JELD-WEN Australia Pty Limited v BLH - [2023] NSWPICPD 39

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	JELD-WEN AUSTRALIA PTY LIMITED v BLH [2023] NSWPICPD 39
APPELLANT:	JELD-WEN Australia Pty Limited
RESPONDENT:	BLH
INSURER:	Self-insured
FILE NUMBER:	A1-W6272/21
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	10 July 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 2 June 2022 is confirmed. 2. I direct that the respondent is de-identified from this decision pursuant to rule 132(1)(a) of the Personal Injury Commission Rules 2021.
CATCHWORDS:	WORKERS COMPENSATION – section 4(b)(ii) of the Workers Compensation Act 1987 – main contributing factor – AV v AW [2020] NSWWCCPD 9 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Perry, counsel
Hicksons Lawyers
Respondent:
Mr P Stockley, counsel
Garling & Co Lawyers
DECISION UNDER APPEAL	[Citation redacted]
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	2 June 2022

INTRODUCTION AND BACKGROUND

This is an appeal from a Certificate of Determination dated 2 June 2022.
BLH (the worker/respondent) was employed by JELD-WEN Australia Pty Limited (the employer/appellant) as a customer clerk/data specialist from December 2017. Her employment was terminated on 17 April 2020.
The respondent alleged that she sustained a psychological injury within s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). The deemed date of injury was 20 January 2020 which was also her last day at work.
The basis of the claim was that the psychological injuries had been caused by bullying and harassment in the workplace.
The appellant paid compensation to 17 April 2020. The s 78 notice denied further benefit on the basis that the respondent had not sustained injury in the course of employment as required by s 4 of the 1987 Act.
The parties agreed that the main issues for determination by the Member were:
“(a) whether the [respondent’s] employment [was] the main contributing factor to an aggravation to an underlying psychological condition, and
(b) whether the [respondent] has any capacity for employment, and if so to what extent.”[1]
[1] Statement of Reasons in decision below dated 2 June 2022 (reasons), [4].
The matter was heard by the Member on 4May 2022.
The Member ruled, over objection from the appellant, that the respondent would be permitted to rely upon a report from Dr Allan, a consultant psychiatrist, dated 27 July 2021.
The Member determined the first issue in favour of the respondent as follows:
“On balance, I find that the preponderance of the medical evidence establishes to the requisite standard that the [respondent’s] employment was the main contributing factor to [the] aggravation of her underlying psychological condition which forms her claimed injury. As such, I find for the [respondent] on the question of primary liability. In so finding, I prefer the opinions of Dr Nguyen, treating psychiatrist and Dr Allan, [Independent Medical Examiner] for the [respondent] to those of Dr Roberts, [Independent Medical Examiner] for the [appellant].”[2]
[2] Reasons, [45].
On the issue of capacity for employment the Member found:
“Accordingly, in my view, the evidence establishes on the balance of probabilities that the [respondent] remains totally incapacitated for employment and has been since 20 January 2020.”[3]
[3] Reasons, [49].
The appeal concerns the determination of primary liability against the appellant. The determination as to the respondent’s capacity for employment is not the subject of appeal.
The appellant seeks an order pursuant to s 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that the decision be revoked and that in its place an award should be entered in favour of the employer.

CERTIFICATE OF DETERMINATION

On 2 June 2022, the Commission issued a Certificate of Determination in the following terms:
“1.     The [respondent] suffered a psychological injury by way of aggravation of a pre-existing condition in the course of her employment with the [appellant], with a deemed date of injury of 20 January 2020.
2.      As a result of the injury referred to in (1) above, the [respondent] has been and remains totally incapacitated for employment.
3.      The [respondent] was paid weekly benefits up to 17 April 2020, at which point liability for her claim was denied.
4.      At the date of her injury, the [respondent’s] pre-injury average weekly earnings (PIAWE) were $1,153.85 per week.
5.      The [appellant] is to pay the [respondent] weekly compensation at the rate of $923.08 per week (being 80% of her PIAWE) from 18 April 2020 to date and continuing.”

THE MEMBER’S STATEMENT OF REASONS

There was a great deal of material before the Member, including extensive statements from the worker and her fellow employees.
The Member directed himself as to the relevant law in the following terms:
(a)    As the respondent was alleging an aggravation or exacerbation, she was required to demonstrate employment was the main contributing factor to the aggravation of her condition, not to the underlying condition itself.[4]
(b)    It was “well-settled law” that when examining the question of causation in the context of the main contributing factor test, it was necessary to look at the cause of the aggravation or exacerbation, not the underlying condition.[5]
(c)    The proper test was whether the aggravation impacted on the individual concerned. It was not necessary for the overall underlying condition to be made worse. It was necessary to show a demonstrably increased impact of the injury or condition caused by a work related aggravation to the worker.[6]
(d)    The requirement of a main contributing factor involves a more stringent connection with employment than a requirement of a substantial contributing factor.[7]
(e)    The question of main contributing factor is one of causation. It followed that it was necessary to examine that question on a common sense basis after evaluation of all of the evidence.[8]
(f)    Where a relevant aggravation might involve both employment and non-employment factors, the evaluative approach involves a consideration of the causative role of both. “It is necessary to consider firstly whether there were competing causal factors of the aggravation, and in considering those relevant contributing factors, whether employment represented the main one.”[9]
[4] Reasons, [16].
[5] Reasons, [17].
[6] Reasons, [18].
[7] Reasons, [19], citing AV v AW [2020] NSWWCCPD 9 (AV v AW), per Snell DP.
[8] Reasons, [20].
[9] Reasons, [21].
There is no challenge to the statements of principle or that the Member misdirected himself as to the law.
The worker was cross-examined by experienced counsel via video link in a manner regarded by the Member as thorough and appropriate.
The Member accepted the respondent as a witness of truth who made appropriate concessions as to her pre-existing psychological issues.[10] The finding with respect to the respondent’s credit is not the subject of challenge in the appeal.
[10] Reasons, [11], [39].
The Member said:
“I make no criticism of the [respondent’s] credit in this matter, and to the extent there is a discrepancy between her evidence and those of other lay witnesses, I prefer her version of events.”[11]
[11] Reasons, [23].
The evidence of the principal protagonist, Mr Palmer, the appellant’s administration manager, was disapproved of by the Member who, having previously recorded the content of the appellant’s investigatory file notes prepared by Ms Honeybell of the Human Resources Department, said this:
“It is apparent form [sic] the content of these file notes, which were put into evidence by the [appellant], that the [respondent’s] concerns regarding her relationships with her manager [Mr Palmer] were real, and the contents of the file note constitute an admission by Mr Palmer that his conduct towards the [respondent] had not been appropriate. The file notes also contradict to an extent the contents of Mr Palmer’s supplementary statement in which he denies speaking inappropriately either about or to the [respondent]. There is no adequate explanation for the discrepancy between the file notes and Mr Palmer’s later statement, and to the extent there is such a discrepancy, I prefer the contemporaneous file notes to his later statements.”[12]
[12] Reasons, [29].
The Member found the discrepancy between Mr Palmer’s statement and the file notes to be “alarming”.[13]
[13] Reasons, [30].
The Member identified a number of pre-existing factors which the respondent conceded played a part in her psychological condition. These included an assault on her son by a school administrator in a position of authority and the death of her mother approximately one year before the deemed date of injury.[14]
[14] Reasons, [22].
The treating psychiatrist, Dr Nguyen, made reference to these pre-existing factors which played a part in the respondent’s condition, however, he “nevertheless found the [respondent’s] employment was the main contributing factor to the aggravation of it.”
Of Dr Nguyen’s evidence, the Member said:
“As a treating practitioner who has had the benefit of seeing the [respondent] over a lengthy period of time, in my view Dr Nguyen’s opinion carries significant weight unless it can be shown there was some demonstrable error in either his reasoning as to causation or in relation to the history provided to him and recounted by him.”[15]
[15] Reasons, [24].
The appellant submitted that Dr Nguyen had effectively downplayed the effect of the pre-existing matters, but the Member rejected this submission saying:
“Dr Nguyen is a treating practitioner and provides a view which is wholly supportive of the [respondent’s] claim. In doing so, he has had regard to the non-work-related factors disclosed to him.”[16]
[16] Reasons, [26].
The appellant conducted an internal investigation of the respondent’s complaints. The results were comprised in file notes prepared by Ms Honeybell. The notes “plainly disclose a problematic relationship between the [respondent] and Mr Palmer.”[17]
[17] Reasons, [27].
In the file note concerning Mr Palmer’s response to the complaint, Ms Honeybell wrote:
“[Mr] Palmer acknowledged what had been occurring and that he did have the meeting with [the respondent] on Thursday 16^th January 2020. [Mr Palmer] said since that discussion, he had made a conscious effort to shut down any conversation regarding [the respondent] and hasn’t spoken to anyone about her or the conversation since.”[18]
[18] Reasons, [28].
The Member formed a view adverse to the appellant. He said:
“In my opinion, the contents of the section 78 notice do not sit well with the contemporaneous file notes of Ms Honeybell in which she confirmed Mr Palmer admitted to the [respondent’s] concerns surrounding what was being said about her and that the allegations as to how she was treated were based in fact. Moreover, it is not necessary for a worker alleging psychological injury to proceed with a formal (or indeed informal) complaint process to succeed in establishing the presence of an injury. The fact a worker decides not to take matters further in the context of workplace tension or conflict should not be used against them as part of a reason for disputing the presence of an injury. That is especially so in the context of a matter such as this where not only the [respondent] but the manager about whom she complained each acknowledge there were issues between them at work.”[19]
[19] Reasons, [31].
The Member acknowledged that the respondent on 20 January 2020, the last day upon which she worked, had had a confrontation with a fellow employee, Ms Elliott. He said “it is also apparent that there had been a number of issues in the workplace which materially caused or contributed to her condition.”[20]
[20] Reasons, [32].
Importantly, the Member said:
“These include, for example, the discussion and altercation with Mr Palmer only several days before 20 January in which she made a complaint of the way in which she had been treated by him for a period of time.”[21]
[21] Reasons, [33].
The clinical notes of the GP and psychiatrist included the respondent’s complaint of ongoing stresses in the workplace for over 12 months. This was consistent with the case advanced by the respondent; the opinion of Dr Nguyen, and the statement of Ms Honeybell “who herself indicated the [respondent] was having issues at work throughout 2019.”[22]
[22] Reasons, [34].
The history in Dr Nguyen’s report dated 23 November 2021 was “broadly consistent with the [respondent’s] evidence”.[23]
[23] Reasons, [36].
The Member preferred the views of Dr Nguyen to those of Dr Roberts, independent medical examiner for the appellant. Furthermore, Dr Nguyen’s opinion was broadly supported by Dr Allan, independent medical examiner for the respondent.
Of Dr Roberts’ evidence, the Member said it “incorrectly focuses on the cause of the underlying psychological condition from which the [respondent] suffers, rather than the cause of the aggravation which forms part of her alleged injury.”[24]
[24] Reasons, [37].
He said the history obtained by Dr Roberts:
“… of workplace problems is consistent with the [respondent’s] version and the contemporaneous documents. Dr Roberts took a history of external stressors, including the death of the [respondent’s] mother and the assault on her son. Dr Roberts noted the conduct in the workplace may well have affected the [respondent] owing to her pre-existing vulnerability to psychological injury due to her pre-existing condition. He then, however, makes the following comment which I believe demonstrates an error on his part as to the nature of the alleged injury. At page 12 of his first report, Dr Roberts says:
‘…
In regard to [the respondent’s] diagnosis I consider that an appropriate diagnosis would be that of an aggravation of a pre-existing state arising as a result of exposure to the stressors referred to in the workplace but I do not consider that these stressors were a substantial cause of the decompensation, the substantial cause being the vulnerability of the pre-existing condition.’”[25]
[25] Reasons, [39].
Dr Roberts’ opinion was “not an appropriate characterisation of what is required to find a psychological injury by way of aggravation.”[26] The Member said the opinion was in error on two bases:
“… Firstly, he mischaracterises the very nature of injuries by way of aggravation in that he acknowledges the worsening condition but reverts to saying it is caused by the underlying, pre-existing condition. ... On his own report, Dr Roberts appears to concede the workplace stressors caused the relevant aggravation.
Secondly, Dr Roberts refers to a ‘substantial contributing factor’ which is not the test for an injury by way of aggravation. … The important error in this part of Dr Roberts’ reasoning is that he is looking to the cause (be it substantial or main) of the underlying condition, not the aggravation itself.”[27]
[26] Reasons, [40].
[27] Reasons, [41]–[42].
Dr Roberts’ second report was rejected because it failed to “adequately deal with the fact that the [respondent] was able to continue with her employment despite outside stressors, and it was only when matters came to a head with Mr Palmer and then Ms Elliott that [the respondent] was rendered incapacitated for employment.”[28]
[28] Reasons, [43].
The Member said:
“What becomes apparent not only from Dr Allan’s report but from the preponderance of the medical evidence is the [respondent] was able to continue working until her condition worsened as a result of the workplace stressors.”[29]
[29] Reasons, [44].
The Member then quoted from Dr Allan’s report and conclusion. It is unnecessary to set out the entire passage quoted by the Member but, because of its relevance to the appeal, I set out part of that conclusion quoted by the Member as follows:
“Furthermore, there was the stress of a ‘loan’ provided to a co-worker [Ms Elliott] who then did not pay her back in a timely fashion and had verbally ‘attacked’ [the respondent] in the workplace [at] some point thereafter. These were all relevant stressors but they were not the cause of her decline in mental state. The enduring difficulties with Mr Palmer over a 12-month period were the predominant cause of a decline in her mental state, in my opinion, with the personal issues involving her mother’s death, her child’s self-harm ideation and a financial issue as being minor contributing factors to the decline in her mental state.”[30]
[30] Reasons, [44], quoting from Dr Allan’s report dated 27 July 2021, Application to Resolve a Dispute (ARD), p 147.

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.

ON THE PAPERS

The parties do not seek an oral hearing.
Section 52(3) of the Personal Injury Commission Act 2020 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 and enabling legislation without holding any conference or formal hearing.”
Procedural directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing.
I am so satisfied and propose to determine the matter ‘on the papers’ without holding any conference or formal hearing.

NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

Section 352(5) of the 1998 Act pursuant to which this appeal is brought provides:
“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 ambit of the jurisdiction which I exercise is settled and need not be explicated at length at this time. The appeal requires demonstration that the decision appealed against was affected by error, the Presidential Member is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable.[31]

GROUNDS OF APPEAL

Ground One: To reach his conclusion that the worker had established that employment was the main contributing factor to the aggravation of her underlying condition, the Member specifically and erroneously proceeded on the basis that the worker’s qualified medical expert supported that conclusion

[31] Northern NSW Local Health Network v Heggie [2013] NSWCA 255.

Appellant’s submissions

The appellant sets out a narrative chronology. The challenge is as to the finding at [45] of the reasons (set out at [9] above).
The conclusion that Dr Allan provided support for the proposition that the worker’s employment was the main contributing factor to the aggravation of the worker’s psychological condition is not accepted by the appellant, indeed it is then said Dr Allan “had done no such thing”.
The appellant refers to the question posed to Dr Allan in the letter requesting the report, in which the doctor was asked to opine on whether the worker’s employment was “a substantial contributing factor to the injury?” with guidance as to what substantial contributing factor meant. The response given by Dr Allan was in the affirmative.
After referring to AV v AW, at [60], the appellant submits:
“Member Burge has expressly been influenced by a conclusion that Dr Allan had provided evidence meeting the requirement set out by Deputy President Snell. In fact Dr Allan may have provided evidence that employment was a substantial factor in the worker’s injury, but this is not the test. As a result of the question posed to him …, Dr Allan had been required to consider whether employment was or was not an insignificant factor. His evidence, then, given the question that was posed to him, was no more than that contribution of employment was not insignificant.
This of course, falls well short of evidence that employment was the main contributing factor. Member Burge’s failure to recognise this constitutes a material error, given that it explicitly led to the Member preferring the conclusion sought by the worker, to that proposed by the [appellant] employer.”[32] (emphasis in original)
[32] Appellant’s submissions, [15]–[16].

Respondent’s submissions

The respondent provides the contention that Dr Roberts’ reports, properly understood, supported a finding of injury consisting of an adjustment disorder superimposed on a pre-existing condition. I will deal with that contention at the end of these reasons.
The respondent submits that the determination of the issue of main contributing factor to the aggravation of a disease “is not a purely medical question but [is] an evaluative process. The absence of medical evidence addressing the ultimate question is not fatal”.[33]
[33] Respondent’s submissions, [5], citing AV v AW, [63].
The respondent submits that the appellant does not appear to acknowledge this principle.
The appellant argues that the Member erred in reaching his decision in the absence of express opinions by the respondent’s treating and qualified medical practitioners as to the contribution of employment as the main contributing factor to the aggravation of the disease. The respondent submits that even if this were found, this cannot constitute error.
The respondent submits that Ground One does not identify error of law or fact and exemplifies the error of principle underlying the appellant’s approach. The “passage of the Member’s reasons that it seeks to impugn [reasons at [45]] is entirely consonant with the approach identified by [Deputy President] Snell in AV v AW … Clearly, the Member engaged in the necessary evaluative process.”[34]
[34] Respondent’s submissions, [8].
The respondent says that Dr Allan did not recite in his reasons the words “main contributing factor” but that was a matter for the Member not the doctor.
The respondent submits that in any event, Dr Allan came close to reciting the “magic words” in the passage of the opinion quoted by the appellant in its submission at paragraph [12].

Appellant’s submissions in reply

In reply, the appellant submits that because the worker’s solicitor informed Dr Allan that substantial contributing factor was to be taken as a not insignificant factor, Dr Allan’s opinion could “not be higher than an opinion that the contribution of employment toward the aggravation of the worker’s disease was no more than a contribution which was not insignificant.”[35]
[35] Appellant’s submissions in reply, [10].
It followed that Dr Allan’s conclusion was well short of the test of main contributing factor.
The appellant takes issue with the submission made by the respondent[36] that “one substantial contributing factor must, by necessity constitute the main contributing factor”. However, even accepting that proposition, the appellant submits that Dr Allan expresses an opinion as to the substantial contributing factor and does not express an opinion as to the main contributing factor as required by the legislation.
[36] At respondent’s submissions, [10].

