UPS Supply Chain Solutions Pty Limited v Kim
[2007] NSWWCCPD 214
•23 October 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:UPS Supply Chain Solutions Pty Limited v Kim [2007] NSWWCCPD 214
APPELLANT: UPS Supply Chain Solutions Pty Limited
RESPONDENT: Sang Soon Rosa Kim
INSURER:QBE Workers Compensation (NSW) Limited.
FILE NUMBER: WCC2158-07
DATE OF ARBITRATOR’S DECISION: 1 June 2007
DATE OF APPEAL DECISION: 23 October 2007
SUBJECT MATTER OF DECISION: Psychological injury; incapacity; weight of evidence; application of Sections 4, 9A and 11A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: McCulloch & Buggy
Respondent: Young & Muggleton.
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 1
June 2007 is confirmed.
2.The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 28 June 2007 UPS Supply Chain Solutions Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 1 June 2007.
The Respondent to the Appeal is Sang Soon Rosa Kim (‘the Respondent’).
The Respondent was born on 15 March 1952 in Korea. She came to Australia in 1982. She worked as a process worker at a shoe factory from 1985 to 1987 and then worked as a process worker at Estee Lauder for approximately 14 years until she was retrenched in March 2001.
She commenced employment with the Appellant as a Stock Administrator in April 2001. Her duties included picking, packing computer parts and driving a forklift. The Respondent stated that she was “… the only female employee”.
The Respondent claimed she commenced learning to use a forklift in about October 2005 and as a result of inadequate instructions, suffered anxiety. In an undated statement annexed to her ‘Application to Resolve a Dispute’ filed in the Commission on 28 March 2007, she documented other issues relating to difficulties with fellow employees (to which I will refer more fully below) as causing her to feel “… very harassed, intimidated, anxious and stressed…”.
These incidents, the Respondent claimed, caused her to begin “… to dread working …”.
The Respondent claimed that “in February/March 2006, I started really hating going to work …” and began suffering symptoms such as sleeplessness and sweating.
On the 27 April 2006 whilst travelling to work, the Respondent claimed that she suffered what has been described as a “panic attack”. Her symptoms included rapid heart beat, difficulties breathing, sweating and dizziness. She pulled the car over and made arrangements for a colleague to drive her to her general practitioner, Dr Kim. At a consultation on that date, Dr Kim prescribed Zoloft. The Respondent went home but due to continuing symptoms, went to Concord Hospital for further treatment.
She ceased work on 27 April 2006 and has not worked since.
The Respondent made a claim for compensation on the Appellant’s insurer, QBE Workers Compensation (NSW) Limited (‘QBE’) on 23 May 2007. Liability was initially accepted. On 4 July 2006, QBE wrote to the Respondent advising that liability was declined on the basis that “… your alleged injury of 27 April 2006 was not related to your employment as required by section 9A of the NSW Workers Compensation Act 1987”.
This decision was apparently based on a report from Mr Thomas O’Neill, Clinical Psychologist, dated 20 June 2006.
On 28 March 2007, the Respondent filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation and medical expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
The matter was listed for conciliation/arbitration before a Commission Arbitrator on 22 May 2007 when it could not be resolved and proceeded to arbitration hearing. At that hearing, a number of additional documents were tendered, and the Respondent gave oral evidence. In a reserved decision issued on 1 June 2007, the Arbitrator found in favour of the Respondent entering an award in her favour pursuant to sections 36 and 40 of the 1987 Act from 4 July 2006 to date and continuing. An order was made for payment of medical expenses pursuant to section 60 of the 1987 Act.
It is from this decision that the Appellant seeks leave to appeal.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
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.”
Both parties submit that the matter is suitable for a determination ‘on the papers’.
Both parties have prepared detailed submissions on appeal. Having regard to Practice Directions numbers 1 and 6, and all the documents that are before me, including the transcript, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 1 June 2007 records the Arbitrator’s orders as follows:
1.“There be an award for the Applicant in respect of a claim for weekly compensation on the basis of total incapacity for the period 4 July 2006 to 14 October 2006 in accord with sections 36 and 37 of the Act.
2.There be an award for weekly compensation on the bases [sic] of partial incapacity for the period 15 October 2006 to date and continuing at the rate of $275.00 per week.
3.The Respondent to pay the Applicant’s reasonable and necessary medical expenses in accord with section 60.
4.The Respondent to pay the Applicant’s costs as agreed or assessed.”
THE ISSUES IN DISPUTE
The Appellant has cited four grounds of appeal as follows:
“1.That the Arbitrator erred in finding that the Respondent suffered a compensable injury during the course of her employment with the Appellant and finding that the Respondent’s employment with the Appellant was a substantial contributing factor to the Appellant’s condition.
2.That the Arbitrator erred in finding that the Respondent was incapacitated as alleged or at all. Further, the Arbitrator erred in his assessment of the Respondent’s entitlement to weekly compensation pursuant to section 40.
3.That the Arbitrator erred in allowing the Respondent to rely upon evidence which was not served in accordance with the Rules and which was highly prejudicial to the Appellant.
4. That the Arbitrator failed to adequate [sic] or any reasons for his decision.”
In essence, there are four principal issues the subject of complaint by the Appellant, namely:
·injury and causation, and sections 4 and 9A of the 1987 Act.
·incapacity.
·evidence.
·adequacy of reasons.
In her ‘Notice of Opposition to Appeal’ filed on 15 August 2007, the Respondent submits that no errors were made by the Arbitrator, and that the appeal should be dismissed.
THE REVIEW PROCESS
The nature of a review by a Presidential Member on appeal has been succinctly summarised by Deputy President Roche in Graham Healy t/as Hunter Glass Toronto v Santarelli [2007] NSWWCCPD 188 where he said as follows:
“22. The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.
23. The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
24. This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
25. Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).”
These principles must be considered in determining the matter before me.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Injury’ and ‘Causation’ Issue; Section 4 and Section 9A
The Appellant has provided lengthy submissions on appeal, many of which reflect no more than commentary on the evidence before the Arbitrator. Doing the best I can, it seems that the Appellant’s principal complaint is that there was insufficient or inadequate evidence for the Arbitrator to determine that the Respondent had suffered a psychological injury, within the meaning of the 1987 Act, and that employment with the Appellant was a substantial contributing factor to that injury. The Appellant points out that its medical evidence, namely reports from Dr Akkerman, Psychiatrist and from Mr Thomas O’Neill, Clinical Psychologist, expressed the view that the Respondent’s condition was not work related and either attributable to the Respondent’s own “… constitutional predisposition to anxiety …” and/or her difficulties with the English language.
The Appellant makes reference to the decision of Judge Neilson of the former Compensation Court in Stewart v NSW Police Service [1998] 17 NSWCCR 202 (‘Stewart’) and submits that, whilst the Arbitrator made reference to that decision, his finding in relation to ‘psychological injury’ was inconsistent with that decision.
In summary, the Appellant submits that “… the Arbitrator failed to properly consider the evidence of a pre-existing condition contained in the clinical notes, the Respondent’s treating general practitioner’s reports, and to make proper findings in relation to the nature of the Respondent’s condition and how employment was a substantial contributing factor to same …”
In Stewart, Neilson J as he then was quoted extensively from his earlier decision of Kirby v Trustees of the Society of St Vincent De Paul (NSW) NSWCC, No. 20708/94, 11 April 1997, unreported. His Honour said (para 6):
“To succeed in this court, the Applicant must prove that the conduct complained of constituted ‘injury’ within the meaning of the Act. Where, as here, a psychiatric injury is alleged the Applicant must prove either:
(i)That the nervous system was so affected that a physiological effect was induced, not a mere emotional impulse …
(ii)Frustration and emotional upset do not constitute injury … nor, … a mere ‘anxiety state’ …. a ‘straight litigation neurosis’ is not compensable; … a misperception of actual events, due to the irrational thinking of the worker leading to a psychiatric illness is not compensable …
It follows that subsequent rationalisation of earlier innocuous events, which rationalisation leads to psychiatric illness is also not compensable. Furthermore, once the Applicant has established ‘injury’ she must prove that an incapacity for work resulted there from.”
Burke J as he then was in Bartier v State Rail Authority (NSW) (1997) 14 NSWCCR 568 provided a detailed analysis of what constitutes psychological injury, distinguished from ‘emotional impulse’. He considered whether, for there to be a psychological injury, there must be a physiological consequence. He noted that the present section 11A of the 1987 Act “… appears to deal exclusively with an injury that it is psychological and certainly not manifested physically”. His Honour considered a number of authorities on the issue concluding as follows:
“All the Act is concerned with is injury to a worker. A worker is what he is. He is both mind and matter which function as one integrated, symbiotic entity – as a single organism. Whether it is either or both of the perceived elements that is injured is really immaterial. The ultimate question is, has the worker received injury? Has the human organism which is the worker become dysfunctional?”
The Respondent’s explanation of events on 27 April 2006 as set out in her statement was consistent with the history provided to all the doctors she consulted. It was not seriously disputed by the Appellant that the incident and symptoms complained of by the Respondent on 27 April 2006 did not occur. Dr Akkerman in his report of 17 November 2006 opined that “she has a very high trait anxiety and poor English. It is not work related”. He nonetheless considered that the Respondent continued to need treatment in the form of both medication and psychiatric consultation. Mr O’Neill in his report of 20 June 2006 noted that “she said she had what appeared to be a panic attack on the morning of 27 April coming to work, had to stop her car, and went straight to her doctor.” Mr O’Neill concluded “Ms Kim’s problems with anxiety are not substantially work related. They are more related to her own constitutional/anxiety – proneness, and difficulties mastering the English language”.
The Respondent consulted Dr Kisup Kim on 27 April 2006. In a report dated 12 March 2007 Dr Kim stated as follows:
“Diagnosis of injury on 27/4/06 is Anxiety, Depression/Panic attacks brought on by the repeatedly stressful situations from work. Those situations had been due to poor communication between her and her work peers/superiors.”
The Respondent was referred by Dr Kim to Dr Law, Consultant Psychiatrist. In a report dated 13 June 2006, Dr Law stated:
“On 27/4/2006 she had a panic attack when she was driving to work in the morning she was feeling very tense, had sweating in the palms, tightness of chest, palpitations, and a sensation of impending death.”
Dr Law concluded that the Respondent suffered from “… adjustment disorder with mixed depression and anxiety features, as a result of her suffering from accumulated stressors at work”.
The Respondent was also seen by Dr Brian Burke, Consultant Psychiatrist, initially at the request of her solicitor but subsequently for treatment on referral from Dr Kim. Dr Burke in his report of 22 August 2006 also noted:
“… She suffered a panic attack when driving to work on 27.04.06. The attack was fairly typical, consisting in excessive perspiration, pins and needles in her hands and feet, a tightness in the chest and a feeling that she was going to die”.
Dr Burke also concluded that the Respondent was suffering from “… an Adjustment Disorder With Mixed Anxiety and Depressed Mood consequent on the stress she has experienced recently in her work due to what appears to have been victimisation at the hands of some of her fellow workers”.
In short, there was no real dispute that the incident as described by the Respondent occurred on 27 April 2006. Similarly, no issue was raised that the incident did not occur on a journey to work as described by the Respondent.
Did that incident constitute an ‘injury’ within the meaning of section 4 of the 1987 Act? In line with the decision of Burke J in Bhatia to which I have referred previously, it seems to me that, not only were there clear physiological consequences, but also an incident which rendered the worker “dysfunctional”.
Of more significance are issues relating to ‘causation’ and the impact of Section 9A of the 1987 Act.
The Appellant submits that “… the Arbitrator failed to have regard to the evidence when concluding that the Respondent’s limited command of English did not contribute to the Respondent’s condition”. The Appellant refers to comments made by Dr Kim in his report dated 12 March 2007 where he said as follows:
“At work there are daily meetings where they discuss their work and procedures etc which Mrs Kim has not been able to understand fully in English as she had been a migrant from Korea with limited English background. This resulted in the stressful work environment as she was afraid that she had not understood the instruction fully and precisely. I do believe that this had been the main contributing factor to the cause of her current condition.”
However, earlier in his report, Dr Kim had made reference to “stressful situations” at work relating to “… poor communication between her and her work peers/superiors”.
These “stressful situations” were documented in some detail by the Respondent in her statement to which I have referred earlier. I don’t propose to repeat these claims verbatim but in short, they may be summarised as follows:
· inadequate instruction in use of the forklift.
· arguments with colleagues “… over using the high reach forklift because he
and other [sic] would claim that the machine was theirs …”
· difficulty with a fellow colleague or supervisor named Patrick over other
persons utilising the forklift.
· another employee reprimanding and pushing the Respondent over use of the
forklift and commenting “Rosa, you are too slow”.
·complaints or ‘challenges’ concerning pay rates made in front of other workers which the Respondent claimed left her feeling “… very harassed, intimidated, anxious and stressed by his actions in front of other staff”.
· an accusation of doing a job below grade level.
· accusations relating to a failure to properly charge overnight the electric
forklifts.
· complaints relating to the allocation of tasks, in particular, picking duties.
· allegation in relation to a missing laptop computer.
·difficulty with signing “… things at work which was [sic] written in English. The language barrier and the stress to sign paper work, without fully understanding it was frustrating and very stressful.”
Clearly, other incidents were allegedly causing the Respondent stress at work other than some difficulties with English.
The Respondent was cross examined about these incidents at the hearing before the Arbitrator. At page 23 of the transcript, this was put to the Respondent: “… not putting the charge in the forklift properly … it’s a pretty trivial incident isn’t it?” The Respondent denied this claiming that:
“I started to get very angry and worried about that days work, and also I had questions coming into my mind why I did in the way that I was instructed to, so what went wrong, … and I am the kind of person who always work and then whenever I was pointed out a mistake or something wrong, then I like to see what went wrong and what did I do wrong, and I try to find the cause, but because of that I had a lot of burden in my heart.”
In response to the question; “Do you agree with me that the incidents you have referred to in your statement are all, by and large, fairly trivial” the Respondent replied:
“Oh I don’t think it is trivial to me as an employee because this is something that is as important as safety to me, that I follow the instructions properly and I get the job done right so that I will get approval from my supervisor. That is very important to me.”
The Arbitrator’s ‘findings and reasons’, commence at paragraph 29 of his ‘Statement of Reasons’. He noted the Appellant’s submission that the incidents described by the Respondent in her statement were “… trivial in nature and could not individually or cumulatively constitute actions that would bring about the diagnosis suggested by the Applicant’s treating Psychiatrist.”
At paragraphs 30 and 31, the Arbitrator summarised the Appellant’s submissions noting that (para 30):
“… The Respondent would have me accept that the Applicant’s condition is not work related, but is related to her poor English and her high trait anxiety (Dr Akkerman, 17 November 2006). This view was reinforced by the doctor in his subsequent report of 17 January 2007 in which he opined ‘Ms Kim has suffered from a long history of anxiety disorders and fear of driving’”.
In relation to the Appellant’s submission that the Respondent’s limited English skills were the principal cause of any anxiety, the Arbitrator stated (para 31):
“Having in mind that the General Practitioner has treated the Applicant since 1990, one might be excused for accepting that he supported the notion that is [sic] was the Applicant’s inability to fully understand English that precipitated her difficulties.”
At paragraph 32, the Arbitrator stated as follows:
“This needs, of course, to be weighed against the evidence provided by the Applicant’s treating doctors in the form of the two psychiatrists, Dr Burke and Dr Law. It is evident that both doctors conclude the Applicant as having suffered an injury in the form of an adjustment disorder with mixed anxiety and depressed mood consequence [sic] upon the stress experienced in her work with the Respondent”.
The Arbitrator then went on to consider the principles in the decision in Stewart to which I have referred previously before stating at paragraph 33:
“In examining the various incidents which occurred at work as particularised in paragraph 4 of the Applicant’s statement I am satisfied that accepting the uncontested evidence of the Applicant, there was good reason to accept that the Applicant was receiving mixed messages which created a state of anxiety. It appears that the Applicant, being a sole female in a male-dominated environment, was certainly experiencing difficulties in the work place yet she survived there some five years before reaching the point of no return culminating in the incident which occurred on her way to work on 27 April 2006. In this regard, I refer to the conflict of instruction that appears to flow from the supervisor, named Patrick within the statement, and the Team Leader.”
The Arbitrator then concluded as follows (para 34):
“Conversely, the Respondent would argue that the communication issues impacting on her were perceived issues in the relationship with others. I do not accept that the concerns had by the Applicant were perceived nor do I, on the evidence, accept that it was the Applicant’s limited degree of English that contributed to her condition.
Similarly, I am not convinced that the Respondent’s argument that the Applicant suffered from a pre-existing generalised anxiety disorder is substantiated, having in mind reliance for this submission is to be found in the clinical notes … it is pointed out by the Applicant’s Attorney, there is no reference within the past clinical notes that would assist me other than that which relates to incidents concerning stress following the 1993 electrocution of a fellow workmate and the subsequent symptoms of dizziness following loss of blood on menstruation.
I am accordingly satisfied on balance that it is reasonable and correct to accept that the Applicant was a worker employed by the Respondent by the time of an injury having occurred and that such injury was appropriately diagnosed by Dr Burke as an adjustment disorder with mixed anxiety and depressed mood consequent upon stress she experienced in her work with the Respondent.
I am further satisfied that the circumstances surrounding the injury and, importantly, the Applicant’s employment with the Respondent was a substantial contributing factor based on the episodes at work as particularised in paragraph 4 of the Applicant’s statement. I am further satisfied that the Respondent does not satisfy the test of section 11A, save for reference to an issue of promotion I cannot see any relevance of the Section providing circumstances presented to me.”
No evidence was brought by the Appellant to refute the Respondent’s statement as to the nature and effect of the incidents at work she regarded as responsible for her diagnosed condition. Thus there was no real basis for any suggestion, in accordance with the principles in Stewart, that the Respondent’s symptoms were as a consequence of “a misperception of actual events, due to irrational thinking …”
In my view, there was adequate evidence to support the Arbitrator’s finding of fact that the Respondent suffered an injury within the meaning of section 4 of the 1987 Act and that her employment was a substantial contributing factor to that injury. If there is evidence upon which a primary finding of fact could be based, and that evidence is accepted, it is not open to challenge except in limited circumstances. (See Crown Glass & Aluminium Pty Limited v Ibrahim [2005] NSWCA 195). In my view, there was sufficient evidence to support the Arbitrator’s finding of ‘injury’, and a clear explanation by him in relation to allegations of pre-existing ‘psychological’ symptoms.
Whilst the Respondent’s limited command of English may have been a factor in the development of her condition, there were well documented, and uncontested, additional issues which both Dr Burke and Dr Law thought were of greater significance.
I should add that, in the Appellant’s Reply, there are a number of other documents in support of the Arbitrator’s ultimate findings. For example, there is a document entitled “Summary of Concerns re: Rosa from doctor’s reports. 5 July 2006. Prepared by: Amrita Bachu”. Amrita Bachu in an earlier letter was described as “return to work co-ordinator” and “Human Resource Specialist” in the employ of the Appellant. In the document to which I have referred, Ms Bachu documents many of the incidents raised by the Respondent in her statement. Whilst no particular comment is made other than to “summarise” the concerns raised by the Respondent, I note that under the heading “Remuneration”, this statement was made:
“Patrick has confronted Rosa and questioned her for being higher and gave her the, [sic] yet completing lower paid tasks, therefore this increased anxiety as it publicly shamed Rosa.
Team leader Kim approached Rosa recently and commented on her completing lower graded tasks which contributed towards her anxiety.
Solution/recommendations: Supervisor to address allegations with individual workers involved.”
Mr O’Neill in his report of 20 June 2006 noted that, as part of his assessment, he had had “face to face interviews with workplace Human Resource Managers …” including Ms Bachu. Their “responses” are contained at page 5 of his report. In short, these “managers” did not dismiss the Respondent’s claim, rather stating that “… Ms Kim has not approached any of them [managers] regarding performance or interpersonal difficulties”. Mr O’Neill went on to record that Ms Russell, Human Resources Manager, had indicated that the Respondent’s husband had spoken to her and also the company manager, Mr Paul Davis, about concerns he had for the Respondent.
Mr O’Neill (and indeed Dr Akkerman) accepted that the Respondent had some symptoms of a psychiatric nature. Mr O’Neill did not support the Respondent’s claim on the basis that he considered that “… the issues that Ms Kim referred to seemed relatively minor …”. The Respondent specifically denied in her evidence before the Arbitrator that that was the case.
In short, I am not persuaded that the Appellant has demonstrated that the Arbitrator failed to properly consider:
“… The evidence of a pre-existing condition contained in the clinical notes, the Respondent’s treating general practitioner’s report, and to make proper findings in relation to the nature of the Respondent’s condition and how employment was a substantial contributing factor to same…”
Mere disagreement with the outcome of proceedings is not a proper basis for appeal (see Rania Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34).
There was sufficient evidence to support the Arbitrator’s primary findings of fact on these issues, and I am not persuaded that the Appellant has demonstrated any error by him.
The ‘Incapacity’ Issue
The principal area of concern raised by the Appellant on this issue are the “… number of inconsistencies with the medical certificates …” provided by Dr Kim and Dr Burke. The Appellant submits that there was insufficient evidence for the Arbitrator to conclude that the Respondent was totally incapacitated for the period he determined and that “… the medical certificates alone were not sufficient for the Arbitrator to accept that the Respondent was totally incapacitated, particularly given the inconsistency between the Respondent’s two treating doctors.” In the Appellant’s submission, the Arbitrator erred “… in simply accepting the certificate provided by Dr Burke”.
The Appellant makes a further complaint that “.. There are difficulties in accepting the medical certificates provided as there is no evidence to indicate what the Respondent would not be able to do and why she would not be able to do it.”
The Arbitrator dealt with these issues commencing at paragraph 34 as follows:
“In terms of the actual incapacity flowing from this injury, I am to say the least, perplexed by the WorkCover certificates supplied initially by Dr Kim … and subsequently those provided by Dr Burke. I am satisfied, however, that the certificates were commissioned by the Applicant and provided to the Respondent leaving no evidence to the contrary. As is indicated, I can make no sense of the WorkCover certificate provided by Dr Kim and dated 28 June 2006. Clearly, within that certificate he seems to suggest the Applicant as being fit for suitable duties from 17 July 2006.
On balance, I prefer the WorkCover Certificate of Dr Burke which suggests that the Applicant is in fact fit for suitable duties from 14 October 2006. I say this predominately because there is support for Dr Burke’s views from Dr Law, where in his report of 13 June 2006 he opines ‘she is most probably unable to work at the moment’ which of course would fly in the face of a certificate provided by Dr Kim of 28 June 2006. However, to continue to accept Dr Burke’s assessment of the situation would be to accept that the Applicant remained fit for suitable duties until at least 24 May 2007 (based on Dr Burke’s medical certificate of 22 April 2007).”
There was ample evidence to support the Arbitrator’s finding that the Respondent was totally incapacitated from the date liability was denied (4 July 2006) to 14 October 2006, as he clearly explained, such that I reject the Appellant’s submission in this respect.
The Respondent had made a claim for benefits pursuant to section 38 of the 1987 Act. In relation to that claim, the Arbitrator stated at paragraph 35 as follows:
“Turning to the section 38A issue, I must say that I was less than impressed with the Applicant’s attempt to return to the work place. Two applications for work in what appears now to be almost three years, does not in the light of things appear a very worthwhile effort of [sic] the part of the Applicant. More particularly, in accepting, as I do, that there are no physical injuries that impact upon the Applicant, I am at a loss as to understand on what basis the Applicant would not be able to seek employment with an alternate employer doing precisely the same work as she had undertaken for the Respondent.”
The Appellant takes no issue with this finding and indeed accepts it.
The principal issue seems to be with the Arbitrator’s award pursuant to section 40 for the period commencing 15 October 2006 to date and continuing. The Arbitrator stated as follows:
“36.I note in the Applicant’s statement at paragraph 18, she considered that her condition has gradually improved under Dr Burke’s care. I note that statement is actually undated, however, the only treatment the Applicant now undertakes is that of ongoing psychotherapy and adjustment and monitoring of her anti-depressant medication. I note that Dr Burke, in his report of 31 January 2007, indicates that he continues to see the Applicant on a monthly basis. I believe that there is merit to the Respondent’s argument that the Applicant ought to be able to find work in its very lowest in the form of part-time work and at its highest, in comparable employment to that which she had with the Respondent, that is, driving forklifts with a new employer where she was not subjected to the same personnel issues experienced with the Respondent and her colleagues.
37.Doing the best I can with the conflict of evidence I have before me, I believe it appropriate that there be an award for the Applicant in respect of her claim for weekly compensation on the basis of total incapacity for the period 4 July 2006 to 14 October 2006 in accord with section 36 and thereafter in respect of the period 15 October 2006 to date and continuing at the rate of $275.00 per week.”
The Arbitrator then applied “… the Mitchell test pursuant to section 40 …”. He found that pre-injury earnings would have been $775.00 per week, that the Respondent was capable of earning in a position as either a cleaner or shop assistant the sum of $500.00 per week and accordingly, entered an award in her favour at the rate of $275.00 per week. (I should note at this point that the Appellant has claimed that the Arbitrator “… erred in allowing into evidence the Respondent’s Group Certificate for the financial year ending 2004” upon which his findings in relation to pre-injury earnings was based. I will deal with this issue shortly).
The principal issue raised by the Appellant is that the Arbitrator “… erred in his application of section 40 of the Act having regard to some of the findings the Arbitrator made in regards to same”. The Appellant then notes the Arbitrator’s findings in relation to the lack of physical injuries and the Arbitrator’s statement that “… I am at a loss to understand on what basis the Applicant would not be able to seek employment with an alternate employer doing precisely the same work as she had undertaken for the Respondent”.
I accept that this statement, on the face of it, appears to conflict, to some extent, with the Arbitrator’s ultimate finding however, reading it in context, it seems to be more of a comment on the submissions and represents one possible interpretation of all of the evidence.
It seems clear that the Arbitrator accepted that the Respondent was still undergoing treatment and that she had “gradually improved”. This is consistent with the evidence recorded in the transcript that she had, as at the date of arbitration hearing, “not fully recovered” (see pages 21 and 25 of the transcript).
A number of medical certificates from Dr Burke were tendered, the most recent dated 23 April 2007, certifying the Respondent as “… fit for suitable duties”. In earlier certificates, Dr Burke had stated that the Respondent was fit for suitable duties and that “Ms Kim will not be able to work with certain work colleagues until after conflict resolution”.
There was no evidence that any attempt at “conflict resolution” had taken place.
Section 40 requires at least three steps to be taken before an award for incapacity payments may be made: A calculation of what the employee would have earned but for the injury assuming the same or comparable employment; the assessment of the employees post-injury capacity; and the exercise of a discretion. (See Singh v Taj (Sydney) Pty Limited [2006] NSWCA 330.
In submissions before the Arbitrator recorded in the transcript, the Respondent’s counsel submitted that the Respondent may be capable of working as a shop assistant (albeit on a part-time basis). (Page 48 transcript).
Counsel for the Appellant conceded that, if Dr Burke’s certificates were accepted, “… there is a basis for making an allowance pursuant to section 40.” (Page 36 transcript).
Section 40(1) of the 1987 Act provides as follows:
“The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.”
In other words, the section provides a discretion in awarding weekly payments of compensation for partial incapacity.
The Arbitrator was clearly cognizant of the conflicting evidence on the issue of incapacity, but as I said earlier, it was open to him to accept evidence before him to the effect that the Respondent had a partial incapacity for employment being ‘fit for suitable duties’. His ultimate findings were open to him on the totality of the evidence. Whilst certainly a different outcome may have been available, my task is not to further debate the evidence presented by way of a re-hearing but rather to determine whether the Arbitrator made any error of law, fact or discretion.
Whilst no specific reference is made by the Arbitrator to the provision of section 43A of the 1987 Act in determining ‘suitable employment’ his reasons, read as a whole, reflect consideration of the ‘range’ of employment open to the Respondent (see paragraph 36).
Moreover, it is now well established that the Commission is an expert tribunal taken to have some knowledge of wage rates in general (see Akawa Australia Pty Limited v Cassell (2003) 25 NSWCCR 385 at 392).
I do not accept the Appellant’s submission that “… there is no basis for the Arbitrator to have concluded that the Respondent had a restricted capacity to earn”. There was both lay and medical evidence to support the Arbitrator’s ultimate conclusion.
It may well be, as the Respondent asserted in her statement, that her condition will continue to gradually improve under the care of Dr Burke, but the Arbitrator was entitled to base his award on the evidence and circumstances presented by the Respondent at the time of the hearing on 22 May 2007.
As Deputy President Fleming said in M & S Shipman Pty Limited v Larry John Matters [2003] NSWWCCPD 19 (‘Shipman’) at para 34:
“It is a unique feature of the workers compensation jurisdiction that a party may make more than one claim, and consequent application to the Commission, in relation to an injury that essentially arises from the same set of facts. These typically concern further aggravation of an injury, but may also relate to the resolution of symptoms of an injury, and subsequent changes in the level of incapacity and statutory entitlements.”
The ‘Evidence’ Issue
The Appellant submits that Arbitrator erred in admitting further evidence “… as it caused significant prejudice to the Appellant”.
This issue was dealt with by the Arbitrator at paragraph 29 as follow:
“I should say from the outset that whilst allowing the Applicant to be asked questions by her legal representative in terms of her seeking employment, that such application was strenuously resisted by the Respondent. As the transcript will confirm, I indicated that such evidence will be given the appropriate value that it deserved but that it would certainly potentially assist me in some of my concerns that I would have in terms of the Applicant’s compliance with section 38A. Similarly, I noted the Respondent’s objection to my admission of a PAYG Payment Summary for the year ended 30 June 2005. Before that document was submitted into evidence, I did ask the Respondent’s representative as to whether they denied it was the Respondent’s document to which I understand there was an [sic] tacit acknowledgment but no such denial could be proffered. Accordingly, again with the view to giving some clarity as to the actual income generated by the Applicant or at least a comparable figure upon which any subsequent exercise would be considered under section 40 that it would be of assistance to me to have that information before me.”
On appeal, the Appellant maintains its objection to the Arbitrator’s admission of evidence from the Respondent as to her attempts to obtain employment. It is clear from the Arbitrator’s Statement of Reasons that he indeed gave it appropriate weight (see paragraph 35 quoted previously).
The Appellant complains that in the absence of a statement, the Appellant was prevented from “… investigating the assertions made by the Respondent and prejudiced the Appellant’s ability to properly present a case in reply”.
The Appellant makes the same complaint in relation to the Arbitrator’s accepting into evidence the Group Certificate for the financial year ending 2005. I must say I am at a loss to understand the Appellant’s submission that it was not “… afforded an opportunity to investigate the authenticity of the document and was prejudiced insofar as it was unable to adequately respond to the evidence.”
It was the Appellant’s document, and was accepted as so in proceedings before the Arbitrator (see page 17 transcript).
It is appropriate at this point to note the provisions of section 354(2) of the 1998 Act which provides:
“The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.”
The rules also contemplate that the Commission might allow the late introduction of evidence.
As Bryson JA said in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at 25:
“The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions at a hearing before an arbitrator were not conducted in a fair way. The overall and continuing duty under s.355 to use best endeavours to bring the parties to settlement acceptable to all of them must have large influence on the manner in which proceedings are conducted. The environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate; there may be issues of kinds which it is appropriate to deal with in that style and much is left to the discretion of the Arbitrator. The Arbitrator is in a good position to decide on and to impost appropriate controls on the adduction of evidence, by cross examination or otherwise. The Arbitrator will usually be in a position to perceive whether a wish to pursue an issue has a basis, whether it is a sound basis, whether some issue or line of questions is merely exploratory, or for that matter whether questions are merely the product of inventiveness.”
In line with the observations made by Bryson J above, I am not persuaded that the evidence to which the Appellant refers was improperly admitted by the Arbitrator nor that it caused any prejudice to the Appellant. That is certainly so in relation to the Group Certificate, and in relation to the Respondent’s oral evidence, it is clear from the Arbitrator’s ‘Statement of Reasons’ that the evidence, certainly in relation to attempts to obtain employment, was not persuasive in the context of the overall hearing.
The ‘Adequacy of Reasons’ Issue
The Appellant submits that “… there were numerous aspects of the Arbitrator’s decision where there was a failure to give adequate or any reasons for the findings made.” The Appellant then identifies six instances in some detail. They may be summarised as follows:
·failure to give reasons in relation to the medical evidence.
·failure to give adequate reasons in relation to his finding that the Respondent suffered a psychological injury having regard to the Arbitrator’s reference to the decision of Stewart.
·failure to give adequate reasons in relation to the finding of total incapacity.
·failure to give reasons in relation to the finding of partial incapacity and the assessment of the Respondent’s capacity to earn pursuant to Section 40 of the 1987 Act.
In relation to the medical evidence, the Appellant submits that the Arbitrator failed to give reasons for his preference for the opinion of Dr Burke over those expressed by Dr Akkerman and Mr O’Neill. Further, the Appellant submits that “the Arbitrator failed to give reasons as to why he disregarded the opinion and comments of Dr Law [sic – Dr Kim?]… in relation to the cause of the Respondent’s alleged psychological injury and pre-existing conditions.”
At paragraphs 24 to 28 to inclusive of the ‘Statement of Reasons’, the Arbitrator summarised the submissions made by both parties noting for example the Appellant’s submission (at para 25) that “… based on the reports of Dr Akkerman and Mr O’Neill, [the Appellant] would strongly urge me to accept that there was no injury as such, and even if there were then the Applicant has failed to discharge the onus required of her under section 9A”.
At paragraph 27, he noted the Respondent’s submissions in relation to the Appellant’s medical evidence. At paragraph 30, the Arbitrator referred to the evidence obtained under cross examination, and again noted the Appellant’s submissions in relation to its medical and other evidence.
This evidence as the Arbitrator rightly pointed out at paragraph 32 “… needs, of course, to be weighed against the evidence provided by the Applicant’s treating doctors … Dr Burke and Dr Law”. The Arbitrator then concluded:
“Accordingly, the opposing views seem to be that from the Respondent’s perspective, the anxiety is not work related but related to the constitutional/anxiety proneness and difficulty of the Applicant in mastering the English language, as opposed to the Applicant’s medical evidence which appears to be founded upon the stressors associated with the incidents at work”.
Ultimately, the Arbitrator accepted “… the uncontested evidence of the Applicant …” as providing what he described in paragraph 30 as “… the catalyst for determining, I believe, whether or not the Applicant suffered an injury and whether, indeed, such employment was a substantial contributing factor to that injury.
It is clear that the Arbitrator’s preference for the opinions of Doctors Burke and Law was based on an acceptance of the Respondent’s evidence which, as I have said, was unchallenged. Reasons were given in relation to the opinion of Dr Kim at paragraph 31. Reasons were given in relation to claimed “pre-existing conditions” at paragraph 34.
Reasons were given on the issue of ‘injury’ in paragraphs 32 to 34 inclusive.
As to the finding of ‘total incapacity’, that was supported by medical evidence, and reasons were given at paragraph 34. Indeed, the Arbitrator gave clear reasons as to why he accepted the certificate of Dr Burke since it was supported by the views of Dr Law who stated, as at June 2006 that “… she is most probably unable to work at the moment”.
As to the partial incapacity and section 40 issue, the Arbitrator, faced with the ‘conflict of evidence’ and the ‘range’ of options alluded to by the Appellant in its submissions, adequately apprised the parties of the basis of his decision. His reasons on this issue were adequate in the context of the Rules and the requirements as set out in a number of authorities, for example, Liverpool City Council v Trovato [2004] NSWWCCPD 15.
Nonetheless, reasons must adequately disclose the basis of an Arbitrator’s findings on material questions of fact. As McColl JA said in Hevi-Lift (PNG) Limited v Etherington [2005] NSWCA 42:
“The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the Judge refer to all the evidence, ‘where nothing exists but an assertion of facts on differentiated evidence the judicial obligation has not been discharged’: Soulemezis, at 259, per Kirby P”.
In the present case, the Arbitrator clearly indicated the basis upon which he accepted the opinion of the Respondent’s treating psychiatrist, Dr Burke, not only as to the issue of ‘injury’ but also as to ‘incapacity’. Dr Burke had provided certificates as recently as May 2007 certifying the Respondent fit for ‘suitable duties’.
Given the discretionary factors inherent in an assessment pursuant to section 40 of the 1987 Act, I am satisfied that the Arbitrator, in this particular case, has stated: “… generally and briefly the grounds which have led him … to conclusions concerning disputed factual questions …”
It is timely to note the comments of Deputy President Fleming as she then was Shipman (at 84):
“To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.”
I am satisfied that the Arbitrator’s findings and reasons demonstrate that he fairly and lawfully determined the Application such that this ground of appeal must fail.
CONCLUSION
The Arbitrator’s findings were open to him on the totality of the evidence. The ‘late evidence’ relied upon by the Respondent was appropriately admitted and weighed by the Arbitrator and was not prejudicial to the Appellant.
The Arbitrator’s reasons, when read as a whole, were adequate in the context of the Commission’s requirements.
DECISION
The decision of the Arbitrator dated 1 June 2007 is confirmed.
COSTS
The Appellant is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
23 October 2007
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
8
0