Citation : DEPARTMENT OF EDUCATION -v- AZMITIA [2014] WADC 85

Workers' compensation - Application under the Workers' Compensation and Injury Management Act 1981 (WA) for leave to appeal against a judgment, order or determination in proceedings in the District Court - Arbitral proceedings at first instance - Whether the arbitrator's finding that the respondent was totally incapacitated for work during a relevant period was open on the evidence and involved an appellable error - Whether expert evidence inadmissible because crucial facts upon which the opinions were based had not been proved

Administrative Appeals Tribunal Act 1975 (Cth), s 33

District Court of Western Australia Act 1969 (WA), s 79

State Administrative Tribunal Act 2004 (WA), s 32

Workers' Compensation and Injury Management Act 1981 (WA), pt XI div 4, s 3, s 5, s 18, s 21, s 56, s 247, s 254, sch 1

Workers' Compensation and Injury Management Arbitration Rules 2011 (WA), r 58

Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17

Beer v Duracraft Pty Ltd [2004] WASCA 192

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250

Casey v Repatriation Commission (1995) 60 FCR 510

Catholic Education Office of WA v Granitto [2012] WASCA 266

Department of Education v Azmitia [2014] WADC 85

Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611

Mitchell v Canal Rocks Beach Resort [2002] WASCA 331

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Pollock v Wellington (1996) 15 WAR 1

Secretary of the Department of Security v Jordan (1998) 83 FCR 34

Thompson v Armstrong & Royse Pty Ltd [1950] HCA 46; (1950) 81 CLR 585

2 MAZZA JA: At all material times, the appellant, the Department of Education, employed the respondent, Ms Azmitia, on a full-time basis as a teacher at Calista Primary School (Calista). On or about 26 March 2012, the respondent allegedly suffered a stress-related injury in the course of her employment. The respondent left work that day and took accrued leave between 26 March 2012 and 16 August 2012.

3 By application dated 20 August 2012, the respondent sought weekly payments of workers' compensation and statutory expenses on the basis of total incapacity, from 16 August 2012, pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) (green AB 175 - 176). She made no alternative claim for partial incapacity. This application was declined by the appellant.

4 On 12 December 2012, the respondent applied for arbitration of the dispute (blue AB 57 - 62). The arbitration was heard by Mr G Rutherford (the arbitrator) on 14 to 17 May 2013. On 9 December 2013, the arbitrator ordered the appellant to pay to the respondent weekly payments for total incapacity for the closed period of 26 August 2012 until 27 February 2013 (the closed period), together with statutory expenses. The arbitrator published written reasons for the making of these orders (blue AB 25 - 56). The appellant has not yet made any weekly payments to the respondent. The appellant's liability to the respondent is approximately $50,000 (appeal ts 3).

5 Pursuant to s 247 of the Act, the appellant applied to the District Court for leave to appeal against the arbitrator's decision on five grounds (blue AB 21 - 24). The application was heard by McCann DCJ who, on 20 June 2014, while granting leave on some of the grounds, dismissed the appeal: Department of Education v Azmitia [2014] WADC 85.

6 Pursuant to s 79 of the District Court of Western Australia Act 1969 (WA) (DCWA Act) and s 254 of the Act, the appellant now seeks leave to appeal to this court from the judgment of McCann DCJ. Any appeal to this court 'must relate to a question of law': s 254(a) of the Act. The application for leave to appeal and the appeal were heard together by this court.

7 The respondent has given notice to this court that she does not intend to take part in this appeal and will accept any order made by the court other than as to costs (white AB 2).

Relevant provisions of the Act with respect to injury and incapacity

8 Section 18 of the Act provides that an employer is liable to pay compensation in accordance with sch 1 of the Act 'if an injury to a worker occurs'. 'Injury' is defined in s 5 of the Act. Relevantly, pursuant to s 5(1), an injury includes:

(1) In this Act, unless the contrary intention appears:

...

injury means -

...

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

...

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;

9 Section 5(4) reads:

(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

(c) the worker's expectation of -

(i) a matter; or

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

10 The matters referred to in s 5(4)(a) and s 5(4)(b), read with the definition of injury in s 5(1), may relevantly be referred to as 'excluded matters' and, under s 5(4)(c), as an 'expectation of excluded matters'.

11 'Disease' is defined by s 5(1) to include any '... mental ailment, disorder ... whether of sudden or gradual development'.

12 Section 5(5) stipulates:

(5) In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account -

(a) the duration of the employment; and

(b) the nature of, and particular tasks involved in, the employment; and

(c) the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and

(d) the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and

(e) matters affecting the worker's health generally; and

(f) activities of the worker not related to the employment.

13 By s 21 of the Act, an employer must pay compensation from the date of 'incapacity' resulting from the injury. Thus, in order for a worker to obtain weekly compensation payments, it is necessary to establish incapacity as well as injury: Catholic Education Office of WA v Granitto [2012] WASCA 266 [21] (Murphy JA). The burden of proving incapacity lies on the worker: Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 [55] (Roberts-Smith J). A worker may be totally or partially incapacitated for work as a result of an injury. 'Incapacity' is not defined in the Act. A person is totally incapacitated for work when he or she is, by reason of injury, unable to work: see Thompson v Armstrong & Royse Pty Ltd [1950] HCA 46; (1950) 81 CLR 585, 613 (Fullagar J). The concept of partial incapacity for work is that of reduced capacity, by reason of injury, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work: Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171, 178 (Mason, Wilson, Deane & Dawson JJ) and Catholic Education Office v Granitto [22] (Murphy JA).

14 Subject to s 56 and subcl 7(3) of sch 1, when total incapacity for work results from an injury, a weekly payment during the incapacity equal to the weekly earnings of the worker, calculated and varied in accordance with sch 1 of the Act, is payable: subcl 7(1) of sch 1. Subject to s 56 and subcl 7(3) of sch 1, where partial incapacity for work results from an injury, only a portion of weekly earnings is payable, such payment to be calculated and varied in accordance with sch 1 of the Act: subcl 7(2) of sch 1.

The proceedings before the Arbitrator Arbitration hearings

15 A purpose of the Act is to make provision for the hearing and determination of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick: s 3(d).

16 The practice and procedure governing hearings and determinations by an arbitrator is contained in pt XI div 4. Relevantly, s 188(2) and s 188(3) of the Act provide:

...

(2) The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -

(a) is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and

(b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

(3) An arbitrator may inform himself on any matter as the arbitrator thinks fit.

17 Subject to certain exceptions, a 'decision' (as defined in s 5(1) of the Act) of an arbitrator is final and binding on the parties and is not subject to an appeal: s 217B(1). Similarly a decision of an arbitrator, or anything done under the Act in the process of coming to such a decision, is not amenable to judicial review: s 217B(2).

18 Arbitration hearings are subject to the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA). Rule 58 provides that, except with the leave of an arbitrator, any medical evidence of a medical practitioner must be given in writing, and that practitioner may not be called to give oral evidence at a hearing before an arbitrator.

19 This court was told by counsel for the appellant, a practitioner experienced in the area, that 'the common practice at the Conciliation and Arbitration Service is that it is very rare for medical practitioners to be called to give [oral] evidence' (appellant's supplementary submissions [11], filed 27 March 2015).

20 In the present case, the medical evidence before the arbitrator was in documentary form and no application was made by either party for leave to adduce oral evidence from any medical practitioner. Consequently, none of the medical practitioners were cross-examined with respect to any matter contained in the reports they provided.

21 The respondent was born on 15 November 1959 (green AB 156). She graduated as a teacher in El Salvador. She began teaching in Australia in 2001 (green AB 1 - 2).

22 The respondent made two written statements dated 4 December 2012 and 13 March 2013 which were tendered into evidence and marked as exhibits A1 and A2. In examination-in-chief, the respondent confirmed the truth of the statements (green AB 1).

23 In essence, the respondent said as follows. In January 2008, she commenced employment at Calista. The principal at that time was Mr Glen Edwards. By the time of her appointment, the respondent had been given permanency by the appellant.

24 The respondent alleged that, from the outset of her appointment at Calista, Mr Edwards was hostile towards her. She said that, when she met Mr Edwards for the first time, he said to her 'you know that I would have preferred someone else to be appointed instead of you' (green AB 156).

25 Between 2008 and 2011, the respondent claimed that she was subject to undue criticism from Mr Edwards and that she received limited support from him (green AB 156 - 158).

26 In term two of 2011, she said that Mr Edwards told her that she caused him 'nothing but grief' (green AB 158). In April 2011, he allegedly yelled at her for not having her performance management agreement written in time.

27 In August 2011, the respondent said that Mr Edwards told her to 'show some compassion' towards a student who was afraid of thunder (green AB 48, 159).

28 In October 2011, Mr Edwards announced to the school's staff that he would be retiring at the end of 2012. The respondent said that he looked at her and said words to the effect of 'I will do something that I want to do next year. As I will be retiring, I won't care about the consequences' (green AB 159).

29 In December 2011, the respondent said that, during a conversation she had with Mr Edwards in which she thanked him for allowing her to teach year two in 2012, he said 'what can I do, I have to give you a class don't I' (green AB 159).

30 On 16 March 2012, the respondent received a letter from Mr Edwards dated 13 March 2012 asking her to respond to complaints made about her by some of the students' parents (green AB 160).

31 On 19 March 2012, the respondent met with Mr Edwards and a parent, Ms D. At that meeting, the respondent was advised that Ms D's child was being moved to another class (green AB 160 - 161).

32 The respondent said that on 20 March 2012, she became upset as a result of a comment made by Mr Edwards concerning some students. Later that day, Mr Edwards approached her and, in what she described as an authoritarian manner, said 'you are not coping with your teaching duties. That is evident. Come to my office and tell me why you are upset' (green AB 161). Mr Edwards returned to the respondent's classroom and told her that he wanted to speak with her on 23 March 2012 'about serious matters that will give [the respondent] something to be upset about' (green AB 161 - 162). Mr Edwards did not give the respondent any indication as to what these 'serious matters' were.

33 Pivotal to the respondent's claim were the events of 23 and 26 March 2012. It is necessary to describe these events in some detail.

34 According to the respondent, she and Mr Edwards met in his office at 1.00 pm on 23 March 2012. No one else was present. She said that Mr Edwards' opening statement to her was 'I will be straight forward [sic], you are unfit to work, you are sick, you are insane' (green AB 162).

35 The respondent described how Mr Edwards used his hand as a pretend gun and aimed it at her forehead saying 'I will put the last bullet in you' (green AB 162). He went on to say 'I will refer you to the psychiatrist in the Department and he will declare you insane'. Mr Edwards proceeded to inform the respondent that he had called 'Standard[s] and Integrity'[1], and that he had been told to have the respondent examined by a doctor (green AB 162).

36 At this point in the meeting, Mr Edwards read aloud a letter of complaint concerning the respondent, allegedly written by Ms D. Up until that point, the respondent had neither seen the letter, nor was she aware of its contents. The gist of Ms D's letter was that the respondent had spoken to her about 'auras', and that she had said that Ms D's and Ms D's husband's 'angels' were fighting her (the respondent's) angels. Ms D further complained that the respondent had claimed to be 'white witch' and a Buddhist. The letter stated that the respondent had said that she would deny saying such things and, in effect, lie about what she had said to Ms D (arbitrator's reasons [42], blue AB 35).

37 The respondent said that she was 'speechless' and could not believe what Ms D had said about her (green AB 162 - 163).

38 According to the respondent, Mr Edwards made more allegations against her, including that she was not good at teaching children with special needs and that she did not comply with all aspects of the school's ethos (green AB 163 - 164).

39 The respondent said that Mr Edwards 'repeated issues over and over' and that 'his allegations were not making sense ...'. Eventually, Mr Edwards concluded the meeting at 2.20 pm, by which time the respondent 'felt sick' (green AB 164).

40 The respondent stated that she was confused and upset after the meeting and contacted her union. The following day, she experienced shortness of breath and chest pain. She was referred by a general practitioner to the Rockingham-Kwinana District Hospital where she was diagnosed with anxiety. She was discharged later that day (green AB 164).

41 On 26 March 2012, the respondent returned to work, but upon seeing (although not speaking to) Mr Edwards at about 8.40 am, the pain in her chest returned. The respondent called her union, who told her to see a doctor immediately. The deputy principal then drove her to see Dr Nichola Wood, a general practitioner, who certified her as being unfit for work (green AB 165, 183).

42 The respondent has not returned to her duties at Calista or at any other school. She initially exhausted her sick leave and long service leave entitlements. The respondent said that she was depressed, confused and could not stop thinking about the events that had taken place.

43 On 2 April 2012, she received a letter referring her to the Department of Education's psychiatrist. She said she felt 'totally destroyed' when she received it (green AB 165).

44 On 3 April 2012, the respondent saw Dr Wood again. The respondent said that she could not stop thinking about why Mr Edwards wanted her declared insane and why he had threatened her with a bullet. She said that she felt 'confused, sad, powerless and totally alone' (green AB 166).

45 On 19 April 2012, she saw Dr Wood. The respondent said that, at this point, she was 'anxious, depressed and fearful to go back to work' (green AB 166).

46 On 30 April 2012, the respondent saw Dr John Pearce, an occupational and rehabilitation physician, to whom she had been referred by the appellant. Upon receiving the referral letter to Dr Pearce, the respondent was afraid that he was going to declare her insane (green AB 167).

47 On 7 May 2012, she saw Dr Wood. At that time, the respondent thought that she would return to work in term three of 2012.

48 On 7 July 2012, the respondent saw Dr Pearce for a second time. Following this appointment, the respondent notified her union that she would return to work in term three of 2012, but was informed that she could not do so until she had been psychiatrically assessed (green AB 167).

49 On 16 July 2012 she saw Dr Raj Sekhon, a psychiatrist (green AB 167). At this time, the respondent said that she was experiencing migraines 'every second day' and that she found it difficult to sleep. She said that she 'felt indigested [sic] had pain in [her] muscles and could not concentrate [on] any chores around the house'. She said that she also 'felt like crying over any situation that could bring minimum frustration' (green AB 168).

50 On 25 July 2012, the respondent saw Dr Pearce for a third time (green AB 199 - 200).

51 In late July and early August 2012, the respondent said that she was awaiting word as to the name of the school to which she would be transferred (green AB 168). On 13 August 2012, she spoke to the principal of Waikiki Primary School who told her that he would telephone her later that day to tell her when she could start work (green AB 109, 169). However, he did not contact her. On 15 August 2012, she said that she 'felt suffocated and continued to suffer with migraines' (green AB 169). On 16 August 2012, she attended upon Dr Wood, who issued a first medical certificate under the Act stating she was totally unfit for work from 26 March 2012 to 6 July 2012 (green AB 201 - 202). The respondent said that her body 'ached' and that she could not sleep or eat (green AB 169).

52 Neither in her statements nor in her oral evidence did the respondent say anything about her symptoms during the period between 16 August 2012 and 23 January 2013. However during this period, the respondent was seen by, among other health professionals:

(b) Dr Lawrence D Terace, a consultant psychiatrist, on 18 September 2012, at the appellant's request (green AB 247 - 261); and

(c) Dr Dennis A Tannenbaum, another consultant psychiatrist, on 28 November 2012, at the request of her solicitors (green AB 230 - 240).

53 As will be seen, the respondent provided Drs Terace and Tannenbaum with a medical history which included her symptomology. On 14 January 2013, Dr Wood certified that she was fit to work for two days per week (green AB 221 - 222).

54 Between 23 January 2013 and late February 2013, discussions took place with the appellant in relation to the respondent returning to work on a trial and graduated basis (green AB 170 - 174). The respondent said that in late January 2013, she received emails from the appellant referring her to the Department of Education's workplace rehabilitation provider to discuss her return to work. The proposed location for her return to work was Calista. By then, Mr Edwards had left. On 30 January 2013, she met with the workplace rehabilitation provider and the new principal at Calista, Mr Craig Skinner, with a view to the respondent returning to work two days per week on a trial basis. According to her, Mr Skinner expressed various concerns and suggested she return to work at another school in the following year.

55 On 26 February 2013, the respondent saw Dr Terace again. In Dr Terace's opinion, the respondent was, at that time, at least fit to return to work as a primary school teacher on a full-time basis (green AB 262 - 282). The respondent did not challenge this opinion in the proceedings before McCann DCJ.

56 The respondent said that on 6 March 2013, she was notified that her workplace rehabilitation was '[on] hold' (green AB 174).

57 The respondent was cross-examined before the arbitrator by counsel for the appellant in detail and at great length. The cross-examination was spread over two hearing days and occupies 123 pages of transcript (green AB 20 - 143). It is unnecessary to deal with cross-examination in detail, save to observe that the appellant put into issue the respondent's credibility generally and, in particular, her account of Mr Edwards' conduct towards her, including the events of 23 and 26 March 2012. It was put to the respondent, and denied by her, that Mr Edwards' alleged inappropriate conduct 'didn't happen' (green AB 82).

58 When asked in cross-examination whether anything in the meeting of 23 March 2012 played on her mind more than others, the respondent said:

I was in disbelief that I could be offered [sic] with a bullet, you know, and having a letter that was out of this world calling me a witch - that was unbelievable. I couldn't explain my feelings. Even a year after I can't really, you know, let it go and overcome it. It's just as real for me still. Still I am receiving that bullet every day (green AB 85).

59 Counsel for the appellant cross-examined the respondent to the effect that, although the respondent had said that she wanted to return to work, she did not, in fact, wish to do so. The appellant denied this (for example, green AB 143).

Some other evidence adduced before the arbitrator

60 Although not produced to this court, it is evident from the arbitrator's reasons for decision that the appellant adduced evidence from Mr Edwards and others who had been employed at Calista. It appears that Mr Edwards denied that he had bullied, intimidated or had acted unfairly towards the respondent. The other witnesses who testified for the appellant appear to have said, in effect, that, in their experience, Mr Edwards had not acted towards them in the manner alleged by the respondent.

61 The parties adduced documentary medical evidence from the following medical practitioners:

62 Drs Pearce, Sekhon, Tannenbaum and Terace provided reports which were tendered into evidence before the arbitrator. It is convenient to summarise those in chronological order. Dr Wood did not provide a report; however, medical certificates and progress reports issued by her under the Act were tendered. I have summarised them in tabular form below.

63 Dr Pearce is a specialist physician in occupational and rehabilitation medicine. The respondent was referred to him by the appellant for a 'fitness for duty assessment' (green AB 185). On 30 April 2012, he wrote to Dr Wood. Some of what he wrote is illegible, but under the heading of 'Relevant medical details/ diagnosis', he wrote 'Anxiety disorder [secondary] to victimisation and work bullying' (green AB 185). In answer to a question concerning the respondent's fitness to work, Dr Pearce answered 'yes, if the principal who has bullied her is no longer at the school' (green AB 185). As to when the respondent might be fit to return to work he said 'beginning of school term 3 [approximately] 23 July [2012]' (green AB 186).

64 On 8 June 2012, Dr Pearce wrote to Mr Edwards in his capacity as principal of Calista. Dr Pearce concluded that the respondent's psychological disorder had not, at that point, 'stabilised sufficiently' for her to return teaching and that, until at least 25 July 2012, when a case conference was to take place, the respondent 'remains unfit for work' (green AB 193 - 194).

65 On 25 July 2012, Dr Pearce saw the respondent in what he described as a 'prolonged case conference' (green AB 199). On 26 July 2012, Dr Pearce again wrote to Mr Edwards (green AB 199 - 200). Under the heading 'Clinical Findings', Dr Pearce said:

[The respondent] presented as a bespectacled worried woman of stated age who was able to maintain good eye contact

[The respondent] was orientated in time place and person, her speech was normal in content and delivery

There was no overt evidence of disorder of mood or affect

[The respondent] remained cognitively intact, she displaying a limited insight into the realities of the workplace (green AB 199)

66 Dr Pearce then expressed the opinion that the respondent's psychological disorder had 'stabilised sufficiently for her to return to the workforce' (green AB 199). This opinion was qualified by the following recommendations:

• [The respondent's] return to the workforce is on a trial and error basis
• She commences initially in a supernumerary capacity
• She should be placed at an alternative school
• I recommend [the respondent] works two full days, Tuesday and Thursday for two weeks
• Followed by working three full days, Monday, Wednesday and Friday for two weeks
• Followed by review
• The need to remain compliant with her treatment under the care of her general practitioner, psychologist and psychiatrist was reinforced (green AB 199)

67 Dr Pearce said that he 'reappointed' the respondent on 5 September 2011 [sic: 2012] to 'reassess her psychological status and rehabilitation program, and to further advise on case management'. Whether he did is not known. No further report of Dr Pearce was provided.

68 Dr Sekhon is a psychiatrist. The respondent was referred to him by Dr Wood. On 16 July 2012, the respondent saw Dr Sekhon, and on 18 July 2012, he reported to Dr Wood (green AB 195 - 197).

69 He described her symptomology and mental state as follows:

In regards to symptomology, it appears that [the respondent] has developed an Adjustment Disorder with anxious mood and post-traumatic symptoms secondary to victimisation and harassment from her head-master [sic]. These behaviours have been present since 2008, but have gradually worsened this year. She developed severe symptoms in March 2012. Her main [symptoms] include severe anxious mood, anticipatory anxiety, somatic [symptoms] of anxiety, severe panic episodes, poor sleep, dreams re: headmaster victimising her, hypervigilance and helplessness. She denied thoughts of self-harm, suicide or of harming others. There were no signs of depression, mania or psychosis during my assessment.

When reviewed on [16 July 2012], [the respondent] had had 64 days of sick leave which was therapeutic. Her symptoms have resolved and she is able to return to full-time duties in Term 3. However, she is concerned re: returning to her school as she will be subject to further victimisation. She has had psychology [sic] input, which has been beneficial.

On Mental State Examination, [the respondent] presented as a well-groomed lady who was calm and co-operative with the interview[er]. She made good eye contact and a good rapport was established. Her mood was anxious and her affect reactive. Her speech was accented, but [normal]. There were no signs of formal thought disorder. Her thought contents were centred around her recent difficulties, concerns re: her mental health, denying thoughts of self-harm, suicide, harming others or revenge and there were no delusions evident. There were no perceptual anomalies. She was cognitively intact and has an above average intellect. Her judgment was intact and she had insight into her condition (green AB 196 - 197).

70 He diagnosed the respondent as having developed 'an Adjustment Disorder with anxious mood and post-traumatic symptomology secondary to work related issues (harassment, threats, victimisation and bullying)' (green AB 197). After expressing his diagnosis, Dr Sekhon wrote:

She is well to [return] to work, but a return to her original school has a high risk of precipitating her symptoms (green AB 197).

71 Dr Sekhon made a number of recommendations as to her future management, including:

If mediation is unsuccessful, consider a transfer to an alternative school. Will need to discuss with Dr John Pearce, Consultant Occupational Physician for [Department] of Education (green AB 198).

72 Dr Terace is a psychiatrist who was retained to provide a medico-legal opinion on behalf of the appellant. As I have mentioned, he saw the respondent twice, initially on 18 September 2012 (green AB 247) and again on 26 February 2013 (green AB 262). He provided reports dated 25 September 2012 (green AB 247 - 261) and 27 February 2013 (green AB 262 - 282).

73 In his report of 25 September 2012, Dr Terace describes the chain of events provided by the respondent which culminated in her workers' compensation claim. That description is broadly consistent with the evidence she gave before the arbitrator.

74 He noted these symptoms of her symptomology over the two to four weeks prior to the consultation (green AB 252 - 253):

(f) She experienced an alternating pattern of constipation interrupted by diarrhoea.

(g) She had some modest perceived cognitive disturbances.

(i) She felt daily, yet mild, chest pain as well as headaches once or twice a week.

75 Dr Terace noted that the respondent denied any former psychiatric disorder or significant psychological condition, had not taken leave for stress or distress, or made any previous stress-related workers' compensation claim (green AB 253).

76 Dr Terace expressed the opinion that the respondent developed 'a recognisable psychiatric condition', which he described as 'an adjustment disorder of the mixed type with mixed anxiety and depressed mood, acute'. Dr Terace said that this 'condition appeared to have arisen in late March 2012 after an interaction with her principal' (green AB 256). By reference to the diagnostic criteria for this condition set out in DSM-IV (which was contained in an annexure to Dr Terace's report), 'Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months' (green AB 260).

77 According to Dr Terace, the respondent's interaction with Mr Edwards significantly contributed to the contraction of the adjustment disorder; however over time, the respondent had become 'anxiously preoccupied' about her work and economic future to the point where these factors were the predominant cause of her psychiatric condition. The effect of this preoccupation, in Dr Terace's view, was that the initial interaction with Mr Edwards 'is probably no longer significant in [the] causation of her present psychiatric condition' (green AB 256).

78 Dr Terace described the respondent's condition as 'mild' and not preventative of her immediately returning to work on a full-time basis (green AB 257 - 258). He anticipated further recovery in the ensuing three to six months. However he expressed the view that, should the respondent not return to work, then her psychological condition may worsen and may not resolve within this timeframe, potentially requiring up to one to two years to resolve (green AB 258).

79 Dr Tannenbaum is a consultant psychiatrist who was retained to provide a medico-legal opinion on behalf of the respondent. As I have mentioned, he saw the respondent on 28 November 2012. He was given a number of documents including the respondent's statement of evidence and the reports of Drs Sekhon and Terace (green AB 231). His report is dated 4 December 2012 (green AB 230 - 240).

80 The respondent provided Dr Tannenbaum with a history in which she described her interaction with Mr Edwards between 2008 and 2012, including an account of the events of 23 and 26 March 2012. That history was, in general terms, consistent with the evidence given by her before the arbitrator (green AB 232 - 233).

81 Dr Tannenbaum then described the respondent's presentation in these terms:

[The respondent] presented as a co-operative woman who readily presented her history systematically and in some detail as noted above. She presents with multiple symptoms of a significant level of major depression with a number of symptoms of post-traumatic stress disorder. She is sleeping poorly, has nightmares of the events at work and constantly ruminates over them; she feels rage and anger in relation to these events and has become hyper-vigilant while driving. She is very anxious about her future. It appears that she was quite panicky and may have had panic attacks in the early stages of the evolution of these problems.

From a functional perspective, she is functioning reasonably satisfactorily in that she takes care of her daily activities, attends a number of classes, socialises, drives wherever she needs to go and is attempting to push herself to live as much of a life as she is able within the constraints that she faces. She effectively has a high level of distress associated with poor concentration but she has a reasonable level of function without being disabled. Her sleep is very poor and she has not been offered medication.

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.

The [sic] Dr Sekhon refers to this as adjustment disorder but he does also note the symptoms of [post-traumatic stress disorder].

I note that Dr Terace has provided additional incidents and he adds a useful explanation which clearly shows lack of support and may also indicate that the parents were being groomed to criticise the teacher. Dr Terace has also noted that she has gained weight and has had constipation, and this is associated with depression. I do think that since the time Dr Terace saw [the respondent], her depression has progressed (green AB 235 - 236).

82 The respondent's solicitors sought Dr Tannenbaum's opinion as to an appropriate diagnosis for the respondent. He opined:

The diagnosis is now upgraded from adjustment disorder [as expressed by Dr Sekhon] to post-traumatic stress disorder with associated symptoms of major depression and generalised anxiety (green AB 236).

83 Dr Tannenbaum said that the respondent's condition was caused by incidents related to her employment, saying that 'her problems are directly and absolutely caused by her workplace' (green AB 237). He appears to accept that the respondent was subjected to 'what appears to be a systematic campaign' (green AB 237).

84 Dr Tannenbaum said, in substance, that there was no evidence of the excluded matters, or expectation of excluded matters, pursuant to s 5(4) of the Act (green AB 237 - 238).

85 Dr Tannenbaum noted that the respondent appeared to have made some recovery from the 'severe state of depression and anxiety at the time that she left work' (green AB 239). He went on:

She is also a very determined person, who pushes herself into social and other situations to try and make the best of things, and she presents herself as being reasonably functioning and able, but at the same time on systematic questioning, the extent of her disorder is noted (green AB 239).

86 As to whether she was fit to return to work, Dr Tannenbaum said:

[The respondent] refuses to accept any level of disability and continues to function relentlessly. I do not believe that she has fully recovered and she still has persisting depressive symptoms in particular, and I do believe that she would benefit from antidepressant therapy plus more in the way of psychological therapy before she returns to work, however I do believe that she would be able to return to work even now despite the persistence of her symptoms.

She definitely needs medication to deal with her post-traumatic symptoms, poor sleep and nightmares, as well as depression and anxiety symptoms. She would benefit from cognitive behavioural therapy to desensitise her, and I cannot see from the therapy that she has had so far that this has been undertaken but I do not have any detail[s] (green AB 239).

87 Dr Tannenbaum's opinion with respect to the respondent's prognosis was expressed in this way:

I have noted above that your client is a very robust individual, who nevertheless has persisting symptoms. There was an initial recovery where she went from an extreme to a severe state, but she is not doing terribly well from a mood perspective and would not be robust in a workplace without further treatment. Post-traumatic stress disorder has high relapse potential, as does severe depression. Now that she has had a single episode, she will be likely to have future episodes and if the post-traumatic stress disorder does not resolve within two or three months, it is likely to be a persistent and chronic illness with future relapses (green AB 240).

88 I now turn to Dr Terace's report dated 27 February 2013 (green AB 262 - 282). Amongst the materials that he was provided with was Dr Tannenbaum's report of 4 December 2012.

89 It is clear that the respondent's description of her symptoms in the two to four weeks prior to her consultation with Dr Terace were quite different, and much more positive, than those she had described to Dr Tannenbaum and to Dr Terace when she had seen him on 18 September 2012. Dr Terace noted that the respondent described herself as 'Happy, happy, very happy' and that she was sleeping well, feeling energetic, had lost weight and was no longer cognitively disturbed or suffering from any symptoms of anxiety including chest pain, constipation and diarrhoea (green AB 267 - 269). In interview, he described the respondent as 'very engaging', 'pleasant and cooperative' and 'bright' (green AB 269).

90 In Dr Terace's opinion, the respondent did not present with a recognisable psychiatric condition and that any former psychological condition had resolved, describing the respondent as being 'in remission' (green AB 270).

91 The appellant's solicitors provided Dr Terace with a number of documents including Mr Edwards' witness statement. Based on an acceptance of the accuracy of this material, Dr Terace did not maintain his previously expressed diagnosis of adjustment disorder, noting that this material was inconsistent with the information given to him by the respondent on 18 September 2012 (green AB 274).

92 Dr Terace also disagreed with Dr Tannenbaum's diagnosis that the respondent was suffering from post-traumatic stress disorder. As to this diagnosis, Dr Terace said:

... Posttraumatic [sic] Stress Disorders arise only in response to a specific kind of stress that is of such gravity that a person perceives their life, mortality or morbidity, or that of another person, to be actutely threatened in a way which is outside of the boundaries of normal mental function and experience. Certainly, the perception of 'bullying or unreasonable treatment by [Mr Edwards]' as [the respondent] claims, or complaints from parents, do not meet these criteria and thus, [the respondent] cannot, and did not, and does not, meet [the] criteria for a Posttraumatic [sic] Stress Disorder at any time on that basis (green AB 272).

93 Dr Terace noted that the psychiatric or psychological symptoms relayed to Dr Tannenbaum by the respondent were more serious than those she relayed to him. However, Dr Terace accepted that it was possible that the respondent was symptomatic when she saw Dr Tannenbaum, but had improved and remitted, or gone into remission, since that time (green AB 273).

[The respondent] has full current work capacity for all employments commensurate with her abilities, knowledge, training and experience, full-time and without restrictions or modifications (green AB 276).

95 He expressed the view that, having regard in particular to the written statement of Mr Edwards, his opinion as to the cause of the respondent's psychiatric condition expressed in his first report had altered. He was now of the opinion that the respondent's psychiatric condition:

... was predominantly the product of inherent psychological vulnerability and constitutional or personality matters or factors in an individual who probably misperceived a threat which did not exist, and misperceived neutral stimuli as being threatening, and misperceived the interaction and conduct of [Mr Edwards] as being intimidating, harassing or bullying, but she probably also reasonably feared further disciplinary action or further performance management on the basis of the complaints made (green AB 279). (original emphasis)

... the initial interaction with [Mr Edwards] in relation to the complaints from at least one parent and the disciplinary matter is probably no longer relevant in causation of the present psychiatric condition (green AB 279).

97 On the question of causation, Dr Terace summed up his views in this way:

Overall, with consideration to all the aforementioned, I would conclude that her former psychological condition at the time I examined her was predominantly the product of her fears for her work and economic future, with lesser or minor contribution from her interactions with [Mr Edwards] pertaining to disciplinary matters, but was predominantly caused by inherent personality, psychological and constitutional matters in a person who probably tends to misperceive [a] threat where such threat does not exist and/or [there are] neutral stimuli and events in her environment (green AB 280).

98 As I have already indicated, Dr Wood did not provide a medical report; however, medical certificates and progress reports issued by her under the Act were tendered into evidence. These can be summarised as follows:

Totally unfit for work from 26 March 2012 to 6 July 2012.

Fit to return to pre-disability duties, but requires further treatment 'from 23 July 2012'.

'May need further psych [sic] sessions if she does not return to suitable work immediately'.

Fit to return to pre-disability duties, but requires further treatment.

'Continue (indistinct) with psychologist Megan Nielsen'.

Continue to have [post-traumatic stress disorder]; [secondary] to work with school

Fit to return to pre-disability duties, but requires further treatment, 'at [a] suitable school'.

Post-traumatic stress disorder; [secondary] to bullying at school

Fit to return to pre-disability duties, but requires further treatment.

Temporarily unfit for work from 12 November 2012 to 12 February 2013.

Totally unfit for work from 26 September 2012 to 11 January 2013.[2]

Fit to return to pre-disability duties, but requires further treatment.

Fit for restricted return to work on 'restricted days' of '2 days/week'.

Totally unfit for work from 28 February 2013 until 14 March 2013.

99 The arbitrator provided written reasons (blue AB 25 - 56).[3]

100 He identified the following issues for determination:

(a) Whether the events as described by [the respondent] on 23 and 26 March 2012 occurred;

(b) If so, whether [the respondent] sustained an injury being a mental ailment such as to fall within s 5(c) or s 5(d) of the Act;

(c) If so, whether [the respondent's] employment was a contributing factor to the contraction of the mental ailment;

(d) If so, whether the employment contributed to a significant degree to the contraction of the mental ailment;

(e) Whether the ailment wholly or predominantly arises from a matter within s 5(4) of the Act; if a matter falls within s 5(4)(a) or (b) was [sic] harsh and unreasonable on the part of the Department [of Education];

(f) Whether [the respondent] failed to mitigate her loss and if so, what is 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 of weekly earnings;

(h) Whether [the respondent] is entitled to the payment of statutory expenses ([6] blue AB 27 - 28).

101 In essence, these issues were answered by the arbitrator in this way:

Issue (e) - no - if the matter fell under s 5(4)(a) or s 5(4)(b) of the Act, the appellant's conduct was harsh and unreasonable ([147] blue AB 49; [150] blue AB 50).

Issue (f) - the respondent did not fail to mitigate her loss ([162] blue AB 51).

Issue (g) - yes, to the entitlement for weekly payments; however, the arbitrator did not quantity those payments ([192] blue AB 55).

The reasons in more detail Issues (a) and (b)

102 The arbitrator found that Mr Edwards 'made no threats, implied or otherwise, during any occurrences leading to the meeting on 23 March 2013 [sic: 2012]' ([27] blue AB 33). However, he found that the events of 23 and 26 March 2012 occurred as the respondent described them ([70] blue AB 39).

103 With respect to the meeting on 23 March 2012, the arbitrator accepted that Mr Edwards had not provided the respondent with any prior notice of Ms D's allegations, nor had she seen Ms D's letter. The arbitrator found that Mr Edwards took Ms D's allegations as fact; had formed a 'negative' judgment about the respondent; and also that Mr Edwards did not give the respondent a proper or adequate opportunity to respond to Ms D's allegations ([49] blue AB 36). He described Mr Edwards as delivering a 'monologue' ([53] blue AB 37) and characterised the meeting as amounting to an 'ambush' ([69] blue AB 39). The arbitrator accepted the respondent's evidence that she left the meeting 'deeply upset and humiliated' ([54] blue AB 37). Further, he found that Mr Edwards had referred the matter to the 'Standards and Integrity' division within the Department of Education prior to speaking to the respondent ([44], [50] blue AB 36).

104 With respect to the events on the morning of 26 March 2012, the arbitrator accepted that, when the respondent returned to school at that time, she was unable to teach and became 'more upset' when she saw Mr Edwards ([56] blue AB 37).

105 The arbitrator found that the respondent suffered a psychiatric illness, being an adjustment disorder with mixed anxiety and depressed mood ([91] blue AB 42). This finding correlates with Dr Terace's diagnosis in his first report. The arbitrator made this finding because, as he put it, 'such a diagnosis appears to be similarly found by each psychiatrist' ([91] blue AB 42). He did not accept Dr Tannenbaum's diagnosis that the respondent's condition had 'upgraded' (by which I understand him to mean 'deteriorated') from an adjustment disorder to post-traumatic stress disorder with associated symptoms of major depression and generalised anxiety ([174] blue AB 53; [190] blue AB 55).

106 With respect to the causal link between the adjustment disorder and the respondent's employment, the arbitrator found that the respondent's employment contributed to the contraction of the adjustment disorder to a significant degree ([116] blue AB 45 - 46; [128] blue AB 47).

107 The arbitrator came to these findings based on the following:

(a) The respondent had no prior personal or family history of psychiatric illness ([93] blue AB 42).

(b) The respondent's description of the events of 23 and 26 March 2012.

(c) Dr Sekhon's observation that the respondent developed 'severe symptoms' in March 2012 ([96] blue AB 42).

(d) Observations made in Dr Terace's first report, including that the respondent's adjustment disorder appears to have arisen in late March 2012 'after an interaction' with Mr Edwards ([109] blue AB 44).

108 The arbitrator did not accept the opinions expressed by Dr Terace in his second report of 27 February 2013 that any psychiatric condition suffered by the respondent was not caused by the events of late March 2012, but rather, by her 'inherent psychological vulnerability and constitutional or personality matters or factors' ([118] - [119] blue AB 46). The arbitrator did not accept these opinions because they were based on erroneous assumptions on Dr Terace's part to the effect that the respondent's description of the events in late March 2012 was inaccurate ([105] - [109] blue AB 44; [120] blue AB 46). The arbitrator further commented to the effect that there was no history of prior behaviours by the respondent suggestive of the personality factors identified by Dr Terace in his second report ([126] blue AB 47).

109 With respect to the issue of whether the respondent was entitled to weekly payments of compensation for total incapacity from 16 August 2012 (being the date of the first medical certificate issued by Dr Wood), the arbitrator noted that 'no specific submissions were made' on the respondent's behalf on that issue, other than 'in the context of failure to mitigate' (164] blue AB 52). The arbitrator acknowledged the appellant's submissions on the issue; in particular, that the respondent was fit to work on a full-time basis as a primary school teacher without restrictions from 18 July 2012, having particular regard to the opinions of Drs Sekhon, Terace and Tannenbaum ([165] - [169] blue AB 52). The appellant pointed to the following aspects of their reports:

(a) In July 2012, Dr Sekhon considered the respondent was well enough to return to work ([166] blue AB 52).

(b) In December 2012, Dr Tannenbaum considered the respondent was able to return to work despite the persistence of her symptoms ([168] blue AB 52).

(c) In February 2013, Dr Terace said that any form of psychological condition was 'in remission'; and that the respondent had made a 'full recovery' and had the clinical capacity to work full-time ([177] blue AB 53).

110 The arbitrator further noted that the appellant also relied on Dr Wood's first progress certificate dated 16 August 2012, and subsequent progress reports, in which she certified the respondent as fit to return to her pre-disability duties ([172] blue AB 52).

111 The arbitrator dealt with the medical evidence as follows.

112 As to Dr Wood, the arbitrator noted that she certified the respondent as fit to return to her pre-disability duties from 6 July 2012 to 26 September 2012, but subject to qualifications. Dr Wood then certified the respondent totally unfit for work from 26 September 2012 to 11 January 2013. As I have already said, the reasons for this certification were not evident from the documents ([171] - [172] blue AB 52; footnote 2 above).

113 As to Dr Sekhon, the arbitrator understood him as certifying that the respondent was fit to work on an gradual or increasing basis ([173] blue AB 53).

114 With respect to Dr Tannenbaum, the arbitrator noted that he observed more severe symptoms than when she had been seen by Drs Sekhon and Terace ([174] blue AB 53). The arbitrator regarded Dr Tannenbaum's opinion that the respondent was fit to work as qualified, having regard to Dr Tannenbaum's statement that the respondent 'would not be robust in a workplace without further treatment' ([175] - [176] blue AB 53).

115 As to Dr Terace's first report, the arbitrator appears to have regarded Dr Terace's statement to the effect that the respondent was fit to return to work as a qualified statement ([182] blue AB 54).

116 The arbitrator also made brief reference to Dr Pearce's reports, observing that, as at 26 July 2012, Dr Pearce's view was that the respondent was fit to return to work, but subject to qualifications ([188] blue AB 54 - 55).

Considering the evidence overall, I find [the respondent] to be totally unfit to work for the period [of] 26 August 2012 to 27 February 2013 (the date of Dr Terace's report). At that stage, I find Dr Terace is clear that [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.

I prefer the evidence of Dr Terace over Dr Wood for the reason expressed above and that 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 [post-traumatic stress disorder].

Prior to that time, I am satisfied that, considered overall, the evidence proves total incapacity, on the balance of probabilities. I have 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 ([189] - [191] blue AB 55).

118 As I read these paragraphs, the arbitrator accepted Dr Terace's opinion that, by 27 February 2013, the respondent had recovered. He preferred Dr Terace's opinion on this point over that of Dr Wood, based on Dr Terace's greater expertise. Insofar as Dr Tannenbaum's evidence might be to the contrary, he preferred Dr Terace's evidence because his report was later than Dr Tannenbaum's, and because of Dr Tannenbaum's (rejected) diagnosis of post-traumatic stress disorder. However, prior to 27 February 2013, based on all of the evidence, he considered that it established, on the balance of probabilities, total incapacity from 26 August 2012. As I understand the arbitrator, having regard to all of what was written in the reports, including the respondent's descriptions as to her symptomology, the arbitrator regarded her as being totally unfit to work. It appears that the arbitrator accepted the accuracy of the symptomology given by the respondent to each of the medical practitioners.

The appeal to the District Court Section 247 of the Act

119 Section 247(1) of the Act provides that, where written reasons are given, a party may, with the leave of the District Court, appeal to that court against a decision of an arbitrator. Relevantly, the District Court cannot give leave to appeal unless 'a question of law is involved': s 247(2). An appeal under s 247 is to be 'by way of review of the decision appealed against': s 247(5). Section 247(7) provides, amongst other things, that the District Court may affirm, vary or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance.

120 The question of whether an appeal 'involves' a question of law was discussed in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] (Buss JA); BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3] (Pullin JA) and Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20] (Buss JA). The term 'a question of law is involved' is broader in its scope than provisions which stipulate that an appeal may be brought 'on a question of law'. The authorities to which I have referred do not seek to define the scope of the matters that may be decided where 'a question of law is involved', although they stand for the proposition that an appeal 'involves' a question of law where either an error of law or an error mixed fact and law is involved. An error of fact alone is insufficient.

121 The grounds of appeal relied upon by the appellant in the District Court were 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 of her evidence ...'. (original emphasis)

1. 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 predominantly from the Respondents [sic] expectation of an excluded matter mentioned in s 5(4) of the Workers' Compensation and Injury Management Act 1981.

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 finding that "... 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 reports was not established and accordingly placed no weight whatsoever on them.

1. The Arbitrator erred in law by misconstruing the medical opinions of Drs Sekhorn [sic], Tannenbaum and Terace in finding that they supported that the Respondent was totally unfit for work for the period [of] 26 August 2012 to 27 February 2013 when that finding of total incapacity was not open to the Arbitrator on those opinions.

1. 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 Farmers Co-operative Ltd v Bunce (Unreported, WASC, Library No 7691, 31 May 1989); Mitchell v Canal Rocks Beach Resort [2002] WASCA 331, McGinnis v Westralian Forest Industries Pty Ltd (Unreported, CM-138/00 (Cockram PG) 9 February 2001) and Royal Perth Hospital v Morris [2012] WADC [sic] 82. The Arbitrator should have found that the Respondent had not discharged the evidential burden and dismissed the claim for weekly payments.

122 McCann DCJ refused leave to appeal on grounds 1 and 2. He gave leave to appeal on grounds 3, 4 and 5 on the basis that they were 'arguable'. However, the appeal was dismissed [87].

123 His Honour found that, contrary to the assertion made in ground 1, the arbitrator properly made findings of fact in relation to the respondent's credibility, having regard to shortcomings in the respondent's credibility as a witness [83].

124 As to ground 2, his Honour found that 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' [86].

125 With respect to ground 3, McCann DCJ observed that all of the expert medical opinion was, to some extent, informed by factual assumptions which differed from the arbitrator's findings [62]. However, his Honour was satisfied that there was a sufficient correlation between the facts as found by the arbitrator and assumptions relied upon by the experts to justify reliance upon the expert evidence [64]. In doing so, his Honour observed that the arbitrator attached 'decisive weight' to the events of 23 and 26 March 2012 and that the respondent had never contended that she was unfit for work by reason of any event prior to the meeting on 23 March 2012 [65]. His Honour dismissed ground 3 [66].

126 McCann DCJ dealt with grounds 4 and 5 together. His Honour viewed these grounds as collectively contending that the arbitrator erred in law by making findings which were not open on the evidence. His Honour noted that the appellant's contention was that the evidence 'was all to the opposite effect, namely that the respondent was fully fit for work' during the closed period. His Honour considered that there was some force in this contention [68].

127 His Honour noted that the respondent gave no evidence herself in the arbitration about her symptoms during the closed period and that she relied upon the histories that she gave to the medical practitioners who saw her during that time. McCann DCJ observed that no objection was taken to this in the arbitration, but commented 'The practice must be deprecated, as has been done in the past' [69].

128 In submissions before McCann DCJ, the appellant focused on [189] and [191] of the arbitrator's reasons and upon the arbitrator's purported reliance upon the evidence 'overall', or the reports when 'read together'. The submission made on behalf of the appellant was that the reports do not support the arbitrator's finding of unfitness for work.

129 McCann DCJ considered that the arbitrator's use of the word 'overall', when used on both occasions in [189] and [191] of his reasons, was in relation to 'the evidence' and not just to the expert reports. His Honour understood the arbitrator to mean 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 respondent's fitness to work in the closed period [71] - [72].

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'.

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 ([73] - [74]).

131 His Honour then said that he was satisfied that it was open to the arbitrator to find that the respondent was totally incapacitated during the closed period [75].

132 His Honour considered that the arbitrator did take into account, when deciding that the respondent was unfit for work, an irrelevant consideration, namely her concerns about her financial circumstances. However, his Honour was not satisfied that this error vitiated the arbitrator's decision because there were other relevant stressors during the closed period, such as the respondent's legitimate concerns about the return to work program, that were causally material to her incapacity [78].

133 In dismissing grounds 4 and 5, his Honour said:

In conclusion, grounds 4 and 5 are arguable and leave to appeal should be granted. However, notwithstanding the short-comings [sic] 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 [79].

134 I interpret his Honour's reference to shortcomings in the arbitrator's expression to refer to his use of the word 'overall' in relation to the evidence.

135 Pursuant to s 79 of the DCWA Act and s 254 of the Act, an appeal may be made to this court in respect of a judgment, order or determination in proceedings in the District Court under the Act, but:

(a) the appeal 'must relate to a question of law'; and

(b) leave to appeal must be obtained from this court.

136 It may immediately be seen that the term in s 254(a) of the Act 'must relate to a question of law' is different to the expression in s 247(2) of the Act, 'a question of law is involved'. I also note that the present form of s 254 came into effect on 1 December 2011. Previously, s 254 provided for an appeal to this court 'from a decision of the Commission in the proceeding on a question of law'. The significance of these differences in statutory language, if any, was not explored in this appeal. It is not necessary on the arguments put in this case, and undesirable given the absence of a contradictor, to construe the words 'must relate to a question of law'.

137 The grounds of appeal to this court are in these terms:

1. The Learned Appeal Judge erred in law in finding that it was open to the Arbitrator to find that the Respondent was totally incapacitated during the closed period and in drawing inferences as to the Arbitrators [sic] findings in relation to the Respondent's total incapacity when there was no evidence to support the findings of the Appeal Judge or the Arbitrator.
2. The Learned Appeal Judge erred in law in that he misdirected himself in noting [at 74] that 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 and then proceeded to consider irrelevant considerations in upholding the Arbitrators [sic] findings in relation to total incapacity having regard to how the Respondent advanced her case at Arbitration for total incapacity weekly payments.
3. The Learned Appeal Judge erred in law in that he misconstrued the role of an Appeal Judge by going too far and effectively substituting his own decision for that of the Arbitrator. The Learned Appeal Judge should have undertaken a real review of the Arbitrators [sic] Reasons for Decision to look for whether there was an error of law and if there was then he should have corrected the decision [and] not substituted his own theory for it.
4. The Learned Appeal Judge erred in law [at 64] by failing to find that the material facts as found by the Arbitrator were insufficient to support the ultimate conclusions of all specialist medical opinions (including Dr Terace relied upon by the Arbitrator) and should have rejected the evidence based on Pollock v Wellington.

In oral argument, the appellant's counsel accepted that ground 3 added nothing to grounds 1 and 2 and was not a freestanding ground of itself (appeal ts 35). Accordingly, nothing more need be said about ground 3.

139 The grounds of appeal focus on the arbitrator's finding that the respondent was totally incapacitated for work during the closed period (the finding) and his Honour's conclusion that the finding was open on the evidence and involved no appellable error under the Act.

140 At the heart of the appeal to this court is the contention that there was no evidence capable of supporting the finding. This contention is captured in ground 1, which counsel characterised in oral argument as 'probably the strongest [ground] of all the grounds' (appeal ts 6). Grounds 2 and 4 allege specific errors of law. The principal (but not sole) contention in ground 2 is that his Honour, in upholding the finding, took into account irrelevant considerations. The particular irrelevant considerations are 'the subjective vicissitudes of the return to work process' (as his Honour put it at [74] of his reasons) and 'the prevalence or otherwise of the relevant stressors in the respondent's workplace' (appellant's submissions [43]).

141 Ground 4 raises the admissibility of the expert evidence which the arbitrator used to support the finding. The appellant submitted that the expert evidence was inadmissible because crucial facts upon which the opinions were based had not been proved. In support of this submission, the appellant cited Anderson J's reasons in Pollock v Wellington (1996) 15 WAR 1, 3 - 4. The appellant submits that his Honour erred in rejecting the contention that the expert evidence was inadmissible.

142 It is convenient to deal with ground 4 first, then ground 2 and, finally, ground 1.

143 The appellant alleges that the opinions of Drs Sekhon, Tannenbaum and Terace (in his first report) were all predicated upon an acceptance of the respondent's allegations that she had been the subject of harassment, victimisation, intimidation and bullying by Mr Edwards from 2008. In light of the arbitrator's finding that the respondent was not subject to such behaviour by Mr Edwards prior to 23 March 2012, the appellant contends that the opinions they gave were inadmissible, having regard to what was said by Anderson J in Pollock v Wellington. The appellant submits that his Honour erred in finding (at [64]) that the facts as found by the arbitrator bore a sufficient correlation to those relied upon by the medical experts and, accordingly, those opinions were admissible.

144 Pollock v Wellington concerned a common law claim for personal injuries which was subject to the technical rules of evidence. In the course of his judgment, Anderson J said:

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: see Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642; Trade Practices Commission v Arnotts Ltd (1990) 21 FCR 324; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 845 - 846.

As with any other evidence, expert opinion must be comprehensible and the conclusions 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: see Steffen v Ruban 84 WN (Pt 1) (NSW) 264.

...

Such an opinion is manifestly groundless unless the medical expert knows all the relevant facts. In a case such as the present, those facts would include what relevant physical actions or functions are involved in operating the particular machine, how much effort is required to perform each function, and at what rate and over what period of time the relevant functions have to be performed. So far as it appears these facts were not known to the doctors and they were not asked to base their opinions on any assumption as to the facts. The opinions were therefore wholly devoid of the basic facts necessary to sustain them (3 - 4).

145 In Beer v Duracraft Pty Ltd [2004] WASCA 192, McLure J observed (in the context of proceedings before the Compensation Magistrates Court to assess a worker's degree of disability) that:

In many cases there is not an exact correlation between the facts proven in evidence and the facts relied upon by the medical practitioner upon which his or her opinion is based. The role of the decision maker is to examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight [80].

146 The appellant contends that neither the arbitrator nor his Honour had regard to the variation between the facts as found by the arbitrator and those relied upon by the medical practitioners. Had they done so, the appellant submits that each should have found the opinions of the medical practitioners to be inadmissible or of no weight.

147 It is evident from the reports of Drs Sekhon, Tannenbaum and Terace (the first report) that the respondent gave a history of harassment on the part of Mr Edwards prior to 23 March 2012. She also gave a history in which she described the events of 23 and 26 March 2012 and of her symptoms thereafter. It appears that these medical practitioners accepted what they had been told by the respondent regarding these matters as fact.

148 As I have already said, the arbitrator found that Mr Edwards made no threats prior to the meeting on 23 March 2012. However, he found that the events of 23 and 26 March 2012 occurred as the respondent described them and evidently accepted the respondent's account of events thereafter. Thus, there is a discrepancy between the facts as found by the arbitrator and the facts as apparently accepted by the medical practitioners.

149 McCann DCJ acknowledged that the experts' opinions were, as his Honour put it, to some extent informed by factual assumptions which differed from the arbitrator's findings, including that they assumed that the history of antecedent harassment and victimisation was more extensive than the arbitrator found (at [62]). However, his Honour said that he was satisfied that the arbitrator was mindful of the requirement in Pollock v Wellington and the facts, as found, sufficiently vindicated the arbitrator's conclusions.

150 In my view, his Honour's conclusions were correct, substantially for the reasons he gave. Although Drs Sekhon, Tannenbaum and Terace accepted a more extensive history of harassment than that found by the arbitrator, it may be concluded that, upon a fair reading of the reports of Drs Sekhon and Terace, each regarded the events in late March 2012 as causative of the respondent's illness. Dr Sekhon noted that the respondent developed 'severe symptoms' in March 2012; Dr Terace expressed the opinion that she developed her adjustment disorder 'in late March 2012'. The position with respect to Dr Tannenbaum is, I think, different. He accepted that the respondent was subjected to a 'systematic campaign' of harassment from Mr Edwards. This finding was relevant to his diagnosis of post-traumatic stress disorder. Of course, the arbitrator made no finding of a 'systematic campaign' by Mr Edwards against the respondent. By the same token, the arbitrator did not accept the diagnosis of post-traumatic stress disorder.

151 In truth, the significance of Dr Tannenbaum's report was not his diagnosis of post-traumatic stress disorder, but rather his description of the respondent's symptoms as she presented to him on 28 November 2012. Dr Tannenbaum's assumption that the respondent was subjected to a 'systematic campaign' by Mr Edwards was irrelevant to the respondent's symptomology at the time she presented to Dr Tannenbaum.

152 Leave to appeal on ground 4 should be refused and the ground dismissed.

153 Ground 2 concerns [74] of his Honour's reasons for decision which, for convenience, I will repeat:

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.

154 This paragraph needs to be read as a whole. As I understand his Honour, he was making these points:

(a) Where a worker is certified fit to return to work with qualifications or conditions, the nature and extent of the qualifications or conditions are relevant to a decision as to whether the worker is actually fit to return to work of the kind she performs under the conditions in which she is expected to perform it.

(b) The impact of any qualifications or conditions upon the respondent's fitness to return to work is relevant to whether she was in fact fit to return to work of the kind she performs under the conditions in which she is expected to perform it, particularly given her illness and the possibility of a return to work at Calista.

155 The points made by his Honour were, with respect, correct. The matters he referred to were clearly relevant to the question of her fitness to return to work.

156 The allegation that his Honour erred in law in taking into account irrelevant circumstances has not been made out. Leave to appeal should be refused on ground 2 and the ground dismissed.

157 The respondent did not, in her evidence before the arbitrator, testify to the effect that she was totally incapacitated from work during the closed period. The arbitrator's finding, which his Honour upheld, was based on his assessment of the 'overall' evidence, including the expert medical opinion and the symptomology the respondent gave to the medical practitioners.

158 If the technical rules of evidence applied to the proceedings before the arbitrator, secondary evidence of the respondent's symptoms during the closed period was hearsay and thus, inadmissible. However, proceedings before the arbitrator were conducted in accordance with s 188(2) and s 188(3) of the Act (to which I have already referred) and not the technical rules of evidence.

159 By s 188(2) of the Act, Parliament has expressly excluded the operation of the Evidence Act 1906 (WA) in arbitral proceedings and, pursuant to s 188(2)(a) and s 188(3), an arbitrator is not bound by the rules of evidence and may inform himself or herself of any matter as he or she thinks fit.[4]

160 Section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) is an analogous provision to s 188. As to that section, Hill J, in Casey v Repatriation Commission (1995) 60 FCR 510, said that the section 'means what it says' (514). His Honour continued:

The fact that material may be inadmissible in accordance with the law of evidence does not mean that it can not be admitted into evidence by the Tribunal or taken into account by it. The criterion for admissibility of material in the Tribunal is not to be found within the interstices of the rules of evidence, but within the limits of relevance (514).

161 See also Secretary of the Department of Security v Jordan (1998) 83 FCR 34; 43 - 44 (Hill J). In my opinion, Hill J's comments apply with equal force to s 188(2) and s 188(3) of the Act.

162 Provisions such as s 188 of the Act and s 33 of the AAT Act are intended to be facilitative, not restrictive. Their purpose is to free tribunals, at least to some degree, from the constraints otherwise applicable to courts of law and regarded as inappropriate to tribunals: Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [49] (Gleeson CJ & McHugh J).

163 The evidence of the respondent's symptomology as set out in the medical reports - particularly those of Drs Sekhon, Terace and Tannenbaum - was plainly relevant to the issue of her incapacity. As such, that evidence was admissible pursuant to s 188(2) and s 188(3) of the Act and could be considered by the arbitrator and given such weight as he thought fit.

164 I note that the appellant does not allege that it suffered any unfairness as a result of the arbitrator taking into account this secondary evidence. The statements made by the respondent to the medical practitioners appeared in the reports. These were apparently available prior to the hearing before the arbitrator and counsel for the appellant was free to cross-examine the respondent as to her symptomology. I also note that no objection was taken to the admissibility of this material before the arbitrator.

165 For these reasons, no error of law occurred because the arbitrator took into account secondary evidence of the respondent's symptomology.

166 I now turn to the question of whether his Honour erred in law by failing to find that there was no evidence to support the respondent's claim of total incapacity during the closed period.

167 The appellant's submissions in support of this contention are based on an unduly narrow proposition; that is, the only evidence capable of establishing total incapacity for the closed period was the expert opinion evidence. That evidence, the appellant asserts, went only 'one way' and that was to the effect that the respondent was capable of returning to full-time employment during the entire closed period.

168 The question of the respondent's capacity to work during the closed period was one of fact for the arbitrator to decide. While expert evidence is plainly relevant and may even be decisive, the duty of an arbitrator is to assess the question based on all of the relevant evidence. It is unnecessary in this case, and inappropriate in any event, to attempt to define what kinds of evidence are relevant or irrelevant to the assessment of a worker's capacity. In the present case, the arbitrator could properly have regard to the expert's opinions, the respondent's symptomology, the opportunities provided by the appellant for the respondent to return to work, the respondent's response to those opportunities and whether that response was reasonable. In his assessment of the medical evidence, the arbitrator was not bound to accept all of a witness's testimony. As with any witness, it was open to the arbitrator to accept all of a medical practitioner's evidence, part of it, or none of it, and it was for the arbitrator to accord what weight he thought fit to the expert evidence he accepted.

169 In my opinion, there was some evidence capable of supporting the finding and thus, no error of law has been demonstrated.

170 The starting point is that the respondent suffered an injury as defined in s 5(1) of the Act, namely, an adjustment disorder of a mixed type with mixed anxiety and depressed mood. This injury was caused by the respondent's employment and, in particular, the incidents which occurred on 23 and 26 March 2012. The respondent's total incapacity resulted from her injury. The finding as to the respondent's injury and her resulting total incapacity is consistent with the diagnosis made by Dr Terace in his first report and is, to some extent, supported by Dr Sekhon. It was open to the arbitrator to make the finding of causation, having regard to the matters I have already referred to at [107] of these reasons.

171 It must be acknowledged that Drs Pearce, Sekhon, Terace (in his first report), Tannenbaum and Wood all certified the respondent as being fit to return to work, at least on a partial basis. Save for Dr Terace, each expressed some qualification to their opinion:

(a) Dr Pearce recommended a return to the workforce on a 'trial and error basis'.

(b) Dr Sekhon said that she was fit to return to work, but believed that a return to her original school (Calista) had a 'high risk of precipitating her symptoms'.

(c) Dr Tannenbaum did not believe that the respondent had fully recovered and required various therapies and medication. He described her as 'not doing terribly well from a mood perspective and would not be robust in a workplace without further treatment'.

(d) Dr Wood noted in her progress report dated 11 September 2012 that the respondent was fit to return to her pre-disability duties, but required further treatment. Dr Wood recommended that her return to work be coordinated between the respondent's employer and doctor.

172 The evidence reveals that, although the respondent herself was prepared to return to work at Waikiki Primary School in August 2012, the appellant did not provide her with work, either on a graduated or part-time basis.

173 With respect to her symptomology, the picture that emerges from the reports of Drs Sekhon, Terace (in his first report) and Tannenbaum is that, in the period between 16 July 2012 and 4 December 2012, the respondent's symptoms fluctuated in their seriousness. The symptoms recorded by Dr Tannenbaum appear to be considerably more serious than those described in Dr Terace's first report or indeed, in Dr Sekhon's report. The symptoms described by Dr Tannenbaum in combination appear debilitating and, despite the respondent's stoicism, reasonably justified a finding on the arbitrator's part of her total incapacity for work.

174 On 14 January 2013, Dr Wood certified that the respondent was fit to work for two days per week. The respondent engaged in discussions with the appellant soon after, until late February 2013, with a view to her returning to work on a trial and graduated basis. Meanwhile, and based on what the respondent told Dr Terace, as set out his second report, the respondent's symptoms appeared to have resolved. Exactly when this occurred is not known; however, the symptomology she gave Dr Terace was for the period of two to four weeks before the consultation with him on 26 February 2013. However, as at 26 February 2013, the appellant was not prepared to provide her with employment.

175 Dr Terace's opinion expressed in his second report that, when she saw him on 26 February 2013, the respondent was fit to return to work on a full-time basis may well be accepted. However, acceptance of this does not require an acceptance of everything Dr Terace said in that report, and particularly his finding that the respondent did not suffer a compensable injury. That opinion was based, at least in part, on Dr Terace's erroneous assumption that Mr Edwards had not conducted himself on 23 and 26 March 2012 in the manner described by the respondent.

176 As I have pointed out earlier, an appeal to this court pursuant to s 254 of the Act must relate to a question of law. In my opinion, there was evidence to support the finding. I would not give leave to appeal with respect to ground 1. It must be dismissed.

177 Leave to appeal should not be granted in respect of any of the grounds of appeal. None of them have been made out. The appeal must be dismissed.

[1] A division within the Department of Education.

[2] The reason for this backdated certification is neither clear from the face of the documents, nor the arbitrator's reasons for decision ([172] blue AB 52).

[3] The following paragraph references refer to the paragraph numbers set out in the arbitrator's reasons for decision.

[4] See also s 32 of the State Administrative Tribunal Act 2004 (WA), which is in virtually the same terms as s 188(2) and s 188(3) of the Act.