Roads and Traffic Authority of NSW v Giggins

[2007] NSWWCCPD 157

WORKERS COMPENSATION COMMISSION

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

CITATION:Roads and Traffic Authority NSW v Giggins [2007] NSWWCCPD 157

APPELLANT:  Roads and Traffic Authority NSW

RESPONDENT:  Darryl Robert Giggins

INSURER:TMF/Allianz

FILE NUMBER:  WCC12166-06

DATE OF ARBITRATOR’S DECISION:          20 November 2006

DATE OF APPEAL DECISION:   17 July 2007

SUBJECT MATTER OF DECISION: Sections 4 and 9A Workers Compensation Act 1987; weight of evidence.

PRESIDENTIAL MEMBER:  Acting Deputy President Kevin O’Grady

HEARING:On the papers

REPRESENTATION:  Appellant:      Leitch Hasson Dent   

Respondent:   Thompson Wheelahan and Hampshire

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 20 November 2006 is confirmed.

The Appellant is to pay the Respondent’s costs of the appeal as agreed or assessed.

BACKGROUND TO THE APPEAL

1.On 15 December 2006 the Roads and Traffic Authority NSW (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 20 November 2006.

2.The Respondent to the Appeal is Darryl Robert Giggins (‘the Respondent’).

3.The Respondent, a married man whose wife and two children are dependent upon him, was born on 15 April 1967.  He is a Motor Mechanic by trade having completed his apprenticeship as a Plant Mechanic with the Appellant in the mid 1980’s.  Following the completion of his apprenticeship the Respondent worked as a Motor Mechanic with a motor dealership in South Grafton, NSW following which, in 1990, he resumed employment with the Appellant.  The Respondent performed the work of a Plant Mechanic until November 1999 at which time he was appointed Acting Workshop Supervisor (‘Supervisor’).  It appears that this appointment was intended to be a short-term temporary position however the Respondent remained in that role until approximately November 2004.  The Respondent’s duties of Supervisor were performed concurrently with his original duties and, from February 2000, with those duties of Leading Hand Plant Mechanic.  

4.It is the Respondent’s case that up until November 2004 he found performance of his duties in both roles particularly onerous.  It is asserted by the Respondent that at some time in 2003 he found that he lacked energy, that he withdrew socially, suffered disturbance in sleep patterns and became “obsessional” in his approach to his work duties.  That state of affairs continued and in 2004 he began suffering from insomnia.

5.It appears that the Respondent resumed his position as Supervisor between 20 June 2005 and 12 August 2005.  During that period the demands of his position were lessened given that he had the assistance of what was described as an Acting Team Leader.  Notwithstanding the changed circumstances of his employment it appears that the earlier mentioned symptoms persisted and the Respondent continued to encounter difficulty carrying out his work tasks.

6.In September 2005 the Respondent consulted his General Practitioner who prescribed medication for treatment of the symptoms earlier described.  The Respondent continued performing his duties until 18 November 2005 on which date he found himself physically incapable of continuing at work.  The Respondent was absent from work between that date and 3 February 2006 on which date he recommenced work with the Appellant working part-time.  The Respondent continued working with what are described as “lost hours” until his resumption on fulltime duties on 21 June 2006.

7.The Respondent, in March 2006, made a claim against the Appellant and its Insurer with respect to workers compensation benefits by reason of incapacity alleged to have been caused by a condition of major depression resulting from work conditions.  That claim was declined by the Employer and its Insurer and, on 4 August 2006, an Application to Resolve a Dispute was filed on behalf of the Respondent with the Commission seeking orders in respect of payment of workers compensation benefits including weekly payments and medical expenses.  That Application came before an Arbitrator for conciliation/arbitration on 19 November 2006 and a certificate of determination issued on 20 November 2006.

THE DECISION UNDER REVIEW

8.The ‘Certificate of Determination’ dated 20 November 2006 records the Arbitrator’s orders as follows:

“The determination of the Commission in this matter is as follows:

1.That the Respondent pay to the Applicant weekly benefits compensation pursuant to ss 36 and 40 in accordance with the amounts set out in the wages schedule filed by the Applicant with the Respondent to be given credit pursuant to s 50 for payments made.

2.That the Respondent pay the Applicants reasonable s 60 expenses.

3.That the Respondent pay the Applicants costs as agreed or assessed.”

9.A Statement of Reasons for Decision (‘Reasons’) was delivered by the Arbitrator at the hearing on 19 November 2006 and a transcript of those Reasons is before the Commission.

ISSUES IN DISPUTE

10.The issues in dispute in the appeal are:

(i)     whether the Arbitrator erred in law in finding that the incapacity alleged arose as a consequence of a workplace injury;

(ii)   whether the Arbitrator erred in failing to base his decision on logical and probative evidence in particular in failing to give sufficient weight to expert evidence of Dr Roberts and failing to give sufficient weight to specific evidentiary material addressed hereunder, and

(iii)    whether the Arbitrator erred in determining that the Worker’s employment was a substantial contributing factor to injury.

11.The summary of the issues as set forth above is taken from paragraph 2.6 headed “Grounds of Appeal” which appears in Part B of the Appellant’s Application.

12.The matters above summarised have been the subject of submissions in response by the Respondent in his “Notice of Opposition to Appeal Against Decision of Arbitrator” filed on 29 January 2007.

ON THE PAPERS REVIEW

13.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.”

14.Having regard to Practice Directions Numbers 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.

LEAVE

15.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

16.The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.

17.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

18.The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.

EVIDENCE

19.The evidence before the Arbitrator was summarised by him at page 42 of a transcript of the proceedings before him (lines 27 – 58).  That summary forms part of the Arbitrator’s Reasons and the transcript includes a record of the unsworn oral evidence of the Respondent and the submissions put by the parties’ legal representatives at the conclusion of that evidence.

20.The Respondent, in addition to the oral evidence adduced at the hearing, relied upon documentary material which was attached to his original Application.  That material included a report dated 7 June 2006 of the Respondent’s treating Psychiatrist, Dr Graham J George, a number of medical certificates issued by the Respondent’s General Practitioner, copies of correspondence from the Appellant’s Workers Compensation Insurer addressed to the Respondent, a schedule of medical expenses together with accounts or receipts and a statement in the form of a Statutory Declaration made by the Respondent dated 2 August 2006. A Wages Schedule had been filed on 4 August 2006.

21.The Appellant relied upon those documents which were annexed to an Application to Admit Late Documents filed on 18 October 2006.  Those documents comprised a medical report dated 13 October 2006 from Dr John Albert Roberts, Psychiatrist and written Statements of seven co-workers of the Respondent.

22.The transcript of proceedings records (page 2, line 40) that a report of the Applicant’s General Practitioner, Dr Nigel Bacon, dated 23 May 2006 was tendered in evidence.  It is not clear as to which party tendered that report however it is recorded that the report was addressed to the Insurer, had been referred to by Dr Roberts in his report and a copy of same had been produced by Counsel appearing on behalf of the Appellant before the Arbitrator.  There is no copy of that report presently before the Commission.

23.The transcript of proceedings records (page 18, lines 4 – 6) that photocopies of four diary entries compiled by the Respondent in the course of his work were received in evidence before the Arbitrator.  Copies of diary entries dated 29 May 2001, 30 May 2001, 2 December 2003 and 28 May 2004 appear on the Commission file and may safely be taken as being the copies of extracts as described during exchanges between the Arbitrator and the Respondent’s Solicitor.

24.It was recorded by the Arbitrator in the course of his Reasons (page 43, lines 3 – 5) that it was agreed between the parties that the Respondent, at the date of his cessation of work in November 2005, had suffered from a major depressive illness.  As stated by the Arbitrator:

“The issue really is whether it arose out of or in the course of his employment – section 4 of the 1987 Act – and whether his employment was a substantial contributing factor to that injury – section 9A.”

25.The Respondent, in his sworn Statement, asserts that during the period February 2000 to October 2004 he carried out the duties of both Supervisor and Workshop Team Leader.  He further asserts that he “made several requests to management to have my original position of Workshop Team Leader filled by another person while I was working in the Acting Workshop Supervisor role.”  His requests went unheeded and the Respondent states that he found his positions very demanding, onerous and highly stressful.  The Respondent further states that the only occasion on which he received any assistance from an acting Team Leader was during the final period that he worked as a Supervisor that being from June 2005 to August 2005.

26.As noted above the Respondent first experienced loss of energy and other symptoms detailed at paragraph 12 of his Statement in approximately 2003.  Whilst the Respondent ceased the dual roles of Supervisor and Team Leader in late 2004 he asserts that the symptoms earlier referred to persisted and, as stated in the course of his evidence (transcript page 24, line 39) his condition “was just progressively getting worse”.  It was that worsening of symptoms that lead the Respondent, with the encouragement of his wife, to consult Dr Bacon in September 2005.  It is to be noted that the reported worsening of symptoms occurred during a period when the Respondent had assistance with his duties.

27.Dr George, who was first consulted in December 2005, records a history that the Respondent had “not felt right for three years”.  Dr George noted the Respondent’s symptoms of energy loss, social withdrawal, sleep disturbance and development of an obsessional approach to his work during that three year period.  Dr George noted that the Respondent:

“appeared somewhat agitated and depressed …  His affect was agitated and his mood depressed.  Cognitions were not tested formally but generally appeared intact.” 

Upon the basis of his history taking and examination Dr George concluded that the Respondent was then suffering from Major Depression with anxiety.  Dr George had earlier noted that the Respondent had a history of social phobia and observed:

“… that he had an underlying condition such as, a social phobia does not preclude the fact that his work has been a substantial contributing factor to the onset of Major Depression.  He may well have been more vulnerable but certainly he gives good evidence to suggest that working in the two positions over an extended period of time was too much for him and he found it incredibly stressful.”

28.The contents of the diary entries referred to in paragraph 24 above were said by the Respondent, in the course of his oral evidence, to support his assertion that he had made complaint concerning the need for assistance with his work to his superiors.  The content of those entries is addressed by the Arbitrator in his Reasons.

29.The Appellant relied upon the Statement of Mr Amaraweera.  That witness stated, in part, that he was unaware of any complaints of stress suffered by the Respondent in the course of his work until such time as “it was decided that he was to step down from the Acting Workshop Supervisor’s position”.  It is noted by that witness that the Respondent “re-applied for the position of Acting Workshop Supervisor” in 2005.  That witness has “no recollection of Mr Giggins ever asking for assistance or complaining that his role was too demanding”.

30.Mr Dynan, in his Statement relied upon by the Appellant states, in part, that the Respondent’s acting position was to last for six months but that the project expanded after initial success and the Respondent was left in the position of Acting Workshop Supervisor for a much longer period namely up to late 2004.  Mr Dynan states that he has no recollection of Mr Giggins ever making any comments indicating that he was not coping well with his work.

31.Mr Cheli, in his Statement relied upon by the Appellant, states, in part, that the Respondent “was busy with his workload but there were also issues with the way he managed his time”.  Mr Cheli proceeded to state that the Respondent performed well in his work but when in discussion concerning work methods becomes defensive and that audits which were conducted were taken by the Respondent as being critical.  Mr Cheli observed in that Statement that the Respondent “became flustered and uncommunicative when dealing with problems”.  It was stated that “if something came up or there was an emergency, Darryl was thrown out.  He couldn’t handle having his schedule changed.”

32.Mr Rudder, in his Statement relied upon by the Appellant, observed that the Respondent whilst working in dual roles appeared “stressed about what was going on”.

33.Mr Kempnich, in his Statement relied upon by the Appellant, confirms that the Respondent took over his position as Workshop Supervisor in an acting capacity.  Mr Kempnich also confirms in his Statement that the Respondent performed those duties as well as those of Team Leader and proceeded to state:

“11.The first 2 months I assisted Darryl with the running of the workshop on a daily basis.  I helped a lot.  After that I assisted him where needed.  However, after 6 months I backed out of assisting him because I needed to concentrate fully on my secondment.

12.  Darryl seemed to be struggling or getting more cranky and agitated.  I noticed this behaviour increase over the full period that he was acting in my role.  Sometimes things seemed to be getting on top of him.

13.  Darryl did not have a leading hand/team leader working under him.  I heard him tell the other workers that he had asked for a leading hand on several occasions.  I do not know who he asked, but I presume he would have asked through Kingsley Roberts, Abul and John Dynan.  When the structure changed it would have been through Kingsley (until Tony Cheli took over his role) Lalith Amaraweera (new state Workshop Manager) and John Dynan.”

34.Mr Wright, in his Statement relied upon by the Appellant, states, in part, that he had been employed by the Appellant since December 2002 and was familiar with the Respondent’s work performance.  Mr Wright stated that “at first I did not think Darryl seemed stressed at work.  He was a nice guy who was willing to show me around and help me out. …”  Mr Wright proceeded to state:

“I am not 100% sure what has caused Darryl’s depression problems.  He has often seemed stressed at work.  I think management stress [sic] everyone out, including myself.”

35.Mr Broomfield, in a Statement relied upon by the Appellant, outlines his dealings with the Respondent in his capacity as Injury Management Co-Ordinator.  It is recorded in that Statement that the Respondent first submitted WorkCover medical certificates in March of 2006 during a return to work program.

36.The report of Dr Roberts dated 13 October 2006, relied upon by the Appellant, contains a summary of the Respondent’s history and Dr Roberts’ observations in the course of examination and contains a comment at page 6:

“COMMENTS:  Having regard to the above description of symptomatology and noting that the illness affected not only Mr Giggins’ capacity to work but to relate to his family and even to go shopping in Grafton, the illness is consistent with the diagnosis of Major Depression – Major Depression is an illness of life, it is not related to circumstances.”

37.Dr Roberts proceeded to express the view that the Respondent’s illness “made his position more difficult rather than his work duties causing his illness.”  Dr Roberts expressed the view that he considered that the Respondent’s Major Depression would have occurred regardless of circumstances.  It was Dr Roberts’ view that the Respondent’s illness was a biological depressive illness and he did not consider that such was substantially related to employment.

SUBMISSIONS

38.It is asserted by the Appellant that the Arbitrator erred in law in finding that “the incapacity alleged arose as a consequence of a workplace injury”. The submissions in support of the suggested error of law are founded upon two distinct lines of argument. It is firstly argued that such error is evident in the Arbitrator’s reasoning with respect to the proper application of the provisions of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) to the facts. The thrust of this first submission is that the Respondent’s psychological injury arose because of a “misperception” by the Respondent and further that there was no “causal” connection between the Respondent’s employment and his psychological injury. Reference is made by the Appellant to the decisions of Townsend v Commissioner of Police (1992) 25 NSWCCR 9 (‘Townsend’) and Yeo v Western Sydney Area Health Service (1999) 17 NSWCCR 573 (‘Yeo’).

39.The Appellant’s second argument in support of the assertion that there has been an error of law goes to the question as to whether the facts proven are capable of establishing “injury” within the meaning of section 4 of the 1987 Act. It is put that the Respondent’s misperception of “otherwise innocuous matters” which leads to the development of a psychiatric condition “does not constitute injury arising out of or in the course of employment”.

40.The Appellant’s submissions, which are in narrative form, return to the subject of suggested misapplication of section 9A of the 1987 Act. It is put that the Arbitrator “could not have been satisfied on the evidence that a substantial cause of the Applicant leaving work in November 2005 was a period and condition of employment that had ceased 12 months earlier, in the absence of any corroborative evidence”. Reference is made to the decisions of Dayton v Coles Supermarkets Pty Limited [2001] NSWCA 153, Mercer v ANZ Banking Group [2000] NSWCA 138 and Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725.

41.The Appellant’s ground of appeal which asserts error on the part of the Arbitrator by reason of his failure to found his decision on “logically [sic], probative evidence” is said to be demonstrated by his failure to give sufficient weight to the evidence of Dr Roberts, the absence of “contemporaneous evidence of [the Respondent’s] repeated complaints to superiors” and failure to give sufficient weight to the evidence of the Respondent’s superiors.  It is further put that the Arbitrator’s findings were based “on an incorrect assumption” concerning the making of complaints.

42.The Respondent in his submissions on this appeal seeks to refute those arguments raised by the Appellant and to support the conclusions reached by the Arbitrator as revealed in his Reasons.  Brief reference is made to the evidence and the reasons stated by the Arbitrator in support of the Arbitrator’s conclusions of fact and his application of the relevant law.

DISCUSSION AND FINDINGS

43.This appeal is brought pursuant to the provisions of section 352 of the 1998 Act.  Subsection (5) of that section provides:

“(5)   An appeal under this section is to be by way of review of the decision appealed against.”

The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that aforementioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.

44.As noted above at paragraph 24 there was no issue between the parties as to the existence of a psychiatric condition suffered by the Respondent at the relevant time nor that such condition resulted in a period of incapacity for work. It is the Appellant’s argument that the Arbitrator has erred in concluding, as alleged by the Respondent in his original Application, that the psychiatric condition was caused by his “onerous and stressful” work duties. The Appellant in its submissions does not, in my view, draw a clear distinction between the matters of principle raised by proper application of the provisions of section 4 of the 1987 Act and the questions relevant to an examination of the Arbitrator’s findings with respect to section 9A of the 1987 Act. It is however clear that the Appellant disputes the Arbitrator’s finding as to the issue of “injury”. The relevant finding by the Arbitrator is to be found at page 50 of his Reasons (lines 25 – 28) where it is stated:

“… it follows I find that the Applicant did sustain an injury, being a psychological injury, being a major depressive illness which arose out of or in the course of his employment. That then leads me to the question of section 9A ….”

45.The Appellant, correctly in my view, relies upon the decisions of the former Compensation Court of NSW in Townsend and Yeo in support of the proposition that (as stated by Neilson J in Yeo):

“A misperception by a worker of otherwise innocuous matter, which misperception leads a worker to develop a psychiatric condition, does not constitute injury arising out of or in the course of employment.”

46.As noted above it is asserted that the Respondent’s psychological injury arose because of a misperception.  Attention is drawn by the Appellant to the Arbitrator’s reference to particular aspects of the evidence however, in my view, fails to identify or to in any way characterise the “misperception” which is asserted.  In the matter of Townsend the unsuccessful Claimant was found by the Court to have had perceptions which were not in accord with reality and that the medical evidence in support of the claim was founded upon acceptance of such misperception.  In the matter of Yeo the unsuccessful Claimant was found to have misperceived what occurred during an interview which occurred in the course of his employment.  The Claimant’s beliefs were found to have been irrational by the Court and development of an undoubted psychiatric condition was found not to have constituted injury within the meaning of the 1987 Act.

47.In the present matter there is, in my view, no evidence of “misperception” in the relevant sense made by the Respondent with respect to relevant circumstances prevailing in the workplace at material times.  In the absence of such evidence and indeed in the absence of any argument identifying the nature of such misperception it is my view that the Respondent’s challenge to the Arbitrator’s finding as to injury must fail.  The Arbitrator’s finding with respect to injury is based upon his evaluation of the medical evidence and the Appellant’s challenge with respect to the acceptance of that evidentiary material is dealt with below.

48.The Appellant’s challenge to the Arbitrator’s findings with respect to section 9A of the 1987 Act appears to be founded upon two bases. Firstly it is put that the Respondent’s psychiatric condition resulted from his “misperception” of circumstances as discussed above. Such an argument, as I have attempted to outline above, goes to the question of whether there is evidence capable of establishing injury in terms of the 1987 Act. I have rejected the Appellant’s arguments with respect to the suggested “misperception” and, insofar as any such argument may be relevant to a determination of the correctness of the Arbitrator’s application of principle with respect to section 9A of the 1987 Act, such argument must fail.

49.Secondly it is put in submissions on behalf of the Appellant that:

“The Arbitrator could not have been satisfied on the evidence that a substantial cause of the Applicant leaving work in November 2005 was a period and condition of employment that had ceased twelve months earlier, in the absence of any corroborative evidence.”

50.It is correct, as raised by the Appellant, that the onerous duties in both roles performed by the Appellant came to an end in November of 2004. As pointed out by the Respondent in his submissions there was a subsequent period of a number of months in 2005 where the acting position was again taken up by him. There is, in my view, little if any evidence to suggest that conditions of work during that latter period were as onerous as earlier experienced by the Respondent. The Arbitrator addresses the questions raised for determination by him with regard to section 9A of the 1987 Act at pages 50 and 51 of his Reasons. The provisions of section 9A are recited. In the context of the Appellant’s argument it is significant to note that, when considering the matters prescribed by section 9A(2), the Arbitrator made the following observations and findings:

“Then subsection (2):

The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial  .  .  .  factor to an injury (but this  .  .  .  does not limit the kinds of matters that can be taken into account for the purposes of such a determination):

First:

(a)       the time and place of the injury.

Well, there is no frank injury.  This is an injury that has occurred over the course of his employment over a long period of time:

(b)       the nature of the work performed and the particular tasks  .  .  .

Well, certainly, in my view, the nature of his work having to undertake work without support in a highly stressful position for four years has certainly been a factor:

(c)       the duration of the employment

I’ve covered that.  Importantly:

the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,

And:

(e)          the worker’s state of health before the injury and the existence of any hereditary risks,

And:

(f)          the worker’s lifestyle and his or her activities outside the workplace.

Even if you find that there have been hereditary or other pre-existing matters, that doesn’t mean that that automatically means that work has not been a substantial contributing factor, and it’s the same even if there was a probability that a similar injury might have arisen. Mercer’s case was exactly on that point, where the worker had a knee condition where there was medical evidence that she could have twisted or hurt her knee at any time, any place but she actually did it swivelling around in a chair. In the first instance it was held that, therefore, work could not be the substantial contributing factor. That was overturned on appeal. As well as what was decided, my understanding of section 9A is that it doesn’t have to be the only substantial contributing factor; it has to be a major or significant – it must be large or weighty, but it doesn’t have to be the only factor. Even if I accept here that there was some propensity for the applicant to sustain what Dr Roberts calls a biological illness, even if I am satisfied that work was a substantial contributing factor to the illness manifesting itself in the workplace, then section 9A is satisfied.

There is no evidence of any pre-existing health or other issues other than those matters raised by Dr George, and there’s certainly no medical evidence of those.  On that point I should state that the respondent was served with the report of Dr George in the application and it could have at any time sought to have Dr Bacon’s or Dr George’s clinical notes produced to test those assertions.  There’s no suggestion that there’s any other factors that have caused the depression.  There’s a great deal of suggestion that it was caused in the work that arose in the workplace.  I have found that it is an injury that arises out of or in the course of employment, and I am also satisfied on the balance of probabilities that the employment was a substantial contributing factor to the injury…”

51.In the context of the Appellant’s submission challenging the Arbitrator’s determination of matters relevant to section 9A of the 1987 Act it may be said that sub-subsection (2)(a) of that section is of relevance, namely “the time and place of the injury”. The Arbitrator has made no reference to the cessation of the onerous tasks in November of 2004. However, it is clear that the Arbitrator has accepted the evidence of the Respondent that debilitating symptoms, whilst not incapacitating, had commenced prior to November 2004. Whilst it is true that Dr George, whose evidence was accepted by the Arbitrator, did not record the history that the onerous work came to an end in November of 2004 it is plain from the terms of that Practitioner’s report that he accepted not only a causal nexus between the onerous duties performed and the manifestation of the disorder of Major Depression but that those duties had been a substantial contributing factor to the onset of the disorder. There is nowhere to be found in the evidence before the Arbitrator any suggestion that there was any amelioration of symptoms experienced by the Respondent after cessation of the onerous work in November of 2004. The Arbitrator as above quoted has found that the subject injury was one that had occurred “over the course of his employment over a long period of time”. The terse form of that finding may be open to criticism in that there was no attention there given to the lapse of time between cessation of the onerous duties and the onset of incapacity. I note that that matter had been raised on behalf of the Appellant by Counsel during the course of submissions before the Arbitrator. Notwithstanding the submission it is my view that the reasons given as above quoted demonstrate that the Arbitrator has found a direct causal link between the onerous duties and the onset of the Respondent’s psychiatric condition. Implicit in that finding is a rejection of the argument that the interval between cessation of the onerous duties and the onset of incapacity is such as to defeat the Respondent’s assertion that such work was a substantial contributing factor to injury. That the Arbitrator had taken into account the facts which found the Appellant’s argument with respect to section 9A may be seen at page 44 of his Reasons where, after earlier noting cessation of the dual roles in November 2004, it is stated (lines 48 – 56):

“He then says that by 2004 he was suffering from insomnia.  He would wake early in the mornings, he would find himself agitated, preoccupied by events at work, his appetite commenced to decline, he felt depressed all the time to the point where he would break down crying, he found he had little motivation to participate in activities, then he lists all of those.  But he didn’t consult his doctor until September 2005 after he says not (sic) feeling his normal self for a very long period of time.”

52.It was accepted by the Arbitrator that the Respondent had performed the onerous duties between February of 2000 and October of 2004. The Arbitrator further accepted the Appellant’s evidence that the onset of symptoms occurred in 2003. The medical evidence accepted by the Arbitrator established a causal nexus between those duties and the psychiatric condition and in those circumstances I am not satisfied, as argued by the Appellant, that it was not open to the Arbitrator to find as he did with respect to matters raised by the provisions of section 9A.

53.The Appellant challenges the Arbitrator’s determination upon the further ground that he failed to give sufficient weight to the following evidence:

(i)   that of Dr Roberts in his report dated 13 October 2006;

(ii)    the absence of evidence concerning “repeated complaints to superiors”, and

(iii)  the evidence of the Respondent’s superiors.

It is also asserted by the Appellant that the Arbitrator had erred by “accepting there were complaints but ignoring the evidence in that regard”.

54.It was stated by Dr Fleming DP in Rohloff v Diacut Pty Limited (in liquidation) [2005] NSWWCCCPD 17:

“Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully.”

55.The Arbitrator in my view gave careful consideration to the medical evidence which was before him which included that of Dr Roberts (see Reasons pages 48 – 50).  As noted by the Arbitrator, Dr Roberts was “adamant that the major depressive disorder is not related to the applicant’s work”.  The Arbitrator analysed the views expressed by Dr Roberts following which he made the observation that in certain respects his views as stated were contradictory.  The Arbitrator proceeded to express a preference for the evidence of Dr George concerning causation of the Respondent’s condition.  That expression of view constitutes the product of discretionary judgment which, in my view, has been exercised lawfully and fairly.  In short I conclude that the Appellant has not established failure on the part of the Arbitrator to give sufficient weight to the evidence of Dr Roberts.

56.With respect to the absence of evidence corroborating the Respondent’s evidence concerning the making of complaints to his superiors I am of the view that the Arbitrator, in the course of his Reasons, reveals not only that he had taken into account the absence of such evidence but that that absence troubled him when considered along with the evidence of Mr Amaraweera and Mr Dynan (see page 45 of Reasons).  Notwithstanding the state of the evidence the Arbitrator concluded (at page 47):

“While I’m troubled by the diary entry issue, I accept his evidence that he did mention the issue of support.  I’m not so certain that he made as much of an issue of it as he says he did, but I am satisfied and accept the evidence that he sets out in his statement that there were significant problems in the workforce in undertaking the workload that was at the same time that he commenced having symptoms as he described, which he later described to the doctors....”

57.I am of the view that the conclusion reached by the Arbitrator as above quoted was open to him on the evidence and that his conclusion had been reached following a fair and lawful exercise of his discretionary judgment as to the weight of the evidence as a whole. It cannot be said, as contended, that the Arbitrator “ignored the evidence in that regard”.

58.I have reached a similar conclusion with respect to the Appellant’s argument concerning the Arbitrator’s approach to the evidence of the Respondent’s superiors.  The evidence of the Respondent’s co-workers was considered in detail by the Arbitrator in the course of his Reasons (see pages 45 and 46 of Reasons).  The Arbitrator noted the conflict between the evidence of the Respondent and the Appellant’s witnesses (in particular Mr Amaraweera and Mr Dynan).  I have earlier, at paragraphs 56 and 57, made reference to the Arbitrator’s conclusions following an evaluation of that conflicting evidence.  I am not persuaded there has been established by the Appellant, in any relevant sense, that the Arbitrator has failed to give sufficient weight to the evidence of the Respondent’s co-workers.

DECISION

59.The appeal is unsuccessful.  The decision of the Arbitrator dated 20 November 2006 is confirmed.

COSTS

60.The Appellant is to pay the Respondent’s costs of the appeal as agreed or assessed.

Kevin O’Grady

Acting Deputy President  

17 July 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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