Patsalis v Allstaff Australia Sydney Pty Ltd - [2024] NSWPICPD 60

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Patsalis v Allstaff Australia Sydney Pty Ltd [2024] NSWPICPD 60
APPELLANT:	Andrew Patsalis
RESPONDENT:	Allstaff Australia Sydney Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W7896/23
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	17 September 2024
ORDERS MADE ON APPEAL:	1. The time for the respondent to lodge its submissions is extended to 3 May 2024. 2. Leave for the appellant to amend Ground Two of the appeal is granted. 3. Leave for the appellant to add additional grounds of appeal following receipt of the transcript is refused. 4. The Member’s Certificate of Determination dated 1 March 2023 is revoked. 5. The matter is remitted to a different Member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – the opportunity to make further submissions on receipt of the transcript is not one in which a party is given the liberty raise new grounds of appeal – University of New South Wales v Lee [2021] NSWPICPD 4; BBY v The GEO Group Australia Pty Ltd [2023] NSWPICPD 60 applied – adequacy of reasons – Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Roncevich v Repatriation Commission [2005] HCA 40; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied – procedural fairness – Stead v State Government Insurance Commission [1986] HCA 54 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M Mylonas
Respondent:
Ms L Goodman, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Patsalis v Allstaff Australia Sydney Pty Ltd [2024] NSWPIC 99
MEMBER:	Ms L Drake
DATE OF MEMBER’S DECISION:	1 March 2024

INTRODUCTION AND BACKGROUND

Mr Andrew Patsalis (the appellant) was employed by Allstaff Australia Sydney Pty Ltd (the respondent) as a voice picker (a worker who performs picking work for product orders at the instruction of automated directions delivered to a worker by way of headphones). The appellant was employed to work at the Woolworths Distribution Centre, Yennora, from 22 February 2012 until 27 July 2012.
The appellant had a prior history of schizophrenia.
The appellant lodged a claim for workers compensation on 17 February 2022, asserting that he suffered an aggravation of his schizophrenia as a result of being bullied in the workplace. The respondent disputed the claim, denying that the appellant suffered an injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act), that the appellant’s employment was the main contributing factor to the injury in accordance with s 4(b) of the 1987 Act and because the appellant had failed to give notice of the injury or make the claim within the time prescribed by s 254 and s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The appellant commenced proceedings in the Personal Injury Commission, claiming lump sum compensation in respect of 21% whole person impairment pursuant to s 66 of the 1987 Act. The dispute proceeded to arbitration. The Member determined that she was not satisfied that the appellant’s schizophrenia was aggravated by the appellant’s employment and entered an award in favour of the respondent.
From the commencement of the proceedings in the Commission, up to and including the arbitration hearing, the appellant was legally represented. He is not legally represented in this appeal. He has, however, authorised his brother, Mr Michael Mylonas, to represent him in the appeal. Mr Mylonas is not legally qualified.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
The respondent indicates that an oral hearing of the appeal is not required, and the appeal can be determined ‘on the papers.’ The appellant indicates that the appeal cannot be determined on the basis of the written material lodged in the Commission. No submissions were provided to explain why the appellant took that view, other than a reference by the appellant to a potential application to cross-examine the respondent in future litigation in respect of its reasons for failing to lodge its Notice of Opposition to Appeal Against Decision of Member (opposition) within the time frame set by a delegate of the President.
The appellant provided comprehensive written submissions in support of his grounds of appeal and the respondent has provided its written submissions in response to the appeal. I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties as to whether the appeal can proceed to be determined on the basis of those 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The respondent, however, lodged its opposition outside of the timeframe set by a delegate of the President.
The Delegate directed the respondent to lodge its opposition by 30 April 2024. The respondent lodged the opposition on 3 May 2024, seeking leave to do so because it was out of time and making submissions in support of its application for the extension of time. On 6 May 2024, the Commission advised the appellant that any submissions he wished to make in response to the respondent’s application for an extension of time for filing the opposition were to be made by 21 May 2024. On 6 May 2024, the appellant informed the Commission that he opposed an extension of time for the respondent to file its opposition. However, in his submissions dated 20 May 2024 in reply to the respondent’s submissions, the appellant indicated that he no longer opposed that application.
The respondent’s reason for seeking an extension of time to file its opposition was essentially that the respondent’s legal representative had mis-diarised the due date as 7 May 2024, which was the date by which the respondent was required to serve on the appellant a sealed copy of its opposition and supporting documentation. In usual circumstances, the failure to comply with a timetable set by the Commission because of error on the part of the legal representative in diarising the correct due date will not be sufficient reason to found an extension of time.[1] I note, however, that the delay was not significant, in that the opposition was filed and served by the due date for service and, if the extension was not granted, the respondent would be substantially prejudiced by being unable to defend the appeal. In those circumstances and taking into account the appellant’s position that he does not oppose the extension of time, the time for the respondent to lodge its submissions is extended to 3 May 2024.

THE EVIDENCE

[1] Bale v Mills [2011] NSWCA 226 (Bale).

The appellant’s statements

The appellant made a statement dated 31 March 2022 at the request of the respondent.[2] He conceded that he suffered from pre-existing psychological and psychiatric conditions and had a long history of schizophrenia, which was first diagnosed in 2005. He advised that the condition was managed with medication and then between 2008 and 2011 he was medication free. He said that since an incident in 2012, his condition was aggravated, and he was thereafter required to take daily medication. He added that his mother was also diagnosed with schizophrenia. He confirmed that he had not worked since 2012.
[2] Reply to Application to Resolve a Dispute (reply), pp 34–40.
The appellant gave details of his duties as a casual order picker with the respondent at the Woolworths Yennora site and said that, prior to early June 2012, he had no issues. He asserted that he had never had his work performance questioned.
The appellant stated that in about early June 2012, a number of permanent employees began bullying him, but he could not remember their names. He said that initially he was not troubled by the behaviour, but the bullying worsened, and he became stressed and anxious. He described the bullying behaviour, which included employees:
(a)    recklessly driving their pallet movers at him;
(b)    attempting to dislodge his picked orders and obstructing him;
(c)    calling him names and making racial slurs, and
(d)    talking about him amongst themselves, which embarrassed and humiliated him.
The appellant asserted that he had reported these matters to “Alexandria,” the respondent’s staff member, but he was not aware of any action taken by Woolworths or the respondent.
The appellant added that the Woolworths supervisors would favour the permanent employees and question his practices and placed blame on him for any errors. The appellant advised that on a particular day, after being exposed to this conduct for nine hours, an employee who was not known to him warned him to “watch his back.” The appellant said that about ten minutes later, there was an incident when he was driving an electric pallet mover and a forklift driver was driving in an unsafe manner and almost collided with him, only missing him by about ten inches. The appellant indicated that there was no one available to report the incident to and he finished his shift and went home. He said that despite being offered further shifts, because of the bullying he did not return to work.
The appellant reported that Alexandria telephoned him several times thereafter requesting him to perform further shifts and in one of those calls he advised Alexandria of the workplace bullying and explained that it was too unsafe for him to return to work at the Yennora site. The appellant described this as the “final straw.”[3] He said that as a result of the workplace behaviours he suffered a relapse of his schizophrenia.
[3] Reply p 39, [59].
The appellant stated that because he was in a “world of his own,” he did not know how to make a claim for compensation. He gave a brief overview of the medical treatment and other care provided to him since 2012 and said that his condition over the years had declined, he was unable to work, and he battled with his mental health daily. He described the effects of his injury.
The appellant provided a further statement dated 12 July 2023.[4] He gave details of his family background and his employment history prior to being employed by the respondent. He disclosed that he suffered a schizophrenic episode in 2005 when he believed that the television was talking to him. He said that his mother and brother called an ambulance, and he was taken to Bankstown Hospital. He indicated that he was hospitalised for two weeks and then received treatment as an outpatient at “Banks House” under the care of Dr Sidney Oen, psychiatrist, and Dr Casimir Liber, psychiatrist, through Bankstown Community Health Services. He recalled that he received antipsychotic injections for about three months and Zyprexia tablets (an antipsychotic medication) for two to three months, following which his condition improved and he achieved an “even course.” He indicated that following his improvement he no longer required any further medication, and he obtained work working 40 hours per week. He described various jobs that he pursued over the years without difficulty until about February or March 2012, when he obtained employment with the respondent as a “voice picker” working at the Woolworths Distribution Centre.
[4] Application to Resolve a Dispute (ARD), pp 1–15.
The appellant indicated that the work required him to wear headphones and a computerised order system would direct him through the headphones to the work he was required to perform. He said that in early June 2012, he began to have difficulties with the respondent’s staff and the staff employed by Woolworths Limited. He said he was subjected to harassment and bullying by other workers, and he was “targeted” by three or four other staff who were calling him names and swearing at him. He added that:
“I started to become afraid at work as other pallet operators and forklift drivers threatened me and began driving at me and very close to me in a ‘near miss’ manner in order to intimidate me when I was working. At times it seemed to me that these other operators were trying to dislodge my loads on my machine to intimidate and harass me. It was dangerous. I reported this adverse and threatening behaviour to the [respondent]. I was told ‘watch your back.’
I was threatened by Nick Allen.”[5]
[5] ARD, p 4.
The appellant stated that he reported this conduct to his supervisor, Alexandria, who said that she would speak to Mr Allen and would notify Woolworths’ staff of his complaints. The appellant indicated that he also had a dispute with another driver who asserted that he was first to an order when the appellant was there before him. He said that the argument became very heated and caused him distress. He advised that the Woolworths supervisor checked the closed-circuit television camera footage and then came to talk to the appellant about the incident. The appellant said that he continued to be called names and was verbally abused by the forklift and jack pallet drivers, and the behaviour affected his health and safety.
The appellant asserted that prior to this behaviour, his health had been stable, and he did not require medication to control his mental health. He said that the threats and dangerous use of machinery caused him to suffer, and his mental health deteriorated. He reported that he began to think that somebody else was talking to him over his headphones and overriding the computerised instructions he was receiving. He said that the overriding voices became worse, and he was having great difficulty in distinguishing between them and the computerised directions.
The appellant indicated that he arrived at a point where he was afraid to work and was feeling very unwell, so he went off work on 22 July 2012. He advised that he received an email of his roster to work over the following week and was called to go in to work, but he could not bring himself to leave home and felt he could no longer work because of the abuse and dangerous manner in which the other workers were operating the machines. He added that nothing was being done about that behaviour.
The appellant said that he began to consult Dr Oen again about one month before he stopped work because he had begun to hear threatening and abusive voices. He said that, at about that time he also began to experience hallucinations and paranoia. He reported that he thought the television was talking to him, which was worse than it had been in 2005, and he thought that car number plates had “meaning” to him. He advised that members of his family reported his condition and a community nurse attended and provided him with antipsychotic medication, which he commenced about two months after ceasing work. He said that he remained on that medication and was granted a Disability Support Pension.
The appellant stated that, despite the medication, he continued to experience hallucinations such as seeing mice in the corner of his eye and people staring at him through the window. He said that he believed that people were talking about him, he ruminated, and he paced around because he needed to keep moving. He said that he preferred to stay at home, he did not socialise, he did not sleep very well, and he continued to hallucinate and experience paranoia.
The appellant advised that, in addition to his admission to the acute psychiatric unit in 2005, he was also admitted in 2011, was diagnosed with chronic paranoid schizophrenia and thereafter prescribed with antipsychotic medication on an ongoing basis. He said that he had been consulting Dr Oen, psychiatrist, since 2017, Dr Stuart Saker, psychiatrist, and Dr K Y Wong, general practitioner as well as Mr Howard C Wiggins, psychologist.
The appellant stated that he had been unable to work since July 2012 because of the abuse and harassment received by him in the employ of the respondent. He asserted that his psychiatric condition had been stable up to that point but that his condition had not improved after he ceased work.
The appellant relied on an unsigned and undated hand-written document in which he contested the factual basis underlying the report of Dr Judith Clarke.[6] The appellant said that he told Dr Clarke that:
(a)    he was employed by the respondent for about five months until the end of July 2012;
(b)    he was hospitalised for a short time in 2005 and then again in 2011, following which he commenced full-time employment;
(c)    after he was discharged from hospital in 2005 he received psychiatric treatment and then did not require medication for schizophrenia until 2011;
(d)    he worked for a previous employer and obtained a certificate in warehousing immediately before he commenced employment with the respondent at the beginning of March 2012;
(e)    he had been bullied in the employ of the respondent, but could not provide further details to Dr Clarke because he was then asked a different question by her;
(f)    while he was on medication, he could not read more than a few lines without running out of breath;
(g)    he had been receiving medication since 2011, and
(h)    he had not disposed of the television (as Dr Clarke had recorded), but he just did not turn on the television.
[6] ARD, pp 41–59.
The appellant explained at length why he described to Dr Clarke that his finances were tight. He denied that his mother was in fact his carer and said that he had been caring for his mother since 1996. The appellant asserted that the bullying and harassment he experienced in the employ of the respondent caused him to be unable to ever work again. The appellant said that Dr Clarke acknowledged that he would not ever be gainfully employed. He said that while Dr Clarke observed that it was not possible to attribute the cessation of employment to the medication error, Dr Clarke did not take into account the fact that he had no interaction with Mental Health Services since 2014 because the interactions until then had been instigated by the family and since 2014, he has had no contact with the family.
The appellant denied that he ever said he had dental issues as a result of a motor vehicle accident. He also asserted that the entry in the clinical notes in 2007 was not a reference to him but rather involved his sister and her concerns about his brother Michael, who was at the time in gaol. He maintained that he and his siblings did not get along and the clinical records had nothing to do with his health but were the result of intervention from his family.
The appellant complained that Dr Clarke did not undertake a psychological assessment of him but simply conducted a review of the information. He said that the assessment was based solely upon family grievances and a reliance on his diagnosis of schizophrenia in 2005. The appellant described the approach as a “character assassination.”[7] He referred to Dr Clarke’s reference to his brother contacting Mental Health Services in 2008. The appellant advised that he was not hospitalised at that time and submitted that there is no evidence of him receiving any medical treatment by a general practitioner or psychiatrist between 2005 and 2011, and there was no follow up from any health care professionals.
[7] ARD, p 45.
The appellant referred to a charge laid by police in 2011 and advised that those charges were dismissed. He said that the only charge he had pleaded guilty to was an assault on a security guard at Bankstown and the outcome was that he was placed on a good behaviour bond for three years.

The appellant asserted that he had no idea that he had been placed on a Community Treatment Order in 2011 and nobody informed him, which was why he had been taken involuntarily to Banks House and was discharged after a short stay.
The appellant queried why Dr Clarke did not take into account that he survived between 2005 and 2011, during which period he was fully employed. The appellant said that Dr Clarke asked him about his criminal history, which he said disclosed that Dr Clarke was assessing his character, and she did not want to hear the details of the charges or the outcome. The appellant denied having ever assaulted his sister and said that his sister had never had broken ribs. He also denied that there were ever charges laid by his brother against him and said that he had never assaulted his brother. He added that his mother had never taken out an Apprehended Violence Order against him and those allegations were false.
The appellant pointed out that his marriage breakdown occurred in 2003 and it was his choice not to see his daughter. He said that he did not have his first episode of schizophrenia until 2005. He reiterated that from 2005 to 2011, he was performing work as a handyman and was supporting himself, his mother and his brother who was in gaol, and said that between 2005 and 2011, he had never received any form of government benefit. He added that there was nothing to explain why he had not been placed on a Community Treatment Order before 2011.
In respect of the allegation that he was given the wrong medication from June to October 2012, the appellant asserted that that was irrelevant to the fact that he ceased work. He said that the medication for schizophrenia has a life of 29 days, he last worked on 27 July 2012, so that the medication would not have started to work until 1 July 2012, when the symptoms of schizophrenia from bullying and harassment were not present. He said that there was no way a person with schizophrenia could perform the duties he was performing at the time. He maintained that the reason he stopped work was that he had been bullied and harassed, and he had reported his concerns to his supervisors, Alexandria and Nick Allen.
The appellant reiterated that he had had no contact with the Mental Health Services since 2014, and queried why his sister would have given him the power of attorney to manage her quite extensive estate if there were issues between him and his sister.
The appellant referred to Dr Clarke’s consideration of the history provided by him to Dr Liber in August 2012 that he ceased work because of under-performance, he otherwise enjoyed the work, and the staff were “fine”. The appellant asserted that Dr Liber made that entry in order to assist him in qualifying for a disability pension. He said that he had never been told he was under-performing, and the respondent had not produced any evidence to that effect.
The appellant asserted that the above information showed that Dr Clarke was biased and raised a reasonable doubt as to whether her opinion should be accepted. The appellant proceeded to provide reasons for not bringing his claim within the time prescribed by s 261 of the 1998 Act.
The appellant also referred to legal documents relied on in the proceedings in the form of his mother’s will, and in relation to his appointment as his sister’s power of attorney and enduring guardian.[8] He stated that those documents showed that he had a good relationship with his mother and his sister, and that his sister trusted him.
[8] ARD, pp 62–79.
On 18 October 2023, the appellant wrote to the Commission seeking to have those parts of the file from the Bankstown Mental Health Services excluded from proceedings that involved conversations with members of his family and in respect of those parts of the file that referred to criminal conduct.[9]
[9] ARD, p 61.
The appellant lodged a further undated document to which he attached various documents relating to court proceedings, which he said were all of the records from Bankstown Court that related to him. He maintained that the documents showed that he never assaulted his sister, he never assaulted his brother, and his mother never sought an Apprehended Violence Order against him.

Email from Ms Allexandra Ryan dated 8 April 2022

The respondent relied upon an email dated 8 April 2022 from Ms Allexandra Ryan (former employee of the respondent) directed to Mr Greg Alvisio, the respondent’s National Workers Compensation and Work Health and Safety Manager.[10] It is assumed that Ms Ryan is the person referred to by the appellant as “Alexandria.” Ms Ryan advised:
“As per our conversation earlier, I have no recollection of anyone by that name working for me or ever approaching me in relation to bullying or harassment.
Apologies for any inconvenience caused.”

The medical evidence

[10] Reply, p 42.

The Clinical records of Bankstown Community Mental Health Services

The respondent relied upon the clinical records of Bankstown Community Mental Health Services.[11] The appellant was referred to the Services on 26 June 2005, with a two-and-a-half-year history of isolating in his bedroom following the separation from his wife and daughter. It was noted that the appellant had poor sleep, poor hygiene, a loss of appetite, was observed to talk to himself and to the television, was verbally aggressive to his mother and had recently attacked his brother, Lenos. He was reported to behave in a guarded manner, was suspicious and possibly had disordered thoughts.
[11] Reply, pp 70–181.
On 6 July 2005, an assessment team from the Mental Health Services attempted to assess the appellant in his home but were unsuccessful because of the appellant’s guarded, threatening and hostile behaviour. It was recorded that there was no possibility to assess the appellant in the community, so the appellant was admitted to Bankstown Community Health Centre under police schedule. A referral was made for the appellant to be assessed by Dr Liber.
There was no discharge summary included in the documents, but it appears that the appellant may have been discharged after 2 July 2005.[12]
[12] Bankstown Community Mental Health Services records, reply, p 90.
During the following years, some contact took place between the Mental Health Services and the appellant and his family.
On 7 May 2011, a discussion took place between the Mental Health Services and the appellant’s brother, in which the brother reported unusual and aggressive, uncontrolled behaviours on the part of the appellant at home and in the local shopping centre, the latter event resulting in a charge for making “rude gestures” to a security guard. On 10 May 2011, the Mental Health Services received a copy of the appellant’s treatment notes from 2005 and noted that there had been a past breach of an Apprehended Violence Order involving the appellant’s mother in 2009.
The clinical records disclosed that on 27 May 2011, the appellant was assessed at his home by the Mental Health team in the context of the appellant isolating himself in his room, writing extensively about conspiracy theories and other unusual behaviour. The notes recorded on that day included reference to:
(a)    the “brief” admission in 2005;
(b)    in 2007, a visit to the appellant at home from a medical officer in response to a letter from one of the appellant’s brothers;
(c)    a further (unsuccessful) visit to the appellant’s home by the Mental Health Services in 2008 in response to a letter from another of the appellant’s brothers, and
(d)    the requirement for the appellant to attend court in 2010 in relation to his conduct involving the security guard.
The history recorded on 27 May 2011 noted that the appellant had “got rid of” the television and the radio in his bedroom and was spending his time reading and writing extensively about conspiracy theories, then discarding the writings before his family could read them. It was also noted that the appellant was socially withdrawn, had been gesturing to the television in order to communicate with it, and was verbally aggressive towards his family because of “persecutory delusions”, such as in April 2011 when he accused the family of conspiring to make their mother (who was in hospital) sick. Concern from the family about the appellant’s worsening symptoms, including paranoia, was also noted.
The notes recorded contact by the Mental Health Services with the appellant and his family on numerous occasions through June and July 2011. On about 21 July 2011, a Community Treatment Order was put in place and arrangements were made to administer antipsychotic depot medication (a slow release injection) in accordance with the Community Treatment Order. The appellant did not comply with the Order and was found to be in breach. As a consequence of the continued breach of the Order, on 7 September 2011 the appellant was escorted by police and Mental Health staff to Bankstown Emergency Department for admission. Following the admission, the appellant’s sister advised the Mental Health Services that she was concerned about the appellant’s reaction to any involvement by her in his treatment because about 12 years before, the appellant had kicked her and broken her ribs.
The appellant was discharged on 16 September 2011. The Mental Health Services continued to monitor the appellant’s progress and provided support to him, and he continued to be treated with antipsychotic medication at the Depot Clinic. From 11 February 2012, the appellant attended his general practitioner, Dr Brian Kurrle, who took over the depot treatment, which was to be administered once per month.
The appellant continued to attend the Mental Health Services until 5 April 2012, when case management of the appellant was discontinued because the appellant was no longer subject to a Community Treatment Order and was receiving his depot medication from his general practitioner.
On 1 August 2012, the appellant’s brother contacted the Mental Health Services, advising that the family were concerned that the appellant was experiencing a relapse, which may have been related to a reduction in the depot medication dosage. The brother reported that the appellant had left his job without explanation to the family, had been pacing the floor and had turned off his mobile telephone. The Mental Health Services contacted the appellant the following day. The appellant reported that he was having a short break from work and intended to resume employment in the short term. The Mental Health Services recorded that the appellant displayed no behavioural issues and reported no difficulties that would indicate that his condition had destabilised.
The appellant was examined by Dr Liber on 8 October 2012. Dr Liber took the history that the appellant had been working for Woolworths for about four to five months and had recently stopped work because he was “not performing up to standard” and he “otherwise enjoyed his work there [and] got on [with] staff fine.”[13] Dr Liber described the appellant as “settled” and “cooperative” and said his grooming was acceptable.
[13] Reply, p 125.
The Depot Clinic performed a file review on 15 October 2012 in order to ensure the appellant was continuing to be administered the antipsychotic depot medication, Sustenna. In a telephone call to the general practitioner’s surgery, a registered nurse from the surgery advised that the appellant was not receiving Sustenna 25 milligrams IMI every month but was instead given Sustanon 250 milligrams IMI. The note recorded that the surgery advised that the most recent Sustenna 25 milligrams dose was given on 8 June 2012. The notetaker described the issue as “medication error”. Steps were taken to ensure that the appellant received the correct medication as soon as possible.
On 23 October 2012, the registered nurse from Dr Kurrle’s surgery contacted the Mental Health Services, advising that the appellant had been administered the wrong medication for 6 months. It was noted that the appellant was acting in a delusional manner, was withdrawn and would not engage with the general practitioner. It was noted that the appellant’s family reported concern and said that the appellant appeared agitated.
On 24 October 2012, Dr Rachel Sharma from the Mental Health Services attended a home visit with the appellant. The appellant reported that his sleep was satisfactory, and he denied any psychotic symptoms. He said he was happy to engage with Dr Liber on an ongoing basis. The appellant’s mother advised that the appellant’s behaviour was good and said that he was staying at home and helping out by mowing the lawns. An ongoing care plan was prepared.
Throughout March and April 2013, the appellant was assisted with an application for a Disability Support Pension through Centrelink by a case worker. The case worker also assisted the appellant in respect of dental treatment and kept in regular contact with the appellant during 2013 and 2014, noting that the appellant was involved in a relatively minor motor vehicle accident, the appellant went on holiday with his family to Melbourne and he and his mother were involved in court action against a kitchen installer. The case worker noted that the appellant was continuing to receive depot antipsychotic medication and appeared well with no immediate concerns. In 2014, the appellant joined a social fellowship group.[14]
[14] Reply, pp 151, 154.
On 10 July 2019, the appellant contacted Bankstown Medical Health Services, seeking assistance from a psychiatrist to make a claim on his superannuation fund in respect of his invalidity. In a Handover Report marked to the attention of the Community Mental Health Team, the appellant was said to have reported symptoms of difficulty concentrating, decreased appetite, persecutory feelings, auditory hallucinations, anxiety and slow speech. The diagnosis was listed as schizophrenia, with an onset in 2005.[15] The Medical Health Services referred to the appellant’s mother having passed away five weeks earlier and noted that the appellant’s antipsychotic medication (Rexulti) had been reduced from 2 milligrams to 1 milligram by Dr Oen, and since the reduction the appellant had been experiencing auditory and visual hallucinations, paranoia, and poor sleep.[16]
[15] Reply, pp 167–169.
[16] Reply, pp 172–173.

The Yagoona Medical Centre

The respondent relied upon the clinical records of the Yagoona Medical Centre.[17] The following documents and entries in the clinical notes are relevant:
(a)    On 8 January 2012, Ms Rachel Heffernan, registered nurse from Bankstown Mental Health Services wrote to Dr Kurrle, attaching information about the appellant and advising that the appellant was to present to Dr Kurrle for his next depot injection, which was due on 8 February 2012.[18] The attached letter of referral dated 8 January 2012 provided a diagnosis as at September 2011 of post schizophrenic depression, and noted that the appellant had not received treatment for mental illness until July 2011 but had made “remarkable progress in the last 6 months.”[19]
(b)    On 24 October 2012, Dr Kurrle wrote a letter directed to “To Whom It May Concern.” He advised that the appellant had been prescribed Invega Sustenna 50 mg with five repeats on 11 February 2012 and believed that the appellant had received those injections, except that on 1 October 2012 the appellant was erroneously provided with a prescription for Sustanon 250 mg. Dr Kurrle indicated that the appellant received only one erroneous injection on 3 October 2012.[20]
(c)    In a follow-up letter dated 24 October 2012, Dr Kurrle advised that the appellant had received the correct medication from 2 April 2012, but the injections were erroneously recorded as Sustanon 250. He confirmed that the only erroneous injection the appellant received was on 3 October 2012.[21]
(d)    The clinical notes recorded by Dr Kurrle and other service providers at the Yagoona Medical Centre confirmed that the appellant was given the correct depot medication on 11 February 2012 and 8 March 2012. On 5 April 2012 and on 4 May 2012, the medication was described as an antipsychotic medication but recorded as “Sustanon.” On 8 June 2012, 9 July 2012, 4 August 2012, 6 September 2012, and 3 October 2012, the medication was described as an androgen (an anabolic steroid) and recorded as Sustanon. From 15 October 2012, following contact from the Mental Health Services, the Sustanon was ceased, and the appellant received a dose of Sustenna while at hospital.[22]
[17] Respondent’s Application to Admit Late Documents (AALD), pp 9–58.
[18] AALD, p 13.
[19] AALD, p 14.
[20] AALD, p 23.
[21] AALD, p 34.
[22] AALD, pp 36–40.

Dr K Y Wong, general practitioner

Hand-written clinical record cards recorded by Dr Wong disclosed entries in 2020, 2022 and 2023. The entries pertaining to 2020 noted the appellant had difficulty sleeping and was still undergoing counselling, and referred to the medication the appellant was receiving at that time. The entry on 22 February 2022 was as follows:
“wants to claim W/C
Was bullied in July 2012 at work … relapse of schizophrenia
Threatened by supervisor [and] other workers ‘Watch your … back’.”[23]
[23] Reply, p 183.
Subsequent entries in 2022 noted that the appellant was feeling stressed and depressed, and noted the appellant’s allegation that he suffered a relapse of his schizophrenia as a result of being bullied in the employ of the respondent. Dr Wong referred the appellant to Mr Wiggins, psychologist, and indicated that the appellant was continuing to consult a psychiatrist (either Dr Oen or Dr Saker). The entries recorded by Dr Wong in 2023 noted the appellant continued to complain of symptoms of poor sleep and depressed mood.

Mr Howard Wiggins, psychologist

Mr Wiggins corresponded with the appellant’s general practitioner, Dr K Y Wong, on 11 April 2022, following a consultation with the appellant.[24] He recorded a history of the appellant having suffered a work injury in 2012 when the appellant had perceived that his colleagues and managers bullied him, threatened him, and swore at him. He reported that the appellant complained of being withdrawn, feeling isolated and estranged from his daughter, depressed and anxious, with poor sleep, concentration and a sensitivity to noises. Mr Wiggins noted that the appellant advised that he was diagnosed with schizophrenia in 2012. Mr Wiggins indicated that there were six counselling sessions scheduled and recommended that the appellant be re-referred to Bankstown Community Health Services for review and ongoing support.
[24] Reply, p 185.

Dr Anthony Dinnen, psychiatrist

Dr Dinnen was asked by the appellant’s legal representatives to assess the appellant and provide an opinion. He provided a report dated 23 February 2023.[25] He noted that there was a family history of mental illness in that his mother suffered from schizophrenia. He took a detailed history of the appellant’s school aged years, his marriage and separation from his wife and his previous work experience. Dr Dinnen noted that the appellant developed an acute episode of schizophrenia in 2005, was admitted to Bankstown Hospital, and after two weeks was treated as an outpatient under the care of Bankstown Community Health. Dr Dinnen further noted that the appellant reported having improved after that time, did not require further medication and was able to work full time.
[25] ARD, pp 7–12.
Dr Dinnen recorded a history of the appellant commencing work with the respondent where he was targeted by three or four people who were calling him names and was bullied and harassed. Dr Dinnen said that the appellant described being threatened by pallet drivers and forklift operators and that the appellant reached a stage where he could not continue at work. Dr Dinnen referred to the appellant suffering hallucinations and paranoia, in that the appellant believed that the television was talking to him, and he thought that vehicle number plates had a meaning to them. Dr Dinnen added that the appellant complained of feeling unwell and began to feel as though somebody was talking to the appellant through the headphones he was wearing and trying to override the appellant’s work instructions.

Dr Dinnen took the further history that his family reported his illness, and a community nurse attended him and commenced him on depot antipsychotic medication known as Invega Sustenna, which commenced about two months after the appellant ceased work. Dr Dinnen said that the appellant continued with that treatment.
Dr Dinnen described the appellant’s current symptoms, noting that the appellant was under the care of Dr Stuart Saker, psychiatrist and was currently prescribed Rexulti, which he had been taking for three or four years.
Dr Dinnen reviewed the available documentary information. He referred to a certificate issued by Dr Oen, psychiatrist on 3 August 2019, in which Dr Oen advised that he had been treating the appellant since 2017, and the appellant had been admitted to acute psychiatric units in 2005 and 2011 with a diagnosis of chronic paranoid schizophrenia. Dr Dinnen said that the appellant had been on antipsychotic medication since 2012.
Dr Dinnen observed that the appellant had been on a disability support pension since 2012 and was of the view that there was no likelihood of the appellant’s condition improving or of becoming gainfully employed.
Dr Dinnen reviewed the appellant’s statement dated 31 March 2022 and recorded a history of the appellant’s employment with the respondent and the deterioration of the appellant’s condition after he experienced bullying and harassment at work. Dr Dinnen referred to the Certificates of Capacity issued by Dr K Y Wong, general practitioner, who certified the appellant as unfit for work as a result of bullying at work, which was caused by a relapse of the appellant’s schizophrenia. Dr Dinnen further referred to a letter dated 11 April 2022 from Mr Howard C Wiggins, psychologist, who took a history of the appellant having suffered a work injury in 2012 when he was bullied by his colleagues and managers, who swore at him and threatened him, resulting in the appellant suffering from social withdrawal, depression and suicidal ideas.
Dr Dinnen observed that the documentation was consistent with and corroborated the appellant’s account to him at the assessment. Dr Dinnen diagnosed the appellant as suffering from paranoid schizophrenia which had been aggravated, exacerbated and accelerated by the appellant’s employment with the respondent and that the appellant’s exposure to those events was the main contributing factor to the aggravation, exacerbation and acceleration of the underlying condition. He denied that there had been any further aggravation after 22 July 2012 and said that the condition had been ongoing since that date. Dr Dinnen considered that the appellant had no capacity for work since 23 July 2012. He added that in his experience, chronic schizophrenics are able to retain jobs if they are employed in a supportive and comfortable environment and given that the appellant did work between 2005 and 2012, had the employment with the respondent been a favourable environment, then he would have expected the appellant to continue to work.
Dr Dinnen advised that he had reviewed the available documentation after he had made his diagnosis so that he could assess whether the information conformed with or corroborated the information provided by the appellant.[26] He added that the diagnostic conclusions reached by others, whether they are experts or not, was only relevant where it was substantially different to the opinion he formed. He advised that a psychiatric evaluation includes a consideration of whether the patient’s account is reliable.
[26] Certificates provided by Dr Oen dated 3 August 2019; Dr Saker dated 20 August 2019 and Dr Wong dated 22 February 2022 and 26 May 2022; letter from Mr Wiggins dated 11 April 2022; appellant’s statement dated 31 March 2022.
In a separate report, Dr Dinnen assessed the appellant’s whole person impairment as 21%.[27]
[27] ARD, pp 13–14.
Dr Dinnen provided a further report dated 13 September 2023 at the request of the appellant’s legal representatives and in response to the report of Dr Judith Clarke.[28] He referred to the report dated 8 August 2023 and the appellant’s handwritten response to that report, as well as an excerpt from the Bankstown Community Mental Health Services’ clinical notes (two pages) dated 15 October 2012, indicating that the appellant had been incorrectly prescribed Sustanon injections instead of an antipsychotic medication with a similar name.
[28] ARD, pp 36–38.
Dr Dinnen referred to Dr Clarke’s discussion of the contents of the Bankstown Mental Health Services notes, which Dr Dinnen said disclosed contact with the family in 2007, 2008 and 2011. Dr Dinnen noted that no assessment or treatment was provided until 2011, at which time the Community Treatment Order was put in place. Dr Dinnen said that it was not mentioned in the notes that the appellant had been able to maintain employment for several years after 2005, as the appellant had reported to Dr Dinnen.
Dr Dinnen pointed out that the appellant disputed any allegation that he had assaulted family members. Dr Dinnen referred to Dr Clarke’s opinion that the clinical notes led her to consider that the appellant’s pre-existing condition was much more severe and enduring than the appellant had suggested. Dr Dinnen observed that although the notes referred to the appellant as having worked, Dr Clarke did not take into consideration that the appellant did in fact work over those years.
Dr Dinnen referred to Dr Clarke’s conclusion that she concurred with Dr Dinnen in respect of the diagnosis but disagreed on the question of causation. He further referred to her observation that it appeared that Dr Dinnen had not been provided with the contemporaneous clinical notes, which formed a basis for her different opinion on causation. Dr Dinnen quoted from the history recorded by Dr Clarke as to the cause of the appellant’s injury. Dr Dinnen advised that he was not impressed with the Bankstown Community Health clinical file, and he concluded that he was not convinced by Dr Clarke’s reasons for concluding that the appellant’s condition between 2005 and 2011 was much more severe than he reported it to be. Dr Dinnen said that the appellant’s lengthy hand-written response to Dr Clarke’s report was consistent with the information the appellant provided to him at interview.
Dr Dinnen pointed to Dr Clarke’s difficulty in accepting that the appellant suffered bullying and harassment at work and said that he was content to rely upon the account provided by the appellant. He observed that Dr Clarke appeared to be focussed on the nature of the appellant’s schizophrenic disorder and in doing so failed to direct her attention to the reason for the assessment, which was that the bullying and harassment in the workplace aggravated the appellant’s schizophrenia and led to a more severe disability.
Dr Dinnen concluded that it was noteworthy that the appellant’s cognitive function was much greater than would generally be found in a chronic schizophrenic illness, which normally involves significant thought disorder. He was of the view that the administration of the incorrect medication was irrelevant and confirmed that he did not wish to alter the opinion he had expressed in his first report.

Dr Judith Clarke, psychiatrist

Dr Clarke was requested by the respondent to assess the appellant and provide her opinion. She reported to the respondent on 10 May 2022.[29] Dr Clarke took a history of the appellant commencing work with the respondent in February 2012, and of the appellant’s complaint of being bullied at work by other staff. She recorded that the bullying caused the appellant to be concerned for his safety at work because the forklift drivers would come too close to him, and others either stood in his way so that he could not perform his duties, or they would knock his load over, and as a result of that behaviour he became fearful and unwell. Dr Clarke noted that the appellant’s condition deteriorated to the extent that he was unable to bring himself to attend work. Dr Clarke reported that the appellant spoke of:
(a)    feeling as though someone was looking at him with a camera when he woke up;
(b)    developing increasing fears that he was being watched, particularly by television news readers, and
(c)    experiencing auditory hallucinations, delusions and “thought broadcasting.”
[29] Reply, pp 43–52.
Dr Clarke referred to the appellant being treated by the Bankstown Community Mental Health Services and placed under a Community Treatment Order to ensure compliance with his required treatment of receiving antipsychotic depot injections, which, she noted ameliorated his symptoms to some extent. Dr Clarke noted that the appellant was assisted in gaining a Disability Support Pension and received treatment from Dr Liber, psychiatrist, at that time, but was subsequently transferred to Dr Saker. She observed that the Community Treatment Order was lifted, but he continued to receive the depot injections voluntarily. Dr Clarke recorded that the appellant thereafter maintained some stability but was not in remission. Dr Clarke indicated that the appellant complained of symptoms of:
(a)    lacking energy and motivation;
(b)    a fear of interpersonal contact;
(c)    occasional auditory hallucinations;
(d)    broken sleep and nightmares, with difficulty differentiating the nightmares from reality;
(e)    persecutory and “referential overvalued ideas;”
(f)    poor distress tolerance and being easily overcome;
(g)    hypersensitivity to noise;
(h)    becoming paranoid about being injured, and
(i)    experiencing suicidal ideation.
Dr Clarke took the history that in 2017, Dr Oen suggested that the appellant could change the antipsychotic medication, however within a month the appellant’s symptoms had deteriorated, so the appellant changed doctors. Dr Clarke noted that the appellant said that, prior to his work injury he was in full remission with no medication for six or seven years.
Dr Clarke considered that the appellant’s description of his symptoms in 2005 was consistent with a diagnosis of schizophrenia of which there had been multiple episodes, and which was in partial remission. She set out the necessary criteria for making that diagnosis. She advised that because of the passage of time and the lack of contemporaneous information, she was unable to form a definitive opinion in relation to specific dates of onset and the order in which the events occurred.
Dr Clarke indicated that the appellant attributed the aggravation of his schizophrenia to bullying in the workplace in 2012, however, in the context of a ten-year period between the onset and the symptoms and the lack of objective evidence, she was unable to definitively determine whether the bullying was the cause of the aggravation or whether there was some other unknown cause. Dr Clarke observed that the medical evidence forwarded to her suggested to her that the antipsychotic treatment provided may have occurred over a longer period of time or the appellant’s recovery may not have been as complete as he reported.
Dr Clarke was of the view that, given that there was only a partial remission of the appellant’s symptoms since 2012 and that the attempt to change the appellant’s medication was unsuccessful and had to be reversed, it was unlikely that there would be a cessation of the appellant’s symptoms. She thought that those matters also made it likely that the current aggravation would have occurred regardless of the workplace stressors.
Dr Clarke expressed the view that the appellant had no current work capacity and would need lifetime treatment for his chronic schizophrenia.
Dr Clarke provided a supplementary report dated 8 August 2023, following a review of documents from Bankstown Mental Health Services, the clinical notes from Dr K Y Wong and the reports of Dr Dinnen.[30] She confirmed the history provided in her earlier report. She noted that the appellant advised her that he had faced three criminal charges, one of which was dismissed, he was given a good behaviour bond in another, but could not recall the outcome of the third charge. Dr Clarke advised that the documentation provided to her referred to assaults on family members, including an incident in 2000 when his sister suffered fractured ribs, a charge in relation to an altercation with his brother in 2005 and an Apprehended Violence Order involving his mother which was breached.
[30] Reply, pp 53–64.
Dr Clarke reviewed the appellant’s mental state at presentation. She noted that he had a reasonable insight into his schizophrenia. She observed however that at the previous examination, the appellant reported experiencing his first episode of schizophrenia in 2005, he received brief treatment and was thereafter in full remission, returning to full function, and working and caring for his mother, until the relapse in 2012 when working for the respondent. Dr Clarke observed that the history provided by the appellant was completely at odds with the contemporaneous clinical documentation she had been provided with. She indicated that the notes disclosed that the appellant had a significantly more severe and enduring condition following 2005 and in fact did not “regain occupational or significant social function”.[31] She added that it appeared that there had been an untreated psychotic period of several years prior to 2012, associated with social withdrawal, the end of his marriage, the removal of access to his child and the cessation of work to be the carer for his mother. She observed that it appeared from the appellant’s report to her that the mother was in fact the appellant’s carer. She further noted that the clinical records revealed that the family had raised concerns a number of times, reporting the appellant’s aggressive moods and psychosis. Dr Clarke observed that there was no reference anywhere to the appellant working until after he had commenced depot antipsychotic medications in 2011. Dr Clarke formed the view that:
“The file indicates that the deterioration that has been described as being caused by employment with the insured occurred the year prior, and it was only after the commencement of the antipsychotic depot medication that [the appellant] gained insight into the condition, was agreeable to engaging with services, and began employment again, initially as a storeman and then with the insured.
Contemporaneous clinical notes of Dr Liber, Consultant Psychiatrist, of August 2012, [are] included, where [the appellant] is documented to have ceased work due to underperformance and ‘otherwise enjoyed his work there and got on with staff fine’, which does not support bullying or a perception thereof.
Finally, a file review on 15 October 2012 identified that instead of being provided with his monthly antipsychotic depot injection, Paliperidone 25mg monthly, [the appellant] was instead being injected with Sustanon 250 mg, [a] testosterone, from June until October 2012. He was thus both untreated and given a treatment that may have exacerbated some of his symptoms.
It remains my opinion that [the appellant] has a DSM-5 diagnosis of schizophrenia, multiple episodes, currently in partial remission. The evidence provided to me today suggests that any experiences with the insured are rather incidental to this condition and have not had a significant impact on it.”[32]
[31] Reply, p 60.
[32] Reply, p 60.
Dr Clarke confirmed her earlier diagnosis. She said that the appellant had not suffered a work injury but:
“in fact had a pre-existing chronic and enduring schizophrenia. It is also evident that he suffered a medical error - receiving regular injected anabolic steroids for several months in lieu of his depot antipsychotic medication.”[33]
[33] Reply, p 61.
Dr Clarke advised that there was a temporal relationship between the appellant ceasing work and the medical error, but said on the information available, it was not possible to attribute the appellant’s loss of function to that error. Dr Clarke further advised that she concurred with the diagnosis provided by Dr Dinnen but not his opinion on causation. She observed that it appeared that Dr Dinnen had not been provided with the contemporaneous clinical documentation that informed her opinion.
Dr Clarke provided a further supplementary report dated 24 November 2023,[34] following provision of additional documents, including both reports of Dr Dinnen, the appellant’s statement dated 12 July 2023, a single page of the clinical progress notes and hand-written documents said to be those of the appellant.
[34] AALD, pp 1–5.
Dr Clarke noted that the hand-written documents from the appellant disputed parts of the history recorded by her in her report dated 8 August 2023 and also disputed the contents of the clinical file from the Bankstown Mental Health Services. She advised that she disagreed with the appellant’s version of the re-examination conducted by her and said that she did not find the allegations made by the appellant plausible. She considered that it was understandable that the appellant would disagree with her opinion because the opinion conflicted with the appellant’s memory of what occurred.
Dr Clarke observed that the incidents relied upon by the appellant occurred more than a decade ago. She said that the appellant’s recollection of the events relied upon, the direction of his schizophrenia as he presented at both examinations conducted by her, and his assertions in his hand-written document were not supported by the contemporaneous material. She said that she took into account the reason for ceasing work provided by the appellant to his psychiatrist at that time, and the email from Ms Alexandra Ryan, the workplace representative. Dr Clarke indicated that:
“It is my view that the file’s relevance to the case is in terms of contemporaneous evidence of [the appellant’s] function and trajectory of his schizophrenia prior and in the short period after employment with the [respondent]. This document does not support [the appellant’s] assertion of functioning well over the preceding years, but rather establishes that it was only with antipsychotic treatment that he was able to return to the workforce after a several year absence. [The appellant] expresses a stigmatised view on schizophrenia including that ‘one who takes the medication for schizophrenia is unable to function normally let alone get full employment’. This view is not consistent with the history provided by [the appellant], of commencing and successfully completing employment with the insured without any performance problems.”[35]
[35] AALD, p 2.
Dr Clarke considered that the appellant’s allegations about the credibility and motivation of his family members were consistent with the record of family concerns in the clinical notes. She referred to the appellant’s allegations that Dr Liber provided false clinical notes to assist with the appellant’s application for a disability pension, that the appellant asserted he should not have been placed under a Community Treatment Order and that the Mental Health Services engaged in criminal behaviour. Dr Clarke remarked that the appellant thereby acknowledged that he was admitted to the Mental Health Unit in 2011 but did not acknowledge that in his statement made in July 2023. Dr Clarke conceded that it was possible that some of the referrals to the Mental Health Services by family members, which the appellant considered persecutory, may not have been motivated by concerns for the appellant’s health, but she said that that did not exclude the presence of a mental illness. She was of the view that the referral in 2011 enabled the Mental Health Services and the Mental Health Tribunal to determine through a Community Treatment Order that antipsychotic medication was warranted. She concluded that this process did not support the appellant’s assertions.
Dr Clarke advised that she was puzzled as to why Dr Dinnen had only been provided with two of the 100 or so pages of the clinical file of the Mental Health Services, given that the two pages did not provide details of the appellant’s function and mental state before and subsequent to his employment with the respondent. Dr Clarke considered that the provision of only two pages of the clinical notes to Dr Dinnen impacted the opinions he expressed, including as to the medication error. She reasoned that the appellant was commenced on antipsychotic medication in 2011, six months later the medication was abruptly ceased (after having been reduced two months earlier because of side effects) and instead the appellant was given testosterone medication for some months. She commented that while the appellant was given the antipsychotic medication his condition stabilised and he achieved a higher level of function than beforehand, including participating in the workforce. Dr Clarke considered that the reduction and cessation of the medication was the likely cause, or at least a significant factor in the occurrence, of the relapse, particularly where the medication provided in lieu of the antipsychotic medication is known to have psychiatric side effects. Dr Clarke pointed out that Dr Dinnen’s acceptance that the appellant suffered an aggravation of his schizophrenia as a result of bullying and harassment in the workplace did not take into account the relapse of the appellant’s mental state in 2011 or, the Community Treatment Order, or the appellant’s hospitalisation.

Dr Clarke indicated that she disagreed with Dr Dinnen’s acceptance of the history reported by the appellant as to his employment status between 2005 and 2011, which was unsupported by the contemporaneous clinical notes, and the appellant’s statement made in July 2023. She did not consider it reasonable to prefer the appellant’s recollection of events that occurred more than ten years ago, over the contemporaneous clinical notes and said that even if some of the allegations made by the appellant about his family’s motivation were true, it would be implausible to accept that the multitude of allegations complained of by the appellant occurred.
Dr Clarke confirmed her view expressed in the earlier reports that the appellant had not suffered a work-related aggravation of his schizophrenia.

THE MEMBER’S REASONS

The Member noted that the appellant had performed a variety of work, including that of a clerk, a teller, a forklift driver and a storeman. She further noted that the appellant suffered from schizophrenia, with an onset in 2005.
The Member said that the appellant commenced work with the respondent as a “voice picker” at the Woolworths Distribution Centre at Yennora, performing afternoon shifts, and was appointed as a permanent employee after a period of six weeks. She noted that the appellant was employed for approximately five months, ceasing work in mid-July 2012.
The Member observed that the appellant alleged that he was subjected to bullying and harassment in the workplace, including his co-workers calling him insulting names, swearing at him, threatening him, trying to dislodge his loads in a dangerous manner, and intimidating him by driving too close to him. The Member noted that the appellant nominated Mr Nick Allen as a person who threatened him, and the appellant was told to “watch his back”. The Member recorded that the appellant said that he reported these matters to his supervisor, Alexandria.
The Member referred to the appellant’s evidence that up to that time his health was stable, but as a result of the behaviour, his condition severely deteriorated, he became unwell and ceased work. She noted he complained of symptoms of hearing voices, which overrode the automated instructions from his headphones. She said that the appellant then sought medical attention and was placed on a Disability Support Pension.
The Member summarised the issues for her to determine as:
(a) whether the appellant suffered an injury arising out of or in the course of his employment as a result of bullying and harassment by his co-workers, and
(b) whether the appellant was barred from bringing his claim because it had not been made within the prescribed time.
The Member observed that there was no application by either party to adduce oral evidence or cross-examine the appellant. She referred to the documents attached to the appellant’s ARD, the respondent’s reply, and the respondent’s AALD. She advised that she had considered that evidence in the process of determining the matter. She summarised the appellant’s submissions as follows:
“Dr Dinnen, an independent medical examiner (IME), examined the [appellant] on behalf of the [appellant’s] solicitors. He provided a report dated 23 February 2023. He diagnosed the [appellant] with paranoid schizophrenia identifying events in the respondent’s employ from March to July 2012 as the main contributing factor to the aggravation, exacerbation and acceleration of schizophrenia in the [appellant] which has been ongoing since July 2012.
Dr Dinnen was asked:
‘If not for any employment-caused aggravation, exacerbation and acceleration of the underlying schizophrenia in July 2012, is it likely that [the appellant] would have continued with work as a storeman and forklift driver with controlled schizophrenia, noting his medical history prior to July 2012?’
He responded:
‘In my experience, many patients with chronic schizophrenia are able to hold down jobs of this nature, or in factory work, where the work environment is supportive and comfortable for them. The patient’s account is that he did continue to work from the first episode in 2005 until 2012. If the workplace at Woolworths in Yennora had been favourable, I would expect him to have continued to work there.’”[36]
[36] Patsalis v Allstaff Australia Sydney Pty Ltd [2024] NSWPIC 99 (reasons), [15]–[16].
The Member turned to the respondent’s submissions. She extracted a portion of the respondent’s notice issued pursuant to s 78 of the 1998 Act which listed the respondent’s reasons for disputing liability.
The Member referred to the evidence of Dr Clarke, noting that Dr Clarke agreed that the appellant had no work capacity. The Member said that Dr Clarke was asked by the respondent as to whether the appellant would have been likely to experience similar symptoms at about the same stage of his life regardless of the nature and conditions of his employment. The Member recorded Dr Clarke’s response that the chronic nature of the appellant’s symptoms and the condition’s resistance to treatment over the period of ten years indicated that it was likely that the aggravation would have occurred regardless of the stressors in the workplace.
The Member noted that Dr Clarke was requested to provide a further report addressing copies of both of Dr Dinnen’s reports, the clinical notes of Bankstown Mental Health Services and the clinical notes of Dr Wong. The Member extracted a passage from Dr Clarke’s report dated 8 August 2023, in which Dr Clarke recorded that the appellant had asserted at the examination and at the previous examination that he had:
(a)    experienced his first episode of schizophrenia in 2005;
(b)    received brief treatment;
(c)    experienced a full remission and a return to full function, caring for his mother and working, and
(d)    experienced bullying in the workplace in 2012, resulting in a relapse of his condition.
The Member quoted the passage from Dr Clarke’s report extracted by me at [89] above.
The Member extracted a further passage from Dr Clarke’s report in which Dr Clarke said that the documents provided to her indicated that:
(a)    the appellant did not suffer a work injury but suffered from a pre-existing chronic and enduring condition of schizophrenia;
(b)    the appellant had also been exposed to a medical error when the appellant had received regular injections of anabolic steroids for several months, and
(c)    there was a temporal relationship between the medical error and the appellant ceasing work, however on the information available it was not possible to attribute the appellant’s loss of function to that occurrence.
The Member proceeded to determine the matter. She noted that there was no dispute that the appellant had no capacity for work and that the issue was whether there was a causal connection between the appellant’s incapacity and his employment. She advised that she had considered the evidence and the submissions of the parties.
The Member observed that the appellant did not provide a history to his treatment providers of being bullied at work with the respondent over the extensive period he received treatment after ceasing work, and the first complaint was not made until he commenced his claim for compensation. The Member said that, taking into consideration the evidence of the treatment history, the clinical notes and the medical error which left him without medication to treat his condition, she was persuaded that the appellant’s current psychiatric condition and his incapacity for work were not related to the events that might have occurred in his employment with the respondent.
The Member concluded that Dr Clarke’s opinion and diagnosis were correct, and while the appellant suffered from a chronic condition and he had no capacity for work, she was not satisfied that his condition and inability to work were in any way connected to the appellant’s work with the respondent. She observed that the burden rested upon the appellant to establish that his incapacity arose out of or in the course of his employment and she concluded that the appellant had not discharged that burden. She added that, in those circumstances, she was not required to determine the issue as to whether the appellant was statute barred in respect of bringing his claim.
The Certificate of Determination issued on 1 March 2024 records:
“ The Commission determines:
1. The [appellant] was not injured in the employ of the respondent.
The Commission orders:
1. An award for the respondent.”

GROUNDS OF APPEAL

After the appeal had been lodged, and in accordance with the Direction of a delegate of the President, the appellant filed further submissions on 13 April 2024 following receipt of the transcript. In those submissions, the appellant firstly sought to amend Ground Two of the appeal, which originally read:
“The … Member erred in law when she failed to give any or any adequate reasons regarding Dr Dinnen’s medical report dated 13 September 2023 and when she failed to provide any reasons on the appellant’s written commentary on Dr Clarke[’s] second medical report dated 3 July 2023.”[37]
[37] Submissions dated 24 March 2024, [2].
The appellant provided the following reasons as to why leave to amend the ground of appeal should be given:
(a)    following receipt of the transcript, the appellant became aware that there were numerous other instances of the Member failing to give reasons for her decision;
(b)    the respondent would not be prejudiced because the amendment would not alter the ground of appeal, and the respondent had until 7 May 2024 to lodge and serve its opposition to the appeal and any supporting documentation;
(c)    section 367 of the 1998 Act sets out the Commission’s objectives, and an amendment to the ground of appeal would further those objectives, and
(d)    the author of the appellant’s submissions was not aware until he read the transcript that there was a third report of Dr Clarke dated 24 November 2023 which was not mentioned by the Member in her determination and was therefore not considered or was overlooked by the Member.
The respondent had the opportunity to respond to the proposed amended ground and did so in its opposition. In the circumstances where the appellant has provided adequate reasons as to why the amendment is necessary, and there is an absence of any prejudice to the respondent, I allow the amendment to Ground Two of the appeal.
In the submissions following the receipt of the transcript dated 13 April 2024, the appellant also sought to bring two further grounds of appeal:
(a) Ground Five: The Member erred in law in concluding that the absence of contemporaneous evidence regarding reporting the bullying and harassment and other mistreatment was decisive on the issue of causation, and
(b) Ground Six: A miscarriage of justice has occurred by reason of the incompetence of the appellant’s legal representatives.
Although the appellant was provided with the opportunity to make further submissions on receipt of the transcript, that opportunity was not one in which the appellant was given the liberty of raising new grounds of appeal.[38] The appellant requires leave to do so. The appellant did not make an application for leave to raise a new ground of appeal in the supplementary submissions made after the receipt of the transcript, or otherwise.
[38] University of New South Wales v Lee [2021] NSWPICPD 4, [29]; BBY v The GEO Group Australia Pty Ltd [2023] NSWPICPD 60.
The respondent has had the opportunity to respond to those submissions in its opposition and points out that the proposed fifth ground of appeal is adequately dealt with under Ground Three of the appeal, and that the appellant’s complaint under the proposed sixth ground of appeal is not an appropriate ground. The respondent says that the appellant is bound by the conduct of his legal representatives.
I agree with the respondent that the proposed Ground Five of appeal is a reiteration of the third ground already made. In respect of the proposed Ground Six, while the appellant may have concerns in relation to the manner in which the case proceeded, such complaints do not constitute a proper basis upon which to ground an appeal. Section 352(5) of the 1998 Act restricts the avenue for an appeal against a decision of a member to a determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion.
I therefore do not grant leave for the appellant to rely on the proposed Ground Five and Ground Six of the appeal.
The appellant brings four grounds of appeal as follows:
(a)    Ground One: The Member erred in fact and law when she overlooked material facts, or gave undue weight to the evidence, or the available inference in the opposite sense to that chosen by the Member was so preponderant that it establishes that the decision is wrong;
(b)    Ground Two (as amended): The Member erred in law when she failed to give any or any adequate reasons regarding:
(i)Dr Dinnen’s medical report dated 13 September 2023;
(ii)Dr Clarke’s third report dated 24 November 2023, and
(iii)the appellant’s written commentary on Dr Clarke’s second medical report dated 3 July 2023.
(c)    Ground Three: The Member erred in fact and law by failing to provide the appellant with procedural fairness by, inter alia,
(a)not dealing with the appellant’s statement, which shows that the appellant did give a history to his employer of bullying and other mistreatment at work, and
(b)overlooking the appellant’s 15-page hand-written commentary on Dr Judith Clarke’s second medical report,
and
(d)    Ground Four: The Member erred by failing to give legally required consideration to this matter.

LEGISLATION

Section 294(2) of the 1998 Act requires that a Member of the Commission who determines a dispute between the parties is to issue a Certificate of Determination, and that a “brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 78 of the Personal Injury Commission Rules 2021 (the 2021 Rules) provides:
“78   Statement of reasons for decision
(1)     This rule applies only in relation to the following applicable proceedings—
(a) Commission proceedings,
(b) merit review proceedings.
(2)     A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the appropriate decision-maker’s understanding of the applicable law,
(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3)     Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”

SUBMISSIONS

In the appellant’s further submissions following the receipt of the transcript, the appellant expands upon his substantive submissions already made. Many of those submissions are not in respect of matters arising out of the transcript. I am not required to consider submissions made after the time period for doing so was closed[39] and the invitation to provide submissions arising from the transcript is not an invitation to provide further submissions at large.[40] I decline to allow the further submissions, other than those directly related to matters arising from the transcript.
[39] Bale.
[40] NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; Heffernan v Comcare [2014] FCAFC 2 per Allsop J (Jacobson J agreeing), [39].
The parties’ substantive submissions are summarised below. The only additional submissions that are included in the summary are those that pertain to matters arising out of the transcript of proceedings and in reply to the respondent’s submissions.

As to Ground One

The appellant’s submissions

The appellant submits that it is readily apparent from the Member’s decision that she did not refer to the report of Dr Dinnen dated 13 September 2023. The appellant reproduces the whole of that report and submits that that evidence was critical to his case and was not referred to at all by the Member. The appellant says that it is reasonable to infer that the Member overlooked that evidence or failed to give consideration to it.
The appellant adds that the Member also overlooked the material facts set out in his 15-page hand-written commentary on Dr Clarke’s report. The appellant asserts that Dr Dinnen’s report dated 13 September 2023, which should be read with his earlier report, and the appellant’s hand-written commentary, show that Dr Clarke’s findings and conclusions are incorrect. The appellant submits that the Member failed to consider this relevant material, particularly in circumstances where the Member accepted Dr Clarke’s opinions.
The appellant further submits that the Member’s decision also shows that she failed to give any reasons in respect Dr Dinnen’s report dated 13 September 2023 and in respect of the matters raised by the appellant in his written commentary. The appellant says that those matters were critical matters in his case. The appellant submits that those documents provide for an available opposite inference to be drawn that is so preponderant that it demonstrates that the decision is wrong. The appellant explains that his medical evidence establishes that there was an increase in his symptoms which is consistent with an aggravation, exacerbation or acceleration of his underlying disease of schizophrenia occurring in the course of his employment and to which his employment was a substantial contributing factor.
The appellant asserts that, if the Member had considered both of Dr Dinnen’s reports together, as well as the appellant’s lay evidence and the treating doctors’ evidence, she would have been satisfied that Dr Dinnen had provided proper and cogent reasons for his opinions and would have concluded that the appellant suffered an aggravation, exacerbation or acceleration of his underlying disease of schizophrenia in the course of his employment and to which his employment was a substantial contributing factor. The appellant submits that Dr Clarke did not engage with the appellant’s actual circumstances or the evidence from his treating doctors in relation to the work injury and its effects, so that her opinion ought not to have been accepted.
The appellant refers to Raulston v Toll Pty Ltd,[41] Whiteley Muir & Zwanenberg Ltd v Kerr,[42] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[43] and North Sydney Council v Ligon 302 Pty Ltd[44] as authorities for the above propositions.
[41] [2011] NSWWCCPD 25.
[42] (1966) 39 ALJR 505.
[43] [2001] FCA 1833.
[44] (1995) 87 LGERA 435.
The appellant confirms that the transcript records that his counsel made submissions in relation to Dr Dinnen’s medical report dated 13 September 2023 and the report of Dr Clarke dated 24 November 2023,[45] and the respondent also made submissions about both of those reports.[46] The appellant submits that the Member was required to identify the controversies between the parties and explain why she accepted one over the other. The appellant asserts that the Member did not fulfil that duty, and the Member’s decision should be set aside.
[45] Transcript of proceedings (T), Patsalis v Allstaff Australia Sydney Pty Ltd [2024] NSWPIC 99, T25.20–32. and T56.23–31.
[46] T46.10–27; T48.9–15; T29.6–11; T48.20–34, T49.1–32; T50.4–23.
The appellant asserts that the Member made reference to Dr Clarke having both of the reports of Dr Dinnen dated 23 February 2023 which were not the reports the subject of submissions. The appellant says that it was the third report of Dr Dinnen dated 13 September 2023 about which the parties made substantive submissions. The appellant submits that the Member overlooked Dr Dinnen’s report dated 13 September 2023, in which Dr Dinnen challenged Dr Clarke’s findings and conclusions. The appellant submits that the Member thus erred in fact or law.

The respondent’s submissions

The respondent submits that it was not necessary for the Member to refer to every piece of evidence and contends that it would not be an error for the Member to have failed to specifically refer to an opinion of a medical practitioner. The respondent refers to various authorities to support those submissions.
The respondent asserts that the Member clearly exposed her reasons. The respondent submits that the Member accepted the opinion of Dr Clarke, who gave careful consideration to the history the appellant provided to her and to the documentary material provided to her, including the clinical notes of Bankstown Mental Health Services and the clinical notes of Dr Wong. The respondent refers to the history taken by Dr Clarke and points out that Dr Clarke observed that that history was completely at odds with the contemporaneous clinical material, particularly the Bankstown Mental Health Services. The respondent further refers to Dr Clake’s observations that those notes disclose that:
(a)    the appellant’s condition was pre-existing and more severe and enduring;
(b)    the appellant was being cared for by his mother, rather than him being the carer;
(c)    the family had raised concerns about the appellant’s behaviour and symptoms on several occasions, and
(d)    there were no records of the appellant working until late 2011, after he had commenced on depot medication.
The respondent indicates that Dr Clarke also took into account the history provided by the appellant to Dr Liber at a consultation in August 2012 that the appellant had ceased his employment with the respondent due to underperformance, enjoyed the work, and had a good relationship with the other staff, which, in Dr Clarke’s view, did not support a complaint of bullying or the perception of such conduct. The respondent also points out that Dr Clarke took into account evidence of the medical error occurring between June 2012 to October 2012, which Dr Clarke thought may have exacerbated his symptoms.
The respondent submits that Dr Clarke’s conclusions were based on all of that evidence.
The respondent submits that the evidence before the Member consisted of two expert psychiatric opinions and that it was a matter for the Member to determine which of those opinions she accepted. The respondent says that the Member accepted the opinion of Dr Clarke, which was based upon the contemporaneous evidence, rather than the opinion of Dr Dinnen, which was based upon the appellant’s recollection and only two pages of the more than 100 pages of the contemporaneous clinical material. The respondent asserts that there was no error of fact or law on the part of the Member and the ground of appeal ought to be dismissed.

The appellant’s submissions in reply

The appellant refers to the respondent’s submission that the Member is not required to specifically refer to an opinion of a medical practitioner. The appellant refers to the authority relied upon by the respondent for that assertion,[47] and submits that the observation made by the Court of Appeal was limited to the facts in that case. The appellant submits that the authority relied upon can be distinguished from this case because the Member not only failed to refer to the report from Dr Dinnen dated 12 September 2023, she failed to list the report in her reasons.
[47] Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127.
The appellant refers to the respondent’s contention that the Member clearly exposed her reasoning process and submits that his submissions disclose that she did not. The appellant asserts that the only reasoning the Member “exposed” was in respect of the report of Dr Dinnen dated 23 February 2023 and Dr Clarke’s medical reports dated 10 May 2022 and 8 August 2023.
The appellant submits that the respondent’s submissions that the Member considered and did not overlook Dr Dinnen’s report dated 13 September 2023 are patently erroneous, and misleading and irrelevant.

As to Ground Two

The appellant’s submissions

The appellant asserts that the Member erred in law in that she failed to provide any or any adequate reasons in respect of Dr Dinnen’s report dated 13 September 2023 and the appellant’s hand-written commentary on Dr Clarke’s report. The appellant quotes from Soulemezis v Dudley (Holdings) Pty Ltd,[48] in which the duty to give reasons was discussed by McHugh JA (as his Honour then was) and Housing Commission ofNew South Wales v Tatmar Pastoral Co Pty Limited,[49] where Mahoney JA indicated that the duty to give reasons is satisfied if the reasons are sufficient to show the parties why the decision-maker’s conclusions were reached. The appellant also points out that in Hendrix v Accuro Homecare Pty Ltd,[50] Snell DP confirmed that, in circumstances where there is a conflict in the expert evidence, the Member has a duty to give reasons for his or her decision.
[48] (1987) 10 NSWLR 247.
[49] (1983) 3 NSWLR 378.
[50] [2023] NSWPICPD 48.
The appellant maintains that the Member’s decision clearly discloses that she made no reference to Dr Dinnen’s report dated 13 September 2023 or to the appellant’s hand-written commentary and failed to give any or any adequate reasons for not accepting that evidence. The appellant says that the Member was required to provide reasons for preferring the evidence of Dr Clarke over that of Dr Dinnen. The appellant further maintains that Dr Dinnen’s evidence in the report dated 13 September 2023, which was not referred to by the Member, was so critical to the determination of the dispute that the inference would be drawn that the Member overlooked the evidence or failed to give it any consideration. The appellant asserts that the Member erred by failing to give reasons, and, in accordance with the authorities discussed, the error constitutes an error of law.
The appellant adds that the Member also gave no reasons for failing to take into account the appellant’s hand-written commentary, which showed:
(a)    that the appellant did in fact report the bullying and harassment to his employer;
(b)    why the administration of the wrong medication was irrelevant;
(c)    that Dr Clarke had become an advocate for the respondent rather than an independent medical examiner, and
(d)    that Dr Clarke’s focus appeared to be on the nature of the appellant’s schizophrenia and the events in the home, rather than the bullying and harassment at work, which aggravated his schizophrenia and led to the appellant’s condition becoming more severe.
The appellant also relies upon his submissions made in Ground One in respect of the matters addressed in the transcript of proceedings.
The appellant maintains that an error of law has occurred, this ground of appeal succeeds, and the Member’s decision should be set aside.

The respondent’s submissions

The respondent repeats its submissions made in respect of Ground One of the appeal. The respondent adds that the Member clearly exposed her reasoning for accepting the opinion of Dr Clarke over that of Dr Dinnen. The respondent submits that the Member’s reasons should be read as a whole, it is not appropriate to comb through her decision in search of errors and the Member sufficiently exposed the reasons for her decision. The respondent asserts that the appellant has failed to demonstrate error and says that this ground of appeal ought also to be dismissed.
The respondent refers to the appellant’s complaint that the Member failed to give any, or any adequate, reasons in respect of Dr Clarke’s report dated 24 November 2023. The respondent refers to that report, noting that Dr Clarke commented upon the appellant’s hand-written commentary and took into account that the appellant disputed parts of the history recorded by her and also disputed the contents of the Bankstown Mental Health Services clinical file. The respondent points out that Dr Clarke considered it understandable that the appellant disagreed with her opinion because it conflicted with his recall of events.
The respondent quotes from the Member’s reasoning as to the conflict between the appellant’s recollection and the contemporaneous material, which I have summarised and also quoted at [103] above. The respondent observes that it is difficult to understand how that evidence could assist the appellant’s case at all.
The respondent asserts that the Member gave cogent reasons for accepting the opinion of Dr Clarke, which was dependent upon the contemporaneous material, rather than the appellant’s recollection. The respondent adds that “the appellant did not canvass the clinical notes at all”[51] other than to say that Dr Dinnen observed that the two pages of clinical notes that were supplied to him led him to state that he was not at all impressed by those notes. The respondent says that Dr Dinnen further stated that the appellant’s hand-written commentary was consistent with the history given to him by the appellant at interview. The respondent contends that the difference between the opinions was that Dr Clarke’s opinion was based on the contemporaneous material, while Dr Dinnen’s opinion was reliant upon the appellant’s recollection of events that occurred ten years beforehand. The respondent submits that it was entirely open to the Member to prefer the opinion of Dr Clarke and the Member’s reasons for her conclusion were readily apparent.
[51] Respondent’s submissions, [44].
The respondent adds that the fact that both counsel submitted in respect of the reports of Dr Dinnen dated 13 September 2023 and Dr Clarke dated 24 November 2023 confirms that the Member was aware of the difference in opinion between the two doctors, and her reasons for accepting the opinion of Dr Clarke were readily understandable. The respondent asserts that it was not necessary for the Member to specifically refer to Dr Clarke’s report dated 24 November 2023, because her opinion was clearly set out in her earlier report dated 8 August 2023, and she confirmed that opinion in the report of 24 November 2023.
The respondent concludes that there is no error demonstrated in the Member’s determination and this ground of appeal also fails.

The appellant’s submissions in reply

The appellant repeats his submissions in relation to the critical nature of Dr Dinnen’s evidence, particularly the report dated 13 September 2023, and of the hand-written commentary on Dr Clarke’s report dated 8 August 2023, as well as his statement with attached documents relating to his criminal history.

As to Grounds 3(a) and 3(b)

The appellant’s submissions

The appellant submits that the Member failed to deal with the evidence he gave in his statement and in his hand-written commentary on Dr Clarke’s report that he did in fact report the bullying and other mistreatment at work. He refers to his evidence that his supervisor, Alexandria, had contacted him offering further shifts, but because nothing was being done to stop the behaviour, he could not return to work.
The appellant adds that he requested that the respondent provide his employment file and points out that there was no application made to cross-examine him about his evidence, or anybody else. The appellant asserts that the respondent did not challenge his evidence. He submits that there was, therefore, definite factual evidence providing a history of bullying and mistreatment at work, with no evidence to refute his version of events, so that his evidence is uncontroverted.
The appellant asserts that it follows that the Member erred in fact and law by observing that he did not give a history of bullying or mistreatment at work when he ceased work or during the long period when he received treatment, and the complaint was only made when he made this claim.[52] The appellant submits that the Member overlooked the critical evidence that he complained to the respondent about those matters when the respondent rang him to find out why he was not at work. The appellant submits that an error of fact or law has occurred, the ground of appeal has been made out, and the Member’s determination should be revoked.
[52] Reasons, [24].

The respondent’s submissions

The respondent submits that the Member noted that the appellant said that he reported to his supervisor, Alexandria, that he was being bullied and harassed, so that it cannot be said that the Member ignored that evidence. The respondent contends that when the Member observed that the appellant did not provide a history of bullying or harassment at work when he ceased work and for a long period thereafter, the Member was referring to the absence of any history to his treatment providers. The respondent refers to the Member’s reasons at [24] in which the Member noted that there was no complaint recorded in the clinical material of the appellant having difficulties at work. The respondent points out that the note recorded by Dr Liber in relation to the reason given by the appellant for ceasing work and of the appellant getting along well with his co-workers was contrary to the appellant’s recollection and was take into account by the Member.
The respondent again asserts that the appellant has failed to demonstrate error and says that this ground of appeal ought to be dismissed.

The appellant’s submissions in reply

The appellant asserts that his submissions made in his substantive submissions show that the Member erred in fact and law.

As to Ground Four

The appellant’s submissions

The appellant submits that the Member erred by failing to give “legally required” consideration to Dr Dinnen’s expert medical opinion that the matter of the incorrect medication was irrelevant to the question of causation. The appellant points to the Member’s reasoning that the treatment error which resulted in the appellant not being given the required medication persuaded her that the appellant’s condition and his incapacity for work were unrelated to events that might have occurred at work. The appellant asserts that, had the Member taken into account Dr Dinnen’s evidence, she should not have made those findings. The appellant concludes that an error of fact and law has been established, and the Member’s determination should be set aside.

The respondent’s submissions

The respondent refers to the Member’s observations at [24] of her reasons that her:
“consideration of the [appellant’s] treatment history and clinical notes, including the treatment error which left him without medication appropriate to his condition, persuades me that the [appellant’s] current condition and incapacity is unrelated to any events which might have occurred in the respondent’s employ.”
The respondent says that this is the paragraph to which the appellant refers. The respondent submits that there was evidence from Dr Clarke supporting a temporal relationship between the appellant ceasing work and the medical error. The respondent says that this evidence supported the Member’s conclusion.
The respondent refers to Dr Dinnen’s report dated 13 September 2023, in which Dr Dinnen considered that the medical error was irrelevant. The respondent says that it appears that the appellant’s argument is that the Member ought not to have taken the medical error into account. The respondent submits that the Member made no specific finding about the medical error, and simply noted that she had considered that evidence together with the appellant’s treatment history and clinical notes, which she was entitled to do, before reaching her conclusion.
The respondent asserts that the Member did not err, particularly in respect of her acceptance or rejection of the evidence before her, and this ground of appeal should be dismissed.

The appellant’s submissions in reply

The appellant repeats its submissions made in respect of Grounds One and Two. The appellant maintains that the Member’s failure to summarise or even refer to Dr Dinnen’s report dated 13 September 2023 leads to the conclusion that the Member did not know that Dr Dinnen considered that the fact that the appellant was given the wrong medication was irrelevant. The appellant submits that the Member made a specific finding that the fact that he was given the wrong medication in part led to her conclusion that the appellant’s condition was unrelated to the events which might have occurred at work.

CONSIDERATION

Ground One: The Member erred in fact and law when she overlooked material facts, or gave undue weight to the evidence, or the available inference in the opposite sense to that chosen by the Member was so preponderant that it establishes that the decision is wrong

This ground of appeal entails a consideration of whether the Member overlooked what the appellant submits are ‘material’ facts, or whether the Member placed excessive weight on the evidence provided by Dr Clarke, or whether the Member should have drawn the opposite inference from the evidence contained in his hand-written commentary and Dr Dinnen’s expert opinion.
The appellant complains that the Member failed to give any reasons in respect of Dr Dinnen’s report dated 13 September 2023 and overlooked his hand-written commentary of Dr Clarke’s report. The alleged failure to give reasons is dealt with under Ground Two of this appeal and the question of whether the Member overlooked the appellant’s hand-written commentary is dealt with under Ground Three.
The appellant’s criticism of the weight the Member afforded to the evidence involves an evaluative factual exercise. It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker.[53] The appellant has established error on the part of the Member in respect of Grounds Two and Three and the dispute requires re-determination. In those circumstances I do not consider it appropriate to determine, at a presidential level, the weight to be afforded to the available evidence or to draw inferences from that evidence.
[53] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308.
I decline to determine this ground of appeal.

Ground Two: The Member erred in law when she failed to give any or any adequate reasons regarding:

(a)    Dr Dinnen’s medical report dated 13 September 2023
(b)   Dr Clarke’s third report dated 24 November 2023, and
(c)    the appellant’s written commentary on Dr Clarke’s second medical report dated 3 July 2023.

To ascertain whether the Member’s reasons are adequate, it is necessary to take into account the whole of the decision.[54] As Meagher JA observed in Beale v Government Insurance Office of NSW,[55] while a primary decision-maker’s reasons do not need to be elaborate or lengthy, there are three fundamental elements of the duty to give reasons. Firstly, the decision-maker should refer to the relevant evidence. Where the evidence is important to the proper determination of the matter, and the decision-maker does not refer to it, it may be inferred on appeal that the decision-maker overlooked or failed to give consideration to that evidence. Secondly, where evidence is accepted over other significant evidence, the decision-maker should set out his or her findings as to how he or she came to accept that evidence over the other. Thirdly, a decision-maker should provide reasons for making the relevant findings of facts, and the conclusions reached. The process of reasoning should be understandable and logical.
[54] Mifsud v Campbell (1991) 21 NSWLR 725, 728, per Samuels JA (with Clarke JA and Hope AJA agreeing).
[55] (1997) 48 NSWLR 430, 443 (Beale).
In Roncevich v Repatriation Commission,[56] Kirby J said that the Courts:
“[should] avoid an overly pernickety examination of the reasons.”
and that:
“[t]he focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”
[56] [2005] HCA 40, [64].

The appellant asserts error on the part of the Member by a failure to give adequate reasons “in regard to” the most recent report of Dr Clarke. The appellant does not explain how any error on the part of the Member in her evaluation of the evidence of Dr Clarke would affect the result in this case. There is nothing in the report from Dr Clarke dated 24 November 2023 that assists the appellant’s case, so that the appellant cannot be aggrieved by the Member failing to deal with that evidence. That allegation of error is not made out.
The appellant complains that the Member did not provide any adequate reasons “in regard to” Dr Dinnen’s report dated 13 September 2023, and thus erred in law. It can be assumed from the submissions made by the appellant that he asserts that the Member erred by failing to provide adequate reasons for not accepting Dr Dinnen’s opinion as expressed in that report.
The Member indicated that she had “considered the material relied upon and the submissions made by counsel for the [appellant].”[57] She noted the issue for determination was whether there was a causal connection between the appellant’s condition and his employment with the respondent. She concluded that she was not persuaded as to the causal connection because in the long history of treatment there was no complaint noted of the alleged work events in the medical records and because of the medical error when the appellant was without medication for a period.
[57] Reasons, [23].
While the Member informed that she had considered the evidence and the submissions of the parties, she limited her expressed consideration of the evidence of Dr Dinnen to his report dated 23 February 2023. In that report, Dr Dinnen:
(a)    diagnosed the appellant as suffering from paranoid schizophrenia as a consequence of his work experiences with the respondent during the period from March to July 2012;
(b)    said that the effects of the aggravation were continuing, and
(c)    considered that the appellant would have continued to work had the work environment with the respondent been comfortable.
Dr Dinnen’s evidence and opinions contained in the report dated 13 September 2023 comprised of a consideration of:
(a)    the history and opinion on causation recorded by Dr Clarke;
(b)    the evidence about the medical error when the appellant was given the wrong medication, which Dr Dinnen did not consider relevant to the question of causation;
(c)    the appellant’s hand-written commentary of Dr Clarke’s report in which the appellant criticised aspects of Dr Clarke’s conclusions, and
(d)    the history provided to him by the appellant that the appellant had worked over the years prior to the aggravation of his schizophrenia, a history that conflicted with the observations made by Dr Clarke.
All of those matters constituted evidence, which, if accepted lent support to the appellant’s case and went further than the evidence provided by Dr Dinnen in his earlier reports.
It is apparent from the Member’s reasons that she preferred the evidence of Dr Clarke because it was “correct” in that it was consistent with the clinical treatment notes and other evidence from the appellant’s treatment providers. It is not apparent from the Member’s reasons that, in reaching that conclusion, the Member dealt with:
(a)    the conflicting different histories recorded by each of the two experts in respect of the appellant’s work history;
(b)    the primary evidence about the medical error, in which Dr Kurrle advised that there was only one occasion (3 October 2012) when the appellant received the wrong injection,[58] or
(c)    the difference in opinion as to the importance of the medical error.
[58] AALD, pp 23, 34.
The appellant also asserts error in that the Member failed to provide reasons “in regard to” his hand-written commentary of Dr Clarke’s evidence. It is apparent that the Member gave some consideration to that evidence. The transcript of proceedings records that the appellant’s counsel made submissions about that document, and the Member indicated that she had read the document but was not sure of the relevance of the information provided in it.[59] The Member’s consideration of that evidence went no further. There was no disclosed reasoning path by which the Member dealt with that evidence.
[59] T22.15–23.21.
In respect of the allegations of error in failing to provide adequate reasons for rejecting the appellant’s case, the Member’s reasoning process is not readily apparent. It is my view that the Member’s reasoning process in respect of the evaluation of the evidence of Dr Dinnen and the appellant’s hand-written commentary of Dr Clarke’s evidence fell short of the required benchmark set out in Beale, and as required by r 78 of the 2021 Rules. As McColl JA observed in Pollard v RRR Corporation Pty Ltd,[60] where it is apparent from a decision that the decision-maker did not analyse the evidence competing with the accepted evidence, and did not explain why it was rejected, the process of fact-finding will have miscarried.
[60] [2009] NSWCA 110, [66].
It follows that the Member erred as asserted by the appellant and Ground Two of the appeal succeeds.

Ground Three: The Member erred in fact and law by failing to provide the appellant with procedural fairness by, inter alia,

(a) not dealing with the appellant’s statement, which shows that the appellant did give a history to his employer of bullying and other mistreatment at work, and
(b) overlooking the appellant’s 15-page written commentary on Dr Judith Clarke’s second medical report

The Member did not determine whether the appellant reported the alleged bullying and harassment to his employer. She explained that she did not do so because, having determined that there was no causal connection between the appellant’s condition and his employment, she was not required to determine whether he had reported his injury and/or made a claim for compensation in accordance with ss 254 and 261 of the 1998 Act.
The Member concluded that there was no causal connection between the appellant’s condition and his employment. She based that conclusion on the absence of medical evidence that recorded such complaints up until the appellant made his claim for compensation, some ten years after the alleged events. She did not reach her conclusion by taking into account any evidence or absence of evidence that the appellant reported his complaints to the employer at the time he went off work.
The assertion by the appellant that he reported the bullying and harassment to his employer was not contradicted by other evidence, however, the probative value of that evidence is dependent upon whether the appellant’s recollection was reliable. The Member did not deal with that aspect of the evidence.
The appellant asserts that the Member overlooked his hand-written commentary of Dr Clarke’s report. As described above, the transcript of proceedings records that the Member did not overlook that document, she merely had difficulty with the relevance of the document.
The document discloses that the appellant contested many of the matters recorded in the clinical notes. Those criticisms may or may not have been relevant to the issues before her, but they were evidence in the appellant’s case and the appellant’s counsel made submissions about that evidence.[61] The evidence required some degree of consideration and, if rejected on the basis of relevance or on any other basis, that rejection should have been explained.
[61] T55.18–56.31.
In respect of an allegation of error involving procedural fairness, the appellant needs to show that the departure deprived him of the possibility of a successful outcome. To negate that possibility, it is necessary for a Presidential Member to find that, if the proceedings had been properly conducted, the evidence could not possibly have produced a different result.[62] Without a proper evaluation of all of the evidence, which is not appropriate when the errors established in Ground Two, Ground Four and in this ground result in the matter being remitted to another Member, I am not able to conclude on the face of the evidence relied upon under this ground of appeal, if considered, could not possibly have produced a different result. It follows that this ground of appeal is made out.
[62] Stead v State Government Insurance Commission [1986] HCA 54, [147].

Ground Four: The Member erred by failing to give legally required consideration to the matter

The appellant contends that the Member erred by failing to give proper consideration to Dr Dinnen’s evidence that the medical error was irrelevant to the question of causation of the appellant’s condition. The Member included the fact that “the treatment error … left [the appellant] without medication appropriate to his condition” as a causal factor in her reasons for determining that the appellant’s condition was “unrelated to any events which might have occurred in the respondent’s employ.” Such a conclusion was contrary to Dr Dinnen’s opinion that that fact was causally irrelevant. In addition, Dr Clarke expressed the ultimate view in her report dated 24 November 2023 that:
“The clinical notes indicate that after the admission and commencement of antipsychotic medication in late 2011, [the appellant] stabilised and achieved a higher level of function than in the preceding years, including employment. Abrupt cessation of this medication approximately six months later, and two months after the dose was decreased due to side effects, is a likely cause or a significant contributor to any relapse at that time. This likelihood is increased when the agent given in lieu of the antipsychotic can have psychiatric side effects at supraphysiologic levels.”[63]
[63] Dr Clarke’s report dated 23 November 2023, AALD p 3.
I note that there was evidence provided by Dr Kurrle that the only error in the medication given to the appellant occurred on 3 October 2012, sometime after the appellant ceased work with the respondent. It is not apparent that there was any reference to that particular evidence in the submissions made to the Member. However, while Dr Dinnen did not explain his opinion that the medication error was irrelevant, there was a conflict between that opinion and the opinion provided by Dr Clarke. The Member’s reasoning process discloses that it appears she may not have considered Dr Dinnen’s view and did not reconcile the conflict between the two diverse opinions before determining that the medical error was in part causative of the condition.
The Member erred in so doing, and this ground of appeal succeeds.

CONCLUSION

The appellant has established error on the part of the Member in respect of Grounds Two, Three and Four raised in this appeal and the Member’s Certificate of Determination dated 1 March 2023 is revoked. While s 352(6A) of the 1998 Act provides that the decision may be revoked and a new decision can be made, s 352(5) of the 1998 Act limits the Presidential Member’s task to the identification of error and the correction of such error. The re-determination of this dispute requires a consideration of the evidence and the weight to be afforded to the available evidence. These are matters that generally fall within the scope of a primary decision-maker. For those reasons, I decline to re-determine the dispute and remit the matter to a different Member for re-determination.

DECISION

The time for the respondent to lodge its submissions is extended to 3 May 2024.
Leave for the appellant to amend Ground Two of the appeal is granted.
Leave for the appellant to add additional grounds of appeal following receipt of the transcript is refused.
The Member’s Certificate of Determination dated 1 March 2023 is revoked.
The matter is remitted to a different Member for re-determination.

Elizabeth Wood
DEPUTY PRESIDENT

17 September 2024