Queensland v Workers' Compensation Regulator
[2016] ICQ 21
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- Unreported Judgment
- Queensland v Workers' Compensation Regulator[2016] ICQ 21
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Queensland v Workers' Compensation Regulator[2016] ICQ 21
Queensland v Workers' Compensation Regulator[2016] ICQ 21
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | State of Queensland (Department of Education and Training) v Workers’ Compensation Regulator [2016] ICQ 021 |
PARTIES: | STATE OF QUEENSLAND (DEPARTMENT OF EDUCATION AND TRAINING) (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) |
FILE NO/S: | C/2016/7 |
PROCEEDING: | Appeal |
DELIVERED ON: | 7 September 2016 |
HEARING DATE: | 18 August 2016 |
MEMBER: | Martin J, President |
ORDER/S: |
|
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the appellant and one of its employees agreed on a graduated return to work plan (GRTWP) – where the appellant sought to make changes to that plan – where the employee suffered a panic attack after being told of that proposal – where the employee successfully claimed workers’ compensation in respect of a psychological injury sustained in the course of her employment – where the Commission dismissed the appellant’s appeal of a decision of the Regulator to confirm the acceptance of the employee’s claim – whether the Commission made factual findings not open on the evidence – whether the Commission gave adequate reasons for its findings – whether the Commission made errors of fact in accepting the evidence of some witnesses over others – whether the Commission erred by applying the wrong test to ascertain whether the appellant’s conduct was reasonable management action Administrative Decisions (Judicial Review) Act 1976 (Cth) Customs Act 1901 (Cth) Industrial Relations (Tribunals) Rules 2011 (Qld), r 139, r 226 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 32(1), s 32(5) |
CASES: | Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, cited House v The King (1936) 55 CLR 499, distinguished Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263; [2001] FCA 865, cited Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, distinguished |
APPEARANCES: | M Healy instructed by G Cooper (Crown Solicitor) for the appellant S P Gray directly instructed by the Workers’ Compensation Regulator for the respondent |
- [1]In this appeal, the State of Queensland, through the Department of Education and Training (the Department), seeks to reverse a decision of the Commission in which the decision by the Regulator to allow compensation to a teacher, Narda Salm, had been confirmed.
The Application to Appeal
- [2]The Application to Appeal is not in the form required by the Industrial Relations (Tribunals) Rules 2011. Rule 139 provides that such an application is to “state concise grounds of appeal”. This application does not. What are described as the grounds of appeal are a jumble of grounds, submissions, arguments, and asides. It is, to that extent, incompetent.
- [3]A failure to comply with the Rules exposes a party to an order under r 226, including an order declaring the document to be ineffectual and, thus, the possible consequence that no appeal will have been made within time. No application was made by the respondent for such an order, but such an order may be made by the Court without an application.
Background
- [4]Narda Salm was employed as a teacher from 2001 until 2014. In 2013, she twice underwent surgery for matters unrelated to her employment. That resulted in her suffering certain physical restrictions and made her become tired more easily.
- [5]In February 2014, Ms Salm lodged an application for compensation for a psychological injury which she said she had suffered during the course of her employment as a teacher at Upper Mt Gravatt State School. The injury alleged by her did not arise out of her work duties but in respect of the management of a graduated return to work plan which had been instituted as a consequence of her condition following surgery. The person who was charged with the management of the return to work plan was the school principal, Mr Brady.
- [6]The issues which were before the Commission included:
- (a)whether Ms Salm suffered from a psychiatric or psychological injury within the meaning of s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act),
- (b)whether she had sustained a psychological injury arising out of or in the course of her employment,
- (c)whether her employment was the “major significant contributing factor” to her injury, and
- (d)whether s 32(5)(a) of the Act was (b) of the Act applied in the circumstances.
- (a)
- [7]At the time, the relevant parts of s 32 of the Act provided:
“32 Meaning of injury
- (1)An injury is personal injury arising out of, or in the course of, employment if—
- (a)for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
- (b)for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.
…
- (5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
- (a)reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
- (b)the worker’s expectation or perception of reasonable management action being taken against the worker;
- (c)action by the Regulator or an insurer in connection with the worker’s application for compensation.”
The grounds of appeal
- [8]There are 14 “grounds of appeal” which the Department has identified as consisting of eight errors of fact, one error of law and five areas of mixed fact and law.
