Inverell Shire Council v Cowdery - [2019] NSWWCCPD 19

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Inverell Shire Council v Cowdery [2019] NSWWCCPD 19
APPELLANT:	Inverell Shire Council
RESPONDENT:	Paul Cowdery
INSURER:	Statecover Mutual Limited
FILE NUMBER:	A1-4065/18
ARBITRATOR:	Mr P Young
DATE OF ARBITRATOR’S DECISION:	25 October 2018
DATE OF APPEAL DECISION:	10 May 2019
SUBJECT MATTER OF DECISION:	Evaluation of medical evidence; validity of factual finding as to continuation of psychological injury; correctness of finding of fact as to reduced capacity to earn; adequacy of reasons
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turks Legal
Respondent:	Carroll and O’Dea
ORDERS MADE ON APPEAL:	1. Liberty to the appellant employer within 21 days from the date of this decision to apply to amend Ground 3 of the Grounds of Appeal, any such application to be notified to the respondent worker in writing and supported by further supplementary written submissions in respect of both of the Application to Amend and the substance of the ground as amended. 2. Liberty to the respondent worker within 21 days of service by the appellant of an application for leave to amend Ground 3 and further supplementary submissions of the kind referred to in Order 1 hereof, to put in supplementary submissions indicating whether the application is opposed and if so the basis upon which it is opposed and responding to the substance of the argument in respect of the amended ground. 3. In the absence of any application for leave to amend Ground 3 of the Grounds of Appeal, the Certificate of Determination of 25 October 2018 is confirmed.

INTRODUCTION AND BACKGROUND

This appeal concerns a claim that the respondent (the worker) sustained psychological injury, namely a major depressive disorder, as a result of being ostracised, bullied and harassed at work with the appellant (the employer) in his employment up until 28 June 2017. He was employed by the employer as a Parks Assistant, and his employment had commenced on 2 February 2016.
His claim was heard before an arbitrator on 17 October 2018. The Arbitrator determined the claim in his favour on 25 October 2018 awarding him weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act) from 28 June 2017 to 24 July 2017 in an amount which is not challenged in the event that the award of compensation is supportable. Then pursuant to s 36 of the 1987 Act the Arbitrator awarded the worker $636.66 per week from 9 October 2017 to 13 December 2017, arriving at the weekly amount after a finding that the worker could earn in respect of that period $20 per hour for 10 hours a week. Both the award of any weekly compensation at all and if an award be supportable, the finding in respect of reduced capacity are challenged. Finally, pursuant to s 37 of the 1987 Act the Arbitrator made an award in the sum of $466.24 per week from 14 December 2017 to date and continuing. That is challenged on the same two bases as the award in respect of the period from 9 October to 13 December 2017. The Arbitrator also made the usual award in favour of the worker for medical expenses pursuant to s 60 of the 1987 Act.
The worker’s case was pleaded in “Part 4-Injury Details” of the Application to Resolve a Dispute as involving a psychological injury, major depressive disorder, by reason of the nature and conditions of his employment involving unfair treatment and harassment at his workplace. The date of injury was put as 28 June 2017 and without that date being specified as a deemed date. It seems that the parties may have treated it as a deemed date but it also seems that nothing turns on this aspect of the matter.
The employer’s Reply denied the claim on the basis of the employer’s s 74 Notice and s 287A Review Notice.
Both the Application to Resolve a Dispute and Reply thereto annex voluminous documentary material including medical reports and certificates and statements of the worker and of witnesses, namely other employees of the employer. There was a degree of overlap in this material, chiefly in that some of the witness statements were relied upon by each party. As will appear, I do not believe it is necessary to deal in detail with this evidentiary material.
The Arbitrator, in his Statement of Reasons[1], set out the issues which fell for his determination on the strength both of the employer’s abovementioned Notice and Review Notice and the statements and submissions made to him. The issues which he outlined in para [3] of his reasons were:
(a)     whether the worker suffered injury within the meaning of s 4 of the 1987 Act;
(b)     if so, whether such injury was caused wholly or predominantly by reasonable action taken by the employer within the meaning of s 11A of the 1987 Act;
(c)     if s 11A does not assist the employer, whether the worker suffered any incapacity for work within the meaning of s 33 of the 1987 Act;
(d) if so, what is the extent of the worker’s entitlement to weekly payments pursuant to ss 36 and/or 37 of the 1987 Act?
(e) is the worker entitled to an award pursuant to s 60 of the 1987 Act?
[1] Cowdery v Inverell Shire Council [2018] NSWWCC 258 (Reasons), [3].
As indicated above, the Arbitrator determined these issues in the worker’s favour.
The case the learned Arbitrator had before him was of a type which is by no means uncommon, and indeed can be said to have become increasingly common over a period of a couple of decades or so. It presented an evidentiary conflict which is almost inevitable in such cases. The worker’s own account, and that of at least one other employee of the employer, painted a picture of his being subjected to a course of conduct by fellow employees which involved ostracising him or giving him the cold shoulder and unfairly subjecting him to disciplinary action and otherwise and unfairly treating or harassing him. On the other hand, the employees of the employer who were said to be the perpetrators of this conduct denied any animus towards or mistreatment of the worker and painted a picture of having to deal with behaviour on his part at work which called for action, including disciplinary action, which was carried out in a fair, reasonable and valid fashion. Had this state of affairs not arisen upon the evidence, then either there would have been no claim or no dispute in relation to it. In my later consideration of the rival submissions of the parties on this appeal and in giving my findings and reasons for the disposition of the appeal, I will return in more detail to the evidence, but, as foreshadowed above, essentially in summary form rather than substantial detail.

