Kleinbergs v Central West Pathology Service
[2007] NSWWCCPD 206
•4 October 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Kleinbergs v Central West Pathology Service [2007] NSWWCCPD 206
APPELLANT: Richard Walter Charles Kleinbergs
RESPONDENT: Central West Pathology Service
INSURER:Treasury Managed Fund, GIO Limited
FILE NUMBER: WCC15012-06
DATE OF ARBITRATOR’S DECISION: 9 February 2007
DATE OF APPEAL DECISION: 4 October 2007
SUBJECT MATTER OF DECISION: Section 11A Workers Compensation Act 1987; sufficiency of reasons for decision.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: Higgins and Higgins
Respondent: DLA Phillips Fox
ORDERS MADE ON APPEAL: 1. Time to appeal is extended to 15 March 2007.
2.The decision of the Arbitrator dated 9 February 2007 is confirmed.
3. No order as to costs of this appeal.
BACKGROUND TO THE APPEAL
On 15 March 2007 Richard Walter Charles Kleinbergs (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 February 2007.
The Respondent to the Appeal is Central West Pathology Service (‘the Respondent’).
The Appellant, who was born on 9 December 1959, commenced employment with the Respondent Service on 11 March 1982. He remained in that employ, excepting a period of unpaid leave of 8 months in 1999, until he ceased work on 22 October 2004. At that time a claim for compensation benefits was made against his employer which was stated to be related to a psychological injury received in the course of his employment.
The Appellant commenced his employment as a Medical Technologist and progressed to the position of Chief Hospital Scientist. That position had been held by the Appellant since 1991 and at the date of the alleged injury he was employed at the Respondent’s laboratory at Lithgow. The Respondent employed six workers at that laboratory including the Appellant. The Appellant held the senior position and his partner, it is relevant to note, Ms Allison Booth, was second in charge.
For a considerable period of time prior to October 2004 there existed at the Lithgow laboratory considerable disharmony and indeed conflict among those working there. In particular the Appellant encountered ongoing conflict with a fellow worker, Ms Gardiner, and experienced difficulties with his superiors in the Service with respect to management and support. Economic constraints which were imposed upon the Service as well as suggested under staffing at the laboratory caused the Appellant concern and gave rise to a stressful work environment.
It appears that the issue of conflict among the Lithgow laboratory staff and with other parties at the Lithgow Hospital was the subject of an investigation by a Ms Howell in approximately February of 2004. In August 2004 Ms Helen Colbey was appointed to undertake an investigation and to present a report in relation to several “protected disclosures” received by the Respondent concerning the conduct of the Appellant and Ms Booth. That investigation had been completed prior to 22 October 2004 however Ms Colbey’s report had not been presented.
The Appellant, on 20 October 2004, presented a document headed “Changes to be made at Lithgow Laboratories” to all staff at the workplace. Following the issue of this document a decision was taken to transfer the Appellant to the Respondent’s Bathurst laboratory. A similar decision was taken with respect to the transfer of Ms Booth. A meeting between the Appellant, Ms Booth and members of the Respondent’s management was held at the Lithgow Community Hospital on 22 October 2004. Also present at that meeting was a Ms Clarke, a Union Representative. It was at that meeting that the document issued by the Appellant and delivered to staff members was the subject of discussion, following which the Appellant and Ms Booth were advised of their transfer to the Bathurst laboratory and were informed that, should they wish, they may take their leave entitlements immediately.
Following that meeting the Appellant ceased work and, on 25 October 2004, consulted his General Practitioner, Dr Yin. It appears that a medical certificate was presented to the Respondent by the Appellant on 26 October 2004 following which a claim for workers compensation benefits was made by the Appellant alleging work related stress, anxiety and depression. That claim was denied by the Respondent and its Insurer.
On 19 September 2006 the Appellant filed an Application to Resolve a Dispute (‘ARD’) with the Commission alleging injury on 22 October 2004 being “stress, anxiety and depression”. The injury was described as occurring as a result of “nature and conditions” of employment. The Appellant claimed in that ARD weekly benefits compensation, medical, hospital and related expenses and permanent impairment/pain and suffering lump sums. That Application came on for hearing before an Arbitrator on 11 January 2007 and a Certificate of Determination issued on 9 February 2007.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 9 February 2007 records the Arbitrator’s orders as follows:
“1.Award for the Respondent in respect of the Applicant’s claims for weekly benefits, medical, hospital or related expenses, permanent impairment and pain and suffering.
2.That the Respondent to pay the Applicant’s costs as agreed or assessed.”
A Statement of Reasons for Decision (‘Reasons’) accompanied the Certificate of Determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)whether the Arbitrator failed to provide reasons or adequate reasons with respect to the application of Section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’);
(ii)whether the Arbitrator’s decision was against the evidence or the weight of the evidence;
(iii)whether the Arbitrator erred in failing to determine questions of fact relevant to his decision;
(iv)whether the Arbitrator failed to determine questions as to the credit of witnesses in matters of factual dispute, and
(v)whether the Arbitrator erred in accepting as fact matters documented in the Respondent’s evidence with respect to matters in dispute.
The summary of the issues as set forth above is taken from the Appellant’s document headed “Statement of Grounds for Appeal” filed with the Commission on 15 March 2007.
ON THE PAPERS REVIEW
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.”
The Appellant has submitted that the appeal may properly be decided solely upon the basis of the written Application and Notice of Opposition lodged.
It is submitted on behalf of the Respondent at Part A paragraph 10 of its Notice of Opposition that, by reason of the Appellant’s suggested application to adduce fresh evidence on this appeal and the Appellant’s attempt to rely upon argument not presented at the hearing before the Arbitrator, it would be “inappropriate to deal with this matter on the papers”.
The Respondent’s objections to the acceptance of fresh evidence on this appeal and its objection with respect to the presentation of submissions concerning arguments not advanced at the hearing before the Arbitrator are dealt with hereunder. It will be seen that I am of the view that the Respondent’s objections are well founded. In all the circumstances and having regard to Practice Directions Numbers 1 and 6, the documents that are before me and the submissions by the Appellant 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352(4) of the 1998 Act provides:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
Part 16.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) governs procedural requirements with respect to appeals against an Arbitrator’s decision. Rule (11) of that Part provides:
“(11) The Commission constituted by a Presidential Member may, if a party satisfies the Presidential Member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The Appellant’s Application was filed with the Registry of the Commission on 15 March 2007. The Decision appealed against was made, in terms of section 352(4) of the 1998 Act, on 9 February 2007. It can be seen that the Appellant’s Application is in breach of the time requirements in that it was filed 6 days after expiration of the period fixed by the 1998 Act and the Rules (Part 16.2 rule (1)). The Respondent in its submissions on this appeal opposes the granting of any extension of time for making this appeal. Reliance is placed by the Respondent upon the decision by Snell ADP in Department of Corrective Services v Buxton [2007] NSWWCCPD 55 (‘Buxton’) and argument founded upon that authority is amplified in Part A of its Submissions.
The Appellant’s Application includes a document headed “Submissions on out of time Appeal”. It is put on behalf of the Appellant that the Application was initially filed with the Registry of the Commission on 28 February 2007 and that the Registry rejected the document on the basis that it omitted certain formal matters. It appears from the Commission file that in fact the Application was originally filed with the Registry on 5 March 2007 and that the document was rejected by the Registry as stated in its letter to the Appellant’s Solicitors dated 7 March 2007. It also appears that further lodgement was attempted on 12 March 2007 (under cover of letter from the Appellant’s Solicitors dated 9 March 2007). That document was also rejected by the Registry as outlined in correspondence dated 13 March 2007 addressed to the Appellant’s Solicitors. The ground of rejection on this occasion was apparently the fact that the document did not contain submissions with respect to late lodgement. The Application was successfully re-lodged with the Registry on 15 March 2007.
It is put on behalf of the Appellant that time to file the Application should be extended given that the original attempted lodgement was within the stipulated 28 day period. It is further argued that the defects in the paperwork did not relate to matters in contention, it is said that injustice would flow from forfeiture by the Appellant to his right to bring an appeal and that there is, in the circumstances, no prejudice to the Respondent by reason of the delay of some days in successfully lodging the Application.
The principles relevant to the exercise of discretion to extend time were considered by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479. Those principles have been discussed and applied in numerous decisions of the Commission (see for example, Alexandru v State Rail Authority NSW [2004] NSWWCCPD 54).
The present matter is not one, as was the case in Buxton, of an error by the Appellant’s Solicitors with respect to calculation of the relevant 28 day period. The original lodgement was within the time specified and rejection of that document was made only by reason of formal defect. It is not argued by the Respondent that any prejudice arises by reason of the need to re-lodge the documentation.
Having regard to the very brief period by which time the limitation was breached, the matters outlined above and the nature of the litigation, I am of the view that “exceptional circumstances” within the meaning of the Rules exist in the present matter.
The Appellant has raised substantial issues for determination in his Application and I am of the opinion, that should the Appellant lose the right to seek leave to appeal, demonstrable and substantial injustice in terms of the Rules would likely occur.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
I formally order that time to apply for leave to appeal be extended to 15 March 2007. Having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
FRESH EVIDENCE
Paragraph 2.4 of the Appellant’s Application records that leave is not sought to rely on fresh evidence or evidence in addition to or in substitution for the evidence received before the Arbitrator. Notwithstanding that fact the documentation filed in support of the appeal contains argument founded upon provisions of the Hospital Scientists (State) Award and a copy of that Award is annexed to the Application. That Award was not in evidence before the Arbitrator. The arguments presented on this appeal founded upon the provisions of that Award were not advanced before the Arbitrator.
Having regard to the provisions of section 352(6) of the 1998 Act and the content of Practice Direction Number 6 relating to the procedure for seeking leave of the Commission to admit “new evidence” on appeal it may be seen that no such application for leave has been made with respect to the admission of the Award into evidence. There is no submission put on behalf of the Appellant seeking to argue that the Commission may take judicial notice of the existence and the content of such an Award.
I am of the view that the Appellant has failed to comply with the requirements of the 1998 Act and Practice Direction Number 6 with respect to any application which is required to be made with respect to the admission of the Award into evidence as fresh evidence. Shortly stated I do not treat the Appellant’s submissions as constituting an application for leave to adduce new evidence and accordingly the content of the Award identified above is not treated as constituting part of the evidence on this appeal.
EVIDENCE
The documentary evidence which was before the Arbitrator is noted at paragraph 14 of his Reasons. That summary makes no reference to documentation annexed to two Applications filed on behalf of the Appellant seeking the admission of late evidence. It is clear from the summary of the Appellant’s medical evidence which appears at paragraph 21 of the Arbitrator’s Reasons that the report of Mr Camacho, Psychologist, dated 30 October 2006 which was annexed to an Application for admission of late evidence filed on 23 November 2006 had been received in evidence by direction of the Arbitrator. It appears that the Arbitrator omitted to note the existence of that report in the summary appearing at paragraph 14 of his Reasons. No oral evidence was given before the Arbitrator.
Before the Arbitrator was a copy of a document headed “Grievance”. This undated document details complaint by the Appellant and Ms Booth against the Respondent and various members of staff and against Ms Helen Colbey. There is no direct evidence as to the presentation of this document other than reference made to filing of a “counter grievance against MWAHS in November 2004” as stated by the Appellant in statement dated 5 September 2005.
There were two Statements made by the Appellant before the Arbitrator, the first dated 1 March 2005 and the second dated 5 September 2005. The first of those Statements outlines the Appellant’s vocational background and contains considerable detail concerning the problems and difficulties encountered by the Appellant in the course of his work at the Lithgow laboratory. The “stresses” encountered by the Appellant related to suggested failure on the part of management to properly train and support the Appellant, financial difficulties given economic constraints in the day to day administration of the laboratory and conflict with staff in particular with Ms Gardiner. The Appellant states that he “felt other staff becoming increasingly hostile” after a particular incident in June 2004 concerning the conduct of Ms Gardiner in allegedly attempting to take blood from a child patient without consent. That Statement also records that a “Grievance” had been lodged against the Appellant. The Appellant’s Statement details his response to the manner in which the grievance procedure was conducted including detail of his dealings with the Respondent’s Business Manager, Margaret Baker and the Clinical Director, Dr Michael Guinness.
At paragraph 25 of that first Statement the following is recorded by the Appellant:
“25)The thing I feel has severely damaged my self esteem, hopes, and demolished my reputation and standing at MWAHS, is the summary removal of me from my workplace by John White and MWAHS on 22 October 2004 ….”
The Appellant proceeds in that Statement to describe his feelings and responses to the treatment he received in the course of his work and states that he is totally unfit to return to any form of employment indefinitely. He records that he has been “off work since 22 October 2004” and that workers compensation benefits had been declined.
The second Statement, dated 5 September 2005, addresses matters raised in documentation filed in the Commission on behalf of the Respondent and matters addressed by Dr Akkerman, Psychiatrist, in his report which had been prepared at the request of the Respondent’s Insurer. Also addressed in that Statement are matters seeking to refute the contents of the Respondent’s evidence in particular suggested inaccuracies and untruths in the Respondent’s “Briefing Note”. That Statement also includes considerable detail which purports to address the question as to causation of the Appellant’s “on-going condition”. The Appellant makes mention of lack of support as well as suggested antagonism, harassment and pursuit of a personal vendetta against him by the Clinical Director. Mention is also made of lack of support from the Business Manager and that the consequences of such treatment received by him had been “exacerbated” by “the action of summarily removing” the Appellant from the Lithgow laboratory. The Statement proceeds to detail the Appellant’s complaint concerning management issues and in particular the manner of conduct of the “complaint process”. Reference is also made to events occurring on dates well after the Appellant ceased work which can have no relevance to the issues for determination before the Arbitrator.
Medical evidence before the Arbitrator included a report from Dr Biing Yin, General Practitioner dated 12 May 2005. That report records that the Appellant’s first consultation in relation to the alleged injury was on 25 October 2004 at which time a history was recorded that the Appellant was having difficulty with sleeping due to work related stress and ongoing insomnia. Dr Yin noted as follows:
“This was a result of interpersonal conflict with other staff members and the inability with other staff members to provide constructive resolution to these problems. This has been going on for the last couple of months without resolution.”
Dr Yin diagnosed a condition described as:
“Reactive depression, anxiety and insomnia.
This deteriated (sic) over months due to poor conflict resolution and the depression became endogenous depression.”
There is a second report from Dr Yin dated 27 September 2005 which purports to deal with issues relevant to the application of section 11A of the 1987 Act.
Also before the Arbitrator were a number of WorkCover NSW medical certificates the first of which is dated 4 November 2004 which records the Appellant’s date of injury as being 22 October 2004 and records a diagnosis of “reactive depression, weight loss, insomnia”.
The clinical notes of Dr Yin were also in evidence before the Arbitrator. It is recorded that a consultation occurred on 25 October 2004 at which time the following history was taken:
“History:
trying to sack them from work. removed from work. find. grievance lodge. clinical director. dranging.(sic) on. 2 weeks interview. presented. changes. went to mid west. standard. procedure. going on for 2 months. john wilby.
Need to have responsible for quality. Situation.
started 18 months ago with particular staff member.
nil support from above.
need.
Examination:
stress less. Needs medical certificate. On going stress.”
A report from Ms Wendy Savill, Consultant Counsellor, dated 1 April 2005 was before the Arbitrator. The Appellant’s first consultation for counselling by Ms Savill occurred on 10 March 2005 at which time he reported stress, anxiety and depression and inability to work since 22 October 2004. It is recorded that the Appellant “feels this condition has been caused by workplace harassment and character annihilation at work since May 2003”. Ms Savill diagnosed a condition of depression, anxiety and stress and expressed the view that:
“My opinion as to the relationship between Mr Kleinbergs’ condition and the injury sustained is definitely consistent.”
There were two reports from Dr Andrew Frukacz, Consultant Psychiatrist, the first dated 3 May 2005 and the second dated 6 September 2005. The first of those reports records the Appellant’s consultation with that Practitioner on 1 March 2005. Dr Frukacz took a history that the Appellant had experienced increasing stress in his work situation which arose from conflicts with the Clinical Director as well as with one of the Technicians whom he was supervising. The Appellant stated that he was shocked when a grievance was filed against him and that he was given the choice of “either taking leave from work or being relocated to the Bathurst Pathology Laboratory and so he decided to take leave and ceased work in October 2004”. Dr Frukacz diagnosed the condition of “adjustment disorder with mixed emotional features of both depression and anxiety arising from the conflicts that he had been experiencing at work …”. When dealing specifically with any physical restrictions that may be appropriate for the Appellant Dr Frukacz stated:
“There are no physical restrictions that I would place on employment of Mr Kleinbergs. However at this stage due to the interpersonal nature of the stressors that he was facing it would be important for him not to be exposed to those people that he was having difficulties with.”
The second report by Dr Frukacz purports to deal with issues raised with respect to the application of section 11A of the 1987 Act.
There was before the Arbitrator a copy of a report from C.R. Camacho, Consultant Psychologist, dated 30 October 2006. Mr Camacho noted that the Appellant had informed him:
“that he did not have significant medical problems prior to the work incident on 22 October 2004.”
The history as to the “work incident” was recorded by Mr Camacho as follows:
“Mr Kleinberg (sic) informed me that on 22 October 2004, he was carrying out his duties as per usual. He states that the Director of Financial Services approached him (and his partner who also worked at Greater Western Area Health Services) and told them that they had to leave the laboratory immediately and not return.”
It was Mr Camacho’s view that the Appellant suffered from Depressive Mood with Anxiety which he assessed according to the DSM-IV-TR. The view was also expressed by Mr Camacho that:
“Mr Kleinberg (sic) has been psychologically affected and seems not to have recovered since the work incident on 22 October 2004.”
A whole person impairment was calculated by Mr Camacho as totalling 17%.
Documentary evidence relied upon by the Respondent before the Arbitrator included a copy of a Deed of Release (‘Deed’) executed by the Appellant and on behalf of the Respondent dated 16 August 2006. That Deed came into being, it seems, at the time of settlement of proceedings commenced by the Appellant against his employer with respect to alleged unfair dismissal. The Deed includes, under the heading “Recitals and Warranty”:
“E.The Releasor warrants that as and from 15 September 2005, he was ready, willing and able to return to full employment duties without restriction or limitation.”
Under the heading “Confidentiality” the following appears in the Deed:
“4.3The Releasor permits the Releasee to tender this Deed in any workers compensation proceedings which the Releasor may bring.”
A report from Dr Klaas Akkerman, Psychiatrist, dated 17 December 2004 was before the Arbitrator. Dr Akkerman had been qualified on behalf of the Respondent to provide the report. Dr Akkerman recorded a detailed history which notes conflict between the Appellant and the Clinical Director of the Respondent Service. Difficulties with a staff member is also noted as was the fact that a grievance had been filed against both the Appellant and his partner in August 2004. It was further recorded that the Appellant had gone off work on 25 October 2004 and had remained off work. It was Dr Akkerman’s opinion that the Appellant suffered from an Adjustment Disorder. Dr Akkerman also expressed the view that the Appellant suffered no permanent impairment and that he expected that once the issues summarised in his report had been addressed the Appellant could return to work to perform full duties.
There was a document headed “Briefing Note” in evidence before the Arbitrator. This document also formed part of the Appellant’s evidence and its contents are addressed in the second Statement of the Appellant as noted above. This document purports to summarise the circumstances concerning the filing of a grievance against the Appellant, the appointment of an external investigator, Ms Helen Colbey, and the sequence of events in October 2004 which gave rise to a decision to transfer the Appellant from Lithgow to Bathurst or, alternatively, that leave could be taken.
Correspondence dated 22 October 2004 from the Respondent to the Appellant which purports to confirm the “outcome” of the meeting which occurred on that day was before the Arbitrator. That correspondence noted that as from Monday, 25 October 2004 the Appellant was to be transferred to the laboratory at Bathurst and that the transfer would extend until the current investigation into allegations which had been made regarding the Appellant’s conduct had been finalised. The correspondence confirmed the alternative proposal that the Appellant may take leave. It was confirmed that the proposal was “not a disciplinary action” and it was stated that “the move to Bathurst is intended as a protected measure, both for you and for those who remain at Lithgow”.
A report by Helen Colbey dated October 2004 relating to her investigation into alleged inappropriate conduct by the Appellant was also before the Arbitrator. That document contains exhaustive detail as to allegations and the process of investigation adopted by Ms Colbey. Ms Colbey recommended that the Respondent should consider the findings of the investigation for the purpose of determining whether disciplinary action is warranted against Mr Kleinbergs in relation to 13 specified matters which are noted at pages 29 and 30 of that report. Other recommendations were made by Ms Colbey including implementation by the Respondent of a “formal performance management program” to address certain aspects of the Appellant’s performance as Chief Scientist which had been determined to be inadequate. Those matters are summarised at pages 30 and 31 of the report. A number of further recommendations by Ms Colbey are recorded at pages 31 and 32 of the report and include the following:
“(4) CWPS and MWAHS should consider relocating Mr Kleinbergs and/or Ms Booth to another Laboratory to overcome the perceived and actual conflict of interest in the situation where they are partners and Ms Booth directly reports to Mr Kleinbergs.”
The report of Ms Colbey includes reference to an earlier “review” conducted by Ms Rosemary Howell. Ms Colbey expressed the view that the recommendations made by Ms Howell in her report were “relevant to the matters that are the subject of this grievance investigation”. Ms Colbey also noted that the Appellant stated that he had received no formal advice relating to the findings or recommendations of the review conducted by Ms Howell.
A report from Protocol Investigations dated 8 February 2005 prepared at the request of the Respondent’s Insurer was before the Arbitrator. This report included copies of Statements by Mr Richard Elligett, the Respondent’s Human Resource Manager, Ms Margaret Barker, the Respondent’s Business Manager as well as a copy of a Memorandum prepared by the Appellant dated 20 October 2004 concerning “Changes to be Instituted at Lithgow CWPS”.
Also attached to the report of Protocol Investigations was a copy of Minutes of Meetings held at Lithgow Community Hospital on 22 October 2004 which purport to record events which took place at two meetings on that day.
A report of Dr Leonard Lee, Consultant Medico-Legal Psychiatrist was also before the Arbitrator. Dr Lee examined the Appellant having been qualified by the Respondent’s Solicitors. The report contains a detailed history of the Appellant’s difficulties encountered at his workplace including problems experienced with his “boss, Mr (sic) Guinness”. It is recorded that these problems began in 2001 or 2002. The formal investigation carried out by Ms Howell is noted and it appears that the Appellant informed Dr Lee that he had been “cleared by Ms Howell”. Dr Lee’s history also includes details of problems encountered by the Appellant in his dealings with Ms Gardiner. The history includes a notation of a further “external investigation” which followed complaints against the Appellant. The Appellant informed Dr Lee that the investigation “almost completely vindicated” him with the exception of one minor criticism. The matter of transfer to the Bathurst laboratory, or alternatively taking leave, is also recorded. Following the consultation and consideration by Dr Lee of certain documentary material which is noted in his report he concluded as follows:
“… I consider that any psychiatric disorder secondary to employment is dubious.”
Dr Lee also expressed the view:
“In my opinion, the evidence shows that it is uncertain that he is genuinely unfit for work in any manner. I have found evidence that he is exaggerating his memory impairment. In my opinion, the prognosis in this case is for ongoing declaration of impairment whether or not this is genuinely so.”
SUBMISSIONS AND FINDINGS
The Appellant’s grounds of appeal which have been summarised in paragraph 12 above challenge the manner in which the Arbitrator approached his fact finding and challenges the conclusions of fact reached by him. In the circumstances it is convenient to examine the Arbitrator’s Reasons to identify those matters of fact which were determined by him.
The Appellant’s medical evidence with respect to the issue of injury was accepted by the Arbitrator (paragraph 35 of Reasons). The finding characterises the injury as one:
“which would fit within the definition of psychological injury set out in section 11A of the 1987 Act.”
The Arbitrator proceeded to find that, given that the injury occurred at work as a result of a directive from his superiors, the Appellant’s “work” was a substantial contributing factor to his injury.
The Arbitrator gives particular attention to the “date of injury” at paragraph 36 of his Reasons. He notes that the Applicant alleges the date of injury as being 22 October 2004 and that the ARD noted that the injury “is caused by the nature and conditions of employment”. The Arbitrator rejected that last allegation and stated as follows:
“It has been conceded by the Applicant that the incident of 22 October 2004 when the Applicant was interviewed in the presence of his partner and his Union Representative and told that pending the outcome of the investigation being carried out by Ms Colbey he was to be transferred from the Respondent’s facility at Lithgow to the Respondent’s facility at Bathurst is the incident which triggered the Applicant’s condition.”
It is clear that the Arbitrator, in concluding as above quoted with respect to “date of injury”, had placed reliance upon what was stated by the Appellant’s legal representative at the hearing. That hearing was recorded and there is a transcription of submissions put on behalf of each party (‘Transcript’). It appears in that Transcript (p. 7) that during the Respondent’s Counsel’s submissions with respect to the question of causation of injury there was recorded the following statement made by the Appellant’s legal representative:
“MR COLLINS: Can I just stop my friend? To cut to the chase, we don’t disagree that the substantive insult is the transfer. It’s the reasonableness or otherwise of the transfer.”
The Transcript thereafter records the Respondent’s Counsel addressing on the question of reasonableness of the Respondent’s action with respect to the proposed transfer.
The Arbitrator proceeded at paragraphs 36 to 39 to briefly summarise evidence relating to the question of causation of the injury as found. His conclusion is recorded at paragraph 39:
“39.I find that as conceded by the Applicant, it was the incident of 22 October 2004 which caused the Applicant’s injuries.”
The Arbitrator proceeded to consider the operation of section 11A(1) of the 1987 Act. That subsection provides:
“11A (1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provisions of employment benefits to workers.”
There is no reference in the course of the Arbitrator’s Reasons to the terms “wholly or predominantly” as they appear in that subsection. Notwithstanding the absence of reference to this wordage it is clear, in my opinion, that, as a matter of fact, the Arbitrator has concluded that the incident of 22 October 2004 was the sole or predominant cause of the subject injury. It was stated by the Arbitrator (at paragraph 43 of Reasons):
“43.The evidence is that it was the transfer of the Applicant from the Lithgow laboratory to the Bathurst laboratory which was the major incident that precipitated the Applicant’s condition into a psychological injury.”
As noted above that evidence was accepted by the Arbitrator and it is my view that any omission to make strict reference to the statutory terms as they appear in the relevant subsection does not constitute error in any relevant sense on the part of the Arbitrator. (cf State Transit Authority of NSW v Chemler [2006] NSWCA 249 (‘Chemler’))
The Arbitrator, following his determination that the subject injury was caused by his employer’s actions with respect to transfer proceeded to consider the question as to whether such action was “reasonable” within the meaning of the subsection. The Arbitrator’s conclusion was as follows:
“45.In my view, the Respondent has acted reasonably and appropriately with respect to the Applicant in terms of section 11A of the 1987 Act. No compensation is therefore payable and it is not therefore necessary to address the submissions regarding incapacity.”
The five “grounds” of appeal relied upon by the Appellant are supported by submissions which do not make specific reference to the evidence, findings and reasoning in the context of the individual grounds. Those submissions constitute a detailed summary of matters relevant to the relationship between the Appellant and his fellow workers and matters relevant to the actions of the Respondent concerning management of conflict within the Appellant’s workplace. That summary appears under the heading “Background”. Much of that portion of the Appellant’s Submissions address matters which it is suggested arise for consideration having regard to the provisions of the Hospital Scientists (State) Award. As noted above such award is not in evidence nor were those arguments advanced before the Arbitrator and I disregard them in this appeal. Much of the material also canvasses matters of fact which were the subject of submissions before the Arbitrator. Reference is also made to the “unlawful termination” of the Appellant which is said in the Submissions to have occurred in October 2005. That matter was not the subject of evidence before the Arbitrator (with the exception of the Deed of Release and matters which may be implied therefrom) nor were those arguments advanced before the Arbitrator. I disregard those arguments and submissions in this appeal.
The Appellant’s Submissions do include enumerated arguments under the heading “Reasonableness”. These submissions appear to be intended as supports for grounds 1 and 2 of the Appellant’s “grounds” of appeal.
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that afore mentioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
The Appellant’s first ground of appeal is stated as follows:
“1.The Arbitrator failed to provide reasons or adequate reasons in finding section 11A applicable.”
This ground appears to be directed to the Arbitrator’s finding as to the “reasonableness” of the Respondent’s action with respect to the transfer to Bathurst. As was stated by Geraghty J in Irwin v Director-General of School Education (14068/97, unreported, 18 June 1998):
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of “reasonableness” is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
Much of the argument put on behalf of the Appellant in this matter addresses the question of “reasonableness” of the Respondent’s action with respect to matters other than the transfer. Having regard to the Arbitrator’s finding as to causation it was, in my opinion, necessary to examine the Respondent’s actions with respect to the transfer rather than conduct an examination of the Respondent’s actions generally with relation to conflict and complaint within the workplace.
The Arbitrator has plainly accepted that the Respondent’s action was prompted by reason of the delivery by the Appellant to staff members of a memorandum at a time when a report from an independent investigator was pending. The Arbitrator also accepted that the objective of the Respondent in proposing the transfer was to ensure the safety of all concerned. It is my view that the Arbitrator’s factual conclusion as to reasonableness was reached following reference to the relevant evidence and in a manner which reveals his process of reasoning as required by law (see Beale v GIO of NSW (1997) 48 NSWLR 430 per Meagher JA at 443 (‘Beale’)) and I am not satisfied that the Appellant has made out any error in any relevant sense on the part of the Arbitrator in so concluding.
The second ground of appeal is as follows:
“2.The Arbitrator’s decision was against the evidence or the weight of the evidence.”
It is asserted on behalf of the Appellant under the heading “The Appeal” that the Arbitrator’s decision “shows a misunderstanding of the facts or issues between the parties” and that his conclusions were “glaringly improbable” as stated in Sutherland Shire Council v Dietz [2004] NSWCA 53 (‘Dietz’). It is put that such decision, being against the evidence, constitutes error of law.
It is my view that there was abundant evidence before the Arbitrator to permit his conclusions as to injury and the manner in which such was sustained. I am also satisfied that there was an abundance of evidence to found the Arbitrator’s conclusions as to the “reasonableness” of the Respondent’s actions with respect to the transfer. This ground must fail.
Ground 3 relied upon by the Appellant is expressed as follows:
“3.The Arbitrator failed to make findings on facts in dispute such as would enable him to reach his decision. The Arbitrator failed to consider the Applicant’s evidence and in particular the statements of the Applicants. He appears merely to have treated the Respondent’s documents as evidence of fact when they were in dispute.”
As discussed above the issues for determination by the Arbitrator required his assessment of the evidence which related to conduct of the meeting on 22 October 2004. Whilst it is asserted in Submissions under the heading “Background” that it is disputed that the “transfer was agreed upon” there is no direct evidence in the Appellant’s case with respect to this matter. It is plain that the Arbitrator has accepted the contents of the “Briefing Note” tendered on behalf of the Respondent with respect to this issue. It was there noted under the heading “Current Situation”:
“ l Once all parties were re-assembled in the room, Mr Kleinbergs and Ms Booth both indicated, with some reluctance, that they accepted the decision to remove them, temporarily, from the laboratory as long as it was made clear that it was not a disciplinary measure. Mr White undertook to confirm this in writing.”
As I have mentioned above it is my view that it was not incumbent upon the Arbitrator to make determinations of fact with respect to the complex issues relating to conflict in the workplace and the conduct of investigations. I reject the submission that the Arbitrator has failed to consider the evidence relevant to the issues before him and it is my view that this ground must fail.
The fourth ground relied upon by the Appellant is expressed as follows:
“4.The Applicant (sic) failed to make findings on credit in a matter where there was a real and genuine factual dispute.”
The assertion as contained in that “ground” is not in any meaningful way supported by the Submissions accompanying this appeal. In particular the Appellant has not identified the witnesses nor the evidence which it is suggested are in conflict.
In the absence of a specific analysis of the evidence and argument directed to conflict and issues going to credit of particular witnesses I find that this ground has not been made out. It is true that the Submissions contain numerous assertions as to the Appellant’s rejection of certain aspects of the Respondent’s case however no attention is given to the state of the evidence. I might again remark that much of what is raised on behalf of the Appellant has no relevance to the correctness of the Arbitrator’s reasoning process and approach to the evidence, given that the issues addressed in submissions are not relevant to his ultimate determination. I am of the view that this ground must fail.
The final ground relied upon by the Appellant is in the following terms:
“5.The Arbitrator accepted as fact the Respondent’s documentation when those were matters that were in dispute.”
This ground appears to be addressed in the Submissions under the heading “Background” and is directed to the content of the Minutes of the meeting of 22 October 2004 and correspondence bearing that same date addressed from the Respondent to the Appellant.
The Arbitrator has (at par. 43 of Reasons) impliedly accepted the accuracy of the Minutes dated 22 October 2004. Such acceptance was, on the evidence, open to him and I conclude that the Appellant has failed to demonstrate any error on the part of the Arbitrator with respect to his conclusions of fact.
The Appellant submits that the contents of the correspondence dated 22 October 2004 from the Respondent to the Appellant contains erroneous matter in particular that there was “no required protective measure and that there were no risks for staff”. It is further submitted that the contents of the correspondence “misrepresented the status of their (sic) situation at that time and evidence the unreasonableness of the employer by having to so misrepresent in correspondence to them the stated reasons for transfer”. The difficulty with this assertion is that there is no evidence cited to support the suggested misstatements or misrepresentation. It is my view that this ground must fail.
Having regard to my conclusions as to the merits of this appeal as set forth above it is not necessary to address the question as to the admissibility of the Deed of Release (‘the Deed’) and its force and effect. Nevertheless I consider it appropriate to deal briefly with those matters raised with respect to the Deed. The Deed, tendered on behalf of the Respondent, was clearly admissible in evidence before the Arbitrator notwithstanding the “confidentiality” clause. Contrary to what was stated during the course of submissions before the Arbitrator the “no contracting out” provision in workers compensation law in this State remains to be found in the provisions of section 234 of the 1998 Act. Whilst no argument was advanced on behalf of the Respondent that the Appellant had in some manner contracted to forego his rights to compensation benefits, it was asserted that the contents of clause E of “Recitals and Warranty” constituted an admission that as at 14 August 2005 the Appellant was “ready, willing and able to return to full employment duties without restriction or limitation”. I respectfully disagree with the Arbitrator’s view expressed at paragraph 33 of his Reasons with respect to the force and effect of that “warranty”. The clause constitutes, in my view, an informal admission and it is a matter for the fact finder to assess the weight of such evidence in determining relevant questions such as incapacity. Such an admission persists beyond the date it was given but its consequences, so far as entitlement to compensation is concerned, must be assessed in the light of any other evidence adduced with respect to the question of incapacity.
Given that each of the grounds raised by the Appellant have failed, and my view that the Arbitrator’s reasoning process is not vitiated by reason of any error with respect to his adjudication concerning the force and effect of the Deed of Release, his determination must stand.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 9 February 2007 is confirmed.
COSTS
No order as to costs of this appeal.
Kevin O’Grady
Acting Deputy President 4 October 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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