Sapina v Coles Myer Limited
[2008] NSWWCCPD 8
•18 January 2008
WORKERS COMPENSATION COMMISSION
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| STATUS: Remitted on Appeal: This decision has been the subject of a remitter from the Court of Appeal: see Sapina v Coles Myer Limited [2009] NSWCA 71 | |||
| CITATION: | Sapina v Coles Myer Limited [2008] NSWWCCPD 8 | ||
| APPELLANT: | Sylvia Sapina | ||
| RESPONDENT: | Coles Myer Limited | ||
| INSURER: | Self insured | ||
| FILE NUMBER: | WCC4331-07 | ||
| DATE OF ARBITRATOR’S DECISION: | 18 September 2007 | ||
| DATE OF APPEAL DECISION: | 18 January 2008 | ||
| SUBJECT MATTER OF DECISION: | Section 11A of the Workers Compensation Act 1987; causation of psychological injury; finding of reasonable action not based on the evidence; irrelevant consideration; basis for amount of weekly payments. | ||
| PRESIDENTIAL MEMBER: | Acting President Gary Byron | ||
| HEARING: | Determined ‘on the papers’ | ||
| REPRESENTATION: | Appellant: Walker Legal | ||
| Respondent: Lander & Rogers | |||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 18 September 2007 is revoked, and the following order is made in its place:. | ||
| 1. Award for the Respondent Employer. | |||
| 2. No order as to costs. | |||
| No order made as to the costs of this Appeal. | |||
BACKGROUND
On 16 October 2007 Ms Sylvia Sapina, the Appellant Worker, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 September 2007.
The Respondent to the Appeal is Coles Myer Limited.
Coles Myer Limited is and was at all material times, self-insured.
Coles Myer employed Ms Sapina in July 1997 as a shop assistant in the delicatessen of its supermarket at Merrylands. Two and a half years later, Ms Sapina requested a transfer to the Epping store where she was appointed to the position of Delicatessen Manager, supervising eight other people. Some time later her marriage broke up and she sought a further transfer to the Cambridge Gardens store so that she could be near her sons. Some difficulties occurred at work at Cambridge Gardens, and she then requested a further transfer to the St Marys store.
Following a conflict at the Cambridge Gardens store, Ms Sapina submitted a complaint to the Human Resources section of Coles Myer, alleging that the Store Manager had discriminated against her and bullied her. She transferred to the position of Delicatessen Manager at the St Marys store in April 2004. She claimed within two weeks that the Store Manager’s behaviour towards her made her feel belittled and uncomfortable. Subsequently, she submitted a claim for payment of workers compensation, which was rejected.
Ms Sapina took nine weeks off work, and upon her return to duty in June 2004 she was informed that the Store Manager had transferred to another location. She states that everything was fine until September 2006 when a new Store Manager and a Store Support Manager were appointed. Ms Sapina claims that she did not get along with the new Store Support Manager from the outset, and that she was rude to her.
In mid September Ms Sapina suffered a heart scare at a time when she thought that the Store Manager was not happy with her. She claims that the Store Manager harassed her over minor issues and her inability to meet her daily task list. She attributed this primarily, to staff shortages.
On 5 January 2007 the Regional Department Manager visited the store and Ms Sapina was informed that she had failed to date code some stock and to remove a box of stock on which the date endorsed on it, had expired. On 8 January 2007 the Area Manager and the Store Manager inspected the delicatessen, and subsequently, the Store Support Manager informed Ms Sapina that she would be required to attend performance counselling. Following the counselling, she went on sick leave and subsequently submitted a claim for payment of workers compensation, claiming to have incurred a psychological injury at work. Ms Sapina has not returned to work since 9 January 2007.
In her ‘Statement of Reasons for Decision’ (‘Reasons’) the Arbitrator notes at [4]:
“Ms Sapina has experience working in delicatessens that pre-date her employment with Coles. She appears to be a committed employee who is prepared to work additional hours to get her work done and since joining Coles is the recipient of both individual (2000, 2001 and 2004) and team awards (2005 and 2006 relating to increased sales).”
The dispute was allocated to the Arbitrator in due course, who determined the matter on 18 September 2007. It is that decision against which Ms Sapina has filed this Appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 18 September 2007 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.Award in favour of the Respondent in relation to the payment of weekly benefits compensation and medical expenses.
2.No order as to costs.”
ISSUES IN DISPUTE
The appeal principally concerns alleged errors of the Arbitrator in relation to ‘causation’; the assertion that the findings of fact were contaminated by an irrelevant consideration, and that the evidence supports an award in favour of the Appellant for weekly payments for total incapacity.
Having regard to the fact that each party has dealt with these issues on the basis of the grounds of appeal that have been filed, it is convenient to continue to address the issues substantially within that framework, in this Appeal.
The grounds of appeal are:
1.the Arbitrator erred in failing to state the requirement in relation to causation under section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’);
2.the Arbitrator erred in making no findings of fact that would satisfy any relevant test on causation;
3.the Arbitrator’s findings of reasonable action were contaminated by her findings on causation;
4.the Arbitrator’s findings of reasonable action were not open on the evidence;
5.the Arbitrator’s findings of fact in totality were contaminated by an irrelevant consideration, and
6.the parties agreed that the current weekly wage rate was $995.00 per week, and there is no medical evidence to support an award for weekly payments other than for total incapacity.
The Appellant seeks the following orders:
·“Set aside the award of the Arbitrator.
·Enter an award for the applicant for section 60 expenses.
·Enter an award for the applicant for weekly payments at $995.00 per week to 8 July 2007 and thereafter at the maximum rate for an injured worker with no dependants under section 37 of the 1987 Act or alternatively remit the matter to the arbitrator to determine the issue of incapacity.
·Respondent to pay the applicant’s costs.
·Find that the case is complex and both parties to receive an increase in costs of 30 per cent.”
Coles Myer filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ on 23 November 2007, and opposes all grounds of appeal. It seeks the following orders:
·“That the award in favour of the Respondent Employer be confirmed.
·That the Appellant’s appeal be dismissed.
·That the Appellant worker pay the Respondent employer’s costs of the appeal.”
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.
The amount of compensation at issue in the appeal is at least $5000 and is 100% of the amount claimed but not awarded by the Arbitrator. It is agreed between the parties, and I concur, that the provisions of section 352(2)(a) and (b) are satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
APPEAL TO A PRESIDENTIAL MEMBER
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 upon 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).
An Appellant must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; 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 (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56 (‘Askin’); Section 294 of the 1998 Act; YG & GG Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
EVIDENCE, SUBMISSIONS, DISCUSSION AND FINDINGS
Ms Sapina’s submissions on appeal are brief and succinct, and Coles Myer has responded to each, in turn.
Did the Arbitrator err in failing to state the requirement in relation to causation under section 11A of the 1987 Act?
Ms Sapina submits that the Arbitrator failed to say anywhere in her decision that the relevant action taken or proposed to be taken by Coles Myer must be the “whole or predominant” cause of Ms Sapina’s injury, in order for the Coles Myer’s defence to succeed. She submits, “Under the heading of ‘Issues for Determination’ the Arbitrator cited the section 74 dispute notice which itself failed to identify the required causal connection under section 11A.”
Coles Myer submits that Ms Sapina has not suggested that the alleged failure by the Arbitrator to refer to or state the elements to be considered and applied in the application of the section, led to any error “in and of itself”, in the Arbitrator’s decision. It submits further, that Ms Sapina does not assert that the Arbitrator was required by legislation, rule, guideline or practice note to refer to and state the requisite elements to be considered and applied in the application of the section. The Arbitrator did not state the text of the section, “yet there is no suggestion that she did not consider and apply the section in deciding the case.”
Rule 15.6 of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides:
“(1)A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions made.
(2)Without limiting subrule (1), the reasons set out in the statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them”.
The reasons given by an Arbitrator will be adequate, notwithstanding that they do not set out the statutory provisions at length, nor specify and examine all relevant and judicial authority on the matter decided. However, a statement of reasons must set out “with enough clarity, the relevant findings on material questions of fact, the Arbitrator’s understanding of the applicable law [and] the Arbitrator’s application of the law to those findings.” (Askin).
Furthermore, an Arbitrator is not required to refer in detail to the evidence of each and every fact in issue, nor each and every step in the reasoning process (Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424). The requirement for lengthy reasons would be unreasonable and inconsistent with the objectives of the Commission (Liverpool City Council v Trovato [2004] NSWWCCPD 15). However, it is elementary that accurate, relevant and adequate reasons and findings be given.
It would have been preferable and desirable for the Arbitrator to state precisely, the elements to be considered and applied in the application of section 11A of the 1987 Act, using the language of the section. In particular, as submitted by Ms Sapina, the Arbitrator ought to have noted that the relevant and “reasonable” action taken, or proposed to be taken, by Coles Myer, was required to have been the “whole or predominant” cause of the injury in order for the defence under the section to succeed. However, failing to make such a statement in those precise terms is not, of itself, an error that is necessarily fatal to the decision that she made. The more fundamental consideration, as Coles Myer submits, is whether this led the Arbitrator into error in making her decision. Does the omission indicate that the Arbitrator lacked a sufficient understanding of the applicable law? Is she in breach of the requirement in Rule 15.6 (1)(b) and the obligation to properly apply the relevant law (Askin)?
At [22] of her Reasons, the Arbitrator made the following finding, albeit at the conclusion of her discussions on the requirements of section 9A of the 1987 Act:
“I find that the counselling session held on 8 January 2007 is the most significant contributing factor to her injury and if [sic] but for that event she would still be at work. It is now relevant to decide if the actions of the employer in conducting the performance counselling session were reasonable.”
There is no precise finding that “the employment concerned was a substantial contributing factor to the injury”, being the specific issue with which the Arbitrator purported to be dealing, pursuant to section 9A of the 1987 Act. Nor does the Arbitrator actually use the term “whole or predominant” in terms of causality for the purposes of section 11A of the 1987 Act. While the Arbitrator’s finding is not couched in the terms of either of these sections, a reading of that finding in the context of her Reasons, indicates that she had the requirements of sections 9A and 11A in view. Whether or not this is adequate (Askin) and is sufficient compliance with Rule 15.6 may be arguable. This is the essence of Ms Sapina’s Appeal on this ground. However, the Arbitrator’s attempt to convey her meaning in relation to these issues may be indicative of poor written communication and a lack of attention to detail, rather than a failure to understand and/or correctly apply the law.
I note for the record, that Ms Sapina, in this Appeal, raises the point with regard to section 11A, but not section 9A of the 1987 Act.
In making the finding set out at [22] of her Reasons, the Arbitrator focussed upon the “action” of Coles Myer as the employer, that is, the conduct of the counselling session. She then proceeded, in the same paragraph, to say, “It is now relevant to decide if the actions of the employer in conducting the performance counselling session were reasonable.” It is apparent that the Arbitrator, whilst in the process of making and recording that finding, had in mind, and was influenced by the fact, that she was required to move to a consideration of section 11A of the 1987 Act. She ought instead, to have dealt first with section 9A, a discrete but related issue in this matter, and then progressed to section 11A. The Arbitrator was required to address each of these provisions, and in that order, given the relationship between the two sections. Section 11A imposes no liability on an employer where, to the extent that the employment contributed to the injury, that contribution was wholly or predominantly caused by reasonable action with respect to the factors set out in the section (Department of Education & Training v Sinclair (2005) NSWCA 465, per Spigelman CJ at [58] (‘Sinclair’)). [Emphasis added]. If employment is not a substantial contributing factor to the injury, then the claim fails and it is unnecessary to proceed to consider the defence under section 11A.
Insufficient focus, precision, clarity of language, and attention to detail in decision making/writing by an Arbitrator, inevitably gives rise to ambiguity and uncertainty. It is bound to cause confusion, and raise questions as to what is intended in the finding or findings made. The obligation to accurately and clearly articulate findings and reasons for a decision rests with the Arbitrator, and it should not be left to the parties, nor to a Presidential member on appeal, to sift through the whole of the Reasons in an attempt to discern what the Arbitrator really intended, or indeed, whether he or she achieved what was intended. The inclusion of a brief reference to the relevant legislative provision and the elements to be addressed with regard to a particular issue in an Arbitrator’s Reasons, is always prudent, desirable and is elementary, and serves to minimise the potential for ambiguity and assertions of error.
The Arbitrator’s failure to actually state that the relevant action taken or proposed to be taken by Coles Myer must be “the whole or predominant cause” of Ms Sapina’s injury in order for the defence under section 11A of the 1987 Act to succeed, is not determinative on its own. It is insufficient to enable this ground of appeal to succeed on the basis that it is an error that is fatal to the Arbitrator’s decision. However, it may be an indicator as to whether or not, on a reading of the Arbitrator’s Reasons, she correctly applied the law, and sufficiently complied with Rule 15.6.
I treat it on that basis and take it into account, accordingly.
Did the Arbitrator err in making no findings of fact that would satisfy any relevant test on causation?
Ms Sapina’s submissions are specific and refer only to paragraphs 20, 21 and 22 of the Arbitrator’s Reasons.
Ms Sapina submits, with reference to [20]:
“At paragraph [20]: ‘The most likely basis of her difficulties is her sensitivity to feedback which she takes personally and that she experiences difficulty adjusting to events in the workplace.’ In forming this view the Arbitrator relied on the opinion of Dr Peter Anderson, psychiatrist, on page 7 of his report of 1 February 2007 where Dr Anderson referred to the worker as having had difficulties with 3 managers. Dr Anderson referred to the worker’s difficulties so as to explain his diagnosis of adjustment disorder with anxiety and depression. Firstly, Dr Anderson did not say that the worker’s sensitivity to feedback and her difficulties adjusting to events in the workplace were the whole or predominant cause of her adjustment disorder with anxiety and depression. Secondly, ‘the worker’s sensitivity to feedback and her difficulties adjusting to events in the workplace’ are incapable on their face of falling within any of the categories identified in section 11A.”
Ms Sapina submits, with reference to [21]:
“At paragraph [21] the Arbitrator continues: ‘Having come to that conclusion, her diagnosis of adjustment disorder with depressive and anxious mood (sic) relates directly to the events that occurred at the performance counselling session on 8 January 2007.’ Firstly, the Arbitrator misstates the diagnosis. Secondly she makes a finding as to a causal link (ie ‘relates directly to’) that does not satisfy the requirements of section 11A. Thirdly, although she relied on Dr Anderson in support of her conclusions, Dr Anderson does not express a view as to the causal contribution of the performance counselling session. He fails to refer to it as a factor when discussing causation although it is presumably one of the ‘events in the workplace’ to which the worker has difficulties adjusting. Fourthly the arbitrator does not make a finding as to in which category of ‘action’ by the employer under section 11A the performance counselling session fits. It is unclear whether the arbitrator intended to find that the actions fell within the description of ‘discipline’ or ‘performance appraisal’.”
Ms Sapina submits, with reference to [22]:
“At paragraph [22]: “I find that the counselling session held on 8 January 2007 is the most significant factor to her injury and if (sic) but for that event she would still be at work.” Firstly, she again misstates the relevant test. Secondly she confuses the issues of injury and incapacity.”
Coles Myer responds in some detail to each of these submissions. Its submissions are summarised in the paragraphs that follow.
Coles Myer submits that the Arbitrator conducted a thorough review of Ms Sapina’s work history at paragraphs 10 to 20 of her Reasons, and referred to the various documents available to her. The Arbitrator further noted that Ms Sapina, under cross examination, conceded, “ …she failed to complete routine tasks”, and that “…but for the performance counselling sessions she would still be at work.”
Coles Myer submits that in her appeal submissions, Ms Sapina draws a very limited extract from the Arbitrator’s Reasons at [20]. It invites attention to the whole of that paragraph in the Arbitrator’s Reasons, and I have taken note, accordingly. The Arbitrator observed that Ms Sapina had suffered with depression for a number of years and this was not work related. However, she went on to say that Ms Sapina’s perception of work events, or actual work events, might have aggravated that condition. She made a further observation that she found it difficult to believe that Coles employed so many “inept managers and Ms Sapina needs to take responsibility for some of her difficulties.” The Arbitrator also said that it was apparent that Ms Sapina was originally regarded as a model employee, “but the evidence is clear that her performance declined over the years.” She went on to say:
“there are a number of factors that might account for this. In that regard I prefer the evidence and opinion provided by Dr Anderson that the most likely basis of most of her difficulties is her sensitivity to feedback which she takes personally and that she experiences difficulty adjusting to events in the workplace.”
Coles Myer points out that the Arbitrator goes on to say at [21];
“Having come to that conclusion, her diagnosis of Adjustment Disorder with Depressive and Anxious Mood relates directly to the events that occurred at the performance counselling session on 8 January 2007.”
Coles Myer submits that the Arbitrator had the benefit of the ‘Application to Resolve a Dispute’ and the material that accompanied it, in addition to a supplementary statement that was admitted into evidence notwithstanding its objections. It submits that the Arbitrator also had the benefit of observing Ms Sapina under limited cross-examination.
As set out above, Coles Myer submits that the Arbitrator undertook a detailed examination of Ms Sapina’s work history at [10] – [20] of her Reasons, and found that her psychological injury, which would be compensable pursuant to section 11A of the 1987 Act, related directly to the performance counselling session on 8 January 2007. The Arbitrator also observed at [10] that there was “a dearth of medical evidence”.
Coles Myer submits, “The only other substantive medical evidence relied upon by the Appellant was the report of Dr Smith [Psychiatrist] dated 24 July 2007, which the Arbitrator considered in detail at para [sic] 12 of the Arbitrator’s Reasons.” Dr Smith opined that Ms Sapina had no significant history of psychological illness that was not associated with work related matters. However Dr David Loh, Ms Sapina’s treating general practitioner noted in February 2003 that she had experienced depression for the past ten years by reason of personal matters. It is submitted that the Arbitrator is clear at paragraph 20 of her Reasons that she prefers and accepts Dr Anderson’s evidence over Dr Smith’s evidence “due to the incomplete history provided to Dr Smith.”
Coles Myer submits that Ms Sapina is not entitled to raise any complaint or objection to the report and opinions of Dr Anderson, as she herself relied upon this evidence before the Arbitrator. Moreover, it submits that she has not sought to rely upon “any other more cogent or persuasive medical evidence.” Coles Myer asserts that the Arbitrator did not misstate Dr Anderson’s diagnosis, as claimed by Ms Sapina. Dr Anderson describes it as “Adjustment Disorder with Anxiety and Depression”, while the Arbitrator records the diagnosis as “Adjustment Disorder with Depressive and Anxious mood”. It further submits that this “minor” error in phraseology is not claimed by Ms Sapina to have contributed to, or exacerbated any material error to her understanding of the central issue in her appeal, expressed by her as, “the Arbitrator was not entitled, on the evidence, to find that the Appellant’s psychological injury was causally related to the counselling session of 8 January 2007 and further that the employer acted reasonably in respect of that counselling session.” Consequently, the “slight misquotation” of the diagnosis by the Arbitrator did not give rise to any error upon which she based her decision.
In terms of the assertion that the Arbitrator has made a finding at [21] of her Reasons, as to a causal link that does not satisfy the requirements of section 11A of the 1987 Act, Coles Myer submits, citing Sinclair, that the Arbitrator accepted the opinion of Dr Anderson who found that he believed Ms Sapina’s difficulties in adjustment “are difficulties in adjusting to events in the workplace and not to any extraneous cause. I do not believe that she has a constitutional condition.” The Arbitrator therefore accepted that Ms Sapina’s injury was caused in the workplace. She then went on to make findings of fact in relation to the psychological injury, finding at [21] that it related directly to the events that occurred at the performance counselling session on 8 January 2007. At [23] she went on to consider whether Coles Myer had discharged its onus of establishing “its actions in regard to the performance management/discipline were reasonable.” It submits she went on to consider not only that event, but also the events of the three months leading up to that date. At [27] of her Reasons, the Arbitrator concluded that it was reasonable for Coles Myer to take action to formerly draw “these matters” to Ms Sapina’s attention and to develop a plan to help her meet their business expectations. Finally, Coles Myer points incorrectly to [24] of the Arbitrator’s Reasons [but referring to the contents of [33]], where the Arbitrator found that the actions were carried out in a reasonable manner.
Coles Myer further submits that while the Arbitrator did not use the precise words of section 11A(1) of the 1987 Act, “wholly or predominantly caused by”, it is difficult to envisage the Arbitrator being more direct in her language when considering the causal link between Ms Sapina’s psychological injury and the action taken by or on behalf of it as the Employer, when she found at [21] of her Reasons, “Having come to that conclusion, her diagnosis … relates directly to the events that occurred at the performance counselling session on 8 January 2007.”
With regard to Ms Sapina’s assertion that the Arbitrator failed to make a finding as to the category of “action” into which the performance counselling session fits in terms of section 11A, Coles Myer point to [23] of the Arbitrator’s Reasons where she referred to “performance management/discipline” in terms of the reasonableness of its actions. Coles Myer submits that this was not an issue, nor was it raised by Ms Sapina as a point of contention, in the arbitral proceedings. Accordingly, it is submitted that she is not entitled to raise it now on appeal. Moreover, Coles Myer submits that the performance counselling session on 8 January 2007 would most appropriately be categorized as a disciplinary action (see Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339). It further submits that the nomination of “discipline” or “performance appraisal” as the appropriate basis “would not tend to affect the Arbitrator’s decision in any, or any material, manner.” If there is any error, it is not such that it affected the Arbitrator’s reasoning and ultimate decision.
That concludes the submissions made as to this ground of appeal.
Dealing first with the submissions made with regard to paragraph 20 of the Arbitrator’s Reasons, I note that Dr Peter Anderson is a Consultant Psychiatrist. He provided a report dated 1 February 2007, following a consultation with Ms Sapina at the request of Coles Myer. However, a copy of Dr Anderson’s report accompanied the ‘Application to Resolve a Dispute’ that was filed in the Commission by Ms Sapina, as part of her own evidence.
It is true, as Ms Sapina submits, that Dr Anderson did not say that Ms Sapina’s sensitivity to feedback and her difficulties adjusting to events in the workplace were the whole or predominant cause of her adjustment disorder with anxiety and depression. Neither did the Arbitrator. However, the Arbitrator drew upon Dr Anderson’s diagnosis and a consideration of the rest of the evidence before her, in arriving at her conclusions and findings at [21] and [22]. The Arbitrator found that the counselling session on 8 January 2007, that is the “action” of Coles Myer, “is the most significant contributing factor to her injury”. Nevertheless, Dr Anderson’s report is evidence, and it was ultimately a matter for the Arbitrator to consider that evidence along with the other evidence, and to make the determination on the issue as required by law. Whatever his opinion, that was not Dr Anderson’s function.
Dr Anderson refrained from arriving at a conclusion on this point, when he said:
“Whether the actions of supervisors in the area of performance appraisal are reasonable or not is not necessarily for a psychiatrist to judge. This lady perceives them as unreasonable and directed at her as a person. The fact that there have been three instances of difficulties with management suggest that she herself, as the common factor, has a part to play.
To me it seems unlikely that there has been any unreasonable action towards her and that her condition arises from her own sensitivity combined with the particular actions of managers in carrying out their job as they see it.
For these reasons it seems to me unlikely that work is the substantial contributing factor to her illness.” [Emphasis added].
Notwithstanding these observations, the Arbitrator was required to consider and weigh up the whole of the evidence, including Dr Anderson’s report, and make her decision as to sections 9A and 11A of the 1987 Act.
The Arbitrator said at [20] of her Reasons that Ms Sapina had suffered from depression for a number of years, but this was not related to her employment with Coles Myer. However, she conceded that the events at work, or at least Ms Sapina’s perception of them, might have aggravated her condition. Dr Anderson’s diagnosis was, “…Adjustment Disorder with Anxiety and Depression.” He commented further, “She is indeed disturbed to the extent that a psychiatric diagnosis may be made.”
The Arbitrator noted that Ms Sapina conceded in cross-examination that, but for the counselling session about her performance on 8 January 2007, she would still be at work. She came to the view that in light of Dr Anderson’s diagnosis of her, “the most likely basis for her difficulties is her sensitivity to feedback which she takes personally and that she experiences difficulty adjusting to events in the workplace” (at [21]), that her injury “relates directly to the events that occurred at the performance counselling session on 8 January 2007.” The Arbitrator came to that view with the additional benefit of all of the other evidence before her, notwithstanding that that was “a dearth of medical evidence” available (see Arbitrator’s Reasons at [10]). I note again, that she also canvassed in some detail at [10] to [20], Ms Sapina’s work history.
Coles Myer submits that the Arbitrator prefers and accepts Dr Anderson’s evidence “due to the incomplete history provided to Dr Smith.” Dr Smith’s evidence is understandably influenced by the history that has been given to him by Ms Sapina, but while the Arbitrator obviously prefers the evidence of Dr Anderson, and largely but not exclusively, based her conclusions on it, she did not make the precise statement that has been attributed to her by Coles Myer. Dr Smith opined that employment was a significant contributing factor to Ms Sapina’s psychological injury and that her medical condition was a direct result of her response to the adverse work experiences that she had undergone, particularly at the hands of her supervisors. The Arbitrator, in considering the cause of Ms Sapina’s injury, as she was required to do, considered as particularly critical the “action” itself, but not necessarily the whole history of the employment relationship. What occurs in the employment relationship before (and after) an “action” may be a guide to its reasonableness, but is not determinative of it (Buxton v Bi-Lo Pty Ltd (1998) 16 NSWCCR 234 at 239, and Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454 at 458). The Arbitrator canvassed that history at some length but did not regard it as determinative.
On a consideration of the whole of the evidence before her, the Arbitrator was reasonably entitled to come to the conclusion that she did. Clearly, there was a whole history of events, but the Arbitrator concluded that the performance interview on 8 January 2007 was the action that was the significant cause of Ms Sapina’s psychological injury for the purposes of workers compensation. Relevantly, her conclusion was partly based upon Ms Sapina’s own evidence at the arbitral hearing.
Having regard to the medical and work history that was before the Arbitrator, I find that she was entitled to prefer the opinion of Dr Anderson, for the reasons that she gave, and which are supported in the submissions on appeal by Coles Myer. Moreover, I find that the conclusion at which she arrived in terms of the “action” of Coles Myer, is a reasonable conclusion based upon the evidence, notwithstanding the lack of precision and desirable clarity in the way she expressed her finding with regard to the “action”.
However, it is clear enough, that in relation to the submission “the workers sensitivity to feedback and her difficulties adjusting to events in the workplace are incapable on their face of falling within any of the categories identified in section 11A”, that the Arbitrator found that it was the event of 8 January 2007 (supported by Ms Sapina’s own evidence), that was the significant factor that contributed to her injury, following a developing history of conflict and difficulties in the workplace. It is difficult as Coles Myer submits, to arrive at a conclusion, other than that this indicates the “action” so stated, was the “whole or predominant” cause of Ms Sapina’s injury, on a reading of the Arbitrator’s Reasons in this regard.
On a careful consideration of the whole of the evidence, and the Arbitrator’s treatment of it, I find that the conclusion to which she came was reasonable, and that no error on her part has been established. I have no difficulty in agreeing that her conclusion could have been expressed more clearly and precisely, but Ms Sapina has not demonstrated an error on the part of the Arbitrator, such that she should succeed on this ground of Appeal.
Furthermore, I agree with Coles Myer that the failure by the Arbitrator to use the same phraseology as Dr Anderson in describing Ms Sapina’s condition, is not an error of substance that would be, or would give rise to, an error upon which her decision was based, nor one that is fatal to it.
In terms of the “causal link”, the Arbitrator accepted Dr Anderson’s view that Ms Sapina had “difficulties in adjusting to events in the workplace and not to any extraneous cause. I do not believe that she has a constitutional condition.” Dr Anderson thereafter distanced himself to a degree about what may or may not have occurred in the workplace. The Arbitrator, taking Dr Anderson’s views into account concluded that the injury claimed by Ms Sapina occurred in the workplace. In my view, this was a reasonable conclusion to draw, based upon the evidence before her, including Ms Sapina’s own evidence.
The Arbitrator found at [21] that the injury related directly to the events that occurred at the performance counselling session on 8 January 2007, and at [23] found that Coles Myer had discharged its onus of establishing that that its actions with regard to “performance management/discipline” were reasonable.
Finally the Arbitrator, in considering her work history, found that it was reasonable for Coles Myer to draw the deficiencies in her work to Ms Sapina’s attention and to develop a plan to enable to her to meet their business expectations. The Arbitrator found that this process and the “actions” were carried out by Coles Myer in a reasonable manner. In terms of Ms Sapina’s relationship with her superiors, the Arbitrator was obviously influenced by the opinions expressed by Dr Anderson and the statements of other witnesses. In my view, the “causal link” is established.
I do not accept that the Arbitrator has failed to “make a finding” as to the category of “action” into which the performance counselling session fits in terms of section 11A of the 1987 Act. At [23] of her Reasons the Arbitrator refers to “performance management/discipline”, in relation to the issue of the reasonableness of Coles Myer’s action. The Arbitrator is quite clear as to the category into which the performance counselling fits, notwithstanding the lack of a formal finding, in so many words.
Ms Sapina submits that the Arbitrator “misstates the relevant test” in finding that the counselling session on 8 January 2007 is the most significant factor to her injury. She further submits that the Arbitrator confuses the issues of injury and incapacity. In putting forward these assertions, Ms Sapina makes no further supporting submissions. Again, I note and acknowledge some lack of precision and clarity in the Arbitrator’s findings. However, I am unable to draw the inferences that I am apparently invited to draw by reason of these further assertions. I refer to the discussion of the issues set out earlier in these Reasons.
Ms Sapina has failed to demonstrate error on the part of the Arbitrator, and as a consequence, this ground of appeal fails.
Were the Arbitrator’s findings of reasonable action contaminated by her findings on causation?
Ms Sapina submits:
“The analysis undertaken by the Arbitrator from paragraphs [23] to [34] was irredeemably contaminated by her flawed findings in relation to causation. As a result, the Arbitrator confined herself to only one event or “action” when assessing the reasonableness.”
Coles Myer responds:
“The Appellant does not appear to directly challenge the Arbitrator’s findings of reasonable action in any regard apart from the manner in which is [sic] affected b [sic] the Arbitrator’s findings in respect of ‘causation’.
Having regard to the Respondent’s submissions above at points 3.1 to 3.8 inclusive it is submitted that the Appellants application ought to be refused.”
Having regard to the discussion and findings above, this ground of appeal adds little if anything to what has already been dealt with. I agree with Coles Myer’s submission. This ground of appeal fails.
Were the Arbitrator’s findings of reasonable action open on the evidence?
Ms Sapina submits:
“It was common ground that the applicant was a witness of truth. There was uncontradicted evidence of rudeness and belittling and no evidence that it was reasonable in the circumstances.”
Coles Myer submits that the Arbitrator dealt with and reviewed in detail at [10] to [19] inclusive, of her Reasons, all of the available evidence in relation to Ms Sapina’s interaction with their Management and Staff.
Moreover, it submits that the Arbitrator accepted the opinion of Dr Anderson. This evidence along with other evidence was relied upon by Ms Sapina to establish that she had suffered a psychological injury related to her employment by Coles Myer.
Coles Myer further submits that the Arbitrator, at [24] to [32] of her Reasons, reviewed the evidence of some employees of Coles Myer, in relation to what led up to performance counselling session on 8 January 2007. They were not cross-examined nor was their evidence challenged by Ms Sapina, notwithstanding that she had a different view of what had taken place and the motivation for it.
Dr Anderson made observations about Ms Sapina as previously discussed, and having regard to his view of her state of mind, he doubted that there had in fact been any unreasonable action taken by Coles Myer towards her. This, and the weight of the evidence as to the history leading up to the critical event on 8 January 2007, which caused her so much distress to the point where she left work and did not return, does not support Ms Sapina’s interpretation of events. The uncontested evidence, as well as the evidence of Ms Sapina herself, was reviewed and taken into account by the Arbitrator, in relation to the reasonableness of Coles Myer’s action.
There is no dispute that Ms Sapina was regarded by the Arbitrator as a witness of truth. However, the medical and other evidence suggests that her frame of mind and perspective were such that her responses and reactions in these circumstances have been a factor in the difficulties that arose over a period of time. On the evidence, her performance was clearly acceptable for much of the time, but deterioration occurred, as indicated by the examples given in evidence, and which in due course, led to the performance counselling session on 8 January 2007, which entailed the critical “action” causative of the injury.
In all of the circumstances, I find that the Arbitrator’s finding of reasonable action on the part of Coles Myer is supported by the evidence and the weight of the evidence.
This ground of appeal fails.
Were the Arbitrator’s findings of fact in totality contaminated by an irrelevant consideration?
Ms Sapina submits:
“At paragraph [20] the Arbitrator said: ‘It is frankly hard to believe that Coles employs so many inept managers and Ms Sapina needs to take responsibility for some of her difficulties.”
Coles Myer responds that this statement “is grounded by reference to the Arbitrator’s detailed review of the available evidence at para [sic] 10 to 19 inclusive of the Arbitrator’s reasons.”
It is also a similar view to that expressed by Dr Anderson at page 7 of his report of 1 February 2007.
Coles Myer also submits that Ms Sapina’s submission is a “bald assertion” lacking any explanation for the basis upon which it is made. I concur.
On a consideration of the evidence and other documents that are before me, and in the absence of any further argument or material in support from Ms Sapina, no error on the part of the Arbitrator has been demonstrated.
Accordingly, this ground of appeal fails.
The agreement on weekly payments
Given that the Appeal is not successful, this ground of appeal requires no consideration.
Complex matter for the purpose of costs
Ms Sapina states that the case is complex and that an order should be made for both parties to receive an increase in costs of 30%. This was raised before the Arbitrator and not opposed by Coles Myer. However, the Arbitrator made no order as to costs.
While the Arbitrator made no comment as to costs in her Reasons, I note by reference to the transcript of proceedings before her, that she acknowledged the request. Obviously, she did not accede to it.
Neither party has made any submissions on the matter.
Having regard to the outcome of this Appeal, I propose to follow the order made by the Arbitrator.
Conclusion
I find no error of fact, law or discretion on the part of the Arbitrator, such that her decision should be disturbed as a consequence of Ms Sapina’s Appeal. Coles Myer is entitled to an award in its favour.
However, as the Application by Ms Sapina failed in its entirety, Coles Myer is entitled to an award in its favour on all issues in this matter. The formal orders made by the Arbitrator do not accurately reflect this outcome. Strictly, this constitutes an error made by the Arbitrator, which ought to be corrected on Appeal.
`
DECISION
The Appeal is not successful. However, for the reason outlined in [96] of these Reasons, the decision of the Arbitrator dated 18 September 2007 is revoked and the following order is substituted:
1.Award for the Respondent Employer.
2.No order as to costs.
COSTS
Coles Myer seeks an order for costs in this Appeal against Ms Sapina. It makes no submissions in this regard. In the absence of any submissions, I can see no reason to make such an order.
In the circumstances, I make no order as to the costs of this Appeal.
Gary Byron
Acting President
18 January 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
13
0