Yarrawonga and Border Golf Club Ltd v Williamson - [2021] NSWPICPD 37

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Yarrawonga & Border Golf Club Ltd v Williamson [2021] NSWPICPD 37
APPELLANT:	Yarrawonga & Border Golf Club Ltd
RESPONDENT:	Ylleyna Williamson
INSURER:	Hotel Employers Mutual Limited
FILE NUMBER:	A1-6401/20
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	9 November 2021
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 17 February 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – weekly compensation – work capacity – adequacy of reasons – whether Arbitrator failed to provide adequate reasons – Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 applied – consideration of entirety of the Arbitrator’s reasons – held that the Arbitrator provided adequate reasons
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M Poulos, solicitor
McCabe Curwood Lawyers
Respondent:
Mr A B Parker, counsel
Slater & Gordon Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr M Perry
DATE OF MEMBER’S DECISION:	17 February 2021

INTRODUCTION AND BACKGROUND

The essential facts are not disputed and are taken from the Arbitrator’s Statement of Reasons in the Certificate of Determination dated 17 February 2021.[1]
[1] Williamson v Yarrawonga & Border Golf Club Ltd [2021] NSWWCC 49 (reasons).
Ms Williamson (the respondent) was employed by the Yarrawonga & Border Golf Club Limited (the appellant) between 10 May 2019 and 20 February 2020. She alleged that she suffered psychological injury during the course of employment. She alleged that her injury was caused by the employment conditions to which she was subjected, including lack of support, excessive workloads, unrealistic expectations, bullying and harassment.
By an Application to Resolve a Dispute dated 4 November 2020, Ms Williamson claimed weekly compensation from 20 February 2020 to date and continuing and medical expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act).
Ms Williamson relied on s 4(a) and (b) of the 1987 Act to assert that she had sustained injury or, in the alternative, that she had sustained a disease injury. In the latter case, the deemed date for the injury was 20 February 2020.
The parties agreed that the respondent’s pre-injury average weekly earnings were $1,183.70.
The employer (the appellant in the present proceedings) disputed that Ms Williamson had received an injury, that the employment was either a substantial or the main contributing factor to any injury or disease and that Ms Williamson had any lack of current work capacity or any entitlement to s 60 expenses under the 1987 Act.
The Arbitrator found for Ms Williamson and made an award pursuant to ss 36 and 37 of the 1987 Act from 20 February 2020 to date and continuing, plus an award for Ms Williamson for medical and like expenses under s 60 of the 1987 Act.
The appeal challenges the sufficiency of Arbitrator’s reasons with respect to s 32A of the 1987 Act.

CERTIFICATE OF DETERMINATION

On 17 February 2021, the Workers Compensation Commission issued a Certificate of Determination as follows:
“The Commission determines:
1.     The [respondent] has sustained a disease injury within the meaning of the Workers Compensation Act 1987 (the 1987 Act) as a result of the nature of her employment with the [appellant] between August 2019 and 20 February 2020.
2.     The deemed date of the disease injury is 20 February 2020.
3.     The nature of the disease injury is Adjustment Disorder with Mixed Anxiety and Depressed Mood (chronic) under DSM-5.
4.     There is an award for the [respondent] pursuant to s 36 of the 1987 Act at the rate of $1,124.52 per week between 20 February 2020 and 21 May 2020 and then pursuant to s 37 of the 1987 Act at the rate of $946.96 per week between 22 May 2020 to date and continuing.
5. There is an award for the [respondent] for s 60 expenses pursuant to the 1987 Act.
6.     Liberty to apply in respect of the calculations and periods above or in relation to any de-identification application.
7.     There is credit to the [appellant] for any payment of weekly compensation already made between 20 February 2020 and 6 May 2020.”

THE ARBITRATOR’S STATEMENT OF REASONS

The issue on appeal is a comparatively narrow one, namely, whether the Arbitrator erred by failing to provide adequate reasons with respect to the conclusion reached regarding s 32A of the 1987 Act. Nevertheless it is appropriate to expose the Arbitrator’s reasons and some of the evidence more broadly.
At the arbitration, the appellant relied principally upon the reports of Dr D Miller dated 14 April 2020 and 11 December 2020. The reports were admitted over objection by Ms Williamson.
The objections related to Dr Miller’s qualification and her reliance on various source material in circumstances where such material was not in evidence. The Arbitrator accepted that Dr Miller was appropriately qualified[2] and disposed of the second ground of objection on the basis that s 354 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides that the Commission is not bound by the rules of evidence and may inform itself in such manner as a proper consideration of the matter permits.[3]
[2] Reasons, [4].
[3] Reasons, [5].
Dr Miller’s report dated 14 April 2020 identified under the heading “Sources” the following:
(a)    WorkCover NSW Certificate of Capacity by General Practitioner Dr Mya Moe Aung dated 21^st February 2020;
(b)    Response to Questionnaire by General Practitioner by Dr Mya Moe Aung dated 18 March 2020;
(c)    Investigation of Harassment Claim dated 24 October 2019, and
(d)    Human Resources Engagement dated 19 February 2020.
The supporting documentation lodged with the Reply to Application to Resolve Dispute did not include items (iii) and (iv). The Arbitrator placed importance on the absence of these documents and on the fact that Dr Miller did not have the respondent’s 13 March 2020 statement.[4]
[4] Reasons, [84].
Dr Miller’s reliance on the materials not in evidence before the Arbitrator is patent from a consideration of her report dated 14 April 2020:
(a)    Under the heading “Issues” she refers to Ms Williamson’s “Statement of Events to a Human Resources interviewer on 4 October 2019”. She summarises the respondent’s interaction with Ms Lennon observing that the harassment investigation concluded with a finding that there had been no harassment or bullying by Ms Williamson.
(b)    Dr Miller said: “Ms Williamson kept referring back to her incident with Ms Christine Lennon how she feels it wasn’t resolved.”
(c)    Dr Miller quoted from a discussion with Human Resources on 19 February 2020, where “it was established that Ms Williamson attempted to have a meeting in regard to our policies and procedures as she still felt that her case (with Ms Lennon) was not resolved. The report stated that Ms Williamson has not been back to work since this discussion.”
Dr Miller further summarised “the documents provided”, (these documents were not before the Arbitrator) as follows:
“It is also important to note from the documents provided that Ms Williamson struggled in her role as a Duty Manager. On several occasions, staff have not been able to find Ms Williamson at work, she has engaged in duties that are not part of her role, whilst neglecting other duties which are inherent in her role, she has not been able to manage the duty rota and on occasion, has permitted staff members who erroneously attend a shift to continue to work despite the budgetary effect that this creates. Ms Williamson has been accused by Human Resources of ignoring directives from senior staff, requiring excessive support from other Duty Managers, whom she at times has had to shadow as she has been unable to fulfil the skills inherent to her role. At times, Ms Williamson has left the facilities in an unacceptable manner and not checked that they were properly cleaned, or has left doors unlocked. Finally, when senior management have attempted to discuss their concerns with Ms Williamson, she becomes upset and returns home early on those occasions.”[5]
[5] Dr Miller’s report dated 14 April 2020, ARD, p 33.
Not all of the material relied upon by Dr Miller to form her opinion was before the Arbitrator, as the Arbitrator makes clear:
“84. Dr [Takyar] was also in a better position than Dr Miller to make this assessment. He had material which included the [respondent’s] 13 March 2020 statement, a document which includes the [respondent’s] full history as presented to the Commission. Dr Miller appears not to have had that document. She did have other documents, including, it seems, an investigation report and earlier statement, which included a range of information, upon which she has relied, and which underpins to some extent her opinion. That information has not been put into evidence by the [appellant], nor has there been any explanation by the [appellant] for such omission.
85. I also accept the submission for the [respondent] that Dr Miller has gone beyond her role as an expert psychiatrist by attempting to draw attention (‘it is also important to note from the documents’ …) … to selective pieces of information to suggest the [respondent] was not able to perform her role in an acceptable manner. I give no weight to that evidence and reject it. The [appellant] was not even positing such a case itself.”
Dr Miller accepted that Ms Williamson had described significant psychiatric symptoms.[6] However, Dr Miller discounted the importance of Ms Williamson’s description because the symptoms were given in the exact order in which they appear in DSM-5. She dismissed these psychiatric symptoms as self-reporting or malingering. As Dr Miller expressed it, she was “concerned that given that the symptoms were provided in the order that they appear in DSM-5, … there may even be an element of malingering.”
[6] See p 5 of the report dated 14 April 2020, ARD, p 35.
The Arbitrator, correctly in my view, said:
“… if Dr Miller is opining that the order in which the [respondent] presented her psychiatric symptoms necessarily means that she was malingering, I do not accept that evidence. There is no, or no adequate, explanation for such comment. Dr Miller did not even expose the detail of the particular order in which the [respondent] did give the symptoms to her - let alone then benefitting the reader with the order that DSM-5 lists the symptoms.”[7]
[7] Reasons, [91].
Dr Miller was asked to provide a diagnosis and she said that Ms Williamson was distressed due to the workplace interpersonal conflict she experienced with Ms Lennon and the negative feedback she received from her employer. She said:
“… whilst I do not wish to invalidate Ms Williamson’s emotional distress, it is my opinion that the symptom list she provided is questionable given that it was presented in the exact order in which it appears in DSM-5. Unfortunately, this brings her symptom profile into question and it is my opinion that she is either displaying self-reporting bias or Ms Williamson is unfortunately malingering.”[8]
[8] ARD, p 36.
Dr Miller’s supplementary report dated 11 December 2020 reviews the reports of Dr Takyar and Dr Sowden. She disagrees with the opinions provided by each. She reasserts her previous opinion.
The appellant did not introduce into evidence the reports relied on by Dr Miller for her opinion adverse to Ms Williamson’s credit. It is, with respect, a very serious matter to suggest the worker may have been malingering or that she was dishonestly making up symptoms by reference to the diagnostic criteria in DSM-5.
There was no evidence before the Arbitrator to support Dr Miller’s proposition that Ms Williamson may have been malingering. There was no evidence that the symptoms described by Ms Williamson were not genuine. Plainly genuine symptoms of an illness described in DSM-5 will appear in an order and on occasion(s) in the order and using language similar to that in which the symptom complex is described taxonomically in DSM-5. These are not without more matters impugning the respondent’s integrity or evidence.
The Arbitrator rejected the submission that Ms Williamson was not a witness of credit.[9] The appellant does not challenge that finding.
[9] Reasons, [79].
Dr Miller opined that the respondent was “not suffering from any psychiatric injury as defined in DSM-5 or ICD-10 … [but] is experiencing an emotional upset in the context of an industrial dispute …”.[10] She added the further opinion relevant to the appeal as recorded by the Arbitrator:
“In relation to [current work capacity], Dr Miller believes that the [respondent] has ‘immediate and full capacity to return to work’ with the [appellant] in her substantive role at her previous hours. Alternatively, if that job was not available, ‘she has immediate and full capacity to work outside the golf club in any role of her choosing for which she is qualified’.”[11]
[10] Reasons, [43].
[11] Reasons, [49].
Dr Ash Takyar’s report dated 1 July 2020 was based on materials that were before the Arbitrator namely:
(a)    unsigned statement of Ms Williamson;
(b)    worker’s injury claim form;
(c)    psychologist report of Dr Sowden dated 2 April 2020;
(d)    workers compensation certificates of capacity dated 27 February 2020, and 5 March 2020, and
(e)    medico-legal report of Dr Miller dated 14 April 2020.
The history in Dr Takyar’s report was based substantially on Ms Williamson’s unsigned statement. This document was before the Arbitrator and counsel for the employer “said there was no issue from the [appellant] about the statement being unsigned”.[12]
[12] Reasons, [11].
Dr Takyar found current psychiatric symptoms, including low mood of mild to moderate grade, reduced sleep, initial insomnia and early morning waking after which Ms Williamson was unable to return to sleep, degraded concentration, loss of focus, memory difficulties and reduced energy levels. Ms Williamson told Dr Takyar that she had suicidal ideation every day, though she denied any acute self-harm or suicidal ideation, intent or plans on review.
Ms Williamson described for Dr Takyar high grade anxiety, sleep and concentration deficits and fatigue. She had muscle tension and felt hot and sweaty when she became anxious. She was irritable and presented with psycho-motive fidgeting and restlessness on review associated with her anxiety.
These symptoms led Dr Takyar to a diagnosis of adjustment disorder with mixed anxiety and depressed mood (chronic) under DSM-5. Dr Miller records essentially the same symptom complex at pages 3 and 5 of her report but she declines to offer a psychiatric diagnosis as defined by DSM-5 or ICD-10 because she views the symptoms as “self-reported symptoms in the exact order in which they appear in DSM-5” or Ms Williamson is malingering.
The Arbitrator preferred Dr Takyar’s opinion and rejected the opinion of Dr Miller.
He said:
“55. Dr Takyar found that the [respondent] developed a psychiatric condition in the form of an adjustment disorder with mixed anxiety and depressed mood (chronic) under DSM-5 and that such developed as a result of her work-related circumstances, and that her employment was the main contributing factor to that injury. He also found, on balance, the [respondent] ‘did not have psychiatric capacity from 20 February 2020 to the current date’ – and that such was a consequence of the psychological injury as a result of the employment. He opined also that the [respondent] requires at least 20 sessions of psychology treatment as well as a referral to a psychiatrist for monthly review. He thought the prognosis for the future was guarded because of the lack of access to treatment and the entrenched psychiatric symptoms.
56. Dr Takyar disagreed with Dr Miller’s view:
‘that there is no diagnosable psychiatric … (condition) …, based on the history I obtained – there was clear evidence of a range of psychiatric symptoms relating to anxiety and depression … no evidence of inconsistency between Ms Williamson’s symptoms and her mental state suggestive of malingering’.”
The Arbitrator found Ms Williamson to be a witness of credit. He rejected Dr Miller’s opinion to the contrary and the appellant’s submission that Ms Williamson exaggerated or embellished the causative events.
The employer’s submission to this effect was rejected on the ground that there was no evidence to contradict Ms Williamson’s statements. Furthermore “the [respondent’s] 13 March 2020 statement is lengthy and detailed in relation to the events that she states, and believes, she was exposed to between about August 2019 and February 2020.”[13]
[13] Reasons, [79].
The Arbitrator said:
“Despite that level of detail, including the naming of a number of persons who might reasonably be supposed to be not only easily identifiable but also in the [appellant’s] camp, there was no explanation by the [appellant] for there being no evidence put on from any witness to challenge the [respondent’s] statements.”[14]
[14] Reasons, [80].
The appellant, in the proceedings below, called no evidence to contradict Ms Williamson as to the events in the course of employment causative of her injury. Even so, the Arbitrator “[acknowledged] the [respondent’s] statements should not necessarily be accepted at face value simply because there is no evidence to the contrary and internal or external inconsistencies in her statements need[ed] to be considered”.[15] Nevertheless, the Arbitrator accepted Ms Williamson’s statement evidence.[16] There is no appeal from this finding with respect to her evidence.
[15] Reasons, [81].
[16] Reasons, [93].
The evidence of Dr Miller was rejected by the Arbitrator and the evidence of Dr Takyar was preferred. The Arbitrator expressed his reasons for the preference of Dr Takyar’s opinion as follows:
(a)    Dr Takyar conducted a clinical analysis (“mental state examination”) of the respondent’s presentation. There was no such analysis by Dr Miller.[17]
(b)    Dr Miller concluded that there was no diagnosable psychiatric condition “based on the history I obtained” but Dr Takyar found clear evidence of a range of psychiatric symptoms relating to anxiety and depression.[18]
(c)    Dr Takyar had the respondent’s statement of 13 March 2020 which contained the full history as presented to the Commission. Dr Miller did not appear to have that document but she did have other documents, including an investigation report and an earlier statement which the Arbitrator found underpinned her opinion to some extent, but that the information and contents of those materials were not put into evidence by the employer. There was no explanation by the employer for it not doing so.[19]
(d)    The Arbitrator accepted the worker’s submission that Dr Miller had gone beyond her role as a psychiatrist by attempting to draw attention “to selective pieces of information to suggest the [respondent] was not able to perform her role in an acceptable manner.” The Arbitrator gave no weight to that evidence, which he rejected, with the observation “the [appellant] was not even positing such a case itself.”[20]
(e)    Dr Miller said Ms Williamson was either engaged in “frank malingering” or that there was an element of “self-reporting bias”. The Arbitrator pointed out that there was no explanation as to what Dr Miller meant by these two terms or as to the precise difference between them.[21]
(f)    Dr Takyar disagreed with Dr Miller’s view and specifically said that he found psychiatric symptoms relating to anxiety and depression, that there was no evidence of inconsistency between the symptoms and a mental state suggestive of malingering. The Arbitrator preferred Dr Takyar’s opinion in this regard.[22] He said that there was no adequate explanation for Dr Miller’s comment that Ms Williamson was malingering.[23]
(g)    On the issue of self-reporting bias the Arbitrator referred to DSM-5 for assistance as to the meaning of that concept which he said may involve “some unconscious and unintentional exaggeration of some … of the symptoms or history”. He said expressly “I accept that may be so. That is not to suggest that I do not generally accept the evidence of the [respondent]. I do accept her evidence. In particular, I accept she suffered significant bullying and harassment, particularly by RB, CL and PC. I also accept that her managers, particularly GF and KH, were unsupportive of her.”[24]
[17] Reasons, [82].
[18] Reasons, [83].
[19] Reasons, [84].
[20] Reasons, [85].
[21] Reasons, [86].
[22] Reasons, [87].
[23] Reasons, [91].
[24] Reasons, [93].

Later in the reasons the Arbitrator expands on this point:
“In these circumstances, even if there may have been some unconscious or unintentional exaggeration by the [respondent] in the reporting of some of her history or symptoms, her perceptions are relevant in satisfying the test on injury arising out of or in the course of the employment. And even if some of those perceptions were to some extent flawed, I find they were real, and not external or imaginary events. I also make this finding in relation to the submissions of Mr Barnes [counsel for the appellant before the Arbitrator] about the [respondent’s] evidence being embellished or exaggerated.”[25]
[25] Reasons, [95].
The Arbitrator found Ms Williamson’s employment was the main contributing factor to the psychological injury described by Dr Takyar: “adjustment disorder with mixed anxiety and depressed mood (chronic) under DSM-5.”
On the issue of Ms Williamson’s capacity, the Arbitrator found:
“Mr Barnes has pointed out the [respondent’s] relatively extensive work history and education. But even after taking that into account, I find the [respondent] has not had any [current work capacity] from the time she left work on 20 February 2020 to date and continuing. This is the clear evidence of Dr [Takyar]. It is also the clear evidence of Dr Aung. The only question mark Dr Aung expressed in this respect was as to when the [respondent] might become fit in the future.”[26]
[26] Reasons, [98].
Dr Aung was the treating general practitioner. The Arbitrator referred to an opinion from Dr Htwe, a doctor in the same practice. He had evidently told the employer that Ms Williamson would be able to return to work gradually and resume the inherent requirements of the duty manager position in 6 months. There was no report from Dr Htwe, the opinion was taken from an email quoting extracts of Dr Htwe’s letter. The Arbitrator said, “even if the opinion of Dr Htwe in this respect was fully and correctly reported, it only goes so far as to say that his expectation would be that the [respondent] would be able to gradually resume the inherent requirements of the duty manager’s position from about late April 2021.”[27]
[27] Reasons, [99].
The Arbitrator said:
“I do not accept the opinion of Dr Miller in relation to [current work capacity]. Dr Miller does not accept there is a diagnosable psychiatric condition in any event and I have not accepted that evidence. Dr Miller has opined that the [respondent] has immediate and full capacity to return to not only her pre-injury employment but also to work outside that employment in any role of her choosing for which she was qualified. This evidence is also against the overwhelming weight of the other evidence. It is inconsistent with the opinion of Dr [Takyar]. It is also inconsistent with Dr Sowden’s observations and the medical certificates of Drs Aung and Htwe.”[28]
[28] Reasons, [100].
The Arbitrator then assessed the current work capacity in accordance with s 32A of the 1987 Act, saying:
“I take into account the ‘suitable employment’ factors I need to have regard to in s 32A(a). I note the [respondent’s] ‘age, education, skills and work experience’, but find the nature of the [respondent’s] ‘incapacity and … details provided in medical information’ makes it far more likely that she in fact has no [current work capacity] and has not had any since 20 February 2020. I also note s 32A(b) and disregard whether suitable work or employment is available or is of a type or nature that is generally available and the nature of the pre-injury employment or her place of residence.”[29]
[29] Reasons, [101].
The Arbitrator found “the [respondent] has had no current work capacity, as that phrase is defined in s 32A of the 1987 Act, since 20 February 2020.”[30]
[30] Reasons, [105].

ON THE PAPERS

The parties submit the appeal can be decided on the basis of the written Appeal Application and the written Notice of Opposition.
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and 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 this is an appropriate matter to proceed “on the papers” without holding any conference or formal hearing.

THE NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

I exercise the jurisdiction provided in subsection 352(5) of the 1998 Act which provides:
“(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 any such error. The appeal is not a review or new hearing.”

TRANSFER OF THE MATTER FROM THE WORKERS COMPENSATION COMMISSION TO THE PERSONAL INJURY COMMISSION

The 2020 Act relevantly commenced on 1 March 2021 (the ‘establishment day’). The Arbitrator’s decision was issued on 17 February 2021. This appeal was lodged on 12 March 2021. The appellant’s right to appeal as at 1 March 2021 fell within the definition of an ‘unexercised right’ in cl 14A of Sch 1 to the 2020 Act. Clause 14D of Sch 1 to the 2020 Act permits the exercise of the right of appeal before me as a Presidential member of the Personal Injury Commission, a ‘new decision maker’. The first instance decision maker’s title at the time of his decision was that of an ‘arbitrator’ and I will refer to him by that title.

THRESHOLD MATTERS

The parties submit that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. I accept these submissions.

GROUND OF APPEAL

There is a single ground of appeal, namely:
“The Arbitrator erred by failing to provide adequate reasons with respect to the conclusion reached regarding s 32A.”

SUBMISSIONS

Appellant’s submissions

The appellant lodged principal submissions on 12 March 2021 (amended 17 March 2021) and a further submission on 30March 2021. The latter supplements the principal submissions having regard to the transcript of evidence, which became available after the principal submissions had been prepared.
The appellant identifies paragraphs [66] and [101] of the reasons as the Arbitrator’s findings that the worker did not have capacity to work. The appellant’s submission is:
“the findings referred to above fail to give proper regard to the evidence and submissions made by counsel for the Respondent at the Arbitration hearing regarding the effect of section 32A.”[31]
[31] Appellant’s submissions, [11].
The appellant submits:[32]
[32] Citing Mifsud v Campbell (1991) 21 NSWLR 725; Popal v Myer Holdings Pty Ltd [2020] NSWWCCPD 32.
“The extent and scope of an Arbitrator’s duty to give reasons depends upon the circumstances of the individual case. The obligation to give reasons is related to and dependent upon the submissions presented to the Arbitrator:
‘As a general proposition it is desirable that arbitrators, in dealing with such issues, deal specifically (to the extent to which they are relevant) with the issues identified in Dewar at [62] of that decision’ being: ‘the determination of what is suitable employment is a practical exercise that is conducted having regard to:
(a)    the nature of the incapacity and the details provided in medical information;
(b)    the worker’s age, education, skills and work experience;
(c)    any return to work plan, and
(d)    any occupational rehabilitation services that have been provided to the worker.
However, without regard to:
(a)     whether the work or employment is available, that is, obtainable;
(b)     whether the work or the employment is of a type or nature that is generally available in the employment market;
(c)     the nature of the worker’s pre-injury employment, and
(d)     the worker’s place of employment.’”[33]
[33] Appellant’s submissions, [12].
The appellant submits:
(a)    The evidence demonstrated that the worker did not have a physical disability or language difficulty, that she had previous work experience and qualifications demonstrating transferrable skills and qualification which could be applied in the open labour market. It notes that the worker’s experience traverses many industries, including event management, hospitality, banking and estate firms.
(b)    The Arbitrator failed to give adequate consideration to the occupations that the worker could perform and have proper regard to those matters to be considered under the definition of “suitable employment”.
(c)    The Arbitrator sits as a specialist within the constructs of the workers compensation law and should have given full effect to the ability of the worker within the workers compensation legislative framework.
(d)    It is not apparent from the Arbitrator’s reasoning whether he considered the wide variety of work available to the worker. Arriving at the conclusion that the worker had no current work capacity, particularly having regard to the worker’s experience and qualifications, it is submitted that the Arbitrator fell into error.
The error identified at this point is that the Arbitrator “sought to determine whether the respondent worker’s labour was saleable on the market, before considering whether there were suitable job options.”[34]
[34] Appellant’s submissions, [21], citing Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar).
It is said that the reasons expressed particularly at paragraph [101], do not permit a full and proper understanding of the statutory tasks mandated under s 32A.
Under the heading “Medical Evidence” the appellant submits that the Arbitrator’s finding regarding current work capacity by reference to the medical evidence, and opinions of Drs Sowden and Aung, was erroneous because it is unclear what the Arbitrator meant by the medical evidence and opinions from the treatment providers supporting the worker’s case, and how the medical evidence:
(a) discharged the requirement of considering if the worker has a current work capacity, and
(b) detailed if there were real jobs that the worker felt were within her capacity and medical restrictions.
The submission is:
“It is therefore not evident from the Arbitrator’s reasons, whether or not he considered if the worker has a capacity able to be realised for reward.”[35]
[35] Appellant’s submissions, [25], citing Dewar.
The appellant asserts that the balance of the medical evidence establishes that the worker has work restrictions but was not totally precluded from any form of work on the labour market.
The appellant refers to the reasons at [101] and submits:
“The Arbitrator does not explain what aspects of the evidence informed the conclusion that it was ‘far more likely than not’ that the worker does not have a Current Work Capacity or the context in which this standard of probability was being applied.”[36]
[36] Appellant’s submissions, [28].
The appellant’s final submissions are:
“It is submitted that the Arbitrator’s approach to his reasons can be characterised as making certain unexplained assumptions about the respondent worker’s ability to earn/work, is erroneous as it did not fully explain the essential grounding on which the conclusions were reached.
It is submitted the Arbitrator’s obligation to give reasons imposed by section 294(2) of the 1998 Act required the Arbitrator to explain the actual reasoning process which in fact led him to arrive at his opinion.
Further, the reasons must be sufficient to enable a party to exercise their rights to appeal or otherwise contest the decision.”[37]
[37] Appellant’s submissions, [29]–[31].
I note before leaving the appellant’s principal submissions that there is no ground of appeal corresponding to the following asserted error:
“In arriving at the conclusion that the worker had no current work capacity, particularly having regard to the worker’s experience and qualifications, it is submitted that the Arbitrator fell into error.
The Arbitrator sought to determine whether the respondent worker’s labour was saleable on the market, before considering whether there were suitable job options.”[38]
[38] Appellant’s submissions, [20]–[21].

Appellant’s further submissions

The further submissions identify by reference to the transcript submissions by counsel for the appellant to the Arbitrator. I have read the transcript of evidence and note the portions extracted in the further submissions.
At [3]–[4] in the further submissions, the appellant submits:
“3. The Arbitrator failed to give adequate consideration to the occupations that the worker could perform and have proper regard to those matters to be considered under the definition of ‘suitable employment’, including the submissions advanced during the arbitration hearing, detailed above.
4. The Arbitrator’s reasoning, particularly at paragraph [101], does not permit a full and proper understanding of the statutory task mandated under s 32A.”
The submission at [3] must be read as confined to a submission in support of the ground of appeal which is that the Arbitrator failed to provide adequate reasons with respect to the conclusion reached regarding s 32A.
The appellant asserts the Arbitrator failed to explain his actual reasoning process, which led him to his opinion, and failed to give proper and fulsome reasons. The appellant submits that the Arbitrator “furthermore failed to determine the claim for weekly compensation in accordance with the proper application of the legislation, and as such there was a failure to properly determine all issues in dispute.” That submission, in my view, must be read as support for the ground of appeal which relates to the adequacy of the reasons.

A note with the appellant’s submissions

The appeal is limited to the adequacy of the reasons given with respect to s 32A.
In this circumstance I read all of the submissions as directed to the single ground of appeal notwithstanding that some of the submissions could be read as directed to other potential grounds of appeal.

Respondent’s submissions

The respondent provides brief and conclusory submissions asserting the correctness of the Arbitrator’s findings as being based on the evidence. These submissions do not really provide any submission addressing the adequacy of the reasons. In a sense the respondent’s submissions address the matters referred to above, which I have indicated must be read as submissions in support of the ground of appeal, rather than submissions addressing the alleged error relating to the adequacy of the reasons. In answer to those submissions, the respondent’s submissions are that the Arbitrator was correct on the evidence to find as he did.
The respondent’s terse submission is that the appeal should be dismissed.

CONSIDERATION

Legislation

Section 294 of the 1998 Act provides:
“294 Certificate of Commission’s determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
The Workers Compensation Commission Rules 2011 provided (these were the applicable rules – the current provisions are r 78(2) and (3) of the Personal Injury Commission Rules 2021):
“15.6 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
It is important in my view to appreciate that it is the Statement of Reasons as a whole that has to satisfy rule 15.6.
Section 32A and Schedule 3 to the 1987 Act provide the relevant definitions.
The Arbitrator, though he has addressed the relevant text, has not distinguished between the definitions contained in s 32A “suitable employment” (a) and (b) which he plainly had regard to and the definitions of current and non-current work capacity contained in Schedule 3. No complaint is made by the appellant with respect to this issue and, in any event, as a matter of substance I am satisfied the Arbitrator fully grasped the requirement of the definition in s 32A of “suitable employment” and current work capacity in Schedule 3.
Schedule 3, clause 9, defines “current work capacity” and “no current work capacity”:
“9      Meaning of ‘current work capacity’ and ‘no current work capacity’
(1)     An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2)     An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Section 32A defines “suitable employment” as follows:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”

Authorities

It is the statute and the Rules that provide the authoritative requirements for an adequate Statement of Reasons to accompany the Certificate of Determination.
Nevertheless brief reference should be made to statement of principle as to what is required.
In Beale v Government Insurance Office (NSW),[39] Meagher JA said:
“With regards statutory administrative tribunals, it is, in Australia, undecided whether there is a general rule of law imposing a duty to provide reasons: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465 at 479. Despite the fact that the obligation on courts to provide reasons may have a different origin, the former being an incident of judicial duty and the latter being a legislative requirement, there is no reason in principle or as a matter of policy why the content of reasons for both types of decision should not be similar, if not the same: they essentially serve the same purpose.”
[39] (1997) 48 NSWLR 430, 441 (Beale).

His Honour explained the purpose of providing reasons as follows:
(a)    the absence of sufficient reasons often leads to a real sense of grievance that a party does not know or understand why the decision was made;
(b)    the requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision;
(c)    it enhances judicial accountability;
(d)    the provision of reasons has an educative effect, and
(e)    the provision of adequate reasons will save time for appeal courts both in reducing the number of appeals and reducing the time taken in considering any appeals.
Importantly, his Honour said:
“No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it …
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached …
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.”[40]
[40] Beale, 443.
In the Commission, in Sydney Catholic Schools v Bridgefoot,[41] the President Judge Phillips considered the adequacy of the reasons provided in an ex tempore decision concerning the necessity for surgery.
[41] [2021] NSWPICPD 17 (Bridgefoot).
The Arbitrator found that he was satisfied on the balance of probabilities that the incident on 6 December 2019 caused a pathological change in the right knee. The Arbitrator gave ex tempore reasons and determined that surgery was reasonably necessary.
On appeal the appellant complained:
(a) that the Arbitrator failed to properly engage with its submissions and the evidence and failed to give proper reasons, and
(b) the Arbitrator failed to properly consider the report of Dr McGee-Collett and failed to find that the worker suffered significant right knee symptoms before 6 December 2019.
On the issue of the adequacy of the reasons his Honour prefaced his remarks by reference to Wang v The State of New South Wales[42] as follows:
“It was submitted that the judge failed to respond to substantial, clearly articulated arguments relying on established facts on behalf of Mr Wang …
The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings.” (emphasis added by the President).[43]
[42] [2019] NSWCA 263.
[43] Bridgefoot, [82].
The President said:
“Whilst the Arbitrator’s result for all intents and purposes has dismissed the appellant’s argument that was conducted below, a close consideration of the Arbitrator’s reasons does not reveal how the argument that was submitted to him was rejected. Whilst I accept that in weighing the evidence, the Arbitrator was correct to have regard to the approach set out by Kirby P in Kooragang, that is an entirely separate question from dealing with the arguments that were put on behalf of the appellant. I think it is clear that on a fair reading of the decision it is not possible to discern why these submissions were rejected. Clearly the appellant submitted … the medical evidence, which in their submission meant that Ms Bridgefoot could not establish an entitlement. At the very least, this required the Arbitrator to attempt to resolve or grapple with that issue in terms of the doctors’ opinions. It is not possible to discern exactly how the medical evidence was construed to reach the result which I have set out above.”[44]
[44] Bridgefoot, [83].
In the result the matter was remitted for further hearing.

Application of the principles and rules to the present matter

The Arbitrator was not required to deal with the matters in (a)(iii), (iv) or (v) of the definition of “suitable employment” within s 32A. No complaint is made in this regard. The focus of attention was necessarily on (a)(i) and (ii) and the matters in (b)(i) to (iv).
The Statement of Reasons is 108 paragraphs long. It is in my view a well constructed Statement of Reasons that proceeds logically addressing the evidence, the parties’ submissions and expressing the Arbitrator’s findings.
The focus of the appeal is on two particular paragraphs. The appellant’s submissions do not address or recognise the extent to which the conclusions of the Arbitrator in particular paragraphs are supported by the analysis contained in other parts of the overall Statement of Reasons. In my view, the reasons should be considered as a whole and when this is done the expression of reasons is much more fulsome and comprehensive.
Paragraph [66] of the reasons was the Arbitrator’s summary of the appellant’s submissions on Ms Williamson’s statement. Paragraph [66] of the reasons does not contain a finding by the Arbitrator.
The Arbitrator’s finding with respect to Ms Williamson’s work history is at [94]–[95] as follows:
“94. The [respondent] has an impressive work history. There has been no evidence or submission to the contrary. There is also no evidence of the [respondent] having experienced this type of trouble in any of her earlier employments. I am actually persuaded that she has done her best to genuinely recount the history as she remembers it. However, I note Dr Sowden’s comment that the presentation of the [respondent] was complex and that she felt the [respondent] had ‘fragmented thought processes with it being difficult to gain a coherent account’. In my opinion any such fragmentation is as a result of the bullying and harassment and lack of support she was unfortunately exposed to in her employment with the [appellant]. Dr Sowden went on to describe her as a very brave young woman who understandably suffered a degree of psychological decompensation in response to exposure to severe psychological stressors in the workplace. This raises Chemler considerations.
95. In Attorney General’s Department v K [2010] NSWWCCPD 76, Roche DP, in considering the issue of establishing psychological injury in circumstances of a worker’s perception of real events at work, provided the following summary of relevant authorities on this issue:” [The Arbitrator then quoted Roche DP’s conclusions drawn at [52(a)–(f)] from the authorities the Deputy President earlier discussed in his decision].
The Arbitrator expressly recognised the submissions of counsel for the appellant directed to the current work capacity issue as follows:
“98. Mr Barnes has pointed out the [respondent’s] relatively extensive work history and education. But even after taking that into account, I find the [respondent] has not had any [current work capacity] from the time she left work on 20 February 2020 to date and continuing. This is the clear evidence of Dr [Takyar]. It is also the clear evidence of Dr Aung. The only question mark Dr Aung expressed in this respect was as to when the [respondent] might become fit in the future.”
The statement in paragraph [98] does not stand alone and paragraph [98]:
(a)    refers to the appellant’s submission concerning Ms Williamson’s work experience, education and history explaining why the Arbitrator does not accept the submission, namely because the accepted medical evidence is to the effect that she has no [current work capacity];
(b)    is followed by [99]–[100] containing additional reasons bearing on this topic, and
(c)    directs attention to the opinions of Drs Takyar and Aung.
Dr Takyar’s opinion of 1 July 2020 to which the Arbitrator directs attention contains the following:
“She described continuing moderate to severe grade anxiety symptoms and roughly moderate grade depressive symptoms which currently preclude her from being able to work in any capacity for which she has skills, training or experience. She has not had sufficient treatment as of yet - she would benefit from referral to a clinical psychologist for around 20 sessions of structured cognitive behavioural therapy, as well as referral to a treating psychiatrist with a view to commencing and supervising antidepressant therapy. Medication will take at least two or three months to begin to take effect.”[45]
[45] Application to Resolve a Dispute, p 43.
Dr Aung’s certificates of incapacity were before the Arbitrator and were specifically referred to by him in a number of paragraphs.[46]
[46] Reasons, [34]–[35].
The Arbitrator noted at [34] of the reasons that Dr Aung and Dr Htwe had certified Ms Williamson as having no current work capacity up to 13 July 2020. The Arbitrator further noted:
“Dr Htwe also examined the [respondent] on 5 October 2020 and provided a written response to specific questions from the [appellant] and wrote the [respondent] ‘… is not able to safely perform the inherent requirements of the position as duty manager … believes she will be able to return to work gradually and resume the inherent requirements of this position in six months time’.”
The Arbitrator repeats the opinion of Dr Htwe and analyses in detail the conclusions from that opinion at [99] of the reasons. He notes that Dr Htwe “is said to have expressed a view to the employer on 5 October 2020 that the [respondent] would be able to return to work gradually and resume the inherent requirements of the duty manager position in 6 months’ time” but says that he prefers the opinion of Dr Takyar “as the specialised psychiatrist in relation to this question”. He supports that conclusion with the evidence of the respondent in the statement of 30 October 2020 when she said she remained unable to work due to her condition.
At paragraphs [36] and [100] of the reasons, the Arbitrator refers to the opinions of Dr Sowden, the Medical Certificates of Drs Aung and Htwe and the opinion of Dr Takyar as the reason for rejecting the opinion of Dr Miller that Ms Williamson had immediate and full capacity to return not only to the pre-injury employment but also to the work outside that employment in any role of her choosing for which she was qualified.
All of the medical evidence accepted by the Arbitrator was to the effect that Ms Williamson had a present inability arising from the injury such that she was not able to return to work in either her pre-injury employment or in suitable employment.
The reasons at [101] recognise the submission made by the appellant’s counsel that Ms Williamson had an extensive work history and education. The Arbitrator had previously observed that the respondent had an impressive work history.[47] The Arbitrator reached the conclusion that notwithstanding the wide experience, the medical evidence, together with acceptance of Ms Williamson’s lay evidence, overwhelmed in terms of the current work capacity/no current work capacity debate factors such as the respondent’s age, education, skills and work experience.
[47] Reasons, [94].
The only matters relevant to “suitable employment” with which the Arbitrator was concerned were those relevant to a determination of the issues presented by (a)(i) and (ii) and (b)(i) to (iv) of the definition of suitable employment.
Paragraph [101] in combination with the other paragraphs of the reasons generally, in particularly with respect to the medical evidence, provide an adequate explanation for the finding that notwithstanding the respondent’s age, education, skills and work experience, the medical information on the probabilities made it likely that Ms Williamson had no current work capacity. In my view, more fulsome reasons were not required.
The reasons were adequate to explicate the reasoning process so as to provide the appellant employer with an understanding of why it did not succeed and sufficient to provide for appellate review. The Statement of Reasons satisfies s 294(2) of the 1998 Act and rule 15.6. The single ground of appeal is not made out, and accordingly, the appeal fails.

DECISION

The Arbitrator’s Certificate of Determination dated 17 February 2021 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

9 November 2021