State of New South Wales (Hunter New England Local Health District) v BHU - [2025] NSWPICPD 52

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	State of New South Wales (Hunter New England Local Health District) v BHU [2025] NSWPICPD 52
APPELLANT:	State of New South Wales (Hunter New England Local Health District)
RESPONDENT:	BHU
INSURER:	QBE TMF
FILE NUMBER:	A1-W1147/24
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	16 July 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination is revoked. 2. The matter is remitted for allocation and rehearing.
CATCHWORDS:	WORKERS COMPENSATION – section 11A of the Workers Compensation Act 1987 – failure of Member to engage with lay and medical evidence to show causative determination of injury – section 4(b)(ii) of the 1987 Act – adequacy of reasons – rule 78 of the Personal Injury Commission Rules 2021
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms N Compton, counsel
Hicksons Lawyers
Respondent:
Ms E Grotte, counsel
Walker Law Group
DECISION UNDER APPEAL:	BHU v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 506
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	12 September 2024

INTRODUCTION

This is an appeal from a determination of the Personal Injury Commission (Commission) made 12 September 2024.
The respondent worked as a sterilisation technician for the appellant, Hunter New England Local Health District. In the proceedings she sought weekly compensation and medical expenses as a result of an alleged psychological injury sustained in the course of employment with the appellant. The deemed date of injury was 18 September 2023.
The Certificate of Determination issued by the Commission provided as follows:
“1.     The [respondent] suffered an injury in the course of her employment with the [appellant] with a deemed date of injury of 18 September 2023.
2.     The [respondent’s] injury was not wholly or predominantly caused by the reasonable actions of the [appellant] with respect to discipline.
3.     As a result of the [respondent’s] injury, she has suffered and continues to suffer total incapacity for employment from 18 September 2023 to date and continuing.
4.     At the time of injury, the [respondent’s] preinjury average weekly earnings were $945.74 per week, subject to periodic indexation.
5.     The [appellant] is to pay the [respondent] weekly compensation as follows:
(a)pursuant to s 36 of the Workers Compensation Act1987, from 18September 2023 to 30 September 2023 at the rate of $898.46 per week;
(b)pursuant to s 36 of the Workers Compensation Act1987, from 1 October 2023 to 18 December 2023 at the rate of $921.50;
(c)pursuant to s 37 of the Workers Compensation Act1987, at the rate of $774 per week from 19 December 2023 to 31 March 2023 [sic, 2024], and
(d)pursuant to s 37 of the Workers Compensation Act1987, from 1 April 2024 to date and continuing, at the rate of $788 per week.
6. The [appellant] is to pay the [respondent’s] reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.
7.     This decision is to be deidentified.”
The appellant relies on three grounds of appeal, namely:
(a) “The Member failed to provide adequate reasons regarding his review of the evidence and the rejection of the appellant’s evidence.” (Ground 1)
(b) “The Member erred in law in his conclusions with respect to injury within the [meaning] of s 4(b)(ii) of the Act (paragraph [23] and [32]) and [in] addition the Member erred in law in his finding as to factual causation (paragraph [64]).” (Ground 2)
(c) “The Member erred in his conclusions regarding s 11A, that the injury was not wholly or [predominantly] caused by the reasonable actions of the appellant failing to [consider] whether the actions of the appellant were [reasonable] – the second limb of s 11A.” (Ground 3)
For the reasons that follow, the appeal is upheld and the matter remitted for redetermination by an alternative member of the Commission.

BACKGROUND FACTS

The Member noted that many of the matters which gave rise to the claim in fact occurred in 2022 and that the parties made no dispute as to the deemed date of injury.
It was agreed that the respondent had previously suffered from post-traumatic stress disorder, panic disorder and androphobia.
The issues for determination by the Member were as follows:
(a)    whether the respondent suffered a work related psychological injury;
(b)    if so, whether that injury was wholly or predominantly caused by the appellant’s reasonable actions with regards to discipline, and
(c)    the degree of the respondent’s incapacity for employment.
The Member resolved each of those issues in favour of the respondent and entered the award set forth in the Certificate of Determination.

