Palasty v Lendlease Building Pty Limited
[2021] NSWPICPD 19
•7 July 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| Status: Notice of Appeal to the Court of Appeal filed 3 August 2021 | |
| CITATION: | Palasty v Lendlease Building Pty Limited [2021] NSWPICPD 19 |
| APPELLANT: | Adam Palasty |
| RESPONDENT: | Lendlease Building Pty Limited |
| INSURER: | icare Workers Insurance |
| FILE NUMBER: | A1-5404/20 |
| MEMBER: | Ms R Homan |
| DATE OF MEMBER’S DECISION: | 24 December 2020 |
| DATE OF APPEAL DECISION: | 7 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – appellant’s failure to prove employment was main contributing factor; no challenge made to Arbitrator’s factual findings; requirement for appellant to demonstrate error of fact and law or discretion per Raulston v Toll Pty Limited [2011] NSWWCCPD 25; 10 DDRCR 156; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95; application of State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 and Attorney General’s Department v K [2010] NSWWCCPD 76; application of Federal Broom Co Pty Limited v Semlitch [1964] HCA 34; 110 CLR 626 on the question of causation |
| PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr C Tanner, counsel | |
| Turner Freeman Lawyers | |
| Respondent: | |
| Mr L Robison | |
| BBW Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Award is confirmed. |
INTRODUCTION
The appellant, Adam Palasty, was employed as a Commercial Legal Graduate by the respondent, Lendlease Building Pty Limited. He commenced proceedings in the then Workers Compensation Commission for compensation as a result of psychological injury.
He commenced employment with the respondent on 3 February 2020 and resigned from his employment on 23 April 2020. He alleged that in the course of his employment he was bullied, harassed, overworked and subjected to unfair workplace expectations.
Mr Palasty had a history of psychiatric ill health including drug induced psychosis, and schizophrenia. His regular treating psychiatrist was Dr Warwick Williams. It was the appellant’s case that at the time of commencing employment with the respondent his pre-existing psychiatric condition was well managed.
The issues for determination by the Arbitrator were as follows:
(a) whether the (appellant) sustained a psychological injury as claimed pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act), including whether the employment was the main contributing factor to the injury;
(b) the extent and quantification of any incapacity resulting from the injury, and
(c) the entitlement to s 60 expenses.
On 24 December 2020 the Arbitrator determined the first issue adversely to the appellant and entered an award for the respondent.
ARBITRATOR’S STATEMENT OF REASONS (REASONS)
In the Application to Resolve a Dispute (ARD) the appellant claimed weekly benefits from 23 April 2020 alleging that he had suffered a disease in the following circumstances:
“Ongoing bullying harassment, over work and unfair workplace expectations. The applicant was exposed to ongoing overwork, bullying, harassment, increased workload and unrealistic work expectations which led to aggravation, acceleration and exacerbation of his pre-existing schizophrenia.”
The Arbitrator noted that the appellant’s case relied on the definition of injury in s 4(b)(ii) of the 1987 Act and that the allegation and key question was whether the employment with the respondent was the main contributing factor.[1]
[1] Reasons, [172]–[174].
The Arbitrator summarised the specific allegations concerning the “employment” made by the appellant at paragraph [182] of the Reasons:
“In the ARD, the [appellant] has described an injury occurring due to ongoing bullying, harassment, overwork and unfair and unrealistic work expectations. In his written statements the [appellant] has described:
· a lack of training and induction particularly regarding the Metro Martin Place project;
· being thrown into the deep end and not been provided with appropriate support to assist in learning or being introduced to the team;
· being unable to complete relevant online training modules;
· not being provided with assistance despite making attempts to reach out for assistance;
· being told repeatedly by his boss that he was ‘going to make a man out of me’;
· having complaints dismissed by the employer;
· Mr Whealey being unapproachable, aggressive and unwilling to assist or train him;
· having difficulty establishing who would be the point of appropriate authority to address regarding complaints or questions;
· lack of supervision from Mr Whealey and Mr Butler;
· having a lot of pressure placed upon him;
· his performance never being an issue; and
· often being called by his supervisors and abused over the telephone.”
The Arbitrator addressed the events and circumstances alleged to determine whether they had occurred and were “real events” in the sense that that expression is used in the context of psychiatric claims which depend on the claimant’s perception of events and circumstances occurring (or not occurring) in the course of employment.[2]
[2] See State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler).
The Arbitrator considered the evidence advanced by the parties. On the critical question of the conflict in the evidence between the appellant’s written statements and the written statements of the appellant’s supervisors, Mr Whealey and Mr Butler, she found the latter to be credible.[3] She said that there were “a number of considerations that call into question the reliability of the [appellant’s] evidence.”[4]
[3] Reasons, [190].
[4] Reasons, [191].
The Arbitrator concluded:
“195. After weighing the evidence, I am not satisfied on the balance of probabilities that the events described by the [appellant] as set out above were real. I am not satisfied that the [appellant] was bullied or harassed. I am not satisfied that the [appellant] was subjected to unfair or unrealistic work expectations.
196. I do accept that the [appellant] experienced considerable difficulty performing his work, although the [appellant] denied in his statement that his performance was an issue. The contemporaneous communications and the evidence of Mr Whealey and Mr Butler indicate that the [appellant] experienced difficulty completing tasks in a timely fashion and submitted work that contained spelling errors and frequently required amendment. Mr Butler described the [appellant’s] performance as being in the bottom quarter of new graduates. Mr Whealey sought advice about managing the [appellant’s] performance. There were instances where the [appellant] was late or did not turn up to work. In a relatively brief period of employment, a significant number of leave days were taken. Dr Williams described his job as ‘high stress’. Although I do not accept that the [appellant] was objectively provided with an excessive workload, I accept that he did experience difficulty completing his workload it [sic] in the manner expected of him.”[5]
[5] Reasons, [195]–[196].
There is no dispute that the appellant experienced an aggravation of his schizophrenia around about the time he was employed by the respondent. Furthermore, the Arbitrator accepted that the medical referees, (Drs Khan, St George and George) all provided opinions consistent with employment being the main contributing factor to the aggravation of the appellant’s condition, albeit in different ways.[6]
[6] Reasons, [179].
The appellant failed because the Arbitrator did not accept that the appellant’s version (“history”) of the workplace events was correct. She said: “For the reasons set out above, having regard to the factual evidence from the respondent, I do not accept that much of that history was credible.”[7]
[7] Reasons, [217].
She said:
“Having carefully weighed the evidence, I am not satisfied that any of the experts had a sufficiently complete and accurate factual background at the time their opinions on causation were expressed.”[8]
[8] Reasons, [218].
The Arbitrator considered carefully and in detail the histories recorded by the medical referees and compared those histories with her conclusions derived from the other evidence. She did not accept that the histories recorded by the medical specialists were accurate or correct.
The Arbitrator said that Drs George, St George and Khan did not seem to have had “the benefit of the full clinical records of Dr Williams or the clinical records of the [appellant’s] usual general practitioner, Dr Siddiqui”. She made reference to the fact that the latter’s records were not before the Commission, notwithstanding a direction for production apparently unanswered by Dr Siddiqui.[9]
[9] Reasons, [202].
The Arbitrator in addition made reference to the materials in Dr Khan’s report indicating admissions or presentations to Campbelltown and Bankstown Hospitals in the period following the cessation of employment with the respondent. However, those materials were not placed before the Commission. The Arbitrator observed:
“Apart from the records of Dr Williams, there is a dearth of contemporaneous treating medical evidence from the period immediately preceding and during the [appellant’s] employment with the respondent, which is most unfortunate given the nature of this case.”[10]
[10] Reasons, [203].
The appellant’s case was that he was relatively well prior to the commencement of employment with the respondent. For example, Dr St George said that the history was of well-managed schizophrenia for the past 8 years with no reported psychotic relapses in the past eight years.[11]
[11] Reasons, [205].
The Arbitrator found the assertion that he was relatively well prior to employment with the respondent was incorrect.
The Arbitrator detailed the appellant’s psychiatric issues from late 2018 as demonstrating that the appellant’s condition had deteriorated. She concluded:
“The records do not, therefore suggest that the [appellant’s] schizophrenia had been consistently well-managed or that there had been no psychotic relapses. It is not clear from Dr Williams’ records whether there was any particular event or circumstance which could account for the apparent deterioration of the [appellant’s] symptoms from late 2018. The suggests an idiopathic onset of symptoms.”[12]
[12] Reasons, [210].
Furthermore the Arbitrator said (correctly) “the only contemporaneous treating medical evidence from the time of employment” was the report of Dr Williams dated 20 April 2020.
The significance of Dr Williams’ report of 20 April 2020 to the Arbitrator’s reasoning is apparent from the following passages:
“212. … On the history later provided to the practitioners at the Worker’s Doctors and the medicolegal experts, the [appellant] was by this time already consuming excessive quantities of alcohol and experiencing significant psychological and psychiatric symptoms including regular auditory hallucinations.
213. In this context, it is remarkable that Dr Williams’ reports describe the [appellant] as ‘coping quite well’ with his job despite it being stressful and being able to lose weight mainly through exercise. The only difficulty identified by Dr Williams was the [appellant’s] lack of a girlfriend. If the [appellant] was indeed experiencing the difficulties he later reported, it is highly unusual that none of this would have been reported to or described by his long-term treating psychiatrist less than a week prior to the [appellant’s] resignation. Although, as suggested by Mr Tanner’s submissions ‘the dam wall may not have broken’ yet, the [appellant] has not explained or addressed in his evidence why there was no reference to the difficulties he described experiencing from his first week of employment in the only piece of contemporaneous medical evidence.
214. Dr Williams’ account of the [appellant’s] condition at 20 April 2020 is consistent with the accounts of the [appellant’s] demeanour given by Mr Whealey and Mr Butler. Both witnesses described the [appellant] as appearing happy, smiling, bubbly and jovial throughout his employment. The [appellant] gave no indication of any stress or distress during the period of his employment. When asked directly whether he had experienced any difficulties in the workplace in a conversation with Mr Whealey after resigning, the [appellant] is said to have denied this and said it had been ‘really good working for the company’. The [appellant] described his employment with the respondent as ‘a pleasure’ in his own resignation email.
215. The contemporaneous accounts of the [appellant’s] condition recorded by Dr Williams, Mr Whealey and Mr Butler, and the [appellant’s] own account in his resignation email, are difficult to reconcile with the [appellant’s] later account of his condition. Although I have accepted that the [appellant] experienced considerable difficulty completing his work to the expected standard there is simply no contemporaneous evidence this was causing any distress or any psychological or psychiatric symptoms. There is no contemporaneous evidence that the [appellant] perceived his work environment as ‘offensive or hostile’.
216. As indicated above, there are no clinical notes from the [appellant’s] regular general practitioner or any regular psychologist to elucidate the matter further. There is no evidence before me that the [appellant] sought medical treatment from the date of his resignation until almost two weeks later when he saw Dr Lim.”
The ultimate conclusions reached by the Arbitrator are set out at [220] to [222]. She said:
“220. As indicated above, I am satisfied that the [appellant] has experienced an aggravation or exacerbation of his symptoms of schizophrenia temporally around the time of his employment with the respondent. I accept that the [appellant’s] job entailed significant responsibilities. I accept that the [appellant] struggled with performance and was not able to complete work to the expected standard. I accept that in the past the [appellant] had been able to hold down jobs in the same industry and complete a university degree. Each of these circumstances weighs in favour of an acceptance of the expert opinions.
221. There is, however, no contemporaneous evidence that the [appellant] found the workplace to be a hostile or offensive environment. There is no contemporaneous lay or medical evidence of the symptoms the [appellant] described experiencing during his employment. To the contrary, there is contemporaneous evidence that the [appellant] appeared happy, enjoyed working with the respondent and perceived that he was coping well. I have not accepted as credible a significant number of claims made by the [appellant] with respect to events in the workplace. The factual history reported to the experts is therefore highly problematic. The psychiatric history provided to the experts involved in the case also appears incomplete or incorrect insofar as there is evidence of a significant increase in psychotic symptoms in late 2018 and early 2019 without any apparent initiating event. There is no medical evidence as to the [appellant’s] condition immediately prior to the commencement of employment. Nor is there any contemporaneous medical evidence during employment other than the reports of Dr Williams on 20 April 2020 which are not consistent with the [appellant’s] subsequent claims.
222. After carefully weighing the evidence, and despite the consistency between the opinions given by Dr Khan and Dr St George and the opinions given by Dr George, which appear on their face consistent with employment being the main contributing factor to the aggravation of the [appellant’s] condition, I am not satisfied that there is a fair climate for the acceptance of those opinions. I am not satisfied on the other evidence that employment was the main contributing factor to the aggravation of the [appellant’s] condition.”
The Arbitrator concluded that she was not satisfied that the appellant had sustained a compensable injury pursuant to s 4(b)(ii) of the 1987 Act. She made an award for the respondent.
CERTIFICATE OF DETERMINATION
Pursuant to s 294 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the Commission determined:
“1. The applicant has not discharged the onus of establishing on the balance of probabilities that he has sustained a compensable injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987.
The Commission orders:
1. Award for the respondent.”
The Certificate of Determination is dated 24 December 2020.
PROCEDURAL
The Appeal Against Decision of Arbitrator dated 21 January 2021 sets out 13 grounds of appeal, each of which I will set out in full later in these reasons.
The appellant seeks relief that the Certificate of Determination of 24 December 2020 be revoked and replaced with alternative orders.
The respondent filed a Notice of Opposition to Appeal Against Decision of the Arbitrator dated 25 February 2021.
Both the appellant and the respondent referred to having prepared their submissions subject to additional submissions on receipt of the transcript. The transcript was, so I am informed by the Personal Injury Commission staff, issued on 28 January 2021. Neither party has lodged additional submissions.
The respondent has filed an application to admit late documents, being an Affidavit of Mr Van der Hout sworn 24 February 2021. There appears to be no opposition to that Affidavit being read.
The Affidavit sets out Mr Van der Hout’s recollection of a teleconference before the Arbitrator on 19 October 2020 relating to a direction for the production of clinical records from the appellant’s general practitioner.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act2020 (the 2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
The appellant and the respondent each submit that the appeal can be decided solely on the basis of the written materials.
The procedural directions PIC2 and WC3 provide that I may be satisfied that on the documents before me and the submissions of the parties that the appeal can be determined on the basis of the 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 of this matter.
THRESHOLD MATTERS: SECTION 352(3) OF THE 1998 ACT
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 353(4) of the 1998 Act have been met.
THE NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
The jurisdiction that I exercise under s 352(5) of the 1998 Act is one which requires the appellant to show error of fact and law or discretion.[13]
[13] Raulston v Toll Pty Limited [2011] NSWWCCPD 25; 10 DDRCR 156.
Section 352(5) provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Northern NSW Local Health Network v Heggie[14] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519.”
[14] [2013] NSWCA 255; 12 DDCR 95, [72].
These principles are of particular importance in the present matter where, so far as I can see, the appellant makes no challenge to the Arbitrator’s factual findings. The appellant’s challenge(s) as I see it is to the inference(s) and legal consequence(s) to be drawn from what are undisputed factual findings of the Arbitrator.
TRANSFER OF THE MATTER FROM THE WORKERS COMPENSATION COMMISSION TO THE PERSONAL INJURY COMMISSION
The appeal was registered with the Workers Compensation Commission on 22 January 2021. The Workers Compensation Commission was abolished and replaced by the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act from 1 March 2020.[15]
[15] Clause 12(1) of Div 2.3 of Part 2 of the 2020 Act.
The 2020 Act amended the 1998 Act such that the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act.
GROUNDS OF APPEAL
Ground 1 - An error of mixed fact and law in that the Arbitrator failed to find that the evidence established that the appellant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the appellant’s psychological condition, and that the provisions of s 4(b)(ii) of the 1987 Act were satisfied
Appellant’s submissions
The appellant submits that, notwithstanding his pre-existing schizophrenia, he had been able to function effectively completing a university degree, working in the construction industry and securing employment with the respondent. He had furthermore worked with the respondent for a period of 11 weeks with effect from 3 February 2020. The other evidence established that he had developed incapacitating psychological symptoms. The appellant’s submission is that the only explanation for the onset of those symptoms is his exposure to stressors in the course of his employment with the respondent.
The appellant submits that the Arbitrator was satisfied that the appellant had experienced an aggravation or exacerbation of his symptoms of schizophrenia “temporally around the time of his employment with the respondent”. He submits moreover that the Arbitrator acknowledged that the appellant’s job entailed significant responsibilities, that he said he struggled with performance and was not able to complete the work to the expected standard. Furthermore, the Arbitrator accepted that the appellant experienced considerable difficulty performing his work. The appellant’s submission is that those factors are an obvious cause for distress and aggravation of the appellant’s underlying condition. The timing of the onset of the appellant’s symptoms in April 2020 confirms the material relevance of those factors.
It is the appellant’s submission that there was no evidence of any causal factor other than the appellant’s employment, for the aggravation of the underlying schizophrenia. Further, the Arbitrator failed to make the necessary causal connection between the relevant workplace stressors and the aggravation of the appellant’s underlying condition.
The final submission is that the Arbitrator’s failure to find the appellant’s employment was the main contributing factor to the aggravation and exacerbation of his schizophrenia was erroneous.
Respondent’s submissions
The respondent submits that the Arbitrator approached the matter correctly. The Arbitrator correctly identified at Reasons [175] the key question as being whether the employment was the main contributing factor to the aggravation of the condition (that being the test in the section mentioned above). The Arbitrator was correct to synthesise the views of the medical referees.
The Arbitrator had to look at all of the evidence - not only the Independent Medical Examination (IME) reports and so on. The IME evidence was tainted by incorrect and incomplete histories provided by the appellant. The worker cannot expect to succeed in an Arbitration based on a consistency of expert opinion where that consensus was the result of incorrect histories.
The appellant made a number of allegations set out in his statement material that were summarised at paragraph [182] of the decision. The Arbitrator found at paragraph [183] of the decision “[e]ach of these allegations is refuted by the evidence of the respondent.”
None of the grounds of appeal set out an adequate basis to refute the conclusion that the underlying factual substratum relied upon by the IMEs was not proven to be correct. None of the grounds are established because they ignore the proposition that the Arbitrator made factual findings at a lay level, in favour of the respondent.
The Arbitrator carefully analysed the factual investigation material (para [183] onwards). In particular, she found (as she was entitled to do) that the alleged bullies, Messrs Whealey and Butler, did not appear on the evidence to be “unapproachable, aggressive, abusive or unwilling to assist.”[16]
[16] Reasons, [185].
Consideration
This ground of appeal is really an objection to the Arbitrator’s ultimate finding adverse to the appellant. There is no challenge as far as I can see to the Arbitrator’s conclusion at Reasons [217] and [218] that she was not satisfied that the history recorded by the experts was credible or that the experts had “a sufficiently complete and accurate factual background at the time their opinions on causation were expressed.”[17]
[17] Reasons, [218].
The Arbitrator:
(a) found the evidence of Mr Whealey and Mr Butler to be credible,[18] and
(b) found the evidence of the appellant to be subject to a number of considerations impacting on its reliability, namely:
(i)the history of consuming significant quantities of alcohol and occasionally cocaine in the period prior to the commencement of employment;[19]
(ii)The evidence from the appellant’s parents and from Dr Williams concerning the reliability and credibility of the appellant’s statements,[20] and
(iii)The Arbitrator did not accept the complaints of bullying, intimidation, unfair or unrealistic work expectations or harassment.[21]
[18] Reasons, [190].
[19] Reasons, [193]–[194].
[20] Reasons, [194].
[21] Reasons, [195].
The appellant’s submissions do not engage with the Arbitrator’s conclusion that she was not satisfied on the balance of probabilities “that the events described by the [appellant] as set out above were real. [She was not] satisfied that the [appellant] was bullied or harassed. [She was not] satisfied that the [appellant] was subjected to unfair or unrealistic work expectations.”[22]
[22] Reasons, [195].
In Commissioner of Police v Dalziel[23] Basten JA at [25], (in a dissenting Judgment) quoted Windeyer J in Federal Broom Co Pty Limited v Semlitch[24] on the question of causation:
“When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. In this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs.
… it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so.”[25]
[23] [2011] NSWCA 290 (Dalziel).
[24] [1964] HCA 34; 110 CLR 626 (Semlitch).
[25] Semlitch, 641–642.
Basten JA said:
“Other members of the High Court in Semlitch did not join in the reasoning of Windeyer J, but it has since been applied, including by this Court in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 … Conduct which actually occurs in a workplace and is perceived as creating an offensive or hostile working environment, from which a cognizable injury follows, may give rise to a claim for compensation: Chemler at [69]. There may, however, be a different result where the event itself was imagined, or there was no event giving rise to a particular perception or belief on the part of the claimant: see St Mary's School v Askwith [2011] VSCA 90 at [12] (Ashley JA, Warren CJ and Kyrou AJA agreeing).”[26]
[26] Dalziel, [26].
In this matter the Arbitrator found as a fact that the events relied upon by the medical experts as the foundation of their consensus opinion, did not occur. That factual finding had the legal consequence that the consensus opinion could not be sustained.[27]
[27] Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 (Paric).
If the medical opinion could not be accepted it followed that the appellant failed to establish that the employment was the main contributing factor to the aggravation of his underlying schizophrenia.
It is no answer to the deficiency in the appellant’s evidence to refer generally to work stresses. The appellant had to establish (ie persuade the Arbitrator) specifically of some “event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed” that the medical referees found gave rise to the aggravation.
The Arbitrator found that there was no occurrence, event, characteristic or condition of the work performed as asserted by the appellant and recorded by the medical referees. It followed that notwithstanding, the medical referees’ agreement on diagnosis, the appellant failed to establish that the main contributing factor to the aggravation was the employment.
Ground 1 of the appeal is not made out and must be dismissed.
Ground 2 - An error of mixed fact and law in that the Arbitrator, having correctly found that the appellant experienced an aggravation or exacerbation of his symptoms of schizophrenia around the time of his employment with the respondent, then failed to find that employment was the main contributing factor to such aggravation or exacerbation (in the absence of any evidence as to an alternative source of aggravation or exacerbation at the time)
Appellant’s submissions
The appellant submits that, having regard to the Arbitrator’s finding, “[t]he only possible finding that could have been made on the evidence before the Arbitrator was that the appellant’s employment was the main contributing factor to the aggravation or exacerbation which occurred in April 2020.”[28]
[28] Appellant’s submissions, [31].
Respondent’s submissions
The respondent submits that the ground is “predicated on an impermissible reversal of the onus of proof” and that “in order for the Appellant to have succeeded below, he needed to have persuade[d] the Arbitrator that his case was more likely than that of the Respondent.” The Respondent cites a number of authorities for that proposition and further submits: “Simply because there may have been a psychiatric episode at a point in time when the Appellant was employed by the Respondent is not, alone, a persuasive case that the fact of employment was the matter upon which to anchor causation of that episode.”[29]
[29] Respondent’s submissions, [14]–[15].
Consideration
The Arbitrator was careful to say that the aggravation of symptoms of schizophrenia occurred “temporally around the time of his employment”. She did not find that fact alone to be determinative of whether employment was the main contributing factor to the aggravation. Taken at its highest, such a finding is not the equivalent of a finding that there were symptoms in the course of or arising out of employment.
There was no requirement to find what caused the symptoms exhibited around the time of the appellant’s employment with the respondent. That there was no evidence of an alternative explanation does not prove that the employment was the cause of the symptoms around the time of the employment.
The requirement of s 4(b)(ii) is that the employment in the sense referred to above be the main contributing factor to the aggravation. The happenstance that symptoms occurred “around” the time of the employment with the respondent is but one factor to be considered with the whole of the evidence.
The Arbitrator was cognisant of the temporality of the symptoms and employment.[30] This was why she attached significance to the report of Dr Williams dated 20 April 2020 in which the Doctor recorded the appellant as “coping well” the only concern being the absence of a “girlfriend”.
[30] See Reasons, [212]–[213].
The Arbitrator noted that until 6 May 2020 there was no evidence, lay, medical or otherwise, confirming the history given by the appellant to the Workers Doctors and the medicolegal experts.
Furthermore, it is difficult to see how a finding of symptoms of schizophrenia “around the time” could lead to only one conclusion on the primary issue in the matter.
In my view, the finding does not lead as the only “possibility” to a conclusion that the employment was the main contributing factor. The finding that Mr Palasty had symptoms “around the time of his employment” with the respondent does not contradict the evidence of Dr Williams that he did not have symptoms as at 20 April 2020. The contradiction between what Dr Williams records on 20 April 2020 and what is recorded in the clinical records of Workers Doctors and the medicolegal experts is specifically addressed by the Arbitrator at Reasons [212]–[214].
The Arbitrator concluded that before 6 May 2020, the only evidence the employment had any effect on the underlying condition was that of the appellant. She found this evidence to be unreliable and not to be preferred over that of the respondent. It followed that on the Arbitrator’s analysis of the evidence there was no evidence that the employment had had any impact on the appellant’s schizophrenia until he consults the Workers Doctors on May 6, 2020. The fact that the Arbitrator accepted that there were symptoms “around the time of employment” takes the matter no further.
For the foregoing reasons Ground 2 of the appeal is not made out and is dismissed.
Ground 3 - An error of mixed fact and law in that the Arbitrator, having accepted that “there is no medical evidence of any alternative cause for the aggravation of the [appellant’s] condition”, proceeded to determine the matter on the basis that employment was not the relevant cause
Appellant’s submissions
The appellant submits that the absence of evidence of an alternative cause for the aggravation or exacerbation of the appellant’s condition meant that the finding that employment was not the main contributing factor to the aggravation or exacerbation which occurred in April 2020 lacked substantive probative foundation.
Respondent’s submissions
The respondent says that this ground adds nothing to Ground 2.
Consideration
The onus was on the appellant to establish that the employment was the main contributing factor in relation to exacerbation. That meant that the appellant was required to persuade the Arbitrator that the opinions of the three medicolegal doctors were soundly based on the facts as found.
The absence of an alternative explanation for the appellant’s condition does not prove that the employment was the main contributing factor to the aggravation of the schizophrenia. The appellant in this ground of appeal appears to assume that the question is binary; either the employment was or was not the main contributing factor to the aggravation. I do not agree that this is correct.
The point is not whether there was evidence of an alternative cause. The point is did the appellant prove that the employment was a material contributing factor to this aggravation? He did not.[31]
[31] cf Semlitch, 641-642.
It follows the appellant failed to prove that the employment was the main contributing factor to the symptoms recorded by the specialists after his resignation.
In my view, Ground 3 is not made out and is dismissed.
Ground 4 - An error of mixed fact and law in that the Arbitrator concluded that the appellant had not established his case of aggravation “on the balance of probabilities”, whereas there was no countervailing lay or expert evidence which supported a source of aggravation other than the difficulties the appellant experienced during the course of his employment with the respondent, and which would be required in order to alter the balance which, given the evidence, was in the appellant’s favour
Appellant’s submissions
The appellant submits that there were no competing versions to weigh up. He submits:
“The Arbitrator’s finding that the appellant, whose case of work-related aggravation was made out in the respondent’s medical case as provided by Dr George, as well as Dr Khan and Dr St George, had not established his case on the balance of probabilities is misconceived. The medical consensus was that the appellant suffered an aggravation of his underlying condition, and there was no substantive dispute requiring determination of what was common ground between the medical specialists.”[32]
[32] Appellant’s submissions, [35].
Respondent’s submissions
The respondent submits that this is essentially a repetition of the other grounds. On the question of medical consensus, consensus will only be persuasive where supported by findings of lay facts as set out above for Ground 1.
Consideration
In my view, the respondent’s submission is correct. The Arbitrator’s favourable finding to the appellant (at Reasons, [179]) does not detract from nor does it demonstrate error in the Arbitrator’s conclusion that the histories on which the opinions were based were not sufficiently supported by the evidence.
Ground 4 of the appeal is dismissed.
Ground 5 - An error of mixed fact and law in that the Arbitrator’s decision is inconsistent with the medical opinions of all forensic examiners, and is devoid of any expert foundation
Appellant’s submissions
The appellant submits that the Arbitrator’s decision is incompatible with the medical evidence and lacks any substantive foundation.
Respondent’s submissions
The respondent submits: “This appears to be a repetition of the ‘consensus’ point yet again”.
The respondent also submits:
“This is not a case of an Arbitrator, being a lay person, imposing her own medical views in preference to those uniformly held by doctors. Rather, it is a case of the Appellant failing to discharge his onus because all of the IME material obtained by the parties (having no property in their witnesses) was undermined by the lay evidence.”[33]
[33] Respondent’s submissions, [18].
Consideration
This ground of appeal intersects to a degree with Ground 6 which reasons should be added to what appears here.
The appellant does not engage with or challenge the Arbitrator’s determination that the material relied upon by the medical witnesses was not established to her satisfaction. She was not persuaded that the appellant had experienced the events regarded by the medical witnesses as causative. Unless that finding of the Arbitrator is displaced, it inevitably followed that the opinion evidence would not be accepted.[34]
[34] Paric, [9].
Expert evidence cannot rise above the substratum of proven factual material. The appellant has not established that the Arbitrator was wrong in her conclusion that the appellant had not proven the facts assumed by the experts for the purpose of their reports. Absent a successful challenge in this regard, this ground of appeal fails.
Ground 5 of the appeal is dismissed.
Ground 6 - An error of mixed fact and law in that the Arbitrator sought to diminish the weight of the medical consensus by erroneously asserting that the relevant specialists did not have “a sufficiently complete and accurate factual background”
Appellant’s submissions
The appellant submits that the relevant “factual background” was that the appellant had, notwithstanding his underlying condition, been able to complete a university degree and work in the construction industry prior to commencement of employment with the respondent. He had, moreover, been able to secure employment with the respondent and work for the respondent for 11 weeks before decompensating.
The appellant further submits that there were stresses experienced by the appellant as found by the Arbitrator, namely, his job “entailed significant responsibilities” and he “struggled with performance and was not able to complete work to the expected standard”.
The appellant submits:
“Regardless of whether the conduct of the respondent’s management constitutes ‘bullying’ or ‘harassment’, the evidence establishes that they considered his performance to be unsatisfactory, and repeatedly directed him to resubmit tasks which had been assigned to him. As the Arbitrator noted he ‘struggled with performance and was not able to complete work to the expected standard’. That would plainly have been stressful to the appellant. This experience also forms part of the relevant factual background which explains the aggravation of the appellant’s underlying condition in April 2020.”[35]
[35] Appellant’s submissions, [41].
Respondent’s submissions
The respondent submits:
“The difficulty with this ground is that it does not disclose error - rather, it compares the fact case agitated below by the Appellant with the facts actually found. Taking a different view as to the facts is not an error.”[36]
[36] Respondent’s submissions, [19].
The respondent also submits:
“… it is difficult to conceive of an appeal, as contemplated by s 352 arising from arguments as to attribution of weight. As the tribunal of fact, the Arbitrator was required to assess the evidence as she saw it. To give more or less weight to one or other piece of evidence is not an error – it is simply a difference of opinion. What a tribunal of fact makes of a piece of evidence is within the discretion of the tribunal.”[37] (citations omitted)
[37] Respondent’s submissions, [20].
Consideration
There are, in my view, a number of difficulties with the appellant’s challenge:
(a) This ground of appeal does not identify an error of underlying fact, it seems to be directed at the conclusion reached by the Arbitrator that the appellant had not made out the factual matters summarised at [182] of the Reasons. However there is no express challenge to any of the findings that support the conclusion.
(b) The difficulty is that if the underlying finding(s) are unchallenged the conclusion adverse to the appellant was open to the Arbitrator.
(c) The appellant in his submission says that matters noted by the Arbitrator as part of the work experience were “plainly stressful” to the appellant. These matters are undoubtedly part of the relevant factual background but they do not explain the cause of the aggravation. There was no medical or lay evidence that those matters on their own were sufficient to lead to Mr Palasty’s psychiatric injury.
(d) As the respondent submits, the weight to be attached to a piece of evidence is for the trier of fact to determine. That some other decision maker might attach different weight to the evidence does not constitute error on the part of the primary determiner of the facts.
(e) The medical opinion(s) relied on by the appellant were based on a factual substratum wider than the matters identified by the appellant at [41] of his submissions. The consensus medical opinion depended on a factual matrix which was not made out.
(f) Furthermore, the Arbitrator was cognisant of the appellant’s background and made express and favourable reference to the appellant’s achievements. She said: “I accept that in the past the [appellant] had been able to hold down jobs in the same industry and complete a university degree. Each of these circumstances weighs in favour of acceptance of the expert opinions.”[38]
[38] Reasons, [220].
That the appellant’s job entailed significant responsibility and that he struggled with performance and was not able to complete the work to the expected standard are not in my view shown by the medical evidence to be the main contributing factor to the aggravation. More importantly, the Arbitrator was not satisfied that these matters alone were sufficient to support the consensus medical opinion.
As the respondent submits, the appellant merely emphasises aspects of the factual matrix, submitting that the Arbitrator should have reached a different conclusion. But that does not demonstrate error. That may demonstrate that a different decision maker might reasonably have reached a different conclusion but that would not be a basis for revising the Arbitrator’s conclusion unless it demonstrated error of fact, law or discretion.
The ground of appeal as expressed merely suggests that the Arbitrator did not attach sufficient weight to the “factual background” without identifying what aspect of the factual background was so affected or indicating in what respects the Arbitrator was in error. No error is demonstrated.
For these reasons, Ground 6 is rejected.
Ground 7 - An error of mixed fact and law in that the Arbitrator erroneously required contemporaneous complaints as necessary for a finding pursuant to s 4(b)(ii) of aggravation or exacerbation of the appellant’s schizophrenia
Appellant’s submissions
The appellant submits that the passage at [221] of Reasons reveals “inappropriate reasoning that the absence of contemporaneous records renders the appellant’s case unreliable”.[39]
[39] Appellant’s submissions, [43].
The appellant submits that:
“It is uncommon in cases of this kind for a worker to experience increasing stressors, until a moment of crisis is reached, and the onset of incapacitating symptoms occurs. The task of the Arbitrator is to then examine the preceding circumstances in order to understand the factors which may have caused the onset of symptoms.”[40]
[40] Appellant’s submissions, [45].
(I am not sure whether the appellant intended “uncommon” or “common” in this submission. But I trust that I have the point when I say that the submission is that the task of the Arbitrator is to examine the circumstances preceding the onset of symptoms to understand the factors which may have caused that onset.)
The appellant points to the appellant’s job as entailing “significant responsibilities” and the appellant’s difficulty in completing the work to the expected standard. The appellant submits that the Arbitrator did not have difficulty in making those findings “without contemporaneous evidence”. The appellant submits that those findings provide the relevant foundation explaining the aggravation of the appellant’s underlying condition and that the Arbitrator failed to make the necessary connection.
Respondent’s submissions
The respondent submits that the Arbitrator did not “require” anything. It submits “it was open to the Arbitrator to make factual findings about what was proven, by reason of being in, or being absent from the tendered clinical material.”[41]
[41] Respondent’s submissions, [24].
The respondent further submits that the “value of contemporaneous notes in personal injury cases is well established” (citations omitted).[42]
[42] Respondent’s submissions, [23].
Consideration
The Arbitrator’s finding that the appellant’s “job entailed significant responsibilities” and that he “struggled with performance and was not able to complete work to the expected standard” does not provide a sufficient foundation for the conclusion that the employment was the main contributor to the aggravation of the appellant’s underlying condition. (See discussion of Ground 6 of the appeal.)
So far as the evidence before the Arbitrator went there was no evidence other than the appellant’s evidence that he experienced any of the symptoms complained of by him until after he resigned his employment and then only when he went to see Dr Lim at the Workers Doctors practice on 6 May 2020. In paragraph [221] of the Reasons, the Arbitrator summarises the evidence as she found it.
She did not require contemporaneous complaints. She simply observed that there was no such evidence and its absence added to her conviction that the history as recorded in the medical reports was not made out.
There is nothing in the passage quoted by the appellant or otherwise in the Arbitrator’s statement of reasons demonstrating a reasoning process dependent on the presence or absence of contemporaneous records. The Arbitrator did not require contemporaneous records, she merely noted that there were no such records as confirmatory of her acceptance of the respondent’s evidence contradictory to that of the appellant. She committed no error in doing so.
Ground 7 of the appeal is not made out.
Ground 8 - An error of mixed fact and law in that the Arbitrator penalised the appellant for the absence of clinical records in the proceedings, and erroneously stated the appellant had made no attempt to obtain those records and place them before the Commission
Appellant’s submissions
The appellant, having obtained a direction for production, served the same on the general practitioner, Dr Siddiqui, who failed to comply with the direction. The Arbitrator was informed that the direction had been served and that Dr Siddiqui had failed to attend to production in accordance with the direction. The appellant submits that the Arbitrator erroneously asserted the appellant “has made no attempt to obtain those records and place them before the Commission.” He then goes on to assert:
“The obvious inference is that she has made impermissible assumptions adverse to the appellant.”[43]
[43] Appellant’s submissions, [51].
The appellant further identifies that the Arbitrator was critical of the absence of treating medical evidence for the period prior to and during the appellant’s employment with the respondent as well as in relation to his admissions or presentations to Campbelltown and Bankstown Hospitals. He then asserts:
“There is no basis for the critical and discriminatory remarks directed at the appellant (and his representatives) by the Arbitrator.”[44]
[44] Appellant’s submissions, [53].
The appellant notes that the respondent could have produced the records and that on the material before the Arbitrator it would have been evident that the appellant had been able to work and study before commencing employment with the respondent, thus confirming that his condition was being managed.
Respondent’s submissions
The respondent submits that the Arbitrator did not penalise the appellant, nor was she in error in stating that the appellant had failed to obtain the relevant records.
The respondent further submits that there is no inference that the Arbitrator made a finding adverse to the appellant on the basis of the absence of this material. All that occurred was the appellant was found not to have proven his case. However the respondent says that the appellant may be suggesting something more sinister - if so, the appellant should set out properly what is being suggested.
The allegation of discriminatory behaviour on behalf of the Arbitrator is an allegation of bad faith and should be particularised properly.
Consideration
There is no ground of appeal that the appellant was denied procedural fairness or that the decision of the Arbitrator should be upset for bias. The submission that the appellant makes that the Arbitrator’s determination depended on “impermissible assumptions adverse to the appellant”; “critical and discriminatory remarks” and that the appellant was being “penalised” is with respect inappropriate unless an explicit challenge is made on these grounds.
If what is being asserted is a denial of procedural fairness or bias this should have been the subject of a separate ground of appeal alleging the same with appropriate particulars in explicit terms.
Enforcement of the direction to produce documents addressed to Dr Siddiqui was in the hands of the appellant and his advisers. The appellant could and should have sought to have the direction enforced and, if necessary, applied for an adjournment of the proceeding so this could occur. Likewise the absence of records from Campbelltown and Bankstown Hospitals.
The Arbitrator’s remark at [202] of the Reasons that “the [appellant] has made no attempt to obtain” the records may have been incorrect in so far as the solicitors obtained a direction for production to which there was non-compliance. However the point made by the Arbitrator was that the records were not before the Commission, as she makes clear in paragraph [203]:
“In addition, there is a reference in the materials of Dr Khan to admissions or presentations to Campbelltown and Bankstown Hospitals in the period following the cessation of employment with the respondent. None of that material has been placed before the Commission. Apart from the records of Dr Williams, there is a dearth of contemporaneous treating medical evidence from the period immediately preceding and during the [appellant’s] employment with the respondent, which is most unfortunate given the nature of this case.”
There is nothing in the Reasons to indicate discrimination against the appellant or his advisers.
The appellant’s case was that he had experienced symptoms from day one and during the first week of his employment. Notwithstanding, except for Dr Williams’ account of the appellant’s condition on 20 April 2020 there was no evidence before the Arbitrator of any attempt by the appellant to obtain medical assistance between the commencement of employment on 3 February 2020 and the resignation on 23 April 2020. Furthermore in his statements dated 15 September 2020 and 25 November 2020, Mr Palasty did not say when he consulted with Dr Siddiqui.
The accepted lay evidence before the Arbitrator was that the appellant did not exhibit any overt signs of distress. Indeed the accepted evidence was to the contrary.
The procedure in the Workers Compensation Commission meant that the evidence to be relied on by the parties was disclosed in advance of the hearing before the Arbitrator. It must have been known to the appellant and his advisers that the respondent’s case was to the effect that he did not have the symptomatic response of which he subsequently complained during the period of employment. It was for the appellant to marshal such evidence as he could to overcome the respondent’s evidence to this effect.
In the usual course, evidence of the general practitioner, the treating psychiatrist or psychologist or evidence of relatives and acquaintances showing manifestations of symptoms would be expected to have been adduced. In the present matter the Arbitrator was correct to say that evidence of this type was not before her. The absence of such evidence meant that it was easier for her to accept the evidence of the respondent’s witnesses.
Ground 8 of the appeal is dismissed.
Ground 9 - An error of mixed fact and law in that the Arbitrator, having noted that the appellant’s schizophrenia had for a considerable period been well managed, and troubled the appellant only occasionally when appropriately medicated, and that he was able to hold down other employment and complete a university degree, failed to recognise that the appellant’s employment with the respondent resulted in a clear change in his condition and was the obvious and only aggravating factor
Appellant’s submissions
The appellant submits that the Arbitrator failed to explain the shift from management of the appellant’s condition, and an ability to study and hold down employment, to the onset of incapacitating symptoms in April 2020.
Respondent’s submissions
The respondent submits that the Arbitrator did not fail to explain the shift from a manageable condition to an incapacitating one and in [193] noted the evidence of Dr Williams regarding alcohol abuse and the use of cocaine, prior to employment. This was not a successfully managed mental health situation.
Consideration
The Arbitrator said:
“The [appellant] asserts that he was relatively well prior to commencing employment with the respondent and relies upon the records of practitioners associated with the Worker’s Doctors, whom the [appellant] consulted for the first time following the injury after a referral by his solicitors. It is not apparent having regard to the clinical records of the Worker’s Doctors that the full extent of the [appellant’s] psychiatric history was appreciated until Dr Williams wrote to them in late June 2020. The records of the initial consultations and reports suggested diagnosis of an adjustment disorder had been made.
Dr Williams’ clinical records present a rather different picture of the [appellant’s] pre-existing condition than appears to have been reported to Dr Khan, Dr St George and Dr George. Dr St George, for example, took a history of well-managed schizophrenia for the past eight years with no reported psychotic relapses in the past eight years.”[45]
[45] Reasons, [204]–[205].
Thereafter the Arbitrator details at length the contrary evidence in paragraphs [205] to [209], she concludes:
“The records do not, therefore suggest that the [appellant’s] schizophrenia had been consistently well-managed or that there had been no psychotic relapses. It is not clear from Dr Williams records whether there was any particular event or circumstance which could account for the apparent deterioration in the [appellant’s] symptoms from late 2018. This suggests an idiopathic onset of symptoms.
The last report from Dr Williams prior to the [appellant] commencing employment with the respondent was dated 11 August 2019. On that occasion, the [appellant] appeared to be coping with a job but had been using cocaine recently. At that point, there were no obvious features of the [appellant’s] suppressed schizophrenia.”[46]
[46] Reasons, [210]–[211].
The Arbitrator made a careful assessment by reference to the records which were before her of the extent to which the appellant’s schizophrenia had been “well managed” without “psychotic relapses”. On the basis of the records she concluded as a matter of fact to the contrary.
The appellant does not challenge that finding of fact. The challenge in this ground of appeal starts with the premise that there was a change in the appellant’s condition from one of well managed schizophrenia before employment to uncontrolled schizophrenia after the employment with the respondent. The Arbitrator’s well-reasoned conclusion to the contrary is not challenged either by the ground of appeal or the submissions in support.
It was for the appellant to make good the proposition he was “relatively well prior to commencing employment with the respondent”. This he failed to do for the reasons indicated by the Arbitrator.
Ground 9 of the appeal is not made out and is dismissed.
Ground 10 - An error of mixed fact and law in that the Arbitrator erroneously proceeded to determine the matter on the basis that the appellant needed to establish that he was bullied or harassed, that he was subjected to unfair or unrealistic work expectations and that he was objectively provided with an excessive workload
Appellant’s submissions
The appellant says that the Arbitrator misdirected herself at [195] of the Reasons. He supports that contention by submitting:
“The appellant does not need to establish that he was bullied or harassed, in order to establish that he suffered a work-related psychological injury.
All that is required is a relevant work-related stressor which explains the onset of a worker’s symptoms.”[47]
[47] Appellant’s submissions, [59]–[60].
He then says that the Arbitrator’s findings that the job entailed significant responsibility, that the appellant struggled with the performance and was not able to complete work to the expected standard and experienced considerable difficulty in performing his work were real events as contemplated by Chemler and Attorney General’s Department v K.[48]
[48] [2010] NSWWCCPD 76.
The appellant says:
“Insofar as the appellant considered himself to have been subjected to unrealistic work expectations, or to have been provided with an excessive workload, those are matters of perception. As the Arbitrator accepted, the appellant struggled with performance. The respondent’s management considered the standard of his work to be poor and to require repeated review. The appellant’s experience of his interaction with management, and his failure to meet the expectations of his employer, involves a perception of unrealistic expectations of him and an excessive workload. He does not have to establish, with reference to some objective standard, whether the expectations of management were unrealistic and whether his workload was excessive. What is relevant is that he struggled.”[49]
[49] Appellant’s submissions, [62].
Respondent’s submissions
The respondent submits that the appellant pleaded his case in a certain way and failed to make out that case.
In the ARD the respondent notes that the appellant pleaded his injury was caused by:
“Ongoing bullying harassment, over work and unfair workplace expectations. The applicant was exposed to ongoing overwork, bullying, harassment, increased workload and unrealistic work expectations which led to aggravation, acceleration and exacerbation of his pre-existing schizophrenia. …”
The respondent submits that it was incumbent upon the Arbitrator to determine the pleaded case and she did not misdirect herself in that regard. The respondent further submits:
“Given the way the case was presented, the Appellant did ‘need to establish that he was bullied or harassed’ contrary to what is submitted by him now at paragraph [59] of the submissions. It is not sufficient to point, as he does at [60] to a ‘work-related stressor’ at large. Whilst the range of such stressors are potentially infinite, the Arbitrator has to determine the case as it is run before her. It is not for the Arbitrator to postulate additional unpleaded allegations of causation.”[50]
[50] Respondent’s submissions, [35].
Consideration
In my view the respondent’s submissions are precisely on point. The appellant was required to prove the case that he had pleaded. It is not open to the appellant on appeal to change the case advanced at first instance.
The Arbitrator did not accept as a matter of fact that the events described by the appellant as set out in paragraph [182] of the Reasons were real. Although in paragraph [195] she refers to not being satisfied that the appellant was bullied or harassed or subject to unfair or unrealistic work expectations, she was plainly not satisfied of any the matters set out in paragraph [182].
There is no challenge to the summary of the relevant matters comprising the appellant’s case at [182] of the Reasons. They were the matters that the Arbitrator concluded were not established on the evidence. Because those matters were not established on the evidence, they were not “real” for the purpose of Mr Palasty’s subsequent symptomatology.
It was not a case in which Mr Palasty suffered symptoms from his perception of real events that had occurred in the workplace. He did not establish that the events he alleged to have occurred in the workplace had in fact occurred. It was for that reason that his case failed.
The evidence did not support the conclusion that the matters at [220] and [196] of the Reasons caused the aggravation. Furthermore, those matters were not part of the case advanced by the appellant at trial.
Ground 10 of the appeal is not established and is dismissed.
Ground 11 - An error of mixed fact and law in that the Arbitrator, having found that the appellant’s job entailed significant responsibilities, that he struggled with performance and was not able to complete work to the expected standard, and had been able to hold down jobs in the same industry and complete a university degree, failed to make the logical and consequential finding that his responsibilities in employment with the respondent, and his struggle to complete work to the expected standard, explain his psychological decompensation (ie the aggravation of his schizophrenia, thus rendering it symptomatic with incapacitating effects)
Appellant’s submissions
The appellant submits that the Arbitrator failed to explain the reasons for the onset of the appellant’s symptoms in April 2020. Having found that the appellant’s condition was aggravated at that time and that employment had no real causal role in such aggravation, the Arbitrator has purported to determine the dispute without providing reasons for the onset of the appellant’s symptoms having some other basis. If she did consider the aggravation to be due to some other causal factor, she did not identify that factor or refer to the evidence in support thereof.
Respondent’s submissions
The respondent submits that the Arbitrator was not required to identify alternative case theories and compare them to the case theory of the appellant. The respondent quotes the decision in NSW Police Force v Hahn.[51]
[51] [2017] NSWWCCPD 51 (Hahn), [61].
The respondent further submits that the Arbitrator did explain her factual findings in this respect.
Consideration
I, with respect, would adopt what Acting Deputy President King SC said in Hahn at [61], which in my view accords with well understood authority.
There was no obligation on the Arbitrator to find a causal factor to explain the onset of the appellant’s symptoms. All that she was required to do was explain why she was not satisfied that the case advanced by the appellant should be upheld. In my view, she explained and provided detailed reasons for the decision she made.
The reasons satisfy the requirements for appellate review and for explaining to the losing party, the appellant, the reasons why he did not succeed.
In my view, Ground 11 of the appeal is not made out and is dismissed.
Ground 12 - An error of mixed fact and law in that the Arbitrator failed to provide proper reasons for her decision that the appellant’s employment with the respondent was not the main contributing factor to the aggravation of his underlying psychological condition
Appellant and respondent’s submissions and consideration
The parties make the same submissions in support of Ground 12 as they do in support of Ground 11. The resolution of Ground 11 resolves Ground 12. Ground 12 is dismissed.
Ground 13 - An error of mixed fact and law in that the Arbitrator failed to make awards pursuant to sections 36, 37 and 60 of the 1987 Act in the appellant’s favour.
Appellant and respondent’s submissions
The appellant and the respondent both acknowledge that this ground is consequential upon the outcome of the other grounds of appeal and the overall determination of the matter. I agree. It does not stand as a separate ground of appeal and is dismissed.
Conclusion
In my view the appellant has failed to make out any of the grounds of appeal. The Arbitrator’s Award is therefore confirmed.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
7 July 2021
3
10
0