Consideration

In AV v AW Snell DP reviewed the authorities relevant to “main contributing factor”, contrasting this term with “substantial contributing factor”, and said the following can be taken from those authorities:
“(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[37]
[37] AV v AW, [78].
I respectfully agree and adopt that analysis.
In Ground One of the appeal, the appellant focuses on the Member’s reliance on the opinion of Dr Allan but this does not recognise that the Member was persuaded by a number of matters which he considered and that Dr Allan’s opinion was regarded as a supporting, rather than determinative, opinion.
The Member found the facts in favour of the respondent.
While the solicitor’s interrogation of Dr Allan may not have addressed the statutory enquiry, Dr Allan’s reply was broadly expressed. He said, “the treatment from Mr Palmer was the substantial contributing factor to the deterioration and exacerbation of [the respondent’s] pre-existing major depressive disorder”.[38] (emphasis added)
[38] ARD, p 149.
As understood by the appellant, the respondent’s submission at [10] is that if the doctor speaks of “the substantial contributing factor”, it must follow that the factor is the main contributing factor. The appellant challenges this proposition in the submissions in reply. But with respect, that argument is not to the point.
The appellant focuses on a specific part of Dr Allan’s report. However, the Member considered the entire report in the context of the other evidence. When this is done, the effect of Dr Allan’s evidence is as described by the Member, namely, to support the conclusion that the employment was the main contributing factor.
There is an important passage quoted by the Member at [44] of the reasons in which Dr Allan says that “the enduring difficulties with Mr Palmer over a 12-month period were the predominant cause of a decline in her mental state … with the personal issues involving her mother’s death, her child’s self-harm ideation and a financial issue as being minor contributing factors to the decline in her mental state.”[39] (emphasis added)
[39] ARD, p 147.
Section 4(b)(ii) requires employment to be the main contributing factor to the aggravation of the disease. Dr Allan does not use the words “the main contributing factor”, he says “[t]he enduring difficulties with Mr Palmer over a 12-month period were the predominant cause for her decline in mental state”. This is not an expression of opinion in terms of the statute. But it does not seem to me that the expert needs to use the precise terminology of the section to provide useful evidence.
In this case Dr Allan’s expression of opinion as “predominant” appears to me to conform to the essential notion behind the legislative expression “main contributing factor”. This is not to suggest that “predominant cause” is the equivalent of “main contributing factor” in s 4(b)(ii).
Dr Allan’s opinion provides evidence that the events in the course of employment involving Mr Palmer were the main contributing factor to the respondent’s deteriorating mental health.
The narrow focus in the appellant’s submissions in support of this ground overlooks the extent to which the Member’s conclusion was the result of a wide ranging evaluation of the factual and medical evidence.
The factual evaluation of the evidence led the Member to conclude the respondent should be preferred over any inconsistent or contradictory evidence given by Mr Palmer. The preference for the respondent’s evidence was joined with a preference for the evidence of the treating specialist, Dr Nguyen, over the evidence of Dr Roberts.[40] Those conclusions of themselves would have been sufficient to support the finding of injury.
[40] See reasons, [44].
The Member found further support for his conclusion to prefer Dr Nguyen’s opinions over Dr Roberts’ because they were “broadly supported by Dr Allan”. The Member based his conclusion on the treating specialist, Dr Nguyen. Dr Allan’s opinion was peripheral and not decisive.
Ground One of the appeal is rejected.

Ground Two: In preferring the evidence of Dr Allan, the Member failed to observe that that evidence had been based on a flawed premise, given that Dr Allan had not been provided with relevant facts

Appellant’s submissions

The appellant submits that:
“Dr Allan was provided with no account by the worker of the savage interchange with [Ms Elliott] that immediately preceded the onset of the listed symptoms and of the panic attacks. Nor did Dr Allan receive a history from the worker of the suicidal behaviour of the worker’s son, …. These matters were, of course, central in the worker’s account in her messages to [Ms Elliott]. The actions of [Ms Elliott] had shattered the worker, to use the worker’s expression, yet Dr Allan was inhibited by the worker’s account of herself from these matters into account in determining whether or not employment was the main contributing factor to the aggravation of her psychological condition, even if he had addressed that question, which he did not.”[41]
[41] Appellant’s submissions, [21].
The Member’s conclusion at [35] of the reasons that Dr Allan accepted the worker’s version of the events that the workplace stressors were the main contributing factor to the deterioration of her condition was “opaque”. In the appellant’s submission, “[n]either the worker nor Dr Allan gave an account that workplace stressors were the main contributing factor to the deterioration in her condition. Member Burge was clearly guided by his misconception, thus falling into an error which influenced his determination of the issue.”[42]
[42] Appellant’s submissions, [23].
The appellant cites Hevi-Lift (PNG) Ltd v Etherington.[43] In those passages, McColl JA made various observations as to the circumstances in which a court should not act upon an expert opinion, the basis of which is not explained by the witness expressing the opinion.
[43] [2005] NSWCA 42, [84]–[86].
The appellant proceeds from that statement of principle to make the following submission:
“Here, Member Burge concluded that Dr Allan’s opinion provided evidence capable of satisfying sec 4(b)(ii). The flaw in the opinion (to the extent that there was any relevant opinion) was, as it was in Hevi-Lift, the failure of an expert to provide an explanation, and in addition that Dr Allan did not, indeed could not, provide any assistance on the question of whether employment was the main contributing factor to the aggravation of a worker’s underlying condition, since Dr Allan was not appraised by the worker … of the competing factors and did not in any event address the question. To the extent that Dr Allan did consider minimal the role of [the son’s] suicidal actions and the ‘shattering’ actions of [Ms Elliott], he did so without any explanation of why they should be seen as so trivial.”
The appellant says that the specialist, Dr Allan, was not informed of the exchanges with Ms Elliott, which it describes as “emotionally charged” and as “an attack”.
The appellant furthermore complains that Dr Allan provides no reasoning for his expressed view that the worker’s mother’s death, or her son’s suicidal behaviour and the conduct of Ms Elliott were but minor factors. His observations in this regard fall into the category of a bare ipse dixit, a category discussed, also by McColl JA, in South Western Sydney Area Health Service v Edmonds.[44]
[44] [2007] NSWCA 16, [130]–[132].
It followed, so the appellant submits, that to the extent that the Member clearly did consider Dr Allan’s report provided support for the Member’s conclusion, the Member erred in law.

Respondent’s submissions

The respondent submits:
“This is just wrong. The relevant primary facts were those found by the Member, not those that the appellant would have preferred to be found.
In any event, there is no doubt that Dr Allan was provided with all of the allegations embraced by the appellant. So much is clear from the fact that he was given and took the opportunity to review the histories and opinions recorded by Dr Roberts.”[45]
[45] Respondent’s submissions, [12]–[13].

Appellant’s submissions in reply

The appellant submits that Dr Allan’s opinion was given in the absence of his considering the relevant material and therefore the opinion was flawed. The appellant submits that the worker was “devastated” by the loss of her friendship and by the fiercely hostile exchanges that she had undergone with her close friend, now former friend, Ms Elliott, and that there is no doubt that Dr Allan was not provided with any of the material relevant to the intensity of the response to the altercation with Ms Elliott.
The appellant submits:
“In order to provide an opinion which was of any value to the tribunal, the expert needed the opportunity to consider the factors that were not work-related and to compare them with the factors that were work-related before determining whether the latter was the main contributing factor to the aggravation of the worker’s condition.”[46]
[46] Appellant’s submissions in reply, [17].
There was no challenge to the authenticity of the text message exchanges to which reference has been made, they were facts. They were not rejected by the Member and there can be no doubt of their relevance. Given that Dr Allan did not address ‘main contributing factor’, and given that in any event he was not in a position to make the assessment, the appellant argues that it was an error for the Member to regard his opinion evidence as of value to the central issue.

Consideration

There is a sense that the complaint with respect to this ground of appeal is not that Dr Allan did not have and take into account the non-employment factors, but that he failed to give these factors the emphasis and importance that the appellant would wish to attach to them.
Plainly Dr Allan had the essential information because he had and considered Dr Roberts’ report of 16 March 2020, and also a report of Dr Khan, consultant psychiatrist, of 21 June 2020. Dr Allan also had Dr Nguyen’s reports and the notes from the general practitioner. Dr Roberts in particular had the history in detail and emphasised the non-employment aspects.
Dr Allan, apart from being aware of these histories, expressly said:
“Furthermore, there was the stress of a ‘loan’ provided to a co-worker who then did not pay her back in a timely fashion and had verbally ‘attacked’ [the respondent] in the workplace [at] some point thereafter. These were all relevant stressors but they were not the cause of her decline in mental state. The enduring difficulties with Mr Palmer over a 12-month period were the predominant cause of a decline in her mental state, in my opinion, with the personal issues involving her mother’s death, her child’s self-harm ideation and a financial issue as being minor contributing factors to the decline in her mental state.”[47]
[47] ARD, p 147.
The medical assessment of the psychological impact of the interchange between Ms Elliott and the respondent is not advanced by the appellant’s counsel’s description as “the savage interchange”. The essential question is what did the examining doctor make of the history that he was given from various sources. In light of that evidence what determination is called for from the Member.
Furthermore, the respondent’s submission that it is the facts as found by the Member that are determinative is correct. It is trite but it is a matter for the “trial judge” to determine whether the history given to the doctors sufficiently corresponds with the history accepted by the tribunal.
The history accepted by the Member concerning these issues was regarded by the Member as corresponding sufficiently with the histories recorded by Drs Nguyen and Allan to satisfy him that the opinions expressed on the basis of those histories should be accepted. The Member expressly notes at [44] of the reasons that Dr Allan had a comprehensive history and had taken into account the external stressors.
The appellant has not demonstrated that the history recorded by Dr Allan was so discordant with the history accepted by the Member as to mean that the Member’s acceptance of Dr Allan’s opinion based on the history was in error. Furthermore, it is not correct that Dr Allan regarded the non-employment stressors as “trivial”. He said they made a minor contribution but he nevertheless regarded them as relevant. Other experts may have attached different weight to the non-employment factors, but the Member’s acceptance of the conclusions that Dr Allan attached was not an error on the Member’s part.
Ground Two of the appeal is rejected.

Ground Three: To reach his conclusion that the worker established that employment was the main contributing factor to the aggravation of her underlying condition, the Member further specifically and erroneously proceeded on the basis that the worker’s treating psychiatrist supported that conclusion

Appellant’s submissions

The appellant submits that Dr Nguyen’s report of 23 November 2021 failed to address the correct statutory enquiry.
The answer to question 5,[48] relating to the applicability of s 9A of the 1987 Act, and the opinion of Dr Nguyen that employment was a substantial causative factor in the development of the respondent’s symptomatology falls well short of support for the proposition that employment was the main contributing factor to the aggravation of a disease. Dr Nguyen, like Dr Allan, did not address the question posed by s 4(b)(ii).
[48] ARD, p 158.

Respondent’s submissions

The respondent submits that this ground is affected by the same error of approach advanced in Ground One. An expression of an opinion on the ultimate question may be desirable but is not sine qua non to the determination. The ground does not attempt to identify the passage of the reasons that is said to contain the complaint of error.

Appellant’s submissions in reply

The appellant refers to Secretary, Department of Education v BB[49] concerning competing arguments regarding causation. Wood DP was there considering s 11A in a psychological injury matter and concluded:
“Whether events were causative of the injury is a matter for medical opinion. Whether they fall within the parameters of s 11A(1) is a legal question.”
[49] [2021] NSWPICPD 21, [188].
From that the appellant submits:
“For Member Burge to conclude that there was persuasive evidence before him on the issue of main contributing factor, when neither medical expert had addressed the question and when neither medical expert had before him anything approaching a full account of the competing factors, was for the Member to fall into error.”[50]
[50] Appellant’s submissions in reply, [22].

Consideration

The reference to the answer to question 5 in the report of Dr Nguyen dated 23 November 2021 is unhelpful because the material before the Member did not include the letter requesting the report. The criticism of the Member that he followed and relied upon Dr Nguyen’s opinion to question 5 is, with respect, unfair. It was up to the appellant in the proceedings to object to the evidence if sense could not be made of it without the question being before the Member. In so far as no objection was taken to the report in the form in which it was received, the Member cannot be criticised for making what he could of the answer.
Of more significance in my view is that the criticism fails to take account of the entire answer given by Dr Nguyen.
That answer was as follows:
“In my opinion, her employment with JELD-WEN Australia Pty Ltd was a substantial contributing factor to her current mental disorders (the injury). In my opinion, employment was a substantial causative factor to the development of her symptomatology.
In my opinion, her Panic Disorder is related to her work injury. She denied Panic Attacks prior to her work injury.
From what I am aware, she has Major Depressive Disorder relapse related to her work injury. She and her ex-partner report she was in remission from Major Depressive Disorder prior to her work injury. As far as I am [aware], prior to her work injury, she was able to work full-time and was functioning adequately prior to the work injury.
Her main distress when I have spoken to her has been related to alleged previous workplace bullying and harassment from her supervisor and distress about not being able to access appropriate treatment for her work-related mental health deterioration. She has been consistent in the history she has provided. History from her ex-partner … corroborated the symptoms she reported, her history, and the significance of the work-related issues in her mental health deterioration.
In follow-up with her since seeing me initially, she has remained pervasively depressed and has had frequent Panic Attacks. Her mental disorders have remained severe in the period I have seen her (from 31/3/2020 to currently) and have not resolved.”[51] (emphasis added)
[51] ARD, p 158.

There is a second part to the answer to question 5 which goes on for a further page and a half and is of no apparent relevance.
To the extent the answer to question 5 stands alone, properly understood, the specialist is plainly suggesting that the respondent’s “main distress” was the workplace bullying and harassment from her supervisor.
Again, while the language used by the doctor does not accord precisely with the statutory language, the Member was required to evaluate all of the evidence including the opinion evidence of Dr Nguyen. In my view, the Member was not in error in reaching the conclusion that he did, namely, that Dr Nguyen was of the opinion that the main contributing factor to the worker’s aggravation was the workplace bullying and harassment by the supervisor.
Ground Three of the appeal is rejected.

Ground Four: In concluding that the worker had sustained panic attacks prior to 20 January 2020, the Member fell into material error, in that he ignored both persuasive expert evidence to the contrary and the worker’s own clear histories, which contradicted her evidence

Appellant’s submissions

The appellant submits that there was evidence before the Commission that on leaving the employer’s premises and journeying home after her encounters with Ms Elliott, the worker suffered a panic attack. Further there was evidence that this was her first panic attack.
The appellant submitted at the hearing before the Member that the proximity in time between the confrontation with Ms Elliott and the attack supported the proposition that the confrontation was the significant causative event.
The Member dismissed and rejected that argument because on re-examination, the worker gave evidence that she had suffered panic attacks at work in or about 2019 before any confrontation with Ms Elliott. In accepting that evidence, the Member made no reference at all to the clear accounts given by the worker to both Dr Nguyen and Dr Allan which contradicted her evidence in the Commission.
The appellant points out that Dr Nguyen recorded that the worker had denied to him panic attacks prior to 20 January 2020 and that Dr Allan expressly noted that the worker informed him that she first experienced panic attacks in January of 2020.
The appellant submits that medical practitioners rather than lay persons are in a position to diagnose panic attacks. The worker was very clear in her accounts to both Dr Allan and Dr Nguyen. In rejecting the argument that the first panic attack followed hard upon the confrontation with Ms Elliott, the Member fell into error which affected the outcome of the determination.

Respondent’s submissions

The respondent submits the Member had the benefit of cross-examination of the worker and that he was satisfied about her presentation and reliability. The assessments made by him as to panic attacks have to be assessed in this context.
The respondent makes this submission:
“This was a finding of fact. The Member said that he believed the respondent. He was entitled to make that evaluation. The fact that minds may differ and others might have found otherwise is insufficient to establish error. None has been established.”[52]
[52] Respondent’s submissions, [17], citing Raulston v Toll Pty Ltd [2011] NSWWCCPD 25.

Appellant’s submissions in reply

The appellant submits that the worker’s submissions ignore the fact that a medical practitioner can be expected to have the training and experience to determine what is a panic attack. Further, “[e]vidence emanating directly from the [worker] establishes beyond doubt that on this journey [i.e. the journey home on the last day of work], the worker was suffering from the shattering effect of the pure cruelty and abuse that she suffered at the hands of her former friend. The italicised words are the worker’s”.[53]
[53] Appellant’s submissions in reply, [24].

Consideration

The evidence given in re-examination was as follows:
“MR STOCKLEY: … Now, the other matter that you were asked about was the history you had given to Dr Nguyen about your panic attacks. Do you remember that series of questions?
Yes.
And you said it was not correct that your first panic attack had occurred on the way home from work in January 2020 after your confrontation with [Ms Elliott]. You said that with the benefit of what you now know, there had been an earlier on[e] in December 2019?
Yes
Do you remember that evidence?
Yes.
Can you tell the Commission where it was that that panic attack – sorry … I’ll go back a step. Where were you when that happened?
At work.
And can you remember when that was?
I believe it was the last day of work before the Christmas break.
Thank you. And how long before Christmas Day was – did the Christmas break start?
It would have been about a week.
Thank you. And where did this event occur? I think you’ve already answered that?
Yep.
Do you remember what time of day it was?
I think it was in the afternoon, but I’m not sure.
Thank you. And you’ve told Mr – in answer to Mr Perry’s question, you said you believed you’d had a panic attack. Can you describe what you experienced on that day?
I had pain in my chest and shortness of breath. Yeah, I thought it was a heart thing.
O.K. And how long did it last for?
Just the several – a few minutes.”[54]
[54] Transcript (T) of proceedings, 4 May 2022, T 45.18–46.21.
That evidence was accepted by the Member. The Member’s preference for the respondent’s evidence is not challenged. To the extent there is a contradiction between the workers evidence to the commission and the content of the notes which presumably emanated from the worker in the course of their examinations the evidence accepted by the Member prevails.
Given the appellant does not challenge the Member’s conclusion that he accepted and preferred the evidence of the respondent, no error is demonstrated by showing that that evidence was contradicted by material contained in the medical reports.
Ground Four of the appeal is rejected.

Contention

Respondent’s submission on contention

The respondent submits that Dr Roberts’ reports ultimately support a finding of injury consistent with an adjustment disorder superimposed on a pre-existing condition. It is submitted that such a finding would have established a disease injury pursuant to s 4(b)(i) of the 1987 Act.

Appellant’s submission on contention

The appellant submits that Dr Roberts’ original report of 16 March 2020 was to the effect that the disease was multifactorial in its causation and that Dr Roberts did not support the proposition that employment was the main contributing factor to the disease.

Consideration

Given that the grounds of appeal are dismissed, it is unnecessary to determine the contention.

CONCLUSION

The appeal is dismissed.
Given the sensitive nature of the respondent’s circumstances referred to in evidence, the respondent to this appeal was invited to consider seeking de-identification in accordance with r 132(1)(a) of the Personal Injury Commission Rules 2021 (the 2021 Rules). Both parties agreed to de-identification of the respondent, and accordingly, I direct that this matter be de-identified pursuant to r 132(1)(a) of the 2021 Rules. I note that no application for de-identification of the respondent was made in respect of the earlier decision appealed and thus, the citation of the earlier decision has necessarily been redacted from this decision pursuant to r 132(1)(b) of the 2021 Rules.

DECISION

The Certificate of Determination dated 2 June 2022 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

10 July 2023