrence of injury is contained. It is clear from the contents of that Statutory Declaration and the manner in which the proceedings were conducted before the Commission that the Respondent’s allegation was that she suffered injury as a result of a series of incidents occurring in the course of her employment between March 2003 and September 2003. That Application was heard before the Arbitrator on 29 August 2005. The Arbitrator’s Statement of Reasons for Decision were published on 13 September 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 13 September 2005 records the Arbitrator’s orders as follows:
“1.Respondent to pay $323.00 per week from 18 May 2004 to 30 September 2004, $328.90 per week from 1 October 2004 to 31 March 2005 and $334.10 per week from 1 April 2005 to date and continuing to be adjusted in accordance with the Act.
2.Respondent to pay s60 expenses.
3. Respondent to pay the Applicant’s costs as agreed or assessed.”
The Arbitrator’s Reasons for Determination (‘Reasons’) were attached to the Certificate in accordance with Rule 73 of the Workers Compensation Commission Rules 2003.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred in law:
(a)By reason of his failure to exercise his statutory duty to fairly and lawfully determine the Appellant’s application for leave to cross-examine the Respondent by failing to give appropriate or due weight to the Appellant’s submissions.
(b)By failing to provide adequate reasons for disallowing the application for leave to cross-examine the Respondent Worker.
(c)By reason of his failure to exercise his statutory duty to fairly and lawfully determine the application for leave to adduce oral evidence from Mr Gary Martin by not giving appropriate or due weight to the Appellant’s submissions.
(d)In holding that the Respondent suffered a psychological injury within the meaning of section 4 of the 1987 Act to which employment by the Appellant was a substantial contributing factor within the meaning of section 9A of the 1987 Act.
(e)In failing to give adequate reasons for finding that the Appellant’s actions with respect to discipline or performance appraisal did not amount to reasonable actions by an employer within the meaning of section 11A of the 1987 Act.
(f)In failing to properly exercise his statutory discretion to fairly and lawfully determine the reasonableness of the Appellant’s defence founded upon section 11A of the 1987 Act in applying a criterion of an objective test rather than a subjective test of the Respondent’s own perception of unreasonable treatment.
(ii)Whether the Arbitrator erred in fact with respect to findings:
(a)That the diagnosis of a physical injury to the voice or vocal chords of the Respondent made by Dr Rundle was incorrect.
(b) That the Respondent suffered a loss of voice (“dysphonia”) secondary to or as a consequence of a work related psychological injury.
The Issues in Dispute enumerated above reflect the matters raised by the Appellant at paragraph 4 of its Statement of Grounds For Appeal which accompanied its Application.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 at paragraph 2.5 of its Application states that the application for leave to make the appeal and the appeal may be decided solely on the basis of the written Application and any written Notice in Opposition lodged. At page 3 of the document annexed to that Application headed “Appellant’s Statement of Grounds for Appeal” the Appellant submits:
“… that the whole of the matter is not capable of determination on the papers pursuant to section 354(6) of the WIMWC Act …”
The Appellant proceeds to repeat the substance of the grounds of appeal set forth in paragraph 4 of that document. An assertion is made that the particular circumstances of this appeal render it appropriate that the parties be allowed to supplement the written outline submissions with oral submissions on the matters in dispute.
The Respondent submits that both the Application for Leave to make the appeal and the appeal itself may be decided solely on the basis of the written Application and written Notice of Opposition. The Respondent asserts in submissions included in its Notice of Opposition that the Appellant has had ample opportunity to articulate its submissions and that the matter should be dealt with “on the papers”.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act. The amount of compensation at issue on the appeal exceeds the sum of $5,000 and is at least 20% of the amount awarded in the decision appealed against and thereby the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged one day later than the 28 day period from the date of the Arbitrator’s decision as specified by section 352(4) of the 1998 Act and Part 16 Rule 16.2(1) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’).
Rule 16.2(11) of the 2006 Rules which provides:
“(11)The Commission constituted by a Presidential Member may, if a party satisfies the Presidential Member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
In its Application the Appellant has stated that the one day delay in filing the Application was occasioned by reason of the late receipt of submissions drafted on behalf of the Appellant by Counsel. It is stated that the Application was not able to be lodged at the Commission’s Registry prior to 4.30pm on the afternoon of 11 October 2005. It is asserted that there would be demonstrable and substantial injustice should the right to seek leave to appeal be lost by reason of the breach in respect of time requirements.
The principles relevant to the exercise of discretion to extend time were considered by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479. Those principles have been discussed and applied in numerous decisions of the Commission (see for example Alexandru v State Rail Authority of NSW [2004] NSW WCCPD 54).
Having regard to the very brief period by which the time limitation was breached, the conduct of the Appellant in promptly serving a copy of relevant documents upon the Respondent (as stated in the Application such was effected on 11 October 2005) and the nature of the litigation, I am of the view that “exceptional circumstances” within the meaning of Rule 16.2(11) exists in the present matter.
The Appellant has raised substantial issues for determination in its Application and I am of the opinion, that should the Appellant lose the right to seek leave to appeal, demonstrable and substantial injustice in terms of Rule 16.2(11) would likely occur.
I formally order that time to apply for leave to appeal be extended to 12 October 2005 and have earlier noted that the requirements of section 352(2) of the 1998 Act have been satisfied. Having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator was noted by him at paragraph 8 of his Reasons. In addition to that documentary material the Arbitrator at the hearing admitted into evidence before him the documents produced by Dr Rundle (excluding the document dated 31 May 2005 noted at page 36, line 45 of the transcript of proceedings). The material produced by Dr Rundle which came before the Arbitrator is addressed during the course of Reasons stated by the Arbitrator and, importantly, the question of weight of the opinion evidence of Dr Rundle expressed in those notes is addressed at paragraph 27 of those Reasons.
The Arbitrator, on hearing, received no oral evidence. The Appellant’s applications before the Arbitrator with respect to leave to cross-examine the Applicant and to call oral evidence of Mr Gary Martin were refused by the Arbitrator. As noted by the Arbitrator at page 2 of his Reasons, reasons for refusal of those applications were given at the hearing and are recorded in the transcript of proceedings which is before the Commission.
In her Statutory Declaration sworn 4 April 2005 the Respondent narrates the circumstances which she alleges gave rise to her incapacity and need for treatment. At paragraph 4 of that Declaration she states:
“Between March and July 2003 I began to develop symptoms such as loss of power in my voice and hoarseness. I could not ignore these symptoms as they were constant. At the same time I was feeling very stressed. As a result I was ultimately required to undergo medical treatment. I believe that these problems first commenced in March, 2003 following a work performance interview which had been convened by my Supervisor of two employees in my Department. The Supervisor was Gary Martin and the two employees in question were Edna Rahmat and Jackie Atanasovski.”
The Respondent further states in her Statutory Declaration that the performance of Ms Rahmat and Ms Atanasovski (‘the two employees’) had been the subject of complaints and adverse reports prior to March 2003. The work performance of the two employees was the subject of discussion at a meeting convened by Mr Gary Martin initially attended by three Case Managers. The Respondent was invited to join the meeting given that the Respondent was the immediate Supervisor of the two employees. The Respondent, at that meeting, delivered a short address confirming her view that the two employees had “limited ability”. The Respondent advised the Case Work Managers and Mr Martin that she did not wish to be involved in any disciplinary proceedings or work performance issues relating to the two employees. The Respondent further stated that on earlier occasions attempts to discipline the two employees had resulted in “Union action and other inter-office disputes”.
The Respondent further states that Mr Martin met with the two employees on 13 March 2003 following which a “grievance” was lodged by one of the two employees against Mr Martin and that employee ceased work alleging that she was suffering from “anxiety”. Shortly thereafter the second of the two employees left the office “on sick leave”. This left the Respondent with one temporary staff member to service a large office and clients for a period of approximately three weeks. The Respondent had perused some notes which Mr Martin had provided concerning the events at the meeting with the two employees which made mention of the Respondent’s name including a notation that the Respondent “was complaining about them, which was not a true reflection on the meeting that I had had with Gary and the Case Work Managers”.
The Respondent proceeds to narrate a number of incidents which occurred in respect to her dealings with Mr Martin and a Consultant Psychologist, Tonie Gilbert, who was retained by the Appellant with respect to “staff issues”. The Respondent proceeds to state that, upon the return to work of the two employees, relations between herself and those employees was particularly strained and detail is given of an incident which occurred on 23 May 2003 when it is alleged that one of the two employees made “an outburst” stating:
“Get away. I’m sick of you. I had to join the Union because of you. Can’t you see I’m stressed? I come in at 8.00am every day and do my work. Everybody is sick of you!”
The Respondent reported this incident to Mr Martin. The Respondent proceeds to describe circumstances which gave rise to her perception that Mr Martin’s attitude to her had changed and it is suggested that Mr Martin had no interest in what the Respondent had to say. The Respondent proceeds to describe the conduct of Mr Martin including criticism of her by Mr Martin.
The Respondent states that by 31 July 2003 her voice was “inoperable to the point of total voice loss”. The Respondent states that she had earlier, on 11 July 2003, consulted her General Practitioner Dr Khan who referred her to Dr Rundle. As noted above, WorkCover NSW Medical Certificates were issued certifying the Respondent as being fit for suitable duties from 8 July 2003 to 8 September 2003.
The Respondent narrates an incident of conflict between herself and one of the two employees which occurred on 28 August 2003. This incident was the subject of investigation by Mr Martin thereafter. A further incident occurred on 16 September 2003 when anonymous correspondence was received by the Respondent at her place of work which states:
“Where were you at training you lazy cow? Aren’t you supposed to be a leader? See you next time.”
A request by the Respondent that the Police be notified was declined by Mr Martin. The Respondent returned to consult Dr Khan on 17 September 2003 at which time the Respondent was certified as being unfit for work.
Medical evidence adduced on behalf of the Respondent before the Arbitrator included reports from Candice Peters (Speech Pathologist), a report from Dr Fazeela Zolfaghari (Clinical Psychologist), Dr Andrew Robertson (Psychiatrist) and Dr Augustus Pusic (Consultant Psychiatrist). In her report dated December 2003 Ms Peters noted that treatment of the Respondent’s dysphonia had been assessed in July 2003 by her colleague Ms Kay following which the Respondent’s case management was assumed by Ms Peters. Ms Peters was of the view as expressed in the last mentioned report that the Respondent:
“… has moderate to severe laryngeal muscle-tension dysphonia, in which inefficient respiration and voice use contributed to the development of the condition, but there is undoubtedly a substantial psychogenic component related to the emotional stress and turmoil experienced as a result of her workplace disputes.”
Dr Zolfaghari in his report dated 6 January 2004 noted that as at that date he had seen the Respondent on seven occasions and that he was of the view that:
“Ms Rydzewski continues to experience very high distress levels about work related issues and at this stage I am of the opinion that she is not yet psychologically fit to return to work.”
Dr Robertson in his report of 26 July 2004 concluded that life circumstances experienced by the Respondent acted as predisposing factors towards her psychiatric disorder. Dr Robertson’s diagnosis was that the Respondent probably suffered from an Adjustment Disorder with depressed and anxious mood. Dr Robertson expressed the proviso that a diagnosis of Major Depression would have to be considered. Dr Robertson expressed the view that:
“Her hoarseness is the result of a Conversion Disorder.”
Dr Pusic in his report of 7 July 2005 set forth a detailed history as taken from his patient, the Respondent, and diagnosed that she was suffering from “Generalised Anxiety Disorder (DSMIV)”. Dr Pusic expressed the view that he considered the Respondent totally unfit for work from the date of his first consultation being 12 March 2004 and that she remained so until he considered her fit to return to suitable duties on 25 May 2005.
Both the Appellant and the Respondent placed before the Arbitrator Statements by Mr Gary Martin. There is little, if any, material in each of those Statements which challenges the essential facts as outlined by the Respondent in her aforementioned Statutory Declaration. The attachments to the Statement of Mr Martin adduced by the Appellant serve to confirm that there was significant interpersonal conflict among members of the Respondent’s staff at the Penrith Community Services Centre. Those attachments include a Statement by Ms Atanasovski which confirms the occurrence of a verbal altercation between herself and the Respondent. That Statement conflicts in detail with the Respondent’s assertions as to what occurred in particular as to the incidents of raised voices.
The report of Ms Tonie Gilbert dated 8 August 2003 contains a summary of history and investigations conducted by Ms Gilbert as well as a summary of injury management. Ms Gilbert expressed the view that:
“Her appearance, behaviour, speech, mood, demeanour, presentation and reported symptoms on the day of interview were not consistent with a Mood or Anxiety Disorder as specified in DSMIV.”
Ms Gilbert noted her observation of variations of the Respondent’s voice production and expressed the view that “it seems likely that emotional factors play a significant part in the maintenance of her Dysphonia”. Ms Gilbert then purported to address matters raised by the provisions of section 9A and section 11A of the 1987 Act in the context of the facts as summarised in her report.
The Appellant adduced reports from Elizabeth Boyling (Rehabilitation Counsellor) and Ms Stephanie Stock (Consultant Psychologist). The report of Ms Stock dated 23 September 2003 was, I note, omitted from the Arbitrator’s summary of documentary evidence contained in paragraph 8 of his Reasons. The reports of Ms Boyling and Ms Stock did not in any material respect raise any issues of fact with regard to the allegations made by the Respondent in her case.
A report of Dr PR Brown (Consultant Psychiatrist) dated 19 November 2003 was adduced on behalf of the Appellant before the Arbitrator. It was Dr Brown’s opinion that the Respondent had developed an Adjustment Disorder whose symptoms include anxiety about facing the situation at work and her Manager. He expressed his further view that the Respondent had developed dysphonia as the result of psychological factors and that that phenomenon constituted a Conversion Disorder. Dr Brown expressed the view that the Respondent was unable to return to work or to address the problem at work until the problem is solved. Dr Brown further stated that if the Respondent’s account of the relevant facts is valid:
“Then in my opinion her psychological condition is the result of her work. Her employment was the substantial contributing factor.”
It should be noted that Dr Brown expressed the view that, should the facts as found reveal that at relevant times there was a legitimate concern about the Respondent’s work performance he would be of the view that her condition:
“Is not a matter for workers compensation as it is a reaction to a legitimate managerial concern.”
The notes of Dr Rundle which, as noted above, were tendered on behalf of the Appellant before the Arbitrator contained a certificate dated 8 July 2003 headed “To Whom it May Concern” which stated, in part:
“This lady has a vocal problem which I feel is mainly due to overuse and probable misuse of her voice.”
At the hearing before the Arbitrator the parties reached agreement with respect to a number of matters including the relevant chronology of the Respondent’s absences from work, relevant economic facts and as to entitlement of the Respondent in the event that she succeeded with respect to the claim before the Arbitrator. The transcript of proceedings recorded those matters at page 6 as follows:
“30 The claim is in respect of weekly compensation for
psychological injury from 19 May 2004 to date and
continuing. It was agreed that the applicant was absent
from work at least for 19 May 2004 to 8 June 2005, but
since 9 June 2005 she has been back at work performing 1435 hours per week. It’s agreed that her current weekly
earnings at the date of alleged injury were $928.90 per
week. The current comparable is $1,008 per week. It’s
also agreed that she’s currently earning $386 per week.40 The respondent has agreed that the applicant was, in
fact, unfit for work during the period claimed, and it
has also been agreed that if the applicant is successful
on the issues to be determined, which are issues relating
to injury, that the outcome would be that she would be45 entitled to an award at the statutory rate for a single
worker with no dependants. Is that correct?MR PERRY: Yes.
50 MR NIVEN: Yes.”
The Appellant, in a document annexed to his application headed “Appellant’s Outline of Submissions” sets forth eleven paragraphs (numbered 9 – 19 inclusive) each challenging the Arbitrator’s rulings and/or findings. It is submitted on behalf of the Appellant that the Arbitrator erred:
(i)In refusing the Appellant’s application for leave to cross-examine the Respondent.
(ii) In refusing the application for leave to call oral evidence from Mr Martin.
(iii)In failing to adequately articulate reasoning with respect to evaluation of expert evidence.
(iv)In failing to provide adequate reasons for rejecting the opinion of Dr Brown with respect to causation of the Respondent’s psychological condition.
(v)In determining the facts and application of principle with respect to the provisions of section 4 and section 9A of the 1987 Act.
(vi)In determining the relevant facts and application of principle arising from the provisions of section 11A of the 1987 Act, in particular as to the nature of the “test” to be applied to facts as found.
DISCUSSION AND FINDINGS
This is an appeal brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:-
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
It is proposed to deal with the Appellant’s stated grounds of appeal as enumerated in paragraph 4(a) – (h) as set forth in an attachment to the Application headed “Appellant’s Statement of Grounds for Appeal”. Those “grounds” must be considered in conjunction with the “Appellant’s Outline of Submissions” contained in paragraphs 9 – 19 of the aforementioned attachment.
The Appellant argues that the Arbitrator committed an error of law “ by reason of his failure to exercise his statutory duty to fairly and lawfully determine the ( Appellant’s) application for leave to cross-examine the Respondent Worker by not giving appropriate or due weight to the Appellant’s submissions” (paragraph 4(a)). It is also asserted by the Appellant that the Arbitrator erred in law by reason of his failure to provide adequate reasons for disallowing the Appellant’s application for leave to cross-examine the Respondent Worker (paragraph 4(b)). Whilst it is not articulated by the Appellant it may be seen that these “grounds” impliedly assert that the Appellant, in the manner of conduct of the proceedings before the Arbitrator, was denied procedural fairness. Reliance is placed by the Appellant upon the text of the Commission’s publication “Guideline for the Practice of the Conciliation/Arbitration Process” issued in January 2004 (revised November 2006) (para 10). The Appellant also submits that cross-examination of the Respondent should have been permitted having regard to suggested “conflict” between histories given firstly to Dr Rundle and Ms Peters and that given to Dr Zolfaghari (para 11). The Appellant further submits that contradictions between the contents of a Statement of Mr Martin and the Respondent’s account of particular events required cross-examination of the Respondent to ensure procedural fairness particularly having regard to the relevance of those matters to issues raised with respect to the operation of sections 4, 9A and 11A of the 1987 Act (para 12). It is further submitted that cross-examination should have been permitted given “the content of Dr Rundle’s notes …” (para 13).
The application for leave to cross-examine the Respondent made on behalf of the Appellant is recorded in the transcript of proceedings before the Arbitrator at page 8 (line 29) to page 16 (line 5). Following submissions by Counsel for the Appellant with respect to the application for leave the Arbitrator is recorded as stating:
“I’m against you on the application to cross-examine. It doesn’t seem to me from what I’ve been taken to when I read it that there is such a conflict between Mr Martin and the Applicant to raise an issue of credit that requires cross-examination. One of the things that strikes me about this, I might say, is the extent to which there is agreement between the two. They describe the same things. Some has a bit more detail about precisely where they are and such, but there really doesn’t seem to be a substantive dispute about what happened. It’s a question of what you make of that.”
Prior to the statement by the Arbitrator as recorded immediately above, the transcript reveals that the Appellant’s application was the subject of debate between Counsel and the Arbitrator during the course of which it is clear that the Arbitrator gave the Appellant opportunity to amplify and elucidate submissions in support of the application.
The principles relevant to a consideration as to the entitlement of a party before the Commission to cross-examine a witness was considered by the NSW Court of Appeal in Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (‘Zheng’). It was there stated by Bryson JA in his leading judgment (at para 20):
“As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.”
Bryson JA considered the “legal context” and the relevant law with respect to the conduct of proceedings before the Commission and proceeded to state (at para 37):
“37An assessment of whether the Arbitrator’s decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
It is to be noted that no reference was made during the course of submissions with respect to leave to cross-examine the Respondent to the relevance or otherwise of the contents of the reports of Ms Peters and Dr Zolfaghari. With respect to the contents of Dr Rundle’s report brief reference was made (at page 14 of transcript) to the history recorded by Dr Rundle, however such reference was made in argument when Counsel was dealing with the observations of the witness Mr Martin. It appears that the Arbitrator expressed the view during exchanges with Counsel that it becomes a matter of “medical opinion” a subject with respect to which Mr Martin lacked qualification. It was not explicitly stated that the Appellant’s application was founded upon the need to test the Respondent with respect to recorded histories.
It is my view that the Arbitrator has fairly and properly dealt with the Appellant’s application for leave to cross-examine the Appellant. It was stated by Dr Fleming DP (whose determination was upheld by the NSW Court of Appeal in Zheng) in Aluminium Louvres and Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26:
“… Procedural fairness, in the context of Commission proceedings, does not demand that a party be afforded an unrestricted right of cross-examination in relation to evidence given at an arbitration hearing. To suggest otherwise would be to deny the broad provisions of section 354 of the 1998 Act any meaning or effect, and to force a Commission Arbitrator to conduct arbitration proceedings in the adversarial style of the traditional Courts. This was clearly not the intention of the legislature in the establishment of the Commission.”
With respect to the submissions founded upon suggested conflict with Mr Martin I, as earlier stated, am of the view, as was the Arbitrator, that there was little, if any factual divergence of relevance to be perceived between the contents of the written Statements of the Respondent and Mr Martin. That being the case I am of the view that the Appellant’s application for leave founded upon such suggested conflict was properly refused by the Arbitrator.
Whilst the argument (at para 11) with respect to the suggested conflict between the Appellant’s history as given to Dr Rundle and Dr Peters with that as recorded by Dr Zolfaghari was not explicitly put to the Arbitrator I am not persuaded that the character of any arguable inconsistencies between those histories is such as to be of sufficient significance to warrant granting of leave to cross-examine the Appellant with respect to same. I have reached this view having regard to the contents of the report of Ms Peters dated December 2003 which relates to consultations with the author and a colleague conducted with the Respondent from 17 July 2003 which records:
“Danni’s dysphonia was of sudden onset after a “sore throat”, followed by a bout of laryngitis in March/April of this year, on a background of longstanding disputes in her work environment.”
That first consultation took place very shortly after the first consultation with Dr Rundle and the recording of the history of “a background of longstanding disputes in her work environment” tends to weaken any argument that a “credit issue” of significance is raised as against the Respondent based upon the state of the medical records. In that context I, again, conclude that the Arbitrator’s decision with respect to the Appellant’s application for leave to cross-examination was a proper exercise of his discretion in all the relevant circumstances.
I note that there was, before the Arbitrator no argument with respect to the need to test the Respondent as to issues raised by sections 4, 9A and 11A of the 1987 Act. Leaving aside the question as to whether the Appellant may now rely upon such an argument in support of this appeal I conclude that such argument is without merit. It is suggested that there is a relevant “divergence in the documentary evidence relevant to legal issues …”. This argument has not been developed with precise argument illustrating suggested “divergence” and it is my view that the state of the evidence as it stood before the Arbitrator was such as to permit a fair and reasonable determination of questions of fact which may be relevant to questions of law raised with respect to the aforementioned sections of the 1987 Act.
The Appellant was unsuccessful before the Arbitrator in seeking leave to adduce oral evidence at the hearing of Mr Gary Martin. The transcript records submissions dealing with such application between pages 16 and 21. Following submissions with respect to the application by Counsel for the Appellant the Arbitrator concluded:
“ ARBITRATOR: It seems to me that requires the
40 consideration of essentially two matters. One is the
question of prejudice. The other is the question of
explanation for the failure to provide the statement.The matters that have been put to me as the matters to be
45 covered by Mr Martin seem to largely go to a question of
his conclusions or observations in respect of a medical
conclusion. They are matters which have been touched on
to some degree in the statements already there that have
been tendered. As I understand it, to call evidence that50 takes that a bit further.
It doesn’t seem to me that that additional evidence can
be described as central to the respondent’s case, though
obviously it’s evidence that the respondent would like to
55 have to further advance its case, but it doesn’t seem to
me to go to an area that is of such importance to the
matter that people would say that the denial itself would
cause an injustice to the respondent.I have to take into account the circumstances of why
there isn’t a statement. It’s been submitted to me that
the need for the statement arises from the history and
5 other matters in the report of Dr Pusic of 7 July 2005.
That was a report that was not filed and served with the
original application, and it does – it normally requires
some consideration in terms of material brought in reply
to the proper balance. Whether in this particular case -10 the report was served on 7 July. On 25 July, the matter
was previously listed and was adjourned because of the
non-availability of the applicant and because she was on
medication at the time. Clearly, by that time the
respondent should have been fully apprised of the case it15 was going to meet and it would have turned its mind to
the case [inaudible].As I recall the matter, I hadn’t been informed to the
contrary. Mr Martin, in fact, was present here at 1
20 Oxford Street on 25 July 2005, and one would infer that
it would have been a fairly simple matter to have spoken
to Mr Martin and obtained a further statement from him at
that time, particularly as the matter adjourned, and
obviously the respondent would have had the free time25 that would otherwise have been taken up in a hearing, and
Mr Martin was here for a hearing. No explanation has been
proffered as to why a statement wasn’t taken at that
time. Clearly, it could have been taken at that time. It
would have been available to the parties four weeks ago.
30
It seems to me that when one puts those matters together,
the failure to have a statement that can comply with
rule 66 or give a proper basis for compliance with the
normal procedure under the rules really falls at the35 respondent’s own doorstep, and, truly, it seems to me
that the case has not been made out for further oral
evidence from Mr Martin.”
(Transcript page 21 (line 39) to page 22 (line 37)).
The Appellant submits that the Arbitrator was in error in refusing leave to call Mr Martin to give oral evidence. In support of that ground the Appellant submits that:
“… the Arbitrator ignored the fact that Mr Martin was a relevant witness to the events at work after the May 2003 [sic] involving the respondent when she was suffering from dysphonia which she subsequently alleged in the Claim Form dated 22 December 2003 that lack of support from her employer caused a form of dysphonia – hysteria “as advised by medical professional”.”
It is unclear as to precisely what principle in law is relied upon by the Appellant in making the abovementioned submission. It seems that the Appellant’s argument goes to a suggested failure on the part of the Arbitrator to address evidence relevant to the application for leave. An examination of the transcript of proceedings leads me to conclude that, having regard not only to the reasons expressed by the Arbitrator as noted above but having regard to the debate between Counsel and the Arbitrator with respect to the application as recorded, all matters raised in support of the Appellant’s application had been fairly and properly dealt with by the Arbitrator. The Arbitrator properly identified the two relevant issues namely the question of “prejudice” and the question of “explanation for failure to provide statement”. I conclude that the Arbitrator’s decision to refuse the Appellant’s application for leave to call Mr Martin to give oral evidence was a proper exercise of his discretion.
The Appellant in paragraph 4(d) of its Statement of Grounds for Appeal asserts that the Arbitrator erred with respect to his factual finding concerning the rejection of the “diagnosis” as expressed by Dr Rundle. It is submitted that the factual conclusions expressed by the Arbitrator at paragraph 27 of his Reasons were “inadequately articulated” and reliance is placed upon the judgment of Haydon JA (as he then was) in Makita (Australia) Pty Limited v Sprowles (2000-2001) 52 NSWLR 705 (‘Makita’). Reading the “ground” as expressed in paragraph 4(d) together with the submission appearing in paragraph 16 of the Appellant’s Outline of Submissions implies that the Appellant is asserting error on the part of the Arbitrator in failing to provide any or any adequate reasons for his rejection of the “diagnosis” as expressed by Dr Rundle.
There is nothing stated by Haydon JA in the course of his judgment in Makita that in any way detracts from the force and validity of the views expressed by Meagher JA in Beale v GIO of NSW (1997) 48 NSWLA 430 at 443 with respect to the requirement to state reasons. His Honour there stated:
“Reasons need not necessarily be lengthy or elaborate” but “relate to the function to be served by the giving of reasons.”
When needing to refer to relevant evidence:
“There is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered.”
Whilst the “ground” makes reference to the term “diagnosis” it is plain that the Appellant’s complaint with respect to the Arbitrator’s findings relate to his rejection of Dr Rundle’s opinion as to the cause of the Respondent’s condition which he diagnosed as being “dysphonia”. Dr Rundle’s evidence indicates that his view, based on the history taken by him and recorded in his notes, was that her “vocal problem” was “mainly due to overuse and probable misuse of her voice”. The Arbitrator concluded as a matter of fact that the Respondent’s experience of the events at work were the cause of her psychological injury and further that her loss of voice was a consequence of the psychological injury. In reaching his conclusion as to “causation” of the condition of dysphonia the Arbitrator has made reference to the totality of the evidence and (at paragraph 27 of his Reasons) has made it clear that he preferred to accept the views of Ms Peters and Dr Zolfaghari given that Dr Rundle did not have the advantage of the subsequent observations conducted by those last mentioned Practitioners. The Arbitrator proceeded to state:
“Those observations make it clear that Dr Rundle’s hypothesis was not correct.”
Whilst the Arbitrator’s Statement of Reasons with respect to this issue of causation is brief it is my view that he has sufficiently revealed his process of reasoning as required by law. The Arbitrator’s approach to Dr Rundle’s evidence was in my view appropriate and accords with the principles enunciated by the High Court in Ramsay v Watson (1961) 108 CLR 642 in particular what was stated at 645:
“That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves “Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?”.”
The Appellant at paragraph 4(e) of its Statement of Grounds for Appeal asserts “error by the Arbitrator for [sic] by reason of his finding that the Respondent suffered a loss of voice (“dysphonia”) secondary to or as consequence of a work related psychological injury”. Paragraph 17 of the Appellant’s Outline of Submissions which seeks to support that “ground” states:
“17.The Arbitrator’s reasons for rejecting the opinion of Dr Brown at paragraph 19 that the Respondent’s psychological condition was due to non work related stressors are inadequate in that the only reason proffered is a bland assertion that ‘it is clear that the stress is reactive to events at work’.”
It must be noted immediately that the submission contained in paragraph 17 quoted above misstates the evidence of Dr Brown. That Practitioner under the heading of ‘Diagnosis’ stated:
“In my opinion Ms Rydzewski has developed an Adjustment Disorder whose symptoms include anxiety about facing the situation at work and her manager. She has also developed dysphonia as the result of psychological factors and so has a Conversion Disorder.”
Dr Brown proceeded to consider, and rejected, the possibility that the “physical deficit” (that is the dysphonia) was being malingered. Dr Brown proceeded to opine that the Adjustment Disorder and Conversion Disorder:
“Are the result of her perception of the stress she is under at work. The conversion symptom also serves the purpose of making her unable to return to work or to address the problem at work until the problem is solved.”
At page 12 of his report Dr Brown left open for determination the question as to whether her stress is due to her work or of her own making. This approach by Dr Brown, as an expert medical witness, conforms with the principles with respect to expert evidence, as enunciated by Haydon JA in Makita.
The Arbitrator in his Reasons has addressed the totality of the evidence and has concluded (at para 27) that the Respondent suffered a psychological injury as a result of events at work and further that the loss of voice was a consequence of the psychological injury. As I have stated with respect to the earlier challenge to a finding of fact by the Arbitrator I am of the view that he has sufficiently revealed his process of reasoning as required by law.
The Appellant at paragraph 4(f) of the Statement of Grounds for Appeal asserts that the Arbitrator erred in law in holding that the Respondent suffered a psychological injury within the meaning of section 4 of the 1987 Act to which employment by the Appellant was a substantial contributing factor within the meaning of section 9A of the 1987 Act. This ground is supported by submission numbered 18 of the Appellant’s Outline of Submissions. That submission comprises several arguments with respect to the ground and they are dealt with hereunder.
It is firstly asserted that the evidence adduced by the Respondent with respect to the issue of “injury” (section 4 of the 1987 Act) and “substantial contributing factor” (section 9A of the 1987 Act) was not sufficient to discharge the onus of proof which was upon the Respondent. It was asserted that the Arbitrator’s conclusion of fact with respect to those issues was not “open in the absence of corroborative contemporaneous evidence of any injury beyond dysphonia until more than seven months after the precipitating events …”.
There was before the Arbitrator both lay and expert medical evidence sufficient, in my view, to ground each of the findings of fact made by the Arbitrator in the course of his Reasons. I have earlier noted the substantial correspondence between the versions of workplace events between the evidence of the Respondent and that of Mr Martin. It is plain from the report of Ms Gilbert (Consultant Psychologist) dated 8 August 2003 referred to above that the Respondent was undergoing counselling services in respect to the alleged psychological injury as early as 5 August 2003.
It is further asserted in paragraph 18 that the Arbitrator erred in law in that he “wrongly determined the relative weight to be given to the Respondent’s evidence of her own perception and applied the wrong legal test rendering it appropriate for a Presidential Member to interfere with the determination; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Liang’)…”.
The Arbitrator in paragraph 25 of his Reasons made clear, in my opinion, that his conclusions of fact as to “injury” were founded upon all of the evidence including the Respondent’s evidence that she perceived that she was not supported by management. It was open to the Arbitrator to accept that evidence together with the balance of the evidence in support of her contention of injury in the course of her employment. The requirements of proof with respect to matters involving alleged psychological injury has recently been the subject of determination by Roche ADP in Lee v Department of Education and Training [2006] NSWWCCPD 179. Relevant authority and discussion of principle appears at paragraphs 29 to 35 of the Commission’s determination. I respectfully agree with that summary. To establish “injury” within the meaning of the 1987 Act a Claimant must establish on the evidence as stated by Neilson J in Kirby v Trustees of the Society of St Vincent de Paul (NSW), NSWCC 11 April 1997 unreported:
“… that the nervous system was so affected that a physiological effect was induced, not a mere emotional impulse. …”
In the present case there was abundant evidence of psychiatric illness and associated dysphonia to permit the conclusions as reached by the Arbitrator.
I am not satisfied that any “wrong legal test” was applied by the Arbitrator as asserted in the Appellant’s submission. The decision of Liang includes a careful examination by the High Court of Australia of the principles relevant to a determination by a Delegate as to “satisfaction” as to refugee status in the context of the Migration Act 1958 (Cth). In my view nothing stated by the Members of the High Court in that last mentioned judgment raises any doubt as to the correctness of the Arbitrator’s approach to the matters for determination which were before him in the present matter.
It is also asserted in the submission contained in paragraph 18 aforesaid that by reason of the suggested application of a “wrong test” the Arbitrator’s reasonings were “inadequate”, that a different decision would have been made had the correct test been applied and that, therefore, the Arbitrator’s decision should be “overturned”. Given my conclusion as to the correctness of the reasoning process of the Arbitrator as stated above there can be no substance to this argument and it is rejected.
The Appellant at paragraph 4(h) of its Statement of Grounds for Appeal asserts that the Arbitrator erred in law:
“… by reason of failure to properly exercise his statutory discretion to fairly and lawfully determine the reasonableness of the Appellant’s section 11A defence by applying the criterion of an objective test rather than a subjective test of the Respondent’s own perception of unreasonable treatment.”
The argument in support of this “ground” appears at paragraph 19 of the Appellant’s Outline of Submissions. That argument misconceives the findings of the Arbitrator which appear at paragraph 29 of his Reasons. It is asserted by the Appellant that the Arbitrator held that the Appellant’s actions were “not reasonable within the scope of section 11A”. That is not the case. What was found by the Arbitrator was that he was “not satisfied that the injury is predominantly caused by reasonable action with respect to discipline or performance appraisal …”. That finding does not address the question of “reasonableness” rather it is a finding that section 11A of the 1987 Act does not, on the facts as found, have application giving rise to a defence available to the Appellant.
At paragraph 28 of his Reasons the Arbitrator observed that the Appellant’s reliance upon section 11A of the 1987 Act was “fairly novel” given that the Respondent was not subject to action in respect of discipline, rather the disciplinary action was directed to the Respondent’s two fellow employees. The Arbitrator noted that the Appellant had cited no authority to support the argument that section 11A of the 1987 Act operates to raise a defence in the context of the relevant facts. Whilst the Arbitrator made no decision on that point, nor was such decision necessary, he found:
“… I am not satisfied that the injury is predominantly caused by reasonable action with respect to discipline or performance appraisal even if that includes the discipline and appraisal of employees other than the applicant. The result is that section 11A does not operate to defeat the applicant’s claim.”
That conclusion was reached having regard to the Arbitrator’s earlier finding that the Respondent’s injury:
“is attributable to a number of events at work only some of which fall within the proposed scope of section 11A.”
Such a finding was open on the evidence and I am not persuaded that any error of law is revealed upon examination of the Arbitrator’s reasoning process.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 13 September 2005 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs of the appeal.
Kevin O’Grady
Acting Deputy President 14 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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