- [9]In its written submissions, the Department has referred to observations made by Finkelstein J in Jegatheeswaran v Minister for Immigration and Multicultural Affairs.[1] In that case, his Honour referred to the remarks of Black CJ (with whom Spender and Gummow JJ agreed) in Curragh Queensland Mining Ltd v Daniel,[2] where he said:
“A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical for the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.”
- [10]While what Black CJ said is of considerable weight, it was not with respect to a proceeding such as occurs in the Commission. That decision concerned the provisions available for review of administrative decisions under the Administrative Decisions (Judicial Review) Act 1976 (Cth) and, in particular, provisions of the Customs Act 1901 (Cth). There is, with respect, no need to go any further than to say that in order for an error of fact to be appealable, it must be a material error of fact. In other words, the error of fact must have been material to the ultimate decision which has been made.
- [11]In its written submissions, the Department says:
“The thirteen errors of fact and of mixed fact and law, including some of the type described and explained by Finkelstein J, and some more significant, have produced a decision which is wrong. A decision which is plainly unreasonable and unjust in the sense described in House v The King.[3]”
That is not the test. The principles in House v The King were concerned with the manner in which an appeal against an exercise of discretion should be determined. The findings of fact by a Tribunal do not rely upon the exercise of a discretion.
- [12]I turn now to the grounds of appeal.
Ground 1(a)
- [13]This ground, contrary to the rules, contains two grounds of appeal. First it asserts that the Commission erred in finding that the major depression suffered by the claimant worker, diagnosed on 2 May 2013, had been treated by the time she commenced a graduated return to work program on or about October 2013. That error is said to be found in [201] of the Commissioner’s reasons. This ground then goes on to assert, presumably as a further ground of appeal, that no reasons were given for ignoring the evidence of Dr Van Maanen, the general practitioner who was treating Ms Salm.
- [14]If one turns to [201] of the reasons, one finds that the Commissioner did not make a finding in that paragraph. Rather, it is a recitation, or summary, of some of the evidence given by Dr Van Maanen.
- [15]The written submissions in support of this ground are inconsistent with the matters expressed in the application to appeal. In the application to appeal, the error is said to be the finding that Ms Salm had been “treated” by the time she commenced a graduated return to work program, whereas in the written submissions it is argued that the error was to find that her depression had “resolved” by that time. In [201], the Commissioner noted that Dr Van Maanen believed that there were indicators that any depressive condition which may have been suffered by her was temporary and had resolved by this time. That is not a finding by the Commissioner.
- [16]The Commissioner found in [208] that he could be satisfied that on 16 October 2013 Ms Salm had been cleared to return to work on a graduated work plan by Dr Van Maanen who had formed that view with the full knowledge of her medical circumstances.
- [17]It is plain on the face of the decision that the Commissioner took into account the evidence that Dr Van Maanen had given.
Ground 1(b)
The Commission erred in finding that Ms Salm had made “full, frank, and honest disclosures” regarding her diagnosis with major depression in May 2013 to Dr Warlow, a consultant psychiatrist.
- [18]It is asserted that this error can be found in [205]. It cannot. Nowhere in his reasons does the Commissioner make a finding that Ms Salm had made “full, frank, and honest disclosures regarding her diagnosis with major depression”. This is an example of the problems which occur when a party, contrary to the Rules, combines and confuses the grounds of appeal with submissions in support of those grounds and the advocacy which is involved in arguing a point.
- [19]In the written submissions on this ground, the appellant goes further and refers to an “apparent finding” made by the Commission that Ms Salm had disclosed her previous psychiatric history to Dr Warlow and that such a finding is wrong. No effort is made by the appellant to identify where this “apparent finding” can be found. There is a further reference to [205] of the reasons but, as occurs far too often in the appellant’s case, it has confused the recitation or summarising of evidence with findings made by the Commission. In any event, in the evidence that was given by Dr Warlow about Ms Salm and her pre-existing history of depression he said:
“I got quite a reasonable chronological history of what was happening from her over that period of time and … while she didn’t mention some degree of psychological contact, as was evident in the materials, once I opened it up to her, she was very open about that and there wasn’t a sense of intentionally hiding that …”[4]
- [20]Later, in evidence, Dr Warlow said:
“In other words my conclusion of that was that she was not intentionally being dishonest. She was just overtaken by all her anxiety, one of which was the whole thing of actually having to come for such an interview.
…
It’s very easy to see if someone’s defensive compared to open. If someone is open when you suggest something to them they – they would quite often, as you say, that’s absolutely right or whatever. And where someone who’s defensive they – they would actually be – their affect would change, they would become more resistant to opening and more argumentative. It’s – it’s not a hard thing to observe.”[5]
Ground 1(c)
The Commission erred in finding that Ms Salm commenced her graduated return to work without understanding what the return to work plan entailed. The Commission erred in finding that there were a number of issues which necessitated a revision of that plan.
- [21]The errors are said to occur in [207]. In that paragraph, the Commissioner appears to have accepted that Ms Salm “would return to work on a graduated plan without an understanding of what the plan entailed except that there would be a requirement to follow medical advice”. Further, the Commissioner appears to have found that: “there were a number of issues following her return to work which necessitated a revised return to work plan…”
- [22]The issue between the parties with respect to the first alleged error rests upon identification of the graduated return to work plan. The appellant appears to regard exhibit 3 as constituting the plan. Exhibit 3 is a document from Dr Van Maanen in which she says that she had discussed the return to work program with Ms Salm which is detailed in the three page form attached to Dr Van Maanen’s letter. The respondent identifies another document as forming part of the plan – exhibit 8. It is an 18 page document headed “Workplace Rehabilitation” and is of a generic nature but applies to these circumstances. In other words, the return to work plan appears to be constituted by two documents. One is of general application to persons undergoing such a return to work process and the other, shorter document, particularly applies to the facts for Ms Salm.
- [23]Ms Salm’s evidence was that she understood her obligations under the plan to be that she was required to follow the doctor’s advice and to be instructed by Mr Brady in terms of suitable duties. She gave this evidence:
“Did you have any discussions with Mr Brady on that day [the date of her return] about your return to work plan, how it might be implemented?--- No.
How it might be supervised?--- No.
What duties that would be expected that you would be performing?--- No.”[6]
- [24]A reading of exhibit 5 discloses that, in addition to the matters which are set out in exhibit 3, there were considerable areas relating to the funding of assistance and the restrictions on that funding which were not discussed with Ms Salm. It was open, then, for the Commissioner to find as it is alleged he did. Whether that finding has any great influence on the determination of the relevant issue was not considered in detail by the appellant.
- [25]The other matter alleged to be in error is that there was only one issue which necessitated a revision of her plan. In the application to appeal, support for the assertion that there was only one issue which encompassed psychiatric and psychological issues is said to be found in the evidence of Dr Stowell. The evidence given by Dr Stowell and, the evidence given at T 3-45 being the page relied upon by the appellant, demonstrates that there was more than one issue. Dr Stowell refers to: Ms Salm having difficulty coping with the extra work, the need to avoid placing her with any children whose behaviour is threatening, the need to avoid her having to lift anything that weighed more than five kilograms and, generally, the need to avoid her having to physically restrain children at any time or be subject to any of their feisty behaviour. Dr Stowell said that that meant avoiding her having to move suddenly to avoid conflict. In other words, the matters described by Dr Stowell related to the physical requirements of Ms Salm’s employment. That was sufficient evidence for the Commissioner to make the statement he did.
Ground 1(d)
The Commission erred in finding that Ms Salm completed the final semester of the 2013 school year without any obvious impact on her mental health.
- [26]This is a difficult ground of appeal to understand. The reference complained about is contained in [208] of the reasons where the Commissioner said:
“Salm despite experiencing some difficulties initially with the return to work plan completed the final semester of the 2013 school year without any obvious impact upon her mental health.”
- [27]That finding, it is said, was not open on the evidence. The evidence the appellant relies on for that is the general practitioner’s file notes (exhibit 28), a letter from Dr Stowell (exhibit 8) and the evidence at T 3-45 to which I have already referred.
- [28]Exhibit 28 is the complete record of the examinations conducted by Dr Stowell from May 2012 until August 2014.
- [29]The appellant relies upon entries in exhibit 28 on page 11 where notes in summary form have been made by Dr Stowell. Dr Stowell was called and cross-examined but was not taken to these notes and asked for their meaning. The notes relied upon by the appellant read:
“waking at night now worrying re these kiids (sic)
diagnosed as depressed in post op period - on Cipramil
subject to crying as (now)
seeing psychologist at Kim Walters at Wesley
wants to slow return to work”.
- [30]In the absence of an explanation for the meaning of those notes, it would be wrong to regard them as being evidence of there having been some impact on Ms Salm’s mental health.
Ground 1(e)
The Commission erred in finding that Ms Salm’s injury arose out of or in the course of her employment. No reasons were given as to why the evidence of Dr Varghese was not preferred or why the evidence of the medical witnesses called on behalf of the respondent was preferred.
- [31]This part of the consideration of the case can be found in [201]-[209]. There was evidence upon which the Commissioner could base his finding that the injury was work related. That evidence is set out in paragraphs [212]-[214]. The real complaint here is that Dr Varghese’s evidence was not accepted and that insufficient reasons were provided for that evidence not being accepted. The complaint that the reasons were inadequate is contained in a number of the grounds of appeal. It is appropriate, then, that the question of what constitutes adequate reasons is considered at this point. This matter was given close attention in Drew v Makita (Australia) Pty Ltd[7] where Muir JA (with whom Holmes JA and Daubney J agreed) said:
“[58] The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with ‘a justifiable sense of grievance’ through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide ‘the foundation for the acceptability of the decision by the parties and the public’ and to further ‘judicial accountability’.
[59] The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and ‘the function to be served by the giving of reasons’. For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:
‘... And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law ... by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.’
[60] McHugh JA’s view was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but ‘ ... it is necessary that the essential ground or grounds upon which the decision rests should be articulated’.
[61] In Strbak v Newton, Samuels JA said:
‘... What is necessary, it seems to me, is a basic explanation of fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.’
[62] Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v Wraith, said that the decision maker:
‘... should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions.’
[63] Meagher JA in Beale v Government Insurance Office of NSW stated these propositions:
‘... there are three fundamental elements of a statement of reasons which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.’
[64] Whilst, in my respectful opinion, it would be inconsistent with authority to apply the three ‘fundamental elements’ rigidly, and I do not understand his Honour to be suggesting otherwise, they provide useful guidance for a determination of the sufficiency of reasons in the general run of cases.
[65] The following remarks of Henry LJ in Flannery v Halifax Estate Agencies Ltd relating to expert evidence were referred to with approval in the reasons of Ipp JA in Wiki v Atlantis Relocations (NSW) Pty Ltd:
‘It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible ... But with expert evidence, it should usually be possible to be more explicit in giving reasons: see Bingham LJ in Eckersley v Binnie (1988) 18 ConLR 1 at 77-78:
‘In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ...’’
And:
‘… [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other ...’.
These observations are also apposite, particularly in relation to the appellant’s contribution claim.” (emphasis added)
- [32]The analysis undertaken by the Commissioner under this heading was one in which he considered the relevant evidence and found that the evidence “overall” supported a finding of the kind which he made. That level of examination is insufficient in this case. There was an obvious and significant difference in the level of disclosure by Ms Salm to the various experts. In this case the dispute did involve something in the nature of an intellectual exchange, with reasons and analysis advanced by the psychiatrists, and so the Commissioner had to enter into the issues canvassed before him and explain why he preferred one case over the other. Dr Varghese’s evidence had to be dealt with and there had to be reasons given for not accepting it. They were not given. This was an error which affected the whole of the decision.
Ground 1(f)
The Commission erred in relying upon the expert opinion of Dr Reid.
- [33]This is, in part, a repeat of the preceding ground of appeal because Dr Reid’s evidence was part of the evidence considered by the Commissioner when deciding the issue contrary to the opinion of Dr Varghese.
- [34]In this ground, the appellant only refers to the opinion of Dr Reid and Dr Varghese. Yet in its written submissions, reference appears to be made to the opinion of Dr Warlow and what Ms Salm said to him. This is another example of the poorly drawn and confused manner in which this appeal has been prosecuted. I will confine my reasons to the ground of appeal in the application to appeal.
- [35]The appellant says that Ms Salm was dishonest in her non-disclosure to Dr Reid, in particular, that she had no material prior medical history when she had suffered from depression for which she was being medicated. This was the subject of cross-examination of Dr Reid. She was told by Ms Salm that the psychologist that she saw at the Breast Cancer Association did not diagnose her with a mental health condition. In her report, Dr Reid said:
“She reported that she has not experienced any previous mental health conditions. However, as I did not see Mrs Salm prior to the return to work process, information about her mental health prior to the return to work process and after her breast cancer treatment could be better verified by the psychologist that Mrs Salm saw at the Australian Breast Cancer Association.”
- [36]In answer to a question about whether she was at a disadvantage in seeing Ms Salm after the event as compared with the psychologist who had seen her previously, Dr Reid agreed and told the Commission that she had spoken to the previous psychologist who had verified that Ms Salm has not met the criteria for diagnosis when she saw her.[8]
- [37]Dr Reid’s report was criticised, with some reason, on the basis that, not knowing of the previous depressive condition suffered by Ms Salm, she gave an opinion that Ms Salm’s condition was not an aggravation of a pre-existing condition. She said it “appear[ed] to have been precipitated and perpetuated by events specific to the management of the gradual return to work process.” Dr Reid, though, did qualify that opinion as I have referred to above.
- [38]The issue with respect to this ground is one that must be viewed in light of the ultimate question to be answered by the Commission, that is, whether her employment was the major significant contributing factor to her injury.
- [39]The failure of Ms Salm to properly disclose her previous condition at the time of examination was considered by the Commissioner and he accepted that she had not disclosed the mental health issues that had arisen following her operations. This was an important issue which appears to have been given insufficient weight in the Commissioner’s reasons. It has also led to an insufficiently explained acceptance of Dr Reid’s evidence. This was an error.
Ground 1(g)
The Commission erred in finding that Ms Salm “came good” and provided her past history of mental illness to Dr Warlow.
- [40]In [215] of the reasons, the Commissioner said:
“In the case of her interaction with Dr Warlow it is acknowledged there was a reluctance to provide details of her past history but she later ‘came good’ at the back end of that process and in his view had not been ‘intentionally hiding’ that information.”
- [41]This ground is very similar to the ground expressed in Ground 1(b). The finding by the Commissioner is consistent with the evidence given by Dr Warlow. In his report (exhibit 29), he said, at page 12:
“She was highly circumstantial during the interview and had significant problems with remembering dates. If not presented with a degree of gentle containment, the interview would have taken much longer than it did (which was over one hour). Otherwise she was able to focus on matters at hand. While she did not mention about prior psychological contact (evident in the material) she was very open about it when it was discussed near the end of the interview, and there was not a sense that she was intentionally hiding that.”
- [42]
“… How can you – how can you not mention prior psychological contact and still be very open about it? That’s just a non-sequitur, isn’t it?--- No, it’s not.
That simply cannot follow?--- I mean, I can hear your point but---
It’s a good point, isn’t it?--- It has some merit to it. I think the other side is – in fact, her whole focus, as I tried to highlight particularly on the last part of that section on page 12, was that – her major concern was about the school. She was – that that was – that was her focus, that was a thing which had injured her the most and she was – that was the thing that preoccupied her.”
- [43]In re-examination, Dr Warlow was asked about prompting Ms Salm and her responding to his questions. He said:[10]
“I having read the material prior I raised it to her. In other words my conclusion of that was that she was not intentionally being dishonest. She was just overtaken by all her anxiety, one of which was the whole thing of actually having to come for such an interview.
…
She was – she was very open. And I was able to get all the information I needed which was aligned with the material I had at hand. Again, in a non-defensive way which – which made me think that, you know, she was – she was – her – her capacity to remember things and also time – would have been impaired in the context of the [indistinct] mood at the time of the interview.
And at the end of that paragraph you say:
there was not a sense that she was intentionally hiding that.
?---Yeah.
What led you to make that comment in your report?--- It’s very easy to see if someone’s defensive compared to open. If someone is open when you suggest something to them they – they would quite often, as you say, that’s absolutely right or whatever. And where someone who’s defensive they – they would actually be – their affect would change, they would become more resistant to opening and more argumentative. It’s – it’s not a hard thing to observe.”
- [44]In his report (Ex 29) Dr Warlow noted:
“While initially, she denied any psychiatric past history, at the end of the interview, she did respond in a non-defensive way to the fact that she had seen a psychologist in 2012 for about 6 times in the context of a school fire where she had taken about one week off work … While the symptoms were fairly similar in terms of anxiety and possible traumatic stress, with a loss of confidence, she did not have so much social anxiety as she had before.
…
In terms of previous issues:
In 2006, she was noted to have psychological problems including anxiety, particularly in relation to problems with the ex-husband…
She had a stress reaction in early 2012 requiring psychological assistance in the context of a school fire response. She improved with assistance.
At the end of 2012 she was diagnosed with a breast lesion
It was noted that she was on Cipramil 2/5/2013: noted to be less resilient with issues, being stressed with her daughter and was happy to trial antidepressant medication. Cipramil, 20 mg was prescribed in May 2013, in association with difficulties with her daughter.
…
Thus, in terms of matters of consistency, it appeared that largely speaking there was a degree of consistency between her report and the material provided. However it was noted that she was on citalopram from May 2013, whereas she said that she was on it in February 2014. Indeed, she said that prior to going to school at the end of 2013, after her recovery from her breast operation, that she was going very well as noted above.”
- [45]These were all matters which were open to be relied upon by the Commissioner in forming the view he did.
Ground 1(h)
The Commission erred in finding that Ms Salm could not consult with Mr Brady.
- [46]The appellant refers to [225] of the reasons. The appellant has misunderstood what the Commissioner has said in this paragraph. He did not find that Ms Salm could not consult with Mr Brady.Rather he found that because the return to work coordinator (Ms Rigby) had assigned her responsibility to Mr Brady, there was no capacity, when making a complaint, to engage with the supervisor and the coordinator separately as Mr Brady was filling both roles.
- [47]In any event, this argument by the appellant overlooks what occurred between Ms Salm and Mr Brady on 24 February 2014 and the telephone conversation which was held with Ms Rigby about what occurred on that date.
Ground 1(i)
The Commission erred in finding that Mr Brady failed to schedule specific meetings with Ms Salm.
- [48]This was a finding made in [226]. The appellant contends that there was no requirement that that be done. It is implicit in the policy document (exhibit 5) that the return to work coordinator is required to monitor and review the process and that responsibility was acknowledged by the appellant in its reply submissions made to the Commission.
- [49]Mr Brady admitted that he did not put any formal steps in place to ensure that reviews occurred. This was a finding open to be made by the Commissioner.
Ground 1(j)
The Commission erred in finding Mr Brady had acted harshly towards Ms Salm during a telephone call on 24 February 2014.
- [50]This concerned evidence given by Ms Salm as to the content of the telephone conversation on 24 February and that, in particular, Mr Brady had departed from his previous “modus operandi” and told Ms Salm that she had to “get up to speed” and that it was likely her funding for the return to work would cease.
- [51]The Commissioner has explicitly preferred the evidence of Ms Salm to Mr Brady as to the contents of this telephone conversation and that it was in complete contrast to the manner in which Mr Brady had dealt with her to that point.
- [52]It is reasonably clear that, when determining the contents of a conversation between two people, and in the absence of any other material, a decision maker will frequently have to rely on impressions gained during the receipt of evidence. In this case, the Commissioner noted that Ms Salm’s evidence was supported by her actions following the end of that telephone call where, for the first time, she initiated contact with Ms Rigby to express her concerns. The appellant points to what it says are contemporaneous written records. The first is exhibit 14. It is a typewritten document which was described by Mr Brady as a “planning document”.[11] Nowhere does he say that it was an accurate summary of what occurred during the conversation. Mr Brady did, though, give evidence that Ms Salm did not raise any objections to what he proposed and what they discussed, nor did she make any complaints. He recalled her words as:
“I’m happy with this, Derek.”[12]
- [53]Exhibit 23 is a document consisting of workplace rehabilitation case notes made by Ms Rigby. It records a telephone call between Ms Salm and Ms Rigby in which Ms Rigby recalls that Ms Salm said, among other things, that she wanted to clarify departmental requirements, that her return to work program was not being followed, that she had met with Mr Brady and that he wanted her to teach, and that she was seeing her doctors at 2.30 pm regarding what she had discussed with Mr Brady that day. Parts of the notes are consistent with Ms Salm’s evidence, in particular, the note that she had been advised by Mr Brady that there was “limited supernumerary” which was a reference to funding.
- [54]The appellant also relies upon exhibit 28 which are the clinical notes kept by Ms Salm’s general practitioners and in particular the note that Ms Salm had said that she was suffering from more stress from work. It was observed that she was “still shaky and tearful”. Ms Salm apparently told the doctor that “they press my buttons” and that “they want her to speed up her return to work”. The entries in exhibits 23 and 28 are reasonably able to be read as not inconsistent with Ms Salm’s evidence.
- [55]The Commissioner was aware of the contest about Ms Salm’s credibility. The finding he made was open on the evidence.
Ground 1(k)
The Commission erred in finding that there were “dramatic changes” to the return to work plan and that there was a proposed reduction in her “employment status”.
- [56]These errors are said to be found in [248]:
“I do not accept the dramatic changes to Salm’s return to work plan and proposed reduction in her employment status, put in a telephone call to Salm on a non-work day without one ‘iota’ of any previous mention of such a change in the circumstances was reasonable management action taken in a reasonable way and therefore the operation of s 32(5)(a) is not enlivened.”
- [57]The gist of the call, and the part which caused Ms Salm considerable concern, was with respect to the proposal to change an aspect of the return to work plan by deleting the additional staffing allocations at the end of the first term in 2014. The respondent submits, and I accept, that the supernumerary was a crucial part of the return to work plan and an important part of the discussions that had occurred between Ms Rigby and Mr Brady. Those discussions led to his telephone conversation with Ms Salm on 24 February. There was also a proposal that there be a change in Ms Salm’s employment status from full time to part time.
- [58]The Commissioner notes that the reduction in employment status was “proposed” but it was a reasonable reading of the evidence that justified his applying the term “dramatic” to the changes discussed concerning the return to work plan.
Ground 1(l)
The Commission erred in making the finding in paragraph [216] that Ms Salm’s employment was the major significant contributing factor to the injury.
- [59]This is another expression of the ground advanced in other grounds of appeal. It is clear from a reading of all of the reasons given by the Commissioner that he formed the view that the injury suffered by Ms Salm was brought about as a result of the telephone conversation on 14 February. That telephone conversation was entirely concerned about her employment. This ground is nothing more than a re-hashing of earlier grounds of appeal.
Ground 1(m)
The Commission erred in law when it acted upon a wrong principle in assessing the management action engaged in by the appellant.
- [60]This is a reference to [232] of the reasons where the Commissioner says:
“I am satisfied that the conduct of Salm’s graduated return to work program was not necessarily compliant with accepted good practice particularly in the case of Brady who as Salm’s principal and supervisor had additionally assumed the important role as her return to work coordinator bringing with it a conflict of interest in the two roles that did not serve the situation well.”
- [61]The appellant says that the Commissioner wrongly used the test of whether or not the conduct was “compliant with accepted good practice”. While the Commissioner has referred to the appellant’s conduct in that way, he has not imposed that test in order to reach his conclusion with respect to the operation of s 32 of the Act. It is an observation made about the obvious lack of wisdom in Mr Brady filling two roles which was inconsistent with the manner in which the return to work program should be undertaken.
- [62]The Commissioner made it clear in his detailed examination of the evidence that it was the telephone conversation of 24 February which gave rise to the injury. He noted that Ms Salm decompensated following that call. A commissioner is not required to utter some kind of unchanging mantra in order to demonstrate that the requirements of the section have been observed. He did, in the event, find that the decompensation did not occur as a consequence of the dual role being filled by Mr Brady, nor as a consequence of the return to work arrangements, but as a direct result of the telephone conversation on 24 February.
Ground 1(n)
The Commission erred in finding that Ms Salm was a witness of credit.
- [63]This is a repetition of other grounds already advanced and rejected. The Commissioner set out why he accepted Ms Salm at [250]-[254]. They must, as has been emphasised above, be read in connection with the balance of the reasons.
Conclusion
- [64]The appellant has mobilised a series of repetitive and, in some cases, irrelevant objections. An appeal is not an opportunity for an appellant to re-argue the case below. There is, though, one ground of substance which has succeeded. The question of causation was a live issue at all times and required a decision to be made about the expert evidence. That decision was made but was not explained. That is an error which has affected the entire decision and requires that the appeal be allowed.
- [65]The appellant seeks an order which would have the result of disallowing the Regulator’s decision. This, though, is a case which has been decided on the basis of an absence of reasoning in a vital area rather than findings of actual error in the decision-making process. Part of the process of determining the part to be played by the opinions of the relevant experts will rest upon the assessment of the credibility of Ms Salm and the importance of any pre-existing condition. It is a decision which needs to be made by a person who has seen her and made that assessment. It is a matter which I have reluctantly concluded requires a rehearing.
- [66]The appeal is allowed. The decision is set aside and the matter is remitted to the Commission for rehearing.