Secretary, Department of Communities and Justice v Galea - [2021] NSWWCCPD 1

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Secretary, Department of Communities and Justice v Galea [2021] NSWWCCPD 1
APPELLANT:	Secretary, Department of Communities and Justice
RESPONDENT:	Marlene Galea
INSURER:	QBE TMF
FILE NUMBER:	A1-1907/20
ARBITRATOR:	Mr C Burge
DATE OF ARBITRATOR’S DECISION:	27 July 2020
DATE OF APPEAL DECISION:	13 January 2021
SUBJECT MATTER OF DECISION:	Extension of time to appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011; injury arising out of employment – application of Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75; section 9A(2) of the Workers Compensation Act 1987; section 9B of the Workers Compensation Act 1987 – application of Renew God’s Program Pty Ltd v Kim [2019] NSWWCCPD 45
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms L Goodman, counsel
Bartier Perry

Respondent:
Mr D Adhikary, counsel
Santone Lawyers
ORDERS MADE ON APPEAL:	1. The employer’s application to extend time for the bringing of this appeal pursuant to rule 16.2(5) of the Workers Compensation Commission Rules 2011, is refused.

INTRODUCTION AND BACKGROUND

Marlene Galea (the worker) was employed by the Department of Communities and Justice (the employer) from 2004 as a disability care worker. She worked part-time, in the vicinity of 120 hours per month.[1]
[1] Worker’s statement 18/9/15, [4]–[6], Application to Resolve a Dispute (ARD), p 22.
There was an incident in early 2013, when the worker had made a pudding and put it in the staff refrigerator. A co-worker took a sample of saliva from the mouth of a disabled boy and spread it over the pudding, unbeknown to the worker, who subsequently ate the pudding. A few months later, on 21 June 2013, another co-worker asked the worker if she had hepatitis yet and told her what had happened. The worker was upset, reported the matter and saw her general practitioner to have a blood test performed. She said she was very stressed and worried.[2]
[2] Worker’s statement 18/9/15, [9]–[15], ARD, p 23.
There was a further incident on 23 June 2013. The worker was driving a work bus, she was the only staff member present, and she saw that a teenaged boy in the back, who was about six feet tall, had removed his seatbelt. She stopped and went to help the boy, who assaulted her. The worker could not use her remote control to open the back door of the bus and was trapped with the boy. She said she was “trapped and very afraid”, and the assault continued for “about an hour”. She said she used tape to make the word “Help” on the bus window and eventually another departmental vehicle pulled over and freed her.[3]
[3] Worker’s statement 18/9/15, [16]–[26], ARD, pp 23–24.
There was antipathy between the worker and the co-worker who had told her about the pudding. He accused the worker of “dobbing” and said he did not wish to work with her. The worker said she felt “threatened and abused” by him and did not wish to come in contact with him under any circumstances. The worker developed psychological symptoms and the employer accepted liability to pay compensation on a voluntary basis. She resumed on a return to work program in about November 2013. She suffered a significant stroke in June 2014 and has not worked since.[4]
[4] Worker’s statement 18/9/15, [27]–[65], ARD, pp 24–27.
On about 24 December 2015 (23 December 2015 is also mentioned as the date) the worker was at a shopping centre when she saw Roberta, a person she had worked with, who had been “mean” to her and had been involved in the incident involving the pudding. The worker said she was “very shocked and surprised”, became distressed, found breathing difficult and her chest tightened.[5] She experienced chest pain. She attended Gosford Hospital on 24 December 2015 and was diagnosed with Takotsubo Cardiomyopathy (TCM).[6]
[5] Worker’s statement 31/10/19, [12]–[15], ARD, p 30.
[6] Gosford Hospital Discharge Referral Notes, Reply, pp 73–77.
The worker’s claim is for lump sum compensation. She alleges psychological injury with a deemed date of 26 July 2013. She alleges injury to the cardiovascular system in the incident on about 24 December 2015. In the alternative she alleges that the TCM is a consequential condition that results from the psychological injury.
The employer accepts the occurrence of a psychological injury on or about 23 June 2013. It denies that the stroke in 2015 was an ‘injury’ or that it was a consequential condition that resulted from the psychological injury. (This may have been raised previously but is not alleged in the current proceedings). The employer denies that the worker has sustained at least 15 per cent permanent impairment in respect of the psychological injury.[7] The employer denies that the heart condition resulted from the psychological injury. It relies on s 9B of the Workers Compensation Act 1987 (the 1987 Act).[8] The employer denies that the worker suffered “injury” involving TCM, it denies that employment was the main contributing factor to the condition (referring to s 4(b) of the 1987 Act). It denies that the incident on about 24 December 2015 was in the course of the worker’s employment or “connected with your employment in any way”. It denies that ss 9A and 9B of the 1987 Act are satisfied.[9]
[7] Section 74 notice 9/9/16, Reply pp 1–6.
[8] Section 78 notice 8/5/19, Reply pp 7–12, s 287A review notice 22/5/19, Reply, pp 13–18.
[9] Section 78 notice 26/2/20, Reply, pp 19–25.
The matter was listed for an arbitration hearing on 10 June 2020. The worker was represented by Mr Adhikary and the employer by Ms Goodman. Counsel for the parties addressed and the Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 27 July 2020. The Arbitrator found that the alleged injuries (both psychological and to the cardiovascular system) were made out. The finding was of two separate injuries within the meaning of s 4 of the 1987 Act, rather than a finding that the cardiac complaints represented a consequential condition. Thus s 65A(4) of the 1987 Act did not apply. The Arbitrator made an award on the basis of 20 per cent permanent impairment in respect of the cardiac injury (the identical assessment made by each of the medicolegal cardiologists, one on each side of the record, was 20 per cent). He referred permanent impairment in respect of the psychological injury to an Approved Medical Specialist (AMS) for assessment.

THE ARBITRATOR’S REASONS

The Arbitrator said the parties agreed that TCM was a ‘heart attack injury’ within the meaning of s 9B of the 1987 Act. He said the parties agreed that the following matters (all of which related to the condition of TCM) were the issues in dispute:
(a)    whether it was a work-related injury (s 4 of the 1987 Act);
(b)    whether employment was a substantial contributing factor (s 9A of the 1987 Act);
(c) whether s 9B of the 1987 Act was satisfied, and
(d)    whether, if TCM was not an injury within the meaning of s 4, it was a consequential condition resulting from the accepted psychological injury.
The Arbitrator said it was agreed that, if there was a finding in the worker’s favour on the issue of the TCM injury, her level of permanent impairment in respect of that injury was 20 per cent, the figure assessed by each of the Independent Medical Examiners.[10] The Arbitrator noted that counsel put on written submissions dealing with the issue of whether TCM was a consequential condition.[11]
[10] Reasons, [2]–[5].
[11] Reasons, [8].
The Arbitrator referred to Castro v State Transit Authority (NSW)[12] as authority for the proposition that ‘injury’ within the meaning of s 4 of the 1987 Act involves a “sudden or identifiable pathological change”. He referred to Zickar v MGH Plastic Industries Pty Ltd,[13] saying that the presence of a ‘disease’ does not preclude reliance upon an event as a personal injury, and that ‘personal injury’ and ‘disease’ are not mutually exclusive.[14]
[12] [2000] NSWCC 12; 19 NSWCCR 496.
[13] [1996] HCA 31; 187 CLR 310; 140 ALR 156; 71 ALJR 32.
[14] Reasons, [11]–[13].
The Arbitrator said the medical evidence established that the TCM was “brought on by emotional/psychological stressors … There is no medical evidence which contradicts that opinion.”[15] He said the worker had ceased employment some time before the incident in December 2015. He said the employer’s counsel conceded “it is nevertheless still possible for the injury to arise out of the [worker’s] employment, even after that employment had ceased” (emphasis in original). The Arbitrator accepted that, to be an injury arising out of the employment, there must be a causal connection between the employment and the injury. He quoted from the passage in Kooragang Cement Pty Ltd v Bates[16] in which Kirby P spoke of the requirement for a “commonsense evaluation of the causal chain”.[17]
[15] Reasons, [15].
[16] (1994) 35 NSWLR 452 (Kooragang).
[17] Reasons, [16]–[17].
The Arbitrator referred to the events of 21 and 23 June 2013 and to the subsequent antagonism between the worker and her co-worker who had made the remark about hepatitis (see [2] to [4] above). The Arbitrator said the worker stated she felt threatened by her co-workers and told the employer that she did not wish to see any of the people involved in the hepatitis incident. The Arbitrator referred to the worker’s reaction, on about 24 December 2015, when she saw Roberta in a shopping centre (see [5] above). He referred to the reports of Dr Robinson, the treating psychiatrist. Dr Robinson recorded the worker became “upset, pale and shaking” when discussing her former co-workers and her reaction to seeing Roberta in December 2015.[18]
[18] Reasons, [19]–[26].
The Arbitrator quoted from the opinion of Dr Herman, the cardiologist qualified by the employer:
“In the setting of a significant psychological injury, the chance meeting with a work colleague provoked significant psychological stress.
Emotional stress is [a] well known trigger for the provocation of a Takotsubo’s (stress induced) cardiomyopathy in middle-aged ladies who are predisposed”.
And:
“In my opinion, her pre-existing psychological condition (post-traumatic stress disorder in relation to bullying and harassment at work) was a key factor in provoking anxiety which subsequently led to her Takotsubo’s cardiomyopathy.”
The Arbitrator also quoted from the report of Dr Haber, qualified in the worker’s case, who was supportive of this causal connection.[19]
[19] Reasons, [27]–[29].
The Arbitrator said he accepted the worker’s submission that “the TCM was a frank injury, in that there was a pathological change brought about when the [worker] saw her former colleague”. He said that, on the lay and medical evidence, the worker “has clearly established on the balance of probabilities that her cardiac injury arose out of her employment with the respondent”. The Arbitrator described the worker’s development of TCM as constituting “a sudden identifiable pathological change to the body brought about by the work-related external event of seeing her former colleague”. He said “it is a personal injury within the meaning of s 4 of the 1987 Act”.[20]
[20] Reasons, [31]–[32].
The Arbitrator dealt with whether s 9A of the 1987 Act was satisfied. He said this was “a question of fact and is a matter of impression and degree”, citing Dayton v Coles Supermarkets Pty Ltd.[21] He said that employment must be “a substantial contributing factor”, not “the substantial contributing factor” (emphasis in original). He said “[t]here may be more than one substantial contributing factor to a single injury”, citing Mercer v ANZ Banking Group.[22] He referred to a submission on the employer’s part that there were “no work-related factors” in the encounter with a former colleague at the shopping centre. The Arbitrator rejected this, saying that were it not for the worker’s employment she would not have suffered the TCM injury. This was the opinion of every doctor in the proceedings. The Arbitrator accepted that s 9A required a causal relationship between the employment and the injury, making reference to Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited.[23] The worker’s statement and the medical evidence established “such a causal connection”. The Arbitrator said that s 9A was satisfied.[24]
[21] [2001] NSWCA 153; 22 NSWCCR 46 (Dayton), [29].
[22] [2000] NSWCA 138.
[23] [2009] NSWCA 324; 7 DDCR 75 (Badawi).
[24] Reasons, [33]–[39].
The Arbitrator then dealt with s 9B of the 1987 Act. He said the condition of TCM fell within the definition of a ‘heart attack injury’. The employment caused psychological issues which in turn caused the condition of TCM. Dr Herman said that unexpectedly meeting a former work colleague would probably not have provoked emotion, which triggered cardiomyopathy, if not for the prior work-related psychological injury. This is supported also by Dr Haber’s opinion. The Arbitrator said he accepted a submission by the worker that, in looking at the worker’s employment, it was insufficient to simply examine the duties. It was necessary also to examine the interactions with patients and co-workers which the employment entailed.[25]
[25] Reasons, [40]–[43].
The Arbitrator said he accepted that the worker’s employment gave rise to a significantly greater risk of a heart attack injury. It put the worker in a position where she was assaulted and where she was exposed to the “appalling conduct regarding the attempted hepatitis infection”. The Arbitrator continued:
“Had those aspects of her employment not happened, the [worker] in turn would not have sought to dissociate herself from her co-workers and the TCM would not have occurred. All of the relevant medical evidence supports a finding that were it not for the prior psychological stressors brought about at work, the [worker] would not have suffered from TCM. Such evidence is, in my opinion, strongly suggestive of a significantly increased risk of injury as a result of the employment than had the [worker] not worked for the [employer].”[26]
[26] Reasons, [44].
The Arbitrator referred to earlier decisions of mine in De Silva v Secretary, Department of Finance, Services and Innovation[27] and Renew God’s Program Pty Ltd v Kim.[28] He said it is settled law that s 9B involves an evaluative task, comparing the risks to which the employment concerned gives rise, with the risks if the worker was not employed in employment of that nature. It is an assessment of comparative risk, not a test of true causation.[29]
[27] [2015] NSWWCC 279 (De Silva).
[28] [2019] NSWWCCPD 45 (Kim).
[29] Reasons, [45].
The Arbitrator said the employment exposed the worker to psychological stressors which gave rise to the TCM injury. If she was not exposed to that heightened risk there would have been significantly less risk of the heart attack injury occurring. The Arbitrator said that if the worker had not been exposed to the factors that caused her psychological injury, she would not have suffered her cardiac injury. He concluded the requirements of s 9B were met.[30]
[30] Reasons, [46]–[48].
The Arbitrator said the correct date of the cardiac injury was 24 December 2015, when the worker had an encounter with her former work colleague. Consistent with the assessments by both parties’ qualified cardiologists and the parties’ agreement, the Arbitrator found the worker suffered 20 per cent whole person impairment as a result of the cardiac injury.[31]
[31] Reasons, [49]–[50].
The Arbitrator said that the accepted psychological injury occurred on 26 July 2013, and he had found the TCM was a separate frank injury on 24 December 2015. There were two discrete injuries. Section 65A(4) did not apply. The worker was entitled to claim lump sum compensation in respect of both the psychological injury and the TCM injury.[32]
[32] Reasons, [51]–[57].

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[33] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[34] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[35]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[36]
[33] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[34] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[35] [1996] HCA 140; 140 ALR 227.
[36] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[37] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[38]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[39]
[37] [2017] NSWWCCPD 5, [67].
[38] [2001] FCA 1833, [28].
[39] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[40] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[41]
[40] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[41] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[42] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[43]
[42] [2020] NSWCA 54 (Hill).
[43] Hill, [20].

LEGISLATION

Section 4 of the 1987 Act provides:
“4      Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9 of the 1987 Act provides:
“9     Liability of employers for injuries received by workers—general (cf former s 7(1)(a))
(1)     A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2)     Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”
Section 9A of the 1987 Act provides:
“9A   No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 9B of the 1987 Act relevantly provides:
“9B   No compensation for heart attack or stroke unless nature of employment results in significantly greater risk
(1)     No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.
(2)     In this section—
heart attack injury means an injury to the heart, or any blood vessel supplying or associated with the heart, that consists of, is caused by, results in or is associated with—
(a) any heart attack, or
(b) any myocardial infarction, or
(c) any myocardial ischaemia, or
(d) any angina, whether unstable or otherwise, or
(e) any fibrillation, whether atrial or ventricular or otherwise, or
(f) any arrhythmia of the heart, or
(g) any tachycardia, whether ventricular, supra ventricular or otherwise, or
(h) any harm or damage to such a blood vessel or to any associated plaque, or
(i) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(j) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(k) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(l) any haemorrhage from such a blood vessel, or
(m) any aortic dissection, or
(n) any consequential physical harm or damage, including harm or damage to the brain, or
(o) any consequential mental harm or damage.”
Section 65A(4) of the 1987 Act provides:
“(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply—
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note—
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.”

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both 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.

THRESHOLD MATTERS REGARDING QUANTUM

There is no dispute between the parties that the threshold requirements as to quantum pursuant to ss 352(3) of the 1998 Act have been met.

THRESHOLD MATTERS REGARDING TIME

The appeal was not made within the period of 28 days stipulated in s 352(4) of the 1998 Act. The employer requires an extension of time if the appeal is to proceed.
Subclauses (5) and (6) of r 16.2 of the Workers Compensation Commission Rules 2011 (the Rules) provide:
“(5) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(6) A party who seeks an extension of time as referred to in subrule (5) must—
(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) lodge and serve with the application to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”

THE APPLICATION TO EXTEND TIME

The employer’s submissions on the extension of time

The employer submits that it originally lodged its appeal on 24 August 2020, within time. The appeal was rejected by the Registrar on 25 August 2020 due to procedural requirements that were not met. It was relodged on 26 August 2020 with those matters having been rectified, but by then it was out of time. The employer submits that it provided instructions to its solicitors to appeal on Friday 21 August 2020. Its solicitors and counsel worked on the appeal over the weekend on the basis it would be lodged on 24 August 2020. It was believed at that stage that the appeal would be compliant. The appeal was served on 24 August 2020. It submits the period of delay is minimal and would not have caused prejudice. It submits the appeal has reasonable prospects of success and failure to grant the extension would cause demonstrable and substantial injustice. The employer submits it would have been open to the Registrar to accept the deficient appeal when it was initially lodged and to issue a direction to rectify the relatively minor procedural deficiencies. It refers to the approach taken in a similar application in Duck v EB and DE Bunt Pty Ltd.[44]
[44] [2020] NSWWCCPD 11 (Duck).

The worker’s submissions on the extension of time

The worker refers to the decision in Gallo v Dawson[45] dealing with exercise of the discretion to extend time to appeal. She refers to the need for a Presidential member to consider the presence of ‘exceptional circumstances’ when dealing with such an application, although the presence of ‘exceptional circumstances’ is not a precondition to the exercise of the discretion.[46] The worker submits delay is not adequately explained. The period from 28 July 2020 (the decision was issued on 27 July 2020) to 3 August 2020 is not explained. The explanation does not indicate when advice was sought or received from counsel following issue of the arbitral decision. The worker submits that the employer does not state whether ‘exceptional circumstances’ exist. It submits the appeal does not have reasonable prospects of success.[47]
[45] [1990] HCA 30; 93 ALR 479; 64 ALJR 458 (Gallo).
[46] See Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce), [8].
[47] Worker’s submissions, [9].
The worker submits that Duck, on which the employer relies, can be distinguished. In Duck it was found that ‘exceptional circumstances’ existed. Delay in the lodgement of an appeal due to procedural non-compliance does not constitute ‘exceptional circumstances’. Additionally, it was found in Duck that the appeal had prospects of success. It is submitted the current appeal does not have prospects of success.[48]
[48] Worker’s submissions, [10]–[11].

Consideration

The judgment of McHugh J in Gallo has been regularly applied in the Commission in dealing with extension applications. I accept that this is appropriate. Those principles were summarised by Roche DP in Allen v Roads and Maritime Services as involving the need to have regard to the following:
“(a)    the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)      upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”[49]
[49] [2015] NSWWCCPD 39, [31].
I additionally note what was said in the Court of Appeal in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a)     the extent of the delay and the reasons therefor;
(b)     the prejudice to the applicant if the application were to be refused;
(c)     the prejudice to the defendant from the delay if the application were to be granted;
(d)     the prospects of success on the proposed appeal.”[50]
[50] [2014] NSWCA 34 (per Basten JA, Beazley P and Leeming JA agreeing), [9].

Exceptional circumstances

In Bryce Allsop P (as his Honour then was) (Beazley and Giles JJA agreeing), dealing with the extension of time provisions in the Rules, said:
“In my view, the phrase ‘in exceptional circumstances’ finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction.”[51]
[51] Bryce, [8].
In Yacoub v Pilkington (Australia) Ltd Campbell JA dealt with the phrase ‘exceptional circumstances’ in the context of the Uniform Civil Procedure Rules 2005, saying:
“(a)    Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b)     Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912–913).
(c)     Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d)     In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912–913).
(e)     Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”[52]
[52] [2007] NSWCA 290, [66].
Where the phrase appears in the extension of time provisions of the Rules, it is appropriate to consider the phrase in the context of the ‘System objectives’ and ‘Procedure before the Commission’, described in ss 3 and 354 respectively, of the 1998 Act.
The current appeal is out of time because it was rejected, when initially lodged, due to non-compliance with the relevant procedural requirements. It has been regularly held that where an appeal is out of time, due to inadvertence or legal error, this does not constitute ‘exceptional circumstances’.[53] Such circumstances are not “out of the ordinary course or unusual, or special, or uncommon”. The employer’s submissions do not specifically address the presence of ‘exceptional circumstances’. There is nothing out of the ordinary course, unusual, special or uncommon about an appeal becoming out of time in such circumstances. ‘Exceptional circumstances’ are not made out. The absence of ‘exceptional circumstances’ does not constitute the absence of a precondition to an extension. It is a matter I am required to consider in dealing with whether my discretion should be exercised in the circumstances. The absence of ‘exceptional circumstances’ is a factor that militates against the extension of time.
[53] Department of Education & Training v Mekhail [2006] NSWWCCPD 1, [19], Department of Corrective Services v Buxton [2007] NSWWCCPD 55, [26], Lawrence-Plant v J & S Plant Pty Ltd t/as Bluey’s Hire (now deregistered) [2009] NSWWCCPD 64, [27], Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1, [26].

Delay

The extent of the delay is short. The appeal would have been lodged in time if not for the procedural difficulties, it was successfully lodged shortly out of time. The worker is critical of the absence of an explanation of delay between 28 July 2020 (the date the decision was forwarded to the parties) and 3 August 2020.[54] The employer’s explanation states that its solicitor (I infer the solicitor with conduct) was on leave from 28 July 2020 to 3 August 2020 (a Monday). It states the solicitor then referred the decision to counsel for advice, and on 13 August 2020 sought instructions from the employer regarding whether it wished to appeal. It states those instructions were not forthcoming until Friday 21 August 2020, when the employer indicated it wished to appeal.[55] The explanation could have been more precise regarding when specific events took place. The period from 28 July 2020 to 3 August 2020 (which included a weekend) is adequately explained by the solicitor being away on leave.
[54] Worker’s submissions, [9].
[55] Employer’s submissions, [8].
The worker’s submissions are critical of the employer for not explaining precisely when counsel was briefed or counsel’s advice was received. It could be reasonably inferred that counsel was briefed on or shortly after 3 August 2020 and furnished an advice on or shortly prior to 13 August 2020.[56] I appreciate this period is not precise. At its longest, it is consistent with a period not exceeding ten days between when a brief was delivered to counsel and when advice was received by the employer’s solicitors and furnished to their client, with a request for instructions. Such a period is not excessive and explains the expiration of that time.
[56] Employer’s submissions, [8].
The next period is from Thursday 13 August 2020 to Friday 21 August 2020. The explanation states that on the morning of 21 August 2020 the employer (or its insurer) gave instructions to pursue a Presidential appeal, the last day for the lodgment of which was the following Monday, 24 August 2020.[57] It is unfortunate that these instructions were furnished to the solicitors at such a late stage, leaving very little time for the preparation, collation and lodgment of the appeal and accompanying documentation. There is nothing from the employer or its insurer to explain why it took a little in excess of a week for advice from the solicitor and counsel to be considered and a decision made on the point.
[57] Employer’s submissions, [8].
The explanation states that thereafter the employer’s counsel and solicitor worked jointly preparing the appeal and accompanying documentation so it could be lodged on 24 August 2020. This period is adequately explained.
When the explanation is considered as a whole, I regard it as adequate, notwithstanding the difficulty referred to above regarding the period from 13 to 21 August 2020.

Prejudice

It is not suggested that the worker is prejudiced by the delay. If the application is refused the employer will lose any right it had to appeal.

History of the proceedings/Conduct of the parties/Nature of the litigation

There is nothing in the history of the proceedings that is relevant to the exercise of the discretion. The conduct of the employer or its insurer, in not providing timely instructions regarding whether it wished to appeal, is a factor, although a relatively minor one, that would militate against exercise of the discretion in the employer’s favour. The nature of the litigation does not bear upon the application to extend time.

The prospects of success

The worker submits the appeal does not have any prospects of success and this is a further reason why an extension of time should not be granted. This requires a consideration of the grounds of appeal and their prospects.

CONCLUSION ON THE EXTENSION OF TIME

For reasons that follow, I have formed the view, after a full consideration of the grounds, that the appeal, if time were extended, would fail. It follows that the appeal does not have reasonable prospects of success. I note that ‘exceptional circumstances’ are not established. It follows that there is no prejudice to the employer if the application to extend time is refused. The interests of justice do not favour granting the extension which is sought.

The application of the employer, to extend time for the making of the appeal pursuant to r 16.2(5) of the Rules, is refused.

THE GROUNDS OF APPEAL

The employer raises the following grounds of appeal:
(a) The Arbitrator erred in law in finding that the TCM injury arose out of the worker’s employment in that he:
(i) applied the wrong legal test, and
(ii) failed to take account of the fact that that the worker was no longer employed by the employer. (Ground No. 1)
(b) The Arbitrator erred in law in finding that the worker’s employment was a substantial contributing factor to the TCM injury in accordance with s 9A of the 1987 Act. (Ground No. 2)
(c) The Arbitrator erred in law and applied the wrong legal test in finding that the worker’s employment gave rise to a significantly greater risk of a ‘heart attack injury’ in accordance with s 9B of the 1987 Act. (Ground No. 3)

GROUND NO. 1

Employer’s submissions – first limb of Ground No. 1

The employer deals initially with the first limb of Ground No. 1. It refers to the reasons at [17] where the Arbitrator quoted the following passage from Kooragang:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”[58]
[58] Kooragang, 463.
The employer noted the accepted psychological injury resulted from becoming aware, on 21 June 2013, of certain actions of her co-workers, and on 23 June 2013 being assaulted in a minibus. She then saw a former colleague on about 24 December 2015 in a shopping centre and got extremely upset, being admitted to Gosford/Wyong Hospital on the following morning. She was there diagnosed with TCM, a ‘heart attack injury’.[59] It submits that Kooragang sets out the appropriate causation test for determining whether death or incapacity results from an injury that is already “defined and created by s 4” of the 1987 Act. Kooragang does not represent the appropriate test for determining whether an injury arises out of the employment. It was the Arbitrator’s view that, on the medical evidence, the worker would not have suffered the episode of TCM if she had not been subjected to the factual circumstances that caused her psychological injury.[60]
[59] Employer’s submissions, [31]–[34].
[60] Employer’s submissions, [40]–[42].
The employer submits that injury arising out of the employment “requires a causative element which is not satisfied by the mere fact of being employed”. It is necessary that employment in the particular job “must have caused, or to some material extent contributed to the injury”.[61] It is insufficient that “but for” the employment the worker would not have been at the scene of the accident. The employer cites The Star Pty Ltd v Mitchison[62] and Stewart v Metropolitan Water Sewerage and Drainage Board.[63] The employer submits that the Arbitrator’s reasoning was that the TCM injury arose out of employment because “but for her employment and the psychological injury suffered by her, she would not have suffered the TCM injury”. It submits this was not the correct legal test.[64]
[61] Citing Badawi.
[62] [2017] NSWCA 149 (Mitchison).
[63] (1932) 48 CLR 216 (Stewart).
[64] Employer’s submissions, [43]–[46].

Worker’s submissions – first limb of Ground No. 1

The worker refers to Nunan v Cockatoo Docks and Engineering Co Pty Ltd, in which Jordan CJ referred to the test to demonstrate injury arising out of employment, saying it involved injury where “the fact of his [the worker’s] being employed in the particular job caused, or to some material extent contributed to, the injury”.[65] The worker quotes from the judgment of Glass JA in Tarry v Warringah Shire Council in which his Honour said:
“… the injury may arise out of the employment, even though at the time it is sustained the deceased or the [worker] is no longer in the course of his employment … the proper test for determining whether the injury arose out of employment has been stated by Jordan CJ in [Nunan], when he describes the employment as causing or contributing to the injury; by Fullagar J … when he states the need for a causal connection between the employment and the injury and by Starke J in South Maitland Railways Pty Ltd v James (1943) 67 CLR 496 at 502, when he says ‘the words ‘out of’ require that the injury had its origin in the employment.’”[66]
[65] (1941) 41 SR (NSW) 119 (Nunan), 124.
[66] [1974] WCR 1.
The worker also refers to the passage from Zinc Corporation Ltd v Scarce[67] quoted at [73] below.
[67] (1995) 12 NSWCCR 566 (Scarce).
Reference is also made to Ryan v Regional Imaging Pty Ltd in which Keating P, applying Nunan, said:
“A worker will have established that an injury arose out of the employment if it appears that ‘the fact of his [or her] being employed in the particular job caused, or to some material extent contributed to, the injury ...’.”[68]
[68] [2017] NSWWCCPD 48, [78].
The worker submits the employer’s submissions on the topic are misconceived.[69] The worker submits the passage from Kooragang relied on by the Arbitrator is not inconsistent with the above authorities. The employer accepted the psychological injury was related to employment. The reasons at [15] to [25] set out the factors that supported the causal connection. The reasons at [26] to [29] discussed the medical evidence.[70] The employer conceded it was possible for an injury to arise out of employment even after the employment had ceased. The Arbitrator found injury on the basis that the worker’s employment caused, or to some material extent contributed, to the TCM injury.[71]
[69] Worker’s submissions, [21]–[28].
[70] Worker’s submissions, [29]–[35].
[71] Worker’s submissions, [38]–[40].
The worker submits it was not the case made by her, or the Arbitrator’s finding, that causation was satisfied simply on the basis that she once worked for the employer and saw an ex-colleague at a shopping centre. The worker did not allege that, but for her employment, she would not have been present at the shopping centre.[72]
[72] Worker’s submissions, [43]–[46].

Employer’s submissions – second limb of Ground No. 1

The employer submits that the current matter can be distinguished from Badawi, as in Badawi the worker was in the course of her employment when injured. In the current matter the worker had not been employed by the employer since June 2014. It submits that “[t]herefore it cannot be said that anything in the [worker’s] employment had caused or to some material extent contributed to the TCM injury”. Nothing in the worker’s employment caused her to attend the shopping centre in December 2015, it was purely coincidental that “someone she thought she knew” was there. Nothing about her work took her to the shopping centre. She was not certain the person she saw was a former work colleague.[73] The employer refers to the test stated in Mitchison as “what (if anything) the [worker] was in fact doing in his or her employment that caused or contributed to the injury”. The employer submits that, in Mitchison, the worker failed as “there was nothing [the worker] did as part of his employment that caused the injury”. The employer submits that, similarly, there was nothing the worker in the current case did “in her employment that caused her to be at the shopping centre on the day and time of her injury.”[74]
[73] Employer’s submissions, [47]–[52].
[74] Employer’s submissions, [55]–[56].

Worker’s submissions – second limb of Ground No. 1

The worker refers to the employer’s argument that the Arbitrator failed to take account of the fact the worker was no longer in the employer’s employ at the time of the TCM injury. The worker refers to Smith v Australian Woollen Mills Ltd, in which the majority said:
“the precise question is not whether the fall arose out of the employment, but rather, whether the injury sustained in falling arose out of the employment.”[75]
[75] [1933] HCA 60; 50 CLR 504 (Smith), 511.
The employer submits that nothing in the worker’s employment caused her to attend at the shopping centre on about 24 December 2015, her presence there was coincidental. The worker submits this involves looking at the shopping centre attendance in isolation. It was not the worker’s case that she attended the shopping centre because of her employment. The employer’s submissions suggest it was the mere chance meeting with her previous work colleague that caused the injury and nothing else.[76] The worker submits an injury could arise out of employment even if a worker was not in the course of his or her employment. The essential question was whether the employment “caused, or to some material extent, contributed, to the injury”, applying what Glass JA said in Tarry. The worker submits the employer has not sought to cavil with the Arbitrator’s factual findings that supported his conclusion.[77]
[76] Worker’s submissions, [52]–[55].
[77] Worker’s submissions, [59]–[61].
The worker refers to the employer’s reliance on Mitchison. She submits there are substantial factual differences between the current case and Mitchison. Mitchison was an ‘interval’ case. The TCM injury was not caused simply because the worker attended a shopping centre and saw her ex-colleague. It was caused by a psychological reaction which had its genesis in the worker’s employment with the employer.[78]
[78] Worker’s submissions, [62]–[68].

Consideration

The Court of Appeal dealt with the test, to establish the occurrence of injury ‘arising out of’ employment, in Badawi, where it was said:
“73. The meaning of ‘arising out of ... employment’ is settled. In Nunan v Cockatoo Island Docks & Engineering Co Ltd [1941] NSWStRp 23; (1941) 41 SR (NSW) 119 in what is sometimes still referred to as the authoritative decision on the phrase the Court (Jordan CJ and Roper J, Nicholas CJ in Eq agreeing) adopted a common sense approach to the application of the phrase, noting that it involved a causative element. In doing so, their Honours, at 123, endorsed the comments of Lord Wright in Dover Navigation Co v Craig [1940] AC 190 at 199 that the Act was a remedial Act intended to give rights to workers that were more extensive than common law rights and which used non-technical language in doing so. As Lord Wright said:
‘Nothing could be simpler than the words ‘arising out of and in the course of employment.’ It is clear that there are two conditions to be fulfilled. What arises ‘in the course’ of the employment is to be distinguished from what arises ‘out of the employment’. The former words relate to time conditioned by reference to the man’s service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.’
74.    Their Honours also endorsed the comments of Lord Maugham at 193 in the same case in considering whether the death in that case arose out of applicant’s employment:
‘The authorities show, if authorities are needed on that point, that the words connote a certain degree of causal relation between the accident and the employment. It is impossible to define in positive terms the degree of that causal connection ...’
75.    Their Honours concluded, at 124, that a worker would have established that an injury arose out of employment:
‘... if it appears ... that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury ...’
76.    In Nunan, the applicant employee was assaulted by a fellow employee in circumstances where he had ignored a request by the fellow employee to clean some paint brushes in another area after the applicant had inadvertently splashed paint on to the enamel work that the fellow employee was undertaking. There was no dispute that the injury thus sustained was sustained in the course of the employment. Jordan CJ and Roper J held that the applicant’s injury arose out of the employment. In doing so, they noted that the question whether a particular injury arose out of the employment was a matter to be inferred from the facts as a matter of common sense.”[79]
[79] Badawi, (per Allsop P, Beazley and McColl JJA), [73]–[76].
In Mitchison, the Court of Appeal said:
“It would be inconsistent with High Court authority, including Stewart, to conclude that it would be sufficient to show that an injury was one ‘arising out of’ employment merely to show that but for the employment, the worker would not have been at the scene of the accident.”[80]
[80] Mitchison, [82].
In Scarce, Clarke JA said:
“It is now well established at common law that the test of causation is a common sense one. Any controversy on the question has been laid to rest by the decision of the High Court in March v E and M H Stramare Pty Ltd (1991) 171 CLR 506 [March]. What needs to be established is that the event which is sought to be linked with injury 'was so connected with the loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it’. (see Halverson Boats Pty Ltd v Robinson, [1993] 31 NSWLR at 7). The question is, of course, a question of fact which ‘must be determined by applying common sense to the facts of each particular case’ (see, March at 15). In my opinion there is no reason to adopt a different approach in relation to the test of causation posed by the words ‘arising out of’. The question of fact is whether there is such a connection between the worker’s personal injury and his employment that, as a matter of ordinary common sense and experience, the injury should be regarded as having arisen out of that employment. In deciding that question my preferred view is that the test laid down by Jordan CJ in Nunan v Cockatoo Docks and Engineering Co Ltd 41 SR (NSW) 119 at 124 - that the fact of his being employed in the particular job caused, or to some material extent contributed to the injury - should be applied. At the very least the test requires that the employment was a contributing factor to the injury”.[81]
[81] Scarce, 570G–571B.
The employer submits that Kooragang sets out the appropriate causation test for determining whether death or incapacity results from an injury that is already “defined and created by s 4” of the 1987 Act. Kooragang does not represent the appropriate test for determining whether an injury arises out of the employment. It submits the Arbitrator’s reliance on Kooragang involved him applying an incorrect test to the issue of whether the TCM injury was one arising out of the employment.
It is necessary that the Arbitrator’s reasons be read as a whole.[82] The Arbitrator referred to a number of authorities dealing with the nature of ‘injury’ in the legislation. He referred to uncontradicted medical evidence that TCM was “a cardiac condition, which is brought on by emotional/psychological stressors”. He referred to a concession by the employer that it is possible for injury to arise out of the employment after the employment had ceased. He accepted that there must be a causal connection between the employment and the injury at issue.[83] After quoting from Kooragang, the Arbitrator said that the “factual background to the [worker’s] accepted psychological injury is relevant in examining whether there is any causal link between that accepted injury and the TCM”.[84] The Arbitrator then set out that background at some length, including the incident on about 24 December 2015, when the worker saw Roberta at a shopping centre.[85] The Arbitrator discussed the opinion evidence from the medicolegal reports of the cardiologists.[86] He concluded:
“I accept Mr Adhikary’s submission that the TCM was a frank injury, in that there was a pathological change brought about when the [worker] saw her former colleague. Given the state of the medical and lay evidence, in my view, the [worker] has clearly established on the balance of probabilities that her cardiac injury arose out of her employment with the respondent. This is not, in my view, an aggravation of a psychological disease process. Rather, it is a physical condition which has come about as a result of the [worker] encountering her former colleague. The psychological work injury is a precipitating factor to the TCM (indeed, the medical evidence clearly establishes it is the main contributing factor to it), but the TCM is a separate condition to the accepted injury rather than an aggravation of it.”[87]
[82] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
[83] Reasons, [11]–[16].
[84] Reasons, [18].
[85] Reasons, [19]–[25].
[86] Reasons, [27]–[29].
[87] Reasons, [31].
It is plain, from the above brief summary, that the Arbitrator’s reasoning did not proceed on the simple basis that Kooragang provided an appropriate test for determining whether injury arising out of the employment was established. The reasons do not suggest that the Arbitrator dealt with the passage from Kooragang in this way. Immediately before quoting it, the Arbitrator referred to the passage as being relevant when “assessing issues of causation in the workers compensation context”.[88] I do not accept the employer’s submission that the Arbitrator applied a wrong test to the principles governing the establishment of injury ‘arising out of’ employment, on the basis of his reference to the test in Kooragang as the test on causation.
[88] Reasons, [17].
The employer submits that “‘arising out of the employment’ requires a causative element which is not satisfied by the mere fact of being employed”.[89] The Arbitrator’s acceptance of that requirement is apparent from the passages of the reasons referred to and quoted above. The Arbitrator specifically referred to the need to examine any causal link between the accepted psychological injury and the condition of TCM. The psychological injury was, of course, one that was accepted as resulting from events to which the worker was exposed as part of her employment duties with the employer. The Arbitrator found that the psychological work injury was “the main contributing factor” to the TCM injury. It is inherent in this finding that the work duties which caused the psychological injury were, in the unusual factual circumstances of this case, also causative of the TCM injury.
[89] Employer’s submissions, [43].
The employer argues that the Arbitrator’s finding is analogous to one that “‘but for’ the employment, the worker would not have been at the scene of the accident” (which would not satisfy the relevant test, see [61] above).[90] In rejecting the employer’s submission on causation the Arbitrator made a factual finding:
“In my view, the medical evidence clearly supports a finding that had the [worker] not been subjected to the factors which caused her accepted psychological injury, then she would not have suffered the episode of TCM which has left her with impaired cardiac function.”[91]
[90] Employer’s submissions, [44]–[45].
[91] Reasons, [30].
This is not a finding that the causal connection is nothing more than one that puts a worker at the scene of an accident that then befalls him or her. It is a finding that the pleaded employment duties resulted in the psychological injury (which the employer accepted) and that the common sense causal chain extended to the condition of TCM, which on the medical evidence resulted from the psychological injury.

The passage from Scarce quoted at [73] above refers to the “ordinary common sense and experience” causation test in March. The test quoted by the Arbitrator was the “commonsense” test in Kooragang, which is regularly applied in the Commission. The worker, in her submissions on this appeal, quoted and relied on the above passage from Scarce. The employer did not lodge submissions in reply to suggest there was inconsistency between the two tests, of such a nature that it would affect the appropriateness of the causation test applied by the Arbitrator. There is not, in my view, relevant inconsistency between the two.
The Arbitrator approached the issue of whether the worker suffered injury ‘arising out of’ her employment in a fashion consistent with the authorities quoted above. I do not accept that he applied a wrong legal test.
The employer seeks to distinguish the current matter from Badawi. This does not assist the employer’s position. The passage from Badawi quoted above sets out the relevant test, by reference to settled authority, in a way that is not specific to the factual position in Badawi. The employer submits that nothing in the worker’s employment caused her to attend the shopping centre in December 2015. The worker’s case was never presented on such a basis. It was the worker’s case that the necessary causal element was established, because a chain of causation existed between the worker’s employment duties which caused the accepted psychological injury, and the TCM injury. The Arbitrator found the existence of that causal chain.[92] It is not argued on this appeal that the chain was broken by a novus actus interveniens.
[92] Reasons, [31].
The employer’s submissions refer to the incident in December 2015 as involving “someone she [the worker] thought she knew”.[93] This appears to be a reference to the worker’s statement where she said “I suddenly saw an ex-work colleague who I think was Roberta”.[94] There are a number of medical histories which unequivocally record the worker seeing an ex-work colleague on that occasion.[95] In the Commission matters in a medical history may comprise evidence of the facts on which the Commission may Act.[96] The Arbitrator made a positive finding that the worker saw an “ex-colleague”.[97] It was open to the Arbitrator to make that finding on the evidence (see [13]–[16] above). The availability of the finding is not specifically challenged on this appeal. It is unclear what the employer seeks to draw from the reference to “someone she thought she knew”, it does not assist the employer’s position.
[93] Employer’s submissions, [50].
[94] Worker’s statement 31/10/19, [12], ARD, p 30.
[95] Dr Robinson’s report 4/2/16, ARD, p 46, Dr Robinson’s report 7/11/19, ARD, p 51, Dr Herman’s report 22/1/19, ARD p 52, Dr Haber’s report 22/3/17, ARD, p 60.
[96] Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351, [3]–[4]; JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17, [98], applying Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225.
[97] Reasons, [25], [31].
For the above reasons Ground No. 1 would not succeed.

GROUND NO. 2

Employer’s submissions

The employer submits the finding that s 9A was satisfied was erroneous. It refers to Badawi. It refers to s 9A(2)(b) of the 1987 Act. The employer submits that the section directs attention to the nature of the work performed and the particular tasks of that work, not to what the worker was actually doing at the time of injury. In Badawi the focus was not on the fact that the worker was skiing when she was injured, but rather on the fact that she was going to meet her supervisor at his request to discuss business matters.[98]
[98] Employer’s submissions, [60]–[61].
The employer submits the Arbitrator applied a ‘but for’ test, finding that if not for her employment as a disability support worker, the worker’s encounter with an ex-colleague would not have mattered and the worker’s TCM injury would not have occurred. It submits the Arbitrator’s reasoning was that as the causal chain was established on the medical evidence, s 9A was satisfied. It submits he failed to consider whether there was a causal connection which was “real and of substance”.[99]
[99] Employer’s submissions, [62]–[64].
The employer submits that, as the worker no longer worked for the employer in December 2015, “there can be no aspects of her ‘employment’ which would be relevant”. There was no aspect of the worker’s employment that required her to be at the shopping centre on the day and time of the encounter.[100]
[100] Employer’s submissions, [65].

Worker’s submissions

The worker submits the causal link required by s 9A is a ‘substantial contributing factor’, meaning a link that is “real and of substance” (referring to Badawi at [82]). Causation is a “fact-laden conclusion which the courts have been told must be based on common sense”.[101] The worker submits the plurality acknowledged there would be circumstances where “the factors considered necessary and sufficient to satisfy the ‘arising out of employment’ test would be sufficient to satisfy s 9A”. Section 9A needs to be considered separately to s 4 of the 1987 Act.[102]
[101] Referring to Badawi at [81].
[102] Worker’s submissions, [73]–[75].
The worker refers to the employer’s submission that as the worker no longer worked for the employer in December 2015, there was nothing in the employment that required her to be in the shopping centre. The worker submits s 9A is not determined solely by looking at where a worker was at the time of injury. The term ‘employment’ in s 9A has been repeatedly held to mean the same as where it appears in s 4.[103] The worker submits the phrase ‘employment concerned’ is not restricted to the worker’s actual employment.[104]
[103] Citing Badawi, [91] and Da Ros v Qantas Airways Ltd [2010] NSWCA 89 (Da Ros), [22].
[104] Worker’s submissions, [76]–[81].
The worker submits that, in the current case, the sole cause of her sustaining the TCM injury was the circumstances she was exposed to in the course of her employment duties. The TCM injury arose out of the employment. There were “no other contributing factors, let alone substantially contributing factors”. There were only the circumstances to which she was exposed in her employment with the employer. The employer does not suggest other alternatives. The worker refers to Da Ros at [24].[105]
[105] Worker’s submissions, [82]–[84].
It is evident the Arbitrator was aware that the worker was not employed by the employer at the time of the TCM injury, and that she did not attend the shopping centre for any reason connected to her employment. Notwithstanding this, the Arbitrator found that the TCM injury would not have been sustained if not for her employment duties. The worker submits the Arbitrator clearly examined any causal connection to consider whether it was real and of substance, in the reasons at [33] to [39]. The reasons at these paragraphs demonstrate the Arbitrator considered the lay and medical evidence and determined the only reason for the TCM injury was the worker’s employment duties with the employer. This clearly meant there was “a causal connection which was real and of substance”. The worker refers to the reasons at [39].[106]
[106] Worker’s submissions, [85]–[90].
The worker submits the employer’s reliance on the facts in Badawi is “not instructive”. The two cases involve facts that are “completely different”. The matters listed in subs (2) of s 9A are not relevant in the same way as they were in Badawi. The factors listed in subs (2) are only to be taken into account to the extent that they are relevant. A decision maker can take account of other matters that are relevant.[107]
[107] Worker’s submissions, [94]–[96].

Consideration

The plurality in Badawi, discussing the application of s 9A of the 1987 Act, said:
“… the President was required to take into account the matters specified in s 9A(2). Those factors are matters that the legislature has determined are relevant to the question whether the employment concerned is a substantial contributing factor to the injury. To the extent that the matters specified in paras (a)-(f) are relevant to the case under decision, they must be taken into account and applied according to their terms. A decision maker is not confined to the matters specified in s 9A(2) …”.[108]
And:
“The starting point for the President’s determination was that the appellant had sustained injury in the course of her employment. That was a matter that had been conceded, but its relevance remained fundamental to the task that the President was required to undertake under s 9A. It remained fundamental because, as we have already explained, ‘employment’ for the purposes of s 4 and s 9 is the same employment that is under consideration in s 9A. By that, we are not saying that the tests under the two sets of provisions, that is, s 9 and s 4 on the one hand and s 9A on the other, are the same. We have already explained that s 9A involves a different test than that which arises under the earlier provisions.”[109]
And:
“We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, ‘substantial’ as it appears in s 9A means ‘in a manner that is real and of substance’ and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, ‘little substance’.”[110] (emphasis in original)
And:
“It should be said, however, that there may be circumstances where the factors considered necessary and sufficient to satisfy the test ‘arising out of employment’ for the purposes of s 9, are sufficient to satisfy the test in s 9A. Whether that is so will depend on the facts. Both are factual questions. The question under each section is differently expressed and must be considered separately. It is not sufficient to find that injury arose out of ‘employment’ and to thereby be able to conclude that the employment concerned was a ‘substantial contributing factor’. Such a reasoning process is expressly proscribed by s 9A(3).”[111]
[108] Badawi, [89].
[109] Badawi, [91].
[110] Badawi, [82].
[111] Badawi, [85].
The Arbitrator, dealing with s 9A, noted this issue was “a separate one to whether that injury arose out of employment”, and one where “the fact-finding exercise is different”.[112] He noted the issue was “a question of fact and is a matter of impression and degree … to be decided after a consideration of all the evidence”.[113] He accepted that what was required was “a causative relationship”.[114] The Arbitrator, referred to the specialist medical evidence and concluded there was “a causal link between the accepted workplace psychological injury and the advent of the cardiac injury”.[115]
[112] Reasons, [33].
[113] Reasons, [34], referring inter alia to Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153, [29].
[114] Reasons, [39].
[115] Reasons, [38].
The Arbitrator noted a concession by the employer that it was possible for the TCM injury to arise out of the worker’s employment, “even after that employment had ceased”, if there was an appropriate causal connection.[116] The Arbitrator clearly recognised that s 9A was a different test, and required satisfaction that was separate from, the causal test governing whether injury ‘arose out of’ employment.
[116] Reasons, [16].
I have concluded above that the Arbitrator did not err in finding injury ‘arising out of’ the employment, on the basis of the established causal link between the work caused psychological injury and the condition of TCM. The employer submits that the Arbitrator, in then dealing with s 9A, failed to consider other factors, such as the fact that the worker (as at December 2015) no longer worked for the employer, and that the worker’s attendance at the shopping centre at that time was unconnected with her employment duties. It remained necessary for the Arbitrator to consider the factors in s 9A(2) to the extent to which they were relevant, in dealing with whether s 9A was satisfied. It is possible that the same causal connection that supported a finding of injury ‘arising out of’ the employment could also support a conclusion that s 9A was satisfied (see [88] above).
Submissions on this issue on the appeal were confused to an extent by the fact that the found date of the TCM injury post-dated the worker’s employment with the employer. The employer’s submissions on s 9A included the following:
“As the [worker] was no longer employed by the [employer], it is submitted that there can be no aspects of her ‘employment’ which would be relevant. As she was no longer employed, there was nothing about her employment that required her to be in the shopping centre on that day and at that time.”[117]
[117] Employer’s submissions, [65].
Arguably the Arbitrator should have considered subcll (a) of s 9A(2), being “the time and place of the injury”. The injury occurred at a shopping centre at a point in time after the worker’s employment had come to an end.
Section 9A(1) requires that “the employment concerned” be a ‘substantial contributing factor’ to the injury. The plurality in Badawi said that “‘employment’ for the purposes of s 4 and s 9 is the same employment that is under consideration in s 9A”.[118] Their Honours said:
“… a decision maker, in determining under s 9A whether the employment concerned is a substantial contributing factor, is required to consider the employment concerned and the circumstances surrounding the occurrence of the injury, including activities that might be undertaken during an interval in the employment. Those circumstances may be fully encompassed by the factors specified in s 9A(2), or there may be other factors that are relevant to take into account.”[119] (emphasis added)
[118] Badawi, [91].
[119] Badawi, [101].
In the current matter, the ‘employment concerned’ was the worker’s employment as a disability care worker. This was the ‘employment’ for the purposes of s 4 and was also the ‘employment’ “under consideration in s 9A”. Whether s 9A was satisfied, in respect of the found ‘heart attack injury’, could not be ascertained by reference to the worker’s employment in December 2015, at a point in time after her employment had come to an end. The fact that the worker was not employed in December 2015 could not constitute ‘the employment concerned’ in considering whether s 9A was satisfied. This was made clear in Badawi, where the plurality said:
“to approach the question in s 9A from the perspective of the non-employment activity undertaken during an interval in the employment [in that instance skiing], rather than from the perspective of the employment concerned, was to misunderstand the statutory test”.[120]
[120] Badawi, [102].
The Arbitrator noted that s 9A was a separate question to whether injury arising out of employment was established. He said that “[o]ften, the facts relevant to both enquiries are identical, however, the fact-finding exercise is different”. He referred to a number of authorities relevant to s 9A. He noted the satisfaction of s 9A “is a question of fact and is a matter of impression and degree”, referring to Dayton. He noted it was necessary that employment be a substantial contributing factor, not the substantial contributing factor.[121]
[121] Reasons, [33]–[36].
The Arbitrator accepted that if not for the worker’s employment as a disability support worker, the encounter with Roberta would not have resulted in the injury of TCM. He described the employment as “a causal link between the accepted workplace psychological injury and the advent of the cardiac injury”. He said this view was held by “every doctor qualified in these proceedings”. This was a reference to the medical evidence dealing with the onset of the condition of TCM (see the evidence referred to at [104] to [105] below). The Arbitrator referred to a submission on the employer’s part that “what is required is a causative relationship”. He said that the medical opinions “establish the presence of such a causal connection”. He found that s 9A was satisfied.[122]
[122] Reasons, [37]–[39].
The Arbitrator briefly but accurately described the essential nature of the test. The reason he gave for concluding that s 9A was satisfied was the presence of the causal relationship. This is consistent with the need for a causal relationship that is “real and of substance”. On the Arbitrator’s findings, which are supported by the medical evidence, the cause of the TCM injury was the worker’s accepted psychological injury (which resulted from events in her employment) and her subsequent reaction to seeing Roberta (who she knew from her employment at the time the psychological injury was suffered). The worker submits:
“… there were no other contributing factors, let alone substantially contributing factors, to the [worker] sustaining her injury other than those encountered by her in her employ with the [employer]. The [employer] has not sought to allege such an alternative”.[123]
[123] Worker’s submissions, [84].
The time and place were of limited importance to the TCM injury. The causal link was not predicated on the fact that the worker was in a shopping centre, nor the fact that it occurred at a time after the worker’s employment with the employer had come to an end. It was predicated on the worker’s sighting of Roberta, a person who had been “mean” to the worker when she suffered the accepted psychological injury. Dr Robinson (the treating psychiatrist) recorded a history of the event:
“… she had seen one of the workers from Disability Service whilst she was out shopping. This made her very upset. She explained that she does not want to see any of the workers, or even to remember them at all. That night she ‘did not feel good’, and the next morning she felt worse, and did not know what was wrong. She called her friend to take her to the hospital, where the diagnosis was made.”[124]
[124] Dr Robinson’s report 4/2/16, ARD, p 46.
Dr Herman described the event as “encountering (unexpectedly) a work colleague”.[125] The passage from Dr Herman’s report, quoted at [14] above, suggests the fact that the encounter was unexpected was a factor in its impact on the worker. Accepting this, the ‘employment concerned’ would remain a substantial contributing factor. Dr Herman said:
“In my opinion her pre-existing psychological condition (post-traumatic stress disorder in relation to bullying and harassment at work) was a key factor in provoking anxiety which subsequently led to her Takotsubo’s cardiomyopathy.”
[125] Dr Herman’s report 22/1/19, ARD, p 55.
It is specifically noted in Badawi that there will be circumstances where the causal relationship, which supports a conclusion that there was injury arising from employment, will also be sufficient to satisfy s 9A. Given the strong causal relationship between the worker’s relevant employment duties and the TCM injury, this in my view is such a case. It follows that the basis on which the Arbitrator concluded that s 9A was satisfied, in the particular factual circumstances, did not involve error. If the Arbitrator had engaged in a consideration of “the time and place of the injury” in accordance with cl (a) of s 9A(2) this would not have changed the result.
Ground No. 2 would not succeed.

GROUND NO. 3

Employer’s submissions

The employer submits the Arbitrator correctly described the test in s 9B of the 1987 Act as an evaluative task, comparing the risk to which the nature of the worker’s employment gave rise with the risk if he or she was not employed in employment of that nature. It was not a true test of causation. The employer submits that the Arbitrator then approached the test as if he was applying conventional principles of true causation, asking whether the condition of TCM resulted from the worker’s employment duties. The employer refers to Kim. The employer submits that, to address s 9B, the Arbitrator was required to determine what it was about the nature of the employment concerned at the date of injury, 24 December 2015, “that gave rise to a significantly greater risk than had the worker not been employed in employment of that nature”. It submits this was not addressed, which amounted to an error of law.[126]
[126] Employer’s submissions, [67]–[74].

Worker’s submissions

The worker submits the Arbitrator was “cognisant of the current legal test, including the terms of the legislation” and the decisions in De Silva and Kim. This is submitted to be apparent from the reasons at [40] to [41] and at [45].[127] The worker submits the Arbitrator dealt with the expert evidence relied on by both parties. In considering the satisfaction of s 9B it was necessary to have regard not only to the worker’s duties, but also to the “interactions with both patients and co-workers which that employment entailed”. At [44] the Arbitrator accepted there was “a significantly greater risk of heart attack injury” in the worker’s employment, as it included “being placed in circumstances which gave rise to the assault” and to the incident regarding hepatitis infection and the interaction with the co-worker who told her about the pudding. If not for these aspects of her employment the worker would “not have sought to dissociate herself from her co-workers and the TCM would not have occurred”. It is submitted the reasons at [43] to [44] and [47] make it clear the correct legal test and principles were identified and applied.[128]
[127] Worker’s submissions, [104].
[128] Worker’s submissions, [105]–[106].
The Arbitrator stated that he was required to undertake “an evaluative task comparing the risks associated with the [worker’s] employment and those had she not been so employed”. The worker submits the Arbitrator relied on the medical evidence to determine that the TCM condition would not otherwise have been sustained, and for this reason s 9B was satisfied. This did not involve error.[129] The worker submits the employer’s submissions suggest ignoring “all of the relevant factors that gave rise to the injury” and focussing only on the day when she attended the shopping centre. She submits s 9B “is focused on the injury and not the incident”. It is submitted the legislation and cases do not support a requirement that the focus is to be on the date of injury.[130]
[129] Worker’s submissions, [106]–[108].
[130] Worker’s submissions, [109]–[113].

Consideration

Both parties accept that s 9B has application in the circumstances. Neither party argues that De Silva and Kim are wrongly decided. The following may be taken from those decisions:
(a) the worker carries the onus of establishing that the test in s 9B is satisfied;[131]
(b) where the words ‘an injury’ first appear in s 9B(1), this refers to an injury asserted by a worker, in respect of which compensation is otherwise payable, subject to satisfaction of the test in s 9B;[132]
(c) where s 9B(1) refers to ‘the nature of the employment concerned’, it refers to “what the worker in fact does in the employment that caused or contributed to the injury”;[133]
(d) s 9B(1) requires that the relevant risk of suffering the injury in the employment concerned be significantly greater than the risk had the worker not been employed in employment of that nature. ‘Significant’ in this context means ‘important; of consequence’. The comparison involves an assessment of comparative risks and is not a true test of causation.[134] The test involves an evaluative judgment,[135] and
(e) the test requires satisfaction on all of the evidence. It does not necessarily “require that there be medical evidence to some particular effect”. In cases raising s 9B it is desirable that there be medical evidence addressing the requirements of the section.[136]
[131] De Silva, [54]–[55], Kim, [38].
[132] De Silva, [130].
[133] De Silva, [66]–[73], Kim, [39].
[134] De Silva, [105]–[106], Kim, [40], [45].
[135] Kim, [52].
[136] Kim, [41], [45]
Consistent with the above, the ‘heart attack injury’ suffered by the worker was Takotsubo Cardiomyopathy. The ‘employment concerned’ was the worker’s employment that caused or contributed to the injury. This was her employment with the employer as a disability care worker. For the worker to establish that s 9B was satisfied, it was necessary that she establish her risk of suffering Takotsubo Cardiomyopathy was significantly greater than had she not been employed in that employment.
Dr Herman, qualified by the employer, said:
“In my opinion the worker’s employment (as a disability support worker) did give rise to her current heart condition than had she not been employed in employment of that nature [sic].
In the setting of a significant psychological injury, the chance meeting with a work colleague provoked significant psychological stress.
Emotional stress is [a] well known trigger for the provocation of a Takotsubo’s (stress induced) cardiomyopathy in middle-aged ladies who are predisposed.
30–40% of stress induced cardiomyopathy follows exposure to emotionally stressful events.
Had she not experienced prior work-related psychological trauma, meeting a work colleague unexpectedly would probably not have provoked the emotion triggering the cardiomyopathy.”[137]
[137] Dr Herman’s report 22/1/19, ARD, p 56.
Dr Haber, in the worker’s case, said:
“She has a condition called Tako Tsubo cardiomyopathy which is well known to be emotionally brought on and it does not occur spontaneously. Therefore she had a significantly greater risk of suffering this cardiac condition [than] had she not been employed in employment of that nature.”[138]
[138] Dr Haber’s report 4/10/19, ARD, p 67.
The Arbitrator quoted at some length from Dr Herman’s report, and noted the causal connection was supported also by Dr Haber in the worker’s case. The Arbitrator said that “the medical evidence clearly supports a finding that had the [worker] not been subjected to the factors which caused her accepted psychological injury, then she would not have suffered the episode of TCM which has left her with impaired cardiac function”.[139]
[139] Reasons, [27]–[30].
The assessment of comparative risks, called for by the section, involves comparing the risk in the employment that caused the heart attack injury, with the risk if the worker was not employed in that employment. Although it is not a true test of causation, it does require assessment of the risk in the actual employment in which injury was suffered. This is then compared with the risk if the worker was not so employed. It is necessary that the first of these risks be ‘significantly greater’ than the second. On the medical evidence, the significantly greater risk of the heart attack injury (Takotsubo Cardiomyopathy) given rise to by the actual employment, was associated with the risk of psychological injury in the actual employment. On the evidence this included both bullying and harassment by fellow workers and the risk of being assaulted. A comparison between those levels of risk was what the section required. The risk associated with the actual employment was significantly greater than if the worker was not so employed. This was because only the first of the scenarios (the actual employment) carried the risk of psychological injury, which had been causative of the heart attack injury which the worker suffered.
It follows that Ground No. 3 would fail.

DISPOSITION OF THE APPEAL

I have concluded, after a full consideration of the Grounds of Appeal on their merits, that each of them would fail. For reasons given above, the interests of justice do not require that the employer’s application to extend time be granted.

DECISION

The employer’s application to extend time pursuant to r 16.2(5) of the Rules is dismissed.

Michael Snell
DEPUTY PRESIDENT

13 January 2021