Secretary, Department of Education v BB

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Secretary, Department of Education v BB [2021] NSWPICPD 21
APPELLANT:	Secretary, Department of Education
RESPONDENT:	BB
INSURER:	Allianz – TMF
FILE NUMBER:	A2-2864/19
PRINCIPAL MEMBER:	Ms J Bamber
DATE OF MEMBER’S DECISION:	27 November 2020
DATE OF APPEAL DECISION:	13 July 2021
CATCHWORDS:	WORKERS COMPENSATION – Section 11A of the Workers Compensation Act 1987 – requirement for medical opinion where several potentially causative events may have contributed to the psychological injury – Hamad v QCatering Limited [2017] NSWWCCPD 6 discussed and applied – application of s 34 of the 1987 Act – the maximum statutory cap on weekly payments
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr F Doak, counsel
Bartier Perry Lawyers
Respondent:
Mr B McManamey, counsel
Brydens Lawyers
ORDERS MADE ON APPEAL:	1. Paragraph 3 of the Senior Arbitrator’s Certificate of Determination dated 27 November 2020 is revoked. 2. The appellant is to pay the respondent weekly payments of compensation as follows: (a) $2,128.50 from 1 April 2018 to 30 September 2018; (b) $2,145.30 from 1 October 2018 to 31 March 2019; (c) $2,177.40 from 1 April 2019 to 30 September 2019, and (d) $2,195.70 from 1 October 2019 to 19 November 2019. 3. The Senior Arbitrator’s Certificate of Determination is otherwise confirmed.

INTRODUCTION

BB (the respondent) claimed weekly compensation, treatment expenses and lump sum compensation for 17% whole person impairment as a result of psychological injury incurred in his employment with the Secretary, Department of Education (the appellant). The respondent alleged the injury occurred as a consequence of:
(a)    exposure to violent, aggressive and anti-social behaviour by students;
(b)    unreasonable criticism and victimisation by his superiors involving micromanagement, unfair treatment and lack of support in the context of him raising concerns about his welfare;
(c)    exposure to negative interactions with and bullying and harassment by his superiors.
The respondent nominated a deemed date of injury of 23 May 2017, which was his last day at work. The appellant disputed the claim, alleging that the respondent’s psychological injury was wholly or predominantly caused by reasonable action taken by or on behalf of the employer in accordance with s 11A of the Workers Compensation Act 1987 (the 1987 Act). The actions identified by the appellant were actions with respect to performance appraisal, discipline and transfer, although the appellant conceded that the actions which might fall within “performance appraisal” were more likely to be considered “discipline.”
The matter proceeded to arbitration. The appellant conceded that the respondent suffered a psychological injury in the course of his employment, to which his employment was a substantial contributing factor, in accordance with ss 4 and 9A of the 1987 Act.

TRANSITIONAL MATTERS

After this case had been heard and determined and before the appeal in this matter was allocated to me, the New South Wales Workers Compensation Commission was abolished.[1] The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020 (the 2020 Act), from 1 March 2021.[2] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission, and the decision-maker involved in these proceedings became a principal member of the Personal Injury Commission. However, as at the time of the various orders made in the proceedings the decision maker bore the title of Senior Arbitrator, in this decision she will be referred to by her former title of “Senior Arbitrator”.
[1] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020.
[2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

BACKGROUND

The history of these proceedings is extensive. The proceedings were commenced on 11 June 2019. The matter came before an arbitrator on 6 September 2019 and proceeded to arbitration. The Arbitrator found in favour of the appellant (the then respondent). The respondent (the then applicant) appealed that decision. Deputy President Snell determined the appeal, finding that the requisite error on the part of the Arbitrator was established and remitted the matter for re-determination before a different arbitrator. The matter came before Senior Arbitrator Bamber, who found in favour of the respondent (the applicant below).
The appellant appeals the Senior Arbitrator’s decision, which was issued in a Certificate of Determination on 27 November 2020.

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that the appeal can be determined ‘on the papers’.
I have had regard to Procedural Directions PIC2 and WC3, 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.

