JA and Ma Costa Pty Ltd v Makouk - [2021] NSWPICPD 11

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	JA & MA Costa Pty Ltd v Makouk [2021] NSWPICPD 11
APPELLANT:	JA & MA Costa Pty Ltd
RESPONDENT:	Nada Makouk
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-4447/20
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	26 October 2020
DATE OF APPEAL DECISION:	6 May 2021
CATCHWORDS:	WORKERS COMPENSATION – whether a “dispute” existed within the meaning of ss 289 and 289A of the Workplace Injury Management and Workers Compensation Act 1998; Procedural fairness; Chanaa v Zarour [2011] NSWCA 199, Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 considered and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms L Goodman, counsel
Gair Legal
Respondent:
Mr T Hickey, counsel
Law Advice Compensation Lawyers
ORDERS MADE ON APPEAL:	1. Paragraph 1 of the Arbitrator’s Certificate of Determination dated 26 October 2020 is confirmed. 2. The Certificate of Determination is otherwise revoked. 3. The matter is remitted to a different non-presidential member for re-determination of whether the respondent suffered an injury in the form of an obsessive/compulsive disorder as a result of her employment and any compensation entitlements that flow from the re-determination.

INTRODUCTION AND BACKGROUND

JA & MA Costa Pty Ltd (the appellant employer) appeals from a decision of Arbitrator Isaksen (as he then was) dated 26 October 2020.
The respondent, Ms Nada Makouk, commenced employment with the appellant as a cleaner on 20 February 2017. The respondent alleged that on 27 February 2017, she was required to clean toilets and bathrooms that were in a very unclean state. The respondent began to feel unwell after work that day and her condition deteriorated over the weekend. On the following Monday, the respondent was admitted to hospital in a critical condition. She was diagnosed with pseudomembranous colitis after testing positive to clostridium difficile. The respondent spent some weeks in hospital, including a week in the intensive care unit.
The respondent had a long prior history of anxiety and depression on the background of a number of significant personal traumas, as well as a work related back injury some years earlier. After the respondent contracted pseudomembranous colitis, she began to excessively clean her hands and her home and developed a fear of a recurrence of the condition. She lodged a claim for compensation, alleging that the contraction of pseudomembranous colitis was work related and a further claim alleging that the incident caused an aggravation of her pre-existing psychological condition. The claims were denied.
Ultimately, the matter came to arbitration. The issues at arbitration were identified as:
(a)    whether the respondent contracted the physical condition in the course of her employment;
(b)    whether the respondent suffered a primary psychological injury, or
(c)    if the respondent suffered a psychological injury, whether it was in the nature of a secondary psychological condition.
The Arbitrator determined that the respondent’s physical injury occurred in the course of her employment and that the respondent also sustained a primary psychological injury, namely an obsessive/compulsive disorder, in the course of her employment. The appellant appeals the Arbitrator’s decision, but only in respect of the findings in relation to the psychological injury.

TRANSITIONAL MATTERS

After the respondent’s case had been heard and determined and before the appeal in this matter was allocated to me, the New South Wales Workers Compensation Commission was abolished.[1] The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.[2] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the Arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission, so that the decision-maker involved in the proceedings became a Member of the Personal Injury Commission. However, as at the time of the various orders made in the proceedings the decision maker bore the title of Arbitrator, in this decision he will be referred to by his former title of “Arbitrator.”
[1] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“(3) 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.”
Both parties submit that an oral hearing is not required.
I have had regard to Procedural Directions PIC2 and WC3, 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 pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. Both parties assert that the matter is not interlocutory in nature.
The Arbitrator’s determination involved findings as to injury and made an award for weekly compensation for a short period only. The matter was then to be referred to a medical assessor for assessment of the respondent’s whole person impairment before the Arbitrator determined the respondent’s remaining entitlement to weekly compensation. In one sense, the matter was not finalised when the appeal was lodged.
The former Workers Compensation Commission frequently gave consideration to whether determinations (such as those made by the Arbitrator in this matter) made before the referral to the medical assessor are final and binding rather than interlocutory in nature. In similar facts to this case, Acting Deputy President Snell (as he then was) observed in Maricic v Medina Serviced Apartments Pty Limited:
“The Appellant Worker submits the nature of the Arbitrator’s determination is that ‘the injuries determined to have been suffered as a result of the appellant’s workplace accident have been finally and bindingly determined.’ Reference is made to both the decision in Hawkins, and the decision of the High Court in Licul v Corney. I accept this submission. It is consistent with the reasoning in Hawkins. It is the nature of the Arbitrator’s decision that the Appellant Worker could no longer succeed in recovering compensation of any description, on the basis of symptoms in his neck and left shoulder, on the basis they resulted from the pleaded incident. This decision on ‘injury’ is final and binding, and should not be characterized as ‘interlocutory’.”[3]
[3] [2007] NSWWCCPD 196, [20].
Consistent with Snell ADP’s observations and in the absence of any argument to the contrary, I find that the decision dated 26 October 2020 was final and binding between the parties, was not an interlocutory decision and leave to appeal the decision on that basis is not required.

THE EVIDENCE

As the appeal in this matter is limited to the allegation of error on the part of the Arbitrator in respect of his decisions relating to the respondent’s psychological claim, this summary of the evidence only pertains to the evidence relevant to those issues.

The respondent’s statement

The respondent provided a statement dated 20 June 2018.[4] She described her background and employment history, which included suffering a work related back injury, which she advised caused her to cease work in 2007. The respondent said that she remained off work after that injury, until she returned to the workforce, commencing with the appellant as a casual for four hours per day, three days per week preparing breakfasts and performing cleaning work in the kitchen, showers and toilets, as well as the common living areas.
[4] Application to Resolve a Dispute (ARD), pp 1–7.
The respondent advised that on the third day of her employment, she was required to clean the toilets for the first time. The respondent described the state of the toilets as mouldy and dusty, and asserted that the basins and especially three of the toilets were in a disgraceful state. The respondent said that she was provided with limited cleaning tools and products, and cleaning the areas was very difficult.
The respondent said that after work that day, she began to feel tired and nauseous, with an upset stomach. The respondent described worsening symptoms over the weekend, including bloating, loss of appetite, dizziness, weakness and a dry mouth, as though she had contracted influenza.
The respondent stated that she worked on the following Monday with continuing symptoms. The symptoms worsened, so she called her general practitioner, who told her to go to hospital. She recalled that her symptoms became significantly worse at the hospital and she lost her sense of balance before losing consciousness. The respondent said that she was in the intensive care unit of the hospital for a week, after which she was discharged into the care of a gastroenterologist and her general practitioner, Dr Julie Anderson.
The respondent asserted that she was diagnosed with colitis and was told by her specialist that the condition was caused by having to clean the toilets at work on 27 February 2017, so she lodged a claim for workers compensation, which was declined. The respondent denied that she had any other risk factors for contracting the condition, such as previous colitis, having suffered from food poisoning, or having a recent intake of antibiotic medication.
The respondent described significant ongoing physical disabilities, which impacted her daily living and embarrassed her, particularly if she went out. She stated:
“I have to wear pads and am very embarrassed when I go out, because I am afraid of faecal incontinence and concerned about smell and possible incontinence, so I now stay home most of the time.
I suffer from extreme anxiety about touching things in public, because I am afraid of contracting Colitis again, it is for this reason that I always avoid public toilets and other public areas known for germs and dirty surfaces. I am basically house bound and only go out if I have to such as visiting the doctor’s or shops.”[5]
[5] Respondent’s statement, ARD, p 6, [28]–[29].
The respondent indicated that she spent most of her time at home and was very pedantic about household cleanliness. She said she has two friends who come and visit each week and she requires them to take off their shoes and wash their hands on arrival. The respondent stated that she isolates herself because of a fear of contracting colitis again and of embarrassment in public.

Dr Julie Anderson, general practitioner

The respondent’s legal representatives requested several reports from the respondent’s general practitioner, Dr Anderson.
In her report dated 23 November 2017,[6] Dr Anderson confirmed that she initially saw the respondent in respect of the injury on 16 March 2017, after the respondent had been discharged from St George Hospital, where she had been treated for pseudomembranous colitis following a positive test for clostridium difficile cultures. Dr Anderson advised that initially the respondent’s symptoms had settled, but that the respondent returned several times with recurrences of symptoms.
[6] ARD, pp 112–113.
Dr Anderson advised that she had not previously treated the respondent for any similar condition and that the respondent’s condition had improved gradually since June 2017. She indicated that in her view, there had been an exacerbation of the respondent’s pre-existing mental health condition, which was brought on by the colitis. Dr Anderson reported that the respondent maintained a significant anxiety in relation to her fear of a recurrence of severe pseudomembranous colitis.
On 14 November 2018, Dr Anderson again reported to the respondent’s legal representatives.[7] She gave a summary of the extensive treatment provided to the respondent in respect of her ongoing physical symptoms. Dr Anderson advised that “[t]he predominant feature of her concerns is her fear of contracting the colitis again”,[8] and that the respondent’s anxiety and apprehension had certainly increased since the incident in 2017 and was accompanied by some obsessive compulsive traits of hand-washing and cleaning. In conclusion, Dr Anderson said “The psychological impact of this episode is also likely to last into the medium term, as it has exacerbated some obsessive compulsive tendencies.”[9]
[7] ARD, pp 107–110.
[8] ARD, p 108.
[9] ARD, p 110.
Dr Anderson provided a further report dated 17 October 2019 at the request of the respondent’s legal representatives.[10] Dr Anderson confirmed the history of the onset and ongoing treatment of the respondent’s physical symptoms.
[10] ARD, pp 101–103.
Dr Anderson advised that the respondent reported low mood in a consultation on 20 March 2017. In respect of the respondent’s psychological condition, Dr Anderson reported:
“When I saw Nada on 20/3/2017 she reported low mood. I have not recorded discussing her mental health on her first visit after discharge from hospital.
l was first alerted to issues for Nada regarding anxiety and obsessive compulsive traits in a phone conversation with her gastroenterologist Dr Pavendranathan on April 10 2017. He commented on an increase in her anxiety symptoms and hand-washing. I raised this with her when I saw her on April 24 2017 and suggested she discuss it with her case manager from the St George Community Mental Health Team.
Nada reported that significant distress has developed since working at Fairview Lodge with respect to her feeling the need to wash her hands frequently, and an increasing obsession with cleanliness. She also reported being limited in her ability to go out due to her fear of becoming unwell.
Nada reported anxiety and was distressed by the concern over re-developing colitis.
Nada had previously been treated for depression, anxiety and borderline personality disorder with significant social isolation. The diagnosis of borderline personality disorder with secondary depression was made by psychiatrist Dr Anne Camac in 2014. She was seen by a psychologist and he[r] case manager to promote mindfulness and social contact.
The development of an obsession with cleanliness and hand-washing appears to be subsequent to the employment at Fairview lodge.
She now displays some features of obsessive-compulsive disorder and anxiety.
The trigger for these new mental health symptoms appear to be her exposure to cleaning toilets and the subsequent development of colitis.”[11]
[11] ARD, pp 102–103.
Dr Anderson thereafter made recommendations as to the respondent’s future treatment options and her capacity for work. Dr Anderson’s clinical notes were also in evidence and are consistent with the matters referred to in the above reports.[12]
[12] ARD, pp 874–943.

Associate Professor Colleen Loo

The respondent was referred to A/Prof Loo, who first assessed her in 2010. In her report dated 12 April 2010,[13] A/Prof Loo advised that the respondent had suffered from a significant number of traumatic events and first suffered depression in 1995, which was not actually diagnosed until 2002, at which time she also displayed symptoms of akathisia. A/Prof Loo advised that there was a recurrence in symptoms when she suffered a back injury in 2009. Dr Loo recorded the respondent’s symptoms on presentation as “tearful, distressed, constantly moving around and unable to sit down, stroking the wall frequently and ruminating frequently about past and current stressors”.[14] A/Prof Loo diagnosed agitated depression.
[13] Reply to Application to Resolve a Dispute (reply), pp 93–94.
[14] Reply, p 93.
In a subsequent report dated 10 May 2010, A/Prof Loo also noted that the respondent was doing nothing, other than house cleaning and attending medical appointments.[15]
[15] Reply, pp 95–96.

Ms Hend Saab, psychologist

A number of reports from Ms Hend Saab were in evidence.[16] The reports confirmed that the respondent had experienced a long history of traumatic events and had attended the St George Mental Health Service intermittently between 2002 and 2009 under the care of Dr Phil Wiren, psychiatrist, and subsequently A/Prof Loo. The respondent was diagnosed with agitated depression and possible bulimia. Of particular relevance, Ms Saab wrote to Ms Mandy Young, the Director of Victims Services on 10 October 2010.[17] Ms Saab provided details of a significant traumatic experience suffered by the respondent, following which the respondent “developed compulsive rituals with excessive self washing and home cleanliness.”[18]
[16] Reply, pp 97–107.
[17] Reply, pp 106–107.
[18] Reply, p 106.
Ms Saab provided a comprehensive report dated 7 February 2011, in which she recorded numerous traumatic events in the respondent’s life and summarised the treatment program provided to the respondent. Ms Saab noted improvement in the respondent’s psychological condition.[19]
[19] Reply, pp 102–105.
Ms Saab’s clinical notes were also in evidence and confirmed the history recorded, the treatment provided, and the progress achieved, as described in the above reports by Ms Saab.[20]
[20] Reply, pp 204–270.

Dr Anne Camac, consultant psychiatrist

Dr Anne Camac assessed the respondent on 7 November 2014 at the request of Dr Anderson. In her report dated 4 December 2014,[21] Dr Camac described the respondent as being socially isolated, having long standing interpersonal difficulties and depression. Dr Camac agreed that the respondent suffered from a borderline personality disorder, a diagnosis put forward by Ms Saab.
[21] Reply, pp 115–116.

The St George Hospital records

The St George Hospital discharge referral letter dated 14 March 2017 confirmed that on presentation to the hospital, the respondent was anxious and was experiencing palpitations. The letter recorded a past history of anxiety and depression, as well as bipolar affective disorder.[22]
[22] Reply, p 63.
Documents provided by St George Hospital included a mental health assessment prepared by Dr Joe Fang, Registrar.[23] It was confirmed that the respondent suffered a significant worsening of her psychological symptoms in 2015, in the context of being taken to hospital by police following an escalation of an ongoing dispute with her neighbour. Her symptoms were noted as:
(a)    sleep disturbance accompanied by nightmares;
(b)    high levels of hypervigilance, and
(c)    avoidance behaviours.
[23] Reply, pp 199–204.
Dr Fang observed that those symptoms were possibly indicative of post-traumatic stress disorder, and said it was unclear whether the respondent’s experiences with the neighbour were actually of a paranoid nature, or whether the respondent’s psychological condition had deteriorated to the point where she was beginning to experience psychotic symptoms.

The One Door Mental Health facility

The clinical notes of the One Door Mental Health facility were in evidence.[24] The respondent attended that facility from 24 October 2019, and the attendance notes were recorded from that date until 20 February 2020. The respondent was referred by Dr Anderson in relation to treatment for the respondent’s long history of anxiety, depression and obsessive compulsive disorder and a two year history of symptoms flowing from the contraction of colitis. Dr Anderson reported to the facility that the respondent excessively cleaned her abode and washed her hands frequently.
[24] ARD, pp 158–201.

At the first consultation, the respondent complained of multiple physical problems, including a significant work related back injury and the contraction of colitis two years previously. The respondent’s excessive cleaning of her apartment and hand washing to avoid anxiety was noted. In following attendances, the respondent complained of difficulties with her neighbours which had resulted in police intervention, concern about her son, prior domestic abuse and difficulties in a particular friendship. The respondent also reported a need to wash her hands for fear of becoming sick again.
In following consultations, the respondent expressed concern about her domestic safety and was assisted with making an application for a priority housing transfer. The respondent also reported that she had anxiety in relation to her mother’s declining health, and that she was continuing to practise excessive cleanliness. In March 2020 and in subsequent attendances, the respondent also expressed concerns about the Coronavirus and the fear of contracting COVID–19.

Dr David Gorman, pain management specialist

Dr David Gorman treated the respondent regularly in respect of her major depression and discogenic spinal pain from 25 May 2009. Relevantly, the respondent attended Dr Gorman on 12 January 2017 in respect of major depression, sleep problems and discogenic pain which radiated to her left leg. Dr Gorman noted that the respondent was receiving treatment from the Mental Health Unit at St George Hospital.[25]
[25] Reply, p 336.

Associate Professor Mark Douglas, infectious diseases and hepatitis specialist

A/Prof Mark Douglas provided an opinion in respect of the respondent’s physical injury on 9 April 2018.[26] Notably, A/Prof Douglas recorded that:
“She is independent in her activities of daily living (ADLs). She is able to do her own cleaning at home and in fact cleans extensively. She washes all her fruit in warm water with disinfectant before eating. She washes her dishes, floors and hands with bleach.
…
Ms Makouk made a point of washing her hands before and after the examination. When she arrived she wiped her chair and the desk with an antiseptic wipe. She was initially apprehensive to be examined, as she does not like to be touched by anyone, but agreed when I explained the importance of it for my report.”[27]
[26] ARD, pp 88–97.
[27] ARD, pp 91–92.

Dr Nicholas Talley, physician and gastroenterologist

Dr Talley reported to the appellant’s legal representatives in respect of the respondent’s physical injury on 15 June 2018.[28] Relevantly, Dr Talley recorded the history that the respondent advised that she was normally very concerned with cleanliness, and that since the injury, she had also been wiping down the furniture in order to avoid dirt.
[28] Reply, pp 72–84.

Dr Ash Takyar, psychiatrist

The respondent’s legal representatives arranged for Dr Takyar to examine the respondent. Following the examination, Dr Takyar provided a report dated 27 February 2020.[29]
[29] ARD, pp 53–66.
Dr Takyar took a detailed history of the respondent’s reported work conditions which led to the onset of symptoms and to her admission to St George Hospital. Dr Takyar recorded that the respondent was admitted to the Intensive Care Unit and her first recollection after being admitted was of waking to find her body extensively intubated. Dr Takyar wrote that the respondent “reported a deterioration in her mental state in the context of waking in ICU, feeling frightened and anxious, and in the context of being informed that she had nearly died and of being told what her diagnosis was.”[30]
[30] Dr Takyar’s report dated 27 February 2020, ARD, p 55.
Dr Takyar recorded the respondent’s past psychiatric history of anxiety, depression and bulimia, which had been present since she sustained a work related back injury in 2010, and which he described as a mild lowered mood with an intensity of 5 out of 10 (where a score of 1 is most depressed), compared to 4 out of 10 after the injury. He noted the respondent complained of a deterioration in sleeping patterns, difficulty with concentration, feelings of helplessness and a reduction in appetite, energy and enjoyment levels. He further noted an increase in the respondent’s anxiety levels, which were now present on an ongoing basis, and accompanied by:
(a)    temporomandibular joint tension;
(b)    muscle tension in the shoulder and upper body;
(c)    clenching of fists;
(d)    elevated heart rate and palpitations, and
(e)    shortness of breath.
Dr Takyar reviewed the respondent’s background, her past and current treatment regime and her daily activities, social and recreational functioning, ability to travel, concentration and employability. He further reviewed the medical notes in relation to the respondent’s physical injury.
Dr Takyar noted that a letter in October 2017 from the Department of Gastroenterology and Hepatology at St George Hospital referred to the respondent’s mental health as being adversely affected by the injury and the recovery process, with the respondent obsessing about cleanliness and the risk of further infection. Dr Takyar further noted entries in the clinical notes, which recorded the prior history of depression, bulimia and a generalised anxiety disorder, as well as a post-injury note on 24 April 2017 referring to anxiety in relation to cleanliness. Dr Takyar also noted that A/Prof Mark Douglas, infectious diseases specialist, reported in April 2018 that the respondent’s anxiety was about the risk of re-infection, causing a fear of leaving the house and feeling uncomfortable about touching things in public, especially toilets.
Dr Takyar performed a mental state examination and formed the opinion that:
“Ms Nada Makouk is a 58-year-old female with a prior history of a major depressive disorder and generalised anxiety disorder that had commenced around 2010 and was in a mild grade prior to her injury, and not disrupting her social or occupational functioning. Prior to her work injury, she had been seeing friends two or three times a week, enjoyed walking for an hour a day, was independent with respect to daily functioning, was only intermittently anxious, for minority of her week, and mildly depressed.
The work injury of February 2017 led to an aggravation of her psychiatric conditions, and she now presents with moderate-to-severe grade depressive and anxiety symptoms that render her psychiatrically incapacitated. This has occurred as a result of the shock and traumatic nature of being diagnosed with her condition, and her difficulty reprocessing the fact that she nearly died due to the unclean condition she was forced to work in.”[31]
[31] Dr Takyar’s report dated 27 February 2020, ARD, p 60.
Dr Takyar diagnosed the respondent as suffering from an aggravation of a pre-existing major depressive disorder and generalised anxiety disorder, caused by the injury. He opined that the respondent’s employment was a substantial contributing factor to the aggravation pursuant to s 9A of the Workers Compensation Act 1987 (the 1987 Act). He assessed the respondent as having 21% whole person impairment in respect of the psychological condition, after a 10% deduction to account for the respondent’s pre-existing condition.
Dr Takyar was asked to provide a further opinion following receipt of the opinion of Dr Graham Vickery, psychiatrist, who had examined the respondent at the request of the appellant. Dr Takyar provided a supplementary report dated 20 July 2020.[32] He observed that Dr Vickery had diagnosed the respondent as suffering from an obsessive/compulsive disorder, to which the respondent’s employment was not a substantial contributing factor, and that the condition was primarily constitutional in nature.
[32] ARD, pp 67–69.
Dr Takyar said that, at the time he examined the respondent, symptoms of obsessive/compulsive disorder were not clinically apparent. He confirmed that his diagnosis at the time was of a deterioration of anxiety and depression, caused by her employment.

Dr Graham Vickery, psychiatrist

Dr Vickery provided an opinion about the respondent’s claim in a report dated 10 June 2020.[33] He listed the extensive medical material provided to him. He summarised the respondent’s past psychiatric diagnoses recorded in the general practitioner’s patient history as:
(a)    major depression (2010);
(b)    bulimia (15 October 2010);
(c)    generalised anxiety (29 November 2013), and
(d)    an eating disorder (2 December 2014).
[33] Reply, pp 131–148.
Dr Vickery referred to a report dated 5 March 2009 from Dr Ian Burman, consultant psychiatrist, in which reference was made to the respondent suffering from:
(a)    a psychosis 17 years earlier, which lasted for three years;
(b)    a second onset in 2002 lasting for a further five years, and
(c)    further episodes in 2008 and 2009.
Dr Vickery noted that Dr Burman diagnosed that the respondent suffered from schizophrenia.
Dr Vickery further referred to the clinical notes of Dr Hanady Nasreddine (the respondent’s previous general practitioner) and a report from the Pain Management Unit of St George Hospital, recorded in 2011, which described the respondent’s depression, anxiety and complex mental health issues. Dr Vickery considered that the development of those symptoms was significant. He further noted reports in 2012 and 2014 of the respondent appearing “teary” and in significant distress. On review of the pre-injury medical evidence, Dr Vickery thought it significant that the respondent suffered from a somatoform disorder associated with her depression and anxiety and had developed an iatrogenic opioid use disorder as a consequence of ingestion of pain medication, which was likely to impact the respondent’s psychological state. He discussed the medical research literature upon which his opinion was based.
Dr Vickery took a history of post-injury symptoms from the respondent of frequent hand washing and excessive house cleaning, washing of clothes, feeling “contaminated” after visiting her general practitioner, and social avoidance. Dr Vickery noted that the respondent complained of sleep difficulties, reduced concentration and loss of friendships. Dr Vickery performed a mental state examination, recording that the respondent was frustrated, despondent and emotional. He observed that there was no melancholic depression, paranoid delusional ideation or formal thought disorder and that there was no apparent cognitive impairment. He considered that her presentation was consistent.
Dr Vickery was of the view that there was no evidence of a work related aggravation of the respondent’s pre-existing underlying condition. Dr Vickery opined that the respondent satisfied the criteria for a diagnosis of obsessive/compulsive disorder, which was not documented for 18 months after the injury, was constitutional in nature, and that the respondent’s employment was not a contributing factor as required by s 9A of the 1987 Act and s 4(b) of the 1987 Act.

THE ARBITRATOR’S REASONS

The Arbitrator referred to the respondent’s admission to hospital on 27 February 2017 and the treatment she received until she was discharged on 14 March 2017. The Arbitrator noted that the respondent was diagnosed with pseudomembranous colitis secondary to clostridium difficile, which the respondent claimed was incurred in the course of her employment as a cleaner with the appellant. The Arbitrator further noted that the respondent alleged that she suffered either a primary psychological injury or a psychological injury secondary to the contraction of pseudomembranous colitis.
The Arbitrator recorded that the appellant disputed that:
(a)    the respondent contracted the condition in the course of her employment;
(b)    the respondent suffered a primary psychological injury, or
(c)    if she did suffer such injury, it was in the nature of a secondary psychological condition.
The Arbitrator advised that the allegation that the respondent suffered a primary psychological injury was the subject of an oral application at the arbitration to amend the ARD, and the amendment was not objected to by the appellant.
The Arbitrator addressed the question of whether the respondent contracted pseudomembranous colitis secondary to clostridium difficile in the course of her employment with the appellant on 27 February 2017. He reviewed the appellant’s evidence, as well as the medical evidence, and concluded that he was satisfied that the respondent sustained pseudomembranous colitis in the course of her employment with the appellant. The Arbitrator provided reasons for his conclusion. That finding is not the subject of this appeal so that it is not necessary to summarise his reasons for so concluding.
The Arbitrator turned to the question of whether the respondent suffered a psychological injury in the course of her employment with the appellant. He summarised the respondent’s evidence, including that the respondent stayed in her home most of the day, was anxious about touching things in public, and had a fear of contracting colitis again. The Arbitrator noted that the respondent did not provide any detail of her prior psychological problems.
The Arbitrator referred to the evidence of a letter from the respondent to St George Community Housing on 24 July 2015,[34] as well as the numerous medical reports and entries in the clinical notes that recorded details of the respondent’s significant past history of depression, anxiety and borderline personality disorder. The Arbitrator reviewed the relevant medical evidence that post-dated the injury on 27 February 2017, noting that Dr Anderson was first informed of the respondent’s need to wash her hands and her obsession with cleanliness in a phone call from Dr Pavendranathan on 10 April 2017.
[34] Reply, pp 117–118.
The Arbitrator observed that it was possible that the respondent had suffered two separate psychological disorders as a result of contracting pseudomembranous colitis, namely an aggravation, acceleration, exacerbation or deterioration of her prior anxiety and depression, and an obsessive/compulsive disorder. The Arbitrator noted that the respondent’s counsel submitted that the respondent’s psychological injury was an aggravation injury in accordance with s 4(b) of the 1987 Act, conceding that the respondent had a past history of a long-term psychological condition.
The Arbitrator cited the High Court authority of Federal Broom Co Pty Ltd v Semlitch,[35] in which Windeyer J said that an aggravation occurs when “the disease has been made worse in the sense of more grave, more serious, or more serious in its effects upon the patient.” The Arbitrator also cited the Presidential decisions in Kelly v Western Institute NSW TAFE Commission[36] and AV v AW,[37] in which Roche DP and Snell DP respectively discussed what constitutes an aggravation or exacerbation of a disease and the application of s 4(b)(ii) of the 1987 Act.
[35] [1964] HCA 34; 110 CLR 626, [9].
[36] [2010] NSWWCCPD 71 (Kelly).
[37] [2020] NSWWCCPD 9 (AV v AW).
The Arbitrator formed the view that the only definitive expert opinion on whether there has been an aggravation, acceleration, exacerbation or deterioration of the applicant’s psychological condition was offered by Dr Takyar. The Arbitrator observed, however, that he had “serious reservations” about Dr Takyar’s opinion because the doctor did not indicate that he had given consideration to the clinical notes of the St George Community Mental Health Centre recorded both before and after the injury on 27 February 2017. He said that Dr Takyar referred only to the fact that the respondent had been case managed at that service for 12 years. The Arbitrator said that this was in the context of Dr Takyar having discussed the evidence of the numerous other medical experts. The Arbitrator observed that the history recorded by Dr Takyar was inconsistent with the notes from the St George Community Mental Health Centre, in particular in relation to the months prior to the work injury, and that inconsistency cast doubt on Dr Takyar’s opinion. The Arbitrator pointed to the inconsistencies and concluded that Dr Takyar made no attempt to reconcile the clinically recorded history of ongoing depression and anxiety in the months prior to the injury. The Arbitrator further pointed out that the respondent’s history recorded and accepted by Dr Takyar was that she was only mildly depressed and intermittently anxious in that period.
The Arbitrator acknowledged that caution should be exercised when considering the clinical notes of a busy medical practice. He concluded, however, that the records from the St George Community Mental Health Centre should be afforded significant weight because the notes were extensive and critical to the understanding of the long-term treatment of the respondent’s complicated psychological problems. The Arbitrator reviewed the St George Community Mental Health Centre notes. He formed the view that the respondent had suffered from a significant past history of serious psychological problems. He reiterated that Dr Takyar had failed to sufficiently enquire as to the extent of that past history, in order to have a proper basis upon which to form the view that the respondent’s prior psychological condition was mild, and was aggravated by the work injury. The Arbitrator added that he also doubted that Dr Takyar had given proper consideration to the evidence from the treating practitioners recorded after the work injury. The Arbitrator referred to the evidence of Dr Anderson and Dr Pavendranathan.
The Arbitrator observed that there were few references in the St George Community Mental Health Centre notes to the respondent’s injury causing an aggravation of her depression and anxiety. He noted that, on 4 May 2017, reference was made to the respondent becoming tearful and upset when recalling emotional and physical pain while in hospital following the injury. The Arbitrator further noted that the clinical entries of the St George Community Mental Health Centre and those of Ms Saab of the One Door Mental Health facility, which were recorded after the injury, revolved around the respondent’s personal and social issues and were absent of any indication of an aggravation of the respondent’s depression and anxiety. He said, however, that there were many references to the respondent’s obsession with washing and cleaning her hands.
The Arbitrator, applying AV v AW, considered the causative role of both the respondent’s employment with the appellant and the non-work related factors as to whether the respondent’s employment was the main contributing factor to the aggravation of the psychological condition. He remarked that there had been, and continued to be, multiple competing factors affecting the respondent’s psychological condition. The Arbitrator again referred to Kelly, in which Roche DP said that “[a]n aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms.”[38]
[38] Kelly, [66].
The Arbitrator reviewed the evidence of the significant stressors in the respondent’s life and said that:
“I cannot be satisfied from a review of the evidence that the applicant’s pre-existing depression and anxiety was aggravated at all by her work injury, let alone that her employment was the main contributing factor to that aggravation.”[39]
And:
“On my review of the contemporaneous medical evidence there is very little reference to the effects that the work injury has had upon the applicant’s psychological condition. The applicant has continued to experience depression and anxiety due to multiple factors since the work injury, just as she suffered from those conditions for many years prior to her work injury. Even if there has been an intensifying of depressive or anxiety symptoms since February 2017, I cannot identify the effects of the work injury as being the main contributing factor to the intensifying of those symptoms.”[40]
[39] Makouk v JA & MA Costa Pty Limited [2020] NSWWCC 363 (reasons), [154].
[40] Reasons, [157].

The Arbitrator reiterated that he could not accept the opinion of Dr Takyar, who, he said, was the only expert to provide a “definitive” opinion that there had been a work-related aggravation, acceleration, exacerbation or deterioration of the respondent’s pre-existing psychological condition. He concluded that he could not accept that the respondent suffered a disease injury within the meaning of s 4(b)(ii) of the 1987 Act.
The Arbitrator remarked that there was evidence that the respondent suffered from an obsessive/compulsive disorder as a result of the work related injury. The Arbitrator referred to Dr Pavendranathan’s observations in April 2017 that the respondent displayed an increased obsession with cleanliness and wiped down the surfaces in his consulting room. The Arbitrator noted that Dr Anderson also recorded an increased obsession with cleanliness and that the respondent displayed features of obsessive/compulsive disorder after the injury. The Arbitrator said that, in addition, A/Prof Douglas (in 2018) and One Door Mental Health facility (in 2019) observed similar conduct, but that other doctors, including Dr Takyar had not reported such behaviour.
The Arbitrator noted that Dr Vickery was of the view that the respondent’s symptoms satisfied the DSM5 criteria for an obsessive/compulsive disorder, but that the disorder was primarily constitutional in nature and her employment was not a contributing factor. The Arbitrator said that Dr Takyar specifically ruled out obsessive/compulsive disorder as a diagnosis.
The Arbitrator concluded that, notwithstanding the respondent’s counsel had submitted that the respondent had suffered an aggravation injury within the meaning of s 4(b)(ii) of the 1987 Act, and that Dr Takyar had excluded a diagnosis of obsessive/compulsive disorder, he considered that the respondent did suffer the onset of such a condition as a result of the work injury. The Arbitrator referred to the evidence of Dr Pavendranathan, the One Door Mental Health facility, and in particular Dr Anderson, the respondent’s long-term general practitioner, as being supportive of that conclusion.
The Arbitrator noted the appellant’s submission that there was a lack of reporting of the obsession with cleanliness until 18 months after the injury. The Arbitrator said, however, that he was satisfied by the evidence of Dr Anderson and accepted that the obsessive cleanliness and handwashing resulted from the injury. The Arbitrator explained that Dr Anderson had been involved in the treatment of the respondent over a long time. The Arbitrator accepted that the respondent suffered from an obsessive/compulsive disorder as a result of the work related injury.
The Arbitrator said that he considered whether the obsessive condition could be an aggravation of the pre-existing condition. He referred to Dr Anderson’s evidence that the colitis had caused an exacerbation of the respondent’s pre-existing psychological condition and exacerbated the respondent’s obsessive/compulsive traits, but that Dr Anderson did not identify what the conditions were that were exacerbated.
The Arbitrator remarked that there was no expert psychiatric opinion that addressed the issue, but that, after reviewing the evidence, he was satisfied that the respondent suffered an obsessive/compulsive disorder as a result of her work injury, and was not satisfied that the respondent suffered an aggravation injury to any pre-existing psychological disease, to which the respondent’s employment was the main contributing factor.
The Arbitrator turned to the consideration of whether the respondent’s psychological injury was a primary or a secondary injury. The Arbitrator referred to the definitions of those injuries. The Arbitrator cited the Presidential decisions in Cannon v The Healthy Snack People Pty Ltd,[41] and RSL (QLD) War Veterans’ Homes Ltd v Watkins,[42] which dealt with s 65A of the 1987 Act and the distinction between a primary and a secondary psychological injury. The Arbitrator reiterated that the respondent’s consistent evidence was that she remained at home for most of the time, was anxious about touching things and fearful about contracting colitis again. He also referred to Dr Anderson’s opinion that the trigger for the “new” mental health condition was the requirement to clean toilets and the development of colitis.
[41] [2009] NSWWCCPD 32.
[42] [2013] NSWWCCPD 44.
The Arbitrator concluded that the respondent’s washing and cleaning stemmed from the trauma of contracting clostridium difficile when cleaning toilets and bathrooms, and not from the pain she experienced as a result of the colitis or subsequent diarrhoea. He considered that the obsessive/compulsive disorder was a primary psychological injury. The Arbitrator added that the respondent’s psychological condition did not arise as a consequence of the physical injury and thus, could not be considered a secondary psychological injury. The Arbitrator noted that, because the injury was a primary psychological injury, her lump sum claim for whole person impairment in accordance with s 66 of the 1987 Act was to be referred to a medical assessor for assessment.
The Arbitrator then proceeded to consider the respondent’s entitlement to weekly compensation.
The Certificate of Determination issued on 26 October 2020 records:
“The Commission determines:
1.     The applicant contracted severe pseudomembranous colitis secondary to Clostridi[u]m diffic[i]le in the course of her employment with the respondent on 27 February 2017.
2.     The applicant sustained a primary psychological injury in the course of her employment with the respondent on 27 February 2017, being an Obsessive Compulsive Disorder.
3.     The applicant had no current work capacity from 28 February 2017 to 15 June 2017.
4.     The determination of any weekly payments of compensation to be awarded to the applicant after 15 June 2017 is postponed until after the provision of the Medical Assessment Certificate (MAC), or any appeal therefrom.”
The Arbitrator also made orders for the payment to the respondent of weekly compensation up to 15 June 2017 and treatment expenses associated with her injuries.

GROUNDS OF APPEAL

The appellant brings two grounds of appeal from the Arbitrator’s decision. The allegations of error are that the Arbitrator erred in law by:
(a) finding that the respondent sustained an obsessive/compulsive disorder as a result of the work injury in circumstances where the respondent had never made a claim for obsessive/compulsive disorder as a result of the work injury, and
(b) not considering whether the respondent’s employment was the main contributing factor to the injury of obsessive/compulsive disorder.

LEGISLATION

The definition of injury is provided in s 4 of the 1987 Act, as follows:
“4      Definition of “injury”
(cf former s 6 (1))
In this Act—
injury—
(a)     means personal injury arising out of or in the course of employment,
(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
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 65A of the 1987 Act provides:
“65A Special provisions for psychological and psychiatric injury
(1)     No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2)     In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3)     No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note—
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4)     If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply—
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note—
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5)     In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
Sections 289 and 289A of the 1998 provide for restrictions as to when a matter can be referred to the Commission. Section 289 provides:
“289 Restrictions as to when dispute can be referred to Commission
(1)     A dispute about a claim for weekly payments (other than a dispute based on a work capacity decision) cannot be referred for determination by the Commission unless the person on whom the claim is made—
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
Note—
The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments pursuant to a work capacity decision (without having disputed liability) constitutes a failure to determine the claim.
(2)     A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made—
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
(2A) Subsection (2) does not prevent the referral to the Commission of a dispute about whether any proposed treatment or service is reasonably necessary as a result of an injury.
Note—
Section 60 of the 1987 Act provides for such a dispute to be referred to the Commission.
(3)     A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made—
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.
Note—
The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.
(4)     A dispute about a claim for compensation under Division 5 (Compensation for property damage) of Part 3 of the 1987 Act cannot be referred for determination by the Commission until—
(a) 28 days after the claim for compensation is made, or
(b) the person on whom the claim is made disputes liability for the claim (wholly or in part),
whichever happens first.
(5)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.”
Section 289A provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1)     A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)     Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”

SUBMISSIONS

Ground One

The appellant’s submissions

The appellant contends that the respondent had never made a claim for injury in the nature of an obsessive/compulsive disorder so that the appellant had never considered such a claim. The appellant submits that s 289 of the 1998 Act prevents a matter being determined in the absence of a dispute and cites Shams v Venue Services Group Pty Ltd[43] as authority for that proposition. The appellant asserts that the respondent did not seek to make any such amendment at the arbitration, that the Arbitrator did not give any indication that he was likely to find that the respondent suffered a work related injury in the form of an obsessive/compulsive disorder and did not invite submissions from the parties about that proposition.
[43] [2013] NSWWCCPD 57.
The appellant submits that, although the Arbitrator did raise the fact of Dr Vickery’s conclusion that the respondent suffered from an obsessive/compulsive disorder, submissions were made that the disorder was constitutional and that the respondent’s employment was not a substantial contributing factor to that condition. The appellant explains that, in other words, the evidence did not support a finding that the obsessive/compulsive disorder resulted from a work injury. The appellant contends that even when those submissions were made, the respondent did not make an application to amend her claim to include the proposition that she suffered a work related injury in the nature of an obsessive/compulsive disorder.
The appellant refers to the respondent’s claim as pleaded in the ARD. The appellant submits that the Arbitrator extensively reviewed the evidence of the multiple causative factors as to whether the respondent had suffered a work related aggravation of her pre-existing anxiety and depression. The appellant says that the Arbitrator concluded that he could not be satisfied that there was a work related aggravation or that the respondent’s employment had been the main contributing factor to any aggravation. The appellant points out that Dr Takyar’s opinion was the only definitive expert opinion to support the finding of a work related aggravation, acceleration, exacerbation or deterioration of the respondent’s psychological condition, but that the Arbitrator did not accept that evidence. The appellant says that, on that basis, the Arbitrator concluded that he could not accept that the respondent had suffered a disease injury as defined by s 4(b)(ii) of the 1987 Act.
The appellant asserts that the finding that the respondent suffered from an obsessive/compulsive disorder was against the evidence. The appellant points to the evidence that Dr Takyar specifically excluded the diagnosis of obsessive/compulsive disorder and Dr Vickery was of the view that the disorder was constitutional in nature, to which the respondent’s employment was not a substantial contributing factor. The appellant further points out that the Arbitrator took into account the evidence of Dr Pavendranathan and Dr Anderson about the respondent’s excessive cleaning habits and that the respondent’s behaviour showed features of obsessive/compulsive disorder. The appellant adds that the evidence from the One Door Mental Health facility attributed those habits to the work injury.
The appellant submits, however, that neither Dr Pavendranathan, Dr Anderson nor the One Door Mental Health facility made the diagnosis of obsessive/compulsive disorder and certainly did not express the view that such a disorder was caused by the work injury. The appellant refers to Dr Takyar having been provided with the report of Dr Vickery, together with the records from both Dr Anderson and the One Door Mental Health facility. The appellant submits that, in that context, Dr Takyar specifically ruled out the diagnosis and ruled out that any such condition constituted an injury which resulted from the respondent’s employment.
The appellant also points out that the only submission made by the respondent’s legal representatives at arbitration was that the respondent’s injury was an aggravation of her pre-existing anxiety and depression in accordance with s 4(b)(ii) of the 1987 Act.
The appellant concludes that there was no evidence to support the Arbitrator’s finding that the respondent suffered an injury in the form of an obsessive/compulsive disorder, and therefore, the Arbitrator’s finding was in error.

The respondent’s submissions

The respondent refers to s 354 of the 1998 Act and submits that the Commission is not a tribunal of strict pleading and proceedings are to be conducted with as little formality and technicality as a proper consideration of the matter allows. Further, the Commission is to determine the matter on the substantial merits of the case, without regard to technicalities and legal forms, and is required to act according to equity and good conscience. The respondent cites Far West Area Health Service v Radford[44] and Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos[45] as authorities supporting those propositions. The respondent adds that the Commission is not a court and is not expected to function as a court, citing the Court of Appeal decision in Fletcher International Exports Pty Ltd v Barrow[46] as authority for that proposition.
[44] [2003] NSWWCCPD 10.
[45] [2014] NSWWCCPD 23.
[46] [2007] NSWCA 244; 5 DDCR 247, [91].
The respondent submits that the claim, as pleaded, was that the respondent suffered a primary psychological injury on 27 February 2017. The respondent says that no specific psychological diagnosis was pleaded. The injury was simply alleged to be a primary psychological injury and it was not necessary for there to be a reference to a precise diagnosis. Nor was it necessary for a finding to be made about that diagnosis particularly where a lump sum claim pursuant to s 66 of the 1987 Act remained of foot (citing Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[47] and Jaffarie v Quality Castings Pty Ltd[48]).
[47] [2014] NSWCA 264.
[48] [2014] NSWWCCPD 79.

The respondent submits that the issues in dispute are ultimately determined by the way in which each party presents their case. That is, in the context of the Commission and its statutory obligations, the case is not decided by reference to the pleadings, but by the evidence tendered and the submissions presented.
The respondent contends that both parties submitted on the evidence and put forward their case based on the totality of the evidence before the Arbitrator. The respondent asserts that her submissions included reference to the evidence of obsessive/compulsive traits and points to the parts of the transcript where those submissions were made. The respondent identifies the evidence she relied on at arbitration, namely Dr Anderson, Dr Pavendranathan, Dr Konecny, Dr Takyar and the One Door Mental Health facility. The respondent says that her claim was that of a primary psychological injury, although she concedes, however, that she put her case to the Arbitrator as an aggravation injury, consistent with the opinion of Dr Takyar.
The respondent asserts that the Arbitrator was bound to make a finding in respect of the primary psychological condition on the basis of the evidence before him, about which the parties had made submissions. The respondent refers to the appellant’s case, as presented to the Arbitrator and recorded in the transcript, and says that the appellant:
(a)    raised the diagnosis of obsessive/compulsive disorder;
(b)    argued that the disorder was a constitutional condition and not work related;
(c)    submitted that, if the Arbitrator was satisfied that there was a psychological condition, it was secondary rather than primary in nature;
(d)    pointed to similar symptoms from 2008, and
(e)    submitted that the Arbitrator could not be satisfied that the disorder had either been caused or aggravated in 2017.
The respondent submits that the appellant therefore invited the Arbitrator to consider the aetiology of the disorder and whether the event in 2017 was causative of the disorder, and invited him to make a determination. The respondent asserts that in the circumstances, there can be no issue about procedural fairness.
The respondent contends that there was sufficient evidence to support the Arbitrator’s findings, referring to the principles enunciated in Raulston v Toll Pty Ltd[49] and in Young v Vietnam Veterans Keith Payne VC Hostel Limited[50] in relation to appeals in the Commission from an Arbitrator’s determination of fact. The respondent submits that the appellant has failed to identify error of the kind required to disturb the Arbitrator’s decision.
[49] [2011] NSWWCCPD 25; 10 DDCR 156.
[50] [2020] NSWWCCPD 66.
The respondent adds that the appellant’s assertion that there was no dispute between the parties in relation to the diagnosis of obsessive/compulsive disorder cannot stand. The respondent submits that a claim for weekly payments, treatment expenses and a lump sum was made by her. The respondent says that the claim was made on the basis of an injury on 27 February 2017, which was alleged to be a physical injury resulting in pseudomembranous colitis, and a primary psychological condition. The respondent contends that the particulars of the claim were sufficient to establish a claim was made in accordance with s 260 of the 1998 Act, and a dispute had arisen which could be referred to the Commission. The respondent refers to the Presidential decisions of Inghams Enterprises Pty Ltd v Thoroughgood[51] and Woolworths Limited v Stafford.[52]
[51] [2013] NSWWCCPD 29.
[52] [2015] NSWWCCPD 36.

The appellant’s submissions in reply

The appellant submits that the Commission is not vested with inherent jurisdiction but only those powers that are incidental and necessary to the exercise of its statutory obligation. The appellant says that ss 289 and 289A of the 1998 Act only allow for a dispute to be referred to the Commission where either liability for a claim is disputed, or there is a failure to determine the claim. The appellant asserts that there was no notice disputing liability for an obsessive/compulsive disorder. The appellant adds that the only dispute notice issued was in respect of the respondent’s claim, which was based upon the opinion of Dr Takyar. That is, it alleged injury by way of an aggravation of the respondent’s pre-existing anxiety and depression. The appellant submits that it disputed that the respondent’s injury, if any, was a primary psychological injury.
The appellant contends that the Arbitrator had no jurisdiction to deal with a claim for obsessive/compulsive disorder.
The appellant otherwise repeats its substantive submissions.

Ground Two

The appellant’s submissions

The appellant cites the following passage from the Arbitrator’s reasons:
“… there is an unbroken chain between the colitis infection and the onset of obsessive behaviour regarding cleanliness which allows a finding to be made that the applicant has Obsessive Compulsive Disorder which results from her work injury.”[53]
[53] Reasons, [172].
The appellant submits that the Arbitrator did not weigh up all of the factors that contributed to that injury found by him, in particular:
(a) the evidence from Dr Takyar that the respondent did not suffer from such a condition, and
(b) the lack of opinion from Dr Anderson that the features of the disorder which the respondent displayed met the criteria for the disorder, or that such a disorder was attributable to the respondent’s employment.
The appellant says that the Arbitrator failed to weigh those factors when determining that the respondent suffered a work related injury in the nature of an obsessive/compulsive disorder. The appellant submits that the Arbitrator’s reasons show that he:
(a)    reviewed the medical evidence;
(b)    concluded that the respondent had sustained obsessive/compulsive disorder as a result of her work injury;
(c)    considered whether the injury was a primary or secondary psychological injury, and
(d)    concluded that the disorder was in the nature of a primary injury.
The appellant reiterates that the Arbitrator did not give consideration to whether the employment was the main contributing factor to the injury, as he was required to do.
The appellant contends that a review of the evidence discloses that the respondent did not, prior to the injury, suffer from symptoms of any such a disorder, so that there could be no aggravation of the condition in accordance with s 4(b)(ii) of the 1987 Act.
In conclusion, the appellant submits that the Arbitrator erred in failing to consider whether the respondent’s employment was the main contributing factor to the injury.

The respondent’s submissions

The respondent submits that the Arbitrator made it clear in his reasons that he determined that the respondent suffered a primary psychological injury in accordance with s 4(a) of the 1987 Act and thus it was not necessary for him to engage with the requirements of s 4(b) of the 1987 Act (injury by way of a disease). The respondent points to the Arbitrator’s reasons from [159] to [176], which she asserts make it clear that the Arbitrator determined that the respondent suffered an injury in the nature of an obsessive/compulsive disorder in accordance with s 4(a) of the 1987 Act, and not a disease injury or an aggravation of a disease, within the meaning of s 4(b) of that Act. The respondent submits that arbitrators have a statutory obligation to provide reasons and refers to the observations made by Sackville AJA in Abdel Naser Qushair v Naji Raffoul,[54] which were followed by Roche DP in Winter v New South Wales Police Force,[55] wherein the Deputy President observed that (citations omitted):
“A failure to state why some evidence was preferred over competing evidence may
‘reveal an error in the process of fact finding’. Where findings are based on expert
witnesses, the arbitrator should specify the objective basis for the resolution of
conflicting expert evidence. It is not sufficient to merely record a preference for the
evidence of a particular expert.”[56]
[54] [2009] NSWCA 329.
[55] [2010] NSWWCCPD 121 (Winter).
[56] Winter, [194] (citations omitted).
The respondent contends that, in order for the appellant to succeed in the appeal, the appellant must establish that the Arbitrator’s reasons were sufficiently inadequate to show that the Arbitrator failed to exercise his statutory obligation to fairly and lawfully determine the dispute. The respondent asserts that, in the context of the Commission’s dispute resolution scheme, the Arbitrator’s reasons should be read as a whole and the Presidential member should not “comb through” the Arbitrator’s reasoning in search of error. The respondent maintains that there was no error of the kind required in order to disturb the Arbitrator’s decision.

The appellant’s submissions in reply

The appellant submits that, to the extent that the Arbitrator may have determined that the injury sustained fell within s 4(a) of the 1987 Act, there was no evidence to support that finding. The appellant maintains that the Arbitrator’s finding was erroneous.

THE RELIEF SOUGHT

The appellant seeks to have the Certificate of Determination revoked and an award in its favour entered in respect of the respondent’s psychological injury claim.
The respondent submits that, if the error is established, paragraph [2] of the decision should be revoked and the matter remitted to the same Arbitrator to determine the issue of psychological injury. The respondent cites the complex nature of the issue, as well as other reasons, for requesting the same Arbitrator.

CONSIDERATION

The ARD (Injury Details) pleaded that the respondent’s “psychological injury occurred as a result of the shock and traumatic nature of being diagnosed with the [physical conditions] and her difficulty reprocessing the fact that she nearly died due to the unclean conditions she worked in.”[57]
[57] ARD, p 8.
The transcripts of the arbitration proceedings on 1 October 2020 and 9 October 2020, as well as the respondent’s (the applicant in the proceedings below) written submissions in reply provided to the Arbitrator disclose that the respondent’s case as put to the Arbitrator was that the respondent suffered an aggravation of her pre-existing anxiety and depression, which was a primary psychological condition within the meaning of s 65A of the 1987 Act.
The appellant’s response to that case was that there was no probative evidence that the respondent’s pre-existing psychological condition was aggravated by the events that occurred, or if it had been, it was secondary to the injury and not a primary psychological injury. The appellant also argued that the “new” symptoms the respondent was experiencing were those of an obsessive/compulsive disorder, which had an onset well after the physical injuries and was a constitutional condition unrelated to the respondent’s employment.
This appeal concerns a challenge to the Arbitrator’s finding that the respondent suffered a primary injury in the form of an obsessive/compulsive disorder. The Arbitrator also made a finding that he was not satisfied that the respondent suffered an aggravation of her pre-existing anxiety and depression. The respondent has not challenged that finding either by lodging an appeal from that finding or by way of a notice of contention.
An appeal from an arbitrator to a Presidential member of the Commission is provided for in s 352 of the 1998 Act. In Ballina Shire Council v Knapp,[58] Payne JA made the following observations in respect of the limited jurisdiction of a Presidential member on an appeal from an Arbitrator:
“The appeal before the Deputy President was limited to a determination of whether the Arbitrator’s decision ‘was or was not affected by any error of fact, law or discretion, and to the correction of any such error’. The section specifically provided that the ‘appeal is not a review or new hearing’.
The language of s 352(5) as it now appears, makes it clear that the dicta in Chubb relied upon by the Deputy President had no role to play in the appeal before her. The only question raised by the parties before the Deputy President was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act. Having dismissed that claim, in the circumstances of this case, the Deputy President had no jurisdiction to determine whether the respondent was entitled to compensation on some other basis.”[59]
[58] [2019] NSWCA 146 (Knapp).
[59] Knapp, [33]–[34].
Thus, this appeal is limited to a consideration of whether the Arbitrator erred in determining that the respondent sustained an obsessive/compulsive disorder as a result of a work related injury and as to whether the Arbitrator erred by failing to determine whether the respondent’s employment was the main contributing factor to the injury.
In respect of Ground One of the appeal, the appellant submits that:
(a)    the respondent’s case was that she suffered a work related aggravation of her pre-existing anxiety and depression in accordance with s 4(b)(ii) of the 1987 Act;
(b)    the respondent had never made a claim for injury in the form of an obsessive/compulsive disorder, so that the appellant had never considered or disputed the claim. The Arbitrator did not, therefore, have jurisdiction to make a determination that the respondent suffered from an obsessive/compulsive disorder;
(c)    the finding that the respondent suffered from an obsessive/compulsive disorder was against the evidence, and
(d)    the evidence was that any such disorder did not result from the respondent’s employment.
The case as pleaded in the ARD was non-specific as to what constituted the respondent’s claimed psychological injury. Prior to making submissions, the respondent sought to amend the pleadings to allege that the injury was a primary psychological injury, which was not opposed by the appellant. The transcript of proceedings discloses that, prior to the submissions being made, there was no discussion about what diagnosis should be attributed to the respondent’s alleged psychological injury.
The appellant declined liability for the respondent’s claim for physical injuries by way of a notice issued pursuant to s 78 of the 1998 Act dated 22 September 2017.[60] The respondent sought a review in a letter dated 23 October 2019, relying upon medical evidence from Dr Anderson and Dr Greenberg.[61] Although the letter from the respondent did not specify the injuries alleged, it is apparent that the claim was in reference to the respondent’s physical injuries.
[60] ARD, pp 11–13.
[61] ARD, pp 23–24.
The respondent then made a further claim on 27 March 2020, which was a claim for whole person impairment based on an assessment by Dr Takyar.[62] Although it was not specified in the letter of claim, that claim was clearly in relation to allegation of psychological injury. The only particulars of the claim were those provided for in the medical evidence attached to the letter, which was solely the report of Dr Takyar. The appellant issued a further notice pursuant to s 78 on 7 July 2020.[63] The appellant indicated that it denied liability for the psychological injury, opined by Dr Takyar as moderate to severe depression and anxiety, which the appellant said would, in any event, constitute a secondary psychological injury.
[62] ARD, pp 27–28.
[63] ARD, pp 8–14.
The respondent’s claim proceeded to arbitration. The respondent’s relevant submissions were recorded in the transcript of proceedings dated 1 October 2020. In summary, she argued that:
(a)    her injury consisted of an aggravation of her pre-existing psychiatric condition, which Dr Anderson described as an aggravation of an obsessive/compulsive disorder and increased apprehension and anxiety;
(b)    it was a primary injury because it immediately manifested in a deterioration of her mental state following the contraction of the physical injury;
(c)    the symptoms included excessive cleaning and hand washing;
(d)    there were significant deficiencies in the opinion of Dr Vickery that the respondent solely suffered from an obsessional/compulsive disorder, which was constitutional and did not relate to her employment, so that his opinion should not be accepted.
The appellant’s submissions were recorded in the transcript of proceedings dated 9 October 2020, submitting that:
(a)    the respondent’s complex psychological symptoms and her treatment were extensive;
(b)    Dr Takyar’s opinion had not been produced in a fair climate, in that he did not have a complete history of the diagnoses and extensive treatment prior to 27 February 2017;
(c)    the anxiety issues complained of by the respondent after 27 February 2017 involved complaints of a domestic and social nature and were not related to the contraction of the pseudomembranous colitis;
(d)    the respondent had symptoms of obsessive/compulsive disorder, which was a constitutional condition, and in any event, pre-dated 27 February 2017 and was therefore not caused by her employment, and
(e)    if the respondent did suffer a psychological injury, it was a secondary.
In Shore v Tumbarumba Shire Council,[64] Acting President Roche (as he then was) said (citations omitted):
“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 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd ) ‘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’.”[65]
[64] [2013] NSWWCCPD 1 (Shore).
[65] Shore, [36].
In Chanaa v Zarour,[66]Campbell JA (with Bathurst CJ and Tobias AJA agreeing) said (citations omitted):
“It is indisputable that a trial judge is required to conduct the proceedings in accordance with procedural fairness. One aspect of that requirement of procedural fairness is that the decision should be given on the basis of issues that have been litigated in the course of the trial. In Banque Commerciale SA en Liquidation v Akhil Holdings Ltd at 286-7 Mason CJ and Gaudron J said:
‘The function of pleadings is to state with sufficient clarity the case that must be met. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.’”[67]
[66] [2011] NSWCA 199 (Chanaa).
[67] Chanaa, [13].
It is apparent that the parties proceeded on the basis that the Arbitrator was required to consider the evidence of Dr Vickery, which included Dr Vickery’s opinion that the respondent suffered from an obsessive/compulsive disorder. The appellant had squarely raised the issue as to the diagnosis of the respondent’s psychological condition and its aetiology. In the context of this issue being raised in response to the respondent’s allegation of injury, it follows that there was, therefore, a dispute within the meaning of ss 289 and 289A of the 1998 Act.
The appellant maintains that the Arbitrator erred because neither party submitted that the respondent suffered an obsessive/compulsive disorder which was caused by the respondent’s employment. This allegation is correct. The appellant submitted to the Arbitrator that the respondent’s obsessive/compulsive disorder was constitutional. The respondent pointed to the evidence of Dr Anderson that her obsessive/compulsive traits were aggravated by the work related injury, but did not submit that the injury was an injury simpliciter within the meaning of s 4(a) of the 1987 Act or whether it constituted a disease within the meaning of s 4(b)(i) of that Act.

As observed by Campbell JA in Chanaa, the proceedings are required to be conducted in accordance with the principles of procedural fairness, that is, the Arbitrator’s decision must be based upon the issues that were litigated in the course of the trial.
The High Court discussed the manner in which procedural fairnesscases are approached by the courts in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam,[68] where Gleeson CJ said:
“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. … Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairnessor natural justice, the concern of the law is to avoid practical injustice.”
[68] [2003] HCA 6; 214 CLR 1, [37].
As McHugh J said in Re Refugee Review Tribunal; Ex parte Aala:[69]
“One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.”
[69] [2000] HCA 57; 204 CLR 82, [100].
In Ucar v Nylex Industrial Products Pty Ltd,[70] Redlich JA observed:
“Where the risk of an adverse finding being made does not necessarily inhere in the issues to be decided or where the facts or the inference which the judge contemplates drawing from the facts and which gives rise to such a risk is unknown to the party, the fundamental rule of fairness requires the decision-maker in some way to draw attention to the existence of that risk.”
[70] [2007] VSCA 181, [43].
In this case, the Arbitrator went beyond the submissions put to him by the respondent that she suffered from an aggravation injury and determined that the respondent sustained a psychological injury within the meaning of s 11A(3) of the 1987 Act in the form of an obsessive/compulsive disorder. The Arbitrator expressly rejected the submission that the injury was an aggravation of a disease within the meaning of s 4(b)(ii) of the 1987 Act.
It is not apparent from the transcript or the Arbitrator’s reasons that the Arbitrator drew to the attention of the parties his intention to consider a matter that was not put to him by either party. The appellant, having not been warned of the risk of the adverse finding, ought to have been given the opportunity to make submissions on point and is not surprisingly aggrieved by the Arbitrator’s decision.
It follows that the Arbitrator erred in reaching his conclusion and this is sufficient to set aside his determination. Ground One of the appeal succeeds.
The appellant also alleges in Ground One of the appeal that there was no evidence before the Arbitrator to support the conclusion that the obsessive/compulsive disorder resulted from the work injury. Given that Ground One of the appeal is made out on a different point, and the matter is to be remitted for re-determination, it is not necessary or appropriate for me to consider this submission.
In Ground Two of the appeal, the appellant also alleges error on the part of the Arbitrator in failing to consider whether the respondent’s employment was the main contributing factor to the injury. The test of “main contributing factor” only applies if the injury constitutes either a disease or an aggravation of a disease within the meaning of ss 4(b)(i) or 4(b)(ii) of the 1987 Act. If the injury is an injury within the meaning of s 4(a) of the 1987 Act, the test of “main contributing factor” does not apply, but there is a requirement to determine whether the respondent’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act.
The Arbitrator did not make a determination as to whether the injury was an injury simpliciter in accordance with s 4(a) or a disease injury within the provision of s 4(b)(i) of the 1987 Act. His consideration of the relevant sections was limited to him specifically rejecting the respondent’s case that there had been an aggravation of the respondent’s prior psychological condition of anxiety and depression (s 4(b)(ii) of the 1987 Act).
Having failed to address the factors required by either or both s 9A and s (4)(b) of the 1987 Act, the Arbitrator has erred and Ground Two of the appeal also succeeds.
The Arbitrator’s finding that the respondent suffered an injury in the form of a primary obsessive/compulsive disorder is therefore revoked. The issue requires re-determination. I note the respondent requests that the matter be remitted to the same member, however, given that the Arbitrator formed a view in relation to the issue, it is more appropriate to remit the matter to a different member.

DECISION

Paragraph 1 of the Arbitrator’s Certificate of Determination dated 26 October 2020 is confirmed.
The Certificate of Determination is otherwise revoked.
The matter is remitted to a different non-presidential member for re-determination of whether the respondent suffered an injury in the form of an obsessive/compulsive disorder as a result of her employment and any compensation entitlements that flow from the re-determination.

Elizabeth Wood
DEPUTY PRESIDENT

6 May 2021