Zurich Financial Services Australia Ltd v Dickson - [2016] NSWWCCPD 25

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Zurich Financial Services Australia Ltd v Dickson [2016] NSWWCCPD 25
APPELLANT:	Zurich Financial Services Australia Ltd
RESPONDENT:	Adam Dickson
INSURER:	CGU Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-2164/15
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	15 January 2016
DATE OF APPEAL DECISION:	6 May 2016
SUBJECT MATTER OF DECISION:	Assessment of worker’s ability to earn in suitable employment; ss 40 and 43A of the Workers Compensation Act 1987, as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012; Directions for production of documents; Pt 13 r 13.4 of the Workers Compensation Commission Rules 2011
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons
Respondent:	Brazel Moore Lawyers
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s determination of 15 January 2016 is confirmed.

INTRODUCTION

This appeal concerns the assessment of weekly compensation for a partially incapacitated worker under ss 40 and 43A of the Workers Compensation Act 1987 (the 1987 Act), as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012.
The appeal also concerns an Arbitrator’s exercise of discretion pursuant to s 357 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and Pt 13 r 13.4 of the Workers Compensation Commission Rules 2011 (2011 Rules), to decline to order a Direction for Production on the basis that there was no “forensic purpose”.

BACKGROUND

The respondent worker, Mr Dickson, was employed by the appellant, Zurich Financial Services Ltd (Zurich), as an insurance underwriter, when he sustained a psychological injury in 2005, due to “increased workload, conflict with supervisor and harassment from Colleagues”.
Mr Dickson’s employment with Zurich was terminated sometime in 2005, following which he was employed by several different employers working in varied roles for varying hours. There were also periods where Mr Dickson was unemployed. Relevant information regarding Mr Dickson’s post-injury employment is detailed below.
Although the evidence is unclear, it appears that sometime in 2005, Mr Dickson made a claim against Zurich for compensation in respect of the psychological injury. In a letter dated 20 May 2015, Zurich’s insurer, CGU Workers Compensation (NSW) Ltd (CGU), denied the claim on the basis that “employment is no longer a substantial contributing factor as defined under Section 9a [sic] of the Workers Compensation Act 1987”. CGU relied upon the report of Dr McClure, consultant psychiatrist, dated 10 May 2005.
On 27 September 2012, Mr Dickson’s legal representatives made a claim for lump sum compensation for permanent impairment and for pain and suffering, on his behalf, for the psychological injury allegedly sustained during the course of his employment with Zurich. Mr Dickson relied on the report of Dr Ben Teoh, consultant psychiatrist, dated 16 April 2012, who assessed him to have 17 per cent whole person impairment in respect of the psychological injury and found his condition to be permanent.
On 4 June 2013, CGU issued a s 74 Notice pursuant to the 1998 Act declining liability on the basis that Mr Dickson did not suffer any impairment as a result of any psychological injury or an aggravation of his condition during his employment with Zurich. CGU further alleged that Mr Dickson had fully recovered from any psychological injury or aggravation of a pre-existing psychological condition or disease by early 2007.
In the alternative, CGU claimed that any injury resulted from a pre-existing non-work psychological condition. It added, in the event that Mr Dickson was found to be suffering from any “ongoing partial psychological incapacity for work”, then pursuant to s 16(1)(b) of the 1987 Act, Zurich was not the last employer to employ Mr Dickson in employment that was a substantial contributing factor to the aggravation of the “mental disease”.
On 22 October 2013, following a request for review of its previous decisions, CGU issued a further s 74 Notice maintaining its decision to dispute liability for the reasons set out in the letter of 4 June 2013.
On 16 September 2014, Mr Dickson completed a Worker’s Injury Claim Form claiming that he sustained a psychological injury in March 2008 while working at David Jones Ltd (David Jones) due to harassment by a team leader.
On 26 September 2014, David Jones’s insurer, GIO Ltd (GIO), wrote to Mr Dickson advising that it had concluded that “it has reasonable grounds not to commence or approve payment of” weekly payments of compensation and reasonably necessary medical, hospital and associated expenses in relation to the injury.
On 20 April 2015, Mr Dickson’s legal representatives filed in the Commission an Application to Resolve a Dispute (the Application) against Zurich and a separate Application to Resolve a Dispute (the second Application) against David Jones Ltd. In both applications Mr Dickson claimed weekly benefits, medical expenses (subsequently discontinued) and lump sum compensation for a “psychological injury – major depression”. In the application against Zurich, as indicated above, Mr Dickson, alleged that the psychological injury was caused by an increased workload, conflict with a supervisor and harassment from colleagues. However, in the second Application, against David Jones, Mr Dickson claimed that the psychological injury was “caused by harassment by supervisor”.
On 22 May 2015, the matter came before Senior Arbitrator Douglas for telephone conference. During the course of the telephone conference, at the request of Mr Dickson and with the consent of Zurich, the claim against David Jones was discontinued. Also during that telephone conference, the Senior Arbitrator considered an application by Zurich that a Direction for Production be served on Mr Dickson’s post-injury employers for the purposes of producing records relating to any workers compensation claims or sick leave records. The Senior Arbitrator determined that there was no “forensic purpose at all in serving a direction for production on any employer” (T21.10).
The matter then proceeded to a conciliation/arbitration hearing on 16 November 2015 and 21 December 2015. No oral evidence was called at the arbitration. Following the submissions the Senior Arbitrator reserved his decision.
On 15 January 2016, the Senior Arbitrator issued a decision in favour of Mr Dickson. On the same day the Commission issued a Certificate of Determination in the following terms:
“The Commission determines:

1. That the proceedings insofar as they relate to the claim the applicant has made for compensation under s60 of the Workers Compensation Act 1987 are discontinued.

2. That there be an award in favour of the first respondent with respect to the applicant’s claim for compensation under s66 of the Workers Compensation Act 1987.

3. That there be an award for the first respondent with respect to the applicant's claim for weekly payments of compensation for the periods 20 May 2005 to 18 April 2007 and 4 August 2008 to 7 November 2008.

4. That the respondent pay weekly compensation to the applicant as follows:
a.at the rate prescribed under section 37(1) for a worker with no dependents for the periods 19 April 2007 to 3 August 2008 and 8 November to 17 November 2008;
b.at the rate of $166.53 for the period 18 November 2008 to 30 June 2009 inclusive;
c.at the rate of $197.19 a week for the period 1 July 2009 to 25 May 2010;
d.at the rate of $376.15 a week for the period 26 May 2010 to 27 May 2010;
e.at the rate prescribed under section 37(1) for a worker with one dependent child for the period 28 May 2010 to 9 March 2011 inclusive;
f.at the rate of $434.96 a week for the period 10 March 2011 to 24 March 2011 inclusive;
g.at the rate prescribed under section 37(1) for a worker with one dependent child for the period 25 March 2011 to 5 January 2012 inclusive;
h.at the rate prescribed under section 37(1) for a worker with two dependent children for the period 6 January 2012 to 31 December 2012.

5. That the parties have liberty to apply for a period of 7 days following the date of this determination for a telephone conference in the event that one or other of them contends that there has been a arithmetical error made with respect to the rates set out in 4.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

Zurich appeals the Senior Arbitrator’s determination.

ON THE PAPERS

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

PRELIMINARY MATTERS

There is no issue that the threshold requirements of s 352(3) and (4) are satisfied.

POST-INJURY EMPLOYMENT HISTORY

Relevant evidence of Mr Dickson’s post-injury employment history is found in his statements, dated 9 August 2013 and 19 November 2015, together with the Fifth Amended Wages Schedule.
In 2005, Mr Dickson was employed by CGU Insurance as a commercial underwriter. He claims that his role was extremely high pressure. He also claims that he had trouble concentrating and focusing on work and that his physical symptoms were impairing his ability to undertake the role. His employment was terminated in October 2005.
During his employment at CGU Insurance, between 20 May 2005 and 30 June 2005, Mr Dickson earned $846.78 per week, between 1 July 2005 and 31 July 2005 he earned $855.24 per week, and between 1 August 2005 and 31 October 2005 he earned $1,2586.37 per week.
Mr Dickson was unemployed between 1 November 2005 and 31 December 2005.
In January 2006, Mr Dickson commenced employment with Lumley Insurance as a domestic underwriter. Mr Dickson experienced “anxiety and panic attacks” and after about two months had to leave that job. In his later statement, Mr Dickson states that his employment was terminated because his work performance did not meet the employer’s expectations. Between 1 January 2006 and 26 April 2006 Mr Dickson earned $943.25 per week.
In April 2006, Mr Dickson was employed by Asteron, which appears to be a subsidiary of Suncorp Life & Superannuation Ltd, working full time undertaking administrative work. He felt his symptoms flare up immediately and he only lasted about four days in the role. Between 27 April 2006 and 2 May 2006 Mr Dickson earned $849 per week.
Between 3 May 2006 and 31 August 2006 Mr Dickson was unemployed.
From about September 2006, Mr Dickson commenced working at Neverfail as a call centre worker. He claims that his condition “flared up” and he experienced “the same anxiety depressive symptoms on a daily basis”. After two months he resigned. Mr Dickson earned $513.50 per week between 1 September 2006 and 31 October 2006.
Mr Dickson was unemployed between 1 November 2006 and 31 March 2007.
In around March or April 2007, Mr Dickson commenced working for Tower Life in a customer service role taking calls for life insurance. After approximately two weeks he noticed his symptoms returning. These symptoms were precipitated by pressure such as deadlines. He later negotiated with his manager to work part-time doing data entry four hours per day, five days per week. He claims that his condition would “flare up in the morning” but he would use the afternoon to recover. Mr Dickson earned $516.35 per week between 1 April 2007 and 30 June 2007 and $389.20 per week between 1 July 2007 and 18 March 2008.
In March 2008, Mr Dickson commenced working as a storeman in the loading dock at David Jones. He claims that the store was “seriously understaffed and the workload was horrific”. He claims that his supervisor harassed him and he continued having “anxiety and panic attacks as before”. He resigned from his job because he was “being harassed by my colleagues”. Mr Dickson earned $436.30 per week between 19 March 2008 and 20 May 2008.
Between 21 May 2008 and 9 June 2008 Mr Dickson was unemployed.
In June 2008, Mr Dickson started a “temping job” at Tower Insurance doing filing. Tower Insurance only needed him for two weeks to a month and during that time he also got a job through a temping agency Staff Leasing doing call centre work for NRMA. He claims that he was only there for the training period because once he realised the volume of work that he was required to do he knew the job wasn’t for him and it would only flare up his symptoms. From 10 June 2008 to 30 June 2008 Mr Dickson earned $321.42 per week.
In July 2008, Mr Dickson again worked for Tower Insurance, this time in a full-time temporary data cleansing role updating client contact information. From 1 July 2008 to 3 August 2008, Mr Dickson earned $332.50 per week.
Between 4 August 2008 and 7 November 2008 Mr Dickson earned $910.53 per week working for Tower Risk & Investment Management Ltd. The evidence does not reveal the duties Mr Dickson undertook while employed by Tower Risk & Investment Management Ltd.
Mr Dickson was unemployed between 8 November 2008 and 17 November 2008.
In November 2008, Mr Dickson worked full-time for the Australian Apprenticeship Centre as an administrative assistant. He claims that his condition would build up during the day and by the end of the day he would be “a complete mess”. He was later placed in a filing type role which he found less stressful but his condition still remained severe every day. He continued having anxiety and feeling dizzy. He claims that he had significant anxiety depressive symptoms and experienced panic attacks. In around February 2010, he commenced working a four day week but nothing changed and his symptoms remained severe. In his first statement he states that he resigned when his wife returned to work following maternity leave, but in his second statement he states that he resigned to get a less stressful job stacking shelves in a supermarket.
Mr Dickson earned $705.90 per week working for the Australian Apprenticeship Centre between 18 November 2008 and 30 June 2009. From 1 July 2009 to 25 May 2010 he earned $683.95 per week.
Between May 2010 and July 2011 Mr Dickson had several part-time positions but his symptoms did not improve.
In May 2010, he got a casual job at Bi-Lo stacking shelves. After a few days’ of work his condition started flaring up, which he attributed to the repetitive nature of the job, and he quit. From 26 May 2010 to 30 May 2010 Mr Dickson earned $238 per week.
In August 2010, Mr Dickson commenced employment at JB Hi-Fi as a salesperson in the iphone and camera section. He resigned as he thought that there “was no way [he] would be able to learn what [he] needed to because of [his] condition and inability to concentrate so [he] resigned after half a day’s work”. From 31 May 2010 to 30 June 2010 Mr Dickson earned $78 per week.
From 1 July 2010 to 2 November 2010 Mr Dickson was unemployed.
In November 2010, Mr Dickson commenced a temporary role at McGrath Real Estate as a data entry clerk. He only worked one day and never went back. He claimed that the repetitiveness and never-ending nature of the work flared up his condition. Mr Dickson earned $318.
From 5 November 2010 to 9 March 2011 Mr Dickson was unemployed.
In around March 2011, Mr Dickson commenced part-time work with Australia Post as a “walking postie”. He claims that there was a lot of pressure to deliver a bundle of letters in a set period of time and there was no time for breaks. The area in which he worked was very hilly and his left knee swelled up after three or four days’ of walking. He was on crutches for around six months and resigned two weeks later. From 10 March 2011 to 24 March 2011 Mr Dickson earned $455 per week.
From 25 March 2011 to 31 March 2011 Mr Dickson was unemployed.
In around April 2011, Mr Dickson commenced working four days per week at CFS Financial as a domestic underwriter. He claims that his symptoms flared up and after two weeks he had to take leave as he was physically unwell due to stress. He resigned shortly after. From 1 April 2011 to 20 April 2011 Mr Dickson earned $300 per week.
From 21 April 2011 to 30 June 2011 Mr Dickson was unemployed.
In July 2011, Mr Dickson commenced working full-time for Rebel Sports. He only worked one day. He went home and his body was shaking and sweating. He claims that there was a lot of pressure to sell and he had difficulty dealing with customers all day. He then worked reduced hours, initially every second Saturday for four hours and then one or two four hour shifts per week at a different store location. He claims that he would go home feeling “really bad”. He resigned in June 2013 because the stress and pressure was taking its toll on him.
In around August 2011, Mr Dickson commenced work at Central Coast Motor Group in a customer service role telephoning customers and offering them package deals. He also undertook some administrative and data entry tasks. There was a very large workload with a lot of pressure and he found it difficult to get everything done. He resigned after the first week.
In around September 2011, he obtained employment with ING as a call centre officer. Once he saw the volume of calls staff were required to receive he thought the job would “severely flare up [his] symptoms”.
From 1 July 2011 to 31 December 2012 Mr Dickson earned $87.30 per week. During this time Mr Dickson worked part-time at Rebel Sports, Central Coast Motor Group and ING.

THE EVIDENCE

Mr Dickson’s evidence

In addition to the history referred to above, regarding Mr Dickson’s post-injury employment, the following evidence is relevant. Mr Dickson states that he “did not have any anxiety relating symptoms prior to working for Zurich”, that being prior to 2003.
Mr Dickson describes the symptoms that he experienced during the course of his employment with Zurich to include: anxiety attacks, panic attacks, sleeping difficulties, dizziness, tremor, and brief blackouts.
Mr Dickson also describes the symptoms that he experienced following his employment with Zurich to include: anxiety attacks, panic attacks, depression, stress, blackouts, dizziness, and agitation. He further describes his symptoms to have “flared up” and his condition to have “remained severe” during his employment with post-injury employers.

Medical evidence

Dr Wai Shing

The clinical notes of Dr Wai Shing, Mr Dickson’s general practitioner, are in evidence. As the Senior Arbitrator noted, a large part of the records are hand written and difficult to read. In so far as the hand written records relate to Mr Dickson’s psychological symptoms and treatment, they have been incorporated into the form of the fifth amended wages schedule. Dr Wai Shing’s evidence gives some insight into the symptoms experienced by Mr Dickson during periods of post injury employment, for example whilst employed by CGU he reported to be suffering from abdominal pain and gastric symptoms. Whilst employed by Lumley Underwriting Dr Wai Shing noted “complaints of dizzy, … shaky, tired” and “been on three jobs over the past 6/12-ie. not being able to hold it-poor conc, difficulty coping with new task…”.

During Mr Dickson’s employment with Tower Life, Dr Wai Shing noted on 19 June 2008:
“Back at Tower Insurance – temporary work four hours/day. Data entry filing in clients contact only admin type work – struggling to cope… does not like work – negative thoughts – weepy at times but not suicidal…”
In respect of a consultation with Mr Dickson on 13 April 2010, Dr Wai Shing noted:
“Complained of 1-2 months – in front of computer/admin work +++ dizzy trembling – worst at end of day – trying to carry out coping strategies – poor sleep pattern – waking at 0400 hrs…tense at home…symptoms worst past 3-4 weeks – current situation/ job irs feels now admin & working in front of computer not for him – counselling support/need to contact Jenny Ford to arrange more hypnotherapy which he found relaxing.”
Dr Wai Shing noted, in respect of Mr Dickson’s employment at JB Hi-Fi, on 24 June 2010 “panic attacks sleep disturbance, impaired concentration, somatic symptoms related to daily stressful events especially work stress…”.
Dr Wai Shing reported similar symptoms following Mr Dickson’s employment with McGrath Real Estate, noting among other things symptoms of tension and dizziness.
Following Mr Dickson’s employment at Rebel Sport, Dr Wai Shing noted on 3 November 2011 continuing problems with anxiety and depression, inability to cope, stress and changes within his immediate family and working environment.

Dr Ben Teoh

Dr Teoh examined Mr Dickson at the request of his solicitors. In a report, dated 16 April 2012, Dr Teoh recorded that Mr Dickson was unable to work full time. He recorded a history of the following complaints: headaches, dizziness, depressed mood, “a burning sensation”, and lethargy. He also recorded that Mr Dickson had been depressed and preoccupied with negative thoughts. He further recorded symptoms of anxiety and poor concentration.
Dr Teoh found Mr Dickson’s condition to be “caused by work related stress over the years, since 2003”. He concluded at that time that Mr Dickson was not fit to return to full-time work or his pre-injury duties. He found Mr Dickson to have achieved maximum medical recovery and that his condition had stabilised. He assessed Mr Dickson’s permanent impairment at 17 per cent whole person impairment in respect of major depression.
In a supplementary report, dated 15 August 2013, Dr Teoh recorded that Mr Dickson’s major depression was caused by his employment with Zurich. He noted that Mr Dickson had subsequent problems with other employment but that employment was not a substantial contributing factor to his condition but was a consequence of his initial problems with his major depression.
Dr Teoh added, “[i]n view of his deterioration of his condition” Mr Dickson was not fit to work at that point in time. He recommended that Mr Dickson be reviewed by a psychiatrist for his treatment, as his condition seemed to have deteriorated. He suggested that Mr Dickson may require more intensive pharmacological treatment and counselling.

Dr AP McClure

Dr McClure, consultant psychiatrist, qualified by CGU, examined Mr Dickson on 10 May 2005 and provided a report on the same day.
In his report, Dr McClure obtained a detailed history of Mr Dickson’s current symptoms. Based on Mr Dickson’s presentation and relevant history, Dr McClure concluded that Mr Dickson’s symptoms were not related to his employment with Zurich, rather they represented a “possibyle [sic] work related ‘aggravation of a pre-existing condition’ namely Mr Dickson’s pre-morbid (inherited) susceptibility to panic attacks”. Based on Mr Dickson’s reported medical history, Dr McClure noted that the aggravation may have commenced between July and October 2003, and should have had a duration of no more than six months. He found that Mr Dickson’s ongoing symptoms represented the progression of his underlying constitutional condition. He considered the “recent relapse” to be the result of premature discontinuation of medication.
Dr McClure concluded that at that time Mr Dickson was fully fit to continue working in an underwriting capacity for Zurich.
Dr McClure prepared a further report, dated 13 February 2013, addressed to Zurich’s solicitors. Again Dr McClure obtained a detailed history of Mr Dickson’s post-injury employment and his symptomatology. He records that Mr Dickson denies any past psychiatric history prior to the onset of anxiety-related symptoms in 2003.
In particular, Dr McClure records that overall, in recent years, Mr Dickson’s symptoms have improved. He found that Mr Dickson experienced a form of existential anxiety, which varied according to the level of pressure and scrutiny under which he feels and then persists for several hours after that stressor has been removed.
Dr McClure considered that Mr Dickson had not suffered a major depressive episode. His symptoms were consistent with a diagnosis of mild generalised anxiety disorder. He found that Mr Dickson no longer experienced discrete panic attacks, and had therefore recovered from the psychological injury suffered in 2004-2005. He found that he had probably recovered by at least the first half of 2007 when working part time at Tower Life.
Dr McClure did not consider Mr Dickson to be totally incapacitated for work. He concluded that Mr Dickson would be capable of working 15–20 hours per week initially as a retail assistant in a hardware store, video store or music store, hire car company desk clerk, console operator, licensed club employee, aged care worker, home carer for patients with a disability, telemarketer, store person or salesperson generally, or ten hours per week initially as an insurance underwriter, claims officer, clerk or purchasing officer. Dr McClure considered that over time Mr Dickson should be capable of upgrading to 25–30 hours per week in one of the former listed occupations or 20–25 hours per week in one of the latter occupations which he noted were somewhat more cognitively demanding.
Dr McClure stated that he doubted Mr Dickson would ever be capable of returning to work in an environment such as the Zurich office where his symptoms began.
Dr McClure provided a further report dated 19 June 2013, addressed to Zurich’s solicitors. This report was directed to the question of whether any of Mr Dickson’s post-injury employment contributed to his condition. Dr McClure recorded that Mr Dickson’s symptoms persisted following his employment with Zurich, though this was at a “milder level as he was being treated and taking medication”. He again stated that Mr Dickson probably recovered from the psychological injury suffered during 2004–2005 at least by the first half of 2007.

Professor Glozier

On 19 August 2015, Professor Glozier, Approved Medical Specialist, examined Mr Dickson on referral from a delegate of the Registrar.
Professor Glozier has taken a very detailed history including his own observations of Mr Dickson and an analysis of the assessments that have been made by treating practitioners including his general practitioner Dr Wai Shing, Dr Butler, Mr Dickson’s treating psychiatrist, Renee Napier, Sharon Gold, David Lake and Jennifer Ford, his treating psychologists. Professor Glozier also considered the assessments and conclusions reached by Drs McClure and Teoh.
Professor Glozier agreed with Dr McClure’s diagnosis of a generalised anxiety disorder.
He recorded Mr Dickson’s current symptoms noting:
“Mr Dickson is generally anxious, somewhat aroused and focussed upon his somatic features, which occur each day with a varying degree of associated impairment. He has a slow build of features of dizziness, a thumping head, internal tremor, head pounding, body aching and gastrointestinal symptoms of irritable bowel syndrome that build up over the day, diminishing in the evening and overnight.”
Professor Glozier noted that Mr Dickson was particularly anxious in social situations. He avoided using public toilets, eating in public, writing in public and a number of other social situations. He noted that Mr Dickson felt that he was being watched and judged by other people.
In terms of employability, Professor Glozier stated:
“[Mr Dickson] has shown that really he is only employable for a few hours a week in an open role, although undertakes many tasks at home in a more secure and less pressured environment. This would accord with a severe impairment rather than the moderate impairment that he had at the time when he was working part-time.”
Professor Glozier came to the conclusion that Mr Dickson’s employability was in fact worse than that reported by Dr Teoh. He considered that Mr Dickson suffered from a severe impairment rather than the moderate impairment he had at the time when he was working part time.

THE SENIOR ARBITRATOR’S DETERMINATION

Much of the Senior Arbitrator’s determination is directed to issues of injury and causation which are not challenged on this appeal and are therefore not relevant for current purposes.
The finding which is challenged is the Senior Arbitrator’s finding (at [102]) that Mr Dickson is only suited to work for around 10 hours per week in jobs involving minimal stress such as storeman or in a carer or attendant role in the nursing industry or as a console operator.
The Senior Arbitrator made it clear that his assessment is based on the whole of the evidence. He noted in particular Dr Teoh’s view that Mr Dickson was not fit to return to full-time work or his pre-injury duties.
With respect to Dr McClure’s opinion, the Senior Arbitrator noted (at [97]) that the range of occupations assessed by Dr McClure as within Mr Dickson’s capability included employment within the insurance industry. The Senior Arbitrator concluded having regard to the nature of Mr Dickson’s symptoms and the fact that each time he returned to work within the insurance industry he had not been able to cope, that he would be unsuited to any type of work within the insurance industry.
The Senior Arbitrator noted (at [98]) Professor Glozier’s view that Mr Dickson was only employable for a few hours per week “in an open role”.
There is no dispute that the amount Mr Dickson would probably have earned uninjured is $846.78 per week.
The Senior Arbitrator considered Mr Dickson’s symptoms which included tension, dizziness, gastrointestinal problems, sleeping difficulties and difficulties with concentration. He also considered Mr Dickson’s post-injury employment history which he found to demonstrate that Mr Dickson was unable to endure any employment in which he was placed under pressure to meet the expectations of others or the expectations of customers.
Based on the whole of the evidence, including the medical opinions of Drs Teoh, McClure and Professor Glozier, the Senior Arbitrator concluded (at [101]) that Mr Dickson was not able to work at all in full-time employment or work in part-time employment where that employment involved pressure to meet the expectations of others and/or customers.
The Senior Arbitrator concluded that Mr Dickson was only suited to work 10 hours per week in jobs involving minimal stress such as those identified by the Senior Arbitrator at [102]. Namely, a storeman or in a care or attendant position within the nursing industry or a console operator.
Relying on the specialist knowledge of the Commission with respect to wage levels within these occupations (Perkins v Ceva Materials Handling Pty Ltd [2011] NSWWCCPD 32) the Senior Arbitrator found that Mr Dickson would have been able to earn $18 per hour working in the occupations identified by him, therefore he concluded that the average weekly amount Mr Dickson was able to earn in suitable employment amounted to $180 per week.
Mr Dickson’s claim for compensation spans the period from 1 July 2005 to 1 March 2015.
In respect of the period from 20 May 2005 to 30 June 2007, although Mr Dickson was likely to have been incapacitated for part of that period, the evidence before the Senior Arbitrator was so imprecise as to the periods of employment, non-employment and earnings during that period that he entered an award for the respondent. That finding is not challenged.
Between 19 April 2007 and 31 December 2012 Mr Dickson was for various periods in employment and has identified his earnings during those periods. Based on the agreed amount Mr Dickson would have been earning during those periods and his actual income, the Senior Arbitrator calculated the difference and entered appropriate awards. Those findings and orders are not challenged.
The challenge to the Senior Arbitrator’s award is limited to the following periods:
(a)     19 April 2007–3 August 2008;
(b)     8 November 2008–17 November 2008;
(c)     28 May 2010–9 March 2011;
(d)     25 March 2011–5 January 2012, and
(e)     6 January 2012–31 December 2012.
Mr Dickson made no claim for compensation beyond 31 December 2012.
The Senior Arbitrator rejected the submission that s 16 of the 1987 Act had any application in the circumstances of this case. He found (at [80]) that for s 16 to have any application the injury must consist in the aggravation of a disease condition, that is, the injury has occurred over the course of time and fits the description of an injury within the definition of injury under s 4(b)(ii) of the 1987 Act. The Senior Arbitrator held that s 16 had no application because there is no dispute that Mr Dickson suffered a psychological injury arising out of or in the course of his employment with Zurich. There was no dispute that Mr Dickson did not suffer psychological symptoms prior to commencing work with Zurich. Those findings have not been challenged.

GROUNDS OF APPEAL

Zurich alleges that the Senior Arbitrator erred in:
(a)     fact by finding that Mr Dickson was only able to earn $180 per week in some suitable employment;
(b)     fact by finding that Mr Dickson was only able to earn $180 per week in some suitable employment, as a result of the alleged injury;
(c)     law by finding that Mr Dickson was only able to earn $180 per week in some suitable employment as a result of the alleged injury, and
(d)     the exercise of his discretion in failing to allow Zurich to issue notices to produce documents.

SUBMISSIONS

Zurich’s submissions

Alleged error of fact in finding that Mr Dickson’s ability to earn in suitable employment was $180 (ground (a))

Mr Dickson demonstrated an ability to earn more than the amount determined by the Senior Arbitrator in occupations that the Senior Arbitrator erroneously found to be unsuitable, for periods of such length and in such circumstances that they cannot be said to be unrepresentative “spikes” in the worker’s ability to earn.
The Senior Arbitrator failed to give adequate weight to Mr Dickson’s demonstrated ability to earn in employment that would return him the same income as he would have earned but for the injury.
As the Senior Arbitrator noted (at [48]) Mr Dickson had been at work doing his normal hours and duties since 2 October 2004 by the time his general practitioner Dr Wai Shing certified him fit for pre-injury duties on 19 May 2005.
The Senior Arbitrator failed to give weight to the fact that Mr Dickson had demonstrated his capacity to earn at least to his pre-injury wages level for a period of two years after the s 74 notice was issued on 20 May 2005. This was reflected in the Senior Arbitrator’s award for the respondent (employer) for the period from 20 May 2005 to April 2007.
Further, the Senior Arbitrator failed to give adequate weight to the worker’s ability to earn demonstrated by:
(a)     his employment with Tower Risk & Investment Management Ltd for 14 weeks earning $882.57 per week;
(b)     his employment with the Australian Apprenticeship Centre for 32 weeks earning $705.90 per week, and
(c)     his employment with the Australian Apprenticeship Centre for 47 weeks earning $683.96 per week.
Zurich submits that the periods of employment referred to above indicate that the nature of that work was not beyond Mr Dickson’s capacity and the Senior Arbitrator should have determined an ability to earn of at least $680 per week.
The 2013 tax return was not produced.

Alleged error of fact in finding that Mr Dickson’s ability to earn in suitable employment was $180, as a result of the injury (ground (b))

Zurich submits that if Mr Dickson did not have an ability to earn of at least $680 per week after the 2010 financial year, there must have been a change in circumstances from those existing in the immediately preceding financial years. The Senior Arbitrator did not identify the changed circumstances.
If the relevant change in circumstances is that the effects of the injury suffered by Mr Dickson had changed in a deleterious fashion it would have been necessary to identify a reason for that change. The Senior Arbitrator’s failure to do so resulted in error.

Alleged error of law in finding that Mr Dickson’s ability to earn in suitable employment was $180, as a result of the injury (ground (c))

It is submitted that the Senior Arbitrator erred in law in failing to consider all of the factors necessary in order to determine the worker’s ability to earn. It was necessary to find not only that Mr Dickson remained symptomatic after sustaining the injuries complained of, but that the symptoms resulted in a loss of earnings.
Zurich submitted that the assessment is a practical exercise that involves the assessment of a capacity for work having regard to the realities of the labour market in which he is to be engaged (Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; 25 NSWCCR 206).
The Senior Arbitrator failed to give any or any adequate weight to the worker’s demonstrated ability to earn significantly more than the amount found by the Senior Arbitrator. He erred in averaging out the worker’s earnings (at [37] and [38]).
The appropriate amount to be considered in s 40(2)(d) is prima facie the worker’s actual earnings unless it is established that the worker’s actual earnings are not a proper test (Pira Pty Ltd v Tucker [1996] NSWSC 569; 14 NSWCCR 26 (Pira)).
Zurich submits that there is no evidence that Mr Dickson was only able to carry out the work he did in the period leading up to the 2010 financial year with the assistance of medical or other support that was not equally available to him thereafter.
Zurich submits that if Mr Dickson was not restricted by the effects of the injury as at the 2010 financial year such as to significantly reduce his ability to earn then there must have been a change in circumstances to render him restricted to the extent found by the Senior Arbitrator. Such a change in circumstances was not identified.
The only available change in circumstances was either a natural progression of the injury or that the injury was aggravated by subsequent employment.
Zurich submits that the Senior Arbitrator erred by preferring Professor Glozier’s evidence to that of Dr McClure, because Professor Glozier did not obtain a history of productive employment over a relatively lengthy period of time leading up to and including the 2010 financial year, and did not direct his mind to the cause of the poor employability rating in August 2015 by comparison. Dr McClure had the benefit of contemporaneous consultations.

The SeniorArbitrator’s refusal to permit Zurich to issue a notice to produce documents on post-injury employers (ground (d))

On 26 May 2015, the Senior Arbitrator refused an application by Zurich’s solicitor Ms Ireland to issues directions to post-injury employers seeking employment records and in particular records relating to any workers’ compensation claims or sick leave records in reference to Mr Dickson during such employment.
The application was refused as lacking forensic merit. Zurich submits that the forensic purpose was to establish whether or not an aggravation of Mr Dickson’s condition occurred in the course of such employment such that it may have demonstrated the reason for the change in circumstances referred to earlier in these submissions.
Zurich submits that the Senior Arbitrator’s refusal to permit the directions to be issued “affected the analysis of a significant factual issue in the determination of the matter”. Zurich relies on the following passages from the Senior Arbitrator’s Reasons (at [118]–[119]):
“Mr Dickson's evidence, in his statements is, in my view, at best imprecise regarding when and for how long within those periods he was employed. The earliest of his recounts relating to this period is provided in his statement of 9 August 2013, which is some six to eight years after the particular period. It is the case that memories fade over time. There will consequently be an inherent risk of a person's recount of events provided many years after the event being unreliable: See Heron v McGregor [1986] 6 NSWLR 246 per McHugh JA at 254E, cited with approval by Garling J in MPB v R [2013] NSWCCA 213 at [39] and by Campbell J in Shalhoub v Buchanan [2004] NSWSC 99 at [73] DC200401369 and see Smythe v Burgman (No 2) [2015] NSWSC 298. Indeed, that accords with common sense.
It seems to me that in a circumstance such as this, that is where Mr Dickson is recounting events approximately six to eight years after they occurred, absent some support from independent or objective evidence, such as payment summaries or tax returns, it would be unsafe for me to make any findings based upon Mr Dickson’s recollection…”

Mr Dickson submitted that the matter amounted to a fishing expedition and was unnecessary as the records of the treating psychologists and Dr Wai Shing did not reveal any medical certificates or suggestion of claims against post-injury employers.

DISCUSSION AND FINDINGS

Ability to earn

The disputed weekly compensation before the Senior Arbitrator spanned a period of more than four years. For much of that period, Mr Dickson was actually working for various post-injury employers. During those periods the Senior Arbitrator approached the assessment under s 40(2) by reference to Mr Dickson’s actual earnings and applied Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (Aitkin). Zurich makes no complaint in relation to the Senior Arbitrator’s approach to the assessment under s 40(2) in respect of those periods.
The challenge to the Senior Arbitrator’s findings is confined to his assessment of Mr Dickson’s ability to earn during periods when he was not actually working. During those periods, the Senior Arbitrator approached the assessment of Mr Dickson’s ability to earn (s 40(2)(b)) pursuant to the provisions of s 43A and the principles discussed in Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; 6 DDCR 339; 71 NSWLR 593 (Muir) (wrongly cited at [99] of Reasons). In Muir, Campbell JA (Basten JA and Rein J agreeing) noted that the factors referred to in s 40 are all ones that concern the practical realities of the worker, in his or her injured condition and with his or her actual age, abilities, limitations and circumstances in life, being able to get and keep employment.
The fact that Mr Dickson had been able to maintain employment for a substantial period between August 2008 and May 2010 earning significant income is undoubtedly a relevant factor but was not in itself decisive of the ultimate question, namely, what was Mr Dickson’s ability to earn in some suitable employment from time to time after the injury. From May 2010 to December 2012 Mr Dickson’s employment history was such that in the main his employment tended to be less demanding in nature, earning him a significantly lower income. It is also relevant that those various employments were punctuated by periods when he didn’t work at all.
In Alexander v Ashfield Municipal Council, unreported, Court of Appeal, 27 October 1982, Hutley JA stated (at [2]) “capacity is diminished, even though in selected instances the worker can earn as much as he did before, if there are fields from which he is excluded, by reason of the injury, in which he laboured at the time of the injury”.
In Mangion v Visy Board Pty Ltd [1991] NSWCC 1; (1992) 8 NSWCCR 175 (Mangion), Judge Burke stated (at 180):
“When assessing a capacity to earn under section 40(2), it is not sufficient to merely identify a particular potential avenue of employment and attribute the income from such a job as a man’s capacity to earn. Allowance must be made for the availability of work – availability, not so much in the sense of a presently depressed labour market but in the sense of the general availability in any labour market. A rarely available niche in the labour market which carries, perhaps, substantial remuneration, does not serve as a sole criterion of capacity to earn.”
As discussed in Muir (at [34]), Summerson v Alcan Australia Ltd [1994] NSWCC 24; 10 NSWCCR 571 (Summerson) and Akawa Australia Pty Ltd v Cassells (1995) 25 NSWCCR 385 (Cassells) are both examples of situations where the worker with a physical disability, who had actually been paid more than his pre-injury rate of pay, was held nonetheless to have a partial incapacity because of the greater difficulty that a person with such a disability had in obtaining and retaining work.
In Summerson, the injured worker was a telephonist who had sustained an injury such that she was unable to perform work of a rapid and repetitive nature using her dominant left arm. His Honour Judge Neilson noted (at 577):
“However, I am persuaded by the submissions of Mr Menary that the appropriate way of looking at the case is that the applicant’s ability to get jobs such as the one she got with George Patterson & Co, is reduced. For example, she could not work where no headset was provided to her, where she would have to hold the telephone appliance in her dominant left hand. Nor would she be able to work with computerised switchboards which would require keying duties with her dominant left hand and which she has said she could not do and which I accept she could not do.
Therefore, the number of jobs which she could hold down has been reduced. That reduction means that if the applicant finds herself unemployed, it is harder and would take longer to obtain suitable employment - that is, employment suitable to a lady with her disability in her dominant left arm.”
In Cassells, the worker suffered a crush injury to his foot following which he was incapacitated for several months. Upon resuming duties the worker undertook a clerical role for which he received wages of at least the amount that he had been receiving prior to being injured. After ceasing work with Zurich, the worker obtained employment as a process worker, again receiving a wage in excess of his pre-accident earnings from October 1988 until May 1999. Notwithstanding the demonstrated capacity to earn as much or more than his pre-accident earnings for a substantial period of time in his injured state, the trial judge was satisfied that he was precluded by reason of his injuries for work in the unskilled labour market. On appeal a challenge to that finding was rejected per Rolfe A-JA (Kirby P (as his Honour was then) and Priestley JA agreeing).
The Court of Appeal in Cowra Shire Council v Quinn [1996] NSWSC 143; 13 NSWCCR 175 expressly approved the approach of Judge Burke in Mangion.
The Senior Arbitrator acknowledged (at [101]) that the calculation of the worker’s ability to earn in suitable employment required, as a consequence of s 40(3) and in turn s 43A(1), that he have regard to the “practical realities that face Mr Dickson faced in his injured condition in getting and keeping employment”.
In particular, the Senior Arbitrator had regard to the particular symptoms Mr Dickson suffered, namely, “tension, dizziness, gastro-intestinal problems, sleeping difficulties and difficulties with concentration and also the evidence that revealed that Mr Dickson was unable to endure any employment in which he was placed under pressure to meet the expectations of others or the expectations of customers…”.
I reject the submission that the Senior Arbitrator failed to give adequate weight to the employments with Tower Risk & Investment Management Ltd and the Australian Apprenticeship Centre. The Senior Arbitrator specifically referred to that work and it is clear from his very detailed decision that he weighed that evidence including Mr Dickson’s earnings during the period from 8 August 2008 to 25 May 2010, together with the evidence of his subsequent employment and the much lower rate of earnings thereafter.
It does not follow, and it is inconsistent with the evidence, that from May 2010 Mr Dickson had a capacity to earn, as Zurich submits, of at least $680 per week. During the period from May 2010 until 31 December 2012, Mr Dickson’s earnings were extremely modest, and often for very short periods. It also fails to recognise that Mr Dickson earned nothing between July and November 2010, November 2010 and March 2011 and from April to June 2011.
Zurich’s submission that Mr Dickson demonstrated a capacity to do normal hours and duties from October 2004 to May 2005 does not advance Zurich’s case on appeal. As Dr McClure reported, and as the Senior Arbitrator noted at [56], after returning to work from leave in February 2004 and building to a full workload, Mr Dickson experienced increasing symptoms as the day progressed. The symptoms progressed to such an extent that he was referred by his general practitioner to Dr Butler and Ms Napier for treatment.
Dr McClure noted that Mr Dickson reported improvement in his symptoms in May 2004 and early 2005 but then stopped his medications and experienced “a big step back”. In May 2005 Mr Dickson was reporting symptoms of feeling tense and wide awake, feelings of internal shaking without external tremor, sweatiness, abdominal discomfort, feeling dizzy, blurred vision and feeling tension. It was clear that as at May 2005 Mr Dickson’s condition was deteriorating. Whether or not he had been able to sustain a full workload prior to that date is not determinative of his ability to earn in suitable employment thereafter.
The submission that the Senior Arbitrator failed to have regard to the 2013 tax return, which was not produced, is irrelevant. Mr Dickson does not press any claim for compensation beyond December 2012.
I reject the submission that if Mr Dickson did not have an ability to earn at least $680 per week, after the 2010 financial year, it must have been because of a change in circumstances which adversely affected his ability to earn. No authority or any reasoned argument was advanced to support that submission.
The assessment of the worker’s ability to earn under s 40(2) is not concerned with change in circumstances. In Mitchell v Central West Health Service (1997) 14 NSWCCR 526 the Court of Appeal (Mason P, Beazley JA (as her Honour then was) and Grove A-JA) held that the words in s 40(2)(b) require that “what is ultimately sought is a weekly average”. The court cautioned against the establishment of a “ceiling” approach in favour of an “evaluation of a level of ability”. Thus it is an error to take only the highest of a number of suitable occupations and hold that highest figure to represents the worker’s ability to earn.
As was explained in Mangion, when one assesses an ability to earn under s 40(2), one is really arriving at a weighted average. Wage rates for jobs within capacity that are rarely available, though perhaps highly paid, rate poorly in such an assessment. Conversely, the income derived from more readily available work rates highly. That is precisely what the Senior Arbitrator did. At [101] of Reasons, the Senior Arbitrator identified the need to consider the practical realities that Mr Dickson faced having regard to his symptoms and his inability to endure any employment in which he was placed under pressure. Mr Dickson’s ability to earn was assessed, as the Senior Arbitrator said at [102], “having regard to the whole of the evidence”. Zurich’s submission completely ignores Mr Dickson’s post-injury employment between May 2010 and December 2012. During that period, the evidence clearly establishes that he was struggling to obtain and retain employment to any substantial degree.
The submission that the Senior Arbitrator erred in law by failing to adequately consider “the necessary factors” is an unhelpful submission in circumstances where the factors the Senior Arbitrator allegedly failed to consider are not identified.
I accept Zurich’s submission that in order to be entitled to weekly compensation it is necessary to show not only a continuing of symptoms but also that the symptoms result in a loss. It is clear that that is what the Senior Arbitrator found. The Senior Arbitrator concluded (at [95]):
“The evidence clearly establishes, to my mind, that Mr Dickson has an incapacity for work resulting from his injuries and that incapacity for work is partial.”
I also accept Zurich’s submission that the assessment of Mr Dickson’s ability to earn is essentially a practical exercise having regard to the realities of the labour market in which he is to be engaged. That was the test the Senior Arbitrator applied. He acknowledged that the calculation of Mr Dickson’s ability to earn as a consequence of s 40(3) and s 43A(1) involved a consideration of the “practical realities” that faced Mr Dickson in his injured condition obtaining and retaining employment (Reasons at [101]). This was consistent with Muir, which the Senior Arbitrator correctly identified and applied.
Zurich’s submission in support of its alleged error of law essentially repeat its alleged error of fact, that is, that the Senior Arbitrator failed to give any or any adequate weight to Mr Dickson’s employment history prior to 2010. I have previously dealt with that submission and rejected it for the reasons identified above.
The submission that “the Arbitrator erred in averaging out the worker’s earnings – see [37] and [38]” does not assist Zurich on this appeal. The passages of the reasons to which Zurich refers concerns the Senior Arbitrator’s analysis of Mr Dickson’s earnings in 2008-09 whilst working for Tower Risk & Investment Management Ltd, David Jones and Staff Leasing. The Senior Arbitrator merely took the reported gross earnings of Mr Dickson during his employment with those employers and averaged it during the period of employment in order to arrive at an average weekly earnings. Zurich does not complain about the Senior Arbitrator’s award in relation to those periods, indeed there is no complaint in relation to the period from 18 November 2008 to 27 May 2010. During that period the Senior Arbitrator applied the worker’s actual earnings in order to calculate his entitlement based on the agreed pre-injury earnings. That was entirely consistent with Aitkin and Pira, and does not involve error.
I reject the submission that there is no evidence to support the proposition that Mr Dickson could only continue to carry out the work that he did up to 2010 after that date, with appropriate medical or other support. I reject it for the following reasons. First, the Senior Arbitrator’s finding that Mr Dickson was partially incapacitated as a result of the injuries he sustained in the course of his employment has not been challenged. Secondly, the submission that there was no evidence of ongoing incapacity is not correct. The evidence is to the contrary. Zurich’s own expert, Dr McClure, opined that Mr Dickson would have a continuing capacity to work of not more than 15–20 hours per week, increasing at most to 25–30 hours per week in unchallenging work or 20–25 hours per week in insurance work. For the reasons that were fully discussed by the Senior Arbitrator, Professor Glozier’s opinion of Mr Dickson’s ability is even more restricted, that is, he is only employable for a few hours per week in an open role. In support of this submission Zurich relied on the evidence of Ms Gold. However, Ms Gold’s evidence does not advance Zurich’s appeal. As at August 2008, Ms Gold diagnosed a chronic major depressive disorder. She expressed no view on Mr Dickson’s ability to earn in the long term.
Zurich also relies on the evidence of Ms Ford. Ms Ford saw Mr Dickson for a limited number of counselling sessions in 2010. Among other things, she diagnosed Mr Dickson with a major depressive disorder. Ms Ford did not offer an opinion regarding Mr Dickson’s ability to work in the future. She recommended continuing cognitive behavioural therapy for treatment of ongoing anxiety and sleep problems experienced at that time.
Dr Wai Shing’s progress notes on 26 August 2008 and 21 September 2009, on which Zurich relies, may offer some support for Mr Dickson’s ability to earn at that time, however, they offer no support for the submission that Mr Dickson would be capable of continuing indefinitely with the work he was doing at that time provided he continued to receive counselling and other treatment.
I also reject Zurich’s submission that if Mr Dickson’s condition deteriorated after 2010 it must have been because his condition was aggravated by his subsequent employment. Zurich has not directed me to any evidence to support the submission that Mr Dickson’s condition was aggravated by his employment since leaving Zurich’s employ. The uncontested evidence is that Mr Dickson was not suffering symptoms before commencing to work at Zurich of the kind that he developed during his employment with Zurich. It is also uncontested that since leaving Zurich, Mr Dickson has never been symptom free.
The submission that Professor Glozier did not obtain a history of productive employment leading up to the 2010 financial year is plainly wrong. Professor Glozier took a detailed history of Mr Dickson’s employment since commencing employment with Zurich in 2003. He described the work with Zurich, CGU, Lumley, Asteron, Australian Apprenticeship Centre and Rebel. He also referred to the casual roles in mail sorting, being a postman and working in retail, which are clearly references to the employments with Australia Post and JB Hi-Fi. Professor Glozier went into considerable detail to describe the work and the physical effect it had on Mr Dickson during the period up to 2010. It follows that the submission that the Senior Arbitrator erred in preferring Professor Glozier’s evidence to that of Dr McClure, due to an alleged absence of a history of productive employment, cannot be accepted.
The submission that Professor Glozier’s evidence did not assist the Senior Arbitrator in directing his mind to the issue of why Mr Dickson was able to earn significantly more in 2010 than he was found capable of thereafter, does not assist Zurich on appeal for a number of reasons. Firstly, Professor Glozier’s opinion was not determinative of the Senior Arbitrator’s assessment of Mr Dickson’s ability to earn. The Senior Arbitrator’s assessment was based expressly on the whole of the evidence, albeit including Professor Glozier’s evidence. Secondly, Professor Glozier explained that, by reason of Mr Dickson’s condition, the employment that he occupied in the insurance industry in underwriting and brokering roles he increasingly found to be “too hard and too pressured” causing him to leave those jobs. As Professor Glozier pointed out, as he continued in his working career when Mr Dickson felt under pressure from time to time, finding it increasingly difficult to maintain employment, he would leave jobs to move on to other employment. Professor Glozier’s opinion was that this was consistent with his generalised anxiety disorder. It was for these reasons that Professor Glozier concluded ultimately that in terms of employability, the history has shown that Mr Dickson is only employable for a few hours per week in an open role.
It follows that grounds (a), (b) and (c) of the appeal fail.

Notices to produce

The power to issue a direction to produce derives from s 357 of the 1998 Act.
Rule 13.4 of the Workers Compensation Commission Rules 2011 provides that the Senior Arbitrator to whom the proceedings are referred may, at any teleconference, or otherwise in a “special case” and for the “avoidance of injustice”, order or refuse to order the issue of a direction for production.
In Attorney General for New South Wales v Chidgey [2008] NSWCCA 65 at [59] Beazley JA (as her Honour then was), with whom James and Kirby JJ agreed, reiterated that it is not sufficient for a party seeking production of documents pursuant to a subpoena to merely establish that the documents sought are or may be relevant to an issue in the proceedings.
Her Honour held, at [64]:
“The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms:
‘The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case…’”
Although the principles expounded by her Honour were in the context of a criminal case they are equally applicable in civil proceedings (ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307).

At a telephone conference on 22 May 2015, Zurich sought an order for directions to be issued to a series of post injury employers, seeking access to employment records, documents concerning any workers compensation claims and sick leave records relating to Mr Dickson.
In answer to a request from the Senior Arbitrator to identify the forensic purpose of the direction, Ms Ireland, who represented Zurich (and David Jones until it was released from the proceedings) submitted (at T21.14):
“MS IRELAND: Well, it’s just that I’d like to know the answer to why David Jones is picked as one in the middle of a series of employers when the evidence from the applicant’s perspective is that he worked in some jobs before and after, some of which or all of which - some of which he said he experienced anxiety symptoms on a daily basis, et cetera. His symptoms recurred, this is in Neverfail and Tower Life which are two positions he had before David Jones and then Australia Apprenticeship Centre considerable pressure mostly associated - he had increasing anxiety, et cetera. This is history given to Dr McClure and if Dr - -” (emphasis added)
Earlier in the telephone conference, Ms Ireland, who as I have indicated initially acted for the two respondents under the nominal insurer lead agent arrangements, pressed for the claim against David Jones to be discontinued on the basis that there was no evidence that it or any post-injury employer was liable to pay compensation to Mr Dickson (T4.15). It was on that basis that Ms Ireland sought, and was successful, in having the claim against David Jones discontinued.
That was consistent with the way the case was argued. In so far as the claim for weekly compensation was concerned, the issues requiring the Senior Arbitrator’s determination were discussed at the initial telephone conference and confirmed at the Arbitration on 16 November 2015 (at T2.22). These issues concerned the question of whether Mr Dickson continued to suffer incapacity as a result of the admitted psychological injury, the extent of the incapacity, and the quantification of Mr Dickson’s entitlements, if any.
I note that the Senior Arbitrator found that, throughout his post-injury employment, Mr Dickson continued to suffer from the effects of the admitted psychological injury sustained during the course of his employment with Zurich (Reasons at [92]). That finding has not been challenged on appeal.
On appeal Zurich submits that the Senior Arbitrator “wrongly refused” the direction and thus the refusal affected his analysis of “a significant factual issue”. Those submissions were not supported by any reasoned argument or authority, except to obliquely refer to the Senior Arbitrator’s remarks at [118] and [119] of the Reasons (quoted at [117] above).
The passages on which Zurich relies are directed to the Senior Arbitrator’s analysis of the claim for compensation during the period from 20 May 2005 to 30 June 2007. For the reasons given by the Senior Arbitrator he declined to make an award in that period because of the imprecise nature of the evidence of actual earnings and periods of employment/unemployment in that period. However, the Senior Arbitrator was satisfied that Mr Dickson suffered an incapacity during that period. It follows that Zurich’s reliance on that evidence has no bearing on the question of whether Mr Dickson’s injury had been aggravated by subsequent employment.
In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (Micallef), Heydon JA (Sheller JA and Studdert AJA agreeing) explained at [45], applying House v The King [1936] HCA 40; 55 CLR 499, to succeed in an appeal of this kind, that is, against a discretionary decision, the appellant must demonstrate that the Senior Arbitrator erred in exercising his discretion in that he:
“(a) made an error of legal principle;
(b)     made a material error of fact;
(c)     took into account some irrelevant matter;
(d)     failed to take into account, or give sufficient weight to, some relevant matter, or
(e)     arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”
I am not satisfied that an error of the kind discussed in Micallef has occurred. As I have indicated, at the time the application for the directions was made, Zurich’s solicitor had submitted there was no evidence of aggravation of Mr Dickson’s admitted injury arising from his subsequent employment after leaving Zurich. Moreover, in support of its successful attempt to have the claim against David Jones discontinued, Zurich submitted that the evidence was to the contrary. Therefore, the Senior Arbitrator was correct to find that the application lacked forensic merit and amounted to a fishing expedition. Zurich had every opportunity to prepare its case and consider whether it needed to join additional post-injury employers. It elected not to do so. The Senior Arbitrator’s decision to refuse leave for the directions to be issued was well within his discretion and involved no error.
I am also mindful of the fact that the Senior Arbitrator agreed to Zurich’s request to issue directions to produce documents to treating doctors, which one would have expected in the normal course of events to have revealed information of the kind that Zurich sought to obtain by issuing directions to post-injury employers.
It follows that this ground of appeal fails.

ORDERS

The Senior Arbitrator’s determination of 15 January 2016 is confirmed.

Judge Keating
President

6 May 2016