FINDINGS AND REASONS OF THE MEMBER

On the issue of injury, the Member noted that the respondent alleged a number of incidents in 2022 and 2023 were the cause of her injury.
The first occurred on 28 February 2022 when the respondent was informed by her co-worker, Nathaniel Campbell, that someone had made a complaint against her for working under the influence of either alcohol or drugs and that he, Mr Campbell, had been asked by Ms Megan Ransom, an education officer, to watch the respondent for signs of intoxication.
The Member accepted Mr Campbell’s statement evidence.
On 1 March 2022 the respondent telephoned her manager, Sue Ison, to say that she was upset by her colleagues being asked to monitor her rather than being approached by management directly. Ms Ison called Mr Campbell to a meeting. “Ms Ison then proceeded to inform him of a number of alleged incidents and allegations raised against the [respondent], which will be detailed further in these reasons in the discussion surrounding the defence under s 11A of the Workers Compensation Act 1988 (the 1987 Act).”[1]
[1] BHU v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 506 (reasons), [15].
On 23 March 2022 the respondent received a letter setting out various allegations against her “including but not limited to allegations she had stolen the [appellant’s] property together with medical supplies for the purposes of selling them for financial gain. The full terms of the letter and the allegations made against the [respondent] are dealt with more fulsomely in the discussions surrounding the defence pursuant to s 11A.”[2]
[2] Reasons, [16].
In March 2022 the respondent alleged that Ms Maytom singled her out as being lazy and not carrying out her duties whilst she was waiting for a computer to become available.
In June/July 2022 after “lengthy” investigation the respondent was cleared of any wrongdoing. However an allegation that she had claimed for excess time at work was substantiated. No sanction was imposed.
During the investigation the respondent was required to work day shifts instead of her usual night shift. “Her uncontested evidence [was that] this heightened her symptoms of androphobia, particularly as she had to work in the presence of a number of males with whom she was not familiar.”[3]
[3] Reasons, [19].
On 20 June 2022, five tradesmen arrived and were working in the respondent’s area.
In January 2023 the respondent alleged Ms Maytom complained that the music the respondent was playing was too loud. “Ms Maytom made a formal complaint about the music instead of simply asking the [respondent] to turn it down.”
On 13 September 2023 a courier arrived at the workplace to make a delivery. The leading hand was not present so the respondent went to accept the delivery. When she returned to the room the respondent alleges that Ms Maytom was talking to Ms Bannerman about the respondent. “Ms Bannerman later told the [respondent] Ms Maytom had said the [respondent] was acting suspiciously, despite Ms Bannerman having told Ms Maytom the [respondent] had left the work area to take the delivery.
The Member said:
“22. According to Ms Bannerman, Ms Maytom apparently asked Ms Bannerman whether the [respondent] leaves the department frequently during the course of a shift. It is this incident which the [respondent] alleges triggered memories of the 2022 accusations and conduct towards her and led to her condition worsening to the point where she could no longer work.
23. The matters which the [respondent] says gave rise to the aggravation of her underlying condition have not been repeated at length in this portion of these reasons. They will be dealt with more fulsomely when addressing the question of the defence under s 11A. However, the lay and medical evidence in this matter is, in my view, overwhelming. It clearly demonstrates the [respondent] suffered an injury in the nature of an aggravation to her underlying condition. In so finding, I have had regard to the lay and medical evidence in addressing the cause of the aggravation, not the underlying condition. This approach is consistent with the line of authority stretching back to the High Court’s decision in Federal Broom Company Ltd v Semlitch (1964) 110 CLR 626 (Semlitch).”
The Member refers to the records of the general practitioner, Dr Ng, as showing a consistent history of deterioration of the respondent’s condition. The Member observed that “[this] view is also supported by the [respondent’s] treating specialists and medico-legal opinion, including that of the [appellant’s] own independent medical examiner (IME) Dr Mysore.”[4]
[4] Reasons, [24].
The Member said this:
“In his report, Dr Mysore makes it clear that the incidents in the course of the [respondent’s] employment were the cause of the aggravation to her condition. Indeed, there is no lay or medical evidence put before the Commission which establishes any alternative cause of the deterioration in the [respondent’s] condition other than the events in her workplace.”[5]
[5] Reasons, [25].
After referring to cases which follow Semlitch[6] the Member said:
“Although the [appellant] argued a number of the [respondent’s] recollections of events said to have caused her aggravation were inaccurate, I have no difficulty accepting the events of which she complained were real. For example, even if the [appellant] had not asked the [respondent’s] co-workers to monitor her for signs of intoxication, there is no question she was informed by Mr Campbell that this was the case. As such, this event, to the extent it was causative of the [respondent’s] deterioration, was plainly a real one.”[7]
[6] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71; Cant v Catholic Schools Office [2000] NSWCC 37; Australian Conveyor Engineering Pty Limited v Mecha Engineering Pty Limited (1998) 45 NSWLR 606.
[7] Reasons, [27].
The Member addressed the requirement that the employment be the main contributing factor to the psychological injury. He said:
“As noted, in this case, there is no suggestion that anything other than the incidents which took place in the course of the [respondent’s] employment were causative of her injury. The medical and lay evidence in support of that proposition is overwhelming, and I accept it.
Accordingly, there will be a finding that the [respondent] suffered an injury by way of aggravation of an underlying psychological condition in the course of her employment with the [appellant], as alleged.”[8]
[8] Reasons, [31]–[32].
Under the heading “The defence under s 11A” the Member surveyed a number of relevant cases, namely, Pirie v Franklins Limited,[9] Smith v Roads and Traffic Authority (NSW),[10] Kooragang Cement Pty Limited v Bates[11] and Hamad v Q Catering Limited.[12]
[9] [2001] NSWCC 167; 22 NSWCCR 346.
[10] [2008] NSWWCCPD 130.
[11] (1994) 35 NSWLR 452.
[12] [2017] NSWWCCPD 6 (Hamad).
He said:
“The effect of the decision in Hamad is that reliance on factual material alone will not always be sufficient to make out a s 11A defence. Where factual evidence is adequate, it is often in cases where there is an allegation of a single event which has given rise to psychological injury. That is not this case. In any event, the [appellant] does rely on IME evidence in asserting the disciplinary matters upon which it relies [were the] whole or predominant cause of the [respondent’s] injury.”[13]
[13] Reasons, [38].
After referring to Irwin v Director General of School Education,[14] Ivanisevic v Laudet Pty Limited[15] and Commissioner of Police v Minahan[16] to the effect that the test of reasonableness is objective, the Member directed himself as to the test under s 11A as follows:
“As noted, the test under s 11A, is a two-step one. In relation to the ‘whole or predominant’ element, it is important to distinguish between conduct which is either in the nature of discipline or proposed discipline and that which is ancillary to it or to the circumstances surrounding it.”[17]
[14] Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported (Irwin).
[15] Compensation Court of NSW, Truss CCJ, 24 November 1998, unreported.
[16] [2003] NSWCA 239.
[17] Reasons, [45].
The Member considered the issue of reasonableness first. He said that the respondent was first accused of serious, indeed criminal, misconduct on 23 March 2022 by a letter from the appellant outlining the allegations.
The Member quoted the letter containing the allegations in full.
The respondent was cleared of any wrongdoing in relation to the illegal supply of hospital property to other persons by July of 2022. She was found to have erroneously completed a timesheet and claimed extra hours. There was no disciplinary action taken against her as a result of that finding.
The Member said:
“The difficulty with the [appellant’s] position in this matter is it asserted the [respondent] was essentially selling narcotics for financial gain, and did so on the basis of, at least in part, the false assumption one of the persons arrested in police raids was the [respondent’s] father. As the [respondent] noted in her statement, the [appellant] had access to her personnel records which showed the person named as one of the accused was in fact not her father. Additionally, the allegation made against the [respondent] that she was ‘identified as a link between two properties and [worked] for NSW Health’ was not substantiated.”[18]
[18] Reasons, [52].
The Member said that the respondent had been provided with photographs of the items allegedly seized in the police raids less than 24 hours before her disciplinary meeting. He said that the appellant’s process for investigating misconduct required that the respondent be given “reasonable notice”. He thought this would be “typically 48 hours”.
The Member referred to an email from Sarah Morrison dated May 2022. He said the email asserted that the respondent had attended the properties from which the goods had been seized and that, further, the respondent had collected one of the accused from the police station and drove him back to his house when he was granted bail.
The Member said:
“56.   The difficulty with the [appellant’s] position is there seems to have been an attitude taken to the [respondent] that she was guilty by association. As noted, the police at no time interviewed her, and the [appellant] does not suggest a family member of hers was one of the accused whose residences were raided. Moreover, notwithstanding the [respondent] was never interviewed by police, the [appellant] took until July of 2022 to make its findings in relation to the police matters, at which time the [respondent] was cleared.
57.    Reasonableness must include the time taken in investigating allegations of misconduct. In this matter, notwithstanding an absence of police action against [her] … that investigation took some 12 weeks. During that period, the [respondent] was required to work on day shifts rather than her preferred night shifts and was also subjected to monitoring by co-workers while the investigation took place.
58.    In my view, the evidence discloses a conflation by the [appellant] of the police matters with third party evidence said to have been provided to it of the [respondent] being seen in a distressed state outside of the work place while still dressed in her work uniform and the suggestion she may have been working while under the influence of drugs or alcohol. That is, in circumstances where the [respondent’s] pre-existing conditions were well known to the [appellant], she ceased being treated by it with compassion and was instead as one suspected of criminal conduct.
59.    That suspicion is underlined by the [appellant] asking the [respondent’s] unqualified co-workers to monitor her for signs of intoxication in the workplace instead of asking her to take a drug or alcohol test. The [appellant’s] conduct in my opinion plainly breached the [respondent’s] privacy and was inappropriate. It is not for coworkers who are unqualified in matters of drug and alcohol practice to be asked to essentially police a colleague.”
At paragraph [60], the Member noted there was no evidence provided by the appellant as to how it was alleged that the respondent, as a sterilisation technician, had access to narcotics. He regarded this as an important matter when considering whether it was appropriate to raise allegations against the respondent. Further, he thought it was significant that the allegations were maintained “for so long, absent any further evidence”.
In addition, the Member said:
“once it became apparent that the accused who said all of the hospital property belonged to his daughter was not the father of the [respondent], it would have been reasonable in the circumstances to drop the allegations against her forthwith. It is a disturbing attitude to allege someone is guilty of theft and in dealing narcotics because they have attended a residence at which someone who was later arrested resided.”[19]
[19] Reasons, [61].
The Member concluded:
“62. In the circumstances, even if the disciplinary action taken against the [respondent] was said to be the whole or predominant cause of the aggravation injury, it was not, in my view, reasonable.
63. In any event, however, in my view, the cause of the aggravation of the [respondent’s] condition was multifactorial. There is no question the allegations against the [respondent] were disciplinary in nature, however, there was other conduct which could not be said to be so. For example, placing a worker with the [respondent’s] pre-existing issues on shifts where she would be exposed to contact with strange men cannot, in my opinion, be said to be conduct in the nature of discipline. Nor in my opinion is the demeaning conduct of having coworkers monitor and attempt to assess the sobriety of the [respondent].”
Furthermore, the Member reasoned the event which culminated in the respondent ceasing work in September of 2023 was not disciplinary in nature.
The Member concluded:
“65. In my view, it is the entirety of the matters with which the [respondent] experienced difficulties in the workplace which caused the aggravation to her injury, and accordingly, I do not find that the action taken by the [appellant] was the whole or predominant cause of the [respondent’s] injury.
66. For these reasons, the defence pursuant to s 11A will fail.”
On the question of incapacity the Member said this:
“68.   Dr Mysore then considered the [respondent] could return to work ‘in a graduated manner after her colleagues had been given training in workplace expectations and behaviours’. Dr Mysore indicated such an approach would reflect the extent of the [respondent’s] current capacity, considering the effects of the alleged injury.
69.    The difficulty with this approach relied on by the [appellant] is that it is aspirational. It refers to a number of conditions precedent which would be necessary before the [respondent] could return to work, and there is no suggestion those conditions have been satisfied.
70.    As such, Dr Mysore’s view is not, in my view, persuasive. Instead, I am persuaded by the views of the [respondent’s] treating doctors and IME to the effect that she was and remains totally incapacitated for employment. That incapacity is, in my view, ongoing consistent with the Certificates of Capacity provided in the matter.
…
72.    In the circumstances, I am satisfied that the medical evidence establishes the [respondent] is and has been since the date of the deemed injury, totally incapacitated for employment.”

The Member then dealt with the dispute as to s 60 expenses by saying that the s 60 claim should follow the event, he having determined liability in favour of the respondent.

PROCEDURAL MATTERS

Time

The respondent does not dispute that the appeal has been brought within time and in accordance with s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Threshold

The respondent does not dispute that the monetary threshold requirements set out in s 352(3) of the 1998 Act have been met.

On the papers

The appellant and the respondent agree that the appeal can be determined on the papers. Section 52(3) of the Personal Injury Commission Act 2020, together with Procedural Directions PIC2 and WC3, provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied in this matter and propose to determine the matter on the papers without holding any conference or formal hearing.

Nature of the appeal

The appellate jurisdiction conferred by s 352(5) of the 1998 Act provides as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

DISCUSSION

Ground 1 – The Member failed to provide adequate reasons regarding his review of the evidence and rejection of the appellant’s evidence

Appellant’s submissions

The appellant refers to paragraph [23] of the reasons where the Member said that the matters which gave rise to the aggravation of the respondent’s underlying condition were not repeated at length and will be dealt with more fulsomely when addressing the defence under s 11A.
The appellant submits that the Member did not identify the matters and disposed of this issue in a single paragraph. Furthermore, the Member did not articulate or give reasons for rejecting the evidence of the appellant.
The Member did not make any reference to the medical evidence with respect to causation. The appellant submits that in paragraph [23] of the reasons the Member said that the lay and medical evidence were overwhelming, clearly demonstrating that the respondent suffered an injury in the nature of an aggravation to her underlying condition. The appellant submits that the Member failed to refer to what actual law (sic, lay) and medical evidence he was referring to. He failed to disclose his path of reasoning.
The appellant submits that so far as the factual issues are concerned, the Member takes time to mention[20] that a record of interview was never given to the respondent. However, the appellant submits that the interview was documented and referred to multiple times throughout the evidence. The appellant’s investigator’s report confirms notes were taken during the meeting.
[20] At reasons, [51].
The Member appears to focus on factually inaccurate evidence “that the record of interview was not provided”. The evidence suggests that it was – if the Member was to reject such evidence, he ought to have made reference to the submissions in regard to this interview and state that he rejected the evidence that it was provided to her. He did not, falling into error.
The appellant submits that the Member misdirected himself regarding the factual findings with respect to “guilty by association”.[21] The appellant says that it was not put to it that it took the position that the respondent was guilty by association. It was not given an opportunity to provide submissions on the Member’s conclusion.
[21] At reasons, [56].
After citing Australian Broadcasting Tribunal v Bond[22] the appellant submits:
“The evidence did not support at any time that the [respondent] was suspected of selling narcotics for financial gain. Indeed, the Appellant did not make that submission. The letter emailed to the [respondent] on 23 March 2022 clearly outlined the allegations against her involving using her employment to obtain hospital equipment for financial gain. There were no references to selling narcotics or any allegations of the worker selling narcotics within the letter or elsewhere in the evidence, and accordingly it was not open for the member to make that inference. Accordingly the member fell into error.”[23] (emphasis in submission)
[22] [1990] HCA 33; 170 CLR 321.
[23] Appellant’s submissions, [3.1.12].
The appellant further complains that due to the brevity of the written reasons with respect to that determination, it may be that the Member has interpreted the allegations as suggesting that the respondent worker had provided narcotics. However, it is not clear as to how the Member reached the conclusion which he did. The pathway of reasoning is not exposed.
The appellant’s position was to investigate the allegations that were made to it by the NSW Police. The connection between the worker, her employment, the arrested parties and the raid locations warranted investigation. The Member’s inference in paragraph [56] was an error of law.
The appellant submits that the medical evidence relied upon by the worker suggests that the injury arose as a result of the investigation concerning the police matter and presenting to work unfit, suspected to be under the influence. “While the worker refers to instances of perceived bullying and/or harassment from individuals in management in her statements, the balance of the medical evidence indicates the investigation was the cause of the worker’s injury and it accordingly was not multifactorial.”[24]
[24] Appellant’s submissions, [3.1.17].
The appellant refers to the inconsistency in the report of Dr Mysore that she concluded that the worker had suffered an aggravation of a pre-existing psychological injury and at the same time concluded that she sustained a primary psychological injury, being a relapse of major depressive disorder. “While Dr Mysore refers to a relapse, there is no suggestion the worker had been previously diagnosed with Major Depressive Disorder.”
The appellant refers to the respondent’s doctor, Dr David Kumagaya, in his report of 22 December 2023 as not concluding that the worker experienced an aggravation in her condition. He did not suggest that there was a finding of a pre-existing major depressive disorder. The worker’s evidence did not substantiate the finding of an aggravation.
The appellant submits that the Member erred in accepting the worker’s evidence regarding the monitoring of co-workers. The Member failed to consider, review or discuss in his reasoning the appellant’s evidence which demonstrated that there were reports that the worker attended work on 25 February 2022 in an unfit state. Management responded by ensuring her colleagues were aware of the processes to be taken if it was suspected an employee was under the influence. While Nathaniel Campbell appears to suggest he was directed to observe the worker to see whether she was under the influence of something, he was not requested to monitor the worker’s behaviour and report to management whether she was under the influence. It is arguable he was merely informed of the complaint and asked to follow policy should it be suspected that the worker attended work unfit. The evidence of Rachel Snowden also indicated this was not the direction provided.
The appellant then directs attention to Raulston v Toll Pty Limited.[25]
[25] [2011] NSWWCCPD 25, [19].

Appellant’s additional submissions following receipt of the transcripts

The appellant submits that the Member failed to provide any consideration of the submission articulated by the appellant at the hearing on 28 June 2024. The appellant submits that there was no attempt to reconcile the multiple histories and versions of events presented by the worker with respect to the timeline of events that led to her injury and there was no evidence of the differential treatment complained of by the worker.
It is submitted further that the Member failed to concisely consider the worker’s statement evidence with respect to the events that occurred in September of 2023 in light of the conflicting versions of Ms Bannerman’s and Ms Maytom’s statement evidence at page 81 of the transcript.
No consideration is given to the alternative versions provided by the documents nor why Ms Maytom’s version was not accepted.
The Member failed to consider that the opinion of Dr Ng was based on allegations made by the worker to the doctor that she was placed under strict supervision when there was no evidence presented by the worker that that was so.
The appellant submits that the Member failed to consider the submission that the worker first saw her GP in August of 2022 regarding workplace issues and she was taking black market Xanax, admitted that her house was raided, revealed that they had found hospital items in her house, and had arrested someone other than her father. These admissions by the respondent to her GP in August of 2022 were not considered by the Member and, further, none of these submissions appeared in the determination.
The Member failed to consider that the worker attended her GP on 4 August 2022 and that there was no other attendance with any other medical practitioner until 13 September 2023.
Furthermore the Member did not consider that although the worker said she was bullied and scrutinised at work for an extended period of time, she provided no evidence of this occurring other than the single September 2023 event.
The Member failed to consider the actual link between the worker and the police investigation and, importantly, it was not disputed by the worker that she had picked up the man who was arrested and returned him to his house.
The appellant provides a timeline which it says the Member failed to consider.

