Palavicino v Australian Tipping Systems Pty Limited

[2007] NSWWCCPD 242

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Palavicino v Australian Tipping Systems Pty Limited [2007] NSWWCCPD 242

APPELLANT:  Kerry Palavicino

RESPONDENT:              Australian Tipping Systems Pty Limited

INSURER:QBE Workers Compensation (NSW) Limited

FILE NUMBERS:  WCC1660-07 and WCC2251-07

DATE OF ARBITRATOR’S DECISION:          11 July 2007

DATE OF APPEAL DECISION:  12 December 2007

SUBJECT MATTER OF DECISION: Psychological injury; application of sections 9A and 11A of the Workers Compensation Act 1987; injury; incapacity; weight of evidence

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant:      Keddies, Solicitors 

Respondent:   Moray & Agnew, Solicitors

ORDERS MADE ON APPEAL:  1.         The decision of the

Arbitrator dated 11 July 2007 is confirmed.  

2.I make no order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1.On 7 August 2007, Kerry Palavicino (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 11 July 2007.

2.The Respondent to the appeal is Australian Tipping Systems Pty Limited (‘the Respondent).

3.The Appellant was born on 27 July 1949, and is presently 58 years old.

4.He commenced employment with the Respondent in September 2003 as a workshop manager. He had previous experience in the trade of metal engineering.

5.The Appellant claimed that on 1 December 2003, he was carrying a steel beam weighing approximately 70 kilograms on his shoulder, with another worker, when he tripped and fell to the ground, as a consequence of which he claimed he sustained injuries to his back, neck and right knee.

6.He took no time off work at that stage, and remained in his managerial job until 21 April 2004.

7.On that date, the Appellant had a dispute with the Respondent over leave he had taken on 2 April 2004.The Appellant claimed that the leave ought to have been taken as sick leave rather than a day of annual leave as allocated by the Respondent.

8.In addition, the Appellant claimed that a number of incidents occurring during the course of his employment with the Respondent caused him to suffer a psychological injury culminating in his cessation of employment on 21 April 2004.

9.The Appellant has not resumed employment since that date.

10.The Appellant gave notice of the injury to his back and right knee on 12 November 2004. He gave notice of the injury to his neck on 1 December 2005, and his psychological injury on 21 April 2004.

11.On 27 April 2004 the Appellant lodged a claim with the Respondent’s insurer, QBE Workers Compensation (NSW) Limited (‘QBE’) for weekly benefits.

12.On 18 August 2005 QBE advised the Appellant that it denied liability for the claim for weekly benefits in respect of the claimed psychological injury.

13.Weekly payments of compensation ceased on 28 September 2005.

14.On 12 March 2007 the Appellant filed an ‘Application to Resolve a Dispute’ in the Commission being matter number WCC1660-07 seeking weekly benefits, medical expenses and lump sum compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) as a consequence of the incident on 1 December 2003. In his Application, the Appellant claimed that he suffered an injury to his back, neck and right knee in the fall which occurred at work on 1 December 2003.

15.On 2 April 2007 the Appellant filed a further ‘Application to Resolve a Dispute’ in the Commission being matter number WCC2251-07 wherein he claimed weekly benefits, medical expenses and lump sum compensation pursuant to the provisions of the 1987 Act as a consequence of his psychological injuries. In that Application, the Appellant identified the date of injury as “21/4/2004 nature and conditions of employment between 2/9/2003 and 21/4/2004”. The injury was alleged to have occurred “as a result of a series of incidents, including verbal abuse, physical threats and a lack of action by management”. The injury was described as “psychological injuries – major depressive disorder, anxiety, stress”.

16.Both Applications were heard together at a conciliation/arbitration hearing on 8 June 2007. Both parties made oral submissions recorded in a transcript of that date.

17.Briefly, the Arbitrator found against the Appellant in respect of his claim for compensation for psychological injury. His claim for weekly benefits in relation to injuries he claimed to have sustained in the incident on 1 December 2003 was also rejected. The Arbitrator further determined that any injury to the Appellant’s neck did not arise out of or in the course of his employment with the Respondent.

18.It is from this decision that the Appellant seeks leave to appeal.

19.In a ‘Notice of Opposition to Appeal’ filed on 18 October 2007, the Respondent submits that no errors were made by the Arbitrator and that the decision ought be confirmed.

THE DECISION UNDER REVIEW

20.The ‘Certificate of Determination’ dated 11 July 2007 records the Arbitrator’s determination as follows:

“1.Award for the Respondent in respect of the Applicant’s claims for compensation for the Applicant’s psychological injury.

2.Award for the Respondent in respect of the Applicant’s claim for weekly payments of compensation.

3.That the Respondent pay the Applicant’s expenses under s.60 in respect of the injuries to the lumbar spine and right knee on production of accounts or receipts.

4.That the claim for lump sum compensation pursuant to s.66 in respect of the lumbar spine and right lower extremity be determined by an Approved Medical Specialist.

5.That the Respondent pay the Applicant’s costs as agreed or assessed in respect of the claims for the lumbar spine and right knee.”

LEAVE TO APPEAL

21.Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).

22.The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.

23.Leave to appeal is granted.

24.The Respondent’s ‘Notice of Opposition’ was filed on 18 October 2007. The time for filing that notice expired on 19 September 2007.

25.In detailed submissions filed on 27 September 2007, the Respondent provided an explanation for the delay. In the Respondent’s submission, “… there is no prejudice to the worker in allowing its submissions to be lodged outside the time allocated.”

26.In submissions filed on 29 October 2007, the Appellant objects to the admission “… of the late submissions by the Respondent employer on the basis that the Appellant worker has been prejudiced by the late lodgment and it also causes a grave injustice”.

27.There are no particulars as to the nature of the “grave injustice” nor indeed the “prejudice” apparently caused to the Appellant other than a complaint that the Appellant was obliged to comply “… with the strict timetable …” and that the Respondent had “… ample time …” to file and serve its submissions within the time allowed. The Appellant also submits that the Respondent failed to seek an extension of time pursuant to Rule 16.2 of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’). This submission is ill founded. Clause 16.2(11) of the 2006 Rules makes provision for the Commission to extend the time “… for making an appeal (my emphasis) …” in certain circumstances. It does not, as I read it, apply to the filing of a ‘Notice of Opposition’.

28.There are a number of various authorities dealing with the issue of extension of time. In Gallo v Dawson [1990] HCA 30 (‘Gallo’) Justice McHugh said at 480 as follows:

“The discretion to extend time is given for the sole purpose of enabling the court [or tribunal] … to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australasia Limited [1978] VR257 at p 262. This means that the discretion can only be exercised in favour of an Applicant upon proof that strict compliance with the rules would work an injustice upon the Applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time …”

29.The Respondent has provided an adequate explanation for the delay. As the Respondent

submits:

“The nature of the contest is one with far reaching consequences for the employer and the worker. The material involved is extensive and a short delay in the submission of the Respondent’s argument which will assist the determination of the matter does not unduly prejudice the worker”.

30.Having regard to the decision in Gallo to which I have referred, I am of the view that no particular prejudice or “grave injustice” is inflicted on the Appellant by the late submissions by the Respondent and accordingly, leave to file the ‘Notice of Opposition’ and subsequent submissions is extended to 18 October 2007.

ON THE PAPERS REVIEW

31.Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

32.Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard to Practice Direction No’s 1 and 6, the documents that are before me, and the detailed submissions by both parties on appeal, 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

FRESH EVIDENCE

33.The Appellant seeks leave to rely upon fresh evidence being a statement of a witness, Mr Iakopo Maumeasagisagi dated 1 August 2007 and a further statement of the Appellant dated 6 August 2007.

34.Fresh evidence on appeal is governed by Section 352(6) of the 1998 which provides as follows:

“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission”.

35.Practice Direction No. 6 sets out the processes to be followed when seeking leave of the Commission to introduce new evidence on appeal. Relevantly, it provides that:

“In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case”.

36.The Appellant has complied with the requirements of Practice Direction No. 6 relating to the  identity and service of the ‘fresh evidence’.

37.Dealing with the statement of Mr Iakopo Maumeasagisagi (‘the witness statement’), the Appellant submits that the statement could not have been obtained prior to the hearing since the Appellant had been unable to locate the witness. The Appellant submits that he had attempted through a number of means to obtain his details and eventually located him at a chance meeting on 28 July 2007.

38.The further statement by the Appellant dated 6 August 2007 merely identifies the steps he took to locate the witness.

39.The witness states as follows:

“On 1 December 2003 I was carrying a steel beam with the help of another employee. We were carrying them by placing them on our shoulders.

Mr Kerry Palavicino was also carrying the steel beams at the time. He was also carrying the steel beam on his shoulder with the help of another person. I was walking behind them.

As we were turning the corner I witnessed Kerry on the floor … He told me that he had tripped and fallen while carrying the steel beam.

I helped him up. He pointed to the area that he experienced pain being the right scapula area of the back and across to the right side of his neck and the shoulder.

I rubbed the area that he pointed to. I did this as he appeared to be in extreme pain.

The following day Kerry brought in ointment and asked me to rub it into the right scapula area of his back across to the right side of the neck and right shoulder. I did this approximately three times during the week for approximately three weeks.

While I was working at ATS I also witnessed Kerry being treated badly by the other employees. In particular, 2 employees namely Bob and Jason were calling him names and swearing at him and making racist comments towards him. This happened on a regular basis.”

40.The Appellant submits that the witness statement ought be admitted since it is “… relevant in determining that the Appellant worker’s neck injury is causally related to the incident on 1 December 2003.”

41.The Appellant further submits:

“… the witness statement should be admitted into the appeal proceedings as it also confirms that the Appellant worker was being subjected to ill treatment  by his fellow employees which also contributed to his psychological injuries … It provides crucial evidence in relation to the determination of the issues … furthermore, there is no prejudice or injustice to the Respondent Employer’s case as the statement does not seek to introduce any new issues but rather to confirm and strengthen the Appellant Worker’s assertion throughout the proceedings that the neck injury is causally related to the initial incident on 1 December 2003.”

42.The Respondent objects to the ‘fresh evidence’ sought to be relied upon by the Appellant. The Respondent makes the following submissions:

“A claim or notification of a neck injury was not made until 1 December 2005. The issue as to causation in relation to the neck injury has been a live issue between the parties from the outset.

In his statement the worker has alleged he was carrying an item with a fellow worker ‘Paul’. There was no reference to Mr Iakopo Maumeasagisagi (‘Iakopo’) who was carrying steel beams at the same time as the worker.

The worker claims in his updated statement that he told Iakopo about the injury and indeed Iakopo rubbed cream into the worker’s neck and shoulder over the neck [sic] three weeks.

In a letter dated 29 December 2005 liability with respect to the neck injury was declined because the ‘neck injury was never reported when the claim for back and knee was lodged’.

The worker in the statements admitted in the proceedings did not mention the involvement of Iakopo. He has made no attempt or provided no explanation as to why ‘Paul’ has not been identified and/or a statement obtained.

To attempt to introduce such evidence at a late state of the proceedings, is highly prejudicial to the Respondent and no satisfactory explanation has been advanced as to why it could not have been provided in its present form. Indeed, the worker could easily have identified in his statement not only Iakopo’s involvement but also the fact that the injury was reported to him and the worker’s failure (up to that time) to obtain that Iakopo’s contact details.

The evidence of Iakopo in relation to conflict in the workplace is not contradicted. Mr Butler [manager at the Respondent’s premises] accepts that there was conflict and refers to it as one might expect between ‘blue collar workers’. That evidence of Iakopo does not take the matter any further.

Injury with respect to the neck had been in dispute from the outset. In his statement the worker nominated the fellow worker ‘Paul’ who was carrying the steel beam with him. No evidence was given as to the whereabouts of Paul in the initial statement. The Arbitrator accepted the incident occurred. The Arbitrator did not accept that there was an injury at the time to the neck.

The Commission is being asked to accept the evidence of a worker some four years after the event as to the areas in which he applied massage cream to a fellow worker. Given the findings made by the Arbitrator with respect to reporting the injury to medical practitioners there is no probative value to be achieved by allowing introduction of such evidence and as a consequence the failure to allow the new evidence would not cause a substantial injustice in the circumstances of this case”.

43.I do not propose to canvass in detail at this point the Arbitrator’s findings on this issue. It is a ground of appeal raised by the Appellant and I will deal with it more fully below. In short, there was a consensus of medical opinion that the Appellant reported waking on 12 October 2005 with severe pain in his neck. Some doctors had noted that no mention was made by the Appellant of injury to his neck or right upper limb in the accident on 1 December 2003. The Arbitrator noted (para 165) that:

“It is clear from the medical evidence that although the Applicant reported pain in his right scapula region he had no neck pain and did not complain of neck pain until he sought medical treatment after waking up on 12 October 2005 with severe pain in his neck and right arm. The Applicant made no report of injury to his neck and no claim for compensation for his neck until 1 December 2005.”

44.The Arbitrator also noted the Appellant’s statement that he was carrying the beam with another person named ‘Paul’, and that after the incident he returned to his office and took some panadol. The Arbitrator also noted the Appellant’s statement to the effect that he did not enter the incident in the injury book since he could not find it at the time of the fall.

45.In his statement dated 6 August 2007, the Appellant stated as follows:

“1.On Saturday 28 July 2007 I attended at the Catholic Club located at Campbelltown.

2.While I was at the Catholic Club I ran into a former co-worker by the name of Iakopo Maumeasagisagi.

3.I approached Iakopo and during the conversation we began to discuss our time at Australian Tipping Systems. At this time, Iakopo became aware of my workers compensation proceedings.

4.I asked Iakopo whether he is willing to provide a witness statement in order that it may be used as evidence.

5.I tried to locate Iakopo previously however I was not successful as I did not have his contact details.”

46.The Appellant then set out attempts he had made through the RTA, Electoral Commission, Police and the Respondent to locate the witness.

47.The Appellant then concluded:

“(10)    … I was unsuccessful in obtaining his details prior to the Arbitration         proceedings.

(11)     I went to so much trouble to locate Iakopo as I believe his statement would            provide important evidence in relation to determining the issues in dispute.”

48.There is no indication in the Appellant’s statement as to when he first attempted to locate the witness. Moreover, as the Respondent points out, no reference was made by the Appellant in his earlier statements as to the involvement of the witness in addition to the co-worker ‘Paul’.

49.In all the circumstances, I am not satisfied that the witness statement could not have been reasonably obtained prior to the Arbitration hearing. The incident complained of occurred some two and a half years prior to the Arbitration hearing, ample time for the Appellant to seek the assistance of any potential witnesses. It is common ground that notice of the claimed injury to the neck was not given by the Appellant to the Respondent until 1 December 2005, two years after the event.

50.In my view, the ‘fresh evidence’ sought to be relied upon is of limited probative value, and is prejudicial to the Respondent in circumstances where no investigation or response is available. Its admission would cause substantial injustice to the Respondent.

51.In all the circumstances, I reject the Appellant’s application to rely upon ‘fresh evidence’ since I am not satisfied that with reasonable diligence this evidence could not have been obtained prior to the Arbitration hearing on 8 June 2007.

THE ISSUES IN DISPUTE

52.The Appellant has identified four grounds of appeal as follows:

“1.The Arbitrator erred in determining that the Respondent Worker’s psychological injury was caused by the issue of annual leave (employment benefits) for 2 April 2004.

2.The Arbitrator erred in finding that the actions of the employer were reasonable.

3.The Arbitrator failed to consider or give any weight to the evidence in Dr Meneghetti’s clinical notes of neck and shoulder complaints in June 2004.

4.The Arbitrator erred by not properly assessing the Respondent Worker’s partial incapacity for lower back and right knee injury pursuant to section 40 of the Workers Compensation Act 1987 in accordance with the case of Mitchell v Central West Health Service (1997) 14 NSWCCR 527.”

THE REVIEW PROCESS

53.The nature of a review by a Presidential Member on appeal has been succinctly summarised by Deputy President Roche in Graham Healy t/as Hunter Glass Toronto v Santarelli [2007] NSWWCCPD 188 where he said as follows:

22.The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:

“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”

23.The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:

“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”

24.This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).

25.Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).”

54.These principles must be considered in determining the matter before me.

THE SUBMISSIONS, EVIDENCE AND FINDINGS

The ‘Psychological Injury’ Findings

55.The Arbitrator dealt with the ‘psychological’ injury commencing at paragraph 29 of her ‘Statement of Reasons’. She noted as follows:

“(29)Between 2 September 2003 and 21 April 2004, the Applicant alleges he suffered a psychological injury, being a major depressive disorder, as a result of events which occurred at work.

(30)The Applicant states his psychological injury was caused by the actions of the other employees within the work shop, lack of support from Mr Butler, including a written warning and a disagreement between himself and Mr Butler on 21 April 2004 relating to a day of annual leave being allocated to the Applicant instead of the day of sick leave.

56.The Arbitrator then went on to consider in some detail a report from Crossroads Consulting dated 13 December 2004 under the hand of Linda Yeomans, Consultant Psychologist. That report was annexed to the Respondent’s Reply. Ms Yeomans interviewed a number of people in relation to the claim including the Appellant, and members of staff from the Respondent The Arbitrator quoted at length from that report.

57.At paragraphs 36 and 37, the Arbitrator set out relevant aspects of the statement of Mr Butler noting his remarks that “I do think that there was a degree of antagonism between Jason O’Brien and Bob Vukojicik on the one hand and Kerry Palavicino on the other”. 

58.The Arbitrator then continued as follows:

“(38)During February and March 2004 a number of complaints were received from customers of the Respondent concerning the quality of work carried out in the workshop supervised by the Applicant.

(39)On 30 March 2004 the Applicant was given an official warning at a meeting with Mr Butler … the Applicant felt some of the issues in the workshop were not his fault due to sabotage by employees.”

59.The Arbitrator noted that Mr Butler, in his statement dated 3 May 2007, stated that he had issued a formal written warning to the Appellant on 30 March 2004 “… regarding failing to ensure that jobs left the workshop in a satisfactory condition.”

60.The events and circumstances leading up to the Appellant’s cessation of work on 21 April 2004 were dealt with by the Arbitrator at paragraphs 41 to 50 of her ‘Statement of Reasons’. She stated as follows:

“(41)The Applicant reported a sequence of events leading to the condition which lead to him leaving the work place. He gave two different versions of his request for time off work on 2 April 2004. He said he had requested time off work on 2 April 2004 to take his son (who suffered chronic asthma) to the paediatrician and that this time was not accepted as sick leave. In a later statement (May 2007), he said he had to take his son to the hospital and he went because his wife does not speak English as well as he does.

(42)On 5 April 2004 the Applicant said he had difficulties with Jason who would not carry out work asked of him. The Applicant said Jason swore at him and hung up on him.

(43)On 6 April 2004 the Applicant saw from his pay slip that he had been given one day off as annual leave for 2 April, instead of a day as sick leave … On Wednesday 21 April 2004, the Applicant approached him [Mr Butler] to clarify why his day off on 2 April had been allocated as annual leave rather than sick leave … the Applicant said there was a heated altercation with Gary Butler, during which Mr Butler said they had not been happy with the Applicant’s performance. The Applicant believed Mr Butler suggested he should seek other work.

(44)In the report of Crossroads on page 8 it is reported that Mr Butler said that although the Applicant had told him he needed to take the day off on 2 April to take his son to the doctor they did not receive any forms in relation to any application for leave and therefore processed the day off as annual leave.

(45)In Mr Butler’s statement of 3 May 2007, para 17, he said that he recalled the Applicant speaking to him about having the day off on 2 April but said he needed only 2 or 3 hours off and Mr Butler said that would be fine. He said later the Applicant asked for the whole day off and that he told the Applicant he should take a day off on annual leave. Mr Butler stated that the Applicant did not attend work on 2 April and Mr Butler instructed Sandra Hanson to take the day out of the Applicant’s annual leave.

(46)… on 21 April Mr Butler was approached by the Applicant saying he believed the day should have been a sick leave day. When Mr Butler said the decision had been taken to give the day as annual leave Mr Butler reported the Applicant becoming emotional and expressive saying it was his right to take a sick day. Mr Butler said he was aware that the discussions took a turn for the worse and that it was unplanned even though he was probably going to have a warning discussion with the Applicant at a later date. Mr Butler agrees he told the Applicant that things had not improved and then as he needed to go elsewhere he told the Applicant that it was not the time to talk about it. Mr Butler denied he told the Applicant to find another job…

(47)The Applicant reported that immediately following the discussion with Mr Butler on 21 April he began to feel very unwell … He was given a certificate for one week off work due to stress

(48)The Applicant did not return to work after 21 April 2004 …

(49)The Applicant was diagnosed by psychologist Vincio Herrera and psychiatrist Dr Parmegiani as suffering from a major Depressive Disorder.”

61.The Arbitrator’s ‘Findings and Reasons’ commence at paragraph 109 of her ‘Statement of Reasons’. At paragraph 114 she stated:

“I accept the medical evidence of Vincio Herrera and Dr Parmegiani on behalf of the Applicant and I find that the Applicant suffered from a major depressive disorder which constitutes psychological injury.”

62.The Arbitrator then went on to consider the issues to whether the psychological injury “… arose out of or in the course of the Applicant’s employment (s.4) and whether the Applicant’s employment was a substantial contributing factor to the injury …”.

63.She stated as follows:

“(122)It is clear from the evidence that it was on 21 April 2004 that the symptoms of anxiety which later led to panic attacks and the condition of a major depressive order first occurred. This was seven months after the Applicant was employed by the Respondent … It appears from the evidence that the period of employment with the Respondent, in particular the conversation with Mr Gary Butler on 21 April, contributed substantially to the development by the Applicant of his psychological injury.

(124)The weight of the evidence and medical evidence in this case indicates the factors which led to the development of the Applicant’s psychological injury were the events from his employment, and the disagreement with Gary Butler on 21 April 2004.

(125)I therefore find that the Applicant’s psychological injury arose out of his employment and that the employment was a substantial contributing factor to that psychological injury.”

64.The Arbitrator then went on to consider the provisions of section 11A of the 1987 Act, and then referred to a number of decisions including Department of Education & Training v Jeffrey Sinclair [2005] NSWCA 465, quoting from that decision as follows (para 128):

“… It is necessary to understand section 11A to mean that the employer is not liable where, to the extent that the employment has contributed to the injury, that contribution was wholly or predominantly caused by reasonable action taken with respect to discipline.”

65.The Arbitrator continued as follows:

“(129) … The Applicant claims the factors from his employment which lead to his psychological injury were the non co-operation of staff members, the conflict within the work place, the language of those employees including the Applicant being called a wog, receiving a written warning, being unsupported by his manager Mr Gary Butler and the conversation with Mr Butler about the day of sick leave or annual leave on 21 April 2004.

(130)The issue then is whether the Applicant’s psychological injury was wholly or predominately caused by reasonable action taken or proposed to be taken by or on behalf of the Respondent.

(131)On 30 March 2004 Mr Butler issued the Applicant with a written warning letter about his work performance. This event is one that relates to performance appraisal. The issue of the day of annual leave … are events which are the provision of employment benefits to workers …

(132)Were either or both of these factors the whole or predominant cause of the Applicant’s psychological injury, and if so were the actions of the Respondent reasonable?

(133)The Applicant’s statement of May 2007 indicates the combination of factors causing the injury. The final incident was the conversation with Mr Butler on 21 April 2005 [sic – 2004].

(134)The evidence indicates that following the conversation with Mr Butler on 21 April 2004, the Applicant developed severe symptoms which prevented him from returning to work. The Applicant does not state he experienced any real symptoms prior to this time and he had no time off work prior to 21 April 2004 and he sought no medical treatment in relation to anxiety or stress-related symptoms prior to 21 April 2004.

(135)The report of Dr Lyn Moore [psychiatrist qualified by the Respondent] says that the final and major factor in the development of the illness was the conversation with Mr Butler on 21 April. She also says the issue of the warning letter about the Applicant’s performance at work increased his anxiety.

(136)While the Applicant states [there] are other factors within the work place which contributed to his psychological injury he continued to remain in his workplace without developing symptoms and without taking any time off work until 21 April 2004. While his evidence indicates he had some conflict with employees, it is also clear he continued to work with those employees and complete jobs in the work shop … He reports a discussion with Bob [Vukojicik] concerning the work which had been carried out in the work shop. While he may have had some conflict with the employees, he clearly also worked with them.

(137)Taking into account all of the medical evidence, I find that the issue of the day of annual leave for the Applicant’s day off work on 2 April 2004 and the subsequent discussion with Mr Butler about the sick leave on 21 April 2004 were events which were a predominant cause of the Applicant’s psychological injury.

(138)I find that the other factors mentioned including the warning letter were lesser and more minor causes of the injury.”

66.The Arbitrator then went on to consider the issue as to whether the Respondent’s actions could be regarded as “reasonable” within the meaning of section 11A of the 1987 Act. The Arbitrator ultimately concluded as follows:

“(146)I find this was reasonable action taken by the Respondent in the circumstances where the Applicant had given no medical certificate or reason why the day should be a day of sick leave, and the Applicant himself was not sick …

(148)The Applicant does not say in his evidence that he obtained any medical certificate or report from a hospital or doctor indicating his son was required to attend the doctor or hospital on 2 April 2004.

(152)I therefore find the actions of Mr Butler on behalf of the Respondent in allocating a day of annual leave for the Applicant’s day off work on 2 April 2004 and his actions on 21 April 2004 and the discussions with the Applicant relating to the day of annual leave were reasonable, in all the circumstances.

(153)As those actions were the whole or a predominant cause of the Applicant’s psychological injury, and those actions are reasonable, the Applicant is not entitled to compensation in respect of his psychological injury.”

67.The Appellant submits that the Arbitrator erred “… in determining that the Respondent worker’s psychological injury was caused by the issue of annual leave (employment benefits) for 2 April 2004.” In the Appellant’s submission, “… the Arbitrator found contrary to the evidence and placed two narrow a focus on the conversation between Mr Butler and Mr Palavicino on 21 April 2004 … There were numerous other incidents that caused and contributed to the Respondent worker’s psychological injuries that the Arbitrator should have carefully considered”.

68.The Appellant then outlines a number of “incidents” which it is alleged the Arbitrator did not consider in her ‘Statement of Reasons’. In essence, they relate to difficulties with two other employees, namely Bob Vukojicik and Jason O’Brien. The Appellant also submits that the Arbitrator did not have due regard to the medical reports from Dr Parmegiani and Dr Herrera stating that: “The Arbitrator did not take into account all events relevant to causation and the contribution to the Appellant worker’s psychological injury. The Appellant quotes from paragraph 117 of the Arbitrator’s ‘Statement of Reasons’ where she said as follows:

“It is the Applicant’s evidence that his psychological injury was caused by events at his workplace and that the ultimate event which brought on his first symptoms was the conversation with Mr Gary Butler which took place on 21 April 2004. There is no evidence of any other major factors causing the injury”.

69.In the Appellant’s submission, “… the evidence clearly outlines that there were other incidents during the course of his employment which did cause [the Appellant] to suffer from psychological injury. The incident on 21 April 2004 was not the predominant cause of his psychological injuries.”

70.With all due respect to the Appellant, his interpretation of the wording of paragraph 117 is I think misconceived. Taken in context, the Arbitrator was discussing whether the Appellant’s psychological injury arose out of or in the course of his employment. In other words, there was no evidence that other “factors” outside the workplace were causative of the injury.

71.The Appellant submits that “… the Arbitrator should have taken into account all the events and incidents that contributed to and caused the Appellant worker’s psychological injuries … by not taking into consideration all the events and incidents that relate to the causation of the Appellant worker’s psychological injuries, the Arbitrator has found contrary to the evidence”. I disagree. It is clear from the Arbitrator’s ‘Statement of Reasons’ extracts of which are repeated above, that she took into consideration all the evidence, from both parties, both lay and medical, in assessing the Appellant’s claimed psychological injury. The Arbitrator’s task, as she correctly noted, was to determine whether the employment contribution was “… wholly or predominately caused by reasonable action taken with respect to discipline”.

72.The Arbitrator acknowledged that there were other events which the Appellant claimed caused him stress and anxiety but as the Arbitrator rightly pointed out, he had no time off prior to 21 April 2004 and sought no medical treatment in relation to any anxiety or stress related symptoms prior to 21 April 2004.

73.In my view, it was thus open to the Arbitrator to conclude that the predominant cause of the Appellant’s psychological condition were the circumstances surrounding the day of leave taken on 2 April 2004 and the discussions with Mr Butler on 21 April 2004.

74.This was an issue of fact to be determined by the Arbitrator on the evidence available. It is now well established that where there is evidence on which a primary finding of fact can be based, and that evidence is accepted, it is not open to challenge, except in limited circumstances. (See Crown Glass & Aluminium Pty Limited v Ibrahim [2005] NSWCA 195).

75.The Respondent in its submissions has identified in some detail the particular paragraphs of the Arbitrator’s ‘Statement of Reasons’ where she dealt with the various “other incidents” allegedly contributing to the Appellant’s psychological condition. For example, the Appellant’s complaints as to difficulties he experienced in the work place with Mr Vukojcick and Mr O’Brien were considered by the Arbitrator at paragraphs 32 to 37 inclusive of her ‘Statement of Reasons.”

76.In short, I accept the Respondent’s submission that:

“The Arbitrator in her decision traversed the complete history of the worker’s allegations in relation to conflict in the work place, his application for leave and the warning letter.”

77.There is nothing in the Appellant’s submissions to demonstrate that the Arbitrator erred in her findings on this issue, and accordingly this ground of appeal must fail.

The Section 11A Issue and ‘Reasonableness’

78.The Appellant submits that “… the Arbitrator erred in finding that the actions of the employer were reasonable”.

79.This issue has to some extent been canvassed in the preceding paragraphs. The thrust of the Appellant’s submissions on this issue are to the effect that the Respondent’s actions “… during the conversation that took place on 21 April 2004 were unreasonable and that the employer should not have discussed matters relating to ‘work performance’ during a conversation regarding annual leave, particularly when it is quite clear that the Appellant worker has become emotional and very upset”.

80.In short, the Appellant submits that “… the actions of Mr Butler of bringing up performance issues during discussions about annual leave (employment benefits) are highly unreasonable.”

81.Again, these are issues of fact. There was no real dispute between the parties that the conversation between Mr Butler and the Appellant which took place on 21 April 2004 was heated, but there was conflicting evidence as to the precise contents of that conversation.

82.There is nothing in section 11A(1) of the 1987 Act that suggests that action taken by an employer with respect to, for example, transfer, demotion, performance appraisal or discipline should in some way be dealt with singly rather than concurrently. It is true that the manner in which a decision is communicated can be unreasonable. (See Doyle v Manly Pacific International Hotel (1998) 17 NSWCCR 47). However, in the present case, there is no evidence to suggest that Mr Butler’s actions were unreasonable given the approach taken by the Appellant.

83.The determination as to whether an employer’s actions are reasonable is purely a question of fact, not law. (See Commissioner of Police v Minahan [2003] NSWCA 239).

84.The Appellant’s submissions are merely a reflection of the Appellant’s perception that Mr Butler’s actions were “unreasonable”. To suggest that discussions regarding work performance should not have occurred because the Appellant “… was extremely emotional and upset …” is somewhat disingenuous. As the Respondent points out in its submissions:

“… the Applicant took time from work, made an application for sick leave which was refused. The day was allocated as an annual leave day. There was no further action taken by the employer other than a reduction in the leave available to the worker as a consequence of his not being at work on a particular day.

There was no suggestion the worker was threatened with termination or cessation of his employment or other impact upon any employment benefits. He was paid for the day on which he was off work.

It is the worker’s own reaction to this reasonable action taken by the employer which resulted in his psychological decompensation: this was a clear finding made by the Arbitrator”.

85.As to the Appellant’s assertion that Mr Butler should have had more regard to his “emotional reaction,” as the Respondent rightly points out, “… if the worker has decompensated, the injury has occurred and any actions which might have occurred after that point become irrelevant”.

86.In summary then, I am not persuaded that the Appellant has demonstrated any error on the part of the Arbitrator in her findings on this issue.

The Neck Injury and Dr Meneghetti's Notes

87.Throughout its submissions, the Appellant maintains that the Arbitrator erred in her finding that any injury to the Appellant’s neck did not arise out of or in the course of his employment.

88.The Arbitrator gave detailed reasons for her findings on this issue contained at paragraphs 165 to 169 inclusive.

89.She made the following relevant observations:

“(165)It is clear from the medical evidence that although the Applicant reported pain in his right scapula region he had no neck pain and did not complain of neck pain until he sought medical treatment after waking up on 12 October 2005 with severe pain in his neck and right arm. The Applicant made no report of injuries to his neck and no claim for compensation for his neck until 1 December 2005.

(166)Dr Endrey-Walder [qualified by the Appellant] reviewed his previous reports and noted there was no mention by the Applicant of the injury to his neck or right upper limb in the work related accident of 1 December 2003 …

(167)Dr Teychenne and Dr Endrey-Walder said that the fall on 1 December 2003 could have caused the neck problem. They do not explain why the Applicant would have had no symptoms in his neck following the fall for a period of almost two years or how the mechanism of the fall onto the Applicant’s right knee could have caused the pathology in the disc at C6/C7, resulting in no symptoms, which then spontaneously appear, (with no apparent cause) almost two years later.

(168)… Dr Wilding [qualified by the Respondent] said he did not consider that the neck symptoms were related to the injuries sustained on 1 December 2003. His reason was that the Applicant did not experience any neck pain or pain radiating down his right arm following that injury and he did not consider that the development of the cervical disc prolapse two years after the work incident could be related to that work incident.

(169)I prefer the evidence of Dr Wilding and I find that the injury to the Applicant’s neck, being the cervical disc lesion at C6/7 did not arise out of or in the course of the Applicant’s employment and the Applicant’s employment was not a substantial contributing factor to that injury. The Applicant is therefore not entitled to compensation in respect of the neck injury.”

90.The Appellant submits that the Arbitrator “… did not consider and did not give any weight to the clinical notes of the Appellant worker’s treating doctor, Dr Meneghetti.”

91.The Appellant makes the following submissions.

“The clinical notes of Dr Meneghetti outline that the Appellant worker complained of right scapula pain and neck pain in June 2004. The evidence contained in the clinical notes corroborates the right scapula injury noted by Professor Dan and is consistent with the manner in which the 70 kg steel beam was carried.”

92.In the Appellant’s submission, “… once the clinical notes of Dr Meneghetti are considered … it is clear that the Appellant worker complained of right scapula pain and neck pain in June 2004 … thereby allowing the conclusion to be made that the injury to the Appellant worker’s neck is clearly related to and caused by the incident on 1 December 2003.”

93.In paragraph 12, the Arbitrator outlined the documentary evidence before her. No reference is made to the clinical notes of Dr Meneghetti.

94.The Respondent concedes that “… it does not appear that the Arbitrator has listed the clinical notes as having been admitted before the Commission …”

95.The clinical notes appear to have been the subject of an Application to Admit Late Documents in matter No. 2251-07 and were filed on or about 20 April 2007.

96.The first page of those notes is difficult to decipher since the dates appear to have been obliterated. An entry apparently on the 6 June 2004 appears to refer to “back and knee injury”. There is reference to “his pain in lower back are better” and then there is a further reference to “head pressure, shoulder pains, lower back pain …”

97.An entry on what appears to be 12 June 2004 reads as follows: “Lower back pain – he did not have this pain before …”

98.An entry apparently on 16 June 2004 again referring to “back and knee injury” notes the following:

“His pain in lower back are better … he saw cardiologist … head pressure, shoulder pains, lower back pain … pain between blades. Nightmares …”

99.An entry that appears to be on 20 June 2004 again refers to “back and knee injury” and the following notes are made:

“He is improving. Trying working activities – finds difficult to get a new job … the head feels like big and pressure on [in?] shoulder like someone is pushing him down in the shoulders – pain between blades and neck”.

100.No further reference to the neck is contained in the notes. There are numerous references to back pain throughout 2005. An entry on 18 October 2005 is difficult to read but appears to be as follows:

“Over last Friday sciatic pain – Sat and Sun in bed.”

101.An entry on 20 October 2005 reads as follows:

“He had the steel beam on the r shoulder. Now severe pain in r shoulder. Attended hospital. Numbness in r hand and fingers – ref to cervical spine CT Scan …(back case).

102.On 24 October 2005 Dr Meneghetti appears to have referred the Appellant to Professor Noel Dan for treatment. Thereafter, there is reference in the notes to pain in the C7 area.

103.It is not clear from the Arbitrator’s ‘Statement of Reasons’ whether or not she even considered these notes. They were clearly filed in accordance with the Rules. Nonetheless, having considered those notes, they do not in my view assist the Appellant in any way. The only reference to the neck is “pain between the blades and neck”. That is not a reference to pain in the neck as submitted by the Appellant.

104.In short, the Appellant’s submission that the undoubted neck injury “… is clearly related to and caused by the incident on 1 December 2003” is simply not born out by the clinical notes of Dr Meneghetti.

105.The Arbitrator noted the apparent deficiencies in the Appellant’s medical case, in particular, the failure by the medical practitioners who opined that the fall on 1 December 2003 could have caused the neck injury to explain the basis for their opinion.

106.The Appellant faced a difficult evidentiary task in persuading the Arbitrator that any symptoms in his neck which, on the totality of the evidence, appear to have emerged in October 2005, could have resulted from a fall onto his knee in December 2003. Dr Meneghetti’s notes simply do not add any support to this evidentiary burden.

107.The Arbitrator was entitled to accept the opinion of Dr Wilding in all of the circumstances of this particular aspect of the Appellant’s claim, and I see no error in her determination on this issue.

The Partial Incapacity Issue

108.The Appellant submits that:

“The Arbitrator erred by not properly assessing the Appellant worker’s partial incapacity for lower back and right knee injury pursuant to s.40 of [the 1987 Act] in accordance with … Mitchell v Central West Health Service (1997) 14 NSWCCR 527.”

109.I do not propose to canvass the Appellant’s lengthy submissions on this issue or the authorities to which he has referred.

110.I concur with the Respondent’s submissions that this ground of appeal is “misguided”.

111.The Arbitrator dealt with this issue at paragraphs 154 to 164 inclusive of her ‘Statement of Reasons’. The Arbitrator ultimately accepted that, notwithstanding the lack of notification of the injury nor indeed of medical attention at that time, that the Appellant “… fell at work on 1 December 2003 as described”.

112.The Arbitrator dealt with the question of incapacity at paragraphs 170 to 180 inclusive. The Arbitrator made the following relevant observations:

“(173)The Applicant had no time off work and did not seek medical treatment for his lumbar spine or right knee until May 2004, after he had ceased work. He had no radiological investigations of his lumbar spine until September 2004, almost 12 months after the injury. He had ceased work on 21 April 2004.

(174)Dr Endrey-Walder … stated that from the physical point of view he would expect the Applicant to be able to cope with a purely managerial, mainly office related work activity …

(175)Dr Meneghetti … says that in May 2004, the Applicant started work as a truck driver and resigned from that job after having a panic attack. There is no evidence he was unable to work due to the back injury or knee injury.

(177)Dr Rowe said there was no evidence of any pathology that would prevent the Applicant’s return to fulltime employment and that from an orthopaedic point of view the Applicant was fit for his pre-injury duties or any other activity.

(178)Dr Endrey-Walder in his report dated 11 October 2005 said there was no evidence of radiculopothy and no evidence of sciatica in the Applicant at that time. He found the only abnormality of the right knee was grating and clicking.

(179)After 12 October 2005 it is clear that the Applicant suffered an incapacity for work as a result of his neck injury, and also at various times as a result of his psychological injury. I have found no compensation is payable in respect of these injuries.

(180)The Applicant claims weekly compensation … from 19 January 2005. I find the injuries to the lumbar spine and right knee did not result in any incapacity for work, therefore no weekly compensation is payable”

113.Given the Arbitrator’s findings on the issue of incapacity, it was neither necessary nor appropriate for her to assess, as the Appellant submits, “… his incapacity to earn by applying the test as outlined in Mitchell’s case”.

114.Accordingly, no error by the Arbitrator has been demonstrated.

CONCLUSION

115.The Appellant has failed to demonstrate any error by the Arbitrator in her determination of the issues the subject of appeal. Most of the Appellant’s submissions focus upon the Appellant’s own view as to the findings he considers the Arbitrator ought to have made. However, mere disagreement with the outcome of proceedings is not a proper basis for appeal. As Deputy President Fleming said in Rania Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34:

“Where the parties are accorded procedural fairness and the Arbitrator has taken the relevant factors into account and the discretion has been exercised fairly and lawfully, it is not appropriate, on review by a Presidential Member, to interfere with the Arbitrator’s decision”.

116.The Arbitrator’s ‘Statement of Reasons’ was thorough and detailed, although I accept that she does not appear to have made specific reference to the notes of Dr Meneghetti in her determination. Review of those notes does not assist the Appellant’s claim.

117.In all the circumstances, I am not persuaded that any errors have been made by the Arbitrator to justify any interference in her determination.

DECISION

118.The decision of the Arbitrator dated 11 July 2007 is confirmed.

COSTS

119.I make no order as to costs of the appeal.

Deborah Moore

Acting Deputy President

12 December 2007

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE