McCarthy v NSW Police Force - [2015] NSWWCCPD 63

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	McCarthy v NSW Police Force [2015] NSWWCCPD 63
APPELLANT:	Lee Michael McCarthy
RESPONDENT:	NSW Police Force
INSURER:	Employers Mutual Ltd
FILE NUMBER:	A1-953/15
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	22 July 2015
DATE OF APPEAL DECISION:	13 November 2015
SUBJECT MATTER OF DECISION:	Inconsistent and conflicting evidence of expert tendered by the parties; inconsistency not brought to notice of Arbitrator; whether constructive error on part of the Arbitrator in failing to refer to entirety of evidence; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 considered; s 11A of the Workers Compensation Act 1987; whether psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to discipline; need for remitter for redetermination by Arbitrator
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	RMB Lawyers with Morton & Harris
Respondent:	Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The finding and award found in [1] and [2] of the Certificate of Determination dated 22 July 2015 are revoked. 2. The matter is remitted to Senior Arbitrator McDonald for redetermination.

INTRODUCTION

Mr Lee McCarthy is a member of the NSW Police Force (the respondent). He commenced that service in 1996 and has attained the rank of senior constable.
Mr McCarthy alleged that, by reason of his exposure to distressing and traumatic events in the course of his employment since 2008, he suffered a psychological injury and has become incapacitated.
The respondent does not dispute that Mr McCarthy has received psychological injury, but asserts that such injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline. The respondent relies upon the provisions of s 11A of the Workers Compensation Act 1987 (the 1987 Act) by way of defence. That section relevantly provides:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers…”
The dispute came before Senior Arbitrator McDonald for conciliation and arbitration on 3 July 2015. The matter proceeded to hearing and the Senior Arbitrator reserved her decision. A Certificate of Determination, accompanied by a Statement of Reasons (Reasons), was issued on 22 July 2015 which recorded the following:
“The Commission determines:
1. The applicant suffered a psychological injury in the course of his employment.
2. There is an award for the respondent on the basis that the injury was caused by reasonable action taken by the respondent with respect to discipline within the meaning of s 11A(1) of the Workers Compensation Act 1987.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Mr McCarthy brings this appeal against the Senior Arbitrator’s findings and order.

ON THE PAPERS

Whilst both parties consent to the appeal being heard on the papers, as is permitted by the terms of s 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), it became apparent that there existed an anomaly with respect to the evidence of an expert medical witness, Dr Samson F Roberts, whose report dated 4 December 2013 was relied upon by both Mr McCarthy and the respondent. Shortly stated, the reports as tendered by the parties do not correspond so far as content is concerned. The report tendered on behalf of the respondent contains a revised history and an expression of opinion which expressly takes into account those further facts when the question of causation is addressed.
It also became apparent that the anomaly referred to immediately above had not been brought to the notice of the Senior Arbitrator and, it seems, that during argument and in the course of the Senior Arbitrator’s Reasons, reference had been made to only that report in its form tendered on behalf of Mr McCarthy. In the circumstances, a telephone conference was appointed to permit supplementary submissions. That telephone conference was conducted on 5 November 2015 and was attended by counsel appearing on behalf of each party. A Direction had been made prior to that telephone conference inviting submissions concerning the relevance, if any, of the evidence of Dr Roberts, as found in both reports, to the question of causation of injury as challenged on appeal, and otherwise.
Submissions presented by the parties at that telephone conference are noted and discussed below, however, it is convenient at this point to note those differences between the two reports of Dr Roberts. The report tendered on behalf of Mr McCarthy is referred to herein as report A and the report tendered on behalf of the respondent is referred to as report R.
The points of difference between the two reports are as follows:
(a)     At p 5 of report R two paragraphs appear which do not appear in report A. One of those paragraphs which is of relevance is as follows:
“Mr McCarthy did not mention that there had been a further criminal charge. It was my understanding that the only criminal matter was that referred to above and that this was the offence referred to in the letter of 20 November 2013. It became apparent on re-reading the documents and on confirmation with your office that there was in fact a further criminal charge and this charge led to Mr McCarthy’s suspension from the Police Service.”
(b)     The following paragraph appears at p 9 of report R, which paragraph is absent from report A:
“It is evident from reviewing the documents that form the basis for this further claim is Mr McCarthy’s assertion that he experienced a further decline in his condition following the events that form the basis of this claim”.
(c)     At p 12 of each report Dr Roberts included a “Summary and Opinion”. Report A makes reference only to the 2012 charges concerning the assault. Report R included the following matters which did not appear in report A:
“According to the information available, Mr McCarthy ascribed a deterioration in his pre-existing condition to further criminal charges. By the time of his attendance for assessment, Mr McCarthy reported that his condition had improved.
At interview, Mr McCarthy did not provide an account of this second criminal charge. His assertion that this event was therefore of significance is undermined. There was no material provided with regard to the progression of his condition to suggest that it had followed a course contrary to that which would have been expected of the underlying condition, irrespective of this subsequent event. Neither is it evident that a change in Mr McCarthy’s treatment requirements was required consequent upon a subsequent event, deterioration or condition.
Irrespective of the impact of this event on Mr McCarthy’s overall psychiatric presentation, it is expected that the legal consequences of criminal behaviour would not be considered to represent a workplace event. Any action taken by an employer in response to criminal allegations would be expected to fall within the remit of Section 11a [sic, 11A] of the Workers Compensation Act 1987.”
(d)     At p 13 of each report, Dr Roberts sets out his diagnosis. In report A, Dr Roberts stated a diagnosis being adjustment disorder with depressed mood. It was also stated that Dr Roberts was “not of the opinion that his condition represents Posttraumatic Stress Disorder in accordance with DSM-V criteria”. Dr Roberts, at the top of p 14, stated that the condition diagnosed was a response to the events surrounding the assault, subsequent legal proceedings and the response from the Police Service.
In report R at p 13, Dr Roberts expressed the following diagnosis:
“Mr McCarthy’s underlying diagnosis is one of an adjustment disorder with Depressed Mood. This condition predates the event that forms the basis of this claim which has not caused an independent psychiatric condition nor is it apparent that the event has overtly exacerbated the underlying condition. In fact Mr McCarthy neglected to mention it.”
(e)     Report A at p 14 records Dr Roberts as stating:
“Having regard for the information available in relation to Mr McCarthy, it is my opinion that there are three factors contributing to Mr McCarthy’s condition. These include the events at the Howlong Hotel [the 2012 assault matter ‘the pub brawl’], the subsequent legal circumstances arising from those events and the response of the Police Service.”
In report R Dr Roberts, apparently referring to the charges relating to computer misuse, stated:
“Although Mr McCarthy submitted this further claim, it is not apparent that he developed a further condition nor is it clear that his pre-existing condition was altered by this subsequent event” (at p 14 of the report).
(f)      In report A, Dr Roberts noted that he did not obtain information to indicate the presence of a pre-existing condition. In report R, Dr Roberts was questioned by the insurer as to whether there was evidence of a pre-existing condition, to which Dr Roberts replied:
“Mr McCarthy was suffering an Adjustment Disorder with Depressed Mood when the event that forms the basis of this claim arose. It is not considered that this event exacerbated the underlying condition. Indeed, Mr McCarthy in fact neglected to mention it during his assessment” (at p 15 of the report).
(g)     Dr Roberts, in response to a question relating to psychological counselling responded in report A as follows:
“As indicated previously, I have concerns regarding the nature of the psychological therapeutic approach. In my opinion, Mr McCarthy warrants the intervention of a Consultant Psychiatrist with the expertise to guide and oversee the modalities of treatment required to fully treat Mr McCarthy’s condition.” (at p 18)
In report R in response to the same question concerning counselling, Dr Roberts stated (at p 17):
“I am of the opinion that pharmacological treatment is necessary for the management of his pre-existing condition. I have concerns as to the nature of the psychological therapy being provided for the management of his pre-existing condition and the potential for the psychological therapy to have an adverse impact in its current form. I do not believe that this condition has altered consequent upon the further criminal charges.”
The totality of Dr Roberts’ evidence had not been referred to by the parties, nor had it been considered by the Senior Arbitrator. That failure by the Senior Arbitrator constitutes constructive error on her part which, for the reasons stated below, has affected her decision and requires that it be revoked on this appeal.

THRESHOLD MATTERS

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

ISSUES IN DISPUTE

The grounds of appeal relied upon by Mr McCarthy are as follows (at [2.8] of submissions in support of appeal):
“A.    The Arbitrator had no jurisdiction to determine that the appellant wasn’t suffering from PTSD as alleged in the ARD as that was not disputed in writing before the determination, and hence erred in Law.
B.      The Arbitrator erred in fact in finding that the appellant’s incapacity for work arose after he was charged with offences relating to accessing information from the Police computer.
C.      The Arbitrator erred in fact in finding that the appellant’s incapacity arose from adjustment disorder arising from the criminal charges.
D.     The Arbitrator erred in Law in failing to determine the cause of the appellant’s incapacity for work on and from 29 April 2014 and in failing to evaluate all relevant evidence in that regard.”

THE EVIDENCE BEFORE THE SENIOR ARBITRATOR

Mr McCarthy relied upon the evidence of Dr Bruce Westmore, forensic psychiatrist, as found in three reports prepared by him dated 1 May 2013, 16 December 2013 and 16 September 2014. The first of those reports had been requested by Mr McCarthy’s then solicitors who were acting on his behalf concerning a charge of assault which he was facing. Mr McCarthy, in the course of his duties in August 2012 when attending a “pub brawl”, had struck a member of the public. He intended to plead guilty to that charge.
It seems that those advising Mr McCarthy at that time contemplated placing reliance upon the provisions of s 32 of the Mental Health (Forensic Provisions) Act 1990, which permits a Magistrate, in appropriate circumstances, to dismiss a charge and make orders as to the discharge of the defendant in accordance with s 32(3) of that Act.
Dr Westmore was provided with six incident notification forms which related to matters experienced by Mr McCarthy in the course of his duties. It is convenient to note at this point that those notices are not otherwise in evidence. Dr Westmore also recorded matters related by Mr McCarthy in response to questions put to him in the course of that consultation as to whether he had experienced traumas in the workplace. Dr Westmore expressed his opinion, which included the following:
“On the balance of probability, Mr McCarthy was suffering from a Chronic Posttraumatic Stress Disorder at the time the incident now before the court occurred. This is a psychiatric illness identified in the DSM IV. Mr McCarthy is likely to be currently suffering from a Chronic Posttraumatic Stress Disorder and his presentation in my office was also consistent with him having an Adjustment Disorder with depressed and labile mood. On the balance of probability, Mr McCarthy’s Chronic Posttraumatic Stress Disorder contributed to his behaviour. Other police officers I have seen who suffer from this condition almost universally report that their attitude and tolerance of problematic behaviour by members of the community diminishes as they become progressively unwell. I suspect that is what occurred in relation to this incident. By the time Mr McCarthy encountered the other man involved in this incident, Mr McCarthy’s levels of frustration and tolerance are likely to have been depleted and that in turn lead to his aggressive actions.”
As anticipated by Dr Westmore in that report, a “section 32” was not applied for at the hearing. Other evidence established that, in April or May 2013, a plea of guilty was entered and, it seems, an order of dismissal was made pursuant to s 10 of the Crimes(Sentencing Procedure) Act 1999.
In May 2013, Mr McCarthy reported work related injury, being Post Traumatic Stress Disorder (PTSD). No incapacity for work had occurred at that time. A departmental enquiry was then in progress concerning the circumstances of the assault and the subsequent proceedings. Mr McCarthy took a period of leave at that time.
In August 2013, the respondent commenced enquiries concerning allegations that Mr McCarthy had accessed the police computer database without authority. Whilst the exact chronology is not clear on the evidence, it seems that Mr McCarthy ceased work, at first on sick report, in that month. Later that year, in either late September or in October or November (the evidence conflicts), Mr McCarthy was charged with two counts of “Access/Modify restricted data held in computer: s 308 Crimes Act 1900”. He had, in October 2013, been served with documents informing him that he had been suspended from duty. In the meantime, workers compensation benefits had been paid to Mr McCarthy commencing in September 2013 following a claim made in that month. Those payments ceased in late April 2014 following the respondent’s denial of liability.
Mr McCarthy’s solicitors, whom he had instructed to act in relation to the alleged computer offences, arranged for him to be re-examined by Dr Westmore, who provided a second report, dated 16 December 2013.
Dr Westmore recorded a history in that second report concerning the outcome of the assault matter and that Mr McCarthy had subsequently been charged with the computer related offences. Included in that history was detail concerning Mr McCarthy’s consultation with a psychologist, Mr Richard Brown, whom he had seen “on about 12 occasions”. Other evidence establishes that Mr McCarthy was referred to Mr Brown by his then general practitioner, Dr Peter Love. Mr Brown was first consulted on 5 September 2013. Mr McCarthy changed his general practitioner from Dr Love to Dr Sang Kim, whom he first consulted on 25 November 2013.
Mr McCarthy responded to questions put by Dr Westmore, stating that he “had been seeing psychologists and a counsellor from EAP [employee assistance plan] since 2008” and that he had consulted a psychologist, Ms N Browne “since 2008” and that those sessions “stopped in May 2013”. I note that the records of Ms Browne, which are in evidence, establish that Mr McCarthy was referred to Ms Browne by a previous general practitioner, Dr Duraid Youssef in November 2008 and that the consultations, 11 in number, occurred between January 2009 and March 2010. Detail of those consultations is addressed below.
Dr Westmore made the following observation and expressed his opinion (at p 6 of the report dated 16 December 2013):
“Mr McCarthy’s mental health and his capacity to function effectively as a police officer has probably been deteriorating in a slow, but progressive way since around 2008. At that time, he first consulted counsellors from EAP, although he did not find that to be particularly helpful. He subsequently, on his own initiative, attended another psychologist and he saw her regularly until 2013, at which time she moved to Queensland.
…
As in my previous report, I would indicate to the court that Mr McCarthy was, on the balance of probability, suffering from a Chronic Posttraumatic Stress Disorder at the time the current matters arose and he currently suffers from an Adjustment Disorder with a depressed, anxious and labile mood. These are all mental conditions which could be treated in a designated psychiatric facility. The court could certainly consider Mr McCarthy under Section 32 of the Mental Health (Forensic Provisions) Act 1990.”
The third report of Dr Westmore was obtained for the purposes of this litigation by Mr McCarthy’s present solicitors. Dr Westmore re-examined Mr McCarthy on 28 August 2014. Mr McCarthy informed Dr Westmore that the computer charges had been dealt with in court, but one charge had been withdrawn and the other, after a plea of guilty, was dealt with “by way of Section 32”.
When asked about the “general nature of the traumas” he had experienced Mr McCarthy said “deceaseds, accidents, assaults, everything basically”. More detail was recorded by Dr Westmore when history of psychiatric symptoms and treatment was noted in that report (at p 3). When summarising his consultation and views, Dr Westmore stated (at pp 7–8 of the report):
“I note the treatment recommendations suggested by Dr Roberts following his assessment of Mr McCarthy, specifically it was felt that Mr McCarthy should be consulting a psychiatrist for ongoing treatment. I have also previously suggested he see a psychiatrist and I agree that Mr McCarthy needs treatment with medication. Mr McCarthy has developed a psychiatric condition as a result of his exposure to workplace trauma. While Dr Roberts and I may not agree on whether or not he has developed a Posttraumatic Stress Disorder, he certainly has an Adjustment Disorder and we both agree in relation to that diagnosis.
I am of the view that there is sufficient historical information available to support the diagnosis of PTSD and I think Dr Roberts himself actually collected that history, although he did not achieve the diagnosis. That is no criticism of Dr Roberts, often extended clinical contact with a person is required before the full nature and extent of their psychiatric problems becomes apparent. I would accept that Mr McCarthy was adversely affected psychologically as a result of disciplinary matters that arose following the assault incident in August 2012 and the illegal release of information charges in October 2013. The history however is quite clear, in that he was suffering psychological symptoms prior to that time and he sought assistance from EAP. Police officers are generally very reluctant to use the services of EAP, they believe it is a reflection of weakness and personal failure and they also think attending somebody from EAP might impact adversely on their career. The fact that Mr McCarthy continued consulting the psychologist privately is a suggestion that he was being affected psychologically at that particular time and it is unlikely to have been, as Dr Roberts has suggested, simply a matter of him wanted [sic] to be debriefed.”

Mr McCarthy relied upon two statements made by him, the first having been recorded by a representative of the insurer on 25 October 2013 and the second being a short supplementary statement made on 14 May 2015.
The first statement outlines Mr McCarthy’s career background and reference is made to a “psychological claim” made by him in 2010 when he attended a domestic dispute where a man had threatened to kill his children. Mention is also made of another incident concerning a suicide and recovery of the deceased’s body in 2010. Also in 2010, Mr McCarthy had attended a fatality following which he stated he had “made a claim”. Two further incidents were recorded in that statement, one concerning a motor vehicle accident victim with very severe head injuries which required Mr McCarthy’s physical assistance, and Mr McCarthy witnessing a man slashing his wrist in an attempted suicide.
Mr McCarthy described in that statement the history of the assault charge and his examination by Dr Westmore. After the matter was dealt with by the court, Mr McCarthy approached the respondent concerning the report provided by Dr Westmore and asked what should be done. It was suggested that he “submit the Workcover claim”. That was done in May 2013. He had no incapacity for work at that time.
Mr McCarthy proceeded to outline the circumstances of the computer access incidents which led to the criminal charges. Mr McCarthy asserted in that statement that he was “acting correctly”. He further stated:
“I had been told unofficially that there is an investigation under way in relation to the [computer] incident and this just tipped me over the edge and as a result of this I submitted the Workcover claim dated 29 September 2013. I have been charged but I have not been interviewed. I have been told by the Investigator that I am ‘Collateral Damage’”.
In the supplementary statement, Mr McCarthy stated that he continued to consult Ms N Browne “regularly until 2013, at which time she moved to Queensland”. It is further stated that he continues to consult Mr R Brown. When the court dealt with the computer offences, (one of which Mr McCarthy asserts was withdrawn) the matter was dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 and orders were made with respect to ongoing treatment of Mr McCarthy by Mr Brown.
In evidence there is a copy of correspondence from Mr Richard Brown addressed to Dr Love dated 6 November 2013. The diagnostic criteria appearing in DSM-IV-TR, in Mr Brown’s opinion, were satisfied as stated in that document. A diagnosis of Post-traumatic Stress Disorder was indicated. The matters recorded relate to traumatic work experiences, not described, and Mr McCarthy’s response to those incidents. No history of the charges faced by Mr McCarthy is recorded.
The evidence of Dr Roberts, as found in both forms of his report dated 4 December 2013, is discussed above between [9] and [10]. It appears that the form of the report referred to by Dr Westmore, as noted at [24] above, was that which was tendered on behalf of Mr McCarthy, that is, the version which did not have the revisions as earlier noted.
The clinical notes of Dr Love were tendered in evidence by the respondent. Those notes include a copy of a WorkCover medical certificate dated 14 November 2013 in which “diagnosis of work related injury/disease” is noted as being: “‘? PTSD’ (but recent psychiatrist review believes that this is not the case and he is reacting appropriately to situation) ie he has an adjustment disorder with disturbance of conduct”. Comments recorded by Dr Love in that certificate are as follows:
“A recent review by Dr David Smith psychiatrist felt issues were to do with his situation and that his PTSD has been adequately treated previously. His reaction to his current situation is normal and not related to PTSD. He has diagnosed it as an Adjustment Disorder with disturbance of conduct, not PTSD.”
Dr Love had, on 4 November 2013, certified Mr McCarthy as being fit for 12 hours work per day, four days a week. Factors “delaying full recovery” were noted by that practitioner as:
“Recent exacerbations of symptoms. He is worried about recent issues and workplace issues are exacerbating his problem and not helping and recently has had charges laid against him for another matter.”
Reference was made to Dr Smith in an entry found in Dr Love’s notes dated 8 November 2013 as follows:
“Noted Dr Smith’s letter and referred back to work adjustment disorder with disturbance of conduct rturns [sic] to see me after 4 days also I believe Richrd [sic, Richard] Brown has emailed or sent letter to no record of either in correspondence reviewed today escitalopram is for anxiety disorder associated with his adjustment disorder also police report on fitness actioned given card.”
There is no evidence of Dr Smith before the Commission.
The earlier notes of Dr Love, between 30 September 2013 and 23 October 2013, record “investigations at work”; that Mr McCarthy had been contacted by “professional standards”, and that Mr McCarthy “feels very threatened and has now obvious anger issues and conflict with crying, poor sleep and emotionally labile not drinking but threatens to do so if his wife wasn’t here needs time off as his emotional state needs ongoing psychological counselling”. The entry dated 23 October 2013 records:
“review today has is [sic] having panic attacks and swaets [sic] and was charhege [sic] with alleged wrong doing recently.”
The handwritten notes compiled by Ms Browne referred to at [21] above make reference to circumstances which were, it seems, troubling Mr McCarthy, however detail of those matters is not present. Reference is made in that first note dated 19 January 2009 to a history that Mr McCarthy said “he was nervous about going back to work in case he had to protect himself and he was worried the investigation would start again”. A note made on 23 February 2009 recorded that Mr McCarthy was “still worried about the court case” and that he was “filing for compensation”. On 16 March 2009, Ms Browne recorded that Mr McCarthy “was waiting for the court case outcome to see what kind of a reprimand he was going to get and he was very stressed about this”. A later note, made on 30 March 2009, recorded that the “court case went on and there was no criticism from the judge for his actions but he was still ‘in limbo’”. Mr McCarthy stated he was “still very anxious and stressed about it all”.
Subsequent notes made by Ms Browne concern “stress” related to difficulties, including “complaints” and “bullying” arising at work. Mr McCarthy described difficulty he experienced arresting an offender who had stabbed another officer, and when he “found the murdered girl”. There is a handwritten notation at the foot of notes made on 5 October 2009 as follows: “PTSD”.
Ms Browne, on 15 March 2010, recorded that Mr McCarthy reported that there had been some incidents at work that upset him and reference was made in the notes to three incidents including a suicide and a motor vehicle accident. He reported that he had “images of the events” in his mind “every now and then (not every day)”.

SUBMISSIONS BEFORE THE SENIOR ARBITRATOR

Submissions put by counsel on behalf of each party have been recorded and a transcript has been produced and made available to the parties. Those submissions are also described in detail in the course of the Senior Arbitrator’s Reasons. In the circumstances, it is proposed to attempt only a brief summary of argument as presented.
At the outset of submissions, counsel appearing on behalf of Mr McCarthy made the following statement (at T3):
“… the first issue you’re going to have to decide is does [Mr McCarthy] suffer from a condition known as Post Traumatic Stress Disorder. [Mr McCarthy’s] medical evidence would suggest that he does and the respondent’s medical evidence, I think, doesn’t accept that and says that he suffers from an adjustment disorder essentially. [Mr McCarthy’s] claim is based upon chronic Post Traumatic Stress Disorder. A diagnosis is supported by Richard Brown.”
Counsel proceeded to summarise the evidence as found in the report of Mr Brown. It was argued that the psychiatric condition as diagnosed by Mr Brown was the result of trauma to which Mr McCarthy had been exposed in the course of his duties.
Counsel also placed reliance upon the evidence of Dr Westmore. Careful attention was given to the contents of Dr Westmore’s three reports in the course of these submissions and it was argued that the diagnosis reached by that practitioner should, on balance, be accepted by the Commission.
Counsel made reference to the evidence of Ms Browne and placed reliance upon the notations made on 5 October 2009, noted at [38] above, and particular emphasis was placed upon the notation at the foot of that entry being “PTSD”.
A submission was put that it would be accepted that the traumatic events described in the evidence had caused PTSD and, in particular, that Mr McCarthy’s mental state has “nothing to do with disciplinary action” (at T13).
Counsel appearing on behalf of the respondent submitted that conflict between the manner in which Dr Westmore characterised the assault, that being inappropriate behaviour, and Mr McCarthy’s assertion, that his behaviour was in every respect appropriate, must be relevant to the persuasive force of Dr Westmore’s evidence. Mr McCarthy explained his plea of guilty in relation to the assault charge upon the basis that he had been advised to do so and that he was unable to prove that he did not assault the member of the public. It was argued before the Senior Arbitrator that that aspect of Dr Westmore’s evidence concerning the reasons for Mr McCarthy’s inappropriate behaviour was “flawed”.
Counsel further argued that the history given to Dr Westmore by Mr McCarthy of traumatic events came about after particular questioning from Dr Westmore. It was suggested in argument that Mr McCarthy had been prompted to volunteer those matters. As argument was developed, a contrast was drawn between matters recorded in the notes of Ms Browne and the detail of traumatic events as recorded by Dr Westmore.
It was expressly put by counsel that “the event that actually put [Mr McCarthy] off work was the event when he finds out that he is being investigated in relation to the criminal offence with which he was charged…” (at T23).
Counsel returned to the subject of Ms Browne’s notes and it was argued, generally, that given the absence of detail it was difficult to understand as to what the events there recorded were “about” (at T24). The point was made in argument that the term “PTSD” appeared in the notes “almost enigmatically” and that it might suggest that such was a diagnosis that Ms Browne “was considering” (at T27). The thrust of counsel’s argument was that the absence of detail to be found in those notes was such that that evidence would not be persuasive concerning the issue of diagnosis.
It was further argued that there was, apparently, a correspondence between the views expressed by Dr Smith and the opinion of Dr Roberts, being that Mr McCarthy at relevant times had suffered “an adjustment disorder with disturbance of conduct, not PTSD” (T32).
The respondent’s position concerning the general circumstances of Mr McCarthy’s employment appears to be summarised by counsel in the following statement made in the course of submissions (at T34):
“… [the respondent does not] deny that there was an emotional response to the incidents that [Mr McCarthy] does talk about with Dr Westmore and that is consistent with his consultations with Nicole Brown[e]. [The Respondent says] that is not an enduring emotional response. It is apparent that [Mr McCarthy] came to the belief that he’s potentially more fragile than he previously believed.”
Counsel then placed reliance upon the following statement by Dr Roberts in support of the contention that a defence pursuant to s 11A was available to the respondent:
“… I am not of the opinion that his condition represents Posttraumatic Stress Disorder in accordance with DSM-V criteria. His account of his response to previous workplace circumstances does not reflect the development of emotional symptoms consequent upon those past incidents. While DSM-V acknowledges that Posttraumatic Stress Disorder may be delayed in its expression, it is generally expected that at least some symptoms would occur immediately following the stressor, even if full diagnostic criteria are not immediately met. I was unable to identify sufficient psychiatric symptomatology on which to base a diagnosis of Posttraumatic Stress Disorder with respect to the events at the Howlong Hotel. However, it is apparent that in response to those events, subsequent legal proceedings and the response from the Police Service, Mr McCarthy developed a psychiatric condition, namely an Adjustment Disorder with Depressed Mood” (pp 13–14 of Dr Roberts’ unrevised report dated 4 December 2013).
Counsel appearing on behalf of Mr McCarthy, in reply, argued that regard should be had to the certificates issued by Dr Kim, each of which, since the date of commencement of the claim, had certified that Mr McCarthy suffered from the condition of post-traumatic stress disorder. The evidence of Mr Richard Brown was referred to in reply during which the Senior Arbitrator expressed “concern” that Mr Brown did not set out any of the “particular events” which were said to be relevant. Counsel, in response to the Senior Arbitrator’s questioning, submitted that such detail concerning the events is elaborated elsewhere in the evidence.

The Senior Arbitrator’s Decision

The Senior Arbitrator, when summarising the evidence and submissions put on behalf of the parties, made the following observation concerning the issues for her determination:
“The decision in this matter turns on a consideration of the facts rather than legal questions. [Counsel for Mr McCarthy] did not make any submissions against the proposition that the charges were reasonable action with respect to discipline within the meaning of s 11A of the 1987 Act.” (at [17] of Reasons)

After a summary of the evidence and submissions, the Senior Arbitrator made the following observation and finding:
“There is no dispute between the parties that Mr McCarthy suffers a psychological injury and I do not doubt that he does. I consider that the better view of the medical evidence is that whilst he may have suffered PTSD in the past, it is not the current cause of any incapacity.” (at [74] of Reasons)
The Senior Arbitrator, following an evaluation of the expert medical evidence, proceeded to make the following findings and order:
“I therefore find that Mr McCarthy suffered a psychological injury in the course of his employment. Though he may have suffered from PTSD in the past I find that it was not the appropriate diagnosis on the alleged date of injury on 1 May 2013 nor was it the appropriate diagnosis when he became incapacitated for work in September 2013. I agree that 1 May 2013 is the appropriate date of injury but not the commencement date of incapacity. A review of the history shows that Mr McCarthy did not suffer any incapacity for work until after the charges relating to inappropriate access to the computer had been laid. The incapacity arose from the Adjustment Disorder arising from the criminal charges.
There is therefore an award for the respondent on the basis that the injury arose from reasonable action taken by the respondent with respect to discipline.” (at [87]–[88] of Reasons)

SUBMISSIONS, DISCUSSION AND FINDINGS

Ground A

The appellant asserts in ground A that the Senior Arbitrator lacked jurisdiction “to determine that [Mr McCarthy] wasn’t suffering from PTSD…”. In submissions it is made reasonably clear that Mr McCarthy asserts that the respondent had failed to give notice, as is required by the provisions of s 74 of the 1998 Act, that liability was disputed by reason of a denial by it that Mr McCarthy suffered from the condition known as post-traumatic stress disorder. As argued on behalf of Mr McCarthy, the respondent had made no application seeking the Commission’s exercise of discretion to permit such a dispute to be entertained as might be permitted pursuant to s 289A of the 1998 Act. Mr McCarthy acknowledges in his submissions that this argument was not raised before the Senior Arbitrator but argues that the question may be determined on this appeal given that jurisdiction cannot be conferred by consent. That last submission must be accepted.
The Senior Arbitrator’s approach to the dispute is succinctly stated by her at [17] of Reasons, which I have noted at [54] above. As noted by the Senior Arbitrator, Mr McCarthy did not dispute that the charges faced by him were reasonable action with respect to discipline. The respondent had relied upon s 11A by way of a defence to the claim. The success, or otherwise, of the defence depended, in my view, upon the Senior Arbitrator’s determination of a reasonably broad spectrum of factual issues, including the question as to appropriate diagnosis. The fundamental question was what experiences, if any, had caused psychological injury. The answer to that question, having regard to the disparate medical evidence, necessarily led to a conclusion as to diagnosis.
It is abundantly clear, in my opinion, that the necessity for the Senior Arbitrator to address factual disputes, including the question of ultimate diagnosis, was acknowledged by Mr McCarthy’s counsel in the course of his submission before the Senior Arbitrator. I have earlier (at [41] above) noted the opening submission put by counsel for Mr McCarthy, Mr Boulton, and it is also relevant to note the following argument advanced by counsel (at T13):
“… But the critical issue is, does this man suffer from Post-Traumatic Stress Disorder? If he does, then you would have to consider what are the life-threatening events that have brought about this condition, because that condition - you cannot make that diagnosis without having such events and if you find that that is the diagnosis, in my submission, the only events that qualify or, at least, the events where this man has been exposed to fear for his own life and horrific events that have happened to other people are obviously the events that base that diagnosis.
If the diagnosis is correct, in my submission, and you accept that, you must accept that they are the events or that those events are substantially the basis for the diagnosis and nothing to do with disciplinary action or whatever. Those events do not qualify in any way to base that diagnosis...”
The obligation upon an insurer to provide a concise and readily understandable statement of the reason or reasons for denial of the claim which is imposed by the terms of s 74 requires, in the case of a defence raised pursuant to s 11A, particulars as to which element prescribed by s 11A(1) is in issue. The respondent in the present case made plain in its s 74 notice dated 5 March 2014, that reliance was placed upon those facts and circumstances concerning both sets of charges and associated police procedures which, it was asserted, wholly or predominantly caused psychological injury and which constituted reasonable disciplinary action. In my opinion, the manner in which the dispute was particularised in that notice met the requirements of s 74. Mr McCarthy’s argument as to jurisdiction is not made out. Ground A is rejected.

Grounds B and C

Ground B asserts error of fact on the part of the Senior Arbitrator in finding that the appellant’s incapacity for work “arose after he was charged with offences relating to accessing information from the police computer”. Ground C alleges a further factual error in finding that Mr McCarthy’s incapacity arose from adjustment disorder arising from the criminal charges. Each of these grounds raise issues which are inextricably bound up with matters raised on behalf of the parties in the course of supplementary submissions which were called for by reason of the state of Dr Roberts’ evidence. In the circumstances, it is proposed to deal with argument as raised at the telephone conference conducted on 5 November 2015. The written submissions earlier provided by each party concerning grounds B and C will then be addressed. Given my acceptance of Mr McCarthy’s argument, noted below, concerning alleged failure to address the totality of the evidence, his complaint of error in the Senior Arbitrator’s fact finding process is made out and the matter will, necessarily, require redetermination.

Supplementary submissions made at the telephone conference

Counsel for Mr McCarthy, Mr Boulton, submitted that in report R “Dr Roberts is clearly dealing with the criminal charges relating to the computer access matter”. Mr Boulton proceeded to highlight the passages in report R which I have noted above in [9] and it was put that there had been a failure by the Senior Arbitrator to evaluate that evidence and that such failure constituted an error in the fact finding process. Reliance was placed upon the observations made by Hayne J in Waterways Authority vFitzgibbon (2005) 79 ALJR 1816 at 1835 and 1836 (Fitzgibbon). Counsel further made reference to the Senior Arbitrator’s finding that “the incapacity arose from the adjustment disorder arising from the criminal charges” and submitted that such conclusion was completely contrary to the evidence of Dr Roberts as found in report R.
Counsel for the respondent, Mr Robertson, attempted to explain the existence of the two disparate reports by drawing attention to the fact that there were two distinct claim numbers in relation to the claims made by Mr McCarthy and that, as put by Mr Robertson, “what’s happened is that because two claim numbers were generated the system generated two requests for reports”. It was Mr Robertson’s argument that the two reports need to be read together. It was accepted by Mr Robertson that report R “deals with specifically the allegation of the incident involving the releasing of the computer – I think my friend referred to it as the computer charges”.
Counsel for the respondent explicitly argued that the Senior Arbitrator’s Reasons should not be taken to have the meaning that the computer related charges gave rise to the incapacity (at T17).
Both counsel were invited to make submissions as to what procedure should be adopted in the event that a conclusion is reached on appeal that the Senior Arbitrator appeared to have implicated the 2013 charges with respect to causation of incapacity. Mr Robertson argued that the appeal “should just simply proceed in the usual way”, that is that the matter be determined on this appeal. Counsel then took the opportunity to revisit his argument as to the likely meaning of the wordage adopted by the Senior Arbitrator. The point was made in argument that there was a difference between a finding that Mr McCarthy “did not suffer any incapacity until after the charges relating to the computer had been laid” and a finding that such charges were causative of incapacity.
It was accepted by the respondent’s counsel, during exchanges recorded at T21, that the only report referred to by the Senior Arbitrator and by counsel during addresses before her was report A.
In reply, counsel for Mr McCarthy argued that the “overall view of Dr Roberts” was that “the cause for this man’s psychiatric condition is what happened, the events that happened at the Howlong Hotel [the assault] and the subsequent police investigation and charge or charges that were laid against him”. Counsel proceeded to argue that the events that occurred during the hotel brawl were themselves “a significant cause of [Mr McCarthy’s] problems”. Counsel noted that Dr Roberts was of the opinion that such was causative and that other events which occurred in the course of Mr McCarthy’s employment were not, in Dr Roberts’ view, causative of an emotional and enduring response. It was emphasised that the event, being the pub brawl, had nothing “to do with reasonable action”. At that point Mr Robertson submitted that such an argument had not been argued before the Senior Arbitrator (at T27).
Mr McCarthy’s counsel submitted that, should the Senior Arbitrator’s award require revocation, the preferred approach would be that an award be made on appeal in Mr McCarthy’s favour. In the alternative, should error be made out and a further determination be required, the matter should be remitted to be reheard by “another Arbitrator”. It was suggested in argument that the Senior Arbitrator had “formed a view about [Mr McCarthy’s] credibility”. It was upon this basis that it was argued that “no further determination should be made by [the Senior Arbitrator] under any circumstances…” (at T28).
Further submissions from the respondent were permitted at which time it was put, again, that no argument had been advanced before the Senior Arbitrator which suggested that the pub brawl “had nothing to do with s 11A”. Counsel further argued that the matter was not one that “evolved on credit”. Counsel suggested that it would be appropriate to deal with any redetermination found to be necessary on this appeal, and in the alternative, the matter should be referred back to the Senior Arbitrator to permit further submissions in relation to the evidence of Dr Roberts.

Submissions as to grounds B and C

Mr McCarthy makes no substantive submission in support of ground B. The submissions merely record that Mr McCarthy was paid weekly compensation in respect of incapacity from 30 August 2013 to 28 April 2014. The conflicting evidence as to the date of making of charges arising out of the computer access is noted (at p 11 of submissions).
The respondent in submissions concerning ground B makes reference to aspects of the evidence. The respondent says there is no relevant error demonstrated.
So far as ground C is concerned, Mr McCarthy submits that there was no evidence that incapacity arose from an adjustment disorder arising from the criminal charges concerning computer access. The respondent’s submissions place reliance upon the content of report A which had been prepared by Dr Roberts.

Consideration of matters raised in supplementary submissions and those submissions put in support of grounds B and C

It may be seen from the supplementary submissions that were put by the parties at the telephone conference that the controversy as to whether error had been committed by the Senior Arbitrator is dependent upon the true meaning of the Senior Arbitrator’s words found in the last sentence of [87] which I have noted at [56] above. Those words are:
“The incapacity arose from the Adjustment Disorder arising from the criminal charges.”
The fundamental argument put on behalf of Mr McCarthy is that the Senior Arbitrator had determined that the computer related charges were causative, in part, of an adjustment disorder. Two factual errors are asserted being firstly that the Senior Arbitrator erred in relation to her determination of the appropriate diagnosis and secondly error had been committed as to the causative role of the computer related charges.
The respondent argued that the Senior Arbitrator’s decision should not be taken to have implicated the computer related charges as being causative of injury or incapacity. In such circumstances the Senior Arbitrator’s conclusion must be taken to have involved a finding as to diagnosis in accordance with Dr Roberts’ view and that such condition resulted from the 2012 assault charges.
It may be seen that the parties differ as to the meaning of the words used by the Senior Arbitrator noted above at [73]. I am of the view, as expressed during the course of the telephone conference, that the words of the Senior Arbitrator as just quoted are ambiguous. That ambiguity arises simply because the use of the term “charges” may be taken to refer exclusively to the 2012 assault charges or may be taken to refer to the totality of the charges including the computer related matters. This analysis of the Senior Arbitrator’s reasoning, and her failure to take account of the totality of Dr Roberts’ evidence, in my view, demonstrates relevant error.
I am of the opinion that by reason of that error, as was revealed during the course of submissions at the telephone conference, the Senior Arbitrator’s decision should be revoked on this appeal. I accept Mr McCarthy’s argument, and his reliance upon the decision of Fitzgibbon, that the omission to refer to the totality of Dr Roberts’ evidence constitutes error of law. The error, which is a constructive error given the circumstances, has affected the Senior Arbitrator’s decision given her express acceptance of the evidence of Dr Roberts which, it is now clear, was limited to that as expressed by that witness in report A. Revocation has the inevitable consequence that the factual findings complained of are expunged. The question as to the future conduct of these proceedings is addressed below.

Ground D

Should I be in error in concluding as stated immediately above, it is appropriate that the fourth and final ground relied upon, ground D, be considered on this appeal. It is asserted that the Senior Arbitrator erred in law in failing to determine the cause of Mr McCarthy’s incapacity on and from 29 April 2014. It is also alleged in that ground that the Senior Arbitrator had failed to evaluate all relevant evidence.
Dealing firstly with the complaint concerning suggested failure to determine the cause of incapacity on and from 29 April 2014, I consider that Mr McCarthy has failed to acknowledge the Senior Arbitrator’s determination that the defence raised pursuant to s 11A should be upheld. In the circumstances, as is provided by that section, no compensation is payable in respect of incapacity resulting from the subject psychological injury. It was, thus, unnecessary for the Senior Arbitrator to further consider the question of incapacity. Subject to the matters earlier determined on this appeal, in the absence of there being factual error established (grounds B and C) this complaint could not be made out.
As to the complaint concerning the Senior Arbitrator’s suggested failure to evaluate all the evidence relevant to this ground, it is clear that the evidence of Dr Kim had been considered by the Senior Arbitrator (at [60] and [61] of Reasons). Significantly, in my view, the Senior Arbitrator made reference, also, to evidence not referred to by the parties. That evidence concerned Mr McCarthy’s email which had been sent to Dr Kim in December 2013 (at [65] of Reasons). It, in my view, may reasonably be inferred that reference by her to that email had relevance to her evaluation of Dr Kim’s evidence.
The Senior Arbitrator’s reasoning demonstrates that the diagnosis of post-traumatic stress disorder expressed by Dr Kim in his medical certificates and as expressed by other expert witnesses was rejected. Those other witnesses include Dr Westmore and Mr Richard Brown. The Senior Arbitrator recorded both the evidence of those expert witnesses, and relevant submissions put on behalf of Mr McCarthy, between [19] and [28] of Reasons. The argument, founded upon statements made by Hayne J in Fitzgibbon, which asserts error of law in failing to take into account evidence relevant to this ground must be rejected. Ground D fails.

DECISION

As stated above, at [77], the Senior Arbitrator’s decision must be revoked. An appropriate order appears below.
The question remains as to what order is appropriate concerning future conduct of the proceedings. Section 352(7) provides:
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Having regard to all the circumstances and, in particular, the constructive nature of the error committed by the Senior Arbitrator, I consider that it is more appropriate that the matter be referred back to the Senior Arbitrator for further argument and redetermination rather than that there be a new decision made on this appeal. Such an order appears below. In reaching that conclusion I have considered, and reject, Mr McCarthy’s assertion in submissions that the Senior Arbitrator had reached a view as to his credit.

ORDERS

The finding and award found in [1] and [2] of the Certificate of Determination dated 22 July 2015 are revoked.
The matter is remitted to Senior Arbitrator McDonald for redetermination.

Kevin O'Grady
Deputy President

13 November 2015

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

ASSOCIATE