Magbula v Life Without Barriers - [2018] WADC 151

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MAGBULA -v- LIFE WITHOUT BARRIERS [2018] WADC 151
CORAM:   PETRUSA DCJ
HEARD:   27 JUNE 2018
DELIVERED          :   12 NOVEMBER 2018
FILE NO/S:   APP 115 of 2017
BETWEEN:   ALICE MAGBULA
Appellant

AND

LIFE WITHOUT BARRIERS
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR DAVIES
File Number             :   A42250 of 2017

Catchwords:

Appeal - Workers' compensation - Psychological injury - Whether failure to consider adjustment disorder - Procedural fairness - Whether sufficient reasons given - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr A A Nolan
Respondent	:	Mr J R Criddle

Solicitors:

Appellant	:	Simon Walters Solicitor
Respondent	:	Moray & Agnew Lawyers

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Re Warden P Roth; Ex parte Cazaly Iron Pty Ltd [No 2] [2011] WASC 343
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331

PETRUSA DCJ:

Introduction

This is an application for leave to appeal and an appeal from a decision of Arbitrator Davies at the Workers' Compensation Arbitration Service. The Arbitrator published written reasons for decision on 15 November 2017. In that decision she dismissed Ms Magbula's application which sought the acceptance of liability, weekly payments of compensation and statutory allowances.
The application for leave to appeal and the appeal were heard together.
In her application Ms Magbula claimed she suffered 'soft tissue injuries to her right hand' and 'psychological injuries' as a result of an assault by a resident under her care at Life Without Barriers (LWB) out of care home placement in Warnbro on 24 May 2015. The 'psychological injury' was particularised in Ms Magbula's outline of submissions dated 2 October 2017 (and confirmed in opening at page 25 [30]) as:
1.Post-traumatic stress disorder (PTSD).
2.Major depressive disorder.
There were initially six grounds of appeal, though grounds 5 and 6 were abandoned at the hearing of the appeal. The remaining grounds of appeal allege errors of law relating to the Arbitrator's decision in respect of the alleged psychiatric injury and the medical expenses. The Arbitrator's reasons are also alleged to be inadequate.
The issues raised then by the grounds of appeal which I am to decide are:
1.Did the Arbitrator err in law by failing to determine whether Ms Magbula suffered a psychiatric injury as defined in s 5 of the Workers' Compensation and Injury Management Act 1981 (WCIMA)?
2.Did the Arbitrator err in law by restricting the ambit of the psychiatric injury suffered by Ms Magbula to post‑traumatic stress disorder (PTSD) and/or a major depressive disorder?
3.Did the Arbitrator err in law by failing to afford Ms Magbula procedural fairness when determining she was not entitled to medical expenses pursuant to cl 9 sch 1 of the WCIMA?
4.Did the Arbitrator err in law by failing to provide adequate reasons for her decision?

Leave to Appeal

Before dealing with these I will briefly outline the legal principles governing this appeal.
Section 247 of the WCIMA enables a party to appeal an Arbitrator's decision to the District Court. Leave to appeal is required and a court is not to grant leave unless 'a question of law is involved'.
An appeal involves a question of law where either an error of law, or an error of mixed law and fact is involved: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
A decision does not involve an error of law unless the error is material to the decision, in the sense that it contributes to the result so that but for the error, the decision may have been different: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [15]. Ignoring for now the limiting provisions of s 247(2)(a) WCIMA, in order to obtain a grant of leave all that an appellant has to show is that there is a real or significant argument to be put which involves a question of law: Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335 [10].
Once it has been established that a ground of appeal involves a question of law, the whole decision of the Arbitrator and not merely the identified question of law is open to review: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18].
If the court decides that a question of law is involved and leave to appeal has been granted, then the District Court is required to undertake a 'real review' of the matter. That review however, is based on the materials that were before the Arbitrator, and is not conducted by way of a hearing de novo: Pacific Industrial Co v Jakovljevic [20], [26].
Where leave is granted and a review is undertaken, an appellant must still, for the purposes of the review, provide a proper basis for disturbing the Arbitrator's decision by pointing to some error in it. An Appellant may not simply invite the court to just ignore the Arbitrator's decision and start again with a view to having the court substitute his or her own decision for that of the Arbitrator: Pacific Industrial Co v Jakovljevic [20], [26], cited in Catholic Education Office of WA v Granitto [2012] WASCA 266 [57].

Grounds 1 & 2 - Did the Arbitrator fail to determine or unduly restrict the ambit of their determination of whether Ms Magbula suffered a psychiatric injury?

Grounds 1 and 2 both involve the Arbitrator's consideration of Ms Magbula's claim that she suffered a psychiatric injury so it is convenient to deal with them together.
The issue, as ventilated by the parties before the Arbitrator, was whether Ms Magbula was suffering from PTSD and/or a major depressive disorder and whether that constituted an injury as defined under the WCIMA.
Ms Magbula relied on the expert opinion of Dr De Felice, whom she consulted 17 months after the incident and then again 22 months after the incident for the purposes of medico-legal reports.
In his report dated 4 November 2016 Dr De Felice concluded that Ms Magbula suffered from PTSD precipitated by the work incident. In his report of 30 March 2017 he was of the opinion that Ms Magbula's PTSD had been complicated by a major depressive disorder.
Dr McCarthy, the psychiatrist engaged by LWB disagreed. Dr McCarthy who saw Ms Magbula four months after the incident, did not consider that she was suffering from an active diagnosable psychiatric disorder. Further, whilst Ms Magbula described ongoing frustration and concern about her future employment, she did not describe any persistent mood symptoms or other significant psychiatric symptoms at the time of his consultation with her on 3 September 2015.
The Arbitrator found that Ms Magbula was not suffering, and had not suffered, from PTSD or a major depressive disorder or major depression as a consequence of the 24 May 2015 incident. In reaching this conclusion, she preferred the evidence of Dr McCarthy: see Arbitrator's reasons pars 70 – 72.
It is not suggested that the Arbitrator was not entitled to make this finding and in fact she was obliged to do so in order to reach a decision. Further, it is not suggested that she applied an incorrect test nor that her reasoning process in arriving at this conclusion was unsupportable.
It is suggested that by limiting her consideration of whether there was a psychological injury to the PTSD and/or the major depressive disorder the Arbitrator did not resolve the dispute. It is submitted that the Arbitrator failed to go on to consider whether the appellant in fact suffered a mild Adjustment Disorder and whether that Adjustment Disorder constituted an 'injury' within the meaning of the WCIMA.
The only reference in the evidence to a mild Adjustment Disorder is found in the two reports of Dr McCarthy. In his report of 10 September 2015, Dr McCarthy said:
Although her response to the incident in the workplace was not without its emotional impact upon her, her psychiatric symptoms scarcely met the criteria for a brief, mild, acute Adjustment Disorder which has now substantially settled. (p 16)
He [Dr Chang] says that she presented to him on 28 May 2015 and was seen to be very emotional, although no obvious bruising was seen on her hand that was deemed as soft tissue injuries. He says he thought her sufficiently distressed to refer her for counselling which she has yet to attend. On that basis, I make a diagnosis of an Adjustment Disorder bearing in mind that her psychiatric symptoms have been mild and have now settled. (emphasis added) (p 18)
If I were to give credence to her offered history, any psychiatric disorder that may be seen as attributable to the incident on 24 May 2015 caused a degree of distress which may just have reached the diagnostic criteria for the diagnosis of an Adjustment Disorder. This was of mild severity and is now in full remission. Full remission means that no significant signs or symptoms of that psychiatric disturbance are currently present. (emphasis added) (p 21)
After his examination of Ms Magbula on 29 June 2017 Dr McCarthy, in his report of 6 July 2017 said at page 34:
I remain of the opinion that although Ms Magbula may have developed a mild Adjustment Disorder after the events of 24 May 2015 it is unlikely to have been more than a mild Adjustment Disorder which was in full remission when I first saw her. (emphasis added)
Ms Magbula did not direct any submissions to whether she had suffered a mild Adjustment Disorder. Counsel for LWB made only a short reference to it in closing submissions. He submitted that if the Arbitrator believed Ms Magbula's evidence as to the history of her reaction to the incident, then Dr McCarthy's views regarding mild Adjustment Disorder should be accepted (see ts 73 line 31 – 35).
In my view, on a fair reading of the Arbitrator's decision as a whole it is clear that she was alive to the issue involving the Adjustment Disorder, but given her findings regarding Ms Magbula's unreliability there was no factual basis for such a diagnosis and it was in effect rejected.
In her reasons the Arbitrator makes specific reference to the Adjustment Disorder in the context of her consideration of the psychiatric disorder. At par 68 she said:
The applicant worker did not argue that an Adjustment Disorder is a disease and therefore an injury within the meaning of section 5(b) or section 5(d) of the Act from which she suffered. There was also no evidence from the applicant worker as to the period, if any, that any such Adjustment Disorder may have caused any incapacity.
As is evident from the extracts of Dr McCarthy's reports referred to in pars 21 and 22 above any opinion he expressed supporting a conclusion that Ms Magbula had suffered a mild Adjustment Disorder was entirely conditional. His opinion was conditional on the Arbitrator accepting the symptoms Ms Magbula described to Dr Chang as recorded in his medical notes.
The Arbitrator specifically did not accept the symptoms as reported by Ms Magbula. At par 73 of her reasons she says:
In addition, the applicant worker describes her symptoms after the accident (Statement, para 43; ABD, 10) as anxiety, depression, a lack of confidence, nightmares and fear of someone coming to her and her family as well as lack of trust towards other people. Given the unreliability of the applicant worker as a witness, it is difficult to conclude that it is more likely than not that she has suffered these symptoms, and continues to suffer them to any degree.
Having made these findings the Arbitrator could not accept any opinion Dr McCarthy may have given about a mild Adjustment Disorder because the facts upon which any opinion was based had not been established. The Arbitrator has thereby rejected any contention that Ms Magbula suffered from an Adjustment Disorder.
Given that the Arbitrator has dealt with the matters raised by Ms Magbula grounds 1 and 2 of this appeal must fail.

Ground 3 - Was there a failure to afford procedural fairness?

At the arbitration Ms Magbula argued that she was entitled to statutory expenses pursuant to cl 17 sch 1 of the WCIMA. In this regard she tendered a number of invoices, only six of which were ultimately pressed. These all related to attendances on Dr Chang (her general practitioner) totalling $478.65.
The Arbitrator found that Ms Magbula had suffered a soft tissue injury to her right hand and fingers as a result of the incident on 24 May 2015. However, the Arbitrator found that there was not any incapacity from those injuries and consequently found that Ms Magbula was not entitled to any statutory expenses.
Clause 9 sch 1 of the WCIMA provides for a worker's medical expenses to be met in circumstances where total or partial incapacity for work does not result from an injury which occurred in the workplace.
Arguably then, Ms Magbula was entitled to have the expenses the subject of the invoices paid.
The Arbitrator gave consideration to giving the parties an opportunity to make submissions in writing regarding this issue but decided not to: see Arbitrator's reasons at par 79.
Ground 3 contends that the Arbitrator's failure to allow Ms Magbula to make submissions in relation to any entitlement under cl 9 sch 1 WCIMA constituted a breach of procedural fairness.
Procedural fairness is a practical concept. The purpose of the law of procedural fairness is to avoid practical injustice. A court in considering whether there has been a denial of procedural fairness must determine whether the decision-maker has departed from the requirements of procedural fairness, by analysing all of the facts and circumstances relevant to this consideration viewed in the context of the statutory framework conferring the relevant power, for the purposes of ascertaining whether there has been practical injustice in the particular circumstances: see Re Warden P Roth; Ex parte Cazaly Iron Pty Ltd [No 2] [2011] WASC 343 [15].
The Arbitrator's decision not to invite submissions as to Ms Magbula's entitlements arose in circumstances where she concluded that Ms Magbula had not in fact personally paid any of the accounts nor could she be satisfied that there was a reasonable possibility that Ms Magbula had done so.
To support this view the Arbitrator correctly observed at par 79 that:
1.The invoices themselves indicate that the accounts were either bulk billed or addressed to GIO Workers' Compensation; and
2.Dr Chang in his report dated 22 March 2017 (that date post‑dating all of the invoices) said, 'All visits were billed to Medicare as GIO declined to pay any bills'.
It is not suggested that the Arbitrator was not entitled to come to the conclusion that Ms Magbula had not paid the accounts based on the evidence before her. Instead it is contended that the legislative provisions relating to Ms Magbula's liability to reimburse Medicare for the expenses would have been drawn to the Arbitrator's attention. Implicit in this submission is that it is a real possibility that Ms Magbula will become liable to reimburse Medicare.
There is no merit to this contention. In the event (unlikely as that might be) that Medicare were to seek reimbursement, Ms Magbula could, given the statutory provisions, recover those monies from the insurer in any event. Clause 9 sch 1 WCIMA provides:
Where total or partial incapacity for work does not result from the injury but the worker is obliged to obtain medical or surgical, dental physiotherapy or chiropractic advice or treatment, clauses 17, 18, 18A and 19 apply in so far as they may be made applicable.
The reference to cl 17 of sch 1 is necessary as it requires that 'in addition to weekly payments of compensation payable, a sum is payable equal to the reasonable expenses incurred or likely to be incurred in respect of ...' reasonable medical treatment (emphasis added).
When read together, clauses 9 and 17 of sch 1 allow Ms Magbula to recover any reasonable medical expenses without any specific order by the Arbitrator. There could not be any practical injustice by the Arbitrator's decision not to invite submissions on this point and so no breach of procedural fairness. Accordingly, this ground fails.

Ground 4 - Are there adequate reasons?

Ground 4 is a complaint about the adequacies of the Arbitrator's reasons.
There is no complaint that the Arbitrator did not properly understand her obligation to give reasons: see Arbitrator's reasons pars 18 ‑ 19. What is contended is that in the circumstances of this case, it was incumbent on the Arbitrator to canvass Ms Magbula's evidence in some detail and to identify which parts were accepted and which were rejected. The relevant circumstances were that Ms Magbula was the only witness called to give oral evidence and the only witness able to give evidence about the mechanism of injury, the injury itself, and the physical and psychological symptoms.
I do not consider that the Arbitrator's reasons were inadequate.
Ms Magbula's evidence before the Arbitrator comprised her written statement which was the entirety of her evidence-in-chief, cross‑examination and some brief re-examination.
Whilst her written statement comprises 46 paragraphs on 11 pages, only three of those paragraphs related to the issues before the Arbitrator: par 34 described the mechanism of the physical injury, par 36 outlined the treatment she received and par 43 listed the symptoms the appellant experienced after the incident. I note that par 43 is in very general terms with no information about the onset of the symptoms, their intensity over time or any other detail.
The cross-examination of Ms Magbula was directed at four very specific areas, namely:
1.Identifying and/or highlighting her unreliability;
2.Identifying inconsistencies;
3.Obtaining admission of her deliberate omissions in the information provided to the various medical practitioners she consulted; and
4.The circumstances of the injury.
The last category was obviously directed to establishing the degree of force that caused the physical injury, and by logical reasoning, the extent of the harm caused. The obvious intent of the other three areas of cross-examination were to undermine Ms Magbula's credibility.
The re-examination sought to ameliorate the effect of the cross‑examination of these issues.
The Arbitrator ultimately made findings as to the credit of the appellant. At par 36 of her reasons the Arbitrator said:
I do not accept that the applicant worker is a reliable witness. ... The applicant worker did not consistently answer questions in a straightforward way. Sometimes her answers were vague, verging on evasive. At other times she was defensive and even tried to justify not having provided certain details to the reporting doctors, such as a prior motor vehicle accident, as she did not think it was necessary. I consider that the applicant's evidence must be treated with caution ... The approach taken by the applicant worker (as illuminated in cross‑examination) ... makes it difficult to determine objectively on the balance of probabilities which of her evidence is accurate and which is not.
Having said this, the Arbitrator did deal specifically with the areas of Ms Magbula's evidence that relate to the circumstances giving rise to the injury, the treatment she received and the symptoms she claimed she suffered after the incident. The physical injury and its mechanism, is dealt with at pars 55 – 57, the treatment is addressed at par 58 and the symptoms are dealt with at par 73. In each case she identified what her findings were on these matters.

A fair reading of the Arbitrator's decision as a whole adequately reveals the basis of her decision and Ms Magbula has not been deprived of the ability to know how those conclusions were reached and which parts of her evidence were rejected or accepted. This ground of appeal therefore fails.
For the above reasons and because no question of law is involved, I refuse leave to appeal. Appeal is dismissed.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
ASSOCIATE TO JUDGE PETRUSA
9 NOVEMBER 2018