Respondent’s submissions

The respondent submits that the reasons need to be considered as a whole and that it is well established that the decision-maker is not required to deal with every piece of evidence, but it is necessary to explain any inconsistencies and why one body of evidence is preferred to another. The respondent submits that the Member carried out this task comprehensively and with due diligence.
The respondent says that the reasons need not be extensive but must deal with the issues that require findings, conclusions and determination. The respondent cites Resource Pacific Pty Limited v Wilkinson.[26]
[26] [2013] NSWCA 33, [47]–[49], per Basten JA.
The respondent submits:
“Contrary to the Appellant’s submissions, the Member did not misdirect himself, did not fail to engage with the evidence or the cases presented by the parties and he did not misunderstand the evidence. He dealt with the issues comprehensively.”[27]
[27] Respondent’s submissions, [13].
The respondent then refers to paragraph [6] of the reasons, to the fact that matters of relevance occurred in 2022 notwithstanding that the deemed date of injury is 18 September 2023. The Member recorded the documents available to him in paragraph [9].
The respondent submits that the Member’s reasoning in respect of injury is set out clearly in paragraphs [11] to [32] of the reasons.
The respondent then refers to the Member’s reasoning in those paragraphs and concludes:
“Contrary to the Appellant’s submissions at [3.1.26] that [the] worker’s colleagues were likely just provided with instructions in accordance with policy as to what to do if there was a suspicion the worker or any employee attends work under the influence and that this outweighed the worker’s version of events accepted by the Member, it is noted that the evidence of Nathaniel Campbell regarding the instruction from Sue Ison was supported by the evidence of Rachel Snowden, relied on by the Appellant. Ms Snowden’s evidence was that she had received an email from Sue Ison and was ‘provided with instructions on what to do if I believed [the respondent] was under the influence’. Ms Snowden also stated that ‘this was not a surprise to me’ as staff had concerns that [the respondent] had been under the influence’. At [26] of her statement, Ms Snowden says that she observed the worker being ‘quite upset’ and she ‘gathered’ that Nathaniel had told her about the email. It was open to the Member on the basis of the corroborative evidence of Nathaniel Campbell and Rachel Snowden to accept the worker’s version. The evidence only supports one outcome which is that the monitoring direction/email was targeted at the worker and was not some general benign policy directive.”[28]
[28] Respondent’s submissions, [20].
The respondent submits that the evidence from the worker that she felt targeted and disrespected by Ms Maytom was supported by the evidence of Ms Bannerman.
The respondent submits:
“In light of all the evidence before him, the Member clearly weighed up all of the evidence and, it can be reasonably concluded, that the Member did not give undue weight to the evidence of the worker. The evidence of the worker was supported by other witnesses, even a witness who was relied on to give evidence for the appellant.”[29]
[29] Respondent’s submissions, [22].
The respondent refers to the reasons at paragraphs [23]–[25], and [30]–[31], and submits that contrary to the appellant’s submissions, the Member plainly had due regard to the medical evidence in respect of causation.
The respondent submits:
“Contrary to the Appellant’s submissions that there was no evidence of a pre-existing Major Depressive Disorder, there is evidence from the worker’s general practitioner, Dr Ng, that the worker had pre-existing post-traumatic stress disorder, panic disorder and androphobia.”[30] (My emphasis)
[30] Respondent’s submissions, [27].
The Member dealt with the s 11A defence at paragraphs [33]–[66]. The respondent submits that the Member set out the legal principles with respect to the s 11A defence. The respondent refers to paragraphs [47], [52] and [56] of the reasons.
She then says:
“It is respectfully submitted that these statements are part of the analysis undertaken by the Member in respect of the issue of reasonableness in the context of s 11A. The statements were open to the Member to make based on the contents of the Appellant’s letter dated 23 March 2022. They were reasonable and based on the evidence adduced by the Appellant. It was open to the Member to find that the Appellant treated the worker as if she were ‘guilty by association’ based on the evidence of Sarah Morrison in her statement at [44], where she stated that she was told by the police that the worker was a friend of the other man arrested, …, who was a ‘shady drug user’ and unlikely to be employed and there was an assumption that her father’s home had been raided and that he had been arrested.”[31]
[31] Respondent’s submissions, [38].
The respondent submits that the police information was that the raids had been conducted on a person who had told the police that his daughter worked at the hospital and that the worker had been seen in the company of one of the people arrested. The appellant clearly made assumptions about the worker based on her association with the arrested persons and on her presentation at work. A reasonable employer would have carried out enquiries about the assertion that the person involved was indeed the worker’s father and, as found by the Member, once it was known that the accused was not the worker’s father, it would have been reasonable in the circumstances to drop the allegations against her forthwith.
The Member had regard to the time taken for the investigation, which was 12 weeks, during which the worker was required to work on day shift, and that there was a breach of the respondent’s privacy by directing unqualified co-workers to monitor the worker for signs of intoxication in the workplace instead of asking her to agree to a drug and alcohol test.
The respondent submits that a fair reading of the whole of the reasons shows that the Member engaged with all of the evidence and considered the correct legal principles and made findings that were available to him on the evidence.

Appellant’s submissions in reply

The appellant submits that no effort was made by the Member to engage with the evidence or the oral submissions. There was no reference to the comprehensive detailed submissions of the appellant and the respondent in the reasoning.
It is submitted that although the Member is not required to provide a complete account of each party’s submissions, no account of either party’s submissions, brief or otherwise, has been made by the Member.
Section 292(2) (sic, 294(2)) of 1998 Act clarifies the Member’s obligation to deliver brief reasons for decision. The reasons must be sufficient to enable a person to follow the decision-maker’s reasonings.

Consideration

The appellant’s complaint is that the Member failed to engage with the lay and medical evidence so as to exemplify the path whereby he reasoned to a conclusion favourable to the respondent. For the reasons that follow, the appellant’s complaint is correct and Ground 1 of the appeal is upheld.
Section 294(2) requires that a brief statement be attached to the Certificate of Determination setting out the Commission’s reasons for the determination.
Rule 78 of the Personal Injury Commission Rules 2021 provides:
“(1)    This rule applies only in relation to the following applicable proceedings—
(a)Commission proceedings,
(b)…
(2)     A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3)     Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
The enquiry is as to the minimum expression of reasons required to satisfy s 294(2) of the 1998 Act.
However even assessed at a minimum, the Member was nevertheless required to identify the issues, address the evidence relevant to those issues and give reasons for his findings where the evidence is disputed. He is required to give a clear explanation of the reason(s) why some evidence is preferred over other.
The appellant is correct in its submission that the Member, contrary to his expressed intention in paragraph [23], never really articulated the matters which gave rise to the respondent’s injury. Of particular importance is the absence of a detailed consideration of the lay and medical evidence. Specifically, how the accepted lay evidence supported the findings with respect to the medical evidence.
The Member says:
“However, the lay and medical evidence in this matter is, in my view, overwhelming. It clearly demonstrates the [respondent] suffered an injury in the nature of an aggravation of her underlying condition. In so finding, I have had regard to the lay and medical evidence in addressing the cause of the aggravation, not the underlying condition.”[32]
[32] Reasons, [23].
On the question of causation, Dr Ng said in his report dated 24 November 2023:
“It is my professional opinion that the main contributing factor in [the respondent’s] current depressive, anxiety and PTSD symptoms is the psychological workplace injury stemming from the events described in my answer to part b) and the ongoing investigative process.”[33]
[33] Application to Resolve a Dispute (ARD), p 171.
Dr Ng in his report of 24 November 2023 says that the history he obtained was that the respondent recalled having allegations of theft and intoxication levelled at her and being placed under strict supervision, being required to attend multiple meetings and interviews which she felt were interrogative in nature. She reported a major factor exacerbating her symptoms was the demeanour and action of her supervisor, who she noted as having no concern for the immense psychological stress the process placed on her. She reports being cleared of any wrongdoing by NSW Police Force and the appellant’s internal investigative process, despite this she notes she was not offered any support or apologies for the way she was treated. The respondent reported ongoing workplace stress due to increased scrutiny and hostility from her co-workers.

That history was plainly not accepted by the appellant’s witnesses. Ms Morrison, the acting HR manager for the appellant, provided a lengthy statement detailing the history from the appellant’s point of view. The Member simply did not refer to the matters adverted to by Ms Morrison which contradict the history obtained by Dr Ng.
Dr Kumagaya diagnosed the respondent as suffering from a major depressive disorder with anxious distress. He said:
“[The respondent’s] major depressive disorder with anxious distress is a primary psychological injury, sustained as a result of her employment with [the appellant]. [The respondent’s] work injury is a disease condition, the main contributing factor to which was her employment with [the appellant].”[34]
[34] ARD, p 162.
In response to the enquiry as to whether or not the respondent’s psychological injury was wholly or predominantly caused by reasonable action taken by her employer, Dr Kumagaya says:
“Attention is drawn, firstly, to the fact that [the respondent’s] index accusation by her manager was not qualitatively related to the investigation solicited by NSW Police and [the appellant], but rather, a distinct allegation about her working under the influence. [The respondent] found various aspects of this allegation, as well as the manner in which it was investigated, to have been most unreasonable. [The respondent] described how she was not alerted to such allegations until after her colleagues had been notified by her manager. Further to this, [the respondent] also described how her managers utilised her colleagues to supervise and observe her for signs of intoxication, which rendered [the respondent] most uncomfortable at the workplace. [The respondent] explained that despite numerous attempts at procuring further details about the allegations that had been made about her ‘strange’ behaviour, that no further information was ever provided.
Furthermore, [the respondent] highlighted several aspects of the investigation by NSW Police and [the appellant] which she experienced to be unreasonable. Significant and fundamentally, she highlighted how NSW Police had mistakenly implicated her in their investigation, based on the erroneous identification of her father as being one of individuals arrested during a raid. [The respondent] stated that this error resulted in her being accused of a range of false accusations, which subsequently resulted in her experiencing differential and hostile treatment at the workplace.
[The respondent] explained how it was the culmination of the above factors, which resulted in the onset of her primary psychological injury, major depressive disorder with anxious distress, and her subsequent incapacity for work.”[35]
[35] ARD, p 163.
The specialist relied on what he was told by the respondent. The appellant’s witnesses contradicted the respondent, particularly with respect to the claim by the respondent that she was strictly supervised and observed. Furthermore, the appellant’s witnesses provided explanations of their actions. The Member seems to have taken the view that all that was required was to have regard to the respondent’s perception of the events.[36] But there is a difference between a mistaken perception of a real event and exaggeration or dishonest response. The Member was required to examine the evidence of the major witnesses for inconsistencies, contradictions and plausibility to determine the appropriate findings to be made and having made those findings consider the medical evidence.
[36] See reasons, [28].
The Member was required to engage with the witness statements of the appellant and the respondent, form a view and express a finding as to whether having regard to the facts as found, the opinions and conclusions reached by the doctor(s) should be accepted.
The Member made express reference to Dr Mysore, the IME retained by the appellant.
Dr Mysore concluded that the respondent had suffered:
“The relapse of Major Depressive Disorder … a primary psychological injury directly linked to her work environment. The toxic workplace culture and interpersonal conflicts experienced by the worker significantly contributed to the exacerbation of her depressive symptoms, resulting in a relapse of MDD. Therefore, the worker’s condition meets the criteria for a primary psychological injury under DSM-5 guidelines as outlined above.”[37]
[37] Application to Admit Late Documents 6 May 2024 (AALD), p 7.
Dr Mysore said:
“The worker’s state of health before the injury and the existence of that hereditary risks: While the worker had a history of Bipolar Affective Disorder and an experience of intimate partner violence, the relapse of Major Depressive Disorder was directly linked to the workplace environment, independent of her pre-existing condition.”[38]
[38] AALD, p 8.
However the appellant is correct, there is no evidence that the respondent had a pre-existing major depressive disorder.
Furthermore, when addressing the question of whether or not the condition arose wholly or predominantly from action involved in discipline, Dr Mysore says:
“Given the information provided by Dr Ng regarding the mechanism of injury, it appears that the worker’s injury was predominantly caused by the action taken, or proposed to be taken by [the appellant], with respect to discipline and/or performance appraisal. The severe depressed and anxious mood experienced by the worker, stemming from the allegations of serious misconduct and the subsequent investigative process, directly correlates with the actions and decisions made within the workplace environment. Therefore, it is reasonable to conclude that the worker’s primary psychological injury was predominantly caused by the actions and proceedings initiated by [the appellant] regarding discipline and performance appraisal.”[39]
[39] AALD, p 10.
The Member did not accept this conclusion, but, as shall be demonstrated in relation to Ground 3, the Member was in error in failing to do so.
The point is that the Member did not engage with the evidence either lay or medical. With respect, the Member was required to do more than have regard to the lay and medical evidence in addressing the cause of the aggravation, he was required to analyse the evidence and make findings.
In my view, Ground 1 of the appeal is made out and the matter must be remitted for redetermination. It is not necessary to deal further with the appellant’s submissions in support of Ground 1.

Ground 2 – The Member erred in law in his conclusion with respect to injury within the meaning of s 4(b)(ii) of the Act and in addition the Member erred in law in his finding as to factual causation

Appellant’s submissions

The Member deals with what the respondent reports as causative of her condition at paragraphs [12]–[20] but the eight paragraphs list out only generalised issues in early 2022. Very little is referred to with respect to the allegation relating to the medical equipment which the medical evidence states as causative of the respondent worker’s condition. The medical evidence does not identify the issues referred to by the Member at [12]–[20] as causative.
As discussed in relation to paragraph [23], the Member does not articulate the lay and medical evidence required to provide a causative determination on injury. The Member was required to make findings with respect to the causative factors and whether the employment was the main contributing factor to the aggravation. It was not sufficient that the event or events occurred at work as injury was put in issue. The Member did not address the relevant test for s 4(b)(ii) of the 1987 Act.
Furthermore, the Member reversed the onus at paragraph [60]. The respondent did not articulate the submission embodied in paragraph [60]. It follows that the appellant was denied procedural fairness in not being able to address the conclusion reached in that paragraph.
The Member’s conclusion that the allegations were maintained for an unacceptably long period was unsupported by the evidence. The appellant in a short period determined the issues and found the allegations relating to the equipment was not sustained.
The appellant submits that what the evidence does reveal when correctly and thoroughly considered was an internal investigation was authorised to proceed on 11 March 2022. The allegations were provided to the worker on 23 March 2022. The worker provided a response to the allegations, which largely requested further clarification, on 4 April 2022. The appellant provided a response to the worker on 13 April 2022. There was a meeting on 14 April 2022. The worker provided a further response to allegations on 19 April 2022. There were further conversations on 27 April which resulted in the notification of a change of the words used in the allegations on 2 May 2022. The Union on behalf of the respondent worker raised issues with the conduct of the investigation on 4 May 2022 and a response was provided on 10 May 2022. The investigation team allowed a period for reply from the Union. The worker was provided with notification of investigation findings, outcomes and proposed action on 14 June 2022.
The evidence supported a conclusion that the investigation was undertaken in a timely manner without delay, opportunities were provided for the respondent worker to respond and she was kept updated. The Member failed to consider any of this history and if he did it is not clear on the face of his reasoning nor his determination on finding of fact in paragraph [60].

Appellant’s additional submissions following receipt of the transcripts

The appellant refers to the transcript of proceedings of 28 June 2024 at page 69 and following and submits:
“Dr Ng’s opinion was based on the worker’s ‘reporting of ongoing workplace stress and increased scrutiny and hostility,’ where the evidence revealed that following the events in June 2022, the worker articulated no evidence to support that conclusion until the September 2023 event (28/6/24 Transcript 86–87). The [Member] made no efforts to reconcile these inconsistencies with the worker’s evidence.
The Member failed to deal with the submission that the worker made no contemporaneous reports to her treating practitioner (28/6/24 Transcript 88–89).”

Respondent’s submissions

The respondent submits that the Member did not reverse the onus of proof. The Member relied on primary evidence from the worker and from medical experts to form a conclusion in respect of the causative factors.
The respondent submits that the evidence from the worker is set out in the materials and shows that it took at least 12 weeks for the investigation outcome. In the meantime, she was removed from night shifts which she preferred for reasons of her androphobia and she was required to be monitored. As stated by the Member, a reasonable employer would have dropped the allegations once it was known that the accused person was not the worker’s father. As noted by the Member, the appellant could have access to the worker’s personnel records which would have shown that the accused was not her father at an earlier stage, such as when the police first approached the appellant. The allegations were of very serious criminal misconduct, observed by the Member as serious allegations requiring serious proof. The statement of the Member at [60] of the reasons that the appellant had not provided any evidence as to how the sterilisation technician would have access to narcotics which were found in the possession of the accused person was not determinative of the reasonableness issue. It was one matter that the Member considered had not formed part of the consideration of the appellant.
Furthermore, timeliness was but one factor.

Appellant’s submissions in reply

The appellant relies on Shellharbour City Council v Rigby[40] which makes it clear that if the Member’s findings were so against the weight of evidence, that would disclose error. In particular the Member placed no reliance on the various histories provided by the respondent worker herself to the medical practitioners, including treaters, concerning the cause of the respondent worker’s condition. The Member made a finding concerning causation on the factual evidence which was not correct.
[40] [2006] NSWCA 308.

Consideration

Notwithstanding the somewhat misleading text of this ground of appeal, from the submissions it appears the appellant’s first complaint is that the investigation process was not unduly long and the Member erred in finding to the contrary. In my view the Member’s finding was open on the evidence and should not be disturbed.
The appellant complains that the Member did not read the letter of 23 March 2022 correctly. The Member quoted the letter of 23 March 2022, which he said asserted that the respondent was essentially selling narcotics for financial gain. But, with respect, the letter is clear, it contains no assertion with respect to the respondent’s conduct.
The letter records what the NSW Police presumably told the hospital and then records the “allegations” as they relate to the respondent’s actions. There is a difference between an accusation that the respondent was selling narcotics and a statement that it is alleged that she has misused her employment to access the appellant’s pharmaceutical agents and that the provision of these items to external parties has attracted financial gain. The former is an accusation, the latter is an enquiry.
In my view the reading of the letter adopted by the Member is “strained”. It cannot be said to be in error.
The difficulty with the Member’s conclusion with respect to causation is that it goes no further than medical and lay evidence in support of the proposition that the respondent’s employment was causative of her injury. That does not answer the question of what aspects of the respondent’s employment were causative of what injury.
As pointed out above, the Member fails to engage with the evidence and accordingly fails to determine correctly that the employment was the main contributing factor in the respondent’s condition. It simply does not answer the question posed by s 4(b)(ii) of the 1987 Act to say that “[t]here is no evidence to suggest the deterioration in the [respondent’s] condition was caused by anything other than her employment.” The Member was required to make a finding as to what aspect of the employment was the main contributing factor.
The appellant was entitled to know what the Member had determined caused the respondent’s injury and this was not satisfied by referring to “work-related factors” without identifying what specifically the Member had in mind.
I uphold Ground 2 of the appeal so far as it relates to the complaint as to the Member’s finding with respect to causation.

Ground 3 – The Member erred in his conclusions regarding s 11A, that the injury was not wholly or predominantly caused by the reasonable actions of the appellant and whether they were reasonable – the second limb

Appellant’s submissions

The Member places no weight on the medical evidence regarding the cause of the respondent worker’s condition. In his acceptance of the respondent worker’s statement, he failed to consider the medical evidence and evaluate the actual medical opinions regarding causation of her condition.
Further, the Member failed to consider the factual issues with respect to the s 11A argument. The conclusions and inference mentioned above were relevant to the determination of the defence and its rejection. In failing to provide reasoning and a basis for his conclusion the Member also failed in his ultimate conclusion that the s 11A defence failed.

Appellant’s additional submissions following receipt of the transcripts

The appellant submits that the Member failed to consider the evidence of Ms Morrison with respect to the information provided by the police. The reference is to pages 98–99 of the 28 June 2024 transcript.
The Member failed to consider lengthy submissions regarding the actions of the employer.

Respondent’s submissions

The respondent relies upon her submissions made in response to the other grounds of appeal.
In addition, the respondent submits that the Member in fact was not satisfied the injury was wholly or predominantly caused by the reasonable actions taken or proposed to be taken by the appellant in respect of discipline. Although he dealt with the evidence extensively and found that the actions were not reasonable, he stated at [63]–[66] that the s 11A defence must fail because he was of the view that it was the entirety of the matters with which the respondent experienced difficulties in the workplace which caused the aggravation injury. The Member considered the aggravation injury was multifactorial and even though the question of the allegations was disciplinary in nature, the other conduct could not be so.
He did not accept that the incident that resulted in the worker ceasing work in September of 2023 was of a disciplinary nature. For those clearly articulated additional reasons the Member found s 11A failed.

Appellant’s submissions in reply

The appellant complains that the Member did not expose his path of reasoning with respect to the s 11A defence.
The appellant refers to South Western Sydney Area Health Service v Edmonds,[41] quoting from McColl JA to the effect that the bare ipse dixit of a scientist, however eminent, upon an issue of controversy will normally carry no or little weight.
[41] [2007] NSWCA 16.

Consideration

The Member says that the cause of the aggravation of the worker’s condition was multifactorial. He says that the allegations against the worker were disciplinary but that the other conduct could not be said to be so.
He then says:
“For example, placing a worker with the [respondent’s] pre-existing issues on shifts where she would be exposed to contact with strange men cannot, in my opinion, be said to be conduct in the nature of discipline. Nor in my opinion is the demeaning conduct of having coworkers monitor and attempt to assess the sobriety of the [respondent].”[42]
[42] Reasons, [63].
Firstly, in relation to the placement of the respondent on day shift in circumstances where she was exposed to the presence of tradesmen, that appears to have been part of the investigative process and, secondly, with respect, tradesmen are not necessarily “strange men”. Thirdly, there is really no basis upon which to suggest that that event of itself had anything to do with the aggravation of the respondent’s condition.
The conduct of the co-workers in relation to monitoring and/or assessing the sobriety of the respondent, with respect to the Member, has not been the subject of any factual finding. Because he did not analyse the lay evidence but simply accepted the respondent’s evidence there is, with respect, no basis for him to have concluded that the conduct was demeaning.
The event which occurred immediately before the respondent ceased work in September of 2023 does not appear to have been causative at all. No doctor seems to refer to what occurred on 13 September 2023 as causative of the respondent’s condition.
It therefore follows that the Member’s consideration of the issue of “whole” or “predominant” cause was inadequate. Ground 3 of the appeal is made out.

CONCLUSION

The Member’s analysis of the evidence and determination of the issues was inadequate and failed to satisfy the requirements of s 294(2) of the 1998 Act and r 78 of the Personal Injury Commission Rules 2021. In the circumstances, the Certificate of Determination is revoked.
The matter is remitted for allocation and rehearing.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

16 July 2025