Murphy v Westpac Banking Corporation - [2024] NSWPICPD 31

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Murphy v Westpac Banking Corporation [2024] NSWPICPD 31
APPELLANT:	Natalie Murphy
RESPONDENT:	Westpac Banking Corporation
INSURER:	Self-insured
FILE NUMBER:	A1-W654/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	24 May 2024
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Member’s Award is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 – application for an extension of time – reliance of worker on contemporaneous diary entries with respect to “bullying” by supervisor – whether the worker suffered a compensable injury of the type diagnosed by the medical practitioners upon which the worker relied – absence of contemporaneous medical notes by medical practitioners
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Turner Freeman Lawyers
Respondent:
Mr G Barter, counsel
HWL Ebsworth Lawyers
DECISION UNDER APPEAL:	Murphy v Westpac Banking Corporation [2023] NSWPIC 296
MEMBER:	Mr C Wood
DATE OF MEMBER’S DECISION:	23 June 2023

INTRODUCTION

The appeal is from a Certificate of Determination dated 23 June 2023.
Ms Natalie Murphy, the appellant, alleged that in the course of her employment with Westpac Banking Corporation, the respondent, she sustained a psychological condition as a result of the nature and conditions of her employment (bullying, harassment, and lack of support) with a deemed date of injury 26 January 2018. The respondent denied injury.
The claim before the Personal Injury Commission (Commission), in the Workers Compensation Division, was for lump sum whole person impairment by reason of psychological injury, and medical expenses.
At a preliminary conference on 7 March 2023 before Member Perrignon, an application to add a claim for weekly compensation benefits, which was not opposed by the respondent, was nevertheless declined.
The matter was then heard by Member Wood, who determined:
“1. The [appellant] did not suffer from a psychological injury arising out of her employment (s 4 (a)) Workers Compensation Act1987).
2. Accordingly there is an award for the respondent.”
The appeal was lodged out of time. The respondent opposes the time to appeal being extended and opposes the relief sought by the appellant.
For the reasons that follow, I extend the time specified in s 352(4)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the bringing of the appeal and dismiss the appeal.
The Certificate of Determination of the Member dated 23 June 2023 is confirmed.

THE MEMBER’S STATEMENT OF REASONS

The relevant interactions with the appellant’s supervisor occurred in 2018.
The following matters are uncontroversial:
(a)    The appellant and her husband moved to Oberon, New South Wales, in 2014 and she continued to pursue her role as a customer service representative working remotely, reporting to management via the Epping branch of the respondent.
(b)    In about 2017 or 2018 the managerial reporting lines were changed to be through the Kogarah branch, as the Epping branch had closed.
(c)    Between 2017 and throughout 2018 the appellant reported to a supervisor whom she identified as Jacqueline.
(d)    The appellant found the interactions with Jacqueline to be “bullying” and undermining such that she felt threatened. She felt unsupported.
(e)    In December 2018 the appellant was diagnosed with breast cancer. She was absent from employment between January 2019 and August 2021 whilst she underwent treatment.
(f)    The appellant returned to work and experienced “flashbacks” about her dealings with Jacqueline.
(g)    By the time the appellant returned to work following her treatment for breast cancer, Jacqueline had left the respondent’s employment.
(h)    A formal claim for compensation was made in December 2021.
In 2018 the appellant sought legal advice, and advice from her trade union. Apart from one interaction with the respondent’s HR department, the appellant did not otherwise report the matters which concerned her to the respondent’s management. “She [did] not specify to whom she spoke or the advice given (by HR).”[1]
[1] Murphy v Westpac Banking Corporation [2023] NSWPIC 296 (reasons), [23].
The appellant’s evidence was given by statement. In addition, there was evidence described as “diary notes” documenting the interactions between her and the supervisor Jacqueline.
The Member said:
“The [appellant] outlines various interactions with Jacqueline which she found demeaning and inappropriate. I will not recite these seriatim, but they commenced at apparently on or about 26 February 2018. The [appellant] relies on what she calls diary notes to ground these interactions in time. I refer to the diary notes below as they are important in considering the merits of the [appellant’s] claim overall.”[2]
[2] Reasons, [20].
The Member noted there was an inconsistency as to when the appellant was diagnosed with breast cancer. In paragraph [25] of the appellant’s statement dated 20 January 2023[3] she says she sought advice of a solicitor on 16 July 2018 but was hesitant to pursue a workers compensation claim because she was concerned that she would lose her employment. The appellant said that at about this time she was diagnosed with cancer and was focused on getting treatment. However, later in the statement, she says she was diagnosed with breast cancer in December of 2018 and stopped working in January of 2019.
[3] Application to Resolve a Dispute (ARD), pp 1–6.
The Member says:
“In any event, having said that the negative treatment by Jacqueline continued from mid 2018 until she was diagnosed, the [appellant] was then understandably absent from her employment while she underwent treatment for breast cancer.
The [appellant] says that upon remission she was eager to return to her employment with the respondent which recommenced with her working from home in August 2021. She says on her return to work she began having ‘instant flashbacks’ of Jacqueline and felt scrutinised and inept. She could not undertake her work involving client phone calls and would ‘go blank’. She became easily ‘triggered’.”[4]
[4] Reasons, [28]–[29].
The appellant worked for two weeks, ceasing work on 9 November 2021. The Member noted that it was at this time the appellant “for the first time sought medical assistance for what she describes as stress and anxiety. Her general practitioner in Mudgee was Dr Ayngkaran [Sivakamy] who has provided a medical report and certificates of incapacity.”[5]
[5] Reasons, [30].
The appellant was referred to a psychiatrist, Dr Sivaruban.
The diary notes are of significance in the appeal. The Member said:
“I have referred above to the [appellant’s] reliance upon her diary notes and as these are also referred to in the submissions of the parties; they warrant careful consideration.
There are in fact two sets of what might loosely be termed ‘diary notes’ but it is those referred to as annexure A to her statement which the [appellant] calls upon in submissions in support of her claim. In addition to appearing as an annexure to her statement, the ‘diary notes’ appear in greater detail (more pages) later in the supporting material to the ARD. The first page of the diary notes is headed up with the words ‘Natalie Murphy 21-01-22’. While these pages are referred to as diary notes they appear to be more accurately described as a diary summary and I propose to refer to those pages from this point by that description (diary summary).
Copies of the pages of what is clearly a week-by-week diary for 2018 also form part of the ARD. It is these pages which are more accurately described as the [appellant’s] diary from which she has produced the summary referred to above (the diary).
The diary summary sets out various interactions with Jacqueline which are, at least in part, capable of being verified by shorthand notes in the diary. The diary entries are broadly consistent with the [appellant’s] statement in that they at least support her various interactions with Jacqueline in the first half of 2018.”[6]
[6] Reasons, [32]–[35].
The Member set out the medical evidence from the appellant at length. He noted that the general practitioner, Dr Sivakamy, recorded that the appellant first reported feeling anxious on resuming her duties to her predecessor in 2019. The doctor recorded that medication and psychological therapy was suggested. The Member recorded that the Doctor noted that the appellant’s psychological injuries and anxiety symptoms “apparently got worse when she was diagnosed with cancer.”[7]
[7] Reasons, [41].
The general practitioner recorded that in September 2021 the appellant started back at work but her symptoms grew worse and in October 2021 the appellant had consulted her regarding symptoms “mostly PTSD symptoms related to her previous work experience.”[8] The general practitioner provided the appellant with certificates for unfitness for employment as at 1 August 2022.
[8] Reasons, [41].
Dr Sivaruban, the psychiatrist to whom the appellant was referred by the general practitioner, reported on 13 October 2021 in a letter to Dr Sivakamy. The diagnosis was “chronic adjustment disorder with depressed mood and anxiety”.
The Member recorded the evidence of Dr Mavaddat, a GP psychotherapist. The history taken by this doctor was broadly consistent with that given by the appellant to the other practitioners. Essentially there were stressful interactions with her supervisor/team leader. Dr Mavaddat’s notes dated 18 May 2022 record that the appellant “may have seen a psychologist during 2018 ‘but did not have any psychology therapy at that time and did not discuss widely with HR but what she did say to HR was not helpful.’”[9] Dr Mavaddat’s diagnosis was adjustment disorder/anxiety and stress secondary to workplace bullying.
[9] Reasons, [50].
The appellant was examined by Dr Rastogi, consultant psychiatrist, at the request of her solicitor. The Member summarised Dr Rastogi’s conclusions as follows:
“Dr Rastogi concludes that the [appellant] has suffered a work-related incapacity and this is a consequence of ‘belittled dismissive attitude, lack of support, threats of losing her job, being undermined constantly, not supported through training and micromanaged since 2018 last reported to Jacqueline’.
As Dr Rastogi has noted, she had the benefit of numerous medical reports and was asked to respond to some 21 questions from the [appellant’s] solicitor. The questions and letter of instruction do not appear in the material before the Commission.
Dr Rastogi’s diagnosis and opinion is that the [appellant] has a chronic adjustment disorder and anxiety.”[10]
[10] Reasons, [56]–[58].
The Member noted that Dr Rastogi “refers to both the [appellant’s] statement attached to the ARD and a supplementary statement dated 30 April 2021. This later document is not in the material before the Commission. There is also reference to numerous other medical reports which [are] similarly not before the Commission.”[11]
[11] Reasons, [54].
The respondent’s evidence comprised lay evidence from Mr Chami who was higher up the respondent’s line of management than Jacqueline. Mr Chami’s evidence was that:
“… it appears the [appellant’s] complaints in relation to her workplace experience refer to the time that Jacqueline was her supervisor but says there were never any communications by either of those parties in relation to interpersonal conflict.
…
Mr Chami was not aware of any interpersonal conflict or any action that was taken that might be considered unreasonable. He said that if there was any issue in terms of workplace conflict it would have come through to him as a matter of grievance or performance management.”[12]
[12] Reasons, [64], [67].
The respondent’s medical evidence comprised a series of reports from Dr Roberts, medico-legal psychiatrist. Dr Roberts’ conclusion was that there was no evidence of mental illness. He recorded that the appellant was fit to undertake work but had no plans to do so. The Member noted that Dr Roberts concluded “that the [appellant’s] decision not to return to work with the respondent is based on choice, not psychopathology.”[13]
[13] Reasons, [81].
The Member records:
“Dr Roberts says there is ‘no symptom pathology of heightened anxiety or inappropriate degree’. He rejects Dr Rastogi’s diagnosis of a chronic adjustment disorder with anxiety and says that he could only assume that the [appellant’s] presentation to Dr Rastogi was different to her presentation to him. Ultimately Dr Roberts maintains his opinion that the [appellant] does not have a recognisable psychological injury and that she was fit to undertake gainful employment. In so concluding he notes that treatment has been minimal such that that undertaken could not be stated to be a treatment program.”[14]
[14] Reasons, [84].
After noting the parties’ submissions the Member expressed his findings and reasons.
He noted that the documentation before the Commission was incomplete in terms of references to material made available to the doctors on both sides.[15] He said that experienced counsel took no objection to reliance on the documents before the Commission and he therefore rejected any submission that some material ought not be considered.[16]
[15] Reasons, [104].
[16] Reasons, [107].
The Member accepted that he should not attach great weight to the diary entries for the following reasons:
“There are both the diary and there is the diary summary which I have identified and defined above. It is the latter which forms part of the annexures to the [appellant’s] statement. The diary summary also appears later [in] the evidence brief supporting the ARD and are more extensive than the annexures to the statement. The summary is headed with the words ‘Natalie Murphy 21-01-2022’ and as I have noted above this is seemingly drawn from the diary which appears as one week per two pages throughout 2018. I am satisfied the summary document was created after the original diary entries, and it would not be unreasonable to infer they were created by the [appellant] on 21 January 2022 after she had been advised by the respondent her claim for workers compensation benefits had been rejected following her return to work. As submitted by the respondent, I agree the weight given to them should not be unduly great.”[17]
[17] Reasons, [109].
The diary entries, that were one week by two pages, were specifically dealt with by the Member:
“There is no doubt these constitute some contemporaneous record of events which brought the [appellant] into some conflict with Jacqueline and the [appellant] now contends caused her anxiety. This had allegedly got to the point where the [appellant] engaged with the respondent’s HR department, approached her union and sought legal advice. She says going to HR did not improve her situation. Those interactions are what Mr Chami says, at least in the case of the HR department, he would have expected to occur but the respondent has no record of them. Mr Chami is referred to it seems by the [appellant] when she notes she had a good relationship with her more senior supervisor. Despite escalating the matter to HR, her trade union and seeking legal advice, the [appellant] did not consult with a medical practitioner regarding the anxieties or other responses she may have suffered from through interactions with Jacqueline. She was able to keep working.
I have been able to identify a few recorded interactions with Jacqueline after the middle of 2018 in the diary and in the absence of time away from work being recorded or in fact asserted by the [appellant] it seems to the extent she continued to have negative encounters with Jacqueline she pressed on finally ceasing work after being diagnosed with breast cancer in December 2018. Her diagnosis of breast cancer was what the respondent says it understood to be the reason the [appellant] ceased work.”[18]
[18] Reasons, [112]–[113].
After setting out the statutory definition of “Injury” the Member directed himself as to the applicable principle as follows:
“I am to have regard to both the events and the pathology arising from the events in determining whether the [appellant] has suffered a compensable injury of the type diagnosed by the medical practitioners upon which she relies.”[19]
[19] Reasons, [116].
The Member said that “[d]espite what is now presented as events having a significant impact on her psychological health the [appellant] did not see a doctor nor escalate issues with the respondent despite apparently taking advice from her trade union and her solicitor.”
The Member finds that “[t]he (contemporaneous) diary notes do no more than corroborate certain interactions with Jacqueline.”[20]
[20] Reasons, [120].
He says in relation to the diary summary:
“While I do not find it to be so, one conclusion available is that the [appellant’s] diary summary bearing a heading with a date after her claim for compensation was initially rejected, is a [sic] self-serving.”[21]
[21] Reasons, [121].
The Member’s ultimate conclusion is found in the following passages:
“All of the medical practitioners relied upon by each side are dependent upon the reliability of the history given to them by the [appellant]. In the absence of contemporaneous medical evidence and compelling diary entries (rather than a later summary) and/or supporting lay evidence I cannot be satisfied on balance that the [appellant’s] reaction to any interactions with Jacqueline which may have occurred, were sufficiently significant to have generated or substantially contributed to a personal injury of a psychological nature for which compensation is payable. It would have been a very simple [matter] for the [appellant] to expand on or particularise the steps she says she took in mid-2018 by identifying to whom she spoke to in HR, at her union or the firm of solicitors from which she took advice. Evidence from her husband or other family member or friend may have assisted. Any retrospective diagnosis of a recognised psychological condition for which the [appellant] contends based on the history provided is in all the circumstances problematic.
I accept the respondent was unable to identify any relevant interaction between its HR department and the [appellant]. I also accept that the [appellant] as a longstanding employee was familiar with the respondent’s internal procedures to escalate any matters of concern to her.
With the [appellant’s] evidence being limited to her statement, diary and diary summary I am not satisfied on balance that the matters complained of caused the [appellant] the level of stress and anxiety she asserts to the point she suffered an injury or the pathology arising from it for the purpose of s 4 of the 1987 Act. The [appellant] has not discharged her onus of proof.”[22]
[22] Reasons, [122]–[124], citing Nguyen v Cosmopolitan Homes [2008] NSWCA 246; Lyons v Master Builders Assoc (2003) 25 NSWCCR 442.
The Member entered an award for the respondent. He was not required to deal with ss 9 and/or 11A.

PROCEDURAL MATTERS

Time

The appeal was brought out of time contrary to s 352(4)(a) of the 1998 Act. The last day for lodging the Appeal was Friday 21 July 2023 whereas the appeal was lodged on Monday 24 July 2023. The respondent has objected to the appeal proceeding on the ground that the explanation given for the late filing is inadequate.
The explanation offered by the appellant was that counsel was overseas at the time the decision was published and that both he and the appellant’s solicitor mis-diarised the due date for the appeal. The appellant asserts there is no prejudice to the respondent if an extension of one day was allowed.
Subsequently the appellant filed detailed submissions in support of the application to extend time. There were no further submissions from the respondent.

The decision appealed against was made on Friday 23 June 2023 and the appeal filed on Monday 24 July 2023. That is said to be the first business day after the expiration of the appeal period but 2 calendar days after the correct date for lodging the appeal.
Rule 133A(4) of the Personal Injury Commission Rules 2021 (Commission Rules) permits the decision-maker to make an order extending time for the purpose of s 352(4)(a) in the circumstances contemplated by r 133A(5):
“The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.”
The appellant in her submissions refers to Lazio Formwork Pty Limited v Kelly; Kelly v Lazio Formwork Pty Limited[23] citing Snell DP who in turn quoted Bryce v Department of Corrective Services[24] to the effect that “‘exceptional circumstances’ is a matter to be considered on the application to extend time but is not a precondition to the application succeeding.”
[23] [2023] NSWPICPD 40, [72].
[24] [2009] NSWCA 188.
In addition, the appellant cites Rockhard Products Pty Ltd v Economidis[25] which in turn cites Gallo v Dawson[26] and the well-known passage from McHugh J that the discretion to extend time is for the sole purpose of enabling a Court to do justice between the parties and that the respondent had a vested right to retain the judgment.
[25] [2009] NSWWCCPD 159.
[26] [1990] HCA 30.
The appellant submits:
“Applying those principles the explanation is reasonable and is due to no fault of the appellant herself.
The delay is only one business day.
The consequence of not granting the extension is to extinguish the Appellant’s right to compensation.
There is no prejudice to the Respondent with respect to its ability to meet the appeal. The Respondent has already filed submissions in reply.
For the reasons set out in the primary submissions the appeal has good prospects of success.”[27]
[27] Appellant’s submissions 18 September 2023, [10]–[14].
In this rule the presence of “exceptional circumstances” is not condition precedent to the extension of time. In this regard the rule is in contrast to the UCPR 31.8(4)(c) considered by the Court of Appeal in Yacoub v Pilikington (Australia) Pty Limited.[28]
[28] [2007] NSWCA 290.
The imposition of time limits for the lodging of an appeal is intended to promote forensic diligence in achieving finality so that the parties’ dispute is brought to an end.
But time imposts must be considered in the statutory context having regard to the purpose of the scheme overall. Without intending to be comprehensive, the statutory context involves at least:
(a) firstly, the Commission is not a jurisdiction of strict pleading and the guiding principle for Personal Injury Commission Act 2020 (the 2020 Act) and Commission Rules in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings,[29] and
(b) secondly the requirement that the Commission “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”[30]
[29] Section 42 of the 2020 Act.
[30] Section 43 of the 2020 Act.
Rule 133A(5) mandates that the decision-maker be satisfied that if the extension is not granted and the appellant loses the right of appeal, the application of the time limitation “would work demonstrable and substantial injustice.”
It is the right to appeal that is lost not the outcome of the appeal. Therefore while the merit and prospects of success on appeal are undoubtedly matters to be considered in the sense that time would not be extended to bring an entirely unmeritorious appeal out of time, the mere fact that the appeal does not ultimately succeed is not a sufficient basis to refuse the extension.
Although in the event I have come to the conclusion that the appeal should be dismissed, in my view, it would be a grave injustice to the appellant for her not to be able to agitate the appeal in circumstances of a comparatively minor failure on the part of her legal representatives to meet the expected timetable by reason of matters not in any way connected with fault on her behalf.
An extension of time in this matter impugns the essential principle of “just, quick and cost effective” resolution to a minor extent. To refuse the extension offends the requirement that the Commission proceed on the substantial merits of the case without regard to technicalities and legal form. It would work “demonstrable and substantial injustice” to the appellant.
In the circumstances, I extend the time to bring the application to 24 July 2023.

The amount in dispute

The parties are in agreement that the amount in question exceeds the monetary threshold.

On the papers

The parties have agreed that the matter is capable of being determined without resort to an oral hearing. I agree and propose to dispose of the appeal on this basis.

NATURE OF THE APPEAL

The jurisdiction exercised by me under s 352(5) of the 1998 Act is as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or a new hearing.”

GROUNDS OF APPEAL

The appellant seeks to agitate three grounds of appeal, namely:
Ground 1: The Member erred when he found that the diary notes were not contemporaneous when he had the contemporaneous notes before him and it was only the summary that was prepared later.
Ground 2: The Member erred when he purported to find that there was no causal connection with injury without first finding if there was a psychological condition.
Ground 3: The Member erred when he failed to consider that the appellant’s claim was that the injury did not manifest itself until August 2021 and not in 2018.

Appellant’s submissions Ground 1

The appellant submits that there are two sets of diary notes, the summary and the actual diary notes.
The appellant says this:
“At [109] the Member found that the weight given to the summary should not be unduly great. Then at [122] he gives a reason for declining the claim as a lack of compelling diary entries rather than a later summary. In approaching the matter that way he failed to appreciate that [the] diary entries, as opposed to the summary, were contemporaneous.
If he had properly considered the evidence he would have found a contemporaneous record of the interactions with Jacqueline.”[31]
[31] Appellant’s submissions, [17]–[18].
The appellant makes the point that the Member did not make an adverse credit finding against the appellant. The appellant complains that the Member failed to consider the evidence or give reasons for not accepting her essentially unchallenged evidence about her interactions with Jacqueline. He pointed to no evidence to contradict that of the appellant.

Respondent’s submissions Ground 1

The respondent submits that the Member did not find that the diary notes were not contemporaneous.
The respondent points out that at paragraphs [33] and [34] of the reasons the Member correctly identifies that there were two sets of documents, the diary summary and the diary. At paragraph [35] the Member expresses the opinion that the diary was broadly corroborative. Then at paragraphs [109] to [112] the Member “reprises the distinction between ‘the diary’ and the ‘diary summary’, noting that the ‘diary summary’ was not contemporaneous but ‘the diary’ was. ‘There is no doubt these constitute some contemporaneous record of events …’.”[32]
[32] Respondent’s submissions, [13]–[16].
The respondent’s submission is:
“The Member correctly came to the conclusion that, if the Appellant was suffering stress, as recorded in the contemporaneous notes, the stress was insufficient to result in psychological injury.”[33]
[33] Respondent’s submissions, [17].

Consideration

The Member considered at length the diary summary and the diary notes. At paragraph [35] he expressly accepted that the diary entries were broadly consistent with the appellant’s statement in that “they at least support her various interactions with Jacqueline in the first half of 2018.”
At paragraph [108] he notes that the appellant relies on her diary entries. As part of the reasoning process he accepts at paragraph [109] that the diary summary was created after the workers compensation claim had been rejected and he accepts the submission of the respondent that the weight to be given to the summary documents was not unduly great.
However, at [112] the Member notes that the diary entries provide a contemporaneous record of events. Importantly the Member says:
“Despite escalating the matter to HR, her trade union and seeking legal advice, the [appellant] did not consult with a medical practitioner regarding the anxieties or other responses she may have suffered from through interactions with Jacqueline. She was able to keep working.”
At [120] the Member refers to the contemporaneous diaries as doing no more than “corroborating” certain interactions with Jacqueline.
There is much more in paragraph [122] than a reference to the diary entries. The Member says:
“In the absence of contemporaneous medical evidence and compelling diary entries (rather than a later summary) and/or supporting lay evidence I cannot be satisfied on balance that the [appellant’s] reaction to any interactions with Jacqueline which may have occurred, were sufficiently significant to have generated or substantially contributed to a personal injury of a psychological nature for which compensation is payable.” (emphasis added)
The Member recognised that the diary entries were contemporaneous even though the diary summary was not but his ultimate conclusion and finding did not depend solely on the issue of the contemporaneous diary entries. The Member did have regard to the diary entries as presenting contemporaneous notes of the interaction between the appellant and Jacqueline. But these were not enough in the absence of contemporaneous medical evidence to persuade him that the appellant sustained psychological injury as a result of the interaction with her supervisor.
The appellant has not demonstrated error on the part of the Member in his assessment of the evidence with respect to the diary entries and the diary summary.
Ground 1 of the appeal is rejected and dismissed.

Appellant’s submissions Ground 2

The appellant submits that the dispute notice issued pursuant to s 78 of the 1998 Act (s 78 notice) raised an issue as to whether a psychological condition that could constitute an injury was established. The Member referred to the evidence about diagnosis but did not at any time “engage with the evidence” and reach a conclusion about whether the appellant had suffered a psychological condition, what that condition was and when did it first manifest itself.
The appellant’s submission is:
“Without reaching a conclusion on those matters the Member could not engage in a deliberation about the cause of the condition. It was of particular importance to decide what the condition was and when it manifested when [weighing] up the evidence about what the Appellant was experiencing in 2018 and 2019. Obviously if the Appellant’s doctors were accepted then the injury was one that only had its onset in 2021 although caused by the earlier events. A consideration of that matter would almost inevitably lead to a different conclusion.”[34]
[34] Appellant’s submissions, [22].

Respondent’s submissions Ground 2

The respondent submits that it was common ground that the appellant was suffering from a stress reaction in 2021, but the respondent disputed the reaction was consistent with a diagnosable psychological condition.
Some of the medical practitioners thought the appellant was suffering a diagnosable psychological injury but Dr Roberts was not of that opinion. There was no contemporaneous evidence in 2018 and 2019 to suggest that at that time the appellant was suffering from any work-related psychological condition.
The respondent submits:
“The issue agitated at the hearing and in the written submissions was whether or not the condition from which the Appellant was suffering in 2021, whatever it may be, resulted from the adverse working conditions to which the Appellant claimed she was exposed in 2018.”[35]
[35] Respondent’s submissions, [21].
The respondent submits:
“Unless there is medical evidence to suggest that the intrinsic nature of the appellant’s condition, chronic adjustment disorder with anxiety in the opinion of Dr Rastogi, is such that it has a specific albeit delayed gestation period such as mesothelioma, there would not appear to be any reason to identify the nature of the condition in order to establish the sort of causal connection reasoning set out in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 per Kirby P at 463–464.
The conclusion submitted by the Respondent and properly drawn by the Member was that the Appellant was unable to meet the onus of proving that the condition from which she suffered in 2021 resulted from the stress she says she suffered in 2018.”[36]
[36] Respondent’s submissions, [23]–[24].

Consideration

The Member set out at length the medical evidence available to the parties. He reasoned at [122] that the conclusions of the medical practitioners relied upon by the parties were “dependent upon the reliability of the history given to them by the [appellant].” From that proposition he concluded that the “absence of contemporaneous medical evidence” among other matters was against the appellant’s reaction to the interaction with the supervisor Jacqueline having “generated or substantially contributed to” her psychological injury.
The Member was careful to make clear in [124] that he was “not satisfied” that the matters complained of caused the appellant’s injury or pathology “for the purpose of s 4 of the 1987 Act”. In other words, the Member’s approach was that the history which he accepted as having occurred in 2018 was not sufficient to support the diagnostic opinions relied upon by the appellant.
The point is made clear by the Member at paragraph [114]:
“The [appellant’s] medical evidence diagnosing a chronic adjustment disorder, depressed mood with anxiety referrable to the [appellant’s] employment in 2018 hinges on the reliability of her history concerning the impact of her interactions with Jacqueline at the time.” (emphasis added)
The Member was not satisfied “in the absence of contemporaneous medical evidence and compelling diary entries … and/or supporting lay evidence” that the material was sufficient to support the diagnosis provided by the medical professionals relied on by the appellant. His conclusion in that regard was supported by the evidence of Dr Roberts at page 32 of his report.[37]
[37] Page 38 of 82 of the Reply to Application to Resolve a Dispute, incorrectly footnoted by the Member at footnote 51 of the reasons as page 32 of the Reply. (It is noted the Reply was filed under cover of an Application to Admit Late Documents and is therefore referred to by the Member as AALD).
The Member quotes Dr Roberts with respect to the specific questions from the appellant’s (sic, respondent’s) solicitor. The passage appears at page 32 of the report (p 38 of the Reply) under the heading “Specific Questions”:
“I have obtained a history from the [appellant] including details of her alleged psychological injury, related treatment and recreational activities.
·        I have documented the [appellant’s] current complaints and note that her complaint of breast cancer is a potent stressor.
·        I note that the level of psychological symptoms is minor.
·        I would consider that the development of breast cancer is a substantial stressor and would on reasonable psychiatric grounds be a far greater stressor than any interpersonal interaction with her superior Jacqueline.
·        I have commented on the [appellant’s] future plans to undertake commercial activities. In this context I would consider that [the appellant] is capable of undertaking gainful employment if she chooses not to return to work at the bank, that is the result of preference not pathology.
In summary therefore I do not consider the [appellant’s] diagnosis is in accordance with the DSM5 in terms of the development of a mental condition. I would accept that she was understandably distressed by the diagnosis of breast cancer and was suffering from a normative stress reaction.”
The Member did not accept that the opinion of the appellant’s doctors that the psychopathology they diagnosed could be accepted on the basis of the history and medical evidence which he accepted.
The Member was not persuaded that the events of 2018 caused the appellant to suffer psychological injury. This he says expressly at [124]:
“With the [appellant’s] evidence being limited to her statement, diary and diary summary I am not satisfied on balance that the matters complained of caused the [appellant] the level of stress and anxiety she asserts to the point she suffered an injury or the pathology arising from it for the purpose of s 4 of the 1987 Act. The [appellant] has not discharged her onus of proof.”
That conclusion was open to the Member and no error has been demonstrated.
Ground 2 of the appeal is rejected.

Appellant’s submissions Ground 3

The appellant says that because the Member did not determine the injury or when it manifested itself, he only concentrated on the evidence about the extent of the appellant’s distress in 2018 and 2019. “The Appellant’s case was that the injury manifested when she returned to work in August 2021. There was no consideration of her symptoms at that time. The doctors were making contemporaneous records at that time.”[38]
[38] Appellant’s submissions, [24].
The appellant makes the following submission:
“The enquiry being carried out by the doctors was to find the cause of those symptoms. The answer was in the events of 2018 and 2019 even though there was no diagnosable condition at that time.”[39] (emphasis added)
[39] Appellant’s submissions, [25].
The appellant submits:
“[T]he history did not support any other cause for the distress on returning to work. The Appellant was in remission from the breast cancer and it could not logically be the cause for the condition and reaction at that time. There was no support from the expert evidence that making a diagnosis was problematic. This was because contrary to the Member’s approach the doctors were not making a retrospective diagnosis but were diagnosing the condition before them.”[40]
[40] Appellant’s submissions, [26].

Respondent’s submissions Ground 3

The respondent submits there is no evidence to suggest the appellant suffered a latent injury in 2018 that did not manifest itself until August 2021. Rather, Dr Rastogi suggests that the events of 2018 established a psychological injury that was “retriggered” by the thought of returning to work.
In the alternative, it was argued that the appellant suffered a diagnosable injury in 2018 to which her employment was at least a contributing factor, that may have been masked by her concerns over breast cancer but which persisted.
The respondent quotes from the appellant’s written submissions before the Member at paragraph [13]:
“The [appellant’s] employment was the main contributing factor to her psychological condition at the time [2018]. The diagnosis was adjustment disorder – anxiety stress secondary to work place bullying.”
The respondent submits:
“There is no medical evidence in support of the proposition that, absent a diagnosable condition in 2018, symptomatology in 2021 could (far less did) result from events that occurred in 2018.”[41] (emphasis in original)
[41] Respondent’s submissions, [29].

Consideration

The Member defined the issue for determination before him as a denial of liability by the respondent in the s 78 notice “on the basis that [the appellant] has not suffered, nor does she suffer, from a psychiatric injury for the purposes of the Workers Compensation Act1987.”[42]
[42] Reasons, [6].

The injury as defined in the ARD was as follows:
“Injury Details – 26/01/2018
Type of Injury: Personal
Date of Injury: 26/01/2018
Place of Injury: Workplace
Injury Description/Cause of Injury and Death:
The [appellant] suffered a psychological condition as a result of the nature and conditions of her employment with a deemed date of injury being 26 January 2018, the [appellant] was involved in interpersonal conflict with management. This led to the [appellant] being subject to harassment, belittlement and lack of support. The [appellant’s] deemed date of injury is 26 January 2018.”
The proposition that the appellant’s case was that the injury manifested when she returned to work in August 2021 is inconsistent with the ARD and in my view inconsistent with the way in which the case was advanced before the Member, both by way of the evidence and submission.
Dr Rastogi’s report and evidence make it plain that a retrospective diagnosis has been provided. The appellant had psychopathology according to Dr Rastogi in 2018, it was “retriggered” when she returned to work in 2021 for a period of two weeks.
Furthermore, the present complaint is contrary to the appellant’s submissions before the Member where she made the following submission:
“The [appellant] does not contend that the events in August 2021 are a new injury. What occurred was the reaction to work as a result of the injury that had been caused in 2018.”[43] (emphasis added)
[43] Appellant’s submissions before the Member, [11].
That submission is not consistent with the appellant’s submission on appeal at paragraph [25] that the events of 2018 and 2019 did not give rise to a diagnosable condition at that time.
The respondent is correct that it was necessary for the appellant to satisfy the Member that she suffered injury in 2018 and she failed to do this.
Ground 3 of the appeal is rejected.

CONCLUSION

The appeal is dismissed.
The Member’s Award is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

24 May 2024