O v Nepean Blue Mountains Local Health District - [2014] NSWWCCPD 52

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	O v Nepean Blue Mountains Local Health District [2014] NSWWCCPD 52
APPELLANT:	O
RESPONDENT:	Nepean Blue Mountains Local Health District
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-14930/12
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:	5 May 2014
DATE OF APPEAL DECISION:	13 August 2014
SUBJECT MATTER OF DECISION:	Challenge to factual findings; assessment of expert evidence; application of the principles in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85; 59 ALJR 844
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Shine Lawyers
Respondent:	Gair Legal
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 5 May 2014 is confirmed. 2. Each party is to pay his or its own costs of the appeal.
3.

INTRODUCTION

The worker alleges that he suffered a psychological injury because, among other reasons, his work performance was assessed against a Performance Improvement Plan (PIP) for an excessively long period. The Arbitrator found that the worker failed to discharge the onus of proving that he was in fact assessed for an excessively long period against the PIP and therefore the expert evidence which depended upon an acceptance of that fact, was of no great weight. The worker challenges the Arbitrator’s findings.

BACKGROUND

The appellant worker was employed by Nepean Blue Mountains Local Health District (NBMLHD) as a rehabilitation co-ordinator. NBMLHD is a body corporate constituted by s 17 of the Health Services Act 1997 (NSW), as specified in Sch 1. Pursuant to s 22(1)(c) of that Act NBMLHD may take proceedings and be proceeded against in its corporate name.
The worker alleges that as a result of recurrent “harassment and victimisation” in the course of his employment, he suffered a post-traumatic stress syndrome, depression and psychological injury. He alleges, in particular, that his work performance was measured against a PIP for an excessively long period.
On 26 September 2012, the worker submitted a “Workers Injury Claim Form”. He claimed weekly compensation from 16 August 2012, being his last day of work with NBMLHD.
On 3 October 2012, NBMLHD, through their workers compensation insurer, Employers Mutual Ltd issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It denied liability for the following reasons:
“• You did not suffer a psychological injury arising out of or in the course of your employment – section 4 of the Workers Compensation Act 1987.
· Your alleged psychological injury was wholly or predominately caused by reasonable action taken by Nepean Blue Mountains Local Health District with respect to discipline and/or performance appraisal – section 11A of the Workers Compensation Act 1987.
· You do not suffer any incapacity for work as a result of a work related injury – section 33 of the Workers Compensation Act 1987.
· You do not require any medical treatment for any work related injury – sections 59 and 60 of the Workers Compensation Act 1987.”
On 27 November 2012, the worker lodged an Application to Resolve a Dispute in the Commission. He sought an order for weekly compensation from 16 August 2012 and continuing and an order for medical expenses in the sum of $7,501. The alleged injury was pleaded as:
“Psychological injuries (including but not limited to):
1.       Post-traumatic syndrome
2.       Depression
3.       Anxiety”

The worker pleaded that the injury was due to being:
“subject to recurring harassment and victimisation during the course of his employment with Nepean Hospital from 2009 to 16 August 2012. Due to recurrent workplace harassment and victimisation, the applicant sustained psychological injuries.”
However, notwithstanding the general manner in which the worker’s allegations were pleaded, as the matter unfolded before the Arbitrator it emerged that the worker’s principal allegation related to the demands of a PIP which he claimed he was assessed against for an excessively long period. The deemed date of injury was pleaded as 16 August 2012.
On 25 January 2013, under cover of an Application to Admit Late Documents, NBMLHD filed a reply to the Application to Resolve a Dispute. It confirmed that the issues in dispute were those stated in the s 74 notice.
On 11 October 2013, the matter was listed for an arbitration hearing before a Commission Arbitrator. As the evidence sought to be relied upon by the worker was not in proper form, the matter was adjourned on his application to enable him to prepare a statement of evidence in proper form.
On 24 February 2014, the hearing resumed before a Commission Arbitrator. No oral evidence was called at the hearing. After hearing submissions by the parties, the Arbitrator reserved her decision.
On 5 May 2014, the Arbitrator issued a Certificate of Determination and a Statement of Reasons (reasons). The Arbitrator found in favour of the respondent on the basis that the worker failed to discharge the onus of establishing that he suffered an injury within the meaning of s 4(b)(1) of the Workers Compensation Act 1987 (the 1987 Act).
The Arbitrator concluded that the worker failed to discharge the onus of establishing the factual foundation for the acceptance of expert evidence supporting his claim.

PRELIMINARY MATTERS

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

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 parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 5 May 2014 records the Arbitrator’s orders as follows:
“1. Award for the respondent”

THE PROCEEDINGS BEFORE THE ARBITRATOR

At the first arbitration hearing on 11 October 2013, the worker’s counsel, Mr Stephen Hickey, submitted (at T15.1) that the worker’s injury was due to “harassment as nature and conditions of particular work which has caused his injury from 2009 to 16 August 2012…”. He alleged that the injuries were of a psychological nature which had been diagnosed as an adjustment disorder with depression.
Mr Hickey relied on a chronology, prepared by the worker, and stated (at T15.12) that the allegation “principally relates to the requirement to be subjected to performance…” . He sought to make submissions based on statements made in the chronology. There then ensued a long debate about whether or not the chronology could be relied upon as evidence of the facts therein, or only used as an aide memoire subject to proof of the facts referred to therein, from primary sources.
The Arbitrator rejected the chronology as a statement of evidence (at T25.26). The Arbitrator stated that it was not a statement, it was not signed and she refused to accept it as evidence of the facts stated therein. Subsequently, over objection from Mr Saul, counsel for NBMLHD, the worker was granted an adjournment and directed to file a statement of evidence within three weeks.
A signed statement by the worker, dated 25 November 2013, is in evidence. It is a lengthy statement which describes a number of interactions and events that occurred between July 2004 and 16 August 2012. Much of what is described in that statement appears to record routine events surrounding case management, performance appraisal and promotional applications. It records one occasion in August 2010 when the worker complained of an excessive workload.
On 24 February 2014, the matter resumed before the Arbitrator.
Mr Hickey’s submissions to the Arbitrator were conveniently summarised (at T15.5), where he said:
“The summary of [the worker’s] complaint against the employer in terms of harassment, bullying, etc, is that throughout his employment he alleges that he was somewhat overworked, he was not given a proper instruction as to his precise role and what it involved in terms of day to day record keeping and activities until later in the piece. And he was beset with a performance improvement program, I think it’s referred to as a PIP, soon after he returned, well on the day that he returned back from work after his paratidectomy in June 2012.”
The complaint, with respect to overwork, was not developed in the course of Mr Hickey’s submissions, in fact it was not mentioned again until his submissions in reply (at T60.10), where the allegation was repeated, but again without any specific evidence or submissions in support of it.
The allegation of overwork was denied by Ms Peta Fedeli, workers compensation and rehabilitation manager at NBMLHD, and Ms Helen Hoson, former risk manager at Western Sydney Local Health District (WSLHD) and Sydney West Area Health Service (SWAHS) prior to her retirement in January 2012. In July 2011, SWAHS split into two local health districts, that being WSLHD and NBMLHD.
The allegation of an absence of proper instruction as to the worker’s precise role and the requirements of his day to day record keeping was also not developed in Mr Hickey’s submissions to the Arbitrator.
The submissions before the Arbitrator focused almost exclusively on the events and correspondence leading up to the worker being placed on the PIP and the medical evidence dealing with the impact of the PIP on the worker.

