El Gusto Ristorante Pty Ltd v Bijas - [2011] NSWWCCPD 45

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		El Gusto Ristorante Pty Ltd v Bijas [2011] NSWWCCPD 45
APPELLANT:		El Gusto Ristorante Pty Ltd
RESPONDENT:		Anna Bijas
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-7785/10
ARBITRATOR:	Ms C Rimmer
DATE OF ARBITRATOR’S DECISION:		12 April 2011
DATE OF APPEAL DECISION:		24 August 2011
SUBJECT MATTER OF DECISION:		Appeal against findings based on credit of witness; dependency of spouse; section 37(4) Workers Compensation Act 1987; consequences of non-compliance with requirements of Part 15 rule 15.5 of former Workers Compensation Rules 2010 concerning content of Schedule of Earnings; obligation to provide sufficient reasons for decision
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bartier Perry
Respondent:	Drexler & Partners
ORDERS MADE ON APPEAL:		1. The Arbitrator’s finding that Ms Bijas received psychiatric injury arising out of or in the course of employment is confirmed. 2. Paragraphs 1, 4, 5, 6 and 7 of the Certificate of Determination dated 12 April 2011 are confirmed. 3. Paragraphs 2 and 3 of the Certificate of Determination dated 12 April 2011 are revoked. 4. The matter is remitted to Arbitrator Rimmer for redetermination of the dispute as to dependency and as to quantum of entitlement to weekly compensation. 5. The Arbitrator is directed to invite the parties to tender any additional evidence they may seek to adduce and to furnish any further submissions concerning the outstanding issues requiring determination. The appellant is to pay Ms Bijas’s costs of this appeal.

BACKGROUND TO THE APPEAL

Mrs Anna Bijas, who is 56 years of age, commenced employment with El Gusto Ristorante Pty Ltd (the appellant) in 1990. She was initially employed as a kitchen hand. That employment came to an end on an unspecified date in 1992. In 1994 Mrs Bijas was invited to return to the appellant’s restaurant and on 8 September that year recommenced employment, as a kitchen hand/cook. Mrs Bijas remained so employed until 1 November 2008 at which time she ceased work by reason of alleged physical and psychiatric injuries received in the course of that employment.
A claim for compensation benefits was made by Mrs Bijas against the appellant in April 2009. In a claim form forwarded to the appellant’s insurer she described her injury as “R arm, both shoulders and neck with depression and anxiety”. That form also contained detail of alleged “overwork” since 2004, as well as alleged abuse and harassment having been experienced in the course of her work.
On 30 April 2009 the appellant’s insurer gave written notice to Mrs Bijas that liability in respect of the alleged “anxiety disorder” was disputed. Notwithstanding that denial, the insurer accepted liability with respect to the allegation of physical injury as particularised in the claim form. Mrs Bijas has been in receipt of certain weekly payments of compensation since the date of that acceptance and the insurer has accepted liability in respect of ongoing medical and other treatment expenses relating to physical injury.
On 22 September 2010 Mrs Bijas filed an Application to Resolve a Dispute with the Commission seeking orders with respect to weekly payments and medical and associated expenses. The injury was described in that application as being “both hands/arms and anxiety disorder”. The claim made with respect to weekly payments commenced on 3 November 2008 and the claim as detailed included one with respect to her dependent spouse, Mr Andrew Bijas. The claim alleging dependency was made under s 37(6) of the Workers Compensation Act 1987 (the 1987 Act). The dependency was said to have existed “since 3 November 2008 to date and continuing”. The claim in respect of medical expenses included sums incurred in respect of treatment of the alleged psychiatric injury.
The matter came before Arbitrator Carolyn Rimmer for conciliation/arbitration on 17 December 2010 at which time each party was represented by counsel. Some agreement was reached concerning the issues in dispute. At the conclusion of submissions by counsel the Arbitrator reserved her decision.
On 20 December 2010, whilst the matter stood adjourned pending delivery of the Arbitrator’s reserved decision, a direction was issued by her to the parties. That direction was in the following terms:
“The following directions are made in this matter:
1. Parties to file submissions by 5:00PM on 22 December 2010 addressing the provisions of Section 37(4) of the Workers Compensation Act 1987 and in particular ‘… or (whether married to the worker or born before or after that date) becomes so dependent after that date.’”
The parties responded to that direction by the filing of submissions. The Arbitrator appointed a telephone conference which was conducted on 22 February 2011. On that occasion the Arbitrator made a further direction concerning the filing of further submissions by each party addressing “the section 37(4) issue”. Submissions were subsequently filed by each party in accordance with that direction.
A Certificate of Determination together with a Statement of Reasons was issued by the Arbitrator on 6 April 2011. Both the Certificate of Determination and the Arbitrator’s Reasons were, following submissions put to the Arbitrator, the subject of minor amendment concerning a costs order, and both the Certificate and the Reasons were issued in amended form on 12 April 2011.

THE DECISION UNDER REVIEW

The Amended Certificate of Determination dated 12 April 2011 records the Arbitrator’s findings and orders as follows:
“The Commission determines:
1. That the Respondent pay the Applicant’s medical expenses pursuant to section 60 of the Workers Compensation Act 1987 in respect of her psychiatric injury on production of accounts and/or receipts.
2. That the Applicant’s spouse, Andrew Bijas, since 1 July 2009 was and is mainly dependent on her for support pursuant to section 37(4) of the Workers Compensation Act 1987.
3.       That the Respondent pay the Applicant weekly compensation as follows:
(i)at the rate of $650 per week from 3 November 2008 to 3 May 2009 pursuant to section 36 of the 1987 Act.
(ii)at the rate of $389.19 from 4 May 2009 to 30 June 2009 pursuant to section 37 of the 1987 Act;
(iii)at the rate of $491.70 from 1 July 2009 to 30 September 2009 pursuant to section 37 of the 1987 Act;
(iv)at the rate of $500.50 from 1 October 2009 to 31 March 2010 pursuant to section 40 of the 1987 Act;
(v)at the rate of $510.10 from 1 April 2010 to 30 September 2010 pursuant to section 40 of the 1987 Act;
(vi)at the rate of $516.90 from 1 October 2010 to date and continuing at the maximum statutory rate for a worker with a dependent spouse pursuant to section 40 of the 1987 Act.
4.       That the Respondent pay the Applicant’s costs as agreed or assessed.
5.       This matter is certified as complex.
6.       I certify an uplift of the Applicant’s costs at 20%.
7.       I certify an uplift of the Respondent’s costs at 20%.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
An appeal against the Arbitrator’s determination was registered with the Commission on 10 May 2011.

ISSUES IN DISPUTE

The issues in dispute raised by the appellant are whether the Arbitrator erred in the following respects:
(a)     finding that Mrs Bijas’s psychological condition arose out of or in the course of employment and that employment was a substantial contributing factor to that injury;
(b)     finding that Mrs Bijas’s husband, Mr Andrew Bijas, was “dependent” and by awarding weekly compensation in respect of that dependency;
(c) failing to “exercise procedural fairness in considering the application of s 37(4)” of the 1987 Act;
(d)     rejecting the appellant’s tender of “further evidence” which accompanied written submissions put by the appellant in March 2011;
(e)     the determination of Mrs Bijas’s probable earnings but for injury;
(f)      failing to correctly apply the provisions of s 40 of the 1987 Act, and
(g)     failing to afford procedural fairness concerning conduct of a further hearing and receipt of further evidence and submissions concerning matters ultimately determined.
The summary of the issues which appear above are taken from the appellant’s submissions provided on this appeal under the heading “Grounds of appeal”.

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 Nos 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of s 352(3) and s 352(4) of the 1998 Act had been met.

ADDITIONAL EVIDENCE

The appellant seeks to rely upon additional evidence being those documents attached to a “schedule of fresh evidence” which forms part of the documentation presented on this appeal. The additional evidence is described in that schedule as “group certificate [sic] provided to [Mrs Bijas] from the appellant for the years ending 2003 to 2008”.
The appellant had attempted to adduce the evidence contained in the group certificates abovementioned following the teleconference which occurred in February 2011. That attempted tender is acknowledged by the Arbitrator at [133] of Reasons. It is recorded by the Arbitrator that Mrs Bijas objected to the admission of the group certificates. It appears that the Arbitrator treated the tender made at that time as being an application seeking to tender late documents as was permitted by the Commission Rules. The Arbitrator addressed the appellant’s application between [135] and [139] of Reasons. The appellant’s application was then refused. Accordingly the group certificates were excluded from that evidence which was before the Arbitrator.
The appellant’s present application is made as permitted by the provisions of s 352(6) of the 1998 Act which provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
The appellant has made written submissions in support of the admission of that additional evidence which is to be found at Part A [2.5] of its application concerning this appeal. It is argued that the documents should be admitted in the interests of justice and “in order to ensure the application of natural justice”. The history concerning the earlier rejected tender of the documents is noted in those submissions and it is asserted that the appellant first “concluded that the Arbitrator was not aware that the worker had not been paid the statutory maximum [compensation]” until, following the hearing, a request had been made by the Arbitrator for submissions concerning the relevance and application of s 37(4) of the 1987 Act.
Mrs Bijas argues against the admission of those documents in the written submissions provided in support of her opposition to this appeal. Concerning the Arbitrator’s earlier rejection of this evidence, Mrs Bijas asserts that there had been no reason offered by the appellant “for the delay in producing this material as required by [the Rules]”. She also argues that the material was not probative and a reference is made to the Arbitrator’s observations concerning the evidentiary weight of that material at [139] of Reasons.
The appellant argues that the evidence generally established that Mrs Bijas at relevant times had been paid weekly compensation at a rate less than the statutory maximum which is fixed by the provisions of s 37 and s 38 of the 1987 Act. Having regard to the content of correspondence addressed to Mrs Bijas from the insurer dated 13 November 2009 that assertion appears to be correct. The rate the insurer had calculated Mrs Bijas’s entitlement was the sum of $368.50 per week which, it was stated in the correspondence, was payable in accordance with the provisions of s 38. Leaving aside the question as to whether the insurer had correctly calculated Mrs Bijas’s entitlement, it is reasonably clear that payments of weekly compensation had been calculated having regard to the figures as appear in the group certificates which are the subject of the appellant’s application.
The state of the economic evidence as it stood before the Arbitrator is more fully discussed below. The Arbitrator’s award makes provision for weekly payments from 1 October 2009 pursuant to s 40 of the 1987 Act. As discussed below, the Arbitrator has quantified Mrs Bijas’s weekly entitlement without there being any express finding as to the extent of incapacity. Nor have there been findings as to Mrs Bijas’s pre-injury earnings, her probable earnings but for injury or her ability to earn in her incapacitated state.
I note the views expressed by the Arbitrator at [139] of Reasons concerning the probative value of matters recorded in the group certificates. Notwithstanding those views I consider that any available evidence relevant to the issues which I have enumerated in [22] immediately above should be before the Commission to enable the parties to fully present argument as to those matters. I am of the opinion that it is in the interests of justice that the group certificates be admitted into evidence and I grant leave to the appellant to tender those documents.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded and a transcript (T) has been prepared and made available to the parties. No oral evidence was adduced at the hearing.
Counsel appearing on behalf of the appellant informed the Arbitrator of those issues which were in dispute and indicated certain matters which were not controversial. It was stated that there was “no medical controversy that [Mrs Bijas] has a psychological condition”. The primary issue between the parties was said to be “the nexus between employment and the anxiety disorder” suffered by Mrs Bijas. Counsel also indicated that the appellant relied upon the provisions of s 9A of the 1987 Act and asserted that employment was not a substantial contributing factor to injury. A third issue in dispute concerned the relevance of s 14 of the 1987 Act. Argument was advanced during submissions that no compensation was payable upon proof that the injury received by Mrs Bijas was solely attributable to her serious and wilful misconduct: s 14(2).
Counsel appearing on behalf of the appellant informed the Arbitrator that liability for weekly payments in respect of incapacity following the physical injuries alleged by Mrs Bijas had been accepted. It had earlier been stated by counsel that as at the date of the hearing Mrs Bijas was being paid weekly compensation “at the statutory rate”. Counsel also noted that Mrs Bijas had in her application made “a claim for the dependency of her husband”.
The documentary evidence before the Arbitrator was noted by her at [9] of Reasons. The evidence relied upon by Mrs Bijas included a written statement made by her dated 27 August 2010. That evidence is summarised by the Arbitrator between [14] and [26] of Reasons. The allegations made by Mrs Bijas as to the onset of her psychological injury concerned aggressive conduct directed towards her by co-workers. Many of her difficulties started when Ms Pela Tuipe’a commenced employment with the appellant in July 2008. Mrs Bijas described “bullying and annoying” conduct by her co-workers and unsympathetic responses by her superiors to complaints made by her. Mrs Bijas described circumstances of considerable conflict in the workplace late in October 2008. During her shift on 1 November 2008 Mrs Bijas was again, she states, the subject of aggressive behaviour by her co-workers. It is stated that her superiors would not “get involved” and refused to help her. Mrs Bijas became very agitated and said “I have to go – I quit”. She then left the restaurant in a panic. Other evidence establishes that she was treated at Campbelltown Hospital emergency department later that night where she presented with symptoms associated with a panic attack. The diagnosis was that of “hysteria”.
The appellant relied upon the evidence of Mr Wessam (Sam) Gahzi Elali, a director of the appellant and head chef at the appellant’s restaurant; Mr Ethan (Danny) Afoa, team leader employed by the appellant, and Ms Pela Tuipe’a, a kitchen hand employed by the appellant.
The Arbitrator summarised that lay evidence between [27] and [39] of Reasons. The evidence of Ms Tuipe’a contradicts, in part, that of Mrs Bijas. It is stated that Mrs Bijas’s conduct was aggressive and that she was argumentative. Mr Elali stated that Mrs Bijas was often hostile and that she upset other staff. The evidence of Mr Afoa does not touch on Mrs Bijas’s behaviour on and before 1 November 2008 other than to state that he had seen her at the restaurant on that last day of work. He was asked by Mrs Bijas, on 3 November 2008, to help her. Mr Afoa understood that Mrs Bijas wanted support for her claim “against the restaurant”.
Mrs Bijas relied upon the evidence of a number of medical practitioners; the contents of medical records of her general practitioner Dr B Pisarska, and clinical notes produced by Campbelltown Hospital.
There were three reports in evidence of Dr Robin Andrew Haig, psychiatrist, who has treated Mrs Bijas since 1 December 2008. Dr Haig opined that Mrs Bijas suffers from a chronic Adjustment Disorder with Depression and Anxiety following harassment at work. That condition had, in his opinion, been exacerbated by the chronic pain experienced as a result of work related physical injuries. In July 2010 he expressed his opinion that Mrs Bijas was totally incapacitated “to attend work as a result of her psychiatric condition now or in the future”.
The appellant relied upon the evidence of Dr Matthew Jones, psychiatrist, found in his report dated 1 March 2009. It was Dr Jones’s opinion that Mrs Bijas had experienced a panic attack on 1 November 2008 and that, at the time of his examination, was suffering from an anxiety disorder. Dr Jones noted that there were inconsistent descriptions of factual circumstances and it is clear that he had read the statements of the appellant’s witnesses summarised above.
Dr Jones opined that the “inconsistencies” concerning events at the workplace made it “difficult to be clear about causation”. At page 7 of his report he addressed this question in the following terms:
“If Ms Bijas’ version of events is, in fact, true then it would be reasonable to consider that the conflict she described in the workplace precipitated a panic attack that contributed her [sic, to her] developing a longstanding anxiety disorder.
Were the versions of events reported by other witnesses, in fact true, then it would be more likely to assume that Ms Bijas alleged panic attack occurred in the context of increased arousal, agitation and anger, essentially induced by her.”

The balance of the evidence relevant to matters raised on this appeal, including relevant wage and other economic evidence, is addressed in the course of discussion which appears below.

