Fire and Rescue NSW v S - [2015] NSWWCCPD 50

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Fire and Rescue NSW v S [2015] NSWWCCPD 50
APPELLANT:	Fire and Rescue NSW
RESPONDENT:	S
INSURER:	Employers Mutual Ltd
FILE NUMBER:	A1-6797/13
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	12 May 2015 and 15 July 2015
DATE OF APPEAL DECISION:	26 August 2015
SUBJECT MATTER OF DECISION:	Psychological injury; refusal to vacate fourth arbitration hearing date; alleged failure to adjudicate on worker’s criminal record; alleged failure to give reasons in assessment of medical evidence; causation; whether incapacity resulted from accepted psychological injury or from later criminal conduct; principles in Calman v Commissioner of Police [1999] HCA 60, 19 NSWCCR 40 discussed and applied; alleged denial of procedural fairness; whether injury wholly or predominantly caused by transfer; alleged failure to consider evidence relating to reasonableness of transfer; s 11A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	TurksLegal
Respondent:	Masselos & Co Lawyers
ORDERS MADE ON APPEAL:	1. Subject to amending paragraph 1(b) of the Certificate of Determination of 12 May 2015 to delete “16 April” and to insert “16 May” in its place, the Arbitrator’s determinations of 12 May 2015 and 15 July 2015 are confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

This appeal concerns a claim for weekly compensation, medical expenses and lump sum compensation for a psychological injury suffered in 2006 and aggravated or exacerbated by later events at work in 2012 and 2013. The employer has admitted that the worker suffered a psychological injury in 2006, but it has disputed liability for any compensation from 2013 as a result of that injury.
The employer has disputed that the worker suffered any aggravation or exacerbation injury in 2012 or 2013. If the worker suffered an exacerbation or aggravation in 2012 and/or 2013, the employer has asserted that that injury has resulted from reasonable action with respect to transfer under s 11A of the Workers Compensation Act 1987 (the 1987 Act). It asserted that, with respect to all injuries, the worker has no entitlement to weekly compensation because his incapacity has resulted from his being charged, in April 2014, with the supply of illegal drugs.
The Arbitrator found that the effects of the 2006 injury were continuing and that the worker’s entitlement to compensation resulted from that injury. Given that finding, it was not necessary for the Arbitrator to determine if the worker had suffered separate injuries in 2012 and/or 2013. Nevertheless, the Arbitrator found that the worker had also suffered separate aggravation or exacerbation injuries in 2012 and 2013. However, because the employer had not established that those injuries had been wholly or predominantly caused by reasonable conduct with respect to transfer, the employer had not made out its s 11A defence. The employer has appealed.
The main issues on appeal concern whether the Arbitrator erred in failing to vacate the fourth arbitration hearing date, denying the employer procedural fairness by failing to “adjudicate” on the worker’s criminal conduct, failing to provide adequate reasons for preferring the evidence from the worker’s treating psychiatrist to that of the psychiatrist qualified by the employer, denying the employer procedural fairness by ignoring statements relied on by the employer in its defence under s 11A, and denying the employer procedural fairness by failing to give adequate reasons on causation.
For the reasons explained below, the appeal is unsuccessful and, subject to one minor amendment, the Arbitrator’s determination is confirmed. To understand fully the Arbitrator’s decision, and the issues on appeal, it is necessary to set out the procedural and factual background in some detail.

PROCEDURAL BACKGROUND

The respondent worker, S, worked as a fire station officer with the appellant employer, Fire and Rescue NSW, from 1992 until he resigned on 18 December 2014. It is accepted that, as he was a “firefighter”, the Workers Compensation Acts apply to him as if the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 had not been enacted (cl 25 of Pt 19H of Sch 6 to the 1987 Act).
In an Application to Resolve a Dispute (the Application) filed in the Commission on 25 June 2013, the worker claimed weekly compensation from 6 April 2013 to date and continuing, and compensation for medical expenses. In fact, the claim was (initially) only for various short closed periods starting on 6 April 2013. That claim was later amended to add, in addition, a claim for continuing weekly compensation from 30 April 2014 and lump sum compensation in respect of a 19 per cent whole person impairment. The Application pleaded three dates of injury: 7 December 2006, 19 December 2012 (later amended to be 19 June 2012) and 5 April 2013.
The first date of injury relates to bullying, harassment and victimisation that followed an incident in January 2005 when the worker reported a colleague for misconduct, namely using a fire truck for a joy ride. As a result of this incident, or more accurately, its aftermath, the worker developed a chronic adjustment disorder with anxiety and depressed mood. The appellant’s insurer, Employers Mutual Ltd (Employers Mutual), accepted liability for this injury and paid weekly and other compensation. (It is assumed that the date of injury of 7 December 2006 is the deemed date of injury under the disease provisions. For convenience, I will refer to the 7 December 2006 injury as “the 2006 injury”, but in reality, that injury resulted from a series of events that occurred after the reporting incident in January 2005.)
The second injury relates to a harassing (abusive) phone call that the worker received in the course of his employment on 19 June 2012, which resulted in a “recurrence/aggravation of [the] adjustment disorder”.
The third injury is pleaded as follows:
“Upon return from extended leave in April 2013 [the worker] was confronted by his Inspector with a threat/demand to transfer to Redfern Fire Station – the very subject of previous proceedings and an Appeal which had been dealt with on 9 December 2012.”
In support of his claim, the worker relied on evidence from his treating psychiatrist, Dr Dinnen, who has treated him virtually continuously since 2005, his treating general practitioner, Dr Adams, who has treated him for about 20 years, and from a consultant psychiatrist, Dr Gertler, who he saw at the request of his solicitors.
Though Employers Mutual has conceded that the worker suffered a psychological injury on 7 December 2006, it has disputed that the worker has any entitlement to compensation as a result of that injury. It has disputed liability for the second and third injuries on the ground that the worker did not suffer a compensable injury under s 4 of the 1987 Act and to which his employment had been a substantial contributing factor.
With respect to the second and third injuries, Employers Mutual further asserted that no compensation was payable because any psychological injury caused by the incidents pleaded was wholly or predominantly caused by reasonable action taken or proposed to be taken by the appellant with respect to the transfer of the worker from Bondi Fire Station to Redfern Fire Station (s 11A).
Employers Mutual relied on evidence from Dr Kaplan, consultant psychiatrist, who saw the worker once, on 20 May 2014, and stated that the worker most likely had an adjustment disorder in 2005, which resolved within several years. Dr Kaplan thought that the worker’s continuing symptoms were consistent with a Generalised Anxiety Disorder, a condition that occurs in constitutionally predisposed individuals. He did not accept that it was caused by the worker’s work.
The issue of whether the worker’s incapacity from 30 April 2014 resulted from his work injury or injuries is further complicated because, on 22 April 2014, he was charged with having supplied a prohibited drug, a charge to which he pleaded guilty in early 2015. The appellant argued that any psychological condition beyond that date, and therefore any entitlement to compensation, was caused by the stress associated with those proceedings.
At a teleconference on 24 February 2014, the Commission listed the matter for conciliation and arbitration on 23 June 2014. On 12 June 2014, the appellant’s solicitors, TurksLegal, sought leave to issue a Direction for Production on the NSW Police. Because of that request, the arbitration did not proceed on 23 June 2014 and a teleconference occurred in its place. At that teleconference, the Arbitrator gave leave for a Direction for Production to be issued on the NSW Police and listed the matter for arbitration on 24 July 2014. The NSW Police produced documents to the Commission on 14 July 2014 and the Commission gave the worker access to the documents from 15 July 2014 and the appellant access from 22 July 2014.
At the arbitration hearing on 24 July 2014, counsel for the appellant, Mr Morgan, sought leave to rely on certain late documents and applied for an adjournment. Mr Morgan submitted that, since the proceedings commenced in 2013, the case had changed from one for several short closed periods to one for continuing compensation from 30 April 2014. He sought an adjournment to seek full compliance by the NSW Police with the Direction for Production previously issued, which he said was to be relevant to the worker’s credit, and to have the opportunity to provide that material to Dr Kaplan. Counsel for the worker, Mr Stockley, opposed both applications.
The Arbitrator ruled that, in the circumstances, it was in the interests of justice that the appellant be permitted to rely on the late documents and to have time to further investigate the police records. He therefore granted the adjournment.
On 20 August 2014, TurksLegal wrote to the Commission. They sought that the Commission not relist the matter for arbitration until late October or early November 2014 and sought leave to issue another Direction for Production on the NSW Police and a Direction for Production on Dr Durrell (later corrected to be Dr Dinnen). On 27 August 2014, the Arbitrator granted leave for those Directions to be issued.
At a teleconference on 7 October 2014, when both sides were represented by their respective solicitors, both parties indicated they would be seeking to update their medical evidence. However, both parties were happy for the Arbitrator to fix a date for arbitration. As a result, the Arbitrator fixed the matter for arbitration on 18 November 2014.
The Commission has no record of what happened on 18 November 2014, but the Arbitrator wrote to Mr Funnell, a Commission Dispute Services Officer, on 20 November 2014 stating that the matter needed a new hearing date, which he had fixed for 19 January 2015. The Commission issued a Notice of Conference and Hearing Before Arbitrator on 21 November 2014 confirming the hearing date of 19 January 2015 at 10 am. That time was later amended to be 9.30 am and to specify it as a full day listing (it should be noted that, normally, matters are listed for conciliation and arbitration in the Commission for three-hours only).
Meanwhile, in preparation for the various conciliation and arbitration hearing dates, both sides had filed multiple Applications to Admit Late Documents. The first was filed on 11 February 2014 and the last on 18 December 2014. In all, the parties filed 22 Applications to Admit Late Documents. In a tribunal where parties are required to file all relevant documents with the Application to Resolve a Dispute or the Reply (see Pt 10 of the Workers Compensation Commission Rules 2011), that was completely unacceptable.
In summary, by the end of 2014, with the consent of the parties, the Commission had listed the matter for arbitration on three separate dates: 23 June 2014, 24 July 2014 and 18 November 2014.
On 5 January 2015, TurksLegal wrote to the Commission by email, requesting that the hearing on 19 January 2015 be vacated because the worker’s sentencing hearing for the criminal charges was listed on 16 January 2015. After seeking the view of the worker’s solicitor, who opposed the matter being adjourned, and after contacting the Arbitrator, who advised that if the worker did not consent to the vacation of the hearing date the matter would proceed as scheduled, Mr Funnell advised by email, dated 13 January 2015, that the matter would proceed on 19 January 2015.
On 19 January 2015, Mr Morgan again appeared for the appellant and Mr Stockley again appeared for the worker. Mr Morgan made no application for an adjournment. Neither side sought leave to call any oral evidence, but each side made lengthy submissions on the issues identified above.
In a reserved decision, delivered on 12 May 2015, the Arbitrator found in favour of the worker on all issues. Consistent with the Arbitrator’s decision, the Commission issued a Certificate of Determination on 12 May 2015 in the following terms:
“1.Respondent to pay the applicant weekly payments compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (as it was prior to the 2012 Amendments) at the maximum statutory rate, as adjusted, for a single worker and 2 dependant [sic] children as follows:
(a)For the period 6 April 2013 to 14 April 2013 at the rate of $636.40 per week
(b)For the period 24 April 2013 to 16 April [sic] 2013 at the rate of $636.40 per week
(c)     For the period 31 May to 1 June 2013 at the rate of $636.40 per week
(d)     For the period 9 June 2013 at the rate of $636.40 per week
(e)     For the period 23 June 2013 at the rate of $636.40 per week
(f)For the period 13 September 2013 to 19 September 2013 at the rate of $636.40 per week
(g)For the period 12 December 2013 to 18 December 2013 at the rate of $643.30 per week
(h)For the period 1 February 2014 to 2 February 2014 at the rate of $643.30 per week
(i)     For the period 16 March 2014 at the rate of $643.30 per week
(j)     For the period 24 April 2014 $651.60 per week
(k)For the period 30 April 2014 to 30 September 2014 at the rate of $651.60 per week
(l)For the period 1 October 2014 to 31 March 2015 at the rate of $659.90 per week
(m)For the period 1 April 2015 to date and continuing a[t] the rate of $668.30 per week
2.Award for the applicant pursuant to section 60 of the Workers Compensation Act 1987.
3.The matter is remitted to the Registrar for referral to an Approved Medical Specialist pursuant to Part 7 Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of any whole person impairment resulting from psychological injury, with dates of injury noted as: 7 December 2006, 19 June 2012, and, 5 April 2013.
Noted that the documents to be made available for consideration by the Approved Medical Specialist are:
(a)The Application (as amended - to include claims under s66 and s67) and the attached documents.
(b)Applications to Admit Late Documents and attached documents filed on behalf of the applicant, dated:
(i)     13 September 2013,
(ii)     11 February 2014,
(iii)    21 May 2014,
(iv)    3 June 2014,
(v)     24 June 2014 (wages schedule),
(vi)    5 September 2014,
(vii)   3 October 2014,
(viii) 8 October 2014,
(ix)    23 October 2014,
(x)     3 November 2014,
(xi)    14 November 2014,
(xii)   25 November 2014,
(xiii) 17 December 2014.
(c)     Reply and attached documents
(d)Applications to Admit Late Documents and attached documents filed on behalf of the respondent, dated:
(i)     14 January 2014,
(ii)     6 February 2014,
(iii)    19 June 2014,
(iv)    24 July 2014,
(v)     14 August 2014,
(vi)    31 October 2014,
(vii)   7 November 2014,
(viii) 14 November 2014
(ix)    25 November 2014 (including wages schedule).”
By consent, the Commission issued a further Certificate of Determination on 15 July 2015 in the following terms:
“1. The respondent is to pay the applicant’s costs as agreed or assessed.
2.Costs certification: The claim involved a complexity of fact and law such that I certify the matter complex with a 30% uplift in costs applicable to the parties pursuant to Item 4 Table 4 of Schedule 6 of the Workers Compensation Regulation 2010.”
The appellant has challenged the Arbitrator’s determinations.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

FACTUAL BACKGROUND

The worker was born in 1973 and started work with the appellant in 1992.
As a result of events at work between 2005 and 7 December 2006, the worker suffered a psychological injury. Though Employers Mutual has conceded that the worker suffered that injury, to understand the context of the claim, and the issues on appeal, it is appropriate to consider this injury (and its consequences) in detail.
The 2006 injury resulted from an incident in January 2005 when the worker reported a fellow officer for having taken a fire truck for a joy ride with three friends. After an investigation, the fire officer involved, who had “gang associations”, was dismissed. The matter was reported in the press and the worker was called a “whistle blower”. This led to the worker being harassed, alienated, bullied, and intimidated, with threats of physical violence against him and his family. A colleague reported to the worker that another fire officer, who was reportedly a member of a notorious gang, had made threats against the worker.
The worker saw a psychologist the day after the incident but did not stop work until 23 June 2005, when he saw a psychologist through the appellant’s Employment Assistance Program. On 21 July 2005, the worker saw Dr Dinnen, a senior consultant psychiatrist, for anxiety and sleep disturbance. Dr Dinnen considered that the worker presented with features of a reactive anxiety disorder with features of an acute stress reaction. He diagnosed the worker to have a chronic adjustment disorder with anxiety and depressed mood.
The worker returned to work on 26 July 2005 and continued his normal duties. He saw Dr Dinnen again in August 2005 and on 1 November 2005. At the November 2005 attendance, Dr Dinnen found the worker to be tense and emotionally labile. The worker talked of a recent industrial relations case where he had been cross-examined and had been the subject of adverse media publicity. He had been fully exonerated, but was still the subject of rumour and was not receiving a great deal of support from senior officers. Dr Adams, the worker’s general practitioner, had certified him unfit until the end of November 2005.
At review with Dr Dinnen on 7 December 2005, while the worker was still on stress leave and unfit for work, the worker recounted that he had been confronted by one of his antagonists, a work colleague, who was reportedly a member of the “Bra Boys”, who had threatened his life some months previously. Further, the Industrial Relations Commission had reinstated one of the fire officers who had been dismissed for using the fire truck in January 2005. The worker returned to work at the end of February 2006 and saw Dr Dinnen regularly for supportive psychotherapy until September 2006.

The worker saw Dr Dinnen on 20 February 2007 when he described a range of workplace stressors. He was under threat of having to work with his main antagonist and was very agitated and anxious, though was still at work. As a result of this stress, the worker experienced sleep disturbance, intrusive thoughts, anger, depression, anxiety, loss of libido, and increased drinking. After taking leave, he continued work, but required a great deal of support.
On 2 August 2007, further problems had arisen at work with the suggestion that his antagonist was about to be transferred to the station where the worker was working. The worker took a couple of days off work and saw Dr Dinnen, who recorded that the worker’s symptoms had exacerbated markedly. Dr Dinnen certified the worker to be unfit for one month, after which the worker took three weeks’ holidays. Things improved markedly when he was transferred to Bondi Fire Station from 4 October 2007.
Dr Dinnen continued to see the worker regularly (every three months or more frequently if an issue caused increased symptoms) for ongoing supportive psychotherapy management of his chronic adjustment disorder with anxiety and depressed mood, though no significant stressor occurred for most of the time that the worker was at Bondi. From time to time, medication (Cipramil, an antidepressant, and Valium, an anti-anxiety drug), was used to supplement the psychotherapy, though no long-term use was required. During this time, the worker married and had a family.
At 4.15 pm on 19 June 2012, while at Bondi Fire Station, the worker received an internal phone call via the Brigade PABX. The caller taunted the worker about a transfer to Redfern Fire Station, laughing at him, swearing at him, mocking him and then slamming the phone down when the worker asked who was calling. The worker believed this call showed that his peers perceived a transfer to Redfern as a “penalty shift”. He received another call from another firefighter on 20 June 2012 informing him of the transfer. An Inspector Reilly met the worker at 10.30 am that day and told him of the transfer.
Dr Dinnen saw the worker urgently on 20 June 2012 and certified him unfit because of his obvious distress. Dr Dinnen wrote to the Commissioner of NSW Fire and Rescue on 25 June 2012 stating that, in the interest of the worker’s current and future mental health, it was essential that he remain in a Fire Station that he found supportive and appropriate, where he is given respect and authority. Dr Dinnen fully supported the worker’s request that he be allowed to stay at Bondi, in the interests of his mental health. The worker saw Dr Dinnen again on 25 June, 2 July, 18 July and 2 August 2012, when the matters seemed to settle to some degree. (Dr Adams certified the worker unfit from 20 June 2012 to 22 June 2012 and from 26 June 2012 to 4 July 2012).
In a report addressed to Employers Mutual, also dated 25 June 2012, Dr Dinnen identified the worker’s current symptoms to be “anxiety, sleep disturbance, excessive worry, fearfulness, feelings of being treated unfairly, apprehension about conflict and discrimination, and subjective feelings of ongoing work place harassment”. These symptoms were the same as those that caused the worker’s presentation in 2005. The diagnosis was also the same, namely chronic adjustment disorder with anxiety and depressed mood. There were no other (non-work) factors that adversely impacted upon the worker’s psychological condition. He had a happy and stable home and personal life. In a later report (dated 2 October 2014), Dr Dinnen said that the incident on 19 June 2012 led to a “severe exacerbation” of the worker’s pre-existing condition.
Significantly, Dr Dinnen felt that the worker would need ongoing treatment if he was to remain in his job with the appellant. The risk of further harassment, as the worker perceived it, and work stress, was that his condition could deteriorate and render him unfit for employment. In Dr Dinnen’s view, if the worker were medically retired, he would encounter difficulties in finding alternative employment, particularly in light of his ongoing anxiety condition. The worker had been taking Valium, but because of the current crisis, Dr Dinnen said that he may arrange for him to resume Cipramil as well. The continuing treatment allowed the worker to remain employed. Without it, Dr Dinnen felt that he would have been medically retired long ago, and his condition would have been much worse.
The worker successfully appealed against the proposed transfer and remained at Bondi. He took accrued leave from about 7 December 2012 until 5 April 2013. He saw Dr Dinnen on 2 January 2013, two months after his previous consultation, and he seemed to be coping with the situation at work.
On 6 April 2013, the day after the worker returned from leave, Inspector Reilly spoke to him, in the presence of Station Officer Turnbull, and told him he needed to get ready to be transferred (to Redfern). The worker immediately saw Dr Adams, as he felt that he was being bullied, harassed and intimidated on his first day back after extended leave. Dr Adams issued a WorkCover certificate certifying the worker unfit, but noted, as he did in all his certificates, the date of injury to be 13 January 2005, the date on which the worker reported a colleague for unauthorised use of a fire truck. While off work, the worker was ruminating about the events and what people were saying about him being transferred to Redfern. He had sleepless nights and was prescribed Zoloft (an antidepressant), Temazepam and Valium.
The worker returned to work in mid April 2013, though he did not feel as though he was in a fit state to return. He was still suffering nightmares, panic attacks, sleeplessness, and paranoia as to why Inspector Reilly was persisting with a transfer when it had only recently been decided (on the worker’s last day in December 2012) that a transfer at that time was harsh, unfair, and unreasonable.
On 22 April 2013, Superintendent Stathis, Inspector Reilly and Station Officer Turnbull approached the worker without prior warning. Superintendent Stathis said that he had decided to transfer the worker to Redfern, but to “A” platoon, not “B” platoon, which was relevant to the shifts the worker would work and would take into account the worker’s child care arrangements. The worker saw Dr Adams after his shift, as he felt he was being victimised and intimidated. Dr Adams certified him unfit from 24 April 2013 to 30 April 2013.
On 24 April 2013, the worker phoned Dr Dinnen and advised that he was to be transferred to Redfern, which he viewed as a penalty or punishment. Dr Dinnen saw the worker on 30 April 2013, noting that he was not coping and obviously unfit for work. After further time off, the worker returned to work, at Redfern, on a date in late May 2013. He saw Dr Dinnen on 5 June 2013, stating that he was struggling and that his symptoms were still troubling him.
At this stage, the middle of 2013, Dr Dinnen felt that the worker was still suffering from the illness that he had in July 2005, namely a chronic adjustment disorder with anxiety and depressed mood which was reactive to environmental stress, “specifically work place problems of bullying, harassment and victimisation”. He had a capacity for work, but it fluctuated from day to day.
Dr Dinnen felt that the transfer to Redfern had caused a “marked exacerbation” in the worker’s symptoms and caused some periods where he had been incapacitated for work. He felt that the worker would be best served by being posted to a station close to his home, such as Bondi or Randwick, where he would be given respect and authority in accord with his 20 years’ service in the Fire Brigade. In his October 2014 report, Dr Dinnen said that the worker “was always brittle and again worsened severely after being told in April 2013 he was definitely to be transferred to Redfern”.
Prior to being charged on 22 April 2014, the worker had further days off, because of his psychiatric condition. They were said to be 9 June 2013, 23 June 2013, from 13 September 2013 to 19 September 2013, from 12 December 2013 to 18 December 2013, 1 and 2 February 2014, and 16 March 2014. WorkCover certificates from Dr Adams cover most of these days, though the dates in the certificates do not accord precisely with the dates claimed in the Amended Wages Schedule filed on 25 June 2014. (Neither side has made any submissions on this discrepancy.)
At review on 3 March 2014, Dr Dinnen found the worker to be struggling. The worker had been talking, in recent times, of his desire to cease work, as he felt he could no longer go on, and what the consequences would be if he were to cease work because of his psychiatric condition.
On 7 March 2014, Dr Dinnen wrote to Employers Mutual in response to an Injury Management Plan dated 20 February 2014 (not in evidence). He said he had last reviewed the worker on 20 January 2014 (this seems to be an error, as in a later report Dr Dinnen referred to having seen the worker on 3 March 2014). He said that, most of the time, the worker was coping well with his work at Redfern. He had the occasional day off due to work related psychiatric symptoms, but, for the most part, Dr Dinnen was pleased that the worker’s condition was stable.
Dr Dinnen felt that the worker should maintain treatment, his current regime being a low dose of Efexor daily and Valium as required. The low dose provided some symptom relief but did not cause him to be too sedated. Dr Dinnen sought authority to continue seeing the worker for ongoing management at a rate of about five or six times per year, assuming there was no sudden deterioration in his condition.
Dr Adams certified the worker unfit for work on 16 March 2014, because of a “severe anxiety and depression, acute exacerbation”. Again, Dr Adams identified the date of injury as 13 January 2005. Dr Adams thought the worker would be fit for his pre-injury duties from 17 March 2014.
On 22 April 2014, the worker was charged with having supplied a prohibited drug on 7 March 2014. In a certificate dated 26 April 2014, Dr Adams certified the worker unfit from 24 April 2014 to 26 April 2014, again because of a “severe anxiety and depression, acute exacerbation”, but fit from 27 April 2014.
Dr Adams saw the worker on 26 April 2014. The doctor’s typed clinical notes record:
“feeling v depressed past few days
         no new stressors
         states no home problems
         await review Dinnen
         Does appear significantly depressed”
Dr Adams certified the worker unfit from 30 April 2014 and he has not returned to work since.
The worker saw Dr Dinnen “urgently” on 1 May 2014. He said he had been off work, certified unfit by Dr Adams, from a few days previously. He said that he could no longer continue at work and he saw ceasing work permanently as something that was quite likely. Dr Dinnen encouraged him to take time to think about his situation, and to see if there would be any improvement in how he was feeling. Dr Dinnen saw the worker, again urgently, a few weeks later when the worker talked about the matters before the court to do with “allegations of drug use and supply” (the charges in fact only related to the supply of a prohibited substance).
On 20 May 2014, the worker saw Dr Kaplan, forensic psychiatrist, at the request of Employers Mutual. In his report of the same date, Dr Kaplan diagnosed the worker to be suffering from a Generalised Anxiety Disorder, a condition that occurs in constitutionally predisposed individuals with no indication in the literature that it occurs on the basis of external stressors, such as work disputes. He said that it was not possible to show that the worker had a condition caused by his injury in 2005 and his work with the appellant was not a substantial contributing factor to his condition. He conceded that the worker most likely had an Adjustment Disorder in 2005, which “resolved within several years”.
In his October 2014 report, Dr Dinnen recorded that he had seen the worker on several occasions in the second half of 2013 and on 20 January, 3 March, 1 and 14 May, 30 July and 25 August 2014. Throughout the previous 12 months (presumably the 12 months up to August 2014), Dr Dinnen had seen the worker’s attitude gradually deteriorate. He had become more pessimistic, more anxious, and less able to motivate himself to continue in the workplace. The worker saw his employer as being disinterested in his welfare, or even to the extent of being harmful.
At review in July and August 2014, Dr Dinnen recorded that the worker’s condition was unchanged. He was as anxious and depressed as Dr Dinnen had seen him over the years that he had known him. He was angry, frustrated, expressed feelings of desperation and hopelessness and was fearful of his future. As at August 2014, Dr Dinnen felt that the worker continued to suffer from a chronic adjustment disorder with anxiety and depressed mood, which was the condition that was present when he first saw him in July 2005. Dr Dinnen said that the condition was due to events in the workplace.
Dr Dinnen felt that Dr Adams was “quite correct” in certifying the worker unfit for work in April 2014. It was unclear to Dr Dinnen if the worker would recover to the extent that he could resume employment. He felt that the worker had done extremely well to continue to work in a productive fashion throughout the years “despite his chronic psychiatric illness and circumstances in the work place which have manifestly have [sic] not always been favourable up until the present time”.
Dr Dinnen referred to the worker’s attendance on Dr Adams on 25 April 2014 (in fact the worker saw Dr Adams on 26 April 2014), with the comment “I am over it all and I feel nauseated and I feel like Fire and Rescue NSW have broken me”. This statement came from the worker’s statement of 23 May 2014, where he said that he took carer’s leave on 24 April 2014, however, it was the depression that was affecting his ability to work and he saw Dr Adams, who suggested that he see Dr Dinnen. The worker added:
“8. I cannot cope with going to work. I continuously think of the way that I have been treated and this cause[s] sleepless nights & nightmares (if I do get any sleep).
9. The incident in 2005 keeps coming back to mind and the continual way in which they were treating me, including harassment, bullying and the transfer.
10. Since 26 April 2014 I have been unable to consider even trying to get back to work and I have been in receipt of treatment from my general practitioner and counselling sessions.”
In relation to the supply of prohibited substances and eventual criminal charges, and whether those matters had “in any way contributed to any incapacity for work” that Dr Dinnen otherwise identified, Dr Dinnen said that the recent criminal investigation had “aggravated this pre-existing condition”. He added that the worker had received appropriate legal advice, was currently on bail, and that this had added to his stress but had not caused the condition, which continued. In Dr Dinnen’s view, the worker would have been able to deal with the police investigation “without too much trouble had he not been suffering from an ongoing psychiatric disorder for the past ten years or so”. He “believe[d] [the worker’s] continuing incapacity for work [was] due to the work related psychiatric disorder throughout these years”.
On 29 September 2014, the worker saw Dr Gertler, consultant psychiatrist, for a medicolegal assessment at the request of his solicitors. In his report of 30 September 2014, Dr Gertler recorded a history that is generally consistent with the summary set out above. He recorded that the worker attempted to cope at Redfern for approximately one year. However, he was subjected to further harassment and was “excluded by the staff”. He was generally isolated and subjected to some bullying.
Dr Gertler said that, in April 2014, the worker again found it difficult to cope and was placed on sick leave. He added that, at that time, the worker was arrested and charged with a drug offence. At the time of the arrest, the worker was with an acquaintance who had provided support in the past but who was apparently a drug dealer. The worker was appealing against the charges, but the case had not come to court. The worker complained of marked sleep disturbance, variations in his weight, a “terrible” memory, being irritable, depressed and lacking in motivation. He continued to ruminate about the work situation and the “culture of bullying”.
Dr Gertler diagnosed the worker to have a chronic adjustment disorder with anxious and depressed mood, which “developed on the basis initially of the incident of 17 [sic] January 2005 but subsequently other incidents in which he was harassed, threatened and discriminated against by other officers of the NSW Fire Brigade”. The disorder had fluctuated in intensity, depending on the occurrence of incidents of harassment or bullying. There have been periods of varying lengths in which the worker’s psychiatric condition has been “relatively stable but has never resolved completely”.
Dr Gertler thought that the worker was incapable of working in any capacity “because of his level of agitation, his anxiety, social withdrawal, and preoccupation with the various incidents which took place over the past nine years in his employment”. The worker’s absences from work to date appeared to Dr Gertler to have been reasonable and necessary as a means of removing him from a situation of increased stress, which was affecting his ability to function in the workplace.
Dr Gertler added that he was aware that, in April 2014, the worker was charged with the supply of a prohibited substance. He said that “[t]his has only further increased his level of anxiety and depression. This more recent event has contributed, in my opinion, to the worker’s incapacity for work”.
On 6 October 2014, Dr Kaplan provided a supplementary report, addressed to TurksLegal. He noted that the criminal charges on 7 March 2014 (the charges were not in fact laid until 22 April 2014, but related to events on 7 March 2014) were not disclosed to Dr Adams, who recorded, on 26 April 2014, “no new stressors”. In answer to the question, “[d]o you believe that these non-work-related stressors have impacted on the worker’s psychological condition?” Dr Kaplan wrote “[y]es. These would be substantially more distressing and stressful than his stated concerns about his work dispute at the time”.
Dr Kaplan’s report has not accurately recorded the next question put to him. The question and answer read:
“If yes, do you believe that the worker’s alleged incapacity for work as a result of psychological injury is partly or wholly attributable to [sic]? Please provide your medical rationale.
Noting the serious legal charges that he faces, the non-work-related factors stemming from 7 March 2014 must be the major cause of [the worker’s] inability to work.”
Dr Kaplan added that the information provided (presumably relating to the criminal charges) did not change the findings expressed in his first report.
Dr Kaplan provided a further report on 14 November 2014, addressed to Employers Mutual. In response to a question as to the “ongoing cause” of the worker’s Generalised Anxiety Disorder (which Dr Kaplan had diagnosed in his first report), Dr Kaplan said that a Generalised Anxiety Disorder is a condition that “occurs in constitutionally predisposed individuals” and the evidence that it arises in response to stress was “limited”. He added that, more commonly, affected individuals “tend to blame external factors for their condition”.
Dr Kaplan did not accept that the worker suffered from a psychological condition from the transfer to Redfern. On the question of the cause of the worker’s incapacity since 30 April 2014, and current incapacity, Dr Kaplan said that “[t]he non-work-related factors ([the] laying of criminal charges) must be the major cause of [the worker’s] inability to work”. As the worker had not suffered a work-related injury, Dr Kaplan said there was no whole person impairment to assess. Alternately, it would be nil. He declined to apportion “the rating between any work-related incidents in 2005/6, the transfer in 2012/3 2013 [sic] & any non-work related incidents in 2014”, because it was “not relevant” as the adjustment disorder that arose from work had “resolved”.

THE ARBITRATOR’S DECISION IN SUMMARY

The Arbitrator found in favour of the worker on all issues. Essentially, he accepted the evidence from Dr Dinnen that the worker’s original psychological injury never completely resolved and that it continued to play “a significant role in affecting [the worker’s] ability to engage in the workplace over the years and perform his duties in a healthy or consistent and robust way” ([29]). The Arbitrator was satisfied that, from time to time since 2006, the worker had experienced work events that he has perceived as bullying and harassing behaviour which served to exacerbate or aggravate his underlying condition.
Applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), and noting that an injury can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros(Wholesale) Pty Ltd (1979) 53 WCR 167; Calman v Commissioner of Police [1999] HCA 60, 19 NSWCCR 40 (Calman); Parmalat Australia Ltd v Cheadle [2008] NSWWCCPD 39), the Arbitrator was satisfied that the worker’s psychological injury/condition from the accepted injury in 2006 resulted in the worker having intermittent periods of total incapacity for work from 6 April 2013 to 30 April 2014 and thereafter on an extended basis.
The Arbitrator rejected the appellant’s argument that the worker’s arrest and charging in relation to drug supply, and the ensuing court proceedings, were the sole or predominant cause of the worker’s incapacity after 30 April 2014. He said (at [43]) that, in accepting Dr Dinnen’s evidence, it was apparent that the worker’s incapacity was unlikely to have arisen in the absence of the underlying work related psychological injury/condition.
While the abusive phone call on 19 June 2012, and the matters involving communication of the impending transfer to Redfern, and the police charges may have been the proximate and immediate causes of periods of incapacity, they “merely aggravated or exacerbated [the worker’s] underlying psychological work related injury condition, a condition which continued to exist notwithstanding that immediately before the particular incidents [the worker] had been working and may have been able to cope without manifesting symptoms or only reduced symptoms” ([43]).
Having regard to the findings made concerning the ongoing effects of the 2006 psychological injury resulting in the worker’s incapacity for work, the Arbitrator said that it was not necessary for him to determine whether the incidents or events of 19 June 2012 or 5 April 2013 “would each separately constitute individual injuries pursuant to the 1987 Act giving rise to incapacity” ([44]). Nevertheless, looked at separately, the Arbitrator was satisfied that those incidents were examples of work events that resulted in significant aggravations and exacerbations of the pre-existing psychological injury/condition that resulted in the worker having an incapacity for work and requiring medical treatment. He was also satisfied that the employment was a substantial contributing factor to those injuries.
Dealing with the appellant’s defence under s 11A, relating to the transfer to Redfern, the Arbitrator said (at [45]) that the abusive phone call on 19 June 2012 was conceded not to be employer action or proposed action with respect to transfer and, in any event, it was not reasonable action.
With regard to the events on 5 April 2013, the Arbitrator said (at [46]) that, given the worker’s longstanding ongoing underlying psychological condition, he was not satisfied that the stressors relating to the transfer process were the “principle or main” cause or “wholly or predominantly” the cause of the worker’s psychological injury, which had been in place since at least 2006.
The Arbitrator added (at [48]) that he had not been taken to any evidence that, in deciding to transfer the worker, and communicating that decision to him, the appellant had properly considered the contents of Dr Dinnen’s report of 25 June 2012 addressed to it and dealing with concerns that Dr Dinnen had about a possible transfer of the worker to Redfern.

ISSUES IN DISPUTE ON APPEAL

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     failing to grant the appellant an adjournment (adjournment);
(b)     denying the appellant procedural fairness by failing to take into account a significant and relevant consideration and properly adjudicating upon the worker’s criminal conduct (failing to adjudicate on the worker’s criminal conduct);
(c)     failing to provide adequate reasoning as to why he preferred the worker’s experts over the opinions of Dr Kaplan (preferring the worker’s experts/causation);
(d) denying the appellant procedural fairness by ignoring statements relied upon and documentary evidence in support of a defence under s 11A of the 1987 Act and failing to provide adequate reasoning as to his rejection of that defence (s 11A), and
(e)     denying the appellant procedural fairness by failing to disclose adequate reasoning as to the issue of causation in determining the injuries not admitted and incapacity (preferring the worker’s experts/causation).
Before turning to the parties’ submissions, there is a preliminary matter concerning “new evidence” that requires comment.

NEW EVIDENCE

In his submissions in support of the appeal, counsel for the appellant, Mr David Baran, who did not appear on any of the arbitration dates, submitted that the appellant was not in possession of new evidence but it would seek leave to issue a Direction for Production on the NSW Police requiring production of the whole brief of evidence, agreed facts, transcript and remarks on sentence in respect of the conviction of the worker for a serious indictable drug offence to which he pleaded guilty on 16 April 2015.
At the date of this decision, the Commission has received no application for leave to issue a further Direction for Production on the NSW Police. Had such an application been made, it would have been refused. Section 352 appeals against decisions by Arbitrators are restricted to the identification and correction of error (s 352(5)). They are not a review or new hearing. It follows that, as there is no application for the admission of fresh evidence or evidence in addition or substitution for the evidence received at the arbitration, as is permitted (by leave) under s 352(6), the question of “new evidence” does not arise.

GROUND 1: ADJOURNMENT

Submissions

Mr Baran submitted that, having become aware the worker was to be sentenced on 16 January 2015, the worker and the police would be in a position by 17 January 2015 to supply the appellant with “those facts that were agreed before the sentencing judge, the exhibits, references/testimonials and a record of the remarks on sentence”. He said that this was important to a fair hearing of the issues in the case (before the Commission), as the appellant would have sought to argue that, if there was any psychological injury connected to employment, the connection (between the injury and the incapacity) had been broken at the time of arrest and charge or as a consequence of a determination of guilt and a sentence.
Mr Baran contended that the appellant “should not have had to conduct the case based on hypotheticals” and was “entitled to understand what role psychological injury or psychological illness played in either (a) the commission of the offences or (b) if no role then whether [the worker] sought to put a submission before the sentencing judge that the commission of the offences and his arrest and conviction were the cause of ongoing psychological injury or any exacerbation or aggravation of a pre-existing injury”.
Mr Baran said that TurksLegal wrote to the Commission on 5 January 2015 “due to the fact that” the worker had adjourned his sentencing hearing from 16 January 2015 until 16 April 2015, thus depriving the appellant of the ability to thoroughly examine and consider all of the materials relied upon for the purposes of sentencing. He noted that Mr Funnell responded on 13 January 2015 that the Arbitrator had advised that, given that the worker opposed the vacation of the hearing, the matter would proceed as scheduled on 19 January 2015 at 9.30 am as a full day hearing.
Mr Baran argued that the Arbitrator was “bound in principle to determine” whether or not the application was proper, whether its refusal would seriously prejudice the appellant and not prejudice the worker, the duration of the adjournment, and whether, if the matter proceeded to judgment, wrongful refusal of an adjournment would exclude evidence that would be material to the resolution of the disputes. He further contended that the administration of justice demanded that both the worker and the appellant be afforded the opportunity to present their respective cases.
Mr Baran submitted that an appellate court should intervene in the exercise of a discretion to refuse an adjournment if the refusal resulted in a denial of justice to the party seeking the indulgence and would not result in an injustice to the other party. An adjournment that, if refused, would result in a serious injustice to the party seeking it, should only be refused if that is the only way that justice can be done to another party in the action (Sali v SPC Ltd (1993) 116 ALR 625 at 628–9; Bloch v Bloch (1981) 55 ALJR 701 at 703).
It was acknowledged that “teleconferences were adjourned on a number of occasions due to issues arising out of [the worker’s] criminal proceedings, arrest and charge”. However, Mr Baran said that “the indulgence being sought was a brief one” and the failure to grant the adjournment deprived the appellant from placing (before the Commission) the material that was before the sentencing judge, “including the prosecution materials ultimately relied upon and admitted by [the worker] before [Dr] Kaplan and for that matter the treating psychiatrist, Dr Dinnen,” and Dr Gertler.
Mr Baran submitted that, at the arbitration, Mr Morgan sought to cross-examine the worker, but due to “concerns arising out of his pending sentencing hearing did not proceed but rather a concession was properly made that no adverse comment would be made based on the failure to cross-examine”.
Last, Mr Baran said that, upon the filing of the appeal, the appellant would seek a Direction for Production against the NSW Police of the entire prosecution brief. He said it was understood that the worker did not receive a custodial sentence. This made the application for an adjournment “even more compelling” because a custodial sentence was not imposed “obviously because of certain mitigating/special circumstances which, if they involved matters of medical evidence, would have been critical to a proper determination of [the worker’s] claim and the [appellant’s] defence of that claim before the arbitration”.

Discussion and findings

Before considering the circumstances of the present case, it is appropriate to make some general observations about matters of practice and procedure, such as applications for adjournments. Appellate courts exercise particular caution in intervening in such decisions (per Beazley JA (as her Honour then was) (Giles and Whealy JJA agreeing) in Hamod v State of New South Wales [2011] NSWCA 375 (Hamod) at [132]).
Beazley JA further explained, at [134]–[136]:
“134. …The court at first instance must be free to exercise its discretion in matters of practice and procedure as the court considers necessary, having regard to the circumstances of the case. However, the discretion so vested in the first instance court is subject at all times to the primary obligation of ensuring a fair trial to the parties to the litigation.
135. The court’s concern with a fair trial is not divorced from the other considerations that the court has in the administration of justice. In particular, the concept of a fair trial is one that has regard to the interests of all parties to the suit. Nor, in this State, is it divorced from the court’s statutory obligation to ensure the just, quick and cheap resolution of the real issues in the dispute or proceedings: the Civil Procedure Act, s 56(1). See also Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at 182-183, 200-201, 205, 210-211, 217-218.
136. For these reasons, before an appellate court will interfere with a discretionary judgment in a matter of practice and procedure, the question whether injustice flowed from the order appealed from will be a relevant and necessary consideration: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. See also Bloch v Bloch [1981] HCA 56; 180 CLR 390; Mudginberri Station Pty Ltd v Australasian Meat Industry Employees' Union and Others (1986) 12 FCR 10.”
Referring to Mudginberri Station Pty Ltd v Australasian Meat Industry Employees’ Union (1986) 12 FCR 10, Beazley JA observed (at [137]) that a mere difference of opinion held by the appellate court as to the outcome of a discretionary decision on a matter of practice and procedure was insufficient to attract appellate intervention. “Some error or unjust result needed to be demonstrated” (Hamod at [137]).
Her Honour quoted (at [138]) the following statement by Deane J in Squire v Rogers (1979) 39 FLR 106 at 113–4:
“The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: Conroy v Conroy [1917] 17 SR (NSW) 680 at 682 ... A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to ... the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.”
Applying the above principles to the present case, Mr Baran’s submissions cannot be accepted.
While it is correct that TurksLegal wrote to the Commission on 5 January 2015 seeking to have the arbitration date of 19 January 2015 vacated, its reason for doing so was not that stated by Mr Baran. The email from TurksLegal of 5 January 2015 said:
“I confirm that this matter is listed for hearing on Monday, 19 January 2015 at 9.30 am.
It has recently come to our attention that [the worker’s] sentencing hearing for unrelated criminal charges is listed on Friday, 16 January 2015.
Accordingly, the [appellant] requests that the hearing date be vacated and a teleconference be listed in its place.
The outcome of the sentencing hearing may impact whether settlement can be achieved, and whether the hearing can go ahead. A teleconference is appropriate because the parties will understand where they stand and whether [sic] is possible. If settlement cannot be achieved, an appropriate date on which the claim can be determined can be set. In my view, this is a better use of the Commission’s time and resources.
I look forward to your response.” (emphasis included in original)
After speaking with the Arbitrator, and seeking the attitude of the worker’s solicitor to the application, Mr Funnell wrote (by email) to both parties’ solicitors on 13 January 2015:
“I refer to the [appellant’s] email below dated 5 January 2015.
Arbitrator Brown has advised that, given that [the worker] opposes vacation of the hearing in this matter, the matter will proceed as scheduled on 19 January 2015 at 9.30 am for [a] full day hearing.”
Contrary to the implied suggestion in Mr Baran’s submissions, TurksLegal did not write to the Commission on 5 January 2015 “due to the fact that” the worker had adjourned the date of sentence. The email made no mention of the sentencing hearing being adjourned to 16 April 2015 and no mention of the appellant being deprived of the opportunity to examine and consider all the materials relied upon for the purposes of sentencing.
As previously noted, at the arbitration on 19 January 2015, Mr Morgan represented the appellant and Mr Stockley appeared for the worker. After announcing the appearances, the Arbitrator recorded that counsel had indicated that the matter had to proceed to arbitration. He said that the conciliation stage had identified many matters of agreement. He then listed the numerous Applications to Admit Late Documents relied on by both sides and admitted into evidence all documents attached to those applications. He then invited Mr Morgan to confirm the issues in dispute.
Significantly, Mr Morgan made no application for an adjournment and he raised none of the matters presented on appeal by Mr Baran. Mr Morgan said, “we’ve spent some time this morning considering whether oral evidence from [the worker] was appropriate in the circumstances” (T5.10). He understood that the worker had pleaded guilty with respect to some or all of the charges and was to have been sentenced on 16 January 2015, but the matter was adjourned. He said that Mr Stockley had indicated that he would object to the worker being cross-examined with respect to the matters with which he was charged, which Mr Morgan said was “understandable” (T5.24).
Mr Morgan then said, starting at T5.28:
“Given that this is the fourth occasion the matter has been listed, rather than the matter going over to a fifth hearing date, as I understand it my friend will not take the point with respect to submissions I make with respect to matters going to [the worker’s] credit, absent me putting those matters to [the worker] directly. It’s not the ideal scenario but given the very unusual nature of this particular claim, given again it’s the fourth time it’s been here in the Commission and what the objectives of the Commission are, the parties think that taking a pragmatic approach with respect to the having the matter dealt with and dispute resolved one way or the other.” (emphasis added)
After noting some further preliminary matters, the Arbitrator invited submissions.
Given the procedural history of this matter, set out at [6]–[25] above, given that Mr Morgan did not seek an adjournment and, in particular, given Mr Morgan’s statement that the parties were taking a “pragmatic approach with respect to having the matter dealt with”, Mr Baran’s submissions on appeal are, to say the least, somewhat surprising.
The adjournment of proceedings in the Commission is dealt with in Practice Direction No 2. That Direction must be considered in the context of the objectives of the Commission, which are set out at s 367 of the 1998 Act. Those objectives include, among other things, the provision of a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts, the reduction of administrative costs across the workers compensation system and the provision of a “timely service ensuring that workers’ entitlements are paid promptly”.
The Practice Direction highlights the fact that the Commission has a case management system that assists in the efficient management, conduct and resolution of matters. Where a matter has been allocated a date for conciliation and arbitration, all parties must be ready to proceed at the appointed time. The Direction states that the Commission will not adjourn proceedings unless it is demonstrated that one or more of the parties is/are likely to suffer an injustice if the adjournment is not granted. The Commission has a discretion to grant an adjournment other than in accordance with the Practice Direction, where procedural fairness in the instant case requires it.
The Commission listed the present matter for arbitration, with the consent of the parties given at various teleconferences, on 23 June 2014, 24 July 2014, 18 November 2014 and 19 January 2015. The email of 5 January 2015 advanced no proper basis for the arbitration date being vacated. It merely contended that the sentencing hearing “may impact whether settlement can be achieved, and whether the hearing can go ahead” and a “teleconference is appropriate because the parties will understand where they stand”. None of the matters raised by Mr Baran were mentioned in the email. More importantly, as previously noted, Mr Morgan did not seek an adjournment.

In the circumstances, the appellant has not come close to establishing any relevant error by the Arbitrator. That is because, on the information in the email of 5 January 2015, TurksLegal had not established any proper ground for the hearing date to be vacated. On the information in the email, and having regard to the history of the matter, the decision to refuse to vacate the hearing date involved no error.
Contrary to Mr Baran’s submissions, the prejudice to the worker, had the hearing again adjourned, would have been substantial. The resolution of his claim would have been delayed for a fourth time. As explained by French CJ in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5], “there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings”. Moreover, as his Honour further explained, the time of the court (and the Commission) is a publicly funded resource and inefficiencies in the use of that resource, arising from the vacation or adjournment of hearings, are to be taken into account.
Further, and significantly, because costs in the Commission are strictly regulated, with set fees regardless of the length of the hearing, the Commission has no power to order the appellant to meet the costs thrown away because of the adjournment, though it has the power to certify a matter as complex, which results in an uplift in costs of up to 30 per cent. (The Arbitrator made that certification in the present case.) Thus, the worker would have been severely prejudiced as to costs and because of the further delay in the resolution of the matter, if the hearing had not proceeded on 19 January 2015. That prejudice was especially relevant in the present case, given the protracted history of the matter.
The appellant was entitled to argue, and did argue, that the connection between the psychological injury and the incapacity had been broken by the time of the arrest and charge. It tendered evidence from Dr Kaplan on that very issue. It is difficult to see that anything that may have been put at the sentencing hearing would have added significantly to that issue. In any event, that was not a matter that was put to the Arbitrator, either in the TurksLegal email or by Mr Morgan. It is not an error for an Arbitrator not to deal with matters not raised (Brambles Industries Limited v Bell [2010] NSWCA 162 (Bell) per Hodgson JA (Tobias and McColl JJA agreeing) at [22] and McColl JA at [30], dealing with whether a Presidential member had erred in not dealing with a matter not argued).
The appellant did not conduct the case on the basis of hypotheticals. It was aware of the circumstances of the criminal conduct, that the worker had pleaded guilty, and it put those matters to its expert for comment. What role the worker’s psychological condition played in the commission of the offences was not relevant to the issues before the Arbitrator. Moreover, given the evidence from Dr Dinnen, it is difficult to see how the worker could reasonably have submitted to the sentencing judge that the criminal matters were the cause of an ongoing psychological condition, though they may have aggravated it.
Given the submissions in support of the application to vacate the hearing date, and given that the application was not renewed on the day of the arbitration, the Arbitrator was under no obligation to consider the issues of prejudice or any of the other matters raised by Mr Baran on appeal. TurksLegal did not suggest that the failure to vacate the hearing date would exclude evidence material to the resolution of the dispute. Clearly, it did not. I do not accept that the inability to place before the Arbitrator the material that was before the sentencing judge involved any injustice or unfairness to the appellant. The issues in each case were completely different. The appellant had every reasonable opportunity to present its case and did so.
Mr Baran’s statement that teleconferences had been adjourned “on a number of occasions” was a misleading representation of the procedural history of the matter. In fact, three previous hearing dates had been vacated, at least one at the request of the appellant, which was granted over Mr Stockley’s objection.
The submission that the indulgence being sought was a “brief one” was inaccurate. The email specified no time. In hindsight, it is likely the matter would have been adjourned for several months.
The submission that Mr Morgan “sought to cross-examine” the worker was also inaccurate. Mr Morgan said that Mr Stockley had indicated that he would object to the worker being cross-examined, which Mr Morgan conceded was “understandable” (T5.24). Mr Morgan did not apply to the Arbitrator for leave to cross-examine. He noted that, rather than having the matter go over to a fifth hearing date, thus conceding that a further adjournment was not sought, Mr Stockley would not take any Browne v Dunn (1893) 6 R 67 objection to his submissions about the worker’s credit.
Last, Mr Baran’s submission that a custodial sentence was not imposed “because of certain mitigating/special circumstances” was pure speculation and is entitled to no weight. In any event, even if it were correct, why the worker did not receive a custodial sentence was irrelevant to the issues before the Arbitrator.
In summary, the refusal to vacate the arbitration date involved no error and no injustice to the appellant. Had the arbitration been vacated, it would have caused significant prejudice to the worker, both as to costs and delay. This ground of appeal is not made out.

GROUND 2: FAILING TO ADJUDICATE ON THE WORKER’S CRIMINAL CONDUCT

Submissions

Mr Baran submitted that, in his reasons at [38], the Arbitrator “barely touches” on the expert opinions to the effect that the criminal charges aggravated the worker’s pre-existing condition. Though it is “picked up” again at [43], the Arbitrator does not take into account and deal with the competing opinions of Dr Kaplan as opposed to Drs Dinnen and Gertler, nor has he set out adequate reasoning and taken into account all of the allegations made by police in the covert operation, the draft agreed facts and the charges, and reconciled those matters with his preference for Dr Dinnen over Dr Kaplan.
Mr Baran argued that the criminal conduct was a significant consideration on the issues of incapacity, injury and causation, but “it is the reasoning regarding the criminal conduct and the failure to properly identify the stresses and strains under which [the worker] understandably would be labouring as well as the public exposure in the media which denied the [appellant] an understanding as to why [Dr] Kaplan’s opinion was inferentially rejected”.

Discussion and findings

Mr Baran’s submissions cannot be accepted.
Mr Baran has not explained how the Arbitrator denied the appellant procedural fairness, as has been alleged in this ground of appeal. Procedural fairness required only that each party be given “a reasonable opportunity to present his [or her] case” (Dean J in Sullivan v. Department of Transport (1978) 20 ALR 323 at 343). As explained earlier (see [117] above), the appellant had that opportunity.
As submitted by Mr Stockley, the worker’s criminal conduct was not an issue for determination by the Arbitrator and he was not asked to “adjudicate” on that conduct. The Arbitrator had to consider the fact that the worker had been charged with criminal offences and the effect of those charges in the context of the onset of the worker’s continuing incapacity. The Arbitrator largely, but not exclusively, determined that issue by reference to the medical evidence, which is discussed below.
The submission that the Arbitrator “barely touches” on the expert opinions to the effect that the criminal charges aggravated the worker’s pre-existing condition is incorrect. The Arbitrator summarised the evidence from the experts from [17], at page six, through to [24], at page 16. That summary included the evidence from Drs Dinnen, Gertler and Kaplan, all of whom commented on the relevance of the criminal charges. The Arbitrator’s analysis of the evidence commenced at [25], on page 17.
The submission that the Arbitrator did not “take into account” the competing opinions of Dr Kaplan, on the one hand, and those of Drs Dinnen and Gertler, on the other, is also incorrect. After reviewing the evidence, and expressly noting Dr Kaplan’s opinion, the Arbitrator concluded that, for reasons given, which are discussed further below, he preferred the evidence of Dr Dinnen, which was supported by, and consistent with, the evidence from Dr Gertler.
The Arbitrator expressly referred (at [35]) to Mr Morgan’s submission that the worker’s arrest and charging, and the ensuing court proceedings, were the sole or predominant cause of the worker’s incapacity after 30 April 2015. After a detailed review of the evidence and authorities, the Arbitrator did not accept that submission and determined that the 2006 injury “is causally related to, has resulted in,” ([35]) the worker’s total incapacity. That finding (discussed again at [159] below) was open on the evidence and involved no error.
The Arbitrator properly acknowledged that it may be that the stress and anxiety the worker experienced from being arrested and charged in 2014 would have contributed to aggravating and exacerbating the worker’s pre-existing psychological condition “to a degree which would have likely contributed directly towards his incapacity for work” ([37]). However, he added that the treating and expert medical evidence relied on by the worker supported a finding that his pre-existing work related psychological injury/condition “was the causal factor resulting in [the worker] not being in a position to cope with work and this was contributed to by the additional stress placed upon him consequent upon the arrest, laying of the charges, and related court processes” ([37]). This finding was open on the evidence and involved no error.
The Arbitrator (at [38]) expressly acknowledged Dr Dinnen’s evidence, that the recent police investigation had aggravated the worker’s pre-existing condition, and Dr Dinnen’s opinion that the worker would have been able to deal with the investigation without too much trouble had he not been suffering from an ongoing psychiatric disorder for the past ten years or so. The Arbitrator accepted Dr Dinnen’s opinion that the worker’s “continuing incapacity for work is due to the work related psychiatric disorder present throughout these years”. It was open to him to do so.
The submission that the Arbitrator’s failure to properly identify “the stresses and strains” under which the worker would be labouring denied the appellant an understanding as to why Dr Kaplan’s opinion was rejected is, for reasons more fully discussed below, untenable.

GROUNDS 3 and 5: PREFERRING THE WORKER’S EXPERTS/CAUSATION

Submissions

Mr Baran submitted that “[a]t the heart of his reasoning” the Arbitrator found that Dr Dinnen’s evidence carried greater weight compared to other doctors because the other doctors had far more limited time and recent involvement (with the worker). This constituted, so it was argued, a failure by the Arbitrator to “grapple with the intellectual exchange and undertake a thorough analysis such that the losing party … had a proper explanation as to why there was a preference of one expert over the others”.
Mr Baran contended that the intellectual and scientific issues raised by the experts required a proper adjudication, not a mere preference based on the amount of time that one expert spent with the worker as opposed to other doctors, such as Dr Kaplan, none of whom were the subject of serious challenge in terms of their expertise. The appellant was entitled to know the “proper scientific basis and analysis upon which Dr Dinnen was preferred as opposed to [Dr] Kaplan”.
Mr Baran referred to the submissions made by Mr Morgan at the arbitration. He referred to the following points made by Mr Morgan:
(a)     the worker worked at Redfern for 12 months, with things “continuing in much the same fashion as they had in the previous eight years with respect to consultations with Dr Dinnen and time from work” (T24.23);
(b)     on 26 April 2014, the worker gave Dr Adams a history that he was feeling very depressed over the past few days but there were “no new stressors” (T26.25);
(c)     Dr Adams issued a certificate on 16 March 2014 that the worker was fit for his pre-injury duties (from 17 March 2014) (T26.33);
(d)     after 17 March 2014, the next certificate from Dr Adams was that the worker was totally incapacitated from the date of that consultation and the certificate is post-dated from 24 April 2014 to 27 April 2014 (T27.10);
(e)     Dr Dinnen reported on 7 March 2014 that the worker was “coping well most of the time with his work at Redfern and has been there since April last year. He does have an occasional day off due to work-related psychiatric symptoms but for the most part I am pleased that his condition is stable” (T27.28);
(f)      in the history recorded by Dr Dinnen, the worker sought to downplay the significance of the charges (T28.24);
(g)     the worker saw Dr Kaplan in May 2014 but did not disclose what had happened involving the police in April 2014. He told Dr Gertler that for a year, he had attempted to cope with work at Redfern but was subjected to further harassment and was excluded by staff and he found it difficult to cope and was placed on sick leave. Dr Gertler recorded that “[i]t was at this time that he was arrested and charged with a drug offence” (T32.16);
(h)     “that Dr Dinnen’s reports over time had dissipated and that [the worker] had been working full-time as per his medical certificates and as per the clinical records of Dr Dinnen as at March of 2014” (this quote is from Mr Baran’s submissions, which were based on Mr Morgan’s submissions at T33.10–15), and
(i)      the worker cannot work as a firefighter because of criminal actions he took (T36.22).
Mr Baran contended that the objective facts were:
(a)     the worker had no prior criminal history;
(b)     the worker pleaded guilty to a serious indictable offence involving the supply of a prohibited substance;
(c)     inferentially, he has agreed to the essential elements of the offence as articulated by the police in their facts, and
(d)     when undertaking the supply activities of going to meetings, making phone calls, visiting the head of the syndicate’s house together with meetings with potential customers, it would defy logic and commonsense that the worker was labouring under some kind of a psychological injury.
Mr Baran submitted that the determination of causation had to involve a consideration of a break in the chain of causation, on the one hand, and the worker’s credibility on the other. The worker’s “thesis” was that, despite serious criminal charges, he was nevertheless still suffering from a psychological injury in 2005, the after effects of a “prank call” in June 2012 and a transfer to Redfern, where he worked for a year without any reported incident, none of which was affected to any material degree by the criminal charges. Such a contention, so it was argued, cannot be sustained.
Mr Baran then referred to Mr Morgan’s submission about significant credibility issues, especially the worker “downplaying” to his doctors the significance of the arrest and police action. To compound matters, Dr Kaplan’s views were not “reconciled by appropriate reasoning with those of Dr Dinnen and Dr Gertler”. Even more significant was the fact that there “is no adequate reasoning or proper adjudication as to why it was that the intervening police action accepted by [Dr] Kaplan as the cause of any ongoing incapacity was entirely rejected by the [A]rbitrator and the opinions of Dr Dinnen and to a smaller extent Dr Gertler preferred”.
In conclusion, Mr Baran submitted that there has been a significant denial of procedural fairness by the Arbitrator’s failure to provide adequate reasons and address the critical issue of causation, as referred to in the medical reports, the police documentation, the statements from the worker and the subsequent events.

Discussion and findings

I do not accept Mr Baran’s submissions. It is appropriate to consider first the general principles relating to the requirement to give reasons.
When considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443 (Beale)). The extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed) (Mifsud)). The obligation to give reasons “has to be considered in the light of the issues raised for consideration by the parties” (Bell per Hodgson JA (Tobias and McColl JJA agreeing) at [22]). The reasons must do justice to the issues posed by the parties’ cases (Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing)).
The relevant circumstances of the present case are that an Arbitrator’s statutory obligation is to give “[a] brief statement … setting out the Commission’s reasons for the determination” (emphasis added) (s 294(2) of the 1998 Act) and that proceedings are to be conducted with as little formality as proper consideration of the matter permits (s 354(1) of the 1998 Act). In Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [166], Sackville AJA (Ward JA agreeing) referred to both of these provisions (and the fact that the rules of evidence do not apply in the Commission) when considering if an Arbitrator had taken into account certain events in his assessment of the reasonableness of the employer’s conduct under s 11A, though the Arbitrator had not expressly referred to the events in considering the reasonableness issue. His Honour said that a fair reading of the Arbitrator’s reasons indicated that he did take the events into account, but considered (though it was not expressly stated by the Arbitrator) that they had little bearing on the reasonableness of the employer’s action.
When considering if an Arbitrator has complied with his or her obligation to give reasons, it is necessary to have regard to the overall sense and import of the reasons, read as a whole and without an eye attuned to the detection of error (Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167). In addition, courts should avoid an “overly pernickety examination of the reasons” and that the “focus of attention is on the substance of the decision and whether it addressed the ‘real issue’ presented by the contest between the parties” (per Kirby J in Roncevich v Repatriation Commission [2005] HCA 40 at [64]; 222 CLR 115).
As explained by Kaye AJA (Tate and Whalan JJA agreeing) in Woolworths Ltd v Warfe [2013] VSCA 22 at [131]:
“The adequacy of the reasons must depend upon the issues, and nature of the proceeding, in any individual case. In an appropriate case, reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated. Thus, as Neave JA and Beach AJA stated in Murray Goulburn Coop Co Ltd v Filliponi:
‘In some cases, the path of reasoning which led to the ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon [which] the decision was based.’” (footnotes omitted)
An Arbitrator has a duty to refer to the evidence relevant to the submissions advanced and the findings relevant to the conclusions reached. However, it is not a duty to refer to every submission and every piece of evidence (Huntsman Chemical Company Australia Pty Ltd v Narellan Pools Pty Ltd [2011] FCAFC 7 at [44]).
The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties (Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329 at [52], summarising Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 and citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, per Kirby P; at 280, per McHugh JA).

An Arbitrator does not have to make explicit findings on each disputed piece of evidence, “especially if the inference as to what is found is appropriately clear”, but “should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found” (Beale at 443). He or she should “do justice to the issues posed by the parties” (per McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59]).
The Arbitrator’s analysis started (at [25]) by noting there was an extensive amount of documentation admitted into the proceedings by both sides. He said that “all of the medical reports have been taken into consideration” ([25]). Numerous statements were in evidence from the worker and from employees of the appellant, but the Arbitrator said that he did not intend to repeat or refer to all the evidence in detail. He did not have to refer to all the evidence (Mifsud at 728).
The Arbitrator said that he had “careful regard to the medical evidence”, in particular the “comprehensive and detailed reports provided by Dr Dinnen concerning [the worker’s] psychological condition and fitness for work spanning over nine years” ([26]). He also had regard to the reports and WorkCover medical certificates and certificates of capacity provided by Dr Adams, who has been the worker’s treating general practitioner for 20 years.
The Arbitrator then said:
“27.In my view the opinions of Dr Dinnen in this matter as to causation and incapacity ought to be considered as carrying much greater weight as compared the medico legal professionals who have provided opinion in this matter who have had a much more limited and recent involvement. In particular I note that Dr Kaplan, who provided his medico legal opinion in medical reports (upon which the respondent relies) has only examined [the worker] on one occasion, on 20 May 2014.
28.I am satisfied that Dr Dinnen has had a close and ongoing involvement with [the worker’s] treatment and management and has also properly given consideration towards the impact of the various work and non work related stressors upon the applicant’s underlying condition. Most significantly, Dr Dinnen has been involved at a time before and after the April/May 2014 arrest and charging of the applicant in respect of drug supply. Dr Dinnen’s opinion and diagnosis also appears to be overall generally consistent with the views expressed by [the worker’s] general practitioner of over 20 years, Dr Adams, and also the medico legal opinion provided by Dr Gertler in his report dated 30 September 2014 to [the worker’s] solicitors.”
These paragraphs explained that Dr Dinnen’s opinions on causation and incapacity carried “much greater weight” ([27]) compared to the medicolegal experts in the case. That was because, the Arbitrator explained:
(a)     Dr Dinnen had a “close and ongoing involvement” ([28]) with the worker’s treatment and management;
(b)     Dr Dinnen considered the “impact of the various work and non work related stressors” ([28]) on the worker’s underlying condition;
(c)     Dr Dinnen’s opinion and diagnosis appeared to be “overall” ([28]) generally consistent with the views expressed by Dr Adams, the worker’s general practitioner for 20 years, and the medicolegal opinion of Dr Gertler, and, most significantly,
(d)     Dr Dinnen has been involved “before and after the April/May 2014 arrest and charging” ([28]) in respect of drug supply.
These findings were made in the context that Dr Kaplan had only seen the worker once, something to which the Arbitrator paid “particular” note (at [27]). These findings were all open on the evidence and disclosed no error. Thus, contrary to Mr Baran’s submissions, the Arbitrator did not simply prefer Dr Dinnen because he had more involvement with the worker compared to Dr Kaplan. The Arbitrator adequately explained his reasons for accepting Dr Dinnen’s evidence, which necessarily involved rejecting Dr Kaplan’s evidence.
The Arbitrator then (at [29]) noted, and accepted, the submission (by Mr Stockley) that the evidence supports the view that the worker’s original workplace psychological injury/condition has never completely resolved. He accepted that the worker has had improvements in his psychological condition, leading to periods of remission, followed by exacerbation and deterioration. He was of the view that the accepted 2006 psychological injury has continued to play a significant role in affecting the worker’s ability to engage in the workplace over the years and perform his duties in a healthy or consistent and robust way.
In other words, the Arbitrator accepted that the effects of the 2006 injury continued and that the “underlying persistence of the condition has resulted in [the worker] having an ongoing vulnerability or ‘brittleness’ as commented upon by Dr Dinnen” ([29]). This resulted in the worker “lacking resilience or capacity to be able to deal with many work place stressors or situations generally as compared [to] the likely situation had he not suffered and continued to suffer from the effects of the 2006 injury” ([29]). These findings were open on the evidence and involved no error.
The Arbitrator explained that the worker’s evidence, and the histories provided in the lengthy and detailed medical reports of Dr Dinnen (in particular) allowed him “to be satisfied the work events referenced are real events” ([30]). He was satisfied that the abusive phone call on 19 June 2012, recorded in detail in the worker’s statement and contemporaneously reported to Dr Dinnen, took place. He added that Dr Dinnen has “reported matters in a consistent manner in his reports” ([30]).
The Arbitrator was satisfied that the documents in evidence indicated that “considerable activity over a period of time has been taken concerning [the worker] being moved from stations” ([30]). He said that, at least on one occasion, such a transfer placed the worker in a position where he felt he was in a situation where he may come into contact with at least one of the officers who had involvement with the events in 2005 and their aftermath. He added, correctly, that the worker had also had many interactions with his supervisors and others concerning his transfer, or possible transfer, to Redfern, a transfer the worker perceived as punishment or a “penalty shift” ([30]). The Arbitrator noted the authorities that employers take their employees as they find them and the “egg-shell psyche” principle discussed in State Transit Authority of NSW v Chemler [2007] NSWCA 249 at [40] and Attorney General’s Department v K [2010] NSWWCCPD 76 at [52].
Based on the medical evidence, particularly Dr Dinnen’s evidence, but also supported by Dr Adams and Dr Gertler, the Arbitrator was satisfied that the worker’s 2006 psychological injury/condition resulted in the worker having intermittent periods of total incapacity from 6 April 2013 to 30 April 2014 and thereafter on an extended basis ([32]). He then referred (at [33]–[34]) to Dr Dinnen’s evidence in June 2012 and June 2013, which was (in essence) that the worker continued to suffer from the illness that brought him to Dr Dinnen’s office in 2005.
Dealing with the arrest and charging in relation to the supply of a prohibited substance, and the ensuing court proceedings, the Arbitrator noted (at [35]) the submission on behalf of the appellant that those matters were “the sole or predominate cause of [the worker’s] incapacity for work after 30 April 2014 and continuing” ([35]). He did not accept that submission. He said, at [35]:
“Upon careful review of the evidence and applying the relevant authorities concerning causation and incapacity I am satisfied [the worker’s] original psychological injury of 7 December 2006 is causally related to, has resulted in, [the worker’s] periods of total incapacity for work, as claimed by [the worker].”
The Arbitrator again considered the stress and anxiety from the criminal charges at [37], which I have dealt with at [131] above. The Arbitrator’s satisfaction was based on his assessment of the evidence overall. As previously noted, his conclusions were open on the evidence and disclosed no error.
After quoting Dr Dinnen’s opinion on causation at [38] (see [132] above), the Arbitrator then noted (at [39]) the relevant authorities on the meaning of “results from” in workers compensation matters. He correctly observed that it is well settled that an injury can have multiple causes. Further, and of particular relevance to the current matter, he added that if the precipitating or proximate cause is not a work injury, “the resulting incapacity or need for medical treatment can still result from an earlier work injury” and that incapacity is not a necessary element in the chain of causation (see the authorities cited at [77] above). Mr Baran has not challenged these statements, which are clearly correct and consistent with the cited authorities.
Mr Baran did not explain exactly what “intellectual and scientific issues” Dr Kaplan raised that the Arbitrator’s reasons failed to address. Dr Kaplan’s opinion on causation was that “[t]he non-work-related factors ([the] laying of criminal charges) must be the major cause of [the worker’s] inability to work”. As Mr Stockley submitted, that was the extent of Dr Kaplan’s “analysis” and it is not even clear that this opinion was a medical one. It fell short of an expert opinion of any persuasive probative value in the sense contemplated by the authorities such as South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421. In other words, as Mr Stockley argued, the appellant did “not present a coherent medical case for the Arbitrator to consider”. I agree. In these circumstances, it was not necessary for the Arbitrator to engage with Dr Kaplan’s evidence in any greater detail than he did.
At the arbitration, Mr Morgan did not expressly refer to that part of Dr Kaplan’s evidence quoted in the preceding paragraph. He only addressed on the fact that, in his first report, Dr Kaplan did not have a history of the criminal charges (T31.28–32.4; T34.1). Bearing in mind these submissions, it was not surprising that the Arbitrator did not dwell on Dr Kaplan’s evidence. His reasons, read as a whole, make it clear that he did not accept Dr Kaplan’s opinions. Part of his reason for preferring Dr Dinnen’s evidence, and rejecting Dr Kaplan’s evidence, was that Dr Kaplan had only seen the worker once and Dr Dinnen had seen him many times over several years. In the circumstances, that was a valid reason for preferring Dr Dinnen’s evidence.
Dr Kaplan’s opinion that the worker “most likely had an Adjustment Disorder in 2005 which had been resolved within several years” was contrary to the worker’s evidence, which was supported by Dr Dinnen and Dr Adams, based on their observations over several years at numerous consultations, that his symptoms continued until the time of the arbitration. In these circumstances, it was open to the Arbitrator to accept the worker’s evidence, which necessarily involved rejecting Dr Kaplan’s evidence. It is not an error of law to omit to state expressly a finding that is clear on a fair reading of the decision-maker’s decision (Polglaze v Veterinary Practitioners Board (NSW) [2009] NSWSC 347 at [46] and [55]–[56]).
Dr Kaplan’s opinion that the worker suffers from a Generalised Anxiety Disorder, a condition that occurs in constitutionally predisposed individuals, and that there is no indication in the literature that this occurs on the basis of external stressors, was inconsistent with the actual experience in this case, documented by Dr Dinnen over several years. Further, if a Generalised Anxiety Disorder is a “constitutional” condition, as Dr Kaplan asserted, it is difficult to know why he said that the worker’s incapacity has resulted from the criminal charges and not from the constitutional condition. Thus, his own reports are internally inconsistent.
The fact that Dr Dinnen has treated the worker for several years was particularly relevant in determining whether his evidence was to be preferred over the evidence from Dr Kaplan, who, as the Arbitrator noted, only saw the worker once. Given the full history of the matter over several years, during which time Dr Dinnen was actively involved in the worker’s treatment, it was not only open to the Arbitrator to accept Dr Dinnen’s evidence, he would have erred had he not done so. For the reasons discussed above, Dr Kaplan’s evidence was far from persuasive, let alone compelling.
The Arbitrator’s reasons, and analysis, did not end with the medical evidence.
The Arbitrator said (at [40]) that there are many examples where it has been held that, when properly analysed, the incapacity has been held to have resulted from an earlier work injury, even when the symptoms from that work injury have been stable or in remission, and not from the proximate or precipitating event that appeared to give rise to the incapacity. The Arbitrator then (at [40] and [41]) discussed Calman in detail. The facts and principles in that case, about which Mr Baran made no submissions, are especially instructive for the present case.
Mr Calman was a police officer. He suffered a compensable workplace psychological injury, namely an anxiety disorder. The symptoms from that injury went into remission and he returned to full-time work with no incapacity. He was later told that he was to be transferred to another station, which caused “a significantly detrimental effect on a pre-existing anxiety disorder” ([3]). The employer denied liability on the basis that Mr Calman had not been “hurt on duty”.
The Government and Related Employees Appeal Tribunal held that the transfer was the immediate cause of Mr Calman’s reaction and resulting incapacity for work, and that that incapacity would not have arisen were it not for the receipt of the news about the transfer. It further found that the decision to transfer Mr Calman “was not an event which occurred in the course of his employment as a police officer”. Accordingly, it held that Mr Calman had no entitlement to compensation. Mr Calman’s appeal to the Court of Appeal was unsuccessful.
In a unanimous decision reversing the Court of Appeal, the High Court (Gaudron ACJ, McHugh, Gummow, Kirby and Callinan JJ), held that it was not relevant whether Mr Calman had been “hurt on duty” when he was told of the transfer. That was because the incapacity “resulted from” the earlier compensable injury. The Court held:
“38. Once the appellant established that his underlying anxiety disorder was an injury within the meaning of the Workers Compensation Act, he was entitled ‘to compensation ... under [that] Act’ upon proof that his total or partial incapacity for work resulted from that injury. The question then for the Tribunal was whether the appellant’s incapacity was causally connected to the underlying anxiety disorder. It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause. Thus, in Conkey & Sons Ltd v Miller, Barwick CJ, with whose judgment Gibbs, Stephen, Jacobs and Murphy JJ agreed, held that it was open to the Workers’ Compensation Commission to find from the medical evidence in that case ‘that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by work-caused injury’.
39. Whether incapacity results from injury is a question of fact. Upon the findings in this case, however, the answer to that question could admit of only one answer. As a matter of law, the Tribunal was bound to find that the incapacity of the appellant resulted from injury within the meaning of s 33 of the Workers Compensation Act. Although the incapacity would not have arisen but for the appellant being told that he was to be transferred, there would have been no incapacity but for the existence of his underlying anxiety disorder. The incident, which was the immediate cause of his incapacity, merely exacerbated the underlying anxiety disorder which continued to exist, notwithstanding that immediately before the incident it manifested no symptoms. In those circumstances, the injury was a contributing cause to the incapacity. As Jordan CJ pointed out in Salisbury v Australian Iron and Steel Ltd:
‘It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause. It may be the catalyst which precipitates disability in a medium of disease. But when the stage is reached at which the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, the right to compensation ceases.’
40.In the present case, the underlying anxiety disorder continued and was capable of producing serious effects if exacerbated or aggravated, as the Tribunal’s findings showed. That being so, the Tribunal was bound to find as a matter of law that the appellant’s incapacity resulted from injury within the meaning of s 33 of the Workers Compensation Act.” (footnotes omitted)
At [41], the Arbitrator quoted extracts from [38] and [39] of the High Court’s decision. He then noted (at [42]) that:
(a)     the worker had been in receipt of “psychological medication and management treatment on a regular and on going basis since his injury in December 2006”;
(b)     in addition to psychotherapy, the worker has been taking anti-depressant and sedative medication to manage his condition on an on-going basis over many years, and
(c)     at the time of the police action, the worker was taking anti-depressant medication prescribed for him by his treating doctors as a result of the 2006 injury.
These findings were all open on the evidence and formed part of the Arbitrator’s reasons for his conclusion on causation. He acknowledged (at [43]) that it may well have been that, absent the worker being charged with serious offences in 2014, his incapacity for work in the months following 30 April 2014 may not have been as prolonged. However, accepting Dr Dinnen’s evidence, it was apparent that the stressors relating to the charges “played upon [the worker’s] pre-existing condition and that [his] incapacity for work is unlikely to have arisen in the absence of the existence of the underlying work related psychological injury condition” ([43]).
The Arbitrator continued that the abusive phone call, the matters involving communication of impending transfer to Redfern, and “the laying of police charges etc” ([43]) may have been the proximate and immediate causes of periods of incapacity, but they merely aggravated or exacerbated the worker’s underlying psychological work related injury/condition. That condition continued to exist notwithstanding that immediately before the “particular incidents” ([43]) the worker had been working. The Arbitrator’s statements at [43] are consistent with the evidence and with Calman. They provide further cogent reasons for his conclusion on causation.
The submissions made by Mr Morgan at the arbitration, and relied on by Mr Baran on appeal (see [136] above), do not establish relevant error by the Arbitrator. The submission that, while working at Redfern, the worker continued in much the same fashion as he had in the previous eight years does not advance the appellant’s case. It overlooks the fact that, in the previous eight years, the worker remained under regular treatment from Dr Dinnen, which included appropriate medication.
That the history to Dr Adams on 26 April 2014, namely, that there were no new stressors, was not accurate is of limited relevance. That is because, armed with the history of the criminal matters, Dr Dinnen was of the view that the worker would have been able to deal with the police investigation and charges without too much trouble had he not been suffering from an ongoing psychiatric disorder for the past ten years or so. While Dr Dinnen conceded, appropriately, that the criminal charges would have added to the worker’s stress, he remained of the view that they had not caused the worker’s condition or his incapacity. The Arbitrator’s acceptance of that evidence involved no error.

The submission that Dr Adams certified the worker fit from 17 March 2014 is of limited, if any, relevance. The submission overlooks that fact that the certificate certified the worker unfit on 16 March 2014, because of severe anxiety and depression, and fit for work from 17 March 2014. That was the pattern of the worker’s illness over several years and was consistent with Dr Dinnen’s evidence that the condition, and the worker’s capacity for work, fluctuated (see [49] above). This was also consistent with Dr Gertler’s view that the worker’s disorder fluctuated in intensity (see [68] above).
The next submission, that after 17 March 2014 Dr Adams certified the worker unfit from the “date of that consultation” (T27.10) and that Dr Adams “post-dates it from 24 April 2014 through to 27 April 2014” (T27.11), is incorrect. The next certificate from Dr Adams is dated 26 April 2014. It certified the worker unfit from 24 April 2014 to 26 April 2014. The certificate of 16 March 2014 did not post-date the worker’s period of unfitness.
The Arbitrator (at [20]) reproduced in full the passage relied on by Mr Morgan from Dr Dinnen’s report of 7 March 2014. He clearly considered it in his assessment of the claim. Significantly, Dr Dinnen’s opinion, as expressed in that report, did not suggest that the worker had recovered from the 2006 injury. It said that the worker’s condition was stable, but he should continue on Efexor and Valium as required. As previously noted, Dr Dinnen sought authority to continue to treat the worker. Nothing in the 7 March 2014 report establishes error by the Arbitrator or advances the appellant’s position on appeal.
While the Arbitrator did not expressly refer to Mr Morgan’s submission that the worker “downplayed” the significance of the charges in his history to Dr Dinnen, that makes no difference to the result. The Arbitrator properly acknowledged (at [35]) Mr Morgan’s submission that the worker’s arrest and charging was the sole or predominant cause of the worker’s incapacity. However, Dr Dinnen was well aware that the worker had been charged with the supply of a prohibited substance (see [59] and [65] above) and his history provided a “fair climate” for the acceptance of his opinion (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510).
That the worker (apparently) did not disclose the criminal charges to Dr Kaplan is, in the circumstances, of no consequence. He did disclose them to Dr Dinnen. Dr Kaplan was later made aware of them and expressed an opinion about their relevance. To the extent that that non-disclosure (and the non-disclosure to Dr Adams on 26 April 2014) adversely affected the worker’s credit, and required closer scrutiny of his evidence, the Arbitrator gave it that scrutiny in his careful and detailed consideration of the evidence overall. That evidence included substantial contemporaneous corroboration of the worker’s complaints in the numerous reports from Dr Dinnen over an extended period. It follows that the non-disclosure to Dr Kaplan did not mandate the rejection of the worker’s claim.
The relevance of Dr Gertler’s history, that the worker had been subjected to further harassment at Redfern and was excluded by staff, has not been explained. That history is consistent with Dr Dinnen’s history, recorded in his October 2014 report, that throughout the previous 12 months (that is, in a period starting well before the criminal charges arose) he had seen the worker’s attitude gradually deteriorate and he had become more pessimistic, more anxious, and less able to motivate himself to continue in the workplace (see [61] above).
The submission “that Dr Dinnen’s reports over time had dissipated and that [the worker] had been working full-time as per his medical certificates and as per the clinical records of Dr Dinnen as at March of 2014” (see [136(h)] above) was not an accurate summary of the submission Mr Morgan made at T33.10–15. Mr Morgan submitted, starting at T33.7:
“So with respect to the 2006 injury, Arbitrator, if you accept my friend’s submission with respect to what appears in the serial reports from Dr Dinnen that there was and were periods of fluctuating intensity where the odd period was lost from work and that that had followed a consistent passage for some eight years, the issues with respect to transfer, it would appear on Dr Dinnen’s treating reports, had dissipated and [the worker] was back working full-time per his medical certificates and per Dr Dinnen’s clinical records as at March of 2014. He is charged by police following on from his active involvement in the supply of prohibited drugs and effectively doesn’t go back to work.”
Thus, contrary to Mr Baran’s contention on appeal, Mr Morgan’s submission was that the issues with respect to the transfer to Redfern had, on Dr Dinnen’s reports, “dissipated”. This takes the matter no further and does not establish any relevant error by the Arbitrator. As explained below, the Arbitrator did not rely on the “issues with respect to transfer” to support his finding on causation.
Last, the relevance of the submission that, because of his criminal record, the worker cannot work as a firefighter was not developed and did not require any specific response by the Arbitrator.
Mr Baran’s submissions about the “objective facts” (see [137] above) seeks to conduct the appeal as a rehearing. That is expressly prohibited in a s 352 appeal, which, as explained earlier, is restricted to the identification and correction of errors of fact, law or discretion. In any event, even if the appeal were a rehearing, Mr Baran’s submission at [137(d)] is pure speculation, and therefore not an “objective fact”. Moreover, it completely ignores the evidence from Dr Dinnen.
As previously noted, the Arbitrator carefully considered Mr Morgan’s submission that the criminal charges and the ensuing court proceedings were the sole or predominant cause of the worker’s incapacity after 30 April 2014 and, for reasons stated, which have been carefully reviewed above, did not accept it. That conclusion was open on the evidence and disclosed no error.
The worker’s “thesis”, as Mr Baran called it, was firmly supported by Dr Dinnen and Dr Gertler. As Mr Stockley submitted, for the appellant’s argument to prevail, the Arbitrator had to conclude that the treating psychiatrist, who had reviewed the worker regularly for nearly 10 years, had failed to diagnose a Generalised Anxiety Disorder, the symptoms of which had in no way been affected by the events at the worker’s workplace. The Arbitrator was right not to draw that conclusion.
The submission that Dr Kaplan’s views were not “reconciled by appropriate reasoning with those of Dr Dinnen and Dr Gertler” has been dealt with earlier in these reasons. It is rejected. So too is the submission that there was no adequate reasoning or proper adjudication as to why it was that intervening police action was rejected as the cause of the worker’s incapacity.
The contention that the Arbitrator’s decision denied the appellant an understanding as to why Dr Kaplan’s evidence was rejected is simply wrong. As the above analysis demonstrates, it is abundantly clear, from reading the Arbitrator’s reasons as a whole, why Dr Kaplan’s evidence was not accepted. It did not provide a coherent or persuasive medical case.
Last, the contention that there has been a significant denial of procedural fairness, by the Arbitrator’s alleged failure to provide adequate reasons, is also rejected. The fundamental principles of procedural fairness have been stated by Dr M Allars in Introduction to Australian Administrative Review (1990) at 236 to be:
“The three principles of procedural fairness are the hearing rule, the bias rule and the no evidence rule. The hearing rule, based on the maxim audi alteram partem, requires a decision-maker to give an opportunity to be heard to a person whose interest will be adversely affected by the decision. The bias rule, based on the maxim nemo debet esse in propria sua causa, requires a decision-maker to be disinterested or unbiased in the matter to be decided... The no evidence rule, which has developed comparatively recently, requires that a decision be based upon logically probative evidence.”
Essentially, procedural fairness requires “fairness in all the circumstances” (per Gibbs CJ in National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312). There is no basis at all for the submission, repeated several times by Mr Baran, that the appellant was denied procedural fairness in either the conduct or resolution of the present case.

GROUND 4: SECTION 11A

Submissions

Mr Baran submitted that, based on the reports of Dr Dinnen of 25 June 2012 and 25 June 2013, the transfer was, on the worker’s case, “the cause of an exacerbation, aggravation or independently a psychological injury”. Indeed, the Arbitrator found (at [49]) that one of the injuries that was “aggravated or exacerbated from the original 2005 (notified 7 December 2006) injury was the transfer issue identified on 5 April 2013”.
Mr Baran referred to the Arbitrator’s criticism (at [48]) of the appellant for not engaging with Dr Dinnen before the first issue of transfer arose. He asked why the appellant would do such a thing in circumstances where, save for the prank call on 19 June 2012 and “sporadic” visits to the doctor, the worker had been working at Bondi Fire Station without apparent incident.
Mr Baran argued that the Arbitrator ignored statements from Superintendent Stathis, Inspector Reilly and Chief Superintendent Connellan and that, in doing so, he failed to discharge his function in determining, by adequate reasoning, whether or not the pleaded 5 April 2013 injury was wholly or predominantly the cause of the worker’s psychological injury as at that particular date.
Moreover, Mr Baran contended that the Arbitrator has ignored the fact that the worker “had been working and thereafter failed to properly adjudicate upon the statements of the senior officers and management and articulate by adequate reasoning how it could be said that the [appellant’s] conduct was unreasonable”. Thus, the failure to properly adjudicate upon the issue and provide adequate reasoning for the rejection of the appellant’s defence was a substantial denial of procedural fairness.

Discussion and findings

Mr Baran’s submissions involve a fundamental misunderstanding of s 11A and of the Arbitrator’s decision. It is appropriate to deal with the Arbitrator’s decision first.
The Arbitrator found that the worker’s injury/condition is a chronic adjustment disorder with anxiety and depressed mood, that it was caused by the events in 2005 and 2006 (the 2006 injury), and that the worker’s incapacity resulted from that injury. Given those findings, the Arbitrator stated (at [44]) that it was not necessary for him to determine whether the abusive phone call in June 2012 or the events on 5 April 2013 would “each constitute individual injuries under the 1987 Act giving rise to incapacity”.
Nevertheless, he went on to find that those events were “psychological insults of a degree sufficient to satisfy the personal injury requirements of s 4(a) and s 4(b)(ii)” and that the contribution of employment factors was “real and of substance” (Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503). It follows that the Arbitrator’s findings with respect to the phone call and the events on 5 April 2013, not being strictly necessary for his determination, were obiter. It follows that, as these findings were therefore not strictly necessary to support his conclusions, whether they were right or wrong does not determine the outcome on appeal. Nevertheless, as both parties have made submissions on the s 11A issue, and as Mr Baran’s submissions are plainly wrong, I will deal with it.
Section 11A(1) provides:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
As Mr Stockley submitted, to succeed in a defence under s 11A, an employer must establish:
(a)     the relevant injury to which the defence is said to apply;
(b)     that the whole or predominant cause of that injury was action taken or proposed to be taken by or on behalf of the employer with respect to (in this case) transfer, and
(c)     that that action or proposed action was (objectively) reasonable.
With respect to the abusive phone call, the Arbitrator said (at [45]) that the appellant conceded that the call was not action or proposed action in respect of transfer and, if it was, it was not reasonable action. I do not understand Mr Baran to challenge this finding and I need say no more about it.
Turning to the events on 5 April 2013, the Arbitrator said, at [46]:
“46.Insofar as pleaded injury event of 5 April 2013 is concerned, given the existence of [the worker’s] longstanding ongoing underlying psychological condition coupled with the requirement to continue to attend counselling and take advantage of prescribed medication to treat his condition I am not satisfied that the stressors relating to the transfer process in about 5 April 2013 was ‘principle and main’ or ‘wholly or predominately’ the cause of [the worker’s] psychological injury condition, which I am satisfied had been in place since at least 2006.” (emphasis included in original)
This conclusion was open on the evidence and involved no error. It was for the appellant to prove that the worker’s injury was “wholly or predominantly” caused by reasonable action taken or proposed to be taken with respect to the transfer (Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 at [67]; Commissioner of Police v Minahan [2003] NSWCA 239 at [25]). The appellant called no evidence on that issue. Dr Kaplan did not address it because, apart from the Adjustment Disorder in 2005, from which he thought the worker had recovered, he did not accept that the worker had suffered any injury.
However, the appellant was entitled to rely on Dr Dinnen’s evidence. There were obvious difficulties with doing so. Dr Dinnen attributed the worker’s injury to the events in 2005 and 2006 (the 2006 injury). Though he said that the worker suffered an exacerbation in April 2013, he did not say that the appellant’s actions with respect to transfer were the whole or predominant cause of the exacerbation.
More importantly, in assessing the evidence on this issue, the Arbitrator properly noted the worker’s longstanding psychological condition, the requirement to continue to attend counselling, and the need for medication. He then concluded that he was not satisfied that the stressors relating to the transfer process in or about 5 April 2013 were the whole or predominant cause of the worker’s injury, which had been “in place” since at least 2006. The Arbitrator’s findings were consistent with the evidence and the terms of s 11A.
It follows that, as the appellant could not establish that the injury was wholly or predominantly caused by the transfer, it does not matter if the action with respect to the transfer was reasonable and it was not necessary for the Arbitrator to make the observations he made at [48], which Mr Baran has challenged. More importantly, in the context of the appeal, it was not necessary for the Arbitrator to “adjudicate” on the statements from the appellant’s lay witnesses, which only went to the reasonableness of the transfer and not to whether the injury caused by the transfer was the whole or predominant cause of a psychological injury.
The complaint that the Arbitrator ignored the fact that the worker “had been working” has overlooked the finding that, though he was at work in 2013 and the first part of 2014, the worker had not recovered from the 2006 injury and was continuing to receive counselling and take medication for that injury.
Last, for the reasons noted at [191]–[192] above, I reject the submission that the Arbitrator’s alleged failure to properly adjudicate upon the issue and alleged failure to provide adequate reasoning for rejecting the appellant’s defence was a denial of procedural fairness.

OTHER MATTERS

Though not raised in the parties’ submissions, there is an obvious typing error at paragraph 1(b) of the Certificate of Determination. The order reads “[f]or the period 24 April 2013 to 16 April 2013”. Clearly, “16 April 2013” should be “16 May 2013” and that amendment will be made to the Certificate of Determination.

CONCLUSION

For the reasons stated above, subject to amending the Certificate of Determination to correct the error at paragraph 1(b), the Arbitrator’s determination is confirmed.

DECISION

Subject to amending paragraph 1(b) of the Certificate of Determination of 12 May 2015 to delete “16 April” and to insert “16 May” in its place, the Arbitrator’s determinations of 12 May 2015 and 15 July 2015 are confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

Bill Roche

Deputy President

26 August 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE