Sydney Trains v Ali-Ahmad - [2020] NSWWCCPD 4

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sydney Trains v Ali-Ahmad [2020] NSWWCCPD 4
APPELLANT:	Sydney Trains
RESPONDENT:	Fayez Ali-Ahmad
INSURER:	Transport for NSW
FILE NUMBER:	A1-5531/18
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	9 July 2019
DATE OF APPEAL DECISION:	29 January 2020
SUBJECT MATTER OF DECISION:	Alleged factual error, application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, duty to give reasons
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms R Petrolo, solicitor
Gair Legal
Respondent:
Mr M Hajje, solicitor
Fern Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 9 July 2019 is confirmed.

INTRODUCTION AND BACKGROUND

Fayez Ali-Ahmad (the respondent) was employed by Sydney Trains (the appellant) from 1977. Initially he was a labourer; from 1989 he was employed as a station assistant, first at Redfern and from about 1990 at Bankstown. The respondent said that his supervisor at Bankstown belittled him and made unsubstantiated allegations, and from early 2014 he became increasingly anxious. The respondent identified various specific allegations that it is unnecessary to recite for the purposes of this appeal. The respondent suffered from renal problems and underwent surgery for kidney stones on a number of occasions. He was off work certified medically unfit from 2 July 2015 to 30 November 2015. He accepted a voluntary redundancy on 30 October 2015. He has not worked since. [1]
[1] Respondent’s statement 27/4/17, Application to Resolve a Dispute (ARD), pp 187–189.
The appellant issued multiple s 74 notices, denying liability on the basis of ‘injury’, s 9A of the Workers Compensation Act 1987 (the 1987 Act) (‘substantial contributing factor’) and s 11A of the 1987 Act (citing ‘transfer’, ‘discipline’ and the ‘provision of employment benefits’). The appellant also denied that incapacity continued and disputed there was any ‘permanent impairment’.[2]
[2] Reply, pp 20–22 (dated 26/8/16), 143–147 (dated 12/12/16), 154–159 (dated 23/2/17), 174–179 (dated 27/3/18).
These proceedings were commenced in an Application to Resolve a Dispute registered on 22 October 2018 (ARD). The claim was for weekly payments, medical expenses and lump sum compensation for 17 per cent permanent impairment in respect of psychological injury. At a telephone conference on 30 November 2018, the parties agreed the respondent had suffered a psychological injury deemed to have occurred on 16 November 2015. This disposed of the issues regarding ‘injury’ and s 11A previously raised by the appellant. The matter was referred to an Approved Medical Specialist (AMS) for assessment of whole person impairment in respect of that injury.[3]
[3] Certificate of Determination – Consent Orders, dated 30/11/18.
Dr Hong, an AMS, examined the respondent on 25 January 2019, and a Medical Assessment Certificate (MAC) was issued dated 5 February 2019. The permanent impairment assessment was 8 per cent, a figure insufficient to entitle the respondent to lump sum compensation (see s 65A(3) of the 1987 Act). An application by the respondent to appeal that assessment failed, as a Delegate of the Registrar decided he was not satisfied that at least one of the grounds of appeal as specified in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the1998 Act) had been made out.[4] This effectively concluded the claim for permanent impairment compensation.
[4] Decision of Mr McAdam, Delegate of the Registrar, dated 12/4/19.
The balance of the claim, for weekly compensation and medical expenses, was listed for conciliation conference and arbitration hearing. It was heard over two days on 3 and 7 June 2019. Mr Stockley appeared for the respondent and Ms Goodman for the appellant. There was no oral evidence. Counsel addressed and the Arbitrator reserved his decision. The period of the weekly entitlement was limited, due to the respondent’s age, to a claim from 16 November 2015 to 16 November 2016 (see s 52 of the 1987 Act).[5] The Commission issued a Certificate of Determination dated 9 July 2019, accompanied by 16 pages of reasons.[6] The Arbitrator awarded weekly payments at the rate of $1,262.93 from 16 November 2015 to 15 February 2016 (pursuant to s 36 of the 1987 Act) and at $1,063.52 from 16 February 2016 to 16 November 2016 (pursuant to s 37 of the 1987 Act). There was also a general order for the payment of medical and related expenses pursuant to s 60 of the 1987 Act.
[5] Transcript 3/6/19, 8.32–34.
[6] Ali-Ahmad v Sydney Trains [2019] NSWWCC 238 (reasons).
This appeal is brought by the appellant against the quantum of the weekly award.[7]
[7] Appellant’s submissions, [2.10].

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE ARBITRATOR’S REASONS

The Arbitrator summarised the evidence regarding the respondent’s background, his duties, the work events that he found distressing and his treatment for psychological symptoms.[8] The Arbitrator noted the respondent’s evidence regarding his renal problems and associated time off for surgery.[9] He noted the respondent’s evidence that he accepted the voluntary redundancy because of constant bullying, harassment and belittlement, and his belief that his employment would be terminated in any event.[10]
[8] Reasons, [9]–[30].
[9] Reasons, [22], [24].
[10] Reasons, [26], [28].
The Arbitrator summarised the evidence of Dr Rastogi (a psychiatrist qualified in the respondent’s case).[11] It was Dr Rastogi’s view, in her report dated 17 November 2016, that the respondent suffered from an Adjustment Disorder with Depressed Mood and Anxiety. She considered the respondent at that time was “not fit to work in any capacity”, but “in [the] near future may be able to work part time in [a] sedentary role in [a] limited capacity however vocational options remain limited”.[12] The Arbitrator referred to the doctor’s second report dated 26 February 2018.[13] She there described the respondent as “not fit to work in any occupation currently”.
[11] Reasons, [32]–[44].
[12] Dr Rastogi’s report 17/11/16, ARD p 24, described in reasons, [36]–[38].
[13] Dr Rastogi’s report 26/2/18, ARD pp 10–16, described in reasons, [39]–[44].
The Arbitrator referred to the report of Mr Albassit, a treating psychologist, dated 31 October 2017. Mr Albassit, who first saw the respondent on 20 October 2016, diagnosed Major Depression with features of Anxiety, and said the respondent was unfit.[14] The Arbitrator referred to the report of Mr Metry, another treating psychologist, dated 13 October 2016. He described treating the respondent to “address his condition and alleviate the debilitating symptoms”.[15]
[14] Mr Albassit’s report 31/10/17, ARD p 35, described in reasons, [45]–[47].
[15] Mr Metry’s report 26/2/16, ARD p 85, described in reasons, [48]–[50].
The Arbitrator referred to the report of Dr Assaad, the respondent’s general practitioner.[16] The report identified various specific occasions when the doctor recorded complaints of a psychological nature and the associated prescription of medication. The Arbitrator also referred to Dr Assaad’s clinical notes, and histories of a psychological nature.[17] The Arbitrator referred to some entries in the report and notes that related to the respondent’s renal problems.[18]
[16] Dr Assaad’s report 13/10/16, ARD pp 61–63, referred to in reasons, [51]–[63].
[17] Reasons, [64]–[69].
[18] Reasons, [62], [69].
Dr Mitterdorfer was an urologist who treated the respondent for his renal condition. The Arbitrator said that the respondent’s “renal condition is relevant”. The Arbitrator referred to multiple reports from Dr Mitterdorfer ranging from 3 August 2015 to 15 November 2016. These referred to multiple surgical procedures.[19]
[19] Reasons, [70]–[77].
The Arbitrator referred to the MAC issued by Dr Hong (see [4] above). The Arbitrator summarised aspects of it. He referred to the histories relevant to the respondent’s activities of daily living. He noted the respondent had undergone seven operations for his recurrent renal stones. He noted Dr Hong’s view that the respondent was functioning at a higher level than when he was last assessed by Dr Rastogi. The Arbitrator referred to Dr Hong’s brief summary of the observation material, which Dr Hong had access to. Dr Hong described the observation material as “consistent with the history that I had taken”. The Arbitrator recorded Dr Hong’s view on the respondent’s employability, “Mr Ali-Ahmad is severely dysfunctional due to his psychiatric symptoms and his level of adaptation is poor.”[20]
[20] Reasons, [78]–[84].
The Arbitrator made reference to the factual investigation relied on by the appellant, and briefly summarised some of it.[21] He correctly observed that this document related to questions of liability, and most of the material was “of no assistance with regard to the question of [the respondent’s] residual earning capacity”. The Arbitrator observed that none of the witnesses were aware that the respondent was suffering from a psychiatric condition.[22] The Arbitrator, at some length, summarised the surveillance reports obtained by the appellant.[23]
[21] Reply, pp 23–141.
[22] Reasons, [85]–[92].
[23] Reasons, [93]–[112].
The Arbitrator summarised the submissions made on the appellant’s behalf. Between 3 July 2015 and the redundancy on 30 October 2015, the respondent was at work on a single day, 8 August 2015. The absence was due to his renal problems. There was little contemporaneous evidence of incapacity during the pleaded closed period, due to psychological injury. Having regard to the view of the AMS, Dr Hong, that the respondent was functioning at a higher level when he assessed the respondent, as opposed to the time of Dr Rastogi’s assessment, the appellant submitted it should be concluded the respondent “had some capacity to earn”. The appellant submitted, by reference to the surveillance material, that the respondent was “fit for full duties away from the [appellant]”. He could be a parts finder or a console operator. This was consistent with the respondent’s “mild impairments” based on the assessment by Dr Hong. The appellant submitted the respondent was “able to earn a significant income on suitable duties”. Reference was made to Wollongong Nursing Home Pty Ltd v Dewar.[24]
[24] [2014] NSWWCCPD 55; 15 DDCR 253 (Dewar).
The Arbitrator summarised the submissions made on the respondent’s behalf. Mr Stockley accepted the respondent’s entitlement to weekly compensation ceased as at 16 November 2016 due to s 52 of the 1987 Act. The respondent’s work experience since 1977 had been with the appellant, as a labourer and station assistant. His English skills were restricted. The appellant had no evidence dealing with capacity for employment. Dr Rastogi’s first report was closest in time to the closed period in issue, and it said the respondent was not then fit to work. Dr Rastogi’s opinion on this issue was qualified by her Psychiatric Impairment Rating Scale (‘PIRS’) assessment that the respondent was fit for work in a restricted capacity for less than 20 hours per week. Mr Stockley submitted this could be viewed in light of her comment that in the near future the respondent may be fit for part-time work in a sedentary role. In context, the respondent had no capacity for work up to the time of Dr Rastogi’s first report, 17 November 2016.[25]
[25] Reasons, [124]–[131].
The respondent submitted that the report of Dr Hong, the AMS, demonstrated “a trajectory of improvement” from when the respondent ceased work. The surveillance material all post-dated the closed period at issue. The evidence was consistent with a finding that there was no current work capacity during the closed period. Consistent with the definition of “suitable employment” in s 32A(a)(ii) of the 1987 Act this was the finding that should be made.[26]
[26] Reasons, [134]–[136].
The Arbitrator referred to a submission made in reply by Ms Goodman. At the time of Dr Assaad’s report dated 3 August 2015, the respondent continued to work and there was no suggestion of any incapacity arising from his psychiatric condition.[27]
[27] Reasons, [138].
The Arbitrator described the issue as whether the respondent, during the period from 16 November 2015 to 16 November 2016, had residual earning capacity. The Arbitrator described the referral of the respondent to Mr Metry for counselling on 28 August 2015. At that point the respondent had not been at work since 3 July 2015. Mr Metry described the referral as being to address the respondent’s “condition and debilitating symptoms”. In context, this was probably a reference to the renal problems. Mr Metry’s treatment might well have been to treat the renal difficulties.[28]
[28] Reasons, [139]–[140].
The Arbitrator described the report from Mr Albassit as not rendering assistance. There was no reason given for his first consultation with the respondent on 17 March 2016. He referred to Mr Metry’s treatment of the respondent without saying what it was for. His opinion that the respondent’s condition was the result of “workplace bullying and harassment” was given on 31 October 2017, two years after the events, and was unexplained. The Arbitrator said there was no support for the respondent’s assertion that he was forced to take a voluntary redundancy due to bullying and harassment. At the time of the redundancy, the respondent had not been at work for at least 12 weeks.[29]
[29] Reasons, [141]–[142].
The Arbitrator said there were only three entries in the records of Dr Assaad before 2015 which referred to difficulties at work. Dr Assaad described the respondent on 13 August 2015 as being “stressed from work”, said he prescribed Valium, and said the respondent continued to work. This was incorrect, the respondent did not work again. The Arbitrator said he had reservations about the weight of Dr Assaad’s opinion.[30]
[30] Reasons, [143]–[144].
The Arbitrator referred to the surveillance material. He said that the respondent’s demeanour in the observations gave “no sign” of the symptoms identified in Dr Rastogi’s report dated 26 February 2018. The respondent did not appear emotionally detached, or to be exhibiting a lack of confidence or friendliness. The Arbitrator said he accepted the evidence of Mr Loucas (General Manager of Customer Service for the South/Illawarra Regions) that it was only after leaving the appellant’s employ that the respondent began making the accusations the subject of this claim.[31]
[31] Reasons, [145]–[146].
The Arbitrator concluded his analysis saying:
“148. As to Mr Ali-Ahmad’s claim for weekly payments, the evidence relating to the entitlement is scant. There are no medical certificates and the only evidence on the subject is that of Dr Rastogi in her report of 17 November 2016. Her opinion was that as of that date Mr Ali-Ahmad had no current work capacity, although in the ‘near future’ he would have some capacity to perform suitable duties of a sedentary role.
149. As that is the only evidence available, there being no relevant evidence from the respondent, I must accept it. The report of Dr George for the respondent was concerned with Mr Ali-Ahmad’s position as at 27 January 2017 and, as he was of the view that there was no psychological injury in any event, his opinion must be put to one side.”[32]
[32] Reasons, [148]–[149].

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    The Arbitrator erred in finding that the respondent had no current work capacity in accordance with s 32A of the 1987 Act. (Ground No. 1)
(b)    The Arbitrator erred in failing to find that between 16 November 2015 and 16 November 2016 the respondent had current work capacity in accordance with s 32A of the 1987 Act. (Ground No. 2)
(c)    The Arbitrator erred in accepting the opinion of Dr Rastogi when her opinion had been undermined by the surveillance evidence. (Ground No. 3)
(d)    The Arbitrator erred in failing to accord appropriate weight to the surveillance evidence. (Ground No. 4)
(e)    The Arbitrator erred at law in not giving sufficient weight to the evidence that the renal problems and not any psychological problems were the cause of the respondent having no current work capacity during the period claimed. (Ground No. 5)

LEGISLATION

The definition of ‘suitable employment’ in s 32A of the 1987 Act provides:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iv)the nature of the worker’s pre-injury employment, and
(v)the worker’s place of residence.”
The definition of ‘no current work capacity’ was in s 32A of the 1987 Act. Since the commencement, on 21 October 2019, of the Workers Compensation Legislation Amendment Act 2018, the definition of that term is to be found in cl 9 of Sch 3 of the 1987 Act. It is in substantially identical form. There is no suggestion by either party that anything turns on this amendment for the purpose of the current appeal. The definition in subcl (2) of cl 9 of Sch 3 provides:
“An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The definition in its previous form provided:
“No current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[33] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[34] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[35]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[36]
[33] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[34] (1966) 39 ALJR 505 (Kerr), 506.
[35] [1996] HCA 140; 140 ALR 227.
[36] Raulston, [19].

In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[37] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[38]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[39]
[37] [2017] NSWWCCPD 5, [67].
[38] [2001] FCA 1833, [28].
[39] Raulston, [20].
In Northern NSW Local Health Network v Heggie[40] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[41]
[40] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[41] Heggie, [72].

GROUNDS NOS. 1 AND 2

These two grounds raise the same issue, whether there was appealable error in the Arbitrator’s finding that the respondent had no current work capacity during the closed period for which weekly compensation was awarded. Both parties have addressed these grounds together and it is appropriate that I deal with them together.

Appellant’s submissions

The appellant submits that, apart from Dr Rastogi, the “only other medical evidence during the period claimed was in respect of the [respondent’s] renal condition.” Dr Assaad described renal stones since 23 May 2015, for which he had certified the respondent unfit on several occasions.[42] Dr Mitterdorfer treated the respondent for the problem. The appellant identifies that surgical procedures were carried out for the renal problem on 27 October 2015, 29 June 2016, 23 August 2016, 15 November 2016, 7 February 2017 and 7 March 2017.[43] The appellant submits:
“… the Arbitrator did not accord this evidence sufficient weight. It is quite clear that during the period of the claim for weekly compensation, the [respondent] had extensive kidney problems which needed time away from work.”[44]
[42] ARD, p 31.
[43] Appellant’s submissions, [18]–[25].
[44] Appellant’s submissions, [26].
The appellant refers to the Arbitrator’s discussion of the reports from Mr Metry, Mr Albassit and Dr Assaad (see [21] to [23] above). The Arbitrator expressed reservations about the probative value of these reports.[45]
[45] Appellant’s submissions, [27]–[29].
The appellant submits on the surveillance evidence and the Arbitrator’s impression of the respondent in it, including the Arbitrator’s description of the respondent’s appearance when observed as that of “an untroubled family man”. The Arbitrator noted a discrepancy between the appearances when observed compared with Dr Rastogi’s history in her report dated 26 February 2018 (see [24] above).[46] The appellant submits the only medical evidence that supported the conclusion that there was no current work capacity during the closed period was from Dr Rastogi. Her evidence was “undermined by the surveillance material”.
[46] Appellant’s submissions, [30].

Respondent’s submissions

The respondent submits the Arbitrator considered submissions from both parties relating to the renal issues. Dr Rastogi referred to the renal issues and the history of the respondent being harassed by Ms Michael (a supervisor) and this causing “significant fear”. Dr Assaad recorded a history going back to 8 May 2012 of work-related anxiety and stress for which Valium was prescribed. While accepting the history of renal issues, the Arbitrator was satisfied the closed period of incapacity resulted from the work-related injury. The respondent submits that the appellant did not have a doctor who accepted the conceded psychological injury and also provided an opinion on capacity.[47]
[47] Respondent’s submissions, Response to Ground 1 and 2, [3]–[8].
In respect of the surveillance, the respondent submits the Arbitrator considered the surveillance in conjunction with the evidence from Dr Rastogi and Dr Hong, the AMS. The respondent refers to the list of psychological symptoms recorded by Dr Rastogi in her report dated 17 November 2016. The respondent submits the surveillance cannot assist in dealing with most of these. It does not offer any insight into the respondent’s emotional state or ability to work. The respondent submits it is widely accepted patients mask anxiety and depressive symptoms in public forums.[48]
[48] Respondent’s submissions, Response to Ground 3 and 4, [2]–[4].
The respondent makes the point that the surveillance was recorded in December 2016 and April 2018, outside the period of weekly compensation in issue. The respondent submits the surveillance depicts him going about his mundane day-to-day errands and attending the prayer centre. The activities are consistent with the history taken by Dr Hong. Having reviewed the surveillance footage, Dr Hong assessed the respondent’s employability at a PIRS rating of 4 and described him as “severely dysfunctional due to his psychiatric symptoms and his level of adaptation is poor”. Dr Hong described the respondent as having improved since his assessment by Dr Rastogi. The respondent submits the Arbitrator gave appropriate weight to the surveillance, given that Dr Hong reviewed it and assessed the respondent as having no work capacity. Additionally, it was appropriate to give greater weight to the medical opinion of Dr Rastogi, rather than surveillance that shows the respondent “attending to errands and smiling when speaking to people”.[49]
[49] Respondent’s submissions, Response to Ground 3 and 4, [5]–[10].

Consideration

The submissions dealing with these grounds overlap substantially with those dealing with Grounds Nos. 3 and 4. The submissions on Grounds Nos. 1 and 2 raise two separate issues. The first is the significance of the renal symptoms and treatment, and how the Arbitrator dealt with this issue. The second is the evidence going to incapacity, particularly in light of the surveillance material.

The renal symptoms and treatment

There is no doubt the respondent suffered from renal problems involving kidney stones during the closed period at issue, which involved a need for considerable treatment. This is well chronicled, particularly in the reports of Dr Mitterdorfer who was treating him. The appellant, after referring to the evidence of renal complaints, submits the Arbitrator “did not accord this evidence sufficient weight”. The appellant does not otherwise identify the error that is alleged or how it affected the decision. The weight to be afforded to evidence is ordinarily a matter for the trial judge (or arbitrator). In Shellharbour City Council v Rigby[50] Beazley JA (as her Honour then was) said:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[51]
[50] [2006] NSWCA 308 (Rigby).
[51] Rigby, [144].
The Arbitrator clearly had regard to the evidence regarding renal problems, he referred to it at some length in his reasons. ‘Injury’ was not in issue. The issue was whether incapacity resulted from the conceded psychological injury, and if it did, whether the respondent had ‘current work capacity’, or ‘no current work capacity’. These questions were not dependent on whether the respondent also suffered from an unrelated incapacity as a result of his renal problems. The appellant does not identify any specific finding, relating to the renal problems, that is alleged to have been so against the weight of evidence that some error must have been involved. The appellant’s submissions fail to identify relevant error.
Although it is not articulated as such, the appellant may be adverting to a line of authority that permitted the reduction of a worker’s weekly entitlement on a discretionary basis, where incapacity was partial, if the worker’s ability to exercise his/her earning capacity would have been adversely affected in any event, by an unrelated incapacity or other factor (for example compulsory retirement, other illness, imprisonment).[52] These authorities were based on a discretion in s 40 of the 1987 Act, as originally enacted, and before that in s 11(1) of the Workers’ Compensation Act 1926, to award an amount “as may appear proper in the circumstances of the case”. This discretion was removed by the Workers Compensation Legislation Amendment Act 2012.
[52] See Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50, Singh v TAJ (Sydney) Pty Ltd [2006] NSWCA 330; 4 DDCR 557, Cant v Catholic Schools Office (2000) 20 NSWCCR 88, and cases cited therein. See also s 48 of the 1987 Act.
No relevant error is made out in relation to how the Arbitrator dealt with the evidence about the respondent’s renal problems.

Incapacity and the surveillance material

The balance of the appellant’s submissions dealing with Grounds Nos. 1 and 2 largely go to the issue of the weight of various pieces of medical evidence, particularly that of Dr Rastogi, and whether the evidence should have been accepted by the Arbitrator. The scope of a Presidential appeal is no longer a ‘review’, it is restricted to the identification and correction of error of fact, law or discretion (see [30] to [33] above). In particular, I note the passage at [33] above, quoted in Heggie, that “the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable”.
The appellant’s submissions refer to medical evidence from Mr Metry, Mr Albassit and Dr Assaad. The Arbitrator expressed doubts about the weight to be afforded to this evidence (see [21] to [23] above). Having expressed reservations about the weight to be given to such evidence, the Arbitrator did not rely on it in support of his findings on ‘incapacity’. He gave reasons consistent with explaining why it was not persuasive.[53] It is difficult to see how this could constitute error that would assist the appellant, and the appellant does not identify any specific error in this regard.
[53] Reasons, [140]–[141], [143]–[144].
The appellant addressed at length on the surveillance material before the Arbitrator, and the Arbitrator summarised the content of that material in some detail.[54] The Arbitrator described his impression of the surveillance material. He noted that “caution must be exercised in reviewing surveillance evidence”. He said the “overwhelming impression on all the surveillance, between 22 December 2016 and April 2018, was of an untroubled family man”. He said the respondent’s “demeanour and his interaction with other people … gave no sign of the symptoms identified by Dr Rastogi in her report of 26 February 2018”. He also said the respondent did not exhibit any lack of confidence or friendliness and did not appear “emotionally detached” in the surveillance material.[55] After referring to the Arbitrator’s comments on the surveillance, the appellant submits the only medical evidence that supported the finding of ‘no current work capacity’ was that from Dr Rastogi, whose evidence was undermined by the surveillance. The appellant submits there should have been a finding that the respondent had work capacity during the period of claim.
[54] Reasons, [93]–[112].
[55] Reasons, [145].
The closed period ran from 16 November 2015 to 16 November 2016. Dr Rastogi’s first report was dated 17 November 2016 and related to his assessment of the respondent on that date, one day after the closed period concluded. Dr Rastogi said the respondent was “not fit to work in any capacity” and that “in [the] near future may be able to work part-time in a sedentary role in limited capacity however vocational options remain limited”.[56] Dr Rastogi re-examined the respondent and reported on 26 February 2018. She again described the respondent as “not fit to work in any capacity”.[57] The earliest observations were conducted on 22 and 23 December 2016, a little over one month after the closed period ended. The second period of observations was conducted on 5, 6 and 9 July 2017, about eight months after the closed period. The third period was from 6 to 8 April 2018.
[56] ARD, p 24.
[57] ARD, p 14.
The respondent’s submissions refer to the MAC of Dr Hong, the AMS. He examined the respondent on 25 January 2019. Dr Hong recorded a relatively detailed history of the respondent’s activities of daily living. Activities included walking for about one and a half hours per day, watching television for two or three hours per day, sitting in the garden, and going to the shops once or twice a week. He went to a prayer centre most Fridays, typically with his brother. He could drive, but not long distances because of a knee problem.[58] Dr Hong had access to the Reply, which included the surveillance reports.[59]
[58] Dr Hong’s MAC 5/2/19, pp 3–4.
[59] Certificate of Determination – Consent Orders, 30/11/18, [2].
Dr Hong was the only doctor who reported in the matter that had access to the surveillance material. He referred to the report dated 25 January 2017 (the closest in time to the closed period). He said the respondent was “observed to be driving around, socialising with shop staff members in different locations, and with his neighbour and shopping for groceries at several shops.” He presented as “well-groomed and cleanly shaven, smiling, laughing during conversations with people”. Dr Hong said the “observation from surveillance was consistent with the history that I had taken”. [60] Dr Hong referred to Dr Rastogi’s report dated 26 February 2018. He said that the respondent was much improved since that assessment by Dr Rastogi.[61]
[60] Dr Hong’s MAC 5/2/19, p 6.
[61] Dr Hong’s MAC 5/2/19, p 6.
Dr Hong said “[t]here is a consensus he developed an adjustment disorder with anxiety and depressive symptoms”. Dr Hong said “I have found no inconsistency in Mr Ali-Ahmad’s presentation”.[62] Dealing with the PIRS classification of ‘Employability and Adaptation’ Dr Hong said “Mr Ali-Ahmad is severely dysfunctional due to his psychiatric symptoms and his level of adaptation is poor.”[63] The Arbitrator summarised the above material and views of Dr Hong in his decision.[64]
[62] Dr Hong’s MAC 5/2/19, p 5.
[63] Dr Hong’s MAC 5/2/19, p 10.
[64] Reasons, [78]–[94].
The basis of the appellant’s attack on the Arbitrator’s finding of incapacity is that it was based on the evidence of Dr Rastogi, whose evidence was “undermined by the surveillance material”. It relies on the Arbitrator’s comments about the surveillance in the reasons at [145]. A lay reaction to such material is impressionistic. The Arbitrator made a point of commenting on the need for caution.[65] Whatever misgivings the Arbitrator may have had about the presentation in the surveillance, these did not persuade the Arbitrator that he should do other than deal with the issue of incapacity by reference to the medical evidence, particularly Dr Rastogi.
[65] Reasons, [145].
Dr Hong, a psychiatrist, was the only doctor who commented on the surveillance material. He thought it consistent with the history the respondent had given to him.[66] Relying on that history, and with an awareness of the surveillance, Dr Hong gave an assessment of the respondent’s employability that described him as “severely dysfunctional”.[67] Dr Hong’s view was framed in terms appropriate to a PIRS assessment, rather than being in terms of whether there was ‘current work capacity’. This was consistent with the basis on which Dr Hong was conducting his assessment. Dr Hong’s assessment was consistent with a severe restriction on the respondent’s capacity for employment. It was consistent with Dr Rastogi’s earlier assessment, around the end of the closed period, that the respondent was not fit to work in any capacity. In the relevant PIRS category Dr Rastogi, in her assessment of 17 November 2016, rated the respondent at “3”, a lower figure than the rating of “4” given by Dr Hong on 5 February 2019.
[66] Dr Hong’s MAC 5/2/19, p 6.
[67] Dr Hong’s MAC 5/2/19, p 10.
It was open to the Arbitrator to accept the opinion of Dr Rastogi that the respondent was not fit to work in any capacity. I am not persuaded, applying the principles summarised in Raulston, that the Arbitrator’s decision, that there was no current work capacity during the closed period, involved appealable error.
Grounds Nos. 1 and 2 fail.

GROUNDS NOS. 3 AND 4

Ground No. 3 is that the Arbitrator erred in accepting the opinion of Dr Rastogi when her opinion had been undermined by the surveillance evidence. Ground No. 4 is that the Arbitrator erred in failing to accord appropriate weight to the surveillance evidence. These grounds have essentially been dealt with above.
In its submissions on Ground No. 3, the appellant recites the content of some of the surveillance. The appellant submits the earliest period of surveillance was close in time to the closed period claimed. It submits Dr Rastogi did not review the surveillance. It submits the presentation in the surveillance was different to the presentation to Dr Rastogi. The respondent relied on the same submissions in respect of Grounds Nos. 3 and 4 as those it relied on relating to Grounds Nos. 1 and 2.

Consideration

On the evidence before the Arbitrator, no doctor reviewed the surveillance material except Dr Hong, the AMS. He had access to the surveillance and to Dr Rastogi’s reports. He commented on both. He specifically stated the surveillance was consistent with the history he had recorded. He did not suggest that the surveillance was inconsistent with the histories recorded by Dr Rastogi on her assessments. He did not suggest the surveillance was consistent with dissembling, exaggeration or anything of that nature. There was no medical evidence before the Arbitrator to support a submission that either of Dr Rastogi’s reports were deprived of weight by the surveillance material.[68]
[68] See generally, Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399, [82]–[83].
For these reasons, together with those given above in respect of Grounds Nos. 1 and 2, Ground No. 3 fails.
The appellant’s additional submissions dealing with Ground No. 4 again recite a description of part of the surveillance material. The appellant submits that if the Arbitrator had given “appropriate weight” to the surveillance material he would not have accepted the opinion of Dr Rastogi that there was no current work capacity.[69] Again the respondent relies on its submissions relating to Grounds Nos. 1 and 2.
[69] Appellant’s submissions, [42]–[44].
Ground No. 4 raises arguments already made in the earlier grounds. For the reasons given in respect of Grounds Nos. 1 to 3 Ground No. 4 fails.

GROUND NO. 5

This ground states that the Arbitrator failed to give the evidence of the respondent’s renal problems sufficient weight. The appellant refers to its submissions regarding evidence of the renal condition. It submits the Arbitrator failed to properly weigh that evidence in accepting Dr Rastogi’s opinion and that the reasons were deficient in that regard. The respondent relies on its submissions in dealing with Grounds Nos. 1 and 2, which included reference to the appellant’s argument about the renal symptoms. The respondent’s submissions include reference to the fact that the appellant did not rely on a medical opinion that accepted the occurrence of the psychiatric injury and provided an opinion on capacity.

Consideration

The point was made above, in the reasons dealing with Grounds Nos. 1 and 2, that the appellant failed to identify a specific error in how the Arbitrator dealt with the material about renal symptoms, other than to say that such evidence was not given sufficient weight. The occurrence of the psychological injury in the course of employment was conceded. There was no issue regarding whether the psychological injury resulted from the alleged employment matters.

The Arbitrator, in his reasons, observed agreement by the parties that the issues in dispute were:
(a) Does Mr Ali-Ahmad have any current work capacity?
(b) If so, to what suitable employment is Mr Ali-Ahmad suited.[70]
[70] Reasons, [4].
The parties on this appeal do not argue that the above misstates the issues tendered for decision at the arbitration hearing.
What is said above at [43] is correct; whether there was incapacity resulting from unrelated renal problems was not the issue the Arbitrator was required to decide.
The appellant’s medical case was from Dr George, a psychiatrist qualified by the appellant’s solicitors. Dr George’s opinion was that he was unable to diagnose a psychiatric condition.[71] He said that due to that conclusion, there was no psychiatric reason why, during the closed period, the respondent could not be fully employed.[72]
[71] Dr George’s report 27/1/17, Reply, p 6.
[72] Dr George’s report 14/8/17, Reply, p 8.
The appellant did not, in the running of the arbitration hearing, rely on the opinion of Dr George, whose view on its face was inconsistent with the basis on which the hearing was conducted. The respondent’s counsel at one point, apparently referring to the appellant’s medical case, said:
“What I was saying was that in the absence of a contradictor, perhaps the weight of evidence that the [respondent] needs to identify for you is probably less.”[73]
[73] Transcript 7/6/19, 33.33–34.2.
The Arbitrator, in his reasons, noted that Dr George’s opinion significantly post-dated the end of the closed period (by about 14 months) and that Dr George was of the view that there was no psychological injury. He said that Dr George’s opinion “must be put to one side”.[74]
[74] Reasons, [149].
It is necessary to read the reasons as a whole.[75] The reasons noted the relatively limited scope of the dispute requiring determination.[76] They summarised the factual background in detail.[77] They summarised the reports of Dr Rastogi in some detail.[78] This included the report dated 17 November 2016, which immediately followed the conclusion of the closed period. The Arbitrator summarised the treating reports of Dr Albassit, Mr Metry and Dr Assaad, including entries in Dr Assaad’s clinical notes relevant to psychological complaints.[79] He summarised the reports of Dr Mitterdorfer, the specialist who treated the respondent for his renal problems.[80] The Arbitrator summarised the report of Dr Hong, the AMS.[81] He summarised the surveillance material at some length.[82] He summarised the submissions of both parties.[83]
[75] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
[76] Reasons, [4].
[77] Reasons, [8]–[31].
[78] Reasons, [32]–[44].
[79] Reasons, [45]–[69]
[80] Reasons, [70]–[77].
[81] Reasons, [78]–[84].
[82] Reasons, [93]–[112].
[83] Reasons, [113]–[138].
Against this background, the Arbitrator described the evidence relating to the closed period as “scant”. He referred to Dr George’s report in the appellant’s case and said that his opinion “must be put to one side”, given his failure to accept the occurrence of a psychological injury, which was inconsistent with the case as ultimately presented by the parties. The Arbitrator described Dr Rastogi’s report dated 17 November 2016 as “the only evidence on the subject”. Whilst there was other evidence that was relevant to the cases made by the parties, Dr Rastogi’s first report was the only psychiatric evidence, close in time to the closed period, that assessed the extent of the respondent’s incapacity in respect of the conceded psychological injury. As the respondent’s counsel had noted, there was no “contradictor”. The Arbitrator accepted those views of Dr Rastogi.[84]
[84] Reasons, [148]–[149].
It was open to the Arbitrator to accept that evidence from Dr Rastogi. As the Arbitrator correctly noted, there was no other evidence dealing with that primary issue in the case. The Arbitrator’s acceptance of Dr Rastogi in this regard did not involve error, having regard to the principles set out in Raulston.
“The extent and content of reasons will depend upon the particular case under consideration and the matters in issue”.[85] There was a discrete issue in the case, with evidence directly relevant to it that was appropriately described as “scant”. It is apparent that the Arbitrator took account of the evidence overall in the case, which he set out at length. The Arbitrator’s reasons were, in the circumstances of the case, adequate.
[85] Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, referring to Mifsud v Campbell (1991) 21 NSWLR 725, 728D.
Ground No. 5 fails.

CONCLUSION

All of the appellant’s grounds have failed. The appeal fails.

DECISION

The Arbitrator’s decision dated 9 July 2019 is confirmed.

Michael Snell

DEPUTY PRESIDENT

29 January 2020