Flanagan v NSW Police Force - [2017] NSWWCCPD 33

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Flanagan v NSW Police Force [2017] NSWWCCPD 33
APPELLANT:	Jamie Flanagan
RESPONDENT:	NSW Police Force
INSURER:	Employers Mutual Limited
FILE NUMBER:	A1-4857/16
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	12 April 2017
DATE OF APPEAL DECISION:	31 July 2017
SUBJECT MATTER OF DECISION:	Pleadings in the Commission; section 74 notices – Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488; Sch 6, Pt 19H, cl 25 of the 1987 Act – amendment to s 4(b) of the 1987 Act pursuant to the Workers Compensation Legislation Amendment Act 2012, and application of the amendment to a ‘police officer’
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Walter Madden Jenkins
Respondent:	Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 12 April 2017 is revoked. 2. The matter is remitted for re-determination by another Arbitrator. 3. The respondent is to pay the appellant’s costs of the appeal.

INTRODUCTION

This matter involves an appeal by a worker, who was a police officer, against a decision by an Arbitrator that he failed to discharge his onus of proving that he suffered a psychological injury as a result of his employment over many years. The appellant was a ‘police officer’, and consequently the amendments to the Workers Compensation Acts in the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act) do not apply to him: Sch 6, Pt 19H, cl 25 of the Workers Compensation Act 1987 (the 1987 Act).

BACKGROUND

Jamie Flanagan (the appellant) was employed by the NSW Police Force (the respondent) from 1986 to 1994, and from about September 1997. His last day of active duties was 14 November 2013. He resigned in August 2015. His rank when he last actively carried out duties was that of sergeant. From 21 April 2015 he held the rank of senior constable.
The appellant gave a history of exposure to many traumatic events during his career with the respondent. These included attending a cot death, a murder, suicides, attempted suicides, motor vehicle accidents and the recovery of bodies. He was assaulted and threatened. He said that he had problems in 1994 for which he came under the care of a psychologist. It was around this time that he initially left the Force. He worked as a real estate agent and a car salesman, before re-joining the Force in 1997. Again, there were events which were traumatic; the appellant said that he suffered from stress, chest pain, headaches and increased blood pressure. There was a forced transfer to Bankstown in December 2008 which he stated was stressful (and which was subsequently reversed). The appellant said that his symptoms worsened in November 2011, and he again came under the care of a psychologist.
The appellant said that he was “wrongly accused” of working in his wife’s bar in the Philippines in 2012, and there was an “internal interview”. He came under the care of a psychiatrist, Dr Wright, and was placed on “permanent restricted duties as the Brief Handling Manager”. He described “increasing difficulty attending work”, and in 2013, he was placed on full-time restricted duties as an “internal General Duties Supervisor”. He eventually stopped work in November 2013. The respondent denied liability for the claim on 20 January 2014.

THE ARBITRAL PROCEEDINGS AND DECISION

The appellant previously commenced two sets of proceedings, nos 1757/16 and 3172/16, which were discontinued. The current proceedings were commenced by an Application to Resolve a Dispute registered on 19 September 2016 (the Application). It claimed weekly compensation on a continuing basis from 20 January 2014, and medical expenses. The appellant claimed to have a dependent de-facto spouse, a dependent child and two dependent stepchildren. An arbitration hearing was held on 1 and 24 February 2017. Mr Stockley instructed by Ms McTegg appeared for the appellant, and Mr Hanrahan instructed by Mr Khoshaba appeared for the respondent.
On 1 February 2017 the respondent was granted leave, pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to raise s 11A(1) of the 1987 Act as an issue, and also to dispute the claim for dependants. The respondent sought, and was granted, leave to cross-examine the appellant regarding his income, marital status and the claim for dependants. The appellant was cross-examined on those matters, and more widely, on 1 February 2017, and briefly re-examined. The matter continued on 24 February 2017. Counsel for both parties addressed and the Arbitrator reserved his decision.
The Arbitrator issued a Certificate of Determination dated 12 April 2017, accompanied by 48 pages of his reasons (the reasons). The Arbitrator noted there was an issue (previously notified) of “injury pursuant to s 4”. He noted that the respondent additionally sought to raise an issue going to s 11A of the 1987 Act, based on various disciplinary actions, and also asserted that the claim for further dependants should be struck out. He gave leave to the respondent to ventilate the s 11A issue, and to dispute the dependency of the appellant’s de‑facto spouse and two step-children (reasons at [6]–[12]).
The Arbitrator described the lay evidence at length (reasons at [18]–[63]). He set out the medical evidence in detail, including reference to the clinical material produced by treating practitioners ([64]–[156]). He referred to a report from Procare (in the respondent’s case), which dealt with the appellant’s earning capacity and psychological testing (reasons at [157]–[170]). He referred to internal investigation reports of the respondent, dated 25 July 2012 and 15 March 2015 (reasons at [171]–[185]). He summarised the parties’ submissions (reasons at [186]–[213]).
The Arbitrator referred to a passage from the decision of Roche DP in Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1; 14 DDCR 157 (Shore) at [36], quoting from Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; 22 CLR 490, dealing with the role of pleadings.
The Arbitrator described the pleadings as “somewhat contradictory, claiming inconsistent deemed dates of injury”. He said that the prima facie case the appellant had to prove was that pleaded in the Application, that injury “occurred as a result of prolonged exposure over many years in an operational environment to the stresses and strains associated with operational police work”. He was not satisfied the appellant had met this onus (reasons at [219]–[220]).
The Arbitrator referred to the medical evidence on which the appellant relied. The appellant’s statement said that he was referred by Dr Kumar to Ms Eldridge (a psychologist) “sometime in November 2011”, having been “recommended by a friend”. However, Ms Eldridge’s report nominated “Powerbits” as the referring entity, and the referral was in May 2011, not November. Ms Eldridge’s report did not nominate an injury date or set out a history. The report was directed to the respondent’s insurer. The Arbitrator noted that the appellant saw the Bankstown Medical Centre (from which Dr Kumar and others practised) in the early part of 2011, giving a history of ankle problems, blood pressure and stress at work. Dr Kumar’s entry on 16 May 2011 recorded “back to normal duties”. If that was correct, the work related “issue had by then resolved”. The Arbitrator noted also that Ms Eldridge’s opinions were based on the results of “a DASS(21) self-reporting test”, saying “further comment will be made in due course” (reasons at [223]–[226]).
The Arbitrator then referred to the reports of Dr Wright, the treating psychiatrist. He noted that the appellant first consulted with Dr Wright in March 2012, with a history of psychological problems over “the past 12 to 18 months”, that is, from “around September 2010 to March 2011”. The Arbitrator noted a reference in the Bankstown Medical Centre notes on 20 August 2010 to “stress++ bought new business”. This was after the appellant was requested, on 3 August 2011, to submit an application for secondary employment to the respondent, relating to work in his wife’s bar in the Philippines. He noted that a warning letter from Assistant Commissioner Murdoch, dated 25 July 2012, referred to this application being refused on 20 August 2010, although the appellant was not notified until 21 September 2010. He referred to a “possibility” that the stress at work in the medical centre entry dated 20 August 2010 was to “anxiety regarding his application and its impact upon his new business”, and that if that were so “the provisions of s 11A might well apply”. He said that “Dr Wright did not take that history, and nor did any other expert in the case”.
The Arbitrator noted Dr Wright said that “there was no specific or particular incident that triggered the [appellant’s] condition”. He said this was “at odds with the contemporaneous events established by the clinical notes and the respondent’s warning letter” (reasons at [227]–[234]). The Arbitrator at [234] of his reasons said:
“Had he been aware that the onset of the [appellant’s] condition coincided with his application for secondary employment regarding his new business venture, would Dr Wright’s opinion as to causation have remained the same? It is a relevant consideration when considering the weight to be given to Dr Wright’s report.”
The Arbitrator said that if Dr Wright was aware of such facts, this “might well have caused Dr Wright to revise his opinion” (reasons at [235]).
The Arbitrator referred to a clinical note from a general practitioner, Dr Ballin, made on 18 December 2008 (sic, 30 December 2008) which referred to “stressed by transfer”. The Arbitrator said that it was the first record of the appellant’s “anxiety”, and it was “directly related to the transfer”. He said that “s 11A would likely have exempted the respondent from liability, had that event been said to have caused the onset of the [appellant’s] adjustment disorder”. He said that the anxiety proved to be “self-limiting” (reasons at [242]–[243]).
The Arbitrator said that, prior to 19 February 2014, Dr Wright “gave no indication that he was hitherto aware of the nature of the internal investigation”, nor did he “have any history of the [appellant’s] constant visits to the Philippines”. He noted that Dr Wright “did not mention the Philippines at any time”. He referred to Dr Wright’s history (in his report dated 19 February 2014) of the appellant’s problems worsening after “a run in at work”, for which he consulted a psychologist and took time off work in “the first part of 2011”. The Arbitrator said that the Investigation Report established that the appellant left Sydney on 2 June 2011, to travel to the Philippines with his then wife, where he was “later found to have been involved in unauthorised secondary employment”. The Arbitrator said that the “run in” might or might not have been connected with the unauthorised secondary employment, but it was a “relevant matter affecting the validity of Dr Wright’s opinion as to causation” (reasons at [245]–[249]).
The Arbitrator then dealt with Dr Anderson, the psychiatrist qualified by the appellant’s solicitors. The Arbitrator said that Dr Anderson took a “general approach to his summary” of the issues, saying that there was a “‘reasonable connection’ to work related stresses”. The Arbitrator said that “like Dr Wright, Dr Anderson did not interest himself in the detail of the investigation”. He was “unaware that the first manifestation of the [appellant’s] current psychological condition occurred at a similar time to his application regarding secondary employment”. The Arbitrator said that both Dr Wright and Dr Anderson referred to “internal investigation and disciplinary issues” in the context of dismissing them as being a sole factor in the onset of the appellant’s condition. They did not consider “whether the investigation might have been the ‘main contributing factor’ in terms of s 4b [sic] of the 1987 Act” (reasons at [251]–[256]). The Arbitrator described a failure by these psychiatrists to explain their reasons as “a fatal flaw in their opinions” (reasons at [257]).
The Arbitrator then referred to the reports of Dr Synnott, on which the respondent relied. He described Dr Synnott as abandoning his support for the appellant, “when he was made aware of the issues raised in the Investigator[’]s Report”. He said that Dr Synnott expressed the view that “the disciplinary proceedings were the predominant cause of the [appellant’s] psychological injury”. He noted that this was relevant to the respondent’s defence pursuant to s 11A(1), rather than to whether a prima facie case on ‘injury’ was established (reasons at [257]–[261]).
The Arbitrator said that he was “unable to accept the [appellant] as being a witness of credit”. He described the appellant’s demeanour when giving evidence as “affable, cheery and chatty … an engaging character who exhibited an impressive attention to detail and a clear and unhesitating recall”. The Arbitrator said he “gained the impression that [the appellant] was no stranger to the witness box” (reasons at [263]). The Arbitrator went on to describe maters that he regarded as deleterious to his assessment of the appellant’s credit.
The Arbitrator referred to evidence under cross-examination, where the appellant was asked why he prolonged his stay in the Philippines in 2014 (1.2.17 T40.20–31, 84.13–85.13). The Arbitrator identified a discrepancy between this evidence, and the appellant’s version in a statement and medical histories (reasons at [265]–[269]).
The Arbitrator said that the appellant “adopted the technique of answering a different question to that he had been asked”. The Arbitrator referred to a passage at T40.33–41.4 which he described as an example of this technique, saying he “found that answer to be disingenuous”, and that it was not responsive to the question asked (reasons at [270]–[271]). He referred to the appellant’s evidence when cross-examined about giving a NSW Police shirt to a girl at the Arizona Resort in the Philippines to wear (1.2.17 T71.12–31). The Arbitrator described this as another example of the appellant “answering a different question to that put”, and said that the answer “stretches credulity”. The Arbitrator said, by reference to a photograph, that he did not accept the appellant’s evidence about the size of his “friend Thommo” (reasons at [272]–[273]).
The Arbitrator said that the appellant had “many times in cross-examination” protested that he had not “had a chance to address the internal investigation”. The Arbitrator said he regarded this as “an attempt to mislead”. He said that the appellant would have been “familiar with police protocols”; police were not required to advise a suspect he was under investigation, but the appellant would have “had a right to be heard, by way of internal appeal” (reasons at [274]). The Arbitrator referred to an exchange between himself and the appellant at T78.27–79.28, going to the appellant being met at the airport in Sydney by Superintendent Hardman, and the appellant being placed in possession of the report into his conduct. He said the appellant “had not been totally frank” about his knowledge of the report, and how he came into possession of it. The Arbitrator said that he approached the appellant’s evidence “with some caution” (reasons at [276]–[277]).
The Arbitrator referred to DASS(21) self-administered psychological testing. He said “[i]t is difficult to resist the impression that the [appellant] was deliberately manipulating the self-administered tests with Ms Radovan”. The Arbitrator said “he may have done the same with Ms Eldridge and Mr Thorpe as well” (reasons at [279]).
The Arbitrator referred to the above matters, and said “[t]he cumulative effect of these credit issues prevents me from accepting the [appellant’s] oral and written evidence, without contemporaneous support”. He said there was a “great deal of contemporaneous evidence … in the form of clinical notes” (reasons at [280]).
The Arbitrator referred to Mason v Demasi [2009] NSWCA 227, dealing with the need for care in weighing the evidence in clinical notes. He referred to a number of appellate authorities relevant to dealing with expert evidence in the Commission (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399, Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705).
The Arbitrator, at [288]–[299], then set out various facts which he accepted had been proved, raised as possibilities, or rejected. These were:
(a)     The appellant’s “condition had commenced 12 to 18 months prior to his first assessment” with Dr Wright in early March 2012.
(b)     On 3 August 2010, the appellant was required to submit an application for secondary employment. This application was refused on 20 August 2010.
(c)     The clinical note entry by Dr Lim (a general practitioner) on 20 August 2010 raises the possibilities that “stress++, bought new business” might have been caused by the appellant buying a new business, and additionally that the requirement to submit an application for secondary employment was connected with that consultation. The appellant conceded contributing “about $2,000” to the venture, and also that the lease payments were about $700 “or something” per month. This investment would be of some concern, particularly if the appellant was awaiting the respondent’s response to his application, when he saw Dr Lim.
(d)     The appellant’s “protestations of innocence as to his intentions to work in the bar” were not accepted, given the Arbitrator’s observations as to his credit, and the finding of Assistant Commissioner Murdoch that the appellant “subsequently engaged in secondary employment”.
(e)     The appellant was “fully fit during 2009”. The Arbitrator rejected any suggestion that earlier events were relevant to commencement of the appellant’s “current condition”.
(f)      Dr Wright and Dr Anderson gave their opinions “without knowledge of these events”. Their opinions “are of little weight or value”.
(g)     The diagnosis of Dr Wright and Dr Anderson, of an adjustment disorder, was accepted. More specifically, the diagnosis of Dr Wright, of an “intermittent Adjustment Disorder with mixed anxiety and depressed mood, arising in the context of work related stresses” was accepted. The diagnosis of Dr Synnott (Post Traumatic Stress Disorder) was not accepted, as it was “infected by a different history from that proven”.
(h)     The appellant was required to prove that “prolonged exposure over many years in an operational environment to the stresses and strains associated with police work” was the “‘main contributing factor’ to the injury”. The Arbitrator said that he was unable to make an informed decision. The “expert witnesses were not possessed of all the relevant facts and circumstances”, he could not “rely on the opinions of Dr Wright and Dr Anderson as to what caused the [appellant’s] condition”. The Arbitrator said that he was “unable to rely on Dr Synnott’s opinion for the reasons given, which, if accepted, may well have established the respondent’s s 11A defence”.
The Arbitrator concluded that the appellant had “failed to meet his onus”, and entered an award for the respondent.

ON THE PAPERS

Section 354(6) of 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

THE NATURE OF THE APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

THE GROUNDS OF APPEAL

The appellant pleads the following grounds of appeal:
(a)     The Arbitrator misidentified the issue of injury as requiring consideration of medical causation as opposed to medical diagnosis (Ground 1).
(b)     The Arbitrator erred in impermissibly including considerations of a potential s 11A defence in his deliberations on the issue of injury (Ground 2).
(c)     The Arbitrator erred in speculating about parts of the medical history, not considered by the expert witnesses (Ground 3).
(d)     The Arbitrator erred in finding that the opinions of the appellant’s treating psychiatrist, Dr Wright and qualified psychiatrist, Dr Anderson were fatally flawed by failure to consider additional matters of history which, prima facie appeared to be events related to the appellant’s employment with the respondent (Ground 4).
(e)     In a matter involving the statutory entitlement of a police officer, the Arbitrator erroneously considered the issue before him by reference to the incorrect text of s 4(b) of the 1987 Act, applying a causation test of “main contributing factor” (Ground 5).
(f)      The Arbitrator erred in holding that it was for the expert medical witnesses to consider the application of s 4(b) of the 1987 Act to the evidence (Ground 6).
(g)     The Arbitrator erred in making adverse credit findings against the appellant by making incorrect assumptions about the evidence (Ground 7).
(h)     The Arbitrator erred in making credit findings against the appellant by applying flawed reasoning (Ground 8).
The appellant addresses Ground 1 on its own. It groups Grounds 2,3 and 4 together, Grounds 5 and 6 together, and Grounds 7 and 8 together, and addresses these grounds grouped in this way.

GROUND 1

The Appellant’s Submissions

It is necessary to set out part of the appellant’s submissions on the procedural background, to understand this ground of appeal. The appellant states that on 22 January 2014 the respondent issued a s 74 notice, denying an injury dated 28 November 2011. This was based on the opinion of Dr Burek, a psychiatrist the respondent had qualified, who reported on 30 December 2013. The “terms of the s 74 notice make clear that the ground for denial was the absence of a formal psychiatric diagnosis”. Ultimately the respondent “made a forensic decision not to rely on that opinion, electing to tender instead the opinions of another psychiatrist, Dr Synnott”.
The appellant submits that each of the medical opinions on which he relied identified “a formal psychiatric diagnosis”. So did Dr Synnott, “and to a more qualified extent Sylvia Radovan psychologist, each qualified on behalf of the [r]espondent”. The Arbitrator accepted that the appellant suffered from “an identified psychiatric condition, namely an adjustment disorder”.
The further date of injury nominated by the appellant, 14 November 2013, reflects the fact that the appellant continued working as a police officer until that time. The respondent issued a further s 74 notice on 16 January 2017, after the current proceedings were on foot. It denied only injury on 28 November 2011, on the basis of s 11A of the 1987 Act. It relied on Dr Synnott’s view that “disciplinary proceedings were the predominant cause of [the appellant’s] psychological injury”. The appellant submits that this notice did not repeat the assertion that there was no diagnosable psychiatric condition, “it could not, given the medical opinions of Dr Synnott, who diagnosed posttraumatic stress disorder”. The Arbitrator granted leave for the respondent to rely on the previously unnotified issue. The respondent had withdrawn “any medical opinion to support the proposition of no diagnosable psychiatric condition”. The appellant submits that the “hearing was conducted (with the [appellant’s] acquiescence) on the basis that the [r]espondent was disputing liability on alternative grounds”.
Against the above background, the appellant submits that “the way in which the issues were joined meant that once the [appellant] had demonstrated that he suffered from a diagnosable psychiatric disorder”, the only causation issue remaining was that pursuant to s 11A. The Arbitrator misidentified the issue, and “embarked on a consideration of matters not requiring his determination”.

The Respondent’s Submissions

The respondent submits that an assertion that the only issue to be determined was that pursuant to s 11A is “plainly wrong”. ‘Injury’, incapacity and ‘disease’ were in dispute. It is plain from the reasoning, the pleadings and the submissions that the case did not turn solely on the defence pursuant to s 11A. The s 11A defence became relevant only if the appellant succeeded on ‘injury’. The s 11A defence was pleaded in the alternative. It submits that Ground 1 should be rejected.

Consideration

The s 74 notice dated 15 and 20 January 2014 (it was signed and dated by two people) disputed the appellant’s entitlement to compensation “as a result of any alleged psychological injury”. By way of “Reason(s) for decision” it stated:
“We dispute the ongoing injury sustained on 28/11/2011 arose out of, or in the course of your employment – Pursuant s 4 of the 1987 Act.
No longer incapacitated as you have fully recovered from your work place injury – Pursuant s 33 of the 1987 Act.
Treatment not reasonably necessary – Pursuant Section 60 & 60A of the 1987 Act.”
The “Issues relevant to the decision”, described in the notice, referred to a report of Dr Burek dated 30 December 2013. It is uncontroversial that Dr Burek was a psychiatrist who examined the appellant on the respondent’s behalf on 11 December 2013, and that his report was ultimately not relied upon by the respondent, in these proceedings. The notice referred to Dr Burek’s conclusion that the appellant did “not have a formal psychiatric diagnosis”. The notice went on to recite passages of Dr Burek’s report dealing with incapacity, the appellant’s motivation, and medical treatment.
The Application (which commenced the current proceedings) pleaded injury on 28 November 2011 and 14 November 2013. The “Injury description” and description of “how injury occurred” were as follows:
“Psychological injury – Adjustment disorder with mixed anxiety and depressed mood or in the alternative, chronic PTSD.”
“Injury occurred as a result of chronic exposure over many years in an operational environment to the stresses and strains associated with operational police work.”
The respondent lodged a Reply in these proceedings on 10 October 2016. It attached the previous s 74 notice dated 15 and 20 January 2014. The Reply said that the matters in dispute were “Confirmed as per dispute notice(s) attached to the Application”. The only such notice was that dated 15 and 20 January 2014. The Reply included Dr Burek’s report dated 30 December 2013, and also a report from Dr Synnott dated 4 August 2016. The Reply also referred to the two dates of injury, and changes to the claim involving the quantum of past medical expenses and dependency. It also said:
“Alternatively, the respondent seeks leave to raise section 11A of the 1987 Act given the investigation report now having been obtained in response to the [appellant’s] allegations of injury and subsequent incapacity.”
Thus, at that point, the respondent sought to rely on the ‘injury’ issue based on Dr Burek’s opinion (notwithstanding the opinion and diagnosis of Dr Synnott), and also to add the issue pursuant to s 11A(1) of the 1987 Act.
The respondent issued a further s 74 notice dated 16 January 2017. It referred to the same injury date as previously, 28 November 2011. It raised an issue pursuant to s 11A of the 1987 Act. It attached further reports of Dr Synnott, dated 9 January 2013, 4 August 2016, 1 November 2016 and 9 January 2017. It did not refer to the previously raised issue regarding ‘injury’.
Early in the arbitration hearing on 1 February 2017, Mr Hanrahan referred to a fresh s 74 notice, which “raises the issue under section 11A with respect to the actions of the respondent’s dealing with the demotion, transfer, disciplinary matters” (1.2.17 T4.20–5.7). When the Arbitrator dealt with the admission of the further s 74 notice as a late document, he described it as “more properly an application” pursuant to s 298A (sic 289A of the 1998 Act) (1.2.17 T9.5–9). The appellant’s counsel indicated that he did not object to leave in that regard, providing that all of the appellant’s documents were placed before the Commission (1.2.17 T9.14–10.14). There was then an exchange regarding the respondent’s reliance on reports from both Dr Burek and Dr Synnott, contrary to cl 44 of the Workers Compensation Regulation 2016. The respondent did not rely on the report of Dr Burek (1.2.17 T12.6–8).
The Arbitrator subsequently referred to the respondent having raised defences pursuant to s 4 and s 11A, saying that an issue about dependency would become relevant only if “those defences fail” (1.2.17 T14.5–12). The appellant’s counsel referred to the respondent having raised “the issue of injury” (1.2.17 T14.17–8).
There was discussion during submissions before the Arbitrator, going to the two s 74 notices, and what was in issue. The appellant’s counsel referred to the original s 74 notice:
“You’ll observe on the first page, Mr Arbitrator, under the heading Reason for the Decision, the denial, pursuant to section 4 of the 1987 Act, on the basis that there was no condition, no diagnosable condition. Whoever the author was is probably a little confused about the statutory scheme. I’m not making a point about that, but there was a denial in any event on that date.” (24.2.17 T15.15–22)
The appellant’s counsel referred to the original s 74 notice as having been based on the opinion of “Dr Burek, whose report is no longer before you”. Counsel referred to the reports of Dr Synnott, and said:
“On the face of it, the second section 74 notice would appear to be replacing the first and conceding injury. But I suppose it’s a matter for Mr Hanrahan to tell you whether that’s so or not. But of course an 11A defence is always predicated on the fact that there is an injury, and Dr Synnott always appears to have accepted that fact.” (24.2.17 T16.34–17.5)
The respondent’s counsel addressed, saying “[o]ur primary argument, Mr Arbitrator, is that argument under section 11A” (24.2.17 T40.33–4). At one point he dealt with an undated statement of the appellant found at page 487 of the Reply. He referred to various events raised in the statement (24.2.17 T53.1–58.10). He made submissions consistent with challenging the occurrence of ‘injury’ (24.2.17 T53.18–29 and T56.11–16) and the weight of the appellant’s medical evidence on ‘injury’ (24.2.17 T59.20–30). At one point Mr Hanrahan submitted “our main thrust is the 11A argument” (24.2.17 T64.21), and the following exchange occurred:
“ARBITRATOR: Was – I understand – I mean, correct me if I’m wrong, but weren’t you submitting that injury was a problem as well because the experts upon which the applicant relied were not furnished with a history that created a fair climate for the ‑ ‑ ‑
MR HANRAHAN: Yes.” (24.2.17 T64.25–31)
The Arbitrator referred to “a question as to whether the [appellant] has proven his case” to which the respondent’s counsel responded “Yes. Yes.” (24.2.17 T66.21–4). An exchange occurred:
“ARBITRATOR: And then you're – sorry, just ..(not transcribable 2.36.08).. . And then you're saying that if I accept that injury has been established, I will be satisfied that the 11A defence would run.
MR HANRAHAN: Correct.” (24.2.17 T67.5–10)
The appellant’s counsel, in submissions in reply, argued that “[i]njury is not an issue” (24.2.17 T67.15). He submitted that the reason given for the denial of liability in the original s 74 notice was “on the basis that there’s no continuing liability, and that’s what they deny” (24.2.17 T68.30–31). He also made the point that the respondent, in its second s 74 notice, did not indicate that it continued to rely on the reasons for denial in the original notice.
In his submissions on this appeal, the appellant accepts that ‘injury’ was in issue, but argues this issue was restricted to whether there was a formal psychiatric diagnosis.
The Arbitrator quoted the following passage from the decision of Roche AP in Shore at [36]:
“The issues in dispute are ultimately determined by the way the parties present their respective cases. As observed by Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd [2012] NSWCA 138 at [14] and [15]) ‘pleadings are only a means to an end’ and if, in the running of the case, the parties choose to restrict them, enlarge them, or to disregard them, ‘it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest’.”
In Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 Roche DP at [45] dealt with the requirements of a s 74 notice, saying:
“A section 74 notice must state in plain language, in the body of the document, the reason the insurer disputes liability and the issues relevant to that decision. An obscure reference to a document attached to the notice, but dealing with a different issue to that identified in the notice, is not sufficient.”
In Far West Area Health Service v Colin Robert Radford [2003] NSWWCCPD 10 (Radford) Fleming DP at [24] said “[i]n the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties.” This was applied in Rinker Group Limited v Mackell (No.2) [2009] NSWWCCPD 97 at [241]. It is necessary that a party be afforded procedural fairness, and notice of the case against it: Edmonds at [90], Radford at [34].
The s 74 notice dated 15 and 20 January 2014 stated as a matter in dispute “We dispute your allegations of a psychological injury.” The reasons for decision are set out at [40] above. The reasons do not adequately dispute the occurrence of an ‘injury’, and indeed are inconsistent with that proposition – they assert that the appellant “fully recovered from your workplace injury”. The “Issues relevant to the decision” are described at [41] above. They refer to the report of Dr Burek. The only aspect of that description, that could be relevant to whether the appellant suffered an ‘injury’ within the meaning of the legislation, was the statement that, according to Dr Burek, there was not a “formal psychiatric diagnosis”.
In Department of Corrective Services v Bowditch [2007] NSWWCCPD 244; 6 DDCR 174 Roche DP dealt with an inadequately expressed s 74 notice, in which the employer asserted that the worker did not suffer a “diagnosis in line with DSM-IV”. After considering the inadequacy of the notice, and the medical evidence attached to it, the Deputy President at [38] concluded:
“Therefore, on balance, and again having particular regard to the way the matter was presented and argued before the Arbitrator, I am inclined to the view (not without considerable reluctance) that the insurer disputed injury in this part of the notice. That is, it disputed whether the nature and conditions of Ms Bowditch’s employment with the Department caused or aggravated a psychological injury under section 4 of the 1987 Act.”
The s 74 notice in the current matter clearly stated that the respondent disputed the “allegations of a psychological injury”. The clarity of that statement was undermined somewhat by the description of the reasons, that followed, which confused various concepts, and could be understood as a denial that the effects of injury continued, rather than as a denial of the occurrence of a compensable injury. Clearly the Arbitrator approached the matter on the basis that ‘injury’ was in issue, as did the respondent’s counsel (see [50] and [51] above). The appellant’s counsel, on this appeal, has approached the matter on the basis that the issue was raised for the limited purpose of disputing that there was an available psychiatric diagnosis.
Although the original s 74 notice was poorly drafted, and conflated issues of ‘injury’ and incapacity, on balance, it was sufficient to put the occurrence of injury in issue. Reading the notice as a whole, and the notice lacks precision, it is not appropriate to restrict the denial of ‘injury’ solely to whether a psychiatric diagnosis could be established. It follows that the adequacy of the appellant’s evidence, including medical evidence going to causation of the alleged injury, was a matter in issue, on which the appellant carried an onus.
The parties did not approach the matter on the basis that the second s 74 notice replaced the first, such that the only issue became the application of s 11A(1) of the 1987 Act. The Arbitrator referred to giving leave to rely on that notice as “more properly an application” pursuant to s 289A of the 1998 Act. Leave was granted to raise this issue, with the consent of the appellant, on the proviso that all of the appellant’s documents went into evidence. There was no suggestion that the original s 74 notice was abandoned.
Where a s 74 notice is imprecise, this has the capacity to deny the other party procedural fairness. A party is entitled to know the case against it (see [56] above). It is desirable, more particularly when they are not raised with clarity, that the issues be agreed and put on the record, at the commencement of an arbitration hearing. This avoids the possibility of a party failing to adequately deal with an issue, on the basis there is doubt about whether it is raised and on what basis. For reasons which follow, it is necessary that this matter be remitted for redetermination by another Arbitrator in any event. Any procedural unfairness, flowing from the imprecision of the original s 74 notice, will be cured in any event.
Ground 1 is rejected.

GROUNDS 5 AND 6

It is convenient at this point to deal with Ground 5.

The Appellant’s Submissions

Ground 5 is that the Arbitrator applied an incorrect test to the issue of ‘injury’ pursuant to s 4(b) of the 1987 Act. As a ‘police officer’, the appellant’s situation was subject to Sch 6, Pt 19H, cl 25 of the 1987 Act. His allegation of ‘injury’ pursuant to s 4(b) was to be dealt with as if the 2012 Amending Act “had not been enacted”. The test of ‘main contributing factor’, which the Arbitrator applied, was an amendment to s 4(b) contained in the 2012 Amending Act. It did not have application to the appellant. The wrong test of ‘injury’ pursuant to s 4(b) was applied.
The appellant refers to the reasons at [256], where the Arbitrator was critical of Dr Wright and Dr Anderson for failing to consider whether “investigation and disciplinary issues might have been the ‘main contributing factor’ in terms of s 4(b) of the 1987 Act.” The appellant submits that the Arbitrator conflated the tests of causation applicable pursuant to s 4 with those applicable pursuant to s 11A. The two issues needed to be considered separately. The first issue was “whether ‘employment’ was a contributing factor to the diagnosis of adjustment disorder or post traumatic stress disorder”. If so, it was then necessary to consider the test required by s 11A, “whether the injury was ‘wholly or predominantly caused’ by reasonable action etc”. The appellant refers to Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95.

The appellant submits that by applying the wrong test, conflating the tests pursuant to ss 4 and 11A, and “delegating that part of the question to the doctors”, the Arbitrator asked “himself the wrong question and thus arrived at an erroneous conclusion”.

The Respondent’s Submissions

The respondent properly concedes that the test on ‘injury’ pursuant to s 4(b), recited by the Arbitrator, was not applicable to the appellant.
The respondent submits that the “pleaded case rested upon the concept of injury not the concept of disease”. The respondent concedes that “counsel for the appellant referred to the concept of disease as forming part of the case”. The respondent submits that its counsel “expressed his confusion and difficulty in understanding precisely what the nature of the case was having regard to the pleading”. The respondent submits that the Arbitrator “determined the case on the pleaded case”, which was “not a disease claim”. The respondent refers to the reasons at [220], where the Arbitrator said:
“I am not satisfied that the [appellant] has met his onus. He has not established on the balance of probabilities that his injury was caused by such prolonged exposure over many years.”
The respondent submits that the above was “the case propounded by the appellant who was unsuccessful.” The respondent submits that the terminology ‘main contributing factor’, used by the Arbitrator at [256] of his reasons, was used “in the context of the defence that was raised pursuant to s 11A”. The respondent refers to the reasons at [258], where the Arbitrator said that “whether the actions detailed in the investigator’s report were wholly or predominantly the cause of the [appellant’s] condition was not relevant to the establishment of a prima facie case.”
The respondent postulates that the appellant is really trying to raise “a jurisdictional error”. It refers to Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598 at [53], dealing with the meaning of “jurisdictional error”. The respondent submits that the s 4(b) issue does not arise because a prima facie case was not established. The “pre-condition to that inquiry never surfaced”.
The respondent submits that “Grounds 5 & 6 must be rejected”.

Consideration

The definition of ‘injury’ in the 1987 Act, prior to relevant commencement of the 2012 Amending Act, relevantly provided:
“4   Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
…”
Sub-section (b) was amended by the 2012 Amending Act, to read:
“(b) includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
It became necessary, to establish a ‘disease injury’ subsequent to the amendments, to prove that the employment was the main contributing factor, rather than simply a contributing factor. The test became more stringent, and more demanding to satisfy. The appellant was a ‘police officer’, and as a consequence the more demanding test did not have application to him: Sch 6, Pt 19H, cl 25 of the 1987 Act. The respondent’s submissions seek to distinguish between ‘injury’ and “a disease claim”. The concepts are not mutually exclusive. ‘Injury’ includes injury pursuant to the ‘disease’ provisions.
The way in which the ‘injury’ was pleaded was that typically associated with reliance on the ‘disease’ provisions of the 1987 Act. The description of “how injury occurred” is set out at [10] above, and is consistent, in a general sense, with an allegation of injury pursuant to the ‘disease’ provisions of the 1987 Act (see generally, Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; 16 NSWCCR 253). Two dates of injury were nominated, 28 November 2011 and 14 November 2013.
There was discussion at the arbitration hearing on 24 February 2017 regarding the pleadings. The respondent’s counsel said that “two discrete dates of injury were pleaded”, but the description was “inconsistent with that”. The appellant’s counsel said that “the second date of injury was included simply as a prudent measure given that it might be said that there was a different deemed date” (24.2.17 T4.14–5.6). The Arbitrator said “I’ve always understood this to be a deemed date case.” (24.2.17 T6.9–10). The references to “deemed” dates are clearly references to ss 15 and 16 of the 1987 Act, where injury pursuant to the ‘disease’ provisions is “deemed to have happened” at a certain time.
The respondent’s counsel, at the commencement of his submissions before the Arbitrator, said of the claim:
“He relies on two injuries, which I understand, and in the context of previous applications which were withdrawn, appear to be disease-type claims that culminated first of all on the 28^th of November, 2011 in incapacity, and then again, upon a couple of years’ worth of attempts to get him back to suitable employment, partially successful, on the 14^th of November, 2013 when he ceased work.” (24.2.17 T30.4–11)
It is clear from the pleadings, the nature of the medical evidence, and how the case was run, that the appellant’s allegations of injury were based on the ‘disease’ provisions of the 1987 Act. The respondent submits that the reference to the test in s 4(b) of the 1987 Act, referred to at [256] of the reasons, was in the context of the s 11A defence. It submits that that defence did “not arise”. The apparent effect of this submission, if accepted, is to assert that any such error would not constitute appealable error, as it could not have affected the result. This fails to take account of the Arbitrator’s ultimate finding of fact at [298] of his reasons:
“However, the applicant is also required to establish that the cause of the onset of the adjustment disorder was the prolonged exposure over many years in an operational environment to the stresses and strains associated with police work. Moreover, the applicant is required to prove that to be the ‘main contributing factor’ to the injury. I am unable for the reasons given to make an informed decision on either matter. The expert witnesses were not possessed of all the relevant facts and circumstances applicable to that issue and I am left in the position that I cannot rely on the opinions of Dr Wright and Dr Anderson as to what caused the applicant’s condition.”
The Arbitrator’s finding on ‘injury’, against the appellant, applied the test appropriate to a ‘disease injury’, in s 4(b) of the 1987 Act, as amended by the 2012 Amending Act. That was not the correct test in the circumstances, and involved error. The Arbitrator was required on all of the evidence, medical (including that of psychologists) and lay, to consider whether the appellant had discharged his onus of establishing ‘injury’ within the meaning of s 4 of the 1987 Act, particularly having regard to the ‘disease’ provisions, which were engaged. He concluded that the appellant had failed to discharge his onus, applying a test different to, and more stringent than, the correct test. The correct approach on appeal, having regard to this error, is that the appeal should be allowed, unless “it could not possibly have affected the result”: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at [12], Toll Pty Limited v Morrissey [2008] NSWCA 197; 6 DDCR 561 at [10]. The error had the clear capacity to affect the result, and requires correction.
It should be noted, for the sake of completeness, that the appellant’s submission that the Arbitrator conflated the tests pursuant to ss 4(b) and 11A(1) is also correct. In a case where s 11A(1) of the 1987 Act is raised as a defence, it is necessary that the issue of whether a worker has proved ‘injury’, within the meaning of s 4, be dealt with initially. It is only if ‘injury’ is established, that it is then necessary to consider whether s 11A(1) provides the employer with a defence (see Manly Pacific International Hotel v Doyle [1999] NSWCA 465; 19 NSWCCR 181 at [4]). In a claim involving the ‘disease’ provisions of the legislation, the test to establish injury (whether or not the 2012 Amending Act applies) is different to the causation issue requiring determination in s 11A(1). There were occasions, in the Arbitrator’s reasons dealing with ‘injury’, where he interspersed references to whether various events, potentially relevant to ‘injury’, might be subject to the provisions of s 11A in any event (see the reasons at [230], [242], [256] and [299]). The two issues, ‘injury’ and the causation test in s 11A(1), are different, and need to be considered separately. The appellant’s submission at [28] of its submissions is correct.
Ground 5 is upheld. It is not necessary to deal with the balance of the grounds.

ORDERS ON THE APPEAL

It is necessary that the ‘injury’ issue be re-determined. Because of the Arbitrator’s decision on ‘injury’, he did not decide the issue of whether the respondent had a defence pursuant to s 11A(1) of the 1987 Act, nor did he deal with the quantum of any entitlement, should that arise. The appellant gave evidence before the Arbitrator, who formed an adverse view of his credit. The appellant submits that the Arbitrator’s “conclusions were not based on any particular advantage he had in seeing the witness”. The respondent submits that “this was a case where the demeanour of the appellant played a significant role”. The respondent refers to Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472; 112 ALR 641 at [10], per Brennan, Gaudron and McHugh JJ. It submits that there is no proper basis on appeal to disturb the Arbitrator’s credit finding.
It is at least arguable that the Arbitrator’s conclusions on credit were in part based on demeanour (see the reasons at [263]–[276]).
On balance, the preferable approach is that the matter be remitted for re-determination by a different Arbitrator. Another Arbitrator will be able to deal with an application to cross-examine if one is made, and to make any necessary assessment of credit.

DECISION

The Certificate of Determination dated 12 April 2017 is revoked.
The matter is remitted for re-determination by another Arbitrator.
The respondent is to pay the appellant’s costs of the appeal.

Michael Snell
Deputy President

31 July 2017