Submissions before the Arbitrator

Counsel appearing on behalf of the appellant disputed the existence of a “nexus” between employment and the accepted anxiety disorder suffered by Mrs Bijas. Reliance was placed upon the evidence of Dr Jones. It was put that if Mrs Bijas’s evidence as to events at the workplace were to be accepted “her employment was a substantial contributing factor. If not, if her version of events is not correct, her symptoms are due to matters unrelated to work” (at T4).
The appellant’s counsel argued, further, that acceptance of the evidence of the appellant’s witnesses would lead to a conclusion that the subject injury was solely attributable to Mrs Bijas’s serious and wilful misconduct in terms of s 14 of the 1987 Act. If such a finding were to be made, compensation, it was argued, was not payable in respect of that injury.
Counsel made it clear in the course of submissions that, should a finding of compensable injury be made, there was “no issue as to the necessity for treatment”.
Submissions concerning the claim in respect of Mr Bijas’s dependency were prefaced by the statement by counsel “I think [the appellant’s] position is that [Mrs Bijas] [has] been paid at the statutory rate at the moment” (at T6).
Counsel addressed the evidence of Mr Bijas concerning his self employment and the need to reduce his acceptance of work by reason of the need for him to care for Mrs Bijas after her injury. Whilst those facts were not challenged, counsel argued that Mr Bijas had not been “thrown into a position of dependency”. It was put that Mr Bijas had become his wife’s “carer” and as a result had “given away his income earning activity”. Such circumstance, it was argued, “does not attract the benefits that are sought by [Mrs Bijas]”. It was put that such circumstances are addressed by the legislation elsewhere than in s 37(6). Reference was made to “section 151AA, Entitlement for Carers” [sic, s 60AA of the 1987 Act].
The claim concerning dependency brought pursuant to s 37(6) was, it was submitted, not made out given that Mr Bijas was not “employed” in terms of that subsection, nor was there proof that Mr Bijas had “left that employment for the purpose of caring for the worker” as the Act provides.
In submissions put on behalf of Mrs Bijas, counsel made reference to the clinical notes of Dr Pisarska as being supportive of his client’s version of events in the workplace. The opinion of Dr Haig was relied upon concerning the causal relationship between Mrs Bijas’s work and the occurrence of the psychological injury. It was further put that the facts do not permit a finding against Mrs Bijas in terms of s 14(2) of the 1987 Act.
Counsel made reference to the evidence of Mr Bijas found in his statement made on 19 November 2010 where it was stated “I still do some jobs but very few while my wife continues to require my attention”. It was put that should that evidence be accepted it was open to find that Mr Bijas “has refused certain jobs” and that “he has left some jobs behind”. The argument was that such evidence established that Mr Bijas has, in a relevant sense, “left that employment for the purpose of caring for the worker” in terms of the relevant subsection.

Supplementary Submissions

As earlier noted, the Arbitrator, after her determination had been reserved, made a direction and invited submissions as summarised at [6] above. Each party responded to that direction and a subsequent direction was made, it seems, in February 2011.
The appellant, in the first instance, submitted that no reliance had been placed by Mrs Bijas at the hearing upon the provisions of s 37(4) which section had been the subject of the Arbitrator’s direction. Ultimately, in March 2011, the appellant furnished submissions suggesting that any “assessment” of entitlement to weekly compensation in respect of dependency (s 37(4)) should, as a matter of procedural fairness, not be “undertaken”. It was put that there is no evidence of past or present dependency of Mr Bijas. An attempt was made to tender the group certificates noted at [16] above which were rejected by the Arbitrator in the course of her Reasons at the time she made her determination.

The Arbitrator’s decision

The Arbitrator noted those matters in dispute which required determination at [6] of her Reasons. The first issue addressed was the question whether Mrs Bijas had received a psychiatric injury arising out of or in the course of her employment. The lay evidence was examined and, following an evaluation of that material and the medical evidence, the Arbitrator made a finding of injury in favour of Mrs Bijas. A finding was also made that Mrs Bijas was entitled to a general order pursuant to s 60.
The appellant’s submission concerning the application of s 9A of the 1987 Act was rejected by the Arbitrator and a finding was made that Mrs Bijas’s employment was a substantial contributing factor to her injury.
The defence raised by the appellant pursuant to s 14(2) was rejected by the Arbitrator. The reasons stated for that rejection included a finding that the Arbitrator was “not convinced on the evidence in this matter that the actions of [Mrs Bijas] amounted to serious and wilful misconduct”. The finding was also made that the psychiatric injury was not, in any event, solely attributable to the events on 1 November 2008.
The Arbitrator rejected Mrs Bijas’s claim in respect of alleged dependency of her husband brought pursuant to s 37(6). That rejection followed the Arbitrator’s finding that she was not persuaded that Mr Bijas had “left his employment as a painter and handyman for the purpose of caring for [Mrs Bijas]”.
Following consideration of the submissions advanced concerning the relevance of s 37(4), the question of Mr Bijas’s dependency and Mrs Bijas’s entitlement to an award under that provision, the Arbitrator made a finding that as from 1 July 2009 Mr Bijas was mainly dependent upon Mrs Bijas for support.
The Arbitrator proceeded to consider the evidence concerning Mrs Bijas’s pre-injury earnings. The Arbitrator made a finding which “deemed that the particulars of the earnings as set out in [Mrs Bijas’s] wages schedule [were] admitted” by the appellant. Findings were then made concerning weekly compensation and an award was then entered in favour of Mrs Bijas in those terms as appear at [3] of the Certificate of Determination noted at [9] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act as amended by the Workers Compensation Legislation Amendment Act 2010: Sch 6 Pt 19G cl 8 to the 1987 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

Ground one

The first issue addressed in the appellant’s submissions is the suggested error of fact committed by the Arbitrator concerning her finding as to the occurrence of injury. It is put that the determination made was against “the weight of the evidence”. Those submissions include the particular complaint that the Arbitrator erred “in concluding that the apology made by Ms Tuipe’a and referred to in her statement supports the worker’s version of events”.
The appellant asserts that the Arbitrator’s conclusion concerning the occurrence of injury is tainted by error, in that her acceptance of Mrs Bijas’s evidence was against the evidence. It has earlier been noted that the evidence of Ms Tuipe’a and that of Mrs Bijas give conflicting versions of the happenings at the workplace, in particular, on 1 November 2008. The essential difference between the versions of events in that evidence is that Ms Tuipe’a alleges that Mrs Bijas was the aggressor, whereas Mrs Bijas states that she was the subject of harassment and bullying, and that her employer neglected to correct her circumstances.
The Arbitrator’s preference for the evidence of Mrs Bijas was a conclusion reached which was founded, in part, upon an assessment of the credit of the witnesses. The Commission’s approach to an appeal against such a finding of fact may be guided by those matters as stated by the High Court in Devries v Australian National Railways Commission [1993] HCA 78; 112 ALR 641; 67 ALJR 526; 177 CLR 472 (Devries) and by subsequent authority. In Devries, which concerned a review by the Full Court of a finding as to credit made by the trial judge, it was stated that such a finding could properly be overturned “only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the effect of the overall evidence was such that it was not reasonably open to the trial judge to accept [the plaintiff] as a witness of truth” (per Deane J and Dawson J at 483). Further guidance concerning an appeal in respect of findings of fact based on credibility of a witness may be found in the joint judgment of Brennan, Gaudron and McHugh JJ (at 479, omitting footnotes):
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his (or her) advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’."
Since the decision in Devries, there have been numerous pronouncements made by the superior courts concerning those matters relevant to a challenge on appeal of findings founded upon credibility of a witness. Further helpful guidance may be derived from a consideration of those matters stated by the Full Court of the Federal Court of Australia in Cabal v United Mexican States [2001] FCA 427; 108 FCR 311 at [223] and [224] which were cited in the course of discussion by Hodgson JA in Costa v The Public Trustee of NSW [2008] NSWCA 223 at [23]:
“[223] The principles which govern the review by a Full Court of primary judge’s findings of fact are as stated in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. See also Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167; Devries v Australian National Railways Commission (1933 [sic, 1993]) 177 CLR 472; and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588. In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge. However once having reached its own conclusion it will not shrink from giving effect to it.
[224] Notwithstanding the fact that the learned primary judge’s review was conducted on the papers, and without any opportunity to consider the demeanour of the witnesses, the weight to be accorded to the evidence of the experts was primarily a matter for his Honour to determine. This Court can consider whether he fell into appealable error in that regard but it will not approach that evidence as though this were a rehearing de novo in which his Honour’s views count for nought. If, after giving full weight to his Honour’s views, we are persuaded that the conclusions which he reached were erroneous we must set aside his finding of fact. We cannot however simply substitute for his Honour’s findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance.”
In the present case, the Arbitrator addressed the conflicting evidence between [80] and [90] of her Reasons. When considering that evidence, the Arbitrator correctly observed that Mrs Bijas’s description of events that occurred on 28 October 2008, which involved aggressive and threatening behaviour by Ms Tuipe’a, stands uncontradicted. There was, as observed by the Arbitrator, conflict between Mrs Bijas and Ms Tuipe’a concerning their versions of the events of 1 November 2008. The reasons as expressed by the Arbitrator reveal that her preference for the evidence of Mrs Bijas where it differed to that of Ms Tuipe’a was founded upon a number of matters which include:
(a)     consistent histories as to events were given by Mrs Bijas to Dr Haig and Dr Jones within a short period of time following her ceasing work;
(b)     it was common ground between the witnesses that Ms Tuipe’a apologised for her behaviour following the events of 28 October 2008;
(c)     the evidence of Mr Elali as to the occurrences on 1 November 2008 was not based on his personal observations, but upon information provided to him by others;
(d)     there was an inconsistency between the evidence of Ms Tuipe’a and the version of events stated by Mr Elali said to have been given to him after the confrontation which undoubtedly occurred on 1 November 2008, and
(e)     acceptance of the evidence that Mrs Bijas had experienced a panic attack on her last day of employment, which would have been “unlikely” if the events had occurred as described by Ms Tuipe’a.
In the course of her reasons, the Arbitrator noted that both Mrs Bijas and Ms Tuipe’a gave evidence that Ms Tuipe’a apologised to Mrs Bijas at the commencement of work on 30 October 2008. At [83] of Reasons, the Arbitrator has recorded her inference from the evidence concerning the apology “that some workplace conflict had occurred between [Mrs Bijas] and Ms Tuipe’a, sufficient to warrant the apology”. That process of reasoning is, as earlier noted, the subject of specific complaint by the appellant on this appeal. It is asserted that the drawing of that inference was made in error and it is argued that the evidence concerning the apology “only goes to suggest that Ms Tuipe’a was anxious to try to get on with the worker and that in fact it was the worker’s conduct that was inappropriate”. That argument, which merely asserts an alternative inference, must be rejected. The inference drawn by the Arbitrator was open to her on the evidence and nothing put on behalf of the appellant persuades me that the inference drawn was, as described in Devries, “glaringly improbable”.
Particular complaint is also made by the appellant concerning the Arbitrator’s conclusion that Mrs Bijas would not have “suffered a panic attack of the severity” experienced on 1 November 2008 if events of that day were as described by Ms Tuipe’a. It is suggested that the Arbitrator’s conclusion “disregards the opinion of Dr Jones” and it is said that the conclusion was reached “without adequate reasoning”.
It is reasonably clear that the evidence of Dr Jones, upon which the appellant relies when advancing this argument, is that summarised at [33] above, where Dr Jones appears to accept that a panic attack of the severity experienced by Mrs Bijas could have been precipitated by either set of circumstances described in the conflicting evidence. It is to be noted that Dr Jones’s views were not the subject of the Arbitrator’s attention at the time she considered the occurrence of the panic attack in the course of her reasons. However, it may be seen that the Arbitrator’s determination followed a consideration of the following matters at [90]:
“The hospital notes reported that she had an altercation at work a few days prior that led to her resignation today and she went home upset and was crying and rocking herself and was inconsolable according to the husband. It does not seem plausible, in my view, that if the applicant had pushed Jessica she would have reacted in such an extreme way. In any event, what is common in both versions, was that there was considerable conflict in the workplace and this was associated with an amount of emotional turmoil generated by the conflict. The events of 28 October 2008 and 1 November 2008 were so stressful and had such an impact on the applicant that they produced the psychaitric [sic] injury. I am satisfied particularly after considering the hospital notes and clinical records of Dr Pisarska that the events on 28 October 2008 and on 1 November 2008 had a devastating impact on the Applicant’s mind and that these events were undoubtedly a product of distressing altercations between the applicant and other workers. This workplace conflict operated on her personality so as to create stress and psychiatric illness. I am satisfied that what occurred was not merely the manifestation of a difficult personality.”
Notwithstanding the arguments advanced on behalf of the appellant, I have reached the view that the inferences drawn and findings made by the Arbitrator were available to her on the evidence and, more particularly, adequate reasons have been expressed by her for reaching those conclusions. It is correct, as the appellant has argued, that the Arbitrator has impliedly rejected the hypothesis advanced by Dr Jones that, upon an acceptance of the appellant’s version of events, the panic attack occurred in the context of increased arousal, agitation and anger.
Having accepted the evidence of Mrs Bijas, the Arbitrator’s conclusion as to causation is consistent with Dr Jones’s opinion founded upon acceptance of those facts. The Arbitrator had earlier, at [50] of Reasons, carefully summarised Dr Jones’s evidence. While it is clear that one aspect of Dr Jones’s evidence had been impliedly rejected, it cannot be said that the Arbitrator has failed to take that witness’s evidence into account. The Arbitrator was not, particularly given her conclusion as to the facts in dispute between the lay witnesses, concerned with the alternative hypothesis advanced by Dr Jones, nor was she bound to accept all that evidence found in Dr Jones’s report. It is clear that the Arbitrator had relied upon significant evidentiary material not available to Dr Jones.
The appellant also asserts under this ground that the Arbitrator erred in finding that employment was a substantial contributing factor in terms of s 9A of the 1987 Act. There are no submissions in support of this assertion. The facts as found by the Arbitrator demonstrate that all matters relevant to causation of injury were work-related. As noted by the appellant’s counsel at the hearing (at T4), “[Dr Jones] says if Ms Bijas’s version is correct, then work would be a substantial contributing factor”. In my view, the appellant has failed to establish any basis upon which the Arbitrator’s conclusions concerning issues raised by s 9A may be challenged.

Grounds two and three

The second ground relied upon by the appellant raises two distinct matters of complaint, which are:
(a) error in finding that Mr Bijas was “dependent” upon his wife, and
(b) the Arbitrator’s failure to exercise procedural fairness in considering the application of s 37(4) of the 1987 Act concerning the issue of dependency.
Those two matters of complaint are, in my view, matters closely related to the complaint made in ground three, which challenges the Arbitrator’s rejection of the tender of the group certificates referred to at [16].

As earlier noted, Mrs Bijas’s application concerning the alleged dependence of her husband was made under s 37(6) of the 1987 Act. That basis for entitlement was rejected by the Arbitrator, given that she was not persuaded that Mr Bijas had left his employment for the purpose of caring for his wife. The Arbitrator’s finding was that Mr Bijas was still, at relevant times, working and “had merely reduced his workload” (at [126] of Reasons).
Having rejected that aspect of the claim concerning dependency, the Arbitrator proceeded to consider the relevance of s 37(4), which had been relied upon by Mrs Bijas only after the issue of the Direction by the Arbitrator on 20 December 2010. Mrs Bijas succeeded with respect to this claim. It is the manner in which this aspect of the claim was adjudicated by the Arbitrator that has given rise to complaint on this appeal.
It seems to be the appellant’s primary complaint that the Arbitrator should not, as a matter of procedural fairness, have “assessed” entitlement concerning s 37(4) following the close of submissions and the conclusion of the hearing. This appears to be a complaint that the appellant had been denied a fair hearing. The question raised is whether, given the intervention of the Arbitrator, the appellant had been afforded the opportunity to present its case.
It is clear that, after adjournment of the proceedings following the close of submissions, the Arbitrator formed the view that the provisions of s 37(4) may be relevant to Mrs Bijas’s entitlement. I consider that it was proper, in the circumstances, that the Arbitrator brought that matter to the attention of the parties. Such an approach to the conduct of proceedings is consistent with those provisions of the 1998 Act concerning procedure before the Commission as found in s 354.
The Arbitrator described the procedure adopted by her following the issue of the Direction on 20 December 2010 between [128] and [133] of Reasons. I note the Arbitrator’s view, as expressed at [130], that her Direction made in December 2010 “was concerned with the question of whether Mr Bijas had become dependent on [Mrs Bijas] after the date of injury”. The Arbitrator’s making of the Direction was consistent with those matters stated by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at [88]:
“88 Provisions such as s 354 do not release the Commission from the obligation to apply rules of law in arriving at its decisions: see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 per Gleeson CJ and Handley JA. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49], speaking of s 420 of the Migration Act 1958 (Cth) which is in like terms to s 354, Gleeson CJ and McHugh J said:
‘49 [Such provisions] are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.’
89 Even before case management had become entrenched in the Australian legal system, Deane J (with whom Fisher J agreed) said in Sullivan v Department of Transport (1978) 20 ALR 323 at 342–343 of a provision substantially similar to s 354 (s 39 of the Administrative Appeals Tribunal Act 1975 (Cth)) that its objectives would ‘ordinarily be best achieved by a ready identification of the issues … in truth, in dispute between the parties’ and that ‘[c]ircumstances may … arise in which … a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case’.”
The Arbitrator, having properly brought the possible relevance of s 37(4) to the notice of the parties, was necessarily required to embark upon a close examination of the evidence concerning earnings both of Mr and Mrs Bijas. I am of the view that the appellant had not subsequently been afforded an opportunity to present its case and was thus deprived of a possible successful result. The appellant, in its supplementary submissions dated 9 March 2011, sought, in vain, to tender the group certificates and argued that “given [Mrs Bijas’s] pre-injury probable [sic] earnings were less than the statutory maximum, there was no entitlement to any further weekly payments”. I note in passing that this argument is advanced notwithstanding counsel’s apparent acceptance of the likely level of Mrs Bijas’s earnings recorded at T6.
The submission which I have just noted was the first occasion on which it was made reasonably clear by the appellant that it was its case that:
(a) Mrs Bijas’s pre-injury earnings were not sufficient to found an entitlement to weekly compensation payments at the maximum statutory rate, and
(b) any finding of dependency would thus not entitle Mrs Bijas to any additional weekly payment.
In the circumstances which I have attempted to summarise, the Arbitrator rejected the admission of the group certificates following a consideration of the inconsistent evidence as to relevant earnings of Mrs Bijas (between [135] and [138] of Reasons).
It is my view that, once the appellant’s submissions made on 9 March 2011 were put, the real nature of the dispute concerning entitlement, or otherwise, to additional payment for compensation in respect of dependency had been raised. This issue should, perhaps, have earlier been perceived by all concerned, given that the evidence as to payment of weekly compensation demonstrated that, at all relevant times, Mrs Bijas had been paid less than the maximum statutory rate.
The Arbitrator, at [151] of Reasons, recorded a “concession” by counsel for the appellant “that [Mrs Bijas] was being paid at the maximum statutory rate”. As I have earlier noted at [26] above, counsel had stated that such payments were made “at the statutory rate” (emphasis added). That statement was capable of implying either that the maximum rate had been paid or that the payment, being less than the maximum, was calculated in accordance with the statute. The appellant was not afforded an opportunity to address this ambiguity and other relevant matters.
The Arbitrator, following consideration of the evidence concerning Mr Bijas’s income at relevant times, proceeded to make a finding that he had, since 1 July 2009, “become mainly dependent on [Mrs Bijas] following her injury” (at [146] of Reasons). Having so found, the Arbitrator proceeded to consider “the appropriate weekly payment”.
The Arbitrator noted that a wages schedule had been filed by Mrs Bijas and that “the [appellant] failed to dispute the quantum of weekly compensation [sic] as provided in paragraph (b) of Rule 15.5”. A determination was then made that “the earnings as set out in [Mrs Bijas’s] wages schedule are deemed to be admitted”. The Arbitrator, without further consideration of economic matters, proceeded to quantify Mrs Bijas’s entitlement to weekly compensation as is found in the Certificate of Determination noted at [9] above.
I accept the appellant’s submission that “the Arbitrator’s findings and orders for the payment of weekly compensation have been made without adequate reasons or findings or analysis of residual earning capacity”. The form of the wages schedule which accompanied the Application to Resolve a Dispute filed by Mrs Bijas was, in my view, fundamentally flawed and did not constitute an adequate evidentiary basis for the Arbitrator’s findings concerning relevant earnings. It is clear that the drafter of that document had no proper appreciation of the nature of particulars which are required for there to be compliance with the then relevant Pt 15 r 15.5 of the Workers Compensation Rules 2010, which provided:
“15.5 Schedule of earnings
In proceedings in which the quantum of weekly compensation is or may be an issue and there is or may be a dispute in respect of the actual or probable earnings of a worker during any relevant period, the following provisions have effect unless the Commission otherwise orders:
(a)     the applicant must include in the application to resolve the dispute a schedule containing full particulars of those earnings, including where applicable details of the current weekly wage rate as defined in section 42 of the 1987 Act.
(b)     if a party wishes to dispute the accuracy of any matter in the schedule, the party must lodge and serve with the first document lodged and served by the party in the proceedings, in addition to any documents required under rule 10.3(1) to be lodged and served by the party, a schedule of the party’s allegations of the earnings,
(c)     a matter not disputed by a party as provided in paragraph (b) is deemed to be admitted by the party.”
The shortcomings of the wages schedule may be summarised as follows:
(a)     there is no notation of the relevant current weekly wage rate as is required by the rule; rather, there is a sum of $650 noted, which is particularised in a footnote to the schedule as being “CWE: Employed by [the appellant ] earning an average $650 per week”;
(b)     actual earnings, which are required by the rule, are not particularised. While other evidence suggests that Mrs Bijas has had no such earnings since November 2008, the schedule confusingly particularises the sum of $368.50, which is elaborated in a footnote as “See s 74 Notices concerning rate of benefit paid during these periods”;
(c)     a figure of $650 is provided in the schedule as being “comparable earnings” throughout the relevant period. It may be assumed that such sum is asserted as being Mrs Bijas’s probable earnings but for injury: s 40(2)(a) of the 1987 Act, and
(d)     the schedule particularises a figure of $281.50 as “difference”. That sum is plainly the arithmetic difference between the “comparable earnings” and the compensation benefits paid. That sum does not equate to the sum claimed as would be readily calculated had there been proper compliance with the rule.
While it is correct, as found by the Arbitrator, that the appellant had not filed a competing schedule and had thus not disputed the matters found in the wages schedule, I am of the view that the flaws and inadequacies of the schedule of wages appearing in the Application to Resolve a Dispute were such that it did not provide an evidentiary basis sufficient for the Arbitrator’s finding that relevant earnings had been “deemed admitted”. I have reached this conclusion having taken into account those matters put on behalf of Mrs Bijas in submissions opposing this appeal.

Ground four

The award entered in favour of Mrs Bijas from 1 October 2009 pursuant to s 40 of the 1987 Act is challenged by the appellant. Mrs Bijas in submissions does not dispute that the award pursuant to s 40 was made in the absence of “analysis or reasoning”. However, it is argued on her behalf that “there is no basis upon which section 40 could be applied in this case”. It is further submitted that references in Reasons and the Certificate of Determination to “section 40” were “typographical errors and should read ‘section 37’”.
It seems that Mrs Bijas suggests that a “slip” has been made by the Arbitrator when reference was made to “section 40”. The difficulty with this submission is that no step has been taken to ascertain whether such suggested slip has occurred or should be corrected. No application for reconsideration of the terms of the award has been made. The Commission on this appeal may not simply infer that such a slip has been made.
In the circumstances, the appellant’s argument challenging the Arbitrator’s reasoning concerning entry of an award pursuant to s 40 must be accepted. There has been no express finding made by the Arbitrator as to the extent of incapacity, whether total or partial, suffered by Mrs Bijas as a result of the injuries found proven. On the face of the Certificate of Determination, it appears that compensation from 1 October 2009 is to be paid in respect of partial incapacity. The Arbitrator’s Reasons do not address those matters which require determination in such a case as stated by the Court of Appeal in the decision of Mitchell v Central West Health Service (1997) 14 NSWCCR 526.
It may be seen that, while the appellant’s challenge to the Arbitrator’s finding concerning the occurrence of psychiatric injury has failed, it has been determined on appeal that errors have occurred concerning a failure to afford the appellant an opportunity to fully argue the question of dependency; the findings said to be founded upon the wage schedule, and with respect to the award made pursuant to s 40. For the reasons above stated, I conclude that the Arbitrator’s decision concerning Mr Bijas’s dependence upon Mrs Bijas, as well as her quantification of monetary entitlement to weekly compensation, have been affected by those errors.
While the Arbitrator’s findings concerning the issues of injury and entitlement to s 60 expenses must stand, it is necessary to decide whether the findings concerning dependency and quantum of weekly compensation should be examined on this appeal to determine any need for correction.
Having regard to the state of the evidence, particularly the evidence concerning relevant earnings of both Mr and Mrs Bijas, I conclude that a determination of the correctness of the Arbitrator’s findings may only be made following a new hearing. Such new hearing on appeal is expressly excluded: s 352(5) of the 1998 Act.
In the circumstances, I consider it appropriate that the Arbitrator’s findings and orders concerning dependency of Mr Bijas and quantum of the award of weekly compensation are each revoked on this appeal. The matter should be remitted to Arbitrator Rimmer for determination afresh of those matters. Appropriate orders appear below.
To facilitate a just determination of the matters remaining in dispute, the Arbitrator should afford the parties an opportunity to adduce any further evidence that they consider relevant, and an opportunity to make further submissions. An appropriate direction is made below.
I note in passing that a great many of the arguments put on behalf of the appellant on this appeal were of little assistance in resolving the issues which required determination. Much of the argument went, not to suggested error, but to the merits of Mrs Bijas’s claim generally. Those arguments should properly have been advanced following the Arbitrator’s direction made in December 2010.

DECISION

The Arbitrator’s finding that Mrs Bijas received psychiatric injury arising out of or in the course of employment is confirmed.
Paragraphs 1, 4, 5, 6 and 7 of the Certificate of Determination dated 12 April 2011 are confirmed.
Paragraphs 2 and 3 of the Certificate of Determination dated 12 April 2011 are revoked.
The matter is remitted to Arbitrator Rimmer for redetermination of the dispute as to dependency and as to quantum of entitlement to weekly compensation.
The Arbitrator is directed to invite the parties to tender any additional evidence they may seek to adduce and to furnish any further submissions concerning the outstanding issues requiring determination.

COSTS

The appellant has failed in its challenge to the Arbitrator’s finding concerning the occurrence of injury. In the circumstances, and in the exercise of discretion granted by s 341 of the 1998 Act, the appellant is to pay Mrs Bijas’s costs of this appeal.

Kevin O'Grady

Deputy President
24 August 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE