Popal v Myer Holdings Pty Ltd - [2020] NSWWCCPD 32

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Popal v Myer Holdings Pty Ltd [2020] NSWWCCPD 32
APPELLANT:	Minah Popal
RESPONDENT:	Myer Holdings Pty Ltd
INSURER:	Self-insured
FILE NUMBER:	A1-3779/19
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	12 November 2019
DATE OF APPEAL DECISION:	27 May 2020
SUBJECT MATTER OF DECISION:	Section 32A(1) of the Workers Compensation Act 1987; Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55; the obligation to give reasons
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr R Hanrahan, counsel
Slater and Gordon Lawyers
Respondent:
Mr Andrew Parker, counsel
Bartier Perry Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 12 November 2019 is confirmed.

INTRODUCTION AND BACKGROUND

Minah Popal (the appellant) was employed by Myer Holdings Pty Ltd (the respondent) from about 2007. She worked in cosmetics. As at 2014 her employment was part-time, 24 hours per week, which she combined with attendance at a Bachelor of Education (Primary) course at the University of Western Sydney. She was employed at the respondent’s Parramatta store.[1]
[1] Appellant’s statement 8/11/17, [11]–[16], Application to Resolve a Dispute (ARD), p 2.
On 7 July 2014 the appellant, in the course of her employment, witnessed an assault in which the victim was stabbed to death.[2]
[2] Appellant’s statement [16]–[18], ARD, pp 2–3, Newspaper report, ARD, p 157.
The appellant suffered a psychological injury and was diagnosed with Post-Traumatic Stress Disorder. She was off work and paid compensation until 10 January 2015. She has not subsequently been in paid employment. The respondent terminated her employment in 2015, apparently on the basis she abandoned her employment. [3]
[3] Popal v Myer Holdings Pty Ltd [2019] NSWWCC 363 (Reasons), [71].
The current proceedings claimed weekly compensation on a continuing basis, medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), and lump sum compensation in respect of 24 per cent permanent impairment (primary psychological injury). An arbitration hearing was held on 24 October 2019. Mr Hanrahan appeared for the appellant and Mr Saul for the respondent. There was no oral evidence. The matter proceeded on the written material, counsel addressed and the Arbitrator reserved her decision.
The Certificate of Determination issued on 12 November 2019 recorded:
“1. The respondent is to pay the [appellant] weekly compensation under s 37 of the Workers Compensation Act 1987 as follows:
(a) $471.50 per week from 11 January 2015 to 20 January 2015, and
(b) thereafter, award for the respondent on the claim for weekly compensation.
2. The respondent is to pay the [appellant’s] s 60 expenses.
3. I remit the matter to the Registrar for referral to an Approved Medical Specialist to assess the [appellant’s] permanent impairment as a result of a psychological injury suffered on 7 July 2014.”
This appeal is brought against the limited orders for weekly payments in paragraph [1] of the Certificate of Determination.

ON THE PAPERS

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

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, 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 Raulston v Toll Pty Ltd,[4] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[5] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[6]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[7]
[4] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[5] (1966) 39 ALJR 505 (Whitely Muir), 506.
[6] [1996] HCA 140; 140 ALR 227.
[7] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[8] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[9]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[10]
[8] [2017] NSWWCCPD 5, [67].
[9] [2001] FCA 1833, [28].
[10] Raulston, [20].
In Northern NSW Local Health Network v Heggie[11] 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”.[12]
[11] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[12] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[13] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[14]
[13] [2020] NSWCA 54 (Hill).
[14] Hill, [20].

THE ARBITRATOR’S REASONS

The Arbitrator briefly described the issues and background. She recited various agreements between the parties going to earnings, periods of payments and the like, which were relevant to the calculation of any weekly entitlement. She noted that, in compliance with cl 44 of the Workers Compensation Regulation 2016, the respondent relied on the report of Dr S Roberts and not on the report of Dr JA Roberts.[15]
[15] Reasons, [1]–[8].
The Arbitrator summarised the evidence in the appellant’s statements dated 8 November 2017 and 9 September 2019. This included reference to a business, MP Maquillage, which the appellant set up in about April 2014. She said it provided “quality makeup service for bridal, formal and photo shoot events”. She said her psychologist had recommended that she “continue doing it”. In her second statement, the appellant said she “continued to try to operate her business”. She said she had opened an Instagram account as “GlambyMinah”, on which she “posted photographs of herself wearing makeup”.[16]
[16] Reasons, [21]–[23].
The Arbitrator referred to material from the appellant’s treating practitioners. This included reference to a consulting psychologist, Soraya Motala in March and May 2014 (that is, before the incident on 7 July 2014). The Arbitrator referred to notes from a psychologist, Ms Rangganadhan, regarding a consultation on 19 July 2014. These referred to “anxiety at night since she was a child” and “panic attacks”. On the history these ceased “about 1 month prior to witnessing the stabbing”.[17]
[17] Reasons, [26]–[27].
The Arbitrator referred to a report from Dr Jovanova, psychiatrist, to the general practitioner Dr Wang, dated 1 December 2014. In this the appellant denied psychiatric symptoms before the stabbing incident. Dr Jovanova diagnosed PTSD. The Arbitrator referred to a report from a treating psychologist, Ms Holley, dated 29 March 2016. The history included reference to a worsening of symptoms following a shooting outside the Police Centre at Parramatta in October 2015. It also referred to the appellant feeling “unsupported by her employer” and to the respondent’s attitude being “hostile and punitive”. Ms Holley said the appellant “met the criteria for the diagnosis of PTSD and remained unable to return to full-time work”. The Arbitrator described notes from Pacific Medical Centre which spanned a period from 14 January 2015 to 23 July 2019, with “reasonably frequent attendances”. She said the only references to the injury in these were on 1 February 2016 and 15 June 2016. At the last of these a doctor noted that payment for psychological sessions had ceased and counselling needed to be arranged under Medicare.[18]
[18] Reasons, [30]–[36].
The Arbitrator referred in detail to the reports of Dr Allnutt. He was a psychiatrist qualified by the appellant’s solicitors and had furnished five reports. On 27 February 2016, he regarded the appellant as “totally unfit for her pre-injury employment” and manifesting “a constellation of symptoms consistent with chronic PTSD”. He assessed 15 per cent permanent impairment. In a report dated 18 July 2016 he reassessed this at 24 per cent. When reporting on 19 February 2019, Dr Allnutt referred to other medical reports, including that of Dr S Roberts dealing with an investigation report. He said the investigation material did not cause him to alter his opinion. He said caution should be exercised in the weight and inference attached to such material, in the absence of clinical interview. He said Dr Roberts had not had an opportunity to re-interview the appellant to “seek clarification, particularly with regard to her underlying emotions, behaviour and motives relevant to her Facebook account”. He said the content of the Facebook posts did not “provide adequate basis to reject a diagnosis of PTSD”, and in fact her account “supports the diagnosis”.[19]
[19] Reasons, [37]–[47].
The Arbitrator summarised, in detail, the contents of the multiple medical certificates.[20] She referred to investigation reports from Quantumcorp relating to online investigations. A post on 28 July 2015 suggested that Instagram users follow MP Maquillage, which offered makeup and hair services. There was reference to the appellant being in the process of opening a YouTube channel. A post on 8 August 2016 said the appellant was not taking makeup bookings until the end of the year as she was working on a major project, however, confirmed bookings would go ahead. A further online investigation report dated 28 February 2017 showed the appellant maintained business Facebook, Instagram, YouTube and Google+ profiles in the name GlambyMinah, where she advertised herself as an “experienced makeup artist”. The most recent posts in that report were dated February 2017. The Arbitrator said that a surveillance report dated 22 November 2016 had little probative value.[21]
[20] Reasons, [48]–[53].
[21] Reasons, [54]–[56].
The Arbitrator summarised and quoted from the reports of Dr S Roberts in some detail. In his initial report dated 21 November 2016, he recorded a history of no previous psychiatric symptoms before the stabbing incident. He diagnosed Post-Traumatic Stress Disorder “consequent upon the circumstances to which she was exposed at work”. He thought her unfit for employment and in need of specialist treatment.[22]
[22] Reasons, [57]–[59].
Dr Roberts reported on 20 January 2017 after reviewing the material in the factual reports and some general practitioner notes. He noted a psychological diagnosis of “mixed anxiety and depression” had been made before the stabbing incident, and the history of childhood anxiety. The doctor said the inconsistencies called into question the veracity of the appellant’s account in its entirety. The doctor said the level of functioning detailed in the Quantumcorp report “indicates that she has recovered to such an extent that the condition is no longer producing impairment”. He described the appellant as having “fully recovered from any psychiatric condition that may have arisen”.[23] In a further report dated 9 October 2019, Dr Roberts regarded the material in the second of the online reports as “incompatible with a debilitating psychiatric condition”. He noted Dr Allnutt’s view of the investigation material and said that Dr Allnutt had “declined to engage with the material”. The doctor referred to the material produced by the appellant’s general practitioners. He said “[t]he extent of the contradictions has been reinforced by the additional material and renders [the appellant’s] account psychiatrically unreliable”. Dr Roberts said “the prospect that she is suffering any diagnosis is called into question”.[24]
[23] Reasons, [60]–[63].
[24] Reasons, [64]–[69].
The Arbitrator briefly summarised the submissions of counsel, which she described as “concise”. Relevant to incapacity, Mr Hanrahan submitted the appellant “either had no current work capacity or only a modest ability to earn in the real world”. He submitted a conclusion on capacity should not be formed on the basis of the social media posts. Dr Allnutt’s opinion was that the appellant had not improved sufficiently to return to work.[25]
[25] Reasons, [80]–[81].
The Arbitrator said Mr Saul had submitted that there was no evidence from a treating practitioner after July 2015. The Quantumcorp report showed the appellant was operating a makeup business. The only evidence of her psychiatric state came from Dr Allnutt. Mr Saul submitted the Arbitrator should be cautious about accepting the appellant’s evidence. He submitted the appellant had significant earning capacity, irrespective of whether she was earning income. He submitted the appellant’s pre-injury average weekly earnings were low. There was a wide range of duties for which she was fit. The definition of ‘suitable employment’ in s 32A required the Arbitrator to disregard whether suitable employment was actually available. Mr Saul submitted the appellant had the capacity to earn what she did in her pre-injury employment, there should be no award of weekly compensation.[26]
[26] Reasons, [82]–[84], [86].
The Arbitrator referred to Mr Hanrahan’s submission in reply, “the social media was an advertisement and two dimensional and not reflective of the real world”. The Arbitrator noted both counsel agreed there was now no discretion in the weekly payments provisions to take account of the appellant’s pregnancies and childcare obligations.[27]
[27] Reasons, [88]–[90].
The Arbitrator identified the appellant’s evidence as “unsatisfactory with respect to a number of important issues”. She failed to disclose earlier psychological complaints, including a history of significant anxiety recorded by Ms Rangganadhan. In her second statement, she said her employment was terminated by the respondent on 21 February 2015 without explanation. It was conceded by the appellant’s counsel that she married on 14 February 2015 and went to Thailand for her honeymoon. The marriage was not mentioned in her statement. Documents suggested she was terminated “on the basis of abandonment because she went overseas without telling Myer”. The Arbitrator said these “significant omissions mean that I have difficulty accepting her evidence when it is not supported by contemporaneous documents”.[28]
[28] Reasons, [91]–[94].
The Arbitrator referred to evidence from the appellant that she “wanted to return to work in January 2015 and was assessed as fit for that reason”. Dr Wang certified the appellant fit for pre-injury duties from 20 January 2015 and again on 27 March 2015. The Arbitrator said she was satisfied the appellant was “fit for suitable employment since 20 January 2015”. The Arbitrator said Dr Wang’s evidence was “the last evidence from a treating medical practitioner with full history of the injury and [the appellant’s] condition”. She noted the appellant’s evidence that she performed makeup because she was advised to by Ms Holley, as it made her (the appellant) happy. She noted it was conceded by the appellant’s counsel that there was no evidence from Ms Holley about this.[29]
[29] Reasons, [92], [96]–[99].
The Arbitrator observed that the appellant did not argue, and it was not pleaded, that there was any relationship between the condition of trigeminal neuralgia (from which she suffered) and the psychological injury.[30]
[30] Reasons, [102].
The Arbitrator referred to the medical issue between Dr Allnutt and Dr S Roberts. She said Dr Allnutt accepted the appellant’s account that her posts were an attempt to assist her recovery. He did not engage with the contents of the posts. The Arbitrator said that Dr Roberts, on the other hand, “reviewed the form and content of the posts and considered the concentration required to maintain a profile on several social media profiles and to undertake the activities depicted”. Dr Roberts initially diagnosed PTSD, but then said that diagnosis was “undermined by inconsistencies and contradictions”. The Arbitrator said that Dr Roberts also considered the notes from Pacific Medical Centre. The appellant saw those doctors for general medical issues and only mentioned her psychological injury on two occasions.[31] The Arbitrator concluded:
“106. I prefer the evidence of Dr Roberts, who has engaged with the evidence, to that of Dr Allnutt who has relied primarily on [the appellant’s] statement. Her social media activity shows that she had a significant capacity for work.
107. As a part time worker, [the appellant’s] wages were not high. Counsel did not address on the amount which it would be appropriate to award, other than Mr Saul’s submission that her capacity was substantial. I am satisfied that she was fit for employment from January 2015 and that she would have been able to earn an amount equivalent to her pre-injury earnings in suitable employment.”
[31] Reasons, [103]–[106].

The Arbitrator made a weekly award at $471.50 per week from 11 January 2015 to 20 January 2015, with an award in the respondent’s favour on the weekly claim thereafter.[32]
[32] Reasons, [108].
The Arbitrator then dealt with the claims in respect of medical expenses and lump sum compensation in a fashion which is not challenged on this appeal.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a) The Arbitrator erred in law by finding that the worker had an ability ‘to earn an amount equivalent to her pre-injury earnings in suitable employment’ without determining the nature of such employment, having regard to the factors listed in s 32A(1)(a)(i) and (ii). (Ground No. 1)
(b)     The Arbitrator erred in fact by asserting that ‘counsel did not address on the amount which it would be appropriate to award, other than Mr Saul’s submission’ when counsel for the worker did in fact address that topic in submissions. (Ground No. 2)
(c)     The Arbitrator erred in fact by asserting that the worker’s ‘social media activity shows that she had a significant capacity for work’ without providing sufficient reasons to demonstrate the nature and significance of that capacity, in the circumstances of the case. (Ground No. 3)
(d)     The Arbitrator took into account irrelevant considerations, with respect to the worker’s marital status, or failed to provide adequate reasons disclosing the relevance of such circumstances. (Ground No. 4)

LEGISLATION

The definition of ‘suitable employment’ in s 32A(1) of the 1987 Act provides:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”

GROUND NO. 2

Ground No. 2 raises a short issue regarding what submissions were made to the Arbitrator regarding the weekly entitlement. This is potentially relevant to Grounds Nos. 1 and 3; it is convenient to deal initially with Ground No. 2.
The ground relates to the passage of the reasons at [107] (quoted at [29] above) where the Arbitrator said “Counsel did not address on the amount which it would be appropriate to award, other than Mr Saul’s submission that her capacity was substantial.”

Appellant’s submissions

The appellant submits her counsel referred to her having “a modest ability to earn”. She submits the respondent’s counsel addressed on the presence of a “‘significant’ earning capacity”. She submits that the Arbitrator acknowledged this submission on the appellant’s part at [80] of the reasons,[33] but not at [107].
[33] Appellant’s submissions, [11]–[12], footnote [5].

Respondent’s submissions

The respondent submits the appellant’s submissions on appeal do not identify anywhere the appellant’s counsel addressed on quantification of any weekly entitlement. It submits the respondent submitted on quantification “in general terms”. It submits the relevance of this ground, and any impact on the result, is unclear.[34]
[34] Respondent’s submissions, [29]–[31].

Consideration

Some relevant extracts from the submissions on quantum of the weekly entitlement are set out below, as they will additionally be of relevance to other grounds. The appellant’s counsel submitted:
“So our submission is that the [appellant] is either totally incapacitated or has a modest ability to earn on a theoretical basis according to the medical evidence, and I think that’s what counts rather than any experience in the real world or any speculation about what the value of posting material on Facebook might be worth. The [appellant] said that those activities are not remunerative to her at this stage …”.[35]
[35] Transcript of arbitration hearing 24/10/19 (T) 4.24–31.
He also referred to the appellant’s evidence of her makeup activities:
“‘My psychologist recommended I do something like this ...’
That’s the makeup artist work.
‘... and continue doing it. I am extremely happy doing my makeup and other people’s makeup. This is something I’ve always been good at. I do not earn any money from it.’”[36]
[36] T 5.25–34.
The respondent’s counsel submitted on the appellant’s skills and work experience:
“Not only are they appearing on Facebook but in Instagram and ..(not transcribable 0.17.19).. and various other social network applications where the [appellant] is quite clearly advertising herself as someone who, quite properly, is experienced in makeup. After all that’s what she’d done for, as my friend said, for all those years in Myer’s at the cosmetic counter, and so she’s a very experienced makeup artist.”[37]
[37] T 10.19–27.
The respondent’s counsel referred to the need to have regard to the matters in s 32A of the 1987 Act.[38] He referred to the appellant’s youth,[39] to her certificates of incapacity and the nature of the incapacity.[40] He referred to “certificates which nonetheless allow the [appellant] to perform a wide range of duties not necessarily restricted to makeup duties, whilst makeup duties are clearly within her expertise and her professional trade”. He submitted:
“… you look at the workers age, young, education, skills and work experience. Well she’s very skilled, as I’ve submitted, in makeup and this makeup and design and makeup artistry and she’s had great experience with that either be it in a public type environment like a department store or online.”[41]
[38] T 12.5.
[39] T 12.15.
[40] T 12.18–29.
[41] T 13.7–13.
These submissions directed themselves to matters relevant to quantification having regard to matters set out in the definition in s 32A of the 1987 Act. The respondent’s counsel also specifically submitted that, if the appellant’s ability to earn exceeded the upper end of the weekly compensation equation in s 37 of the 1987 Act, she “then is not entitled to any form of weekly compensation”.[42]
[42] T 13.27–33.
The Arbitrator was clearly aware of the submissions going to weekly entitlement, on both sides of the record. They were summarised at [80]–[84] and at [86] of her reasons. It is necessary that the Arbitrator’s reasons be read as a whole.[43] What the Arbitrator said in the reasons at [107] was that counsel did not address “on the amount which it would be appropriate to award, other than Mr Saul’s submission that her capacity was substantial” (emphasis added). Both counsel made general submissions on ability to earn, the appellant that the figure would be “modest” and the respondent that the figure was substantial and would arguably yield a weekly entitlement of nil. To the extent to which what was said at [107] in any way misstated the submissions, there was no meaningful error. As the respondent correctly submits, the relevance is unclear, as is any basis to conclude this could have affected the result.
[43] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
Ground No. 2 fails.

GROUNDS NOS. 1 AND 3

These grounds raise common issues and it is appropriate to deal with them together.

Appellant’s submissions

The appellant states the Arbitrator erred in making a finding that the appellant could “earn an amount equivalent to her pre-injury earnings in suitable employment”. It is stated that she erred in finding the appellant’s “social media activity shows that she had a significant capacity for work”. It is submitted that the Arbitrator:
(a) failed to determine the nature of such suitable employment applying the factors in s 32A(1) of the 1987 Act. Specific reference is made to matters such as the appellant’s age, inexperience, skills and education;
(b) failed to identify any real jobs the appellant was able to do;[44]
(c) failed to identify how the appellant’s found ability to use a computer and apply makeup justified a finding of capacity in an economic sense.[45]
[44] Reference is made to Westpac Banking Corporation v Mani [2019] NSWWCCPD 41 (Mani) at [177] and Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) at [63]–[64].
[45] Appellant’s submissions, [5]–[10], [12]–[13].

Respondent’s submissions

The respondent submits the interaction between the Arbitrator and counsel at the hearing indicated she was well aware of ss 32A and 37. She uses terminology consistent with these provisions. Failure to specifically refer to legislation does not mean it was not considered.[46] The respondent states that the appellant did not, in her submissions at first instance, submit specifically on s 32A or suggest that provision should be referred to expressly. The respondent submits the most important factor argued by the parties was the extent to which the worker’s capacity was demonstrated by the lay and medical evidence.[47]
[46] Reference is made to Laresu Pty Ltd v Clark [2010] NSWCA 180 (Clark), [42]–[43].
[47] Respondent’s submissions, [17]–[20].
The respondent submits the Arbitrator was particularly convinced by the “social media and Quantumcorp material” and the opinion of Dr Roberts. The Arbitrator’s finding that the appellant had a “significant capacity” and “was capable of earning at least her PIAWE, noting that she was not a high earner at the time of the incident”, was all that was required of the Arbitrator. It is submitted the appellant had not suggested, in her submissions to the Arbitrator, that she had to specifically identify a job, and an associated ability to earn, by reference to s 32A. It submits that in Mani the Deputy President rejected a submission that an Arbitrator was obliged to find an actual job in applying the formula. The legislation does not require identification of a specific job.[48]
[48] Respondent’s submissions, [21]–[27].
Referring to the lay evidence of an ability to utilise social media and do makeup, the respondent submits the relevance is plain, each party had experts comment on the material and argued the material supported its position. The Arbitrator accepted the views of Dr Roberts, in the respondent’s case. It was his opinion that the lay material supported the existence of a capacity for employment. The Arbitrator’s preference for Dr Roberts over Dr Allnutt (and by inference Ms Holley) is not challenged. This ground, if accepted, would not affect the outcome.

Consideration

In Dewar Roche DP referred to the terms of s 32A, and said:
“Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.”[49]
[49] Dewar, [63].
The reference to “real jobs” in the above passage needs to be read in light of the issues being argued in Dewar. The employer had supplied light work to the worker that consisted of a job that was made up for the purpose of supplying suitable duties. The employer argued this demonstrated an ability to perform ‘suitable employment’ for the purposes of s 32A, regardless of whether an employer exists who would provide that work. The Deputy President rejected the employer’s argument on this point; work that was “not real employment or work that was potentially available in the labour market at large” was not ‘suitable employment’.[50]
[50] Dewar, [51]–[52].
The decision in Mani, to which the appellant refers, raised a similar issue. The employer in submissions at the arbitration hearing in that matter said it could provide suitable duties to the worker. The employer’s counsel said “the duties would involve retraining, guidance and coaching, the particular duties were not identified and were not the subject of medical scrutiny as to their suitability”. Wood DP said:
“The Commission has identified in a number of cases that for the purposes of s 32A of the 1987 Act, ‘suitable employment’ encompasses the identification of an actual position that the injured worker could do, rather than a ‘light duty’ job that the employer created that is not a real job.”[51]
[51] Mani, [177].
It will be observed that Dewar and Mani deal with the same point, whether a made up job, not potentially available in the labour market at large, can constitute ‘suitable employment’. That is different to the issue in the current appeal, and those decisions do not assist the appellant.
Cronje v Leighton Contractors Pty Ltd[52] involved the following factual finding by an Arbitrator:
“I find since 1 April 2014 [Mr Cronje] has no economic incapacity as a result of the injury on 15 August 2012 and thus no entitlement to ongoing weekly compensation. As I said, I do that on the basis that my task is to look at his ability to earn and I think that it is a credit to him that he’s been able to get these skills and get on with his life and start this business but I’m not persuaded at this stage despite those business losses that he has an ongoing economic incapacity.”[53]
[52] [2015] NSWWCCPD 16 (Cronje).
[53] Quoted in Cronje at [40].
Deputy President Roche observed in Cronje:
“The extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). The obligation to give reasons is related to and dependent upon the submissions presented to the judicial officer.”[54]
[54] Cronje, [45].
The submissions put to the Arbitrator, going to the availability of an award of weekly compensation and its quantum, are discussed above under Ground No. 2. The appellant submitted the activities, on social media and in connection with being a makeup artist, were “not remunerative to her at this stage”. Her counsel submitted any “ability to earn on a theoretical basis” would be “modest” (see [38] to [39] above). The respondent’s counsel addressed on the appellant’s youth, education, skills and work experience. He specifically submitted that if the appellant’s ability to earn exceeded the upper end of the weekly compensation equation in s 37 of the 1987 Act, she “then is not entitled to any form of weekly compensation”. The appellant’s submissions to the Arbitrator did not identify any specific occupation that was allegedly suitable.
The submissions of the parties, viewed as a whole, clearly raised the application of s 32A(1) of the 1987 Act. The Arbitrator referred to these submissions in her reasons. This included specific reference to the respondent’s submission that, if the ability to earn was found to exceed earnings in pre-injury employment, an award for weekly compensation would not be made.[55]
[55] Reasons, [80]–[84], [86].
The appellant worked on a part-time basis with the respondent. Her pre-injury average weekly earnings were agreed[56] and were, as the Arbitrator observed, “not high”.[57] The Arbitrator made a clear finding that the appellant was “fit for employment from January 2015 and that she would have been able to earn an amount equivalent to her pre-injury earnings in suitable employment”. This was consistent with acceptance by the Arbitrator of the respondent’s submissions to her. It was consistent with the evidence of Dr Roberts,[58] which the Arbitrator preferred to that of Dr Allnutt.[59] Dr Roberts’ view, after considering the lay material in the Quantumcorp report and the notes of treating practitioners, was that the appellant was “unimpaired with respect to her ability to work”.[60] The finding on the appellant’s fitness for work was open to the Arbitrator on the evidence (see [10] to [14] above). When the Arbitrator’s reasons are read as a whole, and when regard is had to the submissions of the parties (which were incorporated in part in the reasons) the reasons for the finding were adequate.
[56] Reasons, [6].
[57] Reasons, [107].
[58] Reply, p 662.
[59] Reasons, [106].
[60] Reply, p 662.
Grounds Nos. 1 and 3 fail.

GROUND NO. 4

Appellant’s submissions

The appellant submits the Arbitrator took irrelevant considerations into account with respect to the appellant’s marital status. The appellant submits the omissions in histories to doctors affected her credit to some extent (which finding is not challenged) but this was not relevant to the calculation of her entitlement to weekly compensation. It is submitted there were multiple references in the reasons to the appellant’s marital and maternal circumstances, without explanation of their relevance. The appellant says that in the reasons at [90] the Arbitrator said those circumstances were not taken into account. The appellant submits there is an “available inference that the worker had a binary choice between ‘employment’ or ‘marriage’.”[61]
[61] Appellant’s submissions, [15]–[18].
The appellant submits there was no evidence the appellant would suffer any penalty in her employment if she sought leave to marry or give birth. She had no obligation to explain such matters to her employer and it should not be taken into consideration.[62]
[62] Appellant’s submissions, [19]–[20].

Respondent’s submissions

The respondent submits, reading the reasons as a whole, the only use made by the Arbitrator of the evidence about the appellant’s marital status was in relation to her ceasing work. This impacted on her credit and the appellant has accepted that on appeal. It cannot be inferred the Arbitrator considered there was a choice between employment and marriage. The ground should be dismissed.[63]
[63] Respondent’s submissions, [42]–[45].

Consideration

The Arbitrator referred to the ending of the appellant’s employment with the respondent on 21 February 2015, without explanation according to the appellant’s statement. The Arbitrator referred to a concession by the appellant’s counsel that the appellant “married on 14 February 2015 and went to Thailand for her honeymoon”. The Arbitrator said the marriage was not mentioned in the appellant’s statement, and other documents suggested “her employment was terminated on the basis of abandonment because she went overseas without telling [the respondent]”.
The Arbitrator referred to what she regarded as an omission in the history in this regard, together with the omission from the appellant’s history of psychological symptoms prior to the stabbing incident. The Arbitrator described these “significant omissions” as resulting in a difficulty accepting the appellant’s evidence when it was not supported by contemporaneous documents.[64] The appellant specifically did not challenge this credit finding.[65]
[64] Reasons, [91]–[94].
[65] Appellant’s submissions, [16].
The appellant has not identified specific references by the Arbitrator to matters such as marriage or children, which are submitted to be inappropriate or to reflect error. The appellant has not identified specific factual findings that are submitted to be tainted by this alleged error. The appellant has not identified how any such alleged errors affected the result. There is no reasonable argument made by the appellant in support of this ground. It is a ground that should not have been raised and is rejected.
Ground No. 4 fails.

CONCLUSION

All of the grounds raised by the appellant have failed. The appeal fails.

A FURTHER MATTER

In the circumstances of the current matter, having regard to the issues and how the arbitral hearing was conducted, I have concluded that the Arbitrator’s finding on economic incapacity was sufficient to comply with her obligation to give reasons. That obligation depends on the circumstances of the individual case. As a general proposition it is desirable that arbitrators, in dealing with such issues, deal specifically (to the extent to which they are relevant) with the issues identified in Dewar at [62] of that decision.

DECISION

The Arbitrator’s decision dated 12 November 2019 is confirmed.

Michael Snell

DEPUTY PRESIDENT

27 May 2020