Doci v Qantas Airways Limited - [2009] NSWWCCPD 147

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Doci v Qantas Airways Limited [2009] NSWWCCPD 147
APPELLANT:		Elfa Doci
RESPONDENT:		Qantas Airways Limited
INSURER:		Self Insured
FILE NUMBER:		A1-2335/09
ARBITRATOR:	Ms A Britton
DATE OF ARBITRATOR’S DECISION:		14 July 2009
DATE OF APPEAL DECISION:		19 November 2009
SUBJECT MATTER OF DECISION:		Physical and psychological injuries, weight of evidence
PRESIDENTIAL MEMBER:		President, His Hon. Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Maurice Blackburn Lawyers
Respondent:		Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		1. Paragraphs (1) and (3) of the Certificate of Determination dated 14 July 2009 are confirmed. 2. Paragraph (2) of the Certificate of Determination dated 14 July 2009 is revoked and the matter is remitted to another Arbitrator for determination of the level and extent of any incapacity as a result of both the physical and psychological injuries in accordance with the reasons in this decision. 3. The Respondent to pay the Appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 7 August 2009 the worker, Mrs Doci, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 14 July 2009.

The Respondent to the Appeal is Qantas Airways Limited (‘Qantas’).

Mrs Doci is employed by Qantas as a cabin cleaner. She commenced employment in 1999.

Mrs Doci alleged that she suffered physical injuries as a consequence of having been involved in three motor vehicle accidents during the course of journeys to work. They occurred on 29 November 2005, 12 March 2007 and 14 May 2008. In addition, she alleges injuries sustained during the course of her employment. On 28 September 2002 she injured her back while attempting to pull free a newspaper, which had become wedged between the seats of an aircraft. In January 2008 while cleaning an aircraft cabin, Mrs Doci’s foot became caught in a blanket causing her to trip and fall resulting in an injury to her left foot and back.

In addition to the physical injuries, Mrs Doci alleges she sustained a psychological injury as a result of intimidation, unfair criticism, abuse, unwelcome sexual advances and inappropriate sexual conduct.

In the ‘Application to Resolve a Dispute’ (‘the Application’) filed on 4 March 2009, the worker claimed weekly compensation from 7 November 2008 to date and continuing, and lump sum compensation in respect of the cervical spine, lumbar spine and the left lower extremity.

In a Reply filed on 16 April 2009, Qantas pleaded 14 separate bases for refusing the claim, which in essence disputed that the worker had received an injury arising out of or in the course of her employment, alternatively she was not incapacitated by reason of any such injury. Further, or in the alternative, any incapacity found was due to constitutional and pre-existing conditions. In respect of the physical and psychological injuries, Qantas claimed that the worker’s employment was not a substantial contributing factor to the injuries. In respect of the psychological injuries it relied on section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’).

The Commission listed the matter for conciliation and arbitration on 19 June 2009. The parties reached agreement in respect of the physical injury. However, the matter proceeded to hearing on the issue of psychological injury and incapacity resulting from both the physical and psychological injuries. No oral evidence was called but both parties made oral submissions.

In a reserved decision delivered on 14 July 2009, the Arbitrator made orders by consent, that the parties agreed to injuries to the lumbar spine, cervical spine and left lower extremity sustained on various dates and referred the matter to the Registrar for referral of the worker to an Approved Medical Specialist (‘AMS’) for assessment of the degree of whole person impairment (‘WPI’) of the cervical spine, lumbar spine and left lower extremity.

In respect of the alleged psychological injuries, though the Arbitrator was satisfied that Mrs Doci suffered from a psychological condition, she was not satisfied that employment was a substantial contributing factor to that condition.

She made an award for weekly compensation for the period 20 February 2009 to 2 April 2009, but declined to award continuing compensation, as she was not satisfied that Mrs Doci suffered any incapacity beyond that period as a result of her physical injuries.

By an appeal filed on 7 August 2009, Mrs Doci seeks leave to appeal the Arbitrator’s determination in respect of her failure to make findings with respect to incapacity from the physical injuries and her findings in respect of the psychological injury.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 14 July 2009 records the Arbitrator’s orders as follows:

“The Commission determines:
1. By consent the Registrar is requested to refer the Applicant to an Approved Medical Specialist under s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of the degree of impairment of the: Cervical Spine in respect of injuries in November 2005 and March 2007; Lumbar Spine in respect of injuries on 28 September 2002, November 2005, March 2007, 22 January 2008 and 14 May 2008; and Left Lower Extremity in respect of injury on 14 May 2008.
2. The Respondent to pay the Applicant weekly compensation under s 40 of the Workers Compensation Act 1987, $504.94 for the period, 20 February 2009 to 2 April 2009.
3. The Respondent to pay the Applicant’s costs as agreed or assessed. Pursuant to Schedule 6, Part B, Table 4, Item 4 of the Workers Compensation Regulation 2003, I certify that this matter is complex, warranting uplift in costs of 25% for both parties.”

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 that are before me, and the submissions by the parties that the appeal can proceed to 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.

LEAVE TO APPEAL

Monetary Threshold

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

There is no issue that the quantum at issue on appeal meets the thresholds in section 352(2) of the 1998 Act.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

FRESH EVIDENCE

‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:

“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
·   it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
·   the evidence is credible;
·   there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
·   it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”

Practice Direction No.6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:

·   a schedule of the fresh or additional evidence;
·   a copy of the fresh or additional evidence;
·   a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·   submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.

Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.

Mrs Doci seeks to rely upon a further report of Dr Anthony Dinnen dated 31 July 2009, and his handwritten notes of his examination of the worker. She also seeks to rely on a letter written to Dr Dinnen by her solicitors, Maurice Blackburn Lawyers, dated 21 July 2009.

The letter from Maurice Blackburn Lawyers of 21 July 2009 provided Dr Dinnen with a copy of the decision of Arbitrator Britton. The letter drew the doctor’s attention to the suggestion that the Arbitrator found that Dr Dinnen did not have an adequate history of the worker’s pre-injury condition, and sought to obtain from him copies of any written notes recorded by him during the course of his examination.

Submissions

Mrs Doci claims the purpose of the further report from Dr Dinnen is to clarify the history that was provided to the doctor during the course of his examination of her. She submits that in his further report of 31 July 2009, Dr Dinnen “provides an opinion that the history provided to the Commission is largely consistent with the history he had obtained and accordingly his opinion is not altered”. It is further submitted that Dr Dinnen was of the view that he “fully covers those matters” in respect of any pre-existing history and work-related history.

Apart from these brief observations, no other submissions are made, or authority given, to support the admission of this evidence at this late stage in the proceedings.

The application for the admission of fresh evidence is opposed by Qantas who submits that:

(a) Mrs Doci was well aware of the importance of providing an accurate history of non-work-related psychological issues to examining doctors and had chosen to withhold a frank history from the doctor, focusing instead on her various issues with the Respondent;
(b) Mrs Doci has not demonstrated that the new evidence was not available to her previously;

(c) it would be disingenuous for the Appellant to assert injustice in a failure to allow the new evidence when she is the person giving the history to the doctor, and

(d) in any event the new evidence merely demonstrates that the doctor’s notes accord with the contorted history given to him by the Appellant. The doctor has not been given the full history to consider nor had the chance to interview the Appellant further in respect of the material in the local doctor’s notes, confirmed as they were by contemporaneous reporting by the Appellant to her work colleagues (Ms Sanchez’s statement dated 3 June 2008 at [4], [7] and [10]; Ms Eigenstetter’s statement dated 12 June 2008 at [5] and [10]; Mr Cutuic’s statement dated 3 June 2008 at [13] and Mr El Ali’s statement dated 29 May 2008 at [8]).

Discussion and findings

The question of the introduction of fresh evidence on appeal was considered by the Court of Appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158, (2007) 4 DDCR 634 (‘Haider’) where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at page 160 that three conditions need to be met before “fresh evidence” can be admitted:

“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible”.

However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Heydon JA stated at [15]:

“…even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”

The Appellant has not made any attempt to satisfy the requirements of Practice Direction No. 6 or the three conditions referred to in Atkins. No reasons have been advanced as to why the additional evidence could not, with reasonable diligence, have been obtained prior to the proceedings before the Arbitrator. Dr Dinnen’s views of the Arbitrator’s determination and her interpretation of his evidence are irrelevant to the disposition of this appeal. No new evidence is advanced in Dr Dinnen’s further report of 31 July 2009. It is merely a commentary on his previous report and the outcome of the proceedings. The doctor’s handwritten notes are attached to the Application and to a large extent are illegible, but in any event, as Dr Dinnen concedes, it is doubtful that anything further would be gained by perusing the notes, as there is nothing in them that was not included in his earlier reports.

I am not persuaded that there is a high probability that there would be a different decision if this evidence were admitted on appeal. There is nothing additional in the report of 31 July 2009 that was not already in evidence and considered by the Arbitrator.

Even though I am not persuaded as to the matters discussed above, I am still required to consider whether it is just to admit the evidence in all the circumstances of this case. In order to ensure this Commission has an effective system for the timely resolution of disputes, it requires that the parties file and serve all evidence upon which they intend to rely at the outset of the proceedings (see Part 10, Rule 10.4 of the Workers Compensation Commission Rules 2006). It was within the Appellant’s power, indeed it was incumbent on her, to ensure that the medical evidence on which she relied was based on a full and accurate history of all matters relevant to the medical assessor’s opinion, whether they were related to employment or not.

I am not satisfied it is in the interests of justice to admit the fresh evidence on appeal as I am not satisfied that if admitted it would make any difference to the outcome.

The Appellant’s application to rely on the fresh evidence on appeal is refused.

ISSUES IN DISPUTE

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

a.    in her findings in respect of the alleged psychological injury including:
i.     her treatment of the evidence and in particular the finding that no weight could be attached to the report of Dr Dinnen;
ii.   the application of the principles in Makita (Aust) Pty Limited v Sproules [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) and Hevi Lift (PNG) Limited v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271(‘Hevi Lift’);

iii. finding that the Appellant “denied” that her husband had been abusive, an alcoholic and a gambler;

iv. finding that employment was not a substantial contributing factor to the psychological injury alleged, and

v. failure to make an award for weekly benefits in respect of the psychological injuries.
b. in her findings in respect of the physical injury and making only a closed period award in respect of incapacity resulting from the physical injuries.

EVIDENCE, SUBMISSIONS AND FINDINGS

Did Mrs Doci sustain a psychological injury to which employment was a substantial contributing factor?

Mrs Doci alleges she was subject to the following treatment during the course of her employment:

a. intimidation;
b. inappropriate sexual conduct;
c. uninvited sexual remarks;
d. humiliating remarks;
e. harassment;
f. unfair treatment;
g. abuse, and
h. victimisation.

Mrs Doci also alleges she was called a derogatory name in front of her colleagues on 7 May 2008.

Evidence

Before proceeding further it may be useful to identify the positions occupied by the witnesses:

a.   Mahmoud El-Ali       Fleet presentation resource allocator and supervisor
b.   Graham Olsen           Manager fleet presentation
c.   Samir Cutuic             Resource allocator
d.   Marie Sanchez          Resource forward planner
e.   Jennifer Eignstetter Registered nurse
f.    Barita Neal                Airline Service Operator/Leading hand
g.   Andrew Hubrechsen Manager
h.   Brent Steel                Supervisor
i.    Wayne Lows             Supervisor

Elfa Doci

Mrs Doci relied on the statement of evidence taken by an insurance investigator on 26 May 2008. She confirmed that she lived at Minchinbury with her son and two daughters. She has been employed by Qantas for 9 years. She has been “seconded” since January 2008 doing full-time work.

On 22 January 2008 the worker suffered an injury when she was cleaning an aircraft when she became caught in a blanket and fell onto an armrest and then onto the floor landing on her back. She attended the medical centre and while she was there she spoke to Mr Olsen and the manager Andrew Hubrechsen. She stated that Mr Olsen was concerned about how long she was likely to be off work. She complained that when she was taken to a medical centre for treatment, which was taking a considerable time, Mr Olsen was insensitive to her three children waiting at home, stating that the children were old enough to look after themselves. She further complained that Mr Olsen did not wait with her whilst she received treatment, and that she had to rely on a security officer at the Eastgardens centre, where she was receiving treatment to get her to a taxi.

On Friday 25 January 2008 Mrs Doci returned to work on light duties. On Tuesday, 29 January 2008 she attended the medical centre as she was feeling unwell and asked permission to leave work early. She was given permission to do so but was again requested by Mr Olsen to indicate how long she was likely to be off work so that her duties could be reallocated. The worker objected to this. She felt that she was being threatened. She became upset and called “Margaret” the union representative.

Accompanied by Margaret the worker attended upon her manager, Mr Hubrechsen. By coincidence Mr Olsen was also there. She complained that she had been threatened twice whilst she was in pain and object to it, stating she felt she wasn’t being treated like a human. Nothing ever came of that complaint.

On a date, which is unspecified, Mrs Doci attended her family doctor for a back condition. She stated she had a CT scan, which found two discs protruding. She initially returned on light duties but was concerned about being on light duties, feeling she was being intimidated, and she subsequently returned to normal duties.

At Qantas’ request the worker saw a doctor. The doctor’s name and the date of the consultation were not stated. Mrs Doci stated she was unable to wear safety shoes, as her foot had not healed (from the 22 January injury). The next morning, after returning to duties, Mr Olsen called for her to attend the office. She took the union delegate Margaret with her. Mr Olsen objected to this, stating it was a medical issue and should remain private. He said that he had received a letter from the “Qantas doctor” regarding the wearing of safety shoes, but was satisfied when he observed that Mrs Doci was wearing safety shoes, albeit against advice. Mrs Doci interpreted this as a threat stating “straight away another threat from him.”

On 1 May 2008 Mrs Doci attended the Airport Medical Centre and consulted Dr Keller (I infer for her back condition). Although offered time off work by the doctor, she was reluctant to take time off stating, “I was scared of what they would say.”

On 7 May 2008 Mrs Doci was late for work after having attended a chiropractor for the treatment of her back injury. When she arrived in the meal room she was about 11 minutes late for work. She saw the leading hand Barita Neal giggling and heard her say, “oh she’s just turned up.” Ms Neal told her that Mr El-Ali had been calling for her on the radio. When asked why she was laughing, Ms Neal was unable give an explanation.

Mrs Doci said that this was not the first time Mr El-Ali had enquired over the radio as to her whereabouts. It had happened once during the previous week, and once during the week before that. Mrs Doci stated she felt she was being harassed. She immediately approached Mr El-Ali and told him to “back off”. Whilst she was in Mr El-Ali’s office he made a phone call to his superior, Wayne Lows. Mr El-Ali told Mr Lows that Mrs Doci was complaining about his use of the radio concerning her whereabouts. Mrs Doci then spoke to Mr Lows who told her not to take it personally and asked her to fill in the “late form.” He also said that he would caution staff about laughing.

The worker then immediately went to the Complaints Officer, Graham Olsen, who was helping her to fill in the forms. She overheard Mr El-Ali say, “she’s a fucking mole coming in the office.” She said, “I heard that.” Mr Olsen and other staff looked at her. She became very upset, was shaking, and left the office.

Mrs Doci states that she was tearful and was shaking. She was unable to concentrate and reported to the medical centre. When she commenced to tell the nurse Jennifer Eigenstetter what happened she broke down. Ms Eigenstetter called her supervisor, Brent Steel, to come to the medical centre. Mrs Doci then stated she wanted to make a formal complaint regarding Mr El- Ali’s conduct.

The worker was invited to go to the meal room to rest. While she was there she spoke to the union delegates Joe Marsa and Lee Lola. Mrs Doci explained what had happened earlier, but also complained that she been overlooked on five occasions for a full-time position. Three of Mrs Doci’s superiors, Mr El-Ali, Mr Cutuic and Mr Hubrechsen, were required to submit assessments to management in reference to her application for full-time employment. Mr Cutuic had told the worker that Mr El-Ali had given her an unfavourable assessment, which was jeopardising her prospects of full-time employment.

Mrs Doci stated that between January 2008 and the making of her statement on 26 May 2008 she felt under pressure, threatened and scared.

On 14 May 2008 the worker was involved in a motor vehicle accident on her way to work. She states she had back and chest pain. On 15 May 2008 she consulted her local doctor, Dr Chau, and was prescribed anti-depressants and analgesic medication.

Mrs Doci stated “Apart from all of this I was okay with my health. Now I am suffering with my back. I had a work injury with my back in 2003 [sic-2002]. I was (sic) doing very well since.”

Complaint against Mr Cutuic regarding sexual misconduct

On 23 July 2008 the worker lodged a complaint against Mr Cutuic.

Mrs Doci concedes for the last two years she has had a reasonably close relationship with Mr Cutuic. From time to time they spoke about family matters. She began to receive text messages from him of a personal nature.

Around Christmas/New Year 2007 Mrs Doci alleged that Mr Cuturic made inappropriate gestures including touching her hair, asking to be kissed and stating that he felt aroused in her presence.

In February 2008 in the resource allocator’s office Mr Cutuic is alleged to have made a series of inappropriate remarks of a sexual nature. In April 2008, in reference to the worker’s application for full-time work, Mr Cutuic stated that Mr El-Ali might submit an adverse assessment of her because he disliked her.

Mrs Doci stated that she had delayed making the complaint, as she was now seeing a psychiatrist and she believed it would be of help to stand up for herself. She said that before getting psychiatric help she had been too scared to make a complaint. She felt that she had been victimised by Mr Cutuic and Mr El-Ali.

Mr Cutuic denied the allegations of sexual harassment or misconduct. Qantas undertook an investigation of the complaints. On 22 August 2008 Qantas wrote to Mrs Doci to inform her that, following its investigation of the complaints against Mr Cutuic, it had determined that the complaints were unsubstantiated and had dismissed them.

Complaint against Mr Olsen

The worker also alleges mistreatment at the hands of Mr Olsen. She felt intimidated by Mr Olsen when he immediately asked how long she intended to be off work after the 22 January 2008 injury because he told her he would consider offering her secondment, which she was due to start the next day, to someone else if she was likely to be incapacitated for an extended period.

The complaint was not lodged until 13 May 2008. Qantas found that Mr Olsen was seeking clarification as to the extent of the injuries to determine whether substitute workers would be required for some or all of the secondment period. Qantas accepted that this was for legitimate operational reasons and dismissed the complaint that the worker’s employment had been threatened.

Complaint against Mr El-Ali

Mrs Doci made a formal complaint to Qantas regarding Mr El-Ali’s conduct on 7 May 2008. The complaint was lodged on 13 May 2008. The details of the complaint were consistent with the worker’s evidence of the events of that day. In the complaint, Mrs Doci confirmed that Mr El-Ali had attempted to call her to explain the context in which his offensive remark was made. She refused to discuss the matter with him and switched the phone off.

The worker alleged that she felt intimidated, discriminated against, and victimised. She further stated she had been overlooked for positions for which she was well qualified.

Qantas conducted an investigation into the complaint. It found that Mr El-Ali had used the offensive language complained of on 7 May 2008, but accepted his explanation that the remark was not directed at the worker.

Qantas found that Mr El-Ali was properly discharging his responsibilities as the resource allocator when he made an enquiry over the radio as to the whereabouts of Mrs Doci. Noting that she had reported for work 17 minutes late (11 minutes according to the worker) it was found that it was reasonable for Mr El-Ali to query her whereabouts. Accordingly the allegation was not sustained and was dismissed.

Dr Dinnen

Dr Dinnen is a consultant psychiatrist. He prepared a report addressed to the worker’s solicitors dated 12 February 2009. He obtained a history that Mrs Doci had problems in the workplace where she was verbally insulted in front of her colleagues and humiliated. She also alleged sexual assault and that she had been intimidated.

She reported to Dr Dinnen the problems she was having with Mr Cutuic towards the end of 2007, stating that Mr Cutuic’s body language and behaviour was inappropriate. She described in detail the incident that occurred around Christmas/New Year 2008 when he talked about his fantasies and tried to kiss her.

She also reported that Mr Cutuic had told her that her application for full-time work would be prejudiced by Mr El-Ali giving an adverse assessment of her. She also told Dr Dinnen that she felt she was being pressured by the manager not to take too much time off work after being injured in January 2008 for fear of losing her job.

After the worker returned to work following the January 2008 injury, she was certified unfit to wear safety shoes. Notwithstanding the doctor’s advice she wore the safety shoes, but was called by the manager Graham Olsen, from the plane she was working on, to attend his office to discuss the safety shoes issue. She stated Mr Olsen was upset when she attended in the company of a union delegate. She became tearful and told Dr Dinnen that this was the third time he had threatened her about her job.

Mrs Doci also reported to Dr Dinnen the history of the incident, which occurred on 7 May 2009 stating that she felt humiliated when her manager had enquired as to her whereabouts over the radio.

In terms of her personal history, the worker provided details of her upbringing in Albania and her family background. After arriving in Australia, Mrs Doci commenced work in a nursing home from about 1992. She stated that the relationship with her husband became unsatisfactory. There were problems intermittently. They finally separated “when the trouble started at the airport”. She stated her husband works as a truck driver. She said of him, “now I can’t stand his face”.

She was aware of an insurance investigator who had interviewed one of her best friends. She said that the statements that her husband was abusive, an alcoholic and a gambler were “not really true,” further stating “they exaggerated”.

She stated her 17-year-old daughter finished her HSC and was waiting to go to college but there may be financial difficulties in paying for the further education. Her other daughter is in year 11 and her son is in year 8. Mrs Doci said that her 17-year-old daughter caused problems, stating, “her behaviour agitates me.” She asked her husband to help her cope with her daughter but he is unable to discipline her.

Dr Dinnen stated that the worker was focused at the examination on the sexual harassment and humiliation that she suffered in the workplace at the hands of two of the supervisors. She said that the injury to her ankle and back in January 2008 contributed to her difficulties. She returned to work in October 2008 on restricted duties.

Dr Dinnen noted:

“She reports significant domestic problems, present for some time, probably predating the work problems but apparently worsening in parallel with the increasing problems in the work place.”

He diagnosed the present condition as chronic adjustment disorder with depressed mood and added, “…the psychiatric treatment she has been receiving since July last year would suggest a more severe depressive illness is present than that which was apparent at interview.” He then added, “The differential diagnosis is that of major depressive disorder.”

Dr Dinnen then went on to conclude, “According to the patient’s account as described above it is more likely than not that her psychiatric condition was the result of workplace stressors. The motor vehicle accident is not considered to be a major contributor to the psychiatric disorder.” He considered that her employment was a substantial contributing factor to her psychiatric disorder. He considered that with further treatment there was a favourable prognosis for a full recovery in the next 12 to 24 months. He cautioned that the prognosis was far from certain and circumstances may change to cause the outcome to be less favourable.

Finally, Dr Dinnen stated:

“There is no evidence of a pre-existing condition with regard to her psychiatric disorder. However clearly there was a range of domestic and health problems which would have made her vulnerable to such a reaction. The workplace harassment combined with her injuries triggered off a psychiatric illness in my opinion.”

In a separate report dated 12 February 2009, Dr Dinnen assessed the worker as having a 17% WPI in respect of her psychological injury. In terms of social functioning he noted:

“She has a poor relationship with her husband and that has been the case for some time and that has deteriorated over the last couple of years or so. There is tension with the children. She told me the children ‘don’t understand me’. She is not able to show any love or affection to them. Her daughter says ‘you don’t kiss us, or hug us, you don’t love us’. At times she wonders why she should be there”.

Dr John Baker

Dr Baker is a Consultant Psychiatrist. Dr Trevor Chau (general practitioner) referred Mrs Doci to him for treatment. He prepared a report dated 26 August 2008 addressed to Dr Trevor Chau. Mrs Doci first consulted him on 18 July 2008 and saw him again on 1 and 14 August 2008. She provided a history of depressed mood becoming depressed about three months earlier. She reported poor sleep with some insomnia, tearfulness, irritability, poor appetite, weight loss, loss of interest in her work, being argumentative towards her husband and poor libido. She reported episodic thoughts of death and dying.

Dr Baker noted Mrs Doci attended a workplace psychological service after crashing her car on the way to work. She had difficulties in returning to driving after this accident. She made a claim for compensation, her physical injuries were accepted but her psychological injuries were not. She sought legal advice but was unable to pay the legal fees.

Dr Baker noted that the worker was seeing a psychologist ‘Paul’ from Trahaine Corpsych, whom she had seen on four occasions. She described a long history of workplace harassment where her fellow employees verbally denigrated her. She made a formal complaint but it made the situation in the workplace deteriorate further. Dr Baker noted that this resulted in a verbal argument between her and another employee which resulted in her becoming increasingly distressed tearful and upset and that appropriate management of the difficulties had not occurred over a long period of time, even after she had made formal complaints to senior management.

Dr Baker diagnosed a Major Depressive Disorder, single episode of moderate severity. He prescribed antidepressant medication. Whilst there is some history provided by the worker of life as a child before emigrating to Australia on 10 July 1991, the worker did not provide any history of issues in her personal life that may have caused or contributed to her condition. He proposed to continue to treat the worker and recommended she continue seeing the psychologist for cognitive behavioural therapy.

Dr Trevor Chau

Dr Chau provided a series of medical certificates between 22 January 2008 and 9 April 2009. They certify the worker as suffering from Depression/Anxiety caused by the cumulative effects of work related issues including harassment and bullying or simply “work related issues”. Dr Chau certified Mrs Doci unfit for duties between 15 May 2008 to 12 October 2008. He certified her fit for suitable duties from 13 October 2008 to 15 May 2009, mostly restricting Mrs Doci to 4 hours per day, 2 or 3 days per week. The nature of the restricted duties is unspecified and there is no report in evidence from Dr Chau to explain the certificates. It is not known what history he relied upon to reach his diagnosis.

Qantas’ Evidence

Mahmoud El-Ali

Mr El-Ali is Mrs Doci’s supervisor. He has worked for Qantas since 1993. He stated that if he wanted to see a worker he would normally communicate with a leading hand first.

Part of Mr El-Ali’s duties required him to monitor staff as they check in for work each morning. If a staff member is due for work and has not checked in, his or her name shows in red on his monitor and he is then required to follow up on their whereabouts.

On 7 May 2008 Mr El-Ali enquired of the leading hand, Berita Neal, whether Mrs Doci and another worker, Margaret Mitchell, had arrived at work. He was informed that Mrs Doci had not been seen. Within about 10 seconds of that remark Ms Neal informed him that Mrs Doci had in fact arrived. He requested her to have Mrs Doci “swipe in.”

Mr El-Ali stated that the worker then turned up in his office and alleged that he had been picking on her. He told her he needed to know where she was. She alleged she was being harassed. He then described the conversation with Wayne Lows referred to at [48].

In reference to the derogatory comment referred to at [49] Mr El-Ali said:

“I had a message on my mobile. My ex wife left a message about child support. I picked up the work phone and dialled my parents house and asked them to go to the top drawer to get some money and I said, ‘I can’t believe this fucking mole wants more money.’ Elfa didn’t hear the res [sic, rest] of the conversation but she heard that. I hen [sic, then] slammed the phone down. Elfa wasn’t even in the office at the time. Alex, I think, was there. I think the staff may have assumed that I was talking about Elfa. I wasn’t, they hadn’t seen the message on my phone. No one even noticed that I was on the phone to my parents.”

Mr El-Ali tried to call the worker to explain that the comment was not directed at her. She refused to talk to him. He attempted to call her again but her phone was switched off. He then reported the incident to his supervisor.

Mr El-Ali stated:

“Now that there is a full time job that has come up Elfa will complain and use this as a reason for not getting the job that she wants.”

In early 2008 the worker was informed that she was unsuccessful in her application for full-time employment. Mr El-Ali stated that she became hysterical. She told Mr Hubrechsen she “was going to take him for harassment”. He stated there were two other occasions that he was aware of where the worker became hysterical with the manager. One occurred in person and one over the telephone. He stated that he was aware that the worker had said to Marie Sanchez that she would allege harassment if she was not successful in her application for a full-time job. Soon afterwards the worker went off on stress leave.

Graham Olsen

Mr Olsen had been employed by Qantas for 29 years.

He stated that the worker has never come to him directly to allege that she has been bullied or harassed. He had previously counselled her in relation to her sick leave record.

On 22 January 2008, after the worker injured her ankle, he drove her to the Eastgardens Medical Centre. He arranged for her to have x-rays, and for her to take a taxi home. He stated that was the normal procedure, as he was required to return to duties. It is rare for somebody to wait with staff while they receive medical attention. He had no one to release that day and as manager he took it upon himself to drive her to the medical centre.

Mr Olsen stated that he was aware that the worker had been unsuccessful in numerous attempts to obtain full-time employment. He believed Mrs Doci blamed him for this, but he had explained to her on numerous occasions that he had never been part of any interview or selection panel when she has been a candidate for employment.

Mrs Doci had been seconded to a full-time position which she was due to commence on 23 January 2008, the day after she injured herself.

Samir Cutuic

Mr Cutuic has worked for Qantas for 10 years. He stated that he was aware of an incident between the worker and Mr El-Ali (which I infer is the 7 May 2008 incident) but he was not present at the time. The worker and Mr El-Ali had been good friends, they talked and joked with each other. He noticed a deterioration in the relationship between Mrs Doci and Mr El-Ali. He had heard Mr El-Ali comment that he didn’t like the worker anymore, “she wasn’t what she used to be and things like that.”

Mr Cutuic, Mr El-Ali, and the manager, Mr Hubrechsen, were required to submit reports concerning staff who were applying for permanent positions. There were about 30 staff involved. He stated that all three were in agreement about the applicants except for the report concerning the worker. Mr El-Ali told Mr Cutuic that he had put in an adverse report regarding Mrs Doci because he didn’t like her anymore. Mr Cutuic in turn told the worker that she could not expect to receive a favourable report from Mr El-Ali as the relationship wasn’t good.

He confirmed that if the computer monitor indicated that a staff member hadn’t swiped in, it was the allocator’s job to ring the leading hand to find out where the staff are. The system sometimes takes a few minutes to register from the time that the staff had swiped in until the time that it registered on the monitor.

Mr Cutuic stated that the worker had told him that she was keen to get a full-time position as she liked to work and was keen to stay in the Department. He made no comment in his statement concerning the allegations of sexual impropriety made by the worker.

Marie Sanchez

Ms Sanchez has worked for Qantas for 8 years. She has been friends with Mrs Doci and Mr El-Ali. She stated that the worker had been consistently turning up late for work. She noticed Mrs Doci’s attitude towards Mr El-Ali change because she thought he was too vocal when he thought people were doing the wrong thing.

She confirmed that the incident occurred as described by the worker at [48] she heard the worker screaming at Mr El-Ali to “off back”. She was embarrassed by the exchange and left the office. She did not hear the remark allegedly made by Mr El-Ali.

Ms Sanchez stated it was the worker’s aim to get full time work. She went on to state that she considers the worker to be an attention seeker. Ms Sanchez said that Mrs Doci’s husband was abusive to her and that Mrs Doci blamed Mr Olsen for being unsuccessful with numerous job applications at Qantas. She said:

“I heard that she is going to take this all the way if she doesn’t get full time on this side. Over the other side was night shift. We don’t do night shift on this side.”

Ms Sanchez confirmed that the worker had had numerous fights with her manager and Mr Olsen and had “gone off at them.” She was aware that Mr El-Ali was one of two resource allocators who were doing a six months secondment. It was not a promotion but she believed that the worker had mistaken this for Mr El-Ali receiving a promotion.

Ms Sanchez stated that the worker had been late for work by half an hour to an hour every day for a week at a time. She claimed that it was because she had to travel so far. She said that if staff comment on Mrs Doci being late, or request her to do something she “goes off at them and loses it. She has a terrible temper”.

Jennifer Eigenstetter

Ms Eigenstetter is a registered nurse employed by Qantas.

She first met the worker after Mrs Doci sprained her ankle in January 2008. She’s been to the medical centre on numerous occasions in relation to the ankle injury.

Mrs Doci made a claim for five days compensation in relation to a back injury. The date of the injury is unspecified. She sought to withdraw the claim almost immediately as it was likely to cause too much stress. The worker claimed that Mr Olsen was bullying her.

The worker sought assistance from Ms Eigenstetter on the day of her altercation with Mr El-Ali. She confirmed that the worker was distressed. She also treated her after she injured her ankle. In her dealings with Mrs Doci she was always highly emotional and overreacted and was at times hysterical.

Berita Neal

Ms Neal is employed by Qantas as an Airline Service Operator and Leading Hand.

Ms Neal stated it is routine for a Supervisor or Resource Allocator to contact the Leading Hand first if they are attempting to contact the worker. The Leading Hand would then speak to the worker and provide them with instructions.

Samir Cutuic is a Resource Allocator. There were occasions when he contacted Ms Neal when he was looking for Mrs Doci, but this did not happen any more frequently than when he requested to see other workers in her area.

In respect of the incident on 7 May 2008, Ms Neal confirmed that she was accused of laughing when Mrs Doci turned up for work. Ms Neal explained that she was laughing because only a moment earlier she had told Mr El-Ali that she had not arrived for work. She apologised for any misunderstanding.

Dr Ben Teoh

Dr Ben Teoh is a consultant psychiatrist. He prepared a report dated 9 June 2008 for Qantas Airways Ltd.

Dr Teoh stated that the worker gave a complex history involving several events that she claimed had caused her psychological distress.

Mrs Doci stated she was injured on 22 January 2008. She made a claim for compensation which was accepted, and she was subsequently certified fit for work. However she claimed that she was intimidated and “pressured to return to work,” claiming she had no choice other than to return to work.

On 7 May 2008 Mrs Doci stated she arrived late for work. A leading hand queried her whereabouts over the radio system. She felt humiliated over the incident and felt that a supervisor was harassing her. She lodged a complaint but felt resentment that her employer did not support her.

On 14 May 2008 the worker stated she was driving on her way to work when a car in front of her stopped suddenly causing her to take evasive action. She lost control of the vehicle and it came to rest on the footpath. She said the car hit the gutter. The car was driveable and she proceeded to work. She complained of chest and neck pain. She stated she was not concentrating at the time of the accident and was in fact on her way to see Dr Andrew Keller for review of her back injury.

The worker told Dr Teoh that she was angry that despite working as a permanent part-time employee for nine years she had unsuccessfully applied five times for a full-time position. She believed she had been unfairly treated.

Mrs Doci denied any history of depression. She stated she lives with her husband who works as a truck driver.

Dr Teoh stated that he could not find any evidence that the worker was suffering from a significant psychiatric condition consistent with symptoms that she had reported. He observed that she had exaggerated the psychological distress. There was inconsistency in the history she had given and the manner of her report during interview. He did not believe Mrs Doci suffered a psychiatric illness according to DSM IV Diagnostic Criteria. He stated that her prognosis in terms of her capacity to return to work is largely dependent on a satisfactory resolution of complaints and distress. It is likely she does not have motivation to return to work and she has shown evidence of abnormal illness behaviour.

Dr Teoh stated, “It is my opinion that the cause of the current disability is largely a result of the general resentment and dissatisfaction with work particularly following her initial ‘injury’ in January.” He also noted no specific physical abnormalities could be found to explain her physical distress. He did not agree with Dr Chau’s diagnosis of depression. He was not satisfied that Mrs Doci was genuinely suffering from anxiety/depression.

Pre-existing History

At Qantas’ request a Direction for Production issued to Dr Louis Moussa, the worker’s pre-injury local doctor, for the production of his medical records.

Relevantly, Dr Moussa’s hand written notes reveal the following entries:

1. 8 April 1997 – “concerned about her husband ... husband abusive.”
2.    2 April 2000 – “anxiety stress
crying a lot
neck pain headaches
having nightmares
counselling given…”
3.   17 November 2005 - after a lengthy entry dealing with other matters Dr Moussa noted - “... also husband gambling-counselling given”
4.   23 November 2005 – “main problem currently relationship with husband
physical abuse…
emotional abuse husband calls her name is slut etc later apologises ... husband works as a truck driver that does not give her money gambles most of the time. Her husband has now left the house…
patient would like husband to
not be abusive physically or mentally
stop gambling…
like to bring husband to a counselling session and referred to psychologist”

5. 5 January 2006 - “Was assaulted by husband on 30 December 2005 hit on head, on the left side of chest & right side by his fists. Patient went to Mt Druitt Hospital and was ... today had she has got a large bruise on her right…”

The Arbitrator’s Findings concerning psychological injury

The Arbitrator accepted at the outset that the history provided to Dr Dinnen and Dr Baker were incomplete. She recognised that that did not necessarily mean that the opinions expressed by them were unreliable. She correctly observed, however, that the facts proved must be sufficiently like the ones under consideration to render the opinion of the expert of any value. (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 (‘Paric’)).

The Arbitrator then set for herself the task of deciding whether there was “a material or not trifling discrepancy” on the history relied upon by Mrs Doci’s experts. In this respect she noted that two aspects of the history were particularly relevant, namely the history of Mrs Doci’s personal and work life.

The Arbitrator categorised the worker’s main complaints as follows:

- Being overlooked for full-time employment
- Being pressured to return to work early 2008
- Abuse incident involving Mr El Ali on 7 May 2008
- Sexual harassment complaint
- General problems at work

Given the conflicting accounts of the various incidents complained of, the Arbitrator was unwilling to accept Mrs Doci’s evidence, where it conflicted with that of other witnesses, unless corroborated.

The Arbitrator accepted, that irrespective of the merits of the selection process for full-time employment, Mr Doci perceived her treatment to be unfair. The Arbitrator accepted her complaints about friction in the workplace, but she was not satisfied that there was a proven factual basis for the allegation of sexual harassment. She found it was “word against word” where neither party was independent or corroborated.

The Arbitrator concluded that she could not be satisfied that Drs Dinnen and Baker based their respective opinions about causation on an accurate and complete history. Accordingly she gave no weight to their views on causation.

The Arbitrator was not satisfied that the requirements of section 9A of the 1987 Act had been met. An assessment of whether her employment was a substantial contributing factor necessarily involved an assessment of what other factors, if any, contributed to the injury. The Arbitrator concluded that in the absence of reliable information about those matters it was not possible to determine with any accuracy the extent to which employment factors contributed to the worker’s condition. Whilst the Arbitrator accepted that the worker’s employment played some role, on the information provided, she could not be satisfied it was a substantial contributing factor to the worker’s psychological injury.

Mrs Doci’s Submissions on the Psychological Injuries

The submissions in support of the grounds are unclear as they are drafted in a narrative form. However I have taken the submissions in support to be:
1. The Arbitrator misunderstood the history taken by Dr Dinnen. This is demonstrated by Dr Dinnen recording that Mrs Doci said, in response to the suggestion that her husband was abusive, an alcoholic and a gambler, “that is not really true…they exaggerated..”. It is submitted that the worker did not deny physical abuse by her husband but claimed that the reports of physical abuse in the statements of Mr El-Ali, Ms Sanchez and Ms Eigenstetter were exaggerated. The last mentioned physical abuse in Dr Moussa’s notes occurred in January 2006. Three years prior to the examination by Dr Dinnen.
2.   Although Dr Dinnen did not go into “chapter and verse” as to the events of the worker’s marital life it’s clear that he understood the intensity of the problems, specifically he noted:
“…However, clearly there was a range of domestic and health problems which would have made her vulnerable to such a reaction. The workplace harassment combined with her injuries triggered off the psychiatric illness in my opinion.”
3.    Dr Dinnen recorded that the marital relationship had entirely broken down and that the worker’s husband had in fact left the home. The doctor noted and took into account in reaching his conclusion that the marital problems did not cause any incapacity, nor did they require the worker to undergo any form of psychological treatment, including counselling or medication.
4.    Dr Dinnen’s opinion and the opinion of Dr Chau are logically probative, in finding that, in the context of being in an abusive marriage, the workplace incident, and in particular the public denigration by Mr El-Ali, triggered the psychiatric illness (Fernandez v Tubemakers of Australia Ltd (page 75) 2 NSWLR 190 (‘Fernandez’)).
5. The Arbitrator incorrectly rejected medical evidence by giving no weight to such evidence.
6. Any discrepancy in the history recorded by Dr Dinnen is a matter of degree, rather than of substance (Duc Dien Tran v Salmat Document Management Solutions Pty Ltd (wrongly sued as Salman Pty Ltd) (2008) NSWWCCPD 147 [78] & [79](‘Tran’)).
7. The Commission can comfortably find that the history provided in the report of Dr Dinnen provides a “fair climate” for the acceptance of his opinion, Paric.
8. The Arbitrator failed to have due regard to the opinion of Dr Chau. Although she accepted his certificates as reliable evidence in respect of the physical injuries alleged, she did not accept his certificates in respect of the psychological injury. It is submitted his opinion is consistent with Dr Dinnen, is sound, logical and consistent with the principles espoused in Fernandez.
9. Acceptance of the opinions of Dr Dinnen and Dr Chau would inevitably lead to a finding that the worker’s psychological condition was substantially contributed to by her employment particularly in light of the temporal connection, and therefore the provisions of section 9A are satisfied.

Qantas Submissions on the Psychological Injury

Qantas submits that the Arbitrator did not make a specific finding that the worker denied her husband was abusive, an alcoholic and a gambler, but rather recorded what Dr Dinnen noted in his report of 12 February 2009 at page 5 and 6. This was an integral part of the doctor’s history taking, and the doctor’s recording of the worker’s dismissal of the facts as stated by her best friend, Ms Sanchez, was clearly significant to the doctor’s opinion where he recorded that the patient was focused at interview on the sexual harassment and humiliation she suffered at the workplace. He noted the worker’s domestic problems as only relevant in “worsening in parallel with the increasing problems in the workplace.”

It is further submitted that it is clear that Dr Dinnen understood the worker’s history to him as only impacting on her wellbeing once the issues in the workplace had arisen. The history is in contrast with the prior history recorded, inter alia, in the local doctors notes of verbal and physical assaults upon the worker over the years previously, and in particular in November and December 2005 such as to require the worker to attend hospital for treatment of her injuries, whereas the complaints against the Respondent’s employees only commencing May 2008.

Concerning Mrs Doci’s claim of exaggeration of contemporaneous complaints regarding her domestic situation, Qantas submits that it is unlikely that the Appellant would have consulted a doctor in respect of every issue or event involving her family over the years. In any event, Qantas submits that the Arbitrator’s analysis was not flawed and was the logical and correct conclusion to be drawn from the evidence set out correctly by the Arbitrator at [62] of her Statement of Reasons (‘Reasons’).

Qantas disputes the Arbitrator overstated the principles in Makita. It submits that the Arbitrator did not refer to Hevi Lift and has not made any further submissions on its application.

Qantas further submits that the Arbitrator was correct to find, based on the worker’s lack of candour in their own evidence and the history she provided to the doctor regarding her domestic situation, that she could not be satisfied that her employment was a substantial contributing factor to her psychological injury.

Discussion and findings on the alleged psychological injury

The Arbitrator’s finding that the worker’s employment had not been a substantial contributing factor to her psychological condition was due to two factors. First, where it was uncorroborated, she rejected the worker’s evidence as unreliable. Second, due to an incomplete and inadequate history of prior psychological problems associated with the worker’s domestic life, she rejected the medical evidence of both Dr Dinnen and Dr Baker.

I agree with the Arbitrator’s summary of the issues alleged to have led to the worker’s psychological condition noted at [129]. Qantas investigated the worker’s complaints that she was pressured to return to work after injuring her ankle in January 2008. It accepted that there was a conversation between the worker and Mr Olsen concerning her return to work on the day of her accident. Qantas found that these enquiries were for legitimate operational reasons, however the worker’s perception of that event is quite different and she consistently reported it as a factor causing her to feel that her continuing employment was at risk.

There is no doubt that the events alleged by the worker on 7 May 2008 actually occurred. Mr El-Ali did not deny using the derogatory language alleged by the worker. Qantas accepted his explanation that those remarks were not directed at the worker. Nevertheless, in the circumstances it was reasonable for Mrs Doci to believe that those remarks were directed at her.

The complaint of sexual harassment was dismissed by Qantas, not because they were satisfied it did not happen, but merely because they could not determine the truth of the matter where neither party’s version could be corroborated.

I accept the worker’s evidence that she had been overlooked for appointment to a full-time position on several occasions. There is no evidence to the contrary. All of these events complained of were real events that occurred in the workplace. Even if it is accepted that the worker was vulnerable to developing psychological symptoms by reason of past events, or her current domestic situation, it is open to find that she has suffered a psychological injury if the injury arises from her perception of real events which occurred in the workplace and were not external to her employment (State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’)).

Mrs Doci made no attempt to hide the fact that there were problems in her domestic life. She told Dr Dinnen that she had an unsatisfactory relationship with her husband. They had problems intermittently. They finally separated “when the trouble started at the airport.” She went so far as to say to Dr Dinnen (referring to her husband) “I can’t stand his face”. She said that she had lost everything in their relationship and there had been no intimacy for some time. She volunteered to the doctor that she had financial problems paying for her daughter’s education and that her teenage daughter was causing problems stating “her behaviour agitates me.”

However, she told the doctor that statements that her husband was abusive, an alcoholic and a gambler were “not really true” further stating “they exaggerated.” The medical records produced by Dr Moussa indicate to the contrary. The references at [126] suggest that on several occasions between April 1997 and January 2006 the worker did complain to Dr Moussa about her husband being abusive and a gambler. The final entry in Dr Moussa’s notes states that the worker’s husband assaulted her on 30 December 2005 resulting in her requiring hospital treatment. Although Dr Moussa suggested the worker should undergo counselling, there is no evidence as to whether that advice was ever acted upon. There is no evidence to suggest that the worker required treatment for a psychological condition between December 2005 and May 2008 when Dr Chau was treating her. Nor is there any evidence that the worker suffered any incapacity during that period by reason of a psychological condition. The evidence is to the contrary. She remained at work performing her usual duties.

Although the worker has made contradictory statements concerning the extent of her domestic problems, I do not accept that she attempted to deny she had a history of domestic problems (see [146]). I accept the worker’s submission that although Dr Dinnen did not go into “chapter and verse” as to the events of the worker’s marital life it is clear that he understood the intensity of those problems. This is most clearly evidenced by his statement:

“…However, clearly there was a range of domestic and health problems which would have made her vulnerable to such a reaction. The workplace harassment combined with her injuries triggered off the psychiatric illness in my opinion.”

Dr Dinnen took a detailed history of all relevant events in the worker’s life whether they were work-related or not. He clearly weighed those factors together with his own clinical assessment and formed a view as to the diagnosis and causation of the worker’s condition. The reasons for his conclusions are clearly spelt out. In my view there is no question that his report satisfies the tests for expert opinion enunciated in Makita and Hevi Lift.

Whilst there may be some deficiencies in the history recorded by Dr Dinnen, concerning the extent of the worker’s domestic problems, I am satisfied that the history he relied upon is sufficiently like the facts proven to provide a “fair climate” for the acceptance of his opinion (see Paric).

In contrast to Dr Dinnen, Dr Baker either was not given, or did not elicit, any or any adequate history of issues in the worker’s personal life that may have caused or contributed to her condition. For that reason I have not place any weight on his opinion.

Similarly, I have not placed any weight on the medical certificates provided by Dr Chau. Notwithstanding he is a treating doctor, in the absence of any report to explain the history he obtained, his clinical findings and the reasons for those conclusions, the certificates carry little evidentiary weight.

Dr Teoh was not satisfied that the worker suffered any form of psychiatric illness according to the DSM IV diagnostic criteria. He noted that the worker gave an exaggerated and inconsistent history of psychological distress. Dr Teoh was the only witness who did not accept that the worker suffers from a psychological injury. However, he failed to record and weigh the worker’s complaints, which I accept, that she felt very tired and sad, she had problems sleeping and her memory and concentration were impaired. For these reasons, to the extent that his opinion is in conflict with that of Dr Dinnen, I prefer the latter.

I find that Mrs Doci suffered an adjustment disorder with depressed mood arising in response to her perception of a series of events, including the events of 7 May 2008, the alleged sexual harassment and misconduct by Mr Cutuic, the alleged intimidation by Mr Olsen, and her perception that she had been unfairly overlooked in selection for permanent employment.

For employment to be a “substantial contributing factor” to the injury for the purposes of section 9A of the 1987 Act the causal connection must be “real and of substance” Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 (‘Badawi’). Section 9A(2) provides a series of examples of matters to be taken into account for the purpose of determining whether a worker’s employment was a substantial contributing factor to the injury. In this case the examples that are most relevant are those found at subparagraphs (d), (e) & (f). There are factors relating to the worker’s state of health and lifestyle before the accident that are relevant to the considerations required under section 9A. That is, whether the worker suffered episodes of psychiatric illness prior to the injuries complained of, and in the absence of any work injury it’s possible that the worker may have suffered a psychiatric illness irrespective of any employment injury. However for the reasons given, I am satisfied that although the worker may have been vulnerable to developing psychological symptoms by reason of her domestic situation, the psychological condition from which she now suffers arose in response to her perception of a series of real and significant events occurring in the workplace. I am therefore comfortably satisfied that the test for the causal connection to the worker’s employment as recently discussed by the Court of Appeal in the Badawi has been satisfied.

Qantas raised the defence under section 11A of the 1987 Act in its section 74 notice of 20 June 2008 and in its Reply. It did not specify in either document the particular “action” it relied upon.

There are no submissions on this appeal relating to the section 11A defence. This is perhaps not surprising as the employer’s case is that the worker does not suffer from a psychological condition to which employment is a substantial contributing factor. There are no submissions on appeal concerning the section 11A defence and even if it had been pressed given the findings at [154] above, there is no evidence as to which action taken by Qantas, with respect to the matters specified in section 11A, were the “the whole or predominant cause of the worker’s psychological condition”.

Does Mrs Doci suffer an incapacity as a result of her physical injuries?

The physical injuries relied upon by Mrs Doci are:
“1. On 28 September 2002 she was injured as she was attempting to pull a newspaper free which was jammed between 2 seats.
2. In or about November 2005, she suffered injuries in a motor vehicle accident whilst driving to work.
3. In or about February 2007 [sic- 12 March 2007] she suffered injuries whilst driving home from work in a motor vehicle accident.
4. On 22 January 2008, her foot became caught in a blanket whilst cleaning a plane.
5. On 14 May 2008, she was driving to work when she was involved in a motor vehicle accident.”
The application pleads injuries to the “back, neck and left limbs” without differentiating which injuries are related to which incidents.

Evidence
Mrs Doci

On 28 September 2002 Mrs Doci was cleaning the interior of the plane when she found a newspaper jammed between two seats. She pulled hard at the newspaper in order to free it, and as she did she experienced pain in the low back, with pain radiating to the left leg. She was off work for six weeks after the injury. The pain improved with treatment, but did not resolve completely and she continued to experience back and left leg pain. The history obtained by Dr Paul Hitchen, an orthopaedic surgeon retained by Qantas’ solicitors, is consistent with this evidence but without reference to the referred pain in the left leg.

In November 2005 the worker was involved in a motor vehicle accident. Dr Evans noted she was driving to work at a speed of about 70 km an hour and was wearing a seatbelt. She changed lanes at the same time as a car in a different direction changed lanes, resulting in a side to side collision. Mrs Doci’s car was driveable after the accident, the repair cost was in the vicinity of $8000.00. The worker did not lose consciousness in the accident. She did not have any abrasions or bruising. She did not go to hospital. Following the accident she experienced neck pain and a worsening of the back pain. Dr Hitchen noted that after arriving at work she complained of chest pain and was taken to a medical centre. An ECG was undertaken but was normal. The worker was off work for about a week and in particular complained of neck pain. She had physiotherapy on her neck for a few months. She returned to work and was on light duties for a few weeks and then got back to normal duties. She told Dr Hitchen that after the accident she felt “prone to neck pain”.

Mrs Doci stated she was involved in another motor vehicle accident in February. This appears to be a reference to the motor vehicle accident on 12 March 2007, as recorded in her claim form dated 14 March 2007. She told Dr Evans that she was driving home at a speed of about 50 km an hour again wearing a seatbelt. She was on a roundabout when the front of her car collided with the side of another car. She did not go to hospital. She experienced further worsening of the pain in her neck and back. She was off work for a week after the accident. There was some improvement in the pain over subsequent weeks but both the neck and back pain were worse following this accident. The history recorded by Dr Hitchen is slightly different. He recorded the worker was off work for one week and returned on light duties, returning to normal duties after a few months.

On 22 January 2008 Mrs Doci reported to Dr Evans she was working on a plane, when her left foot became caught in a blanket, causing her to fall to the ground. She twisted her left ankle, and experienced a worsening of the back pain. She was taken by wheelchair to a local medical centre where she was x-rayed. She again experienced a worsening of the back pain, and her left ankle was swollen and painful. Mrs Doci was off work for three weeks after the accident. There was some improvement of the pain over subsequent weeks but the back pain was always worse after this accident, and she had continuing pain and instability in her left ankle. The history recorded by Dr Hitchen is consistent with this.

On 14 May 2008 Mrs Doci was involved in yet another motor vehicle accident. Dr Evans noted she was travelling at a speed of about 80 km an hour and wearing a seatbelt. The car in front of her suddenly stopped and she had to swerve to avoid it. Her car then went into a gutter. The damage was modest with repairs costing about $1,600.00. The worker did not lose consciousness in the accident. She was able to walk after it and did not go to hospital. She experienced a worsening of her back pain. Dr Hitchen noted she felt generally shaken up. She had pain in her neck, chest and lower back. She was off work until October 2008 and over that period she had physiotherapy to the neck and back.

Radiology

X-rays of the cervical spine (13 October 2008) were reported as normal, however, they showed mild narrowing of the C4/5 and C5/6 disc spaces.

A CT scan of the cervical spine (13 October 2008) showed, at the C3/4 and C4/5 levels, small osteochondral bars on the left side. They did not seem to be causing any canal or neural exit foramen narrowing. At the C5/6 level there was a mild posterior disc bulge.

A CT scan of the lumbosacral spine (19 February 2008) showed, at the L4/5 level, a small posterior central disc protrusion indenting the thecal sac. At the L5/S1 level there was again a small posteriocentral calcified disc protrusion. Neither protrusion appeared to be displacing neural structures.

Dr Evans

Dr Evans in his report dated 4 December 2008 recorded Mrs Doci’s complaints as follows:

“Neck pain. This is more troublesome on the left than on the right of the neck. It radiates to the shoulders and to the left arm, extending to the ring and little fingers of the left hand. She has numbness and tingling also in the left arm. The neck pain is aggravated by bending or twisting of the neck, by carrying a heavy supermarket shopping bag in each hand, by prolonged sitting reading or watching television, or by driving.
She has daily headaches, being worse when the neck pain is troublesome or when she is suffering from stress. They radiate from the back of the head to the remainder. They can commence at any time, have a ‘heavy’ quality, and last for some hours.
Back pain. This is felt in the low back, at the L5 level. It radiates to the left leg, being felt in the back of the thigh and the front of the calf, extending to the ankle. She has numbness and tingling in the left leg extending to the toes. The back pain is aggravated by bending or twisting of the back, by carrying a heavy supermarket shopping bag in each hand, by prolonged sitting, standing or walking, or by coughing or sneezing.
Left ankle pain. This is felt mostly anteriorly and laterally in the ankle. The ankle hurts when she sits resting. The pain becomes worse if she walks on level ground at a normal pace, and still worse if she walks on stairs, hills or uneven ground. The ankle gives way about once each day, inverting, causing her to stumble, but not to fall. It has locked on one occasion only. It swells.”

Dr Evans noted the worker’s complaints that her neck pain worries her the most, then the back pain, and least the ankle pain. She is woken on 2-3 occasions each night by neck pain.

Dr Evans diagnosed the injury to the neck non-specifically as “soft tissue damage to the cervical spine.” He said that he thought it was possible, but he could not be confident the condition resulted from a small C5/6 disc bulge.

Dr Evans diagnosed the back pain as arising from one or both of the small disc protrusions at L4/5 or L5/S1. The left leg pain was suggestive of irritation of the left L5 nerve root.

Dr Evans stated it was difficult to assess the left ankle clinically because of the non-organic component. He found that if the measured impairment of ankle movement were considered entirely organic the worker would have a whole person impairment of the left lower extremity of 8%. However, given his doubts about this and applying the WorkCover guidelines (involving inconsistent presentation) half the assessment of 4% of the left lower extremity was referable to the injury on 22 January 2008.

He assessed the worker as suffering from a 7% WPI impairment of the neck, half of which he found to be the result of a motor vehicle accident of November 2005 and the other half the result of a motor vehicle accident said to have occurred in February 2007, but which according to the claim form occurred on 12 March 2007.

In respect of the back Dr Evans assessed a 5% WPI impairment 1/5 of which was found to be the result of each of the injuries on 28 September 2002, November 2005, February 2007, 22 January 2008 and 14 May 2008.

Notwithstanding Mrs Doci’s embellished presentation, Dr Evans concluded that she was not fit her previous job of cabin cleaner. Physically he assessed that she was fit for light work, not requiring a great deal of bending or twisting of the neck or back, lifting weights heavier than 8 kg, and no excessive walking on stairs or hills. He stated “it is difficult to determine her fitness because of the overreaction: she does have problems but there can be little doubt that she is less incapacitated than appears.”

Dr Hitchen

Dr Hitchen examined the worker for Qantas on 29 January 2009 and prepared a report addressed to its solicitors the same day. He noted the worker’s complaints of ongoing symptoms in her neck, back and ankle. The worker claimed that the neck pain was constant with some referred pain down the outer left arm to the forearm. She also alleged constant back pain with pain radiating into the left hip and thigh, often radiating to her shin and ankle. She claimed the back pain was worse after sitting for more than half an hour and after rising from a seated position.

Mrs Doci reported to Dr Hitchen that her left ankle was unstable, and as a result, she uses an ankle guard on a regular basis. She claimed to be intolerant of wearing work safety boots. She was no longer receiving physiotherapy and had not done so since November 2008 and she did not take any regular analgesics.

Dr Hitchen was unwilling to give the worker an objective orthopaedic diagnosis. He stated that there was no objective pathological reason to explain the problems in her left ankle. He thought that her presentation was embellished and inconsistent. In his opinion the injury to the lower back in 2002 would at the worst, have been a muscular ligamentous strain, likely to have resolved within weeks.

Dr Hitchen did not accept the complaints of lower back pain associated with the motor vehicle accidents. He stated that in his experience injuries to the lumbar spine are most uncommon from motor vehicle accidents and normally only occur as a result of high-speed collisions. He opined that her lower back complaints after each motor vehicle accident were at worst a minor soft tissue strain, which again would have resolved within a matter of weeks, commensurate with the known healing of soft tissue injuries.

With regard to the alleged neck injury after the first motor vehicle accident, Dr Hitchen assessed the symptoms could have been due to cervical spondylosis seen on her CT scan. However, due to her embellished examination he did not make any finding but noted that any soft tissue injury to the neck would have been transient and resolved.

Dr Hitchen concluded Mrs Doci was fit to perform pre-injury duties without restriction. He found no evidence of impairment of the spine or left ankle.

The Arbitrators Findings

The Arbitrator made an award of compensation for one short period from 20 February 2009 to 2 April 2009 based on the medical certificates of Dr Chau. The Arbitrator noted that Dr Chau with the treating doctor and had the benefit of seeing the worker on a regular basis over an extended period of time.

The Arbitrator found that whilst the evidence was finely balanced she was satisfied the worker was entitled to compensation for a short period of time “as a result of her injuries in combination”. The Arbitrator was not satisfied that Mrs Doci had discharged the onus of proof that she has suffered any incapacity from a physical cause beyond 2 April 2009.

Mrs Doci’s submissions on physical injuries

The Appellant submits the Arbitrator did not make “proper findings” in respect of incapacity by reason of the physical injuries.

The majority of the medical certificates disregarded by the Arbitrator provided useful evidence in respect of incapacity and should be have been considered with all other relevant evidence.

The Arbitrator should have had regard to the opinion of Dr Evans and particularly his opinion that the worker is unfit to her previous job as a cleaner. Dr Evans made an objective assessment taking into account the inconsistency in the worker’s presentation.

The Appellant submits that the quantification of any award under section 40 should be based on the loss of one day per week which, in accordance with the agreed pre-injury earnings, would support an award in the sum of $195.95 per week from 20 February 2009 to date and continuing.

Qantas’ submissions on physical injuries

Qantas submit that the Arbitrator correctly analysed and weighed the evidence of Dr Evans and Dr Hitchen.

Qantas relies on various references from the evidence of Mr El-Ali, Ms Sanchez, Ms Eigenstetter, Mr Olsen, Ms Neal and Mr Cutuic as evidence of exaggeration by the worker, to support the Arbitrator’s finding that where her evidence was uncorroborated the worker’s evidence could not be relied on.

It submits that when reviewing an Arbitrator’s decision involving a discretionary judgement a Presidential member is bound by the decision of the High Court in Australian Coal and Shale Employees’ Federation and Another v The Commonwealth and Others (1956) 94 CLR 621 at 627, that is, there is a strong presumption in favour of the correctness of the decision appealed from. The decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong. The degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts, so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure to properly exercise the discretion which the law reposes in the court of first instance; House v The King (1936) 55 CLR 499 at 504-505. It is submitted that no such failure has been demonstrated in this matter.

Having expressed the view that the medical evidence was finely balance for and against the worker’s case for the weekly benefits based on physical injuries, the Arbitrator determined, that the certificates of the general practitioner were persuasive in determining the worker’s incapacity relevant to a physical cause. This was based, in part, on the Arbitrator’s non-acceptance of the worker, without corroboration, and in part on the lack of evidence establishing incapacity for the full physical requirements of the Appellant’s normal work duties.

Discussion and Findings on the Physical Injuries

Findings in relation to the nature and extent of the worker’s physical injuries, if any, are complicated by two factors. First, the Appellant has not pleaded the nature of the physical injuries alleged sustained by her in respect of each of the various incidents relied on. Second, the worker’s exaggerated presentation to Dr Evans and Dr Hitchen made diagnoses either impossible or extremely difficult to assess.

The Arbitrator relied on the medical certificates provided by Dr Chau, the worker’s general practitioner, to support an award in favour of the worker. However, in view of the dispute as to the nature of the neck, back and ankle injury and the aetiology of those injuries, in the absence of a report from the doctor explaining the certificates, in terms of the history he obtained his diagnosis and his opinion on causation, the certificates lack any evidentiary value.

The Arbitrator failed to make any findings as the nature or the cause of the injuries suffered by the worker, yet she made findings on incapacity. That is an error on the part of the Arbitrator. Therefore the award in respect of the physical injuries cannot stand and must be revoked.

It is clear that Dr Hitchen does not accept the worker suffers any ongoing incapacity. At best, he considered that the worker may have sustained some transient soft tissue injuries to the neck, back and left ankle, all of which would have resolved within a short period.

Dr Evans diagnosed the neck injury as a non-specific soft tissue injury to the cervical spine. Although he thought it was possible that the worker may have suffered damage to the cervical spine at C 5/6, he was not sufficiently confident to diagnose that condition as the injury suffered by the worker.

Having regard to all of the available evidence, and in particular the worker’s evidence, which I accept, that she suffered neck pain after the 2005 and 2007 motor vehicle accidents which never completely resolved, I accept Dr Evans’ assessment that the worker suffered a soft tissue injury to her cervical spine as a result of the motor vehicle accidents of November 2005 and 12 March 2007.

The CT scan of the lumbosacral spine demonstrated a small posterior central disc protrusion indenting the thecal sac at L4/5. There was also a small posteriocentral calcified disc protrusion at L5/S1. Dr Evans thought that the back pain was arising from either one or both of the small disc protrusions, stating that the left leg pain is suggestive of an irritation of the L5 nerve root.

To the extent that there is a conflict between the opinion of Dr Evans and Dr Hitchen in relation to the back injury I prefer Dr Evans for two reasons. First, Dr Hitchen has failed to adequately explain why he placed no significance at all on the demonstrated disc lesions at L4/5 and L5/S1, and second, the history Dr Hitchen recorded in respect of the injury in 2002 is inconsistent with the worker’s evidence, which I accept, and the history recorded by Dr Evans. The worker stated (supplementary statement paragraph 1) that she was attempting to pull a newspaper free, which was jammed between two seats. In doing so she bent over in an awkward position and pulled hard to free the newspaper and as she did she experienced immediate pain in the lower back, which radiated to the left leg. That history is consistent with the history recorded by Dr Evans. Dr Hitchen on the other hand, recorded that she merely bent forward in order to pick up a newspaper between the aisles. As she stood up with the newspaper in hand she developed sudden pain in her lower back. He later described it as a rather trivial incident.

The worker’s own evidence on the nature and extent of the lower back pain is extremely brief. The only reference to it is in her supplementary statement of 26 May 2008 where she said that her back never fully recovered after the injuries in 2002, 2005 and January 2008 and was aggravated by the injury in 2007. She also told Dr Evans and Dr Hitchen that the injury on 14 May 2008 aggravated her back.

Doing the best I can with the available evidence I find that the worker suffered an injury to the lumbar spine as a result of the injuries sustained on 28 September 2002 and 22 January 2008 and the motor vehicle accidents of November 2005, March 2007 and 14 May 2008, the combination of those injuries may have either caused or aggravated the demonstrated disc lesions in the lumbar spine. However, as the precise pathology has not been diagnosed with any degree of certainty, I am unable to make a finding as to the pathology of those injuries. However, I accept Dr Evans evidence that the effect of the aggravation is continuing.

Due to the worker’s exaggerated presentation to both Dr Evans and Dr Hitchen neither doctor was able to form any concluded view as to the diagnosis of the alleged injury to Mrs Doci’s left ankle. Dr Evans found that there was evidence of restriction of movement of the ankle but could not determine whether it was organic. He recommended further investigations in the form of x-rays, a radionuclide bone scan and/or MRI. He assessed the worker as having a whole person impairment based on measured impairments of ankle movement, discounted by his concern over the inconsistent presentation but without reaching a concluded diagnosis.

I accept the worker’s evidence that she suffered an injury to her left lower leg in January 2008 when her foot became caught in a blanket causing her to fall twisting the ankle. Given the state of the medical evidence, however, I am unable to make any finding as to the nature of the injury she sustained or the extent of any incapacity resulting from it.

Is the worker incapacitated as a result of the psychological and physical injuries?

I accept Dr Evans evidence that the worker is not fit for her previous job of cabin cleaner. I also accept that she would be fit for light work, not requiring a great deal of bending or twisting of the neck or back, lifting weights heavier than 8kg, or much walking on stairs or hills.

It follows from the findings that the worker suffers a psychological injury, to which her employment is a substantial contributing factor, and that she continues to suffer to some degree from the effects of her physical injuries, that the Arbitrator’s determination must be revoked and the matter re-determined. It is generally accepted that wherever possible the Presidential Member hearing the appeal should re-determined the issues (Chubb Security Australia Pty Ltd v Trevarrow (2004) 5 DDCR 1; [2004] NSWCA 344).

The evidence in relation to incapacity is in an unsatisfactory state. For example, in the Application to Resolve a Dispute the worker claimed compensation from 7 November 2008 to date and continuing at the rate of $1004.30 per week. However the agreed wage schedule filed by the worker stated that the worker had been paid “actual earnings” between 11 December 2008 and 12 May 2009, with nil actual earnings from 13 May 2009. There was no evidence concerning the nature of the worker’s pre-accident duties, or the nature of the duties she had undertaken after 11 December 2008.

In an attempt to clarify these and other issues I caused a telephone conference with the parties to take place on 11 November 2009. The worker was represented by her solicitor, Mr Santone and Qantas was represented by its solicitor, Ms Molemaar.

At the telephone conference the parties agreed that the claim for weekly benefits commences on 23 July 2008. Although there was uncertainty about it, it appears that the secondment to full-time work, the worker was due to commence in January 2008 was for an unlimited period of time. The parties were unable to clarify what the worker’s hours of work had been immediately before she went off work in January 2008. It was agreed that the worker has not undertaken any paid employment since 13 May 2009, although the reasons for that are unclear, but it may be due to an intervening heart condition, or the worker’s absence overseas for an extended period.

Even if these matters could be satisfactorily resolved there is no evidence as to the nature of the work the worker is now fit to perform. Whilst I have noted the restriction in the duties recommended by Dr Evans from a physical point of view, there is no evidence as to how those restrictions translate to particular forms of employment. Nor is there any evidence as to what the worker could be expected to earn in suitable employment. Further, the only evidence concerning the nature of the worker’s incapacity from her psychological injuries is that she should avoid confrontational situations. Qantas submitted that two of the worker’s said to have caused the worker’s psychological condition are no longer employed by Qantas. Attempts to contact the worker to discuss a return to duties has been frustrated by the worker being overseas or otherwise not contactable. In the circumstances without further evidence on these issues any reliable assessment of the worker’s ability to earn cannot be undertaken.

Given the unsatisfactory state of the evidence on incapacity I do not consider that I have sufficient evidence to re-determine the matter. Therefore, I direct that the matter be remitted to another Arbitrator to re-determine the remaining issues, consistent with the findings in this decision.

REVIEW

The Respondent’s submissions at [189] raise an issue as to the nature of a ‘ review’ under section 352 of the 1998 Act . The concept of ‘review’ was considered by the Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 (‘Chemler’), where, Spigelman CJ (with whom Basten JA and Bryson AJA agreed) observed at [28] and [30]:

“28.The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30.A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”

The nature of the “review” under section 352 of the 1998 Act has most recently been considered by the NSW Court of Appeal in Sapina v Coles Myer Limited [2009] NSWCA 71. The Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator in the course of which the Deputy President approached his task by examining whether or not error had been displayed in the reasoning of the Arbitrator. It was held (Allsop P and Hoeben J, Beasley JA agreeing) that such was the incorrect test for the task of review of the decision under the 1998 Act.

In the joint judgment of Allsop P and Hoeben J is an extensive and detailed examination of relevant authority concerning the proper construction of the term “review” ([17]-[59]). Following discussion of the authorities it was stated (at [57] and [58]):
“57.Whilst the new regime of dealing with workers’ compensation claims must be examined in its own statutory context, it is important to appreciate that the legislature has used a phrase that had in the prior regime, a tolerably settled meaning. Section 36 of the Compensation Court Act used the phrase “review the decision”. Subsections s 352 (1) and (5) of the WIM Act make clear that the “appeal” is to be by way of review of the decision. The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider that an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, “to decide whether the original decision is wrong [that is to] decide what is the true and correct view.” This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.
58.Just as error of the Arbitrator may be relevant, so might be the advantages of the Arbitrator in seeing witnesses. Nothing we have said, and none of the cases to which we have referred, necessarily requires the Presidential member to rehear the case or to recall all the witnesses. The approach of the Presidential member as to how he or she goes about reaching his or her own decision will be a matter for him or her within the confines and freedoms of s 354.”
I have approached the appeal with these principles in mind.

The Respondent’s submissions at [189] are inconsistent with the Court of Appeal’s clear statement of principle in Sapina as detailed above, and are misguided.

CONCLUSION

Having conducted a review in accordance with the principles discussed above, I have come to the conclusion that Mrs Doci suffered soft tissue injuries to the cervical spine as a result of the motor vehicle collisions on 29 November 2005 and 12 March 2007, the effects of which are continuing.

Mrs Doci also suffered injuries to the lumbar spine as a result of injuries on 28 September 2002, 29 November 2005, 12 March 2007, 14 May 2008 and 22 January 2008, the effects of which are also continuing.

In addition the worker suffered an injury to the lower left leg on 22 January 2008. It is conceded that the worker’s employment was a substantial contributing factor to each of the injuries sustained.

Paragraph one of the Certificate of Determination refers to an injury to the left lower extremity sustained on 14 May 2008. This appears to be an error. The evidence establishes that the injury to the left ankle was sustained on 22 January 2008. Counsel for the Respondent identified the correct date of injury to the left ankle at [T3:25].

Further, I have concluded that the worker suffered a psychological injury, in response to her perception that she had been unfairly overlooked for appointment to a full-time position with Qantas, her perception that her employment was threatened by her incapacity arising from injuries sustained on 22 January 2008. Her perception of alleged abuse by a fellow employee on 7 May 2008 and in response to her perception that a fellow employee had sexually harassed her.

Before the matter proceeds to the next arbitration I would suggest that the parties give attention to the current deficiencies in the evidence and should consider:

1. Preparing a comprehensive statement by the worker to include, in particular, evidence as to her pre accident duties, the nature and extent of her physical and psychological incapacity and the type of work she is now fit/unfit for.
2. Further medical evidence by both parties as to the nature and extent of the worker’s incapacity from physical and psychological conditions.
3. Current evidence of wage rates and evidence of what the worker could expect to earn in suitable employment.

OTHER

Notwithstanding a WPI assessment by Dr Dinnen, it is unclear whether a claim for lump sum compensation under section 66 for a primary psychological injury has been made. There is a reference in Part 6.2.1 of the Application to Resolve a Dispute to a “Schedule of Injuries/Section 66/67 claim” prepared by Maurice Blackburn dated 4 March 2009. This document was not however attached to the application filed in the Commission. This issue should be clarified at the next arbitration.

DECISION

Paragraphs (1) and (3) of the Certificate of Determination dated 14 July 2009 are confirmed.

Paragraph (2) is revoked and the matter is remitted to another Arbitrator for determination of the level and extent of any incapacity as a result of both the physical and psychological injuries in accordance with the reasons in this decision.

COSTS

The Respondent to pay the Appellant’s costs of the appeal.

His Hon. Judge Greg Keating
President
19 November 2009

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE KEATING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE