Fawkes v Swan Transit Services Pty Ltd - [2019] WADC 168

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   FAWKES -v- SWAN TRANSIT SERVICES PTY LTD [2019] WADC 168
CORAM:   STAUDE DCJ
HEARD:   14 OCTOBER 2019
DELIVERED          :   3 DECEMBER 2019
FILE NO/S:   APP 51 of 2019
BETWEEN:   JOHN FAWKES
Applicant
AND
SWAN TRANSIT SERVICES PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   MS V MOSS
File Number             :   A53097

Catchwords:

Workers compensation - Appeal from arbitrator - Stress related disease - Whether arbitrator erred by not applying test in Comcare v Mooi - Whether finding that worker had not proved that he suffered a disease was against the evidence - Whether finding that worker's employment did not contribute to a significant degree was against the evidence - Whether arbitrator was entitled to reject uncontroversial medical evidence

Legislation:

The Workers' Compensation and Injury Management Arbitration Rules 2011 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal granted
Appeal allowed
Matter remitted for further hearing before a different arbitrator

Representation:

Counsel:

Applicant	:	Mr A J Stewart
Respondent	:	Mr P E Jarman

Solicitors:

Applicant	:	Chapmans Barristers & Solicitors
Respondent	:	Sparke Helmore Lawyers

Case(s) referred to in decision(s):

Beer v Duracraft Pty Ltd [2004] WASCA 192
Cape Australia Holdings Pty Ltd v Burridge [2019] WADC 105
Comcare v Mooi [1996] FCA 508; (1996) 69 FCR 439; (1996) 42 ALD 495; (1996) 137 ALR 690; (1996) 23 AAR 160
Graeme Wheildon Pty Ltd t/as Mirtza Services v Cokic (Unreported, CM(WA), 116/02, 16 December 2002)
Mokta v Metro Meat International Ltd [2005] WASCA 143
Pollock v Wellington (1996) 15 WAR 1
Todorovic v Amec Services (Unreported, CM(WA), 23/01, 16 August 2001)

STAUDE DCJ:

Introduction

This is an appeal from the decision of an arbitrator dismissing the appellant's claim for workers' compensation, on the basis that the arbitrator was not satisfied that the appellant had contracted a disease, as described in par (c) of the definition of 'injury' in s 5(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA).
I will refer to the parties by name or as the worker and the employer. I will refer to the learned arbitrator's reasons for decision delivered 22 May 2019 as the Reasons.
Mr Fawkes' main contentions in this appeal are twofold.
The first argument is that, in dismissing his claim on the basis that the medical evidence did not prove that he suffered a disease in the form of a mental ailment or disorder, the learned arbitrator erred by misinterpreting the statutory definition of 'disease' and failing to apply the test authorised by Comcare v Mooi [1996] FCA 508; (1996) 69 FCR 439; (1996) 42 ALD 495; (1996) 137 ALR 690; (1996) 23 AAR 160, that is, whether he sustained a condition, regardless of its diagnostic label, that is 'outside the boundaries of normal mental functioning and behaviour'.
The second is that the arbitrator erred in her provisional finding that the worker's employment was not a significant contributing factor in the contraction of the alleged disease, such finding being against the evidence and simply not open on the evidence.
Having considered the merits of the appeal I am satisfied that it involves a question of law. Leave to appeal should be granted accordingly. As to the nature of an appeal I respectfully adopt Gething DCJ's summary of relevant principles in Cape Australia Holdings Pty Ltd v Burridge [2019] WADC 105 [24].
No issue arises in this appeal in relation to the learned arbitrator's rejection of the alternative basis of the claim: that Mr Fawkes suffered a personal injury by accident. That argument was an unnecessary distraction from the issues at the arbitration and should not have been raised in my view.

Factual background

Mr Fawkes was employed by Swan Transit Services Pty Ltd (Swan Transit), a public transport operator, as a bus driver and had been since 2008. When the Swan Transit Enterprise Agreement 2017 was negotiated in 2016 he was nominated as a driver's representative. Later he became a depot consultative committee representative.
Swan Transit had a Fatigue Management Policy (FMP) to which Mr Fawkes was required to adhere as a term of his employment. It provided that there should be a minimum of 10 hours of non-work time between shifts. In or about February 2018, Swan Transit, in response to the need for public transport to and from events at the Perth Stadium, and after consultation with occupational health and safety representatives from all 12 of its depots, amended the FMP to reduce the minimum hours of non-work time between shifts to eight hours for workers who volunteered for special event shifts.
Over a period of about one month prior to 6 March 2018 Mr Fawkes raised numerous questions and concerns as to whether the amended FMP contravened the enterprise agreement. Despite the answers and explanations made on behalf of his employer he refused to sign the policy. The employer required that all employees sign the amended FMP and most had done so. None had taken issue with it.
At a meeting with management personnel on 6 March 2018 Mr Fawkes was told that he would be stood down if he did not sign, by way of acknowledgment, the amended FMP (the work incident).
Following that meeting the appellant did not complete his work shift. He did not return to work.
Over a period of eight months from 8 March 2018 to 21 November 2018 he was seen by five medical practitioners at Mead Medical, a general practice, each of whom certified him either totally or partially incapacitated for work as a bus driver by reason of his reported symptoms of stress, anxiety and depression.
These symptoms - labelled in some certificates as reactive stress and anxiety - were ultimately diagnosed as an adjustment disorder with mixed anxiety and depression. This disorder was described by Dr William Babe in his report of 21 November 2018 as an 'ongoing depressive illness with anxiety-type symptoms and a near phobic type reaction to returning to work'.
Dr Babe stated in that report:
Mr Fawkes is certainly unable to perform the full range of his pre‑accident duties on a full time basis due to ongoing illness of a phobic nature causing him stress with anxiety and depression.
Mr Fawkes claimed workers' compensation on the basis that he was unable to work as a bus driver due to a disease in the form of an adjustment disorder precipitated by the work incident. The employer disputed liability. In a Form 3B notice dated 1 May 2018 (exhibit A74), the employer's insurer gave as reasons for disputing liability that the worker did not sustain an injury, that any disease was caused by stress, wholly or predominantly arising from a matter mentioned in s 5(4), and that the worker was not incapacitated. The claim proceeded to arbitration pursuant to s 58.

Statutory provisions: employer's liability

Section 18(1) of the WCIMA provides that:
If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Sch 1.
The relevant definitional provisions in s 5(1) are as follows:
disease includes any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development:
injury means -
…
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
…
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;
(3)A reference in this Act to a personal injury by accident is a reference to an injury of a kind referred to in paragraph (a) of the definition of injury in subsection (1).
(4)For purposes of the definition of injury, the matters are as follows -
(a)the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment; and
(b)the worker's not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and
(c)the worker's expectation of -
(i)a matter; or
(ii)a decision by the employer in relation to a matter,
referred to in paragraph (a) or (b).
(5)In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account -
(a)the duration of the employment; and
(b)the nature of, and particular tasks involved in, the employment; and
(c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and
(d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and
(e)matters affecting the worker's health generally; and
(f)activities of the worker not related to the employment.

The nature of an arbitration pursuant to the WCIMA

Section 188 provides:
Practice and procedure, generally
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalitiess and legal forms.
(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
(4)An arbitrator may -
(a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and
(b)adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.
(5)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.
Section 189(1) provides that the granting of relief or redress under the Act is not necessarily restricted to the specific claim made or the subject matter of the claim.

The arbitration

In opening the worker's case at the hearing counsel submitted that the medical evidence would show that Mr Fawkes suffered an adjustment disorder, commenting that it was 'effectively agreed' by the parties that any psychological condition suffered by Mr Fawkes had arisen from the work incident.
Counsel submitted that medical evidence was not required in order to prove causation because, it was not a case where there were events outside of the employment, such as a pre-existing condition, at play and there was no contradictory medical evidence. Counsel for the employer responded by saying that nothing was conceded other than that Mr Fawkes was employed by Swan Transit (ts 5).
Mr Fawkes' position was that his condition was a disease in the form of a mental disorder. He did not dispute that it was stress-related, and that it arose from an excluded matter, being a matter of discipline. The real issue from his point of view, was whether the employer's actions in relation to that matter were harsh and unreasonable (ts 4).
Mr Fawkes' witness statement was tendered as his evidence‑in‑chief. His statement detailed the events leading up to and including the work incident and its aftermath.
As to the aftermath of the work incident, he stated:
50I stated to AR [Mr Allan Ritchie] and believe that I had been asked to the meeting in order to be intimidated and to be forced into signing a policy when I was never provided the information I requested even though on several occasions I had asked for answers and clarification of the company's position.
51Finally, after being intimidated and threatened with standing down, the anger and frustration they caused by ignoring safety and other issues raised in my capacity as a DCCR, I was mentally and physically drained.
52At the end of this meeting I advised AR that I was not in a fit state of mind to drive a bus and I went home.
53That night I couldn't sleep and the next day I was physically and mentally exhausted.
54I was unable to attend the arranged meeting with AR for the next day and was too fatigued and unwell to be able to perform my duties in safe and mentally composed manner
Mr Fawkes said that he had not previously seen a doctor for stress, but that on 8 March 2018 (two days after the meeting) at a medical appointment arranged for an unrelated personal condition, he discussed with his doctor what had occurred at work, and that his doctor issued a medical certificate of unfitness to work from 6 to 9 March 2018.
Mr Fawkes' evidence was that he could not work as a bus driver and had not been employed since he left work on 6 March 2018.
He said at par 79:
Overall, I have been left withdrawn, irritable and I have suffered from headaches and sleeplessness. My anxiety and depression have left me helpless. These symptoms have been further aggravated by the lack of help and understanding from my employer in relation to the behaviour of senior managers.
In cross-examination Mr Fawkes rejected the suggestion that he remained off work hoping to get a lump sum settlement when what he had been advised to do was look for alternative employment. He agreed that Dr Paul had certified him unfit to work at Swan Transit specifically, but rejected the suggestion that he was fit to work elsewhere (ts 49). He disputed he could work as a bus driver for another employer.
Two other employees, Mr Allan Ritchie and Mr Mark Davis, each of whom were present at the meeting on 6 March 2018, gave evidence for the employer. The uncontested statements of Mr Brian Thompson and Mr Jim Barlow were tendered. A lot of documentary evidence was tendered in relation to the events leading up to, and around the work incident.
The medical evidence was adduced in the form of the medical certificates and practice records of the five general practitioners from Mead Medical who had seen Mr Fawkes. There was no specialist psychiatric evidence. The employer adduced no medical evidence.
Rule 58 of the Workers' Compensation and Injury Management Arbitration Rules 2011 provides that, except with the leave of an arbitrator, the evidence of a medical practitioner must be given in writing and a medical practitioner may not be called to give oral medical evidence at a hearing before an arbitrator, and that leave is not to be given unless the arbitrator is satisfied that the giving of evidence will assist in the determination of the matter in a manner that is fair, just, economical, informal and quick.
No application was made by either side for leave to call Dr Babe or any of the other medical practitioners who had issued certificates to give evidence.
As the arbitrator observed (Reasons [10]), the main focus of the parties at the hearing was the meeting on 6 March 2018 and the events leading up to it.

Adjustment Disorder

None of the medical records or reports in evidence explained or defined a diagnosis of adjustment disorder. Because there was no medical witness called there was no evidence as to what an adjustment disorder is. On this point, although the arbitrator was empowered to inform herself as she thought fit, it is not apparent from her Reasons that she did so.
A diagnosis of adjustment disorder is commonly encountered in personal injury litigation. Neither counsel in this appeal suggested that there was any controversy about what it means.
The Diagnostic and Statistical Manual of Mental Disorders, 5^thed, known as DSM-5, is an authoritative taxonomic and diagnostic tool published by the American Psychiatric Association to which reference is often made by medical practitioners to identify a mental disorder by its diagnostic criteria. DSM-5 defines an adjustment disorder as follows:
The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s), the symptoms or behaviours being clinically significant as evidenced by one or both of:
(1)Marked distress out of proportion to the severity or intensity of the stressor.
(2)Significant impairment in social, occupational or other important areas of functioning.
According to DSM-5, in an adjustment disorder with mixed anxiety and depressed mood a combination of depression and anxiety is predominant.

The decision

The learned arbitrator identified the specific issues for determination as follows (Reasons [18]):
(a)whether the meeting on 6 March 2018 occurred as described by Mr Fawkes;
(b)did Mr Fawkes suffer an injury within limb (c) of the definition of injury in s 5(1) of the Act:
(i)in particular, has Mr Fawkes contracted a disease?
(ii)if so, was his employment a contributing factor and did it contribute to a significant degree?
(c)if so, did Mr Fawkes injury wholly or predominately arise from a matter mentioned in s 5(4) of the act;
(d)if so, was Swan Transit's conduct harsh and unreasonable;
(e)was Mr Fawkes totally incapacitated for work; and
(f)is Mr Fawkes entitled to payment of his reasonable statutory expenses.
The learned arbitrator's conclusions were that there was 'insufficient evidence' to establish on the balance of probabilities that Mr Fawkes was suffering from a disease, namely an adjustment disorder with mixed anxiety and depression and, in any event, that if he were suffering such a disease there was 'insufficient evidence' to establish on the balance of probabilities that his employment was a contributing factor and contributed to a significant degree (Reasons [10] ‑ [11], [19] ‑ [20], [20], [142]).
Not being satisfied that the worker had suffered an injury, or that if he did, his employment was a contributing factor, the arbitrator took the view that the consequential issues she had identified did not fall to be determined by her and, accordingly no provisional rulings were made on those issues. (The parties share the view that if the appeal is successful, the matter should be remitted for another arbitration.)

The work incident

The arbitrator found that the work incident occurred as Mr Fawkes described it. His evidence accorded with the minutes of the meeting on 6 March 2018 and the evidence of Mr Ritchie and Mr Davis. Towards the end of that meeting Mr Fawkes was presented with a letter that put him on notice that if he did not sign the FMP he would be stood down. He became very angry. The arbitrator accepted that Mr Fawkes perceived 'that the letter was pre-emptive and that Mr Ritchie had been just waiting to hand it out' and, that Mr Fawkes felt threatened and intimidated by Mr Ritchie and Mr Davis. She also found that he was mentally and physically drained by the meeting and that he went home afterwards. On 8 March he received a letter explaining why he had been stood down and, stating that if he signed the agreement the standing down would be lifted (Reasons [72] - [79]).
The learned arbitrator also found, on the evidence relating to the meeting on 6 March 2018, that 'the parties simply had different views about the FMP's compliance with the agreement' (Reasons [66]). She accepted that it was Mr Fawkes' perception that the responses provided by Swan Transit management to his continued questions and concerns were unclear, were not in the detail he expected, or were in some way unsatisfactory.

The learned arbitrator observed that the real question in terms of evidence was the effect that the meeting had upon Mr Fawkes (Reasons [81]).
No issue arises in this appeal from the arbitrator's findings as to the work incident.
The arbitrator made no adverse comments or findings in relation to Mr Fawkes' evidence. The result turned solely on the medical evidence.

The medical evidence

The learned arbitrator noted that there was no contrary evidence to the medical evidence adduced by Mr Fawkes. In her Reasons she referred to the following aspects of the evidence.
The notes of Dr Do of the 8 March 2018 consultation were:
Stress and intimidation at work and suffered anxiety. Occasionally tightness on the chess, unable to sleep at night, headaches, paracetamol and ibuprofen did not help, feels unfit to drive.
Dr Do recorded that Mr Fawkes had been 'called into meetings' and 'pressured to sign agreements'. He had been informed that he would be stood down without pay and 'felt bullied by this situation'.
The notes of Dr Money's consultation on 12 March 2018 indicated that Mr Fawkes had been extremely anxious, stressed, not sleeping, feeling angry and frustrated and did not feel safe to drive a bus, and that he had been prescribed Valium.
Dr Money issued the first certificate of capacity dated 12 March 2018. He diagnosed 'stress and anxiety - reactive', and certified incapacity for work from 12 March 2018 to 16 March 2018. The symptoms were stated to be 'anger, frustration, poor sleep, feeling helpless'.
Dr Money also noted:
Very stressed and anxious. Affecting sleep and would be dangerous for him to drive a bus in his current mental state.
The consultation records of Dr Stevens dated 16 March 2018 noted a history of workplace harassment and bullying. Dr Stevens noted that Mr Fawkes was not sleeping well and was teary, agitated and distressed. Dr Stevens issued a certificate on that date. The diagnosis was 'reactive anxiety and stress secondary to work conflict'. It certified him as incapacitated for work until 30 March 2018.
Dr Stevens signed a further certificate on 28 March 2018. He repeated his diagnosis of reactive anxiety and stress secondary to work conflict and certified the plaintiff incapacitated until 6 April 2018.
There was a consultation with Dr Stevens on 9 April 2019 when he noted that Mr Fawkes' stress levels were still very high. In a certificate of that date he again gave diagnosis of reactive anxiety and stress and certified Mr Fawkes to be incapacitated until 14 June 2018.
Dr Stevens again saw Mr Fawkes on 11 June 2018 and issued a certificate certifying him to be incapacitated until 9 July 2018.
On 6 July 2018 Mr Fawkes saw Dr Paul whose notes read:
Ongoing issues with employer over past three-six months which have resulted in John not being able to work due to psychological symptoms.
-    Feels he was stood down unfairly.
-    Does not feel it was related to performance issues.
-    Currently working with solicitors on conciliation.
-    Does not feel he will be able to return to Swan Transit.
-    DASS completed today.
-    Depression 9 (moderate).
-    Anxiety 7 (moderate).
-    Stress 14 (severe).
Dr Paul, stating the same diagnosis as Dr Stevens, certified Mr Fawkes incapacitated until 3 August 2018. The certificate stated that Mr Fawkes had ongoing issues with his employer that resulted in him not being able to work due to psychological symptoms.
On 3 August 2018 Dr Paul noted:
Continues to be in limbo - has provided further information to solicitor - awaiting outcome of this. Anxiety type symptoms can tend to increase when thinking about situation.
I feel diagnosis here is adjustment disorder with mixed anxiety and depression - would not fit criteria for major depression or generalised anxiety.
Dr Paul certified Mr Fawkes to be partially incapacitated for work until 7 September 2018.
Mr Fawkes then saw Dr Babe. Dr Babe noted 'reactive anxiety and stress secondary to work conflict' and certified Mr Fawkes to be partially incapacitated until 20 October 2018.
Dr Babe signed a further certificate on 5 October 2018 indicating partial incapacity until 1 December 2018.
On 21 November 2018 Dr Babe saw Mr Fawkes for complaints of stress and hypertension. He certified him to be partially incapacitated for work until 1 February 2019, observing that he remained unfit for work and that this would be ongoing until issues were resolved.
Dr Babe's report of 21 November 2018 stated that Mr Fawkes had an ongoing depressive illness, with anxiety type symptoms and, a near phobic type reaction to returning to work. Dr Babe diagnosed Mr Fawkes with an adjustment disorder with anxiety and depression.
He qualified his opinion by saying that he only had the opinion of other doctors (his colleagues Dr Do, Dr Money, Dr Stevens and Dr Paul) and his own assessment based on three consultations with Mr Fawkes. Not having seen him prior to September 2018 he could not comment on his previous condition.
He said that Mr Fawkes believed that work place stress and bullying were the cause of his ongoing symptoms. In this regard it is notable that, all but one of the certificates of capacity, indicate the injury date as 6 March 2018, the date of the meeting. The exception is the first certificate of capacity dated 12 March 2018, but that clearly refers to the meeting on 6 March 2018 when Mr Fawkes was threatened with being stood down, and the arbitrator so found (Reasons [154]).
Dr Babe stated that he thought that Mr Fawkes was fit for alternative employment and, in a further report of 13 December 2018, he said that he perused all the medical records held at his clinic and found no mention of stress or other psychiatric illness prior to 8 March 2018.

Arbitrator's findings on the medical evidence

The learned arbitrator, notwithstanding the absence of any controversy with respect to the diagnosis of adjustment disorder with mixed anxiety and depression, found that there was no such disorder proved.
She considered that the diagnosis of 'reactive anxiety and stress' and adjustment disorder with mixed anxiety and depression were inconsistent or descriptive of different conditions.
She also observed that the manner of Dr Paul's expression of his diagnosis in terms 'I feel diagnosis here is adjustment disorder with mixed anxiety and depression' was 'somewhat tentative'. She observed that no factual basis was provided for this diagnosis.
The arbitrator was not satisfied that Dr Paul's diagnosis could be relied upon and gave his evidence little or no weight. Dr Paul was not called for cross-examination. Nor was Dr Babe.
The arbitrator dismissed Dr Babe's diagnosis on the basis that he gave no indication for describing Mr Fawkes' condition in one place as 'reactive, stress and anxiety', in another as 'adjustment disorder with mixed anxiety and depression,' and in his report as 'ongoing depressive illness with anxiety type symptoms and near phobic-type reaction to returning to work'.
Again, she observed that there was no factual basis for the diagnosis. The arbitrator later said that Dr Babe did not specifically set out the factual basis for the diagnosis of adjustment disorder and, accordingly, she could not accept his opinion. She also commented on the lack of evidence of the length of any of Dr Babe's three consultations with Mr Fawkes.
The arbitrator said that she did not consider that Dr Babe's 'differing' diagnosis was arrived at through careful interview and assessment and, was not satisfied, that Dr Babe's diagnosis could be relied upon such that she gave his evidence little or no weight.
The learned arbitrator also dismissed the evidence of Dr Money. Although she found that his prescription of Valium for 'stress and anxiety - reactive' was consistent with Mr Fawkes having a mental ailment or psychological illness, she felt that his diagnosis was a 'description of symptoms' rather than the 'diagnosis of a mental ailment such as would constitute a disease'. She said:
On the one hand whilst a prescription of Valium is consistent with Mr Fawkes having a mental ailment or psychological condition, on the other hand it may also be a prescription to alleviate symptoms of stress and anxiety absent of any diagnosis of a mental ailment or psychological condition.
Accordingly, notwithstanding the consistent and unchallenged documentary evidence of no less than five general practitioners, Dr Do, Dr Money, Dr Stevens, Dr Paul and Dr Babe, all of whom had certified Mr Fawkes as incapacitated, or partially incapacitated for work due to either reactive anxiety and stress or adjustment disorder with mixed anxiety and depression and, had attributed the date of injury to 6 March 2018, the arbitrator found that there was no evidence of the worker having suffered a disease.
The learned arbitrator went on to find that if she were wrong in concluding that Mr Fawkes had not suffered a disease, his employment was not a contributing factor and did not contribute to a significant degree to the contraction of such disease.
In this regard the arbitrator considered the factors set out in s 5(5). She noted that Mr Fawkes had been employed by Swan Transit as a bus driver since 2008 and, that there was no evidence to suggest that he would have contracted an adjustment disorder despite his employment.
There was no evidence of any hereditary factors and there was no evidence of any other health issues that were relevant. There was no evidence of any non-work related factors contributing to the contraction of an adjustment disorder.
The arbitrator found at [146]:
After considering the s 5(5) factors I find that there were no non-work related stressors or personal characteristics that may have contributed to any alleged disease. However, this finding does not inevitably lead to the conclusion that the employment contributed and contributed to a significant degree to Mr Fawkes contracting the alleged disease.
Mr Fawkes carries the onus of proving that which he asserts. He must establish that the meeting on 6 March 2018 was a contributing factor and contributed to a significant degree to him contracting the alleged disease, namely an adjustment disorder with mixed anxiety and depression.
The arbitrator then found that Dr Babe's statement that 'Mr Fawkes believes that work place stress and bullying was the cause of his ongoing symptoms' did not amount to an opinion as the cause of his symptoms (Reasons [149]).
Neither did the learned arbitrator consider that, Dr Money's notes and certificates that related Mr Fawkes' complaints to an incident on 6 March 2018, amounted to an opinion as to the cause of Mr Fawkes' symptoms (Reasons [156]).
Nevertheless, the learned arbitrator considered that it was possible to infer that 6 March 2018 was a contributing cause (Reasons [156]). That inference, however, the arbitrator said was contradicted by Dr Babe's report that stated that Mr Fawkes was:
Subjected to what he perceived as prolonged bullying and intimidation by management and found his name missing from anticipated driving rosters.
She said (Reasons [157]) :
In my view this evidence strongly mitigates [sic] against me being able to infer that Mr Fawkes' symptoms were a consequence of the meeting on 6 March 2018.
She also considered on the notes of Dr Do that a causal connection between the work incident and Mr Fawkes' reported symptoms could not be shown.
Having found that the medical evidence did not support the claim of Mr Fawkes the arbitrator referred to Pollock v Wellington (1996) 15 WAR 1. The decision is authority for the proposition that for an expert medical opinion to carry weight, the facts on which is founded, must be proved by admissible evidence and, the opinion must be founded upon those facts (Anderson J at [3]).
The reason for this reference is unclear. There was no controversy of expert opinion in this case that required the arbitrator to weigh the evidence of one expert against another. Moreover, neither of the issues decided by the arbitrator depended upon her acceptance of a medical opinion. Indeed, none of the general practitioners whose records and reports were in evidence expressed an opinion on the issues decided by the arbitrator. While it might be observed that an expert opinion is implicit in the making of a diagnosis, in this case that merely involved either characterising the worker's condition as 'reactive stress and anxiety' or assigning a DSM-5 label to it. Certainly, no doctor purported to express an opinion on the issue of causation, but each gave the date of onset as 6 March 2018 and each mentioned a history of work problems.
The certificates of capacity involve opinions, of course, but the issue of incapacity was not touched upon in the arbitrator's decision.
The arbitrator also referred to the following dictum of McLure J (as her Honour then was) in Beer v Duracraft Pty Ltd [2004] WASCA 192 [80]:
In this case, as with the majority of cases involving medical expert evidence, the relevant history supplied by the claimant provides the factual foundation for the statement of expert opinion. In many cases there is not an exact correlation between the facts proven in evidence and the facts relied upon by the medical practitioner upon which his or her opinion is based. The role of the decision maker is to examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight.
Again, the relevance of the citation is not apparent given that no opinion, evidence was relied upon. The nature of Mr Fawkes' case was outlined in opening. Counsel submitted that no evidence was required to show causation as there was no pre-existing condition, no non-work related causes at play, and no contradictory evidence. The worker's case on causation was inferential.
At the end of the day the learned arbitrator found that Mr Fawkes (Reasons [172]):
Has not produced any or any sufficient medical evidence to prove that he suffered an injury in the form of a disease to which his work was a contributing factor and contributed to a significant degree.

Grounds

There are six grounds of appeal. The first ground contends that the learned arbitrator erred in law by failing to properly interpret and apply the definition of injury in s 5(1) so as to conclude incorrectly that Mr Fawkes did not suffer a disease and, that if he did, his employment was not a contributing factor (and did not contribute significantly).
The argument particularised here is that the arbitrator by holding that 'stress is not a disease' and 'anxiety is not a disease unless it manifests as a specified disorder' (Reasons [117]) misinterpreted what constitutes a disease, that she wrongly concluded that a diagnosis of 'reactive anxiety and stress' was not a disease, and that she wrongly concluded that the employment was not a significant contributing factor to the contraction of the disease.
This ground raises the principal issue in this case which is whether the arbitrator applied the correct test in determining whether Mr Fawkes had suffered from a disease in the form of a mental ailment or, disorder to which his work was a significant contributing factor.
Ground 2 contends that the arbitrator incorrectly required Mr Fawkes to prove his case to a higher standard than on the balance of probabilities. This ground is not pressed.
Ground 3 contends that the learned arbitrator erred in her interpretation or application of Pollock v Wellington and, in so doing wrongly failed to give proper weight to the evidence of Dr Paul, Dr Babe and Dr Money.
Ground 4 contends that as a result of the error contended for in ground 3 the learned arbitrator erred in law and fact by concluding that she could not be satisfied on the medical evidence that Mr Fawkes suffered a disease.
Ground 5 contends that as a consequence of the error in ground 3 that the arbitrator erred in law and fact in concluding that Mr Fawkes' employment was not a significant contributing factor in the contraction of the disease.
Ground 6 alleges, in the alternative to count 4 and count 5, that the arbitrator's findings were not open on the evidence. I interpret ground 6 as a contention that the findings against Mr Fawkes were against the evidence and the weight of the evidence and unreasonable.
Reducing these grounds to their essence, I consider the main issues in the appeal to be whether, in respect of each of the conclusions reached by the arbitrator, the arbitrator erred in principle in her interpretation of 'disease' as a form of injury by failing to consider whether Mr Fawkes' condition, as described by the treating medical practitioners and, irrespective of the diagnostic label given to such condition, was 'outside the boundaries of normal mental functioning and behaviour' so as to constitute a disease in the form of a mental disorder and, whether the arbitrator erred as a matter of fact and law by unreasonably rejecting the medical evidence and finding against the evidence and the weight of the evidence, that Mr Fawkes had not suffered from a disease and that his employment was not a significant contributing factor.
The Pollock v Wellington point is incidental and has been dealt to some extent already. In my view, none of the medical evidence in this case being given in documentary form ought to have been rejected on the basis of this principle in circumstances where it was consistent and uncontradicted. In any event, to the extent that the making of a diagnosis involves the formation of an opinion, I find that Dr Paul and Dr Babe did base their diagnosis on symptoms that met the DSM‑5 diagnostic criteria. The reasoning of each of them is patent.

Resolution

The test in Comcare v Mooi has been applied in Todorovic v Amec Services (Unreported, CM(WA), 23/01, 16 August 2001), and Graeme Wheildon Pty Ltd t/as Mirtza Services v Cokic (Unreported, CM(WA), 116/02, 16 December 2002). There is no issue as to its applicability in this case.
There is no reference in the Reasons to the test in Comcare v Mooi, yet it was addressed in the written outlines of submissions of the employer in opening and in closing. The employer's submissions to the arbitrator properly pointed out, as a matter of law, that in order to establish that he had a disease Mr Fawkes had to establish the existence of 'a mental ailment, disorder, defect or morbid condition' and that in doing so, had also to demonstrate that he had sustained a condition that was 'outside the boundaries of normal mental functioning and behaviour'.
The employer's position is that it is implicit in the arbitrator's findings that the Comcare v Mooi test was not satisfied on the evidence. That is not at all apparent from my reading of the Reasons. The test was clearly capable of being satisfied on the evidence of Mr Fawkes and the medical evidence.
The decisions cited above are good illustrations of the applicability of the test. In Todorovic v Amec Services, Cockram CM said of a review officer's decision:
Rather than considering whether the appellant's condition is 'is outside the boundaries of normal mental functioning and behaviour', which does not need to be 'identified with the label of a recognised medical condition', the review officer appears to have focused on the need for the appellant to be suffering from a condition that can be labelled. In doing so the review officer, in my opinion, misdirected himself as to the meaning of disease in s 5 and, as a result, failed to properly consider whether the appellant had contracted a disease as required for a paragraph (c) disability.
In Graeme Wheildon Pty Ltd t/as Mirtza Services v Cokic, Brown CM held [20]:
Given the definition of 'disease' in s 5 it is difficult to accept the appellant's proposition that the review officer was in error in finding he had contracted a disease. 'Stress and anxiety' are conditions which in my view are capable of being held to be 'outside the boundaries of normal mental functioning and behaviour' in a given case. The circumstances of a given case history need to be assessed by the review officer.
…
The review officer was not required to identify 'a recognised psychiatric disorder'. It was sufficient in the circumstances of this case to find that the respondent had suffered a disease (which includes a mental ailment) described as 'stress and anxiety' which was well outside the boundaries of his normal mental functioning and behaviour.

In my view, the arbitrator's error in the present case is conspicuous. The arbitrator clearly misdirected herself at Reasons [117] where she said 'I note at this juncture that "stress" is not a disease. Nor is "anxiety" unless it manifests as a specified disorder.' Nowhere in the Reasons does the arbitrator consider whether the symptoms experienced by the worker (no adverse findings having been made as to the credibility of his evidence or of his complaints to his doctors) demonstrated a condition that was 'outside the boundaries of normal mental functioning and behaviour'.
The Reasons disclose, however, a more fundamental error. In my view, there was no reason for the arbitrator, having accepted Mr Fawkes' evidence, to reject the documentary evidence of five medical practitioners in the form of their clinical records and certificates (and in the case of Dr Babe his report) to the effect that Mr Fawkes had presented repeatedly with psychological symptoms that were indicative of stress and anxiety that related to the work incident, that incapacitated him for work as a bus driver and that could be diagnosed as an adjustment disorder for the purposes of DSM-5.
The diagnosis of Mr Fawkes' reported symptoms as an adjustment disorder with mixed anxiety and depressed mood was made by Dr Paul and Dr Babe. In a jurisdiction where medical witnesses are generally not called, the medical evidence consisting of clinical notes, certificates of capacity and reports, an arbitrator is, in my view, bound to inform herself of the medical terminology used. The Workers' Compensation Arbitration Service is, after all, a specialised jurisdiction accustomed to dealing with medical evidence in documentary form. Moreover, as I have previously noted in these reasons, s 188 of the WCIMA provides that the arbitrator is to act 'according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'.
An adjustment disorder is by definition 'the development of emotional or behavioural symptoms in response to an identifiable stressor occurring within three months of its onset.' The characterisation of Mr Fawkes' symptoms by reference to that diagnostic label is, consistent with the diagnosis of 'reactive stress and anxiety' expressed by other doctors at Mead Medical who saw Mr Fawkes. As a matter of fact, therefore, there was no necessary inconsistency between the diagnoses entered on the various certificates of capacity, and certainly none that would justify the finding of the arbitrator that the medical evidence did not establish a disease in the form of a mental ailment or disorder.
There was no evidence to suggest that the words 'stress and anxiety - reactive' (Dr Money) and 'reactive anxiety and stress due to work conflict' (Dr Stevens and Dr Paul) referred to anything other than what Dr Paul and Dr Babe later, in the terms of DSM-5, labelled 'adjustment disorder with mixed anxiety and depression'. (DSM‑5 actually uses the words 'with mixed anxiety and depressed mood', but there is no significance to be given to the slight difference in wording.) Neither did the evidence indicate that there is any substantial difference between those diagnostic labels. Each expression describes a condition where the symptoms described are experienced in reaction to, or secondary to, a stressful event.
It is also clear that where 'depression' is used in the documentary medical evidence, the word refers to depressed mood as a symptom rather than major depression as a diagnosis. Dr Paul, who first diagnosed an adjustment disorder and, with whose diagnosis Dr Babe obviously agreed, wrote on 3 August 2018 that Mr Fawkes' symptoms 'would not fit criteria for major depression or generalised anxiety'. The arbitrator was mistaken when she observed at Reasons [127] that Dr Babe diagnosed depression. He did not. He described Mr Fawkes as having 'a depressive illness with anxiety type symptoms', but his diagnosis was an adjustment disorder, not major depression.
The question for the arbitrator was, whether irrespective of what diagnostic label might be given to it, Mr Fawkes' symptomatic condition was 'outside the boundaries of normal mental functioning and behaviour'. Symptoms that are capable of satisfying the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood are by definition outside the boundaries of normal mental functioning and behaviour such that they constitute a mental ailment or disorder.
Accordingly, had the proper test been applied, the arbitrator could only have concluded that Mr Fawkes did suffer a disease for the purposes of s 5(1).
The arbitrator went to some lengths to rationalise the rejection of the medical evidence. Dealing with Dr Paul's certificates, for example, she described his diagnosis of adjustment disorder as 'somewhat tentative' because he used the words 'I feel the diagnosis here is…'. In the context in which it appears 'feel' is synonymous with 'think' and 'consider'. Dr Paul was not cross-examined. There was no reason to reject his evidence on the basis of a semantic observation.
The arbitrator went on to say that he gave no reasons for his diagnosis. Here, it is appropriate to note that Dr Paul did not make a medical report as such but, merely completed certificates of capacity on 6 July 2018 and 3 August 2018. When he saw Mr Fawkes on 6 July 2018 Dr Paul had the clinical notes of the consultations of his colleagues that recorded work-related stress symptoms since 6 March 2018. He took a history (recorded in the patient health summary) and administered the Depression Anxiety Stress Scales questionnaire (DASS). He noted scores for depression, anxiety and stress. His notes of the consultation on 3 August 2018 indicate anxiety-type symptoms related to work. They also record a 'long discussion about issues'. I have dealt elsewhere with the Arbitrator's error in finding that Dr Paul expressed inconsistent diagnoses. There were no proper grounds for the arbitrator's rejection of the evidence of Dr Paul's notes and certificates.
Similarly, in my opinion, there were no proper grounds for a rejection of Dr Babe's report. His report was based on his three consultations and informed by the patient health summary. The report did not disclose necessarily inconsistent diagnoses. It set out the history and findings on which the diagnosis of adjustment disorder with mixed anxiety and depression was based. That diagnosis was consistent with Dr Paul's and was uncontradicted.
As to the second issue, it is clear that the symptoms described by Mr Fawkes in his evidence, and reported to his doctors from time to time, dated from and related to the work incident. It can be reasonably inferred from the chronology of the events described by Mr Fawkes in his statement that, these symptoms related to the incident on 6 March 2018. Indeed, on the findings of the arbitrator, it was the only available inference. The statutory test is whether the worker's employment was a contributing factor and contributed to a significant degree. 'Significant' in this context means not insignificant or negligible, but material: Mokta v Metro Meat International Ltd [2005] WASCA 143 [39] (Pullin JA).
The evidence of Mr Fawkes as to what happened in the incident and how he felt afterwards was accepted by the arbitrator. Specifically, the arbitrator accepted that, if he had an adjustment disorder, there was no evidence that he would have contracted it despite his employment. There was no family history that pre-disposed him to that disorder. There were no non-work related factors that may have contributed to the contraction of an adjustment disorder. All of the certificates of capacity gave 6 March 2018 as the date of onset. The only evidence before the arbitrator was that the causative stressor was the work incident. In the circumstances of this case that finding was inevitable and, did not require in this case, the support of medical opinion as to causation.
The arbitrator's findings that Mr Fawkes did not suffer from a disease in the form of a mental ailment or disorder and, that if he did, his employment did not contribute to it to a significant degree, were against the evidence and the weight of the evidence and wrong. The 'real' issues for determination in this case remain to be decided. They are whether the employer's discipline of Mr Fawkes on 6 March 2018 was harsh and unreasonable and, contingently the degree to which Mr Fawkes has been incapacitated.
Leave to appeal is granted and the appeal is allowed. The arbitrator's findings that Mr Fawkes did not suffer from a disease in the form of a mental ailment or disorder and, that if he did, his employment did not contribute to it to a significant degree are set aside. The matter is remitted for re-hearing by another arbitrator in accordance with these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Staude
3 DECEMBER 2019