McGrath v Nestle Australia Ltd - [2012] NSWWCCPD 3

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		McGrath v Nestle Australia Ltd [2012] NSWWCCPD 3
APPELLANT:		Maria Louise McGrath
RESPONDENT:		Nestle Australia Ltd
INSURER:		Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER:		A1-4444/11
ARBITRATOR:	Mr John Wright
DATE OF ARBITRATOR’S DECISION:		19 September 2011
DATE OF APPEAL DECISION:		18 January 2012
SUBJECT MATTER OF DECISION:		Incapacity; erroneous finding of partial incapacity; failure by the Arbitrator to take into account evidence relevant to matter in dispute; correction of error on appeal.
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Steve Masselos & Co
Respondent:	Edwards Michael Lawyers
ORDERS MADE ON APPEAL:		1. Paragraph 2 of the Arbitrator’s decision made in Certificate of Determination dated 19 September 2011 is revoked and the following orders made in its place: “2. Award for the applicant in respect of total incapacity as follows: (a) $813 per week from 4 August 2010 to 2 February 2011 pursuant to s 36 of the Workers Compensation Act 1987; (b) $516.90 per week as adjusted from 3 February 2011 to date and continuing calculated in respect of entitlement of a worker with a dependent spouse, pursuant to s 37 of the Workers Compensation Act 1987.” 2. Paragraphs 1, 3, 4 and 5 of the Arbitrator’s decision are confirmed. 3. The respondent is to pay the appellant’s costs of this appeal.

BACKGROUND TO THE APPEAL

Mrs Maria Louise McGrath, the appellant, commenced proceedings against her former employer, Nestle Australia Ltd (the respondent) which were heard by Arbitrator John Wright on 11 August 2011. Mrs McGrath established in those proceedings that she had suffered a psychiatric injury in the course of her employment as an area manager by reason of bullying, harassment, inappropriate behaviour and progressive intimidation inflicted upon her by her direct supervisor between January 2010 and August 2010.
Mrs McGrath had commenced employment with the respondent in March 1990. She ceased work by reason of incapacity following her injury on 4 August 2010. A claim made by her seeking workers compensation benefits was declined by the respondent’s insurer on an unknown date (the first s 74 notice). Notice of the insurer’s denial of the claim was again given to Mrs McGrath in correspondence dated 4 November 2010. That correspondence constituted an amended notice issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The second s 74 notice stated that the insurer placed reliance upon ss 4, 9A, 11A, 33 and 60 of the Workers Compensation Act 1987 (the 1987 Act). That denial of liability was elaborated in a further amended notice (dated 17 June 2011) which is addressed in greater detail at [28] below. When the Application to Resolve a Dispute came before the Arbitrator on 11 August 2011 the issues in dispute included a denial of injury; a defence by the respondent alleging that any psychological injury proven had been caused by reasonable action taken or proposed to be taken by it in relation to performance appraisal or discipline, and, in the alternative, the respondent submitted that total incapacity ceased on a date prior to the hearing. It was further asserted by the respondent that any ongoing incapacity that may be found was partial incapacity.
The Arbitrator, following his finding in favour of Mrs McGrath in respect of her allegation of injury, proceeded to determine that the respondent had failed to establish a defence pursuant to s 11A of the 1987 Act. He then considered the question of incapacity. It was Mrs McGrath’s submission that her ongoing incapacity was total and, in the alternative, should incapacity be found to be partial, that she was entitled to an award at the maximum statutory rate payable to a worker with a dependant spouse.
The Arbitrator found that, as a result of the subject injury, Mrs McGrath had been totally incapacitated between 4 August 2010 and 22 January 2011. He proceeded to find that incapacity beyond 23 January 2011 was partial and that her weekly entitlement to compensation was $310 per week from that last date and continuing. It is the latter findings made by the Arbitrator with respect to partial incapacity and quantum of weekly entitlement that are challenged by Mrs McGrath on this appeal.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 19 September 2011 records the Arbitrator’s orders as follows:
“The Commission determines:
1.The Applicant sustained a psychological injury on 29 July 2010
2.An award in favour of the Applicant in respect of weekly compensation in the sum of $813 per week in respect of the period 4 August 2010 to 22 January 2011 on the basis of total incapacity and a sum of $310 per week from 23 January 2011 to date and continuing on the basis of partial incapacity
3.The Respondent is to pay the Applicant’s expenses under section 60 [sic, of] the Workers Compensation Act
4.The Respondent is to pay the Applicant’s costs as agreed or assessed
5.This matter should be certified as complex on the basis of the extensive factual and medical issues requiring a significant amount of additional work and I certify a 20 per cent uplift to both parties as appropriate
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
This appeal was commenced by the filing of an Application - Appeal Against Decision of Arbitrator (Application) on 14 October 2011.

ISSUES IN DISPUTE

The issues in dispute raised on this appeal concern the question as to whether the Arbitrator has erred in the following respects:
(a)     finding that Mrs McGrath was partially incapacitated from 23 January 2011;
(b)     failing to find that Mrs McGrath was totally incapacitated as a result of injury; and
(c)     determining the question of Mrs McGrath’s ability to earn in some suitable employment.
The issues as summarised above have been taken from those submissions which accompany Mrs McGrath’s Application made in respect of this appeal.

ON THE PAPERS REVIEW

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

THRESHOLD MATTERS

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

THE ARBITRAL PROCEEDINGS

The documentary evidence which was before the Arbitrator is summarised at [9] of his Statement of Reasons (Reasons). It was noted by the Arbitrator, at [11] of those Reasons, that agreement had been reached between the parties that the relevant current weekly wage rate was $813 per week and that “[Mrs McGrath’s] weekly earnings uninjured would be $1,010 per week”. No oral evidence was taken at the hearing. A transcript (T) of the proceedings before the Arbitrator has been produced and made available to the parties.

The evidence

Each party relied upon a large volume of documents, most of which related to the defence relied upon by the respondent pursuant to s 11A of the 1987 Act. The evidence which concerns the relationship between Mrs McGrath and Mr Paul Erickson, her immediate superior, and other senior members of the respondent’s staff is not relevant to the matters raised on this appeal and need not be addressed. In the circumstances it is proposed to summarise that evidence relied upon by each party relevant to the issues of incapacity and quantum of weekly entitlement.

Mrs McGrath’s evidence

There are eight statements made by Mrs McGrath in evidence (seven were attached to her Application to Resolve a Dispute, and one was admitted as a late document). The first of those statements dated 26 August 2010, which is 25 pages in length, is the primary statement relied upon by Mrs McGrath and is one prepared by an investigator appointed by the respondent’s insurer. The remaining seven statements are described as “supplementary” statements. Each of those supplementary statements, excluding that which is dated 8 April 2011, address the evidence of those witnesses upon which the respondent relied in mounting its defence pursuant to s 11A.
The first statement contains a comprehensive description of Mrs McGrath’s experiences in the course of her employment between January and August 2010. The consequences of Mrs McGrath’s treatment at work by Mr Erickson had, by August of 2010, caused her to seek treatment from her general practitioner, Dr Edward Lee. Dr Lee was first consulted on 2 August 2010 at which time Mrs McGrath was referred to a clinical psychologist, Ms Derya Guzel. Mrs McGrath first consulted Ms Guzel on 4 August 2010 on which date she ceased work. The evidence establishes that Mrs McGrath has not returned to work with the respondent since that date and has not been otherwise employed. It appears that, in accordance with advice given by her medical advisors, Mrs McGrath resigned from her position with the respondent.
There is no evidence found in any of the subsequent five supplementary statements made by Mrs McGrath which is relevant to the question of the extent of any ongoing incapacity. The sixth supplementary statement dated 8 April 2011, which appears to have been prepared by her solicitors, records that Mrs McGrath remains ‘unfit for work’ (at [5]) and includes the following (at [17]):
“As a result of Nestle’s failure to recognise and investigate my concerns and the ongoing treatment I received from my Operations Manager I cannot envisage ever working again and I certainly I [sic] would never be able to return to work at Nestle”.
Mrs McGrath relied upon a report by Dr Christopher Aristides Canaris, consultant psychiatrist, dated 22 January 2011. Dr Canaris had been qualified to provide an opinion for the purposes of this litigation by Mrs McGrath’s solicitors. Dr Canaris records a detailed history of Mrs McGrath’s experiences in the course of her employment between January and August 2010. Following a mental state examination conducted by him, he expressed the opinion that Mrs McGrath “appears to have developed a major depressive episode coming on in the setting of what from her account appears to have been [sic, an] extremely difficult workplace situation”. Dr Canaris also notes:
“Your client has improved somewhat since departing what seems to have been a highly toxic workplace. However, she has not made a complete recovery and she could not face going back to Nestle. Frankly, assuming the broad accuracy of her account of her dealings with Nestle, a return to her workplace would jeopardise what is to date a fragile improvement. She would need to find work elsewhere – a task for which she understandably lacks the confidence”.
Dr Canaris expressed the following views concerning Mrs McGrath’s future prospects:
“Your client seems to be a resilient woman and may do well once she receives appropriate acknowledgement that she has been through a torrid time and gains access to treatment. The question of a return to work is more problematic. As noted above, a return to Nestle is out of the question barring ironclad guarantees of a safe workplace (which I think your client might find difficult to trust). At her age, she is at a major disadvantage in the job market. She faces the added obstacle of having departed Nestle under the cloud of a worker’s compensation claim with the entire stigma that this entails in the eyes of any prospective employer. Thus, her prospects of returning to work at a similar level seem bleak. Indeed, she would have difficulties getting a job at a lower rate of pay and responsibility for much the same reasons with the added burden of being possibly overqualified and over experienced (employers often look askance at workers applying for jobs requiring less by way of skills and experience than their previous employment believing that something has gone wrong).”
The clinical notes of Dr Lee were admitted into evidence. There are also seven WorkCover NSW Medical Certificates issued by Dr Lee in evidence. Those documents certify that Mrs McGrath was unfit to work between 4 August 2010 and 5 August 2011. The diagnosis noted by Dr Lee in those certificates is “reactive depression from workplace harassment and bullying”. There is also in evidence a letter of referral from Dr Lee to Ms Guzel, psychologist, dated 28 October 2010. The diagnosis stated in that correspondence was one of “adjustment disorder-depression/anxiety secondary to workplace harassment”. There is also in evidence a copy of correspondence, dated 21 May 2011, from Dr Lee addressed to Mrs McGrath’s solicitors in which Dr Lee recommends “that Mrs McGrath should resign effective immediately from her position at Nestle on medical grounds that her condition is caused and exacerbated by her direct connection with her current employer”.
There is in evidence a copy of an email communication from Ms Guzel, psychologist, to Mr Paul Erickson, the respondent’s Field Operations Manager, dated 7 August 2010. The opening paragraph of that email states “[f]urther to our recent discussion, please be advised that I had a review with Mrs McGrath today and feel she needs to remain off work until such time her symptoms dissipate”. Ms Guzel expressed the view in that email that she anticipated that Mrs McGrath would be “off for at least the next two weeks”.
A report of Ms Guzel dated 11 February 2011 is in evidence. That comprehensive report outlines the circumstances in which Mrs McGrath was required to work between January and August 2010. Details of Mrs McGrath’s relevant personal history and medical treatment are summarised in that report. Following conduct by Ms Guzel of a clinical assessment, an opinion was expressed that the symptoms reported by Mrs McGrath “are consistent with someone suffering Major Depressive Disorder, Single Episode (Classification 296.20) as defined by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition”. Under the heading “return to work status” Ms Guzel states the following:
“Based on the WorkCover medical certificates issued by Dr Lee, Mrs McGrath remains certified unfit for work at present. Given her psychological state and the negative impact of the way her claim has been managed to date, this is an appropriate medical certification at present. As for her future prognosis to return to work, that remains guarded due to her psychological state and the unresolved matters with Nestle”.
Mrs McGrath relied upon a copy of correspondence from Ms Guzel addressed to her solicitor dated 20 May 2011. It is stated in that correspondence:
“In my report dated 11^th February 2011, I provided a detailed account of Mrs McGrath’s psychological state and the circumstances that contributed to this. I have recently reviewed Mrs McGrath who has continued to experience the previously mentioned symptoms. At present her condition appears exacerbated by the ongoing uncertainty of her future with Nestle, hence it has been recommended that she resign from her position effective immediately, however continue to pursue her worker [sic] compensation claim to ensure she receives the benefits she is entitled to under the NSW Workers Compensation legislation.
Having discussed the option of resignation with Mrs McGrath it is anticipated that this will assist in her medical condition and enable her to focus on her recovery rather than ruminate over what her employer has in store for her in the future. It has been deemed that Mrs McGrath would not be fit to return to her employment with Nestle on medical grounds at present or in the future.”
A document which takes the form of a questionnaire sent by the insurer to Dr Lee dated 3 June 2011 was admitted by the Arbitrator as a late document. In a response, dated 16 June 2011, to the insurer’s question “what is the anticipated timeframe for [Mrs McGrath] to be able to return to work in her Area Manager position?” Dr Lee stated:
“Given Mrs McGrath’s severity of her psychological symptoms and resulting chronic tension headache with migraine breakthrough she is unlikely to be fit to return to her area manager position part or full time before 6 months and certainly longer. Her return to work in what Dr Canaris (psychiatrist) described as a toxic environment will only serve to exacerbate her condition.”
A second late document, being a further statement (unsigned) by Mrs McGrath, dated 8 August 2011, was admitted by the Arbitrator. That statement generally addresses evidence relied upon by the respondent. In response to evidence of David Faktor, human resources officer of the respondent, Mrs McGrath states, in part:
“I have not been well enough to engage in any discussions with Nestle and I have been following what the Doctor, Psychologist and Psychiatrist have advised me to do”.
The amended and further amended s 74 notices, referred to at [2] above were also relied on by Mrs McGrath. The content of the further amended s 74 notice is addressed below.

The respondent’s evidence

A report of Dr John Albert Roberts, consultant forensic psychiatrist, dated 18 October 2010, was relied upon by the respondent. Dr Roberts had been qualified by the insurer to provide an opinion concerning Mrs McGrath’s condition. Dr Roberts conducted an examination on 5 September 2010 and expressed the opinion that:
“Mrs McGrath has insufficient symptomatology in terms of psychological concomitants of anxiety to permit the diagnosis of a DSM-IV condition. Mrs McGrath is upset by circumstances not to her liking, she is not mentally ill. Not only would the absence of symptoms preclude the diagnosis of a reactive state but her activities is [sic] inconsistent with a mental illness”.
Dr Roberts’s opinion concerning Mrs McGrath’s capacity for work appears in his summary where the following is stated:
“Mrs McGrath is capable of returning to gainful employment, her being absent from work in the absence of a DSM-IV diagnosis is a volitional act designed to manipulate the workplace circumstances”.
The “further amended” s 74 notice referred to at [2] and [25] above included the following matters:
“Reason(s) for the Decision
Liability for your claim for weekly compensation and medical treatment expenses is denied on the basis that you have not suffered a psychological injury within the meaning of the Act or, alternatively, that any psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the insured with respect to performance appraisal or discipline.
Further, and in the alternative, we say that the Section 36 rate claimed by you is excessive.
This decision is made in accordance with Sections 4, 11A, 33, 36 and 60 of the Workers Compensation Act 1987
Issues relevant to the decision
This decision is made based on the evidence of Dr Roberts that you were upset by some circumstances of your employment with the insured and on the basis that emotional upset does not constitute “injury” within the meaning of the Act. In the alternative, we rely on the fact that despite concerns in relation to your interpersonal relationships with Mr Erickson, no issues were raised by you with anyone in authority between 17 February 2010 and a meeting on 29 July 2010 at which your performance was discussed. We rely on factual evidence that a performance improvement plan was issued in November 2009 concerning your area of operations and factual evidence that discrepancies had arisen in relation to an audit which included areas of your responsibility. We say that the meeting was a reasonable response to issues which had come to the attention of the insured and that all actions in relation to the meeting were reasonable and related to performance appraisal or, alternatively, action taken or proposed to be taken in relation to discipline. Finally, we say that the correct Section 36 rate should be $813.60 per week.”

Submissions before the Arbitrator

Counsel appearing on behalf of the respondent, following argument concerning the question of proof of injury and the establishment of a defence pursuant to s 11A, proceeded to deal with the question of proof of incapacity. In summary it was put that any entitlement to weekly compensation would be in respect of a closed period, that is, that Mrs McGrath had no ongoing entitlement to compensation benefits. The evidence of Dr Roberts was relied upon in support of that submission. An alternative argument was put that, upon the basis that ongoing incapacity was found, Mrs McGrath should be found to have “a substantial residual earning capacity”.
Counsel appearing on behalf of Mrs McGrath placed reliance upon the WorkCover certificates issued by Dr Lee in support of an argument that there should be a finding of total incapacity. Counsel further argued that, should a finding be made of partial incapacity, Mrs McGrath’s entitlement “given her pre-injury earnings of $1,010 [per week]” would be to a “full award”. That entitlement, it was argued, was in respect of the “full statutory rate with one dependant being her husband”.
When addressing the question of “quantification of [Mrs McGrath’s] residual work capacity” counsel made reference to her age, her employment history and experience. It was put that, should a finding be made that Mrs McGrath was able to work 20 hours per week, such conclusion would result in calculation of entitlement to weekly benefits at the full statutory rate.

The Arbitrator’s decision

The Arbitrator dealt at first with the issue of injury. His finding that injury had been proven was founded substantially upon the evidence of Dr Lee and that of Ms Guzel (at [90] of Reasons). It was expressly stated by the Arbitrator that the views of those witnesses “should be preferred to that of Dr Roberts”. The Arbitrator considered the defence raised pursuant to s 11A and, as earlier noted, made a finding that the respondent had failed to make out that defence.
The Arbitrator proceeded to address the question as to the extent of any incapacity suffered by Mrs McGrath as a result of the proven injury. The Arbitrator reiterated his acceptance of the evidence of Dr Lee and that of the treating psychologist Ms Guzel (at [108] and [109] of Reasons). Following a brief summary of the entries made by Dr Lee in his clinical notes, the Arbitrator observed that “the notations on the records are consistent with [Mrs McGrath] being totally incapacitated for a substantial period”.
The Arbitrator proceeded to refer to the evidence of Ms Guzel, in particular her expressed opinion that Mrs McGrath would “require psychological treatment and occupational treatment to assist in her return to work”. That evidence, as stated by the Arbitrator, was to be found in Ms Guzel’s report dated 11 February 2011.
The Arbitrator made reference to the evidence of Dr Canaris and it was said (at [110] of Reasons):
“Dr Canaris examined [Mrs McGrath] on 22 January 2010 [sic, 2011]. He is clearly supportive of [Mrs McGrath’s] claim. While he does not comment specifically on work capacity, he does discuss the likely difficulties in returning to the workforce given her age and skill level. I think it is clear that by the time of his report he thought the applicant was no longer totally incapacitated but would face a substantial disadvantage in rejoining the workforce”.
A finding was made (at [111] of Reasons) that Mrs McGrath was “totally incapacitated from 4 August 2010 to 22 January 2011 and entitled to weekly compensation at the rate of $813 per week”.
A further finding was made by the Arbitrator (at [112] of Reasons) that Mrs McGrath had been partially incapacitated from 23 January 2011.
It was acknowledged (at [115] of Reasons) that assessment of Mrs McGrath’s “residual earning capacity was distinctly less easy” to determine than her probable earnings but for injury, which figure had been agreed at $1,010 per week. The Arbitrator proceeded to again consider the medical evidence as well as Mrs McGrath’s work history and employment skills. It was acknowledged by the Arbitrator (at [118] of Reasons) that there were “a number of indicators that would mitigate against an early or easy return to well paid work”. Reference was also made to Mrs McGrath’s age and to her limited computer skills.
It was recorded by the Arbitrator that “[n]o evidence was adduced at [sic] to the earnings of other occupations. Neither counsel suggested specific occupations that might be suitable for [Mrs McGrath]”. In those circumstances he relied upon his “knowledge of the labour market and wages rates to calculate the average weekly amount [Mrs McGrath] would be able to earn in some suitable employment” (at [122] of Reasons).
The Arbitrator concluded (at [123] of Reasons) that Mrs McGrath would, “for example be able to work as a process worker, a console operator, a junior clerical worker, a cleaner or other relatively unskilled work”. He proceeded to find that such work would yield “in the region of $700 per week”. The difference between Mrs McGrath’s probable earnings and her ability to earn as found was noted to be $310 per week. The Arbitrator further found that the reduction of $310 per week in Mrs McGrath’s earning capacity as calculated “is proper in the circumstances” and proceeded to enter an award of weekly compensation in that sum as noted at [5] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

Partial Incapacity

It is convenient to deal firstly with the challenge made to the Arbitrator’s finding of partial incapacity. That finding is found at [112] of Reasons and is as follows:
“In respect of the period from 23 January 2011 I find [Mrs McGrath] to be partially incapacitated with an inability to return to her employment with the respondent. There would appear to be a number of jobs [Mrs McGrath] could be capable of performing, although those employments might be of a part time nature or less well paid than her employment with the respondent and might be intermittent in nature.”
That finding was reached by the Arbitrator having drawn an inference from the evidence of Dr Canaris which he had earlier addressed, as noted at [35] above.
Mrs McGrath, in submissions on this appeal, enumerates three “grounds” challenging the Arbitrator’s finding of partial incapacity. It is suggested that the decision was “against the evidence and against the weight of the evidence”; that the Arbitrator erred in making a finding of partial incapacity as from 23 January 2011, and that the Arbitrator erred in relying on the report of Dr Canaris “to establish a finding of partial incapacity”.
The respondent argues that the complaints made as found in the “grounds” do not constitute properly formulated suggestions of errors of fact, law or discretion but rather are submissions which “simply [seek] to cavil with factual findings made by the Arbitrator which rely on the evidence”.
The respondent is correct to draw attention to the nature of the present appeal, in particular, to the terms of s 352(5) and to the decision of Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 (Raulston) where consideration was given to relevant principle as stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506). The matters elaborated by his Honour the Chief Justice were summarised and suitably adapted in Raulston at [19] as follows:
“(a)   An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’”
It is clear that the evidence of Dr Lee, which had been accepted by the Arbitrator concerning the issue of injury, had been rejected concerning that witness’s certification of ongoing total incapacity. The respondent is correct in its submission (at [10]) that “it is open to a tribunal of fact to accept some parts of a witness’s evidence, including expert opinion, and to reject other parts of that witness’s evidence in order to reach the ultimate findings of fact”.
The respondent, (at [11] of submissions), makes reference to the “comments” of Dr Canaris in his evidence and accepts that the Arbitrator “concluded or inferred that it was the opinion of Dr Canaris that, from a purely medical point of view, [Mrs McGrath] was ... capable of performing suitable duties”. It is also accepted by the respondent that the finding, made by way of inference that total incapacity had ceased by 23 January 2011 was based upon that evidence.
The question raised is whether, in drawing that inference from the evidence of Dr Canaris, the Arbitrator was wrong. Error in so concluding may be demonstrated if those matters discussed in Raulston in [19(c)] noted at [47] above are made out on appeal.
It is not suggested by Mrs McGrath that the evidence of total incapacity found in Dr Lee’s certificates had been “overlooked”. However, it is implicit in submissions (at [2.9]) that the Arbitrator has given too little weight to that evidence when drawing the inference concerning partial incapacity.
The respondent argues, (at [12] of submissions), that the evidence of total incapacity found in those certificates is an unexplained expression of opinion and “constitutes nothing more than a bare ipse dixit”. The respondent’s argument is developed by the assertion that “it was open to the Arbitrator to treat [Dr Lee’s] certificates with a deal of caution given that the focus of [that] attention was whether or not [Mrs McGrath] could return to the ‘toxic environment’ of working with the respondent”. It is further argued that “it could be inferred that [Dr Lee] had not turned his mind to [Mrs McGrath’s] capacity for employment elsewhere [than with the respondent]”.
It may safely be assumed that the respondent’s reference to the term “ipse dixit” has been adopted given the appearance of that term in the decision of Heydon J (as he then was) in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita). That expression may be taken to denote an assertion made without proof. It was made clear by his Honour, relying upon earlier authority (at [59]), that such an assertion will normally carry little weight. It is clear that the respondent’s argument has been advanced to counter any suggestion that the Arbitrator has given “too little weight” to that evidence of Dr Lee.
The respondent’s argument that Dr Lee’s certificate of total incapacity is a “bare ipse dixit” must be rejected. Dr Lee is Mrs McGrath’s general practitioner who has had management of her relevant medical problems since a date before she ceased employment with the respondent. There is much evidence from Dr Lee concerning his treatment of Mrs McGrath and his opinion and prognosis concerning her condition as diagnosed by him. Also before the Commission are copies of his clinical notes. The certificates which contain the relevant certification of total incapacity conform to the requirements of s 65 of the 1998 Act. Each certificate includes a statement as to diagnosis and a confirmation that Dr Lee was of the opinion that Mrs McGrath’s employment was a substantial contributing factor to her injury. A brief statement concerning a management plan is also included in the certificate. That portion of the certificates which address fitness for work, in compliance with the prescribed form of such certificates, makes provision for alternative certifications including “fit for pre-injury duties” as well as “fit for suitable duties” and other categories of fitness. In each certificate Dr Lee certifies Mrs McGrath as being “unfit to work”. Given the form of the certificate, in particular that provision made for certification as being fit for suitable duties, I am of the view that the submission put by the respondent that Dr Lee “had not turned his mind to her capacity for employment elsewhere” should be rejected.
Of importance is the fact that the Arbitrator did not state that such an inference was drawn by him and, perhaps more significantly, the Arbitrator expressed the view that the “notations on the records [of Dr Lee] are consistent with [Mrs McGrath] being totally incapacitated for a substantial period”.
It is also of significance that, when referring to Ms Guzel’s report dated 11 February 2011 (at [109] of Reasons), the Arbitrator made the observation that “[Ms Guzel] does not, however, express a view of [Mrs McGrath’s] fitness for work with any other employer”. That observation was made in disregard of Ms Guzel’s acceptance of Dr Lee’s certification that Mrs McGrath was unfit for work was “appropriate”.
It must be said that the state of the evidence before the Arbitrator concerning the extent of any incapacity suffered by Mrs McGrath as a result of the subject injury is unsatisfactory. That circumstance is not explained by the content of the s 74 notice given the manner in which the matter was conducted by the parties before the Arbitrator. It was then argued by the respondent, in the alternative, that Mrs McGrath was partially incapacitated. No objection was taken to that submission and, further, argument was advanced on behalf of Mrs McGrath founded upon an assumption, made in the alternative to her primary submission, that she was partially incapacitated. I accept the respondent’s argument that Mrs McGrath is bound by the manner in which the case was conducted before the Arbitrator, which argument is raised in a different context to the present. Having said that, it remains to be determined whether the respondent is correct in advancing the argument that, there being an “absence of any clear or probative evidence to the contrary, it was open to the Arbitrator to conclude that Dr Canaris considered [Mrs McGrath] to be capable of employment other than with the respondent as at 22 January 2011” (at [13] of submissions).
I have reached the conclusion that the certificates issued by Dr Lee are each of considerable probative value and that the Arbitrator has given too little weight to that evidence when considering the question of incapacity. I so conclude, in part, having regard to Ms Guzel’s apparent acceptance of the appropriateness of those certifications. That conclusion alone may not be sufficient to justify disturbing the Arbitrator’s finding as to partial incapacity. However there are other aspects of the evidence which have not, it seems, been taken into account at the time the Arbitrator reached his decision on this matter in dispute.
There is, in my view, other probative evidentiary material which goes to the question of incapacity that appears to have been overlooked by the Arbitrator. That material includes the statement made by Mrs McGrath as noted at [16] above that she “cannot envisage ever working again”. That statement was made in April 2011, and a clear distinction is there drawn between inability to resume “working again” and Mrs McGrath’s inability “to return to work at Nestle”.
Other evidence which appears not to have been taken into account by the Arbitrator was the statement made by Mrs McGrath in August 2011 noted at [24] above that she had been following the advice of her medical advisers, including Dr Lee and that it was Dr Lee who continued to certify Mrs McGrath as unfit for work. There is the evidence of Ms Guzel noted at [22] above, that she considered that Mrs McGrath’s condition had been exacerbated by “ongoing uncertainty”. Ms Guzel reported in May 2011 that Mrs McGrath had continued to experience those symptoms reported in February 2011. That evidence, which post dates the finding as to commencement of partial incapacity by approximately four months, has not, it seems, been taken into account by the Arbitrator.
I am of the opinion that the certificates of Dr Lee should be read together with his report, the communication to the insurer and his clinical notes. Such evidence is, in my view, of significant probative value, and further, I consider that the Arbitrator has given too little weight to the totality of Dr Lee’s evidence.
I conclude, on this appeal, that the Arbitrator appears to have either overlooked, or given too little weight to that evidence I have summarised between [58] and [61] above.
I further conclude that the Arbitrator has erred in drawing the inference of partial incapacity from the evidence of Dr Canaris as described above. That error should, if possible, be corrected on this appeal (see discussion in Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 (per Santow JA at [28] and [29]).
Dr Lee certified his opinion that Mrs McGrath has at relevant times remained unfit for work. That certification should, in my view, be taken to address the question of her unfitness for any work and provides an evidentiary basis for a finding of total incapacity.
Ms Guzel, who has had the ongoing management of Mrs McGrath’s therapy at all relevant times, has expressed the view that Dr Lee’s certification is appropriate.
It is also clear that Mrs McGrath herself considered that she was unable to work when making her statement noted at [16] above. She had, properly, followed advice of her medical advisers in August 2011, including that of Dr Lee who had certified her as being unfit for work.
It is my view that the weight of the evidence comfortably supports a conclusion that, as a result of the subject psychological injury, Mrs McGrath has been totally incapacitated for work to date and I so find. In the circumstances the Arbitrator’s finding of partial incapacity should be revoked and the orders concerning weekly payments of compensation should be amended. Appropriate orders appear below.

Quantum of weekly entitlement

In all the circumstances it is unnecessary to consider those arguments advanced by Mrs McGrath challenging the Arbitrator’s quantification of her entitlement to weekly compensation.

DECISION

Paragraph 2 of the Arbitrator’s decision made in the Certificate of Determination dated 19 September 2011 is revoked and the following orders are made in its place:
“2. Award for the applicant in respect of total incapacity as follows:
(a)$813 per week from 4 August 2010 to 2 February 2011 pursuant to s 36 of the Workers Compensation Act 1987;
(b)$516.90 per week as adjusted from 3 February 2011 to date and continuing calculated in respect of entitlement of a worker with a dependent spouse, pursuant to s 37 of the Workers Compensation Act 1987.”

Paragraphs 1, 3, 4 and 5 of the Arbitrator’s decision dated 19 September 2011 are confirmed.

COSTS

The respondent is to pay the appellant’s costs of this appeal.

Kevin O'Grady

Deputy President
18 January 2012

I, CATHRINE LOREN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE