NSW Department of Community Services v Atkinson
[2005] NSWWCCPD 99
•26 August 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:NSW Department of Community Services v Atkinson [2005] NSW WCC PD 99
APPELLANT: NSW Department of Community Services
RESPONDENT: Stephen John Atkinson
INSURER:NSW Treasury Managed Fund
FILE NUMBER: WCC14207-04
DATE OF ARBITRATOR’S DECISION: 13 April 2005
DATE OF APPEAL DECISION: 26 August 2005
SUBJECT MATTER OF DECISION: Fresh Evidence; weight of evidence; discretion; ‘substantial contributing factor’, section 9A of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Hunt & Hunt Lawyers
Respondent: Self Represented
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Stephen Atkinson was the Casework Manager - Out of Home Care at the Coffs Harbour Community Service Centre of the NSW Department of Community Services (‘DOCS’) when, in October 2003, he claims to have suffered a psychological injury arising out of his employment.
The NSW Treasury Managed Fund is the workers compensation insurer for the NSW Government. The fund is managed by GIO Workers Compensation (‘the Insurer’) who appeared for and on behalf of DOCS in the Commission proceedings.
Mr Atkinson represented himself in proceedings before the Arbitrator and in the appeal. The Insurer was legally represented.
Mr Atkinson claims compensation by way of weekly benefits from 16 October 2003 and continuing, and medical expenses. DOCS paid him weekly compensation from 16 October 2003 until 11 December 2003. Liability for the injury was then denied on the basis that the injury was not related to Mr Atkinson’s employment with DOCS and that his employment was not a ‘substantial contributing factor’ to his psychological condition.
Mr Atkinson returned to work on 5 November 2004 and worked for two days per week. He has since had a graduated return to full time work.
The dispute went before an Arbitrator who conducted a conciliation and arbitration on 15 November 2004. On 13 April 2005 the Arbitrator issued written reasons and a ‘Certificate of Determination’, which recorded her decision in favour of Mr Atkinson, awarding him weekly benefits and medical expenses as claimed.
The Insurer lodged this appeal within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). I am satisfied that the amount of compensation at issue in the appeal is at least $5,000 and 20% of the amount awarded in the decision appealed against. Leave to appeal is granted.
The Insurer has requested the matter be determined on appeal by way of an oral hearing. Mr Atkinson also requested an oral hearing. I have before me written submissions by both parties, all of the evidence that was before the Arbitrator and a transcript of the arbitration. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. A Presidential Member is not dealing with the matter de novo. I am satisfied that I have sufficient information to proceed with the review of the Arbitrator’s decision ‘on the papers’, pursuant to section 354(6) of the 1998 Act, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The Insurer submits that the Arbitrator erred in finding that Mr Atkinson’s employment was a ‘substantial contributing factor’ to his psychological condition. It argues that the Arbitrator:
· gave “undue weight” to certain Workcover Medical Certificates provided by Mr Atkinson’s General Practitioner, Dr Whish Wilson and “insufficient weight” to other Workcover Medical Certificates provided by Dr Whish Wilson.
· Erred in accepting the evidence of Dr Cadzow, and
· Erred in rejecting the Insurer’s medical evidence, in particular Dr Akkerman’s report that considered work was not a ‘substantial contributing factor’ to Mr Atkinson’s injury.
In submissions on the appeal the Insurer has not disputed the Arbitrator’s finding that Mr Atkinson suffered an ‘injury’ for the purpose of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Arbitrator found that Mr Atkinson suffered a personal injury on 16 October 2003, at work. She accepted the diagnosis of Dr Cadzow, that Mr Atkinson suffered a ‘Major Depressive Episode’ and ‘Panic Disorder/Attack’.
I note that the Arbitrator’s decision is also not challenged on appeal in relation to her finding that no ‘defence’ is available to DOCS pursuant to Section 11A of the 1987 Act, namely that Mr Atkinson’s psychological injury was wholly or predominantly caused by reasonable action taken, or proposed to be taken by DOCS with respect to ‘promotion’ or ‘discipline’.
The Arbitrator’s order as to costs is also not under challenge on appeal.
The Insurer seeks to have the Arbitrator’s decision revoked and a new decision made in its place in favour of DOCS.
FRESH EVIDENCE
Mr Atkinson submits that the Insurer has sought to have ‘fresh evidence’ considered in the appeal, without properly identifying the ‘ fresh evidence’ or making the proper application. The ‘fresh evidence’ he identifies is the document headed ‘Dr. Whish-Wilson Revised Report’ and a letter from him to Dr Whish Wilson dated 9 June 2004.
The letter of 9 June 2004 and the reports of Dr Nichols were before the Arbitrator at the hearing and are referred to in her reasons (at paragraph 35). The document headed ‘Dr. Whish-Wilson Revised Report’ was not in evidence before the Arbitrator and is therefore ‘fresh evidence’ on appeal.
The Insurer’s legal representative has not made any substantive submission as to why leave should be granted to allow this fresh evidence to be admitted on appeal. Indeed the submission on the appeal filed by the Insurer’s legal representative does not make any reference to ‘fresh evidence’ nor identify that the document in dispute was not before the Arbitrator. It was left to Mr Atkinson, who is not legally represented, to identify this as an issue.
‘Fresh evidence’ on appeal may only be admitted with leave. Practice Direction No 6 provides that:
“In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
I am not satisfied that leave should be granted for the document headed ‘Dr. Whish-Wilson Revised Report’ to be admitted as fresh evidence on the appeal. The Insurer had a fair and reasonable opportunity to put its evidence before the Arbitrator. At the arbitration the Arbitrator considered, and granted, applications by both parties to file late documents. She also made clear ‘Directions’, on 1 February 2005, as to the filing of late documents and did not allow Mr Atkinson to file documents outside of the timetable set by her ‘Directions’.
The filing of evidence is governed by the 1998 Act and the Workers Compensation Commission Rules 2003 (‘the Rules’). The Commission’s procedures are based upon the early filing of evidence, which in turn facilitates early resolution of the dispute. There has been no submission made as to why the two documents could not have been obtained earlier in the proceedings, and what, if any, reasonable diligence was exercised to do so. I am not satisfied that the admission of the document would avoid a substantial injustice to the Insurer, or that its admission is likely to change the outcome of the appeal.
CONSIDERATION
The determination of whether evidence of a fact is sufficiently probative to establish it as proven (in this case ‘on the balance of probabilities’), is a matter for the Arbitrator. In the absence of demonstrable error of fact or law by the Arbitrator, this determination should not be disturbed. The issue of whether or not there is any evidence to support a finding on a particular fact is a question of law (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42).
The Arbitrator’s Reasons
The Arbitrator’s consideration of the evidence and her findings in relation to whether Mr Atkinson’s employment was a ‘substantial contributing factor’ to his psychological injury are set out at paragraphs 35-37 of her decision. In order to better understand the grounds of appeal, I have set out these paragraphs of her decision in full below. I have highlighted in bold the particular parts of the decision that the Insurer had identified as disclosing an error.
“35.In determining the issue of whether the Applicant’s employment with the Respondent was a substantial contributing factor to the Applicant’s injury I have considered all the evidence before me as well as relevant cases [see for example Mercer v ANZ Banking Group (2000) 20 NSW CCR 70)]. It is clear from the leading cases that I must be satisfied that the Applicant’s employment was a substantial factor in the causation of his injury in the sense that it was ‘more than minimal, large or great’. The strong and consistent opinion of the Applicant’s treating doctor, Dr Whish-Wilson, is clear from the many WorkCover certificates he issued. He is satisfied that the Applicant’s employment is a substantial contributing factor to his injury. I have noted above that Dr Whish-Wilson might have been clearer as to diagnosis. In his reports he has changed slightly the wording of his opinion as to the link between the Applicant’ s employment and his injury, and this appears to have been done at the Applicant’s instigation (see his letter to Dr Whish-Wilson of 9 June 2004, as provided at hearing). However in Dr Whish-Wilson’s most recent report I am left with his clear view that the workplace is a contributing factor, and when this opinion is added to his statements in the WorkCover certificates I take the totality of Dr Whish-Wilson’s evidence as supportive of a conclusion that the Applicants [sic] employment was a substantial contributing factor to his injury. Similarly, while Dr Cadzow does not use those precise words I find that from his many detailed reports it is apparent that he considers there is a close and substantial link between the Applicant’s ‘complex’ work issues and the development of his psychological injury. Since I have rejected Dr Akkerman’s diagnosis of ‘Alcohol Abuse’ I place no weight on his conclusions that such an illness is caused only by constitutional factors, that it is not work-related, and that the Applicant’s work is not a substantial contributing factor.
36.In discharging his onus under section 9A of the 1987 Act the Applicant is not required to prove that his employment was the only substantial contributing factor to his injury, and the presence of other stressors (such as personal difficulties in the past) does not negate the prospect of his employment generally being ‘a substantial contributing factor to the injury’ [see for example Manly Pacific International Hotel Pty Ltd v Doyle (1999) 19 NSW CCR 181 (Court of Appeal), as approved in the recent decision by President Justice Terry Sheahan in Department of Education & Training v Jeffrey Sinclair [2004] NSW WCC PD 90]. The Applicant’s treating Psychiatrist, Dr Cadzow, makes it clear that he advised the Applicant to abstain from alcohol given the contribution of alcohol to depression and anxiety. However this background factor does not alter his conclusions as to diagnosis, nor in my view as to causation.
37.In this regard, and although it was not specifically argued before me, I have also considered the Applicant’s excessive intake of alcohol at certain times prior to the incident at work in October 2003 as a relevant factor for the purposes of section 9A(2). In my view, and as submitted by the Applicant, there was at least at times a link between his excessive use of alcohol and the pressures and stresses at work. Therefore although the worker’s lifestyle outside the workplace is a proper matter for consideration under section 9A(2)(f), on the facts of the present case this factor does not alter my conclusion based that on all the evidence before me that the Applicant’s employment was a substantial contributing factor to his psychological injury.”
‘substantial contributing factor’- Summary of Relevant Law
Whether employment was a ‘substantial contributing factor’ to a worker’s injury is a matter for determination on the facts of each case taking into account the factors in section 9A(1) & (2) of the 1987 Act, which provides as follows:
“(1)No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2)The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.”
Section 9A was inserted into the 1987 Act by way of amendment, commencing on 12 January 1997. It applies only to injuries received after that date. The interpretation and application of section 9A have been considered in a number of cases before the Court of Appeal. I extract the following principles from those authorities:
· The “employment concerned” (in section 9A (1)) will include the nature, conditions and obligations of the actual work, and matters incidental to the performance of the actual duties of the employee; Stanton-Cook v TAFE Commission of NSW (1999) 17 NSWCCR 632 at 637.
· It is the same ‘employment’ as that referred to in section 4 and 11A. Mason P in Mercer v ANZ Banking Group Ltd (2000) 20 NSWCCR 70 said at paragraph 22, that:
“. . . the words ‘employment concerned’ in s 9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of ‘a substantial contributing factor to an injury’ is exegeted in s9A(2) and s9A(3).”
· For employment to be a ‘substantial contributing factor’ to injury a causal relationship must be established between the actual work activity the worker was engaged in at the time of the injury, and the injury itself ; Stanton-Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 632; Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46.
· The question of whether employment is a ‘substantial contributing factor’ to an injury “is a distinct and additional question” to whether the injury ‘arose out of or in the course of employment’; Hodgson JA said in McMahon v Lagana & Anor. [2004] NSWCA 164 (at paragraph 33).
· “. . . the fact that an injury arose out of or in the course of employment, while not determinative of whether the employment was a substantial contributing factor, it is not irrelevant either: Supair Pty Ltd v Sweeney (2000) 20 NSWCCR 514 at 516, Mercer (supra) at 747-8”; Chubb Security Australia P/L v Trevarrow [2004] NSWCA 344.
· What constitutes a ‘substantial’ contributing factor is a question of fact to be determined by the Arbitrator on the basis of the evidence in the particular case; Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46.
· “The term ‘substantial’ may have various shades of meaning. Having regard to the context, it may mean ‘large or weighty’ or ‘real or of substance as distinct from ephemeral or nominal’ (Tillmanns Butchery Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 348 per Deane J; Wong v Silkfield Pty Ltd (1999) 73 ALJR 1427 at [27])”; Mercer v ANZ Banking Group Ltd (2000) 20 NSWCCR 70, Mason P, with whom Meagher and Beazley JJA agreed.
· In applying section 9A “…it is the strength of the causal linkage between the ‘employment concerned’ and the injury that is in question”; Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42.
· An employment related contributing factor that is minor in comparison to a non-employment related contributing factor cannot be regarded as ‘substantial’; Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46, Meagher JA.
· There may be factors that support a finding of ‘substantial contributing factor’ but there may also be “countervailing factors”; McMahon v Lagana & Anor. [2004] NSWCA 164 at paragraph 36. It is for the Arbitrator to weigh these factors in the circumstances of the case.
It is evident from the written reasons that the Arbitrator correctly identified the relevant law and did not err in the application of these principles to the determination of whether Mr Atkinson’s employment was a ‘substantial contributing factor’ to his injury.
Dr Whish Wilson’s Evidence
Dr Whish-Wilson is Mr Atkinson’s General Practitioner. The Arbitrator’s consideration of his evidence is set out, in part, above. Essentially she accepted that Dr Whish-Wilson’s evidence was persuasive as to Mr Atkinson’s psychological condition, its cause and whether his employment was a ‘substantial contributing factor’ to it.
The Insurer submits that the Arbitrator erred in concluding that Dr Whish-Wilson’s evidence “ in total supported a conclusion that the applicant’s employment was a substantial contributing factor to his injury”. It refers to the various WorkCover certificates completed by Dr Whish-Wilson and in evidence and points to the fact that on three of these certificates he had not “ticked the ‘yes’ box in response to the questions ‘in my opinion, the worker’s employment is a substantial contributing factor to this injury’”. On nine other occasions he had ticked this box.
The Insurer submits that Dr Whish-Wilson, despite being directly asked by Mr Atkinson, has refused to be drawn on whether his employment was “a ‘sole’ or ‘substantial’ contributing factor to his condition”. The Insurer argues that greater weight should be given to the medical reports provided by Dr Whish Wilson with the only conclusion to be drawn from his evidence being that employment was, if anything, only ‘a’ contributing factor to Mr Atkinson’s condition, and no more.
It was not necessary for the Arbitrator to refer, in her written reasons, to each and every document that was before her. Her task was to distill what she found to be relevant and probative to the matters in issue. The fact that she did not identify the three WorkCover certificates wherein Dr Whish-Wilson did not ‘tick the box’ in relation to ‘substantial contributing factor’ does not mean that she did not read and consider those certificates. She clearly states that she considered the whole of Dr Whish-Wilson’s evidence and makes her factual findings on the basis of the “totality” of the evidence. If there was no evidence to support her conclusion that Mr Atkinson’s employment was a ‘substantial contributing factor’ to his injury then she would have made an error of law. If she made a finding of fact that was clearly not supported by the evidence then she would also have erred.
In my view the Arbitrator has not erred in her interpretation of Dr Whish-Wilson’s evidence. It was not necessary for her to find that Dr Whish-Wilson had used the exact words of section 9A, i.e. ‘substantial contributing factor’ to find that his expert opinion supported such a conclusion. Dr Whish-Wilson is a medical, not legal, expert. The Arbitrator has expressly noted that there are certain ‘inadequacies’ in Dr Whish-Wilson’s reports, and that Mr Atkinson made representations to him concerning the expression in those reports. Notwithstanding those concerns the Arbitrator found that, reading all of Dr Whish-Wilson’s reports together, his expert opinion supported a finding that Mr Atkinson’s employment at DOCS was a ‘substantial contributing factor’ to his psychological injury.
I have read Dr Whish-Wilson’s reports and considered the Arbitrator’s reasons. In my view she was entitled to find that his reports supported Mr Atkinson’s claim and she did not err in doing so.
Dr Cadzow’s Evidence
Dr Cadzow is Mr Atkinson’s treating Psychiatrist.
The Arbitrator accepted Dr Cadzow’s evidence as probative and persuasive in relation to the aetiology of Mr Atkinson’s condition, its diagnosis and treatment plan.
The Insurer submits that Dr Cadzow did not, in any of the eight reports in evidence before the Arbitrator, provide an opinion on the ‘cause’ of Mr Atkinson’s psychological condition or state that his employment was a ‘substantial contributing factor’ to it. The Insurer argues that the Arbitrator was thus wrong to “infer” from Dr Cadzow’s reports that employment was a ‘substantial contributing factor’ to his psychological condition.
The Arbitrator acknowledges, in her written reasons, that Dr Cadzow does not use the words ‘substantial contributing factor’ to describe the link between Mr Atkinson’s employment and his injury. My comments above, at paragraph 29, in relation to this issue in Dr Whish-Wilson’s report are also apt to Dr Cadzow’s reports.
The Arbitrator had several “comprehensive” reports of Dr Cadzow before her. She accepted that as Mr Atkinson’s treating Psychiatrist he saw Mr Atkinson regularly and monitored his condition and treatment. She found that his view was consistent with Dr Whish-Wilson’s, who also saw Mr Atkinson frequently. She contrasted the evidence of both Dr Whish-Wilson and Dr Cadzow with that of Dr Akkerman, who saw Mr Atkinson once, in October 2003.
In my view the Arbitrator has not erred in her consideration of Dr Cadzow’s evidence nor in finding that, when considered in its totality, his evidence supports a finding that Mr Atkinson’s employment with DOCS was a ‘substantial contributing factor’ to his psychological condition. I have read Dr Cadzow’s reports. In nearly every report he wrote over the period from December 2003 to June 2004 Dr Cadzow refers to Mr Atkinson’s issues at his workplace and his psychological symptoms in reaction to them. He describes ?Mr Atkinson’s ongoing difficulties at work and his resultant anxiety, and attempts to try psychological treatment strategies that Mr Atkinson can use to more effectively deal with his workplace and return to his former duties. It appears from Dr Cadzow’s reports that the focus of his treatment of Mr Atkinson was around dealing with the anxiety and other feelings that arose when he was ‘at work’ at DOCS. For example:
·9 December 2003: “Mr Atkinson describes chronic low feelings and a workplace he experiences as hostile. This has been exacerbated by his role as a Union representative and 2 appeals he has made against appointment decisions....His work issues are complex and I will continue to explore these with him.”
·29 January 2004: “He reports feeling ealrighti [sic], however he continues to ruminate about his work...I shall continue to focus on problem solving and his own choices in his sessions.”
·10 February 2004: “He reports that overall, he feels he is getting better. He has had only one episode of chest pain. It was associated with discussing work with colleagues coming to his house.”
·29 March 2004: “Mr Atkinson reported that he collapsed at work on the 16th of October. He described a classic panic attack. The immediate precipitant seems to have been problems with a subordinate and a deadline for data entry due to a computer system change at work....Alcohol Dependence or Abuse have not appeared to be the primary diagnosis in my work with Mr Atkinson. Significantly, he did not experience a reduction in his symptom load during a period of abstinence…Mr Atkinson’s return to work should be closely monitored”.
·30 March 2004; “He is making some gradual improvement and there has also been some progress with his work issues…I have encouraged him to seek an early return to work so as not to worsen any anticipatory anxiety but also because his financial situation is becoming difficult without a regular income. We have discussed the dynamics of his work group including issues of rivalry and competition. I have asked him to spend a set time each day writing down his experiences and their impact but to limit worrying to this times [sic].”
The Arbitrator did not err in finding that Dr Cadzow’s evidence supported a finding that employment was a ‘substantial contributing factor’ to Mr Atkinson’s psychological condition.
Dr Akkerman’s Evidence
Dr Akkerman is a Psychiatrist. He examined Mr Atkinson (once) at the Insurer’s request and provided two reports of his findings, dated 29 October 2003 and 14 May 2004.
The Arbitrator rejected Dr Akkerman’s report. She found that his diagnosis of ‘Alcohol Abuse’ did not account for Mr Atkinson’s psychological condition. As stated above, she preferred the evidence of Dr Whish-Wilson and Dr Cadzow.
The Insurer submits that the Arbitrator was wrong to reject Dr Akkerman’s reports as to Mr Atkinson’s alcohol consumption and his diagnosis of ‘Alcohol Abuse’. It submits that this diagnosis was consistent with notes of Mr Atkinson’s attendance at Coffs Harbour Health Campus and was noted, but not disputed, by Dr Cadzow. Dr Nichols, Mr Atkinson’s former general practitioner, also recorded a high alcohol intake. The Insurer submits that Mr Atkinson’s diagnosis of ‘Alcohol Abuse’ was a relevant factor under section 9A of the 1998 Act and that it supports a conclusion that Mr Atkinson’s psychological condition was “ a constitutional one” and not caused by his employment.
The Arbitrator had evidence of Mr Atkinson’s reported high alcohol intake, before her. She discusses Dr Akkerman’s report at paragraph 32 of the reasons, as follows:
“32As against this evidence [from Dr Whish-Wilson and Dr Cadzow] I find Dr Akkerman’s reports unpersuasive. I find his single and emphatic diagnosis of ‘Alcohol Abuse’ fails to incorporate or explain all the problems, symptoms, and signs exhibited by the Applicant and as recorded in the reports of Dr Cadzow and Dr Whish-Wilson. Both these doctors are congnisant of the Applicant’s past history of excessive alcohol intake, which he admitted to them and to the medical staff of the hospital when he presented. Despite that knowledge, he has been consistently described as suffering from a serious psychiatric condition and none of these doctors added a diagnosis of ‘alcohol abuse’. In this regard I reject the Respondent’s suggestion that in his report of 14 January 2004 Dr Cadzow was expressing his own view that the Applicant’s problems are due to excessive alcohol consumption, and I am of the view that he was merely recording the Applicant’s rejection of the basis of the Respondent’s denial of his claim. In addition the Applicant admitted at hearing that in the past his intake of alcohol had been excessive, but I accept the thrust of his evidence that after he stopped or significantly reduced his alcohol intake his problems, particularly his depression and his fears, continued.”
This reasoning does not disclose any error on the part of the Arbitrator. She has considered the whole of the evidence, weighed its relative probity and given adequate reasons for her preferred view.
In her consideration of the factors set out in section 9A of the 1987 act the Arbitrator has expressly considered the fact that Mr Atkinson had excessively used alcohol at times prior to the incident at work in October 2003. When weighed with the other factors in section 9A she did not consider that this fact was sufficient to conclude that Mr Atkinson’s work was not a ‘substantial contributing factor’ to his psychological condition. In my view this was a conclusion that was open to the Arbitrator on the evidence that was before her.
Adequate Reasons
Clause 73 of the Rules provides that the Commission’s statement of reasons must include:
“(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made”.
In my view the Arbitrator’s written ‘Statement of Reasons’, dated 13 April 2005 demonstrates a careful and thorough appraisal of the evidence that was before her. She briefly summarised the lay and medical evidence and the parties’ submissions. She correctly identified the issues that were in dispute and plainly expressed her findings. She identified and applied the relevant law. She has clearly met her statutory duty to give reasons.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
26 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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