Marzuki v Site Workforce Pty Ltd - [2009] NSWWCCPD 154

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Marzuki v Site Workforce Pty Ltd [2009] NSWWCCPD 154
APPELLANT:		Teuku Marzuki
RESPONDENT:		Site Workforce Pty Ltd
INSURER:		Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:		A1- 253/09
ARBITRATOR:	Ms Robin Gurr
DATE OF ARBITRATOR’S DECISION:		18 May 2009
DATE OF APPEAL DECISION:		3 December 2009
SUBJECT MATTER OF DECISION:		Psychiatric injury; section 9A of the Workers Compensation Act 1987; disease contracted in the course of employment; the aggravation, acceleration, exacerbation or deterioration of disease; amendment; new evidence.
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		On the papers.
REPRESENTATION:		Appellant:	Slattery Thompson, Solicitors
Respondent:		Sparke Helmore, Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 18 May 2009 is revoked. The following decision is made in its place: “1. There is an award for the respondent in respect of all claimed injuries including those the subject of amendment specified in the worker’s supplementary submissions on appeal and attached to the letter of 6 October 2009. 2. No order as to costs.”
Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

Mr Teuku Marzuki (‘the worker’) was diagnosed with paranoid schizophrenia in 2007. This appeal concerns his entitlement to be paid workers compensation for this condition by his employer, Site Workforce Pty Ltd (‘Site’), and consequently its insurer, Allianz Australia Workers’ Compensation (NSW) Limited.
The worker was employed as a security guard in August 2001 by Divisional Security (Aust) Pty Ltd. Without his being aware of any change in his employment he later became employed by Site, a labour hire company supplying workers to Multi-dimensional Security Pty Ltd. Those two companies had the same proprietors and there is no dispute as to the worker’s employment by Site which I shall refer to as “the employer”.
The worker’s employment was uneventful until January 2007 when he began work at a duty free warehouse in Alexandria conducted by a company called Nuance. While he was working there he said he was the subject of threats and racial taunts and he thought that illegal activities were taking place. It will be necessary to deal with these matters in greater detail later.
The worker ceased work on 2 February 2007 and has not resumed any employment since that time. He made a written claim for workers compensation which is dated 26 January 2007. In that he stated that he reported his injury to his supervisor, Mr Todd Farrar, on 23 January 2007 which was also the stated date of injury. Puzzlingly, the claim form states that it was given to the employer on 4 January 2007. This is plainly wrong. Under the heading “Injury Details” is written “Anxiety and depression”. As additional information the worker referred to “Life threatening incident”. The worker stated that Dr John Lui was his nominated treating doctor. Since the only certificates in evidence from that doctor are dated 6 February 2007, and from the worker’s own statements and those of others later obtained, it is doubtful that the dates appearing on the claim form are correct. The worker was referred to a psychologist whom he consulted on five occasions, however there are no reports in evidence from that person. Arrangements were made by Dr Lui for the worker to see a psychiatrist, Dr Younan, but the worker returned to his homeland Indonesia, before doing so. While there he was diagnosed by a psychiatrist as suffering from “schizophrenia paranoid”. However, on his return to Australia he was again referred to Dr Younan who saw him on 6 September 2007. The doctor’s diagnosis was the same as that reached in Indonesia. The worker has continued to be treated by Dr Younan.
The insurer accepted liability to pay weekly compensation and treatment expenses and did so for two years until it revised its attitude following a claim made for lump sum compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) on 17 November 2008.
The insurer responded by letter of 2 January 2009 which was headed “Notice Of Dispute Pursuant To Section 74 Of The Workplace Injury Management And Workers Compensation Act 1998”. In that letter the claim made was denied because, while it was accepted that the worker had sustained injury as alleged, the insurer did not accept that the permanent impairment alleged arose out of or was caused by that injury. The insurer relied on the opinion of a psychiatrist, Dr Selwyn Smith.
After an Application to Resolve a Dispute (‘Application’) claiming the lump sum compensation was registered in the Workers Compensation Commission (‘the Commission’) on 16 January 2009, the insurer, by a letter of 5 February 2009 sought to enlarge the reasons for declining to pay the compensation sought. The claim was denied for the following reasons:
“•       We dispute that you received a personal injury arising out of or in the course of your employment pursuant to section 4 of the Act.
•We dispute that employment was a substantial contributing factor to the injury or condition suffered by you, or any aggravation, acceleration, exacerbation or deterioration of an underlying condition pursuant to section 9A of the Act.
•       We consider you misperceived events and/or invented events which did not occur, and that you used marijuana, which led to you developing or activating your non-work-related condition.
•       We dispute that any Whole Person Impairment suffered by you results from your employment with Site Workforce Pty Ltd.
• We dispute your entitlement to section 67 (pain and suffering) compensation, or any alternative, we dispute that your impairment reaches the threshold pursuant to section 67 of the Act.
•We consider that your psychological condition is a constitutional condition completely unrelated to your employment with Site Workforce Pty Ltd.”
In the letter, the opinions of three psychiatrists, Drs Younan, Smith and Terace, were set out. The insurer advised that weekly payments of compensation would cease in six weeks while the payment of treatment expenses was to cease immediately.
A Reply to the Application was lodged on behalf of the employer on 2 February 2009 and on 6 February 2009 the employer sought to rely on the insurer’s letter of 5 February 2009 as a late document. The dispute was referred to a Commission arbitrator who held a telephone conference on 24 February 2009. The claim was not sought to be amended to include a claim for weekly and other compensation, but there appears to have been an understanding between the parties that if the worker succeeded in the claim for lump sum compensation then other payments would be resumed. The matter was set down for conciliation/arbitration on 22 April 2009. At this hearing no oral evidence was relied on and the parties’ legal representatives addressed.
The Arbitrator reserved her decision which was given on 18 May 2009. The Arbitrator found that the worker was not entitled to compensation because the worker’s employment was not a substantial contributing factor to the worker’s injury (section 9A of the 1987 Act). The reasons for the arbitrator’s decision will be considered later.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 18 May 2009 records the Arbitrator’s orders as follows:
“1. There is to be an Award for the Respondent in relation to all claims arising from the injury alleged to have occurred on 23 January 2007.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether:
· the Arbitrator was correct in determining that the provisions of section 9A had not been satisfied in relation to the aggravation, acceleration, exacerbation or deterioration of a disease.
·        the worker’s injury should be regarded as the aggravation, acceleration, exacerbation or deterioration of a disease.
·        the worker should be allowed to rely on fresh evidence.
·        the worker was entitled to amend the claim pleaded.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Because portions of several documents relied on were missing and because the worker sought to rely on a further report of Dr Younan obtained after the Arbitrator’s decision a directions hearing was held on 9 September 2009 at which submissions were made as to the admissibility of that further evidence. I took the opportunity to raise a number of issues with the parties in relation to which they were given leave to make additional written submissions. Those submissions have now been received.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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 further conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

It is not contested that the appeal was lodged within time nor is it disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Accordingly leave to appeal is granted.

EVIDENCE

Worker’s Evidence:

The Application filed by the worker specified that the date of injury was 23 January 2007 which was also the date of notice of injury and the compensation claim. This date has been altered from 6 March 2007. The injury was described as “psychiatric/psychological disorder” and the injury was described as “occurring due to the nature & conditions of applicants work with the respondent”. Not a great deal of documentation is attached to the Application, which is not surprising considering that payments of compensation were continuing and the limited basis on which the insurer initially denied liability. Two reports of Dr Younan were relied on, those of 3 November 2008 and 17 November 2008. In the earlier of those reports Dr Younan recommended that psychiatric treatment continue without which the worker’s condition would worsen. He thought the worker was unfit for his pre-accident duties and would remain so indefinitely. On the available information, the worker’s disability was caused by the “accident” of 23 January 2007.
In the later report, Dr Younan, under a number of headings, assessed the worker’s whole person impairment resulting from his psychiatric injury. He assessed whole person impairment initially at 22% and then assessed a percentage to allow for the effects of discontinuance of treatment of a further 2% giving 20% final whole person impairment. It is unclear whether this was what Dr Younan intended. Earlier reports of Dr Younan were relied by the employer and these will be considered later.
Since the insurer’s letter of 2 January 2009 attached two reports of Dr Smith dated 17 November 2008 the worker also attached them to the Application. Dr Smith was the first psychiatrist to see the worker in Australia. In the longer report Dr Smith recited that he had previously examined the worker on 13 July 2007 and reported to the insurer. Because that doctor’s opinion should be read in the light of the earlier report, I will deal with it later as the employer’s evidence. Dr Smith did, however, in the shorter report assess whole person impairment at 17% which he attributed to paranoid schizophrenia which was not work-related.
Two days before the conciliation/arbitration of 22 April 2009 the worker sought leave, which was granted, to rely on what were referred to as the notes of Dr Lui. These were in fact no more than a number of pathology and X-ray reports which had been incorporated in that doctor’s notes from the originals. At the directions hearing I drew this to the attention of the parties. The worker now seeks to rely on the notes actually made by Dr Lui which had been inadvertently omitted. In response the employer submits that with reasonable diligence those notes should have been placed in evidence prior to this. I am obliged to say that both parties have been careless in relation to forwarding complete copies of documentary evidence relied on to the Commission. It is clear that the worker did intend to put Dr Lui’s complete notes into evidence and that these notes were produced by Dr Lui in response to a direction for production issued at the request of the employer. These had clearly been in the possession of the employer’s solicitors. No prejudice is asserted and in all the circumstances I propose to admit those notes.
The worker had seen Dr Lui on four occasions between 13 April 2005 and 7 June 2006 with a variety of complaints none of which had any apparent psychiatric element. On 6 February 2007 the note was as follows: “stress at work (people who at work said was going to kill him, at work people not want him, he went to the police station and was kept in police station for 3 hour,?)…the above happened about 2 weeks ago… been in the company for 6 years …smoking and cant sleep.” The doctor has recorded under “history”: “Poor sleep. Depressed mood. anxiety, stress worried about losing his job.” Avanza was prescribed.
On 20 February 2007 Dr Lui was told that the worker was not leaving his house and felt that people were watching him. He described having the sensation of formication. On this occasion Dr Lui has noted: “Anxiety/Depression ?.......?Paranoid”. The worker was referred to a psychologist, Ms Wendy Bailey, as well as Dr Younan. Pathology tests and a CT scan of the brain were requested. Although there were entries made for 1, 13, 14 and 15 March 2007 it is not clear that the worker was seen by the doctor on those days and there is nothing of relevance recorded.
On 19 March 2007 the notes relevantly contain the following: “dont want to have shower no shower for 3 days worried and stress too much…. appointment Dr Younan 11/5/07…feel that while in the waiting room some good people outside the street watching him…also people behind his house watching him and they are good people…but not know people before”. When the worker was seen on 12 April 2007 he complained of insomnia and Valium tablets were prescribed. The last entry in the notes is that of 20 April 2007. Relevantly it is as follows: “hear voice spirit army of spirit try to help him to make the earth peaceful..feel other people from other countries make him to have a bad name...no specific to harm other ?Schizophrenia”. On this occasion the worker was prescribed Zyprexa and advised to go to hospital if not better.
Dr Salem, a general practitioner who later began to see the worker, has provided a certificate of unfitness for work dated 2 February 2009. His diagnosis was anxiety nervous disorder. In a separate report of the same date he expressed the opinion that all symptoms related to “the Accident at work …Related Harrassment.”
The worker sought to rely on a late report of Dr Younan clarifying what he said in earlier reports and since Dr Younan’s earlier reports are summarised under the following heading it is convenient to deal with that report there.

The Employer’s Evidence:

In the Reply filed on behalf of the employer the matters in dispute were confirmed as being in accordance with the dispute notice, namely the letter of 2 January 2009, attached to the Application. However, leave was sought to include the following on the basis that there had been a failure to determine the claim:
“1. The Respondent disputes that the Applicant received a personal injury arising out of or in the course of his employment pursuant to section 4 of the Act.
2. The Respondent disputes pursuant to section 9A of the Act that employment was a substantial contributing factor to the injury suffered by the Applicant, or any aggravation, acceleration, exacerbation or deterioration of an underlying condition as alleged or at all.
3. The Respondent submits that the Applicant has misperceived events which has led to him developing or activating his non-work-related condition.”
Additionally, in relation to what was claimed under sections 66 and 67 of the 1998 Act, the following was sought to be relied on:
“4. The Respondent disputes that any Whole Person Impairment suffered by the Applicant results from his employment with the Respondent.
5. The Respondent disputes the entitlement to Section 67 compensation or in the alternative disputes that the Applicant reaches the threshold pursuant to section 67 of the Act.
6. The Respondent submits that there should be a total deduction pursuant to Section 323 of the WIM Act, for his pre-existing condition or other non-work related conditions.”
A number of reports from Dr Smith were relied on by the employer. He reported on 16 July 2007 following his examination of the worker three days earlier. An interpreter was present, although he noted the worker’s command of English was quite good. The worker told Dr Smith that in the course of his work in the warehouse at Alexandria he discovered criminal activity involving staff stealing pallets containing drugs. He was concerned about these activities and reported them to his supervisors and managers. He stated then that the persons involved learned of his disclosures and threatened him. A threat was made by one of them to “take his eyes out”. He then became concerned and reported the matter to the police. He ceased work on 1 February 2007 and told Dr Smith he continued to work for approximately a month from 23 January 2007 when he first became aware of what he viewed as a threat against him. (The period of a month is incorrect.) The worker was unsupported, he said, by his superior who gave him “a hard time”. He was concerned that people were watching him and was concerned for his safety. He had returned to Indonesia for approximately seven weeks and had been hospitalised there. At the time Dr Smith saw the worker he was taking as medication Zyprexa and Valium.
The worker told Dr Smith that prior to his current psychological symptomatologies he had been in good psychological health. He had not previously consulted a psychiatrist or a psychologist. The worker showed Dr Smith a leaf which he said had a relaxing effect. Dr Smith noted that the leaf appeared to be cannabis. The worker told Dr Smith that since he was a child he had had a sixth sense and was able to read people’s minds.
Dr Smith’s opinion was that it was difficult to be categorical concerning a psychiatric diagnosis in the absence of a clear indication as to whether criminal activity had occurred or not. If there had been no criminal activity then Dr Smith considered that it was probable that the worker was demonstrating a psychotic disorder which was in all probability a delusional or schizophrenic disorder. He went on to say: “In the event that his claim of criminal activity is not true it is more likely than not he is experiencing non bizarre delusions of criminal activity in the work setting. He does not appear to display other criteria for Schizophrenia such as hallucinations nor thought disorder”. Dr Smith did not then consider that the use of cannabis was likely to be contributing to the worker’s psychological state. After noting that the worker firmly believed that criminal activity was occurring, the doctor said that the diagnosis that he had come to was guarded and subject to the criminal activity referred to, being excluded.

After reciting the difficulty in coming to a diagnosis, Dr Smith then expressed the opinion that the worker probably demonstrated diagnostic criteria for a “formal psychiatric disorder, namely paranoid delusional disorder”. The doctor did not, however, consider that the workplace injury had aggravated an underlying condition. Dr Smith did not think that the delusional disorder was related to the worker’s employment and stated that a delusional disorder or psychiatric disorder was essentially caused by an underlying biochemical diathesis or constitutional predisposition. It was not usually caused by stress in the work setting. He thought that on some occasions severe stress could induce a brief reactive psychosis but that did not appear to be the case here.
Dr Smith then went on to consider what would be the case if the worker’s statements were true, namely that criminal activity had been shown to occur and his statements of being threatened were also established. He thought in such a situation the worker’s reactions to the work setting would be understandable and would be acceptable fear for his safety not equating to the development of a delusional disorder. He thought this issue was the key to determining whether the worker’s psychological condition was related to his employment. He suggested that further investigation take place.
Dr Smith provided a supplementary report on 15 November 2007, after having been sent a report of Dr Younan of 12 September 2007. Dr Smith commented that Dr Younan’s report confirmed that the worker suffered from a psychotic disorder, namely paranoid schizophrenic disorder, and he thought that Dr Younan’s opinion was that that disorder was not as a result of his work-related adverse experiences. Dr Smith agreed that abuse and victimisations did occur and may have resulted in an exacerbation of anxiety but it was highly unlikely that it would have activated a pre-existing psychotic disorder. Dr Younan’s opinion he thought confirmed his opinion that the psychotic disorder was not related to his working conditions.
Dr Smith in a further report of 10 March 2008, after reviewing earlier documentation which is not identified, expressed the opinion that the worker had not developed a separate psychiatric disorder in particular a generalised anxiety disorder, and he pointed out that he had previously highlighted the worker’s use of cannabis, which he thought may have contributed to anxiety related symptoms. Dr Smith’s opinion was that, in the main, the worker’s symptoms related to paranoid schizophrenia which may also be associated with anxiety. It was more likely than not he thought that the anxiety symptoms related to the paranoid schizophrenia disorder and not any other psychiatric condition.
Following the claim for lump sum compensation Dr Smith again saw the worker on 17 December 2008. The worker was at that time depressed and at times despairing and had thought disturbances and paranoid delusions. Once again Dr Smith considered that the worker demonstrated evidence of a chronic paranoid schizophrenia disorder.
Dr Smith answered a number of specific questions directed in part to the matters referred to in section 9A(2) of the 1987 Act, and I summarise his answers:
·the worker’s work had not substantially contributed to the development of his psychiatric disorder;
·his psychiatric condition would have occurred at about the same stage of his life even if he had not worked in that employment;
·the worker had been in good physical and psychiatric health previously and there was no family history of psychiatric disorder;
·the worker reported no aberrant lifestyle outside the workplace;
·the permanent loss claimed had not resulted from any work-related injury;
·the worker had a predisposition towards the emergence of a paranoid schizophrenia disorder;
·the worker’s schizophrenia was linked in all probability to underlying biochemical causes;
·there was no evidence of impairment prior to 1 January 2002;
·the worker attributed his difficulties as dating from 23 January 2007.
Dr Younan reported to the insurer on 12 September 2007. He obtained a history from the worker that within three weeks of working at the warehouse, specifically on 23 January 2007, he began to observe certain activities which were said to be “stealing goods, money laundering and an insurance scam”. A week later he reported those activities to the warehouse manager and sought a transfer elsewhere. He considered that when the people knew about his actions they did not like him, abused him calling him a “Bali Bomber” and threatening to “take his eyes out”. This latter event occurred on 31 January 2007. He then went to the police and stayed home being afraid to go out. A week later he saw Dr Lui. He had returned to Indonesia on 27 April 2007 and there saw a psychiatrist who had made a diagnosis of “schizophrenia paranoid”. The worker complained that he did not like going out – he felt people were watching him and he was able to read other people’s minds.
On examination Dr Younan thought that the worker’s thought content revealed paranoid delusions, including delusions of grandeur. He had been to a gym eight times in two weeks and stopped because he said he could read peoples’ minds and because he felt that the Mafia were there. In relation to his previous security work in a hotel, he said he had noticed that people were stealing but he did not report those activities. Asked about his sleep he told Dr Younan that “somebody talks to me in my ear” and says “Oh, you have the power, you can heal global warming”. Dr Younan’s opinion on this occasion was that the worker was suffering from paranoid schizophrenia that most likely has developed prior to working at the warehouse. If the incidents of abuse and victimisation described were true and not based on disorders of perception one could say that as a result of these he has suffered from anxiety and possibly activation of his psychotic disorder.
On 24 April 2008 Dr Younan again reported to the insurer. He had been seeing the worker regularly. On 12 September 2007 the worker said two officers from ASIO questioned him at home and asked him to be silent because at work they thought he was a terrorist. He also said he had been visited by investigators who had kept questioning him for six hours. (This clearly refers to the worker being interviewed by the insurer’s investigators on 16 March 2007). The worker’s wife confirmed that he was “a bit psychic” and that they had been visited by agents from ASIO.
The worker gave examples of his special powers when he had been aware of intruders before an alarm had sounded. He complained that someone had come to his residence while he was out because he had found yabbies outside a fish tank and one of his slippers had been stolen from his front door.
Dr Younan noted that the certificate of the psychiatrist in Indonesia to which he had referred in his earlier report was dated 21 May 2007, that is, after the incidents of abuse complained of and not before as he had previously thought.
Dr Younan expressed his opinion as to the causation of the worker’s schizophrenia as follows:
“Despite the absence of strong evidence of a pre-existing schizophrenia, I feel that it would be extremely unlikely that paranoid schizophrenia would develop as a result of a few incidents of abuse. Most likely Mr Marzuki was extremely vulnerable to develop this schizophrenia. It is possible that his feelings that he had psychic powers, and these predated his incidents of abuse, were indicative of his vulnerability to develop a full blown picture of psychosis. I previously thought that his belief of the existing corruption or drug trafficking at the warehouse was part of his delusions. After reading the investigator’s report however, I found that Mr Marzuki’s allegations were substantiated.
Finally, during my forty-one years of practicing only in the psychiatric field, I have never seen a case of schizophrenia developing as a result of incidents of abuse. Furthermore it is very unlikely that a full blown psychotic picture of not only paranoid persecutory delusions but also of delusions of grandeur would be formed that quickly after incidents of abuse. Having said all that, and to be fair to every party, I repeat that I have no strong evidence that this schizophrenia pre-existed the incidence of abuse.
In summary I favour the opinion that the incidents of abuse had activated a previously existing dormant vulnerability to schizophrenia. While on the one hand it seems unfair to blame what happened to Mr Marzuki at work for the development of schizophrenia it could also be postulated that had he not been exposed to incidents he claimed he might not have been now in this psychotic state. His successful and prolonged work record, prior to the incidents indicates that he has been functioning reasonably well prior to the incidents of abuse.
In conclusion, after reading the investigation report that contained fourteen attachments, I could not find evidence to prove or disprove the allegations of Mr Marzuki. Understandably the definite proof would be an admission from Louie and Elvis that the allegations made by Mr Marzuki against them were true. This however could not be obtained by the investigators. From talking to Mr Marzuki, feeling him out and testing his credibility in the testimony he gave, I feel it more likely than not that his allegations were true.”
I turn now to the late report of Dr Younan dated 27 May 2009. ‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
·the evidence is credible;
·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
·it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Practice Direction No.6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
·a schedule of the fresh or additional evidence;
·a copy of the fresh or additional evidence;
·a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.
The report of Dr Younan dated 27 May 2009 and attached to the Application to Appeal sought to explain what he said in his report of 12 September 2007 and how he was under the wrong impression that the worker had been diagnosed with paranoid schizophrenia prior to the incidents at the warehouse in January 2007. He also sought to explain what he had said in his report of 24 April 2008 in relation to the substantiation or not of the allegations made by the worker. He explained this by saying that corruption in the workplace had been substantiated by the investigation report while the allegation of being abused and threatened by Louie and Elvis were not. The worker also sought to rely on a letter from his solicitors dated 22 May 2009 which was handed up at the directions hearing. The letter is in the following terms:
“In your first report dated 12 September 2007 you provided a diagnosis of Paranoid Schizophrenia which you concluded probably developed before January 2007 when the incidents of abuse occurred. In this report you say he was diagnosed with Schizophrenia in 27 April 2007.
In your report dated 24 April 2008 you indicated that after seeing the investigator’s report, that he was vulnerable to incidents at work which could cause psychotic symptoms. This represents change of view. Can you explain?
Also, it would appear that your report dated 12 September 2007 contains an error as he was diagnosed in 27 April 2007 in Indonesia with Schizophrenia after the work incident in January 2007.
Therefore, your conclusion in the report dated 12 September 2007 could need amendment. Do you agree?”
The report of Dr Younan on 27 May 2009 is in the following terms:
“1.     In my report dated 12^th September 2007, I provided a diagnosis of ‘paranoid schizophrenia that most likely has developed prior to working at the warehouse’.
I based that initial opinion on the following:
·My understanding of the course of schizophrenia is that it takes time to develop. I thought that it was unlikely for it to develop that soon after the incident of abuse.
·I also thought that it was unlikely for an incident of abuse to cause schizophrenia (unless the affected person had a dormant vulnerability).
·With that initial impression in mind, I thought that Mr Marzuki’s accusations about incidents of abuse were possibly delusional. (Understandably what exactly happened in the warehouse was not known to me and hence the significance of the investigator’s report.)
·I also assumed from the history given by Mr Marzuki about seeing people stealing at his previous place of employment and that he had not reported them that it was probable that he was then suffering from paranoid delusions.
·That opinion was further enhanced by the wrong impression that the Medical Certificate issued by the psychiatrist in Indonesia predated the incident of abuse. This does indeed sound strange and embarrassing because in my report I clearly stated that Mr Marzuki visited Indonesia on 27^th April 2007 (i.e. after the incident of abuse). I kept searching into myself to establish how I had made this error and I came to the explanation that I was so influenced by my initial impression – that the schizophrenia predated the incident of abuse – to the extent that I overlooked the date of the Medical Certificate. Later on when I realised my error I referred to it and corrected it in my report of 24^th April 2008 (bottom paragraph of Page 3).
2.     As I continued to see Mr Marzuki I did not changed my opinion about the diagnosis of schizophrenia but have reviewed my opinion about its existence before the incidents of abuse and my reasons for that are:
·Mr Marzuki kept confirming to me that prior to the incidents of abuse he had been perfectly normal and had functioned well.
·The history given by his wife validated the history he gave that men from ASIO had visited him at home and she also confirmed that he had been normal before the incidents.
·More significantly, I realised the error I made considering Mr Marzuki’s trip to Indonesia had taken place before the incidents of abuse.
·After reading the investigator’s report I did not find evidence of Mr Marzuki’s accusation had been possibly delusional. I therefore stated in my report of 24^th April 2008 – ‘I could not find strong evidence of this condition was existing prior to the incidents of abuse and victimisation’.
I would like to comment about the statement you made in your letter – ‘You indicated that after seeing the investigator’s report, that he was vulnerable to the incidents at work which could cause psychotic symptoms.’ I have never stated or indicated that nor is that my opinion.
Finally, on re-reading my report of 24^th April 2008, I found it somewhat confusing. The first paragraph of page 4, I said ‘After reading the investigator’s report however, I found that Mr Marzuki’s allegations were substantiated.’ while in the   4^th paragraph I said, ‘In conclusion, after reading the investigator’s report that contained fourteen attachments I could not find evidence to prove or disprove the allegations of Mr Marzuki.’
Obviously I never meant to contradict myself. The explanation lies in the understanding of Mr Marzuki’s allegations. These were essentially two. The first was what he saw and found as an evidence of corruption in the workplace and these were substantiated in the report and the second was the allegations of being abused and threatened by Louie and Elvis which was not proven in the report.”
In support of the application to admit this report the only submission made is that the report clarifies his earlier reports and will have a material outcome on the effect of the Commission’s decision. In response the employer submitted that Dr Younan had already corrected any misunderstanding on his part and that the admission of the new report would not materially affect the outcome of the case.
At the directions hearing I sought oral submissions from the worker’s solicitor concerning the failure to comply with the provisions of Practice Note 6. In response I was told that the new report did not change the evidence contained in the doctor’s earlier reports. I raised with the worker’s solicitor three matters appearing from the report of 12 September 2007 which indicated to me that the doctor was not under any misapprehension that the diagnosis of schizophrenia had been made prior to the alleged incidents of abuse. In that report he dealt with events in chronological order. He took a history of the alleged events at the warehouse and said “Then on 27^th April 07 he went to Indonesia”. Additionally the doctor has recorded that the worker had denied receiving psychiatric treatment in the past. Finally I pointed out the comment of Dr Younan on page 4 of his report under the heading “Opinion” which is as follows:
“Mr Marzuki is suffering from paranoid schizophrenia that most likely has developed prior to working at the warehouse mentioned above.”
If the doctor had been under the misapprehension that the worker’s schizophrenia had been diagnosed in Indonesia prior to the events alleged at the warehouse, then the doctor would not have said “most likely…developed” because it would have been quite clear to him that schizophrenia had developed and been diagnosed prior to working at the warehouse. I invited further submissions on these matters. None has been received.
It appears to me that none of the matters referred to in Practice Note 6. has been properly addressed. I am not persuaded that the additional report of Dr Younan is in any way persuasive or would have led to a different result at the arbitration had it been obtained at an earlier time. It has not been demonstrated that this report could not have been obtained with reasonable diligence prior to the determination of the Arbitrator, nor am I satisfied that the interests of justice require that this report should be admitted into evidence.

There may be cases where the obtaining of a further medical report after the arbitration and seeking to rely on it in an appeal in order to clarify matters raised by an arbitrator may be permissible. The occasions on which such reports should be received would be rare. It is not, in my view, a practice which ought be permitted except in the most exceptional circumstances where the interests of justice clearly require it. This is not such a case. Accordingly leave to rely on the additional report of Dr Younan is refused.
The insurer sought the opinion of a psychiatrist from Perth, Western Australia, Dr Terace, in June 2008 based only on documentary material, namely: a summary prepared by Goldbergs Lawyers dated 27 March 2008 which is not in evidence, the report of Dr Younan of 24 April 2008 and the reports of Dr Smith dated 20 July 2007 and 10 March 2008. Dr Terace’s opinion was that if the diagnosis was paranoid schizophrenia then that was a neurological brain condition for which there was no substantial evidence to conclude that it was caused by the workplace. He thought it was a constitutionally-caused disorder rather than an occupationally-caused one and he cited Dr Younan’s reference to his 41 years of practice and never seeing a case of schizophrenia developing as a result of incidents of abuse. Dr Terace did disagree, however, with Dr Younan’s conclusion that incidents of abuse had activated a previously existing dormant vulnerability to schizophrenia. He thought there was insufficient evidence from the psychiatric or scientific literature to support such contention. Sometimes an association occurred simply as a response to chance or coincidence. Dr Terace thought there was good evidence to show that cannabis on its own may precipitate a first episode of schizophrenia and/or relapse in a psychologically vulnerable person with a genetic and environmental pre-disposition to schizophrenia. His view was that the psychiatric condition from which the worker suffered was unlikely to have been caused by the workplace but was rather a product of constitutional factors with or without cannabis use. Even if the relevant incidents had occurred, Dr Terace thought that the diagnosis of paranoid schizophrenia was constitutional and it was unlikely that employment was a substantial contributing factor because there was insufficient evidence to show that such incidents can or do activate an underlying psychiatric condition.
Relevantly, Dr Terace summarised his position on the evidence before him as follows:
“That any diagnosis of schizophrenia, paranoid schizophrenia and/or delusional disorder, or of any psychosis, is on the balance of probabilities not worked [sic] caused regardless of whether there was any instance of abuse and/or victimisation, real or imagined. Thus, I do not have sufficient evidence to find that employment substantially contributed to the applicant’s paranoid schizophrenia.
I thus disagree with the opinion of Dr Younan, Mr Marzuki’s treating Psychiatrist. This effectively means that my provisional opinion is that the insurer is not liable for Mr Marzuki’s condition or its treatment.”
A workers compensation claim form was completed by the worker and I have described this at [4]. That form is date stamped as having been received by the insurer on 2 April 2007 although it states that it was given to the employer on 4 January 2007 and received by Mr Farrar on 5 January 2007. (As I have earlier noted the dates are clearly incorrect.)
There are two medical certificates from Dr Lui, both dated 6 February 2007. One is headed “Initial” and the other “Progress”. In the first the diagnosis was given as “stress” while in the second was “anxiety”. Both diagnoses were followed by the words “was insulted at work by other people at work”. The worker was certified unfit initially from 5 to 20 February 2007 and later from 20 February to 20 March 2007.
An investigator, Mr George Zafiropoulos of Verifact Risk & Investigation, conducted a factual investigation and a report was sent to the insurer dated 26 March 2007. It was however not signed by him but by Ms Nield who was described as “Factual Investigation Manager”. On 16 March 2007 a statement was obtained from the worker with an interpreter present. It is not clear that the interpreter was used to translate and accordingly some of what the worker said lacks clarity. In addition to giving this statement the worker supplied a copy of an unsigned statement prepared by his then solicitors, dated 15 March 2007. It extends over 13 pages and the relevant parts of it may I think be conveniently set out in the form of a chronology:

Date Event
Tues 09/01/2007 Commenced training at Nuance Downtown Duty Free Warehouse under another security guard.

Thur 11/01/2007     Began working on his own.
Mon 15/01/2007      Noticed another security guard, Louie, watching him and thought that that guard had changed his attitude to him and did not look happy.
Tues 16/01/2007     Approached Louie to ask him how an X-ray machine operated. The other guard said to him “Why are you coming here, do you want to send a message to the world?” The worker said he thought that it had something to do with the fact that he was Indonesian and the remark was to the effect that he might be a terrorist.
Later that guard came to the worker’s desk and began talking to him asking him personal questions.

Wed 17/01/2007 Louie began to gossip about the worker to other staff and approached the worker suggesting that that warehouse was not a good place for him to work. The worker became concerned.
Louie made a joke about Indonesian people which the worker ignored.

Mon 22/01/2007 Louie approached the worker’s desk to collect equipment for the X-ray machine and said to the worker “You are a special security guard” in a sarcastic tone.
Louie asked him if they could have a cigarette break together. While he was smoking he began to talk to the worker about drug smuggling and told him “You can still smuggle drugs to Australia”. The worker considered that the other guard thought that because he was an Indonesian he must have been a terrorist or drug smuggler. The other guard said that drugs could still be sent by cargo up to about 300 kilograms. The worker was asked whether he used drugs to which he said “Yes” in order to gain Louie’s trust. He then formed the view that Louie could be involved in illegal activity at the warehouse. The worker kept thinking about what had been said and became tense and anxious and said he could feel his heart beat.

Tues 23/01/2007     Went to work and stayed at his desk trying to mind his business and it was his general feeling that he would prefer not to be working there.
Wed 24/01/2007      While the worker was having a conversation with a fellow worker, Evelyn, Louie appeared and said in relation to the worker “Don’t believe him, he is the Bali Bomber”. The worker said he went cold and became very nervous. He took deep breaths, drank a glass of water and had a cigarette to settle himself down. He said he was offended and upset by what had been said.
Mon 29/01/2007      The worker and Louie had a cigarette break during which the warehouse manager, Mr Solomon, was discussed.
The worker heard that Louie had been spreading gossip about him and had called him an offensive name.
The worker rang his supervisor, Mr Todd Farrar, and asked him to send someone else to replace him at that site. He told Mr Farrar he felt really stressed and couldn’t work there any more. Mr Farrar said “See how you go and don’t worry too much”. The worker indicated he wanted to take off the following week.

Tues 30/01/2007 He was told by another worker, Tony, that he hated everyone at work except him, which worried him. He then formed the view that perhaps Louie and Tony did not like him because they were both involved in criminal activity at the warehouse. Tony asked the worker to leave the job and suggested that that job was no good for him.
The worker had only two hours sleep that night and could not stop thinking about work.

Wed 31/01/2007 Telephoned his supervisor, Mr Farrar, and told him that he thought there may be some criminal activity at the warehouse. He said he was worried and scared and requested that he send someone else for training and move him to another site. To this Mr Farrar agreed. Mr Farrar rang him back after half an hour and told the worker he would send someone to work the following day and that he could not have Friday off.
Telephoned Mr Farrar again telling him he needed to be transferred as soon as possible. Discussed with another worker, Nevil, what was going on at the warehouse. The worker asked to see the warehouse manager, John Solomon, and that was arranged for 3 p.m. that day. However, Louie was still there at that time so the worker asked his wife to send the warehouse manager a text message asking him not to meet him at the arranged time because “Louie and the gang were still there watching him”. However, the meeting did take place at the appointed time and the worker said he pretended not to talk to him because Louie was around. He then formed the view that perhaps the warehouse manager was involved in criminal activity as he ignored the request not to see him at that time. He then rang Richard Airth, Nuance’s operations manager, telling him that he thought there was criminal activity at the warehouse in which the manager was involved and asked him to meet him at 5 p.m. at the carwash on the premises. This meeting did take place as arranged and the worker asked Mr Airth if he wanted him to become involved with the gang with a view to finding out further information. Mr Airth said that he thought that would be good. Drugs were discussed, however Mr Airth indicated that he did not want drugs involved. That evening the worker could not eat dinner and was very sick and stressed and anxious and could not sleep.

Thu01/02/2007 He rang Mr Airth about 3 a.m. He thought there were people outside trying to kill him. He asked for help and was told to ring the police. He also sent Mr Airth a text message asking him to let him have a gun. He said he felt he was going crazy and kept trying to ring Mr Airth on his mobile to ask for a gun and some help because he was worried that the gang at work knew where he lived.
The worker came to work half an hour late and said he had not slept for two days and felt like a “zombie” and thought he must be going mad. That morning he rang Mr Farrar and told him he desperately wanted to go home because he was very sick. The worker said his head was spinning and he felt like collapsing and no one seemed to care. Mr Farrar said he would send someone to replace him. The warehouse manager then came to him and asked him to go up the stairs to see one of the ladies from Nuance. He said he didn’t say much during that conversation because he was worried and upset and did not trust her. Also on that day a truck driver, Elvis, said to him “You know too much, I’m going to take your eyes out”. The worker’s replacement, a female security guard, appeared at 4 p.m. The worker said that the procedure was to close the warehouse at 4 p.m. and monitor the car park until the next shift started at 6 p.m. The warehouse was closed when the other guard arrived and both of them sat in the worker’s car. At 6 p.m. the worker started to drive the other security guard home but was asked by her to take her back to work. That evening he went to Hurstville Police Station and made a report about what he said was the “situation at the warehouse”.

Fri02/02/2007 The worker stayed home and slept with a knife and baton beside his bed. He was afraid of people from work coming to kill him.

Sat 03/02/2007 Told his wife that people were coming to kill them.
Mon 05/02/2007 The worker rang Mr Farrar declining to his invitation to attend the Divisional Security office. He had been asked by Mr Farrar if he could go back to work and there was some discussion about his kidnapping one of the other employees of Divisional, being the female security guard. He became extremely stressed and anxious and could not remember how that conversation ended. He remained off work and sought treatment from his general practitioner, Dr Lui.

In the further statement taken by the investigator on 16 March 2007 additional material which is not in the earlier statement appears to be as follows: he heard Louie say to other people about the worker “Maybe he is a cop under cover” because the worker had a police scanner on his waist belt and Louie thought that the worker was close to the security manager at the warehouse. On the day that he had arranged to see the warehouse manager, 31 January 2007, he overheard him on the phone saying “97C” and the worker thought that 97% about his feeling was true. He said he did not know what the manager meant by saying 97C. He was told by persons that he preferred not to name that 250,000 items had been missing from the warehouse since that warehouse manager, Mr Solomon, had commenced.
In relation to his conversation with Mr Airth on 31 January 2007, that is related in greater detail as follows:
“I said, ‘Richard, look a few people here are doing criminal activity’. He said, ‘How do you know Teuku’ and I replied ‘You know too what is happening here, you want me to join in the gang?’ He said, ‘yeah, if you want’. I said to him, ‘How are you going to look after me?’ and he said, ‘Yeah, I give you some rewards’. I said, ‘okay, but the gang want me to produce the drug so they can trust me’. He said, ‘Don’t involve the drug, oh no better’. They don’t want me to join the gang. Richard asked me some questions if Divisional security company is involved. I replied, ‘Of course, anything to do with the money, people do it’. Then he gave me his business card. After that I told Richard, ‘My father is top cop back in Indonesia and I am more or less follow him to raid the people and I stay in the car’ and he said, ‘Oh, okay, we keep kin [sic] touch’ and then him go.
I did not have evidence of drugs other than what I had told you about other people talking to me about drugs. People who work in the warehouse ask me about the price of drugs but I don’t want to give their names because I am scared they may kill me. I had no evidence that Divisional Security was involved in criminal activity other than people at the warehouse talking about Divisional Security guard before me being involved.”
After that meeting he asked his wife to send a text message to Mr Airth which was said to be “Don’t talk to anybody what I discussed with you because big people here are involved. I tell him I am an ex-under copper and be careful because so many under copper being betrayed by their friends. I tell him bullshit because I am thinking that I am a cop and that is what I am feeling is true.” The worker said he had never been an undercover cop. He telephoned Mr Airth three times in the early hours of 1 February 2007 saying “Richard, tapping their mobile phone”. He was told to go to the police and stop disturbing him. He told his wife that Federal Police undercover were inside the warehouse. The next day he said he was walking around the warehouse yelling “Oh, this warehouse is drug smuggling place”. He said people then looked at him differently. Some remarks, the sense of which is not clear, were made by other workers about five kilos and a box. The worker heard some of them say “This guy knows too much, put him in the truck”. That day he said the warehouse manager was not very nice to him. After finishing work he telephoned 000 twice without apparently speaking because he was worried that it might be the Mafia. On the third attempt he spoke to someone at Redfern Police and told them about drug dealing at the warehouse. He then went to Hurstville Police Station because he said he thought he needed protection and spoke to a Constable Brett Davis. The worker said it was confirmed that there was another person reporting drug dealing at the warehouse. He stayed at the police station for about 3½ hours. A senior police officer came and asked him questions and there was a meeting. The worker told the officer to report the happenings to the Federal Police. He came home from the police station and felt very bad and had not been to work since that date. He rang Mr Farrar on Monday 5 February and asked if he still had a job and was told “No, you have to come to the office first, the management want to see you. Teuku why are you trying to kidnap the security guard and why you disturb Richard at 3 o’clock?” He did not go to the meeting but on Tuesday 6 February gave consideration as to who was going to help him and it was suggested that he see a solicitor. He went to see Dr Lui who gave him medication and told him he suffered from anxiety. He said he spent a lot of time wondering why people were nasty to him and whether it was true that there were drugs on the site. He was scared to go out and had taken a number from his door so that people could not find him.
A statement was obtained from Ms Wilma Rutter who was the financial and administration controller for the employer. She said she had gone to the worker’s home with Mr Craig Pike on 13 March 2007 to ask him whether he could resume work. She said that the worker’s contact with Mr Airth the operations manager of Nuance in the early hours of the morning of 1 February 2007 had caused the employer to lose the contract with Nuance on 8 February 2007. Signed statements by Ms Rutter and Mr Pike following the meeting with the worker on 13 March 2007 were attached which were identical. They essentially contain the same information as in the worker’s statements. The differences are that the warehouse manager is referred to as John Sullivan rather than Solomon and there is the additional information that Mr Farrar told Craig Pike that “we had lost the site due to ongoing theft of make-up” and Mr Airth said that they had lost the site because of ongoing thefts and continual harassment from the worker.
Mr Farrar made a statement to the investigator on 19 March 2007. His position was as the Operations Coordinator with Site Workforce Pty Ltd. He said around 25 January 2007 the worker had telephoned him and said words to the effect: “I believe that the workers in a racket of colluding to knock stuff off, property”. He was told by Mr Farrar to speak to management at Nuance. Mr Farrar told the worker that he would replace him as soon as possible. The next day the worker asked for a transfer as he was getting upset with the way other workers were looking at him and he was being intimidated. Mr Farrar told him not to worry about it and it would take a couple of days to find someone to replace him. Within three or four days Mr Airth told him that he was terminating the contract without giving a reason. Mr Airth had allegedly told Mr Pike that he was unhappy with the worker.
Mr Farrar had been told by another guard that a female guard was screaming when the worker took her to his car on 1 February 2007. Later the worker telephoned Mr Farrar to ask whether he still had a job. He was told to come to the office and he was asked why he tried to kidnap a female security guard and why did he telephone. Mr Airth at 3 am. The worker did not attend the meeting arranged and the employer received a letter from the worker’s solicitors and a WorkCover medical certificate.
A statement was obtained from Ms Safia Bolad who was the security guard sent to relieve the worker on 1 February 2007. She had a discussion with the worker concerning the time at which she was entitled to finish work and the worker offered to take her in his car to a train station. She noticed however that he was driving in a different direction and he told her that he was going to his house and said “Don’t worry I have two bedrooms, if you go with me you have relax and fun night”. She then shouted at him to stop and threatened to throw herself out if he did not. She then asked to be driven back to the warehouse. When the worker did so she got out of the car and screamed at the worker, “You are not a security guard, you are a bad man”. He did not, she said, mention any problems at work to her.

The investigator attempted to speak to Mr Airth and, when asked to put allegations in writing prior to his considering a request for interview, was instructed by the insurer not to proceed. The investigator expressed the view that the Nuance group was aware of drug and theft activity at their warehouse and failed to make the worker aware of those activities prior to accepting or rejecting his placement there. Nuance was said not to have taken seriously the first alleged reported insult regarding the worker being a Bali Bomber.
Constable Brett Davis of Hurstville Police was interviewed and confidentially informed the investigator that the Federal Police were mounting a drug-related operation at the subject warehouse. There was no police action taken by Constable Davis as it was out of his local area command.

SUBMISSIONS BEFORE THE ARBITRATOR

Worker’s submissions:

The worker’s good work record prior to January 2007 was relied on. The investigator’s report was said to establish a factual basis for the events which the worker said had occurred. Thus it was said that the employer’s claim that the worker had misperceived events was erroneous. An onus was said to rest on the employer to demonstrate that the things alleged did not occur. Reliance was placed on the statement by Ms Rutter on 19 March 2007 at paragraph 31 as follows: “Apparently on 29 January 07 he was called a Bali bomber by Tony the truck driver in front of Evelyn and she is one of the office staff members I believe”. So far as cannabis use is concerned, it was submitted that the worker had said that he only used cannabis sparingly for a period of one or two months after the onset of his condition. (I have found no evidence to support this submission). The only medical conclusion open to the Arbitrator was based on evidence of criminal activity causing or aggravating the worker’s underlying condition. Dr Lui’s records showed no prior psychological disorder. (These records were not in evidence before the Arbitrator except for the pathology and radiological reports as I have earlier noted.)
It was submitted that the opinion of Dr Younan should be accepted since he was a treating psychiatrist who had seen the worker on 17 occasions. Certain statements made by Dr Younan in his report of 24 April 2008 were relied on, however, the quotations set out in the transcript were inaccurate.
Reliance was also placed on the answer to a question posed by a letter of 16 October 2008 which is not in evidence. The report in response from Dr Younan is dated 3 November 2008. He concluded:
“According to available information, Mr Marzuki’s disability is caused by the accident of 23 January 2007.”
It was submitted that Dr Smith’s opinion in his report of 16 July 2007 was that it was necessary to ascertain whether the worker’s complaints of criminal activity were substantiated or not in determining whether his employment was a substantial contributing factor to his current condition.

Employer’s submissions:

It was denied that there was any injury but if there were, the worker’s employment was not a substantial contributing factor to that injury. It was conceded that the worker had a medical condition, namely paranoid delusional disorder which was said to be constitutional. Reliance was placed upon the events related in the worker’s statement as being evidence of a delusional disorder. The conclusions reached by the investigator that Nuance was aware of ongoing reported drug and theft activity within the warehouse was said to have been not based on evidence but on the lack of cooperation from other parties including staff employed by Nuance. The worker’s reporting of these events was more consistent with paranoid delusional thoughts rather than actual life events and particularly in relation to the female security guard who was sent to the site.
Counsel then dealt with the medical evidence. In relation to Dr Younan’s report of 24 April 2008 it was said he was making certain assumptions which he was not entitled to make. This appears to be that the worker was “probably vulnerable” to develop schizophrenia. Despite noting that there was no evidence to prove or disprove the allegations of Mr Marzuki in the investigation report, the doctor still felt that it was more likely than not that the allegations made by the worker were true.
Reliance was also placed on the provisions of section 9A of the 1987 Act with particular reference to section 9A(2) and whether the injury would have happened at any stage. The Arbitrator was referred to the decision of Nexon Asia Pacific Pty Limited t/as Commander Australia v Badawi [2008] NSWWCCPD 72 (‘Badawi’). Counsel also referred to Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; (2001) 22 NSWCCR 46 (‘Dayton’).
In response it was submitted on behalf of the worker that his injury was aggravated by his not being transferred after he complained to his supervisor. His allegations were not investigated by the management of the company itself and this aggravated his injury. A passing reference was made by the employer to section 11A of the 1987 Act, which relieves an employer of liability to make payments of compensation where a psychological injury was wholly or predominantly caused by certain specified actions or proposed actions of the employer including, which would appear relevant in this case, actions with respect to transfer and discipline. Although reference was made to the alleged kidnapping of the female security guard, I do not think it could be said that the section 11A issue was seriously pressed. It was conceded by counsel that the doctors had not turned their minds to this issue.

ARBITRATOR’S REASONS

The Arbitrator summarised the issues to be determined in relation to the claim as:
“(a) Whether the injury arose out of or in the course of employment.
(b)Was the work a substantial contributing factor to the injury?
(c)Was the injury predominantly caused by reasonable disciplinary action of the Respondent such that a defence pursuant to s11A of the Act is available?”
The Arbitrator summarised the lay evidence. She then noted the agreement in the medical evidence that the worker suffered from chronic paranoid schizophrenia and was unfit to perform his pre-injury duties for this reason. She noted Dr Younan’s view that if the worker had not been exposed to the incidents he claimed, he may not have developed a psychotic state. Dr Younan was influenced in that view by the worker’s work record prior to the alleged incidents of abuse and by reading the investigation report which the doctor thought substantiated his allegations of criminal activity. Dr Younan, the Arbitrator noted, had changed his view after clarification that the diagnosis of paranoid schizophrenia in Indonesia was made after the events at work and not before.
The Arbitrator then considered the opinion of Dr Smith and Dr Terace and referred to Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 (‘Mercer’) and Dayton. She also considered the decision of his Honour Judge Keating in Badawi. All of these cases were concerned with the application of section 9A of the 1987 Act.
In relation to medical causation, the Arbitrator considered that there was evidence of two types of factors, namely predisposing and precipitating. The predisposing factors included genetic factors and probably cannabis use, neither of which was work related. She noted Dr Younan’s view that the incidents described by the worker could have been a precipitating factor and that Dr Younan has talked in terms of “abuse” rather than the stress which abuse had caused the worker. She noted that when the worker first consulted Dr Lui, he was diagnosed with anxiety and depression and treated for that, although the Arbitrator thought that it appeared from the evidence of the worker and others that he was already exhibiting delusional and paranoid symptoms at that time. She noted Dr Smith’s view that stress could give rise to a short-term psychotic reaction.
The Arbitrator concluded that the events at work caused the worker some emotional reaction and distress. The injury therefore arose in the course of his employment and she accepted Dr Younan’s views that the work events could have made some contribution to the symptoms becoming apparent in the first instance. Work factors could not be entirely excluded as a precipitating factor. The injuries she thought satisfied the definition of disease where the aggravation or, she thought more likely, the acceleration of a disease, has employment as a contributing factor falling within section 4(b)(ii) of the 1987 Act. She noted however that section 9A of the same Act required that employment be a substantial contributing factor to the injury. For a factor to be substantial, the Arbitrator thought it must not be minor on a balancing of all of the factors involved and the question of balance was a matter of impression and degree as referred to by Giles JA in Dayton. She thought the correct approach in balancing all of the relevant factors was illustrated in Badawi. She noted the opinions of Drs Younan and Smith that the symptoms suffered by the worker in late January/early February 2007 represented the onset of mental illness and the view of Dr Terace that his schizophrenia had been activated prior to that time. Dr Smith was the first psychiatrist to see the worker after his symptoms arose. She accepted that it was probable that the symptoms he manifested in January/February 2007 represented the onset of his condition rather than a relapse. She thought however that all doctors agreed that the constitutional factors were the strongest causal factors at work and that the worker’s reported ability to read peoples’ minds from a young age indicated a vulnerability or the existence of delusions indicated he had already developed the illness although unrecognised and untreated. All opinions agreed that the smoking of cannabis can be correlated with the onset of psychotic symptoms, either initially or in a relapse.
Only Dr Younan accepted that the worker may not have been in his current psychotic condition had it not been for work incidents. However, she noted that this was not his view after he first saw the worker and he was influenced to change his mind by the investigation report indicating that the worker’s perception of criminal activity may not have been delusional. The Arbitrator further noted that the worker’s perception of what was happening at the warehouse went beyond a perception of criminal activity to the involvement of management in that activity based on his overhearing one word of a telephone conversation said by Mr Solomon/Sullivan on 31 January 2007. She noted Dr Younan saying that he thought the diagnosis of paranoid schizophrenia had been made prior to work incidents, however, this did not accord with the history given to him and she said she was unable to accept the basis of Dr Younan’s change of opinion in relation to contribution of workplace incidents and thought that his earlier opinion was more likely to be correct.
In relation to the worker’s hearing himself called the Bali Bomber, she thought there was an emotional response to this, namely one of anger. Such emotional reaction was not, she said, a psychological injury. The injury sought to be relied on was psychiatric illness which continued more than two years after the events in question.
The Arbitrator then referred to the certificates of Dr Lui suggesting a diagnosis of stress and later of anxiety, although the correct diagnosis was not made until May when the worker consulted a psychiatrist in Indonesia. Dr Younan, she noted, had concluded that it would be very unusual for psychotic symptoms to be developed so close to incidents causing stress, if that stress was truly causative. However, within a week of the events of 23 January 2007 the worker was exhibiting acute paranoid and delusional symptoms: sleeping with weapons in his bedroom; making early morning phone calls; warning of phone taps; purporting to be working under cover and fearful that his life was in danger. She also noted the incident on 1 February with the female security guard and also his behaviour earlier that day when he was walking around the warehouse loudly making allegations of drug dealing when he agreed that he had no evidence of this. She thought that the evidence was that he was under the delusion that he was working under cover and needed to be supplied with a gun. Although the statement made that the worker knew too much would not have been helpful in the worker’s paranoid state his paranoid delusions had developed before the statement was made.
The Arbitrator then considered the certificate of Dr Salem suggesting a diagnosis of anxiety nervous disorder. She did not accept that as a correct diagnosis of the worker’s current condition, nor did she accept his opinion that “all symptoms relate to the actions at work related harassment”. The Arbitrator finally referred to Dayton, which was also a case of schizophrenia and noted that a fact could be minor and still trigger the onset of disease but if minor among other contributing factors, would not be a substantial factor but may come in the “last straw” category. In summary, the Arbitrator said she was satisfied that this was the case with work events which were alleged to have caused his schizophrenic illness and therefore section 9A was not satisfied.

AMENDMENT

At the directions hearing I drew attention to the fact that the date of injury had been specified as being 23 January 2007 while most events related by the worker occurred after that date. The Arbitrator entered an award for the respondent in relation to “claims arising from the injury alleged to have occurred on 23 January 2007”. I sought some clarification of this and was told that 23 January represented “a major trigger event” or the “commencing point”. I sought further submissions in relation to this and, as a result, the worker by submissions attached to letter of 6 October 2009, now seeks to amend the Application to rely on the following:
“(a). 13.1.07 the applicant claimed that workers were calling him names.
(b). 23.1.07 the applicant had a ‘run-in’ with Loui.
(c).29.1.07 the applicant was called a ‘Bali bomber’ by Tony, the arbitrator relies upon this work incident.
(d).31.1.07 the applicant organised a meeting with John and told him there was allegations of criminal activity.
(e).1.2.09 [sic] the applicant said Elvis had threatened to take ‘his eyes out’ because he ‘knew too much’. They said they were going to throw him in the back of the truck.”
In response the employer relies on section 289A of the 1998 Act and says the worker has only ever alleged an injury of 23 January 2007. It is said that if the worker were allowed to amend at this late stage then the employer would suffer prejudice. The worker should discontinue the proceedings and re-make a claim based on the other dates of injury so that the employer might determine the claims in respect of them. The difficulty with this submission is that the investigation carried out and the medical reports obtained on behalf of the employer relate clearly to all of the events up to 1 February 2007 and even later. I have already commented at [4] on the unsatisfactory nature of the claim for compensation made, however it is clear that the worker was alleging a psychological/psychiatric disorder which is referred to as anxiety and depression by reason of what he termed a “life threatening incident”. The hearing was conducted before the arbitrator on the basis of all of the worker’s incidents of employment being relied on and no specific reference was made to the claim being limited in any way.
Section 289A confines the disputes which can be referred for determination by the Commission to those concerning matters previously notified as disputed. It appears to me that the employer may have been itself in breach of section 289A in that the notice given under section 74 of the 1998 Act by letter of 2 January 2007 did not raise the matters which were subsequently sought to be raised, nor were they raised before the dispute was referred to the Registrar for determination. However, no point has been taken by the worker in relation to this and it is not necessary to deal with it further. Section 289A(4) provides that a previously un-notified matter may be heard or dealt with by the Commission if it is of opinion that it is in the interests of justice to do so. The section appears to be directed to conduct of the employer rather than that of the worker.
So far as the worker’s actions are concerned, section 260 of the 1998 Act makes provision for the manner in which a claim is to be made. However, there is a saving in section 260(5) which is as follows:
“The failure to make a claim is required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in formal style.”
As Basten JA said in Tan v National Australia Bank Ltd [2008] NSWCA 198; (2008) 6 DDCR 363 at [42] in relation to section 260:
“The objectives of the Act, which are directed primarily to ensuring compensation for work-related injury, will not be promoted by a narrow reading of a provision which allows for recovery of compensation in circumstances where procedural requirements have not been followed.”
In my view it would be unjust to require the worker to discontinue these proceedings and commence again after giving notice of further dates of injury. I say this because it is clear the employer has thoroughly investigated all the relevant events both from a factual and medical point of view. I have also had regard to the injunction contained in section 354(3) of the 1998 Act that: “ The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The employer however raises another objection to the worker’s amendment in relation to the provisions of section 11A of the 1987 Act. This section was not, it is said, sought to be relied on at the arbitration because the worker claimed only in respect of events on 23 January 2007. If the amendment were allowed, the employer says that it should be entitled to obtain further evidence from Dr Smith as to the worker’s injury being wholly or predominantly caused by its reasonable actions in relation to matters of discipline and transfer. I am unable to accept this argument since it is clear that, although the employer raised section 11A in its Reply it made no attempt to obtain opinions from doctors in support of those matters which it would need to prove in order to establish such a defence. I fail to see that simply because the worker has, nominally at least, restricted the claimed injury to one day that the employer was precluded from attempting to raise by way of defence that other matters were causative of his injury to the degree required by section 11A. It need scarcely be said that in a case of psychological/psychiatric injury one is seldom able to identify a precise date on which the injury other than the events said to give rise to the injury occurred. The Arbitrator at [2] of her reasons referred to the psychological injury as being “deemed” to have happened on 23 January 2007. It is unclear why she has referred to it in this way however nothing I think turns on this.
I am of opinion that it would be just to allow the amendment sought by the worker and this would not in my opinion create any prejudice to the employer. Accordingly, the Application is amended by adding the words referred to in paragraph [85] from (a) to (e) inclusive.

SUBMISSIONS ON APPEAL

Worker’s submissions:

In the appeal initially lodged the worker relied on nine separate grounds of appeal. At the directions hearing I pointed out certain aspects of these grounds to the worker’s solicitor and, as a result, four of them have now been abandoned. Those which remain are as follows and are renumbered accordingly:
“1. The arbitrator erred in determining that sc.9A was not satisfied.
2.The arbitrator erred in law in stating the appellant did not suffer a work-related injury.
3.The arbitrator erred in finding that the work was not a substantial contributing factor.
4.The arbitrator erred in not preferring the opinion of Dr Younan, as treating psychiatrist.
5.The arbitrator erred in finding that on the basis of all other evidence the psychotic symptoms were present prior to 6 February 2009 [sic].”

The crucial point in these submissions is that the Arbitrator failed to properly apply section 9A and find that the worker’s employment was a substantial contributing factor to his injury. I am afraid that the submissions made in support of these grounds are not entirely clear and themselves raise other grounds of appeal. However, it appears reasonably clear that in a number of submissions the worker is seeking to support the appeal on the basis that his allegations of criminal activity at the workplace were established by his own statement and the investigator’s report. An additional matter raised is that the Arbitrator allegedly erred in determining that the worker’s “reported ability to read minds from a young age indicated a vulnerability or the existence of delusions indicated that he had already developed the illness”.
At the directions hearing I also brought the parties’ attention to a number of authorities dealing with diseases and invited submissions on them. Those cases were: Federal Broom Company Pty Limited v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (‘Semlitch’) ; King v Commissioner for Police [2004] 2 DDCR 416; Harpur v State Rail Authority [2000] NSWCC 3; (2000) 19 NSWCCR 256; Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88 (‘Cant’); Murray v Shillingsworth [2006] NSWCA 367; (2006) 68 NSWLR 451 (‘Murray’); Maher v Brambles Australia Ltd [1998] NSWCC 54; (1998) 17 NSWCCR 334. Relying on certain of those cases the worker submits that his employment was a substantial contributing factor to the aggravation of the disease of paranoid schizophrenia which had probably developed prior to the work incidents relied on.

Employer’s submissions:

The employer relies on the decision of Dayton and what was said by Meagher JA in that case, namely that an employment related contributing factor that is minor in comparison to a non-employment related contributing factor cannot be regarded as substantial. Substantial contributing factor was a question of fact for the judge. The Arbitrator had, it is said, found that the worker’s employment was minor in comparison to the constitutional cause so that work could not be said to have been a substantial contributing factor to the psychological condition.
The finding of the Arbitrator that psychotic symptoms were present prior to 6 February 2007 was correct as the worker had said in his statement, at [39], that by 29 January 2007 his “brain was all over the place”. It was submitted that the worker had become paranoid and delusional before the alleged remarks that the worker “knew too much” and the worker’s evidence was unreliable. It is submitted that there was no probative evidence to support the allegation that criminal activity took place or that any comments, jokes or other statements were made in relation to this.
The opinions of Drs Smith and Terace that delusional or psychiatric disorders are essentially caused by chemical conditions and not by life events such as workplace stress are relied on. Instead it is submitted that paranoid schizophrenia is a condition which will come on at similar time of life regardless of the person’s environment. The predominant cause of the worker’s schizophrenia was the constitutional condition and not the alleged harassment and resulting stress or anxiety.
In the event that it is determined that the worker did suffer a work-related injury, then it is submitted by the employer that the worker’s condition was caused by the reasonable disciplinary action by the employer, including the request that the worker attend a meeting to discuss his late night phone calls to the manager of the worksite and his harassment of a female security guard.
Whereas at the arbitration the employer had relied on the decision of the President, his Honour Judge Keating, in Badawi, in this appeal the employer relies on the decision of the Court of Appeal in the same case ([2009] NSWCA 324) as establishing that the correct test is whether the employment issues were “real and of substance”. The employer also denies that there was any injury at all but simply a constitutional condition to which the employment made no contribution. Finally, the employer points to the unreliability of the worker’s evidence and his misperception of events.

DISCUSSION AND FINDINGS

The Arbitrator determined at [60] and [61] of her reasons that the events at work had caused the worker some emotional reaction and distress which gave rise to his symptoms. She therefore considered that the injury arose in the course of employment and she accepted Dr Younan’s view that the work events could have made some contribution to the manifestation of symptoms in the first instance. Accordingly she said the injury was within section 4(b) (ii) of the 1987 Act, namely the aggravation or acceleration of a disease which had employment as a contributing factor.

Section 4 of the 1987 Act relevantly provides:

“injury –
(a) means personal injury arising out of or in the course of employment;
(b) includes –
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; …”

The forerunner of section 4(b)(ii) was paragraph (b) of the definition of “injury” in section 6 of the Workers’ Compensation Act 1926. This was added in 1960 as a result of the decision of the High Court in Darling Island Stevedoring & Co Ltd v Hussey [1959] HCA 55; (1959) 102 CLR 482 (‘Hussey’). In that case it was held that compensation was not payable in respect of the death of a worker who suffered from progressive heart disease where exertion on a journey was a contributing factor to his death.
After the relevant amendment its effect was considered by the Full Court of the Supreme Court of New South Wales (Federal Broom Co Pty Ltd v Semlitch [1964] NSWR 511) and the High Court in Semlitch. In that case the worker who had previously been treated for schizophrenia had suffered pain in her side while lifting at work and claimed to be incapacitated by severe pains which were delusional in nature as a result of her schizophrenic disease. She was successful in both the Full Court and the High Court. That case may be distinguished from the present in that there was a physical injury unlike the present. However, all members of the High Court considered whether the psychological injury to the worker fell within the extended definition of “injury”, being the aggravation, acceleration etc of a disease. Moffitt J considered the four separate terms used in the definition. At 519 his Honour said:
“Speaking very generally, sub-paragraph (b) to the definition of ‘injury’ is directed to a worsening of the disease, the four descriptions apparently being selected in an endeavour to be comprehensive.”
His Honour held that there was in that case an exacerbation of the disease and probably also an aggravation.
In the High Court the argument that the amendment related only to diseases which were progressive, as was the case in Hussey, was rejected. Similarly an argument that employment was limited to the “inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work” was rejected.
Windeyer J said the following at 637:
“The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact. It is a question on which the opinion of psychiatrists may obviously be helpful. But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious.”
His Honour continued by posing the following questions at 638:
“(a)   Was the applicant suffering from a disease?
(b)    If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)    If so, was her employment a contributing factor?
(d)    If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?”
His Honour then considered at 639 the question whether there had been aggravation, acceleration, exacerbation or deterioration of the disease. His Honour said:
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive to one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man’s sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying his health has deteriorated. The word ‘acceleration’ probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until the climax such as death or total invalidism is reached– its progress to this end not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli. If the word ‘accelerated’ stood alone, I would be inclined to agree with the view that Else-Mitchell J took in his judgment in this case, and think that it was only to such progressive diseases that the relevant part of the definition of ‘injury’ in the Act could apply. But the word does not stand alone; and I think, with respect, that the application of par (b) of the definition cannot be confined as he suggested. Schizophrenia is according to the evidence progressive in that it produces delusions which may tend to become chronic. But in the present case the words ‘aggravation’ or ‘exacerbation’ are more apt than ‘acceleration’ to describe the matters on which the case for the applicant depends.”
The Court of Appeal in Badawi referred to the High Court decision in Semlitch in considering the question of what was the “employment” referred to in sections 4, 9 and 9A of the 1987 Act. The Court also accepted the view of Davies AJA in Dayton as to the meaning of “substantial” appearing in section 9A as: “in a manner that is real and of substance” rather than “large or weighty or predominant”. Thus the majority did not follow the view expressed by Mason P in Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 approving the statement by Bishop CCJ, in that case, that “substantial” meant “more than minimal, large or great”.
It should be remembered that although the Arbitrator decided this case on the basis that the injury was the aggravation, acceleration etc of a disease, she accepted as probable, at [64] that “the symptoms he manifested indicated in late January /early February 2007 the onset of the condition rather than relapse”. She went on at [73] to say that she was satisfied that “the psychotic symptoms were present prior to 6 February 2007 although a correct diagnosis was not made until May when Mr Marzuki consulted a psychiatrist in Indonesia.”
In relation to section 9A, the Arbitrator concluded her reasons at [77] as follows:
“As recognised by the Court in Dayton (a case which coincidentally also involved the development of schizophrenia as an alleged injury) and notes above, a factor can be minor and still trigger the onset of a disease and symptoms but if it is minor amongst contributing factors it will not be ‘substantial’. A factor may come into the ‘last straw’ category and the substantial problem may be all the other factors. In summary, I am satisfied that this was the case with the work events which are alleged to have caused Mr Marzuki’s schizophrenic illness. S. 9A is not satisfied and Mr Marzuki is unable to recover the conversation which he claims.”
With the greatest respect, I consider there has been some confusion on the part of the Arbitrator as to whether she found the injury in question to be a disease contracted in the course of employment to which the employment was a contributing factor or the aggravation acceleration etc of a disease where the employment was a contributing factor to the aggravation, acceleration etc. As I have already noted, the Arbitrator expressed the view that she was dealing with the aggravation or, more likely acceleration, of a disease rather than the onset of a disease. It is clear on the authorities to which I have referred at [95] that an injury which consists in the contracting of a disease (section 4(b)(i)) is not the same as an injury which consists in the aggravation, acceleration etc of a disease (section 4(b)(ii)). Accordingly in applying the provisions of section 9A to an injury and asking whether the employment concerned was a substantial contributing factor to that injury, it must be kept in mind what the injury was found to be. As Burke CCJ said in Cant at [23]: “…the employment is required to substantially contribute to the aggravation and not the pre-existing condition other than by way of such aggravation. The frame of reference is to the contribution to the aggravation and not the overall disease”. Later his Honour said at [30]: “Broadly speaking, s 9A requires an evaluation of the factors operating in the causality of the worker’s injury and a determination of whether or not the employment added a factor of substance to other non-employment factors”.
The approaches of the Court of Appeal in Murray and Cook v Midpart Pty Ltd trading as McDonalds Forster & Anor [2008] NSWCA 151 to this question are entirely consistent with what Burke CCJ had said in Cant.
The Arbitrator, having found as an injury the aggravation or acceleration of the worker’s schizophrenia erred, it seems to me, in applying the provisions of section 9A to the onset of disease rather than its aggravation etc. However this does not necessarily mean that the decision of the Arbitrator should be set aside. I am required, consistent with authority, to ascertain whether the decision reached by the Arbitrator was nonetheless “true and correct” (Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287). I therefore propose to consider the evidence in order to make this determination.
The questions which arise are firstly, whether some or all of the events complained of by the worker occurred or were they merely the product of his delusions and secondly, did those events which did occur contribute to the worker’s psychiatric disease. Those which did not occur could not, in accordance with authority, constitute a contribution. (Townsend vCommissioner of Police (1992) 25 NSWCCR 9). Such would, it seems to me, be the symptoms of the disease rather than its cause. The investigator formed the view that there was “reported drug and theft activity” within the warehouse. The basis for this is in the conversation with a police officer who suggested that there was a Federal Police drug-related operation at the warehouse at around that time. The worker had also said in his statement that while he was at the police station another person telephoned and reported drug dealing. This account of the worker’s is of little probative value in my opinion. There is some confirmation of theft having occurred in the statement of Mr Craig Pike dated 13 March 2007 which is attached to the statement of Wilma Rutter. Mr Airth was reported to have told Mr Pike that the security company had “lost the site” because of ongoing thefts as well as harassment by the worker. The worker himself said that he had no proof that illegal activities were taking place at the warehouse but was simply suspicious about this. The conclusion of the investigator as to drug dealing and theft occurring at the warehouse was based in part on the worker being invited to join a gang which was operating at the warehouse. This does not appear to be what the worker told the investigator, namely that it was he who suggested joining the gang. There was no suggestion that Mr Airth was part of any illegal activity or that he did or could have invited the worker to join a gang. The reference to rewards being offered to the worker by Mr Airth is obscure, however it may relate to payments if the worker could establish that illegal activity was taking place and who was involved in it. The worker’s thinking was quite clearly deranged by 31 July 2007 which is the day on which he overheard a telephone conversation in which Mr Solomon said “97C” which the worker took to mean that he was 97% sure that his suspicions were correct. The worker’s account to Dr Younan (report of 12 September 2007) of “stealing goods, money laundering and an insurance scam” at the warehouse lack any real evidentiary support.
I accept Ms Bolad’s account of the events of Thursday 1 February 2007 rather than that of the worker. Ms Bolad had no motivation to lie whereas it seems to me the worker did. He may have done so intentionally or his account of those events may have been influenced by his psychiatric condition.
In any event, it seems to me that whether some or all of the allegations made by the worker are true is irrelevant to the determination of the worker’s entitlement to compensation. The question arises: is this case to be considered as an aggravation, acceleration etc of a disease or a disease contracted in the course of employment? The High Court in Darrin Zickar v MGH PlasticsIndustries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310, held that the definitions of “injury” and “disease” in section 4 of the 1987 Act were not mutually exclusive. But the contraction of a disease is not the same as the aggravation, acceleration etc of a disease. The latter would appear to require a pre-existing disease to which the employment makes a further contribution. The injury in such case is confined to the effects of that contribution by way of aggravation etc and not the pre-existing disease.
Windeyer J in Semlitch at 640 referred to “acceleration” in the context of a progressive disease and Moffitt J at 519 in the Full Court expressed a similar view: “A disease which is progressive according to this nature may, by reason of external stimuli, have its progress accelerated”.
There was no medical evidence in this case as to whether paranoid schizophrenia is a progressive disease or not.
The opinion of Dr Younan in his report of 3 November 2008 was that the worker’s delusions were caused by “the accident of 23 January 2007”. This is somewhat inaccurate and may be Dr Younan’s shorthand reference to all of the events related to him by the worker. In his report of 12 September 2007 Dr Younan expressed the view that the worker’s paranoid schizophrenia had most likely developed prior to working at the warehouse. He went on to say that if the incidents of abuse etc were true, then as a result the worker had suffered from anxiety and possibly activation of his psychotic disorder. Quite obviously if the doctor were of opinion that there was a pre-existing paranoid schizophrenia he could not also be of opinion that events at the workplace had caused its activation.
In the report of 24 August 2008 Dr Younan corrected what he said was his earlier mistaken view that the certificate of 21 May 2007 from a psychiatrist in Indonesia had predated the incidents of abuse. As I have already noted, I doubt that the doctor was under any misapprehension regarding this. Nonetheless, after receiving an account from the worker of his alleged abuse and events of the workplace and after reading the investigation report, he expressed a number of propositions on page 4 of that report which I will paraphrase:
(a)     It was extremely unlikely that a paranoid schizophrenia would develop as a result of a few incidents of abuse.
(b)     It was most likely that the worker was extremely vulnerable to develop schizophrenia.
(c)     The worker’s feeling that he had psychic powers was evidence of his vulnerability to paranoid schizophrenia.
(d)     In 41 years of psychiatric practice he had never seen a case of schizophrenia as a result of incidents of abuse.
(e)     It was very unlikely that a full-blown psychotic picture would have occurred so soon after the incidents of abuse.
(f)      Incidents of abuse had activated a previously dormant vulnerability to schizophrenia.
(g)     Had the worker not been exposed to the incidents he claimed he might not have been in his present psychotic state.

The terms used by Dr Younan as to the effect of the workplace events are “activation” and “activate” which suggests that it is appropriate to regard this as a case of a disease contracted in the course of employment rather than aggravation, acceleration etc of such disease. The medical evidence does not, I think, permit me to say that the worker’s belief in his ability to read the minds of others and his claimed psychic powers amounted to his suffering from paranoid schizophrenia prior to January 2007. These indicated at most a vulnerability to develop paranoid schizophrenia rather than the disease itself and the expert evidence does not equate these two conditions.
The next question then is whether the worker’s employment was a contributory factor to the contracting of the disease. “Employment” refers to “what the worker in fact does in the employment” (Mason P in Mercer at [13]) or “some incident or state of affairs to which the worker was exposed in the performance of his duties” (Kitto J in Semlitch at 632).
Given the views expressed by the doctor in (a), (d) and (e) above, which clearly have some basis in the doctor’s clinical experience, it is very difficult to account for his conclusions in paragraphs (f) and (g). The doctor gives no basis for these conclusions and the only connection appears to be a temporal one as Dr Terace pointed out in his report. I note that the conclusion in paragraph (g) is expressed as no more than a possibility. Although it has not been argued I propose to consider whether that opinion of Dr Younan would be sufficient for an inference of causation to be drawn when taken with other evidence.
As Glass JA said in Fernandez v Tubemakers of AustraliaLtd (1975) 2 NSWLR 190 at 197:
“The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner forRailways (NSW) (1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238: appeal dismissed (1970) 44 ALJR 360(n). The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence.”
In Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 the High Court (Dixon J dissenting) held that a causal connection might be inferred in that case from the sequence of events, that is, exertion followed by death as a result of coronary thrombosis.
I accept the evidence that in cases of paranoid schizophrenia the disease may develop at any time. When it does develop then the person concerned is likely to suffer from delusions and irrational fears concerning events at that time. To then say that the imagined beliefs and fears were causative of the disease would be illogical. I would entertain considerable doubt that most if not all of the events relied on by the worker in fact occurred.
In conclusion I am not satisfied that the actual events in the worker’s employment contributed to his developing paranoid schizophrenia. In Dr Younan’s own opinion the time from the workplace incidents to the condition developing is too short and it is contrary to Dr Younan’s experience over many years that the events related by the worker, which he accepted in part as true, could have brought about his psychiatric condition.
Section 4(b)(i) of the 1987 Act requires a causal connection between employment and the disease which in my opinion is missing in this case.
Thus, I differ from the Arbitrator in finding that no injury as defined had occurred. It is not therefore necessary in my opinion to consider the application of section 9A of the 1987 Act since if employment was not a contributing factor to the disease it could not have been a substantial contributing factor to it.
It is however necessary to revoke the decision of the Arbitrator in order to correctly state the determination that ought be made in view of the amendment which I permitted the worker to make.

DECISION

The decision of the Arbitrator dated 18 May 2009 is revoked and the following decision is made in its place:
“1. There is an award for the respondent in respect of all claimed injuries including those the subject of amendment specified in the worker’s supplementary submissions on appeal and attached to the letter of 6 October 2009.
2. No order as to costs.”

COSTS

In this appeal I think it appropriate that each party pay his or its own costs.

Anthony Candy
Acting Deputy President
3 December 2009

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE