Issue 5: May 2019
This issue includes a summary of the April 2019 decisions.
These summaries are prepared by the Presidential Unit and are designed to provide an overview of, and introduction to, the most recent Presidential and Court of Appeal decisions. They are not intended to be a substitute for reading the decisions in full, nor are they a substitute for a decision maker’s independent research.
This issue, and previous issues, of On Appeal is available on the WCC website: http://www.wcc.nsw.gov.au/
Decisions are published on AustLII, JADE and LexisNexis at the following websites:
|ADP||Acting Deputy President|
|AMS||Approved Medical Specialist|
|Commission||Workers Compensation Commission|
|MAC||Medical Assessment Certificate|
|Reply||Reply to Application to Resolve a Dispute|
|WPI||Whole person impairment|
|1987 Act||Workers Compensation Act 1987|
|1998 Act||Workplace Injury Management and Workers Compensation Act 1998|
|2003 Regulation||Workers Compensation Regulation 2003|
|2010 Regulation||Workers Compensation Regulation 2010|
|2010 Rules||Workers Compensation Rules 2010|
|2011 Rules||Workers Compensation Rules 2011|
|2012 amending Act||Workers Compensation Legislation Amendment Act 2012|
|2015 amending Act||Workers Compensation Amendment Act 2015|
RSM Building Services Pty Ltd v Hochbaum  NSWWCCPD 15
Construction of s 39 of the 1987 Act
Neuroscience Research Australia v de Rome  NSWWCCPD 13
Section 151A(1) of the 1987 Act – whether receipt of damages was in respect of an injury for which the employer was liable to pay compensation under the 1987 Act; Codelfa Constructions Pty Ltd v State Rail Authority  HCA 24; 149 CLR 337; Sydney Attractions Group Pty Ltd v Frederick Schulman  NSWSC 858 considered and applied; Adams v Fletcher International Exports Pty Ltd  NSWCA 238 applied; Super IP Pty Ltd v Mijatovic  NSWWCCPD 33 considered and distinguished
Hancock v Holman Industries Pty Ltd  NSWWCCPD 16
Breach of procedural fairness: application of Muin v Refugee Review Tribunal  HCA 30; 190 ALR 601; 76 ALJR 966; error in fact-finding
Canterbury Bankstown Council v Gazi  NSWWCCPD 14
Psychological injury; causation of injury; whether injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to transfer; causation test in s 11A(1) of the Workers Compensation Act 1987; application of Manly Pacific International Hotel Pty Ltd v Doyle  NSWCA 465; 19 NSWCCR 181
18 April 2019
This appeal concerned the application and interpretation of s 39 of the 1987 Act. Section 39 provides that a worker’s entitlement to payments of weekly compensation is only available for an aggregate period of 260 weeks, unless the worker’s degree of permanent impairment resulting from injury is more than 20%.
In September 2000 the worker sustained an injury to his right leg when he fell while pushing a wheelbarrow during the course of his employment. The insurer voluntarily paid weekly payments of compensation.
On 16 July 2018, the worker was assessed by an Approved Medical Specialist to have a whole person impairment of 21% in respect of the 2000 injury. The insurer recommenced weekly payments of compensation from 16 July 2018.
The insurer denied the worker’s claim for weekly payments for the period between 26 December 2017 to 15 July 2018 (the disputed period).
The matter came before a Commission Senior Arbitrator. The Senior Arbitrator found that once a worker receives an assessment of permanent impairment of more than 20%, meeting the requirements of s 39(2), then s 39(1) has no application as if it never existed. As the worker was assessed to have 21% whole person impairment as a result of injury, the Senior Arbitrator awarded the worker weekly payments of compensation for the disputed period. The employer appealed the Arbitrator’s decision.
The issue on appeal concerned whether the Senior Arbitrator erred in her interpretation of s 39 of the 1987 Act. The appellant submitted that the Senior Arbitrator should have found that, where a worker has been assessed to have a degree of permanent impairment of greater than 20%, s 39 applies to permit weekly compensation payments after the end of the aggregate 260 week period only on and from the date of such assessment, and not in the period before such an assessment.
Held: The Senior Arbitrator’s Certificate of Determination was revoked and an award was entered for the respondent employer.
1. The President held that the Senior Arbitrator’s construction of s 39(2) focused almost exclusively on the words in s 39(2) “[t]his section does not apply …”, and by doing so failed to strive to give meaning to all the words in s 39. In particular, the Senior Arbitrator failed to give close consideration to the effect of s 39(3) and its reference to the particular assessment which can only take place as provided by s 65 of the 1987 Act. (-; )
(Project Blue Sky Inc v Australian Broadcasting Authority  HCA 28; 194 CLR 355 and Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT)  HCA 41; 239 CLR 27 applied)
2. The President observed that the words “does” and “is” in s 39(2) strongly indicate the present tense application of the provision. That is, s 39(2) is directed to a circumstance existing at the time a worker’s injury results in permanent impairment of more than 20% ().
(Re Dingjan and Ors Ex Parte Wagner and anor  HCA 16; 183 CLR 323 applied)
3. The President held application of s 39(2) is contingent on the worker satisfying the requisite degree of “permanent impairment resulting from the injury”. The words “permanent impairment” are given meaning, for the purpose of s 39, by s 39(3). Section 39(3) provides a detailed definition which sets out how the operative provision in s 39(2) is to operate. The function of s 39(3) is to supply the statutory definition for the operation of s 39(2). Section 39(3) must be given some work to do and that is achieved by reading s 39(3) into s 39(2), to give meaning to the phrase “permanent impairment” (–).
4. The President observed that the critical question in this matter is at which point does s 39(1) not apply? To answer that question it must be determined whether s 39(2) supplies a temporal component to the operation of s 39. The President found that it did. That is, the lifting of the bar under s 39(1) depended on the existence of the permanent impairment assessment as provided for in s 39(3). Section 39(3) is the definitional provision which supplies the only process by which permanent impairment can be assessed in s 39(2). (; )
(Shi v Migration Agents Registration Authority  HCA 31; (2008) 235 CLR 286 applied)
5. The President held that where a worker ceases to be paid weekly payments of compensation due to s 39(1), it is only if a worker has been assessed, for the purpose of s 65, to have a degree of permanent impairment of greater than 20%, that s 39(2) is engaged to determine whether the worker’s entitlement to weekly payments of compensation may be restored. The worker having undertaken the process of an assessment of permanent impairment as defined in s 39(3) and having achieved the criterion set out in s 39(2) is then relieved of the bar provided for in s 39(1). The bar is lifted at the point in time of the assessment of permanent impairment of greater than 20%. The phrase “[t]his section shall not apply” set out in s 39(2) is dependent upon the completion of this process and the achievement of the criterion. The operation of s 39(2) is subject to the existence of an assessment of the degree of permanent impairment, as set out in s 39(2) when read with s 39(3). A worker’s entitlement to weekly compensation, beyond the aggregate period of 260 weeks remains dependent on satisfying the preconditions for payment of weekly compensation pursuant to s 38 of the 1987 Act. This is confirmed by the note to s 39(2). It followed that the Senior Arbitrator’s determination was revoked and an award entered for the respondent. (, –)
6. The worker submitted that s 39(2) is a beneficial provision. He further submitted that to give effect to the beneficial purpose of s 39(2) the provision must be construed to mean that once the requisite degree of permanent impairment is met under s 39(2) then s 39(1) has no application, as if it never existed. The President observed that s 39(2) was an excepting provision and therefore did not warrant a beneficial interpretation as suggested by the worker. However, in the alternative, the President observed that a beneficial interpretation of a provision could not be applied if it is contrary to the textual considerations. The President said that if the beneficial interpretation urged by the worker were adopted this would produce a result which was contrary to the textual construction, and, was therefore not permitted. (-)
(Rose v Secretary, Department of Social Security FCA 59; 21 FCR 241, Department of Social Security; Bull v Attorney-General (NSW)  HCA 60; 17 CLR 370 considered)
11 April 2019
The respondent worker was a senior research officer, commencing employment with the appellant employer in January 2012. Her final contract ceased in January 2016.
The respondent alleged that she was bullied and harassed by her supervisor, Dr Brown, during the course of her employment and lodged a formal grievance in May 2015. The grievances were listed under four headings, namely:
(a) she was employed under false pretences, in that her name and credibility were exploited publicly while she was excluded from involvement in the design and conduct of the study she was working on;
(b) her research area had been appropriated by her supervisor, who was undertaking a research program entirely based on work the respondent had done prior to commencing with the appellant;
(c) she had repeatedly been denied professional development opportunities, and
(d) she was bullied, harassed and publicly humiliated since the commencement of her employment.
The worker brought a claim for weekly payments of compensation for a closed period, together with a claim for lump sum compensation pursuant to s 66 of the 1987 Act, on the basis of an alleged psychological injury in the nature of an adjustment disorder with depressed mood and anxiety, resulting from the above conduct.
The worker had previously lodged a “general protections” application against the appellant in the Fair Work Commission (the Fair Work application). That application was settled by way of a deed (the deed), signed by the parties on 23 November 2016.
The Arbitrator found in favour of the respondent worker in respect of all issues (including, amongst other things, that the respondent was not excluded from receiving compensation because of the operation of s 151A of the 1987 Act) and awarded weekly payments of compensation pursuant to s 36 and s 37 of the 1987 Act. The employer appealed the Arbitrator’s decision in respect of whether the worker was excluded by operation of s 151A of the 1987 Act from workers compensation entitlements because she had received damages in respect of the Fair Work application.
The issues on appeal were whether the Arbitrator erred in:
(b) not incorporating the statement of grievances into the deed (Ground 2);
(c) failing to determine that the subject matter of the deed included a claim for damage to the respondent’s emotional health, which flowed from the allegations in the statement of grievances and the subsequent termination of her employment, and was the same injury as the workers compensation claim (Ground 3);
Held: The Certificate of Determination dated 12 November 2018 was confirmed.
1. It is settled law that it is not the execution of the deed that invokes the prohibition in s 151A of the 1987 Act, it is the recovery of damages. It is also well settled that the word “recovers,” for the purpose of s 151A means “receipt of moneys.” ()
(Adams v Fletcher International Exports Pty Ltd  NSWCA 238 (Adams), at  and Watson v Newcastle Corporation  HCA 6; 106 CLR 426, 445 applied)
2. If the word ‘recover’ is interpreted as requiring receipt of the money, and the worker receives a sum of money that is paid as damages, what remains to be determined is whether the damages were paid in respect of the same injury that is relied on in seeking workers compensation. The character of the payment is governed by the deed and the letter (if any) that accompanied the payment. In this case, the moneys were paid by electronic transfer. ()
(Adams, at  applied)
3. In this case, the respondent conceded that she had received $35,000 in accordance with the agreement recorded in the deed. The deed recorded that the figure was made up of $20,000 in general damages and $15,000 in respect of legal costs. It was clear that the payment of $20,000 satisfied the definition of “damages” contained in s 149(1)(a) of the 1987 Act, and the matter proceeded before the Arbitrator on that basis. (–)
4. It was alleged by the appellant that the Arbitrator erred by “failing to determine that the respondent had received damages.” Given that the matter proceeded on the basis that the payment was for “damages” pursuant to s 149 of the 1987 Act, and the respondent did not contest that the damages were as defined in s 149(1), it was not necessary for the Arbitrator to make a determination that the payment was in respect of “damages”. There is no error on the part of the Arbitrator in failing to determine a matter that was not raised. The allegation that the Arbitrator erred by failing to determine that the respondent received damages was not made out and this ground of appeal failed. ()
(Brambles Industries Ltd v Bell  NSWCA 162; 8 DDCR 111 applied)
5. Ground two alleged that the Arbitrator erred in failing to incorporate the statement of grievances into the deed. The appellant asserted that recital (b), which referred to the respondent’s complaint lodged in respect of the conduct of Dr Brown, could only be a reference to the statement of grievances. ()
6. In Deputy President Wood’s view, a fair reading of the response indicated that in the Fair Work application, the respondent was seeking redress on the basis that her employment contract had allegedly not been renewed because she had lodged a grievance, and further, she was not being compensated fairly for work done to complete her research after her employment was terminated. It was abundantly clear from the available evidence that the Fair Work application did not seek damages in respect of the alleged grievances. (–)
7. In any event, both the parties at arbitration and on appeal proceeded on the basis that the deed was unambiguous. In those circumstances, the deed is to be construed on its face, and not by reference to extrinsic material. (–)
(Sydney Attractions Group Pty Ltd v Frederick Schulman  NSWSC 858 and Codelfa Constructions Pty Ltd v State Rail Authority  HCA 24; 149 CLR 337 (Codelfa) considered and applied)
8. The statement of grievances was prepared well before the Fair Work application and for the purpose of lodging a grievance with the appellant. The appellant, by seeking to have the statement of grievances imported into the deed, was attempting to go beyond the deed in order to have the deed construed in its favour. There was no basis upon which the statement of grievances was relevant to the construction of the deed, which disclosed no ambiguity. Mere reference in the recitals to the fact that a grievance was made was not sufficient to say that the grievances were part of the complaint made by the respondent. The Arbitrator was correct to reject the submission that the statement of grievances should be incorporated into the deed. The appellant had failed to identify error on the part of the Arbitrator and this ground of appeal failed. ()
9. The appellant said that the respondent’s alleged injuries were not only caused by matters referred to in the statement of grievances, but also the events that post-dated the lodgment of the grievance. The appellant said that the respondent’s own forensic specialist concluded that such circumstances (which included the termination) were causative of the injury. On that basis, the appellant submitted that the causative events after the grievance was lodged were the subject matter of the Fair Work proceedings or at least arising out of or in connection with the subject matter. It was difficult to see how this submission assisted the appellant. ()
10. The appellant submitted that it could be inferred that the damage to the respondent’s emotional health was as a result of the matters referred to in the statement of grievances and the subsequent stressors. Deputy President Wood did not accept that such an inference could be drawn, when there was no evidence to support it, and the damage might equally be asserted to result from the alleged damage to reputation. In any event, once again, the deed was unambiguous and was to be construed on its face, without reference to extrinsic evidence to assist in the interpretation of the deed. This ground of appeal disclosed no error on the part of the Arbitrator and failed. (–)
(Codelfa, at  applied)
12. Deputy President Wood accepted the appellant’s submission that s 151A of the 1987 Act does not operate in respect of the making of a claim for compensation, and it only applies where there has been a receipt of moneys in respect of damages. However, it was appropriate and necessary for the Arbitrator to look to the terms of the deed to determine whether the damages recovered were in respect of an injury and if so what that injury was. Clause 1.1 of the deed identified that workers compensation claims were to be excluded, and there was no other part of the deed that contradicted that exclusion. ()
(Super IP Pty Ltd v Mijatovic  NSWWCCPD 33 (Mijatovic), at  considered)
13. If the deed provided for damages in respect of the work injury, then there would be an inconsistency within the deed. Mijatovic was not on all fours with this case and was of no assistance to the appellant. This ground of appeal failed to identify error on the part of the Arbitrator, and could not succeed. (–)
14. The appellant submitted that reading the deed as a whole, the parties agreed to settle the proceedings, and all matters arising out of or in connection with the proceedings, including a claim for pain and suffering. The appellant contended that the “pain and suffering” component was a reference to the work related psychological injury. The psychological injury claimed in the workers compensation proceedings was said to have resulted from the events, namely being ostracised, excluded from participating in meetings, planning and studies, delay in publishing her research, misappropriation of her intellectual property, and being denied access to her own research. None of these matters fell within the ambit of the claims as expressed in the recitals, and the recitals made no reference to the workers compensation claim or the psychological injury claimed in these proceedings, which was alleged to have resulted from bullying and harassment in the workplace. (–)
15. Deputy President Wood held that in circumstances where the parties have not raised any issue that the term “pain and suffering” was ambiguous, it was not open to the appellant to seek to look beyond the deed to ascertain its meaning. As the respondent submitted, the term was not a reference to an injury, and when considered in the context of the deed, the term could not be considered to be any more than a reference to the consequences of the appellant’s alleged conduct. It followed that the submission by the appellant that the payment of damages for “pain and suffering” was payment of damages for the injury could not be accepted. (–)
16. Deputy President Wood held that the Arbitrator correctly rejected the submission that the statement of grievances ought to be incorporated in the deed. In any event, whatever was the subject of, or arose out of the proceedings, that did not answer the question of whether the payment of damages was in respect of the work injury. The Arbitrator did not err in his finding that the payment of damages was not in respect of the work injury. (–)
Conclusion17. The appeal failed to disclose the requisite error in accordance with s 352(5) of the 1998 Act. The conclusions and findings made by the Arbitrator were open to him on the evidence before him and his decision disclosed no error of fact, law or discretion. ()
24 April 2019
The appellant worker was employed by the respondent employer as a sales representative and merchandiser. His duties largely involved dealing with Bunnings stores, through which much of the product of the respondent was marketed. The appellant’s pleaded injuries were to the left knee (in an incident at a Bunnings store on 18 May 2015) and the lumbar spine (in the incident on 18 May 2015, and as a consequential condition resulting from altered gait associated with the left knee injury). The appellant underwent surgery to the left knee (arthroscopic partial meniscectomy) on 13 October 2015, and fusion at L4/5 in July 2017.
In prior proceedings involving the same subject matter, the appellant advised that there was a prior injury with the same employer, relating to the same body parts, which was not reported. This was not addressed in the medical evidence. Those proceedings were discontinued so any impact of the earlier incident could be addressed.
In the current proceedings, the appellant claimed medical expenses (including the cost of the surgical procedures) and weekly compensation. As the matter was ultimately contested, the respondent disputed the occurrence of the alleged injuries and consequential condition, but said that, if the appellant succeeded on these issues, “it’s conceded that the compensation claim is payable”.
The Arbitrator was not satisfied that the worker had discharged the onus on him to establish that, more probably than not, he sustained an injury to his left knee and lumbar spine arising out of, or in the course of, his employment with the respondent to which his employment was the substantial or main contributing factor. The worker appealed.
The issues on appeal were whether the Arbitrator erred:
(a) in accepting that the incident occurred, and then failing to properly consider whether the incident was capable of causing the injury to the left knee demonstrated on the MRI scan of 27 June 2015 (Ground No 1);
(b) when she failed to properly consider that all doctors accepted that the injury was caused by the incident of 18 May 2015 (Ground No 2);
(c) when she failed to properly consider that Dr Ong was of the view that the injuries were caused by the incident when he had the advantage of having seen the appellant both before and after the incident (Ground No 3);
(d) when she placed significance on the fact that Dr Ong’s notes of 1 June 2015 did not describe an incident but did not weigh that against the fact that his note of 6 March 2015 also did not describe an incident (Ground No 4), and
(e) when she failed to give reasons why Dr Giblin’s report of 9 July 2018 required explanation (Ground No 5).
Held: The Certificate of Determination dated 15 November 2018 was revoked and the matter was remitted for re-determination by another Arbitrator.
Grounds Nos 1, 3 and 4
It was convenient to deal with these grounds together. ()
The notations in Dr Ong’s notes
2. At the outset, it was appropriate deal with the submissions going to the Arbitrator’s remarks at  to  of her reasons regarding Dr Ong’s notes. The Arbitrator said it appeared various notations saying “W/C” may have been added to the notes at some time after the notes were initially made. This proposition was not one that was raised by the respondent, or was the subject of submissions by either party. The first recorded consultation in Dr Ong’s notes, after 18 May 2015 (the date of the frank incident) was on 1 June 2015. The note on that day did not make obvious specific reference to a history of injury, although it referred to the left knee, and a discussion about a CT scan of the lumbosacral spine and an MRI scan of the left knee. The notation “W/C” was written in the margin next to that note, as it was against many other entries thereafter. The appellant submitted this clearly identified the consultation as relating to a workers compensation matter. ()
3. Thus, at least in so far as the notes were concerned, the notation was significant, potentially going to whether it should be inferred that a work injury was mentioned on that consultation. If the notation was added at some unidentified later time, this could arguably cast doubt on whether a work injury was mentioned at the consultation. The Arbitrator’s observations on this point did have the capacity to affect the result. As the appellant correctly submitted, the reasons did “not identify what significance or weight [the Arbitrator] placed on that conclusion”. ()
4. If a court or tribunal proposes deciding a case by reference to matters outside the parties’ submissions and how they have conducted the matter, that prospect should be raised with the parties. It followed that there was a breach of the rules of procedural fairness, in how the notations were dealt with. It could not be concluded that this error could not have affected the result. A perceived lack of reliability in Dr Ong’s notes and reports was a factor in the Arbitrator’s analysis, which led to her conclusion that the appellant’s onus was not discharged. It followed that this constituted appealable error. (–)
(Muin v Refugee Review Tribunal  HCA 30; 190 ALR 601; 76 ALJR 966, at ; Stead v State Government Insurance Commission  HCA 54; 161 CLR 141 (Stead), at , Seltsam Pty Limited v Ghaleb  NSWCA 208; 3 DDCR 1, at –, Wrigley v Holland  NSWCA 109, at  and Toll Pty Limited v Morrissey  NSWCA 197; 6 DDCR 561 (Morrissey), at  applied)
The history of two injuries
5. It was part of the Arbitrator’s reasoning, that the state of the evidence relating to an earlier incident in March 2015 raised doubts about whether injury to the left knee and lumbar spine resulted from the incident (the occurrence of which was conceded) on 18 May 2015. The Arbitrator said that there was no reason to think that Dr Ong’s records were not correct. (–)
6. The Arbitrator’s reasoning relied to a significant extent on the possible importance of the incident on 6 March 2015, and the possibility that symptoms following 18 May 2015 represented a continuance of symptoms from the earlier incident, rather than from the incident on 18 May 2015. The Arbitrator was critical of the state of the evidence, in that some explanation of the earlier incident was not offered by the appellant, including going to the opinion of Dr Giblin. The appellant submitted it was not apparent what part of Dr Ong’s report needed to be clarified. ()
7. An issue having arisen regarding the possible significance of the earlier incident on 6 March 2015, the appellant relied on a report from the treating general practitioner which recorded that any symptoms at that time “settled with the use of Mobic”, and a report from the qualified orthopaedic surgeon Dr Giblin, that the earlier incident had no part to play in causation of symptoms that followed the later incident. This evidence, if accepted (and there was no evidence to the contrary) would have rendered the incident on 6 March 2015 an irrelevance. ()
8. The Arbitrator was required to engage with the conflicting medical evidence. The appellant’s counsel, at the arbitration hearing, specifically submitted on Dr Ong’s report dated 30 July 2018, and the proposition that it was inconsistent with the presence of a pre-existing problem persisting up to the time when the incident on 18 May 2015 occurred. The respondent’s counsel, making submissions at the arbitration hearing, referred to Dr Giblin’s report dated 9 July 2018, and said he assumed it had been “put together to exclude a prior incident being the cause of the [appellant’s] problems”. There was not a specific submission on the respondent’s part, to the Arbitrator, that the histories in these supplementary reports dealing with the effects of the incident on 6 March 2015 were unreliable or wrong. It was, in the circumstances, necessary that the Arbitrator deal with these two supplementary reports, whether she accepted them, and why. (–)
(Charles Sturt University v Manning  NSWWCCPD 10, at – applied)
9. The evidence from Dr Ong, the treating general practitioner, clearly established, on the basis of the histories in his reports, that two such incidents occurred. It also dealt with the doctor’s opinion of the significance of each. The Arbitrator appeared to have misapprehended the potential effect of the supplementary reports, and the use the appellant sought to make of that evidence. The way in which the Arbitrator dealt with the supplementary reports constituted factual error. The consequence of this was that the Arbitrator failed to “enter into the issues canvassed” in the appellant’s medical case, particularly as these related to the significance (or lack of it) of the earlier of these incidents. This constituted factual error of the type identified in Raulston v Toll Pty Ltd  NSWWCCPD 25; 10 DDCR 156, in that the Arbitrator failed to meaningfully consider the significance of evidence contained in the supplementary reports. The effect of this was that the fact-finding process miscarried. ()
10. When the reasons were read as a whole, the approach taken to the incident in March 2015, and its potential causative role in the appellant’s symptoms, constituted a significant factor in the Arbitrator’s conclusion that the appellant had failed to discharge his onus of proving that injury was suffered in a conceded incident on 18 May 2015. The error affected the result and was appealable error. ()
Disposition of the appeal
11. The above was sufficient to dispose of the appeal, and it was unnecessary to deal with the balance of the grounds. The first of the found errors involved a procedural fairness ground. It was effectively necessary that the fact-finding process be undertaken afresh. It was appropriate that the matter be remitted pursuant to s 352(7) of the 1998 Act for rehearing by a different arbitrator. ()
(Stead, at , and Morrissey, at  applied)
Psychological injury; causation of injury; whether injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to transfer; causation test in s 11A(1) of the Workers Compensation Act 1987; application of Manly Pacific International Hotel Pty Ltd v Doyle  NSWCA 465; 19 NSWCCR 181
11 April 2019
The issue in dispute on appeal primarily concerned the application of s 11A of the 1987 Act. The appellant submitted that the psychological injury was wholly or predominantly caused by reasonable action taken in respect of the worker’s transfer of employment.
The worker’s claim before the Arbitrator was run on the basis of two different causes of psychological injury; (i) bullying and harassment and/or (ii) excessive workplace demands which occurred during a period in which the worker was moved from Canterbury Council premises to the new amalgamated Canterbury Bankstown Council at Bankstown.
The Arbitrator was not satisfied on the evidence that the worker was bullied or harassed, treated unfavourably or subjected to inappropriate behaviour in the workplace. However, the Arbitrator was satisfied that the excessive work demands placed on the worker and the difficulties that she encountered in the workplace “from at least the latter part of June 2017 until her last day of work on 28 August 2017 did cause her psychological injury”. The Arbitrator entered an award for the worker for the payment of weekly payments of compensation from 28 August 2017 to date and continuing and for reasonably necessary medical expenses arising from the psychological injury.
It was not disputed that the worker sustained a psychological injury.
The issues in dispute on appeal were whether the Arbitrator erred:
(a) for the purposes of s 11A(1) of the 1987 Act, in fact and law in failing to consider whether the transfer was the whole or predominant cause of her psychological injury, as required by Manly Pacific International Hotel Pty Ltd v Doyle  NSWCA 465; 19 NSWCCR 181 (Doyle), at . (Ground One)
(b) in fact and law in finding that the worker’s responses to employment conditions after a physical transfer were not relevant to this inquiry. (Ground Two)
(c) in law in failing to hold that a broad view should be taken of the expression, “action with respect to transfer”, extending to the whole process of transfer, including, but not limited to, learning new work systems and a new computer software system, moving premises, learning new procedures and new protocols, coming under new management and supervision, and adapting to new work tasks and responsibilities: per Northern NSW Local Health Network v Heggie  NSWCA 255; 12 DDCR 95 (Heggie) . (Ground Three)
(d) in fact and law in failing to hold that the worker’s injury was wholly or predominantly caused by reasonable action taken by or on behalf of the appellant with respect to transfer within the meaning of s 11A of the 1987 Act. (Ground Four)
(e) in fact in finding that the worker was exposed to an excessive workload after her physical transfer to Bankstown. (Ground Five)
Held: The Arbitrator’s Certificate of Determination was in part revoked and the matter was remitted, pursuant to s 352(7) of the 1998 Act, to the same Arbitrator for re-determination.
1. As Ground Five purported to dispute the Arbitrator’s finding on injury, namely in respect of the finding that the worker was exposed to an excessive workload after her physical transfer to Bankstown, the President found it convenient to deal with it first before the remaining grounds of appeal were considered. ()
2. The President noted the fact that it was possible for a different view to be taken on the evidence is not a reason to intervene on appeal. Ground Five purported to re-ventilate the merits as argued before the Arbitrator. To the extent that it sought to cavil with the Arbitrator’s factual findings that the worker was exposed to an excessive workload, Ground Five was not made out. The President was not satisfied that the appellant discharged the relevant onus to establish that there were sufficient grounds to overturn the Arbitrator’s decision. No error of fact in the relevant sense had been identified. ()
(Singh v Ginelle Pty Ltd  NSWCA 310, ) and Raulston v Toll Pty Ltd  NSWWCCPD 25; 10 DDCR 156 applied)
3. The appellant further submitted that the Arbitrator erred in law by confusing the provisions of s 4 and s 11A of the 1987 Act. The President found that the Arbitrator was entitled to consider the worker’s perception of real events in determining what was causative of the injury for the purposes of s 4 of the 1987 Act. To the extent that this ground of appeal suggested that the Arbitrator considered the worker’s “perception” in determining the s 11A defence, this assertion had not been made good. No relevant error had been demonstrated. (–)
Grounds one to four
4. The appellant’s submissions dealt with the first four grounds of appeal together. This was done in light of the narrow compass of the appeal, which was to determine whether the appellant’s “action with respect to transfer” was still ongoing after the worker was physically moved from Canterbury Council premises to the new amalgamated Council premises. These grounds essentially depended on whether the Arbitrator erred in the application of the appropriate test, under s 11A of the 1987 Act. (–)
5. In relation to Ground One, the appellant submitted that the Arbitrator erred by incorrectly considering and misapplying the decision of Doyle by solely relying on the minority judgment of Davies AJA, regarding the correct approach to “action with respect to transfer”. The appellant submitted the Arbitrator should have considered and applied the majority judgment and followed the reasoning of Fitzgerald JA (Citing Doyle – (Mason P agreeing). ()
6. The President found that Arbitrator ought to have considered whether the worker’s transfer was the whole or predominant cause of her psychological injury, which is a question of fact and degree involving a consideration of all of the factors which produced the condition in accordance with the majority decision on this point in Doyle. Those factors may include the circumstances in which a worker was required to work because of the transfer from one position to another, or in the present case the circumstances in which the worker was required to work following the physical transfer to the amalgamated premises. This is consistent with the broad approach taken in Heggie. ()
7. Section 11A(1) of the 1987 Act, when properly construed, provides an employer with relief from liability in eight identified categories. Each category is to be viewed through the lens of the words of the section immediately preceding the listing of the eight categories. Namely, was the psychological injury wholly or predominantly caused by reasonable action taken, or proposed to be taken, by or on behalf of the employer with respect to one (or more as the case may be) of the eight listed categories. ()
8. The Court of Appeal in Heggie was dealing with the category of “discipline” in s 11A of the 1987 Act and was of the view that a broad approach should be taken to “action with respect to discipline”. The President found that while the decision in Heggie was factually distinct from Doyle and the present case, it remains relevant to the proper approach to be taken to determining s 11A(1) of the 1987 Act. There was no warrant to depart from the approach taken in Heggie with respect to the category of “transfer” or the other categories in s 11A. As was said by the majority in Doyle, it is a “question of fact and degree” as to whether the relevant category was the whole or predominant cause of a worker’s psychological injury within the meaning of s 11A(1). ()
9. The President found that the Arbitrator failed to look at the circumstances, submitted by the appellant, that were allegedly a relevant cause of the psychological injury for the purposes of s 11A of the 1987 Act. The Arbitrator also failed to properly evaluate the evidence, against his findings on injury, in determining the appellant’s s 11A defence. This was a result of the Arbitrator’s misapplication of the decision in Doyle. The Arbitrator’s failure to undertake the appropriate task in determining the s 11A defence was an error of law. It followed that Grounds One and Three were made out. (–)
10. The President noted that whilst in Grounds Two and Four the appellant alleged both errors of fact and law, it was apparent from a consideration of the submissions that the substance of this complaint related to the Arbitrator’s mistaken application of the minority decision in Doyle and that the facts in the present case should have been considered consistently with the majority decision. The Arbitrator’s error in this respect infected the Arbitrator’s fact finding exercise and ultimate approach to determining the s 11A defence. It followed that the question of the establishment (or not) of the s 11A defence had to be re-determined. ()
11. The appellant sought the Arbitrator’s decision be revoked and an award made in its favour be substituted. Alternatively, the appellant sought that the appeal be allowed and the matter remitted back to the Arbitrator for determination of the s 11A defence in accordance with the correct approach. ()
12. The President found that in the current circumstances, to enable the parties an opportunity to ventilate the issues in accordance with the correct approach to s 11A of the 1987 Act it was necessary that the matter be remitted, pursuant to s 352(7) of the 1998 Act, to the same Arbitrator for re-determination. This would enable the appellant to properly articulate the actions it said it took with respect to transfer and how they related to the psychological injury as found by the Arbitrator. Whether the employment conditions after the physical transfer were relevant to the s 11A inquiry and whether the psychological injury was wholly or predominantly caused by reasonable action taken by or on behalf of the appellant with respect to transfer would be a matter considered in the redetermination. ()
13. It was clear on the evidence that the worker’s psychological injury was multifactorial. There was no specific medical evidence going to the s 11A of the 1987 Act question, except for the supplementary report of Dr Whetton, a psychiatrist qualified by the appellant, which recorded that the transfer could be regarded as the whole or predominant cause of injury. The President noted however that Dr Whetton’s opinion, in so far as it purported to provide a legal conclusion on causation under s 11A, was not conclusive to the determination of the appellant’s s 11A defence. (–).
14. The worker raised a “cross-appeal” in her Notice of Opposition to the Appeal alleging that the Arbitrator erred in finding that the allegation of bullying and harassment was not made out. The President confirmed that there is no provision for a “cross-appeal” in the Commission and that s 352 of the 1998 Act, r 16.2 of the 2011 Rules and Practice Direction No 6 specify the procedural requirements in which an appeal against a decision of an Arbitrator must be lodged. Whilst the Commission is to conduct matters with as little formality and technicality as possible, the President found that it would not be appropriate in these circumstances to effectively permit the worker to pursue an appeal without complying with s 352 and the procedural requirements for lodging an appeal. (–).