THRESHOLD MATTERS

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

THE EVIDENCE

The lay evidence

The respondent’s evidence

The respondent signed a statement dated 26 February 2019.[3] He provided a summary of his personal background and employment history. He advised that he had been employed by the appellant for a number of years and had been appointed permanently to his (then) current school as a head teacher, secondary studies, in April 2015. He said he also had continued employment as a Curriculum Coordinator in a different school, working an average of 5–6 hours on Saturdays.
[3] Application to Resolve a Dispute (ARD), pp 3–26.
The respondent said that, after his appointment to the head teacher position, in Term 4 of 2015 and Term 1 of 2016, he relieved in the position of deputy principal for about six months. The respondent indicated that he had previously relieved as a deputy principal at his former school for two years.
The respondent described an incident in November 2015 when he intervened in a violent physical fight between two students, in which he was pushed by one of the students. He described a further incident involving the same student in December 2015, when the student verbally abused him and threatened him with violence. The respondent said that, following these incidents, he felt intimidated and feared for his own safety.
The respondent said that both of these incidents were reported to the school and that the deputy principal, who was relieving principal, was aware of them. He said that the police became involved because of the serious nature of the incidents. The respondent said that he was not offered any support from the appellant. The respondent stated that, because he feared for his safety, he attempted to take out an apprehended violence order, but was told by the police that the order could not be issued because the student was a minor.
The respondent reported that there was a further incident involving the student in February 2016. On this occasion, he and the deputy principal were conducting a student “suspension” meeting when the student abused them and threatened violence to them, following which the student roamed the school, smashing glass and threatening and abusing staff. The student was arrested by police. The respondent stated that the school was aware that the respondent was mentally affected by the incident, but no support was provided. The respondent described feeling discomfort and intimidation whenever he saw the student thereafter and said that he developed anxiety, with flashbacks, nightmares and difficulty sleeping.
The respondent advised that in April 2016, the deputy principal ceased acting as the principal and returned to her substantive role as deputy principal because the substantive principal had returned from secondment. He said that the other deputy principal was transferred which left a vacancy for the temporary position of deputy principal. The respondent submitted an expression of interest for the vacant position however was unsuccessful. He said that he received no meaningful feedback from the principal and the position was given to another head teacher who had less experience in the role and fewer skills than him. The respondent stated that he found this curious, particularly because he had acted in the role and had received only positive feedback from the deputy principal.
The respondent stated that he thereafter applied for numerous other positions as a deputy principal and was encouraged by the principal to do so, but he was unsuccessful. He said that, in the feedback he received, he was advised that the principal was unsupportive, and had provided information which he described as “false and misleading,” and which he considered was unfairly preventing him from being interviewed. The respondent indicated that he raised this issue with the principal, who denied the assertion and advised that she had been supportive of his applications.
The respondent described a further abusive and threatening incident involving a student in August 2016 in which he felt intimated and fearful, following which the student was only given minimal punishment and was returned to his class. The student thereafter continued to be disruptive, rude and abusive. Following a further incident with this student, which involved the principal and two deputy principals attempting to deal with the student, the student was suspended for a short time. The respondent said that he met with the principal on 23 August 2016 and advised her that he had been distressed by the student’s behaviour and felt unsupported by the school. He stated that the principal was dismissive of his complaints and the outcome of the meeting was unsatisfactory.
The respondent advised of another incident involving a different student on 31 August 2016, in which the student threatened to hit him with a chair and to punch him. The respondent indicated that the student was given a short suspension and then returned to his class. This made him feel anxious, intimidated and unsupported, despite having already expressed his concerns about this student’s behaviour in writing to the head teacher of learning and support. He said his email was ignored.
The respondent complained that he began to feel unsupported and was becoming more anxious and nervous in and around the classroom and playground. He described experiencing unwanted intrusive images and thoughts of the incidents during the day and at night-time and the onset of chest pain and panic attacks while at school. The respondent stated that he persevered, hoping things would improve, or he would be offered a position in another school.
The respondent advised that the school conducted a faculty review of secondary studies in Term 3 of 2016, for which he was responsible. He said that the review was a periodic self-evaluation process intended to improve practices and procedures and identify areas for further development and was not conducted as a result of any complaint or performance issue in the faculty.
The respondent reported that the follow up from the review involved a series of meetings between him, the principal and the deputy principal, conducted during Term 4 of 2016. The respondent said that the principal required him to create a number of documents without assistance from the rest of the faculty, and that he was blamed for the areas which required improvement, despite his protestations about the reasons for the causes of the need for the further development. The respondent said that this caused him stress. The respondent stated that, at times during this process, the excessive additional workload caused him to feel exhausted. He added that, although he thought that the faculty meetings were intended to be conducted in Term 4 of 2016, they continued into 2017. The respondent indicated that there was no reason for the meetings to continue as he had completed all of the recommended documents and he had planned to implement the new procedures in 2017.
The respondent stated that he requested training in the administration of the school’s subject and assessment data and clerical assistance to perform that task. He said that the principal was aware of his lack of training in that area, the long hours he was working, and the deterioration in his physical and mental health, but provided no support and was dismissive of his complaints. The respondent described the principal’s attitude towards him as negative, angry, unpleasant, abrupt and intimidating, which led to his dissatisfaction with work.
The respondent indicated that he contacted the director of public schools (the director) and met with her a number of times between November 2016 and March 2017. He said he complained to her of being overworked and unsupported, as well as his physical symptoms of chest pains and of the principal’s negative and misleading information to the panel of convenors who assessed his application for other positions. The respondent said that the director advised him to report any work related incidents to the appellant’s Health and Safety Directorate, particularly if those incidents affected his health or well-being, and also suggested the respondent seek counselling through the Employee Assistance Program (EAP). He said that, initially, he was reluctant to pursue those actions.
The respondent referred to a meeting with the deputy principal on 23 May 2017, which, he said, was a regular meeting when he was to provide her with an update and discuss matters relating to his faculty. He said that the meeting was stressful and from the outset, the deputy principal asked him to produce evidence of work he had done that she had asked for at the previous meeting and should have been completed. The respondent said that he had not been provided with the minutes of the meeting (which was a frequent occurrence) and, because he was not aware that the information was needed, he did not have the work with him. The respondent asserted that the deputy principal conducted herself in an aggressive and bullying manner, gave him “mixed messages” and spoke to him in a belittling manner.
The respondent recalled that in an incident involving a student in February 2016, the deputy principal also spoke to him and acted in an aggressive manner, when she grabbed his arm and yelled at him, directing him to go and sit in the deputy principal’s office.
The respondent referred to a further matter, in which he wrote to the principal and the deputy principal complaining about having to share an office with the careers advisor, which he said caused him stress. He asked for another office to be allocated for health and safety reasons. He described the careers advisor as inconsiderate and unco-operative and complained that she behaved inappropriately. The respondent said he also explained why it would be beneficial for the careers adviser to have her own office. The respondent gave a detailed account of what he described as the careers advisor’s rudeness and inappropriate behaviour, which he reported to the principal and the deputy principal.
The respondent stated that his concerns, which were causing him distress, were ignored. He referred to numerous further meetings with the principal, which included a meeting in February 2017, when the principal offered him a single training session in the administration of the schools subject data, and, if it were not successful, a performance improvement plan would be initiated. He further referred to having lodged a series of reports of work related incidents which caused him psychological injury between February and May 2017. He said that no investigation was undertaken. He continued to feel nausea and anxiety on his way to work and experienced chest pain and social withdrawal, which caused him to take frequent sick leave.
The respondent indicated that he lodged a formal complaint of workplace bullying on 29 June 2017, addressed to the director and raising 86 incidents against the principal, the deputy principal and the careers adviser, which was dismissed by director. The respondent said that he lodged several applications for a transfer which were supported by medical reports from his doctors, but the transfers were rejected.
The respondent provided a detailed account of a meeting held with the principal on 23 May 2017.[4] The respondent stated that a representative of the NSW Teachers Federation also attended the meeting in the capacity of his support person. The respondent reports that, at this meeting, he was handed a letter by the principal, which set out a number of allegations against him. Those were:
(a)    engaging in aggressive and intimidating behaviour in meetings with the deputy principal on 17 March and 14 April 2017;
(b)    being rude and argumentative to the principal during a meeting on 16 May 2017;
(c)    refusing to discuss operational matters with the deputy principal outside of scheduled meeting times and requiring written notice of such discussions;
(d)    repeatedly claiming that he had not been informed of matters relating to his role and that he had not received the training requested when the training had been provided on 16 December 2016 and 2 March 2017, and
(e)    making unreasonable requests by way of email, including to the careers advisor.
[4] ARD, pp 22–23.
The respondent disputed those allegations and asserted that they were unfair, given that he had raised issues about the deputy principal and the careers advisor with the principal, and his complaints had been ignored. The respondent also considered it procedurally unfair that the principal was conducting the investigation when one of the allegations was raised by her. The respondent said that, in any event, no disciplinary action was taken against him, which indicated that the allegations were in respect of minor matters.
The respondent also gave a detailed account of the incident involving a student in February 2016. The respondent said that after school finished on 23 May 2017, he attended his general practitioner. He said that he was too unwell to return to work because of the accumulation of workplace stressors. The respondent described his ongoing psychological symptoms and his ability to return to work thereafter. He referred to three admissions to hospital in relation to heart palpitations, the second occurring after he attended an appointment with Dr Bertucen, a psychiatrist retained on behalf of the appellant.
The respondent described the process that followed the lodgment of his claim for workers compensation, which ultimately resulted in his claim being disputed. He also described his ongoing psychological symptoms and the effect of those on his relationships with family, friends and colleagues.
The respondent attached an incident report made by him dated 11 December 2015 in which he gave a detailed description of the incident involving the suspended student who refused to leave the school grounds, requiring the police to be called to the school.[5] The report was a factual account and did not refer to any psychological impact experienced by the respondent in that event.
[5] ARD, pp 30–31.

The respondent made a further statement dated 18 May 2020 in which he provided a summary of the incidents involving student aggression.[6] He referred to incidents in November 2015, December 2015, and February 2016, as well as general student misbehaviour between April 2016 and August 2016, with a further incident in August 2016 involving a student about whom he had previously raised concerns, which particularly caused him distress. He stated that, as a result of those incidents, as well as the lack of support from the school’s senior executives, he experienced anxiety and concerns for his well-being, as well as low motivation. The respondent indicated that he met with the principal on 23 August 2016 and raised his concerns and complained of a lack of support provided to him by the school. The respondent thereafter provided an exhaustive “summary” of complaints in respect of his workload, his dealings with the principal, the deputy principal and the careers advisor, as well as his requests for training and administrative support.
[6] Application to Admit Late Documents (AALD) dated 15 June 2020, pp 1–69.
The respondent also provided a statement dated 1 March 2019.[7] That statement adds nothing further in relation to the issues to be considered on appeal.
[7] ARD, pp 1–2.

The statements of the principal

In her statement dated 9 April 2018,[8] the principal described her role and the role and responsibilities pertaining to the respondent’s position as head teacher. The principal advised that there had been some significant issues about the respondent’s work while he acted in the position of deputy principal and further issues about his performance arose out of the faculty review when he returned to his substantive role as head teacher. The principal said that any issues about the respondent’s performance that arose during the first term and early part of the second term were attributed to him being a new member of staff in a new role.
[8] ARD, pp 318–344.
The principal explained that, during the faculty review, the respondent’s workload and those of the two members of staff he supervised were reviewed and their job descriptions were re-negotiated. The principal said that, because of the significant issues that emerged in relation to the respondent’s performance as a head teacher, she and the deputy principal implemented strategies to provide ongoing informal support for the respondent. The principal stated that the respondent did not react well to the feedback he was given or the suggestions for improvement. She asserted that, over time, he became agitated and aggressive in his response to these suggestions and in his manner to various other people.
The principal identified what she described as “extensive” issues, including:
(a)    last minute completion of tasks;
(b)    delegation of a large number of his responsibilities leading to staff being unable to complete their own workload;
(c)    an inability to understand the school’s NSW Education and Standards Authority (NESA) data website;
(d)    classroom management;
(e)    poorly managed processes, and
(f)    unsatisfactory completion of learning plans and the post school destination survey.
The principal added that the staff under the respondent’s supervision complained of feeling unsupported by the respondent and that he had failed to arrange the required faculty meetings and implement their performance development plans.
The principal stated that the management of the respondent’s performance was an informal process conducted over several months in accordance with, and in consultation with the Director of the Employee Performance and Conduct Unit (EPAC). The principal observed that there was some improvement in the respondent’s performance, which was largely attributable to the support provided by the deputy principal. The principal referred to the respondent’s applications for promotion positions at other schools and commented that, when she provided the respondent with feedback in the context of those unsuccessful applications, his agitation and aggression escalated, which in turn she was required to address with him. She said he also spoke to her about stress arising from his personal life.
The principal referred to her obligation as the respondent’s referee, which was to provide an honest and accurate account in relation to his applications for promotion. She said she discussed with him a number of inaccuracies in his applications in a meeting with him, and said that the respondent became more aggressive and raised his voice at her, so that she advised him she would not be bullied into giving an inaccurate referee report and did not appreciate his tone of voice. The principal said that the respondent thereafter accused her of bullying and aggressive behaviour. Following this meeting, she handed the respondent a letter in which she outlined his specific conduct, which included that he “rolled his eyes,” “sneered” and raised his voice. The principal advised that she and the deputy principal then began to receive complaints by the respondent about their conduct.
The principal stated that on 23 May 2017, in a formal meeting with the respondent, she handed him a letter, in which she identified the respondent’s aggressive conduct to both her and other staff members. She said that the letter had been prepared in consultation with EPAC. The principal stated that the respondent went off work that day.
The principal said that the respondent made the following allegations that she:
(a)    had sabotaged his applications by providing false and subjective information as his referee;
(b)    withheld minutes of meetings and information about funding or forced him to teach outside of his qualifications;
(c)    ignored his request to have a separate office;
(d)    directed him to do additional work on top of an already excessive workload;
(e)    denied the respondent access to adequate administrative and professional support, feedback and supervision;
(f)    used her position to threaten him with a performance improvement plan to intimidate him or used intimidating language;
(g)    dismissed his complaints about inappropriate conduct and aggressive behaviour by the deputy principal;
(h)    left details of student complaints about him in his pigeon hole and on a teacher’s desk;
(i)    failed to provide him with training and support in using the NESA data system, and
(j)    dismissed his concerns that he was suffering from anxiety.
The principal gave a detailed account of her reasons for denying the alleged behaviour and of what she said actually occurred in the events described by the respondent.
The principal provided further evidence in a document directed to the appellant dated 31 July 2020.[9] The principal referred to her earlier statement and the numerous allegations made against her by the respondent in his later statement dated 18 May 2020. The principal specifically denied the allegations and provided reasons as to why the allegations lacked foundation.
[9] AALD dated 24 August 2020, pp 3–5.

The statement of the deputy principal

The deputy principal provided a statement dated 12 March 2018.[10] She described her working relationship with the respondent and said that, from the end of Term 3 of 2016, the respondent was under her direct supervision. The deputy principal said that there were areas in which the respondent required development and she therefore implemented a range of support mechanisms to address those areas. She said that these issues also became increasingly apparent during the respondent’s period as relieving deputy principal, which were addressed informally. She said that when he returned to his substantive role as head teacher, she put in place a more formal approach involving regular support and communication. The deputy principal described the respondent’s difficulties with monitoring and recording attendance of students through the NESA system, timeliness and the ability to develop interpersonal relationships. Further, there were issues in relation to the respondent’s manner in which he dealt with staff and students on a number of occasions. The deputy principal referred to an incident involving a student, which the school was trying to de-escalate, but was exacerbated by the respondent’s conduct towards the student. She further referred to the respondent’s disruptive conduct and questionable professional conduct in dealing with the careers advisor, as well as the respondent’s conduct towards her, which she described as aggressive, intimidating and bullying, speaking with a raised voice and using intimidating body language.
[10] ARD, pp 345–356.
The deputy principal noted each of the respondent’s complaints in respect of what occurred in the various meetings. She provided her version of what occurred in those meetings and provided supporting documents where available. It is sufficient to say that the deputy principal’s version of what transpired differed markedly to the description provided by the respondent.
The deputy principal disputed the respondent’s complaints, in particular that she:
(a)    behaved in an aggressive, intimidating and condescending manner;
(b)    did not offer the respondent the opportunity to have his say;
(c)    pressured him into completing tasks before they were due and increased his workload;
(d)    ignored and dismissed his complaints about the careers advisor;
(e)    made false allegations against him of behaving in an aggressive and unco-operative manner;
(f)    yelled at and interrogated the respondent;
(g)    failed to follow up on serious incidents involving students, and
(h)    failed to have regard for the respondent’s well-being after he had expressed concern about being stressed and overworked.
On 4 August 2020, the deputy principal responded to the respondent’s subsequent allegations made in his statement dated 18 May 2020.[11] The deputy principal denied the allegations and provided an explanation for her denial.
[11] AALD dated 24 August 2020, p 6.

The statement of the careers advisor

The careers advisor also provided a statement, which was signed on 9 April 2018.[12] The careers advisor described a deteriorating working relationship with the respondent when he returned to the role of head teacher and was her supervisor during 2016 and 2017. She stated that the respondent made it clear to her that he did not want to share an office with her. The careers advisor complained that the respondent would completely ignore her, speak to her in a dismissive and rude manner and communicate in an unprofessional and hostile manner via email. The careers advisor asserted that the respondent would interrupt her on numerous occasions while she was attempting to deal with parents and students.
[12] ARD, pp 358–368.
The careers advisor stated that she considered the respondent’s behaviour as isolating, aggressive, intimidating and inappropriate. She said that she complained to the deputy principal and the principal about the emails. She said that she also complained to the deputy principal about the respondent spraying deodorant in the room they shared, despite her request that he not do so. The careers advisor alleged that she became aware that the respondent had also laid out and prepared his breakfast on her table, on top of her work, despite having his own food preparation table.
The careers advisor referred to the NESA school online system and the respondent’s complaints that he had not been trained for that system. She observed that from time to time, another staff member would ask her for assistance with that work, even though it was part of the respondent’s role and not that of the staff member. The careers advisor advised that she was asked to provide training to the respondent and to the deputy principal on the use of the NESA system and she conducted that training, although the respondent was dismissive and rude and did not appear engaged as he spent a considerable time in the training on his mobile telephone.
The careers advisor gave detailed explanations of the circumstances surrounding the events complained of by the respondent and generally disputed the allegations made against her.
The careers advisor responded to the respondent’s further allegations contained in his statement dated 18 May 2020 and denied the allegations.[13]

The medical evidence

[13] AALD dated 24 August 2020, p 9.

Dr Richard Nguyen, general practitioner

The clinical notes of Dr Nguyen, the respondent’s general practitioner, were in evidence.[14] The first relevant entry in those notes was recorded on 18 November 2016, when the respondent complained to Dr Nguyen of stress at work from the principal piling work on him and having to work 12 to 13 hours per day.
[14] Reply, pp 773–781.
On 8 February 2017, Dr Nguyen noted that the respondent had complained to the appellant about the issues and also that the principal advised the respondent that he had been put on probation because his performance was not up to standard. Further notations throughout February and March 2017 variously made reference to the respondent working long hours, being placed on an improvement plan, and feeling stressed and anxious in the context of fortnightly meetings with the principal. Dr Nguyen recorded that the respondent complained of difficulties when the principal returned to the school after her secondment and about unfair meetings with the principal and the deputy principal, as well as one meeting with the careers adviser.
In early June 2017, Dr Nguyen noted that the respondent had not worked since 23 May 2017, following a meeting with the principal about his conduct.
Dr Nguyen issued medical certificates in the context of complaints about his difficulties with school related matters for the days 18 November 2016, 9 February 2017, 14 February 2017, 21 February 2017, 6 March 2017, 28–29 March 2017 and 5 April 2017.

Dr Samuel Sidrak, general practitioner

The clinical notes of Dr Sidrak recorded between 22 May 2017 and 21 December 2017 were annexed to the appellant’s Reply to Application to Resolve a Dispute (reply).[15] At the first consultation, Dr Sidrak recorded the following history:
[15] Reply, pp 782–801.
“presented due to stressors and bullying at work for the past 7 months
has been in several meetings with his employer and principal
he has been under review for professional development and constantly being given more work
states has had to work from 6am to 6.30pm each day
has been constantly reviewed for his conduct which he states has not been founded
feels threatened and discriminated against by his supervisor
wants to commence a compensation claim or claim stress leave due to the workplace bullying
has been having anxiety attacks over the past several months
has also been feeling depression and unable to sleep is stressed most days
denies any self harm or suicidality”.[16]
[16] Reply, p 801.
The respondent consulted Dr Sidrak again on 23 May 2017, when the respondent complained of ongoing bullying in the workplace. Dr Sidrak prescribed medication and referred the respondent to Ms Hanan Dover, clinical and forensic psychologist. Following further consultations, Dr Sidrak noted the respondent suffered from anxiety attacks in the context of returning to work and diagnosed anxiety and major depression. On 8 December 2017, the respondent presented in an angry and highly anxious state following the denial of his claim for workers compensation. Dr Sidrak noted that the respondent was to see a psychiatrist the following week and diagnosed depression and post-traumatic stress disorder.
The clinical notes recorded by Dr Sidrak between 13 February 2018 and 22 November 2018 were annexed to the ARD.[17] Dr Sidrak noted that the respondent continued to complain of anxiety and depressive symptoms, which were aggravated by receiving the correspondence refusing his application for a transfer to another school, and that the respondent had made a claim for compensation as a result of workplace bullying. On 24 April 2018, and subsequent consultations, the respondent also reported feeling light headedness, as well as experiencing nightmares about the principal and heart palpitations.
[17] ARD, pp 193–219.
On 19 July 2018, Dr Sidrak recorded:
“Presented requesting a work compensation file to be opened for another incident
states had thre[e] incidents for the same child from Nov 2015 to Feb 2016
9/11/2015; 11/12/15; 2/10/216 [sic]
had a violence incident with deputy principle [sic] was called into office … as a child was told to leave premisis [sic]
child was abuse and swearing
did not harm [the respondent]
violent towards staff
police were called
deputy principle [sic] had rushed into his room and asked him to call the police to take the child off the grounds
x 2 previous incident involving the same child
incident reports were placed with the school
wants to file a work claim for these incidents claiming psychological injury ongoing since he has mentioned these incidents during consults as a reason for him not wanting to return to the school
this was coupled with how the school had managed his psychological insult
deputy principle involved in this claim is also claimed to have been abusive and exhibiting bullying to the patient
this had lead [sic] to his initial work compensation claim”.[18]
[18] ARD, p 212.
On 21 July 2018, Dr Sidrak recorded more detailed accounts of the incidents involving students from the school. He noted that the respondent was of the view that the students were not at fault but complained that the school did not offer him adequate support, which put him in dangerous situations with the students. Dr Sidrak recorded that those events added to stressors of the workplace bullying, and together those stressors had a cumulative effect causing Post Traumatic Stress Disorder (PTSD) and major depression.
On 31 July 2018, Dr Sidrak noted that the respondent was performing administration duties at an Arabic school on the weekends.
Dr Sidrak provided a number of medical reports. On 27 March 2018,[19] 31 July 2018,[20] 28 August 2018,[21] and 15 July 2020,[22] Dr Sidrak wrote supporting letters for the purpose of the respondent’s applications for a transfer to another school. In the second of those reports, he provided a history of the incidents involving student behaviour. Dr Sidrak was of the opinion that those incidents, which were mentioned in prior consultations in the context of how the school managed those incidents, were a cause of the respondent’s psychological injury, which aggravated the harassment and bullying in the workplace and became the main source of the respondent’s injury. In the third of those reports, Dr Sidrak reiterated that the respondent suffered psychological stressors as a result of reported and documented student behaviour during 2015 and 2016, which symptoms were compounded by school workplace bullying.
[19] ARD, p 190.
[20] ARD, p 191.
[21] ARD, p 192.
[22] AALD dated 27 July 2020, p 1.
Dr Sidrak provided a further report dated 28 November 2018[23] in support of the respondent’s claim, directed to the respondent’s legal representatives. Dr Sidrak confirmed that the respondent first consulted him about his injury on 22 May 2017 and described symptoms of anxiety and depression, as well as aggressive and abusive student behaviour which was poorly managed by the school. Dr Sidrak advised that both Ms Dover and the respondent’s treating psychiatrist, Dr Raiz Ismail, diagnosed the respondent as suffering major depression and PTSD. Dr Sidrak considered that the respondent could not work in the capacity of head teacher but would likely be able to perform limited work in another school environment.
[23] ARD, pp 220–221.
A bundle of certificates of capacity provided by Dr Sidrak were annexed to the ARD, covering the period from 23 May 2017 to 1 May 2019.[24] Dr Sidrak certified that the respondent had no capacity for work during that period. He provided a diagnosis of major depression but from 1 August 2017 added PTSD as an additional diagnosis. Dr Sidrak initially entered the date of injury as 22 May 2017 but then stated the date of injury as 9 November 2015, together with various other dates, in certificates dating from 19 July 2018.
[24] ARD, pp 73–189.

Ms Hanan Dover, clinical and forensic psychologist

Ms Dover provided a number of reports in relation to the treatment provided by her to the respondent. In a report dated 13 July 2017, directed to “Whom It May Concern,” Ms Dover, confirmed that the respondent was referred to her at PsychCentral by Dr Sidrak for treatment in respect of complaints of bullying and harassment in the workplace.[25] Ms Dover confirmed that the respondent had attended for six sessions of therapy and, on the basis of the assessments, his psychological picture satisfied the diagnosis of major depressive disorder and PTSD. Ms Dover noted the diagnoses of anxiety and adjustment disorder provided by Dr Sidrak and major depressive disorder opined by Dr Ismail. Ms Dover indicated that, in her view, the respondent met the diagnosis of PTSD because his symptoms were consistent with hyperarousal, avoidance and hypervigilance. She identified the respondent’s symptoms that supported her conclusion. Ms Dover observed that the symptoms were consistent with the diagnosis despite the absence of an identifiable threat to life.
[25] ARD, pp 292–293.
Ms Dover provided a report at the request of the respondent’s legal representatives dated 26 January 2019.[26] Ms Dover summarised the respondent’s complaints, which included that:
(a)    he had relieved as a deputy principal while the principal was absent, but when the principal returned, his application to continue relieving in that position was refused, without explanation;
(b)    in 2016, he had made reports to the school of student violence and aggression, but no action was initiated by the school;
(c)    he was denied access to training and resources;
(d)    he was subjected to bullying in the workplace in the form of unjustified criticism, intimidation, unreasonable expectations and verbal and physical aggression, and
(e)    documents were falsified and information was withheld from him.
[26] ARD, pp 42–47.
Ms Dover observed that, after the respondent lodged a claim for compensation, his memories of the workplace traumas involving student behaviour re-surfaced. She further observed that, outside of the school environment, the respondent was socially functioning and active and was happy, healthy, and satisfied prior to the workplace issues.
Ms Dover maintained her diagnosis of major depression and PTSD. She provided an opinion in relation to the respondent’s capacity for work and future prognosis.
Ms Dover provided a further report dated 26 July 2020 at the request of the respondent’s legal representatives.[27] Ms Dover said that, on the basis of the history provided to her, prior to the workplace issues, the respondent was a highly functional professional with excellent experience in teaching and leadership, including at an international level. Ms Dover was critical of Dr Martin’s opinion on the basis of Dr Martin not having before him adequate documentation in order to make a comprehensive assessment of the respondent’s psychological injury. Ms Dover was of the view that the extensive documentation overwhelmingly supported the respondent’s claim of psychological injury. Ms Dover cited the various stressors reported to her and expressed the view that those stressors would suggest that the injury was not merely associated with performance appraisal, discipline, transfer or promotion.
[27] AALD dated 27 July 2020, pp 5–13.
Ms Dover reported that the respondent complained of new stressors in his post-injury alternate employment at a new school when he encountered the careers advisor at the school. Ms Dover observed that she was mindful of the extensive documentation in the matter and the matter’s complexity, but said that there were three key documents that were relevant, namely:
(a)    the minutes of the meeting with the principal on 27 February 2017;
(b)    the clinical notes from Davidson Trahaire Corpsych dated 28 February 2017, and
(c)    an email from the respondent to the principal on 18 May 2017.
Ms Dover confirmed that, during the therapy sessions, the respondent explicitly recounted episodes of exposure to aggressive and threatening students which occurred during 2015 and 2016, that were documented and reported. She added that the respondent also provided accounts of interpersonal conflict with the principal and the deputy principal, who engaged in behaviour, perceived by him to be workplace intimidation, harassment, bullying and victimisation, and which caused the respondent to experience heightened anxiety. Ms Dover considered that both the incidents involving the students and the behaviour of the principal and the deputy principal contributed to the respondent’s psychological injury.
Ms Dover was also of the view that the respondent’s beliefs that he had not been provided with adequate training and his workload was excessive, as well as the conflict between the respondent and the careers advisor, which were not addressed, were also major contributing factors to the respondent’s psychological condition. Ms Dover added that, although the respondent conceded that the principal raised issues about his conduct at the meeting on 23 May 2017, the objective evidence suggested that the meeting was not a major contributing factor to the respondent’s psychological condition.

Dr Raiz Ismail, consultant psychiatrist

The respondent was referred to Dr Raiz Ismail by Dr Sidrak. Dr Ismail reported to Dr Sidrak in relation to consultations between 17 October 2017 and 16 November 2018.[28] Dr Ismail recorded that the respondent suffered from insomnia, nightmares and flashbacks in relation to “the traumatic experiences in his work place.”[29] Dr Ismail described the respondent’s claim as bullying and harassment from the principal.[30] Relevantly, following the consultation on 7 August 2018, Dr Ismail recorded:
“He described that he was traumatised by many incidents and he brought evidences from the school data base as they had been regularly recorded in the data base as per the school policy. He complained about this [sic] traumatic experiences with difficult students many times in the previous consultations with me.”[31]
[28] ARD, pp 222–231.
[29] ARD, p 222.
[30] ARD, p 224.
[31] ARD, p 227.

Dr Robert Gertler, consultant psychiatrist

The respondent’s legal representatives requested Dr Robert Gertler to examine the respondent and provide a medico-legal report. He provided a report dated 27 November 2018.[32]
[32] ARD, pp 464–470.
Dr Gertler recorded a history of the incidents involving student behaviour, the first of which occurred at the end of 2015, with further incidents occurring involving students during 2016 and the initial offending student returning to the respondent’s class following a short suspension. Dr Gertler recorded that the respondent asserted that the principal was unsupportive of him and his subsequent applications for transfer to another school. Dr Gertler referred to the respondent alleging that the principal, and also the deputy principal, treated him in a bullying manner and the principal was vindictive and angry towards him. Dr Gertler noted that a further stressor was the requirement to share an office with the careers advisor. He recorded the respondent’s presenting complaints, which included disturbed sleep and occasional nightmares about the respondent’s experiences at the school. Dr Gertler noted there was no prior history of psychological symptoms.
Dr Gertler expressed the opinion that the respondent developed symptoms of moderate anxiety and depression as a result of bullying and harassment while at the school where he taught. Dr Gertler diagnosed a chronic adjustment disorder with depressed mood and provided his opinion that the condition was caused by the general nature and conditions of employment, as described, in particular between 2015 and early 2017. He considered that the respondent was fit to attempt a graded return to work at a different school and assessed the respondent’s whole person impairment as 17%.
Dr Gertler was asked to provide a further report in response to whether the respondent’s psychological injury was wholly or predominantly caused by action taken by or on behalf of the appellant in respect of discipline, performance appraisal, transfer or promotion, taking into account the history of the interactions between the respondent and the careers advisor. Dr Gertler was referred in particular to the history recorded by Dr Adam Martin, psychiatrist, qualified by the appellant.
Dr Gertler responded on 8 July 2020.[33] He advised that the history he obtained at the consultation with the respondent was that there were instances of bullying and harassment which the respondent experienced prior to the meeting in May 2017, which caused the respondent to experience increased stress and seek counselling. Dr Gertler observed that the harassment and bullying was not limited to the behaviour of the careers advisor, but included the principal’s hostile manner to the respondent and her unwillingness to support his transfer to another school. Dr Gertler referred to the meeting in May 2017, which was about the respondent’s conduct, as causing the respondent further distress and led to the respondent ceasing work and seeking formal psychological treatment.
[33] AALD dated 27 July 2020, pp 3–4.
Dr Gertler disagreed with Dr Martin’s view that the real stressor was the negative performance appraisal given by the principal.

Dr Adam Martin, forensic psychiatrist

Dr Adam Martin was qualified by the appellant to provide an opinion in respect of the respondent’s claim. He provided a number of reports.
In his report dated 25 August 2017,[34] Dr Martin observed that the respondent referred to several instances recorded in a 70 page document, which the respondent described to him as instances of “bullying.” Dr Martin summarised those incidents as involving the principal and other school executives treating the respondent unfairly, failing to provide support, sabotaging his career prospects by giving negative and dishonest references, giving him inadequate training, which was frequently interrupted, and shouting at and abusing him.
[34] Reply, pp 6–12.
Dr Martin noted that the respondent’s last day of work was 23 May 2017, following a distressing meeting. Dr Martin described the respondent’s complaints of symptoms, which the respondent indicated prevented him from returning to work. Dr Martin took a detailed account of the respondent’s past history and mental state. He diagnosed the respondent as suffering from an adjustment disorder with depressed and anxious mood, which appeared to be work related in the context of “industrial and interpersonal conflict within the workplace.”[35] Dr Martin observed that, if it was accepted that the respondent had experienced workplace bullying rather than distress arising from appropriate workplace management, then the reported mechanism of injury would appear to be the main contributing factor. Dr Martin considered that the work duties of themselves did not lead to the injury, but that the distress and isolation arising from conflict, as well as the purported unfair treatment, resulted in the development of the adjustment disorder.
[35] Reply, p 9.
Dr Martin provided a supplementary report dated 25 May 2018, addressing specific questions raised by the appellant’s legal representatives.[36] He disagreed with the diagnosis of PTSD, opining that it was not a valid diagnosis because such a diagnosis required the respondent to be exposed to a life threatening event. Dr Martin noted that the respondent clearly suffered anger as a result of his sense of being treated unfairly and confirmed his earlier opinion that the respondent suffered from an adjustment disorder.
[36] Reply pp 14–17.
Dr Martin indicated that it was very difficult to identify when and where the assumed psychological injury occurred but, noting the extensive documentation which he described as difficult to summarise, the respondent’s account of multiple incidents of perceived unfair treatment appeared to have been events occurring from 2016. Dr Martin conceded that, having only seen the respondent on one occasion, he was probably not best placed to understand the voluminous documentation. Dr Martin said, however, that it was clear from the respondent’s account that the precipitator of his injury was his perception of the unfair treatment at the hands of the school executive.
Dr Martin considered that the factors identified by the appellant’s legal representatives as matters within s 11A(1) of the 1987 Act were highly relevant to the development of the adjustment disorder, namely performance appraisal and failure to achieve a transfer. Dr Martin said that the respondent’s claim of bullying and unfair treatment did not seem to be objectively supported by the evidence and that the respondent’s distress probably did arise from the s 11A(1) factors identified.
Dr Martin re-examined the respondent and reported to the appellant’s legal representatives on 15 November 2018, following provision of extensive further documentation, and an examination of the respondent on 8 November 2018.[37] On this occasion, the history provided to Dr Martin included the history of student threats and aggression in late 2015 and in 2016, which behaviour the respondent considered was not adequately addressed by the school executive. Dr Martin said that the respondent attributed the development of distress, poor sleep, anxiety, panic attacks and chest pain to these events, which manifested in late 2015. Dr Martin also noted that the respondent repeatedly referred to his perception of a lack of support in the workplace. Dr Martin recorded the respondent’s complaint of symptoms, which included experiencing nightmares, and observed that:
“[the respondent’s] expressed beliefs around the workplace had a persecutory flavour. He was alert and orientated. He was perseverative on the industrial grievance to the point that it affected his concentration and ability to engage in a rational conversation, in my opinion. Formal neuro-cognitive examination was not undertaken. He was not severely thought disordered. In my view, he has impaired insight in relation to the nature of the problems.[38]
[37] Reply, pp 18–26.
[38] Reply, p 21.
Dr Martin found the respondent to be extremely distressed with persistent anxiety and depression. He noted that the respondent claimed that he suffered from PTSD as a result of the student behaviour. Dr Martin observed that the respondent continued to work for a lengthy period after those incidents and, did not seek immediate psychological help and did not make a claim in respect of those incidents for two years. He concluded that the way in which the respondent described the aggressive student behaviour did not portray events that would likely cause an enduring psychiatric illness, and rather that the respondent was fixated on his perception of being treated unfairly by the school executive. Dr Martin further concluded that the nature of the incidents of student behaviour was not severe enough to warrant a diagnosis of PTSD. He opined that those incidents did not cause an aggravation, acceleration, exacerbation or deterioration of the respondent’s psychiatric diagnosis, in circumstances where the respondent did not report a psychological illness for a long time after their occurrence, and did report such symptoms in the context of his industrial issues.
Dr Martin found the respondent was likely suffering from a major depressive disorder, rather than an adjustment disorder, because of the respondent’s significantly severe mental impairment, with the main precipitant being his perception of being unfairly treated in the workplace. Dr Martin confirmed that, in his view, the factors relevant to s 11A of the 1987 Act, which he identified in his report dated 25 May 2018, were relevant.
Dr Martin was of the view that the respondent was not fit for his pre-injury duties because of his overwhelming fixation with his grievances but noted that the respondent was continuing to work on Saturdays at a different school.
At the request of the appellant, Dr Martin examined the respondent again on 7 February 2019 and provided a report dated 15 February 2019.[39] He addressed the respondent’s need for treatment and his capacity for work and assessed the respondent as suffering from a 15% whole person impairment. In assessing the respondent’s mental state, he observed:
“In thought content, he expressed grievance, as before, around industrial situations and his perception of having been bullied and generally treated unfairly. He expressed anger at not being believed, and having had liability declined. Themes of expressed loss were evident.”[40]
[39] Reply, pp 28–34.
[40] Reply, p 30.
Dr Martin was asked to address yet further material that had been adduced into evidence which included the report of Ms Dover dated 26 January 2019. In his report dated 8 August 2019,[41] Dr Martin noted that Ms Dover considered that the grievance about interactions with the school executive, which she identified as bullying, was the major stressor, which was a conclusion consistent with the material provided, particularly the clinical note taken on 4 April 2017. Dr Martin indicated that he agreed with Ms Dover in that regard but, despite the respondent having some symptoms that would be consistent with PTSD, he did not agree that the respondent’s presentation met the diagnostic criteria for a diagnosis of PTSD.
[41] AALD dated 20 August 2019, pp 1–3.
Dr Martin reviewed the clinical notes made available to him and observed that the information was fairly consistent with the respondent’s complaints made to him and he did not wish to change his opinion on causation expressed in his earlier reports. Dr Martin referred to the inconsistency between the respondent’s complaints and the evidence from the appellant about the interactions complained of, and concluded that the s 11A(1) factors identified by him in his earlier reports were relevant, but their relevance was an industrial/ legal issue. He confirmed his opinion expressed earlier in relation to causation.
The appellant’s legal representatives requested a further report from Dr Martin in order to clarify his earlier reports.[42] Dr Martin confirmed that his reference to the “school executive” included the principal, deputy principal and the careers advisor, who the respondent alleged caused him distress. Dr Martin again referred to the extensive and minutely detailed complaints which made it difficult to ascertain what exactly the respondent perceived to be his persecution.[43]
[42] AALD dated 6 July 2020, pp 7–10.
[43] Report dated 15 May 2020.
Dr Martin referred to a summary of the allegations against the careers advisor prepared by the appellant. He was of the view that, taking into account those allegations, he considered that the real stressor was the negative performance appraisal, which the respondent considered bullying and unfair, and the predominant cause of the injury was the action taken, or proposed to be taken, by or on behalf of the appellant, in respect of discipline, performance appraisal, promotion and transfer.

The Davidson Trahaire Corpsych initial assessment report

Confidential counselling was provided to the respondent by a psychologist from the Davidson Trahaire Corpsych organisation under the appellant’s EAP system. The initial assessment report, consisting of notes taken over three sessions of counselling, was in evidence.[44]
[44] ARD, pp 517–520.
On 28 February 2017, the respondent complained of escalating workplace bullying and harassment by the principal and the deputy principal, and abuse and aggression from students. The respondent particularly complained of the meeting with the principal and deputy principal on 27 February 2017, when he said he was threatened with being put on a performance program and that he felt unsupported in relation to the incidents of student behaviour.
The psychologist recorded the respondent’s symptoms of high anxiety, causing vomiting (particularly if the respondent was travelling to work), sleep disturbance, panic attacks, raised blood pressure and reduced self-confidence. The psychologist noted that the respondent’s relationships were impacted, and he was no longer engaging in his usual activities. The psychologist also noted that the respondent did not want to lodge a workers compensation claim. The consultations that followed also briefly recorded the respondent’s difficulties with obtaining a transfer and his wish to be able to nominate the director, rather than the principal, as his referee.

The Senior Arbitrator pointed to Dr Sidrak’s confirmation that those events caused the respondent to feel traumatised, anxious and stressed. She noted the respondent’s submission that Dr Ismail also referred to the respondent’s complaint of student aggression, which complaint was made before the respondent’s claim for compensation was denied. Additionally, the Senior Arbitrator observed that the deputy principal’s account of the respondent’s conduct in the incident on 9 February 2016 may have been consistent with the respondent experiencing a heightened response in an escalating situation.
The Senior Arbitrator’s concerns about Dr Martin dismissing student behaviour as a causative factor were that Dr Martin relied upon there being no contemporaneous complaint and he did not take into account that the respondent had complained about those incidents to the first counsellor he saw. The Senior Arbitrator referred to Snell DP’s observations in Hamad that a series of events can have a cumulative effect, which was consistent with the evidence of Dr Sidrak and Dr Ismail. She said that Dr Martin failed to give proper consideration to that evidence and instead looked at the student behaviour in a “prism.”
The Senior Arbitrator reviewed the evidence as to the respondent’s workload. She noted that:
(a)    the respondent forwarded a lengthy complaint to the director on 25 November 2016 about his general workload and the extra workload created by the faculty review. She also noted that, in the same correspondence, he complained of lack of support;
(b)    the respondent complained to Dr Nguyen of overwork on 18 November 2016, which was at about the time of the faculty review;
(c)    in the meeting on 2 March 2017, the deputy principal discussed with the respondent his difficulties in coping with the workload and suggested a strategy to address the issue, and
(d)    in his statement evidence, the respondent asserted that in Term 4 of 2016, he was feeling overwhelmed and exhausted as a result of the faculty review.
Taking into account that evidence, the Senior Arbitrator accepted that, in forming his opinion, Dr Martin had “completely failed to consider the effects of [the respondent’s] perception of work overload.”[50]
[50] Reasons, [201].
The Senior Arbitrator referred to the respondent’s reliance upon the stressful nature of the relationship between him and the careers adviser and that the respondent alleged that the conflict was a cause of his psychological injury. The Senior Arbitrator observed that the respondent also alleged he was bullied by the careers adviser, noting that the respondent was the careers adviser’s supervisor and that they shared an office. She noted that the careers adviser stated that their relationship deteriorated during 2016 and 2017 and that the careers adviser found the respondent’s manner to be dismissive and rude. The Senior Arbitrator referred to the careers adviser’s complaint that the respondent sent emails described as “hostile” and unprofessional and noted that both the respondent and the careers adviser wished to have their own office.
The Senior Arbitrator expressed her view that Dr Martin did not sufficiently heed the nature of the relationship between the two, and she particularly took into account the fact that the careers adviser was not the respondent’s superior. The Senior Arbitrator concluded that, given the relationship, the interpersonal conflict could not constitute an action by or on behalf of the employer in respect of performance appraisal or discipline. The Senior Arbitrator added that Dr Martin did not sufficiently examine the evidence that went to show that the relationship was deteriorating, the potential effect of which could have been a cause of the respondent’s psychological injury. In that context, the Senior Arbitrator considered that Dr Martin’s opinion that, regardless of that stressor, the real cause of the respondent’s injury was the negative performance appraisal, was cursory and Dr Martin’s opinion was therefore flawed.
The Senior Arbitrator compared that opinion with the opinion of Dr Gertler, who did take into account the interpersonal conflict and the respondent’s evidence that his emotional state was aggravated by that conflict. She noted that Dr Gertler was of the view that the interpersonal conflict was a cause of the injury. She also took note of Dr Martin’s comment that it was difficult to arbitrate between the facts. She concluded that she could not afford weight to the opinion of Dr Martin about the cause of the respondent’s psychological injury.
The Senior Arbitrator concluded that the inadequacy in Dr Martin’s opinion resulted in the appellant being unable to meet its onus of proving that the respondent’s injury was caused, either wholly or predominantly, by reasonable action within the parameters set out in s 11A(1) of the 1987 Act.
There is nothing remarkable about the Senior Arbitrator’s exercise in evaluating the medical evidence and her reasons were logical. It is implicit in her reasoned logic and her conclusions reached that the Senior Arbitrator rejected the opinion of Dr Martin and accepted the respondent’s medical case that the events that fell outside of the ambit of s 11A were causative of the respondent’s psychological injury. It was then incumbent upon the Senior Arbitrator to evaluate whether the matters relied upon by the appellant were causative matters which fell within the ambit of s 11A(1) of the 1987 Act and, in this case, whether those matters which did fall within the context of performance appraisal, discipline or transfer were the predominant cause of the injury.[51]
[51] Gazi, [176].
The appellant asserts that the Senior Arbitrator was required to determine the causal relationship between the events and the injury and to provide reasons for so determining before assessing the weight to be afforded to the opinion of Dr Martin. The appellant relies upon Gazi to support that notion. Gazi does not support the appellant. The passage from the decision partly extracted by the appellant was reproduced in full by the respondent and is quoted at [137] above. In making his observations, Phillips P relied on the judgment of Fitzgerald JA (with Mason P agreeing) in Manly Pacific International Hotel Pty Ltd v Doyle[52] in which his Honour said:
“... the whole or predominant cause of [the worker’s] psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced [the worker’s] condition.”[53]
[52] [1999] NSWCA 465; 19 NSWCCR 181 (Doyle).
[53] Doyle, [8].

The Senior Arbitrator approached her task in a manner consistent with Doyle and Gazi.
The appellant asserts that the Senior Arbitrator was required to make findings as to which matters caused the injury. The appellant contends, however, that it was not open to the Senior Arbitrator to reject the opinion of Dr Martin on the question of causation in relation to the student incidents, excessive workload and interactions with the careers adviser, without first making a positive finding that the incidents were causative. The Senior Arbitrator took the appropriate step of evaluating the medical evidence before rejecting the opinion of Dr Martin. Her rejection of Dr Martin’s opinion was that Dr Martin failed to give proper consideration to matters that fell outside of the ambit of s 11A(1) which were potentially causative, so that his conclusion as to what predominantly caused the injury was flawed.
The appellant submits that the Senior Arbitrator was required to provide proper reasons for rejecting the opinion of Dr Martin. It contends that the Senior Arbitrator failed to give clear reasons as to why she was critical of Dr Martin’s opinion when considering the potential causative factors of student aggression, the conflict with the careers advisor, and the respondent’s workload. The Senior Arbitrator’s reasons for rejecting Dr Martin’s opinion were sufficient to discharge her statutory duty to give reasons.
An arbitrator is required to give reasons for his or her determination. Section 294(2) of the 1998 Act (which is in the same terms as it was prior to the 2020 amendments) requires that when a Certificate of Determination is issued by the Commission, a “brief statement” setting out the Commission’s reasons must be attached. Rule 15.6 of the former Workers Compensation Commission Rules (which are applicable to these proceedings) stated:
“15.6 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include—
(a) the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
In Roncevich v Repatriation Commission,[54] Kirby J said that the Courts should:
“avoid an overly pernickety examination of the reasons”,
and that:
“[t]he focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”
[54] [2005] HCA 40; 222 CLR 115, [64].
In ADCO Constructions Pty Ltd v Ferguson,[55] Deputy President Fleming set out the approach to be taken in assessing the adequacy of reasons. The Deputy President made the following observations:
“The standard by which the ‘adequacy’ of an Arbitrator’s reasons will be determined is relative to the nature and context of both the decision made and the decision-maker. The decision to refuse to allow the filing of a Reply, in the context of the Commission’s informal and expeditious process, does not require lengthy, detailed written reasons. The Commission is not a court (Fuentes v Standard Knitting Mill Pty Limited & Anor [2003] NSWCA 146) and is obliged to act according to equity and good conscience and the demands of the instant case. The purpose of giving reasons is to enable the parties to understand why the decision has been made.”[56]
[55] [2003] NSWWCCPD 21 (Ferguson).
[56] Ferguson, [31].
To ascertain whether the Arbitrator’s reasons are adequate, it is necessary to take into account the whole of the decision. The Arbitrator’s reasons are not required to be lengthy or elaborate.[57] The “real” issue in this case was whether the appellant’s defence to the respondent’s claim for compensation in respect of an accepted work related psychological injury was made out.
[57] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.
In that context, and addressing the conflict between the medical evidence, the Senior Arbitrator gave adequate reasons for preferring the evidence provided by Dr Sidrak, Dr Ismail and the EAP psychologist, as well as Dr Gertler, over that of Dr Martin in respect of whether the student behaviour, the respondent’s workload and the interpersonal conflict were causative of the injury.
It is clear from Hamad and the authorities discussed therein that, in the context of more than one potentially causative event, whether the events were causative of the psychological injury requires medical evidence. It was, therefore, incumbent upon the Senior Arbitrator to determine the weight to be afforded to, and the acceptance or rejection of, medical opinions about causation, before she concluded what was, or was not causative of the injury. Whether events were causative of the injury is a matter for medical opinion. Whether they fall within the parameters of s 11A(1) is a legal question.
The Senior Arbitrator’s conclusions about the medical evidence as to causation are findings of fact. It is well settled that the acceptance or rejection of evidence, the preference of some evidence over the other, and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker, and is a finding of fact.[58] Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.[59] The Senior Arbitrator’s reasons provided a rational, evidence based platform on which to reject the opinion of Dr Martin. The Senior Arbitrator’s ultimate conclusion was that, in circumstances whereby she did not accept the opinion of Dr Martin, there was no satisfactory evidence supporting the appellant’s assertion that the respondent’s psychological injury resulted from reasonable action taken by or on behalf of the appellant and thus, the appellant’s defence to the claim failed.
[58] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Shellharbour City Council v Rigby [2006] NSWCA 308.
[59] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
It is implicit in the Senior Arbitrator’s reasons that she considered that the student behaviour, the perceived excessive workload and the interpersonal conflict, which were not matters that fell within s 11A(1) of the 1987 Act, were causative factors. The Senior Arbitrator’s determination did not, however, turn on those implicit findings. It was accepted that the respondent suffered from a work related psychological injury. Once that was not in issue, it was a matter for the appellant, who bore the onus of proof, to establish its defence under s 11A of the 1987 Act. In the absence of probative evidence to support that defence, and the competing body of opinion that countered the defence, the defence failed. The Senior Arbitrator made that finding, a finding she arrived at with due consideration of the evidence and supported by reasoned explanation.
Accordingly, the appellant has failed to show error on the part of the Senior Arbitrator and this ground of appeal fails.

Ground Two: The Senior Arbitrator erred in law in finding that the respondent was entitled to weekly compensation at the rate of $2,206.25 from 6 July 2018 to 19 November 2019, when that amount exceeded the statutory maximum determined under s 34 of the 1987 Act

The appellant submits that the award of weekly payments at the rate of $2,206.25 exceeds the maximum statutory cap provided for in s 34 of the 1987 Act, and thus, the Senior Arbitrator fell into error in awarding that amount. The respondent submits that s 34 was not raised in either the notice disputing liability or in the appellant’s reply filed in the proceedings. The respondent agrees that, if the Senior Arbitrator is shown to be in error, the maximum statutory amounts set out in the appellant’s table are correct.
The reply filed in these proceedings at Part 4.1 does disclose that the appellant raised the issue that the statutory cap applied to any award of weekly compensation, albeit referring to s 35 of the 1987 Act, rather than the correct section, s 34. The amount awarded by the Senior Arbitrator was, therefore, an error. The Senior Arbitrator was not assisted by the complete absence of submissions from either party in relation to the respondent’s entitlements to weekly compensation. Despite the incorrect statutory reference, I am of the view that the cap on the respondent’s entitlement to compensation was put in issue and the statutory limitation prescribed by s 34 applies in this case.
The respondent’s reliance upon a failure to raise that issue therefore falls away. The respondent’s alternate submission is that his entitlement to weekly payments requires determination. No reasons are put forward as to why that would be the case. The only error identified is that the Senior Arbitrator failed to apply the statutory cap.
Prior to the abolishment of the Workers Compensation Commission, s 294(3) of the 1998 Act provided the then Commission with the power to reconsider its decisions or correct obvious errors. The same power to reconsider vests in the present Commission by virtue of s 57(1) of the 2020 Act. In the usual circumstances, an application to the Senior Arbitrator for either a correction of the error or reconsideration of the order for weekly payments would have been the preferred practice. However, given the decision is the subject of an appeal to a presidential member in any event, and an error in the order is established, the matter is before me. I have the power to correct the error either pursuant to s 352(5) of the 1998 Act, which provides that an appeal to a presidential member 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 requisite error is established, the parties have been heard on the issue, and there is no dispute that the appellant’s schedule of indexed statutory limitations on weekly payments is correct. I accept the appellant’s schedule as to the correct entitlements and determine that the respondent is entitled to weekly payments of compensation pursuant to s 37 of the 1987 Act in accordance with that schedule.
The respondent asserts that he has been “kept out” of his “proper” entitlements for a period of between 15 to 30 months and should be entitled to interest in respect of the outstanding weekly payments. Presumably, the respondent is referring to the entitlements for the period running from the declinature of liability up to the date of the award, given that an order for weekly payments is not stayed by an appeal to a presidential member.
The respondent does not appear to have previously raised a claim for interest, has not particularised such a claim and it was not an issue before the Senior Arbitrator. Leave is required before a new issue can be raised on appeal and it is only in exceptional circumstances that a party will be allowed to raise on appeal a new argument which he or she failed to put during the hearing.[60] The respondent has made no submission as to why leave ought to be granted to hear that application and the appellant has not had the opportunity to put its case.
[60] Coulton v Holcombe [1986] HCA 33; 162 CLR 1, [7]–[8], per Gibbs CJ, Wilson, Brennan and Dawson JJ; Smits v Roach [2006] HCA 36; 227 CLR 423, [46]; Mamo v Surace [2014] NSWCA 58, [75].
I decline to grant leave to the respondent to raise on appeal a claim for interest in respect of the weekly payments of compensation.

DECISION

Paragraph 3 of the Senior Arbitrator’s Certificate of Determination dated 27 November 2020 is revoked.
The appellant is to pay the respondent weekly payments of compensation as follows:
(a)    $2,128.50 from 1 April 2018 to 30 September 2018;
(b)    $2,145.30 from 1 October 2018 to 31 March 2019;
(c)    $2,177.40 from 1 April 2019 to 30 September 2019, and
(d)    $2,195.70 from 1 October 2019 to 19 November 2019.
The Senior Arbitrator’s Certificate of Determination is otherwise confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

13 July 2021

[2021] NSWPICPD 21

13 July 2021

Key Legal Topics

Areas of Law

Workers Compensation Law

Legal Concepts

Causation

Compensatory Damages

Statutory Interpretation