THRESHOLD MATTERS

It appears that there is no issue between the parties as to any threshold matter, monetary or otherwise, so that there is no technical impediment to the disposition of this appeal.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) enables proceedings before the Commission to be dealt with without an oral hearing and both parties have filed written submissions upon this appeal. Neither has sought a hearing other than “on the papers”. It appears that there was no viva voce evidence before the Arbitrator. Having read the papers and considered the matter I am satisfied that it is appropriate to determine this appeal on the papers.

THE ARBITRATORS REASONS

After a review of the submissions for the worker and employer that were put to him,[2] the Arbitrator discussed those submissions and the evidence at greater length under the heading “Findings and Reasons”.[3] It may be said that in para [44] thereof he made a brief general order in the worker’s favour under s 60 of the 1987 Act without any reasons or discussion directed specifically to medical expenses, but I do not understand the employer’s complaint about the reasons to be directed to that. Making an order under s 60 of that type, perfunctory though it might seem, is standard and uncontroversial once a decision has been made in a worker’s favour which logically means that reasonable medical expense in respect of a compensable injury must be recoverable.
[2] Reasons, [10]–[12].
[3] Reasons, [13]–[43].
In his “Findings and Reasons” the Arbitrator noted that the evidence disclosed the worker’s previous history of alcoholism and at least intermittent periods of depression associated therewith over a lengthy period but ending in late 2014 before the worker commenced his employment with the employer. Both these conditions had involved treatment, including by the medical prescription of antidepressant medication.
The Arbitrator noted the evidence as to what can be regarded as the genesis of the worker’s allegation of injury and the dispute or difference between the parties.[4] The worker’s evidence was that on 9 February 2017 he noticed that a workmate, Mr Holder, had arrived at work smelling of alcohol and was allocated to work with the worker driving one of the employer’s trucks. This man was in the worker’s view a close friend of one of his superiors, Mr Hughes. He formed the view that to report his concern about his workmate’s fitness to drive would rebound against him. The worker therefore adopted the ploy of tagging out the truck on safety grounds, and when later asked about having done so by Mr Hughes he explained “off the record” or in a manner intended to be private and confidential rather than official, what he had noticed about Mr Holder.
[4] Reasons, [16].
For some time prior to this incident the worker had been operating a mower which was on both sides agreed to be quite old. After his abovementioned conversation with Mr Hughes, when the worker was at his employer’s depot he noticed Mr Hughes and Mr Pay who was also senior to him in the organisation taking photographs of the mower. He was told that he would be required to attend a meeting the following day and he did so.
Thereafter he received a “first warning letter” in respect of damage to the mower and his failure to report it. This was the main topic of discussion at the meeting but there was at least one other criticism made of the worker, namely the use of a mobile phone during working hours. He met that by saying that he used his mobile phone to ring Mr Hughes over a work matter because he was unable to contact Mr Hughes on the two-way radio.
Thereafter the applicant worked using a “whipper snipper” but formed the view that he was being ignored and ostracised by some of the employer’s staff. This is dealt with in the Arbitrator’s reasons.[5]
[5] Reasons, [17]-[21].
The worker worked operating a street sweeper on 27 May 2017; the next afternoon he was informed that Mr Pay had seen him driving the sweeper in the middle of the street and he was told to keep to the gutters. On 1 June 2017 he was called to a second meeting relating to his operation of the street sweeper. It seems uncontroversial upon the worker’s evidence and the record of the meeting that the worker justified himself against the criticism of him on the basis that the sweeper was not working properly and by reason of that he operated it in the way other operators employed by the employer had told him to so as to get the street cleaning done.[6] On 28 June 2017 the worker received a second warning letter from the employer, which letter was dated 15 June 2017.
[6] Reasons, [22]–[23].
The Arbitrator saw significance in the facts that the first action against the worker which generated the first warning letter was initiated close in time to his conversation with Mr Hughes about Mr Holder.
Thereafter, the Arbitrator summarised the evidence as to the onset of the worker’s illness, referring to the records of the treating general practitioner, Dr MacIntyre, a short report from a treating psychologist, Ms Elizabeth Lloyd, to whom the worker was sent by Dr MacIntyre, and the medico-legal report of a psychiatrist qualified for the purposes of the worker’s claim, Dr Parsonage, dated 2 May 2018.[7]
[7] Reasons, [24]–[28].
This discussion involved the articulation of a finding (in para [28]) on the strength of what the Arbitrator said to be “… the whole of the evidence, but particularly the extensive notes of Dr McIntyre … and presentation to Ms Lloyd …” that “… the applicant’s reported symptoms and condition results [sic] from the series of events to which he was exposed from about 9 February 2017 to 28 June 2017”.[8]
[8] Reasons, [28].
Following that, the Arbitrator discussed the opinion of Dr Roberts, the psychiatrist qualified for the employer on a medico-legal basis, in his report of 25 July 2017.[9]
[9] Reasons, [29]–[31].
In that passage of his reasons, the Arbitrator’s discussion of Dr Roberts’ views culminated in his rejecting them. In his reasons, the Arbitrator articulated more firmly what earlier appeared in para [28].[10] The acceptance of the worker’s medical case and discounting of Dr Roberts’ evidence is in controversy on this appeal. That controversy extends both to the discounting of Dr Roberts’ evidence and the finding of continuing incapacity caused by employment injury.
[10] Reasons, [32].
The Arbitrator dealt with the employer’s reliance on s 11A of the 1987 Act.[11] It is not necessary to set out herein that now well-known provision which denies compensation to a worker by reason of, inter alia, “disciplinary action” on the part of an employer provided it is reasonable. (This statement does not purport exhaustively to summarise the section.)
[11] Reasons, [33]-[37].
Squarely by reference to the fact that the first disciplinary action closely followed the worker’s conversation with Mr Hughes about Mr Holder, the Arbitrator found that that conversation was the real motive. On that basis he held that the employer’s action “… was not reasonable in the sense that it was not fair.” He also based himself upon the abovementioned evidence. The Arbitrator went on to hold that it was unfair and thus not reasonable to blame the worker for damage to the old mower. He noted that other employees of the employer had used it in the period over which the damage was apparently said to have arisen and the absence of any evidence of action against them. The Arbitrator went on to outline his view of other factual matters, which view fortified his conclusion already articulated.[12]
[12] Reasons, [34]–[35].
The Arbitrator dealt with the events of June 2017 which preceded the worker seeking medical treatment at the end of that month.[13] To my mind it is fair to say that the Arbitrator’s conclusion about those events is that the employer’s action was disproportionate to the conduct of the worker under consideration and that the discussion at the second meeting and the second warning letter were therefore unreasonable.
[13] Reasons, [36].
The Arbitrator’s findings in relation to the relevant events in the worker’s employment with the respondent starting effectively on 9 February 2017 and terminating on 28 June 2017 resulted in his decision that the employer’s defence of the claim in reliance of s 11A of the 1987 Act was unsuccessful.[14] This is not in controversy on this appeal.
[14] Reasons, [37].
When he came to the quantification of weekly compensation, that part of his reasons which were the subject of the third ground of the employer’s appeal comprises paras [42] and [43].
Although I have thus far eschewed any reproduction herein of the evidence and verbatim reasoning of the Arbitrator, I think it is worthwhile setting out certain parts of these two paras.
Paragraph [42] begins:
“…I have taken into account the applicant’s age and background employment experience as well as other matters which must be considered by reason of s 32A of the 1987 Act. In respect of the period 9 October 2017 to 13 December 2017, I am of the view after exercising discretion that the applicant had some capacity for work in suitable employment and I assess this capacity to earn as being $20 per hour, ten hours per week…”
Paragraph [43] begins:
“In respect of the period 14 December 2017 to date and continuing … having regard to the applicant’s demonstrated ability in attending to some farming work I am of the view that the applicant’s capacity to perform work is of the order of 12 hours per week at $20 per hour, namely the sum of $240 per week. After the exercise of discretion I am of the view …”
The Arbitrator did not discuss in detail the evidence in statement form of a number of other witnesses for the employer, but no point seems to be taken in that regard. Their evidence in any event went essentially to the s 11A argument rather than any of the three grounds of appeal.
On 25 October 2018, the Arbitrator issued a Certificate of Determination in the following terms:
“The Commission determines:
1. Award in favour of the applicant against the respondent pursuant to section 36 of the Workers Compensation Act (NSW) 1987, as amended (1987 Act):
(a) in the sum of $838.66 per week from 28 June 2017 to 24 July 2017; and
(b) in the sum of $638.66 per week from 9 October 2017 to 13 December 2017.
2. Award in favour of the applicant against the respondent pursuant to section 37 of the Workers Compensation Act 1987 in the sum of $466.24 per week from 14 December 2017 to date and continuing.
3. Award in favour of the applicant against the respondent pursuant to section 60 of the Workers Compensation Act 1987.
A brief statement is attached setting out the Commission’s reasons for the determination.”

GROUNDS OF APPEAL

The employer raises three grounds of appeal. They are:
·         that the Arbitrator erred, in effect in rejecting the evidence of Dr John Roberts in his report of 24 July 2017, by failing to give “proper weight” to the doctor’s opinion (Ground 1)
·         that the Arbitrator erred in what I take to be fact and/or law and/or discretion in arriving at his finding that the worker continued to suffer from the effects of his psychological injury, and failed to give proper reasons for his findings which underpinned his conclusion that the condition (an incapacitating one) continued (Ground 2)
·         that the Arbitrator again made errors of law, and/or fact, and/or discretion in arriving at his finding as to the worker’s current work capacity, that the worker is capable of working on the open labour market for 10 or 12 hours per week earning $20 per hour, and failed to give proper reasons for his findings in coming to this conclusion. (Ground 3)

SUBMISSIONS AND CONSIDERATION

The employer put on an initial set of written submissions followed by supplementary written submissions dated 29 November 2018 which did not go to Ground 1 of its appeal. The supplementary written submissions reinforced Grounds 2 and 3 of the initial written submissions. The worker put on one set of written submissions following the lodgment of both sets of the employer’s submissions.
I shall deal with each of the three grounds in turn, but what I have to say about the Arbitrator’s reasons, which are criticised in Grounds 2 and 3, may involve some repetition or overlap.
Also before moving to the individual grounds of appeal, I shall set out the fashion in which I direct myself as to the burden carried by the employer in seeking to have the Arbitrator’s decision interfered with upon this appeal.
What is required is error of fact, law or discretion.[15] I therefore regard it as plain that the nature of the decision assailed in the three grounds must be identified.
[15] 1998 Act, s 352(5).
I identify each as involving findings or conclusions of fact. Ground 1 says that the Arbitrator did not accord proper weight to the evidence of Dr Roberts. I regard him as having rejected the doctor’s opinion for factual reasons revolving around the history and lack of radiological findings, and thus I regard myself as being asked to evaluate whether that decision of fact displayed error. As to Ground 2, I am firmly of the view that a finding that a medical condition and/or incapacity is continuing after its being caused is factual. As to Ground 3, a finding as to capacity to earn I believe equally firmly to be factual.

Put another way, in respect of the findings as ultimately articulated by the Arbitrator on each of the three aspects of his decision-making that are attacked, I think there is no legal consideration or conclusion which informs the outcome and which is said to be erroneous.
But it is necessary to qualify the foregoing by saying that failure to give adequate reasons is an error of law, although I would not characterise it, at least not in this case, assuming the reasons were inadequate, as one informing the actual decision of fact or finding of fact arrived at. Rather, inadequate reasons by definition fail to give the aggrieved party and an appellate court a sufficient understanding of why a conclusion obviously arrived at was in all the circumstances so arrived at. If there were a paucity of reasons as asserted in Grounds 2 and 3 error of law would be demonstrated.
Then there can be no doubt that the Arbitrator’s findings as to residual earning capacity squarely attacked in Ground 3 involve the purported exercise of a discretion. He said so in respect of each finding.[16]
[16] Reasons, [42]–[43].
Complaints about his reasons raised in relation to this I take to extend to how or why he exercised his discretion, but I direct myself that the employer’s task in showing error in respect of a discretionary decision involves discharging an onus of a difficult kind.[17]
[17] Australian Coal and Shale Employees’ Federation v The Commonwealth [1953] HCA 25; 94 CLR 621, 627 (per Kitto J).
I should complete this summary of the directions of law upon which I proceed in determining this appeal by saying specifically in relation to decisions of fact upon competing or conflicting bodies of evidence, that as in previous decisions, I follow and adopt unreservedly the decision of Roche DP in Raulston v Toll Pty Limited.[18] Not only has the learned Deputy President’s decision been consistently followed in the Commission (see for example the recent decision of the former President Keating in Andersen v J and M Predl Pty Limited[19]), as the decision in Raulston itself shows, it is soundly based upon High Court authority.
[18] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[19] [2018] NSWWCCPD 40.
For present purposes, I direct myself that where the Arbitrator in the present case reached factual conclusions or findings upon his view of and inferences from evidence which was in contest i.e. where there was a contrary body of evidence, it is not for me to consider what I would have found upon the evidence before him. Rather it is for me to consider whether the employer has shown that his factual findings were wrong and that in order to do justice they must be set aside.

Ground 1

As above mentioned, the employer submits that the Arbitrator did not give proper weight to the opinion of Dr Roberts. So expressed, the ground, with all respect to the employer, immediately appears unpromising. Whilst it stops short of saying that the Arbitrator should have accepted the opinion of Dr Roberts rather than the views of the medical experts relied upon by the worker, it is difficult to see that ground means anything other than that. Given that a large number of cases has always been, and continues to be, decided by the decision-maker’s preferring one body of medical evidence over another, a ground such as this, to my mind, must really depend upon showing that something significant was overlooked in relation to the evidence of Dr Roberts. That is especially so in a case like the present in which there undoubtedly was a competing medical view which, if accepted, supported the worker’s claim.
The employer advances a little more than a page of submissions in support of this ground.[20] The bulk of these outline factual matters, largely of a medically historical kind, and to some extent elaborate them with argument.[21] However the employer contends that the Arbitrator misread or misunderstood the opinion of Dr Roberts because the Arbitrator regarded the doctor as advancing alcoholically-induced brain damage as the explanation for the worker’s problems, whereas that was not so.[22] Upon that basis the employer went on to submit that the Arbitrator’s comment about the absence of radiological evidence of brain damage was misconceived and erroneous because such evidence was not essential to the doctor’s opinion.
[20] Appellant’s submissions dated 20 November 2018, [14]–[27].
[21] See Appellant’s submissions dated 20 November 2018, [19].
[22] Appellant’s submissions dated 20 November 2018, [23]-[25].
The worker’s submissions support the Arbitrator’s evaluation of the evidence of Dr Roberts, and submit in doing so, inter alia, that the doctor did make a diagnosis of brain damage.
The Arbitrator clearly set out his reasons for rejecting the opinion of Dr Roberts. The Arbitrator found that Dr Roberts did not explain how he diagnosed the worker with “poor impulse control”.[23] He found the opinion difficult to accept, in the total absence of evidence of poor impulse control when the worker commenced work for the appellant and when he received the first warning letter. In the absence of “radiological or diagnostic testing confirming the existence of brain damage (such as an MRI scan)” the Arbitrator found Dr Roberts’ opinion to be a bare ipse dixit.[24] For these reasons, he preferred the evidence of Dr Parsonage, Dr McIntyre and Ms Lloyd that the worker sustained a psychological injury in the nature of major depression and anxiety in the course of his employment. These findings were open on the evidence.
[23] Reasons, [30].
[24] Reasons, [31].
I am not persuaded that the employer has shown error in the Arbitrator’s treatment of Dr Roberts’ evidence. As outlined above, the Arbitrator accepted the worker’s medical case. His reasons indicate that he took into account the whole of the evidence in doing so,[25] but he dealt specifically with the evidence of Dr Roberts.[26] I can detect no error or failure to take account of a significant matter nor an error of the kind discussed in Raulston.[27] Moreover I think that it is a realistic reading of the report of Dr Roberts to say that he was propounding brain damage as the worker’s problem. The passage from the doctor’s report set out by the employer in its submission I think can appropriately be so read.[28]
[25] Reasons, [28].
[26] Reasons, [29]-[31].
[27] Raulston.
[28] Appellant’s submissions dated 20 November 2018, [24].
This ground has not been made out.

Ground 2

The employer contends that the Arbitrator made a relevant error in holding that the worker’s psychological injury was continuing to affect him, upon the basis that his condition was caused by the events leading up to 28 July 2017.
In support of this ground the employer in the main criticises the Arbitrator’s reliance on the histories taken by Dr McIntyre and Ms Lloyd and his overall interpretation of Dr Parsonage’s report.
The employer submits that the worker’s medical evidence could provide no foundation for a finding of continuing symptoms and incapacity because that evidence was not concerned with events subsequent to 28 June 2017 and that the Arbitrator gave no adequate reasons for concluding that Dr Parsonage’s report furnished evidence that the “current cause” of the worker’s problems could be “related to events leading up to June 2017”.[29] Then the employer went on to specifically submit that in his reasons the Arbitrator did not deal with a particular passage in Dr Parsonage’s report which I think it is unnecessary to reproduce.[30] Finally the employer went on to acknowledge the well-known proposition that reasons need not be elaborate or exhaustive.[31]
[29] Appellant’s submissions, [35].
[30] Appellant’s submissions, [37].
[31] Appellant’s submissions, [38].
The worker’s submissions emphasised the reasons point,[32] but simply responded rather tersely to the employer’s argument with the contention that the evidence of Dr Parsonage afforded a satisfactory foundation for the Arbitrator’s decision.
[32] Respondent’s submissions on appeal, [5].
The Arbitrator held that, given the consistent history provided by the worker to all medical practitioners and his account of symptoms supported by Dr Parsonage, Dr McIntyre and Ms Lloyd, the overwhelming medical evidence was that the worker sustained the psychological injury as alleged. The facts on which the opinions of these medical experts were based formed a proper foundation for their ultimate conclusions.[33] The Arbitrator’s acceptance of that evidence disclosed no error.
[33] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43, [85].
Once more I am unpersuaded by the employer’s arguments. I think the medical evidence relied upon by the worker justified the Arbitrator’s approach, and in particular I believe that the passage of Dr Parsonage’s report specifically adverted to by the employer in para [37], read fairly and appropriately, assists the worker and not the employer. Moreover, I think it is correct to say that there is no evidentiary basis for a conclusion that the worker fully recovered from his psychological condition after June 2017.
The statutory requirement to provide a statement of reasons is found in s 294 of the 1998 Act. Section 294 of the 1998 Act provides:
“(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
The matters to be included in a statement of reasons are governed by r 15.6 of the Workers Compensation Commission Rules 2011. It is in the following terms:
“(1) A statement of the Commission's reasons referred to in section 294 (2) of the 1998 Act is to include:
(a) the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission's understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasonsset out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them.”
When considering a challenge to the adequacy of reasons it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate”.[34] The reasons given by the Arbitrator for this part of his decision-making process are unexceptionable. The Arbitrator gave consideration to the available medical evidence and he explained his reasons for accepting the evidence of Dr Parsonage, Dr McIntyre and Ms Lloyd. Having regard to the statutory requirements to give reasons, I am satisfied that the Arbitrator discharged his obligation to give reasons. To my mind his reasons well pass the test of letting the losing party know with sufficient clarity the basis upon which it lost and of informing anybody conducting an appellate review of his decision of its basis.
[34] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.

Ground 3

This ground asserts that the Arbitrator fell into relevant error in finding that the worker could earn $20 per hour for ten or twelve hours per week (the difference in the number of hours per week relating to differing periods) and also asserts failure to give proper reasons “… for his findings in coming to this conclusion”.
Strictly read according to its terms, this ground would I think be construed as extending no further than an attack upon the finding of the number of hours per week for each of the two periods and the monetary amount of remuneration in respect of an hour’s work, rather than as an overall attack on the monetary weekly award made by the Arbitrator. The attack on his reasons should also be so confined on a strict reading.
I should say at the outset in respect of this ground that I am troubled by the way it is expressed i.e. by the fact that it calls for such a strict or limited reading. No criticism is advanced of the Arbitrator’s purported exercise of a discretion in making his awards pursuant to ss 36 and 37 of the 1987 Act. I have mentioned the special considerations which attend an appeal against a discretionary decision: see para [41], supra. But I do not think a discretion falls to be exercised under either of those provisions, and a purported exercise of a discretion by the Arbitrator must be misconceived and impossible to explain by way of proper judicial reasons.
Accordingly, had this ground been more expansively put, as at present advised and in the absence of argument, I would have thought the worker would have no answer to a submission that the way in which the weekly awards in his favour made by the Arbitrator for the periods from 9 October 2017 to 13 December 2017 and 14 December 2017 to date and continuing were arrived at must involve error. (Although I do not understand the employer to complain about the award of weekly compensation pursuant to s 36 in respect of the period from 28 June 2017 to 24 July 2017, there being no finding of residual capacity to earn in that period, it is noteworthy that a purported exercise of discretion took place there as well.)[35]
[35] See Reasons, [41].
I am concerned about this state of affairs, and I propose to grant liberty to the employer to apply, if so minded, to amend this ground of appeal and furnish supplementary submissions. Should that be done, the worker will have liberty to object to the application and furnish further submissions opposing the application and replying to the employer’s submissions generally.
However whether an application is to be made may be a decision to be influenced by my disposition of this ground of appeal according to its strict import as I understand it, and I shall now deal with it on that basis. However I should also say that whether such an application should be made may well require antecedent consideration of whether the Arbitrator’s decision would be any different in the absence of a purported exercise of discretion. That is by no means clear, at least not to me, but I repeat and stress that I have not had the benefit of any argument on this aspect of the matter.
I think the criticism of the Arbitrator’s finding of residual capacity based upon hours per week the worker could work and the rate of hourly remuneration to be attracted to his work is without substance. In the first place, the Arbitrator said that he specifically had regard to the provisions of s 32A of the 1987 Act in coming to his decision and there is nothing in my opinion upon a reading of the relevant paragraphs of his reasons to show that that is not so. The duty to provide reasons depends on the circumstances of the individual case.[36] True it is that his reasons are brief, but I think they are adequate and clear enough, and comply with his statutory obligations to give reasons.[37] Secondly, it is well established that specialist workers compensation decision-makers are to be taken to have specialist judicial knowledge of such matters as are mentioned by the Arbitrator and to be found at least in large part in s 32A. These considerations, individually or in combination, in my opinion mean that as framed this ground of appeal must fail.
[36] Mifsud v Campbell (1991) 21 NSWLR 725, 728.
[37] 1998 Act, s 294(2); Workers Compensation Commission Rules 2011, r 15.6.

ORDERS

Liberty to the appellant employer within 21 days from the date of this decision to apply to amend Ground 3 of the Grounds of Appeal, any such application to be notified to the respondent worker in writing and supported by further supplementary written submissions in respect both of the Application to Amend and the substance of the ground as amended.
Liberty to the respondent worker within 21 days of service by the appellant of an application for leave to amend Ground 3 and further supplementary submissions of the kind referred to in Order 1 hereof, to put in supplementary submissions indicating whether the application is opposed and if so the basis upon which it is opposed and responding to the substance of the argument in respect of the amended ground.
In the absence of any application for leave to amend Ground 3 of the Grounds of Appeal, the Certificate of Determination of 25 October 2018 is confirmed.

Larry King SC

ACTING DEPUTY PRESIDENT

10 May 2019