Reid v ANZ Banking Group Ltd
[2014] NSWWCCPD 65
•9 October 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Reid v ANZ Banking Group Ltd [2014] NSWWCCPD 65 | ||
| APPELLANT: | Julie Reid | ||
| RESPONDENT: | ANZ Banking Group Ltd | ||
| INSURER: | Self-insured | ||
| FILE NUMBER: | A1-843/13 | ||
| ARBITRATOR: | Mr R Stanton | ||
| DATE OF ARBITRATOR’S DECISION: | 20 June 2014 | ||
| DATE OF APPEAL DECISION: | 9 October 2014 | ||
| SUBJECT MATTER OF DECISION: | Incapacity; entitlement to weekly compensation; weight of evidence; onus of proof | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Turner Freeman Lawyers | |
| Respondent: | Sparke Helmore Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 20 June 2014 is confirmed. 2. No order as to costs. | ||
INTRODUCTION
The appellant worker suffered a personal injury in the form of an adjustment disorder with depressed mood, together with an aggravation to her pre-existing irritable bowel syndrome, as a result of stress at work with the respondent employer. The Arbitrator found that the worker was incapacitated for work from 27 April 2012 until 31 July 2012 and ordered that she be paid weekly compensation for that period.
The issue on appeal concerns the worker’s entitlement to weekly compensation beyond 31 July 2012, in circumstances where the Arbitrator was not persuaded that, beyond that date, the worker was unable to earn her pre-injury average weekly earnings.
BACKGROUND
Julie Reid, the appellant, worked for ANZ Banking Group Ltd (ANZ), the respondent, from 23 November 1994 until 26 July 2012, when her employment was terminated. Ms Reid was employed as a team senior, a permanent part-time position, initially working four days per week and then three days per week. Her duties required her to process superannuation contributions and assist the assistant managers with enquiries with business units and within the teams.
Ms Reid alleged that as a result of harassment by her superiors from January 2012 to April 2012 she suffered a psychological injury. She made a claim for weekly compensation and medical expenses on 30 May 2012.
On 26 June 2012, ANZ issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) advising that liability for the payment of weekly compensation and medical expenses was declined, amongst other reasons, on the basis that she had not been incapacitated for work (s 33 of the Workers Compensation Act 1987).
On 17 December 2012, Ms Reid lodged an Application to Resolve a Dispute (the Application) in the Commission. She sought an order for weekly compensation from 27 April 2012 to date and continuing. The alleged injury was pleaded as a psychological injury which occurred as a result of the nature and conditions of her employment from January 2012 to April 2012.
On 4 February 2013, the respondent filed a Reply to the Application. It confirmed the issues in dispute were those stated in the s 74 notice.
On 2 June 2014, a conciliation/arbitration hearing was listed before a Commission Arbitrator, following which the Arbitrator reserved his decision.
On 20 June 2014, the Arbitrator issued a Certificate of Determination and a Statement of Reasons (Reasons). The Certificate of Determination records the Arbitrator’s orders in the following terms:
“1. The Commission finds that:
(a) The applicant suffered personal injury in the form of an adjustment disorder with depressed mood together with an aggravation to her pre-existing irritable bowel syndrome as a result of her failure to cope with the psychological stresses imposed on her in the course of her employment with the respondent over a period of several months up to 24 April 2012.
(b) The employment concerned was a substantial contributing factor to this injury.
(c) The psychological injury was not wholly or predominantly caused by performance appraisal.
(d) As a result of the injury it was reasonably necessary for the applicant to obtain medical and related treatment.
(e) As a result of the injury the applicant was totally incapacitated for work from
27 April 2012 to 31 July 2012.(f) The applicant’s current weekly wage rate was $558.
2. The Commission orders that the respondent is to pay:
(a) $558 per week from 27 April 2012 to 31 July 2012 pursuant to s.36 (in its previous form).
(b) Section 60 expenses.
(c) The applicant’s costs as agreed or assessed. Certify an uplift in costs of 15 percent for both parties.
A statement is attached to this determination setting out the Commission’s reasons for the determination.”
Ms Reid has challenged the Arbitrator’s finding that she had no entitlement to weekly compensation beyond 31 July 2012.
PRELIMINARY MATTERS
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act. There is no dispute that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
ON THE PAPERS
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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THE EVIDENCE
As the only issue on appeal concerns Ms Reid’s incapacity beyond 31 July 2012, the following summary will focus on evidence relevant to that issue.
On 27 April 2012, Ms Reid attended on Dr Naomi Arunachalam, general practitioner. Dr Arunachalam issued Ms Reid with a medical certificate certifying her unfit to work until 23 May 2012 due to “recurrence of her IBS and stress and depression” (Ms Reid was diagnosed with Irritable Bowel Syndrome (IBS) in 1996).
Ms Reid again attend on Dr Arunachalam, on 21 May, 15 June and 13 July 2012 reporting psychological symptoms, exacerbation of her IBS and work related stress and harassment. Dr Arunachalam certified Ms Reid unfit to work for various periods, up to 31 July 2012. There is no other relevant medical evidence available until 2013, when Ms Reid attended on the specialist forensic psychiatrists, details of which appear below.
In a supplementary statement, dated 28 August 2013, Ms Reid states:
“…Between on or around 27 April 2012 to date and continuing I have not obtained alternate employment nor have I been able to obtain valid WorkCover medical certificates given the insurer disputed liability to account for my treaters [sic] medical assistance...
I confirm had it not been for my work related injury, I anticipated to [sic] continue working up until at least my retirement age. This continuous bullying and harassment that I endured during the course of my employment led to my current incapacity to perform work. I reiterate that as a result of my work related injury, I have not been in the right frame of mind to seek alternate employment given my concern that the incidents that occurred during my employment with ANZ would occur again which would aggravate my condition.”
On 18 September 2013, Ms Reid attended on Dr Bruce Westmore, forensic psychiatrist qualified by her solicitors. In his report, dated 8 October 2013, he records that Ms Reid said that she became a “hermit and did nothing till September [presumably 2012] when I gave myself a kick”. He added:
“She said she felt that she could not return to the workplace, but she started gardening and doing other things at home when she could. She said there were days when she could not do anything, but her symptoms are now ‘a lot better’, but she said she does not feel as well as she did before her workplace problems commenced.
…
She said ‘I have no confidence anymore’. She said, before the workplace difficulties commenced she was a confident person, who felt secure and very valued, but her self-esteem diminished. She said she became depressed, angry and upset.”
Dr Westmore diagnosed Ms Reid with “Adjustment Disorder with depressed mood (resolved)”. He found that her employment was a substantial contributing factor to the onset of the adjustment disorder. He further found that her “condition is unlikely to alter significantly in the next 12 months and it has therefore, by definition, stabilised and reached maximum medical improvement”.
Dr Westmore thought that Ms Reid was “mildly impaired” in terms of her capacity to return to the workplace. He noted that:
“[Ms Reid indicated that] with the passage of time her mental state has gradually improved and that she was a lot better at the time I examined her than she was when she originally left work. She also reports that her Irritable Bowel Syndrome has stabilised to a degree, but she said it is not as well controlled now as it had been prior to the commencement of her workplace problems.”
On 16 October 2013, Ms Reid attended on Dr Adam Martin, forensic psychiatrist qualified by ANZ. Dr Martin recorded a history that Ms Reid had felt depressed and anxious and that this lasted from April to September 2012. He added that Ms Reid told him “eventually ‘I told myself to stop wallowing’, and started to feel better”. He further recorded that Ms Reid “is sleeping well, that her appetite is normal, and that she is enjoying activities such as gardening, reading or family engagements”. She also told Dr Martin that her mood was “good” however she was not looking for work “as she is busy helping with her mother who has many illnesses”.
Dr Martin found that Ms Reid had “developed ‘Adjustment Disorder with Depressive and Anxious Symptoms’ as a result of workplace stress, which came in the form of her performance being questioned and being assertively managed around issues or productivity”.
Dr Martin concluded that the adjustment disorder had “now resolved, and there is no psychiatric reason [Ms Reid] cannot work”. He considered Ms Reid “fully fit to return to her pre-injury duties”.
THE ARBITRATOR’S REASONS FOR DECISION
The Arbitrator found that Dr Arunachalam was well placed to assess Ms Reid’s incapacity for work. The doctor certified Ms Reid as being totally incapacitated for work over the period up to 31 July 2012, which the Arbitrator accepted.
The Arbitrator concluded (at [43] of the Reasons) that there was no persuasive evidence of incapacity beyond 31 January 2012. He said:
“The difficulty I then have is that there is no persuasive evidence as to what level of incapacity the applicant suffered from as a result of her psychological injury after 31 July 2012. All I really have that is supportive of the applicant’s claim for weekly benefits after this date is:
(a) A statement from the applicant dated 28 August 2013 in which she records ‘as a result of my work related injury, I have not been in the right frame of mind to seek alternative employment given my concern that the incidents that occurred during my employment with ANZ would occur again which would aggravate my condition.’
(b) A history given to Dr Westmore that the applicant described being a ‘hermit and did nothing till September when I gave myself a kick … (and) … started gardening and doing other things at home when she could’ and that ‘she was a lot better at the time I examined her than when she originally left work.’
(c) An opinion from Dr Westmore that she remains ‘mildly impaired in terms of her capacity to return to the workplace’.”
The Arbitrator concluded (at [44] of the Reasons) that, even combined, the totality of the evidence was not sufficient to persuade him that Ms Reid was unfit to at least earn her pre-injury average weekly earnings of $558 per week after 31 July 2012. He said:
“I am left with the impression that she may have had difficulty achieving this for a time but I do not feel sufficiently persuaded on the probabilities by this evidence to be able to make factual determinations which would warrant a s 40 award for a further period.”
For these reasons, the Arbitrator made orders in favour of Ms Reid in terms of weekly compensation from 27 April 2012 to 31 July 2012 but declined to award weekly compensation beyond 31 July 2012.
GROUNDS OF APPEAL
The grounds of appeal have been so poorly drafted that to avoid any misunderstanding I will set them out in full:
(a) “Error of Law – Misconstruction of his statutory task such that he failed to perform his statutory task to determine incapacity resulting from the work-related injury and awarding an amount of compensation, and as a result erroneously applied the law.”
(b) “Error in the Exercise of the Discretion – Giving weight to irrelevant matters, and failing to give weight or sufficient weight to relevant considerations.”
As I understand Ms Reid’s submissions the two complaints are that the Arbitrator erred:
(a) by concluding that there was no persuasive evidence as to the level of incapacity Ms Reid suffered as a result of her psychological injury after 31 July 2012, and
(b) by placing too much weight on the histories given to expert witnesses and insufficient weight to Mr Reid’s evidence of her incapacity.
SUBMISSIONS
Ms Reid’s submissions
Ms Reid submits that, from about 27 April 2012, she had not obtained alternative employment nor had she been able to obtain a valid WorkCover certificate, because the insurer disputed liability to pay accounts for her treatment. She also submits that she was not in the right frame of mind to seek alternative employment given her concerns that the incidents that occurred during her employment with ANZ would occur again and would aggravate her condition.
Ms Reid submits that her evidence was consistent with the histories given to medico-legal specialists and that there was “no reason not to accept her evidence”. She also submits that there was no evidence to contradict her statement that she was not capable of seeking alternative employment. Therefore, there was evidence to support a finding that she was totally incapacitated for employment at least until the time she saw Dr Westmore on 18 September 2013. Ms Reid added that there was no evidence that she was fit for work, let alone fit for her pre-injury work, as at 31 July 2012.
In the alternative, Ms Reid submitted that if the Arbitrator had concerns regarding her capacity for employment “he had the opportunity to ask her questions at the arbitration hearing, or seek further submissions and/or evidence from the appellant”.
Ms Reid also submitted that “a tribunal of fact cannot fail to perform its function because of a lack of evidence: NSW v Moss [2000] NSWCA 133 [Moss]”.
It is further alleged that the Arbitrator gave too much weight to Ms Reid’s statement to her doctors that in or about September 2012 “she gave herself a kick” (see Dr Westmore’s report 8 October 2013). That statement was consistent with the history obtained by Dr Martin in his report of 25 October 2013 where he recorded that Ms Reid said “I told myself to stop wallowing”. It is submitted that this is not evidence that is capable of supporting an inference in respect of capacity for work. There was no available inference to support a finding that the appellant was able to go back to work as at 1 August 2012 and earn income equal to her pre-injury income.
Ms Reid further submitted:
“The relevant probative evidence, to which the Arbitrator should have given more weight in the balancing exercise of the determining of incapacity, is that of [Ms Reid] that she was unable to work in her pre-injury employment, or find alternative employment, that would yield her income, which was the equivalent of, or more than, her pre-injury employment.”
The respondent’s submissions
The decision in Moss is distinguishable from the facts of the instant matter. Unlike in Moss, Ms Reid did not adduce any objective evidence of any incapacity for work beyond 31 July 2012. Moreover, she did not seek any medical attention in respect of the alleged workplace injuries after 25 July 2012.
The Arbitrator decided the matter on the totality of the evidence. In doing so there was no requirement for him to accept the totality of Ms Reid’s evidence: Chanaa v Zarour [2011] NSWCA 199 at [86]; Secretary, Department of Family and Community Services v Victoire [2014] NSWWCCPD 44 at [28].
A worker’s subjective view of their fitness will rarely be determinative, especially in cases involving psychological injury. The requirement is to consider the whole of the evidence including the medical evidence and make an assessment based on that evidence: Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 at [38]–[39].
The Arbitrator accepted that Ms Reid suffered from an aggravation of her irritable bowel syndrome as a result of the events that occurred in the workplace. The respondent submits that there was an absence of evidence of incapacity, if any, relating to the pre-existing condition.
The appeal appears to be based upon an assumption on the part of Ms Reid that an appeal is available where the analysis of the factual matters that founded the Arbitrator’s decision was contrary to the analysis of those same facts she was prepared to accept. Where 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 by the trial judge: Branir Pty Ltd v Owston Nominees (No 2) PtyLtd [2001] FCA 1833.
The Arbitrator decided the issue of incapacity based on an assessment of the whole of the evidence presented in the proceedings. The onus of proof fell on Ms Reid: Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen v Craig [2014] NSWWCCPD 48 (Craig) at [79].
Ms Reid ought to have adduced evidence addressing matters of capacity prior to any determination. It was not a matter for the Arbitrator to adduce evidence to address incapacity for work. Ms Reid bore that onus.
DISCUSSION
It should be stated at the outset that this is an appeal under s 352 of the 1998 Act. For this appeal to succeed Ms Reid must establish that the Arbitrators decision is affected by an error of fact, law or discretion. An appeal under s 352 is no longer a review on the merits.
Ms Reid’s reliance on Moss is misplaced. Moss involved an action for damages for a year 10 high school student who suffered severe burns during a science experiment. The case involved an appeal from an award of damages in the Supreme Court. The issue on appeal, among other things, concerned a challenge to the trial Judge’s finding that the plaintiff suffered a diminution of her earning capacity by reason of the fact that she would be precluded from owning and operating a hairdressing business and would suffer loss of earnings in addition to that which she could have earned as a self-employed hair dresser. The plaintiff’s damages included a component for future economic loss made in the absence of evidence of the earnings of proprietors of hairdressing salons.
Ms Reid relies upon the statement of Heydon JA, as he then was, (Mason P and Handley JA agreeing) in Moss where his Honour said (at [87]):
“In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. Statements to the contrary such as those made in Allen v Loadsman [1975] 2 NSWLR 787 at 792 are not correct:…”
Unlike Moss, where there was no question that the plaintiff suffered a diminished earning capacity by reason of her injuries, the issue for the Arbitrator’s determination in the instant matter was whether Ms Reid had discharged the onus of establishing incapacity for work beyond 31 July 2012. The Arbitrator did not abandon that task, he reached a conclusion, albeit unfavourable to Ms Reid, and set out his reasons for doing so.
In essence, Ms Reid submitted that the Arbitrator should have accepted her uncontradicted evidence that she was not capable of seeking alternative employment, particularly as he accepted her as a witness of truth.
The Arbitrator’s task was to decide Ms Reid’s claim based on the evidence as a whole. That is what the Arbitrator did. The Arbitrator provided his reasons for his conclusion (see [25] above). He quite properly weighed Ms Reid’s evidence, including her statement that, as a result of her work related injury, she had “not been in the right frame of mind to seek alternative employment”, with the medical evidence.
The Arbitrator also took into account the history that Ms Reid gave Dr Westmore in that she described being a “hermit and did nothing until September when I gave myself a kick” and the assessment made by Dr Westmore that Ms Reid remains “mildly impaired” in terms of her capacity to return to the workplace at the time he assessed her on 8 October 2013.
Dr Westmore did not expand or explain what he meant by the expression “mildly impaired”, other than to suggest that the term “is contained in the relevant guidelines”. There was no attempt made by Ms Reid’s legal representatives to have Dr Westmore explain what that expression was intended to convey or what it meant in terms of Ms Reid’s capacity to work.
The totality of the evidence did not persuade the Arbitrator that Ms Reid was unfit to earn her pre-injury average weekly earnings of $558 per week after 31 July 2012. The Arbitrator was left with the impression that Ms Reid may have had difficulty achieving this for a time but he was not persuaded on the probabilities by this evidence to be able to make factual determinations which would warrant a s 40 award for a further period.
Ms Reid’s subjective view of her own fitness for work was not determinative of the issue the Arbitrator was required to resolve. Her evidence had to be weighed against the medical evidence, such as it was, of incapacity beyond 31 July 2012, which is what the Arbitrator did. The medical evidence was not persuasive. Dr Westmore, who saw Ms Reid for the first time more than a year after all treatment had ceased, did not directly address her capacity for work. Dr Martin, who saw her at about the same time as Dr Westmore, considered that she was fit to resume normal duties.
In the absence of any persuasive medical evidence in support of Ms Reid’s allegation of incapacity beyond 31 July 2012, it was open to the Arbitrator to conclude that Ms Reid had failed to discharge the onus of proof on the issue of incapacity beyond 31 July 2012. There was no requirement for him to accept Ms Reid’s subjective evidence as to her incapacity beyond that date.
I would add that, Ms Reid’s evidence on the question of incapacity was not persuasive. It was vague and uncertain both as to the extent and duration of her alleged incapacity. However, she appears to accept that at least by 16 October 2013, when she was assessed by Dr Martin, she was fit for work. The explanation Ms Reid provided to Dr Martin for not returning to work was because she was busy assisting her mother who had many illnesses.
Ms Reid’s submissions with respect to the Arbitrator’s assessment of the weight of evidence are contradictory and confused. Whilst Ms Reid maintained that the Arbitrator should have accepted her uncontradicted evidence of her capacity for employment, she also submits that the Arbitrator gave too much weight to the history she provided to Drs Westmore and Martin.
Questions of the weight of evidence are peculiarly within the province of the Arbitrator. In Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308, Beazley JA (as her Honour then was), Ipp and Basten JJA agreeing, held (at [144]):
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”
It cannot be said that the Arbitrator’s conclusions were so against the weight of the evidence that some error must have been involved. That is because Ms Reid failed to adduce any persuasive evidence as to her capacity or incapacity for employment beyond 31 July 2012.
Ms Reid’s submission that there was no inference available that she was able to return to work on 1 August 2012 is misguided. That is not the conclusion the Arbitrator reached. He determined that Ms Reid had failed to discharge the onus of proving that she was incapacitated beyond 31 July 2012. That finding was open on the evidence and disclosed no error.
It was incumbent on Ms Reid to adduce persuasive evidence addressing the question of her incapacity during the period of the compensation claim. She did not do that in respect of the period from 1 August 2012.
The submission that the Arbitrator had the opportunity to ask Ms Reid questions at the Arbitration hearing or to seek further submissions and/or evidence from her seems to imply that he erred in not doing so. If that is the submission I reject it. While an Arbitrator has the power to ask questions and to inform himself or herself (see s 354(2) of the 1998 Act) he or she is not bound to do so. It is for the parties to prepare and present their respective cases (Goodwin v J & P Employment and Training Services (9) Pty Ltd t/as Drake Recruitment and Training [2008] NSWWCCPD 57 at [87]–[90]).
ORDER
The Arbitrator’s determination of 20 June 2014 is confirmed.
COSTS
No order as to costs.
Judge Keating
President
9 October 2014
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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