Heyworth v VMWare Australia Pty Limited - [2019] NSWWCCPD 64

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Heyworth v VMWare Australia Pty Limited [2019] NSWWCCPD 64
APPELLANT:	David Heyworth
RESPONDENT:	VMWare Pty Limited
INSURER:	AAI Ltd t/as GIO
FILE NUMBER:	A1-134/19
ARBITRATOR:	Mr N Read
DATE OF ARBITRATOR’S DECISION:	24 April 2019
DATE OF APPEAL DECISION:	11 December 2019
SUBJECT MATTER OF DECISION:	Whether the Arbitrator, having found injury, was correct to find that the appellant had not made out a case of resultant incapacity for two closed periods between 1 December 2013 and 2 March 2014 and 1 October 2015 and 18 April 2016
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Morgan, counsel
Stacks Goudkamp
Respondent:
Mr G Young, counsel
Hall & Wilcox
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination of 24 April 2019 is confirmed.

INTRODUCTION

The appellant worker appeals from a decision of an Arbitrator finding that he had not made out a case of incapacity in respect of two closed periods, that is, from 1 December 2013 to 2 March 2014 and from 1 October 2015 to 18 April 2016.
This was a finding that the appellant had not discharged the onus upon him of establishing that during those periods he had “No current work capacity” for the purposes of s 32A of the Workers Compensation Act 1987 (the 1987 Act). The nub of the decision can be refined to saying that the Arbitrator was not persuaded that during either of the periods, the appellant was not able to work either in his pre-injury role or in suitable employment.
The Arbitrator’s decision was against a background of a finding that the appellant had suffered employment injury with the respondent, namely a major depressive disorder and associated symptoms, arising from stress at work.
The appellant’s entitlement to recover from the respondent medical expenses associated with the treatment of his work-related condition was also in contest before the Arbitrator. On that matter he found in favour of the appellant and there is no appeal or cross-appeal from that decision.

BACKGROUND

In respect of the background to this appeal, I do not think it is necessary to do more than mention the following:
(a)    it was not contested that the appellant had sustained the abovementioned injury by way of psychological or psychiatric condition arising out of or in the course of his employment with the respondent;
(b)    the Arbitrator found, in reaching his ultimate decision, that the appellant’s claim was not precluded by the legislative provisions requiring notice of claim and timely claim, and
(c)    the decision that there was no relevant incapacity was a factual one, as the Arbitrator’s decision recognised.[1]
[1] Heyworth v VMWare Australia Pty Ltd [2019] NSWWCC 145 (Reasons), [121].
It has not been suggested in the rival submissions of the parties to this appeal that there was any misconception of the legal approach or standard to be applied in determining whether the appellant was capable of carrying out “suitable employment”: the Arbitrator correctly stated the test and cited relevant authority.[2]
[2] Reasons, [117] citing Wollongong Nursing Home Pty Limited v Dewar [2014] NSWWCCPD 55, [63].
The import of these features of the Arbitrator’s decision and the submissions for and against it, in my view, comes to this: the simple question which is critical to the disposition of this appeal is whether the Arbitrator’s factual decision, expressed in paras [121]–[145], where there is a review of the evidence and comment upon it, displays any error.

THRESHOLD MATTERS

So far as I can see, there is no dispute that the threshold requirements of s 352(3) and (4) of the Workplace Injury Management and Workers Compensation Act 1998 have been met.

ON THE PAPERS

The parties agree that this appeal may be dealt with “on the papers” and have proceeded accordingly. I am satisfied that this is the appropriate course and it is exemplified by the commendable brevity and relevance of the competing written submissions.

FRESH EVIDENCE

Neither party has sought to adduce further evidence upon this appeal.

ISSUES IN DISPUTE

There is only one issue in dispute and it has been stated and refined as above: see para [2]. Was the Arbitrator correct to hold that the appellant had failed to discharge his onus of showing that his employment injury had resulted in incapacity for work during the two periods that made up his claim for weekly payments?

EVIDENCE

The Arbitrator comprehensively reviewed the lay and medical evidence in pp 4–12 of his reasons. Then he returned to certain aspects of the evidence in that part of his reasons which constituted his disposition of the claim: this is the passage of his reasons referred to above at para [7].
It is only necessary to refer to the important parts of the evidence bearing on the appellant’s capacity for work during the two closed periods that made up the claim for weekly benefits.
The appellant was employed by the respondent from December 2012 until July or August 2013.[3] He ceased the performance of duties with the respondent in July 2013 and said that from then until March 2014 he was unfit for work.[4] Thereafter in March 2014 he took up contract work, which was a lesser role than his job with the respondent, with Transport for NSW (TFNSW).[5] It seems that the appellant worked with TFNSW until July 2015 but that there was doubt about the reasons for his cessation of work with TFNSW.
[3] Reasons, [15(a)].
[4] Reasons, [18].
[5] Reasons, [19].
The appellant’s case, supported by his own evidence against a background of medical evidence which did not directly address his fitness to cope with the work, was that his medical condition the product of his injury with the respondent was such that he could not do the job properly and that his employment contract was terminated in July 2015 whereafter he was too ill to work. In September 2015, he went on a family overseas holiday but remained unwell. He found a new job on 18 April 2016, when the second period of claim closed, but he still had continuing symptoms.[6] In this passage of his reasons, the Arbitrator noted that the appellant’s initial engagement with TFNSW was pursuant to a 6-month contract which was renewed on two occasions.[7] Then in paras [36] and [37], the Arbitrator returned to the evidence of the appellant, noting that he said that his line manager at TFNSW, Mr Wallace, was sympathetic to him and allowed him to take days off and work from home at times, but that Mr Wallace moved to another position and that he (the appellant) “… was asked to leave by the Project Director Lead at Transport, even though a contract was just signed”.
[6] Reasons, [18]–[23].
[7] Reasons, [29], [30], [36].
In paras [41]–[43] the Arbitrator noted further evidence, namely that an article in the Northern District Times of 26 March 2014 showed that the appellant had coached his daughter’s football team to victory in a local competition, and also evidence that in October 2014 the appellant gained second place in the City of Ryde’s “Spring Garden Competition”. He noted also the content of documents from TFNSW that were in evidence. They reveal that on 4 July 2014, Mr Wallace reviewed the appellant’s performance as a Lead Product Manager, rating him five out of five for attendance and four out of five for contribution towards the success of the project. The documents showed that he had met deadlines as required and that he was “driven to deliver for customers …”. On this basis Mr Wallace supported an extension of the appellant’s contract. The Arbitrator noted that this documentary evidence contained no indication of days lost from work, no arrangement whereby days could be spent working at home, nor of the termination of the appellant’s contract by TFNSW executive superior to Mr Wallace. (It may be added that the documents contain no mention of any health complaints, but it is fair to say that they do not on their face appear to be documents which would necessarily contain any such information.)
In this same passage of his reasons the Arbitrator noted the content of documents produced by Ampersand, the recruitment company that facilitated the appellant’s employment with TFNSW, which were in evidence. They included pay records which showed that the appellant worked for, or was at least paid by, TFNSW beyond July 2015 to September 2015, when he went on his overseas holiday.
The Arbitrator reviewed the medical evidence, again comprehensively, in paras [44]–[87] of his reasons. Much of the medical evidence was concerned with whether there had been an injury arising out of or in the course of the employment of the appellant by the respondent, that is, whether stress, arising particularly from his dealings with one superior, made him unwell. It is unnecessary to say anything about the evidence on that topic given that “injury” was not ultimately in issue before the Arbitrator and is not in issue now.
However for the sake of completeness, given that the evidence of a psychiatrist, Dr Morse, was obviously regarded as significant by the Arbitrator, it is perhaps desirable to record the unusual deployment of his report.
Prior to the hearing, the appellant sought and was granted leave to rely upon the written report of another psychiatrist, Dr Martin, dated 2 August 2016. The report of Dr Morse dated 14 March 2017 had already been served as part of the appellant’s case. Dr Morse had been brought into the case on a medico-legal basis by the appellant’s solicitors.
The addition of Dr Martin prompted the respondent to complain to the Arbitrator that the appellant was advancing too many reports from doctors in the same speciality and this in turn led to the withdrawal of Dr Morse’s report from the evidence advanced in support of his case. The respondent then indicated its wish to adopt the report as part of its case, and the Arbitrator gave leave to do so, but only upon the basis that the respondent abandon its reliance on another report.[8]
[8] Reasons, [9], [13].
The upshot was that the case went forward to decision with the respondent relying upon a report which had originally been part of the appellant’s case against it.
Apart from the appellant’s own evidence, which was to the effect that he could not work during the relevant periods, there was a considerable body of medical evidence before the Arbitrator which went beyond the “injury” issue, which is not now contentious, to which I have referred. However I think it is fair to say that the bulk of that evidence did not focus directly on the periods of alleged incapacity and that the most direct evidence in relation to them came from Dr Morse, who had written his report without detailed knowledge of the appellant’s period of employment with TFNSW. That is, all Dr Morse appeared to have was the appellant’s history in relation to that, not the documents in which I have earlier adverted above at [16]. At [91] of his reasons, the Arbitrator referred to Dr Morse’s evidence that the appellant was incapacitated between July 2013 and March 2014. Subject to the impact of additional evidence which the doctor had not brought to account, that evidence squarely supported the appellant’s own evidence in respect of the first period of his claim.
Then at [92] of his reasons, the Arbitrator went on to note that in respect of the second period of the appellant’s claim, the evidence of Dr Morse was that it was uncertain how long the appellant was incapacitated after leaving his employment with TFNSW in July 2015. Leaving aside the discrepancy or possible discrepancy between the departure in July or September 2015, this view of Dr Morse’s appeared to proceed upon the basis of an opinion that there was some incapacity throughout the appellant’s period of employment at TFNSW.

THE ARBITRATOR’S REASONS

In adverting above to so much of the evidence as I think is important for present purposes, I have also adverted to parts of the Arbitrator’s reasons.
However, I have endeavoured also to make clear that the critical part of his decision is his finding that the appellant had not discharged the relevant onus upon him, and it is his reasoning to that conclusion which is to be scrutinised against the background of the submissions on this appeal.
At [121] and [122] of his reasons, the Arbitrator focused on the appellant’s resumption of work on 3 March 2014 with TFNSW. He said that it was a common sense proposition that if the appellant could work full time from 3 March 2014, he must have had some capacity for work for some period beforehand. He said: “Capacity to undertake work does not go from ‘no work capacity’ to ‘current work capacity’ on a full-time basis over night.”[9]
[9] Reasons, [122].
Then as to the appellant’s own evidence, the following appears at [123] of the Reasons:
“… There are several features of the [appellant’s] evidence that cause me to doubt his assertion that he was totally incapacitated for work in the periods claimed. Whilst the evidence was not the subject of cross-examination, there is no requirement for it to be accepted …” (citations omitted).
Those features were that the appellant appeared to the Arbitrator to have continued his involvement in recreational and family life “… unabated, contrary to his claims of deterioration”[10] (emphasis added). This was a reference to the girls’ football coaching and prize in the gardening competition. It was possibly also a reference to the family holiday.
[10] Reasons, [124].
The next was what the Arbitrator plainly saw as the paucity of evidence about the appellant’s commencement of work, through the agency of Ampersand, with TFNSW and the lack of any documentary support in the records for the appellant’s evidence as to his difficulties whilst with TFNSW.[11]
[11] Reasons, [125].
The Arbitrator dealt separately with the appellant’s assertion that he had been terminated by TFNSW because of the continuing effects of his employment injury.[12] Whereas he had, I think it is fair to say, taken the first two matters as casting doubt upon the appellant’s evidence rather than completely undermining it, he regarded the documents from TFNSW and, probably, Ampersand, as making this evidence of the appellant “implausible”. The Arbitrator took the view that something like a termination of employment because of difficulty in performing satisfactorily would be documented, and the documents contain no such indication. This was emphasised at Reasons [127].
[12] Reasons, [126].
The Arbitrator then dealt with the second period of the claim, beginning by noting that the reason the period began on 1 October 2016 was obscure.[13] Consistently with what he had said specifically in relation to the first period of claim at Reasons [122], in respect of the second period he said, at Reasons [128] and [132], that in light of his full-time work up to what the Arbitrator took on the strength of the documents to be September 2016, it was implausible that the appellant had no capacity for work starting effectively a month later and that in the absence of evidence explaining why that should be so he, the Arbitrator, doubted “… the [appellant’s] evidence about his work capacity as a whole.”
[13] Reasons, [128].
The Arbitrator returned to this, apparently by way of emphasis, at para [133]. He noted that the medical evidence supported ongoing symptoms, but upon the basis that he had “… significant concerns about the veracity and reliability of the [appellant’s] evidence”. He said, perhaps by way of repetition, that there was no “cogent or compelling evidence that those symptoms impacted on the [appellant’s] capacity to work in any tangible way.” (emphasis added).
Thereafter the Arbitrator at paras [134]–[138] returned to the medical evidence, I think specifically for the purpose of pointing out what he saw as flaws or inadequacies in the evidence of Drs Martin and Cosgrove. This part of the Arbitrator’s reasons is consistent with and indeed depends upon his views as to the import of the documentary evidence including the newspaper articles.

GROUNDS OF APPEAL

There were two grounds of appeal, as follows:
(a) the Arbitrator erred in fact and/or law or in the exercise of his discretion in finding that the appellant had failed to establish any entitlement to weekly compensation in the period 1 December 2013 to 2 March 2014, and
(b) the Arbitrator erred in fact and/or law or in the exercise of his discretion in finding that the appellant had failed to establish any entitlement to weekly compensation in the period 1 October 2015 to 17 April 2016.
The Arbitrator’s decision involved no exercise of discretion or decision in point of law. As he himself said, it was a factual one.

SUBMISSIONS ON APPEAL

In respect of the first period of incapacity, the appellant’s submissions, correctly in my view, identified in para [6] thereof that the Arbitrator felt that the newspaper articles cast doubt on the appellant’s evidence, and went on to say in para [7] that it was an error to make critical credit findings on unexplained or unexplored references in newspaper articles. It is submitted that this approach was not, presumably as a matter of procedural fairness, one the Arbitrator should have taken without alerting the appellant’s legal representatives to his thinking and without an application for cross-examination of the appellant in respect of this material.
The submissions at para [9] went on to suggest that there was an inconsistency between the Arbitrator’s acceptance of the appellant’s symptoms as evidence of injury, yet apparent downplaying of them on the issue of whether they caused relevant incapacity. Further, a specific submission was made at para [11] that for the Arbitrator to say the newspaper articles showed that the appellant was involved in recreation and family life “unabated” was a leap not supported by the material.
Then in respect of the second period, the thrust of the appellant’s written submission is the same.
However, in para [15] of the appellant’s submissions, it is specifically submitted that the Arbitrator failed to have regard to three paragraphs of the appellant’s evidentiary statement of 19 March 2019. With all respect that is not so: para [37] of the Arbitrator’s reasons shows that he had considered this passage of the appellant’s statement.
Paras [16]–[24] of the appellant’s submissions refer to passages in various of the medical reports and medical notes, as offering support for the view that the appellant was incapacitated during this second period, but I think that it is only necessary to read the extracts cited by the appellant to see that none of them involves a direct opinion that there was relevant incapacity in the second period or throughout it, and that for the most part they are concerned with examinations outside the period. They can only extend to the period itself by inference or extrapolation, and do not address the reasoning of the Arbitrator based upon the Ampersand/TFNSW records.
In para [26], the appellant’s submissions repeat that he was denied procedural fairness in the use the Arbitrator made in considering the claim of the two newspaper articles and the submissions go on to say that the same applies to the records of TFNSW and Ampersand.
In response, the respondent’s submissions, unsurprisingly, supported the Arbitrator’s reasons according to their terms.
Then specifically in relation to the first period, in answer to the appellant’s submissions asserting in effect a denial of procedural fairness, the respondent submitted in respect of the newspaper article and media release that the Arbitrator did not place as much weight on them as the appellant contended – presumably meaning that the Arbitrator made no positive finding on the strength of them but regarded them as casting doubt on the appellant’s evidence. The respondent pointed out that the appellant carries the onus of proof; that this was evidentiary material which he was well aware of in advance of the hearing; that he did nothing to explain or contradict it; and it was thus there to be brought to account.

Then in respect of the second period the respondent submitted that the way the TFNSW/Ampersand documents were used by the Arbitrator was unexceptionable, and that the passage in the report of Dr Morse dated 14 March 2017 referred to above added to the doubt about the appellant’s fitness for work or lack of it during this period.
As earlier mentioned, the submissions from both parties are commendably brief and to my mind deal with the nub of the Arbitrator’s decision.

CONSIDERATION AND CONCLUSION

Again as mentioned above, the decision appealed against is a factual one. It is a conclusion upon the evidence that the appellant had not made out a case of incapacity. Put another way, at a factual level, upon the evidence he had not discharged his onus.
In these circumstances I direct myself that I should not interfere with the Arbitrator’s decision if upon the evidence it is to be seen as fairly open to him. It does not matter whether, if deciding the matter at first instance or by way of a review without the need to find error, I might have reached a different view. Error must be shown.[14]
[14] Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833; 117 FCR 424 and Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40.
For the reasons given in the respondent’s submissions, I do not think the appellant was denied procedural fairness. The material in documentary form which the Arbitrator plainly thought caused doubt, and in relation to the cessation of the appellant’s employment with TFNSW more than mere doubt, was all disclosed to the appellant before the hearing. He was represented by able and experienced legal practitioners who must have understood the way that material would be deployed against him, just as they must have seen the significance of Dr Morse’s report when it was embraced by the respondent, in particular the passage of his report extracted in the respondent’s written submissions on this appeal.
These considerations to my mind have particular importance when the decision the appellant seeks to impugn is a negative one, namely that the Arbitrator was not satisfied of something it was the obligation of the appellant to satisfy him of. At the risk of being repetitious, his finding was a finding of fact of a primary kind, namely that the appellant did not get over the hurdle required to be got over. That decision took account both of the matters that were affirmatively in evidence, and matters which were absent from the evidence but were material to the question the Arbitrator was considering.
Ultimately, in my opinion, the Arbitrator’s decision can only be seen as one involving the evaluation of the weight of the evidence that was there according to its own terms and in light of absence of evidence which could reasonably be expected to be advanced in support of the appellant’s case but which was not before him. After lengthy consideration I have come to the view, which involved overcoming reservations, that it cannot be said that his view was not fairly open. I shall endeavour to explain my analysis of this case which brought me to that view as briefly as possible.
In my consideration of this appeal the part of the Arbitrator’s reasons which has given me most pause is to be found in para [133]. I will set out the passage which caused me concern and prolonged consideration. It is as follows:
“I have significant concerns about the veracity and reliability of the [appellant’s] evidence. Although the medical evidence supports ongoing symptoms, there is no cogent or compelling evidence that those symptoms impacted on the applicant’s capacity to work in any tangible way. The fact of receipt of a compensable injury and treatment for same does not prove incapacity for work. Whilst there is no dispute the the [appellant] has suffered a workplace injury which has resulted in a need for investigation and management, in my view the evidence does not support total incapacity during the periods claimed …”. (emphasis added)
Although some reliance was placed on the fact that the Arbitrator accepted both injury and continuation of some symptoms in the appellant’s submissions, something which emerges clearly from the above passage, I am untroubled by that. It is commonplace for people who have suffered injury to be able to work while suffering symptoms of some kind. Rather, of concern to me, is the reference in the above passage to “cogent or compelling evidence”. There is of course no need for evidence to rise that high to support a finding in any civil litigation in favour of any party to it. That is so even if the Briginshaw test is applicable.[15] Satisfaction on the balance of probabilities is all that is called for, and even if a serious matter is in contention, so that to be satisfied on the probabilities a fact-finder should look for a sound evidentiary basis, it is not necessary that the evidence come to more than that.
[15] Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336.
It would follow that if the Arbitrator directed himself that evidence of that calibre was necessary, and that without it the appellant could not discharge his onus, error would be apparent. However, having read the reasons and evidence in this case several times, I am not persuaded that the Arbitrator did so direct himself, or that the use of those words in para [133] drove his decision given the nature of the thoroughgoing discussion to be found in his reasons. He in fact expressed himself more mildly in the concluding part of the above extract.
Secondly, the statement by the Arbitrator at [124] of his reasons, to which I referred at para [29] above, that the appellant’s family and recreational life continued “unabated” can be no more than an inference, and to my mind amounts to exaggeration or hyperbole. It is accurately and properly criticised in the appellant’s submissions. Accepting as I do that the weight to be given to the evidence is a matter for the primary fact finder, had I been satisfied that this inference of the Arbitrator’s, alone or in combination with the comment made in para [133] of his reasons as discussed above, was instrumental in his decision I think error would have been shown. The evidence that the appellant had coached his daughter’s football team, which may or may not have been demanding and may or may not have occupied six months, and the evidence of the import of the gardening prize, was so vague as to not justify a conclusion that his family and recreational life continued “unabated”. Then, bringing to account a family holiday does not in itself say much. It is not difficult to see that the appellant’s lawyers may have felt little apprehension about this evidence, especially given the nature of the appellant’s injury. If not a matter of common knowledge, it is close to being so that activity and exercise are good for depression and anxiety.
But whilst I think the Arbitrator went too far in relation to this part of the evidence, it was only one part of the evidence and it cannot be said to have been of absolutely no weight. Much more importantly to my mind, the Arbitrator thought that the TFNSW/Ampersand records cast doubt on the totality of the appellant’s evidence, and as to the cessation of his employment with TFNSW, rendered that evidence implausible. This I think is the real driver of his decision, and in the end, I am unpersuaded that his conclusion was wrong.
Finally, the appellant made some reference to the fact that in para [133] the Arbitrator, in the concluding sentence of the above extract referred only to “total incapacity” but once more, in my opinion, it is not possible to read his reasons without being satisfied that he approached the case from first to last upon the basis of the correct concept of “incapacity”: see in particular paras [112]–[116]. Grounds 1 and 2 to this appeal fail.

DECISION

The Arbitrator’s Certificate of Determination dated 24 April 2019 is confirmed.

Larry King SC

ACTING DEPUTY PRESIDENT

11 December 2019