NSW Police Force v Gurnhill - [2014] NSWWCCPD 12

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	NSW Police Force v Gurnhill [2014] NSWWCCPD 12
APPELLANT:	NSW Police Force
RESPONDENT:	Daniel Gurnhill
INSURER:	Employers Mutual Ltd NSW Treasury Managed Fund
FILE NUMBER:	A1-6872/13
ARBITRATOR:	Mr R Foggo
DATE OF ARBITRATOR’S DECISION:	12 December 2013
DATE OF APPEAL DECISION:	11 March 2014
SUBJECT MATTER OF DECISION:	Psychological injury; post-traumatic stress disorder; claim for lump sum compensation; pleadings; exposure to multiple traumatic incidents; personal injury or disease; challenge to Arbitrator’s finding as to nature of injury; whether injury a personal injury or disease contracted in the course of employment or an aggravation of a disease; ss 4(a) and 4(b)(i) and (ii) of the Workers Compensation Act 1987; role of Treasury Managed Fund insurer; thresholds in s 352(3) Workplace Injury Management and Workers Compensation Act 1998; interlocutory orders; issues not argued at arbitration; unsatisfactory presentation of appeal; need to identify grounds of appeal in the Application – Appeal Against Decision of Arbitrator; purpose of submissions in reply on appeal
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry
Respondent:	Harris Wheeler Lawyers
ORDERS MADE ON APPEAL:	1. Subject to amending paragraph 2 of the Certificate of Determination of 12 December 2013, and paragraphs [29] and [31] of the Arbitrator’s Reasons, to delete “11 October 2010” and to insert “11 November 2010” in its place, the Arbitrator’s determination is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

BACKGROUND

The respondent worker, Daniel Gurnhill, joined the NSW Police Force in 2002 and worked in general duties until 2007 when he joined the Tactical Response Unit. Over the course of his career as a police officer, he has been exposed to numerous traumatic incidents involving suicides, homicides, having weapons pointed at him and colleagues, and dangerous “vehicle stops” (deliberate high speed collisions with a high risk of being run over by offenders or other police cars).
In October 2009, Mr Gurnhill attended an incident in Orange when, after protracted negotiations, a man shot and killed himself. Following this incident, Mr Gurnhill started having nightmares and difficulty sleeping. He started hearing the victim’s name everywhere he went and could not get it out of his head. Over time, his condition deteriorated and he had increasing difficulty controlling his aggression.
In the four or five months up to November 2010, things got significantly worse. In or about September 2010, Mr Gurnhill attended a job to apprehend people wanted for murder. During the course of this job, Mr Gurnhill’s car was rammed by the offender’s vehicle, causing Mr Gurnhill to be very anxious and have flashbacks of the October 2009 incident. Later, he saw a similar car to the one used by the victim in Orange and he had a flashback of that incident, which caused him to sweat and tremble. He also has flashbacks at work, especially when he puts his boots on. He started avoiding jobs because he was afraid he might injure or kill someone.
Mr Gurnhill saw his general practitioner, Dr Little, on 11 November 2010 and was certified unfit from that date because of post-traumatic stress disorder (PTSD). The medical certificate issued that day described the injury as having occurred as follows “Suicide – Orange – 2009 – male shot himself with a firearm”, and gave the date of injury as “10/09”.
The Police Force’s insurer, Employers Mutual Ltd, accepted liability for the claim and commenced payments of weekly compensation, which I assume continue. In June 2012, Mr Gurnhill claimed lump sum compensation in the sum of $94,000 made up of $44,000 in respect of a whole person impairment of 25 per cent and $50,000 for pain and suffering. He based this claim on an assessment by Dr Wade, consultant psychiatrist, who assessed him for medicolegal purposes on 24 January 2012.
In a s 74 notice dated 25 September 2012, Employers Mutual disputed liability for the claim on the ground that the claim did not meet the 15 per cent threshold in s 65A(3) of the Workers Compensation Act 1987 (the 1987 Act). The insurer based its position on evidence from Dr Terace, consultant psychiatrist, who had examined Mr Gurnhill on its behalf in August 2012 and concluded that he had only a seven per cent whole person impairment, though he had not reached maximum medical improvement.
In an Application to Resolve a Dispute (the Application), lodged with the Commission on 1 July 2013, Mr Gurnhill claimed lump sum compensation as per his claim of June 2012. He alleged that he suffered from PTSD due to “[e]xposure to traumatic incidents and subsequent flashbacks as a result”. He alleged a (deemed) date of injury of 11 November 2010, the date on which he stopped work with a medical certificate from Dr Little of the same date.
In its Reply, filed on 23 July 2013, Employers Mutual’s solicitors, Bartier Perry, sought leave under s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to dispute additional matters. In summary, the Reply:
(a)     disputed the deemed date of injury of 11 November 2010 and “the vague particularisation of” the injury;
(b)     asserted that, though there was “no primary dispute in terms of liability with respect to ‘injury’ and ‘employment being a substantial contributing factor to a psychological injury or injuries’”, Mr Gurnhill had “failed to properly particularise the relevant causative incidents and events” and that he suffered a “frank injury, or frank injuries, in the course of his employment including but not limited to an incident in October 2009”, and
(c)     asserted that if Mr Gurnhill sustained an injury “due to the cumulative effect of multiple traumas in the course of his employment”, which was not admitted, an “apportionment needs to take place between any frank injury(ies) including but not limited to the incident in October 2009, and a deemed injury occurring on 11 November 2010.”
Notwithstanding that Employers Mutual did not dispute liability, it opposed the matter being referred to an Approved Medical Specialist (AMS) for assessment of Mr Gurnhill’s claim for whole person impairment. As a result, the Commission listed the matter for arbitration.
For reasons that do not appear from the Arbitrator’s decision, it seems that he gave Employers Mutual leave to argue the issues raised in the Reply. The arbitration proceeded on 18 November 2013 with submissions from both sides but no oral evidence. It was agreed that Mr Gurnhill suffers from a psychological injury in the form of PTSD. The dispute identified by Mr Gurnhill’s counsel, Mr Edwards, was “whether that is a disease within the meaning of section…4(b)(i) or whether it consists of something other than a disease” (T2.1).
Counsel for the Police Force, Mr Batten, argued that Mr Gurnhill suffered two injuries: a “frank injury”, or a primary psychological injury, as a result of the October 2009 incident and a second injury due to the nature and conditions of his employment between 2002 and 11 November 2010. He said that the AMS should be asked to make two assessments of whole person impairment: one due to the injury in October 2009 and one due to the nature and conditions of employment. He conceded that both assessments could then be aggregated. Mr Edwards argued that Mr Gurnhill’s injury was a disease injury under s 4(b)(i) of the 1987 Act and that the Arbitrator did not have to look for discrete events that were causative.
In his decision delivered on 12 December 2013, the Arbitrator identified the following issues to be in dispute:
“(a)   What is the injury
(b)     what are the findings in relation to injury
(c)   what are the date or dates of injury and/or a deemed date or dates of injury?”
The Arbitrator determined that Mr Gurnhill suffered from a disease, namely PTSD, in the course of his employment and that the deemed dated of injury was 11 October 2010. The parties have agreed that this was a typing error and that the Arbitrator intended to find the deemed date to be 11 November 2010, as pleaded, which was the first date of incapacity.
The Commission issued a Certificate of Determination on 12 December 2013 in the following terms:
“The Commission determines:

1. The applicant suffered disease, namely post traumatic stress disorder in the course of his employment with the respondent.

2. The deemed date of injury is 11 October 2010 [sic, 11 November 2010].

3. This matter is remitted to the Register [sic, Registrar] for referral to an approved medical specialist for assessment of the applicant’s whole person impairment in accordance with my findings in 1 and 2 above.

4. The documents to be forwarded to the Approved Medical Specialist are those set out in paragraph 12 (a) - (d) below, as well as any additional material filed by the applicant in response to the respondent's surveillance material within the next 14 days.

5. The respondent is to pay the applicants [sic] costs and I specify an uplift of 15% for both parties for complexity.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

The Police Force has appealed. For reasons explained below, the appeal is unsuccessful.

PRELIMINARY

Monetary threshold

There is no appeal under s 352 of the 1998 Act unless the amount of compensation “at issue” on the appeal is both at least:
(a) $5,000, and
(b) 20 per cent of the amount awarded in the decision appealed (s 352(3)).
Where the Arbitrator has made no award for the payment of compensation, but the award challenged would, if it stood, result in the claimant receiving no compensation, the question of whether the monetary thresholds have been satisfied is usually determined by looking at the compensation claimed in the Application (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5). However, the issue is more complicated in the present matter.
Employers Mutual’s solicitor, Mr Gawthorne, who did not appear at the arbitration, submitted that the monetary thresholds in s 352(3) were satisfied because “if the appellant is successful then 100% of the amount awarded against it by the arbitrator will be payable by another party”.
That submission was misleading and wrong. There is no other party to the claim. I assume the submission was a reference to the fact that, as at October 2009, the date of the alleged “frank injury”, Allianz Australia Insurance Ltd (Allianz) insured the Police Force. However, like Employers Mutual, Allianz is an agent for the NSW Treasury Managed Fund (TMF).
Thus, as agents of TMF, both Employers Mutual and Allianz are managers of the same fund. They are not separate parties to the claim. Therefore, if there were to be a claim for contribution against Allianz, which has not been made in these proceedings, that claim would be against the same fund that Employers Mutual manages. Such a claim is not permitted.
In these circumstances, it is difficult to see how it can seriously be contended that more than $5,000 is “at issue” on appeal. Whatever award is made, it will be paid from the same fund.
Though Mr Batten argued at the arbitration that Mr Gurnhill suffered two injuries: first, a “frank injury” in October 2009 and, second, “an injury regarding the nature and conditions” (T12.44) of Mr Gurnhill’s employment both before and after October 2009, he conceded that in the event that Mr Gurnhill’s whole person impairment was determined for both injuries, he was “entitled to have those impairments aggregated” (T14.17). In light of this concession, it is difficult to see what purpose will be served by having separate assessments done and, more importantly, how the monetary thresholds in s 352(3) are satisfied.
For the above reasons, I have serious reservations as to whether the monetary thresholds are satisfied in this case. They are certainly not satisfied on the basis of Mr Gawthorne’s submissions. However, if I am wrong on this issue, and given that Mr Edwards has made no submissions on this point, I propose to proceed as if the monetary thresholds have been satisfied.

Interlocutory

As the Arbitrator’s decision was interlocutory, because it has not finally determined the parties’ rights to compensation (Licul v Corney [1976] HCA 6; 50 ALJR 439 at 443-444), but merely decided that a preliminary issue dealing with the nature of the injury and the question to be referred to an AMS, the Police Force requires leave to appeal. Though the appeal is unsatisfactory in several respects, and completely without merit, I am satisfied that it is necessary for the proper and effective determination of the dispute (such as it is) that the Commission grant leave to appeal and I (reluctantly) do so order (s 352(3A) of the 1998 Act; DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd) v Kelly [2011] NSWWCCPD 43 at [13]).

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the Police Force that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

Though experienced counsel appeared for the Police Force at the arbitration, Mr Gawthorne has prepared the appeal. To avoid confusion as to the issues said to be raised on appeal, I will set out the “grounds” of appeal in full:
“1. The arbitrator has made an error of law and error of discretion by failing to find the worker had sustained an aggravation to his pre-existing psychological injury (post-traumatic stress disorder, PTSD) resulting from the incident in October 2009. The error was precipitated by the arbitrator’s incorrect application of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 and NSW Police Force v Kearns [2008] NSWWCCPD 29 and defective reliance on Commissioner of Railways v Bain [1965] HCA 5.
2.The Arbitrator has made an error of law and error of discretion by failing to apply relevant Presidential and Court of Appeal authority in Inman v NSW Police Force [2013] NSWWCCPD 11 and Rail Services Australia v Dimovski [2004] NSWCA 267 to find the worker had sustained an aggravation to his pre-existing PTSD as a result of the incident in October 2009.”
In essence, the Police Force’s complaint, as articulated in Mr Gawthorne’s submissions filed on 10 January 2014, is that the Arbitrator erred in not finding that Mr Gurnhill sustained a psychological disease injury due to the nature and conditions of his employment pursuant to s 4(b)(i) of the 1987 Act and an aggravation, acceleration, exacerbation or deterioration of his disease injury as a result of the incident in October 2009 pursuant to s 4(b)(ii).
In submissions filed in reply on 6 March 2014, Mr Gawthorne raised, for the first time, a new issue that had not been identified in the original appeal. He submitted that:
“the Arbitrator erred in not finding [Mr Gurnhill] has sustained either a separate frank injury as a result of the incident occurring in October 2009 (as had been argued by Counsel for the [Police Force] at the arbitration, …, or an aggravation of his disease (as submitted by the [Police Force] in the Application to Appeal), in addition to the disease injury caused by the nature and conditions of his employment.” (emphasis in original submissions)
Though it was improper to raise this new ground in submissions in reply, without first seeking leave to do so, I will deal with it. Parties are reminded that submissions in reply are intended to give the appellant the opportunity to reply to submissions filed on behalf of the respondent. They are not an opportunity to raise entirely new issues.

THE ARBITRATOR’S DECISION

The Arbitrator noted Mr Batten’s submission that Mr Gurnhill had suffered a frank injury in October 2008 and an injury due to the nature and conditions of his employment. He referred to Dr Terace’s evidence that PTSD is a complex condition and that it is frequently difficult to determine the precise cause or causes, particularly in occupations such as policing, where police are exposed to multiple traumatic events over time. Though Dr Terace said he did not agree with Mr Gurnhill’s claim that his condition was due to the nature and conditions of employment, the Arbitrator was unable to discern his reasoning processes or how he came to that conclusion.
The Arbitrator then referred to the evidence that Mr Gurnhill had been exposed to multiple traumatic events before October 2009 and noted the evidence that Mr Gurnhill was a “quiet and private person, somewhat proud and therefore unlikely to raise issues that troubled him” ([22]), a situation that was reinforced by the culture of the workplace which did not encourage police officers to speak up when experiencing issues, particularly stress. The Arbitrator also referred to the evidence from Sergeant McCormack that, though he had not seen Mr Gurnhill daily, he had not observed any changes in Mr Gurnhill’s demeanour after the event of October 2009.
The Arbitrator said, at [25]:
“25. Accordingly there is a large amount of material before me which confirms that apart from the event of October 2009 that [Mr Gurnhill] was exposed to a large number of traumatic events. In these circumstances [it] is hard therefore to see how it [sic] Dr Terace has arrived at the conclusion that it is only the event of 2009 [that] has been the cause of his psychological injury.”
After acknowledging that the High Court has found “mental illness to be a disease” (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch)), and stating that the comments in Commissioner for Railways v Bain [1965] HCA 5; 112 CLR 246 (Bain) about diseases could be equally applied to a “psychological injury as well as [a] physical injury” ([26]), the Arbitrator said, at [27]:
“27. I find it inherently unlikely that a police officer, who, in the usual course of his employment, is exposed to a number of traumatic events over his career, suffers a primary psychological injury even if he has a significant reaction to one particular event. This is because the nature and conditions of his employment are identical to the passage referred to in Bain – the constant exposure to an irritant – but with a police officer it is the constant exposure to psychological irritants by exposure to traumatic events. Even before his transfer to the Tactical Operations Unit, [Mr Gurnhill] experienced more than his fair share of traumatic events. There can be no doubt on his evidence and that of Sergeant Garner and Sergeant McCormack that the traumatic events became more frequent [and] much more confronting after he joined the Tactical Operations Unit.”
The Arbitrator found it difficult to accept Dr Terace’s opinion that the “significant events in October 2009 and late 2010 were substantial if not predominant factors causing [Mr Gurnhill’s] psychiatric condition” ([28]). The Arbitrator felt that those “events were more reactions to recollections of the events of October 2009 and [were] not within themselves traumatic events” ([28]).
Though Dr Terace said that the incident in (October) 2009 was a substantial and/or predominant event, the Arbitrator found, at [28]:
“that the significant traumatic events that are described in [Mr Gurnhill’s] statement both before and after his appointment [to] the Tactical Operations Unit and leading up to the event of October 2009 cannot but have had a significant overall impact upon his mental health and although after the event in October 2009 he had florid psychological symptoms, I am not persuaded that this, or any other specific event during his pleasing [sic, policing] career, constituted a frank psychological injury. Due to the nature of his employment, particularly after 2007 and being involved in high risk dangerous and life-threatening situations, far beyond normal human experience, where people suffer violent deaths [in] front of him, I do not believe that it can be said that the event of late October 2009 alone caused a primary psychological injury.”

The Arbitrator concluded that he was persuaded that Mr Gurnhill suffered a disease within the meaning of s 4(b) and s 15 and that it was not a case where he had to “look at each of the events, but only allocate the last date [Mr Gurnhill] worked” ([29]). Accordingly, he said that 11 October 2010 was the deemed date of injury for Mr Gurnhill’s PTSD “which he sustained as a result of the large number of traumatic events to which he was exposed during his career with the NSW Police Force” ([29]). (As earlier noted, the reference to 11 October 2010 was incorrect. Consistent with the evidence, the first date of incapacity was 11 November 2010 and that is the correct deemed date of injury.)

SUBMISSIONS

Mr Gawthorne submitted that the Arbitrator’s reliance on Bain was “defective”. In that case, Windeyer J said, at 272:
“A disease is thus none the less an injury within the meaning of the Act whether it be in fact contracted at a particular point of time or by a gradual process. The word ‘disease’ seems to me apt to describe any abnormal physical or mental condition that is not purely transient, certainly one that, like boilermaker’s deafness, is commonly called an occupational disease. Such a disease may be the result of infection (e.g. anthrax or blood poisoning), of constant exposure to some irritant substance (e.g. dermatitis), of the absorption of a substance poisonous by its cumulative effect (e.g. lead poisoning), of the long continued inhalation of dust injurious to the lungs or of exposure to some other factor which is a circumstance of the employment. I cannot see that, for the purposes of the New South Wales Act, any abnormal physical condition well recognized in medical science that, like beat hand or beat knee, is the result of repeated pressure or, like boilermaker's disease, of repeated concussion by noise is any the less a disease than is an abnormal physical condition caused by a germ or by the repeated absorption through the nose or the skin of some deleterious substance.”
Mr Gawthorne said that, contrary to the Arbitrator’s statement, the nature and conditions of Mr Gurnhill’s employment “were not ‘identical’ to the passage referred to in Bain”. Apart from the “obvious differences between the causative mechanisms of a psychological injury on the one hand and boilermaker’s deafness or dermatitis on the other”, Mr Gawthorne said the facts in Mr Gurnhill’s case, as found by the Arbitrator, were of the incident in October 2009 causing Mr Gurnhill “florid psychological symptoms” “in addition to the psychological injury [Mr Gurnhill] had sustained as a result of exposure to numerous traumatic incidents”.
Mr Gawthorne argued that neither the facts in Bain, nor the comment by Windeyer J, involve or contemplate a situation such as the present, whereby a disease injury, which has developed over a number of years, “is aggravated by a specific incident causing the disease injury concerned to deteriorate or produce more ‘florid’ symptoms”. He said that authorities that have dealt with “such scenarios”, such as Rail Services Australia v Dimovski [2004] NSWCA 267 (Dimovski) and Inman v NSW Police Force [2013] NSWWCCPD 11 (Inman), were ignored.
Dealing with Semlitch, Mr Gawthorne submitted that the High Court held that schizophrenia was “capable” (emphasis in original) of being classified as a “disease” for the purposes of the legislation and that it is an error to assert that that case stands for a proposition that all mental illnesses are, and must only be, disease injuries for the purpose of the legislation, as the Arbitrator appears to have found. He said that a psychological injury may be a disease injury caused by a gradual process, a personal injury caused by a frank incident, or a disease injury that has been subject to “aggravation, acceleration, exacerbation or deterioration” by a frank incident (NSW Police Force v Kearns [2008] NSWWCCPD 29 (Kearns)).
Mr Gawthorne argued that Kearns makes it clear that a psychological injury caused by a disease process is capable of being aggravated, thus resulting in two “injuries”. Mr Gawthorne said a worker is capable of having sustained two psychological injuries, one caused by a frank incident and the other resulting from a disease caused by the nature and conditions of employment. It can also be the case that a “frank psychological incident or injury causes the aggravation of a psychological disease injury, resulting in two dates of injury”.
Mr Gawthorne contended that the Arbitrator’s reliance on Semlitch and Kearns “to find [Mr Gurnhill] had not sustained an aggravation injury arising from the incident in October 2009 amounts to an error of law and an error of discretion”.
Mr Gawthorne further submitted that the Arbitrator erred by failing to apply “the more germane” authorities of Inman and Dimovski. Had the Arbitrator applied those authorities, then, based on his factual findings, he would have concluded that Mr Gurnhill “sustained a psychological disease injury caused by the nature and conditions of his employment as a police officer and an aggravation, acceleration, exacerbation or deterioration of that condition caused by the incident in October 2009”.
Mr Gawthorne said that the Arbitrator made factual findings “which the appellant submits caused [Mr Gurnhill’s] PTSD to be ‘more grave and more serious in its effects upon’ him”. In particular, the Arbitrator found:
(a) that the circumstances involving the death in October 2009 were “very distressing to [Mr Gurnhill], and he had difficulty coping after that time and on 11 November 2010 ceased his employment”, and
(b) after the event in October 2009 Mr Gurnhill had florid psychological symptoms.
In addition, Mr Gawthorne said that the Arbitrator’s statement (at [27]) that he found it inherently unlikely that a police officer, who, in the usual course of his employment, is exposed to a number of traumatic events over his career, suffers a primary psychological injury even if he has a significant reaction to one particular event, failed to consider the issue of aggravation and was inconsistent with Inman.
The Arbitrator appeared to accept Mr Gurnhill’s statement regarding the traumatic experiences prior to the incident in October 2009 and the effect that incident had on his psychological symptoms. That effect was sufficient to “establish an aggravation of his disease injury for the purposes of sections 4(b)(ii) and 16(1) of the 1987 Act”.
Mr Gawthorne said the fact that an injury arising out of a frank incident “is not to be subsumed into a ‘nature and conditions’ disease injury is confirmed by the NSW Court of Appeal decision in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 which it appears the arbitrator failed to consider”.
With respect to the new issue raised in his submissions in reply, namely, whether the Arbitrator erred in not finding that Mr Gurnhill suffered a “frank injury” as a result of the October 2009 incident, Mr Gawthorne relied on the evidence of the onset of, or increase in, psychological symptoms caused by the October 2009 incident referred to by counsel at the arbitration. He said the Arbitrator “does not appear to have rejected the evidence Counsel for the [Police Force] had put forward at the hearing regarding the effect of the incident in October 2009 had on [Mr Gurnhill]”. The Arbitrator found (at [26]) that Mr Gurnhill had “florid psychological symptoms” following the incident in October 2006.
Mr Gawthorne contended:
“that the Arbitrator erred in his conclusion that the impact the incident of October 2009 had on [Mr Gurnhill] did not, or could not, result in a frank injury because ‘mental illness is a disease’, and his finding that it was ‘inherently unlikely that a police officer, who, in the usual course of his employment, is exposed to a number of traumatic events over his career, suffers a primary psychological injury even if he has a significant reaction to one particular event’.” (emphasis added by Mr Gawthorne)
He said that the evidence relied on by Mr Batten at the arbitration regarding the effect that the October 2009 incident had on Mr Gurnhill, and the Arbitrator’s apparent acceptance of that evidence, was sufficient to lead to a finding of a “frank injury”, in addition to a disease injury. He added that a “frank injury” that aggravates a disease is nonetheless capable of being classified as a “personal injury” for the purposes of s 4(a). He conceded that the incident of October 2009 did not cause Mr Gurnhill an immediate incapacity for work, but an incapacity is not a pre-condition to establishing an “injury” for the purposes of s 4(a).
Accordingly, the Arbitrator having found that the October 2009 incident caused Mr Gurnhill’s psychological symptoms to become “more florid”, erred in that the incident did not, or could not, result in a separate personal injury. Mr Gawthorne sought orders that the Arbitrator’s determination be revoked and orders be made that Mr Gurnhill suffered a disease (PTSD) in the course of his employment with the Police Force pursuant to s 4(b)(i) with a deemed date of injury of 11 November 2010 and a personal injury pursuant to s 4(a) as a result of the October 2009 incident.
Mr Edwards submitted that the appeal is, at best, ill-conceived or, at worst, “a complete misunderstanding of the interaction between Section 4 and Sections 15 and 16 of” the 1987 Act.

DISCUSSION AND FINDINGS

Mr Gawthorne’s submissions in reply have raised an entirely new issue that was not identified in the original submissions. However, as he has not abandoned his original submissions, I will deal with all issues.
It is appropriate to first deal with the authorities referred to by Mr Gawthorne and their relevance, if any, to the present matter. Dealing with Bain, the Arbitrator said that he agreed with the submission by Mr Edwards in relation to that case. Mr Edwards’ submission was that “when you look at [Windeyer J’s] description, it really doesn’t differ from what [Mr Gurnhill] says is his condition and that is the accrual by him of innocuous memories or circumstances that create the ultimate psychiatric state” (T3.12).
The Arbitrator’s reference to the nature and conditions of Mr Gurnhill’s employment being identical to the statement by Windeyer J in Bain, where his Honour said that a disease may be the result of “constant exposure to some irritant substance”, was open to him and disclosed no error. The evidence was that Mr Gurnhill was regularly exposed to traumatic events in the course of his career with the Police Force. Windeyer J was not, in the passage quoted, referring to the causative mechanism of any particular job, but was speaking in general about any abnormal physical or mental condition caused by “constant exposure” or by a “cumulative effect”. As will be seen from the medical evidence, discussed in detail below, that is exactly the situation in the present case. Mr Gurnhill was regularly exposed to traumatic events and, over time, those events had a cumulative effect on him.
Mr Gawthorne’s submissions, as originally filed, assumed that Mr Gurnhill suffered from a “disease injury” immediately before the October 2009 incident and that that incident aggravated that “disease injury”. That assumption is unsupported by any persuasive evidence or authority. Though Dr Terace suggested that the October 2009 incident “may” have aggravated the effects of traumatic events prior to that time, his ultimate conclusion did not support that view. More importantly, however, Mr Gawthorne’s submissions (on this point) were completely inconsistent with the case Mr Batten presented at the arbitration.
At the arbitration, Mr Batten made express reference to the absence of any complaint of a psychological condition before October 2009 (T9.10) and argued that the October 2009 incident was “an injury in the nature of a frank injury” (T9.35). I assume that Mr Batten meant to say that the October 2009 incident caused a “personal injury” within s 4(a) of the 1987 Act, which (he submitted) was a primary psychological injury. This is consistent with his later submission, at T12.40:
“MR BATTEN: And then the doctor comes to some - comes to the conclusion that I referred to earlier, in my submission, that there are two injuries. One is an injury as a result of the incident at Orange in October 2009. And the other is an injury regarding the nature and conditions of [Mr Gurnhill’s] employment, both before that and afterwards.
So my submission is that the finding of injury should be that on the - on a day in October 2009 [Mr Gurnhill] suffered a frank, primary psychological injury as a result of events which occurred at Orange involving the suicide of ‘Ian’. And the AMS should be asked to assess WPI.”
It follows that, as Mr Batten never argued that Mr Gurnhill suffered an aggravation injury in October 2009, the Arbitrator did not err in not making that finding. It is not an error for an Arbitrator not to deal with an argument never put (Brambles Industries Ltd v Bell [2010] NSWCA 162 at [22] and [30]).
Mr Gawthorne’s submission that Dimovski and Inman have “dealt with such scenarios” (as have occurred in the present matter) was wrong. Dimovski was concerned with physical injuries to the worker’s knee and back. The worker relied on a nature and conditions claim for the period 25 January 1990 to 30 June 1996, and on personal injuries under s 4(a) on 9 May and 6 June 1995 against his first employer. He also relied on a nature and conditions claim for the period from 1 July 1996 to 15 August 1998, and a personal injury on 28 May 1998 against his second employer.
Hodgson JA held (at [68]) that s 16 of the 1987 Act applies only if the injury “consists in” the aggravation of a disease. His Honour added that:
“If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s.16(1)(a) to have happened at some time other than when it in fact happened.”
His Honour’s reference to paragraph (a) of the definition of injury was a reference to a “personal injury” in s 4(a) of the 1987 Act. The comments were in the context of the worker having suffered personal injuries (frank injury) to his back and/or knee in specific traumatic incidents, which also aggravated an underlying degenerative condition, namely, osteoarthritis. There is no comparison between the facts in Dimovski and the present matter.
It may be accepted, as Mr Gawthorne submitted, that a “personal injury” which also aggravates a pre-existing disease, is still capable of being classified as a “personal injury”. However, that does not advance the Police Force’s position on appeal. The Arbitrator did not suggest that PTSD could never be classified as a personal injury. He merely found it “inherently unlikely” that a police officer, exposed to a number of traumatic events over his career, suffers a primary psychological injury, even if he has had a significant reaction to one particular event. On the evidence tendered in this case, discussed in detail below, that general observation disclosed no error.
Inman concerned a police officer who suffered a psychological condition as a result of the combined effect of the suicide death of another police officer and her subsequent treatment by her superiors. The case considered whether the worker had received a personal injury (under s 4(a)) on the day she received the news of the death, or whether her condition had been contracted gradually as a result of an accumulation of multiple events over time. If it was the latter, then the injury was properly classified as a disease contracted in the course of her employment under s 4(b)(i).
It was held that, though Ms Inman immediately felt “shock and grief” on the day she received the news of the suicide, struggled to sleep that night and had anxiety symptoms and panic attacks, which pointed to her having suffered a personal injury, in light of the medical evidence that the condition had “evolved gradually” ([255]) from the time of the death, the better view was that the injury was a s 4(b)(i) disease. The deemed date of injury was 22 September 2011, the date of first incapacity for which compensation was claimed.
Ms Inman returned to work after 22 September 2011, but before she had fully recovered from her disease injury. As a result of things that happened after her return to work, Ms Inman suffered an aggravation of her condition that caused her to stop work on 4 November 2011. Therefore, the ultimate finding was that she had suffered a s 4(b)(i) injury (with a deemed date of injury on 22 September 2011) and, subsequently, a s 4(b)(ii) injury (with a deemed date of injury on 4 November 2011).
Nothing in Inman assists the Police Force in the present appeal and Mr Batten did not refer to it at the arbitration. The critical point is that before a finding can be made that a worker has suffered an aggravation injury under s 4(b)(ii), it is first necessary to establish (among other things) that he or she suffers from a disease (Semlitch per Windeyer J at 638). As noted above, there is no persuasive evidence that, as at October 2009, Mr Gurnhill was suffering from a disease. It follows that Mr Gawthorne’s original submissions cannot be accepted.
Moreover, Mr Gawthorne’s original submissions on appeal are completely inconsistent with Mr Batten’s submissions at the arbitration. It is “elementary that a party is bound by the conduct of his case” (Metwally v University of Wollongong (No 2) [1985] HCA 28; 59 ALJR 481 at 483). Mr Gawthorne has advanced no reason why he ought be allowed to present a substantially different case on appeal to that presented at the arbitration. Notwithstanding that fact, I have considered Mr Gawthorne’s submissions and, for the reasons stated, I have rejected them.
Mr Gawthorne’s submission that Semlitch (only) held that schizophrenia was “capable” of being classified as a “disease” does not advance his position on appeal. There is no doubt that the High Court considered it appropriate to classify psychological conditions as diseases. The Arbitrator therefore correctly stated that the High Court has found “mental illness to be a disease”. This statement is supported by the observations of Kitto J at 633 in Semlitch that “[i]n its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness”.
This does not, however, exclude the possibility that PTSD may, depending on the circumstances, also be a personal injury received as a result of a specific traumatic event. The Arbitrator did not suggest that it did. He merely acknowledged that, in Semlitch, the High Court found “mental illness to be a disease”. Contrary to Mr Gawthorne’s submissions in reply, the Arbitrator did not say that, because “mental illness is a disease”, the October 2009 incident did not, or could not, result in a “frank injury”. His reference to mental illness being a disease was merely a reference to the submission by Mr Edwards to that effect and was open to him.
Nothing in Kearns supports Mr Gawthorne’s original submissions. In that case, the worker suffered a s 4(b)(i) injury (PTSD) as a result of the cumulative effect of exposure to multiple traumatic events as a police officer between 1992 and 27 January 2001. In February 2001, and while still suffering from his PTSD, he started work with a different employer as a personal injury investigator. While investigating serious accidents in his second job, his PTSD worsened. The Arbitrator found that he had suffered two injuries: first, a s 4(b)(i) disease injury with the Police Force and, second, a subsequent s 4(b)(ii) aggravation injury with his second employer. Those findings were upheld on appeal. The only reference to Kearns at the arbitration in the present matter was by Mr Edwards, who merely relied on it as authority that PTSD is a disease. Mr Batten made no reference to Kearns. The Arbitrator’s acceptance of Mr Edwards’ submission involves no error.

Returning to Mr Gawthorne’s submissions in reply, which at least addressed the issue argued by his counsel at the arbitration, whether a psychological condition is classified as a personal injury or a disease depends on the evidence in each case. For it to be found that a worker with a psychological condition has received a personal injury, it is necessary that the events complained of had a physiological effect on the worker (Yates v South Kirkby Collieries Ltd [1910] 2 KB 538; Anderson Meat Packing Co Pty Ltd v Giacomantonio [1973] 47 WCR 3). More specifically, the High Court has described a personal injury under s 4(a) as a “sudden or identifiable physiological change” (Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 per Brennan CJ, Dawson and Gaudron JJ at 716 (Zickar)) and as “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 per Gleeson CJ and Kirby J at 300 [39] (Petkoska)).
Whether a worker has suffered a physiological effect that satisfies the test for a personal injury in s 4(a) will depend on the nature and severity of his or her symptoms. However, the terms “disease” and “personal injury” in s 4 are not mutually exclusive (Zickar) and the difference will not usually be of critical importance. As noted by Gleeson CJ and Kirby J in Petkoska (at [40]):
“The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense.”
In Inman, though it was clear that the worker had (at some stage) suffered a physiological effect, she did not manifest the kind of “sudden physiological change or disturbance of the normal physiological state” that normally constitutes a “personal injury”. In the circumstances of that case, the conclusion was that the worker’s psychological condition had been contracted gradually, as a result of multiple events over time, and the disease provisions applied ([262]).
In a case where a worker is exposed to a series of traumatic events over time, as is the case with a shearer with back symptoms, or a police officer who is exposed to a series of emotionally distressing events, it will always be difficult to establish that the worker has suffered a sudden physiological effect due to one or more incidents. Each case will depend on the precise evidence “concerning the nature and incidents of the physiological change accepted at the trial” (Petkoska at [39]), or, in this case, the arbitration.
It is in these circumstances that, provided the condition otherwise satisfies the requirements of a disease, it is often appropriate to find that the injury is a disease of gradual process under s 4(b)(i). This simplifies the assignment of liability and avoids unnecessary litigation (Grate Lace Pty Ltd v Thiess Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365 per Kirby P (as his Honour then was) at 368E). (For a general discussion on what constitutes a disease, see Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253; Fletcher International Exports Pty Limited v Barrow [2007] NSWCA 244 at [49] to [61]; Darling Island Stevedoring & Lighterage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482 at 496, and Bain.)
Accepting Mr Gawthorne’s submission that a psychological condition may be a disease contracted by a gradual process, a personal injury caused by a frank incident, or a disease injury that has been subject to “aggravation, acceleration, exacerbation or deterioration” by a frank incident does not advance the Police Force’s position on appeal in the present matter. The question before the Arbitrator was: what was the nature of Mr Gurnhill’s injury? The Arbitrator did not accept Mr Batten’s submission that Mr Gurnhill suffered a personal injury as a result of the October 2009 incident. The proper question on appeal is whether he erred in not accepting that submission.
Rather than referring to, and addressing on, the evidence that he said demonstrated error by the Arbitrator, Mr Gawthorne merely referred to the evidence “submitted by Counsel”. That was a most unsatisfactory and incompetent way to present an appeal.
The evidence relied on by Mr Batten, and on which Mr Gawthorne relied on appeal, includes:
(a)     The following passage from the report of Dr Bertucen, consultant psychiatrist qualified by Mr Gurnhill’s solicitor, dated 1 August 2011:
“Psychological Sequelae
Mr Gurnhill felt in retrospect the psychological symptoms began in earnest after the suicide of Ian as described above in October 2009. He regards this as a watershed event in his police career, after which his mental state was never the same.”
(b)     Evidence from Dr Terace that Mr Gurnhill’s impairment was contributed 50 per cent by the October 2009 incident and 50 per cent by his entire police career including the events in 2010.
(c)     The following passage from Mr Gurnhill’s statement of 1 May 2013:
“Following this [the incident in October 2009] I started initially having nightmares and it would take me quite a while to get back to sleep. This continued for a while. I started going to bed later and tried taking medications to get to sleep.”
The evidence referred to by Mr Batten does not come close to establishing that the Arbitrator erred in the manner alleged by Mr Gawthorne in his submissions in reply.
Mr Gurnhill’s history that he felt “in retrospect” that his psychological symptoms began “in earnest” after the October 2009 incident was of limited, if any, weight in the determination of whether he suffered a personal injury in that incident. Mr Gurnhill is not a doctor and would not know the cause of his condition. More importantly, in full knowledge of Mr Gurnhill’s statement, Dr Bertucen concluded that Mr Gurnhill’s PTSD was “a primary psychological condition that has arisen directly secondary to an accumulation of traumatic workplace incidents that he was exposed to during the course of his police career”. Thus, Dr Bertucen’s evidence does not support the argument that Mr Gurnhill suffered a personal injury as a result of the October 2009 incident.
Moreover, in contrast to evidence in Inman, there is no evidence that Mr Gurnhill suffered a physiological effect as a result of the incident in 2009. Though the evidence suggested that he experienced nightmares (and other symptoms) at some time after that incident (exactly when was not identified in the evidence), there is no evidence that he suffered a “sudden or identifiable physiological change” at the time of the incident in October 2009, or shortly after it. The evidence is that his symptoms developed over time and that they deteriorated in late 2010. This strongly points to his injury being a s 4(b)(i) injury, as the Arbitrator found, rather than a s 4(a) personal injury.
This conclusion is reinforced by the evidence from Sergeant McCormack (referred to by the Arbitrator at [23]) that, though he had not seen Mr Gurnhill daily, he had not observed any changes in Mr Gurnhill’s demeanour after the event of October 2009. This evidence was unchallenged and provides compelling support for the Arbitrator’s conclusion that Mr Gurnhill did not suffer a personal injury as a result of the incident in October 2009.
The Arbitrator dealt with Dr Terace’s evidence at [21]:
“21. The report of Dr Terace of 4 November 2013 at paragraph 1.17 contains an observation by Dr Terace of the nature of a chronic post traumatic stress disorder. He states that this condition is complex and it is frequently difficult to determine the precise cause or causes, particularly in occupations such as policing, where a policeman is exposed to multiple traumatic events over time, even if 1 or 2 particular experiences appear to be the most overwhelming or the most apparent in the causation of psychiatric of events. He then goes on to concede that it is arguable that the events of October 2009 and late 2010 and [sic] substantially contributed to the development of [Mr Gurnhill’s] post traumatic stress disorder (1.18). He also concedes that it is arguable that exposure to previous traumatic events also contributed to his psychological vulnerability towards the post-traumatic stress disorder, such that there is properly not a single incident which alone caused his condition. He then goes on to state that [he] does not agree with [Mr Gurnhill’s] claim that his condition was due to the nature and conditions of employment, but I am unable to discern his reasoning processes and how he came to this conclusion.”
The Arbitrator’s summary of Dr Terace’s evidence was generally consistent with the doctor’s evidence.
In his report of 4 November 2013, Dr Terace took a history that, over the course of his career with the Police Force, Mr Gurnhill was exposed to a “plethora” of traumatic incidents, which included suicides, homicides, having weapons pointed at him and stopping vehicles in dangerous situations. He had nightmares following traumatic events, which subsided within a short period. Dr Terace recorded that the October 2009 incident was “a particularly traumatic” one and he noted the details of that incident.
Dr Terace also took a history that, in or about September 2010, Mr Gurnhill attended a job to apprehend people wanted for murder. During the course of this job, Mr Gurnhill’s car was rammed by the offender’s vehicle, causing Mr Gurnhill to be very anxious and have flashbacks of the October 2009 incident. Dr Terace added that “[o]ver the latter course of 2010, [Mr Gurnhill’s] symptoms progressively worsened”. An incident occurred when, while at traffic lights, Mr Gurnhill saw a car similar to the one used by the victim in October 2009. He visualised the scene from 2009 and thought he saw the victim sitting in the car.
Dr Terace’s history continued that Mr Gurnhill started avoiding jobs, he was afraid he was going to injure or kill someone and he was not using the tactics he had been trained to use. He had visions of injuring his daughter. While pushing her pram, he had a flashback to the time when he was holding the stretcher for the victim from October 2009 and it tipped. During the flashback, Mr Gurnhill suddenly tipped the pram and his daughter almost fell out. On 11 November 2010, he was certified unfit and that was the certification at the time of Dr Terace’s examination in August 2012.
Dr Terace noted that Employers Mutual accepted that Mr Gurnhill sustained a psychological injury due to his work as a police officer, but disputed the claim that the injury arose due to the nature and conditions of his employment. Rather, Employers Mutual “asserted that [Mr Gurnhill’s] injury was caused by one or more frank and identifiable incidents, in particular, the incident on [sic] October 2009”.
Dr Terace said he agreed with Employers Mutual that Mr Gurnhill’s psychological injury was not the product of the nature and conditions of his employment but rather of “specifically frank and identifiable incidents including and in particular the incident of October 2009”. However, he agreed with Dr Bertucen that Mr Gurnhill has PTSD and considered it:
“reasonable to argue that it is due to an accumulation of traumatic incidents [to which Mr Gurnhill was] exposed in the course of his employment with the New South Wales Police Force, but consider[ed] the incident of October 2009 and the events of late 2010 to have been the most predominant causes of his psychiatric condition based on the history provided.”
Dr Terace noted that Dr Little had also concluded that the October 2009 incident was significant in the production of Mr Gurnhill’s PTSD diagnosis, but that Dr Little “ultimately concluded that [Mr Gurnhill’s] condition had been cumulative as a result of all traumatic events”. Dr Little had written to Mr Gurnhill’s treating psychiatrist stating that Mr Gurnhill’s PTSD “principally” resulted from the October 2009 incident.
Dr Terace added:
“The nature of chronic Posttraumatic Stress Disorder is that it is complex and [it is] frequently difficult to determine the precise causes of that Posttraumatic Stress Disorder, particularly in some industries such as in the Police Force in which a Policeman is exposed to multiple traumata over time, even if one or two particular experiences appear to be the most overwhelming, or the most apparent in the causation of the psychiatric condition.
It is arguable that the events of October 2009 and late 2010 both substantially contributed to the development of the Posttraumatic Stress Disorder.
It is also arguable that exposure to previous traumatic incidents also contributed to his psychological vulnerability towards the same Posttraumatic Stress Disorder such that there is probably not a single incident in this case which alone caused his condition, and it is probably a product of one or more traumatic events in his experience, but I do not agree with the position that it was due to the nature and conditions of his employment.” (emphasis included in original)
When specifically asked if Mr Gurnhill sustained a psychological injury as a result of the incident in October 2009, Dr Terace said that Mr Gurnhill:
“sustained a psychological injury partly as a result of the incident in October of 2009 but also as a result of events in late 2010 and also due to previous traumata to which he was exposed to [sic] in his role as a Policeman at a cumulative level as a product of specific traumata, rather than the nature and conditions of his employment.” (emphasis included in original)
Dr Terace considered it reasonable to argue the psychological injury was as a result of cumulative exposure to traumatic events during Mr Gurnhill’s entire police career which may probably have increased his psychological vulnerability to psychiatric disturbance, but the evidence suggested that the events in October 2009 and late 2010 were substantial, if not predominant, factors causing his psychiatric condition.
In answer to a question designed to establish that the October 2009 incident caused a “separate psychological injury”, in addition to the one sustained cumulatively over the course of his career, Dr Terace repeated that it was reasonable to take the position that Mr Gurnhill’s psychological condition was:
“probably a result of cumulative exposure to traumatic events during his entire police career, but that the incident of October 2009 was a substantial and/or predominant event, as were the events of late 2010 in causing a single and chronic Posttraumatic Stress Disorder. In other words, the incident of October 2009 may simply have aggravated the effects of traumatic events prior to that time.” (emphasis included in original)
Crucially, Dr Terace made it clear that it was “unlikely” that the October 2009 incident caused a separate psychological injury in addition to the one sustained cumulatively over the course of Mr Gurnhill’s career. The doctor thought it was more likely that, as Mr Gurnhill was exposed to increasing traumata, he developed increasing psychological vulnerability which was then substantially aggravated by the events of October 2009 and late 2010. While Mr Gurnhill described the incident of October 2009 as causing an onset of symptoms, Dr Terace said the reality was that Mr Gurnhill’s “psychological vulnerability prior to that time was probably already increased by his exposure to previous traumata, and was then again aggravated by events in late 2010”.
When asked to apportion Mr Gurnhill’s impairment between October 2009 and the cumulative exposure to traumatic events during his entire police career, Dr Terace said it was difficult to quantify the contribution from various events to a single psychiatric condition. However, he apportioned 50 per cent to October 2009 and 50 per cent to the cumulative exposure to traumatic events during Mr Gurnhill’s entire police career including the events of late 2010.
The above evidence provided a sound basis for the Arbitrator’s conclusion (at [28]) that neither the October 2009 incident, nor any other specific event, constituted a “frank psychological injury” (presumably the Arbitrator meant to say “personal injury” but nothing turns on this). The qualified medical evidence was unanimous that Mr Gurnhill’s PTSD had been caused by the “cumulative” effect of his work over the whole of his career as a police officer. In light of this evidence, most of which Mr Gawthorne simply ignored, the Arbitrator’s conclusion that October 2009 did not alone cause a primary psychological injury was open to him and disclosed no error.
As Mr Edwards pointed out in his submissions on appeal, quoting Mahoney A-P in Crisp v Chapman (1994) 10 NSWCCR 492 at 496C, “s 4(b)(i) does not require that the particular disease was caused by a particular incident of the worker’s employment at a particular time”. As the expert evidence emphasised, the nature of PTSD is complex and its precise cause can be difficult to determine. Given the nature of the incidents to which Mr Gurnhill was exposed during his career in the Police Force, and his reaction to them, the compelling and logical conclusion is that, on the balance of probabilities, his psychological condition has resulted from the cumulative exposure to traumatic events during his entire police career. It does not matter that some incidents may been more traumatic than others.
The Arbitrator’s reference (at [28]) to Mr Gurnhill having “florid psychological symptoms” after the event in October 2009 did not lead to the conclusion that he suffered a personal injury as a result of that incident. The resolution of that question required a consideration of all the evidence. A consideration of the expert evidence led the Arbitrator to conclude that the injury was properly characterised as a s 4(b)(i) disease. A review of the medical evidence establishes that, as Mr Edwards submitted at the arbitration (at T8.28), the Police Force’s own medical evidence did not establish that Mr Gurnhill received a “separate injury” in the October 2009 incident, or in any other incident.
Once it was accepted, as the Arbitrator did accept, that PTSD is a disease, and, more importantly, that Mr Gurnhill’s work as a police officer regularly exposed him to multiple traumatic events, and that those events had a cumulative effect on him, the conclusion that Mr Gurnhill suffered a s 4(b)(i) disease injury which he contracted in the course of his employment with the Police Force was inevitable and was correct. Similarly, in the absence of evidence that Mr Gurnhill suffered a “sudden physiological change or disturbance of the normal physiological state” as a result of the incident in October 2009 and, as explained above, there is no such evidence, the Arbitrator did not err in finding that Mr Gurnhill did not suffer a personal injury as a result of that incident.
This follows notwithstanding Dr Terace’s assertion that he agreed with Employers Mutual that Mr Gurnhill’s psychological injury was not the product of the nature and conditions of his employment. The phrase “nature and conditions” of employment is a “meaningless expression” (Hybinett v Illawarra Retirement Trust [2010] NSWWCCPD 11 at [7]) that is not used in the legislation. Cases are assessed and determined on the evidence, not on convenient catch phrases. The evidence comfortably established that Mr Gurnhill’s duties with the Police Force exposed him to repeated traumatic events that had a cumulative effect on him and caused his psychological condition, a condition which, in the circumstances of this case, is properly characterised as a disease under s 4(b)(i). Applying s 15(1)(a)(i), the correct deemed date of injury is the first date of incapacity, namely, 11 November 2010.
I reject Mr Gawthorne’s challenge to the Arbitrator’s statement that it was “inherently unlikely” that a police officer, who is exposed to a number of traumatic events over his career, suffers a primary psychological injury “even if he has a significant reaction to one particular event”. The submission was not supported with any reasoned analysis of the evidence or the relevant authorities that have discussed the meaning of “personal injury”. A careful consideration of the medical evidence, and the legal principles governing the nature of a “personal injury”, reveals that, in the circumstances of this case, the Arbitrator’s finding was open to him on the evidence and discloses no error.

OTHER MATTERS

While the Arbitrator’s conclusions do not disclose any error and are confirmed, his finding that the deemed dated of injury was 11 October 2010 was inconsistent with the evidence from Dr Little and, I assume, a slip. It is appropriate that that error be corrected on appeal so that the orders made are consistent with the evidence and the parties have consented to that course.
Last, the decision of Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 (Serna) is instructive and relevant. In that case, the worker suffered a psychological injury as a result of two robberies at the service station where he worked: one in May 2009 and the other in July 2009. An AMS assessed the worker to have a 15 per cent whole person impairment and issued a Medical Assessment Certificate to that effect. He identified the date of injury as both 29 May and 2 July 1999, and ascribed the whole of the 15 per cent to “this injury” (Basten JA at [15]).
The employer argued that the Medical Assessment Certificate was invalid or demonstrated on its face that there were two injuries, neither of which, assessed separately, could have reached the 15 per cent of permanent impairment necessary to meet the threshold in s 151H of the 1987 Act. It relied on a medical report to the effect that “the first robbery contributed 40% of [the worker’s] mental distress, and the 2^nd robbery contributed to 60% of her mental distress” (Basten AJ at [17]).
The employer argued, much as Employers Mutual has argued in Mr Gurnhill’s case, that there were two separate incidents giving rise to separate causes of action and injuries. After referring to Madden v Kingston Industries Pty Ltd [2005] NSWCA 440 at [30], and other authorities, Basten JA (Gyles AJA and Hoeben J agreeing) said, at [20]:
“It is a matter for the plaintiff to identify the injury with respect to which he or she claims damages and, in due course, to establish the relevant causal connection between that and any negligence on the part of the employer accepting, no doubt, that allowance may need to be made in the course of assessing damages for the effects of any pre-existing condition, for which the employer was not responsible.”
Basten JA noted that there will undoubtedly be injuries, falling within the definition of “injury” in s 4 of the 1987 Act, “which do not arise from a specific incident or event” ([22]). His Honour added, at [22]:
“The term ‘injury’ includes a ‘disease’ which, as is recognised by s 15, may be contracted by a gradual process. Other forms of personal injury, which may or may not constitute a disease, may result from exposure to work conditions over time. The elements of the definition, at least in pars (a) and (b), are not exclusive of each other: see Favelle Mort Ltd v Murray [1976] HCA 13; 133 CLR 580 at 588-589 (Barwick CJ); Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 at 329-330 (Toohey, McHugh and Gummow JJ). All that is required is that the injury arise out of or in the course of employment, or, in the case of a disease, be contracted in the course of employment. The contention that the injury must be connected with a specific incident or event harks back to the long since repealed requirement of the Workmen’s Compensation Act 1916 (NSW) which referred to ‘personal injury by accident’ arising out of and in the course of employment: s 5(1), discussed by Kirby J in Zickar at 339.”
Referring to the structure of s 151H, his Honour held (at [26]) that “there can be more than one injury resulting from one event”. His Honour’s reference to “injury” was a reference to the pathology caused by the particular incident concerned. The question posed by the employer was whether there could be one injury resulting from two events. After referring to ss 322 and 323 of the 1998 Act, Basten JA held (at [29]) the “statutory scheme is consistent with both an injury and an impairment having multiple causes and an injury being the result of a course of conduct”. Again, his Honour’s reference to “injury” was a reference to the pathology caused by the particular work incident/s concerned.
It followed that the Court rejected the employer’s argument.
In passing, and without deciding it, I note that it is difficult to see why the principle that an impairment can have multiple causes is not applicable to claims for lump sum compensation for a primary psychological injury to which s 65A applies. In other words, it is arguable that the reference to a primary psychological injury in s 65A is a reference to the psychological condition (the pathology) that has resulted from the work incidents concerned. If that is so then, even if, contrary to the Arbitrator’s finding, Mr Gurnhill suffered a personal injury as a result of the October 2009 incident and an aggravation injury because of his exposure to traumatic events over the whole of his career with the Police Force, his lump sum compensation could still be assessed as one lump sum because he has only suffered one injury (pathology), namely, PTSD.

CONCLUSION

This appeal, as initially framed, was misconceived and totally without merit. It graphically highlights the pitfalls in the now common practice of having experienced counsel conduct the arbitration on one basis and having solicitors (attempt) to conduct the appeal on a different basis. Mr Gawthorne’s initial submissions failed to address the fundamental issues involved, as identified and argued at the arbitration, and relied on authorities that had little, if any, relevance to the issue alleged to be in dispute. His submissions in reply at least addressed the relevant issue, but he dealt with the evidence against his position (which included the evidence from Dr Terace) by simply ignoring it.
Moreover, the raising of a new ground of appeal in submissions in reply was unsatisfactory and unacceptable. That the transcript was not made available until 17 January 2014 was no excuse for not including all relevant grounds of appeal in the Application – Appeal Against Decision of Arbitrator, which was filed on 10 January 2014. As Allsop P (as his Honour then was) observed in Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287 at [14], practitioners are required to keep notes of the essentials of what occurs in court. This principle applies with greater force to proceedings in the Commission where matters are determined more expeditiously than in most courts and where the Commission makes available an audio recording of the proceedings.
The conduct of this appeal, and this claim in general, raises a number of disturbing matters. There was no proper basis for the Reply filed by Bartier Perry. As it is for plaintiffs to plead their claims and to establish that any claimed impairment (or incapacity) has resulted from the pleaded injury (Serna), so it is for applicants to do the same in the Commission.
In this case, the pleadings in the Application described the injury as having been caused by “[e]xposure to traumatic incidents and subsequent flashbacks as a result”. Though the pleadings should also have made it clear that the worker alleged a disease injury under s 4(b)(i), they were sufficient to put the Police Force, and its insurer, on notice as to the nature of the claim it had to meet (Mason CJ and Gaudron J in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 286 – 287). It was for Mr Gurnhill to prove that case.
While the Police Force was entitled to dispute Mr Gurnhill’s entitlement to lump sum compensation, because Dr Terace felt that he had not reached maximum medical improvement and his impairment was less than 15 per cent, it was wrong to assert that Mr Gurnhill had “failed to properly particularise the relevant causative incidents and events”. There were multiple causative events and it was not necessary to identify each one in the Application. If the Police Force alleged that the impairment resulted from an event that was not pleaded, it was open to it to allege that Mr Gurnhill suffered no impairment as a result of the pleaded incident or incidents.
Most troubling of all was Mr Gawthorne’s submission that, if the appeal succeeded, the award would have to be satisfied by “another party”. That submission demonstrates a fundamental misunderstanding of the role of a TMF manager and appears to have been the real motivation behind Employers Mutual’s decision to dispute liability. As a result, for totally specious reasons, the resolution of Mr Gurnhill’s claim for lump sum compensation has been unnecessarily and improperly delayed. This warrants investigation by the WorkCover Authority of NSW.

DECISION

Subject to amending paragraph 2 of the Certificate of Determination of 12 December 2013, and paragraphs [29] and [31] of the Arbitrator’s Reasons, to delete “11 October 2010” and to insert “11 November 2010” in its place, the Arbitrator’s determination is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs, assessed at $2,530 plus GST.

Bill Roche
Deputy President

11 March 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE