Rail Corporation New South Wales v Crilly - [2010] NSWWCCPD 84

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Rail Corporation New South Wales v Crilly [2010] NSWWCCPD 84
APPELLANT:		Rail Corporation New South Wales
RESPONDENT:		Thomas Crilly
INSURER:		Self-insured
FILE NUMBER:		A1-7443/09
ARBITRATOR:	Mr R Whitelaw
DATE OF ARBITRATOR’S DECISION:		2 March 2010
DATE OF APPEAL DECISION:		4 August 2010
SUBJECT MATTER OF DECISION:		Psychological injury; expert evidence; sections 9A and 11A of the Workers Compensation Act 1987; adequacy of reasons; disease.
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:		Walker Legal
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 2 March 2010 is confirmed. The appellant is to pay the appeal costs of the respondent worker.

INTRODUCTION

This appeal concerns a worker who claims to have suffered psychological injury as a result of a communication received from his employer relating to his long absence from work following a non-work-related injury.

BACKGROUND TO THE APPEAL

Thomas Crilly (‘the worker’) was employed by Rail Corporation New South Wales (‘RailCorp’) on 24 October 2005 as a presentation services coordinator. He found his work at Central Station stressful and consulted a general practitioner, Dr Wong, on 23 November 2005 regarding this. He did, however, continue to work until May 2006, when he made a claim for workers compensation based on work-related depression. After initially declining to do so, RailCorp accepted liability for this and made payments of compensation for a time. In July 2006, the worker made a gradual return to work at Campbelltown Railway Station, which was nearer to his home.
The worker injured his left knee at work on 28 March 2007 and made a claim for compensation in respect of this, which was accepted. He took time off only for surgery to his knee in August 2007. His recovery from the surgery was delayed because of a back injury sustained during the administration of an epidural anaesthetic and he returned to work in October 2007. On 18 April 2008, while at home, he was assaulted and suffered facial and head injuries. The worker was admitted to hospital and later had plastic surgery. He then saw a number of general practitioners, principally Dr Nguyen and Dr Vu of Mt Annan Medical Centre, who gave him certificates as to his unfitness for work by reason of the assault. These the worker supplied to RailCorp, with the result that he was on leave of various kinds, paid and unpaid, until January 2009. A particular certificate of Dr Vu certified his unfitness up to 2 January 2009 and there was some confusion at RailCorp as to whether a further certificate had been supplied.
On 6 January 2009, Ms Karen Stuardo wrote to the worker on behalf of Mr Peter Worboys, the Human Resources Manager, concerning his absence from work, allegedly without any advice, since 3 January 2009. It was claimed that the worker had not contacted his manager regarding his further absence and attempts by the Acting General Manager Presentation Services, Mr Grant Jones, to speak to him on two telephone numbers had been unsuccessful. The worker was asked to contact Mr Jones by telephone upon receiving the letter in order to discuss his absence from work. The letter finished with this statement: “Failure to do so may result in it being considered that you have abandoned your employment with RailCorp”.
The worker responded to this letter by email on the same day to Ms Stuardo, indicating that he had submitted a medical certificate by email to Mr Le Gallant on Sunday 4 January 2009. He also indicated what his correct phone numbers were and that Mr Worboys and Mr Le Gallant had previously contacted him on those numbers. Ms Mesa, the Acting General Manager Human Resources at RailCorp, wrote to the worker on 15 January 2009 explaining that Mr Le Gallant was off duty for medical reasons and other staff were unaware of emails and certificates sent by the worker to him. Additionally, Mr Worboys and Mr Olsen, described elsewhere as Acting General Manager Human Resources, were on annual leave when the certificate expired on 2 January 2009. The worker responded to the correspondence by emails to various members of RailCorp staff, including the Chief Executive Officer, Mr Rob Mason, to whom he complained that he was being “targeted” by Mr Jones. Although the worker had submitted a medical certificate of unfitness from Dr Nguyen for the period 2 February 2009 to 2 March 2009 by reason of a “medical condition”, following a consultation of 23 February 2009 with Dr Wong, the worker submitted a certificate which related his unfitness for work to depression.
There are two certificates of 23 February 2009 from Dr Wong in evidence. The first, which was date-stamped as received by RailCorp on 25 February 2009, stated that the injury occurred “after excessive workload but recurrence due to letter from RailCorp dated 6/1/09”. It certified him unfit until 2 March 2009. The second of the certificates, which is date-stamped 17 March 2009, referred only to the letter of 6 January 2009 and certified the worker unfit until 18 March 2009. Dr Wong issued a number of subsequent medical certificates relating to the worker’s absences with depression which was said to be caused by receiving a threatening letter from RailCorp.
On 2 March 2009, Ms Defina of RailCorp Workers Compensation Services, wrote to the worker advising that his claim for compensation in relation to injury sustained on 23 February 2009 was denied pursuant to sections 11A(1), 9A, 4 and 33 of the Workers Compensation Act 1987 (‘the 1987 Act’). The issues relevant to the decision were stated to be :
“The worker has been absent from work due to being unfit for a non-work related matter.
Any psychological condition, relating to excessive workload, he may be suffering from he recovered fully from in August 2006.
The letter dated 6.1.2009 forwarded to the worker from RailCorp was about his absence from work and is considered to be reasonable action in accordance with RailCorp’s Sick Leave and Absence Management Policies.”
A review of this decision was sought by the worker. However, Mr Adrian Kimber, the Litigation Manager of Workers Compensation Services, wrote on 20 March 2009 advising that RailCorp continued to deny liability.
A claim for workers compensation was completed by the worker on 19 March 2009. In this, the date of injury was given as 6 January 2009 and the circumstances of the injury were described as follows:
“Received letter from RailCorp HR by registered mail threatening to terminate me for ‘abandonment of employment’ for being one day late with medical cert. when it was already supplied.”
The injury was said to be “stress/anxiety” and the date of previous similar injury was given as 25 May 2006.
An Application to Resolve a Dispute was registered with the Workers Compensation Commission (‘the Commission’) on 16 September 2009. In that application, two dates of injury were specified, namely 15 May 2006 and 23 February 2009. In relation to the first, the particulars of the injury were given as “[d]ue to the nature and conditions of employment from November 2005 to May 2006” and, in relation to the latter date, “the nature and conditions of employment from November 2005 to February 2009”. The injury is described as “Psychological/Psychiatric Injury – Major depressive episode”. Weekly compensation was claimed from 23 February 2009 onwards.
A Reply was lodged on behalf of RailCorp and the proceedings came before a Commission Arbitrator who held a teleconference on 21 October 2009. A conciliation/arbitration was held on 15 December 2009 and, on 2 March 2010, the Arbitrator found in favour of the worker. The claim for weekly compensation was limited at the arbitration to the period up to 15 December 2009.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’ dated 2 March 2010 records the Arbitrator’s orders as follows:
“1.        That the Respondent pay weekly compensation to the Applicant as follows.
(a)     $1,621.60 gross per week from 2 March 2009 to 31 March 2009;
(b)     $1,654.40 gross per week from 1 April 2009 to 4 July 2009;
(c)     $389.10 gross per week from 5 July 2009 to 30 September 2009; and
(d)     $396.10 gross per week from 1 October 2009 to 15 December 2009.
2. That the Respondent pay the Applicant’s costs as agreed or assessed, certified as complex with an uplift of 20%.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to exclude from consideration the report of Dr Canaris dated 13 July 2009;
(b)finding that the worker had suffered a psychological injury or injuries from which his incapacity for work resulted;
(c)finding that RailCorp had not established a defence under section 11A of the 1987 Act;
(d)finding that the provisions of section 9A of the 1987 Act were satisfied;
(e)finding that the worker had suffered an aggravation, acceleration, exacerbation or deterioration of a disease, and
(f)failing to give adequate reasons for the findings which he made.

ON THE PAPERS REVIEW

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

LEAVE

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
It is not disputed that the monetary threshold specified in section 352(2) of the 1998 Act are met and that is clearly the case.
Accordingly, leave to appeal is granted.

EVIDENCE

Worker’s evidence

There is an unsigned, undated statement of the worker attached to the application. This was, however, adopted by the worker at the arbitration and accepted accordingly. The worker said he was fit and well when he began work with RailCorp. He then related suffering injury to his left knee on 28 March 2007 which required an operation in September of that year to repair a torn meniscus. He had received workers compensation payments for this injury. As a result of the use of an epidural anaesthetic, he said he suffered a back injury and had back pain. At Christmas 2008, he hurt his right knee while at home and underwent right knee surgery in March 2009. He was assaulted on 18 April 2008 by unknown assailants and suffered very severe injuries to his mouth and teeth. As a result of this assault, he suffered two grand mal seizures which he had not had before. Because of these seizures, he had been put off work because of a policy of RailCorp preventing a person who had had seizures from working for a period of a year. He then related the events of 2006 leading to a severe depressive episode in respect of which RailCorp had initially denied liability. However, when he sought access to certain reports referred to in RailCorp’s letter of declinature, RailCorp reversed its decision. On 23 February 2009, he said he submitted another claim for depression by reason of a letter of 6 January 2009, which the worker said was threatening in tone. He said he was upset by the letter and contacted the Chief Executive of RailCorp. He then turned to alcohol use and said he felt intimidated, upset, depressed and anxious.
The worker also relies on various correspondence from RailCorp. On 6 September 2006, RailCorp wrote to the worker declining liability to pay compensation based on the opinion of a psychiatrist, Dr Samuell, of 4 September 2006. RailCorp, however, wrote on 12 October 2006 accepting liability for that claim, which was said to relate to an injury of 15 May 2006.
I have already referred to the worker’s compensation claim form of 19 March 2009 at [9]. It would appear that the worker had attempted initially to claim compensation on this occasion as a recurrence of the earlier psychological injury without submitting another claim form. As I have earlier noted, RailCorp responded to this on 2 March 2009 by declining liability, again relying on the report of Dr Samuell and letters of 6 January and 15 January 2009 addressed to the worker.
On 5 March 2009, MrWorboys, Human Resources Manager RailCorp, wrote to the worker concerning the worker’s inability to attend duty since 18 April 2008 and his providing a further medical certificate from Dr Wong with a stated unfitness to return to work from 2 March 2009 to 13 March 2009 because of depression. He advised that RailCorp was required to ascertain his long-term prognosis in order to determine whether he would resume duty or not. If not, consideration would be given to the termination of his employment on medical grounds. Attached to Mr Worboys’ letter, were letters that he requested the worker provide to his treating doctors, to enable RailCorp to make a decision on his employment status.
On 9 March 2009 the worker again emailed the Chief Executive and Mr Michael Farhat. What this latter gentleman’s position was is not stated. In that email he set out that he had been directed by Human Resources in October 2008 to attend HFI (Health for Industry) and had been advised by the doctor he saw there, Dr Notte, that, under national guidelines for rail workers, he could not return to any rail duties for a year following a seizure. This was the last he heard about it until he received the letter of 6 January 2009, which he said threatened to terminate [his services] for abandonment of employment because he was one day late with a medical certificate. He contrasted what was said by Mr Worboys in his letter of 5 March 2009 with the good wishes of Ms Mesa in her letter of 15 January 2009.
On 23 April 2009, Mr Glen Hill, Manager, Workers Compensation Services, wrote to the worker in response to three compensation claims. In one, claim No 2090575, liability was declined. Although it is not entirely clear, this would appear to be the claim following the events of January and February 2009. This letter also dealt with claim No 2073464 which would appear to be the left knee injury of March 2007. The worker had requested a review of a decision made in relation to massage and chiropractic treatment. In relation to claim No 2060970, which I take to be the initial claim for depression, the worker claimed the cost of Efexor, but, as he had not supplied evidence supporting this, and had not attended a medical examination arranged by RailCorp, liability was suspended under section 119 of the 1998 Act. He was advised that a further appointment with Dr Samuell would be arranged.
On 27 May 2009, Mr Gary Olsen, Acting General Manager Human Resources, wrote a long letter to the worker. In paragraphs down to and including [38], I deal with the contents of that letter. Initially, reference was made to the worker declining to provide medical evidence from treating doctors, which Mr Worboys had requested by letters of 5 March 2009 and 20 March 2009. The purpose of this letter was stated to be to:
“…
·document your fitness to continue issues and how RailCorp has managed these issues;
·respond to your email to Mr Mason;
·outline how RailCorp intends to manage your fitness for duty.”
Mr Olsen pointed out that any workers compensation claim the worker may have was a separate issue to his absence from work because of illness or other non-work-related injury. The worker was reminded that he had agreed to undertake medical assessments, when required, by his letter of appointment and also by the relevant employment agreement. He had last worked on 14 March 2008 and had been on paid and unpaid sick leave, together with short periods of annual leave, from 18 April 2008. The medical certificates provided by the worker in relation to his absences from 18 April 2008 to 30 May 2009 were summarised. There are 18 of these, with the first 12 relating to the worker’s absences as a result of the injury on 18 April 2008 and the remaining six relating to depression, either as a recurrence of the earlier psychological injury or as a result of receiving the letter of 6 January 2009. As I have earlier said, the certificates in relation to the worker’s unfitness as a result of his assault were obtained from various doctors at Mt Annan Medical Centre, whereas the worker again consulted Dr Wong in relation to his depression.
On 20 February 2008, the worker had undergone a periodic health assessment by HFI which advised in an interim report that the worker was fit for duty, subject to review, valid to 20 May 2008. He was to attend a review with HFI on 20 May 2008 but did not do so because of the injury of 18 April of that year. A further appointment was made for him to attend HFI on 27 June 2008 and he was, it was said, assessed as being fit for duty subject to review on 27 June 2009. However, the worker continued to submit medical certificates of unfitness for duty because of medical conditions associated with his assault in April 2008. On 11 September 2008, the worker attended a meeting with Mr Worboys in which he was asked to provide details relating to his sick leave status. In response, the worker had emailed Mr Worboys outlining the injuries suffered in the assault of 18 April 2008 and the seizures following that assault and advising that he had been referred to a neurologist, Dr Griffiths, who had ordered further tests and was to see the worker again on 2 October 2008.
On 30 September 2008, Mr Worboys asked the worker for the address of Dr Griffiths, so that he could obtain information from him regarding the worker’s medical condition. This was supplied and, when Mr Worboys wrote requesting an assessment of the risk of further seizures and of the worker’s capacity to perform rail safety work, Dr Griffiths advised Mr Worboys that the worker had instructed him not to release any information regarding his medical status. This was confirmed by the worker in an email of 4 October 2008.
On 13 October 2008, RailCorp had written to the worker advising of a triggered health assessment scheduled at HFI on 23 October 2008 in order to determine his fitness to carry out “the inherent requirements of [his] position as a Presentation Services Coordinator”. Around that time, the classifications for rail safety workers were amended so that, although that letter referred to his being a Category 2 rail safety worker, he had become a Category 3 worker. (This change in classification has significance in terms of the worker’s fitness to work because of his having suffered two seizures.)
On 6 November 2008, Dr Notte of HFI provided a report recommending:
“…
·that you not carry out rail safety work until cleared by Dr Griffiths.
·that you should return to office duties with a reduced workload and with minimal time pressured duties within 4 to 6 weeks.
·that if coping with full time work and if cleared by Dr Griffiths for Category 3 rail safety work that you return to full duties in 4 to 6 weeks.
·a further medical review in 6 months.
·if there are concerns regarding your performance upon return to work an earlier assessment with a view to neuropsychiatric testing may be necessary.”

Dr Notte provided an addendum to his report after receiving a letter from Dr Griffiths which was not made available to RailCorp. Dr Notte advised the worker was fit to return to Category 3 rail safety work, but recommended a gradual return to work. A copy of this report and the addendum were provided to the worker by email of 10 February 2009. The letter then dealt with medical certificates submitted on 3 December 2008 which certified unfitness to 2 January 2009 and then the letter written on 6 January 2009. Railcorp expressed the opinion that the worker’s concerns regarding the letter of 6 January 2009 had been addressed.
The letter continued that, on 16 January 2009, Ms Karen Stuardo, Human Resources Manager CountryLink & Hunter, Service Delivery Group, emailed the worker to advise that RailCorp had concerns about apparent discrepancies between medical advice in Dr Notte’s HFI assessment report and what was contained in the medical certificates provided by the worker’s treating doctor, Dr Vu, dated 3 December 2008 and 2 January 2009 which certified him unfit because of “Head trauma” and “Chronic headache memory loss and tinnitus”. The worker was asked to give his consent for RailCorp’s Chief Health Officer, Dr Casolin, to contact Dr Vu or to accept that RailCorp would have to refer him to HFI for a further medical examination. The worker had, it was said, declined to give consent as requested and asked RailCorp to organise a further health assessment.
RailCorp sought to have the worker examined by HFI and, on two occasions in February 2009, he failed to attend these appointments. He was asked to consent to Drs Nguyen, Wong and Vu providing information about his medical condition. He declined to do so and stated in an email of 5 April 2009 that “there is little to be gained from my NTD [nominated treating doctors] completing such a form as the process of a PLA [provisional liability assessment] re my WC claim has not as yet been conducted and I await feedback from RailCorp re this matter”. Mr Olsen noted that determinations under sections 74 and 287A of the 1998 Act had been made and liability had been declined. (These sections deal with notices to be given when liability is disputed and reviews of those decisions.)
On 9 March 2009, the worker then emailed the Chief Executive Officer, Mr Mason, relating what he had been told about Dr Notte when assessed on 23 October 2008, which he understood to be that he could not return to work for a period of one year following a seizure.
Mr Olsen responded to the matters in the worker’s email and advised that there was no time specified preventing him from returning to work following a seizure since he was a Category 3 rail safety worker. Dr Notte had assessed him as medically fit to perform his duties, RailCorp had not threatened him with termination and his email was misleading in that, from 23 February 2009, his absence from work was covered by medical certificates relating to his depression. He was asked not to email the Chief Executive directly.
Mr Olsen then summarised the worker’s current status. He had not worked since 14 March 2008, that is, a month before the assault on 18 April 2008. He had been assessed by HFI as being fit to resume his duties in June and November 2008 but had submitted medical certificates inconsistent with the HFI report. Mr Olson advised the worker that he was again to be referred to HFI for a triggered health assessment and he was required to attend that assessment in accordance with his conditions of employment. He was advised, that, if he was not able to resume duties within a reasonable time, RailCorp would give consideration to medical termination in accordance with a copy of the Termination on Medical Advice Policy which was enclosed.
On 26 August 2009, Mr Worboys advised that a review interview fixed for 28 August had been rescheduled to 3 September 2009 to allow for the attendance of the worker’s legal representative. The worker had emailed on 31 August 2009 seeking a further rescheduling to 7 September 2009. On 1 September, the worker indicated that, on legal advice, he would not be attending in view of pending proceedings in the Commission.
On 12 January 2009, Dr Wong wrote to RailCorp enclosing a copy of clinical notes relating to his attendances on the worker after 23 November 2005 and summarising his treatment of the worker. Dr Wong had first seen him on 23 November 2005, when he reported that he was unable to sleep due to his stressful job at RailCorp. The worker had been prescribed Cipramil for chronic depression and Dr Wong prescribed Stilnox. On a date which appears from the doctor’s notes but not his report to be 13 or 23 March 2006, the worker ceased taking Cipramil as his depression had settled. On 15 May 2006, the worker told Dr Wong that he had thought of suicide. He complained that he was working seven days a week and the two previous managers in his position had resigned. On 18 May 2006, Dr Casolin, the Chief Medical Officer of RailCorp, had contacted Dr Wong to arrange the return to work of the worker on decreased duties. However, on 19 May 2006 the worker presented a WorkCover certificate in order to allow him to stop working. On 23 May 2006, the worker attempted suicide and he was admitted to Campbelltown Public Hospital. He was prescribed the drug Efexor which did not appear to be working and Zoloft was prescribed. In July 2006, the worker told a friend who was a policeman that he wanted the police to shoot him. The police were called but the worker was not shot. He had been drinking heavily and was taken to Campbelltown Hospital and then Rozelle Hospital for four days. He was allowed to return to work on a graduated basis. Dr Wong had last seen the worker on 15 November 2006 when he was working at Campbelltown railway station. He said he did not know the worker’s then current fitness or physical capabilities.
In a report of 27 February 2009, Dr Wong advised RailCorp that the worker’s anxiety and depression initially occurred after an excessive workload. The worker had had a relapse of his anxiety and depression following receipt of the letter of 6 January 2009. Dr Wong again attached a copy of his clinical notes and a letter from Dr Ian Burman, psychiatrist, who had, Dr Wong said, suggested that the worker could have a recurrence of his depression. There are also a number of certificates in evidence from Dr Wong to which I have earlier referred.
Dr Wong appears to be referring to a report of Dr Burman dated 9 October 2006 which is in evidence. Dr Burman saw the worker at the request of RailCorp on 29 September 2006. The worker told that doctor about his becoming anxious and depressed with the work he had to do at RailCorp. While he was in Campbelltown Hospital, a psychiatrist had prescribed Efexor, which had brought an improvement after about five days. There is a history of heavy drinking at times. When he stopped taking Efexor on his own initiative, he had suffered a relapse and began drinking again. By mid-July 2006, he had gone back to work full time at a desk job and the worker told Dr Burman that he thought he had made a full recovery with no symptoms. However, he had been told he would have to take Efexor for a moderately long period, with which Dr Burman agreed. The period specified by Dr Burman was from six months to two years after an episode, the duration of which would depend on the treating doctor. The worker said he felt entirely well and would like to return to full-time work. He told Dr Burman that he had no previous psychiatric complaints. Dr Burman considered the worker was fit for all work as a rail safety officer supervisor and would be fit to do night shift duties at Campbelltown. His final summary was that the worker suffered from a major depressive disorder which had apparently been precipitated by an excessive workload and his inability to delegate this or to complain to his supervisors about it. Dr Burman thought that the worker’s alcohol abuse was almost certainly secondary to his major depression and was unlikely to return. However, he cautioned that major depressive disorders do sometimes return after a period which was the reason for prolonged treatment with antidepressants. Future episodes may be decades away or may occur more frequently or never. He thought that, on clinical grounds the next depression would be many years away and, if the worker sought medical attention early in that depression, he would respond rapidly to antidepressants as he had on that occasion.
The worker was examined by a forensic psychologist, Ms Sarah Wells, at the request of RailCorp on 17 June 2009. Ms Wells was employed by HFI, to which reference has already been made. The report of Ms Wells is listed in the application as a report of Dr Wijetunga, but that is clearly incorrect.
Ms Wells obtained a history from RailCorp that the worker had a history of suffering from depressive episodes from 2001 while he was working for the New South Wales Police Force and that there were further episodes of depression in 2006 and 2009. Ms Wells recorded that the worker had ongoing symptoms of depression and memory loss from the assault in 2008. She obtained a further history that the worker had been on leave from the Police Force from 2001 to 2003 before he resigned in April 2003. In that period, he was working as a manager for a security company.
Ms Wells took a history of the work pressures to which the worker was subjected while working as Presentation Services Coordinator at Central Station. She noted that he had been taken to hospital, psychiatrically scheduled for four to five days and placed on antidepressants. However, in September/October 2006. he was considered fit to return to full duties, and did so at Campbelltown Railway Station. She then noted the knee injury in March 2007 and subsequent surgery which required him to be away from work until October of that year. The worker complained that, on his return to work, he was placed in front of the General Manager’s office at work and felt like “a naughty little boy”. The worker was later advised he would be returning to Central Station to carry out the work he had formerly done. He then took sick leave and annual leave because his symptoms of depression had returned. He did, however, return to work for two to three months, but in a changed position providing support to the Business Manager. There was then a history of the head injury in April 2008 and the two seizures. Ms Wells was told Dr Notte of HFI in November 2008 had considered the worker fit to return to office duties, but not to carry out rail safety work. However, upon Dr Notte receiving some communication from Dr Griffiths, the worker was certified fit to gradually return to Category 3 safety work. The worker then handed in another medical certificate that he was unfit for work from 2 December 2008 to 2 January 2009 due to head trauma and chronic headaches. A similar certificate as to unfitness followed and then there is a history of the events following his receipt of RailCorp’s letter of 6 January 2009. The worker said that his symptoms of depression significantly increased after receiving that letter. Accordingly, he commenced seeing Dr Wong again who certified him unfit because of depression.
The worker told Ms Wells that he had refused to sign authorities to release medical information to RailCorp because he was in the process of putting in an application for workers compensation. The worker had been taking Efexor since May 2006 and his dosage had increased from 150 mg to 225 mg because of increased symptoms of depression which related to what he described as “his poor treatment by RailCorp”. He considered that the management of RailCorp and particularly Mr Jones were trying to get rid of him. The worker did not want to return to work at Central, but was keen to return to Campbelltown.
On examination the worker appeared to be depressed and Ms Wells noted his range of mood was reduced. The worker reported numerous symptoms associated with the diagnosis of major depressive disorder. Ms Wells spoke to Dr Wong and was advised that the Efexor had been increased from 150 mg to 225 mg on 5 June 2009 because of the increase of symptoms in depression.
Ms Wells considered that the worker was unfit for duties as he was suffering from a major depressive disorder for which he was not receiving sufficient treatment at that time. In relation to prognosis and medical termination, Ms Wells said the following:
“Mr Crilly’s medical certificates appear to be conducive to his and his treating doctor’s reports of events and symptoms leading up to and including the period after him receiving the letter of abandonment of employment.”
A psychiatrist, Dr Canaris, examined the worker on 1 July 2009 at the request of his then solicitors and obtained a history substantially in accordance with what has been earlier related. Dr Canaris was told by the worker that, as a Category 2 employee, he was not allowed to return to work with a history of seizures. However, the worker’s position had been reclassified as a Category 3, which would have allowed him to return to work. The worker was, he said, unaware of this. Dr Canaris concluded that the worker would have been in a vulnerable state at the time he received the letter of 6 January 2009. He thought that the letter sent was threatening in tone and inappropriate given the worker’s extended absence from work following the serious assault. He considered that RailCorp had attempted to deal with the most recent claim by recycling an old unfavourable report of Dr Samuell which indicated that the worker’s psychological problems were as a result of alcohol abuse. Dr Canaris made this comment and that relating to the letter while he purported to “eschew the role of advocate”. He thought that the further correspondence received by the worker from RailCorp might, taken in isolation, be considered reasonable. However, in the context of the worker’s pre-existing difficulties, it would increase his worrying and aggravate his depression. He thought that the letters could become “a self-fulfilling prophecy eventually culminating in medical retirement”. So far as the worker’s unwillingness to authorise RailCorp to speak to his doctors, Dr Canaris thought that this was consistent with the worker not wishing his health issues to be open to the scrutiny of management, but not objecting to his treating doctors discussing his condition with other doctors, which had happened.
In conclusion, Dr Canaris thought that the worker was not well enough to return to work at RailCorp. He thought the worker’s closed head injury had contributed to his vulnerability to depression. However, the principal cause of the worker’s predicament (as Dr Canaris termed it) seemed to be his conviction that the employer bore him some ill-will and wished to have him removed.
The worker sought to rely on a number of further documents not attached to the application. There is an incomplete report dated 24 July 2006 from Mr Peter Briggs, a clinical psychologist, employed by Claims Intervention, who had interviewed the worker and other persons, including Dr Wong. The arbitration proceeded on the basis of this incomplete documentation without any comment from either of the parties or the Arbitrator. The report finishes at page 19 with a reference to the “following items” which were considered substantial contributing factors to the worker’s psychological injury. These are presumably specified in the missing page or pages. As Railcorp ultimately accepted liability for the 2006 psychological injury, nothing would appear to turn on this. Mr Briggs’ opinion appeared earlier in the report and I consider the missing conclusion would most likely be a recapitulation of what he had earlier said.
Mr Briggs considered the worker had a major depressive episode from which it seemed he had substantially recovered at the time he was seen. He had ceased taking antidepressant medication. Mr Briggs concluded there was no evidence of a major pre-existing mental disorder and he had suffered a reasonably severe psychological injury from around 15 May 2006, resulting in two periods of hospitalisation. He identified what he termed “work contributing factors” as workload and the worker’s management style. He concluded that employment was a substantial contributing factor to the injury.
Dr Zoltan Zsadanyi, psychiatrist, saw the worker at the request of AFA Insurance Pty Limited on 28 July 2009 in connection with the worker’s claim on an income protection policy following the assault of April 2008. Dr Zsadanyi was told that the worker had been prescribed Cipramil for post-traumatic stress disorder between 2000 and 2001. Dr Zsadanyi obtained a history of the events in 2006 and his admission to hospital for two short periods. The worker claimed worsening of mood partly as a result of failing to receive any payments from that insurer for the preceding two or so months. The worker told Dr Zsadanyi that he had not worked since the assault, which the doctor referred to as an alleged assault. The doctor had access to a police report which doubted that the worker had been assaulted at all. The worker related an attempt made by RailCorp to terminate his employment in March 2008.
The worker did not tell Dr Zsadanyi that he had an increase in his depression following receipt of the letter of 6 January 2009. Dr Zsadanyi referred to a neuropsychological assessment by Professor Reid on 3 April 2009 which is not in evidence. Dr Zsadanyi thought it possible that the events of 18 April 2008 and what followed could have been alcohol related and the worker may have been suffering from alcohol withdrawal when he discharged himself from the Emergency Department following the assault.
Dr Zsadanyi concluded that the worker had a pre-existing diagnosis of post-traumatic stress disorder as a result of his work in the Police Force, but also suffered depression in early 2006. He thought that antidepressant medication should be continued and he noted that the worker was not receiving psychological therapy, nor had he been referred to a psychiatrist for treatment. Dr Zsadanyi, however, considered that the alleged assault had resulted in a relapse of the worker’s depression and also some cognitive impairment. He thought the worker was able at that time to resume work on a graduated basis.
Two further letters from RailCorp to the worker are relied on. On 29 October 2009, Ms Mesa wrote, referring to her letter of 2 September 2009 in which she had advised that RailCorp was considering terminating his employment on medical grounds. The worker had reportedly replied by an email of 4 September 2009 advising that he was prepared to take up coordinator duties at Campbelltown. Ms Mesa advised that the worker had not provided a viable alternative to medical termination and noted that he had submitted on 2 October 2009 a further WorkCover certificate of unfitness up to 12 December 2009. Ms Mesa’s letter of 29 October 2009 advised that RailCorp had decided to terminate his employment on medical grounds from the date of the letter relying on a number of matters which are as follows:
“
·You last performed duties in your substantive position on 14 March 2008. Since 21 April 2008 you have been submitted medical certificates certifying that you are unfit for duty on medical grounds;
·You are currently subject to a medical certificate from your treating doctor certifying you as being unfit for duty due to depression through to 12 December 2009;
·The psychological assessment report prepared by Sarah Wells following your assessment on 6 July 2009 confirms that you are unfit for your substantive duties due to a major depressive disorder. Ms Wells estimates you will remain unfit on these grounds for a minimum of a further six months from the date of her report;
·You have provided no information that indicates you will be capable of resuming your duties in the near future;
·RailCorp has been unable to obtain a full prognosis about your capacity to return to your substantive duties and particularly the continuing impact of your head injuries on your fitness for duties because:
oYou declined to attend an appointment with Health For Industry on 23 February 2009 on the grounds that you were absent from work on sick leave;
oYou have refused to give consent for RailCorp’s Chief Medical Officer to contact your treating doctors to discuss your medical condition;
oYou have declined to provide reports from your treating doctors in relation to your medical condition;
oYou decline to attend an appointment with Health for Industry on 16 June 2009;
oYou decline to attend an appointment with Health for Industry on 14 July 2009.”

There was a further letter from RailCorp to the worker of 27 November 2009 regarding the withholding of an amount from the moneys to which he was entitled on account of his failure to return keys in his possession. Nothing would appear to turn on this.

RailCorp’s evidence

Two reports of Dr Samuell are relied on. The earlier of these is dated 4 September 2006. When the worker was seen on 24 August 2006, he told Dr Samuell that he had coped with stressors at work by drinking to excess. Dr Samuell considered that the most compelling cause of the worker’s “demise” was his serious alcohol consumption. At that time, the worker was free from psychological illness, but was taking an antidepressant (Efexor 150 mg). Dr Samuell considered that it was common for people who drank alcohol excessively to state that the life events caused the alcohol consumption rather than the other way around.
Dr Samuell reviewed the worker on 23 November 2009 (report 30 November 2009). At that time, the worker was trying to have his medical termination overturned. The worker told him that, in February 2009, when he became depressed again, he was not drinking. He told Dr Samuell he considered the appointments organised by RailCorp for him were a form of harassment. He said he could return to work as a presentation coordinator at the time Dr Samuell saw him, but he had been taking Efexor 225mg for the preceding 2½ years. Dr Samuell thought he smelt alcohol on the worker’s breath, although he denied drinking prior to the examination. Dr Samuell concluded that he found “no compelling evidence that Mr Crilly was either psychologically re-injured by his employer or suffered a new psychological injury from his employer as he alleges”. Since Dr Samuell had not seen him at the time, he could not confirm that he was psychiatrically unwell as he claimed following receipt of the letter of 6 January 2009, but, at the time he was seen, the worker had no psychiatric disorder and was fully fit to resume his employment.
Dr Notte of HFI performed an assessment of the worker’s fitness for employment on 23 October 2008. He reported to RailCorp on 6 November 2008. He had been informed by RailCorp that the classification of presentation services co-ordinator had been changed from Category 2 to Category 3 rail safety position. (It is not clear when this change took place.) He noted that the worker had had major episodes of depression in 2001 and in 2006 and had been off work since the assault in April 2008. The worker complained of tinnitus as his major problem and was to see an ear, nose and throat specialist in early December ,although his headaches had reduced in severity. He was reported to be keen to return to full duties at RailCorp. Dr Notte said that the worker was able to carry out his duties as a presentation co-ordinator. However, Dr Griffiths, the treating neurologist, should clear him for work on or near the track or platform edge.
In an addendum to his report, Dr Notte stated that he had received a report from Dr Griffiths which said that there was no evidence of long-term seizure disorder. An EEG of 7 May 2008 showed no epileptiform activity. The worker had been referred to a specialist for tinnitus. Dr Notte concluded that the worker was fit to return to Category 3 rail safety work and was fit to work in and around station platforms and on railway tracks. However, Dr Notte was of the opinion that the worker should avoid time-pressured duties for the first four to six weeks. (The worker’s account of what he was told by Dr Notte differs from what the doctor has said in his report. He said that he was shown a document which indicated that he could not return to work for one year following a seizure and Dr Notte could see no way around that.)
The employer also relied on its sick leave and absence management policies.

SUBMISSIONS AT ARBITRATION

So far as “injury” was concerned the worker relied on the events of both 2006 and 2009. Dr Wong had left open the possibility that what occurred in 2009 was a relapse of the injury which occurred in 2006. The worker’s condition had continued to deteriorate as was evidenced by the increase in the dosage of Efexor in June and July 2009. This was consistent with the history given by the worker to Ms Wells on 6 July 2009.
RailCorp submitted that the medical evidence was that the worker had experienced a full recovery from the psychological injury which occurred in 2006. So far as the events of 2009 were concerned, Dr Zsadanyi had taken a history of the worker slipping into depression in the weeks preceding the consultation in July 2009 and no history of an injury in January 2009. The worker had related his depression to the assault which he had suffered in April 2008 and the insurer’s failure to continue payments. The opinion of Ms Wells was, RailCorp submitted, weakened by her not obtaining a history as others had that the worker’s symptoms had resolved in 2006. There had been two prior episodes of major depression, with the first in 2001, and the second in 2006, as Dr Notte had related. The opinion of Dr Samuell was relied on that the most compelling cause of the worker’s depression was his serious alcohol consumption and that in November 2009 that there was no compelling evidence found by that doctor that the worker had been psychologically injured by his employer.
In relation to the section 11A aspect, the worker submitted that the action by the employer, namely sending the letter of 6 January 2009, was not an action in respect to retrenchment or dismissal and that the reference to abandonment of employment was something else entirely. Section 11A was not to be given a generous application and the actions of RailCorp through various staff, particularly Mr Worboys, had not been reasonable, given that the last day of absence from work for which a certificate had been noted by RailCorp was 2 January, a Friday, and the letter in relation to a missing certificate was sent the following Tuesday. At that time, those staff who had knowledge of matters relevant to the worker and his absence were on their Christmas/New Year vacations. It was unreasonable of Mr Worboys to have sent the letter of 6 January referring to the inability to contact the worker on certain telephone numbers when Mr Worboys had in fact previously contacted the worker on other numbers which were known to him. (As I have earlier indicated, the letter in question was signed by Ms Stuardo, although written in Mr Worboys’ name.)
RailCorp submitted in relation to this aspect that, on one view of the facts, the worker’s injury had been wholly or predominantly caused by reasonable actions of the employer with respect to retrenchment or dismissal. The correspondence from RailCorp, including the letter of 5 March 2009, were part of a process leading towards dismissal and were thus within the categories of actions specified in section 11A. The worker had referred in his claim for compensation to his understanding that RailCorp was threatening to terminate him. The letter of 6 January 2009, when fairly and objectively considered, was not unreasonable or aggressive in tone.
So far as fitness was concerned, it was submitted on behalf of the worker that there was no real dispute regarding incapacity. The opinion of Dr Samuell of 30 November 2009 was inconsistent with the opinions of other doctors and psychiatrists, and a certificate of 29 November 2009 certified the worker unfit until 17 December 2009. (This certificate does not appear to be in evidence.)
RailCorp relied on the opinions of Drs Zsadanyi and Samuell that the worker was not psychologically incapacitated when seen by those doctors, respectively in August (sic? July) and November 2009. RailCorp also relied on the worker submitting certificates for a long period following April 2008 in relation to the effects of the assault, and, then in February 2009 obtaining certificates relating to depression.
So far as the opinion of Dr Canaris was concerned, it was submitted on behalf of RailCorp that he had stepped out of his role as an expert witness and had become an advocate. This followed from Dr Canaris’ comments in relation to section 11A and the use which RailCorp made of Dr Samuell’s earlier report in denying liability in March 2009.
In response to this, it was submitted on behalf of the worker that section 354 of the 1998 Act required the Commission to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. It was also pointed out that the Commission was not bound by the rules of evidence (section 354(2)).
The Arbitrator raised the question of the worker’s incapacity for work by reason of right knee surgery carried out in March 2009. This was not work related and is to be distinguished from the injury to the worker’s left knee two years before. Counsel for the worker indicated that reliance was placed on section 48 of the 1987 Act, which provides that compensation is payable in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity for work. Thus, the worker was entitled to compensation despite supervening incapacity from another cause.
Finally, RailCorp relied on weekly payments having been made to the worker for a period of eight weeks in 2006, with the result that, the period for which compensation was payable under section 36 of the 1987 Act, for the first 26 weeks of total incapacity, was to be accordingly reduced.

ARBITRATOR’S REASONS

The Arbitrator noted the parties’ agreement that the issues which remained in dispute were:
·   Did the worker suffer an injury arising out of the course of his employment?
· If so, did RailCorp have a defence to the worker’s claim pursuant to section 9A and/or section 11A of the 1987 Act?
·   Is the worker partially or totally incapacitated?
·   What is the worker’s entitlement to weekly payment for compensation?
The Arbitrator noted that, at the hearing, the application had been amended to limit the claim for compensation to the period from 23 February 2009 to 15 December 2009. After setting out the submissions by the parties, he then dealt with the report of Dr Canaris. The Arbitrator did not consider Dr Carnaris’ discussion of the reasonableness of the letter of 6 January 2009 was appropriate. However, he thought it could be gathered from the rest of Dr Canaris’ report that the worker was vulnerable to the risk of further mental illness. Dr Wong and Ms Wells had attributed the relapse of the worker’s anxiety and depression to receiving the letter of 6 January 2009.
In relation to the first of the issues identified, namely injury, he noted that there had been an injury within the workers compensation legislation in 2006 and payments had been made by RailCorp in respect of this. He noted that RailCorp was seeking to characterise the letter of 6 January 2009 as a separate injury divorced from the earlier depressive illness, thus enabling it to rely on the defences in sections 9A and 11A of the 1987 Act. The Arbitrator did not consider that the letter should be characterised in this way.
He noted the submission by RailCorp that Dr Zsadanyi took no history regarding the letter in question and concentrated on the assault. This, the Arbitrator thought, pointed out the flaw in relying on his report. (It should be borne in mind that this doctor’s report was put in evidence by the worker but substantially relied on by RailCorp.)
The gap in treatment by Dr Wong, the Arbitrator thought, pointed to the worker coping with his depressive illness, not necessarily a complete recovery as was asserted by RailCorp. The Arbitrator accepted the submission on behalf of the worker that Dr Samuell’s report was at odds with rest of the evidence and ought not be preferred.
The Arbitrator thought the most accurate diagnosis of the worker’s condition was that of Ms Wells, who used the word “recurrent” in relation to his major depressive illness. The Arbitrator thought it was unlikely that this illness had been completely cured, but rather that illness was in the process of resolving through medication. The letter of 6 January 2009 had caused a relapse in the worker’s condition and the Arbitrator thought it could be said, as the worker had claimed in his application, that his injury should be characterised as arising from the nature and conditions of his employment; that is, the major depression in 2006 which manifested itself again in January 2009 as a result of this letter.
As to the provisions of section 9A, he thought that for the reasons which he had given in relation to injury that the worker’s employment was a substantial contributing factor to the injury.
So far as section 11A was concerned, the Arbitrator did not consider that RailCorp’s actions were reasonable, since the relevant letter was, in his view, in aggressive terms, giving the worker little time to react and being unforgiving of any errors which may have occurred. The Arbitrator also accepted the submissions by the worker that the actions of RailCorp did not relate to “disciplinary and/or termination of the [worker’s] employment”.
The Arbitrator found that the worker was totally incapacitated as a result of the injury for the period claimed.
In summary, the Arbitrator found that the worker had suffered an injury, being the aggravation, acceleration, exacerbation or deterioration of a disease (depression) and the date of injury was 23 February 2010 (sic), the date on which the claim was made. Apparently, because the worker had a medical certificate for unfitness in relation to the effects of his assault up to 2 March 2009, the Arbitrator commenced the award which he entered from that date rather than the date of the certificate relating to depression of 23 February 2009. The rates of compensation were as agreed by the parties having regard to the payments made in 2006.

SUBMISSIONS

Seven grounds of appeal are relied on by RailCorp. These are:
“1.     That the Commission was in error in failing to exclude from evidence and taking into account the opinion expressed in the report of Dr Christopher Canaris on the basis that it offended the principles which governed the admissibility of expert evidence as expressed by the NSW Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [‘Makita’] ; South Western Sydney Area Health Service v Edmonds (2006) 4 DDCR 421[‘Edmonds’] and Hevi Lift (PNG) Ltd v Etherington (2005) 2 DDCR at 271 [‘Hevi Lift’].
2.     That the Commission was in error in finding the worker had discharged his onus of establishing that he had an incapacity for work as a result of a work-related injury being a finding unsupportable on the evidence.
3. That the Commission was in error in finding that work was a substantial contributing factor to any alleged incapacity as required by s9A Workers Compensation Act 1987 (as Amended) (‘the Act’).
4. That the Commission was in error in finding that the employer had not made out a defence within the terms of s11A of the Act.
5.     That the Commission was in error in failing to consider or adequately consider issues relevant to the matters to be determined.
6.     That the Commission was in error in failing to give adequate reasons for its determination.
7.     That the Commission was in error in determining that the injury sustained by the worker was a disease.”
I will deal with submissions made in respect of these grounds in due course. A Notice of Opposition to the appeal was filed on 18 May 2010, to which RailCorp objects as being filed out of time. Endorsed on the Application to Appeal is a direction that the worker is to lodge and serve a Notice of Opposition by 12 May 2010. Thus, the Notice of Opposition was lodged six days after the date specified. In his written submissions, the worker apologises for this and blames “administrative difficulties and a miscalculation”. In RailCorp’s submissions in reply in relation to the Notice of Opposition being out of time, it submits that no satisfactory explanation has been offered for an unstated application to extend time to file a Notice of Opposition and that the worker’s submissions should be excluded from consideration on the appeal.
Rule 16.2(7) of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides that a Notice of Opposition to appeal must be lodged within 28 days of a party being served with the Application to Appeal. RailCorp relies on the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 in opposing an extension of time in which to file the Notice of Opposition pursuant to rule 1.1.(6) of the Rules. As RailCorp concedes, the decision is not wholly in point as it concerned the question of late amendment of pleadings with the consequent adjournment of a four-week hearing.
What effect the exclusion of the Notice of Opposition and submissions from my consideration would have is not stated. I would still have to determine whether RailCorp’s arguments should be accepted and thus whether the appeal should succeed or not. In North Sydney &Central Coast Area Health Service v Fitzpatrick [2007] NSWWCCPD 115, Byron DP refused to extend the time for lodging the worker’s Notice of Opposition and submissions, but nonetheless dismissed the employer’s appeal. RailCorp has not pointed to any prejudice which it would suffer if time were extended and the period involved is short. I consider that I would be assisted by having the submissions from the worker in relation to the grounds of appeal in this case and accordingly extend time for filing the Notice of Opposition and submissions to 18 May 2010.

SUBMISSIONS, DISCUSSION AND FINDINGS

Ground 1: Dr Canaris’ report

In short, it is said that the Arbitrator should not have had any regard to the opinion of Dr Canaris since he had abandoned the impartial role he was required to have as an expert witness and had become an advocate for the worker. In addition, Dr Canaris is said to have relied on matters which were not established by evidence.
The Arbitrator said that he did not consider Dr Canaris’ comments on the letter in question to be appropriate and it is appropriate to conclude that he did not take them into account. He did, however ,refer at [34] of his reasons to Dr Canaris’ opinion that the worker was vulnerable as a result of “his previous episode of depression, his subsequent physical injuries and his closed head injury”. RailCorp refers to principles enunciated in Makita, Edmonds, and Hevi Lift as requiring that Dr Canaris’ report ought to be totally rejected. The judgment of Heydon JA in Makita has been referred to by Hodgson and McColl JJA in Paino v Paino [2008] NSWCA 276 (‘Paino’) as a “seminal exegesis” in relation to expert evidence. The passage most often quoted from the judgment of Heydon JA in Makita is at 743 [85] and is as follows:
“In short, if evidence tendered as expert opinion is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of the expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in H G v The Queen (at 428 [41]), on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’.”

RailCorp accepts that the passage from the judgment of Meagher JA in Beale represents an accurate statement of the applicable law. However, when the statements of principles are applied to the facts and circumstances of the case, the Arbitrator’s analysis is said to be inadequate as it offends all three basic principles outlined in that case.
The arguments in relation to these grounds repeat, to a large extent, those made in respect of other grounds and I think they have been adequately dealt with there, particularly in ground 2. I am not persuaded that the Arbitrator did fail to consider relevant matters, nor am I satisfied that he failed to give proper reasons. If there should be some deficiency in the reasons, then I have reviewed the Arbitrator’s decision as I am obliged to do and have come to the same conclusion for the reasons I have given. It is not necessary to disturb the Arbitrator’s finding on these grounds.

Ground 7: Disease

RailCorp complains that the worker made no claim that his injury was the aggravation, acceleration, exacerbation or deterioration of a disease and the proceedings were not conducted on that basis, yet the Arbitrator made such a finding.
It is puzzling that, although the Arbitrator found psychological injury both in 2006 and 2009 and that the effects of the injury of 2006 had not entirely resolved, he then used the language of section 4(b)(ii) of the 1987 Act in speaking of the aggravation etc of a disease.
Section 4 of the 1987 Act provides:
“In this Act –
injury –
(a)means personal injury arising out of or in the course of employment;
(b)includes –
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; …”
The majority of the High Court, Toohey, McHugh, Gummow and Kirby JJ, in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310 held that the separate categories of injury referred to in section 4 are not mutually exclusive. The application filed by the worker in the Commission makes no reference to disease, nor was this addressed in submissions before the Arbitrator. The claim was pleaded as “nature and conditions of employment” for two overlapping periods from November 2005 onwards. This phrase is of long usage in the area of workers compensation, being used in contrast to “frank injury”, which is what section 4(a) refers to. Roche DP referred to “nature and conditions of employment” in Willoughby City Council vKevric [2009] NSWWCCPD 140 at [7] as “a meaningless expression that should not be used”. Neilson J has also been critical of its use as in Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656 at 667 and other cases. These admonitions have not been heeded.
Section 354 of the 1998 Act requires the Commission to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. There is no doubt in my mind that, notwithstanding the failure to refer to disease specifically, that was what the parties understood the case was about. RailCorp particularly sought to rely on the worker’s depression or post-traumatic stress disorder in 2000-2001 as being either a cause or the cause of his incapacity in 2009, and relied on the payments of compensation made in 2006 to reduce its liability under section 36 of the 1987 Act. The latter suggests that RailCorp regarded the events of 2009 as being a continuation of the same injury as that in 2006. If there was an aggravation etc of the disease of major depression, as I think there was, it was a quite separate injury. This has consequences so far as the application of sections 9A and 11A and the appropriate payment of weekly compensation. As Hodgson JA said in Murray v Shillingsworth [2006] NSWCA 367; (2006) 4DDCR 313 at [7]:
“…I think there may be cases where the question of whether the employment was a substantial contributing factor is affected by whether one considers the work occurrence as an injury simpliciter or as an aggravation of a pre-existing condition. In some case at least, when an injury simpliciter can be considered as having been contributed to by a pre-existing condition, the employment contribution to the aggravation may not be diluted by the pre-existing condition (although the compensation would then be strictly limited to the effects of the aggravation).”
The amount of compensation payable was agreed after giving RailCorp credit for what it had already paid. There is no reason to adjust such payment since no adjustment is sought. RailCorp relied on the particular event in January 2009 in the application of section11A which is consistent with that event, divorced from other events or circumstances, as being regarded as an injury simpliciter or an aggravation of a disease. Despite the inconsistency in the Arbitrator’s reasons, on whatever view one takes, whether a simple injury or aggravation of a disease, the worker is entitled to the compensation which the Arbitrator awarded.

DECISION

The decision of the Arbitrator dated 2 March 2010 is confirmed.

COSTS

The appellant, RailCorp, is to pay the costs of the respondent worker of the appeal.

Anthony Candy
Acting Deputy President
4 August 2010

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE