Royal Rehabilitation Centre Sydney v Cassar
[2008] NSWWCCPD 41
•7 April 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Royal Rehabilitation Centre Sydney v Cassar [2008] NSWWCCPD 41
APPELLANT: Royal Rehabilitation Centre Sydney
RESPONDENT: Peter Cassar
INSURER:NSW Treasury Managed Fund No. 1
FILE NUMBER: WCC5238-07
DATE OF ARBITRATOR’S DECISION: 26 November 2007
DATE OF APPEAL DECISION: 7 April 2008
SUBJECT MATTER OF DECISION: Injury- section 4 of the Workers Compensation Act 1987; employment a substantial contributing factor to injury – section 9A of the 1987 Act; ‘Notice of Contention’; logically probative evidence; weight of evidence; findings of fact.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Moray & Agnew
Respondent: Bolzan & Dimitri
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 26 November 2007 is confirmed.
The Appellant Employer is ordered to pay the Respondent Worker’s costs of this appeal.
BACKGROUND
On 21 December 2007, the Royal Rehabilitation Centre Sydney (‘the Royal’), the Appellant Employer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 26 November 2007.
The Respondent Worker in the Appeal is Mr Peter Cassar.
The Insurer is the NSW Treasury Managed Fund No 1.
Mr Cassar commenced employment with the Royal on 15 October 1996 as a wardsman. From 2 April 1997 he worked for the Royal as a community support worker. While so employed, he completed a Bachelor of Education degree and assisted one of his clients, Ms Jan Daisley, in undertaking and completing the same degree. Mr Cassar received an award for outstanding service from the Director of the Community Integration Program in November 2002.
At [6] of his ‘Statement of Reasons for Decision’ (‘Reasons’), the Arbitrator observed:
“Of relevance is the fact that on 11/1/2000, the Applicant suffered a motorbike accident (unrelated to his work) that caused problems with his left knee and a [sic] significant psychological difficulties. Dr Julian Parmegiana assessed the Applicant (report 128/8/2003) as suffering from:
‘chronic and debilitating pain. This had an adverse impact on his mood, making him irritable and often depressed about his physical limitations. He was unable to pursue physically demanding interests, such as hunting and fishing. It is likely that by the end of 2002 he had a panic attack. His psychiatric symptoms were now a consequence of chronic and debilitating pain. From this perspective, his current diagnosis is Adjustment Disorder With Mixed Anxiety and Depressed Mood.’”
In his detailed statement dated 12 May 2005 Mr Cassar sets out the history of his employment with the Royal. As a wardsman he worked at Weemala, a large residential institution that accommodated people suffering from severe intellectual and physical disabilities. Mr Cassar claims that he “was given a hard time” by the nursing unit manager, Ms Sheila Wilson, whom he said, was very demanding, ordering him to undertake work that was not within the ambit of his duties, and belittling him in front of other staff members. Mr Cassar said that he reported Ms Wilson to the Chief Executive Officer, Mr Ian Stevenson, after which other members of staff “joined forces” with Ms Wilson, “and together they made working in Weemala difficult and stressful.” He said that he endured this treatment as he cared for the wellbeing of the residents and he needed the job.
Mr Cassar was appointed to the position of community support worker in April 1997, on a casual basis. In July 1997 he was offered a fixed term contract for 12 months. He states, “I felt insecure and constantly pondered about what would happen to me after the twelve months. I also was somewhat confused, as the job advertisement (which I have a copy of) stated that there were full-time positions on offer.” Ms Maz McCalman, Director of the Community Integration Program, assigned him to Abbotsford House, at his own request.
He states that in September 1997 Ms McCalman spoke to him prior to a staff meeting, and informed him that he would find it difficult to advance in the job without prior skills and experience in relation to dealing with persons with disabilities. He states that he informed Ms McCalman that he would attend courses and develop skills over time. He says, “I felt my ability was being doubted and that I had no chance to [sic] advancement or promotion.”
Mr Cassar says that on Christmas Eve, 1997 Ms McCalman informed him that he was to be transferred to the Holiday Relief Team. He said, “Her announcement came as a shock and caused me a great deal of stress and anxiety.” He said that he had approached his Union in November 1997 about the status of his employment under the fixed term contract. The Union wrote to Ms McCalman about the matter and this angered her. He says, “ … and as payback she decided to transfer me from where she knew I was doing well and having positive outcomes with those under my support.” However, this transfer did not eventuate.
On 15 January 1998 Mr Cassar consulted his treating doctor, Dr Mundkur as he was not feeling well, was worrying about his work situation, and was not sleeping well at night. Dr Mundkur issued him with a certificate stating that he was suffering from anxiety, and referred him to a psychiatrist, Dr Ann Stevenson. On 24 February 2008 Dr Stevenson issued him with certificates indicating that he was experiencing anxiety and depression, “which was caused from work related issues.” Mr Cassar said that he handed all of these certificates to his supervisor at the time.
During the seven years that he was employed at Abbotsford House, Mr Cassar opines that he and others were looked upon as troublemakers and were given a hard time by management. He apparently assisted many clients, including Ms Daisley. They both acquired degrees, as outlined above.
Mr Cassar then outlines in much detail, the history of his employment with the Royal, which he claims, included a host of unsatisfactory aspects, causing him a good deal of anxiety and distress, notwithstanding his best efforts to assist residents at Abbotsford House, and promote their rights. His view of what was occurring appears to be represented in an observation at page 8 of his statement:
“There are some very nice people working for CIP, and there are others who are just plain nasty. The nasty people are mostly from middle management and make up what I believe to be a Sub-Culture within the organisation. If one does not fit-in, conform to, or stands-up to this sub-culture to protect the rights of their clients or their own personal rights, then that person is harassed and bullied by those within it.”
He describes numerous incidents, events and other matters of an unsatisfactory nature, which brought him into conflict with various officials. He accuses the organisation of breaches of relevant legislation, and abuse and neglect of clients of the Community Integration Program. I have closely read, but do not intend to reproduce here, the further mass of detail set out in Mr Cassar’s thirteen-page statement.
The Arbitrator observes at [7] of his Reasons:
“It may be that as a result of that overwhelming sense of commitment and single mindedness that the Applicant found himself in dispute with management of CIP over a number of work related issues.”
In reference to Mr Cassar’s complaints, the Arbitrator goes on to say at [8] and [9]:
“8.The nature of these complaints were reviewed in great detail during the course of some eight hours of hearing, and counsel, particularly Applicant’s counsel, had the opportunity to address me on these matters extensively. Taken as a whole, I find that these claims were not made out, or where there was some genuine issue raised, were appropriately investigated and properly dealt with by the Respondent.
9.The material indicates that the Applicant did try to arrange the organisation of shifts and accumulated leave for his own benefit and was quite methodical and demanding in trying to do so. Also he did not properly complete forms that were implemented and attempted to circumvent procedures to his advantage. In stating the matter in this way, I do not imply criticism of the Applicant, as I find that the Applicant was motivated in his actions not solely for his own benefit but to assist his clients, particularly Miss Daisley, through the allocation of resources to them. I also note the universal acclamation, even by people with whom the Applicant came into conflict, of his work ethic and devotion to his work and his clients.”
Mr Cassar ultimately became involved in a dispute on 16 March 2004 with Mr Joshua Kim, Team Leader and Mr Andrew Chau, a clinical nurse. As a result, he left the workplace, never to return. Subsequently Mr Cassar received a letter from Mr Kim transferring him from Abbotsford House. The Arbitrator describes the correspondence, at [17] of his Reasons:
“That letter (dated 26/3/2006 [sic]) concerned the deployment of the Applicant to another CIP service outlet, at Putney, with only two weeks notice. Whilst describing the transfer on the basis of ‘the need for professional development’ and ‘matching changing client needs and configuration’, and that the Applicant was ‘requested to consider redeployment’ it further noted that the deployment is part of the contract of employment and ‘your co-operation and support in this deployment is greatly appreciated.’”
Mr Cassar claims that he suffered a depressive condition caused by the stress brought on by this workplace incident and the correspondence that followed.
Mr Cassar had filed in the Commission, on 12 July 2007, his ‘Application to Resolve a Dispute’, claiming psychiatric injury, the claimed injury arising from “being questioned about professionalism and integrity. Also receiving letter about being transferred to another job.” The Royal filed a Reply in the Commission on 3 August 2007.
The matter came before the Arbitrator and in due course, hearings were conducted on 11 October 2007 and 30 October 2007. The Arbitrator’s ‘Certificate of Determination’ and Reasons were issued on 26 November 2007.
THE DECISION UNDER REVIEW
The Arbitrator’s ‘Certificate of Determination’ dated 26 November 2007, records his orders as follows:
“1.There is an award for the Applicant in respect of the claim for weekly compensation. The Respondent is to pay the Applicant, as follows:
1)pursuant to s 36 of the 1987 Act, from 27/3/2004 to 25/9/2004 at the rate of $879.42 per week;
2)pursuant to s 37 of the 1987 Act from 26/9/2004 to date and continuing at the maximum statutory rate, as amended, for a single worker with two dependent children.
2. The Respondent is to pay the Applicant’s costs as agreed or assessed.
3.I certify that this was a complex matter and determine that pursuant to Clause 11(a) of Schedule 6 of the Workers Compensation Regulation 2003 that in respect of both the Applicant’s and the Respondent’s costs that a percentage increase of 30% be applied.”
ISSUES IN DISPUTE
The issues in dispute in the Appeal are succinctly stated in the grounds of appeal, as follows:
“(a)The Arbitrator erred in law in finding that the worker sustained an injury arising out of or in the course of the worker’s employment with the appellant.
(b)The Arbitrator erred in law in finding the worker’s employment with the appellant was a substantial contributing factor to any injury, including the aggravation, acceleration, exacerbation of a disease condition.
(c)The Arbitrator failed to base his decision on logically probative evidence in that he:-
(i) Failed to have proper regard to the weight of the evidence.
(ii)Based his findings on incorrect assumptions with respect to the facts.”
ON THE PAPERS REVIEW
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 Numbers 1 and 6, the documents that are before me, and the submission 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
There is no dispute that the monetary threshold set out in section 352(2) of the 1998 Act has been met. The amount of compensation at issue on appeal is both at least $5000 and 20% of the amount awarded in the decision of the Arbitrator that is appealed against.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ and attachments were filed out of time in contravention of Rule 16.2 (7) of the Workers Compensation Commission Rules 2006 (‘the Rules’). However, discussions between the legal representatives of the parties, as evidenced in the papers so filed, led to the consent of the Royal for Mr Cassar to file his documents on 7 March 2008, which he did. In the circumstances, I dispense with the requirement for Mr Cassar to comply with Rule 16.2 (7).
Leave to appeal is granted.
REVIEW BY A PRESIDENTIAL MEMBER
Section 352(5) of the 1998 Act provides that an appeal against the decision of an Arbitrator is to be undertaken by way of a review of that decision.
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. A review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
In this case, the Royal must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; see also The King Island Company Limited v Deery [2005] NSWWCCPD 1), in order to enliven the Presidential member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Moreover, the error must be such that, but for it, a different decision should have been made in its place (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311. See also section 294 of the 1998 Act).
In Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, the Court said that the review process is broader than the correction of error “of the kind identified in House v The King”.Bryson JA said [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504-505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134], McColl JA quoted this passage with approval after holding that it was “an over-generalisation” to describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” (at [133]). Her Honour went on to say:
“There are certainly aspects of the laws of evidence which involve discretionary decisions. The application of ss 135 and 136 of the Evidence Act 1995 are ready examples. However the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principles and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.”
The nature of a review was also considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 (‘Chemler’), where Spigelman CJ said at [28] and [30]:
“28The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State, which establishes the breadth of a review on the merits.
30.A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
NOTICE OF CONTENTION
While Mr Cassar submits that the decision of the Arbitrator should be confirmed, he submits that the Arbitrator “did not give proper consideration or weight to nor properly analysed [sic] the following facts and issues, contained in the evidence which facts the worker relied upon in part as causative of his ‘psychological injury’.”
In pursuing this assertion, Mr Cassar seeks to rely upon a ‘Notice of Contention’, which he filed with his submissions on Appeal. In that ‘Notice of Contention’ Mr Cassar contends that the decision as to events of injury should be affirmed on “grounds” in addition to those relied on by the Arbitrator, but he does not seek a discharge or variation of any part of the Arbitrator’s decision. He states, “The Respondent Worker contends that these additional grounds apply in his favour after due consideration is given to sections 9A and 11A of the 1987 Act.” No fresh or additional evidence is put forward, and the contents of the ‘Notice of Contention’ are comprised of submissions that relate to the evidence that was before the Arbitrator.
No further submissions have been filed by the Royal, following the service upon it of Mr Cassar’s ‘Opposition’, submissions on Appeal and the ‘Notice of Contention’.
The Workers Compensation Commission is a creature of statute. It is not a court (Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited t/as Ascot Freightlines & Anor [2003] NSWCA 146). It does not possess the ‘inherent’ powers that attach to a court. It has only those powers that are conferred by the statute and incidental powers that are implied by statute and that are necessary to exercise the jurisdiction conferred upon it (Yong Fu Zhang v Mei Hu t/as Eden Furniture and the WorkCover Authority of NSW [2006] NSWWCCPD15. See also NSW State Brickworks v Abi-Arraj (1995) 12 NSWCCR 391, where Meagher JA said at 397 that the former Compensation Court’s jurisdiction, powers and functions must be discovered in the express or implied terms of the workers compensation legislation, as it then was. Any attempted exercise of power beyond those conferred or implied by statute would necessarily be of no legal effect (Commissioner of Police v Donlan, Commissioner of Police v Hanson, CA, 20 June 1995 (unreported)).
There is no provision in the workers compensation Acts, the Rules or the Practice Directions for the filing of a ‘Notice of Contention’ or for a Presidential member to proceed upon the basis of such a Notice. Nor as far as I am aware, is there such an implied power that is “necessary” to enable a Presidential member to exercise the jurisdiction conferred by statute, upon the Commission. In the circumstances, it seems to me that a consideration of a ‘Notice of Contention’ exceeds the express and implied powers of review that are necessary for the exercise of the jurisdiction of the Commission, constituted by a Presidential member. However, a Presidential member, in the conduct of a review of an Arbitrator’s decision, has all of the evidence before him or her that was before the Arbitrator, and may take it into account as relevant and appropriate, in the determination of the appeal.
I propose to review the decision of the Arbitrator having regard to the grounds of appeal, on the basis of the evidence that was before him, and to determine the Appeal in accordance with section 352 (5) and (7) of the 1998 Act.
SUBMISSIONS
Appellant Employer’s Submissions
The Royal submits:
“The worker alleged that he sustained a psychological injury that arose out of or in the course of his employment with the respondent employer on 16 March 2004. The worker also relied upon the nature and conditions of his employment between April 1997 and 27 March 2007. The nature of the injury was alleged to be a disease within the meaning of s15, or in the alternative, s 16 of the Workers Compensation Act 1987.”
The Royal further submits that the Arbitrator referred to a number of areas of concern raised by Mr Cassar, which he perceived as harassment and unfair treatment involving certain procedures, lack of support, accumulation of annual leave, rostering of staff, swapping shifts, staff turnover, completion of reporting forms, and allocation of time between clients. It submits that the Arbitrator concluded that on the whole, he did not believe these claims, but where some genuine issue emerged, any concerns were dealt with appropriately.
In the circumstances, the Royal submits therefore, that the Arbitrator has rejected Mr Cassar’s claim that he sustained any psychological injury as a result of the nature and conditions of his employment. The Royal says that it does not challenge this finding.
The Royal submits that the Arbitrator further found that Mr Cassar sustained an injury as a result of an incident that occurred on 16 March 2004, “pertaining to an altercation that occurred between the worker, Mr Kim and Mr Chau.”
It disputes the weight given to Ms Zoe Brownfield’s evidence as to what occurred on that date, as she was not actually present during the course of the meeting between Mr Cassar, Mr Kim and Mr Chau. It submits that she only heard the altercation begin, therefore little significant weight should be attached to her version of events, particularly when the Arbitrator was provided with statements by Messrs Kim and Chau, who were both present at the meeting.
The Royal submits that at [22] of the Arbitrator’s Reasons, he says that in determining whether to accept Mr Cassar’s version of events, or the evidence provided by the employer representatives, he was assisted by the volume of supportive comments provided by Mr Cassar’s clients and co-workers.
The Royal submits that Ms Daisley was unable to provide a precise account of the altercation that occurred on 16 March 2004, “presumably because she was not present at the meeting …”. Ms Daisley made a number of criticisms of management and the way in which Mr Cassar was treated, that were similar to those made by Mr Cassar, and which the Arbitrator rejected. The Royal submits that no weight ought to have been given to Ms Daisley’s evidence in determining whether to accept Mr Cassar’s version of events at the meeting in question.
It is further submitted that the Arbitrator, having determined “that the worker’s allegations of perceived harassment and unfair treatment over the years had not been made out, was not then entitled to rely upon Ms Joan Matterson’s evidence of such allegations in support of Mr Cassars’s version of events of 16 March 2004.”
The Royal submits that no weight should be given to the declaration provided by Mr Sebo, dated 9 March 2005, as it is “unclear when Mr Sebo was employed, he has provided no particulars to support his generalised allegations of ‘draconian and intimidating methods’, nor does he claim to have been present on the day of the incident, on 16 March 2004.”
The Royal does not dispute that Mr Cassar was concerned for his clients and was willing to support them to the best of his ability. However, it sees no relevance between this and to a determination of what occurred on 16 March 2004.
The Royal disputes that there was adequate evidence to support the Arbitrator’s finding that Mr Kim had an overly assertive and threatening management style, which was capable of causing Mr Cassar to sustain a psychological injury on 16 March 2004. It submits that the Arbitrator failed to have proper regard to the weight of the evidence, and that he based his findings on incorrect assumptions with respect to the facts.
The Arbitrator found that Mr Cassar suffered an injury within the meaning of section 16 of the 1987 Act, “being an aggravation or exacerbation of his existing schizoid condition.” The Royal submits that the Arbitrator acknowledged that Mr Cassar was involved in a non work-related motor cycle accident on 11 January 2000, as a result of which he sustained physical injuries and significant psychological difficulties.
The Royal submits that there was nothing untoward in the behaviour of either Mr Kim or Mr Chau on 16 March 2004. They each had a responsibility to investigate accounts of injury sustained within Abbotsford House. It submits that when Mr Cassar was asked for feedback about the incident and to provide an incident report, he became very agitated and angry. It is maintained that this evidence is uncontested. The only evidence in support of Mr Cassar’s version of events is that of Ms Brownfield, who was not present at the meeting and only “heard” the altercation. The Royal submits again that the Arbitrator was in error in accepting that version of events.
In terms of the decision to re-deploy Mr Cassar, communicated to him by letter of 26 March 2004, the Royal submits that the intention to re-deploy him was the subject of discussions prior to that letter, contrary to Mr Cassar’s evidence. It states, “Indeed, at paragraph 31 of the Arbitrator’s decision, he has referred to an email from Ms Clara Barton dated 16 September 2003, in which redeployment to a house suitable for his physical restrictions was discussed with the worker. The worker refused to consider redeployment and maintained that he would ‘resign if we redeployed him.’”
Ms Barton says in her statement of 8 December 2005 that Mr Cassar was aware that he would be redeployed to another house “when he had finished his field placement and studies. Attempts were made to locate a position which would take into account the worker’s physical disabilities.” The Royal submits that Mr Chau’s statement also suggests that the worker was aware that he was to be redeployed in accordance with established policies and procedures, and that he was not happy about the decision. It further submits that Mr Kim also notes that Mr Cassar knew that he was to be redeployed.
The Royal asserts that Mr Cassar signed a job specification and statement of duties on 3 April 1997, in which he acknowledged that he would be rostered to work in one or more community houses as determined by the program.
The Royal submits that the Arbitrator’s finding at [32] of his Reasons, that the letter from Mr Kim was a “clumsy directive, aimed at permanently removing the applicant from Abbotsford without consultation or consideration of what he had achieved …”, was made without proper regard to the weight of the evidence before him. It further submits that such redeployment, within Mr Cassar’s physical restrictions, in accordance with accepted policy and practice, was reasonable action taken, or proposed.
The Royal disputes that employment was a substantial contributing factor to Mr Cassar’s psychological “decompensation”. The factors listed in section 9A(2) of the 1987 Act to be taken into account, include the probability that the injury “would have happened anyway and the worker’s state of health before the injury.”
It is submitted that Mr Cassar’s reaction to the questions posed by Messrs Kim and Chau, is explained by his pre-existing psychiatric disorder, diagnosed by Dr Parmegiani in his report of 18 August 2003, as an adjustment disorder with mixed anxiety and depressed mood. It also points to the report of Dr Samuell, psychiatrist, qualified by the Royal, who examined Mr Cassar on 4 September 2007, which indicates a diagnosis of psychotic illness that was completely constitutional in origin.
Dr Teoh, psychiatrist, examined Mr Cassar in his capacity as an Approved Medical Specialist on 23 March 2006. Dr Teoh diagnosed him as suffering from an adjustment disorder, with anxious and depressed mood. However, the Royal submits that Dr Teoh concluded that Mr Cassar’s employment was not a substantial contributing factor to his condition, but on the contrary, his difficulties were more likely related to his personality rather than to the manner in which his employer treated him.
In conclusion, the Royal submits that the weight of the medical and factual evidence does not support a finding that the events of 16 March 2004, together with the notification that Mr Cassar was to be redeployed to another home, were a substantial contributing factor to any aggravation, exacerbation or acceleration of a pre-existing psychological disorder found to be suffered by Mr Cassar.
The Respondent Worker’s Submissions
Mr Cassar submits that the Appeal “ought to be dismissed and the decision of [the Arbitrator] be confirmed or alternatively that the award made by the arbitrator be confirmed but the arbitrator’s reasons for decision and findings be varied in accordance with the respondent worker’s ‘Notice of Contention’ attached.”
Mr Cassar submits that the Arbitrator did not err as alleged in the grounds of appeal.
He submits further, that his psychological injury was caused in part by the events of 16 March 2004 and the subsequent letter of redeployment dated 26 March 2004, but also by the additional events outlined in his statement, and that the Arbitrator ought to have so found.
Mr Cassar asserts that Ms Brownfield’s evidence as to the events of 16 March 2004 ought to be accepted, contrary to the Royal’s submission, because it accords substantially with his own evidence and the version given by Ms Daisley. He states, “Each was within the home and each heard raised voices and each confirmed Mr Kim had said to the applicant worker ‘I cannot accept this’ in relation to the injury sustained, by Ms Daisley reported on the injury report form. Each reported that the applicant worker had recorded word for word what Ms Daisley had dictated. (Transcript p16 line 25 and p 18 line 14 and p 23 line 43).”
He further submits at [11] of his submission on appeal, “The arbitrator found the applicant thoroughly supported by the statements filed in his application being statements of Ms Daisley (who attended and gave oral evidence (Transcript p 2 to p 32)), Joan Matterson, Michael Sebo and Ms Zoe Brownfield.”
Mr Cassar submits that the evidence of Mr Kim and Mr Chau is open to doubt.
He asserts in submissions on appeal:
·Mr Kim states at paragraph 28 of his statement that there was no opportunity to have a discussion with the clients of the House before Mr Cassar handed him an incident statement, whereas Mr Chau states at paragraph 24 of his statement that the incident statement was handed to them after discussion with “one of the clients”;
·their evidence is in conflict with that of Ms Daisley and Ms Brownfield in terms of their discussion with Mr Cassar regarding the veracity of the incident report (paragraph 32 of Mr Kim’s statement);
·the sequence of events differs in a significant way as between the statements made by Mr Kim and Mr Chau, and is contrary to the evidence given by Ms Brownfield and Ms Daisley (paragraphs 35 and 35 of Mr Kim’s statement);
·Mr Kim’s statement at [36] of his statement that Mr Cassar “wouldn’t listen to me and kept on shouting and going in and out of the client’s bedroom which prevented us from conducting any kind of discussion with the client” is contrary to the evidence of Mr Chau, Ms Brownfield and Ms Daisley;
·Mr Kim’s evidence at paragraph 37 of his statement is contrary to the evidence of Ms Brownfield and Ms Daisley;
·Mr Cassar denies that he knew of any proposal to redeploy him before the incident of 16 March 2004, and this is evident from paragraph 22 of Mr Kim’s own statement;
·Mr Kim’s apparent position (see paragraphs 41-43 of his statement) regarding the redeployment, that Mr Cassar would be transferring to lighter work, is contrary to the evidence of Mr Cassar, Ms Daisley and Mr Warr, and in fact it would appear to be heavier work;
·Mr Kim’s statement at paragraph 44 of his statement that he had earlier discussions with Mr Cassar about redeployment from Abbotsford, are denied;
·Mr Kim’s statement at paragraphs 51 and 53 of his statement that there were no personal issues between himself and Mr Cassar, is contrary to the evidence of Mr Cassar and of Mr Chau, as well as Ms Brownfield;
·Mr Cassar submits that Ms Daisley did give a precise account of the altercation of 16 March 2004, and the Royal’s contrary submission is without merit;
·contrary to the Royal’s submission at paragraph 13(b) of its submissions on appeal, the Arbitrator did not determine that “the worker’s allegations of perceive harassment and unfair treatment over the years had not been made out”: the Royal has misinterpreted or misconceived the finding, in that the Arbitrator merely found that the claim(s) in respect of the allegations were not made out, not that the allegations themselves were not made out;
·Mr Kim’s attitude and assertive behaviour towards Mr Cassar, and his offensive stance in the face of the incident report regarding Ms Daisley, was inappropriate, particularly as demonstrated on 16 March 2004;
·Mr Cassar submits that there is ample evidence to support the view of the Arbitrator that Mr Kim had an overly assertive and threatening management style, and cites evidence given by himself, Ms Brownfield and excerpts from the transcript of the proceedings before the Arbitrator (pages 76-79);
·Mr Cassar submits that the Arbitrator did not make the finding pursuant to section 16 of the 1987 Act, that the Royal states at paragraph 15 of its submissions on appeal, and that the Arbitrator “made further relevant findings at paragraph numbered 34 of the Reasons for Decision” [The Arbitrator’s finding is made at [29] of his Reasons];
·referring to paragraph 16 of the Royal’s submissions on appeal, Mr Cassar states that the Arbitrator gave reasons for and was correct in, his acceptance of the evidence of Mr Cassar and his witnesses over the evidence of Mr Kim and Mr Chau, and consequently, the Arbitrator did not err as alleged;
·Mr Cassar concedes that there was some communication with Clara Barton in 2003 about the prospect of redeployment, on which occasion he indicated that he was not willing to comply, but he did not agree that Putney House was suitable, nor were there ever any discussions or dealings with Mr Kim about redeployment;
·Mr Cassar submits that his earlier dealings with Ms Barton are not inconsistent with his evidence about the attempt to redeploy him on 16 March 2004;
·Mr Kim’s statement at paragraph 22 acknowledges that redeployment was “not formally discussed with Peter” and this contradicts his later assertions to the effect that Mr Cassar was aware that he was to be redeployed;
·having regard to the whole of the circumstances of his employment, incidents and events during the course of his employment and his psychological/psychiatric condition caused by work with the Royal, it was not reasonable action to redeploy him without prior notice, discussion or planning “particularly when he was absent and on sick leave due to stress and illness as a result of the incident on 16 March 2004”;
·contrary to the Royal’s submission at paragraph 24 of its submissions on appeal, Mr Cassar submits that the Arbitrator had proper regard to the weight of the evidence before him;
·Mr Cassar submits that his good service as an employee has been widely recognized and this has been acknowledged even by Mr Kim. In relation to Section 9A of the 1987 Act, Mr Cassar submits:
“There is factually no reason to doubt that he was or would have been adversely affected in his capacity to perform his pre-injury duties by his pre-existing physical injuries (left leg) and psychological condition but for the acts and commissions of the appellant complained of by the respondent worker as the basis for his psychiatric injury.”
·Mr Cassar denies that his “reactions” to questions by Mr Kim and Mr Chau was explained by his pre-existing condition, and submits that the Arbitrator’s findings are correct on the evidence, and in particular, the medical evidence, which he considers at [24] – [28] and [36] & [37] of his Reasons;
·Mr Cassar submits that the evidence of Dr Teoh, referred to by the Royal, must be considered along with the whole of the evidence and not in isolation. This is particularly so as Dr Teoh qualified his opinion by indicating that the veracity of Mr Cassar’s complaints need to be evaluated further. Dr Teoh also stated that Mr Cassar’s personality traits would make him vulnerable to working with others and in particular, with people in authority. Dr Teoh has not carried out the process sufficiently to substantiate his view that employment was not a substantial contributing factor, and he cites the talem qualem principle whereby employers take their employees as they find them “both in workers compensation law and the law of negligence’;
·with regard to section 9A of the 1987 Act, Mr Cassar cites State Transit Authority of New South Wales v Fritzy Chemler [2007] NSWCA 249; Townsend v Commissioner of Police (1992) 25 NSWCCR 9; and Yeo v Western Sydney Area Health Service (1999) 17 NSWCCR4 573. He submits that the Arbitrator “does appear to have carried out the process”, and finally
·Mr Cassar submits that, contrary to the Royal’s submissions, the evidence and the weight of the evidence does support the Arbitrator’s finding of injury.
There was a good deal of detailed documentary and oral evidence before the Arbitrator in this matter, along with submissions made to him over two days, being 11 October 2007 and 30 October 2007, which has been noted.
DISCUSSION AND FINDINGS
The issues in dispute in this Appeal come down to two questions:
(1)Did the Arbitrator err in law in finding that Mr Cassar sustained an injury arising out of or in the course of his employment with the Royal, within the definition of injury in section 4 of the 1987 Act?
(2)Did the Arbitrator err in law in finding that his employment with the Royal was a substantial contributing factor to Mr Cassar’s injury, as provided by section 9A of that Act?
With regard to both issues, the Royal submits that the Arbitrator did not base his decision on logically probative evidence in that he failed to have a proper regard to the weight of the evidence, and that he based his findings on incorrect assumptions with respect to the facts.
Did the Arbitrator err in law in finding that Mr Cassar sustained an injury arising out of or in the course of his employment with the Royal?
While the parties disagree as to the precise nature of the Arbitrator’s findings with regard to Mr Cassar’s statement dated 12 May 2006 that “covered the various incidents and issues that the Applicant claimed gave rise to his present injuries”, the Arbitrator found that, taken as a whole, these claims were not made out, or where some genuine issue was raised, they were appropriately investigated and properly dealt with by the Royal. I agree with Mr Cassar that taken in the context of this dispute, the Arbitrator’s words at [7], “… issues that the Applicant claimed gave rise to his present injuries …” has the meaning that he attributes to them, that is the Arbitrator determined that “the claim(s) [in terms of injury] in respect of those allegations have not been made out; not that the allegations have not been made out.”
The Arbitrator addresses the mass of evidence, information, submissions and other material briefly in arriving at his finding at [8] of his Reasons, making pertinent observations in the ensuing paragraphs. In [7] he surmises, “It may be that as a result of that overwhelming sense of commitment and single mindedness that the Applicant found himself in dispute with management of CIP over a number of work related issues.” In [9] he makes some brief observations in terms of Mr Cassar’s motivation and method of operation in the context of his working environment. In [10] and [11] he states:
“10.Dr Ben Teoh, AMS who examined the Applicant on 23/3/2006 in relation to a previous application for seeking permanent impairment, was of the opinion that the Applicant had:
‘… a premorbid personality characterised by significant obsessional features, and that he has poor interpersonal skills. He also has paranoid features of his personality. He has a sense of entitlement and grandiosity. These personality traits would make him vulnerable to having problems working with others, and particularly people in authority.’
11.I accept these comments as providing a useful guide to understanding the Applicant’s operational style and the ensuring [sic] difficulties, which he encountered in his work with the Respondent. However, the Applicant was able to operate in his own way for some 7 years.”
The Arbitrator demonstrates an appreciation of the tensions that existed in the workplace, and of Mr Cassar’s psychiatric/psychological condition, prior to the events of 16 March 2004 and the letter that followed, dated 26 March 2004. The basis of his determination as to the issue of injury is found in [29], [32] and [34]. It is clear that the Arbitrator concludes that the injury was “directly” caused by, and it “specifically occurred” as a result of the incident of 16 March 2004 and the subsequent letter dated 26 March 2004, sent by Mr Kim to Mr Cassar, regarding redeployment. Given what has been said in [72] above, the Arbitrator essentially found that the preceding issues and incidents in the workplace were not determinative of Mr Cassar’s claim of injury, but it is obvious that he regarded all of that, with good reason, as fertile context and background (see Buxton v Bi-Lo Pty Ltd (1998) 16 NSWCCR 234 at 249; Melder vAusbowl Pty Ltd (1997) 15 NSWCCR 454 at 458). What is also clear, and is supported by the evidence, is that Mr Cassar had a particular view and way of doing things, that while highly focussed, and commendable in many respects, did not sit well at all times with supervisors, and with broader management and operational priorities. According to the evidence, perspectives, perceptions and attitudes differ depending upon the point and angle of observation of the various individuals involved. The Arbitrator was required to, and obviously did, assess much of the evidence and the weight of that evidence, against this background.
It is not disputed that Mr Cassar had an “underlying condition”, and it is clear and undisputed that the Royal was aware of it (see [30] of the Arbitrator’s Reasons).
Although Mr Cassar considers that the Arbitrator ought to have had greater regard to the considerable number of incidents and events that occurred over the length of his employment with the Royal, and the cumulative effect of them, the Arbitrator did take all of this into account, without finding that it was actually a direct or specific cause of injury. He attributes causation to the incident of 16 March 2004 involving Mr Cassar, Mr Kim and Mr Chau, and to the letter of 26 March 2004, regarding redeployment, written to Mr Cassar by Mr Kim.
There are broadly, two “views” of the same incident that took place on 16 March 2004.
At page 7 of his statement of 12 May 2005, Mr Cassar alleges that Mr Kim spoke to him in a threatening manner, when left alone together in a meeting that took place in November 2003. Mr Kim posits that generally, there were no problems between himself and Mr Cassar prior to 16 March 2004. Mr Cassar does not hold the same view. In relation to this, I note in particular the Arbitrator’s comments at [11] – [15] and [21] – [23] of his Reasons, and the documents referred to by him.
In outlining his version of the events of 16 March 2004, Mr Cassar says that although he was not feeling well he went to work on that day. He commenced work at 6.30 am “as usual” and intended to leave at 9 am to consult his doctor. He attended on Ms Daisley, who informed him that she had been in pain all night and remained so. He states:
“… she stated that the evening carer (agency staff) hurt her while he was putting the bedpan under her while she was in bed. While transferring Miss Daisley from her bed to her shower chair she asked me to have a look at her buttock to check for possible damage to her skin. I discovered a skin break about the size of a twenty cent piece on Miss Daisley’s left buttock, this area was very red in colour, raw and exposed, and the skin was missing from it. I informed Miss Daisley about this, she asked me to assist her to fill out an Incident Report form so she could report the incident which took place the previous evening, which she said caused her injury. I assisted Miss Daisley with the Incident Report and wrote down exactly word for word what she had dictated to me.
At 9.00 am I rang Mr Joshua Kim to inform him I was feeling unwell and that I wanted to go and visit my doctor as soon as he could arrange a replacement person; I also briefly discussed the incident. Mr. Kim said that he would ring me back to let us know when the replacement person would be coming. Mr Kim rang about twenty minutes later and told me he could not find anyone to replace me and that he would come himself; he also asked if I could stay until he arrived as he wanted to talk to me about the incident, I agreed.”
Mr Cassar states that Mr Kim duly arrived and was accompanied by Mr Andrew Chau, whom he described as CIP’s Clinical Nurse Specialist “and at the time he was acting (Deputy Director)”. After a brief discussion about the incident involving Ms Daisley, Mr Kim and Mr Chau left the office where Mr Cassar remained. They went to Ms Daisley’s room to speak to her. Mr Cassar said that while he could not hear clearly what was being said, he did hear raised voices and believes that Mr Kim and Mr Chau were upsetting Ms Daisley. He states that she is normally a softly spoken person due the nature of her disability “and I have only ever heard her raise her voice when she has been extremely upset or felt she was in some type of danger.”
He states that Mr Kim and Mr Chau returned a short time later and Mr Kim said that the injury could have happened for many reasons. Mr Cassar says that he informed Mr Kim that he believed Ms Daisley’s account and that he stood by it. He states that Mr Kim prepared a statement about what took place and that his statement is “untrue and is an assault of my professional and personal integrity. Mr Kim’s statement makes me out to be a liar and is damaging to my character in ways, and I want for it to be addressed and corrected.”
Mr Cassar alleges that Mr Kim had bullied and harassed him earlier in 2004.
In her statement of 7 November 2004, Ms Zoe Brownfield, a Volunteer Scribe, said that she was present when Mr Cassar checked with Ms Daisley to ensure that he had correctly recorded the information she gave him, in the Incident Report. Ms Brownfield, states that Ms Daisley agreed with it and signed the document. She says that Mr Kim and Mr Chau were in the House office, where Mr Cassar took the Incident Report. She says that she heard an altercation begin “with raised voices as Mr Kim doubted the veracity of the Report, though Peter Cassar repeated that it was exactly what the client had dictated, which I can confirm. At no stage did I hear any swearing. Then Peter Cassar left.”
Relevantly, Ms Brownfield states that Mr Kim and Mr Chau entered Ms Daisley’s room, ignoring her (Ms Brownfield) and discussed the matter. Mr Kim declared in her presence that the report could not be accurate that that the damage could not have occurred in the way it was described. They asked Ms Daisley if they could inspect her buttocks but she declined the request. They then left the room.
Mr Brownfield’s account supports the account given by Mr Cassar. The discussion that took place between Mr Kim and Mr Chau, and subsequently with Ms Daisley, occurred in her presence, and further supports Mr Cassar’s evidence.
In her statement of 21 March 2006 Ms Brownfield states that she heard raised voices whilst discussing the client’s (Ms Daisley’s) tear to her buttocks. She heard Mr Kim say, “I cannot accept this.” She states that she then heard Mr Cassar say, “that is exactly how the client told me.” She states that the voices became louder but she could not discern what was being said. She then heard someone say, “Don’t raise your voice to me.” Mr Kim and Mr Chau then entered the room of Ms Daisley.
The evidence of Mr Kim and Mr Chua is in most respects, similar. They claim that Mr Cassar presented them with an Incident Report about Ms Daisley. They assert that Mr Cassar came into the office and accused them of not believing him. They said that he was shouting before being told to leave the premises. They maintain that he used “more abusive language” and then left. In his statement of 4 April 2005 Mr Kim asserts that before this incident, Mr Cassar had been made aware that he was to be redeployed to a group home in Perry Street, Putney. He says that he had never received any complaint from Mr Cassar about this proposed redeployment.
Mr Kim states that on 16 March 2004, Mr Cassar entered the office while he was having a “private conversation” about the matter with Mr Chau. However, Mr Chau says that Mr Cassar was already in the office with Mr Kim when he came in to discuss the matter with Mr Kim. Mr Chau states that Mr Cassar became angry when he (Mr Chau) “queried the actual cause of the skin tear”. He says that he became agitated and very abusive. He alleges that Mr Cassar would not listen and began to swear. Essentially, this accords in most respects with Mr Kim’s version of events.
The evidence of Mr Cassar, Ms Brownfield and Ms Daisley is consistent in terms of what they said occurred. On the other hand, the evidence of Mr Kim and Mr Chau is substantially consistent, in terms of their version of events. I do not agree with the Royal that the evidence of Ms Brownfield and that of Ms Daisley should be afforded little weight. Both Ms Brownfield and Ms Daisley were either present or in the near vicinity of discussions that took place, even though they did not hear every word. However, they heard enough to be able to substantially verify Mr Cassar’s account.
Broadly speaking, there is little real difference between that evidence and the evidence of Mr Kim and Mr Chau, in most respects. Obviously, a discussion took place. There is no dispute as to the subject matter of the discussion. There is no dispute that the contents of the Incident Report were challenged. Obviously, Mr Cassar became upset. Obviously voices were raised. Mr Kim and Mr Chau assert that Mr Cassar was abusive when they queried the contents of the Incident Report. Nevertheless, all three of them were engaged in a somewhat loud and heated discussion. Both Ms Brownfield and Ms Daisley attest to the fact that voices were raised in what was clearly, a heated exchange. The fact that all three men, and not only Mr Cassar, were primarily involved in that heated exchange is clearly established.
There is no dispute that Mr Cassar was quite distressed by this incident, having earlier indicated to Mr Kim that he had come to work notwithstanding that he was unwell, and wished to leave work to visit his doctor.
In my view, and I find that, it was open to the Arbitrator, based upon the evidence and giving appropriate weight to that evidence, to conclude that Messrs Cassar, Kim and Chau were engaged in a heated discussion, in which differences of opinion were being aired, and in which voices were raised, on 16 March 2004. This obtains some additional support by reason of the background and history of Mr Cassar’s employment, his somewhat uneasy relationship with his supervisors, previous exchanges between Mr Cassar and Mr Kim, Mr Cassar’s “underlying condition”, and the general evidence of other witnesses, to which the Arbitrator alluded in his Reasons.
Nevertheless, the Royal submits that there was insufficient evidence to support the Arbitrator’s finding that Mr Kim had an overly assertive and threatening management style, which was capable of causing Mr Cassar to sustain a psychological injury on 16 March 2004. It asserts that the Arbitrator failed to have proper regard to the weight of the evidence, and that he based his findings on incorrect assumptions with respect to the facts.
Mr Kim and Mr Chau knew that Mr Cassar had attended work on 16 March 2004, notwithstanding that he was feeling ill and intended to consult his doctor later that morning. They were aware of the fact and nature of his underlying and ongoing psychiatric condition. They knew of, and have acknowledged, his highly focussed commitment and dedication to the clients of the organisation. They knew that Mr Cassar’s view of the workplace, its priorities and its operations were somewhat different to their own. They knew that the issue of a proposed redeployment had been raised with Mr Cassar in 2003 and that he had expressed strong opposition to it at that time (although Mr Kim states that Mr Cassar’s objections had never been raised directly with him). All of this created a degree of tension in the workplace and in workplace relations, culminating in the events of March 2004. The detail of all of this was in evidence before the Arbitrator who made it clear that it was relevant background in relation to the dispute before him.
It is difficult to understand, in these circumstances and in light of their knowledge of Mr Cassar’s underlying condition and outlook, why Mr Kim and Mr Chau would engage in a heated exchange with him as to the merits of Ms Daisley’s Incident Report. It was clear enough that Mr Cassar had simply recorded what Ms Daisley had told him. The evidence is that they initially discussed the matter with Ms Daisley, who insisted that her account as recorded by Mr Cassar was true. Arguing about the accuracy of it with Mr Cassar was a pointless and unproductive exercise. It could add nothing. He was not a witness to the incident. Mr Cassar’s reaction (the extent of which is uncertain because of conflicting evidence), which led to and was part of the heated exchange, was entirely predictable.
Mr Kim’s letter of 26 March 2004, so soon after the unfortunate events of the 16 March 2004, knowing how it would be viewed by Mr Cassar, and with some informed apprehension of the impact that it was likely to have upon him, particularly while he was absent on sick leave, was inappropriate and inadvisable at least, and perhaps even somewhat provocative. Any expectation that Mr Cassar could or would deal with the matter at that particular time, in a rational and reasoned way, was misconceived and unreasonable, if indeed that was the expectation at all. The outcome in terms of the impact on Mr Cassar was at least reasonably predictable.
While Mr Cassar states that he was “unaware of any redeployment that Mr Kim describes”, I take that as meaning that he did not know of any immediate intention to redeploy him at that particular time. It is clear that the matter had been raised with him generally, in 2003.
In any event, Mr Cassar did not return to work with the Royal, following these events.
Whether or not the Arbitrator’s description of Mr Kim’s management style as “overly assertive and threatening” is an accurate description, the fact remains that upon a consideration of the whole of the evidence and the weight properly attributed to it in this matter, his conclusions are soundly based, notwithstanding the precise language of his description. Indeed, the way all of this was managed in light of knowledge and insights held by management, renders any consideration of it much wider than merely in terms of “style”. This is particularly so when the evidence is viewed having regard to the circumstances and context in which the relevant events occurred.
I find that the Arbitrator’s findings and conclusions were soundly based upon the evidence and the weight of the evidence before him.
The “defence” in section 11A of the 1987 Act is not raised as an issue in this appeal, notwithstanding that much of what has been said above would have been relevant to a consideration of that issue.
I am satisfied that the Arbitrator was correct in finding that the injury suffered by Mr Cassar falls within the definition of injury in section 4 of the 1987 Act, as including:
“(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration …”.
As already stated, there is no dispute as to Mr Cassar’s underlying psychiatric condition. It was known to the Royal, and Mr Cassar’s perception of, and responses to, what occurred must have been reasonably anticipated. His “vulnerability”, as described by Dr Teoh must have been appreciated, particularly given the expertise and focus of management staff of the Royal, in operating in an environment of disability treatment and management. I note the Arbitrator’s consideration of the Court of Appeal decision in Chemler in terms of Mr Cassar’s “perception of real events”, which is relevant to, and correctly applied, in this matter.
I have viewed the medical evidence and consider that the Arbitrator has briefly but adequately dealt with it. It requires little further elaboration, having regard to the obvious background and context from which this matter arose. Mr Cassar’s underlying condition cannot be attributed to the Royal, but nevertheless, the condition was real and the Royal was well aware of it. I note that it is not found that employment was a substantial contributing factor to Mr Cassar’s underlying psychiatric condition. The Arbitrator determined the dispute with that in view.
I concur in the Arbitrator’s findings at [34] of his Reasons.
In the circumstances, I find no error on the part of the Arbitrator. This ground of appeal is not made out.
Did the Arbitrator err in law in finding that Mr Cassar’s employment with the Royal was a substantial contributing factor to his injury?
The Royal suggests at [26] of its submissions on appeal that the injury would have happened anyway, and further, that the workers state of health before the injury should be taken into account.
As to the first of these propositions, I generally agree with Mr Cassar’s submission:
“There is factually no reason to doubt that he was or would have been adversely affected in his capacity to perform his pre-injury duties by his pre-existing physical injuries (left leg) and psychological condition but for the acts and omissions of the appellant complained of by the respondent worker as the basis for his psychiatric injury.”
As to the second, Dr Teoh’s opinion that employment was not a substantial contributing factor to Mr Cassar’s condition is not determinative of that issue, and must be considered by the Arbitrator, along with the rest of the evidence in the case. The Arbitrator has carried out that function adequately, in my view. Mr Cassar points to Chemler, considered by the Arbitrator as set out in his Reasons, and the statement of Spigelman CJ at [40] with regard to the talem qualem principle, that is, that employers take their employees as they find them.
In any event, the actions of Mr Kim in particular were taken in the full knowledge that Mr Cassar had an underlying psychiatric condition, and with the advantage of his experience with him in the workplace. It is entirely reasonable that he should have anticipated the consequences of his heated exchange with, and the entirely inappropriate timing of his subsequent letter to, Mr Cassar in the prevailing circumstances at that time.
It was reasonable for the Arbitrator to conclude on the evidence that the exacerbation of Mr Cassar’s underlying injury was directly caused by these events, whatever Mr Kim’s precise knowledge of previous discussions about redeployment. The heated exchange with Mr Cassar about the contents of a document of which he was not the author on 16 March 2004, and the contents of the letter of redeployment, a sensitive issue at the best of times, sent almost immediately to Mr Cassar while he was on sick leave, in light of the medical and other evidence, all supports Mr Cassar’s claim of injury, and that his employment was a substantial contributing factor to that injury.
In my view, the Arbitrator’s findings and determination are soundly based upon the evidence and the weight of the evidence that was before him.
I find that the Arbitrator’s finding that Mr Cassar’s employment with the Royal was a substantial contributing factor to his injury (within the definition of section 4 of the 1987 Act), pursuant to section 9A of the 1987 Act, was correct.
In the circumstances, I find that the Arbitrator has made no error as alleged. This ground of appeal fails.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 26 November 2007 is confirmed.
COSTS
The Appellant Employer is ordered to pay the Respondent Worker’s costs of appeal.
Gary Byron
Deputy President
7 April 2008
I MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEPUTY PRESIDENT GARY BYRON OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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