Mid North Coast Local Health District v de Boer - [2013] NSWWCCPD 41

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Mid North Coast Local Health District v de Boer [2013] NSWWCCPD 41
APPELLANT:	Mid North Coast Local Health District
RESPONDENT:	Julianne Kym de Boer
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-10374/12
ARBITRATOR:	Mr R Caddies
DATE OF ARBITRATOR’S DECISION:	15 April 2013
DATE OF APPEAL HEARING:	1 August 2013
DATE OF APPEAL DECISION:	8 August 2013
SUBJECT MATTER OF DECISION:	Total incapacity; ability to earn in the open labour market; relevance of worker’s activities on a farm; whether Arbitrator erred in describing the farm as a “hobby farm”; application of principles in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 to claim for total incapacity up to 31 December 2012; medical evidence; whether medical reports provided a fair climate for the assessment of the opinions expressed; application of principles in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510; whether history in a medical report must accord with the real facts; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; application of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 to a claim for weekly compensation made before 1 October 2012 in respect of weekly compensation payable from 1 January 2013; failure to consider amended definition of suitable employment; failure to consider meaning of “no current work capacity”
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr H Somerville, instructed by DLA Piper Australia
Respondent:	Mr Gilbert, solicitor, North Coast Compensation Lawyers
ORDERS MADE ON APPEAL:	1. The name of the appellant employer on the Certificate of Determination issued on 15 April 2013 is amended to delete North Coast Area Health Service t/as Kempsey District Hospital and insert Mid North Coast Local Health District. 2. Paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, 13 and 14 of the Certificate of Determination dated 15 April 2013 are confirmed. 3. Paragraphs 3, 11, and 12 of the Certificate of Determination dated 15 April 2013 are revoked and the applicant worker’s entitlement to compensation from 1 January 2013 is remitted to a different Arbitrator for re-determination. 4. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

The respondent worker, Julianne de Boer, worked as a theatre nurse for the appellant employer, Mid North Coast Local Health District (the appellant), at Kempsey District Hospital. She alleged that she suffered a psychological injury in the course of her employment with the appellant on or about 27 March 2012.
Ms de Boer’s psychological injury was caused when she was falsely accused by work colleagues of having made a complaint of bullying and harassment against her boss, the hospital’s nurse unit manager. She developed an Adjustment Disorder with Anxiety and has not returned to any paid employment since she stopped work on or about 27 March 2012. She has claimed weekly compensation for total incapacity to date and continuing.
The issues argued at the arbitration were whether Ms de Boer was partially or totally incapacitated, and whether the amendments to the Workers Compensation Act 1987 (the 1987 Act) introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) applied to her claim from 1 January 2013.
The principal focus of the incapacity issue was the nature and extent of Ms de Boer’s activities on a 20-acre farm known as Pipers Creek Grove at Dondingalong near Kempsey on the mid-north coast, on which she and her partner, Ms Gilmour, grow limes and plums on a cultivated area of about eight acres. The second issue turned on whether Ms de Boer was in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments on 1 October 2012 (that is, whether she was an “existing recipient” of weekly payments immediately before 1 October 2012).
In an extempore decision delivered on 2 April 2013, the Arbitrator found that the farm was “essentially in the nature of a hobby farm” and that Ms de Boer had no ability to sell her labour in her injured state. He therefore concluded that she was totally unfit for work from 27 March 2012 to 31 December 2012 and had no capacity for work from 1 January 2013 to date and continuing. He also found that Ms de Boer was not an existing recipient of weekly payments immediately before 1 October 2012 and that the amendments to the 1987 Act introduced by the 2012 amending Act therefore applied to her from 1 January 2013.
The Commission issued a Certificate of Determination on 15 April 2013 in the following terms:
“The determination of the Commission in this matter is as follows:
1.    Finding that the applicant suffered psychological injury on 27 March 2012 resulting in an Adjustment Disorder with Anxiety arising out of and in the course of the applicant’s employment with the respondent to which injury the applicant’s employment was a substantial contributing factor.
2.    Finding the applicant has been totally incapacitated from 27 March 2012 to 31 December 2013.
3.    Finding that she has no current work capacity since 1 January 2013 to date and continuing, namely she has a present inability arising from such injury such that she is not able to return to work, either in her pre-injury employment or in suitable employment.
4. The applicant is not an existing recipient of weekly payments of compensation within the meaning of Part 19H of Schedule 6 of the Workers Compensation Act 1987.
5. Award for the applicant at the rate of $738.83 per week from 27 March 2012 to 25 September 2012 pursuant to section 36 of the Workers Compensation Act 1987.
6. Award for the applicant at the rate of $432.50 per week from 26 September 2012 to 30 September 2012 pursuant to section 37 of the Workers Compensation Act 1987.
7. Award for the applicant at the rate of $439.50 per week from 1 October 2012 to 31 December 2012 pursuant to section 37 of the Workers Compensation Act 1987.
8.    Note that:
(c) [sic] The applicant is in the second entitlement period within the within the meaning of section 32A of the Workers Compensation Act 1987;
(d) [sic] The AWE or pre-injury average weekly earnings of the worker within the meaning of sections 35 and 44C(1) of the Workers Compensation Act 1987 for the purposes of the calculation of weekly payments in the first 52 weeks for which weekly payments are payable is agreed at $838, and is otherwise agreed at $738.83.
9. Finding that the worker has not received any deductible amount as defined by “D” in section 35 of the Workers Compensation Act 1987.
10. Finding that the AWE or pre-injury average weekly earnings of the worker is lower than the MAX both within the meaning of sections 35 of the Workers Compensation Act 1987.
11. Award for the applicant at the rate of $670.40 per week from 1 January 2013 to 26 March 2013 pursuant to section 37(1) of the Workers Compensation Act 1987 (as in force since the weekly payments amendments made by the Workers Compensation Legislation Amendment Act 2012) (being 80 per cent of the AWE of $838 per week).
12. Award for the applicant at the rate of $591 per week from 27 March 2013 to date and continuing pursuant to section 37(1) of the Workers Compensation Act 1987 (as in force since the weekly payments amendments made by the Workers Compensation Legislation Amendment Act 2012) (being 80 per cent of the AWE of $738.83 per week).
13.    That the respondent pay the applicant’s costs as agreed or assessed.
14.    Having regard to the significant and unusual issues of fact and medical causation raised and application of the 2012 amendments all of which necessitated a second arbitration hearing date, I certify the matter is complex and order the costs payable, in respect of both parties, are to be subject to an uplift of 30 per cent.”
The appellant has appealed.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     finding that Ms de Boer’s business was a “hobby” (Ms de Boer’s earning capacity up to 31 December 2012);
(b)     finding that Ms de Boer had no earnings from the business (Ms de Boer’s earning capacity up to 31 December 2012);
(c)     finding that Ms de Boer’s engagement in the business did not demonstrate any capacity for employment (Ms de Boer’s earning capacity up to 31 December 2012);
(d)     accepting the opinions of doctors qualified as experts despite the inaccurate history taken by those doctors (expert evidence), and
(e) failing to consider an appropriate deduction, as defined by “E” in s 35(1) of the 1987 Act, as amended, and failing to apply the correct definition of “suitable employment” as set out in s 32A of the 1987 Act, as amended, when he determined Ms de Boer to have no current work capacity since 1 January 2013 (current work capacity).
The appellant has also sought to tender fresh evidence on appeal and it is convenient to deal with that application after setting out a summary of the evidence tendered at the arbitration. The appellant had also challenged the Arbitrator’s finding that Ms de Boer was not an existing recipient of compensation immediately before 1 October 2012, but withdrew that ground of appeal at the oral hearing.

LAY EVIDENCE

In a statement given to the appellant’s investigators on 24 July 2012, Ms de Boer said that she started work as an enrolled nurse at Kempsey District Hospital in about April 2010. She worked 32 hours per week on a rotating roster. In about June and July 2011, she reduced her hours to “about 2 days per week” to help her father with his bush food farm (Pipers Creek Grove). She returned to her usual hours in August 2011.
Ms de Boer took two weeks’ off work after her father died on 24 January 2012, he having had significant health problems since 2010. She said that the farm “is still there but no one is paying as much attention to it as he did”. He did not have any workers. The main time for picking was May and June. She then gave a detailed outline of the circumstances that caused her injury, which is dealt with below.
With respect to the farm, Ms de Boer said she picked fruit on her father’s farm, but “not to the extent [she] had last year”. She said, “it felt good to get out on the farm and breathing [sic] fresh air a couple of times a week”. Once she picked the fruit, she sent it to the markets in Sydney. It was only herself and her partner, Ms Gilmour, doing this.
She said she was jittery and anxious and could not cope with stress. She would like the anxiety to go away and to get on with her life.
In her statement dated 29 August 2012, Ms de Boer said an angry colleague approached her on 14 March 2012 and asked if she had put in a bullying and harassment complaint against her boss, the nurse unit manager. Ms de Boer had no knowledge of the complaint, but was told that she was one of the complainants. She was shocked and in disbelief. Her heart was racing and she started to cry.
That night she said felt numb, terrified, and anxious. Her head was spinning and she was concerned at the implications for her position in the operating theatre at the hospital, the effect of her working relationship with the nurse unit manager, and her role as a registered nurse. She called in sick the next day and sought advice from a Nurses’ Association representative in Sydney. She did not want anything to do with the complaint and did not want “a black mark against [her] name”.
When Ms de Boer returned to work there was a lot of tension, angst, anger and stress in the operating theatre and the work environment in general. It seemed that people were suspicious of each other, which caused a division between staff members. Ms de Boer had an episode of chest pain and experienced palpitations regularly. She found the work environment “toxic and extremely suspicious”. That she did not know who put in the complaint “exacerbated the feelings of anxiety and tension that [she] was experiencing”.
She said the majority of the staff were “bitching, backstabbing and undermining peoples’ work positions” and she found “this environment extremely difficult to function in”. Because her name was on the complaint, she felt she had lost the respect of her colleagues and that staff were judging her and were cautious of her. She was instructed not to speak about the complaint to anyone (though she did tell the nurse unit manager that she was not the complainant) and that meant she was “unable to clear up the issue”. Because of this, she felt defenceless.
On one occasion, a colleague took Ms de Boer aside and accused her of potentially wrecking the nurse unit manager’s career by complaining about her. Ms de Boer was shocked, as these were the real implications of the complaint. As she could not say anything to defend herself, she walked away completely stressed and upset.
On Monday, 26 March 2012, Ms de Boer was working in theatre with a colleague who was suspected of having made the complaint. As she was unable to discuss the complaint with them, she could not cope and “completely freaked out”. Her pulse and blood pressure were both very high and she felt that either her head or chest was going to explode.
She told the acting director of nursing that she was not managing with everything that was going on in relation to the complaint and burst into tears. She told him that she could not manage working in the stressful environment and that she had regular palpitations. She did not feel she could safely carry out her duties and care for her patients. She requested time off, took two weeks’ annual leave, and saw her general practitioner, Dr Shahkar, who gave her a medical certificate and referred her to psychologist, Allan Anderson.
Ms de Boer did not feel she could return to work as a nurse in the environment where the complaint arose. She added:
“I am not sure what to do now as I don’t feel I have the capacity to work safely as a Registered Nurse as I find it extremely difficult to concentrate on my work duties. I am forgetful, jittery and anxious and am unable to cope with stress.”
Dealing with the farm, Ms de Boer said in her statement of 6 March 2013 that the “business was a hobby farm which operates at a loss” and that she did not earn a taxable income from it. She added, at [24] of her statement:
“I have spent more time on the farm since I have not been at work but the business did not earn any more income in 2012 than in previous years as there is a finite amount of fruit to be picked. [Ms Gilmour] had to help me out during the picking season as I was jittery, forgetful, easily confused and needed direction.”
In her statement of the same date, Ms Gilmour dealt with several issues surrounding the alleged complaint against the nurse unit manager and said that she had never seen Ms de Boer so “upset and traumatised” as she was after being told of the complaint.
With respect to the farm, Ms Gilmour said that the business/partnership that she and Ms de Boer run is a “family Bush Tucker plantation” that was set up by Ms de Boer’s father and brother in the late 1990s. She said it was “classified as a hobby farm and had run at a loss since it was established”. Mr de Boer had run it until 2010 when his health began to deteriorate. Ms Gilmour and Ms de Boer moved from their home in the Blue Mountains to the farm in 2010 and Ms de Boer started work at the Kempsey District Hospital in April 2010. Ms Gilmour started at the hospital a few months later as a casual, and also worked casually at Macksville Hospital.
She said that Ms de Boer took time off in late 2010 to early 2011 to help her father with the farm and to support him with his medical issues. In February 2011, Ms de Boer returned to work doing eight shifts per fortnight. They both worked on the plantation on their days off because Mr de Boer was too weak to work.
Ms Gilmour said that harvest time for the blood limes is from May to September and she recalled Ms de Boer decreased her hours at work (in 2011) to fulfil orders and maintain the farm, but remained on call. In July 2011, Ms de Boer returned to her contracted hours and had no further time off until her father died on 24 January 2012.
In her oral evidence, Ms de Boer said that the farm operates as a partnership (T3.42) and that the income it generates is written off as a loss (T3.49). She agreed that she had always had a role in the farm (T4.2). When she lived and worked in Sydney, she would be “marketing”, trying to “drum up business” (T4.9). She was present when the plants were planted 13–14 years ago. She always had an involvement (in the farm) in some way.
Ms de Boer agreed that she had continued to do some work on the farm following her injury. That work was picking fruit. When asked about marketing, she said that she got phone calls from people who were interested in the fruit, and that she took orders from those people. When it was put to her that she was responsible for taking orders and “running the orders through”, Ms de Boer said that the fruit was picked with Ms Gilmour, boxed and sent away (T4.50).
She agreed that the “main harvest time” (T5.3) was from May to June. When asked about running the farm through the year, Ms de Boer said she did “mowing, weeding, that sort of thing but it’s not like I spend all day, every day on the farm” (T5.9). When it was suggested that she carried out “general maintenance duties” of the farm, Ms de Boer said “yeah mowing” (T5.18). When asked if there was anything else other than the mowing and fruit picking, Ms de Boer said “[t]hat’s essentially what … the business is” (T5.22).
Ms de Boer agreed that, because of her injury, Ms Gilmour had to do more work (as a nurse). When asked if she (Ms de Boer) did the majority of the work on the planation, Ms de Boer said, at T6.48:
“A. Um, well I probably would have been picking a couple - maybe three days a week and [Ms Gilmour] would have been there two of those days a week.”
She agreed that, if she had not been injured, she would have been working at the hospital rather than doing three days a week on the farm.
After asking Ms de Boer about her medical certificates (which certified her unfit for work), the following exchange took place, from T8.1:
“Q. Would you agree then that’s [sic] it’s probably actually fair to say that you can’t - you can work but you can’t work at the hospital in the position that you were in before?
A. I would disagree with that because at the moment and how I’ve been in the last year and whatever, I have had anxiety and it’s just been terrible and I can’t take stress. Working on the farm is just – there’s no stress. It’s just, you know, I just do what I do and that’s it. There’s no outside influences, you know, harassing me or any of this other stuff that’s been going on. So it’s - I don’t think that I am fit for work and um, Dr Parsonage has written a report in relation to that. I know that was a while ago, but he’s suggested, you know, 15 sessions of CBT and I agree that I need that because anything stresses me, like I get anxiety like that and it’s terrible.”
In re-examination, Ms de Boer reaffirmed that the farm runs at a loss. She agreed with Mr Gilbert, her solicitor, that the farm was more of a lifestyle recreational activity than a profit-making venture and that she found the work on the farm “therapeutic” (T9.13). She added (at T9.14) that her counsellor (presumably Allan Anderson) suggested that it was a good thing for her to be doing because she was active doing things on the farm. She said (at T9.19) that she did not think she would be able to work in any environment where she had to interact with other people.

Ms de Boer then gave the following evidence, from T10.28:
“Q. So we’re calling it work but the work you do on the farm doesn’t involve you interacting with anyone else on a daily basis?
A. Not, not on the farm no.
Q. And it doesn’t involve you taking instructions from other people?
A. No.
Q. Or having to work as part of a team?
A. No.
Q. And it doesn’t involve you being under time pressures?
A. Not really, you know, no.
Q. Okay and I think you’ve canvassed this, apart from the hospital, do you think you could work anywhere at the moment outside of the hospital?
A. Not at the moment no, not safely.”
In further cross-examination, Ms de Boer agreed that she interacts with customers over the phone, for example, to take orders. In response to the suggestion that there were time pressures “in terms of getting fruit picked by a certain time for orders”, Ms de Boer said, at T11.23:
“A. But it’s a non-stressful – it’s not - yes I do, I have to get fruit picked for a certain timeframe, but if I, if I can’t do that or we can’t do that, we can’t do that. It’s not like I go oh, you know, I try not to put myself under that pressure because I can’t, I can’t handle it.”

FRESH EVIDENCE

The appellant seeks to tender, as fresh evidence on appeal, two articles that appeared at page three of the Macleay Argus on 31 May 2013.
The first article is headed “Fears over 42m tower” in which Ms de Boer is described as a “citrus plantation owner” who “has led opposition to a proposed National Broad-band Network (NBN) antenna to be built in the vicinity of homes at Dondingalong” (near Kempsey, where the farm is located).
The article said:
“In a public presentation at the monthly meeting of Kempsey Shire Council last week, Ms de Boer argued on behalf of residents that the antenna tower would dominate the skyline; put potential buyers off acquiring homes in the area; and could contaminate her blood limes, affecting her organic cottage industry.”
In respect of the first article, the appellant’s solicitor, Mr Medak, who did not appear at the arbitration, submitted that Ms de Boer’s ability to lead opposition and make public arguments on behalf of residents demonstrates that she has skills and experience that are transferrable and demonstrate a capacity for employment.
Further, he argued that such activities, and the ability to provide a lengthy interview to a newspaper reporter, were inconsistent with the evidence given by Ms de Boer that she “could not handle any stress” and with the Arbitrator’s finding that she would be unable to work to deadlines or work with other people.
Mr Medak submitted that the article casts doubt upon Ms de Boer’s credit, in particular when she gave the evidence recorded at [34] above. He also relied on Ms de Boer’s evidence (at T9.19) that she did not think she would be able to work in any environment where she had to interact with people, and the evidence reproduced at [32] and [33] above. He submitted that this evidence was inconsistent with the evidence in the articles and the Arbitrator’s finding (at T31.38–40) that “the farm is essentially in the nature of a hobby farm”.
The second article is headed “They’re great with oysters and in beer”. Mr Medak submitted that “[i]t is apparent from this article that [Ms de Boer’s] business produces fruit that has been used on television series such as Master Chef and by Jamie Oliver”. It was reported that they were also served during the French Open and that Ms de Boer told the reporter “we have export agents, who contact us and tell us where they go” and “[w]e’re hoping to have [sic] export them to Sainsbury’s and Tesco (the UK’s two biggest supermarkets)”. Ms de Boer’s partner (Ms Gilmour) apparently said that the business “harvested 170,000 hand-picked blood limes in last year’s season”.
This article concluded:
“The plantation, known as Pipers Creek Grove, also yields other bush tucker – including several species of myrtle and plum.
The cottage industry also produces preserves, syrups, pastes and essential oils.
Ms de Boer hopes to expand the business with a line of bush tucker products for supermarkets.
Currently, the product line is sold at the Visitor Information Centre at South Kempsey.
Blood limes are as versatile as ‘Tahitian limes’, Ms de Boer said.
‘They’re great with oysters, as a garnish, in mayonnaise, for cocktails, and in beer.’”
Mr Medak said that this evidence demonstrates that Ms de Boer’s farming business, which she runs in partnership, is not a hobby and “it would seem that [Ms de Boer] is particularly active in marketing and exporting the product produced by that business”. He added that the article is inconsistent with Ms de Boer’s evidence that harvesting takes place in May and June only, it noting that the fruit is harvested between May and September.
He concluded that the articles are of significant probative value because they have implications for Ms de Boer’s credit, the finding of total incapacity, and the finding that the business is a “hobby”. Therefore, there would be a substantial injustice if they were not admitted on appeal.
At the appeal hearing, Mr Somerville essentially repeated the above submissions. In respect of the fresh evidence sought to be tendered on appeal, he submitted that the articles shed light on the nature of the business and Ms de Boer’s role in it. He said that her activities in the business were commensurate with duties of employment and that the articles gave insight on whether it was a hobby or a viable business. He argued that, contrary to Ms de Boer’s evidence, which was that the business was merely a hobby farm, the articles painted a different picture. She was involved in marketing the business and had export agents. Therefore, there was enough to find that Ms de Boer has transferrable skills. He added that the articles were not in keeping with the medical evidence that Ms de Boer cannot do anything at all, or with a person who is jittery, forgetful, easily confused and needed direction. While nothing in the articles directly contradicted Ms de Boer’s evidence, her evidence was at odds with them.
Mr Gilbert opposed the admission of the articles on the grounds that:
(a)     there is nothing “new” in the articles. Ms de Boer’s participation in the “business” was fully disclosed and ventilated at the arbitration;
(b)     there is nothing in the articles to suggest that Ms de Boer’s participation in the hobby farm business was any more or less than suggested by the evidence at the arbitration;
(c)     there is no evidence to suggest that Ms de Boer’s participation in objecting to the roll out of the NBN infrastructure is indicative or determinative of a capacity to work, particularly having regard to the nature of her injury;
(d)     Ms de Boer has had eight sessions of cognitive behavioural therapy since the arbitration and her condition may have improved as a result, and
(e)     the articles of themselves are therefore of no probative value and could not alter the outcome of these proceedings.
Mr Gilbert added that if the articles were allowed into evidence he sought leave to adduce further evidence to address the inferences the appellant now seeks to draw from them.
The admission of fresh evidence on appeal is governed by s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The admission of such evidence requires leave and is therefore discretionary. The Commission is not to grant leave to a party to rely on fresh evidence on appeal unless it is satisfied that:
(a) the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned, or
(b) failure to grant leave would cause substantial injustice in the case.
Consistent with the subsection, and the principles discussed in Akins v National Australia Bank (1994) 34 NSWLR 155 and Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116, an applicant seeking leave to rely on fresh evidence (or evidence in substitution) must establish:
(a)     that the evidence could not have been obtained with reasonable diligence for use at the arbitration;
(b)     that the evidence is such that there is a high degree of probability that there would be a different result if the evidence had been available to the Arbitrator (whether the further evidence would have produced a different outcome must be addressed in the context of the grounds of appeal as well as separately from those grounds: Tjiong v Tjiong [2012] NSWCA 201 Meagher JA (Whealy and Barrett JJA agreeing) (Tjiong) at [14]);
(c)     that the evidence is credible, or
(d)     that the failure to grant leave would cause substantial injustice in the case.
Essentially, the power to admit fresh evidence (or additional evidence) on appeal exists to “serve the interests of justice in preventing a substantial wrong” (Meagher JA (Beazley and Macfarlan JJA agreeing) in Levy v Bablis [2013] NSWCA 28 at [12]). In an appeal from the Full Court of the Family Court of Australia dealing with what is arguably a broader provision relating to fresh evidence on appeal (s 93A(2) of the Family Law Act 1975) than exists in s 352(6), McHugh, Gummow and Callinan JJ said in CDJ v VAJ [1998] HCA 67; 197 CLR 172 (at [111]):
“Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.”
It is clear that, as they did not exist until 31 May 2013, the articles could not have been tendered at the arbitration on 2 April 2013. Nevertheless, the second article deals with the nature of the farm and the appellant was well aware of the existence of the farm, and Ms de Boer’s involvement in it, because it had been disclosed in her statement of 24 July 2012 to QBE’s investigators. That statement was attached to the investigators’ report to QBE dated 6 August 2012 and was admitted into evidence (along with numerous other documents that dealt with the circumstances of the injury) via an Application to Admit Late Documents dated 20 February 2013.
Apart from issuing a Notice to Produce financial records on Ms de Boer, which she answered, it is not known what further steps the appellant took to investigate the farm’s operations and Ms de Boer’s involvement in it. Ms de Boer was not cross-examined about the documents she produced and, though the documents were not tendered, it was agreed they revealed that the farm ran at a loss. The only evidence about those documents was in re-examination when the following exchange occurred, starting at T8.37:
“Q. Can I just ask you a few questions about that? Would it be true to say that this farm is more of a - well firstly you were issued with a notice to produce all the financial records in relation to your farm, your business?
A. Yes I was.
Q. And you produced all those records?
A. Yes I have.
Q. And you say in your Statement that the farm runs at a loss?
A. Yes.
Q. It’s not a profit making venture?
A. No it’s not.
Q. So is it true to say that this farm is more of a lifestyle recreational activity than a profit making venture?
A. Yeah absolutely, absolutely.
Q. Okay and so it’s treated as a business in the sense that you’ve got an obligation to declare the income to the government?
A. Yes.
Q. But the expenses from the business exceed the income?
A. Correct.”
In the circumstances, it is difficult to see why, with reasonable diligence, the information in the second article (such as it is) could not have been obtained prior to the arbitration. The relevance and probative value of the information in the article and whether there would be a substantial injustice if it were excluded is discussed below.
With respect to the first article, I accept the information in it was not reasonably available prior to the arbitration.
Prima facie, the evidence in the articles is credible, in that it purports to be a firsthand account of statements by Ms de Boer and Ms Gilmour. I therefore accept that, for the first article, grounds one and three for the admission of the evidence have been established. However, with respect to the second article, I do not accept that, with reasonable diligence, the information in it could not have been obtained prior to the arbitration.
For the reasons explained below, I do not believe that, had the articles been available at the arbitration, there would have been a high probability of a different outcome, at least so far as the claim up to 31 December 2012 is concerned, and there is no injustice if they are excluded on appeal.

MS DE BOER’S EARNING CAPACITY UP TO 31 DECEMBER 2012

The Arbitrator’s reasons

The Arbitrator said that the reports of Dr Parsonage were in agreement with Associate Professor Robertson that Ms de Boer “is incapacitated for work on a total basis” (T30.37). He noted the submission by counsel for the appellant, Mr Somerville, that Ms de Boer was undertaking work on the farm and that that activity represented a degree of capacity for work that should be taken into account and that she was not totally incapacitated (T30.43).
He said it was relevant that the farm had always run at a loss and was “not truly a money making venture” (T31.12) and, given its size, was very unlikely to be a money making venture. With regard to Ms de Boer’s evidence in cross-examination, the Arbitrator said, starting at T31.17:
“The Applicant was, with leave, cross-examined by Mr Somerville of Counsel regarding the work on the property or farm. And the Applicant, it was suggested, was capable of working in ventures of this nature. However, the Applicant said that she took orders over the phone. But, if she had to - but if she could not get the fruit, then she could not get it or do it and that the reason for that was that she could not handle any stress. At least that was the gist of what was said in evidence.
I accept that as being the case and essentially the environment in which [Ms de Boer] would work in any income-earning environment would be one where she would be - have to work to deadlines and work with other people. It seems clear from the medical evidence that that is something that [Ms de Boer] has been unable to do. And, given the medical certificates provided up to the present date, I am satisfied that she is still suffering from the same disorder as that which was diagnosed by Dr Parsonage.
He continued, dealing with the question of whether Ms de Boer was totally or partially incapacitated:
“It falls, therefore, to consider what is the - whether or not [Ms de Boer] is truly totally incapacitated. I am of the view that the farm is essentially in the nature of a hobby farm and that [Ms de Boer] has no ability to sell herself in her injured state, having regard to the principles expressed in matters such as William Ball & Co v Hunt [1912] AC 452 HL and Arnott’s Snack Products v Yacob (1985) 155 CLR 171.
It seems to me that [Ms de Boer] is genuinely totally incapacitated and that such work is exceptional work that would have no real saleability on the open labour market. It is unfortunate, given the history of this matter, that [Ms de Boer] has not received any substantial treatment. And it may - it is to be hoped that, with treatment, that her anxiety disorder will abate or improve.”

Submissions

Mr Medak submitted that Ms de Boer, in partnership with Ms Gilmour, runs the business of Pipers Creek Grove. That business grows, markets, and sells “Australian bush food”. Ms de Boer’s evidence was that eight acres were under cultivation and that the business did not make a profit. She conceded in cross-examination that she was working up to three days a week carrying out tasks including fruit picking, taking orders, marketing, liaising with customers, packing orders, mowing lawns and carrying out the general maintenance of the farm.
Mr Medak said that, notwithstanding that the business did not make a profit, it remained a “going concern” and, given the above activities involved in running the business, conceded by Ms de Boer at the arbitration, the Arbitrator erred in “designating this business a ‘hobby’”.
He said that the Arbitrator erred in finding that Ms de Boer had no earnings from the business in circumstances where it was a going concern, notwithstanding that it might show “paper losses”. Ms de Boer has the benefit of these losses to carry through into future years’ trading.
Last, he said that the Arbitrator erred in finding that Ms de Boer was totally incapacitated in circumstances where she conceded that she was able to perform, and did perform, a variety of physical, clerical and administrative tasks.
Mr Medak also said that he repeated the submissions made by Mr Somerville at the arbitration. While that is not a proper way to present an appeal under s 352 of the 1998 Act, which is restricted to the identification and correction of error, I have read the submissions Mr Somerville made at the arbitration and taken them into account on appeal.
Mr Somerville’s submissions at the arbitration may be summarised as follows:
(a)     while the medical reports say that Ms de Boer is entirely unfit, in substance they only deal with Ms de Boer’s ability to undertake her duties at the hospital. In support of this point, he referred to Mr Anderson’s evidence that Ms de Boer was “unfit to return to her old workplace”;
(b)     he said that Mr Anderson’s opinion was an example of an ipse dixit, which was not substantiated by any discussion of the activities Ms de Boer has been carrying out;
(c)     it may well be that Ms de Boer is capable of doing other work, albeit in a less stressful environment in alternative or suitable duties;
(d)     the medical opinions are based on a flawed history because there was no mention of, or attempt to deal with, the work Ms de Boer has undertaken on the farm. There is no suggestion that Ms de Boer is not capable of carrying out the suitable duties she has been doing. Those opinions should be given very little weight and Ms de Boer’s evidence that she does work (for three days per week at various times) should be given weight;
(e)     Associate Professor Robertson’s report should be given “very little weight given that it’s really quite self-contradictory in all of the conclusions that it reaches” (T19.37);
(f)      there is no issue that the farm is a business and Ms de Boer referred to it as such in her statement;
(g)     any suggestion that the duties (Ms de Boer performed) on the farm were therapeutic is incorrect. It may well be that the net effect, or, coincidentally, there is a therapeutic element to the duties Ms de Boer does, but that does not mean they are not duties of employment or duties involved in running a business, and
(h)     Ms de Boer has a capacity to work three days a week and that would be a reasonable figure to arrive at.
Mr Gilbert said that the farm involved a small area under cultivation and was never likely to become a commercially viable enterprise. It was undertaken for “lifestyle reasons” and was more in the nature of a hobby farm. It had previously been operated by Ms de Boer’s father who had recently passed away and held sentimental value for her. She had previously assisted in the maintenance of the farm when her father became ill, but was still able to work almost full-time as a nurse at the Kempsey Hospital.

At the arbitration, Mr Gilbert urged the Arbitrator to give full weight to the evidence from Dr Parsonage about the severity of Ms de Boer’s symptoms. He submitted that the medical evidence was “a one way street” (T14.27) and that there was no dispute about diagnosis and capacity.
Mr Gilbert submitted that the farm was “like someone doing the gardening and the mowing in their backyard” (T14.45). The farm did not produce a taxable income, but ran at a loss and was “therapy”. He said it was a “lifestyle decision” taken with Ms Gilmour when the worker’s father became ill, but she still worked as a nurse. He said that Ms de Boer had no capacity to work in the sense that she could not work in any environment where she was not completely in control of the workplace. He said it was unlikely that, in her current condition, Ms de Boer would be able to interact with people in a timely, responsive and safe manner, particularly in a hospital. No other paid work has been possible in the last 53 weeks.

Discussion and findings

Whether a worker is totally incapacitated for work prior to 1 January 2013 requires consideration of the principles discussed in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 (Wilson) where Mahoney P (Handley and Powell JJA agreeing) observed (at 213):
“The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income...in assessing whether a worker is a wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, ceased when the pain he suffers becomes unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not, as it were, spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which he is to be engaged. The Compensation Court, within the scope accorded to it in this regard, must assess whether, in a case such as the present, the pain and disabilities from which the worker suffers by reason of his compensable injuries are such that he is able to do those things which will permit him to do work in the relevant labour market.”
The above approach was followed in Moran Health Care Services v Woods [1997] NSWSC 147; 14 NSWCCR 499 (Woods). In that case, the Court rejected the employer’s argument that occasional part-time work of a light nature may have been available in the accessible labour market with the result that it was not open to the trial judge to find total incapacity. Mason P (Beazley and Grove JJA agreeing) said at 503:
“In my view the appellant’s ‘eye of the needle’ test does not represent a correct approach to the concept of ‘total incapacity’. There will be a number of cases where, despite evidence or concession that the worker might be able to perform some tasks in some circumstances, such a finding is sustainable in law. After all, a manual labourer who is rendered a quadriplegic may be able to perform tasks using only his or her voice, yet one would not expect to see a finding of total incapacity challenged on the ground of legal error. In this, as in most areas of the law, the requirement of reasonableness and the principles clustering around the maxim de minimis non curat lex have work to do. It must not be forgotten that workers compensation legislation is remedial.”
The Court of Appeal again considered this issue in O’Brien Glass Industries Pty Ltd v Bahmad [2001] NSWCA 224 (Bahmad). In that case, the worker was a glazier who suffered musculoligamentous strains to his back, neck, and arms, as well as bilateral epicondylitis, bilateral carpal tunnel irritation, and an aggravation of degenerative changes in his back and neck as a result of an incident at work on 12 June 1998. He continued to do his normal job, including overtime, until 12 August 1998, when he was retrenched for reasons unrelated to his injury or incapacity. There was no evidence of a change in his incapacity at that time. After he stopped work, he did some unpaid work and small jobs as a glazier, but was otherwise unemployed. Save for Dr Mahony, who said the worker was unfit for work, all other medical experts certified him unfit for strenuous work involving repetitive movements of the hands or static loading. Relying on Woods, the trial judge found the worker to be totally unfit from 12 August 1998.
In dismissing the employer’s appeal, Hodgson JA (Powell and Beazley JJA agreeing) said (at [28]):
“The case of [Woods] referred to by the primary judge establishes that the question of total incapacity is to be assessed having regard to the realities of the labour market. In my opinion also, this is an area where the expertise of the Compensation Court as a specialist tribunal is particularly relevant.”
Dealing with these authorities, Mr Somerville submitted that Ms de Boer’s capacity was not merely nominal, but was significant. He said she could do physical work, and had done it for three days’ per week, and could do marketing and administrative work. I do not accept these submissions.
Mr Somerville’s submissions have ignored the relevant evidence and the principles in Wilson, Woods and Bahmad. In particular, he has ignored Ms de Boer’s evidence that Ms Gilmour had to help her during the 2012 picking season because she (Ms de Boer) was “jittery, forgetful, easily confused and needed direction”. This evidence, set out in Ms de Boer’s March 2013 statement, was not challenged in cross-examination and provides strong support for the Arbitrator’s conclusion on incapacity.
While Ms de Boer agreed that fruit had to be picked for a certain time frame, she added that “if I can’t do that or we can’t do that, we can’t do that”. In other words, she was under no compulsion to get the work done. Consistent with this, she said that she tried not to put herself under pressure. It is therefore difficult to see that such activities can be realistically translated into an employment situation where one has to work to set standards and deadlines. I do not accept Mr Somerville’s submission that employed fruit pickers can work at their own pace, though the position may be different for sub-contracted fruit pickers. It is difficult to imagine fruit growers contracting with someone in Ms de Boer’s condition in 2012.
The suggestion that Ms de Boer has saleable skills in marketing is untenable nonsense. Ms de Boer’s work history has included some unidentified periods working in customer service and then in indigenous health, which led her to a career in nursing. The reference to her having been involved in marketing was when she lived in Sydney, when her father ran the farm, and she would try to “drum up business”. In response to a question about her current involvement in marketing, she said she got phone calls and took orders. That evidence does not demonstrate any saleable skills in marketing on the open labour market accessible to her.
Last, Mr Somerville submitted that Ms de Boer has administrative skills. I assume that these skills are the skills involved in taking and filling orders. Such activities were conducted in the context of a modest farming business where Ms de Boer could set her own hours and work at her own pace, free from the rigours and demands of a normal work environment. I do not accept that it demonstrates any relevant capacity to earn on the open labour market accessible to her.
Moreover, Mr Somerville’s submissions are contrary to the medical evidence, which, as Mr Gilbert pointed out, is unanimous that Ms de Boer is unfit for work. This includes evidence from the treating general practitioner, treating psychologist, and both qualified psychiatrists.
The initial medical certificate issued in this case was by Dr Shahkar on 4 June 2012 in which he certified Ms de Boer unfit from 27 March 2012 to 18 June 2012 because of a generalised anxiety disorder caused by work related stress. Dr Shahkar continued to certify Ms de Boer unfit in several further certificates, the last of which is dated 5 March 2013.
On 4 April 2012, Dr Shahkar referred Ms de Boer to Mr Anderson who has seen her regularly ever since. In his report of 29 January 2013, Mr Anderson recorded that, when he first saw Ms de Boer, she was “distressed, anxious and depressed” after she had been “intimidated and harassed at work by senior staff members”. She was unable to return to work and, even at January 2013, was still “suffering the effects of trauma or rather PTSD (Posttraumatic Stress Disorder)” and “from Depression and Anxiety”.
On the question of Ms de Boer’s fitness for work since 27 March 2012 to date, Mr Anderson wrote:
“In my opinion, Ms de Boer has not been fit for work during the time mentioned above. As far as I can state she is still unfit to return to her old workplace. Any suggestion of doing so fills her with immediate stress and anxiety.”
I do not accept Mr Somerville’s criticism of this opinion as “flimsy”. Mr Anderson’s evidence was in two parts: first, a general statement that Ms de Boer had not been fit for work since 27 March 2012 and, second, a specific statement that she was unfit to return to her old workplace. The specific reference to her old workplace did not diminish the breadth of the first statement.
Based on Ms de Boer’s evidence, Mr Anderson was clearly aware that she was engaged in activities on her farm. That evidence (at T9.14) was that her counsellor suggested that the work on the farm was a good thing for her to be doing because she was active. The reference to her “counsellor” could only have been a reference to Mr Anderson. It follows that Mr Anderson’s report supports the Arbitrator’s finding of total incapacity and I do not accept Mr Somerville’s submission that Mr Anderson only dealt with Ms de Boer’s inability to work at the hospital or that his opinion was a bare ipse dixit. His opinion was clearly based on his expertise as a psychologist, the history he took and his findings on examination.
On 20 July 2012, Associate Professor Robertson, consultant psychiatrist, saw Ms de Boer at the request of QBE. In his report of 25 July 2012, he took a history that Ms de Boer completed year 12, did a secretarial course and had periods working in customer service. She then returned to study and completed a Bachelor of Arts in Archaeology and Anthropology and did some work in indigenous health, which drew her to nursing. She completed her nursing training at Coffs Harbour and worked at Royal Prince Alfred Hospital, Katoomba Base Hospital and then Kempsey District Hospital, as a theatre nurse.
He also took a history of the work circumstances that caused the injury. He recorded that she remained at work but became irritable in the context of significant interpersonal tension that occurred when she confronted her colleagues. She experienced deteriorating mood and anxiety symptoms, became aggressive, at times hostile, frequently losing her temper. These episodes “morphed into episodes of panic in both florid and limited symptoms forms, with a degree of phobic avoidance”.
The Associate Professor noted that Ms de Boer consulted her general practitioner in late March 2012, describing physical and emotional symptoms of anxiety and particularly panic attacks and phobic avoidance, gastrointestinal disturbance, headaches, dry mouth, variable quality sleep, impaired concentration, feeling jittery, excessive worry over minor matters and feeling “quite flat”. She was referred to a psychologist (Mr Anderson).
Associate Professor Robertson said:
“Her symptoms persist in a moderately severe form that are at times quite disabling and she has reduced capacity to participate in maintenance of the household, ongoing interpersonal sensitivity, and tension within her relationship.
She continues to feel incapable of returning to work at the Kempsey Base Hospital, largely attributable to her anxiety symptoms.”
He concluded that Ms de Boer had a Generalised Anxiety Disorder and that she was “unfit for duty as a consequence of her anxiety symptoms”. His differential diagnosis was of an Adjustment Disorder with Anxious Mood. He added that there was a likelihood that the condition may be “chronic relapsing, remitting”, as Generalised Anxiety Disorder tends to follow this natural history.
Dealing with Ms de Boer’s fitness for work, the Associate Professor recorded that he had been asked the following question:
“The worker has been certified as totally unfit for work. Please advise suitability for rehabilitation and return to work on suitable duties including restrictions.”
He replied that Ms de Boer was “currently unfit for employment as a consequence of her anxiety”.
In answer to a question about Ms de Boer’s “current functional capacity, from a psychiatric perspective”, Associate Professor Robertson said there was “significant impairment of vocational and psychosocial functioning as a consequence of her anxiety” that may “mitigate with treatment”. He said that “[h]er employment is precluded by the severity of her anxiety symptoms”. He thought she would benefit from cognitive behaviour therapy.
Mr Somerville’s submission, made at the arbitration, that Associate Professor Robertson’s report should be given very little weight because it was “really quite contradictory in all of the conclusions that it reaches” (T19.37), was surprising and is rejected. Associate Professor Robertson was qualified by Ms Sommerville’s client and tendered in support of its case. He took a detailed history of the consequences of the psychological injury and the effect they had on Ms de Boer. Far from being “self-contradictory”, and far from supporting the appellant’s case, the Associate Professor’s evidence was unambiguously supportive of the Arbitrator’s conclusion on incapacity. His failure to take a history of her activities on the farm are discussed below.
Associate Professor Robertson did not restrict his opinion on fitness for work to work with the hospital, or to work as a nurse, but stated, in unqualified terms, that Ms de Boer was “unfit for employment” and had a “significant impairment of vocational and psychological function”. This was consistent with Ms de Boer’s unchallenged evidence that during the 2012 picking season she was “jittery, forgetful, easily confused and needed direction”, and with her oral evidence (at T8.10) that she did not think she was fit for work.
On 31 October 2012, Dr Parsonage, consultant psychiatrist, examined Ms de Boer at the request of her solicitor. In his report of the same date, he took a similar history to that recorded by Associate Professor Robertson. He recorded, and it has not been challenged by the appellant, that she was not generally an anxious or nervous person and did not worry excessively.
He said that Ms de Boer was most anxious for the first two months after she heard about the complaint (against the nurse unit manager). She was persistently anxious and experienced palpitations and felt jittery and was unable to think clearly. Her sleep was disturbed and she felt “somewhat low” but never regarded herself as depressed and she was able to enjoy and maintain interest in her usual pursuits outside work.
She received about eight sessions of cognitive behaviour therapy from Mr Anderson, which she found helpful. However, about three months ago, her claim for workers’ compensation was denied and she could no longer afford any treatment. She continued to experience anxiety symptoms intermittently and regularly became “highly anxious if she is exposed to reminders of her difficulties at Kempsey Hospital”, for example, seeing staff from the hospital if she goes to the shops. Her confidence and ability to cope with stress was down and she tended to check things excessively.
On mental state examination, Ms de Boer appeared to be mildly to moderately anxious, but not more than mildly depressed and her mood was reactive. He diagnosed Ms de Boer to have an Adjustment Disorder with Anxiety. Her anxiety symptoms were “clinically significant and caused impairment in occupational functioning”. For various reasons, which are not relevant to the appeal, her problem had become “prolonged”.
Dr Parsonage said:
“Ms de Boer has now been off work for more than six months, her anxiety symptoms have become more persistent through the development of understandable avoidance behaviour, increased consumption of alcohol and the absence of ongoing appropriate psychological therapy. Her relationship with Kempsey Hospital has become untenable and her general confidence and capacity to deal with stressors has diminished.
Unless she receives prompt and appropriate therapy and the issues to do with the complaint and interpersonal difficulties at Kempsey Hospital are resolved, it is likely that Ms de Boer will develop a chronic anxiety condition with the risk that it may become complicated by the development of a depressive condition and alcohol abuse.”
He felt that, if the matters were dealt with appropriately, Ms de Boer could make a full recovery, though it was unlikely she would be able to return to work at Kempsey Hospital. There was a risk she would find it difficult to return to other nursing positions, but such difficulties should be able to be overcome with appropriate management.
Dealing with Ms de Boer’s fitness for work, Dr Parsonage said that Ms de Boer was “currently unfit for work due to her anxiety which diminishes her capacity to cope with stressful situations, such as caring for patients”.
He felt that Ms de Boer would benefit from cognitive behaviour therapy designed to help focus on effective anxiety management strategies so she can overcome her current avoidance behaviour and stop unhelpful strategies such as excessive drinking of alcohol. It should also be focused on assisting Ms de Boer’s return to work “in a graded way as soon as she is fit to return to suitable duties”. He thought she would require the equivalent of 15 sessions of psychological therapy to recover sufficiently to begin a graded return to work and then support through a graded return to work.
Though Dr Parsonage referred to Ms de Boer’s diminished capacity to cope with stressful situations by reference to caring for patients, that did not diminish the probative value of his opinion that she was “unfit for work due to her anxiety”. The evidence from Dr Parsonage and Associate Professor Robertson provided strong support for the Arbitrator’s conclusion that Ms de Boer is totally unfit for work.
Moreover, as explained in Wilson, Woods and Bahmad, determining if a worker is totally incapacitated under the law as it existed prior to the amendments introduced by the 2012 amending Act is a practical exercise having regard to the realities of the labour market in which the worker lives. That she may have been able to do some limited activities in the artificial circumstances on her own farm does not establish an ability to earn on the open labour market, unless there is evidence that that kind of special work is available in the labour market accessible to her. There is no such evidence.
Does the fresh evidence make any difference to the Arbitrator’s conclusion on Ms de Boer’s fitness for work?
The first article, “Fears over 42m tower”, reported on a presentation made by Ms de Boer on behalf of residents to Kempsey Shire Council about the proposed construction of an antenna near her farm. I do not accept that the article shows that Ms de Boer has skills and experience that are transferrable, or that it demonstrates a capacity for employment. The submission begs the question: what employment? Other than the jobs dealt with above (fruit picking, marketing and administrative work), Mr Somerville provided no satisfactory answer to that question.

The article does no more than suggest that, several weeks after the arbitration, Ms de Boer made representations in opposition to the construction of an antenna. I do not accept that that demonstrates any capacity for employment. To the extent that it was suggested that the article was relevant to Ms de Boer’s credit, it was never part of Ms de Boer’s case that she was house bound, or incapable of making representations of the kind made to the Council, and I do not accept that the article has undermined her credit.
I do not accept Mr Somerville’s submission that Ms de Boer presented at the arbitration as “profoundly affected”. In support of this submission, he relied on Ms de Boer’s evidence at T8.1, which is reproduced at [32] above, where she disagreed with the proposition that her only restriction was that she could not work at the Kempsey District Hospital. She added that she had anxiety, could not take stress, and there was no stress working on the farm. Her evidence was in the context of her capacity to engage in paid employment and did not suggest that she was “profoundly affected” in the manner submitted by Mr Somerville. I do not believe the first article undermines that evidence or advances the appellant’s position on the question of total incapacity.
The second article, “They’re great with oysters and in beer”, adds some general information about the farm that was not led at the arbitration. Mr Somerville placed great emphasis on the assertion in the article that the farm’s blood limes “have found their way into the kitchens of television series Masterchef and English celebrity Jamie Oliver”, and that, according to the article, there was a hope to export them to Sainsbury’s and Tesco, the United Kingdom’s two biggest supermarkets.
I do not accept that these matters are of any relevance to Ms de Boer’s ability to earn. That limes from the farm have been used on certain television cooking shows is completely irrelevant to Ms de Boer’s ability to earn. The article did not suggest or imply that the limes came to be on those shows because of Ms de Boer’s efforts. It merely said that export agents told Ms de Boer where the limes go. When asked about marketing, she said that she got phone calls from people who were interested in the fruit, and that she took orders from those people. When it was put to her that she was responsible for taking orders and “running the orders through”, Ms de Boer said that the fruit was picked with Ms Gilmour, boxed and sent away (T4.50). I do not accept that the article demonstrates that, in 2012, Ms de Boer had a capacity to work in a marketing position.
Whether the farm is characterised as a “going concern” or as a hobby is of limited relevance to the determination of Ms de Boer’s capacity to earn in the labour market reasonably accessible to her. What is relevant is the value of Ms de Boer’s labour in the open labour market, not in her own protected environment on a small rural holding. As I previously noted, Ms de Boer’s unchallenged evidence was that, in 2012, Ms Gilmour had to help her out during the picking season because she was jittery, forgetful, easily confused and needed direction. Such help would not be available in normal paid employment.
Ms de Boer has always been open and frank about her involvement in the business and nothing in either article suggests otherwise. As Mr Somerville conceded, the articles did not directly contradict her evidence. I do not accept his (contradictory) submission that her evidence was at odds with the articles. Her evidence was that, with the assistance of Ms Gilmour, she was involved in fruit picking and other activities on the farm. She found those activities therapeutic. Having heard and seen Ms de Boer give oral evidence, it was open to the Arbitrator to accept that evidence (as he essentially did) and to find that those activities would have “no real saleability on the open labour market”.
That Ms de Boer hoped to export to Sainsbury’s and Tesco was merely a desire for the future. It was not an indication of her current work capacity. So too was Ms de Boer’s hope to expand with a line of bush tucker products for supermarkets.
I do not accept the submission that the reference in the article to the harvest being between May and September demonstrated an inconsistency in Ms de Boer’s evidence. Ms de Boer’s evidence was that the “main” time for picking was May and June. However, consistent with the article, Ms Gilmour’s evidence was that the harvest time was from May to September. The reference to the harvest time in the article adds nothing to the evidence that was already before the Arbitrator.
On their own, the articles do not undermine Ms de Boer’s case or advance the appellant’s case. Had the articles been shown to Associate Professor Robertson, and had he changed his opinion in light of them, the situation might have been different. That did not happen.
It follows that I do not accept that, at least so far as the claim up to 31 December 2012 is concerned, the information in the articles makes any difference to the outcome and it is therefore not in the interests of justice that they be admitted on appeal and there is no injustice if they are excluded.
Accepting that the “eye of the needle” test does not represent a correct approach to the concept of “total incapacity” up to 31 December 2012, and that it is a “practical exercise”, the Arbitrator’s conclusion that Ms de Boer was totally unfit up to 31 December 2012 was open on the evidence and, regardless of the articles, discloses no error. The application to rely on fresh evidence is therefore refused.

EXPERT EVIDENCE

Submissions

Mr Medak submitted that the Arbitrator erred in accepting the evidence of Dr Parsonage and Associate Professor Robertson that Ms de Boer is totally unfit for work. He said, citing Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510 (Paric), that, in circumstances in which neither doctor was provided with a history of Ms de Boer’s engagement in her business, “there was an incomplete basis for the acceptance of their opinions as to capacity … which prejudiced the Appellant”. He added that the Arbitrator erred in accepting Ms de Boer was totally unfit in circumstances where she conceded that she was able to perform, and did perform, a variety of physical, clerical and administrative tasks.
Relying on Paric, Mr Somerville submitted that the factual premises on which the expert evidence was based were incorrect and the opinions were therefore robbed of validity. He said that the doctors found incapacity in circumstances where Ms de Boer has been doing duties of employment and had a demonstrated capacity for employment.
Mr Gilbert submitted that Associate Professor Robertson had been qualified, and his report tendered, by the appellant and that the appellant now sought to ignore and/or challenge its own expert who stated that Ms de Boer was unfit for employment as a consequent of her anxiety and had “significant impairment of vocational and psychosocial functioning as a consequence of her anxiety”. He added that the appellant had every opportunity to obtain further evidence from Associate Professor Robertson between the commencement of the proceedings and the arbitration hearing, yet chose to do nothing.
Mr Gilbert referred to various parts of the evidence from Dr Parsonage and said that that evidence, along with the evidence from Associate Professor Robertson in relation to Ms de Boer’s work capacity, was “in line with the opinion expressed by the treating psychologist” and the treating general practitioner, and there was no evidence to support the appellant’s submissions.
He said that Ms de Boer had been denied access to treatment, because the appellant had denied liability for the claim, and the uncontroversial evidence was that Ms de Boer was in no condition to be seeking to return to employment and the findings made by the Arbitrator were in keeping with the medical evidence.

Discussion and findings

I do not accept the appellant’s submissions.
The Court of Appeal considered the assessment of expert evidence in the Commission in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399, where Beazley JA observed (Giles and Tobias JJA agreeing), at [82] that:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.”
To the extent that the expert has based his or her opinion on assumed facts, those facts do not have to be the real facts, but only the facts asserted (Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [101]–[102]; [105]–[134] (Rich)). The asserted facts do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” and whether they provide a “fair climate” for the acceptance of the opinion (Paric).
In the present case, the medical experts each recorded a history of the circumstances that caused Ms de Boer’s injury, her personal and relevant medical background, his findings on examination, and his conclusions. Ms de Boer did not provide a misleading history about her activities after she stopped work: she was not asked about it. In the circumstances, the histories recorded provided a “fair climate” for the acceptance of the doctors’ evidence.
The submission that the appellant was prejudiced was surprising. In circumstances where the appellant was well aware of Ms de Boer’s involvement in the farm as early as 24 July 2012, and it (apparently) took no steps to seek Associate Professor Robertson’s opinion on the relevance of that involvement, it is not open to argue that it was prejudiced by the failure to refer to the farm activities in the report.
Furthermore, the attack on the medical evidence is based on the assumption that Ms de Boer’s activities on the farm demonstrated a capacity for employment and, because the doctors were not aware of those activities, their opinions are of no weight. For the reasons explained above, at least for the period up to 31 December 2012, I do not accept that Ms de Boer’s activities on the farm demonstrated a capacity for employment (having regard to Wilson, Woods and Bahmad) in the labour market reasonably accessible to her. It follows that the attack on the medical evidence is without merit.
In any event, as noted above, Mr Anderson had a history of Ms de Boer’s involvement on her farm and it clearly made no difference to his opinion.
In the circumstances of this case, I am satisfied that the history recorded by the medical experts provided a fair climate for the acceptance of their opinions and the Arbitrator did not err in accepting them.

CURRENT WORK CAPACITY

The Arbitrator’s decision

In respect of the period from 1 January 2013, the Certificate of Determination records (at [3]) the following finding:
“that she has no current work capacity since 1 January 2013 to date and continuing, namely she has a present inability arising from such injury such that she is not able to return to work, either in her pre-injury employment or in suitable employment.”
In his reasons, the Arbitrator determined the “degree of incapacity” (T30.27) by reference to the medical evidence. He concluded, as noted at [60] above, that Ms de Boer was “genuinely totally incapacitated and that such work [on the farm] is exceptional work that would have no real saleability on the open labour market”. However, he made no distinction between, or reference to, the test for total incapacity up to 31 December 2012 and the test for no current work capacity after that date.

Submissions

Mr Medak repeated his previous submissions as to why Ms de Boer is not totally incapacitated and added that the Arbitrator should have turned his mind to the definition of suitable employment in s 32A of the 1987 Act, as amended, and erred in not doing so.
Had the Arbitrator considered this definition, he would have found Ms de Boer had an ability to earn in suitable employment because Ms de Boer has education, skills and work experience that permit her to run a small business. She was not, by reason of her injury, prevented from exercising these skills and obtaining further experience in the business subsequent to her injury.
While Ms de Boer lives in a relatively limited labour market, and work facilitating a small business is not otherwise available to her, the legislation proscribes consideration of these factors. The nature of the pre-injury employment is to be discounted.
Even accepting that the farm was a “hobby” and did not result in any actual earnings for the purposes of the definition of “E” in s 35(1), it demonstrates that, having regard to the matters raised above, Ms de Boer has a capacity to earn in suitable employment.
Mr Somerville emphasised that the Arbitrator failed to consider whether Ms de Boer had no work capacity, which is different to total incapacity under the law prior to the amendments introduced by the 2012 amending Act.
Mr Gilbert submitted that the Arbitrator’s failure to refer to s 32A makes no difference to the outcome because, as the Arbitrator found, Ms de Boer is totally unfit for work. He said there was no evidence of any alternative positions for which Ms de Boer would be suitable. Her physical capacity could not be exercised if she did not have the mental capacity to exercise it.
It was therefore not necessary to consider if suitable work is available where she lives because she is not fit for any work. The exercising of some physical capacity on her own farm was not relevant because she cannot function with other people. It was open to the Arbitrator to infer that she was totally unfit for work. He added that, even if Ms de Boer has some capacity for work, it is so minimal that it makes no difference to the outcome.

Discussion and findings

It is first necessary to consider the legislation. The expression “no current work capacity”, in relation to a worker, is defined in s 32A of the 1987 Act, as amended, to mean:
“a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The term “suitable employment” is defined in s 32A to mean:
“employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the WorkCover Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
The Arbitrator did not refer to either of the above definitions, but merely treated the finding of total incapacity as if it was synonymous with the definition of “no current work capacity”. As the above definitions make clear, the two concepts are quite different. While there will be many cases where a worker found to be totally incapacitated under the law as it stood before the amendments introduced by the 2012 amending Act will also have no current work capacity under the new provisions (see, for example, Inghams Enterprises Pty Ltd v Sok [2013] NSWWCCPD 39 at [88]), whether that is so requires a consideration of the evidence in light of the above definitions.
In determining Ms de Boer’s entitlement to weekly compensation from 1 January 2013, the Arbitrator failed to consider the amended legislation and, other than saying that Ms de Boer was “genuinely totally incapacitated and that [work on the farm] is exceptional work that would have no real saleability on the open labour market”, he failed to consider whether, by reference to the amended legislation, Ms de Boer had “no current work capacity” from 1 January 2013. As a result, he erred in his approach and this part of the claim must be re-determined.
Mr Gilbert has invited me to re-determine this question on the basis that, applying the new legislation, Ms de Boer is entitled to the awards entered by the Arbitrator. While that may well be so, given the new tests involved in determining if a worker has no current work capacity, and given that (presumably) Ms de Boer has now had the benefit of treatment that had previously been denied to her (because of the insurer’s denial of liability), and that there will be additional evidence available on the issue of her fitness for work, I believe that the appropriate and fair course is to remit this question to another Arbitrator for re-determination in light of the amendments introduced by the 2012 amending Act. This will enable both sides to tender such further evidence as they consider appropriate and to make any relevant submissions addressing that evidence.

CONCLUSION

The appellant has failed on its first two grounds of appeal and succeeded on the third. The appellant has not challenged the Arbitrator’s findings on Ms de Boer’s average weekly earnings, or his finding that there is no deductible amount (for non-pecuniary benefits provided by the appellant) from those earnings, and those findings are not disturbed. The proper and fair course is for the question of Ms de Boer’s entitlement to weekly compensation from 1 January 2013 to be re-determined in light of such further evidence and submissions the parties may present at a second arbitration.
Due to a mistake in the original Application to Resolve a Dispute, the appellant was wrongly named as North Coast Area Health Service t/as Kempsey District Hospital. That error was repeated in the Certificate of Determination issued on 15 April 2013 and will be corrected in the orders made on appeal.

DECISION

The name of the appellant employer on the Certificate of Determination issued on 15 April 2013 is amended to delete North Coast Area Health Service t/as Kempsey District Hospital and insert Mid North Coast Local Health District.
Paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, 13 and 14 of the Certificate of Determination dated 15 April 2013 are confirmed.
Paragraphs 3, 11, and 12 of the Certificate of Determination dated 15 April 2013 are revoked and the applicant worker’s entitlement to compensation from 1 January 2013 is remitted to a different Arbitrator for re-determination.

COSTS

The appellant has only partially succeeded on appeal. In this situation, and where the written submissions filed by Mr Medak failed to consider the basic authorities on total incapacity prior to the amendments introduced by the 2012 amending Act, thus necessitating the need for an oral hearing, it is appropriate that the appellant pay Ms de Boer’s costs of the appeal. Costs of the second arbitration are to follow the outcome of that arbitration.

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

Bill Roche
Acting President

8 August 2013

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE