Eureka Operations Pty Ltd v Lewis
[2007] NSWWCCPD 143
•18 June 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Eureka Operations Pty Limited v Lewis [2007] NSWWCCPD 143
APPELLANT: Eureka Operations Pty Limited
RESPONDENT: Anne Lewis
INSURER:Coles Group Limited
FILE NUMBER: WCC14312-06
DATE OF ARBITRATOR’S DECISION: 18 December 2006
DATE OF APPEAL DECISION: 18 June 2007
SUBJECT MATTER OF DECISION: Psychological injury; finding of total incapacity; weight of evidence; application of Sections 4, 9A and 11A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Lander & Rogers
Respondent: Napier Keen
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 18
December 2006 is confirmed.
2.The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 16 January 2007, Eureka Operations Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’)
The document was initially rejected by the Registry for failure to comply with Rule 16.2(1) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’). The application was resubmitted with appropriate submissions and accepted by the Commission on 19 January 2007.
The Respondent to the appeal is Anne Lewis (‘the Respondent’).
The Respondent was born on 15 June 1953. She commenced employment with the Appellant in about 2004 however, she was employed by the Respondent’s predecessors since about 1994. She was employed as either a manager or second in charge manager at various service stations, and since about 2004, those known as “Coles Express”.
When the Respondent initially commenced employment in around 1994, her hours of work were from 6:00am until 2:00pm Monday to Friday. Subsequently they changed from 6:00am to 12:00pm and then from 8:00am to 4:00pm. The Appellant took over the operation around Christmas 2004, and the Respondent apparently remained on her usual hours. In June 2005, the Respondent moved to the Appellant’s Baulkham Hills premises. In about December 2005, the Respondent (together with other staff) was advised by the Appellant that there were to be changes in shifts and locations commencing in 2006. The Respondent claimed that on 25 January 2006, she was notified that the new roster had been set in place. On viewing the roster, she learned that she would be working three out of five shifts concluding at 10:00pm or 11:00pm, and that her hours had been reduced from 40 to 38 hours per week.
The Respondent claimed that she was concerned for her safety in needing to close up late at night and that, as a consequence of her employer’s actions in altering the roster, she developed a reactive anxiety/depressive/adjustment disorder, and was incapacitated for work.
The Respondent made a claim for compensation on the Appellant’s insurer, Coles Group Limited (‘Coles’). By letter dated 17 March 2006, Coles denied liability on the basis that, pursuant to the provisions of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) “… the actions of Eureka Operations with respect to the proposed transfer to another site within Eureka Operations and roster changes was reasonable.”
It was proposed that the Respondent would be relocated to the Appellant’s Ryde premises.
On 7 September 2006, the Respondent filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation and medical expenses pursuant to the provisions of the 1987 Act.
The parties attended a conciliation/arbitration hearing on 5 December 2006. On 18 December 2006, a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $663.46 from 30 January 2006 to 29 July 2006 under s.36 of the Workers Compensation Act 1987, with the Respondent entitled to credit for payments as sick leave.
2.That the Respondent pay the Applicant weekly compensation at the statutory rate for a worker without dependents from 30 July 2006 to date under s.37 of the Workers Compensation Act 1987, such weekly payments to continue in accordance with provisions of the Act.
3.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts, including any HIC charge for that the Respondent pay the Applicant’s costs as agreed or assessed.”
It is from this decision the Appellant now seeks leave to appeal.
On 6 March 2007, the Respondent filed a ‘Notice of Opposition to Appeal’. In brief, the Respondent submits that no errors were made by the Arbitrator, and that the appeal should be dismissed.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act however, the appeal was allegedly filed out of time contrary to section 352(4) of the 1998 Act.
Unfortunately, the Registry appears to have overlooked the number of days in December and January excluded, for compliance purposes, by public holidays. The initial appeal was in fact filed in time in compliance with section 352(4), and leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of 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.”
Both parties submit that the matter is suitable for a determination ‘on the papers’.
Both parties have prepared detailed submissions on appeal. Having regard to Practice Directions numbers 1 and 6, and all the documents that are before me, including the transcript, 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.
THE ISSUES IN DISPUTE
The Appellant has cited eight grounds of appeal as follows:
“1.The Commission erred in law in respect of the finding that the Applicant was totally incapacitated from 30 January 2006 to date and continuing.
2.The admission of the clinical notes of the Applicant’s treating general practitioner, Dr J Than-Trong, without prior notice that these documents were to be relied upon by the Applicant, was procedurally unfair and constitutes an error of law.
3.The finding that the Respondent’s actions were unreasonable is not supported by the evidence, is against the weight of the factual evidence and is arrived upon following consideration of matters that were not supported factually by the evidence.
4.In considering the Applicant’s capacity for work, the Commission failed to take into consideration the weight of the evidence that the Applicant was capable of performing the work she was performing prior to the injury.
5.In deciding the issue of incapacity, the Commission failed to take into account the medical evidence that the Applicant’s condition had improved.
6.The finding that the Applicant had suffered psychological injury is flawed in that the medical opinions were accepted despite there being no evidence of clinical examination of the Applicant.
7.The Commission erred in respect of accepting the opinions of Dr Chaudhary and Kerry Geddens as to causation.
8.Irrelevant factors were taken into account when determining the question of incapacity.”
In essence, there are four principal issues the subject of complaint by the Appellant namely:
·Injury and causation
·Procedural fairness
·Section 11A of the 1987 Act
·Incapacity
THE REVIEW PROCESS
Section 352 of the 1998 Act makes provisions for an appeal to a Presidential Member from a decision of an Arbitrator. As Deputy President Byron said in The King Island Company Limited v Deery [2005] NSWWCCPD 1 [at 19]:
“A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Spurway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
I have had regard to these principles in considering the appeal before me.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Injury’ and ‘Causation’ Issue
In essence, the Appellant submits that there was insufficient or inadequate evidence for the Arbitrator to determine that the Respondent had suffered a psychological injury. In addition, the Appellant submits that the Respondent “… was undergoing other significant stressors at the time of the alleged work injury”, and that those matters were not reported to either Dr Chaudhary, the Respondent’s treating psychiatrist, or to Ms Kerry Geddens, Psychologist, who assessed the Respondent at the request of the Appellant in March 2006.
Lengthy submissions were made by the Appellant’s counsel to the Arbitrator to the effect that neither of these practitioners conducted a “clinical examination” such that there was insufficient evidence to establish psychological injury. It was the Appellant’s assertion that the symptoms complained of by the Respondent were merely an “emotional response” to workplace changes proposed by the Appellant.
The Appellant made reference to the decisions of Stewart v NSW Police Force [1998] 17 NSWCCR 202 (‘Stewart’) and Hunt v NSW Department of Education & Training [2003] 24 NSWCCR 642 (‘Hunt’).
In Stewart, Neilson J as he then was quoted extensively from his earlier decision of Kirby v Trustees of the Society of St Vincent De Paul (NSW) NSWCC, No. 20708/94, 11 April 1997, unreported. His Honour said (paragraph 6):
“To succeed in this court, the applicant must prove that the conduct complained of constituted ‘injury’ within the meaning of the Act. Where, as here, a psychiatric injury is alleged the Applicant must prove either:
(i)That the nervous system was so affected that a physiological effect was induced, not a mere emotional impulse …
…
Frustration and emotional upset do not constitute injury … nor, … a mere ‘anxiety state’ …. a ‘straight litigation neurosis’ is not compensable; … a misperception of actual events, due to the irrational thinking of the worker leading to a psychiatric illness is not compensable …
It follows that subsequent rationalisation of earlier innocuous events, which rationalisation leads to psychiatric illness is also not compensable. Furthermore, once the applicant has established ‘injury’ she must prove that an incapacity for work resulted therefrom.”
Burke J as he then was in Bhatia v State Rail Authority (NSW) (1997) 14 NSWCCR 568 provided a detailed analysis of what constitutes psychological injury, distinguished from ‘emotional impulse’. He considered whether, for there to be a psychological injury, there must be a physiological consequence. He noted that the present section 11A of the 1987 Act “… appears to deal exclusively with an injury that it is psychological and certainly not manifested physically”. His Honour considered a number of authorities on the issue concluding as follows:
“All the Act is concerned with is injury to a worker. A worker is what he is. He is both mind and matter which function as one integrated, symbiotic entity – as a single organism. Whether it is either or both of the perceived elements that is injured is really immaterial. The ultimate question is, has the worker received injury? Has the human organism which is the worker become dysfunctional?”
At the hearing before the Arbitrator, the Appellant submitted that since neither Ms Geddens nor Dr Chaudhary undertook a “clinical examination” of the Respondent, and arrived at their diagnosis based solely on the symptoms and conditions reported by the Respondent, that was insufficient to establish psychological injury.
This issue was dealt with by the Arbitrator at paragraphs 26 – 31 of his ‘Statement of Reasons’, summarised as follows:
“26. … The notes indicate that the Applicant was suffering more than a mere emotional impulse. A psychological effect or change arising out of the change night shifts is recorded from 30/1/06 … ‘stressed’, ‘not sleeping’, ‘anxious’, ‘teary’, ‘palpitations at night’, ‘difficulty coping’ and ‘depressed mood’. See Anderson Meat Packaging Company Pty Limited v Giacomantonio [1973] WCR (NSW) 3 and Austin v Director General of Education (1994) 10NSWCCR 373.
27.Whilst there may have been other surrounding factors at the time, the failure to mention them to Ms Geddens nor Dr Chaudhary is, in my opinion, unlikely to have influenced the opinions they separately reached. It is clear that they considered the fear of a late night shift to be a substantial
contributing factor to the injury and it is irrelevant if there were other substantial contributing factors: Mercer v ANZ Banking Group Limited [2000] NSWCA 138. In any case, Ms Geddens was aware of the performance and absentee issues as she refers to the statements of Mr Slunjski and Ms Ross. Dr Chaudhary says he was also aware of work difficulties.
28. I agree that the reports of Dr Chaudhary are somewhat abbreviated and his
diagnosis in his longer report of 19/6/06, is based on a ‘clinical presentation’ that he does not describe. However, coupled with the report of Ms Geddens, I believe there is sufficient evidence that the Applicant suffered a psychological injury within the meaning of s.4 of the 1987 Act. Ms Geddens’ opinion is stated to be based on the Applicant’s report of symptoms but I note also that she says: ‘The symptoms of psychological distress she exhibited during the session and reported are congruent with the diagnosis (my emphasis).
29. If the Respondent’s submission is that appropriate psychometric testing should have been performed before either diagnosis was arrived at, I note
that in para 11.7 of the WorkCover Guides for the Evaluation of Permanent Impairment … such testing is merely identified as ‘useful information’ in the assessment of psychological impairment. We are here concerned with whether a psychological injury was suffered … and for that I consider reliance can be placed on the professional expertise and experience of both Dr Chaudhary and Ms Geddens.
30. The Respondent has not adduced other medical evidence to support its
contentions. The Applicant was examined by the Respondent’s psychiatrist, Dr Akkermann in October 2006 … His report has not been put in evidence … It raised the inference that his report does not assist the Respondent in its submissions.
31. Regardless, based on the reports of Dr Chaudhary and Ms Geddens and the
clinical notes of Dr Than-Trong, I am satisfied on the balance of probabilities that the Applicant did suffer a psychological injury arising out of or in the course of employment with the Respondent and such employment was a substantial contributing factor.”
It is clear from the authorities to which both the Arbitrator and I have referred, that the symptoms described by the Respondent, if accepted, were sufficient to ground a finding of psychological injury.
As to the other “significant stressors” to which the Appellant refers, I have examined the clinical notes in detail and, although not particularly legible, I have been unable to identify any notation that would indicate other “stressors” occurring in the Respondent’s life around the time of the claimed injury. As to the Appellant’s reference in its submissions to the Arbitrator as to problems with the Appellant’s “relationship”, there is a notation “problem in relationship” in the clinical notes on 22 September 2006, some considerable time after the claimed injury, and documented in the context of other symptoms of a psychological nature.
Thus, there appears no proper foundation for the Appellant’s assertion in its submissions that “the clinical notes of the worker’s treating doctor indicated the worker was undergoing other significant stressors at the time of the alleged work injury.”
The Appellant had however made submissions before the Arbitrator to the effect that its evidence (particularly statements from Mr Slunjski and Ms Ross to which I will refer later) demonstrated that the Respondent had some “performance issues”, absentee issues and difficulties with a fellow worker which may have had some impact on her condition.
Ultimately however, I concur with the Arbitrator’s conclusion that the failure of the Respondent to mention some of these matters either to Ms Geddens’ or Dr Chaudhary was unlikely to have influenced their opinions. The entire thrust of the Respondent’s case was that the proposed change in shifts to night work caused her considerable fear and concern leading to ‘injury’ diagnosed by Dr Chaudhary as “reactive anxiety condition” and “reactive depression” and by Ms Geddens as “ adjustment disorder with anxiety, as identified by the Diagnostic and Statistic Manual of Mental Disorders, 4th Edition … DSM – I4 – TR.”
Ms Geddens concluded:
“Congruent with the criteria for this diagnosis, Ms Lewis developed the anxiety
symptoms in response to a perceived stressor, namely the change in shifts and later the transfer to the North Ryde store. It appeared the symptoms were clinically significant as they caused significant impairment to her occupational functioning resulting in her inability to attend work.
The symptoms of psychological distress she exhibited during the session and reported are congruent with the diagnosis.”
It is worth noting Ms Geddens’ view that:
“There were no obvious personal difficulties that would have contributed to the psychological injury.”
In summary then, in my view there was sufficient evidence for the Arbitrator to conclude that the Respondent suffered a psychological injury to which her employment was a substantial contributing factor. This is particularly so since the report of Ms Geddens, curiously now challenged by the Appellant on appeal, was the only medical evidence put before the Arbitrator by the Appellant.
Consequently, I am not persuaded that this ground of appeal is made out.
The ‘Procedural Fairness’ Issue
The Appellant submits that the Arbitrator’s decision to admit the clinical notes of the Respondent’s general practitioner, Dr Than-Trong “… without prior notice that these documents were to be relied upon by the Applicant, was procedurally unfair and constitutes an error of law.”
The Appellant claims that:
“The worker gave no notice that she intended to rely upon the clinical notes … and an application to admit those documents was made by the worker’s representative only after the Employer’s submissions on the evidence had commenced. It is submitted that the admission of the material significantly prejudiced the Employer in that the material, which contained references to the Worker’s condition having ‘improved’ and the complaints made by the worker to the medical practitioner may have caused the medical opinions as to causation and incapacity to differ had the material been made available for their comment.”
The clinical notes were obtained as a result of a direction for production issued by the Appellant. It is clear from the transcript (page 14) that the Appellant had a copy of the notes at the time of the hearing.
It is true that the Respondent’s counsel sought to tender the notes during the course of his submissions. This was not in my view an entirely appropriate method by which to introduce the material, particularly since the transcript records at the outset both parties sought to introduce a considerable amount of ‘late’ material.
Nevertheless, given the principles of procedure before the Commission as set out in section 354 of the 1998 Act, in particular, the ability of the Commission to inform itself on any matter in such manner as the Commission thinks appropriate, it was open to the Arbitrator to admit those notes.
Counsel for the Appellant objected to this course of action set out at pages 13 and 14 of the transcript. After considering the parties’ submissions, the Arbitrator stated as follows (page 14):
“I am going to admit this evidence. The Applicant did reserve the right to file documents that were produced, and that’s in 5.2 of the ARD. Its material that’s
been available to the Respondent and it is material that has been taken into account prior to the submissions that were made. The Applicant has made an issue about whether there is evidence of the injury. The nature of that issue is very briefly disclosed in the reply as simply ‘injury’. The word ‘injury’ is used. It would go against natural justice for these clinical notes not to be introduced and, accordingly, in accordance with the new rule, I admit these documents in the interest of justice.”
Having admitted the clinical notes, the Arbitrator allowed the parties time to consider them and then concluded at page 15 of the transcript as follows:
“… Under the new rules the relevant rule is rule 10.3 sub-rule (3), and it provides that:
‘The Commission may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would otherwise be prevented from introducing because of the operation of sub-rule (2).’
Sub-rule (2), of course, applies to the new system, but it also applies to documents
filed before 1 November. So I was satisfied that it was in the interests of justice for clinical notes to be introduced. I also acknowledge that Counsel for the Respondent should not be put at a disadvantage … and will have a right of reply …”
Counsel for the Appellant was then invited to make further submissions on the notes which are set out at pages 35 – 37 of the transcript.
In the circumstances, I cannot see what prejudice the Appellant claims it has suffered. The medical opinions from Dr Chaudhary and Ms Geddens were formulated as a consequence of independent examination. It is difficult to see how entries in the clinical notes may have altered those opinions. It was not really in dispute between the parties, particularly given the report of Ms Geddens, that the Respondent suffered an anxiety or depressive condition. The real issue in dispute was the impact of Section 11A on the Respondent’s claim.
In addition, it is noted that Ms Geddens’ report dated 3 March 2006, was prepared following consultation with the Respondent on 24 February 2006, less than a month after the Respondent first consulted Dr Than-Trong on 30 January 2006. An entry on 11 February 2006 appears to refer to some improvement in a prior complaint of back pain. References to some “improvement” in her psychological state do not appear until after consultation with Ms Geddens. The entry on 15 February 2006 makes reference, inter alia, to “anxious” and “poor sleep”.
In all these circumstances, I cannot see any denial of ‘procedural fairness’ to the Appellant. The Appellant was given an opportunity to make submissions on the material which was clearly logical, probative, and relevant to the facts in issue in line with Rule 15.2 of the 2006 Rules. The Arbitrator’s exercise of his discretion to admit the material was consistent with the objectives and procedures of the Commission, and appropriate in the circumstances of this particular case.
The Section 11A Issue
Section 11A of the 1987 Act states as follows:
“11A (1) No compensation is payable under this Act in respect of an injury
that is a psychological injury if the injury was wholly or predominately caused by a reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3) A ‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder …”
The Appellant submits that a number of inferences drawn by the Arbitrator in arriving at the conclusion that the Appellant had acted unreasonably were
“… not founded on fact and it was not open to the Commission to draw such
inferences. On that basis therefore, it is the Employer’s submission that the finding of unreasonableness on the part of the Employer is flawed.”
The determination as to whether an employer’s actions are reasonable pursuant to section 11A is a question of fact. As Walker J as he then was said in Buxton v Bi-Lo Pty Limited (1998) 16 NSWCCR 234, referring at length to the decision of Burke J in Melder v Ausbowl Pty Limited (1997) 15 NSWCCR 454: “What would a reasonable observer think about all this?”
This was the approach adopted by Armitage J as he then was in Ritchie v Department of Community Services (1998) 16 NSWCCR 727 where he said, quoting from Geraghty J in Irwin v Director-General of School Education (unreported 18 June 1998) as follows:
“44.In relation to ‘reasonableness’, his Honour said at 10 (and I respectfully agree with him):
The question of reasonableness and its test has not yet been addressed in this Court since it is only a recently amended provision of the legislation. It has been considered in the Commonwealth legislation … There have been a number of cases which have considered very similar or if not exactly the same provisions in the Commonwealth.
The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of “reasonableness” is objective and must weight the rights of employees against the objective of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
This issue was considered at length and in considerable detail by the Arbitrator at paragraphs 33 to 45 of his ‘Statement of Reasons’. Although not conceded by the Appellant, the evidence, particularly Ms Geddens’ report, supported the finding that the predominant cause of the Respondent’s psychiatric condition was the action by the Appellant to alter her shifts. What was principally in issue was whether those actions by the employer were reasonable in the context of the relevant legislation.
The Arbitrator noted that the onus of proof under Section 11A lay with the Appellant (see Department of Education & Training v Jeffrey Sinclair [2004] NSWWCCPD 90), stating as follows (paragraph 42):
“In [Sinclair], it was held that ‘the statutory test could not be satisfied merely by identifying two respects in which the (employer’s) conduct was reasonable. It remained necessary to determine whether, notwithstanding those blemishes in the decision-making process, ‘reasonable action’ was the sole or predominant cause’. Whilst this case related to the predecessor of the current s.11A, the above quote is still relevant to s.11A as it now is. In my opinion, it is encumbent on the Respondent to establish on the balance of probabilities that the injury was wholly or predominately caused by its reasonable action.”
The Arbitrator made the following observations:
“35. It was not disputed that the change in rosters and the subsequent proposed transfer to North Ryde Service Station on the same roster was a ‘transfer’ within the meaning of s.11A …
36. It seemed common ground that the only issue in regard to transfer (that
wholly or predominantly caused the psychological injury) was the requirement to work night shifts and to lock up alone the station at Baulkham Hills (and subsequently at North Ryde), and not the change in shifts nor the transfer to North Ryde per se. If my understanding is not correct, I find on the basis of the Applicant’s statements, the clinical notes of Dr Than-Trong, and the histories taken Ms Geddens and Dr Chaudhary, that on the balance of probabilities the Applicant’s psychological injury was wholly or predominantly caused by the actions of the Respondent concerning the Applicant’s transfer, namely the roster changes which required the Applicant to work nightshifts and to lock up alone the service stations …”.
The Arbitrator then went on to document each parties’ submissions as to the reasonableness or otherwise of the Appellant’s actions before concluding (paragraph 39) that “… there were management failures by Mr Slunjski and Ms Ross in the manner of communication of this fundamental change in the Applicant’s roster …”
The Arbitrator then set out in some detail relevant extracts from the statements made by Ivan Slunjski, Area Manager of the Appellant, and Ms Cathy Ross, Store Manager of the Baulkham Hills Service Station.
After considering this material, the Arbitrator concluded that “management failures” by Mr Slunjski and Ms Ross “… led, I believe, to the unreasonable manner in which the roster changes were communicated”. The Arbitrator concluded at paragraph 40:
“The clear failures by Mr Slunjski and Ms Ross in properly and adequately
communicating the transfer decision, fall, in my opinion, squarely with the principles enunciated in Manly Pacific and in Pirie above concerning the circumstances in which a decision on transfer is communicated.”
The Arbitrator had referred at length to the decision of the Court of Appeal in Manly Pacific International Hotel Pty Limited v Doyle [1999] NSWCA 465 (‘Manly Pacific’) and to the decision of Neilson J as he then was in Pirie v Franklins Limited [2001] 22 NSWCCR 346 (‘Pirie’).
In Manly Pacific, Fitzgerald JA, with whom Mason P agreed said (paragraph 6):
“In my opinion, the act of transfer of a worker by an employer, i.e., the
communication of a decision to transfer (or a proposal to transfer) the worker, is an "action taken or proposed to be taken by or on behalf of the employer with respect to transfer ..." of the worker within the meaning of subs 11A(1). The worker is entitled to be compensated for psychological injury caused or predominantly caused by the communication of a decision or proposal to transfer him or her where the decision or proposal or the manner in which the decision or proposal is communicated were unreasonable.”
His Honour said further at paragraph 8:
“It was an action taken by the appellant with respect to the transfer of Mr Doyle,
namely, the transfer of him from one position to another, which caused him to work in "the circumstances ... which ... were the predominant cause of his breakdown". That being so, the appellant's material action, the transfer of Mr Doyle, cannot be automatically excluded as the whole or predominant cause of Mr Doyle's psychological injury. Whether or not the appellant's transfer of Mr Doyle was the whole or predominant cause of his psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced Mr Doyle's condition.”
In other words, the manner and means of the communication of the decision or proposal to transfer a worker must be reasonable, as well as the decision or proposal itself.
In Pirie, Neilson J made the following observations:
“46.This area of the law is not without some judicial exegesis. The first case to which I have been referred is that decision of his Honour Judge Burke in Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454. At 458 his Honour said this:
In a real sense no action can be divorced from the way in which it is performed. The manner of its doing is part of the action. The action is not merely its end result. The action is what takes place to achieve that result. An action is fairly synonymous with a deed. A `good deed' need not be an instantaneous action. I can help a blind man across a street. It doesn't take long but encompasses a short social interchange as well as the actual guidance. I can have my Alzheimer-affected acquaintance home to a meal. The action or deed takes rather longer but it too includes the whole of the transaction. Similarly, I would think that the action of transferring, demoting, promoting or discharging an employee would encompass the whole of the transaction between the employer and the employee. But it is the action of transferring or whatever, not the whole history of the relationship between the parties nor the subsequent developments that is relevant. What went before or after may be a guide to the reasonableness of the particular action but is not part of it.
48.The next case to which I was referred is that of my colleague Judge Armitage in Ritchie v The Department of Community Services (1998) 16 NSWCCR 727. In that case his Honour was impressed by the reasoning of his Honour Judge Geraghty in Irwin v The Director General of School Education (unreported, 18 June 1998, matter number 14068 of 1997). His Honour there adopted what fell from his Honour Judge Geraghty in Irwin's case that under the current version of s 11A the onus falls upon the employer to prove that the action that it took in respect of the retrenchment of Mr Pirie was reasonable. His Honour Judge Armitage continued at [44]:
In relation to `reasonableness', his Honour said at 10 (and I respectfully agree with him):
The question of reasonableness is a test that has not yet been addressed in this Court since it is only a recently amended provision of the legislation. It has been considered in the Commonwealth legislation of [sic] Employer's Rehabilitation and Compensation Act 1998 and particularly s 4(1). There have been a number of cases which have considered very similar or if not exactly the same provisions in the Commonwealth.
The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of `reasonableness' is objective and must weight the rights of employees against the objective of the employment. Whether an action is reasonable should be attended, in all the circumstances by questions of fairness.
Armitage J at [45] went on to consider the cases decided under the Commonwealth legislation that were referred to so succinctly by Geraghty J in Irwin's case.
49. The final decision to which I have been referred and of which I must take note is a decision of the Court of Appeal in Manly Pacific International Hotel Pty Ltd v Doyle (1999) 19 NSWCCR181. In that case Fitzgerald JA with whom Mason P concurred said at [27]:
The criterion of s 11A(1) par (b) is `reasonable action taken ... by or on behalf of the employer' the words, "with respect to," are of a wide application, transferred demotion, promotion, et cetera, may be the subject of the action or proposed action taken by or on behalf of the employer or matters with respect to which the action or proposed action is connected or may themselves constitute the action or a part of the action. However, the provision does not speak of an injury caused by the transfer, demotion, promotion, et cetera of a worker but an injury caused by the action taken or proposed to be taken by or on behalf of the employer with the respect to such a matter. The words `performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers' all clearly refer to matters other than the performance by the worker of his duties. The paragraph is thus looking to the worker's response to the employer's action or proposed action not to the worker's response to the employment conditions encountered after a transfer, demotion, promotion, et cetera. Senior counsel for Mr Doyle put the matter well when he submitted that the section was looking to the process of transfer, demotion, promotion, et cetera, rather than those acts per se.”
Mr Slunjski prepared a number of statements, the most detailed of which was that dated 9 November 2006. In that statement, he made a number of references to matters reported by Ms Ross as to apparent breaches of company policy by the Respondent in the six months or so prior to her injury. Mr Slunjski stated (paragraph 23) that he informed the Respondent in late November or early December 2005 of the proposal to rotate “… the 2IC’s in my area around the stores in the New Year (2006). Baulkham Hills was going from non 24 hour trading to 24 hour trading … I informed Anne of the rotations.”
Mr Slunjski went on at paragraph 24:
“I spoke to Anne on 10 January 2006 about some absences over the Christmas period … I again informed Anne of [sic] the changing rosters would come into effect at the end of January. I told Anne she was free to change areas or look at other employment opportunity’s [sic] within Coles Myer.”
In relation to those statements, the Arbitrator said (paragraph 39) “This latter statement indicates a prior knowledge that the roster changes were unlikely to be favourable to the Applicant” and that “there is a clear inference in his statement that he had full knowledge of the significance the roster changes would be to the Applicant.”
In my view, this was an entirely appropriate inference to draw from Mr Slunjski’s statement, particularly when taken with the statement made by Ms Geddens in her report of 3 March 2006 that:
“During December and January Mr Slunjski had spoken to Ms Lewis about the changes to rosters, timetables and stores. He had said in the next two to three months there would be considerable changes to the stores.”
The Arbitrator stated (paragraph 39):
“Yet not only did Mr Slunjski elect to take holidays at this time of considerable
change (changes affecting others, not just the Applicant) but he failed to discuss the actual changes with the Applicant before doing so. He says in that statement on page 5 that he understood the roster changes ‘had been up for four or five days when Ms Ross told Ms Lewis prior to leaving work on 24 January 2006, to check it’. Having such knowledge about a week prior to the Applicant learning of it, suggests there was ample time to have discussed with the Applicant these fundamental changes in working hours … His unavailability in the days following the communication of the roster changes, coupled with the lost opportunity to allay the Applicant’s fears by talking with her, led directly, I believe, to the injury that was suffered. A general indication of the fact and timing of changes some fourteen days earlier hardly discharged Mr Slunjski’s responsibilities in relation to roster changes that he knew or ought to have known could have a negative impact on the Applicant unless managed …”
This was an accurate summation of the statement of Mr Slunjski, and the Arbitrator’s conclusions and inferences drawn in relation to it were appropriate and consistent with that material.
The Appellant has also challenged an ‘inference’ drawn by the Arbitrator in relation to the evidence of Ms Ross. The Arbitrator dealt with this evidence at paragraph 39.2 as follows:
“As manager of Baulkham Hills Service Station, Ms Ross had the responsibility of
managing her staff, including changes to rosters. She prepared the new rosters and had full knowledge of the proposed changes. Her actions of merely drawing the Applicant’s attention to the existence of the roster changes, when she knew or ought to have known that rostering the Applicant to work late in the evening was a significant change to her previous work pattern … suggests avoidance behaviour in relation to what was likely to be a difficult situation to manage. It was her responsibility to discuss such a fundamental change with the Applicant. Had she done , she would have learned of the Applicant’s concerns and possibly sought to change them (as she said to Ms Geddens), so avoiding injury. Further, when the Applicant’s absence became extended, there is no evidence before me that Ms Ross sought out the Applicant to understand what were the reasons behind such absence. There is simply evidence from the Applicant and Ms Ross that the transfer to North Ryde was discussed on 7 February 2006. Ms Ross says she cannot recall what the Applicant told her during this call and that the Applicant never told her she would have been worried about closing up late at night. The inference is that Ms Ross did not ask as she did not want to know”.
In her statement dated 13 November 2006, Ms Ross said as follows:
“19. In general, Anne’s performance at work was not up to the standard of a 2IC or someone of her experience.
…
23. On 25 January 2006, the shifts were posted for the beginning of February
2006 … I informed Anne of the new roster. She went into the office to look at her shifts before going home. Anne left the store in her normal manner and without mentioning anything to me about the roster. This was the last day Anne came to work.
…
32.Anne never told me she would have been worried about closing up late at night.
…
35. Ivan [Slunjski] had told me in February 2006 Anne was to be transferred to the North Ryde store. I think I told Anne on 7 February 2006 that she would be rotated to North Ryde. I don’t remember what Anne told me during this phone call.”
I am inclined to agree with the Appellant’s submission that the ‘inference’ drawn by the Arbitrator, that Ms Ross “did not ask as she did not want to know” was not open to him on the evidence before him however, his primary findings as to the principal issue in dispute between the parties, namely, the reasonableness or otherwise of the Appellant’s actions, are in accordance with the evidence. It is clear from the statement of Ms Ross that she did not seek to discuss the planned changes with the Respondent nor did she appear to make any enquiry as to the reasons for the Respondent’s absence from work from 25 January 2006 other than to state (paragraph 34) “After the 25 January 2006 Anne had a lot of sick leave.”
Thus, whilst the Arbitrator’s ‘inference’ was perhaps inappropriate, his substantive findings were valid.
The Appellant also takes issue with the Arbitrator’s statement at paragraph 38.5 of his ‘Statement of Reasons’ that:
“The Respondent’s evidence concerning the performance failures of the Applicant suggests that the roster changes were designed to put the Applicant off work.”
However, it is clear that this statement was made in the context of submissions made by “counsel for the Applicant” commencing at paragraph 38. The Arbitrator set out five primary submissions made by the Respondent’s counsel. That was indeed the substance of submissions made by the Respondent’s counsel at the hearing (see pages 25 – 30 of the transcript).
Thus, taken in context, that statement was not an ‘inference’ drawn by the Arbitrator: it was merely a summation of the Respondent’s submissions, and does not appear to have played any part in the Arbitrator’s substantive determination.
In summary then, the Arbitrator’s determination that the Appellant’s actions in relation to the proposed roster changes were unreasonable was consistent with the totality of the evidence and in line with the authorities to which I have referred. In short, the absence of any discussions with the Respondent as to the proposed changes and her clearly stated fears about working at night constituted unreasonable behaviour in the manner of communication of the proposed changes very much in line with the decision of Pirie to which I have referred.
The Incapacity Issue
The Arbitrator determined that the Respondent was totally incapacitated from 30 January 2006 to date and continuing. The Appellant submits that that finding was contrary to the whole of the evidence, in particular, the Respondent’s own evidence as to capacity including her ability to work pre-injury duties with the Appellant, and evidence as to the Respondent’s gradual ‘improvement’ over a period of time. Further, the Appellant submits that the Arbitrator considered “irrelevant factors” in determining the issue of incapacity in particular, the lack of existence of any injury management plan.
These issues were considered by the Arbitrator at paragraphs 46 to 52 of his ‘Statement of Reasons’. The Arbitrator noted that Dr Than-Trong had certified the Respondent totally unfit for employment from 30 January 2006 through to 30 November 2006. Dr Than-Trong had recommended counselling but, as the Arbitrator stated (paragraph 46) “There has been no counselling as the Respondent denied liability on 17/3/06”.
As to Ms Geddens’ opinion, the Arbitrator said this (paragraph 47):
“This denial was based on Ms Geddens’ opinion that the psychological injury was
caused by the reasonable actions of the Respondent, a legal opinion that I consider she is not qualified to give. She is, however, qualified to express an opinion on the Applicant’s capacity for work and I quote from her report:
‘It is difficult to see Ms Lewis returning to work on the shift she has been
allocated. She does appear to have a strong fear of being in the work place on her own late at night. It is unlikely that she will be able to return to the work place under these conditions. Ms Lewis has indicated an interest in the training and second in charge … in the other area and stated she was unable to attend the interview because of her symptoms of distress’.”
The Arbitrator noted Dr Chaudhary’s opinion that “She has not lost the ability to work and her disability is of a temporary nature and should resolve once the situation at work improves or the employer accepts her request to give her a daytime shift.”
The Arbitrator noted that neither of those situations had occurred and that:
“… The Applicant has been unable to return to work because of the lack of
existence of an injury management plan … this plan is not dependent on there being a compensable injury nor the provision of a WorkCover Certificate for fitness for suitable duties. Such a plan will be necessary if the Applicant is to get back to day time work.”
The Arbitrator noted that:
“It seems common ground that the Applicant could work in other capacities if night work was not involved … In any case, the Applicant is still employed by the Respondent and, as the Applicant’s counsel submitted, it is disingenuous for the Respondent to submit that the Applicant can work in a variety of day jobs when it is has not offered her one itself.”
The Arbitrator concluded “I do not consider the comment of Dr Chaudhary as evidence of such capacity as the Applicant’s ability to work seems dependant on an improvement in her psychological condition.” Accordingly, the Arbitrator decided that, on the balance of probabilities, the Respondent had been totally incapacitated since 30 January 2006, being the day she was seen by Dr Than-Trong.
A classic test of ‘incapacity’ is contained in Ball v William Hunt & Sons Limited (1912) AC 496, where Lord Loreburn says in reference to an English workers compensation statute:
“In the ordinary and popular meaning which we are to attach to the language of this
statute, I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less then it would otherwise fetch.”
Ms Geddens opined that the Respondent’s symptoms “… were clearly significant as they caused significant impairment to her occupational functioning resulting in her inability to attend work.” There was no other evidence as to capacity submitted by the Appellant.
As the Arbitrator noted, the Respondent had been certified unfit by Dr Than-Trong. As to Dr Chaudhary’s opinion in a report of 19 June 2006 that “she has not lost the ability to work and her disabilities are of a temporary nature and should resolve once the situation at work improves or the employer accepts her request to give her a daytime shift”, as the Arbitrator pointed out, “I do not consider this to mean that he [Dr Chaudhary] considered her fit for day jobs at that time without counselling”. Dr Chaudhary was clearly of the view that the Respondent required medication and “… she might need to see a psychologist for further support”.
At paragraph 50 the Arbitrator said as follows:
“In Moran Health Care Services v Woods (1997) 14 NSWCCR 499, the Court of
Appeal held that a finding of total incapacity is sustainable even though there is some evidence that the worker is able to undertake some work. As Mason P said in relation to a finding of total incapacity: ‘There will be a number of cases where, despite evidence or concession that the worker might be able to perform some tasks in some circumstances, such a finding is sustainable in law’. In that regard, I do not consider the comment of Dr Chaudhary is evidence of such capacity as the Applicant’s ability to work seems dependant on an improvement in her psychological condition.”
In her statement dated 10 August 2006, the Respondent said “I am ready, willing and able to perform any duties provided my rosters do not involve me working late at night and on my own.”
No specific reference is made to this statement in the Arbitrator’s ‘Statement of Reasons’ however, he did note (paragraph 49): “It seems common ground that the Applicant could work in other capacities if night work was not involved”.
The Arbitrator’s findings on the issue of incapacity are essentially based on the fairly uncontroversial evidence that the Respondent throughout most of 2006 was still suffering from significant psychiatric symptoms, certainly at least until September 2006 (paragraph 49). Both Ms Geddens, Dr Chaudhary and Dr Than-Trong were all of the view that the Respondent would benefit from counselling both to assist in resolution of her symptoms and in undertaking any job search.
The Appellant’s submission that the Arbitrator “… failed to take into consideration the weight of the evidence that the Applicant was capable of performing the work she was performing prior to the injury” is based essentially on the Respondent’s own statement. However, as the Arbitrator pointed out, (paragraph 49): “It is disingenuous of the Respondent to submit that the Applicant can work in a variety of day jobs when it has not offered her one itself”. In any event, as I have said, such a submission ignores the medical status of the Respondent as described by the Arbitrator.
The Appellant also takes issue with the Arbitrator’s reliance on a number of medical certificates provided by the Respondent. The Appellant points out that certificates dated 30 January 2006, 3 February and 10 February 2006 were not WorkCover Certificates and simply refer to “a medical condition”. The first reference to work related issues is contained in a certificate dated 15 February 2006. The Appellant also points out that the Respondent’s claim for weekly benefits was pleaded in her application from 20 February 2006 and that it was not open to the Arbitrator to effectively “back date” the claim for benefits.
As to this latter point, consistent with the objectives of the Commission, the Commission is not a court of strict pleading. The Respondent’s evidence was that she received sick leave or similar entitlements until 20 February 2006, the date from which her pleaded claim commenced. Such payments are not of course a bar to compensation entitlements, and it was open to the Arbitrator to assess the claim in the manner he did.
The certificates are of course one piece of evidence but ought be viewed in the context of the clinical notes of Dr Than-Trong. It is quite clear from his entry on 30 January 2006 that the Respondent told him of her symptoms and referred to what Dr Than-Trong recorded as “problem at work. Asked to start night shift at petrol station … not sleeping … anxious … teary … palpitation at night …”.
As the Arbitrator noted, Dr Than-Trong continued to certify the Respondent as unfit for work up to 30 November 2006.
Although, as the Appellant points out, Dr Chaudhary considered that the Respondent “has not lost her ability to work and her disabilities are of a temporary nature …”, Dr Chaudhary also went on to say that those disabilities “… should resolve once the situation at work improves or the employer accepts her request to give her a daytime shift” and that “as soon as favourable changes occur at her place of employment she should improve and there will be less likelihood of continuing disabilities.” As the Arbitrator rightly pointed out, those “favourable changes” did not occur. Moreover, the inference to be drawn from Dr Chaudhary’s comments is that the Respondent was still ‘disabled’ when he saw her in June 2006.
Although Dr Than-Trong’s notes record some improvement in the Respondent’s condition in the period March to July 2006, it is clear from those notes that the Respondent continued to suffer psychological symptoms, and Dr Than-Trong accordingly continued to certify her unfit for work. A mere acknowledgment of “improvement” is not of itself, in the circumstances of this particular case, sufficient to alter the Arbitrator’s finding of total incapacity.
Finally, the Appellant submits that the Arbitrator took into account “irrelevant factors” when determining the issue of ‘incapacity’ in particular, the Arbitrator’s comments as to the lack of an injury management plan. Whilst I accept the Appellant’s submission that there is no clear evidence to support the assertion that the Respondent’s inability to resume employment was due to the absence of such a plan, there is no doubt that, as the Respondent herself stated, some intervention by the Appellant in the early stages in acknowledging the Respondent’s concerns and rearrangement of her roster may well have alleviated her ongoing incapacity.
Section 45 of the 1998 Act provides as follows:
“45(1) When it appears that a workplace injury is a significant injury, an insurer who is or may be liable to pay compensation to the injured worker must establish an injury management plan for the injured worker.
(2) The injury management plan must be established in consultation with the employer …, the treating doctor and the worker concerned, to the maximum extent that their co-operation and participation allow.”
The Respondent’s injury was clearly significant to the extent that she was certified unfit for work for some considerable period of time following consultation with Dr Than-Trong on 30 January 2006. Whilst I acknowledge the Appellant’s assertion that the Respondent had not in fact suffered an ‘injury’ within the meaning of section 4 of the 1987 Act, it was certainly the opinion of Ms Geddens, qualified by the Appellant to make an assessment, that the Respondent’s condition resulted from the proposed alteration in shifts and that her symptoms “… were clinically significant as they caused significant impairment to her occupational functioning resulting in her ability to attend to work.”
In other words, Ms Geddens appears to have accepted that the Respondent did indeed suffer an injury arising out of or in the course of her employment but concluded that “it is my clinical opinion that this psychological injury has been predominantly caused by reasonable action taken by the employer …”
At paragraph 48, the Arbitrator stated:
“Further, the Applicant has been unable to return to work because of the lack of
existence of an injury management plan for which, given the report of Ms Geddens and the time certified as totally unfit by Dr Than-Trong, would seem to be a ‘significant injury’ within the meaning of s.45 of the 1998 Act.”
That statement was certainly consistent with the evidence before him however, as I said previously, the principal basis for the Arbitrator’s finding of total incapacity was his assessment of the Respondent’s clinical condition, irrespective of her own comments as to her perceived capacity for employment. It was the Arbitrator’s view that (para 48) “Such a plan will be necessary if the Applicant is to get back to day time work”.
Whilst I accept that there was certainly some evidence, essentially the statement of the Respondent, to the effect that she was fit for some work and thus only ‘partially incapacitated’, there was equally clear evidence in support of the Arbitrator’s finding of total incapacity, particularly in the absence of any evidence from the Appellant on this issue.
There was sufficient evidence to support the Arbitrator’s primary finding of fact on this issue, and, in line with my task on review to which I have referred earlier, I am not persuaded that the Appellant has demonstrated any error by him.
CONCLUSION
The Arbitrator’s determination was consistent with the totality of the evidence before him. His determination of questions of fact was supported by the evidence, notwithstanding that, in the Appellant’s submissions, other or alternative interpretations of the evidence were available.
The Arbitrator was entitled to base his award on the evidence and circumstances presented by the Respondent at the time of the Arbitration hearing on 5 December 2006. The Respondent had been certified as unfit for work up until 30 November 2006 by Dr Than-Trong. It may well be that the Respondent’s condition may improve with time.
As Deputy President Fleming said in M & S Shipman Pty Limited v Larry John Matters [2003] NSWWCCPD 19 at paragraph 34:
“It is a unique feature of the workers compensation jurisdiction that a party may make more than one claim, and consequent application to the Commission, in relation to an injury that essentially arises from the same set of facts. These typically concern further aggravation of an injury, but may also relate to the resolution of symptoms of an injury, and subsequent changes in the level of incapacity and statutory entitlements.”
DECISION
The decision of the Arbitrator dated 18 December 2006 is confirmed.
COSTS
The Appellant is to pay the costs of the appeal
Deborah Moore
Acting Deputy President
18 June 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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