Oracle Corporation Australia Pty Ltd v Ozcelik - [2012] NSWWCCPD 58

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Oracle Corporation Australia Pty Ltd v Ozcelik [2012] NSWWCCPD 58
APPELLANT:		Oracle Corporation Australia Pty Ltd
RESPONDENT:		Lutfiye Ozcelik
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-8781/11
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:		17 July 2012
DATE OF APPEAL DECISION:		11 October 2012
SUBJECT MATTER OF DECISION:		Psychological injury; weight of evidence; causation; application of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; relevance of failure to issue direction for production on hospital; onus of proof; non compliance with Practice Direction No 6
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 17 July 2012 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

Lutfiye Ozcelik started work for Oracle Corporation Australia Pty Ltd (Oracle) in November 2004 as a projects co-ordinator. In March 2006, she was promoted to the position of contracts manager. Her case was that she suffered a psychological injury because of the “stressful work environment” as the contracts manager between 1 February 2006 and July 2008, which forced her to cease work on 26 April 2008. As she did not return to work after 26 April 2008, the relevant period should properly have ended when she last worked in April 2008, though nothing turns on that.
The job of contracts manager required significant legal knowledge and knowledge of business practices. She said that she was not given adequate training and that, initially, there were insufficient staff to do the work and, as a result, she worked excessive hours. She had an unrealistic workload and frequently worked at night.
In late 2007 or early 2008, three lawyers and a new contracts manager (also a lawyer) were hired to do the work Ms Ozcelik (who is not a lawyer) had performed with two non-qualified staff. Ms Ozcelik trained the new team and arranged for them to receive appropriate equipment. She felt that she had been taken advantage of, unfairly treated, and pushed aside. Without any explanation or consultation, she went from being the contracts manager with responsibilities to not having a role and only doing insignificant and meaningless tasks. She felt demeaned, belittled and humiliated by what happened and she took leave at the end of April 2008 and did not return to work.
Her main medical case came from her treating psychiatrist, Dr Moorthy, who diagnosed her to have a major depressive disorder and generalised anxiety disorder related to her work and from Dr Allnut, a qualified psychiatrist, who expressed a similar conclusion.
Oracle’s managers spoke of Ms Ozcelik in glowing terms, but acknowledged that she probably did not have the right skills for the job. That was why they hired people with a legal background. In the six months prior to Ms Ozcelik stopping work, there was no overtime and no extended workload. Oracle’s case was that its managers had not noticed Ms Ozcelik in any distress between 2006 and April 2008 and that, when she asked for leave in April 2008, she did so because of “personal reasons” and to “manage some issues at home”, not because of work issues.
Oracle’s medical case was from Associate Professor Robertson, a consultant psychiatrist, who concluded that Ms Ozcelik had bipolar disorder, which was constitutional, but may have been exacerbated by her work with Oracle.
Ms Ozcelik made a claim for compensation on 27 November 2008, which the insurer disputed.
On 6 October 2011, Ms Ozcelik filed an Application to Resolve a Dispute (the Application) in the Commission in which she claimed lump sum compensation of $22,000 in respect of a 15 per cent whole person impairment (due to her psychiatric impairment) and $45,000 for pain and suffering. She made no claim for weekly compensation or for hospital and medical expenses.
In a reserved decision, the Arbitrator found the evidence of Dr Moorthy and Ms Ozcelik “compelling”. She said that Ms Ozcelik gave a “detailed and plausible history of the nature and conditions of her employment and her downhill spiral into a severe and disabling psychiatric injury”. The evidence from Dr Moorthy and Dr Allnut was “unequivocal in supporting the claim of injury due to the work environment” and Ms Ozcelik had “clearly established ‘cause’ and ‘effect’ and [had] discharged her onus of proof”.
The Arbitrator found that, due to the nature and conditions of her employment, Ms Ozcelik sustained a psychological injury on 26 April 2008 (the date on which she stopped work), that the injury arose out of or in the course of her employment and that employment was a substantial contributing factor to the injury. She remitted the matter to the Registrar for referral to an Approved Medical Specialist for assessment of Ms Ozcelik’s whole person impairment because of her psychological injury.
Oracle has appealed the Arbitrator’s determination.

ON THE PAPERS

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

ISSUES IN DISPUTE

The appeal has been filed in two parts. The first was the Appeal Against Decision of Arbitrator (the Appeal Application) filed on 14 August 2012. It dealt with several preliminary matters and identified the following issues (called “submissions”), namely whether the Arbitrator erred in:
(a) her application of ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act) (ss 4 and 9A);
(b)     failing to provide “appropriate reasons for the decision” (reasons);
(c)     failing to give “proper weight to the medical opinion of Associate Professor Robertson” (evidence of Associate Professor Robertson);
(d)     failing “to give proper weight or otherwise discounted other relevant factual issues” (weight of evidence), and
(e)     exercising her discretion on the facts in finding that Ms Ozcelik sustained a psychological injury on 26 April 2008 due to the nature and conditions of her employment from 2006, that the injury arose out of or in the course of her employment and that employment was a substantial contributing factor to the injury (exercise of discretion).
In addition, it was submitted that Ms Ozcelik had failed to establish “cause” and “effect” and failed to discharge her onus of proof in respect of ss 4 and 9A of the 1987 Act. As drafted, this was not an allegation of error by the Arbitrator. However, so far as it implies an error by the Arbitrator, it is discussed under the headings listed below.
No submissions were made in support of these allegations.
In a second document, filed on 7 September 2012 and headed “Respondent’s [sic, Appellant’s] Grounds of Appeal”, Oracle’s solicitor, Mr Slocombe, who did not appear at the arbitration, made various submissions as to why Ms Ozcelik should have failed, but made only indirect submissions dealing with the alleged errors identified in the Appeal Application. He set out a selective summary of parts of the evidence and made the broad allegation that Ms Ozcelik failed to prove her case. Such an approach may have been appropriate in a review but is not acceptable in an appeal restricted to the identification and correction of error (s 352(5) of the 1998 Act).
The general approach to the appeal was most unsatisfactory and did not comply with Practice Direction No 6. While the Practice Direction gives appellants the opportunity to file supplementary submissions within 28 days of the date of the letter from the Registrar enclosing a copy of the transcript of the proceedings at the arbitration, it does not give appellants carte blanch to file submissions according to their own timetable. The document filed on 7 September 2012 made only limited references to the transcript and Mr Slocombe offered no explanation as to why the submissions were not filed with the Appeal Application. The references to the transcript were merely references to counsel’s submissions. The submissions on appeal should have referred to the evidence. It was not necessary to have the transcript for that purpose.
Practice Direction No 6 states under “Grounds of Appeal” that the Appeal Application must state briefly, but specifically, the grounds relied on in support of the appeal and that it is not acceptable to allege that the Arbitrator erred in law, fact or discretion. The grounds of appeal must identify the respects in which error is alleged to have occurred.
Under “Submissions” the Practice Direction states, among other things:
“All submissions must deal clearly and succinctly with each ground of appeal and include relevant page references to the evidence and transcript….
It is not acceptable to merely allege that the Arbitrator erred in fact, law or discretion. Submissions must clearly and succinctly identify the alleged error, how that error has affected the outcome, and why the outcome should be different.”
The appellant’s submissions failed to comply with the above directions.
Though no additional grounds of appeal were properly identified, in the body of the submissions filed on 7 September 2012 it was argued that the Arbitrator erred in the following additional respects:
(a)     finding in favour of Ms Ozcelik when she had failed to prove her case (whether Ms Ozcelik had proved her case);
(b)     as clinical notes from Northside West Clinic (where Ms Ozcelik had been treated for her psychiatric condition) should have been obtained by Ms Ozcelik, the Arbitrator reversed the onus of proof when she said that Oracle could have obtained those notes (onus of proof);
(c)     accepting Ms Ozcelik’s medical case when her doctors had no history of the “gambling problem” referred to in the notes from St John of God Hospital (the gambling issue);
(d)     finding that the gambling was a symptom and not a cause of Ms Ozcelik’s medical condition (the gambling issue), and
(e)     the Arbitrator should have placed “little weight” on the medical opinions of Dr Moorthy and Dr Allnut because they failed to analyse “crucial elements” of Ms Ozcelik’s condition (evidence of Dr Moorthy and Dr Allnut).
Notwithstanding the appellant’s unsatisfactory presentation of the appeal, I have considered all of the matters raised in the documents filed in support of the appeal.

SECTIONS 4 AND 9A

Submissions

Other than the broad allegation that the Arbitrator erred in law in her application of these sections, Mr Slocombe has made no submissions in support of this point. As part of his general submissions, not directed to any particular ground of appeal, he said that Ms Ozcelik had “failed to prove that her psychiatric injury (the existence of which is not disputed) arose out of, or in the course of, her employment and that employment was a substantial contributing factor to that injury” (emphasis in original).

Discussion

These submissions failed to properly identify any error by the Arbitrator. They might be appropriate in a hearing de novo, but are not appropriate in an appeal restricted to the identification and correction of error. To the extent that this “ground” overlaps with the other issues identified, it is dealt with below under those issues. On its own, it was meaningless.

REASONS

Submissions

Mr Slocombe’s only submission was that the “Arbitrator failed to provide appropriate reasons for the decision”.

Discussion

While it is accepted that an Arbitrator has an obligation to provide adequate reasons for his or her decision (Precision Valve Australia Pty Ltd v Nanda [2012] NSWWCCPD 48), Mr Slocombe has not identified the respects in which it is alleged the Arbitrator’s reasons were not adequate or, to use his term, “appropriate”.
Though a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential that he or she expose the reasons for resolving a point critical to the contest between the parties (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58] (Pollard)).
Similarly, though a judge does not have to refer to every piece of evidence, he or she must refer to evidence that is important or critical to the proper determination of the matter (Pollard at [62] citing Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Beale)).
The Arbitrator’s decision set out the background to the claim, the issues for determination, a detailed summary of the relevant evidence and reasons for her findings. In the course of reaching her conclusion, the Arbitrator dealt with submissions made by counsel for Oracle.
With respect to Associate Professor Robertson’s evidence, the Arbitrator noted that the only support for his diagnosis of Type II Bipolar Disorder was the notation in the clinical notes from Cumberland Hospital on 28 May 2009. Having regard to the diagnoses in the notes from St John of God Hospital, the Arbitrator did not accept the diagnosis of Type II Bipolar Disorder.
She said that, though Associate Professor Robertson considered the gambling to be a “significant issue in respect of causation” and that the psychiatric injury (condition) was due to a “constitutional condition”, his opinion was “ambivalent in respect of causation” ([27]). This was because he related “employment with the ‘emergence’ and ‘exacerbation’ of the disorder”, which the Arbitrator felt “could be argued” assisted Ms Ozcelik.
The Arbitrator found the evidence from Ms Ozcelik and Dr Moorthy to be “compelling”, noting that Ms Ozcelik gave a “detailed and very plausible history of the nature and conditions of her employment and her downhill spiral into a severe and disabling psychiatric injury” ([30]). She found the reports of Dr Moorthy and Dr Allnut to be “unequivocal in supporting the claim of injury due to the work environment”.
The only possible area for complaint about the adequacy of the Arbitrator’s reasons, which was not argued by Mr Slocombe, is that she did not expressly deal with why employment was a substantial contributing factor to the injury (s 9A). However, when considering adequacy of reasons, an Arbitrator’s reasons must be read as a whole (Beale at 430‑44). When that is done, it is clear that, having rejected Oracle’s argument that the condition was constitutional or was caused by gambling, the Arbitrator accepted work as the cause of Ms Ozcelik’s condition. It follows that her reasons support the s 9A conclusion.
The Arbitrator provided adequate reasons for her decision.

EVIDENCE OF ASSOCIATE PROFESSOR ROBERTSON

Submissions

Mr Slocombe’s only submission on this issue was that the Arbitrator “failed to give proper weight to the medical opinion of Associate Professor Robertson”.

Discussion

I reject this submission.
The Arbitrator considered Associate Professor Robertson’s evidence in detail and, for the reasons discussed above, did not accept it. That conclusion was open to her and discloses no error.

WEIGHT OF EVIDENCE

Submissions

Mr Slocombe said that the Arbitrator “failed to give proper weight or otherwise discounted other relevant factual issues” but made no other submissions in support of this point.

Discussion

This “submission” was of no assistance and has advanced no reasoned argument as to how the Arbitrator erred. To the extent that this issue is covered by the submissions filed on 7 September 2012, it is considered below.

EXERCISE OF DISCRETION

Submissions

Mr Slocombe submitted that the Arbitrator erred in exercising her discretion on the facts in finding that Ms Ozcelik sustained a psychological injury on 26 April 2008 due to the nature and conditions of her employment from 2006, that the injury arose out of or in the course of her employment and that employment was a substantial contributing factor to the injury.

Discussion

This submission fundamentally misunderstands the decision making process involved in the resolution of disputes in the Commission. The Arbitrator’s conclusions on the issues in dispute, namely, whether Ms Ozcelik had received an injury to which her employment was a substantial contributing factor, did not involve the “exercise of a discretion”. The Arbitrator was required to weigh the evidence and the respective arguments, make factual findings, and apply the legislation. If the factual findings supported a particular outcome according to law, that is the outcome that must be reached. That is not a discretionary decision.

WHETHER MS OZCELIK HAD PROVED HER CASE

Submissions

Mr Slocombe’s “primary submission” was that Ms Ozcelik failed to prove her case on the balance of probabilities. Specifically, he said that she had failed to prove that her psychiatric injury arose out of, or in the course of, her employment and that employment was a substantial contributing factor to that injury. Ms Ozcelik “failed to adduce sufficient and consistent medical evidence to discharge the burden of proof on her” and, “for those reasons, it is submitted that the [sic] Arbitrator Robinson fell in to error” and her decision should be overturned.
Mr Slocombe then referred to Dr Moorthy’s evidence that Ms Ozcelik suffered from a major depressive disorder with psychotic depression and that the injury was caused as a result of continual excessive work pressures with little reward or acknowledgment. The doctor added that there were no personal issues contributing to or exacerbating her injuries and that the injury commenced in 2005.
It was submitted that Dr Allnut diagnosed Ms Ozcelik to have a major depressive disorder of a chronic nature and that her injury was caused primarily as a result of an incident in 2008 when her team was replaced by qualified people, with Ms Ozcelik losing some responsibilities without explanation. This caused a loss of self-esteem, angst and depression. Ms Ozcelik denied to Dr Allnut that she had any prior depression or treatment for psychiatric illness. He said that the injury commenced in 2008 with a deterioration in her mood.
Associate Professor Robertson diagnosed Ms Ozcelik to have a Type II Bipolar Disorder but he was of the opinion “that her injury is a constitutional disorder”.
The notes from Cumberland Hospital described an admission on 28 May 2009 and “identified the following diagnosis made by that hospital”:
“36 year old, past history of bipolar disorder presenting with a relapse with combined depressive (affective) & psychotic symptoms.”
Evidence also emerged that Ms Ozcelik “suffered from a gambling addiction”. The notes from St John of God Hospital dated 7 July 2009 recorded:
“Gambling for 1.5 years. Lost $5,000.00 over that time.”
The notes for 9 July 2009 recorded “Pathological gambling”.
Under “An Analysis of the Evidence”, Mr Slocombe submitted that it was not in contention that Ms Ozcelik “currently suffers from a psychiatric injury”, however, Ms Ozcelik’s evidence failed to prove the following crucial elements of that injury on the balance of probabilities:
“(a) The precise mechanism of the injury, including:
(i)the cause/s of the injury; and
(ii)the date on which the injury began.”

This was because Ms Ozcelik’s medical experts failed to appreciate Ms Ozcelik’s unrelated mental health problems and failed to take into account and analyse her gambling addiction.
Mr Slocombe referred to Smith v Parkes Shire Council [2010] NSWWCCPD 130 (confirmed by the Court of Appeal: StateCover Mutual Ltd v Smith [2012] NSWCA 27) (Smith), where I said that evidence in a medical history is evidence of the fact (Guthrie v Spence [2009] NSWCA 369 at [75]), and submitted that the evidence from Cumberland Hospital that Ms Ozcelik had a past history of bipolar disorder was evidence of the fact that Ms Ozcelik suffered from a psychiatric illness prior to 2009.
As Ms Ozcelik’s doctors had not been provided with a copy of the Cumberland Hospital notes, or the notes from Northside West Clinic (where Ms Ozcelik had been admitted in November 2008), they “were unable to give a fully informed medical opinion”.

Discussion

The essential complaint is that the Arbitrator erred in accepting Ms Ozcelik’s case when she (Ms Ozcelik) “failed to adduce sufficient and consistent medical evidence to discharge the burden of proof”.
This submission was without merit. Before dealing with it, it is necessary to consider the evidence in more detail.
The Arbitrator referred to Ms Ozcelik’s evidence in detail in a manner that has not been challenged on appeal. In summary, that evidence was that the role of contracts manager, which Ms Ozcelik took over in March 2006, required significant legal knowledge and business practices training. That training never took place. Instead, she received a few hours of casual training for the first three days and was subsequently left to her own devices to try to work out how to process contracts. During 2006 and 2007, there were insufficient employees to do the work and Ms Ozcelik worked excessive hours because of the high workload. She worked under pressure with strict deadlines. It was very tiring and frustrating. She told Oracle of these problems but by 2008 she had trained herself and become very experienced.
Ms Ozcelik became aware (presumably in 2008) that the reporting lines and dynamics of the team were changing and she was told that Oracle would hire a senior contracts manager and legal staff. Though she asked on numerous occasions for details of her role, the response was vague and “along the lines of ‘you will be doing something different’”, which “worried [her] greatly”.
Ms Ozcelik began reporting to a senior manager, Manoj Narsey. Three lawyers and one contractor were hired and Ms Ozcelik was instructed to provide training and assistance. She trained the new staff on internal processes, system and business practices, and acquired and set up new equipment for them. Industry training was also provided to the new staff members.
Because management had insinuated that the area needed lawyers, Ms Ozcelik felt inferior. She felt that, because she was not a lawyer, she was not good enough for her role. Though she thought it was a good idea to have more qualified people in the area, it did not mean that she could not perform her role.
Ms Ozcelik felt she was taken advantage of and unfairly treated. She was pushed aside and felt she was being judged by her new colleagues, and the business, to be no longer capable of carrying out her role. Once she trained the new contracts manager and team, she basically had no role. She went to work but was not really certain of what her role was or what she was doing.
When Ms Ozcelik tried to follow up on what her role was, she was ignored. She felt demeaned, belittled and humiliated. She had gone from being the contracts manager with a lot of responsibility to not having a role. She was given insignificant and meaningless tasks, though there was no formal correspondence about the change in her role and no formal discussion about it. As there were no grounds to formally ask her to leave, she felt like she was being squeezed out. Though she updated her CV, she was afraid to apply for internal or external jobs as she had lost all confidence.
Ms Ozcelik said the finance director gave her two weeks’ leave due to work stresses from 16 June 2008 until 27 June 2008 (the documents suggest that Ms Ozcelik in fact stopped work on 26 April 2008). In any event, she was unable to return to work because she was “so devastated, depressed and anxious”. She had no confidence and did not want to leave the house.
On 13 November 2008, Ms Ozcelik wrote to Oracle by email about her condition. She said in it that she was unable to go through WorkCover “at this point” because she was not well enough to cope with the process and was on medication. Oracle responded with an email that made Ms Ozcelik feel belittled and caused her to have her first thoughts of suicide. From this point on she had no one at work to whom she could talk or get any type of support. She said her situation was caused by stress, ill treatment, and unrealistic work expectations and deadlines. She was then made to feel insignificant and her role was taken away from her without any formal discussion, which made her feel humiliated and confused.
Dr Moorthy reported to the Group Claims Assessor, ING Australia Ltd, on 8 January 2009 (ING). He said that Ms Ozcelik had been referred to him by her general practitioner on 8 August 2008 for counselling and support for her anxiety and depression. When assessed on 19 August 2008, she showed signs of significant depression. She said that she “had probably suffered from depression for 3 years” and that her family had recognised her depression and expressed concern about her health. She added that she “refused to believe what they said. I wanted to be strong. I wanted to look after myself”.
She continued to Dr Moorthy:
“I worked hard for 4 years. I worked up to midnight. I worked too hard for too long. New people came. I trained them. They left. I had to continue to work long hours.
I had to develop legal skills. They hired 5 lawyers and a manager to work with me. I could not cope. My head became too tight. I was not paid enough. I tried to make up. I did not show my problems to anyone.
I became frequently sick with bronchitis. I became anxious. My heart went fast and I could feel the heart pumping. I had blackouts. I was shaky. I had breathing difficulties. I did not feel well.
I had enough. I worked hard but was not rewarded. I expected more pay. My husband told me to talk to somebody about my problems. I got angry with him. I told him that I am my own doctor.”
Her problems continued and she sought help from her doctor. She took a month off work and reported that she was getting sicker by the day. Dr Moorthy said:
“Under these circumstances of deteriorating health secondary to long standing work pressures she was referred for psychiatric assessment.”
He added that Ms Ozcelik:
“took extreme precautions to present herself well at work which took her a long time to get ready. She reported that she learned to hide her symptoms and present a happy picture which did not show the truth to her colleagues.
She said she was ashamed to admit her sufferings and managed as long as she could until the symptoms took the better of her.
The symptoms are consistent and serious. She was hospitalised at Northside West Clinic before Christmas 2008 as she became severely depressed and suicidal. Her symptoms were made worse by the Human Resources Department falsely telling her that the issues were personal and not related to work.”
Under “Restrictions”, Dr Moorthy listed 22 reasons why Ms Ozcelik was “totally unable to function at work”. In addition to the health issues of depression, anxiety and panic disorder, the majority of the other reasons listed relate to her work environment with Oracle. She denied any personal issues being to blame, though acknowledged that that was the view expressed by Oracle.
Ms Ozcelik had been hospitalised at the Northside West Clinic where she was monitored in view of her potential self-harm. Dr Moorthy diagnosed psychotic depression, and generalised anxiety and panic disorder.
Under “Opinion”, Dr Moorthy said that Ms Ozcelik was unfit for her pre-injury duties. He was not able to identify any other contributing or perpetuating factors like family, relationship, medical, substance abuse, personality issues or financial problems.
Dr Moorthy reported to Oracle’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz), on 9 April 2009. In answer to specific questions from Allianz, he said:
“• [Ms Ozcelik] suffers from a psychological injury sustained as a result of long term work place difficulties. Hence it could be considered as an occupational injury.
· Diagnosis:
Major Depression Disorder – psychotic depression
Generalised anxiety disorder
Panic disorder”
Under “Mechanism”, Dr Moorthy recorded a history that Ms Ozcelik performed well at work and worked long hours without being properly remunerated. This was not a significant issue until she found her diligence, hard work, loyalty and sincerity to the company went unrewarded. The psychological stresses resulting from that had accumulated slowly to the point of her suffering the above ailments. She was stoic and reluctant to acknowledge that she would suffer a psychological injury in any form or manner.
He added that there were no personal issues contributing to or exacerbating her psychological injuries.
Under “Date of Injury”, Dr Moorthy said that he believed Ms Ozcelik’s “psychological problems commenced in 2005”. He did not know if Dr Obeyesekera (Ms Ozcelik’s general practitioner) had issued a WorkCover medical certificate. He believed “this to be a Workers Compensation Claim”.
Dr Allnut reported to Ms Ozcelik’s solicitors on 16 May 2011. Under “Account of the Index Incident”, Dr Allnut said that the “index incident occurred around 2008”. He then recounted a summary of Ms Ozcelik’s statement and that she felt humiliated by what had happened. He added that, up to this time (presumably 2008), she had had no prior contact with a mental health worker or prior psychiatric medication. In his opinion, Ms Ozcelik manifested symptoms consistent with a major depressive disorder of a chronic nature characterised by a long term of probably fluctuating symptoms of depression including a depressed mood, impaired sleep, reduced appetite, changes in appetite, reduced energy, impaired motivation, poor concentration, reduced self esteem and feelings of shame, loss of interest in activities, social withdrawal, anhedonia and intermittent suicidal ideation. In addition, she described episodes of panic that could last a few minutes or more, which did not seem to be triggered by any specific situation.
Dr Allnut also noted that Ms Ozcelik came from a loving and supportive familial environment. She was not exposed to domestic violence, sexual abuse or physical abuse. Until she became depressed she had been capable of gainful employment and prided herself on her strong work ethic and commitment to the workplace. She has been capable of stable and committed interpersonal relationships and remains in one. There was no evidence of significant developmental problems and she would not be regarded as suffering from a personality disorder. She did not report any major medical problems.
On the question of whether there had been an aggravation or deterioration of any existing injury, Dr Allnut said that Ms Ozcelik described a high level of stress within the workplace and denied any external personal stressors at the material time, but did note a gradual deterioration in her mood occurring in 2008 in the context of work stressors, with the emergence of depressive symptoms. She denied any prior contact with mental health workers, any prior prescription of psychiatric medication or prior depression preceding the onset of the current depressive disorder. Thus, there had not been an aggravation, exacerbation or deterioration of any existing injury.
In answer to the question of whether, on the balance of probabilities, the injury, condition or ailment was caused by “the subject accident”, Dr Allnut said that, if it was accepted that Ms Ozcelik was exposed to significant stress at work, it would be a reasonable conclusion that the injury, condition or ailment “or [sic, was] caused by the subject accident”.
Also in evidence, though not referred to by Mr Slocombe in his submissions, is a report from Dr Obeyesekera to ING dated 11 December 2008 in which he responded to a series of questions, which are not in evidence. He said that Ms Ozcelik was suffering from “severe depression” and, though she was on multiple antidepressants, she was not improving. Answer number 9.3 is “None other than work related stress”. I infer that the question asked the doctor about the cause or causes of Ms Ozcelik’s condition.
Oracle relied on the evidence of Associate Professor Robertson, consultant psychiatrist. In his report of 14 July 2010, Associate Professor Robertson took a history that Ms Ozcelik developed depression in mid-2008. She described that she was a hard working dedicated employee, who often stayed late and took work home. In the context of the restructure of the company, she found herself underutilised and became “really upset”. She developed a depressive illness characterised by a loss of interest in her otherwise enjoyable activities, low self esteem, impairment of concentration and memory, and significantly depressed mood that was worse in the morning. She was admitted to hospital with what sounded like a hypomanic episode, characterised by over activity, racing thoughts, persecutory ideation and a decreased need for sleep.
Associate Professor Robertson recorded that Ms Ozcelik had no psychiatric history prior to 2008. She came to Australia when aged two. She described having had a good adjustment with her family to life in Australia. She was a popular child, with no emotional problems. Her parents’ marriage was unhappy and ended in 1992. She completed her Higher School Certificate, obtained a degree in Computer Science, and subsequently obtained qualifications in marketing and economics. She worked with Telstra and Qantas in computer science before working with Oracle. She denied any “intercurrent stressors and reported good postnatal adjustment”.
On examination, he found Ms Ozcelik’s affect to be flat and her mood depressed. There were no psychotic symptoms and no evidence of mood instability. Though he did not formally assess her concentration she had some difficulty sequencing her history.
Under “Diagnosis and Opinion”, he wrote:
“Based on my assessment today, it is my opinion that Ms Ozcelik is suffering from Type II Bipolar Disorder. She has had recurrent episodes of severe depression and has had at least one hypomanic episode. As such, she is suffering from a constitutional condition which likely emerged in the context of restructuring of her employment. It is not entirely clear whether the bipolar disorder would have had its onset at the same time were it not for work factors. However, Ms Ozcelik is not tolerating a restructure of employment, in the absence of any specific harassment or other unreasonable actions by the employer. This does indicate that her current psychiatric illness is a constitutional, rather than work-related condition.”
In answer to the question of whether Ms Ozcelik’s current presentation was a direct result of a workplace incident, Associate Professor Robertson said that it was the emergence of a constitutional condition and not the direct result of a workplace incident.
Associate Professor Robertson re-examined Ms Ozcelik on 5 October 2011 and reported on 10 October 2011. Ms Ozcelik had ceased all her psychotropic medication apart from, as required, benzodiazepines and her mental state had deteriorated. She presented as significantly depressed. Since his assessment in July 2010, she had not had any hypomanic or mixed affective episodes and there had been no mood instability, but rather persisting depression.
Associate Professor Robertson confirmed the opinion he expressed in his first report that Ms Ozcelik was suffering from Type II Bipolar Disorder “but now presents with a severe depressive pole of the illness, which has emerged since her defaulting on treatment”. She was being “suboptimally treated”.
In answer to the question of whether Ms Ozcelik’s employment had been a substantial contributing factor to the injury, Associate Professor Robertson said her condition was constitutional, but added:
“In the course of her employment, she has experienced an exacerbation of this constitutional condition.”
Given the above evidence, Mr Slocombe’s submission that Ms Ozcelik “failed to adduce sufficient and consistent medical evidence to discharge the burden of proof” is unsustainable.
The “mechanism of the injury”, which I equate to “cause of injury”, is found in the circumstances of Ms Ozcelik’s employment between March 2006 and 2008, which must be considered in two distinct periods. First, the period from 2006 when she worked long hours with limited resources until several lawyers were hired to do the job she had performed with fewer staff. The second was after the lawyers were hired. After training the new staff, Ms Ozcelik felt she was being squeezed out and that made her feel demeaned, belittled and humiliated, though she did not show her problems to anyone.
Each period caused Ms Ozcelik distress, but for different (though interrelated) reasons. The first period caused stress because of the demands of the job, lack of support and lack of training. The second period caused stress because, given the effort Ms Ozcelik had put into the job, when the new staff were hired, she felt she was ignored. This made her feel demeaned, belittled and humiliated.
It follows that the “mechanism of injury” (cause of injury) was clearly identified.
The submission that Ms Ozcelik failed to prove “the date on which the injury began” is not a submission that was made at the arbitration. In any event, it has no merit. As Ms Ozcelik’s psychological injury is a disease, the injury is deemed to have happened at the time of incapacity or, if no incapacity has resulted from the injury, at the time she claimed compensation. After considerable discussion, and without objection by counsel for Oracle, Ms Ozcelik’s counsel amended the date of injury to be 26 April 2008 (T22.23), which was the date when Ms Ozcelik stopped work and the date on which her incapacity commenced. That is the date of injury. The alternative date of injury is the date on which she claimed lump sum compensation, but neither side has addressed on that date.
Moreover, in a case where it is alleged that the injury occurred because of events over a period, it is usually impossible to prove that the injury occurred on a specific date. On Ms Ozcelik’s evidence, which the Arbitrator accepted, difficulties began at work in March 2006 when she became the contracts manager. It follows that Dr Moorthy’s statement that the injury commenced in 2005 was incorrect.
Dr Moorthy’s error was probably based on the history he took in August 2008 that Ms Ozcelik had suffered from depression for three years, which put the start of her problems in 2005. However, his error is of no consequence. His opinion on causation was clearly stated in his 9 April 2009 report to Allianz when he said that Ms Ozcelik “suffers from a psychological injury sustained as a result of long term work place difficulties”. Whether the workplace difficulties started in 2005 or in 2006 is irrelevant to the overall assessment of causation. That is especially so in circumstances where there are no events, work related or otherwise, that occurred in 2005 that caused Ms Ozcelik any stress.
With regard to Dr Allnut’s evidence, the submission that he said the injury commenced in 2008 is based on his statement that the “index event occurred around 2008”. However, Dr Allnut went on to explain the two distinct periods that I summarised at [89] and [90] above. In the first period, Ms Ozcelik spent about two years doing stressful work as a contracts manager. She worked under pressure, for long hours and without training. In the second period, her responsibilities were taken from her without explanation, which had a significant effect on her confidence and self-esteem. She felt humiliated. Clearly, both periods affected Ms Ozcelik and contributed to her injury.

Dr Allnut referred to Ms Ozcelik having experienced a “gradual deterioration in her mood in 2008 in the context of work stressors, with the emergence of depressive symptoms”. Contrary to Mr Slocombe’s submission, this did not mean that the injury commenced in 2008. The injury had its genesis in the events that occurred from March 2006 until Ms Ozcelik ceased work, or until she ceased to be employed by Oracle.
It follows that the submission that Ms Ozcelik failed to prove the mechanism of injury or the date on which it began is untenable and I reject it.
The next submission under this heading was that the note recorded by Cumberland Hospital, that Ms Ozcelik had a history of bipolar disorder, was evidence that she suffered from a psychiatric illness prior to 2009 and that, as her doctors had not been provided with those notes, or the notes from Northside West Clinic, “they were unable to give a fully informed medical opinion”. Mr Slocombe referred to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) and said that he acknowledged that the analysis of the admissibility of expert evidence in that case was “not strictly applicable in the Workers Compensation Commission”.
I accept that evidence in a medical history is evidence of the fact. However, it is not determinative evidence and it must be considered with all the other evidence. Moreover, it does not follow that, because Ms Ozcelik’s doctors did not have the history recorded in the Cumberland Hospital notes, they “were unable to give a fully informed medical opinion”.
The Court of Appeal considered the application of Makita in the Commission in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399. Beazley JA (Giles and Tobias JJA agreeing) said (at [82]) there could 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. However, 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”.
Her Honour referred (at [78]) to the following statement by Spigelman CJ in Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [105] as “clearly correct”. The Chief Justice said:
“Although expressed in terms of ‘usefulness’, the starting point for Heydon JA’s detailed analysis of the case law on admissibility does not suggest any focus on the true historical process by which the expert first formed the relevant opinion. The focus of attention – the ‘prime duty’ – is to ensure that the court, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That can occur without adopting the true factual basis approach. What Heydon JA identified as the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.” (emphasis added by Beazley JA)
Her Honour added (at [83]) that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]).
The principles in Makita were also explained in Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 179 FLR 1, where Giles JA (Mason P and Beazley JA agreeing) held (at [631]):
“And, as was said in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157, absolute certainty that the opinion is based on the specialised knowledge is not required (at [14]) and many of the stated qualities of the opinion evidence by Heydon JA ‘involve questions of degree, requiring the exercise of judgment’ (at [87]).”
The Arbitrator referred to the Cumberland Hospital notes (at [11]) and to Oracle’s submission that the notes supported Associate Professor Robertson’s diagnosis ([23]). At [28], she said that she rejected that diagnosis because the only support for it was in a notation on admission to Cumberland Hospital on 28 May 2009. This finding was open and renders the history of past bipolar disorder of limited relevance to the current claim.
That is especially so in circumstances where the reference to “past history of bipolar disorder” was not explained or expanded in the evidence, and where Ms Ozcelik was well when she started work for Oracle in 2004. It is not known when it occurred or in what circumstances. The context in which the hospital note was made is also relevant. Under “Reason for Referral/Admission” the following was recorded on 11 June 2009:
“36 y/o married woman presents with depressive symptoms, suicidal ideation & psychotic symptoms.
Feels she has been under significant stress, particularly from work.” (emphasis added)
The above entry supports a connection between Ms Ozcelik’s symptoms on admission and her employment with Oracle. Having regard to the whole of the evidence, and the fact that the Arbitrator did not accept the diagnosis of bipolar disorder, the histories recorded by Dr Moorthy and Dr Allnut provided a fair climate for the acceptance of their opinions (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510 (Paric)) and it was open to the Arbitrator to accept their evidence. In accepting their evidence, “cause” and “effect” was clearly established.
In rejecting Associate Professor Robertson’s diagnosis of bipolar disorder, the Arbitrator also referred to the St John of God Hospital notes, which diagnosed major depression with psychotic features (and included several references to problems at work with Oracle), but made no mention of bipolar disorder. This evidence provided further support for Arbitrator’s conclusion.

ONUS OF PROOF

Submissions

Mr Slocombe said that the notes from Northside West Clinic “were available and should have been obtained by subpoena [sic] by [Ms Ozcelik] yet [Ms Ozcelik] failed to present them to the court [sic]”. When this was brought to the Arbitrator’s attention, her answer was that Oracle could have obtained the notes and supplied them. He added, “the onus was clearly not on [Oracle] and that [Ms Ozcelik] required those notes to discharge her onus of proof of the injury as the Arbitrator’s comments amount to a reversal of that onus”.

Discussion

Dealing with the submission that the clinical notes from Northside West Clinic should have been available to assist in the resolution of the dispute, the Arbitrator said (at [24(e)]) that either party could have requested an order for the issue of a direction (for production) and the submission had “no real value”. This statement was correct and involves no error.
More importantly, Ms Ozcelik’s case did not hinge on the notes from Northside West Clinic and she had no obligation to obtain them. Her history of work stress was recorded in the reports of Dr Moorthy, her treating psychiatrist, and Dr Allnut, her qualified psychiatrist. As explained above, their opinions provided a sound basis for the Arbitrator’s conclusion.
An essential pre-requisite to drawing any adverse Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference is that the party against whom the inference is to be drawn must be expected to call the evidence in question (Manly Council v Byrne [2004] NSWCA 123 at [54] and Payne v Parker [1976] 1 NSWLR 191 at 201). The notes from Northside West Clinic were not documents that one would have expected Ms Ozcelik to have obtained and were not essential to her case. They may have advanced her case, advanced Oracle’s case, or been neutral. Where the notes were not essential for Ms Ozcelik to prove her case, and it was open to either side to have issued a direction for production on the hospital, the fact that neither side did was neutral and the Arbitrator’s comment did not reverse the onus of proof.

THE GAMBLING ISSUE

Submissions

Mr Slocombe submitted that the notes from St John of God Hospital recorded in July 2009 that Ms Ozcelik’s gambling problem had existed for one and a half years, “making it relevant to the end of 2007/early 2008”. The medical reports contain no analysis of this “relevantly serious issue in [Ms Ozcelik’s] personal life”. For this reason, the doctors’ opinions were “incomplete and faulty”.
Ms Ozcelik’s evidence that the gambling arose as a consequence of her mental health, and was a means of escaping it, was not supported by the medical evidence and was merely her opinion. The evidence shows that the addiction precedes Dr Allnut’s diagnosis of the injury and creates a serious doubt “on whether it was a cause of [Ms Ozcelik’s] injury”.
The “evidence of the gambling problem ought to have been influential and should have weighed heavily on the mind of the Arbitrator”. The Arbitrator erred in finding that the gambling was a symptom and not a cause of Ms Ozcelik’s medical condition.

Discussion

The Arbitrator noted the references to gambling in the notes from St John of God Hospital and said (at [24(d)]) that Ms Ozcelik’s statement disclosed the “problem gambling” and, on any reading of the documents, it was clear the gambling was a symptom, not a cause, of her medical conditions.
The first page of the notes from St John of God Hospital recorded under “Principal Diagnosis” “? Major dep [with] psychotic features”. Under “Other Conditions Present” the word “gambling” is recorded. Dr Obeyesekera had referred Ms Ozcelik to the hospital due to persistent low mood/depression and inability to care for herself and her son. She presented as “very distressed with depression [sic] affect”.
The notes include a history on 7 July 2009 that Ms Ozcelik had been well until two years ago and was “significantly overworked - hard time in work for 2 years”. She worked more than 45 hours per week and had been requested to do a job (legal work) she was not trained to do. She was not appreciated at work. This history was perfectly consistent with Ms Ozcelik’s case.
The notes later referred to “gambling for 1.5 years – lost $5,000 over that period”. After recording that Ms Ozcelik had “plenty” of friends, but had only told one of them about her problems, it was recorded that she had a supportive family.
The notes on 9 July 2009 recorded, among other things, that Ms Ozcelik started to experience anxiety and depression two years ago “in context of ↑ stress & pressure at work”. At the end of that entry, the diagnosis is:
“? Major Depression with psychotic
features
Pathological gambling”

The notes recorded on 12 July 2009 that Ms Ozcelik spoke at some length about stressors at work that she felt led to her depression.
The parties have not referred to any other references to gambling in these notes or in any other notes. Significantly, there is no reference in the notes to Ms Ozcelik’s condition having been caused by gambling. On the time scale recorded in the notes, the depression occurred two years before July 2009 and the gambling 18 months before that date. This suggests that the gambling came after the depression and lends support to Ms Ozcelik’s evidence, which the Arbitrator accepted.
Ms Ozcelik said that she was gambling a lot with her husband’s income and that it took her to “a world where I could stop thinking about anything for that short period of time, however it caused stress and still does”. This evidence strongly suggests, as the Arbitrator found, that the gambling was something Ms Ozcelik did because of the stress from work, and that it was not a separate and independent condition. Given the several references to work in the hospital notes, and the passing reference to gambling, without any clear statement that the gambling had caused the psychological condition, the Arbitrator’s conclusion was open to her and discloses no error.
The submission that “evidence of the gambling problem ought to have been influential and should have weighed heavily on the mind of the Arbitrator” was meaningless and did not advance the issue. Mr Slocombe referred to no evidence in support of this submission and failed to explain how the Arbitrator erred in reaching her conclusion. The Arbitrator considered the issue and referred to the relevant evidence touching on it.
It is correct that, apart from the references to gambling in the hospital notes, the doctors did not deal with it. However, in the absence of any clear evidence that gambling had caused Ms Ozcelik’s problem, that was not critical. The histories recorded by Dr Moorthy and Dr Allnut, taken with the other evidence in the case, provided a fair climate for the acceptance of their opinions (Paric). Their evidence was not “incomplete and faulty”.
The submission that the Arbitrator erred in finding that the gambling was a symptom, and not a cause, of Ms Ozcelik’s condition was not supported with any reasoned argument or reference to the evidence and I reject it. Having regard to the chronology, the references to work in the hospital notes, and to Ms Ozcelik’s evidence, it was open to the Arbitrator to reach the conclusion she did.
An additional issue requires comment, though neither party has addressed on it. The Arbitrator said (at [25]) that Oracle submitted Associate Professor Robertson considered gambling to be a significant issue in respect of causation. Oracle’s counsel made no such submission. He correctly observed (at T10.6) that the history of gambling had not been “touched by any doctor”. However, as this error has not affected the outcome, it is of no consequence.

EVIDENCE OF DR MOORTHY AND DR ALLNUT

Submissions

Mr Slocombe submitted that Ms Ozcelik’s medical evidence was “flawed”, especially where it concluded that there were no personal issues contributing to or exacerbating Ms Ozcelik’s injuries and that there was no prior depression or treatment for psychiatric illnesses.
He referred to McColl JA’s decision in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds) where her Honour referred (at [131]) to “the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value”.
He also referred to a passage in Conargo Shire Council v Quor [2007] NSWWCCPD 245 at [77] (Quor) where I said it would be incongruous if an Arbitrator could use his or her expertise to conclude that a worker had sustained an injury in the absence of expert evidence, in circumstances where it would have been impermissible for an expert witness to support such a claim with a bare ipse dixit.
He then referred to Smith, where it was said that the Arbitrator should have considered the lack of evidence from a lay witness in weighing whether the injury occurred in the circumstances alleged by the worker (Jones v Dunkel). That was because the absence of evidence is “part of the rational weighing of evidence” (Galea v Bagtrans Pty Ltd [2010] NSWCA 350 at [2]).
Based on “that law”, Mr Slocombe submitted that the Arbitrator should have placed little weight on the opinions of Dr Moorthy and Dr Allnut “for the reason that they failed to analyse crucial elements of [Ms Ozcelik’s] condition”. In any case, the opinions varied significantly as to the cause of the injury. Dr Moorthy suggested it was an excess of work (which began in 2005) while Dr Allnut said it was the lack of work once Ms Ozcelik’s responsibilities were reduced in 2008.
Despite Oracle’s submissions highlighting these “evidential problems, the Arbitrator failed to appreciate the significance and should not have found that” Ms Ozcelik had proved her case.

Discussion

These issues have largely been dealt with already. For the sake of completeness, I make the following additional observations.
I assume that Mr Slocombe’s reference to “personal issues” was a reference to gambling and I have dealt with that issue. There are no other personal issues relevant to the claim. Indeed, the hospital notes tendered made no reference to such issues but expressly noted, as had Dr Allnut, that Ms Ozcelik had a supportive family.
The passage relied by Mr Slocombe from Quor has no relevance to Ms Ozcelik’s case and has been taken completely out of context in a most misleading way. The issue in that case was whether the worker had suffered a further or additional injury after the pleaded injury. After quoting the passage that Mr Slocombe has referred to (see [128] above), but before the next passage he relied on (see [129] above), I said “[i]n the present matter, there is no medical evidence to support the proposition that Mr Quor sustained an injury on either 29 or 31 March 2004” (emphasis added).
The issue in Ms Ozcelik’s case is nothing like the issue in Quor. Her case is strongly supported by both her treating specialist and by her qualified specialist. Indeed, she also gains some support from Associate Professor Robertson in that he conceded she suffered an exacerbation of her condition in the course of her employment with Oracle.
In Smith, the worker gave evidence that he reported his injury to a Mr Sutton, a supervisor employed by the respondent, and lodged a notification of injury form with him. Though the employer disputed injury, it called no evidence from Mr Sutton, a witness it would have been expected to call, and did not explain why it did not call him. In those circumstances, the Arbitrator erred in not taking into account the fact that the employer called no evidence from Mr Sutton in her assessment of whether the worker received an injury.
The evidence that is alleged to be missing in the present matter is the evidence from Northside West Clinic. As explained earlier, as the notes were not essential to her case, there was no expectation that she would obtain them and there is no Jones v Dunkel inference against her for not having done so. I have already dealt with the alleged deficiencies in the evidence from Dr Moorthy and Dr Allnut.
It follows that I reject the submission that the Arbitrator failed to appreciate the significance of the alleged “evidential problems”. The Arbitrator dealt with the issues argued before her. Her finding that the gambling problem was a symptom and not a cause was open to her, as was her finding that Ms Ozcelik was not suffering from bipolar disorder. In these circumstances, it was open to the Arbitrator to accept the evidence of Dr Moorthy and Dr Allnut.

CONCLUSION

This appeal was completely without merit. The Appeal Application did not include any submissions and failed to comply with Practice Direction No 6. The “submissions” ultimately filed did not address the “issues” originally identified, but raised new issues that were smothered in the body of the general submissions. The submissions quoted cases out of context and failed to refer to relevant authorities. In general, conduct of the appeal demonstrated a fundamental lack of understanding of the appeal process and basic legal principles.

DECISION

The Arbitrator’s determination of 17 July 2012 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
11 October 2012

I, TAMI O’CARROLL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE