Australia: Stress claim at WorkCover WA on appeal to District Court of Western Australia

HAYTER -V- HWE MINING PTY LTD [2017] WADC 26 heard by His Honour Goetze DCJ on appeal from the decision of Arbitrator Powles at Workcover WA

Mr Hayter, the appellant worker, claimed to have suffered depression from stress in his work place. The employer, HWE, did not accept the claim. The claim proceeded to an Arbitration hearing at WorkCover WA at which Arbitrator Powles dismissed Mr Hayter's claim for workers compensation as she was not satisfied the depression was work caused. Mr Hayter appealed to the District Court of WA.

Mr Hayter had commenced with HWE in November 2013 as a machine operator as a fly-in, fly-out worker in the Pilbara working 12.5 hour shifts, on swings of 14 days on and seven days off.

In March 2014 he was promoted to the position of leading hand/supervisor. Subsequently he reverted to his previous role as a machine operator. There was a dispute as to the date this occurred.

After the change back to machine operator, Mr Hayter was a "hotseat" operator undertaking light pick up duties. This resulted in him not always having a machine to operate on a full-time basis and on occasions needing to wait on standby in the crib room until he was needed to replace another machine operator.

Mr Hayter claimed he was sitting in the crib room more and more and that this caused him stress which resulted in depression. On 29 September 2014 and 18 October 2014, Mr Hayter returned to Perth before the end of his swing by reason of depression and he did not return to work.

On 21 November 2014 Mr Hayter obtained a workers' compensation first medical certificate. The certificate specified 'Depression' and two psychiatrists subsequently diagnosed a recognisable psychiatric condition, which is capable of being an injury within the meaning of s 5(1)(c) the Workers' Compensation and Injury Management Act. The question being, was the depression work caused and compensable?

His Honour noted – The definition of 'injury', by s 5(1), includes:

Subsection (4) then provides:

4. For the purposes of the definition of injury, the matters are as follows –

1. the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment; and
2. the worker's not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and
3. the worker's expectation of –
4. 1. a matter; or
   2. a decision by the employer in relation to a matter,

   referred to in paragraph (a) or (b).

and that

Relevantly, subsection (5) further provides that:

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 –

1. the duration of the employment; and
2. the nature of, and particular tasks involved in, the employment; and
3. the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and
4. the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and
5. matters affecting the worker's health generally; and
6. activities of the worker not related to the employment.

His Honour then referred to the decision in Department of Education v Azmitia [2014] WADC 85 [16] and stated – "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".

Some of the issues for determination at the WorkCover hearing were –

• Whether the psychological injury was caused by demotion, and
• Whether the psychological injury was caused by domestic issues.

At WorkCover the employer –

1. contended Mr Hayter refused to work on another crew at a particular location in the mine which had more duties available and would have prevented him from being assigned to the crib room;
2. a. disputed the claim that Mr Hayter was left in the crib room without work and maintained he was provided with appropriate duties during the course of his shifts; and
3. b. disputed that being assigned to the crib room was causative of stress and contended that personal factors, unrelated to employment, were the cause of Mr Hayter's illness; and
4. pleaded Mr Hayter's stress was not caused, or contributed to significantly, by his employment, or if it was, then the stress was wholly or predominantly the result of a matter within s 5(4) of the Act namely, the change in Mr Hayter's role and his subsequent disappointment at the loss of further opportunities to undertake supervisory roles.

His Honour stated that "This would then seem to fit within s 5(4)(a), being either demotion, transfer or redeployment, or s 5(4)(b), being not granted a benefit in relation to his employment i.e., the loss of opportunity for promotion".

His Honour also relevantly noted in terms of the legislative provisions that "it was not suggested by Mr Hayter's counsel that either his demotion, transfer or redeployment, or that any loss of a chance of further promotion, were unreasonable and harsh on the part of HWE. On appeal, demotion was not an issue".

His Honour then examined in detail the Arbitrators decision and the legislative provisions relating to an Appeal and made the following points:

• Only Mr Hayter could give evidence as to the existence and nature of his depression beginning in July after his change in role, his hours on standby in the crib room continuing to increase incrementally into September and October 2014 and his perceived reasons for that depression. HWE challenged his evidence and claimed that the depression suffered by Mr Hayter only arose from his marital difficulties. Therefore, the main issue at arbitration was the cause of Mr Hayter's psychiatric illness. This, in turn, required an examination of his evidence.
• At arbitration, Mr Hayter failed to satisfy the arbitrator that his psychiatric illness was work caused.
• The real issue in this appeal then, is whether the arbitrator was wrong to find Mr Hayter had not proved the facts necessary to establish the cause of his psychiatric illness. This, in turn, comes back to Mr Hayter's credibility.

After fully and carefully considering the matter His Honour wrote the following conclusions:

• In the circumstances of Mr Hayter's lack of credibility, his evidence was properly rejected without corroboration;
• Mr Hayter's evidence and other evidence led by him was not persuasive to the required standard that his claim of depression was caused by extended hours sitting idle in the crib room;
• Mr Hayter did suffer marital problems at relevant times; and
• on the evidence, those marital problems were a potential contributor to Mr Hayter's psychiatric illness.

His Honour also found it was wrong to suggest that the arbitrator misapprehended any evidence or requirement to determine credibility, omitted to make findings, overlooked facts and provided inadequate reasons in order to make out an error of law.

For these reasons he refused leave to appeal and dismissed Mr Hayter claim.

Conclusion

This decision runs to over 60 pages and is a very thorough, useful and informative examination of the legislative provisions and case law relating to stress claims in the workers' compensation scheme in Western Australia.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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