Grasa v Roads & Maritime Services [2013] NSWWCCPD 30

Grasa v Roads & Maritime Services [2013] NSWWCCPD 30

Psychological injury; relevance and effect of consent orders; application of principles in Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648; failure to consider relevant medical evidence; findings based on information not in evidence; application of principles in Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419; alleged bullying and harassment; perception of real events; application of principles in State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286 and Attorney General’s Department v K [2010] NSWWCCPD 76

1. 
   misinterpreting the consent orders;
   
2. 
   finding that Mr Grasa had recovered from his original injury by 25 August 2011;
   
3. 
   considering the evidence from Mr Orme (psychologist qualified by the respondent);
   
4. 
   failing to base her findings on the evidence;
   
5. 
   failing to properly consider the evidence, and
   
6. 
   applying the incorrect legal test in determining whether isolation, harassment and bullying occurred at work on 12 September 2011.
   

1. 
   The consent orders provided for Mr Grasa to return to his pre-injury duties as a mechanic but at a different location. There was no concession that Mr Grasa was fit to resume his “previous employment” with everything that entailed and the Arbitrator erred in making that statement [20].
   
2. 
   The Arbitrator’s statement that the agreement for the return to work was “predicated” on the basis that Mr Grasa had suffered an Adjustment Disorder but was now fit to return to work was also incorrect. The respondent never conceded that Mr Grasa had suffered an Adjustment Disorder [21].
   
3. 
   The consent orders did not confirm that Mr Grasa had recovered from his “original injury”, but merely provided for a return to work at a different location. The acknowledgment in the consent orders that Mr Grasa had no other entitlement to weekly compensation up to 25 August 2011 was only relevant to his entitlements up to that date and, contrary to the Arbitrator’s statement, did not indicate a full recovery from his previous condition [22].
   
4. 
   Exactly what weight the Arbitrator placed on her finding that Mr Grasa had recovered from his original injury was unclear. However, as the case was based on an aggravation of a pre-existing condition, it was reasonable to conclude that it played some role in her final determination, because it would not have been possible to establish an aggravation injury if there was no pre-existing condition to aggravate. Therefore, if she erred in her understanding of the consent orders, as she did, and if that was a factor in her finding that Mr Grasa had recovered by 25 August 2011, it affected the outcome [23].
   

5. 
   Even if the consent orders provided support for the Arbitrator’s finding that Mr Grasa had recovered by 25 August 2011, which was not accepted, they did not support a finding that he was in the same condition on 12 September 2011. An issue estoppel only speaks at the date of the order made and only binds the parties as to the issues actually determined; it does not bind them on different issues, such as fitness at a later date (Dimovski) [33].
   
6. 
   The Arbitrator’s finding that Mr Grasa had recovered by 25 August 2011 was inconsistent with the weight of the evidence. Moreover, by determining that Mr Grasa had recovered by 25 August 2011, the Arbitrator determined an issue never argued by the respondent. Its case was that Mr Grasa had never suffered an injury at any time, not that he had recovered from a previous injury [34].
   
7. 
   The fact that Mr Grasa had been able to travel regularly to his (holiday) property and do the other things listed by the Arbitrator may well have been relevant to the level of his incapacity, but did not provide a sound basis for concluding that he had made a full recovery [39].
   
8. 
   It followed that the Arbitrator erred on this issue [40].
   

9. 
   After referring to the evidence from Mr Orme, psychologist, the Arbitrator said that she found it difficult to accept that Mr Grasa’s condition was an Adjustment Disorder because of its longevity and the apparent increase after leaving work. This conclusion was inconsistent with Mr Orme’s evidence (which was nothing like the passage attributed to him by the Arbitrator) and appeared to have been based (in part) on an incorrect reading of his evidence [45].
   

10. 
    There was no evidence that the symptoms of an Adjustment Disorder do not “persist for more than six months after the stressor has ended”, as the Arbitrator stated. To the extent that she used that statement as a reason for rejecting Mr Grasa’s medical case, she erred. Her approach was inconsistent with the principles in Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419 [55].
    
11. 
    The circumstances in which the Commission’s members may rely on general knowledge acquired in their capacity as members of the Commission are quite limited and do not extend to determining issues of “injury” and “causation” in the absence of appropriate expert evidence (Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181). In Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271, it was held that a judge of the Compensation Court was not entitled to rely upon general knowledge of back impairments derived from his experience in the Compensation Court to infer how, in the absence of any identified factual basis, a specialist formed his opinion so as to conclude the Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 test was satisfied [62].
    
12. 
    The Arbitrator erred in relying on her own opinion about Adjustment Disorders [63], and it was not open to her to reject Mr Grasa’s medical case because of her own opinion [67].
    
13. 
    The Arbitrator’s approach involved a breach of the rules of procedural fairness and, though she gave other reasons for rejecting Mr Grasa’s medical case, the Deputy President was not satisfied that her error made “no possible difference to the result” (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141) [69].
    

14. 
    Failing to refer to an important and supportive report, which was inconsistent with the medical opinion of the doctor, qualified by the employer (Dr Roberts) and had been referred to in submissions at the arbitration, was an error that demonstrated that the Arbitrator failed to properly consider the evidence and failed to exercise her statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311) [79].
    

15. 
    The Arbitrator seemed to have approached the events on 12 September 2011 as if it was necessary to determine who caused the obvious friction at work on that day. This followed from her statement that it was “difficult to find any incident which was not in some way provoked by Mr Grasa”. Even if that were so, and no finding on that issue was made on appeal, that would not have prevented a finding that employment was a substantial contributing factor to the injury alleged [87].
    
16. 
    The issue before the Arbitrator required an objective assessment of the evidence to determine if real events occurred (either in the course of or arising out of the employment) that Mr Grasa perceived as creating a hostile environment, even if his view of those events was not rational and reasonable. Employers take their employees as they find them (Chemler) [88].
    
17. 
    The Arbitrator’s conclusion that, though Mr Paulisson (Mr Grasa’s work colleague) did seem to stay out of Mr Grasa’s way, that did not “constitute isolation” appeared to have been made on the basis of some kind of objective test of isolation. The correct test is whether Mr Grasa perceived, on the basis of real events, that he had been isolated or treated unfairly. The fact that Mr Paulisson stayed out of his way and Mr Grasa had lunch on his own provided sound basis for Mr Grasa’s perception that he had been isolated [96].
    
18. 
    Other (contemporaneous) evidence strongly supported Mr Grasa’s complaints that (a number of) real events occurred at work on 12 September 2011 that he perceived as creating a hostile environment and were capable of supporting a finding that he received a psychological injury on that day [98].