GROUNDS OF APPEAL

The worker’s grounds of appeal are that the Arbitrator erred by:
(a) rejecting the worker’s medical case (being the opinions of Dr Megaly, general practitioner, and Dr Robert Hampshire, consultant psychiatrist) by incorrectly reasoning that the assumed facts by which those medical opinions were premised, were not supported by the evidence when there was such supportive evidence before her, and
(b) failing to properly consider all the evidence by confining her reasons, and thus her fact finding enquiry as to the main cause of the worker’s alleged psychiatric work injury, to the allegation of an enduring PIP when there were additional and compound work related causes for the onset of his condition. Those other causes relate to allegations of an excessive workload and the absence of a clear delineation of his role and duties.

ISSUES ON APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The worker’s submissions in support of the grounds of appeal involve a range of matters that were either not argued before the Arbitrator, or concern issues that may have been relevant to a merit review of the Arbitrator’s decision but are not relevant to an appeal under s 352 of the 1998 Act.
On 4 August 2014, I convened a telephone conference. Both parties were represented by counsel and their solicitors. At the telephone conference, the following matters were conceded:
(a) the case before the Arbitrator was argued as a disease injury under s 4(b)(i) of the 1987 Act, that is, it was a disease contracted by the worker in the course of his employment and his employment was the main contributing factor to the contracting of the disease;

(b) Mr Hickey, counsel for the worker, conceded that the case was not argued as an aggravation of a disease under s 4(b)(ii) of the 1987 Act;

(c) Mr Parker, counsel for NBMLHD, conceded that the worker suffers from a psychological condition. The issues before the Arbitrator concerned the cause of the condition and whether his employment was the main contributing factor to the contracting of the disease, and, if so, whether the defence under s 11A of the 1987 Act applies. On that basis, Mr Hickey withdrew reliance on [16] and [17] of the Appeal Against Decision of Arbitrator (notice of appeal), which are directed to the question of what constitutes a psychological injury;
(c) Mr Hickey also conceded that the case was not argued on the basis that the worker’s injury arose from a perception of events in the course of his employment. On that basis [20] of the notice of appeal, which is directed to that question, was not pressed, and
(d) where injury pursuant to s 4(b)(i) is alleged and where the deemed date of injury is after 19 June 2012, as it is in this case, Mr Hickey conceded that s 9A of the 1987 Act is not relevant. To the extent that he submitted either before the Arbitrator or on appeal that the provisions of s 9A applied to this case, he was in error and the submission was withdrawn.

At the telephone conference I directed Mr Hickey to file a chronology which complied with Practice Direction No 6, by 4 pm on 8 August 2014.

THE EVIDENCE

There are a number of key witnesses in these proceedings and their evidence is discussed below. Those witnesses include Ms Hoson, Ms Fedeli and Ms Glinda Mullen, former workers compensation manager at WSLHD prior to her retirement in August 2013.
On 23 June 2011, the worker returned to work at SWAHS following a period of leave due to surgery, a parotidectomy, which was unrelated to work. On that day the worker was called into Ms Hoson’s office and she “told [him] that [he] was going to be placed on a Performance Improvement Plan” (see the worker’s statement dated 25 November 2013 at [64]).
On 24 June 2011, Ms Mullen emailed the worker arranging for a performance meeting. She stated that the meeting was to go over the worker’s performance as a Rehabilitation Coordinator in the Risk Management Unit. She added that “[t]his is not a disciplinary process but a formalisation of discussions with you during the past year”. The meeting was re-scheduled for 28 June 2011 so that the worker could obtain a support person.
On 28 June 2011, the performance meeting was held, the purpose of which was to discuss the implementation of the PIP. Ms Hoson, Ms Mullen and the worker attended the meeting. In that meeting the worker’s performance was discussed.
The PIP, which is in evidence, is dated 28 June 2011 and signed by the worker. The identified issues to be addressed were: time management and claim coordination; expected and appropriate behaviour, and customer service. A list of dot points under the headings “[w]hat does the staff member need to do?” and “[w]hat does the Manager need to do” correspond with each of those issues. Resources relevant to each issue were also identified under the heading “What resources are needed?”.
The worker said that meetings were held on a monthly basis concerning his performance until he was transferred to his new manager, Ms Fedeli. The worker’s performance was first reviewed on 9 August 2011. Ms Mullen and the worker were in attendance at that meeting. The notes regarding the performance review of 9 August 2011 indicate that since the PIP was signed, on 28 June 2011, the worker had not shown any significant improvement and as a result the time of the plan was extended for a further month.
On 6 September 2011, another review of the worker’s performance was conducted where it was again found that there had not been any significant improvement since the last meeting in August. The PIP was extended for a further month.
On 24 October 2011, a further review of the worker’s performance was conducted. It was noted that the worker did not fully understand the requirements of his position of Rehabilitation Coordinator. His neglect of his workers’ and legislative obligations as well as service level agreements reflected a poor understanding of the role. As the worker had been transferred to NBMLHD as of 17 October 201, his PIP was transferred to his new manager, Ms Fedeli.
On 24 October 2011, the worker was told that his SWAHS PIP was transferred and that Ms Fedeli would make a time to meet with him in relation to his performance.
In late October 2011, the worker was transferred from SWAHS to NBMLHD.
Annexed to Ms Fedeli’s statement dated 4 October 2013 is a report, dated 19 September 2012, where she states: “[i]n or around February 2012, I verbally advised [the worker] that I would not be progressing the SWAHS PIP it did not meet the requirements of his position at NBMLHD”. Ms Fedeli states that “[p]rior to my decision earlier in the year not [to] continue with the SWAHS PIP and after the staff had moved to the new Unit, I sent an email to [the worker] 11/01/12 to continue his SWAHS PIP”.
Ms Fedeli further said (see statement dated 4 October 2013 at [14]) that:
“On many occasions starting from the beginning of the year [that being, 2012], I told [the worker] I would not be continuing with the SWAHS improvement plan as this was not relevant to his current job. I felt the SWAHS PIP would be a negative tool unrealistic for [the worker] to meet the objectives of this tool in his current role. Continuing with the SWAHS PIP would have had a negative effect on [the worker] and my team. [The worker] seemed to be totally focussed on being continually performance managed on the SWAHS PIP which would have been detrimental. I ceased meeting with [the worker] in my office as any discussion that I had with him on this or any other matter was met with aggression.”
On 12 April 2012, Ms Fedeli allegedly said to the worker that “I now know that I can’t continue your performance improvement plan but it doesn’t mean that I can’t start a new one, ha ha, ha”. The worker suggests that this goes to show that “[Ms Fedeli] want[ed] to utilise the PIP as a tool to continue to victimise [him]” (see the worker’s statement made on 10 October 2013 at [3.2.3]). Ms Fedeli denies the allegation, made by the worker, that she would increase the demands of the PIP and that she laughed or mocked him (see Ms Fedeli’s statement dated 4 October 2013 at [11]).
On 2 May 2012, Ms Fedeli sent the worker an email in the following terms:
“[A]s previously discussed, I would like to meet with you regarding progressing a performance management plan. You are welcome to have a support person at the meeting. Would you have some time on the 19th of May to meet with myself and Anne.”
On 2 May 2012, the worker sent an email to Ms Fedeli requesting to meet with Ms Fedeli and Mr Brian Beatty, the Director Workforce People & Culture. On 16 May 2012, Mr Beatty sent an email to the worker and Ms Fedeli advising that he was “happy to meet with [the worker] to discuss general performance reviews. It would not be appropriate to discuss the specifics of your current performance plans, these should be managed and discussed with Peta as your direct line manager”. The worker and Mr Beatty met on 24 May 2012.
On 19 June 2012, Ms Fedeli provided the worker with a blank Performance Development Review FORM 2 to complete. In her statement dated 19 September 2012, Ms Fedeli said that this was not a PIP, and according to policy it was an “opportunity to express appreciation of work well done, discussing facts negatively impacting on performance, reviewing workload and processes, identifying training and development needs and further performance planning”. The worker had a meeting with Ms Anne Forsyth, the worker’s manager, the next day regarding the SWAHS PIP. Following this date, Ms Fedeli said that there were at least two occasions in which meetings were arranged but the worker was unable to attend as he was unwell.

On 23 June 2012, the worker was admitted to Liverpool Hospital due to “Acute psychosis”. He was discharged on 3 July 2012. It was during that admission that the worker was diagnosed with multiple sclerosis.
On 13 July 2012, the worker was admitted to Bankstown Hospital. On that same day, Dr Rosemary Govender treated the worker. Her clinical admission notes, dated 14 July 2012, record that the worker was scheduled “as a risk to self and others” and under “Background” the following is recorded: “Acute psychosis Likely Tumourfactive Multiple Sclerosis Associated with confusion, aggression, altered thoughts, paranoid”. The worker was discharged on 14 July 2012.
In the hospital’s clinical progress notes, dated 13 July 2012, the following history is recorded: “last 18 months start talking about people bullied him putting too much pressure on him by giving him huge work load to finish per day”.
In the Mental Health Assessment report, dated 14 July 2012, the following history is recorded: “patient reports victimisation at work which family confirm, he is insisting on pursuing a work cover claim”. Under “Past Psychiatric/mental health history” the following is recorded: “Acute psychosis admitted Liverpool Hospital 23/6/12 – 3/7/12 organic psychosis 2° to likely tumor facture m/s”. Under “Provisional Diagnoses” the following is recorded: “Adjustment Disorder 2° to work related stress ¾ of acute organic psychosis – Liverpool Hospital 23/6/12 – 3/7/12”.
On 30 July 2012, the worker sent an email to Ms Fedeli requesting that she “outline the purpose and details of the meeting”. In response to that email, on that same day, Ms Fedeli wrote:
“You have indicated that you want to review your previous performance review plan that was developed by your previous manager at SWAHS. I am happy to talk about the plan with you however as previously discussed, you are now employed at NBMLHD, the LHD has different directions, goals, procedures and reporting requirements. I would like to work with you in developing your skills in your role at Nepean with a new plan relevant to your current employment and job requirements.
I have put together a brief agenda for our meeting.” (attached to that email was a copy of the agenda)
On 1 August 2012, the worker sent an email to Ms Fedeli advising that his “support person is unable to make the 930am meeting time” and requested that the meeting be changed to 7 August 2012.
On 5 August 2012, the worker sent an email to Ms Fedeli. In that email he requested that prior to the meeting on 7 August 2012 that “further information for each of the items that you have placed on the Agenda” be provided to him for a “fair, open and transparent meeting”. He there requested that the “meeting scheduled for Tuesday 7 August 2012 be delayed until such time that [he] had the opportunity to review” the responses. In addition, he noted that he “need[s] to review [the] responses…before [he] would be in a position to complete Form 2”. On 10 August 2012, the worker sent an email to Ms Fedeli seeking a response to the request he made, on 5 August 2012, “by the end of the day”.
On 16 August 2012, the worker attended on Dr Megaly. In Dr Megaly’s progress notes, dated 16 August 2012, the following is recorded: “work harsement [sic], working at Napean as Rehab cordinator [sic], there was alot [sic] of changes at work environment…has had performance plan, they put him under a lot of stress from his supervisor…noit [sic] able to cope with the stress and anxiety”. The worker was prescribed Endep.
On 16 August 2012, the worker ceased work. His employment was terminated on 12 November 2012.
On 17 August 2012, Ms Fedeli sent an email to the worker in the following terms:
“1. I have mentioned to you on several occasions that the perf [sic] review plan from your previous employment at SWAHS will not be used as the performance review plan for NBMLHD. I am happy to discuss the plan with you if you wish to raise and close any of the issues that were identified from that plan.
2. As previously discussed with yourself and the team, the RMU now has a requirement to report monthly to the Board of Directors and CE on it [sic] workers compensation and rehabilitation performance.
We also have a Service Level Agreement with the Ministry of Health to report on a monthly basis on the LHD performance this includes workers compensation and claims management for the organisation. The LHD is measured and rated on its performance to ensure it does not fall below performance expectations. General Managers also report on their workers compensation and service provision performance on a monthly basis to the CE. This level of reporting was not conducted at SWAHS. As you know we have also introduced new procedures and system for the Rehab Coords to utilise to ensure better claims management and follow up with our injured workers.
3. From 11 dot points on the SWAHS PIP there are two similar issues that need to be addressed that will also appear on a new performance improvement plan. 1. Response to phone calls within 48hrs 2. Ensuring that file notes are documented appropriately, as your case notes can be called upon to defend a legal position and therefore must be accurate and informative.
Please note below date and venue for the rescheduled meeting:
L&D training room 2 Thursday 23.08.2012, 12.30pm”
On 12 September 2012 the worker returned to work for one day.
On 13 September 2012, the worker attended on Dr Megaly and complained he was feeling anxious and she recorded work related issues of victimisation. That same day, Dr Megaly issued a WorkCover NSW Medical Certificate certifying the worker unfit to work from 16 August 2012 to 27 September 2012. She diagnosed the worker with “Post Traumatic Syndrom [sic], Depression and anxity [sic]”.
In evidence is an “Initial Notification Form”, completed by the worker and Mr Baker, dated 13 September 2012. In that form under “How the injury occurred” is recorded “RECURRING HARASSMENT BY MANAGER”. Under “Details of injury” is recorded “VICTIMISATION AND HARASSMENT”. “Work” is nominated as the accident location and the date of injury is identified as 16 August 2012.
On 26 September 2012, the worker completed a “Worker’s Injury Claim Form”. He described the injury as: “Post Traumatic Syndrome, depression and psychological injury”. As to how the injury happened he recorded: “Recurrent harassment and victimisation”.
Following concern raised by the worker’s sister, when the worker was at her place of residence, on 11 October 2012, an ambulance attended and escorted the worker to Bankstown Hospital for assessment. The Ambulance Electronic Medical Record, dated 11 October 2012, records:
“[The worker] has been diagnosed with Multiple Sclerosis that has been affecting his frontal lobe region. There has been recent work/social issues in his life. Family tonight state he has become agitated. They have observed his moods ranging from high to low. He has been irrational in his thoughts, jumping from one thought to another. Hes [sic] speech has been moderately faster…. He appeared emotional[ly] distressed, exhausted and crying…”
The clinical notes from Bankstown Hospital, dated 12 October 2012, record that on 11 October 2012 the worker was referred because “Family concerned of Pt mental state, according to family Pt has become increasingly agitated mood ranging from hi to lo”. A history was there recorded that the “33 y.o male has been diagnosed w/ multiple sclerosis” and that “[a]ccording to sister pt is under stress due to bulling at his work place, & due to lack of support from his management. According to sister Pt has been having this problem for the past 3 years with his job”. Those notes also record that the worker had “presented to Bankstow[n] ED on 14/7/12 for [increased] anxiety...work related issues”.
On 26 February 2013, the worker was assessed by Dr Jeanette Stewart, clinical neuropsychologist. Dr Stewart prepared a report, dated 16 April 2013 for Dr Hodgkinson, the worker’s treating neurologist, where she recorded a history of “alleged bullying and harassment leading to psychological injury”.
Dr Stewart states that the worker’s “employers had raised concern regarding his behaviour with his peers and managers, inability to time mange, length of time spent away from the office on site visits and inability to effectively manage his claims portfolio”. Under “Summary & Impressions” (emphasis included in original) Dr Stewart records:
“[The worker’s] neuropsychological profile is characterised by low average to average intellectual functioning that is falling below expectations based on his level of education and occupational attainment. His memory is also falling below expectations, particularly in the verbal domain. In addition, there is evidence of deficits in executive functioning and self-reported symptoms of depression. It is less likely that his current performance is reflective of his pre-morbid abilities based on his education and tertiary qualifications. His performance on the TOPF however did predict low average range intellectual ability. Nonetheless, his current cognitive performance is more likely reflective of organic change secondary to his diagnosis and radiological findings, but possibly also in terms of psychological factors.
[The worker] appears to be lacking insight and therefore making external attributions in terms of his difficulties in the workplace. There is evidence of poor executive functioning that would normally create difficulties for an individual with his level of responsibility. It is probable that these factors may have been etiological in at least some of the difficulties he has encountered at work. This would also appear consistent with his presentation and difficulties providing a succinct account of his history and circumstances.
…
Based on the current results we would not be recommending that he works in an environment that has such a high demand on organizational abilities, but this of course can be reviewed pending further treatment for MS.”
On 24 April 2013, the worker saw Dr Graham Vickery, psychiatrist, at the request of Gair Legal. In a report, dated 24 April 2013, Dr Vickery recorded a history that:
“[The worker] reported that he had been placed on a Performance Improvement Programme (PIP) at Sydney West prior to his transfer to Napean [sic] Hospital in October 2011 however there had not been any continuation of this programme following the move.
…
[The worker] believed that the initial implementation of the PIP was unjustified and ‘I was only ever getting negative feedback associated’ with each of the 4 monthly meetings from June to October 2011 and which was ‘a particularly difficult time for me…’
[The worker] believed that he was being victimised as the other Rehabilitation staff were also not achieving the goals of the PIP however they were not being monitored or placed on a PIP.
[The worker] had been formulating return to work goals which he believed was providing ‘therapy’ for which he believed he was ‘punished’ in relation to the initial implementation of his PIP.”
Dr Vickery diagnosed the worker with “Obsessive Compulsive Disorder”. He stated that the worker’s incapacity had “occurred on the background of an Obsessional Compulsive Personality Type” which he found to be “constitutional in nature and is primarily genetically determined”.
Dr Vickery stated that “[The worker’s] employment is not the most significant contributing factor” to the diagnosis and that “this or a similar injury would have happened around the same time in the worker’s life, if he had not been in his employment”. He further stated that “[The worker’s] prognosis to return to his full capacity is guarded”.
On 1 May 2013, the worker saw Dr Hampshire, at the request of Shine Lawyers. In a report, dated the same day, Dr Hampshire recorded a history that the worker had been told, on the first day back at work following surgery in 2011, that he would be placed on a PIP. He records a history that:
“for some months [the worker] was required for [sic] meet monthly and that during that time he was essentially lectured and harassed and criticised for his poor work performance. He told me that he did not agree with the criticisms to which he was subject, and also told me that he was spending increasing amounts of time monitoring and documenting his behaviour in accordance with the PIP instead of working.”
Dr Hampshire added:
“Furthermore, [the worker] told me that when he changed jobs the PIP continued to be applied to him, and that when he went to his new job, his new immediate supervisor…Peta Fedeli…told him in the presence of Glinda Mullen words to the effect of ‘I know you are on a PIP so I can’t put you on a PIP, but I can certainly increase the demads of the PIP’ (they were [the worker’s] words, not those of Ms Fedeli). He told me that Ms Fedeli was either sneering or laughing or mocking [the worker] when she said those words.
To the best of his memory, that incident occurred in October 2011 when he was transferred and when the PIP stayed in place.
He told me that in January 2012 he was informed that Ms Fedeli wanted to continue the PIP and that [the worker] then requested a meeting to clarify this. He told me that meeting never occurred.
[The worker] told me that in April 2012 a new manager arrived, one Anne Forsyth. He told her that he was on a PIP and that at this stage Peta Fedeli mockingly said to him ‘I can’t carry the PIP over, but I will make sure it sticks even more’.
He told me that in May 2012 he requested a meeting with his director (Brian Beatty and Peta Fedeli), but that only Brian Beatty was in attendance at the meeting and he indicated that [the worker] was still on the PIP.
In response to my direct questioning, he told me that his feedback on the PIP in the monthly meetings had long since ceased to occur and that he felt that he was unable to alter his workplace behaviour in any way which would have the PIP removed.
He told me that he felt extremely harassed and felt that he was being personally victimised. He was unable to tell me what way his behaviour was substandard.” (emphasis included in original)
After stating that he had “no doubt that [the worker] was harassed and bullied in an extremely aggressive manner”, Dr Hampshire said:
“His being placed on the PIP was at best problematic, and the fact that he was only supervised on the PIP for two or possibly three meetings but left on the PIP for months going into years, was nothing short of persecutory. I am familiar with the nature of PIP’s and they are not to be used as a persecutory and bullying instrument, but as an instrument in which they can either assist the employee to improve their workplace performance, or used in the assistance of passage of the employee to leave that form of employ. None of this happened with [the worker]. His supervision was at best extremely poor and the PIP’s were extraordinarily transferred from hospital to hospital with new supervisors, however he only ever received supervision for the first few months of the PIP. Furthermore, it is extremely difficult to isolate exactly what issues caused this man to be put on the PIP in the first place. I have seen the document which is lengthy, verbose, picky and problematic at best, persecutory at worst. This man presents as an extremely diligent, honest and committed man and these experiences for him were extremely traumatic. I am not surprised that he developed a severe Adjustment Disorder with depressed mood and possibly even a Major Depressive Disorder.”
Dr Hampshire further said that:
“There is no doubt that by June/July 2012 his diagnosis of multiple sclerosis was established, but he did return to work following this for around a month before ceasing work on 16 August 2012 because of work-related issues, not because of his multiple sclerosis. He has not returned to work since that time and his psychiatric symptoms have settled very considerably since that time, which is consistent with the diagnosis of an Adjustment Disorder with stress-induced psychosis.”
After reviewing the report of Ms Fedeli dated 19 September 2012, Dr Hampshire concluded: “far from offering support and assistance, [Ms Fedeli] and her colleagues were extremely persecutory in their approach to [the worker] which undoubtedly led to his developing the severe psychiatric illnesses which subsequently led to his frequent and recurrent admissions”. He then states that there was “clearly no resolution to this PIP” and that upon his transfer from the Western Area to the Nepean Area it was made very clear to him that the PIP would stay attached to his workplace record, “but nowhere in the supporting documentation or in the history I gathered from [the worker], is there any evidence that any efforts were made to remove this PIP.”.
Dr Hampshire said that “[v]ery little care was taken in managing this man through his PIP, pointing out to him his poor performance indicators and failing to point to him when his work improved. Furthermore, that PIP went on for an excessively long period of time.”. Dr Hampshire found:
“it extraordinary that this man’s PIP from his previous employment [was] transferred to his new employment, without any supervisor being put in place to organise this crude instrument. I find this one of the major reasons that led to his Adjustment Disorder with depressed mood and anxiety, and it may well have been one of the causative factors that led to his psychosis, although one obviously cannot rule out the presence of multiple sclerosis, yet as I have pointed out, MS presenting for the first time as a psychosis occurs on average in only 1.75-2.5% of the population.”
Dr Hampshire said that the “Adjustment Disorder with depressed mood, possible Major Depressive Disorder and possible stress-induced and/or multiple sclerosis-induced psychosis” had sufficiently settled such that when he examined him he was free of any “significant psychiatric illness”. He assessed the worker with a 22 per cent whole person impairment. After deducting three per cent for his multiple sclerosis he found the worker to suffer a 19 per cent whole person impairment which “is highly applicable to the extreme harassment and bullying he suffered for a number of years in the workplace”.
In a supplementary report, dated 24 June 2013, answering specific questions, Dr Vickery stated:
“On the basis of the reports by the Neuropsychologist Dr Jeanette Stewart and the Neurologist Dr Hodgkinson it is evident that [the worker’s] cognitive impairment due to his demyelinating disease (tumour reactive Multiple Sclerosis) had impacted on his teaching and has resulted in incapacitating symptomatology.
It is my opinion on the basis of all of the available information that [the worker’s] employment is not and has not been a substantial contributing factor in his condition. His psychiatric incapacity had resolved in late 2012 and it is his cognitive impairment related to his Multiple Sclerosis which is currently incapacitating.”
Dr Vickery found the worker to suffer a five per cent whole person impairment which, in his opinion, is “due to is pre-existing condition, and is not considered to be work related”.
On 20 August 2013, Dr Kasey Metcalf, consultant clinical neuropsychologist, at the request of the worker’s employer, assessed the worker’s neuropsychological functioning in regards to his medical fitness to carry out duties. On 3 September 2013, Dr Metcalf prepared a report in which she detailed a comprehensive history, including that the worker “began to have ‘problems’ at work in 2010 at Western Sydney which escalated at NBLHD when restructuring had taken place. He did not provide detail regarding his workplace issues”. She concluded that “[the worker’s] cognitive profile suggests that he will have difficulty competently undertaking the role of a Rehabilitation Coordinator without support and supervision.”.
Dr Megaly provided a report, dated 1 February 2014, at the request of Shine Lawyers. In that report, Dr Megaly recorded a history that:
“In 2011 [the worker] was put on [a] Performance Plan without any strong reason or clarification for the reasons to be in performance improvement plan. The PIP extended from early 2011 until his illness in August 2012 and until he had his unfair dismissal early 2013. This unfair PIP extended even after changing the work place and changing the supervisor without being given any notice for any wrong performance, behaviour or duties, he hast [sic] been invited to attend any meeting to assess his behaviour at work or his duties or performance. It has been extended even after being admitted to Liverpool Hospital with the diagnosis of Multiple Sclerosis. He returned to work where he was still being on PIP with continuation of harassment and criticism.”

Dr Megaly commented that the worker’s “Multiple sclerosis illness has no effects on his anxiety or depression” and that “his previous work environment from harassing, criticism and Performance improvement plan for two years without any assessment, evaluation or guide was the main reason for his anxiety, depression and psychosis.”. She added that “the Multiple sclerosis has been deteriorated due to the work environments including harassment and criticism without getting any help or support from his supervisor”.

Excessive hours

Between July and November 2010, the worker alleges that he “stayed at work between 6.30pm and 10pm, and would take work home even on weekends in the endeavour to be up-to-date with the caseload” (see the worker’s statement dated 25 November 2013 at [29]). He further states that he “provided carbon copy emails to Andrea Williams, General Manager of Springwood/Blue Mountains District Anzac Memorial Hospital, Jill Marjoram, General Manager of Lithgow Hospital, and Marie Clarke, Director of Nursing of Nepean Hospital” (see also the worker’s statement made on 10 October 2013 at [3.1.6]). Those emails referred to above are not in evidence.
On or around late July or early August 2010, the worker met with Ms Williams. The worker informed Ms Williams that he “felt that the workload was excessive for any one and that [he] would not be able to fulfil [his] role correctly.” (see the worker’s statement dated 25 November 2013 at [30]).
In the minutes of the meeting, of 28 June 2011, to discuss the implementation of the PIP, it is there recorded that “[the worker] – has raised excessive workloads”.
Ms Fedeli, in her statement dated 28 May 2013, said (at [3]) that the worker’s “elected hours of start and finish times had not changed with his transfer of employment. His hours of work are from 8.30am to 5.00pm” and that he “has never provided [her] with a completed [Time in Lieu] sheet for working past normal hours” ([4]–[5]). Ms Fedeli said (at [6]) that she would have been aware if the worker was working back past his normal 38 hour week as she is “generally in the office before 8.00am and usually stay[s] past 5.30pm and close the office for the day”. Ms Fedeli added that the worker rarely worked past 5 pm unless he came in late due to heavy traffic on the way to work, in which case he would make up the time at the end of the day.
Ms Hoson, in her statement dated 30 September 2013, said (at [16]) that she strongly refutes the claim that the worker worked extra hours noting that she “was always first in of a morning as was [her] choice and more often than not the last person to leave in the evening”.
Ms Mullen, in her statement dated 17 February 2014, said (at [7]):
“[The worker] was given a very low amount of files when he started in the Unit. He was given 3 months to acquaint himself with the workers’ conditions. He took an inordinate amount of time over each file…”
As to the hours of work the worker typically worked, Ms Mullen said (at [9]):
“he arrived at 8[.]30 am and many times when I worked late [the worker] was not there after 5 or 6 pm….Staff were not encouraged to take work home or stay late.”

THE ARBITRATOR’S REASONS

The Arbitrator identified the issues in dispute in the arbitration proceedings as:
(a)     whether the applicant sustained an injury pursuant to s 4 of the 1987 Act;
(b)     if so, was the employment a substantial contributing factor pursuant to s 9A of the 1987 Act;
(c) if so, whether the NBMLHD had a viable defence under s 11A of the 1987 Act;
(d)     if so, whether the applicant had suffered incapacity in the open labour market, and
(e)     the quantum of any incapacity.
With respect to the worker’s reliance upon the allegation that he was unreasonably subjected to a prolonged PIP, the Arbitrator noted at [40] of reasons, that the worker’s case at arbitration was that he was beset with a PIP soon after he returned to work after surgery in June 2011. It was on the basis of the PIP that Dr Hampshire and Dr Megaly appear to have formed their opinions and therefore it is an essential limb of the worker’s case. The Arbitrator considered in some detail the evidence in relation to the PIP, including the evidence of the worker, Ms Hosen, Ms Fedeli and Ms Mullen.
The Arbitrator stated (at [59] of reasons) that the worker’s deemed date of injury was pleaded as 16 August 2012. She noted that this date was only two months after his diagnosis of psychosis, resulting from a diagnosis of multiple sclerosis.
The Arbitrator found (at [60]–[61] of reasons), applying the principles in Nguyen v Cosmopolitan Homes [2008] NSWCA 246, that she did not feel an “actual persuasion” or “a strength of conviction” that the worker was beset with a PIP and remained on it for the duration of his employment.

The Arbitrator stated (at [61]):
“it appears to me there is a huge chasm between the evidence of the applicant and that of the respondent’s witnesses being Helen Hosen, Peta Fedeli and Glinda Mullen in relation to the PIP and work generally. Given that there are three witnesses for the respondent, whose evidence is all consistent with one another, I do not believe that [the worker] has discharged the onus of proof in relation to allowing me to make factual findings as he seeks – that is that he was beset with a PIP and remained on it for the duration of his employment. It is difficult to reject the evidence of the three respondent witnesses without a valid and compelling reason. This is particularly so where there is contemporary email correspondence that supports a finding that the applicant was not on a PIP as alleged, see emails dated 30 July and 17 August 2012.”
The Arbitrator stated (at [62] of reasons) that she was not prepared to make a finding that the worker’s diagnosis had caused him to make an error in the belief that he was still on a PIP. The Arbitrator held that there was simply not enough evidence to support such a finding.
The Arbitrator concluded (at [63] of reasons) that the assumptions upon which his “medical case” relied, that is, of an enduring PIP, had not been proven.
Due to the fact that Dr Megaly and Dr Hampshire both relied upon an acceptance of an enduring PIP, which the Arbitrator did not accept, she found at [66] that their opinions “do not carry any great weight”.
The Arbitrator found that the worker had not discharged the onus of proving that he suffered an injury under s 4 of the 1987 Act.

SUBMISSIONS

The worker’s submissions

Ground one

The worker’s submissions are in large measure a paragraph by paragraph summary of the Arbitrator’s analysis of the evidence and findings. In so far as the submissions support any allegation of error by the Arbitrator, they are to be found in the following extracts from the submissions:
“(12) Thus the appellant submits that the Arbitrator’s focus in relation to [the worker’s] psychological injury at [the worker’s] place of work, was the Performance Improvement Plan, over and above any other factor. That limited cause was not the appellant’s case. The appellant’s case was that it was not only the Performance Improvement Plan which caused his stress and anxiety and psychological injury, but overwork and harassment and failure to provide guidance and instruction to him from the outset as to how to perform his workload and failure to assist and meet with him in a co-operative and helpful way in addition to the Performance Improvement Program (PIP).
…
(14) Thus the applicant submits that it seems that according to the evidence recorded from the statements of Peter [sic] Fedeli, the applicant was beset with a PIP that remained for the duration of his employment. If that be so, the assumed facts upon which Dr Hampshire and Megaly premise their opinions can be accepted, and their opinions given the evidentiary weight they deserve.”

Ground two

The worker repeats the submissions in relation to ground one and relies upon a chronology of events he compiled, attached to an Application to Admit Late Documents, dated 27 May 2013. That chronology lists a sequential history of work events and alleged abuse of the worker during the period between 2009 and 16 August 2012.
The worker submits “the Arbitrator failed to consider the evidence of abuse and wrong dealing with him by officers of the respondent as contained in that chronology which, in addition to the imposition on him of the PIP from mid-2011, also contributed to his psychiatric state”.
The worker submitted that the issue of causation must be determined based on the facts of each case. What is required is a common sense evaluation of the causal chain (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463). The worker submitted:
“The applicant has made very specific allegations in relation to the manner in which she [sic] was treated by his superiors at both area health services, not only in his chronology, but in statements and histories provided to Dr Hampshire and Dr Megaly, and in more general terms in the histories recorded by his treating doctors.”
Although Mr Hickey conceded, during the course of the teleconference on 4 August 2014, that s 9A of the 1987 Act has no application in the circumstances of this case, particularly given that Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Limited [2009] NSWCA 324 was decided by the Court of Appeal well before the amendments to s 4 arising from the Workers Compensation Legislation Amendment Act 2012, he presses the following submission (at [25] of the notice of appeal).
“Now the main contributing factor test requires a greater level of contribution from the employment than the ‘substantial contributing factor’ test. The employment must be more than ‘substantial’ a term which takes into account other factors of a lesser degree that may contribute to a condition. In the case of a disease, the employment must now be the principle, chief or main cause of the disease. I submit that you would be satisfied that the evidence establishes a causal connection between [the worker’s] injury and his employment, such that [his] employment with the respondent, was the main contributing factor to his psychological injury as required by s 9A of the 1987 Act.”

NBMLHD’s submissions

Ground one

The Arbitrator’s finding that the applicant was not on a PIP was open to her and should not be disturbed on appeal.
The critical evidence is set out in paragraphs [1]–[58] of the reasons. No complaint is made in relation to the evidence considered. Rather, the worker submits that the Arbitrator having considered that the evidence should have reached the conclusion that he was “beset with a PIP that remained for the duration of his employment”.
Ms Fedeli’s evidence is that she told the worker in February 2012, that the PIP put in whilst he was employed at the SWAHS would not be continued in respect of his employment at NBMLHD. The worker did not deny that the conversation took place or that he was told that he was not on a PIP. The emails referred to above at [54] and [59] are consistent with the conversation having occurred earlier.
As one of the essential assumptions underpinning the worker’s medical case, had not been made out, namely that he was subject to an enduring PIP, the Arbitrator was entitled to regard Dr Hampshire’s report and Dr Megaly’s opinions as carrying little weight.

Ground two

The Arbitrator’s reasons clearly identify that she considered the worker’s allegation that there were “other” events alleged to have caused, or contributed, to his condition, other than his allegations of an enduring PIP. This is demonstrated by the Arbitrator’s comments at [2–5, 22, 25, 31, 43 and 46 of reasons].

The Arbitrator was correct to form the view that the “critical” allegation at least in terms of causation related to the imposition, and continuance of, the PIP. When the worker referred to other events, the crucial aspect of the worker’s bullying allegation related to the PIP. That was the “principle” causative event said to give rise to the injury. More over Drs Hampshire and Megaly appeared to have approached the matter on that basis.

DISCUSSION AND FINDINGS

The worker was placed on a PIP in June 2011 in response to issues concerning his interaction and behaviour with his colleagues and an inability to time manage, particularly the time spent away from the office on site visits and difficulties effectively managing his portfolio of claims. There is no dispute that the worker’s performance against the PIP was subject to formal evaluations on 9 August 2011, 6 September 2011 and 24 October 2011.
Ms Fedeli’s evidence, which was not challenged and which the Arbitrator accepted, was that she informed the worker in February 2012 that his performance would not be assessed against the PIP that was put in place whilst he was employed at SWAHS, because the majority of the issues with which it was concerned were no longer relevant to his work with the NBMLHD and it did not address the operational requirements of his new position. Ms Fedeli stated that she confirmed this with the worker on many occasions during the early part of 2012 (see [45] above).
Although the worker told his doctors that he was subject to a PIP for the duration of his employment, the objective evidence does not support that assertion. Ms Fedeli’s email of 2 May 2012 to the worker refers to a proposed meeting to progress a performance management plan.
The email exchange of 30 July 2012 between Ms Fedeli and the worker confirmed the intention to develop a new plan relevant to the worker’s current employment and job requirements. In response to that proposal the worker demanded to know the purpose and detail of the proposed meeting before agreeing to participate in it.
The worker demanded, on 5 August 2012, that he be provided with a written response to various issues equivalent to “the proposed performance indicators before completing the “form 2”. The “form 2” was a document required to be completed by him as a precursor to the development of a new performance plan. If the worker was being monitored against the SWAHS PIP there would have been no necessity to provide the information required by the “form 2”. This is further objective evidence that the existing PIP was no longer in force and attempts were being made at this time to develop a new plan relevant to the demands of his then current employment.
Ms Fedeli’s email of 17 August 2012 to the worker is further confirmation that Ms Fedeli had, on several occasions, advised him that the PIP from his previous employment at SWAHS would not be used as the performance plan for NBMLHD.
The email exchanges to which I have referred were in evidence in the proceedings before the Arbitrator. The arbitration hearing on 11 October 2013 was adjourned at the worker’s request to afford him the opportunity of providing a detailed statement of evidence. The worker subsequently lodged a statement of evidence and did not deny the content of the email exchanges to which I have referred.
The evidence of Ms Fedeli in particular, confirmed by the various email exchanges to which I have referred, support the conclusion that it may have been intended that the SWAHS PIP would continue to apply to him after his transfer to NBMLHD in October 2011. However, by February 2012 it was recognised that only two of the areas requiring performance improvement on that plan, were relevant to his employment at NBMLHD. This was communicated to the worker by Ms Fedeli in February 2012 and thereafter attempts were made to develop a plan that was relevant to his employment at NBMLHD.
The objective facts do not support the worker’s submission that the PIP that was developed whilst he was employed at the SWAHS remained in place for the duration of his employment.
For these reasons, the conclusion reached by the Arbitrator (at [61] of reasons) that the worker had not discharged the onus of proving that the PIP remained on foot for the duration of his employment, was correct and does not involve error.
Dr Hampshire’s very detailed report made a number of references to the fact that the worker had been placed on a PIP and left on it for the duration of his employment (pp 21, 25, 26 and 27). He described the continuance of the PIP on several occasions as persecutory. Dr Hampshire concluded (at p 27) that this was one of the major reasons that led to the worker’s adjustment disorder with depressed mood and anxiety. Moreover, Dr Hampshire concluded (at p 26) that to his understanding, the worker was still subject to the PIP in August 2012 when he ceased work.
The history provided to Dr Hampshire by the worker was not correct. The evidence to which I have referred demonstrates that in February 2012, the worker was told that he would not be subject to the PIP. This was confirmed in at least two emails to the worker. The first was an email from Ms Fedeli on 30 July 2012, in which she referred to the development of a new plan. The second email from Ms Fedeli was on 17 August 2012. It confirmed that the worker had been told on several occasions that the PIP from his previous employment at SWAHS was not to be used as the performance plan for NBMLHD.
It is now well accepted that the facts assumed by an expert do not have to correspond “with complete precision” with the facts established. However, the facts upon which the expert relies must be “sufficiently like” the facts established to “render the opinion of the expert of any value” Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85; 59 ALJR 844.
For the reasons I have outlined, the fundamental premise underlying Dr Hampshire’s opinion was that the worker was held to the PIP from June 2011 until he ceased work in August 2012. For the reasons given, that fact has not been established and is contrary to the accepted evidence, namely that it was recognised by early 2012, that the PIP was no longer relevant to the worker’s employment and that he was told that he would not be held to it. For that reason, the Arbitrator was correct to find (at [66]) that Dr Hampshire’s opinion did not carry any great weight.
Similarly, Dr Megaly’s opinion is premised on the understanding that the worker was subjected to a PIP from early 2011 until his illness in August 2012. For the reasons I have identified, there is no factual foundation for that premise, and therefore it was open to the Arbitrator to find (at [66]) that Dr Megaly’s opinion did not carry a great deal of weight.
For these reasons, ground one of the appeal must fail.
The worker’s second ground of appeal alleges that the Arbitrator erred by failing to consider evidence of abuse and wrong dealing by officers of the respondent as contained in his chronology of events. The relevant submission made by Mr Hickey to the Arbitrator (at T15.5 of 24 February 2014) was in these terms:
“the summary of the worker’s complaint against the employer in terms of harassment, bullying, etc., is that throughout his employment he alleged that he was somewhat over-worked. He was not given proper instruction as to his precise role and what it involved in terms of day to day record keeping and activities until later in the piece.”
The Arbitrator acknowledged (at [5] of reasons) the worker’s allegation of overwork and bullying by his supervisors, although she quite rightly identified that the focus of his complaint was on the maintenance of an unreasonable PIP, rather than bullying more generally.
The Arbitrator also acknowledged that the worker had complained to his sister that he felt very distressed and preoccupied by his work. She further noted (at [25]) that the hospital notes of his admission on 12 October 2012 referred to complaints of workplace bullying and harassment. The same history is contained in Dr Megaly’s reports which the Arbitrator noted (at [31]).
Aside from making these general complaints, the evidence of workplace bullying or harassment, or indeed overwork, is scant. Mr Hickey’s submissions refer in general terms to the worker’s chronology, but fail to identify any particular episode or episodes in support of his submissions.

The worker said that he was required to stay at work between 6.30 pm and 10 pm and that he took work home on week-ends in the period between July and November 2010. It is evident that the worker made general complaints from time to time that he was overworked. However apart from alleging that he worked excessive hours, he has not provided any other compelling evidence in support of an allegation of harassment or bullying.
Ms Mullen denied any suggestion that the worker was overworked, indeed her evidence is that he was given a very small number of files when he first commenced work at the SWAHS. As to his hours of work, Ms Mullen stated that he generally arrived at work at 8.30 am and was not there after 5 or 6 o’clock, which was when she normally left work for the day. Her evidence was unchallenged.
Ms Fedeli’s evidence, which was also unchallenged, is that the worker’s hours of work were from 8.30 am to 5.00 pm. He never sought compensation in terms of time in lieu of working excessive hours. She also stated that she would have been aware if the worker was working beyond the normal 38 hour week as she generally commenced work at 8.00 am and left after 5.00 pm and would have been aware if the worker had been working beyond those hours. Ms Hoson also strongly refuted the worker’s claim of excessive working hours (see [87] above).
The Arbitrator made no finding concerning the worker’s workload as a contributing factor to the contraction of his disease. That is unsurprising as she was not invited to do so. Even if it is accepted that the worker worked excessive hours for a period in 2010, that ceased in November 2010, which is almost two years before the deemed date of injury. There is no evidence to support a finding of excessive working hours after 2010, nor is there any expert evidence of a causal connection between working excessive hours and the onset of the worker’s condition. Therefore, if the Arbitrator erred in not dealing with this issue, it makes no difference to the outcome.
As NBMLHD submit, the Arbitrator noted the worker’s allegations of recurring harassment and victimisation as a causative factor leading to his condition. However, again, no evidence was led that the worker was harassed or victimised (other than through the PIP). Moreover, no relevant submissions were made to the Arbitrator which would support a finding that harassment and victimisation caused the worker’s condition, much less, were the main contributing factor to its contraction. In these circumstances, the Arbitrator was not required to deal with the issue in any more detail than she did.
For these reasons ground two also fails.
The Arbitrator was not satisfied that the worker discharged the onus of establishing that he suffered an injury within the meaning of s 4 of the 1987 Act. That finding was open to the Arbitrator and does not involve error.
Although the Arbitrator was not called upon to make a finding as to the cause of the worker’s condition, the evidence is that the deemed date of injury of 16 August 2012, is some two months after the worker was diagnosed with multiple sclerosis. Dr Vickery was firmly of the opinion, based on a neuropsychological assessment, that the worker’s condition was due to cognitive impairment secondary to his demyelinating disease. Even Dr Hampshire did not discount that possibility.
It is highly likely that the worker’s multiple sclerosis diagnosis, was, for the reasons given by Dr Vickery, the main cause of his psychological injury, although I make no finding to that effect.

DECISION

The Arbitrator’s determination of 5 May 2014 is confirmed.

COSTS

Each party is to pay his or its own costs of the appeal.

Judge Keating
President

13 August 2014

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

ASSOCIATE