South Metropolitan Health Service v Jones - [2024] WADC 44

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   SOUTH METROPOLITAN HEALTH SERVICE -v- JONES [2024] WADC 44
CORAM:   CURWOOD DCJ
HEARD:   18 JANUARY 2024
DELIVERED          :   7 JUNE 2024
FILE NO/S:   APP 40 of 2023
BETWEEN:   SOUTH METROPOLITAN HEALTH SERVICE
Appellant
AND
CHRISTINE JONES
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram:   ARBITRATOR SMITH
File Number            :   A111566

Catchwords:

Workers' compensation - Appeal from arbitrator - Alleged error of law by arbitrator's failure to provide adequate reasons for decision - Arbitrator's reasons were adequate in all of the circumstances - No error of law - Appeal dismissed

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr P E Jarman
Respondent	:	Mr D R Clyne

Solicitors:

Appellant	:	Jarman Legal
Respondent	:	Simon Walters

Case(s) referred to in decision(s):

Amaca Pty Ltd v Werfel [2020] SASCFC 125
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Browne v Browne [2019] WASCA 1
Department of Education v Azmitia [2015] WASCA 246
DL v The Queen (2018) 266 CLR 1
Dodson v Woolworths Group Limited [2020] WADC 157
Duluxgroup (Australia) Pty Ltd v Chapple [2023] WASCA 83
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55, 20
Ewart v Caruso [2013] WASCA 266
Gordon v Ross [2006] NSWCA 157
Greenslade v Hiew [2022] WASCA 47
Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
Hunter v Transport Accident Commission & Michael Avalanche [2005] VSCA 1
Lloyd v Faraone [1989] WAR 154
Lockwood-Hall v BHP Billiton Nickel West Pty Ltd [2015] WASCA 232
Marks v Coles Supermarkets [2021] WASCA 176
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Player v Avery [2022] WASCA 147
R v Sexton [2018] SASCFC 28
Resi Corporation v Munzer [2016] SASCFC 15
River Hill Contracting Pty Ltd v Moore [2023] WASCA 111
Sharon Property Pty Ltd v The Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2022] WASC 332
Shellharbour City Council v Rigby [2006] NSWCA 308; (2006) Aust Torts Reps 81‑864
Skinner v Broadbent [2006] WASCA 2
Skippers Aviation Pty Ltd v Curtin [2015] WADC 82
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Soulos v Pagones [2023] NSWCA 243
Summit Homes v Lucev (1996) 16 WAR 566
Thomas v Chandler MacLeod [2015] WADC 78
Velez Pty Ltd v Tudor [2011] WASCA 218
Waterford v The Commonwealth of Australia (1987) 163 CLR 54
Whalan v Kogarah Municipal Council [2007] NSWCA 5

CURWOOD DCJ:

On 23 October 2019, the respondent, Christine Jones, drove into the grounds of her workplace at Rockingham General Hospital, where she worked for the appellant, South Metropolitan Health Service, as an executive assistant. As she entered the hospital grounds on that day, a man jumped out in front of her car, placed his hands on the bonnet of her car and saluted her. After Ms Jones parked her car in the hospital carpark, the man approached her and acted in a confrontational, aggressive, and threatening manner (October 2019 Incident). Ms Jones became very frightened and began shaking. She did not take time off work but claimed she was unable to put the incident out of her mind.
From March 2021 Ms Jones claimed that she was subject to unrelated events in her workplace that culminated in her total incapacity for work on 4 October 2021.
On 24 November 2021 Ms Jones made a claim for workers' compensation on the grounds that she had sustained psychiatric injuries in the course of her employment. She sought weekly payments from 4 October 2021. The appellant disputed liability. The appellant did not dispute that Ms Jones had suffered psychiatric injury but contended that Ms Jones' condition was not an 'injury' as defined by the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) because her condition was wholly or predominantly caused by an expectation of dismissal, retrenchment or demotion in her employment.
To the extent that psychiatric injury is wholly or predominantly caused by an expectation of dismissal, retrenchment or demotion, such a condition is excluded from the definition of injury by s 5(4) of the Act, with the consequence being that no compensation benefits may be awarded.
On 13 June 2023, the dispute between the parties proceeded to an arbitration hearing before an arbitrator of Workcover WA, Mr R Smith (the arbitrator).
On 16 June 2022, prior to the arbitration hearing, the parties had attended a conciliation conference as required by pt XI of the Act. On 23 June 2022, a certificate of outcome from the conciliation conference issued in accordance with s 182O of the Act. The certificate recorded that the appellant had contended that any psychological injury suffered by Ms Jones related to her fear of job security and the erosion of her work duties and that condition had been wholly or predominantly caused as a consequence of excluded factors within the meaning of s 5(4) of the Act.[1]
[1] For the purposes of this appeal the parties agreed the contents of a document entitled 'Appeal Papers for the Judge'. I will refer to that document throughout these reasons as the 'Hearing Book'. The Hearing Book comprised all of the documents that formed part of the record before the arbitrator. Hearing Book, pages 106 - 109.
In this respect, the definition of 'injury' in s 5 of the Act is:
injury means -
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employers instructions; or
(b)a disease because of which an injury occurs under section 32 or 33; or
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d)the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or
(e)a loss of function that occurs in the circumstances mentioned in section 49,
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;
Section 5(4) provides:
(4)For purposes of the definition of injury, the matters are as follows -
(a)the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment; and
(b)the worker's not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and
(c)the worker's expectation of -
(i)a matter; or
(ii)a decision by the employer in relation to a matter,
referred to in paragraph (a) or (b).
The appellant argued at the arbitration hearing that the approach taken by Ms Jones to explain the cause of her psychiatric injuries changed sometime after the conciliation conference. The appellant contends Ms Jones realised that her mental condition may not be compensable if it was caused by a fear or expectation of dismissal, retrenchment or demotion. In substance, the appellant says Ms Jones changed her case after that realisation.
The arbitrator found in favour of Ms Jones. In summary, the arbitrator found:
1.Ms Jones contracted a psychiatric disease, post‑traumatic stress disorder (PTSD), as a result of the October 2019 Incident.
2.Ms Jones' PTSD did not initially cause any incapacity, but issues in her workplace in 2021 aggravated her symptoms to the extent that her PTSD contributed to her total incapacity for work on (and from) 4 October 2021.
3.Ms Jones contracted a separate psychiatric disease as a result of events in the workplace in 2021, consisting of adjustment disorder with anxious mood.
4.Ms Jones did not change her case after any realisation that an injury caused by fear of losing her job would be rendered non‑compensable.
5.The stress experienced by Ms Jones which aggravated her PTSD and caused an adjustment disorder with anxious mood:
(a)was brought about by the alteration of Ms Jones' roles and responsibilities in her employment from March 2021;
(b)made a material contribution to her total incapacity to work; and
(c)did not wholly or predominantly arise from her expectation of dismissal, retrenchment or demotion, but rather, the predominant cause of her stress was her alteration to her roles and responsibilities from March 2021.
The arbitrator ordered the appellant to make weekly payments to Ms Jones from 4 October 2021 and pay her treatment expenses from 23 October 2019.
No challenge is made in this appeal as to the arbitrator's findings that Ms Jones contracted PTSD and a separate psychiatric disease during 2021, being an adjustment disorder with anxious mood. Further, in the course of this appeal the appellant did not directly challenge:
1.the arbitrator's finding that, although Ms Jones expressed concerns about her job security, her main preoccupation was with the alteration to roles and responsibilities, rather than whether she would be dismissed, retrenched or demoted; and
2.the conclusion reached by the arbitrator that to the extent she had concerns about dismissal, retrenchment or demotion, those concerns were not the whole or predominant cause of the stress that led to her psychological conditions.
Consequently, the appellant accepts that the findings the arbitrator ultimately made were all open on the evidence before him.
The appellant contends that the arbitrator made an error of law by providing inadequate reasons for his decision. The inadequacy of reasons is focussed on the arbitrator failing to explain why he accepted Ms Jones' evidence and how he reconciled, what the appellant contends were, inconsistent and contradictory parts of her evidence to reach a finding that her psychological condition was not wholly or predominantly caused by a fear of redundancy. Further, the arbitrator's reasoning as to why 'self-serving and evidence given at the hearing was accepted over conflicting earlier evidence was not explained giving rise to an error of law'.[2]
[2] Appellant's submissions, par 33.
The appellant contended in the arbitration hearing that:
1.Ms Jones gave inconsistent evidence as to the causes of her PTSD and adjustment disorder with anxious mood.
2.On one version of Ms Jones' evidence, the cause of her mental condition was consistent with that condition being wholly or predominantly caused by her expectation of dismissal, retrenchment or demotion.
3.A second version of events was that she was not worried about dismissal, retrenchment or demotion (and necessarily that her mental condition was not caused wholly or predominantly by those matters). The appellant submitted that version of events was self‑serving and only advanced after Ms Jones became aware that if a finding was reached that her mental condition was wholly or predominantly caused by an expectation of dismissal, retrenchment or demotion her claim at arbitration could not succeed because of the provisions of s 5(4) of the Act.

The arbitrator's decision

The arbitrator's reasons (Reasons), relevantly for the purposes of this appeal, were that:
1.It was an agreed fact that Ms Jones was a worker, and the appellant was her employer.[3]
[3] Reasons [59]. No issue is taken by the appellant with this finding.
2.On 14 November 2019 Ms Jones presented at Rockingham Medical Centre in relation to the October 2019 Incident. She later presented at the same medical centre on 28 August 2021 and 4 October 2021 with work‑related anxiety.[4]
[4] Reasons [28].
3.On 3 November 2021 Ms Jones commenced cognitive behavioural therapy with a psychologist.[5]
[5] Reasons [29].
4.On 17 November 2021 a general practitioner, Dr Theron, certified Ms Jones as having had no capacity for work from 4 October 2021 as a result of PTSD.[6]
[6] Reasons [30]. Dr Theron also certified Ms Jones on 15 December 2021 for having no capacity for work as a result of 'stress, possible PTSD' and further incapacity certifications were provided on 23 February 2022, 23 March 2022, 28 March 2022, 26 April 2022 and 24 May 2023. On each of these occasions Dr Theron stated that Ms Jones' incapacity results from 'stress, anxiety and depression ‑ triggered by work‑related stress'.
5.On 24 November 2021 Ms Jones completed a workers' compensation claim form in which she referred to the October 2019 Incident and claimed to have PTSD and anxiety as a result. Her claim form did not refer to more recent issues in her workplace.[7]
[7] Reasons [31].
6.In October 2021 the appellant's insurer sought to have Ms Jones reviewed by Dr Edwards-Smith, a consultant psychiatrist.
7.On 13 January 2022 Dr Edwards-Smith examined Ms Jones. She produced a report on the same date.[8] During her assessment with Dr Edwards-Smith, Ms Jones stated that she had been told that due to a restructure, her job no longer existed but that her job was there and hers until she chose to leave it or retire. Further, although she was assured that her job was safe, she did not receive any written assurance of that fact. Ms Jones told Dr Edwards‑Smith that some of her responsibilities had been removed from her role. Dr Edwards‑Smith recorded that this caused Ms Jones to feel like she was being treated like a lackey and to feel that she was undervalued. She felt that she was being treated like an office junior and that management had tried to get her to resign. The arbitrator set out the following part of Dr Edwards‑Smith's report of 13 January 2022:[9]
[8] See Hearing Book, pages 255 - 265.
[9] Reasons [33].
… Ms Jones … presents currently with significant symptoms of anxiety, panic, low mood, altered sleep, reduced interest, energy and enjoyment. I think that she has a current significant Major Depressive Episode with co-morbid anxiety, physical symptoms of anxiety with the symptoms being of gradual onset. She describes a stressful workplace event on 23 October 2019 which did trigger symptoms of anxiety at that time. However, there was a clear history of escalating symptoms of anxiety since she was advised that her position was eventually being abolished, in early 2021. It was her perception that the meaningful tasks of her work were subsequently removed from her. Ultimately, I do consider that the workplace events were aetiologically significant with an onset of symptoms of anxiety after the incident of 23 October 2019, however, the significant causative work factor related to the issues from January 2021 to the notification to her that her position was being abolished, told that she could remain in the role until she retired or resigned. She then perceived that various important aspects of her role were removed from her areas of responsibility to the point where she was left with little meaningful work.
Work has been a central part of Ms Jones' identity.
8.Dr Edwards‑Smith did not specifically address Dr Theron's diagnosis of possible PTSD following the October 2019 Incident.
9.On 8 February 2022 Ms Jones was examined by a consultant psychiatrist, Dr De Felice who prepared a report on the same date. Regarding the October 2019 Incident, Dr De Felice's opinion was that it was reasonable to conclude that Ms Jones suffered a mild PTSD. In relation to the 2021 workplace issues Ms Jones told Dr De Felice that she was:[10]
[10] Reasons [36] - [37].
[T]roubled by her perception of the gradual removal of her duties whilst initially being told that her job was safe. As her duties were removed, she described feeling increasingly insecure in her work, troubled by the prospect of being made redundant, and her anxiety symptoms emerged in response to this, culminating in her taking some time off work in September 2021.
10.Dr De Felice's opinion was that Ms Jones had developed an adjustment disorder with anxious mood. Dr De Felice said in his report that Ms Jones had indicated that her adjustment disorder symptoms had arisen in the context of her fear of redundancy and the gradual erosion of her work duties.[11]
[11] Reasons [38]
11.At the time of his first report, Dr De Felice did not think that Ms Jones' PTSD was causing her any incapacity but appeared to accept that she was totally incapacitated to work as a result of her adjustment disorder and required a return-to-work programme before regaining that capacity.[12]
[12] Reasons [39].
12.The appellant's insurers notified Ms Jones that her claim was disputed on the basis of s 5(4) of the Act. The parties subsequently attended a conciliation conference in June 2022.[13]
[13] Reasons [40] ‑ [41].
13.On 28 November 2022 Dr De Felice examined Ms Jones and prepared a further report. He stated in his report that he remained of the opinion that Ms Jones suffered from PTSD following the October 2019 Incident at work. However, he now suspected that:[14]
[14] Reasons [42].
… the routines of going work, the sense of purpose that she had in doing so, formed part of (sic) coping mechanism that enabled Ms Jones to manage her PTSD symptoms in the first instance. That's not to say they weren't already present before Ms Jones ceased work in September 2021, just a few months before I saw her in February 2022. However, with the unravelling of that coping mechanism, Ms Jones PTSD symptoms have become more obvious and limiting for her.
14.Dr De Felice noted in his report that there were:[15]
[15] Reasons [43].
… a number of issues in the workplace other than just the 'fear of redundancy' that might be relevant to consider in this regard, particularly the 'gradual erosion of her duties' as well as Ms Jones feeling that she was increasingly being targeted.
15.In a letter dated 11 January 2023 Dr De Felice said of his use of the word redundancy in his reports:[16]
[16] Reasons [44].
I didn't mean that she spoke of 'redundancy' in the sense that it was being offered to her, but in the sense that she felt that all her duties and tasks were being taken away from her. Perhaps there are other words to summarise this, but it was used in the sense that she had no duties.
16.At the time of the second report, Dr De Felice's opinion was that Ms Jones' incapacity arose both from her adjustment disorder and an aggravation of her PTSD symptoms, although he thought that the adjustment disorder was the main force leading to this incapacity. He suspected that her PTSD and adjustment disorder rendered her unfit for work for the foreseeable future.[17]
[17] Reasons [45].
17.On 6 October 2022 Ms Jones was reviewed by Dr Lai, an occupational physician, at the request of the appellant. Dr Lai's opinion was that Ms Jones suffered from major depression which rendered her unfit for work at that time. In a further review on 2 February 2023 Dr Lai provided an opinion that Ms Jones was suffering from major depression and anxiety and that she was unfit for her role due to anxiety and vulnerability to stress.[18]
[18] Reasons [46] ‑ [47].
18.On 23 February 2023 Ms Jones was reviewed again by Dr Edwards‑Smith who diagnosed Ms Jones as suffering from a major depressive episode. She did not agree with Dr De Felice's diagnosis of PTSD.[19]
[19] Reasons [48].
19.Dr Edwards‑Smith did not explain in detail why she disagreed with Dr De Felice's diagnosis of PTSD nor did she address Dr De Felice's reasoning that Ms Jones' work provided a coping mechanism for PTSD and the removal of meaningful responsibilities and eventual cessation of her work had therefore aggravated her PTSD symptoms. The arbitrator referred to Dr Edwards‑Smith's opinion that Ms Jones being told in 2021 that her position was being abolished, however she could remain in her position until she retired or resigned, was significantly causative of her condition.[20] Further, she did not have capacity for her pre‑injury role.
[20] Reasons [49] ‑ [50].
20.The arbitrator then referred to Ms Jones' written statement on 7 July 2020 which stood as her evidence‑in‑chief in the arbitration. With respect to Ms Jones' evidence, the arbitrator noted:
(a)Ms Jones was told in March 2021 that her job was to be abolished but that her employment was safe until she retired or resigned;
(b)her statement contained evidence of unscheduled meetings at which the future of her position was discussed with management. According to Ms Jones, management declined her request for an assurance in writing that her position would not be abolished until she retired or resigned;
(c)however, she was repeatedly assured that her employment was not at risk, albeit that there might be some changes to her role;[21]
[21] Reasons [52].
(d)various examples in her witness statement of responsibilities which she viewed as being removed from her role and that when asked by email to perform an ad hoc task that she had previously routinely performed she felt like she was being treated like a 'newbie'; and
(e)Ms Jones recounted an altercation with a colleague over scanning documents which left her feeling bullied and belittled and which brought back feelings of anxiety and having her personal safety threatened.[22]
[22] Reasons [53].
22.Ms Jones went on sick leave from 26 August to 13 September 2021. Upon her return to work her supervisor, Ms Janet Caurel, asked Ms Jones to have a doctor complete a form about her fitness for work after Ms Jones had already provided medical evidence. This request caused Ms Jones additional anxiety and stress.
23.Ms Caurel subsequently told Ms Jones that she would no longer have access to Ms Caurel's professional email and Ms Jones would no longer have a role in performing work rosters. This caused Ms Jones further stress and by 4 October 2021 her evidence, as set out in her witness statement, was:[23]
I couldn't think straight and all I could think of was the fact I was not only feeling unsafe in my everyday surroundings but perhaps losing my job as well.
24.The arbitrator reached the following conclusions:
(1)Although Ms Jones was quite defensive in the giving of her evidence, her accounts were generally coherent and consistent.[24]
(2)Ms Jones contracted PTSD as a result of the incident on 23 October 2019. That injury occurred in the course of her employment and the employment contributed a significant degree. Further, Ms Jones' PTSD did not initially cause any incapacity, but issues within her workplace aggravated her symptoms to the extent that her PTSD contributed to her total incapacity for work from 4 October 2021.[25] In this respect, the arbitrator agreed with the diagnosis of Dr Theron and Dr De Felice and preferred Dr De Felice's opinion over that of Dr Edwards‑Smith because Dr Edwards‑Smith did not adequately explain why she disagreed with Dr De Felice and did not engage with his explanation of why Ms Jones' PTSD might have deteriorated rather than improved.[26]
(3)Ms Jones contracted a separate psychiatric disease as a result of events in the workplace in 2021 and there was no dispute about this, but the parties differed as to the nature of the disease.[27]
(4)The reduction and re-arrangement of Ms Jones duties did not constitute a demotion within the meaning of s 5(4) because it did not involve a reduction to a lower grade or class. The arbitrator also noted that the appellant abandoned an argument that Ms Jones was in fact demoted.[28]
[23] Hearing Book, page 140.
[24] Reasons [56].
[25] Reasons [60].
[26] Reasons [60].
[27] Reasons [61].
[28] Reasons [62].

With respect to the appellant's submissions that Ms Jones changed her case once she realised that her injury might be rendered non‑compensable, the arbitrator stated that submission was based on Ms Jones reaching a realisation around the time of the conciliation conference on 23 June 2022.[29] The arbitrator noted that Ms Jones said in her (second) witness statement of 10 May 2023 that:[30]
… my anxiety is an issue stemming from the original accident on 23 October 2019 and exacerbated due to my work environment in 2021 rather than from losing my position which was assured to me on many occasions by Janet Caurel as my Line Manager.
[29] Reasons [63].
[30] Reasons [63] (emphasis added).
The arbitrator did not accept the employer's submission that Ms Jones changed her case for the following reasons:
1.Her claim form completed in November 2021 referred at length to the October 2019 Incident but did not make any mention of any fear of losing her job.
2.Ms Jones recounted to psychiatrists in her initial appointments the fact that she had been assured that her employment with the employer was secure until she either resigned or retired.
3.Ms Jones consistently reported that it was the way in which her tasks were being reallocated, the nature of the communication with her colleagues and superiors and a sense that her role was being made less meaningful, rather than the fear of redundancy or dismissal, which was the main cause of her work‑related stress.[31]
[31] Those three reasons were included by the arbitrator at Reasons [64].
The arbitrator found that the predominant cause of her stress was the alteration to her roles and responsibilities from March 2021.[32]
[32] Reasons [65].
The arbitrator stated that whilst Ms Jones did express concerns about redundancy and Dr De Felice did refer to those concerns in his report,[33] Ms Jones' main preoccupation was with the alteration to her roles and responsibilities. The arbitrator also noted the objective fact was that Ms Jones' employment was secure and she had been repeatedly assured of this.[34] The arbitrator also stated that Ms Jones was aware that she would not be dismissed, retrenched or demoted. Further, to the extent that she may have had concerns about those matters, those concerns were not the whole or predominant cause of the stress that led to her psychological conditions.[35]
[33] Dr De Felice's report of 8 February 2022.
[34] Reasons [66]. No challenge is made on appeal to this objective fact. Appeal hearing ts 7.
[35] Reasons [66].
The arbitrator consequently concluded:
1.Ms Jones had been totally incapacitated for work from 4 October 2021.
2.Ms Jones' employment had made a significant contribution to the development of her adjustment disorder with anxious mood or psychiatric condition.
3.The appellant was liable to pay weekly payments of compensation from 4 October 2021and statutory expenses from 23 October 2019.

Grounds of appeal

The appellant filed a notice of appeal on 24 August 2023 raising two grounds of appeal:
Ground 1:The arbitrator did not adequately set out his assessment of the respondent's credibility.
Ground 2:The arbitrator did not set out his findings of why Ms Jones' later set of evidence was accepted over the earlier set of evidence, thereby failing to give adequate reasons.
With respect to ground 1, Ms Jones' credibility was put in issue by the appellant, and she was extensively cross‑examined during the arbitration hearing.
With respect to ground 2, I raised during the course of the hearing of the appeal what was meant by the respective terms 'later set of evidence' and 'earlier set of evidence'. I requested counsel for the appellant to clarify ground 2 by, if necessary, providing an amended ground to define what comprised the two sets of evidence referred to within the ground and to confer with counsel and the solicitors for the respondent as to the terms of an amended appeal ground.
After the hearing of the appeal, an amended Notice of Appeal was filed by the appellant. The respondent does not consent to any amendment of ground 2.
Ground 2 as proposed in amended form reads as follows:[36]
The arbitrator did not set out his findings to identify why the respondents later evidence where said (sic) that she had no expectation of dismissal or demotion, was accepted over the earlier evidence that the respondent had expectation(s) of dismissal and demotion, which was elicited from the evidence of:
a.The applicant in her statement dated 7 July 2022;
b.Dr Gemma Edwards-Smith in her report dated 13 January 2022; and
c.Dr Nick De Felice dated 8 February 2022.
[36] The proposed amendments are marked.
Notwithstanding the respondent's opposition to the amendment of ground 2, I am prepared to allow the amendment. Ground 2, as amended, is consistent with how the appeal was argued. The granting of the amendment allows the complaint of the appellant as to the reasoning process of the arbitrator to be fully traversed and understood.
At the heart of the appellant's complaint on both grounds of appeal is that Ms Jones changed her version of the reason or causes for her stress and anxiety. According to the appellant, she changed her reasoning when she understood that, legally, her claim would fail if the predominant cause of her stress and anxiety was a fear of dismissal, retrenchment or demotion which is not compensable as a consequence of s 5(4)(c) of the Act (which qualifies the definition of 'injury').
The appellant's argument, as I understood it, was that the arbitrator had not addressed in his reasons and, had not given any consideration, to the inconsistent statements made by Ms Jones.[37] Counsel for the appellant submitted that the inconsistencies in Ms Jones' evidence was the only issue in the arbitration and there was an obligation on the arbitrator to give the parties an understanding of why he had come to the decision he had. The appellant argued that the arbitrator's decision should be set aside and the case be remitted to the Arbitration Service for rehearing.
[37] Appeal hearing ts 10.
In summary, my opinion is that the arbitrator considered the totality of the evidence and sufficiently set out the reasons for the ultimate conclusion he reached, that Ms Jones' injury did not wholly or predominantly arise from an expectation of dismissal, retrenchment or demotion. Further, the finding made that the predominant cause of her stress was the alteration to her roles and responsibilities from March 2021 was adequately reasoned and was a finding open to the arbitrator in all of the circumstances of the case. The arbitrator engaged with and addressed the argument of the appellant that Ms Jones gave inconsistent evidence and changed her case after the conciliation conference. For the reasons that follow, leave to appeal should be refused and the appeal be dismissed.

Legislative framework

The appellant has brought this appeal pursuant to s 247 of the Act which provides:
247.Appeal against arbitrator's decision made under Part XI
(1)If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213 (3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless -
(a)in the case of an appeal in which an amount of compensation is at issue -
(i)a question of law is involved and the amount at issue in the appeal is both -
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
…

In this appeal, the appellant relies on both s 247(2)(a)(i) and s 247(2)(a)(ii). It is not in issue that the amount is worth at least $5,000 or 20% of the amount awarded by the arbitrator.
Whether an appeal ground is properly categorised as raising a question of law is, in many cases, a difficult assessment. The distinction between errors of law, errors of fact and mixed errors of law and fact can be elusive. Relevant principles include:
1.An appeal will involve a question of law if the court, tribunal or statutory decision‑maker whose decision is under appeal has made an error of law or an error of mixed law and fact.[38]
2.A failure to give reasons, or adequate reasons, for a decision, may constitute an error of law. This general proposition must, however, be considered in the context of the provisions of s 213(4) of the Act which I refer to in [37] below.[39]
3.An appeal on a question of law is narrower than an appeal that merely involves a question of law. Where an appeal lies on a question of law the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law.[40]
4.A court, tribunal or statutory decision‑maker does not make an error of law merely because the court, tribunal or decision‑maker finds facts wrongly or upon a doubtful basis.[41]
5.A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other.[42]
6.A decision does not involve an error of law unless the error is material to the decision, in the sense that it contributes to the result so that, but for the error, the decision may have been different.[43]
[38] Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20] (Buss JA with whom Wheeler & Pullin JJA agreed) (Atanasoska); Hawker Pacific Pty Ltd v Lang [2015] WASCA 256[15] (judgment of the court); Department of Education v Azmitia [2015] WASCA 246 [120] (Mazza JA with whom Buss JA & Chaney J agreed); Ewart v Caruso [2013] WASCA 266[25] (Newnes JA with whom McLure P & Murphy JJA agreed).
[39] Lloyd v Faraone [1989] WAR 154, 163 (Malcolm CJ); Summit Homes v Lucev(1996) 16 WAR 566, 569 (Ipp JJ with whom Kennedy & Rowland JJ agreed); Velez Pty Ltd v Tudor [2011] WASCA 218 [57] - [70] (Murphy JA with whom Pullin & Newnes JJA agreed) (Velez).
[40]Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] (Buss JA) (Paridis); Atanasoska [21]; Skippers Aviation Pty Ltd v Curtin [2015] WADC 82 [20] (Davis DCJ). See also Sharon Property Pty Ltd v The Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2022] WASC 332 [98] (Solomon J); BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60 [41] ‑ [42] (judgment of the court); Lockwood-Hall v BHP Billiton Nickel West Pty Ltd[2015] WASCA 232 [82] (Newnes JA with whom Chaney J agreed).
[41] Paridis [55] referring to Waterford v The Commonwealth of Australia (1987) 163 CLR 54; Atanasoska [21].
[42] Paridis [57].
[43] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ); BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15] (with whom Wheeler & Buss JJA agreed); Thomas v Chandler MacLeod [2015] WADC 78 [26] (O'Neal DCJ).
If a question of law is involved, the grant of leave to appeal lies in the discretion of the court. In Engine Protection Equipment Pty Ltd v Miller the Court of Appeal noted:[44]
Apart from the requirement that the appeal relate to a question of law, the power to grant leave to appeal is not expressly confined. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave … Relevant matters include, but are not limited to, whether the decision below was wrong, or attended with sufficient doubt to justify leave, and whether a substantial injustice would be done by leaving the decision unreversed.
[44] Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [46] (judgment of the court).

If leave to appeal is granted, then the appeal is to be by way of a real review of the decision. The review required by s 247(5) of the Act is in the nature of an appeal by rehearing and is not a hearing de novo. It is not sufficient for an appellant to satisfy a District Court judge that a decision other than that made by the arbitrator is correct and preferable.[45]
[45] Marks v Coles Supermarkets [2021] WASCA 176[124] (judgment of the court) (Marks).
In Marks the Court of Appeal observed:[46]
Once an error or a miscarriage of justice is established then the appellate court, if it is in a position to do so, substitutes its own decision for that of the arbitrator. The appellate court will ordinarily do so by reference to the facts found by the arbitrator which have not been successfully challenged and such findings of fact that the appellate court is able to make by reference to the written record. In deciding whether the appellate court is able to make findings, regard must again be had to the natural limitations of an appellate court working from written material without the benefit of seeing or hearing witnesses. Where an arbitrator's credibility-based findings of fact are infected by material error and cannot be relied upon, or where an assessment of primary evidence contested on credibility grounds is called for, then the appellate court will generally not be in a position to make its own findings of fact. In such a case, it will, at least ordinarily, be necessary for the District Court to remit the case to WorkCover WA for redetermination, usually by a different arbitrator.

The duty to make findings and give reasons

[46] Marks [131].

Section 213(4) of the Act governs the principles to be applied by the arbitrator in the provision of reasons for decision. Relevantly:
213.Decisions and reasons, form and content of
…
(4)The reasons for an arbitrator's decision -
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
The fundamental principles to evaluate the adequacy of reasons for decision are as follows:
1.An appellate court is required to understand the basis of a decision in order to discharge its statutory duty therefore the content of reasons will be dependent on the nature of the jurisdiction.[47]
2.In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. The adequacy of reasons is not to be judged as against a standard of perfection. The question is whether the reasons attained the minimum acceptable standard. In that context, a minimum requirement has been identified as being that the reasons be given in a form that will enable the losing party properly to understand the grounds on which the case was lost, and will not frustrate the losing party's right of appeal.[48]
3.Both the losing party, and the appellate court, must be able to distinguish whether a mistake of law or fact was involved. The losing party must be provided their right to appeal in order to uphold natural justice.[49]
4.When deciding between competing versions of the facts, it is necessary for a trial judge to explain why one version has been preferred over another. In doing so, the trial judge should refer to relevant evidence and, when one set of evidence is accepted over a conflicting set of evidence, set out his or her findings as to how he or she has come to accept the one over the other.[50] This does not mean, however, that the judge at first instance must spell out every detail pertaining to the process of reasoning.[51] Where important or critical evidence is not referred to, an appellate court may infer that it has been overlooked or that the trial judge failed to give attention to it.[52] Notwithstanding these matters, an appellate court must take care to ensure that dissatisfaction with a finding of fact does not mislead it into holding that the trial judge has failed to give reasons for that finding.[53]
5.The provision of inadequate reasons does not automatically constitute an error of law and a ground of appeal. Appellate intervention on the grounds of inadequate reasons for decision will only occur when the inadequacy relates to a material aspect of the case.[54] In this respect in Gordon v Ross[55] Basten JA (Hodgson and Bryson JJA agreeing) said:[56]
As is frequently the case in relation to an appeal by way of re‑hearing, a complaint of lack of adequate reasons tends to obscure the real ground of complaint. Thus, if the real complaint is that no finding has been made, the question of reasons is irrelevant. There is no obligation to give reasons for a finding which has not been made. The gravamen of that complaint, whether right or wrong, must be that no finding has been made in circumstances where there was an obligation to address the issue. On the other hand, if a finding has been made, but is not supported by the evidence, there is little substantial benefit to an appellant to complain of inadequate reasons: on a re-hearing, it would generally be necessary for the Court hearing the appeal to consider the evidence and determine for itself whether it was adequate to support the finding made.
[47] Duluxgroup (Australia) Pty Ltd v Chapple [2023] WASCA 83 [46] (judgment of the court). See DL v The Queen (2018) 266 CLR 1 [32] - [33] (Kiefel CJ, Keane & Edelman JJ); R v Sexton [2018] SASCFC 28 [170] ‑ [181] (Kourakis CJ, with whom Peek & Nicholson JJ agreed), which concerned criminal trials by judge alone.
[48] Soulos v Pagones [2023] NSWCA 243 [418] (Ward P, with whom Meagher & Mitchelmore JJA agreed) (authorities omitted).
[49] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 280 (McHugh JA) (Soulemezis); Skinner v Broadbent [2006] WASCA 2 [38] (Steytler P) (Skinner).
[50] DL v The Queen [131] (Nettle J); Whalan v Kogarah Municipal Council [2007] NSWCA 5 [40] (Mason P, Ipp & Tobias JJA).
[51] Resi Corporation v Munzer [2016] SASCFC 15 [71] (Lovell J, with whom Sulan & Stanley JJ agreed); Hunter v Transport Accident Commission & Michael Avalanche [2005] VSCA 1 [21] (Nettle JA, with whom Batt & Vincent JJA agreed).
[52] Skinner [37].
[53] Soulemezis (281).
[54] Amaca Pty Ltd v Werfel[2020] SASCFC 125 [23] (judgment of the court).
[55] Gordon v Ross [2006] NSWCA 157.
[56] Gordon v Ross [81]. See also Shellharbour City Council v Rigby [2006] NSWCA 308; (2006) Aust Torts Reps 81‑864 [311], [314] ‑ [316] (Beazley JA with whom Ipp & Basten JJA agreed).
If the correctness of the finding is material to the outcome, the absence of adequate reasons may then constitute error sufficient to require a retrial.
Where an appeal is by way of rehearing, an appellant ordinarily identifies error in a factual finding. An arbitrator is obliged to articulate the reasoning process that links the facts and law to justify the ultimate decision.[57] If a finding is made without any reasoning to support it, it may not be possible to discern error from a review of the evidence. In Greenslade v Hiew[58] the Court of Appeal recently stated that this is an explanation of why inadequacy of reasons does not, of itself, necessarily amount to an appealable error.[59] Rather, an appeal court will only intervene when the inadequacy or insufficiency in the reasons is such as to give rise to a miscarriage of justice.
[57] Velez [60].
[58] Greenslade v Hiew [2022] WASCA 47.
[59] Greenslade v Hiew [48] - [49] (judgment of the court).

An appellate court may consider what can legitimately be inferred from the reasons as a whole. Whether the reasons are adequate will depend upon the circumstances of the case and that matters which arose for consideration.[60]
[60] Browne v Browne [2019] WASCA 1 [80] (judgment of the court); Player v Avery [2022] WASCA 147 [102] (Murphy &Vaughan JJA).
The minimum requirement of content of reasons for decision required from an arbitrator is also, in my opinion, informed by the objects of the Act. Namely, the Act is designed to promote expedition, simplicity, and transparency.[61] Section 3(1) of the Act provides:
3.Purposes
The purposes of this Act are -
…
(c)to provide for the resolution of disputes under this Act; and
(d)to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers compensation matters in a manner that is fair, just, economical, informal and quick.
[61] Dodson v Woolworths Group Limited [2020] WADC 157 [168] (Lonsdale DCJ).
When considering an argument as to inadequacy of reasons provided under the Act, it is also relevant to take into account the observations made by the Court of Appeal in River Hill Contracting Pty Ltd v Moore when the court said:[62]
The Workers Compensation and Injury Management Act 1981 … aims to establish a system for resolution of compensation disputes which is timely, cost effective, accessible and in which arbitrated disputes are determined according to their substantial merits with as little formality and technicality as practicable. The length and complexity of the legislative labyrinth which successive amendments to the Act have created challenges the achievement of that objective. Too often, workers compensation disputes seem to become mired in technical procedural arguments, resolved by long and over-elaborate reasons for arbitral decisions which take many months to produce. It is important that those charged with the difficult responsibility of navigating through the legislative maze bear in mind the need to focus on the fair and efficient determination of the substantive merits of the case.
[62] River Hill Contracting Pty Ltd v Moore [2023] WASCA 111 [41] (judgment of the court).

The two sets of evidence/the alleged contradictory evidence given by Ms Jones

Ms Jones was reviewed and treated by various doctors who gave reports for the purposes of the arbitration proceedings. The doctors who consulted and treated Ms Jones did not give evidence at the arbitration hearing and were not available for cross‑examination by either party.[63]
[63] Rule 58 of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) provides that doctors may not be called to give evidence unless the arbitrator is satisfied that the giving of the evidence will assist in the determination of a dispute in a manner that is fair, just, economical, informal and quick.
By ground 2 (as amended), the 'earlier set of evidence' was defined to be comprised of statements attributed to Ms Jones in a medical report of Dr Edwards‑Smith dated 13 January 2022, statements attributed to Ms Jones in a report of Dr De Felice of 8 February 2022 and Ms Jones' witness statement made for the arbitration proceedings on 7 July 2022 (albeit that statement contains a typographical error saying it was made on 7 July 2020).
The later set of evidence, as I understood it, was the oral evidence given by Ms Jones at the arbitration hearing, two supplementary witness statements of Ms Jones made on 10 May 2023[64] and the statements she made to doctors after the initial reports of Dr Edwards‑Smith and Dr De Felice of 13 January and 8 February 2022 respectively. The substance of the later set of evidence, according to the appellant, was an express denial by Ms Jones that job security was a concern for her and her worries were about reduction in her roles and responsibilities. Further the later set of evidence given by Ms Jones was that she did not hold an expectation of the termination of her employment and that evidence was inconsistent with earlier evidence where the termination of employment was a significant factor in causation of the applicant's anxiety.[65]
[64] Hearing Book, pages 143 - 149.
[65] Appeal hearing ts 22 - ts 25.

The first/non‑compensation set of evidence given by Ms Jones

Report of Dr Edwards‑Smith dated 13 January 2022

The first document that the appellant relies upon for a consideration of the earliest set of evidence is a report of Dr Edwards‑Smith dated 13 January 2022.[66] As I have noted, the arbitrator dealt with this report in his reasons.[67]
[66] Hearing Book, pages 255 - 265.
[67] See [16.7] above.
The relevant parts of the report relied upon by the appellant at the hearing of the appeal were:
1.In early 2021 Ms Jones said she was called into a meeting with her manager and a director and told 'my job no longer existed, the job was there and mine until I chose to leave it or retire'. Ms Jones said she was very disturbed by this, that she had intended to work until the age of 62, where she was healthy, enjoyed work and viewed it as getting into society.[68]
2.She said that she always had positive feedback at her annual work reviews and had a good relationship with her team. She said that after that advice 'I was worried sick' that it was 'quite a surprise to me, why me?' and she had been concerned about what had happened to a lady in her 60s last year. She said she began to worry 'is it because of my age?'. She said that all the staff were going to be provided with a document about the restructure and that they wanted her to know in advance so that it would not be a shock. Ms Jones said she asked for reassurance in writing that she would be continuing in her role and this was not provided. She said that she felt 'extremely concerned'. She was told that the documents were confidential but had received approval for her son to read the document. She said that it took her quite a few attempts to ultimately get the document about her job from Janet.[69]
3.Nevertheless, she said that for the next few weeks her duties were still removed and eventually she was becoming progressively anxious about her job.[70]
[68] Hearing Book, page 258.
[69] Hearing Book, page 258.
[70] Hearing Book, page 259.
I also note that Dr Edwards‑Smith said that there was a clear history of escalating symptoms of anxiety since early January 2021 when she was advised that her position was eventually being abolished and that it was her perception that the meaningful tasks of her work were subsequently removed from her.[71]
[71] Hearing Book, page 261.
The arbitrator did refer in his Reasons to the fact that Ms Jones had been told the job she was performing no longer existed, but the job was there until she chose to leave it or retire, that her job was safe and about the removal of some of her responsibilities from her role.[72] Some further matters of note contained in Dr Edwards‑Smith's report were:[73]
On 21 September 2021, Ms Jones said that Janet called her to the office and said that she was going to take over the in-box and calendar management, that Ms Jones would no longer be required to do this work. Ms Jones said this was a big part of her job. Janet told her that it was for her benefit as a lot of the documentation was coming through about the restructuring 'it's better if you don't see them'. Ms Jones interpreted this as a question about her confidentiality. She said that she felt upset as subsequently Janet had complained about how busy she was with her own inbox. Ms Jones said by this time 'I've got nothing to do but file old emails, every job was taken off me'. She said that she felt that she was just being treated like an office junior and they were trying to get her to resign.
CONCLUSION
In conclusion Ms Jones is now 66 years of age and presents currently with significant symptoms of anxiety, panic, low mood, altered sleep, reduced interest, energy and enjoyment. I think she has a current significant Major Depressive Episode with comorbid anxiety, physical symptoms of anxiety with the symptoms being of gradual onset. She describes a stressful workplace event on 23 October 2019 which did trigger symptoms of anxiety at that time. However, there was a clear history of escalating symptoms of anxiety since she was advised that her position was eventually being abolished, in early January 2021. It was her perception that the meaningful tasks of her work were subsequently removed from her.
Ultimately, I do consider that the workplace events were aetiologically significant with an onset of symptoms of anxiety after the incident on 23 October 2019, however, the significant causative work factor related to the issues from January 2021 - to the notification to her that her position was being abolished, told that she could remain in the role until she retired or resigned. She then perceived that various important aspects of her role were removed from her areas of responsibility to the point where she was left with little meaningful work.
Work has been a central part of Ms Jones' identity. She is currently unfit for work and requires further treatment.

Report of Dr De Felice dated 8 February 2022

[72] Reasons [31].

[73] Hearing Book, pages 259, 261 - 262.

The next report which the appellant relies upon as part of the earlier set of evidence is the report of Dr De Felice dated 8 February 2022.[74]
[74] I refer at [61] - [65] to two later reports which Dr De Felice provided.
In his report of 8 February 2022, Dr De Felice noted:[75]
Ms Jones said that after the October 2019 incident she tried to be normal, tried to keep on, not wanting it to affect her. When I asked her whether she was depressed after the incident, she said it was more that she was scared for her safety.
Ms Jones said she didn't take time off work and to her knowledge there was no decline in her work output or quality. She said she was exhausted when she was home. She said she wouldn't go into the front yard because of fear and made sure that all the doors and windows were closed. However, Ms Jones said that apart from that fearfulness of her surroundings and feeling jumpy, she was back to her normal self. She said her work was normal.
…
Ms Jones said further issues occurred at work from March 2021. She said she was told by her managers that the department was being restructured but she wasn't to worry, that her job was safe, even though the report indicated that her job was no longer present. She said that she was assured that she would still have a job. Ms Jones said a week later that she was told that the department was to be restructured but again she was assured that her job was safe. However, Ms Jones says that since then her duties had been gradually lessened so she was concerned as to her job security. She said when she queried these things she was told 'don't worry, someone else can do that'. She said that she feared losing her job 'through no fault of my own' and said that she wanted her FTE. Ms Jones said that she got to the point where she virtually had no duties.
Ms Jones said she started to have concerns once talk of redundancy came up. She said she became very anxious and 'couldn't get my brain working cohesively.' She said she had always intended to work until at least 72 and longer if her health was good. She said she would get up every day and love going to work and was still fine before March 2021. She said all that was being taken away.
[75] Hearing Book, pages 267 - 268 (emphasis added).
I have emphasised in the above quotation the parts of the report of where Dr De Felice make references to Ms Jones concerns about job security and fears of losing her job and full‑time employment. However, as I refer in greater detail below, Dr De Felice clarified that position in his later reports. His opinion, was in substance:
(a)Ms Jones suffered from PTSD following the October 2019 Incident at work;
(b)the routines of going to work, the sense of purpose that she had in doing so, formed part of the coping mechanism that enabled her to manage her PTSD symptoms;
(c)there were other workplace matters that troubled Ms Jones which arose from about March 2021. These led to adjustment disorder which was a separate psychiatric condition to the PTSD arising from the October 2019 Incident, due to a different stressor;
(d)the emergence of her adjustment disorder which arose with respect to the workplace stressors unravelled her use of work as a coping mechanism which had seen an aggravation of her PTSD symptoms from the October 2019 Incident; and
(e)the PTSD and adjustment disorder had caused Ms Jones to be unfit for work and it was difficult to disentangle which of those two conditions was the main force leading to incapacity for work but he leaned towards it being her adjustment disorder.[76]
[76] See further extracts of Dr De Felice's later reports [61] ‑ [65] below.

Ms Jones' witness statement for the arbitration proceedings which was filed on 7 July 2022

On 7 July 2022, Ms Jones filed a witness statement for use in the arbitration proceedings. This statement was filed after the parties had attended a conciliation conference on 16 June 2022. A certificate of outcome of that conference recorded that that the appellant/employer had submitted at the conciliation conference that any adjustment disorder suffered by Ms Jones related to her fear of her job security and the alleged erosion of her work duties and further that such a condition had been caused wholly or predominantly and was excluded from compensation.[77]
[77] See [6] above and Hearing Book, pages 106 ‑ 109.
The appellant made reference to the following parts of that statement for the purposes of the appeal ground:[78]
[78] Hearing Book, pages 129 - 131, 135, 140.
I requested they put (… an assurance that her employment was safe) in writing to reassure me but was advised that they would not but didn't want me to be concerned when the report came out.
…
I could not understand why my position was to be abolished and commented to them that it was a position in which I was constantly busy and queried as to why the position would be abolished.
…
Once again, I asked if that could be put in writing to reassure me but I was advised that this would not occur.
I was still trying to cope from the fall-out of the incident that occurred that I have described earlier in this statement and I really did not need the added pressure that these continual meetings and reassurances were placing on me.
This is why I wanted it in writing but it was not provided to me at all.
…
When I finally got through it I found myself very concerned about the document as noting in that document guaranteed my role was safe and I was feeling extremely unsettled and insecure.
I could not believe that the information that had been provided to me by Heather PEARCE and Janet CAUREL was not at least dealt with in some way in that document, particularly when I had made it very clear that I had no intention of resigning and they made it very clear that my role was safe.
...
By this stage my confidence in retaining my job was at a low ebb because my job security was getting compromised with what was going on and the continual removal of my duties and tasks I took Friday 22^nd to Monday 25^th June 2021 as Leave Loading Leave rather than sick leave. I did this because I couldn't get an appointment with a doctor to get a Medical Certificate in order to work through the feelings that I was having of insecurity with regard to what was happening in respect to my work.
…
My professional confidence over the few months that had preceded this day was lost due to the way I was being approached and directed by the Manager for Education Safety and Quality as well as other colleagues, leaving me to wonder whether my role was secure and whether I had job security and safety.
…
I couldn't think straight and all I could think of was the fact that I was not only feeling unsafe in my everyday surroundings but perhaps losing my job as well.
There were days over that period that I couldn't get out of bed - I just simply had nothing in me and I was really concerned about my job and my future prospects within the hospital, on top of my ongoing feelings of personal safety.
Some other parts of Ms Jones' witness statement stated as follows:[79]
[79] Hearing Book, pages 128 - 129. These contents of the statement appear before the parts of the statement set out at par 56 which the appellant relies upon.
Coupled with the anxiety that I was experiencing because of this incident,[80] there were other factors that started to impact on me and eventually cause my condition to spiral out of control.
Those events started in March 2021.
In March 2021 I was informed by the Director of Nursing in a meeting that had been called that my job was being abolished from the organisation structure.
I was assured however that my position was safe until either I retired or resigned.
The point was made very forcefully so I understood that I had no need to fear for my future employment.[81]
I made it clear that I did not intend to either resigned (sic) or retire until I was at least 72 to 76 years of age, or perhaps longer.[82]
The next I heard about this was on the 7th April 2021 and is approached by the Director of Nursing, Heather PEARCE.
She came to my desk and asked me to go with her and meet with Janet CAUREL, the Manager for Education Safety and Quality.
The meeting was unscheduled but I met with them and I was advised the Department was to be restructured and my position was going to be abolished but again I was told not to worry about this conversation and was assured that my job was safe but my duties could be changed slightly.
I tried to clarify this with the Director of Nursing and she told me that they had no intention of dissolving my role until I chose to resign or retire.
[80] The October 2019 Incident.
[81] Emphasis added.
[82] Emphasis added.
Ms Jones in her witness statement also referred to her feeling as though she experienced unfair treatment by her colleagues. Her statement set out examples where she felt excluded in the workplace, including not being provided with a circulating report that contained information about the department's structural changes.[83] Other instances involved Ms Jones being excluded from relevant employment training, being told by Ms Caurel that 'there is no need for [Ms Jones] to be involved'.[84] Furthermore, her access to emails and diary entries with sensitive information was discontinued,[85] as well as her task to manage the fortnightly rosters.[86]
[83] Hearing Book, page 130.
[84] Hearing Book, page 130.
[85] Hearing Book, page 138.
[86] Hearing Book, page 140.
Ms Jones described what she considered to be mistreatment by other staff. For example, Ms Jones stated that she felt targeted by Ms Caurel as she was questioned on her health and time off.[87] She recounted a specific event whereby she was requested to assist with a scanning job. Ms Jones recounted the incident in her statement as follows:[88]
[87] Hearing Book, page 139.
[88] Hearing Book, page 133.
… the CLO Officer wanted to speak to me and I went to her office where I was immediately greeted with a threatening demeanour of voice and body language with words being told to me to the effect of -
'If you didn't want to help, why didn't you just say so? I've wasted half a day now.'
I remember I told her that I had completed the scanning, which was a large amount, before I left for my break to which she responded with works to the effect of -
'Well you obviously didn't because I haven't got it.'
…
'Well, did you press SEND?'
I told her that I had by I would do it again if it hadn't gone through.
Her response was -
'Don't bother. I'll do it myself and I'll never ask for help ever again.
The witness statement concluded with the following:[89]
[T]he incident that occurred in October 2019 severely affected my confidence of safety and in my view this led directly to me suffering with anxiety and to the problems that I have subsequently had within my workplace.
[89] Hearing Book, page 142.

Later set of evidence

As I have noted the appellant's position was that the later set of evidence was said to comprise:
(a)Ms Jones' oral evidence at the arbitration hearing; and
(b)instructions/discussions with Dr Felice after 8 February 2022.

Dr De Felice's reports and discussions with Ms Jones after February 2022

In his report of 28 November 2022, Dr De Felice said that when Ms Jones went out in public, she was conscious of people around her and sometimes would relive the traumatic experience that occurred in 2019. Further, she had panic attacks perhaps once or twice a month which lasted five to ten minutes. During these episodes she would freeze up, felt tense and had a massive headache, was vigilant, had a feeling in her stomach and would feel hot and shaky.[90]
[90] Hearing Book, page 164.
The report went on to say as follows:[91]
Ms Jones indicated that it wasn't her fear of losing her job that 'set me off'. It was the negativity and she said she felt threatened at work. She said negativity was in the form of body language and the tone of voice that was used, and that made her feel threatened again. She said she was 'threatened from her safety' and it wasn't fear of losing her job.
[91] Hearing Book, page 165.
Dr De Felice asked her what she meant by that and reported in his letter:[92]
… Ms Jones said it was the tone of voice. She explained that she went off work for a couple of weeks, her doctor then cleared her to go back to work but her manager asked for the contact details of her doctor several times a day. She said that the manager was constantly taking her sense of ability and work ethic away from her and did this by taking tasks away from her. So, she said, it wasn't the fear of losing her job. She said she couldn't have a job in which she was in a vulnerable state.
…
[92] Hearing Book, page 165.
Dr De Felice then stated the following:[93]
I find myself still of opinion that Ms Jones suffered from a post‑traumatic stress disorder (PTSD) following the October 2019 incident at work. I am more convinced in that opinion now and I suspect that the routines of going work, the sense of purpose that she had in doing so, formed part of the coping mechanism that enabled Ms Jones to manager her PTSD symptoms in the first instance. That's not to say they weren't already present before Ms Jones ceased work in September 2021, just a few months before I saw her in February 2022. However, with the unravelling of that coping mechanism, Ms Jones' PTSD symptoms have become more obvious and limiting for her.
I also remain of the opinion that there were other workplace matters that troubled Ms Jones, and which I understood arose from about March 2021. I have detailed these in my previous report. In fact, although Ms Jones highlighted that it was the traumatic experience of the 2019 workplace incident that was relevant, on the other hand she again described today, the various stressful events that occurred in her workplace from about March 2021, which I have previously detailed.
…
I don't think there is any doubt that there have been subsequent workplace matters that have been relevant to what I labelled as Ms Jones 'adjustment disorder' in response to these further 2021 workplace stressors.
…
However, from the psychiatric point of view I still think that the adjustment disorder that in my opinion arose in response to the 2021 workplace stressors, is a separate psychiatric condition to the PTSD arising from the October 2019 work incident, and as I put it in my previous report, 'due to a different stressor'. It's also relevant to note that the emergence of her adjustment disorder in response to these further workplace stressors unravelled her use of work as a coping mechanism and has probably seen an aggravation of Ms Jones PTSD symptoms from the October 2019 incident.
[93] Hearing Book, pages 166 - 167.
He concluded:[94]
I think that Ms Jones' PTSD symptoms are not affecting her substantially more than they were towards the end of 2021 when she ceased work and more than what she described in February 2022. From the point of view of her PTSD and adjustment disorder I think Ms Jones has been unfit to work … I find it difficult to disentangle which of the two conditions is the main force leading to this incapacity to work but tend to think that it's her adjustment disorder, Ms Jones indicating that she didn't think that she would get back to her 'executive thinking mode' with all the paperwork having trouble just doing her own simple paperwork.

Ms Jones' cross‑examination at the arbitration

[94] Hearing Book, page 167.

During the hearing before the arbitrator, Ms Jones was extensively cross‑examined about alleged inconsistencies in her version of events. In particular, Ms Jones was cross‑examined on whether she was ever concerned about losing her employment, and whether she changed her claim once she became aware that a fear of redundancy is a non‑compensable injury.
Ms Jones consistently maintained that she was never afraid of losing her job. She also answered, in substance, that when doctors in reports referenced her fears, her statements were meant in the context of her particular executive assistant role ending only when she left the organisation, and she was not worried about losing her full‑time employment because she had been promised that. For example:[95]
COUNSEL:You were never concerned about losing your job?
WITNESS:No.
…
COUNSEL: But what you do recall, don't you, is that the insurer was denying liability to pay your claim because it said your psychiatric condition arose out of your fear of losing your job. You understood that you, didn't you?
WITNESS:And I disputed it.
[95] Hearing Book, pages 32, 36.
Ms Jones was also cross‑examined in regard to the report made by Dr De Felice dated 8 February 2022. Specifically, Ms Jones was questioned in regard to the statement made which said she was 'concerned as to her job security', and that Ms Jones 'feared losing her job through no fault of her own'. Ms Jones conceded that she had likely said what was in the report, however, could not recall specifically what she had stated. Ms Jones clarified, and consistently maintained, that it was not losing her employment that she feared, but losing her executive assistant tasks and meaningful employment. Most relevantly:[96]
[96] Hearing Book, pages 37 ‑ 38. At the appeal hearing it was submitted that Ms Jones' 'evidence was self‑serving rationalisation to explain a gross inconsistency in the evidence that she has been caught out with'. This was also claimed in relation to Ms Jones' explanation of wanting to keep her full-time employment.
WITNESS:      I said they were retaking (sic - 'taking') my executive assistant tasks away from me, yes.
…
COUNSEL:     Yes. Did you say that you feared losing your job through no fault of your own? You can't recall?
WITNESS:No, I can't recall, I'm sorry
COUNSEL:     Do you see how he's put the words through no fault of my own… in inverted commas?
…
WITNESS:Yes, I can see that.
COUNSEL:     Does that indicate to you he may be quoting something you've said to him?
WITNESS:I'll agree with you.
Cross‑examination also centred on a statement Dr Felice set out in his report that Ms Jones was preoccupied with how distressing it was for her to have 'lost her job'. Ms Jones said that she had never lost her job, and that she did not recall making such statement. She explained that the anxiety she had felt was due to a break in her routine, and that she was no longer working consistently for the first time in her life.[97]
[97] Hearing Book, page 43.
Ms Jones was also questioned as to comments in Dr Edwards‑Smith's first report. These included comments such as Ms Jones being 'worried sick' and saying 'is it because of my age?'. Ms Jones adamantly denied these statements and could not recall stating them. Particularly:[98]
[98] Hearing Book, page 47.
COUNSEL:     [Dr Edwards-Smith's report says 'She felt extremely concerned'. Do you recall saying that?] No? So Dr Edwards - Smith has got this wrong in when she says you felt extremely concerned ---
WITNESS:Correct.
COUNSEL:     --- and that you felt that you were worried sick. Is that right?
WITNESS:Correct.
ARBITRATOR: And then again on the next page, page 13, nevertheless, right at the top of the page, 'she said that for the next few weeks, her duties were still removed and eventually, she is becoming progressively anxious about her job'. So has Dr Edward Smith got that wrong as well?
WITNESS:      I wasn't anxious about my job, I was anxious about my duties.
…
Counsel then asked about different aspects of the reports of Dr De Felice in February 2022 and November 2022.
Ms Jones maintained throughout her oral evidence that she was not afraid of losing her job, and that her statements were consistent as she had told the report writers that her job was guaranteed to her:[99]
[99] Hearing Book, pages 54, 57.
COUNSEL:     [in] the second paragraph on the third line from the bottom … she feared losing her job through no fault of my own. Now, that's in the February '22 report. And then we compare that to page 64 in the November '22 report, 'Ms Jones indicated that it wasn't her fear of losing her job that set me off.' Would you agree there two contradictory statements?
WITNESS:In the way they're written, yes.
COUNSEL:     Yeah. I put it to you, it's not just the way they're written. It's what you said was completely contradictory to Dr Defelice (sic).
WITNESS:      But if you go up one sentence, it says that I have again said that I was assured that I wasn't going to lose my job.
COUNSEL:     But – yes you might - you said that and Janet Coral (sic) said that to you, but you still had concerns that you are going to lose your job.
WITNESS:      Because of the tone of voice, atmosphere, feelings and the work had changed immensely
…
ARBITRATOR: Yes. Can I ask you, Ms Jones, when you talk to the doctors about your sentence (sic symptoms),[100] have you ever lied to them?
WITNESSI don't lie. No.
COUNSEL:     So when you've told the doctors you've had anxiety, that was the truth?
WITNESSCorrect.
[100] There appears to be a typographical error in the arbitration transcript and the word 'sentence' should read the word 'symptoms'.
The appellant's position was that if Ms Jones never lied it was difficult to explain the gross inconsistencies in her evidence.[101]

Ground 1

[101] Appeal hearing ts 56.

The following findings made by the arbitrator were not challenged by the appeal grounds:
1.The objective fact was that Ms Jones' employment was secure and her position would not be made redundant.
2.Ms Jones was not at any time demoted.
During the appeal hearing the appellant's position, as I understood it, was that:
1.The ultimate findings made by the arbitrator were open to him on the evidence.[102]
2.The complaint raised by the appeal grounds was not that the arbitrator had made an error of fact, rather the contended error was one of law in not explaining 'why he excluded a portion of the evidence'.[103]
3.Ground 2 did not add to ground 1, or was essentially the same ground, but clarified credibility with the evidence available to make findings and it was, in effect, two aspects of one argument.[104]
4.The only issue for the arbitration hearing was whether Ms Jones' injury was excluded by s 5(4) of the Act.
[102] Appeal hearing ts 30.
[103]Appeal hearing ts 29.
[104]Appeal hearing ts 29.

Were the arbitrator's Reasons adequate?

To place the arbitrator's Reasons in context he described the questions to be answered to resolve the case as being:[105]
(a)Did the compensable injury sustained by Ms Jones as a result of the October 2019 Incident cause any incapacity for work?
(b)If so, what was the extent and duration of that incapacity?
(c)Did Ms Jones suffer an injury in the course of her employment in 2021 to which her employment contributed to a significant degree?
(d)If so, is the 2021 injury non‑compensable because it is a disease caused by stress wholly or predominantly arising from Ms Jones' expectation of dismissal, retrenchment or demotion or her expectation of a decision by her employer in relation to her dismissal, retrenchment or demotion?
(e)If the 2021 injury is compensable, did the injury result in an incapacity for work?
(f)If so, what is the extent and duration of that incapacity?
[105] Reasons [6].
No issue was taken on the appeal with the definition of the issues to be decided by the arbitrator. The only real dispute within those issues is the finding relating to issue (d), whether Ms Jones' injury was non‑compensable because her stress wholly or predominantly arose from an expectation of dismissal, retrenchment or demotion.
After defining the issues, the arbitrator then noted:
1.The definition of injury in s 5(1) of the Act (see [7] - [8] above).
2.That neither party argued that discipline, transfer or redeployment, or Ms Jones' expectations in relation to those matters, were relevant for determination in the case.
Accordingly, the relevant terms for consideration would be the words dismissal, retrenchment and demotion which the arbitrator noted were not defined in the Act and would have to take their ordinary meanings.[106]
[106] Reasons [16].
The arbitrator also described the appellant's submissions for the arbitration hearing as being that the psychiatric disease contracted by Ms Jones as a result of October 2019 Incident did not result in any incapacity and that the incapacity arising from depression or other illness caused by the 2021 workplace stressors was not compensable due to the operation of s 5(4) of the Act.[107]
[107] Reasons [27].

Key findings made by the arbitrator and the reasons provided for the key findings made

The key findings made by the arbitrator to decide the case were:
1.Ms Jones contracted a psychiatric disease, PTSD, as a consequence of the October 2019 Incident and whilst the PTSD did not initially cause any incapacity, issues in her workplace in 2021 aggravated her symptoms to the extent that her PTSD contributed to her total incapacity for work on (and from) 4 October 2021.[108]
2.Ms Jones contracted a separate psychiatric disease as a result of events in the workplace in 2021.[109]
3.The reduction and rearrangement of Ms Jones' duties did not constitute a demotion within the meaning of s 5(4) of the Act.[110]
4.Ms Jones did not change her case after any realisation that an injury caused by fear of losing her job would be rendered non‑compensable.[111]
5.Ms Jones' stress was not predominantly caused by her expectation of a decision by the appellant in relation to her dismissal, retrenchment or demotion, rather the predominant cause of her stress was the alteration to her work roles and responsibilities from March 2021.[112]
[108] Reasons [60].
[109] Reasons [61].
[110] Reasons [62].
[111] Reasons [63] ‑ [64].
[112] Reasons [65].
I will deal with each of the findings and the reasons given for them in turn.

PTSD from the October 2019 Incident and the aggravation of that condition by issues in the workplace in 2021

The reasons given for this finding were largely set out at Reasons [60]. The arbitrator preferred the medical opinion of Dr De Felice over Dr Edwards‑Smith because Dr Edwards‑Smith did not adequately explain why she disagreed with Dr De Felice and did not engage with his explanation of why Ms Jones' PTSD might have deteriorated rather than improved.
In this respect, the arbitrator had summarised the medical evidence earlier in his reasons at [33] - [49]. In those paragraphs the arbitrator set out competing parts of the medical evidence and concluded that Dr Edwards‑Smith did not address Dr De Felice's reasoning that Ms Jones' engagement in work provided a coping mechanism for her PTSD and the removal of meaningful responsibilities from her work role and eventual cessation of her work had therefore aggravated her PTSD symptoms.

Ms Jones contracted a separate psychiatric disease as a result of events in the workplace in 2021

The reasons given by the arbitrator for this finding may be discerned from the entirety of his reasons for decision as being as follows:
1.There was no real dispute about the fact that Ms Jones had contracted a separate psychiatric disease but, rather, the parties differed as to the nature of the disease.
2.Notwithstanding that there was no real dispute about the fact that Ms Jones had contracted a separate psychiatric disease, the arbitrator preferred Dr De Felice diagnosis to Dr Edwards‑Smith diagnosis was that Ms Jones contracted an adjustment disorder with anxious mood.
3.The arbitrator said he preferred Dr De Felice's evidence because of the explanation given by Dr De Felice of his diagnosis by tying the development of Ms Jones' symptoms to an identifiable stressor namely the workplace environment in 2021.
4.By contrast Dr Edwards‑Smith did not adequately explain why she arrived at a diagnosis of a major depressive episode. The arbitrator adopted that if he had preferred Dr Edwards‑Smith's diagnosis he would have arrived at the same conclusions about causation and incapacity. In this respect, the arbitrator referred at [50] to Dr Edwards‑Smith's opinion that, Ms Jones being told in 2021'that her position was being abolished however she could remain in her position until she retired or resigned' was 'significantly causative' of her condition.
5.The conclusion that the arbitrator ultimately reached about causation was that the events in the workplace in 2021 caused the separate psychiatric disease.[113]
[113] See generally Reasons [61].

The reduction and rearrangement of Ms Jones' duties did not constitute a demotion

The reasons given by the arbitrator for the finding that the reduction and rearrangement of Ms Jones' duties did not constitute a demotion within the meaning of s 5(4) of the Act may be discerned from the arbitrator's overall Reasons as being: [114]
[114] Reasons [62].
(a)the appellant expressly abandoned its argument during the arbitration hearing that Ms Jones had been demoted within the meaning of the Act;
(b)in any event, the reduction and rearrangement of her duties did not involve a reduction of her employment position to a lower grade or class; and
(c)none of the matters referred to in s 5(4)(a) or s 5(4)(b) of the Act applied to Ms Jones irrespective of whether the appellants conduct in relation to those matters was harsh and unreasonable such that demotion could not be an issue in the case.[115]
[115] See generally Reasons [62].

Ms Jones did not change her case after any realisation that an injury caused by fear of dismissal or retrenchment would be rendered non‑compensable

The appellant had submitted to the arbitrator that Ms Jones changed her case and evidence after she realised that an injury caused by fear of losing her job would be rendered non‑compensable.[116] This submission is closely aligned to the appeal ground contending that the arbitrator did not give sufficient reasons for his assessment of Ms Jones' credibility. To place the arbitrator's non acceptance of the submission in context, the arbitrator expressly said that the submission appeared to him to have been made upon an assumption that Ms Jones had a realisation at the conciliation conference that she might not receive compensation if her injury was caused by fear of losing her job.[117]
[116] Reasons [63] ‑ [64].
[117] Hearing Book, page 89.
The arbitrator referred to Ms Jones specific evidence in her statement of 10 May 2023, at [63] of his Reasons which was to the effect that her anxiety stemmed from the original incident on 23 October 2019 and was exacerbated due to her work environment in 2021 rather than a fear of losing her position which she had been assured of on various occasions by Ms Caurel as her line manager. The arbitrator did not accept the argument about Ms Jones changing her case or changing her position because:
1.The claim form she submitted seeking workers compensation which was completed in November 2021 referred at length to the October 2019 Incident and did not mention any fear or losing her job.
2.Ms Jones recounted to both Dr Edwards‑Smith and Dr De Felice in her initial appointments with them that she had been assured that her employment with the appellant was secure until she either resigned or retired. Further, that was also an objective fact accepted by all parties.[118]
[118] Appeal hearing ts 44 - ts 45.
3.Ms Jones consistently reported about the reallocation of her tasks and duties, the nature of the communications with her colleagues and superiors and a sense that her role was being made less meaningful rather than a fear or redundancy or dismissal as being the main cause of her work‑related stress.[119]
[119] See generally Reasons [64].

Further, with respect to the non‑acceptance of the key argument put forward by the appellant, other matters contained within the arbitrator's Reasons inform the issue, specifically:
1.Although Ms Jones did express concerns to Dr De Felice about job security, her main preoccupation was with the alteration to her roles and responsibilities.[120]
[120] Reasons [66].
2.The arbitrator made clear that he relied upon the objective fact that Ms Jones' employment was secure, and she had been repeatedly assured of that and, accordingly, knew her employment would continue until she retired or resigned.[121] As a consequence, Ms Jones was aware that she would not be dismissed or retrenched. This finding also needs to be read with the arbitrator's other finding that the undermining of Ms Jones' role did not constitute a demotion within the meaning of the Act.
[121] Reasons [66].
3.The arbitrator also referred at [44] of his Reasons to a report letter of Dr De Felice dated 11 January 2023, which was admitted into evidence by consent, in which Dr De Felice said that the word 'redundancy' in his first report was used in a sense that Ms Jones felt that all her duties and tasks were taken away from her.[122]
[122] See [16.15] above.
4.The arbitrator also outlined at [53] of his reasons a number of examples from about June 2021 of responsibilities from her role being taken or removed from Ms Jones.[123]
[123] Reasons [52] - [53].
In my opinion, the arbitrator has not simply made a finding of Ms Jones' credibility without any reasons. I refer to this in further detail in [92] - [96] below.

The predominant cause of Ms Jones' stress (and injury)

The arbitrator's finding that the predominant cause of Ms Jones' stress was not her expectation of a decision by the appellant that she would be dismissed or retrenched, but was the alteration to her roles and responsibilities from March 2021 (and, necessarily, from the totality of the reasons, issues within the workplace). Specifically:
1.The arbitrator stated that whilst Ms Jones expressed concern about her job security, and Dr De Felice referred in his report to her concerns about redundancy, her main preoccupation was the alteration to her roles and responsibilities. The arbitrator noted that her employment was secure, she was repeatedly assured of that and was aware that she would not be dismissed, retrenched or demoted. Further to the extent that she may have had concerns about these matters, those concerns were not the whole or predominant cause of the stress that led to her psychological conditions.[124]
[124] Reasons [66].
2.The conclusions reached at [66] of the arbitrator's Reasons may also be read with the Reasons at [33] that after Ms Jones was assured that her job was safe, some of her responsibilities had been removed from her role which made her feel 'she was being treated like a lackey' and to feel that she was undervalued and that she was being treated like an office junior and that management were trying to get her to resign.
3.Dr De Felice's first report of 8 February 2022, (which I have referred to at [52] above) did make reference to her adjustment disorder symptoms having had arisen in the course of her fear of redundancy and the gradual erosion of her duties.[125] However, that report had to be read with his later reports of 28 November 2022 and 11 January 2023 whereby Dr De Felice said that the routines of going to work were a coping mechanism for Ms Jones' PTSD symptoms and that there was a number of issues in the workplace other than just the 'fear of redundancy' particularly the 'gradual erosion of her duties' as well as her feeling that she was being increasingly targeted.[126]
[125] Referred to by the arbitrator at Reasons [37] - [38].
[126] referred to by the arbitrator at Reasons [43].
4.In addition, with respect to Dr De Felice's use of the word 'redundancy' in his reports, the arbitrator noted from Dr De Felice's letter of 11 January 2023 that Dr De Felice did not mean, when Ms Jones spoke of 'redundancy' in the sense that it was being offered to her, but in the sense that she felt that all her duties and task were being taken away from her and perhaps there were other words to summarise this, but he had used the word in the sense that she had no duties.[127]
[127] Reasons [44].
5.The arbitrator also referred to Dr Edwards‑Smith's opinion that, Ms Jones being told in 2021 'that her position was being abolished, however she could remain in her position until she retired or resigned', was 'significantly causative' of her condition.[128]
[128] Reasons [50].
6.The arbitrator also summarised Ms Jones' evidence from her first witness statement that after she was told that her employment was safe until she retired or resigned, (and that she had been repeatedly assured that her employment was not at risk albeit that there might be some changes to her role), there were a number of unscheduled meetings at which the future of her position was discussed with management. The arbitrator found it was clear that the meetings and uncertainty about her role were a source of some stress to her. That finding was made in the context of there being changes to her role but that her employment was not at risk.[129]
[129] Reasons [52].
7.Further, the arbitrator summarised a number of examples of responsibilities from her role being taken or removed from her, an altercation with a colleague over the scanning of documents which left her feeling bullied (and which brought back feelings of anxiety and having her personal safety threatened) and that being told to fill in for the administration assistant made her feel that her position was being 'dismissed in respect and worthiness' and left her to wonder whether her role was secure and whether she had 'job security and safety'.[130]
[130] Reasons [53].
8.The arbitrator also referred to Ms Jones taking sick leave from around 26 August to 13 September 2021 and upon her return to work her supervisor questioning her fitness for work which caused her additional stress and anxiety and a feeling of being unfairly targeted by having to disclose further details about her absence from work on sick leave.[131] Further her supervisor, Ms Caurel subsequently told Ms Jones that she would no longer have access to Ms Caurel's professional email and Ms Jones would no longer have a role in performing work rosters. This caused Ms Jones further stress and by 4 October 2021. The arbitrator set out the following extract from her evidence her witness statement of 10 May 2023:[132]
[131] Reasons [54]. The matters of job and role security and safety have to be seen in a context of the objective fact that her employment was secure.
[132] Hearing Book, page 140.
I couldn't think straight and all I could think of was the fact I was not only feeling unsafe in my everyday surroundings but perhaps losing my job as well.
9.The arbitrator then concluded that 'stress in the workplace', brought about (by) the alteration to her roles and responsibilities aggravated her PTSD condition and the aggravated condition made a material contribution to her total incapacity for work. Taking into account the factors in s 5(5) of the Act, her employment made a significant contribution to both the onset and the aggravation of her PTSD. Further, the 'stress in the workplace' also caused Ms Jones to develop an adjustment disorder with anxious mood, being a further disease contracted in the course of her employment. That stress did not arise from a matter mentioned in s 5(4) of the Act and the adjustment disorder with anxious mood also made it a material contribution to her total incapacity for work.[133]
[133] Reasons [67] - [68].

Credibility findings and the two sets of evidence

The arbitrator said at [56] of his Reasons that although Ms Jones was quite defensive in the giving of her evidence her accounts were generally coherent and consistent.
At the hearing of the appeal, it was acknowledged that there was evidence before the arbitrator to support the findings which were ultimately made.[134] The assessment of credibility of Ms Jones is reasoned by the arbitrator. As I have noted, the ground contending the arbitrator gave inadequate reasons in making an assessment of Ms Jones' credibility appears to be linked to the submission made to the arbitrator that Ms Jones changed her case.
[134] Appeal hearing ts 30.
The case before the arbitrator did not, in my opinion, fall to be determined purely on the basis of Ms Jones' credibility. The appellant made submissions to the effect that initially Ms Jones made statements to doctors that her predominate concern was job security. Whilst ground 1 contends that an error was made in not adequately setting out his assessment of the respondent's credibility, that implicitly carries with it a contention that her evidence was discretely different. Ground 2, in its amended form, elaborates on ground 1 by defining what the discrete sets of evidence were and the arbitrator's failure to set out his findings of why the later evidence of having 'had no expectation dismissal or demotion' was accepted over the earlier evidence that the respondent had 'expectations of dismissal and demotion'.
I do not accept, as a general proposition, that the defined 'earlier evidence' of Ms Jones referred to in ground 2 was to the effect that she 'had expectation(s) of dismissal and demotion'. In this respect:
1.All of the 'subsets' of the 'earlier evidence' made reference to Ms Jones being told that her job was safe and she had a job (or employment) until she chose to retire.[135] Indeed, as I have noted at [56] above, Ms Jones in her witness statement, which forms part of the defined 'earlier evidence', says that the point was made to her 'very forcefully so I understood that I had no need to fear for my future employment'. Further, in response to the point made to her that she had no need to fear for her future employment, Ms Jones says that she had made it clear (to the Director of Nursing) that she did not intend to resign or retire until she was at least 72 - 76 years of age.[136] Ms Jones was not cross‑examined on that evidence.
[135] See above at [50], [52], [56].
[136] See above at [57].
2.The earlier evidence also makes numerous references to the removal of duties and tasks from her position:
(a)the first report from Dr Edwards-Smith:
(i)describes Ms Jones' perception that 'various important aspects of her role were removed from areas of responsibility to the point where she was left with little meaningful work'. However, the description Ms Jones gave to Dr Edwards-Smith was coupled with a clear statement that she could remain in the role until she retired or resigned; and
(ii)makes reference to Ms Jones feeling that 'they were trying to get her to resign'. On its face, that is not a fear of dismissal or retrenchment or demotion but, rather, a statement consistent with Ms Jones' other evidence of conduct tantamount to bullying (for example the matters referred to by Ms Jones in her statement at pars [57] ‑ [59] and taking away from Ms Jones her meaningful tasks of work);[137]
[137] This evidence was considered and weighed by the arbitrator at [33], [52], [53] of the Reasons.
(b)the first report from Dr De Felice made references to her duties had been gradually lessened (and) when she queried these things she was told 'don't worry, someone else can do that'; and
(c)the first witness statement of Ms Jones gave various instances of what she described as unfair treatment by her colleagues, being excluded from employment training and her tasks being reduced (see [57] ‑ [59] above).
For these reasons, I do not accept what appears to be a premise in the appeal grounds that there were separate and discrete sets of evidence. The 'earlier evidence' contained statements by Ms Jones that her employment was secure (and she would not be dismissed or retrenched), her roles and responsibilities were reduced and that upon being told of the restructure of the department and her job security she told the Director of Nursing she did not intend to resign or retire until she was at least 72 - 76 years of age.

Did the arbitrator's Reasons discharge his obligation to disclose the intellectual process that led to his decision

I will now turn to the adequacy of the arbitrator's Reasons for the findings that were made and which are set out at [81] - [89] above.
I am not satisfied that the arbitrator's Reasons failed to set out the intellectual process that led to his decision. My reasons for this conclusion are:
1.The arbitrator's Reasons are underpinned by his acceptance of an objective fact (which was not challenged on appeal) that Ms Jones' employment was secure. Namely, she would not be dismissed or retrenched. The arbitrator referred to evidence of assurances being made to Ms Jones that her employment was:
(a)safe until she retired or resigned; and
(b)not at risk, albeit there might be some changes to her role.
2.The arbitrator found that although there was a reduction and rearrangement of Ms Jones' duties that did not constitute a demotion within the meaning of s 5(4) of the Act. That finding is not challenged in this appeal.
3.In light of the finding that Ms Jones' employment was secure (namely, she would not be dismissed or retrenched) and that the reduction and re-arrangement of her duties was not a demotion, the stress which caused her adjustment disorder and exacerbated her PTSD was found by the arbitrator:[138]
[138] This may be inferred from the Reasons at [52], [53], [54], [55].
(a)to have been caused by various issues in the workplace being primarily or predominantly the removal of duties from her role, and a sense that her role was being made less meaningful;
(b)may have had as a contributing cause, but not a primary or predominant cause, a fear of redundancy or dismissal but that was not a predominant cause of her stress, because the objective fact was that her employment was secure, and she had been repeatedly assured of this; and
(c)to also have been caused by Ms Jones' perception of treatment and belittling in the workplace by her colleagues, and that she perceived that her safety was in jeopardy.
4.The arbitrator gave logical reasons for why he rejected the submission that Ms Jones had changed her case during the arbitration process (which was tied to the challenge to her credibility), those reasons being:
(a)her initial claim form mentioned the October 2019 Incident and did not make any mention of any fear of losing her job;
(b)she consistently recounted to her medical practitioners in her initial appointments that she had been assured that her employment was secure until she either resigned or retired; and
(c)she was consistent in reporting that it was the way in which her tasks were being reallocated, the nature of the communication with her colleagues and superiors and a certain sense that her role was being made less meaningful rather than a fear of redundancy or dismissal that was the main cause of her work-related stress.
In my opinion, the arbitrator was correct to find that a fear of dismissal, retrenchment or demotion was not the predominant cause of Ms Jones' stresses.[139] The arbitrator marshalled and considered all of the evidence of what Ms Jones said to the medical specialists and formed the view that a fear of dismissal or retrenchment was not a predominate cause of her stress, although it may have been a contributory cause. However, the predominate cause of her stress were the other issues in her workplace including the relegation in the importance of her position derived from roles and responsibilities being removed and what she regarded as targeting by other members of the office.[140] In all these circumstances, given that the medical practitioners themselves concluded the causes appeared to arise from the workplace stressors rather than a fear of redundancy, the reasoning of the arbitrator was sufficient to inform the appellant why its chief argument that Ms Jones' so called change of position and change of evidence was not accepted.
[139] Reasons [64] - [66].
[140] See Reasons [67].
I also make the following additional observations:
1.The arbitrator's Reasons, as a whole, adequately discharged his obligation to disclose the intellectual process that led to his conclusions.
2.The arbitrator's Reasons, when read as a whole, disclose that the 'stress in the workplace' found by the arbitrator to be the predominant cause of Ms Jones' 'injury'[141] included the significant removal of day-to-day responsibilities from her workplace role, but also, in my view, her feelings of being bullied and belittled and, after a period of sick leave from 26 August to 13 September 2021, her supervisor questioning her fitness for work which caused her additional stress and anxiety and a feeling of being unfairly targeted.
[141] Reasons [67] - [68].
3.As to the credibility of Ms Jones and the acceptance that the predominant cause of her mental condition was stress in her workplace in 2021, the arbitrator placed weight on objective facts and upon unchallenged parts of Ms Jones' evidence. As I have noted, where an appeal ground is based upon inadequacy of reasons, the question is whether the reasons attained the minimum acceptable standard, being that the reasons be given in a form that will enable the losing party to properly understand the grounds on which the case was lost. The grounds upon which the case was lost by the appellant may be discerned from the findings and the reasons I have summarised at [81] - [89] above.
4.With respect to an assessment of Ms Jones' credibility, which is linked to ground 2 which contends that Ms Jones gave two separate and inconsistent versions of events, as I have noted at [94] - [95], I do not accept that there were two 'separate sets of evidence'. There was not a commonality, for want of a better description, within each of the contended sets of evidence. The 'earlier evidence' does not, in my opinion, have a consistent feature within it that Ms Jones feared for her future employment with the appellant. To the contrary, a consistent feature of the 'earlier evidence' is that Ms Jones' position (namely her employment) was guaranteed until she chose to retire or resign. In such circumstances, the use of words such as 'job' security[142] by Ms Jones could also be equated with 'position' or 'role' security rather than 'employment' security. The arbitrator held an advantage in the assessment of the witnesses. The finding made that Ms Jones' accounts were generally coherent and consistent,[143] was one that was open to the arbitrator.
[142] Report of Dr De Felice dated 8 February 2022 referred to at [52] above, witness statement of Ms Jones referred to at [55]; see also report of Dr Edwards‑Smith dated 13 January 2022 at [48] above and the reference to the 'job' no longer existed, but the 'job' was there until she chose to leave it or retire, coupled with the Doctor's opinion that Ms Jones had 'escalating symptoms of anxiety since she was advised that her position was eventually being abolished … [and that it] was her perception that the meaningful tasks of her work were subsequently removed from her'.
[143] Reasons [56].
5.In my opinion, it was difficult in the circumstances of this case for the arbitrator to isolate the predominant cause of Ms Jones' stress as being a fear of dismissal or retrenchment as the appellant had urged him to do. The arbitrator considered this issue and did find that a fear of redundancy was on Ms Jones' mind,[144] but against this fear, the objective fact that her job/employment was secure until she chose to resign or retire. In such circumstances it was open to conclude that the removal of her duties and responsibilities within the workplace (and other stressors in the workplace) constituted the predominant cause of her stress.
[144] Reasons [64].
6.To take a hypothetical example. Throughout 2021, whilst an organisational restructure of her work department was taking place, Ms Jones performed her 'normal' role carrying out the full range of her ordinary working responsibilities without any reduction of her day-to-day tasks. She does not receive any assurance about the security of her ongoing employment, much less a guarantee that she can remain in her employment until she chooses to resign or retire. In such circumstances, the development of a stress and anxiety-based condition may allow certain inferences to be drawn that the condition was primarily caused by a fear of dismissal or retrenchment. As I have noted, the relevant facts in the present case were that:
(a)notwithstanding the workplace restructure, Ms Jones' ongoing employment was secure and her employment would not be terminated; and
(b)her day-to-day tasks were removed in such a way that she felt she did not have a meaningful role, that her position was, as the arbitrator said, being 'dismissed in respect and worthiness'.[145]
[145] Reasons [53].
7.Coupled with the significant removal of her day-to-day tasks and responsibilities, Ms Jones was treated by colleagues in her workplace in a way which made her feel bullied and belittled and which brought back feelings of anxiety and personal safety, culminating in her supervisor questioning her fitness for work when she returned to work after a period of sick leave.

In all of the circumstances, when the arbitrator's Reasons are read as a whole, the arbitrator considered and weighed all of the relevant evidence, including the expert evidence, in reaching the conclusion that Ms Jones' injury was not predominantly caused by her expectation of a decision by the appellant in relation to her dismissal, retrenchment or demotion. The arbitrator's Reasons, as a whole, adequately discharged his obligation to disclose the intellectual process that led to his conclusion as to the credibility of Ms Jones and the acceptance that the predominant cause of her mental condition was events in her workplace in 2021. The arbitrator's Reasons enable the appellant to understand the grounds on which the case was lost. Accordingly, I do not consider the arbitrator made an error of law.

Disposition

In all of the circumstances of the case, the ultimate findings were open to the arbitrator and, in my view, were correctly made on my review of the matter.
The appropriate final orders are:
1.Pursuant to rule 56 of the District Court Rules, the appellant have leave to amend its appeal grounds in accordance with the amended appeal notice filed 25 January 2024.
2.Leave to appeal is refused.
3.The appeal be and is hereby dismissed.
I will hear from the parties as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LM
Associate to Judge Curwood
6 JUNE 2024