Workers' Compensation and Injury Management Act 1981 s 5(1), s 5(4), s 5(5), s 18, s 21, sch 1

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Beer v Duracraft Pty Ltd [2004] WASCA 192

Compass Group (Australia) Pty Ltd v McGrath C25 - 2009

Gallin v Central West Coast College of TAFE [2006] CM - 21/2003

Health Department of WA v Prosser [2004] WASCA 83

Hood v Royal Perth Hospital (Unreported, WASCA, Library No 971658, 5 December 1997)

Pollock v Wellington (1996) 15 WAR 1

Wiegand v Comcare [2002] FCA 1464

1 This is an application for leave to appeal from a decision of the WorkCover WA Arbitration Service given on 9 December 2013 whereby the respondent's claim for compensation pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) was partially successful. An arbitrator ordered the payment of weekly payments for total incapacity for the closed period 16 August 2012 until 27 February 2013, together with statutory expenses reasonably incurred.

2 The arbitrator found that the respondent suffered a stress-related disease (the injury) in the course of her employment as a teacher at the Calista Primary School on or about 26 March 2012. He found that the injury resulted from two interactions between the respondent and the school principal, Mr Glen Edwards.

3 The respondent elected to take accrued leave rather than claim compensation between 26 March 2012 and 16 August 2012. She sought weekly payments on the basis of total incapacity from 16 August 2012 and ongoing. There was no alternative claim for partial incapacity at any time.

4 The appellant denied the respondent's claim on numerous grounds.

5 The respondent has been employed by the appellant as a permanent primary school teacher for many years. At all material times she was employed at Calista Primary School. She alleged that she was bullied, intimidated and harassed by Mr Edwards from her first day at that school. She contended that these incidents left her vulnerable to the injury.

6 The respondent contended that Mr Edwards spoke to her at great length and unfairly about her work performance and mental health during a meeting in his office on 23 March 2012.

7 She left the meeting in a distressed state, sought immediate medical attention from Rockingham Kwinana Hospital and reported the matter to her union. She returned to work on the next working day (26 March 2012). However, she felt sick and had to be taken to the doctor when she saw Mr Edwards in her vicinity (she did not speak to him). She did not return to work.

8 She was under the care of her general practitioner, Dr Wood, who did not issue a First Medical Certificate until 16 August 2012. The certificate certified total incapacity from 26 March to 6 July 2012 (when the respondent's sick leave certificates ran out). Further certificates were issued to cover subsequent periods.

9 The respondent also consulted a psychologist (Ms Foong) and a psychiatrist (Dr Sekhon).

10 She was seen by Dr Pearce, at the behest of Mr Edwards, in late April 2012.

11 She was reviewed by two psychiatrists for medico-legal purposes, namely Dr Tannenbaum and Dr Terace.

12 Steps were taken by the appellant in late 2012 to return the respondent to work at Calista Primary School and elsewhere, but to no avail.

13 Pursuant to s 18 of the Act, if an injury to a worker occurs, the employer shall, subject to the Act, be liable to pay compensation according to sch 1.

14 Relevantly, the definition of an injury includes the following (s 5(1)):

(c) A disease contracted by a worker in the course of the employment at or away from his place of employment and to which his employment was a contributing factor and contributed to a significant degree;

but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;

...

15 Section 5(4) provides the excluded matters for the definition of a stress-related disease:

(4) For purposes of the definition of injury, the matters are as follows -

(a) the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment; and

(b) the worker's not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and

(ii) a decision by the employer in relation to a matter,

16 A stress claim is compensable if it is caused by a worker's subjective reaction to objectively proven facts. It is not necessary for a worker to prove that his or her subjective perception of proven facts was reasonable. (See Wiegand v Comcare [2002] FCA 1464; Gallin v Central West Coast College of TAFE [2006] CM - 21/2003; Pedley v West Coast College of TAFE C21 - 2006 [26], [50] - [51]).

17 Pursuant to s 21, an employer is liable to pay 'weekly payments' (based upon an amount determined under sch 1 and known as 'weekly earnings') during any period of incapacity for work which results from an injury. In a case of total incapacity, weekly payments equate to the full amount of weekly earnings. However, only a portion of weekly earnings is payable in a case of partial incapacity, unless certain exceptions apply (which is not the case in this matter).

18 The concept of 'incapacity for work' connotes a worker's inability to earn a living in the labour market in which he or she was working before suffering the injury, or in which he or she could reasonably be expected to work, that is, one which is reasonably accessible taking into account matters personal to the worker. (See Ross v Corruption & Crime Commission C15 - 2008 [19]-[20]).

19 Thus, in this case, the onus lay on the respondent to prove, first, that she suffered a disease caused by her perception of proven facts and, second, that by reason of the disease she was totally incapacitated for work in the sense that she was wholly unfit to return to her employment as a primary school teacher in any capacity.

20 As I have said, the respondent did not claim partial incapacity but, if she had, it would have been necessary for her to prove the differential between her retained earning capacity (which she would have to prove) and weekly earnings to arrive at the amount of weekly payments (See Mitchell v Canal Rocks Beach Resort [2002] WASCA 331; Ross [8]).

21 The arbitrator summarized the issues to be determined in his reasons for decision (at [6]). These were:

(a) whether the events described by the respondent on 23 and 26 March 2012 occurred;

(b) if so, whether she sustained an injury, being a mental disease such as to fall within s 5(c) or s 5(d) of the Act;

(c) if so, whether her employment was a contributing factor to the contraction of the disease;

(d) if so, whether the employment contributed to a significant degree to the contraction of the disease;

(e) whether the disease wholly or predominantly arose from an excluded matter within s 5(4) of the Act and, if so, whether the relevant conduct of the appellant was harsh and unreasonable;

(f) whether the respondent failed to mitigate her loss and, if so, the consequence (if any) of that failure;

(g) whether the respondent is entitled to weekly payments of compensation for total incapacity and, if so, the amount;

(h) whether the respondent is entitled to payment of statutory expenses.

22 The arbitrator did not accept the respondent's evidence about any of the alleged stressors in her workplace prior to 23 March 2012, unless it was consistent with evidence adduced by the appellant. In particular, the arbitrator preferred the evidence of Mr Edwards in relation to a number of antecedents in which, according to the respondent, he had harassed and bullied her. It appears from the evidence (including histories provided to various doctors) that the respondent has a tendency to view relatively innocuous events in a histrionic way and thus exaggerated them in her evidence.

23 In the result, the arbitrator merely found ([30]) that 'the evidence establishes that the respondent was upset in the few days leading to the meeting on 23 March 2012'. It was common ground that prior to that date Mr Edwards had given her a letter referring to some parental complaints about her and she was seen by another teacher to be crying on 21 March 2012.

24 The arbitrator was unable to determine why the respondent was upset prior to the meeting on 23 March 2012 and opined that there may have been a number of causes. He found that there was nothing in the respondent's employment prior to that date which could support a stress-related claim for compensation.

25 I interpose that the fact that the respondent was upset, vulnerable and prone to histrionics prior to the meeting remained relevant in so far as her employer was obliged to take her as they found her.

26 The meeting on 23 March 2012 was predominantly about a parental complaint which had been made about the respondent in a letter to Mr Edwards. The parent complained that the respondent had said some startlingly florid and inappropriate things to her. Mr Edwards so was concerned that he referred the letter to the appellant's 'Standards and Integrity Division', which directed him to have the respondent seen by a doctor. Hence, he called her to the meeting on 23 March 2012.

27 The arbitrator found that Mr Edwards did not tell the respondent in advance what the meeting was going to be about. There was no formal agenda of any kind.

28 The meeting lasted for over an hour. Mr Edwards read the letter to the respondent and did most of the talking. The respondent said little.

1. I find Mr Edwards did not give [the respondent] an opportunity to read the letter before he read it out loud. I find he did not give her a proper or adequate opportunity to respond to [the letter's] allegations. Indeed, I find he took [the] allegations as fact from which he formed a judgment about [the respondent]. Having said that, I accept that he was aware that [the respondent] was upset ... His view was therefore not solely as a result of the [parent's] letter. Nonetheless, it was clearly a large part of his reason to refer the matter to Standards and Integrity, as he refers to the letter in his facsimile to the division.
2. ... He did not give her a copy of the letter until after the meeting. During the meeting, Mr Edwards told [the respondent] that he had referred the matter to the department's Standard and Integrity division. He did not tell her why or on what basis.
3. ... I find that Mr Edwards did say he was arranging [for the respondent] to be seen by a doctor. By inference, that referral must have been due to a judgment being made either by Mr Edwards or by the division that the [parent's] letter warranted such a referral, though again, why that is the case is not clearly set out.
4. In those circumstances, even if Mr Edwards did not specifically say he was referring [the respondent] to a psychiatrist, that [she] thought he said that is a reasonable conclusion and I find she did believe that is what he said.
5. ... Based also on the evidence of Mr Edwards, I accept the description of 'monologue' [to describe what Mr Edwards said to the respondent] is accurate.
6. Her evidence was that she left that meeting, deeply upset and humiliated. I accept that evidence. She had a clear recollection of the meeting, the contents of which were broadly corroborated by Mr Edwards.

30 The arbitrator concluded ([60] - [61], [67], [69]) that the meeting had been an 'ambush' and a 'surprise attack' (my emphasis) on the respondent because its purpose was not disclosed to her beforehand, she was given no prior notice of the allegations made by the parent and was not given an opportunity to prepare for, nor respond to, the allegations or the referral of the matter to the Standards and Integrity division.

31 He found that Mr Edwards 'pre-judged the situation, having formed an opinion that the parent's allegations about what was said had in fact occurred and were in themselves serious enough to warrant intervention'.

32 Based on the arbitrator's findings, it is quite clear that the meeting did amount to an ambush and that there was a lack of procedural fairness. The arbitrator later found ([150]) that in all the circumstances Mr Edwards' actions were harsh and unreasonable. It is difficult to argue with that contention.

33 The arbitrator proceeded to make a number of further findings.

34 First, he found ([91]) based on Dr Terace's and Dr Sekhon's reports, that the respondent suffered a psychiatric illness (ie, the injury) namely an Adjustment Disorder with mixed anxiety and depressed mood. He rejected Dr Wood's and Dr Tannenbaum's diagnosis of post-traumatic stress disorder.

35 Next, based on the evidence (in part) of Drs Terace and Sekhon, he found that the respondent's employment contributed to the injury and did so to a significant degree ([116] and [123]). In this respect, the arbitrator took into account the meeting on 23 March 2012, the brief encounter on 26 March 2012 and the respondent's need for immediate medical attention thereafter. I note, at this point, that the arbitrator was not persuaded by all of Dr Terace's reasons which, he found, predicated stressors (such as a fear of disciplinary action) which were not established by the evidence.

36 The arbitrator then found that the evidence did not establish any causal relevance between the injury and any excluded matters referred to in s 5(4) of the Act (or the respondent's expectation of the same). He found that no disciplinary action or similar matter was being contemplated by the appellant and that Mr Edwards' concerns (and those of the Standards and Integrity division) 'were primarily related to' the respondent's wellbeing and health ([131]). In this respect, the arbitrator found that there was no evidence that the respondent was at risk of losing any benefits and to suggest otherwise was 'merely speculation'. Again, in this respect, the arbitrator noted that Dr Terace had based his contrary opinion on unproven assumptions about excluded matters.

37 The arbitrator supported his findings in relation to causation by noting ([143]) that the relevant stressors were not confined to the content of the meeting on 23 March, but included the way in which the meeting was conducted. He said (at [144]):

It is clear that [the respondent] heard, what was effectively a monologue for an hour or so, as an attack on her abilities as a teacher and a person, that she had been judged and condemned in some way, but not an attack on her employment as such. There is no evidence that Mr Edwards then directed her to take leave. There is no evidence that Standards and Integrity directed Mr Edwards to take any industrial action. There is nothing therefore on a factual basis from which [the respondent] could have concluded she would be disciplined or in some way lose a benefit. That is not her evidence in any event. She heard this as an attack on her [as] a person, not against her employment as a teacher.

38 The arbitrator further held ([147]) that, even if the respondent expected an excluded matter such as discipline or loss of a benefit to occur, such was not the whole or predominant cause of the injury and thus the excluded matters were not enlivened.

39 In the light of these findings, the arbitrator found that it was not necessary to address the proviso to s 5(4), namely whether the appellant's actions were harsh and unreasonable, but he did so for completeness. He said ([150]) that he 'would have found that the department's action[s] were harsh and unreasonable'. He said that the fact that the meeting occurred as it did and in the manner it did 'could only have led to a worsening of [the respondent's] presumed lack of wellbeing'. He noted that Mr Edwards was aware that the respondent had been crying two days before the meeting and held that in all the circumstances what occurred (including the referral to Standards and Integrity and the referral to a doctor) was harsh and unreasonable.

40 The arbitrator then held that the respondent had not failed to mitigate her loss. The evidence about this concerned unsuccessful attempts which were made to have her resume work, first at Calista Primary School and then at Waikiki Primary School. The arbitrator found that the attempts to return her to Calista 'reinforced her concerns and led to an increase of symptoms' ([160]).

41 The arbitrator turned to quantum, namely whether the respondent was entitled to weekly payments for total incapacity and, if so, for what period.

42 The appellant contended that the evidence did not support a claim for total incapacity and contended that all three psychiatrists (Drs Sekhon, Terace and Tannenbaum) had certified that the respondent was fully fit to return to work.

43 The arbitrator firstly addressed the certificates of the respondent's general practitioner, Dr Wood, which purportedly certified total unfitness from 26 March 2012 until 14 May 2013. However, he found that it was 'difficult to give much weight to Dr Wood's certification' in part, I gather, because at times her reasons were not set out ([172]) and also because ([186]) the doctor relied on the rejected diagnosis of post-traumatic stress disorder.

44 The arbitrator considered the reports of Dr Pearce, a general practitioner in the service of the appellant. On 8 June 2012 Dr Pearce accepted that the respondent was unfit to resume work. As at 26 July 2012 he was of the opinion that she was fit to return on a trial basis, initially as a supernumerary, but at an alternative school to Calista Primary.

45 The arbitrator disagreed with the appellant's construction of Dr Sekhon's report (18 July 2012). He noted that Dr Sekhon considered that the respondent was fit to return to work, but also noted his opinion that a return to work at Calista Primary had 'a high risk of precipitating her symptoms'. The arbitrator construed Dr Sekhon to be stating that the respondent was only 'fit to return to work on a gradual and increasing basis' ([173]).

46 Dr Tannenbaum said on 4 December 2012 that he thought that the respondent's 'depression has progressed' since she was seen by Dr Terace in September. The arbitrator construed ([174]) Dr Tannenbaum to be saying that the respondent's symptoms of depression were 'more severe' compared to when she was seen by Dr Sekhon in July 2012 and Dr Terace in September.

47 He also quoted the following passage from Dr Tannenbaum's report of 4 December 2012:

I do not believe she has fully recovered and she still has persisting depressive symptoms in particular ... . However, I do believe that she should be able to return to work even now despite the persistence of her symptoms.

48 The arbitrator acknowledged ([175]) that this passage could be construed as certification of full fitness for work, but noted that Dr Tannenbaum later stated that the respondent 'would not be robust in a workplace without further treatment'. The arbitrator therefore held ([176]) that Dr Tannenbaum had not certified total fitness for work on 4 December 2012 because his certification of fitness was 'qualified'.

49 The arbitrator then turned to Dr Terace's reports of 25 September 2012 and 27 February 2013.

50 In the first report Dr Terace stated that it was 'arguable that the cause of [the respondent's] present condition is predominately her fears for work and economic future'. He went on to state that her condition was 'mild in severity' and did not 'prevent her from returning to work full-time'. He also stated that she was fit to participate in a graduated return to work program if required.

51 In his report of 27 February 2013 Dr Terace noted that Dr Tannenbaum had observed a worsening of symptoms in December 2012 (so he concurred with the arbitrator's construction of Dr Tannenbaum's report), but then noted that there had been significant improvements since then. He gave a number of examples. It suffices to say that the respondent presented to Dr Terace on this occasion in a cheerful and psychologically healthy manner. Dr Terace was in no doubt that she had fully recovered and was completely fit to return to work in any capacity.

52 The arbitrator analysed the evidence as follows (emphasis added):

1. Considering the evidence overall, I find [the respondent] to be totally unfit to work for the period 26 August 2012 to 27 February 2013 (the date of Dr Terace's report). At that stage, I find Dr Terace is clear [the respondent] has recovered. He supports that opinion by setting out the grounds of his opinion on a number of bases. There is no contrary evidence other than that of Dr Wood and possibly that of Dr Tannenbaum.
2. I prefer the evidence of Dr Terace over Dr Wood ... and this is an area within Dr Terace's expertise. I prefer his opinion as set out in the February 2013 report over that of Dr Tannenbaum as this is the most recent report. Some time has gone by since Dr Tannenbaum's report and to some extent ... Dr Tannenbaum's opinion is accorded less weight as it refers to a finding of PTSD.
3. Prior to that time [ie 27 February 2013] I'm satisfied that, considered overall, the evidence proves total incapacity, on the balance of probabilities. I've taken into account Dr Sekhon and Dr Tannenbaum's views and that of Dr Terace; when read together the reports evidence a person who is not yet fit for a return to work in that period. In that regard, I accept Dr Tannenbaum's report that talks of an increase in the symptoms of depression in December 2012.
4. I therefore find that for the period of 26 August 2012 to 27 February 2013, [the respondent] is entitled to weekly payments for total incapacity pursuant to the provisions of the Act.

53 Clearly, no one expert's opinion carried the day with the arbitrator. He rejected Dr Terace's evidence, and any other evidence for that matter, which suggested that the respondent was fully fit to return to work during the closed period and in particular rejected Dr Terace's report of 25 September 2012. He took into account Dr Tannenbaum's assessment (or assumption) of a worsening of symptoms of depression in the period leading up to 4 December 2012. But, he accepted Dr Terace's opinion as at 27 February 2013.

54 It is noteworthy that the arbitrator was not persuaded to reject the respondent's claim for total incapacity during the closed period notwithstanding that all three of the psychiatrists apparently believed that the respondent was fit to return to full time work. As I understand it, the arbitrator rejected that evidence and line of reasoning on the basis that there were qualifications or preconditions placed on the opinions which were not met and, as such, the respondent was for all practical purposes totally incapacitated. The appellant complains about this reasoning.

55 Leave to appeal can only be granted for grounds which involve a question of law. The making of a finding of ultimate fact that is unsupported by any evidence (including the drawing of an inference that is not supported by any evidence), or the making of a finding that there is no evidence of an ultimate fact when there is, involve questions of law. (See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Mason CJ, 355; Health Department of WA v Prosser [2004] WASCA 83; Wilson v Bentley Health Service C31 - 2007 [14]. The question of whether an interpretation of a medical report or opinion is reasonably open on, or justified by, the evidence is one of law. (See Hood v Royal Perth Hospital (Unreported, WASCA, Library No 971658, 5 December 1997) 9 and 12 (Wheeler J).)

56 There are five proposed grounds of appeal relating to liability, causation and quantum (total incapacity).

57 It is convenient to begin deal with ground 3, which states:

1. The Arbitrator erred in law in failing to apply the rule in Pollock v Wellington (1996) 15 WAR 1 to the medical evidence in order to assess its reliability having regard to his findings '... Mr Edwards made no threats, implied or otherwise, during any occurrences leading to the meeting on 23 March 2012'. The Arbitrator should have found that the factual foundation for the medical report has not established and accordingly placed no weight whatsoever on them.

58 This ground relates to the diagnosis of the injury (ie, liability).

59 The rule in Pollock v Wellington (1996) 15 WAR 1 provides (Anderson J (3)):

Before an expert medical opinion can be of any value, the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts. As with any other evidence, expert opinion must be comprehensible and the conclusion reached must be rationally based. A Court ought not to act on an opinion the basis for which is not explained by the witness expressing it.

60 It is well known, and hence accepted, that doctors sometimes receive and/or report subjective histories incorrectly or inaccurately. For the purposes of the rule in Pollock v Wellington the issue is whether a doctor's opinion was based on facts and assumptions that were established to the arbitrator's satisfaction. It is not necessary for there to be an exact correlation between the facts proven in evidence and the facts relied upon by the medical practitioner in forming his or her opinion. The arbitrator's responsibility is to examine any variation between the two and to assess whether any unproven assumption made, or any omission from the material relied upon, renders a medical opinion inadmissible or of no weight. (See Beer v Duracraft Pty Ltd [2004] WASCA 192 [80] McLure J; Compass Group (Australia) Pty Ltd v McGrath C25 - 2009 [23].)

61 Furthermore, as with any body of evidence, it is not 'all or nothing' with a witness and it is not necessary (or even desirable in many cases) for the trier of fact to alight upon one expert's evidence to the exclusion of the others. The arbitrator in this case was entitled to place such weight as he saw fit on any evidence and reject (or put to one side) other evidence or an opinion from the same witness (and other witnesses).

62 It is clear that all of the experts' opinions were, to some extent, informed by factual assumptions which differed from the arbitrator's findings. For instance, Dr Terace was much influenced by the incorrect assumption that one of the relevant stressors was the respondent's expectation of disciplinary action being taken against her. Further, all of the experts assumed that the history of antecedent harassment and victimisation which the respondent relied upon was more extensive than was found to be the case. Thus, it was certainly open to the appellant to contend that the expert opinions should not be relied upon as regards the making of a finding about diagnosis.

63 Mr Williams took me through the experts' reports and highlighted where factual assumptions relied on by the doctors departed from the facts as found by the arbitrator. However, the arbitrator did the same exercise and was mindful of the principle in Pollock v Wellington. It does not matter that his analysis did not completely accord with that of the appellant.

64 It was not necessary for there to be a close coincidence between the facts as found and the assumptions relied upon by the experts. All that was required was a sufficient correlation to justify reliance on the expert opinion. I am satisfied that the arbitrator was mindful of this requirement and, in any event, that the facts as found sufficiently vindicated the arbitrator's conclusions, both as to diagnosis and causation.

65 It is important to bear in mind that the respondent never contended that she was unfit for work by reason of any event antecedent to the meeting on 23 March 2012. The arbitrator made it abundantly clear that he attached decisive weight to the events of that day and on 26 March 2012. It is very difficult to argue against his reasoning, namely that the respondent was vulnerable, but fit for work until she was obliged to submit to an unfair and highly stressful attack on her as a professional and a person.

66 Ground 3 is arguable and leave should be granted, but it should be dismissed.

67 Grounds 4 and 5 can be dealt with together. They are as follows:

1. The Arbitrator erred in law by misconstruing the medical opinions of Drs Sekhon, Tannenbaum and Terace in finding that they supported that the Respondent was totally unfit for work for the period 26 August 2012 to 27 February 2013 when that finding of total incapacity was not open to the Arbitrator on those opinions.
2. The Arbitrator erred in law by allowing the Respondent's claim for total incapacity weekly payments and thereby ignoring the principals (sic) of law as expressed in Westralian Farmer's Cooperative Limited v Bunce (Unreported, WASC, Library No 7691, 31 May 1989), Mitchell v Canal Rocks Beach Resort [2002] WASCA 331, McGinnis v West Australian Forrest Industries Pty Ltd (Unreported, CM - 138/00, Cockram PG. 9 February 2001) and Royal Perth Hospital v Morris [2012] WADC 82. The Arbitrator should have found that the respondent had not discharged the evidential burden and dismissed the claim for weekly payments.

68 These grounds relate to quantum (total incapacity) and contend that the arbitrator erred in law by making findings which were not open on the evidence. Indeed, it is contended that the evidence was all to the opposite effect, namely that the respondent was fully fit for work. There is some force in this contention.

69 For a start, the respondent gave absolutely no evidence herself in the arbitration about her symptoms during the closed period. She adduced two statements of evidence, but neither of them entered into this area. It would seem that she relied on the histories that she gave to the doctors who saw her during the closed period. In other words, she relied upon secondary evidence. No objection was taken in the arbitration, but the practice must be deprecated, as has been done in the past.

70 Mr Williams was critical of the reasons for decision in so far as the arbitrator said that he relied on the evidence 'overall', or the reports when 'read together'. There is merit in that criticism insofar as the reports do not all and entirely support the arbitrator's finding, if that is what the arbitrator meant by 'overall' or 'read together'. But, did the arbitrator mean something else when he said 'overall' and 'read together' and, if so, what did he mean?

71 Firstly, it must be noted that the word 'overall' was used on both occasions ([189] and [191]) in relation to 'the evidence'. So, the arbitrator was not just referring to the expert reports. In that context he said 'read together'.

72 Next, it seems to me that the arbitrator meant that there was something to be said for the views of all the experts, but no one expert was accepted in preference to the others in relation to the closed period.

73 I construe the arbitrator to have concluded that Dr Terace's unequivocal certification of full fitness for work on 25 September 2012 must be read subject to the qualified opinions or concerns of Dr Sekhon (18 July 2012) and Dr Tannenbaum (4 December 2012). Dr Sekhon wrote of a possible need for a graduated and managed return to work and in particular was concerned that a return to Calista Primary School was contra-indicated. Yet that is exactly what the appellant sought to do. The arbitrator found that the respondent's symptoms worsened. Dr Tannenbaum was concerned about the respondent's depressive symptoms in early December and pointed to something of a relapse having occurred. He was concerned that the respondent might not be 'robust in a workplace without further treatment'.

74 It is not the law that a worker who is fit to return to work with qualifications or conditions is fit to return to work. All the circumstances must be considered, including the subjective vicissitudes of the return to work process. The arbitrator addressed the vicissitudes in his reasons (see [160] for example) and rejected a contention that the respondent had failed to mitigate her loss. In my view, his findings in relation to total incapacity were informed accordingly, hence his use of the word 'overall'. It must be remembered that the arbitrator was dealing with a stress-related claim and any certification or finding as to the respondent's fitness to return to work needed to take into account the prevalence or otherwise of relevant stressors in the workplace, including Calista Primary School.

75 Having regard to these matters, I am satisfied that it was open to the arbitrator to find that the respondent was totally incapacitated during the closed period.

76 Mr Williams was critical of the arbitrator's construction of Dr Tannenbaum's report in so far as he treated it as reporting an increase or persistence of symptoms. In Dr Tannenbaum's vocabulary the word 'progressed' did not necessarily mean 'worsened' but meant 'changed'. Dr Tannenbaum used the word more than once in the report. At AB 486 he said (emphasis added):

I refer to the report of her psychologist and it appears that her symptomology has developed and progressed from anxiety symptoms through to depression and symptoms of post-traumatic stress disorder since June or July.

77 Remembering that his diagnosis was post-traumatic stress disorder with depressive symptoms, he is to be taken to have being saying in his report that the depressive symptoms were more to the fore then had previously been the case. That is sufficient in my opinion to justify the interpretation which the arbitrator placed on the report, namely there had been something of a relapse in the respondent's depressive symptoms between September and December 2012.

78 In considering causation the arbitrator took into account ([180]) the respondent's concerns about her financial circumstances. I accept Mr Williams' submission that this was not a relevant consideration. As a general rule, purely economic considerations are not to be taken into account (see Ross [21] - [23]). However, I am not satisfied that this error vitiated the arbitrator's decision. There were other relevant stressors during the closed period such as the respondent's legitimate concerns about the return to work programme, and there is no doubt that these were causally material.

79 In conclusion, grounds 4 and 5 are arguable and leave to appeal should be granted. However, notwithstanding the short-comings in the arbitrator's expression, it is possible to discern both the nature of the reasons and the evidence to support them. Further, it was not necessary for the arbitrator to accept all of any particular expert's evidence. He was entitled to use any expert evidence as he saw fit if it was relevant and helpful, even if it was obtained from more than one source.

80 I am not satisfied that the arbitrator erred. Accordingly, grounds 4 and 5 fail.

81 Grounds 1 and 2 may be dealt with together. They provide as follows:

1. The Arbitrator erred in fact and law in failing to consider and make findings of fact on the respondent's credibility as a witness and failed to consider and make a finding in circumstances where the Applicant submitted that the Respondent 'presented as an untruthful, evasive and argumentative witness who contradicted herself in a number of significant and material aspects for evidence ... .
2. The Arbitrator erred in law in failing to consider and make findings of fact on whether the available evidence supported an inference that the Respondent's stress arose wholly or predominately from the Respondent's expectation and excluded matter mention in s 5(4) of [Act].

82 In my opinion there is no merit in either of these grounds of appeal.

83 As to ground 1, the arbitrator considered and made findings of fact in relation to the respondent's credibility as a witness. In fact, he formed an adverse opinion. The ground of appeal simply complains that the arbitrator declined to use that finding to reject the claim as a whole. That would have been an impermissible short-cut, and an error of law, notwithstanding the pejoratives in the appellant's submission.

84 The difficulty from the appellant's point of view is that the arbitrator's unfavourable findings in relation to the respondent's credibility were not fatal to her claim, which succeeded because of all the evidence and uncontested facts.

86 There is no merit in ground 2 either. The arbitrator carefully considered whether the respondent's stress arose wholly or predominantly from her expectation of an excluded matter and made all necessary findings.

87 In my opinion grounds 3, 4 and 5 are arguable and leave to appeal should be granted. However, the appeal should be dismissed.