Department of Education & Training v Hayward
[2009] NSWWCCPD 65
•11 June 2009
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Department of Education & Training v Hayward [2009] NSWWCCPD 65
APPELLANT: Department of Education & Training
RESPONDENT: Christopher Hayward
INSURER:GIO General Ltd – Treasury Managed Fund
FILE NUMBER: A1-8803/08
ARBITRATOR: Ms J. Conley
DATE OF ARBITRATOR’S DECISION: 6 February 2009
DATE OF APPEAL DECISION: 11 June 2009
SUBJECT MATTER OF DECISION: Whether findings of fact supported by the evidence; substantial contributing factor; section 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:Determined on the papers
REPRESENTATION: Appellant: Turks Legal
Respondent: Federation Law Pty Ltd
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 6 February 2009, as amended on 12 March 2009, is confirmed.
The Appellant, the Department of Education & Training, is to pay the costs of the Respondent, Mr Hayward, in this appeal.
BACKGROUND
On 6 March 2009, the Department of Education & Training (‘the Department’) sought leave in the Workers Compensation Commission to bring an appeal against a decision of an Arbitrator dated 6 February 2009. The Respondent to the appeal is Christopher Hayward. The Department’s workers compensation insurer is GIO General Ltd – Treasury Managed Fund (‘GIO’). Mr Hayward’s solicitors filed a ‘Notice of Opposition to the Appeal’ on 21 April 2009.
Mr Hayward, who is aged 45, was employed by the Department as a music teacher at Evans River Community School, where he also acted as ‘year adviser’. He claims to have suffered a psychological injury, namely mixed anxiety and depression, arising out of the nature and conditions of his employment from 2000 to 12 June 2007. On 9 November 2007, Mr Hayward completed a claim for workers compensation, which GIO declined on 6 December 2007 on the ground that the injury did not arise out of the course of his employment or, alternatively, on the ground that his employment was not a substantial contributing factor to the injury.
On 4 November 2008, the Commission registered Mr Hayward’s ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation for the period 8 June 2007 to 28 January 2008, and for medical expenses. The Department lodged its ‘Reply’ 24 November 2008. On 9 December 2008, an Arbitrator conducted a teleconference with the parties. On 14 January 2009, conciliation having proved unsuccessful, the Arbitrator conducted a hearing. On 6 February 2009, the Commission issued the Arbitrator’s decision and, on 12 March 2009, an amended decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 12 March 2009, records the Arbitrator’s orders as follows:
“1. The Applicant sustained a psychological injury arising out of or in the course of his employment with the Respondent.
2. Employment was a substantial contributing factor to the psychological injury.
3. The Respondent is to pay the Applicant weekly compensation pursuant to section 36 of the Workers Compensation Act 1987 (the Act) at the rate of $1,388.54 per week from 8 June 2007 for the first 26 weeks.
4. Thereafter the Respondent is to pay the Applicant weekly compensation pursuant to section 37 at the rate of $624.40 per week until 28 January 2008.
5. The Respondent is to pay the Applicant’s reasonably necessary medical expenses pursuant to section 60 of the Act on production of accounts and/or receipts.
6. The Respondent is to pay the Applicant’s costs as agreed or assessed. The matter is declared complex and both the Applicant and the Respondent are to have a 15% uplift on costs.”
In the Statement of Reasons (‘Reasons’) for her decision, the Arbitrator noted the issue of incapacity was not in dispute, having been conceded by the Department. She found Mr Hayward to have a psychiatric diagnosis of mixed anxiety and depression, from which he was suffering at the time he ceased employment in June 2007. On the basis of the evidence before her, the Arbitrator found that it was part of Mr Hayward’s role as a teacher and year adviser to assist his students achieve academic success, and also to provide all students with a safe and nurturing environment. This included addressing the issue of bullying and harassment at the school.
The Arbitrator found Mr Hayward was “very committed to his work and was held in high regard amongst his peers” (at [39]). While he regularly raised the issue of bullying and harassment at meetings, the issue was not resolved. In May 2007, Mr Hayward’s daughter, who was a student at the school, withdrew from the school with depression as a result of bullying. Mr Hayward stated that he was required to teach one of the students responsible for his daughter’s bullying and was in daily contact with students when on playground duty. The Arbitrator said Mr Hayward “states that he could not maintain his teaching responsibilities to a satisfactory level, which created feelings of guilt because he had always prided himself on his high standards and results as a teacher” (at [40]).
The Arbitrator stated, at [41]:
“Having regard to the evidence I find that the Applicant’s psychological injury arose out of or in the course of his employment due to the ‘nature and conditions’ of his employment as alleged. I am satisfied that the micro-traumata caused by the nature and conditions of the Applicant’s employment led to the onset of his psychological condition. The Applicant continued to deal with the issue of bullying over the years and the issue was never resolved. A student at the school (his daughter) withdrew with depression and suicidal thoughts because of bullying. He was required in his role which included the provision of both support and discipline in a safe environment for those same students who bullied his daughter a fellow student of the bullies ...”
The Arbitrator found that Mr Hayward’s “tasks and conditions of employment were a contributing factor to the injury, which arose as a consequence of a long-term inability to remedy the problem of bullying amongst the female students at the school” (at [48]). She did not accept it was more likely than not that Mr Hayward would have sustained the psychological injury had he not worked for the Department. She did not accept that the fact he had not sought treatment before the onset of the condition was of any significance, and there was no evidence that his lifestyle and activities outside the workplace were relevant to the injury.
The Arbitrator stated, at [58]:
“There is no doubt that the Applicant’s daughter’s condition was a significant event in his life and was a contributing factor to the onset of his psychological condition. Despite this, I find that employment was a substantial contributing factor to the onset of his psychological condition. It was the Applicant’s employment which placed him in the position of being professionally responsible for all students in his care, both bullied and bullies. It was his role as a teacher, Year Adviser and member of the Welfare Committee that placed upon him the burden of remedying the issue of bullying in his professional capacity in a professional manner. The evidence indicates that this was not achieved despite continued efforts on the part of the Applicant. It was this same role which placed him in the very difficult position of continuing to teach and nurture the students who bullied a fellow student, his daughter. I therefore find on the evidence that this was a substantial contributing factor to the psychological injury.”
ISSUES IN DISPUTE
The Department contends the Arbitrator: (1) erred in making findings in the absence of evidence, (2) misunderstood or misapplied the medical evidence, (3) considered irrelevant matters, and (4) misunderstood or misapplied the test pursuant to section 9A and section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’). The parties’ submissions on these issues are discussed below.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the parties that the appeal can be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Neither party sought to adduce fresh evidence.
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 appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
With regard to section 352(2), the requirement that the Commission is not to grant leave to appeal unless the amount of compensation at issue in the appeal is at least $5,000 and at least 20% of the amount awarded in the decision appealed against, I am satisfied that the amount of compensation at issue in the appeal exceeds $5,000 and more than 20% of the amount awarded in the decision appealed against. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
Ground (1), the Arbitrator erred in making findings in the absence of evidence, and Ground (2), misunderstood or misapplied the medical evidence
With regard to the first two grounds of appeal, the Department contends that there is no evidence of Mr Hayward displaying any symptoms of psychological injury or of his seeking treatment for such symptoms from the year 2000 until he ceased employment in 2007. There is no evidence that the injury was by way of “micro-traumata” (at [41] of Reasons, see above). There is a complete absence of any history of injury arising in that way and, by so finding, the Arbitrator made an error of law.
The Department also refers to [55] of the Reasons, where the Arbitrator states: “The nature of this particular injury is that he did not appear to need treatment prior to that time. The evidence indicates that even in June 2007 when he stopped work he was somewhat reluctant to seek treatment.” The Department contends that the Arbitrator erred by misapplying the medical evidence to justify her finding and either misunderstanding the evidence or erroneously analysing it. The Arbitrator failed to base her findings on logical and probative evidence.
Mr Hayward’s solicitors respond that Mr Hayward’s evidence is that even though he did not seek any medical treatment until June 2007, he had been concerned about the issue of girl bullying and harassment since the opening of the school in 2000 and had raised his concerns on many occasions. This evidence was supported by that of three lay witnesses: Connie D’Anna, the School’s Welfare Co-ordinator, Jenny Hart, the Supervising Head Teacher, and Anne Shelley, the Student Adviser for the girls at the school. The first doctor Mr Hayward consulted about his condition was his general practitioner, Dr Paul Watterston, who recorded that Mr Hayward was extremely anxious and depressed about his situation at work. Dr Watterston commented that Mr Hayward found it extremely difficult to attend his workplace and developed a depressive illness due to the situation.
Mr Hayward’s solicitors state that Kristine Keevers, Consulting Psychologist from Pathways Counselling, saw Mr Hayward at the Department’s request. She noted that Mr Hayward’s claim that the school failed to respond to his requests for action about bullying and that they failed his daughter, seemed to be the core of his distress. She also commented that his having to face the students who bullied his daughter exacerbated the situation.
Mr Hayward’s solicitors submit there was sufficient evidence before the Arbitrator to find as she did.
Ground (3), the Arbitrator considered irrelevant matters
The Department submits the Arbitrator took into account irrelevant considerations in finding Mr Hayward was committed to his work and held in high regard amongst his peers as there was no issue as to his credit. The fact that he was involved in co-writing the school’s harassment policy, or the presence of bullying or harassment at the school, were also irrelevant considerations, because the central issue was whether the injury arose out of his employment and whether that employment was a substantial contributing factor to the injury. The Arbitrator relied on these irrelevant considerations in supporting her decision that the injury was due to the nature and conditions of employment.
Mr Hayward’s solicitors respond that contrary to the Department’s submissions, the fact that Mr Hayward was a year adviser in addition to his teaching role was very relevant, and the Arbitrator’s findings in this respect are supported by the evidence. Mr Hayward’s evidence was supported by that of the three lay witnesses already referred to and not contradicted by any evidence from the Department.
Ground (4), the Arbitrator misunderstood or misapplied the test pursuant to s 9A and s 4 of the 1987 Act
The Department states the Arbitrator failed to explain how she came to the conclusion there were “very significant differences” between being a parent of a student at the school and being a teacher/year adviser. The evidence did not suggest that, over the years, the failure to address the systemic bullying problem gave rise to the injury. Rather, the onset of Mr Hayward’s daughter’s psychological injury was the direct cause of Mr Hayward’s injury. The Arbitrator’s failure to explain why Mr Hayward did not develop the psychological injury over the years that he had to deal with bullying, but did develop this condition at the time that his daughter complained of a psychological injury. This displays the error in the Arbitrator’s reasoning and her failure to properly consider section 9A of the 1987 Act. The Arbitrator does not explain what she meant by ‘substantial contributing factor’ or how she came to the conclusion that Mr Hayward’s employment was a substantial contributing factor. The Arbitrator erred by not properly addressing the issues raised in s 9A(3) and Mr Hayward needing to prove his employment was a substantial contributing factor to the injury.
Mr Hayward’s solicitors respond that issues of causation are to be approached with common sense. The Arbitrator correctly identified those aspects of Mr Hayward’s employment that resulted in the injury, namely his professional responsibility as a teacher/year adviser to try and address the systemic problem of bullying and the necessity for him to teach, discipline and provide moral behaviour for students responsible for bullying a fellow student, his daughter.
Mr Hayward’s solicitors note that for a worker to be entitled to compensation, section 9A requires that employment be a contributing factor to the injury and not the substantial contributing factor to the injury. There may be more than one substantial contributing factor. Mr Hayward accepts that his daughter’s condition contributed to his injury. However, his solicitors submit that employment was also a substantial contributing factor, and that, in so finding, the Arbitrator was not in error.
DISCUSSION
Pursuant to s 352(5) of the 1998 Act, the role of a Presidential Member on appeal is to conduct a review of the decision appealed against. At issue, is whether the Arbitrator erred in making findings unsupported by logical and probative evidence, took into account irrelevant considerations, and erred in her application of section 9A of the 1987 Act.
The word ‘injury’ is defined in section 4 of the 1987 Act as meaning “personal injury arising out of or in the course of employment”. There is no dispute that Mr Hayward suffered an injury in June 2007. At issue, first, is whether that injury arose out of or in the course of his employment.
With regard to grounds (1) and (2), the Department contends that the Arbitrator erred by finding that the injury arose out of or in the course of Mr Hayward’s employment, because there was no evidence to support a finding that he displayed any symptoms of a psychological injury between 2000 and the time he ceased employment in June 2007. Moreover, in particular, there is no evidence of micro-traumata caused by his employment, to which the Arbitrator referred in [41] of Reasons.
A review of the evidence confirms that there is no evidence of Mr Hayward suffering any psychological injury until he consulted his general practitioner, Dr Watterston, on 19 June 2007. According to Dr Watterston’s report of 14 November 2007, on that first occasion, Mr Hayward stated that for years “he had witnessed and reported girls being regularly bullied”, and was angry towards the bullies and about the school’s “inactivity in response. He was obviously frustrated and at times depressed”. In my view, this does not support a finding of there being micro-traumata or of Mr Hayward suffering a psychological condition at any time before June 2007.
But in terms of what the Arbitrator said in [41] of her Reasons, quoted above, there is evidence of Mr Hayward, in his role of a teacher and year adviser, trying to deal with bullying over the period 2000 to 2007. (This comprises Mr Hayward’s answers to his solicitors’ questionnaire signed on 7 April 2008, and statements from Connie D’Anna, Jenny Hart and Anne Shelley appended to his ‘Application to Resolve a Dispute’.) I also note the comment by Kristine Keevers, Consulting Psychologist, in a report to GIO dated 15 November 2007, that the school had failed to respond to Mr Hayward’s request for action to be taken about bullying, and that “having to face the students who bullied his daughter has exacerbated the situation”. This was the employment background that, in my view, the Arbitrator could reasonably find “led to the onset of his psychological condition”, and justified a finding that his injury arose out of his employment, thus meeting the definition of ‘injury’ in section 4 of the 1987 Act. In my view, there was a sufficient causal link: see, for example, Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’), at 463; Parmalat Australia Ltd v Cheadle [2008] NSWWCCPD 39, at [31].
However, it appears it was his daughter’s suffering severe depression as a result of the bullying (diagnosed on 29 May 2007) that proved the trigger to Mr Hayward’s condition. I have been unable to identify any evidence to support the Arbitrator’s finding that even in June 2007 when Mr Hayward stopped work, he was reluctant to seek treatment.
In summary, two of the Arbitrator’s findings – about micro-traumata and Mr Hayward’s reluctance to seek treatment - were not supported by the evidence and to that extent the Arbitrator made errors of law. The effect of this on the outcome of the appeal is discussed below.
With regard to ground (3), that the Arbitrator took into account irrelevant considerations, I do not accept that the Arbitrator’s findings about Mr Hayward being committed to his work, being held in high regard among his peers and being involved in co-writing the school’s harassment policy are irrelevant considerations. In my view, these are relevant background matters in relation to bullying and harassment being matters in which he was involved in his roles as a teacher and year adviser and, therefore, in the course of his employment. I therefore reject this third ground of appeal.
With regard to ground (4), that the Arbitrator misunderstood or misapplied the test pursuant to sections 9A and 4 of the 1987 Act, the Department refers to [53] of her Reasons and her comment about the significant differences between being simply a parent, and being a parent and teacher/year adviser at the same school. The Department comments that the Arbitrator has not explained how she came to this conclusion. In my view, however, this is a matter where the Arbitrator was entitled to take ‘judicial notice’, being a matter of common knowledge among reasonably informed members of the community and not a matter that would reasonably be disputed.
However, this does not dispose of the Department’s concerns over the Arbitrator’s findings on the issue of causation. The Department contends the onset of Mr Hayward’s daughter’s psychological injury was the direct cause of his injury, and notes the Arbitrator’s failure to explain why Mr Hayward did not develop the psychological injury over the years that he had to deal with bullying, but did develop this condition at the time that his daughter complained of a psychological injury. At [58], the Arbitrator referred to finding “that this was a substantial contributing factor to the psychological injury”, referring to Mr Hayward’s role as a teacher/year adviser. The Department states that Mr Hayward has not adequately explained how it came to be that it was not until he consulted Dr Watterston on 19 June 2007, that he displayed any symptoms of a psychological condition. The Department submits that the Arbitrator erred by not properly addressing the issues raised in s 9A(3).
Subsections 9A(1) and (3) state relevantly:
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) ...
Mr Hayward’s solicitors respond that issues of causation are to be approached with common sense (Kooragang). The Arbitrator correctly identified those aspects of Mr Hayward’s employment that resulted in the injury. The solicitors note that for a worker to be entitled to compensation, section 9A only requires that employment be a contributing factor to the injury.
I note that at [58], the Arbitrator acknowledged that Mr Hayward’s daughter’s condition “was a significant event in his life and was a contributing factor to the onset of the Applicant’s psychological condition”. Nevertheless, she found it was his employment as a teacher/year adviser that placed him in the position of having to deal with bullies and bullying. It was this role that she found, on the evidence, was a substantial contributing factor to the psychological injury.
With regard to s 9A(1), there is no dispute that employment only needs to be a substantial contributing factor and not the sole substantial contributing factor. In this context, the Courts have held that the word ‘substantial’ is to be accorded its ordinary meaning of real or of substance as opposed to minor: see, for example, Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153.
I am not satisfied that the Arbitrator ignored s 9A(3). She clearly addressed the issue of whether Mr Hayward’s employment was a substantial contributing factor to the injury in the context of there being another contributing factor, namely his daughter’s condition. The Arbitrator reached her finding having discussed how the issue of bullying was a live one in Mr Hayward’s role as a teacher/year adviser at his school, in the context of bullying having been a problem in the school since 2000. In my view, there was sufficient evidence before the Arbitrator for her to find that the contribution to his injury made by his employment was of substance as opposed to being minor. Thus, I am not satisfied that the Department has made out this fourth ground of appeal.
Conclusion
In conclusion, in my view the Arbitrator made errors of law in relation to two findings of fact in so far as those findings were not supported by the evidence: (1) a finding that Mr Hayward suffering micro-traumata caused by the nature of his employment between 2000 and June 2007, which led to the onset of his psychological condition, or of Mr Hayward suffering a psychological condition at any time before June 2007; (2) a finding that even in June 2007 when Mr Hayward stopped work, he was reluctant to seek treatment. The question is what effect these findings had on the Arbitrator’s ultimate decision and whether her decision should be set aside as a result.
As I have stated above, there was evidence upon which the Arbitrator could reasonably find that Mr Hayward’s psychological condition arose out of his employment, thereby meeting the definition of ‘injury’ in section 4 of the 1987 Act. However, the actual trigger to the onset of his psychological condition was his daughter’s suffering severe depression as a result of the bullying. While in my view, his daughter’s condition was undoubtedly a substantial contributing factor to Mr Hayward’s injury, nevertheless, there was there was sufficient evidence before the Arbitrator for her to find that the contribution to his injury made by his employment was of substance as opposed to being minor.
Thus, despite the errors of law made by the Arbitrator in her decision, I am not satisfied those errors should affect the outcome in this matter that the Department was liable in respect of his Mr Hayward’s injury. The decision must therefore be affirmed.
DECISION
The decision of the Arbitrator made on 6 February 2009, as amended on 12 March 2009, is confirmed.
COSTS
The Appellant, the Department of Education & Training, is to pay the costs of the Respondent, Mr Hayward, in this appeal.
Robin Handley
Acting Deputy President
11 June 2009
I MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
3
0