Harding v Westpac Banking Corporation - [2018] NSWWCCPD 7

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Harding v Westpac Banking Corporation [2018] NSWWCCPD 7
APPELLANT:	Lester Harding
RESPONDENT:	Westpac Banking Corporation
INSURER:	Self-insured
FILE NUMBER:	A1-3925/17
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	17 November 2017
DATE OF APPEAL DECISION:	28 February 2018
SUBJECT MATTER OF DECISION:	Admission of fresh evidence on appeal, application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501; s 289A of the Workplace Injury Management and Workers Compensation Act 1998: determination of matters not previously notified as disputed; decision on a basis outside the submissions of the parties: application of Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141; Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; 23 NSWCCR 463 and Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1; failure to consider a relevant concession – error in fact finding: application of Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816, party seeking to rely on evidence and arguments not raised at first instance.
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	McNally Jones Staff
Respondent:	HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:	1. The respondent’s application to rely on fresh evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 2. Sub-paragraph [1(c)] of the Certificate of Determination dated 17 November 2017 is revoked, and the following order is made in its place: “(c) From 4 April 2017 to date and continuing, at the rate of $919.92 pursuant to s 37.” 3. The balance of the Certificate of Determination is confirmed.

INTRODUCTION

This matter involved a claim for continuing weekly payments of compensation, from 28 November 2016, resulting from a psychological injury. The appeal raises an issue going to whether the Arbitrator erred, in awarding weekly payments for a closed period from 28 November 2016 to 30 August 2017, having regard to the evidence, and the way in which the matter was conducted by the parties at the arbitration hearing. For reasons which follow, the appeal is upheld.

BACKGROUND

Lester Harding was employed by Westpac Banking Corporation (Westpac) as a Senior Relationship Manager, from 2008. A team of four people reported to him, and his work involved the practice of margin lending. He stated that his duties involved “a combination of client relationship management, sales and administration”. He said that he managed “approximately $800,000,000.00 in margin debt as at end of November 2016”.[1]
[1] Mr Harding’s statement dated 14 March 2017 (Harding 1), [42].
Mr Harding stated that in October 2015 he was stressed and anxious when he was told he would be losing a team member in a restructure, and should confirm who it would be. He saw a doctor and was prescribed sleeping pills.[2]
[2] Harding 1, [69]–[71].
Difficulties developed between Mr Harding and Michael Miller, the Head of Institutional and Premium Sales, who Mr Harding reported to. Mr Harding said that the culture “deteriorated”, and targets were set that were “unachievable”.[3] There was a restructure in April – May 2016.[4] On 25 November 2016 Mr Harding (and other team leaders) received an email from Michaela McGlinn, the Head of Investment Distribution, who Mr Miller reported to. The email raised issues about the team leaders being behind in the coaching and reporting of their teams. On the same day Mr Harding received an email from Mr Miller, which “chastised us”. Mr Harding “thought the tone of [Mr Miller’s] email was rude, derogatory and totally unnecessary”. [5] Mr Harding was not paid a bonus for 2016. On the afternoon of 28 November 2016 Mr Harding met, at his request, with Ms McGlinn. The discussion included Mr Harding’s relationship with Mr Miller. After work that day, Mr Harding saw a doctor and stopped work.[6]
[3] Harding 1, [52].
[4] Harding 1, [138].
[5] Harding 1, [55]–[59].
[6] Harding 1, [60]–[62], [91]–[94].
Mr Harding submitted a claim form on 8 March 2017, for psychological injury.[7] Westpac disputed the claim, in a s 74 notice dated 20 April 2017. The notice accepted that Mr Harding had sustained a psychological injury, but said there was a defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). The notice asserted the injury resulted wholly or predominantly from reasonable action taken or proposed to be taken by Westpac, with respect to performance appraisal, retrenchment or the provision of benefits.[8]
[7] ARD, pp 10–12.
[8] ARD, pp 1–9.

THE ARBITRAL PROCEEDINGS AND DECISION

The Application to Resolve a Dispute (ARD), claiming weekly payments and medical expenses, was registered in the Commission on 7 August 2017. An arbitration hearing was held on 17 October 2017. Mr Brennan, solicitor, appeared for Mr Harding, and Mr Morgan, barrister, for Westpac. There were no applications to give evidence or to cross-examine. The matter proceeded on the documentary material, the parties legal representatives addressed, and the Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 17 November 2017, accompanied by 27 pages of reasons (the decision).
The Arbitrator noted Westpac’s acceptance that Mr Harding had suffered psychological injury. He recorded that the matters notified as being in issue were whether Westpac had a defence pursuant to s 11A(1) of the 1987 Act, based on its actions with respect to performance appraisal, retrenchment or the provision of benefits, and alternatively, levels of incapacity.[9]
[9] Decision, [3]–[7].
The Arbitrator summarised Mr Harding’s statements, together with those of Ms McGlinn and Mr Miller. He set out the emails forwarded by those people to Mr Harding, dated 24 November 2016 and 25 November 2016 respectively.[10] He summarised the medical evidence from Dr Enright, Mr Mueller (psychologist), Dr Jacobson and Dr Vickery.[11] He summarised the parties’ submissions.[12]
[10] Decision, [18]–[84].
[11] Decision, [83]–[121].
[12] Decision, [122]–[134].
The Arbitrator considered Westpac’s actions in October 2015, requiring Mr Harding to select a team member for retrenchment. He concluded that this was “part of [Mr Harding’s] duties as team leader … and not an unreasonable action by [Westpac] in respect of retrenchment”.[13] The Arbitrator referred to Mr Harding not receiving a bonus payment for 2016. He said the payment of a bonus (the amount was not in evidence) constituted the provision of employment benefits to workers. He accepted Ms McGlinn’s evidence that the targets for a bonus were “not unrealistic”.[14]
[13] Decision, [168]–[170].
[14] Decision, [173]–[174].
The Arbitrator referred to the receipt by Mr Harding of Mr Miller’s email dated 25 November 2016. He said this could not be characterised as ‘performance appraisal’, but was an action with respect to ‘discipline’. He said there was nothing about the email which was “inappropriate, offensive, or unreasonable”. He accepted Mr Miller’s evidence that he did not “micro-manage” Mr Harding.[15]
[15] Decision, [174], [180].
The Arbitrator said that Westpac “has satisfied its onus of proof”, based on Dr Vickery’s report dated 3 April 2017.[16] He then referred to Dr Vickery’s opinion in his report dated 30 August 2017, that Mr Harding’s “injury was not wholly or predominantly caused” by relevant reasonable action taken by Westpac.[17] He said that the facts assumed by Dr Vickery, in forming this view, did “not have much resemblance” to the evidence accepted by him (the Arbitrator) from Ms McGlinn and Mr Miller. The Arbitrator said that Mr Harding’s statements dated 26 July 2017 involved “unfounded accusations” and were “affected by his condition”.[18]
[16] Decision, [181].
[17] Decision, [182].
[18] Decision, [183]–[184].
The Arbitrator described it as “settled law” that the onus of proof of a defence based on s 11A rested on the employer, and this “cannot usually be satisfied unless there is expert medical evidence that supports the contentions on which it relies”. He said that Westpac’s s 11A defence “must fail due to the second report of Dr Vickery”.[19]
[19] Decision, [185].
The Arbitrator then dealt with the issue of incapacity. Dr Vickery, on 3 April 2017, said Mr Harding could work 12 hours per week. The Arbitrator concluded that Mr Harding had ‘no current work capacity’ from 28 November 2016 up to 3 April 2017. He referred to Dr Vickery’s opinion, and said that Mr Harding could earn $750 per week, for 12 hours work per week, from 4 April 2017 to 30 August 2017. He concluded that from 30 August 2017 Mr Harding was “fit to earn his pre-injury salary”.[20] He made a general order for the payment of medical and related expenses. He made the following award for weekly compensation pursuant to the 1987 Act:
(a)    $1,955.20 from 28 November 2016 to 27 February 2017 pursuant to s 36;
(b)    $1,667.92 from 28 February 2017 to 3 April 2017 pursuant to s 37, and
(c)    $919.92 from 4 April 2017 to 30 August 2017 pursuant to s 37.[21]
[20] Decision, [187]–[190].
[21] Decision, [192].

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

MR HARDING’S GROUNDS OF APPEAL

The appeal challenges the findings of the Arbitrator that Mr Harding was able to earn $750 per week from 4 April 2017, then an amount equal to his pre-injury earnings from 30 August 2017, and was not entitled to continuing weekly compensation from 30 August 2017. The Application to Appeal identifies 11 grounds of appeal, although these effectively fall into the following two areas.

Westpac’s Concessions

Grounds Nos 1 to 3 allege that the Arbitrator erred in failing to acknowledge and address concessions made by Westpac, relevant to incapacity:
(a) The Reply asserted that Mr Harding’s injury was “non-compensable” due to Westpac’s defence pursuant to s 11A(1) of the 1987 Act. In this context, Westpac’s Reply stated that it “does not dispute that [Mr Harding] has been partially incapacitated as a result of his non-compensable injury”.[22] Mr Harding submits that the dispute on incapacity was limited to the extent of partial incapacity, not to whether Mr Harding was incapacitated at all (Ground No 1).
(b) Westpac, at the arbitration hearing, submitted that Mr Harding had a partial incapacity, not that incapacity had ceased. It submitted that Mr Harding was fit to work 12 hours per week, and “generate income in the order of $500 a week”. Weekly compensation “would be reduced accordingly from April of 2017”.[23] Westpac did not submit that Mr Harding’s ability to earn in suitable employment was greater than $500 per week, nor that incapacity had ceased (Ground No 2).
(c) Mr Harding, at the arbitration hearing, accepted the submission by Westpac’s counsel, referred to in the preceding sub-paragraph. The parties agreed on the extent of Mr Harding’s “incapacity and diminished earning capacity”. The dispute was restricted to whether the ability to earn $500 per week commenced from 3 April 2017 (the date of Dr Vickery’s report) or 29 June 2017 (the date of Mr Mueller’s report).[24] That was the issue between the parties regarding incapacity (Ground No 3).
[22] Reply, Part 3 at [4].
[23] Transcript of Arbitration of 17 October 2017 (T) 16.7–18.
[24] T 34.13–21.

Alleged Factual Error

The balance of the grounds go to whether the evidence, and how the Arbitrator dealt with it, supported the findings on incapacity. The alleged errors are:
(a)    The finding that Mr Harding was able to earn as much as his pre-injury earnings, after 30 August 2017, was not supported by the probative evidence (Ground No 4).
(b) The Arbitrator’s acceptance of Dr Vickery’s opinion on incapacity, in his report dated 30 August 2017, was erroneous. Dr Vickery last examined Mr Harding on 3 April 2017, when he opined that Mr Harding was “fit to return to employment for up to 12 hours per week” (Ground No 5).
(c)    The Arbitrator erred in failing to acknowledge the probative value of the opinion of the treating psychiatrist, Dr Jacobson, regarding Mr Harding’s capacity, he having examined Mr Harding on 26 May 2017 and 14 June 2017 (Ground No 6).
(d)    The Arbitrator erred in his interpretation of Mr Mueller’s opinion on incapacity, which was not available on a proper reading of his report (Ground No 7).
(e)    The Arbitrator erroneously failed to properly acknowledge a number of aspects of Mr Mueller’s opinion on Mr Harding’s capacity (Ground No 8).
(f)    The Arbitrator erroneously failed to properly acknowledge a number of aspects of Dr Jacobson’s opinion on Mr Harding’s capacity (Ground No 9).
(g)    The Arbitrator erroneously failed to acknowledge the lack of evidence of treatment of Mr Harding, subsequent to the reports of Mr Mueller and Dr Jacobson, which increased his ability to work beyond that assessed by Dr Vickery on 3 April 2017. That is, there was no evidence of treatment which would have increased Mr Harding’s capacity to work over that period (Ground No 10).
(h)    The Arbitrator erred in not entering a continuing weekly award of $919.92 from 4 April 2017, pursuant to s 37 of the 1987 Act (Ground No 11).

WESTPAC’S GROUNDS OF APPEAL

Although Westpac is the respondent to the appeal, in the alternative it supports the appeal. Westpac’s Notice of Opposition was filed on 7 February 2018. It states, in the alternative:
“The Respondent agrees that the decision is affected by error and submits that the matter should be referred back to Arbitrator Wynyard, or another Arbitrator, for re-determination.”[25]
[25] Westpac’s submissions, [10].
Westpac then submits that all 11 of Mr Harding’s grounds of appeal should fail. Westpac, under a heading “Submissions in the alternative”, refers to a supplementary report of Dr Vickery dated 5 October 2017, addressed to its solicitors (the third report) and to an email from its solicitors to Mr Harding’s solicitors dated 11 October 2017, serving that report. These documents were not in evidence, and there was no attempt to put them into evidence, at the arbitration hearing. Westpac submits that they should be admitted as “new evidence”. Westpac submits that the third report:
“… ought to have been considered by the Arbitrator at the arbitration as, without it, the Arbitrator did not have the complete opinion of Dr Vickery. In the absence of that supplementary report, the Respondent submits, both parties are prejudiced in these proceedings as the Arbitrator has based his final determination on a conclusion that was, in fact, inconsistent with the opinion of Dr Vickery, on which substantial components of the Arbitrator’s reasons are based.”[26]
[26] Westpac’s submissions, [60].
Westpac submits the matter should be remitted for re-determination “in accordance with all of the available evidence”, including the third report.[27]
[27] Westpac’s submissions, [64].

FRESH EVIDENCE

It is appropriate, at the outset, to deal with Westpac’s application to admit fresh evidence. It involves three documents:
(a)    An email from Westpac’s solicitors to Mr Harding’s solicitors dated 14 September 2017, enclosing by way of service a “supplementary report by Dr Vickery”. It stated that Westpac intended to rely on the report in the proceedings. I infer the report enclosed with this email was that dated 30 August 2017.
(b)    An email from Westpac’s solicitors to Mr Harding’s solicitors dated 11 October 2017, enclosing by way of service a “supplementary report by Dr Vickery dated 5 October 2017 [the third report] and received by us on 11 October 2017”. It stated that Westpac intended to “seek leave to tender and rely” on the third report at the arbitration hearing on 17 October 2017.
(c)    The third report.
Dr Vickery was a psychiatrist qualified by Westpac, who examined Mr Harding on 3 April 2017. He reported to Westpac on that date. He also reported to Westpac’s solicitors on 30 August 2017 and 5 October 2017 (the third report) responding to requests from the solicitors for supplementary reports, answering various questions. At the hearing, Westpac relied on the report dated 3 April 2017, and Mr Harding relied on the report dated 30 August 2017. Neither party sought to rely on the third report.
In his report dated 3 April 2017, Dr Vickery said that Mr Harding was “fit to return to employment for up to twelve hours a week”. In his report dated 30 August 2017, after being provided with some lay statements and copies of treating reports from Dr Enright, Dr Jacobson and Mr Mueller, Dr Vickery said “Mr Harding no longer remains incapacitated as a result of his injury as his symptoms have generally abated”. Dr Vickery referred to a passage from Mr Mueller’s report dated 29 June 2017, and said “I would expect his fitness to have improved and that he is currently fit for pre-injury duties.”[28] This report was actually tendered in Mr Harding’s case. The motivation for Mr Harding to do this would appear to have been Dr Vickery’s view that:
“… Mr Harding’s injury was not wholly or predominantly caused by reasonable action taken by his employer with respect to restructure, performance rating/appraisal and his lack of receiving a bonus”.
[28] Dr Vickery’s report dated 30 August 2017, p 2.
This view was potentially fatal to Westpac’s defence based on s 11A(1) of the 1987 Act.
Dr Vickery, in the third report, described Mr Harding as suffering from Generalised Anxiety Disorder, which Dr Vickery regarded as “primarily constitutional in nature”. He said that Mr Harding’s “psychopathology in 2016 is consistent with an Adjustment Disorder it arose in the context of a pre-existing constitutional disorder which identifies the preferred DSMIV/5 diagnosis as Generalised Anxiety Disorder”[29]. Dr Vickery said of this disorder:
“The available research demonstrates that discrete episodes of anxiety are precipitated by external stressors however the ongoing chronic incapacity arising from excessive anxiety is primarily related to constitutional vulnerability factors.”[30]
[29] Dr Vickery’s report dated 5 October 2017, p 3.
[30] Dr Vickery’s report dated 5 October 2017, p 4.

Westpac’s Submissions

Westpac’s submissions state that the fresh evidence was not relied on by Mr Harding in the proceedings, in spite of his reliance on Dr Vickery’s report dated 30 August 2017.
Westpac submits that the fresh evidence was not available to the parties before the proceedings concerned. It submits that failure to grant leave would cause substantial injustice, as the opinion of Dr Vickery, on which both parties relied, “will have been misrepresented before the Arbitrator, which could affect the disposition of the present appeal”.[31]
[31] Westpac’s submissions, [57].

Mr Harding’s Submissions

Mr Harding opposes admission of the fresh evidence, submitting the application is inappropriate, in circumstances where Westpac elected not to rely on the third report at the arbitration hearing.

Consideration

Fresh evidence on appeal is governed by s 352(6) of the 1998 Act which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give fresh evidence on appeal.
In CHEP Australia Ltd v Strickland[32] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [30]–[31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. … The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[32] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
Dealing with the exercise of discretion pursuant to s 352(6) of the 1998 Act, Roche DP in Drca v KAB Seating Systems Pty Ltd[33] said:
“The legal profession is reminded, yet again, that it will only be in the most exceptional case where a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration, as if the arbitration was merely a preliminary hearing.” (emphasis in original)
[33] [2015] NSWWCCPD 10 (Drca), [28].
The third report was available to Westpac, through its solicitors, from 11 October 2017. This was six days prior to the arbitration hearing. It was served on Mr Harding’s solicitors by email on 11 October 2017, accompanied by advice that leave would be sought by Westpac to rely on it at the hearing. The transcript does not indicate that the third report was referred to by either party at the arbitration hearing. It does not appear that any attempt was made to tender it. There is no explanation going to why Westpac did not seek to tender the third report at that time, or why it was obtained at such a late stage in the proceedings. The first of the threshold tests in s 352(6) is not satisfied.
The second of the threshold tests in s 352(6) involves satisfaction that a different result would emerge if the evidence were taken into account. Westpac submits:
“… failure to grant leave would cause substantial injustice … as the opinion of Dr Vickery on which the Appellant and the Respondent relies will have been misrepresented before the Arbitrator, which could affect the disposition of the present appeal.”[34]
[34] Westpac’s submissions, [57].
The basis of the assertion of misrepresentation is not clearly explained. As a general proposition, it is appropriate, if a medical practitioner has written a number of reports, that his or her reports be tendered in their entirety. It is necessary that the doctor’s reports be read together.[35] In the current circumstances, only two of Dr Vickery’s three reports were in evidence. Westpac, in its submissions, says that Mr Harding did not rely on the third report, notwithstanding his reliance on the report dated 30 August 2017.[36] Why this deficiency should be attributed to Mr Harding is unclear. Westpac (on its own account and through its solicitors) commissioned all of Dr Vickery’s reports. It relied on the first of these. It served the second of them, although it was Mr Harding who ultimately relied on that report. Westpac was in possession of the third report, served it, and gave notice to Mr Harding that it would seek to rely on it at the arbitration hearing. The transcript does not suggest that it then sought to do so, nor is there any explanation of this in its submissions.
[35] Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 at [70], citing Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399, [92].
[36] Westpac’s submissions, [6].
In any event, Westpac does not submit that the second of the threshold tests in s 352(6), as explained in Strickland, is satisfied. The highest that its submissions put the impact of the third report, is that it “could affect the disposition of the present appeal”. This falls well short of establishing that the result would be different, if the third report were admitted. In Strickland, the proposition that the second threshold test “will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so” was specifically rejected.[37] There is no analysis in Westpac’s submissions, going to how admission of the third report would lead to a different result.
[37] Strickland, [30]–[31].
The fresh evidence the subject of this application also includes two emails, serving Dr Vickery’s two supplementary reports. The two emails were clearly available to Westpac prior to hearing of the arbitral proceedings. Those documents cannot, independently of the third report, satisfy the second threshold test. It is not submitted that they do. The above discussion applies also when the third report and the two emails are considered together.
The threshold tests in s 352(6) are not satisfied, and the application to rely on fresh evidence is refused.
If Westpac had satisfied one of the threshold tests in s 352(6) I would not, in any event, have been persuaded that the fresh evidence should be admitted, in the exercise of discretion. The fresh evidence was, at the time of the arbitration hearing, in the possession of Westpac, which had served the third report and given notice that it proposed relying on it. It could have sought to rely on the report (and the other documents the subject of this application) at the arbitration hearing. It did not, and there is no satisfactory explanation for this. Westpac submits that, on this appeal, I may be satisfied that neither party relied on the additional evidence, due to “the report being adduced in close proximity to the conciliation and arbitration”.[38] There is no evidence in support of that submission, and no explanation of why that should be so.
[38] Westpac’s submissions, [62]–[63].

GROUNDS NOS 1 – 3

These grounds go to whether the Arbitrator erred in how he dealt with the issue of incapacity, in light of the position taken by the parties, in Westpac’s Reply, and the parties’ submissions at the arbitration hearing. It is convenient to deal with them together.

Mr Harding’s Submissions

Mr Harding submits that the dispute between the parties was “as recorded in the section 74 notice and at Part 3 of the Reply”. That dispute went to the extent of the partial incapacity, not to whether Mr Harding was incapacitated at all. Mr Harding submits the Arbitrator “ventured into terrain that was not open to him”, in determining whether Mr Harding had ceased to be incapacitated, when Westpac at no time contended this.[39] Westpac’s submission, through its counsel at the arbitration hearing, was that Mr Harding’s working capacity was 12 hours per week. This concession “was simply ignored by the Arbitrator”. Whether Mr Harding was fit for pre-injury duties after 30 August 2017 was at no stage raised by Westpac, as a basis on which the dispute could be determined.[40] It is submitted that the Arbitrator had no jurisdiction to determine the matter on a basis beyond the issues before him.[41]
[39] Mr Harding’s submissions, 2.9(1), p 4.
[40] Mr Harding’s submissions, 2.9(2), pp 4–5.
[41] Mr Harding’s submissions, 2.9(3), p 5.
Mr Harding submits that, if Westpac wished to raise whether Mr Harding had ceased to be incapacitated, it would have needed to make an application pursuant to s 289A of the 1998 Act, to add this as an issue. This it did not do. It did not conduct its case at the arbitration hearing on that basis.

Westpac’s Submissions

Westpac submits that its Reply was filed on 25 August 2017. Dr Vickery’s supplementary report, in which he expressed the view that Mr Harding was “currently fit for pre-injury duties”,[42] was dated 30 August 2017, and served on 14 September 2017. Westpac submits this report was admitted in the proceedings. It “raised an issue as regards [Mr Harding’s] capacity for work”, and supported the proposition that Mr Harding was “capable of returning to his pre-injury duties”. Whether Mr Harding was incapacitated was “in dispute between the parties”, the Arbitrator did not err in deciding that he was capable of returning to his pre-injury duties.[43] Westpac quotes from Far West Area Health Service v Radford[44] in support of this submission.
[42] Dr Vickery’s report dated 30 August 2017, p 2.
[43] Westpac’s submissions, [17]–[19].
[44] [2003] NSWWCCPD 10 (Radford), [22]–[25].

Consideration

The decision of Fleming DP (as she then was) in Radford has been frequently applied in the Commission.[45] The Deputy President said:
“There are a number of ways in which the issues between the parties to a dispute lodged in the Commission are defined, without the need for formal pleadings. Firstly, they should be clearly articulated in the Application and Reply. Second, the identification and elucidation of the key issues in dispute are the primary functions of the Arbitrator and should occur at the first telephone conference between the parties, as set out in the Registrar’s Guideline to the Conciliation and Arbitration Process in the Commission. At this early stage the Arbitrator also reviews the evidence of each party relevant to the issues. In many cases the issues will be narrowed, with some resolved by conciliation, so that the course of the proceedings is directed only to those issues truly remaining in dispute. Third, the parties have a further opportunity to identify and narrow the issues in the informal environment of the conciliation and arbitration hearing. These processes essentially fulfill the same function as formal pleadings while at the same time being more accessible and not disadvantaging the self-represented person unable to prepare formal pleading documents.”[46]
[45] See for example Woolworths Ltd v Wagg [2017] NSWWCCPD 13, [96]; Rinker Group Ltd v Mackell (No.2) [2009] NSWWCCPD 97, [241]; BHP Billiton Ltd v Bourke [2009] NSWWCCPD 117; 7 DDCR 535, [58].
[46] Radford, [25].
Radford is also authority for the proposition that a party is entitled to “notice of the case against it and the opportunity to respond to it”.[47] The Commission has an obligation “to act in accordance with the obligations of procedural fairness and natural justice”.[48]
[47] Radford, [34].
[48] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421, [91].
Section 289A of the 1998 Act provides:
“289A   Further restrictions as to when a dispute can be referred to Commission
(1)     A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if:
(a)it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b)it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)     Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
Westpac’s s 74 notice, dated 20 April 2017, said that it disputed “[w]hether, if you have sustained an injury you have total or partial incapacity as a result of that injury for the purposes of s 33 of the 1987 Act”.[49] At another passage in the notice it said that it accepted “Dr Vickery’s assessment that you are capable of returning to work for 12 hours per week”.[50] The earlier of these passages, although it lacked precision, was consistent with disputing whether Mr Harding suffered incapacity, either total or partial. It was also consistent with Westpac saying that there was an issue regarding whether incapacity was total or partial.
[49] ARD, p 2.
[50] ARD, p 6.
Section 74(2)(a) of the 1998 Act provides that the notice disputing liability must contain:
“a concise and readily understandable statement of the reason the insurer disputes liability and of the issues relevant to the decision (indicating, in the case of a claim for compensation, any provision of the workers compensation legislation on which the insurer relies to dispute liability),”
Reading the notice as a whole, having regard to the concession in it, and having regard to the requirements of s 74 of the 1998 Act, Westpac’s notice did not raise, in a concise and readily understandable statement, an issue regarding whether partial incapacity had ceased. The Reply disputed Mr Harding’s weekly entitlement pursuant to s 33 of the 1987 Act, referring to Westpac’s alleged defence which relied on s 11A(1). It said that Westpac did not dispute the existence of partial incapacity as a result of the injury.
Westpac’s evidence, that Mr Harding had become fit for his pre-injury duties, post-dated the s 74 notice and Reply. Westpac’s submissions proceed on the basis that service of the report dated 30 August 2017, which contained that opinion, was of itself sufficient to put the issue in dispute between the parties. In Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services[51] Roche DP referred to the requirements of a s 74 notice:
“Attaching a document to the section 74 notice and leaving it to the worker to work out exactly which issues are disputed does not satisfy those obligations. A section 74 notice must state in plain language, in the body of the document, the reason the insurer disputes liability and the issues relevant to that decision. An obscure reference to a document attached to the notice, but dealing with a different issue to that identified in the notice, is not sufficient.”[52]
[51] [2007] NSWWCCPD 227; 6 DDCR 488 (Mateus).
[52] Mateus, [45].
Section 289A of the 1998 Act restricts the issues which can be referred to the Commission for determination, to those that have been “previously notified as disputed”. What is “previously notified as disputed” is described in s 289A(2). A dispute regarding whether Mr Harding suffered from continuing incapacity as a result of injury was not “previously notified as disputed”. As a consequence, the Commission was precluded from hearing or otherwise dealing with such a dispute, by s 289A(3). There is provision in s 289A(4) for “previously unnotified matters” to be dealt with, if “it is in the interests of justice to do so”. No application was made to the Arbitrator, pursuant to s 289A(4), to deal with such an issue. It follows that Mr Harding’s submission is correct, the Arbitrator lacked jurisdiction to determine the unnotified dispute going to whether incapacity had ceased. This is sufficient to deal with Grounds Nos 1 and 2, which are made out.
Ground No 3 also is upheld. The issue of incapacity was decided on a basis outside the submissions of the parties. The Reply conceded the existence of partial incapacity as a result of Mr Harding’s psychological injury.[53] Westpac’s submissions at the arbitration hearing were consistent with this. Referring to Dr Vickery’s report dated 3 April 2017, it was submitted on Westpac’s behalf:
“In those circumstances we’d say there’s a partial incapacity – there’s evidence that there’s a partial incapacity from 3 April 2017 of at least 12 hours a week and given the applicant’s level of functioning if you allowed an ability to earn of 12 hours a week but with due regard to the applicant’s skills and the industry in which he worked you’d easily be able to justify a finding of a capacity to generate income in the order of $500 a week such that the weekly compensation entitlement with reference to the PIAWE would be reduced accordingly from April of 2017. The relevant date being 3 April 2017 which is when the applicant saw Dr Vickery.”[54]
[53] Reply, Pt 3 at [4].
[54] T 16.7–18.
Westpac did not submit that incapacity had ceased, or that the weekly compensation awarded (if Mr Harding succeeded on the s 11A(1) issue) should be only for a closed period. Mr Brennan, after submitting on the s 11A(1) issue, sought an opportunity to take instructions from Mr Harding “in relation to the issue of incapacity”. He then submitted:
“MR BRENNAN: My instructions in relation to incapacity are to accept my friend’s submission as to the dollars, the ability to earn but not from the date of Vickery’s report, rather from the date of Mueller’s report which I will - - -

ARBITRATOR: 29 June.

MR BRENNAN: Yes. Unless there’s anything else, Mr Arbitrator, they’re my submissions.”[55]
[55] T 34.13–22.

It will be observed that Mr Harding, following his acceptance of Westpac’s position on the level of partial incapacity, made no further submissions on that issue. Westpac’s submissions in reply, at the arbitration hearing, did not suggest that the above acceptance involved any misstatement of its position on the topic of ‘incapacity’.[56] Westpac ran its case on this issue, on the basis that Mr Harding’s ability to earn in suitable employment, for the purposes of s 37 of the 1987 Act, was $500 per week, based on an ability to work 12 hours per week. Mr Harding did not make a submission to the contrary. The Arbitrator did not indicate to the parties that he was considering a finding inconsistent with the parties’ submissions on this topic.
[56] T 34.26–36.16.
Wrigley Co Pty Ltd v Holland[57] involved an award of weekly compensation under the provisions of the former s 40 of the 1987 Act, which was an equivalent provision (in general terms) to s 37 of the 1987 Act in its current form. The dispute included quantification of the worker’s weekly entitlement, and her ability to earn in some suitable employment was in issue. The employer submitted that the weekly award, on the basis of partial incapacity, should be under $50 per week, the worker submitted it should be at least $100 a week. The trial judge awarded figures ranging from $272.60 per week to $397.41 per week. Handley JA (Hodgson JA and Ipp AJA agreeing) said:
“However in my judgment the award should be set aside in any event. The submission by counsel for the worker that the award should be $100 per week, or at least $100 per week, was something that the Judge could not properly ignore. He was not bound by this figure, but he said nothing during argument to indicate that he was considering going outside this claim and making awards, initially for 150% more than asked for, and in the final result for nearly 300% more.”[58]
And:
“The Judge also denied procedural fairness to the employer whose counsel had no opportunity to deal in address with the Judge’s reasons for disregarding the submission of counsel for the worker and awarding so much more than had been sought on her behalf. Compare Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. In that case the trial Judge, during final addresses, stopped counsel for the plaintiff addressing further on his client’s credit, but in his reserved judgment found against the plaintiff on that issue. The High Court ordered a new trial because there had been a denial of natural justice affecting the entitlement of a party to make submissions on an issue of fact.”[59]
[57] [2002] NSWCA 109; 23 NSWCCR 463 (Holland).
[58] Holland, [15].
[59] Holland, [17].

In Seltsam Pty Ltd v Ghaleb,[60] Ipp JA (Mason P agreeing), after reviewing authorities which included Holland, said:
“These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.”[61]
[60] [2005] NSWCA 208; 3 DDCR 1 (Ghaleb).
[61] Ghaleb, [78]. See also Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45; 10 DDCR 290, [75]; Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17, [82]–[84].
The Arbitrator found the amount that Mr Harding was able to earn in suitable employment, from 4 April 2017 to 30 August 2017, was $750 per week.[62] This figure was greater than that submitted by the parties. The Arbitrator found that, after 30 August 2017, Mr Harding was “fit to earn his pre-injury salary”[63], which closed his award for weekly compensation.
[62] Decision, [190].
[63] Decision, [188].
The Arbitrator gave the parties no indication, during the running of the arbitration hearing, that he was considering making findings outside the submissions of both parties. The Arbitrator’s reasons summarised the submissions of the parties, but did not include in this summary the submissions on quantum of the weekly entitlement.[64] The Arbitrator’s reasons, dealing with his findings on Mr Harding’s ability to earn, made no reference to Westpac’s concession on Mr Harding’s ability to earn. Mr Harding correctly submits that the concession “was simply ignored”.[65]
[64] Decision, [122]–[134].
[65] Mr Harding’s submissions, 2.9(2), p 5.
The Arbitrator was not obliged to decide this issue consistently with the submissions. However, Westpac’s concession was a relevant matter, which should have been considered. It was something the Arbitrator “could not properly ignore”.[66] In Waterways Authority v Fitzgibbon[67] Hayne J (McHugh and Gummow JJ agreeing) said:
“In the present case, however, reference to the ‘sufficiency’ of the primary judge’s reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”[68]
[66] Holland, [15].
[67] [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 (Fitzgibbon).
[68] Fitzgibbon, [130]. See also Arnold v Holiday Coast Transportation Services Pty Ltd [2012] NSWWCCPD 13, [99].
The failure to deal with the concession constitutes error in fact finding. The concession was part of the material relevant to the issue of Mr Harding’s incapacity and ability to earn, and should have been examined and dealt with.
Additionally, the Arbitrator’s failure to indicate to the parties that he was considering making a factual finding on the issue, going well outside the submissions, involved a denial of procedural fairness, consistent with the authorities referred to above.
For the above reasons, Ground No 3 is made out.

WESTPAC’S GROUNDS OF APPEAL

Westpac’s Submissions

Westpac refers to the material the subject of the application to admit fresh evidence. It submits the third report “ought to have been considered by the Arbitrator at the arbitration”. Without it, the Arbitrator “did not have the complete opinion of Dr Vickery”. Westpac submits “both parties are prejudiced” as the decision was based “on a conclusion … inconsistent with the opinion of Dr Vickery”. Westpac submits that “as a matter of fairness to both parties”, the matter should be remitted for re-determination on all of the available evidence, including the third report.[69]
[69] Westpac’s submissions, [60]–[64].
In its summary of its submissions dealing with this ground, Westpac submits:
“The Respondent submits, in any event, that new evidence has been served and relied on in the proceedings but was not taken into consideration by the Arbitrator. The Respondent submits that such a failure causes prejudice to both parties and, in all the circumstances, the matter should be remitted back to Arbitrator Wynyard for redetermination.”[70]
[70] Westpac’s submissions, [68].

Mr Harding’s Submissions

It is noted above that Mr Harding opposes Westpac being permitted to “advance its case” on the basis of a report which it elected not to rely on at the arbitration hearing.[71]
[71] Mr Harding’s submissions in reply, p 5.

Consideration

The Rules and procedures in the Commission do not have provision for notices of contention or cross appeals. In BlueScope Steel Ltd v Markovski Roche DP said:
“12. In this case, having decided that BlueScope had not established that the injury had been wholly or predominantly caused by action with respect to transfer, it was not necessary for the Arbitrator to consider whether that action was reasonable. However, having considered that issue, and having found that the action with respect to transfer was not unreasonable, Mr Markovski has argued that, if BlueScope’s appeal against the causation issue succeeds, he is still entitled to retain the award in his favour because the Arbitrator erred on the reasonableness issue. BlueScope has opposed Mr Markovski arguing the reasonableness issue, primarily because it is not an issue in ‘reply’ to the appeal.
13. While there is no provision for a cross appeal in the Commission’s rules, proceedings in the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits (s 354(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)). In addition, the Commission has a statutory obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 354(3) of the 1998 Act). Moreover, a respondent to an appeal can, on appeal, support the decision below on any good legal ground appearing on the evidence (David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 at 420E–421D; 426F; 428G). That is effectively what Mr Markovski is seeking to do, in the event that BlueScope succeeds on the causation issue.”[72]
[72] [2013] NSWWCCPD 69 (Markovski), [12]-[13].
I followed Markovski in Navitas English Pty Ltd v Trinh.[73] Procedurally, the stance that Westpac (the respondent to this appeal) seeks to take is somewhat different to that in cases such as Markovski, where the respondent to an appeal sought to defend the first instance decision, on a basis other than that on which it was decided. Westpac seeks to defend the result at first instance (as it is perfectly entitled to do) arguing that all of Mr Harding’s grounds of appeal should fail. However Westpac, in the alternative, then itself attacks the decision at first instance. It argues that the matter should be remitted, to allow the consideration of evidence (the third report) which it did not seek to rely on before the Arbitrator. I have reservations regarding the appropriateness of this course. Westpac’s submissions, which it puts “in the alternative”, do not address this procedural issue. Westpac’s alternative submissions fail on their merits, for reasons which follow. This appeal is not a suitable vehicle to deal with whether the course adopted by Westpac in this regard is procedurally appropriate.
[73] [2017] NSWWCCPD 52, [27].
The submission that the Arbitrator ought to have considered the third report, in circumstances where it was not before him as neither party had sought to rely on it, is misconceived. Plainly, the Arbitrator could not have considered evidence which not only was not the subject of argument or submissions, but which was not placed before him. It is not error to fail to consider an issue not argued: Dick’s Diesel Pty Ltd v Caddaye,[74] Boele v Rinbac Pty Ltd.[75] It is not an error of law to fail to refer to a matter not raised: Brambles Industries Ltd v Bell.[76] In Mamo v Surace McColl JA (Ward JA and Tobias AJA agreeing) said:
“A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 (at 7–8) per Gibbs CJ, Wilson, Brennan and Dawson JJ; approving University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 (at 483); Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598.”[77]
[74] [2015] NSWWCCPD 68, [68].
[75] [2014] NSWCA 451, [14], [90], [100].
[76] [2010] NSWCA 162; 8 DDCR 111, [22] and [30].
[77] [2014] NSWCA 58, [75].
It is apposite to quote from the remarks of Roche AP in Super Retail Group Services Pty Ltd v Uelese:
“As the Commission has attempted to explain in dozens of decisions, and as s 352(5) makes express, appeals against a decision by an Arbitrator are not a ‘review or new hearing’. Nor are they a rehearing. They are restricted to the identification and correction of error. Arbitrations are not a trial run where the parties can await the outcome and then decide to run new issues on appeal.”[78]
[78] [2016] NSWWCCPD 4, [92].
Westpac submits that the third report “has been served and relied on in the proceedings”. It was served. It was not relied on before the Arbitrator, neither party sought to do so. Westpac sought to rely on the third report on this appeal, but that application is refused, for reasons given above. The Arbitrator did not err in failing to deal with evidence which was not before him, and to which no submissions or arguments were directed.

DISPOSITION OF THE APPEAL

Mr Harding’s grounds establish appealable error. The identified error involves, as one of its elements, a denial of procedural fairness. It could not be concluded that “a properly conducted trial could not possibly have produced a different result”.[79] Having regard to the relief which Mr Harding seeks on this appeal, there is no issue between the parties, going to the weekly entitlement prior to 30 August 2017. It is necessary that the Arbitrator’s decision, dealing with the weekly entitlement from 30 August 2017, be revoked. It is unnecessary to deal with the balance of the grounds of appeal.
[79] Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, [16]. See also Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561, [10].
The issues remaining between the parties fall within a small compass. They involve quantification of Mr Harding’s weekly entitlement, pursuant to s 37 of the 1987 Act, from 30 August 2017. There is a discretion pursuant to s 352(7) of the 1998 Act, to make a new decision in place of that part of the Arbitrator’s decision which is revoked, or to remit the matter. This is a matter within my “reasonable discretion … having regard to the overriding objectives of the legislation in providing a fair, cost-effective and timely means of resolving workers compensation claims”.[80]
[80] Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 (Trevarrow), [28].
Mr Harding submits that, rather than ending on 30 August 2017, the weekly award of $919.92 should be on a continuing basis.[81] Westpac submits that the matter should be remitted for re-determination by Arbitrator Wynyard or another Arbitrator. The basis of this submission would appear to be Westpac’s alternative submission, based on its application to admit fresh evidence pursuant to s 352(6) of the 1998 Act. The issues raised by Westpac “in the alternative”, have been rejected for reasons given above. The remaining issues fall within small compass, and it is desirable that I re-determine them in the circumstances.[82] I have before me the evidence which was before the Arbitrator, transcript of the submissions before the Arbitrator, and the parties’ submissions on this appeal. I am in as good a position as the Arbitrator was, to decide the remaining issues on quantum. It is appropriate that I do so.

Re-Determination

[81] Mr Harding’s submissions, [2.7], [2.9(11)] and [2.11].

[82] Trevarrow, [28] and [37].

Mr Harding’s Submissions on the Relief Sought

Mr Harding’s submissions on appeal do not challenge the quantum of the weekly award up to 30 August 2017; they simply seek that the award continue, rather than closing at 30 August 2017.

Westpac’s Submissions on the Relief Sought

Westpac submits that the grounds of appeal (I infer Mr Harding’s) should be dismissed, and the matter should be remitted to Arbitrator Wynyard or another Arbitrator for re-determination. This is inconsistent with my conclusions regarding Mr Harding’s grounds of appeal, and the “Submissions in the alternative” raised by Westpac. Westpac does not make separate submissions going to the approach to be taken, if Mr Harding’s appeal succeeds and its submissions in the alternative do not.

Medical Evidence

Dr Enright, a general practitioner, reported on 29 May 2017. He referred to consultations with Mr Harding from 28 November 2016 to 18 May 2017. He described Mr Harding’s work capacity:
“Current capacity for employment is nil in the current medicolegal situation in which he is now placed. However on a longer term basis, Mr Harding has demonstrated an excellent skill set in the financial world and proven capacity working in a number of financial institutions, such that pending successful resolution of the current issue, he may be able to consider re-employment in his field of expertise.” (emphasis in original).[83]
[83] ARD, p 68.
By way of prognosis, Dr Enright referred to Mr Harding’s skill set, family support, diligence to diet and exercise, and said “there are positive signs for the longer term”. There are a series of certificates from Dr Enright, which describe Mr Harding as “unfit for work” or “having no current work capacity for any employment”, covering the period from 29 November 2016 to 14 July 2017. The most recent of these certificates was dated 15 June 2017.
Mr Mueller, psychologist, reported on 29 June 2017. He initially saw Mr Harding on 15 December 2016, on referral from his general practitioner. He described him as “brittle, anxious and depressed”, tearful and embarrassed. Mr Mueller diagnosed “Adjustment Disorder (mixed Anxiety and Depression)”.[84] Asked his opinion on Mr Harding’s current capacity for employment, Mr Mueller said that Mr Harding was:
“… more resilient now and his symptoms have generally abated. However, he remains traumatised by his experience detailed above. He is still emotional and anxious at times and harbours fears about returning to his current workplace. He has no desire to work with his managers and is fearful of doing so.
In my opinion, Mr Harding is fit to return to work, on a graduated basis, in a role commensurate with his skills and experience. However, I do not believe he is fit to return to the current workplace with the same management.”[85]
[84] ARD, pp 69–70.
[85] ARD, p 72.
Mr Mueller expressed the view that Mr Harding’s symptoms would “continue to abate and that he will make a full recovery once the stressors outlined in this report are removed”. He considered Mr Harding would need “psychological support for the next six to twelve months”.[86] There are a series of notes from Mr Mueller’s file, recording consultations on 15 December 2017, 10 January 2017, 14 February 2017, 28 February 2017 and 21 March 2017. The last of these recorded in part, “Thoughts about going back: Don’t feel up to it – Can’t contemplate at this stage; Feels anxious and fearful of seeing them.”[87]
[86] ARD, p 72.
[87] Reply, p 16.
Dr Jacobson, psychiatrist, reported on 10 July 2017. He referred to psychiatric assessments conducted on 26 May 2017 and 14 June 2017. He said that Mr Harding’s chronic condition fulfilled the diagnostic criteria for Generalised anxiety disorder. He recommended ongoing psychological therapy, continued use of antidepressant medication, and psychiatric review. Dr Jacobson said that Mr Harding “does not have the capacity at present to work to an equivalent level seen prior to his injury”. He said that “[w]ith treatment of his anxiety and resolution of work based stress he will return to his baseline functional capacity.”[88]
[88] ARD, p 76.
Dr Vickery saw Mr Harding on 3 April 2017, and reported on the same date. He diagnosed “Adjustment Disorder”. He also referred to the current condition as “work related reactive depression and anxiety”, and said “employment is the substantial/main contributing factor”.[89] He said that Mr Harding was “fit to return to employment for up to twelve hours a week”. He said “A gradual return-to-work would be more appropriate for Mr Harding at this stage for initially three hours four days a week and increasing to full hours over four weeks”.[90]
[89] Reply, pp 6 & 8.
[90] Reply, pp 9–10.
Dr Vickery furnished a supplementary report dated 30 August 2017. This did not involve a re-examination. The doctor responded to a letter from Westpac’s solicitors forwarding reports from treating practitioners and some witness statements. Dr Vickery was specifically asked to consider the reports of Dr Enright, Mr Mueller and Dr Jacobson referred to respectively at [78]–[79], [80]–[81] and [82] above. He said that, having regard to Mr Mueller’s report, he would expect Mr Harding’s “fitness to have improved and that he is currently fit for pre-injury duties”.[91]
[91] Mr Harding’s Application to Admit Late Documents (AALD), p 2.

Concessions

The relevant submissions of the parties at the arbitration hearing, dealing with incapacity, are referred to at [54]–[56] above. Westpac adopted the position that, partially incapacitated, Mr Harding was capable of earning $500 for working 12 hours per week. Mr Harding agreed with that submission. The Arbitrator, when assessing the s 37 entitlement, assessed the weekly amount Mr Harding was able to earn in ‘suitable employment’ at $750. This yielded a weekly entitlement, from 4 April 2017, of $919.92. Mr Harding’s submissions, on this appeal, accept that his weekly entitlement beyond 30 August 2017 should be $919.92, that is, a figure consistent with an ability to earn of $750 per week. Mr Harding’s position in his submissions is modified on appeal, to this extent.

Consideration

Mr Harding’s submissions on this appeal make the point that Dr Vickery did not examine Mr Harding after 3 April 2017. Dr Vickery, it is submitted, “lacked the necessary evidentiary foundation” to offer an opinion on Mr Harding’s condition and work capacity, as at 30 August 2017. Dr Jacobson and Mr Mueller both examined Mr Harding after Dr Vickery. Mr Harding submits that their evidence did not confirm resolution of his condition.
Dr Vickery’s opinion on work capacity, in his report dated 30 August 2017, was based largely on the report of Mr Mueller,[92] and the psychologist’s observation that Mr Harding had “improved”, was “more resilient”, and that “his symptoms have generally abated”.[93] The fact that Dr Vickery’s report dated 30 August 2017 was not associated with any up-to-date clinical assessment of Mr Harding is a matter which goes to its weight. Dr Vickery, after describing the observations by Mr Mueller, said “I would expect his fitness to have improved and that he is currently fit for pre-injury duties”.
[92] AALD, p 2.
[93] ARD, p 72.
Mr Mueller did not express the same view. He said Mr Harding “remains traumatised by his experience … is still emotional and anxious at times and harbours fears about returning to his current workplace with the same management”. Mr Harding was “fearful” of working with his managers. Mr Mueller said that Mr Harding was fit to return to work “on a graduated basis”, but not to “return to the current workplace with the same management”.[94] Mr Harding’s submissions make the point that he was not afforded a graduated return to work.
[94] ARD, p 72.

Dr Jacobson also considered that Mr Harding did “not have the capacity at present to work to an equivalent level seen prior to his injury”.[95] In his report, Dr Enright said that Mr Harding’s capacity for employment was “nil”, which is consistent with his certificates, referred to at [78] above.
[95] ARD, p 76.
Dr Vickery initially said that Mr Harding had a capacity to work for 12 hours per week. He then increased this to a capacity to carry out pre-injury duties, without seeing Mr Harding again, on the basis of some of the comments in Mr Mueller’s report. Overall, the views of the treating doctors and psychologist are, in my view, entitled to greater weight than that of Dr Vickery, as they had greater opportunity to assess Mr Harding’s condition and capacity. The views of Dr Jacobson and Mr Mueller are consistent with continuing partial incapacity, and an inability to return to pre-injury employment. I prefer the opinion of those practitioners, to that of Dr Vickery in his report dated 30 August 2017. Mr Harding accepted, in his submissions at the arbitration hearing, that he was capable of working 10 hours per week, consistent with Dr Vickery’s original opinion, in his report dated 3 April 2017. There is no evidence, other than that in Dr Vickery’s report dated 30 August 2017, which I do not accept, that that partial incapacity has come to an end.
The submissions of the parties, as modified by Mr Harding’s submissions on this appeal, are consistent with an ability to earn the sum of $750 per week, in suitable employment. On the basis of the views of the treating practitioners overall, and the submissions of both parties, this is the appropriate finding of Mr Harding’s ability to earn in suitable employment, since 30 August 2017.

DECISION

Sub-paragraph [1(c)] of the Certificate of Determination dated 17 November 2017 is revoked, and the following order is made in its place:
“(c) From 4 April 2017 to date and continuing, at the rate of $919.92 pursuant to s 37.”
The balance of the Certificate of Determination is confirmed.

Michael Snell

Deputy President

28 February 2018