Warrumbungle Shire Council v Rao
[2024] NSWPICPD 63
•21 October 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Warrumbungle Shire Council v Rao [2024] NSWPICPD 63 |
APPELLANT: | Warrumbungle Shire Council |
RESPONDENT: | Rabia Rao |
INSURER: | StateCover Mutual Limited |
FILE NUMBER: | A1-W3085/23 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 21 October 2024 |
ORDERS MADE ON APPEAL: | 1. Order 1 of the Certificate of Determination dated 2 November 2023 is revoked. 2. I revoke Order 2 as a consequence of the revocation of Order 1. 3. The matter is remitted for re-determination by a Member of the Commission. |
CATCHWORDS: | WORKERS COMPENSATION – Consideration of evidence of worker and co-workers – assessment of credibility – assessment of evidence of doctors |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr A Coombes, counsel | |
| Bartier Perry Lawyers | |
| Respondent: | |
| Mr G Barter, counsel | |
| Law Partners Personal Injury Lawyers | |
DECISION UNDER APPEAL: | Rao v Warrumbungle Shire Council [2023] NSWPIC 579 |
MEMBER: | Ms D Benk |
DATE OF MEMBER’S DECISION: | 2 November 2023 |
INTRODUCTION
The respondent, an accountant, claimed compensation with respect to psychological injury.
On 2 November 2023, the Commission made the following determination:
“1. The [respondent] suffered a psychological injury in the course of her employment with the [appellant] on 30 July 2021.
2. As a result of the injury, the [respondent] has suffered total incapacity for employment from 30 July 2021 and is entitled to weekly compensation from that date.
3. The parties have liberty to approach for a period of 28 days if the issue of PIAWE cannot be resolved.”
The appellant appeals from the findings 1 and 2 of the Certificate of Determination.
For the reasons that appear below, the appeal is allowed and the matter is remitted for further allocation and re-determination.
On 29 January 2024 (after the present appeal was lodged) the Member issued a further Certificate of Determination in which she determined the pre-injury earnings (PIAWE) to be $1,628.32. There is no appeal from that determination. Further the determination of the PIAWE is not dependant on orders 1 and 2 above. Accordingly, the COD of 29 January 2024 is not affected by the present appeal.
THE MEMBER’S STATEMENT OF REASONS AND FINDINGS
The respondent claimed compensation for psychological injury. She alleged the injury was due to bullying, harassment, excessive workload and lack of support in the course of her employment with the appellant.
The evidence in chief of the principal lay witnesses was provided by written statements. The respondent’s written statement was prepared after the primary statements of the appellant’s most important witnesses, Ms Ann Newsome and Ms Lisa Grammer, had been prepared.
Leave to cross-examine the respondent was sought and granted. Ms Newsome and Ms Grammer were available for cross-examination but were released by the respondent’s counsel.[1]
[1] Transcript of proceedings 2 August 2023 (T), T 40.10.
The Member summarised the statement evidence. The uncontroversial facts are taken from the Member’s Statement of Reasons.[2]
[2] Rao v Warrumbungle Shire Council [2023] NSWPIC 579 (reasons).
The respondent commenced working for the appellant in 2020 as a full-time accountant. She maintained that a stressor was the failure of the appellant to provide her with formal training, supervision or oversight in relation to her tasks. For a short period, the respondent was made the acting Chief Financial Officer (CFO). She was replaced in that role by Ms Newsome, who was appointed in March 2021.
Ms Newsome and the Director of Financial and Community Services were absent in April 2021, and the respondent assumed on an acting basis the duties of the CFO. She said this had the effect of “tripling her workload”. The respondent said she suffered nausea and stomach cramps due to anxiety.
The respondent said that she approached Ms Newsome on 21July 2021 to inform her that she was stressed and anxious and that she felt she was being treated differently to other colleagues. Ms Newsome, in response, sent the respondent an email advising of the Employment Assistance Program (EAP) and an invitation to attend a finance course.
The Member noted that the respondent said “the next significant workplace stressor” related to the uploading of a budget into appropriate software. The respondent said that this task had previously been undertaken by Ms Grammer. The respondent emailed Ms Newsome requesting that she check to see if the document had been loaded correctly.
The Member said that it was this event that resulted in the respondent ceasing work. She quoted from the respondent’s statement at paragraph [24]:
“24. The following day, [Ms Newsome] stormed into my office. She began screaming at me, shouting words to the effect of ‘Now you want me to go run reports and check all of that for you?’ She walked out of the room before I could process what had just happened. A few seconds later, she stormed back in, and I tried to explain that I had just wanted to update her on the issues I had as I did not have the chance to talk to her the day before. However, [Ms Newsome] became angrier as I tried to talk with her. She said words to the effect of, ‘Do you know who I am, I am your boss, I am your boss, I am actually your BOSS’. I lost control of myself as I began to shake out of fear and anxiety and I started crying. I struggled to talk but I tried to say ‘You never give me any guidance, I have asked many times for support and you are never available for me.’ She said to me ‘Oh you really like to victimise yourself, don’t you? STOP victimising yourself, you are not a victim here. I was completely blindsided by her words. The intense stress I was shouldering collapsed on me and I completely broke down. I could not pull myself together and I began to speak with a stammer as my thoughts ran haywire.” (The underlined passages from the respondent’s written statement were omitted from the Member’s quote in the Member’s Statement of Reasons.)[3]
[3] Reasons, [16].
The Member noted the respondent was cross-examined at the hearing. She said the “crux of her evidence was that entries made by her treating doctor did not relate to her, or alternatively she could not remember making such statements. The majority of the cross-examination related to consultations with Dr Kheray that occurred prior to her employment with the [appellant] between 2016 and 2019 relating to troubles with family and her ex-husband.”[4]
[4] Reasons, [18].
The Member noted that Ms Newsome identified performance-based issues and quoted Ms Newsome as being unsure whether the performance-based issues were “stress related” or attributable to a “skills gap”. She paraphrased Ms Newsome’s recollection of the events of July 2021 as follows:
“21. Relevantly, Ms Newsome’s recall of the events of 22 (or 21) July 2021 differs from that of the [respondent]. Her recollection is found in paragraphs 46–49 of her statement. Ms Newsome acknowledges the [respondent] approached her on that day and stated ‘that she needed more support from me’.
22. The statement also reflects that she saw the [respondent] as being conscientious particularly ‘from the way she picked up the audit responsibilities when I was unexpectedly absent from work.’
23. The statement also attaches an email that Ms Newsome composed to the [respondent] one week following the interview on 29 July 2021. The email discusses training and skills and confirms:
‘… the way you picked up the slack when circumstances were that both Kim and I were absent from this office at very short notice is to be commended and indicates the care that you have for your role.’
24. In a supplementary statement dated 30 September 2021, Ms Newsome denies the recall of the discussion made by the [respondent] in paragraph 16 [paragraph [14] above] of these reasons.”
The Member noted the statement of Ms Grammer dated 31 August 2021 which she observed was largely consistent with the evidence of Ms Newsome.
Ms Grammer noted that the respondent “confided a number of personal difficulties” which were identified by the Member in paragraph [9(f)] of the reasons as:
(a) the mice plague and potential health risks to the respondent’s infant child;
(b) the impact of high COVID-19 deaths in India and Pakistan where a number of the respondent’s relatives remained;
(c) concerns about her husband’s isolation in the community and language barrier as a stay-at-home father;
(d) guilt at being a working mother;
(e) stress in connection with her child’s teething, and
(f) issues with her sister-in-law.
The Member said: “Ms Grammer does however state she did not think that the [respondent] had an excessive workload although acknowledges ‘she worked at a level below her in terms of seniority’.”[5]
[5] Reasons, [25].
The appellant relied on a statement from the General Manager, Roger Bailey. The detail of that statement need not be noted.
The medical evidence from the respondent’s General Practitioner, Dr Emmanuel Inyang, was summarised. The doctor said the respondent first consulted the practice regarding the injury on 30 July 2021. The diagnosis was of mixed depression and anxiety due to work related stress arising from undefined workplace expectations and poor on the job training.[6]
[6] Reasons, [27].
The Member quoted from Dr Inyang’s letter of referral to the effect that the respondent was suffering major depression and anxiety disorder and that her problems started when she began working as an accountant at the Warrumbungle Shire Council in October 2020.
The respondent was cross-examined on the clinical notes from the Family Medical Centre at Auburn (Dr Kheray) which the respondent had attended as a patient since 2010.
Dr Abdul Khan, a consultant psychiatrist qualified by the respondent, (report dated 4 August 2022) diagnosed major depressive disorder with anxious distress. Dr Khan “concluded employment was the main contributing factor to her condition resulting in total incapacity from the 30 July 2021.”[7]
[7] Reasons, [30].
The Member said with respect to Dr Khan’s report:
“In relation to past psychiatric history he recorded:
‘Ms Rao denied any pre-existing past psychiatric history. She denied any previous melancholia, mania, hypomania, psychosis, obsessions, compulsions or trauma. She denied any previous psychiatric hospital admissions, deliberate self-harm or suicide attempts’.”[8]
[8] Reasons, [31].
Dr Khan commented on the appellant’s qualified psychiatrist, Dr Neale’s report of 14 September 2021. He quoted from the report at length and said:
“I agree with Dr Neale’s conclusion that Ms Rao’s employment was the main contributing factor to her psychiatric/psychological condition.”[9]
[9] Reasons, [32].
Dr Khan regarded the respondent as totally incapacitated for work from 30 July 2021. He said it was unlikely the respondent would recover her future capacity for work in her pre-injury occupation.[10]
[10] Reasons, [33].
Dr Khan confirmed his previous opinion in his last report dated 15 June 2023.
The Member referred to the report of Dr Neale dated 27 September 2022 as follows:
“Dr Neale was qualified by the [appellant]. Her conclusions are summarised above. She had the benefit of the knowledge of additional matters discussed in paragraph 9(f) above yet still concluded that employment was the main contributing factor to the condition and incapacity. She considered that the [respondent] was not psychologically fit to perform her pre-injury duties as a full-time accountant on account of an ongoing adjustment disorder but did suggest that the [respondent] was fit to work up to 20 hours per week in a low stress environment at a slower pace, subject to rehabilitation provider and occupational therapist assistance.”[11]
[11] Reasons, [35].
The Member thereafter, under the heading “Findings and Reasons”, set out her conclusions with respect to the matter.
The Member dealt with the respondent’s credibility:
“37. The [respondent] was cross examined in this matter via teams. I must conclude, that I did not find her to be an impressive witness. The focus of the cross examination related to the consultations prior to her employment with the [appellant] relating to family and domestic issues. The [respondent] denied these consultations and seemed quite surprised that they were of any relevance to this matter. She failed to answer the questions directly and suggested that perhaps her doctor had incorrectly recorded matters on her file that related to another family member. Whether or not this is the case is uncertain and unlikely, but I cannot ignore the entry made in the notes on 3 March 2017 which states ‘Mental health plan for Paula’. The [appellant] suggests that the reference to Paula may be the name of the mental health practitioner to whom the [respondent] was referred, but there is no evidence of this.
38. During her evidence, the [respondent] had difficulties recalling exactly what problems she had with her brother in 2016 and became quite emotional when recounting her past marital difficulties, although stressed that none of these factors related to her current situation and that she continued to work unimpeded until the incident with Ms Newsome in July 2021.
39. I also cannot ignore the [respondent’s] statement, specifically paragraph 41 in which she stated ‘prior to the subject injury, I did not suffer from psychological or mental health conditions. My personal and family life [were] unproblematic, and I enjoyed great social relationships, good health and overall wellbeing.’”
The Member referred to five consultations between 2016 and 2019 relating to personal circumstances resulting in anxiety and depression. However, the records did not suggest any long term or chronic sequelae.
The respondent’s oral evidence that she had not had any past psychological ill health was inconsistent with the medical notes. The Member regarded this as explained by “the absence of ongoing or sustained mental health symptoms [which] influenced the [respondent’s] statements regarding [her] past psychological history, in that she did not interpret past short live[d] stressors to be relevant as they did not cause any ongoing psychological incapacity.”[12]
[12] Reasons, [40].
The Member made the following important finding:
“As indicated, the oral evidence was not impressive and on that point I agree with the [appellant]. However, overall, when the sequence of events is reviewed in full, I find that the [respondent] has been consistent with her statements regarding her workplace stressors to both her medical practitioners, the investigators, her solicitor and even expanded on non-work related issues with Dr Neale, the [appellant’s] qualified doctor. I cannot make a finding that the [respondent] is not credible with regards to events surrounding the work circumstances.”[13]
[13] Reasons, [41].
The Member attached importance to the pre-employment medical examination. The doctor had certified the respondent as being fit for employment.
The Member considered the credibility of the appellant’s witnesses. She noted that three witnesses were nominated but that it was the evidence of Ms Newsome that was relied on predominantly. The appellant had made Ms Newsome available for cross-examination, although this did not eventuate.
Because it is important to the determination of the appeal, it is necessary to set out the Member’s findings with respect to this evidence in some detail. The Member said:
“44. Ms Newsome’s recall of the discussion that led to the [respondent] ceasing work is vastly at odds with the recall of the [respondent]. In both statements made by Ms Newsome, she focused on disclosures made by the [respondent] in relation to personal stressors (as summarised in paragraph 9(f) above) which Ms Newsome highlighted were significant. Given this, I find it surprising that she did not raise such issues in her email to the [respondent] if they were of such significant concern and specifically if such matters were considered to have an effect on work performance. The email focused on training and communication and so whilst Ms Newsome tends to suggest that there were many personal factors influencing the [respondent’s] state of mind, these were not raised as part of the email dated 29 July 2021. Ms Newsome also acknowledges that the [respondent] took on extra tasks at short notice when she herself was subject to some personal issues. Be that as it may, the statement confirms that the [respondent] approached her regarding work related stress and issues relating to training and communication, which prompted Ms Newsome to invite her to undertake additional training and reassess work focus on existing key strengths.
45. I am not suggesting that Ms Newsome is not credible. Far from it, however, her emphasis on personal matters influencing the [respondent’s] behaviour appears to be an afterthought to explain events, rather than a legitimate concern at the time of discussions in July 2021.”
The Member said that she could not comment on the credibility of Ms Grammer. However, part of her evidence was at odds with Ms Newsome’s statement acknowledging that the respondent had picked up the slack when both Ms Newsome and the Manager, Kim, were absent.
The Member said the respondent may have disclosed some personal troubles to her colleagues but “there were no performance issues, warnings or significant absences arising out of such alleged personal events. … whilst the [respondent] was allegedly afflicted by such troubles, she took on extra tasks to ensure timelines were met, acknowledged by Ms Newsome.”[14]
[14] Reasons, [47].
The Member rejected the appellant’s submission that the respondent had failed to disclose her past and concurrent stressors to various practitioners such that their opinion evidence was not obtained in a “fair climate”. She said:
“This is not a sustainable argument as it is the [appellant’s] qualified medical evidence that exposes such stressors and despite this, concludes employment is the main contributing factor to the current diagnosis and incapacity. … Dr Khan … agreed that the concurrent personal stressors (again mentioned in paragraph 9(f) above) did not play a significant role in her current presentation and incapacity. … Even if she did have underlying personal stressors, there is no evidence that these were the main contributing factor to her incapacity or onset of psychological issues in July 2021.”[15]
[15] Reasons, [48].
The Member directed herself that the controlling principle was that she was required to evaluate “the totality of the evidence to determine the main contributing factor of an injury”. Having referred to AV v AW,[16] the Member said:
“On the basis of the medical and factual evidence, I accept that the [respondent] has suffered a work related injury in the course of her employment with the [appellant] and further that her employment with the [appellant] was the main contributing factor in contracting that illness pursuant to s 4(b)(i) of the [Workers Compensation Act 1987]. I accept the views of her treating medical practitioners and the medico-legal specialists. Whilst I appreciate the argument of the [appellant] in relation to those opinions, the [appellant] has not offered any evidence to the contrary that would completely discount those opinions, instead has cushioned its defence in what can best be labelled conjecture or speculation.”[17]
[16] [2020] NSWWCCPD 9, [76].
[17] Reasons, [50].
Thereafter the Member dealt with the question of incapacity, noting that Dr Neale suggested that the respondent had a residual capacity but accepting Dr Khan “who most recently assessed the [respondent] in July 2023 [confirming] his original opinion that the [respondent’s] ongoing presentation is such that she is totally incapacitated for work.”
Thereafter the Member made the orders in the Certificate of Determination.
THRESHOLD MATTERS
The parties agree having regard to s 352 as follows:
(a) the appeal was lodged in time (s 352(4)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act));
(b) the appeal does not relate to any interlocutory decision (s 352(3A) of the 1998 Act), and
(c) the quantum of the appeal satisfies the threshold for the purpose of s 352(3) of the 1998 Act as the claim is for weekly benefits from 30 July 2021 with a PIAWE of at least $1,313.38.
ON THE PAPERS
The parties agree that it is appropriate for the appeal to be dealt with on the papers.
Section 52(3) of the Personal Injury Commission Act2020 (the 2020 Act), together with Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied in this matter and propose to determine the matter “on the papers” without holding any conference or formal hearing.
NATURE OF THE APPEAL
The appeal is pursuant to s 352 of the 1998 Act, relevantly:
“(5) 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 such error. The appeal is not a review or new hearing.”
It is important to appreciate that the jurisdiction conferred on me is to identify and correct error. In Branir Pty Limited v Owston Nominees (No 2) Pty Limited[18] appears the following:
“… 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.”
[18] [2001] FCA 1833; 117 FCR 424, [28].
GROUNDS OF APPEAL
The appellant relies on the following grounds of appeal:
(a) The Member erred by refusing to consider the appellant’s further written submissions in reply. (Ground 1)
(b) The Member erred in finding that Ms Newsome’s evidence as to non-work-related stressors affecting the worker’s behaviour was “an afterthought to explain events” in circumstances where Ms Newsome was available for cross-examination, was not cross-examined and that proposition was not put to her. (Ground 2)
(c) The Member erred in failing to make a finding of fact as to what occurred in the meeting between the worker and Ms Newsome on 29 July 2021 in circumstances where the worker alleged that meeting was centrally relevant to the worker’s case on causation. (Ground 3)
(d) The Member erred by failing to make findings of fact in relation to the substantial factual disputes between, on the one hand, the worker and on the other, the appellant’s two main witnesses, Ms Newsome and Ms Grammer, as to the occurrence and substance of various events and conversations in the workplace which were directly relevant to the extent of work-related and non-work-related stressors the worker was exposed to. The failure to determine those factual disputes amounted to an error of law in circumstances where these conversations and disclosures were centrally relevant to the “causation” and “main contributing factor” issues. (Ground 4)
(e) The Member erred in finding that Dr Neale had concluded, in her report of 27 September 2022, that the worker’s employment was the main contributing factor to her psychological condition and incapacity. (Ground 5)
(f) As a consequence of the Member’s error in relation to Dr Neale’s conclusion as to causation, the Member erred in concluding that the opinions of the treating and independent doctors were homogenous as to causation and there was no evidence to support the appellant’s argument as to causation or the appellant’s Paric submission.[19] (Ground 6)
(g) The Member erred in finding that employment was the main contributing factor to the worker’s psychological injury and that her psychological condition was contracted in the course of her employment and failed to give adequate reasons for making that finding. (Ground 7)
(h) The Member failed to give adequate reasons for finding that the worker had been totally incapacitated for work since 30 July 2021. (Ground 8)
(i) The Member erred in finding that the worker had been totally incapacitated for work since 30 July 2021. (Ground 9)
Ground 1 – Refusal to consider additional written submissions
[19] Referring to Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 (Paric).
Appellant’s submissions Ground 1
The appellant says that following receipt of the worker’s written submissions in reply on 6 September 2023, the appellant filed and served brief additional written submissions in reply on 11 September 2023. Those submissions addressed two discrete issues arising from the worker’s written submissions in reply, including addressing a clear error in those submissions in relation to Dr Neale’s report of 27 September 2022.
The appellant accepts that at the time it filed and served its additional written submissions it did not have leave to do so, but it sought such leave in the submissions and, by the time the Member came to consider the matter and issue a determination, the worker had until September 2023 provided further written submissions in response.
The appellant submits that procedural flexibility is granted by ss 42 and 43 of the 2020 Act sufficient to permit the Commission to consider submissions received in the absence of a grant of leave for the filing of those submissions “although the decision as to whether to do so is obviously discretionary.”
The appellant submits that the factors relevant to the exercise of discretion favoured an exercise in its favour because:
(a) the additional submissions were brief and confined to two discrete issues;
(b) the additional submissions were filed shortly after the close of written submissions contemplated by the timetable, and
(c) the worker had received an opportunity to reply to the appellant’s additional submissions and exercised that opportunity.
The appellant’s final submission is that in refusing to consider the appellant’s additional written submissions in reply, the Member erred by failing to take all reasonable steps necessary for the proper consideration of the matter before the Commission for determination.
Respondent’s submissions Ground 1
The respondent notes that the appellant did not seek her consent to the filing of further submissions. The respondent prepared further submissions prudently “against the possibility that the further submissions of the appellant would be received unanswered.” The respondent notes that the appellant could and should have taken steps to raise the matter in an application to the Member prior to filing the submissions.
The respondent’s submission is that “[t]he Member came to a [d]etermination that was properly informed by a consideration of all the evidence that was before her.”[20]
[20] Respondent’s submissions, [8].
Appellant’s submissions in reply Ground 1
The appellant makes the point that the respondent does not identify any actual or presumptive prejudice to the respondent that might have been occasioned had the Member considered the appellant’s additional written submissions. The appellant makes the point that it suffered “substantial actual prejudice by reason of the Member’s mistaken reliance on the portion of Dr Neale’s report of 27 September 2022”.[21]
[21] Appellant’s submissions in reply, [6].
Consideration
A grant of leave to consider further submissions is plainly an exercise of discretion on the part of the Member.
The Member dealt with this in paragraph [5] of the reasons. She had noted in paragraph [4] that the cross-examination of the respondent exhausted much of the hearing time. She said:
“… written submissions were received by the [respondent], the [appellant] and then in reply by the [respondent]. I was informed by the Registry that the [appellant] had lodged further submissions in reply. This was not subject to direction and so not accepted into evidence. The [respondent’s] submissions in response were likewise refused.”[22]
[22] Reasons, [5].
The Member did not give any reasons for not exercising the discretion in favour of the appellant, other than what might be implied, namely, the conclusion that the parties had been given sufficient opportunity to present their evidence and submissions.
In Minister for Immigration and Border Protection v SZVFW[23] Gageler J (as his Honour then was) said:
“If and to the extent that the judgment under appeal turned on the exercise of what can be characterised as a ‘discretion’ committed to the court of which the primary judge was a member, the long-settled understanding is that members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion ‘merely because they would themselves have exercised the original discretion, had it attached to them, in a different way’. For appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted ‘to a failure to exercise the discretion actually entrusted to the court’.”[24]
[23] [2018] HCA 30; 264 CLR 541 (SZVFW).
[24] SZVFW, [37].
His Honour then quoted[25] from the “classic statement” in House v King,[26] which included the following:
“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”
[25] SZVFW, [38].
[26] [1936] HCA 40; 55 CLR 499, 504–505.
I am not persuaded that the exercise of the discretion adverse to the appellant was in the circumstances “unreasonable or plainly unjust”. The significant issue would seem to be the matter of Dr Neale’s report dated 27 September 2022 and the Member’s reliance on a portion of the report. The appellant complains that the Member erred in her understanding of the report. The appellant says this has resulted in “substantial actual prejudice”. However, the error with respect to the Member’s reading of Dr Neale’s report is the subject of Ground 5 of the appeal and is fully ventilated in that context.
No error is demonstrated in the Member’s exercise of the discretion in refusing to receive the further submissions in reply. Ground 1 of the appeal is dismissed.
Ground 2 – Ms Newsome’s evidence
Ground 3 – Failure to make relevant findings of fact with respect to the meeting 29 July 2021
Ground 4 – Failure to make relevant findings of fact
Appellant’s submissions Ground 2
The appellant submits that its case on causation relied on the evidence of Ms Newsome contained in her statements of 30 August 2021, 30 September 2021 and 2 June 2023.
The appellant submits that Ms Newsome gave evidence of extensive conversations with the worker as to various non-work-related stressors and her direct observations as to the apparent impact of those matters on the worker, including on her performance at work. Ms Newsome was made available for cross-examination but the worker declined that opportunity.
The appellant submits:
“Whilst suggesting that Ms Newsome’s evidence was credible (Reasons [45]), the Member discounted it, finding that ‘her emphasis on personal matters influencing the [respondent’s] behaviour appears to be an afterthought to explain events, rather than a legitimate concern at the time of the discussions in July 2021’ (Reasons [45]). That finding does not sit easily with the Member’s description of Ms Newsome’s evidence as credible and amounts, in effect, to a finding that Ms Newsome’s account of her conversation with the worker and her contemporaneous observations as to the apparent emotional impact on the worker of non-work-related stressors was not credible.”[27]
[27] Appellant’s submissions, [9].
The appellant submits:
“The Member’s proposition that Ms Newsome’s account of the apparent impact of those non-work-related matters on the worker was a recent reconstruction by Ms Newsome was not put to Ms Newsome in the course of the arbitration and consequently Ms Newsome was not afforded an opportunity to answer and refute that proposition.”[28]
[28] Appellant’s submissions, [10].
It is submitted the Member’s failure to accord Ms Newsome an opportunity to do so constituted a denial of procedural fairness.
Appellant’s submissions Ground 3
The appellant submits that the respondent’s case was to the effect that she had suffered extreme distress as a result of meeting with Ms Newsome in July 2021. The Member described the meeting as the “event that resulted in the [respondent] ceasing work relevantly or as some may say, the watershed moment”.[29]
[29] Reasons, [16].
The appellant says the worker’s detailed account of the purported events was extracted in full in the reasons.
The respondent’s account was given in March 2023 “around 21 months after the relevant meeting and at a point in time where the worker had access to Ms Newsome’s account of the meeting.”[30]
[30] Appellant’s submissions, [11].
Ms Newsome gave a detailed account of the 29 July 2021 meeting, which the Member described as Ms Newsome denying “recall of the discussion made by the [respondent] in paragraph 16 of these reasons”.[31]
[31] Reasons, [24].
The appellant submits:
“While it is correct that Ms Newsome did deny the worker’s version of events (or what she understood to be the worker’s version of events, given her statement was prepared on 30 September 2021, 18 months before the worker gave her version of events), Ms Newsome’s account consisted of significantly more than a denial of the worker’s account. Ms Newsome provided her own detailed version of events which varied substantially from the worker’s version. … it was incumbent on the Member to make a finding as to what transpired at that meeting for the purpose of determining the relevant contribution of work-related and non-work-related causal factors to the worker’s psychological injury. In the absence of findings of fact as to events at the meeting, the Member cannot have undertaken a properly informed assessment of the relevant causal contributors and has failed to provide adequate reasons.”[32]
[32] Appellant’s submissions, [12].
Appellant’s submissions Ground 4
The appellant relies on its submissions under Ground 2 in support of its complaint with respect to Ground 4.
In addition, it submits that the evidence of Ms Grammer was “strongly consistent with the evidence of [Ms] Newsome that, contrary to the thrust and content of the worker’s evidence, in the 4 month period before the worker ceased work in late July 2021 due to her psychological condition, her vocalised complaints in the workplace were predominantly related to multiple non-work stressors that were impacting her during this period and she showed significantly greater signs of emotional distress, tearfulness and upset when she discussed these non-work stressors in the workplace than she did when she discussed any workplace issues or circumstances that may have been impacting on her during this period.”[33]
[33] Appellant’s submissions, [14].
The appellant submits that the Member appears to have placed limited weight on the evidence of Ms Grammer without expressly stating that she did so.
The appellant submits:
“The matters set out by the Member at Reasons [46] were not sufficient to justify the Member’s apparent rejection (or at least the assignment of little weight to) the very consistent evidence of Newsome and Grammer (neither of whose credit was challenged or impugned in the written submissions filed on behalf of the worker) about the multiple non-work stressors which the worker complained about directly to each of them in the four month period prior to ceasing work as a result of her psychological condition in late July 2021. The appellant submits that this amounted to a failure to properly consider and analyse the submissions at paragraphs 13–20 of the appellant’s written submissions of 28 August 2023, a failure to provide adequate reasons and a failure to properly determine the major factual disputes between the evidence of the worker on the one hand and the evidence of Newsome and Grammer on the other. Determination of those [f]actual disputes was a necessary precursor to determining the relevant contribution of work-related and non-work-related causal factors to the worker’s psychological injury. In the absence of findings of fact as to the multiple disclosures by the worker to Ms Newsome and Ms Grammer of a myriad of non-work stressors in the workplace between March and July 2021, the Member cannot have undertaken a properly informed assessment of the relevant causal contributors.”[34]
[34] Appellant’s submissions, [16].
Respondent’s submissions Ground 2
The respondent submits that Ms Newsome’s evidence described as an afterthought “is not the same as describing it as a recent invention.” The respondent submits that that conclusion on the part of the Member was consistent with her final determination and consistent with the Member giving less weight to the evidence of Ms Newsome than she gave to the evidence of Ms Rao. “That does not mean that Ms Newsome’s statements were a recent invention or a deliberate attempt to mislead the Commission. It does mean that her recollection of the events was not found to be as reliable as that of the respondent. The same may be said of the evidence of Ms Grammer.”[35]
[35] Respondent’s submissions, [9].
The respondent submits that Ms Newsome’s opinion as to the effect of non-work related factors attracts less weight than the recollection of the woman who was affected by the factors referred to in the evidence when considered together with the informed opinions of the medical practitioners retained by both sides.
Respondent’s submissions Ground 3
The respondent quotes the report of Dr Neale that Ms Rao developed an adjustment disorder due to a combination of incidents which occurred within the workplace.
The respondent submits:
“As the relevance of the meeting to the Member’s determination is limited to the effect it had in contributing to the injury suffered by Ms Rao, it is the injured worker’s perception of the nature of the meeting that the Member was required to consider, rather than the minutiae of the discussion that the appellant says the Member was required to address. It was not incumbent on the Member to recreate a transcript of the meeting. The facts that the Member was required to find were only that the meeting took place and that the nature of the meeting was such that Ms Rao found it to be stressful.”[36]
[36] Respondent’s submissions, [12].
Respondent’s submissions Ground 4
The respondent relies on its earlier submissions in support of its opposition to this ground.
The respondent submits that Ms Grammer’s perception of the non-work-related factors carried little weight in comparison with the perception of Ms Rao which are conveniently set out in the description in the Earning Capacity Assessment Report prepared by Ms Jurkowski.[37]
[37] Reply to Application to Resolve a Dispute (reply), p 19.
The respondent submits:
“The Member correctly noted that Ms Grammer was junior to Ms Rao and Ms Newsome’s comment regarding picking up the slack when she was away was appropriate. Ms Newsome’s comment that Ms Grammer was responsible for handling most of the matters associated with the audit carries no weight as Ms Newsome was away at the time.”[38]
[38] Respondent’s submissions, [15].
Further, the respondent submits the multiple non-work-related matters referred to by Ms Newsome and Ms Grammer were addressed by Ms Rao at length in her statements in response to searching cross-examination by counsel for the appellant and in interviews with the psychiatrists retained by both sides. “The Member correctly gave Ms Rao’s evidence as to the relative stress associated with all the events to which she was exposed greater weight than to the recollections of her colleagues.”[39]
[39] Respondent’s submissions, [16].
Appellant’s submissions in reply Ground 2
The appellant submits in reply that the submission that the evidence of Ms Newsome should carry less weight than that of the respondent’s own recollection is problematic. “First, unlike the respondent, Ms Newsome has no self-interest in these proceedings … Secondly, it is not Ms Newsome’s ‘opinion’ that is critical – it is her ‘evidence’ as to what she heard, said and saw in the workplace. If the Member considered, as reasons [45] suggests, that Ms Newsome’s evidence on those matters was not credible, Ms Newsome should have been afforded an opportunity to answer that proposition.”[40]
[40] Appellant’s submissions in reply, [7].
Appellant’s submissions in reply Ground 3
The appellant submits that the impact of the July 2021 meeting on the respondent, in a causal sense, must be considered in light of the evidence as to what actually transpired during the meeting and what Ms Newsome observed as to the respondent’s behaviour and demeanour in the course of and following the meeting. “In order to properly consider that issue it was incumbent on the Member to make findings of fact as to what occurred”.
The appellant submits in the context “of a claim for compensation” it cannot be sufficient for causation to be determined “solely on the basis of an allegation made by the respondent … that her feelings were hurt because she thought she was being criticised, without the Member first determining which of the two differing versions of that conversation was preferred and accepted.”[41]
[41] Appellant’s submissions in reply, [8].
Appellant’s submissions in reply Ground 4
The appellant makes the submission that the evidence of Ms Newsome and Ms Grammer was “essentially contemporaneous (as opposed to the respondent’s which was first given by statement almost 2 years after the relevant events), bore no element of self-interest and was cohesive and consistent.”[42]
[42] Appellant’s submissions in reply, [9].
Consideration
It is convenient to deal together with these three grounds of appeal, which relate to the asserted failure on the part of the Member to make relevant findings of fact resolving the conflict in the evidence between the evidence of the respondent and that of the principal witnesses of the appellant.
The substance of the complaint by the appellant is that the consideration by the Member of the evidence of the two principal witnesses for the appellant was inadequate. The essence of the appellant’s complaint in relation to these three grounds of appeal is that the Member’s statement of reasons reveals an inadequate examination of the material relevant to the issue of causation. The Member’s process of fact finding miscarried: The Waterways Authority v Fitzgibbon.[43] For the reasons that follow these grounds of appeal are upheld.
[43] [2005] HCA 57, [130]–[131], per Hayne J.
Section 43 of the 2020 Act provides:
“(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
It is well established that the restrictions and rules which apply to a common law trial do not apply to proceedings in the Commission. Nevertheless, the fact-finding process is essentially the same, the object of both is achieving substantial justice, albeit in the case of the Commission with as little technicality as the matter may require.
The credibility and reliability of the evidence of the respondent on the one hand and Ms Newsome and Ms Grammer on the other were critical to a proper determination of the issues before the Member. But bare credibility findings alone could not resolve the parties’ dispute.
The Member expressed her view as to the credibility of the respondent and Ms Newsome. She declined to express any view as to the credibility of Ms Grammer.
In relation to the respondent she said, “I cannot make a finding that the [respondent] is not credible with regards to events surrounding the work circumstances.”[44]
[44] Reasons, [41].
The Member said of the respondent:
(a) she did not find her to be an impressive witness;[45]
(b) she could not ignore the statement that prior to the subject injury the respondent said she did not suffer from any psychological or mental health conditions. In the same passage the Member noted the respondent’s evidence that her family and personal life were unproblematic,[46] and
(c) of the history derived from the medical notes the Member concluded the explanation for the respondent’s evidence was that the respondent “did not interpret past short live[d] stressors to be relevant as they did not cause any ongoing psychological incapacity”.[47]
[45] Reasons, [37].
[46] Reasons, [39].
[47] Reasons, [40].
Of Ms Newsome’s evidence the Member said she was “not suggesting that Ms Newsome [was] not credible. Far from it,” but she plainly discounted the witness’s evidence as to the personal matters as an “afterthought to explain events, rather than a legitimate concern at the time of discussions in July 2021”.[48]
[48] Reasons, [45].
The Member’s conclusion with respect to Ms Newsome’s evidence that the concern with personal matters was “an afterthought” appears to have been based on the following:
(a) the absence of any complaint about performance issues, warnings or “significant absences” arising from such alleged personal events;[49]
(b) the email from Ms Newsome to the respondent dated 29 July 2021 focused on training and communication and did not raise the many personal factors which Ms Newsome alleged were influencing the respondent’s state of mind, and
(c) Ms Newsome’s statement corroborated the respondent approaching her regarding “work related stress and issues relating to training and communication” which prompted Ms Newsome to invite her to undertake additional training and reassess work focus on existing key strengths.[50]
[49] Reasons, [47].
[50] Reasons, [44].
Even accepting that the conclusion that some of the evidence of Ms Newsome may have been an afterthought, the conflict(s) between the evidence of the respondent and that of Ms Newsome and Ms Grammer were substantial and required the Member to engage with the evidence.
Mere credit-based findings were insufficient to do justice to the parties’ cases. The Member was required to engage with the evidence of the witnesses, determine what evidence was to be preferred and, having made that determination, resolve the dispute.
In Coote v Kelly[51] Leeming JA (agreed to by Basten and Hoeben JJA) said this:
“With respect to the primary judge, … that reasoning cannot be permitted to stand, whichever way it is to be read. It is not that there was a failure to make requisite findings of fact, but rather a failure in the process of fact finding as disclosed by the reasons: see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129]–[130] (Hayne J). It is necessary to ‘engage with, or grapple or wrestle with the cases presented by each party’: see Mitchell v Cullingral Pty Limited [2012] NSWCA 389 at [116] and MM Constructions (Aust) Pty Limited v Port Stephens Council [2012] NSWCA 417 at [134]. As explained by McColl JA in Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [66]:
‘Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried.’”
[51] [2013] NSWCA 357, [39].
To illustrate the nature of the Member’s error it is necessary to provide some detail of the evidence. But I would stress that in doing so I am not intending to resolve the conflicts, nor do I intend to make findings binding on the Member to whom the subsequent hearing is allocated.
The respondent said when the new CFO (Ms Newsome) commenced in April 2021, Ms Newsome subjected Ms Rao to bullying and harassment, such that the workplace became so hostile that Ms Rao dreaded going to work. The respondent said she was not provided with any guidance or training.
Ms Newsome’s evidence in her first statement of 6 September 2021 and her second statement of 7 October 2021 was given before the respondent’s statement of 22 March 2023. She therefore did not have an opportunity to directly answer any of the respondent’s criticisms and allegations.
Nevertheless, at paragraph [15] of her statement of 7 October 2021, Ms Newsome provides a response from which an inference contradicting the respondent’s evidence might (not necessarily would) be drawn when she said:
“I am not aware of any need or request on Rabia’s part for guidance in transitioning back from her Acting Chief Financial Officer (CFO) role to her substantive role as an accountant following my return from leave in May 2021. No concerns of this nature have been raised by her with me. I also cannot identify any need for her to be guided in this transition back to what are her core duties. I can also state that Rabia did not brief me in any substantive way regarding the Acting CFO duties she had been performing prior to my appointment. I did seek to check certain items with her in this regard but found in the few exchanges we had about this that I was not getting any traction or substance in her responses. As a result, I liaised instead with [Ms Grammer] about the material points I needed to cover in my note.”[52]
[52] Reply, p 104.
The respondent says in answer to that:
“At paragraph 15 Ann claimed that I had not approached her for guidance in transitioning back from acting CFO to my role as an accountant. This is a false statement. As outlined in the body of this statement, I approached Ann on numerous occasions to clarify the handover of my duties as everyone was still sending me work for the CFO. Ann bypassed me to communicate with Lisa about the duties of the CFO, which was another example of her treating me differently.”[53]
[53] Application to Resolve a Dispute (ARD), p 17, [76].
The allegation by the respondent is that Ms Newsome is making a “false statement”. The allegation is serious. Ms Newsome is not given any opportunity to respond.
The reasons given by the Member:
(a) do not address the allegations of “bullying”, and “harassment” at all;
(b) do not resolve the conflict between Ms Newsome and the respondent on the respondent’s transition from acting CFO to accountant under the management of Ms Newsome as CFO;
(c) do not address the serious allegation by the respondent that Ms Newsome provided a false statement, and
(d) do not attach any significance to the temporal difference occasioned by the fact that the respondent’s statement evidence was given after the statement evidence of Ms Newsome.
The telephone call from the respondent’s sister-in-law presented a substantial conflict between the respondent’s evidence and that of Ms Newsome and Ms Grammer. At paragraph [73] of her statement the respondent says this:
“73. At paragraph 34, Ann claimed that I appeared stressed and upset due to my sister-in-law calling me about troubles with their family business. Ann stated that I was in tears and felt ‘sick to the stomach’ due to my conversation with her. This is a mischaracterisation of events. My sister-in-law called me, but she was not abusing me; she was offering my husband and I an opportunity to come back to Sydney and work there. I turned down her opportunity as my husband and I wanted to stay in Coolah at the time. My sister-in-law was offended that I had drawn a boundary between us, but she did not have any choice but to accept. I did not ever feel pressured to return to Sydney when she did not have the authority to call us back. Moreover, the family business did not need more workers when the restaurants were closed during the July 2021 lockdown. The conversation took place in early May 2021, I believe both Lisa and Ann fabricated a story and came up with a date sometime in the middle of July which only implies how desperate they are to cover up what happened to me in that office.
74. I was in tears and felt sick to the stomach due to my ongoing anxiety in the workplace. I was under immense stress and was often crying at work. I had developed stomach cramps due to my stress at work and had consulted my GP about this in April 2021, prior to this phone call. My emotional state did not have any connection to my supposed family issues, as presented by Ann. Ann took this conversation with my sister-in-law out of context and dramatised the issue.”[54] (emphasis added).
[54] ARD, pp 16–17.
In her statement of 6 September 2021, Ms Newsome deals with this at paragraph [34]:
“In early to mid-July 2021 (I am not sure which date), I came to work on a Monday morning to find Rabia in tears at her desk. … In this respect, I was aware that prior to their move to Coolah, Rabia’s husband had worked in a family restaurant in Sydney. Rabia told me that the business was now struggling, and that the blame was being levelled at her for this. She said she felt ‘sick in the stomach’ about the matter and the confrontation with her sister-in-law. I also recall Rabia saying that one of these conversations with her sister-in-law had lasted for approximately 3 hours.”[55]
[55] Reply, pp 58–59.
Ms Grammer said in her statement of 3 September 2021 at paragraph [22]:
“I am not sure of the exact date, but at some stage in July 2021, I came into the office one day and noticed Rabia looking very upset and tearful. I asked her what had happened, and she referred to having had a telephone call with her sister-in-law. She said that she and her sister-in-law had had ‘words’ and that the sister-in-law was accusing her of keeping her husband away from their family. She said that her sister-in-law wanted her husband to come back to Sydney to help their family by working with them as a chef in a business owned by his brother. Rabia told me that she felt ‘sick’ because of this phone call and that she was not able to sleep. I did my best to reassure her, telling her not to worry and advising that it was her life and her decision to make, but she still appeared upset.”[56]
[56] Reply, p 98.
At paragraph [89] the respondent said:
“At paragraph 22, Lisa stated that I appeared upset due to my conversation with my sister-in-law. As stated above in my response to Ann Newsome’s statement, I was not distraught due to the supposed issues with family back in Sydney. ... I only returned to Sydney when the workplace stress became overwhelming.”[57]
[57] ARD, p 21.
The Member makes no comment on the witnesses’ reliability. There is no dispute the telephone call occurred nor is there any dispute that the respondent was upset and crying. The event would then appear to have had a significant emotional impact.
The respondent says she was crying because of anxiety and workplace stress. There is no interrogation by the Member as to the correctness of this assertion by the respondent. There is no consideration of why the respondent would be suffering workplace stress early on Monday morning; what the nature was of the events that led to the workplace stress; or why the respondent would even mention the telephone call with her sister-in-law to Ms Newsome and Ms Grammer given the poor relationships between them.
The Member did not analyse the evidence with a view to resolving the conflict.
The respondent said in the context of Ms Grammer’s evidence in relation her husband’s employment:
“At paragraphs 14 to 15, Lisa noted that she had provided advice about securing employment for my husband. As stated above in my response to Ann Newsome’s statement, I had never raised my husband’s employment status as a cause for concern. I believe that [Ms Grammer] and Ann Newsome matched their stories to make a reliable statement. I did not seek advice or comfort form either Lisa or Ann in relation to my husband’s employment status.”[58]
[58] ARD, p 20, [87].
The allegation is that the witnesses have colluded. The Member, with respect, was required to reconcile such matters and determine which evidence was to be preferred.
In late July, commencing about 21/22 July 2021, there appear to have been a number of discussions and meetings between the respondent and Ms Newsome. The Member refers to the evidence relevant to these matters in paragraphs [15]–[16] and [21]–[24] of the reasons. Her conclusions and findings with respect to this evidence are in paragraph [44].
At paragraph [16] of the reasons, the Member refers to the events there quoted as having “resulted in the [respondent] ceasing work relevantly ... the watershed moment”. Despite the fact the evidence of the respondent and Ms Newsome are in direct conflict concerning these events, the Member does not analyse the evidence in any detail.
The Member quotes the respondent’s version at paragraph [16] of the reasons. So far as those events are concerned, Ms Newsome says in her statement of 7 October 2021:
“28. On Wednesday 28 July 2021, Rabia sent me an email regarding a budget upload for the Civica Train, a copy of which is annexed and marked ‘E’ along with my response to her on the following day. I took Rabia’s email to me on 28 July 2021 to mean that the body of work referred to was complete, had been reviewed by her and was final-review-ready in a test environment. This body of work was a high priority task. …
29. On the evening of 28 July 2021, I attempted to review the work provided by Rabia after returning from working in Coona. On commencing my review, I found that the work was not review-ready and was deficient in various respects. …
30. On the morning of Thursday 29 July 2021, I arrived at work and went to speak to Rabia in order to ascertain the status of the work. I cannot recall the exact words of the conversation but in essence the conversation went as follows: I said to her in relation to the budget upload comments to the effect of ‘I’ve had a look at this, and the budget numbers are not there.’ She said, ‘I haven’t done any checking of the data.’ I said, ‘I don’t understand. Your email said that you had updated the budget and that once reviewed it could be approved by me.’ She said, ‘No, that meant you had to go and check everything and that I needed assistance with it.’ I said, ‘I’m sorry, I thought you meant that it was finished and ready for me to approve.’ She said, ‘No, it’s got all these problems.’ At that point, I recall saying, ‘OK, I’ll go and sort it out,’ before leaving Rabia’s office.”[59]
[59] Reply, pp 108–109.
Ms Newsome states she was very unhappy about the work, that her tone was serious but that she did not raise her voice or have any kind of tantrum. She denied saying to the respondent “Do you know who I am? I am your boss”; she also denied telling the respondent to stop victimising herself. She denied that the respondent was crying.
The Member did not attempt to determine which version of these events was to be preferred. For example, she does not consider in detail the email evidence which bore upon these events.
Firstly, in the email of 28 July 2021, the respondent says:
“I have updated the budget in Civica train environment for Water, Waste & Sewer Expenditure. Once reviewed and approved by you, I will update in live system.”
That email seems to be consistent with Ms Newsome’s interpretation, and not consistent with the respondent’s statement at [23] “I just didn’t know what to do, so I sent an email to Ann saying that it was uploaded and if she check. I don’t recall if I wrote anything further, but thought that I would explain everything when she came back the next morning.”[60]
[60] ARD, p 6.
Secondly, the email clearly says: “Once reviewed and approved by you, I will update in live system.” There is no request to check it. There is no suggestion of an expectation that she and Ms Newsome would meet “in the morning” when the respondent would “explain everything”.
Thirdly, in an email dated 29 July 2021 timed at 10.07am, exhibit E to Ms Newsome’s statement of October 2021, she says of the respondent’s email dated 28 July 2021 (paragraph [125] above):
“Your email below did not indicate that there was any issues.
On reading your email I had thought that the data in train would be ready to be reviewed and approved.
I was somewhat surprised to find that the budget data did not appear in the reports and that only limited checking of data had occurred.
That the budget data does not appear in the reports is an indicator that there is an issue with the budget loads.
Can you please out line [sic] the steps you plan to take to resolve.”[61]
[61] Reply, p 116.
There is nothing unreasonable in that email. It is an email by the CFO enquiring of an accountant in her department as to why certain things have not been done.
There is no complaint in the email trail of overbearing behaviour by Ms Newsome. There is no suggestion by the respondent that she was distraught.
The Member’s discussion of these events is at paragraph [44] of the reasons. She says Ms Newsome’s recall of these events is “vastly at odds with the recall of the [respondent]”. The Member does not embark upon or engage with the conflict between the evidence of the respondent and that of Ms Newsome concerning these events. She plainly prefers the respondent because Ms Newsome did not mention the personal factors in the email of 29 July 2021. But there is no consideration of all of the other evidence relevant to this critical event.
The Member found it “surprising” that no personal issues were raised in the email of 29 July 2021 (referring to the email timed at 2.09pm[62]). However, the purpose of the email was to advance the respondent’s professional career, not to resolve her emotional problems.
[62] Reply, p 79.
It is difficult to see what the Member thought Ms Newsome should have raised by way of personal issues in what are business emails.
The email of 29 July 2021 timed at 2.09pm was a follow up of the discussion about managing the work. It was not likely to be a discussion about personal stressors. What the email does is contradict the evidence of the respondent and confirm the evidence of Ms Newsome.
The respondent says that there was a meeting on 21 July 2021 after everyone left the office in which the respondent said that she told Ms Newsome that she felt that she was being treated differently from everybody else.
She said “I became so overwhelmed by my emotions as I was relaying everything on my mind and started to cry. I told her that I just needed more guidance from her.” The respondent said that the next day Ms Newsome sent her an email to go for EAP support, together with an invitation to a finance course. The respondent said:
“Her email came as a slap on my face, as I had expressed that I wanted more support from her as my CFO, but she had laid me off as a problem for EAP. I felt that she was purposely mocking me by sending me to a basic finance online training course, as though all my problems were due to insufficient knowledge. I felt disillusioned by her superficial offer of support.”[63]
[63] ARD, pp 5–6.
Ms Newsome says of this meeting (in her statement dated 6 September 2021):
“After the close of business on the 22 July 2021, Rabia came into my office and indicated that she wanted to talk to me. During this discussion initially I gave Rabia the opportunity to speak uninterrupted while I listened to her issues and concerns. Rabia referred to general issues she was reportedly experiencing at work, saying that she needed more support from me. In response I requested she identify a suitable time for us to have regular catch ups. I also discussed the possible courses that were available for her to attend to assist with any local government skills gap. These included a finance intensive course which ran over a week at Bathurst and a shorter one-day course in local government matters. I also requested that Rabia advise some areas where she had existing skills, so I could ensure that she had tasks that she was comfortable with. Rabia advised that she wanted tasks outside her skill set to learn new things. She said that she was ‘not very interested’ in tasks for her existing skill set. She also advised that at work, she felt that we should not be under any stress and that rather than prepare the financial statements in-house, we needed to get contractors to do the work. As this is a key component of our jobs, I found this to be a surprising and unrealistic comment. I initially just let her keep venting about these matters before explaining to her something to the effect of, ‘We wouldn’t be getting contractors to do what is part of our own job’.”[64]
[64] Reply, pp 62–63, [46].
On 23 July 2021 Ms Newsome sent an email to the respondent, “As discussed the details for [EAP] and a finance course that is coming up”.[65]
[65] Reply, p 76.
On 29 July 2021 at 2.09pm Ms Newsome sent the respondent an email referring to a meeting “last week” when “we spoke about managing your work”.[66]
[66] Reply, p 79.
The email on Ms Newsome’s evidence was the result of a meeting on 22 July 2021, the context of which is at paragraphs [46] to [48] of her September 2021 statement.[67]
[67] ARD, pp 62–63.
The respondent recounts this meeting at paragraph [21] of her statement,[68] but she says the email that she received was the email of 23 July 2021[69] advising her of the EAP and the finance course.
[68] ARD, p 38.
[69] Reply, p 76.
The respondent said in paragraph [82]:
“Ann lied in her supplementary statement about a discussion where she would provide me guidance and support and also about sending invitations that I never accepted. These invitations were sent to me on my last day of work after she realised she had been treating me like a doormat and had gone too far.”
The email of 29 July 2021 (2.09pm) plainly is an invitation and an attempt to provide support. The emails of 23 July 2021 were likewise supportive. Whether it was in fact a genuine offer on the part of Ms Newsome or some response to the poor treatment of the respondent by Ms Newsome was an issue the Member was required to engage with and resolve.
Ms Newsome says after the discussion on 22 July 2021:
“Rabia failed to follow up with suggested times for us to meet to discuss any work issues that she had. She also did not indicate if she had any interest in the courses that would be available. I gave Rabia the opportunity to respond, waiting until 29 July 2021 to hear from her on this. When she did not respond, I created the series of daily catch-up appointments which she did not accept or otherwise respond to. Annexed hereto and marked ‘H’ is an extract from my outlook diary showing the planned catch-up appointments. I also followed this up with an email dated 29 July 2021 summarising the work-based matters and opportunities for further training we had addressed at our previous discussion from the week before. A copy of this email is annexed hereto and marked ‘I’. I received no response from Rabia to this email.”[70]
[70] Reply, pp 63–64.
The difficulty with the manner in which the Member disposed of the evidence of the appellant’s principal witnesses is that neither the respondent nor the witnesses have any real understanding of why their evidence was not accepted. Particularly is this significant in the context of patent conflicts in the evidence where the witnesses are available for cross-examination but the respondent, through her counsel, declines to cross-examine.
The result favourable to the respondent meant the evidence of Ms Newsome and Ms Grammer, which was contradictory to the evidence of the respondent, was rejected. The rejection of their evidence in circumstances where the respondent has expressly accused them of lying, fabricating evidence and collusion and they have not been called to give evidence in answer to those allegations is simply unfair to the witnesses and to the appellant. Furthermore, the failure to cross-examine in circumstances where the opportunity was available should have made it easier for the Member to accept the witnesses’ evidence even in a jurisdiction which does not favour oral evidence.
It is no answer to suggest as the respondent does that the relevant enquiry is as to the respondent’s perceptions of the events. There was evidence available which would have permitted the Member to make findings of fact. There is no medical evidence that the respondent’s perception was otherwise than the reality. The Member does not suggest it is a case of the respondent’s misperception of reality.
Finally, as will be demonstrated in the context of a consideration of the appeal in relation to the medical evidence, the failure to establish the factual matrix meant the appellant’s medical evidence on causation was not adequately considered.
The Member has failed to engage with or grapple with or wrestle with the case presented by the respondent. The causation finding cannot stand. Grounds 2, 3 and 4 are upheld.
Ground 5 – Dr Neale’s evidence
Ground 6 – Homogeneity of medical evidence
Ground 7 – Main contributing factor
Appellant’s submissions Ground 5
The appellant submits that Dr Neale produced reports dated 14 September 2021, 27September 2022 and 22 June 2023.
The Member found in relation to Dr Neale’s report of 27 September 2022 that Dr Neale was aware of non-work-related stressors identified by the appellant as potentially relevant to causation “yet still concluded that employment was the main contributing factor to the condition and incapacity”.[71] The appellant submits that the Member was correct to observe that Dr Neale was aware of non-work related stressors. However, the Member’s finding as to Dr Neale’s conclusion as to causation is manifestly incorrect.
[71] Reasons, [35].
The appellant quotes from page 37 of Dr Neale’s report. It submits Dr Neale’s opinion is contrary to the Member’s finding at [35] of the reasons. Dr Neale did resile from her earlier view to the effect that the events in the workplace were the main contributing factor to the work injury.
The appellant observes that this is the precise error that it sought to avoid by the supplementary written submissions which were not considered by the Member.
Appellant’s submissions Ground 6
The appellant observes that the Member said, “I accept the views of [the respondent’s] treating medical practitioners and the medico-legal specialists”[72] and that the Member concluded the opinions of those doctors as to causation was homogenous – that is, all support the proposition that employment was the main contributing factor to the worker’s psychological injury. The appellant submits that the Member could not have arrived at that conclusion without relying on the earlier misapprehension as to Dr Neale’s ultimate opinion expressed in her September 2022 report.
[72] Reasons, [51].
The appellant submits:
“Having (erroneously) reached the conclusion as to the homogeneity of the medical opinions as to causation, the Member went on to find that ‘the [appellant] has not offered any evidence to the contrary that would completely discount those opinions’.”[73]
[73] Appellant’s submissions, [22].
That finding was predicated on the Member’s error as to Dr Neale’s opinion as to causation. Dr Neale’s actual opinion as to causation was expressed at page 37 in the report of 27 September 2022. The report was clearly capable of being “evidence to the contrary that would completely discount the opinions of the worker’s treating independent doctors”.
The appellant submits that the Member failed to analyse, consider and determine the “Paric submission” because of the Member’s error as to Dr Neale’s opinion as to causation. In a supplementary submission, the appellant submits that this also amounted to a failure to provide adequate reasons.
Appellant’s submissions Ground 7
The appellant submits that the Member correctly identified the approach to be taken in relation to the applicable causal test.[74] However, by reason of the Member’s error as to Dr Neale’s opinion in relation to causation, the Member’s consideration of the competing causal factors was flawed as it proceeded on the basis that all rather than only some of the medical evidence supported the conclusion that the employment was the main contributing factor to the worker’s injury.
[74] Reasons, [50].
Similarly, the Member’s failure to resolve the dispute between the worker and Ms Newsome as to the events of 29 July 2021 and the failure to resolve the disputes between the worker on the one hand and Ms Newsome and Ms Grammer on the other in relation to the evidence for the worker’s multiple disclosures of a myriad of non-work stressors between March and July 2021 prevented the Member from undertaking a properly informed assessment of the relevant causal factors.
Respondent’s submissions Ground 5
The respondent submits that when all of Dr Neale’s reports are read together there is ample evidence for the Member to come to her conclusion regarding causation.
The respondent submits:
“There is a significant difference between having a doubt regarding an opinion and forming a different opinion. Dr Neale did not resile from her opinion at page 37 of her report of 27 September 2022, she simply acknowledges that she is in doubt following an invitation to prefer the observational evidence of Ms Newsome and Ms Grammer to the experiential evidence of the [respondent].”[75]
[75] Respondent’s submissions, [19].
The respondent submits that there was no error and that “[g]iven the form of the questions put to her Dr Neale had little option other than to agree with the conclusion sought from her but she does not disavow her earlier opinion of September 2021. She offered no contrary opinion.”[76]
[76] Respondent’s submissions, [20].
Respondent’s submission Ground 5 (refrain)
The respondent submits:
“Until such time as Dr Neale was pressed into ambivalence there was homogeneity in the medical opinions. The later expression of doubt does not detract from the weight that ought be given to her earlier evidence or that of the treating medical practitioners and the [independent medical examiner] retained by the respondent.”
The respondent submits that Dr Neale’s altered opinion was based on a false assumption and yet remains equivocal. The false assumption is that Dr Neale was not fully appraised of relevant evidence in preparing her report of 14 September 2021. The Paric submission was properly considered and correctly dismissed by the Member for the reasons she gave.[77]
[77] Respondent’s submissions, [21]–[23].
Respondent’s submission Ground 6
The respondent submits that this submission does not raise any new matters. Even if the Member was wrong in saying that all medical evidence supported the conclusion that employment was the main contributing factor to the worker’s injury, the overwhelming preponderance of the medical evidence is to that effect, and there is no medical evidence to the contrary.
The respondent submits that the Member’s reasoning was clear and uninfected by error.
Appellant’s submissions in reply Grounds 5 and 6 (referred to as ‘Ground 5 (refrain)’ in the respondent’s submissions)
The appellant submits that the fact that Dr Neale did not express a contrary view is not indicative of her maintenance of her initial opinion. It is simply a reflection of the fact that she was confronted with two diametrically opposed versions of events and (unsurprisingly) came to the view that she was unable to choose between those versions so as to form a view as to causation.
The appellant submits that Dr Neale was asked to assume that the evidence of Ms Newsome and Ms Grammer should be preferred to that of the respondent. That is not a false assumption. The appellant submits that it is reflective of the findings the Member should have made in relation to the respective weight to be accorded to the evidence of Ms Newsome and Ms Grammer on the one hand and the respondent on the other. Moreover, Dr Neale had not previously been asked to make assumptions as to the respective weight to be given to the evidence of Ms Newsome and Ms Grammer and the respondent and she quite properly did not seek to resolve the conflicting version of events.
Dr Neale’s ultimate opinion in her report of 27 September 2022 did not support the respondent on the issue of injury and main contributing factor. Once this is acknowledged, then all of the submissions at paragraphs [21]–[23] of the appellant’s submissions are applicable and valid, and the contention at paragraph [26] of the respondent’s submissions that the Paric submission was properly considered by the Member cannot stand.
Consideration
The Member said this:
“On the basis of the medical and factual evidence, I accept that the [respondent] has suffered a work related injury in the course of her employment with the [appellant] and further that her employment with the [appellant] was the main contributing factor in contracting that illness pursuant to s 4(b)(i) of the Act. I accept the views of her treating medical practitioners and the medico-legal specialists. Whilst I appreciate the argument of the [appellant] in relation to those opinions, the [appellant] has not offered any evidence to the contrary that would completely discount those opinions, instead has cushioned its defence in what can best be labelled conjecture of speculation.”[78]
[78] Reasons, [51].
In her report dated 27 September 2022, Dr Neale was asked to consider a question enumerated as “5”. The question with preamble was 7 pages long (from page 27 to page 34).[79] At the end of the long preamble, which included references to Paric, Ramsay v Watson[80] and Wigmore on Evidence 1940, the doctor was asked this:
“Please discuss and comment on the discrepancies between the history provided to you by the worker at your previous examination of her, and the broadly consistent evidence of Ann Newsome and Lisa Grammer in their attached statements which is markedly different to the evidence of the worker.”
[79] Reply, pp 236–243.
[80] [1961] HCA 65.
Notwithstanding the cumbersome way in which the task was approached by the appellant’s solicitors, Dr Neale nevertheless provided an answer of clarity. She said:
“I note the significant disparity between Ms Rao’s history and that provided in the statements of Ann Newsome and Lisa Grammer.
I note the interaction with Ms Newsome reported by Ms Rao, which led to her psychological crisis and going off work, is significantly different to the events reported by Ms Newsome on that day.
Furthermore, I note the disparity between Ms Rao’s concerns about her workload and the reports of Ms Newsome and Ms Grammer of the workload.
I note the multiple non-work-related factors that Ms Newsome and Ms Grammer report Ms Rao raised while at work as being stressful, including concerns about not being home with her child, concerns about her husband being isolated, worries about being away from Sydney and her husband being socially isolated and notably the reported incident in July 2021 described by both Ms Grammer and Ms Newsome where Ms Rao reportedly discussed a conversation with her sister-in-law accusing Ms Rao of taking her husband away from his family. Both Ms Newsome and Ms Grammer report that Ms Rao was significantly distressed and stated she felt sick and was noted to be distressed when recounting that phone call. However, when I raised this with Ms Rao, she completely denied that this event occurred.
As noted in my history above, I spoke with Ms Rao about all the reported stressors that had been raised by Ms Newsome and Ms Grammer and Ms Rao strongly denied that any of these were significant stressors for her. I do note that the statements of Ms Newsome and Ms Grammer are broadly consistent with each other.”[81] (emphasis added)
[81] Reply, pp 243–244.
The doctor is then asked a further question enumerated as “6” which goes for about a page and a half and concludes with the following question:
“Alternatively, based on the above assumptions, do you consider the worker’s history is so unreliable that you cannot express a considered view, one way or the other, on whether the workplace events alleged by the worker, as opposed to the multiple non-work stressors operating on the worker during the same period, were or were not the main contributing factor to her psychological injury.”[82]
[82] Reply, pp 245–246.
Again, the doctor answers concisely and to the point, as follows:
“In answering this question, I have been asked to assume that the evidence of Ms Newsome and Ms Grammer should be preferred to the contrary evidence of Ms Rao.
I find it extremely difficult to make a decision on this as Ms Rao’s history both in my initial interview and on my review of her today, is completely different from the consistent evidence provided by Ms Newsome and Ms Grammer.
Therefore, unfortunately, I consider that Ms Rao’s history is so unreliable that I cannot express a considered view one way or the other as to whether the workplace events as opposed to multiple non-work stressors were or were not the main contributing factor to her psychological injury.”[83] (emphasis added)
[83] Reply, p 246.
The Member’s conclusion at paragraph [51] that “the [appellant] has not offered any evidence to the contrary that would completely discount these opinions” is, with respect, incorrect. It is incorrect because the Member did not determine the veracity of the evidence offered by the respondent on the one hand and the appellant’s principal witnesses Ann Newsome and Lisa Grammer.
As the specialist makes clear, there were significant differences in the evidence of the witnesses and the respondent denied being significantly distressed with respect to the sister-in-law’s telephone conversation and strongly denied all of the “reported stressors that had been raised by Ms Newsome and Ms Grammer” as being “significant stressors for her”.
Had the Member determined the conflicting issues then the basis for the medical opinion would have been established. Dr Neale, on the assumption that Ms Newsome and Ms Grammer’s evidence was accepted, found the respondent’s history “so unreliable” that she was unable to express a view as to whether the workplace event as opposed to the multiple non-work stressors were or were not the main contributing factor to her psychological injury.
Furthermore, the Member said that she was not suggesting Ms Newsome was not credible and she declined to comment on the credibility of Ms Grammer,[84] but in order to address Dr Neale’s opinion with respect to causation it was necessary for the Member to determine the preferred evidence with respect to the history of the events. It was not possible to maintain a generalised abstracted view of credibility. The Member was required to make a determination with respect to these specific matters of importance in contributing to the respondent’s psychological ill-health.
[84] Reasons, [45]–[46].
The Member was in error in her conclusion that there was no contrary evidence from the Appellant on the issue of causation. More importantly, because the Member failed to determine the underlying factual matrix, it was not possible for her to reach a soundly reasoned conclusion with respect to the legal issue of what was the main contributing factor in the onset of the illness.
In my view, Grounds 5, 6 and 7 are established.
Grounds 8 and 9 – Incapacity
Appellant’s submissions Ground 8
The appellant submits that, in order to comply with rule 78 of the Personal Injury Commission Rules, the reasons needed to be sufficient to enable the Member’s reasoning process to be discerned, reading the reasons as a whole and applying a beneficial construction. The appellant submits: “Unfortunately, the Reasons in relation to incapacity do not reach that requirement”.
The appellant submits that the Member’s reasoning as to incapacity is contained in two sentences in [52] of the reasons. The Member acknowledges the difference of opinion between Dr Neale and Dr Khan to the extent of the worker’s incapacity at various points of time. Her reasons do not contain an explanation for the Member’s apparent preference for Dr Khan’s opinion over that of Dr Neale.
The appellant submits:
“Moreover, the Reasons, so far as they relate to incapacity, make no reference to the report of [Ms] Jurkowski (Reply 117) which was in a similar vein to that of Dr Neale in that Ms Jurkowski was of the opinion that the worker retained a partial capacity for work. The opinions of Dr Neale and Ms Jurkowski run contrary to the Member’s observation at Reasons [52] as to the ‘bulk’ of the medical evidence supporting total incapacity since 30 July 2021. Given that the evidence on incapacity consisted of the opinions of Dr Neale and Ms Jurkowski on the one hand and Dr Khan and the worker’s GP on the other, the Member’s assertion as to the nature of the ‘bulk’ of the evidence on incapacity is difficult to understand and further emphasises the complete lack of reasoning underpinning (or at least exposed by the Member as underpinning) the Member’s findings as to incapacity.”[85]
[85] Appellant’s submissions, [28].
Appellant’s submissions Ground 9
The appellant submits that in the context of Ground 8 the Member was asked to consider two competing bodies of evidence as to the extent of the worker’s incapacity over time. The Member failed in any adequate fashion to resolve the dispute to the extent of the worker’s incapacity particularly in the periods 30 July 2021 to 26 September 2022 and 27 September 2022 to 21 June 2023. In the absence of any real engagement by the Member with that dispute or resolution of it, the Member erred in concluding that the worker remained totally incapacitated since 30 July 2021.
Respondent’s submissions (Grounds 7 and 8)
The respondent submits that the Member’s reasoning was clear and uninfected by error.
The respondent submits:
“Despite the initial optimism, expressed by Dr Neale in her September 2021 report, that Ms Rao (consistent with her expressed hopes) would return to suitable employment, that did not prove to be the case and, in her report of 22 June 2023 at page 9, Dr Neale expressed the following opinion as to Ms Rao’s capacity to work:
‘It is my opinion that Ms Rao, as a result of her major depressive disorder, is totally incapacitated from work at this time. In particular, I consider her difficulties with concentration, low motivation, fatigue, and anxiety are the main barriers to her being able to regain capacity for work.’”[86]
[86] Respondent’s submissions, [27].
Ms Jurkowski’s report should not carry the same weight as independent medical examiners retained by both sides. The respondent submits:
“In any event her opinion in October 2021 was that Ms Rao ‘would benefit from more psychological treatment before attempting to return to work’ and it was provided prior to the marked deterioration in Ms Rao’s condition noted by Dr Neale. Her earlier opinion, based on shared optimism at the time, does not detract from the consideration given by the Member to the ‘bulk’ of the medical evidence.”[87]
[87] Respondent’s submissions, [28].
The respondent submits the path of reasoning exposed by the Member is readily understandable.
Appellant’s submissions in reply Grounds 8 and 9 (referred to as Grounds 7 and 8 in the respondent’s submissions)
The appellant submits that the opinion of Dr Neale as at 22 June 2023 is an assessment “at this time”. That qualification means that, so the appellant submits, the “assessment of the respondent’s incapacity as at 22 June 2023 cannot, absent some express retraction by Dr Neale of her earlier views on the subject, displace her prior assessments of the respondent’s capacity at the time of the earlier examinations. The submission at [paragraph [31] of the respondent’s submissions] is afflicted by a similar erroneous assumption to the effect that Ms Jurkowski’s opinion as to the respondent’s capacity at the time of her assessment must fall away by reason of the subsequent assessments of incapacity by other medical practitioners.”[88]
[88] Appellant’s submissions in reply, [15].
Consideration
The report of Dr Neale dated 22 June 2023, which the appellant says was attached to an Application to Admit Late Documents, was not in evidence before the Member,[89] nor is it before me. I therefore disregard any submissions based on its content.
[89] See the documents in evidence listed in the reasons at [7]. A search of the PIC file indicates the appellant’s AALD was rejected by the Registry.
The Member disposed of the issue of incapacity with the brief statement:
“… the bulk of medical evidence in this matter is overwhelming, in that the [respondent] has and continues to suffer total incapacity for employment from 30 July 2021 to date and continuing as a result of her workplace injury. Dr Neale did suggest that the [respondent] had a residual capacity, however, Dr Khan, who most recently assessed the [respondent] in July 2023 confirmed the original opinion that the [respondent’s] ongoing presentation is such that she is totally incapacitated for work.”[90]
[90] Reasons, [52].
Dr Neale says in her report of 27 September 2022:
“It is my opinion that Ms Rao was fit to return to work when I last saw her in September of 2021. While I do consider that she has experienced relapse of her Adjustment Disorder in that time, it is my opinion that she has likely retained working capacity in that time though I do note that Ms Rao had a baby six months ago and thus had been on maternity leave.”[91]
[91] Reply, p 249.
Dr Khan in his report of 15 June 2023 said that he regarded the respondent as totally incapacitated from 30 July 2021 to date.[92]
[92] Application to Admit Late Documents dated 25 July 2024, p 5.
The predominance of the medical evidence supports a finding of incapacity. The dispute is whether the worker remains totally or partially incapacitated. There is in my view no error in the Member’s reliance on Dr Khan. There would appear to be support for the worker’s continued totally incapacity. The appellant submits that Dr Neale has not retracted her previous view that the worker was partially incapacitated.
That may or may not be correct. I detect no error, however, in the Member’s adopting the view of Dr Khan in preference to that of Dr Neale.
So far as the report of earning capacity assessment prepared by Ms Jurkowski is concerned, her opinion would seem to be as follows:
“The assessor does not believe Ms Rao is fit to return to pre injury duties as a full time accountant at Council. It appears Ms Rao has had no psychological treatment until recently. The assessor believes Ms Rao would benefit from psychological treatment before attempting to return to work. The assessor believes she could have a more successful opportunity to return to work at Council or elsewhere following psychological treatment.”[93]
[93] Reply, p 126.
Later in the report the assessor says:
“The assessor believes Ms Rao requires psychological treatment before she returns to work. She could then return on a graduated return initially 16 hours per week and upgrade to full time in the next 6 months.”[94]
[94] Reply, p 126.
Although the Member did not refer to this report, it does not in my view support the proposition that the Member was in error in her conclusion that the worker was totally incapacitated. Ms Jurkowski’s report is dated 13 October 2021 and as at that date she plainly did not regard the worker as fit for work until further psychological therapy had been undertaken.
I would not uphold the appeal with respect to Grounds 8 and 9. However, in so far as Order 1 of the Certificate of Determination is revoked, the underlying premise of Order 2 is removed and that order must also be revoked.
SECTION 352(6A) RE-DETERMINATION ON APPEAL
The respondent has requested that in the event the appeal is successful, the matter should be re-determined by the Presidential member who determines the appeal. This is to avoid the respondent being re-traumatised by having to give additional evidence.
For the following reasons I decline to adopt this course:
(a) the Member heard the evidence of the respondent and I have not;
(b) had the Member approached the task of determining the matter as I have said she was required to, the same or a different result may be achieved;
(c) on a rehearing, the Member to whom the matter is allocated should be free to consider all of the evidence;
(d) the appellant will doubtless wish to have the material the subject of the rejected AALD considered;
(e) it would be wrong of me to make findings on the basis of the documentary case when the appellant was successful at first instance of obtaining leave to cross-examine the respondent;
(f) I have submissions directed to an appeal under s 352(5) of the 1998 Act, that is to say identifying what are said to be errors in the Member’s determination. I have not received submissions directed to a final determination of the parties’ rights, and
(g) determining the matter having regard to the correction of the errors I have identified does not necessarily mean success for a particular party.
CONCLUSION
Order 1 of the Certificate of Determination dated 2 November 2023 is revoked.
I revoke Order 2 as a consequence of the revocation of Order 1.
The matter is remitted for re-determination by a Member of the Commission.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
21 October 2024
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